1 C.M.A. 17 | United States Court of Military Appeals | 1951
Opinion of the Court
This case is before the court on a certificate for review from The Acting Judge Advocate General of the Navy under the provisions of Article 67 (b) (2) of the Uniform Code of Military Justice.
“. . . did . . . say to one Curtis R. Hewitt, Corporal, U. S. Marine Corps, who was then and there in the execution of the duties of his office ... ‘I can’t do anything about it now, but I’ll use my fists on you later,’ or words to that effect.”
alleges an offense in violation of Article 4 (Third) A.G.N.
The accused was charged, tried and
It was the opinion of the board that . . words must constitute an actual threat to commit a battery at the time they are spoken . . . that a promise to commit a battery at some time in the distant future . . .” was not a threat under the provision
The other elements being present, the question narrows itself down to the meaning of the term “threat.” As construed by the federal courts:
“A threat is an avowed present determination or intent to- injure presently or in the future.” (Italics supplied.)5
As long as the triers of facts are satisfied that the avowal of threatened injury was made wilfully and intentionally, it is not necessary that it involve immediate injury.
Counsel for the accused in his brief concedes the words charged “was a statement of what appears to be a present intention as to some future action.” No other construction is possible. This places the language well within the definition cited in footnote 5. Counsel for the accused also urges that such construction will result in an absurdity if extended to its limit, i.e., a threat to use fists after “serving a 60 year sentence.” However, that question is not before us for decision. We are here concerned only with facts in this case. Furthermore, under such an extraordinary situation as that suggested by counsel for the accused, we must assume that the authorities will apply some rule of reason. It is not our province to decide in the abstract every conceivable problem that can arise. We decide only that the board of review was in error when it held the words charged did not constitute a threat under Article 4, A.G.N. The decision of the board of review setting aside the finding on Charge I is reversed.
Act of 5 May 1950; 64 Stat. 108; 50 USC §§ 551-736.
“. . . or strikes or assaults, or attempts or threatens to strike or assault, his superior officer while in the execution of the duties of his office.”
A.G.N. 4 (Third)
CMO 3, 1946, 77; CMO 9, 1929, 21; CMO 10, 1925, 17; CMO 11, 1927, 6; Laws Relating to the Navy Annotated (Sup.) 182-183: “The gravamen of the offense is that the accused spoke certain words to his superior officer and in speaking those words he intended to threaten bodily injury.”
United States v. Metzorf, 252 F. 933, 938 (C.A.—Cir.); United States v. Daulong, 60 F. Supp. 235, 236.