(dissenting):
I dissent.
In view of the fact that I believe the opinion of the Court announces a rule which permits us to invade the province of the court-martial and weigh the evidence to arrive at a result, a function which Congress specifically denied us, I am compelled to dissent.
Before dealing with the principal issue involved, I desire to divorce myself from two concepts which, while unnecessary to the decision, seem to announce questionable principles. The first is found in the following language: “However, we should not have said there, we did not intend to say there, nor did we say there, that their admin*150istration by such agencies [trial forums] is above and beyond the supervision of an appropriate appellate tribunal — by this Court, in fact, although limited to ‘action only with respect to matters of law.’- To hold the converse would effectively deprive appellate courts, including this one, of any sort of effective control over subordinate elements of the judicial scheme in an important area of law administration.”
I know not whether the words “supervision” and “control” are used in their ordinary sense, but if so, then this Court assumes far more power than I can find delegated by Congress, and more than other appellate tribunals which have not been given such sweeping authority by legislation. Courts-martial and boards of review are the fact-finding bodies of the military system and they are free to determine questions of fact independently and without interference, control, or supervision by this Court. While our decisions, on matters of law, are binding on them, we do not direct their fact-finding activities and we should not attempt to do so. Moreover, they should not be led to believe that we might have the power to interfere as this has a tendency to destroy their independence. If I have misunderstood the principles enunciated and if all the Court intends to convey by the quoted language is that we have the right to review the record to determine whether there is some substantial evidence to support the finding, then I have no reason to disagree. But I' am concerned that the concepts go much further than that when the majority of the Court seeks to fortify the principle by relying on authorities treating with the powers of trial judges. I believe it is generally accepted doctrine that trial judges have much greater latitude in granting new trials on the weight or sufficiency of the evidence than do appellate tribunals. Accordingly, if we see ourselves as trial judges and operate on that theory we shall soon become an appellate jury.
The second concept is exposed in these words: “In- addition, the evidence necessary for the conviction’s survival must be substantial. But even this is not enough, if by the term is meant barely more than some —• i.e., a scintilla —and meant as well that substantiality is necessarily to be discerned by observation through spectacles directed at only one presentation of the controversy.”
We are already plagued with a difficult problem in differentiating between “some substantial” evidence and a “scintilla of” evidence; and now, we are given “barely more than some” evidence to measure. Is this measure between a scintilla and some substantial evidence; or, is it in excess of the latter? Or, is it a method by which this Court is lifted to a preferred status and placed on a different level from that of other appellate courts in that we become a fact-finding body by the simple expedient of creating standards of quantity and quality which are higher than those of other judicial systems? •
I would have no hesitancy in arrogating to this Court greater powers than are enjoyed by other federal appellate tribunals if I were of the opinion that Congress had intended to grant us that power: However, the Congressional hearings and the provisions of the Uniform Code of Military Justice force a contrary conclusion. It can be argued that because members of courts-martial and boards of review are military men they are more inclined to find facts against an accused than are civilian jurors, and that for this reason we must require a higher degree of proof to convict than do civilian courts. Assuming, but not admitting, that the inclination to more readily resolve facts against the accused is a vice of the military system, it was one which was well known to members of Congress, and had they determined that the triers of fact were using an improper standard because of their military status they should have granted us the right to weigh the evidence. As I shall point out, Congress specifically denied us this power; and, this being a matter of policy, it is controlled by Congress not by this Court.
Article 67 of the Uniform Code of Military Justice, 50 USCA § 654, contains the following provision:
“The Court of Military Appeals *151shall take action only with respect to matters of law.”
This provision was written in the Act after thorough debate before, and careful consideration by, the subcommittees of both Houses. I quote from page 1270 of the Report of Hearings before the Armed Services Subcommittee of the House, Index and Legislative History, Uniform Code of Military Justice. The article being discussed was Article 67:
“The Judicial Council [now this Court] takes action only with respect to matters of law. In this, it differs from the final appellate tribunals now set up in or proposed for the Departments.”
In the Report of the Senate Committee on Armed Services, supra, p 29 the same language' is used.
