United States v. Haagenson

19 C.M.A. 332, 19 USCMA 332, 41 C.M.R. 332, 1970 CMA LEXIS 920, 1970 WL 7342

• Court: United States Court of Military Appeals
• Decided: March 20, 1970
• Docket: No. 22,369
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

. This is an appeal from a conviction by special court-martial for a number of offenses in violation of the Uniform Code of Military Justice,

The first question for our consideration is whether the charges alleging the making and uttering of bad cheeks, under circumstances violative of Article 123a, Code, supra, 10 USC § 923a, were triable by court-martial. See O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969). We reviewed the question in United States v Peterson, 19 USCMA 319, 41 CMR 319 (1970). For the reasons specified in the opinion in that ease, we conclude the accused was properly tried for the checks in regard to which he identified himself as a member of the United States Navy by including his service number and, in some instances, his military organization, with his signature, as alleged in specifications 3, 4, 7, 8, 9,10,11, and 12, Charge III.¹ The checks set out in specifications 1, 2, 13, and 14, bear only the accused’s signature. These checks were issued to civilian business establishments in the civilian community and there is no evidence of a connection between the accused’s acts and the military; in these circumstances, the accused’s acts were not triable by court-martial. United States v Williams, 18 USCMA 605, 40 CMR 317 (1969).

Two purported deficiencies in the instructions in regard to the sentence are the basis for other assignments of error. In the first, appellate defense counsel contend that the president erred to the accused’s prejudice by instructing the court members that while the making and uttering of each check constituted a single offense for the purpose of punishment, the members could consider the uttering “offenses” as aggravating matter. See United States v Marine, 17 USCMA 460, 38 CMR 258 (1968); cf. United States v Posnick, 8 USCMA 201, 24 CMR 11 (1957). Whether description of the act of uttering as an “offense” in aggravation as distinguished from a “fact” in aggravation was error and, if error, whether it was prejudicial in light of the other instructions, need not detain us. Reversible error is apparent in the president’s failure to instruct the court members as to the procedure for voting on the sentence. United States v Johnson, 18 USCMA 436, 40 CMR 148 (1969); United States v Smith, 18 USCMA 607, 40 CMR 319 (1969).

The decision of the board of review is reversed. The findings of guilty of specifications 1, 2, 13, and 14, Charge III, are set aside and those specifications are ordered dismissed. The sentence is set aside, but a rehearing thereof may be ordered.

Judge DARDEN concurs.

1 Review was denied as to specifications 5 and 6, Charge III, because the acts were committed within the geographical area of the Naval Air Station, Millington, Tennessee. See United States v Williams, 18 USCMA 605, 40 CMR 317 (1969).