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result in the discharge of the remaining individual as well.
Conspiracy is an offense with which many persons are unfamiliar. For this reason the basic legal elements of the crime itself tend to be somewhat unclear to many, as do the evidentiary problems involving the acts and statements of coconspirators. From an examination of the military and federal cases in this area, which are in complete accord, the basic factors become quite clear. When a group of military personnel have joined together to commit an offense under the Code, in most instances they will commit the offense of conspiracy before the actual commission of their intended substantive crime.
The offense of conspiracy has its proper place in the inventory of legal weapons against crime. While it should not be ignored, neither should it be used as a catchall merely because it is felt that proof of another offense would be difficult. Nor should it be used in an effort to increase the number of charges against an accused. It is hoped that this discussion will help to dispel some of the clouds which have tended to surround the offense and that it will aid in the proper utilization of Article 81 of the Uniform Code of Military Justice. SELF-DEFENSE
(Continued from page 308) "reasonable man" standard enunciated by USCMA by inclusion of references to the concepts of "aggressor" and "vindictive" conduct would give the court a full framework within which to judge the accused's conduct.
instruction pamphlets must be meticulously edited and adjusted.
Whether or not a defense has been reasonably raised by the evidence can often be a vexing problem, indeed. As a broad general rule, it might be said that when there has been introduced some evidence, which, if believed, would amount to a defense, then it has been raised and must be the subject of instruction to the courtmartial. Further, a good working rule is: "When in doubt, instruct." There are cases where USCMA has found self-defense instructions deficient, but, since the defense was not reasonably raised, the accused was the recipient of a windfall.41 In another case involving selfdefense, United States v. Duckworth,42 there is cautionary language to the effect that instructing, correctly or incorrectly, on self-defense when it is not raised by the evidence could under some circumstances lead to prejudice to the accused. However, despite the Duckworth dicta, in cases where a close question is involved, it is the better practice to instruct. In general courts-martial, this is the responsibility of the law officer, an experienced military lawyer. In special courts-martial, the president has the absolute and independent responsibility of deciding which issues have been raised and formulating appropriate instructions thereon. Both trial and defense counsel, who have an opportunity in advance of trial to anticipate the issues, should consider the preparation of proposed instructions an integral part of their preparation for trial. These proposals may be considered by the president, who, of course, must bear in mind that they have been submitted by partisan advocates. 41. U.S. v. Green, 13 USCMA 545, 33 CMR 77 (1963); U.S. v. Camp
bell, 13 USCMA 531, 33 CMR 63 (1963); U.S. V. Regalado, 13
USCMA 480, 33 CMR 12 (1963). 42. 13 USCMA 515, 33 CMR 47 (1963). See also U.S. v. Tucker, 14
USCMA 376, 34 CMR 156 (1964).
JAG JOURNAL REDUCTION
In the line of cases leading to the rejection of the doctrine of retreat to the wall and the expression like degree of force, USCMA has been continually critical of the instructions furnished the court. In Acosta-Vargas,38 the Court criticized the practice of lifting portions of substantive law from the Manual and using them as instructions on modes of proof.39 In Smith,40 the Court called for a "meaningful submission" of the issues to the court-martial, and suggested that careful "tailoring" of pre-prepared general instructions was an appropriate means of accomplishing this end. In addition to the elements of the offenses, all issues, defenses, and lesser offenses raised reasonably by the evidence must be instructed upon in the particular fashion in which they arise in each case. “Shotgun" instructions, drawn either from the Manual or
The JAG JOURNAL, along with other Navy Department publications, was recently screened by the Navy Publications and Printing Policy Committee with a view towards achieving additional economy in the publications field. As a result of this screening the Committee made the decision to reduce the number of issues of the JAG JOURNAL. Consequently, beginning after this issue the JAG JOURNAL will be published only five times per year. The Policy Committee did authorize a maximum of 32 pages per issue. Accordingly, an effort will be made to increase the number of pages per issue so that the total number of pages per year will not be substantially less than it has been previously.
38. Note 35, supra. 39. Id. at 392, 33 CMR at 392. 40. Note 24, supra.
argument have been completely omitted. However, the improprieties discussed are those most commonly occurring in special courts with lay counsel. If the discussed errors can be prevented, instances of improper argument will be reduced to a minimum.
(Continued from page 303) under any circumstances in courts-martial proceedings.
It is, of course, preferable to completely avoid improper arguments. However, if improper argument is presented at trial it should immediately be brought to the attention of the president. In many instances an instruction to disregard is sufficient to cure the defect. 58 However, if the improper matter is particularly inflammatory or otherwise prejudicial to the accused, a motion to disregard may not purge the error, in which instance the president has no alternative but to declare a mistrial.
