United States v. McCormick , 12 USCMA 26 ( 1960 )

Opinion of the Court

Homer Ferguson, Judge:

Among other offenses, the accused was found guilty of assault and battery upon a child under the age of sixteen years, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. Intermediate appellate authorities affirmed, and we granted review on the issue whether assault and battery upon a minor under the age of sixteen was conduct violative of Code, supra, Article 134.

The facts surrounding the incidents giving rise to the charges against the accused need not be related. Suffice it to say that the prosecution competently proved that the accused struck his twelve-year-old victim in the face with his fist. Before us, the defense urges that Code, supra, Article 128, 10 USC § 928, is pre-emptive of Code, supra, Article 134, with respect to the offense of assault and battery, and that the offense may not properly be charged as a violation of the latter statute, even though the aggravating feature of the victim’s age is alleged and proved. On the other hand, the Government argues that the President may properly proscribe such conduct under the general article and that, in any event, the erroneous designation of the Article in the Charge is harmless error. A proper solution to the problem lies somewhere between the contentions of the respective parties.

Code, supra, Article 134, provides:

“Though not specifically mentioned in this chapter, all disorders and .neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.” [Emphasis supplied.]

We have heretofore reviewed the legislative purpose in enacting the foregoing statute and determined that it “should generally be limited to military offenses and those crimes not specifically delineated by the punitive Articles.” United States v Norris, 2 USCMA 236, 8 CMR 36, at page 239. See also Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 720, and Hearings before Senate Armed Services Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, pages 37, 47. The Government, however, seeks to limit the rule set forth in Norris, supra, to the facts of that case, and argues that the rule of pre-emption applies only when the services attempt to strike an element from an offense and punish the remaining misconduct as service-discrediting conduct. While that construction of Code, supra, Article 134, may accord with the evidentiary background of the Norris case, as well as some of our later decisions in the same area, see United States v Geppert, 7 USCMA 741, 23 CMR 205, and United States v Johnson, 3 USCMA 174, 11 CMR 174, we have never so limited the doctrine of pre-emption. Indeed, in United States v Deller, 3 USCMA 409, 12 CMR 165, we held that an absence without leave with the added element of intent to avoid basic training could not be punished under the general article in view of the pre-emptive provisions of Code, supra, Articles 85, 86, and 87, 10 USC §§ 885, 886, 887. In United States v Woodson, 3 USCMA 372, 12 CMR 128, we specifically pointed out that the terms of Code, supra, Article 128, forbade invocation of Article 134 to punish an assault with intent to inflict great bodily harm.

That such is a sound construction of Article 134 is beyond doubt. The statute expressly excepts from its coverage conduct “not specifically mentioned in this chapter” and each of the general articles which preceded it, ranging backward through history to those extant in the British Army, were similarly intended only “to provide a general remedy for wrongs not elsewhere provided for.” Winthrop, supra, page 725.

Nor is there any basis for the proposition that the President may create an offense under the Code. To the contrary, our forefathers reposed in the Congress alone the power “To make Rules for the Government and Regulation of the land and naval Forces.” United States Constitution, Article 1, Section 8. The President’s power as Commander-in-Chief does not embody legislative authority to provide crimes and offenses. See Crosskey, Politics and the Constitution, 423-425 (1953) ; concurring opinion of Mr. Justice Harlan, Reid v Covert, 354 US 1, 68, 1 L ed 2d 1148, 77 S Ct 1222 (1957). And in this area under the Code, the Executive’s authority has expressly been limited to the authority to prescribe rules of evidence and procedure and maximum limits upon the punishments which a court-martial may direct. Code, supra, Articles 36, 56, 10 USC §§ 836, 856. See also United States v Symonds, 120 US 46, 30 L ed 557, 7 S Ct 411 (1887), and Hirshberg v Cooke, 336 US 210, 93 L ed 621, 69 S Ct 530 (1949).

For the foregoing reasons, it must necessarily be concluded that a simple assault and battery may not be converted into another offense under Code, supra, Article 134, by allegation and proof of the additional factor of the victim’s age. Congress has acted fully with respect to this offense by its passage of Code, supra, Article 128. Hence, that statute is pre-emptive of the general article. United States v Norris, supra; United States v Woodson, supra. Accordingly, accused’s misconduct properly should have been alleged as a violation of its terms.

The foregoing conclusion, however, does not end the matter. Left for con-sideration is the question of harm to the accused. In United States v Deller and United States v Johnson, both supra, we pointed out that the mere failure to designate the proper Article in the Charge is not prejudicial if the allegations of the specification precisely inform the accused of the nature of the offense he is required to meet. It is obvious that the specification before us meets that test, as it states the very crime proscribed by Code, supra, Article 128, and merely adds the additional element of the victim’s age. Accordingly, the mere charging of the assault as a violation of the general article, while error, was clearly of no moment. Code, supra, Article 59, 10 USC § 859.

It is equally clear that the accused was not harmed with respect to the question of sentence adjudged, whether the assault be held punishable only as confinement at hard labor for six months, as accused argues, or, as provided elsewhere in the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951, by dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. The other offenses of which accused was convicted — two specifications of burglary and one of indecent assault —permitted a possible maximum penalty of dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for twenty-five years. If the punishment for the additional assault is held to be six months rather than two years, the maximum punishment is increased to twenty-five years and six months. The limitation which was set by the law officer extended only to twenty-seven years. Thus, if he erred in treating the assault as punishable by two years’ confinement, he transgressed the proper maximum by only eighteen months. The court-martial adjudged a sentence to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. This was less than one-fifth of the maximum punishment which all agree is proper. Under the circumstances, therefore, the error involved in the instructions on maximum sentence is de minimis, under the decisions of this Court, and the accused is not entitled to relief. United States v Horowitz, 10 USCMA 120, 27 CMR 194; United States v Genuario, 10 USCMA 260, 27 CMR 334.

The decision of the board of review is affirmed.