ABBREVIATIONS

"C. M. O." means "Court Martial Order," and the numbers following refer, first, to the serial number of the order, and second, to the year in which it was issued. For example, "C. M. O. 1—1916" means "Court Martial Order No. 1 of the year 1916."

28

Apr. 1754

2001

1916-1937

C. M. 0.1-1916

[P. 1] Ensign Lawrence K. Forde, United States Navy, was tried by general court martial December 7, 1915, on board the U. S. S. North Carolina, at the Naval Aeronautic Station, Pensacola, Fla., by order of the Secretary of the Navy, and found guilty of the following charges:

Charge I-Conduct unbecoming an officer and a gentleman (two specifications).

Charge II.-Disobedience of a lawful order of the Secretary of the Navy (one specification).

Charge III.-Drunkenness (one specification).

Charge IV.-Scandalous conduct tending to the destruction of good morals
(three specifications).

He was acquitted of the following charge:
Charge V.-Falsehood (one specification).

SENTENCE

"The court, therefore, sentences him, Ensign Lawrence K. Forde, United States Navy, to be dismissed from the United States naval service."

RECOMMENDATION TO CLEMENCY

The following recommendation to clemency signed by six of the seven members of the court was spread upon the record:

"In consideration of the unfortunate marital difficulties of the accused in which he was only in part at fault and the probability that much of his misconduct was due to a mental condition brought about by those difficulties, we recommend Ensign Lawrence K. Forde, United States Navy, to the clemency of the revising power."

ACTION OF SECRETARY OF THE NAVY

The record in this case was referred to the Bureau of Navigation and returned with the recommendation that the proceedings, findings, and sentence in the foregoing case be approved.

In view of the serious nature of the offenses of which this officer has been found guilty, the department feels that he is unworthy of retention as a commissioned officer in the United States Navy. In accordance with the recommendation of the Bureau of Navigation, the proceedings, findings, and sentence in the foregoing case of Ensign Lawrence K. Forde, United States Navy, are approved.

[P. 2] ACTION OF THE PRESIDENT

In conformity with the provisions of article 53 of the Articles for the Government of the Navy (section 1624 of the Revised Statutes), the record on January 7, 1916, was respectfully submitted to the President of the United States who, on January 11, 1916, confirmed the sentence of the court.

1

C. M. O. 2-1916

[P. 1] NONPAYMENT OF DEBTS: COMMISSIONED WARRANT OFFICER TRIED BY GENERAL COURT MARTIAL AND DISMISSED FOR FAILURE TO PAY DEBTS AFTER OFFICIALLY PROMISING TO PAY SAME.

Chief Gunner Thomas Smith, United States Navy, was tried by general court martial on January 24, 1916, at the navy yard, Boston, Mass., by order of the Secretary of the Navy, and found guilty of the following charge, the specifications of which were "proved by plea."

Charge. Conduct unbecoming an officer and a gentleman (10 specifications alleging neglect and failure to pay debts admitted officially in writing to be just; neglect and failure to pay such debts after repeatedly promising officially in writing to do so).

SENTENCE

"The court, therefore, sentences him, Thomas Smith, Chief Gunner, United States Navy, to be dismissed from the United States naval service."

RECOMMENDATION TO CLEMENCY

The following recommendation to clemency signed by four of the eight members of the court was spread upon the record:

"In view of his length of service, we recommend Chief Gunner Thomas Smith, United States Navy, to the clemency of the revising power."

ACTION OF SECRETARY OF THE NAVY

In view of the fact that the past record of this officer shows numerous similar offenses and the specifications to which he pleaded "guilty" set forth the fact that he has repeatedly violated his written promises concerning his just indebtedness, the Department concurs in the recommendation of the Bureau of Navigation, and accordingly the proceedings, findings, and sentence in the foregoing case of Chief Gunner Thomas Smith, United States Navy, are approved.

ACTION OF THE PRESIDENT

In conformity with the provisions of article 53, Articles for the Government of the Navy (section 1624 of the Revised Statutes), the record was submitted to the President of the United States, who, on January 26, 1916, confirmed the sentence of the court.

C. M. O. 3-1916

[P.6] CONFESSIONS: REASON BEHIND THE RULE AS TO ADMISSIBILITY.

George R. Macnamara, hospital apprentice, United States Navy, was tried by order of the commandant, United States naval station, Guam, on November 18, 1915, and found guilty of "Neglect of duty" and "Scandalous conduct tending to the destruction of good morals."

