(dissenting):
I dissent.
I dissent on the ground that the evidence in this case is insufficient as. a matter of law to sustain the conviction of desertion. I agree with the broad statements of law set out in the first few paragraphs of the majority opinion. But I definitely disagree with both the recitation of the “facts” and the theories of law which follow.
A careful reading of Judge Latimer’s opinion indicates very plainly where the majority and I part company. They apparently believe, in spite of what is said elsewhere, that the accused should prove himself innocent, while I believe the law requires the government to prove its charge, and every essential ingredient of said charge, beyond a reasonable doubt.
In addition to this, the actual result of the majority opinion is to reduce the mandatory presumption of innocence to a mere permissive inference, to be drawn, or disregarded, as a court may desire.
I am deeply concerned with the discussion of the “evidence” which the majority finds in the record to support their approval of the conviction. The only evidence I find is that the accused left his squadron at Camp Stoneman, California, without leave and surrendered sixty days later at Brookley Air Force Base, Alabama. Reference is made to the accused being stationed “just a short distance from the San Francisco point of embarkation”; that the unit of the accused was one “for the men of the service who are scheduled for overseas duties”; and that it was reasonable for the court to infer “the accused was well aware of this fact.” These statements may well be true, but I as a judge do not know them to be true in this ease. There is no showing in the record of any of these “facts” which are improperly and, I think, unwarrantedly, assumed. Having established these facts”, it is then stated that the mere absence of the accused was consistent with “running away from the possibility of shipment overseas”; and that because the accused did not take the stand to explain his absence it was not unreasonable for the court to conclude that the accused “was seeking to avoid overseas shipment”. Except that I know as a matter of fact, that the majority opinions and my dissent are based on the same record of trial, I would be forced to conclude that the former had reference to some other record of trial in view of the ‘“facts” they have now judicially determined to exist. These “facts” are found to exist nunc pro'tunc as a basis for speculating the accused into prison. I am gravely concerned that the majority has found it necessary to engage in strained speculation and conjecture, and the introduction of “evidence” at this level, as a basis for sustaining the conviction in this case. There may have been substantial evidence available; evidence sufficient to prove guilt of desertion beyond any doubt. But such evidence does not appear in the record. My discussion is limited to the evidence in the record.
The majority opinion makes references to the lack of explanation of absence by the accused. I am unable to subscribe to the obvious implication of such references. The accused is not required to explain anything. It is the government which must prove guilt beyond a reasonable doubt. The accused was clothed in his fundamental presumption of innocence and was entitled to its. full protection until the government produced sufficient evidence to overcome it. In my opinion that point was never reached in this case.
I disagree also with the treatment of the circumstantial evidence rule wherein it is stated “a conviction would not result if there was a reasonable hypothesis of innocence.” Such a statement necessarily assumes that every conviction regardless of the evidence is good as a matter of law. I know of no ■ authority, and I make bold enough to say here, that there is none, for such a positioh. The almost universal rule regarding circumstantial . evidence, repeatedly affirmed by *12the courts, both federal and state, is, dence consistent with guilt and in-that there must be substantial evi-consistent with any reasonable hypothesis of innocence. This rule has been laid down even more strongly to the effect that the evidence must exclude every reasonable hypothesis but that of guilt;, and if the appellate court finds that the evidence in the record does not meet that test, it is the duty of the appellate court to reverse a conviction.1
With these references to the majority opinion I now address myself to the issues in this case, and I confine my observations to the record of trial.
The question of jurisdiction of this court was raised by the government, but it is plain that the Judge Advocate General of the Air Force had the right and the authority to certify this case to the United States Court of Military Appeals for review. It is unnecessary to discuss the proposition that the exercise of jurisdiction by this court will result in an ex post facto application of the review procedure in Article of War 50 (g) (Act of June 4, 1920, as amended) because Article 67 (b) (2) of the Uniform Code requires this court to review any case certified in accordance with the provisions of Section 67. Under this section the court is required to review “all cases reviewed by a board of review which the Judge Advocate General orders forwarded to the Court of Military Appeals for review; . . . .” Furthermore, the accused joins in the request that this court review the conviction. There is no merit to the government’s contention under these circumstances that this court is without jurisdiction to review it, nor can I attach any importance to the assertion that the law is ex post facto since the accused makes no complaint about its character and raises no question as to its illegality as an ex post facto law. Therefore, the government is certainly in no position to take advantage of any such claim.
