United States v. Davault

10 C.M.A. 551, 10 USCMA 551, 28 C.M.R. 117, 1959 CMA LEXIS 259, 1959 WL 3419

Opinions

Opinion of the Court

GEORGE W. LatimeR, Judge:

Accused stands convicted of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for two years. We granted his petition for review on a single issue relating to the propriety of the law officer’s instructions.

In his charge to the members of the court-martial, the law officer included the instruction which we considered in United States v Simpson, 10 USCMA 543, 28 CMR 109; United States v Smith, 10 USCMA 549, 28 CMR 115; United States v Blackwell, 10 USCMA 550, 28 CMR 116; United States v Tisdall, 10 USCMA 553, 28 CMR 119; and United States v Shomler, 10 USCMA 555, 28 CMR 121, all decided this date. As we there indicated, the law officer erred in so instructing. The prosecution’s evidence, -however, was uncontroverted and, taking the instructions by their four corners, we are sure that no reasonable person could be misled and that the court members were provided with a correct measuring rod in assessing the evidence. Accordingly, for the reasons set forth in the above-cited cases, we conclude there is no fair risk that accused was harmed by the error.

The decision of the board of review is affirmed.

Chief Judge QUINH concurs.