(dissenting):
I dissent.
Article 45 (a) of the Uniform Code of Military Justice, 50 USC § 620, provides explicitly that if an accused arraigned before a court-martial sets up a matter inconsistent with a prior plea of guilty, “a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.” This accused pleaded *135guilty to larceny in violation of Article 121 of the Code, 50 USC § 715, and misappropriation as conduct unbecoming an officer and a gentleman in violation of Article 133 of the Code, 50 USC § 727. After the findings, the accused stated that he only intended to borrow the items in question, and presented an altogether credible version of the events leading up to the takings. This statement completely negatived the existence of an animus furandi and, therefore, conclusively demonstrated a fatal deficiency in his understanding of the charges and of the meaning and effect of his plea.
It would be difficult for me to imagine a clearer case of matter inconsistent with the plea in the words of Article 45 (a), supra. It matters not that this inconsistency was developed' after the findings were made. Under the provisions of Article 45(a), supra, the law officer had no choice but to order the plea of guilty withdrawn, a plea of not guilty entered, and to direct the court to reconsider its findings in the light of the additional evidence. I find nothing in the Article which authorizes the law officer and the court to disbelieve the inconsistent matter and thus avoid compliance with the mandate of the Article.
Had any individual assigned to the accused’s organization desired to borrow the items described in the specifications, agreeing to replace them in kind at a later date, the accused’s permission as mess officer would be required. No one would suggest that the borrower was a thief and that the accused was a principal in the commission of larceny under the circumstances. If he had authority to loan to others, he surely was reasonable in assuming he had authority to borrow himself. Doubtlessly, it would have been more prudent to obtain the permission of his superiors. But he was not tried for imprudence; he was tried as a thief, and as one not fit to be called an officer' and a gentleman. To establish the commission of these offenses it was incumbent upon the Government to establish the criminal intent of the accused. His statement negatived this intent, and the majority opinion would have us believe that it serves only to establish the offenses charged. To support, this theory, reliance is placed upon the following portion of paragraph 200a, page 360, Manual for Courts-Martial, United States, 19.51:
“An intention to pay for the property stolen or otherwise to replace it with an equivalent is not a defense, even though such an intention existed at the time of the theft, and, once a larceny is committed, a return of the property or payment for it is no defense.”
The principal difficulty with this approach is that it ignores the plain terms of the authority relied upon. It presumes the commission of larceny as its starting point, and then declares the statement is not a defense because the larceny was shown. This is a concrete example of lifting one’s self by his bootstraps. The fact is, that in the absence of an animus furandi, no crime was committed.
By failing to order the entry of a plea of not guilty, and to direct the court to reconsider its findings, the law officer, and the majority of this Court, fell into the error held reversible by the United States Supreme Court in Morissette v. United States, 342 US 246, 96 L ed 288, 72 S Ct 240. In that case the defendant, charged with “unlawfully, willfully, and knowingly” stealing and converting property of the United States, asserted he had discovered the articles alleged to have been stolen, while hunting, and believing they were abandoned, took them. He denied an intent to steal, or any wrongful or criminal intent. The trial judge ruled this was no'defense. Upon appeal Mr. Justice Jackson, speaking for the court, declared:
“Where intent of the accused' is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v. Flack, 125 NY 324, 334, 26 NE 267, 270, 11 LRA 807:
*136‘It is alike the general rule of law and the dictate of natural justice that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury...."
“It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a ‘presumption’ a conclusion which a court thinks probable from given facts. . . .
“We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and • fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. . .
After the accused had entered his guilty pleas, the majority very readily equates the introduction of evidence to establish a prima facie case to a situation in which trial was held as if pleas of not guilty had been entered. It is clear that the procedure followed here conformed to the established practice of Army courts-martial to receive evidence of the crime charged “with a-view to determining the actual criminality of the offender and the measure of punishment which should properly be executed, in any case in which such evidence . . . [is] deemed to be essential to the due administration of military justice.” Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 279. To conclude from the application of this custom of the service that any real issue was in contest, after the entry of the pleas of guilty, is pure sophistry.
It is contrary to law, reason, and common sense to assume blithely, as does the majority, that the matter is of little consequence, since the result would have been the same had a trial been held upon a plea of not guilty. The strongest proof known to law is a judicial confession of guilt. This court was quite at liberty to rely, in its verdict, solely on the accused’s plea of guilty. We have no way of knowing what their verdict would have been if they had had before them the accused’s explanation of his actions. The majority opinion seems to indicate that the complete denial of guilt, necessarily implicit in a plea of not guilty, is of little consequence in our system of criminal justice. The majority opinion reduces itself to this — the accused deserves to be dismissed from the service so we need not concern ourselves with the procedures required and protections afforded by the Uniform Code of Military Justice.