surgical, or dental care and treatment. In addition, he directed that the Attorney General of the United States prescribe regulations to carry out the purposes of Public Law 87-693.

DEPARTMENT OF JUSTICE ORDER NO. 289-62

The Attorney General, by Department of Justice Order No. 289-62, amended Chapter 1 of Title 28 of the Code of Federal Regulations, and added implementing regulations for the administration of Public Law 87-693 as follows:

ADMINISTRATIVE DETERMINATION AND ASSERTION OF CLAIMS

(a) The head of a department or agency of the United States responsible for the furnishing of hospital, medical, surgical, or dental care and treatment, or his designee, shall determine whether such care or treatment was or will be furnished for an injury or disease caused under circumstances entitling the United States to recover under Public Law 87-693. If it is so determined, he shall assert a claim against such third person for the reasonable value of such care and treatment. Either the Department of Justice or a department or agency furnishing the care and treatment may request any other department or agency to investigate, determine, or assert a claim under the regulations.

(b) Each department or agency is authorized to implement the regulations in this part and to give full force and effect thereto.

(c) Excludes care and treatment furnished by the Veterans' Administration to an eligible veteran for a service-connected disability.

OBLIGATIONS OF PERSONS RECEIVING CARE AND

TREATMENT

(a) In the discretion of the department or agency concerned, any person furnished care and treatment under circumstances here applicable, his guardian, personal representative, estate, dependents, or survivors may be required:

(1) To assign in writing to the United States his claim or cause of action against the third person to the extent of the reasonable value of the care and treatment;

(2) To furnish such information as may be requested concerning the circumstances giving rise to the injury or disease;

(3) To notify the department or agency concerned of a settlement with or an offer of a settlement from a third person;

(4) To co-operate in the prosecution of all claims and acts by the United States against such third persons.

(b) Records as to the medical history, diagnosis, findings, or treatment may be withheld pending compliance with the provisions of this Section.

SETTLEMENT AND WAIVER OF CLAIMS

(a) The head of the department or agency asserting such a claim may:

(1) Accept the full amount of the claim and execute a release;

(2) Compromise or settle and execute a release of any claim not in excess of $2,500 for care and treatment;

(3) Waive and in this connection release any claim in excess of $2,500 in whole or in part, either for the convenience of the Government or if undue hardship would result for the person who suffered the injury.

(b) Claims in excess of $2,500 may be compromised, settled, waived, and released only with the prior approval of the Department of Justice.

(c) The authority granted in this Section shall not be exercised in cases which:

(1) The claim for care and treatment has been referred to the Department of Justice, or

(2) A suit by the third party has been instituted against the United States or the individual who received or is receiving the care and treatment.

CHANGE TO JAG MANUAL (JAG INST. P 5800.7)

The Navy implementation of Public Law 87693 was in the form of an "advanced change" to the JAG Manual and supplemented by letters from the Judge Advocate General to the various District Commandants.

Added to the categories requiring a JAG Manual investigation was the situation in which hospital, medical, surgical or dental care and treatment was supplied by the Navy to any person injured or who suffers disease under the circumstances creating a tort liability upon a third person where the care and treatment exceeds one day in-patient care or four out-patient treatments.

The responsibility for reporting treatment and care furnished in circumstances which may require investigation as to third party liability was placed upon the Navy hospital and medical facility furnishing such care. The report is to be made in triplicate on Form NAVJAG 508. If the treatment was furnished to members of the Department of the Army or their dependents, the forms are to be sent to the Commanding General of the Army or comparable area command where the incidents occurred. In cases of care and treatment to members of the Department of the Air Force and their dependents, the forms are to be forwarded to the Base Staff Judge Advocate of the Air Force installation closest to where the care was provided. In all other cases the forms are to be forwarded to the Commandant of the Naval District where the incidents occurred, attention Disrict Legal Officer. In Guam, the forms are to be sent to Commander, Naval Forces, Marianas, attention Staff Legal Officer. If the incidents occurred outside the geographical limits of any Naval District or Guam, the forms are to be forwarded directly to the Judge Advocate General.

There is a further obligation placed upon the hospitals and medical facilities furnishing treatment to forward an additional statement of medical care on NAVJAG 508 upon completion of hospitalization, subsequent treatment, rehospitalization or other disposition of a patient in whose case a report had been previously submitted.

When necessary, the Commandant or District Legal Officer shall direct that an appropriate Naval activity conduct an investigation in the manner provided for in the JAG Manual, insuring, of course, that unnecessary investigation and duplication of investigative effort performed for other purposes is avoided.

