United States v. Higgins

6 C.M.A. 308, 6 USCMA 308, 20 C.M.R. 24, 1955 CMA LEXIS 295, 1955 WL 3534
CourtUnited States Court of Military Appeals
DecidedSeptember 2, 1955
DocketNo. 6216
StatusPublished
Cited by21 cases

This text of 6 C.M.A. 308 (United States v. Higgins) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Higgins, 6 C.M.A. 308, 6 USCMA 308, 20 C.M.R. 24, 1955 CMA LEXIS 295, 1955 WL 3534 (cma 1955).

Opinion

Opinion of the Court

Paul W. Brosman, Judge:

A general court-martial sitting at an overseas Naval station found that the accused had stolen $4,171.87 from the United States Government, and had falsified certain balances and public records — in violation respectively of Articles 121 and 134 of the Uniform Code of Military Justice, 50 USC §§ 715, 728. The sentence adjudged ran to dishonorable discharge, total forfeitures, five years’ confinement at hard labor, and reduction in rating to seaman recruit— but the members of the court which tried the case attached a recommendation of clemency. The convening authority approved the findings, but reduced the period of confinement imposed to three years. In turn a board of review in the office of The Judge Advocate General, United States Navy, affirmed.

On the accused’s petition, we granted review to consider assignments of error involving (1) the admissibility of certain statements made by the accused, (2) the instructions supplied by the law officer with respect thereto, and (3) the reception in evidence of a document abstracted from the purse of the accused’s wife.

II

The operations of the office of the Naval Attache in Tripoli were administered by three Americans — a Commander Smith, the Naval Attache; the accused, Higgins; and the latter’s wife, who was a Federal civilian employee. Commander Smith appears to have concerned himself primarily with intelligence work, and only slightly with the day-by-day functions of the office. Higgins served as “office manager” and, together with his many other duties, handled routine disbursements. And Mrs. Higgins performed secretarial [312]*312work chiefly, although her responsibilities appear to have expanded gradually because of a heavy office workload.

Certain delays and delinquencies in the submission of required reports dealing with financial matters during August of 1953 induced the dispatch to Tripoli of Lieutenant Commander Robert W. Maiden, an officer with considerable supply and disbursing experience. Maiden, who was permanently assigned to the office of the Naval Attache in Rome, was directed to conduct an inspection of Commander Smith’s office in Tripoli. He had scarcely begun his investigations when he discovered that the accused was in possession of some, $100.00 which came from a confidential “C and Cl fund” retained by Commander Smith within a sealed envelope and a locked safe — to which repository, however, Higgins held the combination. Maiden initiated a discussion of this situation with the accused in the presence of Commander Smith — but Higgins requested that he be allowed to speak privately with Maiden in another room. Smith later testified that, during this first meeting, the accused had been warned that he “need not say anything that would be against your interests” — whereupon the latter replied that he was entirely willing to answer questions and “straighten the whole matter out.”

Commander Maiden, however, was unsure that he had warned Higgins before the two had retired to an adjoining room. According to this officer’s testimony, he had informed the accused, when they were alone together, that he considered the latter’s possession of the money to be a very serious thing; that Higgins “didn’t have to tell me anything more unless he wanted to”; and that “if he did tell me anything . . . I, in my capacity as inspecting officer, was duty bound to report it.” When trial counsel sought to elicit from the witness the content of the accused’s remarks during that interview, the defense objected strenuously on the ground that Article 31(6) of the Uniform Code, 50 USC § 602, had not been complied with.

As the accused’s trial postdated the mentioned interview by some eight months, Commander Maiden was allowed to refresh his recollection by means of an examination of certain testimony he had given much earlier before a Board of Investigation. See Manual for Courts-Martial, United States, 1951, paragraph 146a. This action resulted in positive testimony to the effect that he had informed Higgins that the taking of the sum was a serious matter; that it appeared that it had been illegal; and that — while it would assist Maiden if the accused were to disclose what had been done with the money — the latter was not required to speak at all, but that “if he did tell me anything it would be used against him.” Testifying in opposition to the reception in evidence of his oral statements to Maiden, the accused denied that the inspecting officer had informed him that he was under no duty to make a statement. The accused conceded, however, that Maiden had indicated that, as an auditing officer, it would be necessary^ that he report all matters communicated to him officially.

After noting that the point at issue had to do with the sufficiency of the warning, the law officer found that the accused had been safely advised — and permitted Maiden to testify to the accused’s remarks made during their private conversation. At this same time, the law officer furnished the court-martial with an instruction the content of which forms the basis for an assignment of error — although it was not the subject of objection at the trial, either by the Naval lawyer or the civilian attorney, both of whom represented Higgins there.

The accused’s explanation ran to the effect that he had done no more than use the sum in question to settle a bill for the purchase of cigarettes and other stores for Commander Smith and himself. His position was that there had simply been an overburden of work, and that all resultant delinquencies could be explained and remedied with ease. At this stage of his inquiry Commander Maiden appears to have had no real suspicion that funds in any substantial amount were missing; but the outlines of a darker picture began to appear as [313]*313he dug into the records of the office. Since Higgins had mentioned that he possessed documents which would account for certain apparent shortages, Maiden then — according to his testimony — informed the accused that, unless those papers were produced, it would appear that a very serious situation was present. However, he distinctly recalled commenting to Higgins that, although it would aid in the investigation to obtain this information from him, he was not required to produce it. And the inspector felt reasonably sure that once more he told the accused that anything he said could later be used against him.

Indeed, the inspecting officer stated that he had told Higgins “dozens or more times” that whatever comment he made could, if desired, be used against him. His caution in this particular arose from the circumstance that the accused seemed upset and repeatedly volunteered information — so much so that it seemed fair to Maiden to explain to Higgins again and again that he was under no slightest compulsion to report the matters revealed. One Taylor, who had accompanied the Commander to Tripoli, stated that some three or four days after their arrival he overheard the latter inform the accused that he was not required to say anything unless he chose to do so. Also, Commander Smith recited that on August 16th or 17th, a few days after Maiden had met Higgins, the accused had informed Smith that, although he did not mind rendering assistance in clearing matters up, he could not be expected to say or do anything which would tend to incriminate him. Apparently this conversation preceded the occasion on which Maiden claimed he had inquired of the accused about the production of documents relevant to the developing shortage, and had again warned him of his right to remain silent.

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Cite This Page — Counsel Stack

Bluebook (online)
6 C.M.A. 308, 6 USCMA 308, 20 C.M.R. 24, 1955 CMA LEXIS 295, 1955 WL 3534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-higgins-cma-1955.