(dissenting) :
I dissent.
My brothers and I are in full agreement on the law of this case, i.e., that an assistant staff judge advocate is disqualified to participate in the preparation of a post-trial review if he has acted as a member of the prosecution even though not formally named in the appointing orders. Indeed, such is the command of the Uniform Code of Military Justice and the teaching of our cases. Code, supra, Article 6, 10 USC § 806; United States v Coulter, 3 USCMA 657, 14 CMR 75; United States v Hightower, 5 USCMA 385, 18 CMR 9; United States v Haimson, 5 USCMA 208, 17 CMR 208; United States v Blau, 5 USCMA 232, 17 CMR 232; United States v Turner, 7 USCMA 38, 21 CMR 164; United States v Judd, 11 USCMA 164, 28 CMR 388.
Our difference of view is predicated upon the application of the foregoing rule to the facts before us. The author of the principal opinion finds that they do not establish the assistant staff judge advocate’s participation in this case as a de facto member of the prosecution and likens the situation to that before us in United States v Haimson and United States v Blau, both supra. I respectfully disagree, for 1 believe that any reasonable scrutiny of the record will at once establish the distinction between this case and our former decisions.
Following a pretrial investigation of the charges, Lieutenant Colonel Carl E. Burget, acting as staff judge advocate in accused’s case, executed a pretrial advice to the convening authority on June 23,1961, in which he recommended trial by general court-martial upon charges of larceny and forgery, in violation of Code, supra, Articles 121 and 123, 10 USC §§ 921, 923. The convening authority dir'ected accused’s trial in accordance with the advice.
On July 3, 1961, Colonel Burget forwarded to the trial counsel an extraordinary document entitled “Advice to Trial Counsel — Charge Sheets and Allied Papers (2nd Lt John H. Malli-cote, II, AO3095682, 4627th AB Sq, Custer AFS, Battle Creek, Mich),” which is fully set out in the appendix hereto.
The “Advice” embraced ten pages of detailed instructions concerning the presentation of the Government’s case. As will be noted from the appendix, it commenced with an adjuration to try the case promptly, followed with a delineation of the charges and their elements, and concluded with eight pages in which the order and substance of the proof, the question of corpus delicti, issues which might be raised by the defense, and instructions to be requested were set forth to a degree found only in the most carefully prepared trial briefs.
The substance of each witness’ testimony was set forth and its relation to the case depicted. Typical of these instructions is the following extract relating to the prosecution’s opening witness:
“a. 1st Lieutenant Charles F. Taylor should be called to testify: as to the identity of the accused; that he, Lt. Taylor, is aware that Lt Mallicote was the Secretary of the Officers’ Open Mess at Custer Air Force Station from April 1960 to 8 January 1961 at which time he was relieved and succeeded by Lt Taylor. Subsequent to his assuming duties of Secretary of the Open Mess, Lt Taylor while examining a canceled check from a previous bank statement discovered that the payee was an Airman Second Class John Straub who had previously worked for Lt Taylor at the Motor Pool, Custer Air Force Station, in the summer of 1960. While the reported investigation is not clear as to which check Lt Taylor uncovered, this, of course, should be brought out in his examination. Lt Taylor should additionally testify that he was aware of the fact that Airman Straub had departed Custer *380Air Force Station prior to the date of the check, that he had uncovered. A proper foundation should be laid utilizing Lt Taylor’s testimony concerning the particular check and where precisely it was uncovered. You should then be able to introduce this particular check in evidence.” [Emphasis supplied.]
A similar course was followed with each witness to be used by the Government and, as noted above, with respect to expected issues and instructions. Exemplary of the further detail of the brief are its comments on an expected question of voluntariness in connection with accused’s confession:
“a. Voluntariness of Confession— It appears from the Report of Investigation that defense may attempt to resist the introduction of the confession based on the fact
“ (1) That accused’s statement was taken previously by persons other than the OSI Agent without a proper warning of his rights under Article 31, and
“(2) That the information obtained by the OSI Agent was based on these allegedly previous involuntary statements. Specifically, defense claimed in the investigation that accused gave a statement to Colonel Hanson, Colonel Herbes, and Lieutenant Dearborn. In this regard it appears from Mr. Star’s statement (Exhibit 10) that the accused may have made a statement to Colonel Hanson and Colonel Herbes; however, it is evident that accused solicited these interviews; and statements such as this are made spontaneously. These statements are admissible notwithstanding the Commander’s failure to warn the accused of his rights. The basis of this rule is that these types of statements do not fall within the class of statements obtained by interrogation or request during the official investigation (CM 364606, Simpson, 12 CMR 255; ACM 6913, Matthews, 13 CMR 615).”
