United States v. Short

4 USCMA 437, 16 C.M.R.II (1954)

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Nature of the Case

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Facts

Two Japanese girls were accosted on the street by two intoxicated GI's, D and Private O'Rouke. Okano ran back to the shop. Tomobe tripped over a stone. She was caught by D. D spoke to her in English. She was then pulled to the front of the latrine and pushed in. The accused entered and closed the door. She tried to get away but D was very big and she was scared. D fondled her and she kept saying 'No' in Japanese as loudly as she could. She was unable to hold him away. The shop manager went to assist and he opened the door and hear Tomobe saying 'No,' and he saw the accused holding her. O'Rourke tapped him on the shoulder, and he made no further effort to interfere. He went to a police box and reported the matter to the Japanese policemen. They hastened to the latrine. One of the policemen opened the door, and in Japanese called out to the accused to stop. In the same language, the accused replied that it was all right. Then he was forcibly removed from the latrine, and taken to the police box. D admitted fondling Tomobe. D denied that he acted unlawfully. D thought she was a prostitute since the area was known to be frequented by them. He 'propositioned' her, and after some negotiation, they agreed on a price of 500 yen. Tomobe showed him the latrine. Inside, Tomobe helped him in his efforts to 'make love to her.' D was under the influence but was generally aware of what he was doing. When the police entered the latrine, he thought that they wanted to arrest the girl as a prostitute. He told them that it was all right because he was anxious to protect her. O'Rourke was so drunk he could not remember the details of the incident. D requested two instructions that were not given: 'In order to constitute an offense, the accused must think victim is not consenting because he must intend not only to have carnal knowledge of the woman but to do so by force. 'The guilt or innocence of the accused depends on the circumstances as they appear to him.'