(concurring in the result):
I concur in the result.
I agree that the wife’s testimony did not prejudice the accused. That adultery is an offense against the wife is to me not only “conceded in morals” but “ought to be plain in law.” Wigmore, 3d ed, § 2239 (3). Examples of numerous offenses against the wife are delineated in the Manual in connection with her competency as the injured party. One of the examples is unlawful cohabitation. It would be unrealistic to hold that unlawful cohabitation with another woman would be an offense against the wife, yet adultery would not. I do not believe that we need reach the question of compellability in this case. The offense was against the wife. Therefore the perpetrator of the wrong, the accused, is certainly in no position to claim prejudice, regardless of the question of compellability of the wife. It appears to be the better rule that in such instances a defendant has no standing to complain. The reasons for exemption from testimonial duty are personal to the witness, “it concerns solely the interests of the witness in his relation to justice and the State, — his interests not to have his testimonial duty enforced against him where paramount considerations of policy prevail over the purpose of judicial investigation.” The privilege does not exist “for the benefit of the party nor for the sake of the better ascertainment of the truth of his cause.” Wigmore, supra, § 2196.
Specification 1 in this case sets out conduct — without reference to the statute — which may be found by the court-martial to violate Article 134, Uniform Code of Military Justice, 50 USC § 728.
“Specification 1: In that Sergeant Floyd A. Leach, U. S. Army, 581st Signal Company (EW-1), Fort Hua-chuca, Arizona, did, from on or about 14 November 1954 to on or about 4 April 1955, at or near Bisbee, Arizona, violate Title 43, Section 402, Arizona Code 1939, by openly and notoriously cohabitating with Norma Jean Burns (Murvey), a woman not his wife and thereby bringing discredit upon the military service.”
At no place in the Code is it stated that the violation of a state statute is per se a violation of Article 134, supra. In military law the violation of a state statute may or may not be violative of the Code depending upon whether the acts alleged in violation of the state law are the type which the court could find were “disorders and neglects to the prejudice of good order and discipline in the armed forces, or conduct of a nature to bring discredit upon the armed forces.” I find no error as to the court action or board of review action on this specification.
I agree that the law officer’s instruction on the fraud charged was deficient and the conviction thereon must be reversed. However, not only was the word “defraud” inadequately defined, but there was also a material variance between the pleadings in the conjunctive, i. e., that the accused intended to “deceive and. defraud,” and the law officer’s instruction in the disjunctive that the court would be justified in convicting the accused if they found that he performed the deeds alleged with the intent to “deceive or defraud.” This would allow the court to convict the accused if they felt he possessed the intent to deceive alone, despite the fact that the pleading required the additional proof to defraud. A conviction cannot stand which would permit a finding of guilty on a lesser quantum of proof than that alleged in the specification.