(The conclusions reached herein are not necessarily the views of the JAG, who continues to express official views in CMO's and OPJAG's. The article is submitted only to stimulate legal thought on a controversial subject.)

In reviewing the decisions on this, subject, it has seemed appropriate to distinguish between the cases in which a confession is involved and those in which there is no confession, or admissions amounting to a confession. It has been noted, in general, that cases involving a confession present the real problem in the matter.

Where there has been no confession, nor admissions amounting to a confession, the holdings of the JAG are uniform on the major premise "The corpus delicti in theft is constituted by two elements, namely, that the property was lost by the owner, and that it was lost by a felonious taking." CMO 10, 1930, 15.

Pertinent portions of Court Martial Orders pertaining to cases under the charges of "stealing property of the United States intended for the Naval Service thereof" and theft", where no confessions are involved

been taken by the accused with a felonious intent, or that it had been recently stolen from the owner, should have been adduced by the prosecution in order to establish the corpus delicti of theft.

(d) CMO 2, 1937, 2, 3. Charge: THEFT. Evidence: 1. Accused was discovered leaving the New York Navy Yard with certain items alleged to have been stolen from the captain's mess. 2. Accused was cook of the mess. 3. He had not been authorized to take any items from the mess for his own use. 4. Accused was one of those who drew stores from the issuing room for use in the mess. 5. One of the items found in the accused's possession was identical with the kind carried in the issuing room. Held: insufficient to establish the corpus delicti. (e) CMO 8, 1937, 8. Evidence: A certain accused was apprehended in act of attempting to sell certain articles. 2. Articles were similar in every way to those on board his ship. 3. Articles were marked with "USN and anchor." 4. There was no evidence of a shortage, loss or theft. Remarked, "that to justify a conviction...it was incumbent upon the prosecution to establish beyond a reasonable doubt that the property belonged to the United States. This was not proved; nor was it shown that the United States lost the property which the accused was charged with stealing or any property similar thereto." These excerpts have been selected as representative and it is believed that they stand for the current JAG position on the question. The real problem is presented when a confession or admission of accused is admitted. It is uncontradicted in Naval Courts and Boards and many JAG opinions that "An accused may not be convicted on his extrajudicial confession alone." (NC&B #176.) The remainder of the paragraph in Naval Courts and Boards, of which the above quotation is the first sentence, is the crux of the matter: "It must be corroborated by independent evidence. This evidence, however, need not be such as alone to establish the corpus delicti beyond a reasonable doubt; it is sufficient if, when considered in connection with the confession, it satisfies the court

beyond a reasonable doubt that the offense was committed and that the accused committed it." The measurement of this quantum of evidence which is sufficient is the problem.

The latest published opinion on this subject is CMO 11, 1946, 356. The prosecution evidence, in addition to the confession and admissions; amounted only to production of the items allegedly stolen, unidentified except for the description in the admissions and confession of the accused. In setting aside the conviction under the charge, the JAG held "In the instant case, where the evidence independent of the extrajudicial admissions and confession is insufficient to permit an inference that the articles were stolen from the mail, it cannot be said that the independent evidence is sufficient to corroborate the confession."

Earlier in 1946, in the case of two men who were tried in joinder, the record, in addition to complete confessions, contained circumstantial evidence which was held "tended strongly to corroborate the confession..." as to one of the specifications. There was, however, no direct evidence adduced that the property allegedly stolen by the accused, was property of the United States.

The foregoing case seems unique in that no similar case appears to have been reported in CMO's. It is significant that the CMO's cited in the JAG opinion go only to substantiate the general proposition that: independent evidence is required to corroborate the confession." Both opinions rely heavily on certain federal cases which will be reviewed briefly.

In Daeche v U.S. (250 Fed. 566), de fendants were found guilty of conspiracy and appealed, charging among other things in their writ of error that there was not sufficient corroboration of the defendant's confession to justify a case to the jury. The Circuit Court of Appeals for the Second Circuit, Learned Hand, J., said, "But such is not the more general rule, which we are free to follow and under which any corroborating circumstances will serve which in the judge's opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof." To the same effect are Jordan v U.S. (60 Fed. 2d, 4) and

Flower v U.S. (110 Fed. 241).

