UNITED STATES, Appellee v. THOMAS A. BRIDGES, Airman Third Class, U. S. Air Force, Appellant, 12 C.M.A. 96

Opinion of the Court Homer Ferguson, Judge: Tried by special court-martial, the accused was found guilty of operating a motor vehicle without the required license, in violation of Uniform Code of Military Justice,

Article 92, 10 USC § 892, and wrongful appropriation, in violation of Code, supra,

Article 121, 10 USC § 921. He was sentenced to bad-conduct discharge, forfeiture of $70.00 per month for five months, confinement at hard labor for five months, and reduction to the lowest enlisted grade. Intermediate appellate authorities affirmed, and we granted accused’s petition for review on the issues whether the president of the court-martial was required to grant a requested defense instruction and whether the court members were authorized to overrule the president’s ruling that he would so advise the court.

On November 28, 1959, the accused and an Airman Donovan rode to a hotel in a town near their base in Donovan’s car. At Donovan’s request, accused drove. After their arrival, accused asked Donovan for a ride to another village in order that he might see a girl. Donovan refused, and informed accused that he intended to leave his car parked at the hotel as he was not sober enough to operate it safely. While Donovan was absent from the room for a few minutes, accused took the car keys which had been left on the table and drove off in the automobile.

Prior to the evening in question, accused had not been permitted to drive Donovan’s car, although he was a “good friend,” and Donovan “probably would have let him have the car” if he had asked for its loan and if he had been able to produce his operator’s permit. Approximately an hour after Donovan discovered that his car was missing, it was found wrecked near the west gate of the Air Force Base on which both men were stationed. Accused, injured, was lying in the front seat.

After his return from the hospital, accused made a voluntary oral statement to a criminal investigator in which the following was set forth: “. . . Airman Donovan got up to go to the latrine and left the keys to his car lying on the table, Airman Bridges stated to me that at this time he felt that Airman Donovan was becoming intoxicated, that he had seen him before like this, so he thought that he would take the car and bring it back to the base for him, that he did not think Airman Donovan would mind.

He stated that he left Stambach and decided to go through the west gate rather than the main gate because there would not be so many people around. He said that after he passed the base he started down a hill and his accelerator stuck, he realized what was happening and he reached down with his hand to try to release it, that the car swerved and went off the road and that was all he remembered.” The location of the car at the time it was discovered was approximately three to four hundred feet beyond the entrance to the Base’s west gate and on the road toward the village in which accused’s girl friend lived.

Skid marks, however, commenced ninety feet prior to the turn for the gate. Following final arguments in the case, the defense counsel proffered to the president of the court-martial a requested instruction which set forth the following: “Not every wrongful taking constitutes a violation of UCMJ,

Article 121. The intent to deprive the owner of his property, either permanently or temporarily, must include a mens rea. Therefore, the mere borrowing of an

article of property without the prior consent of the owner does not make out either of the offenses defined in

Article 121. Something more is required, and that something is criminal intention.” Overruling the trial counsel’s objection that the requirement of criminal intent was adequately developed by the instruction that accused must be found to have taken Donovan’s car “wrongfully,” the president granted the defense request. Upon objection by a member of the court, a closed conference occurred without the presence of counsel and the accused. When the court reopened, the president ruled that the instruction would not be given.

He did not, however, announce whether his former decision had been overruled by a majority vote of the court members during the closed session. Thereafter, the president advised the members of the court-martial of the elements of the offenses charged and delivered the mandatory advice concerning the presumption of innocence, burden of proof, and reasonable doubt. In accordance with the ruling previously made, he did not enlarge upon the question of criminal intent.

In United States v Hayes, 8 USCMA 627, 25 CMR 131, a majority of this Court pointed out the validity of the concept urged upon the president by the defense counsel. There, we stated, at page 629: “Not every wrongful taking constitutes a violation of

Article 121. See United States v Norris, 2 USCMA 236, 8 CMR 36. The intent to deprive the owner of his property, either permanently or temporarily, must include a mens rea. Therefore, the mere ‘borrowing’ of an

article of property without the prior consent of the owner does not make out either of the offenses defined in

Article 121. Something more is required, and that something is criminal intention. Thus, if one visits the office of a friend, and, finding him absent, takes a book which he has come to borrow, leaves a note to that effect, and returns the book the next day, there is no intent to steal or misappropriate the book and, necessarily, no violation of

Article 121.” In the Hayes case, we were faced with evidence which tended to establish that the accused, a finance clerk, arranged for an unauthorized advance pay for another soldier, in violation of regulations, which, however, was to be repaid by monthly deductions from the salary due him. We held, inter alia, that “According to the evidence, under proper instructions the court-martial here could have acquitted the accused because of the absence of any criminal intent.” United States v Hayes, at page 630. We are faced with a legally identical situation in this record.

Here, the victim testified that he had refused :to drive the accused to his sweetheart’s home in a nearby village. However, he also indicated that accused did not ask him for the loan of his car; that they were friends; and that, upon determining that accused had a permit, a matter into which he did not inquire, he “probably would have let him have the car.” He also admitted informing the accused that he, Donovan, believed himself too intoxicated to drive and intended to leave his car at the hotel.

