(concurring in part and dissenting in part):
I concur in part and dissent in part. There are separate specifications in this ease and they are drawn so that each accused appears to have been charged with a separate and distinct crime. Were it not for that, the general principles applying to criminal conspiracy to the effect that one cannot conspire with himself and that one overt act would bind all conspirators would apply, but, because of the manner in which the crimes are charged, and, in fairness to accused Yarborough, he should only be required to defend against the particular specification which was directed toward him. Undoubtedly the specification charges him with the same general plan or agreement as that charged against Marshall, but he is alleged to have been connected with the scheme by but one specific overt act. It is, as I interpret the Court’s opinion, failure to prove that element which brings about a reversal as to the one conspirator and at the same time requires affirmance as to the other. Yarborough having been charged by a separate specification, undoubtedly is entitled to rely on failure of the Government to establish the sole overt act alleged against him. For the purposes of this case, I shall accept that premise and relate the evidence which I believe sufficient to establish that as to both accused the findings should be sustained.
The specification referring to Yar-borough reads as follows:
“In that Private John W. Yar-borough . . . did at Chokkun-Dong, Korea on or about 9 July 1951, conspire with Private First Class Herman Marshall to commit an offense under the Uniform Code of Military Justice, to wit: to intentionally inflict injury upon himself in violation of Article 115, and in order to effect the object of the conspiracy, the said Private John W. Yarborough did place himself in line of fire and did then allow the said Private First Class Herman Marshall to shoot him in the foot with a carbine.”
As the majority opinion points out, there is ample evidence to sustain the finding that there was a general plan *689and agreement between Yarborough and Marshall. That leaves the sufficiency of the evidence to establish the overt act as the line of departure between myself and the other members of the Court. In order to portray clearly the facts and circumstances lending color to my version, I will first summarize the evidence of the Government as for the most part it is undisputed by Yarborough, except as to some particularities immediately preceding the shooting. As to those instances I will mark out the boundaries of the dispute. Then I shall relate the versions of the three eyewitnesses to the injury.
Marshall had been a noncommissioned officer but was reduced in grade because of having overstayed his leave. He was worried because of conditions at home and was concerned about a letter he had received from his girl. His evidence was vague and uncertain concerning his acts and conduct during the afternoon and evening and his answers to questions were equivocal. I merely mention these matters as they are influential on the weight the court-martial would give to his testimony.
Earlier in the afternoon of July 9, 1951, a group of five or six soldiers from the same company, including Yar-borough and Marshall, had assembled at a spring and were drinking some beer. Some of the individual soldiers came and left and the unfortunate drama unfolds over a period of several hours. Part of the statement I allude to and events I mention were made or occurred at the spring, and others in the tent. Without trying to relate them in sequence, or fix the exact time or locale, except those immediately preceding the shooting, I shall merely point them out as they were all in the presence of Yarborough. During the afternoon Marshall and Yarborough were talking about going to Japan. Marshall picked up a weapon and pointed it at Yarborough’s foot. Yarborough said “Go ahead. I don’t give a damn.” One of the other soldiers spoke up and said in substance: You better not, all accidents are being investigated by the Criminal Investigation Division. Both Marshall and Yarborough replied that that did not make any difference to them, they were going to Japan that evening and did not care how they went. During the afternoon Marshall and Yar-borough were discussing ways of shooting themselves without being detected. Approximately one hour before the shooting they were in their tent;, they overlapped their feet so that the foot of one was over the foot of the other and Marshall pointed the carbine so that if it were fired, it would pass through both feet. About the same time they were discussing the various ways in which they could shoot themselves with one round. During this particular discussion and demonstration one witness left because as he stated, he “did not like to be around parties playing with firearms.”
The shooting occurred in a pup tent which was approximately six feet by four feet. At the time of injury there were three persons in the tent, Yar-borough, Marshall and Chapius. They were friendly and there was no ill feeling existing. The tent was normally occupied by Yarborough and Marshall as sleeping quarters. Chapius and Marshall were in a supine position, with the upper portions of their bodies raised on their elbows. The three parties had been carrying on a general conversation and in one of the sideline discussions between Marshall and Yarborough they mentioned going to Seoul or Japan. At least one carbine with a magazine inserted was lying in the tent. It was handled by Marshall, fired or discharged by him, and the projectile travelled through the right index finger of Marshall, who was right-handed; and the large toe of Yarborough’s right foot.
