
    UNITED STATES, Appellee v CLARK E. HARTSOCK, Jr., Airman Second Class, U. S. Air Force, Appellant
    14 USCMA 221, 33 CMR 433
    No. 17,016
    September 5, 1963
    
      
      Colonel Daniel E. Henderson, Jr., and Major Hugh J. Dolan were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Emanuel Lewis was on the brief for Appellee, United States.
   Opinion of the Court

Per Curiam:

Pleading guilty in each instance to the lesser included offense of wrongful appropriation, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, the accused was found guilty of larceny, as charged, in violation of the same Article. He was sentenced to bad-conduct discharge, forfeiture of $55.00 per month for six months, confinement at hard labor for six months, and reduction to airman basic, which punishment has been affirmed below.

Following his instructions to the special court-martial on the elements of larceny and those of the lesser offense of wrongful appropriation, the president advised the members as follows:

“Should you fail to find beyond a reasonable doubt that the accused did not intend to permanently deprive or defraud . . . [his victims] of the use or benefit of the property alleged, or to permanently, appropriate the same to his own use or the use of any other person other than the true owner, then you may not find him guilty of larceny; however, you may, by appropriate exceptions (and substitutions)' find him guilty of the lesser offense of wrongful appropriation, if you are satisfied that each of the elements of such lesser offense has been established by legal and competent evidence beyond a reasonable doubt.” [Emphasis supplied.]

The instruction is prejudicially erroneous as, in conflict with the earlier advice, it permitted the court to find accused guilty of larceny even though it determined he did not have the intent to steal. United States v Noe, 7 USCMA 408, 22 CMR 198; United States v Skonberg, 10 USCMA 57, 27 CMR 131; United States v Holloway, 10 USCMA 595, 28 CMR 161.

The decision of the board of review is reversed and the record of trial is returned to The Judge Advocate General of the Air Force. In light of accused’s provident plea of guilty to wrongful appropriation, the board may, as to both specifications, reduce the findings of ghilty to that offense and reassess the sentence, or it may order a rehearing.  