12 C.M.A. 374 | United States Court of Military Appeals | 1961
Lead Opinion
Opinion of the Court
A general court-martial convicted the accused of larceny and housebreaking, in violation of Articles 121 and 130, Uniform Code of Military Justice, respectively, 10 USC §§ 921, 930. The specification of the latter offense alleges that the accused unlawfully entered “a railroad box car” of the British Railways with intent to commit larceny therein. On this appeal, the accused contends the specification does not allege an offense in violation of Article 130 because a railroad boxcar is not
In United States v Taylor, 12 USCMA 44, 30 CMR 44, the Court held that a large cargo-carrying aircraft was not a structure within the meaning of Article 130. In its opinion, the Court contrasted the aircraft with a railway car, and pointed out that Congress did not intend the two to be “members of the same class.” Implicit in the discussion is the conclusion that a railroad freight car is, as the Manual for Courts-Martial indicates, a “structure” within Article 130. Manual for Courts-Martial, United States, 1951, paragraph 209, page 375. The specification is, therefore, legally sufficient. Accordingly, the decision of the board of review is affirmed.
Concurrence Opinion
(concurring in the result):
I concur in the result.
When, as in this case, a railroad boxcar is used for the storage of goods, it constitutes a “structure” within the meaning of Uniform Code of Military Justice, Article 130, 10 USC § 930, and may be the subject of the offense of housebreaking. United States v Taylor, 12 USCMA 44, 30 CMR 44. I am, therefore, able to agree with the affirmance of the decision of the board of review.
If, however, the majority intend by their general language to establish the principle that any railway car may be the subject of breaking and entering, I must respectfully dissent. The statute in question punishes the entry, with intent to commit a criminal offense, of any “building or structure of another.” Code, supra, Article 130. A “structure” is defined as any artificial combination of parts built up or composed in some definite manner. Black’s Law Dictionary, 4th ed, page 1592. It is, therefore, obvious that some limitation must be placed upon its meaning in the statute involved. Otherwise, housebreaking might be held to have occurred through entry of a hand into a cash register or insertion of a tool into a slot machine. We have previously indicated some of the boundaries of its definition.
In United States v Gillin, 8 USCMA 669, 25 CMR 173, we refused to permit a motor vehicle to be made the subject of the related offense of unlawful entry. Nevertheless, there can be no doubt that it, generically speaking, is a “structure.” In United States v Taylor, supra, we also held that a C-123 aircraft, designed to function as a troop and cargo carrier, was not a “structure” in the sense of Code, supra, Article 130. In that case, we also spoke of railway boxcars in the following manner:
“True it is that the C-123 or other large aircraft may be used as a freight or passenger carrier, and to that extent it is similar to a railroad car. The latter, hoiuever, is commonly used for storage to obviate unloading and reloading, or for want of warehouse space. Likewise railroad cars are often used as living quarters for work crews maintaining the roadbed and in other instances. To the acontrary, it would seem that by its very nature the plane, like the automobile, is ordinarily used simply as a conveyance, and it would be quite unusual that it be utilized for storage or habitation.” [United States v Taylor, supra, at page 46.] [Emphasis supplied.]
The principle deducible from the foregoing is simply that, in order to be the subject of housebreaking, a “structure” must be one “in the nature of a building or dwelling.” Manual for Courts-Martial, United States, 1951, paragraph 209. In order to fall within that limitation, it is obvious that a railroad car must be performing the function of storage or be utilized as a living space when the breaking and entering occurs. Gibbs v State, 8 Ga App 107, 68 SE 742 (1910). If it is merely being used for the carriage of goods, it would clearly seem to be classed with the automobile involved in United States v Gillin, supra, and the cargo and troop-carrying aircraft mentioned in United States v Taylor, supra.
Recourse to analogous civilian authorities reinforces my belief that this is
As the car involved in this case was being used to store the property which it contained, it falls well within the principles which I deem applicable to the mentioned statute. Accordingly, I concur in the affirmance of the decision of the board of review.