§ 66.13. Instructions to court. The accused was charged with abortion and conspiracy to commit abortion. The evidence showed that after a female companion with whom he had been intimate concluded she was pregnant, the accused made arrangements with a medical student for an abortion. The student inserted the purported abortifacient while the accused waited in another room. The accused paid the agreed fee. The student suggested that the accused find other clients for him and the accused subsequently made arrangements for him to perform similar operations on female friends of two other airmen. With respect to the offenses of conspiracy to commit abortion, the law officer instructed that the court must find beyond a reasonable doubt (1) that the accused and the named medical student entered into an agreement; (2) that the object of the agreement so entered into was to commit an offense under the Uniform Code of Military Justice; and (3) that one or more of the persons named or described performed an act to effect the object of the conspiracy as alleged. He also instructed extensively on the law of aiders and abettors. With respect to the consummated abortion charges, he instructed that the court must find beyond a reasonable doubt that the accused did, in conjunction with the named medical student, unlawfully and wrongfully procure the miscarriage of the female persons named in the specifications; that such action on the part of the accused was unlawful and wrongful; and that the miscarriage was caused by the means and in the manner alleged in the specifications. In response to a question from the president he specifically informed the court that the law of aiders and abettors could not be applied. Held that: so much of the instructions as suggested that the accused could be found guilty as an aider and abettor with respect to the conspiracy offenses were erroneous since there was nothing in the evidence indicating that he was an aider and abettor with respect to these offenses. However, the error was nonprejudicial since the court was also fully advised that it could find him guilty if it found he had performed sufficient deeds to constitute him a principal and the evidence overwhelmingly pointed to his being a principal. However, the instructions concerning the conspiracy offenses do not meet the minimal standards required by UCMJ, Art 51(c), since they are too general. Furthermore, the deficiencies cannot be rectified by consideration of the instructions in totality. The instructions did not even identify the crime to which the alleged conspiratorial agreements pertained by name and thus the other instructions cannot be looked to for definition of an offense which has not even been named. (Cf. U. S. v. Cooper et al (No. 708), 2 USCMA 333, 8 CMR 133, 139.) - the instructions relating to the consummated abortion offenses were erroneous because of the failure to instruct on the theory of aiding and abetting. The evidence unequivocally showed that the accused was not a common-law principal as he did not personally have anything to do with the operations and in fact was not even physically present at any of them. Accordingly, the only method by which the accused could be convicted was by application of the theory that he was an aider and abettor. (Citing MCM, 1951, par 156; see ACM 8005, Anderson, 15 CMR 919, and cases cited.) It must be considered that the findings made by the court herein were predicated upon the only theory made available to it by the instructions, that is, that the accused's guilt was based on a finding that he was a principal. That error would have been fatally prejudicial to findings upon the original offenses. As the accused's complicity in such lesser included offenses as may be carved from the original offenses stems from the application of the same aider and abettor theory, the instructional misguidance must be regarded as carrying over to any such lesser offenses. The error accordingly is fatal to findings of guilty concerning the offenses charged and all lesser included offenses. proper instructions in this case for consummated abortion should read: "To predicate guilt you must find beyond a reasonable doubt: (1) That accused, in conjunction with the person alleged did at the time and place alleged, wrongfully and unlawfully cause the miscarriage of the named female; (2) That the named female was then and there pregnant with child and was believed to be pregnant by the accused; (3) That the miscarriage was caused by use of a certain instrument and substance, as alleged, in and on the said named female; (4) That the use of the said instrument and substance, as alleged, was not essential to preserve the life or health of the named female." The instructions should also indicate that in order for the court to convict it must find beyond reasonable doubt that the accused was