Opinion of the Court
HomeR FERGUSON, Judge:
We granted review in this case to consider the correctness of the law officer's instructions. The accused was convicted of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, for an absence of some four and one-half years' duration, terminated by apprehension. He had entered a plea of guilty to the lesser offense of absence without leave, in violation of Article 86 of the Code, supra, 10 USC § 886, but not'guilty to the greater offense of desertion. The only issue before the court-martial concerned the question of the accused's intent.
Testifying in his own behalf, he related in detail the reasons underlying his unauthorized absence during the period alleged. After having spent several weeks at home on leave he found that he lacked sufficient funds to return to his organization. He obtained civilian employment in order to earn funds to return. It became necessary, however, to give the money earned to his father who was unemployed at the time. While at home he met a young lady whom he married after a brief engagement. He informed her of his status as an absentee from the Army and of his intent to return to the service. She became pregnant shortly after their marriage and because of her weak physical condition, he decided to remain at home in order to take care of her. Her pregnancy ended in a miscarriage. He made preparations to return to the service only to be told by his wife that she was again pregnant. This second pregnancy also unfortunately ended in a miscarriage. After this the accused "wanted to come back real bad" but lacked the means of adequately earing for his wife. She subsequently became pregnant a third time and a child was born shortly before he was apprehended. He further testified that he again decided to return but delayed his departure because the child was too young and his wife too ill at the time. He then decided to wait until a few bills were paid before he returned. During his absence he had lived in the same city where he had resided prior to his entry into the service. He steadfastly maintained that he intended to return throughout his absence. The accused's wife corroborated his testimony that during their marriage he had frequently expressed an intent to return to the service and that on several occasions he had started to turn himself in only to be dissuaded by her pleas begging him to remain.
After opposing counsel had presented closing argument, the law officer outlined to the court the elements .of the offense. He then instructed as follows:
"You are advised that the statement 'and a purpose to return provided a particular but uncertain event happens in the future may be considered an intent to remain a,way permanently' contained in paragraph' 164a (1), to be found at page 311 of the Manual, is an incorrect statement of the law. With regard to a contingent intent to return, you are advised that a purpose to return provided a particular but uncertain event happens in the future may not, standing alone, be considered proof of an intent to remain away permanently. Such evidence should be considered by you along with other relevant evidence, if any, of intent in the record in determining whether or not an intent to remain away permanently exists."
Several instructional errors are assigned as grounds for reversal. The first contention made is that the law officer erred in advising the court that concerning the issue of intent, it could consider — -"along with other relevant evidence" — that a purpose to return provided a particular but uncertain event happens in the future is proof of an intent to remain away permanently. In discussing the offense of desertion, paragraph 164a (1), Manual for Courts-Martial, United States, 1951, contains the statement that:
". . . a purpose to return, provided a particular but uncertain event happens in the future, may be considered an intent to remain away permanently."
We have had occasion in the past to fully consider the correctness of this Manual provision. In United States v Rushlow, 2 USCMA 641, 10 CMR 139, the accused — as in the instant case— was found guilty of desertion termi- nated by apprehension. At trial he had testified that upon arriving home he found his mother in need of an operation and because of his parents' financial difficulties, he decided to obtain employment in order to help defray' expenses. He further contended that he did not intend to desert the service but instead intended to return when his brother was discharged from the service. The law officer in instructing the court, read the Manual passage set forth above. We held the instruction erroneous and, in the course of our opinion, said:
. . The instruction thus told the court members that if they believed the accused had a purpose to return, but that this purpose was conditioned upon his brother's relief from active duty, and contributions to the support of the family, it might find the accused intended to remain away permanently. The instruction did not require that that factor be considered with other relevant evidence of intent in the record as it stated that his intent not to return could be gathered from that fact alone. To inform a court it could so find seems to be converting a probable intent to return to the service into an intent not to do so. The practical effect of such an instruction was to render the accused's explanation no more than a judicial confession and its legal effect was to announce a new rule of law, that is, specific intent to remain away may be established by proving an intent to return if the latter is based on a contingency. Accused's only defense was predicated upon a qualified intent to return to the service but the members of the court-martial were instructed that this mental condition could be considered as equivalent to one which purposed an intent to remain away forever. While an intent to return based on a contingency might be rejected as a defense to a crime otherwise established, it is difficult to support a statement to the effect that it establishes an essential element to remain away permanently when it has a tendency to prove the opposite." [Emphasis supplied.]
