I. IN GENERAL.

ROBBERY

§ 9. Included Offenses.

III. PROSECUTION.

§ 33. Charges and Specifications.

§ 43. Evidence, Weight and Sufficiency.

§ 49. Findings.

§ 9.1. Generally.

I. IN GENERAL

§ 9. Included Offenses

The accused was charged with robbery and found not guilty thereof but guilty of wrongful appropriation and assault consummated by battery. The sentence imposed was the aggregate of the maximum punishment for each offense found. Held: The findings and sentence are legally correct since UCMJ, Art 79, providing that an accused may be found guilty of "an offense" necessarily included in the offense charged does not restrict the court to the finding of a single lesser included offense where offenses found are unrelated to one another and the total punishment is not greater than that provided for the offense charged. CM 373066, Calhoun and Martinez (1954) 16 CMR 311.

§ 9.5. Wrongful appropriation or wrongful taking.

The accused was charged with robbery. He pleaded guilty to the lesser included offense of assault and battery and was found guilty of that offense and wrongful appropriation. Held: Robbery is a compound offense composed of taking property from, or in the presence of, a person, accomplished by the use of force, violence, or fear. For one to perpetrate that crime by force or violence, he must commit two lesser offenses, neither of which is similar to, included in, nor related to, the other. The one offense, larceny, is a crime against property; the other crime, assault, is a crime against the person. When committed concurrently, they make up the greater crime of robbery; and, under usual circumstances, if the greater is alleged, the lesser two will be encompassed within the pleadings. UCMJ, Art 79, which provides that an accused may be found guilty of an offense necessarily included in the offense charged was intended to permit a court-martial to find an accused guilty of any offense included in all of the offenses charged, whether or not they are separately stated. The accused was not prejudiced by being found guilty of the two lesser included offenses of the crime charged even though they were merged in one specification and not separately alleged. Generally, a single specification should not allege more than one offense and, under ordinary circumstances, if two offenses are set out, the pleading is duplicitous. However, such is not the case when a compound offense such as robbery is alleged since where two lesser offenses add up to a single greater

offense the included offenses will be easily identifiable and there will be no hindrance in preparation for trial because the included offenses are not set out in separate specification. The two lesser offenses were not merged with each other since assault and battery is not included in larceny, and the converse is true. Furthermore, the offenses are separate and distinct. While both crimes arise out of a single transaction, the elements of each are so different from the other that the law permits punishing both without violating the privilege against being twice placed in jeopardy for the same offense. United States v. Calhoun (No. 5390), 5 USCMA 428, 18 CMR 52.

§ 9.7. Assault.

See United States v. Calhoun, supra § 9.5.

§ 9.11. Receiving stolen property; accessory after the fact. Accessoryship after the fact and receiving stolen property as not lesser included offenses, see ACM 8810, Burke, ACCY & PRIN § 5.1.

III. PROSECUTION

§ 33. Charges and Specifications

§ 33.9. Taking from person or presence of victim. [See 46 Am Jur, Robbery $ 32.]

The accused was found guilty of robbery under a specification which alleged that he did, at a named place, on or about a certain date, by means of force and violence, steal from a named person, against his will, a certain sum of money and a wristwatch of a specified value. In his instructions the law officer advised the court that the offense of larceny was an integral part of the offense of robbery charged and he then gave the elements of larceny. Held: The specification is insufficient to allege the offense of robbery since it fails to include the allegation that the accused took anything from the person or presence of the victim. (Citing U. S. v. Rios (No. 2488), 4 USCMA 203, 15 CMR 203.) However, the instruction given was sufficient to support a finding of guilty of larceny as a lesser included offense of the specification as pleaded. NCM 336, Butler (1954) 16 CMR 419.

The accused was convicted of robbery under a specification alleging that he did, at a certain place and on a specified date, by means of force and violence and putting her in fear, steal from a certain person, against her will, a sum of money. Held: The specification is insufficient in that it fails to allege the stealing was from the person or presence of the victim. The allegation that the stealing was accomplished by means of "force and violence" does not supply either directly or by implication the missing requirement. (Citing U. S. v. Rios (No. 2488), 4 USCMA 203, 15 CMR 203.)

Held also: Although the evidence establishes the accused's guilt of robbery, in view of the insufficiency of the specification to allege that offense, the findings of guilty cannot be affirmed. However, the

findings of guilty of the offense of larceny which was adequately charged in the specification may be affirmed. (Citing U. S. v. Rios, supra.) ACM 8874, Tamaro (1954) 16 CMR 610.

§ 43. Evidence, Weight and Sufficiency

§ 43.7. Participation or joint commission of offense.

