bers of the court participated in the questioning. After the accused's examination was completed, the challenged member was examined and the court voted not to sustain the challenge. Held: Whether to hold the disposition of the challenge in abeyance to permit the accused to conclude his testimony or to interrupt the flow of testimony to dispose of the challenge was a matter within the sound discretion of the law officer in maintaining an orderly procedure in the presentation of the evidence. His action was not arbitrary or capricious nor is there any basis for a claim of prejudice to the accused. ACM 7761, Schreiber (1954) 16 CMR 639, affd U. S. v. Schrieber, supra this section. § 73.1. Generally. § 73. Peremptory Challenges At the proper point in the trial procedure, the trial counsel stated he had no challenges for cause, nor did he have any peremptory challenge. The defense brought out that one of the members of the court had signed an indorsement forwarding the charges as assistant adjutant to the commander but the defense did not challenge this member when he stated he signed merely as a formality and that he was not familiar with the case. At this point of the trial there were nine court members. The defense then reduced the number to seven by the exercise of peremptory challenges on behalf of two of the three accused. The trial counsel then stated he wished to challenge the officer whose prior connection with the case had been disclosed. The defense objected on the ground that defense had the right to exercise their peremptory challenges after the prosecution and that the accused were entitled to the numerical benefit that occurred based on the numbers necessary for conviction. However, the trial counsel was permitted to exercise his peremptory challenge reducing the court to six members. The defense then exercised the peremptory challenge on behalf of the third accused reducing the court to five. Held: As a result of the unique rule in courts-martial that if, in the computation of the number of votes required to reach a decision, a fraction results, such fraction must be counted as one, the numerical composition of the court may be either favorable or unfavorable to either side. However, neither side has any absolute right to maintain a particular numerical composition of the court so long as the court does not fall below its statutory minimum. (See ACM S-45, McCaffity (BR), 2 CMR(AF) 25.) While there is nothing in either the Code or the Manual expressly prohibiting the trial counsel from exercising a peremptory challenge after defense counsel has used his challenges, nevertheless, ordinarily the challenges of the trial counsel will be disposed of before those of the accused are asserted. (Citing MCM, 1951, pars 62a and 62h; Trial Guide Appx 8a, MCM, 1951, pp 505-507.) Whether a peremptory challenge may be exercised at a time other than that prescribed by the trial guide, or, having once been waived it may be exercised at a later date, is a matter which lies within the sound discretion of the law officer. The record does not show that the trial counsel had the ulterior motive of upsetting the numerical advantage enjoyed by the defense when he exercised his peremptory challenge. Rather, it appears that the revealing of a court member's prior connection with the case was the real reason for the challenge. Neither was the ruling of the law officer permitting the challenge an abuse of discretion. No doubt his ruling was influenced by his discernment that doubt had been cast on one of the members of the court and his recognition that any remedial action should be taken while the proceedings were still within the challenge area. Furthermore, there does not appear to be any numerical advantage in a seven member court over a five member court. ACM 9092, Fetch, Moler & Holt (1954) 17 CMR 836. [See 31 Am Jur, Jury § 191.] The fact that the accused was not affirmatively advised of his right to peremptorily challenge any member of the court, nor expressly offered an opportunity to exercise such right, does not disclose nor indicate that his right was infringed, abridged, or denied. Accordingly, trial counsel's failure to comply with Appx 8a, p 507, MCM, 1951, by asking the accused if he wished to exercise his right to peremptorily challenge one member, was not jurisdictional error (see U. S. v. Vanderpool (No. 4651), 4 USCMA 561, 16 CMR 135) and there is no evidence of prejudice. Furthermore, inasmuch as the accused was represented by certified defense counsel, it will be presumed that the defense counsel advised the accused of his rights and the law affecting the case, so that it may be concluded that the accused, even though not advised in open court of his right to exercise a pcremptory challenge, was aware of such right. CM 374929, Miller (1954) 17 CMR 411. DECORATIONS, MEDALS, BADGES, ETC. § 23.1. Generally. § 23. Foreign Decorations, Etc. An officer who served in Korea from September 1946 to November 1947 and again in 1952 and 1953 may be permitted to accept and wear the National Medal of the Republic of Korea under the provisions of the act of 8 May 1954 (PL 354, 83rd Cong, 68 Stat 79). (Citing sec III, Department of the Army Circular 68, 22 Jun 1954; General Order No. 67, DA, 1 Sep 1953; JAGA 1954/6241, 30 Jul 1954.) JAGA 1954/7434. 