For general information and for such assistance as may be provided in planning programs the following excerpts from various reports of activities of units are quoted:

From Quarterly Report and Summary of LT Hugh H. Howell, Jr., USNR, Commanding Officer, VLU 6-6, Atlanta, Ga.

"The above Unit was formed in November 1948, with very little material with which to work. Subsequent to that date, the unit has prospered and now boasts in having some 17 active members. Two-hour training meetings are had twice a month and our program consists mainly of either educational topics or topics of interest to naval personnel.

"As training objectives, we call upon members of our unit to present a topic of interest to naval legal officers. Sometimes this topic is taken from the JAG JOURNAL. At other times we call upon members of our unit to present topics connected with their work. An example of this latter type training meeting is where one of our members who works for the Veterans'. Administration gave a talk on Public Law 810. We have enjoyed having one of our associates give a talk on officer selection in the Navy. CAPT Jesse Draper, USNR, gave a most interesting talk on legal problems connected with South America, Captain Draper having been captain of one of the major ports in South America. We have had one training motion picture show and on two occasions have had the wire records as distributed by JAG. On another occasion, an attorney in this city, having worked with and on the Nuremburg trials, gave a very interesting explanation of the legal basis for war trials.

"The interest in our unit is spreading and we are called upon by the training officer of the Reserve activities at the Naval Air Station, Atlanta, Ga., from time to time to help some service or reserve personnel by advising them. The Atlanta legal aid society which is sponsored by the Community Chest has called upon us to advise sailors no longer connected with the Navy."

From "Memorandum to Naval Reserve OfficerLawyers of the Eleventh Naval District."

Volunteer Law Unit 11-1 (San Diego).-A meeting of the unit took place on 21 March 1949 at the U. S. Naval Station Commissioned Officers' Mess. CDR Fred Kunzel, Commanding Officer of the unit, presided. Seventeen officers were present at the meeting. Also present were several officers from the District legal office.

On 18 April 1949, the unit held a meeting at the Commissioned Officers' Mess. CDR Fred Kunzel presided and LCDR Ashley Johnson presented an excellent discussion of "Practical Problems on Courts Martial."

Volunteer Law Unit 11-2 (Los Angeles).-On 21 March 1949, CDR Henry A. Dietz, Commanding Officer of the unit presided over a meeting held at the U. S. Naval and Marine Corps Reserve Training Center, Los Angeles. Justice Marshall F. McComb of District Court of Appeal of the State of California delivered a very interesting and beneficial lecture on "The Writing of Criminal Briefs and Oral Argument before the Appellate Courts." The second half of the meeting was conducted by a panel under the chairmanship of LCDR Peyton Moore, Jr. The subject for the panel was "The Federal Tort Claims Act." There were 41 members present at the meeting.

A meeting was held on 4 April 1949. The meeting consisted of audition and discussion of JAG disk recordings, "International Law Branch" and "Pay and Allowances Branch." Thirty members were present.

On 18 April 1949, a meeting of the unit was held at the U. S. Naval and Marine Corps Training Center, Los Angeles. CAPT L. E. Gehres, U. S. Navy, director of the Los Angeles Office of Naval Officer Procurement, gave a very interesting and well received talk on "The Saga of the U. S. S. Franklin" accompanied by a motion picture of the Franklin. The second half of the meeting consisted of a panel under the chairmanship of LCDR Reginald Pegram. The subject of the panel discussion was "Eminent Domain." There were 37 present and their guests. Also present was LT Dana P. French, U. S. Navy, Assistant District Legal Officer.

U S. GOVERNMENT PRINTING OFFICE: 1949

Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court Martial Orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948.

RADM. G. L. RUSSELL, USN Judge Advocate General of the Navy

CAPT. E. E. WOODS, USN

Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR Editor

LCDR. G. H. ROOD, USN Associate Editor

FORTHCOMING

CMO's

N ENLISTED man was convicted by a general

AN

court of theft, among other charges. The only evidence offered by the prosecution, tending to implicate the accused, was the testimony of a government investigator. His testimony related the accused's statement that the stolen property came into his possession through purchase from one X. and (without objection by the accused) he testified that his interview with X "satisfied [him] that X was not involved in the theft . . .".

