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it was offered and it related to the very issues involved in the instant case. United States v. Eggers (No. 1990), 3 USCMA 191, 11 CMR 191.

§ 169.1. Generally.

§ 169. Mode of Proof

See 20 Am Jur, Evidence $$ 710-715.

On a rehearing, certain witnesses who had testified at the former trial were unavailable. The prosecution, after proper identification, offered in evidence the entire record of the former trial, including allied papers and the decision of the board of review concerning the former trial. The prosecution stated that the only purpose in this procedure was to do away with the requirement of recalling the officer who had identified the record with regard to each particular witness. The prosecution also requested that the law officer instruct the court to disregard some portions of the record and that the entire record not be made available to the court. The defense objected to this procedure but the law officer admitted the record into evidence with the following ruling: "Prosecution Exhibit 3 for identification will be received into evidence. However, the court will not see this Prosecution Exhibit 3 as a record of trial, and the portions which will later be introduced into evidence may be admitted for that purpose or for the purpose of the court to see, and the defense will reserve their right to object thereto to that, and under those circumstances Prosecution Exhibit No. 3 for identification will be received into evidence, Thereafter during the trial, the trial counsel introduced the former testimony of certain witnesses who were unavailable. In the case of each witness, the prosecution read the pertinent and admissible portions of the record of trial from Prosecution Exhibit 3. Numerous times the defense offered objection to certain portions of the record of former trial, thereupon the law officer ruled upon the admissibility of such portions and on a number of occasions the court was instructed to disregard certain parts of the testimony contained in the record of the former trial. The appellate defense counsel contended that the accused's substantial rights were prejudiced by reason of the fact that the present record shows that the court had access to the entire record of the former trial, including all the allied papers, and that it was impossible to determine to what extent the court was influenced by those parts of the record not proper for its consideration. Held: The record of the former trial was admissible in evidence to establish the testimony of witnesses who were unavailable at the time of the rehearing. (Citing MCM, 1951, par 145b.) The record does not show that the record of the former trial was available to the court for its unrestricted use. While the propriety of the method used to get the admissible portions of the record of the former trial before the court may be questionable, it does not appear that there is a reasonable possibility that the court understood that it was free to consider the entire record of trial. As a matter of fact, it is doubtful that the court was given possession of the entire record in view of the statement

of the law officer when admitting it. But even assuming that the court did have access to the entire record, the instruction of the law officer adequately informed the court that they were free to consider only such portions of the record as were read to them and were specifically mentioned as admissible in evidence in the case. The members of a court-martial are presumed to act in accordance with the instructions of the law officer with respect to what evidence they may consider (U. S. v. O'Briski et al (No. 1082), 2 USCMA 361, 8 CMR 161; see also U. S. v. Day (No. 703), 2 USCMA 416, 9 CMR 46). ACM 5229 (Reh), Walsh (1953) 10 CMR 694.

On a rehearing, the trial counsel stated that the prosecution desired to call as its first witness a certain person who had been separated from the service since the date of the original trial, that it was stipulated between the trial counsel, defense counsel and the accused, with the consent of the accused, that the present address of the proposed witness was more than 100 miles from the place of the present trial, and that thus the testimony given by the witness at the former trial would be read from the official record of the former trial. The defense counsel stated: "Defense agrees to the stipulation as to the present whereabouts of the witness." In response to questions by the law officer the accused stated that he understood the meaning of the stipulation and that he was agreeable to having it accepted by the court. Identical stipulations were made as to the testimony of all other government witnesses. Held: The defense agreement to the stipulation was not limited to that portion dealing with the present whereabouts of the witness but rather embraced the entire stipulation including the portion dealing with the reading of the former testimony. (Cf. U. S. v. McNeill (No. 1048), 2 USCMA 383, 9 CMR 13.) It is familiar learning that the intent of the parties to an agreement will be given effect if possible. And where the intent is but poorly manifested, that construction will be adopted which will avoid an absurd result. (Citing U. S. v. Padilla and Jacobs (No. 400), 1 USCMA 603, 5 CMR 31.) A stipulation should be so construed as to effectuate the apparent intention of the parties and be in harmony with the requisites of a fair trial upon the merits rather than in a narrow and technical sense which would defeat the purpose of its execution. In case of doubt an appellate court should adopt a construction that accords with that at the trial level. (Citing U. S. v. Cambridge (No. 1850), 3 USCMA 377, 12 CMR 133.) Thus the testimony of the witnesses at the former trial was properly before the court-martial since it appears that the accused and his counsel were accorded an adequate opportunity to supervise the submission of the testimony at the trial, that this testimony was in fact extracted from the record of the former trial, and that it was the clear purpose of the parties to stipulate that it be accepted by the court. United States v. Niolu (No. 1040), 4 USCMA 18, 15 CMR 18, reversing CM 351138, Niolu, 13 CMR 189.

