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raise an issue of intoxication so as to impose a duty upon the president of a special court-martial to instruct on the legal effect of intoxication, particularly in view of the fact that the president of the court adequately instructed on the elements of knowledge and that within the evidentiary picture established there was no fair risk of a finding different from that found, had a charge on intoxication been given. (Citing U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45; U. S. v. Simmons (No. 505), 1 USCMA 691, 5 CMR 119, 123. Distinguishing U. S. v. Miller (No. 1021), 2 USCMA 194, 7 CMR 70.) NCM 339, Warmack (1954) 16 CMR 426.

The accused was convicted of violating a Far East Command Circular reading as follows: "The purchase of exchange items for the purpose of resale, trade, or barter to or with any person who himself is not authorized to purchase from an exchange is prohibited." The accused asked that the court be instructed that before it could convict it must find that "at the time the accused purchased the item alleged in the specification he intended to resell the item to a person or persons not included within the classes authorized to buy in an Air Force post exchange." This instruction was refused and the court was instructed that the elements of the offense were (1) that there was in effect a lawful general regulation as alleged; and (2) that at the time and place and in the manner alleged, the accused violated the general regulation.

Held that:

-the requested instruction clearly sought to clarify the general instruction given by advising the court that more than a mere purchase was required to constitute a violation of the circular and that the purchase must be accompanied by a particular mental attitude. In its subject matter therefore, the requested instruction was correct and it is clearly sufficient to have put the law officer on notice of the issue the accused desired to present to the court. (Citing U. S. v. Short (No. 3586), 4 USCMA 437, 16 CMR 11; U. S. v. Phillips (No. 1244), 3 USCMA 137, 11 CMR 137.)

the closing argument of the defense counsel emphasizing the necessity that the evidence show the purpose of resale was not a legal substitute for an instruction which the law officer should have given. Under certain circumstances, a defense counsel's correct enumeration of the elements of the offense and his other conduct may constitute a waiver of his right to object to the law officer's failure to elaborate fully on those elements in his instructions. However, no possible basis for waiver exists here since the law officer did not adopt the defense counsel's statements of the elements and the adequacy of the instructions given was specifically questioned by the defense requested instruction. (Cf. U. S. v. Smith (No. 486), 2 USCMA 440, 9 CMR 70.)

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- the instructions given did not include the substance of the accused's request. That part of the instructions which referred to the commission of the offense "in the manner alleged" did not present the point of the requested instructions since the word "manner" usually suggests physical action, not mental attitude

and second, it does not clearly delimit the relationship between the purpose to resell and the status of the resale customer. Under the circular involved, the government was required to establish not only that the accused had a purpose to resell, but that he proposed to resell to a person not within the classes specifically enumerated. The requested instruction would have materially clarified this issue. Consequently, had it, or its substance, been incorporated into the law officer's instructions it would have been of substantial help to the court in reaching its findings and therefore the law officer abused his discretion by refusing to instruct on the subject of the accused's request. (Citing U. S. v. Bey (No. 4254), 4 USCMA 665, 16 CMR 239; cf. U. S. v. Gohagen (No. 858), 2 USCMA 175, 7 CMR 51.) United States v. Landrum (No. 4478), 4 USCMA 707, 16 CMR 281.

The accused was convicted of violating par 1258, U. S. Navy Regulations, 9 August 1948, which prohibits any member of the Naval establishment from accepting any sort of gift from persons or groups occupying an official position inferior to, and receiving less pay than, the contemplated donee. The court was instructed in the language of par 171a, MCM, 1951, that the elements of the offense were that at the time of the alleged offense there was in effect a lawful general regulation, specifically U. S. Navy Regulations, that the accused had knowledge of the regulations, and that he violated the regulations in the manner alleged. Held: The instructions were insufficient to apprise the court of the substance of the offense alleged since it was necessary to establish that the accused accepted a gift at a time at which he occupied an official position superior to, and received a higher rate of pay than, the donors of the gift, but no reference to these essentials is contained in the instructions. (Citing U. S. v. Williams (No. 251), 1 USCMA 231, 233, 2 CMR 137; U. S. v. White (No. 635), 2 USCMA 439, 9 CMR 69; U. S. v. Lookinghorse (No. 1124), 1 USCMA 660, 5 CMR 88; U. S. v. Simmons (No. 505), 1 USCMA 691, 5 CMR 119; U. S. v. Greenlee (No. 1930), 3 USCMA 284, 12 CMR 40; U. S. v. Landrum (No. 4478), 4 USCMA 707, 16 CMR 281.) [Latimer, J., dissenting for the reasons stated in his separate opinions in U. S. v. Gilbertson (No. 318), 1 USCMA 465, 4 CMR 57; U. S. v. Greenlee (No. 1930), 3 USCMA 284, 12 CMR 40 and U. S. v. Landrum (No. 4478), 4 USCMA 707, 16 CMR 281.]

