Evans v. Hunter

• Citation: 94 F. Supp. 837
• Decision Date: 10 January 1951
• Docket Number: No. 1472.,1472.
• Parties: EVANS v. HUNTER.
• Court: U.S. District Court — District of Kansas

94 F. Supp. 837

EVANS v. HUNTER.

No. 1472.

United States District Court D. Kansas.

January 10, 1951.

Howard F. McCue (of McCue & McCue), Topeka, Kan., Clyde Vinson, San Angelo, Tex., on brief, for petitioner.

V. J. Bowersock, Asst. U. S. Atty., Malcolm Miller, Asst. U. S. Atty., Topeka, Kan., and Lieutenant-Colonel Reginald C. Miller, JAGD, Washington, D. C., for respondent.

MELLOTT, Chief Judge.

Petitioner, an inmate of the United States Penitentiary at Leavenworth, Kansas, has again assailed, in a habeas corpus proceeding, the validity of his detention. The Findings of Fact and Conclusions of Law, entered and made by The Honorable Eugene Rice, Judge Assigned, in the earlier case (Docket No. 1279 H.C.) following a complete hearing, filing of briefs and argument upon various motions are, by this reference, again found and made, except as otherwise indicated. The judgment entered in that case was affirmed, upon appeal to the Court of Appeals for the Tenth Circuit,¹ "without prejudice to the filing of a new application for a writ of habeas corpus after having first complied with the requirements of Article of War 53, 10 U.S.C.A. § 1525."

Following affirmance of the judgment in the earlier case, a petition was filed with the Judge Advocate General "for a new trial or for other relief under Article of War 53." Disposition of the petition is indicated in the "Memorandum Opinion" entered April 14, 1950, reading as follows:

"Memorandum Opinion

"Subject: Application for New Trial or for Other Relief in the case of Private Wallace E. Evans, 38132821 (CM 300287).

"1. Accused was tried by general court-martial at Hurth, Germany, on 21 March 1945 upon charges and specifications alleging two offenses of rape of Mrs. Elizabeth Pugge, in violation of Article of War 92 10 U.S.C.A. § 1564 (Specifications 1 and 2, Charge I); assault with intent to do bodily harm upon Mrs. Elizabeth Pugge (Specification 1), housebreaking (Specification 2), and two further offenses of assault with intent to do bodily harm (Specifications 3 and 4), all in violation of Article of War 93 10 U.S.C.A. § 1565 (Charge II). The court found accused not guilty of Specification 3, Charge II, and otherwise guilty as charged, making, however, certain minor exceptions and substitutions in its findings of guilty. Accused was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor for the term of his natural life. The reviewing authority approved the sentence. A board of review in a branch office of The Judge Advocate General with the European Theater of Operations, constituted under Article of War 50½ 10 U.S.C.A. § 1522, held the record of trial legally sufficient to support the findings of guilty and the sentence, which then was ordered executed. Evans' sentence to confinement subsequently has been reduced through clemency action to twelve years. He now presents an application for relief under Article of War 53.

"2. The record of trial shows that on the night of 9-10 March 1945 Mr. and Mrs. Joseph Pugge, aged 61 and 66 respectively, were at home in their apartment in Bickendorf, Germany. Between midnight and 1:00 a. m. they heard a knock on the door and a noise as though the window of the door were being broken. When Mr. Pugge unlocked the door, accused, intoxicated and armed, pushed past him into the apartment (Charge II, Specification 2). Accused then searched the apartment. While in the kitchen he motioned for Mr. Pugge to leave. At his wife's insistance, Pugge went into the hall leading to the door of the apartment. When Pugge heard his wife scream, he left the building to find assistance.

"Meanwhile Mrs. Pugge and accused were alone in the kitchen. She testified that accused threw her on the couch, held his pistol against her chest, hit her across the arm (Charge II, Specification 1), and forcibly had sexual intercourse with her (Charge I, Specification 1). He then departed.

"At about 2:30 a. m. accused returned to the Pugge home, held his pistol against one Anton Putz (Charge II, Specification 4), and motioned for Mr. Putz, Mr. Lohman, and Mr. Pugge, all of whom then were present, to leave the kitchen. They complied with his order and retreated into the hallway leading to the door of the apartment. Mrs. Pugge testified that during this visit accused was more intoxicated than he had been on his previous visit; that accused `wanted' her to engage in an act of sodomy; that upon her refusal, he became brutal and threw her on the couch where he again had sexual intercourse with her against her will (Charge I, Specification 2).