XII. REAL OR DEMONSTRATIVE EVIDENCE

§ 183.1. Generally.

§ 183. Photographs

Two photographs of the payroll on which the accused was alleged to have forged the signature of another were admitted in evidence. A photographer testified that certain documents had been furnished to him by a named officer and identified the photographs as of those documents which he caused to be reproduced. However, he stated that he had not made the actual photographs but that they had been done by someone in his office and he further stated that he could not identify the exhibits as copies of an official military payroll list because he was unfamiliar with such documents. The government conceded that the admission of the photographs was erroneous, but contended that there was no prejudice. Aside from the photographs the only evidence concerning the identity of the forger was a deposition by an assistant payroll clerk who testified that he saw the accused sign the other man's name to the payroll. However, there were circumstances to weaken the effect of that evidence and it was contradicted by the accused's positive denial. Held: The government's concession that the admission of the photographs was erroneous was appropriate but the admission was prejudicial under the circumstances. United States v. Field (No. 2210), 3 USCMA 182, 11 CMR 182.

§ 187.1. Generally.

§ 187. Comparison of Writings

In connection with an alleged forgery, the accused signed 25 sheets of paper with various names as examples of his handwriting. At the trial these samples were compared with signatures allegedly forged, and an expert testified that they were made by the same person. Held: The admission of the handwriting samples into evidence without a showing that the accused was first warned of his rights under UCMJ, Art 31, before making the samples, was not prejudicial error. While there was no indication of a compliance with the provisions of Art 31, neither was there any showing of a violation. Hence, it is not within the prerogative of the board of review to speculate upon the question, especially in view of the fact that defense counsel made no objection to the admission of the samples. (Citing CM 360823, Price, 9 CMR 442; distinguishing U. S. v. Rosato (No. 1375), 3 USCMA 143, 11 CMR 143.) CM 365303, Wetzell (1953) 12 CMR 269.

Compare cases under SELF-INCRIM § 6.9.

§ 189. Experiments

§ 189.21. Chemical color test.

The accused was found guilty of wrongfully using a habit forming narcotic drug solely upon evidence of the positive results of three color tests (Marquis, Froehdes, Meckes) performed by a duly quali

fied chemist and toxicologist upon a specimen of the accused's urine. The accused denied the use of the drug in question and a medical officer who examined him shortly after his apprehension observed no evidence of his having used the same. The accused's commanding officer and a noncommissioned officer, both of whom had observed him daily for a considerable period prior to the date of the offense, had never observed any indication that the accused was under the influence of narcotics. The latter two individuals testified to the accused's good reputation for truth and veracity.

Standard scientific texts (Simmons and Gentzkow, Laboratory Methods of the United States Army (5th ed, 1944), p 329; Rhodes, Forensic Chemistry (1940) pp 184-185; Lucas, Forensic Chemistry and Scientific Criminal Investigation (4th ed, 1945), p 274; Remington, Practice of Pharmacy (7th ed, 1926), p 1102), which the board of review appropriately can take judicial notice of and cite as giving a foundation of fact for subject involved in their decisions (6 Wigmore on Evidence, 3d ed, 1940, sec 1700 (d); 1 Wharton, Criminal Evidence, 11th ed, 1935, sec 50), note in effect that color reaction tests alone such as those in question are not conclusive. Held: It does not appear under the circumstances of this case that the chemical color tests in question have received such standing and recognition among authorities in the field of chemistry that they may be the sole basis for conviction of the accused (cf. Frye, v. U. S., 293 F 1013). Hence, the record presents at least a reasonable doubt of the guilt of the accused, requiring dismissal of the charges. This decision is based on the limited probative value of the mentioned tests and does not question the admissibility of evidence of the tests. CM 366433, Ellibee (1953) 13 CMR 416.

