BIGGS, Circuit Judge.
The petitioner, Donald Hicks, formerly a private in the United States Army presently confined in the United States Penitentiary at Lewisburg, Pa., was convicted of rape by a court-martial at Corby,
England, and was sentenced to a term of twenty-five years. He asserts that he was denied due process of law by the military authorities before and during the course
of his trial and seeks release by writ of habeas corpus.
From the evidence given at the court-martial it appears that Hicks met the complaining witness in the court-martial proceedings, Mrs. Murray, and her husband at the White Horse Public House at Cor-by, England, on Christmas night, 1943. Mrs. Murray testified that this was- her first meeting with the petitioner though she stated that she had seen him in the public house nine days earlier. Hicks testified that the meeting on Christmas night was not his first with Mrs. Murray and that he had sexual intercourse with her with her consent twice previously. On December 26 at 10:20 p.m., Mr. Murray being absent at work, Hicks came to the Murray home in Sarringfon Close in Cor-by, knocked at the back door and was admitted. He testified that he came to the Murray home at that hour because he had made an assignation with Mrs. Murray the preceding evening. He brought with him a piece of cake and some tea in a paper bag. Shortly thereafter, according to Mrs. Murray’s testimony, Hicks raped her.
Mrs. Murray’s testimony as to how the rape was committed is set out in the record and need not be repeated here. She testified in effect that Hicks consummated his purpose in such a fashion that she was unable to defend herself or effectually to call for help.
Hicks for his part admitted that he had had sexual intercourse with Mrs. Mtirray but insisted that it was with her consent and conditioned on an agreement that he would give her a specified sum of money, that upon his refusal to complete his bargain she became “quite perturbed” and, running to a neighbor’s residence in Sarringion Close, alleged that he had committed the crime with which he was charged.
No exact description of this Close is available from the record but it is clear that the house occupied by the Murrays was a “row” dwelling, partitioned from two adjacent homes by common walls. The home immediately to the south of the Murray’s dwelling was occupied by Mr. and Mrs. Smedley. The home to the north was occupied by Mr. and Mrs. Smith. These neighbors testified that frequently through the walls of their dwellings they had heard Mrs. Murray talking to or yelling at her children and the sound of her radio. They testified also that they had heard no unusual sounds or any outcry from Mrs. Murray at the time when she testified she was being ravished.
Jones, a police constable, testified at the court-martial over objections of Hicks’ counsel, that the wall between the Murray and the Smith homes consisted of 4% inches of brick with % inches of plaster on each side, a total of 6 inches and that the partition between the Smedley and Murray homes consisted of 9 inches of brick with % inches of plaster on each side, a total of 10% inches.
Across the Close at a distance of about 45 feet was a dwelling occupied by the Green family. When the events complained of had been consummated Mrs. Murray locked the kitchen door on the outside, taking the key with her, crossed the Close to the Green’s home and informed Mr. and Mrs. Green that she had been raped by Hicks. Both Mr. and Mrs. Green then accompanied Mrs. Murray to her home and found Hicks standing between the dining room and scullery. Both Mr. and Mrs. Green testified at the trial as to what Mrs. Murray and Hicks said or did when they met on this occasion and as to Mrs. Murray’s appearance and state of mind. This evidence was damaging to Hicks.
Errors in Procedure Before Trial.
(1) Hicks was arrested on December 27 and interrogated at the Corby Police Sta
tion by Corporal John P. Strayel
of the military police in the presence of certain persons who need not be named herein. Strayel failed to inform Hicks of “his right to make or submit a statement in any form subject tó the risk of having such statement used against him”. See Instructions, Paragraph 35.a. of the Manual for Courts-Martial, United States Army. Strayel did more than this, however. He induced Hicks to make a statement by informing him that such information as Hicks would give him would be utilized on his, Hicks’, behalf.
Strayel asked Hicks where he had spent the balance of the night of December 26-27. Hicks replied that he had spent it at the Deenthorpe Airfield where he was stationed, at a barracks other than his own. This statement was false and was employed by the prosecution at Hicks’ trial with serious consequences for the petitioner as will be pointed out hereinafter.
