ceived a stolen phonograph from W, was found not guilty as a principal. It was remarked that, if the accused were present at the time the phonograph was stolen and he had the intent to participate in the theft, his acts made him a principal; whereas, if he had no part in the plan to steal the phonograph, but came on the scene after the larceny was complete and received it, knowing another had stolen it, he was not guilty as a principal. Z was, therefore, either an accessory after the fact or susceptible to indictment for receiving stolen goods. In the first case, the accused participated in the carrying away, an essential ingredient of the crime of theft. In the second case, the accused apparently came into the picture after all the elements of larceny had been completed. The evidentiary canon established in C. M. O. 114, 1918, 29, to the effect that no common law rule forbids the conviction of an accused of a crime upon the uncorroborated testimony of accomplice, if such evidence satisfies the court of the guilt of the accused beyond a reasonable doubt, has remained substantially unaltered. The court is, in any event, the sole judge of the credibility to be given to such testimony, and the sufficiency thereof to support conviction. The safeguard furnished an accused with respect to the weight given the testimony of accomplices is well set forth in Richardson v. U. S., 181 Fed. 1, where the court said: "No doubt there is a well-established practice, sanctioned by long practice and judicial approbation, to caution juries about accepting the evidence of an accomplice without material corroboration, coming as it does, from a polluted source." An outstanding example of how overzealous courts martial are in the application of the above rule is found in C. M. O. 1, 1945, 14. In that case, involving violations of Office of Price Administration regulations, it was held that the circumstances surrounding the procurement of the testimony of the two self-confessed accomplices seriously affected their credibility as witnesses. A similar situation arises, as a matter of course, in all instances where self-confessed accomplices agree to turn state's evidence for the purpose of prosecution of other parties involved in the crime. In this connection, it is pointed out that an extrajudicial confession or admission of one accomplice is not admissible in evidence against another accomplice involved in the same offense, unless it was made in the presence of the latter or during the commission of the crime. Such extrajudicial confession or admission would, however, be available to the prosecution to impeach the testimony of the self-confessed accomplice. It is desirable to try accomplices in joinder, or to try the principals first and then the accessories. The reason for this rule is obvious. The acquittal of the principal would deny the existence of any crime, or the certainty of the principal's guilt, upon which decision conviction of accessories would be based. State v. Farne et al., 1 S. E. (2d) 912; Pierce v. State, 168 S. W. 851. If an accessory were tried first and convicted and the principal subsequently was tried and acquitted, the conviction of the former could not stand. 14 Am. Juris. p. 833; 22 C. J. S. p. 163. In C. M. O. 1, 1944, 211, where the evidence indicated that four men were together at the time of the alleged commission of robbery, three already having been tried and acquitted, the conviction of the fourth was not allowed to stand. TRANSFERS Comdr. HAROLD J. HARRIS-from JAG to Family Allowance Section, S&A Field Branch, Cleveland, Ohio. Lt. Comdr. JACK C. DAVIS-from JAG to Op-35. Lt. Comdr. GERALD V. REYNOLDS-from inactive duty to JAG. Lt. THOMAS P. SMITH-from JAG to ComServLant. Comdr. HENRY G. IRION-to JAG for 14 days' annual training duty. Comdr. JOSEPH C. CALDWELL, JR.-to JAG for 14 days' annual training duty. Comdr. FELTHAM WATSON-to JAG for 14 days' annual training duty. Lt. Comdr. FRANKLIN P. GOULD-to JAG for 14 days' annual training duty. Lt. RALPH D. QUINTER, JR.—to JAG for 14 days' annual training duty. CITED Lt. Comdr. Bruce M. Barackman, USN, one of the officers attached to the JAG Office, was awarded Gold Stars in lieu of second and third Distinguished Flying Crosses, and Gold Stars in lieu of third, fourth, and fifth Air Medals in a ceremony held recently. Awards were made and citations read by Rear Adm. O. S. Colclough, USN, Judge Advocate General, in the presence of Chiefs of the Divisions of the JAG Office and officers on duty with Lt. Comdr. Barackman. RESERVE ACTIVITIES A law seminar for officers of the inactive Reserve was held at Headquarters, First Naval District, from 26 January through 14 February 1948. The course, which covered the whole field of military law, from captain's mast through deck, summary, and general courts to the investigative bodies, was offered as a part of the Bureau of Naval Personnel's Reserve Training Program. The District Director of Naval Reserve and the District Legal Officer, Commander Roger E. Perry, collaborated in the preliminary plans and instructors for the various courses were designated by JAG. Lt. Comdr. T. H. Humphreys, Jr., attached to the Office of the JAG; Lt. G. J. Leger, attached to the District Legal Office, First Naval District, and Lt. W. N. Jackson, of the U. S. Naval School, Naval Justice, Port Hueneme, Calif., served as instructors. Also presented were courses in evidence and procedure. One of the highlights of the seminar was a lecture on admiralty law delivered by Commander Perry. The purpose of the seminar was to help officers of the inactive reserve to keep abreast of current trends in naval law by reviewing basic legal