II. JUDICIAL NOTICE. 5. Generally. EVIDENCE § 11. Laws, Regulations, Etc. V. RELEVANCY, MATERIALITY, COMPETENCY, AND ADMISSIBILITY. § 45. Similar Acts or Facts. § 47. Other Offenses. § 49. Character or Reputation. § 63. Identity. § 69. Illegally Obtained Information. § 71. Acts and Declarations of Accomplices; Convictions. VI. BEST AND SECONDARY EVIDENCE. § 77. In General. VII. HEARSAY EVIDENCE. § 87. Statements Constituting Hearsay. $ 89. Oral Statements. VIII. CONFESSIONS AND ADMISSIONS. B. CRIMINAL PROSECUTIONS; COURT-MARTIAL PRO CEEDINGS. § 115. Several Confessions; Prior Involuntary Confessions. § 117. Admissions, Generally. § 123. Effect Against Other than Person Making Admission or Confession. § 124. Corroboration. § 127. Voluntariness, Generally; Character of Inducement. § 129. Hope of Benefit or Reward; Promise of Immunity. § 131. Use of Force or Fear. § 133. Caution; Failure to Warn of Rights. IX. DECLARATIONS. § 139. In General. § 145. Declarations of Deceased Persons. X. RES GESTAE: SPONTANEOUS EXCLAMATIONS. § 155. In General. XI. TESTIMONY AT FORMER TRIAL OR PROCEEDING. § 165. In General. § 167. Circumstances Justifying Reproduction of Testimony. XII. REAL OR DEMONSTRATIVE EVIDENCE. 183. Photographs. § 187. Comparison of Writings. § 189. Experiments. § 191. Dictaphones or Other Reproduction of Sound. XIII. EXPERT AND OPINION EVIDENCE; CONCLUSIONS. B. EXPERT OR SKILLED WITNESSES. § 203. Qualifications of Witness. § 207. Examination of Witness. XII.-Cont'd C. SUBJECTS OF OPINION EVIDENCE.. § 221. Mental Condition and Capacity. § 225. Character, Reputation, Habits, and Disposition. § 235. Miscellaneous. XIV. DOCUMENTARY EVIDENCE. B. PUBLIC, OFFICIAL, AND MILITARY DOCUMENTS. 1. In General. $257. In General. § 265. Military Records. 2. Particular Documents. § 271. Morning Reports; Service Records. § 275. Absence Without Leave and Desertion Cases. Authentication; Identification. § 297. Death Certificates. $ 315. Miscellaneous. C. MEMORANDA, BOOKS AND ENTRIES MADE OR KEPT IN COURSE OF BUSINESS. § 319. In General. II. JUDICIAL NOTICE § 5. Generally § 5.41. Language; meaning of terms; abbreviations, signs and symbols. The accused was convicted of wrongfully and unlawfully selling codeine cough syrup. The trial counsel asked the court to take judicial notice of the definition of codeine as a habit forming narcotic drug as stated in a specified medical dictionary. The law officer stated that judicial notice would be taken of the definition set forth in the authority cited. The defense counsel asked that the definition be read to the court and was told that the dictionary would be made available to the court. Held: The court could properly take judicial notice of the fact that codeine was a narcotic drug since the term codeine has a universally recognized definition as a habit forming narcotic drug and it is well settled that trial courts may take judicial notice of the meaning of words that have a standard and unvarying definition which may be found in encyclopedias, dictionaries, and other standard publications treating of the subject. (Citing MCM, 1951, par 174a; Wharton's Criminal Evidence 11th ed, vol. 1, sec 50; Hughes v. U. S., 253 F 543; U. S. v. Pisano, 193 F2d 361; Greenberg v. U. S., 285 F 865; State v. Van Vlack, 101 Wash acquiesced in by defense counsel, correctly informed the court that codeine was a narcotic. As the defense counsel joined with the trial 503, 172 P 563). The definition of codeine afforded the court and counsel in the presentation to the court of the definition from the designated text, both trial and defense counsel waived any objection to the text as an authentic source of information. Even if the court had not expressly taken judicial notice that the term codeine denotes a habit forming narcotic drug, the proof of such fact would be sufficient since the recognition of such fact may be imputed to the court through the process of judicial notice. (Citing U. S. v. Weiman and Certok (No. 1403), 3 USCMA 216, 11 CMR 216; U. S. v. Jones (No. 288), 2 USCMA 80, 6 CMR 80; Felden v. Horton and Coleman, 135 SW2d 1115; Buhrkuhl v. F. T. O'Dell Construction Co., 95 SW2d 843, affd 340 Mo 1155, 104 SW2d 671; Kaolatype Engraving Co. v. Hoke, 30 F 444.) ACM 