United States v. Christophe

2 C.M.A. 375, 2 USCMA 375, 9 C.M.R. 5, 1953 CMA LEXIS 902, 1953 WL 2592

• Court: United States Court of Military Appeals
• Decided: April 14, 1953
• Docket: No. 1698
• Status: Published

Opinion

Opinion of the Court

PER CuRiam:

The accused was convicted by general court-martial of possessing hypodermic syringes contrary to a general order,¹ a violation of Article 92, Uniform Code of Military Justice, 50 USC § 686. Following affirmance of the findings and sentence by intermediate reviewing authorities, this Court granted accused petition for further review.

Accused contends that it was incumbent upon the prosecution to allege and prove that his possession was not within the exceptions specified in the applicable general order. Identical contentions were resolved against the accused in United States v. Gohagen (No. 858), 7 CMR 51, decided February 6, 1953. As we decided in that ease, the exceptions in the general order are not parts of the conduct proscribed therein at all. It is incumbent on the accused to bring himself within the exceptions if he is able to do so.

Further discussion is unnecessary in light of our opinion in the Gohagen case. Accordingly, the decision of the board of review is affirmed.

1 Circular Number 38, General Headquarters, Far East Command, APO 500, dated August 27, 1951, paragraph 2.