evidence of value and since this value was not unreasonable and there was no evidence refuting the testimony of the owner as to the market value, the court could legally reach a finding that the camera was of a value of $40.00. ACM 8275, Robinson (1954) 15 CMR 784.

Sufficiency of evidence of value of used camera, see also ACM 8040, Johnson and Swift, infra § 67.1.

§ 31.1. Generally.

III. PROSECUTION

A. IN GENERAL

§ 31. Charges and Specifications

The accused was convicted under a specification which alleged that on or about 5 March 1953, at Camp Hanford, Washington, he stole, from the office of Chief Warrant Officer [name of warrant officer], Personnel Officer, 5th Antiaircraft Artillery Group, nine letters addressed to certain named persons, members of the United States Army, before they had been received by the persons to whom they were directed. The specification did not allege that the "letters" were mail matter.

Held that:

-the above specification sufficiently informed the accused of the precise offense with which he was charged and together with the competent evidence barred a second trial for the same offense. (Citing U. S. v. Marker (No. 281), 1 USCMA 393, 400, 3 CMR 127, 134; U. S. v. Smith (No. 887), 2 USCMA 197, 199, 7 CMR 73, 75; MCM, 1951, subpar 87a (2).)

- the word "letter" when used in connection with the other allegations of the specification alleges an interference with the mails as that term applies to the armed forces. (Citing U. S. v. Dejewski (No. 2055), 3 USCMA 53, 11 CMR 53, 10 Jul 1953; Wolba v. U. S., 86 F2d 35, 39; Webster's New International Dictionary, 2d ed.)

section 317, Title 18, United States Code, was designed to protect the United States Postal Service and was never written with the peculiar problems of the armed forces in mind. Accordingly, the legal precedents which have developed from it are based on civilian facts and civilian situations and are not binding on the armed forces. Experience has demonstrated the necessity for the armed forces to protect the sanctity of its mail not only through the use of the federal postal statutes, where appropriate, but additionally, through the use of that part of the general article, now UCMJ, Art 134, which condemns all disorders and neglects to the prejudice of good order and military discipline. The armed forces may designate custodial places for depositories of mail matter and declare that the theft or other interference with mail deposited with, in, or on them before it was delivered or actually received by the person to whom it was directed, violative of UCMJ, Art 134, and authorize punishment more severe than that

authorized for simple larceny. (Citing Acosta, 4 BR (ETO) 65; Model Specifications Nos. 164, 165, App 4, MCM, 1949; MCM, 1949, subpar 117c, p 142; Model Specifications 151, 152, App 6c, MCM, 1951, p 492; subpar 127c, Section A, MCM, 1951, p 226.) there is no purpose, in reaching the present result, to create a new offense by resort to UCMJ, Art 134. The offense here condemned has grown out of the exigencies and complexities of the services. Such it is believed is the purpose of the general article. Violations of federal postal statutes where charged as such are still punishable under the general article as "crimes and offenses not capital" but this does not restrict the over-all application of the article nor limit the punishment of offenses not otherwise covered by the Uniform Code of Military Justice which are prejudicial to good order and military discipline. CM 364188, Benson (1953) 11 CMR 568.

There is no merit to an argument that a statutory right to a bill of particulars is necessary to protect the constitutional rights of an accused when a simplified form of specification is authorized to allege an offense under such a statute as UCMJ, Art 121. The constitutional rights of an accused are fundamental, but the procedural device of a bill of particulars is not. A court-martial could not disregard the rights of an accused to be informed of the nature of the accusation and to be protected against double jeopardy, regardless of whether there is a provision for a bill of particulars or not. The accused is protected in these rights by the Constitution and not merely or only by a particular kind of procedural instrument. (Citing People v. Bogdanoff, 254 NY 16, 171 NE 890; Commonwealth v. King, 202 Mass 379, 88 NE 454; Williams v. U. S., 164 F2d 302; Meller v. U. S. 160 F2d 757, cert den 331 US 848, 91 L ed 1858, 67 S Ct 1734.) CGCM 9798, Rush (1953) 13 CMR 594.