Other discussion was included regarding issues of venue, weight of the evidence, multiplicity, indefiniteness of the charges, and proof of intent. Extensive citations to decided cases were included.
An entire section of the “Advice” dealt with instructions, informing the trial counsel not only of the nature of those which he should request but giving exact references to appropriate sections of the Air Force’s Court-Martial Instruction Guide. Even the maximum punishment was computed for the prosecutor, and he was told the need for advice to the court thereon.
At the trial, counsel for the government carefully followed the “Advice” so prepared for him. After accused was convicted and sentenced, Colonel Burget prepared the post-trial review of the proceedings for the convening authority. In it, among other things, he devoted considerable attention to the sufficiency of the circumstantial evidence to establish accused’s intent to steal and the intent to defraud, the question of multiplicity and the volun-tariness of accused’s confessions, all of which he had earlier covered in his “Advice” to the trial counsel. After careful consideration of an extensive post-trial evaluation of accused, he recommended reduction of the adjudged confinement to two years and approval of the balance of the sentence. The convening authority took action in accordance with Colonel Burget’s recommendations.
Code, supra, Article 6(c), 10 USC § 806, provides:
“(c) No person who has acted as member, law officer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case.” [Emphasis supplied.]
In enacting the Code, the Congress expressly noted that the foregoing provision was “designed to secure review by an impartial staff judge advocate or legal officer.” Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 898, 901; House Report No. 491, 81st *381Congress, 1st Session, page 13. It prohibits the employment of anyone as the draftsman of the post-trial review who has previously acted in a partisan capacity. Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 138.
In United States v Coulter, supra, at page 659, the Chief Judge declared for the Court:
“Under the Uniform Code no person may serve in the same case in the dual role of trial counsel and Staff Judge Advocate to the reviewing authority. Such conduct is proscribed in mandatory terms by Article 6(c), . . .
“. . . In vie%o of the purpose and the language of Article 6(c), supra, we conclude that the error is one which evokes the principles of general prejudice.
“The obvious purpose of the lawmakers in prohibiting trial■ counsel from subsequently acting as the Staff Judge Advocate on the review of the same case was to assure the accused a thoroughly fair and impartial review.” [Emphasis supplied.]
The staff judge advocate in Coulter, supra, was the actual trial counsel. In United States v Hightower, supra, we pointed out that the legislative prohibition also extended to one who had acted as prosecutor in the case of a co-accused. And in United States v Clisson, 5 USCMA 277, 17 CMR 277, at page 280, we reiterated that:
“Article 6 (e) of the Uniform Code is designed to assure a fair and impartial review. Fairness and impartiality are demanded not only with respect to the law, but in connection with the sentence. Here, as in United States v Coulter, supra, we do not doubt the personal integrity of trial counsel, but we cannot overlook the fact that his previous antagonistic role prevents his exercising that degree of impartiality required by the Code.” [Emphasis supplied.]
In the Haimson ease, supra, an endorsement to the charge sheet was prepared by an assistant.staff judge advocate, which, while “particularized in some respects,” contained “nothing that a staff judge advocate could not say permissibly in advising the convening authority.” Expressly noting that the endorsement did not “constitute an outline of trial strategy, but rather an exhortation to effect a full and fair presentation of the evidence,” we found that the assistant was not disqualified to participate in the post-trial review by reason of having acted on behalf of the Government. See also United States v Blau, supra.
In my opinion, Colonel Burget’s execution of the “Advice” to the trial counsel beyond cavil establishes his status as a member of the prosecution. The document which he authored constituted a thoroughly detailed and well researched brief of the facts and law applicable to the referred charges. The order of the witnesses is set out and the line of inquiry to be pursued with each set forth. Defense issues and motions are anticipated and relevant authorities to meet them gathered. Instructions to be requested from the law officer are included as well as discussion of the legal problems involved. Indeed, even the maximum possible sentence is multiplied out for the trial counsel’s use. With this brief in hand, he had no occasion to entertain “any uncertainty as to just what should be done at any stage of the trial . . . [nor] any fear of overlooking some element of proof necessary.” Goldstein, Trial Technique, section 109. In short, as appellate defense counsel contend, Colonel Burget here played the role of solicitor to the trial counsel’s performance as barrister.
