United States v. Larney

BROSMAN, Judge

(concurring):

I fully concur in the majority opinion save as divergent views may be stated hereafter, either expressly or impliedly.

I

Of course, I agree that there was no error in the multiple findings of guilty returned against this accused. To do this I need go no further than I am carried by the literal phrasing of paragraph 74b (4), Manual for Courts-Martial, United States, 1951, which provides specifically that:

.“The accused may be found guilty of two or more offenses arising out of the same act or transaction, without regard to whether the offenses are separate. . . [Emphasis supplied].

. I perceive no sound reason for testing the validity of the findings returned in this case to determine whether they relate to separate offenses — and affirming them because they do. It appears to me that the majority opinion does just that. Certainly the Manual provision set .out above would not permit their reversal because they do not! Compelling considerations may indeed exist which argue that there is reason to demand in military law that offenses be separate to sustain findings as well as the sentence' — and the majority has appropriately suggested the nature of some of them. However, the Code, the Manual and the Federal decisional law are jointly opposed to this view, and I am quite without disposition to engraft such a requirement on military justice procedure through a process of judicial legislation.

To keep the record straight, two further observations should be made at this juncture. The majority has suggested that “in the military judicial system a sentence is not imposed on each specification.” I am sure that its member's mean merely to say that a *571separate and readily discernible sentence is not so adjudged. Certainly within the totality of the unitary sentence used in court-martial procedure are included segments assignable to each offense of which the accused was found guilty. I agree most warmly that “It would seem to be better practice to have the law officer determine the separability before sentence so the court-martial could be informed as to whether the sentence should be assessed on one offense or on several offenses.” Indeed, I would go further — even to the length of asserting that he cannot possibly perform his function responsibly unless he does so. Happily — and despite the Manual’s uncertain language on the subject — the practice of instructing on the maximum sentence in this and other situations is in widespread use, although this Court has not yet been afforded an opportunity to consider definitively the question of his legal duty in this regard.

II

I agree, too, that the offenses involved here are separate. Applying literally and strictly the Manual definition contained in paragraph 76a (8), that offenses are separate “if each . . . requires proof of an element not required to prove the other,” the conclusion follows easily that violation of an order is not required to prove absence without leave, and absence without leave is not necessary to prove violation of a lawful order. Ergo, the offenses are separate. However, I am afraid the problem is just not that simple, and it cannot be solved properly by such an in vacuo approach. We have demonstrated earlier that the test of paragraph 76a (8), although generally workable, cannot be applied in all cases. United States v. Joe L. Davis (No. 646), 10 CMR 3, decided May 14, 1953. This case presents a further situation which warrants deeper inspection and a more careful consideration than that provided by a superficial and generalized application of the Manual definition.

Followed logically, such a literal and strick approach would mean that every military person who absents himself from his place of duty without authority may be convicted of and sentenced for two offenses: (1) absence without leave, and (2) a violation of an order, regulation, or other directive requiring of military personnel authority for absence from station. This is true for the reason that, viewed abstractly, it is not necessary to prove a violation of an order or the like to sustain a conviction for absence without leave, and certainly proof of absence is not a prerequisite to conviction for the violation of a regulation or order. All familiar with military law would — I believe— shrink from this proposition aghast. And why ? Because the absence and the order requiring authority therefor relate to the same duty! By absenting himself without authority, the accused in this hypothetical situation breached the duty imposed by the order or other directive requiring authority — and the latter was the only source of that duty.

Perhaps my point would be made with more effect if put in a somewhat different fashion. The offense commonly known as “absence without leave” is actually but a specific instance of the violation of a particular kind of directive, an order requiring authority for absences. Behind every conviction of absence without leave is the violation of an order, although the order, regulation, or the like, of course, is rarely required as the object of proof. But where the duty to be present arises only from a specific order, the latter is a necessary element to prove an absence in violation of its terms. So, viewed in this light, even within the Manual definition, one could not be sentenced separately both for the absence and for a violation of the order.

Turning to the facts and the specification in this case, we find that the accused was ordered to report to Newport, Rhode Island, on March 11, 1952, but that he did not report until March 15. He was charged with a violation of the order to report to Newport on March 11, and with absenting himself without leave for the subsequent period of delay in reporting. The question then —-accepting the analysis previously set out — is whether the duty to be at New*572port from March 11-15 was derived solely from the order directing him to that station. If so, he could not lawfully be sentenced for having committed the two offenses involved here. If not, a contrary result is required. I believe that, the latter represents the proper conclusion — for conceptually two steps are involved, each related to and arising out of a separate duty. First, the accused was required to present himself at Newport in accordance with the order to that effect 'given to him at the Receiving Station in Brooklyn. Second, he was required by a different general order, regulation, or other directive— although this does not explicitly appear in the record — to remain at Newport until ordered elsewhere, and to remain within the limits of that station, save as he might be granted permission to absent himself. Therefore, in failing to report to Newport on the date specified, accused breached two separate duties and committed two separate offenses within the meaning of paragraph 76a (8) of the Manual, supra. I suggest— and genuinely believe — that this notion of idéntification of duty is the living principle behind the bare bones of the Manual and Federal civilian tests for the determination of separateness — and that it constitutes the reagent through which apparent contradictions in the area may be reconciled.

Ill

I observe in the principal opinion what I am afraid is a potentially serious confusion in its implication that the terms “element” and “fact” may be used interchangeably in the solution of problems like the one under scrutiny here. This arises, of course, in connection with the discussion of the Blockburger and Bracey cases, together with the language of paragraph 76a (8) of the Manual. The latter, of course, talks in terms of elements, while the two eases speak of facts. While this possible confusion — and there ■ may in reality be none in the minds of the majority — does not at all require that I dissent from the result reached in the instant case, if it exists, it might conceivably compel this action in some future one. Just now, therefore, I am interested only in entering a caveat. Unless we know fully what we mean and exactly what we are doing, the words should not be used interchangeably in this setting in my view. " Certainly the term “element” should not be used in a generalized or in vacuo sense, but must always be related to the facts of the individual case. Disregard of this, I believe, can only lead to error.