(dissenting):
I dissent.
As the first order of business, I call attention to the fact that the author Judge challenges the hold ffig in United States v Buzbee, 3 CMR(AF) 457. To support his position he assumes that the day of trial is the day of return and then argues that if such is the case, many rights guaranteed to an accused by the Uniform Code of Military Justice have been impaired. That part of the opinion falls on its own weight as the assumption is but a broken reed in the light of military records on appeal. Surely there is no reason to assume that charges were served on this accused on the same day as he was tried. Just a hurried peek in the record explodes that premise, for it shows charges were served on accused on the 6th day of January 1956, and the trial was not held until some thirty days thereafter. That was not the earliest date upon which the accused was present, for the record affirmatively shows that the pretrial hearing was held on January 5, *4501956, and the accused must have been in the hands of the military at that time, because he gave the investigating officer a fairly lengthy exculpatory statement. Lastly, all of the other assumptions mentioned by my associates are disproven by the evidence found within the confines of the record, and, for the information of those who might be interested in knowing what the evidence is and not what it must be assumed to be to prove a point, I relate chronologically the dates which are fixed by the record. Charges were preferred against the accused on the 3d day of January 1956, and he was notified of the charges on the same date. The pretrial investigation was held on January 5, 1956, the advice of the staff judge advocate to the convening authority bears the same date mark, and the accused was served with a written copy of the charge sheet on the 6th day of January 1956. On the 11th day of January 1956, the accused requested a continuance of his trial until February 6, 1956, and apparently the request was granted, for the case was not referred to a general court-martial for trial until February 1. The trial was held on the date selected by the accused.
In the light of that positive evidence, which we are duty bound to consider, I wonder why it was necessary for the Court to propose suppositions contrary to the recorded facts. My answer would have to be that my associates have missed entirely the legal principles announced in Buzbee and allied cases, and, in their endeavor to interpret the wording of the Manual in a light favorable to an accused, have made the mistake of devising an unwarranted hypothetical which is meritorious only in the sense that it supports their views.
In cases involving absence from duty, Congress gave to the court-martial the right to impose any punishment it deemed appropriate. At the same time, the law delegated to the President the right to set the maximum limits which could be imposed. In connection with that type of offense, the maximum penalties imposable have been graduated in severity according to the length of absence. The question in this case, then, is simply this: For sentence purposes, is the evidence sufficient to establish that the accused was absent without authority for the period alleged? My answer is in the affirmative, and the rationale by which I reach that.conclusion will be developed in the following discussion.
Paragraph 138a of the Manual for Courts-Martial, United States, 1951, provides that a condition shown to have existed at one time may be presumed to have continued. Certain illustrations of the presumption, more properly labeled a justifiable inference, are enumerated, and then later in paragraph 164a, the Manual goes on to deal with the offense of absence without leave. There it spells out specifically how the presumption may be used once a status is shown to exist. The provision is as follows:
“. . . Having once been shown to exist, the condition of absence without proper authority with respect to an enlistment or appointment may be presumed to have continued, in the absence of proof to the contrary, until the return of the accused to military control under that enlistment or appointment.”
I believe that the above-stated presumption is rooted in the commonly accepted experiences of mankind and that the President was well within his authority when he permitted its use in military courts. I, therefore, propose to apply it according to its terms for, if I do less, I would necessarily deny its existence.
The morning report shows the absence without authority began on October 28, 1955. That status could be presumed • to have continued until the return of the accused to military control. In other words, the court-martial members could have found as a fact that accused went absent without leave on the first mentioned date and remained in absentia until he was returned to military control. While this finding would fix the beginning of the absence with certainty and continue it for some indefinite time, there yet remains the necessity of fixing a terminal date. For that purpose, the day of trial would be the outside limit, for the ae-*451cused was present in court. However, the condition of absence could have been terminated at an earlier date, and all that is needed to show a change in status is some evidence of an earlier return. Proof of that matter may be furnished by the Government, by the accused, or by both. In this record I find several bits of evidence which unquestionably show the status of unauthorized absence to have changed prior to trial. One could not seriously contend that the accused was absent without authority when he participated in his pretrial hearing. Neither could anyone reasonably conceive of him not being within military control when he was served with the charges or when he requested a continuance. Those incidents give clear and positive assurance that the accused had been returned to a military organization prior to his trial and would be evidence which would rebut the presumption that he was absent until the day he was tried.
One other factor which influences the period of absence must be mentioned. Pretermitting motions to amend, the Government is bound by its pleadings, and if in the specification the terminal date is fixed with certainty, that is the last date upon which it may rely for termination of the absence without leave status. In this instance, the alleged date is December 20, 1955, and that is prior to any proven date of return to be found in the record. Accordingly, I would say the presumption of continued unauthorized absence would run from the day of departure until the terminal date alleged in the pleadings.
I am aware of the argument that a statutory presumption such as this compels an accused to prove the Government’s case. I am certain that I have never subscribed to any theory that the accused must join with the Government in sealing his doom, but I have on a number of occasions contended that if he wants to avoid the possibility of the court-martial members drawing justifiable inferences in favor of the Government, he must produce evidence which in some way undercuts the factual base supporting the inferences. Furthermore, if a presumption naturally arises from a fact or set of facts, the accused must run the risk of having the court draw the inference, or he must come forward with some evidence pointing to another direction. That is a well-established rule which is easily documented.
In Yee Hem v United States, 268 US 178, 45 S Ct 470, 69 L ed 904 (1925), the Supreme Court had under consideration a statute which provided that opium found within the United States was presumed to have been imported after a given date, and that the defendant was to bear the burden of proof to rebut the presumption. The court disposed of the appellant’s argument attacking the statute by stating:
“The point that the practical effect of the statute creating the presumption is to compel the accused person to be a witness against himself may be put aside with slight discussion. The statute compels nothing. It does no more than to make possession of the prohibited article prima facie evidence of guilt. It leaves the accused entirely free to testify or not, as he chooses. If the accused happens to be the only repository of the facts necessary to negative the presumption arising from his possession, that is a misfortune which the statute under review does not create but which is inherent in the case. The same situation might present itself if there were no statutory presumption, and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances, and not from any form of compulsion forbidden by the Constitution.”
We have applied the very same rule in appropriate situations; for example, in United States v Gohagen, 2 USCMA 175, 7 CMR 51, Judge Brosman, while speaking for a unanimous Court, said:
“The remaining question has to do with whether it was incumbent on the *452prosecution to establish by proof that accused was not to be found within the exceptions stated in the circular. Again we are compelled to respond in the negative. The following language of Mr. Justice Cardozo in Morrison v. California, 291 US 82, 88-91, 78 L ed 664, 669-670, 54 S Ct 281, is particularly appropriate:
*. . . The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. . . ”
When the teaching of these decisions is applied here, it follows that once the Government proves the in ception of the unauthorized absence, a base has been furnished to permit the court-martial members to find that that condition continued until such time as evidence is produced to undermine it. Some evidence to interrupt the absence will always be in the record as accused’s presence at trial proves conclusively he is not then absent. However, a return' earlier than the date of trial will undoubtedly be established by official records or by testimony. But if the accused desires to persuade the court not to infer that he was in an absence status until the military service has dealt with him in some manner which is reflected in the record, he must come forth with some evidence tending to show an earlier return.
I would affirm the decision of the board of review.