C. M. O. 151-1919

[P. 1] Lieutenant William F. Brodhead, Medical Corps, U. S. Navy, was tried by general court martial on January 15, 1919, at the Marine Barracks, Parris Island, S. C., by order of the Secretary of the Navy, and found guilty of the following charge:

Charge.--Conduct to the prejudice of good order and discipline (two specifi

cations).

SENTENCE

"The court therefore sentences him, Lieutenant William F. Brodhead, Medical Corps, U. S. Navy, to be dismissed from the United States naval service."

RECOMMENDATION TO CLEMENCY

The following unanimous recommendation to clemency was spread upon the record:

"In consideration of the fact that the accused was entirely ignorant of the weapon in question; that he was entirely inexperienced with service orders and customs and because he wrongfully assumed that a private who had completed his training was competent to demonstrate the proper use of the rifle; and because the accused showed a commendable desire to acquaint himself with the operation of the service rifle and offended only in his judgment as to time and place, we unanimously recommend Lieutenant William F. Brodhead, Medical Corps, U. S. Navy, to the clemency of the reviewing authority."

RETURNED FOR REVISION

On February 1, 1919, the department returned the record in the foregoing case to the court and directed that the court reconvene for the purpose of reconsidering the finding on the second specification of the charge, and the sentence. After careful consideration, the department was of the opinion that the finding of the court on said specification was not in accord with the evidence adduced.

FINDING IN REVISION

[P. 2] The court reconvened on February 12, 1919, and found the first specification of the charge "proved," excepting as to certain words, the second specification of the charge "not proved," and the accused “guilty” of the charge.

SENTENCE IN REVISION

"The court therefore sentences him, Lieutenant William F. Brodhead, Medical Corps, U. S. Navy, to lose five (5) numbers in his grade."

RETURNED FOR REVISION

On March 19, 1919, the department again returned the record in the foregoing case to the court, and directed that the court reconvene for the purpose of recording the sentence as indicated in circular letter No. 11130-51 of March 28, 1918.

SENTENCE IN REVISION

The court having reconvened on March 27, 1919, decided to revoke its former sentence and substitute therefor the following:

"The court therefore sentences him, Lieutenant William F. Brodhead, Medical Corps, U. S. Navy, to lose five (5) numbers in his temporary grade of lieutenant and to lose five (5) numbers in his permanent grade of lieutenant (junior grade)."

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OPINION AND RECOMMENDATION OF THE JUDGE ADVOCATE GENERAL

On April 15, 1919, the Judge Advocate General placed an endorsement on the record in the foregoing case in substance as follows:

It appears from the record of proceedings in this case that the accused, by counsel, objected to each and every member of the court martial on the ground that "a similar case having been tried, said member has unconsciously formed an opinion; and regardless of what the finding was, said member will be influence thereby in this case, as the charge and specification are identical." One member replied that he had formed an opinion from the preceeding trial, but that he could try the case impartially; two other members did not desire to make reply; the remaining members replied, in substance, that they had formed no opinion and could give the accused a fair and impartial trial. The court refused to sustain the respective challenges of the [P. 3] accused. except in the case of the member who stated that he had formed an opinion. In view of the challenges as aforesaid and the reasons advanced in support of said challenges, the department advised the accused that the question of a new trial in his case would be considered if he made formal petition therefor. The accused in reply stated that he did not desire a new trial and requested that the findings and sentence be set aside, because the court failed to sustain the challenges as aforesaid. The accused having thus declined the opportunity for a new trial, I am of the opinion that the sentence should be approved. In the record of revision of March 27, 1919, it is noted that the president of the court took part in the proceedings without authority of law. It appears that said president of the court was relieved from duty with the court by the convening authority on March 20, 1919, and on March 28, 1919, was reappointed, temporarily, during revision of the accused's case. He could not sit legally as a member of the court on March 27, 1919, at which time he was not a member thereof for any purpose, and the said proceedings were thereby vitiated.