Added to the already existing duties of an Investigating Officer, set forth in the JAG Man

ual, is a further duty to insure that there is included in the investigative file in duplicate an executed Power of Attorney and Assignment (Standard Form 96-A) from a person furnished medical care and treatment which may be the subject of a claim in favor of the United States. Further, the Investigating Officer is to advise such person of the Government's interest in any recovery he may receive and furnish him with a copy of Standard Form 96-A for his personal use.

The Commandant of the Naval District or in cases arising in Guam, Commander, Naval Forces, Marianas, or the District or Staff Legal Officer shall approve or disapprove claims within his adjudicating authority ($1,000). He may assert demands and in that connection, compromise or settle claims within his authority ($1,000). In exceptional or unusual cases, even though the claim may fall within the adjudicating authority of the Commandant or Commander, the entire record together with comments and recommendations may be referred to the Judge Advocate General for appropriate action. In cases where the claim for medical treatment and care exceed $1,000, the record together with the recommendations of the Commandant shall be forwarded to the Judge Advocate General for appropriate action.

EXECUTION OF RELEASES

Releases of all claims in favor of the United States may be executed by the Judge Advocate General. In addition, other offices have been designated to execute releases for certain purposes as indicated:

1) Deputy Judge Advocate General; the Assistant Judge Advocate General (International and Administrative Law); Director, Litigation and Claims Division; Assistant Director, Litigation and Claims Division, for all purposes.

2) Commandants of Naval Districts; Commander, Naval Forces, Marianas; or the District or Staff Legal Officers.

a) In all cases involving payment in full of claims within the limits of their adjudicating authority ($1,000),

b) Upon completion of repairs to Government property or the termination of medical care and payment in full therefor,

c) In any case in which the Commandant of a Naval District is authorized to compromise or settle a claim.

COMPROMISE AND SETTLEMENT The Judge Advocate General or his designee (Continued on page 258)

TO THE

O THE AVERAGE layman, the fact that an accused pickpocket has been convicted of similar offenses in the past would probably seem an extremely relevant factor in determining whether he has acted as charged in the present instance. However, in order to protect the innocent from being convicted on the basis of a prior criminal record and to relieve an accused of the burden of litigating all of his past offenses, thereby obscuring the issues of the present trial, the general rule of law is that evidence of prior offenses or misconduct not charged is inadmissible on the issue of guilt of the offense charged. In this regard, the Manual for Courts-Martial provides:

The general rule is that evidence that the accused has committed other offenses or acts of misconduct is not admissible as tending to prove his guilt, for ordinarily such evidence would be useful only for the purpose of raising an inference that the accused has a disposition to do acts of the kind committed or criminal acts in general and, if the disposition thus inferred was to be made the basis of an inference that he did the act charged, the rule forbidding the drawing of an inference of guilt from evidence of the bad moral character of the accused would apply.1

As a general rule evidence of prior offenses is inadmissible where it tends only to show a propensity on the part of the accused to commit crimes. However, where the evidence tends to prove some element of the present offense the danger that the court may infer guilt from the evidence of the accused's criminal disposition is outweighed by the probative value of the evidence. Stated another way, relevant and competent evidence is not rendered inadmissible simply because it incidentally tends to prove that the accused has committed other offenses.2

The rule governing the use of evidence of other offenses can be reduced to a question of

*Lieutenant Robert C. Watson, USNR, is presently assigned to the Office of the Judge Advocate General, West Coast. He holds the B.S. and LL.B. degrees from Marquette University and is a member of the Wisconsin bar and the bar of the U.S. Court of Military Appeals.

1. MCM, 1951, Para. 138g.

2. United States v. Haimson, 5 USCMA 208, 17 CMR 208 (1954)

relevancy. The purpose of this article will be to discuss the circumstances under which evidence of other offenses is relevant and the restrictions imposed upon its use in order to safeguard the rights of the accused.

GUILTY KNOWLEDGE

In certain offenses it must be shown that the accused at the time of the alleged offense possessed a certain knowledge. In a prosecution for possession of narcotics, for example, it would be a defense if the accused did not know the substance was a narcotic. Similarly, in a prosecution for uttering a forged or counterfeit instrument it would be a defense if the accused was unaware of the fraudulent nature of the instrument. Accordingly, proof of knowledge is often necessary in these cases.

