United States v. Kepler

[136] Opinion of the Court Ferguson, Judge: Among other things, the accused was found guilty of wrongful appropriation of a five-ton wrecker, in violation of Uniform Code of Military Justice, Article 121, 10 USC §921. Our examination of the record discloses a failure to establish by evidence other than accused’s voluntary pretrial statement that the motor vehicle in question was probably wrongfully appropriated by someone. Absent such proof, the prosecution for this offense must fail. United States v Hirt, 13 USCMA 420, 32 CMR 420; United States v Smith, 13 USCMA 105, 32 CMR 105; United States v Young, 12 USCMA 211, 30 CMR 211. The findings of guilty of Charge II and its specification are set aside, and Charge II is ordered dismissed. The sentence is set aside, and the record of trial is returned to The Judge Advocate General of the Army. The board of review may reassess the penalty on the basis of the remaining findings of guilty. Judge Kilday concurs.