United States v. Sumrel

Opinion of the Court

In spite of his plea of not guilty, the accused was convicted of desertion for an unauthorized absence of five months germinated by surrender. The law officer, over defense objection, instructed the court that: “if the condition of ■absence without proper authority is much prolonged and there is no satisfactory- explanation of it, the court will be justified in inferring from that alone an intent to remain absent permanently.” Substantially the same instruction has been held prejudicially erroneous in United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v *400Burgess, 8 USCMA 168, 23 CMR 387. For the reasons expressed in those opinions, the accused’s conviction must be reversed. The record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, approve the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the desertion charge.

(concurring in the result) :

I concur in the result.

The rule in United States v Cothern, 8 USCMA 158, 23 CMR 382, United States v Burgess, 8 USCMA 163, 23 CMR 387, and allied cases, has been fixed. I believe that my separate opinions in those cases are a sufficient indication of my disapproval of that rule. However, further dissents would serve no useful purpose and so I accept the principle as the law of this Court.