215; District of Columbia v. Little, 178 F2d 13 (CA DC Cir 1949), affd on other grounds, 339 US 1, 94 L ed 599, 70 S Ct 468). Likewise, a search by one having direct disciplinary power over the accused is one under the authority of the United States. (Citing ACM 3558, Moorleghem, 4 CMR(AF) 549; U. S. v. Doyle (No. 265), 1 USCMA 545, 4 CMR 137.)

- in the instant case, there is a conflict in the evidence as to whether Sergeant H. was acting in an official capacity as exchange steward at the time of the search or acted as a private individual. The statement of the chief steward that Sergeat H. had better "do something" or it would be "his neck" could be interpreted as a reminder that official responsibility for operation of an exchange rested upon Sergeant H., or it might be regarded as a disclaimer by a superior of all official interest in the matter, the inference being that whatever steps were necessary to correct the situation were to be taken by the subordinate, as an individual. Furthermore, the statement by one of the noncommissioned officers that "we didn't want to be stuck with the shortage and have our pay checked" indicates action in a private capacity. The conflict in evidence was determined by the law officer in his ruling on the admissibility of the evidence and finding that Sergeant H. acted as a private individual and not in an official capacity. As a matter of law, it cannot be said that the finding is not supported by substantial evidence. United States v. Volante (No. 4382), 4 USCMA 689, 16 CMR 263, affirming NCM 195, 9 CMR 562, 2 Dig Ops, SEARCH & S § 11.3.

[See 20 Am Jur Evidence § 397; 150 ALR 566.]

The accused was found guilty of larceny. Both he and the victim were attached to the Third Recruit Training Battalion, Marine Corps Recruit Depot, San Diego, California. However, on the date of the alleged offense they were undergoing training at another camp some distance from San Diego operated and maintained by the Weapons Training Battalion. When the victim discovered some money missing he reported to his drill instructor and told him he had the serial numbers of the missing bills. The drill instructor attempted to contact the officer of the day of the Weapons Training Battalion but could not locate him. He then called the officer of the day of the Third Recruit Training Battalion at San Diego and received authority from that officer to conduct the search. The search revealed the money in the billfold belonging to the accused. The evidence of record failed to disclose whether or not the officer of the day was specifically delegated the authority to order searches. Held: Since a commanding officer may delegate his general authority to order searches of personnel under his control the burden of showing a lack of delegation or lack of authority to order searches falls upon the accused. In the instant case it cannot be determined what the authority of the officer of the day was since there was no evidence on the question. Accordingly it cannot be said he abused his authority in ordering the search. (Citing MCM, 1951, pars 67e and 152; U. S. v. Doyle (No. 265), 1 USCMA 545, 4 CMR

137; U. S. v. Landry, 2-54-G-1097, 30 Nov 1954.) A commanding officer has authority to make or order an inspection or search of the personnel and property under his control. (Citing U. S. v. Florence (No. 207), 1 USCMA 620, 5 CMR 48, 50.) Although the accused was performing duty at a location other than the location of his parent battalion, the commanding officer of his battalion still retained the duty to maintain good order and discipline among the members of his command and he continued to have the responsibility of a commanding officer toward the accused. Consequently, there is no reason why the commanding officer should lose his authority and responsibility over the personnel of his command by the mere fact that some were performing duties outside of the battalion area. Therefore, the commanding officer did not lose his authority to order searches over the personnel of his command performing duties at another area under military control and the search in this instance was lawful. (Citing ACM 6172, Turks, 9 CMR 641.) NCM 380, Triplett (1954) 18 CMR 421.

