(concurring in the result) :
I concur in the result.
It appears to me this ease involves only a claimed ignorance of the law, and I need only say that, under the facts of this case, that theory does not compel the giving of an instruction. The regulation violated was as follows:
“4. Instruments. No person subject to military law under Article 2 of the Uniform Code of Military Justice shall, except as authorized by proper authority for medicinal purposes, introduce into any area, installation, aircraft, or vessel of this command; use, or have on his person, or in his possession or custody, at any time or place, any instrument or device which may be used to administer or dispense habit-forming drugs or nervous system stimulants, such as, but not limited to, syringes, hypodermic needles, or ampoules designed for such drugs or stimulant. A violation of this paragraph is punishable under Article 92 of the Uniform Code of Military Justice.”
Had the accused known of the regulation and accepted the needles and syringe from Sergeant Crosby because of a belief that the Sergeant fell within the category of persons designated in the regulation as “proper authority” to authorize such possession, then a defense might have been raised. But the accused testified he was unaware of the regulation, and that he did not know that possession of such instruments was illegal. Assuming his story to be believable, the court-martial could nevertheless base a finding of guilt on the theory that this accused may be charged with knowledge of the terms of the regulation. Manual for Courts-Martial, United States, 1951, paragraph 154a (4), page 295. In that event, the accused could be brought within the preferred class if the Sergeant was authorized to direct possession. However, because the authority did not exist, in law or in fact, the accused has no defense. When he conceded he had possession of instruments of sinister significance, to escape a finding of guilt he had to prove that his custody and control fell within the exception set out in the regulation. See United States v Gohagen, 2 USCMA 175, 7 CMR 51. He could not do that by relying on a claimed ignorance of the law. If an instruction on the theory of ignorance of law is ever required, it was not necessitated by the facts of this case.
Judge FERGUSON did not participate in the decision in this case.