misled and is protected from a second prosecution for the same offense. In fact the allegation that the absence was from the naval service places a more serious task on the prosecution of showing an authorized absence from the entire naval service rather than from a specific unit, place of service, organization or place of duty. NCM 316, Arisio (1954) 16 CMR 367.

§ 31.3. Duplicity; multiplication.

On 10 November 1952 the accused went absent without leave from the Navy. While in that status he enlisted in the Army without disclosing that he was not regularly separated from the Navy. When his fraudulent enlistment was discovered, the Army returned him to naval control and he was found guilty of two specifications of desertion, one alleging desertion with intent to remain away permanently and the other alleging desertion by enlistment in another armed force. Held: Findings of guilty under the two specifications may be approved although they are but different ways of alleging the same offense. (Citing MCM, 1951, par 74b(4); U. S. v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17; U. S. v. Redenius (No. 2450), 4 USCMA 161, 15 CMR 161; U. S. v. Larney (No. 775), 2 USCMA 563, 10 CMR 61.) However, it was error to permit the court to consider the maximum sentence for both specifications since they were not separate offenses. If desertion with intent to remain away permanently in violation of UCMJ, Art 85(a) (1) and desertion by enlistment in another armed force in violation of Art 85(a)(3) were intended to be different offenses they would be separable for punishment purposes since each involves elements not present in the other. However, in enacting the provision relating to enlistment in another armed force, Congress did not intend to create a new and separate offense, but rather, it merely sought to establish a rule of evidence by which the prosecution could prove absence without authority with intent to remain away permanently. Thus, the two specifications herein state the same offense twice and the court was permitted to calculate double punishment. (Citing Blockburger v. U. S., 284 US 299, 76 L ed 306, 52 S Ct 180; MCM, 1951, par 76a (8); U. S. v. Bondar (No. 1781), 2 USCMA 357, 8 CMR 157; U. S. v. Redenius (No. 2450), 4 USCMA 161, 15 CMR 161; Winthrop, Military Law and Precedents, 2nd ed, 1920 reprint, p 652; Discussions relating to desertion in Manuals for Courts-Martial 1917, 1928, 1949.) United States v. Johnson (No. 4898) 5 USCMA 297, 17 CMR 297.

§ 35.4. Plea of guilty.

§ 35. Pleas and Defenses

The accused pleaded guilty to desertion commencing on 19 April 1948. Congress declared World War II terminated as of 25 July 1947. The Korean conflict began in June 1950. Secretary of Navy Letter 52-192 of 15 April 1952 provides in part that in all cases of desertion a plea of not guilty must be entered for the accused. The Letter also contains the following sentence: "The policy enunciated in this letter is, of necessity, general in nature and intended as a guide only, and is not issued for the purpose of delimiting the tradi

tional discretion and authority which is inherent in the officers of those charged with the administration of discipline." Held: The accused's desertion did not occur in time of war and hence the maximum punishment could not extend to death and thus the accused's plea of guilty was not precluded by UCMJ, Art 45(b) which prohibits such a plea when the death penalty may be adjudged.

Held also: The acceptance of the accused's plea of guilty in contravention of the provisions of the Secretary of the Navy Letter was not reversible error since the letter, considered in its entirety, is merely a statement of policy. Furthermore, even if the acceptance of the plea of guilty is considered a procedural error there was no prejudice to the substantial rights of the accused. (Cf. U. S. v. Paige, 5-53-G-1187 of 27 Aug 1953; U. S. v. Kreiwatis, 1-53-G-916 of 25 Jan 1954; NCM 297, Milbourne, 15 CMR 527. Citing U. S. v. Castner (No. 3102), 3 USCMA 466, 13 CMR 22.) NCM 384, Wakeley (1955) 18 CMR 431.

§ 38.1. Generally.

§ 38. Instructions to Court

Instructions permitting a finding of apprehension by a preponderance of evidence rather than beyond a reasonable doubt, see ACM 10188, Wilson, TRIAL § 56.1.

§ 38.5. Intent to remain absent permanently.

