United States v. Garner

7 C.M.A. 578, 7 USCMA 578, 23 C.M.R. 42, 1957 CMA LEXIS 547, 1957 WL 4425

• Court: United States Court of Military Appeals
• Decided: February 15, 1957
• Docket: No. 8655
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

A general court-martial convicted the accused of larceny and unauthorized absence, in violation of Articles 121 and 86, respectively, of the Uniform Code of Military Justice, 10 USC §§ 921 and 886. Intermediate appellate authorities affirmed. We granted review to consider whether the law officer erred in excluding certain evidence offered by the accused.

The specification under Article 86 alleged an unauthorized absence from November 1 to December 1, 1955. In his plea, the accused attempted to plead guilty to an absence from November 1 to November 23, 1955. The plea was rejected by the law officer as “irregular,” and a plea of not guilty was entered for the accused. The prosecution introduced extract copies of the morning reports of the accused’s organization. These show that the accused absented himself without authority on November 1, 1955; that he was apprehended by civilian authorities on November 23; and that he came under military control on December 1. As part of its case, the defense offered a deposition by Deputy Sheriff W. L. Brewer, Maryville, Tennessee. Trial counsel objected to its admission on the ground that it was immaterial to the issues. His objection was sustained. It is this ruling which is now before us.

According to the deposition testimony, Sheriff Brewer received a completed Department of Defense Form 553 which requested the apprehension of the accused as an unauthorized absentee. Acting on the request, he took the accused into custody on November 23 and confined him in the Blount County jail. Immediately thereafter he telephoned the “Army authorities” at Fort McPherson, Georgia. He was informed that the “military police would arrive within a few days to remove the accused.” On December 1 the accused was turned over to the military police.

Essentially, the question before us is whether Sheriff Brewer’s testimony is relevant to the period of the accused’s absence. The accused contends that the sheriff acted as an agent for the military in effecting his apprehension and that, as a result, his absence terminated on November 23. Conversely, the Government maintains that an unauthorized absence does not end until the absentee is in the actual physical custody of a member of the military forces. Both the Government and the accused rely upon a number of service rulings and decisions to support their respective contentions. See United States v Crocker, SF NCM 56-00904, July 27, 1956, 22 CMR —; United States v Mayer [CGCM 9761], 4 CMR 505; United States v Bovee [ACMS-999], 3 CMR (AF) 807. We need not attempt a synthesis of these authorities. Nor need we consider the pur- ported effect of Army Regulations on the accused’s pay and allowances because, as we said in United States v Coates, 2 USCMA 625, 629, 10 CMR 123, “whatever may be the duration of an absence for the purposes of the Bureau of Supplies and Accounts, the Bureau’s view is hardly conclusive of the question when raised in a punitive proceeding.”

In Kurtz v Moffitt, 115 US 487, 505, 29 L ed 458, 6 S Ct 148 (1885), the United States Supreme Court held that “a peace officer or a private citizen has no authority as such, and without the order or direction of a militai'y officer, to arrest or detain” military personnel for a violation of military law. Some years later the Congress conferred authority upon civil officers “to summarily arrest a deserter” and deliver him to the military authorities. Act of October 1, 1890, § 2, 26 Stat 648. In 'substantially the same language, the statute has been re-enacted as Article 8 of the Uniform Code, 10 USC § 808.

The accused vigorously contends that a civil officer acting in pursuance of this authority acts as an agent of the military. With equal vigor the Government maintains that a return to military control is not accomplished until the accused is physically in the hands of the military. If we were to accept the Government’s argument we would be compelled to conclude that the accused could be incarcerated for an indefinite and extended period without any possible relief. In other words, his release from confinement in the civilian jail would depend upon the whim of an administrative official. Confinement under such circumstances borders too closely on a denial of due process to be seriously considered. In any event, it is contrary to Congressional intent.

Congress has directed that there be no “unnecessary delay” in the disposition of a court-martial case. It has provided, for example, that if an accused is held for trial by a general court-martial and is in arrest or confinement, the charges should be referred to the general court-m'artial authorities within eight days of the imposition of restraint. Article 33, Uniform Code of Military Justice,TO USC § 833. It has also provided that it is an offense against the Uniform Code to'cause any “unnecessary delay” in the disposition of a case. Article 98, 10 USC § 898. It would do violence to these provisions to sanction a rule which permits a contrary result. Therefore, we reject the Government’s argument that only actual physical control over' the accused in a situation like that present terminates the accused’s absence and liability to punishment for that absence. See Manual for Courts-Martial, United States, 1951, paragraph 127c, Section A.

A second possible solution is that the military has a 'reasonable time after notification of the ac- cused’s apprehension within which to take control over him. The difficulty with applying this rule here is that the military’s continued inaction must be construed as “constructive authorization” for the accused’s continued absence. In a number of cases, however, we have pointed out that the military’s failure to pick up an unauthorized absentee, even though it knows of his whereabouts, does not change an unauthorized absence status into an authorized one, United States v Ferretti, 1 USCMA 323, 3 CMR 57; United States v Korzeniewski, 7 USCMA 314, 22 CMR 104. We must thus look to other principles.

Military control can be exercised directly by military personnel, or, for certain purposes, indirect- ly, by civilian officials acting for and on behalf of the Armed Forces, Reid v Covert, 351 US 487, 100 L ed 1352, 76 S Ct 880 (1956), rehearing granted on another ground 352 US 813, 1 L ed 2d 92, 77 S Ct 123. When the military authorities issued an apprehension order they, in effect, asked the civil authorities to detain the accused for them. A detention effected in accordance with such a notice is a detention on behalf of the military and under the authority granted by Congress for that purpose. In our opinion, it constitutes military control over the absentee for the purpose of terminating his absence. In fact, it would appear that resistance to the apprehension or escape from the custody of the civil authority is a violation of the Uniform Code, Article 95, 10 USC § 895. As the Judicial Council noted in United States v Henderson [ACM 1979], 2 CMR(AF) 390, 394, the military authorities cannot in such a situation “postpone, or preclude, an absentee’s return to military control by failing or refusing to take affirmative measures to control his person.” We conclude, therefore, that the law officer erred in excluding the deposition.

The findings of guilty of the unauthorized absence charge are set aside. The record of trial is returned to The Judge Advocate General of the United States Army for submission to a board of review. In its discretion the board of review may either order a rehearing on the unauthorized absence charge or affirm findings of guilty of an unauthorized absence of twenty-three days, as shown by the evidence, and reassess the sentence upon the basis of the approved findings of guilty of that offense and the larceny.

Judge Ferguson concurs.