Examination by the Court

Senior member (or member) to witness: "Question?" Witness: "Answer."

Senior member to recorder: "No further questions."

Sec. 587 (25) Senior member to witness: "Before you testified you took an oath to state everything within your knowledge in regard to the charges. You are now privileged to make any further statement necessary to fulfill your oath. If you are not sure what the charges are they will be explained to you. Have you any further facts to state?"

Witness: "No."

(Above statement not made if witness has testified on voir dire oath. If witness makes a statement further examination is allowed in court's discretion.)

Sec. 587 (26), 297 (b) Senior member to witness: "You are instructed not to reveal, either directly or indirectly to anyone any part of the testimony you have given and not talk to anyone about the details of your testimony except the recorder and counsel for the accused. You are excused."

Sec. 594 (56) (Any witness who has to stay in the courtroom after he testifies is not given the warning. For example-a member, recorder, accused or his counsel.) (Procedure is the same for each subsequent witness called by the prosecution.)

Sec. 668 Recorder: "The prosecution rests."

(To be concluded in an early issue.)

MORE ABOUT WILLS

By Ledr. W. H. Taylor, Jr., USN

(The following is the second and concluding portion of the article begun in the June 1949 issue of the JAG Journal.)

Selecting the witnesses.-In selecting persons to act as witnesses, the primary thing to be borne in mind is the requirement stated in the original Statute of Frauds that they be "credible" witnesses. Look into their background as carefully as possible, and evaluate them from the viewpoint of whether or not they will be able to perform the function of proving the will on the day it comes up for probate. Needless to say, it would be foolhardy to select as a witness a person ever convicted of a crime involving falsehood or moral turpitude. A second consideration to be observed is that one or more witnesses must be available when the will is offered for probate. Select witnesses, if possible, who are younger than the testator and in a good state of health. This is good insurance that at least one witness will be living at the required

time. Thirdly, it is not unwise to select as witnesses persons who live near the place where the testator is domiciled, or in or near the location of his real estate. This will save time and money when it comes to proving the will.

Further thought should be given to the ease of locating a witness when his services are required. In this respect, it is recommended that officers be used as witnesses whenever possible. Although all Navy personnel records are kept with equal care, there is less likelihood of duplication of names among officers. It is also more likely that the officer witness will remain in the service longer than the enlisted witness, and will be thus easier to locate.

If the testator is of doubtful lucidity in a terminal illness, or if the issue of his mental capacity seems likely to be raised, it is good practice to have one or more physicians as witnesses. He or they should examine the testator at the time the will is executed and pronounce an opinion as to his rationality or mental capacity. The attestation clause should, when a physician is a witness, contain a statement of the opinion of the medical witness as to the sanity of the testator.

Persons

Under no circumstances should a beneficiary under the will be selected as a witness. who are related to a beneficiary by blood or marriage should likewise be avoided. To employ such persons might cause that particular bequest to be set aside, and might in some states be the cause for setting aside the whole will.

The actual execution.-The steps to follow when the time for execution occurs should be adhered to faithfully, even slavishly:

(a) The testator, the witnesses, and yourself should assemble in a quiet and private place. Explain to all present what is about to happen. Impress everybody present with the great importance of following your directions meticulously. Ask the persons there whether or not they have any questions. If there is any doubt in their minds as to what they are doing, clear it up before proceeding any further.

(b) The testator should next state to the witnesses that the instrument before them is his last will and testament, and request each witness to act as such. This is psychologically an important part of the process. It is not necessary for the testator to read the will or reveal its contents.

(c) Ask the testator to date the will and to sign

his name as he ordinarily signs it. Have him sign at the end of the will, after the last dispositive clause of the instrument. When he has signed, the testator should affix a seal of some sort alongside his signature, or merely write the word "seal" there. While the testator is signing and affixing the seal, the witnesses should be made to watch the process. This is apt to remind them, when proving the will, of their presence at the time of the testator's signature. It is essential in some States that the will be signed at the end. There must be no clauses which dispose of any property, below the testator's signature. To allow this results, in some States, in the whole will being held invalid.

