United States v. Turkali

Opinion of the Court Paul W. Brosman, Judge: On June 5, 1954, the accused airman —together with two Englishmen described as Cohen and Fisher — was taken in custody by British police officers in London. A search of Turkali’s private automobile disclosed the presence of three cases of eigarets, later identified as the property of the Air Force Europe Exchange. Charged with larceny — in violation of Article 121, Uniform Code of Military Justice, 50 USC § 715— the accused denied his guilt at the trial, and insisted that he had merely agreed to deliver the eigarets to the two British subjects in compliance with the request of a friend. However, Cohen and Fisher were not at that time called as witnesses either to confirm or deny the accused’s story. On cross-examination, the latter admitted to knowledge that the eigarets were probably stolen, and defense counsel in his closing argument conceded Turkali’s guilt of having received stolen property. After having been duly instructed by the law officer, the court-martial retired to deliberate on its findings. Approximately ten hours later, the president reopened the court and requested that Cohen and Fisher be called to testify. Informed that these two persons could not be located — either by military authorities or British law enforcement officials — the president then sought in behalf of the tribunal clarification of the meaning of paragraph 55, Manual for Courts-Martial, United States, 1951. Further colloquies between the law officer and court-martial members took place, at the conclusion of which the president announced: “It is the recommendation of the court that paragraph 55 of the Manual for Courts-Martial be invoked and the matter reported to the convening authority by the trial counsel for directions in the matter.” Eight days later, the court-martial reconvened pursuant to a direction from the convening authority that its members proceed to findings on the original charge and specification. Defense counsel promptly moved to dismiss on the ground that the prior action of the body in invoking paragraph 55 equated to findings of not guilty. This motion was overruled, Cohen and Fisher — who had since been found — both testified to the lush criminal circumstances under which their acquaintance with the accused had burgeoned, and Turkali was convicted in short order. The findings of guilty, as well as the sentence to dishonorable discharge, the usual forfeitures, and confinement at hard labor for one year, were affirmed by appellate authorities. Thereafter we granted the accused’s petition for review to determine whether the reliance of the court-martial on the terms of paragraph 55 of the Manual constituted a determination that the appellant was not guilty of the larceny charged against him. II Paragraph 55 of the Manual, provides in part as follows:1 “a. General. — If at any time during the trial it becomes manifest to the court that the available evidence as to any specification is not legally [343] sufficient to sustain a finding of guilty thereof or of any lesser included offense thereunder, but that there is substantial evidence, either before the court or offered, tending to prove that the accused is guilty of some other offense not alleged in any specification before the court, the court may, in its discretion, either suspend trial pending action on an application by the trial counsel to the convening authority for direction in the matter or it may proceed with the trial. In the latter event a report of the matter may properly be made to the convening authority after the conclusion of the trial.” In appellate defense counsel’s view, when a court-martial invokes the provision of the Manual set out above, its action embraces an implied announcement of findings of not guilty of the offense alleged and all lesser offenses included thereunder. Thus, the defense insists, when the court returned the record of trial to the convening authority pursuant to paragraph 55, the finders of fact — in legal effect— proclaimed that they had found the evidence before them insufficient to sustain findings of guilty. And since this procedure amounted to an acquittal —the argument concludes — the convening authority was precluded by Article 62 of the Code, 50 USC § 649, from returning the record to the court for reconsideration. We find difficulty in accepting this strained interpretation of the rather unusual Manual provision under consideration. As we understand its language, it specifically provides for two alternative courses of action by a court-martial in a situation such as the one before us now.2 (1) Within its discretion the court may suspend trial pending action on an application by trial counsel to the convening authority for advice. (2) Its members may instead proceed to a conclusion of the trial, and report to the convening authority thereafter— presumably on the likelihood of the accused’s guilt of another unincluded offense. We are sure that the plain terms of the Manual refute the argument advanced by the accused’s lawyers. To suspend trial pending direction most certainly involves a different procedure from an election to terminate the proceedings entirely. Indeed, if an invocation of paragraph 55 must be deemed inevitably to result in acquittal, the provision sanctioning suspension of trial would be pointless — for the reason that a convening authority is without power to act in any manner on a ruling which amounts to findings of not guilty. Manual, supra, paragraph 866(2). Moreover, appellate defense counsel themselves felt compelled to concede that a common illustration of the sort of problem arising under paragraph 55 is to be found in the situation in which evidence is submitted which tends to show the accused guilty of an offense other than the one with which he is charged — as, for example, when during a trial for the larceny of a watch, the proof shows that the article taken was [344] instead a compass. Manual, supra, paragraph 55b. In such a case, the court-martial may suspend trial and refer the matter to the convening authority, who will ordinarily withdraw the charge from the court and prepare a new one. