United States v. DeMaria

BROSMAN, Judge

(concurring in the result) :

I concur in the result reached by the Chief Judge, but I cannot escape certain reservations' touching his attitude toward this Court’s concept of judicial notice.

As I understand the opinion, it suggests that the implementing messages from the Secretary of the Army, as well as the directives distributed to subordinate commands by the Far East Headquarters, do not constitute appropriate subjects of judicial notice. Yet, the current Manual for Courts-Martial provides explicitly that the contents of official publications of the departments and commands under the Department of Defense — including orders, bulletins, circulars, and the like— need not be established by the formal presentation pf evidence. Paragraph 147a. Indeed, the doctrine of judicial notice may be invoked as to a document issuing from one of the service departments despite the fact that no extract *594therefrom is attached to the record of trial. Paragraph 147a, supra. Moreover, this Court has specifically held that messages from the Commanding General of the very Headquarters, which issued one of the implementing bulletins before us here, may be noticed judicially. United States v Williams, 6 USCMA 243, 19 CMR 369. I am therefore unable to find any sort of valid reason for rejecting the doctrine with respect to the messages now under consideration. I much prefer to bottom my concurrence on this approach rather than on the theory — artful but unnecessary — utilized in Judge Quinn’s opinion.