(dissenting):
I dissent.
*414For a number of reasons I have not been able to follow satisfactorily the concepts set forth in the majority opinion. However, I will not belabor this dissent by discussing all of my areas of disagreement as two or three points of departure will suffice. First, it seems to me that my associates overrule the principles we announced in United States v Aldridge, 2 USCMA 330, 8 CMR 130. In that case we discussed instructions on specifications alleging violations of Article 121 of the Uniform Code of Military Justice, 50 USC § 715 (larceny), and Judge Brosman, speaking for the Court, had this to say:
“An examination of the legislative history of Article 121 discloses that it was the clear intent of Congress to create the single offense of ‘larceny’ and to abolish the technical distinctions theretofore existing among the crimes of larceny, embezzlement, and taking under false pretenses. Hearings before House Committee on Armed Services, 81st Congress, 1st Session, on H. R. 2498, at pages 815 and 1232. Thus, the particular means of acquisition of the property became relatively unimportant, and the critical question in each case now is the intent with which the property in question is held by the accused. If the accused intended permanently to deprive or defraud the person entitled to possession of the property of its use and benefit, or if he intended permanently to appropriate the property to his own use, or to the use of one not entitled thereto, he has stolen it in law and is guilty of larceny.
“The concededly tortuous course of this analysis is, we think, rather due to the inartful wording of Article 121, supra, than to deficiencies in ourselves. However, we do not sit in judgment on the phrasing of Congressional intent. It is simply our task to interpret and apply that phrasing and to serve that intent. Basically, the Article in question requires proof of no more than two elements: (1) that the accused obtained possession of the property in question, of some value, (2) with an intent, then or thereafter conceived, permanently to deprive the true owner of its use and benefit. The electicism expressed in the Article as to each of these elements is calculated merely to afford alternative means of establishing what we have discerned to be the essential and basic elements.”
After pointing up the difference between the variations of the crime of desertion based on separate and distinct intents, and larceny, based on the single intent to deprive the owner permanently of his property, the author Judge went on to state (page 332) :
“No such precise instructional specificity need be required in the instance of the crime charged in the case at bar, for the reason that there is but one offense of larceny. By the president’s instructions here— certainly no more inartful than the statute upon which they were based— the members of the court were required to find that accused had acquired possession of the sums of money specified, from the individuals named, and had intended permanently to deprive the rightful owners thereof. That is all that is demanded by the law. We, therefore, hold that there was no error in the instructions of the president in this particular.”
Under the rule of this case, it now appears that we have revived all the technical instructional niceties which plagued the courts before larceny, false pretenses, and embezzlement were merged into one, offense. I make the foregoing observation for the reason that the facts of this case permitted the court-martial to find a false pretense, a wrongful obtaining of funds, a wrongful withholding, and an intent to deprive permanently the Government of its money, yet we hold the conviction must be reversed because the law officer did not partition a single crime into three separate offenses by isolating the manner in which the property was obtained and the precise time when the intent to deprive was formed. If that burden must be assumed by him, then refined specificity in instructions and proof is still required and we did not *415mean what we said in United States v Aldridge, supra. Moreover, confusion will spring up in many cases because the element of intent is generally not susceptible of direct proof and the precise time it is formed is most difficult to establish. A striking analogy can be found in desertion with intent to remain away permanently. It is just as logical to require the Government to pinpoint the time that the intent to remain away permanently is formed as it is to require the prosecution to select the day the intent to deprive an owner of his property is conceived.
Second, the majority opinion seems to me to be inconsistent within itself. It first holds that the members of the court-martial may have acquitted the accused under the first two charges as a gesture of leniency rather than because of any lack of conviction as to the accused’s guilt. Then the opinion goes on to hold that we are compelled to assume that possession was obtained rightfully to determine the theory on which the case was tried. I am not willing to join in that doctrine as we are now dealing with a single conviction. The only assumption we are required to make from this record is that the court-martial found all of the elements of larceny present, and for some reason unknown to us, refused to find the accused guilty of making and presenting a false claim.
In Dunn v United States, 284 US 390, 52 S Ct 189, 190, 76 L ed 356 (1932), the defendant was charged with maintaining a common nuisance and with the unlawful possession and unlawful sale of intoxicating liquor. He was convicted on .the first charge of the indict-' ment and acquitted of the two other offenses. The evidence was to the effect that two prohibition agents, in a party of four persons, entered defendant’s poolroom and purchased six drinks of whiskey and beer. The sole base for the nuisance conviction was the. keeping or sale of the intoxicants and yet the verdict would indicate the jury found neither sale nor possession. The defendant, relying on inconsistent findings, asserted that the conviction could not stand,' but in answer to that contention the Supreme Court held:
“Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Latham v The Queen, 5 Best & Smith, 635, 642, 643; Selvester v United States, 170 US 262, 18 S Ct 580, 42 L ed 1029. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judi-cata of the other.”
