author: HEANEY, Circuit Judge. STEPHENSON, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Raymond Louis STABLER, Appellant.
    No. 73-1261.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1973.
    Decided Jan. 8, 1974.

      John C. Mitchell, Omaha, Neb., for appellant.
    William K. Schaphorst, U. S. Atty., Omaha, Neb., for appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

Raymond Louis Stabler, an eighteen-year-old enrolled member of the Omaha Indian Tribe of Nebraska, was indicted for the first degree murder of Dennis Kenton Thomas, also of the Omaha Tribe, on the Omaha Reservation in violation of 18 U.S.C. §§ 1111 and 1153. He was tried before a jury, found guilty of second degree murder and sentenced under the Youth Corrections Act for treatment and supervision for fifteen years or until discharged. From that judgment, the defendant brings this appeal.

On the morning of September 19, 1972, a burning car with a dead body in it was found on the reservation near the Mormon Church in Macy, Nebraska. The body was burned severely and was not identified.

On September 18, Christine Mitchell, Leon Thomas and Dennis Thomas had been drinking heavily in several towns in the area, using Christine Mitchell’s car for transportation. A number of friends and relatives joined and left the group at various times; but late that evening, the Thomases, Mitchell and two twelve-year-old children returned to Macy. The car stalled before reaching Macy, and was pushed to that community and left near the Mormon Church. Christine Mitchell, Leon Thomas and the two children left the car at that point. There is some evidence that Dennis Thomas had passed out in the car before reaching Macy, but the evidence is conflicting as to whether he remained in the car after the others left.

On September 18, the defendant was also drinking heavily with another group. Their drinking took place principally in the home of the defendant’s sister, Arlene Grant. That night, as the group returned on foot to Arlene Grant’s after securing more liquor, they saw an automobile parked near the Mormon Church. They stopped and observed that someone was in the back seat of the car. The defendant opened the door of the parked car and peered inside. He may or may not have searched the pockets of the occupant. The car was discovered burning four or five hours later.

On September 21, 1972, Officer Lawrence Gilpin of the Bureau of Indian Affairs arrested the defendant on a charge unrelated to this case. When apprehended, the defendant volunteered to Gilpin that he had killed Dennis Thomas and set fire to the ear. He was taken to the Macy jail and, subsequently, gave full confessions to Officer Delmer K. Eastman of the Bureau of Indian Affairs and to F.B.I. agents. At trial, the defendant admitted making the confessions, but disavowed their content.

On appeal, the defendant alleges thirteen separate errors by the trial court as grounds for the reversal of his conviction. We need only consider three in detail: (1) that the court erred in admitting testimony concerning footprints; (2) that the court erred in admitting a certain bloodstained jacket; and (3) that the court erred in denying defendant’s motions for acquittal. We reverse and remand.

The Footprints in the Cornfield.

Two government witnesses testified that they found footprints in a cornfield adjacent to the Mormon churchyard two days after the fire occurred. No casts were made of the tracks and no photographs of them were taken. The witnesses both conceded that there was no way to identify the prints as belonging to the defendant. Moreover, one government witness admitted on .cross-examination that there “was a large crowd” present at the scene after the fire on September 19, and the area was not roped or fenced off. The trial court appears to have permitted the testimony on the theory that it tended to corroborate a statement by the defendant to law enforcement officers that after setting the car on fire, he ran into a cornfield. The trial court stated:

The jury will understand that this witness has not testified, and you are not to consider that any footprints which were observed in the cornfield were made by the defendant. The fact that there were footprints as opposed to an absence of footprints, however, I leave to you for your consideration.

In our view, it was error to admit the testimony. We said in McDonnell v. United States, 455 F.2d 91, 95 (8th Cir. 1972):

It is competent to present to the jury the character of footprints and shoes only where it has been established that the footprints and shoes are distinctive enough to afford reliable comparison. * * * Such comparison is essential to show a connection between the defendant and the prints, thereby providing the relevancy required for admission into evidence.

We see no reason to depart from that reasoning here. The offered evidence had only one purpose and that was to persuade the jury that the footprints were those of the defendant. The fact that the evidence would also tend to corroborate the defendant’s confessions is no reason for departing from McDonnell. To do so would lead to the absurd result that irrelevant and highly prejudicial evidence could be used to corroborate a confession and, thus, increase the probability of conviction, while it could not be used to support a conviction absent a confession.

The Bloodstained Jacket.

F.B.I. Agent Earl J. Webb testified that on September 21, 1972, the defendant stated that he was wearing “an army field jacket” on the night of the fire, but that his brother now had it. A police officer obtained an army field jacket from the defendant’s brother and the defendant identified it in the presence of Agent Webb. At trial, the defendant denied that he had ever worn the jacket. The trial court admitted the jacket over the objection of the defendant. Agent P. Rene Bidez, Chief of the F.B.I. Serology Unit, testified that he examined the jacket and found a % by Viath inch human bloodstain (less than two milligrams of blood) on the right cuff. He stated that all the blood was consumed in the experiments conducted to determine if the blood was of human origin and, therefore, “there was no grouping made.” This testimony was allowed over the defendant’s objection. The defendant’s expert, Dr. Irving H. Bernstein, testified that even the small quantity of blood found on the jacket “could have been typed for grouping.” The only evidence connecting the defendant with the jacket was his confession. The government did not introduce any other evidence which tended to establish that the defendant had worn the jacket on the night of the fire or that he had ever worn the jacket. The government argues that the jacket and the testimony of Agent Bidez were offered to corroborate the defendant’s confessions. These confessions included the assertion that he had stabbed Dennis Thomas in the neck before setting fire to the car. There was no physical evidence, however, which indicated that the occupant of the car had been stabbed.

In light of all the circumstances, we feel that it was error to admit the jacket and to permit Agent Bidez to testify that he found blood on the right cuff of the jacket. Not only was the evidence of doubtful relevancy, but its probative value was substantially outweighed by the danger of unfair prejudice to the defendant. See, Proposed Federal Rules of Evidence 401 and 403, 56 F.R.D. 194, 215 (1972). There was no independent evidence tying the defendant to the jacket, the jacket to the scene of the fire, or the bloodstain on the jacket to the body removed from the car. To the contrary, available witnesses were not questioned as to whether the defendant was wearing the jacket on the night of the fire, and the defendant's brother was not questioned as to when, if ever, the jacket was returned to him. The “bloodstained cuff” was clearly the most persuasive independent evidence linking the defendant with the crime. Yet, because the substance was consumed in the government’s tests, the defendant was deprived, albeit unintentionally, of the opportunity to prove either that there was no blood on the cuff or if there was, that it was neither his nor the decedent’s.

We are left then with the question of whether the errors in admitting evidence as to the bloodstained jacket and the footprints require a reversal. We feel they do.

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand * * *. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Applying the above standard, we cannot say that these errors were harmless.

Denial of the Defendant’s Motions for Acquittal.

The defendant contends that there was not substantial independent evidence to corroborate his confessions and admissions and that, therefore, the trial court erred in denying his motions for acquittal.

It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused. We observed in Smith v. United States, 348 U.S. 147, 153, [75 S.Ct. 194, 197, 99 L.Ed. 192,] that the requirement of corroboration is rooted in “a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.” In Opper v. United States, 348 U.S. 84-90, [75 S.Ct. 158, 162-163, 99 L.Ed. 101,] we elaborated the reasons for the requirement:
“In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of an enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession. Admissions, retold at a trial, are much like hearsay, that is, statements not made at the pending trial. They had neither the compulsion of the oath nor the test of cross-examination.” (Footnote omitted.)

Wong Sun v. United States, 371 U.S. 471, 488-489, 83 S.Ct. 407, 418, 9 L.Ed. 2d 441 (1963).

It is also settled that:

Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940, § 2072, n. 5. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted * * *

Id. at 490, n. 15, 83 S.Ct. at 418.

