Opinion of the Court
ROBERT E. Quinn, Chief Judge:
Basic Airman Clarence Holiday, the accused, was convicted of three separate offenses of failing to obey lawful orders in violation of Article 92, Uniform Code of Military Justice, 50 USC § 686; assault upon an Air Policeman in the execution of his duties; and communicating a threat to an Air Policeman, both in violation of Article 134 of the Code, supra, 50 USC § 728. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for five years and six months. The convening authority reduced the period of confinement to three years, but otherwise approved the findings and sentence. Following affirmance by a board of review, we granted the accused’s petition for further review to consider whether the accused communicated a threat, and whether the communication of a threat constitutes a violation of Article 134 of the Code, supra.
Since we are concerned here only with the offense of communicating a threat, the circumstances of the other crimes are immaterial and will not be considered.
The evidence presented to the court-martial shows that the accused, a prisoner. in an Air Force Stockade, had possession of playing cards — a violation of stockade regulations. When this infraction was reported to the supervisors of the confinement facility, Airman Sat-kunas, an Air Policeman, was directed to enforce the regulation by securing the prohibited cards. Upon his arrival at the cell block in which the accused [456]*456was confined, he demanded the contraband items. The accused at first denied that he had any playing cards, but when he was brought from his cell to be searched, he drew the cards from his pocket and proceeded to destroy them. Considering the incident closed, Sat-kunas ordered the accused to return to his cell. However, the accused failed to comply with this order and Satkunas found it necessary to lead him back after obtaining a firm grasp on his arm. At this the accused declared “If I’m not walking fast enough for you, don’t push me or I’ll knock your . . . teeth down your throat.”
Upon these facts, the accused was charged with a violation of Article 134, supra, in a specification which alleges that he,
“. . . did . . . wrongfully communicate to Airman Second Class Bronius Satkunas ... a person then having and in the execution of Air Police duties, a threat to injure the aforesaid Airman Second Class Bronius Satkunas, by saying to him, the said Airman Second Class Broni-us Satkunas, ‘I’ll knock your . . . teeth down your throat.’ ”
These allegations, the accused contends, do not describe an offense under Article 134, supra, and are insufficient to set out an offense under any other Article of the Code. This contention is predicated upon the theory that communicating a threat constitutes a crime only when combined with other circumstances such as those contemplated by Articles 89, 91, 127, and 128 of the Code, supra.1
Article 134, supra, proscribes three general types of misconduct: (a) Disorders and neglects to the prejudice of good order and discipline, (b) Conduct of a nature to bring discredit upon the armed forces, and (c) Crimes and offenses not capital. The offense with which we are here concerned occurred within the confines of an Air Force stockade and is not alleged as a violation of a specific enactment of Congress. Therefore, we need not consider its possible relationship to the second and third classes of offenses included in the Article. We are concerned here only with the first category of offenses set out in the relevant article.
The history of this Article and its full meaning and limitations have been the subject of numerous decisions of this Court and no further exposition thereof is now necessary. Suffice it to say that the Article contemplates only the punishment of that type of misconduct which is directly and palpably — as distinguished from indirectly and remotely — prejudicial to good order and discipline. United States v. Snyder, 1 USCMA 423, 4 CMR 15; United States v. Herndon, 1 USCMA 461, 4 CMR 53; United States v. Frantz, 2 USCMA 161, 7 CMR 37.
As used in both military and civilian law, the term “threat” connotes:
“An avowed present determination or intent to injure presently or in the future.” [United States v. Metzdorf, 252 Fed 933 (Mont); United States v. Sturmer, 1 USCMA 17, 1 CMR 17.]
At common law, simple threats, unaccompanied by an intent thereby to influence the action of the person threatened, did not constitute a crime. The potential harm presaged by such utterances, however, was clearly recognized, and one guilty of such conduct was required to furnish surety conditioned on his future peaceful behavior. United States v. Metzdorf, supra. An appreciation of the evil portents of this action is also reflected in modern legislation. See Code of District of Columbia, Title 22, Section 507.2
No specific provision is made in the Uniform Code, supra, for the offense of simple threats, but the Manual for Courts-Martial, United States, 1951, contains two references thereto. The first is found in the Table of Maximum [457]*457Punishments, paragraph 127c, providing a penalty of dishonorable discharge, total forfeitures, and confinement at hard labor for three years for the offense of “threats, communicating.” The second reference is found in Appendix 6c thereof, in which a recommended form of specification of this offense is set out. That form is as follows:
“171. In that .... did, (at) (on board) . . ., on or about.19. ., wrongfully communicate to .... a threat to (injure .... by .. ..) (accuse .... of having committed the offense of ....) (....).”
