11 M.J. 420 | United States Court of Military Appeals | 1981
Lead Opinion
Opinion of the Court
During the instructional phase of appellant’s general court-martial
Cotton condemns any equation of “substantial doubt” with the constitutionally required standard of “beyond a reasonable doubt.” While the trial of the instant case predates both Cotton and United States v. Salley, 9 M.J. 189 (C.M.A.1980), these cases do not enunciate new law but resolve the question presented on the basis of the authoritative constitutional standard. Indeed, the authorities urged by the trial defense counsel in his objection to the standard instruction, if they had been followed by the military judge, would have avoided the prejudice now apparent.
The decision of the United States Army Court of Military Review is reversed as to Charge I and its specification and the sentence. The findings of guilty as to Charge I and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on this charge and the sentence may be ordered.
. Tried by a general court-martial with members, the appellant was found guilty — pursuant to his pleas — of the use of marihuana, and contrary to his pleas, of rape, in violation of Articles 134 and 120, Uniform Code of Military Justice, 10 U.S.C., §§ 934 and 920, respectively. He was sentenced to a dishonorable discharge, confinement at hard labor for 10 years, forfeiture of all pay and allowances, and reduction to E-l. The convening authority approved and the intermediate court affirmed the findings and sentence. We granted review (10 M.J. 92) to consider whether “[t]he military judge erred in refusing to give a defense requested instruction on reasonable doubt.”
Dissenting Opinion
(dissenting):
As the present trial predated both United States v. Cotton, 10 M.J. 260 (C.M.A.1981), and United States v. Salley, 9 M.J. 189 (C.M.A.1980), I would affirm the decision of the United States Army Court of Military Review. See my separate opinion in United States v. Salley, supra at 193.