United States v. Smith

Opinion of the Court

The accused was tried by general court-martial in Korea on two charges alleging desertion and absence without leave. He was found guilty on both charges and was sentenced to dishonorable discharge, total forfeitures of pay, and confinement for three years. Army reviewing authorities have upheld the findings and sentence.

Sole prosecution evidence in this case consists of morning report extracts showing unauthorized absence on February 12, 1952; return to duty at 2:00 a.m. on February 25, 1952; and unauthorized absence at 2:00 p.m. on February 25, 1952; together with the testimony of a sergeant that the accused was apprehended on March 22, 1952.

The morning report extracts, which are the only proof of the dates involved in the unauthorized absence charge and the date of inception of absence in the desertion charge, are neither signed nor initialed. In United States v. Parlier (No. 347), 4 CMR 25, dated June 13, 1952, we held that such extracts were not competent evidence. Although defense did not object to the admission in evidence of these extracts, we cannot hold this to be a waiver, since it would be a substantial miscarriage of justice to permit a conviction to stand where the documents in question constitute the sole evidence, of guilt. United States v. Masusock (No. 15), 1 CMR 32, decided November 9, 1951.

The decision of the board of review is reversed and the case is remanded to-The Judge Advocate General of the Army,for action not inconsistent with this opinion.