In Forte v U.S. (94 Fed. 2d, 236), the United States Court of Appeals for the District of Columbia reviewed the authorities on the point exhaustively and held that on a charge of transporting a motor vehicle in interstate commerce knowing it to have been stolen, corroboration of a confession in a criminal case is not sufficient if it tends merely to support the confession without also embracing substantial evidence of the corpus delicti and the whole thereof. The court pointed out that the excerpt quoted above from Daeche v U.S. is the most frequently quoted, and often misquoted on the subject, in that such a quotation "might well seem to indicate that the corroborating evidence need not touch the corpus delicti," while the context of the whole opinion seems to indicate the opposite was intended. Forte v U.S., it was held that there must be corroborating evidence touching not only the corpus delicti, but every element thereof, and the conviction was reversed on lack of corroborating evidence as to scienter. This case has been quoted in the JAG opinion in CMO 11, 1946, 356, supra.

In

Manual for Courts-Martial, (U.S. Army), contains the following at page 115: "A court may not consider the confession of an accused as evidence against him unless there be in the record other evidence, either direct or circumstantial, that the offense charged has probably been committed; in other words, there must be evidence of the corpus delicti other than the confession itsel f... This evidence of the corpus delicti need not be sufficient of itself to convince beyond reasonable doubt that the offense charged has been committed, or to cover every element of the charge, or to connect the accused with the offense." In applying this rule, the Board of Review of the Army JAG held in the case of an officer (CM 239085) that "Nevertheless some evidence must be produced to corroborate the confession and such evidence must touch the corpus delicti.

In another Army case, the following is quoted from the Digest of Opinions of the Judge Advocate General of the Army, 19121940, para 395(11): "Accused was charged with and confessed to the larceny of oats from the government in violation of A. W. 94. There was no testimony as to a shortage of

oats from any government stock, nor were the oats identified. It was established that two sacks of oats were found concealed near the stable where accused was on duty; that accused had access to government oats; and that a civilian, in whose house personal effects of accused, and also oats, were found, was seen to enter the reservation riding one horse and leading another; and that he turned and started to leave when approached. Held, that the corpus delicti was sufficiently proved to justify admission of the confession, CM 202928 (1935). "

Of all the reference and text books referred to in this connection, the following excerpt from 20 American Jurisprudence 1086 seems to sum up the problem best: "Independent proof of the corpus delicti to corroborate a confession need not be clear, positive, and direct; circumstantial proof being all that is required... The weight of authority is that the corpus delicti need not be established beyond a reasonable doubt by evidence other than an extra-judicial confession. Such evidence, however, must be material and substantial... The true rule has been stated that when the prosecution has given sufficient evidence of the corpus delicti to entitle the case to go to the jury, it is competent to show a confession made by the prisoner connecting him with the crime."

Mr. Wigmore in Para 2071 covers the matter exhaustively. He reports that in 34 jurisdictions the stricter form of the rule is applied: The corroborating evidence must concern the corpus delicti. However, he says, "In a few jurisdictions the rule is properly not limited to evidence concerning the corpus delicti; i.e., the corroborating facts may be of any sort whatever (his underscoring), provided only that they tend to produce a confidence in the truth of the confession," and he quotes from 14 jurisdictions which apparently adhere to this more liberal rule.