Professor Edmund M. Morgan, Jr., of the Harvard University Law School, who was chairman of the special committee selected to draft a proposed uniform code of military justice in 1948, in making his report to the subcommittee of the House of Representatives, made the following statement in answer to a question by Representative Durham. I quote from page 609 of the House Hearings:
“Mr. Durham: Who passes on the question of law?
“Dr. Morgan: Why the judicial council [Court] would. That is, the court of last resort would determine whether it was a question of law or a question of fact. And as you probably know, Congressman, it is a question of law whether, there was any evidence upon which the tryer of fact could reasonably find a defendant, [sic] as in the civilian court.
“Under our system, they would not pass on the weight of the evidence in the sense that they could set aside a finding because they thought it was against the weight of the evidence. They could set aside a finding of guilty only in case there was no evidence —”. (italics supplied)
A fair reading of the Act and a study of its legislative history clearly points to the principle that Congress intended to place this Court on the same plane and with the same limited power of review as that possessed by the United States Courts of Appeals. I can find nothing recorded which would indicate that we were to place ourselves on a different level for fact-finding purposes. On the contrary, I can cite at least six places in the recorded proceedings of hearings before the committees of Congress where attention was called to the fact that this Court was being handicapped by limiting its review to questions of law. In the interest of brevity, I quote from only one witness:
“In the legal profession there has always existed great dissatisfaction with the limited power of the circuit court of appeals in criminal cases, which refuses to disturb a verdict if there is substantial evidence to support it. In view of the fact that this proposed legislation is curative in nature, it is submitted that the expansion of the authority of the Military Court of Appeals over facts will be a most important element of the proposed reforms.” (Senate Hearings, p 188, supra).
Accordingly, if we hold that we can weigh the evidence on scales tilted in favor of the accused then we become the third fact-finding body in the military judicial system and legislate unto ourselves powers which a fully informed Congress specifically refused to grant.
In summation of my arguments on this point, I contend the Court’s opinion concedes that Congress, by express words, limited this Court to questions of law, but then escapes the effect of the limitation by adopting an artificial standard of. proof which permits a review of the evidence, not for the purpose of determining whether there is some substantial evidence to permit reasonable men to return a finding of guilty, but for the, purpose of determining whether there is sufficient to fill a mold which is tailored to meet this Court’s specifications.
Based upon my belief as to our proper function, I argue, as I did in the case of United States v. McCrary, (No. 4), 1 USCMA 1, 1 CMR 1, that certain *152principles of law are for the guidance of trial tribunals, and that they do not necessarily fit in the scheme of appellate procedure. In this connection, I have special reference to the rule which is quoted in the Court’s opinion to the effect that there must be substantial evidence which excludes every other hypothesis but that of guilt, and that the evidence must establish the guilt of the accused beyond a reasonable doubt. Admittedly, these principles have been announced by appellate tribunals, and it is difficult to reconcile many of the statements made unless they are interpreted as guides to be used by fact-finding bodies.
Rather than discuss the cases cited in the Court’s opinion, I am going to set out the principles which ought to guide us in considering cases on review. In support of these principles I shall quote from some cases which specifically pass on the power of an appellate court to review questions of fact. I am convinced that the better rule to be used by this Court in circumstantial evidence eases is this: If there is some substantial evidence in the record which permits the court-martial to conclude the accused is guilty beyond a reasonable doubt then we are not permitted to reverse because we might or can draw a different conclusion. This rule might appear to clash head-on with the principles of law which deal with the proposition that the evidence must exclude every reasonable hypothesis of innocence. If so, then I prefer to follow the former, as I believe the after-cited cases, which support that rule, announce the more persuasive reasoning.
In Curley v. United States, 160 F2d 229, 232, the court stated:
“It is true that the quoted statement seems to say that unless the evidence excludes the hypothesis of innocence, the judge must direct a verdict. And it also seems to say that if the evidence is such that a reasonable mind might fairly conclude either innocence or guilt, a verdict of guilt must be reversed on appeal. But obviously neither of those translations is the law. Logically, the ultimate premise of that thesis is that if a reasonable mind might have a reasonable doubt, there is, therefore, a reasonable doubt. That is not true. Like many another rule become trite by repetition, the quoted statement is misleading and has become confused in application.
