United States v. Camacho

19 C.M.A. 11, 19 USCMA 11, 41 C.M.R. 11, 1969 CMA LEXIS 671, 1969 WL 6261

• Court: United States Court of Military Appeals
• Decided: October 10, 1969
• Docket: No. 21,659
• Status: Published

Opinions

Opinion of the Court

Darden, Judge:

Accused has been convicted by a general court-martial at Camp Pendle-ton, California, of four specifications involving housebreaking with intent to commit larceny and two specifications of larceny, in violation of Articles 130 and 121, Uniform Code of Military Justice, 10 USC §§ 930 and 921, respectively. The validity of these convictions in the light of the Supreme Court’s decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), is now in issue. Three of the housebreakings charged occurred in the civilian community of Oceanside, California. The fourth took place in Mesa. Arizona, as did the two counts of larceny. All the offenses set forth in the specifications, except one housebreaking, involved civilian victims. The exception is the housebreaking alleged in Charge I, specification 1. There, the dwelling entered was the civilian residence of a Marine Corps officer.

In United States v Rego, 19 USCMA 9, 41 CMR 9, believing that the Supreme Court in O’Callahan v Parker, supra, footnotes 14 and 19, indicated that “thefts” from other soldiers were military crimes triable by courts-martial, we affirmed that accused’s conviction of a housebreaking offense against a fellow airman. Although Rego knew of his victim’s service-connection, while Camacho apparently did not, we believe this an insignificant difference. On the basis of these authorities, we hold that the Marine Corps had jurisdiction to try this accused for the housebreaking alleged in Charge I, specification 1.

Conversely, under the facts revealed by this record of trial and applying the standard set forth in O’Callahan v Parker, supra, we are equally convinced that the Marine Corps was without jurisdiction to try the accused on the remaining specifications under Charge I and Charge II and its specifications. United States v Prather, 18 USCMA 560, 40 CMR 272.

Accordingly, the decision of the board of review as to Charge I, specification 1, is affirmed. The findings of guilty as to Charge I, specifications 2, 3, and 4, and Charge II, specifications 1 and 2, are set aside and dismissed. The record of trial is returned to the Judge Advocate General of the Navy. The Court of Military Review may reassess the sentence on the basis of the remaining finding of guilty or a rehearing on the sentence may be ordered.