United States v. Johnson

Ferguson, Judge

(dissenting):

The critical issue for the court-martial’s determination was whether or not the accused as a sen-tine! was sleeping on his post. A log entry introduced by the prosecution without objection reflected that the Officer of the Day had found the accused “fast asleep in the cab of one of the trucks.” In my view this entry was no more than a statement of opinion and inadmissible under the hearsay rule. Paragraph 144c£, Manual for Courts-Martial, United States, 1951. I would not permit a gradual chipping away of this firmly established rule of evidence merely because a more expedient method of proving an offense is presented.

Additionally, I took with misgivings at the practice permitting trial counsel to read legal authorities to the court-martial in opening argument before any evidence has been presented. Any authoritative source of legal precedent should come from the president. Counsel in this special court-martial were nonlawyers and accordingly the doctrine of waiver is inapplicable. The combined errors in this case are sufficiently prejudicial to warrant reversal of the con-yiction.