“The functions of the jury include the determination of the credibility of the witnesses, the weighing of the evidence, and the drawing of justifiable inferences of fact from proven facts. It is the function of the judge to deny the jury any opportunity to operate beyond its province. The jury may not be permitted to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy. The critical point in this boundary is the existence or non-existence of a reasonable doubt as to guilt. If the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal, because no other result is permissible within the fixed bounds of jury consideration. But if a reasonable mind might fairly have a reasonable doubt or might fairly not have one; the case is for the jury, and the decision is for the jurors to make. The law recognizes that the scope of a reasonable mind is broad. Its conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond reasonable doubt may lie fairly within the limits of reasonable conclusion from given facts. The judge’s function is exhausted when he determines that the evidence does or does not permit the conclusion of guilt beyond reasonable doubt within the fail-operation of a reasonable mind.”
The Supreme Court of Indiana, in the case of Inman v. State, 223 Ind 500, 62 NE2d 627 (1945), stated the rule in the following language (p 628) :
“Appellant invokes the rule that in cases where circumstantial evidence is relied on the evidence must be such as to exclude every reasonable hypothesis of innocence. Cavender v. State, 1890, 126 Ind 47, 48, 25 NE *153875; Osbon v. State, 1937, 213 Ind 413, 424, 13 NE2d 223; Falk v. State, 1914, 182 Ind 317, 321, 106 NE 354; Robinson v. State, 1919, 188 Ind 467, 471, 124 NE 489. However, it has been held'that this rule is applicable to the trial court and not to the consideration of cases upon appeal in this court. Wrassman v. State, 1921, 191 Ind 399, 402, 132 NE 673; Gears v. State, 1931, 203 Ind 380, 394, 180 NE 585; Rector v. State, 1937, 211 Ind 483, 492, 493, 190 NE 172, 7 NE2d 794.”
In State v. Dennis, 159 P2d 838 (1945), the Supreme Court of Oregon stated at page 841:
“The question before this court, however, is not the same as that which was before the jury. We are not directly concerned with the weight of the evidence, .nor with the conflicts in the testimony, nor with the credibility of the witnesses. It is our duty to determine if there was sufficient circumstantial evidence of guilt from which the jury, in the performance of its function as triers of the fact, could properly find a verdict of guilty. State v. Rosser, 162 Or 293, 86 P2d 441, 87 P2d 783, 91 P2d 295. We weigh and examine the evidence only to the extent necessary for the performance of this duty.”
In People v. Newland, 15 Cal2d 678, 104 P2d 778 (1940), the Supreme Court of California stated at page 780:
“As early as the case of People v. Muhly, 15 Cal App 416, 114 P 1017, the correctness of the statement in the Staples case was questioned and limited, in view of the constitutional provision making the jurors the exclusive judges of the facts. It was there said, 15 Cal App at pages 418, 419, 114 P at page 1018: ‘The principle enunciated in the Staples Case is undoubtedly proper to be given as an instruction to the jury. . . . But we do not think it can be accepted, or was intended to be accepted, as a rule of universal application to guide the appellate court in all cases arising out of or dependent upon circumstantial evidence. . . . We do not understand that case to hold that, where the circumstances are such as to reasonably justify the inference of guilt, the case will be taken from the jury because an inference of innocence might also reasonably have been drawn. Between these two inferences the jury must choose, and it is only where the evidence obviously does not warrant the inference of guilt that the court will interfere. This must be so, or the weight of the circumstantial evidence, and the inferences to be drawn from it in almost every case, must finally be determined by the appellate court, thus making the court the arbiter of both law and fact. In our judgment a verdict of a jury, and the judgment of conviction based upon circumstantial evidence, come to us as any other verdict and judgment, clothed with like presumption of support; and, unless we can say that the inference of guilt drawn from the evidence was wholly unwarranted, we cannot interfere.’ ”
In Abrams v. United States, 250 US 616, 619, 63 L ed 1173, 1175, 40 S Ct 17, the Supreme Court of the United States said:
“The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there is no substantial .evidence in the record to support the judgment upon the. verdict of guilty and that the motion of the defendants for an instructed verdict in their favor was erroneously denied. A question of law is thus presented, which calls for an examination of the record, not for the purpose of weighing conflicting testimony, but only to determine whether there was some evidence, competent and substantial, before the jury, fairly tending to sustain the verdict.”