Turning to the post-trial review, it is equally apparent that Colonel Burget there passed upon many of the issues concerning which he had already devised a means to meet in his pretrial instructions to the trial counsel. We find, therefore, in this case direct evidence of the partiality and bias which Congress sought to avoid by enactment of Code, supra, Article 6(c), for as we pointed out in United States v Renton, 8 USCMA 697, 25 CMR 201, at page 701:
*382“. . . Human nature being what it ' is, the very fact of being called upon to condemn or countenance one’s own workmanship cannot create a healthy outcome. . .
Turning to my brothers’ rationale, I find dependence by them almost solely upon . our decisions in Haimson and Blau, both supra. I suggest, however, they overlook the fact that we there took the trouble to point out that the memoranda involved were nonpartisan in approach and in nowise constituted an outline of trial strategy for the United States. On that basis alone, we held the assistant staff judge advocate not to have been made a member of the prosecution by reason of having prepared these endorsements.
Here, however, the situation is quite different. The “Advice” consists of a clearly partisan outline of trial strategy for the Government and informs counsel precisely how to insure that a strong case is presented. Not only does it mention no factor favorable to Lieutenant Mallieote, but it actually anticipates defense issues and states methods of dealing with them. In short, this is exactly the sort of memorandum with which we said we were not dealing in Haimson and Blau and which we there inferentially condemned.
The principal opinion also points out that a copy of the “Advice” was to be served on defense counsel, a direction which, in its view, seriously conflicts with the concept of the document being “trial strategy.” Such a procedure cei*-tainly offers some advantage to the defense, but I suggest that its consideration is immaterial here. The question is not whether Colonel Burget sought to apprise defense of what the Government intended to do, but whether the document itself was a trial brief. Indeed, I suppose according weight to such service means the actual trial counsel may put himself beyond the prohibition in Article 6(c) and become the author of the review if he foresightedly hands a copy of his brief to the defense counsel.
Finally, the majority lean upon the slender reed of Colonel Burget’s recommendation that confinement included in the sentence be reduced to only two years’ imprisonment as being inconsistent with the role of a prosecutor. Aside from the fact that I am unwilling to ascribe vindictiveness to counsel for the Government, I point out that Bur-get’s recommendation was based upon an extensive post-trial clemency report containing much information not available at the time of the actual hearing. I suggest, therefore, that this post hoc consideration is hardly germane. The question before us is not whether some reduction in the sentence was recommended but whether an impartial officer made the recommendation. United States v Coulter, supra; United States v Clisson, supra.
In sum, then, I am compelled to conclude that the document here involved is a detailed trial brief and that its author, Lieutenant Colonel Burget, was disqualified to prepare the post-trial review. When my brothers reach the contrary conclusion, I believe they ignore the import of the Congressional mandate and effectively repeal Code, supra, Article 6 (c), as to all except appointed members of ' the prosecution staff. In good conscience, I cannot so construe the statute nor agree that Burget could write the document here without aligning himself with the United States. Accordingly, I register my dissent from the affirmance.
I would reverse the board of review and order further proceedings under Code, supra, Articles 61; 64, 10 USC §§ 861, 864.
*383Appendix:
c HEADQUARTERS
o 80TH AIR DIVISION (SAGE)
p UNITED STATES AIR FORCE
y TRUAX FIELD, WISCONSIN
Reply to
Attn, of: 30-CJA 3 July 1961
Subject: Advice to Trial Counsel — Charge Sheets and Allied Papers (2nd Lt John H. Mallicote, II, AO3095682, 4627th AB Sq, Custer AFS, Battle Cheek, Mich)
To: Captain Walter G. Kozlowski
Hq 30th Air Division (SAGE)
Truax Field, Wisconsin
1. Charge Sheet and allied papers in the case of 2nd Lieutenant John H. Mallicote, II, AO3095682, 4627th Air Base Squadron, Custer Air Force Station, Battle Creek, Michigan, have been referred to you for trial as trial counsel of the General Court-Martial appointed by Special Orders Number C-4, this Headquarters, dated 27 June 1961. Prompt trial of this case is desired, and all delays in excess of the time standards established by AFR 111-10, dated 27 September 1951, will be fully explained in a letter attached to the record of trial.