Macnamara was sentenced to be confined at hard labor for a period of 1 year and to be dishonorably discharged from the naval service, etc., but the period of confinement was reduced to 3 months by the convening authority.

In reviewing this case it is noted that the prosecution introduced a confession of the accused to the commanding officer of the naval hospital, said confession having been made in the presence of several witnesses at the time the offense was investigated.

The prosecution established the fact that this confession was voluntary, and subsequent examination of the witnesses by the counsel for the accused failed to establish that it was involuntary.

The counsel for the accused asked a witness the following question:

"18. Q. Did you give the accused to understand at this time that he was at liberty to decline to answer?

"A. No, sir" (Rec., p. 3).

[C. M. O. 3-1916]

The counsel for the accused thereupon addressed the court as follows:

"I would like to move that testimony of this witness regarding statements made to him by the accused be struck out, as they were not voluntary admissions, and were made in reply to questions given by one in authority, and practically amounted to obedience to his authority, and the person propounding the questions did not warn the accused that he was at liberty not to answer the same" (Rec., p. 3).

The court very properly overruled this motion to strike out this testimony, since the Department's precedents establish beyond a question that a confession made under the above circumstances is admissible in evidence.

Forms of Procedure, 1910, page 138, states that "it must be clearly shown that the confession was voluntary, and anything that will tend to show that a confession was extorted by threats or promises, or by use of force, especially by one in authority, will destroy its value as evidence." (See also C. M. O. 224, 1902; 82, 1908, p. 2; 47, 1910, p. 6; 17, 1910, p. 4; 26, 1910, p. 9; 31, 1911, pp. 5-6; 5, 1913, p. 9; 10, 1915, p. 5; Index-Digest, 1914, p. 10.)

"The court is allowed to take testimony to ascertain the absolute conditions under which a confession was made in order to decide whether it was a voluntary act of the accused." (Forms of Procedure, 1910, p. 138. See also C. M. O. 5, 1913, p. 9.) That is, it is proper for the court to allow a preliminary examination of witnesses, before the contents of the confession are divulged, to decide whether or not the confession was voluntary and thus admissible (C. M. O. 10, 1915, p. 4). Where the facts shown by this preliminary examination [P. 7] are confilicting the question as to whether the confession was voluntary is to be determined by the court, whose decision in general will not be disturbed (C. M. O. 10, 1915, p. 5; Index-Digest, 1914, p. 10).

It is a rule of evidence that in order for a confession to be admissible it must have been voluntary. The phrase "voluntary" is so "indefinite that it is of little service in inself" (1 Greenleaf, p. 355, sec. 219).

The reason behind the doctrine "and the controlling inquiry is, whether the inducement held out to the prisoner was calculated to make his confession an untrue one" (1 Greenleaf, p. 354, sec. 219).

Rice on Evidence (vol. 3, p. 489) states that the "confessions of the prisoner are receivable in evidence, upon the presumption that a person will not make an untrue statement against his own interest."

The underlying principle is that the confession "shall not be induced by improper threats or promises, because under such circumstances the party may have been influenced to say that which is not true, and the supposed confession cannot be safely acted on" (1 Greenleaf, p. 354, sec. 219).

"The reason for excluding the confession is, to repeat, not that the law affirmatively presumes it to be untrue, but that its truthfulness is so uncertain as to render it unsafe for the jury. Therefore, as often said, the real reason in every case is, whether or not the confessing mind was influenced in a way to create doubt of the truth of the confession" (2 Bishop's New Crim. Proc., p. 1049).

"The doctrine in its essence and divested of its technicalities is that a defendant's confession is admissible in evidence against him if made freely and without hope of benefit to his cause; otherwise it is rejected, since its purpose may have been to secure such benefit rather than to disclose the truth" (2 Bishop's New Crim. Proc., p. 1043).

The fact that Macnamara confessed to his commanding officer who was investigating this case does not of itself throw doubt upon the truthfulness of his confession and thus render it inadmissible (C. M. O. 7, 1914, pp. 13-15; IndexDigest, 1914, p. 10). Nor does the fact that he was not warned that any statement he might make during such investigation present grounds for an objection to the introduction of his voluntary statements to his commanding officer as a confession (C. M. O. 12, 1904, p. 4; 31, 1911, p. 6; Index-Digest, 1914, p. 10; File 26262-2478, Sec. Navy, Jan. 31, 1916; G. C. M. Rec. No. 31605).