China,Burma-India; India-Burma Theater, Board of Review Holdings and Opinions, Volume 3BOARD OF REVIEW .. BRANCH OFFICE OF THE JUDGE ADVOCATE GENERAL
/ CHINA-BURMA-INDIA llDIA-BURMA THEATER
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VOLUME 3 B.R. (CBI -IBT) CM IBT 489 · CM IBT 762
OFFICE OF THE JUDGE ADVOCATE GENERAL
WASHINGTON, D. C.
CHINA-BURMA-INDIA INDIA-BURMA THEATER
(1945)
Washington 1 1946
489 283140 492 292546 506 308785 .508 2923.53 51l 283129
".537 . . 307888 569 2934.51 .577 • 293468 .578 307877 $81 307886 607 618 293505 622 308860 926 , 30903.5 630 293481
637 308209 648 293471 649 293478
.6.51 293479 6.58 308183 661 308170 667 307404 677 308199 -678 308191 679 308167
'680· ~. 308168 .;I 684 308205
690 309013 706 294959 725 307936 734 307926 738 30791.5 742' 307842 . 743 744
/ 307843
CONTENTS OF VOLUME 3 B.R.... ..
Accused
Gonzales Wright Howard Dostellio Baines Pereira Farley Dixon Moniz Mason· Pugh Carrington Shim Garrity Mil.es, Palmer, Searcy, Thomas Brennan, Cooper Simmons McGhee Scarborough Smelley, Irwin Bernstein Jones Evans Anderson Stachiw Coles, Hauser Young, Riley, Roberts, Wideman, l.v'nch, McClurg Walker Stickney Colburn Pickens Thomas Carroll Chambers Clark Envell Zdon Garretson ~is
(CBI-IBT)
Date Page
1 May 1945 l 17 Apr 1945 15 4 May 1945 29
20 May 1945 39 -19 Apr 194.5 49
.5 May 194.5 55 30 May 1945. 61 5 Jun 1945 63 7 Jul 1945 67
13 Aug 194.5 7.5 10 Jul 194.5 93 l4 Jul 1945 103 28 Jul 1945 111 17 Jul 1945 133 3 Sep 194.5 13.5
24 Aug 1945 153 11 Aug 194.5 175 1.5 Aug 194.5 183 24 Aug 194.5 191 28 Aug 194.5 201 23 Aug 194.5 213 4 Sep 1945 219
21 Aug 194.5 231 25 Aug 194.5 235 29 Aug 194.5 . 239 10 Sep 194.5 247 l4 Sep 1945 259
12 Sep 1945 273 21 Sep 194.5 279 17 Oct 1945 28.5 9 Oct 1945 30.5 9 Oct 194.5 31.5
19 Oct 1945 317 2 Nov 1945 319<
31 Oct 1945 327 15 Nov 1945 337 21 Nov 1945 353 ' 28 Nov 1945 361 28 Nov 1945 313 . ~
(l) New Delhi, India 1 May 1945
•"] ,· ·'· Board of Review CM IBT 489 .
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Trial by GCM' convened at APO 218, , , v )·% Postmu.Ster1.N.Yo,N.Y.,.on 30,: .·
l ) January 19450. "Dishonorable Dis­
Vriva.te Ben,Eo Gonzales, )· charge; Total Forfeitures, Con~ .. ­ 35555470, 44th Field Hospital finement at Hard Labor for 20 ·
:years 0 United States Penitentiary ··nearest port of debarkation in · United States designated as place of coni' inement. · · I
HULD!NG by £lie BOARD OF REVIE'1/ O'BRIEN, VAL~NTINE·and VAN.NESS, Judge Advocate~
lo The record of trial in the caso of the soldier above named has been· examined by the Board of Review which submits this, its holding to the Assistant Judge Advocate Gsneral in charge of The
• Judge Advocate General's Branch Office, United States Forces, India Burma Theater. ·
2. Accused was tried on tho following Charge and Specification:
CHARGE: Violation of the 92d Article of War. . ·•
·Spocification: In.that Pvt Ben E Gonzul5s, did, at Mankrin, Burma, on or about·22 NovGillbor 1~44, with malice afore­ thought, willfully, deliberately, feloniously; ·uniaw­ fully; and with promeditation kill ono Lorkay, a human being, by shooting him with~a carbine, caliber JO, Ml.
