United States v. Blackburn

2 M.J. 929, 1976 CMR LEXIS 798
CourtU.S. Army Court of Military Review
DecidedJuly 14, 1976
DocketSPCM 11728
StatusPublished
Cited by7 cases

This text of 2 M.J. 929 (United States v. Blackburn) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Blackburn, 2 M.J. 929, 1976 CMR LEXIS 798 (usarmymilrev 1976).

Opinion

OPINION OF THE COURT

DeFORD, Judge:

At a trial before a military judge sitting as a special court-martial, the appellant, contrary to his pleas, was found guilty of forgery in violation of Article 123, Uniform Code of Military Justice (10 U.S.C. § 923) and received the approved sentence set forth above.

Appellant alleges, among other things, that (1) the military judge abused his discretion and departed from an impartial role as a trier of fact in violation of paragraph 54b, Manual for Courts-Martial, United States, 1969 (Revised edition), when he determined a fundamental infirmity in the Government’s case and called a witness to cure that infirmity; and, (2) the Government failed to prove the charge in that there was no evidence of false alteration because there was no showing of lack of authority and consequently no intent to defraud.

The charge of forgery consisted of eight specifications. The first two specifications were founded upon falsely altering travelers checks and the remaining six specifications were based upon uttering falsely altered travelers checks. The eight specifications involved only six travelers checks.

The six cheeks in question were issued by the American Express Company and had been sold to a soldier named James Phil-yaw. The appellant negotiated three of the checks to the Post Exchange at Fort Dix, New Jersey and the three remaining checks were negotiated to the Fort Dix NCO Club. The appellant signed his own name to all six checks in the signature and countersignature spaces on the instruments. He cashed the checks for money, goods and services. However, payment was refused by the correspondent bank which resulted in an investigation. During the investigation, the appellant was questioned concerning the checks in issue. After appropriate warnings, the appellant gave a sworn statement in which he stated that he found the [931]*931travelers checks and that the checks had writing on them which he erased. He admitted cashing the checks.

At trial, the Government did not introduce any evidence of ownership concerning the checks notwithstanding the allegations contained in the specifications that appellant had erased the name of one James Philyaw on Prosecution Exhibit’s 1 and 2 and that he uttered the six checks knowing they had been falsely altered and would if genuine operate to the legal prejudice of another.

After both sides had rested, the military judge commented that he would like to know the present location of James Phil-yaw. The trial -counsel stated that Philyaw had been transferred to Fort Rucker, Alabama and was not available. The military judge then commented that there was no evidence of ownership of the checks. The Court then recessed until the following day. During the recess, the military judge directed that a Mr. Harmon, the local manager of the American Express Company be called as a witness for the court. Over the objection of the individual defense counsel, Mr. Harmon testified that the cheeks in question were sold to one James Philyaw. In addition, he stated that James Wesley Phil-yaw filed a claim for $140.00. The claim form filed stated that the checks had been locked in Philyaw’s wall locker and “disappeared” therefrom during the night of May 2,1975, and that the checks had been signed by Philyaw in the upper left-hand corner. The claim form was introduced and admitted into evidence without objection.

I

The Manual1 authorizes the Court to call additional witnesses when, in its discretion, it determines the evidence is insufficient for a proper determination of the matter before it or when the Court is not satisfied that it has received all available admissible evidence on an issue before it.

It is well settled in military law that the trial judge is not a mere umpire in the contest between the Government and the accused. He can go beyond ruling on the admissibility of disputed items of evidence and ask questions to clear up uncertainties in the evidence or to develop further the facts for the better understanding of the court-martial. However, he cannot lay aside impartiality, and become an advocate for one side or the other.2

Judicial concern arises only when the nature and extent of the interrogation clearly evidences that the inquirer abandoned his role as an impartial, unbiased fact finder to become a partisan and biased advocate seeking and aiding in a conviction.3

Also, even though the parties have rested, the court may interrupt its deliberations and request witnesses be called to provide sufficient evidence for the court to arrive at a just decision.4

[932]*932We do not believe that the trial judge abused his discretion in calling an additional witness under the circumstances of this case.

Here, the military judge was acting as the finder of fact and law. The evidence which had been presented at the time both parties to the trial rested their cases certainly implied that a representative of the issuing company could provide some relevant testimony concerning the issues before the court. The trial judge left the primary portion of the questioning to counsel. We find nothing improper in the manner he conducted this portion of the trial.5 The nature of the evidence provided by the witness was raised by other admissible evidence presented to the court and was required for a proper determination of the issues. Accordingly, we find no error.

II

Turning to the remaining assignment of error, appellate defense counsel assert, as heretofore noted, that the Government failed to produce any evidence concerning false altering, e. g., lack of authority and consequently there was no evidence of intent to defraud.

The alleged failure of proof does constitute two of the required elements of the offense of forgery under the Uniform Code of Military Justice.6 There appears to be a paucity of precedent concerning forgery of travelers checks in the military system. For that reason, we will treat the subject in some depth.

Travelers checks have special attributes and functions and are anomalous instruments and as such are sai generis. They differ from ordinary checks in that they are sold by banks and express companies and require both a signature as well as a countersignature by the purchaser. They generally are considered, upon purchase, to constitute a sale of credit and have the characteristics of a cashier’s check issued by a bank, and are foreign bills of exchange.7

A travelers check in the exact form in which it was transmitted by the issuing express company to a bank or other agency for sale to its customers, bearing the signature of the treasurer of the express company but with no signature of the purchaser, name of a payee, or countersignature of a purchaser is not a negotiable instrument. However, where the form of the check has been filled in and the signature and countersignature in the space for signing by the purchaser or holder corresponds, the instrument is negotiable under the Uniform Commercial Code.8

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United States v. Snipes
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United States v. Thomas
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United States v. Madey
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United States v. Mansel
12 M.J. 641 (U S Air Force Court of Military Review, 1981)

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Bluebook (online)
2 M.J. 929, 1976 CMR LEXIS 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blackburn-usarmymilrev-1976.