ACTION OF THE SECRETARY OF THE NAVY

[C. M. O. 30-1918]

The record in the foregoing case was referred to the Chief of the Bureau of Navigation, who, on March 29, 1918, concurred in the action taken by the convening authority. The foregoing remarks of the Judge Advocate General are approved.

C. M. O. 30-1918

[P. 17] ABBREVIATIONS IN FINDINGS AND SENTENCE: IMPROPER USE OF. Where the rating of the accused is that of chief boatswain's mate, it is improper to indicate same either in the findings or sentence of the court by using the abbreviation C. B. M. The proper form is to spell the rating in full (File 26262-4093, J. A. G., Mar. 16, 1918; G. C. M. Rec. No. 37258).

ADMISSIONS IN OPEN COURT.

Shortly after the accused in a recent case had pleaded "not guilty" to the charges and specifications preferred against him, his counsel made the following statement to the court: "The accused, * would have entered a plea of guilty, if, in the judgment of his counsel, a conviction here on the charge as alleged would have been his protection against, in later years, a charge brought against him for the actual occurrence. He is charged, if you will notice in the specifications, with having forged a certain instrument in the name of T.---- S. K----, an instrument demanding the payment to him of the sum of $45. If you will follow me, we will make these admissions: The defendant will admit," etc. Counsel then proceeded to admit every allegation contained in the specification, substituting the amount of $75 for $45 and the name G. S. K.--- for that of T____ S. K____.

While the subject of admission pertains rather to civil suits than to criminal proceedings, still the fact appears established that admissions properly made by either party to a court proceeding are to regarded as being as much in the case as if they had been expressly proved. It is essential, however, that in a criminal proceeding such must be made by the defendant or else that he indicate in some manner his assent thereto if made by his counsel:

[P. 18] "A plea of guilty is a judicial confession and dispenses with evidence to prove the facts set forth in a specification. To a lesser extent an admission in open court of any material fact set forth in a specification when such admission is voluntarily made by the accused or by his counsel in his presence and with his express or implied authority, is a judicial confession of such fact and dispenses with the necessity of evidence to establish same" (C. M. O. No. 5, 1917, p. 6).

"A conviction of larceny cannot be predicated on the admissions of counsel, and it is an error to charge that counsel have admitted the stealing with felonious intent, and the only question is as to the value of the property" (People v. Hall, 48 N. W. 869).

"Where, in a criminal case, the counsel for the prisoner made certain admissions, it was held that the jury ought not to give to them the slightest weight" (14 Cent. Dig., sec. 1254 (c)).

"No admissions by accused's counsel of material averments are evidence against him, or a proper subject for the consideration of the jury" (Clayton v. State, 4 Tex. App. 515; 14 Cent. Dig., sec. 897 (n)).

"Statements contained in an unsworn petition, plea, or answer filed by defendant in a civil case, and signed by counsel only, would not in a criminal trial, be admissible against him as incriminating admissions, unless it affirmatively appeared that the counsel referred to was authorized to represent him in the civil case, and also authorized to make in his behalf the particular statements in question" (Farmer v. State, 28 S. E. 26; 100 Ga. 41; 6 Amer. Dig., Dec. Ed., sec. 410 (c)).

In some cases where the admissions made by counsel are not of so material and extensive a nature, it might be held that the accused being present and

[C. M. O. 30—1918]

making no objection to such action of his counsel, the consent or authorization may be implied, yet in a case such as the one under consideration, where the admissions cover the allegations set forth in the specifications in their entirety, it was the opinion of the Acting Judge Advocate General that no such implication should be inferred, but that it should be affirmatively indicated by the accused.

Counsel for the accused is not competent to plead for his client; such must be the personal act of the accused.

"A plea confessing himself to be guilty of crime should not be entered except with the express consent of the defendant given by him personally in direct terms in open court. Nothing should be left to implication, and his confession of guilt should be explicitly made by himself in person in the presence of the court" (People v. McCrory, 41 Calif. 458).

