(concurring in the result) :
I concur in the result.
I do not question the principles of law announced by Judge Brosman, but when I apply them to the facts of this case, I reach a contrary determination on one aspect of the case. The principal area of disagreement is on the application of the rule that the burden rests heavily on the Government to establish, after notice to and hearing of the accused, that communications between a court-martial member and a witness were harmless to him. I can dispense with any discourse on hearing and notice as accused and his counsel were within a few feet of the conversationalists and were well aware that discussions were being carried on. The claimed irregularity was called to the attention of the court-martial by counsel for the accused immediately after the recess and he was not restricted in any manner from developing the subject on voir dire of the two court members.
There are some slight variations in the facts I find in the record and those related by Judge Brosman, but they have little impact on the result. For the sake of accuracy and clarity, I will set up the five transactions in a chart, and the dates of the checks, times of presentments, balances on hand, and other relevant data can be determined in short order. First, however, I point out that Mr. Pinckney, in answer to a question while he was on the witness stand, followed the course of the check from utterance to final clearance through the depository bank. He stated that a check deposited by a payee in a bank in Washington, District of Columbia, would clear through the Federal Reserve Bank in Baltimore, Maryland, and then to the main office of his bank in Upper Marlboro, Maryland. However, that information was not peculiarly within his knowledge and it was not the subject of expert testimony as members of the court-martial could readily ascertain the facts from the back of four of the five checks given to the Skyline Restaurant. The reason it could not be obtained from the fifth check is the record contains only a photostatic copy of the face of that instrument. The witness further testified as to the clearance time of each of the five checks, and in no instance was it greater than eight days. Some reached the bank in seven days time from the date of utterance, while others took one day longer. Again that information could with some degree of accuracy be gained from the exhibits.
The information I consider helpful to show the status of accused’s account is shown on the following chart:
*424An inspection of this chart will show that the check referred to in Exhibit 27 was written when there were sufficient funds in the bank to pay the check. However, other checks which were negotiated by the accused arrived at the bank prior to December 30, 1952, and when they were debited against his account, the balance remaining was insufficient to cover the check arriving on that date. The first three checks in the sum of $92.00 were issued on December 22-23, 1952, and it matters little whether we take the balance on the day of utterance or on the date the checks arrived at the bank as the balance varied from $24.36 to $6.36 and had the first one been cleared the other two could not have been paid from the funds remaining. Those three checks were returned by the drawee at the request of the accused on or about the same date as the last two, and when the five arrived there was $1.16 on deposit. The check issued on January 7, 1953, was less than the amount on deposit on that date, but again other checks which arrived at the bank at an earlier date depleted the sum and the first three checks were still outstanding and unpaid. As a matter of record during the period covered by the chart, there was one deposit in the sum of $125.00, but the total sum of the checks written amounted to $265.00. That accused was well aware of the fact that the checks could not be paid by the bank either at the time of issuance or presentment finds ample support in the record.
In order to determine any possibility of prejudice from the recess discussions, it is necessary to weigh the sum total of the evidence on the five transactions against the subject matter of the communications and determine whether there is any probability that the latter had any effect on the deliberations and findings. In so far as I have been able to ascertain, there is no evidence in the record which in any way disputes or easts doubt on the testimony of Mr. Pinckney and that furnished by the exhibits either as to the time or course of clearance. No testimony on these particular offenses was offered for or on behalf of the accused and the only possible defense I can glean from the proceeding could only arise out of a claimed weakness in the Government’s case or in a theory suggested by defense counsel in his argument, i.e., that these checks were given for gambling debts. It is in that posture of the record that I assess the conversations for prejudice.
The crime charged in this case is that the accused wrongfully and dishonorably failed to maintain sufficient funds in his checking account to pay the checks upon their presentation. The record shows no contrary agreement with the drawee or the bank so the checks were payable immediately without any days of grace or travel time. They could have been handcarried to the bank and presented to it on the day of execution as the accused represented there were funds on deposit to pay the full amount of the check. Unless he was prepared to establish a course of conduct different from standard banking practices, the course the checks travelled and the time of clearance have nothing to do with his obligation to maintain a balance to pay them when presented.
