United States v. Shull

1 C.M.A. 177, 1 USCMA 177

• Court: United States Court of Military Appeals
• Decided: February 18, 1952
• Docket: No. 45
• Status: Published

Opinions

Opinion of the Court

Paul W. BROSMAn, Judge:

The petitioner, Shull, was tried by general court-martial at Fort Campbell, Kentucky, on May 8, 1951, and found guilty of absence without leave “with intent to shirk important service, to wit, shipment to the Far East Command,” in violation of Article of War 58, 10 USC § 1530. He was sentenced to receive a bad conduct discharge, to forfeit all pay and allowances to become due after the date of the order directing execution of the sentence, and to be.confined at hard labor for one year. The sentence was approved by the convening authority and affirmed by a board of review in the Office of The Judge Advocate General, United States Army. The accused requested this Court to review the conviction under the provisions of Article 67(b)(3), Uniform Code of Military Justice, 50 USC § 654. We granted his petition, limiting argument to the question of whether the evidence was sufficient to sustain a finding-of intent to shirk the important service alleged.

Such facts as are material to our decision in this case are set out immediately hereafter. Petitioner was a member of Company A, 511th Airborne Infantry Regiment, stationed at Fort Campbell, Kentucky. On March 5, 1951, he volunteered for overseas duty with the Far East Command. The first sergeant forwarded his name together with others through channels to regimental headquarters, and on the same day was informed that petitioner had been selected for the requested duty. At this time the first sergeant was told that Shull’s name would shortly appear on orders transferring him to the 11th Replacement Company. This notice was informally relayed to petitioner, who a day or so later applied to the commanding officer of Company A for a three-day pass. At that time he referred to the imminence of his departure from his old company, and stated that he wished the pass in order that he might visit his home to deal with a “family difficulty.” After informing the accused of the likelihood of immediate orders transferring him to the Replacement Company and warning him of the possible legal consequences of overstaying his pass, the company commander granted the request and issued a pass covering the period from 6:00 a. m., March 9, to 6:00 a. m., March 12. Subsequently, the accused departed for his home' in Decatur, Illinois. Thereafter the fpllowing events transpired in the sequence in which they are set out. On March 9 an official military order issued (dated March 8, 1951) transferring the accused to the 11th Airborne Replacement Company, Fort Campbell, Kentucky.- On March 11 the charge of quarters of the- accused’s company received a telephone call from a pei-son who identified himself as the accused during which it was stated that the latter would not be able to meet the return hour of his pass, but would rejoin his organization during the afternoon of the ■ terminal date, that is, March 12.- On March 13 or 14 a further order issued (dated March 12, 1951) transferring a quota of enlisted men from,the 11th Replacement Company to the Personnel Center, Camp Stoneman, California. The accused’s name did not appear on this order. On March 19 the contingent mentioned departed for Camp Stoneman. On March 22 the accused was apprehended at his home.by a Decatur, Illinois, civilian police officer.

In addition it should be reported that as a part of the government’s case the investigating officer was called to testify to the contents of an oral statement made by the accused during the course of investigation of the present charge, and characterized by the trial judge advocate as “closer to a confession” [than to an admission]. The substance of this language of the accused, as repeated by the prosecution’s witness, is set out below in toto:

“I cannot remember word for word, but, in substance, it amounted to this: that he did request a three-day pass of his company for the purpose of seeing his wife, with whom he was having difficulty; that he did receive a pass and went home to Decatur, Illinois; that upon the completion of his three-day pass he was without funds to return to his home station at Fort Campbell; and that he went to the Red Cross to request funds to return to his home station; that he did receive funds from the Red Cross on the 13th and, after receiving funds from the Red Cross, went to the bus . station, bought a ticket and later on the 13th, the same day, boarded a bus and started for Fort Campbell. On the way to Fort Campbell the .bus stopped at Evansville — and incidentally, at this point, if you don’t mind my interrupting, in the original statement the accused made to me the first time he said he got off the bus at Terre Haute, Indiana, but when I had the statement typed and brought back, he read it over and said no, it was not Terre Haute, it was Evansville, and I changed that. Going back to the statement, he said when the bus got to Evansville and stopped he got off the bus, called his wife, and asked if she intended going through with the divorce. She stated she did. He then hitch-hiked back home.”

On the basis of these facts the accused was found guilty of desertion by absenting himself without leave with intent to shirk important service. We are now asked to pass on the sufficiency of the evidence in this case to support the necessarily implied finding that the accused — at the reception of or during his established unauthorized absence — intended to avoid shipment to the Far East Command as alleged. In. our opinion it is not sufficient for the purpose.

