(dissenting):
I dissent.
This case is not Duffy (United States v Duffy, 3 USCMA 20, 11 CMR 20), nor Guest (United States v Guest, 3 USCMA 147, 11 CMR 147), nor Brown (United States v Brown, 3 USCMA 242, 11 CMR 242) simply because we are testing the sufficiency of the evidence and in that process a slight change in facts makes an ad hoe decision necessary. In this particular instance, I willingly concede that the author Judge makes a fine jury argument, but it should be made in the trial arena and not in this Court. I venture to suggest it almost duplicates defense counsel’s summation of the inferences which could be drawn reasonably from the facts if the court-martial believed his client. Unfortunately for the accused, the court-martial found against him, and while my efforts will produce no precedent for future use, I set forth my reasons for concluding that the findings are supported adequately by the evidence.
At about 6:00 a.m., on June 26, 1954, Private First Class Billy G. Connor drew a caliber .45 pistol, M 1911, from the Military Police Detachment arms room at the Post Stockade, Camp Stewart, Georgia. Connor kept this weapon for about one hour and then, because his duties required it, exchanged the weapon for a shotgun. The exchange of weapons took place in the orderly room for no one happened to be in the arms room at that moment. Although Connor could not remember the particular person to whom he gave the pistol, he was sure that the person was not a “stranger,” and the accused was a stranger to him. Moreover, I am reasonably certain he did not obtain a shotgun from an unauthorized and unknown person.
On June 29, 1954, the accused was detailed as a prisoner guard at the Camp Stewart stockade. He was probably armed with a 12-guage shotgun as that was the weapon issued to those who were detailed for that duty. He was present at the Main Gate when he was assigned to his detail, and this location was some 50 to 75 feet from the orderly room, which was near the arms room. By no means, however, does the record establish that the Main Gate was assigned to him as his post, carrying with it a conclusion that he was expected to remain there.
At about 3:00 p.m., on June 29, 1954, Corporal Estaeio, the arms room attendant, discovered that a caliber .45 pistol was physically absent from the arms rack. There was nothing to indicate that any one had tampered with the entrance to the arms room. A subsequent check revealed that the missing weapon was the same one which had been drawn by Private First Class Connor three days earlier. Although the return of the weapon had not been recorded, Corporal Estaeio physically counted his pistols daily, and to his knowledge all of the pistols were present on June 28, 1954. Furthermore, Connor testified he returned this weapon on June 26, 1954, and I assume the court-martial could believe both of those witnesses even though my associates spin out a hypothesis to the contrary. From what has been said to this point, I conclude that the court-martial could find reasonably that the weapon was in the arms rack on June 28, 1954, and that it turned up missing on June 29, 1954, at a time when the accused was physically present in the area. But more than that, everyone concedes the weapon was misappropriated on or about that time, and the only dispute is about the identity of the misappropriator.
On August 18, 1954, Corporal Wing-field saw the accused at a local cafe in Hinesville, Georgia. He was no more than six feet away, in a lighted room, and observed that the accused had a pistol of some sort shoved inside his belt. Wingfield normally carried a caliber .45 pistol in the course of his duties and thus had more than a passing acquaint*368anceship with that particular type of weapon. While the Corporal admitted that he had seen only the butt and hammer of the weapon and conceded that he knew of “some 30’s” and “a 32” made upon the frame of a caliber .45 pistol, he testified that the weapon carried by the accused appeared to him to be an Army caliber .45 pistol. Two other Government witnesses testified that during the month of August 1954, they had seen the accused in possession of a pistol. While each had not seen it in its entirety, what they observed caused them to believe the weapon was an Army caliber .45 pistol. Both weapons were present in court and were seen by the witnesses and the court members. The witnesses pointed to the part of the weapon that was not obscured by the shirt of the accused, and the court members could visually notice the opportunity each had to make their respective identifications. Of course, the witnesses could not identify the weapon they observed on the person of the accused as the one produced at trial; but when their evidence is considered from its four corners, it would support a finding that the accused had possession of a caliber .45 pistol. In addition, any person familiar with weapons could distinguish a .45 caliber from a .32 and they would not need to see more than the butt and hammer of the former to be certain of their identification.
The next bit of evidence which is of some importance is found in the stipulated testimony of Sergeant Walker, of the Criminal Investigation Detachment. In my view, it is worthy of somewhat more extended consideration than the cavalier treatment given it by the majority. I quote from the stipulation:
“On 23 August 1954 I interviewed Pvt John C. Moten concerning a missing .45 cal. pistol. Prior to talking with him, I read Article 31, UCMJ, to him and told him I was investigating the disappearance of a pistol from the Post Stockade. I told him that he had been seen with a pistol in his belt at the Blue Moon Cafe in Hinesville. He told me that the pistol he had in his belt was a blank pistol but added, I suppose you are going to ask me about the .45 pistol that was stolen from the stockade on 29 June. During the course of our discussion he said he knew where the pistol was and that he would get it for me.”
