Opinion of the Court
Quinn, Chief Judge:
At his trial before a general court-martial at Fort Jay, New York, the accused pleaded guilty to a charge of unauthorized absence; and to a specification of desertion, he pleaded guilty to unauthorized absence for the period alleged, but not guilty to the allegations that he intended to remain away permanently and that he was “apprehended.” The court-martial found the accused guilty as charged, and imposed a sentence on the basis of the greater sentence authorized for desertion “terminated by apprehension.” See Manual for Courts-Martial, United States, 1951, Table of Maximum Punishments, paragraph 127c, Section A, page 220; United States v Nickaboine, 3 USCMA 152, 11 CMR 152. On this [195]*195appeal, the accused contends the evidence is not legally sufficient to support the finding and that the law officer’s instructions on the issue were incorrect.
We consider first the sufficiency question. On May 14, 1961, Francis Hopkins, a New York City Patrolman, observed a car turn against the traffic control signal at the intersection of 42d Street and 8th Avenue in the Borough of Manhattan. Pie stopped the vehicle. The accused was the driver. Officer Hopkins noticed there was no key in the ignition switch. When asked about the ownership, the accused admitted to the police officer the vehicle was “just stolen.” Hopkins immediately took the accused into custody and brought him to a police station on 54th Street. Presented to the desk officer and asked- to identify himself, the accused gave his name, his home address in McKeesport, Pennsylvania, and said he was in the Army. “At that point,” the accused was asked for a pass or leave orders. He then admitted he was absent without authority from his unit at Fort Leonard Wood, Missouri. From Officer Hopkins’ testimony it appears inferentially that military police were stationed in the precinct building, and that they were notified of the accused’s apprehension. Two military policemen came to the interrogation room where the accused was being questioned within thirty-five minutes of notification. In the meantime, the accused had told the civilian police officers he was “glad that he was taken into custody,” and he “wanted to get things straightened out with the Army.” He also said he had had certain “problems” at Fort Leonard Wood, and he wanted to “explain” these to Army Officers.
Before his trial by court-martial for his military offenses, the accused was tried and convicted in a civilian court for theft of the automobile. He was sentenced to “three months [at] Rikers Island,” a civilian confinement facility. Prosecution Exhibit 1, a morning report extract, indicates the accused was “App Civ Auth 1215 hrs 14 May 61” but was carried on the rolls of the reporting organization as absent “in hands civ auth House of Detention Brooklyn NY.” A second entry, dated July 28, shows the accused’s status was changed from confinement by the civilian authorities to confinement at Fort Jay.
There is no indication that a formal detainer was placed against the accused by the military. At trial, the parties proceeded on the theory the circumstances of the apprehension on May 14 by Officer Hopkins defined the nature of the termination of the accused’s unauthorized absence on July 28. On that theory the morning report entry might be sufficient by itself to support the finding of apprehension, even though the accused’s physical return to military control was not effected because he was held by the civil authorities for trial and punishment for the civilian offense.1 See United States v Simone, 6 USCMA 146, 19 CMR 272. Whether the entry is sufficient, however, need not detain us. It is appropriate, under the circumstances of the case, to test the sufficiency of the evidence according to the theory upon which the case was tried and argued by both parties. See United States v Justice, 13 USCMA 31, 32 CMR 31, footnote 3; cf. United States v Deller, 3 USCMA 409, 12 CMR 165.
The accused contends the word “apprehension” as a basis for increased punishment applies to only two situations. The first is .where the accused is “actually picked up [for desertion] by the military authorities or by the civilian authorities on behalf of the military.” See Articles 7 and 8, Uniform Code of Military Justice, 10 USC §§ 807, 808. The second is where the accused is apprehended by civil authorities for a civil offense and reveals his military status “for the sole purpose of avoiding prosecution for the civil offense by the civilian authorities.” See [196]*196United States v Nickaboine, supra; United States v White, 3 USCMA 666, 14 CMR 84. Continuing his argument, the accused maintains that the first situation is manifestly not present here; and as to the second, the credible evidence compellingly shows the accused disclosed his military status, not to escape civilian prosecution, but to establish “contact” with the military authorities. The argument is based upon too narrow a reading of the Manual’s punishment provision.
In the Nickaboine case we reviewed the background of the phrase “terminated by apprehension,” as used in the Table of Maximum Punishments. We held that “apprehension” contemplates termination of the accused’s absence in an involuntary manner; and “termination otherwise” is an absence ended “freely and voluntarily.” In other words, the Manual provision does not differentiate between these two classes of termination by means of particular situations, but rather by way of a broad definition for each category.