Of course, the burden of proving the accused in this case guilty of the offense alleged beyond a reasonable doubt was on the government. In the language of the Manual for Courts-Martial, 1949, paragraph 41c:

“As to each offense charged, the burden is on the prosecution to prove beyond a reasonable doubt by relevant evidence that the offense was committed, that the accused committed it, that he had the requisite criminal intent at the time, and that the accused is within the jurisdiction of the court, except to the extent that such burden is relieved by a plea of guilty.” (Italics supplied)

Of course, too, a specific intent is an essential ingredient of the law violation attributed to the accused here. In this connection the Manual for Courts-Martial, 1949, has the following to say:

“In certain offenses, such as larceny, burglary and desertion, a specific intent is necessary. ... In those cases the specific intent or frame of mind may be established either by independent evidence, as, for example, words proved to have been used, by the offender, or by circumstantial evidence, as by inference from the act itself.” (par 140a) (Italics supplied)

Under the language of the specification under which he was tried, it was, therefore, incumbent on the government in this case to establish beyond a reasonable doubt by direct or circumstantial evidence that the accused through his absence without leave intended to avoid military assignment and transportation to the Far East Command for service in which command he had volunteered.

As we said in United States v. McCrary, (No. 4), 1 USCMA 1, 1 CMR 1, decided November 8, 1951:

“It is the cardinal rule of law that questions of fact are determined in forums of original jurisdiction or by those which are expressly granted the authority by constitution or statutes. Usually, appellate tribunals are limited to correction of errors of law. . . .

“There can be no question that the Congress of the United States intended to adopt this general rule and did not intend to extend review by this court to questions of fact.” (citing Uniform Code of Military Justice, Article 67(d))

It does not follow from the foregoing, however, that this Court is without authority to evaluate the. testimony and other evidence in this or any other case before it for the purpose of determining its sufficiency as a matter of law. Certain it is that rules having to do with reasonable doubt, necessity for the exclusion of every reasonable hypothesis save that of guilt, and the like, exist primarily for the guidance of trial forums. Certain it is, as well, however, that their administration by such agencies is not beyond the supervision of this Court, or by any other appropriate appellate tribunal. As we have said elsewhere, to' hold the converse would effectively deprive courts of review of any sort of direction and control over subordinate elements of the judicial scheme in an important area of law administration. See United States v. O’Neal, (No. 25), 1 USCMA 138, 2 CMR 44, decided February 7, 1952. Accordingly, while we are in no sense permitted to substitute our own judgment for that of the triers of fact, it is clearly allowable that we weigh the evidence for the limited purpose of testing for substance and determining the reasonableness as a matter of law of inferences drawn by the fact-finders. The following sentences used by us in United States v. O’Neal, supra, will doubtless aid in comprehending the standard we are applying to the case at bar:

“These cases [cited federal civilian cases] appear to establish fully the presence of substantial authority to the effect that if a reasonable inference other than that of guilt may be drawn from the evidence, a trial court should direct for the accused, and in a proper case an appellate court should reverse a conviction. The question now arises: the yardstick of whose judgment is to be applied in the solution of this problem? Or to put it somewhat differently, must we reverse if reasonable men cannot agree on the balance of hypotheses? Or are we required to sustain unless reasonable men would agree that a rational hypothesis other than that of guilt may be drawn from the evidence? Our answer to the inquiry’s first form is that our judgment, as such, is not the standard for application, but rather our conception of the judgment of reasonable men. And our response to its second is that we must not reverse unless' we believe that reasonable men would be in accord in holding that a rational hypothesis other than that of guilt may be drawn from the evidence. We regard these as manifestly the more rigorous standards, and for that very reason — and in these premises — the only proper ones.”

To phrase our position in more specific and in probably stronger terms, an accused may not be convicted on the basis of mere suspicion, conjecture, and speculation. United States v. O’Neal, supra. And where all the substantial evidence, within an appellate court’s conception of the fair operation of a reasonable mind, is as consistent with innocence as with guilt, it is its duty to reverse a judgment of conviction. Towbin v. United States, 93 F2d 861 (CA10th Cir). In 16 CJ 763-764 the rule is stated;

“In order to sustain a conviction on circumstantial evidence, all the circumstances proved must be consistent with each other, consistent with the hypothesis that accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt.”

Approaching the ease at bar, it should be observed that others who have dealt with its problem have sought elaborately and at length to delimit important from what may be characterized as ordinary service, and our attention has been directed to a number of cases and other authorities concerned principally with whether this or that variety of duty is to be regarded as “important” within the meaning of the Articles of War. This, we think, is quite beside the mark. We are not concerned here with whether artillery practice in Hawaii, field exercises in Oklahoma, transfer to a replacement pool or even movement to a staging area constitute important service. The specification here before us treats of a particular sort of service, and one which under any permissible interpretation of the term is important. Certainly — and this is amply supported by the military cases — foreign service during time of war or under emergency conditions and in or near a combat area is important service, and this is precisely what our specification alleges the accused intended to shirk. There is nothing whatever wrong or questionable in the charge sheet here: our problem wholly goes to the proof. Does the circumstantial evidence in this case support as a matter of law a finding that Shull intended to shirk transfer to the Far East Command? As we have already indicated, we think it does not.

In our view the actual physical, temporal, or administrative proximity of the accused to the service in question is not important in this type of case in any ultimate sense — that is a§ a matter of law. These elements only function as items of circumstantial evidence raising inferences of intent of varying degrees of compulsion. It is conceivable, at least, that an absence without leave from a port of embarkation might not have been effected with a subjective intent to avoid overseas duty. Likewise it is logically possible, we believe, for a military person to absent himself un-authorizedly with such an intent on the very first day of his training period — far removed in time, space, and competent orders from any threat of movement to a combat theater. What we have involved in these cases is simply a matter of proof — and that is exactly what we are faced with in the present case.

