The prosecutor appealed, arguing that a military court was the wrong forum to try the case for two reasons: none of the men were military personnel in 1976, and the crime of qualified homicide or aggravated homicide cannot be tried by a military tribunal. The Military Court of Appeals agreed and surrendered jurisdiction, rendering the acquittal moot. The Judge ruled that the accused "are civilians and the crimes imputed to them are governed by the penal (and not the military) code... Civilians and common law crimes are not subject to the dispositions of the Code of Military Justice."