It strikes me, and it could also have occurred to the court-martial members, that in this statement the accused volunteered too much information about the disappearance of the pistol and its then location. At trial he recanted on that portion of his admission which stated he knew where the weapon was, but reasonable men might accept his earlier statement and well believe that he knew where the pistol was because he had it secreted. The ways of mankind are such as to lead reasonable men to wonder why a person does nothing for a long period of time and then, when he comes under the eye of an investigator, suddenly takes it upon himself to be so helpful while proclaiming his innocence. See, for instance, the statement of facts in United States v Dykes, 5 USCMA 735, 19 CMR 31. After all, had the accused learned of the date of the loss from what he had heard around his unit, and if he knew where the gun was and that he could return it to military authority, why did he wait until the finger of suspicion was placed on him? Is it unreasonable to assume that he saw the web encircling him and that he joined the chase to avoid being caught in its meshes?
We come, then, to the evidence that on August 26, 1954, three days after his interrogation, the accused delivered the missing pistol to Sergeant Walker, and to another area of disagreement between myself and my associates. The majority seem to hold that one who is found to have the exclusive, personal possession of stolen or wrongfully appropriated propery some 51 days after it is taken (June 29 — August 18, 1954), does not possess recently stolen property. I say “seem to hold” because it is seized upon as a defect in the Government’s proof. But, contrary to my associates, I find this case is not United States v Duffy, supra, for here the evidence shows that from the time of the disappearance of the pistol to its return, *369the accused was the only person who is known to have custody, control or possession of the weapon, either constructive or actual, and he admits possession, albeit for a short period. Furthermore, the lapse of time mentioned in the majority opinion is only important in that the triers of fact might be less inclined to believe the possessor was the thief if the time interval is lengthy.
The present Manual for Courts-Martial, United States, 1951, paragraph 138a., page 240, provides as follows:
“Proof that a person was in possession of recently stolen property or a part of it raises a presumption that he stole it, and, if it is shown that the property was stolen from a certain place at a certain time and under certain circumstances, that he stole it from such place at such time and under such circumstances.”
That is the sort of presumption, inference, hypothesis, or whatever else it may be called, which will support a finding of theft or misappropriation unless countervailing evidence of innocent possession satisfies the court members that the possessor did not misappropriate the property. It is my understanding of the law that, within reasonable time limits, the question of whether property was recently stolen is a question of fact for the court-martial. It is true enough that the possibilities of an innocent explanation may be increased as time marches on, but to say that 51 days is so long a period of time that, as a matter of law, the property could not possibly be considered as recently stolen is contrary to the opinion of many well-recognized authorities.
In Wigmore, Evidence, 3d ed, § 152, I find the following:
“Possession of Stolen Chattels. On a charge of taking goods, the fact that A was found, subsequently to the taking, in possession of the goods taken is relevant to show that he was the taker. It is true that several other hypotheses are conceivable as explaining the fact of his possession; nevertheless the hypothesis that he was the taker is a sufficiently natural one to allow the fact of his possession to be considered as evidentiary. There has never been any question of this: [quoting cases]
“The inquiry is here as to the admissibility of the evidence, and only one or two questions capable of dispute have ever been suggested. The time of the subsequent possession is immaterial; the lapse of a long interval opens a greater possibility of innocent explanations, and may prevent the raising of a presumption of law, but does not alter the relevancy of the fact.”
In State v Oliver, 355 Mo 173, 195 SW 2d 484 (1946), the court had occasion to consider the question of recentness, and said:
“. . . What is meant by ‘recent possession’ must be determined from the facts in each case and may vary from a few days to many months. State v. Jenkins, Mo. Sup., 213 S. W. 796. Here the property was not discovered in defendant’s possession for about three months after the burglary, but evidence offered in defendant’s behalf shows that the property had been on defendant’s farm with his knowledge for some time before it was discovered by the officers. Under the facts here the possession was ‘recent,’ and the jury was not required to believe the explanation offered on behalf of defendant. State v. Denison, 352 Mo. 572, 178 S. W. 2d 449, loc. cit. 454.”
