Multiplicious Pleading

• Author: Captain Kenneth L Youngblood
• Pages: 03

1. INTRODUCTION

   Far a military offender to be charged with two or more offenses for acts arising from the Same transaction is not new to military law. This practice, known as multiplicious pleading, has been characterized by the Court of Military Appeals as the recurrent problem of the "one or the many."' The present court-martial manual permits an accused ta be convicted for all offenses arising out of the same The difficulties that arise from an aliegation of multiple offenses growing out of what appears to be a single transaction are met by the establishment of principles having to do with the imposition of sentence: for only if the offenses are separate may an accused be sentenced for each offense.s

   The ease with which this principle may be stated is deceiving 8s to its applicability and even its popularity. For instance, in United States v. Johnson the Court said:

   'Terrain difficulty fact situations which appear to smack of unfair-ne33 ~n doubling the punishment for what might be regarded a i me omission have Iequired this court TO reek B iudieial means of answering perpiering questi~ns. Thls case presents another faetvai wimn which18 filled with doubt and for little reaeon. In the end result multiphedY would be of little importance if the military services fallowed the previous mle that where an accused i s found gnilty of two or more offenses constituting different aspeeti of the same act OT omission, the court-martial muat limit mpoiifion of pnnishmenr to the aet 01 omissionIn its most important BJpectS."~In United States v. Lerney, the Court observed that if courts-martial did not use some discrimination in testing findings for similarity of offenses, appellate tribunala would be processing

   ~ * Thlr art& was adapted from P thesis presented to The Judge Advo-cate General's School, U.S. Army, Charlottesviile. Virginis, while the author was B member of the Seventh Advanced Class. The opinions and eonelusioni presented herein are those of the author and do not necessarily Iepresent the views of The Judge Advocate General'% School nor any other govern-menta1 agency.

   ** JAGC, U.S. Army: member of the Oklahoma State Bar; graduate of the University of Oklahoma Law School.

   ' U.S Y. Modesett, 9 USCMA 152,26 CMR 414 (1958). 'Par. 76a(S), MCY, 1951.

   ' U.S. Y. Soukup, 2 USCMA 141, 7 CMR 7 (1953).' 5

   USCMA 297, 17 CXR 297, 299 (1954).

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   many cases to correct improper sentences.s The large number of decisions thereafter rendered by the Court concerning this very problem established the accuracy of the court's phophesy and the difficulty in determining just what constitutes separate offenses in any given fact situation.

   Often, when more than one charge is lodged against an offender, the accuser's motires are immediately suspect. It ha8 been ob-served that prosecutors hare a propensity to allege as many offenses as the transaction is capable of supporting.n At least one writer is of the opinion that under the military procedure a malicious accu~er is free to inflame the court by the preferring of multiple charges

   One should not be too quick to condemn multiplicious pleading, however, as it can properly Serre a legitimate purpose. It is submitted that the evidence in ever>- case may not be susceptible of onis one charge. Far erample, in a rape case where there is some doubt as to whether the fifteen year old victim will continue to maintain her expected testimony as to her iack of canrent, could not a charge of carnal knowledge properly be preferred in addition to the charge of rape? Simiiarly, it is not difficult to imagine a staff judge adrocate in a general court-martial jurisdiction reviewing charges arising from Private Smith's dispute with his company commander. In a typical case, Private Smith could, and probably would, be charged with disrespect to his superior officer, willful disobedience, provoking speech and communicating a threat. 3Iultiplicious pleading? Of course. But which charges should remain in order to meet exigencies of proof and which should be striken in fairness to the accused? Of those remaining which are separate offenses for puniahment purposes and how are these determined? The answer to these perplexing questions is not always readily apparent.

   11. HISTORICAL DEVELOPXENTIn the early days of military justice, the multiplication of charges was generally "discountenanced."" But where the ac-cused's act involved several distinct offenses, he could properly be arraigned upon the Same number of separate charges.D It

   'Dig Op. JAG 1866. p. 46: Record Books, ~01. Ill. p 34s (Feb 1865) 'Dip. OP. JAG 1880, p. 147: Record Books, YOI. XXX. P 489 (Jul 1870).74 AGO 1"9tB

   MULTIPLICIOUS PLEADING

   was considered undue multiplication of charges, however, to add charges far minor offenses which were simply acts included in, and going to make up, graver offenses already charged.lD Apparently even in this period those who drafted charges at times had trouble knowing how the evidence in the caw would ultimately turn aut. The opinion was expressed that the prosecution was at liberty to charge an act under t m or more farms, where it was doubtful under which it !?.auld more properly be brought by the testimony. Under such procedure, the accused was not entitled ta call upon the prosecution to elect under which charge it would proceed."