In line with the reasoning of these cases I would not test the sufficiency of the evidence to determine whether I might conclude there was some hypothesis upon which the accused might have been found innocent, but rather I would weigh it to determine whether the inferences which the court-martial could have reasonably drawn from the established facts and circumstances were within the permissible limits accorded *154to those bodies which pass on questions of fact.
At times appellate courts, as in this decision, lean heavily on the rule that a jury (court-martial) may not be permitted to reach a verdict based on suspicion, conjecture and speculation. Certainly, no one would contend that such was not the law. But, some appreciation must be given to the application of the rule. Every finding based on disputed questions of fact .or circumstantial evidence involves some degree of conjecture and speculation. While the following quotation from the case of Lavender v. Kurn, 327 US 645, 653, 327 L ed 916, 922, 66 S Ct 740, deals with a . civil action, no one should quarrel with the rationale expressed therein:
“It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw dif-erent inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error, appear.”
The opinion of the Court seeks to avoid the logic of this quotation by stating it is suggested loosely in a civil case and we are here dealing with a criminal matter. I used the statement because I believed it succinctly and nicely announced a principle that is applicable in all types of actions. If it is inapplicable to criminal cases then I ask how any conviction based on circumstantial evidence can be sustained and how conflicts in evidence can be reconciled.
The most I can claim for the evidence in this case is that it is sufficient to permit reasonable men to find the accused guilty beyond a reasonable doubt. I can not say that there is not some speculation and conjecture involved. But, if this Court is to adopt the rule that the evidence must be such as to eliminate those elements, then we would be required to reverse practically all factual cases.
In analyzing the testimony to cast doubt upon the finding of guilty the Court makes two attempts to weaken the government’s case, which, I believe, are subject to challenge. The first is that the only possible theory that could sustain the court-martial finding of guilty would be that the accused “placed his name on MPO 224 with fraudulent intent and thereafter repented or for other reasons sought to sever the thread of misconduct he had begun to spin.” It may be that I am required to exhibit unusual imagination to set forth other theories, but I believe not. I' can at least suggest one. If an accused is conceiving a plan for the purpose of committing a crime, he quite often considers taking some action which strongly points to his innocence. Some act is usually taken which permits him an escape route in the event of suspicion. In this particular instance, if the accused conceived a plan to defraud the government by filing a false' claim he could, by the expedient of immediately placing his name on a discrepancy list, cast doubt on his participation. If the falsity were discovered, he could claim good faith in presenting the discrepancy list; and, if it escaped unnoticed, he could benefit by the crime. This is not after-repentance; this is pre-crime planning. I suggest in this connection that regardless of which theory appears the more reasonable, the duty to reconcile the apparent inconsistent conduct is placed on the court-martial and not on this Court.
The second attempt is by attacking the credibility of PFC. Evans. In support of that attack certain of his testimony is quoted to show inconsistent acts and statements. The preceding questions and answers, however, give a somewhat different complexion to this testimony. The Court quotes, that he “was not under oath then,” and “I might not have been telling the truth” at that time. The questions and answers which fully develop the matter are as follows:
“Q. Do yoú recall having conversation on or about 26 March in the *155presence of Lt. Holt, Staif Sergeant Stroud, and 2d Lt. Jackson?
“A. I do, sir.
“Q. Do you recall that they had MPO 224 and asked you about it?
“A. That is true, sir.
“Q. Do you recall telling them you didn’t think you typed it?
“A. Sir, I wasn’t under oath then.
“Q. What did you say?
“A. I said I wasn’t going to say.
“Q. Whether you typed it or not?
“A. That is true. I might have said it that way. I will say I might not have been telling the truth.”
