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2008 edition - Fort Sam Houston - U.S. Army

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3.b.(2)<br />

report a known offense will not make one an acces- Code of Military Justice, to wit: , did,<br />

sory after the fact. Such failure may violate a gen- (at/on board—location) (subject-matter jurisdiction<br />

eral order or regulation, however, and thus constitute data, if required), on or about 20 ,<br />

an offense under Article 92. See paragraph 16. If the in order to (hinder) (prevent) the (apprehension) (tri-<br />

o f f e n s e i n v o l v e d i s a s e r i o u s o f f e n s e , f a i l u r e t o al) (punishment) of the said , (re-<br />

report it may constitute the offense of misprision of c e i v e ) ( c o m f o r t ) ( a s s i s t ) t h e<br />

a serious offense, under Article 134. See paragraph<br />

95.<br />

said by .<br />

(3) Offense punishable by the code. The term “of- 3. Article 79—Conviction of lesser included<br />

fense punishable by this chapter” in the text of the offenses<br />

article means any offense described in the code. a. Text of statute. An accused may be found guilty<br />

(4) Status of principal. The principal who com- of an offense necessarily included in the offense<br />

mitted the offense in question need not be subject to charged or of an attempt to commit either the<br />

the code, but the offense committed must be punish- offense charged or an offense necessarily included<br />

able by the code.<br />

therein.<br />

( 5 ) C o n v i c t i o n o r a c q u i t t a l o f p r i n c i p a l . T h e b. Explanation.<br />

prosecution must prove that a principal committed<br />

the offense to which the accused is allegedly an<br />

accessory after the fact. However, evidence of the<br />

conviction or acquittal of the principal in a separate<br />

trial is not admissible to show that the principal did<br />

or did not commit the offense. Furthermore, an accused<br />

may be convicted as an accessory after the<br />

fact despite the acquittal in a separate trial of the<br />

principal whom the accused allegedly comforted, received,<br />

or assisted.<br />

(6) Accessory after the fact not a lesser included<br />

offense. The offense of being an accessory after the<br />

fact is not a lesser included offense of the primary<br />

offense.<br />

(7) Actual knowledge. Actual knowledge is req<br />

u i r e d b u t m a y b e p r o v e d b y c i r c u m s t a n t i a l<br />

evidence.<br />

d. Lesser included offense. Article 80- attempts<br />

(1) In general. A lesser offense is included in a<br />

charged offense when the specification contains allegations<br />

which either expressly or by fair implication<br />

put the accused on notice to be prepared to defend<br />

a g a i n s t i t i n a d d i t i o n t o t h e o f f e n s e s p e c i f i c a l l y<br />

charged. This requirement of notice may be met<br />

when:<br />

(a) All of the elements of the lesser offense are<br />

included in the greater offense, and the common<br />

elements are identical (for example, larceny as a<br />

lesser included offense of robbery);<br />

(b) All of the elements of the lesser offense are<br />

included in the greater offense, but one or more<br />

elements is legally less serious (for example, housebreaking<br />

as a lesser included offense of burglary); or<br />

(c) All of the elements of the lesser offense are<br />

included and necessary parts of the greater offense,<br />

but the mental element is legally less serious (for<br />

e. Maximum punishment. Any person subject to the example, wrongful appropriation as a lesser included<br />

code who is found guilty as an accessory after the offense of larceny).<br />

fact to an offense punishable by the code shall be The notice requirement may also be met, depending<br />

subject to the maximum punishment authorized for on the allegations in the specification, even though<br />

the principal offense, except that in no case shall the an included offense requires proof of an element not<br />

death penalty nor more than one-half of the maxi- required in the offense charged. For example, assault<br />

mum confinement authorized for that offense be ad- with a dangerous weapon may be included in a<br />

judged, nor shall the period of confinement exceed robbery.<br />

10 years in any case, including offenses for which<br />

life imprisonment may be adjudged.<br />

(2) Multiple lesser included offenses. When the<br />

offense charged is a compound offense comprising<br />

f. <strong>Sam</strong>ple specification.<br />

two or more included offenses, an accused may be<br />

In that (personal jurisdiction data), know- found guilty of any or all of the offenses included in<br />

i n g t h a t ( a t / o n b o a r d — l o c a t i o n ) , o n o r the offense charged. For example, robbery includes<br />

a b o u t 2 0 both larceny and assault. , Therefore, in a h proper a case, d<br />

committed an offense punishable by the Uniform a court-martial may find an accused not guilty of<br />

IV-3

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