his office by his communist captors, had the responsibility and duty to take such actions as were available to him (and if the senior officer present to exercise such command as he was able) to assist his fellow prisoners, to help maintain their morale, and to counsel, advise and, where necessary, order them to conduct themselves in keeping with the standards of conduct traditional to American servicemen. This is what the officer was endeavoring to do and while so doing he was unquestionably acting in the execution of his office. CM 374314, Floyd (1955) 18 CMR 362. § 25.1. Generally. § 21. Aggravated Assault § 25. Grievous Bodily Harm In his instructions on a trial for assault with intent to commit murder, the law officer instructed the court on assault with intent to inflict grievous bodily harm as a lesser included offense of the offense charged. The court, by exceptions and substitutions, found the accused guilty of this purported lesser included offense. Held: Although the offense of assault with intent to inflict grievous bodily harm was recognized prior to the Uniform Code of Military Justice, it is no longer an offense cognizable by military law (U. S. v. Woodson (No. 1740), 3 USCMA 372, 12 CMR 128). Held also: However, findings of guilty of assault with a dangerous weapon may be affirmed since all the elements of this offense were included in the allegations, were established beyond a reasonable doubt, were instructed on and were necessarily included in the findings of assault with intent to inflict grievous bodily harm. (Citing U. S. v. Gibson (No. 1105), 3 USCMA 512, 13 CMR 68; U. S. v. Shelton (No. 3356), 4 USCMA 116, 15 CMR 116.) ACM 4715, Burns (reh) (1954) 16 CMR 922. III. ELEMENTS OF OFFENSE; JUSTIFICATION § 49.1. Generally. § 49. Self-Defense The accused was found guilty of assault with a dangerous weapon. The evidence showed that one P. provoked a fight with the accused and the accused was badly beaten. The accused testified that he departed after the fight and sought out some friends and then returned to the scene, whereupon P. resumed the fight. After the fight had terminated a second time, P. discovered he was wounded. Prosecution witnesses testified as to seeing what looked like a knife in the accused's hand. However, the accused denied using a knife and several persons testified in corroboration that they saw the fight but did not see the accused use a knife. The law officer instructed with regard to the elements of self-defense that self-defense could be resorted to in order to repel force but not to inflict revenge and that it was a defensive not an offensive act and could not exceed the bounds of mere protection of one's self. Held: Self-defense is a plea of necessity. Therefore, it is generally not available to one who engages with another in mutual combat. Neither does it shield from criminal responsibility one who uses more force than he believes to be reasonably necessary to protect himself from injury. Assuming the accused's testimony was not tantamount to a judicial confession of engaging in mutual combat, and that P. was an aggressor committing an unlawful assault, the accused was justified in using only such force as seemed to him to be necessary to protect himself from harm. Whether that included the use of a knife would be a question of fact for the court-martial to decide under proper instructions from the law officer. (Citing 4 Am Jur, Assault and Battery, § 38; U. S. v. Weems (No. 2072), 3 USCMA 469, 13 CMR 25.) Held also: The instructions on self-defense were inadequate but on the evidence and on the theory relied upon by the accused the error was not prejudicial to the accused. The evidence must show a sound theory of self-defense in order to warrant an appropriate instruction. No such theory appears here since the accused did not contend it seemed reasonable to him to use a knife in defense of his person. Rather, he disputed the fact that it was he who inflicted the injuries on P. and he denied that he carried a knife or had used one. United States v. Wilson (No. 5706), 5 USCMA 783, 19 CMR 79. Obscene words as not appropriate self-defense against assault, see CGCMS 20148, St. Croix, DISRESPECT § 11.1. § 49.11. Resisting unlawful arrest or excessive force in effecting arrest. Right of self-defense against air police using excessive force, see ACM S-10307, Slaughter, infra § 68.19. § 65. IV. PROSECUTION A. IN GENERAL § 61. Charges and Specifications Assault on Superior, or Noncommissioned, etc. Officer § 65.3. Duplicity or multiplication. The accused was charged with offering violence against a superior officer by striking at him with his hand and saying "take off your shirt and I'll kick the . . out of you". A defense motion to strike from the specification the allegation as to what the accused said on the ground of duplicity was denied. By exceptions and substitutions the accused was found guilty of behaving himself with disrespect toward the officer involved by saying the words alleged. Held: The law officer did not abuse his discretion in failing