broaden the Article's scope would be to substitute mere negligence for the specific criminal intent required by the statute which defines the crime of perjury. A false statement which was the result of an honest mistake may not be made the basis for a conviction of perjury. The common law concept of wilful and corrupt false swearing constitutes an integral part of the Code's definition of perjury. Accordingly, the instruction requiring that the accused must have labored under "reasonable" as well as an "honest" mistake was erroneous. (Citing U. S. v. Rowan (No. 3635), 4 USCMA 430, 16 CMR 4; 70 CJS, Perjury § 17; Scott v. State, 66 Okla Cr App 441, 92 P2d 847; Seymour v. U. S., 77 F2d 577; Wharton, Criminal Law § 1513 and cases cited; 41 Am Jur, Perjury § 10; Clark and Marshall, the Law of Crimes, § 446, page 644.) - under the circumstances herein, the court-martial may well have believed the accused's testimony that he had served as officer of the day on 28 March, but, because of his judicial admission, could have found him guilty of perjury in denying his presence in Frankfurt on 29 March. In admitting to false testimony regarding his presence in Frankfurt on 29 March, the accused assured his conviction, unless his defense of mistake of fact was accepted. It is distinctly possible that the court-martial concluded that his statement, although honest, was unreasonable and careless. Under such circumstances there is a fair risk that the accused was prejudiced by the erroneous instruction. United States v. Taylor (No. 5210), 5 USCMA 775, 19 CMR 71. § 45. Corroboration § 45.1. Generally. Sufficiency of evidence to corroborate testimony of single witness as to falsity of allegedly perjured statement, see United States v. Taylor, supra § 39.1. PLEAS AND MOTIONS § 3. Motions, Generally. § 5. Motion for Finding of Not Guilty. § 9. Plea of Guilty. § 3. Motions, Generally §3.11. Motion for mistrial. Authority to declare a mistrial or grounds therefor, see TRIAL § 16. § 5. Motion for Finding of Not Guilty § 5.21. Hearing additional evidence. After the prosecution and defense had both rested the defense moved for a direct verdict of a finding of not guilty on the ground of insufficiency of evidence. The law officer denied the motion. The court objected to the ruling of the law officer and the court was closed. When the court opened, the court requested the trial counsel to summon a new witness who was permitted, over objection of the defense, to give testimony very damaging to the accused. After this witness was excused the court upheld the ruling of the law officer which denied the motion for a finding of not guilty. Held: Neither the law officer nor the court erred since the procedure followed was in conformity with the provisions of pars 54b and 71a and Appx 8a, MCM, 1951. (See also Winthrop's Military Law and Precedents, 2nd ed, 1920, pp 286, 287 and Naval Courts and Boards, secs 252 and 613.) NCM 342, Van Keuren (1954) 16 CMR 434. § 9.1. Generally. § 9. Plea of Guilty The accused was charged with absence without leave and missing movement of his ship. He pleaded guilty to the absence without leave charge but not guilty to the missing movement charge. No evidence was introduced to establish that the accused missed his ship, the prosecution relying completely on his plea of guilty to the absence without leave charge to establish that he was not on the ship when it sailed. Held: An accused's plea of guilty to one offense is not available as evidence tending to prove an entirely different offense when neither offense is included in the other as a lesser offense thereof. While a plea of guilty to an offense constitutes a judicial confession of guilt to that particular offense and is considered the highest degree of proof of guilt and admits every essential element of the offense alleged, such a plea admits only what has been charged and pleaded to. The effect of a plea of guilty is limited to the offense to which the plea is entered. To hold a plea of guilty to one offense as an admission supplying a fact common to that offense and also to a completely separate offense to which the accused has pleaded not guilty would in effect deprive him of a substantial right. (Citing U. S. v. Lucas (No. 7), 1 USCMA 19, 1 CMR 19; MCM, 1951, par 70b; U. S. v. Spaulding, NCM 1-52-8-716, 4 Nov 1952; ACM S-521, Steiner, 3 CMR(AF) 160; CM 358097, Hughes, 7 CMR 229. val (No. 3001), 4 USCMA 61, 15 CMR 61, 67.) (1954) 18 CMR 424. Cf. U. S. v. Sando- § 9.5. Plea improvidently made; failure to understand; advice as to punishment. The accused pleaded guilty to larceny. After findings of guilty, defense counsel made a statement in mitigation on behalf of the accused to the effect that the accused was not in full possession of all his faculties, that he was not aware of what he was actually doing, and that he was not in his right mind at the time of some of the offenses because he was under the influence of some sort of drug. Following the defense counsel's statements there was no explanation by the court, the defense did not voluntarily withdraw the statements and the court proceeded with the completion of the trial on the guilty plea. Held: A plea of guilty to larceny and statements that the accused was not in full possession of his faculties, that he was not aware of what he was doing, and that he was not in his right mind, are inconsistent. The words "or otherwise" as used in par 70b, MCM, 1951, which provides for certain action to be taken by the court whenever an accused makes a statement in his testimony "or otherwise" inconsistent with a plea of guilty the court will make such explanation as the occasion requires, includes statements by the defense counsel, particularly where the statements are made on behalf of the accused