A specification of a charge of larceny was sufficient where it alleged that the accused did, on board a named Coast Guard cutter, between on or about 2 March 1953 to on or about 26 April 1953, steal the sum of $6,273.08, in lawful money of the United States, said money being the property of the United States government. (Citing U. S. v. Aldridge (No. 686), 2 USCMA 330, 8 CMR 130; U. S. v. Buck (No. 2330), 3 USCMA 341, 12 CMR 97; U. S. v. Bryant (No. 1491), 2 USCMA 373, 9 CMR 3.) CGCM 9798, Rush (1953) 13 CMR 594.

§ 31.2. Multiplication; duplicity.

See 32 Am Jur, Larceny § 103.

The accused was found guilty under a specification alleging the theft of twelve separate items. With respect to time the specification alleged the items were taken between the dates of 3 February 1951 and 21 January 1954. With respect to place the specification alleged the offenses took place within the First Coast Guard District which encompasses most of New England as well as naval reservations in Newfoundland. Only one of the twelve items was identified with such particularity as to exclude other similar items of the same general class.

Held: If the theft of all twelve items did not occur at substantially the same time and place, a matter as to which the specification is vague, then the specification sets forth more than one offense of larceny and is objectionable as duplicitous pleading. However, objections on the ground of duplicity, or on the ground that the specification is vague, indefinite, or uncertain are waived if timely objection or appropriate motion for relief is not made at the trial. No such objection was made here and accordingly if the defects in this specification are no more than formal they may be disregarded. However, if the specification fails to measure up to the minimum standards for legal statement of an offense the conviction thereon is a nullity. (Citing MCM, 1951, pars 69a and 200a (7).) The defects in the specification herein are more than mere matters of form. The specification does not allege with any reasonable degree of precision nor within reasonable limits where and when the accused stole what. It does not measure up as the kind of adequate informative accusation which the Sixth Amendment of the Constitution demands as the basis for a criminal prosecution. CGCMS 19992, Sparks (1954) 15 CMR 584.

See also ACM 8157, Albright, supra § 1.9.

§ 31.5. Ownership or possession of property. See 32 Am Jur, Larceny §§ 113, 114.

The accused was tried upon the following specifications: "In that Private First Class (name of accused and his organization) did, at Fort Kobbe, Canal Zone (on or about 20 July 1952, wrongfully and unlawfully steal a certain package, addressed to Sergeant (name of addressee), which said package was then in the Message Center, Headquarters, 33d Infantry, before said package was delivered to the person to whom it was directed." The specification is insufficient to show that the item stolen was mail matter. Neither the word "package" nor the word "addressed" nor the allegation that the package was taken from the message center fairly alleged that the thing stolen was ever in the mail or intended for the mail. The fact that the evidence shows that the package had been received in the message center by mail for delivery to the addressee is not sufficient to cure the defect in the specification since the language thereof omits the very element necessary to constitute the aggravated offense and this missing element may not be supplied by the evidence or the findings. (Citing State v. Topham, 41 Utah 39, 123 P 888, 894, 897; United States v. Hess, 124 US 483, 31 L ed 516, 8 S Ct 571.) However, the specification is sufficient to have apprised the accused that he was charged with larceny, since, although value is not alleged, value is not an element of the crime (Welch, CM 328590, 77 BR 145; 32 Am Jur, Larceny § 2) and while ownership is not alleged, enough is stated to show that the right of possession as well as ownership was in someone other than the accused. (Cf. United States v. Smith (No. 887), 2 USCMA 197, 7 CMR 73; United States v. Marker (No. 281), 1 USCMA 393, 3 CMR 127; United States v. Aldridge (No. 686), 2 USCMA 330, 8 CMR 130.) CM 361748, Smith (1953) 10 CMR 262.

Sufficiency of allegation of ownership of property taken where accused is charged with taking money paid in advance for laundry, see Op JAGN 1954/196, infra § 55.5.

§ 31.6. Description of property.

See 32 Am Jur, Larceny §§ 106-111.

A specification, alleging that the accused did "attempt to steal personal property of a value less than twenty dollars, property of Airman Third Class Herbert I. Walker," was sufficient. In view of the fact that it alleged the name of the owner and ownership was adequately proven, a description of the property alleged to have been the subject matter of the attempted larceny was unnecessary. (See MCM, 1951, par 159; People v. Moran, 123 NY 254, 25 NE 412, 10 LRA 109, and cases cited.) ACM S-6878, Trout (1953) 12 CMR 785.

§ 31.7. Value of property.

See 32 Am Jur, Larceny $112.