to sustain the accused's motion to strike since both the accused's action in striking at the officer and his saying of the words alleged were a part of the same transaction. An indictment or count in which two or more separate and distinct offenses, whether of the same or a different nature, are set forth together, is said to be double and such pleading is bad on account of duplicity. This rule, however, does not apply to the stating together, in the same count, of several distinct criminal acts, provided the same all form parts of the same transaction, and substantially complete a single occasion of offense. (Citing Winthrop's Military Law and Precedents, 2nd ed, 1920 Reprint, p 143; MCM, 1951, par 28b; CM 268259, Stevens, 44 BR 241, 253; CM 349258, Branford, 2 CMR 489; NCM 130, Harris, 4 CMR 444; CM 351639, Brooke, 6 CMR 409, pet den 6 CMR 130; CM 360408, Bull, 9 CMR 520.) Held also: Any proscription against duplicity in a pleading does not apply to an offense necessarily included in the offense charged as to which the accused may be convicted although acquitted of the principal offense. (Citing UCMJ, Art 79; U. S. v. Parker (No. 2449), 3 USCMA 541, 13 CMR 97, 103 and cases cited.) Disrespect toward a superior officer by making disrespectful statements toward him is a lesser included offense of the offense upon which the accused was originally arraigned since the two offenses are substantially the same kind, the proof reasonably raised all the elements of both crimes, and the allegations in the specification as to what the accused said might be considered surplus as to the offense charged but were necessary to the offense found. (Citing U. S. v. Duggan (No. 3584), 4 USCMA 396, 399–400, 15 CMR 396; CM 357193, Carter, 6 CMR 401, 403; CM 236888, Hamilton, 23 BR 165, 168-169; CM 279503, Tracy, 52 BR 265, 269.) ACM 9632, Luckey (1954) 18 CMR 604. [See 27 Am Jur, Indictments and Informations §§ 124, 143.] § 68. Instructions to Court § 68.11. Assault with intent to do bodily harm or assault whereby bodily harm is intentionally inflicted. Adequacy of instruction as to elements of assault in which grievous bodily harm is intentionally inflicted as a lesser offense of assault with intent to commit voluntary manslaughter, see United States v. Malone, HOMIC § 82.11. § 68.13. Offenses other than that charged. On a trial for striking a superior officer the following instruction was given: "That the accused struck a certain officer, or drew or lifted up a weapon against him, or offered violence against him, as alleged; that the officer was the superior officer of the accused at the time; and that the superior officer was in the execution of his office at the time." Held: The only infirmity involved in the instruction is that since a simple striking with the hand was alleged, the instructions should have made no alternative mention of an offer of violence since this would have permitted conviction of an assault and battery against a superior officer upon the alternative instruction of an assault. However the error did not mislead the court nor prejudice the rights of the accused. The error is minimized by the fact that the instructions were qualified by the phrase "as alleged". The allegation in the specification was of an assault and battery against a superior officer; therefore, the qualification "as alleged" served notice that any act less than the allegation of a consummated battery was not to be considered. (Cf. U. S. v. Johnson (No. 498), 1 USCMA 536, 4 CMR 128; U. S. v. Hemp (No. 290), 1 USCMA 280, 3 CMR 14.) NCM 315, Dittmar (1954) 16 CMR 364. § 68.15. Included offenses. The accused was convicted of an assault whereby grievous bodily harm was intentionally inflicted. The evidence showed that he became involved in an altercation at an enlisted man's club. He was forcibly ejected by a certain sergeant. After the sergeant had returned to his barracks and gone to bed the accused was seen in the sergeant's room standing over his bed muttering "if you don't say you had enough, I'll beat your brains out." The sergeant, his face broken and clotted, was on the bed which was literally flooded with blood. Testifying in his own behalf, the accused described the difficulty at the club in detail, remembered the sergeant as the person who had ejected him, and recalled entering the sergeant's room later in the evening, he repeated in detail an alleged conversation he had with the sergeant after awaking him, and he gave a blow by blow description of the encounter he claimed occurred thereafter. The law officer refused to instruct on the lesser included offense of assault and battery. Held: The lesser included offense of assault and battery was not reasonably raised by the evidence. The sergeant testified that he remembered nothing of the incident and he was doubtless asleep and unable to defend himself. Moreover the accused's admission on the stand that the sergeant outweighed him by some forty pounds is sufficient to convince that there was no joint affray. Furthermore, barracks neighbors stated they