From research it appears this exact point has not been passed upon in JAG opinions. The Wigmore viewpoint seems convincing when he explains (referring to the stricter rule that the corroborating proof must concern the corpus delicti): "The policy of any rule of the sort is questionable. No one doubts that the warning which it conveys is

a proper one; but it is a warning which can be given with equal efficacy by counsel or.. ..by the judge in his charge on the facts. Common intelligence and caution, in the jurors' minds, will sufficiently appreciate it, without a laying on of the road (sic) in the shape of a rule of law. Moreover the danger which it is supposed to guard against is grossly exaggerated in common thought. That danger lies wholly in a false confession of guilt. Such confessions, however, so far as handed down to us in the annals of the courts, have been exceedingly rare. Such a rule might ordinarily, if not really needed, at least be merely superfluous. But this rule, and all such rules, are today constantly resorted to by unscrupulous counsel as mere verbal formulas with which to entrap the trial judge into an error of words in his charge to the jury. These capabilities of abuse make it often a positive obstruction to the course of justice." Para. 2070.

Seemingly, then, when a confession is involved, we have a choice of three courses: First, the most strict rule, as laid down in Forte v U.S., requiring independent proof of the corpus delicti and every element thereof; second, the liberal view of Wigmore quoted above where the corroborating facts may be of any sort whatever; and third, a middle ground which seems to have the weight of authority among both the courts and the writers, that there must be independent evidence touching the corpus delicti, but that it need not go to every element thereof.

It is submitted that this latter rule represents a workable and common-sense compromise of two extreme views. Under the strict rule, the burden of proof on the prosecution is too heavy; under the Wigmore view, the rule that "an accused may not be convicted on his extra-judicial confession alone" is given lip service but the rule loses its practical effect. The writer feels that the interests of society and the rights of the accused will equally be protected in requiring, in cases of this sort in which an extra- judicial confession is involved: (1) Proof of every element of the corpus delicti by some evidence, which may include an extraJudicial confession; (2) Corroborating evidence going to one or more of the elements of the corpus delicti, but not necessarily to all of the elements.

DEPARTMENT
BOARDS

As of 1 October 1947, there were in several boards and committes operating in the Navy Department, and on which the Navy Department had representation, in addition to those omitted from unclassified publication for reasons of security. Some of these obviously are highly specialized or otherwise of limited interest. Boards relating to retirement and review of discipline are of frequent interest, however, and it is felt that it is worthwhile to focus attention upon boards currently exercising jurisdiction in those fields.

Naval Retiring Board. Organized pursuant to the Act of August 3, 1861 (34 Ú. S. C. 411), this Board conducts examinations of such officers of the line and staff corps of the Navy, Naval Reserve, Marine Corps, and Marine Corps Reserve as may be ordered to appear before it, or whose case may be referred to it by the Secretary of the Navy, to determine their physical fitness to perform all of the duties appropriate to their respective ranks or grades (commonly referred to as examinations for physical incapacity retirements).

Naval Retiring Review Board. Organized pursuant to Section 302 (a) of the Servicemen's Readjustment Act of 1944 (38 U.S.C. Sup. 963 i), this board reviews and reports on findings and decisions of Naval Retiring Boards by reason of which any Naval officer is retired or released to inactive service without pay for physical disability. Jurisdiction is limited to those individuals who request review within time limits specified in the Act (15 years after date of retirement for disability, or after the effective date of the Act, 22 June 1944, whichever is later).

Navy Medical Survey Review Board. Established in compliance with section 302 (a) of the Servicemen's Readjustment Act of 1944 (38 U. S.C. Sup. 693 i), this Board reviews and reports upon the findings and recommendations of Boards of Medical Survey by reason of which any officer of the Navy or Marine Corps, or of the reserve components thereof, is retired or released from active

service without pay for physical disability. Requests for review must be made within 15 years from termination of active service or from the effective date of the Act, 22 June 1944, whichever is later.

This is

Naval Retirement Advisory Board. a non-statutory board established 16 January 1947 to advise the Secretary of the Navy on appropriate action concerning:

(a) The findings and recommendations of any Medical Survey Review Board or Naval Retiring Review Board upon which final action has not been taken by the President, at the request of any Reserve of the Naval Service whose case has been considered by any such Board, or on its own motion;

(b) The claim of any Retired or Reserve officer that he has been returned to inactive duty without adequate opportunity to be considered for physical disability retirement, except in a case involving a Reserve officer who is eligible to have his case considered by a Medical Survey Review Board; and

(c) Other matters concerning medical surveys, disability retirement, and related subjects as may be referred to the Board by the Secretary of the Navy.

