strict impartiality which must prevail in his official business relations. Such conduct unquestionably injured the reputation of the armed forces and it matters not that the accused gained no personal pecuniary advantage nor that the government suffered no pecuniary loss. (Citing MCM, 1951, par 28a (3); Legal and Legislative Basis, MCM, 1951, pp 42, 43; U. S. v. Marker (No. 281), 1 USCMA 393, 3 CMR 127; CM 235011, Goodman, 21 BR 243; CM 234644, Cayouette, 21 BR 97; CM 17169, MacDowell, 32 BR(ETO) 1; ACM 5615, Sippel, 8 CMR 698, affd U. S. v. Sippel (No. 2689), 4 USCMA 50, 15 CMR 50; and other cases.)

the specification was not fatally defective because the offense was alleged to have occurred over a period of more than one year. It is proper in military law to charge as conduct in violation of the general article, a series of acts which, considered together, constitute a course of conduct of a particular type in violation of the article. (Citing ACM 6822, Francis, 12 CMR 695, 701-702; MCM, 1951, Appx 6a (7); U. S. v. Schumacher (No. 680), 2 USCMA 134, 10 CMR 10, 12; and cases cited therein; CM 264296, Simms, 42 BR 81, 89; ACM 5651, Robinson, 7 CMR 618.)

the law officer properly denied a defense motion to dismiss the specifications for vagueness and indefiniteness since the specifications sufficiently apprised the accused of the offense he had to defend against. Furthermore, it appeared that three investigations under UCMJ, Art 32, were conducted into the alleged offenses, that the defense counsel requested by the accused was present at each investigation and was furnished a copy of the entire Art 32 investigation prior to trial, and that the defense counsel at trial displayed a thorough knowledge of the precise nature of the offense alleged. Clearly the defense tactics do not exhibit either surprise or lack of familiarity with the nature of the offense charged. ACM 8609, Brossman (1954) 16 CMR 721.

The accused was convicted of bribery in that he wrongfully and unlawfully received from another airman who was scheduled for overseas shipment a certain sum of money with intent to have his action influenced with respect to the overseas transfer of such airman, an official matter in which the United States was interested. The evidence showed that the accused was a clerk in the squadron orderly room and that the selection of personnel for overseas assignment, as well as the deferment of personnel from such assignment after selection, was made at wing level and the accused had no authority or power to select for overseas assignment or defer therefrom. Also, the selection or deferment of personnel from overseas assignment was made according to prescribed criteria and the accused did not have any duty of recommending who should be selected or deferred from overseas assignment. However, it appeared that after personnel had been selected for overseas assignment an overseas shipment list was posted on the squadron bulletin board and the persons listed thereon were directed to report to the accused. The airman scheduled for overseas shipment testified as to paying the accused $50 to get off. Another witness testified that he saw the accused remove a card from the file and remark to a companion "this

guy has already paid; we'll have to keep him off". The witness saw the name of the airman who paid the $50 on the card.

Held that:

- for the accused to be able to take official action by virtue of his official position it is not necessary that his official position invest him with authority or power to accomplish by his own decision or action the end sought. If the corrupt intent is present official action by one occupying an official position which may be the subject of bribery may relate to the performance of merely routine clerical duties pertaining to the official matter, or of doing only what it is the duty of one occupying the official position to do. So from the fact that overseas shipment lists were posted on the squadron bulletin board with a notice that listed personnel report to the accused, it is established that the accused's duties did involve official action of some sort with respect to the general matter of overseas assignment of personnel. Further, it is clearly established the accused did occupy an official position by virtue of which he could and did take action. (See Whitney v. U. S., 99 F2d 327; U. S. v. Levine, 129 F2d 745; Cohen v. U. S., 144 F2d 984; Daniels v. U. S., 17 F2d 339; 11 CJS Bribery, § 2e.)

it is bribery for one occupying an official position to receive something of value with intent that official action within the scope of his authority will be influenced. However, one occupying an official position may also be bribed to take official action though the action is outside the scope of his duty or authority if by virtue of his official position he has some range of official action with respect to the subject matter to which the action sought to be influenced related. Accordingly, it was immaterial whether or not the accused's action with respect to the other airman's overseas assignment was within or outside the scope of his authority. (Citing U. S. v Birdsall, 233 US 233, 58 L ed 930, 34 S Ct 512; Whitney v. U. S., 99 F2d 327; Kemler v. U. S., 133 F2d 235; Daniels v. U. S., 17 F2d 359; 11 CJS Bribery, § 2e; 8 Am Jur, Bribery, § 14; 122 ALR 951; 158 ALR 328; Hurley v. U. S., 192 F2d 297.)

