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main in his State of domicile and can be taxed there, if that State chooses to do so.
The Supreme Court of the United States has stated that the State where the owner of tangible personal property is domiciled may impose taxes only to the extent such property has not acquired a situs in another State. In 84 C.J.S. 226 it is stated: ... Thus, in the absence of any evidence that tangible personal property has an actual or permanent situs elsewhere than in the State of the owner's domicile, it is taxable to the owner in such State (290 U.S. 158), although it has never been brought within the boundaries of the State (166 F2d 509, certiorari denied 334 U.S. 859).
In the case of serviceman's personal property, provided it is not used in a trade or business, section 514 of the Relief Act prevents it from acquiring a situs for taxation in other than the owner's domicile. It therefore remains taxable in such domicile regardless of where it is physically located on assessment date. By remaining "taxable" does not mean, however, that the home State will exercise its jurisdiction to tax or actually impose a tax on the property.
The liability outlined above with regard to tangible personal property is also applicable to intangible personal property (securities, savings accounts, credits, and even money in some jurisdictions). A few States, such as Florida, Nebraska, Ohio, Michigan and others, have intangible personal property taxes and servicemen domiciled in such States are liable for filing returns and paying taxes on the intangibles specified in the respective State laws, if, of course, they own that type property.
Many, civilians and military alike, consider personal property taxes a particularly inequitable form of taxation and that anyone who honestly reports what he believes to be the value of his personal and household property, is a "sucker,” because of the widespread avoidance or outright evasion of that form of tax. For example, who can say what the value of your davenport is after several years use? Perhaps it is your favorite piece of furniture, but how do you know what you could receive if you tried to sell it? Perhaps you might have to pay to have it hauled away. Is it fair to pay a tax each year on wedding rings, family heirlooms, household furnishings and other personal items that are not income producing and whose value can vary from nothing to a great deal, depending on personal opinion?
Because of the difficulty of appraisal and enforcement of tangible personal property taxes, 6. Central R.R. of Pennsylvania v. Pennsylvania, 370 U.S. 607
(1962); rehearing denied 371 U.S. 856 (1962).
various formulas have been used as a substitute for actual appraisal of each piece of personal property an individual might own. A percentage of the real property assessment, a percentage of annual rent paid, or formulas based on number and types of rooms in a home are some times used in States imposing personal property taxes.
In the case of intangible personal property (stocks, bonds, savings accounts, etc.) valuation is much more easily made based on stock market reports and actual amounts in an account. In the case of intangibles, however, the owner might be subject to State income tax on the dividend or interest return and again on the actual value of the basic securities as of the assessment date. In a number of States (e.g., Florida, Illinois, Michigan, Ohio, Texas) the double taxation (income and property) is not a problem because of their having no State income tax, but the intangible personal property tax is not always uniformly administered. To cite some examples: Commerce Clearing House, Texas Tax Reports has the following editorial comment:
The taxation of intangibles in Texas has been neg. ligible. In certain counties a real effort has been made
to assess such property, but they are the exceptions.' The Commerce Clearing House comments as follows on the enforcement of the Illinois property tax law:
Intangible personal property is subject to taxation in the same manner as tangible property. In practice, the assessment of intangibles in Illinois is inefficient They often are not listed, or those listed are assessed at a fraction of actual value.
Enforcement policies regarding a State personal property tax law may vary considerably from county to county within the same State and perhaps even from city to city or township to township. Because of these administrative variations and the other problems outlined above, it would be extremely difficult if not impossible to prepare a compilation of State requirements regarding personal property taxes, similar to that compiled for State income taxes. About the only way an individual can be sure he is complying with his home State laws, as administered by local tax administrators, is to write, explain his situation and ask. The local assessor may write back and advise that if the serviceman's property is not physically in his home State on assessment date, he need not file a return. This has been true in a number of
(Continued on page 293) 7. CCH, Texas Tax Reports, par. 20-181. 8. CCH, Illinois Tax Reports, par. 20–182.
9. JAG NOTICE 5840 of 24 Dec. 1963.
THE OFFENSE OF KIDNAPPING
UNDER THE UCMJ
LT RONALD S. SCHWARTZ, USNR*
of A Kild Abueled Gramshis mind the
HE TERM KIDNAPPING calls to mind the
a ransom; legally, however, the crime of kidnapping encompasses many seemingly dissimilar offenses. The all-inclusiveness of the term “kidnapping” has resulted in a need for convening authorities and staff legal officers to be especially alert for the subtleties of actual situations which may involve a charge of kidnapping.
