
    UNITED STATES, Appellee v. DALE E. WINGERT, Corporal, U. S. Army, Appellant
    1 USCMA 574, 4 CMR 166
    No. 785
    Decided August 8, 1952
    Lt. Col. Thayer Chapman, USA, and 1st Lt. Richard L. Brown, USA, for Appellee.
    Lt. Col. Stewart H. Legendre, USA, and Capt. John R. Sennott, USA, for Appellant.
   Opinion of the Court

PER CURIAM:

Petitioner, Corporal Dale E. Wingert, was convicted by general court-martial of sleeping on post in violation of Article 113 of the Uniform Code of Military Justice, 50 U.S.C. § 707. He was sentenced to dishonorable discharge, total forfeitures of pay, and confinement at hard labor for ten years. Army reviewing authorities have upheld the findings and the sentence.

This accused was tried in common with Private First Class Warren G. McConnell, whose petition was before this Court in United States v. McConnell (No. 596), 1 USCMA 508, 4 CMR 100, decided July 31, 1952. In that case, we held that prejudicial error requiring rehearing was committed by a conference between the law officer and the court during the deliberation of the court on the sentence. Since this was a common trial, the error affects this petitioner as much as it did McConnell. Accordingly, the decision of the board of review is reversed and a rehearing is ordered.

We note that petitioner has also filed a petition for new trial under Article 73 of the Uniform Code of Military Justice, 50 U.S.C. § 660. Since a rehearing is granted, petitioner will receive the relief which he seeks in his petition for a new trial. That petition is, therefore, moot and is dismissed.

Judge Latim'eR did not participate in the decision in this case.  