I have gone over the record with a fine-tooth comb and I have been unable to find a scintilla of evidence to the effect that the conversation concerned any matter involved directly or indirectly in this litigation. Stated in a manner most favorable to the accused I gather the following facts from the testimony of the participants: The conversation occurred during an announced five minutes recess taken at the request of counsel for the accused. There were three active participants in the discussion and the communications were carried on in the courtroom in full view of the accused, his counsel, and anyone else therein present. Only two of the parties were called to testify on the substance of the communications and several essential facts were established with certainty. These were that the subjects discussed involved hypothetical questions; there was no conversation concerning the case at bar; the two members of the court-martial were not influenced for or against the accused by the communications; and they could *425fairly and impartially return a finding, uninfluenced by any evidence not produced in open court.
That there could be no possible prejudice to the accused can be ascertained readily by evaluating the subject matter of the communications. Specifically, Colonel Marstin testified that they were discussing hypothetical questions about checks, banking accounts, firms in other states, checks being written, how long they could be held and the course of travel from the drawer to the depository bank. One statement made by him was that he believed a man is responsible to have money in the bank to meet a check when it is uttered. This statement was tied in with the further comment that a man who signs his income tax form is chargeable with the information contained therein. Judge Bros-man concludes those statements were not prejudicial and with that holding I agree.
The subject which most nearly touches on the facts of this case can be found in three answers given by Major Carter. They were as follows:
“Colonel Marstin made the remark to Mr. Pinckney that he was surprised to learn a check which he gave to an organization, a business establishment downtown, departed another bank, not his own, and had to go through a Federal Reserve Clearing House in Baltimore prior to being presented to his bank for payment. The conversation then went to a general discussion as to the possible number of people that handled a check, and the possible length of time it could be delayed from the time of making until it reached the bank on which it was drawn. [Record, page 315.]
“Colonel Marstin said that it would be possible for me to give my check to someone in another state, for whatever reason, and for that person to give it to his plumber, and for him to give it to his grocer, and hence through a number of other hands without going through normal banking channels for some longer period of time. I believe Mr. Pinckney stated on occasion it took longer than thirty days for a check under those circumstances to reach the bank.
“I believe the statement [by Colonel Marstin] was that a man was responsible to have sufficient funds in his bank to cover a check drawn in the same way that he is responsible on his income tax return to sign it. It was part of the same statement. There was no interval in between the two.” [Record, page 316.]
Conceding that Colonel Marstin was surprised to learn that a check deposited in a downtown, Washington, District of Columbia, bank was cleared through the Baltimore branch of the Federal Reserve Bank, I am unable to ascertain how, or in what way, that would affect his conclusions in this case. It is almost common knowledge that a check presented to one bank clears through a branch of the Federal Reserve Bank before it reaches the paying bank and that fact, if of any materiality, was established without dispute by testimony in the record. His surprise may have been occasioned by the information that there was no Federal Reserve branch office in Washington, D. C. But an announcement of surprise at testimony given in court is not receiving evidence out of court. Again conceding, as stated by Major Carter, that a hypothetical situation based on the passing of a check from a plumber to a grocer and then through other hands was considered and it was stated that thirty days time might elapse before it reached the depository bank, wherein does that prejudice the accused? While the precise time in an assumed case might not be known, I can hardly charge anyone with not knowing that the more hands through which a check passes the greater the length of time it takes to reach its ultimate destination. In the hypothetical 'case it might require thirty days to clear a check, but I am unable to ascertain how that time element could affect the guilt or innocence of this accused. The evidence on *426his transactions disclosed that the checks went from the payee restaurant to a District of Columbia bank, through the Federal Reserve, and then to the depository bank, and the times involved never exceeded eight days. Most assuredly, time based on supposititious cases would vary according to the facts assumed, but the court-martial was not trying a fictitious case, the times in this case were fixed and, regardless of the time of presentation to the paying bank, the funds on hand were insufficient. Finally, the statement that a man is responsible to have funds in his bank to cover a check drawn by him, and its legal comparison with an income tax return, is nothing but a statement of the legal obligations imposed on those who execute cheeks and sign income tax returns. It is axiomatic that the drawer of a check under the circumstances of this case represents that there are funds on deposit for the purpose of paying the check at any time it is presented.
