(dissenting):
I dissent.
The author of the original opinion misses the crime of larceny because he is so intent upon assailing the vices of gambling. Of . course, I join him in his condemnation of that crime but not to the point where I am willing to legalize thievery. The Chief Judge takes a somewhat different approach for reversal in that while he joins partially with Judge Ferguson, he finds the victims gambled on the check being worthless, a mental condition disputed by the record and the pattern of human behavior. I, for reasons hereinafter set forth, part with both my associates and seek to solve this issue on basic legal concepts rather than moral principles.
Because the Services are departments of the Federal Government, they have a direct interest in law observance, order, and good government, and they become a necessary party to a criminal prosecution. Therefore, that part of the civilian law of contracts laying down principles governing gambling transactions has no place in a system which has for its underlying purpose the punishing of offenders against the penal statutes of the sovereignty. The doctrine that the contributing guilt of one party can be pleaded as a bar to a prosecution by the Government in this type of offense is without the slightest foundation or justification in sound logic or reasoning. For that reason, in order to decide this case, I do not hesitate to apply the ordinary principles of criminal law.
To better consider these principles, it should first be understood that this prosecution is founded upon checks for which a valuable consideration, namely money, was given and paid at the time the check was delivered. It should further be understood that the checks were given to the persons who advanced the money and who relied on the representation that they would be paid upon presentment. With those comments for my background, I look to the definition of larceny so that the facts of this case can be measured to ascertain if they established beyond a reasonable doubt each and every element of that offense. If they do, then the findings and sentence should be affirmed, regardless of *56the moral sanctions I might apply against games of chance.
In the cases of United States v Aldridge, 2 USCMA 330, 8 CMR 130, and United States v Buck, 3 USCMA 341, 12 CMR 97, we advanced the thought that Article 121 of the Code, which defines larceny, combined three prior offenses. The one of particular moment in the ease at bar is obtaining money by false pretenses, and the present law makes that form of acquisition unlawful if there is a concurrent intent to deprive the owner permanently of his property. The essential elements of that species of the crime are these: (1) That the accused wrongfully obtained the property of another; (2) that the property belonged to a certain person named or described; (3) that the property was of the value alleged or some value; and (4) that the obtaining was with intent permanently to deprive the owner of its use and benefit. To show they have been proven, I will discuss them seriatim. In this instance, the accused acquired possession of cash, or its equivalent, by a false representation. The Manual for Courts-Martial states that a person makes a false pretense by uttering a check made by him if at the time of the uttering he did not honestly intend to have sufficient funds in the bank available to meet payment of the check upon its presentment for payment in due course. As to the second and third elements, there can be no question about the sufficiency of the allegation and proof to show the property belonged to a third person and its value was not in dispute for it was in the form of money. With regard to the fourth ingredient, the facts and circumstances shown by the testimony clearly support the court-martial’s finding that the requisite criminal intent was present. If, therefore, as I point out, the crime is proven by the quantity and quality of evidence required by the Code, I ask, then, what is left for us to decide?
We are an appellate court created to decide cases by the law and if we only apply long-recognized legal maxims, a fair and just result usually follows. Defense counsel concede that over the years, military law has consistently held that the issuance of worthless checks under similar circumstances is a military offense, and they cite sixteen cases to support that theory. That well-developed body of military law is overruled without being mentioned, apparently because it is believed moral requirements compel us to discourage gambling in the Service. Without debating what the effect of this case will be, I merely go on to say that we make unique law when we say' we will not countenance the conviction of a thief because he stole' from a gambler. As a caveat to those in the Service who play penny ante, I can only say, do not cash a check for your most trusted friend if he happens to be in the game.
In answer to the remaining contention of the Chief Judge, I merely call attention to the fact that he emphasizes the general rule that “a taking . . . of property from the possession of another is wrongful if done without the consent of the other.” That, of course, is correct but larceny in the military can be committed if possession is obtained with consent. Whenever an accused obtains money by trick or false pretenses, possession is obtained with consent of the owner but if it is done with intent to deprive him permanently of his property, it is larceny. Furthermore, the court-martial found that the accused defrauded the victims of their property. There is evidence to support that conclusion and they could not have been defrauded had they given their consent.
I would therefore affirm the board of review. .