
    UNITED STATES, Appellee v RALPH N. SMITH, Private First Class, U. S. Army, Appellant
    8 USCMA 608, 25 CMR 112
    No. 10,464
    Decided January 17, 1958
    
      Major Edward Fenig and First Lieutenant William H. Carpenter were on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee and First Lieutenant Jay D. Fischer were on the brief for Appellee, United States.
   Opinion of the Court

HomeR FeRGüson, Judge:

In spite of his plea of not guilty, the accused was convicted of desertion, terminated by apprehension, in contravention of Article 85, Uniform Code of Military Justice, 10 USC § 885. On the question of intent, the law officer instructed the court as follows:

“. . . intent may be proved by circumstantial evidence, that is, by facts and circumstances from which, alone or in connection with other facts, you may, according to the common experience of mankind, reasonably infer the existence of an intent such as evidence of a much prolonged period of absence without authority for which there is no satisfactory explanation.”

We held such an instruction prejudicial in United States v Soccio, 8 USCMA 477, 24 CMR 287, because it had the effect of shifting the burden of proof to an accused to prove his innocence rather than placing such burden on the Government to prove guilt beyond a reasonable doubt. The decision of the board of review, therefore, must be reversed and the record returned to The Judge Advocate General of the Army for resubmission to a board of review. The board, in its discretion, may approve the lesser included offense of absence without leave and reassess the sentence or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

LatimbR, Judge

(dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.  