Tested by the Nickaboine construction of the meaning of the Manual provision, there is clearly substantial evidence to support the court-martial’s finding of apprehension. The court-martial could reasonably find the accused’s absence was terminated, not by his own willing act, but “under the compulsions” of his arrest for car theft. United States v Nickaboine, supra, page 156. He disclosed his status as an unauthorized absentee only in the course of the civilian police inquiry into his identity. His remark that he was “glad” he was in custody indicates he expected his arrest by the civilian police to lead directly to “contact” with the military. True, he testified that when he revealed his military status he “didn’t think about” avoiding civilian prosecution for stealing the car, but the court-martial was free to disregard this testimony, and to conclude from the other evidence that he did have that purpose in mind. See United States v Babb, 6 USCMA 191, 19 CMR 317. Apart from whether it believed or disbelieved the accused’s testimony, the court-martial could find beyond a reasonable doubt from all the evidence that the absence was terminated by “events and agencies wholly beyond [the accused’s] control,” which is termination by “apprehension” within the Manual provision. United States v Simone, supra; see also United States v White, supra.
Turning to the instructions on apprehension, the accused contends they are so misleading as to be prejudicial. With material parts separately numbered for convenience, the instructions are as follows:
“[1] The term ‘Apprehension’ as used in the specification imports that the accused’s return to military control was involuntary. [2] It must be shown that neither the accused nor persons acting at his request initiated his return.
“[3] The fact that the accused was apprehended by civilian authorities, for a civilian violation, and was thereafter turned over to military control by the civilian authorities, is not conclusive proof that the accused’s return was involuntary.
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Opinion of the Court
Quinn, Chief Judge:
At his trial before a general court-martial at Fort Jay, New York, the accused pleaded guilty to a charge of unauthorized absence; and to a specification of desertion, he pleaded guilty to unauthorized absence for the period alleged, but not guilty to the allegations that he intended to remain away permanently and that he was “apprehended.” The court-martial found the accused guilty as charged, and imposed a sentence on the basis of the greater sentence authorized for desertion “terminated by apprehension.” See Manual for Courts-Martial, United States, 1951, Table of Maximum Punishments, paragraph 127c, Section A, page 220; United States v Nickaboine, 3 USCMA 152, 11 CMR 152. On this [195]*195appeal, the accused contends the evidence is not legally sufficient to support the finding and that the law officer’s instructions on the issue were incorrect.
We consider first the sufficiency question. On May 14, 1961, Francis Hopkins, a New York City Patrolman, observed a car turn against the traffic control signal at the intersection of 42d Street and 8th Avenue in the Borough of Manhattan. Pie stopped the vehicle. The accused was the driver. Officer Hopkins noticed there was no key in the ignition switch. When asked about the ownership, the accused admitted to the police officer the vehicle was “just stolen.” Hopkins immediately took the accused into custody and brought him to a police station on 54th Street. Presented to the desk officer and asked- to identify himself, the accused gave his name, his home address in McKeesport, Pennsylvania, and said he was in the Army. “At that point,” the accused was asked for a pass or leave orders. He then admitted he was absent without authority from his unit at Fort Leonard Wood, Missouri. From Officer Hopkins’ testimony it appears inferentially that military police were stationed in the precinct building, and that they were notified of the accused’s apprehension. Two military policemen came to the interrogation room where the accused was being questioned within thirty-five minutes of notification. In the meantime, the accused had told the civilian police officers he was “glad that he was taken into custody,” and he “wanted to get things straightened out with the Army.” He also said he had had certain “problems” at Fort Leonard Wood, and he wanted to “explain” these to Army Officers.
Before his trial by court-martial for his military offenses, the accused was tried and convicted in a civilian court for theft of the automobile. He was sentenced to “three months [at] Rikers Island,” a civilian confinement facility. Prosecution Exhibit 1, a morning report extract, indicates the accused was “App Civ Auth 1215 hrs 14 May 61” but was carried on the rolls of the reporting organization as absent “in hands civ auth House of Detention Brooklyn NY.” A second entry, dated July 28, shows the accused’s status was changed from confinement by the civilian authorities to confinement at Fort Jay.
There is no indication that a formal detainer was placed against the accused by the military. At trial, the parties proceeded on the theory the circumstances of the apprehension on May 14 by Officer Hopkins defined the nature of the termination of the accused’s unauthorized absence on July 28. On that theory the morning report entry might be sufficient by itself to support the finding of apprehension, even though the accused’s physical return to military control was not effected because he was held by the civil authorities for trial and punishment for the civilian offense.1 See United States v Simone, 6 USCMA 146, 19 CMR 272. Whether the entry is sufficient, however, need not detain us. It is appropriate, under the circumstances of the case, to test the sufficiency of the evidence according to the theory upon which the case was tried and argued by both parties. See United States v Justice, 13 USCMA 31, 32 CMR 31, footnote 3; cf. United States v Deller, 3 USCMA 409, 12 CMR 165.
