about 1 February 1952, he made a false statement to the effect that his parents had no income other than contributions from him and that his father was physically unfit to work. Prosecution evidence established that the accused's father had steady employment over the years and was working on 1 February 1952 and was employed at a salary of $118.00 a month during the entire period in which dependency contributions were received from the government. The accused, in his pretrial statement and in his testimony at the trial, admitted knowing of his father's employment from December 1951 until 1 February 1952, a period of time prior to the accused's presentment of the claim, but one for which he claimed payments. However, the accused asserted that at the time he filed the claim and made the statement that his parents had no income, his father was sick and was planning to leave work. The law officer instructed on the issue of mistake of fact, but the instructions were tainted with error. Held: The evidence was not sufficient to raise the defense of mistake of fact as an issue so as to require an instruction thereon, inasmuch as the lack of knowledge necessary to support a mistake of fact was not present, but, on the contrary, the accused's testimony supported, rather than refuted, the prosecution's showing of knowledge of the falsity.

Held also: The erroneous instruction by the law officer as to the defense of mistake of fact, which was given and induced by the accused's request, was not prejudicial to the accused, inasmuch as it afforded him a defense which he was not entitled to have submitted. United States v. Rodriguez-Suarez (No. 4667), 4 USCMA 679, 16 CMR 253.

The accused was found guilty of signing a false official document in violation of UCMJ, Art 107 and of making a false writing in violation of UCMJ, Art 132. He completed and submitted for approval a Certificate for Increased Allowances and a request for Allotment Authorization. These documents were executed for the purpose of obtaining dependency allowances and each contained a statement that a certain woman was the lawful wife of the accused. He testified that he married this woman by means of a telephone ceremony which occurred while he was in Louisiana and she was in Colorado. According to him, at the time of the alleged telephone conversation, the woman informed him that a minister was at hand, and the minister, at the joint request of the two parties, proceeded to administer the vows, thereby effecting a marriage. Again, according to the accused, after the woman returned to Louisiana from Colorado he cohabited with her for brief intervals in Louisiana. The woman denied the marriage ceremony had even occurred and furthermore that she had ever cohabited with the accused or had ever married him.

Held that:

- there was no necessity for an instruction on mistake of fact since the explanation of the accused was so bizarre, fantastic, and unworthy of belief that the issue of mistake of fact was not reasonably raised by the evidence. (Citing U. S. v. Robinson (No.

4632), 4 USCMA 488, 16 CMR 62; U. S. v. Furney (No. 1008), 2 USCMA 270, 8 CMR 70; U. S. v. Rodriguez-Suarez (No. 4667), 4 USCMA 679, 16 CMR 253. Distinguishing U. S. v. Rowan (No. 3635), 4 USCMA 430, 16 CMR 4; and U. S. v Short (No. 3586), 4 USCMA 437, 16 CMR 11.)

-

even assuming that the accused's explanation was reasonably credible, there was no necessity for an instruction on mistake of fact since the court was instructed that each of the offenses charged required proof of a fraudulent intent. Thus, assuming that the accused's testimony was credible, if the other evidence was sufficient to permit the court to find beyond a reasonable doubt that he acted as he did, with a fraudulent intent, then there is factual support for the finding, and the instructions, as given, negate any possibility that the accused could have been found guilty had the court accepted his explanation. (Citing U. S. v. Perruccio (No. 3569), 4 USCMA 28, 15 CMR 28.)

--

furthermore, the defense counsel at trial neither objected to, nor requested clarification of, the instructions as given by the law officer as he should have done had he believed the instructions did not present his theory of the case with sufficient clarity. (Citing U. S. v. Perruccio (No. 2569), 4 USCMA 28, 15 CMR 28.) ACM 7063, Morrison (1954) 17 CMR 686.

FALSE OFFICIAL STATEMENTS

§ 3. Nature and Elements of Offense.

9. Charges and Specifications.

§ 15. Evidence, Generally.

§ 17. Evidence, Weight and Sufficiency.

§ 21. Variance,

§ 22. Instructions to Court.

§ 23. Findings.

§ 3. Nature and Elements of Offense

§ 3.11. Materiality of statement.

On a trial for making a false official statement in violation of UCMJ, Art 107, the government is not required to show affirmatively that the false statement was material to the issue under inquiry at the time the statement was made. Materiality has significance, but its importance is in relation to intent to deceive. If the falsity is in respect to a material matter, it may be considered as evidence of an intent to deceive. While, if the statement is false in an immaterial respect, the immateriality may tend to show the lack of intent to deceive. (Citing U. S. v. Gilliland, 312 US 86, 93, 85 L ed 598, 61 S Ct 518; U. S. v. Eisler, 75 F Supp 634, affd 176 F2d 21, cert den 337 US 958, 93 L ed 1757, 69 S Ct 1535; U. S. v. Welch, 56 BR 233, 239; U. S. v. Bishop, 2 BR-JC 13, 17. Distinguishing U. S. v. Brumfield (No. 3797), 4 USCMA 404, 15 CMR 404; U. S. v. Cliette (No. 1129), 2 USCMA 240, 8 CMR 40.) United States v. Hutchins (No. 4945), 5 USCMA 422, 18 CMR 46.

§ 9.1. Generally.