The common law definition of the offense of kidnapping, as modified in the United States in colonial times, involved (1) an unlawful and (2) forcible abduction of (3) any person (4) from one state or country into another. All states, as well as the Federal Government, now have statutes which have progressively expanded the scope of the offense. These statutes, of course, vary from jurisdiction to jurisdiction; the following examples illustrate how far the original concept of kidnapping has been expanded. Under statutory law, kidnapping is committed by: a robber of a Federally insured bank who, in attempting to escape apprehension, forces any person to accompany him; ? an individual who forcibly abducts any person with the intent to commit rape, robbery or another felony upon them; a prisoner who abducts a jail guard, under restraint to better effect an escape from the jail; - a recruiter who effects the intoxication of a sailor and his subsequent surreptitious removal to a ship; 5 one party's willful confinement of another against that person's will and without authority of law; & and anyone who induces a child by threats to enter a vehicle.? In fact, under contemporary laws, a parent may even be guilty of kidnapping his or her own child if the custody of that child has been awarded by a court order to the other parent.8 *Lieutenant Ronald S. Schwartz, USNR-R, is a graduate of Northwestern University and its Law School, He is a member of the Bar of the State of Illinois. While on active duty he served as legal officer of the USS HANCOCK (CVA-19) for two years and thereafter served as appellate defense counsel in the Office of the Judge Advocate General, West Coast. 1. 2 Burdick, Law of Crime, $ 394. 2. 18 U.S.C. & 2113 (1958). 3. United States v. Wright, 12 USCMA 202, 30 CMR 202 (1961). 4. United States v. Powell, 24 F. Supp. 160 (D.C. Tenn. 1938). 5. Re Kelly 46 Fed 653 (C.C. Ore. 1890). 6. N.Y. Penal Code, $ 211 (1862). 7. People v. Harris, 154 P2d 442 (1944). 8. Shinn v. State, 239 P. 269 (1925).
These previous examples constitute only a small sampling of the various acts that are now chargeable as kidnapping. This expansion of the concept has naturally caused an increasing number of cases in the military to be so charged. Since the Uniform Code of Military Justice contains no punitive article relating to kidnapping, these state and Federal statutes are of great importance to the military.”
Many had interpreted Article 97 of the Uniform Code,10 which provides that “Any person subject to this code who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct” was intended to apply to the offense of kidnapping.
This belief was reinforced by the Court of Military Appeals decision in the case of United States v. Hardy,11 In this case, the accused prevented two provost marshals from taking him into custody for an absence offense, when they went to his home in an attempt to locate him, by drawing a loaded pistol and ordering them to accompany him to a neighbor's house. The accused then forced them to take him in their car to a stated destination. The court held that these facts were properly chargeable under Article 97, and that this Article was not limited to unlawful exercise of authority by one duly authorized to apprehend, arrest, or confine others.12 This case, then, seemed to hold that Article 97 would be broad enough to support many factual situations which would normally be considered as kidnapping.
In 1961, however, the Court of Military Appeals ruled 13 that Article 97 is limited to a far less serious crime than kidnapping. The court held that the Congressional intent behind Article 97 was limited to the civilian offense of false arrest and false imprisonment. While false arrest and false imprisonment may be elements of the more serious offense of kidnapping, the court held that Congress did not intend to confine kidnapping to factual situations involving only these limited areas. 14
9. 18 USC, § 13 and Para. 213(c) MCM state that acts or omissions
not made punishable by another Article under the Code may be charged under Article 134, UCMJ, as crimes and offenses not capital. When this section is invoked, state or Federal law,
according to the factual nature of the case, is employed. 10. Labeled “Unlawful detention of another." 11. 11 USCMA 487, 29 CMR 303 (1960). 12. Judge Ferguson dissented from the opinion on the grounds that
the Congressional intent of Article 97 was to provide for the punishment of those who use their code-conferred powers of arrest, apprehension and confinement, arbitrarily, for the purpose of
harassing personnel under their control. 13. United States v. Picotte, 12 USCMA 196, 30 CMR 196 (1961).
The court stated that the Hardy case held only that Article 97 equally applied to all persons in the service and was not intended by Congress to be limited to crime-enforcement officers authorized to apprehend, detain or confine members of the armed forces.
