(dissenting) :
I dissent.
I disagree with the conclusion reached by the majority that the evidence fails to show that the accused stole and sold the oil as alleged. The Manual provides that the offense of larceny may be proved by showing (1) a wrongful taking or withholding of the property, (2) its ownership, (3) value, and (4) an intent permanently to deprive another of its use and benefit. Paragraph 200a, page 361, Manual for Courts-Martial, United States, 1951. Concerning element (1), above, it is further provided that he is guilty of the offense if he “wrongfully takes , by any means whatever.” (Emphasis supplied.) Paragraph 200a, page 356, Manual for Courts-Martial, supra.
The record fails to show an actual asportation by the accused, personally, but it is sufficient to show a wrongful taking accomplished by others acting at his instigation. Under such circumstances the accused may be held responsible. The general rule appears to be that where a person procures a guilty agent to take the goods in his absence he is as guilty of the larceny as the one who takes them with his own hands. 32 American Jurisprudence, Larceny, § 14, page 899.
Applying that rule to the case at bar, I conclude the evidence is sufficient to permit the court-martial to find the accused guilty. The record shows that the accused was on duty with the 506th Quartermaster Petroleum Supply Company, located in Korea. Chu Won Kyo, hereinafter called Chu, and Jun Soo Yon, identified later as Jun, two Koreán Nationals, were employed by the company. The function of the company was to receive, issue, and store oil, gas, and grease belonging to the military service of the United States. Normally, issue slips were prepared for each load of petroleum products leaving the premises, and these, were checked by a guard on duty at the gate. However, during the noon lunch period from 11:30 a.m. to 1:00 p.m., no one was on duty at that post. Chu testified that in nlid-March 1952, the accused approached him and asked if he could sell some oil; that Chu talked the matter over with Jun; that the latter agreed to find some one who would buy oil; and that Chu subsequently received the sum of 100,000 won from Jun. Jun testified that in the middle of March he had a conversation with Chu; during this conversation he was asked to get a vehicle to transport oil; that through one Chul, he obtained the use of a truck which belonged to the Korean army; that he directed that the truck be driven to the 506th Quartermaster Supply Company and there pick up some oil; that he understood the oil was to be sold; that later he received 1,820,000 won from Chul, in addition to 100,000 won each for himself and Chu; that the 1,820,000 won was payment for “goods” and that he took it to his home; that a colored soldier visited his home that night and stated that he had come “to get the money for oil,” and, that he gave the soldier the money.
A pretrial statement, which was signed by the accused and received in evidence, is as follows:
“About 1215 hours, sometime during the middle of the month of March 1952, as I was returning to duty from chow, at the 506 QM Main Petroleum Supply Dump, at Yong Dung Po, I observed a Korean army truck leaving the Number 1 Gate of the compound. This truck was loaded with five gallon cans of motor oil, which appeared to me to be about one-hundred and fifty cans. I inquired of the clerk in the office, at this time, if he had given an issue slip to the Korean driver of the truck and he stated that he had not. I then went into the compound and inquired of the Korean laborers and they pointed to JUN, the Korean labor foreman. I questioned JUN regarding the Korean truck load of oil and he appeared frightened and pleaded with me not to report the incident to the Lieutenant in charge of the dump and that the Korean was a friend of his. He also told me to come to his home that night. About 1930 hours that evening I went to Jun’s house and he gave me 1,700,000 won.”
*246In summary, I find the record contains these facts and circumstances from which the court-martial could find that the accused misappropriated and sold Government property. Pursuant to a previously arranged scheme conceived and instigated by the accused, a truck obtained by Jun appeared at the gate of the 506th Quartermaster Petroleum Supply Company at a time when no guard was on duty. The only property normally handled by that company was petroleum supplies and its principal function was to receive, issue and store them. The accused saw the truck leaving the gate of the compound loaded with what he identified as 150 “five-gallon cans of motor oil.” He worked in the company and could identify oil cans. Normal procedure required that when supplies were being transported to other units an issue slip be prepared. The accused inquired of the clerk in the office as to whether that procedure had been followed. Of course, if there was no oil there would be no necessity for an issue slip. Having been informed that no slip had been issued thereon, accused then made success of his plan possible by failing to report the incident to the officer-in-charge as proper procedure required him to do. Instead, he sought out Jun, the Korean with whom arrangements for the theft and sale of the oil had been made, and discussed with him the Korean truckload of oil. Later that night accused went to Jun’s house where payment for the oil was turned over to him.
I need not concern myself with the possibility of the accused being guilty of some other offense. If a member of a Quartermaster company in Korea can conceive a plan to sell enough oil that he needs a truck to haul it away, execute it through Korean labors, see the truck departing from the company area loaded with oil cans, conceal the theft from his superiors, appear at the proper place and at the proper time to receive payment and then not be guilty of larceny, I misunderstand the effect of circumstantial evidence. Common sense seems to say the plan was not conceived, the truck obtained, the articles transported at a time when a guard would not intercept the truck, the goods obtained from a company which only deals in oil, gasoline and greases, a Korean berated, a substantial sum of' money paid and the circumstances timed so nicely, all for naught. It may be a reasonable hypothesis that the participants were playing with empty cases, but I register my doubts. To me the record speaks out quite clearly that the boys were appropriating and selling oil that belonged to the Government.