This discussion on improper argument is far from all-inclusive. Many instances of improper
CONCLUSION There are, of course, innumerable possibilities for error in any court-martial proceeding. However, the three categories of error which have been discussed in this article have been singled out, not only because of their frequent appearance, but also primarily because of their particularly damaging effect. A thorough familiarity with these areas will substantially reduce the large number of rehearings which obstruct the flow of justice.
56. United States v. Seay, 13 USCMA 540, 33 CMR 72 (1963).
MEDAL AWARDED Captain Jerry R. Siefert, U.S. Navy, was presented the Navy and Marine Corps Medal by Rear Admiral Wilfred A. Hearn, U.S. Navy, the Judge Advocate General of the Navy, during ceremonies in the Pentagon, Washington, D.C., on 4 June 1964.
The Navy and Marine Corps Medal is awarded to Naval personnel who distinguish themselves by heroism not involving actual combat with the enemy. For acts of lifesaving it is awarded for extreme and heroic daring at the risk of one's own life. Captain Siefert received the medal for heroism in saving a woman bather from drowning in treacherous waters at Barefoot Mailman Beach, Pompano Beach, Fla., on Christmas Day, 1962. Upon learning that four persons were experiencing difficulty in the heavy seas approximately one hundred yards offshore, Captain Siefert, who was engaged in attempting to salvage ancient relics from a sunken ship near the shore, immediately plunged into the turbulent waters and swam to the scene in order to render assistance. Despite the fierce undertow and crushing breakers, he managed to effect the rescue of one of the victims, a woman, after an exhaustive struggle. In the citation accompanying the medal, Secretary of the Navy Paul H. Nitze stated, "His prompt, courageous, and determined actions were in keeping with the highest traditions of the United States Naval Service."
Captain Siefert has just completed a tour of duty in the Office of the Judge Advocate General where he served as Director of the Civil Law Division. He will assume duties as Assistant District Legal Officer of the 11th Naval District with headquarters in San Diego, Calif.
EMIL BROWN FUND PREVENTIVE LAW PRIZE AWARDS The Emil Brown Fund has announced the establishment of annual Preventive Law Prize awards. The purpose of the award program is to expand the field of written knowledge of successful preventive law techniques that may be put to use by practicing attorneys and students of the law. The first awards will be made in November 1964.
Cash awards will be made for outstanding lead articles on preventive law. Special awards or recognition may be given for noteworthy projects in Preventive Law. The Fund has stated that work done in the legal assistance field would come within the scope of "special projects."
This is not a contest. No entry blanks or applications are required. Any article or writing in an appropriate journal or publication or other special project which comes to the attention of the Reviewing Board will be considered.
The Reviewing Board is composed of Professor David F. Cavers, Harvard Law School; Chief Justice Frank R. Kenison, Supreme Court of New Hampshire; Professor F. Hodge O'Neal, Duke Law School; Felix F. Stumpf, Administrator, California Continuing Education of the Bar; and Richard P. Tinkham, former chairman of the American Bar Association Committee on Public Relations.
All communications concerning the awards should be addressed to Emil Brown Fund, Preventive Law Prize Awards, ATTN: Louis M. Brown, Administrator, 9171 Wilshire Boulevard, Beverly Hills, Calif.
NAVY LEAGUE AWARD FOR LEGAL WRITING
mission and Bettin Stallin, a private practitioner, also a past National President of the Federal Bar Association.
Prior recipients of the Navy Lawyer Award were Lieutenant William L. Craig, USNR, in 1960 for his article, "Double Jeopardy and Cumulative Sentencing in the Military,” which appeared in the Georgetown Law Journal, Fall 1959; Lieutenant Commander Richard E. Blair, USN, in 1961 for the article “Court-Martial Jurisdiction Over Retired Regulars: An Unwarranted Extension of Military Power”, in the Fall 1960 issue of the Georgetown Law Journal; and Lieutenant Commander Gardiner M. Haight, USN, for his article entitled "Argument of Military Counsel on Findings, Sentence and Motions: Limitations and Abuses", which appeared in the Military Law Review, April 1962
NAVY LAWYER AWARD FOR 1964
Commander Andrew J. Valentine, USN, was presented the Navy League's Navy Lawyer Award for 1963 by Robert H. Barnum, President of the Navy League of the United States, at the Awards Luncheon during the annual convention of the Navy League in Dallas, Tex., on 20 May 1964.
This award of $500 is given annually to the Navy Law Specialist who, during the calendar year, publishes an article selected by a distinguished panel of civilian lawyers and legal specialists as being the best from among those nominated on the basis of overall reader interest, literary excellence, professional merit, and contribution to the Navy.
