United States v. Bowling

14 C.M.A. 166, 14 USCMA 166, 33 C.M.R. 378, 1963 CMA LEXIS 215, 1963 WL 4871

Opinions

Opinion of the Court

Quinn, Chief Judge:

The accused was convicted of eleven specifications of issuing a worthless check with intent to defraud, in violation of Article 123a, Uniform Code of Military Justice, 10 USC § 923a. A review of the record indicates there was sufficient evidence to place in issue the lesser offense of dishonorable failure to maintain funds in the bank to meet the checks on presentment, in violation of Article 134 of the Uniform Code, 10 USC § 934. However, the law officer failed to instruct the court-martial on the lesser offense as a reasonable alternative to that charged. The omission constitutes prejudicial error. United States v Margelony, 14 USCMA 55, 33 CMR 267.

The decision of the board of review is reversed and the findings of guilty and the sentence are set aside. The record of trial is returned to The Judge Advocate General of the Army for submission to a board of review for further action consistent with the opinion.

Judge Kilday concurs.