(dissenting):
The question presented for our review is whether the law officer should have instructed on lesser included offenses. This issue results from the accused’s contention that, at the time of the homicide, they were not attempting robbery but were merely endeavoring to recover military payment certificates belonging to the accused Starr.
After some drinking, Sergeants Mc-Callion and Starr left their company area, at about 12:30 a.m. on June 5, 1954, to “have a look” at some Korean prostitutes that were reported to be operating at the rifle range. Arriving at the pits of the range, they were challenged by Private Trojanovich, one of the two sentinels stationed to guard the range area. When they had identified themselves, they inquired as to the whereabouts of the other guard. Tro-janovich informed them that he was behind the pits. Kachougian was the other guard. He had left his post on hearing a whistle which indicated the presence of prostitutes. Kachougian “Evidently saw” Starr and McCallion because he “directed” them with his flashlight to a point about seventy-five yards from the pits. About one half hour later, the accused and McCallion returned to the pits. A few minutes *159earlier, Chae You Choe, a Korean male, had been shot and killed by Kachougian.
Eight persons were present at the immediate scene of the homicide. Besides the accused and McCallion, there were three Korean women prostitutes and two Korean males, one of whom was Chae, the deceased. Six of these persons gave evidence in one form or another. Although the exact sequence of events from the time of Starr and Mc-Callion’s arrival is not too clear, there is agreement on most of the important elements required to establish the prosecution’s case. The point of disagreement is in regard to the intention of each accused.
It appears that after Starr and Mc-Callion joined Kachougian and the Koreans, there were some moments of jocularity. McCallion fell two or three times and “they all laughed” at him. McCallion then “went off to one side” with one of the girls. What each accused did during the period that Mc-Callion was away does not appear too clearly. Neither of them testified at the trial. Each, however, gave a pretrial statement to Criminal Investigation Detachment agents which was admitted in evidence. In his statement, Kachougian implies that he had intercourse with one of the prostitutes. Thus, he first indicates that Starr abstained; then he says, “After we finished” the incident arose which culminated in Chae’s death. Starr’s statement does not mention his conduct during this period. In any event, all persons at the scene reassembled after McCallion had concluded his sexual affair. The Koreans started to leave. McCallion also started to leave. He said, “Come on Starr, let’s go.” Starr replied that “he wasn’t going until he got his money back.” McCal-lion did not know what Starr meant by this remark. Kauchougian also refers to Starr’s reply. He says that Starr remarked that “he was going to ‘roll’ them and get his money back.” He did not “explain what he meant.” According to Starr’s pretrial statement, he had told Kachougian when he arrived on the scene that he “had came to see if I could get some of the ninty [sic] dollars ($90.00) back that had been stolen from me on or about the 2nd of June 1954 by some Korean Pimps.” At this point, he said, “Lets try to scare them.”
In their respective statements, the accused admit that Starr told Kachoug-ian to “cover” the Korean men. Kachougian inserted a round in the chamber of his carbine, which was in automatic firing position. He ordered Chae to assume a squatting position. Hong Jae Hoo, the other Korean male, heard “the noise loading bullet in rifle.” Although he didn’t know whether the weapon was pointed at him, he was “scared.” Chae told him to put up his hands, and he did so. McCallion entreated Starr to leave. Starr’s own “idea” however, was to search the Koreans and “take any MPC’s they might have.” He went over to Hong and searched his pockets. He removed a wallet and a belt. The wallet was empty and Starr discarded it, along with the belt. Hong asked if he could return the articles to his pocket and Starr consented. Just then three shots rang out. .
Pyan San Im, one of the Korean women, testified that Kachougian “yelled to Chae” to “hold hands up.” Chae tried to stand up; then the shots were fired. Kachougian explains the shooting as follows: “Suddenly the Korean who was squatting in front of me jumped at me. I was holding my carbine at my hip, my left hand was on the balance of the stock, my right hand was around the trigger guard. When the Korean jumped at me, somehow or other my finger hit the trigger, and I fired a burst of three rounds . . The Korean was hit, and fell on his face, and was groaning.”
Starr, a medical aid man, examined Chae. He found a bullet wound near the left shoulder blade. He did not think it was serious. Accordingly, he told the other Koreans to take Chae to the village for treatment. He, Kachougian, and McCallion, returned to the rifle pits. Kachougian called the guardhouse on the guard’s “walkietalkie” and reported the incident. Later, Chae was taken to the Norwegian Mobile Army Surgical Hospital. He died at 9:05 p.m. It was *160stipulated that the cause of death was a “severance of the spinal cord and punctures of both lungs, which in turn were caused by a penetrating bullet wound.”
