did not vest any rights in a member of the service, nor create any substantive law with respect to criminal matters falling within the scope of the provisions. (Citing CM 341921, Arndt, 7 BR-JC 229; CM 203609, Upton, 7 BR 241; U. S. v. Hooper (No. 4834), 5 USCMA 391, 18 CMR 15 and other cases.) Similarly, directives establishing Air Force policy and procedures for administrative handling of civilian complaints of indebtedness by members of the Air Force did not vest any rights in a member of the service nor create any substantive law with respect to the criminal prosecution of matters falling within the scope of their provisions. Accordingly, compliance with administrative policies and procedures was not a prerequisite to charging the accused with an offense of dishonorable failure to pay debts or bringing him to trial on such charges. ACM 9636, Journell (1955) 18 CMR 752. § 27.3. Included offenses. The accused was charged with wrongfully and dishonorably failing to pay a debt and was found guilty by exceptions and substitutions of wrongfully and discreditably failing to pay the particular debt. Held: There is no such offense as discreditable failure to pay a debt. The offense of dishonorably failing to pay debts originated as a form of the charge of conduct unbecoming an officer and gentleman. Consistent with this origin and chief association, there is inextricably woven into the concept of the punishable conduct the notion that it shall have occurred under dishonorable circumstances and nothing less. Furthermore, criminal prosecutions involving nonpayment of contractual debts are not favored in American law. The instinct of American law is against interposing criminal sanctions for the nonpayment of private debts. This instinct points against recognition of any lesser offense arising out of failure to pay debts than the single established one of dishonorable failure. (Citing Winthrop's Military Law and Precedents, Reprint ed, p 712; Ex parte Milecke, 52 Wash 312, 100 P 743, 21 LRA NS 259; Carr v. State, 106 Ala 35, 17 So 350, 34 LRA 634; ACM 8194, Walden, 15 CMR 654 and cases there cited. Contra CM 355287, Loney, 8 CMR 533.) CGCMS 20106, Whitney. 11 January 1955. § 27.13. Instructions to court. Instructions as to the elements of the offense of dishonorable failure to pay a debt in violation of UCMJ, Art 133, substantially in the language of the model instructions set forth in Model Instruction No. 116, Department of the Air Force publication "Court-Martial Instructions Drafting Guide", are sufficient to convey to the court the elements of the offense. ACM 9636, Journell (1955) 18 CMR 752. The accused was convicted of dishonorable failure to pay debts. In addition to instructing on the elements of the offense the law officer instructed that: the term "dishonorably" imported that the failure to pay a just debt was characterized by fraud, deceit, dishonesty, evasion or false representations or promises; unless the accused's failure or neglect to pay was characterized by some act of willful evasion, bad faith, deceit or false promise or denial of a just and proper obligation, or the neglect to pay the debt was for an unconscionable period, there could be no offense under Art 133; this does not imply negligence, indifference or irresponsibility toward the payment of a debt cannot be considered in establishing the existence or nonexistence of the improper state of mind essential to guilt of the offense involved; and under some circumstances evidence of negligence, indifference or irresponsibility could give rise to an inference of fraudulent design to evade payment. Held: The instructions considered as a whole were correct. They clearly emphasized the requirement of a finding of an improper state of mind to convict of the offense and do not suggest that the court could find the accused guilty of a dishonorable failure to pay a debt based on a mere finding that the accused failed to pay the debt for some period of time without any finding of an improper state of mind. (Citing ACM 8758, Robinson, 16 CMR 766; ACM 8194, Walden, 15 CMR 654; Winthrop's Military Law and Precedents, 2nd ed, p 715; ACM 4821, Friend, 5 CMR 638; ACM 5128, Maxwell, 7 CMR 632; CM 352775, Arnovits, 8 CMR 313, reversed on other grounds in U. S. v. Arnovits (No. 1434), 3 USCMA 538, 13 CMR 94; ACM 7391, Young, 12 CMR 939 and other cases.) Held also: Although the offense of dishonorable failure to pay a debt in violation of UCMJ, Art 133, does include a lesser offense under UCMJ, Art 134, there was no necessity under the circumstances of this case for instructions on the lesser offense since there was no dispute as to any material fact regarding the accused's debts and the state of the evidence was such that it clearly established the accused's conduct with respect to his failure to pay the indebtedness