(2) Article 70 of the Articles of War, 10 U.S.C.A. § 1542, and Paragraph 35.a. of the Manual for Courts-Martial both provide that the investigating officer shall examine available witnesses requested by the accused.
The major issue presented at the trial was whether or not Mrs. Murray had consented to intercourse with Hicks.
Hicks’ offense was being investigated by Captain Davison. Hicks informed Davison that three other enlisted men, Manas, Calderone and Driscoll, had seen him with Mrs. Murray on occasions previous to the night of December 26 “under questionable circumstances” and requested Davison to examine them. Davison interviewed these three men; All stated they had seen Hicks with a woman of Mrs. Murray’s general description at about the times Hicks indicated. The “Summary
of Report of the Investigating Officer’s Findings” states in part that meetings were arranged at Mrs. Murray’s home “where unknown to her” Manas and Calderone were enabled to see her and that both stated that Mrs. Murray was not the woman whom they had described as being with Hicks. The summary goes on to state, howev.er, “In the light of these developments, and due to the fact that Mrs. Murray had been repeatedly subjected to these meetings, this Officer believed it impractical to have witness Driscoll see her also.” The meaning of the sentence quoted from the report is not clear to the present writer but it is apparent that the investigating officer in failing to let Driscoll view Mrs. Murray, did not examine him in any respect which might have aided Hicks’ defense. The provisions of Article 70 and of Paragraph 35.a. of the Courts-Martial Manual required him to do so. For the purposes of the instant case it must be assumed that Driscoll’s testimony would have tended to corroborate Hicks’ statements as to his prior carnal knowledge of Mrs. Murray and therefore would have affected her credibility. See note 9, infra.
(3) Article 70 and Paragraph 35.a. of the Manual for Courts-Martial provide that during the investigation of a charge “ * * * full opportunity shall be given to the accused to cross-examine vfitnesses against him if they are .available * * These provisions are mandatory. Hicks was not given the opportunity to cross-examine certain witnesses who appeared and testified against him at his trial. Such witnesses whose testimony was damaging to Hicks included Mr. and Mrs. Green, Dr. John Irving, Bernard Murray,
the
husband of the complaining witness, and Police Constable Jones.
(4) Article 70 provides “No charge will be referred for trial until after a thorough and impartial investigation thereof shall
have been made.” Paragraph 35.a. of the Courts-Martial Manual has a substantially similar provision. The investigating officer’s [Captain Davison’s] summary states under the heading “(5)” that “Complainant’s [Mrs. Murray’s] reputation for morality is not good in her community.” I conclude from this statement that the investigating officer had determined, from statements which had been made to him by persons living in Corby, that Mrs. Murray’s reputation in her community was that of an unchaste woman. This view is confirmed by further language of the summary which asserts that there were “mitigating circumstances” to Hicks’ misconduct. The summary goes on to say, “This statement [as to existing mitigating circumstances] is based solely upon the purely hearsay statements of Mrs. Murray’s neighbors and other residents of Corby who, although they will not or cannot bring forward specific evidence to substantiate their beliefs, insist that from her past conduct, Mrs. Murray is not a good and virtuous woman.” The summary states also that Thomas Murray,
the manager at the Raven Dance Hall stated to the investigating officer, “I know she [Mrs. Murray] has a reputation for being a ‘hot number’. She’s a ‘tough number’.”
The investigating officer was apparently unaware that the character, i.e., the reputation, of a rape-complainant as to chastity in the community in which she lives is of substantial probative value in judging the likelihood of her consent and that proof of specific instances of misconduct with any other person than the accused might be inadmissible.
Despite the fact that evidence as to Mrs. Murray’s reputation was at hand the investigating officer paid but little attention to it in his summary. Moreover, he stated, “* * * the charge of rape is correct in the instant case” but went on to say that although Hicks “* * * may have resorted to force * * * was there in fact want of consent? This Officer, is of the opinion that the answer should be in the negative.”
I am forced to the conclusion that the investigation of the charge was not “thorough” in that it was not made competently.
Errors in the Court-Martial Proceedings.
