(dissenting):
I do not believe that the Government has carried the burden of proof imposed upon it by the test of evidential sufficiency previously announced by this Court in a number of decisions. The majority finds the situation presented here to be markedly different from that found in United States v. Peterson (No. 199), 3 CMR 51, decided April 17, 1952. In my view the points of .difference are few indeed. Certainly this case is much unlike United States v. Ferretti (No. 213), 3 CMR 57, decided April 18, 1952. In truth, the fact complex of the instant case appears to me to fall between those of the two just cited. In observing that each sufficiency problem must rest on its own bottom, we used the following language in Peterson:
*112“In the present instance we are faced with a problem frequently, if not usually, arising in cases of alleged desertion. In such a situation a clear showing of unauthorized absence is typically present through the routine presentation of extract copies of official military records — leaving as the only controverted question the sufficiency of the evidence to support the finding of an intention to remain away permanently, to avoid hazardous duty, or to shirk important service, as the case may be. It is in this area that the presence or absence of facts — or perhaps even of a single fact — may lead to divergent results. Accordingly, in this case, as elsewhere, it is our duty carefully to review the evidence for the limited purpose of determining legal sufficiency. . . .” [Emphasis supplied]
Pursuing the directive contained in the final sentence of the foregoing quotation, I shall proceed to marshal the evidence in the case at bar bearing on intent. Here the only evidence adduced by the Government to sustain its charge of desertion with intent to remain away permanently is (1) an unauthorized absence of thirty-five days, and (2) the fact that the absence was terminated by apprehension. In the other pan of the balances we' have the full and circumstantial explanation of the accused as related by him from the witness stand. This story certainly was not inherently improbable in any usage of the term, and,' although readily rebuttable, if untrue, it was wholly uneontradicted. According to this account, the accused’s wife became ill and' required his sympathy and attention. He requested a three-day .pass from his First Sergeant and from officers of his battery, but the application was denied. Thereafter, he absented himself from his station at Fort Custer, Michigan, and went to his home in Detroit, Michigan, only a short distance away. Shortly after his arrival at home, and his wife’s recovery, his mother-in-law, who lived in the same house, became seriously ill, and he remained there at all times with the two women, nursing each and assisting in the household chores. He remained in Detroit, his home of record, throughout his entire absence; he made no attempt to conceal himself; he did not hold or seek civilian employment, and was without income during the period; he did not remove his effects from his quarters at Custer; and he wore his uniform during most of the time he was in Detroit. He categorically denied an intention not to return, and stated that, in fact, he intended at all times to rejoin his unit as soon as conditions improved at home.
Now the accused’s story was in substance, either true or false. Even if true, he certainly displayed indefensible judgment, he deliberately violated military law, and he must be the subject of punitive action. However, he was not guilty of any sort of desertion. If wholly false, on the other hand, he was clearly guilty of an extremely serious military offense. Likewise if only partially false, no one could with justice question the determination of a court-martial which rejected his account in toto. However, no attempt whatever appears to have been made to investigate the story, despite the ease with which this could have been accomplished, and certainly none was made to refute it in any single particular at the trial. • It goes without saying, of course, that I am not-seeking to pass on the truth or falsity of the accused’s explanation — for this ' is beyond the province of a member of this Court. I am, however, ' genuinely seeking to evaluate the reasonableness as a matter of law of the court-martial which tried Knoph in light of the evidence its members had before them.
The majority finds ‘.‘damaging” conflicts in the accused’s testimony. I see nothing to justify this conclusion. It is true that at one point, after asserting repeatedly that he intended to return to his organization as soon as “everything was running smoothly at home,” he stated that he had planned to remain out of military control for a period of thirty-five days. This must be the conflict which troubles my brethren, for it is. the only one I have been able to find. As for myself, I hardly regard it as a serious inconsistency which completely vitiates the. effectiveness of the accused’s testimony. Giv*113ing it its maximum effect, and considering it realistically, it rather suggests that the accused had been unreliably informed that thirty-five days constituted the maximum period one might remain in unauthorized absence without becoming liable to conviction as a deserter. Although this may indicate that the details of Knoph’s explanation were stated with something less than accuracy, it also suggests forcibly that he did not intend to desert.
At worst, as has been suggested, the accused’s thirty-five-day .story sounds very much like an absence without leave carefully calculated as to length for the purpose of avoiding a charge of desertion. Considering him as a-recidivist absentee without leave — a type from which the military services are not free, unfortunately — he is doubtless an unreliable and irresponsible, possibly even an entirely worthless, person fully meriting — under most penal theories — punishment substantially in excess of that permitted by the Manual’s Table of Maximum Punishments. This, however, involves ■ problems beyond our power to solve by judicial opinion. Rather, their solution rests within the policy determinations of The Congress or of The President, through his Executive Order, the Manual for Courts-Martial, United States, 1951. Certainly so long as this bench sits as a court of law, rather than as an agency for the administration of paternalistic discipline, it should not, in pursuit of practical goals, countenance an attribution to the word “intent” a meaning not accorded it elsewhere.
The majority has referred to what it regards as the conditional character of the accused’s intention to return to military control. It is true that the following language is found in the Manual for Courts-Martial, United States, 1951, paragraph 164a (1) :
“. . . and a purpose to return, provided a particular but uncertain event happens in the future, may be considered an intent to remain away permanently. . . .”
It is apparent either that they and I do not read this language alike, or that we differ sharply as to the accused’s professions. I do not understand him to have stated that he would return to his station only if or provided “everything was running smoothly at home.” Rather I think he said when “conditions” cleared up. To some this may seem a quibble over semantics. To me, however, it is highly significant in so far as it bears on Knoph’s profession of intention. To him the future event was not uncertain of happening at all, but only doubtful as to the time it would occur — and this interpretation is supported by the very logic of the situation. • Moreover, when this genuinely certain event transpired, he intended to return. It must be remembered that it is his intention we are seeking — not a merely mechanical, artificial, and legally crystallized expression thereof. I am quite sure that the present ease does -not contain an example of what the Manual’s draftsmen contemplated in paragraph 164a (1). Moreover, the Manual’s quoted language does not require of the court-martial an adverse view as to intent; it only permits it. And here, as elsewhere, a court-martial’s conclusions are subject to review in this Court for reasonableness as matter of law.
The evidence, as I see it, weighs at least as much in favor of innocence as of guilt, arid. is, therefore, insufficient to sustain the conviction of desertion. United States v. Shull (No. 45), 2 CMR 83, decided February 18, 1952. Of course, by plea the accused is guilty of an absence without leave of thirty-five days.