XIII. EXPERT AND OPINION EVIDENCE; CONCLUSIONS

B. EXPERT OR SKILLED WITNESSES

§ 203.1. Generally.

§ 203. Qualifications of Witness

The U. S. Court of Military Appeals will review a determination by a law officer that a witness was qualified to testify as an expert, but the review is limited to a determination of whether there has been an abuse of discretion by the law officer. (Citing Congress and Empire Spring Co. v. Edgar, 99 US 645, 25 L ed 487; Hodge v. United States, 13 F2d 596 (CA6th); United States v. German-American Vocational League, 153 F2d 860 (CA3d).) United States v. Hagelberger (No. 2651), 3 USCMA 259, 12 CMR 15, affirming CM 354513, 9 CMR 274.

At a trial for the offense of wrongful possession of a habit-forming drug, to wit: heroin, the evidence indicated that the accused, as a guard at a stockade, arranged to deliver heroin to two prisoners. These prisoners had been drug addicts for a considerable period of time. The drug delivered to them by the accused on certain dates had the same characteristics, and produced the same reaction, as heroin, and both prisoners testified that they were certain that it was

in fact heroin. A properly authenticated copy of a clinical record was admitted into evidence, over objection of the accused, showing that one of the prisoners had been in the hospital for a period of time, the diagnosis being: "Addiction, heroin, with manifestations of withdrawal symptoms." Defense counsel objected to the testimony of the prisoners, on the ground that they were not experts and could not give opinions in testimony. The testimony of a medical officer was offered by the defense to refute the testimony of the prisoners. Held that:

- the clinical record, revealing the diagnosis of the illness of one of the prisoners, was properly admitted as an official record. (MCM, 1951, par 144b, 144d; AFR 160-74, Sec I, par 2, 3; Long v. U. S. 59 F2d 602; and other cases).

a witness who has drunk whiskey and therefore is familiar with it, generally may testify as to whether or not a particular beverage is whiskey, if he bases his testimony upon his senses of taste, sight, and smell (Wharton's Criminal Evidence, sec 996, p 1750; Atles et al v. U. S. (CA 7) 50 F2d 808; Lewinsohn v. U. S. (CA 7) 278 F 421, cert den 258 US 630, 66 L ed 800, 42 S Ct 463; 78 ALR 499). Also, in a prosecution for unlawfully possessing and selling marihuana, a witness, testifying that he knew marihuana and that he had smoked it and dealt in it, is qualified to so testify, the objection as to lack of qualification going toward weight and not admissibility (Medina v. State, 193 SW2d 196; Pennacchio v. U. S. 263 F 66, and cases therein cited).

under the circumstances, the testimony of the two prisoners that in their opinion heroin was given them by the accused was admissible in evidence. Because of their past experience with drugs they were acquainted with the effects of heroin. In a sense, they were "experts" in the field. (Citing Wigmore on Evidence, vol VII, sec 1923; Lewinsohn v. U. S. (CA 7) 278 F 421; Williams v. United States, 94 A2d 473, 474; Weaver v. U. S., 111 F2d 603, 606; U. S. v. Tramaglino et al, 197 F2d 928; 13 ALR 864.) ACM 7234, Quindana (1953) 12 CMR 790.

Qualifications of limited user of drugs to express opinion as to whether a certain drug was morphine, see United States v. Smith, CONDUCT, ETC. § 47.9.

§ 211.1. Generally.

§ 211. Hypothetical Questions

On the trial of the accused for murdering his daughter, the law officer improperly permitted a medical officer who had treated the child to testify that the accused's wife had told him the child had been kicked in the abdomen by the accused. During the questioning of a medical officer who conducted an autopsy on the child the prosecution posed a hypothetical question assuming as true the fact that the person whose body upon whom the autopsy had been performed was traumatized in the abdomen by a kick from a man. The defense objected to the hypothetical question but was overruled. Following this the prosecution continued as follows: "Doctor, in your opinion,

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