an aider and abettor. With respect to proper instructions concerning the elements of attempt to cause abortion, the guidance provided in the Court-Martial Instructions Drafting Guide, DAF, 15 June 1954, Instruction 2a, p 9 is ample if additional instructions concerning the theory of aiders and abettors are included. ACM 8829, Woodard (1954) 17 CMR 813. § 73. Entering Female Quarters or Other Premises § 73.1. Generally. A specification alleging that the accused did on board a specified naval station, on or about a certain date, wrongfully solicit a named Wave to allow without proper authority an unknown female friend of his to stay overnight in the Waves' barracks, by threatening to place her, the Wave, on report, alleges an offense under the Uniform Code of Military Justice. The wrongfulness of the solicitation is given as the threat to put the Wave on report. Such conduct is obviously wrongful and any request, no matter how reasonable, which is preambled or accompanied by a threat of that nature, becomes offensive and punishable as conduct of the type proscribed by UCMJ, Art 134. NCM 354, Stuart (1954) 17 CMR 486. A specification alleging that the accused did, on board a specified naval station, on or about a certain time and date, wrongfully and without proper authority, enter areas of the Waves' barracks marked "No men allowed" alleges an offense under the Uniform Code of Military Justice. NCM 354, Stuart (1954) 17 CMR 486. CONSPIRACY § 5. Parties to Offense. § 11. Charges and Specifications. § 15. Evidence, Weight and Sufficiency. § 19. Instructions to Court. § 5.1. Generally. § 5. Parties to Offense Responsibility of each conspirator for acts of others, see ACM 10050, Graalum, infra § 15. § 5.21. Insane or mentally incompetent persons. The defense offered the testimony of a medical officer that the alleged co-conspirator possessed a schizoid personality. On the other hand, the prosecution offered testimony of a psychiatrist that the co-conspirator possessed sufficient mental capacity to distinguish right from wrong, and a board of officers found that he was free from mental defect at the time of the alleged acts. The law officer instructed the court that if at the time of the alleged offense, the co-conspirator was not mentally responsible, then the accused could not be found guilty of conspiring with him. He went on to define what constitutes a lack of mental responsibility. Held: Assuming that the mental incapacity of the alleged co-conspirator at the time of entering into the conspiracy would as to the accused constitute an absolute defense to the crime of conspiracy, the issue of insanity as to such co-conspirator, which was raised by the evidence, was properly presented to the court for its resolution under the proper instructions, and the court properly resolved the issue against the accused. (Citing Wharton's Criminal Law, vol 2, 12th ed, sec 1657; Farnsworth v. Zerbst (CCA 5th, 1938) 98 F2d 541, 544; Tucker v. Hyatt, 151 Ind 332, 51 NE 469; ACM 4200, Lindahl, 2 CMR 825; ACM 3967, Ellis (BR) 4 CMR (AF) 849.) ACM 8212, Cascio (1954) 16 CMR 799. § 5.35. Government agents or informers. See ACM 8212, Cascio, WAR & DEF § 89.11. § 11.1. Generally. § 11. Charges and Specifications Construction of specifications alleging conspiracy to commit abortion, see ACM 8829, Woodard, CONDUCT, etc § 66.5. § 11.5. Overt act. The accused was convicted of conspiracy to obtain a fraudulent separation from the Naval service by making a false official statement. The specification alleged that he did, on or about 9 June 1954, conspire with a certain named person, to commit an offense under the Uniform Code of Military Justice, to wit: to obtain a fraudulent separation from the Naval service, and in order to effect the object of the conspiracy, the accused and the named person on or about 14 June 1954 made an official statement admitting participation in a homosexual act on or about 9 June 1954, in the station brig. The evidence showed that while the accused was confined in the brig he and another prisoner entered into a plan whereby they would go back into the shower area and after a period of time two companions would inform the brig turnkey that they were engaged in a homosexual act. The plan was carried out. After proper warning of his rights under UCMJ, Art 31, the accused made a statement that he had committed an act of sodomy while in the shower area. Later in the same day he made another statement to the same effect. However, after he learned that he might be prosecuted on a sodomy charge he repudiated his statements and said they were false. He took the stand at his trial and testified that no homosexual act had in fact been committed and that he had made the false statements in order to obtain a separation from the service. Held that: the specification was not defective because the overt act was