Opinion of the Court
A general court-martial at Fort Bragg, North Carolina, convicted the accused of escape from correctional custody, in violаtion of Article 134, Uniform Code of Military Justice, 10 USC § 934, and imposed a sentence which included a dishonorable discharge. On review, a divided board of review set aside the conviction, and ordered a rehearing, on the ground the law officer improperly instructed the court-martial on the elements of the offense. The Judge Advocate General of the Army forwarded the record of trial to this Court, under the provisions of Article 67 (b) (2) of the Code, supra, 10 USC § 867, to consider the following issue:
Was the board of review correct in holding that prejudice to the substantial rights of the accused resulted from the law officer’s failure to instruct the court that they must find beyond a reasonable doubt .that the accused was duly placed in cоrrectional custody?
Administering disciplinary punishment under Article 16 of the Code, supra, 10 USC § 815, for two unauthorized absences, the accused’s battle
At trial, the accused testified in his own behalf. He admitted he was “confined” in a room on the third floor, but said nothing about the escape. However, the Government had introduced an abundance of evidence to show the imposition of Article 15 punishment; the accused’s physical restraint in accordance therewith; and the accused’s escape during the period of correctional custody. Instructing оn the elements of the offense, the law officer advised the court-martial it must find beyond a reasonable doubt the following:
“First, that the accusеd was undergoing punishment of correctional custody, as alleged;
“Second, that the accused knew that he was undergoing the punishment of cоrrectional custody;
“Third, that, at Fort Bragg, North Carolina, on or about 29 May 1964, the accused freed himself from the restraint of his correctional сustody before he had been released from said correctional custody by proper authority, and;
“Fourth, that under the circumstances thе conduct of the accused was to the prejudice of good order and discipline in the armed forces and was of a nature to bring disсredit upon the armed forces.”
The board of review concluded the instructions were prejudicially deficient because they did not require the court-martial to find the accused was “duly undergoing correctional custody.” (Emphasis supplied.) The assumptions implicit in the accused’s testimony can be interpreted as a judicial admission, not only of the fact of custody, but of the legitimacy of its imposition. Defense counsel’s аrgument emphasizes this effect of the accused’s testimony. In part, he said: “We maintain that the prosecution has failed to prove one of the essential elements of a violation of correctional custody. Was this correctional custody properly administered in this situation? We maintain that it was not.”
From its opinion, it appears the board of review used the word “duly” as meaning adherenсe to legal requirements, rather than the observance of mere form. See Black’s Law Dictionary, 4th ed., at page 591. In fact, at severаl places in its opinion, the board of review used the word interchangeably with “legal.” Whether an act comports with law, that is, whether it is legal оr illegal, is a question of law, not an issue of fact for determination by the triers of fact. For example, in a prosecution for disobedienсe of an order, in violation of Article 92, Code, supra, 10 USC § 892, the court-martial must determine whether the order was given to the accused, but it may not сonsider whether the order was legal or illegal in relation to a constitutional or statutory right of the accused. United States v Jordan,
“. . . [W]here an accused raises a defense or objection which should properly be considered by the court in its determination of guilt or innocence, and which resolves itself into a question of fact, that issue must be presented to and decided by the court pursuant to appropriate instructions. But where the issue is purely interlocutory or raises solely a question of law, it is within the sole cognizance of the law officer.”
The law officer’s instructions properly required the court-martial to find that the accused was actually undergoing correctional custody. There was no factual issue as to the authority of the officer who imposed the punishment upon him. Consequently, it wоuld be meaningless to instruct that the court-martial must determine the accused was legally or, as the board of review phrased it, “duly” undergoing punishment оf correctional custody. See United States v Hangsleben,
The certified question is answered in the negative. The decision of the board of rеview is reversed and the record of trial is returned to it, for consideration of the sentence.
Notes
As to whether intolerable conditions of cоnfinement affecting safety or life may justify an escape, see Dempsey v United States, 283 F2d 934 (CA5th Cir) (1960) ; cf. United States v Broy,
While the case was pending review under The Judge Advocate General’s certificate, the accused petitioned this Court for grant of review on other assignments of error сonsidered by the board of review which dealt with the findings of guilty. The petition was denied February 24, 1965. However, in view of its action, the board of review did not consider the accused’s application for modification of the sentence.