United States v. Howes

9 C.M.A. 78, 9 USCMA 78, 25 C.M.R. 340, 1958 CMA LEXIS 635, 1958 WL 3163

• Court: United States Court of Military Appeals
• Decided: March 28, 1958
• Docket: No. 10,989
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge:

A general court-martial convened at Travis Air Force Base, California, convicted the accused of six specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. To five of these specifications, which alleged larcenies under $20.00, he pleaded guilty. As to the remaining specification, which alleged larceny of over $50.00, he pleaded not guilty but was found guilty as charged. The staff judge advocate in his post-trial review, after a thorough discussion of all offenses charged, advised that: “The record of trial was legally sufficient to sustain the findings of guilty and the sentence.” With respect to those offenses to which the accused pleaded guilty, this advice was entirely sufficient. United States v Fields, 9 USCMA 70, 25 CMR 332. As to the remaining specification, to which he pleaded not guilty, however, we reach a contrary conclusion. Nowhere in this otherwise excellent review was the convening authority informed that his staff judge advocate was convinced of the accused’s guilt — of the offense to which he had pleaded not guilty — beyond a reasonable doubt. By the same token, the review failed to inform the convening authority that in order to approve the court’s findings he too must be convinced beyond a reasonable doubt. In these respects the advice was incomplete. United States v Fields, supra; cf. United States v Grice, 8 USCMA 166, 23 CMR 390; United States v Johnson, 8 USCMA 173, 23 CMR 397; United States v Jenkins, 8 USCMA 274, 24 CMR 84; United States v Romero, 8 USCMA 524, 25 CMR 28.

The record of trial is returned to The Judge Advocate General of the Air Force for submittal to the convening authority for further proceedings in conformity with Articles 61 and 64 of the Code, supra, 10 USC §§ 861 and 864.

Chief Judge Quinn concurs.