The Judge Advocate General held, in the opinion to be published, that the investigator's testimony was hearsay evidence because it related a conversation with X outside the presence of the accused. It was held, further, that such testimony. even though given without objection by the accused, is insufficient to support a conviction when it is the only evidence from which guilt can be inferred.

The same opinion notes that the investigator's testimony that his interview "satisfied [him] that X was not involved in the theft . . .", even if it had not been the only evidence from which guilt could be inferred, did not directly refute the accused's explanation that he had purchased the property from X. Mere possession of stolen property raises the inference that the possessor is guilty of theft only when possession is recent, exclusive and unexplained. Because the accused in this case had explained his possession by claiming purchase from X, the prosecution's failure to produce X as a witness left the accused's explanation unrefuted. The finding of guilt, therefore, did not accord with the evidence.

A third holding in this case concerns the necessity of proving publication of local orders as one of the elements essential to proper convictions for violation of local orders.

For sale by the Superintendent of Documents,

U. S. Government Printing Office, Washington 25, D. C. Price 10 cents, $1.00 per year, $1.35 Foreign

WITHOUT deciding, officially, that two ac

cused in a general court martial tried in joinder at a foreign station had been subjected to "entrapment," the Judge Advocate General's

opinion in the case strongly condemns the action of naval officers in this case who actively assisted the accused men to commit a crime, for the sole purpose of apprehending them and bringing them to trial.

The facts of the case recite that these officers, having been advised that two enlisted men had offered a third a bribe to secure possession of a large quantity of narcotic drugs, instructed the third man to cooperate in the plan and assisted in making arrangements for the time and place of the "theft" of the narcotics. The cooperation extended even to the point at which the third enlisted man, the informer, opened the drug locker himself, took out certain dummy packages that had been prepared in advance, and put them into the possession of the two accused.

There was nothing in the record which showed that any effort was made to dissuade the two men from their proposed crime. On the contrary it was clear that those whose duty it was to enforce the law and to prevent and suppress crime had actually encouraged its commission in order to get evidence. This conduct, decried in the opinion as "not to be tolerated in a military service," made it necessary to set aside the findings under the charge relating to the theft, and one specification of the bribery charge. The conviction of conspiracy and one specification of bribery were held to be legal.

ITED AS an aid to those who prepare plead

ings (charges and specifications) is a recent court martial order in which an accused was tried and convicted of striking a civilian, under a C to P charge, and of robbery under the appropriate robbery charge.

The specification under the later charge alleged the use of force and violence in the commission of the robbery, and it was apparent that the striking alleged under C to P was the same force and violence alleged under robbery. It was necessary to set aside the conviction of the lesser, included offense of striking.

NECESSITY for closer scrutiny of the facts

before preparation of charges and specifications is indicated by another opinion written in a general court martial case.

An enlisted man who was placed under arrest

by the shore patrol was ordered to enter the private automobile of one of the shore patrol members, used in the performance of duty. The accused refused, saying "That's not a Navy car; I want a shore patrol wagon." Although a member of the patrol replied, 'We'll get a shore patrol wagon," and immediate steps were taken to procure one, the pleader failed to recognize this as a revocation of the first order, and the accused was tried and convicted of Disobeying the Lawful Order of a Superior Officer. Accordingly, since no order was left standing which might be disobeyed by the accused, it was necessary to set aside the findings on this charge and its specification.

DEVELOPMENT

OF NAVAL LAW

By CDR P. V. Dabbieri, USN

DURING the past century and a half, the Naval

Establishment has experienced many changes in order to reflect the impact of changing world conditions. This period of progress was marked by a continuing increase in the complexities of administration. Such progress was accompanied by expanding legal needs.