and based on information received from him. Accordingly, the failure to make an explanation and proceeding to the completion of the trial on the plea of guilty was error materially prejudicial to the rights of the accused. (Citing NCM 302, Ray, 15 CMR 539.) NCM 325, Turner (1954) 16 CMR 391. The accused pleaded guilty to an offense of absence without authority and not guilty to an offense of missing movement through neglect. He was found guilty of both. The accused testified that he had been in town on leave and had started back in time to arrive before his ship left but he accepted a ride from three sailors and during the ride he was struck on the head and the next thing he knew he awakened the next morning in an automobile outside the base. His wallet was missing and his liberty and identification cards, along with a blackjack, were lying on the floor. He tried to run to his ship but it had gone when he reached the pier so he turned himself in. Other witnesses testified that the accused was seen entering a car with three sailors and the accused had presented a blackjack at a captain's mast hearing. Held: The accused's testimony, if believed, indicates that his absence was through no fault of his own and this testimony is not so fantastic and unreasonable as to be patently false and accordingly the plea of guilty to unauthorized absence should have been rejected in accordance with the provisions of UCMJ, Art 45(a), since the accused's testimony was inconsistent with the plea of guilty. (Citing MCM, 1951, par 165.) Held also: The evidence introduced by the defense reasonably raised the issue of the accused's physical inability to be on the ship when it sailed. Physical inability to move with a ship when it sails and to return from authorized liberty constitutes an affirmative defense to the offenses of missing movement through neglect and unauthorized absence, and the president of the court accordingly was required to furnish the court with appropriate instructions thereon, whether or not requested by the defense, and failure to do so constitutes prejudicial error as to any offense to which the accused pleaded not guilty. (See U. S. v. Heims (No. 1497), 3 USCMA 418, 12 CMR 174.) NCM 351, Mills (1954) 17 CMR 480. The accused pleaded guilty to wrongful appropriation of a wallet. After findings he testified that he found the wallet and kept it more or less as a joke to teach the owner a lesson. Held: There was no inconsistency between the plea of guilty and the accused's postfinding statement since his testimony did not negate the wrongfulness of the act charged against him. The claim that he was merely seeking to teach the owner a lesson constitutes no sort of justification. (See U. S. v. Krawczyk (No. 3592), 4 USCMA 255, 15 CMR 255; U. S. v. Krull (No. 934), 3 USCMA 129, 11 CMR 129.) United States v. McCoy (No. 4762), 5 USCMA 246, 17 CMR 246. The accused pleaded guilty to four specifications and not guilty to two specifications alleging that he sold liquor to two airmen not authorized to possess it. The defense counsel cross-examined the alleged purchasers as to their personal knowledge of the contents of the cases they purchased. They answered that the containers were similar in size and shape to those used for packaging whiskey but they had not opened nor examined the contents. However, the accused had agreed to deliver whiskey and they had resold the cases as whiskey and the purchaser had not complained that he did not get whiskey. In his closing argument the defense counsel stated that it was his contention that the sum total of the evidence was not sufficient proof that the accused was implicated in whiskey sales on six separate occasions. He further stated that the court might find that "the pleas themselves were somewhat improvidently entered". He argued that the court might find there was too much to be presumed for a finding of guilty. In this connection he referred to the testimony as to the contents of the bottles purchased and the necessity for presuming they contained whiskey. He referred the court to UCMJ, Art 45, and submitted that the court might find the accused not guilty to four specifications and that the prosecution had not proved any of the specifications even with a prima facie case. Held: The defense counsel's cross-examination did not indicate the pleas of guilty were improvident. It amounted to no more than an examination of a part of the prosecutions case, perhaps with a view to changing the pleas if the examination indicated the prosecution would be unable to prove its case. Also, under the circumstances, the argument of the defense counsel was not such a clear contention of innocence as to indicate that the pleas of guilty were improvident ly entered. However, even if the pleas had been improvident, the error would be harmless since where a court-martial has improperly considered a plea of guilty because of its improvident entry or inconsistency with matter of defense, this does not necessitate setting aside the findings if, as is the case herein, the law officer's instructions complied with the mandate of UCMJ, Art 51(c), and the evidence, aside from the pleas, was of such quality and quantity as to negative any reasonable possibility that, without the pleas, the court would have returned findings of not guilty. (Citing ACM 7321, Kinder, 14 CMR 742; ACM 6678, Hale, 11 CMR 768; ACM 4334, Kirwan, 2 CMR 782, 785; ACM S-1809, Hill 2 CMR 812, 816; ACM S-3816, Davis, 6 CMR 860.) ACM 9457, German (1954) 18 CMR 656. Failure to withdraw plea of guilty following accused's inconsistent testimony, see United States v. Kitchen, EVID § 275.7. Consideration of AFQT score in determining capability of understanding explanation of plea of guilty, see ACM S-9680, Lam, SENT & PUN 3.11. |