An examination of this decision is important in considering the offense of kidnapping as chargeable in the military. The accused was a prisoner in the Post Stockade at Fort Carson, Colorado, awaiting trial for another offense. While on a work detail, the accused, in concert with other prisoners, assaulted a guard and forced him into the rear of a car parked in the vicinity. The prisoners escaped from the base keeping the guard hostage at knife point. When the car developed mechanical difficulties the guard was tied up and the accused and his fellow prisoners attempted to escape on foot. The accused was apprehended and then tried by court-martial under the State Statute of Colorado, which provided that "A person shall be guilty of kidnapping who willfully (1) abducts, steals away or secretes any man, woman, or child, forcibly or otherwise; or (2) without lawful authority seizes, confines, imprisons, keeps or detains another against his will, forcibly or otherwise, within the state or to be sent out of the state;
The court had no difficulty in finding that the conduct of the accused was prohibited by this State law. The court held that the Assimilative Crimes Act makes the violation of a state law a Federal offense and that the acts of the accused were properly tried by courtmartial as a violation of Article 134 of the Uniform Code.
Shortly after the Picotte case, the Court decided the case of United States v. Harkcom.16 It was discovered that the accused, on separate occasions, had forcibly abducted two children intending to rape them. On one occasion he drove the victim off the base to another point in New Jersey, while in the other he did not leave the base, but drove the child to a secluded area of the base. Among other charges, he was 14. Dicta in the court's opinion indicates that in some circumstances
tried for kidnapping, under a New Jersey statute.17 The accused argued on appeal that 18 USC § 120118 applied and therefore precluded the application of the New Jersey law. The Court, however, stated that since no transportation across state lines had occurred the Lindbergh Act could not be applied and the case was therefore properly charged under the New Jersey statute.
The import of these cases seems to be clear. If the act of kidnapping takes place, in part upon the Federal reservation, within the state without a crossing of state lines, the state statute is applicable. If the accused transports the victim across a state line, the offense would be triable under the Lindbergh Act.
A third possibility would be where the crime could not be charged under the Assimilated Crime Act 19 but could fall under, the conduct to discredit to the Armed Forces, section of Article 134. If the acts of the accused are, in fact, of a nature to bring discredit to the armed forces, the offense, under certain circumstances, may be tried under that section of Article 134.20
The Federal or state statute must be applied, under the Assimilated Crimes Act, as the facts of each specific case demand. Each individual statute may well require a correspondingly different set of instructions. This problem has been discussed in the case of United States v. Vargas.21 The facts of this case are that the accused, while a prisoner in the Army Post Stockade at Fort Ord, California, was being transported by vehicle and under armed guard, from Fort Ord to Treasure Island, California. During the course of the trip the accused, seated in the rear of a Navy sedan, drew a small knife, placed it against the guard's wrist and directed him to deviate from the course. The driver naturally detoured from the highway. Making many turns at the direction of the accused, he drove a distance of five miles, at which time the accused jumped from the automobile and temporarily escaped.
The accused was charged with a violation of Article 134, UCMJ in the following words: "In that ... did, in conjunction with ... on or about 17 July 1962, at San Jose, California, violate Title VIII, Chapter III, Section 207, California Penal Code,22 by wrongfully and without proper 17. N.J. Stat. Ann. $ 2A 118-1 (1953). 18. 18 USC $ 1201 (1958), commonly known as the Lindbergh Act. 19. Where, for example, the act did not take place at least in part on
Art. 97 may be a lesser included offense of kidnapping. This could lead to instructional problems, since it might be difficult
to determine when factually this would be the case. 15. Colo. Rev. Stat. $8 40–2–44. 16. 12 USCMA 257, 30 CMR 257 (1961).
a military reservation and no Federal act was violated. 20. United States v. Long, 2 USCMA 60, 6 CMR 60 (1952). 21. WC NCM 62 00910, 11 Jan. 1963 (unpublished). 22. Which provides: "Every person who forcibly steals, takes, or
arrests any person in this state, and carries him into another country, state or county, or who forcibly takes or arrests any
Haag . ::
authority under the laws of the United States or the laws of California, kidnap James R.
and Alfred Norvell, ... U.S. Navy by forcibly requiring them to drive (him), the said Vargas ... from one point to another within the County of Santa Clara, State of California.”
