§ 57.11. Effect of plea of guilty.

The accused pleaded not guilty to an assault upon a named person by striking him with a club thereby intentionally inflicting grievous bodily harm but guilty to a consummated assault upon the named person by striking him with a club on the date and at the place alleged. He was found guilty of assault with a dangerous weapon. Upon arraignment, in explaining the effect of the plea, the law officer told the accused that his plea amounted to a plea of guilty to assault and battery and that he could be found guilty of that offense without further proof. In instructing the court, the law officer stated that the accused had pleaded guilty to aggravated assault and battery and that his plea admitted every element of the offense. Held: Considering the statements at the arraignment, the full import of the accused's plea of guilty did not constitute a judicial confession of aggravated assault and battery with a dangerous weapon. Therefore, the instructions by the law officer to that effect were erroneous. However, all possibility of prejudice can be removed by affirming only so much of the findings of guilty as pertain to assault and battery to which the accused uncontrovertedly pleaded guilty. ACM 8994, Catron (1954) 17 CMR 516.

§ 57.17. Witnesses.

See 53 Am Jur, Trial §§ 775 et seq.

The accused was charged with wrongfully receiving $5.00 from a trainee for services rendered in obtaining a pass. The evidence disclosed that the trainee was asked by his companions to go to town with them and the trainee replied that he had no pass. One of his companions said that he possibly could get one for him. Later the accused met the trainee and the others with the necessary passes. According to the trainee, a few minutes after the passes were distributed, the accused said that "I could give him a couple of dollars now and the other three when I got the change" and that "It would be more or less a gift of appreciation." The trainee then gave the accused the five dollars. The law officer denied defense

requests to instruct on accomplice testimony. Held that:

(Citing

- both the giver and receiver of a bribe are accomplices. Egan v. U. S. (CA DC Cir 1923) 287 F2d 958; MCM, 1951, Appx 6c, p 489.) [Latimer, J., dissented, stating that he could not picture this victim, who was a trainee with not over thirty days' service, as being a participant in the crime for which the accused stood convicted.]

- it is error for a law officer to refuse, in a proper case, a request for an instruction on accomplice testimony, which reasonably puts him "on notice" that the issue is essential to a proper finding. (Citing Egan v. U. S. (CA DC Cir 1923) 287 F 958; Lett v. U. S. (1926) 15 F2d 686; U. S. v. Phillips (No. 1244), 3 USCMA 137, 11 CMR 137. Distinguishing Caminetti v. U. S., 242 US 470, 61 L ed 442, 37 S Ct 192; Holmgren v. U. S., 217 US 509, 54 L ed 861, 30 S Ct 588.) Accordingly, in the instant case, the law officer's failure to instruct on accomplice testimony, as

expressly requested to do so, was prejudicial to the accused, inasmuch as the accomplice was the only witness who implicated the accused and the accomplice, by his own admission, had changed his testimony from that previously given.

-the fact that the requests for instructions on accomplice testimony were in the alternative, i.e., one was framed so as to advise the court that the trainee and his companion were the accused's accomplices as a matter of law, and the other submitted the question to the court as an issue of fact to be determined by it, is not material. Unless the law officer adequately covered the substance of the request in his instructions, there was an abuse of his discretion (U. S. v. Offley (No. 1841), 3 USCMA 276, 12 CMR 32).

- furthermore, the general advice to the court on its power to judge the credibility of all witnesses and that the trainee and his companions knew that they could be punished for buying passes and that this circumstance was to be considered in determining the truthfulness of their testimony, was not an adequate substitute for the requested instruction. United States v. Bey (No. 4254) ↳ USCMA 665, 16 CMR 239.

In language taken from par 153, MCM, 1951, the law officer instructed on the credibility of witnesses and various factors to be considered in determining credibility, he defined impeachment of a witness and told the court that whether the credibility of a witness had been successfully impeached was a question to be determined by each member of the court. No instruction was given on the weight to be given testimony of witnesses who allegedly had been impeached and none was requested. Held: Considering the instructions as a whole and bearing in mind the absence of a request for specific additional instructions, there was no prejudicial error in the failure of the law officer to instruct on the weight of the testimony of witnesses who allegedly had been impeached. (Citing ACM 6116, Urich, 8 CMR 799, 804; 53 Am Jur, Trial sec 780; 120 ALR 1444-1449, 1453; Fisk v. U. S., 279 F 12; Weaver v. U. S., 11 F2d 603.) ACM 7761, Schrieber (1954) 16 CMR 639.

