(concurring in the result) :
I concur in the result.
I concur in that portion of the opinion which holds the evidence is insufficient to support the findings of guilt. The Government seeks to sustain them by relying on the rule stated in the-Manual to the effect that proof of possession of recently stolen property, not satisfactorily explained, raises a presumption that the possessor stole it. I do not question the rule but there is no evidence to justify its application. Possession as contemplated in that doctrine is something more than knowledge of where the property is secreted. The record shows that the accused went ■to the place where the tires were located but this does not complete the chain of circumstances. Without some evidence as to who owned, controlled or had the right to occupy the particular premises involved, it is impossible to determine who actually was in possession of the stolen property. When the foundation for the presumption crumbles both fall. Furthermore, as stated in the Court’s opinion, there are no other facts and circumstances from which it can be inferred reasonably that the accused was the offender.
I do not join with the Court in all that it states about the convening authority. I believe we should go no further than to hold he erred to the prejudice of the accused when he considered evidence on the merits which was not admitted in evidence.' In this instance, had he merely stated that he disagreed with his staff judge advocate because-he believed the evidence sufficient to support the findings he would have escaped criticism. Because he set out his reasons candidly and fully so they could be evaluated by reviewing authorities he is censored. If by being unnecessarily critical we deter convening authorities from setting out their reasons, be they legal or illegal, we have not helped the system.