(dissenting):
I dissent.
This is a relatively simple case of an accused being charged with a number of offenses because of his willingness to become a pawn in the hands of others dealing in contraband money. He was convicted of three separate specifications which grew out of one illegal transaction of accepting and attempting to convert old military payment certificates. All charges were based on violation of paragraph 10<J, Army Regulations 35-510, dated November 1, 1951. The first specification alleged that accused conspired with certain other named individuals to unlawfully convert $1,000.00 in old military payment certificates to a like amount in a new series after the cutoff date for conversions set by the Secretary of the Army. The second specification charged an unlawful acceptance on the same date of about $1,000.00 in the old series from Corporal Robert A. Powell. The last specification set out an unlawful attempt to convert the certificates by endorsing them preparatory to presenting them for exchange.
In so far as it is relevant to the present issue, paragraph lOcZ, AR 35-510, of the above-mentioned date, provided, “Under no circumstances will authorized personnel . . . accept or exchange military payment certificates after the date designated by the Secretary of the Army for their acceptance or exchange.” To complete the Department of the Army regulatory picture, the Secretary of the Army set May 25, 1954, as the conversion date. The offenses alleged in the specifications were committed, if at all, some three days thereafter, particularly on May 28, 1954.
As is noted above, paragraph 10d, AR 35-510, supra, places on the shoulders of the Secretary of the Army the duty to set the exchange date. However, Headquarters, United States Army Forces, Far East, was authorized by him to issue’ implementing conversion instructions. It issued some directions, and these were projected into the case by the accused, but they afford him no greater comfort than do those promulgated by the Secretary of the Army. I will, therefore, deal principally with the Secretary’s letters of April 30, 1954, and May 13, 1954, as they contain the essential directives for conversion. These are the provisions which I consider of importance:
“. . . In view of long period of time present military payment certificates series has been in circulation, appropriate action should be taken to ensure no disclosure is made that conversion is imminent to preclude unauthorized personnel circumventing objectives of conversion. . . . Public announcement of withdrawal of 421 series military payment certificates will not be made prior to Greenwich Civil Time 0400Z hours on ‘C’ day. Comprehensive announcements through official and public channels will be made by all available media. . . . Withdrawal of 481 series military payment certificates will be effected prior to Greenwich Civil Time 1100Z hours ‘C’ day. Effective Greenwich Civil Time 0400Z hours ‘C’ day, new series 521 military payment certificates will be the only medium of exchange within the U. S. military establishments. Issue of new series 521 military payment certificates will be effected as soon after Greenwich Civil Time 0400Z hours ‘C’ day as possible. Only authorized personnel will be permitted to convert military payment certificate holdings. Only one conversion per person will be permitted. Authorized personnel *595with dependents will be allowed one conversion per family except where members of family, other than head, are wage earners. ... A grace period between ‘C’ plus one day and ‘C’ plus five days inclusive will be allowed for conversion of old series 481 military payment certificates for authorized personnel who, under extenuating circumstances, without inadvertence on their part, are unable to convert the military payment certificates during the prescribed conversion hours on ‘C’ day. Conversions during this grace period will be effected by disbursing officers upon receipt of satisfactory written request, substantiated in writing, by commanding officers.”
The plan of exchange on “C” day, as outlined in these letters and other official documents, was relatively straightforward. Finance officers were prohibited from making individual exchanges of personal funds. These exchanges were to be handled through unit officers. At least one designated collecting officer was appointed in the smaller units. In the case of the unit with which we are concerned, two were appointed. These officers were required to accept the old military payment certificates and execute a receipt to the owner. The conversion period was to start at 1:00 p.m., Tokyo Standard Time, and end at 8:00 p.m. on the same day. A delay of several hours between the time the old certificates were turned in to the collecting officers and their return of new certificates was contemplated, as they were required to effectuate the transfer with the appropriate finance officer. According to one officer witness, the plan, as it was operated in the command to which accused belonged, started at 3:00 p.m. and ended at 1:30 a.m. the following morning. The details of. the conversion procedure were announced to the personnel of that unit over the loudspeaker system and by posting written instructions on the unit bulletin board. The plan envisaged a complete conversion of all outstanding certificates on the one designated day, except in those instances where unusual circumstances made it impossible for the owner to obtain possession of -his money within the stipulated time period. In that event, an entirely different method of converting the old money was prescribed.
