United States v. Keyes

8 C.M.A. 730, 8 USCMA 730, 25 C.M.R. 234, 1958 CMA LEXIS 682, 1958 WL 3125

• Court: United States Court of Military Appeals
• Decided: February 21, 1958
• Docket: No. 10,990
• Status: Published

Opinions

Opinion of the Court

HomeR Ferguson, Judge:

Review was granted in this case to consider whether the accused was prejudiced by reason of the law officer’s references to paragraph 76a of the Manual for Courts-Martial, United States, 1951, on the question of sentence. Although the accused was tried before the date established in United States v Rinehart, 8 USCMA 402, 24 CMR 212, when the use of the Manual by court members was to be completely discontinued, we believe the references under the circumstances of the instant case constitute prejudicial error requiring a new sentence determination by a court-martial. The accused had pleaded guilty to and was convicted of the larceny of military payment certificates from a noncommissioned officer’s club. The court-martial adjudged a sentence which included a punitive discharge, partial forfeitures and confinement at hard labor for six months. Faced with a similar issue in United States v Starnes, 8 USCMA 427, 24 CMR 237, we held that it was prejudicial error, where the law officer’s instructions on sentence referred the court to paragraph 76 of the Manual, supra, which in turn refers to paragraph 33h, which provides in part that the retention in the armed forces of thieves and persons guilty of moral turpitude injuriously reflects upon the good name of the military service and its self-respecting personnel. Our holding, therefore, in the instant case is controlled by Starnes, supra, and a similar result must obtain.

The decision of the board of review is reversed. A rehearing on the sentence is ordered.

Chief Judge Quinn concurs.