was there any possible relation between the original trauma, subsequently evidenced by a bruising of the abdomen as evidence of a trauma and the condition upon which you base your opinion as to the cause of death?" Held: The first part of the question objected to was based upon the testimony as to the wife's statements made to the doctor, and since no other evidence as to how the injuries were received was before the court, and since that testimony was improperly received it follows that the hypothetical question repeated the same error and was improper and prejudicial. Questions based on erroneous assumptions of facts or facts not in evidence should be excluded. (Citing ACM 5745, Goodman, 7 CMR 660; U. S. v. Stephens, 73 F2d 695; U. S. v. Eide, 88 F2d 682; U. S. v. Roberts, 192 F2d 893; U. S. v. Spaulding, 293 US 498, 79 L ed 617, 55 S Ct 273.) However, while the second question relating to causal relation between the original trauma and the cause of death may have been inartfully worded, the clause "the condition on which you base your opinion," did not relate to the objectionable evidence and assume it to be true. This clause related only to the physical conditions found during the autopsy and which conditions, in the opinion of the doctor testifying, resulted in death. While it would have been safer procedure to have particularly limited this portion of the questions to the conditions found at the autopsy, the second question was not erroneous. ACM 7732, Hawley (1954) 14 CMR 927.

[See 58 Am Jur, Witnesses §§ 853-55.]

C. SUBJECTS OF OPINION EVIDENCE

§ 223. Physical Condition

§ 223.5. Cause of death, disease, or injury.

Permitting a doctor, who qualified as a medical expert, to answer a question as to whether the muzzle of the carbine was close to the head of the victim when it was fired was not prejudicial error, in the absence of objection to the question or answer by defense counsel at the trial. However, assuming there was objection the answer would not have been admissible (State v. Voorhees, 115 La 200, 38 So 964; State v. Johns, 152 Iowa, 383, 132 NW 832; State v. Gruber, 150 Wash 66, 272 Pa 89.) United States v. Hagelberger (No. 2651), 3 USCMA 259, 12 CMR 15, affirming CM 354513, 9 CMR 247.

[See 20 Am Jur, Evidence §§ 867 et seq.]

§ 227. Identity and Resemblance

§ 227.15. Fingerprints.

Testimony by a witness who had qualified as a fingerprint expert in response to a question by the trial counsel as to whether, as a result of his examination or comparison, he had "formed an opinion as to whose fingerprints" appeared on the cigarette in question, that the fingerprints on the cigarette matched those of the accused, was not objectionable as testimony to an ultimate fact which removed a factual issue from the court. The answer of the witness was only

his belief or opinion and the court could accept or reject his conclusion. United States v. Hagelberger (No. 2651), 3 USCMA 259, 12 CMR 15, affirming CM 354513, 9 CMR 274.

Opinion or conclusion of civilian witness certain words addressed by an officer to an enlisted man constituted an order, see ACM 8552, Gallagher, DISOBEDIENCE § 41.23.

§ 235.11. Intoxicating beverages; drugs or narcotics. See 20 Am Jur, Evidence § 876.

On a trial for wrongfully using narcotics, a portion of the prosecution case consisted of the testimony of a medical officer who had examined the accused. This officer was asked what were his conclusions from his medical examination of the accused in regards to the use of narcotics. Over defense objection he answered that the results of the medical examination were that he obtained a history of the use of narcotics and found physical evidence of their unquestionable use. He then stated what physical symptoms he noticed and further stated that the medical history tended to confirm the findings of the signs of the physical examination. Crossexamination by defense counsel was primarily directed to obtaining an admission from the witness that his opinion that the accused had used narcotics within the week before his medical examination was largely based on his questioning the accused and the obtaining of incriminating statements from him without the warning required by UCMJ, Art 31 and therefore his opinion testimony was in effect a confession by the accused and was inadmissible under Art 31. Held: It was not error to admit the expert testimony of the medical witness. There are a number of offenses in which the physical condition of a person committing an offense is highly significant or even in some circumstances decisive with respect to the determination of guilt. If the appropriate medical officer in the course of his duty as a medical officer performs a medical examination and, in order to establish the significance of physical symptoms which may otherwise be indeterminate, questions the person being examined as to past activities or conduct such examination is not within the purview of UCMJ, Art 31. NCM 262, Barnes (1953) 13 CMR 552. Admissibility of opinion of drug user as to identity of drug, see United States v. Smith, CONDUCT, ETC. § 47.9.