The accused were convicted of robbery. Statements by each accused were introduced in evidence in which each admitted participating in the robbery but the statement of one of the accused stated that the venture was conceived only as a joke which went too far when shots were fired and money was taken. Government evidence showed that the two accused and two other participants discussed the idea of a robbery in advance, that a gun was obtained and loaded in the presence of all four, that a preliminary trip was made to look over the scene, that the car used each time was parked on a bush trail in the rear of the establishment robbed, that all four wore handkerchiefs over their faces, one carried a gun, loaded and cocked, and two carried machetes and the fourth was armed with a stick, that the gun was fired twice, that money was removed and subsequently divided among the four and that at no time did anyone mention or otherwise indicate that the holdup was a joke. Held: Circumstantial evidence may be relied on to establish that one who committed an act in furtherance of the crime, in fact shared a common purpose to accomplish the resulting felony. Surrounding circumstances may in themselves make clear the intent necessary to constitute one an aider and abettor. (Citing U. S. v. Jacobs (No. 152), 1 USCMA 209, 2 CMR 115; 46 Am Jur 150.) The surrounding circumstances were such as to permit a reasonable inference that the accused concurrently possessed the intent to accomplish exactly what did result. Despite the protestations of the accused who stated in his statement that the robbery was a joke, his participation, contributing to the success of a venture, was sufficient to sustain his conviction. NCM 375, Harris (1954) 18 CMR 389.

§ 49.1. Generally.

§ 49. Findings

Propriety of findings of guilt of lesser included offenses of assault and battery and wrongful appropriation not separately stated, see United States v. Calhoun (No. 5390), supra § 9.5.

SCHOOLS AND EDUCATION

§ 31. Dependents of Military Personnel

§ 31.1. Generally.

Section 13 of the Act of 2 August 1946, authorizing the Secretary of the Navy to contribute to the support of schools for dependents of naval personnel in localities where available schools are inadequate, contemplates that agreements with the schools will be made by appropriate administrative officers after a proper administrative determination that existing facilities are not adequate, and therefore, annual Navy appropriations are not available for reimbursement of naval personnel for tuition charges personally incurred for children in private schools. MS Comp Gen B-117922, 33 Comp Gen 399. 24 March 1954.

An Army officer's divorced wife residing in Panama wishes to send her children, at Army expense, to schools operated by the Canal Zone government. The officer is presently on active duty and residing in Philadelphia, Pennsylvania. Held: Section 709 of the Department of Defense Appropriation Act, 1955 (68 Stat 351) provides no authority for the payment of tuition for dependents of military or civilian personnel of the Department of Defense unless such civilian or military personnel are stationed in a foreign country or residing on a military installation and unless such dependent children are in fact dependent on the military or civilian personnel concerned. Accordingly, the fact that the officer herein is not residing on a military installation or stationed in a foreign country renders his dependent children ineligible for primary and secondary schooling under the cited statute. On the other hand, the fact that the officer is divorced does not, of itself, render his children ineligible for primary and secondary schooling under the mentioned statute. If his children are in fact dependent on him they would, if they had otherwise been qualified, be eligible for primary and secondary schooling under sec 709. (Citing JAGA 1950/4842, 8 Sep 1950; JAGA 1951/7771, 28 Dec 1951, 1 Dig Ops, SCHOOLS & ED § 31.1; JAGA 1952/8234, 20 Oct 1952, 2 Dig Ops, SCHOOLS & ED § 31.1; JAGA 1953/7480, 11 Sep 1953, 3 Dig Ops No. 3, SCHOOLS & ED § 31.1.) JAGA 1954/7298. 27 August 1954.

The government is not obligated to pay for correspondence courses for the dependent daughter of an officer on duty with the U. S. Army Mission to Bolivia where such courses were secured by the officer personally, since agreements or arrangements for private schooling must be made by appropriate administrative officers after a proper administrative determination that existing school facilities are not adequate. (Citing sec 616 of the Department of Defense Appropriation Act, 1952, 65 Stat 446; Comp Gen B-117922, 4 Dig Ops No. 1, SCHOOLS & ED § 31.1; Newman v. U. S., 28 F2d 681; Beard v. U. S., 59 F2d 940.) MS Comp Gen B-119988, 34 Comp Gen 126. 20 Sept 1954.

An Air Force officer's niece and nephew brought to Europe at his expense and living in his household, but not listed as tax deductions, cannot attend a service-operated school without paying tuition since no authority is provided for attendance at Air Force Dependent Schools by non-dependent children without the payment of tuition on the basis that they are members of the household of military personnel stationed overseas, or otherwise. Funds are available only for the education of dependents. Op JAGAF 1955/4. 8 February 1955.