The defense requested an instruction to the effect that if the court found some of a witness's testimony to be false it was not required to disbelieve all of the testimony of that witness. The instruction was refused. Held: The requested instruction was simply another way of stating that it was within the province of the court to determine the facts and that the final determination as to the weight of the evidence and the credibility of witnesses rested solely upon the court. On those matters the court was fully instructed and accordingly there was no prejudicial error in refusing to give the requested instruction. (See U. S. v. Sandoval (No. 3001), 4 USCMA 61, 15 CMR 61; U. S. v. Burden (No. 1038), 2 USCMA 547, 10 CMR 45; Cohen v. U. S., 282 F 871; Mullaney v. U. S., 82 F2d 638; People v. Plumeyer, 202 P 888; see, however, U. S.

v. Bey (No. 4254), 4 USCMA 665, 16 CMR 239.) ACM 8913, Torbett (1954) 17 CMR 650.

[See 53 Am Jur, Trial §§ 527, 528.]

The accused was charged with wrongfully selling marihuana. A witness testified that he obtained four packages supposed to contain marihuana from the accused for which he agreed to pay $20. The witness denied requesting the accused to secure marihuana for him. A confession of the accused was received in evidence in which he admitted obtaining some marihuana, four packages of which he gave the witness in return for $20. Later the accused testified that he merely acted as an agent for the witness in that the witness asked him to purchase the narcotic for him. He denied receiving any payment therefor and stated his confession must have been a mistake. The law officer refused to instruct that the witness was an accomplice and that the accused could not be convicted upon the uncorroborated testimony of an accomplice if such testimony was self-contradictory, vague, or uncertain. He also refused to instruct that the uncorroborated testimony of an accomplice, even though apparently credible, is of doubtful integrity and is to be considered with great caution. Held: The vendee of marihuana qualifies as an accomplice in its sale. (Citing U. S. v. Bey (No. 4254), a USCMA 665, 16 CMR 239.) However, the refusal to give the first instruction was correct since the accomplice's testimony was not uncorroborated because the accused's confession furnished substantial corroboration. Moreover, although it is unnecessary to decide the point, it may be that the provisions of par 153a, MCM, 1951, relating to the uncorroborated testimony of an accomplice were not intended to be applied by the members of the court, but rather were meant to be applied by the law officer and appellate bodies. Under this view the court would be concerned with corroboration only in connection with their right to overrule a law officer's action on a motion for findings of not guilty. Under this approach the members of the court would pass on the issue of guilt or innocence solely in the light of the standard of reasonable doubt, with appropriate instructions on credibility. Also under this view the law officer would at no time be required to instruct that a conviction could not be founded on the uncorroborated testimony of an accomplice. If he discovered a want of corroboration he would simply instruct the court that, as a matter of law, it could not convict. However, if he found corroboration, the case would go to the court for findings and thereafter the correctness of the law officer's view with respect to corroboration would be tested by the reviewing authorities. Refusal to give the second requested instruction was also proper because there was corroboration. However, the requested instruction was sufficient to place the law officer on notice that appropriate advice to the court was desired by the defense concerning the special need for close scrutiny of accomplice testimony. However, the failure to give such instruction was not prejudicial in view of the compelling evidence of guilt. (Cf. U. S. v. Burden (No. 1038), 2 USCMA 547, 10 CMR 45; U. S.

v. Phillips (No. 1244), 3 USCMA 137, 11 CMR 137.) United States v. Allums (No. 5431), 5 USCMA 435, 18 CMR 59.

[See 53 Am Jur, Trial §§ 739-741.]

The accused was tried for a sex offense. After the court had closed to deliberate it reopened and asked the law officer for a definition of uncorroborated testimony. In the course of defining the phrase the law officer stated that where there is a failure or lack of testimony or evidence to corroborate the testimony or evidence given by an accused, then the testimony of the accused becomes uncorroborated. The defense objected on the ground that the law was applicable to all witnesses. The law officer refused to modify his statement at that time but later he reopened the court and rephrased the instruction to state that where there is a failure or lack of testimony or evidence to corroborate the testimony or evidence given by a witness, then the witness becomes uncorroborated. The defense then stated that his objection was withdrawn. Held: The instruction on corroboration, as originally phrased, was erroneous since the law officer should not have singled out the testimony of the accused for use in the definition of corroboration. However, any error was cured by the subsequent clarifying instruction which fully met the objection raised by the defense.

