§ 43.1. Generally. § 41. Weight and Sufficiency § 43. - Willful Disobedience The accused was convicted of willful disobedience of a superior officer. The officer involved testified that he noticed the accused leaving his ship and ordered him to go back. The accused did not comply and when the officer ordered him back to the ship a second time he addressed the officer by name and asked him if he was going to try and stop him. The officer testified that there was sufficient light for the accused to see him plainly. Held: The evidence is sufficient to establish the accused's willful disobedience of an order which he understood and which emanated from an officer whom he recognized and whom he in effect challenged. NCM 366, Parrack (1954) 17 CMR 531. § 45. Failure to Obey General Order or Regulation § 45.1. Generally. The accused was found guilty of violation of a base regulation providing that squadron commanders would be responsible for the collection, registration and storage of privately owned weapons of personnel residing in the barracks. A knife had been found in the accused's personal effects in the barracks. Held: The evidence is insufficient to establish a violation of the regulation. The evidence proves that the accused was found in possession of a knife which should have been registered but the regulation does not indicate that possession of weapons is a violation. The regulation merely imposes on commanders the duty to collect, register and store weapons. (See ACM S-6557, Kayes, 11 CMR 878; ACM S-3629, Slater, 5 CMR 656.) ACM S–9649, Bennington (1954) 17 CMR 682. The accused was convicted of violating a general order contained in the Bureau of Supplies and Accounts Manual of 14 February 1946 which prohibited the resale of items purchased in a ship's store. The violations allegedly occurred during the period from 1 March 1952 to 1 September 1952. Held: The board of review takes judicial notice that the Bureau of Supplies and Accounts Manual of 14 February 1946, prior to change 36 effective 25 March 1953, contained no prohibition against resale of items purchased from a ship's store. Therefore, the finding of guilty of the specification cannot stand. An accused cannot be held for violation of an order not in existence at the time he acted. Furthermore there is no evidence in the record except extra-judicial statements of the accused himself to show that the items involved came from the ship's store facilities. (See U. S. v. Isenberg (No. 579), 2 USCMA 349, 8 CMR 149.) NCM 357, Roseberry (1954) 17 CMR 493. [See 11 Am Jur, Constitutional Law §§ 348 et seq; 20 Am Jur, Evidence $484.] The accused was found guilty of violating a general order requiring the exchange of United States currency for Military Payment Certificates within 48 hours after arrival in a country where such certificates were used. The evidence showed that a sum of United States currency was found in the accused's possession after he had been in Japan for several months. The order did not prohibit the possession of currency which might be received after the required exchange had been made and the accused testified that he acquired the currency in question just the night before it was discovered in his possession when he exchanged Military Payment Certificates for it in order to accommodate another man who had converted his own Military Payment Certificate into currency in in preparation to return to the United States but who, because of a delay in his departure and the closing of the money exchange, was without usable funds. Held: The arrangement made with the other man may have constituted a violation of some unknown regulation not brought to the attention of the Board of Review, but since the accused was not charged with such an offense the findings of guilty must be set aside. NCM 357, Roseberry (1954) 17 CMR 493. The accused, a pilot, was convicted of entering IFR flight conditions while cleared on a VFR flight plan in violation of Op Nav Instruction 3710.7, par 47e, which provides that when certain conditions are encountered the pilot will (1) alter course to maintain VFR minimums, or (2) remain VFR and, if pilot possesses valid instrument rating, obtain change of flight plan from competent authority to conduct flight under IFR, or (3) land at the nearest suitable airport. The accused was cleared for only the one hour and twenty minutes of daylight left at the time of takeoff. At about the halfway point conditions were encountered which required action under the above instruction. In an attempt to comply with the first alternative of the instruction, the accused tried to turn away from the weather but flew into IFR conditions. He then decided to land at the nearest airport under the third alternative and he made two calls to the airport 10 to 30 seconds apart. He stated he intended to file as IFR under alternative two. When he received no reply to his calls he put the plane into a climb and ordered a bail out. During the four-minute interval of