1951, it is necessary that the evidence reflect culpably negligent or wanton operation of the vehicle by the accused. The evidence herein does not meet this test. Assuming that the accused was exceeding the speed limit, that factor, standing alone, may show nothing more than simple negligence which will not suffice for a conviction of reckless driving. Nor may it be concluded from the mere occurrence of the accident that it was precipitated by a culpably negligent or wanton operation of the vehicle. In fact, the prosecution's evidence with respect to the skid marks leaves a fair inference that the automobile was drawn off its course by either defective brakes or the uneven grip of the tires upon the road. Although the evidence indicates negligent operation of the vehicle it fails to establish beyond a reasonable doubt that it was operated in a reckless manner. (Citing U. S. v. Riggleman (No. 195), 1 USCMA 336, 3 CMR 70; ACM 5666, Eagleson, 11 CMR 893; ACM 6383, Bernard, 10 CMR 718; ACM 2927, Jaekley, 4 CMR (AF) 130; CM 359117, Johnston, 9 CMR 421; CM 346686, Lybarger, 1 CMR 147; 5 Am Jur, Automobiles, sec 802.) In cases of this nature all of the facts which tend to establish the culpable negligence or wantonness of the accused's operation of the vehicle should be presented by the prosecution. It is particularly important that the record of trial reflect the type, condition, grade, and width of the road, whether it be winding, crooked, or straight, the posted speed limit, the presence or absence of other traffic, whether vehicular or pedestrian, detailed evidence of existing weather conditions, including visibility, the nature of the area immediately adjacent to the highway, whether residential, industrial, or open farm land, the operating condition of the accused's vehicle, and, the sobriety and alertness of the accused. ACM S-10661, Lawrence (1955) 18 CMR 855.

§ 59. Leaving Scene of Accident

§ 59.3. Operation of vehicle by another.

The accused and another airman took an automobile belonging to a third airman and drove it into the city of Lubbock, Texas, where they ran the car into a light pole, damaging both the car and the pole extensively. The accused's companion was the driver of the car when it was originally taken and presumably was at the wheel when the accident occurred. The accused and his companion left the scene of the accident and hitchhiked back to the air base without making their identity known to anyone. The accused was found guilty of a specification alleging that he, being a passenger in a vehicle at the time of a collision, did, at Lubbock, Texas, on or about 7 November 1954, wrongfully and unlawfully leave the scene of the collision without making his identity known.

Held that:

- in the military sphere a passenger in an automobile which is involved in an accident is under the same duties as the driver with respect to rendering assistance to the injured and making his identity known, provided his status with respect to the personnel or property involved is such as to impose upon him the affirmative duty of taking such action. Depending upon the circumstances,

this status may exist, for example, if the passenger is the senior officer in the military vehicle, if he is exercising control over the vehicle or driver, if military property is involved, or if the passenger and driver are engaged in an unlawful joint enterprise. In a situation where the passenger is under the same obligations as the driver his delict, like that of the driver, may constitute conduct which is prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces. (Citing CM 4492, Shelton, 13 ETO 1; CM 326443, Morrison, 75 BR 215; cf. ACM 673, Alvey (BR), 1 CMR(AF) 463; see also 61 CJS sec 675; State v. Derosia, 50 A2d 231; People v. Rallo, 6 P2d 516; People v. Odom, 66 P2d 206; People v. Steele, 280 P 999; Goodman v. State, 102 So 486; People v. Maggio, 266 P 813; People v. Hoaglin, 247 NW 141.)

-the circumstances of this particular case were such that the accused was under the same duty as the driver of the vehicle to make his identity known after the collision. They were acting in concert when they appropriated the automobile and it is a reasonable inference that the entire enterprise from beginning to end was a joint one. Property belonging to the city of Lubbock and the car were damaged. Insofar as the driver is concerned, leaving the scene of such an accident without making identity known was clearly conduct of a nature to bring discredit upon the armed forces. The passenger, being engaged in an unlawful enterprise with the driver, was under the same duty and his failure to make his identity known likewise amounted to conduct of a nature to bring discredit upon the armed forces.

the specification was sufficient to allege an offense under UCMJ, Art 134. By characterizing the accused's conduct as "wrongful" and "unlawful", the pleadings put him on notice that the circumstances placed him under a duty to make his identity known and negatived all innocent aspects of his conduct. Moreover, there is nothing in the record to indicate the accused was misled by the pleading. The gist of the offense alleged and proved was the same. If the accused desired additional specificity in the pleadings he should have requested it by timely motion for appropriate relief. Finally, the record will clearly protect the accused from any subsequent prosecution for the same offense. (Citing Legal and Legislative Basis, MCM, 1951, pp 42, 43; U. S. v. Sell (No. 1939), 3 USCMA 202, 11 CMR 202; ACM 9462, McGlone, 18 CMR 525.) ACM 10160, Thiel (1955) 18 CMR 934.

