United States v. Morse

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused stands convicted of twelve specifications which are laid under three separate Articles of the Uniform Code of Military Justice. He contends that at the trial a number of errors were committed to his substantial prejudice.

After his ice-cream vending machine had been broken into and the coins removed on two occasions, the operator reported the matter to the Criminal Investigation Division. Sergeant Wei-senberg was assigned to the case. The machine was checked for fingerprints but none of a suitable nature were found. To trap the thief in the event he returned, the money changer and twenty coins inserted into it were coated with fluorescent paste and a powder which leaves a blue stain upon contact with the hands or clothing. *802Sometime during the next three days the machine was again rifled. The agent reasoned that the thefts might have taken place during either the day or night. He decided he would start his investigation with the guards who were assigned to patrol the area at night. He went to Battalion Headquarters and talked to the Adjutant. The latter provided him with the names of nine persons who had performed guard duty in the area during the preceding three-day period. The Adjutant also telephoned the two units to which the men were assigned and advised them that Sergeant Weisenberg was coming down to examine the men and their clothing. The First Sergeant of the accused’s organization was informed that certain men were to bring “their clothing, field jackets and ODs” to the orderly room. The accused was one of the men. Consequently, the sergeant directed the accused to “bring his clothes down to the orderly room.”

When the accused reported to the orderly room, he was taken into the first sergeant’s office. Sergeant Weisen-berg identified himself to the accused, and looked at the accused’s hands in the sunlight coming through the window. He found what appeared to him to be blue stains. He also examined, under an ultraviolet light, leather gloves that the accused had with him and he found what appeared to be “traces of fluorescent paste.” Sergeant Weisenberg then read and explained Article 31 to the accused and advised him that he was suspected of larceny and damage to private property. The accused made an oral statement. Before evidence of the contents of the statement was admitted, defense counsel objected on the ground that the statement was the product of incriminative evidence which the accused had been improperly compelled to produce. The objection was overruled and the statement was admitted. Later the accused was questioned again. He and Sergeant Wei-senberg “again went through Article 31.” The accused made a further oral statement which was reduced to writing. Defense counsel objected to the admission of this statement on the ground that it was “induced” by the results of an illegal search and seizure. This objection was also overruled. A third statement was also made by the accused. This statement was made before the second had been transcribed. The accused was questioned in connection with the report of the rifling of a pinball machine in the Battalion Lounge. The accused was informed that he was also suspected of these offenses, and he was again warned under Article 31. He made a separate oral statement which was put into writing and signed by him. Defense counsel objected to this statement partly on the ground that it was “still tainted by being close in time to matters previously objected to” and partly on the ground that some of the contents were inadmissible because of the lack of a showing of corpus delicti. The first part of the objection was overruled, but the latter was sustained and a portion of the statement was blocked out before it was admitted into evidence.

The defense opened its case with testimony by First Sergeant Duda. He testified that on March 11, 1957, he was told to have the accused report to the orderly room with the clothing that he wore when on guard duty. At the completion of this testimony, defense counsel moved to strike from the evidence the accused’s statements because they were obtained “as a result of forcing the accused to produce incriminating evidence prior to the statements being made.” The motion was denied.

The correctness of the law officer’s rulings admitting the pretrial statements in evidence is attacked by the accused. In substance, he argues that the statements were the result of evidence illegally obtained. The evidence which is said to be illegal is that relating to the examination of the accused’s hands and to the order to produce the clothing he wore during the time he was on guard duty.

There is no error in the hand examination. Visual inspection of the person of an accused does not violate any constitutional right or any provision of Article 31 of the Uniform Code of Mil*803itary Justice. Such inspection does not require the accused to say anything or to produce evidence against himself. Cf. United States v Jordan, 7 USCMA 452, 22 CMR 242; United States v Musguire, 9 USCMA 67, 25 CMR 329. As the District Court pointed out in United States v Strickland, 62 F Supp 468, 471 (WD SC) (1945) : “To observe that which is open and patent in either sunlight or artificial light is not a search.” Nor, we may add, is it a statement within the meaning of Article 31.