10261, Simmons (1955) 19 CMR § 5.65. Rotation of personnel. Judicial notice as to rotation program for persons serving in Korea, see United States v. Jester, infra § 167.5. § 11. Laws, Regulations, Etc. § 11.13. Service manuals. Judicial notice of Technical Manual 8-240, Psychiatry in Military Law, see United States v. Smith, DEFENSES § 35.3. V. RELEVANCY, MATERIALITY, COMPETENCY, § 45.1. Generally. § 45. Similar Acts or Facts The accused was convicted of larceny. His roommate's camera, which had been taken from their room, was discovered in a pawnshop with a tag bearing the accused's name affixed to it. The bill of sale executed at the time of pawning, which bore the accused's purported signature, was received in evidence and a handwriting expert who compared the signature with exemplars of the accused's signature, testified that it was the accused's writing. The accused testified that when the camera was taken from the room some papers of his were taken which bore his signature. The defense endeavored to present testimony of other airmen who had undergone similar experiences and made an offer of proof to the effect that in the cases of two of the airmen there had been specific negative identification on the part of the pawnshop clerk and in each case some type of identification had been discovered missing by the airmen involved. The law officer refused to receive the evidence. Held: Ordinarily, the fact that others may have committed crimes of a similar nature is irrelevant and inadmissible unless the accused establishes a logical connection between the commission of such other crimes and the offense with which he is charged (22 CJS, Criminal Law, sec 622, p 952 and authorities cited therein). Nor is it relevant for the accused to show that other persons have committed like offenses and gone unpunished (City of Montrose v. Price, 69 Colo 535, 196 P 863; Leslie v. State, 155 Ark 526, 245 SW 318); that offenses of the same general category occurred in the same locale after the accused was arrested (Norris v. State, 170 Ark 484, 280 SW 398; Vickers v. State, 90 Tex Cr R 609, 236 SW 483); or disconnected or remote facts (State v. Ceresa, 92 Vt 190, 102 A 1040; Springer v. State, 129 Ark 106, 195 SW 376). The reason for the above limitations being that such evidence does not tend to rebut the accused's guilt in any fashion. However, in this case the refusal to permit the accused to present the desired evidence was error. The evidence offered herein would tend to rebut the accused's guilt. There appears more than a mere similarity of crimes as to the type of offense involved. The offer of proof reflects a similarity of time, locale, and modus operandi. It shows that other airmen had been suspected like circumstances and that subsequent investigations had established not only their lack of complicity, but that their signatures had been forged and that they had recently suffered the loss of some form of personal identification. (Citing U. S. v. Allen (No. 1029), 2 USCMA 266, 8 CMR 67; State v. Bock, 229 Minn 449, 39 NE2d 887; Commonwealth v. Murphy, 282 Mass 593, 185 NE 487; Commonwealth v. Loomis, 270 Pa 254, 113 A 428; Wigmore on Evidence, 3d ed, sec 304.) Held also: The error was prejudicial since the evidence relied upon by the prosecution was circumstantial in nature and the connection of the accused with the theft was established primarily through the testimony of the handwriting expert. Furthermore, the testimony of the handwriting expert was badly shaken on cross-examination when he was unable to distinguish the accused's signature from duplications thereof by defense witnesses. Under such circumstances the defense evidence would have been most relevant. ACM 8856, Skeen (1954) 16 CMR 754. § 47.1. Generally. § 47. Other Offenses The accused was found guilty of wrongful possession of narcotics. A raid on a narcotics cell resulted in the apprehension of a number of suspects one of whom identified himself with the accused's name and organization. When a search disclosed a packet, later shown to contain a morphine compound, this suspect broke away and eluded the agents by running through a partially filled sewage ditch. When the agents went to the area of the organization the