United States v. Oakley

Ferguson, Judge

(concurring in part and dissenting in part):

I concur in part and dissent in part.

I agree with my brothers that the proper measure of punishment for the offense of wrongful possession of an armed services identification card, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934, is contained in 18 USC § 701. I am unable to join them in their conclusion that the charges in this case are not multiplicious.

Pursuant to his plea, the accused was found guilty of larceny, in violation of Code, supra, Article 121, 10 USC § 921, and wrongful possession of an armed services identification card, in violation *534of Code, supra, Article 134. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement at hard labor for one year. As a result of the pretrial agreement in the case, the convening authority reduced the confinement portion of the sentence to six months. The board of review mitigated the dishonorable discharge to a bad-conduct discharge, but otherwise approved the sentence. We granted accused’s petition for review on the issues of multiplicity and the maximum limitation of punishment applicable to the offense of wrongful possession.

Stipulated evidence establishes that the accused stole his victim’s wallet on May 11, 1959, together with its contents. The latter included a money order and an armed services identification card. He sold the money order and retained the identification card in his possession until on or about May 29, 1959, at which time he utilized it as a pledge with a Korean prostitute. He was separately charged with larceny of the money order on May 11 and wrongful possession of the identification card on May 28. The law officer advised the members of the court-martial that the offenses were separate for purposes of determining an appropriate sentence.

This Court has repeatedly pointed out that thefts occurring at the same time and place constitute but one larceny. United States v Florence, 1 USCMA 620, 5 CMR 48; United States v Taylor, 6 USCMA 289, 20 CMR 5. We have also adopted the rule that only a single theft is committed when the thief asports one article which contains other items, as in the case of a purse, wallet, or letter. United States v Dicario, 8 USCMA 353, 24 CMR 163. It seems clear, therefore, that this accused, for the theft of the money order and the card, could have been charged with only one larceny. My brothers apparently believe the result should be different when he chose to retain in his possession a particular item of the stolen property. It appears to me that the distinction thus drawn is artificial, for accused’s larceny and wrongful possession of the card occurred at the same time. See United States v Whitesell, 17 CMR 726. Moreover, they involved, the same proof.

In United States v Brown, 8 USCMA 18, 23 CMR 242, and United States v Dicario, supra, we pointed out that offenses are not separate if the same evidence is used to establish guilt of both crimes. In the latter case we noted, over Judge Latimer’s dissent, at page-361:

“. . . In other words, proof of the theft of the contents is sufficient to establish proof of the theft of the letter in which they were contained. When such similarity of proof exists in regard to a single act committed by the accused, the offenses are not. separately punishable.”

Under the law of this Court, it appears clear to me that proof that accused possessed his victim’s identification card on May 29, 1959, or before,, tends to establish he stole the card on May 11, 1959, as well as the wallet and its other contents. United States v Hairston, 9 USCMA 554, 26 CMR 334; United States v Ball, 8 USCMA 25, 23 CMR 249; United States v Moten, 6 USCMA 359, 20 CMR 75. The mere passage of time between the taking of property and its discovery in the possession of the accused does not destroy the inference arising from the latter fact. It merely diminishes its weight. United States v Moten, supra, at page 365. The occasion will, of course, arise when possession is so far distant from the taking that it becomes irrelevant. Here, the elapsed time is not sufficient to destroy the basis for the inference. Indeed, I thought that to be the nub of Judge Latimer’s argument in Moten, supra, for he there states, at page 369:

“. . . It is true enough that the possibilities of an innocent explanation may be increased as time marches on, but to say that 51 days is so long a period of time that, as a matter of law, the property could not possibly be considered as recently stolen is contrary to the opinion of many well-recognized authorities.”

In sum, absent the plea of guilty, the prosecution could have relied upon ac-*535«used’s possession of the identification card to prove his guilt of the larceny. Thus, invocation of the principles enunciated in United States v Brown and United States v Dicario, both supra, is demanded. As was stated in United States v Littlepage, 10 USCMA 245, 27 CMR 319, at page 247:

“Abstract consideration of the elements of the offenses indicates that each requires a finding of fact not required for the other .... However, this Court has reiterated that the fundamental rule is that the accused shall ‘not be twice punished for the same offense.’ United States v Posnick, 8 USCMA 201, 203, 24 CMR 11. In applying that rule we held that when evidence, sufficient for conviction under one charge, will also convict under another, the two offenses are not separately punishable. United States v Modesett, 9 USCMA 152, 25 CMR 414. . . .”

I would reverse the decision of the board of review. In view of my conclusion that the charges are not separately punishable, it follows that the accused agreed to plead guilty in return for reduction of the sentence to the legally permissible maximum. Such an agreement is unconscionable, and I, accordingly, would direct a rehearing.