Section 2 of the Act of 17 July 1953 (67 Stat 178, 36 USC 17a), authorizes the furnishing of utilities at government expense to Red Cross personnel occupying government-owned quarters only under circumstances where civilian employees occupying government-owned quarters are furnished utilities at government expense. Accordingly, after 17 July 1953 Red Cross personnel occupying government quarters are indebted to the United States for the reasonable value of utilities furnished unless the circumstances are such that civilian employees occupying government-owned quarters are furnished utilties at government expense. There is no authority to cancel or waive this indebtedness. JAGA 1954/7086. 10 September 1954.

IV. SALE, TRANSFER, OR OTHER DISPOSITION;
LEASES AND RENTALS

§ 51. In General

Lands in the Territory of Hawaii which were not ceded to the United States by the Republic of Hawaii under the joint resolution of annexation of 7 July 1898, but which were acquired by the United States in exchange for ceded lands under authority of the Act of 31 January 1922 (42 Stat 360), may be restored to the Territory by the President pursuant to sec 91 of the Organic Act of Hawaii, as amended (48 USC 511). (Note: The effect of this opinion is to overrule CSJAGR 1949/1136, 10 Feb 1949, 8 Bull. JAG 38, followed in JAGR 1952/9414, 11 Dec 1952.) JAGR 1953/1939. 5 March 1953.

§ 47. Admissibility, Competency, and Relevancy.

2. Weight and Sufficiency; Presumptions and Inferences.
55. Larceny.

§ 57. Wrongful Appropriation.

$ 63. Possession of Stolen or Missing Property.

§ 67. Participation in Offense.

I. IN GENERAL

§ 1. Generally

§ 1.9. Single or separate larcenies.

Sufficiency of evidence to establish separate larcenies covered by a single intent, see United States v. Stribling, infra § 55.3.

II. NATURE AND ELEMENTS OF OFFENSES

§ 15.1. Generally.

§ 15. In General

The accused was convicted of wrongfully, unlawfully and dishonorably selling an automobile without disclosing that a part of the purchase price remained unpaid. The specification alleged that, having entered into a conditional sale contract with a named motor company, under the terms of which the unpaid balance of the purchase price of a certain automobile was to be paid in monthly installments, and with full knowledge that a balance remained unpaid, the accused did wrongfully, unlawfully and dishonorably sell the automobile to another named motor company without disclosing a part of the purchase price remained unpaid. Held: The specification does not allege an embezzlement type of offense under UCMJ, Art 121(a),

predicated upon the accused's obligations toward the conditional vendor since the relationship between a conditional vendor and the conditional vendee does not constitute a fiduciary relationship and a fiduciary relationship is an essential element of embezzlement. (Citing U. S. v. Buck (No. 2330), 3 USCMA 341, 12 CMR 97; MCM, 1928, par 149h; MCM, 1949, par 180; ACM 7911, Chapman, 15 CMR 755, 758; Wharton's Criminal Law, Vol 2, 12th edition, sec 1258 and 1305; Settles v. State, 92 Ark 202, 122 SW 500; Krause v. Commonwealth, 93 Pa 418.) Nor does the specification allege a false pretense type of larceny predicated upon the accused obtaining something of value from the third party purchaser since it fails to allege, either expressly or by implication, an obtaining of something of value by the accused from the third party purchaser. Additionally, the specification fails to allege expressly or by implication that the third party purchaser relied in any degree on any false pretenses made to him. (Citing MCM, 1951, par 200a.) However, since the specification alleged the accused's conduct to have occurred in civilian communities and to have been incident to a private business transaction between the accused and civilians, his conduct is within that category of the offense denounced in UCMJ, Art 134, as conduct of a nature to bring discredit upon the armed forces. (Citing MCM, 1951, par 213b; U. S. v. Arnovits (No. 1434), 3 USCMA 538, 13 CMR 94; ACM 6485, Johnson, 10 CMR 895; ACM-S 1768, Brewer, 1 CMR 872; ACM 4821, Friend, 5 CMR 638; ACM 8913, Torbett, 17 CMR 650; ACM 8037, Freeman, 15 CMR 639; Smith v. Whitney, 116 US 167, 29 L ed 601, 6 S Ct 570 and other cases.) Also, recognition of the specification as alleging a violation of UCMJ, Art 134, is not precluded on the ground that UCMJ, Art 121, covers the field of military law as to offenses involving wrongful conversion and that essential elements cannot be eliminated from offenses covered by the articles of the Code and the remaining elements be recognized as constituting an offense under Art 134. UCMJ, Art 121, does not pre-empt the field in military law so as to preclude recognition as an offense under Art 134 of conduct involving a false pretense, conduct involving wrongful dealing with the property of another, or wrongful or dishonorable conduct with respect to one's pecuniary obligations or business dealings in the civilian community. (Citing U. S. v. Norris (No. 1756), 2 USCMA 236, 8 CMR 36; U. S. v. Johnson (No. 2097), 3 USCMA 174, 11 CMR 174; U. S. v. Deller (No. 1859), 3 USCMA 409, 12 CMR 165; U. S. v. Rios (No. 2488), 4 USCMA 383, 15 CMR 383; U. S. v. Holiday (No. 3659), 4 USCMA 454, 16 CMR 28; ACM 6267, Laird, 8 CMR 806; U. S. v. Arnovits (No. 1434), 3 USCMA 538, 13 CMR 94; U. S. v. Herndon (No. 570), 1 USCMA 461, 4 CMR 53 and other cases.) ACM 9763, Brown (1955) 18 CMR 709.

