(Rehearing denied 18 May 1953, 345 US 97 L ed 1061, 73 S Ct 693. § 27.1. Generally. § 27. Compensation The Army acquired a building on 6 February 1951 by condemnation and the tenants of the former owner moved from the premises, the first removal occurring on 31 March 1951, and the last on 31 May 1951. Section 501(b), Title 5 of the Act of 28 September 1951, 65 Stat 336, 364, authorizes the Secretaries of the Army, Navy, and Air Force, to the extent administratively determined to be fair and reasonable, under regulations approved by the Secretary of Defense, to reimburse owners and tenants of land acquired by their departments pursuant to the Act for expenses, losses and damages in moving. The Act also provides that no reimbursement shall be made unless application is made therefor within one year following the vacating. On 25 March 1952 the acquisition of the building in question was determined to be an acquisition pursuant to the Act of 28 September 1951, supra, and several of the tenants applied for reimbursement under the statute. However, the applications were not submitted within one year after vacating. The Department of the Army was of the opinion that it could not reimburse because the applications were not made within the one-year period, such opinion being based upon the assumption that the one-year provision is unaffected by either (1) the quasi-retroactive effect of the ratification of the acquisition of 6 February 1951; (2) the period elapsing between such enactment and the promulgation of regulations on 19 February 1952 by the Secretary of the Army; or (3) the period elapsing between such enactment and the publication of such regulations in the Federal Register in 22 March 1952. While the property involved was acquired on 6 February 1951, sec 101, Title 1, 65 Stat 336, specifically authorized the acquisition of the building involved, in effect, ratifying and confirming the acquisition of the building and bringing it under the provisions of the statute. Held: The provision of the statute requiring application for reimbursement within one year following the date of vacating is clear and unambiguous and is not subject to construction. Furthermore, it is self-executing in that the limitation period for filing applications for reimbursement is in no wise contingent upon the issuance of regulations. Accordingly, the Secretary of the Army is not authorized to reimburse the tenants for losses and damages incurred in moving under the provisions of the statute where the claim was not filed within the one-year period. Furthermore, aside from the provisions of the statute there is no authority to pay moving and related expenses. (Citing United States v. Petty Motor Corp. 327 US 372, 90 L ed 729, 66 S Ct 596, 5 Bull. JAG 61.) MS Comp Gen B-113363, 32 Comp Gen 358. 5 February 1953. § 27.51. Value for particular purpose. See 18 Am Jur, Eminent Domain §§ 347, 348. Certain land was taken by the government and used as an ordnance depot. In instructing the jury on the question of compensation, the court charged that the use that the government had made of the property for the ordnance depot was not to be considered for any purpose in determining the question of reasonable and just compensation, and that the property should be viewed as it existed at the time of taking. Held: The instruction was a correct statement of the law. There is authority for the rule that the landowner is entitled to prove the value of the land for the purpose for which it is taken, when and if the land could or might be utilized by others for the same purpose for which it is condemned. However, where the land is condemned by the government for a military purpose, the reason for the rule does not exist. No person or agency other than the government could have occasion to condemn land for a military purpose. Moreover the defendants offered no proof as to the value of the land for the purpose for which it was taken by the government. An instruction in accordance with the defendants' contention that the jury was entitled to take into consideration the use which the government had made of the property would have permitted the jury, without proof, to speculate upon the value for the use for which the government had taken the property. (Citing Olson v. U. S., 292 US 246, 54 S Ct 704, 78 L ed 1236. Distinguishing Mississippi and Rum River Boom Co. v. Patterson, 98 US 403, 408, 409, 25 L ed 206; U. S. v. Chandler-Dunbar Water Power Co., 229 US 53, 57 L ed 1063, 33 S Ct 667; Ford Hydro-electric Co. v. Neely, 13 F2d 361, 362.) United States v. Catlin et al, 204 F2d 661. IV. SALE, TRANSFER, OR OTHER DISPOSITION; § 57. Leases and Rentals § 57.61. Discriminatory practices by lessee. A Negro government employee who applied for a rental unit in a government housing project (Wherry), which was located at an Army installation and was leased to a private corporation, was certified as eligible and given a referral memorandum to the project manager for assignment to an apartment which was vacant at the time of referral. However, the civilian employee claims that he was refused a rental unit because of his race and color. Held: The referral memorandum constituted a tenant designation under the leases in question and the lessee's failure to comply with a tenant designation constitutes a breach of covenant which may form the basis for legal action by the government against the lessee. Although neither the Act of 5 August 1947 (61 Stat 774), as amended (10 USC 1270), Title VIII of National Housing Act, as added by the Act of 8 August 1949 (63 Stat 570, 12 