United States v. Grant

11 C.M.A. 728, 11 USCMA 728, 29 C.M.R. 544, 1960 CMA LEXIS 233, 1960 WL 4553

• Court: United States Court of Military Appeals
• Decided: July 29, 1960
• Docket: No. 14,229
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

Upon the basis of his pleas of .guilty, a special court-martial convicted the accused of absence without leave and wrongful possession of an armed forces identification card, violations of Articles 86 and 134, Uniform Code of Military Justice, 10 USC §§ 886, 934, respectively.

The following occurred during trial counsel’s cross-examination of a petty •officer who had testified favorably to the accused in extenuation and mitigation :

“Q. Hughes, when were you last at Captain’s Mast?

“A. In May, I believe, sir.

“Q. What was the offense?

“A. Three hours and twenty minutes AWOL.

“Q. Were you not drunk in a public place? Were you not also •charged with that?

“A. Under the circumstances of that, sir, I was slipped a mickey.

“Q. What was the sentence of the Commanding Officer?

“A. Ten days restriction.

“Q. When did you appear at Captain’s Mast previous to that?

“A. April, I think.

“Q. What was the charge?

“A. Assault.

“Q. What was your sentence?

“A. Three days confinement.”

Neither offense referred to by the witness involves moral turpitude, nor does it otherwise affect the witness’ credibility. Since this cross-examination improperly impeached a principal defense witness, prejudice is manifest. United States v Gibson, 5 USCMA 699, 18 CMR 323.

We further note that the trial counsel’s argument upon the sentence was prejudicially erroneous. United States v Crutcher, 11 USCMA 483, 29 CMR 299. The petition for review is granted and the decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Navy. A rehearing upon the sentence may be ordered.

Judge Ferguson concurs.