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in rebuttal of defense character evidence prior to findings may not extend to specific acts of misconduct on the part of the accused. However, under the theory of curative admissibility one party to the litigation who has succeeded in having otherwise incompetent proof received into evidence is precluded from objecting to rebuttal countering testimony of the same sort proffered on the part of his opponent. (Citing I Wigmore on Evidence, 3d ed, 1940, sec 15, pp 305307, rules 2 and 3, see also sec 195.) Thus, whether based on the theory of curative admissibility or on the provision of the Manual suggesting that rebuttal character evidence may be introduced within the scope of the character evidence introduced by the accused, if character testimony on behalf of the accused has extended beyond the realm of general character or the specific traits of character involved in the offenses in issue, the prosecution rebuttal may likewise encompass that broadened field whenever it is necessary in order to remove an unfair prejudice which might otherwise have ensued from the original evidence. Thus, if the character testimony received on behalf of the accused includes evidence of specific acts indicative of good character, albeit admitted erroneously, the prosecution may rebut by proof of specific acts of misconduct within the discretion of the law officer. However, such evidence of specific acts of misconduct is limited to the areas covered by the defense evidence of acts of good conduct. (Citing I Wigmore on Evidence, 3d ed, 1940, sections 15, 195; U. S. v Haimson (No. 4549), 5 USCMA 208, 17 CMR 208; MCM, 1951, par 138f (2).) ACM 9711, Jacks (1955) 18 CMR 912.

§ 43. Using Insulting or Defamatory Statements

§ 43.1. Generally.

The accused was charged with a violation of UCMJ, Art 134. The specification alleged that the accused at a specified place and on a named date ". . . was disrespectful in language toward Airman First Class [name of airman] his superior airman, who was then in the execution of his office, by saying to him 'Oh, you' or words to that effect." Held: The above specification states an offense in violation of UCMJ, Art 134, and recognition of such an offense is not precluded by UCMJ, Arts 88, 89, 91 and 117. (Cf. CM 366483, Brown, 13 CMR 161; U. S. v. Norris (No. 1756), 2 USCMA 236, 8 CMR 36; U. S. v. Johnson (No. 2097), 3 USCMA 174, 11 CMR 174; U. S. v. Rios (No. 2488), 4 USCMA 203, 15 CMR 203; U. S. v. Deller (No. 1859), 3 USCMA 409, 413, 12 CMR 165, 169; U. S. v. Hallett (No. 3440), 4 USCMA 378, 15 CMR 378; U. S. v. Hamilton (No. 4325), 4 USCMA 383, 15 CMR 383.) An airman first class, being below the rank of noncommissioned officer, has no office in the sense that that term is used in connection with noncommissioned officers, warrant officers and commissioned officers. However, one of the connotations of the phrase "in the execution of his office" is that the person to whom the phrase is applied was in the performance of his duty and since there was no objection in this case to any uncertainty in the use of the quoted phrase, the specification may be construed as alleging, as a violation of UCMJ, Art 134, the use of disrespectful language by the accused toward his superior airman

who was then in the performance of his duty. (Citing MCM, 1951, pars 170a and 169a; Winthrop's Military Law and Precedents, 2nd ed, 1920, p 571.)

Held also: Since the offense of disrespect toward a superior airman in the performance of his duty in violation of UCMJ, Art 134, is not listed in the Table of Maximum Punishments and since it is most closely related to the offense of being disorderly in command, quarters, station, camp, or on board ship, the prescribed punishment for the latter offense, namely, confinement at hard labor for one month and forfeiture of two-thirds pay for one month is applicable. ACM S-9083, Spigner (1954) 16 CMR 604.

§ 43.17. Punishment.

Punishment for disrespectful language toward a "superior airman then in the execution of his office", see ACM S-9083, Spigner,

supra § 43.1.

§ 44.1. Generally.

§ 44. Communicating Threats

The accused was convicted of communicating a threat. The evidence showed that while he was a prisoner in a stockade he was taken from his cell for the purpose of a search. When this purpose was accomplished he was directed to return to his cell but failed to comply with the direction and an air policeman grasped him by the arm to lead him back to his cell. At this the accused declared "If I am not walking fast enough for you, don't push me or I'll knock your teeth down your throat."