13 September 1954. The provisions of the act of 8 May 1954 (PL 354, 83d Cong., 68 Stat 79), do not authorize a civilian employee to accept a medal offered by the Republic of Korea unless he served in Korea subsequent to 26 June 1950 as a member of the armed forces, as the statute is applicable only to members and former members of the armed forces. (Citing par 2, sec III, DA Circular 68, 22 June 1954; JAGA 1954/4711, 21 May 1954; JAGA 1954/5442, 11 June 1954; JAGA 1954/6241, 30 July 1954; JAGA 1954/6555, 9 August 1954; JAGA 1954/7434, 13 September 1954, 4 Dig Ops No. 3 Decor, Medals, etc § 23.1; JAGA 1955/1687, 2 February 1955; cf. JAGA 1947/4002, 30 April 1947.) Held also: Whether a civilian employee is precluded by the provisions of Art I, sec 9, clause 8 of the United States Constitution from accepting a foreign medal depends upon whether the employee holds an office of profit or trust under the United States. A determination of whether such an office is held cannot be made in the absence of such information as the method by which the relationship between the United States and the employee in question was created (e.g., appointment, election, contract), whether an oath of office was administered, whether civil service status exists, the pay or salary status, and the general nature and duration of the duties performed. (See JAGA 1953/7768, 29 September 1953; with 27 Op Atty Gen 219, compare 28 Op Atty Gen 598.) JAGA 1955/1920, 21 February 1955. DEFENSES 1. IN GENERAL. 1. Generally. § 3. Ignorance of Law or Fact. § 7. Entrapment. § 15. Former Punishment. III. FORMER JEOPARDY. § 23. In General. § 27. Identity of Offenses. IV. INSANITY; MENTAL RESPONSIBILITY. § 31. In General. The accused was found guilty of larceny of a camera. When the victimized officer discovered that his camera was missing he offered a reward for the return of the camera and a criminal investigator testified that they were told of this reward and given to understand that if the camera was recovered no further action would be taken and the matter would be dropped. Held: The prosecution of the accused was not barred by a promise of immunity since the provisions of the Manual providing that immunity which would bar a trial by court-martial can be granted to a witness only by an authority competent to order his trial by court-martial should be made applicable to the situation herein and neither the victim of the theft nor the criminal investigator possessed such authority. (Citing MCM, 1951, par 148e; see also U. S. v. Curtz, Fed No. 15547; 41 LRA (NS) 255; Fidelity and Deposit Co. of Maryland v. Grand National Bank of St. Louis, 69 F2d 177; 11 Am Jur p 241.) NCM 342, Van Keuren (1954) 16 CMR 434. Agreement not to prosecute as affected by authority of person making the agreement, see United States v. Werthman, infra § 15.1. §3.1. Generally. § 3. Ignorance of Law or Fact Ignorance or mistake of law as defense, see ACM 9659, McLeod, TRIAL § 57.5. § 5. Pardon § 5.1. Generally. Agreement not to prosecute as not constructive pardon or condonation, see United States v. Werthman, infra § 15.1. § 7.1. Generally. § 7. Entrapment Defense of entrapment as unavailable where the criminal design originates with the accused, see ACM 8816, Emerson, LOSS, ETC. MIL PROP § 47.21. Defense of entrapment is not available to one who had conceived the wrongful plan, see NCM 359, Tamas, LARC § 21.1. § 15.1. Generally. § 15. Former Punishment During the course of an investigation of an offense allegedly committed by the accused his squadron commander informed the accused that so far as he, the commander, was concerned charges would not be preferred. The wing commander subsequently concurred in the decision not to prosecute. However, later, a new commander was detailed to command the squadron and he preferred charges. Held that: - while a commander may dismiss pending charges or refuse to prefer them, it is impossible to interpret his promise not to prefer or to dismiss as any form of punishment. Accordingly, trial on the charges was not barred because former punishment. (Citing MCM, 1951, pars 32d and 68g.) - the trial of the accused was not barred on the theory of a pardon since a pardon is an act of the President. Nor is prosecution barred on the theory of constructive pardon or condonation. Condonation is an act of grace which cannot be extended by anyone who does not have authority to convene a general courtsmartial and then only to deserters. Moreover, the mere fact that charges once preferred have been dropped by a commander, cannot be pleaded in bar as a constructive pardon of the same upon their being subsequently revived and brought to trial. (Citing Winthrop, Military Law and Precedence, 2nd ed, 1920 Reprint, p 271; MCM, 1951, par 56c; Legal and Legislative Basis, MCM, 1951, p 47.) the trial of the accused was not barred under the doctrine of former jeopardy. That defense may be sustained only where there has been a termination of proceedings by a judicial act of some recognized form or a trial of the accused on the merits. A promise not to prosecute has never been interpreted to have the effect of a judicial order or decree, and here the act of the squadron commander was no more than a personal preference not to proceed against the accused. That sort of an arrangement is not the equivalent of jeopardy. (Citing UCMJ, Art 44; MCM, 1951, par 68d.) - while many ethical grounds may be advanced as to why promises not to prosecute should not be broken, unless the promisor has the authority to make an agreement which is binding on the prosecution, it cannot be barred from requiring an offender to pay the penalty for a crime committed. In this instance, the squadron |