II
The accused, among other contentions, complains vehemently that the Government adopted a method of proving its case which resulted in the court-martial judicially noting only part of the official records. To escape that criticism, even though unwarranted, I am going to consider every written regulation, letter, or other official document which he asserts might be beneficial to his cause, in spite of a record which discloses he did not rely on some of them or request their consideration at the trial level. But accused goes one step further and bottoms his assertion upon another contention to the effect that he cannot be charged with knowledge of secret official documents and that the court-martial, by taking judicial notice of the date of conversion, legally charged him with information he could not possibly know about. The short answer to the last contention could be that accused acknowledged that he knew the conversion date, but, to clarify the atmosphere on judicial notice, I make the following observation. The Manual for Courts-Martial, United States, 1951, provides that regulations and official publications of the Department of the Army may be judicially noticed, and, when I measure this record by that provision, I find there is no question about the propriety of the court’s taking judicial knowledge of the only matter of importance to this decision. It is to be noted that the Secretary of the Army, in order to prevent counterfeiting and manipulations which might result in a loss to the Government, sought to avoid a premature disclosure of the date of conversion. For that reason, when his instructions were transmitted, they were classified as secret. Of course, AB, 35-510, supra, was not classified and it is the basic source of prosecution in this instance.- Obviously, if secrecy of the proposed change in currency was to be maintained, the date and the exact *596details of conversion could not be published until just before the plan was to be placed in effect. But this did not preclude the formulation and preparation of specific details. These were worked out, reduced to writing, and classified as secret documents. However, when the alert was given, the prior prepared plans were immediately declassified and made public. In the case of accused’s unit, the time, place, and method of conversion were advertised commencing 1:00 p.m. on May 25, 1954, by posting the information on the bulletin board and by broadcasting it over the loud-speaker system. The accused, in a pretrial statement, conceded knowledge of the date of conversion, and, therefore, the only relevant items which were judicially noted, without being otherwise proven, were the provisions of Army Regulation 35-510, prohibiting acceptance and conversion of the certificates, and that the selection of May 25, 1954, as the conversion date was an official act by the Secretary of the Army. Both of those pieces of evidence were proper subjects of judicial notice.
Ill
With those matters properly in the record, this is the evidentiary framework as I see it. Both the acceptance and conversion of military payment certificates were prohibited after May 25, 1954. Three days later, the accused accepted $1,000.00 worth of certificates for the purpose of converting them for some unidentified persons who were unwilling to accept the risk of violating the law. For his efforts, he was to receive $250.00, a rather substantial sum for an act which my associates find legal. He proceeded to the personnel section of his unit with the prohibited currency in his possession, intending to convert the old money into the new medium of exchange. He was informed that he would have to consult a finance officer, and he thereupon sought out the one located in Tokyo. He was in the course of signing his name and serial number to the certificates, as required by the converting directives, when he was apprehended. As evidence of his consciousness that he was violating the law in his attempted conversion, it was shown that he first contended the money was earned by him and had been secretly cached away in his footlocker, and then, when the chain of circumstances tightened, he admitted being offered twenty-five per cent of the face value of the certificates if he succeeded in converting them.
A majority of the Court reach the conclusion that no offense is established because included in the letter from the Secretary of the Army is a provision that “Effective Greenwich Civil Time 0400Z hours ‘C’ day, new series 521 military payment certificates will be the only medium of exchange within the United States military establishment.” The author Judge reasons from that provision that only transactions which partake of being in the usual course of business are prohibited, and, as this accused did not accept the certificates as a medium of exchange, he is not guilty of violating the regulation. Overlooked entirely in that mental process are matters such as these: The unqualified proscription by Army Regulations; the undeniable right of the Government to control the free flow of temporary money; the fact that the provision of the letter was required, for it served the very useful purpose of authorizing military establishments such as post exchanges, officers’ and noncommissioned officers’ clubs, and licensed banks to cut off acceptances in sufficient time to permit them to make their conversion; the rule of statutory construction that the regulations and orders should be construed in the light of the purposes to be accomplished; and the admission by the accused that he sought to convert the certificates without any attempt to follow the only path which was left open after “C” day.