A difficult problem may be presented where the testator is too old or ill to sign his name unassisted in the usual manner. In such a case as this, it is generally permissible for the attorney or another to guide the testator's pen. He may even sign for the testator, having the testator hold the end of the pen, or rest his hand on that of the person signing. In some jurisdictions it is allowable for someone other than the testator to sign for him, on the verbal request of the testator. Should this be necessary, the fact should be noted in the attestation clause. Troubles of this sort are infrequent, but it is well for the legal officer to be prepared.

(d) After the testator has signed and affixed his seal, have him again request that the witnesses subscribe in the place provided. This should be done beneath the attestation clause. When each witness signs, he should also write his legal address beside his name. The testator should be asked to watch each witness sign, and each witness should watch each other witness sign.

If the will is voluminous, or if there is apparent danger of loss or substitution of any of the pages, it is good practice to have the testator sign his name or initials in the margin of each page, the witnesses doing likewise. Many testators may innocently try to change the will by removing a page or more from a properly executed will, substituting others. On the other hand, the will may be destined to pass through many and strange hands on the way to its depository, with the consequent risk of loss of some of the pages by accident or intent. Where the suggested process has been followed, the attestation clause should refer to it, giving a page count, and reciting the fact that the testator and the witnesses signed or initialed each page.

(e) When the witnesses have finished subscribing, read the attestation clause over to them. This will tend to leave a doubly lasting impression on their minds as to what they have just completed doing. This impression may some day be the means of refreshing the memory of the witness at a time when it is most needed.

(f) If there is any doubt as to the rationality of the testator at the time of execution, many provident attorneys will cause a conversation to take place between the testator and the witnesses at that time. The subject matter of the conversation should be noted and filed away with a copy of the will. In case of a contest on the ground of lack of testamentary capacity, the evidence of such talk is often invaluable to resolve the issue of rationality and mental capacity at the time of the execution.

(g) Fasten the pages of the will together with staples or other strong devices. It is essential that the chances of loss or substitution of parts of the will be minimized, and this is a good precaution.

Destruction of prior wills.-If the testator has with him any prior testamentary papers, he should ordinarily be advised to destroy them completely. Only in case a will contest seems likely should they be retained. Should this be done, the testator should mark each and every page of the prior will by his own hand, with the word "revoked," the date, and his signature written across the page. It is sometimes relevant to be able to show a disgruntled relative, disappointed at being omitted from the effective will, that he or she was omitted from others as well. A complete appraisal of the personal situation of the testator will be the best guide.

A word about Louisiana.-Louisiana wills are in a class by themselves, the formal requirements for them being set by statutes which prescribe with great particularity the process of execution to be followed. If the testator is domiciled in Louisiana or owns realty there, the Louisiana statutes should be strictly adhered to.

Conclusion. Although the above suggested procedure may seem unduly formal and ritualistic, it is well to remember, again, that a will is no better than the manner of its execution. Improperly executed, it is merely a piece of paper. An ounce of prevention still being worth a pound of cure, it is earnestly recommended that the few extra minutes required to follow the above be spared. They will be minutes well spent.

WE are about to pass through the stormy straits

of merger. As we weigh anchor and move

out into the fog ahead, we will place our hope in radar, known for the purpose of this discussion as a workable definition of legal merger. mission is to define legal and equitable merger of offenses and to distinguish one from the other.

Our

The term "legal merger" is commonly used to apply to any situation where the reviewing authority, confronted with a conviction of two or more offenses arising out of the same act or the same transaction, sets aside the findings on one offense as a matter of legal necessity because:

(1) Naval Courts and Boards provides that it is a lesser included offense of another of which the accused is also convicted, the same evidence proving both offenses; or (2) it appears that the elements of each offense are the same and are proved by the same evidence; or

(3) it appears that all the elements of one offense are included in, but less than, the elements of the greater offense, the same evidence proving the elements of the lesser offense and the corresponding elements of the greater offense.

Naval Courts and Boards provides the authority for legal merger under the first alternative above. Supreme Court opinions, discussed below, support legal merger under the second and third alternatives. While "merger" of offenses may be considered a misnomer to describe any situation where the findings on one offense are set aside, leaving the findings on the same or greater offense to stand, the setting aside is merely an act to clear the record of guilty findings on the offense merged, and it should not be considered as negativing the fact that a merger has been effected.