XIV. DOCUMENTARY EVIDENCE

§ 243.1. Generally.

A. IN GENERAL

§ 243. Letters and Telegrams

Proper method of receiving in evidence, see United States v. Wellman, infra § 271.1.

§ 243.17. Absence of entries or record.

The accused was charged with making a false official statement that he had received a telegram to the effect that his mother was seriously ill and his presence at home was required. The manager of the local Western Union office where the telegram was alleged to have come from testified that he could find no record of a telegram being sent to the accused. There was also evidence that a search of the records at the communications center at the Air Force base where the telegram would have been sent failed to show any message for the accused was received. Held: The testimony of a custodian or a responsible official who has examined the books or accounts containing business entries to the effect that, after diligent search, an entry of a fact or an event which would have been recorded in the ordinary course of business, is not found recorded therein, is properly admissible in evidence. (Citing Wigmore on Evidence, vol IV, 3d ed, sec 1244 (5), p 469 and vol 5, sec 1531, p 392; 20 Am Jur, Evidence § 1086; 32 CJS, Evidence sec 687; Burton v. Briggs, 20 Wall (87 US) 125, 136, 22 L ed 299; McDonold v. U. S., 200 F2d 502; ACM 5293, Downing, 6 CMR 568, 571. Distinguishing CM 337950, Deyo, 4 BR-JC 175; Shreve v. U. S., 77 F2d 2.) ACM 7081, McDonough (1953) 12 CMR 883.

§ 255.3. Checks.

§ 255. Miscellaneous

The accused was charged with forgery of a check. The prosecution introduced in evidence, as an exhibit in connection with the taking of the deposition of the alleged payee, a photostatic copy of a check issued by the Commonwealth of Pennsylvania and signed by Charles R. Barber, State Treasurer. Trial counsel neither presented any independent evidence nor offered any other type of proof that the photostatic copy of the alleged check was, in fact, what it purported to be.

Held that:

the contents of the check alone did not establish authenticity of the check (Wigmore, Evidence, 3d ed, sec 2148, p 606; Lundgren v. Union Indemnity, 171 Minn 122, 213 NW 553).

a court-martial cannot look to the local law of a state for judicial notice or the presumption of genuineness of the signature of a state officer (Rule 26, Federal Rules of Criminal Procedure). the purported signature of the state treasurer alone cannot impart genuineness to the check (County of Apache v. Barth, 177 US 538, 44 L ed 878, 20 S Ct 718.

the rule that the arrival of a reply, in due course, purporting to be from the addressee of a prior communication, which had been duly addressed and forwarded, is sufficient evidence of the genuineness of the reply to justify its admission into evidence (MCM, 1951, par 143b, p 260; Marcette's Estate v. Clay, 170 Kan 189, 224 P2d 998 (1950)), is not applicable in the instant case notwithstanding the contention that the check was a reply to the payee's application for a veteran's bonus. There was no showing that the check was received by anyone, much less the addressee,

and it does not appear, except in the accused's confession; that the check was ever mailed.

— assuming, without deciding, that failure to object to use of a photostat, instead of the original, amounted to a waiver of the best evidence rule, it would not also constitute a waiver of an affirmative showing that the check was, in fact, what it purported to be. An agreement to use of a copy does not waive the requirement of authentication (In re Thomasson's Estate, 347 Mo 748, 148 SW2d 757). True, a failure to object to defects and irregularities in the taking of a deposition would constitute a waiver of such defects and irregularities (Doanne v. Glenn, 88 US 33, 22 L ed 476; York Manfg. Co. v. Ill. Cent. R. R. Co. 70 US 107, 18 Led 170). But waiver extends only to such defects as may have been obviated by a retaking of the deposition. (Thompson v. Thompson, 164 F2d 705 (1947)). A retaking of the deposition of the payee in this case could add nothing whatsoever to the question of authenticity of the check. The payee never saw the check and could not have provided any proof of genuineness on the basis of the interrogatories presented to him. Consequently, the withholding of objection to the photostat on the ground of lack of authentication could not have resulted in the sacrifice of any substantial right by the government. United States v. Bryson (No. 2032), 3 USCMA 329, 12 CMR 85.

