Held: Although the specification might conceivably have been made more definite, it was sufficient to place the accused on notice of the offense alleged and provides a sufficient protection against a second trial for the same offense. (Citing U. S. v. Schumacher (No. 680), 2 USCMA 134, 7 CMR 10; ACM 4202, Barnes, 2 CMR 797.)

Held also: On the above evidence the defense of mistake was reasonably raised and it was incumbent on the law officer to instruct thereon sua sponte. His failure to do so was error materially prejuIdicial to the accused. (Citing MCM, 1951, par 154a (3); U. S. v. Rowan (No. 3635), 4 USCMA 430, 16 CMR 4; ACM 9048, Baker, 16 CMR 855; U. S. v. Perruccio (No. 3569), 4 USCMA 28, 15 CMR 28; U. S. v. Heims (No. 1497), 3 USCMA 418, 12 CMR 174; U. S. v. Miller (No. 1021), 2 USCMA 194, 7 CMR 70; U. S. v. Drew (No. 422), 1 USCMA 471, 4 CMR 63; U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45.) ACM 9659, McLeod (1955) 18 CMR 814.

§ 31.2. Multiplication; duplicity.

The accused was found guilty under two specifications alleging larceny. Both specifications had to do with offenses alleged to have been committed on the same date. The first charged a theft from Building 623 at Pensacola Naval Air Station of eight hams belonging to the United States government and the second charged the purloining from Building 624 of a case of salad oil. The accused was found in possession of the stolen goods on the day of its loss. The same morning a monthly inventory had been accomplished. A further inventory revealed a discrepancy which tallied exactly with the items and quantities with which the accused was charged. There was also evidence of an extrajudicial confession. While the evidence aside from the confession gave little indication that the hams had come from one building and the salad oil from another, the confession made clear that this had been the case. Held: The accused's voluntary confession was sufficient to differentiate, for every relevant purpose, the theft of the ham from that of the salad oil. Accordingly, dealing with the misconduct under two specifications and permitting the court-martial to impose a penalty predicated on the separateness of the offenses alleged was not improper. (Citing U. S. v. Stribling (No. 5591), 5 USCMA 531, 18 CMR 155; U. S. v. Calderon. 348 US 160, 99 L ed, 75 S Ct 186; cf. U. S. v. Krull (No. 934), 3 USCMA 129, 11 CMR 129; U. S. v. Krawczyk (No. 3592), 4 USCMA 255, 15 CMR 255.) United States v. Arrington (No. 5845), 5 USCMA 557, 18 CMR 181.

§ 35. Pleas and Defenses

§ 35.29. Ignorance or mistake.

Reasonableness of mistake as not necessary, see United States v. Rowan, WORTH CHECKS § 20.11.

§ 36. Instructions to Court

§ 36.9. Value of property.

The accused was convicted of wrongful appropriation under a specification alleging that he wrongfully appropriated an automo

bile, the property of a named person. In the instructions no reference was made to specific value. The court was merely required to find that the property involved "was an automobile as alleged." Held: Value of the property is an element of the offense of wrongful appropriation of an automobile. Specific value, however, is immaterial since the requirements of this element are satisfied by a showing of some value. (Citing UCMJ, Art 121; MCM, 1951, par 200b; CM 366045, Williams, 12 CMR 527; U. S. v. May (No. 3450), 3 USCMA 703, 14 CMR 121; U. S. v. Johnson (No. 3690), 3 USCMA 706, 14 CMR 124.) Since value is an element of the offense, a court-martial, guided by proper instructions, must find the presence of the element in order to find an accused guilty of the offense. Accordingly, the failure to specifically mention value in the instructions was error. However, no prejudice accrued to the accused since the court-martial could not have failed to find that the property involved was of some value even though value was not mentioned in so many words. (Citing U. S. v. Kuble (No. 229), 1 USCMA 645, 5 CMR 73; U. S. v. Smith (No. 1453), 2 USCMA 312, 8 CMR 112; U. S. v. Johnson (No. 3690), 3 USCMA 706, 14 CMR 124.) Furthermore the accused was represented by competent counsel who offered no objection to the instruction and made no request for clarification. Had counsel thought the court was being misled he should have requested clarification. (Citing U. S. v. Johnson, supra.)

Held also: The failure of the specification to allege any value was not material since it described property which any reasonable person would necessarily conclude had some value. (Citing U. S. v. May (No. 3450), 3 USCMA 703, 14 CMR 121; U. S. v. Johnson (No. 3690), 3 USCMA 706, 14 CMR 124.) ACM S-10859, Odum (1955) 19 CMR ·

§ 36.11. Possession of stolen property.

