(concurring in the result) :
I concur in the result.
I have no misgivings about our conclusion that leaving the scene of an accident is conduct of a nature to bring discredit upon the Armed Forces, and hence is an offense under Article 134 of the Code, 50 USG § 728. However, the argument made that knowledge on the part of the accused that he has been involved in an accident is not an essential element of this offense is not persuasive. On that issue I disagree with my associates. I grant that the form specification for that offense which is shown in the Appendix to the Manual does not include a separate allegation of knowledge (Manual for Courts-Mar*693tial, United States, 1951, Appendix 66), but the issue should not be decided by the contents of a form which is intended only as a guide. The fact that a form is provided does not sup- port a conclusion that it is comprehensive and defines adequately the substantive offense. Its purpose is to assist in preparing a specification, but I believe the elements of the offense must be determined by substantive law and not by forms. Furthermore, the assertion that the form specification has the force and effect of a punitive statute and thus delineates the elements of the offense appears to be at variance with language used in other decisions of this Court. See United States v. Soukup, 2 USCMA 141, 7 CMR 17; United States v. Smith, 2 USCMA 197, 7 CMR 73.
It might be of aid in determining what the elements of the offense are to refer to the holding of civilian authorities as we do not have a specific statute defining the crime. Certain jurisdictions, by statute, prescribe knowledge as an element of the offense, but it should require little discussion to demonstrate that decisions from those States are of little aid to us here, except to indicate that various legislatures have concluded that the crime is not committed unless the offender had knowledge of the accident. Typical of those jurisdictions are Alabama: Layfield v. State, 27 Ala App 437, 173 So 654 (1937); Arizona: State v. Lee, 53 Ariz 295, 88 P2d 996 (1939); California: People v. Moody, 93 Cal App2d 66, 208 P2d 692 (1949); Massachusetts: Commonwealth v. Bleakney, 278 Mass 198, 179 NE 400 (1932); Michigan: People v. MacPherson, 323 Mich 438, 35 NW2d 376 (1949); New Jersey: LoBiondo v. Allan, 132 NJL 437, 40 A2d 810 (1945); and New York: People v. Hakala, 270 App Div 612, 61 NYS2d 718 (1946).
The important category of cases encompasses those which hold that knowledge is an element of the offense even though not expressly made so by statute. I prefer the rationale of those cases and therefore quote from two. In Herchenbach v. Commonwealth, 185 Va 217, 38 SE2d 328 (1946), the Virginia Supreme Court first quoted the appropriate statute, which did not expressly include knowledge as an element of the offense, and then the Court continued :
“The duty imposed upon the driver of a vehicle involved in an accident is not passive. It requires positive, affirmative action; that is, to stop and give the aid and information specified.
“How can a person perform these affirmative acts unless he knows that his vehicle has struck a person or an object? Knowledge necessarily is an essential element of the crime. This does not mean that the person should have positive knowledge of the extent of the damage or injuries inflicted. It does mean that, in order to be guilty’ of violating the statute, ‘the driver must be aware that harm has been done; it must be present in his mind that there has been an injury; and then, with that in his mind, he must deliberately go away without making himself known.’ ”
In State v. Ray, 229 NC 40, 47 SE2d 494 (1948), the North Carolina Supreme Court discussed the offense as defined by a statute which did not include knowledge as an element, and used the following forceful language in discussing knowledge as an element.
“It would be a manifest absurdity to expect or require the driver of a motor vehicle to perform the acts specified in the statute in the absence of knowledge that his vehicle has been involved in an accident resulting in injury to some person. Hence, both reason and authority declare that such knowledge is an essential element of the crime created by the statute now under consideration.”
Many other jurisdictions have announced principles which support the rule announced in the two foregoing quotations. See, for example, Pennsylvania: Commonwealth v. Hyman, 117 Pa Super 585, 178 Atl 510 (1935), stating, “knowledge must be shown on the part of the owner and driver of a vehicle that he has injured some person or damaged the property of another *694user of the highway”; Texas: Bevil v. State, 139 Tex Cr 513, 141 SW2d 362 (1940), holding, “It was the duty of the appellant to stop if he knew that he had struck the automobile in question”; and New Mexico: State v. Kuchan, 47 NM 209, 139 P2d 592 (1943), announcing, “we are not here called upon to determine whether anything more than knowledge that the car appellant was driving was involved in an accident would be required under the statute in question.”
