Opinion of the Court
Homer Ferguson, Judge:
The accused was charged and convicted by a court-martial for rape and sodomy, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920, and Article 125, Uniform Code of Military Justice, 10 USC § 925, respectively. He was sentenced to dishonorable discharge, total forfeitures, and confinement for the term of his natural life.
The convening authority affirmed the sentence. The board of review modified the term of confinement to twenty-five years but otherwise approved the remainder of the sentence.
The defense requested review of six issues upon an open grant of which the first is one of factual sufficiency.
The accused in the company of three soldiers terminated their evening's liberty on July 8, 1956, with forced carnal copulation and sodomy on a young farm girl.
The victim testified as follows: During the evening of July 8, 1956, she was cycling to her home in the village of Alletsried from Roetz, Germany. She was traveling alone and upon coming to an incline in the road too steep for pedaling, got off her bicycle prior to passing four soldiers. After passing the soldiers, they called to her but she refrained from replying. The soldiers ran after her, took the bicycle from her and forcibly carried her into an adjoining oat field in spite of her protests and screams. She was violated sexually by each of the four soldiers. Upon the completion of these acts they returned with the victim to the road. After walking a short distance she was again taken into the woods, thrown to the ground and violated again by two of the soldiers simultaneously, one having sexual intercourse and the other committing an act of anal sodomy upon her. The two remaining soldiers did not participate in this act. They again led the victim from the woods and walked with her a distance. She managed to loosen a restricting wristhold and to flag a motorcyclist coming from the direction of Roetz, whereupon the soldiers released her and she was allowed to accompany the motorcyclist to the summit of the hill. She proceeded alone from there to her home.
The defense admitted the fact of rape and sodomy but denied the accused's complicity in it. The accused entered a plea of not guilty to the crime. He chose to testify and related his activities of the evening in question. His testimony revealed he left the border camp around 6:30 in the evening in the company of Cates, Costa, and Clinton. They stopped at a shop for gin and visited a place called "The House of Five Sisters." While walking back to camp, a girl approached them on a bicycle. The accused alleged Costa hailed the girl and engaged her in conversation. The accused related then that he discovered the loss of his duffel bag keys and told the group he was going back toward the town of Roetz to look for them. He walked toward the bridge located on the road. There, he began looking for his keys at the same point where he thought they had dropped from his pocket. He found his keys and double-timed back to catch up with his companions. They were waiting at the border camp gate. He affirmatively stated he did not participate in the rape or sodomy.
The prosecution relied for conviction upon the testimony of the prosecution's witness, Cates, one of the co-conspirators who had been convicted in an earlier trial. Cates testified that not only had the accused been a participant but an instigator, that he had been the one who had captured the victim. He stated it was the accused who had suggested the act be repeated, and that he, Cates, had had intercourse with the girl a second time while the accused had performed the act of sodomy upon her.
The prosecution also called a Frau Dambrowsky as a witness, who testified that she was returning to her home after attending the movies and had passed the girl on her bicycle and shortly thereafter had heard a scream. She also testified to the fact that she had passed no one else on the road. The accused testified he passed no one on the road when he sought his lost keys. Karl Hahn, a German barber for Company D, testified that the accused during the investigation had asked him to negotiate a money settlement with the victim's parents. He stated that the accused at that time had professed his innocence.
The defense relies upon appeal on the doubtful identification of the accused by the victim. She testified on the stand that the accused was one of the four attackers. However, the defense pointed out that the victim, from a police line-up of eight, had identified three who had victimized her but had failed to pick the accused from the lineup. Additionally, it was brought out that it was only after a German police officer had indicated to her that the accused was one of them did she become certain of his identity. While testifying on the stand, the victim stated she lost consciousness during the two periods of her attack, but positively identified the accused as one of the men.
The defense urges the lack of credibility of the main prosecution's witness, Cates, a convicted rapist, and that therefore his testimony lacked credence as a matter of law to support the accused's conviction. Another plea was that the witness, Cates, had on July 10, 1956, two days after the incident, signed a statement relieving the accused of any responsibility for the crimes. However, he recanted the truthfulness of the prior statement while on the stand. He stated' it had been agreed among the four that if anyone was caught he would not involve the others.
We do not agree with the defense that the prosecution's evidence was insufficient to sustain the findings of guilt as a matter of law. The members heard the testimony of the witnesses, observed the personal demeanor of each witness, and were in a superior position to judge the credibility of their testimony and to accept or reject it according to their judgment as to its truthfulness. In the absence of any evidence that the accused's conviction rests upon a showing of insufficiency as a matter of law, the findings of the court will remain undisturbed. We have long adhered to the judicial principle of appellate review that it is not our proper function to reweigh the credibility of a witness and to determine independently the credence to be afforded the testimony of each witness. United States v Taylor, 5 USCMA 775, 19 CMR 71. It is apparent the court members chose to believe the witness, Cates, when he implicated the accused-in the acts. It was additionally argued that some pressure was exercised against Cates in the form of a promise of a lighter sentence in return for his testimony against the accused. We have no doubt such a promise would influence a prospective witness to speak out, but that is not to say the testimony of the witness would completely lack truthfulness as a matter of law. United States v Taylor, supra. This information was placed before the court and was part of the evidence.to be taken into considera-i tion by it in judging his credibility. The court chose to believe the account of the evening given by the prosecution's witnesses and it therefore found adversely to the accused. We will not disturb that finding.
The following two assigned errors allege that the interpreter utilized at the trial was not sworn prior to his translation of the testimony of the witness, and that the board of review.erred in rejecting the accused's affidavits pertaining to the accuracy of the record of trial.
