United States v. King

5 C.M.A. 3, 5 USCMA 3, 17 C.M.R. 3, 1954 CMA LEXIS 420, 1954 WL 2577

• Court: United States Court of Military Appeals
• Decided: October 8, 1954
• Docket: No. 948
• Status: Published

Opinions

Opinion of the Court

Paul W. BROSMAN, Judge:

This is an appeal from a judgment of conviction following a rehearing. The accused was originally found guilty, by a general court-martial convened in Korea, of cowardly conduct in the presence of the enemy- — -in that he wrongfully refused to report to his battle station, in violation of Article 99, Uniform Code of Military Justice, 50 USC § 693. He was sentenced to receive a dishonorable discharge, as well as to total forfeitures and confinement at hard labor for fifteen years. Later we reversed that conviction and ordered a rehearing — for the reason that the law officer failed to instruct that fear was a necessary element of the offense charged. See United States v. King, 2 USCMA 397, 9 CMR 27.

On rehearing of the cause at Camp Gordon, Georgia, on June 9, 1953, King was again found guilty of the same offense and sentenced to be dishonorably discharged, to total forfeitures, and to confinement at hard labor for ten years. The convening authority reduced the period of confinement to five years, but otherwise affirmed the findings and sentence. Subsequently, a board of review in the office of The Judge Advocate General, United States Army — deeming the evidence insufficient to sustain a finding that the accused’s action was motivated by fear — modified the findings to the following effect: “that the accused did, at the time and place alleged, in the presence of the enemy wrongfully refuse to go to his defensive position on Hill 355, in violation of Article 134 of the Uniform Code of Military Justice.” The sentence, as modified by the convening authority, was found to be appropriate and affirmed. We granted accused’s petition for review to consider the following issues:

(1) Did the law officer err in failing to give an instruction, sua sponte, on physical incapacity?

(2) Was the action of the board of review in finding a lesser included offense under Article 134 legally correct?

II

During the month of December 1951, the accused was a member of “D” Company, 17th Infantry Regiment, was stationed in Korea, and was assigned as an ammunition bearer to a machine gun squad. This squad was attached to “A” Company, which at the time in question occupied a defensive position on Hill 355, located on the main line of resistance some 1500 to 1700 yards from enemy installations. The hill had been subjected to intermittent artillery and mortar fire. On the morning of December 1 the accused was released from a battalion aid station, where for some five days he had been receiving treatment for frostbitten feet. On being discharged and directed to return to his organization, he “hitchhiked” the approximately six miles to his company area, and reported to the first sergeant in the vicinity of the unit’s command post. The sergeant directed him to return to his position on the hill, and— when the accused refused to comply— reported the matter to the platoon commander.

The platoon commander, a Lieutenant Warr, testified in person at the retrial and stated that, on being informed of the incident, he ordered the accused to report to him at the command post; that, when the latter appeared, he directed him to return to his organization; and that he again refused to do so, stating that he was aware of the consequences. The Lieutenant noticed nothing unusual in the accused’s physical condition or demeanor. A Captain Coffin, commanding officer of “D” Company, was then summoned and, when the situation was explained to him, gave the accused a direct order to return to his squad. According to the former’s stipulated testimony, the accused replied, “I cannot go back and I realize the consequences.” The accused persisted in this attitude, although the consequences of his refusal were, fully explained to him by the company commander. Thereafter, he was placed under arrest.

Having declined to take the stand at the original trial, the accused did so at the rehearing and testified substantially as follows: Sometime before December 1, 1951, he reported to the company aid station for treatment of his foot condition, and was directed to the battalion collecting aid station, where he remained under treatment for approximately five days. On that day he was released and informed by the medical officer that he should return to his unit. After returning to his company area, he reported to the first sergeant immediately, and was ordered to rejoin his squad. He informed the sergeant that he could not comply with the order because he had just returned from the aid station where he had been treated for frostbitten feet, and that he was not capable of going to his position. When the same command was given him by the company commander, he replied that he could not comply for the reason that his feet were paining him — that he was sick and physically unable to return to the hill. After being confined in the division stockade, the accused continued to receive treatment for the same condition, which thereafter improved more or less steadily. Notwithstanding this, he spent most of this period lying on his cot with his feet exposed to the air in accordance with medical instructions. Because of this disability it was necessary for others to bring his meals to him — for the mess hall was approximately one mile away, and to have traversed that distance he would have been required to walk clumsily on his heels. He stated that at his original trial his defense counsel would not permit him to take the stand for the purpose of testifying in his own behalf.

