8 M.J. 853 | U.S. Navy-Marine Corps Court of Military Review | 1980
The only viable issue in this case is whether the crime of aggravated arson, as defined
To be guilty of the crime of arson, a person subject to the Uniform Code of Military Justice must be proven to have “willfully and maliciously bum[ed] or sets on fire an inhabited dwelling, or any other structure, movable or immovable, wherein to the knowledge of the offender there [was] at the time a human being ..”
Courts-Martial, 1969 (Rev.) (MCM) is precisely that of its venerable ancestor, save inconsequential adjective adjustment and typographical transposition.
In United States v. Duke,
In the early morning hours of 5 September 1978, Building 927, Women Recruit Training Command, Parris Island, South Carolina, was the scene of a fire, the cause of which was determined to be solely that of human agency. Building 927, designated on the base plat as S-4, Storage and Issue, was shown to be situated 25 feet from a three-wing, three-tier barracks, Building 929, housing upwards of one hundred enlisted Marines;
When Congress enacted Article 126(a), it specifically intended to expand the common law concept of aggravated arson.
At common law, not only was the “dwelling” or manor house within the protective ambit of the criminal law, but that protection extended as well to outlying buildings found to be within the “curtilage.” Definitionally, that term embraces the inclosed space of ground and buildings immediately surrounding a dwelling house. Black’s Law Dictionary 346 (5th ed. 1979). It includes such space as is necessary and convenient, and is habitually used, for a variety of purposes in connection with the dwelling. See 5 Am.Jur.2d Arson and Related Offenses § 1 (1962). Similarly, a building, auxiliary to a dwelling, which is adjacent to the dwelling and subservient to it, although distinct from the principal structure and not contiguous to it, may be found to be within the curtilage. See id. at § 20. Such a conclusion, which itself is premised on the scope of the curtilage, depends upon the facts of each case. See Rosencranz v. United States, 356 F.2d 310, 313 (1st Cir. 1966).
In the case at bar the evidence definitely established that Buildings 927 and 929 were connected by an open, covered walkway, electrical power lines, and water pipes. There was also clear and convincing evidence that Building 927 functioned to provide various support services to the inhabitants of Building 929. The architectural arrangement of the complex, of which the two buildings were an integral part, evidence an intention on the part of its planners to create a self-sustaining sub-activity within the greater expanse of the Marine Corps Recruit Depot, Parris Island, South Carolina. From these factors we
Appellant’s second assignment of error incorporates his earlier petition for a new trial. This Court finds no merit in appellant’s assertion that he should be granted a new trial. Faced with conflicting affidavits, we are not convinced that the witness, Dátil, gave perjured testimony. Even assuming, arguendo, that Dátil gave perjured testimony as alleged, we cannot say that the exclusion of such testimony would have had a substantial contributing effect upon the findings and without which there probably would have been a finding of not guilty or a failure of proof of the offense alleged. See paragraph 109d (3Xa), MCM, 1969 (Rev.).
Appellant also alleges that the record of trial is not verbatim. He bases this allegation on another affidavit. We find no substance in the affidavit of the interloper
Accordingly, the findings and sentence as approved below are affirmed.
Senior Judge BAUM and Judge PRICE concur.
WOMEN'S RECRUIT TRAINING COMPLEX MARINE CORPS RECRUIT DEPOT PARRIS ISLAND, SOUTH CAROLINA
DINING HALL OFFICES ADMIN & CLASSROOM! RECRUIT BARRACKS GYMNASIUM
. See Art. 126(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 926(a).
. See par. 205a, Manual for Courts-Martial, 1969 (Rev.) (MCM).
. Appellant, contrary to his pleas, was convicted of the alleged offense and sentenced to reduction to pay grade E-l, confinement at hard labor for 5 years, total forfeiture of pay and allowances, and a dishonorable discharge.
. Art. 126(a), UCMJ, 10 U.S.C. § 926(a). This language was taken verbatim from the original version of the Code. See Act of 5 May 1950, Pub.L. No. 506, ch. 169, § 1, 64 Stat. 108 (1950); Title 50 U.S.C. (Ch. 22) § 551-736 (which remained unaltered by later revision). See also Act of 10 August 1956, Pub.L. No. 1028, ch. 1041, § 1, 70A Stat. 1 (1956). See generally Titles 10 and 32, U.S.C.
. See par. 205a, Manual for Courts-Martial, 1951 (MCM, 1951).
. 16 USCMA 460, 37 CMR 80 (1966). The precise allegation in Duke was attempted aggravated arson. See Art. 80, UCMJ, 10 U.S.C. § 880; par. 159, MCM (1951).
. Judge Kilday concurred; Judge Ferguson concurred in the result without opinion.
. United States v. Duke, supra at 464, 37 CMR at 84.
. Id.
. See Appendix, infra.
. See Article 126(b), UCMJ, 10 U.S.C. § 926(b); par. 205 b, MCM, 1969 (Rev.).
. See United States v. Jones, supra at 787.
. See par. 205a. MCM, 1969 (Rev.).
. See United States v. Duke, supra at 464, 37 CMR at 84. See also United States v. Jones, 2 M.J. 785, 786 (A.C.M.R.1976).
. Neither appellate defense counsel nor the affiant has labored to provide this Court with any indicia of affiant’s complete identity or her specific connection with this case. Further, we are uninformed as to any facts and circumstances showing either the impetus for the affi-ant’s disclosure or her standing to examine the completed record of trial. Therefore, we reject her assertions out of hand.