burden of further inquiry on the court or to raise the issue of insanity. (Citing MCM, 1951, par 122b.) Held also: Although the denial of the motion was proper, such motion was inconsistent with the accused's plea of guilty and since no explanation as required by par 70b, MCM, 1951, was given following the motion, the completion of the trial on the plea of guilty was error. To be inconsistent with a plea of guilty it matters not whether a statement be true or false or whether supported by any evidence as long as made by the accused in the course of trial. Clearly a plea of guilty and an immediate motion for a finding of insanity at the time of commission of the offense are inconsistent. Just as clearly an assertion by the accused that he was insane at the time of the offense is not consistent with an assertion on arraignment that he is guilty. As used in that portion of par 70b, MCM, 1951, providing that whenever an accused in the course of trial following a plea of guilty makes a statement to the court in his testimony or otherwise inconsistent with the plea the court will make such explanation and statement as the occasion requires, the word "otherwise" includes motions by the defense counsel. Here there was no statement or explanation following the motion for a finding of insanity and the defense did not voluntarily withdraw this inconsistent statement. This was error of law materially prejudicial to the substantial rights of the accused. NCM 302, Ray (1954) 15 CMR 539. The accused was tried under Naval Courts and Boards and was found guilty of several offenses following his pleas of guilty. In a petition for a new trial he alleged that the trial of the case was had after he had been informed that he would not be permitted to receive a psychiatric examination. He did not assert that he was suffering from a mental illness at the time of the offenses; his statement was not supported; he did not state when he requested an examination, to whom the request was directed, nor did he identify the authority who informed him he would not be permitted to receive such examination. The only possible reference during the trial to mental impairment occurred in an unsworn statement read by the accused wherein he stated "On the day in question, I was drinking and had a great deal on my mind. It is now evident to me that the pressure was released and the explosion manifested itself in the form with which I am charged." A medical report was in evidence showing the accused fit for further service. Held: Assuming the accused's assertion that he was denied an examination is true, his rights were not prejudiced. The burden is on him to prove unfairness by more than his own unsupported statement (Couchois v. U. S., 142 F2d 1, cert den 323 US 754, 89 L ed 604, 65 S Ct 81). Assuming that by this assertion the accused now implies that he was insane at the time of the commission of the offenses, the federal rule is that the prosecution may rely on the presumption of sanity until there is evidence to overthrow the presumption (CMO 3, 1944, 511, 514; Sec 311 (c), Naval Courts and Boards, 1937). The law presumes that everyone charged with a crime is sane and the burden of rebutting this presumption is on the defense (Davis v. U. S., 160 US 469, 16 S Ct 353, 40 L ed 499; U. S. v. Ridgeway, 31 F 144; Battle v. U. S., 209 US 36, 28 S Ct 422, 52 L ed 670; Holloway v. U. S., 248 F 665). The accused's unsworn statement was not evidence and could not serve to rebut the presumption of sanity nor was such statement inconsistent with his pleas of guilty. Op JAGN 1954/208. 26 February 1954. § 35.15. Amnesia. Before pleading, the defense made a motion that the charges be dismissed on the grounds that the accused could not intelligently conduct or cooperate in his own defense. A psychiatrist testified that the accused suffered from a true amnesia due to hysteria which developed after the time of the alleged offenses and the amnesia covered the period of time of the alleged offenses and to almost anything that had occurred in the past. However, he concluded that the accused had sufficient mental capacity to understand the nature of the proceedings against him and sufficient mental capacity to intelligently conduct or cooperate in his own defense within the limitations imposed by his amnesia. Held that: - if an accused was sane at the time he committed an offense but at the time of trial was unable to participate properly in his defense, a motion to dismiss is not an acceptable motion, inasmuch as the most an accused is entitled to is a continuance until the mental deficiency can be treated and corrected, if that is reasonably possible. If it is established that the condition is permanent, then appropriate authorities might dismiss the prosecution, but that type of administrative proceeding should