MAIMING § 15. Evidence, Weight and Sufficiency § 15.1. Generally. Three of the four accused were convicted, inter alia, of riot and the accused D. was also convicted of maiming. All were in a bar after curfew and when two shore patrolmen sought to remove one of them, the accused D. struck one of the patrolmen on the head and when he fell D. kicked him in the face. When the other patrolmen intervened he was struck by one of the other accused. The fight was broken up by bystanders. The patrolman who was assaulted by D. testified that he was taken to a hospital where two bones in his face had to be reset. He remained in the hospital a month and four days. He also testified that his eye was injured and that he couldn't see out of it for several days. He was asked if his eye had been examined as a result of the injury and he testified that it had been and that the examination showed it was bad and he would have to wear glasses. Stipulated testimony of the doctor who treated the injured patrolman showed only that he was treated for the simple fracture of the cheekbone and that the postoperative course was uneventful. No mention of the eye was made. Held that: - the offense of maiming does not fail for lack of specific intent in view of the provisions of par 203, MCM, 1951, that infliction of the type of injuries specified in Art 124 upon the person of another is presumptive evidence of an intent to injure, disfigure or disable such other person. Even at common law, the law presumes the act of mayhem was done with requisite legal intent if proved to have occurred during an encounter. (Citing Wharton's Criminal Law, vol 1, sec 767.) - - the testimony of the victim relative to the results of the examination of his eye is hearsay and is not competent evidence simply because it was received by the court without objection. (Citing MCM, 1951, par 139(a).) — eliminating the evidence as to the eye examination, the only evidence remaining is the victim's statement that his eye was injured and the testimony of the doctor who treated him which made no mention of the eye injury and referred to the facial injury as only a simple fracture of the cheekbone which was not followed by any complications. Such evidence is insufficient to establish the severity necessary for the offense of maiming. However, the testimony is ample to prove the lesser included offense of aggravated assault. - although the term "riot” denotes a breach of peace committed by three or more persons in furtherance of a common purpose, such purpose need not be formed prior to assembly. It is sufficient if the assemblage actually begins to execute a common purpose in a tumultuous manner after it is assembled. The record herein is sufficient to indicate that the accused were actually engaged in the common purpose of resisting the shore patrol's lawful efforts to enforce the curfew. NCM 350, Davis, Roberts, Rogers, and Sharp (1954) 17 CMR 473. [See 36 Am Jur, Mayhem $ 3.] § 39. Sick or Convalescent Leave. § 47. Unauthorized Use or Possession of Pass. III. PERSONAL INJURY, DISABILITY, OR DEATH. § 59. In General. § 61. Disposition of Remains of Deceased Personnel; Burial. § 63. Disposition of Effects of Deceased Personnel. IV. SEPARATION FROM THE SERVICE; RELIEF FROM ACTIVE DUTY. § 73. In General. $75. Physical Disability. V. ACTIVITIES OF MILITARY PERSONNEL. § 82. Administrative Control and Regulation, Generally. § 85. Private Employment or Pursuits. I. IN GENERAL § 1. Generally A person in the military service is not justified in refusing to salute his national flag because of religious convictions. Federal law requires persons in uniform to salute the flag at certain times and the enforcement of this obligation is not an invasion of constitutional rights, even though saluting the flag may violate a soldier's religious beliefs. (Citing Op JAGAF 1952/58, 26 Mar 1952, 1 Dig Ops, EM § 57; West Virginia State Board of Education v. Barnette, 319 US 624, 87 L ed 1628, 63 S Ct 1178; Selective Draft Law Cases, 245 US 366, 62 L ed 349, 38 S Ct 159.) JAGA 1954/4566. 26 May 1954. [See also ACM 9036, Morgan, DISOBED § 19.1.] § 1.5. Legal residence or domicil; home of record. The records of the Department of the Army may be corrected by the Secretary of the Army to conform to the true and actual facts. Accordingly, the home address in the enlistment or induction records of a member may be corrected to show that the member is not a "resident of a United States territory or possession" within the meaning of sec 640, Department of Defense Appropriation Act, 1954 (PL 179, 83d Cong, 67 Stat 356), even though eligibility for foreign duty pay and overseas station per diem allowance may be established thereby. (Citing JAGA 1953/6168, 27 July 1953; JAGA 1954/2573, 5 Apr 1954.) JAGA 1954/4526. 