[P. 19] The aforementioned extensive and material admissions, made by counsel, are a judicial confession of the facts included therein, and in this case equivalent to a plea of guilty to the specifications, and being made by counsel without any indicated authority therefor are a nullity, and it was error on the part of the court, under the circumstances set forth, to have accepted and considered the same without the expressed assent thereto of the accused (File 26251-15817; G. C. M. Rec. No. 37417).

ADVERSE COMMENT: ON FAILURE OF ACCUSED TO BECOME WITNESS.

The reference of the judge advocate in his closing remarks to the fact that the accused failed to take the stand as witness in his own behalf is improper and contrary to the spirit of the act of March 16, 1878 (20 Stat. 30), which provides as follows:

"That in

proceedings against persons charged with the commission of crimes, offenses and misdemeanors, in courts martial, and courts of inquiry, * * the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him."

But where the proofs of guilt are so clear and conclusive that the cause of the accused could not have been harmed by such reference, the proceedings need not be set aside. (See Naval Digest, 1916, p. 647, sec. 11; File 26251-14575; G. C. M. Rec. No. 36585.)

IMMEDIATE SUPERIOR IN COMMAND: RETURN OF RECORD OF PROCEEDINGS OF SUMMARY COURT MARTIAL BY, FOR REVISION.

The immediate superior in command returned the record of proceedings in a summary court martial case to the convening authority with the direction to reconvene the court for a reconsideration of the sentence, and upon the conclusion of proceedings in revision, to revoke his (the convening authority's) action upon the proceedings, finding, and sentence, substitute therefor a new action, and return the entire record of proceedings to the immediate superior in command.

The immediate superior in command may not properly return a record of a summary court martial directly to the court for revision, as such power lies only in the convening authority. It has been held by the Department, however, that somewhat the same effect can be realized by a return of the record to the commanding officer, with the views of the superior expressed thereon. The above attitude was expressed in a letter of March 22, 1906, which is quoted below, in which the term "commander in chief" is to be regarded as "immediate superior in command." Page 508, section 16, [P. 20] Naval Digest, 1916, is possibly somewhat misleading unless read in connection herewith:

File 2214-13

M1

NAVY DEPARTMENT, Washington, March 22, 1906.

SIR: The Department is in receipt of your letter of the tenth instant, in which you state that it not infrequently happens that, "as commander in

[C. M. O. 30-1918]

chief and in reviewing the records of summary courts martial," you are of the opinion "that the sentence is entirely inadequate" and ask whether or not, in such cases, you can "legally refer the record of proceedings back to the convening authority directing that he reconvene the court for revision or reconsideration of the sentence."

In reply you are advised that the Department considers that you have substantially the power suggested. Approval by the commander in chief of the proceedings and sentence of a summary court being essential to their validity, it is the right of that officer, if he does not approve, to return the record to the convening authority, with a statement of the grounds of disapproval and with the suggestion that the action formerly taken on the record be reconsidered, and, in appropriate cases, that the court be reconvened.

In so disapproving and returning the record, however, the commander in chief acts not strictly in a military but in a judicial capacity. The action does not take the complexion of a military order. The officer who convened the court and the court itself, have, likewise, distinctively Judicial duties and responsibilities. The person accused, and the service, are entitled to the benefit of the individual judgment of the members of the court, of the convening authority, and of the commander in chief. In case of a record so returned, the court and the convening authority may, and if their sense of duty dictates, should, adhere to the action originally taken in the premises.

Further, the general trend and effect of the statutes and of the regulations on the subject (arts. 32 and 33 of the Articles for the Government of the Navy; arts. 1829, 1830, and 1831 of the Navy Regulations) are in the direction of conferring upon higher authority the power to mitigate or remit, but in no case to increase or render more severe, sentences imposed by summary courts. In view of this, the Department considers that while, as above indicated, the commander in chief doubtless has the legal power to return the records of summary court martial for the purpose stated in your letter of inquiry, the power is one to be carefully exercised. It should be invoked only for the purpose of preventing flagrant [P. 21] failure of justice of a character clearly prejudicial to the interests of the service.

