United States v. Sutton

21 C.M.A. 344, 21 USCMA 344, 45 C.M.R. 118, 1972 CMA LEXIS 774, 1972 WL 14138

• Court: United States Court of Military Appeals
• Decided: April 21, 1972
• Docket: No. 25,182
• Status: Published

Opinion

Opinion of the Court

DARDEN, Chief Judge:

Of the several offenses to which the appellant pleaded guilty, specification 1 of Charge IV alleges a violation of Article 130, Uniform Code of Military Justice, 10 USC § 930, in that appellant Sutton “did, at Katterbach Kaserne, . . . on or about 29 May 1970, unlawfully enter a track vehicle, the property of the military of the United States, with intent to commit a criminal offense, to wit: larceny, therein.”

Article 130, Code, supra, provides:

“Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.”

In United States v Gillin, 8 USCMA 669, 25 CMR 173 (1958), this Court considered and rejected the contention that an automobile could be the object of an unlawful entry. For purposes of Article 130, a track vehicle is indistinguishable from an automobile. Specification 1, Charge IV, therefore, does not state an offense.

The finding of guilty as to specification 1, Charge IV, is set aside and dismissed. The decision of the Court of Military Review is reversed and the record of trial is returned to the Judge Advocate General of the Army. The Court of Military Review may reassess the sentence on the basis of the remaining findings of guilty.

Judges Quinn and Duncan concur.