(dissenting):
I dissent.
The evidence of this case renders inapplicable the rule of United States v Hayes, 8 USCMA 627, 25 CMR 131. Specifications 2, 3, and 4 alleged larceny by three checks drawn upon the Howard National Bank, Burlington, Vermont. The accused entered into a stipulation introduced at trial which, in part, showed that he maintained a savings account at that bank, and prosecution witnesses testified to the fact that he suggested, a day after the checks were drawn, that he was uncertain as to whether his funds at the Howard Bank were in a savings or checking account. In the light of the testimony and as a consequence of the demands of defense counsel, the law officer instructed upon mistake of fact. If that defense has any validity, then accused at the time he obtained the funds could not have intended to deprive the Noncommissioned Officers’’ Mess of its property, either permanently or temporarily. But more important to my view of the controversy is the fact that there is no evidence in the record which even suggests that at the time of the making of the checks the accused intended to return any funds, whether similar or identical, to the payee. That situation must have been realized by trial defense counsel, for his requested instruction significantly does not require a finding of intent at the time of the taking. All that is shown by the testimony in the record is that there was a restitution subsequent to the commission of the crime. As Justice Holmes said in his work, The Common Law, at page 72:
“. . . Theft may be called an attempt to permanently deprive a man of his property, which is punished with the same severity whether successful or not. If theft can rightly be considered in this way, intent must play the same part as in other attempts. An act which does not fully accomplish the prohibited result may be made wrongful by evidence that but for some interference it would have been followed by other acts coordinated with it to produce that result. This can only be shown by showing intent. In theft the intent to deprive the owner of his property establishes that the thief would have retained, or would not have taken steps to restore, the stolen goods. Nor would it matter that the thief afterwards changed his mind and returned the goods. From the point of view of attempt, the crime was already complete when the property was carried off.”
*289Consequently, I find that the requested instruction upon which the principal opinion turns was erroneous and not required by the evidence, so perhaps I should answer the philosophical criticism of our views in United States v Krawczyk, 4 USCMA 255, 15 CMR 255, by replying in the words of Sir Winston Churchill, who said:
“I do not resent criticism, even when, for the sake of emphasis, it parts for the time with reality.” [Speech, House of Commons, January 22, 1941.]
I would affirm the decision of the board of review.