United States v. Krull

3 C.M.A. 129, 3 USCMA 129, 11 C.M.R. 129, 1953 CMA LEXIS 731, 1953 WL 1991

Opinions

Opinion of the Court

George W. Latimer, Judge:

On January 24, 1952, the accused pleaded guilty to two specifications alleging the larcenies of certain subsistence items of a value less than $20.00, in violation of Article 121, Uniform Code of Military Justice, 50 USC § 715. One of the thefts occurred on December 14, 1951, while the second occurred two days thereafter. Accused likewise pleaded guilty to two specifications of misappropriation of the same items. These last two specifications alleged violations of Article 133 of the Code, 50 USC § 727, which permits violations to be punished as conduct unbecoming an officer and a gentleman. In spite of the admissions of guilt, trial was held as if pleas of not guilty had been entered and witnesses called by the Government testified to facts which, when summarized, established the following sequence of events.

On or about 7:00 p. m., December 14, 1951, the accused, who was the company commander of Company B, 51st Armored Engineer Battalion, gave a list of groceries to a cook on duty in the enlisted mess of that company and ordered him to take them from the storeroom of the mess, pack them in a box and place them where they could be picked up by the accused. The cook complied with the order and the accused, who drove his car to the rear door of the kitchen mess, picked up the box, placed it in his car and drove away. The groceries generally consisted of five pounds of sugar, a loaf of bread, a jar of pickles, one pound of butter, five pounds of potatoes, eight lemons, and a couple of pounds of onions. There could have been additional items or larger quantities than those enumerated but the written list given to the cook which particularized the items was not available as it had been picked up by the accused. Some two days later, the accused brought his wife to the mess for supper. After the meal had been finished, he entered the kitchen storeroom, took a pod of garlic and a pound of lard, placed them in his pocket and then departed. No explanation was given by the accused to the mess personnel as to why he was taking foodstuff belonging to the enlisted men’s mess.

After the court-martial had announced findings of guilty the accused was asked if he desired to testify in extenuation and mitigation. He accepted the opportunity and offered the following explanation: That he had received a letter from his wife notifying him that she would arrive on or about December 14, 1951; that she had furnished him a list of groceries needed to commence housekeeping but because of the pressure of his duties, he was unable to purchase the items; that he intended to borrow them from the mess and to repay them; that he gave the cook a list but picked it up because he wanted a record of what he had taken; that on the second occasion, he was showing his wife around the mess hall when he recalled some other items she needed; and that was the reason he took the garlic and lard. Accused’s wife corroborated his version of the incident to the extent that she claims to have written a letter to the accused prior to her arrival and included therein a list of staples which she desired to have him obtain.

The court-martial sentenced accused to be dismissed from the service and this sentence, together with the findings of guilt, was approved by the convening authority and a board of review in the office of The Judge Advocate General of the Army. Accused, within the time permitted by law, petitioned this Court, asking that we review the record to determine whether or not his statement in mitigation and extenuation was so inconsistent with his plea of guilty that the law officer erred in not rejecting it and substituting therefor a plea of not guilty. We granted the petition and limited the issue to that particular question.

Article 45 (a) of the Uniform Code of Military Justice, 50 USC § 620, provides in part as follows:

“If an accused arraigned before a court-martial makes any irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.”

Paragraph 70 of the Manual for Courts-Martial, United States, 1951, amplifies this by providing as follows:

“In court-martial procedure, pleas include guilty, not guilty, and pleas corresponding to permissible findings of lesser included offenses. See 74b (3). The court may refuse to accept a plea of guilty and should not accept the plea without first determining that it is made voluntarily with understanding of the nature of the charge. If an accused arraigned before a court-martial makes any irregular pleading, or after a plea of guilty sets up matters inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record,. and the court shall proceed as though he had pleaded not guilty (Art 45a)..."

Counsel for accused urges strongly that the quoted Article and paragraph commanded that the law of- ficer, after hearing accused’s statement, reject his plea of guilty and permit the case to he tried on its merits. To dispose of the contention that the plea was improvidently entered, we direct attention .to the fact that this is not' a case in which the findings are predicated solely on a plea of guilty. When accused entered that plea, the law officer complied with the provisions of the Manual quoted above and inquired as to whether its legal effect had been explained and was fully and completely understood by him. After having been assured that the accused had-been informed properly as to his rights and that he understood the effect of his.plea and that the maximum sentence could be imposed without further proof, the law officer directed the parties to proceed. Apparently all parties concluded that this direction meant to proceed with the trial as every step in a contested proceeding was taken. Challenges to members of the court-martial had been previously exercised by counsel for the accused so the next step was the statement by the law officer that he would hear the presentation of any legal authorities. When both sides disclaimed a desire to submit authorities, the taking of testimony commenced. Witnesses were examined by the Government and cross-examined by the accused. After completion of its evidence, the Government rested. The right to testify or to remain silent was explained to the accused and' he elected the latter. The law officer had previously submitted his proposed instructions to counsel for both sides and they were interrogated as to any corrections, additions, deletions, or objections that they cared to make.. They were also afforded an opportunity to submit special instructions. Complete instructions were then given by the law officer on all .charges and specifications. The court-martial closed to deliberate on its verdict and, as previously stated, returned findings of guilty on all charges ■ and specifications. When every step in a completed trial is carried on in the presence of an officer and his counsel, when an opportunity to hear and know the nature and extent of the Government’s case is afforded . the accused, -.when a full and fair explanation of the effect of the plea is given, and when an opportunity to testify on. the merits if he so desires is suggested and an accused sits by and persists in his plea of guilty, we are unimpressed with a contention that improvidence misled him. Rather we are constrained to believe that leniency in sentence prompted his trial strategy.

