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CMO DIGESTS.

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Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court-martial orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948.

RADM G. L. RUSSELL, USN
Judge Advocate General of the Navy

CAPT E. E. WOODS, USN

Assistant Judge Advocate General of the Navy

CAPT B. A. GOEWEY, USMC Editor

MAJ J. I. LOY, USMC

Associate Editor

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The purpose of this column is to help you keep abreast of current trends in naval law. To accomplish this purpose, digests have been prepared from some of the most recent court-martial orders and opinions of the Judge Advocate General that have been designated for publication in future Court-Martial Orders. These digests do not necessarily include every point of law covered by the original order or opinion.

Matter appearing in this column is for informational purposes only, and is not to be cited as CMO authority in judicial proceedings.

ADMISSIBILITY OF LEDGER BOOKS

The

• A general court-martial was trying an atcused on several specifications that alleged the cashing of checks for which there were insuffcient funds in the accused's bank account. prosecution was permitted to introduce in evidence over the objection of the accused the ledger books of a commissioned officers' mess and a post exchange in order to show that, o occasions prior to the dates of the checks ir volved in the case, the accused had given other checks for which there were insufficient funds!

Entries in these books tended to show tha after the earlier checks had been dishonored the commissioned officers' mess and post ex change had set up accounts receivable against the accused, and that these accounts had bee subsequently paid by the accused.

The Judge Advocate General held that the ledger books should have been excluded from evidence by the court under the hearsay rule "It is not within the regular course of business of either the Commissioned Officers' Mess of the Post Exchange to record facts concerning the status of private bank accounts (cf. Palmer Hoffman (1943) 318 U. S. 109). These entries therefore, were inadmissible to show the oc dition of the bank account of the accused & the times in question. . . ."

DISMISSAL OF A CRIMINAL ACTION

An enlisted man on authorized liberty w arrested and confined by civil authorities. Se eral days after his liberty had expired, he wa arraigned before the appropriate local civil co (Continued on page 18)

HOW TO PLEAD A STATUTORY OFFENSE

By CDR H. S. COFIELD, USN

When you have an offender to prosecute, the first thing you must do is charge him with the offense he is supposed to have committed.

Sounds simple, and usually is assuming you don't have to dig into the United States Code or the statute books of a State to come up with a specification that will fit the facts you have on hand.

When this is necessary, there are certain pitfalls you must avoid if you want the specification to stick. This article has been prepared to show you what some of these pitfalls are and how to avoid them.

IN PREPARING SPECIFICATIONS the normal starting place is Naval Courts and Board, chapter II. If your facts fit one of the offenses set forth in the sample specifications that appear in that chapter, and if you draft your specification in strict accordance with the sample, there is very little likelihood that you will fail to allege an offense. However, the situation frequently arises where the facts of a case do not constitute an offense described in one of these sample specifications, but are a violation of some Federal statute not covered by Naval Courts and Boards, or of some State statute or municipal ordinance.

"Pleading," as used in the terminology of criminal law, does not refer to oratory used by counsel, but to the written formal indictment by which an accused is charged with an offense. In naval law, the "pleadings" are called "charges" and "specifications." In a general court-martial an accused is apprised of the offense alleged by both charges and specifications while in a summary court-martial or a deck court only specifications are used, the charge being omitted. (The question of choosing appropriate charges for general court-martial was dealt with in an article appearing in the September 1950 issue of the JAG Journal.) The only difference between a specification prepared for trial by a deck court or summary courtmartial and one for a general court-martial is

that in the former both the place of attachment and the ship or station where the accused is serving must be alleged, while in the specification for trial before a general court-martial, only the ship or station where the accused is serving need be alleged. This is because of the requirement that the specification referred to a summary court-martial or deck court for trial must show on its fact jurisdiction over the accused. This means that the specification itself must allege that the accused is attached to the command of the officer who convened the court. General rules of statutory pleading

Once you have ascertained that your pleadings must be based directly on a statute or ordinance, you must first, if your case is to be a general court-martial, determine what charge is to be used. This choice will usually be limited to two of the three general charges: conduct to the prejudice of good order and discipline would be the proper charge if the offense is not one of a scandalous nature; scandalous conduct tending to the destruction of good morals would be the proper charge if the offense could be characterized as scandalous.

Section 27, Naval Courts and Boards, provides that it is not necessary to allege that the offense was committed in breach of a statute. This means that the specification is not defective if such an allegation is omitted. However, it is proper to include such allegation, and it is desirable to refer to the appropriate section of the applicable statute in a manner that will inform the reviewing authorities that the offense is pleaded as a violation of such statute. While in a contested case, the record will probably reflect the statute upon which the specification is predicated-either in the argument of counsel or elsewhere-such is not apt to be true if there is a guilty plea; the record may not contain this information unless it is included in the specification itself. One acceptable method of referring to the statute is to allege in the specification that the accused "did . . . in violation of Section of the Revised Laws of." do certain acts.