It has been recognized that evidence of other similar acts provides a sound basis upon which to base an inference that the accused possessed the requisite knowledge in the present case. Therefore, evidence that the accused on other occasions possessed narcotics, received stolen property or uttered forged instruments is admissible on the issue of his knowledge of the nature of the object involved.

The theory behind allowing admissibility in these circumstances is that the prior act probably resulted in some sort of warning or knowledge and this warning or knowledge must probably have led to knowledge in the present case.3

In keeping with this theory, it is apparent that the prior act or offense must be similar in nature and not too remote in time in order to give rise to an inference of knowledge and thus meet the test of relevancy.

PROVING CRIMINAL INTENT

Criminal intent is an element of proof in every criminal prosecution. The general criminal intent is, in effect, nothing more than the wilful doing of a criminal act-the absence of accident or mistake. This general criminal intent is in most cases inferred from the doing of an act such as murder, rape, or assault.

3. Wigmore on Evidence, 3d Ed § 301.

On the other hand, certain crimes require proof of a specific criminal intent. In larceny a specific intent to permanently deprive must be established and in assault with intent to rape it must be established that the accused possessed a specific intent to commit rape.*

In cases requiring proof of only a general criminal intent the requisite intent may be implied from the act and usually no issue of intent arises. However, if the accused, expressly or impliedly, claims his act was the result of accident or mistake, the prosecution must prove the requisite intent. In this area, evidence of other misconduct is admissible to rebut the defense claim of accident or mistake. The theory of this rule is based on the simple fact that accident or mistake are abnormal causes of criminal acts and therefore the reoccurrence of a similar act tends to exclude the abnormal cause and point to the probability of the usual cause-criminal intent.

Thus, in a case where the accused claimed he was merely an innocent bystander drawn by curiosity to the scene of a robbery, evidence that earlier on the same evening he participated in an assault upon another person in the same area was held admissible to rebut his claim.5

Since this theory of evidencing criminal intent is based on the improbability that a like result will be repeated by chance or accident, the similarity of the prior misconduct, as is its closeness in point of time to the offense charged, is of the utmost importance to its probative value.

In the latter category of specific intent offenses evidence of other offenses has been admitted as relevant on the issue of the existence of the specific intent. Thus, in a desertion case, where the prosecution is required to prove that the accused intended to remain away permanently, the prosecution may show that the accused had absented himself on numerous past occasions or that he was under a suspended sentence for a past offense or was awaiting trial on another offense as bearing upon his intent to desert.6

Resort to prior acts is also possible in cases of assault with a specific intent or burglary with intent to commit a specific crime and like offenses requiring proof of specific intent. For example, a man may assault a woman for a number of reasons and may not by his actions betray his actual intent. In this case it may be shown that a short time before he had committed a

4. See note 31 infra.

5. United States v. Hoy, 12 USCMA 554, 31 CMR 140 (1961). 6. United States v. Reed, 13 CMR 925 (1953).

similar act wherein he clearly revealed an intent to rape.'

IDENTITY OF THE PERPETRATOR OF THE OFFENSE CHARGED

In some cases the evidence clearly establishes that an offense has been committed and the only issue is the identity of the perpetrator. In these cases evidence of other offenses of the accused may be admissible if it tends to identify him as the perpetrator of the offense.

The evidence of prior offenses may serve to link the accused with the charged offense in either of two ways.

First: If the crime is committed by some device or scheme evidence that the accused has previously used the same device or scheme in the commission of a similar offense tends to link him with the crime charged. Thus, where the accused is charged with embezzlement by means of false invoices, evidence that he had on previous occasions directed an employee to make up false invoices was properly received as tending to identify the accused as the perpetrator. Also where the accused is charged with forgery, evidence that he has previously used the same method of forgery tends to identify him as the forger and is properly admissible." Since the theory of relevancy here is to identify the accused with the crime by matching his previous modus operandi with the method used to commit the crime charged, the two offenses must be almost similar and not too remote in time in order to be admissible.10

Second: If the accused has committed some other offense which tends to link him with the offense charged evidence of the other offense is admissible on the issue of identity. Thus, where the murder weapon is found at the scene of the crime and it can be established that the accused had, prior to the murder, stolen the weapon, this evidence would be admissible as tending to identify the accused as the murderer." Under this latter theory the other offense need not be similar so long as it tends to link the accused to the offense charged, providing it is not too remote in point of time.12

TO SHOW A PLAN OR DESIGN

The presence of a plan or design to do a given act has probative value in establishing that the

7. United States v. Dove, 21 CMR 472 (1956).

8. United States v. Brossman, 16 CMR 721 (1954).

9. United States v. Dyche, 23 CMR 723 (1956).

10. Op cit supra note 3 at §§ 416, 218.

11. United States v. Eagles, 25 F2d 546 (DC Cir. 1928). 12. Supra note 9.

act was in fact done. While a plan is not always carried out, it is more or less likely to be carried out.13

Where the act itself (e.g. forgery, arson, etc.) is in issue the prosecution may resort to proof of the act by proving the accused had a plan or system of committing it. From proof of this plan the court can infer guilt of the offense charged.