On a trial for larceny, the evidence showed that a number of items of recently stolen property were found in the possession of the accused. The law officer instructed the court in the language of par 138a, MCM, 1951, that proof that a person was in possession of recently stolen property or a part of it raised a presumption that he stole it. This instruction was followed by instructions that the final determination as to the weight of the evidence and the credibility of the witnesses rested upon the members of the court, that the court must disregard any comment or statement by the law officer indicating an opinion as to the guilt or innocence of the accused, that the guilt or innocence of the accused was an issue solely for decision by the court and that each member must impartially resolve the ultimate issue in accordance with the law, the evidence admitted in court and his own conscience. Held: Since proof of possession of recently stolen property does not give rise to a presumption of law that the possessor stole the property, instructing the court in the language of the Manual may constitute reversible error (1) if it is subject to understanding by the members of the court as an instruction as to the weight the members must give to such evidence, thus in effect removing an issue from the court's determination, or (2) if the instruction has the effect of shifting the burden of proof to the

detriment of the accused. Therefore, law officers should avoid the use of the phraseology "raises a presumption" which standing unexplained could be misleading. The law officer should be careful to frame his instructions so that they convey to the court that the effect of evidence of possession of stolen property is an issue of fact for the court's exclusive determination and not a presumption of law that the court must recognize and accept. (Citing U. S. v. Doyle (No. 1804), 3 USCMA 585, 14 CMR 3; U. S. v. Johnson (No. 2363), 3 USCMA 447, 13 CMR 3; 52 CJS, Larceny § 151, 32 Am Jur, Larceny § 153.) However, considering the subsequent instructions, the court was not misled by the instruction employing the language "raises a presumption" and the court fully realized that they had the independent responsibility of determining the weight of the evidence and deciding the issue of the accused's innocence or guilt. Cf. U. S. v. Doyle (No. 1804), 3 USCMA 585, 14 CMR 3.) Furthermore, the defense counsel at trial offered no objection to the instructions given and, as it was his duty to request clarifying instructions if he felt additional ones should have been given to avoid confusion in the minds of the court, the defense counsel must have been satisfied that the instructions were not misleading. ACM 9205, Perkins (1954) 17 CMR 702.

§ 36.15. Offenses other than that charged.

On a trial for larceny of forty-eight pounds of coffee evidence was admitted showing that considerably more than that had been taken and indicating a probability that the accused had taken it. With respect to evidence of other offenses the law officer instructed that the general rule is that evidence that the accused has bad moral character may not be introduced for the purpose of raising an inference of guilt and that evidence from which it can be inferred that the accused may have committed other offenses or acts of misconduct is not admissible as tending to prove his guilt on the basis of an inference that such evidence shows that the accused has a disposition to do acts of the kind committed. He further instructed that the evidence of other offenses was admitted solely because it tended to prove a material fact with reference to an offense charged and that court should consider such evidence for this purpose only. Held: The instruction appropriately limited the effect of the evidence of other offenses. Further, no exception was entered by the defense counsel to the instruction. There is no probability that the court was in any way mislead in its determination of the accused's guilt. (Citing MCM, 1951, par 138g; U. S. v. Haimson (No. 4549), 5 USCMA 208, 17 CMR 208; ACM, 8609, Brossman, 16 CMR 721, and cases cited.) ACM 9758, Coleroff (1955) 18 CMR 724.

§ 36.17. Included offenses.

The accused was charged with larceny and found guilty of wrongful appropriation. However, there was no instruction upon the lesser included offense of which the accused was convicted. The record was clear, however, that the accused was guilty of the offense charged or some part thereof. Held: While it was error not to instruct upon the lesser included offense, under the evidence, the error

was purged and the findings of the court were proper. A finding of guilt upon an offense lesser than that charged and upon which there has been no instruction constitutes error. However, such a failure of instructions does not necessarily create such a substantial prejudice to the accused that it cannot be purged. The tests for determining whether such an error can or cannot be cured are: First, in those instances where there exists the possibility that the accused might have been acquitted by a court acting under proper instructions, the effect of the error to the substantial rights of the accused cannot be purged. Secondly, such error cannot be purged where there exists the possibility that the accused might have been found guilty of an offense lesser than the included lesser offense of which he has been convicted. (Citing U. S. v. Clark (No. 190), 1 USCMA 201, 2 CMR 107; U. S. v. Moreash (No. 715), 1 USCMA 616, 5 CMR 44; U. S. v. Fox (No. 837), 2 USCMA 465, 9 CMR 95; U. S. v. Burgess (No. 783), 2 USCMA 542, 10 CMR 40; U. S. v. Burden (No. 1038), 2 USCMA 547, 10 CMR 45; U. S. v. Hunter (No. 359), 2 USCMA 37, 6 CMR 37; and other cases.) NCM 349, Martin (1954) 17 CMR 470.