During a major portion of the period of absence alleged under a desertion charge the accused was in the hands of civil authorities. The law officer instructed the court on the elements of desertion and specifically on the element of intent, and further directed the court's attention to page 313, MCM, 1951, which relates to the inference that may be drawn from a prolonged absence not satisfactorily explained. He did not instruct the court that the period of time during which the accused was in the hands of civil authorities could not be considered in determining whether the absence was prolonged. Held: It would have been better practice for the law officer to instruct that the period of time during which the accused was in the hands of civil authorities could not be considered in determining whether the absence was prolonged. However, in the absence of a request for such an instruction there is no error in the law officer's instructions. (Citing U. S. v. Smith (No. 486), 2 USCMA 440, 9 CMR 70.) NCM 334, Hedges (1954) 16 CMR 412.

§ 43.1. Generally.

§ 43. Sentence and punishment

Desertion with intent to remain away permanently and by enlistment in another armed force as not separate offenses for punishment purposes, see United States v. Johnson (No. 4898), supra § 31.3.

B. EVIDENCE

1. IN GENERAL

§ 49. Admissibility, Competency, and Relevancy

§ 49.7. Other offenses.

Evidence was admit-
The sentence on the

The accused was found guilty of desertion. ted showing a prior conviction for desertion. prior conviction had been completely served at the time of the absence involved in the instant case. Held: The evidence of the prior conviction was erroneously admitted in evidence since no part of the prior sentence remained, either suspended or temporarily held in abeyance, and accordingly the evidence did not tend to establish any plan or design of the accused to desert the service nor any motive in his remaining absent. (Citing CM 357926, Moreno, 7 CMR 289. Distinguishing U. S. v. Powell (No. 1450), 3 USCMA 64, 11 CMR 64; U. S. v. Deller (No. 1859), 3 USCMA 409, 12 CMR 165; U. S. v. O'Neil (No. 2241), 3 USCMA 416, 12 CMR 172; ACM 7727, Reed, 13 CMR 925; ACM 7646, Muench, 14 CMR 857.) However, the admission in evidence of the prior conviction was not prejudicial since other evidence clearly established virtually two years unauthorized absence, which prolonged absence was not explained, during which period the accused traveled a considerable distance and therefore the court would probably reach the same findings had not the inadmissible evidence been introduced. (See ACM 6787, Bloomfield, 11 CMR 686, and authorities cited therein.) ACM 9178, Hanlon (1954) 16 CMR 933.

The accused was charged with desertion from 2 September 1953 until 6 October 1953, escape from confinement on 12 October 1953, and absence without leave from 23 November 1953 to 6 December 1953. The evidence established an unauthorized absence from 2 September 1953 to 6 October 1953, terminated by apprehension which required the use of considerable force to subdue the accused, his escape from confinement six days later, and his subsequent unauthorized absence and apprehension followed some seventeen days later by another unauthorized absence from 23 November 1953 to 6 December 1953. Held: The offenses committed by the accused subsequent to the alleged desertion could be considered by the court as a basis for an inference that the accused intended to desert the service, since the accused's overall conduct shows a pattern of defiance of military authority and reflects a purpose not to voluntarily perform further military service. (Citing U. S. v. Barrett (No. 2574), 3 USCMA 294, 12 CMR 50; U. S. v. Petty (No. 2155), 3 USCMA 87, 11 CMR 87; ACM 8012, Gravitt, 15 CMR 674; ACM 8262, Pearson, 15 CMR 761.) ACM 8966, Goad (1954) 16 CMR 886.

See also NCM 322, Charlton, EVID § 49.1.

The accused was convicted of desertion. At the trial the prosecution offered in evidence exhibits showing that the accused had been convicted of an unauthorized absence from 13 May 1952 to 30 July 1952, a breach of arrest on 7 August 1952 and a second unauthorized absence from 7 August 1952 to 21 September 1952. The defense