As an example of legal merger under the first alternative, Naval Courts and Boards, section 120, lists "Assault" as a lesser included offense of "Unlawfully Striking Another." Section 48 of the same reference notes one of the essential elements of Assault as the apprehension of hurt by the victim. We think no authority need be cited for

the proposition that apprehension of hurt forms no part of the essential elements of the striking. Conversely, a battery or striking forms no part of the essential elements of an assault. Thus we may conclude logically that findings on Assault will not merge into findings on the striking offense under the third alternative above, since each offense contains a different element. Nevertheless, convictions on the two offenses will legally merge, where both are directed against the same victim and arise out of the same incident, simply because Naval Courts and Boards designates "Assault" as a lesser included offense of "Unlawfully Striking Another."

We consider next the second alternative calling for a legal merger. C. M. O. 10, 1946, 341, reports the case of an accused convicted of "Embezzling Money of the United States Intended for the Naval Service Thereof" and "Neglect of Duty." The specification under the embezzlement charge alleged that the accused, having received into his possession and under his control public money of about $14,300, did fail to keep safely said money and did thereby embezzle said money. The specification under the neglect of duty charge alleged that the accused, having received into his possession and under his control public money of about $14,300, did neglect and fail to keep safely said public money, as it was his duty to do, in that he did neglect and fail to lock and secure the inner combination-lock door and the two key-lock drawers of the safe in which said money was kept. The C. M. O. does not recite the evidence in the case with any particularity but does say that the same evidence which proved the neglect of duty offense also deprived the accused of a defense to the embezzlement charge. We believe this is as much as to say that the same evidence which proved the failure, constituting the technical embezzlement (18 U. S. C. 174, now 18 U. S. C. 650). also proved the neglect, constituting the neglect of duty offense. As a general rule, if the same evidence proves two similar elements, each of which is pleaded as parts of separate offenses, we may safely conclude that the two elements are identical.

Looking back at the two specifications, we find no essential element contained in one which is not also contained in the other. The res involved ($14,300) was the same and was alleged and proved in both instances as money of the United States intended for the naval service. True, the specification under "Neglect of Duty" alleged an affirmative duty of the accused which is not expressly alleged under the embezzlement charge. The specific duty, however, in connection with. the embezzlement charge, i. e., the safekeeping of public money, was imposed by Federal statute of which the court took judicial notice. The court cannot likewise take judicial notice of the specific duties of each person in the Navy; consequently, it was necessary to specify under the neglect of duty charge that the accused did, in fact, have the particular duty imposed upon him. This was done, after the words alleging the accused's failure to perform a specific act, with the words "as it was his duty to do." Also alleged under the neglect of duty charge was a recital of the manner in which the neglect occurred. This was done in conformance with good pleading (N. C. & B., sec. 105) and is properly considered a recital of the facts constituting an element of the offense rather than the element itself, i. e, the neglect in keeping public money safely. The words in the specification under the embezzlement charge "and did thereby embezzle said money" are nothing more than the pleading of a legal conclusion and in no way alleged an essential element of the technical embezzlement. To sustain a conviction for this statutory offense, an actual conversion of funds. need not be alleged or proved.

It appears then that this court-martial order fits our second alternative calling for a legal merger. Here we run into trouble for the C. M. O. concludes that the accused could properly stand convicted of both offenses. While the finding on the neglect of duty specification was set aside out of considerations of justice (equitable merger), thus reaching the proper result, we believe that the action taken should have rested upon grounds of legal merger rather than equitable.

As an illustration of legal merger under the third alternative above, we will consider the case of an accused convicted of "Robbery" and "Unlawfully Striking Another," each involving the same victim. Analyzing the elements of these offenses, as they would normally appear on the face of the pleadings, we note a similarity as between

the force and violence which may be alleged under the robbery charge and the battery alleged under the striking charge. If it develops that the same evidence proves both elements, we have a situation where all the elements of the lesser offense are included in, but less than, the elements of the greater offense. In other words, the accused in law has committed but one offense and the findings on the striking offense merge into the findings on the robbery.