Held that:

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communicating a threat to any person in the military establishment is directly and palpably prejudicial to good order and discipline of the armed forces and since it is not otherwise provided for in the Uniform Code of Military Justice it is properly alleged as a violation of UCMJ, Art 134. (Distinguishing U. S. v. Norris (No. 1756), 2 USCMA 236, 8 CMR 36; U. S. v. Johnson (No. 2097), 3 USCMA 174, 11 CMR 174.) [Brosman, J., dissented on the ground that UCMJ, Art 117 has preempted the field of threat communication, with the result that there is no area left within which UCMJ, Art 134 may operate.]

-the provision for a maximum penalty in simple threat cases of dishonorable discharge, total forfeitures and confinement for three years, a penalty which is in some instances less than that which might be imposed for an executed assault and greater in others, is designed to prevent such threats regardless of the class of individuals against whom the threat is directed. There is no abuse of discretion in the establishment of such penalty.

-the language of the accused constitutes a threat. Although the prefatory statement "Don't push me" implies a condition it does not negative a present determination to injure. The condition, if any, was one the accused had no right to impose. (Citing U. S. v. Stickrath, 242 F 151; U. S. v. Jasick, 252 F 931; U. S. v. Metzdorf, 252 F 933.) United States v. Holiday (No. 3659), 4 USCMA 454, 16 CMR 28.

§ 44.9. Evidence, sufficiency.

The accused was convicted of communicating threats. The evidence showed that when men came to return him to his organization from a guardhouse where he had been held, he requested that he be kept at the guardhouse and stated that if he returned to his unit he would kill his company commander. His company commander was not present when the alleged threats were made but he was advised of them by the persons before whom they were uttered. Held: Once it clearly appears that a person subject to the Code has announced an avowed present determination or intent to injure presently or in the future, the offense of communicating a threat is complete. There is no necessity for establishing as an essential element of the offense that the accused communicated this determination directly to the person threatened. (Citing U. S. v. Metzdorf, 252 F 933.) However, the evidence does not show that any threat was made. Rather than demonstrating an avowed present determination or intent to injure presently or in the future, the accused's words and actions reveal a fixed purpose to avert such a result. [Latimer, J., dissented.] United States v. Rutherford (No. 3625), 4

USCMA 461, 16 CMR 35.

See also United States v. Holiday, supra § 44.1.

§ 44.17. Punishment.

See United States v. Holiday, supra § 44.1.

§ 45. Breach of Restriction

$45.9. Evidence, sufficiency.

The accused was convicted of breach of restriction. He had reported to a personnel processing squadron. The commander of that squadron testified that due to the short stay of personnel and in order to facilitate processing it was necessary that all personnel be restricted to the base. He stated that information as to this restriction was given by means of an information sheet given to each man as soon as he moved in and that a letter was also posted on the bulletin board and that a verbal briefing was given all troops in a formation. The accused was found off the base. At the time the accused had been at the base only three days. The information sheet referred to by the squadron commander was dated the day after the accused's arrival. Held: A conviction for breach of restriction cannot be sustained unless the record discloses that the accused had received knowledge of his restricted status. (Citing ACM S-2504, Thornton, 5 CMR 407; ACM S-3435, Ervin, 5 CMR 699; CM 334698, Price (BR), 1 BR-JC 239.) The evidence herein is insufficient to establish either actual or constructive knowledge on the part of the accused of his restricted status. There is no evidence that the order of restriction was of such a notorious nature that the accused could have been charged with knowledge thereof. Furthermore, the information sheet referred to by the commander was dated the day after the accused's arrival so that he could not have received it. Neither is there any evidence to show when the

letter referred to was posted on the bulletin board or what its contents were. Nor was there anything to indicate the accused was a person whose duty it was to examine the bulletin board or that he had been told to do so periodically. Nor was there any evidence that the accused attended any troop assembly where notice of the restriction was given or even that such an assembly was in fact held prior to his alleged breach of restriction. (Citing ACM 5985, Sarae, 9 CMR 633; CM 367978, Bruce, 14 CMR 260, 263; CM 358808, Haney, 9 CMR 386 and other cases.) ACM S-9781, Bryant (1954) 17 CMR 896.

§ 45.11. Variance.

