United States v. Stanford

8 C.M.A. 726, 8 USCMA 726, 25 C.M.R. 230, 1958 CMA LEXIS 679, 1958 WL 3122

Opinions

Opinion of the Court

HomeR FERGUSON, Judge:

The accused, charged with desertion, terminated by apprehension, pleaded not guilty but guilty of the lesser offense of absence without leave. The court-martial, however, found him guilty as charged. Before this Court he assigned as error the law officer’s instruction dealing with the question of intent and in particular that portion which advised that:

“. . . an intent may reasonably be inferred, such as evidence of a much prolonged period of absence without authority for which there is no satisfactory explanation, . . .”

This instruction is indistinguishable from the one held prejudicial in United States v Soccio, 8 USCMA 477, 24 CMR 287.

The decision of the board of review is reversed and the record returned to The Judge Advocate General of the Army for resubmission to a board of review. The board, in its discretion, may affirm the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the principal charge.

Chief Judge Quinn concurs.