(dissenting):
I dissent.
The heart of the Court’s opinion is found in two statements: “We are’ persuaded then that when a single act violates both Articles, it was not intended that the offender be subjected to two punishments,” and “The difference between the sale or other unauthorized disposition provision of Article 108 and the general provisions of Article 121, when only one act is committed is a difference more of form than of substance.” Of course, Congress decided to the contrary, for it made disposition of military property an offense under Article 108 of the Code with an appropriate sentence, and it made larceny and wrongful appropriation different offenses under Article 121 with some variation in maximum sentences. In addition, these Articles rather pointedly suggest a departure from the view that is expressed by my associates that we are merely dealing with a matter of form.
In the majority opinion, I do not find one case cited which supports the conclusion reached. Moreover, it is interesting to consider the rationale of Gavieres v United States, 220 US 888, 55 L ed 489, 31 S Ct 421, and Normandale v United States, 201 F 2d 463 (CA 5th Cir) (1953), cited by the Court, for if these cases support the views expressed by my associates, then I misread their language. In the former, I find these statements in summation of the holding: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” And in the same case: “While it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other.” In the latter, this quotation is illuminating: “The same course of conduct upon the same occasion may result in separate offenses and be separately punished.”
Bell v United States, 349 US 81, 99 L ed 905, 75 S Ct 620 (1955), the last case cited by the majority, involved the single issue of whether transporting two women for immoral purposes on a single trip permitted punishment for two offenses. The prosecution alleged and relied on the violation of a single statute, and there was no issue involving the offending against separate penal acts. My interpretation of that case leads me to believe that it offers no help in this situation.
As I understand the rule set out in the Manual and affircned by us, it is this:
“The maximum authorized punishment may be imposed for each of two or more separate offenses arising out of the same act or transaction. The test to be applied in determining whether the offenses of which the accused has been convicted are separate is this: The offenses are separate if each offense requires proof of an element not required to prove the other. . . . An accused may not be punished for both a principal offense and for an offense included therein. . . .” [Paragraph 76a (8), page 123.]
That rule finds unanimous support in the Federal courts, and on multiple occasions it has been applied by the United States Supreme Court. In United States v McVey, 4 USCMA 167, 15 CMR 167, a great many cases which lend support to the principle are cited. I prefer to accept that rule, and if it is applied in this instance, it is crystal clear that disposing of military property requires proof of an element not required in larceny, and the latter offense requires proof of an element not required in the former crime. The rule is not rendered inapplicable just because it happens that a single act established both. If it does, then the cases *22cited by the writer in United States v McVey, supra, and those mentioned by my associates in this case were decided incorrectly.