United States v. Hazard

8 C.M.A. 530, 8 USCMA 530, 25 C.M.R. 34, 1957 CMA LEXIS 290, 1957 WL 4644

• Court: United States Court of Military Appeals
• Decided: December 27, 1957
• Docket: No. 9713
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

This appeal brings up for review certain alleged errors in regard to one of two charges of which the accused was convicted. The charge is wrongfully communicating a threat, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934.

The accused was a prisoner in the post stockade. During an area cleaning assignment outside the stockade he gave the guard some difficulty. The guard reported the matter to the work detail sergeant. Later as the work party was mounting a truck to return to the stockade, the accused said to the guard, “I’d better not catch you outside.”

At the trial the the law officer instructed the court-martial on the elements of the offense as follows:

“The court is further advised that to find the accused guilty of the Specification of Charge II and Charge II, it must be satisfied by the evidence before the court, beyond a reasonable doubt:

(1) That at the time and place alleged the accused, without justification or excuse, wrongfully communicated to Private Ted K. Reece, a threat, to wit: ‘I’d better not catch you outside’;

(2) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces, or was of a nature to bring discredit upon the armed forces.

The term ‘communicated to’ means to make known to.

The term ‘threat’ means a declaration of one’s purpose or intention to do an act which is wrongful.” [Emphasis supplied.]

The defense counsel submitted several requests to instruct. Of these, one was to the effect that the court-martial must find that the threat was “an avowed present determination or intent to injure in the present or future by intentionally inflicting grievous bodily harm.” A second was for an instruction that the court-martial could consider the lesser offense of using provoking speech in violation of Article 117 of the Code, 10 USC § 917, if it had a reasonable doubt as to the accused’s guilt of the principal offense. Both were denied. However, as to the former, the law officer offered to give the instruction, with the exception of the clause “by intentionally inflicting grievous bodily harm.” Defense counsel refused to accept the modification, and after further colloquy, withdrew his request.

On this appeal the accused contends that the italicized part of the law officer’s instruction is erroneous because it defines the word “threat” as a decía-ration of one’s intention “to do an act which is wrongful” rather than as an intention “to injure presently or in the future.” See United States v Davis, 2 USCMA 505, 10 CMR 3; United States v Sturmer, 1 USCMA 17, 1 CMR 17.¹ For its part, the Government contends that even if the law officer’s definition is not as complete as it might have been, the defense counsel waived the deficiency by his actions.

In the view which we take of the case, we need not reach the claim of error in regard to the instructions on the principal offense. The law officer’s refusal to .instruct as requested, as to the lesser offense of provoking speech, was clearly error.

¡ The words used by the accused could easily evoke from the guard an invitation to assume that the parties were already “outside” and that the accused should proceed with the avowed declaration. Clearly then the words had at least a tendency “to induce ... [a breach] of the peace.” Manual for Courts-Martial, United States, 1951, paragraph 196, page 351. The lesser offense, therefore, was in issue and should have been submitted to the court-martial for its consideration. United States v Wilson, 7 USCMA 713, 23 CMR 177.

I The decision of the board of review as to Charge II and the sentence is reversed. The record of trial is returned to The Judge Advocate General of the Army for resubmission to a board of review. In its discretion, the board of review can affirm findings of guilty of the lesser offense of provoking speech and reassess the sentence, or order a rehearing on Charge II and the sentence.

Judge FERGUSON concurs.

1 It is also arguable that the language of subdivision (1) of the instructions can be construed as a direction to the court-martial that the words used by the accused constitute a threat as a matter of law, rather than a direction to the court-martial that it must itself find a threat. See United States v Castel, NCM 56-02747, November 7, 1956, and cases cited; United States v Hyatt, 8 USCMA 67, 23 CMR 291; United States v Pennell, 144 F Supp 317 (ND Cal) (1956).