Lead Opinion
Opinion of the Court
A general court-martial in Japan found the accused guilty of twenty specifications alleging a failure to obey a Far East Command Circular, in violation of Article 92, Uniform Code of Military Justice, 50 USC § 686. On appeal, a board of review reversed the conviction on the ground that a pretrial statement of the accused was improperly admitted in evidence. Under the provisions of Article 67(6) (2), Uniform Code of Military Justice, 50 USC § 654, The Judge Advocate Gen
“Was the Board of Review correct in determining in this case that the evidence apart from accused’s voluntary pre-trial confession was legally insufficient to establish the corpus delicti of the offenses charged?”
In addition, we granted the accused’s petition for review to consider the sufficiency of the law officer’s instructions.
Each specification of which the accused was convicted alleges the purchase of Air Force Exchange items, “for the purpose of resale to a person not authorized to purchase from the Air Force Exchange,” in violation of Paragraph 10(h), General Headquarters, Far East Command Circular No. 54, dated October 26, 1950. Fourteen of the specifications allege the purchase of a single wrist watch; one sets out a purchase of two watches and a watch band; and the remaining five charge the purchase of a radio. All purchases were made during the period from December 1, 1952, to January 28, 1953.
Paragraph 10(h) of the Far East Command Circular reads:
“The purchase of exchange items for the purpose of resale, trade, or barter to or with any person who himself is not authorized to purchase from an exchange is prohibited.”
Other subdivisions of the same paragraph enumerate the classes of persons and agencies who are authorized to buy exchange merchandise. Civilian employees residing in the country of their nationality are excluded, unless specifically authorized by the commander responsible for the operation of a central exchange.
At the trial it was established that a prescribed form of sales slip is used in the Air Force Exchange, Branch 198, Nagoya, Japan. The form is used to record the sale of every article sold for more than $5.00. It is completed in duplicate. The original is retained in the exchange and the duplicate is given to the customer. Among other things, it requires a statement of the name and organization of the purchaser and his signature.
Twenty sale slips, from the records of Exchange Branch 198, were admitted in evidence. Each related to a separate specification. Fifteen bore the name and organization of the accused; one had only his name; and four were purportedly signed by a “George Landrith.” Also admitted in evidence, as Prosecution Exhibit 22, were exemplars of the accused’s handwriting. A witness presented photographic enlargements of the sale slips and the exemplars. Although his qualifications as a handwriting expert were strongly attacked by the defense, the law officer ruled that he was properly qualified. Using the enlargements, the expert pointed out certain characteristics which, in his opinion, indicated that the signatures on the sale slips were made by the same person who made the sample writings on Prosecution Exhibit No. 22.
No direct evidence was presented to show specific dispositions of post exchange items by the accused. However, a Mr. Harukichi Masaki testified that he knew the accused, and that he had bought a “few” exchange items from him. Mr. Masaki maintained he had never purchased a wrist watch or radio from the accused. He did not remember whether he had ever seen any member of his family or other persons buy exchange items from the accused. Mr. Masaki stated that he was a Japanese National and he had never been authorized to buy exchange items.
At this stage of the case, the Government offered in evidence a written pretrial statement by the accused. In it he admitted that he engaged in “black market activities” since September 1952, and that he had sold to the Nagoya “clearing house,” “practically everything that [he] could buy at the PX.” It was established that the statement was made voluntarily, without improper inducement, and after full warning of his rights under Article 31 of the Uniform Code, supra, 50 USC § 602. Objection was interposed on the ground that there was not sufficient corroborating evidence of the commission of the offenses charged to justify admission
Before the law officer’s final instructions on the law, defense counsel submitted two requests to instruct. The first related to the elements of the offense and asked, in pertinent part, that the court be instructed:
“That at the time the accused purchased the item alleged in the Specification he intended to resell the item to a person or persons not included within the classes of persons authorized to make purchases in an Air Force Post Exchange.
“The classes of persons authorized to make purchases in Air Force Post Exchanges are: [enumerating the classes set out in the Circular].”