(1) Under “Errors in Procedure before Trial (1)” reference was made in this opinion to Hicks’ false statement that he had spent the balance of the night of December 26-27 at the airfield at a barracks other than his own and it was said that he was induced to make this statement by Corporal Stravcl’s suggestion that such information as Hicks gave would be utilized in Hicks’ favor. At the' court-martial Hicks took the witness-stand in his own defense. Upon cross-examination he was compelled to admit that he had lied to Strayel and had in fact spent the balance of the night at the home of another married woman. These admissions tended to incriminate and degrade the petitioner in violation of Article 21 of the Articles of War, 10 U.S.C.A. § 1495, and of Paragraph 122.a. of the Courts-Martial Manual. On cross-examination and over the objections of Hides’ counsel the trial judge advocate repeatedly interrogated the petitioner on the irrelevant question as to where he had spent the balance of the night of December 26-27. There was no assertion that the petitioner had been a fugitive from justice. The inquiry was unrelated to the issue of the petitioner’s guilt or innocence of the crime with which he was charged and was contrary also to the provisions of Paragraph 121.b".
of the Courts-Martial
'Manual. Strayel, the first witness called by the trial judge advocate in rebuttal, testified further as to Hicks’ lie and the falsity of his statement apparently was urged
upon the court-martial by'the trial judge advocate in summing up. This was prejudicial to the petitioner and constituted reversible error.
(2) Corporal Emanuel Miller also testified in rebuttal. He had been employed as a clerk in the office of Captain Davison and had been present at certain of the pre-trial examinations of Hicks by Captain Davison and others. Miller’s testimony was pure hearsay and completely inadmissible. What he testified to was largely irrelevant but he made it clear that Hicks was an evasive and reluctant witness at the pre-trial investigations.
But Hicks, as has been stated, was not compelled to incriminate himself or to respond to any question the answer to which would have tended to incriminate him. See Article 24 of the Articles of War which provides in substance that no person shall be compelled to be a witness against himself. Here again was prejudicial error which should have compelled the rerviewing authorities to have granted the petitioner a new trial.
(-3) No evidence was adduced at the court-martial to show the reputation of Mrs. Murray for chastity in the community in which she lived. Indeed the trial judge advocate set his face against the admission of such evidence, a course in which the petitioner’s counsel at the trial acquiesced.
The court itself under the circumstances of the case at bar should have inquired into the question of Mrs. Murray’s reputation for chastity in the community in order that her credibility might be tested. That evidence was available which would have tended to prove her reputation for lack of chastity is indisputable.
Such evidence
should have been received by the court-martial.
(4) The argument of the trial judge advocate in summing-up was not taken down and therefore does not appear in the transcript of the proceedings at the trial. None the less in the “Record of Trial by General Court-Martial”
there is a letter from Major Albert E. Barrs, the petitioner’s chief counsel. In this letter, addressed to the Commanding General of the Eighth Air Force, Barrs asks clemency for Ilicks. In paragraph l.f., Barrs states, as a reason for clemency, “The prosecution, in its closing argument, particularly stressed the fact that the accused made no sworn statement before trial, which if not a violation of the rights of accused, was at least prejudicial to him. This fact is not believed to be proper subject matter for comment by the Trial Judge Advocate.” The
“Review of Staff Judge Advocate”
states: “In their letter requesting clemency, defense counsel allege that the prosecution, in its closing argument, commented upon accused’s failure to make a sworn statement before trial. Argument of counsel was not recorded. Upon inquiry, the Trial Judge Advocate states that his comment related to the variance between accused’s testimony as a witness that he spent the remainder of the night after the alleged act at the home of another woman, and his unsworn statement before trial that he had returned to his station but had slept in a barracks otli-' er than that assigned to him. Major Barrs, defense counsel, has advised the writer that it was this comment to which he referred in his letter. Such reference to conflicting statements of accused was not improper.”
The statement by Major Barrs as to what was argued to the court-martial by the trial judge advocate is plain and unequivocal. Barrs was present at the trial and the reviewing officer was not.
