United States v. Whitrock

8 C.M.A. 185, 8 USCMA 185, 23 C.M.R. 409, 1957 CMA LEXIS 432, 1957 WL 4507

• Court: United States Court of Military Appeals
• Decided: July 26, 1957
• Docket: No. 9630
• Status: Published

Opinion

Opinion of the Court

GEORGE W. LatimeR, Judge:

The accused was convicted by a general court-martial of a number of violations of the Uniform Code of Military Justice. The only one of importance to this decision is the transgression of Article 122, which proscribes robbery. The sentence imposed was confinement at hard labor for five years, total forfeitures, and a dishonorable discharge. The convening authority reduced the confinement to four years and otherwise approved the sentence. The board of review affirmed.

This is a companion case to United States v Smith, 8 USCMA 178, 23 CMR 402, decided this day, in that Whitrock was involved with Smith in stealing a pistol from a guard by means of force and violence. The two boards of review reached diametrically opposite results, but the question certified by The Judge Advocate General of the Navy is identical with that certified to this Court in the Smith case. It concerns the convening authority’s directive to trial counsel to amend a charge and-specification of larceny to robbery so as to have the charge conform with evidence developed at the pretrial hearing.

The determination we make in the Smith case is fully dispositive of the question certified here. Accordingly, the question is answered in the negative, and the decision of the board of review in this case is affirmed.

Chief Judge Quinn concurs. Judge FERGUSON concurs in the result.