In addition to the accused’s testimony, the defense introduced medical evidence to the effect that on or about October 29, 1952 — some eleven months after the commission of the present offense — the accused reported for sick call at Camp Gordon, Georgia, and informed the examining physician that he had suffered from frostbitten feet in Korea. Although the latter found no specific symptoms of that malady, he did discover that there were substantial calluses on the accused’s feet which “go hand in hand” with frostbite. This physician testified that a special low-quarter shoe had been prescribed for the accused’s use instead of the usual boots. The Government called no rebuttal witnesses.

Ill

Relying on our decision in United States v. Heims, 3 USCMA 418, 12 CMR 174, appellate defense counsel contend that this evidence served fairly to raise the issue of physical incapacity, and that the law officer erred in failing to furnish the court-martial with an instruction embracing this aspect of the defense. In the Heims case we held that where the evidence reasonably raises the question of whether an accused is physically capable of obeying the order of a superior officer, it is prejudicial error for the law officer to fail to instruct on the issue sua sponte. We laid down the principle there that, when a military person relies on physical incapacity as a defense, he must act reasonably, and the balance of his judgment in this particular must be demonstrated clearly by the record. During the course of the opinion, we observed:

“. . . Whether one may — in law and fact — be physically unable to comply with an order will vary somewhat, we believe, with the pressing nature of the circumstances involved. In view of this essential element of reasonableness, it seems impossible to formulate a general rule for application to all cases. Perforce each must rest largely on the conclusions of the triers of fact, reached after a consideration of all the evidence presented, together with the realities of the situation as evaluated by rational military persons, and against a background of the transaction’s total setting. Because of the stern necessity for preserving discipline in the armed services, the proper application of this test of moderation must include not merely the question of whether the accused, under all of the circumstances, acted reasonably, but in addition, whether the balance of his judgment in the premises was clearly demonstrable — only a difference in degree perhaps, but a selective and important one.”

By means of this language, it is clear that we intended to place an accused under a somewhat heavier burden as to “reasonableness” in raising the issue of physical incapacity than that demanded generally to render a sua sponte instruction obligatory on the part of the law officer. In United States v. Heims, supra, the accused was charged with willful disobedience of the lawful order of a superior noncommissioned officer. Some eight days before the issuance of the order there in question, the accused had sustained an injury to his hand when a shell exploded while he was cleaning a machine gun. He received first aid on the day of the wound and periodical treatment thereafter until the date of the alleged violation. The order given by his sergeant required that he tie sandbags for the construction of a bunker — an assignment involving some degree of manual dexterity and precision. There was medical testimony dealing with the extent of the accused’s injury and its effect on his ability to use his hand — -and particularly his fingers. The accused testified that he was unable physically to perform the task. Essentially that case posed two questions. The first was whether the accused had received an injury; the second whether the record demonstrated clearly the reasonableness of his view that he was thereby prevented from complying with the order. There we answered both questions in the affirmative, and we believe that similar responses are required in the case at bar.

At the outset we observe that the fact of injury cannot be questioned. Lieutenant Warr testified that the accused had returned from hospitalization on the very morning in question, and the latter stated that he had been treated for frostbite for the five days immediately preceding that on which he had received the several directions from his superiors. There is no evidence of any nature tending to negate the existence of the physical disorder which the accused contends demanded his refusal to obey. We therefore address our inquiry to the issue of whether the record sufficiently demonstrates that the accused was thereby rendered incapable of complying with the order in question.

The accused testified that when he first experienced difficulty with his feet, he reported to the company aid station behind his defensive position at the base of Hill 355. Because his injury was thought to be too severe for proper treatment by the attendants at this medical post, he was dispatched to the battalion collecting station at the rear. There he was provided with medication for some five days before being released for duty. He then returned to the company command post. When ordered to go to his unit, he “told the First Sergeant that I can’t go back up on the Hill . . . and I told him that I had just arrived from the aid station for frozen feet and I wasn’t able to go back up.” According to his undisputed testimony, he assigned substantially the same reasons to his company commander when ordered by the latter to rejoin his squad. Following his imprisonment in the division stockade, he “had considerable trouble” with his feet and again reported for sick call two days after his arrival there. The medical officer at the stockade told him to soak his feet and to keep them exposed as much as possible, for they “were in very bad shápe.” His sojourn in the stockade thereafter is described in the accused’s words:

“. . . I stayed there on my bed —cot there in the stockade — and I stayed there for a period of about three weeks on my back like that, and I couldn’t walk, and they just had to bring my food to me. Else, if I had to go to chow, I had to walk on the back of my heels like this. Something like a mile to chow from the stockade.”

