United States v. Wilson

16 C.M.A. 530, 16 USCMA 530, 37 C.M.R. 150, 1967 CMA LEXIS 348, 1967 WL 4212

• Court: United States Court of Military Appeals
• Decided: February 24, 1967
• Docket: No. 19,811
• Status: Published

Opinion

Opinion of the Court

Kilday, Judge:

Appellant was arraigned before a general court-martial convened at Fort Lewis, Washington, charged with desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. He pleaded not guilty but was found guilty as charged. He was sentenced to dishonorable discharge, total forfeitures, confinement at hard labor for two years, and reduction to the grade of Private E-l. The convening authority approved the sentence. A board of review in the office of the Judge Advocate General of the Army affirmed the finding of guilty, but reduced the confinement portion of the sentence to one year.

On this appeal, the appellant questions the adequacy of that portion of the law officer's instruction on reasonable doubt that reads:

“A reasonable doubt may arise from the insufficiency of circumstantial evidence, and such insufficiency may be with respect either to the evidence of the circumstances themselves or to the strength of the inferences drawn from them.”

This same issue was raised and resolved adversely to the appellant in the case of United States v Kirby, 16 , 37 CMR 137. Our opinion in that case is here controlling.

The decision of the board of review is affirmed.

Chief Judge Quinn and Judge Fek-GUSON concur.