United States v. Stivers

11 C.M.A. 512, 11 USCMA 512, 29 C.M.R. 328, 1960 CMA LEXIS 279, 1960 WL 4509

• Court: United States Court of Military Appeals
• Decided: June 3, 1960
• Docket: No. 13,932
• Status: Published

Opinions

Opinion of the Court

HomeR FeRGüson, Judge:

The accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for three years, and reduction to the lowest enlisted grade. Approving the findings, the convening authority reduced the sentence to bad-conduct discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement at hard labor for eighteen months. Concluding that a confession obtained in violation of Code, supra, ■ Article 31, 10 USC § 831, had erroneously been admitted in evidence, a divided board of review set aside the findings and ordered a rehearing. The Judge Advocate General of the Navy certified to this Court the question whether the law officer erred in admitting accused’s confession in evidence.

Each member of the board of review wrote a separate exposition of his views in the ease under consideration. The principal opinion of Member O’Bannon and the concurring opinion of Member Cappelmann leave us in doubt concerning whether they determined accused’s confession to be involuntary as a matter of fact or as a matter of law. If their decision was factual, it may not be reviewed in this Court. United States v Wheatley, 10 , 28 CMR 103. If the board determined that involuntariness existed as a matter of law, the propriety of its decision is properly before us. As we are uncertain concerning the basis on which the majority’s conclusion rested, we return the record of trial to The Judge Advocate General of the Navy for reference to the board of review in order that the matter may be clarified. United States v Moreno, 5 USCMA 500, 18 CMR 124; United States v Judd, 10 USCMA 113, 27 CMR 187.

It is so ordered.

Chief Judge Quinn concurs.