Viewing accused’s pretrial statement in light of Donovan’s testimony, we cannot say his declaration that he took the car solely to prevent Donovan from driving it while drunk and in order safely to return it to the Air Base is incredible. The physical facts in the record concerning his accident demonstrate that skid marks were found to commence prior to the intersection in the highway leading to the west gate and the fact that he did not have a vehicle operator’s permit may well have led accused to the conclusion that it would be desirable to avoid the crowded main gate.

While there is certainly room for another view, we believe the proof here is such that the court-martial could reasonably have found that accused lacked the criminal frame of mind necessary for a conviction of wrongful appropriation. United States v Hayes, supra; United States v McArdle, 27 CMR 1006. Accordingly, upon his request, accused was entitled to an instruction which clarified for the court-martial the question of criminal intent and required it to find that he possessed the necessary mens rea.

While the proposed advice may not have been adequately phrased, it was at least sufficient to put the president on notice that clarification was necessary. United States v Walker, 7 USCMA 669, 23 CMR 133. The subsequent refusal to enlarge upon the matter of intent was, therefore, prejudicial. Left for consideration is the second issue.

While the record reflects only that the president changed his ruling on the request for additional instruction after participation in a closed session with the other members of the court-martial, the fact that such session occurred as the result of a member’s objection clearly implies that the reversal of his former position was due to being overruled by a majority vote in closed session. Thus, the question before us is simply whether the members of a special court-martial may properly so overrule the president’s rulings concerning instructions. We are certain that their authority does not extend so far.

Code, supra,

Article 51, 10 USC § 861, provides pertinently; “(

b) The law officer of a general court-martial and the president of a special court-martial shall rule upon interlocutory questions, other than challenge, arising during the proceedings. Any such ruling made by the law officer of a general court-martial upon any interlocutory question other than a motion for a finding of not guilty, or the question of accused’s sanity, is final and constitutes the ruling of the court. . . . “(

c) Before a vote is taken on the findings, the law officer of a general court-martial and the president of a special court-martial shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense and charge the court . . . [concerning the presumption of innocence and reasonable doubt].” The Government argues that subsections (

b) and (

c) of

Article 51, quoted supra, must be read together and that, so construed, require the president’s selection of instructions to be made subject to the objection of any member of the court, thus reducing him to little more than a record spokesman in this case. They arrive at this conclusion by characterizing the granting of instructions as an interlocutory question and contend that all such matters are decided subject to objection. See Manual for Courts-Martial, United States, 1951, paragraphs 40, 57, and United States v Pulliam, 3 USCMA 95, 11 CMR 95. On the other hand, appellate defense counsel correctly point out that nothing in the legislative background, of Code, supra,

Article 51, indicates that Congress intended for the instructional question to be treated as any other interlocutory matter. Indeed, the history of subsection (

c) of the

Article and the Manual references to it establish the contrary. Thus, in Senate Report No. 486, 81st Congress, 1st Session, at page 23, it was stated that the

Article placed upon the president of a special court-martial the affirmative duty of instructing the court as to the elements of the offense, the presumption of innocence, burden of proof, and reasonable doubt. It was further remarked that: “. . . This subdivision [c] sets out the minimum requirements as to the scope of the instructions. It will not prevent him from charging on additional rules of law which are germane to the case.” [Senate Report No. 486, supra, at page 23.] The same comments are made in the Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at pages 74-75.

And in our examination of the provisions of the Manual, supra, we note that, in every instance, its drafters separated the duty to instruct from the president’s other responsibilities concerning interlocutory matters. See, for example, Manual, supra, paragraphs 406(2), 57c, and 73. Nowhere is there found any indication that the question of granting instructions was to be treated as an ordinary ruling of the court, and, indeed, it is difficult to see how the president could execute his duty in this respect without plenary authority to control the content of his advice.

Moreover, in United States v Pulliam, supra, we expressly saved the question whether the president’s duty in the instructional area should not be treated differently from other interlocutory matters. Thus, assuming the accuracy of the Government’s contention that Code, supra,

Article 51 (b), provides authority for the court members to overrule the president’s rulings in general, it is equally clear that his action with respect to instructions is final and conclusive. Compare United States v Pulliam, supra, with United States v Rinehart, 8 USCMA 402, 24 CMR 212. Otherwise, we would have to attribute to Congress the strange position of, on the one hand, giving the president the duty of instructing but, on the other, taking from him the responsibility of selecting the advice to be delivered.

We do not think the legislature intended such an absurd result, and we are required to hold that the ruling of a president of a special court-martial with respect to the granting of instructions is final and not subject to the objection of any member of the court. While he is not wholly a judge, we are certain that Congress did not intend him to be only a figurehead who parrots into the record the conclusions of a majority of the court concerning the law. The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Air Force.

The board of review may order a rehearing on the charge of wrongful appropriation and the sentence or it may reassess the penalty on the remaining findings of guilty. Chief Judge Quinn concurs.