principles, and the rules of evidence and procedure as applied to naval subjects. It is a matter of paramount importance to the Navy that all Reserve officers be fully prepared to assume their naval duties immediately, in the event of any future mobilization, without any lag due to the necessity of learning new procedures. Although the seminar was open to all inactive Reserve officers, it was held during the interval between semesters to facilitate the attendance of Reserve officers studying at civilian universities and colleges in the Boston area. Forty-two Reserve officers attending Harvard University, Boston College, Boston University, Suffolk College, and Northeastern University participated in the first 2-weeks' course; 41 attended the second 2-weeks course. The enthusiastic response of the Reserve officers of the Boston area coincides happily with the current ability of the Bureau of Naval Personnel to allot funds for a similar course here in Washington in the period from 7-19 June. A large number of Volunteer Reserve officers can be instructed with the facilities and personnel available in Washington, and applications accordingly are desired from officers presently residing within the First, Third, Fourth, Fifth, Sixth, and Seventh Naval Districts, those portions of the Eighth and Ninth Naval Districts lying east of the Mississippi River, and the Potomac and Severn River Naval Commands. Applicants may be of any Volunteer Reserve classification provided they have or are working toward degrees in law from an accredited law school. Applications should be made in official form and should be forwarded at once to the Chief of Naval Personnel via respective Commandants with a copy to the Judge Advocate General of the Navy. Officers whose applications are approved will receive orders to active training duty with pay and allowances of their present rank, and transportation will be furnished by the Govern ment. Attention is invited to the fact that the U. S. Naval School (Naval Justice) offers a similar 2-weeks course, the year round, to Reserve officers residing west of the Mississippi. Applicants for this course may be of any Reserve classification and need not be lawyers or law students. Requests for enrollment should be forwarded to the Commanding Officer, U. S. Naval School (Naval Justice), Port Hueneme, Calif., via respective commandants, with copy to the Chief of Naval Personnel. READERS' CORNER The list of readers continues to grow-a fact which is reported here as acknowledgment of the many letters of reassurance which have been received. At present we are busy preparing our "Four Hundred List," which will carry the names of contributors of articles for publication. So far, preparation of the list has been a real sinecure, but we have hopes. Reserve officers who write to the JAG JOURNAL to request inclusion in the distribution list should indicate rank, jacket number, and classification as well as name and address. Any who have noted peculiar spellings of their names or addresses on JOURNAL envelopes, or who have been thereby publicly demoted or promoted, are requested to mail us a correction card. FORTHCOMING CMO'S (Digests of Court Martial Orders which appear in the JAG JOURNAL may not be cited as authorities in judicial proceedings in advance of their publication in official form. It should be remembered that digests of Court Martial Orders which appear here are incomplete and are published solely for the information of the service in order that it may be aware of current trends.) An administrative opinion to be published concerned the legality of a city police department bulletin to the effect that any naval personnel receiving a traffic citation would be required to post bail or appear in court, even though the offender might be driving a Government vehicle. The Judge Advocate General held that compliance with the above bulletin did not amount to local interference with a Federal function unless the driver is not permitted to proceed after being given the citation. The arrest and detention of a driver, however, who is acting without reasonable regard to the public safety, is legally justifiable interference. It was also held that drivers found guilty of traffic violations are subject to the sentences imposed in all cases except those involving military necessity, in which event the commanding officer should advise the local civilian authorities of the circumstances. In arriving at these conclusions, the Supreme Court decisions in the cases of McCulloch v. Maryland (4 Wheat. 316) and Arizona v. California (283 U. S. 423) were cited in support of the rule that the Federal supremacy clause of the Constitution establishes that the States have no power to retard, impede, burden, or control the operation of the laws enacted by Congress to carry into execution the powers vested in the general government. An enlisted man was granted a decree of divorce by the court of State A. Subsequently, his wife was granted a decree by a court of State B which declared that State A's decree of divorce was null and void and declared further, in effect, that the marriage status of the parties still existed. The Chief of Naval Personnel, by his endorsement on a request for an opinion initiated by the commandant of a Naval District, requested that the Judge Advocate General give an opinion as to which of the two conflicting court decrees should recognized and further requested that the opinion contemplate similar situations which might involve naval personnel. Citing Williams v. North Carolina (325 U. S. 226) the opinion held that the Navy Department has no jurisdiction over a decree which has been granted by any State