offense. The failure to so instruct was prejudicial error. (Citing CM 356249, Guthrie, 6 CMR 190, pet den 7 CMR 84 and cases cited; CM 357671, Hays, 7 CMR 122; cf. CM 364724, Bush, 12 CMR 250; see also CM 364346, Robinson, 11 CMR 407; CM 365724, Ward, 12 CMR 429, pet den 13 CMR 142.) However, the error may be cured by affirming conviction of the lesser offense of which the evidence of guilty is compelling. (Citing U. S. v. Clark (No. 190), 1 USCMA 201, 2 CMR 107, and other cases.) [Ryker, J. A., concurring in the affirmance of the sentence disagrees with the conclusion that the failure to instruct on the lesser included offense was error for the reason that the lesser offense was not placed in issue. By the accused's own testimony he did intend to deceive at the time he altered the identification card and the offense was thus complete at that time. His later change in intention could have no effect to lessen his guilt concerning the original offense.] ACM S-9631, Whitesell (1954) 17 CMR 726. § 46.11. Variance. See CM 373956, Brothers, supra § 46.1. § 46.13. Instructions to court. Failure to instruct on wrongful possession of a false identification card without intent to deceive on a trial for possession of such a card with intent to deceive, see ACM S-9631, Whitesell, supra § 46.9. § 47. Use, Possession, or Sale of Drugs or Narcotics or § 47.1. Generally. The accused was found guilty under a specification alleging that he wrongfully had in his possession a hypodermic needle, a bent spoon, and an eye dropper for the purpose of injecting a habitforming drug, to wit: heroin. Held: The specification fails to allege an offense. (Distinguishing CM 361266, Ward, 9 CMR 516, where possession of implements for administering drugs was prohibited by a general order). UCMJ, Art 134, is broad and general in its language, covering acts prejudicial to good order and discipline, service discrediting conduct, and noncapital crimes. However, it is not a catch-all and does not confer general criminal jurisdiction upon courts-martial. Nor does it make every irregular, mischievous, or improper act a court-martial offense. (Citing Art 211, CGCMM 1949; MCM, 1949, par 183; NC & B, 1935, par 98; Winthrop, Military Law, p 723 and other cases.) CGCM 9813, Lefort (1954) 15 CMR 596. Vendee of marihuana as an accomplice in its sale, see United States v. Allums, TRIAL § 57.17. § 47.5. Charges and specifications. The accused was convicted of wrongfully and unlawfully selling codeine cough syrup, a compound containing two grains, more or less, of a habit forming narcotic drug, to wit: codeine. The evidence established that an airman hospitalized as a narcotic addict purchased twenty to twenty-five bottles of cough syrup containing codeine from the accused. Pursuant to an agreement with an OSI agent, this man purchased two bottles from the accused with marked bills. The substance delivered by the accused tasted and smelled like codeine to the purchaser who had been imbibing it for over two years. The two bottles were delivered by the purchaser to the OSI agent who took them to a chemist for analysis. It was stipulated that the cough syrup delivered by the OSI agent to the chemist contained codeine. The law officer instructed in part as follows: "The court is further advised that in order to find that the accused sold the habit forming narcotic drug alleged, the accused must have knowingly and consciously sold the habit forming narcotic drug alleged. If you find that the accused did consciously and knowingly sell the habit forming narcotic drug alleged, you may infer that such sale was wrongful and unlawful unless the contrary appears. The selling of a habit-forming narcotic drug is not wrongful and unlawful when a person is authorized by law to sell such habit-forming narcotic drug or when he sells it in the performance of his duty." Held that: -the wrongful and unlawful sale of a narcotic is an offense cognizable under UCMJ, Art 134. (Citing U. S. v. Allums (No. 5431), 5 USCMA 435, 18 CMR 59; U. S. v. Jones (No. 288), 2 USCMA 80, 6 CMR 80; U. S. v. Lampkins (No. 3749), 4 USCMA 31, 15 CMR 31; U. S. v. Ford (No. 4192), 4 USCMA 611, 16 CMR 185.) -the specification is sufficient to allege an offense although it alleges the sale of a common type cough syrup since the fair and reasonable interpretation of the specification is that it alleges the wrongful and unlawful sale of a habit forming narcotic drug, codeine, and the allegations as to cough syrup are merely descriptive of the form in which it was sold. - the specification is sufficient to allege an offense although it alleges the sale of codeine cough syrup which can be bought on the open market in limited quantities without a prescription since trafficking in any substance containing a habit forming narcotic can reasonably be considered an offense and the addition of the words "wrongfully" and "unlawfully", importing criminality, is sufficient to apprise the accused that the act charged is alleged to have been committed under discreditable or disorderly circumstances. While