United States v. Burr

2 C.M.A. 182, 2 USCMA 182

Opinion

Opinion of the Court

Per Curiam:

The accused Burr was tried by general court-martial and found guilty of larceny in violation of Article 121, Uniform Code of Military Justice, 50 USC § 715. He was sentenced to dishonorable discharge, total forfeitures and confinement at hard labor for one year. The convening authority approved and the board of review affirmed. We granted the petition for review by the accused. The substantial question involved here is the sufficiency of the instructions by the law officer.

The items allegedly stolen by the accused were articles of clothing belonging to two members of his unit. The accused admitted the taking but disclaimed ,,any intention of keeping the property permanently, stating that he merely borrowed the clothing with the consent of at least one of the owners. This claim was corroborated to a certain extent by the testimony of the owner who appeared on behalf of the prosecu-, tion. Such evidence clearly made it incumbent upon the law officer to give instructions on the lesser included offense of wrongful appropriation, which he failed to do. This is reversible error. United States v. Clark (No. 190), 1 USCMA 201, decided February 29, 1952.

The decision of the board of review is reversed and a rehearing is ordered.