ized. (Citing Wigmore, Evidence, 3d ed, sec 1414; cf. ACM 5408, Howard, 7 CMR 553. Distinguishing U. S. v. Barcomb (No. 726), 2 USCMA 92, 6 CMR 92.) CGCM 9814, Martin (1954) 16 CMR 446. The accused was convicted of stealing a package from the mails. Before leaving the United States, an officer's wife made arrangements to have her sewing machine sent to her husband's address in Japan. She never received it through the mail but she identified a machine found in the store of a Japanese merchant as hers. The accused was assigned to the base post office and part of his duties involved picking up mail at the station. He brought a box containing a sewing machine into a store near the station and sought to sell it. The box bore stamps and postmarks clearly indicating it was in mail channels and it was addressed to the officer's wife at her husband's address. A deposition in which certified counsel played no part was admitted in evidence. It contained the testimony of a co-worker of the accused to the effect that he accompanied the accused to the station and saw a box containing a sewing machine and heard the accused remark that he could use the machine. Shortly thereafter, he saw the accused walking off with the machine. After the deposition had been originally admitted into evidence and read to the court, the law officer ordered it withdrawn from evidence and instructed the members of the court to disregard it. Held: The receipt in evidence of the deposition testimony of the accused's co-worker, in which deposition certified counsel played no part thus rendering it inadmissible in a trial by general court-martial, prejudiced the accused's substantial rights notwithstanding the fact that the law officer subsequently ordered the deposition withdrawn and instructed the court members to disregard the testimony contained therein. As a general rule it may be presumed that court members follow the law officer's instructions and thus that the court members herein disregarded the deposition testimony. However, there is an exception to the general rule where the evidence would probably make such a deep and lasting impression on the minds of the court members that it could not reasonably be erased by an admonition from the law officer. In the instant case, the exception rather than the general rule, controls since, while other evidence relative to the mail offense is sufficient, the only proof of an actual abstraction from the mails is entirely circumstantial in nature and certainly not compelling. On the other hand, the deposition testimony was an eyewitness account of the accused's wrongful abstraction of the sewing machine from the mails. The court, having heard this inadmissible testimony indicating a wrongful removal of a package from mail channels would find it difficult if not impossible to erase this from their minds. (Citing U. S. v. Drain (No. 4510), 4 USCMA 646, 16 CMR 220; ACM 8920, Bridges, 17 CMR 582; U. S. Brumfield (No. 3797), 4 USCMA 404, 409, 15 CMR 404, 409, and authorities cited therein.) ACM 9347, Kennedy (1954) 17 CMR 767. [See 53 Am Jur, Trial § 671.] The trial of the accused on a charge of being drunk on duty as officer of the day took place overseas. The testimony of the officer who briefed the accused as to his duties as officer of the day and who later saw him and noted the smell of liquor on his breath was presented by deposition since this officer had been returned to the United States upon completion of his overseas tour. Objection was made to the admission into evidence of the deposition on the ground that the officer should have been held within the command in order that he might appear personally at the trial. The deposition complained of was taken before an officer designated by the convening authority to perform that task and the prosecution as well as the accused were represented by certified counsel. However, defense counsel pointed out that he did not represent the accused in the taking of the deposition and contended that had the officer appeared in person at the trial the defense would have been able to impeach his testimony. Held: There was no abuse of discretion in determining it would not be necessary in the interest of justice to retain the witness within the command past his rotation date in order to permit him to appear in person at the trial. The requirements of the Code and the Manual as to admissibility having been met, the deposition was admissible in evidence in spite of the fact that neither of the defense counsel at the trial represented the accused in the taking of the deposition. (Citing MCM, 1951, par 115a, 117 and 145a; UCMJ, Art 49; U. S. v. Sutton (No. 1718), 3 USCMA 220, 11 CMR 220; U. S. v. Drain (No. 4510), 4 USCMA 646, 16 CMR 220.) ACM 9469, Rogers (1954) 18 CMR 513. Erroneous admission of deposition as not prejudicial where it contained only collateral and cumulative information, see United States v. Drain, supra § 1.11. § 9.5. Absence or remoteness of witness as ground for admissibility. At a court-martial trial in France, prosecution offered a deposition by a French witness who, as a French National, was not amenable to court-martial process. Defense counsel objected to admission of the deposition on the ground that the witness resided within 100 miles of the place of trial and no showing was made that she would not or could not respond and appear. Held: Consideration of the deposition was precluded by failure of the prosecution to lay a proper foundation. Since the court-martial was sitting in France and the witness resided at the time of the deposition within 100 miles of the locus of the court-martial and it must be presumed that she continued to reside there when the trial began, the provision of UCMJ, Art 49 (d) (1), permitting the use of depositions where the witness resides or is beyond the "State, Territory, or District" in which the court was ordered to sit, or "beyond the distance of 100 miles from the place of trial or hearing," was inapplicable. In this connection, the words "State, Territory, or District" refer obviously to geographic areas within the United States and its territorial possessions. In light of