intent on larceny, but he might also be intent on any of several other offenses, and, without a more positive indication than is reflected by the evidence herein, his true state of mind is left to mere conjecture. (Citing MCM, 1951, par 140a; U. S. v. Isenberg (No. 579), 2 USCMA 349, 8 CMR 149; U. S. v. Manuel (No. 2638), 3 USCMA 739, 14 CMR 157; U. S. v. Petty (No. 2155) 3 USCMA 87, 11 CMR 87.) Held also: An overt act, as well as criminal intent, is essential to an attempt to commit an offense under UCMJ, Art 80. The rule in the military is that the overt act must constitute more than mere preparation and be a direct movement towards the commission of the offense. (Citing MCM, 1951, par 159; State v. Hurley, 79 Vt 28, 64 A 78; Bishop's Criminal Law, vol 1, sec 728; People v. Sullivan, 173 NY 122, 65 NE 989; People v. Sobieskoda, 235 NY 411, 139 NE 558; People v. Hickman, 31 CA2d 4, 87 P2d 80; State v. Taylor, 47 Ore 455, 84 P 32; Gregg v. U. S., 113 F2d 687; ACM 8212, Cascio, 16 CMR 799; ACM 8816, Emerson, 16 CMR 690.) The evidence in the instant case is insufficient to show an overt act necessary for the offense of an attempt. The accused had approached to a point from which it would have been possible to plan and initiate an attack upon the building involved. However, when apprehended he had not yet reached the building and had not touched it or in any way attacked the barrier which it presented. There is no evidence that he had so much as lifted a hand in its direction or that he had even begun to reconnoiter or inspect it. (Cf. People v. Davis, 24 CA2d 408, 75 P2d 80; People v. Sullivan, 173 NY 122, 65 NE 989.) ACM 8939, Coppitt (1954) 17 CMR 672. CHARGES AND SPECIFICATIONS I. IN GENERAL. § 7. Correction, Redrafting and Amendment. III. JOINDER OF PERSONS AND OFFENSES. § 31. Joinder of Offenses; Multiplication. § 34. Offenses Arising Out of Same Transaction. IV. ACTION UPON CHARGES. § 37. In General. § 41. Investigation of Charges. § 45. Reference to Staff Judge Advocate or Legal Officer. I. IN GENERAL § 7. Correction, Redrafting and Amendment § 7.1. Generally. Convening authority as not accuser by reason of returning charges not supported by the facts and directing redrafting, see ACM 9243, Archuleta, CRT-M § 4.3. Right to amend specification as to time of offense as depending upon whether time was of the essence of the offense in question, see United States v. Brown, CONDUCT, ETC § 36.5. § 9.1. Generally. § 9. Withdrawal of Specifications See Defenses § 23.3. III. JOINDER OF PERSONS AND OFFENSES § 27. In General § 27.25. Election of charges. A specification alleged in general terms that the accused, in conjunction with three others, committed rape. The prosecution evidence showed that the accused first started to have intercourse with the victim and then desisted and attempted to persuade his companions to leave the victim alone, but that he was driven off and one of his companions subsequently had intercourse with the victim with the aid of another of his companions. The defense moved to compel the prosecution to elect which act it desired to treat as the act charged, that is, whether the prosecution desired to charge the accused as a common-law principal based on the first transaction or whether it chose to charge the accused as an aider and abettor based on the second transaction. The motion was denied. When charging the court on the elements of the offense the law officer specified that to find the accused guilty it must find that the accused had sexual intercourse with the victim and the act was accomplished by force and without her consent. No instruction relative to complicity as an aider or abettor was given. Held that: — if evidence of legally severable acts is offered by the prosecution in support of a general allegation, the prosecution should be restricted to proof of one of them as the offense charged, and the court restricted to that one in predicating findings of guilty, particularly where the defense requests that the law officer require election. Otherwise, an accused could be found guilty because the court membership believes him guilty of different offenses, some of the court members of one offense and some of another offense, without full concurrence by the proper majority on either offense. (Citing 23 CJS, Criminal Law, see 1044b (2), pp 433, 434; Johnson v. State, 45 SW2d 989, 119 Tex Crim 510; CM 323470, King, 72 BR 247; CM 239332, Lewis, 2 BR (ETO) 23, 29; CM 299159, Wilson, 20 BR (ETO) 67, 69; ACM S-3839, Henry, 7 CMR 680, 682.) while the defense is entitled to have the court restricted to one of the offenses proved as the offense charged, it does not follow that evidence of the other offense is irrelevant or immaterial. However, evidence of the other offense should be limited in materiality and relevancy insofar as it tends to corroborate the offense charged, i.e., identity of the accused as perpetrator, guilty knowledge or intent, or to negative any claim of accident or mistake made by the accused. (See MCM, 1951, par 138g.) any error caused by failure to require the prosecution to elect which act of rape it regarded as the offense charged was vitiated by the law officer's instructions since the instructions effectively limited the court to the first act of rape proved and in law restricted the court to a determination that if the accused was not guilty as a common-law principal as the perpetrator of the act, in person, he should be acquitted. (Citing Johnson v. State, 45 SW2d 989, 991, 119 Tex Crim 510, and cases cited; 23 CJS, Criminal Law, sec 1044b (2); U. S. v. Marshall and Shelton (No. 548), 2 USCMA 54, 6 CMR 54; see also dicta in U. S. v. Guest (No. 1544), 3 USCMA 147, 11 CMR 147, 151.) ACM 8408, Everett (1954) 16 CMR 676. [See 27 Am Jur, Indictments and Informations §§ 133-135; 44 Am Jur, Rape § 119.] On a trial for rape, the alleged victim testified that one E. had intercourse with her against her will and that the three accused had assisted E. by holding her and cutting off her clothes. She