Held also: The insufficiency of the instructions herein constitutes reversible error notwithstanding the fact the defense counsel did not point out the deficiencies at the trial. The duty of the law officer to instruct with respect to essential elements of the offense charged bears no relation to the equally binding obligation of defense counsel to request instructions on affirmative defenses, collateral issues, and the like raised during the course of trial. Furthermore, it is the law officer's duty to act on his own initiative in those situations in which he is presented with an issue so intertwined with the elements of the offense, forming the subject matter of the trial, that informed consideration by the court-martial is impossible in the absence of instructional enlightenment. (Citing U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99; U. S. v. Wallace (No. 988), 2

USCMA 595, 10 CMR 93; U. S. v. Hughes (No. 5076), 5 USCMA 374, 17 CMR 374.) Furthermore, the doctrine of waiver is inapplicable in the instant case because the questioned instruction was couched in the very words of par 171, MCM, 1951, and it cannot be held that the defense has waived a contention when his failure to object may simply have involved reliance on the Manual. (Citing U. S. v. Morris (No. 3834), 4 USCMA 209, 15 CMR 209.) United States v. Jett (No. 5056), 5 USCMA 476, 18 CMR 100.

On a trial for violating a general regulation promulgated by the United States Northeast Command it was not necessary that knowledge of the regulation be made the subject of an instruction and be established by the evidence since knowledge of a regulation emanating from a department, or territorial, theater, or similar area command is conclusively presumed and the board takes judicial notice that the United States Northeast Command is a "similar area command". (Citing U. S. v. Arnovits (No. 1434), 3 USCMA 538, 13 CMR 94; U. S. v. Snyder (No. 409), 1 USCMA 423, 4 CMR 15; MCM, 1951, par 154a(4).) ACM 9457, German (1954) 18 CMR 656.

The accused was found guilty of wrongful entry of an off-limits establishment. His first sergeant had received an official letter pertaining to off-limits establishments. After examination by the trial defense counsel, this list of off-limits establishments was admitted in evidence, without objection. This exhibit was simply a list of offlimits establishments and was not in the form of the order actually placing the establishments off-limits.

Held that:

- it is a well established principle of military law that one of the elements of proof of the offense of wrongful entry of an off-limits establishment requires evidence that competent authority had placed the establishment off-limits. (Citing CM 326116, Netroye, 75 (BR) 145; ACM S-51, Suders (BR), 2 CMR (AF) 8; ACM S-72, Ward (BR), 2 CMR (AF) 31.)

by failing to object to the prosecution exhibit, the defense waived the fact that this document was not the best evidence of the order given by competent authority placing the particular establishment off-limits. However, it should be noted that there would have been no basis for this assignment if the directive had been in the form of an order or regulation and had been issued over the command line of competent authority.

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an instruction that ". . the accused wrongfully entered an off-limits establishment, to wit, .", was insufficient to advise the court that, in addition to its other findings, it must find that competent authority had in fact issued an order placing the establishment off-limits and this omission in the instructions of an element of the offense was not cured by the defense's failure to object thereto. (Citing U. S. v. Strong (No. 244), 1 USCMA 627, 5 CMR 55.)

since the proof and instructions required to establish the offense of wrongful entry of an off-limits establishment are the same as an offense charged under UCMJ, Art 92 as a violation of a lawful

order or regulation, the offense of wrongful entry of an off-limits establishment should be pleaded as a violation of Art 92 rather than Art 134. ACM S-10447, Holstrom (1955) 18 CMR 900.

Sufficiency of instructions on violation of regulation relating to action to be taken by pilots under changing weather conditions, see NCM 371, Ricci, infra § 45.1.

