United States v. Skelton

10 C.M.A. 622, 10 USCMA 622, 28 C.M.R. 188, 1959 CMA LEXIS 229, 1959 WL 3437

• Court: United States Court of Military Appeals
• Decided: August 28, 1959
• Docket: No. 12,830
• Status: Published

Opinions

Opinion of the Court

Kobert E. Quinn, Chief Judge:

The accused pleaded guilty to ten specifications of forgery, in violation of Article 123, and unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC §§ 923 and 886, respectively. He was also found guilty of seven specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to a dishonorable discharge, total forfeitures and confinement at hard labor for ten years. The convening authority approved the sentence except that he reduced the period of confinement to two years. On review, a board of review directed a rehearing on the sentence because of error in the law officer's instructions on matters that the court-martial could consider. At the rehearing, the court adjudged a sentence which included confinement at hard labor for five years. With some modification of the period of confinement, intermediate appellate authorities affirmed. The case is before us on two issues.

First, we are asked to review the effect of an instruction by the law officer that prima facie evi-dence of a fact “is sufficient to establish the fact, unless it is rebutted.” We recently considered the same instruction in United States v Simpson, 10 USCMA 543, 28 CMR 109. We there concluded that taking into consideration the whole instruction, the accused was not prejudiced. We reach the same conclusion here.

For his scond claim of error the accused contends he was prejudiced by an instruction that the maxi-mum permissible punishment included confinement at hard labor for ten years which was “the sentence imposed” at the first trial. In a similar situation, we held that the maximum sentence at the rehearing is limited to the sentence as reduced on review unless the reviewing authority predicated the reduction “expressly and solely . . . on an erroneous conclusion of law.” United States v Jones, 10 USCMA 532, 28 CMR 98. That case is controlling here.

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