Subject: Case Brief Mistake of Fact Date: September 6, 2011 United States v. Short, 4 C.M.A.

. 437, United States Court of Military Appeals, 1954, Casebook at page 193, Judge Robert E. Quinn Facts 1. D was convinced of assault with intent to commit rape. [Note: - MPCWhether the mistake of fact could negate the guilty mental state required in the crime. - To analyze the MPC in this case, firstly determine the mental state of this case. It is a specific intent crime. Assault is the general intent crime because of no additional subsequent reason. Second, to decide whether the mistake of fact could negative the mental state required in the conviction of the crime. Majority support that the honest and reasonable mistake. The dissenting holds that the honest mistake is sufficient. - Common rule: specific intent crime-honest mistake; General intent crime-honest (subjective) and reasonable (objective) mistake. - MPC: only standard of the honest with regard to the mistake. But sometimes the jury does not believe what the defendant says.] 2. D admitted fondling the Japanese girl, but he mentioned that he thought she was a prostitute. And he believed the Japanese girl consented to his proposition. Therefore, D presented a defense of mistake of fact. Procedural History 1. A general court-martial in Japan sentenced D to dishonorable discharge, total forfeitures, and confinement at hard labor for ten years. 2. The convening authority modified the sentence by reducing the period of confinement to five years. A board of review affirmed the conviction and the modified sentence. 3. United States Court of Military Appeals granted review to consider the correctness of the law officers general instructions and his denial of certain defense requests for specific instructions. Issue Whether or not Ds affirmative defense of mistake of fact shall be denied? Disposition The decision of the board of review is affirmed.

Holding Yes, Ds belief failed to satisfy the reasonable and honest standard. Reasoning 1. Defendant shall be acquitted if he had the honest and reasonable belief that the girl had consented or was willing to have connection with her at the time of the alleged rape. 2. In this case, Ds belief failed to satisfy the reasonable and honest standard. 3. Ds personal evaluation of the circumstances is one of the factors to be considered by the court. It is not the conclusive. And the issue whether the womans conduct leads the D to believe she had consented to his act shall also be considered. Separate Opinion Judge Brosman issued his opinion which is concurring in part and dissenting in part. 1. Rape is the general intent crime. The drunkenness shall not constitute a defense to this crime. And an unreasonable mistake of fact could not serve to deny criminal liability. 2. Assault with intent to commit rape is a specific intent crime. Drunkenness could operate to negate the intent required for conviction of such an assault. In this case, the evidence raised the possibility that a mistake of fact on the Ds part precluded the specific intent.