(concurring)
I concur.
I am — fortunately or the reverse— *8in the position of agreeing in part, at least, with both of my learned colleagues. On the one hand, and in partial accord with the author of the dissenting opinion, I entertain doubt of the sufficiency of the findings on the basis of the case’s facts as selected by him. Yet on the other, if, in addition to these items, the court-martial had lawfully before it for the proper consideration of its members, and for legitimate use as bases of inference, the evidential matters detailed in the prevailing opinion, then I must be counted in the corner of its author. This, so far as I am concerned, is the crux of the matter.
In the dissenting opinion we are told that if the findings of guilty in this cause are sufficient as a matter of law they “must be upheld on the ground either that the absence was much prolonged, without satisfactory explanation, or because of the surrender at a distance of approximately 2000 miles, or a combination of the two.” If this is right, I am wrong. For my part I would add to the mentioned “combination of the two” — as does the prevailing opinion in substance and without extended argument — at least the following items: (1) That at the time of the inception of the accused’s unauthorized absence he was stationed at Camp Stoneman, California. (2) That at that time he was a member of a military unit denominated the 2349th Overseas Replacement Squadron. (3) That also at this time a state of hostilities characterized by armed conflict existed in Korea and that United States forces were engaged therein. It appears from the dissenting opinion that its author will not question the inclusion of this item. (4) That Camp Stoneman is what is known in military phrasing as a staging area — that is, a station at which preparation for overseas shipment is made. (5) That 'Camp Stoneman is approximately 45 miles from the San Francisco Port of Embarkation. Having done all of this —and bearing in mind the limitations on the scope of review .in this Court— I am unwilling to conclude that the findings of guilty of desertion here made were bottomed on insufficient evidence, and that we should set them aside as being unsupported by some substantial evidence as a matter of law.
Of course I am in complete agreement with the learned author of the dissenting opinion in his suggestion that we are confined in our consideration of the case to the evidence in the record and reasonable inferences therefrom. Since I have gone beyond what he, after careful consideration, appears to regard as the facts before the court, it appears incumbent on me to outline the theory by which I have seen fit to place them before the tribunal. At the outset it is noted that the dissent does not deny the applicability of the doctrine of judicial notice to the case before us. The record of trial nowhere reflects evidence of the distance between Camp Stone-man, California, and Brookley Air Force Base, Alabama, nor is evidence contained therein indicating the existence of armed conflict in Korea — yet the consideration of both of these facts is approved. Perforce they must have entered the scene via judicial notice or at least by operation of a closely related principle, to which the term judicial notice is frequently, if loosely, applied. Wigmore, Evidence, § 2566. Certainly military tribunals have from time immemorial given effect to matter capable of being noticed judicially —that is, assumed without evidence, but not specifically referred to in the record — and the practice is so familiar as to dispense with the necessity for citation of authority. If this constitutes permissible procedure as to the matters referred to above, then I suggest as well that the court-martial could have noticed judicially (1) that Camp Stoneman is a staging area and (2) that it is located within approximately forty-five miles of the San Francisco Port of Embarkation. I cannot see that any sort of problem can be thought to exist as regards item (2) above, for the process involved seems indistinguishable from the approved procedure utilized in determining the distance from Stoneman to Brookley— that is, from Pittsburg, California, to Mobile, Alabama. If the court-martial *9had not been aware immediately of the mileage involved in either of these instances, reference to an atlas was both possible and permissible. Wigmore, Evidence, § 2568a. A somewhat different situation may be said to exist with regard to the staging area nature of the accused’s station. However, if it is proper to invoke at all the pi'in-ciple apparently regarded — possibly without the strictest accuracy — by both the dissenting and prevailing opinions as that of judicial notice, I submit that it may be invoked as much to determine the mission of Camp Stoneman as to ascertain the distance between two geographical points. It is true that I may here be contemplating a somewhat specialized variety of the doctrine, rather than the one more commonly administered by civil courts. However, I am doing so with my eyes open if I am doing so at all. To my mind — and in the military justice scene — it is not necessai'y that the nature of Stoneman be generally notorious; it is enough if it is notorious in the military service. Moreover, in the present case infoi’mation concerning this fact might readily have been ascertained from available and authoritative official sources.
In this connection it is worthy of note that a court-martial — and certainly so prior to the adoption of the Uniform Code of Military Justice (Act of 5 May 1950, 64 Stat 108, 50 USC §§ 551-736) — partakes of the nature of both judge and jury, and real difficulties in applying principles developed in courts of the civilian community are to be recognized in a wide vai'iety of military legal situations. In earlier discussions herein of what is at least the legitimate cousin of the doctrine of judicial notice, as recognized in both civilian and military courts, the court-martial has been regarded principally in its judgelike aspect. It is now my purpose to suggest that it and its powers and functions may be viewed from another side — and in this connection the following language from Wigmore on Evidence, 3d ed., section 2570, is of interest as expressing a relevant principle the limits of which are uncertain in civilian as well as in military law administration:
“In general, the jury may in modern times act only upon evidence properly laid before them in the course of the trial. But so far as the matter in question is one upon which men in general have -a common fund of experience and knowledge, through data notoriously accepted by all, the analogy of judicial notice by the judge obtains here also, to some extent, and the jury are allowed to resort to this information in making up their minds.”
