695 MURPHY, J., dissenting. This court-martial conviction resulting from a trial fairly conducted cannot be invalidated by a judicial finding that the pre-trial investigation was not carried on in the manner prescribed by the 70th Article of War.10 Reversed. MR. JUSTICE MURPHY, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE concur, dissenting. Pre-trial investigation under the Seventieth Article of War performs a dual function. It saves the Army's time by eliminating frivolous cases; it protects an accused from the ignominy of a general court martial when the charges against him are groundless. These policies, of course, mean more than the protection of the respondent in this case. Their primary service appears when the defendant is clearly innocent. If the Article is ignored, and the court martial finds the defendant innocent, the error can never be corrected-the officers' time has been wasted and the defendant's record is forever besmirched by the words "general court martial." Yet if the prisoner is found guilty, there is still no sanction. For military authorities will not set aside a conviction unless the very accused asking reversal has been prejudiced. And if the trial has been fair, and resulted in conviction, who will say that the defendant has been prejudiced because preliminary investigation was wanting? Unless a civilian court is able to enforce the requirement, then, it is not a requirement at all, but only a suggestion which should be observed. Today the Court 10 District Courts and Courts of Appeal have not been in agreement on the question. Henry v. Hodges, 76 F. Supp. 968, 970–974; Anthony v. Hunter, 71 F. Supp. 823, 830-831; Hicks v. Hiatt, 64 F. Supp. 238, 242; Waite v. Overlade, 164 F. 2d 722, 723–724; De War v. Hunter, 170 F. 2d 993, 995-997. MURPHY, J., dissenting. 336 U.S. adopts the latter alternative. It holds that the error of noncompliance with A. W. 70 is not jurisdictional. It makes A. W. 70 a virtual dead letter. I cannot impute so bland a rule to the Congress. And no evidence of such sterility has been brought to our attention. What the Eightieth Congress thought about the problem is irrelevant, of course, for A. W. 70 was the product of the Sixty-Sixth Congress, in 1920, and respondent was tried in 1944, long before the Eightieth Congress convened. Had respondent's trial taken place in 1948, the result might be entirely different. The available evidence indicates clearly that the Sixty-Sixth Congress considered preliminary investigation vital before trial. The language of the Article is that of command—“no charge will be referred" without investigation. The report accompanying the 1920 statute, after referring to an investigation of unfairness in administering military justice, and concluding that "the personal element entered too largely into these cases," listed twenty-three changes in the law. The second change mentioned was this: "Speedy but thorough and impartial preliminary investigation will be had in all cases." H. R. Rep. No. 940, 66th Cong., 2d Sess., p. 2 (1920). In 1924, just four years after A. W. 70 became the law, the Board of Review construed the language directly opposite to the Court's present interpretation. It held that the error was jurisdictional. CM 161728, Clark. Two later holdings, both in 1928, confirmed this view. CM 182225, Keller; CM 183183, Claybaugh. In Keller, the investigation took place, but was not "thorough." The Board held that a thorough investigation was "an absolute right given to the accused by statute." And in 1937 Congress reenacted the same language we are construing now, the same language the Board of Review expounded in 1924 and 1928. 50 Stat. 724. It seems extraordinary to say that reversals of the prior rulings 695 MURPHY, J., dissenting. in 1943, CM 229477, Floyd, 17 B. R. 149, should govern when Congress has apparently acquiesced in the first, and contemporary, interpretations. Congressional belief in the importance of preliminary investigation should not now be frustrated by a holding that noncompliance cannot be attacked by habeas corpus. I agree with the court below that the preliminary investigation in this case did not meet the proper standard, and would affirm the judgment. Syllabus. 336 U.S. GRIFFIN v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 417. Argued December 15-16, 1948.-Decided April 25, 1949. 1. Petitioner, claiming self-defense, was convicted in the District of Columbia of murder in the first degree and was sentenced to death. On a motion for a new trial on the ground of newly discovered evidence, he relied on evidence that at the time of the killing the deceased had an open knife in his pocket. The trial court denied the motion on the ground that, since petitioner did not know that the deceased was carrying a knife, the evidence was inadmissible. An appeal was dismissed by the Court of Appeals without opinion. Held: The cause is remanded to the Court of Appeals with instructions to decide, in the first instance, what rule of evidence should prevail in the District of Columbia. Pp. 705-718. 2. In the circumstances of this case, it is inappropriate that the ground of the dismissal of the appeal be left to inference. Pp. 707-708. 3. There is no "federal rule" as to the admissibility of evidence of uncommunicated threats in a murder case in which self-defense is claimed; and, even if there were, it would not follow that that rule must also be the rule for the District of Columbia. Pp. 712-713. 4. Inasmuch as Congress may enact substantive rules of criminal law exclusively for the District of Columbia, the Court of Appeals for the District of Columbia should have the opportunity to formulate rules of evidence appropriate for the District, so long as the rules adopted do not offend statutory or constitutional limitations. Pp. 713-717. 5. The formulation of rules of evidence for the District of Columbia is a matter of local law to be determined, in the absence of specific congressional legislation, by the highest appellate court for the District. Pp. 716-717. 6. This Court should not undertake to decide questions of local law without the aid of some expression of the views of judges of the local courts who are familiar with the intricacies and trends of local law and practice; and only in exceptional cases will this Court review a determination of such a question by the Court of Appeals for the District of Columbia. P. 718. Remanded. 704 Opinion of the Court. Petitioner's motion for a new trial on the ground of newly discovered evidence was denied by the District Court for the District of Columbia. An appeal was dismissed by the United States Court of Appeals for the District of Columbia Circuit without opinion. This Court granted certiorari. 335 U. S. 866. Remanded with instructions, p. 718. Francis J. Kelly argued the cause for petitioner. With him on the brief were James R. Reynolds and J. Louis O'Connor. Charles B. Murray argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. This case was brought here under § 1254 (1) of Title 28 of the United States Code to review the dismissal by the Court of Appeals for the District of Columbia of an appeal from the denial of a motion for a new trial on the ground of evidence discovered after the petitioner had been convicted of murder in the first degree. 335 U. S. 866. The decisive issue is the admissibility of that evidence. The question arises not through its exclusion at trial but on a motion for a new trial in order to be able to introduce it as newly discovered. The petitioner, Baxter Griffin, was convicted of the murder of Lee Hunter. The killing was the outcome of a quarrel. Admitting that he shot Hunter, Griffin claimed that he did so in self-defense. His story was that the deceased and he were playing a card game called blackjack, that Hunter demanded a larger share of the pot than was his right, and that upon his refusal to pay, |