If there are a number of cases holding that knowledge of the accident is not an element of the offense, I have had little success in finding them. While the majority opinion states flatly that under most State statutes which do not expressly include knowledge as an element of the offense it is generally held that lack of knowledge is an affirmative defense, I find a paucity of authority cited to sustain the statement. The case of Olson v. State, 36 Ariz 294, 285 Pac 282 (1930) is cited, but there are several reasons why that case has little influence on our problem. First, the portion of the opinion stating that knowledge of an accident is not an element of the offense of leaving the scene of an accident was clearly not necessary to that opinion. Second, the court was interpreting a statute which had amended a previous enactment. The earlier statute had included knowledge as an element while the amending act omitted it. By statutory construction the court concluded the legislature had intended to eliminate knowledge as an element. Third, after Olson had committed the offense, but before his case reached the Supreme Court, the Arizona legislature again amended the particular statute involved so as to insert knowledge as an element, and the latest case announces a principle consistent with the latest enactment, State v. Lee, supra. The majority of the Court rely heavily upon the ease of State v. Masters, 106 W Va 46, 144 SE 718 (1928), but the issue which here concerns us was not set at rest in that opinion. After indictment for failure to stop following an accident, the defendant demurred and moved to quash the indictment. The demurrer was sustained on the grounds that the indictment failed to allege am offense and that the statute making punishable the act of failing to stop and render assistance following an accident: was unconstitutional. Judgment discharging the defendant was entered, and; the State appealed to the West Virginia Supreme Court. The statute in. question was held to be not unconstitutional because of vagueness. That enactment did not expressly include knowledge as an element of the offense and the indictment was drawn in the language of the statute. In the light of those facts, the indictment was held to be sufficient to allege an offense. Accordingly, the judgment of the lower court was reversed. Essentially, therefore, the case stands for no more than the proposition that an indictment drawm in the terms of a constitutional statute is ordinarily sufficient to allege an offense. That this may be the utmost thrust of that opinion is rendered more likely by the fact that I have been unable to find any case from that jurisdiction which cites the decision for any proposition more far-reaching than the one above set forth. State v. Keiffer, 112 W Va 74, 163 SE 841 (1932); State v. Livesay, 127 W Va 579, 34 SE2d 24, 27 (1945). Laying aside the Olson case, supra, and the Masters case, supra, I have been unable to find a single jurisdiction which has held that knowledge of involvement in an accident is not an essential element in this type of offense where the pertinent statute mentions it in defining the crime or is silent on the subject.
In cases of this kind an accused may be punished for leaving the scene of an accident regardless of whether he contributed in bringing about the accident. He may be entirely free from fault, and the other party may be solely responsible for the collision, but he may not leave without committing an offense. That public policy requires such a criminal sanction, I have no doubt. But I believe it unreasonable to saddle an individual with responsibility for the crime unless the Government establishes that he had knowledge of the accident either by direct or circumstantial evidence. The prosecution is not placed at an unfair disadvantage if it is required *695to establish affirmatively that an accused was aware of his involvement in an accident and certainly it is no burden to instruct the court-martial members that they must so find. To my mind judicial precedent, logical analysis, and good sense combine to compel the conclusion that knowledge is an element of this offense.
The facts have been marshalled with stunning force in the principal opinion to show that knowledge was not an issue raised at the trial. I reach the same result, but not by the same reasoning. A plea of not guilty places in issue every essential element of the offense. However, an accused can, by judicial confession, trial tactics, stipulation, and perhaps otherwise, remove an element from dispute so it is no longer in issue. In my judgment, the accused by his trial tactics, theory of the case, and the open court admissions of his counsel eliminated any necessity for the law officer of the court-martial to consider knowledge when outlining the elements of the offense. The record reflects the following sequence of events. The prosecution established without contradicti'oii that accused knew he was involved in a collision. The element was established by the extrajudicial statements of the accused to a British Constable, and to the Military Police; by his reporting the accident to protect his insurance; by his voluntary preparation of a formal police report which he filed at the Harrow-Wealdstone Police Station; and by the testimony of his companion. On cross-examination, defense counsel took pains to have witnesses emphasize that accused had knowledge of the accident and not without purpose. His defense was that the accused knew he had an accident, stopped, went back, investigated, found no evidence of the nature of the object struck, and then drove on. An excellent defense, if believed in full, but highly inconsistent if knowledge is denied.
When it came time for accused to go forward with his case his counsel made an opening statement as follows:
“The defense will have a short opening statement.
“We intend to show — as you know, the burden is not necessarily on the defense — we have shown, from statements of previous witnesses on cross-examination; some of the information that was brought out on our cross-examination of prosecution witnesses, and the witnesses the defense has brought before this court, that the accused possibly did have an accident; that he made every effort to stop; he did stop, and did report the accident to the proper authority.”
After having the members of the court-martial view the car involved, defense counsel called the passenger, had him confirm his previous testimony, and clinched the question of knowledge. The testimony was not weakened by the closing argument and the following quotations are taken from the defending counsel’s speech:
“Going on, we find that according to Captain Eagleson’s statement that he has made to various people — Captain Wytock — that the accused did stop and made an utterance, ‘Christ, Harry, we hit something.’ ... I realized that the evidence has brought out considerable damage to this car. Further evidence has indicated that the automobile was so damaged that it was difficult to operate and that the light itself, the lefthand light, was damaged. Yet everything seems to indicate that the accused and his cohort made every conceivable effort to determine what they had done. They stopped, a little down the road after the initial stop. . . . All they can say, they were in the pub; they left and they stopped; they did stop, and I am inclined to believe Captain Wytock. ... I am sure, by the cooperation of Captain Wytock, that they did stop, and they did go back. They did everything and anything a reasonably prudent person would do under the circumstances.”
A good argument could be made that implicit in the law officer’s instructions is a requirement that the court-martial find the accused had knowledge of the *696accident. In this case that is not important, as when an accused makes a conscious choice to rely on one theory in the trial of a case, he cannot change that theory on appeal. If that theory consists of conceding that one element is not in issue, then we should not be concerned with its absence from an instruction.
For the reasons set out, I can find no sound basis for holding that the law-officer erred because he failed to require a court-martial to find a fact that the' accused concedes. Moreover, an accused cannot now contend forthrightly that had the court-martial members been informed that knowledge was an element, there is fair possibility they might have found he did not know he was involved in a collision where he has conceded the issue at trial.