a bribe may be received with intent to have official action influenced in the nature of future protection and whether the action for which the bribe was received could be or was accomplished is immaterial. (Citing 158 ALR 327; U. S. v. Hood, 343 US 148, 96 L ed 840, 72 S Ct 568; Wolf v. U. S., 292 F 673; Whitney v. U. S., 99 F2d 327; U. S. v. Canella, 63 F Supp 377, affd 157 F2d 470.)

the evidence fully establishes that the accused received the sum of $50 with intent to have his official action influenced with respect to the overseas assignment of the airman as alleged. ACM 10050, Graalum (1955) 19 CMR —.

Both the giver and receiver of bribes as accomplices, see United States v. Bey, TRIAL § 57.17.

§ 50.5. Charges and specifications.

Model Form Specification Numbers 127 and 128 contain alternative phraseology for alleging the military offenses of bribery and graft. To allege the offense of bribery it is essential that the pleading con

tain the phraseology from the suggested forms "[with intent to have his (decision) (action) influenced with respect to]". To allege the offense of graft the pleading should contain the phraseology from the suggested forms "[as compensation for (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by him the said in relation to]" or other appropriate phraseology. ACM 10050, Graalum (1955) 19 CMR

§ 50.7. Evidence, generally.

The accused was a supply officer charged with soliciting and receiving bribes. Three suppliers testified as to making payments to the accused based on an agreed percentage of the value of orders filled. In the course of his defense, the accused presented evidence of good character. In rebuttal, the prosecution presented two witnesses who expressed doubts as to the accused's honesty. Over defense objection, each was permitted to recite specific incidents which led to his unfavorable conclusion. The first witness told of an incident in which the accused sent him a report showing the receipt of some equipment for signature. The items were misdescribed in the report and the price was excessive. The witness refused to sign the report and the accused later signed it for him. This witness also told of another report in which the amount of material reported received was far in excess of that actually furnished. The other witness told of the same two incidents. In addition, he testified that on one occasion he was called to the accused's office and ordered to sign a report which he had objected to signing. He stated he again refused to sign and he didn't know who finally signed. He also told of being sent a substantial number of reports at a time when auditors were examining procurement accounts. He was directed to sign and return them immediately, but having no knowledge of their accuracy he kept them intending to check their accuracy. He was sought out by the accused and told to sign and return them immediately.

Held that:

the testimony of the prosecution rebuttal witnesses was admissible under the rule permitting the introduction of evidence tending to show the existence of a plan, design or scheme on the part of an accused embracing the offenses charged. The concurrence of a series of unusual events involving misdescription and excessive billing was highly relevant in establishing that a scheme of the nature outlined by the suppliers in their testimony actually existed. Equally relevant was the testimony tending to show an unreasonable eagerness on the part of the accused to obtain necessary signatures of the rebuttal witnesses, and thereby accord his records the appearance of authenticity. Moreover, the evidence suggesting an actual falsification of signatures on official reports by the accused is susceptible of an inference that such conduct was intended to conceal the existence of an illegal plot. When viewed in this light, it is apparent that the several instances of misconduct bear a logical relevance to that charged, and are so closely connected with the latter as to be considered individual steps in a plan or system of illicit activity. (Citing MCM, 1951,

par 138g; 20 Am Jur, Evidence § 314, p 296; U. S. v. Tuffanelli, 131 F2d 890; U. S. v. Sebo, 101 F2d 889; Tomlinson v. U. S., 93 F2d 652, cert den 303 US 646, 82 L ed 1107, 58 S Ct 645.)

the challenged testimony was admissible notwithstanding the fact that the events in question antedated those alleged in the specifications. Since it was the government contention throughout that the crimes with which the accused was charged were the result of a conspiracy with the contractors entered into in advance of the dates appearing in the specifications, it was open to the prosecution to produce evidence tending to show the inception of a criminal plan prior to the time of the offenses alleged. (Citing U. S. v. Crowe, 188 F2d 209; cf. Alford v. Territory of Hawaii, 205 F2d 616.) Moreover, the defense sought to impeach the testimony by one of the suppliers by introducing a document tending to negate the existence of the conspiracy which was dated prior to the events covered by the specification and the accused in his own testimony extended the inquiry to include earlier events. Under such circumstances, the defense may not complain of the government's introduction of evidence of a contrary import concerning earlier events.

