United States v. Wooten

Opinion of the Court

Quinn, Chief Judge:

On the afternoon of May 21, 1961, an alert Texas Highway Patrolman stopped an automobile because it had no Texas safety inspection sticker. Investigation disclosed the car had been taken during the previous night from its owner in New Mexico. Further investigation led to the filing of a number of charges against the accused, including three specifications of larceny of an automobile, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The accused pleaded not guilty to the latter charges but was convicted as charged and sentenced to a bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year.

In this Court the accused challenges the refusal of the law officer to instruct the court-martial that on the evidence it could consider the lesser offense of wrongful appropriation as a reasonable alternative to each of the larceny specifications. Conversely, the Government contends that in each instance the evidence is susceptible only of the conclusion that the accused intended permanently to deprive the true owner of his automobile. As to specification 2, the accused admitted to a police officer that “everyone thought he had stolen” that car, but he insisted he only “had borrowed” it. This circumstance and other inferences that can be drawn from the evidence tend to indicate an intent by the accused to effect a return of the vehicle to the owner. However, the evidence relating to the other takings cannot reasonably be considered as indicating merely an intention to obtain a temporary means of transportation. The second car was also taken from the base without the owner’s permission. It was a new Chevrolet still bearing temporary tags. The accused drove the vehicle until motor trouble, obviously occasioned by misuse, caused it to stop. Thereafter, he sought help in order to continue his journey, but the garage mechanics were unable to repair the damage. When accused was so apprised he was told, according to his written pretrial statement, “that the best thing to do was to call the man I got it from.” Thereupon, the accused turned over the new car warranty which he found in the glove compartment. However, he did not give the garage operator his name or otherwise identify himself.

After leaving the garage, the accused hitchhiked to Deming, New Mexico. Here, he appropriated another car. In it, he and a companion proceeded east into Texas, where he was finally stopped by the Texas Highway Patrolman. Asked about the car, the accused at first lied about the ownership and his destination. The New Mexico license tags had been removed and replaced by *173Texas plates; the original tags were found under the front seat.

The accused testified on the merits in his own behalf. His only claim was that he was “blacked out” during an interlude covering the period in which the three vehicles were taken. He said nothing about his intent in taking the Chevrolet and the New Mexico car. Nor do his statements introduced into evidence at trial indicate that these appropriations were intended to be temporary, rather than permanent. The evidence shows a consistent pattern of false stories as to ownership, and the use of false license plates. It clearly appears the accused was intent upon putting a good deal of distance between himself and the post, from which he had gone absent without authority, after admitting theft of a camera. In the light of this evidence, the law officer was justified in not instructing on wrongful appropriation as a lesser offense as to the last two autos. United States v Brookman, 7 USCMA 729, 23 CMR 193. In the Brookman case, the accused escaped from confinement. He and his companions took a vehicle to facilitate their flight. Rejecting an appellate contention that the evidence required an instruction on the lesser offense of wrongful appropriation, we said:

“The ranch wagon was taken in Quantico, Virginia. It is stating the obvious to say the evidence shows that neither the accused nor any of his companions intended personally to return it to the owner. Can it be said that they expected to have someone else to return it on their behalf? A vehicle can be taken for a limited purpose and thereafter be left at a place different from that of its taking without subjecting the taker to a charge of larceny. The surrounding circumstances, however, must indicate that the taker intends, and could reasonable expect, others to return the vehicle to the owner. See State v Ward, 19 Nev 297, 10 Pac 133. This is not such a case. The ranch wagon was abandoned on the streets of a large city, miles away from the place of its taking, and then only when it ran out of gasoline. The accused and his fellows also left some of their prison garb in the vehicle. This fact emphasizes their complete disinterest in the fate of the vehicle. It is also significant that, although the accused testified at the trial, he did not directly or indirectly say that he intended to return the car to the owner. Instead, he based his defense exclusively on a denial of all responsibility for the taking. In this situation, we hold that the law officer did not err by failing to submit to the court-martial the lesser offense of wrongful appropriation.”

The decision of the board of review as to specification 2, Charge II, is reversed. The record of trial is returned to The Judge Advocate General of the Army for submission to the board of review for reconsideration. In its discretion, the board of review may, as to specification 2, Charge II, approve findings of guilty of the lesser offense of wrongful appropriation, in violation of Article 121, supra, and reassess the sentence or take other action consistent with this opinion.

Judge Kilday concurs.