to be conduct unbecoming an officer and a gentleman and did not reasonably raise any issue that his conduct was of a lesser degree of culpability. (Citing ACM 381, Latham, 2 CMR (AF) 395; ACM 5128, Maxwell, 7 CMR 632; ACM 7391, Young, 12 CMR 939; ACM 6105, Andrews, 9 CMR 667; ACM 8758, Robinson, 16 CMR 766; U. S. v. Parker (No. 731), 3 USCMA 272, 12 CMR 28; U. S. v. Sandoval (No. 3001), 4 USMA 61, 15 CMR 61 and other cases.) ACM 9636, Journell (1955) 18 CMR 752. § 29. Drunkenness § 29.9. Evidence, sufficiency. The accused was convicted of being drunk and disorderly in uniform in a public place. The offense took place in Berlin, Germany in an apartment occupied by the accused's girl friend and her landlord and his family. The accused's girl friend, who was his drinking companion on the day in question, described him as "drunk" and "rather tipsy". She also testified the accused "can stand a lot of alcohol, but you could say that he was tipsy." The girl's landlord testified that the accused was "tipsy". He also said the accused smelled "strongly of alcohol" and that he later fell asleep in a military police jeep. It was stipulated that the military policeman who took the accused into custody would testify that he "had a smell of cognac on his breath but did not appear to be under the influence of alcohol." Held that: - the testimony of the accused's girl friend and her landlord as to the accused's condition was admissible. When relevant, a witness may properly give his impression of the state of intoxication of another. (Citing MCM, 1951, par 138e, p 242; U. S. v. Marshall (No. 548), 2 USCMA 54, 6 CMR 54.) Also, the evidence is sufficient to support the finding that the accused was intoxicated. drunkenness under such circumstances as to bring discredit upon the military service is punishable whether it occurs in a private residence or on a public street. The gravamen of the offense is not the locus as such, but the discrediting circumstance. - drunkenness by military personnel in the presence of citizens of a foreign country is discrediting to the service. since it also appeared that the apartment in which the offense took place was but one unit in a multiple-dwelling and also that, at least during a part of the time, the accused went into the hallway of the apartment, he was, while in the hallway, in a public place. (See People v. Richardson, 104 NY Supp2d 336.) United States v. Lowe (No. 4620), 4 USCMA 654, 16 CMR 228. § 29.13. Instructions to court. On a trial for being drunk and disorderly in quarters the following instruction was given: "That the accused did or failed to do the acts, as alleged; and the circumstances as specified." Held: The instructions are grossly inadequate but since the accused pleaded guilty his rights were not prejudiced. (Citing U. S. v. Jones (No. 426), 1 USCMA 276, 3 CMR 10; U. S. v. Clay (No. 49), 1 USCMA 74, 1 CMR 74.) NCM 315, Dittmar (1954) 16 CMR 364. § 29.15. Findings; exceptions. The court found the accused was, at Roswell, New Mexico, on or about 18 May 1954, drunk and disorderly in a public place, to wit: Eddie's Bar, 301 South Main Street. The convening authority approved only so much of the findings as found the accused was disorderly in a public place in violation of UCMJ, Art 134. Held: The rule that a convening authority's approval of "only so much" of a finding as is thereafter set forth expressly limits the approval to the matters thereafter recited and those matters which are omitted are impliedly disapproved, is limited to the extent that such action does not constitute disapproval of the omitted matter, if the matter set forth clearly indicates otherwise. (Citing U. S. v. May (No. 3450), 3 USCMA 703, 14 CMR 121; ACM S-1761, Doby, 2 CMR 704; ACM 4024, Pribis, 1 CMR 734; ACM S-4653, Morgan, 7 CMR 695; ACM 5393, Barina and Chubay, 6 CMR 655 and other cases.) Inasmuch as the convening authority's action does not indicate he did not disapprove the omitted matters, his action has the legal effect of disapproving the court-martial findings relating to the place of the offense, the date of the offense, the finding of drunkenness, and the name and address of the bar found as the public place in which the accused was drunk and disorderly. The legal effect of the action was to disapprove the finding of guilty since disorderly conduct in a city other than that alleged, on a date other than that alleged, and in a public place other than that alleged would clearly involve acts of which the accused was not apprised upon his arraignment and would constitute an offense different from that alleged. (See MCM, 1951, pars 74b (2) and 158; ACM 5883, Rodenburg, 7 CMR 758, 762; ACM 8732, Schoolcraft, 16 CMR 790; ACM 7227, Miles, 13 CMR 698 and other cases.) ACM S-9785, Hicks (1954) 17 CMR 786. § 33. Adultery; Occupying Bed With a