not be mingled with the trial on the merits. Accordingly, in the instant case, defense counsel should have made a motion for a continuance unless he was prepared to show a permanent state of mental derangement. Furthermore, the law officer should have treated the motion as being one of that nature, weighed the evidence, and made a determination as to the accused's capacity to cooperate in his defense subject to objection by any member of the court. the law officer's instruction to the court that unless they found beyond a reasonable doubt that the accused had sufficient mental capacity on the day of trial to understand the nature of the proceedings against him, the court should find him not guilty, was error, inasmuch as under such circumstances, the accused would be entitled to no more than a delaying action rather than an acquittal. - the hysterical amnesic condition which interfered with the accused's capacity to remember the facts and circumstances surrounding the criminal occurrence did not relieve the accused of criminal responsibility nor bar the government from proceeding in the case, particularly in view of the fact that the accused was legally responsible at the time of the offense, he did not request a continuance, and, other than the loss of memory as to the events at the time of the offense and prior thereto, he was able to assist in his defense. (Citing U. S. v. Olvera (No. 2761), 4 USCMA 134, 15 CMR 134.) -the test for dismissing a prosecution for mental deficiency at the time of trial will not be extended to mental disorders arising out of alcoholism or hysteria which interfere only with a clear recollection of the facts surrounding the offense or those antedating its occurrence. The right to dismissal must grow out of a permanent mental disturbance at the time of trial which, in good conscience, would require that legal proceedings be stayed and the action disposed of through administrative channels. If a mental condition arises subsequent to the commission of an offense which raises reasonably an accused's mental capacity to cooperate in his defense, the proceedings set forth in the Manual should be strictly complied with. United States v. Lopez-Malave (No. 4202), 4 USCMA 341, 15 CMR 341, affirming CM 364327, LopezMalave, 12 CMR 471, supra § 35.9. The accused was charged with larceny. He testified at the trial that he had been drinking on the evening in question and that he did not recall taking the wallet involved. He stated that on previous occasions he had blacked out and also had lapses of memory. However, he was able to remember every detail before the alleged blackout, and following his discovery of the wallet and the money therein in his possession, he attempted to dispose of the wallet and secrete the money, and finally he attempted to make an adjustment with the victim. Held: The testimony adduced by the accused as to prior losses of memory establish no more than a character defect, and do not show a psychosis or any other mental disease. Alcoholic amnesia in and of itself is not a mental defect, disease, or derangement which will excuse the commission of a crime (U. S v. Olvera (No. 2761), 4 USCMA 134, 15 CMR 134; U. S. v. Lopez-Malave (No. 4202), 4 USCMA 341, 15 CMR 341; MCM, 1951, par 120b). There must be a showing that alcoholism has so affected the mind of the person asserting the defense that he could not distinguish between right and wrong or could not adhere to the right. If the consistent use of alcohol has impaired the mental faculties to that extent it is a defense, but otherwise it is not. United States v. Marriott (No. 4203), 4 USCMA 390, 15 CMR 390, affirming CM 365665, Marriott, 13 CMR 370. See also United States v. Olvera, TRIAL § 57.9. § 1. In General. DEPOSITIONS § 3. Procedure, Generally. 9. Use as Evidence. § 1. In General § 1.5. Persons authorized to take. Depositions offered by the prosecution, and received into evidence without objection by the defense, were originally sent by the trial counsel to a certain officer, one "Carl D. Eisenman, 1st Lt. USAF, JAGD," with a request that such officer should cause the depositions to be taken. The officer thereafter ordered another officer to take each of the depositions, and they were so taken, the official character of the latter officer being shown as "Designated Asst. to Legal Officer." The order of Lt. Eisenman to the other officer appeared on the face of each deposition. While the official capacity of the latter was not shown, his rank (1st Lt) and branch of service (USAF) did appear. Held: The failure of the defense to object to the admission of the depositions was a waiver of such objection, and therefore the depositions were properly received into evidence (ACM) S-796, Brown (BR), 3 CMR (AF) 623). The circumstances did not disclose any patent infirmity in the