the same presumption of continuing residence, the whereabouts of the witness at the time of the trial would appear to be "known," rather than the contrary. Therefore, the provision of Art 49(d) (3), which permits use of depositions where the present whereabouts of a witness is unknown, is likewise inapplicable. Held also: Also, although it was shown that the witness was not amenable to subpoena, in order for the provision of Art 49 (d) (2), which permits the use of depositions in the case of persons not amenable to process, to come into effect, there must be shown an inability, or a refusal, to testify, and that was not shown in the instant case. In the case of a nearby foreign witness, the prosecution should notify him of the expected date of trial, request his attendance, and advise him of any departmental regulations authorizing his need for such attendance. United States v. Stringer (No. 4071), 5 USCMA 122, 17 CMR 122; reversing CM 364834, 12 CMR 460. § 9.11. Nonamenability of witness to process. Necessity of showing witness was unable or refused to testify, see United States v. Stringer, supra § 9.5. I. IN GENERAL. III. PROSECUTION. A. IN GENERAL. DESERTION § 31. Charges and Specifications. § 35. Pleas and Defenses. § 38. Instructions to Court. § 43. Sentence and Punishment. B. EVIDENCE. 1. In General. § 49. Admissibility, Competency, and Relevancy. § 53. Variance. 2. Weight and Sufficiency; Presumptions and Inferences. § 57. In General. § 61. Intent to Desert. § 65. Period of Absence. § 67. Manner of Termination. I. IN GENERAL § 1. Generally § 1.9. Loss of citizenship or nationality. § 1.57. Relief from desertion charge. Thirty days after he failed to return from liberty a serviceman was declared a deserter and an entry to that effect made in his records. After his disappearance neither his family, friends, nor the Naval service had word of him and efforts by the FBI and the American Consulate in the country where he disappeared did not locate him. After the passage of seven years a state court entered an absolute decree that he was presumed dead. His mother applied to the Board for Correction of Naval Records to remove the mark of desertion. The board found that the man did not in fact desert the Naval service, that the mark of desertion entered in his Naval record was entered in error and the continued entry therein was an injustice, that he was presumed to have died because of unexplained absence for over seven years, that he was in a line of duty status when last seen and was presumed to have continued in that status, and that his death occurred in line of duty and not a result of his own misconduct. The board recommended correction of his Naval records in accordance with the findings. Held: The presumption arising from seven years unexplained absence is only as to the fact, and not as to the time, of death, except that it occurred at some time during the seven year period. It is only in cases where the evidence establishes exposure of the missing person to some specific impending or immediate peril which might reasonably be expected to destroy life, or where there are circumstances inconsistent with the continuance of life, that the specific time of death may be determined. In the instant case there is a complete absence of evidence indicating time of death. Accordingly, the board correctly omitted from its findings any mention of the particular time at which death might have occurred. However, inability to establish the time of death precludes a finding that death occurred in the line of duty since such a determination cannot correctly be made in the absence of evidence indicating that death occurred while the man was on active service, or at least that there was some connection between his naval service and his death. Therefore, the facts do not support a conclusion that the death occurred in the line of duty. However, there is no necessity for a line of duty determination in connection with death benefits which might be sought under statutes administered by the Navy Department (sec 4 of the Naval Aviation Personnel Act of 1940, as amended, 54 Stat 864, 34 USC 855c-1; sec 1 of the Act of 4 June 1920, as amended, 41 Stat 824, 34 USC 943; cf. 22 Comp Gen 37). Accordingly, mention of the line of duty status of the man at time of death should be omitted from the corrective entry. Held also: There is no basis for holding that the mark of desertion was entered in error since it was entered in compliance with regulations requiring such an entry after thirty days' unauthorized absence. However, whether or not an error has occurred, if injustice exists a man's records may be corrected in order to remove the injustice. In the instant case, although a mark of desertion does not constitute a determination of guilt, there will doubtless never be a trial or other adjudication of the missing man's guilt or innocence and it may well be questioned whether an administrative mark of desertion should be indefinitely retained in the missing man's record, a continuing source of distress to his family, and a perpetual bar to certain material benefits that might otherwise accrue to his survivors under laws administered by other agencies of the government. Accordingly, if, in the judgment of the Secretary, there is an injustice in such a situation, he may correct the man's record to remove the injustice. Op JAGN 1954/259. 23 November 1954. [Presumption of death from absence, see 16 Am Jur, Death, §§ 18 et seq.] § 31.1. Generally. III. PROSECUTION A. IN GENERAL § 31. Charges and Specifications The accused was found guilty of desertion under a specification alleging that he did, on or about a specified date, without proper authority and with intent to remain away therefrom permanently, absent himself from the naval service, and did remain so absent until delivered on or about a certain date. Held: The specification was defective in that it did not inform the accused as to the precise place of duty, unit or organization of the naval service from which he absented himself. However, the specification contains the essential elements of the offense of desertion and the accused was not |