United States v. Sumrel

8 C.M.A. 399, 8 USCMA 399, 24 C.M.R. 209, 1957 CMA LEXIS 349, 1957 WL 4743

• Court: United States Court of Military Appeals
• Decided: November 8, 1957
• Docket: No. 10,482
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge;

In spite of his plea of not guilty, the accused was convicted of desertion for an unauthorized absence of five months germinated by surrender. The law officer, over defense objection, instructed the court that: “if the condition of ■absence without proper authority is much prolonged and there is no satisfactory- explanation of it, the court will be justified in inferring from that alone an intent to remain absent permanently.” Substantially the same instruction has been held prejudicially erroneous in United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Burgess, 8 USCMA 168, 23 CMR 387. For the reasons expressed in those opinions, the accused’s conviction must be reversed. The record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, approve the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.