(dissenting):
I dissent.
Much ado is made in this case because the offense alleged permitted the imposition of a death sentence. In view of the posture of this record, I wonder how that influences the sufficiency of the evidence. Appellate courts are particularly solicitous of the rights of an accused and search a record for all errors of substance, whether raised or not, where the death sentence has been imposed, but I gravely doubt they adopt any such procedure in those cases when a defendant is charged with murder and found guilty of negligent homicide. The matter of moment to the appellate court is the sentence, not the charge. Here the accused is before us with a sentence of five years’ imprisonment after having pleaded guilty to an offense which permitted the court-martial to sentence him to confinement for life. He is only entitled to the same consideration as any accused with an equivalent sentence, regardless of the original charge. The suggestion that we should not permit a capital offense to hinge on speculation and conjecture adds nothing of a convincing nature to the opinion. No conviction of a criminal offense can be sustained on a surmise or guess. Why then the emphasis on the gravity of the offense? After all, there is only one question which concerns us and that is the sufficiency of the evidence to sustain the finding, and I use the same measuring rod as I do in other cases with similar sentences.
It would be of little value for me to assert there is sufficient evidence to sustain the findings without documenting the assertion and so I will quote the evidence from the record. The command post of the platoon was divided into two sections, one section was the command post where the platoon personnel carried on their military duties, the other was used for sleeping purposes when the men were off duty. The platoon leader, Lieutenant Goudelock, testified as follows
“Q: Tell us when and where you saw him?
A: I saw the accused in my platoon CP. The platoon CP is divided in two sections. One is the sleeping bunker and the other is the platoon headquarters. The accused was sleeping in my platoon CP sleeping bunker when I told him that he was to go out on an LP. This was about 3 o’clock when I told him.
“Q: Did you assign the accused to any particular listening post?
A: Yes sir. I assigned him to LP No. 14. That was a right flank LP about 450 yards from the left finger by Pokkae which is a hill occupied by the Chinese.
“Q: You say that you had a conversation with the accused about 1500 hours?
A: Yes sir.
“Q: What instructions did you give him?
A: I told him that he was to go on a listening post and that he was to report to the platoon CP at 1800 hours.”
On cross-examination by defense counsel, Lieutenant Goudelock testified:
“Q: You stated, Lieutenant Goude-lock, that you gave the accused instructions as to LP 14?
A: I gave him instructions to be on LP 14 and that he was to report to CP by 1830 hours.
“Q: You said that you gave the accused instructions to report back to the CP at 1830 hours. Was that your platoon CP?
A: Yes sir.”
*124Sergeant First Class Kuzmick testified:
“Q: Calling your attention again to 1 March 1953, did you have occasion to see the accused that day?
A: I seen Pfc. Tilton that day.
“Q: Tell us when and where you saw him?
A: At the platoon CP.
“Q Was anyone else present?
A: Lieutenant Goudeloek.
“Q Was there any conversation?
A: There was sir.
“Q: Tell us in your own words what was said?
A: The accused was informed that he would have LP that night and that he was to report to the platoon CP at 1830 hours.”
Suppose we pause at this point and consider the stories as related by the two government witnesses. My associates say it is reasonable to conclude the accused was asleep. Of course, one can always conclude that a conversation was not a conversation and that an officer carried on a monologue while an enlisted man, whom he had specifically contacted to make certain he reported for duty, lay sleeping on his bunk. Furthermore, the sergeant, who witnessed the incident could have been in error about the conversation. He, too, could have misunderstood the meaning of the word “conversation” as he only mentioned the order given by the Lieutenant. I have not overlooked the suggestion that the evidence was obtained by leading questions and, therefore, of little weight. I know not why. I assume that if a witness is asked if he had a conversation, there is no objection to the question, and he answers “Yes,” that the evidence is competent and a reasonable person would conclude he had a conversation. Furthermore, I assume the defense counsel in cross-examination might escape my brothers’ restricted view of leading questions. In answer to one of his questions, the Lieutenant stated that he gave the accused instructions to be on Listening Post 14 and to report to him at the command post at 6:30 pm. It was then 3:00 o’clock in the afternoon. I concede the officer neglected to say that when he gave the order he prefaced it by asking the accused if he were awake, but human behavior suggests to me that the officer was not talking to himself.
If the evidence is sufficient at this point to sustain the finding, then the problem is whether the evidence of the accused compels a finding of innocence. This is his story. He had been on rest and recreation leave and he returned to platoon headquarters at 10:00 o’clock in the morning of March 1, 1953. He reported to the unit administrator at the company command post and then proceeded to the sleeping bunker. He fell asleep and upon awakening some time during the afternoon he felt “sick and all shaken up,” and “nervous.” Without notifying anyone in the platoon command post and without clearing with the unit administrative officer who was only 400 to 600 yards to the rear, he caught a ride in a jeep belonging to another company and proceeded to the battalion command post to see the chaplain. When asked why he went to see the chaplain, he answered “at the time I felt sick and all shaken up, I thought it would be best to see the Chaplain.” When asked if he desired to see the chaplain for any other purpose he stated “I wanted to find out when I was to rotate.” He stayed in the rear area for five days, sleeping and living in a wire supply tent. The person whom he - knew possessed the information about his rotation points was the unit administrator in the company area. He did not consult with him because he “felt rotten and just didn’t stop.” He informed a person by the name of “Matt” that he did not feel well, but he made no attempt to report his condition to any officer or noncom-missioned officer of the platoon, and he did not report to any medical installation — this in spite of the fact that he was apprised of the location of medical installations, and they were readily accessible.
The evidence as to his service speaks for itself. He testified he had been on listening posts fifteen times but, according to his own statement, there was *125nothing hazardous about that service. He did not identify the location of the posts, but they were not in the dangerous area with which we are concerned. He had not performed any duty in that locality. When asked if he had been in combat, he said he had been, but when narrowed down by questioning, he stated “I wasn’t exactly there, but I was near there, I was not in the assault.” Some two weeks after he was charged with this offense, the troops in the forward area suffered sufficient casualties that the personnel in rear areas were ordered forward to evacuate the wounded. The accused assisted in that evacuation.
In some instances when an accused has testified consistently and his story has been corroborated by independent circumstances, we have held the record insufficient to sustain the finding of desertion. See United States v. Peterson, 1 USCMA 317, 3 CMR 51. But I suggest we analyze accused’s story to determine if it is persuasive and compelling. This was his first day in a dangerous area after he returned from leave; he awakened sometime during the afternoon; he was sick, shaken, and nervous; he left his place of duty to get to the rear to consult with the chaplain about his health and rotation; he reported to no one officially; he made no attempt to report for sick call; he admitted going absent without leave; he had medical assistance immediately available, but never sought it; his source of information on rotation was close at hand, but he ignored it; he stayed in a place of relative safety for five days to talk to a chaplain about information that could be obtained firsthand in the forward area; and, he lived in a supply tent in a wire communications section. The only evidence given by him which is corroborated is that which relates to his service in evacuating wounded personnel some fifteen days after he was charged with this offense.
I wonder if, in view of all the evidence, it would be unreasonable to conclude that accused knew of his assignment to a dangerous listening post and that this knowledge brought on his sickness, nervousness, and subsequent departure for the rear. I conclude it would not be unreasonable and I would, therefore, affirm the finding.