I accept the statements of fact contained in Barr’s letter as correct. As has been stated Hicks was not required to or under obligation to make any statement under oath or otherwise to the interrogating officers. The provisions of the Fifth Amendment and Article 24 of the Articles of War guaranteed him protection from self-incrimination. The comment of the trial judge advocate as to Hicks’ failure to make a sworn statement before trial was highly prejudicial to the petitioner and constituted reversible error.
(5) The petitioner has testified that he requested his counsel at the court-martial to summon as witnesses three persons who, he insists, would have testified as to Mrs. Murray’s reputation for lack of chastity. These persons were Ford D. Ful-cher, William McNaboe and Mary Can-field, inhabitants of Corby. The respondent has produced no evidence to controvert Hicks’ statement that he made this request and I accept it as correct. Hicks’ counsel should have called the persons named as witnesses. The respondent insists, however, that errors, whether of commission or omission, committed by the petitioner’s counsel must be attributed to the petitioner, i. e., that he must bear the burden of them. The applicability of this principle under the circumstances of the case at bar is discussed at a later point in this opinion. It is sufficient to state here that even if the error of Hicks’ counsel in not calling the persons named as witnesses, may be attributed properly to him this did not relieve the court itself from making inquiry into Mrs. Murray’s reputation for chastity in Corby and seeing to it that evidence was offered on this issue.
Moreover, it must be assumed that the report of the pretrial investigation was in the hands of the trial judge advocate. I do not imply that that officer was
guilty
of
conscious suppression of evidence favorable to the accused for I do not believe that to have been the case. The trial judge advocate had the duty, as does any prosecutor, to see that Hicks was dealt with fairly. That duty is recognized by the Manual for Courts-Martial. See Paragraph 41.d.
Under the circumstances of the case at bar the conclusion is unavoidable that the trial judge advocate negligently failed to reveal the whole truth to the court-martial. As has been pointed out the trial judge advocate resolutely set his face against and objected to any questions which might have elicited answers pertinent to Mrs. Murray’s reputation. This did not result from a desire to pervert the truth. It came about, I believe, because of an imperfect knowledge of the applicable principles of law but the effect on Plicks’ defense was as. substantial as if the withholding of evidence of the complaining witness’s reputation had been conscious.
(6) As has been stated, Police Constable Jones testified as to the width of the partitions between the Murray apartment and'the apartments of the Smedleys and the Sm’ths. It must be borne in mind that the question of whether or not Mrs. Murray offered resistance to Hicks’ intercourse was the substantial question in the case and that both the Smedleys and the Smiths testified that ordinarily they could hear noises emanating from the Murray apartment. Jones’ testimony was offered by the prosecution at the beginning of the court-martial evidently in anticipation of Hicks’ probable defense. He testified for example that the partition between the Smedley and the Murray homes consisted of nine inches of brick and an inch and a half of plaster. It would indeed have been difficult to hear through such a wall.
As has been stated, an objection was offered by the defense to the admission of Jones’ testimony on this point. The law member rules, “If the witness was asked whether this [thickness of the walls] follows the usual customary construction, I think his evidence would be admissible on that.” The trial judge advocate then asked the witness, “The construction of this four-family brick apartment. Does that follow the usual custom and have the customary thickness of the walls?” The witness answered, “Yes, sir. It is the same as all the houses in Corby.” Jones had not measured the parti
tions and his statement that all the houses in Corby had the same thickness and construction of wall, is incredible. Corby is a village of over 2,000 inhabitants and the court-martial could have taken judicial notice that the walls of all the houses in Cor-by could not be the same. It appears that the partitions between the Murray home and the homes of the Smedleys and the Smiths differed in thicknesses. It is almost unbelievable that a court trying a man for his life should have received Jones’ testimony as to the thickness of walls based as it was on pure supposition. The receipt of this evidence was highly prejudicial and constituted reversible error.
(7) In a court-martial, as in a criminal proceeding before a civil court, the guilt of the accused must be proved beyond a reasonable doubt. That this cardinal principle of criminal jurisprudence is applicable to court-martial proceedings is demonstrated by the provisions of Paragraph 78.a. of the Courts-Martial Manual.
