Board of Review; Holdings, Opinions and Reviews, Volume VI
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Judge Advocate General's Department Holdings, Opinions and ReviftB Voluae VI including CM 202213 to CK 202976 (1934-1935) LA J N y Office of The Judge Advocate General Washington: 1944 01947 CONI'EN'l'S OF '1'0WME VI Cll No. Accused rate Page 202213 Uallon 12 Sep 1934 1 202225 Leach, Staples 15 Aug 1934 11 202243 Ysabel 27 Aug 1934 15 202250 De Ramos 15 Sep 1934 17 202253 Dosher 10 Nov 1934 23 202290 Lowr1 2 Oct 1934 67 202359 Turner 19 Nov 1934 ~ 202366 Fox 8 Oct 1934 129 202479 &.bbington 3 NOT 1934 157 202482 White 5 Nov 1934 165 202601 Sperti 10 Apr 1935 171 202720 Clem 14 Jan 1935 251 202770 Coole7 13 May 1935 259 202782 Roberts 23 Jan 1935 291 202819 Rogers 6 May 1935 303 202846 Shirley 25 liar 1935 337 202849 :Mix 4 Feb 1935 363 202861 Norbeck 4 Feb 1935 369 202928 Cooley 6 liar 1935 371 202940 Riggs 15 Feb 1935 379 202951 Wyatt 14 liar 1935 385 202976 Baker, Krueger, Johnson 2 Mar 1935 389 (1) WAR DEPARTMENT In the office of The Judge Advocate General Washington, D.C. Board of ReTi ew CM 202213 SEP 12 l~.34 UNITED STATES ) UNITED STJ.T&S MILITARY ACADEMY ) v. ) Trial by o.c.M., convened ) at West Point, New York, Private WRRAY E. MALLON ) J'U.ly 10, 1934. Diahono:re.ble (6712062), Dl!XL (U.S.M.A..), ) discharge and confinement for Field Music Detachment. ) three (3) months. West Point, ) New York. REVIEW by the BOA.RD OF REVIEW TtJRNBULL, KING and HA.LL, Judge Advocates. l. The record of trial in the case of the above nemed soldier ha& been examined by the Board of Review. 2. The Charge and Specification are as follows: CHARGE: Violat1on of the 93d Article ot war. Spec1f1cation: In that Pr1n.te Murray E. Mallon, Detached Enlisted Men's List, (U.S.M.A.), Field :t.t.tsic Detach• ment, did, at West Point, New York, on or about J\lne l&, 1934, feloniously take, steal, and carry away one (1) Riding Crop No. 4231', value aboui three dollars and fift7 cents ($3.50), the property of the Post Exchange, West Point, N. Y. Accused pleaded not guilty to, and was found guilty of, the Charge and Specification, and waa sentenced to dishonorable discharge, forfeiture of all pay and allowances, and continE111ent at hard labor for six months. The reviHing authority approved the sentence but reduced the period of confinement to three months and w1 tbheld the order for execution of the Hn.tence purauant to Article of war 50f• (2) 3. The evidence will not be set out in detail but may be summarized as tollows: Master sergeant Mahan, First sergeant of the Band and P'ield Jlllsic Detachment, to which accused bal.onged, atter warning accused ot his consUtutional rights and asking hilll it he (accused) had aey ob• jection to having his locker inspected, went to accused's locker with accused end two other noncamnissionsd officers, opened it, 8lld found a riding crop therein, which accused said was hia. Sergeant Mahan then went to the Post Exchange and got Mr. ICuahn, Post Exchange steward, again went to accused's locker, and in his presence again opened it and showed the riding crop hanging therein to Mr. Kuehn, who claimed it as the propert7 or the Post Exchange. Accused admitted that he got it at the Post Exchange, and, when Mr. KUehn asked it he paid tor it, answered, "Hell, no, you. know I didn't pay tor it. I stole it". Mr. Kuehn recognized the riding crop as property or the Poat Exchange by an adhesiTe band around it and the ae.rkinga on that band. He further testified that it the riding crop had been sold the a.al.Ea would have been made by either of ho aalea11.en named Roach and Weyant. Messrs. Roach and Weyant were called and testified to haTing seen accw,ed about the Poat Exchange but further stated positively that they had not sold a riding crop to him. To sell one to an enlisted man would be a strange circumstance, especially to an enliated man in the branch to which accused belonged. -'• Accused• 11 statement above quoted amounts to a confession, and the question 111 presented whether or not the record contains aliunde the conteaaion sufficient evidence of the corpus delicti. 