fore excessive and unlawful force was used by the air police they became the aggressors and themselves could not plead self-defense and the accused could lawfully use equivalent force in repelling the same. (See CM 364839, Barker, 12 CMR 244; ACM 6653, Mercer, 11 CMR 812, 820; CM 352269, Holsey, 4 CMR 199, 200; CM 348935, Amdahl, 2 CMR 406, 414; U. S. v. Weems (No. 2072), 3 USCMA 469, 13 CMR 25.) The condition of a person subsequent to an affray may be considered in determining whether he was assaulted (ACM 6653, Mercer, 11 CMR 812, 819). A fortiori, conduct of an alleged assaulter subsequent to the affray may be similarly considered. Applying this principle to the instant case, the fact that the accused was struck with a club despite the availability of overpowering manpower and the fact that he was literally carried out of the air police headquarters although he was able to walk and the fact that he was struck in the eye when he went to move his arm indicate that the air policemen were generally in a mood and disposed to use excessive force and this tends to support the accused's version that they had previously done so. It has been held that where one participant in an affray was much larger than another participant, this fact may be considered in determining the issue of self-defense. A fortiori, the fact that those arrayed against the accused were numerous and openly armed, while the accused was alone and obviously unarmed, may be similarly considered. This factor tends to lend credence to and corroborate the accused's claim of self-defense. (Citing CM 361862, Hamm, 10 CMR 209, 212; CM 362527, Harris, 10 CMR 349; U. S. v. Weems (No. 2072), 3 USCMA 469, 13 CMR 25, 27.) [Pettoruto, J. A., dissenting, states that the evidence did not raise the issue of self-defense and, on the contrary, showed that the accused was an aggressor and used force against the air policemen where it was not necessary, or at least, where he had no reasonable grounds for believing it was necessary for his own protection.] ACM S-10307, Slaughter (1955) 18 CMR 844.

[See 4 Am Jur, Assault and Battery §§ 38 et seq.]

He

The accused was convicted of assault with a means likely to produce grievous bodily harm. In the course of a dice game in the accused's room, the victim denounced the accused for cheating. grabbed some money from the accused's hand and turned to leave. According to the victim the accused followed him to the door and swung cutting him with a straight razor. According to the accused, after the victim grabbed the money, he tried to recover some of it at which point the victim pulled a knife and feinted at him. He then pulled out his straight razor and struck the victim in self-defense. The court was instructed that a person may lawfully meet force with a like degree of force in protecting himself, but that a person may use force likely to result in grievous bodily harm only when retreat is not reasonably possible or would endanger his own safety, or when he is in his own home or at a place of duty where he is required to remain. Further, to avail himself of the right to use force in defense of himself the person must not have been the aggressor or intentionally provoked the altercation with the victim; but, if after provoking a fight, the person withdraws in good faith and his adversary follows

and renews the fight, he is no longer the aggressor and may avail himself of the right of self-defense. The court was further instructed that the burden was on the prosecution to establish the accused's guilt beyond a reasonable doubt and that self-defense was a complete excuse for assault and consequently unless the court was satisfied beyond a reasonable doubt that the accused did not act in self-defense, it must find him not guilty. Held: Assault involving homicide or great bodily harm is excusable when predicated upon the actuality or reasonable belief on the part of the assailant that he is himself in imminent danger of death or great bodily harm. (Citing U. S. v. Brown, 256 US 335, 65 L ed 961, 41 S Ct 501, 18 ALR 1276; ACM 9746, Thomston, 18 CMR 836; U. S. v. Troglin (No. 1960), 3 USCMA 385, 12 CMR 141.) However, the rule that, assuming danger is imminent, before a killing can be excused as a basis for self-defense, the killer must assume the duty to retreat and that such duty is measured by the force and imminence of the danger and the availability of an opportunity by which the accused may retreat reasonably without increasing his peril, is applicable to the law of assault. (Citing U. S. v. Troglin (No. 1960), 3 USCMA 385, 12 CMR 141; ACM 9746, Thomston, 18 CMR 836.) The instructions herein were sufficient and did not mislead the court by stressing the duty to retreat and ignoring the defense theory that the accused believed himself in imminent peril of grievous bodily harm or death. Although the instructions could have been more full and definitive so as to pinpoint the defense trial theory, request for clarification and extension in that regard was the duty of defense counsel, absent which prejudicial error will not be presumed. ACM S-10760, Forte (1955) 19 CMR

[See 4 Am Jur, Assault and Battery §§ 38, 47.]