Ilicks was tried on February 4, 1944, and was sentenced the following day. Five days later, viz., on February 10th, the president of the court-martial wrote a letter to the Commanding General of the Eighth Air Force, requesting clemency for Hicks “ * * * due to extenuating circumstances presented in the evidence * * * ” stating, “It is obvious that Private Donald * * * Hicks, * * * did have sexual intercourse with Mrs. Murray against her will but there is doubt in the mind of the Court that Mrs. Murray did take all normal precautions necessary to avoid the act, viz: she did not scream loud enough to be heard in the adjoining apartment, whereas if she had done so, testimony by the occupants of the adjoining apartments, viz: Mr. and Mrs. Smedley and Mr. and Mrs. Smith, showed that normal noises from the Murray apartment could be heard.”
If the members of the court-martial believed that Mrs. Murray did not take the “normal precautions necessary” to avoid rape and that even “normal noises” from the Murray apartment could be heard by the Smedleys and the Smiths, it is scarcely conceivable that five days earlier they could have believed Hicks to have been guilty beyond a reasonable doubt of the crime of having carnal knowledge of Mrs. Murray forcibly and against her will. For this reason I entertain grave doubt as to whether or not the provisions of Paragraph 78. of the Courts-Martial Manual were observed by the court-martial but since it is not appropriate in the proceeding at bar to go behind the express finding of the court-martial that Hicks was “guilty” of the specification and the charge I shall not dilate on this point further.
Errors of Reviewing Authorities.
The verdict of the court-martial and all of the proceedings were reviewed by the trial judge advocate, by the staff judge advocate
and by the Judge Advocate General’s Office. These reviews were inadequate. None of the substantial errors in the court-martial proceedings was noted as prejudicial error by the reviewing authorities. Indeed only one such error is mentioned, viz., the testimony of Corporal Strayel to the effect that he “could give acctised assistance if he would make a statement.”
The receipt of Strayel’s testimony was not deemed to be reversible
error and the reviewing staff judge advocate specifically found that. “The record is legally sufficient to support the findings and sentence.” No error in the proceedings before trial was commented upon, or even noted by the reviewing authorities.
Article 37 of the Articles of War, 10 U.S.C.A. § 1508, and paragraph S7.b. of the Courts-Martial Manual vest a sound legal discretion in the reviewing authority to the end that substantial justice may be done. .In Hicks’ case the failure of the reviewing authority to order a new trial was an abuse of legal discretion.
Law.
The Circuit Court of Appeals for this Circuit in United States v. Hiatt, 3 Cir., 141 F.2d 664, 666, held that the basic guarantee of fairness afforded by the due process clause of the Fifth Amendment applies to a defendant in criminal proceedings in a federal military court as well as in a federal civil court and that an “ * * * individual does not cease to be a person within the protection of the fifth amendment of the Constitution because he has joined the nation’s armed forces and has taken the oath to support that Constitution with his life, if need be.” The court went on to state: “This is not to say that members of the military forces are entitled to the procedure guaranteed by the Constitution to defendants in the civil courts. As to them due process of law means the application of the procedure of the military law. Many of the procedural safeguards which have always been observed for the benefit of defendants in the civil courts are not granted by the military law. In this respect the military law provides its own distinctive procedure to which .the members of the armed forces must submit. But the due process clause guarantees to them that this military procedure will be applied to them in a fundamentally fair way. We conclude that it is open for a civil court in a habeas corpus proceeding * * * and the manner in which it was conducted ran afoul of the basic standard of fairness which is involved in the constitutional concept of due process of law and, if it so finds, to declare that the relator has been deprived of his liberty in violation of the fifth amendment and to discharge him from custody.”
Respecting the Effect of Errors in the Proceedings before Trial.
The respondent contends that there was no error in the procedure before trial but if there was it is not proper subject matter for inquiry in a habeas corpus proceeding. The respondent’s position in this regard is stated in his brief as follows: “Such preliminary investigation resulting in actual filing of a charge of violation of an Article of War is not the ‘criminal prosecution’ itself.”, citing, inter alia, Romero v. Squier, 9 Cir., 133 F.2d 528, certiorari denied sub nom. Romero v. Squire, 318 U.S. 785, 63 S.Ct. 982, 87 L.Ed. 1152; Young v. Sanford, 5 Cir., 147 F.2d 1007, and Burall v. Johnston, 9 Cir., 146 F.2d 230.