Accused pleaded not guilty to and wus found guilty of tho Charge and the Spc;;cification. There was evidE"Jncc. of one previous conviction. Ho was sentenced to dishonorable dischnrgol forf6ituro of, all po.y and allowancos due or to ,bocome due and. conf nemc.nt at · hard labor for life. The ruviewing authority approved .tho:s0ntonce but reduced tho poriod of coni'inemont<to· 20 yoars and dosignatod:
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the United Stat0s P0nitontiary nearest the port of debarkation as tho :place of confinomGnt. Tho execution of the sentence was with_; held and the record of trial was forwardod :pursuant to Article of . ·liar 50i~
. 3, The evidence for the prosecution·shows that on 22 November V1944 accused's duty was that of guard with the· 44t~ Fiold Hospital)
which is looat&d about ono-half mile from tho villago of Mankrin, 1 Burma• He had boen issued carbine·No. 2938679 (R. 7). On that nightl at about 1730 or 1800 hours, he and Private Rios left th~ir; tent n the area and wont to a houso owned by a man named Oscar (R•
. 7, 8) •. Thoy had fourteen bottlas or beor·, same or which they dz:,ank before leaving their tent (R. 7). Rios left accused about 2130 or 2200 hours and returned to the hospital. Ac:icuse-d had his carbine with him and was not drunk when Rios. left (Ro 7, 8)~
Decenped Lorkay lived in Mankrin Village (R. 8,_9) about fift7 yards from the residence of Rabi Lal. Between 2200 and 2300 hours, 22 November,.Rabi I.8.1 was awakened by approximately ten or eleven continuous shots (R~ 9)o "One hour later" deceased crune to the house of Rabi Lal and at that time had blood on his body. He asked for water and said, "I was shot down by an .American". He uttered this twioe(R. 9). He died within twelve or fifteen feet of the house of Rabi Lal•about an hour or an hour and a half later. After deceased was shot, Rabi Lal left his house to report "to the head ma.nn but was stopped and threatened by an American soldier who told him not to go any farther. The soldier· went with Rabi Lal to where deceased "fell to the ground", took the pulse of decGased, and both then went to Rabi Lal's house where the .American stayed about a half an hour (R. 9, 10). There were no other soldiers there at the tino (R. 10). On cross-exrunination Rabi Lal stated hs wont for the hutiu man and was stopped by tho .American less thah a half an hour after deceased askGd for water (R. 10, 11), He identified accused as the ./ml.erican soldier and also tGstified that accused had a carbine with him that night. He did not see doceasod have a knife (R, 10),.
Sundram, who form.07ly worked in the laundry of the 44th Field. Hospital (R. 11), lived about two hundred feet from the house of deceased (R. 12).· On tho night tint Lorkay died Sundrrun heard gun shots, and Lorkay, who had blood on his ·race a~ body, came to Sundram's house, asked for water and said, "1 was shot by an .American soldier-.. An .American (R, 12) • ~he accused (R, 13), crunG in -. : .:· Sundram's house ·"five minutes" "after Lorkay was shot"• Ho carried a carbine (R, 12). Two Gurkha villagers wore with him (R, 13). Sund.ram was asked "How long was the .Amerioan soldier at.your houso when Lorkay camo in?", and replied; "It was about one half hour"• Lorkay died "after two hours time", and accused examined his :pulse and said, "Ho's doad" (R. 12). Lorkay was twolvo to fiftoGn feet from the house at the timo •. Aocusod "ordered" Sund.ram "to stay•xroar to body, not to go"• He said, "I'm an MP. I'll oall moro MP's",
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but he did not do so (R• 12, 13). Sundram did not see any weapon in Lorkay's possession (n. 13).
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About 0200 or 0230 hours, 23 November, the .guard at the hospito.J gate saw accused and was of the opinion that he,was sober (R. ,15, 16)
• On 23 November, Priv~te First Class Bertlesmann was assigned to
investigate a shooting. He found·a dead body a tow fe6t from tho house of Rabi Lal (R. 16),· On the road about twenty-five to thirty foot from Rabi Lal's house, Bortlosmann found a blood spot which was approximately one and ono-half feet in diamotor. Nea~by, about two feet away, ho found an O,D. wool knit oap, and a few feet wost of tho blood spot he found ten, .empty carbino shells whidh he tnrned over to Agents Smith and Purcell, Criminal Investigation Division (R. 16; Exhibits 3 and 4), Approximately one·hundred twenty-five feet away,- at the west corner of. a crossroads·, is a large tree (R.16} On· the morning of 23 November o.m Lieutenant Fomberg found a GI flash­ light and a shirt marked "G 5476"(Ex. l) under this tree, These were given to Captain Maung Ye, c.A.s. Police (Ro 17),.who turned them over to the agents, Smith and Purcell, Criminal Investigation Division (R~ 18)·. There were a few spots ot blood on the shirt.
