United States v. Lightfoot

7 C.M.A. 686, 7 USCMA 686, 23 C.M.R. 150, 1957 CMA LEXIS 513, 1957 WL 4450

• Court: United States Court of Military Appeals
• Decided: April 5, 1957
• Docket: No. 9362
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

A divided board of review held that several of the specifications of which the accused was convicted did not state an offense under the Uniform Code. Pursuant to the provisions of Article 67(b) (2), 10 USC § 867, The Judge Advocate General of the Air Force requested this Court to consider whether the board of review was correct in its conclusion.

In material part, each of the specifications in issue reads as follows: “. . . [the accused] did . . . with intent to deceive . . . make and utter to ... a certain check . . . then not intending to have sufficient funds in . . . [the bank] available to meet payment . . . upon its presentment for payment in due course.” Strikingly absent from the specification is an allegation that thereafter the accused wrongfully and dishonorably failed to place or maintain sufficient funds in the bank for payment of the check upon presentment for payment. See Manual for Courts-Martial, United States, 1951, Appendix 6c, specification 129, page 489.

Recently we had occasion to review the history of “bad check” offenses in military law. United States v Downard, 6 USCMA 538, 20 CMR 254. The review convinced us that military law embraces only “two worthless check offenses and no others.” Ibid, page 544.

We described these offenses as follows :

“. . . (1) The making and uttering of such a paper wrongfully and unlawfully, with intent to deceive, and thereafter wrongfully and dishonorably failing to maintain such funds to meet it. (2) The making and uttering of a check, without intent to deceive, and thereafter wrongfully and dishonorably failing to maintain a sufficient balance.” [Page 541.]

Manifestly, the allegations of the specification do not directly, or by necessary implication, spell out either of the above offenses. The omission is fatal. United States v Fout, 3 USCMA 565, 13 CMR 121.

The certified question is answered in the affirmative, and the decision of the board of review is affirmed.

Judge Ferguson concurs.