"A defense witness, Private Matthew J. Miska, testified that accused was `on guard' until about 2145 hours on 9 March 1945. Some time after midnight Miska visited the building where the Pugges lived, going both upstairs and downstairs; he did not see the accused there.

"There was evidence that accused had no authority to enter the Pugge home at the time in question.

"Accused elected to remain silent.

"3. Prior to trial the charges against accused were investigated pursuant to Article of War 70 10 U.S.C.A. § 1542 by Captain Thomas E. Cotter, Jr. The report of investigation dated 13 March 1945 contains the following statement: `The substance of the expected testimony of the following named witnesses either in oral or written form was made known to the accused who stated he did not desire to cross-examine such witnesses and therefore the same were not called and examined in the presence of accused * * *'

"The report then lists the names of seven persons, including the principal witnesses who subsequently testified at the trial. Two witnesses not so listed also testified, a Captain Richard S. Walker for the prosecution and a Private Matthew J. Miska for the defense.

"4. The record of trial shows that when the court convened on 21 March 1945 accused was present along with Captain Hubert C. Morgan, special defense counsel, and First Lieutenant David Frank, the regularly appointed assistant defense counsel, First Lieutenant Richard L. Martin and two regularly appointed assistant defense counsel were absent, having been excused by the appointing authority. The accused was asked whom he wished to introduce as counsel and replied that he desired to be defended by Captain Morgan `along with the regularly appointed defense counsel'. No request was made by the accused for the presence or assistance of Lieutenant Martin or the two absent assistants. No request for delay or motion for continuance was made by or on behalf of accused before or during the trial to enable him further to prepare for trial or to secure the assistance of additional counsel.

"5. Accused's petition under Article of War 53 was submitted by his attorneys, Howard F. McCue of McCue and McCue, Topeka, Kansas, and Clyde Vinson of San Angelo, Texas. In the petition it is contended that the court which tried accused was without jurisdiction for the reason that there was `no thorough and impartial investigation of the truth of the charges' against him; that Articles of War 46(b) and 70 as amended effective 1 February 1949 10 U.S.C.A. §§ 1517(b), 1542 now are applicable to his case, and that under said Articles as amended accused had the right to be confronted by `his accusers prior to trial', which was not permitted him. It also is contended that the conviction of accused is void because accused was denied counsel and denied a fair trial in that his `counsel did not have time and opportunity to consult with him and prepare for his defense'.

"Submitted with the petition is an affidavit of accused executed on 2 December 1949 in which he states that he was not guilty of the charges of rape and assault upon the prosecutrix; that he did not have sexual intercourse with her; that at no time has he made any admission to any person, including defense counsel at the trial, contrary to the statements made in the affidavit; that he did not testify in his own behalf because his defense counsel, Captain Morgan, advised him not to testify, stating to accused that the reason for such advice was that Captain Morgan had not had an opportunity to investigate the charges and did not know any of the alleged facts pertaining thereto.

"6. In January 1949 accused, represented by the same attorneys who now represent him, made application for a writ of habeas corpus to the United States District Court for the District of Kansas. On 8 August 1949 the court ordered discharged the writ previously issued, denied the petition, and remanded accused to custody. In its Findings of Fact and Conclusions of Law the court made the following pertinent rulings of law: the general court-martial which tried accused had jurisdiction over his person and the offenses with which he was charged; he was represented by counsel of his own selection and was not denied the assistance of counsel; he was not denied an opportunity to prepare his defense, if any he had; the alleged inadequacies in the pre-trial investigation did not affect the jurisdiction of the court; and accused was not denied a full and fair trial (Evans v. Hunter, U.S.D.C.Dist.of Kans. (HC 1297)). Upon appeal the Circuit Court of Appeals affirmed the judgment of the District Court on the sole ground that accused had failed to exhaust his remedy under Article of War 53 (Evans v. Hunter, 10 Cir., 1950, 180 F.2d 354).

"In accused's petition under Article of War 53 portions of the testimony adduced in the United States District Court in said habeas corpus proceedings are set out, and it is urged that the testimony supports accused's present contentions.

"I have considered the testimony of the witnesses and the evidence in the District Court and am of the view that the Court in its Findings of Fact accurately summarized all the evidence germane to the issues presented to me upon accused's present application. The summary reads in part as follows: `* * *...