§3.1. Generally.

RIOT

§ 3. Nature and Elements of Offense

The accused was convicted of participating in a riot. The evidence showed that the accused and three other prisoners engaged in a disturbance in a mess hall by throwing food, fighting with the mess personnel and assaulting one air policeman and attempting to disarm another. The specification alleged that the common purpose was that of assaulting the mess personnel and assaulting the air police. Paragraph 195a, MCM, 1951, provides that there must be a common purpose to constitute a riot, but, further states that such common purpose need not be formed prior to the assembly of the participants and that it is sufficient if the assemblage actually begins to execute in a tumultuous manner a common purpose formed after it is assembled. Held: Although it did not appear that the disturbance in the mess hall was initiated for the purpose of effecting the assaults on the persons alleged, it is clear that during the course of such conduct the participants formed such common purpose and collectively executed it and this is sufficient to constitute the requisite common purpose. (Citing MCM, 1951, par 195a; 77 CJS Riot, secs 3, 5, 6, 16, 24; CM 319845, Gates, 69 BR 129; CM ETO 1284, Davis, 4 BR (ETO) 175.) ACM 6758, Lawrence (1953) 10 CMR 767. [Necessity of common purpose, see 46 Am Jur, Riots and Unlawful Assembly $11.]

Taking of property through putting a victim in fear and with intent to deprive him of his property either temporarily or permanently in violation of UCMJ, Art 134, as not a lesser included offense of robbery, see United States v. Rios, infra § 33.9.

II. NATURE AND ELEMENTS OF OFFENSE

§ 27.5. Currency.

§ 27. Value of Property

The accused was convicted of robbery. The property which was the object of the robbery was described in the specification as Japanese National currency of a value of about $.55, the property of a certain named person. The proof established that the named victim was robbed of 200 yen as a result of being put in fear by the accused. However, there was no evidence that 200 yen was equivalent to Japanese National currency of a value of about $.55 as was alleged. Held: Official exchange rates have long been recognized to be the proper subject of judicial notice, and evidence of record that the property alleged to have been stolen was of a value in foreign currency which, by judicial notice, is equivalent to that alleged in currency of the United States satisfies, in the absence of proof to the contrary, the minimum requirements of law with respect to proving value (ACM 4521, Jancauskas, 3 CMR 702: CM 342992, Street (JC), 8 BR-JC 211, 215; CM 316809, Pardee, 66 BR 59, 65). Accordingly, the proper exercise of judicial notice adequately supplies the proof required that 200 yen was Japanese currency and was, at the time of the offense, of a value of about $.55 as alleged. ACM 7848, Boyle (1954) 14 CMR 547.

III. PROSECUTION

§ 33. Charges and Specifications

§ 33.9. Taking from person or presence of victim.

The accused was found guilty of robbery under a specification al

leging that he did at a named town, on or about a specified date, by means of putting him in fear, steal from another named person, against his will, certain specified property. Held: The omission of an allegation that the accused stole the property from the person or in the presence of the victim constituted a fatal defect. (Citing MCM, 1951, pars 28, 201, App 6c, sample specification 91, p 484; Falden v. Commonwealth, 167 Va 542, 189 SE 326; Ward v. State, 34 Okla Crim 296, 246 P 664; and other authorities.) Nothing in the allegations that the taking was against the will of the victim and by putting him in fear implies that the ultimate taking was from the presence or the person of that victim since almost any larceny will be against the will of the victim and a victim may be put in fear through threats communicated to him from afar. [Quinn, C.J., dissenting, stated that the specification, taken together with the record of trial, was sufficient to protect the accused against a second prosecution for the same offense and the specification was such that there was no possibility that the accused was misled, and accordingly, his failure to attack the specification in the trial forum constituted a waiver. (Citing U. S. v. Karl (No. 1904), 3 USCMA 427, 12 CMR 183; U. S. v. Marker (No. 281), 1 USCMA 393, 3 CMR 127; and other authorities. Distinguishing People v. Ho Sing, 6 Cal App 52, 93 Pa 204; Ward v. State, 34 Okla Crim 296, 246 Pa 664; Hill v. State, 145 Ala 58, 40 So 654; Smith v. State, 82 Miss 793, 35 So 178.)]

Held also: An offense of taking of property through putting a victim in fear and with intent to deprive him of his property either temporarily or permanently in violation of UCMJ, Art 134, is not a lesser included offense of robbery. (See U. S. v. Norris (No. 1756), 2 USCMA 236, 8 CMR 36; U. S. v. Johnson (No. 2097), 3 USCMA 174, 11 CMR 174.) United States v. Rios (No. 2488), 4 USCMA 203, 15 CMR 203, remanding CM 359129, Rios, 8 CMR 310.

[See 46 Am Jur, Robbery § 32.]

§ 43. Evidence, Weight and Sufficiency

§ 43.3. Proof of corpus delicti.

Necessity of showing agreement or conspiracy where joint commission of robbery alleged, to corroborate confession, see United States v. Dolliole and Johnson, ASSAULT § 87.3.

§ 43.7. Participation or joint commission of offense. See 46 Am Jur, Robbery § 53.