The accused’s second request is as follows:
“An accused cannot legally be convicted upon his uncorroborated confession or admission. A court may not consider the confession or admission of the accused as evidence against him unless it be corroborated by some evidence, direct or circumstantial, that the offense charged has probably been committed, that is, at least some evidence bearing on each element of the crime alleged. If the offense alleged includes as an element specific intent, before a confession or admission of the accused can be used as evidence against him, it must be corroborated by some evidence indicating that the accused at the time of the alleged intent [sic] possessed the specific intent required.”
Both requests were denied.
The court was instructed that the elements of the offense were:
“(1) That there was in effect a lawful general regulation as alleged; and
“(2) That at the time and place and in the manner alleged, the accused violated the general regulation.”
In addition, the court was instructed on the presumption of innocence and the burden of proof, and was given separate instructions on the weight of circumstantial evidence and the testimony of an expert witness.
Military law proscribes a conviction founded solely upon an accused’s uncorroborated confession or ad- mission of guilt. Manual for Courts-Martial, United States, 1951, paragraph 140a, page 251. The record must contain substantia], independent evidence tending to establish the existence of each element of the offense charged. United States v. Isenberg,
Each specification here alleges a violation of the Far East Command Circular prohibiting the purchase of post exchange articles for the purpose of resale to an unauthorized person. No issue is raised as to the sufficiency of the evidence showing exchange purchases. However, the accused contends that the evidence is entirely inadequate to show that the purchases were made for the purpose of resale to unauthorized persons.
In testing the evidence for probability of guilt, within the meaning of the rule of independent corroboration of the eom mission of the offense, consideration must be given not only to the facts actually proven, but also to any reasonable inference that may be drawn from the facts. United States v. Evans,
Two facts stand out. The first is that the accused sold “a few” exchange items to a Japanese National who, under the provisions of Circular 54, was not authorized to purchase such items. These purchases did not include merchandise of the kinds alleged in the specifications, but it is indisputable that direct evidence of some illegal resales tends to establish the accused’s purpose in making other purchases. United States v. Petty, supra; United States v. Hunter,
We turn now to the sufficiency of the law officer’s instructions. The accused contends that they are fatally defective in that they do not include the substance of his two requests. For convenience, we look initially to the question of whether the law officer should instruct the court that it must first find evidence of the corpus delicti before it can consider the accused’s pretrial statement. The requirement of corroboration is set out in the Manual as follows:
“An accused cannot legally be convicted upon his uncorroborated confession or admission. A court may not consider the confession or admission of an accused as evidence against him unless there is in the record other evidence, either direct or circumstantial, that the offense charged had probably been committed by someone.” [Manual for Courts-Martial, United States, 1951, paragraph 140a, page 251.]
In United States v. Dolliole,
A number of state courts have held that, when the evidence of the corpus delicti is not substantial, the trial judge must instruct the jury that it must find probability of the commission of the offense, before it can consider the accused’s pretrial statements. Hawk v. Commonwealth, 284 Ky 217,
“Another instruction requested by appellant and which bore upon the appellant’s admissions or so-called confessions, was defendant’s proposed instruction No. 30a as follows: ‘You cannot consider the defendant’s admissions upon any of the issues of (1) citizenship (2) aid and comfort or (3) intention unless you first find that the Government has introduced other credible corroborative evidence on the same issue. Pearlman v. U. S.,10 F. 2d 460 , 461, 462 (CCA 9). Goff v. U. S.,257 F. 294 (CCA 8).’ We think there was no occasion for giving any such instruction here where there was substantial proof of the corpus delicti wholly apart from the admissions or confessions.”
To the extent that it is consistent with military law and necessity, this Court has followed Federal civilian
In instructing on the elements of the offense, the law officer apparently used, in somewhat varied form, the statement of the elements of proof set out in the Manual. Paragraph 171, page 324. Nevertheless, the accused contends that the instruction is fatally deficient. He maintains that it fails to apprise the court it must find that the accused entertained a specific intent to resell to an unauthorized person.
When instructing on the elements of proof, recourse to pro forma incantations of the Manual’s general statements of proof is dangerous. Thus, in United States v. White,
“. . . Apparently, law officers have not given due consideration to defining the crime accurately. Too much attention is being placed on the wording of the Manual to the effect that the instruction may be given in the language of the applicable sub-paragraph. That requirement is permissive, and in certain instances the contents may be adequate to present fairly the material issues. However, there are offenses which are not sufficiently defined and the elements must be obtained from the punitive article or from some other sources. The ‘Discussion’ and ‘Proof’ contained in the Manual quite often make general statements in reference to the crime, without specifically pointing out the particular and necessary elements, and in many instances the remarks include statements which are not fitted to the issue involved. Some discrimination is required to extract from both the ‘Discussion’ and ‘Proof’ the essential elements of the offense or offenses shown by the evidence, and law officers should make certain that those necessary to a proper definition of the crimes are called to the attention of the courts-martial members.”
