United States v. Smith

FERGUSON, Judge

(concurring in the result):

I would concur outright were it not that I disagree with the basic method of analysis employed by the majority of the Court. In my view, the initial consideration here should be of the board of review’s decision. The basic question is whether the board of review’s ■determination that the convening authority was an accuser, as a matter of fact, is sufficient as a matter of law.

In this case the charges were substantially amended by the convening authority after an investigation pursuant to Article 32, Uniform Code of Military Justice, 10 USC § 832. The accuser did not swear to the charges as amended and the accused was brought to trial on the original charges in their amended form. One week before trial the accused was served with the charges as amended. The accused did not object at trial nor did he make motion for appropriate relief. The board of review in their opinion said;

“The convening authority therefore directed the trial counsel to draw up and prefer a new charge, even though the trial counsel was not required to sign or swear to such charge. This, in our opinion, brings the convening authority within the purview of paragraph 5a (4), MCM, 1951, and becomes an accuser as defined therein by reason of his direction to the trial counsel. There is no indication that his act was other than official or that he had a personal *184interest. Rather, it is within the other concept of accuser, that of ‘prosecutor’ (see United States v. Ross, 16 CMR 579), that the convening authority has placed himself. This situation could have been avoided and the same result could have been obtained had he followed the procedure suggested in paragraph 5a (4), which provides for returning the case to a lower command with appropriate instructions.” [Emphasis supplied.]

I regard their reference to paragraph 5a (4), Manual for Courts-Martial, United States, 1951, as a ruling that the convening authority was the accuser in this matter as a matter of fact.

Article 1(9), Uniform Code of Military Justice, 10 USC § 801 (Article 1(11), 50 USC (1952 ed) §551), defines “accuser” as follows:

“. . . a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn by another, and any other person who has an interest other than an official interest in the prosecution of the accused.”

The board held that the convening-. authority in this case was an accuser because of his direction to the trial counsel to amend the charges.

Paragraph 5a (4), Manual for Courts-Martial, supra, says:

“. . . No person will be ordered to sign and swear to charges if he does not believe the allegations therein to be true in fact to the best of his knowledge and belief. The person who signs and swears to charges is always an accuser.. Whether a commander who convened the court is the accuser in other cases is a question of fact.” [Emphasis supplied.]

The convening authority did not sign .the charges. The trial judge advocate did not sign the charges, and the board of review found as a fact that there was no indication of other than official interest of the convening authority in this case. The board stated that the convening authority was an “accuser” in the sense of United States v Ross, 16 CMR 579. As I read the Ross case, it merely says that the definition of accuser in Article 1(9), supra, is broad enough to include an older concept of “prosecutor.” In the Ross case, supra, at page 583, the board emphasized that the words ‘‘and to any person who has an interest other than an official interest in the prosecution of the accused” includes the older concept of Article of War 9, 10 USC (1946 ed) § 1480. A person is a “prosecutor” in this sense, therefore, if he has an interest in the prosecution of a case other than official. The board in the instant case determined that there was no such interest here involved. The convening authority did not sign the charges nor did— under his direction or otherwise — anyone else swear to the amended charges. The facts and the board of review have thus ruled out the two possible classifications of accuser possible in this case, viz., a personal interest and directing a person to sign charges nominally. The only evidence on this question of fact, therefore, is that the convening authority directed an amendment to the charges pursuant to authority vested in him to make such substantive changes. Article 34(b), Uniform Code of Military Justice, 10 USC § 834, states:

“(b) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence may be made.” [Emphasis supplied.]

It is argued that paragraph 33d, Manual for Courts-Martial, supra, limits the power of the convening authority to make substantial changes. The argument of counsel and the basis of the board’s decision is that the oblique parenthetical reference in paragraph 33d of the Manual, supra, to Article 34(b) of the Code, supra — at the end of the discussion of the procedure to be followed by an officer exercising summary court-martial jurisdiction — limits the power of the convening authority granted by Congress in Article 34(b) of the Code. See United States v Grice, *1858 USCMA 166, 23 CMR 390, for discussion of the staff judge advocate’s status. I don’t think any such limitation may be applied.

The only evidence that the convening authority was an accuser then is that he directed an amendment pursuant to the authority discussed above. I think this is insufficient evidence as a matter of law to sustain the board’s findings of fact. United States v Bunting, 6USCMA 170,19 CMR 296; United States v Moreno, 6 USCMA 388, 20 CMR 104.

I therefore concur in the result.