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DEPOSITED BY THE

UNITED STATES OF AMERICA
SEP 20'48

COURT-MARTIAL ORDER NO. 7-1948

JULY 1948

Charges and specifications: multiplicity: charges covering same transaction not to be preferred.

A general court martial acquitted an accused of the charges of (II) "Carnally and unlawfully knowing a female under the age of sixteen years"; (III) "Assault with intent to commit rape"; (IV) "Commission of a lewd or lascivious act upon or with the body of a child under the age of fourteen years" (5 specifications); (V) “Copulation of the mouth of one person with the sexual organ of another"; (VI) "Indecent exposure" (6 specifications); (IX) "Stealing property of the United States intended for the naval service thereof"; and convicted him of the charges of (I) "Rape"; (VII) “Exhibiting an obscene writing" (4 specifications; specifications proved in part); (VIII) “Exhibiting an obscene photograph" (4 specifications; specifications proved in part); (X) "Knowingly and wilfully applying to his own use property of the United States intended for the naval service thereof"; and (XI) "Scandalous conduct tending to the destruction of good morals" (12 specifications; specifications 1, 2, 3, 4, 5, 10, and 12 not proved; specifications 6, 7, 8, 9, and 11 proved).

The single specification under Charge I alleged that the accused, "did, on or about September 11, 1947, at or near the village of Toto, Guam, Marianas Islands, forcibly make an assault in and upon the body of one (A), who was not the wife of him, the said (accused), and did feloniously and against her, the said (A's) will, forcibly ravish, and carnally and unlawfully know her, the said (A)." The single specification under Charge II alleged that the accused, "did, on or about September 11, 1947, at or near the village of Toto, Guam, Marianas Islands, carnally and unlawfully know one (A), a female then under the age of sixteen years, to wit, six years of age, not the wife of him, the said (accused)." The single specification under Charge III alleged that the accused, "did, on or about September 11, 1947, at or near the village of Toto, Guam, Marianas Islands, feloniously, forcibly and against her will, assault one (A), a female child of six years of age, with intent to commit the crime of rape upon her, the said (A)." The single specification under Charge V alleged that

the accused, “did, on or about September 11, 1947, at or near the village of Toto, Guam, Marianas Islands, wilfully and knowingly, in an indecent, lewd, and lascivious manner, copulate the mouth of one (A), a female child of six years of age, with the penis of him, the said (accused).”

It was noted that the single specifications under Charges I, II, III, and V were identical to specifications 1, 2, 4, and 6, respectively, under Charge XI. While the law permits as many charges to be preferred as may be necessary to provide for every possible contingency in the evidence (N. C. & B., sec. 19), it is contrary to the policy of the Navy Department to prefer a multiplicity of charges covering the same transaction unless the legal character of the offense cannot be precisely known or defined until developed by the proof or there are aggravating circumstances distinguishing it from the ordinary case contemplated by the Articles for the Government of the Navy (C. M. O. 2, 1939, 154, 155; Naval Digest, 1916, p. 66, 67, secs. 61, 68). Inasmuch as the accused was acquitted of Charge V and specifications 1, 2, and 4 under Charge XI were found not proved, the substantial rights of the accused were not prejudiced thereby (C. M. O. 2, 1939, 153).

The record of proceedings showed that the accused objected to Charges IV, V, and VI, on the ground that they were not charges provided for in naval law, and that the court did not sustain the objections. The offenses preferred under those charges were of a scandalous nature, committed in breach of the Penal Code of Guam (N. C. & B., sec. 309), and were also pleaded as specifications 5 to 12, inclusive, under Charge XI.