objected to this evidence and produced evidence showing that both of the prior unauthorized absences were terminated by surrender. In spite of this showing, the law officer admitted the prosecution documents. Held: Evidence of acts of misconduct by an accused other than those charged is generally inadmissible. However, such evidence is admissible, if apart from showing bad moral character of the accused it has substantial value as tending to prove a fact in issue. Thus, several categories of admissibility are recognized. Among these categories are categories relating to evidence tending to prove guilty knowledge or intent and evidence tending to prove motive. If the evidence meets the requirements of any of these, it is admissible, even though it may have other incidental effects that are unfavorable to the accused. (Citing U. S. v. Yerger (No. 122), 1 USCMA 288, 3 CMR 22; U. S. v. Valencia (No. 308), 1 USCMA 415, 4 CMR 7; MCM, 1951, par 138g, pp 245-246.) The evidence of misconduct in this case is distinctly relevant to the determination of the accused's guilt of the offense charged since, taken as a whole, the evidence reveals an integrated course of conduct which throws light on the accused's intent during the absence charged. After an unauthorized absence of over two and one-half months, the accused returned to military control for only one week. He ended this brief return to the service not by just a second absence, but by one accompanied by a breach of arrest. These circumstances reduced the significance of the surrender which terminated the accused's first absence. It is not unreasonable to conclude that having twice surrendered and twice regretted that act the accused determined during his third absence to remain away permanently. Consequently, in relation to all the evidence, the fact of surrender lessens but does not, as a matter of law, so far outweigh the significance of the other evidence as to require its exclusion. In its entirety, the evidence shows a course of conduct which supports an inference that the accused intended to remain away permanently. Since it was relevant, it was properly admissible. Accordingly, the law officer was correct in denying the accused's objection to the admission of the evidence. (Citing U. S. v. Powell (No. 1450), 3 USCMA 64, 11 CMR 64; U. S. v. Deller (No. 1859), 3 USCMA 409, 12 CMR 165; U. S. v. O'Neil (No. 2241), 3 USCMA 416, 12 CMR 172.) [Latimer, J., concurring. Brosman, J., dissenting states that the evidence in question suggests the very antithesis of an intent to remain away permanently and that the accused was no more than a recidivist absentee and not one who sought to leave the service once and for all. Accordingly, the minimal relevance of the prosecution evidence of prior absences, weighed against the probability of damage to the accused from its acceptance renders the evidence inadmissible. If however, the accused had been charged with unauthorizedly absenting himself with intent to shirk important service, the same evidence would have been admissible. In that context the termination of the prior absences by surrender would be much more nearly consistent with an intent on the accused's part to prevent his rendition of important service. (Citing dissent of Brosman, J., in U. S. v. Knoph (No. 605), 2 USCMA 108, 6 CMR 108; see also U. S. v. Deller (No. 1859), 3

USCMA 409, 12 CMR 165; U. S. v. O'Neil (No. 2241), 3 USCMA 416, 12 CMR 172.)] United States v. Graham (No. 4905), 5 USCMA 265, 17 CMR 265.

[See 20 Am Jur, Evidence $ 313.]

§ 53. Variance

§ 53.1. Generally.

Variance as to place or organization, accused absented himself from, see AWOL § 37.5.

2. WEIGHT AND SUFFICIENCY; PRESUMPTIONS
AND INFERENCES

§ 57. In General

§ 57.4. Proof of corpus delicti.

The accused was convicted of desertion. The only adequate evidence of intent to remain permanently absent from the service was contained in a pretrial statement of the accused. The evidence before the court, aside from the pretrial statement, consisted of two morning report extracts establishing the accused's absence from his organization in the Philippine Islands for the period alleged, a verbal stipulation that the Base Provost Marshal had issued an order to the Philippine authorities for the apprehension of the accused and the testimony of a captain in the Philippine Army to the effect that, after coordination with the Office of Special Investigations, he proceeded with a group of his agents to a nearby village for the purpose of apprehending the accused. From a distance of approximately 200 yards, the captain observed his agents spread out and close in on an area of trees, bushes, and sugar cane. Shortly thereafter, they returned to the jeep with the accused in their custody. In his pretrial statement, the accused admitted that he had joined the Hukbalahaps during his absence and that he had intended to remain with them until the Air Force authorities were no longer conducting an intensive search for him. Held: There was sufficient proof of the corpus delicti to permit consideration of the pretrial statement of the accused. Although it cannot be concluded that the evidence disclosing arrest of the accused by members of the Philippine Army pursuant to the request of the American authorities under circumstances indicating that he was probably apprehended is sufficient to establish apprehension beyond a reasonable doubt, such evidence is more than adequate to raise the inference of an intent to remain permanently absent and completes the corpus delicti required for the admission of the accused's pretrial statement. (Citing U. S. v. Uchihara (No. 60), 1 USCMA 123, 2 CMR 29; U. S. v. Isenberg (No. 579), 2 USCMA 349, 8 CMR 149; and other cases; MCM, 1951, par 140a.)

Held also: The admitted defection of the accused to an armed Communist guerilla organization which was in open conflict with the constituted Philippine and United States authorities is more than adequate to infer an intent to desert, despite the accused's protestations