Opinion of the Court
Despite the appellant’s pleas of not guilty, a general court-martial convicted him of robbery and assault with intent to commit robbery. The convening authority approved the court-martial’s sentence of a dishonorable discharge, total forfeitures, confinement at hard labor for two years, and reduction to the lowest enlisted grade. The Court of Military Review affirmed the approved findings and sentence. This Court granted the appellant’s petition on the issue of:
“Whether the law officer erred to the prejudice of the accused by instructing the court-martial:
‘Now, this evidence [i.e., fleeing the scene] would give rise to the fact, would give rise to the inference, that there was a concert of action and a purpose to commit the offense of robbery.’ ”
At about 7:00 p.m. on the evening of February 5, 1969, the appellant went to the Enlisted Men’s Club at Fort Gordon, Georgia, to think about per-gonal problems. Two other soldiers, Hill and Arrington, joined him later. Before the Club closed the appellant drank about eleven beers and three mixed drinks. After the Club closed this group of three Negroes started to walk toward their barracks. Two Caucasian soldiers named Jordan and Youngblood preceded them as the two groups headed down an alley between two buildings. Both groups passed a parked automobile in which sat persons working with the Military Police and the Criminal Investigations Detachment in trying to stop muggings that had occurred at Fort Gordon. At a distance from the car estimated variously at 30 to 75 feet, Arrington attacked Jordan and Hill attacked Youngblood. When Youngblood broke Hill’s grasp, the appellant, who had been standing to the side, approached Youngblood with a clenched fist. Youngblood stabbed the appellant with a knife he withdrew from his pocket after falling to the ground following Hill’s attack on him. According to Youngblood the appellant never hit him. Jordan testified that during the assaults his wallet was removed
Both Arrington and the appellant contend that the attacks followed Jordan’s having referred to their race in terms they considered offensive. The appellant stated that he intended to help Hill when he saw Youngblood break Hill’s grasp but that his purpose was to prevent his friend from being beaten up in what he thought was a simple fight not involving robbery. Youngblood himself testified that it appeared to him that the appellant “was going on about his business” when the attacks began and only later did the appellant come to the assistance of his companions. The evidence is that the alleged removal of Jordan’s wallet and the attempted removal of Youngblood’s wallet had already occurred by the time the appellant tried to help Hill. Arrington asserted that if his group had intended a robbery they hardly would have attempted it so close to an occupied automobile when there was a much more secluded area they soon would have reached.
For the appellant to be held criminally liable as a principal he must have shared with the perpetrators the criminal intent and purpose requisite to the offenses involved. United States v McCarthy,
In his instructions on the specific intent to rob, the law officer summarized the circumstantial evidence. In doing so he included this statement:
“. . . As soon as these acts occurred, the three Negroes, including the accused, immediately ran from the scene. Now, this evidence would give rise to the fact, would give rise to the inference, that there was a concert of action and a purpose to commit the offense of robbery.”
Appellate defense counsel assailed this part of the instructions on the grounds that: (1) The evidence of flight lacked sufficient probative value to merit an instruction; (2) it misstates the law by omitting that the flight must be unexplained and by extending the inferences beyond a consciousness of guilt to a specific intent; (3) it invades the province of the jury by concluding that the evidence had the legal significance of flight and by dictating inference to be drawn; and (4) it is not tailored to the evidence of explanation or to contemporary psychological knowledge and it is not restricted to the lesser included offense of assault.
At other points in the entire instruction, the law officer outlined to the court inter alia that: (1) They must be satisfied beyond a reasonable doubt that the appellant was guilty of all of the elements, including the animus to rob; (2) the appellant might have had a state of mind less culpable than that of the perpetrators; (3) Arrington and Hill may have had an intent to commit robbery that was not necessarily shared by the appellant; (4) if they were not satisfied beyond a reasonable dopbt that the appellant specifically intended to commit robbery but they were satisfied beyond a reasonable doubt that he was guilty of assault and battery, they could find him guilty of only such lesser included offense; (5) the existence of some evidence, direct or circumstantial, or both, tending to establish an essential element of an offense does not preclude the existence of a reasonable doubt with respect to that element; (6) the weight they gave to-an accused’s intent depended on the circumstances attending the facts that gave rise to the inference; and (7) they were not required to give any weight to or draw any inference.
This Court’s decisions require a law officer (now the military judge, to submit the theories of both parties to the court-martial and to provide
Evidence of flight is admissible to establish an accused’s guilt of the offense charged. United States v Harris,
In Hickory v United States,
“ ‘There are so many reasons for such conduct, consistent with innocence, that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves, depending upon surrounding circumstances.’ ”
See also People v Jones,
The law officer, therefore, erroneously extended the principle in this case when he advised the court that fleeing the scene gives rise to the inference that there was a concert of action and a purpose to commit the offense of robbery. Though he later informed the court that the weight to be accorded the inference depended upon attendant circumstances, undue emphasis upon one fact may result in the exclusion of all others on inferring intent. United States v Soccio,
Although the law officer said he would instruct on proof of intent by circumstantial evidence, he did not mention that flight would be part of his instruction, and there was no specific reference to an instruction about the inference to be drawn from flight. After the law officer had instructed the court, he asked: “At this time, I will ask counsel for either side if you have any objection to the instructions I have given or request that I single
Accordingly, the decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered or the Court of Military Review may reassess a sentence based only on the offense of assault that was admitted in court.