United States v. Krull

Brosman, Judge

(concurring in the result) :

I fully concur in the result reached in this case by Judge Latimer. However, I would prefer to bottom our necessary action solely and only on the notion that there was no inconsistency between the pleas of the accused, on the one hand, and his statement in extenuation, on the other — and in this respect I find myself in flat disagreement with the Chief Judge. • If I am correct in this view, it follows that there was no shadow of necessity for the substitution of pleas of not guilty in the accused’s behalf,, and that the findings and sentence are supported by the pleas of guilty entered by him following arraignment.

Lieutenant Krull was here tried under four specifications, two alleging larceny and two wrongful appropriation — ■ the latter alleged as' conduct unbecoming an officer arid a gentleman, in violation of Article 133. It is clear beyond peradventure that there was no inconsistency between his story in riiitigation and his plea of' guilty to wrongful appropriation. Assuming the complete accuracy of his extenuative explanation, he manifestly deprived the Government of its property temporarily at the very least;. he certainly appropriated this property to his own use; and he must necessarily have intended to accomplish both of these purposes. The larceny specifications present a problem of somewhat greater complexity. Even *134here, however, I am sure that, under current military law, the officer’s post-findings account of the transactions, of itself, rendered him guilty of the crimes alleged — and thus that no inconsistency resulted therefrom.

The Manual for Courts-Martial, United States, 1951, paragraph 200a, contains the following language:

“An intention to pay for the property stolen or otherwise to replace it with an equivalent is not a defense, even though such an intention existed at the time of the theft, and, once a larceny is committed, a return of the property or payment for it is no defense.”

Under this language it must be obvious that the accused, by his own story, furnished a complete basis for his conviction. of the larcenies alleged — and quite apart from his earlier pleas of guilty. He admitted taking wrongfully the Government property specified, although he professed an intention — existing at the time of the misappropriation — to replace it in kind. Pretermitting any question of exact equivalence, it is apparent from the quoted Manual language that these intentional professions constitute no defense. It is also apparent that this language must supply our answer in the present case — unless somehow it is in conflict with the provisions of the Uniform Code. I cannot see that it is.

In United States v. Aldridge (No. 686), 2 US CM A 330, 8 CMR 130, decided March 24, 1953, we dealt at length with the meaning and objectives of Article 121, proscribing larceny and defining the offense. There we concluded that it was the manifest intent of .Congress to create a single inclusive offense of larceny, and. to abolish technical distinctions theretofore existing among the earlier crimes of larceny, embezzlement and taking under false pretenses. We also concluded that the gist of the statutory offense- — indeed that which binds the older offenses together in the new'' conception — is found in the requirement of an intent permanently to deprive the owner of his property. Now the only theory under which I might come to believe that conflict exists between the Code and the Manual here involves the notion that the common — or indeed the Federal — law of the subject is recognizably at variance with the Manual rule, and that this divergent view was adopted elliptieally by Congress when it enacted Article 121. And I just do not believe these things to be true. While there is some slight civilian authority for the position that the presence of a coexisting intention to return a chattel in kind is fatal to guilt of larceny, this view is not well-settled, and has been questioned by sound scholars in terms of both history and analysis. Actually the general decay of the doctrine of lucri causa, and its clear repudiation in Article 121, argues in a contrary direction so far as military law is concerned. And this is also true of the civilian cases involving embezzlement — now a part of the codal crime of larceny. State v. Pratt, 114 Kan 660, 220 P 505; Morrow v. Commonwealth, 157 Ky 486, 163 SW 452; see Fowler v. Wallace, 131 Ind 347, 31 NE 53. For a statement of the historic common law position, see Kenny, Outlines of Criminal Law (1952 ed.), 243.

We have said many times that — in the absence of conflict — the . Code and the Manual share an identical authoritative position. I cannot possibly find conflict here. It follows that the Manual language controls in the present problem, and that an intention to return in kind is wholly irrelevant to any consideration of guilt of larceny.. It is, of course, unnecessary for me to express any sort of personal opinion of the Manual view in terms of function — that is, any choice as to the rule I would adopt as a law-maker.