United States v. Teal

United States Court of Military Appeals

United States v. Teal

3 C.M.A. 404, 3 USCMA 404, 12 C.M.R. 160, 1953 CMA LEXIS 659, 1953 WL 2200

CourtUnited States Court of Military Appeals

DecidedSeptember 18, 1953

DocketNo. 2767

StatusPublished

Cited by2 cases

This text of 3 C.M.A. 404 (United States v. Teal) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Teal, 3 C.M.A. 404, 3 USCMA 404, 12 C.M.R. 160, 1953 CMA LEXIS 659, 1953 WL 2200 (cma 1953).

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Opinion

Opinion of the Court

Per Curiam :

Accused has been convicted by general court-martial of absence without leave and breach of arrest, violations, respectively, of Articles 86 and 95, Uniform Code of Military Justice, 50 USC §§ 680, 689. Following affirmance by intermediate reviewing authorities, a petition of the accused for further review by this Court was granted to consider the matter hereafter set forth.

II

Accused’s single assignment of error relates only to his conviction of absence without leave. Our review does [405]*405not, therefore, touch upon his conviction for breach of arrest.

The inception and termination of the unauthorized absence charged were sought to be proved — as is usual in such cases — by appropriate extract copies of morning report entries. However, the extract copies introduced in evidence do not reflect the signature of the officer authenticating the original morning report entry. Under our decisions in United States v. Parlier, 1 USCMA 433, 4 CMR 25, decided June 13, 1952, United States v. William A. Collier, 1 USCMA 439, 4 CMR 31, decided June 13, 1952, and United States v. Howard S. Smith, 2 USCMA 121, 6 CMR 121, decided December 31, 1952, this was clearly error. Although there is, in this case, certain evidence aliunde the morning report entries tending to show an absence by the accused, that evidence is not sufficient, standing alone, to sustain the conviction. Therefore, the error tainting the extracts of morning report entries is prejudicial, requiring reversive action by this Court.

We should also note that defense counsel here expressly declined to register an objection to receipt in evidence of these morning report extracts. However, in view of the posture of the evidence, we cannot attach to this failure of counsel the significance of a binding waiver. United States v. Howard S. Smith, supra.

Accordingly, the conviction of accused for absence without leave is reversed and a rehearing ordered.

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Opinion of the Court

Per Curiam :

Accused has been convicted by general court-martial of absence without leave and breach of arrest, violations, respectively, of Articles 86 and 95, Uniform Code of Military Justice, 50 USC §§ 680, 689. Following affirmance by intermediate reviewing authorities, a petition of the accused for further review by this Court was granted to consider the matter hereafter set forth.

II

Accused’s single assignment of error relates only to his conviction of absence without leave. Our review does [405]*405not, therefore, touch upon his conviction for breach of arrest.

The inception and termination of the unauthorized absence charged were sought to be proved — as is usual in such cases — by appropriate extract copies of morning report entries. However, the extract copies introduced in evidence do not reflect the signature of the officer authenticating the original morning report entry. Under our decisions in United States v. Parlier, 1 USCMA 433, 4 CMR 25, decided June 13, 1952, United States v. William A. Collier, 1 USCMA 439, 4 CMR 31, decided June 13, 1952, and United States v. Howard S. Smith, 2 USCMA 121, 6 CMR 121, decided December 31, 1952, this was clearly error. Although there is, in this case, certain evidence aliunde the morning report entries tending to show an absence by the accused, that evidence is not sufficient, standing alone, to sustain the conviction. Therefore, the error tainting the extracts of morning report entries is prejudicial, requiring reversive action by this Court.

We should also note that defense counsel here expressly declined to register an objection to receipt in evidence of these morning report extracts. However, in view of the posture of the evidence, we cannot attach to this failure of counsel the significance of a binding waiver. United States v. Howard S. Smith, supra.

Accordingly, the conviction of accused for absence without leave is reversed and a rehearing ordered.

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Bluebook (online)

3 C.M.A. 404, 3 USCMA 404, 12 C.M.R. 160, 1953 CMA LEXIS 659, 1953 WL 2200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-teal-cma-1953.

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