1 C.M.A. 534 | United States Court of Military Appeals | 1952
Opinion of the Court
The accused was convicted by general court-martial of wrongful possession of narcotics in violation of Article 134 of the Uniform Code of Military Justice, 50 USC § 728, and possession of a device used to administer drugs in violation of Article 92- of the Code, 50 USC § 686. He was sentenced to a dishonorable discharge, total forfeiture of pay, and confinement for two years. The convening authority approved, suspending the discharge until release from confinement. The Army board of review held that the findings of guilty of wrongful possession of narcotics were correct in law and fact and appropriate to support the sentence. The board, therefore, deemed it unnecessary to discuss the errors raised in relation to the conviction under Article 92, citing Whitfield v. Ohio (1936) 297 US 431, 80 L ed 778, 56 S Ct 532; and Claassen v. United States (1891) 142 US 140, 35 L ed 966, 2 S Ct 173. The accused has petitioned for review, raising several errors.
After the law officer had instructed the court on the elements of,the oifenses charged and after the court had closed to deliberate on its findings, the law officer and the reporter were called into the presence of the court and, according to the record, “the court stated that it wished further instruction as to the elements of proof under Article 92.” The record then states that “the law officer so advised the court.” The actual advice does not appear in the record. The consultation took place in the absence of the accused and his counsel. This was prejudicial error. United States v. Keith (No. 503), 1 USCMA 493, 4 CMR 85, decided July 30, 1952; United States v. McConnell, (No. 596), 1 USCMA 508, 4 CMR 100, decided July 31, 1952; United States v. Smith (No. 512), 1 USCMA 531, 4 CMR 123, decided August 6, 1952.
The decision of the board of review is reversed and a rehearing is ordered.