United States v. Muckelrath

11 C.M.A. 179, 11 USCMA 179, 28 C.M.R. 403, 1960 CMA LEXIS 351, 1960 WL 4445

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

Two issues are presented by this appeal. The first pertains to the sufficiency of the evidence to support the finding of an intent to deceive in regard to the issuance of a series of checks which the accused judicially conceded he dishonorably failed to pay. Suffice it to say, we have examined the evidence and we are satisfied that it supports the findings of guilty.

The second claim of error pertains to the post-trial review. In discussing the facts in issue, the staff judge advocate noted that the accused, according to his own testimony, was “guilty of gross negligence.” He then went on to say: “Such negligence, . . . supports the court’s findings of guilty, including the findings of an intent to deceive in each instance.” Other parts of the discussion indicate an awareness of the difference between an intent to deceive in the issuance of a check and dishonor in nonpayment on its presentment. Gross negligence cannot establish the intent, but it can show dishonor. United States v Stratton, 11 USCMA 152, 28 CMR 376. However, it is doubtful whether the distinction was made sufficiently clear in the discussion so as not to be misunderstood by the convening authority. Necessarily, our doubts must be resolved in favor of the accused.

The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General for resubmission to the board of review. In its discretion, the board of review can affirm, in accordance with the accused’s plea of guilty, findings of guilty of dishonorable failure to maintain sufficient funds for payment of the checks alleged in specifications 4, 5, 6, and 9 through 14, and reassess the sentence, or return the record of trial to the convening authority for further proceedings consistent with this opinion.

Judge FERGUSON concurs.