10 May 1954. § 1.91. Use or carrying of weapons, generally. Some order or directive from an appropriate military authority requiring an officer or a soldier to carry concealed weapons is proper to insure that such action is "in the performance of official duties" within state laws prohibiting the carrying of concealed weapons but excepting military personnel on official duty. Any type of military authorization would be sufficient in this regard, either a general directive or individual authorization in travel orders. There is no federal agency competent to issue permits for carrying concealed weapons. In the case of couriers who do considerable interstate travel in civilian clothes, to prevent any difficulty with state law enforcement officials, it would be desirable to advise the appropriate state authorities that couriers will be authorized to carry concealed weapons while on official business. JAGA 1954/1372. 11 February 1954. § 3. Civil Rights and Liabilities, Generally §3.1. Generally. Department of Army policy with respect to debts of military personnel to civilian merchants, see JAGA 1954/9494, PAY § 101.7. § 3.5. Service of process. The wife of an Army officer who was confined in a stockade in Japan commenced an action for divorce against him. The summons and complaint in the divorce action were sent to military authorities with a request that they be forwarded to the appropriate commanding officer or to the appropriate head of the confinement institution where the officer was being held for service on him. Held: There is no federal statute providing for service by military personnel of process issued in a civil action. Although the military authorities ordinarily will assist in facilitating service of process on personnel within the jurisdiction of the Army by permitting process servers upon the proper application to enter military installations for that purpose, and making military personnel involved available for service, subject to reasonable limitations, the service of process in such cases is not a function of the military establishment or of its personnel. If the officer involved is willing to accept service, he may be able to arrange with some friend or acquaintance to effect the service providing that service of process effected in such manner would be acceptable to the civil court in which the action was brought. In such event there would be no objection to the friend or acquaintance effecting the service in his individual capacity even though he is a member of the armed forces. If the officer is unable or unwilling to make such arrangements, it might be possible to proceed through service by a civilian official in Japan, assuming the state law permits it. The United States Consulate General in Japan should be able to supply the names of individuals qualified to make such service. (Citing JAGA 1954/6318, 3 Aug 1954; JAGA 1953/8312, 27 Oct 1953; JAGA 1953/ 4463, 28 May 1953; JAGA 1952/8699, 13 Nov 1952.) JAGA 1954/9476. 24 November 1954. § 6.11. Proxy marriage. § 6. Marriage An administrative proposal in connection with the administration of the Dependents' Assistance Act of 1950 (64 Stat 794), as amended, which would recognize proxy marriages in the absence of any prohibitory statute or adverse decision in the jurisdiction where contracted and without regard to what the situation may be in the matrimonial domicile, is questionable. It would accord recognition by the government to such marriages regardless of whether they actually are valid under the law of the matrimonial domicile, or in the jurisdiction where contracted, or for that matter in any other jurisdiction. The rule followed by the General Accounting Office with regard to recognition of proxy marriages is that such marriages will be recognized (1) if contracted in a jurisdiction where it appears affirmatively that such marriages are authorized by statute, or have been held valid by a judicial decision, and (2) if contracted in a jurisdiction where it appears affirmatively that common-law marriage is recognized and proxy marriages are neither prohibited by statute nor held invalid by judicial decision. (Citing 24 Comp Gen 595; B-49442, 13 June 1945; B-51263, 25 Comp Gen 369, 2 Nov 1945; B-52248, 26 Nov 1945; B-55582, 2 Feb 1946; B-54600, 21 June 1948; B-117383, 33 Comp Gen 305, 26 Jan 1954, 3 Dig Ops No. 4, MIL PERS § 6.11; B-103120, 30 Jul 1951; B-111192, 32 Comp Gen 144, 26 Sept 1952; 2 Dig Ops, MIL PERS § 6.11; Barrons v. U. S., 191 F2d 92; Respole v. Respole, 70 NE2d 465.) MS Comp Gen B-118505, 33 Comp Gen 446. 12 April 1954. § 9.1. Generally. § 9. Divorce and Separation A divorce decree obtained by an officer's wife in the state of Washington provided in part that he should be required to pay his wife $100 per month for the support of the children of the parties until the children reached twenty-one years of age or until further order of the court. However, a letter signed by a Washington attorney stated that the law of the state of Washington is that a money judgment cannot be obtained against an individual unless he is personally served a copy of the complaint within the borders of the state. In this case personal service was not obtained and accordingly it was the attorney's opinion that anything the officer may have sent his wife for support was a mere gratuity and that the divorce decree did not constitute an order to pay. Held: As the divorce decree in question appears to be regular on its face, it should be regarded by the Army as valid until set aside or modified by a court of competent jurisdiction. Until set aside or modified, the support obligation set forth therein is considered prima facie evidence of the measure of the |