court. The particular problem which was presented by the facts actually concerns the apparent failure of State B to accord respect, under the "full faith and credit" clause of the Constitution, to the adjudication of State A. The proper arbiter of questions pertaining to full faith and credit of the judicial proceedings of other States is the Supreme Court of the United States. It was held that the question of which decree the Navy should recognize was therefore one properly for the courts and not for determination by the Judge Advocate General. The parties having 'their respective remedies assured them in the courts, it was held that the request for an opinion from the Navy Department or the Judge Advocate General of the Navy was improper. It was determined, therefore, that no action be taken with respect to the instant case, and that the originator of the inquiry, the attorney for the wife of the enlisted man, should be so advised. The opinion recites that this holding may be taken as indicative of the attitude of the Judge Advocate General with reference to similar situations, both as to retired personnel, active and inactive, and Regular Navy personnel on active duty. The Chief of Naval Personnel requested an opinion as to whether a variation from the name shown in the applicant's birth, baptismal, or naturalization certificate may be used in writing appointments to commissioned rank in the Navy and whether such variation must be supported by a court order for change of name. In writing such appointments, the legal name of the applicant should be used. The Judge Advocate General held that such variations constitute the legal name of the applicant and need not be supported by a court order for change of name. It was pointed out that a person's legal name is the one by which he is known and called in the community where he lives and is best known. He may change his name at will and court proceedings merely afford an additional method of effecting such change and provide a record thereof. The primary purpose of requiring submission of a birth, baptismal, or naturalization certificate is to establish the age and citizenship of an applicant. Such a certificate cannot be conclusive evidence of his legal name which may have been changed in the meantime. It was suggested that where the legal name varies from the evidence, the question of identity may be resolved upon such evidence as the Chief of Naval Personnel may deem sufficient. A retired naval officer inquired whether an appeal would lie to the Judge Advocate General from a decision of the Board of Decorations and Medals, as approved by the Secretary of the Navy, which denied an officer's eligibility for advancement to the next higher grade on the retired list; and whether a retired officer was eligible to become a member of the National Guard Reserve, and if so, whether such service would count for longevity. The Judge Advocate General held that final determination of the question of eligibility for such advancement in rank rests with the Board subject only to the action of the Secretary of the Navy and that no appeal lies to the Judge Advocate General. It was pointed out that the act of June 23, 1938, was amended and superseded by section 412A of the Officer Personnel Act of 1947 but that the situation would be the same under either act. As the National Guard Reserve was discontinued by the act of June 15, 1933, the above question was considered as relating to the National Guard. This question was considered by the Judge Advocate General in a prior opinion, dated 20 May 1947, which held that since there were no statutory provisions against retired officers of the Regular Navy joining the National Guard, the question was one of policy for administrative determination. The Military Appropriations Act of 1948 prohibited, among other things, the use of the appropriation for the pay, allowances, or traveling or other expenses of any officer of the National Guard who may be drawing retired pay (due to physical disability or age). Should an officer receiving retired pay, due to physical disability or age, be permitted administratively to join the National Guard, he would be prohibited from receiving pay, allowances, or traveling or other expenses as an officer of the National Guard. If such retired officer is not retired for physical disability or age, he may continue to receive his retired pay except for such periods as he may be employed on active duty in the Federal service under a National Guard Commission and entitled to active duty pay and allowances. If a retired officer, who has not been retired for physical disability or age, is commissioned in the National Guard, and called to active duty in time of war, both as a retired naval officer and an officer of the National Guard, the question as to which set of orders he must obey is one for administrative determination. In answering the question on longevity, it was pointed out that in computing service for all pay purposes, officers shall be credited with service in the National Guard. In computing retired pay, section 15 of the act of June 16, 1942, as amended, provides that on and after 1 June 1942 retired pay for retired officers shall include increases "for all active duty performed since retirement in the computation of their longevity pay and pay periods." * * * An opinion involved the question of whether a death by drowning, which presumably occurred while the decedent was under the influence of alcohol was due to his own misconduct. The facts indicated that the decedent and two companions rented a rowboat and went fishing in a bay where a strong current was running. After they had been out