The accused was convicted of breach of restriction under a specification which alleged a breach "on or about 19 September 1953". The restriction order, signed by the accused and introduced as a prosecution exhibit, was dated 19 September 1953. However, the original copy of the restriction order, introduced as a defense exhibit, established that the accused did not affix his signature until 21 September 1953. Other evidence, including the testimony of the accused, established that he had absented himself from his station subsequent to the time he signed the restriction order. Held: The evidence was fully sufficient to establish the imposition and breach of restriction on 21 September and the variance in the dates was not fatal. (Citing U. S. v. Squirrel (No. 657), 2 USCMA 146, 7 CMR 22.) NCM 335, Boland (1954) 16 CMR 416.

§ 46.1. Generally.

§ 46. False Writing

A specification alleged that the accused did wrongfully counterfeit for the purpose of obtaining his release from confinement at the post stockade, a certain instrument purporting to be a letter from a pastor of a certain church to the commanding general, the accused then well knowing the same to be false. By exceptions and substitutions the court found that the accused did wrongfully write and mail or cause to be mailed a letter for the purpose of obtaining his release from confinement at the post stockade, said letter purporting to be from the pastor of a certain church to the commanding general, the accused then well knowing the same to be false.

Held that:

the word "counterfeit" as used in a specification alleging the counterfeiting of a letter may be given its ordinary dictionary definition: to imitate, or make a copy of, with a view to deceiving; to forge, to make with fraudulent intent (anything) in imitation of, or resemblance to, something else. (Citing Webster's New International Dictionary Unabridged, 2d ed, 1934, p 607; see also UCMJ, Art 132(2)(c), using the words "forge" and "counterfeit" as equivalents.)

- the specification states an offense since it is likely that if a prisoner prepares a false plea for clemency in the form of a letter addressed to his commanding officer, for the purpose of securing

his release from the stockade, the prisoner will, in the near future use the letter to secure his purpose. Thus, there is a potential or likelihood of harm since it is clearly detrimental to good order to plague a commanding general with counterfeited pleas for clemency. This being so, it is immaterial whether or not the false clemency plea is technically a false official statement or a forgery for no attempt was made to allege those offenses and all that is required to constitute an act a disorder in violation of UCMJ, Art 134, is a clear potential for harm to good order and discipline. (Citing U. S. v. Blue (No. 2778), 3 USCMA 550, 13 CMR 106.) [Ivory, J.A., dissenting, states that in the absence of an allegation of mailing, the specification does not state an offense since the writing. of a false letter unaccompanied by any act to get the letter into official channels does not constitute a criminal offense. Although the mere possession of false official documents may constitute a military offense, the doctrine so holding should not be extended to writings of a private nature.]

- although the proof showed and the court found that the letter was in fact mailed, such was not alleged. However, that part of the findings may be disregarded as surplusage (U. S. v. Long (No. 464), 2 USCMA 60, 6 CMR 60). Also, the allegation that the accused "counterfeited" a letter is substantially the same as the finding that he "wrongfully wrote a letter purporting to be from another." The variance was not misleading and was immaterial. (Cf. U. S. v. Hopf (No. 372), 1 USCMA 584, 5 CMR

12.) CM 373956, Brothers (1954) 17 CMR 396.

[See 14 Am Jur, Counterfeiting $ 2.]

§ 46.9. Evidence, sufficiency.

The accused was found guilty of wrongful possession of a false Identification Card with intent to deceive. Upon his arrest he was searched and an Air Force Identification Card was found in his wallet which showed his date of birth as 25 June 1931. His actual date of birth was 25 June 1934. He testified that some time prior to the date alleged he altered the date of birth on the card because he was planning to attend a party where being a minor would prevent his entrance. However, he testified that he did not use the card on that occasion or any other occasion. On the date alleged he had been in a night club and had been served intoxicants but he had not been asked to show his card. Held: The accused's wrongful possession of an altered and false United States Armed Forces identification card with intent to deceive was established beyond reasonable doubt. (Citing U. S. v. Blue (No. 2778), 3 USCMA 550, 13 CMR 106, 112; CM 273713, Smith, unpublished opinion, 4 Bull JAG 139.)

Held also: Notwithstanding the fact that the offense alleged was proved beyond a reasonable doubt, the findings of guilty cannot be affirmed in their entirety because the defense placed in issue the lesser offense of wrongful possession of an altered and false identification card without intent to deceive knowing the same to be false and altered and the president did not instruct on this

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