The questions asked relate to statements made on a pre-trial examination, when criminal responsibility was being pursued. It is possible that PFC. Evans at that time did not care to involve anyone, and therefore, sought not to say who typed the order. It is conceivable at that time he might have been trying to shield the accused. However, when placed on the witness stand, under oath, he was required to answer. Uncertainty was changed to certainty and on cross-examination he was required to explain his inconsistent statements. If he were “bucking” for Sgt. O’Neal’s job, a possibility suggested by the Court, it would seem a bit unusual that he would be hesitant about making a disclosure which would have a tendency to incriminate the sergeant. Again, as in the other instance, this deals. with the field of inferences which belongs to the court-martial. I mention the testimony not because it is decisive but merely to point up the difficulties encountered when we invade that field.
While I have previously cited cases dealing with the limitations on an appellate court in reviewing evidence, I shall accept any rule quoted in any case cited in the majority opinion and test the sufficiency of the evidence to sustain this conviction by the rule most favorable to the accused as I believe the facts and circumstances do exclude every reasonable hypothesis of innocence. In testing the evidence I will attempt to use the “reasonable man” standard, but I do grant to him the right and duty to judge the facts in the light of standards of human conduct. In addition, because of the finding of guilty, the firmly established rule that the evidence must be viewed in the light most favorable to the government is used.
All parties to this controversy are in agreement that there is no dispute about certain of the facts and circumstances. These are: That a false claim was presented; that the entry on MPO 224 showing the accused claimed rations was made at a time subsequent to its initial preparation and after it had been signed by Lt. Holt, the certifying officer; that the entry on MPO 278, showing' the termination of rations to the accused was placed thereon by him after it had been originally prepared by PFC. Evans, and after it had been signed by Lt. Holt, the certifying officer; that the accused changed the date of MPO 278 after it had cleared the certifying officer; that in placing his name on the subsequent pay order the accused did not show the entry 'on the retained file copy; that the accused obtained the sum of $68.25 as overpayment for rations during the period involved; that these rations were illegally claimed ;■ that as early as March 3, 1951, the accused knew^that he was being paid sums for separate rations not legally due him; that the accused was well trained in the preparation of papers affecting pay, having worked under the old system during the years 1947 and 1948, and under the new system for better than six months; that he was the sergeant in charge of the section; that on the 31st day of January, 1951, he knew the amount of money he received for the month of January was more than the amount he should, have received; that on that date he placed his name on a discrepancy list; that ordinarily the procedure followed in preparing and submitting military pay orders was that either the accused or PFC. Evans prepared the order, it was taken by one of them to the certifying officer for signature, was returned to their section and was delivered by one of them to the finance office; that the procedure to qualify for pay for separate rations during the period involved was that a formal request would be submitted to Lt. Holt, the certifying officer, who would in turn sign it, submit it to *156higher headquarters, and a special order would then be published; that no such procedure was followed in this case; that a special order did not accompany military pay orders because the certificate of the certifying officer was sufficient authority for the finance office to make payment; and that a military pay order is an order which authorizes a disbux-sing officer to open, adjust, or close the pay records of the individuals listed thereon on the date shown in the entry column.
With the foregoing admitted facts as a foundation, we now turn to those in possible dispute. PFC. Evans testified that he did not type the entry on either of the military pay orders; that shortly after the accused placed his name on a discrepancy list he left on a three-day pass; that Evans went to the finance office, got extracts on the discrepancies, and noticed that accused was paid for separate rations; that he brought the extracts of the discrepancies back and gave them to the accused on his return on Monday, which would be the 5th day of February, 1951; that the accused looked them over on that date; that during one of the conversations involving the discrepancies the accused told Evans not to go to finance in connection with them.
Lt. Holt testified that he never signed any blank military pay orders; that the entries affecting the accused were not on the order; and that he never knew of any change having been made on an order unless it was also made on the file copy.
Capt. Robert E. Ashman, investigating officer in the case testified that in a conversation with him, the accused, after having been warned of his rights as required by Article of War 24, 10 USCA § 1495 stated: That an audit team had picked up the discrepancy; that he knew he had to terminate the separate rations because he was not authorized to draw them; and that he chose the time of terminating them.
