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[C. M. 0. 17–1917)

Witnesses for defense:
(Testimony of witnesses need not be recorded.)
Finding: Guilty (Not guilty).

Sentence: Confinement for ---- days (with or without hard labor); or, to
be fined ------ dollars; or, confinement for days, and to be fined
dollars.

A------ B.-----,

Captain, U. 8. Marine Corps, Provost Court.
G------ H.----- was arraigned, etc.
The court adjourned at

(P.1) 1. JUDGE ADVOCATE: AB PROSECUTOR, SHOULD PROPERLY REPRESENT THE

INTERESTS OF THE GOVERNMENT.

2. COURT: SHOULD EXCLUDE IMPROPER EVIDENCE.
3. EXPERT TESTIMONY: IMPROPERLY INTRODUCED.
4. RECORD OF OFFICER: MUST BE INTRODUCED IN EVIDENCE BEFORE THE

COURT CAN PROPERLY TAKE COGNIZANCE OF ITS CONTENTS.

5. DRUNKENNESS: WHAT CONSTITUTES.

6. FINDING: NOT IN ACCORD WITH THE EVIDENCL.

Surgeon Walter S. Hoen, United States Navy, was tried by general court

martial on January 2, 1917, at the Naval Station, Hawail, Pearl Harbor, T. H.,

by order of the Commandant of the Naval Station, Hawaii, Pearl Harbor, T. H.,

upon the following charge:

Charge.-Drunkenness.

Specification.-In that Walter S. Hoen, a surgeon in the United States Navy,
attached to and serving on board the United States ship St. Louis, at Hilo, T.
H., was, at or about one o'clock antemeridian, on the ninth day of December,
nineteen hundred and sixteen, on board said ship, under the influence of intoxi.
cating liquor and thereby incapacitated for the proper performance of duty.

[O. M. 0. 17–1917)

ACTION OF THE CONVENING AUTHORITY

The convening authority, on January 17, 1917, approved the proceedings of the general court martial in the foregoing case of Surgeon Walter S. Hoen, U. S. Navy, but disapproved the finding, and directed that he be released from arrest and restored to duty.

(P. 2) ACTION OF THE SECRETARY OF THE Navy The Department, subject to certain remarks, the substance of which are hereInafter set forth, concurred in the final action of the convening authority in disapproving the finding of the court.

REMARKS

The record in the foregoing case discloses a failure, both on the part of the judge advocate and the court, to appreciate and properly perform their respective functions. The following points appear to be noteworthy in connection with the review of this case :

(1) The accused was represented by counsel of his own selection, thus relieving the judge advocate from any duty in connection with the presentation of the defense and leaving him free to devote all his efforts to the conduct of the prosecution. The judge advocate's performance of this duty was perfunctory in the extreme. The following may be mentioned as some of the specific instances in which he failed properly to represent the interests of the Government and as being indicative of his indifferent attitude toward his duties as prosecutor:

The principal witness for the prosecution was asked by the counsel for the defense in cross-examination many irrelevant questions and also questions which had previously been answered in another form. The cross-examination of this witness was lengthy and a reading of the record shows that much of it did not serve any purpose other than to require the witness to repeat his former answers. To this procedure apparently followed for the purpose of confusing the details and leading the witness into a contradiction—the judge advocate interposed no objection. Finally, counsel's efforts became so persistent and his purpose so apparent as to lead the witness himself to object and appeal to the court.

Another witness for the prosecution was, in addition to the introductory questions, examined by the judge advocate as follows:

"3. Q. Were you in the company of the accused on the night of December 8-9, 1916?

"A. I was.

“4. Q. The accused is charged with certain irregularities after arriving on board ship that evening. Did the accused, in your company, partake of any intoxicating liquor that evening?

"A. While on shore; yes, sir." This ended the judge advocate's direction examination of this witness. Neither the judge advocate nor the court followed up the above testimony by attempting to ascertain how much liquor the accused had drunk. Counsel for the defense, however, in his (P. 3] cross-examination of this witness was not required to restrict himself to the above-quoted direct examination, but was allowed the widest latitude and covered matters not only beyond the scope of the direct examination but also irrelevant to anything contained in the specification. As to all this the record shows that "the judge advocate called the attention of the court to the irregular introduction of this testimony, but offered no objection."

A witness for the prosecution, called and examined in direct examination as to facts, was, in cross-examination, questioned by counsel for the accused as to bis opinion in regard to the legal sufficiency of the specification. The Judge advocate made no objection to this at the time, but did, in his remarks in presenting the case to the court, state that "such questions are considered highly irregular and should bave been objected to by the judge advocate at the time”a comment in which the Department concurs.

1

(C. M. 0. 17–1917]

Further instances of the shortcomings of the judge advocate might be cited, but the foregoing are considered sufficient to set forth the Department's disapproval of the judge advocate's conduct of this case and its reasons therefor.