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 66. However, the convening authority may not withdraw a specification if the court has finally terminated the proceedings thereon either by findings, or by a ruling which amounts to findings of not guilty. Manual, supra, paragraph 56a. Clearly, if we are to accept the conclusion urged by the defense here, the convening authority must be regarded as powerless to act in cases where the trial is held in abeyance for the express and single purpose of awaiting his guidance. Obviously, no such result was intended by the framers of the Manual, however inartfully the subparagraph in question may have been drafted. As we view the quoted Manual provision, an application by trial counsel 'to the convening authority for direction can only mean that the trial is indefinitely postponed until the latter acts. This action may either take the form of a withdrawal of the specification in question followed by the preparation of new charges, or the entire case against the accused may be dropped without further proceedings. On the other hand the court-martial may be instructed— as in this case it was — to proceed to findings under the original charge. Of course, the tribunal of its own motion may wish to follow the second route, in which event it may conclude the trial with findings of not guilty — or a ruling to that effect — and report this action to the convening authority, together with other relevant comments. Appellate defense counsel have cited to us certain service authorities which hold that the amendment of a specification to allege a different offense constitutes a withdrawal of the original specification and a termination of the trial. They help us not at all. In the case at bar there was no sort of attempt to conform pleadings to proof. The belated testimony of Messrs. Cohen and Fisher did not in any degree concern an offense other than the one charged; on the contrary it was directly responsible for placing the accused behind bars for the commission of the theft alleged on the original charge sheet. Nor do we regard the case of United States v Lubelski [ACM 2452], 2 CMR (AF) 725, cited by appellant, as controlling. In that case the court-martial formally announced in oyen court that the evidence was not legally sufficient to support findings of guilty of the offense charged. During the instant trial, however, the court-martial expressly requested that the missing witnesses, Cohen and Fisher, be called to testify— this after its members had been locked in unsuccessful deliberation for some ten consecutive hours. Unable to agree on findings without further evidence, the court then adopted the only course available to it — that is, action to suspend proceedings and refer the matter to the convening authority. Nowhere in this record do we find the slightest indication that, by following this course, the trial court intended to free the accused. We must therefore hold that, by invoking the provisions of paragraph 55 of the Manual, the court-martial did not thereby announce findings of not guilty of the offense charged. Ill The decision of the board of review is affirmed. Judge Latimer concurs. Footnotes [1] The procedural notion expressed in paragraph 55 of the current Manual, although unusual in civilian thinking, is not a new one in military law — for it is found, phrased in substantially identical language, in both the 1928 and 1949 editions of this source. See Man-ual for Courts-Martial, U. S. Army, 1928, paragraph 74, page 57; Manual for Courts-Martial, U. S. Air Force, 1949, paragraph 74, page 69. It has not been considered necessary to attempt to trace the provision through previous Manuals to its origin. [2] It has been suggested that the term “court,” as it appears in the Manual language under discussion, refers not to the court-martial but rather to the law officer. If the military “judge” had, in fact, been designated by the framers of the Manual as the functionary authorized to take action under the provision in question, it is distinctly arguable that the purposes of paragraph 55 would have been served more effectively. However, because of the countless and compelling arguments which readily may be advanced to refute the contention, it is little short of impossible to say that the section does not provide a procedure under which the court-martial itself is to act. Indeed, its entire history — certainly from its appearance in the 1928 Manual until the present time — is marked by innumerable cases in which the courts-martial of all three services, and neither the law member nor more recently the law officer, have invoked its provisions. Whatever may be our views concerning the “ought” of the matter, we are not inclined to — we simply cannot with judicial propriety — uproot a principle so firmly imbedded in favor of a disputation more interesting than convincing.