In explanation of some of the incriminating facts testified to by the previous witnesses, Sgt. O’Neal testified, in part, as follows: When asked why he did not consult with Lt. Holt about typing his name in on military pay order 278, he testified it did not occur to him to ask Lt. Holt; that he had complete control of the payroll; that he made quite a few corrections and initialed them; that Lt. Holt gave him blank military pay orders already executed; and that he could type in any information he wanted on an order. In connection with the extract showing the cause for his overpayment, which PFC. Evans testified he obtained and gave to the accused on February 5th, it is significant to note his answers to the following questions:
“Q. Isn’t it a fact you read the extract on you?
“A. I believe I did.
“Q. What did it say?
“A. I have no knowledge as to what it said at that time; it has been four months ago.
“Q. But you had put your name on that discrepancy list?
“A. Yes, sir.
“Q. You didn’t care enough to check and be sure what the extract said when it was returned to you?
“A. I did check on it.
“Q. What did it say?
“A. Don’t remember. In my opinion, at the present time wouldn’t pertain to what it had on it in January. There are several remarks on it now that were hot in January.
“Q. You don’t remember whether or not that extract revealed why you were overpaid or not?
“A. No, it is not my duty to determine whether I was overpaid.”
The accused was also asked to explain why, when he found out on March 3rd that he was being paid for separate rations, he failed to submit a military pay order until the 21st of the month. He testified that he knew he was on separate rations on March 3rd. That on or about that date he consulted Staff Sgt. Stroud who told him he could do that when he came back from leave; that he left on the 8th of March and returned on the 12th; that an inspection team came the 8th, as he was preparing for inspection; that when he came back on the 12th he did not submit any changes because Lt. Holt was not present; that an alternate certifying officer was pres*157ent from the 10th to the 19th of March, during which time 14 or 15 military pay orders were signed by him.
One or two other evidentiary matters of importance are these: the accused knew he was overpaid on January Slst, but he claims he did not know the reasons for overpayment. That was his assigned reason for putting his name on the discrepancy list. He knew on February 27th, the day before pay-day that he was being overpaid for that month. A military pay order correcting accused’s status could have been prepared and submitted to the finance office on any day up to and including the 25th day of the month.
In stating the foregoing evidence I have made no assumptions; nor have I indulged in any inferences. Each statement can be substantiated by testimony in the record. However, in arguing to support the finding of the court-martial there may be some inferences I shall make, but they will be confined to what I believe to be permissible limits.
Admittedly, a false claim was filed, so we can limit our discussion to the identity of the person committing the offense. This can be established by circumstantial evidence, a well-recognized and convincing method of fixing guilt. In unravelling the web of circumstances, I find only three possible theories as to who might be the perpetrator. One would be that the accused was the offender. The second would fix the responsibility on PFC. Evans. The third would be that someone other than those two presented the claim. I will discuss these theories in the reverse order.
•It is conceivable, but highly improbable, that some unknown person, without any apparent motive or benefit to himself, would present a claim to have money paid to a third party without the latter’s knowledge: To do so would be contrary to ordinary concepts of human behavior and, in this instance, would require that the person surreptitiously obtain all copies of the documents involved, in the absence of members of the section, and after the documents had been signed by Lt. Holt, then leave them in the section to be delivered to the finance officer by either the accused or Evans. The offender would have to be familiar with rules and regulations governing the finance department, at least to the extent of knowing how to prepare the military pay orders and knowing that the finance officer would pay without a special order' having been published. He would be required' to know or obtain the full name, grade, and serial number of the accused. The only possible motive that would move him would be to injure the accused and the success of the plan would depend upon the false entry escaping the detection of the accused and Evans and the keeping of the money by the accused. It would be more than Unusual to find an unknown person so solicitous for, or so hostile to, the accused. To suspect a stranger might conjure up such a plan and then carry it into execution is being fanciful and imaginary.