Conceding that the pretrial procedure, whether in a criminal’ proceeding before a civil court or before a court-martial is not the criminal prosecution itself, it must be admitted that irregularities in pretrial procedure may invalidate a judgment even in a civil court
of criminal jurisdiction. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Cf. United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 and Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781.
While one of the purposes of the prescribed pretrial procedures is to determine whether charges shall be brought against a member of the armies of the United States, a primary purpose is to enable the accused to prepare his defense. The soldier cannot avail himself of the means of procuring witnesses and pertinent testimony so readily available to a civilian defendant. Under such circumstances the employment of the investigative techniques prescribed by the Articles of War and the Courts-Martial Manual is essential if the accused soldier is to enjoy a fair trial. Se'e United States v. Hiatt, supra, and compare Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225. The failure to employ these required investigative techniques was the primary reason why evidence of the complaining witness’s reputation for chastity never reached the court-martial at Hicks’ trial. An available body of substantial and pertinent evidence on the only real issue of fact presented, viz., whether Hicks had compelled the complaining witness to have sexual intercourse with him without her consent, was not investigated. For this reason the petitioner was unable to prepare properly his defense. The petitioner was not given the benefit of the procedure of the military law in this regard. This was a denial of due process of law to him. I shall not discuss in detail the effect of other errors in the proceedings before trial.
Respecting the Effect of Errors at the Court-Martial.
There were numerous errors committed at the court-martial. Of these “(1),” and “(2)” and “(4)”, under the heading “Errors in the Court-Martial Proceedings”, occurring in a criminal trial before a civil tribunal would each have constituted a denial of due process of law and a violation of the Fifth Amendment. The military procedure, as has been pointed out, afforded equivalent rights to Hicks. This procedure was breached and Hicks was denied due process of law thereby.
The court-martial did not receive evidence as to the complaining witness’s reputation for chastity in her community. Such evidence was available and its existence must be presumed to have been known to the trial judge advocate for the report of the investigating officer was in his hands. Evidence as to Mrs. Murray’s reputation for chastity was necessary “for a proper determination” of the matter before the court-martial. The military procedure required this evidence to be produced before and to be received by the court-martial.
This procedure was breached and thereby Hicks was denied due process of law.
While the matter just discussed may appear to lie in the evidentiary field and for that reason may seem to be beyond any question of denial of due process, such a view will not stand scrutiny. Here, as was also the case in respect to the insufficiency of the investigation referred to under the previous heading, the failure to observe the military procedure amounted to a denial of evidence to the accused. I conceive that it is not an answer to this statement to point out that no one intended to deny the petitioner a fair trial and that, perhaps if witnesses as to Mrs. Murray’s reputation for chastity had come forward their evidence would have been received. Such witnesses were not “available” to the petitioner because the military procedure was not observed and for that reason the petitioner was deprived of his rights.
I shall not discuss in detail the effect of the other errors in the court-martial proceedings.
Respecting the Totality of Errors.
Casting up all of the errors committed, hereinbefore referred to under the first three headings of this opinion, by reason of failure to observe the provisions of the Articles of War and the Courts-Martial Manual whether in the pretrial procedure, at trial and on review,
I conclude that these were so
numerous and of such effect as to deprive Hicks of the substance of a fair trial. The procedures of the military law were not applied to Hicks in a fundamentally fair way.
The petitioner’s conduct, however viewed, was such as to bring discredit and disgrace upon the armed forces of the United States. This fact may not be taken into consideration since the judgment of this court must be in accordance with law.
The motion made by the respondent to strike out exhibits offered by the petitioner will be denied. This court has made no use of the exhibits offered for the purposes of the decision except the “Record of Trial by General Court-Martial” but concludes that all of the exhibits should remain in the record for the benefit of the reviewing courts.
The petitioner will be discharged from custody. An order to such effect will be entered.