The three accused were found guilty of a joint robbery. The accused B. was shown to have been present in a cab with the other two accused when it was stopped at the request of the accused S. All three left the cab for a short time and when they returned, one of them, not identified, struck the driver on the head with a pistol. When the driver fled the three entered the cab and drove off. According to B.'s testimony, after they abandoned the cab and while they were fleeing the scene one of the other accused handed him a gun which he stuck in his belt. Held: The evidence clearly implicates B. as a principal in the commission of the offense charged, rather than indicating

(Citing

mere inactive presence during the commission of an offense. U. S. v. Jacobs (No. 152), 1 USCMA 209, 2 CMR 115; U. S. v. Guest (No. 1544), 3 USCMA 147, 11 CMR 147; U. S. v. Fair and Boyce (Nos. 908 and 1188), 2 USCMA 521, 10 CMR 19; U. S. v. Wooten (No. 369), 1 USCMA 358, 3 CMR 92.) ACM 7935, Harvey. Southart and Bisson (1954) 15 CMR 826.

§ 48. Instructions to Court

§ 48.3. Elements of offense, generally.

The accused was convicted of robbery. Part of the property taken was a five dollar military payment certificate. The law officer instructed that the elements of the offense were that the accused wrongfully took from the possession of the victim the property described, that the victim was the owner of the property, and that the taking by the accused was with intent permanently to deprive the victim of the property. He then stated that the question of value is not an essential element in the offense of robbery. Held: In respect to the offense of robbery, it is necessary that the property taken have value, that the prosecution prove that it has value, and that the court members be informed that they must find that the property has value. However, if the property involved is money it is not necessary to specifically point out in the instructions that the property taken must have value. (Citing UCMJ, Art 122; MCM, 1951, p 364; 77 CJS, Robbery, pp 451-452, 474, 483, 513.) The military payment certificate constituted money of the United States. (Citing CM 348434, Barrette, 4 CMR 251; AR 35-510, 1 Nov 1951; Sec II, AFM 173-10, 1 July 1951.) Accordingly, the fact that the law officer told the members of the court that the question of value was not an essential element in the offense of robbery and did not specifically instruct the court that to find the accused guilty it must find that the money taken had some value does not affect the legal sufficiency of the findings of guilty. The law officer instructed that to find the accused guilty they must find that he stole the property described in the specification. As noted above, the property described constituted money. The court found the accused stole the property described, hence, their finding was that he stole money. Since money imports value it is apparent the findings were that the accused had taken something of value and in order to sustain the offense and punishment it need only be established that the property taken had some value. (Citing People v. Papke, 156 NE 375; U. S. v. Kubel (No. 229), 1 USCMA 645, 5 CMR 73; 77 CJS, Robbery, pp 451-452 and 483.) However, in instructing on the offense of robbery, it is advisable that in addition to giving the elements as set out in the Department of the Army Pamphlet No. 27-9, Military Justice Handbook, p 77, that members of the court should be informed that they must find that the property described in the specification is of the value alleged or of some value. (See MCM, 1951, par 201(a).) ACM 5165 (reh), Trent (1953) 12 CMR 683.

The accused was convicted of robbery. The property which was the object of the robbery was described in the specification as

Japanese National currency of a value of about $.55, the property of a certain named person. The law officer instructed the court that to find the accused guilty of robbery it must be satisfied beyond a reasonable doubt that at the time and place alleged the accused stole the property described in the specification, that such stealing was from the person alleged, and that the taking was against the will of such person by putting him in fear. He then further instructed that the offense of larceny by taking is an integral part of the offense of robbery and must be proved by legal and competent evidence. He stated the elements of larceny to be that the accused wrongfully took the property described in the specification that the person from whom it was taken was the owner of the property in the sense that he had title to it or that he had possession of it or the right to possession and that the taking by the accused was with intent to permanently deprive the owner of the use and benefit of the property. He failed to instruct as to larceny that the property was of the value alleged or some lesser value. Held: Since the property allegedly taken was money, a thing of value, albeit expressed as currency of another sovereign nation, the law officer's instruction that the court must find the accused stole the property described in the specification, in effect required the court to make a finding as to value. His failure to refer more specifically to this element was error but one which could hardly be considered prejudicial. (Citing U.S. v. Kubel (No. 229), 1 USCMA 645, 5 CMR 73; ACM 5165, Trent, 12 CMR 683; State v. Finnegean, 127 Iowa 286, 103 NW 155; Clawson v. State, 129 Wis 650, 109 NW 578; State v. Quackenbush, 98 Minn 515, 108 NW 953; State v. Eicher, 174 La 344, 140 So 498; State v. Smith, 195 La 783, 197 So 429; Enzor v. State, 27 Ala App 60, 167 So 336; Leonard v. State, 115 Ala 80, 20 So 564; People v. O'Campo, 330 Ill App 401, 71 NE2d 375.) However, the value in money of the United States should be alleged and proved in a robbery case and a specific instruction as to value should be given by the law officer even though the subject matter of the theft is United States or foreign currency. ACM 7848, Boyle (1954) 14 CMR 547.

A robbery specification alleged the property taken to be of a value of more than $50. It was stipulated between the prosecution and the defense and the accused that the value of the property referred to in the specification was in excess of $50. In his instructions the law officer failed to instruct the court that it must find the property was of a value of more than $50. Held: Notwithstanding the fact that the instructions of the law officer failed to include value as an element in robbery, the stipulation of fact that the property was of a value of over $50 forecloses any claim of prejudice since none could possibly have resulted from such failure. Where a stipulation of fact is not contradicted, limited, or rendered questionable by any other evidence adduced at trial, the matter contained in such stipulation may be accepted as established beyond any doubt by all those involved in the trial of the case. (Citing Wigmore's Code of Evidence, 3d ed, Title II, Rule 242, pp 542-544; Trial Technique by Goldstein, sec 412,