Development of Substantive Law

In the fall of 1775, when the Continental Congress began to pay serious attention to naval affairs it decided that a successful war against Great Britain made an armed force afloat a prerequisite. A fleet was then established and in order to regulate and conduct its affairs and administration, a naval committee in November 1775 presented to the Continental Congress rules for the regulation of the Navy of the United Colonies of North America which were enacted into law on 28 November 1775. It was by these rules that the Continental Navy was governed and they remained effective until the adoption of the Constitution.

Upon the adoption of the Constitution, the source and authority for the Navy as well as naval law stemmed from the following provisions of the Constitution:

Article I

SECTION 8. The Congress shall have power

* *

(13) To provide and maintain a navy;

(14) To make rules for the Government and regulation of the land and naval forces;

(18) To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

After the adoption of the Constitution, the new Congress on 7 August 1789 passed an act to establish an executive department denominated the Department of War. Section 1 of this act provided that

"there shall be an executive department to be denominated the Department of War, and that there shall be a principal officer therein, to be called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined on, or entrusted to him by the President of the United States, agreeably to the Constitution, relative to military commissions, or to the land or naval forces, ships, or warlike stores of the United States, or to such other matters respecting military or naval affairs, as the President of the United States shall assign to the said department, or relative to the granting of lands to persons entitled thereto, for military services rendered to the United States, or relative to Indian affairs; and furthermore, that the said principal officer shall conduct the business of the said department in such manner, as the President of the United States shall from time to time order or instruct." So much of this act that related to the Navy was enacted in accordance with the provision of the Constitution vesting in Congress the power "to provide and maintain a Navy."

No laws were enacted for the regulation of the Navy upon the adoption of the Constitution. This was probably due to the inactivity of the Navy at this time making it unnecessary for any legislative enactments. In 1794 depredations committed by the Algerian Corsairs prompted the Congress to pass an act authorizing the President to purchase or otherwise equip and employ six ships. This authorization, however, was contingent upon a failure to effect a peace treaty with the Regency of Algiers. Since a peace treaty was concluded with Algiers in 1795, the act automatically became imperative.

The shipbuilding program was revived when the Congress in 1796 authorized the President to continue construction and equipment of three of

the six frigates authorized initially. The revival of this program was caused by an active external commerce, the protection of which was indispensable, coupled with the strained relations with France when it seemed that war with her was imminent.

It was not until 1797, when Congress authorized the President to cause the frigates United States, Constitution, and Constellation to be manned and employed that any real need existed for rules and regulations for the U. S. Naval Service. Congress at the time of this authorization and by the same legislative enactment adopted as the first set of rules, the rules of the Continental Congress established by its resolution of 28 November 1775. These rules were adopted by reference when Congress in Section 8 of the Act, provided that"the officers, noncommissioned officers, seamen, and marines, belonging to the navy of the United States, shall be governed by the rules for the regulations of the navy heretofore established by the resolution of Congress of the twenty-eighth of November, one thousand seven hundred and seventy-five, as far as the same may be applicable to the Constitution and laws of the United States, or by such rules and articles as may hereafter be established."

The frigate United States was launched at Philadelphia on 10 July 1797. A few months later, on 7 September 1797, the Constellation was launched in Baltimore and in the following month, 21 October 1797, the Constitution was launched at Boston. The increased work in administration caused by these launchings, as well as the supervision of the shipbuilding program, caused Secretary of War McHenry to recommend that his department be relieved of the responsibility of the Naval Establishment. This recommendation was indorsed by President Adams, and shortly thereafter a bill was drafted and enacted into law on 30 April 1798 creating a separate executive department called the Department of the Navy. This law provided "there shall be an executive department under the denomination of the Department of the Navy, the chief officer of which shall be called the Secretary of the Navy, whose duty it shall be to execute such orders as he shall receive from the President of the United States, relative to the procurement of naval stores and materials and the construction, armament, equipment and employment of vessels of war, as well as all other matters connected with the naval establishment of the United States."