United States v. Tisdall

10 C.M.A. 553, 10 USCMA 553, 28 C.M.R. 119, 1959 CMA LEXIS 260, 1959 WL 3420

Opinions

Opinion of the Court

GeoRge W. Latimer, Judge:

We granted review of this case on a single instructional issue. Accused predicates his appeal from his conviction for desertion, a violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, on the same instruction we considered in United States v Simpson, 10 USCMA 543, 28 CMR 109; United States v Smith, 10 USCMA 549, 28 CMR 115; United States v Blackwell, 10 USCMA 550, 28 CMR 116; United States v Davault, 10 USCMA 551, 28 CMR 117; and United States v Shomler, 10 USCMA 555, 28 CMR 121. As we pointed out in those cases, decided this day, the law officer should not have given the questioned charge to the court. However, pretermitting the discussion of the compelling evidence rule, for the reasons set forth in those cases, we hold that accused was not prejudiced. The law officer repeatedly and correctly charged the members of the court on the rule of reasonable doubt, and the presumption of innocence and burden of proof. When the law officer’s instructions are considered in their entirety, there is no fair risk that the court-martial labored under a misapprehension that the burden of proof had been shifted. Clearly, the court-martial was provided the correct yardstick for use in its deliberations.

The decision of the board of review is, therefore, affirmed.

Chief Judge Quinn concurs.