Subject to the foregoing remarks, it is recommended that the proceedings and sentence in the revision of March 27, 1919, of the general-court-martial case of Lieutenant William F. Brodhead, Medical Corps, U. S. Navy, be disapproved, and that the original proceedings, and the proceedings, findings, and sentence in the revision of February 12, 1919, be approved.

CONCURRENCE OF THE BUREAU OF NAVIGATION

On April 24, 1919, the Bureau of Navigation concurred in the endorsement of the Judge Advocate General.

ACTION OF THE SECRETARY OF THE NAVY

The foregoing remarks and recommendation of the Judge Advocate General, concurred in by the Bureau of Navigation, are approved. Lieutenant William F. Brodhead, Medical Corps, U. S. Navy, will be released from arrest and restored to duty.

[P. 29]

C. M. O. 153—1919

ACCUSED: MAY WAIVE ASSISTANCE OF COUNSEL.

The right of a defendant in a criminal case in a court of the United States to have the assistance of, and to be heard by, counsel is absolutely guaranteed by the Constitution of the United States (sixth amendment). This is a fundamental right which may be waived by the accused but which cannot be denied by the court or by the convening authority. (See secs. 253, 254, 255, 265, 266, and 267, Naval Courts and Boards, 1917.)

In all cases the accused should be advised of his right to have counsel, and if he states that he does not desire assistance of counsel he is thereby deemed to have waived his constitutional right to be so represented unless he is mentally incompetent to make a decision in the matter, in which event the convening authority may, if he considers that the interests of the accused may not be sufficiently safeguarded by the judge advocate (sec. 255, Naval Courts and Boards, 1917), assign counsel to represent the accused even though the accused

[C. M. O, 153-1919]

has expressly stated that he does not desire counsel. It should be borne in mind, however, that the convening authority has no power to force counsel upon an accused unless the accused is mentally incompetent and thereby unable to look after his own interests. (See Dietz v. State, 149 Wis. 462; American and English Annotated Cases, 1913, C, p. 732, and footnotes, pp. 739-740, File 26504-358, J. A. G., Apr. 15, 1919.)

ARRAIGNMENT: ERROR IN, AS TO BRANCH OF SERVICE OF ACCUSED NOT FATAL.

The record in a recent general court martial case disclosed that the accused was arraigned as fireman, third class, U. S. Navy, instead of fireman, third class, U. S. Naval Reserve Force (the branch of the service to which he belonged).

[P. 30] Held: That the error was not of an invalidating nature (File 26251-20421, G. C. M., Rec. No. 43726).

EVIDENCE: SWORN TESTIMONY BEFORE A BOARD OF INVESTIGATION AND A COURT OF INQUIRY ADMISSIBLE BEFORE COURT MARTIAL,

In a recent court-martial case the defense offered in evidence the sworn testimony of two officers taken before a board of investigation and a court of inquiry, respectively. The testimony of these witnesses was material, they being the only eye witnesses to occurrences which formed the basis of a charge against accused, other than the prosecuting witness. At the time of the trial one of these witnesses was dead, and the other on the inactive list and outside the jurisdiction of the court. The court refused to admit this testimony on the ground that to do so would restrict the punishment that might be adjudged on a finding of guilty. The Judge Advocate Gencral was of the opinion that the court erred in the above ruling. The testimony before the court of inquiry was admissible independently of article 60, Articles for the Government of the Navy (Naval Courts and Boards, sec. 198 (e)), which states that proceedings of a court of inquiry are admissible, when offered in evidence by the accused in his own behalf, the right of the accused to be confronted by his witnesses being one which he may waive (Mullan v. United States, 212 U. S. 516). Having thus waived the restriction of article 60, Articles for the Government of the Navy, the limitations to punishment set out in that article do not apply.

The testimony under oath before the board of investigation was clearly admissible (art 60, A. G. N., having no application to the proceedings of boards of investigation) under the general rules of evidence (Naval Courts and Boards, 1917, 198 (a), 198 (b); Mullan v. U. S., 212 U. S. 516).

HEARSAY EVIDENCE; ADMISSION OF, HELD GROUNDS FOR DISAPPROVAL OF FINDING.

