may also be said to be a proper one in testing the credibility of the witness. (Citing U. S. v. Hatchett (No. 1137), 2 USCMA 482, 486, 9 CMR 112.) There was no violation of the accused's right against self-incrimination in the member's questioning him since an accused voluntarily taking the stand automatically waives his privilege in respect to any proper question which may be asked him. In any event, the accused failed to claim the privilege and, of course, as witness, there was no need to warn him under either UCMJ, Art 31(a) or 31(b). (Citing U. S. v. Howard (No. 3990), 5 USCMA 186, 17 CMR 186.) CGCMS 20101, Wynn (1955) 18 CMR 455.

§ 6. Application of Privilege, Generally

§ 6.9. Ordering or compelling specimen of handwriting.

In proving an offense of forgery and uttering a forged instrument the prosecution introduced into evidence exemplars of the accused's handwriting. The agent who obtained these exemplars testified that he told the accused it would be necessary for him to give handwriting samples and he told the accused what he wanted him to write. On cross-examination the agent testified that he thought the accused could be forced to give handwriting samples. He also stated he thought the accused was aware of his rights. Held: To compel an accused to produce handwriting exemplars violates UCMJ, Art 31, and exemplars so acquired are not admissible in evidence. (Citing U. S. v. Morris (No. 3834), 4 USCMA 209, 15 CMR 209; U. S. v. Eggers (No. 1990), 3 USCMA 191, 11 CMR 191; U. S. v. Rosato (No. 1335), 3 USCMA 143, 11 CMR 143.) Under the circumstances the accused's actions in giving the handwriting exemplars were not voluntary. The samples were produced at the direction of a law enforcement agent and it is probable the accused complied under the impression that he had to do so, for the language of the Manual states that an accused may be required to make a sample of his handwriting. It may reasonably be inferred the accused was aware of this provision from the fact that all officers in the Army are required to acquaint themselves with the Manual but on the other hand there is little reason to believe that he was aware of Court of Military Appeals decisions overruling this provision of the Manual. Accordingly, the exemplars and the testimony of a handwriting expert based thereon were improperly admitted in evidence. (Citing U. S. v. Eggers (No. 1990), 3 USCMA 191, 11 CMR 191; U. S. v. Rosato (No. 1375), 3 USCMA 143, 11 CMR 143; cf. U. S. v. Morris (No. 3834), 4 USCMA 209, 15 CMR 209.) CM 376162, Reid (1954) 18 CMR 341.

§ 6.31. Liability to civil proceedings.

The accused was convicted of adultery. The proof of intercourse consisted solely of the testimony of the woman allegedly involved. This woman, a German national, originally refused to testify on the ground that she would be subject to a civil suit in the German courts by the accused's wife. After being ordered by the law officer to testify, she persisted in her refusal. Thereupon the law officer recessed the court and directed that she be taken under guard and

turned over to the Chief Prosecutor, Allied High Commission Court, for his disposition. The court reconvened the following morning and she testified as to having had intercourse with the accused. Upon cross-examination, she testified that she had spent the previous night in jail and testified against the accused only because the trial counsel had talked to her and threatened her with return to jail and prosecution in the United States Court of the Allied High Commission for Germany for refusal to testify. She stated she had been told she might receive a penalty of ten days or five years. Held: In view of the witness' statement that she was refusing to testify because of a fear of a civil suit in a German court, it is clear that she was not asserting any right granted her by UCMJ, Art 31, since the guarantee against compulsory self-incrimination applies only to possible criminal prosecution and in no way guarantees any freedom from being made a party litigant to a civil proceeding as a result of answers given under compulsion. (Citing UCMJ, Art 31; Black's Law Dictionary, 4th ed, p 908; VIII Wigmore, Evidence, 3rd Ed, sec 2254, p 327.) Accordingly, the action of the law officer in taking the affirmative action which he did was entirely consistent with the proper performance of his duty, and the testimony of the witness was not open to attack by reason of her claim of compulsion. Although the provisions of UCMJ, Art 47, for punishment of persons not subject to the Code who refuse to testify were inapplicable because of the location of the trial, it is apparent that the framers of the Code imposed upon those responsible for conducting courtsmartial the duty of taking whatever punitive action was legally available to be taken against any person who improperly refuses to testify before their tribunal. Thus, the law officer took the only course consistent with the situation when he ordered that the witness be turned over to the official of the United States Court of the Allied High Command for Germany. Neither is it of any concern that the witness was incarcerated overnight, for that incarceration was the result of her own willful refusal to testify and of necessary administrative action of the High Commission officials. CM 365144, Lane (1953) 12 CMR 347.

