
    UNITED STATES, Appellee v WILLIAM E. KEPLER, Private First Class, U. S. Army, Appellant
    14 USCMA 135, 33 CMR 347
    No. 16,860
    July 12, 1963
    
      Lieutenant Colonel Ralph Herrod and Captain Ronald L. Gainer were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Francis M. Cooper and First Lieutenant John C. Cortesio, Jr., were on the brief for Appellee, United States.
   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.

Quinn, Chief Judge

(dissenting):

I would affirm the findings of guilty. See my dissent in United States v Hirt, 13 USCMA 420, 32 CMR 420.  