United States v. Wallace

2 C.M.A. 595, 2 USCMA 595, 10 C.M.R. 93, 1953 CMA LEXIS 827, 1953 WL 1779

• Court: United States Court of Military Appeals
• Decided: June 3, 1953
• Docket: No. 988
• Status: Published

Opinions

Opinion of the Court

GEORGE W. LatimeR, Judge:

The accused was convicted by a general court-martial for violation of Article 90 of the Uniform Code of Military Justice, 50 USC § 684, involving willful disobedience of a lawful order of a superior officer, and cowardly conduct, in violation of Article 99 of the Code, supra, 50 USC § 693. He was sentenced to a dishonorable discharge, total forfeitures and twenty years’ confinement. Reviewing authorities approved, except a board of review in the office of The Judge Advocate General of the Army, reduced the confinement to fifteen years. We granted the accused’s petition for review to determine the questions of whether there was a multiplicity of charges, and whether the instructions of the law officer were sufficient. Since granting this review we have held that specifications similar to those used in this case allege, and facts similar to those proven in this instance establish, separate offenses. See United States v. Soukup (No. 533), 7 CMR 17, decided January 23, 1953. Based on the authority and reasoning of that case we hold against the accused on the first question.

The facts produced by the Government are scanty. The accused reported to the commanding officer of Company A, 9th Infantry, at its forward command post. The officer, a first lieutenant, informed the accused he was being assigned to the 2d Platoon which was occupying a position on a designated hill. The accused replied he could not go to the assigned area. The officer explained the consequences of disobeying his order, then called his executive officer and in his presence, repeated the order to accused. Substantially the same reply was received. When it became apparent the accused was not going to comply with the order, he was placed under guard and returned to the rear command post.

Accused testified in his own behalf, recited a history of his military service and stated his version of ■ the. events. While he related a rambling version, his story was substantially this: After serving three months in Korea his feet were frozen and he was sent to a collecting station for treatment. This was in March 1951. He then spent some time with headquarters company, was then transferred to A Company, and then to K Company. Upon arriving in K Company he was reduced in grade from a private first class to a private, although he did not know why. In June 1951, he was wounded, and was sent to the hospital. After this he was transferred back to A Company, and while there he received a concussion from a mortar. After spending a few more days in the hospital, he was again returned to his company. The accused then went absent without leave, and was confined in the stockade for this offense. Upon being released from the stockade he was told that he was going home on rotation. However, before he was to leave, he developed a swelling in his groin, and he was then transferred to Taegu for observation. When he returned to his company on January 4, 1952, several other men of his company had been ordered back to the United States. He was then told he was going to be court-martialed so he went to see his commanding officer. The commanding officer told him he was being sent back to the second platoon, and the accused explained his nervous condition, and informed the officer that he could not go back to that platoon. He had no intention of disobeying the officer, but he was afraid he would shoot one of his buddies, for he feared he might blackout when firing. He was not afraid of the enemy, but was afraid of himself.

I

The first specification against the accused recites:

“In that Private Joseph M. Wallace, Jr. . . . having received a lawful command from First Lieutenant Charles M, Blake Jr., his superior officer, to join the forward elements of his company, did, in the vicinity of Kumwha, Korea, on or about 4 January 1952, willfully disobey the samé.”

' In his instruction to the court-martial the law officer listed as the elements of this offense:

“(a) That the accused received a certain command from a superior officer, as alleged;

‘■‘(b) That such officer was the superior officer of the accused; and

“(c) That the accused willfully disobeyed the command.”

We previously considered the sufficiency of an identical instruction in the case of United States v. Charles F. Simmons (No. Headnote 3 505), 5 CMR 119, decided September 26, 1952. In that case we came to the conclusion that the law officer must inform the court that in order to return a finding of guilty it must find the accused knew the person issuing the order was his superior officer. We there stated:

“While we have not specifically held that there is a duty on the part of the law officer to instruct on what might be clearly identified as an affirmative defense, we have suggested that a court-martial is insufficiently informed as to the law of the case without legal explanation of the defenses properly raised. See United States v. Ginn (No. 263) 4 CMR 45, decided July 10, 1952. In this case knowledge as an element of the offense, or lack of knowledge as an affirmative defense, are so closely interwoven into the pattern of the crime that the court-martial could not fairly determine petitioner’s guilt unless told that in order to return a finding of guilty, it must find the accused knew he was being addressed by a superior officer. Assuming knowledge not to be an essential element it is a factual issue, which, if found in favor of an accused, does not excuse, justify or avoid the crime, but on the contrary establishes there was no crime and it is impracticable to disassociate it from other elements of the offense. In that situation the law officer has the responsibility of giving an instruction on that issue and the duty should be performed with or without a request. It follows that regardless of whether we view knowledge as an element of the offense or defense, the court-martial was not properly instructed.”