Unless we are to reject that concept, I find no reason for us to be concerned about the findings of not guilty in this instance. And why concern ourselves with making the assumption that the court-martial found the accused obtained the money rightfully? If it wanted to return only one finding on a single transaction or if leniency was the motivating reason, are we compelled to substitute a finding of no unlawful acquisition of property? By what principle of logic do my associates convert their assertion that they cannot ascertain the reason for the findings of not guilty to a presumption that the accused obtained possession of the money rightfully? Had the larceny specification been tried alone, subsequent to a finding of not guilty of the other two offenses, I wonder if the same mental process would have been required. Certainly, if I were to indulge in presumptions in this ease, I would presume that the court-martial found present all the elements necessary to sustain the findings of guilt. It may be that I fail to grasp the nice distinctions made in the Court’s opinion, but if so, I suspect that the law officer who is assigned to retry this case will encounter the same difficulty. I know of no reason to believe that there will be any substantial difference in the testimony on a rehearing, and I am- at a loss to understand how he can tailor his instructions to meet the theories announced in the majority opinion. One question will perhaps illuminate his difficulties. Are the findings on the first two specifications res judicata and must he assume the accused obtained the money right*416fully? If so, we might save the Government time and expense by dismissing this action, as further prosecution will be futile.
Third, I contend that an obtaining of money by false representations is conclusively established by the facts of this case, notwithstanding the defense of mistake of law. It may be conceded that if in a hypothetical case an accused honestly was mistaken about the regulation, he might not have formed the specific intent to defraud the Government, but here his belief that he was entitled to receive payment in advance for his wife’s travel had nothing to do with the obtaining of the money. As the majority opinion states, § 7003-2 of the Joint Travel Regulations provides that the allowance payable for a dependent’s travel is to be paid after the travel has been completed. While the opinion seeks to strengthen accused’s position by suggesting that sometimes payments are made in advance, the intended support can be cast aside as trivial, for the reason that travel funds are paid in advance only upon retirement or separation of personnel from the service and advance payments for dependents’ travel are expressly prohibited. However, I need not labor the point that if the accused had shown future travel of his wife as the basis for the claim set forth in his voucher and then obtained the money, his ignorance or mistake might have been a good defense. What my associates overlook is that his asserted misunderstanding as to the law did not bring about the advance payment in this case. He stated he believed he was entitled to a present payment for future travel but his voucher did not set out a prospective trip across the continent. Instead, he falsely asserted a past fact, to wit, that his wife had completed the journey. That he would not have received the money in this case had he not on February 2, 1952, represented that his wife had left Petersburg, New York, on September 23, 1951, and arrived in San Diego, California, on October 17, 1951, or on other dates prior to the submission of the claim, is certain. His statement was no more nor less than a false representation made some four months after the transportation was assertedly completed, and he admitted on the witness stand that he knowingly made it without an honest belief in its truth. His counsel willingly conceded such to be the case, for in his closing argument he stated his understanding of the testimony in the following language:
. . under Article 132 there is another offense, about which you have heard nothing today, and I will go so far as to say it is this offense which the accused has committed. If he were on trial for it I would have to say that he committed it under a mistake of the procedure because he took this pay clerk’s, this disbursing lad’s statement that ‘don’t argue about those dates, sign it.’ The offense is making or using a false writing or other paper in connection with claims. That’s this right on the button. He signed his name to a certification that travel had been performed on dates, which in fact, were not so. There had been no travel in those dates. He knew it. He was home with his wife on that commencement date. That is a mistake in statement. That’s a false statement, and had he been tried for that, charged with that, he’d have been pleaded guilty, because you can’t get away from it, he signed that.”
Aside from the judicial admission by the accused and the concession by his counsel, there can be no question but that under the rule set forth in the Manual for Courts-Martial, supra, the Government’s case shows a false pretense.
Paragraph 200a(5) reads in part:
“. . . The pretense must be in fact false when made and when the property is obtained, and it must be knowingly false in the sense that it is made without an honest belief in its truth. A false pretense is a false representation of past or existing fact.”
Having obtained the money by knowingly making a false pretense, it follows that the accused illegally and wrongfully gained possession of the money. The Manual also covers that subject. At page 358 it reads:
*417. . As a general rule, a talcing or withholding of property from the possession of another is wrongful if done without the consent of the other, and an obtaining of property from the possession of another is wrongful if the obtaining is by false pretense.”
, It necessarily follows that no matter in which light I view this record, there simply is no causal connection between accused’s claimed mistake of law and his obtaining possession of the money. If I were to assume the law to be as accused asserts he believed it to' be, the result would be the same. His alleged honest belief that he might rightfully obtain money under one combination of circumstances is no justification for a holding that his intentional fabrication of an alliance of other facts is a possible means of obtaining money rightfully.