procedure, since it appeared that the person who administered the oath was, in fact, an officer of the Air Force and as such was not disqualified (UCMJ, Art 136(b)(3)). (See Federal Rules of Criminal Procedure, Rules 15 and 32; Shutte v. Thompson, 15 Wall (US) 151, 21 L ed 123, 126; Frank v. United States, 42 F2d 623; Moore v. Keesey (Wash) 173 P2d 130, 140. Distinguishing ACM 5161, Butcher and West, 5 CMR 634; CGCMS 19442, Johnson, 4 CMR 496; NCM 114, Johnson, 3 CMR 448.) ACM 6532, Kelley (1953) 11 CMR 721. § 1.11. Counsel for accused. It is not essential that the same person represent the accused at the taking of the depositions as represents him at the trial. However, it is necessary when a deposition is to be used in a general court-martial that the accused be represented at the former by legally trained counsel. Furthermore, the fact that counsel who represented the accused on the preparation of the deposition was not the same counsel who represented him at the trial does not affect the admissibility of the deposition. United States v. Sutton (No. 1718), 3 USCMA 220, 11 CMR 220. During pretrial investigation of the charges against the accused, the investigating officer requested that deposition testimony of a witness who was about to be discharged be taken and officers were appointed to represent the accused and the government. Neither officer possessed legal qualifications, but the officer who was designated to represent the accused was the same officer who, upon their specific request had been appointed to represent them at the Art 32 investigation. The deposition was duly taken and recorded in the presence of both the accused, their counsel, and the officer representing the government and the investigating officer. Full advantage was taken by the accused's counsel to cross-examine the witness. The deposition was admitted in evidence at the trial of the accused by general court-martial. Held: A contention that the deposition was inadmissible because the accused were tried by general court-martial and the person who represented the accused at the taking of the deposition did not possess the qualifications prescribed by UCMJ, Art 27 for persons representing accused persons being tried before a general court-martial cannot be sustained. Article 27 of the Code is concerned solely with the appointment and qualifications of trial counsel and defense counsel of general and special courts-martial and the Board does not find any correlation between those provisions and the provisions of UCMJ, Art 49 relating to the taking and use of depositions. The wording of Art 49 negatives any intent to provide that officers designated to represent the prosecution and the defense in the taking of the deposition be qualified lawyers in those cases where the deposition is to be used in the general court-martial since it speaks only of the power to designate officers to represent the prosecution and defense and no attempt is made to designate their qualifications. Furthermore, to read into Art 49 the jurisdictional requirements regarding qualifications of counsel as set out in Art 27 would be in effect to strike out that portion of par 117a, MCM, 1951, which provides "although it is not required that officers designated to represent the parties in taking oral or written depositions be legally qualified lawyers, if the officer appointed to represent the prosecution is qualified in the sense of Art 27, the officer detailed to represent the defense must have at least equivalent qualifications under the provisions of that Article." The view taken herein permits giving full force and effect to all the provisions of the Code and to the Manual provisions as well. (In the absence of an express invalidation of this provision of the Manual, statement to the contrary in U. S. v. Sutton (No. 1718), 3 USCMA 220, 11 CMR 220, not followed.) Held also: The requirement of par 117a, MCM, 1951, that if the officer appointed to represent the prosecution is qualified in the sense of Art 27, the officer detailed to represent the defense must have at least equivalent qualifications is not applicable in this case since the officer designated to represent the government was not so qualified. ACM 7799, Dooley and Drain (1953) 13 CMR 920. §3.1. In general. § 3. Procedure, Generally On the trial of the accused for larceny of two automobiles, two depositions were introduced over defense objection. These depositions were taken by sending them to the staff judge advocates of air bases near the places where the offenses took place, with the names of the desired deponents left blank. The accompanying letter in each case explained that the name of the deponent was uncertain, but that the accused had said in a confession that he had talked to salesmen at named automobile sales companies about the purchase |