United States v. Plamondon

19 C.M.A. 22, 19 USCMA 22, 41 C.M.R. 22, 1969 CMA LEXIS 676, 1969 WL 6266

• Court: United States Court of Military Appeals
• Decided: October 10, 1969
• Docket: No. 21,569
• Status: Published

Opinions

Opinion of the Court

DARKEN, Judge:

In accordance with their pleas of guilty, these accused were convicted of robbery and conspiracy to commit robbery, in violation of Articles 122 and 81, Uniform Code of Military Justice, 10 USC §§ 922 and 881, respectively. Additionally, Plamondon and Hansen were convicted of carrying concealed weapons, in violation of Article 134, Code, supra, 10 USC § 934. Because all of the offenses charged occurred in Killeen, Texas, we granted review of this case to consider the validity of the court-martial’s jurisdiction over these charges in light of the Supreme Court’s decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).

The record reflects that on December 25, 1967, Thomas G. Lemley was accosted on a street of Killeen and robbed of $5.00 by Coty and Hansen. On December 30, 1967, all these accused met and agreed to look for someone to rob that night. Pursuant to this agreement they stopped, threatened, and robbed James W. Lott, Jr., of a wallet and $9.00. With the aid of a description given by Lott, the three accused were thereafter apprehended by the Killeen police department. At the time of their arrest Plamondon and Hansen had pistols in their possession. The three were identified by Lott as his assailants. Lemley similarly identified Coty and Hansen.

The accompanying Article 32 investigation discloses that both Lemley and Lott were servicemen stationed at Fort Hood, Texas. This fact was apparently not known by the accused.

Theft by one soldier from another is triable by court-martial. O’Callahan v Parker, supra, footnotes 14 and 19; United States v Rego, 19 USCMA 9, 41 CMR 9; United States v Camacho, 19 USCMA 11, 41 CMR 11; United States v Cook, 19 USCMA 13, 41 CMR 13. The rationale of those cases is appropriate and controlling here. We believe, consequently, that there is an adequate basis to sustain court-martial jurisdiction over the crimes of robbery and conspiracy to commit robbery.

On the other hand, carrying concealed weapons in the circumstances present here is not an offense properly chargeable under the Uniform Code of Military Justice. United States v Castro, 18 USCMA 598, 40 CMR 310.

Accordingly, as to Coty the decision of the board of review is affirmed. As to both Plamondon and Hansen, their conviction under Charge III is reversed and the charge and specification are set aside and ordered dismissed. The record of trial is returned to the Judge Advocate General of the Army. The Court of Military Review may reassess the sentence of Plamondon and Hansen on the basis of the remaining findings of guilty.