present case the accused judicially admitted that he knew he was involved in a collision, that he stopped, that he attempted to get out of the car but could not open the door, that he turned down the window, that he looked to the rear to determine the nature of the object he had collided with and that seeing nothing he drove on. This testimony effectively eliminated any possibility that knowledge was an issue in the case and the accused is not in a position to contend that the law officer erred or that he suffered any prejudice.] United States v. Russell (No. 2652), 3 USCMA 696, 14 CMR 114, reversing CM 359681, Russell, 9 CMR 410. [See 5 Am Jur, Automobile, § 781.] On a trial for leaving the scene of an accident, the law officer failed to instruct on the matter of knowledge by the operator of the vehicle that he had been involved in an accident. After a man had been struck by an automobile, a constable came upon the accused parked by the side of the road a considerable distance from the scene. Observing damage to the front of the car, the constable inquired into its cause and the accused explained that it had been damaged when moved from its parking place. Later the accused stated the damage must have been caused by a rock thrown by a passing truck and in his final version of the cause of the damage he stated that his windshield had been broken as he traveled along the highway and after recovering from the shock of the incident he stopped and walked back along the road but finding nothing he assumed the damage had been caused by a rock and continued on his way. A companion testified that when the windshield shattered the accused exclaimed that they had hit something and stopped and got out and walked back but found nothing so they continued on their way. From his description of the place where they stopped, it must have been at least nine hundred yards from the scene of the accident. Held that: - the absence of any requirement of knowledge from the statute governing the offense of leaving the scene of an accident eliminates knowledge as an essential element. In such a situation there is no requirement that knowledge be set out in the indictment or established by the prosecution as part of its case. (Citing Woods v. State, 15 Ala App 251, 73 So 129; Bevil v. State, 139 Tex Crim 513, 141 SW2d 362; Commonwealth v. McMenimon, 295 Mass 467, 4 NE2d 246; LoBiondo v. Allan, 132 NJL 437, 40 A2d 810: People v. Roche, 49 Cal App2d 459, 121 P2d 865; People v. Fodera. 33 Cal App 8, 164 P 22; State v. Ray, 229 NC 40, 47 SE2d 494: People v. Thompson, 123 Cal App 726, 12 P2d 81; Olson v. State, 36 Ariz 294, 285 P 282; State v. Masters, 106 W Va 46, 144 SE 718.) This does not mean that the accused can be convicted of a violation regardless of his knowledge or lack thereof. It means simply that, when the proof indicates that the operator of a motor vehicle has been involved in a collision in which damage to person or property has resulted, he is required to stop and comply with the other sections of the statute requiring him to make known his name and address, or to assist an injured person. He is not precluded from showing that no duty arose in a particular instance because of lack of knowledge of the accident. When this defense is raised by the evidence the issue must be submitted to the triers of fact under proper instructions. (Citing Olson v. State, 36 Ariz 294, 285 P 282.) [Latimer, J., concurring in the result expressed the view that knowledge is an essential element of the offense of leaving the scene of an accident. He stated that although the form specification for the offense shown in the Manual does not include a separate allegation of knowledge the issue should not be decided by the contents of a form which is intended only as a guide. The fact that a form is provided does not support a conclusion that it is comprehensive and defines adequately the substance of offense. Its purpose is to assist in preparing a specification, but the elements of the offense must be determined by substantive law and not by forms. Furthermore, the assertion that the form specification has the force and effect of a punitive statute and thus delineates the elements of the offense is at variance with language used in other decisions of the court. (See U. S. v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17; U. S. v. Smith (No. 887), 2 USCMA 197, 7 CMR 73.)] it is evident that the specification form for the offense of leaving the scene of an accident set out in the Manual is predicated upon the provisions of sec 40-609, District of Columbia Code. Inasmuch as these provisions do not require knowledge on the part of an operator that he has been involved in an accident, under the authority of the cases cited above, knowledge is an affirmative defense requiring instructions only when reasonably raised by the evidence. (Citing