Lead Opinion
The sole issue for review in this ease is whether the law officer erred in failing to instruct the court-martial on all elements of the offense of wrongful use of a habit-forming narcotic drug. For the reasons hereafter stated, we conclude the law officer did err and that reversal is required.
The accused was convicted of several offenses, the most serious of which alleged that he wrongfully used a habit-forming narcotic drug, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. It is unnecessary in reaching our decision to relate the facts developed at trial. Following closing argument by counsel, the law officer called an out-of-court hearing for the purpose of advising counsel on the subject of proposed instructions. The law officer advised that concerning the offense of wrongful use of narcotics he intended to “instruct substantially as appears on page 94 of the Law Officer’s Manual.”
“That, at the time and place alleged, the accused wrongfully and knowingly used a habit-forming narcotic drug, as alleged.
“The court is advised in this connection that the use of a habit-forming narcotic drug is presumed to be wrongful unless the contrary appears. The term ‘narcotic drug’ means opium, or any salt, derivative, or preparation of opium. Now, as to the knowingly using a narcotic drug, a person’s using a drug is innocent, for example, when the drug has been duly prescribed for him by a physician and the prescription has not been falsely procured, or when the use of a drug is in the performance of his duty, or when, due to honest ignorance or mistake, his use was without knowledge of the presence or character of the thing used. The burden is on the prosecution to establish the accused’s guilt by legal and competent evidence beyond a reasonable doubt. Consequently, unless you are satisfied beyond a reasonable doubt that the accused was not honestly in ignorance of the fact that a narcotic drug was entering his system, you must acquit the accused. Honest ignorance as to this fact, no matter how unreasonable, will exonerate the accused with respect to the offense of the charge. In determining the issue of the honesty of the accused’s alleged ignorance, you should weigh and consider the probability or improbability of the evidence relating thereto.”
At no time was the court-martial instructed that it must find, in order to convict, that the accused’s conduct was prejudicial to good order and discipline in the armed forces, or was of a nature to bring discredit on the armed forces.
Before the board of review the Government took the position that the prejudicial character and service-discrediting nature of the offense charged was not an element and hence there was no need for the law officer to so instruct. In this Court the Government slightly altered its position and contended that wrongful use of narcotics is “as a matter of law” conduct
In United States v Marker,
We are not unmindful of the disastrous effects occasioned by the wrongful use of narcotics on the health, morale and fitness for duty of persons in the armed forces. However, we cannot ignore the Congressional intent manifested in the Code, supra, and the Manual for Courts-Martial, United States, 1951, that all elements of an offense be instructed upon by the' law officer. Article 51(c), Uniform Code of Military Justice, 10 USC § 851(c); paragraph 73, Manual, supra. United States v Lucas,
The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Army for reference to- a board of review. The board may, in its discretion, dismiss the charge of wrongful use of narcotics and reassess the sentence on the basis of the remaining approved findings of guilt, or it may order a rehearing on the narcotics charge.
Notes
The “Manual” referred to is the “Military Justice Handbook, The Law Officer, No. 27-9, August 1954” which is a Department of the Army pamphlet designed as a “practical - and useful guide for the law officer of a general court-martial.” It is not considered as a “substitute for the Manual for Courts-Martial, 1951,” nor is it “cited as legal authority.” (Chapter 1, paragraph 1, page 4.) On page 94 of the handbook, the following stock instructions are listed under the offense of wrongful use of narcotics.
“(1) That, at the time and place alleged, the accused wrongfully used (a habit forming narcotic drug, as alleged) (marihuana); and
“(2) That, under the circumstances, the conduct of the accused was to the •prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” [Emphasis supplied.]
Dissenting Opinion
(dissenting):
I dissent.
The Manual for Courts-Martial, United States, 1951, paragraph 213a, page 382, states that “It is a violation of this article [Article 134, Uniform Code of Military Justice, 10 USC § 934] wrongfully to possess marihuana or a habit forming narcotic drug.”
Thus, the crime of wrongful use of a narcotic must fall into the category which I described in my dissent in United States v Grosso,
“. . . In connection with the enumerated offenses, it would be an act of sheer futility to require a court-martial to find what is obvious to everyone, namely, that the commission of such offenses has an adverse impact on the military service.”
For the reason expressed above, I would affirm the decision of the board of review.