Each prisoner interviewed was either awaiting trial by, or serving sentence of, a summary or general court-martial. One-fourth of the men interviewed wanted an all-officer court. The reason given for their choice was that they believed officers would exercise more mature judgment in deciding cases. The remaining three-quarters of the men expressed the desire to have enlisted men on their courts, stating as a reason the thought that they would be given a fairer trial.

The above results certainly cannot be taken as final or even enough of a sample to say that they represent what we can expect in the naval service as a whole. They are only the results of an informal interview conducted to show the readers. the way some men who are actually being subjected to trials or punishment, feel about this new procedure allowed by the Code.

A brigadier general expresses an opinion

Probably one of the most accurate statements as to the value of the provisions allowing enlisted men to sit on courts-martial was made by Brigadier General Franklin Riter, U. S. Army Reserve, while representing the American Legion during

NEGLIGENCE

(Continued from page 6)

under the latter charge was also lacking. The conviction was set aside.

Shooting at bats

The accused of another case that was set aside in 1945 (CMO 7, 1945, 293) had been charged with and convicted of carelessly endangering the lives of others because he, at a time when five or six people may have been within 100 feet of him, fired two shots from a 12-gauge shotgun. He was on guard duty in the vicinity of a storage area that adjoined living quarters. There was no evidence tending to show that the gun was pointed at or in the general direction of any person or building, or that any person was hit or was close to being hit by either of the two shots. The uncontested and unrefuted testimony of the accused was that "he fired the two shots at bats and that the gun was pointed almost straight up into trees and the sky at the time of firing." The Judge Advocate General held that the mere firing of the two shots in the camp area was in and of itself insufficient to prove the endangering of life, or to show gross and culpable negligence on the part of

the Senate hearings on the original military justice bill. He said: "If the insistence that enlisted men be placed on courts-martial is motivated by the idea that the courts would be more lenient, the proponents of the plan will most probably be bitterly disappointed. In the opinion of the witness, the presence of qualified, intelligent enlisted men on the court will not in any respect result in more acquittals or in less onerous sentences. If, on the other hand, the placement of enlisted men on courts is prompted by the desire to strengthen the courts in the eyes of both the public and the enlisted personnel, this change is justified. . . ."

Despite any forecast of what the future will bring in the way of military justice, we in the naval service will be eagerly looking forward to see the results, not only of this section dealing with the composition of courts-martial, but of all the provisions of the Code. Just as with anything else that is new, it will take time and effort to get the new system operating properly, but we can all hope that the reform that will be brought by the Code will give to both military personnel and the public a greater confidence in the military justice system. £

the accused, and the conviction, accordingly, was set aside.

This case, like the others we have covered, shows all too clearly that charges preferred in haste and without sufficient study can result in a failure of proof and the release of an offender whose conviction of a proper charge could have been upheld. While a convening authority should not attempt to substitute his judgment for that of the court that is to try the offender, the charges he prefers should be based upon a realistic analysis of all the information at hand. And, as you know by now, this analysis should be made in light of the many decisions of the Judge Advocate General that have been published as CMO's.

The Uniform Code

What does all of this add up to under the Uniform Code of Military Justice? For one thing, the pre-trial investigation requirements of the Code (see article on this subject in the October 1950 issue of the JAG JOURNAL) should serve to assist the convening authority in preferring proper charges against the accused, and to reduce the number of convictions that are set aside for the reasons outlined by this article.

As to the element of negligence in involuntary manslaughter, there should be no change. Article 119 (b) of the Code provides:

(b) Any person subject to this code who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being

(1) by culpable negligence; or

(2) while perpetrating or attempting to perpetrate an offense other than those specified in paragraph (4) of article 118, directly affecting the person;

is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.

An examination of the Congressional hearings and debates that preceded enactment of the Uniform Code does not reveal any intent of Congress to alter existing law on the subject of involuntary manslaughter and related offenses.

LIMITATIONS .

(Continued from page 9)

"Mr. ELSTON. Would subsection (3) of section (f) contemplate making any persons not under military authority subject to military trial?

"Mr. LARKIN. No, it would only be those persons who are subject to military law by virtue of article 2. Other civilians would not be subject, but they would be subject to this provision under the United States Code."

Although we have finished the detailed discussion of each paragraph of article 43, our discussion of the statute of limitations would not be complete without mention of other articles of the Code that have a material effect upon the statute. These articles are 3, 77, and 79.

The first of these, article 3, deals with the jurisdiction of courts-martial over persons who committed offenses while in the service but who have been subsequently discharged before being brought to trial (see JAG JOURNAL article on this subject in the August 1950 issue).

The statute of limitations provided in article 43 must be considered in determining whether or not a military tribunal, pursuant to the provisions of article 3, will have jurisdiction to try such discharged persons. In other words, even though article 3 may give the armed forces the necessary jurisdiction over discharged persons, it would be of no value to proceed to trial if accused could

invoke the statute of limitations as a bar to trial or as a defense.

The next article of the Code affected by the statute of limitations is article 77, which provides: Any person punishable under this code who

(1) commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission; or

(2) causes an act to be done which if directly per formed by him would be punishable by this code; is a principal.

The import of this article, when considered in the light of article 43, is that since a person may be charged as a principal although he did not directly commit a crime, the statute of limitations pertaining to the offense is the same as it would be if he had in fact committed the crime himself.

Article 79 of the Code makes provision for the conviction of the accused of an offense lesser than, but necessarily included in, the offense alleged by the specification. How this is affected by the statute of limitations was pointed out in our discussion of paragraph (a) of article 43.

Since the statute of limitations as provided for in the Code is patterned after article 39 of the Articles of War, it is anticipated that the Manual for Courts-Martial that will implement the Code will contain instructions similar to those now contained in the Manual for Courts-Martial, U. S. Army, with respect to the procedural problems involved when the question of the statute of limitations is raised. If Army procedure is adopted, the court-martial will have an affirmative duty to apprise the accused of his right to plead the statute of limitations in bar of trial or punishment when it appears that the statute has run. It is of interest to note that Naval Courts and Boards is silent on this precise point of procedure. +

16

JAG JOURNAL

CMO DIGESTS.

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

For sale by the Superintendent of Documents

U. S. Government Printing Office, Washington 25, D. C.

Price 10 cents, $1.00 per year, $1.35 Foreign

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 accused on several specifications that alleged the cashing of checks for which there were insufficient funds in the accused's bank account. prosecution was permitted to introduce into evidence over the objection of the accused the ledger books of a commissioned officers' mess and a post exchange in order to show that, on occasions prior to the dates of the checks involved in the case, the accused had given other checks for which there were insufficient funds.

Entries in these books tended to show that after the earlier checks had been dishonored the commissioned officers' mess and post exchange had set up accounts receivable against the accused, and that these accounts had been 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 v. Hoffman (1943) 318 U. S. 109). These entries, therefore, were inadmissible to show the condition of the bank account of the accused at the times in question. . . ."

DISMISSAL OF A CRIMINAL ACTION

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

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

N 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.