At the trial, defense counsel requested an instruction on lesser included offenses to the homicide charge. This request was based on the theory that if a robbery had been attempted as to Hong, it had been terminated before Chae was shot. The request was denied, and no instructions on lesser included offenses were given. However, the law officer instructed the court as follows: “Also, if in your deliberations, you wish to consider any offense as a lesser included offense, you should open and request my advice as to whether such offense is lesser included, and, if t so, instructions as to the elements thereof.”
Before considering the specific issue before us, I think it important to reemphasize the responsibil- ity of the law officer in regard to instructions. The law officer must provide the court-martial with the legal framework for it deliberations on the facts. Proper performance of that duty requires the law officer to consider whether the evidence reasonably raises lesser included offenses to those charged. If it reasonably appears that lesser offenses are raised, he is required to instruct on the elements of those offenses. Court members are presumed not to be learned in the law. Consequently, they are neither equipped nor required to determine whether lesser included offenses are before them for consideration. Plainly, therefore, the law officer acted improperly in not himself evaluating the evidence for that purpose. See United States v Floyd, 2 USCMA 183, 188, 7 CMR 59.
Turning to the specific issue, some general principles should first be set out to provide an appropriate frame of reference. Robbery is a compound offense consisting of an assault and a larceny. United States v Calhoun, 5 USCMA 428, 18 CMR 52. The latter component requires an intent permanently to deprive the owner of the possession or use of his property. Such intent is lacking when one attempts to, or actually does, take property from another under an honest claim of right. United States v Smith, 2 USCMA 312, 8 CMR 112; State v Goldsberry, 160 Kan 138, 160 P2d 690. Consequently, it is not robbery to take property from the possession of another under an honest claim of right, even though the taking is accomplished by force or violence. United States v Smith, supra; People v Rosen, 11 Cal2d 147, 78 P2d 727.
In United States v Johnson, 3 USCMA 209, 213, 11 CMR 209, we held that, unless inherently incredible, a pretrial exculpatory statement by an accused which is admitted in evidence should' be accepted by the law officer in framing his issues “as though the accused had given the statement from the witness stand.” Here, the matter is complicated by the fact that there are two accused. In a joint or common trial of several ac cused, a pretrial statement by one can be used only against him. United States v Borner, 3 USCMA 306, 12 CMR 62. At the same time, the effect of his exculpatory statement is generally limited to him. As to his coaccused, the statement is hearsay. Consequently, unless the statement falls within a recognized exception to the hearsay rule, it is inadmissible as to the coaccused. And, even if admitted without a limiting instruction by the law officer, the statement does not, in military law, become, part of the competent evidence in the case as to the other accused for the purpose of determining the issues as to them. United States v Manuel, 3 USCMA 739, 14 CMR 157. Accordingly, in reviewing the evidence as to each accused, it must be determined whether the pretrial statements of one may properly be considered with the pretrial statements of the other.
Specifically, the problem is whether two of Starr’s statements are also competent evidence for Kaehougian. The statements are, (1) that Starr told Kaehougian that he had come “to see if I could get some of the ninty *161[sic] dollars ($90.00) back that had been stolen from me ... by some Korean Pimps,” and (2) that he said to Kachougian, “Lets try to scare them” before he told Kachougian “to cover them with his Carbine.” Both statements were admitted in evidence. As to Kachougian, the truth of the statements is not important. What is important, however, is the fact that they were made. Hence, they are independently relevant, and may be properly considered in evaluating the evidence as to him. Manual for Courts-Martial, United States, 1951, paragraph 139a. See: Wigmore, Evidence, 3d ed, § 1777 (6).
Inasmuch as Kachougian fired the fatal shot, I direct my attention first to him. His conduct must judged in connection with his own intention at the time of the commission of the homicide. Depending upon his state of mind, he may be guilty of a different offense from that of his coaccused. United States v Jackson, 6 USCMA 193, 19 CMR 319.
Two purposes for Kaehougian’s action appear from the pretrial statements: (1) That he was trying to help Starr recover money that had been previously stolen from him by “some Korean Pimps,” and (2) that he wanted to help Starr “scare” the Koreans. The latter intention would negative entirely the larceny element of the offense charged. However, in view of my discussion on the first of the declared intentions, I need not determine whether the second is reasonably raised by the evidence. Considering the first, Starr’s remark is ambiguous. It may be construed in either of two ways. Looked at one way, it implies that Koreans other than Hong and Chae had stolen Starr’s money, but that he was going to recoup his loss from them. Alternatively, the statement implies that Hong and Chae were the persons who had stolen Starr’s money. In one part of his own statement, Kachougian maintains that Starr did not “explain what he meant” when he said he wanted “to get his money back.” But Starr’s meaning was made unmistakably clear in the remarks that Starr addressed to Hong when he searched him. Unfortunately, these remarks were blocked out of Kachougian’s statement, and the law officer instructed the court not to consider them. We must take the record as we find it, even though it means that an actual fact is repressed by the uncertainty of the proof. United States v Beninate, 4 USCMA 98,15 CMR 98.
