offenses charged did not survive the honorable discharge (United States ez rel. Hirshberg v. Malanaphy, (1947) 73 F. Supp. 990). The accused was released from arrest and restored to duty.

Subsequently, an appeal was taken from the District Court of the United States for the Eastern District of New York to the United States Circuit Court of Appeals for the Second Circuit. The Court held that the relator's honorable discharge on March 26, 1946, did not terminate the jurisdiction of the Navy to call him to account for offenses during that enlistment if he should reenlist, as he did the following afternoon, and his consent to subject himself to all existing regulations answers any constitutional objection which can be raised ((1948) 168 F. 2nd 503). The Circuit Court of Appeals decreed that the order of the District Court be revised with directions to dismiss the writ and remanded the relator to the custody of the appellant.

The case was then brought to the Supreme Court of the United States on writ of certiorari. In an opinion delivered by Mr. Justice Black on February 28, 1949, the Supreme Court held that there was no authority for the Navy to try the accused for the offenses of which he was convicted, none of which constituted a violation of Article 14, Articles for the Government of the Navy. This opinion was based primarily on the ground that Congress had not expressly provided for jurisdiction in such cases and that both the Army and the Navy had for many years construed the law as not authorizing the exercise of court-martial jurisdiction over enlisted personnel discharged from the service after re-entry therein except for violations of Article 14, Articles for the Government of the Navy, and the comparable Article of War. The action of the Circuit Court of Appeals was reversed (United States ex rel. Harold E. Hirshberg, Petitioner v. Captain W. R. Cooke, Jr., U. S. Navy, Commanding Officer, U. S. Naval Receiving Station, Brooklyn, New York, (1949) 336 U. S. 210, 69 S. Ct. 530). (File: MM-Hirshberg, Harold E./A17–20, 25 March 1949.)

A lesser included charge is not to be preferred separately where the more serious charge is used.

A general court martial convicted an accused of the charges of (I) “Conduct to the prejudice of good order and discipline" (3 specifications; specifications 2 and 3 proved by plea; specification 1 proved); (II) "Robbery"; and (III) “Unauthorized absence." He was sentenced to confinement for a period of seven years, a dishonorable discharge and accessories. The convening authority approved the proceedings, findings, and sentence, but reduced the period of confinement to five years.

Specification 1 under Charge I alleges that the accused

did, on or about October 15, 1948, on a road connecting Marine Drive and U. S. Naval Air Station, Agana, Guam, Marianas Islands, wilfully,

maliciously, and without justifiable cause, strike one M— G. L—, a civilian." The single specification under Charge II alleges that the accused did, on or about October 15, 1948, on a road connecting Marine Drive and U. S. Naval Air Station, Agana, Guam, Marianas Islands, with force and violence, feloniously make an assault upon one M-G. L, and did feloniously rob, take, steal and carry away from the person of the said L- the sum of about forty dollars ($40.00)

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*

It is apparent from the pleadings and the evidence adduced that the striking alleged in specification 1 under Charge I constituted the force and violence essential to proof of robbery alleged in the specification under Charge II, and, as such, was included in and a part of the allegations under the latter charge. Accordingly, in order that the accused may not stand convicted of two offenses on the elements of only one, the findings on specification 1 of Charge I, and the action of the convening authority thereon, were set aside (C. M. O. 3, 1943, 26).

It is noted that the convening authority reduced the period of confinement from seven years to five years without reducing the corresponding accessories. Whenever a sentence involving confinement with corresponding accessories is mitigated by reducing the period of confinement, the corresponding accessories should be reduced by an equivalent amount (C. M. O. 2, 1949, 43). Accordingly, the accessories were reduced to correspond with the period of confinement as mitigated. (File: MM-Smith, Albert C./A17-20, 13 April 1949.)

Additional evidence discovered subsequent to a trial may form basis for granting the accused a new trial, even though such evidence is not classified as "newly discovered."

