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officer who told him he was going to place him in confinement. The accused requested permission to pick up his laundry and make two phone calls. The commanding officer then placed the accused in the custody of a guard who was instructed to deliver the accused to the guardhouse but to allow him to stop on the way and pick up his laundry and make the phone calls. While en route to the guardhouse the accused escaped. Held: The evidence establishes that at the time the accused was alleged to have escaped from custody his status of being in custody had been terminated and supplanted by a status of confinement prior to trial. The commanding officer was the proper authority to determine whether probable cause for restraint existed and to terminate the custody status of the accused by either releasing him or ordering him into restriction, arrest or confinement. The commanding officer ordered confinement and the accused's custody status thereupon ceased. The fact that the accused was permitted to pick up his laundry and make phone calls was not inconsistent with a confinement status. The offenses of escape from custody and escape from confinement are separate and distinct offenses and a fatal variance exists where one is pleaded and the other proven. Thus the evidence herein is insufficient to support the findings of guilty of escape from custody. (Citing ACM S-1638, West, 1 CMR 770; ACM S-2517, Evans, 3 CMR 783; ACM 5791, Conner, 7 CMR 477; ACM S-6036, Siefer, 10 CMR 608; CM 350130, Cater, 3 CMR 190; CM 352929, Barber, 4 CMR 405; contra CM 356107, Wildman, 6 CMR 406.) ACM 9855, Hunker (1955) 18 CMR 703.

§ 25.1. Generally.

§ 25. Arrest and Confinement

The accused was found guilty of attempted escape from confinement. The prosecution presented documentary evidence showing that upon his return from absence without leave the accused was placed in confinement by authorization of the officer of the day, a chief warrant officer. A guard testified as to the details of the alleged attempted escape. At the trial the defense raised no issue as to the authority of the warrant officer to order the accused into confinement, nor was any evidence introduced by the defense touching on the merits of the attempted escape. The confinement order on its face disclosed no lack of delegated authority in the warrant officer to impose confinement upon enlisted personnel. Held: The prosecution having established a prima facie case of the confinement of the accused, which evidence was buttressed by the presumption of legality of an officially imposed confinement, it was incumbent upon the defense to come forward with evidence indicating that the accused's confinement was illegal in order to rebut this presumption. The defense having presented no evidence to rebut the presumption of legality, said presumption prevails and on the basis of the evidence and the unrebutted presumption of legality the findings of guilty must be sustained. (Citing ACM S-2302, Whitaker, 5 CMR 539; U. S. v. Masusock (No. 15), 1 USCMA 32, 1 CMR 32; U. S. v. Clements (No. 82), 1 USCMA 39, 1 CMR 39; ACM 8310, Wharton, 15 CMR 808 and federal cases cited therein and other cases and authorities.)

Held also: By virtue of Congressional enactment and Presidential pronouncement applicable to the Air Force, warrant officers are vested with all the authority possessed by commissioned officers when assigned duties normally performed by commissioned officers. (Citing Act of 21 August 1941, ch 384, sec 4, 55 Stat 653; Act of 26 July 1947, ch 343, Title II, sec 205(a), 61 Stat 501, 10 USC 593; Act of 26 July 1947, ch 343, Title III, sec 305, 61 Stat 508, 5 USC 171; Act of 19 Sept 1951, ch 407, Title IV, sec 403, 65 Stat 333, 10 USC 1802; EO 8938, 10 Nov 1941.) It is a matter of common knowledge that officers of the day are from time to time called upon to order into confinement enlisted persons who have committed offenses. It is also a matter of common knowledge that warrant officers are assigned to the duties of officer of the day. Commissioned officers have authority to order enlisted men into confinement. Accordingly, consistent with the spirit of the Congressional and Presidential pronouncements mentioned above, warrant officers, when performing the duties of officer of the day possess authority to order enlisted persons into confinement. Thus the confinement of the accused herein was legal. (Citing FM 26-5, Interior Guard Duty, Dept of the Army, Mar 1952, pp 5, 6; U. S. v. Jones (No. 288), 2 USCMA 80, 6 CMR 80; UCMJ, Art 9(b); MCM, 1951, par 21a (2); U. S. v. Davis (No. 4187), 4 USCMA 577, 16 CMR 151; U. S. v. Swanson (No. 2570), 3 USCMA 671, 14 CMR 89 and other cases.) ACM 9393, Jones (1954) 17 CMR 904.

§ 25.11. Arrest or confinement prior to filing of charges.

