United States v. Suggs

Ferguson, Judge

(dissenting):

I dissent.

The single specification in this case, in Charge V, alleges that the accused, at a specified time and place, did “assault Armed Forces Policemen, persons then having and in the execution of military police duties.” The only question to be decided is whether the failure to specify by name the “Armed Forces Policemen” is a fatal defect. I believe that it is, especially since paragraph 2075, Manual for Courts-Martial, United States, 1969, lists the identity of the person assaulted under this statute as the first element of this offense. His occupation as a military policeman and the accused’s knowledge thereof are set forth as the second and third elements respectively. However, I do not base my view solely on the Manual provision for I believe the question has already been decided in this Court and the doctrine of stare decisis should prevail.

In United States v Curtiss, 19 USCMA 402, 403, 42 CMR 4 (1970), this Court, in a per curiam opinion, reversed the accused’s conviction of specifications 1, 7, and 11 of Charge I, on the ground of legal insufficiency, because these specifications simply alleged, in material part, “that the accused did wrongfully appropriate ‘personal property’ belonging to Marine Corps Facilities at Camp Pendleton, California.” As we stated in Curtiss:

“. . . An allegation of this kind ‘totally deprives the accused, appellate reviewing agencies, and those who may in the future examine the charge, of any information concerning the nature of the res which’ the accused misappropriated, and is legally insufficient. United States v Autrey, 12 USCMA 252, 254, 30 CMR 252 (1961).”

We adopted this view despite the fact that these particular specifications were found multiplicious with similar specifications in Charge II, which alleged, in haec verba, the passage by the accused of bad checks, of the same value, on the same dates, and at the same place.

Curtiss, as did this accused, pleaded guilty, did not request a bill of particulars, and had negotiated a beneficial pretrial agreement with the convening authority. Failure to attack a specification because it does not state an offense cannot be waived by a plea of *200guilty. United States v Fout, 3 USCMA 565, 567, 13 CMR 121 (1953), and cases cited. And “it is a settled rule that a bill of particulars cannot save an invalid indictment.” Russell v United States, 369 US 749, 770, 8 L Ed 2d 240, 254, 82 S Ct 1038 (1962). Although appellate defense counsel in this case have raised the issue on appeal at this level, the question was considered in Curtiss only by virtue of the action of this Court in first noticing the error on its own.

My brothers, by perusing the pretrial and post-trial papers which describe the events leading to the questioned specification, find sufficient information therein to protect the accused from twice being placed in jeopardy for this offense (Article 44, Uniform Code of Military Justice, 10 USC § 844). But this same information was present in the actual record of trial in Curtiss, as noted above, and was found not to be sufficient to rescue a fatally defective specification, for, as the Chief Judge, writing for a unanimous Court in United States v Fout, supra, said at page 567:

“. . . Moreover, the presence of evidence in the record cannot remedy a defective charge. United States v Soukup, 2 USCMA 141, 7 CMR 17 [1953].”

This accused was charged not with the offense of simple assault, for which he could have been sentenced to confinement at hard labor for three months and forfeiture of two-thirds pay per month not to exceed three months, but with the more heinous offense of assault on a military policeman, the maximum punishment for which is dishonorable discharge, confinement at hard labor for one year, and total forfeitures. Paragraph 127c, Manual, supra, 1969. See also paragraph 2075, Manual, supra. In this regard, it is akin to the Federal statute, Title 18, United States Code, section 111, which makes it an offense to assault, resist or impede certain officers or employees of the United States Government.1 My brothers seem to agree for they cite, in support of their holding, the decisions in Garza v United States, 159 F2d 413 (CA 5th Cir) (1947), and Young v United States, 288 F2d 398 (CA DC Cir) (1961), certiorari denied, 372 US 919, 9 L Ed 2d 725, 83 S Ct 734 (1963). Garza, however, was concerned with whether it was “necessary for the indictment to contain a definition of the word assault,” and held that it was not since assault “has a fixed and determined meaning in law. Norris v United States, 5 Cir, 15 F2d 808.” (Id., at page 414.) It is not clear in Garza whether the name of the assaulted inspector of the Customs Bureau of the Treasury Department of the United States was included in the indictment, for the indictment was not set forth in haec verba in the opinion, only that portion which related to the issue under consideration being referred to and not even that in quotations. Young v United States, supra, is inapposite for, although it did raise the issue of the failure to identify the persons who were assaulted (with intent to commit robbery), the court found that the statute under which the defendant was charged “does not limit the person intended to be robbed to a particular class or category of persons.” (Id., at page 400.)

In my opinion, the failure to allege the person or persons victimized in the assault, since they belonged to a particular class (cf. Young v United States, supra), deprived the allegation of a critical element essential for proper pleading. Paragraph 2075, Manual, supra; Russell v United States, and United States v Curtiss, both supra. The rule of stare decisis deserves better treatment than it is accorded in this case. United States v Curtiss, supra.

I would reverse the decision of the Court of Military Review as to Charge V and its specification and order it dismissed. I would return the case to that court and direct that the sentence be reassessed on.the basis of the remaining findings of guilty.

The identity of the Federal employees protected by this statute is designated in Title 18, United States Code, section 1114.