United States v. Oakley

11 C.M.A. 187, 11 USCMA 187, 29 C.M.R. 3, 1960 CMA LEXIS 343, 1960 WL 4450

• Court: United States Court of Military Appeals
• Decided: January 29, 1960
• Docket: No. 13,211
• Status: Published

Opinions

Opinion of the Court

George W. Latimer, Júdge:

The accused stands before this Court convicted of stealing $688 which is the difference between the money given him by a finance office to pay members of a unit, and the sum of the amount he disbursed and that which he returned to finance after making the pay. Instead of returning the overage to the responsible officer, accused appropriated the money to his own use. On his first trial he was convicted and sentenced to dishonorable discharge, total forfeitures, and confinement for six months. The convening authority approved the sentence but suspended the execution of the punitive discharge until accused’s release from confinement or completion of appellate review, whichever was later. A board of review set aside the findings and sentence and ordered a rehearing. The accused was convicted and sentenced a second time but subsequently a board of review set aside those findings and the sentence. At his third trial, the accused was again found guilty, but this time the sentence did not include confinement, for it was limited to a dishonorable discharge and total forfeitures. The convening authority approved the findings and sentence but suspended the execution of the punitive discharge pending completion of appellate review, and deferred application of the forfeitures until the sentence is ordered into execution. A board of review affirmed, and thereafter we granted accused’s petition for review to consider an instruction on insanity and to determine whether he was entitled to a suspension of the punitive discharge.

Because of developments subsequent to our order granting review, the last mentioned issue is moot. It is not disputed by the parties that on September 16, 1969, General Court-Martial Order Number 160 was issued by Headquarters, First United States Army, which vacated the action suspending the dishonorable discharge. This order shows that the vacation was pursuant to Article 72 of the Uniform Code of Military Justice, 10 USC § 872. Therefore, it appears the Army considered the accused to be a true probationer, afforded him a chance for rehabilitation, which apparently he bungled, and held a hearing before revoking the suspension. Such being the case, we need not consider the legal effect of any convening authority’s action suspending execution of the discharge.

The other issue requires us to consider the instructions on insanity. The facts giving rise to this question are these. An expert in the'field of psychiatry testified that accused was not mentally responsible for the larceny because, even though he could distinguish right from wrong, he could not adhere to the right. This witness used the irresistible impulse test and concluded that, because of his mental condition, the accused could not resist the temptation to steal. The Government produced evidence to the contrary, including accused’s previous military and civilian records which indicated he was perfectly sane. After fully instructing the court-martial on the formulae to support a finding of mental responsibility, the law officer completed his charge by stating:

“The accused is presumed to be sane at the time of the alleged offense. This presumption remains in effect until, from the evidence, a reasonable doubt of his sanity at the time in question appears. When, however, as in this case, substantial evidence tending to prove that the accused was insane at the time of the alleged offense is introduced, the sanity of the accused is an essential issue of fact.

“In determining the question of the sanity of the accused, you are-entitled to consider his sanity in the light of your common sense and your general knowledge of human nature- and the ordinary affairs of life. Thus'you may consider that the general experience of mankind is that most, people are sane. This general experience may be taken into account in weighing the evidence pertaining to the issue of the accused’s sanity. The burden of proving the sanity of the accused beyond a reasonable doubt, like every other fact necessary to establish the offense alleged, is upon the prosecution.

“If, in the light of all the evidence- and taking into consideration your general knowledge of human nature and the ordinary affairs of life, you have a reasonable doubt as to the-mental responsibility of the accused at the time of the alleged offense, you-must find the accused Not Guilty of that offense.”

It is accused’s contention that that portion of the law officer’s instruction which refers to the presumption of sanity incorrectly stated the law and prejudicially affected the substantial rights of the accused. We conclude to the contrary and, in so doing, need not pause to consider whether the first part of the advice is legally correct, for when all of the instructions on the subject are considered collectively, we find no prejudice. Viewed as a whole, the charge is so worded that whether sanity is a true presumption as asserted by the Government or a mere administrative device affecting the duty of producing evidence of the presumed fact, as contended for by the accused, is immaterial because the law officer did not permit the court-martial to give weight to the presumption of sanity when deliberating on the findings. True it is that in the first two sentences of the quoted instruction he mentioned the presumption, but he immediately eliminated it from consideration by informing the court there was substantial evidence tending to prove the accused was insane and that, under those circumstances, sanity was a disputed question of fact which had to be determined from the evidence. He then informed the court members about some matters they might consider in connection with their findings on that issue and concluded his instructions on this aspect of the case by stating the burden of proving the sanity of the accused beyond a reasonable doubt was upon the prosecution and if the court members had a reasonable doubt as to the sanity of the accused at the time of the alleged offense, they must necessarily find him not guilty.

Stated somewhat differently, the first portion of the advice on sanity may have been unnecessary, but that is not to say it announces an incorrect rule of law, for there is respectable authority to support the principle that sanity may be presumed. See United States v Biesak, 3 USCMA 714, 14 CMR 132, and Judge Ferguson’s concurring opinion in the case at bar. But there is little use in involving a court-martial with that doctrine when it is instructed to base its findings on the facts. Assuming, without deciding, that in this particular instance the court-martial members chose not to believe the expert who asserted the accused could not resist the temptation to steal, they were not faced with relying on the presumption of sanity, for there was testimony that accused was sane. In this connection, it is worth noting that the instruction did not inform the court the presumption could be regarded as evidence. Cf. Biesak, supra. In effect, this court was told the presumption had vanished because there was evidence of insanity and that facts were the touchstone to guide them in their deliberations. Accordingly, if the instructions were not correct, they were favorable to the accused, and he is in no position to complain.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.