In view of these standards, we cannot say as a matter of law that the defendant’s confessions were not corroborated. However, there is no merit to the government’s argument that a confession or an admission may be used here to corroborate other admissions or confessions. See, United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (1954); Gulotta v. United States, 133 F.2d 683 (8th Cir. 1940). Yet, if the record is viewed in the light most favorable to the government, it can be said that there was other evidence from which the jury could have found that Dennis Thomas was dead and that his death was caused by a criminal act. The body was identified as a human body. Thomas was last seen in the car and has not been seen in the community since the fire. The car was parked long enough for it to become cool and negate the possibility that an operating defect caused the fire. Dennis Thomas did not smoke and was comatose when last seen.

We recognize that none of the stated independent evidence associates the defendant with the commission of the crime. Such was unnecessary in this case. See, Wong Sun v. United States, supra, 371 U.S. at 490, n. 15, 83 S.Ct. 407, 9 L.Ed.2d 441. This is not to say that the jury was required to find corroboration here, only that it could do so. It follows that the defendant was not entitled to a judgment of acquittal.

The defendant also contends that: (a) his confessions were not voluntary; (b) he was not expeditiously brought before the nearest available magistrate; (c) the court erred in denying his objections to the testimony of Agent Eastman; (d) the court erred in allowing the “coerced” testimony of Jesse Woodhall; (e) the government failed to comply with the court’s order to produce all confessions made by the defendant; (f) the government’s compliance with the court’s order to produce the results of all examinations conducted was not timely; and (g) the court erred in allowing the government to conduct certain experiments in the presence of the jury.

The defendant’s confession to Officer Gilpin was spontaneous and, therefore, admissible. See, Gilpin v. United States, 415 F.2d 638, 639 (5th Cir. 1969). The other confessions were given after the officers gave warnings in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although questions of the defendant’s ability to understand the warnings and, thus, to intelligently waive constitutional rights were raised, we are unable to say that the trial court’s findings of voluntariness are clearly erroneous.

The defendant was brought before a magistrate within thirty-six hours of his arrest. Under the circumstances presented by this case, the delay was not unreasonable.

We have examined the remaining contentions of the defendant. We find that in each instance, the claim is either without merit or the error is harmless.

Reversed and remanded.

STEPHENSON, Circuit Judge

(dissenting) .

I respectfully dissent. It is my view that the trial court did not abuse its discretion in admitting testimony concerning footprints and the bloodstained jacket which appellant confessed he was wearing at the time he burned the car and killed the victim. I would affirm the conviction.

Special Agent Webb of the Federal Bureau of Investigation testified that appellant during the course of his confession related that: when he entered the parked car the victim, Dennis Thomas, was lying down on the back seat apparently sleeping; he tried to turn the victim over.“so that he could see if he had a wallet and take his money;” “he stabbed Thomas in the neck;” “he didn’t bleed too much;” appellant then started a fire in the car, closed the door and ran into a nearby cornfield to a large block house (cistern) upon which he climbed and watched the fire.

During the course of the confession appellant accompanied agents Webb and Oxler to the scene where Webb testified appellant “showed us the direction of travel that he took” through the cornfield to the cistern; he described the clothing he wore the night of the murder which included a field jacket that was obtained from appellant’s brother and identified by appellant as the one he was wearing. The jacket was sent to the F. B.I. laboratory and a witness testified that a stain on the jacket cuff was human blood.

On cross-examination Agent Webb testified “Well, the only set of footprints we found was one set, and they led in the general direction from the area of the car in a circular manner towards the cistern.” He conceded there was no way to identify the footprints, they varied, they started in the area where appellant indicated he ran into the cornfield, but there was no continuous pattern. The footprints were not identifed as having, been made by appellant and the able trial court so cautioned the jury and instructed the jury that the testimony was to be considered only for its bearing on the issue of the presence or absence of footprints.

In McDonnell v. United States, 455, F. 2d 91, 95 (C.A.8 1972), cited by the majority, the footprints were offered as independent evidence of defendant’s presence in the bank. In the instant cause they were offered for the purpose of corroborating appellant’s confessions which at trial he admitted making but claimed were a sham. The absence of footprints would have made appellant’s confession suspect, their presence and location were consistent with his confession. To that extent they were relevant and admissible.

Similarly the jacket which appellant confessed he wore during the stabbing and the expert testimony that the stain thereon was human blood was properly admitted to corroborate appellant’s statement that he stabbed the victim and the victim bled albeit not “too much.” The evidence concerning the jacket was obviously introduced to establish the trustworthiness of appellant’s confessions. It was relevant for that purpose.

The Supreme Court has made it clear that the “corpus delecti” may be established by independent evidence of the crime and by corroborating the confession so that in effect the evidence speaks through the confession. In Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192 (1954) Mr. Justice Clark speaking for the court stated the rule as follows:

All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense ‘through’ the statements of the accused.

In Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954) Mr. Justice Reed speaking for the court summarized the rule as follows:

However, we think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. Smith v. United States, post, [348 U.S.] 147 [75 S.Ct. 194, 99 L. Ed. 192]. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.

See discussion, McCormick, Law of Evidence § 158 at 346-49 (2d Ed. 1972).

We have recognized that it is appropriate to receive evidence for the purpose of establishing the trustworthiness of a confession. Gerberding v. United States, 471 F.2d 55, 61 (C.A. 8 1973); Fisher v. United States, 324 F.2d 775 (C.A. 8 1963). The details of the confession often supply the basis for the relevancy of the evidence. Fisher, supra; United States v. Abigando, 439 F.2d 827 (C.A. 5 1971); United States v. Demangone, 456 F.2d 807 (C.A. 3 1972); United States v. Waller, 326 F.2d 314 (C.A. 4 1963); Mapys v. United States, 409 F.2d 964 (C.A. 10 1969); Hagan v. United States, 245 F.2d 556 (C.A. 5 1957); Gallegos v. States, 152 Neb. 831, 43 N. W.2d 1 (1950).

We have subscribed to the rule that the trial court will be accorded wide latitude in passing on the admissibility of evidence. The exercise of this discretion will not be disturbed absent a clear showing of abuse. Wangrow v. United States, 399 F.2d 106, 115 (C.A. 8 1968); Cotton v. United States, 361 F.2d 673 (C.A. 8 1966); compare, United States v. Ravich, 421 F.2d 1196, 1203-1205 (C. A. 2 1970).

I fail to find an abuse of discretion on the part of the trial court in admitting the testimony concerning the footprints in the cornfield and the bloodstained jacket. Here the trial court was in a position to weigh the probative value of the evidence against possible prejudice in its admission. I see no reason to interfere.

I concur with the majority opinion in all other respects.

      . The defendant stated that he decided to lie' about killing Dennis Thomas because he didn’t “like to stay in Macy” and he couldn’t find a job. lie thought that by confessing to the murder, he could go “back to Kearney,” a training school he had spent time in and apparently enjoyed. He testified that he decided not to take the “rap”, “[b]eeause I don’t want to go to the penitentiary the rest of my life.”
      Beverly Tupper Mead, a psychiatrist who examined the defendant, offered the following opinion:
      * * * [The defendant] certainly has had it, as the expression goes, up to here. He’s totally disenchanted and unhappy with the Macy living situation. It lias been something — a bad experience all of his life, and particularly terrible experience for the past six years. And in talking to him about the many times that he has gone to jail, which didn’t seem to bother him at all as long as he was away from Macy, and his times in Kearney, which seem to be rather the more pleasant periods of his life. I can imagine that if being kept in Kearney is more pleasant than your own home that one would certainly be motivated to do any number of things, including falsifying information to try to get away from an unhappy home situation; perhaps I might even say an almost intolerable home situation.

      . Richard B. Wilson, the doctor who performed the autopsy, testified as follows:

        Q. Was there anything around the tissue of the neck that would indicate any type of entry into the body?
      A. No, sir; not that I could detect.
      Q. So that we understand that, Doctor, your answer is that you could see no incision, no insertion of any foreign body into the neck tissue?
      A. I could not.
      Q. And if there had been there was enough of the tissue of the neck left so that you could have disclosed that — or found that?
      A. No, sir, I would say not. There was virtually nothing left but the bony tissues and muscular tissue that had shrunken down against the neck; but the anterior or front tissue, including the larynx and the entire face, were absent; so the soft tissue damage could not be detected by me.