If the specification pleads the violation of a municipal ordinance, or of a statute of a State other than the one in which the court is sitting, Section 27, Naval Courts and Boards, requires that the ordinance or statute must be set forth verbatim in the specification.

Generally speaking, a specification should allege an offense in the language of the statute. In addition to the statutory language, it will usually be necessary to make other averments of fact. Sample specifications that appear later in this article will illustrate what is meant by "pleading in the language of the statute."

How specific must the allegations of fact in a specification be? The answer to this question is found in CMO 5, 1949, 117, which holds that acts or omissions alleged must be set forth with particularity sufficient to (1) apprise the accused of the offense intended to be charged against him, and (2) enable him to interpose the plea of former jeopardy in the event of a subsequent trial for the same offense. This is the standard

used by the Federal courts. Because of the importance of this matter, it will be treated in greater detail later in the article.

The statutes to be discussed by this article were chosen because they are typical of some of the criminal statutes that are commonly encountered in drafting specifications for trial by naval courts-martial. There has been no attempt to cover the entire field of criminal statutes, or to classify all such statutes. The three types we will discuss will (for want of better description) be called (1) the multiple-offense statute, (2) the affirmative-duty statute, and (3) the legal-conclusion statute.

Multiple-offense statute

The first step in drafting a specification based on a statue or ordinance is to analyze the statute or ordinance involved. What, exactly, does the statute prohibit? What are the elements of the offense, or offenses, that it prescribes? Allegations as to each of these elements must be included in the specification. Usually this can be done by simply framing the allegations of the specification in the words of the statute. This is not always possible, however. One reason is because some enactments-particularly some of the Federal criminal statutes-prohibit a great variety of acts within a single statute. Two examples of such

statutes are quoted in section 113, Naval Courts and Boards:

"Whoever shall forge, counterfeit, or falsely alter any certificate of discharge from the military or naval service of the United States, or shall in any manner aid or assist in forging, counterfeiting, or falsely altering any such certificate, or shall use, unlawfully have in his possession, exhibit, or cause to be used or exhibited, any such forged, counterfeited, or falsely altered certificate, knowing the same to be forged, counterfeited, or falsely altered, shall be fined not more than $1,000 or imprisoned not more than one year, or both, in the discretion of the court." "Whoever shall falsely make, forge, counterfeit, alter, or tamper with any naval, military, or official pass or permit, issued by or under the authority of the United States, or with wrongful or fraudulent intent shall use or have in his possession any such pass or permit, or shall personate or falsely represent himself to be or not to be a person to whom such pass or permit has been duly issued, or shall wilfully allow any other person to have or use any such pass or permit, issued for his use alone, shall be fined not more than $2,000 or imprisoned not more than five years, or both."

(All references in Naval Courts and Boards to Federal criminal statutes contained in Title 18, U. S. Code are now obsolete. Before using any sample specification in Naval Courts and Boards that refers to any section of Title 18, U. S. Code, a copy of the new Title 18, effective 1 September 1948, should be consulted. The above-quoted statutes were used for purposes of illustration. Comparing them with sections 498 and 499 of Title 18, U. S. Code, which have replaced them, will disclose changes in phraseology.)

Sample specifications based on the first of these statutes are found under charges I and II in section 113, Naval Courts and Boards. sample specification alleging an offense under the second of the quoted statutes is found under charge III of section 113, Naval Courts and Boards.

Upon a close reading of the second statute, it will be noted that it actually spells out four criminal laws. This becomes apparent when figures (in parentheses) are inserted at the proper locations, as is done in Naval Justice (NAVPERS 16199-A) at page 107:

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"Whoever shall (1) falsely make, forge, counterfeit, alter, or tamper with any naval, military, or official pass or permit, issued by or under the authority of the United States, or (2) with wrongful or fraudulent intent shall use or have in his possession any such pass or permit, or (3) shall personate or falsely represent himself to be or not to be a person to whom such pass or permit has been duly issued, or (4) shall wilfully allow any other person to have or use any such pass or permit, issued for his use alone, shall be fined not more than $2,000 or imprisoned not more than five years, or both."

One offense prohibited by this statute that occurs frequently is the second of the four: namely, possession of a falsely made, forged, or altered naval pass with wrongful or fraudulent intent. A sample specification based on this portion of the statute is found in Naval Justice at page 107:

"In that Roger Carl Haskell, seaman apprentice, U. S. Naval Reserve, attached to the U. S. Naval Section Base, Bar Harbor, Maine, while so serving on active duty at said section base, did, on or about March 1, 1944, at said section base, willfully, without proper authority, and with intent thereby to deceive for the purpose of thereby obtaining unauthorized liberty from his station and duty with said section base, have in his possession a regular liberty pass of said. section base, which said liberty pass had thereon, as the name of the officer validating said liberty pass, the signature ‘John R. Wells,' which said signature was wholly false and forged, as he, the said Haskell, well knew, the United States then being in a state of war."

