United States v. Petree

LatimeR, Judge

(concurring in the result) :

I concur in the result.

If this specification can be sustained, it must be on a theory of aider and abettor, for the theory of superiority or control is not sufficiently alleged. While a plea of guilty admits all the facts well pleaded, when this specification is measured for a statement of the charge on that theory, it is lacking in one essential ingredient. Nowhere does it appear that the accused was the senior member of the Armed Service in the car or in charge of its operation. Conceding he admitted every fact stated, he could be innocent of any offense.

The difficult question for me in this case is whether the specification states an offense under the doctrine that an aider or abettor may be charged as a principal. I must start with the premise that the provision found in Appendix 6a, page 471, Manual for Courts-Martial, United States, 1951, is a guide and, in most instances, compliance with *14its provisions would be sufficient. However, if that concept of pleading were to be applied in this case, it would not help the prosecution, for at most the specification alleges merely the status of a passenger. It appears to me that this is one of a class of cases where the crime is so personal in character that charging it as an offense on the theory of a principal is inappropriate unless the accused was the actual perpetrator of a crime. For instance, I suppose that if a person were to procure liquor and thus become an aider and abettor in an offense involving drunken driving, the prosecution would not allege that the procurer was driving while drunk. To support such a theory of prosecution, a careful pleader would allege the facts showing the manner by which it was intended to hold the aider and abettor liable as a principal, Here it is doubtful that an accuser would care to charge the accused with being the driver of the vehicle, knowing that statement to be false. Moreover, it is almost a certainty this accused did not understand that he was answering to a charge of assisting another to escape. For all that appears, he may have had a perfectly good defense to that charge. Therefore, to avoid inaccurate charges and adequately to inform the accused of the offense, either an allegation of control of the vehicle, superiority in command, or a statement of the means of aiding and abetting ought to be set forth in the specification.