UNITED STATES, Appellee v. JOHN R. BRADSHAW, Airman First Class, U. S. Air Force, Appellant, 15 C.M.A. 146

Opinion of the Court FERGUSON, Judge: Tried by a general court-martial convened by the Commander, 73d Air Division (ADC), at Tyndall Air Force Base, Florida, the accused was found guilty of violation of a lawful general regulation and bigamy, contrary to Uniform Code of Military Justice, Articles 92 and 134, 10 USC §§ 892, 934, respectively. He was sentenced to bad-conduct discharge, forfeiture of $46.00 per month for six months, confinement at hard labor for six months, and reduction. The convening authority approved the sentence.

The board of review set aside the findings of guilty relating to the violation of the lawful general regulation and reassessed the sentence, approving only so much thereof as provided for the adjudged punitive discharge, confinement at hard labor for five months, forfeiture of the stated amount per month for a like period, and reduction.

We granted accused’s petition for review on the specified issue that: “THE LAW OFFICER ERRED WHEN HE INSTRUCTED THE COURT ‘YOU ARE INSTRUCTED THAT THIS ANNULMENT SHOULD HAVE NO BEARING IN THIS CASE, AS FAR AS ARRIVING AT A DECISION ON THIS SPECIFICATION.’ ” The evidence establishes that the accused was married to Hughie Jane Bradshaw on April 23, 1960. While children resulted of this union, it was apparently stormy and occasionally interrupted by separations and filing of suit for divorce. Reconciliations were effected, however, and no divorce action was ever successfully maintained. Mrs.

Bradshaw nevertheless did not see her husband from July 1961 until the trial, although she corresponded with him. She did not write him after February 1963, and at no time did she inform him that she had obtained a divorce. On July 2, 1963, accused married Melinda Ellen Carroll. Appearing on his own behalf, accused testified that he married Miss Carroll in the belief that his wife had obtained a divorce from him. The basis for this conclusion on his part were letters which he had received from her in February and May 1963.

In the first, she allegedly informed him she had instituted the necessary proceedings and, in his reply, he unsuccessfully sought her attorney’s address in order that he might obtain the “papers” in the case. In May 1963, Mrs. Bradshaw again wrote him and advised him they were divorced. He wrote back and asked for a copy of the decree but heard nothing further from her.

When, after marrying again, he found he was not divorced, he promptly went to a civilian attorney, arranged to have his second marriage annulled, “and changed all necessary papers, because I realized I had made a mistake and didn’t know what to do. This was a big shock to me.” An authenticated copy of the decree of annulment of his marriage to Melinda Carroll was duly received in evidence on behalf of the defense. In support of accused’s testimony, Airman Philip W. Abrams declared he had seen and read two letters written to the accused, purportedly by the latter’s wife.

The first, which he saw in February 1963, indicated she was “taking actions for a divorce.” The second, which he read about May - 1, 1963, “said she had obtained a divorce and she wanted nothing more to do with Bradshaw.” He also saw a letter which accused wrote his wife in May, in which he “asked where she had obtained the divorce, when, and stated that he wanted a copy of the decree of divorce, and if there was anything he had to pay for the divorce — what the support would be.” Based upon the foregoing evidence, the law officer properly advised the members of the court that an honest and reasonable belief on the part of Airman Bradshaw that he was divorced when he married Miss Carroll would prohibit his conviction of bigamy, even though he was mistaken in that belief.

He further required the court to exclude the possibility of such honest and reasonable belief beyond a reasonable doubt in order to reach a finding of guilty as to this charge. At the outset of his instructions regarding this principle, however, the law officer also declared : “Now, there was evidence introduced that the second marriage, or the marriage to Melinda Ellen Carroll, was annulled; however, this evidence showed that the annulment took place after the alleged bigamous marriage.

You are instructed that this annulment should have no bearing in this case, as far as arriving at a decision on this specification.” Upon the conclusion of the law officer’s instructions, a colloquy occurred concerning whether prosecution and defense exhibits should be permitted to remain with the court during its deliberations. As it ended, the following exchange between the law officer and the president took place: “PRES: Then the court requests if Defense Exhibit B, the Decree of Annulment, should also be denied the court in it's deliberation? “LO: No sir, it can stay.

My instruction on that decree of annulment was that it was after the effective date of the alleged crime of bigamy— that’s the reason you should not consider it — by date alone; for that reason.” Thereafter, as noted above, the accused was found guilty of bigamously marrying Melinda Ellen Carroll, from which verdict this appeal has been duly prosecuted.

Appellate defense counsel, pointing to the fact that whether accused honestly and reasonably believed he was free to remarry had been placed in issue by the evidence, argue that his prompt action to obtain annulment of such marriage upon learning he had not been divorced by Mrs. Bradshaw tended to support his claim of acting innocently. They urge further that the law officer’s instructions regarding such annulment had the effect of eliminating it from the court’s deliberations and thus seriously undercut his defense of honest and reasonable mistake.

The Government contends, however, that the instruction had no such effect and was properly limited to eliminating from the court’s mind the possible consequences of a decree of annulment which was obtained long after the allegedly bigamous marriage had been contracted. It construes the advice to have nothing to do with the court’s consideration of accused’s testimony that, upon discovering the impediment to his later union, he took prompt steps to secure its judicial dissolution. At the outset, we note our disagreement with the Government’s construction of the law officer’s in-struetions.

