(dissenting):
I dissent.
I have no disposition to deny the validity of some of the principles announced by the maj ority of the Court in this decision but I am in sharp disagreement over the issue as to whether or not the victim is an accomplice. The law officer concluded he was not and I support his- conclusion. Whether a person aids, encourages or abets in the commission of a crime is a question of fact and in this instance I hardly picture this victim as being a participant *674in the crime for which the accused stands convicted. He was a trainee with not over thirty days service; this was the first time he had obtained a pass'; his friends requested he accompany them on a visit to town and they offered to obtain his clearance; without solicitation or encouragement on his part, a pass was obtained and delivered to him; he had not discussed the matter with the accused; there was no prior unlawful agreement as paying for the pass was not discussed with him; and, certainly up until after the pass was in his possession he in no way influenced any action on the part of the accused. After the pass was delivered to him, he was informed by the accused that he could pay $2.00 then and $3.00 later. That was the first information the boy had that he was expected to pay. In so far as the delict of the accused is concerned, which was clearly an act to the prejudice of good order and discipline proscribed by Article 134 of the Code, the crime was complete without regard to the actual passing of money. Of course, at the time the demand was made the victim could have refused to contribute but I imagine he found himself in a dilemma not unlike the victim of a robbery who hands over his wallet.
The majority of the Court rely in part on Egan v. United States, 287 F 958 (CA DC Cir 1923). That case defines an accomplice in an all-inclusive manner. The definition is found in the following language:
“. . .' The broader and more comprehensive rule is that any one knowingly and voluntarily co-operating with, aiding, assisting, advising, or encouraging another in the commission of a crime is an accomplice, and this is true, regardless of the degree of his guilt. I Russell’s Crimes, 49; Wharton’s Criminal Evidence, 440; Rice’s Criminal Evidence, § 319, Bishop’s Criminal Procedure, § 1159.”
Applying that rule to the facts of this case leaves a factual hiatus in the proof. Here the victim did not enter into a prior agreement to pay for a pass; he did not offer to pay for its issuance; he did not aid, assist, advise or encourage the accused to charge him for the pass, and I am certain he would have been pleased not to have been confronted with a demand to pay. Viewing the evidence in a light most favorable to the accused, the most that can be inferred from the evidence is that the victim cooperated. However, his cooperation can hardly be described as voluntary. He was told by his superior noncommissioned officer what to do and he complied. That is not the cooperation which I envisage makes a person a criminal. The effect of this decision is to resurrect the old racket of leading a recruit to believe he is required to pay $2.00 for a pass and after having done so, he is advised not to talk because he, too, is guilty of a crime and may be prosecuted.