17 C.M.A. 519 | United States Court of Military Appeals | 1968
Opinion of the Court
Tried by general court-martial, the accused was found guilty of wrongful sale of marihuana, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. Intermediate appellate authorities affirmed, and we granted accused’s petition for review upon a number of assignments of error.
The case against the accused was based principally on the testimony of one Collins, who allegedly purchased marihuana from the accused. In order to bolster his testimony, the Government was permitted, over objection, to introduce a number of prior consistent statements by the witness.
Moreover, though defense requested an out-of-court conference on instructions prior to the argument of the case, the law officer erroneously refused to hold such a hearing. This, too, was error. United States v Neal, 17 USCMA 363, 38 CMR 161; United States v Kuefler, 14 USCMA 136, 33 CMR 348. In like manner, it was improper for him to limit his instructions on the sentence to the mechanics of voting and the maximum limitations on the punishment which might be adjudged. United States v Wheeler, 17 USCMA 274, 38 CMR 72.
Under the circumstances, these errors were clearly prejudicial to accused’s substantial rights. The findings of guilty and the sentence, therefore, cannot stand.
The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered.