§ 9. Charges and Specifications

The accused was charged with making a false official statement under the following specification: "In that ... did, at Maxwell Air Force Base, Alabama, on or about 7 October 1953, with intent to deceive, make an official statement to the Commandant, Air Command and Staff School, Maxwell Air Force Base, Alabama, to wit: 'A check that had been deposited and credited to my account in the amount of $700, which was later returned "due to insufficient funds", made my checking account overdrawn', which statement was wholly false, and was then known by the said [name of accused] to be false." In response to an official inquiry concerning the dishonor of his checks drawn on a certain bank, the accused had given the statement quoted in the specification as the reason for the dishonor. He had in fact deposited no such check in the bank on which the dishonored checks had been drawn. He testified that he had deposited such a check in his account in another bank but he admitted that the dishonor of this deposited check had nothing to do with the dishonor of his checks. Held: The specification effectively states the offense of making a false official statement with intent to deceive notwithstanding the fact that it does not indicate

to which bank the accused was referring when he made the false statement since the accused could not have been misled in the preparation of his defense and he would be able to avoid a second prosecution for the same offense. (See MCM, 1951, par 87a (2); ACM 8656, West, 16 CMR 587, and cases cited.) In this situation the specification is sufficient to permit consideration of the circumstances surrounding the making of the statement so as to preclude a claim of variance based on the fact that the specification does not set out the bank to which the accused was referring and as to one bank the statement was true. ACM 8913, Torbett (1954) 17 CMR 650.

§ 15.11. Other offenses.

§ 15. Evidence, Generally

Admissibility of evidence of other false statements tending to show intent or motive, see ACM 9023, Beckner, infra § 17.1.

§ 17. Evidence, Weight and Sufficiency

§ 17.1. Generally.

The accused was charged with making false statements in two flight records. Two flight records introduced in evidence were proven to have been signed by the accused and recited that the flights were taken at a certain Air Force base, on 9 May 1953 and 16 July 1953, respectively, with "Capt. Larry Daniels, AO-666248," alternating as pilot and co-pilot. An airman whose duty it was to maintain individual flight records testified that these particular records were turned in to the base operations office. A "Capt. Leonard J. Daniels, AO-666248," testified that he did not participate in flights with the accused at any time during the year 1953. The operations officer at the base testified that he had searched the records of his office and found no record of a flight by the accused, either on 9 May 1953 or 16 July 1953. Held: Such evidence was, prima facie, sufficient to prove all the essential elements of the offenses charged. Therefore, the plea of guilty, as well as the evidence, sufficiently establishes beyond a reasonable doubt that the accused was guilty as found by the court.

Held also: The fact that the stated service number of Captain "Larry Daniels" and that of Captain "Leonard A. Daniels" is the same, together with the fact that the surnames are the same, the rank is the same, the name "Larry" possibly could have been a nickname for the given name "Leonard" and "Larry" and "Leonard" when spoken sound somewhat the same, and the person (or persons) was (or were) at the same base at the same time sufficiently indicated that those names describe and refer to the same person. Accordingly, the testimony of Captain Daniels was properly received to establish the falsity of the records. The identity of names raises a presumption of identity of persons (MCM, 1951, par 138a, p 240; ACM 13, Baggett (BR), 1 CMR(AF) 16, 27), and the strength of the presumption will depend upon how common the name is and upon other circumstances (MCM, 1951, par 138a, p 240; ACM 2047,

White (BR) 2 CMR (AF) 450). The similarity of names and the attending circumstances may therefore be considered in determining whether the names indicate the same person (ACM 3846, LaVonture (BR), 4 CMR(AF) 599, 601, 602). ACM 8881, Smigelski (1954) 16 CMR 878.

The accused was found guilty of making a false official statement with intent to deceive. The evidence showed that he signed a Statement of Personal History in which he stated that he had graduated from certain specified schools with certain engineering degrees. It was stipulated that the accused had received no degrees from the particular schools. It was also shown that on two occasions prior to the one in issue the accused had officially represented that the same schools had awarded him the same academic degrees. The first of these representations was made in an application for appointment in the USAFR while the accused was still a master sergeant. The second statement was made in his Officers' Qualifications Record after the accused had become a captain. The theory of the defense was that although the accused had never graduated from the schools described in the specifications he had been engaged in practical engineering activities and had made intensive study of the theoretical aspects and was technically as well, or better, qualified than one possessing the academic attainments and that he had never intended to deceive anyone by making the statements charged but instead had merely intended to show his professional qualifications as an engineer. Held: The statement with which the accused was charged was admittedly false. Its official nature is clear. That it was known by the accused to be false at the time made, is clear beyond any doubt. On this evidence alone, the court was warranted in inferring that the accused possessed an intent to deceive at the time he made the statements charged. (See CM 351163, Day, 4 CMR 278, 281, and cases there cited.)

Held also: The evidence of the accused's two previous false representations as to his academic attainments, in his application for a commission and in his Officers' Qualifications Record, was admissible for the purpose of establishing motive and intent with respect to the making of the false statement with which he was charged. Having once falsely stated his accademic qualifications he had no alternative but to persist in his folly. ACM 9023, Beckner (1954) 16 CMR 759. [See 20 Am Jur, Evidence §§ 310, 313.]

§ 17.3. Proof of corpus delicti.

Necessity that accused be connected with offense to establish corpus delicti, see ACM S-9659, Kruger, EVID § 124.7.

§ 21.1. Generally.

§ 21. Variance

Specification alleging false statement relating to bank account which fails to allege the name of the bank as sufficient to permit consideration of circumstances surrounding the making of the statement so as to preclude a claim of variance, see ACM 8913, Torbett, supra § 9.1.