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(4) 11He :was willing· and "Wanted to tell and sign· the statement tt and "we . ';old p.im that ·anything he, would say or .sign could be held against lim" (R. 2?). Accused•s written statement was intrOduoed and . ·eceive.d in evidence as Proseeution' s Exhibit 16. It states in iertinGnt parts: ·
'· ·''On 22 November 1944, at about 1800 hours, I left the
hospital area with Pvt. John Rios. We had about twelve bottles. ot bcC;,r with us and carried them in our pockets. we walked down the road leadinp, to Myitkyina and want.to a native village near t~e Indian ~ mo.tor poolo- Rios knew some 1Ult1ves ia this. village and we· went to a hut occupied by one of them, ani re•
. mained there for a few hours dri.nking beer. We did not have ·anything e:tse_to drink, I had r6.yoarQine.with a clip holding· 15 shells. I left tho hut about 2200.hours and started baok ~ thp "hol:lpital alone•· Rios remained in the hut. I went as f'ar as Mankriri Village and went to a native. hut where·r bought a pint bottle. or saki for 10· rupees.· I stayed in this hut until
.. I drank tne bo:t;tle of saki. The native drank some or the sakio ·When the bottle was empty I lef't the hut and went to the road. · .
. The native man f'ollowod me out and he ~s. trying to speak to me •. I Just started walk:!.ng to-we.rd the 475th Infantry. ·area, and the native man followed mo. ~After We.lking apout 1/2 mile I stopped· and asked.what he we.nted,·but did not:understandhis answer .. I saw that he was oarrying a long machete._ . I \ban started back , ... .toward ·the 44th Field Hospital, arid this na,tive ·man continued to tollow along behind me• When I reached the t_ree: near the . intersootion ot tha roads in Mankrin Village I halted•. The man•oontinued to'advanoe toward me, I shot the _carbine in the ai_r •. ti11ng one_ sho·t. ·in the hopo _or soaring the man. He st~~~ ltopt walking so I pointod the gun·. at him~ and pulled the :tri~r I
·~ and tired unt11 ·tho olip was empty~ He was about 50 teet from me wlle'n. :t firett .... I saw. him tall to. tlla road.,·. I then started . ~award tho. hospital-· but atoppod to remove my sllirt•. and I threw tho shirt in the .bushes noar a big tree. I·then returned ·to the Ho:Spi~al and .went: to bed. .I did not see Rios. again untU the to.llowing morning• . . . .
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.. "1'1io shirt~'and trousors. which aro shewn to me by .the a.I.De: agents arEl ·mi14e,. and I had. them on. thef nig~t>ot. 22 Novem~er 1941 •
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v . ttI caruiotrecall·touching'.the man after I shot him~· and· I · do· not know bow -the stains oame to get on my. shirt an<; trousers.
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(S) 4. The defense called Rabi Lal as a witness and adduced testi•
mony that deceased had a cap like Exhibit 3 though he could not absolutely identify: it as belonging to him. He did not know whether accused was drunk•. Sundram was also called by accused and testified that the American soldier, who was. very drunk, CE\ID.e to his house after deceased came in•. .The accused having had his rights f'ul;l.y ex­ plained to him elected to.remain silent.
5, The most serious matter to be given consideration 'is the admissibility of accused's written statement in which•he admitted shooting a native and firing ~ntil tho clip was 0mpty, after having sh9t once·in t~o air in the hope of scaring him. Accus~d, in this statement; attemptod to exculpate himself on _the ground of self-de­ fense but, viewing it as ~ whole, we bolleve th& t the admissibility of \he statement should be.governed.b~ the·same rules of exclusion as it' he had admitted murd.ering the· vict1m1 tor that is in fact its effect. It is by its very context an· inculpntory admission of the commission of the homicide and of itself imports guilt.
The record shows that accused was first questioned by two Criminal Inv6stigation Division agents who did not warn him of his rights under the 24th Article of "i"'/ar. After first denying any conneotion with the shooting, ho was told to stop bluffing and quit lying, whereupon he admitted shooting a native. In CM 254423, ~ Gonzalez, 35 B.R, 243, the board of ~oview said: ·
' . . . "The sto.temonts in the nature or a· confession of guilt made.
by accused to Lieutanant Frontora were not shown to have beon •oluntnry. Accused; an enlisted man1 had: boon arrested-by Lioutenant Frontera, the officGr of the day, and tba statements woro mado,in reaponse to questions propounded by the officer. Tho aoc()lsed had not.been informed of his rights under the 24th Articlo of War and ho had not:.beon advised that he need not make a statement if he did not Wish to do so. In tho absenoe of' such advico it may reasonably be ·assumed that accused would feel undo; ·oampul.ttd.on to answer· the• questions asked of him by the ofticor who had him in .custody, and tho absence of threats, promises,: or duress wa.s not sufficient to establish tho voluntary cho.ractar·or tho statements. Undor tho oirouinstances the
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!tis Qur opinion'tlio.ta.ocused's oral statoment .was inadmissible aild should have boon excluded by the court 0 In this. respect military
,, la.w ditf-0rs. from thut _of' the maJo.rity of' criminal jurisdictions. ' • ~ ' •. . f•' ' .• .. ., .• . .. - • ·: .• : '
.Almost 1mmed1o.t.ely .af'ter ·the oral sta.tomont was made accused ' was driven to.the:. tent .or the Criminal Investigation Divlsion agents,.. . .• •' .•·· . .