      . Appellant was interviewed by Special Agents Webb and Oxler in the Tribal Police Department building after he had earlier confessed to Agent Gilpin, Special Deputy with the Bureau of Indian Affairs, and subsequently to Delmer Eastman, Criminal Investigator for the Bureau of Indian Affairs, that he had killed the victim and set fire to the car. In addition to the foregoing confessions appellant made admissions of guilt to three other persons who were not law enforcement officials.


source: Caselaw Access Project

author: SNEED, Circuit Judge: ALDRICH, Senior Circuit Judge, DUNIWAY, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. James Frederick CHURCH, Appellant.
    No. 73-2218.
    United States Court of Appeals, Ninth Circuit.
    Dec. 7, 1973.
    Rehearing Denied Jan. 4,1974.
    Alexander Anolik, San Francisco, Cal., for appellant.
    Harry D. Steward, U. S. Atty., William A. Bower, Asst. U. S. Atty., San Diego, Cal., for appellee.
   OPINION

Before ALDRICH, DUNIWAY and SNEED, Circuit Judges.

SNEED, Circuit Judge:

James Frederick Church, appellant, was convicted of possession with intent to distribute 477 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). On appeal, Church raises the issue of whether the trial court committed error in refusing to suppress contraband discovered by agents of the United States Bureau of Customs during a warrantless search of the automobile which he was driving.

There is no dispute as to the facts in this case. At approximately 5:00 a. m. on December 6, 1972, personnel of the United States Border Patrol and United States Customs Service began a surveillance of the Wisteria Check area of the All American Canal — an area known by them to have a high incidence of marijuana and alien smuggling. Shortly after 6:00 a. m., the agents observed an individual on the Check who quickly disappeared upon the approach of a passing irrigation truck. After the truck had departed, two men were seen to enter the Check and unlock the gate which blocked passage over the bridge which crossed the Canal at that point. As the gate was being unlocked, the agents also observed four automobiles approach the Canal just west of the Check. At approximately 6:30 a. m., the vehicles crossed the Canal and proceeded to head north.

The vehicles drove north from the Canal toward Highway 98 and then west on Highway 98. No attempt was made to stop any of the vehicles at this time; however surveillance was continued by one of the agents. When the vehicles reached Clark Road, which is some fifteen minutes drive from El Centro, California, the caravan broke into two groups and the agent lost visual contact with two of the vehicles, one of which was the automobile later stopped and searched while being driven by Church. A second diversionary tactic left only one of the vehicles under visual surveillance, which continued on into El Cen-tro. After being notified by radio that the automobiles which had remained on Highway 98 were no longer under observation, additional surveillance units merged in El Centro in the hope of regaining contact. In downtown El Cen-tro one of the units spotted two parked vehicles which were recognized by the agent as being the same as those observed earlier on the Check. Surveillance was reinstituted at approximately 6:50 a. m., and by 7:00 a. m. five agents had converged on the unoccupied vehicles. The agents approached the automobiles, detected the odor of marijuana emanating from them and observed a kilo brick of marijuana in plain sight inside the vehicle which was the subject of the search at issue here.

After they had ascertained that the vehicles were carrying marijuana, three of the agents remained in El Centro to continue the surveillance. Over the next four hours neither of the vehicles were moved or approached until, at 11:00 a. m., Church entered one of the automobiles and drove it away. The vehicle was driven to a nearby motel, where it remained for some forty minutes, and was finally stopped shortly after Church had left El Centro heading west. As the agents approached the stopped vehicle, they again smelled the odor of marijuana emanating from the open door. The vehicle was searched immediately, without warrant, and 217 kilos of marijuana were seized.

Church contends that, even if the agents had probable cause to search the automobile at the time when it was finally stopped, the circumstances did not justify a search without a warrant. He bases his contention on four grounds: (a) that the search cannot be justified under the automobile exception of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); (b) that the search cannot be classified as a “border search” under Al-meida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); (c) that the “plain view” doctrine, as expounded in Coolidge v. New Hampshire, supra, is inapplicable; and (d) that the search cannot be justified as a “search incident to an arrest” under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968). Because this ease is controlled by our prior holdings in United States v. Cohn, 472 F.2d 290 (9th Cir., 1970), only the first issue is reached.

As in Cohn, supra, there were “exigent circumstances” at the time the agents first approached the parked vehicle and therefore a search without a warrant would have been justified at that time. Coolidge v. New Hampshire, supra, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, supra. Although unoccupied, the automobile was parked on a public street, was known to have just come from an area having a high incidence of marijuana smuggling, and was subject to being moved again at any time and driven outside the jurisdiction. These factors, coupled with the early hour at which the vehicle was initially observed, the agents’ discovery of a kilo brick of marijuana in plain view inside the automobile and their detection of the odor of marijuana, provided more than ample justification for a warrantless search of the vehicle. United States v. Cohn, supra, 472 F.2d at 292.

The fact that the agents did not conduct an immediate search of the automobile when they first approached it is not a distinction which would take this case outside our holding in Cohn. While our decision in that case was in part based on our belief that it would have been a meaningless gesture to require the officers to obtain a warrant to search for contraband which had already been lawfully discovered, it was also based on our belief that “hindsight” is an improper criterion for evaluating the need for a warrant. United States v. Cohn, supra, 472 F.2d at 292. See also United States v. Sherman, 430 F.2d 1402, 1406 (9th Cir., 1970). That reasoning is equally applicable to the facts presently before us.

Judgment affirmed.

ALDRICH, Senior Circuit Judge,

(concurring in the result).

While I agree with the result, I think the court’s reliance on United States v. Cohn, 472 F.2d 290 (9th Cir. 1970) in part exaggerates the holding in that case, and in part attaches weight to a dictum therein that, with due respect, I cannot accept. In Cohn, as soon as they found the car parked on the street the officers, clearly having probable cause, made a search and discovered a quantity of marijuana. Instead of seizing it, they withdrew and watched the ear for nineteen hours. During this interval there was a change of guard, and ample opportunity to obtain a warrant, but none was sought. When, ultimately, defendant appeared and drove off, the officers pursued and arrested him.. They then searched the car again, and seized the contraband. In upholding the second search the court pointed out that the original search, being based on probable cause and “exigent circumstances,” was legal, and that it would be a “meaningless gesture” to seek a warrant for a second one. I agree that the first search could be found lawful and, since there was no first search in the case at bar, need not quarrel with the conclusion the court drew from it. At the same time one must note that what is justification to enter without a warrant at one time does not necessarily carry over to another. See, e. g., Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L. Ed.2d 777. As to Cohn’s final remark, that the claim that the officers had time to obtain a warrant during their nineteen hour vigil was “hindsight,” with due respect I think there must be a better approach.

In the case at bar the officers merely looked at the automobile when first discovered parked on a public street, and from that vantage point both smelled marijuana and saw what appeared to be a kilo brick thereof through the window. Had this smell come through the door of a hotel room, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), or the view been through the transom, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), it would not have been sufficient to justify entrance therein.

“[P]lain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly-stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971).

An automobile on a street commonly presents “exigent circumstances.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). But as Coolidge v. New Hampshire plainly holds, the circumstances of a search must be viewed as a whole, and even as to an automobile search the question remains whether the circumstances at the time of the search indicated that the delay or inconvenience in obtaining a search warrant would likely thwart the efforts to conduct the search, or result in the disappearance of the objects sought.