Offenses of a scandalous nature for which no specific charges are provided should be laid under the charge of "Scandalous conduct tending to the destruction of good morals" (N. C. & B., sec. 59). Since there are no specific charges provided for in Naval Courts and Boards such as were identified as Charges IV, V, and VI, the offenses preferred under those charges were improperly pleaded. They were properly pleaded as specifications 5 to 12, inclusive, under Charge XI (C. M. O. 5, 1946, 193). The court erred, therefore, in not sustaining the objections to Charges IV, V, and VI. Inasmuch as the accused was acquitted of those charges and the offenses were properly pleaded under the general charge, his rights were not prejudiced (C. M. O. 3, 1944, 540). The convening authority, in his remarks, stated that while it may be preferable to charge rape under the general charge, it did not appear that the use of the specific charge was error. The Secretary of the Navy having, with the approval of the President of the United States, authorized the specific charge of "Rape," this charge is now used as set forth in Naval Courts and Boards, 1937, Section 121, instead of the general charge (C. M. O.'s 1, 1948, 19; 8, 1947, 264; 12, 1937, 6). The accused stood convicted of Charges (I) "Rape"; (VII) "Exhibiting an obscene writing" (4 specifications; specifications proved

in part); (VIII) “Exhibiting an obscene photograph" (4 specifications; specifications proved in part); (X) “Knowingly and wilfully applying to his own use property of the United States intended for the naval service thereof"; and (XI) "Scandalous conduct tending to the destruction of good morals" (12 specifications; specifications 1, 2, 3, 4, 5, 10, and 12, not proved; specifications 6, 7, 8, 9, and 11 proved). (File : MM-Gardner, Wilbur “W”/A17-20, 8 March 1948.)

Convening authority: determination of successor in office.

A general court martial convicted an accused of the charge of "Absence from station and duty after leave had expired" (specification proved by plea).

It was noted that the precept creating the court was dated October 15, 1947, that the convening authority's action on the record was dated December 26, 1947, and that both were signed by Rear Admiral A, U. S. Navy, Commander Destroyers, Atlantic Fleet, U. S. Fleet. It was noted further that the order for trial was dated December 8, 1947, and was signed by Captain B, U. S. Navy, as Acting Commander Destroyers, Atlantic Fleet, U. S. Fleet.

Paragraph (1), Article 172, Navy Regulations, provides as follows:

"Should the flag officer commanding die, become incapacitated, or leave his station permanently before being relieved by a successor appointed by the Secretary of the Navy, the line officer next in rank in the fleet or squadron shall succeed to the command and discharge its duties until relieved, in addition to his regular duties; and he shall have all the authority and responsibility of a flag officer in command as if assigned to that duty in terms by the Navy Department."

Within the meaning of Section 479, Naval Courts and Boards, the succession to office is determined by Article 172, Navy Regulations. Under the conditions specified in paragraph (1) of said Article 172, the line officer next in rank succeeds to the office, and has the same authority as one specifically ordered to that duty by the Navy Department. Under the conditions stated in paragraphs (3) and (4), there

is no succession to the office (C. M. O. 4, 1934, 10).

It was apparent from the record that the flag officer commanding in this instance was neither dead nor absent from his station permanently before being relieved by a successor appointed by the Secretary of the Navy. Furthermore, the Judge Advocate General has been advised that Rear Admiral A was not incapacitated on the date shown on the order for trial. There was, therefore, no succession to office. Inasmuch as the charge and specification were not formally preferred against the accused by the convening authority the court was without jurisdiction (N. C. & B., sec. 327, Cf. C. M. O. 2, 1944, 366). Accordingly, the proceedings, findings and sentence, and the action of the convening authority thereon, were set aside.

Attention was invited to the fact that the accused might again be brought to trial for the offense specified, and could not plead former jeopardy inasmuch as, to constitute former jeopardy, the court before which the former proceedings were conducted must have been a duly constituted and legally competent court (C. M. O. 1, 1948, 34). MM-Cornett, Ralph "E"/A17-20, 22 March 1948.)

Delivery of naval personnel to state authorities for trial.

