
    UNITED STATES, Appellee v RUDY LUCERO MARRUFO, Ship-serviceman Third Class, U. S. Navy, Appellant
    7 USCMA 668, 23 CMR 132
    No. 9642
    Decided March 22, 1957
    
      Commander Earl C. Collins was on the brief for Appellant, Accused.
    
      Commander Guilbert W. Martin was on the brief for Appellee, United States.
   Opinion of the Court

PER CURIAM:

The accused was tried by a special court-martial for larceny (Charge I) and conspiracy to commit larceny (Charge II), in violation of Articles 121 and 81 of the Uniform Code of Military Justice, 10 USC §§ 921 and 881, respectively. He was acquitted of the former, but found guilty of the latter. The court adjudged a sentence which includes a bad-conduct discharge. Intermediate appellate authorities affirmed. We granted review to consider the accused’s contention that the president of the court failed to instruct properly on the elements of the offense of conspiracy.

As noted, the accused was charged with conspiracy to commit larceny. In his instructions the president advised the court members that to convict the accused they must find that he entered into an agreement with two other named persons, and that the object of the agreement was “to commit conspiracy, an offense under the Uniform Code of Military Justice.” (Emphasis supplied.) Plainly the instruction was erroneous and prejudicial. It permitted the court members to base a finding of guilty upon a matter not charged. United States v Rhoden, 1 USCMA 193, 2 CMR 99; United States v Williams, 1 USCMA 186, 2 CMR 92.

The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing may be ordered.  