I will assume that if the officers had been apprehensive and had searched the ear at once, they might have claimed the Carroll exception in spite of the fact there was a known available magistrate only a block away. Instead, they made no attempt to obtain a warrant, but chose to do nothing for four hours even though as many as five agents were at times present and there was radio contact with potential reinforcements. If they could safely postpone the search to wait for a suspect to appear, they could equally wait for a warrant, subject, of course, to the possibility of interruption if the suspect came first. The longer they did nothing in such circumstances, the less credible would seem a claim that because of the urgency of the situation it was impracticable to call on the magistrate for a warrant. I would have been greatly concerned if, after four hours, they had chosen to enter the unattended car without one. Where the burden of obtaining a warrant can be readily met, officers should exercise forethought rather than claim they are blameworthy only by hindsight.

It seems apparent, however, that the officers’ primary interest was not directed to the car, but was to lie in ambush, with the car as bait. This is not a case where the officers, having grounds and opportunity to obtain a search warrant, waited and sought to substitute seeing someone committing a felony on the premises as an excuse for making a warrantless entry. Cf. Niro v. United States, 388 F.2d 535 (1st Cir. 1968). Here the officers did not need an excuse to enter, but chose, instead, to concentrate on making an arrest. When the defendant arrived and drove off in a ear known to contain contraband, he was committing a felony in their presence, and they had an immediate right to arrest him. I see no reason why they could not then assert, in connection with the arrest, exigent circumstances with respect to the car. Carroll v. United States, ante; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); see Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L. Ed.2d 777 (1964). In spite of the limitations that a rigid application of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) might suggest, I would be loath to say that police, having probable cause to arrest the occupant in an automobile on a public street, should not have the freedom of searching the exposed portion of the car without first rebutting a claim that they could adequately protect its contents by removing the occupant and setting up a guard detail while securing a warrant. On this basis I join in the affirmance.

DUNIWAY, Circuit Judge

(concurring) :

I concur in affirming the judgment. I agree that our decision in United States v. Cohn, 9 Cir., 1973, 472 F.2d 290, is in point. Judge Aldrich points to the fact that in Cohn, the officers did search at the time of the stakeout and then replaced the contraband, and used the car and its contents as bait to catch the criminals, while in our case the officers, although they obtained probable cause from the odor and from seeing a kilo brick of marijuana in the car, did not search, but, as in Cohn, used the car and its contents as bait. I cannot see, however, how that difference has legal significance. As a matter of fact, the first search in Cohn only produced one kilo brick of marijuana, which was. replaced, plus a reasonable belief that there was more behind the seat. The second search was far more extensive; it produced thirty-eight more kilo bricks. What difference should it make that in Cohn the officers took out the one brick that was in plain sight and then replaced it, while in our case they merely saw it and left it undisturbed? I think that, if the second search in Cohn, which produced thirty-eight previously undiscovered kilos of marijuana, was valid, the search in our case was also valid. Hence I agree .with Judge Sneed that Cohn is controlling.

Like Judge Aldrich, however, I have trouble with the rationale of Cohn. I agree, as he does, that in Cohn and in our case exigent circumstances would have justified (did justify in Cohn) an immediate search when the fact that the car contained contraband first became known. I also think, as Judge Aldrich does, that this is not enough to justify making the second search without a warrant. To so hold seems to me to fly in the face of the decision in Preston v. United States, 1964, 376 U.S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777. In that case, the police had probable cause to search at the time when they arrested the defendants. They did not, however,- search at that time, but instead waited until later when the defendants were booked at police headquarters and the car was sitting immobile in a garage. The Court said: “[T]he police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place.” 376 U.S. at 368, 84 S.Ct. at 883. The Court then proceeded to hold the search invalid, because at that time no exigent circumstances justified the failure to obtain a warrant. Preston, then, requires that we look at the circumstances under which the search was made. The search cannot be justified merely because a previous partial search was made (Cohn) or could lawfully have been made (our case).

I think it entirely proper, when officers know, or have probable cause to believe, that a vehicle contains contraband, for them to use it as bait to catch the criminals. Doing so is good police work and violates no rights. When, as in Cohn and in this case, the car has been left in a public place, and the criminals may at any time appear and drive it away, I think that exigent circumstances permit an immediate search. However, such a search is not required. The officers may well conclude that they might be discovered while searching, and lose their quarry. So, if they choose, they can wait for their quarry to appear without searching. When the quarry does appear, enter the car and drive off, an arrest can be made and the car searched — with a warrant if one has been obtained, without one if the circumstances at that time bring the case within one of the exceptions to the warrant requirement.

Here, as in Cohn, the circumstances at the time of the search (I refer to the second search in Cohn) do, as Judge Aldrich points out, come within one of those exceptions — the arrest of the driver of a car on a public street. Here the officers did what the Court said that the officers could have done in Preston, supra, but did not do. They searched the car when they made the arrest. I also agree with Judge Aldrich that here and in Cohn there was no subterfuge undertaken to avoid having to get a warrant. I think that it is on the foregoing grounds, rather than the ground stated in Cohn, that the second search in Cohn should have been upheld.

I would be happier, however, if the. officers in this case and in Cohn had obtained a warrant while they waited, as I believe they could easily have done. . If in future cases there appears to be abuse of the Cohn decision and of this one, I may conclude that the Cohn decision and this one should be reexamined. As the Supreme Court has repeatedly said, when a warrant can be obtained, it ought to be obtained. Officers of the law can save themselves and the courts a great deal of trouble if they will bear that rule in mind and act upon it instead of taking a chance that their failure to obtain a warrant may later be condoned by the courts.

       Hon. Bailey Aldrich, Circuit Judge, First Circuit, sitting by designation.

      . The Wisteria Check area of the All American Canal is located 100 feet from the Mexican-American border and approximately three and one-half miles west of Calexico, California. The All American Canal parallels the Mexican-American border for some two to three miles east of the Wisteria Check and for seven miles west of the Cheek before it turns north. There are dirt roads leading south from the Wisteria Check into Mexico, and another road which runs just south of the border from Mexicali to the Check and beyond.


author: EUGENE A. WRIGHT, Circuit Judge: TRASK, Circuit Judge

text:
    Robert M. DAIGLE, and Terry Lee Crosby, Individually and on behalf of all persons similarly situated, Petitioners-Ap-pellees, and Jack Nazimek et al., Petitioners, Intervenors-Appellees, v. Honorable John E. WARNER, Individually and in his capacity as Secretary of the Navy, et al., Respondents-Appellants.
    No. 72-2801.
    United States Court of Appeals, Ninth Circuit.
    Oct. 24, 1973.
    As Amended on Denial of Rehearing Jan. 29, 1974.

      Lt. E. Alan Hechtkopf, Staff Atty., Judge Advocate General’s Office, Washington, D. C. (argued), Robert K. Fuku-da, U. S. Atty., Honolulu, Hawaii, James L. Browning, Jr., U. S. Atty., Chester G. Moore, III, Asst. U. S. Atty., San Francisco, Cal., William J. Eggers, III, Asst. U. S. Atty., Honolulu, Hawaii, for respondents-appellants.
    Stanley E. Levin, Waianae, Hawaii (argued), Paul Alston, Legal Aid Society, Waianae, Hawaii, John S. Edmunds, Mattoch, Edmunds, Kemper & Brown, Honolulu, Hawaii, David F. Addlestone, Lawyers Military Defense Committee, Washington, D. C., for petitioners-appel-lees.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

In this habeas corpus proceeding, petitioners attack their convictions at summary courts-martial on the basis that they were not afforded representation by counsel. We must decide whether the Sixth Amendment’s guarantee of counsel in criminal prosecutions, as interpreted and applied in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), is applicable to trials before summary courts-martial. We hold that it is not. We must also decide whether the Fifth Amendment’s guarantee of due process of law requires the military to appoint counsel in every case in which the defendant is sentenced to confinement. We hold that it does not. We therefore reverse the judgment of the district court, 348 F.Supp. 1074 (D.Haw.1972), granting petitioners writs of habeas corpus.

I. The Facts

There were six petitioners before the district court, including the four inter-venors. Each was an enlisted member of the Marine Corps stationed in Hawaii.

