United States v. Collazo-Bermejo

United States Court of Military Appeals

United States v. Collazo-Bermejo

8 C.M.A. 491, 8 USCMA 491, 24 C.M.R. 301, 1957 CMA LEXIS 319, 1957 WL 4769

CourtUnited States Court of Military Appeals

DecidedDecember 13, 1957

DocketNo. 10,245

StatusPublished

This text of 8 C.M.A. 491 (United States v. Collazo-Bermejo) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Collazo-Bermejo, 8 C.M.A. 491, 8 USCMA 491, 24 C.M.R. 301, 1957 CMA LEXIS 319, 1957 WL 4769 (cma 1957).

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Opinion

Opinion of the Court

Homer Ferguson, Judge:

This is another in a series of cases upon which review was granted in or'der to consider the correctness of the law officer’s instructions relating to the offense of desertion. The instruction was as follows:

[492]*492“As to length of absence without authority, it is within the province of the court to determine whether or not the length of time involved, if in the absence of a satisfactory explanation, is of sufficient duration from which it can infer an intent to remain away permanently. You must determine whether or not the absence was much prolonged, and if so, whether or not there was a satisfactory explanation made for it.”

Substantially the same instruction has been held prejudicially erroneous in United States v Soccio, 8 USCMA 477, 24 CMR 287. It is error for the law officer to focus the court’s attention upon one fact — length of absence — to the exclusion of others, thereby permitting the court to infer therefrom an intent to remain away permanently. Such an instruction necessarily precludes the court from giving consideration to all the other evidence in the case. Additionally, we have held it error for a law officer to advise a court that it could infer an intent to remain away permanently from the length of the accused’s absence, in the absence of a “satisfactory” explanation. The burden of proof is never upon an accused to convince a court-martial of his innocence.

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, approve the lesser offense of absence without leave and reassess the sentence on that basis, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

LATIMER, Judge (dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.

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Opinion of the Court

Homer Ferguson, Judge:

This is another in a series of cases upon which review was granted in or'der to consider the correctness of the law officer’s instructions relating to the offense of desertion. The instruction was as follows:

[492]*492“As to length of absence without authority, it is within the province of the court to determine whether or not the length of time involved, if in the absence of a satisfactory explanation, is of sufficient duration from which it can infer an intent to remain away permanently. You must determine whether or not the absence was much prolonged, and if so, whether or not there was a satisfactory explanation made for it.”

Substantially the same instruction has been held prejudicially erroneous in United States v Soccio, 8 USCMA 477, 24 CMR 287. It is error for the law officer to focus the court’s attention upon one fact — length of absence — to the exclusion of others, thereby permitting the court to infer therefrom an intent to remain away permanently. Such an instruction necessarily precludes the court from giving consideration to all the other evidence in the case. Additionally, we have held it error for a law officer to advise a court that it could infer an intent to remain away permanently from the length of the accused’s absence, in the absence of a “satisfactory” explanation. The burden of proof is never upon an accused to convince a court-martial of his innocence.

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, approve the lesser offense of absence without leave and reassess the sentence on that basis, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

LATIMER, Judge (dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.

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Bluebook (online)

8 C.M.A. 491, 8 USCMA 491, 24 C.M.R. 301, 1957 CMA LEXIS 319, 1957 WL 4769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-collazo-bermejo-cma-1957.

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