(2) Notwithstanding the failure of the judge advocate to enter objections, however, the court could have excluded objectionable testimony. Navy Regulations, 1913, R–751 (1) provides that "the court shall determine all questions as to the admissibility of evidence, and its decision thereon is final.” And yet in the instance above mentioned when a witness appealed to the court to be protected from improper questioning, the court ruled that “the objection by the witness should be stricken from the record and that the witness was to answer questions as propounded, unless objection was raised by the judge advocate and sustained by the court." And again, when, as above stated, another witness for the prosecution was submitted to an irregular cross-examination, the court did not see fit to bring it to an end, even after attention was called to the same by the judge advocate. Nor were the instances already cited the only occasions on which the court failed to exclude improper evidence.

(3) A medical officer of the Navy was called as a witness by the defense. He was not examined as to the facts in the case on trial, but as an "expert.' The court erroneously permitted such examination without requiring the qualification of the witness as an expert. The matter of expert testimony has previ. ously been covered and the citations thereon will be found collected in C. M. O. 12, 1917, 1-2.

(4) The record states that "the accused (counsel) made verbal statement for the defense, as follows: 'Dr. Hoen has had thirteen and one-half years of commissioned service, and during this period his record has been entirely clear'.” The (P. 4) record of the accused was not in evidence. The action of the court in allowing counsel to make the above statement concerning the contents of the accused's official record, when the same had not been introduced in evidence, was irregular. (In this connection see C. M. O. 19, 1915, 9.)

(5) In reference to certain evidence brought out by the defense as to the degree of intoxication, the judge advocate invited the attention of the court to C. M. 0. 5, 1915, in which it is stated that “the degree of intoxication goes to the gravity of the offense, but does not relieve an officer of the consequences of his condition if he has been guilty of such overindulgence as will incapitate bini for the full performance of his duties.” In the Army Digest, 1912, 540 (XII A 9 a) "drunkenness" within the meaning of the Articles of War is defined as "any intoxication which is sufficient to sensibly impair the rational and full exercise of the mental and physical facilities.” Nor do the Articles for the Gov. ernment of the Navy require any particular degree of drunkenness, and it is considered that, such charge is supported by showing incapacity for the fuli performance of duty as a result of indulgence in intoxicating liquor.

(6) In regard to the merits of the present case, the record shows that the commanding officer of the accused testified that, "Dr. Hoen then continued in a voluntary statement, without any questions having been asked, that he wanted to say to me that he then was himself under the influence of liquor and unfit for the performance of duty. While making this statement Dr. Hoen was noticeably unsteady on his feet, swaying back and forth appearing to labor heavily from the effects of some intoxicant. To me he presented, such as I know them, all the evidences of a man slightly affected by liquor. His speech was thick, his bearing unsteady, and the subject matter of his statement bore considerably on the situation as he viewed it from a personal point of view and was not confined simply to a report regarding the case." Again (quoting from the testimony of the same witness during cross-examination) "I do not think that anyone in his sober senses would accuse himself in front of his commanding officer of being under the influence of intoxicating liquor when the matter in question had not even been raised, and no matter what his excitement, I do not think that it would go to the extent of making such a statement. I might say on that point there was no question in my mind from his appearance, his bearing, his speech, and his unsteady carriage, that such a condition was an actual fact.” And again (on cross-examination) in answer to the question, “Are you willing, sir, to state positively on your own observation, that Dr. Hoen was under the influence of liquor and was not in a condition brought on by the mental strain and the excitement of handling a man who has since been adjudged men(C. M. O. 21—1917]

tally unsound?" the witness replied, “I do so (P. 5] state.” Another witness testified that the accused had partaken of intoxicating liquor on the evening in question while on shore. And the accused himself, while on the stand on his own behalf, testified, "I told the commanding officer I had had several drinks ashore, and in my statement to him, I told him that this in connection with the excitement and the physical exertion of handling Mr (------), might possibly bare had some effect upon me.”

In view of the above, the Department does not consider that the present case is one in which the facts are in dispute and the evidence in such conflict that reasonable men might differ as to the conclusions to be drawn therefrom, and in which the Department has frequently held that the findings of the court should not be disturbed. The Department, therefore, has no hesitancy in holding that the findings of the court in the foregoing case is not in accord with the evidence.

C. M. 0. 21-1917

(P.1) 1. CLEMENCY: RECOMMENDATION TO-SHOULD NOT BE BASED UPON DOUBT

AS TO THE GUILT OF AN ACCUSED.
2. CLEMENCY: RECOMMENDATION TO-MADE BY MEMBERS NOT BY COURT.

Chief Boatswain Christopher Murray, United States Navy, was tried by
general court martial on March 15, 1917, on board the U. S. S. Wyoming at the
Gulf of Guacanayabo, Cuba, by order of the Commander in Chief, U. S. Atlantic
Fleet, and was found guilty of the following charge:

Charge.-Drunkenness on duty.