The Department still considers that in such cases the procedure outlined above should be followed (File 26287-4487, Sec. Nav. Mar. 12, 1918; S. C. M. Rec. No. 11654).

SPECIFICATION INTENDED FOR TRIAL IN JOINDER: CONFUSION RESULTING FROM USE OF, IN CASE OF SINGLE ACCUSED.

A---- B----, chief water tender, U. S. Navy, was recently tried by general court martial for a certain offense. A form of specification intended for trial in joinder was improperly used by the convening authority. The court recorded its findings in part, as follows:

"The specification proved in part, proved except the words ‘A---- B---chief water tender,' which words are not proved and for which the court substitutes the words 'a person unknown,' which words are proved," and acquitted the accused of the charge.

A.......... B---- was the accused, and for the court to find the specification proved against some person other than the accused was most irregular. If, from the evidence adduced, the accused was innocent of the allegations set forth in the specifications, the finding upon the same should have been "not proved" (File 26262-4074, J. A. G. Mar. 12, 1918; G. C. M. Rec. No. 37193).

[C. M. O. 30-1918]

SPECIFICATION INTENDED FOR TRIAL IN JOINDER: EFFECT OF USE OF, WHERE SINGLE ACCUSED IS TRIED.

In a recent case the second specification under "Charge-Scandalous conduct tending to the destruction of good morals," set forth on page 117, Naval Courts and boards, 1917, was used where only one accused was tried. It is clearly evident that this form is intended to be used only when the participants are to be tried in joinder. As, however, both participants are charged with the offense it necessarily follows that each is charged, and in view of this fact, though admittedly irregular, the specification was held not fatally defective (File 26262-3982. J. A. G. Mar. 11. 1918: G. C. M. Rec. No. 36895).

[P. 22] WITHDRAWAL AND SUBSTITUTION OF PLEA BY ACCUSED (COUNSEL): WHAT RECORD SHOULD SHOW AS TO.

The counsel for the accused in a recent case requested permission of the court to withdraw the accused's plea of "not guilty" and to substitute therefor the plea of "guilty." The record disclosed that the court announced that the request of the accused was granted, and that he was allowed to enter a plea of "guilty."

In Bishop's New Criminal Procedure (vol. 1, sec. 268) it is stated that:

"A personal appearance and plea in person are necessary at the arraignment; this cannot be by attorney. The only exception to this rule is that in a misdemeanor punishable only by a fine without imprisonment and for special cause shown, and as a favor to the defendant, he will be permitted to plead by attorney."

Again:

"A plea by an attorney of a party indicted for a felony is a nullity; the defendent must plead in person" (Wharton on Criminal Law, 7th Ed., par. 530).

And:

"A plea confessing himself to be guilty of crime should not be entered except with the express consent of the defendent given by him personally in direct terms in open court. Nothing should be left to implication, and his confession of guilt should be explicitly made by himself in person in the presence of the court" (People v. McCrory, 41 Calif. 458).

In the case of State v. Blake (5 Wyo. 107; 38 Pac. 354), where counsel requested permission of the court to withdraw a plea of not guilty and substitute one of guilty of murder in the second degree, the judge of the court said, "Does the defendent withdraw his plea of not guilty, and enter a plea of guilty of murder in the second degree?" and the defendent, who was facing the judge, replied by nodding his head. It was held by the court reviewing the case that: "Under the circumstance of the case before us * it does not sufficiently appear that the defendant misunderstood the proceedings of the court or of the attorney * * who acted for him without objection on his part, or that he was mislead, or that an attempt was made by anyone to compel him to plead guilty. His affirmative assent to the action of the attorney, although made by a sign, we think was sufficient and operated as a voluntary plea, particularly as he made no objection to the action of the attorney, or to the proceedings of the court, and as it is not made to appear that he did not understand the proceedings or the effect of his plea."