Undeniably, some of the evidence supports the view that Starr’s declared intention was to take military payment certificates from Hong and Chae, although they were not responsible for stealing his money. Thus, Starr was in their presence for a half hour without in any way indicating that he believed them to be the guilty persons. On the contrary, he joined them in the general levity at McCallion’s unsteadiness and, apparently, he quietly waited in their immediate presence until McCallion and Kachougian rejoined them. Only when the Koreans were preparing to leave did he take action. And he prefaced his action by saying that he was going to “roll” the Koreans. In a commonly understood sense this word is synonymous with “rob.” Webster’s New International Dictionary, 2d ed, page 2161. On the other hand, there is evidence from which the court members could conclude that Kachougian believed that Starr was acting lawfully. Both Kachougian and McCallion refer to Starr’s insistence that he wanted “his money back.” The stress here is on the claim of a right to possession. Starr told Kachougian, on his arrival at the scene, that he had come to recover money that had been stolen from him by “some Korean Pimps.” His abstinence from intercourse tends to support that assertion. Consequently, when Starr determined to search the Koreans, the court-martial could find that Kachougian reasonably believed that Starr was proceeding under a lawful claim of right. Certainly, his attitude immediately after the offense is more consonant with an innocent purpose than with an attempted robbery. As soon as he returned to the rifle range pits, he reported the shooting to *162the guardhouse.1 In my opinion, therefore, there is sufficient evidence to require an instruction on lesser included offenses as to Kachougian.
If the court believed that Kachougian possessed an honest belief that he was merely helping Starr to recover money stolen from him, Chae’s death would have occurred in the course of an aggravated assault rather than as a result of an attempted robbery. In that event, his guilt would be no greater than that of manslaughter, in violation of Article 119, Uniform Code of Military Justice, 50 USC § 713. On the same basis, Kachougian would be guilty of no more than an assault with a dangerous weapon as to Hong, assuming that the evidence would support such a finding. Consequently, the law officer erred in failing to instruct on these lesser included offenses. United States v Jackson, 6 USCMA 193, 19 CMR 319.
Considering the evidence as to Starr, much of what I have said in regard to Kachougian is applicable to him. There is, however, this important difference. Starr’s words and conduct must be considered in the light of what he personally had in mind, not as they may have been interpreted by another. Granting his contention that he went to the area to recover the money stolen from him, the question is whether he then knew or honestly believed that Hong and Chae were the thieves. The part of Kachoug-ian’s statement which was blocked out provides a definite answer to this question. But, as I have noted, we cannot look to it. However, even confining ourselves exclusively to the evidence in the record, it is still apparent that Starr labored under no misapprehensions.
Hong testified that he had never seen Starr before the night of the shooting. This testimony is uncontradicted. Therefore, it is sufficient to exclude the possibility that Starr actually knew that Hong was one of the Koreans who had stolen his money. Did Starr then merely believe that Hong was one of the thieves ? His statement makes no mention of such a belief. Rather, it implies that Starr realized that Hong and Chae were not the wrongdoers. He says that when he told Kachougian to “cover” the Koreans, it was “my idea” to search them and “take any MPC’s they might have.” His subsequent conduct changes the implication to a clear declaration that he knew that Hong and Chae were not the persons who took his money. Thus, in the afternoon of the day of the shooting, Starr discussed the incident with his commanding officer. At the conclusion of this talk, he procured ammunition and a tentmate’s carbine. “After some thought” he placed the “muzzle of the carbine against . . . [his] heart and pulled the trigger with . . . [his] right thumb.” The suicide attempt, however, miscarried; Starr apparently succeeded only in shooting himself in the arm. But his action unquestionably shows a “consciousness of guilt” which gives specificity of meaning to his pretrial statement. As far as Starr is concerned, therefore, the evidence did not require instructions on lesser included offenses to those charged.
I would, therefore, set aside the findings of guilty and the sentence as to Kachougian and affirm the decision of the board of review as to Starr.
A number of courts have excluded evidence of a “consciousness of innocence.” The principle of exclusion has been severely criticized, and it has been soundly argued that such evidence is admissible as a corollary to the rule which admits evidence of a “consciousness of guilt.” Wigmore, Evidence, 3d ed, § 293.
The Manual for Courts-Martial does not discuss the subject specifically, and we are free to adopt the rule of evidence which we think most accords with good sense and sound trial practice. Cf. United States v Villasenor, 6 USCMA 3, 19 CMR 129. We need not, however, make a deliberate choice at this time. Suffice it to say that Kachougian’s report of the shooting is admissible, and can be considered on the question of his intention. Herman v United States, 48 F2d 479 (CA5th Cir) (1931). See also: United States v Peterson, 1 USCMA 317, 3 CMR 51, on the effect of surrender in a desertion case.