Ex parte Steele, No. 210.

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
• Writing for the Court: FOLLMER
• Citation: 79 F. Supp. 428
• Parties: Ex parte STEELE.
• Docket Number: No. 210.
• Decision Date: 27 July 1948

79 F. Supp. 428

Ex parte STEELE.

No. 210.

District Court, M. D. Pennsylvania.

July 27, 1948.

79 F. Supp. 429

William L. Showers, of Lewisburg, Pa., for petitioner.

Arthur A. Maguire, U. S. Atty., of Scranton, Pa., Charles W. Kalp, Jr., Asst. U. S. Atty., of Lewisburg, Pa., and Major Thayer Chapman, Office of the Judge Advocate General of Washington, D. C., for respondent.

FOLLMER, District Judge.

A petition for writ of habeas corpus was filed by Leonard F. Steele, a military prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, who had been convicted in a court-martial proceeding on a charge of violation of the 92nd Article of War, 10 U.S.C.A. § 1564; the specification being in substance that he did, while in England, on or about April 3, 1944, forcibly and feloniously, against her will, have carnal knowledge of a member of the Women's Land Army.

The petitioner alleges denial of due process and for that purpose sets forth double jeopardy, that he was inadequately

79 F. Supp. 430

represented by counsel, that he was not advised of his right by one Captain Winfield at the time of the preliminary investigation, and that an identification parade was improperly conducted, that the investigation under Article of War 70, 10 U.S.C.A. § 1542, was neither thorough or impartial and not competently made, and that in the trial of the cause improper and incompetent evidence was introduced and that moreover the evidence was insufficient so that the crime was not proven beyond a reasonable doubt

The petitioner was originally convicted at a trial commenced on June 2, 1944, but the Staff Judge Advocate, Headquarters, European Theater of Operations, being of the opinion that the record of trial contained errors injuriously affecting the substantial rights of the accused, and that the record was not free from doubt that the legal rights of the accused had been protected, recommended a rehearing,¹ and on July 17, 1944, General Eisenhower ordered such rehearing to be held.²

An entirely new court having been appointed, and new counsel designated, a second trial commenced on August 8, 1944, and the accused was again convicted. It is this second trial which is the subject of attack here.

As to the allegation of double jeopardy, such a plea of double jeopardy must be raised at the trial itself as a plea in bar, and is not properly raised in habeas corpus,³ however, there was actually no double jeopardy present in the instant case.

The Articles of War provide "No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specifications shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case."⁴ In the instant case a death sentence having been imposed at the first trial, there was both a reviewing and confirming authority. The authority to review or confirm includes the right and power to remand a case for rehearing.⁵ General Eisenhower, as the Commanding General of the Army in the field, had ordered such rehearing and the subsequent trial was held in pursuance thereof and also in accordance with the requirements

79 F. Supp. 431

of military law, and there is therefore no basis for any contention of double jeopardy

Petitioner has alleged inadequacy of defense counsel. The burden of proving such allegation is upon him. The mere fact that his present counsel, upon an analysis in retrospect of the cold record, believes he would either have asked or refrained from asking some question, or would have made some objection differently, does not sustain such burden of proof.⁶ Under Military Law a commissioned officer appointed as counsel is considered competent counsel,⁷ however, in the instant case, the evidence shows that certainly the assistant defense counsel was an attorney with the experience of twenty-two years practice,⁸ and an examination of the trial record shows that the accused was ably and vigorously defended.

The allegation "That the petitioner was not advised of his rights pursuant to the provisions of the 24th Article of War 10 U.S.C.A. § 1495 at the time he was first questioned by Captain Winfield," needs little comment. The question of the admissibility in evidence of any statements made by accused at that time would not be a proper subject of habeas corpus.⁹ The record however, shows that in the interview by Captain Winfield accused denied having been out, but on the contrary stated "* * * that he had been playing poker in the tent, * * *."¹⁰ He admits that he made no admission of guilt to Captain Winfield.¹¹ At the trial no statement or confession of any kind by the accused was introduced into evidence, and Captain Winfield testified only to the fact that accused was in his command.¹² Captain Winfield was not the impartial investigator under Article of War 70.

Complaint is made that an identification line-up, wherein petitioner was identified, was not conducted fairly. In view of the fact that this was not a part of the investigation under Article of War 70, nor involved in the trial, and accused having been identified, not only by the victim, but by another witness, and having himself admitted at the trial that he was the person with the victim,¹³ there would be no merit in the contention even were it a proper subject of habeas corpus.¹⁴

Petitioner alleges "That the investigation under the 70th Article of War was neither thorough nor impartial and further said investigation was not competently made." Petitioner claims that Captain Wilkins, the investigating officer, never interviewed him.¹⁵ Aside from the question of the extent to which inquiry in habeas corpus may be had concerning the...