At the trial of the accused, in support of the charge of desertion, the prosecution introduced Exhibit I to prove the inception of the absence without leave on October 23, 1950. The parties then stipulated that the accused surrendered to the military authorities on December 22, 1950. The prosecution then rested. The accused elected to remain silent. No other evidence was presented. The board of review, in its decision upholding the legality of the conviction, stated that the trial court could take judicial notice of the fact that the accused surrendered in Alabama more than 2000 miles away from the place from which the accused absented himself without leave, and that the trial court could and probably did take judicial notice of the existence of hostilities in Korea during the period of absence, that these facts together with the length of absence furnished a reasonable basis from which the court could infer an intent to desert the military service.
The trial court undoubtedly had the right to take judicial notice of the fact that Alabama is approximately 2000 miles away from California, and that a state of hostilities existed in Korea. There is no showing in the record that such notice was taken, but there is authority for an appellate court to presume that the trial court did take judicial notice of facts which are common knowledge. I believe that it would be better practice for the trial court to indicate that it had taken judicial notice of facts which might reasonably be disputed, but the mere fact of the failure of the trial court to so indicate in the record in and of itself does not deprive the appellate court of assuming that judicial notice was taken of the facts referred to by the board of review. The question, therefore, is presented whether or not the unauthorized absence of sixty days resulting in surrender- at a distance approximately 2000 miles away at a time when hostilities did exist in Korea without any other affirmative proof of an intent permanently to desert the military *13service is sufficient evidence upon which a conviction for desertion can be predicated.
If the finding of guilty of desertion in this case is sufficient as a matter of law, it 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. In regard to the proposition of surrender, it is noted that the various Manuals for Courts-Martial2 use the phrase “arrested or surrendered at a considerable distance from his station” as permitting the inference of intent to desert, while Winthrop refers only to “being apprehended at a long distance from his station”.3 I am inclined to agree with the view taken by Winthrop. Surrender alone, without some showing affecting its voluntariness, must be considered as favorable to the accused. I appreciate that circumstances in some other case may be such that there can be a voluntary surrender by an actual deserter. But each case must be decided upon its own facts.
It is noted that the present tendency is to construe distance in the light of modern transportation facilities.4 I subscribe to this policy and hold that distance alone, in a case of voluntary surrender, is not to be considered a determining factor.
In his brief, counsel for the accused maintains that this conviction should not stand because of inconsistency on the part of the court amounting to a deprivation of rights of the accused. It is stated that in a trial held one week before the instant trial the same court, except for a difference of two members, in the case of Myers, ACM 3921, 4 CMR(AF) 673, had found the accused, also charged with desertion, guilty of the lesser included offense of absence without leáve. The evidence in both cases was identical, i.e., that both accused left their stations at the same time and surrendered together at the same place; that the prosecution proved both cases by similar exhibits, and stipulations, with the accused in each case electing not to testify. The record of trial in the Myers’ case was forwarded to this court as an exhibit, and it bears out these contentions. Unquestionably the findings in the two cases are inconsistent. They may well be irreconcilable to reasonable men; but it is not within our province to disturb the finding in this case on that basis. The law does not require consistency in findings.5 Inconsistency of itself is not ground for reversal.6
Now we come to the question of whether sixty days unauthorized, unexplained absence, terminated by surrender 2000 miles away with a state of hostilities existing in Korea, is sufficient as a matter of law to warrant the trial ■ court in reaching the conclusion that the accused intended to permanently desert the military service. It has been the long-standing rule of all the services that a much prolonged unauthorized absence alone will, without satisfactory explanation, justify a trial court in drawing the inference of intent to remain away permanently.7 While the services agree on this rule, they are in conflict in their interpretations as to what constitutes a “much prolonged” or “protracted” absence.8 From the cases cited in footnote 8 it will be noted that *14.one line of authority has held that thirty-six days absence alone is not “much prolonged”, while another had held that seven days absence without further showing, will sustain a conviction of desertion. Winthrop9 sheds little light on what constitutes a “protracted” absence.
