Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A special court-martial convicted the accused of the wrongful disposition of an Air Force parka alleged to be "military property of the United States," and of the larceny of the same article at the same time, in violation of Articles 108 and 121, Uniform Code of Military Justice, 10 USC § 908 and 921 respectively. We granted review to consider whether the charges are mul-tiplicious.
On February 10, 1956, the accused desired to spend the night with a lady of pleasure. He had no funds. However, she agreed to accept, as security for payment, a parka which had been issued to the accused as part of his military equipment. The pledge was to be redeemed on pay day, which was about a week later. Pay day passed without action by the accused. In May, the accused was directed to turn in his parka to base supply. Thereupon, he attempted to reclaim the garment from his lady friend. He learned that she had sold it about a month after the date agreed upon for redemption. As a result, the accused was charged with the wrongful disposition of military property by pawning, and with the larceny of the same property by the same act.
For the purpose of punishment, offenses are, in a general way, considered to be separate, if each has an element of proof not required for the proof of the other. United States v Larney, 2 USCMA 563, 10 CMR 61. In pertinent part, Article 108 provides that any person subject to the Uniform Code who, without proper authority, "sells or otherwise disposes of . . . any military property" of the United States shall be punished as a court-martial may direct. Under Article 121, any person subject to the Code who "wrongfully takes . or witholds, by any means, from the possession of the owner or of any other person any . . . article of value of any kind . . . with intent permanently to deprive . . . another . of the use and benefit . . . or to appropriate it to his own use or the use of" another, is guilty of larceny; or, if his intent is temporarily to deprive the owner or possessor of the use or benefit of the article, he is guilty of wrongful appropriation.
On first reading, it would seem that each offense requires proof of a fact not required for proof of the other. Thus, Article 108 requires that the property be military property, a fact which is not essential to the proof of an Article 121 offense; and the latter requires proof of a specific intent, a fact not essential to the proof of a charge under Article 108. More critical analysis, however, reveals the differences to be illusory when applied to a situation in which there is but one act by the accused. No example has been presented to us, nor have we been able to imagine one, in which the disposition of the property of .another does not disclose an intent to transfer ownership or possession either temporarily or permanently. In United States v Kubel, 1 USCMA 645, 5 CMR 73, we considered the factual inference that could be-drawn from the sale of property. We there said (page 648):
. . An unconditional sale is generally understood to imply a transfer of ownership with the purchaser acquiring the right to deal with the property as his own. Implicit in such a transaction is an intent to forever deprive the true owner of his property. Particularly is this true when the sale is conducted surreptitiously."
Similar reasoning applies in the case of other absolute dispositions, as, for example, a gift or an exchange. So, too, if the accused transfers less than absolute ownership, his act necessarily supports the inference that he intended temporarily to deprive the owner of the use or benefit of the property.
From the standpoint of proof, therefore, there is no difference between the two offenses. Evidence sufficient to establish an act of wrongful disposition would be sufficient to prove the accused's intent. Thus, aside from the character of the property, inevitably the "evidence sufficient for conviction under the first charge would . . . have convicted under the second." Gavieres v United States, 220 US 338, 343, 55 L ed 489, 31 S Ct 421 (1911). See also United States v Redenius, 4 USCMA 161, 15 CMR 161; Normandale v United States, 201 F 2d 463 (CA 5th Cir) (1953). And, when we add the property element, the interrelation of the two offenses is even more forcefully presented. Here, both charges allege that the parka was "military property of the United States." Apparently realizing that this allegation raises the question of the imposition of punishment for both a principal and a lesser included offense, the Government argues that the allegation was "superfluous . to the proof" of the larceny. Rejecting a somewhat similar argument in another multiplicity case we said:
". . . While an allegation of an aggravating factor may be surplus-age to a principal offense, it may satisfy an element of the lesser. Therefore, we conclude that where, as here, the allegations of the specification are broad enough to permit proof of the use of a deadly weapon, and its use constitutes the force and violence of the robbery charge, an aggravated assault is a lesser crime included within the latter." [United State v McVey, 4 USCMA 167, 174, 15 CMR 167.]
Unquestionably, Congress can make "each stick in a faggot a single criminal unit," but when it is doubtful as to whether it intended to do so, the doubt should be "resolved against turning a single transaction into multiple offenses." Bell v United States, 349 US 81, 83-84, 99 L ed 905, 75 S Ct 620 (1955). The difference between the sale or other unauthorized disposition provision of Article 108 and the general provisions of Article 121, when only one act is committed is a difference more of form than of substance. We are persuaded then that when a single act violates both Articles, it was not intended that the offender be subjected to two punishments. We hold, therefore, that the charges are multiplicious.
The sentence is set aside. The record of trial is returned to The Judge Advocate General of the Air Force for resubmission to a board of review for redetermination of an appropriate sentence in the light of this opinion.
Judge FERGUSON concurs.
In reaching this conclusion, we have not overlooked the fact that under the Table of Maximum Punishments prescribed by the President, a wrongful disposition of a temporary nature, as, for example, a loan or pledge (see Winthrop, Military Law and Precedents, 2d ed, 1920 Reprint, pages 698, 708-709) carries a more severe penalty than that for a violation of Article 121. However, the considerations that may flow from this difference have no bearing upon our problem. Under the Uniform Code, the President has the responsibility of fixing the limits of punishment (Article 56, Uniform Code of Military Justice, 10 USC § 856), and he has, in other instances, predicated the punishment upon the nature of the property involved. Thus, misappropriation of property of a value of more than $50.00 is punishable, in part, by a bad-conduct discharge and confinement for not more than six months, while misappropriation of a motor vehicle subjects the offender to a dishonorable discharge and confinement at hard labor for two years.