The law officer in the instant case was obviously familiar with our Rush-low holding for he had earlier informed the court that the passage "contained in paragraph 164a (1), to be found at page 311 of the Manual, is an incorrect statement of the law." He was in error, however, when he advised the court that although it could not consider a contingent intent to return "standing alone" as proof of an intent to remain away permanently, it could consider such evidence "along with other relevant evidence." Evidence of an intent to return provided a particular but uncertain event happens in the future is not in any manner indicative of an intent to remain away permanently, but, on the contrary, is evidence of a probable intent to return. It is within the exclusive province of the court-martial to believe or reject such evidence in reaching its findings unfettered by any instruction which seeks to convert a probable intent to return into an intent to desert. The entire thrust of the accused's defense other than his own statements that he never intended to desert the service, was based on a contingent intent to return when his wife was able to care for herself and their baby. In such a setting, the erroneous instruction was prejudicial to the accused.
Although our holding as to the first issue is sufficient by and in itself to warrant reversal, we deem it advisable to consider the additional instructional errors assigned since similar issues have been raised in several cases presently pending before us. Immediately following the instruction previously discussed, the law officer further advised the court-martial that:
"As to length of absence without authority, it is within the province of the court to determine whether or not the length of time involved, if in the absence of satisfactory explanation, is of such duration from which it can infer an intent to remain away permanently. You must determine whether or not the absence was much prolonged, and if so, whether or not there was a satisfactory explanation for it."
We are met at the outset by the Government's contention that although our recent decision in United States v Cothern, 8 USCMA 158, 23 CMR 382, "lends support" to appellant's claim of error, we should nevertheless reconsider our holding in that case and limit its application "to those situations in which a court-martial could not reasonably find that the period of absence was of such duration as to justify an inference that accused possessed the requisite intent." This we are not inclined to do. Although the instruction considered in Cothern, supra, was not precisely the same as the one found here, it nevertheless strikes too close to the evil there denounced to permit of fine distinctions and differentiations. In Cothern, supra, the law officer had instructed the court that if the condition of absence without proper authority was much prolonged, it would be justified "in inferring from that fact alone an intent to remain absent permanently." In holding such instruction erroneous, we said:
"The first paragraph of the instructions set forth above states that if the absence alleged is characterized as much prolonged, and is not explained to the court-martial's satisfaction, they might infer from that 'fact' alone that the accused intended to desert. Thus, on the basis of this first paragraph, the court-martial could believe that if they found that the absence was much prolonged they would not have to consider the intent of the accused. This, of course, is contrary to the doctrine set forth in the case of Morissette v United States, 342 US 246, 72 S Ct 240, 96 L ed 288, and is error. See also United States v Miller, 8 USCMA 33, 23 CMR 257. The court-martial must consider the specific intent of the accused and not some substituted 'established fact' of a justifiable inference. Seventeen days is merely one fact from which, when considered, with all the other evidence in the case, an intent to desert may be inferred."
Although the law officer in the case at bar did not inform the court that if it found the condition of absence much prolonged, it would be justified in inferring "from that 'fact' alone" an intent to desert, he nevertheless failed to advise adequately that the period of absence — regardless of its duration — is but a single fact from which "when considered with all the other evidence -in the case, an intent to desert may be inferred." In Cothern, .supra, the error was one of commission; here, it is one of omission.