Sufficiency of evidence to raise issue of self-defense so as to require proper instructions thereon, see United States v. Wilson, supra, § 49.1.

§ 69. Findings

§ 71.

Exceptions and Substitutions

§ 71.5. Manner of assault, generally.

A specification alleged that the accused, did, "unlawfully grasp Lieutenant on the throat with his hand . . ." The court found the accused guilty of a consummated assault but excepted the words "grasp" and "on the throat with his hand" and substituted therefor the words "charge and flail" and "with his hands." Held: The substituted findings in no way changed the nature or identity of the offense, nor increased the amount of punishment imposable, and, therefore, were authorized under par 74b (2), MCM, 1951. Furthermore, the accused was not misled and he was fully protected against another prosecution for the same offense. (Citing ACM 2413, 2d trial, White, 4 CMR (AF) 201, 210; U. S. v. Hopf (No. 372), 1 USCMA 584, 5 CMR 12, 14. Distinguishing CM 201377, Overdier, 5 BR 103, 104; CM 340162, Bonventre, 6

BR-JC 29, 31; CGCM 9748, Leslie, 2 CMR 622; CM 357442, McCue, 7 CMR 231.) ACM 8803, Berry (1954) 16 CMR 842.

§ 71.7. Type or nature of weapon used.

Excepting words "by shooting at him" with respect to a specification alleging an assault upon an officer "by shooting at him with a dangerous weapon, to wit: a rifle," see ACM 8803, Berry, infra § 89.1.

§ 75.1. Generally.

§ 75. Sentence and Punishment

The accused was found guilty of a violation of Article of War 64 by striking a superior officer who was in the execution of his office. The offense occurred while the accused and the officer were in a communist prison camp in North Korea. On the basis of the findings and Executive Order 10149, 8 August 1950 (15 Fed Reg 5149, 10 Aug 1950), which suspended the limitations on punishment for violations of Article of War 64 in those cases where the offense was committed by persons under the command of, or within any area controlled by, the Commander in Chief, Far East, the law officer instructed that the maximum punishment was death. The accused had been dropped from the rolls of his organization as missing in action and his papers had been forwarded to The Adjutant General pursuant to provisions of regulations then in effect which required such action thirty days after his organization became aware of his status. Held: The administrative procedure providing for the dropping of the accused from the rolls of his organization and forwarding his papers to The Adjutant General had as its primary purpose the relief of combat elements from accounting responsibility for their personnel who were reported missing in action, captured, or absent without proper leave. Such administrative action did not affect the command status of the accused nor in any way operate to divest the Commander in Chief, Far East, from command over the accused, while the latter remained a prisoner of war in the theater of operations commanded by such officer. Consequently, the law officer's advice concerning the maximum sentence was correct. CM 374314, Floyd (1955) 18 CMR 362.

The accused was charged with an assault upon a certain officer "by shooting at him with a dangerous weapon, to wit: a rifle." By excepting the words "by shooting at him," the court found the accused guilty of an assault with a dangerous weapon, to wit: a rifle. There was evidence that after first assaulting the alleged victim, the accused stated that he would "get something to fix" the victim. The victim, in fear of the accused, thereupon retreated to his home. The victim and his wife saw the accused leave his home

and approach their home. While the victim's wife was calling the police for protection, a shot was fired through the door of their home. Held: The act of the accused in deliberately and intentionally shooting through the door of the victim's home, wherein the victim, his wife, and child were present, with the full knowledge of the accused, was a culpably negligent act which might foreseeably, and actually did, cause the victim to fear that force would at once be applied to his person, hence, constituted aggravated assault. (Citing MCM, 1951, pars 207(a), 207b (1).)