The fact that the accused had a plan or design must be established circumstantially in most cases. In this regard, proof that the accused committed other offenses in furtherance of the plan tends to establish the existence of a plan from which his guilt of the act may be inferred.14

Examples of this theory may be found in the following illustrative cases:

(a) The accused is charged with burning B's house. Evidence that she had earlier the same night burned A's house and in the past had threatened to fix both A and B, may be admitted in support of the prosecution's theory that she had a plan to burn out A and B and thereby support the inference that she burned B's house.15

(b) The accused is charged with transporting females for purpose of prostitution. The government's theory is that the accused had a plan or design to live off the wages of prostitutes and transfer them to different states. Evidence that he previously lived off the prostitutes' earnings is admissible to establish the existence of this plan and support the inference that he transported the woman in the instant case for the purpose of prostitution.10

17

(c) The accused was charged with embezzlement of rationing coupons. The prosecution's theory is that he had a plan to embezzle and sell coupons. Evidence that he had on six previous occasions given coupons to A was held to be admissible to support the prosecution's theory of a plan to embezzle and sell to A.1 (d) The accused was charged with violation of an order prohibiting the resale of exchange cigarettes. The prosecution's theory was that the accused had a scheme or plan to purchase cigarettes at the exchange and resell them at a profit. In support of this theory the government was permitted to establish that in the past two months the accused had purchased coffee at the commissary and sold it on the black market.18

While the acts in the above examples tend to identify the accused as the perpetrator and show the requisite intent, this is incidental. The acts are offered and admitted to establish the existence of a plan to commit the charged offense.

13. Op cit supra note 3 at § 102.

14. Id at § 304.

15. Mitchell v. State, 37 So. 76 (1904).

16. United States v. Krulewitch 145 F2d 76 (2d Cir. 1944).

17. Henderson v. United States 143 F2d 681 (9th Cir. 1944).

18. United States v. Bryant, 12 USCMA 111, 30 CMR 111 (1961).

In this connection it should be noted that while evidence of other similar acts may be sufficient to show intent or identity, similarity is not sufficient to establish a plan or design. To establish a plan or design it must be shown that the other acts are naturally to be explained by the existence of a plan to commit the act charged.19

TO SHOW MOTIVE

Motive, the reason a man does an act, is not an element of a crime but it is an important factor from which other elements of the offense charged may be inferred. The fact that the proof of motive incidentally proves that the accused also committed other offenses does not render it inadmissible.

Examples of proof of motive through previous misconduct may be found in the following cases: In a prosecution for larceny it was permissible to show the accused had gambled heavily and that his bank account was overdrawn by several worthless checks. This evidence of the accused's financial status established a motive for larceny from which the requisite intent to permanently deprive could be inferred.20

In a prosecution for desertion it was held permissible to show that at the time the accused absented himself he was under a suspended sentence for a prior court-martial since this tended to establish a motive for desertion from which the requisite intent could be inferred.21

OTHER OFFENSES INTERMINGLED WITH THE OFFENSE CHARGED

In proving the offense charged it sometimes becomes necessary to describe an occurrence which involves a number of acts, some of which are also crimes.

In a prosecution to escape from confinement it would be unreasonable to exclude evidence that the accused sawed through his bars merely because this evidence also shows destruction of government property. Such evidence is admissible because it is inseparable from the act charged. For example, in a prosecution for rape the prosecution was permitted to show that the accused tried to gain entry to a house. Failing in this, he set the house afire and when the girl came out he committed rape. Admission of the evidence of arson was not prejudicial since it was closely intertwined with the offense charged.22

19. Op cit supra note 3 at § 304.

20. United States v. Sellers, 12 USCMA 262, 30 CMR 262 (1961). 21. United States v. Reed, supra note 5.

22. United States v. Hunter, 2 USCMA 37, 6 CMR 37 (1952).