-the prosecution's rebuttal witness's testimony was admissible notwithstanding the fact that it tended to show the commission of offenses of a nature different from those alleged in the specification, that is, offenses, which did not necessarily constitute other acts of bribery. (Citing Lovely v. U. S., 169 F2d 386; Trautman, Logical and Legal Relevancy-A Conflict in Theory, 5 Vand L R 385.)

the fact that the accused had earlier denied the occurrence of the one of the incidents about which the rebuttal witnesses testified entitled the members of the court to weigh the incident as impeaching the accused's veracity. Normally, a witness may not be impeached by extrinsic evidence on a collateral point. However, the incident reported by the rebuttal witnesses was not collateral since it tended to show an overriding criminal plan of which the crimes alleged against the accused were a part. (See Wigmore, Evidence, 3d ed, secs 1003, 1004; Walder v. U. S., 201 F2d 715, affd 347 US 62, 98 L ed 503, 74 S Ct 354; Dowling Brothers Distilling Co. v. U. S., 153 F2d 353, cert den 328 US 848, 90 L ed 1622, 66 S Ct 1720, reh den 329 US 820, 91 L ed 698, 67 S Ct 29.) since the testimony of the rebuttal witnesses could be considered by the court-martial because of its relevancy in establishing a plan, design or scheme, it could also be taken into account by the court members in passing on the accused's claim of good character.

the only instruction to which the accused was entitled would have been one to the effect that the members of the court might not permissibly consider the evidence of specific misconduct as showing an evil disposition or criminal propensity on the accused's part, and from the fact of that disposition, infer that he had committed the offenses alleged. Such an instruction would have been appropriate, but the law officer was under no duty sua sponte to

charge the court regarding this aspect of evidence. The burden of requesting such an instruction rested on the defense counsel. (Cf. U. S. v. Johnson (No. 2486), 3 USCMA 709, 14 CMR 127; U. S. v. Schumacher (No. 680), 2 USCMA 134, 7 CMR 10.)

as an alternative ground of decision, assuming there was error in admitting the evidence in question, it was non-prejudicial since it appeared that, in answer to questions by the court, the accused had maintained that he acquired certain money by exchanging military scrip at certain banks and the court, on its own motion had the records of these banks examined with the result that no exchanges by the accused were shown. This deception of the court no doubt primarily undercut the accused's defense and any prejudice from the evidence in question is unlikely. (Citing U. S. v. Chiarella, 184 F2d 903; Allen v. U. S., 26 F2d 246; U. S. v. Wexler, 79 F2d 526, cert den 297 US 703, 80 L ed 991, 56 S Ct 384.) [Latimer, J., concurring in the result, questions that all of the evidence complained of met the test of admissibility to prove a plan or scheme on the part of the accused but concurs on the alternative ground of the decision that the error was nonprejudicial.] United States v. Haimson (No. 4549), 5 USCMA 208, 17 CMR 208, affirming CM 365145, Haimson, 14 CMR 268.

§ 51.1. Generally.

$51. Carrying Concealed Weapons

The accused was convicted of carrying a concealed weapon. The evidence established that he carried concealed on his person a pistol. However, it was also shown that the pistol was not loaded and that no ammunition was found cn or near the accused. Held: An unloaded pistol is a dangerous weapon within the proscription of the statute against carrying concealed weapons whether or not the bearer has ammunition therefor at hand. A weapon is regarded as a "dangerous" weapon under a statute prohibiting the carrying of a concealed weapon because of the comparative ease with which it may be transformed into a lethal instrument and the fact that when utilized in the manner for which it was solely designed it can readily be applied to the commission of a crime regardless of its unloaded condition. The absence of ammunition on or about the bearer does no more than slightly delay this transformation of the weapon. (Citing State v. Bauman, 311 Mo 443, 278 SW 974; State v. Williamson, 238 NC 652, 78 SE2d 763; Hathcock v. State, 99 Ark 65, 137 SW 551; State v. Wardlaw, 43 Ark 73; 74 ALR 1206, 1209, 1210; ACM 8065, Brungs, 14 CMR 851 and other cases and authorities.)

Held also: Failure to instruct the court to find that the weapon was in fact dangerous was not prejudicial to the accused. With respect to some weapons, the law officer may make a determination, as a matter of law, that they are dangerous weapons and within the proscription of the statute. In such event, he need not instruct the court to return a specific finding with respect to the dangerous character of the weapon. The weapon in the instant case falls within that category. (Citing ACM S-9781, Bryant, 17 CMR 896; cf. ACM