(dissenting):
I dissent.
If the theft involved is not committed from the person or in the presence of the victim, the offense is not robbery. Moreover, a specification which fails to set out this essential element, directly or by clear implication, does not allege robbery; and a finding of guilty returned under such a specification does not amount to a conviction for robbery. Cf. United States v. Fout, 3 USCMA 565, 13 CMR 121. The. specification with which we are concerned here fails to allege directly the element of “from the person” or “in the presence” of the victim. However, the language of the specification clearly implies this element. It is alleged that the accused “did ... by means of putting him in fear, steal from Corporal Francisco D. Ogo . . . against his will.” The phrase “steal from” as here used is susceptible to two possible meanings. The first is “from his person.” It may also be interpreted to mean from his constructive possession which is not necessarily “in his presence.” This possible ambiguity the accused was free to attack in the trial forum by appropriate motion. The in-artfulness of the pleading did not result in complete failure to allege an offense. Consequently, the accused’s failure to challenge it in the trial court requires determination of first whether there was a fair risk that he was misled, and, second whether the specification, together with the evidence, was sufficient to provide protection against subsequent prosecution for the same offense. United States v. Marker, 1 USCMA 393, 3 CMR 127; United States v. Snyder, 1 USCMA 423, 4 CMR 15; United States v. Steele, 2 USCMA 379, 9 CMR 9; United States v. Simpson, 2 USCMA 493, 9 CMR 123; United States v. Sell, 3 USCMA 202, 11 CMR 202; United States v. Karl, 3 USCMA 427, 12 CMR 183.
There is no possibility that the accused was misled in this case. Neither is the specification, taken together with the record of trial, insufficient to protect him against a second prosecution for the same offense.
The specification was laid under Article 122, Uniform Code of Military Justice, 50 USC § 716, which defines the crime of robbery. Although this alone is not sufficient to put an accused on binding notice (United States v. Deller, 3 USCMA 409, 12 CMR 165), it is an indication which cannot be completely ignored. At the opening of the trial, the trial counsel announced that the general nature of the charge in this case was robbery. Immediately thereafter the accused was advised “that any motion to dismiss any charge or *209to grant other relief should be made at this time.” His counsel said that the accused had no motions to make, and a plea of not guilty was entered. Following this, the prosecution introduced evidence of every essential element of the offense of robbery, including a statement of the accused proving beyond all question that his acts were committed both in the presence of and upon the person of the victim. No effort was made by the defense to negative the commission of the crime of robbery. Its efforts were directed only to impeaching the victim’s identification of the accused. Finally, during the course of his instructions, the law officer outlined the essential elements of robbery as delineated in paragraph 201, Manual for Courts-Martial, United States, 1951, and made two specific references to “robbery” as the offense charged. No objection was made to these instructions. Neither the accused nor his counsel indicated any surprise at any stage of the trial procedures.
Under these circumstances, the language of this Court in United States v. Karl, supra, is particularly appropriate :
“While a failure to attack a specification because it does not state an offense cannot be waived, a neglect to attack it for other reasons can. If the specification is so inartfully drawn that the accused runs a fair risk of being misled, an appropriate motion will permit the issue to be framed properly. However, an accused cannot gamble on overlooking uncertainty at the trial level and then succeed in asserting it on appeal. If he claims he is uninformed on appeal, he must have been unenlightened before he entered his plea and the appropriate time to litigate that issue is before plea is entered. If an accused does not exercise his right to have the specification clarified at that time, in the absence of a miscarriage of justice, he waives his right to complain on appeal.”
The cases relied upon by the majority to support the reversal of this conviction are hardly in point. In People v. Ho Sing, 6 Cal App 52, 93 Pac 204; Ward v. State, 34 Okla Cr 296, 246 Pac 664; and Hill v. State, 145 Ala 58, 40 So 654, relied upon by the court in Henderson v. State, 172 Ala 415, 55 So 816, the indictments upon which the defendants were tried and convicted, were attacked in the trial courts. Under the circumstances there was, of course, no waiver. In Smith v. State, 82 Miss 793, 35 So 178, the indictment failed to set out that the persons robbed were put in fear, or that the personal property was taken from their persons. The trial judge’s instructions followed the terms of the indictment. Although no attack was made on the indictment in the trial forum, the Supreme Court of Mississippi reversed the conviction because, of the erroneous instructions.
For the foregoing reasons, I would answer the first certified question in the affirmative and reverse the decision of the board of review.