United States v. Moreno

5 C.M.A. 500, 5 USCMA 500, 18 C.M.R. 124, 1955 CMA LEXIS 429, 1955 WL 3294

• Court: United States Court of Military Appeals
• Decided: March 4, 1955
• Docket: No. 5252
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused was convicted for involuntary manslaughter in violation of Article 119, Uniform Code of Military Justice, 50 USC § 713. Oh appeal, a board of review set aside the conviction and dismissed the charge because it believed the evidence insufficient to support the findings of guilt. The Judge Advocate General of the Navy thereupon asked this Court to review the correctness of the board of review’s determination.

Subsequent to its filing, the accused moved to dismiss the certificate for review on the ground that the decision of the board of review was based upon findings of fact, and it, therefore, raised no matters of law for consideration by this Court. The motion was denied without prejudice.

After careful consideration of the written opinion of the board of review, we have substantial doubt as to the actual basis for its decision. We cannot arbitrarily resolve that doubt. The board of review’s fact-finding power is plenary. If the board of review’s decision is rooted solely in findings of fact, and those findings are supported by substantial evidence, there is no basis for further review in this Court. United States v. Hernandez, 4 USCMA 465, 16 CMR 39; United States v. Sell, 3 USCMA 202, 11 CMR 202. Consequently, we return the case to the board of review for clarification of its opinion.

Judge BROSMAN concurs.