not given in particularity. The elements of the offense of conspiracy were set forth in the specification and the overt act sufficiently definite to enable the accused to prepare his defense. the evidence is sufficient to support the findings of guilty of the conspiracy alleged. (Citing MCM, 1951, par 160; 11 Am Jur, Conspiracy §§ 4 and 6.) - to effect an abandonment of a conspiracy where an overt act is required the accused must abandon his design before the overt act is done. In the instant case the accused repudiated his statement after the overt act to further the design of the conspiracy. Accordingly his attempt to abandon was too late as a matter of law and fact. (Citing MCM, 1951, par 160; 11 Am Jur, Conspiracy § 6; U. S. v. Britton, 108 US 199, 27 L ed 698, 2 S Ct 531.) the evidence did not reasonably raise the issue of lesser included offenses under the conspiracy offense and therefore the law officer was not required to instruct on lesser included offenses. (Citing U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45; U. S. v. Clark (No. 190), 1 USCMA 201, 2 CMR 107.) NCM 385, Bolling (1955) 18 CMR 434. § 15. Evidence, Weight and Sufficiency § 15.1. Generally. The accused was convicted of murder and conspiracy to commit murder. There was evidence that the victim was apprehended by a sentry trespassing on a bomb dump. He was taken to the Air Police Operations Office where the accused, the Air Police Officer, ordered the sentry to take the victim back to the bomb dump and shoot him which the sentry did. Several witnesses testified as to hearing the accused discuss with the sergeant of the guard and the sentry how and where the victim was to be disposed of. The sentry testified that he told the accused he could not shoot the victim and that he did so only after the accused told him it was an order. He also testified that he asked the accused if he would take full responsibility and that he said he would. The defense contended that the above testimony showed that the sentry acted on orders and negated the existence of a conspiracy. Held: The evidence indicates that the airman who actually shot the victim was in agreement with the plan to shoot him although he was adverse to playing the role of the principal. Upon being assured that the accused would assume responsibility he agreed to shoot the victim and thereafter proceeded to his part in the offense. By such agreement and conduct he entered into conspiracy with the accused to commit an unlawful act. The evidence clearly established the existence of an agreement between the accused and the sergeant of the guard to accomplish the death of the victim. The airman who shot him was aware of this conspiracy and although he may not have participated in the original formation of the plan to kill the victim, his subsequent cooperation in effecting the object of the conspiracy with knowledge of the unlawful agreement between the conspirators, constitutes him a co-conspirator. (Citing U. S. v. Sylvanus, 192 F2d 96, cert den 242 US 943, 96 L ed 701, 72 S Ct 555; Lefco v. U. S., 74 F2d 66; Marino v. U. S., 91 F2d 691, cert den 302 US 674, 82 L ed 593, 58 S Ct 410; Coates v. U. S., 59 F2d 173; 11 Am Jur, Conspiracy, sec 7; 15 CJS, Conspiracy, sec 75; ACM 7321, Kinder, 14 CMR 742.) In view of all the foregoing, all of the elements of conspiracy to commit murder were adequately established and the accused's guilt of criminal conspiracy is clear. ACM 7761, Schreiber (1954) 16 CMR 639. See also ACM 8212, Cascio, WAR & DEF § 89.11. The accused was convicted of conspiracy to commit bribery. A witness testified that the accused and his alleged co-conspirator talked to him about keeping him off overseas shipment. This conversation took place on 15 January 1954 and on approximately 17 January 1954 the alleged co-conspirator asked him for $50. According to the witness the co-conspirator purported to be acting in behalf of both the accused and himself. According to a pretrial statement by the accused, he took certain action on the day following the date the conspiracy was shown to have come into existence to effect the object of the conspiracy but was unsuccessful and he later informed his co-conspirators that he was abandoning the conspiracy. Held: The accused occupied an official position by virtue of which he had some range of official action with respect to overseas assignment of personnel. This fact, in conjunction with the conduct and mutual conversation of the accused and his alleged co-conspirator with the witness, clearly indicate an intent on the part of the accused and his alleged co-conspirator to have the accused's official action with respect to overseas shipment influenced by the receipt of a sum of money. Thus, the evidence established an agreement between the accused and his alleged co-conspirator to commit the offense of bribery alleged. |