Undoubtedly, annulment of a bigamous marriage is immaterial to the general question of guilt of bigamy. Burks v State, 50 Tex Crim 47, 94 SW 1040 (1906) ; People v Spitzer, 57 Cal App 593, 208 Pac 181 (1922). Perhaps that is the concept which the law officer intended to convey to the court, but the scope of his direction was much broader.

He instructed the members to disregard all evidence that “the marriage to Melinda Ellen Carroll, was annulled” and informed them that, as “the annulment took place after the alleged bigamous marriage . . . this annulment should have no bearing in this case, as far as arriving at a decision on this specification.” It cannot be gainsaid that the effect of such advice, fairly construed, was to prohibit the court-martial from giving any consideration whatsoever to accused’s testimony regarding his behavior upon learning of the lack of a divorce from Hughie Jane Bradshaw as well as the fact that his invalid marriage was thereafter dissolved.

Cf. United States v Smith, 13 USCMA 471, 33 CMR 3; United States v Acfalle, 12 USCMA 465, 31 CMR 51. The issue for decision, therefore, is narrowed to an inquiry whether it was proper so to preclude the fact finders from considering accused’s reaction when he learned that Hughie Jane had not in fact divorced him, as he purported to believe she had done. We think it, too, should have been weighed in the balance.

While some controversy seems to have raged in the past over whether actions and declarations on the part of an accused subsequent to the alleged commission of a crime are admissible to demonstrate a consciousness of innocence on his part, it has been noted that such proof “seems not to have been doubted by Courts as having in itself evidential value.” Wigmore, Evidence, 3d ed, § 174.

Thus, in Herman v United States, 48 F2d 479 (CA 5th Cir) (1931), defendant, charged with violations of the National Prohibition Act, in support of his claim that liquor found on his premises was there without his consent, was permitted to show he had reported its presence to the sheriff’s wife “as indicating a consciousness of innocence.” Herman v United States, supra, at page 480. Cf. American Tobacco Co. v United States, 147 F2d 93, 120 (CA 6th Cir) (1944).

And in United States v Bucur, 194 F2d 297 (CA 7th Cir) (1952), the Circuit Court of Appeals held it reversible error to refuse to allow a witness to testify that defendant, charged with conspiracy, had made statements to him inconsistent with his continued participation in the criminal agreement. It declared, at page 301: “This testimony may be labeled 'self-serving’ in the sense that it relates to the conduct and declarations of the defendant. As observed in United States v Matot, 2 Cir, 146 F2d 197, generally all evidence submitted for a defendant is self-serving.

But the government properly asserts that, in order to escape liability, an accused, once shown to have been a member of a conspiracy, must assume the burden of proving a good faith severance from the conspiracy when he ascertains its illegal character. By his plea, defendant denied knowledge of the fact that the vehicles were stolen. Thereafter he was confronted with substantial affirmative proof to the contrary. In this situation, he had a right to attempt to meet and overcome this proof against him by evidence tending to establish his good faith.

To be compelled to meet this challenge without the benefit of testimony concerning his conduct and statements, following what he contends was his initial ascertainment of the illegal scheme, seems to us manifestly wrong.

If testimony of this nature is excluded by the legalistic tag of ‘self-serving,’ an anomalous situation is presented where the accused is faced with the need to bolster his claim of innocence but is deprived of the most logical means of doing so.” As in United States v Bucur, supra, the effect of the law officer’s instruction here was to deprive the accused of the effect of his testimony concerning the initiation of the annulment proceedings on the behalf of his putative wife upon learning that he had not, in fact, been divorced by his legal spouse.

The value of evidence regarding efforts to obtain an annulment as indicative of the existence of an honest mistake on the part of an alleged bigamist has been squarely and succinctly described in the following terms: “ . . . The letter [of the defendant] showed that as soon as he learned that he had not obtained a divorce in Oklahoma, he sought to have the marriage with Roberta Belle Young annulled. It tended to show that he entered into the second marriage with the honest and sincere belief that he had a legal right to do so.

That upon receipt of information to the contrary, he immediately did what he could to correct the error.

In short, the letter brought out facts which, if the jury had believed them, might have been a potent factor in exonerating him from the charge for which he was on trial.” [McDonald v State, 138 Tex Crim 610, 136 SW2d 816 (1940).] Rather than advising the court members that the annulment proceedings were wholly irrelevant to the question of accused’s guilt or innocence of bigamy, the law officer might properly have informed it that Bradshaw’s connection therewith should be considered as a factor in determining whether he had entered into the matrimonial state with Miss Carroll, honestly and reasonably believing he had been divorced by Hughie Jane Bradshaw.

Cast into the scales and considered with the other testimony of accused and Airman Abrams regarding the letters allegedly received from Mrs. Bradshaw, the fact finders might have found a reasonable doubt to exist concerning his guilt, such action on his part being “a potent factor in exonerating him from the charge for which he was on trial.” McDonald v State, supra. The contrary advice, excluding all consideration of this facet of the proof by the court, creates a fair risk that it was misled in its deliberations and was, therefore, prejudicially erroneous. United States v Bucur, supra.

Reversal is accordingly necessitated. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Air Force. A rehearing may be ordered. Judge Kilday concurs.