A specification of the charge of desertion in a recent case alleged that the accused "did, on or about November 20, 1918, desert from the receiving ship at Boston, Mass., and from the U. S. Navy, and did remain a deserter until he was delivered on board the aforesaid receiving ship, at the aforesaid place, on or about December 3, 1918; the United States then being in a state of war."

The evidence adduced showed that no "Absentee's slip" was made out for the accused, nor was a "Report of deserter received on board" prepared. The witness for the prosecution testified not from his own knowledge as to the absence of the accused, but from entries made by another in the report book. The report book was not submitted in evidence. The accused's counsel objected to said testimony [P. 31] on the ground of hearsay. It was the opinion of the Judge Advocate General that the court erred in refusing to sustain said objection. The department, therefore, disapproved the court's finding that said specification was proved (File 26251-19646, G. C. M. Rec. No. 42879).

REDUCTION TO ENLISTED RATING: SENTENCE OF, IN CASE OF AN OFFICER,

LAWFUL ONLY FOR THE OFFENSE OF ABSENCE FROM HIS COMMAND OR HIS STATION AND DUTY WITHOUT LEAVE.

(See C. M. O. 34, 1918; File 26262-6212, J. A. G., Apr. 29, 1919.)

[C. M. O. 153-1919]

SENTENCE INVOLVING CONFINEMENT: SHOULD INCLUDE A DISHONORABLE OR BAD-CONDUCT DISCHARGE.

Where a case was returned to the court for revision, the court not having included a dishonorable or bad-conduct discharge in its sentence adjudging confinement, and the court adhered to its sentence on the ground of the bearing of the accused, his youth, coolness, diligence, and devotion to duty, the Judge Advocate General was of opinion that the action of the court in thus extending clemency was an encroachment upon the prerogatives of the reviewing authority, this power being vested by law not in courts martial, but in the reviewing authority (Naval Digest, 1916, Clemency 13). It is the duty of the court to adjudge a punishment commensurate with the offense in each case (Naval Digest, 1916, Adequate Sentences 2, 3, 4, 7, 9; File 26251-19911, J. A. G., Apr. 28, 1919).

STATEMENT

INCONSISTENT WITH PLEA: NOTWITHSTANDING PLEA OF "GUILTY" TO OFFENSES MADE PUNISHABLE BY STATUTE REGARDLESS OF INTENT. Where an accused was tried for "Violation of a lawful order issued by the commandant, Fifteenth Naval District" and "Absence from station and duty after leave had expired," and on being arraigned pleaded guilty to both charges and the specifications thereunder, the court accepted these pleas and the prosecution offered no evidence. The accused then interposed a statement to the effect that he had not intentionally violated the said order of the commandant or intentionally absented himself from station and duty after leave had expired, but did so through unavoidable accident or through force of circumstances due to the fact that while on leave he went out into the country and in returning to his ship at Cristobal, followed instructions as to the direction to travel, given him by certain natives, which instructions erroneously led him to the Republic of Panama instead of to Cristobal.

[P. 32] The Judge Advocate General was of the opinion that both charges must be held to be sufficiently specific to be of statutory creation; that while the statute (arts. 4 and 8, A. G. N.) has done away with the element of intent in the offenses charged in the instant case the first offense being complete by the mere presence of the accused within the Republic of Panama, and the second offense on the mere nonpresence of the accused at his ship or station-nevertheless, in view of the well-recognized excuses which constitute exceptions to the rule that courts must give effect to the intention of the legislation to attach penalties for the mere violation of laws irrespective of criminal intent (see 8 A and E, Encyc., 291), such as where the accused, against his will, is prevented by force majeure, sickness, unavoidable accident, force or compulsion from complying with naval law (the reason being that all positive legislation contemplates some relation between guilt and punishment, and the law is not so unreasonable as to attach culpability and consequently to impose punishment where there is no intent to evade its provisions and the usual means to comply with them is adopted), the Judge Advocate General was further of opinion that the statement of accused contained matter of defense as an excuse for his acts which would have been legally admissible in evidence had he pleaded "not guilty," and was therefore clearly inconsistent with his plea of “guilty" to both charges; that said statement, rather than his plea of "guilty" should have been considered by the court as the more intelligent act of the accused; and that the court committed a material error by not proceeding in accordance with sections 310 and 312, Naval Courts and Boards, 1917 (File 26262-6020, J. A. G., Apr. 25, 1919).

