Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A general court-martial convicted the accused of wrongful use of morphine in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728, and sentenced him to a dishonorable-discharge, total forfeitures, and confinement at hard labor for two years. The convening authority approved the findings, but modified the sentence by reducing the period of confinement and suspending execution of the discharge. A board of review affirmed. We granted review to consider the following issues:
1. Whether the evidence is sufficient to support the findings of guilty.
2. Whether the evidence regarding the specimens taken from the ac cused, and the tests and results thereof, was admissible.
While in confinement for an unauthorized absence, the accused was observed to be acting strangely. He was suspected of using narcotics. At the request of the Officer of the Day, he was taken to a local dispensary. The facilities for examination were inadequate, and the accused was asked if he objected to going to a station dispensary at Camp Drake. He agreed to go.
On arriving at the station dispensary, the accused was asked to provide a sample of his urine. He attempted to do so, but his efforts were unsuccessful. When all ordinary methods failed, a 1000 c.c. solution of glucose and water was injected intravenously. It does not appear, however, that this was done without the accused's consent. The injection also failed. Thereupon, cathe-terization was resorted to for the purpose of obtaining the required sample. This process was effective. The urine obtained was submitted to chemical analysis and revealed the presence of morphine.
Although the doctor who took the sample by catheterization said that he did not "hear the accused" state any objection, the medical attendant testified as follows:
"Q. How about any comments that he didn't want them to do that, did you hear something to that effect?
A. They gave him a chance. They said he wasn't able to do it. They said he'd have to. He said he didn't like the doctor to run a tube . . . [into him].
"Q. That was a form of objection.
A. Yes."
The accused's testimony regarding his objection is even more emphatic.
To force a person suspected of an offense to submit to an injection of over a quart of liquid into his veins in an effort to obtain evidence against him is highly questionable. However, in view of our disposition of this case, we need not decide that issue.
In United States v. Williamson, 4 USCMA 320, 15 CMR 320, a majority of this Court sustained the admission of evidence obtained by the use of a catheter when the accused was unconscious. The author of the present opinion protested against such an invasion of "the sanctity of the human body," and deprivation of an accused's constitutional rights. Although Judge Bros-man joined Judge Latimer in approving the use of a catheter under the circumstances of the Williamson case, he expressly noted that "If the case . . . involved real evidence obtained from an accused . . . over his protest" he would regard it as a violation of "fundamental standards of decency," and' a denial of military due process. The facts here clearly show that the instrument was employed not only without the accused's consent, but over his active protest. Consequently, the evidence is inadmissible.
The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. Since the record does not show any available substitute evidence, the charges are ordered dismissed.