The accused contends the word “apprehension” as a basis for increased punishment applies to only two situations. The first is .where the accused is “actually picked up [for desertion] by the military authorities or by the civilian authorities on behalf of the military.” See Articles 7 and 8, Uniform Code of Military Justice, 10 USC §§ 807, 808. The second is where the accused is apprehended by civil authorities for a civil offense and reveals his military status “for the sole purpose of avoiding prosecution for the civil offense by the civilian authorities.” See [196]*196United States v Nickaboine, supra; United States v White, 3 USCMA 666, 14 CMR 84. Continuing his argument, the accused maintains that the first situation is manifestly not present here; and as to the second, the credible evidence compellingly shows the accused disclosed his military status, not to escape civilian prosecution, but to establish “contact” with the military authorities. The argument is based upon too narrow a reading of the Manual’s punishment provision.
In the Nickaboine case we reviewed the background of the phrase “terminated by apprehension,” as used in the Table of Maximum Punishments. We held that “apprehension” contemplates termination of the accused’s absence in an involuntary manner; and “termination otherwise” is an absence ended “freely and voluntarily.” In other words, the Manual provision does not differentiate between these two classes of termination by means of particular situations, but rather by way of a broad definition for each category.
Tested by the Nickaboine construction of the meaning of the Manual provision, there is clearly substantial evidence to support the court-martial’s finding of apprehension. The court-martial could reasonably find the accused’s absence was terminated, not by his own willing act, but “under the compulsions” of his arrest for car theft. United States v Nickaboine, supra, page 156. He disclosed his status as an unauthorized absentee only in the course of the civilian police inquiry into his identity. His remark that he was “glad” he was in custody indicates he expected his arrest by the civilian police to lead directly to “contact” with the military. True, he testified that when he revealed his military status he “didn’t think about” avoiding civilian prosecution for stealing the car, but the court-martial was free to disregard this testimony, and to conclude from the other evidence that he did have that purpose in mind. See United States v Babb, 6 USCMA 191, 19 CMR 317. Apart from whether it believed or disbelieved the accused’s testimony, the court-martial could find beyond a reasonable doubt from all the evidence that the absence was terminated by “events and agencies wholly beyond [the accused’s] control,” which is termination by “apprehension” within the Manual provision. United States v Simone, supra; see also United States v White, supra.
Turning to the instructions on apprehension, the accused contends they are so misleading as to be prejudicial. With material parts separately numbered for convenience, the instructions are as follows:
“[1] The term ‘Apprehension’ as used in the specification imports that the accused’s return to military control was involuntary. [2] It must be shown that neither the accused nor persons acting at his request initiated his return.
“[3] The fact that the accused was apprehended by civilian authorities, for a civilian violation, and was thereafter turned over to military control by the civilian authorities, is not conclusive proof that the accused’s return was involuntary. Such return maybe [sic] deemed involuntary if after the accused was apprehended, such civilian authorities learned of the accused’s military status from someone other than him or persons acting at his request. [4] In addition the return maybe [sic] involuntary if after being apprehended by civilian authorities the accused disclosed his identity as a result of a desire to avoid trial, prosecution, punishment or other criminal action at the hands of such civilian authorities. However, if the accused disclosed his identity to the civilian authorities, because of his desire to return to military control, his return should not be deemed involuntary or by apprehension. . . .
“The arrest of an accused by civilian authorities does not, in absence of special circumstances, terminate his unauthorized absence by apprehension where the record does not show such apprehension to have [197]*197been connected with or done on behalf of the military authorities. Thus, in absence of special circumstances, mere apprehension by civilian authorities does not sustain the burden of showing that the return to military control was involuntary.”
The first and second statements paraphrase language from our opinion in the Simone case, supra. We there indicated that apprehension is established by evidence showing "a return of the accused to military control uninitiated by him or by another acting at his request.” Supra, page 150. Opinion language may not always be suitable in an instruction to a court-martial, but here the statements provide a correct and appropriate definition for determining whether the accused’s absence was terminated by “apprehension.” United States v Niekaboine, supra. Except for the words “conclusive proof,” the accused does not dispute the correctness of the third statement. The questionable words may be inappropriate. United States v Cotton, 13 USCMA 176, 32 CME 176. However, in our opinion, the reasonable import of the whole instruction is to the effect that apprehension by civil authorities may be considered as evidence of termination of absence by apprehension only “if after . . . [apprehension] such civilian authorities learned of the accused’s military status from someone other than . . . [the accused] or persons acting at his request” or from the accused “as a result of a desire to avoid . . . criminal action at the hands of such civilian authorities.” Moreover, the court-martial was specifically instructed that “mere apprehension by civilian authorities” did not show the accused’s return was involuntary, that is, “apprehension” in the sense used in the specification of the charge. Disclosure of the accused’s military status under either of the circumstances set out in the instruction above may properly be considered by the court-martial as evidence of termination of accused’s absence by “apprehension.” United States v White, supra; United States v Babb, supra; United States v Simone, supra. Consequently, while use of the words “conclusive proof” may be inartful, the principles of law delineated in statements [3] and [4] are correct, and directly applicable to the specific question of fact to be decided by the court-martial. Accordingly, we find no error which presents a fair risk that the court-martial was misinformed.
The decision of the board of review is affirmed.
Judge Kilday concurs.