I am satisfied that in cases of this type no specific line of demarcation can be drawn upon which the offense of desertion can be predicated. To attempt to draw such a line would be unwarranted interference with the trier of facts. I am aware of, and in accord with, the proposition that absences of different lengths may vary in their significance according to times, conditions, and circumstances under which they take place.10 Here I pass only on the legal sufficiency of the evidence in this case.
The desertion charged in this case, the unauthorized absence with intent permanently not to return, is one of the most serious offenses • known to military law. In war times a person convicted of desertion loses his nationality,11 and is subject to the death penalty; at all times this offense is punishable by substantial periods of confinement,12 - dishonorable discharge, and other disabilities.13 A finding of guilty of this offense should never result from mere conjecture, as distinguished from a compelling inference fully justified by the facts.
It is noted that the Table of Maximum Punishments14 for the present offense provides for punishment for “Desertion: Terminated by Surrender —After absence of not more than 60 days.” We have already recognized that there can be a surrender by an actual deserter. Contrition or repentance by one who has committed a crime is not unusual. It is reasonable to assume that any desertion punishable under the cited provision would be susceptible of some affirmative proof as distinguished from inference or conjecture. It is also noted that this same table provides for punishment for “Absence Without Leave: For more than 60 days.” This provision is listed under the former Article of War 61 which covers “Absence Without Leave” only. There is no indication, then, that this punishment contemplates only those cases where the charge desertion involves absences of approximately 60 days, with no other evidence, and a court has found the accused guilty of the lesser offense of absence without leave. Rather the indication appears to the contrary. I do not consider this conclusive, but it is certainly persuasive that the framers of the Manual15 did not consider sixty days “much prolonged” under the provisions of paragraph 146a of the Manual. Also, it is interesting to note that the present manual has retained the same provision for punishment for “Absence Without Leave: For more than 60 days” but has deleted the former listing of “Desertion: Terminated by surrender— After absence of not more than 60 days.”16
In discussing length of absence the various authorities have held in substance: that the mere fact of unauthorized absence for a certain period is neither conclusive nor prima facie evidence of the intent to desert, but the proof of a prolonged unauthorized absence will permit the court to infer such intent from the fact of the long *15absence,17 i.e., the circumstances of the case. The necessary intent coupled with unauthorized absence constitutes the corpus delicti of the offense of desertion.18 These items the prosecution ivas required to prove beyond a reasonable doubt. The unauthorized absence of the accused affirmatively appears as a matter of record. There is no direct proof of any intent to desert. Such intent, if present in this case, must be inferred from the sixty days unauthorized absence terminated by surrender approximately 2000 miles away. Apparently the trial court found that such intent was present at some time during the absence of the accused. This finding of intent to permanently abandon the military service must be tested by the fundamental rules governing the use of such evidence.19
Assuming, but not conceding, that the sixty days absence without leave falls within the term “much prolonged” as used by the services,20 the evidence still must be legally sufficient to meet the requirements of the criminal law. Viewing the evidence in the light most favorable to the prosecution we must find that it was consistent with the finding of guilty and inconsistent with any reasonable hypothesis of innocence.21 The rule has also been laid down that there must be substantial evidence which excludes every other reasonable hypothesis but that of guilt.22 Regardless of which rule we adopt, the evidence of desertion in this case is not sufficient to comply with either. Admittedly the accused may have intended to desert at some time during his absence; he may have reached such a conclusion on more than one occasion; he may have actually been a deserter and suffered a change of heax-t. These things we do not know. We can only speculate upon them. But such speculation is insufficient to support a conviction. I cannot hold that the sixty days’ unauthorized absence terminated by voluntary sui'render 2000 miles away is, as a matter of law, inconsistent with the hypothesis that the accused was guilty only of absence without le.ave.