U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45.) no issue of knowledge was raised by the evidence and there was no obligation upon the law officer to instruct thereon. The accused was aware that his windshield had been struck and shattered by something and under any view of the hit and run statutes the duty then arose for him to stop immediately, determine the cause of the damage and render such assistance as was within his power to any person who might have been injured. Accepting as true the accused's statement that he did stop and walked back a ways after he had recovered from the shock of the accident, it is clear he stopped at a point too far removed from the accident to determine what had happened or otherwise comply with his duty. (Distinguishing U. S. v. Simmons (No. 505), 1 USCMA 691, 5 CMR 119; U. S. v. Majia (No. 1289), 2 USCMA 616, 10 CMR 114; U. S. v. Benders (No. 1512), 2 USCMA 620, 10 CMR 118.) [Latimer, J., concurring in the result stated that the accused by his trial tactics, theory of the case, and open court admissions of his counsel eliminated any necessity for the law officer to consider knowledge when outlining the elements of the offense since the element of knowledge was established by the extrajudicial statements of the accused to the constable, and to the military police, by his reporting the accident to protect his insurance, by his voluntary preparation of a formal police report which was filed at the local police station, and by the testimony of his companion. Further the tactics of the defense counsel showed that the defense was that the accused knew he had an accident, stopped and went back and investigated and found no evidence of the nature of the obstacle struck and then drove on.] United States v. Eagleson (No. 2353), 3 USCMA 685, 14 CMR 103, reversing ACM 5666, Eagleson, 11 CMR 893. [See 5 Am Jur, Automobiles $ 781.] § 67.1. Generally. § 67. Unauthorized Use A specification charged that the accused "being at that time the driver of a government vehicle, did . . . on or about 1 June 1952, wrongfully and unlawfully accept from" a certain enlisted man, the sum of thirty dollars to transport a Korean female in a government vehicle. Held that: -such specification sufficiently alleges a disorder in violation of UCMJ, Art 134. An assigned truck driver is not authorized to request and accept money for transporting passengers in a government vehicle, be they authorized or unauthorized. That is using government property for private gain and it is contrary to law, regulations, and customs of the service. an instruction by the law officer with respect to the elements of the offense that first, the accused was the driver of the government vehicle, second, that he wrongfully and unlawfully received the sum of thirty dollars from the enlisted man in question, third, that he received the thirty dollars as compensation for transporting a Korean female in the government vehicle, and fourth, that under these circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces, sufficiently covered the offense charged. The acts enumerated in the instruction were wrongful and would have appreciable and adverse impact on order or discipline. -in view of the fact that the act of the accused in obtaining personal gain by use of a government vehicle was more closely related to the offense of graft than a simple disorder, the authorized punishment for the alleged offense was that prescribed for graft (MCM, 1951, par 127c). Furthermore, the fact that the law officer instructed the court on the maximum sentence for the crime of bribery was not prejudicial to the accused, since the offense of graft carries the same maximum punishment as does bribery. [Quinn, C.J., dissented with respect to the punishment authorized.] United States v. Alexander (No. 2334), 3 USCMA 346, 12 CMR 102, affirming CM 355673, 6 CMR 208. § 67.11. Instructions to court. See United States v. Alexander, supra § 67.1. 8 67.17. Sentence and punishment. See United States v. Alexander, supra, § 67.1. MUTINY AND SEDITION § 11. Included Offenses. § 21. Evidence, Weight and Sufficiency. § 26. Instructions to Court. § 11.5. Riot. § 11. Included Offenses A mutiny committed by violence, where alleged as a joint offense by several participants, would include riot as a lesser offense if the facts in the record raised it reasonably as an issue. However, under the circumstances, the evidence did not require the law officer to submit that included offense to the court. (Citing U. S. v. Duggan, 4 USCMA 396, 15 CMR 396.) United States v. Mendiola (No. 3633), 4 USCMA 403, 15 CMR 403, affirming CM 361674, 10 CMR 463, 3 Dig Ops No. 1, MUTINY § 21.1. See also United States v. Duggan et al, infra § 26.7. The accused was charged with mutiny under a specification alleging that the accused, with intent to override lawful military authority, did, in concert with three named prisoners create a disturbance by barricading the entrance door to a cell block, breaking windows and causing other damage to property in the prison enclosure, and threatening to strike any of the prison guards who attempted to enter the cell block. The evidence established the conduct of the accused to be as alleged. By exceptions and substitutions, the court found that the accused did "participate in a riot" by unlawfully assembling with the other three named prisoners "for the purpose of resisting the police of disciplinary guards" and in furtherance of such purpose barricaded the door, broke the windows, damaged property, and threatened the guards, as alleged. The court found the accused not guilty of a violation of UCMJ, Art 94, but guilty of participating in a riot in violation of Art 116. Held: Within the pleadings and proof in this case the offense of riot found is properly lesser than and included in the offense of mutiny as charged. Breach of the peace is lesser included in both the offense of mutiny by violence or disturbance and the offense of riot. (Citing MCM, 1951, appx 12, Table of Commonly Included Offenses.) The distinction between mutiny and riot exists in the nature of the purpose or intent involved in each offense and in the number of participants required to constitute a riot. Although it has often been stated that mutiny and riot are separate and distinct offenses (CM 267878, Lumpkins, 44 BR 149, 165; CM 265399, McGary, 43 BR 1, 10; CM 254692, Lamar, 35 BR 299, 316), it has also been recognized that under varying circumstances, acts of riotous conduct can develop and increase to the level of the offense of mutiny. (Citing CM 267382, Terry, 43 BR 381, 389; CM 265399, McGary, 43 BR 1, 13.) In applying the test for determining lesser included offenses, viz., whether the offense found is included in and can be carved from the phraseology of the specification, to the instant case, there is no difficulty in concluding that the offense found was lesser included and encompassed within the allegations of the specification of the charge of mutiny since the only alteration in the specification was the inclusion of the legal conclusion that the accused participated in a riot and the substitution of "the purpose of resisting the police of disciplinary Barracks Guards" for the "intent to override lawful military authority" as alleged. A purpose to resist the police of the disciplinary barracks is obviously lesser in degree of malevolence than an intent to override their lawful authority. Under the facts and circumstances here present is embraced the latter (Citing Dig Op JAG, 1912-1940, Section 424, p 288.) ACM 6582, Ragan (1953) 10 CMR 725. § 11.7. Disobedience of order. Eight accused were charged with, acting jointly and in pursuance of a common intent, voluntarily joining in a mutiny against the lawful military authority of a named officer, and with intent to usurp, subvert and override for the time being, in concert with each other, refusing to obey the lawful command of the named officer, their superior officer, to go to work. The charge was under AW 66, and but one specification was involved. The court found the accused guilty, under AW 64, of refusal to obey the lawful command of the named officer, their superior officer, to go to work. Upon petition for new trial, one of the accused alleged that a violation of AW 64 could not have been, under MCM, 1928, a lesser included offense of a mutiny charge, citing CM 125432 (1919), Dig Op JAG 1912-40 § 424. Held: "The proper interpretation of the rule announced in Section 424, concerning CM 125432, is that if mutiny is charged, disobedience will not be a lesser included offense unless the specification is so framed that a sufficient allegation of disobedience remains in the specification despite the fact that the portion alleging the concerted action (necessary to a mutiny conviction) is removed." Petition for new trial denied. Action of TJAG, Army, Petition of Lombardi for New Trial, JAGY CM 264967, 15 July 1953. § 21. Evidence, Weight and Sufficiency § 21.1. Generally. Five accused were found guilty of mutiny. They were prisoners in a disciplinary barracks compound. The record showed that a group of prisoners began to throw coal at the orderly room and that efforts of the guards in the compound to quiet them were to no avail. Later when the commanding officer of the compound arrived, he entered the compound to talk to the prisoners and they threw rocks and stones at him. Although he ordered them to cease, his order went unheeded, and he was struck by flying coal and forced to retreat outside the gate. Other guard personnel, who attempted to enter the compound were similarly treated. Thereafter, the mob which had gathered at one end of the compound surged toward the gate. Various prisoners tore off barracks doors and smashed windows and some of them set fire to the orderly room. Subsequently |