In June, 1972, Petitioner Daigle was informed that he would be tried by a summary court-martial on charges of disobeying an order and possession of two identification cards with intent to deceive. He requested information concerning the assistance of counsel and was advised that he could consult with a legal officer prior to the court-martial but did not have the right to the assistance of military counsel during the proceedings.

Daigle consulted with a member of the Judge Advocate General’s Corps prior to his trial, and was advised of his options with respect thereto. He asked the Judge Advocate officer to assist him at trial but was told that under the Uniform Code of Military Justice [hereinafter UCMJ] and the Manual for Courts-Martial [hereinafter MCM] he was not entitled to have military counsel represent him at trial, although he could have retained civilian counsel.

Daigle appeared at the court-martial, pleaded guilty and was sentenced, inter alia, to confinement at hard labor for twenty days.

Also in June, Petitioner Crosby was informed that he would be tried on three charges by a summary court-martial on July 6, 1972. He, too, was told that he might first consult a legal officer and did so. No lawyer was provided for him at trial. He pleaded guilty to the first charge (disobeying an order) and not guilty to the other two charges. On these latter two he was acquitted after a trial and was sentenced, inter alia, to confinement at hard labor for thirty days.

Petitioner Chadwick’s situation generally resembled that of Daigle and Crosby, except that when he went to the Naval Law Center to seek advice he was told by a non-lawyer that he should plead guilty because he would probably receive only a light sentence. He, too, was sentenced to confinement at hard labor for thirty days.

Petitioner Robinson was convicted after a plea of not guilty to a charge of sleeping on guard duty. He did not have assistance of counsel at his trial nor does the record indicate that he ever consulted with an attorney before trial. He was sentenced to multiple punishments, including confinement at hard labor for thirty days. He has always maintained his innocence of the charges against him.

Petitioner Nazimek was convicted of unauthorized absence. He had consulted with a Judge Advocate officer prior to trial and pleaded guilty at the trial. He was sentenced to confinement for fifteen days.

Petitioner Johnson was also convicted of a variety of specifications upon his plea of guilty and sentenced to 29 days confinement.

The proceedings in the district court are described in some detail in that court’s opinion filed on August 31, 1972. Daigle v. Warner, D.C., 348 F.Supp. 1074. There is no need to repeat that description here. The court held that Argersinger does apply to the military and further:

“Whether considered in terms of due process or the Sixth Amendment right to counsel, this court holds that the type and quality of representation which must be provided under Arger-singer to summary courts-martial perforce may vary with the context of each particular case.” 348 F.Supp. at 1080.

The court concluded that, in light of the number of available military lawyers in Hawaii, counsel should have been provided to each accused and granted the writ of habeas corpus as to Petitioners Robinson and Crosby, the only petitioners who had not completed their sentences when the court ruled. As to the other petitioners, the court ordered the records of their convictions expunged.

II. The Summary Court-Martial System

The UCMJ provides for three types of courts-martial: general, special and summary. A general court martial has jurisdiction, subject to constitutional limitations, over all persons subject to the UCMJ for any offense thereunder.

The special court-martial has jurisdiction concurrent with the general court-martial as to all non-capital offenses. However, the special court does not have power to sentence the accused to dismissal from the service, to a dishonorable discharge, or to confinement for more than six months.

The jurisdiction of summary courts-martial is set out in Article 20 of the UCMJ, 10 U.S.C. § 820, as follows:

Subject to section 817 of this title (article 17) summary courts-martial have jurisdiction to try persons subject to this chapter, except officers, cadets, aviation cadets, and midshipmen, for any noncapital offense made punishable by this chapter. No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate. Summary courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, hard labor without confinement for more than 45 days, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month’s pay.

The function of a summary court-martial is to dispense justice and administer discipline promptly for relatively minor offenses under simplified procedures. MCM, Para. 79a (1969).

The accused before a special or general court-martial is ordinarily entitled to full assistance of counsel. A summary court-martial, however, has no adversary counsel on either side. The court consists of one commissioned officer (generally a non-lawyer) who acts as judge, fact finder, prosecutor and defense counsel.

The record of trial of every summary court-martial is first reviewed by the officer who convened the court. Thereafter, it must be reviewed by a judge advocate, an officer generally on the staff of the supervisory authority. An additional appeal may then be made to the Judge Advocate General of the appropriate service.

III. The Applicability of the Sixth Amendment Right to Counsel to Trials by Courts-Martial

Some courts and scholars, notably the United States Court of Military Appeals and its Chief Judge, Robert E. Quinn, have taken a broad view of the applicability of the provisions of the Bill of Rights to members of the military service. See United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967); United States v. Jacoby, 11 USCMA 428, 29 CMR 244 (1960) (“[T]he protections of the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces.”); Quinn, The United States Court of Military Appeals and Military Due Process, 35 St. John’s L.Rev. 225 (1961); Quinn, United States Court of Military Appeals and Individual Rights in the Military Service, 35 Minn.L.Rev. 49 (1960). In United States v. Culp, 14 USCMA 199, 33 CMR 411 (1963) two judges of the three-judge COMA held that the Sixth Amendment right to counsel applies to special courts-martial, but that the right was not abridged in that case. There is little textual or historical support, however, for the conclusion that the framers of the Bill of Rights intended the Sixth Amendment right to counsel to apply to trials before courts-martial.

The Sixth Amendment was not intended to revolutionize criminal procedure. All rights secured by it were available to the accused at common law or under modifications to the common law adopted in the American colonies. The Sixth Amendment’s impact was as á “full and distinct recognition” of the rights secured to an accused at common law. Callan v. Wilson, 127 U.S. 540, 549, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). Thus, the Amendment secures to the accused the right to jury trial for all “serious offenses” because that was the extent of the colonial right to jury trial. District of Columbia v. Clawans, 300 U. S. 617, 624, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Callan v. Wilson, supra. See Frankfurter & Corcoran, Petty Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926). But see Kaye, Petty Offenders Have No Peers!, 26 U.Chi.L.Rev. 245 (1959). In addition, the Sixth Amendment guarantees an accused counsel for his defense in all civilian criminal prosecutions, serious or petty (at least to the extent a sentence of confinement is imposed. Argersinger, supra, at 37 of 407 U.S., 92 S.Ct. 2006), because that was the extent of the right of counsel at common law, as modified in the colonies. Argersinger, supra, Powell v. Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 77 L.Ed. 158 (1932). But in light of the 18th century practice in America, it cannot be said that the Amendment was intended to be wholly applicable to defendants before military courts. For example, the Amendment’s guarantee of the right to jury trial was not intended to apply to military courts. Ex parte Quirin, 317 U.S. 1, 45, 63 S.Ct. 1, 87 L.Ed. 3 (1942). By the same token the Amendment was not intended to extend the scope of the accused’s right to counsel before military courts beyond what it had theretofore been.

It has been clearly shown that in the late 18th century the right of an accused before a court-martial to have assistance of counsel for his defense was severely limited. See Wiener, Courts Martial and the Bill of Rights: The Original Practice I, 72 Harv.L.Rev. 1 (1958). Certainly there was no right to have personal, adversary counsel of the sort required in state and federal courts by Argersinger. We cannot improve on Colonel Wiener’s detailed historical analysis, and we need say only that we agree with his conclusion that the Sixth Amendment was not intended to apply to trials before courts-martial.

IV. The extent to which counsel is required by the Due Process Clause of the Fifth Amendment

Our conclusion that the Sixth Amendment does not compel the result reached by the district court does not end the inquiry. Courts-martial are required to afford an accused due process of law. Burns v. Wilson, 346 U.S. 137, 142-143, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). Due process is an evolving concept and what is due process at one point in history may not be so regarded as civilization develops.

We have two recent guideposts from the Supreme Court on the extent due process required counsel in situations where confinement may be imposed but the Sixth Amendment does not apply. See Gagnon v. Searpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In Gault the Court held that a juvenile charged with delinquency and subject to commitment to an institution was entitled to have counsel appointed to represent him.

“A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’ ” 387 U.S. at 36, 87 S.Ct. at 1448. (footnotes omitted.)