also testified that after E. had been pulled away from her by one of the accused, the accused D. had intercourse with her while the other two accused, H. and G. held her. Held: The circumstances herein establish a common design and concert of purpose by the three accused and their co-actor E. to bring about forcible intercourse by one or more of them with the complainant. Under such circumstances there is but a single criminal transaction embraced in a common venture and in view of UCMJ, Art 77, making an aider and abettor guilty as a principal in the commission of a joint offense, no election was required between the two acts of intercourse. It is immaterial that the findings do not disclose a concurrence among the members of the court on a particular act as the basis for the findings. It is sufficient that each accused is found guilty of a single joint offense. (Citing McManus v. State, 297 P 830; Watson v. State, 197 SW2d 802; People v. Fontana, 32 P2d 160; Peterson v. State, 116 Neb 268, 216 NW 823; U. S. v. Riggins (No. 1641), 2 USCMA 451, 9 CMR 81; cf. ACM 8408, Everett, 16 CMR 676.) ACM 8768, Doyle, Hain & Gaskey (1954) 17 CMR 615. [See 27 Am Jur, Indictments and Informations § 133; 44 Am Jur, Rape $$ 33, 119.] See also ACM 8900, Radford, SODOMY § 9.1. § 34. § 31. Joinder of Offenses; Multiplication § 34.1. Generally. Offenses Arising Out of Same Transaction The accused was convicted of desertion with intent to shirk important service and missing movement through design on evidence showing that after being informed of the date of departure of his ship, the accused went on liberty from which he did not return until after the ship had departed. The court imposed a sentence which included a bad conduct discharge, partial forfeiture, and confinement for eighteen months. In the post-trial review the legal officer called attention to the question of multiplicity and recommended reduction in sentence. On the basis of that recommendation, the reviewing authority reduced the period of confinement by six months. Even assuming multiplicity, a finding of guilt can properly be returned on each of the multiplicitous charges. Multiplicity affects only the sentence. Here the action of the reviewing authority removed the effect of any possible prejudice resulting from multiplicity. (Citing U. S. v. McComick (No. 895), 3 USCMA 361, 12 CMR 117; U. S. v. Crusoe (No. 2780), 3 USCMA 793, 14 CMR 211.) States v. Dandaneau (No. 5156), 5 USCMA 462, 18 CMR 86. § 37.1. Generally. IV. ACTION UPON CHARGES § 37. In General United Verbal reference for trial as sufficient, see CM 369622, Petro, CRT-M $ 3.5. § 37.51. Direction that case be treated as not capital. With respect to the alleged offense of sleeping on post during time of war, the accused pleaded guilty and the law officer accepted the plea and instructed the court that the maximum punishment was life imprisonment. The convening authority upon recommendation by his staff judge advocate approved the findings of guilty and the sentence. The order referring the case for trial stated that there were no instructions and the staff judge advocate's pretrial advice contained no recommendation that the case be treated as non-capital. Held: Attaching the presumption of regularity to the order referring the case for trial and the staff judge advocate's pretrial advice, it clearly appears that no direction was given that the case be treated as non-capital. Accordingly, a presumption of regularity cannot be applied to the actions of the defense counsel in pleading the accused guilty, and the law officer in accepting the plea, and to the post-trial action of the convening authority, so as to warrant an inference that the convening authority had in fact directed that the case be treated as non-capital. The convening authority's subsequent approval of the findings and sentence could have no retroactive effect in this respect. CM 374052, Smith (1954) 17 CMR 406. § 41.1. Generally. § 41. Investigation of Charges Upon arraignment on a charge of rape, the accused made a motion to quash the charge and specification contending that during the pretrial investigation he was not permitted to cross-examine the prosecutrix, that the investigating officer took certain testimony from her but no transcript was furnished the accused or included in the completed report of investigation, and that instead the officer included in his report a short summary and a remark that it was impossible to complete the interview with the prosecutrix. The accused also claimed that when he expressed a desire to make a statement during the investigation, he was told he had already made one and had no right to make a further statement. The law officer denied the motion stating as his reason that assuming the allegations were true, the defects were not jurisdictional. After the motion to quash was denied, the defense moved for a continuance in order to interrogate the prosecutrix. This was granted. When the court reconvened the defense requested a further continuance on the ground that the prosecutrix would not discuss the case with them. This motion was denied. Held that: -the law officer's ruling, if predicated solely upon the fact that improprieties in the Art 32 investigation were not jurisdictional, was not sound. Notwithstanding the fact that UCMJ, Art 32(d), provides that failure to follow the requirements of Art 32 shall not constitute jurisdictional error, a conviction may be reversed if the investigation delinquencies substantially prejudice the accused. (Citing U. C. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99; ACM 6653, Mercer, 11 CMR 812; ACM 7395, Westergren, 14 CMR 560; Index and Legislative History, UCMJ, pp 998-999; Legal and Legislative Basis, MCM, 1951, pp 53, 54.) two alternatives were open to the law officer in the event he deemed the motion well taken; first, the charges could be abated pending reinvestigation at the direction of the convening authority pursuant to Art 32 during which the shortcomings of the original |