United States v. McPhail

Ferguson, Judge

(dissenting):

In the course of his instructions, the law officer advised the court-martial as follows :

“Gentlemen, due to the fact that the confession is the only thing that connects this accused with the commission of these crimes, if you do disre*53gard the confession, you must find him not guilty.’’

The law officer then continued his instructions, as quoted in the majority opinion, concluding:

. . [A]n.d I instruct you that character evidence is never sufficient to overcome direct evidence of the happening of an event.’’ [Emphasis supplied.]

In his concurring opinion, Judge Latimer adopts the assumption that the phrase “the happening of an event” encompasses the giving of a confession.

The accused’s pretrial confession was the only evidence introduced at trial which directly connected him with the burglaries charged. Its voluntariness was in issue. As I read the instruction, it advised the court-martial that because the questioned pretrial confession was before it and there was direct evidence as to its voluntariness, it was required to disregard the favorable character evidence introduced on behalf of the accused on the question of involuntariness. Certainly the question as to whether the confession was voluntary or involuntary was relevant as to “the happening of an event.” (Emphasis supplied.)

I read the law otherwise. I have no difficulty in distinguishing United States v Dodge, 3 USCMA 158, 11 CMR 158, relied on by the principal opinion, as there the accused established no defense of merit as he confessed to the offense of which he was charged in open court. Such a circumstance is obviously not present in the case at bar.

In United States v Johnson, 3 USCMA 709, 14 CMR 127, we held that it constituted prejudicial error for the law officer to gratuitously destroy all effect of character evidence by instructing:

“ . . The fact that the accused’s character is good has no bearing on whether he took the suits or not, and has no bearing on the crime of larceny.’ ”

In United States v Browning, 1 USCMA 599, 5 CMR 27, this Court said:

. . [C]ourts have repeatedly held to be reversible error a refusal to charge the jury that evidence of good character alone may be sufficient to warrant acquittal, even though evidence of guilt may be convincing. Edgington v United States, 164 US 361, 41 L ed 467, 11 S Ct 72; Egan v United States, 287 F 958 (CA DC Cir); Jones v United States, 289 F 536 (CA DC Cir).”

We reiterated this principle in United States v Gagnon, 5 USCMA 619, 18 CMR 243, adding:

. . Furthermore, it must be acknowledged that the specific character traits of honesty and reliability are particularly relevant where the offense alleged is larceny. Hawley v United States, 133 F2d 966, 972 (CA 10th Cir 1943); State v Ferguson, 222 Iowa 1148, 270 NW 874, 882 (1937).”

Federal authority to the effect that evidence of good character alone may create a reasonable doubt in the minds of the triers of facts in the teeth of otherwise convincing evidence is not lacking. See Edgington v United States, 164 US 361, 17 S Ct 72, 41 L ed 467; Greer v United States, 227 F2d 546 (CA 10th Cir) (1955); Hayes v United States, 227 F2d 540 (CA 10th Cir) (1955); Holland v United States, 245 F2d 341 (CA 5th Cir) (1957).

Admittedly, the law officer’s instructions pertaining to the effect to be given to accused’s good character were not requested by the defense in the instant case nor were further instructions upon the subject requested at the conclusion of the instructions. In United States v Schumacher, 2 USCMA 134, 7 CMR 10, we observed that there is no duty on the part of a law officer to give instructions on the effect of good character evidence on behalf of the accused in the absence of a request by counsel. However, we subsequently said, in United States v Beasley, 3 USCMA 111, 11 CMR 111:

“. . . When he [i.e., the law officer] determines that an issue requiring additional instructions is fairly raised by the evidence, he should clearly, fully, and fairly ap*54prise the court of the law applicable thereto.”

As was enunciated by the court in Miller v United States, 120 F2d 968 (CA 10th Cir) (1941):

“. . . It may be conceded that the court was not bound to instruct on character testimony in the absence of a request for such an instruction, but when it did proceed to instruct the jury thereon, it was required to give a correct instruction.”

Here, the law officer undertook to give such an instruction. In light of the authorities cited in this opinion, it is my considered conclusion that by advising the court-martial “that character evidence is never sufficient to overcome direct evidence of the happening of an event,” he, in effect, misadvised it as to the law. The instruction did not permit the court-martial to consider the evidence of good character on the question as to whether the confession was voluntary or involuntary — -and the answer to this question would determine whether there was evidence that the accused committed the crime.

I would reverse the decision of the board of review.