SPCM 15438 | U.S. Army Court of Military Review | Sep 2, 1981
OPINION OF THE COURT
Contrary to his pleas of not guilty, the appellant was convicted of assault with a dangerous weapon, larceny of taxicab services, and carrying a concealed weapon in violation of Articles 128, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 921, and 934.
This Court requested briefs on the question of whether taxicab services can be the subject of a larceny under Article 121, UCMJ. Those briefs have been filed. We conclude that taxicab services cannot be stolen in violation of the Article.
Article 121, UCMJ, provides in part as follows:
(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind ... (emphasis added).
In turning to the court decisions interpreting Article 121, we find that the Court of Military Appeals has recognized the issue but has not been required to decide whether services can be the subject of larceny. In United States v. Herndon, 15 USCMA 510" court="None" date_filed="1965-10-29" href="https://app.midpage.ai/document/united-states-v-herndon-8573792?utm_source=webapp" opinion_id="8573792">15 U.S.C.M.A. 510, 36 C.M.R. 8 (1965), the Court was presented with the question of the sufficiency of specifications under Article 134, UCMJ, alleging that the accused had wrongfully and unlawfully obtained telephone services through fraud. The Court determined that the specifications stated an offense in fraud under the general article as charged. It specifically declined to answer the question of whether such services could be the subject of a larceny.
Among the different armed services, the Air Force first considered the issue. In two well reasoned opinions that analyzed Article 121, UCMJ, and its legislative history, that Court (Board of Review) concluded that the use of a rental car, United States v. McCracken, 19 C.M.R. 876 (A.F.B.R.1955), and telephone services, United States v. Jones, 23 C.M.R. 818 (A.F.B.R.1956) could not be the subject of larceny. The Court concluded that the terms “money, personal property, or article of value”, as used in Article 121, were not meant to encompass items not having a corporeal existence.
The Army Court (Board of Review) in an opinion after Herndon determined that the “use and occupancy” of government quarters could not be the subject of an Article 121 larceny charge. United States v. Case, 37 C.M.R. 606 (A.B.R.1966), pet. denied 37 C.M.R. 470 (1967). The Court discussed at length the question of what could be stolen and in reaching its conclusion cited McCracken and Jones approvingly. In its most recent case, however, this Court concluded that taxicab services could be the subject of a larceny under Article 121. United States v. Brazil, 5 M.J. 509 (A.C.M.R.1979). The Court reached its decision without giving its reasons and without discussing or even citing the cases of Jones, McCracken, and Case.
The Government argues that Brazil controls here and that this Court should continue the trend of embracing in the larceny statute as property almost anything of value. We decline to do so.
Historically, the definition of property that can be the subject of larceny has been limited to tangible items. It does not include services. Wharton’s Criminal Law, 14th Edition, Vol. Ill, § 383. The broadened scope of the law has come from statutory changes, not judicial changes. Id.; American Law Institute, Model Penal Code, Part II, § 223.7. We conclude that Article 121, based as it is on the New York Penal Code, does not include services within the class of property that can be stolen.
The relief sought by appellant in this case is the setting aside of the larceny conviction and substitution “of an offense sounding in fraud under Article 134, UCMJ, and reassess[ment] of the sentence accordingly.” The Government argues for affirmance as charged, and in the alternative joins in the prayer for affirmance of an Article 134 fraud offense.
The findings of guilty of Charge II and its specification are set aside and the charge and specification are dismissed. The remaining findings of guilty are affirmed. In view of the seriousness of the assault offense, no reduction in sentence is warranted. The sentence is affirmed.
. The military judge acquitted appellant of dishonorably failing to pay his debt for the taxi fare.
. The Court of Military Appeals’ decision in Herndon points to one possible method of charging when the theft of services involves fraud.