[See 58 Am Jur, Witnesses §§ 34, 51.]

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

§ 7.1. Generally.

The accused was called to the OSI office, and after being advised pursuant to Art 31, was shown a writing whereby the base commander had granted authority to an OSI agent to conduct a search of the accused's quarters "for the purpose of obtaining specimens of the handwriting of" the accused for "appropriate comparison by competent authority with the handwriting appearing" on certain worthless checks. The accused stated that he did not wish to have his quarters searched at that particular time and after a discussion as to an agreeable time for the search, the accused stated spontaneously that he had in his automobile some canceled checks which he could release to the agent. The accused then walked out to his

automobile, removed some checks and gave them to the agent. Held: While, under particular circumstances, the threat of illegal search might be held to constitute sufficient unlawful inducement for a person's producing evidence which might be used against him in a criminal proceeding, the facts in this case fail to disclose any inducement which would have rendered involuntary the accused's relinquishing possession of the checks in question. While the accused's decision to produce the checks was probably influenced by his desire to avoid the inconvenience which might have been occasioned by the search of his quarters, such desires are not deemed to be an inducement "of such a serious or substantial nature that it could possibly have operated to impair his freedom of will" (U. S. v. Colbert (No. 401), 2 USCMA 3, 6 CMR 3). Accordingly, since the checks were given voluntarily by the accused, they were not procured in violation of UCMJ, Art 31. The privilege against compulsory self-incrimination guaranteed by the Fifth Amendment protects one from the involuntary production of his personal papers, books, documents, and chattels for use in evidence against him. (Citing Wigmore, Evidence, 2d ed, secs 2263, 2264; Boyd v. U. S., 116 US 616, 29 L ed 746, 6 S Ct 524; Gouled v. U. S., 255 US 298, 65 L ed 647, 41 S Ct 261; U. S. v. Rosato (No. 1375), 3 USCMA 143, 11 CMR 143.)

Held also: The search of the accused's quarters for the purposes stated in the written authorization for such search, if it had been made, would have been illegal, and any private property of the accused seized incident thereto for such purposes would not have been admissible as evidence. ACM 9010, Elliott (1954) 16 CMR 882.

§ 9. Matters of Identification, Generally

§ 9.27. Police lineup; voice identification.

The accused was arrested by an OSI agent the same night as the alleged offense. At this time, the agent informed the accused of the nature of the offense of which he was suspected and read him his rights under UCMJ, Art 31. The following day there was an identification lineup at which the accused and several other airmen were asked to say certain things for the purpose of possibly establishing identity through the voice.

Held that:

-the warning of rights given in this case sufficiently complied with the mandate of UCMJ, Art 31. The identification lineup was manifestly but a continuance of the investigation and it was being conducted by the same official who had made the original arrest and who gave the original warning of rights. It cannot be said that the period of some twenty-eight hours involved was so far removed in point of time to the original warning as to indicate the accused did not have the warning in mind when he was asked to speak. Also the warning was sufficient in substance since the agent testified that he gave the warning in the words of Art 31 itself. (See ACM 6341, Biagini, 10 CMR 682; ACM 6252, Otero, 8 CMR 795.)

the general rule in civilian jurisdictions which have a statutory provision requiring a warning of rights that if the caution or warning is given in literal or substantial compliance with the code or statutory provision requiring it, it is sufficient, is applicable to the military. (Citing Phillips v. State, 277 SW 679, 102 Tex Crim 195; Moore v. State, 258 SW 476, 96 Tex Crim 493; State v. Thompson, 32 SE2d 24, 224 NC 661; 22 CJS, Criminal Law, par 823 and cases cited therein.)

the words spoken by the accused in this case were voluntary in fact and hence, voluntary in law since the accused was warned of his rights, there was no indication that he did not understand his rights, he was not instructed to make a statement for the purpose of voice identification, but was "asked" to speak, the words spoken had no connection with the offense for which the accused was being investigated and there was no objection on behalf of the accused, any protest, or even hesistancy in speaking as requested. ACM 8318, Rivard (1954) 16 CMR 615.

[See 16 ALR2d 1322.]

Improperly ordering accused to speak over telephone for voice identification as not rendering inadmissible a subsequent statement signed by him and a recording of his interrogation where they were not parts of one continuous process, see United States v. Noce, EVID § 69.5.