for about 2 hours, the decedent's fishing line broke, and, with the comment that he was a good swimmer, he dove into the water to retrieve the line. The boat drifted away from the decedent, and because of the strong current the rower was unable to get it back to the swimmer, who drowned. When his body was recovered 2 days later, no autopsy was performed. According to one member of the party, the trio had some whisky with them and at the time of the accident one of them was "pretty drunk." The investigating officer held that death was not due to the decedent's misconduct. The Judge Advocate General concurred. It was pointed out that to support a finding of "misconduct" in these circumstances some proof was required that the decedent's intoxication was at least a contributing factor to his death. In this case, the decedent's action in diving for his line was one which a sober person might have done under the circumstances. The decedent presumably was a good swimmer, and his action, consequently, did not imply a wanton or reckless disregard of safety. Since known factors, and possibly some unknown factors, might have caused his death, the question of whether or not his intoxication did so is a matter only for conjecture. SEARCH AND SEIZURE Part II By Maj. Fenton J. Mee, USMC (The following is the second and concluding portion of the author's report to the Navy on search and seizure, which was begun in the March 1948 issue of the JAG JOURNAL. The citations appended to the first installment are reprinted here for convenience. It has been stated that the case of Carroll v. United States is authority for making a distinction between the search of a dwelling house or other structure and the search of vehicles for contraband goods. This distinction was based on the impracticability of securing a warrant because a vehicle may be quickly moved beyond the jurisdiction. Following the precedent laid down in the Carroll case, it has been held that where there is reasonable cause to believe that a person's automobile contained distilled spirits in violation of law, federal authorities had a right to search his automobile and seize whiskey without arresting him prior to the search. However, a decision 19 handed down by the Supreme Court, while not ruling on this question, pointed out that in the Carroll case, the search and seizure of whisky from an automobile was made under the search and seizure provisions of the National Prohibition Act. Transportation of liquor in violation of that act subjected both the liquor and the vehicle in which it was found to seizure and confiscation, and the person in charge thereof to arrest. It was the opinion of the Court, that an automobile is more vulnerable to search without a warrant than other property only in those cases in which it is used as an instrumentality in the violation of a statute similar to the National Prohibition Act, in which Congress has declared its intention as to what constitutes a reasonable search and seizure. The court admitted that the acts of Congress are subject to the Constitution but pointed out that they would be reluctant to declare a statute unconstitutional, which merely declared the intent of Congress as to what is reasonable. In this case, it was decided that the mere fact that law enforcement officers observed contraband goods (counterfeit gasoline coupons) in the personal possession of one passenger in an automobile did not constitute probable cause for the arrest, search, and seizure of property from the person of another passenger, and the subsequent seizure of counterfeit gasoline coupons from such passenger illegally arrested, did not make the arrest lawful or the seizure reasonable. The constitutional guarantee against unreasonable searches and seizures is personal and may be waived. Where the waiver of individual liberties is concerned, constitutional provisions should be construed strongly in favor of the individual.2 The waiver of a constitutional right must be proved and cannot be presumed. Where one in custody of premises peacefully submits to the demands of an officer to unlock the premises such action does not constitute consent.20 It has been held that consent to enter a business office gained through stealth or through social acquaintances, or in the guise of a business call, whether the owner is present or not, is not voluntary." The admission of government agents into a private dwelling without a warrant subsequent to a demand for entry had been held implied coercion, and consent obtained under such circumstances did not constitute a waiver of constitutional privileges. However, in a relatively recent case,23 the Supreme Court ruled that consent, given after government agents had demanded entry into a defendant's private office in a filling station coupled with an apparent attempt to gain entrance through a side window, was voluntary. In that decision, it was pointed out that consent under those circumstances might not have been considered voluntary if entry had been made into a private dwelling, or place of business after working hours. Consent cannot be obtained from a wife in the husband's absence so as to justify search of his property or their common property.22 Nor does admission of Federal agents into a house by the mother-in-law of the accused and peaceful submission to their search of the house constitute consent by the accused.24 22 The protection against unreasonable searches and seizures guaranteed by the fourth amendment may be waived by contract. Thus, a businessman who entered into written contracts with the Navy Department, containing a provision that the records of his business should be open at all times to 9 |