See also United States v Boyd [ACM S-3330], 7 CMR 710, where the accused was “seen” with the stolen property six weeks after the loss, and found in possession more than a year after the theft. In the light of those authorities, I would believe that the mere lapse of time is no more important to a proper finding by the court-martial than is the character of the goods stolen, their stability, their portability, and the question of whether the accused was found in possession of all, or only a part, of the stolen goods. State v Lyles, 211 SC 334, 45 SE2d 181 (1947).
Going one step further, the fact of possession of recently stolen property casts upon the accused the duty of pro*370ducing an explanation of his possession. Here he sought to do just that, and he testified that he did not misappropriate the pistol; that he inquired among his friends concerning its return; and that it was thereafter delivered to him by some one who left it under his pillow cover. He was corroborated to the extent that another witness testified he had heard the accused publicly announce that he was seeking the pistol. But were the court-martial members compelled to believe the accused, or could they reject the explanation and base guilt upon the other facts and circumstances? I have no hesitancy in proclaiming reasonable men could find the explanation a fabrication and that is precisely what this court did.
Three other matters bear answering. First, I am somewhat amazed by the statement in the Court’s opinion that the first defect in the Government’s case is that the investigators did not find the pistol at an earlier date, particularly when they had searched through the accused’s personal effects. In answer to that astounding conclusion, I merely state that a pistol is small, it is portable, it can be hidden without difficulty, and it is not likely the accused would secrete it in a place where it would be discovered on the first showdown inspection. Of course, overlooked in my associates’ argument is the conclusive testimony in the record that the weapon was not in his personal effects until some mysterious person placed it under the cover. Just why it is a defect in the Government’s case because the searchers fail to find a weapon in one place when the evidence shows it was not there escapes me. Apparently, the better the loot is concealed the greater the gap in the Government’s testimony.
Second, in order to reach a result that there is insufficient evidence in this record, the majority opinion argues that there are two possibilities of innocence flowing from the fact that the misappropriated pistol was charged out to Private First Class Connor. I quote: “One is that Connor did not return the weapon as he testified he did.” I submit that hypothesis of innocence is blasted by the testimony and findings. Connor testified positively that he returned the pistol within an hour after it had been checked out to him, and the court-martial must have believed he told the truth for they found the accused guilty. Is that finding not supported by Connor’s testimony?
Third, the next hypothesis of innocence offered by the majority is that the weapon must have been stolen from the orderly room between June 26, 1954, the date Connor returned the weapon, and sometime prior to June 29, 1954, the date when the accused came on the scene. The argument runs that the weapon was not logged in on the sign-in sheet and, applying the presumption of regularity, an assumption is made that it was not turned in to the arms room; that it was not permitted to kick around the orderly room; and that no one used it in the course of his duties during that three-day period. In my view, the argument founded upon the presumption of regularity is completely erroneous.
I agree that the sign-out roster — if it was an official record, and as I read the record it was not — evidences the fact that the appropriated pistol was not logged in when turned in to the arms room. In connection with its officiality, all I can ascertain from the record is that the arms attendant maintained a wall chart on which he entered his issuance and receipt of weapons. Whether the chart was a method devised by the attendant for his personal convenience or directed by someone else does not appear, and for the majority to label it as part of “the standing procedures of the arms room” does not clothe it with offi-ciality. However, for my purpose, I will assume there was a duty imposed by a competent authority to maintain the roster. But I heretofore had not supposed that the presumption of regularity must be indulged in once a record is effectively rebutted by other evidence. In this case, Corporal Estacio, who was responsible for the arms room in June 1954, testified that he counted his weapons daily; that on June 28, 1954, all of *371the pistols were in the arms rack; and that when he counted them on June 29, 1954, one was missing. Assuming more than is necessary, namely, that the chart disputes the testimony of the Corporal, the court-martial had the perfect liberty to discard it and accept the enlisted man’s oral testimony. When there is a direct conflict in facts, the court-martial may choose which version it will accept.
Reduced to simplicity and considered at this level, this case amounts to no more than this: An Army .45 caliber pistol was admittedly misappropriated; the accused some 56 days later became a suspect because he had been seen in possession of that type of weapon when he should not have had it in his possession; when he was subsequently contacted by military authorities he admitted he knew where the weapon was and that he would have it returned to military authorities; and three days thereafter he was able to make delivery because the weapon fortuitously appeared under his pillow. Now, on the one hand, if the court-martial was compelled to believe accused’s story that some unknown person placed the weapon under his pillow cover at just the convenient time and that he came into possession innocently, then reversal follows. On the other hand, if the court-martial could disbelieve his story and conclude reasonably that his explanation was unsatisfactory, affirmance follows. My associates chose the former, and I select the latter.
I would affirm the decision of the board of review.