In Gagnon the court held that personal, adversary counsel was not a constitutional requirement in every parole or probation revocation proceeding. Specifically, the court held:

“[T]he decision as to the need for counsel must be made on a ease-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.” 411 U.S. 778 at 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656.

In our view the present case is better analogized to Gagnon than to Gault. In the first place, servicemen before summary courts-martial are adults, not juveniles. Underlying Gault is the assumption that uncounseled juvenile defendants would ordinarily have great difficulty presenting whatever defense or mitigating circumstances they might have. That assumption does not apply in this ease.

Second, a summary court-martial is disciplinary in nature and less of an adversary, accusatory proceeding than were the juvenile court hearings considered in Gault. It is more like the parole revocation proceeding in the sense that certain informality and flexibility which may be desirable in some eases would be lost by requiring adversary counsel in all cases.

Finally, although that was not a factor in either Gault or Gagnon, we note that the penalties which can be imposed by a summary court-martial are quite restricted. At least any resulting injustice would not be of the same significance as those arising from juvenile or parole revocation proceedings.

Gagnon suggests the appropriate due process standard. In Gagnon the Court held that a probationer or parolee has a presumptive right to counsel at a probation or parole revocation hearing

“in cases where, after being informed of his right to counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.” 411 U. S. at 790, 93 S.Ct. at 1764.

The exigencies of military discipline and the need for flexibility require a modification of this standard for summary courts martial. Counsel should be required only where the issues are of sufficient complexity to require his assistance, even if the defendant raises a colorable claim that he has not committed the offense. Therefore, we hold that counsel must be appointed for the accused before a summary court-martial only where the accused makes a request based on a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances. Moreover, even when such a request is made, if, due to the exigencies of military operations, qualified counsel is not reasonably available, the military may nevertheless proceed if the rights of the accused will not be unduly prejudiced. But no such difficulties are present in this case.

In the present case five of the petitioners pleaded guilty to the charges of which they were convicted, four after consulting with military counsel. The burden will be upon them to convince the district court that the assistance of counsel at their trial was necessary in order for them properly to present some defense or mitigating circumstances.

As to petitioner Robinson, who pleaded not guilty and protested his innocence, the situation may be quite different. The government should have the burden of showing that his defense was not “colorable” or was in fact one that he could present adequately by himself. Whether it has met or can meet this burden must be a question for the district court to resolve in the present case, and for the military justice system itself to resolve in future cases, subject to limited judicial review in habeas proceedings under the “fully and fairly” test. Burns v. Wilson, supra.

V. Conclusion

Our conclusion that the Constitution does not require appointed counsel in every summary court-martial case should not be read as an unqualified endorsement of the practice which limits the availability of such counsel. While the Navy argues with some vigor that naval discipline will suffer severely if appointed counsel are required, there is scant support for this in the record. The Army and Air Force already provide counsel to all accused before summary courts-martial and the Navy allows private retained counsel to participate in such proceedings.

The Navy suggests that the effectiveness of a summary court-martial as a tool for preserving discipline and order will be undermined by the participation of counsel. If so, this must already be true as to those defendants who can afford retained counsel. Cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Justice Powell opined in Argersinger v. Hamlin, supra, at 63 of 407 U.S., 92 S.Ct. 2006 (concurring opinion), that the case-by-case analysis avoided the equal protection problem suggested by Douglas v. California. Perhaps this is true. In any event the equal protection ground is not urged before us.

Whether the case-by-case rule will prove administratively feasible is another matter, and one for the Navy to resolve in the first instance. The case-by-case approach established in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942) could not endure, but summary courts-martial are not felony trials. More experience over a period of time may supply the answer.

The judgment of the district court is reversed. As to all petitioners and in-tervenors, except Robinson, the petitions should be denied. The district court should conduct further proceedings as to Robinson, consistent with this opinion.

TRASK, Circuit Judge

(concurring and dissenting) :

I concur with the majority except as to that portion which would require counsel to be provided to the defendant under certain circumstances in order to meet due process requirements.

It appears clear to me that the protections accorded to the defendant in a summary court-martial as outlined in footnote 8 of the majority opinion satisfy the demands of basic fairness inherent in constitutional due process as applied to a code of military justice. A reading of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), does not persuade me to the contrary. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), was decided in an entirely different context and does not control a resolution of the problem here.

      . In Argersinger the Supreme Court held that the Sixth and Fourteenth Amendments require the states to provide appointed counsel to all defendants upon whom a sentence of imprisonment is imposed. Argersinger was the culmination of 40 years of case law interpreting and applying the Sixth Amendment’s guarantee of counsel in “all criminal prosecutions.” See Gideon v. Wainwriglit, 372 U.S. 335, 83 S.Ct. 702, 9 L.Ed.2d 799 (1963) (appointed counsel required in all state felony prosecutions) ; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (appointed counsel required in all federal prosecutions) ; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (appointed counsel required in a capital case). See also Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) ; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) ; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) ; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811 (1963).
      The reasons which compelled the Supreme Court in Argersinger to conclude that appointed counsel was required in any criminal prosecution which resulted in a sentence of confinement were partly historical and partly in the nature of policy.
      In the first place, history lent little support to the argument of the State of Florida that the Sixth Amendment required the presence of counsel only when the defendant was accused of a serious felony. At common law “persons accused of misdemeanors were entitled to the full assistance of counsel.” Powell v. Alabama, supra, at 60 of 287 U.S., at 61 of 53 S.Ct.
      But a person charged with treason or a felony “was denied the aid of counsel, except in respect of legal questions which [he] himself might suggest.” Id. While this latter rule had been changed as to treason after the revolution of 1688, it remained the rule in England at the time of the American Revolution. The great accomplishment of the Sixth Amendment was the adoption of the practice followed in most (if not all) of the colonies of allowing the assistance of counsel to the accused in felony as well as misdemeanor cases. And the decision in Johnson v. Zerbst, supra, settled the rule that “assistance of counsel” meant assistance of appointed counsel if the accused could not afford to retain a lawyer.
      Long prior to Argersinger it was held that the Sixth Amendment right to counsel applied to misdemeanors as well as serious offenses. See Evans v. Rives, 75 U.S.App.D. C. 242, 126 F.2d 633 (1942). At issue in Powell, Gideon and Argersinger was the extent to which the Sixth Amendment guarantees were made applicable to the states by the Fourteenth Amendment. But in this context the Argersinger result (that the Sixth Amendment right to counsel was fully applicable to the states) was probably inevitable after Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
      An historical analysis was not the only component of the Argersinger decision. As the court noted:
      “The requirement of counsel may well be necessary for a fair trial even in a petty offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.” 407 U.S. at 33, 92. S.Ct. at 2010.

      . The government argues that the appellants’ claim should be dismissed for failure to exhaust the administrative remedies available under UCMJ Article 69 (review by the office of The Judge Advocate General)' and UCMJ Article 138 (review by the officer exercising general court-martial jurisdiction). The government’s argument is rejected. One of the policies underlying the exhaustion of administrative remedies doctrine is to allow administrative agencies an opportunity, prior to judicial review, to apply their discretion and expertise to problems within their competence. But where, as here, the issue is purely legal, this policy is not applicable. MeKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). As in MeKart, this case involves criminal or quasi-criminal penalties, relief from which would be delayed by the application of the exhaustion doctrine. Where such a situation exists, administrative remedies need not be exhausted prior to review of a purely legal issue. We explicitly refrain from determining the applicability of MeKart to cases in which criminal sanctions are not involved.

      . UCMJ, Art. 16, 10 U.S.C. § 816.

      . See O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) ; McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960) ; Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1960) ; Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960) ; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) ; United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).

      . UCMJ, Art. 18, 10 U.S.C. § 818.

      . UCMJ, Art. 19, 10 U.S.C. § 819.

      . Id.

        . UCMJ, Arts. 27, 38, 10 U.S.C., §§ 827, 838.