The court appears to reach the conclusion that because the triers of fact have reached a verdict of guilty, that this, in itself, proved that there was competent evidence before them upon which reasonable minds might. differ and which would therefore justify their reaching the verdict.
But the mere fact that a jury has reached a verdict in either a ci'iminal or a civil case, by no means proves that it had competent legal evidence before it. There are innumerable cases, in both state and federal coui-ts, where juries have reached verdicts upon what they believed was competent and sufficient evidence, where the verdict has been set aside by an appellate court because the record disclosed that there was no competent legal evidence upon which the jury could predicate its verdict.
The majority seems to lose sight of the fact that the judge has a duty to perfoi'm as well as the jury (Wig-more, Evidence (Third Edition), §2487, par. 2).
“The treatment of the situation and the operation of the ímles, can best be comprehended by keeping this consideration in mind, namely, that the opportunity to decide finally upon the evidential material that may be offered does not fall to the jury as a matter of course; that each party must first with his evidence pass the gauntlet of the judge; and that the judge, as a part of his function in administering the law, is to keep the jury within the bounds of reasonable action. In short, in order to get to the jury on the issue, and bring into play the other burden of proof (in the sense of the risk of non-persuasion of the jury), both parties alike *16must first satisfy the judge that they have a quantity of evidence fit to he considered by the jury, and to form a reasonable basis for the verdict. This duty of satisfying the judge is peculiar in its operation, because if it is not fulfilled, the party in default loses, by order of the judge, and the jury is not given an opportunity to debate and form conclusions as if the issue were open to them.”
It is my contention that in this case there is no legal competent evidence to indicate that the accused intended permanently to abandon the military service.
It is said by the majority that the government should not be content to rely on “a paucity of facts.” With that, I wholeheartedly agree. The reference to the inference which may arise from the possession of recently stolen property is an unhappy one, because the great weight of authority repudiates any rule of presumption in this type of case (Wigmore, Evidence (Third Edition), § 2513).
With the language that follows that reference I am in complete disagreement. It is inconsistent to say that the accused does not have to testify in his own behalf, and in the next breath pontificate, that if he doesn’t he must take the consequences. That is not the law. The accused had a perfect right not to explain the reason for his absence, and for such failure, no inference could be drawn against him. Let me also note the specific language of Judge Latimer:
“It seems almost inconceivable that evidence concerning the activities of the accused during his absence could not have been readily obtained and presented.”
That is exactly the point in this case. Evidence could have been produced about what the accused did in Alabama; what he wore; what he said; whether he tried to get a job, etc.; evidence which if produced, would have been competent legal evidence to prove his intention to permanently abandon the military service if such an intention ever existed. But this evidence the government did hot produce. The prosecution failed to prove its ease, and the last paragraphs of the opinion indicate this in plain, unmistakable language.
I reiterate, the question at issue in this case is whether or not the government has proved the charge of desertion. The accused is under no obligation to prove that he is not guilty of the charge of desertion. Every accused is presumed to be innocent of the charge preferred against him until he is proven guilty beyond a reasonable doubt. This is his constitutional right. The burden is upon the prosecution to prove its accusation, and every essential ingredient of its charge, beyond a reasonable doubt. Desertion is the act of a member of the .armed forces leaving his station of duty without authority with the intention of not returning.23
The charge of desertion necessarily implies an intention to permanently abandon the military service. Therefore, to sustain its charge in this case the government must prove beyond a reasonable doubt that the accused left his station without authority, intending permanently to remain away therefrom.
The proof presented by the Government amounts to this, and this only, that the accused, at a time when hostilities in which the United States was engaged existed in Korea, left his station in California without authority and went to Alabama, approximately 2000 miles away, and there surrendered sixty days later. There is no affirmative evidence of desertion.