heard no sounds indicating a mutual affray as claimed by the accused. The fact that fists alone are used to inflict injury does not as a matter of law require the submission of a lesser degree of assault. Citing U. S. v. Dejewski (No. 2055), 33 USCMA 53, 11 CMR 53). United States v. Sharp (No. 5863), 5 USCMA 580, 18 CMR 204. The accused was convicted of assault whereby grievous bodily harm was intentionally inflicted. In the course of a fight he slashed the victim across the face with a sharp instrument. No one was certain what the instrument was but the accused thought it was a beer can opener. In a pretrial statement he admitted scraping the victim across the face and he made no suggestion that his actions were other than intentional. He claimed to have been intoxicated but, in his confession, he described provoking language used by the victim which led to the assault, he remembered vividly the details of the encounter and he recalled with clarity each event after the victim's injury. However, in his testimony at the trial, he admitted nothing more more than a battery, He denied using the opener as a weapon and stated he only intended to hit the victim; not cut him. The court was instructed on the effect of intoxication on specific intent and on the lesser offense of assault consummated by a battery but it was not instructed on assault with a dangerous weapon. Held: The offense of assault with a dangerous weapon was not an issue in the case and accordingly there was no necessity for instructions thereon. Furthermore, the accused's individual counsel at trial adopted a theory of defense designed to result either in acquittal, or in a conviction of a lesser offense of assault consummated by a battery. His election to ignore the possibility of an assault with a dangerous weapon is made clear by (1) his omission to develop this theory either through his own evidence or on cross-examination, (2) by his failure to advert to it in closing argument while expressly mentioning simple assault, and (3), by his election not to request that the court-martial be instructed on that issue. The fact that these tactics failed constitutes no reason for granting the defense on appeal an opportunity to pursue a different theory. (Citing U. S. v. Bowers (No. 2678), 3 USCMA 615, 14 CMR 33; U. S. v. Duggan (No. 3584), 4 USCMA 396, 15 CMR 396.) United States v. Holley (No. 5899), 5 USCMA 661, 18 CMR 285. § 68.19. Defenses, generally. The accused was convicted of assault on an air policeman. According to some prosecution witnesses, while in an air police headquarters and in the presence of the officer of the day and three air policemen, the accused was told to place his personal property on a counter. He did so but refused to sign for it. One of the air policemen then went over to take the property and he told the accused to face the wall and spread his legs so that he could be searched to make sure he had turned in all his property. The accused complied but the policeman wanted him to spread his legs more. The accused refused, complaining of a leg injury. The policeman then tried to force the accused's legs apart and the accused then turned and grabbed him and they fell to the floor. This was the act upon which the assault charge was based. While they were on the floor one of the other policemen hit the accused with a club. After the search was completed the accused was carried out. The testimony of the alleged victim was inconsistent with that of the other witnesses in that he testified the assault took place earlier than the other witnesses stated and that the accused never complied at all with his request to face the wall and spread his legs. The accused testified that when he complained of a leg injury the policeman then kicked his legs with his boot and that he then turned and shoved the policeman away and the policeman then grabbed his arm and twisted it and they fell to the floor. He also stated it was unnecessary to carry him away as he was fully able to walk and that when they were carrying him he tried to move one of his arms and the policeman whom he allegedly assaulted then struck him in the eye. The defense counsel argued self-defense but the president of the court did not instruct thereon. Held: The evidence reasonably raised an issue of self-defense and the failure to instruct thereon was prejudicial error. With three policemen and an officer present in an air police headquarters where more help was no doubt available, it could hardly be claimed there was any danger from the unarmed accused. Furthermore, the accused had submitted to the authority of the police and at the time in question had produced most if not all of his property. Therefore there was little necessity to search him at all and certainly no necessity to do it by force. In view of the foregoing the court might reasonably have believed that the force used by the air police was not necessary to the discharge of police duties and was therefore unlawful and constituted a consummated assault upon the accused. When unnecessary and there |