(File:

The area comprising the U. S. Naval Base, post office address Portsmouth, New Hampshire, being entirely located within the geographical limits of the State of Maine, is beyond the jurisdiction of the civil courts of New Hampshire and warrants issuing from such courts are of no legal effect within the State of Maine. Consequently, naval personnel located at the U. S. Naval Base, "Portsmouth, New Hampshire" may not be delivered to civil authorities of the State of New Hampshire for trial except as provided in Appendix C-9, Naval Courts and Boards.

Extradition proceedings as contemplated by Appendix C-9, Naval Courts and Boards, safeguard the right of an individual not to be summarily placed within a particular jurisdiction when the individual is, in fact, beyond the jurisdiction of the court desiring to try him on a criminal charge. The Navy Department, as a matter of law, may not waive the right of the individual in this regard. Alnav 145-47 is an administrative directive issued for the purpose of implementing the delivery of naval personnel, in a non-naval disciplinary status, to civil authorities without further authority from the Secretary of the Navy in cases in which such personnel are at an activity within the confines of a particular jurisdiction. Any modification of Alnav 145-47 purporting to authorize the delivery of naval personnel for trial when such personnel are located beyond the jurisdiction of the court issuing a warrant for their arrest, would exceed the authority contained in Naval Courts and Boards, which sets out the substantive law in this regard.

Naval personnel attached to the U. S. Naval Base, post office address "Portsmouth, New Hampshire," who are apprehended and arrested in New Hampshire and return to the base under bail, may be granted leave of absence by the commanding officer to appear for trial in New Hampshire on the date set, as provided in Appendix C-12, Naval Courts and Boards, without requiring a governor's requisition. Otherwise extradition proceedings are necessary in order to remove a man from Maine to New Hampshire for the purpose of criminal prosecution. (File: JAG: II: DMW: ad, 22 June 1948.)

Depositions: deponent and officer taking deposition to sign.

An accused was convicted by a general court martial of the charge of "Desertion." The record of proceedings showed that there was

admitted into evidence on behalf of the accused a document which purported to be a deposition by his wife. The interrogatories and crossinterrogatories were signed by the judge advocate of the court and Captain A, U. S. Marine Corps. Captain A was manifestly not the accused in the case nor was he shown as the defense counsel of record. Moreover, the replies of the witness were recorded on the original interrogatories and cross-interrogatories. Finally, the document in question did not show that the witness was first sworn and was not subscribed by either the deponent or the officer taking the deposition (N. C. & B., sec. 211 and app. F-17). The evidence was therefore incompetent and should have been excluded by the court. Inasmuch as the evidence was admitted on behalf of the accused and tended to corroborate his testimony given on direct examination, it could not be said that the error in admitting it was prejudicial to his rights or invalidated the proceedings. (File: MM-Garza, Henry/A17-20, 13

April 1948.)

Disobedience of written orders to be wilful.

An accused was convicted by general court martial of the charges of (I) "Unauthorized absence" (specification one, nolle prossed; specification two, proved by plea; additional specification under the charge, proved by plea); and (II) "Conduct to the prejudice of good order and discipline."

The single specification under Charge II alleged that the accused "* * * at the U. S. Navy recruiting station, Huntington, West Virginia, [having] been lawfully ordered by the officer in charge thereof to proceed in his own custody to the said receiving station as a Navy straggler under orders and to report not later than 1400, February 4, 1948 to the commanding officer thereof for appropriate disciplinary action and return to duty, and he, the said (accused), having acknowledged receipt in writing of said orders and having further acknowledged that he understood that failure to comply with the same would subject him to charges of deliberate disobedience of orders and further unauthorized absence, did wilfully disobey said orders to proceed and report."

In support of this specification the prosecution introduced entries from the accused's service record book showing that the accused was apprehended as a straggler at Huntington, West Virginia, and that he was issued appropriate orders to proceed in a disciplinary status and report to the station from which he was an unauthorized absentee. Also introduced was a duplicate original of the orders in question which contained, over the accused's signature, the following statement: "I hereby acknowledge receipt of the above orders. I have read the contents thereof and understand that failure to comply with these orders will subject me to a charge of deliberate disobedience of orders

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