United States v. Britton

13 C.M.A. 499, 13 USCMA 499, 33 C.M.R. 31, 1963 CMA LEXIS 297, 1963 WL 4808

• Court: United States Court of Military Appeals
• Decided: March 1, 1963
• Docket: No. 16,194
• Status: Published

Opinions

Opinion of the Court

Ferguson, Judge:

Captain Samuel T. Britton was tried before a general court-martial convened by the Commanding General, 8th Infantry Division, upon two specifications of cheating in a card game, in violation of Uniform Code of Military Justice, Article 133, 10 USC § 933, and a charge of gambling with an enlisted man, in violation of Code, supra, Article 134, 10 USC § 934. He was found guilty of one specification of cheating, and a charge of gambling with an enlisted man. His sentence extended to dismissal and forfeiture of $350.00 for one month.

The convening authority approved the sentence but deferred application of the forfeiture. The board of review affirmed without opinion, and we granted accused’s petition on the issue whether the charge of cheating should have been dismissed by the law officer on the basis that it occurred in a game of chance. See United States v Walter, 8 USCMA 50, 23 CMR 274, and United States v Holt, 7 USCMA 617, 23 CMR 81. We express no opinion on the granted issue but, exercising our inherent authority to notice plain error on the face of the record, pass to the question of the sufficiency of the evidence to establish accused’s guilt of cheating.

During the period from December 1960 through May 1961, accused customarily played poker with several officers at the Air Force Officers’ Club, Wiesbaden, Germany. Generally, the games involved high stakes and the hands were played according to “dealer’s choice.” In March 1961, accused and a Lieutenant Sanders were the only remaining participants in a hand of “Congo which is a version of seven-card stud.” Another player, Major Stal-lings, glanced at the undealt cards, the discards in the center of the table, recalled the number of cards dealt each person, and mentally calculated that the deck was inexplicably two cards short. He announced that “the deck was short” and, although play had ended, asked Sanders and Britton to hold their cards. Sanders dropped or 'threw his hand into the discard pile and Britton followed suit. As Britton threw his hand in, Stallings observed them and counted two extra cards. No further count was possible because of the general intermingling of hands and discards. As no one else had noticed “what I had seen,” Stallings made no “direct accusation” and continued to play poker with accused, Sanders, and the others.

The foregoing evidence constituted the sole basis for the specification of cheating of which accused was understandably acquitted. As Stallings’ suspicions were later communicated to Lieutenant Sanders, this evidence nevertheless casts light on the latter’s testimony in connection with the charge now before us.

In May 1961, another of the series of poker games occurred at the Officers’ Club. Participating were the accused, Major Heiser, Major Fredricks, Lieutenant Sanders, Captain Armstrong, Captain Mallette, and a Mr. Nelson. After a few hands were played, Major Heiser became dealer. As he shuffled the cards, “it just felt like I didn’t have them all.” Heiser announced the fact that the deck was short and asked that all cards be thrown in. No more cards turned up, and it was suggested that the deck be counted. The tabulation revealed two cards were missing.

Lieutenant Sanders was suspicious of Captain Britton because of the earlier incident involving Major Stallings. As soon as it had been determined there was a shortage of cards, he began to watch the accused closely. He observed him pull his left hand from between his legs and place it in his left front pants pocket. When accused withdrew his hand, Sanders called upon everyone to empty their pockets on the table. Captain Britton stood up with the others and put his hands in his trouser pockets and removed various items. According to Sanders’ testimony:

“Then he pulled some things from out of his right rear pocket then, if he had anything pulled some things from his left rear pocket. Then he went back to his left front pocket with his left hand and pulled out something and run [sic] it up behind his back, like this, and hesitated a moment and brought his hand down again, then he put his hand into his right rear pocket and came up. While he was back there he took his right — - he took something from behind his belt and was about to slip it into his right rear pocket when I grabbed his wrist.”

When his wrist was grabbed, Britton “clenched his hand and there was a crunching sound.” “It didn’t sound like paper, it sounded like cardboard.” Accused freed himself and was told to leave his money on the table until the matter could be settled. Accused nevertheless attempted to gather his funds, and Sanders seized them.

A scuffle ensued, with the parties finally being separated after Nelson went to Sanders’ assistance. Accused then grabbed Sanders’ money from the table. Finally, it was agreed that the two sums would be exchanged by their respective owners, and comparative peace was restored.

Accused started to leave the card room and was immediately followed by Sanders and Nelson, the former yelling for him to stop. Accused whirled and told Sanders not to come any further or “ T will gut you.’ ” At that timé, he had something shiny “sticking out about a half of an inch” from his right hand. Sanders and Nelson stopped. Britton then left the room and the others returned to the table.

The two missing cards were never found. Neither Sanders nor any other witness actually saw them in accused’s possession at any time, nor could they state the nature of the “something” which accused allegedly had transferred to a rear pocket.

A short time later, accused returned to the room. According to Sanders, “he said, Tf I promice [sic] not to do anything like that again would you let me play’, and we all said no.” Mr. Nelson testified that accused said “in words or substance, ‘Can I continue to play if I don’t cheat’ ?” Britton then spoke with Major Heiser in private and declared:

“. . . ‘Major, I know what I have done is unforgivable,’ words to that effect, that he knew what he had done was unforgivable, but, however, he said, ‘You know, my wife has gone home to the States and she’s living with some relatives,’ and he was in financial difficulties.”