A general court martial convicted an accused of the charge of "Striking another person in the Navy" (specification proved in part). He was sentenced to reduction to the rating of steward recruit, confinement for 24 months, a dishonorable discharge and accessories. The convening authority approved the proceedings, findings, and sentence, but reduced the period of confinement to 12 months.

The records shows that the defense was an alibi. The crime was alleged to have been committed in the P. I. Cafe in San Diego, California, at about 2400, May 19, 1948. Subsequent to the trial, counsel for the accused, in further discussion with the latter, discovered that the owner of the P. I. Cafe and a waitress employed therein at the time of the stabbing were willing to testify that the accused was known to them personally and that he did not appear in the P. I. Cafe during the evening of May 19, or the early morning of May 20. Affidavits of the owner of the cafe and of the waitress have been presented. While these affidavit are not newly discovered evidence within the meaning of the rule governing such, these affidavits do

This

indicate that certain evidence material to the establishment of the accused's alibi defense may exist which was not before the court originally in passing on the guilt or innocence of the accused. additional evidence is considered material to such extent that it should be placed before the court.

Based on the above, the Acting Secretary of the Navy directed that the accused be informed that should he so request, he would be granted a new trial on the same charges and specifications as were found proved by the court. The accused requested that he be granted a new trial. Accordingly, the proceedings, findings, and sentence, and the action of the convening authority thereon, were set aside. MM-Abutin, Benjamin B./A17–20, 21 April 1949.)

(File:

Although persons may have combined for an assault, it does not follow that all are guilty of a felony committed by one of them.

A general court martial tried in joinder three privates first class, A, B, and C, and one private, D. Each was convicted of the charges of (I) “Robbery"; and (II) "Striking another person in the Navy." A, B, and C were sentenced to reduction to the rank of private, confinement for a period of ten years, a dishonorable discharge and accessories. D was sentenced to confinement for a period of ten years, a dishonorable discharge and accessories.

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*

The specification under Charge I, "Robbery," alleges that the accused did, each and together, on or about July 31, 1948, in or near the city of Jacksonville, North Carolina, with force and violence, feloniously make an assault upon one WH— H—, hospital corpsman second class, U. S. Navy, and did feloniously rob, take, steal and carry away from the person of the said H- the sum of about three hundred twenty dollars ($320.00) * * *." The specification under Charge II, "Striking another person in the Navy," alleges that the accused * * did, each and together, on or about July 31, 1948, in or near the city of Jacksonville, North Carolina, wilfully, maliciously, and without justifiable cause, strike one AJ. H-, corporal, U. S. Marine Corps."

The evidence adduced at the trial showed that on the afternoon of July 31, 1948, Corporal A― J. H—, U. S. Marine Corps, and his brother, W— H. H—, hospital corpsman second class, U. S. Navy, visited a tavern near Jacksonville, North Carolina, operated by one G L and known as "L-'s Place." Corporal H- was dressed in civilian clothes. His brother was wearing a white Navy uniform and had on his person approximately three hundred and forty-seven dollars ($347.00). After the H- brothers arrived at L's Place, three of the accused, A, B, and D, drove up in a station wagon, came into the tavern and occupied a booth several feet from where W- H- was talking to G-L. Shortly thereafter, C, apparently unknown to anyone in the tavern, arrived and invited A, B, and D to join him in

drinking a pint of whiskey. During the conversation between W- H— and GL, the former took his money from his wallet and displayed 17 twenty-dollar bills to L-. The evidence did not establish whether any of the accused observed the money or heard the conversation between H- and L- concerning the money.

Corporal H― approached B and asked the latter to drive him and his brother to Jacksonville, whereupon the H-brothers, with A, B, and C, departed in the station wagon, leaving D at L's Place. En route to Jacksonville, Corporal H- suggested that all drive to Wilmington, N. C., to attend a dance. All agreed and B proceeded to a place known as "Trailer Park" to obtain permission of the owner of the station wagon. On the way, W- H- stopped off at a place known as the "VFW." Returning to Jacksonville from Trailer Park, W-H- was picked up at the "VFW," and all proceeded to a cafe in Jacksonville where they drank some beer. There were three fifths of whiskey in the party, and the evidence indicated considerable drinking during the afternoon, with A doing the most.