Specification. In that Christopher Murray, a chief boatswain in the United States Navy, attached to and serving as commanding officer of the U. S. S. Patutent, was, at or about twelve hours and thirty minutes postmeridian on the thirteenth day of March, nineteen hundred and seventeen, on board said vessel, being then and there on duty, under the influence of intoxicating liquor.

SENTENCE

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"The court, therefore, sentences bim, Chief Boatswain Christopher Murray, U. S. Navy, to lose fifty dollars ($50) per month of his pay for a period of six (6) months."

RECOMMENDATION TO CLEMENCY

The members of the court spread upon the record the following unanimous recommendation to clemency:

Owing to the fact that the court believes that Chief Boatswain Christopher Murray's condition might well have been caused by the whisky given him by the Pharmacist's Mate, on account of his loss of sleep and run down condition, and that Chief Boatswain Christopher Murray was guilty of an indiscretion in taking the whisky at this time, rather than of a willful offense, and his excellent record, the court recommends him, Chief Boatswain Christopher Murray, U. S. Navy, to the clemency of the revising power.”

ACTION OF THE CONVENING AUTHORITY

The convening authority on March 17, 1917, took the following action :

"The proceedings of the general court-martial in the foregoing case of Chief Boatswain Christopher Murray, U. S. Navy, are approved.

"A careful reading of the evidence in this case, together with the statement made in the recommendation to clemency, 'that the court believes that Chief Boatswain Murray's condition (P. 2] might well have been caused by the whisky given him by the pharmacist's mate on account of his loss of sleep and his run-down condition,' leaves a reasonable doubt in the mind of the convening authority as to the guilt of the accused.

"The evidence is clear as to the fact that the accused was slightly under the inffuence of intoxicating liquor, but the testimony is also uncontroverted

(O. M. 0. 21–1917)

that such liquor was administered for medicinal purposes by the duly authorized representative of the medical department.

"The record of the accused is apparently clear.
"In view of the above, the finding and sentence are disapproved.

“Chief Boatswain Christopher Murray, U. S. Navy, is hereby released from arrest and restored to duty."

REMARKS

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(1) After a review of the record in the above case it is not clear to the De. partment just what the members of the court had in mind when they stated in their recommendation to clemency that they believed that the accused "was guilty of an Indiscretion in taking the whisky at this time, rather than of a willful offense.” According to the interpretation of the convening authority the evidence shows “that the accused was slightly under the influence of intoxi. cating liquor," but that "such liquor was administered for medicinal purposes by the duly authorized representative of the medical department." If such interpretation is correct, then the fact that the accused's condition was the result of medical treatment properly administered would constitute a valid defense and would be a proper ground for acquittal rather than a recommendation to clemency. If for example, an officer reports some defect in his physical condition to proper medical authority and such authority administers as a proper treatment medical whisky in a suficient quantity to impair the faculties of the patient, then it is difficult to see wherein such patient is guilty even of an "indiscretion." However, under such circumstances it is clearly the duty of the medical representative to bring the condition of the patient to the attention of proper authority, and the necessary steps should be taken toward pro tecting the government and the patient himself from the consequences of permitting him to continue on duty in such condition.

In the present case the defense of the accused was that he was."in such a run-down physical condition that it became necessary for me (the accused) to order hospital apprentice H. K. Jackson, who is attached to this ship, to give me a stimulant in the shape of a drink of medical whisky, in order that I might be sufficiently strengthened to bring my ship to her destination [P. 3] along. side the U. S. S. Jupiter." Thus, even the accused himself did not contend that he had requested medical attention and submitted himself to such treatment as the proper medical authority might prescribe, as contemplated in the facts set forth above as constituting a valid defense in such cases. As to the intoxicated condition of the accused at the time in question the record leaves no doubt. It also appears from the record that an officer of the grade of boatswain was sery. ing the Patuxent at the time as "second in command." That the accused shou'r! have been on duty in such a condition was subversive of the interests of the government and not in accordance with the proper procedure under such circumstances as outlined in the preceding paragraph.

As above stated, it is not clear to the Department, after considering the recommendation to clemency in connection with the finding of the court, whether or not the court accepted the defense of the accused in the present case and gave it the interpretation indicated in the action of the convening authority. Without particular reference, therefore, to the foregoing case, but as a matter for the guidance of courts in general, attention is here called to the fact that the record of a court-martial trial should show no inconsistency between the findings of the court and the grounds upon which its members recommend clemency. After a court has found an accused guilty of an offense, there are many grounds upon which apy or all of its members may properly base a recommendation to clemency. But, a court having found an accused guilty beyond a reasonable doubt, its members cannot consistently sign a recommendation to clemency based upon a ground which would tend to subvert the court's findings by raising a doubt as to the guilt of such accused.

(2) Inasmuch as a recommendation to clemency is not an action by the court as a body, but by the individual members thereof, it should not be stated in such recommendation that “the court recommends," but instead should be stated that "we recommend."

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