Opinion of the Court
GEORGE W. Latimer, Judge:
While the accused, who weighed 220 pounds, was incarcerated in a post stockade serving a court-martial sentence, he engaged in an altercation with a fellow-prisoner who was some 75 pounds lighter. The blow which did the damage was struck when the victim had turned his head aside to hear the comments of another prisoner, and the force was sufficient to break the victim’s jaw and chip several of his teeth. On the next day, accused was placed in disciplinary segregation for an indefinite period not to exceed fourteen days. Later during that period of segregation, he assaulted a superior non-commissioned officer in the execution of his duties and subsequently treated him with contempt and disrespect. Thereafter he was tried on all three offenses with the first mentioned crime alleged as an assault whereby grievous bodily harm was intentionally inflicted, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928. The other two offenses were laid under Article 91 of the Code, 10 USC § 891, but because the assignment of error does not reach them they are only incidentally involved on this appeal.
At the time of trial, defense counsel sought to bar trial of the last two enumerated offenses on the theory that accused had been punished for those crimes. He relied on United States v Williams, 10 USCMA 615, 28 CMR 181, where we held disciplinary punishment in confinement for minor offenses to be a bar. His hypothesis was that the administrative segregation was administered for those acts charged under Article 91; that assaulting and contemptuously treating a noncommis-sioned officer in the execution of his duty were minor offenses; and that if the accused was convicted and sentenced for those crimes, he would be subject to double punishment. The evidence showed that disciplinary punishment was imposed for the assault on the inmate, and that rendered the motion inappropriate as to the subsequent offenses. However, no bar to the first assault charge was ever asserted at trial, and this in spite of the fact that the court returned a finding of the lesser included crime of assault and battery. As a consequence of the findings on all three specifications, the accused was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for one year. Intermediate appellate agencies affirmed the findings and sentence, and we granted review to determine whether the punishment for accused’s conviction for assault upon the inmate was barred by his prior disciplinary segregation.
The board of review considered the alleged error but concluded the accused could not raise the issue on appeal because it was not asserted at the trial. We do not disagree with the reasoning of the board of review on the question of waiver, but we prefer to reach and decide a more fundamental question and that is, whether an assault consummated by a battery can be a serious offense.
Article 15(e) of the Code, 10 USC § 815, provides:
“The imposition and enforcement of disciplinary punishment under [676] this article for any act or omission is not a bar to trial by court-martial for a serious crime or offense'growing out of the same act. or omission, and not properly' punishable under this article; but the fact that a disciplinary punishment has been enforced may.be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to- be adjudged in the event of a finding of guilty.”
In defining and illustrating a minor offense, paragraph 1286 of the Manual for Courts-Martial, United States, 1951, states:
“Minor offenses. — Whether an offense may be considered ‘minor’ depends upon its nature, the time and place of its commission, and the person committing it. Generally speaking the term includes misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court-martial. An offense for which the punitive article authorizes the death penalty or for which confinement for one year or more is authorized is not a minor offense. Offenses such as larceny, forgery, maiming, and the like involve moral turpitude and are not to be treated as minor. Escape from confinement, willful disobedience of a noncommissioned officer or petty officer, and protracted absence without leave are offenses which are more serious than the average offense tried by summary courts-martial and should not ordinarily be treated as minor.”
In United States v Williams, supra, Judge Ferguson, speaking for the Court, restated the principle in this language:
“The argument that the accused’s offense was not minor need not long detain us. The Table of Maximum Punishments, Manual, supra, paragraph 127c, authorizes the imposition for this misconduct of a penalty not to exceed confinement at hard labor for three months and forfeiture of two-thirds pay for a like period. In discussing the same concept with relation to the exercise of non judicial powers under Article 15, Code, supra, 10 USC § 815, the Manual, supra, in paragraph 1286, points out that the term generally includes misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court-martial. These considerations, as well as the attendant circumstances, persuade us that the accused’s delict was not so serious as the Government contends and, thus, was properly punishable by disciplinary action under Article 18, Code, supra.”
See also United States v Vaughan, 3 USCMA 121, 11 CMR 121, and United States v Fretwell, 11 USCMA 377, 29 CMR 193.
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Opinion of the Court
GEORGE W. Latimer, Judge:
While the accused, who weighed 220 pounds, was incarcerated in a post stockade serving a court-martial sentence, he engaged in an altercation with a fellow-prisoner who was some 75 pounds lighter. The blow which did the damage was struck when the victim had turned his head aside to hear the comments of another prisoner, and the force was sufficient to break the victim’s jaw and chip several of his teeth. On the next day, accused was placed in disciplinary segregation for an indefinite period not to exceed fourteen days. Later during that period of segregation, he assaulted a superior non-commissioned officer in the execution of his duties and subsequently treated him with contempt and disrespect. Thereafter he was tried on all three offenses with the first mentioned crime alleged as an assault whereby grievous bodily harm was intentionally inflicted, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928. The other two offenses were laid under Article 91 of the Code, 10 USC § 891, but because the assignment of error does not reach them they are only incidentally involved on this appeal.
