Opinion of the Court
This is an appeal from a conviction by general court-martial on two specifications alleging, respectively, the use and possession of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The accused contends the law officer erred to his prejudice in denying a motion for appropriate relief in regard to the use specification.
The specification alleges that the accused did “at Austin, Texas, and Berg-strom Air Force Base, Texas, from on or about 1 April 1959 to on or about 30 September 1959, wrongfully use marijuana.” In the motion for appropriate relief, defense counsel argued that the allegations were materially deficient in two respects; first, the place of the commission of the offense was not stated “with sufficient clarity and exactness”; - and, second, the specification was duplicitous because use of marijuana is “not a continuing type of offense” but a “one-time type of offense.” He further contended that the “shotgun nature” of the specification made it “just impossible to present any defense,” and he questioned whether it “fully protected” the accused against another prosecution for the same offense. Counsel did not spell out the exact nature of relief sought; however, the argument indicates he was not asking merely for further particulars, but wanted the specification dismissed because of the uncertainty of the allegations and their duplicitous character. See Manual for Courts-Martial, United States, 1951, paragraphs 28& and 695. The indication of the
Although at trial defense counsel alleged indefiniteness of place as one of the grounds of his motion, that contention is not pressed on this appeal. Whether the omission is an abandonment of the ground need not detain us. Suffice it to note that an allegation that an act was committed in a specified city is a sufficient allegation of the place of occurrence. It is ■ unnecessary to set out such details as the name of the street or the number of the building, if any, in which the offense takes place.
In Myers v United States, 15 F2d 977 (CA 8th Cir) (1926), an information was filed against the accused alleging wrongful sale of intoxicating liquor. The information charged that the sale of liquor took place in the city of Omaha, Nebraska. The defendant demurred to the information. One of the grounds of the demurrer was that the information did not set out with sufficient particularity the place of the sale. The demurrer was overruled, and the Court of Appeals sustained the trial judge’s action. It said: “It is as much a crime to sell liquor on one street of a city as it is on another street.” The comment is equally applicable to the offense of wrongful use of marijuana, the offense charged here. Miller v United States, 53 F2d 316 (CA 7th Cir) (1931); Fiddelke v United States, 47 F2d 751 (CA 9th Cir) (1931); see also Beard v United States, 82 F2d 837 (CA DC Cir) (1936); Parmagini v United States, 42 F2d 721 (CA 9th Cir) (1930). Similarly, a general allegation that the offense was committed at a military installation is sufficient, without further particularization. See Manual for Courts-Martial, supra, Appendix 65, page 471; England v United States, 174 F2d 466 (CA 5th Cir) (1949). There is, therefore, no merit to this part of the motion.1
Turning to the challenge to the specification on the ground of duplicity, the Government contends the issue is settled by our decision in United States v Schumacher, 2 USCMA 134, 7 CMR 10. There, the accused was charged in one specification with indecent exposure during the period from about June 15, 1950, to August 1, 1950, and in another specification with indecent liberties with a young girl during the same period. The pleading was predicated upon a provision in Naval Courts and Boards, 1937, that when “the act or acts specified extend over a considerable period of time it is proper to allege them as having occurred . . . ‘during the period from.to.’ ” Naval Courts and Boards, 1937, section 35; see Manual for Courts-Martial, supra, Appendix 6a, paragraph 7. The accused attacked the legal sufficiency of the specification on the ground that it failed to allege “with particularity, the time of commission of the offenses.” We sustained the form of the pleading. While we did not consider the precise question of duplicity presented here, we referred to Eisenberg v United States, 261 Fed 598 (CA 5th Cir) (1919), which dealt with that point. In that ease the accused was charged with wrongfully purchasing from military personnel property of the United States during April and May 1918. The defendant contended that since every purchase was a separate offense, the failure to specify the date of each deprived him of proper notice of what he had to defend against, and denied him the basis
Recently we had a case before us in which the accused was charged in a single specification with committing adultery on “several occasions” during the period from September 1957 to November 1958. As in the Schumacher case, we did not consider specifically the question of duplicity, but we did not express any doubt as to the validity of the specification. United States v Frayer, 11 USCMA 600, 29 CMR 416. A more specific indication of our approval of the practice of pleading a series of acts of the same kind which can be considered part of a course of action appears in United States v Autrey, 12 USCMA 252, 30 CMR 252. The accused in that case was charged with wrongful appropriation of “money and/or property” from about “1 January 1960 to about 31 March 1960.” We held the specification void for uncertainty regarding the kind of property appropriated, but we impliedly approved the sufficiency of the other parts of the specification. We said: “Here, the specifications followed the commonly accepted form for alleging either larceny or wrongful appropriation, and the uncertainty of its averments lies solely in the description of the res allegedly taken by the accused.” Service boards of review have expressly sustained joinder of separate acts as part of a single course of conduct against a defense claim of duplicity. United States v Jones, 15 CMR 664; United States v Francis, 12 CMR 695.