Held also: Furthermore, even conceding arguendo that the law officer should have done more than he did, the express withdrawal by the defense counsel of his objection leaves no issue for review on appeal. (Citing U. S. v. Henry (No. 3187), 4 USCMA 158, 15 CMR 158; U. S. v. Fisher (No. 3318), 4 USCMA 152, 15 CMR 152; U. S. v. Vanderpool (No. 4651), 4 USCMA 561, 16 CMR 135. Cf. U. S. v. Smith (No. 3370), 5 USCMA 314, 17 CMR 314.) United States v. Massey (No. 5581), 5 USCMA 514, 18 CMR 138, reversing on other grounds CM 371333, Massey, 16 CMR 316.

The accused was convicted of bribery and conspiracy to commit bribery. One O. testified that he paid the accused $50 to have his name removed from a list for overseas shipment. One H. testified that in his capacity as "screening clerk" he had selected O. for shipment, that the accused contacted him and said he wanted O. removed from the shipment and that he told the accused he could do nothing as the matter had passed out of his hands. Later the accused called him again and told him that higher headquarters would verify the deferment of the shipment of O. He reported this matter to his section head who made a phone call and after completing it told him to take O. off the shipment. A few days later the accused gave him some money. A third witness B. testified that the accused and another told him they could keep him off overseas shipment for a certain sum of money. However, he stated he never paid any money and that to his knowledge they did nothing to keep him off shipment. The law officer included in his instructions statements emphasizing that the testimony of the accomplice, even though apparently credible, should be considered with great caution and that a conviction could not be sustained upon the uncorroborated testimony of an accomplice if such testimony was self-contradictory, uncertain, or improbable. How

ever, he did not directly enjoin the court in his instructions that as a matter of law particular witnesses were accomplices. Instead, he set forth the elements that made one an accomplice and informed the court that if they found these elements to exist with respect to any witness they should consider him an accomplice. He further informed the court that the person who gives a bribe and a person who receives the bribe are as a matter of law accomplices of one another. Held: The general rule applied in the federal courts is that if there is no dispute in the evidence, which as a matter of law establishes a witness to be an accomplice of the accused, the judge should instruct the jury as a matter of law that such witness is an accomplice, but if the evidence is controverted as to whether a witness is an accomplice, and the jury may properly find otherwise, then the judge should leave to the jury's determination, guided by proper instructions, the question of whether or not the witness was, in fact, an accomplice of the accused. (Citing Egan v. U. S., 287 F 958; Holmgren v. U. S., 217 US 509, 54 L ed 861, 30 S Ct 588; Freed v. U. S., 266 F 1012.) This rule is applicable to trials by courts-martial and in an appropriate case the law officer, when requested, must instruct on the close scrutiny to be accorded accomplice's testimony. (Citing U. S. v. Bey (No. 4254), 4 USCMA 665, 16 CMR 239; U. S. v. Allums (No. 5431), 5 USCMA 435, 18 CMR 59; U. S. v. Phillips (No. 1244), 3 USCMA 137, 11 CMR 137.) Thus, since the giver and the receiver of a bribe are, as a matter of law, accomplices, O. was an accomplice of the accused and the law officer should have instructed the court to that effect. However, his failure to so instruct was not prejudicial since, if the court followed the instructions given, it was absolutely necessary that they arrive at the conclusion that O. was an accomplice. (Citing UCMJ, Art 59(a); U. S. v. Bey (No. 4254), 4 USCMA 665, 16 CMR 239; U. S. v. Allums (No. 5431), 5 USCMA 435, 18 CMR 59.) With respect to H. and B., there was no clear showing that either were accomplices of the accused. Accordingly, the law officer properly left it up to the members of the court to determine for themselves whether or not either occupied the status of accomplice. ACM 10050, Graalum (1955), 19 CMR

After instructing generally on the credibility of witnesses, the law officer stated: ".. The defendant is permitted to become a witness in his own behalf, but in weighing his testimony you have a right to consider that he is a highly interested witness and very much interested in the outcome of the case." Held: The testimony of an accused, when he elects to take the stand and testify in his own behalf, is to be regarded in the same light as that of any other witness. (Citing Alexis v. U. S., 129 F 60.) In instructing the jury concerning credibility of witnesses, the judge may state that the interest of any witness in the outcome of the case may be taken into consideration by them in assessing the reliability of his testimony and this rule applies to the accused in a criminal case. (Citing Bridges v. U. S., 199 F2d 811; Fisher v. U. S., 149 F2d 28; U. S. v. Freedman, 268 F 655; Belvin v. U. S., 260 F 455; Reagan v. U. S., 157 US 301, 39 L ed 709, 15 S Ct 610.) It is necessary that the court members be