   The noted military justice chronologer, Colonel !Villiam Winthrop, reported that in case8 where the offense apparently fell equally within the purview of two or more Articles of War, or where the legal character of the act of the accused could not be precisely known or defined until developed by the proof, it was not unfrequent to state the accusation under two or mare charges.12 It was thought desirable, where the two articles imposed different penalties, to prefer separate charges thus giving the court wider discretion as to the punishment. Colonel Winthrop admonished, however, that, where the case fell quite clearly within the definition of a certain specific article, to resort to plural charges was neither good pleading nor just to the accused. In view of the court-martial's authority to make substituted findings where the proof fails to establish the specific act alleged, the charging of the same offense under different forms was much less frequently called for in the military than in civil practice.1a

   Apparently the maximum authorized sentence could be adjudged for all charges upon which the accused was found gui1ts.l'

   111. MULTIPLICITY OF CHARGES PRIOR TO THE USIFORRI CODE OF MILITARY JUSTICE

   A. .Waanual for Courts-Martial, 1921

   The provisions of the 1921 Manual were, for the purposes of considering multiplicity of charges, identical with those of the earlier Manual promulgated in 1917. A study of these provisions reveal no startling change. Generally, the prohibitions previously

   ~

   'I Record Books, VOI.

   XV, p. 441 (dul 1865)

   "Record Books, vo1. XXXIII, p. 306 (Aug 1872).

   "Winthrop, Military Law and Precedents, I 206 at 143. I 214 at I48 (ZdEd, 1920 reprint).

   A00 4 0 9 a 75

   >IILITARY LAW REVIEW

   announced and toierations previousiy permitted ere adopted. Howeier, a specific admonition as to the maximum Sentence that should be adjudged and approved in cases involving multiplicious charges was now present.

   Paragraph 66 stated pertinently:

   "The duplication of charges far the same act or omii~ion %ill be

   siwided except uhen by reason ai lack of definite information BP to available eridence ~f may be neeeiaary to charge the same act 01 ommion as constituting two or more distinct affennea. When the same act or omiiamn in its different sipeetr IP charged BJ constituting two or more offenrei. the court, wen though it arrived at a finding of guilty ~n respect of TWO or more speclhcationr, should mpase punishment only with reference ta the act 01 orni$imn ~n Ita mort lrnporfanr B I P ~ C ~ , and if thir

   rule be not abieried by the court the reviewing authority should take the nsce3eary actlo" . I'

   Despite the guidance of paragraph 66 of the Manual, "duplicatian," or multiplication, of charges continued. Charging an included offense with the majar offense appeared ta be the type of improper pleading most indulged in. It was held to be improper pleading to charge an accused with two specifications, one for assault with intent to commit a felony and the other for robbery, when the assault charged nas included in the robbery.'& Also, conversion of property U'BS considered to be included with iarceny,I6 and absence from guard duty was inciuded in absence without leave." Assault with intent to do bodily harm by threatening another with a knife was held to be but one element of the offense af assault with intent to commit sodomy and, accordingly, should not have been charged separateiy.lB After charging an accused with bigamy, he was further charged with the incidents of that offense, adultery with the same woman. This was considered to be contrary to good practice as well as to the express provisions of paragraph 66 of the Manuai.18

   It was not a duplication of charges far an accused's one act to resuit in a charge of felonious assault under Article of War 93 and also a charge of assault upon his superior officer, under Article of War 64. This result was arrived at because the first offense was of a civil nature and the second was purely a miiitar7 offense.2o Nor was it improper to eondct an accused of

   ~

   "CM 120642 i i eŵ i ~ .

   op. JAG 1912.40. D aa(6).

   CM m a 3 8 (i8ia), ~ i ~ .

   oP. JAG. fn. 16.

   1. CM 122371 ( m a ) , D > ~ .

   oP. JAG, lizplo. in. 18.

   JAG 250.3, 15 Feb 1924. Dig. Op. JAG 1912-30. & 1443, p. 717.

   Chl 143403 (1821). Dig. Op JAG 1912-40. 0 428i6)

   CI 153372 (1922). he Op. JAG, mv~,in. 18.

   16 AGO POSl"

   MULTIPLICIOUS PLEADING

   desertion and misbehavior before the enemy where the absence relied on as misbehavior before the enemy was the same absence for which he was charged with deserti0n.l'

   Pursuant to paragraph 66 of the Manual, upon review of those cases...