(concurring in the result) :
I concur ins the result.
I find it necessary to .pen a separate *86opinion in the case for two reasons: First, because the majority opinion fails to respond to the first certified issue, and second, while phrased in an ambiguous manner, the question can be interpreted to request our opinion on the effect of a mistake of fact in cases involving either a specific or general criminal intent. I reach that conclusion because the specification originally alleged willful disobedience, but now, because of the action of the convening authority, presents the included offense of failure to obey.
The perplexity occasioned by this case may spring from the fact that in our opinions we have differentiated on an individual basis between offenses where an accused must defend on a mistake or ignorance of fact which is both honest and reasonable, and those crimes where his defense may be predicated on an honest mistake alone.
There seems to be little difficulty in applying the appropriate test for offenses founded on specific intent. For instance, in United States v Rowan, 4 USCMA 430, 16 CMR 4, we considered a conviction of larceny by check. The issue therein involved was whether or not an instruction which required the mistake to be both honest and reasonable was erroneous. In view of the fact that we were dealing with an offense which involved a specific intent to deprive an owner permanently of his property, we held that an instruction which required both conditions placed an undue burden on the accused.
In our earlier decisions, ignorance or mistake of fact has been held to constitute a defense in general intent cases only in instances involving the possession or use of habit-forming drugs or marihuana, and then the issue has been principally whether that defense negated knowledge of the presence of the drug. United States v Hughes, 5 USCMA 374, 17 CMR 374; United States v Reese, 5 USCMA 560, 18 CMR 184; United States v Greenwood, 6 USCMA 209, 19 CMR 335; United States v Grier, 6 USCMA 218, 19 CMR 344.
In United States v Perruccio, 4 USCMA 28, 15 CMR 28, we were confronted with a case involving negligent homicide. In that instance, a general intent offense only was involved. There we reasoned that, before a mistake could be a defense, it must be both honest and reasonable. One of the elements of that offense was negligence, and obviously the accused could not escape a finding of guilty by a showing that he acted without due care.
A somewhat similar problem was presented to us in United States v McCluskey, 6 USCMA 545, 20 CMR 261. In that instance, we held that, where the offense charged was bigamy, accused’s mistake of fact must be both honest and reasonable to constitute a defense. Federal law is to the same effect. Alexander v United States, 136 F2d 783 (CA DC Cir) (1943).
While in United States v Mardis, 6 USCMA 624, 20 CMR 340, the writer did not have the concurrence of the Chief Judge, I concluded that only an honest and reasonable mistake of fact would serve as a defense to a charge of keeping a disorderly house. Once again, Federal law is in agreement with this. De Forest v United States, 11 App DC 458 (1897).
Turning to fields not yet explored by this Court, other Federal courts are far from adopting a general rule that honest mistake or ignorance of fact will serve as a defense to crimes involving only a general criminal intent. In Stone v United States, 113 F2d 70 (CA6th Cir) (1940), it was held:
“Where guilty knowledge is an element in the offense, as in conspiracy charges and the use of the mails to defraud, the knowledge must be found from the evidence beyond a reasonable doubt, but actual knowledge is not required; it may be inferred. Scienter may be inferred where the lack of knowledge consists of ignorance of facts which any ordinary person under similar circumstances should have known. Ignorance of inculpatory facts is no more a defense than ignorance of inculpa-tory law. There is evidence that each of the appellants knew, or could have known by the exercise of rea*87sonable diligence, that the statements made to prospective purchasers concerning the value of the stocks of the respective corporations were false.”
In Townsend v United States, 95 F2d 352, 358 (CA DC Cir) (1938), it was said, in connection with a charge of willful default after having been summoned as a witness by the authority of Congress, that, “Justification may also be based upon a mistake of fact by the defendant, where his mistake is a reasonable one and where the fact — if it were as he believed it to be — would have constituted justification.”
In United States v Pinkston, 6 USCMA 700, 21 CMR 22, we held that failure to obey may be based on heedlessness or simple negligence, and it would therefore follow, from what I have outlined above, that mistake of fact must be both honest and reasonable to be a defense to this charge. Although I suppose it could be argued that mistake of fact can never be a defense to the crime of failure to obey, the contention is without discernible merit, as I do not believe it is an insurer type of offense, providing for strict liability without fault, United States v Pinkston, supra.
As to the second certified question, I agree that no issue was raised as to an honest and reason- able mistake of fact. First of all, it is at least doubtful that the accused asserted any such defense. According to his sworn testimony, he did not even hear the giving of any order, and thus claimed an ignorance of fact, if anything. Assuming that the . certified issue refers to a claim of ignorance as well as mistake — and the same rules would apply in this case — I cannot view this claim as reasonable under the circumstances. The order was given in a loud tone of voice at a time when the sergeant was within twenty feet of the accused. They were facing each other, and the order was plainly audible to others who were nearby. In addition, the accused tacitly admitted that he had heard the order, for after he returned to the base, he informed his supervisor that he had gotten embroiled with a master sergeant at the Seadrift facility.
Assuming the certified issue refers to the testimony by the accused to the effect that he had been instructed to wait no more than fifteen minutes beyond the time shown on the trip ticket before returning to the motor pool, I cannot view the testimony as raising an issue of honest and reasonable mistake. Sergeant Fillion testified that his instructions concerning off-base runs required the driver to remain with the persofi requesting the vehicle until such time as that person’s business was completed, before returning to the motor pool. Sergeant Fillion also testified that on on-base runs, the drivers were to wait fifteen minutes after the requested time had run out and then return to the motor pool. The accused, by his own admission, had been operating under these instructions for over six months, and his normal assigned duty was as a truck driver in daily operations. Under these circumstances, I cannot view his mistake as reasonable. Furthermore, in the absence of any instructions at all, any one with wit enough to serve as a truck driver in normal operations should know better than to go off and leave his passenger — whose work had not been completed — isolated at a facility located thirty miles from the main base with no other transportation available to him.
Judge Ferguson did not participate in the decision in this case.