13 C.M.A. 66 | United States Court of Military Appeals | 1962
Opinion of the Court
Although it was reasonably placed in issue by the evidence, the law officer failed to inform the court-martial of the elements of simple assault, in violation of Uniform Code of Military Justice, Article 128, 10 USC § 928, as a lesser included offense of specification 1 of Charge III, which alleges that the accused assaulted his superior noncom-missioned officer, in violation of Code, supra, Article 91, 10 USC § 891. This omission requires that the findings of guilty with respect to this offense be set aside. United States v Simmons, 1 USCMA 691, 5 CMR 119; United States v Clay, 9 USCMA 582, 26 CMR 362; United States v Sasser, 11 USCMA 498, 29 CMR 314.
The decision of the board of review is reversed and the record of trial is returned to The Judge Advocate General of the Army. The board of review may affirm a conviction of assault in connection with specification 1 of Chárge III and reassess the sentence or it may order a rehearing with respect to that charge and the penalty.