United States v. Boultinghouse

Latimer, Judge

(concurring in the result) :

I concur in the result.

In the case at bar, it apears to me the law officer gave instructions on amnesia which would confuse the court-martial members. While in a proper-case his charge on that matter was not technically incorrect, in the posture of the evidence in this record I believe that when he instructed the-court that testimony of amnesia had been introduced but that that mental' condition did not present a defense or relieve the accused of criminal responsibility, he may have misled the members to conclude amnesia could not be considered for any purpose and particularly in connection with the-absence of any explanation of his possession of the stolen property. When the other evidence provided no explanation and the accused came forward with none, he ran the risk that the-court-martial members might draw an adverse inference from his possession.. However', he should not have been denied the benefit of evidence which supports a justification for his failure-to explain. Certainly, if the triers of fact had concluded that accused suffered from amnesia, that fact' — • while not, as the law officer instructed, a defense in and of itself — may bear on his failure to come forward with any explanation. Since I believe the court may well have concluded otherwise, I join in the disposition ordered.