(concurring):
I concur, although I suspect that persons of a certain cast of mind are likely to feel that the requirement of corroboration — the doctrine of corpus de-licti — is being sapped by us in this case. I do not at all believe this to be true. We have earlier had occasion to advert to the truism that a trial by court-martial is not a fox hunt, and rather different ground rules obtain. At the same time, of course, it is mandatory that the substantial rights of one accused of crime be protected fully. Are we sacrificing any one of these through our decision in the instant case? I think not.
II
The Manual tells us that a court-martial may not consider a confession as evidence against an accused “unless ■there is in the record other evidence, either direct or circumstantial, that the offense charged had probably been committed by someone.” (Emphasis supplied.) It is also provided that “the corroborating evidence need not be sufficient ... to convince beyond a reasonable doubt . . . and it need not tend to connect the accused with the offense.” Paragraph 140a. It seems to me that the net of all this — as well as the rational core of the notion of corpus delicti as developed in common law cases — is that a court-martial shall not be permitted to convict on the basis of a confession, unless it is likely that the crime admitted actually took place. I credit profoundly the assertion that “confessions are the highest order of proof” — and so almost universally do juries and courts-martial. As a consequence, when such a body has before it an admission of guilt, of whose vol-untariness it is satisfied, a conviction may be expected to follow — and ordinarily it should do so. The idea of corpus delicti enters the picture simply as a cautionary hedge, a gesture of protection against those extremely rare instances in which persons confess guilt of non-existent crimes. Judges of all levels — and this category is intended to include both law officers and members of boards of review — should certainly see that this protection is fully accorded a confessing accused. Almost always they do.
Not infrequently, it seems to me, officers of the criminal law administration of the civilian community have overdone the job, and have granted the. accused a “protection” which he neither needs nor deserves — one well beyond the logical heart of the principle. Just why they have done this, I am not sure. Indeed, this is the age of the common man — including the common accused — and the consciences of some of us concerning him have grown tender to an almost gangrenous degree. Human experience should teach us that one who confesses to a crime voluntarily is almost universally guilty of its commission. And even when he is not, he is— be it noted- — quite without the protection of the doctrine of corpus delicti— provided the likelihood that the offense was committed by someone may be established.
Does our disposition of the instant case effect an inroad on the principle invoked by appellate defense counsel? The inroad, if any, consists simply in a willingness to find corroboration in evidentiary items which at the trial were not utilized explicitly for that purpose. My own impression — obtained from a reading of the record — is that this was not done because, in a not too well handled case, the point of corpus delicti was not clearly presented at the nisi prius level. However, in no genuine sense has the Government’s' “theory of the case” been changed in this Court — for it has offered nothing in the nature of a new- basis for either evidential admissibility or criminal liability. Therefore, I can see no unfairness to the accused in accepting the conclusion and ratio proposed in the principal opinion.
. Moreover, in our previous cases in this area, as I understand them, we have been concerned almost exclusively with the presence in the record — vide the language of paragraph 140a — of other evidence, usually circumstantial, of the probability of crime. We have *745not been conscious, I believe, of any necessity for an overt recognition of the presence of this evidence on the part of the court-martial. United States v. Evans, 1 USCMA 207, 2 CMR 113; United States v. Petty, 3 USCMA 87, 11 CMR 87; United States v. Dolliole and Johnson, 3 USCMA 101, 11 CMR 101. Indeed, so far as verbalization and judicial conduct are concerned, it might appear that, under the law of this Court at least, the. idea of corpus delicti is one which addresses itself solely to the judge and not the jury— to the law dispenser rather than to the fact finder.
Ill
I do not agree that the present is one of those situations in which we are required to apply the principle that admissibility cannot be justified on a ground not urged explicitly at the court-martial hearing. There seems no doubt that the confession with which we are concerned was generally admissible — although its consideration against the accused was conditioned on the establishment of a corpus delicti at the trial — that is, the presence in the record of some evidence of likelihood that the forgery in suit had been committed. In this respect the case before us is to be distinguished sharply from Shepard v. United States, 290 US 96, 78 L ed 196, 54 S Ct 22, a prosecution for murder in which one item of evidence was the victim’s assertion that the accused had poisoned her. This statement would have been competent to show that the latter did not commit suicide, as the defense claimed she had done, but was inadmissible as a dying declaration to show the accused’s guilt ■ — this for the reason that it had not been made under a consciousness of impending death. It was exclusively on the latter basis that the statement had been offered below — and in this connection the Supreme Court remarked that the course of trial had “put the defendant off his guard.” The Court observed further that the only purpose for which the victim’s declaration was admissible would be “unlikely to occur to the minds of uninstructed jurors, and even if it did, would be swallowed up and lost in” the use of the assertion in an improper manner. In the instant case, on the contrary, there was no danger whatever that the court-martial would use the confession for a purpose for which it was incompetent — and thus the risk of prejudice, with which the Supreme Court was concerned, was not present here.
IV
It has been suggested that — conceding that Baughman’s name had been placed on the money order by the accused, Manuel — there was no showing of a signing without authority, since fraud is never presumed. These comments are more than a little misleading, for they have to do with sufficiency of the evidence to support findings and not with corpus delicti. I suspect that fraud is not being presumed when an accused confesses thereto. As to corroboration, common experience may serve as a basis for the assertion that the presentment, without explanation or indication of agency, of a money order on which the payee’s signature has been indorsed by a third person — to-wit, him who presents it — indicates that the signature has “probably” been forged. Certainly no conception of the requirement of corroboration of which 1 am aware demands the exclusion of literally every rational possibility of innocent purpose. United States v. Long, 2 USCMA 45, 6 CMR 45. We are assured by the Manual that “the corroborating evidence need not be sufficient of itself to convince beyond a reasonable doubt.” Certainly nothing said by us in United States v. Isenberg, cited in the principal opinion, demands by way of corroboration “other evidence” tending expressly to show that not only did the accused place the payee’s signature on the paper without indication of agency, but that in addition he was without authority to do so.