Sufficiency of specification charging a passenger with the offense of leaving the scene of an accident, see ACM 10160, Thiel, supra § 59.3.

§ 11.5. Riot.

MUTINY AND SEDITION

§ 11. Included Offenses

Riot as lesser included offense of mutiny, see United States v. Watson, infra § 26.7.

§ 26. Instructions to Court

§ 26.7. Included offenses.

The accused was charged with mutiny under a specification which alleged that he did, in conjunction with two other named persons, with intent to usurp and override lawful military authority, at 7727 United States Army Europe Retraining Center, Lechfeld, Germany, on or about 26 December 1952, create a disturbance by attempting to effect the release of a prisoner from administrative segregation, and exhorting other prisoners to join him in the disturbance. The evidence showed that on the night alleged, a number of prisoners at an Army Retraining Center began a demonstration of protests against the segregation of one of the inmates. The commanding officer tried unsuccessfully to quell the disturbance. At the trial, the commanding officer identified the accused as a ringleader of the outburst. However, he denied seeing the accused raise a weapon against him and he testified that the accused was respectful to him to the extent of addressing him as "Sir." He further stated that he did not recall the use of any threatening gestures by the accused or any other prisoner. Several other prisoners testified for the government concerning the details of the disturbance and the accused's activities at the time. The defense countered with evidence of prior inconsistent statements from several of these witnesses, including a remark made by the commanding officer to a CID agent to the effect that he was unable to identify the participants in the disorder. After the court had closed to deliberate on findings, the law officer was called into closed session and informed that the court found the accused not guilty of mutiny but guilty of riot. The law officer then informed the court that riot was not a lesser included offense of mutiny and that breach of the peace was the only lesser included offense. He told the court that they might reconsider their findings if they wished. In the light of the law officer's statement the court closed to reconsider its findings and found the accused guilty of mutiny, the offense of which he had earlier been found not guilty. Held that:

under certain circumstances of allegation and proof, riot may properly be deemed a lesser included offense to mutiny. (Citing U. S. v. Duggan (No. 3584), 4 USCMA 396, 15 CMR 396; U. S. v. Mendiola (No. 3633), 4 USCMA 403, 15 CMR 403.)

-under the language of the specification herein, riot might properly be deemed a lesser included offense to the mutiny charged.

— the evidence adduced at the trial served reasonably to raise the possibility of the accused's guilt of riot as a reasonable alternative to the offense of mutiny charged. The law officer was accordingly in error when he informed the members of the court that riot could not be lesser included within the crime of mutiny as alleged. The instruction given would have constituted error under the facts of this case had it been supplied in open court and the circumstance that it was furnished in a closed session simply adds to its erroneous character. Orderly procedure demands that the defense be afforded an opportunity to develop its position with respect to such a question as was raised herein. By charging as he did on a vital matter outside the presence of both the accused and his counsel, the law officer transgressed this requirement and deprived the accused of a valuable right. United States v. Watson (No. 3639), ↳ USCMA 557, 16 CMR 131.

I. IN GENERAL.

NATIONAL GUARD

§ 1. Generally.

§ 12. Civilian Personnel.

§ 15. Calling or Ordering into Active Federal Service.

IV. OFFICERS AND ENLISTED MEN.

§ 37. Enlistment and Induction.

§ 61. Injuries, Disability, or Death.

§ 71. Discharge, Dismissal or Resignation of Personnel.

I. IN GENERAL

§ 1. Generally

Applicability of Unemployment Compensation Act to members of Air National Guard, see Op JAGAF 1955/10, CIV PERS § 49.1.

§ 12.1. Generally.

§ 12. Civilian Personnel

Applicability of Unemployment Compensation Act to civilian employees of Air National Guard, see Op JAGAF 1955/10, CIV PERS § 49.1.

§ 15. Calling or Ordering into Active Federal Service § 15.1. Generally.

On 6 August 1953 a National Guard sergeant received notice of induction as a selectee. On the same date he applied for active duty. On 26 August he was inducted. On 20 October orders were issued purporting to call him to active duty as of that date. On 1 March 1954 orders were issued purporting to amend the 20 October orders to make them confirm verbal orders of 20 August calling the man to active duty as of that date which would have been prior to his induction. A letter indorsement by the headquarters purporting to call him to active duty stated that his request for active duty was inadvertently received after his induction. Held: The record is devoid of evidence that the man was given an order, verbal or otherwise, to report for active duty pursuant to his application therefor prior to the date he was ordered to report for induction. In fact it appears that his request was not received until after his induction. As a confirming order cannot confirm a fact nonexistent at the date of the order purported to be confirmed, it follows that the orders of 1 March 1954 purporting to confirm verbal orders of 20 August 1953, were legally ineffective to order the man to active duty as of 20 August 1953. (Citing SPJGA 1943/4045, 25 Mar 1943; JAGA 1951/4495, 25 Jul 1951;