USC 1748 et seq.), nor the leases in question impose any antidiscrimination obligations upon the lessee, and even though the leases provide for re-entry by the lessor only in the case of default in the payment of rent, the Secretary of the Army may revoke the leases in question for discriminatory practices, inasmuch as the Act of 5 August 1947, supra, provides that any lease effected under its provisions shall be revocable by the Secretary during a national emergency declared by the President, and the national emergency the President declared on 16 Decem ber 1950 (Proclamation 2914 (15 Fed Reg 9029)), still continues. If the lessee is advised that persistence in discriminatory practices will result in a revocation of his lease, he may discontinue such practices. JAGA 1953/7661, 26 October 1953. LARCENY AND WRONGFUL APPROPRIATION I. IN GENERAL. § 1. Generally. § 9. Included Offenses. § 11. Attempts. II. NATURE AND ELEMENTS OF OFFENSES. § 15. In General. § 17. Intent. § 19. Taking, Obtaining, or Withholding. § 21. Non-Consent of Owner to Taking, Etc. § 23. False Pretenses. § 27. Value of Property. III. PROSECUTION. A. IN GENERAL. § 31. Charges and Specifications. § 35. Pleas and Defenses. § 36. Instructions to Court. § 37. Findings. B. EVIDENCE. 1. In General. § 47. Admissibility, Competency, and Relevancy. § 51. Variance. 2. Weight and Sufficiency; Presumptions and Inferences. § 57. Wrongful Appropriation. § 59. False Pretenses. § 61. Ownership of Stolen or Missing Property. § 63. Possession of Stolen or Missing Property. § 67. Participation in Offense. I. IN GENERAL § 1. Generally UCMJ, Art 121 is constitutional. The power of Congress to legislate in the field is undoubted and Congress has fixed an ascertainable standard of guilt in Art 121 and its language is adequate to inform persons accused thereunder of the nature and cause of the accusation. It is therefore not repugnant to the Sixth Amendment of the Constitution. Nor is the article so indefinite in its terms as to violate the due process clause of the Fifth Amendment. (Citing U. S. v. Aldridge (No. 686), 2 USCMA 330, 8 CMR 130; U. S. v. Norris (No. 1756), 2 USCMA 236, 8 CMR 36; U. S. v. Buck (No. 2330), 3 USCMA 341, 12 CMR 97; People v. Miller, 169 NY 339, 62 NE 418, 88 Am St Rep 546; Commonwealth v. Kelley, 184 Mass 320, 69 NE 346. Distinguishing U. S. v. Cohen Grocery Co., 255 US 81, 65 L ed 516, 41 S Ct 298, and Territory v. Burns, 27 Hawaii 253; cf. Omaechevarria v. Idaho, 246 US 343, 348, 62 L ed 763, 38 S Ct 323.) CGCM 9798, Rush (1953) 13 CMR 594. § 1.9. Single or separate larcenies. See 32 Am Jur, Larceny $ 9. The accused was convicted of stealing a cigarette lighter and six separate specifications alleging stealing letters and a package from the mails. The mail matter concerned bore postmarks indicating one letter was in the mails on 3 September 1953, the package was in the mails on 21 September 1953 and the other letters were in the mails on 18 and 19 October 1953. The lighter was identified as the property of a person whose address appeared on the package wrappings. The accused pleaded guilty to the six specifications alleging mail offenses. Defense counsel raised the question of multiplicity and contended that it was a factual question to be submitted to the court under appropriate instructions. However, the law officer ruled that it was one of law only and instructed the court accordingly. After findings of guilty, the law officer instructed the court that the maximum punishment extended to a dishonorable discharge, total forfeitures, and confinement at hard labor for thirty years, six months. Held that: the burden of proof is upon the government to prove the essential elements of the offenses carrying the greater penalty. Accordingly, in order to support the maximum punishment as stated by the law officer, the government was required to prove that each offense alleged was in fact separate and distinct. If all of the mail offenses concerned were simultaneous and continuous, the accused could be punished for only one offense whereas if the takings were unsimultaneous each abstraction was a separate offense. (Citing U. S. v. Florence (No. 207), 1 USCMA 620, 627, 5 CMR 48, 55; ACM 7737, Hammock, 13 CMR 816, and authorities cited.) - the law officer's ruling that the question of multiplicity was one of law only was correct since there was no dispute in the testimony of the witnesses as to the facts and thus no question of fact relative to the actual number of separate offenses herein involved was present for submission to the court. In a proper case, where the evidence presents a clear factual dispute as to whether a number of offenses charged were actually committed simultaneously or in one transaction and the defense presents a timely request, the law officer should submit such a question to the court-martial under appropriate instructions. However, such is not the case here. the larceny of property contained in a letter or package is an offense separate and distinct from the wrongful abstraction of such letters or package from the mails as the former requires proof of elements not required in the latter, i.e., ownership in another, value, and specific intent to permanently deprive the owner of his property. Accordingly, no multiplicity exists in regard to the offenses of stealing the package from the mails and stealing the lighter which was in the package, but rather the offenses are separate and distinct and the accused could be punished for both. (See UCMJ, Art 121, MCM, 1951, par 200a; ACM 2983, Petrus and Wares, 3 CMR (AF) 628; |