4 C.M.A. 701 | United States Court of Military Appeals | 1954
Opinion of the Court
Upon approval of his conviction of desertion as well as of the sentence to dishonorable discharge, total forfeitures and confinement at hard labor for three years, by a board of review, the accused petitioned this Court to determine the sufficiency of the evidence to support the finding of apprehension.
The sole evidence of this element of the offense is in the form of a stipulation of the expected testimony of Agent G. Gillen, Federal Bureau of Investigation, entered into by the parties, which we set out in full:
“My name is G. Gillen and I am an agent of the Federal Bureau of Investigation and was such agent at the time herein mentioned. On 3 May 1954 at 2215 hours, I apprehended the accused herein, Private James F. Crawford, RA 18 365 871, on the street at 6449 Smith Yale in Chicago, Illinois. The accused neither surrendered, requested that he be apprehended, nor voluntarily initiated his being apprehended.”
This stipulation is substantially the same as those with which we were concerned in United States v. Beninate, 4
No material difference is found in the fact that in the instant case the accused was apprehended by an agent of the Federal Bureau of Investigation, whereas in the cited cases state or local authorities were involved. Article 8, Uniform Code of Military Justice, 50 USC § 562. Agents of that Bureau are authorized to apprehend individuals for violations of Federal laws other than encompassed by the Uniform Code of Military Justice. Such an apprehension does not operate to terminate an unauthorized absence from one of the armed forces. Termination results only from a return to military control. In the case at bar, whether the accused’s return to military control was voluntary or involuntary was not shown. Nor can involuntariness be inferred from a showing that he returned to military control one hour and forty-five minutes after his apprehension by Agent Gillen.
The finding of apprehension is set aside. The case is returned to The Judge Advocate General of the Army for submission to a board of review for redetermination of an appropriate sentence.