Held also: The exception by the court did not result in findings of guilty of an offense not charged, inasmuch as the assault found by the court is the assault averred in the specification, there was no change with respect to the means alleged or the person allegedly assaulted, and the accused would be protected from further prosecution for the same acts. (Citing U. S. v. Hopf (No. 372), 1 USCMA 584, 5 CMR 12; ACM 7858, Neal, 14 CMR 873; U. S. v. Norton (No. 98), 1 USCMA 411, 4 CMR 3, 7; U. S. v. Wright (No. 1081), 1 USCMA 602, 5 CMR 30. Distinguishing ACM 4860, Jones, 5 CMR 507.) was of no consequence that under the specification used in this case, the prosecution could properly utilize several theories to establish the accused's guilt, among them the theory of assault based upon a culpably negligent act and the theory of assault predicated on an intent to do bodily harm, nor was it of any consequence upon which of the alternative means included within the original charge the court predicated its conclusion. (Citing People v. Sullivan, 173 NY 122, 65 NE 989; Burton v. U. S., 151 F2d 18; State v. Souhrada, 204 P2d 796; U. S. v. McDonald (No. 2572), 4 USCMA 130, 15 CMR 130; and other authorities.) ACM 8803, Berry (1954)

16 CMR 842.

BURGLARY

§ 17. Evidence, Weight and Sufficiency

§ 17.5. Proof of corpus delicti.

The accused was convicted of burglary with intent to commit larceny. The evidence showed that an occupant of the nurses' quarters locked her doors prior to retiring. She was awakened in the night by a man in her room. A figure in fatigues, minus a hat, was observed fleeing from the nurses' quarters. A cap identified as the accused's, was found in the room in question. The accused confessed to breaking and entering the nurses' quarters with intent to steal. Held: The common experience of mankind is that unlawful breaking and entering the dwelling of another in the nighttime is usually done with an intent to commit larceny. Therefore, evidence of an unlawful breaking and entering, in the absence of negating circumstances, justifies a strong inference that such breaking and entering were done with an intent to steal. As there are no peculiar circumstances in the instant case that negative such intent, the necessary corroborative evidence was present to establish the probability of the commission of the alleged offense and permit the receipt into evidence of the accused's confession. (Citing MCM, 1951, par 154a (1), p 294; Ex parte Seyfreid, 264 P2d 685; State v. Worthen, 11 Iowa 267, 82 NW 910; Moseley v. State, 92 Miss 240, 45 So 833; State v. McBryde, 97 NC 393, 1 SE 925; Cady v. U. S., 293 F 829; Smith v. State, 51 Tex Crim Rep 427, 102 SW 406; State v. Woodruf, 225 NW 254; 9 Am Jur, Burglary sec 61.) ACM 9658, Morris (1954) 18 CMR 665.

See ACM 8939, Coppitt, infra § 17.7.

$17.7. Attempts.

The accused was found guilty of attempted burglary with intent to commit larceny. The building allegedly involved was the dwelling of two female officers and was located in the Women's Compound at a certain air base. A sergeant planted as a stakeout in the Women's Compound to watch for prowlers observed an airman, later identified as the accused, walking through the compound one night. He saw the accused withdraw a belt from his pocket and string it through the buckle and put it on his hand. The accused proceeded directly toward the rear of the dwelling house and when he arrived at a point approximately three feet from the door the sergeant seized him. The following day the accused made a written statement in which he admitted that while passing through the Women's Compound on the night in question he decided to stop and steal a bottle of whiskey from the Women's Quarters. Held: Applying the rule that before confession is admissible it must be corroborated by some evidence that the offense charged has probably been committed, the evidence in the instant case is too remote to furnish a proper basis for an inference that the accused probably entertained the required intent and thus the accused's statement was inadmissible. Α man approaching the rear of a dwelling in the nighttime may be