(dissenting) :
I dissent.
Chief Judge Quinn’s opinion first asserts that the instructions given by the law officer were deficient in that they failed to require the court-martial to find that the crime committed by the accused was a disorder, a neglect to the prejudice of good order and discipline of the Naval Service, or conduct of a nature to bring discredit upon the armed forces.
In order to understand that facet of this controversy, I consider it advisable to set out the particular letter which is the basis of the charge of libel. My quotation is complete except for the name of the officer involved. For obvious reasons, his identity is not disclosed. Here is the offensive epistle:
“My buddie and I in the Air Force were at YMCA Oakland on Sat. March 19 at midnite when we met a pervert from Tresure Island.
“We checked his name at the desk and it was . . . , BOQ, Tresure Island.
“He was running around naked in the halls and knocke on our doors, and acted queer and talked filthy.
“Please get rid of this man— because he is dangerous to all servicemen.
“We checked his room number at the YMCA at it was no. 723.
“what we cant understand about this pervert is why he lives at Tresur Island and has to spend the nights at YMCA, only 5 miles away.”
I see little utility in advancing the proposition that every violation of a state law is not a violation of the Uniform Code of Military Justice and arguing that a prosecution cannot be predicated merely upon the basis of the commission of an act prohibited by a state statute, for the Code does not so provide and the Government does not make that contention. All that is necessary to be decided in this instance is whether the alleged libel has a prejudicial impact on good order in the military service or has a tendency to bring disrepute upon that service. If it has either effect, the violation of the state enactment is only incidental to the prosecution, for the military formulae must furnish the predicate for the prosecution. The manner in which a state statute may be used for the purposes of supporting a charge in the military was well stated by Mr. Larkin when he was analyzing the proposed provisions of the Uniform Code before Subcommittee No. 1, Committee on Armed Services, House of Representatives. On page 1239 of the Hearings by that Committee on H.R. 2498, Uniform Code of Military Justice, 81st Congress, 1st Session, I find the following statement, which was made by him:
“The construction as to State laws should be clarified to this extent: I believe a violation of a State law would be punishable under the code to the extent it is construed as conduct to the prej'udice of good order and discipline but not to the extent of the specific State law itself. We purposely want to avoid trying personnel who happen to commit an offense under State law, by virtue of the tremendous variations between State laws and by virtue of the necessity that would fall upon the court of trying them according to the procedural practices and perhaps even the substantive provisions of one State as against another. But, if the act is to the prej'udice of good order and discipline, the fact that it also incidentally is a State law violation as well would bring it under this jurisdiction but not triable as the State would try it.”
That quotation merely restates the rule long established in military law to the effect that the proper yardstick to be used to determine the criminality of an act made punishable by a state statute is its impact on good government in the military community. The purpose of Article 134 of the Code, 10 USC § 934, is to prescribe that measuring rod and, while the state statute may for state purposes, define the crime, before it becomes a military offense the prohibited conduct must, as the Article provides, have a direct and proximate *573impact on good order, discipline, or credit of the service. With that rule in mind, I pass on to consider the crucial question of whether the law officer erred to the prejudice of the accused when he failed to require the court-martial to consider specifically the effect of accused’s conduct on the Naval Service.
I have no doubt that in cases such as United States v Fox, 6 CMR 533, which involved loaning money at high rates of interest — relied on by the accused and perhaps by my associates to support their views — it can be argued that such a method of conducting an enterprise is neither prejudicial to good order or discipline nor conduct discreditable to the services. In that field of activity, evidence that accused charged a rate of interest higher than that permitted by state law might not be proof of an offense which is violative of military law. State statutes are not uniform as to the amount that may be assessed before the transaction becomes usurious, and reasonable minds may differ as to the rate that could be charged before good order in the military community would be affected. There is, however, a wide range of offenses which may be prosecuted under the general Article, and when we reach the more serious ones, they, by their very nature, affect adversely the tranquility, security, discipline, and good government of the military service. In the event a serviceman takes indecent liberties with a child of tender years, no reasonable person need be told that that offense has an adverse impact on the military service. Every right-thinking person would concede that crimes such as those bring the service into disrepute. However, as we leave that area and proceed down the scale of seriousness, we approach offenses which are more nearly akin to petty crimes. On the lower end of the measuring rod, we find some transgressions which, as a matter of law, do not constitute military offenses. Between the two limits are certain delicts which are in an area of doubt such that reasonable men would not be compelled to reach unanimity on their detrimental impact on military discipline or good order. In those instances, a factual issue arises and it is necessary that the court-martial members determine whether the commission of the crime has that effect. However, in the ease at bar, the publication of the libelous charge contained in the letter is an act which would fall in the first category, for I believe every reasonable person would find it to be discreditable and to have a direct impact on morale and discipline. Certainly, when members of the military services maliciously and untruthfully broadcast information that their senior officers are sex perverts who should be discharged from the service because they are dangerous to the men under their command, the confidence and respect of the civilian population is shaken and the faith and leadership necessary to a successful military organization is impaired.
