(dissenting):
I dissent.
In this instance I will limit my comments to that portion of the opinion which deals with multiplicity. The problem brought into issue is whether a conviction for larceny of money extracted from letters contrary to Article 121 of the Uniform Code and a finding of guilt for violating Article 134 by taking and destroying the letters in violation of a Federal statute, and the sentence imposed.pursuant thereto, are multiplicious. First, it appears from Specifications 151 and 152, Appendix 6c, Manual for Courts-Martial, United States, 1951, and the Table of Maximum Punishments that the violation of Article 134 herein pleaded and proved consists of taking, opening, and interfering with mail matter in custody of the Government. The larceny of the money is defined, proscribed, and punished under a separate and distinct Article.
I thought we had laid the foundation for the disposition of this issue in United States v Lorenzen, 6 USCMA 512, 20 CMR 228, but in this instance the Court pays little heed to what we there said. I quote from page 514:
“. . . This language is plain and unequivocal and, when considered together with provisions of similar tenor found in the 1949 Manual for Courts-Martial, is persuasive evidence that military authorities have, at least since then, regarded interference with the mail to be the very essence of the offense sought to be charged in this case. The Staff Judge Advocate seemed to recognize this, for in his review he said: ‘The gravamen of the offense charged in the instant case is tampering with mail matter.’
“When we turn to relevant military ease holdings, we find that our views are not without precedent. In United States v Smith, 10 CMR 262, reversed on other grounds, 4 USCMA 369, 15 CMR 369, the accused was charged with stealing a package, addressed to another, before the package was delivered. Admittedly, the specification was sufficient to allege a larceny, but as to the precise offense involved here, it was held by the board of review: ‘But there is an additional element in the crime of larceny of mail mat-' ter; that is that the thing stolen is mail matter. . . .’ ”
It would appear from the statements quoted that we considered that the Article 134 offense had to involve mail matter, and in United States v Peoples, 7 USCMA 534, 22 CMR 324, we seem to have followed that rule. There we were confronted with a factual situation similar to the present one before us. In that instance, the accused raised the issue of multiplicity both at trial, before the board of review, and in a petition before this Court. The board of review discussed and decided that there was no multiplicity involved. We, however, refused to consider the alleged error of sufficient importance to include it within our grant of review. .
I do not propose to question the rationale of the decisions cited by the Court in support of its holding, for they are not in point. It is true that the general civilian rule states that when several articles belonging to different persons are stolen at the same time and. place, there is but one larceny. Just how that can be used as authority to support a holding that interference with the mail is the same offense as larceny is indeed a mystery to me. Also, I find, some difficulty in construing the rule set forth in People v Quiel, 68 Cal App 2d 674, 157 P2d 446, to be contrary to my position. Certainly if one steals a purse containing cash, each individual coin does not form the base for a separate offense. In that case, a single taking does not offend against two separate norms of society, there are not two different punitive Articles which' are violated, and the elements of the two asserted offenses are not different. j
Goode v United States, 159 US 663, 16 S Ct 136, 40 L ed 297, is hardly worth analyzing, as the special statute in that' case specifically requires the taking of something of value from the letter. Furthermore, it is cited for the propo*363sition that possession of property enclosed in a letter to a third party is almost conclusive evidence of the theft of the letter. That holding merely touches on the principle of possession of recently stolen property which has to do with the sufficiency of the evidence. Nowhere do I find any mention made of multiplicity although the defendant was found guilty on three counts of embezzlement and four counts of theft of mail and only one transaction is discussed.
For cases more closely in point, I cite Kinsella v Looney, 217 F2d 445 (CA10th Cir) (1954) which holds that counts of an indictment charging theft of a letter from a house letter box and unlawful removal of the contents from such letter are separate and distinct offenses. Analogously it has been held that larceny of Government property belonging to the Post Office Department and larceny of mail matter following a burglarious entry are distinct offenses even though both offenses form part of one transaction. In re Snow, 147 F2d 1006 (CA9th Cir) (1945). Finally, it was held in Adams v White, 31 F2d 982 (CA8th Cir) (1929), that burglary and stealing postal funds are separate offenses. In the three cases cited immediately above the penalties imposed for both offenses were affirmed on appeal.
It should be obvious to even a casual reader that each offense which presently concerns us, namely, larceny from the mail and larceny from an individual addressee, requires proof of an element not necessary to prove the other. The violation of Article 134 requires proof of some act which offends against the sanctity of the mails; see Bowers v United States, 148 Fed 379 (CA8th Cir) (1906); United States v Falkenhainer, 21 Fed 624 (ED Mo) (1884) ; and the theft of a letter in transit will suffice for that purpose. Larceny in violation of Article 121 is an offense against the personal property of a third party and an essential element thereof is the taking of something of value with intent to deprive the true owner permanently of its possession. The first mentioned offense does not require proof of either value or intent to deprive and the last enumerated crime has nothing to do with interfering with communications placed in mail channels.
Pursuant to the rule recognized by most civilian courts, I find the offenses separate and on that basis I would affirm the board of review.