2. You will advise this Headquarters of the date of trial as soon as it has been determined, and should the case not be disposed of within two weeks after you receive the Charges, you will submit the reasons therefor in conformance with the Manual for Courts-Martial, 1951, Paragraph 44e (1).
3. The accused is charged:
a. Charge I — Violation of the Uniform Code of Military Justice, Article 121. One Specification alleging that from 15 October 1960 to on or about 2 January 1961 the accused did steal the sum of $185.20 from the Officers’ Open Mess, Custer Air Force Station, Battle Creek, Michigan.
b. Charge II — Violation of the Uniform Code of Military Justice, Article 123 — Forgery. Specifications 1 through 5 with forging the endorsement of “John Straub” on five separate checks of the Officers’ Open Mess, Custer Air Force Station, dated 31 October 1960 ($35.80); 15 November (1960) ($41.90); 30 November 1960 ($40.00); 15 December 1960 ($30.00); and 2 January 1961 ($37.50).
4.The elements of the offense of larceny are:
a. That at the time and place alleged the accused wrongfully (took) (obtained) or withheld from the possession of the true owner the property described in the Specification.
b. That such property belonged to certain persons named or described.
c. That such property was of the value alleged or some lesser value in which case the findings should be in the lesser amount.
d. That the taking, obtaining or withholding by the accused was with the intent to permanently deprive or defraud another person of the use and benefit of the property or permanently to appropriate the same to his own use or for the use of another person other than the true owner (U. S. v Aldridge (No. 686) 2 USCMA 330; 8 CMR 130; ACM 12672, King, 22 CMR 856; U. S. v Lane (No. 10,645) 9 USCMA 369, 26 CMR 149).
The elements of forgery are as follows:
a. That at the time and place alleged the accused falsely made a certain signature as alleged;
*384b. That the signature would, if genuine, apparently impose a legal liability on another or change the legal right or liability to his prejudice;
c. That the accused thereby intended to defraud. The term “defraud” means to deprive another person of something of value by cheating, deceiving, misleading, tricking, or causing that person to believe as true that which is false (U. S. v Addye (No. 8694) 7 USCMA 643, 23 CMR 107); CM 39 1083, Plante, 22 CMR 389; ACM 14153, Pena, 24 CMR 810).
5. The following matters involving prosecutor’s case in chief are set forth for your consideration:
a. 1st Lieutenant Charles F. Taylor should be called to testify: as to the identity of the accused; that he, Lt Taylor, is aware that Lt Mallicote was the Secretary of the Officers’ Open Mess at Custer Air Force Station from April 1960 to 8 January 1961 at which time he was relieved and succeeded by Lt Taylor. Subsequent to his assuming duties of Secretary of the Open Mess, Lt Taylor while examining a canceled check from a previous bank statement discovered that the payee was an Airman Second Class John Straub who had previously worked for Lt Taylor at the Motor Pool, Custer Air Force Station, in the summer of 1960. While the reported investigation is not clear as to which check Lt Taylor uncovered, this, of course, should be brought out in his examination. Lt Taylor should additionally testify that he was aware of the fact that Airman Straub had departed Custer Air Force Station prior to the date of the check, that he had uncovered. A proper foundation should be laid utilizing Lt Taylor’s testimony concerning the particular check and where precisely it was uncovered. You should then be able to introduce this particular check in evidence.
b. Mrs. Dorothy Gibson should be called to testify: that She was employed as Bookkeeper at the Custer Air Force Station Officers’ Open Mess during a period of time which is not precisely set forth in the investigation, but it is assumed that the period of time of employment include the months of October, November, and December to the present date. She should be able to testify that she is familiar with the procedures for employment of persons by the Mess, particularly in the hourly wage class, including the maintaining of journals, ledgers, payrolls, and financial statements. She should, of course, identify the accused and testify that he was the Officer in Charge during the particular periods from October 1960 through 8 January 1961. From her testimony you should be able to clearly show that either the Club Steward, Technical Sergeant Pharris, or the Officer in Charge, in this case Lt Mallicote, supplied her with the names of those persons who were to be paid or those persons who were employed by the Club in order that she might enter the names in the payroll (see Infra c).