B. PUBLIC, OFFICIAL, AND MILITARY DOCUMENTS

2. PARTICULAR DOCUMENTS

§ 271. Morning Reports; Service Records

§ 271.1. Generally.

The accused was found guilty of unauthorized absence from his organization. The sole evidence to establish the initiation of the unauthorized absence consisted of an extract of the morning report of the accused's organization. At the trial, the court took judicial notice of a general order which attached the accused's organization to another organization for administration, including the assignment and promotion of personnel, operational control, and logistical support. The officer who signed the original morning report in question and also authenticated the extract copy as custodian of the original was not a member of the accused's organization but was an officer of the organization to which the accused's organization was attached for administration. This officer testified that the accused's organization was attached to his organization for administrative control and that administrative control included the preparation of morning reports. He also said that he was the official custodian of the morning reports of the accused's organization. The accused's commanding officer who was physically present with his organization had nothing to do with the preparation of the morning report. Held: The extract copy of the morning report was properly admitted in evidence. Where the basic organizational directives and the general orders of activation of an organization clearly show that such organ

1

ization is a separately constituted and activated or designated an organized unit, such organization is both required and empowered to maintain a morning report. (AFM 171-6, Foreword par 3c (3), June 1950; AFR 20–38, par 2c, 17 Nov 1950.) The orders of attachment in no fashion eliminated the necessity for the maintenance of an independent morning report. (Citing AFR 20-38, par 2d (2), 17 Nov 1950; Dictionary of United States Military Terms for Joint Usage, AFP 5-1-1, April 1953, p 12; AFM 171-6A, Ch 4, par 1d (1) (a) at pp 45-46; MSG 25 May 1951 AFCJA to CGFEAF; Op JAGAF 1952/3 and Op JAGAF 1952/75, 1 Dig Ops, NON-JUD PUN § 4.7.) However, if the individual who signs a morning report is within the class of persons empowered to do so by regulation, his capacity to sign, in the case of a commander, or the authority to sign has been properly designated, in the case of officers other than the commander, will be presumed absent any showing to the contrary. (Citing U. S. v. Masusock (No. 15), 1 USCMA 32, 35, 1 CMR 32, 35.) The general orders which attached the accused's organization for administration and other purposes to the unit of the officer who signed the morning report did not in any fashion furnish a designation to prepare and sign the morning report to the officer who did so. To so hold would circumvent directly the provisions of AFM 171–6A, Ch 6, which provide that the organization commander himself shall make such designation. Since the accused's commanding officer was present, designation of officers to sign the morning report was governed by the provisions of AFM 171-6A, Ch 6, par la (1), since this provision does not restrict the designation by the commanding officer to officers of his own unit and since the signing officer testified that he was the official custodian of the morning report and was charged with its preparation, it may be presumed that he was properly designated to perform that duty pursuant to the cited section. Accordingly, the extract copy of the morning report in question was properly admitted in evidence. (Citing U. S. v. Masusock (No. 15), 1 USCMA 32, 1 CMR 32.) ACM S-6695, Barnett (1953) 13 CMR 718. The prosecution introduced in evidence certain service record entries, a special order, and two telegrams. The record disclosed that upon introduction of each document the trial counsel stated that the prosecution offered in evidence the particular document, that it was offered to the defense for inspection and possible objection with the request that a true copy be substituted for the record. Each time the defense counsel stated he had no objection and the law officer thereupon announced that a true copy of the particular document "will be received in evidence" and "a true copy may be substituted therefor." The trial counsel thereupon read the contents of the particular document. Held: The procedure followed met the minimal standards to qualify the exhibits for admission into evidence, place them before the court-martial members for their consideration, and incorporate them properly within the record on appeal. It was not necessary that the trial counsel be sworn as a witness at the time he read the contents of the documents to the court, inasmuch as once the documentary evidence is received in evidence, its contents are before the court whether read by trial