A and D were dressed in Marine uniforms, while B and C were in civilian clothes. From the cafe the party returned to L-'s Place, apparently to pick up D for the trip to Wilmington. D expressed a desire to change into civilian clothes before leaving, and an argument ensued in front of the tavern between D and Corporal H- on this matter. The evidence was contradictory as to how serious the argument became, but it appeared that D and Corporal H- were about to engage in a fight when O— L came out and stated that if anyone wanted to fight, they should go down the road. In any event, the entire party, including D, got into the station wagon and drove away toward Wilmington. At this point Corporal H― apparently considered that the argument was over, although G-L- testified that all of the party got into the station wagon and said they would go up the road and settle the argument. The evidence showed that B was driving the station wagon, with W- H- on his right. C sat behind B and Corporal H- sat behind W- H-. A was in the rear seat behind C, and D sat behind Corporal H.

After the car had proceeded three miles down the highway toward Wilmington, it turned off to the right on a sandy, side road. The testimony of the H— brothers indicated that although they made no protest, they did not know why the station wagon turned off the main highway and could recall no conversation in this regard. The written statements of A and D, introduced by the prosecution, indicated that Corporal H— suggested making the turn-off. Corporal H— testified that he was then struck from the rear by D, and when the station wagon stopped on the side road, he was pushed out the side by C. The statements of the accused indicated that at about the time the station wagon came to a stop, Corporal H— picked up a wrench

from the floor and that this was taken out of his hand by A. Corporal H- and D engaged in what Corporal H- called "a fair fight, and a clean fight" for about 5 minutes. Corporal H- was getting the worst of it and when he attempted to run away, he was tackled by someone whom he could not identify. He was then given a severe beating in the face by D and knocked into a state of unconsciousness. D's written statement indicated that he inflicted the severe beating on Corporal H- because the latter had kicked him in the area of the groin.

The evidence further showed that when W- H- endeavored to interfere verbally in the fight between his brother and D, A and B turned on W-H- and gave him a beating about the head and face to the point where he lost consciousness. Both the prosecution and defense evidence indicated that C took no part in either fight beyond pushing Corporal H- from the station wagon at the outset.

Testimony for the prosecution, as substantiated by the written confession of A, established that while W-H- was lying unconscious on the ground, A removed 16 of the 17 twenty-dollar bills from his wallet, returning the wallet with one twenty-dollar bill to H-'s trouser pocket. A, testifying in his own defense, admitted fighting with W-H- after the latter had struck him, and further admitted taking money from H-'s wallet while H- was lying on the ground. While engaged in this act, A heard B say, "Don't do that." A denied that B, C, or D had made any prior plans with him to take anything from H. He denied specifically that B or C had anything to do with taking the money. The four accused then got in the station wagon and started back to the highway, leaving the H- brothers lying in the road. While en route to the highway, A testified that he then realized what he had done and asked, "What are we going to do with this money?" D said, "What money?" When A replied that he had taken some money off the sailor, D said he knew nothing about it and didn't want to have anything to do with it. As the four accused approached the highway, they were stopped by the county sheriff who had been summoned by a prosecution witness, G― N—. The latter had observed the fight from a distance of 60 yards.

When the sheriff stopped the station wagon driven by B, C was on his right, D was behind B, and A was seated on the right side back of C. In both his confession and oral testimony, A stated that when the station wagon came to a stop, he got out on the right side, kicked a hole in the sand, dropped the money into it, covered up the hole, and then went around to the other side of the station wagon to talk to the sheriff. Two days after the incident, A, while in the brig, drew a rough diagram which enabled an investigator and the sheriff to find the 16 twenty-dollar bills buried in the sand. Two boys, however, 11 and 12 years of age, who were standing nearby, identified C as the one who got out of the station wagon on the right side, kicked his foot around, and bent over as though he were brushing off his shoes.