If it be accepted that the accused obtained the money wrongfully, then the only other element of the offense which I need to discuss is the intent to deprive the Government permanently of its property. In the Court’s opinion that issue is broken into two parts. The first is whether the facts and circumstances of this case permit a finding by the court-martial that the accused had the requisite intent to sustain a finding of larceny. The second is whether the Government must fix with certainty the time when the intent was formed. There can be no question about the proof of, and instructions on, the presence of the criminal intent. Under accused’s own theory he intended to deprive the Government permanently of the money. His story was inconsistent with any other intent as he claimed the funds as his own to use as he saw fit. To escape from that dilemma, my associates say that the findings are vulnerable because the court-martial was permitted to speculate as to whether the intent was formed at the time of the original taking or thereafter. Apparently they arrive at that conclusion because the court-martial was permitted to arrive at a finding on either of two theories, or a combination of both, namely, that the accused obtained the property wrongfully with the concurring intent to deprive permanently, or he obtained the property rightfully and thereafter wrongfully withheld it with the essential criminal intent. I find no valid reason to strike down that method of arriving at a finding. A single offense need not be dissected into its various methods of commission by either instruction or proof and the Government is not required to limit its theory to any particular means. Neither must it select, at its peril, the precise time the criminal intent is formed. Certainly this record is sufficiently specific in both regards to sustain the conviction, and I have no reason to set this case apart from the ordinary larceny offense. Merely because one court member posed a question does not require us to depart from well-recognized principles of military law. I cannot, of course, determine the reasoning used by the court members in arriving at their findings, but I do know that they found the offense to have been committed on or about February 2, 1954, and that was the day the accused obtained the money. Without resorting to speculation or conjecture, I find nothing in the record to impeach that finding. Admitting inconsistency in the three findings as previously mentioned, that is not fatal to the one involving larceny because we have three alleged crimes arising out of substantially one transaction. The court-martial could have returned a finding of guilty on all three, and there would have been present the necessary instructional framework and sufficient evidence to support all findings. The court-martial did not do so, but the accused is in no position to complain because an adverse verdict was not returned on all specifications. Dunn v United States, supra. If we are to give more than lip service to the rule of that case, it must be concluded that this conviction for larceny need not be overturned because all members did not agree as to the day or the hour when the criminal intent was formulated. The matter of moment was not the time when the intent was formed, but whether it was conceived while the accused was in wrongful possession of the property. On that element there was the required meeting of minds.
*418An interesting development in this case is the fact that the law officer originally instructed only on the theory that the accused intended to steal at the time he received the money. The instructional error discussed in Part VI of the majority opinion was brought about by a specific request of defense counsel. After the law officer completed his preliminary charge, the instructions were considered during an out-of-court conference. After termination of the conference, the law officer made certain explanatory remarks, and then said:
“. , . There has been a request to charge by defense counsel of two additional charges, which I will read to the members of the court.
“The court is advised that a person who takes, obtains, or withholds the property of another, believing honestly and reasonably, although mistakenly, that he has a legal right to acquire or retain the property, is not guilty of an offense in violation of Article 121, which is the offense charged under Charge II and the specification thereunder, the larceny charge.”
It was after that requested instruction was given that a member posed his question concerning the date of the formation of the intent to deprive permanently. The law officer answered by instructing further in the words of the Manual set forth in Part II of the majority opinion, and his instruction accurately submitted what I view as a sound theory upon which a conviction could be predicated. If it is not, the doctrine of larceny as announced by the Manual and approved by us in United States v Aldridge, supra, must be disregarded.
I have no disposition to part from my associates on their holding to the effect that an instruction that a mistake of law must be both honest and reasonable is erroneous. We have so held where a mistake of fact was involved, and in many instances a mistake of fact and a mistake of law are so closely interwoven that it becomes difficult to isolate one from the other. However, I call attention to the fact that in this case defense counsel requested the law officer specifically to instruct in the language which is now under attack. It is a bit unusual to permit counsel for an accused to request an instruction in specific language, have the law officer give the instruction as requested, and hold that he thereby committed error. In most instances that would be an invitation to err and defense counsel should not be permitted to raise self-invited error on appeal. My reason for concurring in this instance is that the law officer had previously given an instruction in substantially the same language and the record does not disclose whether it, too, was at the request of defense counsel. If the record were clear as to that point, I would not so much as consider the claimed error. But, in view of the fact that the record is clouded, I am willing to give the accused the benefit of the doubt and find that the law officer misinstructed in the first instance. However, because I have concluded that the accused’s asserted mistake of law did not procure the payment of his claim for travel allowances, that he obtained the money involved only because of an admittedly false pretense, and that he necessarily thereafter held the money wrongfully, I would be unable to agree that he was prejudiced by an erroneous instruction on a subject not in issue.