One additional matter bearing on imprudence bears discussion. We call attention to the fact that the accused was represented by a captain of the Judge Advocate General’s Corps of the United States Army. He was certified as competent to defend cases tried by general courts-martial and to represent those charged with serious crimes. He represented the accused at the pretrial investigation which was held on or about the 10th day of January 1952. This was almost a month after the first offense and some two weeks before the case was tried. He was entirely familiar with the evidence which could be produced by the Government as the affidavits given to the investigating officer and used at the pretrial investigation were available to and undoubtedly read by him. In addition, we must assume that he was entirely familiar with the explanation to be given by the accused. There is a delicate question of judgment involved in permitting an accused to enter a plea of guilty and counsel should be free to exeibise their discretion. There are factors for and against entering the plea which must be weighed. Counsel must make a choice as to whether his client should contest the issues and run the risk of having damaging evidence presented against him by the Government or admit the crime and seek to avoid having aggravating circumstances paraded before the court-martial. Apparently the. couns.el for the accused concluded to follow the latter course and possibly for a very excellent reason. A quick glance at the affidavits made by witnesses attached to the record as part of the pretrial investigation indicates that • much • damaging evidence might have been presented against the accused. Undoubtedly to escape this and a hope that a statement in mitigation in which the accused would seek to lessen the gravity of the offense and thereby obtain consideration on the sentence, were the motives influencing counsel to proceed as he did. ■ This hardly smacks’ of improvidence. On the contrary, it indicates- a well-considered plan to assist the accused. Because the sentence imposed was greater than that hoped for, is not sufficient to justify a claim by counsel on appeal that the plea was improvidently entered.

The next contention requires that we dispose of the question as to whether the statement in mitigation raised any defense to the charges. Assuming for the purpose of this case that the law officer was duty bound to accept the story related by accused, without regard to its contradictions, we conclude it failed to state a defense and that it was not inconsistent with the plea. On the contrary, it established that accused was guilty of the offenses charged. We need say little about the two specifications alleging misappropriation as accused admitted every element of that offense and particularly did he establish an intent to deprive the Government of its property for a temporary period. The larceny specifications present a more complicated issue but it must be resolved against the accused. There can be no question about the fact that his statement conclusively established that he intended to deprive the Government permanently of the particular property he misappropriated as it was consumed. What we are assuming he established is this: That he intended to return equivalent property. The Manual for Courts-Martial, United States, 1951, contains a provision which covers that particular situation. Paragraph 200(a), page 360, contains the following language:

“An intention to pay fpr the property stolen or otherwise to replace it with an equivalent is not a defense, even though such an intention existed at the time of the theft, and, once a larceny is committed, a return of .the property or payment for it is no defense.”

Unless we can ignore that language the accused raised no matter inconsistent with his plea. We need not delve into the refined differences between larceny and embezzlement and as to how the wording might be applied to each as the Code has combined both -into the principal offense of larceny or the included offense of - misappropriation. (See Article 121, 50 USC §715.) Therefore, the only authority we could seize upon to ignore the plain wording of the Manual would be that found.in the Code which provides that the rules and regulations promulgated by the President must not be inconsistent with or contrary to the Code. We are unable to reach a conclusion that the language necessarily runs contra to the definition of larceny as found in Article 121. The two can be reconciled, and it is our duty to so interpret them. The Code mentions the deprivation of property permanently and the Manual states in substance that Congress meant the identical property. There is respectable civilian authority which supports • the Manual statement and there is good authority contrary thereto. This division of authorities shows that we do not stand alone in our belief that the two provisions are not inconsistent and those supporting the Manual rule furnish an answer to the charge that the rule was promulgated with utter disregard for the element of criminal intent necessary to establish an offense.

The accused challenges the Manual provision as announcing an unreasonable and unjust law. It undoubtedly follows the more stringent rule and while we need not support the wisdom of legislation we do point out that there is a good basis in reason for the military to adopt a harsh principle. The barracks and ration thieves cause immeasurable damage to military discipline and morale. They have always been punished summarily and severely. This ease furnishes a classic. example of the damages that might flow from a different rule. Imagine the reaction of the enlisted personnel of the company when they know their commander is supplying his home with their rations. If he can appropriate, either permanently or temporarily, they should be entitled to exercise the same privilege. If he can secrete a pound of lard under his field'jacket and take it home, so can they. The end result is that the first man to the- kitchen has the best hpme larder. When caught, they all intend-to return the equivalent, as did this officer, but when ? His statement does not reflect a return of any property and it was made some six weeks after the taking. Be that as it may, the potentiality for harm to the military order from any unauthorized taking of property belonging to the Government or other military person is so great that strict rules and regulations must be enacted to discourage it. It is so easy to take, and then when apprehended to claim an intent to replace, that there is good reason for the rule' that any taking without permission from the owner is unlawful. Certainly a rule to that effect is not contrary to the Code or to common sense. We must, therefore, support the rule as written.

The decision of the board of review is affirmed.