Opinion of the Court
Among other offenses, the accused was convicted by a general court-martial of sodomy, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925 (Charge II). He contends the conviction must be reversed because the law officer’s instructions were insufficient to apprise the court-martial of the effect of his testimony that he was asleep when the alleged act was performed.
After some drinking at a local bar, the accused went to Specialist Hutch-ins’ room. Hutchins testified the accused forced him to commit the offense. In a written pretrial statement the accused admitted the particular act of sodomy that Hutchins recounted, but maintained “it was strictly a voluntary act on the part of both of us.” However, at trial the accused repudiated the statement. Although he admitted he read the statement before he signed, his trial version of the affair is as follows: “I fell asleep or passed out because after I had slept for a while, I was woke up by Hutchins committing an act of sodomy upon my person.” The accused further testified that he immediately hit Hutchins on the back of the neck or head and “jumped up.” He was “pretty mad.”
At an out-of-court hearing called for the purpose of considering proposed instructions, the law officer informed Government and defense counsel that he intended to instruct on the sodomy charge in accordance with the suggestions set out in the Air Force Manual. AFM 110-5, June 12, 1959, Court-Martial Instructions Guide, page 59. Each counsel said he had no objection. The instruction given is as follows:
“LO: . . . With regard to the specification alleged under Charge II, which alleges the offense of Sodomy, the court is advised that the elements of this offense are as follows: That, at the time and place alleged, the accused engaged in unnatural carnal copulation with Howard Hutchins as alleged. The court is further advised that it is unnatural carnal copulation for a person to place his sexual organ in the mouth of another person. Some penetration is necessary but any penetration, however slight, is sufficient to complete the offense and an emission is not necessary. It is the ruling of the law officer that there is no lesser included offense to this particular specification.”
The parties agree on the basic rule that instructions must be sufficient to provide necessary guideposts for an “informed deliberation” on the guilt or innocence of the accused. United States v Landrum,
During the hearing a question arose as to the relevancy to the charge of sodomy of a proposed instruction on intoxication. Trial counsel considered the proposal inapplicable. His reasoning, which was concurred in by defense counsel, indicates he construed the words “engaged in” as requiring the court-martial to find the accused was aware of the performance of the sod-omitical act.
“TC: . . . If he was ‘passed out cold’ and an act was performed on him, he would have to be found not guilty, because he himself did not engage in the act, but I don’t think the Intoxication would be an issue.
“DC: I concur, more or less, so we’ll make it —.
“LO: An instruction on Intoxication as to Charges I, III and V.
“LO: Are there any additional instructions to which the respective counsel desire to —.
“TC: The trial counsel has no additional instructions.
“DC: I have no further instructions to propose.” [Emphasis supplied.]
The trial lawyers’ understanding of an instruction is, in the absence of other circumstances, a persuasive indication of the meaning attributed to the instruction by the court-martial. See United States v Johnson,
The decision of the board of review is affirmed.