United States v. Tamas

6 C.M.A. 502, 6 USCMA 502, 20 C.M.R. 218, 1955 CMA LEXIS 260, 1955 WL 3556
CourtUnited States Court of Military Appeals
DecidedNovember 18, 1955
DocketNo. 6596
StatusPublished
Cited by29 cases

This text of 6 C.M.A. 502 (United States v. Tamas) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tamas, 6 C.M.A. 502, 6 USCMA 502, 20 C.M.R. 218, 1955 CMA LEXIS 260, 1955 WL 3556 (cma 1955).

Opinions

Opinion of the Court

GEORGE W. Latimer, Judge:

I

Despite his plea to the contrary, the accused was convicted by a general court-martial of the wrongful sale of Government property, in violation of Article 108, Uniform Code of Military Justice, 50 USC § 702; two larcenies, in violation of Article 121, Uniform Code of Military Justice, 50 USC § 715; accessory after the fact (of a larceny), in violation of Article 78, Uniform Code of Military Justice, 50 USC § 672; and wrongful possession of a false ration book with intent to deceive, in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728. He was sentenced to dishonorable discharge, total forfeitures, and confinement for five years, all of which the convening authority approved. The board of review [506]*506affirmed all findings except the one which found the accused guilty of being an accessory after the fact. As to that finding the board affirmed only so much as found the accused guilty of assisting a thief by concealing what the accused knew to be stolen property, in violation of Article 134 of the Code. It affirmed the sentence as imposed. We granted the accused’s petition for review to consider several issues, which may be summarized as follows:

1. Whether the evidence is sufficient as to the offense of larceny of a pistol (Specification 2, Charge II).
2. Whether the specification which purported to allege the offense of accessory after the fact was sufficient to allege an offense, and if so, the maximum penalty for such a dereliction.
3. Whether the evidence is sufficient to show an intent to deceive with respect to the wrongful possession by the accused of a false ration book.
4. Whether the sentence is within the maximum limits imposed by law.

II

Only those facts which are necessary to a proper understanding of the issues considered by us are set forth herein. On or about December 2, 1953, the accused and Private First Class Thomas Jones, who had known the accused for over a year, went to the rear of their regimental mess hall at Middle Camp Fuji, Japan. There they had secreted a large package, wrapped in brown paper, which contained twenty pounds of coffee worth less than $20.00. Through the use of a ruse, the accused succeeded in taking this package past the gate guard, and thereafter he sold the coffee to a Japanese civilian in Gotemba, Japan. The coffee was the property of the United States.

On several occasions during the period December 1, 1953, to December 4, 1953, the accused asked Jones to obtain a caliber .45 service pistol for him to sell to a Japanese civilian. Jones was reluctant to obtain the weapon but eventually he agreed to consider the proposition. His assigned place of duty was in the company armory, the pistols were normally kept there, and the accused was informed that if a pistol was to be obtained, it had to come from that source of supply.

Unfortunately for the accused, Jones had notified the Marine Corps authorities about the accused’s desires. They instructed him that if the subject was again broached, he was to comply with accused’s request. In accordance with the directions given him, when Jones was next importuned to deliver a pistol, he agreed to do so. On December 5, 1954, he obtained a caliber .45 pistol from Sergeant Grantham of the Provost Marshal’s Office and transported it to a local bar in Gotemba. Upon meeting the accused, the twosome — pursuant to a prior agreement — retreated to the men’s lounge, where Jones handed over the pistol. The accused took it, secreted it on his person, and immediately thereafter was apprehended by Sergeant Grantham, who chose that moment to enter the room.

During the early morning hours of February 12, 1954, the pawnshop of Masayoshi Tomura, located in Shizuoka, Japan, was burglarized. The accused came under suspicion concerning this offense, and the storage places to which he had access were searched. A large number of watches, cameras, and items of jewelry were found. The accused subsequently admitted that he had received the valuables from a friend of his; that he knew they were stolen property; and that he had agreed to hide them for the thief. Upon finding the hiding place of the stolen goods, the investigators placed the accused under arrest and searched him. Two ration books for cigarettes and beer were found on his person, whereas only one was authorized. When asked about this, the accused admitted that one book bore a forged signature of authorization.

Ill

. The first argument made concerning the offense of larceny of the pistol questions the sufficiency of the evidence to show a wrongful taking. Appellate defense counsel argued, both ably and sin[507]*507cerely, that the facts do not establish the offense charged because the accused acquired possession of the pistol from Jones with the consent of both Jones and local military authorities. Thus, counsel assert that no matter how intent upon committing larceny the accused might have been, his effort was bound to fail, for his acceptance of the pistol was not a trespass. At this point, it should be made clear that there is no claim of entrapment made by defense counsel, nor could such a claim be made, for the evidence establishes that the criminal plan originated in the mind of the accused and it was carried out at his insistence.

It is hornbook law that no larceny is committed in a situation where an owner of property, or a decoy employed by him in an attempt to ensnare the thief, so participates in the commission of the act as to prevent the accused from doing everything necessary to commit the crime. It is vital to the commission of an offense that an accused participate directly in enough of the transaction so that the acts with which he is chargeable personally are sufficient to make out a complete offense. State v Neely, 90 Mont 199, 300 Pac 561 (1931); Annotation, 86 ALR 263, 270.

In United States v Buck, 3 USCMA 341, 12 CMR 97, the accused asked one Hatley, a supply sergeant, to obtain a large quantity of chevrons for the accused, and promised to pay Hatley |50.00 for his assistance. Hatley delayed the giving of his answer for a day, and meanwhile secretly contacted his superiors, who advised him to join in the scheme. Hatley then informed the accused that the chevrons were ready, and placed a large quantity of them near the entrance to the supply room. The accused came to the supply room, placed the chevrons in his car, and paid Hatley the sum agreed upon. In our opinion, we adverted to the principle of the Neely case, supra, carefully distinguished it from entrapment, and said concerning it:

“In the second classification, above referred to, are those eases involving offenses requiring that the proscribed act be ‘against the will’ of the party injured. Hence, a prosecution for rape cannot be maintained when the victim invited the act. Commonwealth v. McDonald, 110 Mass 405; Brown v. People, 36 Mich 203; State v. Burgdon, 53 Mo 65. The same result obtains when an individual procures another to rob him. In such case, he is held to have consented to the assault necessarily involved in robbery, thus negativing one of its essential elements. Long v. State, 12 Ga 293. See also note of Francis Wharton to Bates v. United States, 10 F 92, 97-99 (CC Ill).

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Bluebook (online)
6 C.M.A. 502, 6 USCMA 502, 20 C.M.R. 218, 1955 CMA LEXIS 260, 1955 WL 3556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tamas-cma-1955.