the fact that a habit forming narcotic drug can be lawfully purchased in the open market or lawfully obtained in some other manner, for a legitimate purpose may amount to a defense in a prosecution for the sale of the same in some circumstances, the evidence negatives the existence of any such circumstances in the instant case. (Citing CM 307097, Mellinger, 60 BR 199; ACM 9462, McGlone, 18 CMR 525; ACM 10160, Thiel, 18 CMR 934.) in the absence of a motion to make more definite and certain, the specification herein was sufficient notwithstanding the fact that it failed to allege the name of the purchaser. (Citing U. S. v. Karl (No. 1904), 3 USCMA 427, 12 CMR 183.) under the above state of facts and in view of the fact that codeine cough syrup was inaccessible to the purchaser without the intervention of someone in the hospital; was not prescribed for him; that he received cough syrup from the accused; established circumstantially and beyond a reasonable doubt that the cough syrup delivered to the OSI agent was the cough syrup the purchaser had received, from the accused. the instructions were correct and properly state the presumption of wrongfulness of the sale of a narcotic in the absence of any evidence to the contrary. (Citing ACM 8695, Yates, 16 CMR 629.) as the offense of wrongful sale of a narcotic drug does not have a prescribed maximum punishment set forth in the Table of Maximum Punishments, the punishment for a closely related offense may be utilized. The offense charged herein is closely akin to the offense of wrongful use and possession of a habit forming drug, for which is prescribed a maximum punishment of dishonorable discharge, total forfeitures, and confinement at hard labor for five years. Accordingly, such a maximum sentence would be applicable in the instant case. (Citing MCM, 1951, par 127c, p 214; U. S. v. Alexander (No. 2334), 3 USCMA 346, 12 CMR 102.) ACM 10261, Simmons (1955) 19 CMR § 47.7. Evidence, generally. Chemical color tests showing presence of morphine as admissible in proof of wrongful use of morphine, see United States v. Ford, EVID § 189.21. § 47.9. Evidence, sufficiency. The accused was convicted of wrongful use of morphine. The prosecution case consisted of two stipulations. The first pertained to the chain of custody of a urine specimen obtained from the accused. The second was to the effect that if a certain chemist were sworn as a witness he would testify that he analyzed the specimen and determined that morphine was present and that it could only be there from taking a morphine derived narcotic. The defense was based on the possibility of a mix-up in prescriptions. The accused testified that about the time of the alleged offense, he was using sleeping pills which had been properly prescribed for him. The NCO in charge of the pharmacy identified the prescription for sleeping pills. This prescription bore the number N-7270 and the pharmacist testified that it did not call for any morphine. However, the number on the box of pills given the accused was N-7269 rather than N-7270. The pharmacist could not determine whether the accused's prescription had been mixed with the prescription of the other number nor could he determine if the other prescription called for morphine because the other prescription had been lost from the prescription files. The defense also presented the testimony of the arresting OSI agent to the effect that the accused was not a narcotics suspect and was only arrested because he was trying to enter a house that was being raided. He also stated he had seen people under the influence of narcotics and the accused did not appear to be a user. Held: By the two stipulations the prosecution presented to the court-martial a prima facie case of wrongful use of morphine by the accused (ACM 8695, Yates, 16 CMR 629, pet. den. 23 Aug. 1954; U. S. v. Ford (No. 4192), 4 USCMA 611, 16 CMR 185). However, the defense evidence rebutted the prima facie case and the prosecution elected not to produce any further evidence. To affirm the conviction, it must appear that the accused used a substance identified as morphine, that his use of such substance was willing and conscious, and that he either knew that the substance was morphine or the lack of such knowledge was not the result of carelessness or fault on his part. On the basis of evidence herein the prosecution did not prove its case. (Citing U. S. v. Lampkins (No. 3749), 4 USCMA 31, 15 CMR 31; ACM 8753, Smith, 16 CMR 622; MCM, 1951, par 213a.) ACM 9137, Taylor (1954) 17 CMR 753. See ACM 8753, Smith, infra § 47.13. § 47.13. Instructions to court. An instruction to the effect that the use of a habit-forming narcotic drug is presumed to be wrongful unless the contrary appears is a correct and proper instruction. The instruction as to the effect of the presumption on the possession of a drug, as found in Department of the Army Pamphlet No. 27-9, Military Justice Handbook, the Law Officer (No. 136, p 86), correctly states the statutory rule of evidence which, in cases of this class, makes the possession