Although it involves digressing from our main topic for a moment, a few precautionary observations concerning this specification are in order. First, it should be noted that the specification does not plead the service number of the accused. Today, in conformance with ALNAV 483 of 1946, the full name and service number of an enlisted person must be used in all court-martial and deck-court specifications. The phrase "on active duty" was used here because the accused was a member of the Naval Reserve. If the accused is a member of the regular Navy, this phrase is not necessary. The closing phrase, "the United States then being in a state of war," is today omitted from specifications pursuant to ALNAV 2 of 1946.

Affirmative-duty statute

Let us now proceed to the second of our three types of statutes-the statute that imposes affirmative duties. To illustrate this type, we have chosen the so-called "hit-and-run" statute now in effect in the Territory of Hawaii: Section 11702, Revised Laws of Hawaii, 1945, which reads as follows:

"SEC. 11702. Assistance to persons injured by vehicles. Whenever any vehicle strikes any person, or collides with any second vehicle containing a person, the driver of and all persons within the vehicle who have or assume authority over the driver shall immediately cause the vehicle to stop and shall forthwith render to the person struck, or to the occupant of the second vehicle, all needed assistance, including the carrying of the person or occupant to a physician or surgeon for medical or surgical treatment, if that treatment seems to be required, or if the carrying is requested by the person struck or the occupant of the second vehicle; and the driver, or persons having or assuming authority over him, shall forthwith give to the person struck or the occupant of the second vehicle, the number, if any, of such vehicle with the name and address of the driver, of the owner, and of each person in the vehicle at the time of the striking or collision."

(Penalty for violation of this section is provided for in another section of the Revised Laws of Hawaii, 1945.)

How do we go about pleading this statute? We must first, of course, make our allegations as to name, rate, service number, U. S. Navy, ship or station with which serving, and the place and date of offense. These allegations are common to all specifications.

What does this statute require of the motor vehicle operator? Assuming that the accused was the driver of a vehicle, we find that this statute imposes the following requirements:

If the vehicle driven by the accused has struck a person or another vehicle containing a person:

(1) The accused must stop his vehicle; (2) The accused must render all needed assistance;

(3) The accused must give the person struck or the occupant of the other vehicle (a) the number of the vehicle driven by the accused,

(Continued on page 19)

Uniform Code-Article 49

DEPOSITIONS

By CDR G. W. MARTIN, USN

Did you know that the Code will permit the taking of a deposition on oral examination?

Or that the Code will relegate to a position of mere historical interest the 1-year sentence limitation that currently applies to cases where the prosecution introduces a deposition into evidence?

If not, and if you want to brush up on the subject of depositions generally, then you can put the next 10 or 15 minutes to good use by settling back and joining the author in his analysis of Article 49.

BEFORE WE DISCUSS how and when a

deposition under the Uniform Code of Military Justice can be used, it will be well for us to consider just what is meant by the term "deposition." Section 211 of Naval Courts and Boards defines it as follows: "A deposition is the testimony of a witness, put or taken down in writing, under oath or affirmation, before an officer empowered to administer oaths, in answer to interrogatories and cross-interrogatories submitted by the party desiring the deposition and the opposite party."

Webster's definition is about the same, but it adds the clause, "to replace the viva voce [oral] testimony of a witness." This clause serves to highlight the fact that a deposition is nothing more than a written substitute for the oral testimony of the witness himself. Being written testimony, the deposition can neither convey the inflections of voice nor show the conduct of the witness while he is testifying. Therefore, depositions should not be used except as a last resort. If the pretrial investigation discloses that the principal witness or witnesses are residents of another jurisdiction, and that to obtain their testimony, a deposition would be required, it would normally be advisable to transfer the trial to the jurisdiction where the witness or witnesses would be available to testify in court.

A deposition should not be confused with an affidavit. An affidavit is similar to a deposition to the extent that it is in written form and is sworn to, but there the similarity ends. As pointed out by section 217 of Naval Courts and Boards, an affidavit is ex parte-that is, it is taken at the instance and for the benefit of one party only, and without notice to the adverse party. An affidavit, therefore, offers no possibility of cross-examination of its maker (as a deposition must do) and is for this reason inadmissible in evidence in a criminal case to prove the subject matter with which it deals.

Because a deposition is substitute testimony for an absent witness, and is in the nature of secondary evidence, its use is necessarily limited. All states have by statute established certain requirements that have to be met before a deposition is admissible in evidence. As we shall see, the Uniform Code embodies similar requirements-in article 49 it specifically recites the conditions under which a deposition may be used. We will find, on analysis, that article 49 in covering the "use" of a deposition deals both with when it can be taken, and when it can be admitted into evidence. The first paragraph of the article deals with the first of these:

(a) At any time after charges have been signed as provided in article 30, any party may take oral or written depositions unless an authority competent to convene a court-martial for the trial of such charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate officers to represent the prosecution and the defense and may authorize such officers to take the deposition of any witness.

The most substantial departure from current provisions governing the use of depositions in naval judicial proceedings that is apparent here is the express provision for either "oral or written depositions."

Oral depositions-that is, depositions taken on oral examination-are nowhere mentioned

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