the climb no further calls were attempted and no attempt was made to use any other radio frequency. In his instructions the law officer set out the Op Nav Instruction allegedly violated verbatim. He then informed the court that it must find that the instruction was in effect on the date in question and was a general regulation, that at the time and place and in the manner alleged the accused violated the instruction and that he knew of the instruction. Held: The accused's attempt to turn away from the weather did not comply with the first alternative of the cited instruction since it failed to maintain a VFR condition and, furthermore, the daylight flying time available would have run out before any field could have been reached. Regardless of the outcome of this maneuver additional action was required by the instruction. With respect to the additional action taken by the accused, it did not comply with the words nor the intent of the instruction, either as to landing at the nearest airport or obtaining a change of flight plan to conduct a flight under IFR. Two attempts 10 to 30 seconds apart and on the same frequency to contact the tower by radio followed by a rapid climb and a blind bail out at night did not constitute and compliance, however remote, with the instruction set out above. Held also: The instructions were not inadequate on the ground that the law officer failed to instruct there would be conditions under which the pilot would be justified in breaching the instruction and, if such conditions did exist, the court should acquit the accused. The Op Nav Instruction alleged in the specification was quoted in total and its requirements set forth in plan language. The accused presented no defense of an emergency condition justifying his actions other than the fact that he was faced with instrument flying conditions. His possible courses of action were plain and he made no bona fide attempt to pursue any of them. There was no possibility that the court would be misled by the instructions given. Moreover, at the trial no request was made for additional instructions and if the instructions given were not clear the accused cannot complain because he failed to make any appropriate request. (Citing U. S. v. McIntyre (No. 706), 2 USCMA 559, 10 CMR 57.) NCM 371, Ricci (1954) 18 CMR 375. Elements of offense of wrongfully entering an off-limits establishment as requiring evidence that competent authority put establishment off-limits, see ACM 10447, Holstrom, supra § 35.3. § 45.3. Proof of corpus delicti. The accused was convicted of violating a general regulation by purchasing certain Air Force exchange items for the purpose of resale to persons not authorized to make exchange purchases. A pretrial statement was admitted in evidence in which the accused admitted engaging in black market activities. Aside from the accused's statement, the evidence showed the purchase of sixteen watches and five radios over a 60-day period. The sales slips for the purchases were also introduced in evidence and a number of them bore the name and organization of the accused, but some were purportedly signed in another name which was similar to the accused's. Exemplars of the accused's handwriting were in evidence and a handwriting expert stated that the signatures on the sales slips were made by the same person. A Japanese national testified that he had never been authorized to buy exchange items and that he had bought a few exchange items from the accused. However, he maintained he had never purchased any of the items involved in the charges herein. Held: The evidence apart from the accused's pretrial statement was sufficient to establish the corpus delicti of the offense charged. From the number of his purchases, it is a fair conclusion that some were not for the accused's own use. Also, the fact that the accused had sold some items to a Japanese national, although not the items involved in the specifications, is evidence tending to establish his purpose in making the purchases. Furthermore, his falsification of his name and organization on a number of the sales slips justifies an inference that he had a guilty purpose in making the purchases. United States v. Landrum (No. 4478), 4 USCMA 707, 16 CMR 281, reversing ACM 7733, 14 CMR 827, digested in 3 Dig Ops, DISOBED $ 45.3. § 47. Failure to Obey Other Orders § 47.3. Proof of corpus delicti. Necessity that accused be connected with offense to establish corpus deliciti, see ACM S-9659, Kruger, EVID § 124.7. § 49.1. Generally. § 49. Dereliction of Duty The accused was found guilty of dereliction of duty by failing to maintain an alert and responsible watch at the officer of the day's office. The evidence showed that he called the Waves barracks and spoke to the girl in charge and sought permission for a female companion to stay there for the night. He threatened to place the Wave on report unless she complied with his request. He then called the chief on duty as assistant officer of the day for