The recommended form contains no reference to any intent to influence the action of the person threatened. So, we conclude that it contemplates a simple threat situation. The specification in the instant case sets out each material allegation of this form and adds aver-ments indicating that the threats were directed to an Air Policeman then in the execution of his duties. The additional allegations do not change the gist of the offense, however. They merely describe circumstances of aggravation supplying a reasonable basis for the imposition of a more severe sentence. See United States v. Beene, 4 USCMA 177, 15 CMR 177.
Applying the test delineated in previous decisions of this Court, we find, in the communication of a threat to any person in the military establishment, direct and palpable prejudice to good order and discipline of the armed forces. Such conduct, if committed in the civilian community, might result in a criminal proceeding in which the guilty party would be required to furnish bond, or be imprisoned, in default thereof. Obviously no such sanction is put upon innocent actions. In the military service, the communication of a threat to injure another is certainly no less serious. However, it cannot be treated in the manner generally provided for in the civilian sphere, for no procedure is available to the services for requiring one subject to the Code to post a bond. The only course open to a military commander is the invocation of the punitive sanctions provided by Article 134, supra. Moreover, many factors indicate that this offense is relatively more serious when committed by one subject to the Code.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
ROBERT E. Quinn, Chief Judge:
Basic Airman Clarence Holiday, the accused, was convicted of three separate offenses of failing to obey lawful orders in violation of Article 92, Uniform Code of Military Justice, 50 USC § 686; assault upon an Air Policeman in the execution of his duties; and communicating a threat to an Air Policeman, both in violation of Article 134 of the Code, supra, 50 USC § 728. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for five years and six months. The convening authority reduced the period of confinement to three years, but otherwise approved the findings and sentence. Following affirmance by a board of review, we granted the accused’s petition for further review to consider whether the accused communicated a threat, and whether the communication of a threat constitutes a violation of Article 134 of the Code, supra.
Since we are concerned here only with the offense of communicating a threat, the circumstances of the other crimes are immaterial and will not be considered.
The evidence presented to the court-martial shows that the accused, a prisoner. in an Air Force Stockade, had possession of playing cards — a violation of stockade regulations. When this infraction was reported to the supervisors of the confinement facility, Airman Sat-kunas, an Air Policeman, was directed to enforce the regulation by securing the prohibited cards. Upon his arrival at the cell block in which the accused [456]*456was confined, he demanded the contraband items. The accused at first denied that he had any playing cards, but when he was brought from his cell to be searched, he drew the cards from his pocket and proceeded to destroy them. Considering the incident closed, Sat-kunas ordered the accused to return to his cell. However, the accused failed to comply with this order and Satkunas found it necessary to lead him back after obtaining a firm grasp on his arm. At this the accused declared “If I’m not walking fast enough for you, don’t push me or I’ll knock your . . . teeth down your throat.”
Upon these facts, the accused was charged with a violation of Article 134, supra, in a specification which alleges that he,
“. . . did . . . wrongfully communicate to Airman Second Class Bronius Satkunas ... a person then having and in the execution of Air Police duties, a threat to injure the aforesaid Airman Second Class Bronius Satkunas, by saying to him, the said Airman Second Class Broni-us Satkunas, ‘I’ll knock your . . . teeth down your throat.’ ”
These allegations, the accused contends, do not describe an offense under Article 134, supra, and are insufficient to set out an offense under any other Article of the Code. This contention is predicated upon the theory that communicating a threat constitutes a crime only when combined with other circumstances such as those contemplated by Articles 89, 91, 127, and 128 of the Code, supra.1
Article 134, supra, proscribes three general types of misconduct: (a) Disorders and neglects to the prejudice of good order and discipline, (b) Conduct of a nature to bring discredit upon the armed forces, and (c) Crimes and offenses not capital. The offense with which we are here concerned occurred within the confines of an Air Force stockade and is not alleged as a violation of a specific enactment of Congress. Therefore, we need not consider its possible relationship to the second and third classes of offenses included in the Article. We are concerned here only with the first category of offenses set out in the relevant article.
The history of this Article and its full meaning and limitations have been the subject of numerous decisions of this Court and no further exposition thereof is now necessary. Suffice it to say that the Article contemplates only the punishment of that type of misconduct which is directly and palpably — as distinguished from indirectly and remotely — prejudicial to good order and discipline. United States v. Snyder, 1 USCMA 423, 4 CMR 15; United States v. Herndon, 1 USCMA 461, 4 CMR 53; United States v. Frantz, 2 USCMA 161, 7 CMR 37.