A reference to that part of the Manual for Courts-Martial, United States, 1951, dealing with punitive articles seems to bear out my contention. I note that the independent paragraphs on proofs set out for those offenses discussed under Article 134, pages 381 to 387, do not require a finding on the effect of the crimes defined. The reason should be apparent to all, for the offenses include such atrocious crimes as assault with intent to murder, rape, commit sodomy, and commit indecent acts with children under sixteen years. In connection with the enumerated offenses, it would be an act of sheer futility to require a court-martial to find what is obvious to everyone, namely, that the commission of such offenses has an adverse impact on the military service. The same consideration applies to this offense. I would, therefore, say that the law officer was not compelled to submit to the court-martial members the question of whether the false and malicious libel brought discredit on the Naval Service or impaired good government within it. No doubt he could have done so, but the omission was not prejudicial.
My second ground for dissenting is founded on my belief that the instructions are not confusing and that — if they are not technically correct — any inaccuracy is immaterial. They are rather lengthy and, to conserve space, *574I have not set them out in haec verba, but when they are considered and interpreted as a whole, they meet minimal standards as guideposts and state good principles with sufficient clarity to be upheld.
At least Judge Quinn finds a substantial issue in the instruction dealing with truth. As I under- stand his, and perhaps their, view, it is to the effect that when the defense is relying on a qualified privilege, the truth of the alleged libel is not material as an issue. I do not accept that doctrine and neither does the accused, for he affirmatively raised the defense and he believed it to be beneficial to his cause. It is to be remembered that under common law, truth was not a defense to a prosecution for criminal libel. In an apparent effort to modify the rigors of that rule, California and other State jurisdictions by statute changed that principle and provided that proof of the truth of the uttered words and good faith in their publication would constitute a complete defense. In this instance, that gave the accused a second line of defense for he could claim his report was true in addition to his assertion of privilege. It is indeed a strange rule which founds error on an instruction setting out a theory contended for by the accused and beneficial to his cause. Certainly I know of no reason to hold that one charged with criminal libel is not entitled to interject the issue of truthfulness as a defense to a charge of libel even though he principally relies upon a qualified privilege to escape criminal responsibility.
In connection with the main ground for reversal, Judge Quinn seizes upon two statements found in the instructions, isolates them from their surrounding concepts, and then reaches the conclusion that they were confusing to the court-martial. Of course, phrases can be torn from context and thus made to appear to be inconsistent, but judicial interpretation does not countenance that form of construction. In order to ascertain inconsistency, if any, the complete charge given to the court-martial must be considered and interpreted, and when that is done in this instance, confusion is not present. But even if I were to assume to the contrary, the accused cannot complain if the inconsistency arises at his request because he relies on inconsistent defenses.
As I read the record, the accused defended on two theories, both of which are expressed in the instructions. The first was one of absolute privilege and the second was that the statements were true. The law officer rightly concluded that privilege was raised as an issue but that it was qualified and not absolute. In covering those two theories, the law officer, apparently with the consent of defense counsel, quoted the California law on malice and truthfulness, and, at defense’s specific request, quoted the statute covering privilege. The statute first mentioned provided that, “An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” The last mentioned section — which was quoted at accused’s request — provided:
“A communication made to a person interested in the communication, by one who was also interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent is not presumed to be malicious, and is a privileged communication.”
I interpret those two sections to mean that a libelous statement is presumed malicious unless there is a justifiable motive for making it, but when a qualified privilege exists, a good motive is present and malice is not presumed. The general rule seems to be that if the publication is defamatory, the burden of going forward with the defense of privilege falls on the accused. He can raise that issue by showing the occasion and his good faith in publishing the defamatory statement.
That is in substance what the law officer said, for he stated:
“When under such occasions, qualified occasions, communications, usually called ‘privileged communications’, are made in good faith, and with a sincere belief in their truth, then, although they are defamatory, and, may even be untrue, yet the occasion and *575the good faith of the person making the communication rebut the presumption of malice, and, therefore, no prosecution for libel can be maintained.”
I find nothing incorrect or misleading about that concept when it is applied to the facts and other instructions in this case, for, contrary to Judge Quinn’s opinion, the law officer did not require the accused to prove his good faith. The published letter was libelous on its face and under the law, malice was pre-' sumed. However, the accused raised the issue of qualified privilege by showing that the communication was forwarded to the Federal Bureau of Investigation. That left the good faith of the accused in issue before the question of privilege could be determined. That issue was left to the court-martial members under proper directions. Certainly if the accused reported the incident in good faith, he was not actuated by malice. Conversely, if ill will prompted him to make the report, he did not act with candor. The law officer appreciated that a factual determination on that subject was necessary, for on two occasions he informed the court-martial members that malice was an element of the offense and that the burden was upon the Government to establish that ingredient of the crime. If they found malice, they could not find good faith and there would be no qualified privilege. Accordingly, I do not believe that the law officer placed a burden upon the accused to establish any element of the offense. On the contrary, I think it clear and positive that he understood and properly advised the court which of the parties had the duty of going forward and that the burden of proof on the issues framed by the evidence was on the Government.
For the foregoing reasons, I would affirm the findings and sentence.