The term "equitable merger" has been commonly applied to any situation where the reviewing authority, confronted with a conviction of two or more offenses, as to all of which the accused may legally stand convicted, sets aside the findings on one or more of the offenses because the plural offenses arose out of the same act or the same course of action extending over a comparatively short period of time; no aggravating circumstances existed precluding equitable action; and evidence as to one offense tended in some degree to support the other. In executing an equitable merger of two offenses, the reviewing authority is saying in effect that, for purposes of the record and punishment to be administered, he will consider the accused to have committed only one offense although in fact two offenses were committed. Equitable merger, unlike legal merger, is not mandatory but may be exercised as a matter of substantial justice. It provides the reviewing authority with a method of clearing the record of legally warranted guilty findings on what he believes is an undue multiplicity of charges. This doctrine is peculiar to naval law and its application has generally been limited to offenses of a military nature. Thus equitable merger has been applied to such offenses as "Desertion" and "Breaking Arrest" (C. M. O. 5, 1948, 157); "Absence from Station and Duty Without Leave" and "Negligence in Obeying Orders" (C. M. O. 10, 1947, 299); and "Stealing Property of the United States Intended for the Naval Service Thereof" and "Wrongfully and Knowingly Disposing of Property of the United States Intended for the Naval Service Thereof" (C. M. O. 8, 1948, 249).

In the cases cited, the offenses of "Desertion" and "Breaking Arrest" began at the same time. The same is true with respect to "Absence from Station and Duty Without Leave" and "Negligence in Obeying Orders." The stealing and disposing offenses occurred as parts of a continuous course of action closely related in point of time.

With respect to each set of offenses, each offense contained an element not contained in the other, evidence as to one tended in some degree to support the other, no aggravating circumstances existed precluding equitable action, and the offenses were military in character. These are the usual circumstances under which equitable merger has been employed in naval law.

Let us now examine certain court-martial orders where we believe circumstances existed warranting equitable merger, although the language in the opinions indicates the application of legal merger. In C. M. O. 3, 1945, 97, an accused was convicted of I, "Violation of a Lawful Regulation Issued by the Secretary of the Navy" (engaging in trade by selling 6 bottles of wine), and II, "Violation of a Lawful General Order Issued by the Secretary of the Navy" (unauthorized possession of 6 bottles of wine on a naval base). The opinion reads, in part:

"The evidence adduced in support of the specification under charge II showed that the unauthorized possession of intoxicating liquor on a naval base, which formed the basis of the offense, occurred about the time of the sale of this same liquor, which was alleged as a separate offense in the second specification of charge I. Under these circumstances, the acts alleged in the specification under charge II were necessary to the consummation of and, in a sense, were a part of the offense alleged in the second specification under charge I (C. M. O. 1, 1941, 40). In order that there may never be any question that the accused was punished twice for the same offense, the findings on charge II and the specification thereunder and the action of the convening authority thereon were set aside." [Italics supplied.]

The language used clearly indicates that the findings on charge II and the specification thereunder were set aside on the ground that only one offense may have been involved. Such reasoning would appear to be inconsistent with the position taken in Albrecht v. United States, 273 U. S. 1, an extract from which follows:

"There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts: Of the nine counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were con

victed for having sold is the same that they were convicted for having possessed. But possessing and selling are separate and distinct offenses. One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction."

In C. M. O. 5, 1945, 188, an accused was convicted of I, "Carelessly Endangering Lives of Others," and II, "Conduct to the Prejudice of Good Order and Discipline" (violation of a local order). The evidence showed that the accused drove a jeep containing passengers at 60 miles per hour on a naval station, where a local order imposed a speed limit of 25 miles per hour, and by reason of such excessive speed struck another vehicle and overturned. The opinion states as follows:

"The pleadings on their face appeared to indicate that the act of speeding alleged under the second specification of charge II as a violation of a local order was necessary to the consummation of, and in that sense a part of the offense as alleged under charge I. Since in this case speeding was necessarily an element of the proof of endangering lives of others, in order that there might be no question that the accused was punished for two offenses on the elements of only one, the findings on the second specification of charge II were set aside." [Italics supplied.]

The essential elements of the offense of "Carelessly Endangering Lives of Others" consist of endangering the lives of others by conduct amounting to gross and culpable negligence. The essential elements of the offense of "Conduct to the Prejudice of Good Order and Discipline" (alleging violation of a local order) consist of the violation of a duly promulgated local order. To prove the latter offense it is necessary to show not only the act of violation but the existence of the order and its promulgation to the accused. It is apparent, therefore, that each offense contains elements not contained in the other. In Blockburger v. United States, 284 U. S. 299, the