The accused was convicted of stealing a sum of money. When the victim became suspicious that his money was in the accused's locker he reported to the executive officer who referred him to a Coast Guard intelligence investigator. The investigator interviewed the accused and at the conclusion of the interview told him he had talked with the executive officer and if necessary they were going to search lockers. He asked the accused if he would volunteer to have his locker searched first and the accused himself testified that he had assented. They passed through the executive officer's office and the investigator told the executive officer they were going to search the accused's locker and the officer said all right. The search disclosed a sum of money in the number and denomination of bills which the victim had stated he lost. The accused later admitted the larceny. The executive officer testified he was also personnel officer and that in his capacity as personnel officer he had authority to authorize searches within the confines of the base and that he gave permission for the search in the instant case. The accused testified that he had been drinking the preceding night and that he remembered nothing until he was sent for by the investigator. He recalled giving the investigator permission to search his locker and that he himself had opened the locker but he asserted he did not realize why it was being searched, nor remember making any admissions to the investigator nor remember the investigator finding money. Held: The search was not unreasonable and not in violation of the accused's constitutional rights. The testimony of the executive officer that he had authority in his capacity as personnel officer to authorize searches is of little weight since it states a legal conclusion rather than the facts upon which such conclusion must be based. Also, a personnel officer has neither the same authority as the commanding officer nor any greater authority than the executive officer to direct searches. However, the executive officer certainly has the power, without delegation, to order a search of a particular man's locker when reason

able and probable cause exists to believe that the man has placed stolen property therein. He has power to search military property limited by a requirement that reasonable cause therefor exists. Reasonable and probable cause was shown herein by the victim's report. On the strength of this report, the executive officer therefore had the right and duty to direct a search of the accused's locker. (Citing U. S. v. Doyle (No. 265), 1 USCMA 545, 4 CMR 137; cf. Rule 41(b) (1), Federal Rules of Criminal Procedure.) Furthermore, the legality of the search can be upheld on the ground that the accused consented to it. If there is true consent, no more is necessary to make a search legal. If there is mere acquiescence, i.e., if the accused has only submitted to the demands of a person having the color of authority there is no consent to the search. However, assuming that the accused herein would not have assented to the search except for a belief that official permission to search his locker would have been granted if he refused to consent, that circumstance alone would not vitiate his consent. Also, the defense in the case was based on the position that the accused was too intoxicated to form a larcenous intent. That theory was presented to the court on appropriate instructions and the court having found no such intoxication as would relieve the accused of guilt of larceny, must logically have found also that he was not so intoxicated as not to have known why a search of his locker was requested. In such circumstances it cannot be said that the consent was illegally induced. (Citing U. S. v. Wilcher (No. 3900), 4 USCMA 215, 15 CMR 215; U. S. v. Marelli (No. 3332), 4 USCMA 276, 15 CMR 276; cf. U. S. v. Higgins (No. 3145), 4 USCMA 143, 15 CMR 143; CGCM 9814, Martin, 16 CMR 446, 450.) CGCMS 20062, Friend (1954) 17 CMR 550.

Legality of search of accused's private quarters in foreign country and seizure of evidentiary articles therein, where CID agent who seized such articles had accompanied a French inspector acting under letters rogatory issued by a French magistrate, see United States v. De Leo, supra § 1.5.

Failure of accused's commanding officer to expressly object to proposed search of accused's quarters as authorization, see United States v. De Leo, supra § 1.5.

SELF-INCRIMINATION

1. In General.

3. Privilege of Accused, Generally.

§ 6. Application of Privilege, Generally.

§ 7. As to Books, Documents, and Other Articles.

§ 9. Matters of Identification, Generally.

§ 11. Physical Examination, Blood and Other Scientific Tests.

§ 1. In General

Necessity of warning a witness at a trial of his privilege against self-incrimination, see United States v. Howard, EVID § 133.11.

§3.1. Generally.