Board of Review, Discharges and Di smi ssals. Created pursuant to Section 301 of the Servicemen's Readjustment Act of 1944, Public Law 346, 78 th Congress, this Board is authorized to review the type and nature of any separation from the naval service, irrespective of the manner evidenced or brought about, except separations by reason of the sentence of a general court-martial. The scope of the review is to determine whether, under reasonable standards of naval law and discipline, the type and nature of the discharge or dismissal should be changed, and, if so, to decide what change should be made.

Board for the Correction of Naval Records. Created pursuant to Section 207 of the Legislative Reorganization Act of 1946, Public Law 601, 79th Congress, 2d. session, this Board, composed entirely of civilians, is authorized to review petitions for correction of naval records of naval personnel or former naval personnel where an error exists or an injustice is claimed, and where the correction of such error or injustice is not within the jurisdiction of a statutory

board or other board empowered to take final action. The scope of the review is to determine whether an error has been made in a naval record, or whether, under normal standards of naval law, administration and practice, the petitioner has suffered a wrong as the result of an error of omission or commission in his record, or through some manifest injustice in the treatment accorded. him; and if so to correct the record and remove the injustice, subject to the approval of the Secretary of the Navy. The jurisdic

tion of this Board does not extend to the review of reports or decisions of Selection Boards, Board of Review of Discharges and Dismissals (except for discharges or dismissals by reason of sentence of a general court-martial), Retiring Boards, Medical

Survey Boards, or Boards of Decorations and Medals.

Naval Sentence Review and Clemency Board. This Board is non-statutory and was convened by precept of the Acting Secretary of the Navy dated 17 April 1947, and on that date assumed the functions of the Naval Clemency and Prison Inspection Board. It reviews general courts-martial sentences and other disciplinary matters requiring action of the Secretary of the Navy and referred by him to the Board for findings. It considers applications of Naval prisoners for clemency and for restoration to duty. The Board makes recommendations to the Secretary who takes final action in all matters coming under the cognizance of the Board.

During the war numerous acts were passed by the Congress for the purpose of giving to members of the Armed Forces certain privileges as to income tax, free importation and free entry of gifts. The expiration dates. of these various acts were provided in numerous ways, such as: six months after the termination of hostilities; six months after the termination of the unlimited national emergency; and a few specific dates. In order to set a definite termination date for some of these acts, and in some cases to prolong the benefits accruing to members of the Armed Forces, the 80 th Congress passed the bill which is now known as the Act of August 8, 1947, Public Law 384 (80th Congress).

The purpose of this bill is to provide for the termination of a number of war and emergency statutory provisions related to intemal revenue and customs. The bill al so makes amendments to the Internal Revenue Code necessitated by the temination of certain of the statutes. The following discussion is limited to the portions of the bill as originally passed, which apply to the indi vi dual members of the Armed Forces. Certain definite regulations have been promulgated by the agencies concerned in furtherance of this bill, one of which regula

tions is discussed in this issue, on page under the title "Income Tax Legislation."

In 1942 Congress provided that any gift from a member of the armed forces which does not exceed fifty dollars in value shall be admitted into the United States or its Territories or possessions free of all customs duties, charges or exactions, or internal revenue taxes imposed upon or by reason of importation. This act was to be effective until six months after the termination of hostilities, as proclaimed by the President or by concurrent resolution of the Congress. Public Law 384 makes the temination date of this provision 1 July 1949 and also states that such articles must be purchased in or through authorized agencies of the armed forces of the United States or in accordance with regulations prescribed by the major geographical commands of the United States armed forces.

During the war members of the armed forces were allowed certain exclusions from gross income, while enlisted men were allowed to exclude completely all compensation received for military service during the taxable year. These exclusions were to expire at the termination of the war as proclaimed by the President. Public Law 384 extends these provisions to all compensation