§ 11. Physical Examination, Blood and Other Scientific Tests § 11.23. Urine tests.

[See 14 Am Jur, Criminal Law § 160; 58 Am Jur, Witnesses § 67; 25 ALR2d 1407.]

The accused, who were suspected of using morphine, were requested to give urine specimens. At the time they were in the dispensary, and prior to the giving of such specimens, another airman who was present was informed that he would be catheterized if a urine specimen was not voluntarily given. Held: Assuming that the accused acted under the fear and compulsion of the threat of catheterization made to the other airman in their presence (see 16 CJ, Criminal Law, sec 1495; 22 CJS, Criminal Law, sec 826; 18 LRA NS 836), and even though it is legally objectionable to subject an accused to catheterization to obtain a specimen of urine (U. S. v. Williamson (No. 3898), 4 USCMA 320, 15 CMR 320; U. S. v. Booker (No. 3836), 4 USCMA 335, 15 CMR 335), the mere threat of catheterization, although operating as a form of compulsion on the minds of the accused, was not such an invasion of the sanctity of their persons as to constitute a denial of due process, nor was the obtaining of the urine specimens under threat of catheterization a violation of the accused's rights against self-incrimination (U. S. v. Williamson, supra; U. S. v. Booker, supra; cf. Rochin v. California, 342 US 165, 72 S Ct 205, 96 L ed 183). ACM 8806, Dillon, et al (1954) 16 CMR 835.

It is not error to obtain a urine specimen without warning the person from whom it is obtained of his rights under UCMJ, Art 31, since Art 31 is not applicable in the matter of obtaining a urine specimen and no warning of rights is either necessary or required. (Citing U. S. v. Booker (No. 3836), 4 USCMA 335, 15 CMR 335; U. S. v. Williamson (No. 3898), 4 USCMA 320, 15 CMR 320; ACM S-7345, Milton, 13 CMR 747; ACM 8386, Brints, 15 CMR 818.) ACM 8695, Yates (1954) 16 CMR 629.

The accused, who was tried for wrongful use of a narcotic drug, was arrested by a CID agent and taken to an Army hospital for an examination. He was ordered by a noncommissioned officer to give a urine specimen, which the accused did without objection. Color reaction tests revealed the presence of morphine in the urine sample. Held: The obtaining of the urine specimen did not violate the accused's privilege against self-incrimination, even though the specimen was obtained as a result of a verbal order. (Citing U. S. v. Williamson (No. 3898), 4 USCMA 320, 15 CMR 320.) [Quinn, C.J., dissented on the ground that the order compelled the accused to furnish evidence against himself in violation of the Fifth Amendment and UCMJ, Art 31.]

Held also: The evidence as to the results of the tests was properly received in evidence. (Citing U. S. v. Ford (No. 4192), 4 USCMA 611, 16 CMR 185.) United States v. Barnaby (No. 4752) 5 USCMA 63, 17 CMR 63.

The accused, who had been acting in a suspicious manner, was taken to a dispensary and was requested by a medical officer to furnish a urine sample, which he did. A deposition of an expert toxicologist disclosed that analysis of the urine specimen revealed the presence of morphine. Held: The taking of the urine specimen was not in violation of the accused's privilege against self-incrimination. (Citing U. S. v. Williamson (No. 3898), 4 USCMA 320, 15 CMR 320; U. S. v. Barnaby (No. 4752), 5 USCMA 63, 17 CMR 63.) [Quinn, C.J., dissented.]

Held also: The scientific analysis of the urine specimen was sufficiently reliable to support a finding that morphine was present in the urine, notwithstanding the fact that the expert witness was not called upon to identify the particular type of tests which were employed by him, particularly in view of the fact that counsel for the accused stipulated to the qualifications of the expert and offered no objection to his conclusions. (Citing U. S. v. Ford (No. 4192), 4 USCMA 611, 16 CMR 185; U. S. v. Barnaby, 5 USCMA 63, 17 CMR 63.) United States v. Andrews (No. 4658) 5 UCMA 66, 17 CMR 66.

The accused was convicted of wrongful use of morphine. The evidence showed that the accused was suspected of using narcotics and was taken to a dispensary where he was asked to provide a sample of his urine. He attempted to do so but his efforts were unsuccessful. Later catheterization was resorted to for the purpose of obtaining the required sample. The doctor who took the sample said that he did not hear the accused state any objection. How