suspect had named they found the accused and immediately identified him as the suspect. The accused denied being involved in the raid and explained his wet and dirty condition when apprehended by stating he had dropped his cap in muddy water and attempted to dry it by rubbing it on his trousers. On cross-examination he was asked if he had been apprehended in the same area previously. Upon his denial an agent was brought before him and the accused denied having seen him before but he then began hedging in his answers and stated that he had been picked up many times before. The agent then took the stand and testified that he had on a prior date apprehended the accused coming out of the same narcotics cell. The law officer instructed that the evidence of the prior incident was admissible only for impeachment purposes and that the court could not consider it on the issue of guilt or innocence. Held: The error, if any, in admitting the evidence of the prior incident was harmless. The court was specifically instructed that the questioned testimony was being admitted in evidence solely for the purpose of impeaching the credibility of the accused and that it had nothing to do with his guilt or innocence. Moreover, the evidence of guilt is so compelling that any reason able person would find against the accused and his own testimony was so inconsistent, unbelievable and contradictory and that he destroyed any vestige of confidence in himself. United States v. Williams (No. 5228), 5 USCMA 406, 18 CMR 30. Evidence of acts of misconduct or other offenses subsequent to alleged desertion as competent on question of intent to desert service, see ACM 8966, Goad, DES § 49.7. § 49.1. Generally. § 49. Character or Reputation The accused was found guilty of desertion. On the trial the defense introduced evidence consisting of service record entries showing the term of the accused's enlistment, an authorized leave from which he returned, an authorized leave from which he did not return and which formed the basis for the present charges, his authorization to wear the Korean Service Medal with two engagement stars, his service in combat zones on five different occasions, and that he had left his gear aboard his ship. In rebuttal, prosecution evidence was received showing six mast punishments and one summary court-martial. Held: The defense evidence was offered for the purpose of negating the element of intent to desert and was not offered for the purpose of injecting the military character or standing of the accused in issue. Accordingly, since the defense evidence did not place in issue the general military character or standing of the accused, the rebuttal evidence offered by the prosecution which was admittedly derogatory in character could only have the effect of creating prejudice in the minds of the members of the court. Nor could the purported evidence in rebuttal properly be admitted for limited purposes-generally restricted to establishing knowledge, intent or design of the accused. (Citing U. S. v. Jones (No. 288), 2 USCMA 80, 6 CMR 80; MCM, 1951, par 138f.) Held also: Since the accused pleaded guilty to the lesser included offense of unauthorized absence the error may be purged by affirming a conviction for that offense and a sentence commensurate therewith. NCM 322, Charlton (1954) 16 CMR 384. After objecting to the testimony of prosecution witnesses as to the accused's bad character based upon specific acts of misconduct, the defense, nonetheless, cross-examined these witnesses and recalled the accused to the stand to refute them. Held: The defense was not bound to rely on its objection and did not by its conduct subsequent to the objection waive the right to have the law officer's ruling on the admissibility of the witnesses' testimony reviewed on appeal. Held also: Nor did the defense waive the right to have the law officer's admissibility ruling reviewed on appeal by the failure to enter a motion to strike the offending testimony, since an objection to the admissibility of the testimony had already been overruled and a motion to strike would undoubtedly have also been denied. United States v. Haimson (No. 4549), 5 USCMA 208, 17 CMR 208, affirming CM 365145, Haimson, 14 CMR 268. |