At the time of trial, defense counsel sought to bar trial of the last two enumerated offenses on the theory that accused had been punished for those crimes. He relied on United States v Williams, 10 USCMA 615, 28 CMR 181, where we held disciplinary punishment in confinement for minor offenses to be a bar. His hypothesis was that the administrative segregation was administered for those acts charged under Article 91; that assaulting and contemptuously treating a noncommis-sioned officer in the execution of his duty were minor offenses; and that if the accused was convicted and sentenced for those crimes, he would be subject to double punishment. The evidence showed that disciplinary punishment was imposed for the assault on the inmate, and that rendered the motion inappropriate as to the subsequent offenses. However, no bar to the first assault charge was ever asserted at trial, and this in spite of the fact that the court returned a finding of the lesser included crime of assault and battery. As a consequence of the findings on all three specifications, the accused was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for one year. Intermediate appellate agencies affirmed the findings and sentence, and we granted review to determine whether the punishment for accused’s conviction for assault upon the inmate was barred by his prior disciplinary segregation.
The board of review considered the alleged error but concluded the accused could not raise the issue on appeal because it was not asserted at the trial. We do not disagree with the reasoning of the board of review on the question of waiver, but we prefer to reach and decide a more fundamental question and that is, whether an assault consummated by a battery can be a serious offense.
Article 15(e) of the Code, 10 USC § 815, provides:
“The imposition and enforcement of disciplinary punishment under [676] this article for any act or omission is not a bar to trial by court-martial for a serious crime or offense'growing out of the same act. or omission, and not properly' punishable under this article; but the fact that a disciplinary punishment has been enforced may.be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to- be adjudged in the event of a finding of guilty.”
In defining and illustrating a minor offense, paragraph 1286 of the Manual for Courts-Martial, United States, 1951, states:
“Minor offenses. — Whether an offense may be considered ‘minor’ depends upon its nature, the time and place of its commission, and the person committing it. Generally speaking the term includes misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court-martial. An offense for which the punitive article authorizes the death penalty or for which confinement for one year or more is authorized is not a minor offense. Offenses such as larceny, forgery, maiming, and the like involve moral turpitude and are not to be treated as minor. Escape from confinement, willful disobedience of a noncommissioned officer or petty officer, and protracted absence without leave are offenses which are more serious than the average offense tried by summary courts-martial and should not ordinarily be treated as minor.”
In United States v Williams, supra, Judge Ferguson, speaking for the Court, restated the principle in this language:
“The argument that the accused’s offense was not minor need not long detain us. The Table of Maximum Punishments, Manual, supra, paragraph 127c, authorizes the imposition for this misconduct of a penalty not to exceed confinement at hard labor for three months and forfeiture of two-thirds pay for a like period. In discussing the same concept with relation to the exercise of non judicial powers under Article 15, Code, supra, 10 USC § 815, the Manual, supra, in paragraph 1286, points out that the term generally includes misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court-martial. These considerations, as well as the attendant circumstances, persuade us that the accused’s delict was not so serious as the Government contends and, thus, was properly punishable by disciplinary action under Article 18, Code, supra.”
See also United States v Vaughan, 3 USCMA 121, 11 CMR 121, and United States v Fretwell, 11 USCMA 377, 29 CMR 193.
From all of the foregoing, it is made clear there are numerous factors which may be used to determine whether an offense is minor. Using some of the measuring rods, such as severity of maximum sentence imposable, would lead to the conclusion that an assault and battery might be in that class. Using other of the mentioned yardsticks, including the offenses ordinarily tried by summary courts-martial, inevitably leads to a finding that it is serious. The net of all the factors and the statements in the foregoing authorities brings into focus the salutary rule that all the attending facts and circumstances of the crime must be considered in making an appropriate determination of whether it is inferior in importance in the military criminal field. When the nature, time and place of commission of this offense are considered together with the injuries inflicted and the potential for harm to the maintenance of good order and discipline in the service, it is readily apparent that it was not minor in nature. It was alleged as an aggravated assault and the facts justified that charge. The place of the assault, the relative size of the accused and the victim, and the physical damages inflicted on the latter point to an aggravated crime with a direct and marked impact on military discipline. It hardly seems consonant with logic and reason to hold that when [677] an accused brutally assaults another inmate, breaks his jaw and splinters his teeth with a result that the bones must be wired in place, that a petty crime only is involved. On the contrary, we believe a beating such as the one reflected by this record presents a serious offense and one which should carry a substantial sentence within the Table of Maximum Punishments. It is to be remembered that the seriousness of crimes is usually measured by the facts and circumstances and not simply by arbitrary limits of maximum punishment. A precise dividing line drawn by civilian misdemeanors and felonies is impractical and inexpedient in the military for there are other influences and penalties which must be taken into consideration. By way of illustration, a battery may consist of a mere touching, or it may be bottomed upon a severe beating. The former is of a minor nature but not so with the latter although the maximum punishment imposable is the same. Accordingly, to say that all batteries are minor merely because of the punishment ceiling is to disregard the obvious and pay too much attention to only one of a number of factors.
It is contended that because the court-martial found the accused guilty of a lesser offense than the one alleged, we cannot go behind that finding. We believe that assertion is inapposite because we are not detracting one iota from the full faith and credit of the finding. A close analysis of our position will make it apparent we are not seeking to establish that the accused committed an offense greater than assault and battery. All we are saying is that the gamut of that crime is from petty and trifling injuries inflicted by force to those of serious consequences, and that the facts of this case place it on the upper rung of the ladder. In that connection, it is to be noted there is no dispute concerning the nature, type, or gravity of the injuries inflicted on the victim and the finding of the court-martial in no way negates their seriousness. Accordingly, we are at liberty to assess them as they are established by the evidence.
For the foregoing reasons, we find the findings and sentence correct in law and the decision of the board of review is, therefore, affirmed.
Chief Judge Quinn concurs.