[See 18 Am Jur, Embezzlement § 47 and 22 Am Jur False Pretenses § 98.]

§ 17. Intent

§ 17.9. Intent to return or replace property, generally.

The accused was charged with larceny and found guilty of the lesser included offense of wrongful appropriation. The evidence

showed that he sent money orders making restitution for two worthless checks: Held: Since findings of wrongful appropriation must be based on evidence that the accused intended to return or did return the identical moneys taken, the evidence herein proved larceny not wrongful appropriation. However, the accused is in no position to complain since he was found guilty of the lesser offense while the evidence clearly supports the greater. (Citing U. S. v. Krawczyk (No. 3592), 4 USCMA 255, 15 CMR 255; cf. U. S. v. Bartholomew (No. 166), 1 USCMA 307, 3 CMR 41.) NCM 376, Watson (1954) 18 CMR

391.

Necessity that intent to return property taken be an intent to return specific property in order to reduce larceny to wrongful appropriation, see CGCMS 20083, Spencer, infra § 55.1.

§ 19. Taking, Obtaining, or Withholding

§ 19.1. Generally.

In order for the offense of obtaining property by false pretenses to arise, the property concerned must actually have been obtained, the offense being complete when, and only when, the property is obtained after the false pretense has been made. In order for such an obtaining to arise, the accused must acquire at lease a voidable title to the property, that is, the owner must intend to invest him with the title, as distinguished from the mere custody or possession of the property. (Citing 35 CJS, False Pretenses § 24.) ACM 9032, Baldwin (1954) 17 CMR 572. For facts of case, see WORTH CHECKS § 15.9.

[See 22 Am Jur, False Pretenses $ 30.]

§ 21. Nonconsent of Owner to Taking, Etc.

§ 21.1. Generally.

The evidence showed that on three or four occasions the accused asked a certain enlisted man to get a pistol for him from the armory so that the accused could sell it. The enlisted man reported this to the military police, who furnished him with a government pistol and instructed him to deliver it to the accused. He made the delivery to the accused and the military police instantly apprehended the accused. Held: The military police and the enlisted man who gave the accused the pistol lacked the power to surrender lawful possession of the pistol to the accused. The government was not bound by their acts, hence, the government did not consent to the taking of the pistol by the accused and, accordingly, the taking was wrongful. (Citing

U. S. v.

Buck (No. 2330), 3 USCMA 341, 12 CMR 97.) Held also: The defense of entrapment is not available to the accused because setting the stage to discover the guilt of one who has conceived his own wrongful plan does not violate the rule against entrapment. (Citing U. S. v. Jewson (No. 532), 1 USCMA 652, 5 CMR 80, 84.) NCM 359, Tamas, 17 CMR 502.

§ 23. False Pretenses

§ 23.11. Credulity or negligence of victim; failure to investigate. See ACM 9370, Rogers, infra § 55.5.

§ 27. Value of Property

§ 27.1. Generally. The accused was charged with larceny of a watch and a radio. Each was alleged to be of a value of fifty dollars or less and more than twenty dollars. With respect to the watch a prosecution witness who was engaged primarily in jewelry repair testified it was worth about $65.00. However, the witness admitted the last time he had sold a watch of the same type was about three years ago and that he had some doubt that the particular watch had any set value. A defense witness who operated several watch repair shops testified that in his opinion the watch was worth less than $10.00 and he estimated that he had sold about six similar watches within the past year. With respect to the radio the owner testified he paid $44.50 for it about a year before its theft and a prosecution witness who owned the store where the accused sold the radio testified it was worth about $20.00, perhaps less. Held: The above evidence does not establish beyond a reasonable doubt that the legitimate market value of the property alleged to have been stolen was more than $20.00. ACM 10104, Masznik (1955), 18 CMR 894. [See 32 Am Jur, Larceny § 4.]

§ 31.1. Generally.

III. PROSECUTION

A. IN GENERAL

§ 31. Charges and Specifications

The accused was charged with larceny under a specification alleging that he did, at Travis Air Force Base, California, during September 1953, steal a portion of a turkey of some value less than $20, the property of the United States. The evidence in support of the above specification showed that the accused requested a frozen turkey be cut in half for him. This was done by the commissary butcher who wrapped one-half and wrote a price thereon, and placed it in the refrigerator. The remaining half was placed in the storage deep-freeze. When the accused called for the turkey he was given the wrapped portion and he gave the clerk a $10 bill. When he received his change the accused looked at it with a confused manner, counted it over two or three times, looked around hesitatingly, and then departed. Later that day he instructed the clerk to wrap the remaining half of the turkey and place it in his box in the deep-freeze. This half was subsequently removed by the accused. The testimony given by the accused was substantially in accord with the above except that he stated he had ordered a whole turkey and thought he had paid for the whole turkey at the time he received the first portion. No instructions were given on the defense of mistake.