See United States v. Moore, EVID § 127.8.

ARMY

(Organization and Branches)

I. IN GENERAL

§ 1. Generally

§ 1.91. Participation in private associations.

The provisions of AR 1-210, 14 December 1949, prohibit the acceptance of membership in the United Community Services by either The Surgeon General or Walter Reed Army Hospital as agencies of the United States Government. Although membership in the United Community Services would not involve expenditure of public funds, there being no fees or dues, and would not compromise United States sovereignty, all actions being merely advisory in nature, membership would involve the use of the name of the United States government by a private corporation, implying the sponsorship of such organization by the government, without authority of Congress and there is no advantage to the government, financial or otherwise, to be gained by membership as distinguished from nonmembership liason participation by Department of the Army agencies which would be authorized by the mentioned regulations. (Citing JAGT 1947/9333, 26 Nov 1947; JAGT 1949/8192, 16 Jan 1950; JAGT 1951/6911, 8 Nov 1951; cf. JAGT 1952/7405, 23 Sept 1952; 19 Comp Gen 937; 24 Comp Gen 814; 31 Comp Gen 398.) JAGA 1954/4529. 21 May 1954.

VII. USE OF TROOPS

§ 81. In General

§ 81.5. Execution or enforcement of laws, generally.

The use of military personnel to supplement civilian police and assist them in connection with the handling of crowds along the route of an American Legion parade is prohibited by the Posse Comitatus Act (sec 15, Act of 18 June 1878 (20 Stat 152), as amended (10 USC 15)). (Citing JAGA 1952/4810, 26 May 1952; 1952.) JAGA 1954/6426. 16 July 1954.

JAGA 1952/5400, 26 Jun

10 USC 15, relative to employment of the Army of the United States as a posse comitatus, as inapplicable to naval personnel, see Op JAGN 1954/213, LOD § 15.1.

§ 11.1. Generally.

ARSON

§ 11. Charges and Specifications

The accused was charged with attempted arson under a specification alleging that he did, at a specified place, on a or about a certain date, attempt to set fire to an automobile of a value in excess of fifty dollars, the property of a certain named person. Held: In order to state the offense of arson it must be alleged that the acts were done "willfully and maliciously" or the equivalent thereof. The same is true of an attempt to commit arson. The specification therefore does not state the offense of attempted simple arson. (Citing UCMJ, Art 126; MCM, 1951, par 205b and Appendix 6c, Model Spec, No. 97; Comm. v. Cooper, 264 Mass 378, 162 NE 733; State v. Massey, 97 NC 465, 2 SE 445; State v. Morgan, 98 NC 641, 3 SE 927; D'Allessandro v. Tippis, 101 Fla 1275, 133 So 332; Reed v. State, 171 Mass 65, 156 So 650; State v. Matschler, 55 ND 120, 212 NW 832; State v. Murphy, 134 Or 63, 290 P 1096; State v. McCoy, 162 Mo 383, 62 SW 991; UCMJ, Art 80; MCM, 1951, par 159; ACM 886, Emerson, 16 CMR 690.) ACM 9811, Grenier (1955) 18 CMR 720. [See 4 Am Jur, Arson § 9.]

III. ELEMENTS OF OFFENSE; JUSTIFICATION AND DEFENSES.

§ 49. Self-Defense.

IV. PROSECUTION.

A. IN GENERAL.

§ 61. Charges and Specifications.

§ 65. Assault on Superior, on Noncommissioned, etc.

§ 87. Weight and Sufficiency; Presumptions and Inferences. § 89. Aggravated Assaults.

I. IN GENERAL

§ 9. Included Offenses

§ 9.7. Disrespectful conduct.

Disrespect toward a superior officer as lesser included offense of offering violence toward such officer, see ACM 9632, Luckey, infra § 65.3.

II. PARTICULAR KINDS OF ASSAULT

§ 15.1. Generally.

§ 15. On Superior Officer

The accused was convicted of striking a superior officer who was then in the execution of his office. The offense was allegedly committed while both the accused and the officer were in the status of prisoners of war of the communist forces in North Korea. Held: The evidence being sufficient to prove the assault and battery upon the officer, the accused was properly found guilty of the offense charged since an American officer may not be deprived of his office by any act of an enemy power while he is detained by such power as a prisoner of war even though he may be deprived of the means and opportunity to exercise his command or authority. As a commissioned officer of the United States Army, the officer, whether the senior American officer present in the particular camp or not, and although deprived of many of the functions and prerogatives of