Heiser suggested that the players “might overlook it” if accused left his money on the table and departed. Accused agreed to this, but when Heiser put the question to the others in the group, they refused to remain quiet about the incident. Accused then spoke with Lieutenant Sanders privately and told him, “ ‘You know that I am not a good enough player to be able to maintain my status in this game without doing something that will give me an advantage, and therefore I had to do something like this.’ ” Sanders replied that “we couldn’t condone any sort of cheating ... in our poker game.”

The game was ended and, as Sanders went to his car in the parking lot, Brit-ton approached him once more. He asked Sanders not to report the incident, as it would “ruin” Mm. Sanders replied that he was sorry but felt that “something should be done.”

Sanders admitted that he and Nelson later approached accused and offered to forget the matter in return for a payment of $500.00. However, he realized on the “very same day” that the proposal was a mistake. Subsequently, he refused to accept the sum from accused.

For the defense, Captain Mallette testified that he participated in the game and at no time did he hear accused say he had cheated. Having known Captain Britton for approximately four years, he considered him to be a fine officer and was not aware of any financial difficulties in which he was enmeshed. Other character witnesses attested to Britton’s outstanding background in like manner.

Testifying in his own behalf, accused unequivocally denied he had engaged in cheating the other players; declared that the fight with Sanders had erupted over the lieutenant’s sudden seizure of his money from the table; and denied he had ever admitted his guilt to the other players. He explained that, they had misunderstood what was intended to be no more than an apology for his unseemly brawling with Sanders.

In measuring the sufficiency of the evidence to sustain the findings of guilty as a matter of law, we must view the proof from the standpoint most favorable to the Government. United States v Brand, 10 USCMA 437, 28 CMR 3; United States v O’Neal, 1 USCMA 138, 2 CMR 44. And if it is pei’missible to consider accused’s voluntary statements on the night of the incident, it is apparent that his guilt is not open to question. They establish beyond cavil that he sought dishonorably to cheat his fellow players, in violation of Code, supra, Article 133. But such statements, lacking the necessary corroboration, may not serve as the predicate for findings of guilty. United States v Smith, 13 USCMA 105, 32 CMR 105. As we said in United States v Young, 12 USCMA 211, 30 CMR 211, at page 213:

“It is settled military law that, in order to sustain findings of guilty, an accused’s confession must be corroborated by substantial, independent evidence tending to establish the existence of each element of the offense charged.”

Is there such evidence in this case, aliunde the accused’s statements? We think not. Careful examination of the entire record discloses that only two real facts are established by the testimony of the various witnesses. They are the shortage of two cards in the deck when it was passed to Major Heiser as the new dealer and accused’s hand movements. While we frankly question the ability of any card player to detect the loss of only two cards by hefting the deck, the accuracy of Heiser’s observation was established by counting. Beyond this, however, the declarations of the witnesses amount to no more than conclusory accusations and surmise concerning what Lieutenant Sanders deemed suspicious behavior on Captain Britton’s part. Such suspicion and belief may serve these officers as an adequate reason for denying the accused the privilege of further association with them, but it hardly reaches the level of the necessary “substantial, independent evidence” of cheating at cards. United States v Smith, supra; United States v Young, supra.

Undoubtedly, as Sanders testified, the shortage was viewed by him in light of Major Stallings’ earlier comments concerning accused’s alleged behavior in another game. Bearing these suspicions in mind, Sanders was able only to state that accused drew his hands from between his knees and placed one of them in his left trousers pocket. After all players, including the accused, began to empty their pockets on the table, Sanders further asserted that accused transferred “something” from his left pocket to behind his belt and thence to his rear pocket. Significantly, however, the Lieutenant was unable to state the nature of this “something.” Indeed, he admitted that he never actually observed anything in accused’s hands.¹

The unseemly struggle between Brit-ton, Sanders and Nelson was productive of no circumstance tending to establish the former’s guilt, nor is his leaving the room after having thus been attacked.

Summed up, then, the corroboration of accused’s statements, each version of which seems to vary according to the particular witness testifying, amounts only to the shortage of two cards plus movements of the accused’s hands to and from various pockets. No cards were found in the room and, in fact, there is simply nothing to show that anyone, with intent to defraud, withheld cards from the deck when the deal passed to Major Heiser. At most, accused’s initial hand movements might arouse suspicion on the part of the other players. Their subsequent use in connection with the contents of his pockets can most reasonably be interpreted as no more than compliance with Sanders’ suggestion that all pockets be emptied on the table. But even if these movements also be considered as indicative of untoward conduct in the poker game, they too arouse no more than a suspicion that cards were being held out. Certainly, we are not able to conclude they are a substantial indication of the probability that someone was cheating at cards. And, as the record is devoid of other evidence tending to establish the offense — aside, of course, from accused’s statements — we must necessarily conclude that the proof of guilt is insufficient in law. United States v Smith, supra, at page 120.

The findings of guilty of Charge I and its remaining specification are set aside. The record of trial is returned to The Judge Advocate General of the Army. A rehearing on the sentence is directed.

Chief Judge Quinn concurs.

1 It is not without significance, we believe, that Sanders’ testimony in this regard was impeached by evidence that he had, under oath in the pretrial investigation, declared that accused’s fingers were pried apart during their struggle, disclosing the cards. We note also, with some amazement, that this officer admitted without cavil his attempt to extort $500.00 from the accused in return for quashing the accusation against him. While these considerations bear not upon legal sufficiency, they are worthy of note in view of the conclusory nature of the witness’ testimony concerning Britton’s behavior.