As used in both military and civilian law, the term “threat” connotes:
“An avowed present determination or intent to injure presently or in the future.” [United States v. Metzdorf, 252 Fed 933 (Mont); United States v. Sturmer, 1 USCMA 17, 1 CMR 17.]
At common law, simple threats, unaccompanied by an intent thereby to influence the action of the person threatened, did not constitute a crime. The potential harm presaged by such utterances, however, was clearly recognized, and one guilty of such conduct was required to furnish surety conditioned on his future peaceful behavior. United States v. Metzdorf, supra. An appreciation of the evil portents of this action is also reflected in modern legislation. See Code of District of Columbia, Title 22, Section 507.2
No specific provision is made in the Uniform Code, supra, for the offense of simple threats, but the Manual for Courts-Martial, United States, 1951, contains two references thereto. The first is found in the Table of Maximum [457]*457Punishments, paragraph 127c, providing a penalty of dishonorable discharge, total forfeitures, and confinement at hard labor for three years for the offense of “threats, communicating.” The second reference is found in Appendix 6c thereof, in which a recommended form of specification of this offense is set out. That form is as follows:
“171. In that .... did, (at) (on board) . . ., on or about.19. ., wrongfully communicate to .... a threat to (injure .... by .. ..) (accuse .... of having committed the offense of ....) (....).”
The recommended form contains no reference to any intent to influence the action of the person threatened. So, we conclude that it contemplates a simple threat situation. The specification in the instant case sets out each material allegation of this form and adds aver-ments indicating that the threats were directed to an Air Policeman then in the execution of his duties. The additional allegations do not change the gist of the offense, however. They merely describe circumstances of aggravation supplying a reasonable basis for the imposition of a more severe sentence. See United States v. Beene, 4 USCMA 177, 15 CMR 177.
Applying the test delineated in previous decisions of this Court, we find, in the communication of a threat to any person in the military establishment, direct and palpable prejudice to good order and discipline of the armed forces. Such conduct, if committed in the civilian community, might result in a criminal proceeding in which the guilty party would be required to furnish bond, or be imprisoned, in default thereof. Obviously no such sanction is put upon innocent actions. In the military service, the communication of a threat to injure another is certainly no less serious. However, it cannot be treated in the manner generally provided for in the civilian sphere, for no procedure is available to the services for requiring one subject to the Code to post a bond. The only course open to a military commander is the invocation of the punitive sanctions provided by Article 134, supra. Moreover, many factors indicate that this offense is relatively more serious when committed by one subject to the Code. An executed threat to harm an officer constitutes a violation of Article 90, supra, and bears a maximum penalty of dishonorable discharge, total forfeitures, and' confinement at hard labor for ten years. If committed in time of war, the death penalty may be imposed. Executing a threat against a warrant officer involves a penalty of confinement for five years, with the usual accessories. In the case of a noncommissioned officer, or person in the exercise of law enforcement duties, the prescribed penalty is confinement for one year with the usual accessories. However, if carried out against the person of one not occupying a special office, and not involving elements of aggravation arising out of either the means employed, or the results produced, the penalty is limited to confinement for six months, and a partial forfeiture for a like period. It is evident that the elimination of the threat which precedes the assault in such cases, effectively eliminates the assault itself. Thus, it is clear that the provision for a maximum penalty in simple threat cases, in some instances less than might be imposed for executed assault and greater in others, is designed to prevent such threats regardless of the class of individuals against whom directed. We find no abuse of discretion in establishing this penalty.
Concluding that the offense alleged possesses the characteristics of the misconduct described in the first subdivision of Article 134, supra, we turn to consider the second branch of the defense argument. In support of its position, the defense relies upon the following language of this Court, in United States v. Norris, 2 USCMA 236, 8 CMR 36:
“It is our view that, in accordance with the remarks of Professor Morgan, quoted earlier, Article 134 should generally be limited to military offenses and those crimes not specifically delineated by the punitive Articles. ... As the Manual itself notes, there is scarcely an irregular or improper act conceivable which may not be regarded as in some [458]*458indirect or remote sense prejudicing military discipline under Article 134, Manual for Courts-Martial, United States, 1951, page 381. We cannot grant to the services unlimited authority to eliminate vital elements from common law crimes and offenses expressly defined by Congress and permit the remaining elements to be punished as an offense under Article 134.”
