(concurring in part and dissenting in part) :
I concur with my associates in that part of the opinion which disposes of the motion for a new trial. As to the second issue discussed, I must dissent. Without getting into a legalistic debate over the difference between a “presumption” and a “common-sense inference,” I hope to demonstrate that the board of review was quoting certain provisions from the Manual for Courts-Martial, United States, 1951, and using the term as it is defined therein. It is to be remembered that a board of review is an appellate body manned by lawyers, and I believe it fair to assumé that they are acquainted with military law and give unto words and phrases the meaning generally accepted by the system in which they toil.
In its opinion the board of review writes:
“The prosecution at the trial level, and Government Appellate Counsel here rely upon the well known presumption :
** * * may be presumed that one who had assumed the custody of the property of another has stolen such property if he does not or cannot account for or deliver it at the time an accounting or delivery is required * * *’ (Paragraph 138a, Manual for Courts-Martial, 1951).”
Perhaps one unacquainted with military law might immediately have some reservations as to the meaning of the word “presumption” as used by the board. However', he has only to note that the board in the quoted part of its opinion referred to paragraph 138a of the Manual, and a reference to that section will remove all doubt. There it is stated:
“Presumptions. — With certain exceptions, the word ‘presumptions’ as used in this manual means no more than ‘justifiable inference’ and the word ‘presume’ means no more than ‘justifiably infer.’ ”
Certainly, by citing this section of the Manual, I am convinced that the board, when speaking of presumptions, was using the term in its military sense, viz., inference. But this does not exhaust support for my contention as the board then goes on to cite United States v Biesak, 3 USCMA 714, 722, 14 CMR 132. In that case, Judge Brosman, speaking for a unanimous court, said:
“. . . However, as a ‘general proposition’ — and unlike the customary civilian usage, which deems the term, ‘presumption,’ to signify solely a conditionally compulsory inference— military law uses the word as subsuming ‘merely justifiable inferences,’ in weighing which members ‘must apply their common sense and their general knowledge of human nature and the ordinary affairs of life.’ Manual, idem. Cf. Manual for Courts-Martial, U. S. Army, 1949, paragraph 125a.; Manual for Courts-Martial, U. S. Army, 1928, paragraph 112a. Thus, rightly or wrongly, a ‘presumption’ in military law is normally to be construed as no more than a principle of circumstantial evidence. Reference to a permissive, rather than a mandatory, inference was, we think, intended by the law officer who furnished the instruction attacked in the instant case; and this meaning the members of the court-martial would, we believe, have attributed to the instruction on considering it as a whole.”
Finally, the board relies on United States v Mullaly, 9 CMR 150, 154, in which another board of review was confronted with the same “presumption.” That case states:
“, . . This evidentiary conflict presented a clear cut issue of fact to be determined by the court, i. e., was the accused’s explanation sufficiently reasonable of belief as to overcome the justifiable inference of the accused’s intent to appropriate. Obviously, the court resolved this issue against the accused.”
*441The board of review cites these cases with approval, and I assume the individual members were informed of the principles they propound. Therefore, I am convinced we do not have to speculate that they erred for the opinion itself ought to satisfy any reader that they were not using the term “presumption” in any sense other than “justifiable inference.”
In view of the fact that this justifiable inference will support a finding of guilty, United States v Valencia, 1 US CMA 415, 4 CMR 7, I see nothing erroneous in the statement of the board that it “imposes a heavy burden upon the accused.”
I would aifirm the decision of the board of review.