Woman § 33.5. Charges and specifications. Whether or not a married officer's occupancy of a bed with a woman not his wife is an offense depends on the circumstances. An allegation that a married officer "wrongfully" occupied a bed with a woman not his wife at an air base states an offense since such conduct can be considered as conduct unbecoming an officer and a gentleman, discrediting to the service, or prejudicial to good order and discipline. The word "wrongfully" imports the necessary criminality. ACM 9462, McGlone (1954) 18 CMR 525. § 36. Indecent Conduct, Generally § 36.5. Charges and specifications. As a result The accused was charged with lewd and lascivious conduct alleged to have been committed on 13 June 1951. The charges were forwarded to the convening authority on 22 January 1953 and were referred for trial on 7 February 1953. Shortly thereafter, the defense requested a further pretrial investigation. of this further investigation, the convening authority directed the trial counsel to amend the charge sheet to allege the date of the offense as "on or about 1 March 1951." Defense counsel thereupon claimed the two year statute of limitations (under either the Articles for the Government of the Navy or under the Code) barred prosecution. Held that: - the amendment of the specification as to the date of the offense was permissible, inasmuch as the altered specification included no person, offense, or matter not fairly included in the original charge and there was no suggestion that the amendment misled the accused as to the nature or identity of the offense against which he was required to defend. Moreover, the amended specification did not allege the offense to have been committed as a date which would have been barred by the statute of limitations. - while lewd and lascivious conduct is not a continuing offense and each act constitutes a separate offense, time is not the essence of the crime. Furthermore, the specification which alleged a particular act of improper conduct committed in conjunction with a specifically named individual was characterized by sufficient specificity so that, together with the evidence of record, the accused could prevent his retrial for the same offense. (Citing U. S. v. Marker (No. 281), 1 USCMA 393, 3 CMR 127; U. S. v. Simpson (No. 1938), 2 USCMA 493, 9 CMR 123.) United States v. Brown (No. 4690), 4 USCMA 683, 16 CMR 257, affirming NCM 226, 11 CMR 618, 3 Dig Ops, CONDUCT, ETC § 36.6. § 36.6. Pleas and defenses. Amendment of specification as to date of offense as not alleging new offense barred by statute of limitations, see United States v. Brown, supra § 36.5. § 37. Indecent Assault § 37.3. Included offenses. Assault with a means likely to produce grievous bodily harm as included in indecent assault, see CM 372725, Broomfield, TRIAL § 85.1. § 39. Indecent Acts with a Child § 39.7. Evidence, generally. The accused was convicted of two offenses involving enticement of a female under fourteen years of age into a car for the purpose of taking indecent liberties. A number of defense witnesses testified as to the accused's generosity, his kindness, his fondness for children, his exemplary moral conduct, his honesty and his excellence as an officer. Many drew upon personal experiences and related specific acts of generosity by the accused relative to children and some female witnesses spoke of his meticulous moral conduct while in their company. On cross-examination the accused was questioned about transactions in his prior life which the government claimed were specific acts of misconduct. These were a bigamous marriage, the filing of a false annulment petition and the making of a false statement in an official form to the effect that he had divorced his first wife in 1928 or 1929 when he stated on the stand he had divorced her in 1918. Held: The evidence of specific acts of misconduct was admissible since the defense evidence of good character created an unfair prejudice in favor of the accused and invited rebuttal, within discretion of the law officer, by prosecution proof of specific acts of misconduct under the theory of curative admissibility or the rule that the prosecution could reply to the scope of the defense evidence. As a general rule defense evidence may not extend to specific acts or conduct indicative of good character. Character evidence on behalf of the accused is limited to evidence of general good character which may include testimony that he is a moral, well conducted person and law-abiding citizen together with his military record and standing and evidence directly pertaining to the specific traits of character involved in the general areas concerned in the offenses for which he is on trial. (Citing MCM, 1951, par 138f (2); I Wigmore on Evidence, 3d ed, 1940, sections 52-59, 192, 195.) Likewise, testimony |