      . The mandate of the summary court officer is found in MCM, Para. 79a (1969) :
      “The summary court will thoroughly and impartially inquire into both sides of the matter and will assure that the interests of both the Government and the accused are safeguarded.”
      More specifically, the summary court officer must inform the accused of the charges against him, the name of the officer who convened the court, and the identity of the accuser. MOM, Para. 79d(l). The summary court officer has authority to subpoena witnesses and must call witnesses desired by the accused. MCM, Para. 79b and d(3). He must advise the accused of his right to remain silent. MCM, Para. 79d(l) and (3). Should the accused elect to plead guilty to any specification or charge, the officer must explain to him the elements of the offense to which his guilty plea relates, explain that the guilty plea admits without further proof every element charged, and advise the accused of the maximum sentence which can be imposed upon conviction. The officer may not accept the plea unless, after questioning the accused, he is satisfied “not only that the accused understands the meaning and effect of his plea and admits the allegations . . . but also that he is voluntarily pleading guilty because he is convinced that he is in fact .guilty.” MCM, Para. 79d(2) ; United States v. Care, 18 USCMA 535, 40 CMR 247 (1969).
      The accused is accorded the right to be informed of and to confront the witnesses against him. MCM, Para. 79d(l) and (3). He may cross-examine adverse witnesses or have the summary court officer cross-examine for him. MCM, Para. 79(1(3). He may present evidence on his own behalf and is entitled to have the court assist him in every possible way. Id. He may testify on his own behalf. MCM, Para. 79d(l) and (3). After findings of guilt are announced, the accused may present evidence in extenuation and mitigation, with the assistance of the court-martial officer if the accused desires. MCM, Para. 79d(4). Finally, the accused may make either a sworn or unsworn statement in extenuation and mitigation. Id.

      . UCMJ, Art. 60, 10 U.S.C. § 860.

      . UCMJ, Art. 65, 10 U.S.C. § 865; MCM, Para. 94.

      . UCMJ, Art. 69, 10 U.S.C. § 869.

      . At issue in Culp was the constitutionality of former Article 27(c), UCMJ, 10 U.S.C. § 827(c). The article, as it then read, permitted the convening authority to detail non-lawyer counsel for the accused in a special court-martial if the prosecution did not have lawyer counsel.
      All three judges of COMA agreed that appointment of non-lawyer counsel did not violate the accused’s constitutional rights. Judge Kilday felt that the Sixth Amendment right to counsel did not apply to the military. Judges Quinn and Ferguson were of the opinion that while the Amendment did apply to the military, the article was constitutional because Congress had the power to set the qualifications of counsel before courts-martial. See also Angle v. Laird, 429 F.2d 892 (10th Cir. 1970) ; Harris v. Cic-cone, 417 F.2d 479 (8th Cir. 1969) ; Kennedy v. Commandant, 377 F.2d 339 (10th Cir. 1967) ; LeBallister v. Warden, 247 F.Supp. 349 (D.Kan.1965). But see Application of Stapley, 246 F.Supp. 316 (D.Utali 1965).
      COMA currently has before it for decision a case which may present the identical issue before us. In re McLean, Misc.Dkt.No.73-5.

      . See note 1, supra.

      . “Serious offenses” are now considered to be those punishable by imprisonment for greater than six months. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).

      . Burns v. Wilson held that “when a military decision had dealt fully and fairly with an allegation raised in [the] application [for a writ of habeas corpus], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” 346 U.S. at 142, 73 S.Ct. at 1049.
      This court has considered the “fully and fairly” test in Sunday v. Madigan, 301 F.2d 871 (1962), and Mitchell v. Swope, 224 F.2d 365 (1955). Cf. Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969) ; Kennedy v. Commandant, 377 F.2d 339 (10th Cir. 1967). See, generally, Moyer, Justice and the Military 1230-1262 (1972).

      . Cf. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) ; Boll-ing v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).


author: HEANEY, Circuit Judge.

text:
    ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Plaintiff-Appellant, v. ARMCO STEEL CORPORATION and Pullman Incorporated, Defendants-Appellees. PULLMAN INCORPORATED, Third-Party Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, Third-Party Defendant-Appellee.
    Nos. 73-1397, 73-1405.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1973.
    Decided Jan. 4, 1974.
    Rehearing Denied Feb. 6,1974.

      Charles J. O’Laughlin, Chicago, 111., for St. Louis-San Francisco Ry. Co.
    R. E. Keaney, St. Louis, Mo., for Armco Steel Corp.
    Ralph C. Kleinschmidt, St. Louis, Mo., for Pullman, Inc.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HEANEY, Circuit Judges.
   HEANEY, Circuit Judge.

The St. Louis-San Francisco Railway Company appeals from a final judgment for the defendants in a product liability case in the United States District Court for the Eastern District of Missouri. The defendant, Pullman Incorporated, also appeals from the trial court’s adverse ruling on its third-party action for attorneys’ fees and expenses against Maryland Casualty Company.

On December 19, 1969, a Frisco train was derailed with a resulting loss to Frisco of $745,000. The derailment was caused by the failure of a wheel manufactured and sold by Armco Steel Company to Pullman in 1966. Pullman, in turn, mounted the wheel on a railroad car and sold the car to Trailer Train Company. That corporation leased the car to various railroads, including Frisco.

Frisco brought a diversity action for damages against Armco and Pullman. It alleged that the wheel that caused the derailment was a defective and unreasonably dangerous one. Pullman cross-claimed, seeking indemnity against Arm-co in the event judgment was entered against it. Pullman, in a third-party action, sought to be declared an insured under Armco’s liability insurance policy issued by Maryland and, thus, that it was entitled to a defense by that company.

The case was tried to the court on the theory that Missouri law governed. The court held that Missouri had adopted the theory of strict liability in tort as set forth in the Restatement (Second) of Torts § 402A (1965) in Keener v. Dayton Electric Manufacturing Co., 445 S. W.2d 362 (Mo.1969), and that Frisco was not entitled to recover under that theory because the wheel was not sold in a “defective condition unreasonably dangerous to the user or consumer * * It dismissed the indemnity cross-claim for mootness and held that Pullman could not recover its attorneys’ fees and expenses under Armco’s policy' with Maryland because the policy excluded coverage to organizations otherwise covered who changed the form of the product or who performed installations in connection with the product.

The Frisco Claim for Damages.

The District Court found:

(1) The American Association of Railroads (AAR) establishes the specifications that railroad wheels must meet. These specifications are adopted by a vote of the members of the AAR, including Frisco.

(2) The wheel was manufactured in accordance with AAR specifications. It is normal for as-forged, hot-rolled wheels to develop scale pits on their surfaces during the manufacturing process. The pits may be removed by grinding or shot peening. The pits increase the possibility of metal fatigue. The existence of fatigue cracks in railroad wheels is not unusual. A manual of the AAR requires that a wheel showing signs of metal fatigue be removed from service.

(3) The wheel was inspected before sale, at the Armco factory, for compliance with AAR specifications by Arm-co’s inspectors and other inspectors employed by the Pennsylvania Railroad and working under contract for Trailer Train. It was found to meet the specifications.

(4) Pullman smooth-bored a preexisting hole in the center of the wheel and placed the wheel on the axle of the railroad car which was delivered to Trailer Train.

(5) The railroad car was used by various railroads throughout the United States from May 13, 1966, until its derailment on December 19, 1969. It was inspected at each interchange by the railroad receiving the car. The inspection of the car included an inspection of the wheels.

(6) The wheel and its mate were subjected to unusual stress.

(7) The wheel failed as a result of metal fatigue.

(8) The metal fatigue occurred at the cracks in the wheel which were in the vicinity of two of the scale pits on the wheel.

(9) Frisco fully contemplated, all of the characteristics of the wheel.