Several Federal courts have considered the problem. In one circuit there appears to be a conflict of decision. Cf. Eisenberg v United States, supra; Bailey v United States, 53 F2d 982 (CA 5th Cir) (1931). Other circuits, however, have directly sustained charges alleged in the same general form. In Korholz v United States, 269 F2d 897 (CA 10th Cir) (1959), the defendants were indicted for violations of the Taft-Hartley Act. One count alleged that from about June 15, 1954, to about April 17, 1956, one of the defendants unlawfully paid another “a total of $2,305.00.” The defendants contended the count was “duplicitous.” Rejecting the contention, the Court of Appeals said:
“Appellants’ complaint as to the indictment lies in the use of the words of aggregation describing payment made by Rock Wool and accepted by Bierig, ‘a total of $2,305.00.’ The fact that the words were used to signify numerous transactions of delivery and receipt, they urge, is borne out by evidence that the company made thirteen separate payments on eight different notes. Since proof of any one of these transactions would be sufficient to show a violation of that section of Taft-Hartley Act cited above, they contend the indictment is duplicitous and permits the jury to arrive at a verdict of conviction even though the jurors cannot agree as to the fact of any particular transaction. Inductive reasoning leads appellants to assert that Rule 8, Federal Rules of Criminal Procedure, 18 U.S.C.A., and the cases of Ebeling v Morgan, 237 U.S. 625, 35 S. Ct. 710, 59 L. Ed. 1151, and Blockburger v United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, require the prosecution to set forth each act in a separate count and prosecute it as a separate offense although concededly such could be done by one indictment and one trial. The Ebeling case permitted the prosecution and imposition of sentence on each of seven counts which separately alleged the cutting of a different mail bag, although all the destruction was a part of the same transaction. The Blockburger ease was a narcotics case which approved of the prosecution as separate offenses of two sales of narcotics to the same buyer within a short period of time. But compare these cases with the recent case of Bell v United States, 349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905, where it was held that the transportation of two women for immoral purposes constituted but one punishable offense.
“Whether or not appellants could be charged, convicted and sentenced for thirteen violations of 29 U.S.C.A. § 186 is of little consequence in thePage 294present case for the question is not raised by the posture of the case. The charge here was single, a violation of the Taft-Hartley Act, although the indictment undoubtedly proposed proof of guilt by a series of acts. . . .
“. . . The cases reveal that a complaint of duplicity is rarely made where but a single statutory prohibition is involved since the effect of joining several violations as one redounds to the benefit of defendant.”
A similar position was taken by the Court of Appeals for the Eighth Circuit in Hanf v United States, 235 F2d 710 (1956). The defendant was indicted for a violation of the Internal Revenue Act. In one count he was charged with wrongfully failing to make entries in and properly keeping the required monthly report “between October 16, 1953, and July 1, 1954.” He moved to dismiss the count for duplicity. The motion was denied by the trial judge. Sustaining the ruling, the Court of Appeals said:
“. . . This, in effect, was charging a course of conduct engaged in by the appellant between October 16, 1953, and July 1, 1954. Granting that the government might technically have broken this down into many separate, individual offenses, we do not see the necessity for doing so. The rule against duplicitous pleading is not offended by a count charging more than one act if the acts were part of a transaction constituting a single offense. Certainly, any similar prosecution by the government against this appellant for a violation committed at any time between the dates indicated in Count 1 of the indictment would be a prosecution for the same offense, and would be promptly dismissed.”
The Korholz and Hanf opinions express our views in the matter. The specification is clearly suf-fieient to inform the accused of the particular act which he committed; namely, continued wrongful use of marijuana. The allegations of place and time are general, but they can be considered with the evidence in the record of trial; together they would be entirely sufficient to protect the accused against another prosecution for the same acts. United States v Marker, 1 USCMA 393, 3 CMR 127; see also United States v Sell, 3 USCMA 202, 11 CMR 202.
We now reach the question of considering the defense motion as a motion for relief in the nature of a bill of particulars. The purpose of such a motion is to secure information to aid in preparation of the defense. Kempe v United States, 151 F2d 680 (CA 8th Cir) (1945). Manifestly, if the information is already possessed by the defense, there is little need for the motion. We have already noted that Article 32 requires that the accused be given a copy of the substance of the evidence considered by the investigating officer in the pretrial investigation. No claim was made that the defense was not provided with a copy. The record of the Article 32 investigation shows the circumstances of the charge, including the dates and places of the separate acts by the accused. It is apparent, therefore, that denial of the motion did not deprive the accused of any information required to assist him in preparation of his defense. From this standpoint, too, the motion lacked merit.
The decision of the board of review is affirmed.
1.
We are concerned here only with the legal sufficiency of the specification. See United States v Autrey, 12 USCMA 252, 30 CMR 252. It is, of course, open to an accused to demand further particulars if he believes that he has insufficient information about the details of the offense charged.