(dissenting):
I concur with the majority opinion insofar as it timidly intimates that the Manual requires as corroboration of a pre-trial confession substantial evidence that the crime charged has been committed by someone. Further, that this proof must encompass every element of the crime excepting, of course, the criminal agency of the accused. This statement of the rule is fully in accord with the Manual and the better reasoned federal decisions. Forte v. United States, 94 F2d 236 (CA DC Cir); George v. United States, 125 F 2d 559, 563 (CA DC Cir); Ercoli v. United States, 131 F2d 354, 356 (CA DC Cir). It is clear to me that these decisions and the Manual statement of the rule are irreconcilable with the government claim that the corpus delicti of desertion is made out solely by a showing of the unauthorized absence alleged. Proof of absence without leave is just as consistent with desertion with intent to remain absent permanently and desertion with intent to avoid important service as it is with desertion with intent to avoid hazardous duty. These are separate crimes. I take it that the reason for the rule requiring corroboration is to prevent conviction for a crime which never actually occurred. I quite fail to see how it is possible to satisfy this reason for the rule unless the proof outside the confession shows substantially that the specific offense charged has been committed. The government’s statement of the rule obviously does not satisfy this basic test.
The Manual requires for the crime of desertion with intent to avoid hazardous duty proof that the accused was absent without' leave as alleged and that he intended to avoid the hazardous duty alleged. MCM 1949, paragraph 146a. This latter element at least requires evidence that the accused knew with reasonable certainty that he would be required for such hazardous duty. MCM 1949, paragraph 146a. The total relevant evidence here consists of petitioner’s confession together with morning report extracts showing the period of absence. The majority finds sufficient evidence of the necessary intent in the morning report exhibit heading showing that petitioner was attached at the time of departure to the Japan replacement training center, *1308042d Army Unit (pipeline) at Camp Drake, Honshu, Japan. By the use of presumptions and a highly questionable application of the doctrine of judicial notice the majority infers from this that petitioner knew of his imminent departure for Korean combat duty.
I have already made it clear that I, contrary to my colleagues, will not stretch the record to plug loop-holes in deficient prosecution cases by the expedient of judicial notice. I know not where the majority obtained the information that petitioner’s unit served only to process personnel for combat duty in Korea. It is not in the record, nor is it adverted to in the briefs of counsel. My dissent in United States v. McCrary, (No. 4), 1 USCMA 1, 1 CMR 1, makes it clear that I am unalterably opposed to adding proof to the record on the basis of information obtained from outside sources by judges at the appellate level. I note that the majority, while approving the proper procedure for utilizing judicial notice, refuses to enforce it.
But the majority is not content to stop here. The opinion follows a circuitous path, presuming from presumptions, to get from the morning report heading to a finding that the record shows sufficient proof of the intent to avoid hazardous duty. To reach this result, the majority presumes: (1) that the army unit does exist for the purpose now ascribed; (2) that the court knew of the consequences attendant upon attachment to this unit; (3) that the court took judicial notice of this; and (4) that they considered this to be satisfaction of the rule requiring corroboration. Besides my reluctance to give ex post facto effect to the doctrine of judicial notice, I do not believe it to be sound appellate judicial practice to pyramid presumptions of fact in this manner.
If petitioner was, in fact, scheduled for duty in Korea, the prosecution could have easily produced affirmative evidence to that effect. I would be derelict in carrying out the responsibility which I believe Congress has entrusted to me if I did not note with grave misgivings a tendency on the part of the government to rely on a bare minimum of evidence in proving its cases. This, to me, is especially reprehensible in cases such as this, where there is no limitation on the punishment which the court may impose.
If a rule is worth having, it is worth enforcing. In my opinion the majority is giving lip-service only to the rule requiring corroboration. It is not for us to avoid this rule either directly or by subterfuge. It has been strictly enforced by the federal courts, and it is accepted in the majority of American jurisdictions. If that is not enough, the President, through the Manual for Courts-Martial, has made it binding upon us. The majority makes it ineffective in desertion cases by seizing upon facts, if they are facts, outside the record to supply what the government did not prove. I regret my inability to persuade my colleagues of the serious consequences of such a course. My fears, expressed in my dissent in United States v. McCrary, supra, have already been substantiated. I would reverse this conviction for failure to establish, outside the confession, the corpus delicti of the offense charged.