Because I believe there is a fundamental problem improperly answered by my associates, I prefer to approach the critical issue from a different standpoint. In occupied countries, it becomes necessary to issue temporary money, and the Government must use rapid methods of conversion to escape paying a heavy penalty to counterfeiters and *597black market operators. It must be able to legalize one series of money equivalent contemporaneously with the outlawry of another. To me, the Army Regulations are drafted to do just that, and they are clear and specific to the effect that when the word is spoken, transactions of every type with the outlawed money are prohibited. The old certificates are frozen in place, and only dealings with the new currency are permitted. That is the only feasible means by which unlawful trafficking can be controlled. Of course, in that method of exchange, it must be realized that some individuals are going to be separated from their money when the freeze is ordered and hardship will result to them if a scheme is not devised to permit them to be subsequently reimbursed for the certificates which have been outlawed. In this instance, the plan or scheme involved a tightly managed conversion after “C” day. Subsequent to that date, the means of conversion depended on the lapse of time, and the time periods were shown by the official documents and testified to by a finance officer. The portion of time of importance in this instance was the first five-day division after the conversion day. That period of time was marked off for those persons who could establish unusual reasons for their failure to convert on “C” day. It was not intended that exchanges amongst individuals, or transactions between possessors and others, were to be legalized; the extension was only to allow those who owned and held certificates on the cutoff date to save themselves from loss due to conditions over which they had no control. It is crystal clear the accused was not in that category, for it was incumbent upon one who sought to convert during that period to show unusual circumstances and have his application for conversion authenticated by his commanding officer. So far as this record appears, those steps were not taken by the accused, and for good and sufficient reason. At best, his circumstance was only unusual in that it was illegal, and obviously he would not seek authentication of his venture with his conspirators. In summation, reason, purpose, construction, and logic argue against an interpretation which reaches a conclusion that because the Government authorizes the new series of money to be accepted as a medium of exchange, it merely forbids the use of the old series to the same extent. Certainly, if transactions such as those are not prohibited, then the evil sought to be prevented, namely, loss to the Government, cannot be avoided.
It is argued that it could not have been intended by the Government to cut off all transactions with the old certificates, because to do so would make perfectly innocent acts unlawful. To do that, so the argument goes, would be making a crime out of conduct absent any criminal intent. To support the argument, some illustrations are offered. It is said the accused could have accepted the money as a gift; he could have converted legally had he used a prescribed method; or, he could have acted innocently as the agent for the true owner. Those illustrations lead us nowhere and could be demolished by saying we are not presented with any comparable hypothetical case; but if it is intended by such hypothesis to suggest that the Government must prove some mens rea, I would concur with that suggestion. However, the necessary criminal intent is established beyond dispute in this instance. Accused himself furnishes the testimony to show that his possession and attempted conversion were not innocent. Whether, in order to control counterfeiting or illegal use of temporary money, the Government can make the mere possession of an outlawed medium of exchange a crime, I need not determine. However, it is my conviction that in foreign countries, if conditions dictate, it can proscribe the circulation of a medium of exchange and demand its recall or conversion. If it seeks to regulate or eliminate a series of military payment certificates and promulgates regulations for those purposes, one who takes the forbidden currency, or attempts to convert it to legal tender contrary to the regulations, and under circumstances which show a guilty mind, can be brought to bar and his conviction sustained. *598If, to avoid a charge of confiscation, the Government provides a means of processing later cases involving exceptional circumstances and one claims he is in that category, the burden is on him to come forward and raise reasonably an issue that he is within the excepted class. That issue is not raised in this instance, and no other reason appears of sufficient merit to justify a reversal of all the findings and sentence.
In the interest of completeness, I should perhaps mention accused’s contention that the law officer erred in not striking witness Powell’s testimony that he had given the accused $1,000.00 in military payment certificates. The basis for the motion to strike was that the answer was incriminating. The contention can be answered by merely stating that the privilege is personal to the witness and should be claimed before the incriminating testimony is divulged. In the event the witness neglects to exercise his privilege, the accused is not in a position to complain.