We are now asked to find legal inadequacy in the Manual’s statement of the elements of a violation of Article 92. However, we need not reach that broad issue.
The measure of the legal sufficiency of an instruction is whether it provides the court with the neees sary guideposts for an in formed deliberation on the guilt or innocence of the accused. United States v. Williams, supra; United States v. Grossman,
Under the circular, more than a mere purchase is required to constitute a violation of its provisions. The purchase must be accompanied by a particular mental attitude. In the language of the Circular, it must be “for the purpose of resale . . . to . . . any person who himself is not authorized to purchase from an exchange.” The accused’s requested instruction substitutes the words “intended to” for “purpose of” but the substitution does not affect its meaning. Plainly, it seeks to define, in more precise terms than the general instruction, the limits set by the Circular itself. In its subject matter therefore, the request is correct; and it is clearly sufficient to have put the law officer on notice of the issue the accused desired to present to the court. United States v. Phillips, supra. The remaining question then is whether those limits are not also demarcated in the instructions actually given. The Government contends that they are.
At the outset, we put aside the Government’s contention that the closing arguments of counsel “placed emphasis on the necessity for the evidence to show purpose of resale,” and, thereby, served adequately to inform the court of the necessity of a finding on this issue. True, under certain circumstances defense counsel’s own correct enumeration of the elements of the offense and his other conduct may constitute a waiver of his right to object to the failure of the law officer to elaborate fully on those elements in his instructions; but no possible basis for waiver exists here. Cf. United States v. Smith,
That part of the instruction which comes closest to the issue is the reference to “the manner al leged.” That falls far short of presenting the point. First, the word “manner” usually suggests physical action, not mental attitude. Webster’s New International Dictionary, 2d ed., page 1496. If the law officer intended the word to be understood in a broader sense than that accorded it in normal usage, it was certainly appropriate to convey his true meaning to the court. Second, it does not clearly delimit the relationship between the >. purpose to resell and the status of the resale customer. Under the Circular, the Government was required to establish not only that the accused had a purpose to resell, but that he proposed to resell to a person not
The decision of the board of review setting aside the findings of guilty is affirmed. A rehearing is ordered.
Concurrence Opinion
(concurring in the result) :
I concur in the result only, as, in addition to my statement below, I have reservations on other concepts announced which are not material to the result.
There are twenty separate Specifications in this case and each alleges a separate offense. With the exceptions of the date and the description of the article purchased all read the same. Therefore, I need only quote one to disclose the important allegations of all.
“Specification 1: In that . . . did at . , . on or about 1 December 1952, violate a lawful general regulation, to wit: Paragraph lOh, General Headquarters, Far East Command Circular Number 54, dated 26 October 1950, by purchasing an Air Force Exchange item, to wit: One (1) wrist watch (men’s) of a value of about $9.75, for the purpose of resale to a person not authorized to purchase from an Air Force Exchange.”
The instructions which concern us required the court-martial to find as follows: (1) that there was in effect a lawful general regulation as alleged, and (2) that at the time and place and in the manner alleged, the accused violated the general regulation. The instructions were meager, but if followed, they required a finding that the article was purchased for the purpose of resale to an unauthorized person before a finding of guilty could be returned. The requested instruction merely covered the same subject in more detailed language.
My reason for concurring in the result is that my associates have, in prior eases, announced legal principles contrary to my contention and their views have become the law. (United States v. Gilbertson,
Concurrence Opinion
(concurring) :
I am able safely to concur in the principal opinion, for it is clear that the matter contained in it with respect to which I find myself in disagreement — or at least in doubt — may properly be characterized as dicta. I am referring, of course, to the question of whether “the idea of corpus delicti is one which addresses itself solely to the judge and not the jury — to the law dispenser rather than to the fact finder.” See my separate opinion in United States v. Manuel,