15 C.M.A. 492 | United States Court of Military Appeals | 1965
Opinion of the Court
Tried by general court-martial, the accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and conspiracy to commit larceny, in violation of Code, supra, Article 81, 10 USC § 881. He was sentenced to bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for twelve months. Intermediate appellate authorities affirmed, and we granted accused’s petition for review upon the issue whether the law officer erred prejudicially in advising the court-martial that accused’s alleged mistake of fact, in order to be a defense to the crimes charged, must be both honest and reasonable. Cf. United States v Walters, 10 USCMA 598, 28 CMR 164; United States v Sicley, 6 USCMA 402, 20 CMR 118; United States v Rowan, 4 USCMA 430, 16 CMR 4.
Examination of the record reveals that, after delivery of the erroneous instruction, defense counsel commendably called the law officer’s attention to his utilization of an incorrect standard. The law officer immediately agreed, withdrew the improper instruction, and substituted therefor an advice in which he emphasized that accused’s mistake need only be honest in order to constitute a complete defense. In light of this action, the effect of the earlier and erroneous instruction was clearly cured, and the case was considered by the court members under the proper standard.
The decision of the board of review is affirmed.
