United States v. Jones

U.S. Army Court of Military Review

United States v. Jones

12 M.J. 893, 1982 CMR LEXIS 1096

CourtU.S. Army Court of Military Review

DecidedJanuary 29, 1982

DocketSPCM 16557

StatusPublished

This text of 12 M.J. 893 (United States v. Jones) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Jones, 12 M.J. 893, 1982 CMR LEXIS 1096 (usarmymilrev 1982).

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Opinion

OPINION OF THE COURT

FOREMAN, Judge:

The appellant was convicted, inter alia, of striking a noncommissioned officer in the execution of his office, in violation of Article 91, Uniform Code of Military Justice, 10 U.S.C. § 891 (1976). He was sentenced to a bad-conduct discharge and confinement at hard labor for 75 days. The convening authority approved the sentence.

The appellant contends that the specification fails to state an offense because it contains no words of criminality. He relies on United States v. Jones, 20 U.S.C.M.A. 90, 42 C.M.R. 282 (1970), which held that the mere allegation of striking without an averment of wrongfulness or unlawfulness was insufficient to describe a violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (1976).

The specification in this case alleges that the appellant did, at a certain time and place, “strike First Sergeant Francisco Gandarilla, his superior noncommissioned officer, who was then in the execution of his office, by striking him in the chest with his hand....” We hold that the specification states an offense. We believe that Jones, which dealt with Article 128, is inapplicable to this case. Article 128 proscribes an attempt or offer to do bodily harm “with unlawful force and violence.” However, Article 91 is violated by one who “strikes or assaults a .. . noncommissioned officer .. . while that officer is in the execution of his office. . .. ” The specification in this case expressly sets out the essential elements of the statute: (1) that the appellant struck someone; (2) that the person struck was a noncommissioned officer; and (3) that at the time of the striking the noncommissioned officer was in the execution of his office.

We consider it obvious that Congress did not intend to proscribe a lawful striking of a noncommissioned officer. The striking proscribed in the statute is impliedly unlawful. Likewise, a striking properly alleged [894]*894as a violation of Article 91 is impliedly unlawful. Therefore, we conclude that the specification in this case, which uses the statutory language, is sufficient to state an offense. See United States v. Bartee, 50 C.M.R. 51, 58 (N.C.M.R.1974); United States v. Niemic, 14 C.M.R. 813, 816—17 (A.B.P.1954); United States v. Martin, 13 C.M.R. 587, 589 (N.B.R.1953).

The findings of guilty and the sentence are affirmed.

Senior Judge CARNE and Judge O’DONNELL concur.

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OPINION OF THE COURT

FOREMAN, Judge:

The appellant was convicted, inter alia, of striking a noncommissioned officer in the execution of his office, in violation of Article 91, Uniform Code of Military Justice, 10 U.S.C. § 891 (1976). He was sentenced to a bad-conduct discharge and confinement at hard labor for 75 days. The convening authority approved the sentence.

The appellant contends that the specification fails to state an offense because it contains no words of criminality. He relies on United States v. Jones, 20 U.S.C.M.A. 90, 42 C.M.R. 282 (1970), which held that the mere allegation of striking without an averment of wrongfulness or unlawfulness was insufficient to describe a violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (1976).

The specification in this case alleges that the appellant did, at a certain time and place, “strike First Sergeant Francisco Gandarilla, his superior noncommissioned officer, who was then in the execution of his office, by striking him in the chest with his hand....” We hold that the specification states an offense. We believe that Jones, which dealt with Article 128, is inapplicable to this case. Article 128 proscribes an attempt or offer to do bodily harm “with unlawful force and violence.” However, Article 91 is violated by one who “strikes or assaults a .. . noncommissioned officer .. . while that officer is in the execution of his office. . .. ” The specification in this case expressly sets out the essential elements of the statute: (1) that the appellant struck someone; (2) that the person struck was a noncommissioned officer; and (3) that at the time of the striking the noncommissioned officer was in the execution of his office.

We consider it obvious that Congress did not intend to proscribe a lawful striking of a noncommissioned officer. The striking proscribed in the statute is impliedly unlawful. Likewise, a striking properly alleged [894]*894as a violation of Article 91 is impliedly unlawful. Therefore, we conclude that the specification in this case, which uses the statutory language, is sufficient to state an offense. See United States v. Bartee, 50 C.M.R. 51, 58 (N.C.M.R.1974); United States v. Niemic, 14 C.M.R. 813, 816—17 (A.B.P.1954); United States v. Martin, 13 C.M.R. 587, 589 (N.B.R.1953).

The findings of guilty and the sentence are affirmed.

Senior Judge CARNE and Judge O’DONNELL concur.

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