Judge Brosman anchors his finding of prejudice on the possible overlapping of testimony given on the trial and information conveyed in the communications. Principally he relies on subjects touching on the course of the particular checks and the time interval for them to clear in the immediate area. Even if the same facts related on the witness stand were restated in the communications, I would encounter some difficulty in finding prejudice; but the best answer to his assertion is there was no discussion common to both. In support of that statement I quote the following questions and answers:
“Q. There was nothing said with specific reference to this particular accused or this particular case ?
A. [By Colonel Marstin] It was not. [Record, page 311.]
“Q. Colonel Marstin, was there anything in your conversation with the witness, Mr. Pinckney, in order to clarify anything in your mind in connection with this case?
A. There was not. [Record, page 312.]
“Q. And this discussion as to the mechanics of handling was in reference to the local situation, local banks and in the local area. Is that correct?
A. [By Major Carter] That is not correct. This was a general discussion and primary hypothetical cases were discussed of cashing a check in another state and the possible number of people through whom it would pass in reaching a current bank locally. [Record, pages 315 and 316.]
“Q. Was anything discussed in reference to the testimony previously given by a witness?
A. No, except, as I stated, that Colonel Marstin was surprised to learn that a check from a local bank had to go to Baltimore.
“Q. Were there any questions to clarify or explain the testimony of the previous witness ?
A. No.
“Q. Was the individual case itself now on trial discussed with the witness?
A. It was not.” [Record, page 317.]
What was said about jurors by the Circuit Court of Appeals, Seventh Circuit, in United States v. Sorcey, 151 F2d 899 (CA 7th Cir), is equally applicable to members of a court-martial. That court stated the following principle, and I would apply it to this case:
“To be sure, the jury should pass upon each case free from external causes tending to disturb the exercise of deliberate and unbiased judgment, hence, communications, between jurors and third persons or officers in charge of the jury, are absolutely forbidden, and, if it appears that such communications have taken place, a presumption arises that they were prejudicial, but this presumption may be rebutted by evidence, Wheaton v. United States, 8 Cir, 133 F2d 522. But, we must not permit the integ*427rity of the jury to be assailed by mere suspicion and surmise; it is presumed that the jury will be true to their oath and conscientiously observe the instructions of the court, Baker v. Hudspeth, 10 Cir, 129 F2d 779, 782.”
While I concur with Judge Brosman that for many reasons witnesses and jurors should not converse, they need not act dumb and mute in the presence of each other. If every conversation is outlawed, then a friendly good morning advanced by one to the other is per se prejudicial and the cause must be retried. In so far as the instant case is concerned, the topics of conversation were no more prejudicial than would be a discussion of the weather, the policy of the Army, or a thousand other subjects which could be mentioned. Of course, passions can be swayed by an exhortation on the right of a fair trial but unless the record establishes a violation of that right, an accused is not entitled to a reversal. Certainly, the better reasoned cases support the rule that a presumption of prejudice can be rebutted, and I have no hesitancy in saying they would not do so if communications could not be tested for the possibility of prejudice. Judge Brosman adopts the rule and applies it more generously than do I, but to reverse a finding of guilty for soliciting a bribe or for being absent without leave because a member of the court-martial asked the witness about a negotiable instrument, does not weigh for prejudice —it throws away the scales.
I would affirm the decision of the board of review but for me to refuse to yield ground would result in a stalemate. Judge Brosman’s result is more in keeping with my concepts than those of the Chief Judge and I, therefore, join him in disposing of this litigation. Accordingly, I concur in his result.