United States v. Smith
8 C.M.A. 400
United States Court of Militar...
1957
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Opinion of the Court

Per Curiam :

One of the specifications to which the accused pleaded guilty sets out a violation of Article 1271 (2), U. S. Navy Regulations, which prohibits “possession of any dangerous weapon.” The specification was laid under Article 92, Uniform Code of Military Justice, 10 USC § 892.

The law officer’s instructions on the maximum sentence described the offense as punishable by confinement for two years. This was error. In United States v Lowe, 4 USCMA 654, 16 CMR 228, we held that a substantially similar regulation was intended to apply to conditions “which are analogous to concealment.” We pointed out that military personnel often possess dangerous weapons for legitimate purposes. A literal interpretation of the regulation would bring within its condemnation many persons having entirely proper possession of a dangerous weapon, such as a sentry or shore *401patrolman on duty, or a cook working in the galley with a carving knife. This construction would be contrary to the apparent purpose of the regulation. Here, as in the Lowe case, therefore, the offense defined by the regulation is substantially that of possessing a weapon under circumstances which would violate Article 134 of the Uniform Code. Since the Table of Maximum Punishments (Manual for Courts-Martial, United States, 1951, paragraph 127c, Section A) lists a specific punishment for concealed weapons, Footnote 5 limits the punishment.1 Accordingly, the decision of the board of review as to the sentence is set aside. The record of trial is returned to the board of review for reassessment of the sentence.

Footnote 5 provides as follows: “The punishment for this offense [Violating a general order or regulation] does not apply in those cases wherein the accused is found guilty of an offense which, although involving a failure to obey a lawful order, is specifically listed elsewhere in this table.”