of narcotics sufficient to authorize conviction, unless the possession thereof is explained to the satisfaction of the court. Since use necessarily includes possession the instruction in this case was correct. ACM 8695, Yates (1954) 16 CMR 629. The accused was found guilty of wrongful use of morphine. He testified that prior to the night of the offense he had been under medical treatment for sinus headaches. He maintained that on the night in question he had another headache and a girl he was visiting suggested he take an injection to cure it and he took the injection without asking what it was and that he did not know that he had taken morphine. He admitted that he knew the girl who gave him the shot was not a doctor. Nevertheless, so severe was his headache that he would have permitted her to administer the shot even if he had known that it was morphine. The law officer instructed that the defense had introduced evidence to show that at the time of the offense the accused was ignorant of the fact that the shot taken was morphine. With respect to this evidence he advised that if the accused was laboring under such ignorance and if his ignorance was honest and reasonable under the circumstances, he could not be found guilty of the offense charged. However, it was essential to this defense that his ignorance be both honest and reasonable under the circumstances. If his ignorance was not reasonable, that is, if it was the result of carelessness or fault on his part, it was not a defense. Held: The instructions were correct and appropriate since they required the court to acquit the accused if they found that he did not know that the substance contained morphine and his ignorance of that fact was not the result of his own carelessness, thus furnishing the court a proper stand (See People v. Gory, 28 ard for determining guilt or innocence. Cal2d 450, 170 P2d 433; State v. Labato, 80 A2d 617. Distinguishing U. S. v. Lampkins (No. 3749), 4 USCMA 31, 15 CMR 31.) Held also: The findings of guilty are correct in fact since the accused was either aware that he was taking a shot of morphine or else was grossly negligent under the circumstances in not ascertaining the nature of the substance being injected into his body. ACM 8753, Smith (1954) 16 CMR 622. On a trial for wrongful possession of marihuana the evidence established that a packet containing marihuana was found in the breast pocket of a suit belonging to the accused. Three witnesses testified that the accused had on prior occasions loaned the suit to another airman who had been seen wearing it in an area where marihuana could be obtained. Two other witnesses testified that when the accused was questioned about the packet and its contents he stated he did not know what the substance was and that he had never seen the packet before. The president instructed on the elements of the offense in part as follows: "That at the time and place alleged, the accused wrongfully had in his possession one ounce, more or less, of a habit forming drug, as alleged, marihuana." Held: In order to be convicted of the offense charged the accused must have had an awareness or consciousness of the physical presence of the drug on his person and the instruction given that the accused's possession must be "wrongful" was not sufficient to cover the field of awareness and conscious knowledge since a negligent act may be wrongful. It was error for the president to leave the members of the court unguided by his failure to give a more limiting instruction. (Citing U. S. v. Lampkins (No. 3749), 4 USCMA 31, 15 CMR 31.) If the accused's knowledge of his possession of marihuana is reasonably raised as a factual issue there must be an instruction on knowledge regardless of whether knowledge is an element of the offense or whether lack of knowledge is an issue to be raised affirmatively as a defense. (Citing U. S. v. Wallace (No. 988), 2 USCMA 595, 10 CMR 93.) Considering the accused's statements denying knowledge together with the other evidence that another person had worn the suit and the drug was found in a little-used pocket, the evidence is sufficient to justify the issue of the accused's knowledge of his possession being submitted to the court for determination. Accordingly, the failure to include any charge on that subject in the instruction was prejudicial to the accused. United States v. Hughes (No. 5076), 5 USCMA 374, 17 CMR 374, reversing ACM S-9000, Hughes, 16 CMR 559. On a trial for wrongful use of narcotics, an instruction that wrongful use is not established unless the use by the accused is shown beyond a reasonable doubt to have been a conscious use would be improper. Knowledge of the presence of the object is the essence of the offense of wrongful possession. However, knowledge of the character of the object and the unlawfulness of the possession is immaterial. Thus, knowledge of the presence of the object, when reasonably placed in issue by the evidence, partakes of the nature of an element of the offense and must be included in instructions on the elements. On |