Sufficiency of instructions on issue of knowledge of status of superior officer where accused claimed that he was under the influence of drugs, see United States v. Robinson, TRIAL § 57.9.

§ 35.7. Legality of order.

The accused was charged with disobedience of an order of a superior officer. The evidence showed that he requested to be discharged because he had become a member of a religious sect the beliefs of which prohibited his engaging in any type of military service. Upon being informed that he could not be released he stated he would have to stop wearing his uniform properly, he would have to stop going to work and stop saluting his commander, the other officers on the base and the flag. Later he was assigned for overseas shipment and he again requested his release. He was again refused and he made the same reply as to what action he would have to take. Later his commanding officer called him before him and in the presence of witnesses ordered the accused to salute him. The accused refused to do so and was placed under arrest. According to the commanding officer, he gave the order because he believed the accused was attempting to bluff his way out of the impending overseas shipment as the accused had previously asserted he would not perform duty or render military courtesies but had always done. so following each assertion. Held: The command of a superior officer is clothed with a presumption of legality and the burden of establishing the converse is upon the defense. (Citing Winthrop's Military Law and Precedents, 2nd ed, 1920, p 575; ACM 1778, West, 2 CMR (AF) 252; U. S. v. Trani (No. 106), 1 USCMA 293, 3 CMR 27; ACM S-2302, Whittaker, 5 CMR 529; ACM 8552, Gallagher, 15 CMR 911; ACM S-2898, Hill, 5 CMR 665.) The evidence herein is insufficient to raise a factual issue as to the lawfulness of the order and accordingly no instructions thereon were required. The commander's testimony was consistent, frank and without equivocation. His reasons for giving the order were logical and consistent with the situation which confronted him. His action was entirely consistent with his stated reason for the order and there is nothing in the record which in any way gives rise to the inference that the order was for any purpose other than that stated by the commanding officer. (Citing CM 236447, Bartlett, 1 BR (ETO) 115; MCM, 1951, par 169b). ACM 9652, Buttrick (1954) 18 CMR 622.

Proof as requiring instructions on the effect of the intent of the person issuing the order on its legality and the sufficiency of the instructions given on this issue, see ACM 9036, Morgan, supra § 19.1.

§ 35.11. Included offenses.

The accused was convicted of willful disobedience of a lawful order of a superior officer. The evidence showed that an officer had restricted the accused to his quarters. The following evening the officer was approached by the accused who claimed to have been attacked by several persons and requested permission to report to the x-ray room. The officer refused his request and ordered him to return to his barracks. The accused refused to do so, stating he would go to the guardhouse before he would go back to his room. The testimony of the accused was substantially in accord with the testimony of the officer. The law officer refused to instruct on the elements of the lesser offense of failure to obey. Held: No lesser offense under the willful disobedience charge was reasonably raised by the evidence. United States v. Sharp (No. 5863), 5 USCMA 580, 18

CMR 204.

§ 35.13. Defenses, generally.

Instructions on exceptions to regulation violated as unnecessary where there is no evidence of an affirmative defense based on such exceptions, see ACM S-9686, Fraser, infra § 51.

35.15. Physical incapacity.

The accused, who had a Class III profile slip indicating that he should not perform field duty in cold weather because of frostbitten feet, refused to obey an order to join his unit out in the field. The accused told his company commander that he "couldn't make him because of his profile." The temperature on the day in question ranged from a low of 36 degrees to a high of 55 degrees and there was no snow fall. The tents in which the men lived were heated and the men had adequate cold weather clothing. Upon cross-examination the accused stated that his feet did not bother him on the day in question and that he hadn't any trouble as a result of frostbite. Held: There was no error on the part of the law officer in failing to instruct the court sua sponte on the defense of physical disability, inasmuch as there was no evidence that the accused actually was physically incapable of obeying the order or that he believed he was so incapacitated. In fact, his own testimony negates physical disability. CM 376074, Breckenridge (1954) 17 CMR 416.

Instructions on insanity as precluding the necessity for instruction on physical incapacity to comply with orders where the physical incapacity is induced by mental condition, see United States v. Latsis, infra § 51.1.

§ 38.1. Generally.

B. EVIDENCE

§ 38. Burden of Proof

Burden of proving accused was not within an exception in the regulation allegedly violated, see ACM 8350, La Cour, supra § 33.9.

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