Commander Valentine's article, “The U.S. Quarantine of Cuba: A New Wine in a New Bottle," was published in the Summer 1963 issue of the Federal Bar Journal. It was selected as best of the year by a panel composed of James E. Palmer, Jr., Counsel for the Housing Subcommittee of the Senate Committee on Banking and Currency and a past National President of the Federal Bar Association, Robert Seaver, Hearing Examiner with the Federal Maritime Com
The 1964 competition is open to any Navy Law Spe cialist, regular or reserve, on active duty who has not previously received this award. To be eligible for submission in the competition an article must relate to any aspect of law in relation to the Navy, must have been written by an eligible Navy Law Specialist, and must have been published during calendar 1964 in a periodical acceptable to the Awards Committee as hav. ing substantial circulation.
Entry of an article in the competition may be made by the author or by any person desiring to nominate an article with the written consent of the author.
No requirement is made as to length or form.
Selection from the submitted articles as the "Best of the Year 1964" will be made by the judges on the basis of:
(1) Overall reader interest.
Additional details may be found in JAG NOTICE 1650 of 1 July 1964 (Subject: Annual Navy Lawyer Award competition sponsored by the Navy League of the United States).
BULLETIN BOARD (Continued from page 304)
Methodist University, Dallas.
miralty and Shipping Section, West Coast, Depart
ment of Justice, San Francisco. LT Michael F. Fasanaro, USN, from COMNAV
FORMARIANAS to COMSERVLANT, NORVA. LCDR Lawrence E. Flynn, USNR, from PHIBLANT
to PHIBASE, Little Creek. LCDR Richard L. Fruchterman, USN, from PRNC to
CAPT Wyman N. Jackson, USN, from JAG West Coast,
San Bruno to COMTWELVE. LT Thomas H. Johnson, USNR, from HEDSUPPACT,
YOKOSUKA to COMSERVRONSIX. CAPT Edward T. Kenny, USN, from OJAG to COM
NAVFORJAP. LT Michael D. La France, USNR, from ADCOM, NTC,
Great Lakes to NAS, Corpus Christi. LCDR Robinson Lappin, USN, from COMSERV
RONSIX to NAVSUPPACTY, NAPLES. CAPT Carl E. Lundin, USN, from OJAG to
U.S. GOVERNMENT PRINTING OFFICE: 1964
compensation can be paid for articles accepted and published.
Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-36.
REAR ADMIRAL WILFRED A. HEARN, USN
udge Advocate General of the Navy
The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this feld.
The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.
Invitations to submit articles are extended to all perBons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No
REAR ADMIRAL ROBERT H. HARE, USN
Deputy and Assistant Judge Advocate General of the Navy
LIEUTENANT COMMANDER GARDINER M. HAIGHT, USN
For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, D.C. 20402 Price 15 cents (single copy). Subscription price $1.25 per year;
50 cents additional for foreign mailing.
JAG BULLETIN BOARD
NATURALIZATION OF ALIEN MEMBERS
OF THE NAVAL SERVICE
A recent decision of the U.S. Court of Appeals for the District of Columbia (United States v. Convento, 7 July 1964) interpreted Public Law 87–301 granting certain naturalization benefits to alien members of the armed forces who served during the Korean conflict.
Under the holding of this case, alien servicemen who served honorably in the armed forces of the U.S. during the period beginning 25 June 1950 and ending 1 July 1955, and who enlisted or reenlisted at any time while in the United States, are now eligible for naturalization, whether or not they have been lawfully admitted to the United States for permanent residence.
Eligible servicemen who wish to become U.S. citizens should file applications at the nearest District Office of Immigration and Naturalization in the United States. Assistance and advice in doubtful cases may be obtained from any Law Specialist or the Judge Advocate General of the Navy.
USNA PREP SCHOOL SCHOLARSHIPS The Society of Sponsors of the United States Navy awards scholarships to young men for preparatory schools to prepare them for entrance to the United States Naval Academy. Young men eligible, in order of precedence, are as follows: Category 1-Sons of deceased, retired and active Navy and Marine Corps personnel; Category II—Sons of personnel of the other military services; Category III—Sons of civilians.
To receive such an award, an applicant must be acceptable to the Scholarship Committee of the Society of Sponsors as to Character, Aptitude for the Naval Service, Scholastic Standings and Physical Fitness. The financial situation of his parents, or of the applicant himself in case he is an orphan, must be such as to warrant the expenditure of the funds of the Society in making such an award.
Interested persons may obtain application blanks from Mrs. Roy S. Benson, Quarters “O”, Navy Yard, Wasbington, D.C. 20390.
JAG JOURNAL INDEX A cumulative index to the JAG JOURNAL will be forthcoming shortly after the first of the year. It will cover the issues from JanuaryFebruary 1961 (Vol. XV, No. 1) through November December 1964 (Vol. XIX, No. 2).
PERSONNEL TRANSFERS Transfers of Navy law specialists, which formerly appeared in the JAG JOURNAL, will no longer be published here. Because of the limited interest in this subject, other media will be utilized to publish this information.
(Continued on page 25)