United States v. Winning

13 C.M.A. 359, 13 USCMA 359, 32 C.M.R. 359, 1962 CMA LEXIS 161, 1962 WL 4502

• Court: United States Court of Military Appeals
• Decided: November 23, 1962
• Docket: No. 16,127
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

While other members of the platoon were absent, the accused stole money from several locker boxes in his squad bay. The unit commander was informed of the thefts, and a list of the serial numbers on the stolen bills was compiled. A “shakedown” search of the squad bay led to discovery of the stolen money in a hole in the underside of the accused’s mattress. On this appeal from his conviction by special court-martial on six specifications of larceny, and another offense, the accused contends the search was illegal. The board of review considered the question, and concluded that the commanding officer authorized the search. The record of trial supports that finding. United States v Harman, 12 USCMA 180, 30 CMR 180; United States v Gebhart, 10 USCMA 606, 28 CMR 172.

Part of a pretrial confession, which was admitted in evidence, refers to an incident which took place when the accused was fourteen years of age. In the reference, the accused said he was “put on probation of some sort” for riding in a car which apparently had been stolen by a friend. Some years later when he applied for enlistment in the Marine Corps, he informed the recruit sergeant he had “got into trouble” ; he was advised not to mention the incident in his application. This part of the confession indicates misconduct unrelated to the offenses charged; and it should not have been admitted into evidence. United States v Pavoni, 5 USCMA 591, 18 CMR 215; see also United States v Roark, 8 USCMA 279, 24 CMR 89. However, we discern no prejudice as to either the findings of guilty or the sentence. As to the former, the evidence of guilt, which is uncontradicted, is compelling. United States v Moreno, 10 USCMA 406, 27 CMR 480; cf. United States v Liscar, 11 USCMA 708, 29 CMR 524. As to the latter, the matter was considered by the supervisory authority. His review was sufficient to eliminate the adverse effect, if any, of the inadmissible evidence. United States v Peters, 8 USCMA 520, 25 CMR 24.

The decision of the board of review is affirmed.

Judge Kilday concurs.