Necessitating an interpreter were those witnesses relied upon by the prosecution for the most part, including the complaining party, who were German nationals unfamiliar with the English language.
Article 42 of the Uniform Code of Military Justice, 10 USC § 842, sets out .the legal requirements of the officers who must take the oath before assuming their duties and functions in a court-martial. The Article reads in part as follows:
"(a) The law officer, interpreters, and, in general and special courts-martial, members, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, and reporters shall take an oath in the presence of the accused to perform their duties faithfully."
Defense challenges the authentic quality of the record in that it reflects the fact that the interpreter was sworn when, in fact, he was not so sworn. This contention is supported by way of affidavits of defense counsel, the contents of which reflect a statement that to their personal knowledge the interpreter was not sworn, further submitting in substantiation a note jotted down during the course of the trial by defense counsel to the effect that the interpreter had not been duly sworn. It is strongly urged that the board should have sent the record back to the convening authority for a hearing on this issue. We find insufficient merit in the argument to warrant further consideration of this alleged error. In United States v Galloway, 2 USCMA 433, 9 CMR 63, we emphasized our adherence to the well-settled doctrine that,
. . The great weight of authority in the United States holds that the records and judgments of the trial court import absolute verity and may not, in the absence of a charge of fraud, be challenged. Edminston v Hunter, 161 F 2d 691, 692 (CA 10th Cir); Thomas v Hunter, 153 F 2d 834, 838 (CA10th Cir); Smith v Hiatt, 54 F Supp 481, 483; 31 C.J.S. Evidence § 145, page 792, et seq."
See also United States v Walters, 4 USCMA 617, 16 CMR 191. In the absence of any allegation of fraud, we find no supportable theory upon which additional inquiry would be justified. The record of trial shows clearly that the interpreter was sworn and we accept it as an accurate recordation of the occurrence at the trial.
The next assigned error concerns an alleged error in the instructions. Examination of the record ]eaveg no doubt the accused jja(j ^e foenefit of full and appropriate instructions. We find no error.
Turning now to the fifth error urged, regarding the post-trial review, it is alleged that the staff judge advocate assumed the role of prosecutor in the instant case. It is argued that through the actions of the staff judge advocate prior to trial he became associated with the prosecution and, as a consequence, the accused was deprived of an impartial post-trial review. Through the testimony of the prosecution's witness, Cates, it was brought out on cross-examination by defense that Cates had been promised a reduction in sentence if he would agree to testify against the accused. It was additionally revealed that the staff judge advocate negotiated this agreement with the witness and that the witness received a personal assurance from the staff judge advocate he would recommend a sentence reduction. This same staff judge advocate reviewed the accused's conviction in accordance with the direction for review set out in Article 61, Uniform Code of Military Justice, 10 USC § 861.
Article 6 of the JJmüora1 Code of Military Justice, 10 USC § 806, sets out certain functions and duties of judge advocates and legal officers. Subsection (c) states:
"No person who has acted as member, law officer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same ease." [Emphasis supplied.]
In United States v Hightower, 5 USCMA 385, 18 CMR 9, we reviewed the application of this subsection. In arriving at a decision, we resorted to a comparison of a similarly phrased prohibition in Article 27(a) of the Code, supra, 10 USC § 827. We stated that: "Each of these articles of the Uniform Code prohibits persons who act in one capacity 'in any case' from thereafter performing duties in an inconsistent capacity in 'the same case.' The plain purpose of these provisions is to preclude situations which impair or destroy the fairness and impartiality of the proceedings against the accused." The error there rested upon the facts that revealed the accused at a former trial had had for his witness an individual who testified on his behalf. Later the individual was tried for perjury and contemporaneously charges were filed against the accused for having suborned his witness and for falsely testifying himself. The trial counsel who prosecuted the witness was appointed trial counsel (although he did not serve as such) in the prosecution of the accused, and then he subsequently conducted accused's post-trial review and prepared the formal staff judge advocate's review. We held that "such duality of function constitutes prejudicial error."
Those considerations prevail here. An affiliation of advocacy of an officer of a court whose function must carry with it a high degree of impartiality and fairness does not go hand in hand with the concept of military due process. The fact that the staff judge advocate here was instrumental in prevailing upon the witness, Cates, to testify against the accused leaves no doubt that his action had the earmarks of advocacy and zealous prosecution. He was precluded from rendering an unbiased and unimpassioned review as required by the Code. We hold, therefore, that the staff judge advocate was disqualified to review the record of the trial of the accused. As we said in United States v Renton, 8 USCMA 697, 25 CMR 201, "the very fact of being called upon to condemn or countenance one's own workmanship cannot create a healthy outcome and less so when the outcome concerns the accused's denial of substantial rights."
In accordance with the views expressed we do not find it necessary to discuss the final issue. Insofar as the decision of the board of review is contra to the views herein expressed, the decision of the board of review is reversed. The record is herewith returned to The Judge Advocate General of the Army for a new review by a different staff judge advocate.
Chief Judge Quinn concurs.
"Art. 61. Same — General court-martial records
"The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority. If the final action of the court has resulted in an acquittal of all charges and specifications, the opinion shall be limited to questions of jurisdiction and shall be forwarded with the record to the Judge Advocate General of the armed force of which the accused is a member."
"For each general and special court-martial the authority convening the court shall detail trial counsel and defense counsel, and such assistants as he considers appropriate. No person who has acted as investigating officer, law officer, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution."