report to a specified place of duty. He failed to report in response to the orders and remained absent for an additional period. In addition to being charged with the initial absence, Charge I, the accused was charged with desertion, Charge II and, knowingly failing to obey a lawful order, Charge III. He was found guilty of Charges I and III and of the lesser offense of Charge II, absence without leave. Held: A contention that the law officer erred in failing to give a requested instruction that there was a merger in law of Charges II and III was overruled. Two or more offenses may be included within a single transaction (Blockberger v. United States, 284 US 299, 76 L ed 306, 52 S Ct 180). Where the same act or transaction is relied upon as constituting two separate offenses, the test to be applied to determine whether there are two offenses or only one, is whether each offense requires proof of a fact or element not required by the other. The different element in Charge III as compared with Charge II is disobedience of an affirmative order to report. The different element as to the Absence, Charge II, is the element of want of proper authority to be absent. The elements being distinct the offenses are separate and distinct, and multiple charges are proper.

Held also: The offense of knowingly failing to obey the lawful stragglers transfer order is not only a separate offense from that of the related unauthorized absence but is also independent and free of the limitations of footnote 5, Section 127c, MCM, 1951, p 221, as to the maximum punishment which may be given. Accordingly the law officer did not err in failing to instruct that footnote 5 was applicable to Charge III. (Citing United States v. Buckmiller (No. 492), 1 USCMA 504, 4 CMR 96; United States v. McNeely (No. 494) 1 USCMA 510, 4 CMR 102; ACM S-1932, Fletcher, 2 CMR 792.) In United States v. Buckmiller (No. 492), 1 USCMA 504, 4 CMR 96, a case involving an absence by failing to go to an appointed place of duty, the court of Military Appeals rejected a literal and technical interpretation of footnote 5 stating that, if so interpreted, in no case could accused be convicted of knowingly failing to obey a lawful order if the circumstances of the offense also involved in any way failing to go to an appointed place of duty. Applying the "gravamen of the offense" comparison of the majority opinion in the Buckmiller case and its companion case, United States v. McNeely (No. 494), 1 USCMA 510, 4 CMR 102, the gravamen of the offense under Charge III is not an absence without leave in violation of UCMJ, Art 86(3), which contemplates a failure of the accused to be at his routine place of duty as prescribed by the routine leave and liberty regulations applicable to his assigned duty; the gravamen of the offense is the disrespect for authority as evidenced by the disobedience of the direct, personal order of a superior, which order was in writing and acknowledged by the signed receipt of the accused. Applying the rule of the concurring opinion in the Buckmiller case, the accused was not charged with a failure to obey an order for the purpose of permitting an imposition of a greater sentence. Finally applying the rule of ACM S-1932, Fletcher, 2 CMR 792, the order in this case was not to go to a place

which the accused had an existing duty to go to, it became his duty to report by virtue of the order given and not by some previous order. Accordingly on the basis of precedent regardless of which of the rules is adopted for the interpretation of footnote 5, the offense of knowingly failing to obey the lawful straggler's transfer order, is not only a separate offense from that of the related unauthorized absence of Charge II but is also independent and free of the limitations of footnote 5 as to the Maximum Punishment which may be given. NCM 216, Rodriguez (1953) 11 CMR 579.

Under one charge the accused was charged with accepting money for advance information on competitive examinations and under another charge he was charged with violating a lawful general regulation by revealing information contained in competitive examinations. Held: While the specifications indicate that two aspects of the same transaction have been charged there is no error in this procedure. It is prejudicial to good order and discipline for an officer to accept money from an enlisted man for action in connection with an official matter whether or not such act violates a lawful general regulation and on the other hand the violation of a lawful general regulation is an offense whether or not induced or rewarded by money payments. (Citing MCM, 1951, par 76a (8).) NCM 228, Conway (1953) 11 CMR 625.

§ 37.1. Generally.

IV. ACTION UPON CHARGES

§ 37. In General

At the trial of the accused two additional charges on an unauthenticated and unidentified sheet of paper attached to the charge sheet and marked as "Page 2a" were read in the trial and the accused pleaded guilty thereto. There was no showing that the additional charges were ever referred to trial either by written or oral directive, but they were read in a trial commencing two days after the offenses were alleged to have been committed. UCMJ, Art 35, re

quires that charges be served on the accused. The record shows that the accused was served with charges on 31 December 1952, but the additional charges allege offenses to have been committed on 10 January 1953.

Held that:

-the fact that these additional charges were not sworn to was error but was not prejudicial, as the accused did not object (United States v. May (No. 241), 1 USCMA 174, 2 CMR 80; United States v. Marcy (No. 260), 1 USCMA 176, 2 CMR 82).

— there is no directive in the Code or Manual as to how a case shall be referred to trial and such a reference may be oral (United States v. Emerson (No. 77), 1 USCMA 43, 45, 1 CMR 43, 45). There should however be a showing that the charges were referred to some court by a proper convening authority. Otherwise there is no safeguard against the additional charges being inserted by a person not authorized to refer them to trial. The accused is

entitled to have charges against him considered by the commander exercising immediate jurisdiction over him and by the officer authorized to convene the court before which he is tried. Both of these authorities have considerable discretion as to the type of disciplinary action to be taken. It is at this point that decision is made as to whether there shall be a trial and by what type of court. Guidance for the exercise of their discretion is contained in the Manual for Courts-Martial, particularly in pars 30, 32, and 33 and without a showing that the charges were properly referred to a court-martial for trial there is no guarantee that consideration has been given to the charges in accordance with the applicable paragraphs of the Manual. The fact that the accused pleaded guilty indicates that he knew of the charges and admitted the offenses and the fact that the convening authority approved the sentence ratifies the trial on the additional charges. There is, however, no assurance that he would have ordered to trial what he approved as a "fait accompli". He might have dismissed the charges, handled them under UCMJ, Art 15, or referred them to a summary court.

- there was no showing that the charges were ever served on the accused since a statement of an impossible act cannot be accepted as compliance with the cited provisions of the Code.

the irregular manner in which accused was brought to trial on the additional charges shows such a lack of compliance with the procedures required by the Code and Manual that the findings on the additional charges should not be affirmed. (Citing United States v. Peterson, NCM 10, 1 CMR 467.) The fact that there was no showing that the additional charges were in any way ordered to trial coupled with the lack of any showing that they were served on the accused and the fact that they were allegedly committed only two days before the trial shows a deprivation of rights of the accused established by the Uniform Code. (Distinguishing United States v. Morgan, NCM 1-52-S-661, decided 16 October 1952; United States v. McCready, ACM 149, 1 CMR (AF) 143; United States v. Casey, CM 198109, 3 BR 159; United States v. Reis, CM 234118, 20 BR 249.) In the case of United States v. Morgan, NCM 1-52-S-661, decided 16 October 1942 the conclusion was reached that since the accused failed to object to the fact that he was arraigned on unsworn charges not shown to have been referred to trial by an officer authorized to do so, the accused waived the errors and that the convening authority, by approving the sentence, ratified the referral of the additional charges for trial by the court-martial which tried the case. However, the record in that case showed that the charges read in the court were served on the accused some fourteen days after the commission of the last offense and the accused thus had ample opportunity to ascertain whether the charges had been referred properly for trial, to reflect upon the deviations from the established procedure and to decide upon his course of action before and during the trial while in the instant case the additional charges were never served on the accused and the trial took place

only two days after the offenses were alleged to have been committed. It has also been held that the failure of the convening authority to sign a reference for trial was a defect in preference of charges rather than a jurisdictional defect (United States v. McCready, ACM 149, 1 CMR (AF) 143; United States v. Casey, CM 198109, 3 BR 159; United States v. Reis, CM 234118, 20 BR 249) but in those cases there is a showing that the convening authority had orally or by initialing, ordered the case to trial while in this case there was no showing that the charges were in any way ordered to trial. NCM 204, Newman (1953) 9 CMR 604.

An incriminatory statement obtained without full compliance with UCMJ, Art 31 was considered when trial by general court-martial was recommended. The statement, however, was not introduced in evidence against the accused. However, the defense contended that since the investigating officer relied on illegal evidence in making his recommendation for trial the court-martial was convened in violation of military due process in that the evidence indicated by the report of investigation did not warrant trial by general courtmartial. Held: Since the court found the accused guilty without considering the statement, it cannot be said that the convening authority usurped his authority in referring the charge for trial or that he referred the charge for trial on insufficient evidence. Although Art 31 prohibits the taking of a statement in violation of that Article, it further states that such a statement cannot be received in evidence against the accused in a trial by court-martial and it was not received in evidence in this trial. The word “evidence" as used in the provision of UCMJ, Art 34 that the convening authority shall not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under the Code and is warranted by evidence indicated in the report of investigation does not mean that the convening authority must find "legally admissible evidence" before he may refer the charge for trial by general court-martial. The convening authority must only determine that the evidence is probably sufficient to show an offense has been committed and the evidence shows that the accused probably committed the offense. Article 34 means that the convening authority should only refer the charges to a general court-martial when he has determined that the charge alleges an offense under the Code and the evidence along with the gravity of the charge is sufficient to warrant a trial by general court-martial rather than some less severe disposition. To hold otherwise would require the convening authority to determine that the accused was guilty beyond any reasonable doubt before he could refer the charges to a general court-martial. NCM 276, Yuille (1953) 14 CMR 450.

The first indorsement to the charge sheet referred the case to a general court-martial other than the one for which the accused was tried. However, prior to trial the convening authority, in a written communication to the trial counsel, expressly stated that the court designated in the original reference for trial was incorrectly identified and that the reference should properly reflect that the case was referred

to another court (i.e., the one before which the accused was tried). Held: A reference for trial can be corrected or, in the alternative, a case, referred for trial, can thereafter be referred to another court. The fact that counsel for defense objected to correction of the original reference for trial is without significance, inasmuch as an accused has no vested right in the particular tribunal before which he is to be tried (ACM S-61, Newman (BR), 1 CMR(AF) 554, 556) nor in the individuals who shall compose that forum (ACM S-45, McCaffity (BR), 2 CMR (AF) 25, 30). ACM 8430, Palmer (1954) 15 CMR 933.

Initialing by convening authority of additional charges as sufficient reference to trial, see CGCMS 19741, Douglas, supra § 5.7.

§37.11. Service of charges on accused.

Failure to show charges were served on accused, see NCM 204, Newman, supra § 37.1.

§37.51. Direction that case be treated as not capital.

In his pretrial advice and recommendations, the staff judge advocate noted that a capital offense was involved and recommended that the charges be treated as noncapital. The recommendation was approved in writing by the convening authority and accompanied the charges and became a part of the record. Held: The convening authority's approval of the recommendation of the staff judge advocate, endorsed upon the staff judge advocate's pretrial advice, was sufficient to constitute a written direction that the case be treated as noncapital. Any error in not following the normal procedure was one of form and not of substance. Although the language of par 33j(1), MCM, 1951, that a direction that a capital case be treated as not capital be included in the indorsement to the charge sheet referring the charges for trial is permissive rather than mandatory, the better practice is to comply with such provision. However, failure to do so does not require a holding that the case is capital. Nor does the failure to follow precisely the prescribed procedure render the depositions in question inadmis[Per Latimer, J., and Brosman, J.] [Quinn, C.J., dissented.] United States v. Anderten (No. 3122), 4 USCMA 354, 15 CMR 354, affirming ACM 6310, Anderten, 9 CMR 800.

sible.

Indorsement referring case to trial by special court-martial but not expressly stating offense was to be treated as non-capital, see ACM S-6466, Wilkerson, CRT-M § 43.5.

§41.1. Generally.

gence.

§ 41. Investigation of Charges

The accused was charged with killing another by culpable negliAn investigation inquiring into the circumstances of the death of the deceased was substituted for the pretrial investigation. There was no showing that there was not substantial compliance with par 34, MCM, 1951, or UCMJ, Art 32, and there was no objection to the sufficiency of the pretrial investigation raised at the trial. Held: By failing to make appropriate motion or objection at the trial stage, the defense has waived any right to attack the sufficiency of the pre