United States v. Hayes

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

Two issues are presented on this appeal. The first is whether the evidence is sufficient to support the findings of guilty of specification 9. We have examined the record of trial with care, and we agree that the evidence is sufficient to support the court-martial’s finding of guilty beyond a reasonable doubt.

The second question relates to the correctness of the accused’s conviction of wrongful appropriation as a lesser included offense to the charge of larceny alleged in specification 1. The specification charges the accused with the larceny of $684.43. It appears that the accused worked in the Central Finance and Accounting Office, Heidelberg, Germany. He arranged for advance pay for Specialist Second Class Grier, who desired to purchase an automobile. The advance was to be made up by deductions from Grier’s regular monthly pay. Although the evidence is in conflict, it can be concluded that the advance pay was not authorized by finance regulations. After two deductions from his pay, Grier learned that the advance was questionable and requested that he receive no further pay until his indebtedness was completely liquidated. On this evidence, the law officer instructed the court-martial only on the elements of the offense charged. However, the court-martial returned findings of guilty of the lesser offense of wrongful appropriation.

The Government argues, on the authority of United States v Krawczyk, 4 USCMA 255, 15 CMR 255, and United States v Krull, 3 USCMA 129, 11 CMR 129, that since the same money could not be returned, only the offense of larceny was in issue; consequently, the findings are beneficial, not prejudicial, to the accused. We disagree with the argument and the conclusion. Apart from circumstances which may impart special value to a coin or bill as a numismatic item, one dollar bill is the same as another. It is not larceny, for example, to take two five dollar bills in exchange for a ten dollar bill without the knowledge or consent of the owner. Anything in United States v Krawczyk, supra, and United States v Krull, supra, which implies a contrary rule, is overruled.

Not every wrongful taking constitutes a violation of Article 121. See United States v Norris, 2 USCMA 236, 8 CMR 36. The intent to deprive the owner of his property, either permanently or temporarily, must include a mens rea. Therefore, the mere “borrowing” of an article of property *630 without the prior consent of the owner does not make out either of the offenses defined in Article 121. Something more is required, and that something is criminal intention. Thus, if one visits the office of a friend, and, finding him absent, takes a book which he has come to borrow, leaves a note to that effect, and returns the book the next day, there is no intent to steal or misappropriate the book and, necessarily, no violation of Article 121. According to the evidence, under proper instructions the court-martial here could have acquitted the accused because of the absence of any criminal intent. Consequently, the instructions were legally insufficient. Judge Ferguson is also of the opinion that without instructions on the lesser offense, the court-martial’s findings cannot stand under any circumstances. Cf. United States v Clark, 1 USCMA 201, 2 CMR 107.

The findings of guilty of specification 1 are set aside. The record of trial is returned to The Judge Advocate General of the Army for resubmission to the board of review. In its discretion it may dismiss specification 1 and reassess the sentence on the remaining findings of guilty, or order a rehearing on that charge and on the sentence.

Judge FeRGUSON concurs.