The law officer instructed the court that "The second specification of Charge III charges the accused with kidnapping, in violation of Article 134 of the Code. That Article provides, in pertinent part, that all disorders and neglects to the prejudice of good order and discipline in the armed forces and all conduct of a nature to bring discredit upon the armed forces shall be taken cognizance of by court-martial.
“The court is advised that to find the accused guilty of the second specification of Charge III and the Charge, it must be satisfied by legal and competent evidence beyond a reasonable doubt; first, that the accused did, on or about 17 July 1962, in the City of San Jose, California, forcibly move James R. Haag and Alfred Norvell from one place to another within the County of Santa Clara, State of California ; and second, that such conduct was of a nature to bring discredit upon the Naval service."
Appellate defense counsel argued that under Section 207 of the Penal Code of California, it is required that the forcible movement be without authority of the laws of the United States or California. The Board of Review then looked to the case law of the State of California in order to determine what instructions would have been necessary had this case been tried by the State of California rather than by the Military.
The Board ruled, on the basis of the California law,23 that in the civilian community the forcible movement of others, unless committed without authority, is not violative of the California Penal Code. Thus the forcible movement of seryicemen, unless committed without authority, does not constitute discreditable conduct. The Board, therefore, ruled that the failure of the law officer to instruct the court that it must find the forcible movement to be unlawful or wrongful 24 constituted prejudicial error, and dismissed the charge.
This ruling illustrates potential problems in cases of this nature. Even though this case was not charged under the Assimilative Crimes Act, the Board of Review stated that in order to determine whether the acts of the accused constituted a disorder under Article 134(2) it was necessary to examine the law of California on the subject.
Therefore, it is not only necessary to instruct the court regarding the state and Federal statutes in cases tried under the Assimilative Crimes Act, but in a case tried as a disorder it is necessary to instruct under these statutes, so that the court may determine if the actions of the accused were in violation of the law and therefore of a nature to bring discredit upon the armed services.
The final determination, in each instance, is the proper maximum sentence. Paragraph 127 (c) of the Manual for Courts Martial states "Offenses not listed in the Table, and not included within an offense listed, or not closely related to either, remain punishable as authorized by the United States Code (see, generally, Title 18) or the Code of the District of Columbia, whichever prescribed punishment is the lesser, or as authorized by the custom of the service."
The court in the Picotte case discussed this punishment problem at length. The court stated that its holding in this case was that there was a complete dissimilarity between kidnapping and any other listed offense in the Uniform Code, so that the punishment for a violation of Article 97, as listed in the Table of Maximum Punishments, would not be applicable.
The court then examined the United States Code and stated that since Title 18 USC, Section 13, not only assimilated the substantive offense but also the punishment provided therefor, that the punishment as provided by the state statute was applicable.
The law in this area would then seem to be clear. In an instance where the accused is tried by court-martial for a violation of state law under the Assimilative Crimes Act, the maximum punishment as provided by state law would be applicable, if the maximum punishment as provided by the District of Columbia Code and/ or the U.S. Code is greater. In regard to this requirement see paragraph 127c, MCM, 1951.25
person, with a design to take him out of this state, without hav. ing established a claim, according to the laws of the United
States or of this state, ... is guilty of kidnapping." 23. People v. Fernandez, 15 P.2d 172 (1932). 24. The California Jury Instructions (Criminal) recommends the
instructions for Penal Code Section 207 as “Every person who unlawfully and forcibly steals, takes, or arrests any other person in this state, and carries him into another country, state or county, or into another part of the same county, doing so against his will and without the consent of the person so carried, is guilty of kidnapping."
(Continued on page 294) 25. An interesting problem may develop here if the only punishment
provided for by the state is death. Since the Assimilative Crimes Act can be used only in cases not capital, and both the substantive law and the punishment are assimilated, it would be impossible to separate the law and punishment in order to try the accused under state law, or at all. See United States v. French, 10 USCMA 171, 27 CMR 245 (1959).
