(concurring in the result) :
I concur in the result.
I am becoming convinced that Moris-sette v United States, 842 US 246, 72 S Ct 240, 96 L ed 288, is a legal phenomenon in military law, for it is being cited in support of so many legal principles that it must blanket the entire criminal field. I just fail to see its applicability to the issues of this case, for the issue there involved a charge of larceny and a defense of mistake of fact. The Supreme Court held that the trial judge in his instructions could not take away from the jury its duty to find on the elements of a larcenous intent. No such problem presents itself in the. ease at bar as this court-martial was not directed to make any finding. But more to the point, if that case holds that intent cannot be inferred from one established fact then I respectfully disagree.
Aside from the foregoing comment, the principal difficulty I find in this decision is that it strikes down absolutely and without necessity or justification a rule which is founded on good *162sense and logic and has long enjoyed approval in military forums. I refer to the principle set forth in paragraph 164, Manual for Courts-Martial, United States, 1951, page 313, that:
“If the condition of absence without proper authority is much prolonged and there is no satisfactory explanation of it, the court will be justified in inferring from that alone an intent to remain absent permanently.”
If the principle quoted above announces an erroneous principle of law, then this Court has upon many previous occasions subscribed to a faulty rule. In United States v McCrary, 1 USCMA 1, 13, 1 CMR 1, the Chief Judge, in his dissenting opinion agreed that:
“. . . It has been the longstanding rule of all the services that a much prolonged unauthorized absence alone will, without satisfactory explanation, justify a trial court in drawing the inference of intent to remain away permanently.”
Likewise, Judge Brosman, in writing for a unanimous Court in United States v Cirelli, 1 USCMA 568, 571, 4 CMR 160, said:
“. . . It is also too well settled to require citation of authority that if the period of unauthorized absence is much prolonged and there is no satisfactory explanation of it, then the court-martial may be justified in inferring from that alone an intention to remain away permanently.”
Indeed, even appellate defense counsel acknowledge in their brief that this Court has placed its stamp of approval on this rule and there is no mysticism connected with its application. As I understand an inference it is a process of reasoning by which one fact sought to be established — in this instance, intent to remain away permanently — may be deduced as a logical consequence of another fact — here an unexplained prolonged absence. I believe it fair to say that that inference is neither illogical nor without substantial support in prolonged absence cases, for, unlike my associates, I am sure that when a member of the armed forces leaves without authority and remains away without explanation for an extended period — such as 17 months or 17 years, as suggested by my associates in their opinion — most well-thinking persons would deduce reasonably that the status had become permanent and that the absentee would not return until compelled to do so. I, therefore, cannot join with my colleagues in their sweeping condemnation of this long-recognized principle.
Perhaps without unduly lengthening this opinion, a short explanation of my position may be stated. I call attention to the fact that intent normally can be ascertained only through circumstantial evidence. As we noted in United States v Ferretti, 1 USCMA 323, 3 CMR 57:
“. . . It is a familiar observation that intent, being a state of mind, is rarely the subject of direct proof, but ordinarily must be inferred from circumstances.”
Thus, the Manual does no more than simply announce that a much prolonged absence which is not satisfactorily explained is a circumstance from which the court members may infer justifiably the intent to desert. If that deduction does not follow logically then I misunderstand human behavior. Of course, if there are other facts or circumstances which tend to support or undermine the inference, they, too, should be considered by the members of the court in ascertaining intent. That, however, does not mean that the triers of fact cannot infer an intent to desert from what is, in fact, an unexplained prolonged absence when there are no other circumstances casting light on the accused’s state of mind. Certainly one fact or a set of facts may support an inference of intent and therefore the statement found in the Court’s opinion, to wit: “The court-martial must consider the specific intent of the accused and not some substituted ‘established fact’ of a justifiable inference,” confuses me, but that is of little moment, for I am certain that the court-martial members understood they had to find a criminal intent from the facts admitted or proved.
*163Regardless of my disagreement with some of the principles which are announced, even though they are not necessary to this decision, I agree with my associates in their disposition of this case. Here there was evidence relevant to the intent entertained by the accused in addition to his unauthorized absence of only seventeen days. On the one hand, the instructions given by the law officer are susceptible of the interpretation that the members of the court must consider all the facts and circumstances of the ease in arriving at their conclusion regarding accused’s intent, and with that I am unable to find fault. On the other hand, they are so framed that the court could have construed them to permit conviction of the accused for desertion solely on the theory that his seventeen-day unauthorized absence would support a finding of intent to remain away permanently. Standing alone that is too short a period to logically deduce an intent not to return and therefore the instruction could have been misleading. It has been the law of this Court that we will not speculate as to which of the possible interpretations the court members placed upon mutually inconsistent instructions, and I follow that concept. United States v Noe, 7 USCMA 408, 22 CMR 198; United States v Rowan, 4 USCMA 430, 16 CMR 4. Accordingly, I agree that the conviction of desertion should be reversed, and I join in returning the record to The Judge Advocate General of the Navy for reference to a board of review under the conditions stated.