(dissenting):
The accused was charged with drawing a weapon against his superior officer and willful disobedience of an order by the same superior officer, “to halt, stop, and surrender a knife in his possession,” in violation of Article 90, Uniform Code of Military Justice, 50 USC § 684. He was acquitted of the former but convicted of the latter offense except the words “surrender a knife in his possession.”
The accused and Private White reported a beer hall disturbance to the military police. Afterward, for the purpose of investigating the disturbance, they, in company with a Sergeant Sutton, were transported back to the company orderly room. Sergeant Sutton, drunk and belligerent, was ordered to his barracks by Lieutenant Larkin, the Company Executive Officer. Thereafter, the accused, who had remained quiet and cooperative, received permission from Lieutenant Larkin to retire to his barracks. Before leaving, he addressed Larkin as “Lieutenant” and “Sir.” Shortly after the accused left, a scream emanated from the billet area. Lieutenant Larkin, Sergeant Greene, and Corporal Guier went “on the double” in that direction. They saw the accused running toward the orderly room with his hands over his face. According to Sergeant Greene, the accused was crying, and from all appearances, he was “extremely excited.” ' Although the night was dark, the headlights of two jeeps and a number of flashlights illuminated the area. Larkin approached the accused. His testimony as to what transpired is as follows:
“. . . I ran toward Jackson, who had his hands up to his face and said ‘Jackson, what’s the matter’ and he said ‘They jumped me’ and I said ‘Who jumped you’ and he said ‘They jumped me, I’ll kill the . . .’ and I said ‘Who, Jackson? What’s the matter?’ and I lowered his hands from his face and there was no damage, no blood or sign of any injury, and I said ‘Jackson, what’s the matter? Stay calm and let me find out what this is about.’ and Jackson then pushed me aside, turned to his right, reached into his left hand pocket and withdrew an object.”
The accused dashed off in the direction of the billets with Larkin in close pursuit. Lieutenant Larkin further testified that:
“. . . When he approached the line of the troop billets, within a yard and a half, I continued yelling to him to stop, put down the knife, don’t go any further, Jackson turned to the right and in his left hand was the knife. He stopped immediately, but his momentum carried him momentarily further and he made a motion at me with his arm extended, and the knife left his hand.
“His momentum carried him on around to the right as he turned and passed me ... I hit him in the back of the head with the flashlight.
In all, Lieutenant Larkin pursued the accused twenty to thirty yards. He could “very easily” have overtaken Jackson but he tried “by voice to make Jackson listen” to him. At no time did he identify himself as an officer and he had no idea whether the accused understood him. He was wearing fatigues, which displayed his insignia and rank; however, the accused gave no indication of recognition nor did he say “sir” or “Lieutenant Larkin.” Under the circumstances, Lieutenant Larkin “couldn’t say” whether or not the accused understood his shouts to “stop, put down that knife, don’t go any further, stop.” Larkin testified that as best he recalled the accused was not crying when he was first stopped. However, he admitted that he was “excited” and that he spoke to accused for “just the time it took to speak about four sentences . . . and lower his hands in front of his face.” He also thought it was “unusual” for a man to run with his hands in front of his face, Further questioned *73about the accused’s emotional state, he testified as follows:
“Q. Did you have any significant reaction as to whether he knew what he was doing, or what was your reason for telling him to calm down?
“A. That was the most important thing — I had to have some semblance of his being calm, so I could question him and he could answer questions.
“Q. Did you feel that he was at all psychologically prepared to receive an order to stop when you gave it?
“A. I had no other choice but to give the order.
“DC. But you don’t know whether he even knew he was given an order?
“A. I cannot say.”
Sergeant Greene gave evidence that:
“A. Private Jackson broke loose from Lieutenant Larkin — he ran around Lieutenant Larkin and went beyond him, and he told him to stop— he just said ‘Stop’ about two times.
“A. And when Jackson slowed down almost to a stop, he came around with his arm ... I don’t know whether he was coming through or swinging at him, because at that point Lieutenant Larkin hit him with the flashlight.
“Q. Did you see anything in Jackson’s hand?
“A. No, sir.
“Q. What were the lighting conditions in this area at the time of this incident. . . .
“A. The lighting conditions there— it was poor, very poor.”
In the sergeant’s opinion, the pursuit covered approximately 15 yards and lasted three to four seconds. Moreover, he was convinced that the accused was “out of his head.”
Corporal Guier testified that the night was dark and his recollection of the events was:
“. . . Jackson swung around and was running towards the billeting tents and he [Lieutenant Larkin] caught up with him again, and I was still more or less running in the general direction where it happened ... I saw him slapping Jackson’s hands and say to drop it, to drop it, and then Jackson was on the ground.”
