UNITED STATES, Appellee v. RICHARD C. BOWLING, Private First Class, U. S. Army, Appellant

UNITED STATES, Appellee v RICHARD C. BOWLING, Private First Class, U. S. Army, Appellant 14 USCMA 166, 33 CMR 378 No. 16,828 July 26, 1963 Lieutenant Colonel Ralph Herrod, Captain Ronald L. Gainer, and First Lieutenant E. Pomeroy Williams were on the brief for Appellant, Accused. Lieutenant Colonel Francis M. Cooper and First Lieutenant Mervyn Hamburg were on the brief for Appellee, United States. [MAJORITY — Quinn, Chief Judge:] Opinion of the Court Quinn, Chief Judge: The accused was convicted of eleven specifications of issuing a worthless check with intent to defraud, in violation of Article 123a, Uniform Code of Military Justice, 10 USC § 923a. A review of the record indicates there was sufficient evidence to place in issue the lesser offense of dishonorable failure to maintain funds in the bank to meet the checks on presentment, in violation of Article 134 of the Uniform Code, 10 USC § 934. However, the law officer failed to instruct the court-martial on the lesser offense as a reasonable alternative to that charged. The omission constitutes prejudicial error. United States v Margelony, 14 USCMA 55, 33 CMR 267. The decision of the board of review is reversed and the findings of guilty and the sentence are set aside. The record of trial is returned to The Judge Advocate General of the Army for submission to a board of review for further action consistent with the opinion. Judge Kilday concurs. [DISSENT — Ferguson, Judge] Ferguson, Judge (dissenting): I dissent. In United States v Margelony, 14 USCMA 55, 33 CMR 267, I set forth at length my reasons for concluding that Congress intended to embrace within the terms of Uniform Code of Military Justice, Article 123a, 10 USC § 923a, all bad check offenses previously punished under the provisions of Code, supra, Article 134, 10 USC § 934. In my view, therefore, there is no lesser included offense of dishonorable failure to maintain funds in the bank to meet the payment of a check on presentment, in violation of the latter Article. Accordingly, the law officer did not err when he limited the court-martial to consideration of the charged violations of Code, supra, Article 123a. I would affirm the decision of the board of review.