RIGHT TO SPEEDY TRIAL
STATE OF THE LAW
From the historic day of Runnymede, in 1215, when the English barons exacted the Magna Carta from King John, a guiding principle in English, and later American, jurisprudence has been that justice delayed is justice denied.1
These words by Judge Ferguson succinctly state the foundation in the military of the necessity for a speedy trial. Mindful of the fact that too quick a trial, without time for adequate preparation, is as equally unjust as an unreasonable procrastination before the commencement of trial, the question immediately raised is what statutory provisions reflect the rights of an accused to receive a prompt trial? This state of the law article discusses first, the statutory provisions bearing on the right to a timely trial, and secondly, the various ramifications, amplified by judicial decisions, of the question of the right to a speedy trial. These judicial decisions of the Court of Military Appeals and the Boards of Review turn most often on a definition of "reasonable delay" when applied to a specific factual situation.
The right to a speedy trial is so significant and fundamental that our forefathers specifically provided for it in the Bill of Rights. The Sixth Amendment to the Constitution provides in part:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, . Utilizing these words as a guide, Congress, when it enacted the Uniform Code of Military Justice, encompassed both the effect and the spirit of the sixth Amendment in certain Articles of the Code.
Article 10 provides in pertinent part: When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him
or to dismiss the charges and release him.” Article 30 (b) states:
Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as
practicable. Article 33 states:
When a person is held for trial by general court-martial, the commanding officer shall, within 8 days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If the same is not practicable, he shall report in writing to such officer the reasons for delay.
A recent decision handed down by the Court of Military Appeals suggests an apparent dearth of compliance throughout the military services with the provisions of Article 33. The court stated:
While, under the particular circumstances of this case, we find neither a denial of due process nor prejudice to the substantial rights of the accused, we emphasize the duty and responsibility of every officer to comply with the mandates of the Uniform Code. In the past, we fear, Article 33 has been observed more often in the breach than in following its clear terms. In order to avoid 1. United States v. Wilson, 10 USCMA 398, 27 CMR 472 (1959). 2. 10 USCA | 810. 3. 10 USCA S 830. 4. 10 USCA $ 833.
future controversies in this area, we suggest that the attention of all concerned with the processing of court-martial matters be
forcibly drawn to its unambiguous command. Finally, if there is an unnecessary delay in the disposition of any case or if there is a knowing and intentional failure to enforce or comply with any provision of the Code regulating trial proceedings, punitive action against the individual concerned is available. From the foregoing UCMJ provisions it can be observed that Congress intended to afford to a military accused the benefits guaranteed in the Sixth Amendment.
With this statutory foundation of the law on the subject, let us direct our attention to the sundry interpretations given by the military tribunals.
When the issue of lack of a speedy trial is raised, the court, in determining whether an accused has been denied this right, must look at all the surrounding circumstances of the case, deciding each case on its own particular facts.' Initially, the court notes the length of time that elapsed before trial to determine if it was caused by the prosecution's lack of diligence or was due to the prosecution's "purposeful or oppressive design." * It has been suggested that the date from whico the government is held accountable, in determining whether it acted with reasonable dispatch in prosecuting the accused, is either the date the accused was confined or the date of formal presentment of charges, whichever occurred first. Neither the detention of an accused by civil authorities for a civil offense before preferment of any military charge, nor the date that the military reacquires control over the accused, fixes the beginning of the period of the government's accountability.
After establishing the period of time that the court must consider, the next and probably most difficult question to be decided is determination of the reasonableness of that time lapse.
The word “reasonableness”, as utilized in this test, means different things in different factual situations. In this connection Judge Ferguson has stated:
No definite numerical standard can be adopted which would be applicable to all cases. A delay of a stated period of time, while unreasonable in one case, may be perfectly proper in another where the circumstances are different.11
The Court of Military Appeals in determining the elusive meaning of the term reasonableness, summarized the multitude of factors which it must consider when it stated:
Considering all the circumstances which include the fact of confinement; the nature of the charges; the background of the se cused; the necessity for consideration of the charge and the investigation by the staff legal officer and the submission of his 5. United States v. McKenzie, 14 USCMA 361, 34 CMR 141 (1964). 6. Article 98, 10 USCA $ 898. 7. United States v. Hounshell, 7 USCMA 3, 21 CMR 129 (1956);
United States v. Callahan, 10 USCMA 156, 27 CMR 230 (1959);
United States v. Wilson, 10 USCMA 337, 27 CMR 411 (1959). 8. Pollard v. United States, 352 US 354 (1959). 9. United States v. Williams, 12 USCMA 81, 30 CMR 81 (1961). 10. Ibid. 11. United States v. Wilson, 10 USCMA 398, 403, 27 CMR 472 (1959),