I have not overlooked the fact that Sgt. Stroud is included in this class and might have the required knowledge to prepare the entry. However, the facts weighing against his participating are that neither Evans nor the accused testified that he, during the time involved, ever handled the military pay orders. He would not receive any apparent benefit from ruining the accused, and he had no monetary interest in the success of the scheme. He was. chief clerk, senior to the accused, and when the latter claimed to have mentioned the discrepancy the only person he reported it to was Sgt. Stroud. When the information was called to the attention of Sgt. Stroud he did not proceed against the accused or appear in the role of persecutor. He told the accused to submit the entry when he returned from leave. Theré was no claim of ill feeling between the accused and him and no possible motive is suggested. He was not called as a witness because he had been transferred and even in absentia no one attempted to saddle him with suspicion. I challenge any one to judge Stroud in the light of human conduct and see if by “reasonable hypothesis” standards the finger of guilt points towards him. If it does, then it is premised solely on his assignment as chief clerk of the squadron.
*158The second hypothesis is that Evans placed the name on the military pay order. He was called as a witness and denied he did so. This alone, if believed by the court-martial, would explode this theory as the duty to determine the credibility of witnesses, determine who is telling the truth, and reconcile disputes in the evidence belongs to that body. But, suppose we examine the other facts and circumstances to see if it is reasonable to conclude that Evans was the offender.. If he was, it could be only for one of two reasons, namely (1) malice toward the accused in the sense that Evans could be promoted if he discredited the accused; or (2) because he made an error. The record is silent about any ill feeling between Evans and the accused. The latter, when testifying, made no such contention. He testified that if the entries were put on by Evans it was because of error. In order to discredit accused to promote himself (“buck” for promotion), Evans would be required to take a chance that the accused would help in the plan by accepting the additional allowance and by not immediately tracing down the source of the improper entry. If the accused were to start an immediate investigation, the circumstances would encompass Evans as a possible and perhaps the only perpetrator. This appears a rather risky plan to obtain a promotion. Detection would be easy and Evans would not get the nromotion, he would get the • sentence. There is not one affirmative act on the part of Evans, disclosed by this record, which -remotely suggests that he was trying to convict the accused. When he observed the false claim on about the 5th of February, he did not become an informer, he preferred to leave the matter to the accused to straighten out. When the crime was being investigated he refused to state who had prepared the military pay orders. Whether this be considered as a refusal to incriminate himself or the accused, it was not a showing of hostility toward the accused. I can not find one incriminating fact pointing toward Evans as the responsible party, and it is interesting to note that the Court’s opinion only infers the possibility of involvement. This possibility is unsupported by evidence unless it be found in the fact that Evans was required, as part of his duties, to type the military pay orders.
A suggestion that it might have been an error on the part of Evans requires little discussion. A full line entry, squeezed in after the completion of the document could not be a typographical error. The person making the entry might have been mistaken about the right of the accused to draw rations, but that could not apply to Evans. The entry was a change in status involving an increased pay for an immediate superior. The change would have to be called to the attention of Evans by a special order as this was the only procedure by which the accused could rightfully obtain pay for separate rations. Had Evans been mistaken about accused’s right to draw rations, it seems a bit unusual that he would go to the trouble to making the entry after the military pay order had been certified by the certifying officer, when the same result could have been accomplished by putting it on any of the subsequent orders. Furthermore, while the accused testified he made entries after the signature by the certifying officer because the officer had faith in him he made no claim that Evans was permitted this latitude or that he ever made changes without express authorization. I assert as being unreasonable any hypothesis that Evans was the guilty person, and I wonder what facts, circumstances, and inferences are relied upon by the Court to reach that conclusion.
I go now to the case against the accused, the only person in the drama with a recognized motive. While I do not contend that motive established guilt, it is of great importance, particularly in cases of circumstantial evidence. It assists in fixing the crime upon the proper person. He obtained, kept and, I assume, used the money which was paid because of. the fraudulent claim. On January Slst'he knew he was overpaid for that month, and as early as February 5th he was furnished with information as to the reason for the overpayment. He makes various excuses for not knowing at that time that it was for separate rations, such as, while *159he read the extract of the deficiencies he did not note the entry on himself and he did not inquire about the overpayment as it was not his business to find out. The court-martial was not bound to accept his story, particularly since when he put his name on the discrepancy list to find out why he was being overpaid, and PFC. Evans determined the reason therefor, then when the information was available to accused he neither learned the reason nor cared to find out. Strangely though, he did take the pains to tell Evans not to go near the finance office. His knowledge of being overpaid was widened during the month of February as he knew on the 27th day of that month that he was to be overpaid the next day (pay-day), but again I suppose he had no duty to inquire about the reason for the overpayment.