5. Professor Wigmore, 1.J1 his monumental work on eTidence, diacuaaea the requirement ot evidence ot the corpus delicti aliunde the confession in sections 2070, .!! seq. Atter acbitting the existence ot the general rule that a conteasion must be corroborated, the learned author aaya: "The policy- of any rule ot the sort is questionable. No one doubts that the warning which it conTeya 1s a proper one; but it 1s a warning llhich can be given with equal efficacy by counsel or (ill a jurisdiction preserving the orthodox function of judges) by the judge in hill charge on the tacts. Camnon intelligence e.nd caution, in the Jurors' minds, will sufficiently appreciate it, without a layi11g on ot the rod ill the shape of a rule of law. -2- (3) MoreoTer, the danger which it 1s supposed to guard against is gree.tly exaggerated in common thoUght. That danger liea wholly in a talse confession or guilt. such contessions, however, so tar as handed down to us in the annals or our courts, have been exceedingly rare (ante, aec. 867). SU.ch a rule might ordinarily, it not really needed, at least be merely supertluous. Bllt this rule, and all such rules, are to-day constantly resorted to by unscrupulous counsel aa mere verbal to:rmulaa with which to entrap the trial judge into an error or words in his charge to the Jury-. These capabilities or abuse make it a positive obstruction to the course or justice.• The reqUi:rement or such corroboration is or course too well settled to be oTerthroe by the opinion or Protessor Wigmore or any one else that such a requirement is superfluous and unwise, but his opinion aa above stated is Taluable as a caution that the requirement of such corroboration ought not to be extended turtb.er than is ma.de necessary by existing precedents. ProfHaor lt'igmore turther says (sec. 2071): •In a tew Jurisdictions, the rule ia properly not limited to evidence conerning the •corpus delicti•; i.e. the corroborating tacts may be or any~ whatner, pro Tided only that they tend to produce a contidence in the truth or the conteasion. * * * * But in most Jurisdictions the stricter tol'lil or ru.le is taken, and the evidsnce must concern the •corpus delicti"'• '!'he author next takes up the detinition or corpus delicti (aec. 2072): "The meaning or the phrase •corpus delicti• has been the subject or Dll1Ch loose judicial comuent, and an apparent sanction has otten been given to an unjustifiably broad meaning. It 1a clear thd an e.Dalyaia or every- crime, with reference to this elemaut or 1t, reveals three component parts, first, ~he occurrence of the specific kind or injury or loaa {as, in homicide, a person deceased; in arson,.a houH burnt; in larceny, .property missing); secondly, aome body•a crillinality as the source or the loaa,-thaae two \ -3- (4) together 1nTolvil:lg the conmission of' a crime by sanebody; and, thirdly, the accused's identity aa the doer of' thia crime. (1) Now, the te:rm •corpus delicti• aeems in its orthodox senae to signify merely the tirat of' these elements, namely, the .!!,il .£!. ~ specific ~ !:?.!: injurz: sustained: * • • • This, too, is •a priori' the more natural meaning; for the contrast between the first and the other elements is what 1a emphasized by the rule; i.e. it warns us to be cautious in conTicting, since it may subsequently appear that no one has sustained any loss at all; for eX8DIPle, a man baa disappeared, but perhaps he may later reappear alive. Tot find that he is in truth dead, yet not by criminal violence --i.e. to find the second element lacking ia not the die• coTery against which the rule is designed to warn and pro tect us. (2) But by most judges the tenn 1• made to include the second element also: * * * * Thia broader f'onn makes the rule much more ditf'icult tor the jury to apply amid a complex masa of' evidence, and tends to reduce the rule to a Juggling•f'omula. (3) A third Tiew, indeed, too.absurd to be argued with, has occasionally been adTanced, at least by counsel, namely, that the •corpus delicti' includes the third element also, i.e. the accused'• identity or agency as the criminal." 6. The Board has been unable to find any decision by the supreme Court of' the United States with respect to the corpus delicti which is helpful in the problem now before it. The decis1ona ot the state courts are so numerous and so variant that it is impo••J.ble to hannonize them, and it would unduly prolong this review even to discuss them. The cases concerning the corpus delicti in the courts of the United States interior to the supreme Court are, however, sutf'iciently tew and harmonious to make a consi~eration or them helpful. The earliest or such cases is United States v. Will1mns, l Clittord :s, Fed. case No. 16707, in the Unitad states Circuit Court ror Maine, 18:SB. That waa) an indic1ment •4- ,(5) tor murder on the high seas.