Lt. Col. Dolph Barnett, JAG, Seattle Port of Embarkation:
There was a charge of murder, the orthodox form, and two were convicted of manslaughter. Now, the murder charge—of course, those who actually committed the homicide were never found, and it was predicated upon the assault during the course of the riot—the felony committed during the course of the riot. Now, the court found them guilty, the two of them guilty of manslaughter. Now, in my opinion General, it was either murder or nothing. It doesn’t come within the purview of the definition of manslaughter because the assaults were aggravated assaults. Now, the question is what should the policy be: to pass it and let the Board of Review bring up that point if they want to—the point isn’t really in the record—or to bust it here. Of course, if my opinion is wrong, I assume there is nothing that can be done. As a matter of fact, it would make no difference whatsoever with reference to the sentences because a severer penalty may be meted out for the riots than it can for any type of manslaughter. So it’s a question of policy in my mind. Of course, I’m convinced that under the decisions—I’ve had them up before in trials of murder where you had to be careful as the evidence unfolded whether or not you’d give a charge of manslaughter where the evidence is either murder or nothing. Now, it’s a question of policy in my mind. In Horton’s Criminal Law, volume one, twelfth edition, section 525, it says—the author says, “We must, however, remember that the common law [defines] as manslaughter all killing when in the performance of an unlawful act.” And the unlawful act in this case is the riotous assembly. The cases cited under that are not apropos or pertinent at all. And I’m convinced that, technically, and from a legal point of view, it either had to be murder or nothing. But now it’s a question of policy in my mind, General. Think I better just pass it?
Major General Myron C. Cramer, Judge Advocate General, US Army:
Well, its entirely up to you that way. If you conscientiously feel you should bust it, I wouldn’t hesitate to bust it. On the other hand, if you’ve got some doubt in your mind, probably the best way to do would be to pass it and let the Board of Review pick it up.
Barnett:
That, perhaps—I wouldn’t say anything about it, but the thing’s so full of dynamite. That is, there’s so many different reasons involved.
Cramer:
Well, I don’t know enough about it—the facts—to tell whether I agree with you or not off hand. But, as I say, if you are in doubt about it, why I think probably the best way to do would be to pass it and let the Board of Review pick it up.
Barnett:
Not say anything about it…
Cramer:
If you are firmly convinced that that’s wrong, why I’d do just what I wanted to do; I’d bust it if you think that’s the right thing to do.
Barnett:
Of course, it won’t make any difference in the ultimate sentences, General, but, of course, when some people—when they think of manslaughter, they think that’s the graver offense, more serious. And, of course, these records are read by so many people. It’s a question of policy in my mind.