The court concluded:

An essential requirement of a strict liability case is proof that the plaintiff was caused harm by reason of a product which when sold was in a defective condition unreasonably dangerous to the user or consumer or to his property. Within the concept of strict liability, a defective condition is one not contemplated by the user which will be dangerous to him. By “unreasonably dangerous” is meant that the product must be dangerous to an extent beyond that contemplated by those having the ordinary knowledge of the community as to the characteristics of the product. Railroads, in-eluding, of course, the plaintiff railroad, are the sole ultimate purchasers and users of railroad cars and wheels and the Court finds that Frisco fully contemplated all of the characteristics of the wheel in question and that the wheel was neither defective nor unreasonably dangerous.

Frisco argues on appeal that the trial court’s finding that the wheel complied with AAR specifications was clearly erroneous. It contends, in the alternative, that the AAR standards were properly considered by the court in determining whether the wheel was unreasonably dangerous but should not have been determinative of that question. It contends that the court was required to go beyond the specifications and consider all of the evidence in determining whether the wheel was an unreasonably dangerous one; and that had the court done so, it would have found that the wheel was unreasonably dangerous as a matter of law.

The trial court’s finding that the wheel complied with AAR specifications was not clearly erroneous. Indeed, it was supported by substantial evidence. Numerous witnesses, including those responsible for the inspection program and independent experts, testified that the wheel was not excessively pitted and that it met the specifications in every respect. While there was expert testimony to the contrary, the trial court — as the fact-finder — had the right to reject the contrary testimony as . not persuasive. See, St. Louis Typographical Union No. 8 v. Herald Company, 402 F.2d 553, 557 (8th Cir. 1968).

We read the trial court’s findings and conclusions more broadly than Frisco. It did not rest its judgment for the defendants solely on the ground that the wheel met AAR specifications. It concluded more generally that the wheel was not defective or unreasonably dangerous. This finding is consistent with the position taken in the Restatement (Second) of Torts § 402A (1965) and is supported by the record.

The parties agree that § 402A correctly states the Missouri law of strict liability in tort. That section, inter alia, requires that a product be “sold in a defective condition unreasonably dangerous to the user * * * or his property” in order for strict liability to apply. Comment g defines a “defective condition” as a “condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him.” Id. at 351. Comment i, in turn, provides that to be “unreasonably dangerous,” “[t]he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Id. at 352.

Frisco maintains that if the trial court ruled that the wheel was not defective or unreasonably dangerous, it did so solely because it assumed that there could never be proof of defectiveness or unreasonable danger where the alleged defect was contemplated by the ultimate user. They point out that this position has been rejected by the courts in Washington and California. Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 476 P.2d 713 (1970); Pike v. Frank G. Hough Company, 2 Cal.3d 465, 85 Cal. Rptr. 629, 467 P.2d 229 (1970). Those cases are clearly distinguishable from the instant case. The courts there were concerned with the “obviousness” of danger in finished products which had been sold to consumers who had not participated in designing the product. The California Supreme Court ruled in Pike that the trial court erred in nonsuiting the plaintiffs because the plaintiffs’ evidence was sufficient to support a jury verdict in their favor. The Washington Court of Appeals held in Palmer (a negligence case) that the issue of the plaintiff’s contributory negligence was for the jury to decide.

Frisco is not in the position of an unwary railway passenger. It is a company actively participating in the development of AAR specifications.

Moreover, we do not believe that the court operated under the suggested assumption. It was, however, convinced that the wheel was not defective or unreasonably dangerous. Railroad wheels do not last forever. Frisco’s own employees testified that they were aware that wheels crack because of metal fatigue and for that reason, they regularly inspect the wheels and replace those found to be cracked. The evidence strongly supports the court’s finding that the wheel was a normal one, and that it was not excessively pitted. Frisco had the burden of proving the wheel was defective and unreasonably dangerous. Under the circumstances present here, we do not believe the court erred in concluding that Frisco had failed to meet that burden.

Frisco is, in effect, urging this Court to go beyond the doctrine of strict liability and hold that Armco is an insurer and, thus, responsible in damages to a railway company whenever one of its wheels fails. We respond negatively to the urging.

Pullman’s Third-Party Claim Against Maryland.

Pullman contends that it is covered by a liability insurance policy issued by Maryland to Armco and that it is entitled to recover attorneys’ fees and expenses. Maryland concedes that Pullman may, under certain circumstances, be an insured “organization” under the policy, but argues that it is not covered here because of the following exclusions:

1. The insurance does not apply to any person or organization who:
(а) Changes the form of such goods or products out of which the accident arises;
-X- 4f -X- -X- * *
(c) performs any demonstration, installation, servicing or repair operations, out of which the accident arises, in connection with such goods or products away from the premises of such person or organization. (Emphasis added.)

The District Court’s findings of fact on this point were sketchy. It found that:

Pullman smooth bored a hole in the wheel in question and installed it on a [railway] car. [2] The accident occurred away from the premises of the party claiming coverage.

The court concluded that “[t]he amount of expenses and attorneys’ fees incurred are excluded under the terms of the policy.”

Apparently, the court felt that Pullman was barred from receiving fees and expenses incurred by it in defending the action because Pullman had enlarged a hole in the wheel and installed the wheel on a railroad ear.

We disagree. Pullman is not barred from recovering its defense costs from Maryland unless the modification and installation performed by Pullman caused or contributed to the accident. There is no evidence that they did so. To hold to the contrary would render the phrase “out of which the accident arises” meaningless.

[б] It has been stated that a contract of insurance, being the law between the parties, should have every stipulation construed as written. It being presumed that every condition was intended to accomplish some purpose, it is not to be considered that idle provisions were inserted. Each word is deemed to have some meaning, and none should be assumed to be superfluous. All portions of a policy should be considered in construing it. Accordingly, a court will attempt to give meaning and effect, if possible, to every word and phrase in the contract in determining the meaning thereof.-

13 J. Appleman, Insurance Law and Practice § 7383 (1943).

It is reasonable to assume that the phrase “out of which the accident arises” within exclusion 1(c) means that when the accident arises out of the demonstration, installation, servicing or repair operation of the insurance organization, the insurance does not apply. If the accident does not arise out of those activities and if no other provision excludes coverage, the insurance does apply. Any other construction would be strained.

The construction of an insurance policy should be a natural and reasonable one, fairly construed to effectuate its purpose, and viewed in the light of common sense so as not to bring about an absurd result. * * *

Appleman, supra, § 7386.

Maryland could have easily*and clearly limited its liability in a manner consistent with the trial court’s construction of the exclusion provisions if that was indeed its intention. It did not do so. Moreover,

[i]t has been almost the unanimous holding of all courts that insurance contracts must be liberally construed in favor of a policyholder or beneficiary thereof, wherever possible, and strictly construed against the insurer in order to afford the protection which the insured was endeavoring to secure when he applied for the insurance. (Footnote omitted.)

Appleman, supra, § 7401.

Maryland argues further that if the exclusions do not apply to Pullman, its policy is excess over an umbrella policy issued to Pullman by Lloyds of London and “is unenforceable by Pullman until Pullman exhausts Lloyds’ obligation to Pullman.” Because the trial court found that the exclusion provisions of the Maryland policy barred recovery, it has not had an opportunity to rule on this issue. We, therefore, remand to the District Court for consideration of this issue. On such remand, the District Court shall also determine, if necessary, whether the amount of attorneys’ fees and expenses claimed by Pullman is appropriate.

Affirmed in part, reversed in part, and remanded for further consideration. Costs on appeal will be taxed two-thirds to Frisco and one-third to Maryland.

      . Trailer Train is a corporation which is owned by and leases railroad cars to a number of railroads. Frisco owns approximately two and one-half percent of Trailer Train’s outstanding stock.

      . The trial court does not appear to have placed much reliance on this finding in reaching its conclusions. We, therefore, do not rest our opinion on the fact that this finding is supported by the record.

      . § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in.the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . We need not discuss this second finding. It has no bearing on the resolution of the issues before us.

      . Apparently, the trial court and the parties do not believe that the choice of law is crucial to the resolution of the “insurance” issues. The court, in its findings of fact and conclusions of law, did not indicate what state’s law applies and the parties have not raised the question on appeal. We, therefore, rely on what appears to be the law applicable in most states.