Citing the action taken in the Norris case, supra, and in United States v. Johnson, 3 USCMA 174, 11 CMR 174, the accused urges upon us the theory that all aspects of threats were included within Articles 89, 91, 127, and 128, supra.
Articles 89 and 91(3) prohibit disrespect toward a superior officer or toward a warrant officer, noncommis-sioned officer, or petty officer while in the execution of his office. Unquestionably, threatening such an individual is per se disrespect. United States v. Richardson, 2 USCMA 88, 6 CMR 88. However, maintaining respect for a certain class of persons is not the sole objective of requiring punishment for threats. A principal purpose of such punishment is to maintain order in the military community and to prevent outbreaks of violence therein.
Article 127, supra, refers to the offense of extortion and requires that the communication of a threat be accompanied by an intention to obtain something of value or any acquittance, advantage, or immunity of some description. As noted above, there is no necessity for establishing a motivation for a “simple threat.”
Article 128 refers to assaults. The distinguishing feature of these offenses is an overt act committed in pursuance of an attempt or offer to do bodily harm to another. United States v. Norton, 1 USCMA 411, 4 CMR 3. The Manual’s discussion of these offenses clearly indicates that in the military, as well as in the civil law, mere threatening language does not constitute the offense described in this Article. Manual for Courts-Martial, United States, 1951, paragraph 207a. In the case of a threat, however, the offense is complete when the avowed determination to injure another is announced.
Our attention has also been directed to the provisions of Article 117 of the Code, supra, 50 USC § 711, penalizing the use of provocative speeches and gestures. This Article is designed to prevent the use of violence by the person to whom such speeches and gestures are directed, and to forestall the commission of an offense by an otherwise innocent party. The communication of a threat, however, forecasts violent action by the person employing it. Thus, the prevention of greater harm, by the guilty person, is the purpose of its punishment.
In its concluding argument the defense urges that if an accused were to preface an actual assault and battery with a threat to commit that offense then he could be subjected to a far greater penalty. Numerous other instances of disparity between the penalty for the completed offense and that threatened are suggested to us. This disparity, it is contended, reduces the Government’s position here to an absurdity and conclusively demonstrates the necessity for applying the Norris and Johnson view to this case. This argument completely overlooks two vital considerations. First, the President, in accordance with his authority in such matters, has prescribed the applicable maximum for communication of a threat. As indicated above, we find no abuse of discretion in his exercise of that authority in this instance. Secondly, the responsibility for the imposition of a specific sentence in a particular case rests primarily upon the court-martial. United States v. Brasher, 2 USCMA 50, 6 CMR 50. The specific penalty assessed by the court-martial must, in every case, be legal, appropriate, and adequate, and should be arrived at only after mature consideration of all relevant circumstances. Manual for Courts-Martial, United States, 1951, paragraph 76. Courts are further enjoined by paragraph 127c of the Manual, supra, to restrict imposition of the greatest permissible punishment to cases involving aggravating circumstances sufficient to justify such severity. Should the sentence adjudged by [459]*459the trial court appear inappropriate under the circumstances disclosed by the record of trial, the board of review is empowered by Article 66(e) of the Code, supra, 50 USC § 653, to reduce it to a sentence which is appropriate, in fact. Should these safeguards prove inadequate and a grossly excessive sentence is affirmed by a board of review, then this Court may be called upon to determine its power to set it aside. Beyond that, however, any argument designed to demonstrate the disparity between prescribed maximum penalties is more aptly directed to the Executive than to the Judicial Branch of the Government.
For the foregoing reasons, Articles 89, 91, 117, 127, and 128, supra, were not designed by Congress to deal with the type of accusation before us here. Therefore, such cases as United States v. Norris, supra, and United States v. Johnson, supra, are hardly applicable. Since communicating a threat is not otherwise provided for in the Uniform Code, it is properly alleged as a viola-, tion of Article 134, supra.
We turn now to a consideration of the final issue in this case, to wit, whether the language of the accused constitutes a threat. Determination of this issue requires but brief consideration. The accused was taken from his cell for a single legitimate purpose. When that purpose was effected, his only proper place was in his cell. Upon his refusal to return to it, the Air Policeman was justified in using reasonable force to return him to his place of confinement. Although the prefatory statement “Don’t push me” implies a condition, it does not negative a present determination to injure. The condition, if any, was one the accused had no right to impose. See United States v. Stickrath, 242 F 151 (SD Ohio); United States v. Jasick, 252 F 931 (ED Mich); United States v. Metzdorf, supra.
The decision of the board of review is affirmed.
Judge LatimeR concurs.