What has been said expressly and impliedly in the foregoing paragraphs leaves out of account only a treatment of the facts that at the time of his improper departure the accused was stationed at Camp Stoneman and assigned to an overseas replacement unit. These things the court-martial could have learned quite properly from an obvious source — for they appear in complete detail in Prosecution’s Exhibit #1, Extract Copy of Morning Re-poi't, which is regular in form and was admitted without objection. That this document constitutes prima facie evidence — aside from the extract reflected therein — that the accused is assigned as indicated, that the command is' located as indicated, and' that the report was submitted as indicated, is directly supported by a 1948 decision of the service conceimed in the instant case. United States v. Juris, 1 CMR 485, 488-9. See also United States v. Campbell, 1 CMR 362, 364, and United States v. Sustaite, 67 BR 389, 392. There is no disposition on my part to disagree with the following language from the Juris case, supra, and its propriety is certainly demonstrated by reflection on the intellectual processes necessarily involved in any utility of the extract copy as evidence.
“The extract copy of the morning report received in evidence was sufficient only to furnish prima facie proof that a Private Juris (first name and serial number not stated) absented himself without proper leave on 18 July 1942 from the 893rd School Squadron. The authenticating certificate furnishes *10prima facie proof that the 893rd School Squadron was located at Loekbourne Army Air Base, Lock-bourne, Ohio. The specification alleges that the accused, . . then assigned 893rd School Squadron, Lockbourned [sic] Army Air Base, Columbus, Ohio, did at Loekbourne Army Air Base, Columbus, Ohio, on or about 18 July 1942, desert the service . . .’: After an opportunity to offer any special pleas or motions was declined by the defense, the accused was arraigned upon the foregoing Charge and Specification, to which he pleaded not guilty. The identity of the accused appearing before the Court with the person named and described in the Specification was established, prima facie, by the arraignment itself. The accused was afforded full opportunity to enter a plea raising the question of such identity, and his failure to do so constituted a waiver of the issue, permitting the Court to proceed upon the prima facie showing of identity in the absence of affirmative evidence to the contrary (ACM 13, Baggett).”
I believe, therefore, that on the issue of intention not to return the court-martial had properly before it in one way or another, at least, the following facts: (1) A sixty-day absence without leave. (2) Termination of this ab.sence at a point approximately 2000 miles from the accused’s station. (3) A state of armed conflict in Korea involving United States forces. (4) An accused who was stationed at Camp Stoneman, California. (5) The station of the accused in use as a staging area. (6) The station of the accused approximately 45 miles from the San Francisco Port of Embarkation. (7) An accused who was a member of an overseas replacement unit. On the basis of these items lawfully before the tribunal for its consideration its members found an intention on the part of the accused .not to return to the service of the United States. We are now asked to say that this finding is based on no substantial evidence and that it should be set aside as an error of law. I cannot do this.
Two further subjects should be adverted to briefly. Agreement is expressed in the two accompanying opinions in this cause to probable inadequacies in the conduct of one or both of trial and defense counsel. With these strictures I am in hearty accord. This is not to say, however — -with particular respect to prosecution deficiencies — that I am willing to set aside as not based on some substantial evidence the findings in this case merely because the trial counsel did not perhaps perform his duties as competently as he might have done. It is noted that trial counsel in the cause was not a member of any bar, although defense counsel had been admitted to practice in one of the United States. By a similar token I am distinctly hesitant to treat the record in this case in an unjudicial manner — pretermitting any question of want of due process— merely because defense counsel conceivably might have protected his client’s interests more effectively than he did. It seems to me that the spirit of the system under which we are now working requires that records of trial by courts-martial should — in so far as consistent with considerations of discipline and military exigency — be measured by the yardstick of sound and recognized legal principles and practices as they are administered in civilian criminal courts. As I see it, this mandate cuts in every possible direction.
Reference is made in the opinion of the Chief Judge to the necessity for adoption of a better practice in the administration of the doctrine of judicial notice in military courts. With this I most warmly agree. Indeed the record of trial should show that a fact was noticed judicially, if such was the case. Likewise it is to be hoped that in future counsel wishing to profit by an invocation of the principle will affirmatively and specifically request that the fact in question be noticed by the court-martial. Another practice is distinctly inartificial, and tends to lead to difficulties similar to some of those involved in the present case.
In my opinion the question certified should be answered in the affirmative *11and the judgment of the board of review affirmed.