(6) o.p:proxima·tely s0ven miles away, whore a writton statement, Exhibit 16, was propar.od• Bof9re the statemont was written, tho agents
· warned o,ccusea ~ .his rights under Ar.ticle. ot War 24 o.nd made it clenr to hilil that he wbuld not bo compelled to sign the statement and that anything ho .would say or sign could be held a.go.inst him. One agont testified "He was willing and w~nted to toll and sign tho statemont", Attar tho sto.tGmont was prepared accused was taken botoro Lieutenant Carlson, Adjutant, who explained Article or ~o.r ·
. 24 tO· hm, attar ·'tlhtch. O.eoused signed the statement, .
Does the tact that an oral statement to tho offec~ tho.t accused shot a no.ti ve., dr.awn tram him under tho circumstances· heroinbeforo related, causo a written stctemont ta.ken a. short time thereafter, after due and.proper warning, to be likewise ino.dmisstblo? We think not. In coming to this conclusion we.are fully cognizant of our opinion in CM IET 284, Porl.:1:0 The circumstances hero are · ma.nifestly different and rendi!Y'"9afstinguishable from those in that oase. There we so.id: ·
. "It is believed that a serious irregularity appears with :respect to the admission in.evidence or accused's written confession {Exs. P-5, P-6). The record discloses tho.t on 20 July 1944, immediately after Perry had been wounded· and ., apprehended, he wo.s questioned at length by CID agents and,. after first denying his identity, finally admitted in the
.presence of four military superiors that he.shot Lieutenant Cady. Defense counsel's objection to the admission of testi­ mony as to the statements then mo.de by Perry was sustained by the Lo.w momber. The trial judge advocate did not attempt to lay a. ~oundation for the admission of such st~t3ne12ts and the matter was not pursued by defense cotl.llsel on cross examination•. Therefore, except as above indicated,' the record is silent o.s to ~he no.ture~or Perry•s sto.tement,or-20 July and the cir- .
. cumsto.nces under which they were mo.de. In partictlla.r, there is no showing whethor such statements constitute a confession or o.n admission and, if ·the termer whet.J;ler it was voluntary. · Manifestly, such circumstruic~s o.s do a~~-Of record militate against the voluntary nature of any coiifession then madeo Under the reasoning applied in CM ETO 1436 (1944) 3 Bull. JAG 227• if•Perryts statements ot 20 July 1944 constitute a con­ fession, and it·suo4 confession was improperly induced, it may be presumed; in the absence or clear and convincing evidence to the contrary, that the influence ot sucb prior inducement continued wita respect to his confessions ot 23 and 27 July._. Under the circumstances of this case' it is believed that the court should have tully elicited and carefully scrutinized the facts with respect to Perry•s statements ot 20 July in order
·to determine that no improper inducement was then used Wlrioh. might havG continued with respect to the confessions or 2.3 and. 27 July•. It is considered t~t the court's ~tailur!l to do so
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(7) casts a serious cloud on the admissibility of the subsequent confessipns which has·not been disp~led by the testimony adduced. Accordingly, it is·the view of the Board that Perry's written confessiorf3 (Exs. P-5, P-6) were inadmissible and · their reception by the court was error" 0
It is to be noted that in that case no circumstances were sho~n which would prove that Perry's first statement was·-volunta.ry and ; that the circumstances as a whole pointed to the contrary. It theta~ fore could not be determined whether there was any inducement, duress or intimidation which would carry over and make inadlftissibl.e a later confession after due warning. Because of the failure to show such facts under the particular circumstances there, we were of the opinion that the later confession should not have been ad­ mitted. ·
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"The first alleged confession of guilt was made on the morning of March 5, 1943 to Captain .Brown and Sergeant Warner. Both of these men were military superiors of the accused. Neither witness could clearly explain to what the accused referred when he said 'I did it'. He was not warned in any way that what he might say might be used against him 0 The rulesof evidence quoted above relating to confessions require fur~her inquiry .into the circumst~nces of a confassion to a military superior to clearly show its voluntary nature, other­ wise it will be rejected. We are of the opinion.that the testi· mony of both of these witnesses should, far the reasons stated, be rejected. This statement is entirely excludod from consid­ eration by the Board of Review in acti~ upon this case.
""dith reference to the confession made to Police Officer Rankin at 1 p.m•. on the same day, in the presence of two of the ~ccused's superior officers, the same criticism can be made;. There was…