The visual inspection of the glove also did not violate any of the accused’s rights. Clothing worn by an accused at the time he is questioned in connection with an offense is certainly open to view. Nothing in the evidence shows that the glove was - part of the clothing which the accused was directed to bring with him to the orderly room. The sergeant’s testimony was limited to “field jackets and ODs.” Consequently, we need not consider whether the evidence would have been admissible as part of a proper search and seizure, as contended by the Government, or whether it is of the class of evidence which cannot be subject to seizure under a search warrant. Cf. Harris v United States, 331 US 145, 91 L ed 1399, 67 S Ct 1098 (1947); United States v Guido, 251 F2d 1 (CA7th Cir) (1958). It does not constitute an unlawful search to look at outer garments worn by an accused; nor does it trespass upon his privacy to view such outer clothing with the aid of a particular kind of light. The evidence of the glove inspection, therefore, was properly admitted and there is no basis for the claim of taint in the latter statement. See United States v Bennett, 7 USCMA 97, 21 CMR 223.

In a further attack on the validity of the findings of guilty, the accused contends there is insufficient independent evidence to corroborate his confession in regard to the specifications of Charge I. These allege that on separate occasions the accused was derelict in the performance of his duty in that, while assigned as a guard, instead of guarding the property entrusted to him, he broke into it and stole its contents. Evidence was admitted to show the vending machine was broken into between specified days. It was also shown the accused performed duty as a guard during those periods, in an area in which the machines were located. In our opinion, this constitutes sufficient independent evidence- to corroborate the accused’s confession and to support the findings of guilty. United States v Evans, 1 USCMA 207, 2 CMR 113.

Finally, the accused contends he cannot be separately punished for the offenses charged. As previously pointed out, the three specifications of Charge I allege dereliction of duty by breaking into the ice-cream vending machine on three separate occasions and stealing the coins therefrom in violation of Article 109. Three of the specifications of Charge II allege that, on the same respective dates as the dereliction of duty offenses, the accused wrongfully damaged the same vending machine by prying it open with an iron bar. Three of the specifications of Charge III allege a theft of coins from the same machine but only two occasions correspond in date with the incidents alleged in Charges I and II. In addition, another specification of Charge II alleges damage to the ice-cream machine and one under Charge III alleges larceny of the coins from the machine on the same date. The accused contends he is punishable only on the basis of four counts of petty larceny and one of damage to the property.

Insofar as the damage and larceny specifications are concerned, the offenses are separate and distinct. The evidence sufficient to support the findings of larceny from the machine does not also show the nature and extent of the damage. See Manual for Courts-Martial, United States, 1951, paragraph 1886, page 344. And, conversely, proof of damage to the machine does not establish that the money was taken from it. Consequently, these offenses are separately punishable. Cf. United States v Brown, 8 USCMA 18, 23 CMR 242.

*804A different situation exists with regard to the dereliction offenses. Here, the specifications charge that each act of dereliction consisted of damage to, and theft from, the machine. The allegations make larceny and damage integral parts of the offenses charged. See United States v McVey, 4 USCMA 167, 15 CMR 167. Under the circumstances, proof sufficient to establish the dereliction in each instance necessarily proves the other offenses. These offenses, therefore, are not separately punishable. United States v Brown, supra; United States v Morgan, 8 USCMA 659, 25 CMR 163; United States v Modesett, 9 USCMA 152, 25 CMR 414. Cf. Gore v United States, 357 US 386, 78 S Ct 1280, 2 Led 2d 1405 (1958).

The decision of the board of review is affirmed as to the findings of guilty but reversed as to the sentence. The record of trial is returned to The Judge Advocate General of the Army for reference to the board of review for reassessment of the sentence.