5 M.J. 129 | United States Court of Military Appeals | 1978
Lead Opinion
Opinion of the Court
The appellant was convicted by a special court-martial as an accessory after the fact to the larceny
The appellant was approached in his company area on post by a friend, a fellow serviceman, about cashing the money order. The friend had discovered the money order in a wallet he had stolen from a locker in the post field house on the military installation. The friend revealed that earlier he and a third serviceperson had attempted to negotiate the instrument, but had failed to do so. The friend promised the appellant one-half the amount of the money order for his efforts. The appellant agreed and, with his friend, drove off post
The Court of Military Review found our decision in United States v. Hedlund, supra dispositive. In Hedlund we found service connection and accordingly sustained court-martial jurisdiction over the crime of conspiracy which arose from an agreement, made on post at the Marine Corps Supply Center, Barstow, California, between several persons, to go into town and rob someone for beer money. We observed that “[bjefore leaving the base, the appellant and his companions armed themselves with iron pipes and forks fashioned to fit around the fist . . .” Id. at 12. Thus, the crime of conspiracy, evidenced by the overt acts of equipping themselves with the means to carry out the object of the conspiracy, was formulated on post at the Marine Corps Supply Center. Jurisdiction over that offense was manifest since it occurred
The decision of the United States Army Court of Military Review is reversed. The findings and the sentence are set aside and the charge is dismissed.
. Additionally, the appellant was charged with the larceny of the money order involved, but that charge was dismissed by the judge upon motion of the Government after the appellant’s guilty plea to the charge had been accepted by the court.
. The specification, to which the appellant pleaded guilty, alleged that the offense occurred “at Fort Monmouth,” New Jersey. However, the colloquy between the appellant and the military judge makes it clear that only the agreement to commit the offense occurred on the installation, while the offense itself was committed in a nearby civilian community. See footnote 3, infra. In light of our disposition, however, we need not resolve how this variance affects the providence of the plea.
. The dissenting judge concludes that, at this precise point in the sequence of events, the appellant’s “act of assisting” the thief “was then and there complete” on the installation. A critical reading of these facts, however, reveals that the only activities of the appellant on base were his agreement to cash the money order and his driving off post with his friend. Neither of these acts did anything in fact to hinder the thief being brought to the bar of justice. In fact, the specification itself alleges that the act of the appellant which purportedly operated “to hinder the apprehension” of his friend was his “indorsing and negotiating the object of the larceny in question, to wit: a Central Jersey Bank and Trust Company personal money order.”
. Article 78, Uniform Code of Military Justice, 10 U.S.C. § 878, defines an accessory after the fact to be:
[a]ny person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment .
The military judge, during the providency inquiry into the appellant’s tendered plea of guilty to this charge, had considerable difficulty concluding that the appellant acted even in part out of a concern for hindering the appre-. hension, trial, or punishment of the thief, as opposed to having been moved solely by a personal profit motive. The issue of the correctness of his determination that both concerns operated upon the appellant has not been joined in this Court by the parties. In light of our disposition, we need take no further steps on this matter, other than to wonder at the decision to charge the appellant as an accessory after the fact — a risky charge, to say the least, under these facts — instead of opting for a more logical one which not only would be more descriptive of the appellant’s alleged wrongdoing, but also one whose service connection would be apparent.
. Relford v. Commandant, 401 U.S. 355, 363, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).
. Id. at 367-69, 91 S.Ct. 649.
. The Government contends that jurisdiction should be found because
[t]he entire criminal venture began with the on-post theft of a wallet and included approaching the appellant in his company area and proposing to share half the proceeds of a money order taken from the stolen wallet if the appellant would help in the cashing of said money order.
However, in United States v. Sims, 2 M.J. 109 (C.M.A.1977), this Court rejected the “ ‘preponderant elements’ of ‘the total criminal enterprise’ ” formula for weighing subject-matter jurisdiction as being unacceptable under Rel-ford v. Commandant, supra.
Dissenting Opinion
(dissenting):
An accessory after the fact is one “who, knowing that an offense punishable by [the Code] has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment.” Article 78, Uniform Code of Military Justice, 10 U.S.C. § 878. I think the evidence supports an inference that the accused learned, while on post, that his friend had stolen a wallet containing a money order from a locker at the post field house. While still on post, he agreed to help the thief negotiate the money order, and to that end, left the post in his ear with the friend and the money order. It seems to me that the act of assisting the thief to hinder his apprehension with the stolen property was then and there complete. Consequently, in my view, the act was committed on base and the exercise of court-martial jurisdiction was proper. In view of the comments contained in footnote 3 of the majority opinion, I reaffirm my conviction that jurisdiction predicated upon service connection with the offense does not depend upon whether all the elements of the offense were committed on base. The criteria for determining jurisdiction enumerated by the United States Supreme Court emphasizes that concept. See Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971) and my separate opinion in United States v. McCarthy, 2 M.J. 26, 29 (C.M.A.1976). I would affirm the decision of the United States Army Court of Military Review.