It is apparent from what has been said that we do not regard “shipment to the Far East Command” as having its measurable origin in the order transferring the accused to the 11th Replacement Company. Certainly this action placed him nearer service within that Command than he had been before; this cannot be disputed. But so did his own action in volunteering for such duty, his earlier assignment to Fort Campbell, and, indeed, his very act of military enlistment or induction. Considered in the light of usual practices, a number of distinct steps were actually contemplated in the instant case as parts of the eomplex procedure calculated to remove the accused from Company A at Fort Campbell and to place him aboard a transport bound for the Far East. The first of these was the transfer to the Airborne organization’s Replacement Company at Campbell; the second, a reassignment to Camp Stoneman, California, the staging area; the third, movement orders to a port of embarkation, probably San Francisco; and the fourth and final one, shipment to the Far East Command. We are sure that there must be a clearer channel than this to justify an interpretation of the Replacement Company transfer order as shipment to the Pacific. In this lane there are just too many possible turnings— simply too many ells and even tees in this leisurely and perhaps pervious pipeline.

It seems to us that we have demonstrated that the question of whether service in the 11th Replacement Company, as such, is important service is not before us, in that it is not the service which the specification alleges the accused intended to shirk. In addition we have" indicated that in our opinion the important service actually alleged therein — that is, shipment to the Far East Command — cannot properly be.regarded as having begun with the Replacement Company assignment order at Fort Campbell. It remains to inquire into the question of whether the unauthorized absence of the accused, accompanied by knowledge that an order reassigning him to the Replacement Company 'would probably issue during the period he was away from his station, constitutes the requisite substantial evidence of an intent to avoid shipment to an overseas theater necessary to' support the findings of guilty. We do not think that it does. On the evidence there is no serious doubt that at the time Shull overstayed his pass he knew, or had ample reason to believe, that he would shortly be placed on orders transferring him to the Airborne organization’s replacement pool. There is also no doubt in our minds that at the time in question he also knew, or had ample reason to believe, that he was ultimately destined for the Far East Command, and that at some uncertain future date he would doubtless be transferred from the pool at Campbell to some other organization from which in turn still other orders would move him ever nearer to shipment. He must have known of these latter probabilities, for he had volunteered for this duty, and he had been notified, however informally, that he had been selected for the assignment. Beyond these matters, however, he knew nothing. In the very nature of things he could have known nothing at the time of his departure on pass — for, according to the unanimous testimony of his immediate superiors, they themselves had no knowledge of details at that time and thus could have ⅛* parted no information to him.- Literally no one says he spoke to the accused of when or how he would leave the replacement pool or of where he would go from there, and there, is no showing that he had reason to know that by overstaying his pass he would be absent at the time of accomplishment of any step beyond his transfer to the 11th Replacement Company. It is certainly true that the petitioner’s commanding officer testified that earmarked contingents ordinarily cleared the pool within “ten days, two weeks, or so” after assignment thereto. However, the record contains no barest suggestion that even this vague and meager intelligence was communicated to Shull by any source. Beyond the transfer order to the 11th there is little to support the findings save suspicion, conjecture, and speculation. Certainly there is not that imminence of the important service alleged demanded by the soundest theory and the best considered military cases. Accordingly we hold that the inferences made by the fact-finders in the case at bar were not legally permissible ones.

In conclusion it should be said that we are not concerned directly or immediately at all with the accused’s alleged and probable domestic difficulties ,as such. Whether his intent in overstaying his pass on March 12 was to deal with them, or whether he had some other motive, is a question of fact, and if a court-martial on the basis of legally sufficient evidence had reached thé conclusion that he had some other intent — say one to shirk important service, for example — we could not properly disturb such a finding. What we are attempting to suggest at this point is merely that we do not mean to enunciate a rule necessarily requiring in such a situation that a court-martial conclude that an accused’s primary motive must have been to avoid the important service or the hazardous duty alleged. It is enough, we hold, that in a case of this nature a court-martial determine on the basis of substantial evidence that thg duty was imminent, and that as a consequence of his unauthorized absence the accused in fact avoided it or had reasonable cause to know that he would do so. Since one in the position of such an accused will be deemed to have intended the natural and probable consequences of his actions, we cannot in propriety complain if a court-martial regards primacy among motives as unimportant.

Applying the principles and discussion developed above to the specific question before us in this case, we are firmly of the opinion that the finding of intent to shirk the important service alleged must be set aside as based on insufficient evidence. This action is predicated on the position that the evidence before the court-martial did not permit a determination of the possession of such an intent on the part of the accused beyond a reasonable doubt and within the fair operation of reasonable minds. However, as found by the trial court on substantial evidence, the accused is guilty of an unauthorized absence of twelve days. Accordingly, the case is remanded to The Judge Advocate General, United States Army, for such corrective action as may be necessary.

Chief Judge Quinn concurs.