§ 3. Privilege of Accused, Generally

In support of objections to the admission of pretrial statements of two of the three accused, the two accused concerned took the stand for the limited purpose of testifying as to the voluntariness of their statements. Each testified in substance that after his statement had been prepared an OSI agent had him make certain changes. The agent testified that the changes were made only for reasons of clarity. On cross-examination each accused was asked if anyone had made him say anything which was untrue and each replied in the negative. Each of the pretrial statements of the accused mentioned above not only incriminated its maker but also his co-accused. The third accused also made a statement which incriminated his coaccused but was largely self-exculpatory. The law officer instructed that each statement could be used only against the accused who made it. However, at the close of all the evidence the defense made a motion for a finding of not guilty as to the accused whose statement was largely exculpatory. In the course of the arguments on this motion the question arose as to whether the pretrial statements of the other two accused could be considered in determining the motion and the law officer ruled that if the defense counsel was accorded the right to utilize the statements of the other co-conspirators in attempting to show the insufficiency of evidence as to one of the co-accused then the trial counsel had the right to refer to the statement of the other co-accused. Held: An accused has a right to testify only for the limited purpose of establishing the involuntary nature of a confession. When he does so he may not be crossexamined on the issue of his guilt or innocence and, therefore, may not be asked to state whether his confession was true or false. (Citing MCM, 1951, pars 140a and 149b (1); CM 348401, Bellucci, et al, 2 CMR 379; ACM S-1753, Hickman, 2 CMR 648; ACM 6743, Roberts, et al, 11 CMR 803.) The inference from the defense testimony that the accused's statements were not their own voluntary statements because someone else had put words into their mouths causes a certain amount of blending of the issue of voluntariness with the

issue of the truth of the statements. However, the accused's testimony did not reach the point of putting the truth or falsity of their statements in issue and accordingly the cross-examination which in effect asked them if their statements were true was improper. (Citing CM 347050, Kaulay, 2 CMR 296; ACM 7732, Hawley, 14 CMR 927; ACM S-1753, Hickman, 2 CMR 648; ACM 4096, Webb, 1 CMR 754; U. S. v. Hatchett (No. 1137), 2 USCMA 482, 9 CMR 112; MCM, 1951, par 140a.) Furthermore, the trial counsel made the truth or falsity of the statements the main theme of his closing argument by repeated references to the credibility of such statements. Under such circumstances there was not only a violation of the fundamental right against compulsory self-incrimination, but specific prejudice as well.

Held also: The conviction of the third accused was tainted with prejudice flowing from the error against his co-accused for the following reasons. In his closing argument the trial counsel played the credibility of the two statements against the third statement with the first two fortified by the illegally secured admissions as to their truth. The original error in receiving the illegal information was compounded by the law officer permitting this line of argument to stand uncontested without corrective action. Furthermore, the third accused had elected to stand on his exculpatory statement. The effect of the admissions of the other accused was to reaffirm the truthfulness of their statements which were incriminatory not only of themselves but of the third accused. Thus they were in effect testifying against him. This placed the defense counsel in the position of attempting to defend one client against illegally secured evidence presented by his other clients. In the ordinary case instructions limiting the effect of a statement to its maker are sufficient to protect a co-accused. However, in the instant case the specific admonition as to the use of the pretrial statement of each accused being limited to the maker thereof was strongly undermined and its effect greatly diminished by the law officer's ruling on the motion for a finding of not guilty and by his other instructions which were in many respects vague, misleading and irrelevant to the issues in the case. ACM 9092, Fetch, Moler & Holt (1954) 17 CMR 836.

The accused took the stand for the limited purpose of attacking the voluntariness of a confession. In the confession he had admitted taking a sum of money which was not the subject of any charge and a court member asked him what led him to make this admission. The accused replied that he had been using a certain man's locker and had taken a sum of money from it and had admitted this theft when his interrogator asked him to tell about anything he had ever taken. Held: The court member's question was proper notwithstanding the answer given by the accused was relevant on the issue of guilt. The question bore upon and was directed to the issue of voluntariness of the confession. The accused was asked only what led to his making one particular statement in the confession. The fact that his answer went beyond the scope of the question did not make the question bad. (Citing MCM, 1951, par 149b; Smith v. U. S., 348 US 147, 99 L ed 192, 75 S Ct 194, US Sup Ct No 52, 6 Dec 1954.) The question asked by the court member