It is not without significance that there is an absence of direct evidence in the record tending to show that the accused engaged in walking to any appreciable extent following his release from the battalion aid station. “Hitchhiking” back to the company area certainly involved little pedal effort, and there is nothing to show that at any time he walked to the mess hall for his meals after arriving at the stockade. Indeed, his testimony is distinctly to the contrary. Some corroboration for his claim of physical incapacity appears in the stipulated testimony of the company commander who stated that, when ordered to return to the hill, the accused replied, “I cannot go back.” (Emphasis supplied.) Moreover, on cross-examination, Lieutenant Warr testified that he could not recall the accused’s exact words of refusal, and that it was possible that the latter had said he could not return to his position. Further corroboration is found in the testimony of the medical officer who examined the accused at Camp Gordon. In view of the accused’s testimony that he had experienced no other difficulty with his feet, it would not have been unreasonable for the members of the court to have concluded that the presence of calluses, sufficiently disabling to require the medical prescription of special shoes eleven months after an alleged case of severe frostbite, constituted a residual manifestation of that very disorder.

In light of these circumstances, we are of the opinion that the defense of physical incapacity was reasonably raised by the evidence. As we stated in the Heims case, supra:

“. . . Accused’s testimony — and especially as corroborated, even in part — was sufficient indeed to raise squarely the issue of physical incapacity. United States v. Simmons, 1 USCMA 691, 5 CMR 119, decided September 26, 1952. His story was not inherently improbable certainly, and the fact that there was contradictory evidence did not destroy its evidentiary value.”

In this connection it must be remembered that, unlike the court-martial, we are not concerned with the credibility of witnesses nor the weight to be accorded their testimony. Rather — in view of the principle enunciated in the Heims case — we are required to determine whether, as a matter of law, the balance of the accused’s judgment with respect to physical incapacity was sufficiently demonstrated by the record as to raise that defense. On the whole we are inclined to the view that it was. True it is that the instant situation falls peripherally, rather than centrally, within the ambit of Heims. Nevertheless that decision must be deemed to control. It follows that the law officer’s instructional failure constituted prejudicial error necessitating reversal.

IV

Mindful of the protracted history of this case, we shall comment on the second issue — despite our re- versive action with respect to the first. Recently we have held that the offense of cowardly conduct, alleged under Article 99 of the Uniform Code of Military Justice, cannot — through the deletion of the element of fear — be reduced to an offense violative of Article 134. United States v. Hallett, 4 USCMA 378, 15 CMR 378; United States v. Hamilton, 4 USCMA 383, 15 CMR 383. Therefore, at a rehearing the charge should not be laid under the latter Article. At the same time, we are inclined to believe that, within the rationale of Hallett and Hamilton, supra, the findings, as modified by the board of review, may fall within the purview of Article 86, 50 USC § 680.

In the interests of clarity, however, and to avoid further difficulty with the case, we believe that any retrial which may be held should be based on charges drafted expressly to fall within Article 90, 50 USC § 684, as alleging King’s disobedience of the order from superior authority to go to his defensive position. The disobedience of this order — if illegal disobedience there was — constituted the essence of any wrongfulness in the refusal to go. Upon such retrial, the maximum sentence would come to five years’ confinement at hard labor— with credit for confinement under previous sentences.

V

The issue of the accused's veracity can be determined on the retrial of this case under proper instruc- tions — as well as on the basis of the findings on any charges the Government may later choose to bring under Article 131 of the Code, supra, 50 USC § 725. However, we are not justified in proclaiming that, in the ease at bar and as a matter of law, the accused could not be believed under oath. In itself, his testimony is not inherently incredible, nor was it shown to be contrary to any of the physical facts. The sole issue before us has to do with the sufficiency of the testimony to raise an issue requiring instruction. As to that issue, we must hold that the record contains evidence sufficient to raise reasonably the matter of physical incapacity. Cf. United States v. Lamerand, 4 USCMA 702, 16 CMR 276. Therefore, the case is remanded to The Judge Advocate General, United States Army, for disposition in accordance with this opinion.

Chief Judge Quinn concurs.