Specifically, she should be able to identify Exhibit 12, the particular payroll, and summary' ledger sheet concerned with Airman Second Class John Straub. She should indicate how the information is placed on this sheet and the source of the information. You should encounter no resistance in introducing this particular journal, since it appears to be a business entry (U. S. v Villasenor (No. 5895) 6 USCMA 3, 19 CMR 129, 134; ACM 5561, Roberson, 12 CMR 768). She should also be familiar with the five checks, the subject of Charge II, in that she can identify her own handwriting which appears on these checks with the exception of the signature of the maker or endorser and, of course, the endorsement on the back. Again, you should emphasize the connection between the information contained on the check including the amount and the source of this information. Mrs. Gibson should also testify that either she observed that the accused countersigned these checks or that she is familiar with his signature in that she has seen the accused sign his name on various occasions in order to establish that he did in fact countersign this check. From the investigation it appears that she did not witness the endorsement of the check, and this should be brought out in her *385testimony. She can also testify that that these checks were returned from the bank, and the fact that the Club does maintain an account in the Augusta Branch Bank of Industrial State chain, Kalamazoo, Michigan. She should also testify based on her own knowledge concerning the check cashing fund that is maintained apparently by the Secretary of the Mess and included in this explanation should be the amount normally maintained and where the fund is physically located. The Report of Investigation does not establish a shortage or loss in the accounts of the Club. Mrs. Gibson should be able to furnish the information to make this showing. This can be accomplished by introduction of the various account records and documents that she maintained and/or that she has examined. She should be able to testify as to this shortage from her examination of the books and records. It is not necessary that you lay a foundation that she is an expert witness, but rather based on the showing that you have already made as to her duties and responsibilities, should establish her as a skilled witness, to wit: a person of ordinary capacity who possesses special knowledge not common to others or outside the limits of common observation, gained from experience, and which knowledge may relate to the defendant or to some particular business, or subject matter, or some point in issue (Underhill’s Criminal- Evidence, 5th Edition, Volume 2, Section 305, Page 764). While she cannot testify as to content of these particular documents, she can explain their meaning in order to establish the shortage.
c.Technical Sergeant R. W. Pharris should be called to testify: that he is the Club Steward and was acting in this capacity during the period of time that the accused was Secretary of the Mess. He should indicate his familiarity with the procedures involving the payment of wages, the class of workers who receive an hourly recompense. He should particularly emphasize the fact that one of his responsibilities is to maintain time sheets on these employees and that most generally he provides the information contained on the time sheets to the Bookkeeper for the purposes of making out payroll. However, in the case of Airman Straub he provided no such information to Mrs. Gibson. That Airman Straub was not an employee of the Officers’ Open Mess in October, November, December 1960 or January 1961.
d. Marguerite Ratcliff, Assistant Cashier of the Augusta Branch, Industrial State Bank, Kalamazoo, Michigan, or some other qualified officer should be called to testify: that she is familiar with the account or accounts of the Officers’ Open Mess, Custer Air Force Station, that are maintained at her branch bank. She should be able to describe these various accounts concentrating on the check cashing fund account if it is maintained separately in the bank. She should testify that the checks that are the subject of Charge II were deposited at her bank and paid, and she should produce the records maintained therein to substantiate this testimony. Her testimony and the records that she provides you should also corroborate the testimony of Mrs. Gibson concerning the shortage in the Check Cashing Fund. These matters are not available in the Report of Investigation; however, they should be available for trial.
e. Airman Second Class John Straub, 677th AC&W Squadron, Nova Scotia, Canada, should be called to testify: that the period of time that he was employed at Custer Air Force Station; the fact that he was employed during the early part of 1960 in the Officers’ Open Mess; that he departed Custer Air Force Station on or about 24 October 1960, PCS for his present duty assignment. He should indicate whether or not he was acquainted with the accused. He should further testify that he did not authorize the accused or anyone else to sign his name to the back of the checks which are the subject of Charge II, nor did he authorize anyone to place his name on the' Officers’ Open Mess payroll for the months of October through December 1960 and January of 1961. He should also state he did not receive any money from Lt Mallicote subsequent to his transfer from Custer Air Force Station. (You may desire *386to utilize a written stipulation in lieu thereof.)
