United States v. Morris

8 C.M.A. 755, 8 USCMA 755, 25 C.M.R. 259, 1958 CMA LEXIS 671, 1958 WL 3136

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

Upon reviewing the evidence pertaining to one of the two offenses of which the accused was convicted, the staff judge advocate advised the convening authority as follows: “There is sufficient evidence in the record to sustain the findings of guilty of wrongful possession of marihuana, and in the absence of an indication of a manifest injustice, these findings should be approved.” The standard prescribed is not that by which the convening authority must measure his review. United States v Grice, 8 USCMA 166, 23 CMR 390; United States v Johnson, 8 USCMA 173, 23 CMR 397. However, it is contended that in the discussion of the other offense, the staff judge advocate applied correct rules of law; and consequently, we should assume that, in the context of the whole advice, the convening authority was not misled. Of course, if considered as a whole, the review is not misleading, isolated inaccuracies may be disregarded. But that situation does not obtain here. The offenses were considered separately. The error in the discussion of one was not cured by anything said in the discussion of the other.

From our reading of the entire review, and with due regard for judicial precedent, we conclude that justice to the accused requires that we return the record of trial to The Judge Advocate General of the Air Force for reference to a competent convening authority for further proceedings in accordance with Articles 61 and 64, Uniform Code of Military Justice, 10 USC §§ 861, 864. It is so ordered.

Judge Ferguson concurs.