Under the ruling of that case we held the law officer erred but we call attention to the limitation we specifically imposed on the principles announced. We quote from page 5:

“Assuming, arguendo, that the Government’s contention could be sustained, and that lack of knowledge was an affirmative defense which must be established by the accused, the question is still unanswered. There remains a determination of whether an instruction must be given on that issue without a request having been submitted by an accused. Under the facts in this case, there was an issue of knowledge because the evidence for the Government showed accused to be intoxicated; his own testimony indicated that he was so under the influence of liquor he ‘blacked out’ and had no recollection of the events. From a factual standpoint, the duty of the law officer to instruct on an issue is not founded on whether he believes the story told by witnesses for the Government or by the accused, it is based on the necessity of giving the members of the court-martial a clear picture of what is in issue so that they can accept either version of the evidence and test it by the instructions given. Testimony of an accused is sufficient tomiake an issue and in this case there is evidence from which the court could have reasonably found that the petitioner was not cognizant of the fact that the order was issued by an officer.”

We reiterate again that in this particular crime, it is unimportant whether we designate knowledge an element of the offense or fact to be proven as an affirmative defense because, if in issue, the court must be told to consider it in arriving at a finding. However, because it falls so close to the border we will not reverse for failure on the part of the law officer to include it as an element of the offense if it is not reasonably raised as a factual issue. If knowledge is conceded, if the evidence compels a finding that the accused knew the order was given by an officer, or if the record is barren of any evidence from which it could reasonably be inferred the accused might not know that a superior officer was issuing the order, then the error, if any, is nonprejudicial. If, on the other hand, the evidence permits a finding of lack of knowledge, then the accused has just cause to complain. Applying the foregoing test, the accused was in no way prejudiced by the law officer’s omission in this case, for the only evidence is to the effect that he was aware Lieutenant Blake was his superior officer. The conversation took place in the company area at 11 o’clock in the morning. The officer was wearing his insignia of rank. In answer to the question, “Did the accused make any acknowledgment of your rank or position as Commanding Officer?” Lieutenant Blake stated, “Not that I remember. I informed Mm toho I was when I talked to him. (Emphasis supplied.) Later in the trial, the accused gave the following testimony:

“. . . . He [the company clerk] told me to report to the CO. 1 reported to Lieutenant Blake, and he introduced himself as CO, and after a conversation I asked him if I could get my job back on the carrying party, and he said that he had to send me to the 2nd Platoon, and that his hands were tied, and there was nothing else he could do. . . [Emphasis supplied.]

Other testimony found in the record does not touch on whether the accused knew Lieutenant Blake was his superior officer so the only evidence, direct or circumstantial, before the court-martial, was that the accused knew he was receiving an order from his superior officer. With the quantity and quality of the evidence on this point not being lessened, weakened, or damaged by inconsistencies or contradictions, only one finding could have been returned by the court. In that situation we can say with assurance that no prejudice resulted to the accused from the law officer’s failure to direct the court to consider knowledge or lack of knowledge in arriving at a finding of guilty or not guilty.

II

Appellant next questions the sufficiency of the instructions of the law officer with regard to the cowardice charge. The specification recites:

“In that Private Joseph M. Wallace, Jr. . . . , in the vicinity of Kumwha, Korea, on or about 4 January 1952, in the presence of the enemy, was guilty of cowardly conduct, in that he wrongfully failed to join the forward .elements of his company as it was his duty to do.”

The elements of this specification as listed by the law officer included:

“(a) That the accused• committed an act of cowardice, as alleged; and

“(b) That this act occurred while the accused was before or in the-presence of the enemy.”

Appellant argues that the court-martial should have been informed that it must find beyond a reasonable doubt that the accused’s conduct was motivated by fear. In the recent case of United States v. Soukup, supra, we consider this precise question under identical instructions. We held there that it was of paramount. importance that the court be informed accurately of the presence of fear among the ingredients of the offense for which he was on trial. Furthermore,, particular danger, of prejudice existed when the evidence was such that the failure to join might be motivated by factors other than fear. That the conduct of the accused in this case may well not have been prompted by fear is reasonably possible. While his testimony reads rather unimpres-sively, he testified to having been in combat for some time and to having been wounded twice; that he had not been afraid to carry out his duties while under combat conditions; that his refusal to go forward was not prompted by fear of the enemy, but by fear that he might black out and shoot one of his buddies. The testimony of Lieutenant Blake was not inconsistent with this theory although some of the circumstances were. However, unless the testimony of the accused is conflicting, uncertain, inherently improbable or unworthy of belief, it must be considered for sufficiency of raising an issue. - Because the law officer failed to require a finding on a material matter in issue, this finding must be reversed.

Ill

The other assignments of error have been considered and they are overruled without comment. Either they are rendered immaterial by our holdings on the other contentions advanced or they have been considered in previous cases and the law settled and publicized in other opinions.

The findings on the charge of willfully disobeying the order of a superior officer is affirmed, while- that on the cowardly conduct is reversed. The sentence is set aside and the cause is remanded to The Judge Advocate General of the Army for disposition consistent with the views expressed herein.

Chief Judge Quinn concurs.