6. Thus, you should establish a corpus delicti in reference to the Specification in Charge I (U. S. v Isenberg (No. 579) 2 USCMA 349, 8 CMR 149) and in reference to the Specifications under Charge II (U. S. v Manuel, (No. 2638) 3 USCMA 739; 14 CMR 157) permitting the introduction of accused’s pretrial statement. To accomplish this you should call as a witness Special Agent Robert A. Star of the Office of Special Investigations, Custer Air Force Station, Michigan. Through Mr. Star’s testimony you should establish a proper foundation for the introduction of the accused’s pre-trial statement. Included in the foundation is an affirmative showing as to the voluntariness thereof (Paragraph 140a, MCM, 1951; U. S. v Monge, (No. 9) 1 USCMA 95, 2 CMR 1). The original statement of the accused in his own handwriting, if available, should be utilized. From reading the expected testimony of Mr. Star contained in Exhibit 10, it would appear that you will be able to meet the requirement of voluntariness. You may desire to utilize the testimony of Mr. Star and introduce the oral confession of the accused as made to Mr. Star only; however, while this is entirely permissible, that is, you are under no requirement to introduce the written confessions, it would be better to utilize the latter (U. S. v Molette, (No. 2735) 3 USCMA 674, 14 CMR 92; citing MCM, 1951; also Manuel, Supra). Prior to trial you should determine from Mr. Star whether or not the resulting statement (Exhibit 6) made by the accused on 20 February 1961 was a collection of statements or if the statement made by the accused is in any way different from the original statement, if any, or from any other statement made by the accused. If the only difference is in choice of words or corrections in grammar, you should include this in laying your foundation at the time of trial, and objection by defense that accused was not the author of this statement or the only showing consists of changes of grammar, minor corrections, and even different words where there is no change in substance or content is without merit (U. S. v Dickenson, (No. 6238) 6 USCMA 438, 20 CMR 154).
7. Defense may raise the following issues, which you should be prepared for:
a. Voluntariness of Confession — It appears from the Report of Investigation that defense may attempt to resist the introduction of the confession based on the fact
(1) That accused’s statement was taken previously by persons other than the OSI Agent without a proper warning of his rights under Article 31, and
(2) That the information obtained by the OSI Agent was based on these allegedly previous involuntary statements. Specifically, defense claimed in the investigation that accused gave a statement to Colonel Hanson, Colonel Ilerbes, and Lieutenant Dearborn. In this regard it appears from Mr. Star’s statement (Exhibit 10) that the accused may have made a statement to Colonel Hanson and Colonel Herbes; however, it is evident that accused solicited these interviews; and statements such as this are made spontaneously. These statement are admissible notwithstanding the Commander’s failure to warn the accused of his rights. The basis of this rule is that these types of statements do not fall within the class of statements obtained by interrogation or request during the official investigation (CM 364606, Simpson, 12 CMR 255; ACM 6913, Matthews, 13 CMR 615).
b. Venue — From the Report of Investigation it appears that defense may persist in his demand for a change of venue or change of place of trial. This is properly accomplished by motion for appropriate relief. It is presumed that a fair trial can be had at Custer Air Force Station. The burden is, of course, on the accused to establish that the accused cannot be afforded a fair and impartial trial because of hostility or prejudice existing against him at the place of trial. It is also well settled that the fact that newspaper articles give publicity to a crime charged or to matters connected with the prosecution thereof are not alone sufficient to con*387stitute a showing of local prejudice warranting a change of venue. It must be additionally shown that these articles so inflamed or aroused public feeling in the community that the accused cannot obtain a fair and impartial trial. In this particular ease the court members appointed to try this ease are not from Custer Air Force Station. In the case of challenge of the court members the rule is much the same, to wit: that regardless of what they have heard or read the information must have influenced them to such degree as to prevent them from fairly and impartially trying the case both from the standpoint of the Government and from the accused (ACM 8768, Doyle, 17 CMR 615; U. S. v Gravit, (No. 4889) 5 USCMA 249, 17 CMR 249).
c. Charge II — Weight of the Evidence— Defense may attempt to establish that there is no evidence showing that the check was negotiated or uttered by the accused. Failure to show that the check was in fact negotiated or that the accused received something of value is not fatal, since, in the first place, he is not charged with uttering a check, and, secondly, it is not material that the accused intended to profit or did so (ACM 16252, Wilson, 28 CMR 844).
d. Multiplicity—
(1) In the event the court finds the accused guilty of the Specification of Charge I and Specifications 1 through 5 of Charge II, multiplicity will arise for sentencing purposes. You are advised in this regard that when the aforesaid occurs the maximum imposable punishment is dismissal, confinement at hard labor for twenty-five (25) years, and total forefeitures of all pay and allowances (U. S. v Soukup, (No. 533) 2 USCMA 241, 7 CMR 17).