Before relating the facts immediately surrounding the shooting, in fairness to Yarborough’s contention, I should mention that the witnesses who furnished the evidence related above, indicated they believed the two participants were joking when they were talking and simulating self-injury; but, they were all friendly to both Marshall and Yar-borough and hardly anyone would expect a soldier to be other than in a joking mood in- such a matter until he performed some act showing a different mental attitude. Be that as it may, that question was placed squarely-before the *690court-martial, and it was resolved contrary to the contention that it was all in fun.
There are three versions of the detailed incidents in the tent immediately preceding the shooting and this is the only evidence which was in substantial conflict. Chapius’ version was as follows: There had been discussions between Marshall and Yarborough about injuring themselves and going away; that he, Marshall and Yarborough were all in the tent and for some substantial period of time immediately preceding the shooting no one left; that he and Yarborough were lying parallel to each other; Yarborough was in a reclining position resting on his elbows, and the three parties had been conversing and all were awake; that Marshall was sitting opposite the hips of Yarborough and at the time of shooting facing toward Yarborough’s feet; that Marshall took the carbine, held it with his left hand with the hand on or near the trigger guard and the stock by his leg; that he placed his right hand, palm toward Yarborough’s head, over the right foot of Yarborough with his index finger of the right hand over the right large toe of Marshall; that he placed the muzzle of the weapon about an inch from his finger and fired; that Yarborough knew the weapon was pointed at his toe; that Yarborough was shot through the big toe on the right foot and Marshall was shot through the right index finger; that Yarborough appeared surprised and said “I’m hit”; that Yarborough made no comment to Marshall about Marshall having shot him.
Marshall’s version is substantially as follows: He claims to have left the tent for a short period of time; that he returned, started to crawl back in the tent between Yarborough and Chapius, saw the carbine on the ground, picked it up by the muzzle and moved it, and as it was being moved, it fired. I hardly need to characterize Marshall’s story as being doubtful and, of course, he had considerable difficulty in explaining how he could lift a weapon with his right index finger over the muzzle, and at such an angle with the ground and Yar-borough’s position that the path of the bullet would pass through his finger and Yarborough’s toe.
Now as to Yarborough’s version: He does not deny having made any of the statements attributed to him, nor does he dispute that he participated in any of the acts in which he and Marshall took assumed positions which would permit both to be injured by one round. He sought to avoid their effects by claiming that he and Yarborough were playing. He does not dispute the warning he was given about the Criminal Investigation Division investigating accidents and his reply that he did not care; he merely states he could not remember. This is his story concerning the actual shooting:
“About 5:30, something like that. Phelps came on in the tent and asked me about Lieutenant Barbour’s sending me back up the hill. We joked around in the tent there awhile. I was talking to Chapius. Marshall picked up a carbine; I wouldn’t say whose it was. I said, ‘Go ahead and shoot; I don’t give a damn.’ And then I went out of the tent- again . . ., when I came back, Phelps was gone. Marshall and Chapius was in the tent. They were talking about something. I laid down and said, ‘Wake me up when the movie starts.’ I just closed my eyes. When it happened, I knew I was hit in my foot. I grabbed my shoe and that’s all I know about what happened.”
I need not point out how, nor in what way, Yarborough’s evidence contradicts that of other witnesses and that the right to believe or disbelieve his story is a function that belongs to the court-martial. Neither need I repeat my reasons for not accepting the rationale of United States v. O’Neal (No. 25) 1 USCMA 138, 2 CMR 44, decided February 7, 1952. They can be found in my dissenting opinion in that case. Moreover, it would be of little value as a precedent for me to analyze the facts and show the reasonable inferences the court-martial could draw in this type of offense where the one using the gun must be active, the other passive. For the purpose of this case, I will leave it to the perspicacity of those who read *691this opinion, to assume as this Court has found, that Yarborough participated in conceiving and creating the plan to permit himself to be shot, and then to determine whether the members of the court-martial could reasonably find from the related evidence, beyond a reasonable doubt, that Yarborough was a willing victim to the shooting. I have concluded they could and, therefore, dissent from that portion of the decision of the Court which is contrary to the views expressed by me.