Is the fact then that the accused was 2000 miles away from his station, sixty days after he left it without authorization, in and of itself, sufficient proof of the crime of desertion?
I am of the opinion that neither fact in and of itself proves beyond a reasonable doubt that the accused intended to remain permanently away from the military service, and that when taken together, both facts, without any *17other evidence, do not constitute proof beyond a reasonable doubt that the accused intended permanently to remain away from the military service. There may have been facts which if properly developed would have shed more light upon the true picture in this case, but we cannot go beyond the record.
The accused is guilty of the offense of absence without leave, but the government has not proved beyond a reasonable doubt that he is guilty of the charge of desertion. The conviction of desertion should be set aside, and the case remanded to the Judge Advocate General of the Air Force for appropriate action.
Scott v. United States, 145, F. 2d 405, 408, (C. A. 10th Cir.); United States v. Sower, 17 BR 167, 170. State v. Blood, 68 R.I. 160, 26 A. 2d 745; State v. DiNoi, 59 R.I. 348, 195 A. 497.
MCM, U. S. Army 1928, p. 144; MCM, U.S.A.F. 1949, p. 199; MCM, U. S. 1951, p. 314.
Winthrop, Military Law and Precedents (2d ed., 1920 reprint), 639; Winthrop, Abridgement of Military Law (1887) 252.
United States v. Swenson, 3 BR 43 (1931); United States v. Sower, 17 BR 167 (1943).
Dunn v. United States, 284 U.S. 390, 393.
Young v. United States, 168 F. 2d 242, 246. (C.A.—Cir.)
MCM, U. S. Army, 1928, p. 143; MCM, U.S.A.F., 1949, p. 199; MCM U. S. 1951 p. 313; Nav. Dig. (1916) p. 172; CG Law Bull. 141 p. 6; Winthrop, Military Law and Precedents, 638.
a. Length of absence insufficient: United States v. Green, 2 CMR 523 (28 days, Sur.); CMO 4, 1927, 14 (5 days del.); CM 123404, Standlea (36 days, *14Arr.); United States v. Swenson, 3 BR 43 (23 days, Sur.); CG Law Bull. 170 p. 6 (45 days, app. plus other ev.); United States v. Kennedy, 17 BR 305 (32 days, Sur.).
b. Absence sufficient: United States v. Trejo, 2 CMR 591 (140 days, App.); CMO 1, 1943, 64 (7 days, Sur.); CMO 2, 1950, 36 (8 days, Sur.); United States v. Gerber, 10 BR 107 (91 days, Sur.).; CG Law Bull. 141, p. 6 (3 mos., App.); CG Law Bull, 155, p. 12 (56 days, Sur.)
Winthrop, Military Law and Precedents, supra.
Winthrop, Military Law and Precedents, 638.
8 USCA § 801.
MCM, U.S.A.F. 1949, p. 134; MCM US, 1951, p. 220.
10 USCA § 906; 34 USCA §1431, et seq.; 38 USCA § 693g.
MCM, U.S.A.F. 1949, p. 134.
MCM, U.S.A.F. 1949.
MCM, U.S., 1951, p. 220.
Winthrop, Military Law and Precedents, supra, 638; Dig. Op. JAG 1921-40, p. 267; MCM, USCG, p. 118.
MCM, U.S.A.F. 1949, p. 198.
Wharton, Criminal Evidence (11th ed.), p. 1496, 1605, et seq.
Note 7, supra.
Scott v. United States, 145 F. 2d 405, 408, (C.A. 10th Cir.); United States v. Sower, supra, 170; State v. Blood, 68 R. I. 160, 26 A. 2d 745; State v. DiNoi, 59 R. I. 348, 195 A. 497.
Van Gorder v. United States, 21 F. 2d 939, 942, (C.A. 8th Cir.).
6 C.J.S. 426, § 40 (a); Hanson v. South Scituate, 115 Mass. 336; Winthrop, Military Law and Precedents (2d ed.) 637.