It, therefore, appears that when the request for withdrawal of a plea and substitution of another is made by counsel, it is necessary that the record clearly indicate that the consent of the accused was given to the action taken by his counsel and that it was his personal [P. 23] desire to substitute some other plea for that originally made on arraignment.

Where the substituted plea is that of "guilty," the record should show that the accused was duly warned as to the effect of such substituted plea (File 26251-15806, G. C. M. Rec. No. 37337).

[C. M. O. 30-1918]

WITNESS: (A) ATTACK OF CREDIBILITY OF. (B) SELF-INCRIMINATION OF.

In a recent case it was noted that a witness for the prosecution was recalled by the defense and asked the following question by the counsel for the accused: that you did not know anything

"Did you testify in the case of D-about how S---- was hurt?"

(a) The judge advocate objected on the ground that it was an attempt to transpose into the record of this court testimony given by this witness before another court, which testimony is inadmissible. Counsel for the accused replied that the question was asked to test the credibility of the witness. The judge advocate said that to answer the question might tend to incriminate the witness, and claimed for him the privilege of refusing to answer on the ground of self-incrimination. The court sustained the objection of the judge advocate. The nature of the question and the statement of counsel for the accused as to his reason for asking it indicate an effort on the part of the defense to attack the credibility of the witness in connection with his testimony for the prosecution in this case. In other words, it was an attempt to impeach the witness, which the accused had a right to do, and it was error for the court to deny him the right (Naval Courts and Boards, 1917, pp. 164, 165, secs. 166-163; Nav. , Dig., 1916, p. 284). It is probable that the court based its decision on the assumption that the defense was attempting to introduce the record of the proceedings of the general court martial in the case of D----, but there is nothing in the record to justify such assumption on the part of the court. Had the defense attempted to introduce the record of the D____ trial it would have been proper to rule it out on the ground that the accused was not a party to the previous trial, was not present thereat or represented by counsel, was not afforded an opportunity to cross-examine the witnesses, and the introduction of the record would, therefore, deprive him of his constitutional right to be confronted with witnesses against him. In this case, however, no such question was presented, as no effort was made to introduce the record of the previous trial, but the witness who testified at the previous trial was present in person, confronting the accused, and subject to cross-examination. He could, therefore, be questioned regarding any contradictory statements he may have made at the previous trial, and, if necessary, his previous testimony could be proved by the testimony of other witnesses.

[P. 24] (b) On the other hand, if the court's decision in sustaining the objection was based on the ground that the witness was privileged to decline to answer because his answer might tend to incriminate him, the ruling of the court was nevertheless erroneous. The privilege of a witness to decline to answer a question on the ground that his answer might tend to incriminate him is personal, and can be taken advantage of by himself alone. (Nav. Dig., 1916, p. 568, sec. 16; Naval Courts and Boards, 1917, pp. 162-165.) (File 262624014, Sec. Nav. Mar. 2, 1918.)

ACCEPTANCE OF PERMANENT OFFICE: EFFECT OF, UPON RIGHT TO DISCHARGE FROM ENLISTMENT.

An acting pay clerk was appointed as such from the enlisted personnel of the Navy on December 29, 1916.. He requested to be informed as to whether or not he was entitled to an honorable discharge from the Navy upon September 12, 1917, the date that his enlistment would have expired had he continued an enlisted man.

The grade of acting pay clerk is a permanent institution in the Navy. It was created by the act of March 3, 1915 (38 Stat. 928, 942), and must not be confused with temporary appointments which are issued under the authority of the act of May 22, 1917.

It was held that his enlistment had ipso facto terminated upon his accepting the appointment to the permanent office of acting pay clerk in the Navy and that he was not entitled to an honorable discharge on September 12, 1917, and that he should not be given a discharge from said enlistment (File 26254-2020: 4, J. A. G., Mar. 15, 1918).