Guier did not notice a knife in the accused’s hands.
Private Gale was walking guard when he heard a “terrifying scream.” He ran in that direction and, although only a short distance away, arrived upon the scene as Lieutenant Larkin was chasing Jackson. He was not aware of a knife in the accused’s hand, and at no time did he see Jackson make a motion to strike Lieutenant Larkin.
The problem in this case is whether the evidence to the effect that the accused recognized Lieuten- ant Larkin as his superior officer, and willfully disobeyed him, excludes every reasonable hypothesis of innocence. This Court has held that the evidence is insufficient “to sustain a finding of guilt if all reasonable minds would agree that the evidence did not destroy every rational hypothesis of innocence.” United States v Williams, 4 USCMA 69, 15 CMR 69. Put differently, the evidence is insufficient to sustain the verdict if, as a matter of law, reasonable minds agree that a rational hypothesis other than guilt can be drawn from the evidence. United States v O’Neal, 1 USCMA 138, 2 CMR 44; Leslie v United States, 43 F2d 288, 289 (CA10th Cir); (1930); Stoppelli v United States, 183 F2d 391, 393 (CA9th Cir) (1950). Applying these principles to the instant, case, I conclude that the finding of guilty and the sentence should be set aside for reasons of insufficiency.
Implicit in willful disobedience of a superior’s order is the accused’s knowledge that the order did in fact emanate from a superior officer. The interim/ from the scream until the incident was closed by Lieutenant Larkin’s flashlight, lasted approximately forty-five seconds. The night was dark, the accused was crying, greatly agitated, and, in Sergeant Greene’s testimony, “out of his head.” By his own admission, Larkin was unable to elicit one coherent statement from the petitioner; his (Lar-kin’s) words “made no impression.”
*74The fact that the accused previously knew Lieutenant Larkin does not require an inference that he recognized his superior officer under the unusual circumstances of this incident. As Larkin approached, the accused not only was emotionally upset, but he also had his face covered with his hands. Coincidentally, when his hands were lowered by Larkin, the accused sprinted away. Furthermore, only a second or so elapsed during the interval from Larkin’s arrival until Jackson pushed from him and began to run. Larkin testified that he had only the “time it took to speak about four sentences to Jackson and lower his hands from in front of his face.”
Aside from the question of recognition, the facts of this case do not establish a willful defiance of au fhority. A violation of Article 90, Uniform Code of Military Justice, 50 USC § 684, presupposes disobedience in a positive and deliberate manner; a conscious intent to disregard a superior’s orders, and not disobedience prompted by hysteria or heedlessness. A conscious and rational mental operation is required, or there is no intentional act. “The willful disobedience contemplated is such as shows an intentional defiance of authority.” Paragraph 169b. Manual for Courts-Martial, United States, 1951.
According to Sergeant Greene, only three to four seconds elapsed during Lieutenant Larkin’s chase of the petitioner. At most, it could not have lasted over five seconds. It is logical to assume that some time after Jackson broke away and began to run, the order was given to stop. According to the witnesses, after travelling fifteen to twenty yards, he turned to the right and actually stopped or markedly slowed down. Considering all the facts in this case, a delay of three or four seconds in obeying an order does not amount to disobedience, much less willful disobedience. This is apparent if we direct our attention to the probable reason the accused altered his flight. Either he did so out of a desire to assault Larkin, who appeared to be hampering the commission of his objective; or despite the confusion, he still recognized an order to stop. The majority make much out of the accused’s possession of a knife. They even maintain that the accused attempted to use it on the officer. However, the trial court found the accused not guilty of raising a knife against his superior officer; it also found him not guilty of the charge that he wilfully disobeyed the order to “surrender a knife in his possession.” That would seem to dispose of the first alternative. Nevertheless, the Government argues that we disregard the trial court’s finding, and conclude that the accused did intend to assault Larkin, in making a determination as to willful disobedience. Contrary to the majority’s conclusion, I believe that contention can be supported only upon the basis of conjecture, speculation, and suspicion. United States v Shull, 1 USCMA 177, 2 CMR 83. It flies in the face of the court-martial’s specific findings.
Turning to the second reason, namely, that the accused understood an order to stop had been given,- but nevertheless refused to obey it.' Carefully considering all the 'facts concerning'this matter, I cannot say, as a matter .of law, that the evidence' of willful disobedience of Lieutenant Larkin’s order establishes the .accused’s guilt beyond a reasonable doubt. In accordance with our decision in United States v Peterson, 1 USCMA 317, 3 CMR 51, within the fair operation of reasonable minds, the evidence in this case is as consistent with innocence as it is with' guilt. I would reverse the findings of -guilty and dismiss the charge.