[P. 33] LIQUORS, ALCOHOLIC: IMPORTATION, ETC., OF, INTO UNORGANIZED

TERRITORIES OF GUAM AND TUTUILA.

The act of November 21, 1918, provides as follows:

"After the approval of this act no distilled, malt, vinous, or other intoxicating liquors shall be imported into the United States during the continuauce of the present war and period of demobilization" (40 Stat. 1047).

[C. M. O. 153-1919]

Section 1891 of the Revised Statutes provides:

"The Constitution and all laws of the United States which are not locally Inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States."

The department was of the opinion that the islands of Guam and Tutuila, being unorganized territories, were not within the provision first quoted above. However, on April 30, 1918, in the case of Guam, and on July 12, 1918, in the case of American Samoa, the respective Governors of said islands were directed to issue orders prohibiting the manufacture, importation, exportation, sale, giving away, and use of alcoholic liquors in such islands (File 26509-201: 154, Sec. Nav., Apr. 2, 1919).

MATES, RETIRED: NOT RENDERED ELIGIBLE FOR PROMOTION BY ACT OF JULY 1, 1919 As mates are neither commissioned nor warrant officers (see U. S. v. Fuller, 160 U. S. 593), retired mates who have performed active duty during the war with Germany are not eligible for promotion as officers on the retired list under the following provisions of the act of July 1, 1918:

"That hereafter, during the existence of war or of a national emergency declared by the President to exist, any commissioned or warrant officer of the Navy, Marine Corps, or Coast Guard of the United States on the retired list may, in the discretion of the Secretary of the Navy, be ordered to active duty at sea or on shore; and any [P. 34] retired officer performing such active duty in time of war or national emergency, declared as aforesaid, shall be entitled to promotion on the retired list to the grade or rank, not above that of lieutenant commander in the Navy or major in the Marine Corps or captain in the Coast Guard, and shall thereafter receive the pay and allowances thereof, which his total active service as an officer both prior and subsequent to retirement, in the manner rendered by him, would have enabled him to attain in due course of promotion had such service been rendered continuously on the active list during the period of time last past. "That during the existence of war or of a national emergency, declared as aforesaid, any commissioned or warrant officer of the Navy, Marine Corps, or Coast Guard of the United States on the retired list, while on active duty, may be temporarily advanced to and commissioned in such higher grade or rank on the retired list, not above that of lieutenant commander in the Navy or major in the Marine Corps or captain in the Coast Guard, as the President may determine, and any officer so advanced shall, while on active duty, be entitled to the same pay and allowances as officers of like grade or rank on the active list: Provided, That any such commissioned or warrant officer who has been so temporarily advanced in grade or rank shall, upon his relief from active duty, or in any case not later than six months after the termination of the war or of the national emergency, declared as aforesaid, revert to the grade or rank on the retired list and to the pay and allowance status which he would have held had he not been so temporarily advanced : Provided further, That nothing in this act shall operate to reduce the pay and allowances now allowed by law to retired officers."

Further, a retired mate who is over 50 years of age is ineligible for promotion to warrant or commissioned rank under the act of May 22, 1917, as amended by the act of July 1, 1918, because of the express restriction as to age therein, as shown by the following excerpt therefrom:

"That in making appointments authorized herein the maximum age limit shall be fifty years for enlisted men to ensign, enlisted men of the Navy to warrant rank, noncommissioned officers of the Marine Corps to commissioned rank, members of the Marine Corps Branch of the Naval Militia and National Naval Volunteers, Marine Corps Reserve, and civilians specially qualified to commissioned rank, and temporary chaplains and temporary acting chaplains" (File 4856-19, J. A. G., Apr. 30, 1919).