(dissenting):
I dissent.
The majority here decides that proof alone of absence without leave while in the face of prospective combat duty will support a conviction for desertion with intent to avoid hazardous duty. With this theory I cannot agree. Admittedly, the specific intent element involved in all desertion offenses is difficult of direct proof. Cf. United States v. Yarborough and Marshall (No. 443), 5 CMR 106, decided September 12, 1952. However, it requires something more than the equivocal act of unauthorized absence under circumstances such as are involved in the instant case.
There is no proof in this record that the accused absented himself specifically in order to' avoid the hazardous duty to which he was assigned. That his absence resulted in avoidance of that duty is not sufficient — the offense is predicated upon a mental intent, not upon a resulting situation. It is noteworthy, to me, that the accused turned himself in and reported himself AWOL some twelve hours after the original absence at a place where he could have been returned to his own company prior to the time that it moved into the attack. I am not convinced, from the record, of the impossibility of returning this accused to his unit prior to the scheduled departure time. But even if this be conceded, the accused surely could not have been so naive as to assume that by staying away twelve hours he could thereby avoid all combat duty. What would be gained by missing the first day’s action only to be involved on the following day and for days thereafter? It seems to me that the accused’s action in turning himself in within twelve hours is entirely inconsistent with any intent to avoid participating in his company’s prospective combat action. It is relevant in this respect, that the accused, both before and after this incident, performed combat duties both competently and continuously.
Of course, it is possible that the accused originally absented himself with the alleged intent and later repented. If so, he is nevertheless. guilty. However, it is to me equally as reasonable to assume that he did leave in order to visit a friend prior to impending combat and that this visit lasted too long. Perhaps the accused and his friend became involved in some interesting activity.
In short, I find myself completely unable to reconcile the majority opinion in this case with our previous decisions which reverse for insufficiency of the evidence in situations where there is circumstantial evidence and equivocal acts. See United States v. O’Neal (No. 25), 2 CMR 44, decided February 7, 1952; United States v. Shull (No. 45), 2 CMR 83, decided February 18, 1952; United States v. Horst (No. 822), 4 CMR 45, decided July 9, 1952; and United States v. Yarborough and Marshall, supra.
I must again inveigh against the theory that there is some burden on the accused to “explain” his conduct in order to avoid being convicted of the crime charged. This reversal of the time-honored presumption of innocence becomes even worse when added to the feeling, unfortunately present in the minds of many service officers, that “the accused must be guilty or else this general court-martial would never have been ordered.” However, I have already spelled out in detail my views concerning this theory and it is unnecessary to repeat them here. See United States v. McCrary (No. 4), 1 CMR 1, decided November 8, 1951.
I would reverse the board of review and set aside the conviction for insufficiency of the evidence to support the findings.