United States v. Greenlee

Latimer, Judge

(concurring in part and dissenting in part) :

I concur in part and assent in part.

I concur in all parts of the opinion except that portion which deals with the subject of an erroneous instruction. Because I believe any irregularity in that regard is trial minutia, I dissent from the reversal and the reasons therefor. Obviously, it was error for the law officer to tell the court-martial members they could return a finding of guilty if they found the accused violated any general regulation. However, I am unable to find any sound basis for a holding that the instruction had a tendency to mislead the court-martial and, therefore, was prejudicial to one of accused’s substantial rights.

There was only one offense charged in one specification and it was stated in the following language:

“In that William J. Greenlee . . . did, at the U. S. Naval Receiving Station, Seattle, Washington, on 18 February 1952, violate a lawful general regulation, to wit: article 1269, U. S. Navy Regulations, 1948, by possessing alcoholic liquor, to wit: beer, for beverage purposes in an unauthorized place at the said naval receiving station, to wit: the leave office in building number 204.”

The evidence produced at the trial was directed solely to proving possession of beer in the leave office as it was the only alleged violation of Article 1269, U. S. Navy Regulations, and evidence of any other violation would have been incompetent. The sole point in issue was whether there had been a violation of that particular regulation. Arguments were pointed to that issue at the commencement of trial; during the progress of the trial the theories of both parties narrowed into one; and *288when counsel were finally summing up the law and the evidence in their concluding arguments, they stressed only the single point of a violation of a specific order in a specific manner. It is, therefore, unreasonable to conclude that a court-martial would wander outside an area of dispute, well-identified and clearly known to all, to conjure up some other unknown violation of an unidentified regulation as a basis to support a finding of guilty. Here the analogy of a mountain and a molehill of evidence is inapplicable, as there is no molehill.