the same reason and was again refused. Subsequently he went to the officer of the day's office and told the chief on duty that he was standing by for the man who was supposed to relieve him and that he was then ready to relieve him although it was over an hour early. While on this watch the accused went to the Waves barracks to exert his authority. Held: The evidence is sufficient to show that the accused had left his post and, in attempting to retaliate for the refusal by a Wave of permission for a female civilian to spend the night in the Waves' barracks, did not in fact maintain an alert and responsible watch and was, therefore, derelict in the performance of duties he had entered into by misrepresentations. NCM 354, Stuart (1954) 17 CMR 486. § 51. Knowledge of Order or Regulation; Status § 51.1. Generally. The accused was convicted of violating a regulation limiting travel on a Class A Pass to a radius of 100 miles of his base. The regulation pertained to surface travel only. In proof of constructive knowledge of the regulation it was shown that each new arrival to the unit was briefed on the limitations on the Pass and the Standing Operating Procedure which referred to such limitations was posted on the bulletin board and each new arrival was required to read the SOP's and state he understood them. A map showing the distances was also posted in the orderly room. Held that: - testimony of the accused that he did not know of the regulation is insufficient to rebut the prima facie case establishing his constructive knowledge of the regulation since the accused was a member of the class of persons which ought to have known of its existence. Furthermore, his own testimony that he knew he should have read the policy book but that he did not and that he knew of the map but never examined it shows that any absence of knowledge was due to his own failure to comply with regulations re quiring him to keep informed. Also, it was within the province of the court to reject his testimony that he did not know of the regulation even though there was no evidence refuting his testimony. (Citing ACM S-7959, Sanders, 14 CMR 889; ACM 8038, Wolfrey, 15 CMR 768; U. S. v. Schuller (No. 1599), 2 USCMA 611, 10 CMR 109.) - it was not incumbent on the prosecution to establish that the accused was not excepted from the provisions of the regulation in question since any accused charged with a violation of the regulation would know very well how he accomplished the travel and since his mode of travel would be a matter peculiarly within his own knowledge it would not be a hardship to require the accused to set up his own affirmative defense of coming within the exception, if, for example, he made the travel by air rather than surface. (Citing U. S. v. Gohagen (No. 858), 2 USCMA 175, 7 CMR 51; U. S. v. Ford (No. 2194), 4 USCMA 611, 16 CMR 185; McKelvey v. U. S., 260 US 353, 67 L ed 301, 43 S Ct 132; Morrison v. California, 291 US 82, 78 L ed 664, 54 S Ct 281. Distinguishing ACM 8350, Lacour, 17 CMR 559.) neither was the president required to instruct the court that unless the prosecution had established that the accused had used surface transportation in traveling more than 100 miles from his base the accused would not be guilty of violating the regulation. If the accused had offered as an affirmative defense that he had accomplished the travel complained of by means other than surface transportation then the president would have been required to instruct on the necessity of the prosecution proving surface transportation. However, inasmuch as no suggestion of any such affirmative defense was offered at trial the manner or mode of transportation was not put in issue and it was thus not an essential ingredient of the offense and no instructions thereon were required. (Citing U. S. v. Eagleson (No. 2353), 3 USCMA 685, 14 CMR 103; U. S. v. Russell (No. 2652), 3 USCMA 696, 14 CMR 114.) ACM S-9686, Fraser (1954) 17 CMR 790. [See 27 Am Jur, Indictments and Informations §§ 106, 107.] The accused was convicted of willful disobedience of an order of a superior officer. A few days prior to the incident he had been examined by a psychiatrist for combat precipitated disorders and was found fit for combat duty. On the date in question a few rounds of enemy mortar fire fell in the platoon area. Just prior to the enemy action the accused had been talking normally with another man but when the shelling began he put on a helmet and flak jacket, picked up his rifle and loaded it and then lay on a bunk. This took place in the command post bunker. After the shelling, the platoon commander left the command post to check the men in the trenches and when he realized the accused was not with his platoon, he telephoned to the bunker and told the operator to notify the accused he was to come to the forward trench line. The operator shook the accused and repeated the order several times but received no positive response. When the commander returned to the command post the |