The accused was convicted of wrongful appropriation of a quarterton truck, commonly known as a jeep, property of the United States government. The specification did not contain an allegation of specific value. Held: The specification which describes a motor vehicle carries with it a sufficient showing of value to meet the requirements of law as to the sufficiency of the specification. (Citing U. S. v. Fout (No. 3631), 3 USCMA 565, 13 CMR 121; U. S. v. Sell (No. 1939), 3 USCMA 202, 11 CMR 202; U. S. v. May (No. 3450), 3 USCMA 703, 14 CMR 121.) While value is an essential element of the offense of wrongful appropriation, it may, in a proper case, be inferred from the nature and description of the property appropriated. (Citing U. S. v. May (No. 3450), 3 USCMA 703, 14 CMR 121.) United States v. Johnson (No. 3690), 3 USCMA 706, 14 CMR 124, reversing CM 364488, Johnson, 12 CMR 328.

§ 35. Pleas and Defenses

§ 35.1. Generally.

Provision of Manual that intent to pay for property stolen or otherwise replace it is not a defense as not unreasonable or unjust, see United States v. Krull, PLEAS § 9.5.

§ 36. Instructions to Court

See 32 Am Jur, Larceny §§ 153, 154.

§ 36.3. Elements of offenses, generally.

An instruction on a trial for larceny that a person who assumed custody of property and cannot account for or deliver the property is presumed to have stolen it was not erroneous as allowing a finding of guilty without intent where such instruction was only one sentence in full instructions on intent covering such matters as the consideration of presumptions and inferences regarding intent, the intent involved in lesser included offenses, the effect of drunkenness on

intent and the effect of character evidence on intent. (Cf. Morissette v. U. S., 342 US 246, 275, 96 L ed 288, 72 S Ct 240.)

Held also: Refusal of a request to instruct that "criminal intent to commit the offense under Article 121 must exist at or before the time the property is wrongfully appropriated" was proper, since the phrasing of the requested instruction differs from anything found in Art 121 or in the Manual, or in the leading case of U. S. v. Aldridge (No. 686), 2 USCMA 330, 8 CMR 130. As phrased it is misleading and could serve only to confuse the court and since the question of intent was fully and accurately covered by the instructions given, the request was properly refused. CGCM 9798, Rush (1953) 13 CMR 594.

The failure of the law officer in instructing on the elements of larceny to advise the court as to the necessity of an intent to permanently deprive the owner of the use of his property is not affected by the fact that the accused's defense was centered on the issue of mistaken identity. The law officer was still under a duty to instruct on the issue of intent (U. S. v. Clay (No. 49), 1 USCMA 74, 1 CMR 74). Furthermore, the law officer's use of the term "steal" in his instructions did not inform the court with respect to this essential element, inasmuch as such word is too ambiguous and uncertain in meaning. United States v. Rios (No. 2488), 4 USCMA 203, 15 CMR 203, remanding CM 359129, Rios, 8 CMR 310.

Sufficiency of instructions with respect to charge of failure to render accounts in violation of Section 643, Title 18, USC, see § 15.11.

§ 36.5. Wrongful appropriation.

The accused was charged with housebreaking and larceny and found guilty of unlawful entry and wrongful appropriation. There was sufficient evidence of intoxication to raise an issue as to the accused's ability to entertain a specific intent. In his instructions on the offense of wrongful appropriation, the law officer stated that such offense required an intent to temporarily deprive another of his property. He then informed the court that drunkenness could be considered in determining whether or not the accused had sufficient mental capacity to entertain the specific intent involved in the offenses charged or in the lesser included offenses. Held: The instructions did not leave the court unaware that the intent to temporarily deprive in wrongful appropriation was a specific intent. Moreover, if the instructions were not sufficiently clear the accused has no basis for complaint as he silently acquiesced to them at trial and made no request for clarifying instructions. (Citing U. S. v. McIntyre (No. 706), 2 USCMA 559, 10 CMR 57.) ACM 8353, Risby (1954) 15 CMR 838.

§ 36.7. Ownership, possession, custody, or nature of property.

On a trial for larceny, the president instructed the court that any person who wrongfully takes, obtains, or withholds from "the possession of the true owner or of any other person" any money, personal property, or article of value of any kind-with intent permanently to deprive or defraud another person of the use and benefit of property or