(2) You will note that Charge I alleges a single larceny rather than five separate larcenies. Whether or not the Specification under Charge I amounts to one larceny or five separate larcenies is a question of law and fact dependent upon the proof (U. S. v Hall, (No. 7117) 6 USCMA 562, 20 CMR 278; U. S. v Swigert, (No. 9881) 8 USCMA 468, 24 CMR 278). Even assuming, arguendo, that five separate larcenies are in fact proved, under the theory of the Taylor case, the accused cannot complain from the standpoint of punishment, since the total punishment for five separate larcenies involving a value of less than $50.00 or more than $20.00 is the same as the punishment for one larceny of a value of over $50.00, to wit: inter alia, five (5) years’ confinement at hard labor (U. S. v Taylor, (No. 6473) 6 USCMA 289, 20 CMR 5). It is important to note that the questions involved here cannot be determined until the proof is in and a premature motion on the part of the defense should be resisted.
e. Indefiniteness as to Date — Charge I: A Specification charging the accused with an offense during a certain period is not indefinite or uncertain merely because it fails to set forth the exact date upon which the offense took place, where there is no indication that the accused was thereby misled and since time is not of the essence of such offense (ACM 5653, Dolen, 7 CMR 666, 674).
f. Intent — Charge II — Proof of Intent by Circumstantial Evidence: Defense may attempt to establish that there is no evidence showing the accused intended to defraud. In this regard it is noted that Airman Straub will testify that he had not given permission to the accused to sign his name to any check. In addition, the evidence should establish that the accused was familiar with Airman Straub. These circumstances together with the other evidence concerning accused’s familiarity with the procedures for placing employees’ names on the payroll and making out a check is sufficient to negate good faith or ignorance on the part of the accused and, in turn, establishes the required intent (CM 391083, Plante, 22 CMR 389).
8. INSTRUCTIONS: You should request that the following instructions be given:
a. Larceny: Instruction No. 89, Pages 55 and 56, CMIG.
b. Forgery: Instructions 92, Page 58, CMIG.
*388c. Proof of Intent by Circumstantial Evidence-. Page 122, CMIG.
d. Confessions: Page 116, CMIG.
e. Skilled testimony: Page 118, CMIG.
The remaining mandatory instructions under Art. 61c should be given.
9..If necessary, you should caution the Law Officer not to refer court members to Paragraph 74a, MCM, 1951, but to summarize this paragraph as an instruction. Paragraphs 3 and 4, Court-Martial Instruction Guide (U. S. v Boswell, (No. 9345) 8 USCMA, 23 CMR 369). The members of the court should not be permitted access to the Manual for Courts-Martial at any time during the trial of this case, and this should be reflected in the record (U.S. v Rinehart, (No. 9647) 8 USCMA 402, 24 CMR 212).
10.In the event of a finding of guilty of the Specification of Charge I and the five Specifications of Charge II, the maximum punishment that can be adjudged by the court is dismissal, confinement at hard labor for twenty-five (25) years, and total forfeitures and allowances. The court must be instructed on the maximum permissible punishment (U. S. v Turner, (No. 10,022) 9 USCMA 124, 25 CMR 386).
11. Major General James C. Jensen was in command of this Division on the date the court was appointed and on the date the case was referred to trial. This should be reflected in the record.
12. In the event any of the appointed members of the court request to be excused the request for such excuse containing the reasons therefor will be made by electrical message or telephone to the convening authority (U. S. v Allen, (No. 5611) 5 USCMA 626, 18 CMR 250; Paragraph 45, Air Force Manual 110-8).
13. A copy of the Charges and the allied papers, including this letter of instruction, will be served immediately upon the accused upon receipt by you. Trial will not be held until five (5) days after the service of Charges upon the accused unless he consents thereto to the trial of the case, bearing in mind that the Law Officer must be furnished with timely notice of trial. After trial you will cause the record thereof to be prepared and forwarded to this Headquarters in accordance with the provisions of Paragraph 82, ACM, 1951.
/s/ Carl E. Burget
CARL E. BURGET
Lt Colonel, USAF
Acting Staff Judge Advocate