One further matter merits attention: Twice the law officer in the brief instruction here under eon-sideration informed the court that an intent to remain away permanently might be inferred from the length of absence "in the absence of satisfactory explanation." We believe this had the effect of compounding the other errors found in' the instructions. As the length of absence was undisputed, the accused was thus required to convince the court of his innocence by a "satisfactory" explanation of his absence. Such an instruction has the effect of shifting the burden of proof to an accused in order to establish his innocence rather than placing the burden on the Government throughout the trial to prove the accused's guilt beyond a reasonable doubt. Article 51(c) of the Uniform Code of Military Justice.
A case closely in point is Duncan v United States, 23 F2d 3 (CA7th Cir) (1927), where an accused was charged inter alia with forging and passing a Government check. He had defended on the ground that he had received the check in part payment of the purchase price of certain real estate that he had sold and that upon receiving the check he had presented it to the bank for payment, believing the signatures were the genuine signatures of the payee. The trial judge, in his charge to the .jury, instructed that if it believed that the check had been stolen and that it was found in the possession of the accused, it became the latter's duty "to explain to you, to your satisfaction, how he obtained possession of- that check." The Court of Appeals for the Seventh Circuit, in reversing the accused's conviction because of the erroneous instruction said in pertinent part:
. . In a criminal ease, the burden of proof never shifts. The government is required to establish its case beyond a reasonable doubt. When the evidence is sufficient to convince the jury beyond a reasonable doubt, that property recently stolen is found in the possession of the accused, such accused person naturally carries the duty of explaining its possession. This, however, does not mean that in a criminal ease the burden of proof shifts.
"In explaining the possession of such recently stolen property, the accused is only required to offer such a rational explanation as will raise in the minds of the jury a reasonable doubt as to his innocence. To require him to explain to the satisfaction of the jury is to impose upon him a burden greater than the law requires. At least, it seems to us that such language, without further explanation, was sufficient to leave with the jury the impression that the burden had shifted to the accused to satisfy the jury of his innocence. For innocence or guilt, upon the disclosed facts, depended upon the explanation the accused offered respecting this possession of the check."
In United States v Crawford, 6 USCMA 517, 20 CMR 233, the accused was convicted of wrongful use of narcotics. He had testified at trial that a friend had given him a bottle of medicine represented to be paregoric to relieve discomfort. Evidence was introduced to show that paregoric contains morphine and that if ingested in a sufficient amount, it will give a positive morphine reaction in a test of a urine sample. At trial counsel's request, the law officer instructed the court that although the use of narcotics when consumed by accident or mistake is innocent, the Government is not required to negative the existence of these exceptions and that such evidence must come from evidence produced by the accused. The Court held that such instruction was "undoubtedly" wrong because:
"Standing alone, the controverted instruction may possibly be interpreted to shift the burden to the accused to satisfy the court that he innocently ingested the drug. So, interpreted the instruction would be prejudicial. An accused is not required to prove his innocence. At all times, the ultimate burden of proving wrongdoing is on the Government; and it must establish guilt beyond a reasonable doubt. A permissible presumption or inference may aid the Government in its proof, but it does not in any way alter the prosecution's obligation to establish guilt; nor does it affect the right of the accused to do and say nothing."
The burden is always on the prosecution to establish the guilt of an accused beyond a reasonable doubt. Price v United States, 200 F2d 652 (CA5th Cir) (1953). To misplace that burden, as was done in the instant case by instructing the court that the accused must satisfactorily explain his absence, requires an accused to acquit himself rather than requiring the Government to convict him. Lambert v United States, 101 F2d 960 (CA5th Cir) (1939). We believe a sound rule is the one stated in Dillon v United States, 218 F2d 97 (CA8th Cir) (1955), where the court said:
"Great care should be observed in the exercise of judicial discretion to the end that no shifting of the burden placed upon the prosecution to prove guilt result in requiring to any degree or extent that a defendant prove his innocence. The burden of proof must remain on the prosecution to establish guilt. The administration of justice is not a game of chess or of hide-and-seek. It is a search for truth and the application of the law to the true facts in order that substantial justice be done under the law."
In view of the several errors contained in the law officer's instructions, the accused's conviction of desertion cannot stand. The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board, in its discretion, may approve the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the principal charge.
Chief Judge Quinn concurs.