Opinion of the Court
Robert E. Quinn, Chief Judge:
The accused was brought to trial before a general court-martial on two charges. Charge I alleged willful disobedience on October 6, 1959, of an order by Master Sergeant Thompson "to go to Class Room Three." Charge II alleged willful disobedience on the same day of an order by Captain D. W. Larson to "go to Class Room Three and go to work." The accused pleaded guilty to Charge I and not guilty to Charge II. In his instructions, the law officer advised the court-martial that it could consider the accused's plea of guilty of Charge I "on the question of the accused's intent" in regard to Charge II. The court convicted the accused of both chai-ges and adjudged a sentence which includes confinement at hard labor for twelve months and reduction to the grade of recruit. We granted review to consider whether the instruction constituted prejudicial error.
Service boards of review have consistently held that admissions implicit in a plea of guilty to one offense cannot be used as evidence to support the findings. of guilty of an essential element of a separate and different offense. United States v Day, 23 CMR 691; United States v Dorrell, 18 CMR 424; United States v Hughes, 7 CMR 229; United States v Steiner, 3 CMR (AF) 160. The rule was stated in the Dorrell case as follows:
"We are constrained to hold that an accused's plea of guilty to one offense is not available as evidence tending to prove an entirely different offense when neither offense is included in the other as a lesser offense thereof.
". . . To hold a plea of guilty to one offense as an admission supplying a fact common to that offense and also to a completely separate offense to which the accused has pleaded not guilty would in effect deprive the accused of a substantial right accorded him bylaw.
"We do not mean to infer that a plea of guilty to a lesser included offense cannot be used to establish facts and elements common to both the greater and lesser offense within the same specification (with the possible limitation on a plea of guilty to unauthorized absence within a charge of desertion as specifically provided for by par. 164a, MCM, 1951). See NCM 183, Wasco, 8 CMR 580. We are unable, however, to find any basis in law for using a guilty plea to one specification to supply proof of any of the essential elements of another specification."
The rule of exclusion stated in the cited cases is consistent with the principle that evidence of the commission of another offense of even the same general character is not normally admissible as evidence of guilt of another offense. See United States v Pavoni, 5 USCMA 591, 18 CMR 215; United States v Shipman, 9 USCMA 665, 26 CMR 445. Nor is proof of the conviction of an offense admissible as evidence to establish the existence of a fact required in the prosecution of another offense under the principle of res judicata. Although it has been said that the doctrine of res judicata applies in the criminal as well as in the civil law, no authority has been presented to us, and we know of none, which entitles the Government to use a conviction, or a judicial confession of one offense, as affirmative proof of the existence of an essential fact in the prosecution for another offense. See Sealfon v United States, 332 US 575, 92 L ed 180, 68 S Ct 237. The doctrine is a rule of estoppel which operates against the Government, not the accused. United States v Carlisi, 32 F Supp 479 (ED NY). However, it is apparent the error relates only to the element of willfulness.
The decision of the board of review as to Charge II and the sentence is reversed. The findings of guilty of that offense and the sentence are set aside. The record of trial is returned to The Judge Advocate General for resubmission to the board of review. In its discretion, the board of review may affirm findings of guilty of the lesser offense of failing to obey the order of Captain Larson and reassess the sentence on the basis of the modified findings of guilty of Charge II and the findings of guilty of Charge I or order a rehearing on Charge II and the sentence.
Judge FERGUSON concurs.
The instruction is as follows:
"As to the element of noncompliance with the order, whether it be a willful disobedience or whether it be a failure to obey, if found by the court, the court may consider not only the evidence presented by the prosecution but the sum total of proof before the court. Included in the proof before the court is the plea of guilty to the Specification of Charge I and Charge I. By comparison of the two specifications and from listening to the evidence, the court may infer that the noncompliance with the order to go to Class Room Three, as alleged in the Specification of Charge I, and the noncompliance to go to Class Room Three and go to work, as alleged in the Specification of Charge II, relate to the same prescribed duty, that the accused is alleged to have the duty to obey. The accused by pleading guilty to the Specification of Charge I has admitted each and every element of the offense of willful disobedience of the noncommissioned officer, Master Sergeant Thompson. One of the elements is his willful noncompliance with the order to go to Class Room Three. The court may, although not necessarily, infer the last element of the Specification of Charge II, that is, the accused at the time and place stated willfully disobeyed the command of his superior officer. I must caution the court, however, that the mere fact he has pleaded guilty to the Specification of Charge II is not an admission of the willfulness of the alleged failure to obey the second order given by Captain Larson. However, such plea may be considered on the question of the accused's intent, his knowledge, and his frame of mind when subsequently given the order by the Captain."