The accused was convicted of larceny. A member of his unit discovered some money missing. The accused's room was searched with his consent and military payment certificates in the exact amount, number and denomination of those taken were found. The accused testified that he found the money but since it was Sunday he thought no officers were present and so he was going to hold it and turn it in the next day to the company commander. When he was asked why he did not report his find when he was informed by the persons who searched his room that some money was missing he explained that they didn't say how much it was and that if they had stated how much it was he would have told them. However, he admitted that the information roused his suspicions. After instructing on the elements of larceny, the law officer advised the court that wrongful appropriation was a lesser included offense, but he stated that it did not appear to him that the commission of that offense was raised by the evidence. In his closing argument the trial counsel argued that the accused's remaining silent both when informed, prior to the search, that money was missing and after the search had disclosed some money constituted a tacit admission of guilt. The defense did not object to any part of the argument. Held: The law officer correctly instructed that the lesser offense was not in issue since the accused not only denied stealing the money but his testimony was equally emphatic in denying the lesser intent to misappropriate. According to him, his only intent was to turn over the money the following day and he clearly sought to create the impression that had it not been Sunday he would have immediately delivered it. The accused's testimony thus constitutes a complete disclaimer of any criminal intent and under such circumstances acquittal was the only alternative to conviction for the offense charged. (Citing Gilbert v. U. S., 215 F2d 334; U. S. v. Jackson (No. 3943), 4 USCMA 294, 15 CMR 294; U. S. v. Smith (No. 1453), 2 USCMA 312, 8 CMR 112.)

Held also: The accused's explanation that he consented to the search because he had done nothing wrong, that he remained silent when told that money was missing because he was not told how much it was, and his testimony that he did not reveal his find after the discovery of the money because he was scared, constituted an attempt by the accused to justify his silence as apart of his own case. Having done so, it was not improper for the trial counsel to make fair comment on the adverse inferences that could reasonably be drawn from the accused's testimony. The trial counsel's remarks show nothing which exceeded the bounds of fair comment on the evidence. (Citing Peckham v. U. S., 210 F2d 693.) United States v. Sims (No. 4808), 5 USCMA 115, 17 CMR 115.

§ 36.19. Defenses, generally.

The accused was found guilty of wrongful appropriation of an automobile. Both the owner of the automobile and another witness testified that on the evening the accused allegedly took the car they had been drinking with him. Each described the accused's conduct during the course of the evening and expressed the opinion that the accused was drunk. The accused testified that the last thing he remembered on the night in question was passing a wine bottle at a house in one town and that he came to the next morning in the car in another town. The law officer concluded an instruction on the effect of intoxication with the statement: "Gentlemen, it is my considered opinion that drunkenness to be a defense, the accused must be so drunk that his mental motors must be stalled." Held: The instruction is susceptible of the interpretation that drunkenness can be a defense only if it amounts to ambulatory stupefaction. Taken in this sense, the instruction is erroneous and highly prejudicial since a court-martial can justifiably entertain a reasonable doubt as to an accused's capacity to entertain specific intent upon evidence showing intoxication less than ambulatory stupefaction. (Citing U. S. v. Backley (No. 1588), 2 USCMA 496, 9 CMR 126.) CM 378571, Guay (1955) 18 CMR 351.

Sufficiency of instructions on defense of mistake of fact, see CM 372671, McGriff, CONDUCT, ETC. § 57.13.

Instructing on defense of mistake, see ACM 9659, McLeod, TRIAL $ 57.5.

§ 36.25. Negligent loss or handling of funds.

The accused was convicted of embezzlement under a specification alleging that he did, at a named place, from about 10 April 1953 to about 18 April 1953, steal United States postage stamps and stamped envelopes of a value of $201.48, property of the United States. The accused was a postal clerk. When he did not appear for duty one morning, the postal officer entered his cage and found two cash boxes one of which was unlocked. When the locked box was opened, a shortage in the accused's stamp stock in the amount alleged was discovered. In addition to testifying that one of the boxes in the accused's cage was found unlocked, the postal officer testified on cross-examination that he believed the accused was