Supposing up to that date we assume' the facts and circumstances are consistent with innocence; and we look at those events happening after the accused admits he knew he was obtaining pay for separate rations. When he discovered that, he had to know that a military pay order containing a false entry affecting him had been forwarded to the ■finance officer because his claimed source of information was the retained copy. In judging human conduct, failure by words or acts to disclaim participation when confronted with a fraudulent scheme by which one admittedly profits might be influential in determining guilt. These are some of the steps the accused might have taken to bolster his claim that he did not make the entry, and they would have been consistent with innocence. He might have consulted the finance office and informed the finance officer of the overpayment; he might have inquired of the only other man who prepared military pay orders as to his knowledge about the entry; he might have consulted the certifying officer and informed him that someone had falsely added his name to the order after it had been completely executed; he might have informed Sgt. Stroud that some one, unbeknown to him, had placed his name on the order; and when the inspection team appeared he might have informed the members of the irregularity. Had he taken any one of these steps the chain of circumstances pointing towards guilt might have been broken. But, of course, he took none.
This is what he did as found in the .record. Having learned of the false entry on March 3rd, he remained silent, with the exception of telling Sgt. Stroud on March 8th that he hadn’t caught up on his separate rations, and that he had to terminate those affecting him; he included his name on the list terminating the extra pay; but it was 18 days after he was fully apprised of his illegal status, although a number of military pay orders were submitted during the period; when he elected to end the preferred status he waited until the military pay order had cleared the certifying officer, as was done on the order constituting the false claim, and then surreptitiously squeezed the entry in between those already on the document; he did not change the file copy so that anyone checking through the file could observe the added entry; he did not request PFC. Evans to put the entry on MPO 278 at the time it was being prepared, although I can find no reason for not doing so unless he was attempting to conceal the matter; he could have included the entry on any military pay order prior to the 25th of the month, yet he elected to alter one which had been completely executed; he changed the date on the military pay order after it cleared the certifying officer because it was retained by him for at least two days after signature; he gives a number of reasons for not having submitted a change when he first discovered the error, such as his leave, presence of the inspecting team, and the absence of Lt. Holt, but fails to account for why he did not give the information to Evans and have him prepare an appropriate change as was done in many other cases during that period; furthermore, he had no reason to wait for Lt. Holt unless he wanted to make some explanation, but unfortunately the record suggests that he did his best to escape having to disclose the false entry to the lieutenant; he told the investigating of-*160fleer that the inspection team uncovered the discrepancy, that he knew he was illegally drawing pay for separate rations, and that he made the entry on MPO 278 because he had to terminate the status; finally, when it came time to fix the date for termination of the excess pay he did not terminate the status on-the first of March, or the 3rd of ■ March, he permitted the status to continue and claimed extra pay until the 16th day of'March, some thirteen days beyond the date he knew he was being illegally paid. In the final analysis, what the accused failed to do and what he did, with one single exception, unerringly identify him as the offender.
■. I have attempted to show the evidence, or lack of evidence, and inferences to support the three theories. It should not be difficult to appraise the facts in the light of our limited power of review and determine whether, as a matter of law, we can reverse. I find nothing in the opinion of the Court which discusses in what particulars the evidence is lacking, but viewed from my understanding of what might be a reasonable hypothesis of guilt or innocence, I would say that the court-martial was well within its permissible limits when it selected the hypothesis it did. If that tribunal viewed the acts of the known or unknown participants in this drama, in the light of the standards of human conduct, it reasonably must find, beyond all reasonable doubt, that the accused was the person.who prepared and submitted the false entry.