(dissenting):
I disagree with the holding on the policy argument by trial counsel and with the refusal to remand this case to the board of review on sentence. Also, I have given careful consideration to the authorities cited on the postdated check issue. That holding appears so foreign to well-established principles of law that I must dissent. The issue, as granted by the Court, was phrased as follows:
“Whether evidence that the check in Specification 1 of Charge I was post dated is sufficient to support the finding of guilty.”
This fairly raises the question of sufficiency of the evidence. I interpret the opinion of the majority to mean a postdated check alone may be a false pretense as a matter of law. A search of the record of trial fails to disclose any accompanying promises or declarations. All that is present in the ease is the giving of a postdated check, the receipt of money therefor, a failure to have sufficient funds on deposit on the date the check becomes payable, and whatever inferences may properly be drawn from these facts.1
It seems that the principal opinion confuses the use of a false pretense with the requirement of an intent to defraud. It states:
“. . . it is the intention, not the date on the check, which the court-martial must determine.”
Granted, the court-martial must find an intent to defraud. It may be further conceded the date on the check and surrounding circumstances may bear on that intent. However, intent is only one of the elements of a larceny by false pretenses. The requirement of a false *677pretense is exclusive of the intent. And a false pretense is a misrepresentation of a past or existing fact. See, generally, Clark and Marshall, A Treatise on the Law of Crimes, 5th ed, page 466.
Our inquiry then becomes: what representations are made by the giving of a postdated cheek without more. Most of the cases dealing with postdated .checks arise under “worthless check” statutes and results often depend upon the wording of a particular statute. The view has been expressed, however, that a postdated check carries on its face implied notice that there is no money presently on deposit available to meet it. Commonwealth v Massaro, 97 Pa Super 149 (1929). It is simply evidence of indebtedness. This view is supported by logic. See also cases in Annotation, 29 ALR2d 1181. The only other inference which can be drawn from the issuance and acceptance of a postdated check is an implied promise to deposit funds to cover the check before its due date.
This, then, brings us squarely to the issue where the majority departs from precedent. That is on the question whether an intention to do an act in the future is a representation of “existing fact” for purposes of the crime of false pretenses.
The criminal cases cited by the majority do not support its contention that intention is an existing fact. . The principal opinion properly cites Lesser v People, 73 NY 78, for the proposition that “if the elements of that offense are otherwise established, the fact that the check used in the pretense was postdated is not a ground to set aside the conviction.” In Lesser, however, there was an express representation as to an existing fact, i.e., that the check is now good (but he had dated it the following day because the bank had already closed). That representation was the representation of an existing fact and not any statement as to intention. State v De Nicola, 163 Ohio State 140, 126 NE 2d 62, was not a case of false pretenses but determined simply that a postdated check is a “check” within the meaning of a “bad check” statute. That is not determinative of the issue here, and on that question, too, there is a split of authority. See 29 ALR 2d 1181, supra. People v Ashley, 42 Cal 2d 246, 267 P 2d 271, sets forth the minority view but there, as in Lesser, there were false representations as to existing facts. Justice Schauer, writing the dissent in Ashley, said in part:
“I concur in the judgment solely on the ground that the evidence establishes, with ample corroboration, the making by the defendant of false representations as to existing facts. On that evidence the, convictions should be sustained pursuant to long accepted theories of law.
“It is unnecessary on the record to make of this rather simple case a vehicle for the revolutionary holding, contrary to the weight of authority in this state and elsewhere, that a promise to pay or perform at a future date, if unfulfilled, can become the basis for a criminal prosecution on the theory that it was a promise made without a present intention to perform it and that, therefore, whatever of value was received for the promise was property procured by a false representation. Accordingly, I dissent from all that portion of the opinion which discusses and pronounces upon the theories which in my view are extraneous to the proper disposition of any issue actually before us.” [Emphasis supplied.]
The rule is well established in most jurisdictions that the criminal offense of obtaining money or other valuable thing by false pretense is not predicable upon the present intention of the accused not to comply with his promises or statements as to his future acts.
Thus the United States Court of Appeals for the Ninth Circuit said in a recent per curiam opinion:
“The trial court took the view that the legislative intent in enacting . . . [Alaska’s false pretense statute] was to prohibit the obtaining of property by falsely representing present intentions. This construction . . . is contrary to the weight of authority to the effect that to be *678indictable a false pretense or representation must be an untrue statement of a past or existing fact, not a representation or promise as to future events.” [United States v Bonney, 254 F2d 392 (CA9th Cir) (1958).]
Cases from a majority of states standing for the same proposition are collected in Annotation, 168 ALR 833.
American Jurisprudence phrases it thusly:
"... Disclosure by the drawer of a check that he has insufficient funds to meet the check will, as a general rule, prevent a prosecution [for false pretenses], since the payee cannot be said to have relied on the check. For the same reason a prosecution for giving a postdated check generally will not lie, although, if other representations accompany the giving of the cheek, which would indicate the cheek to be good, then the drawer may be punished.” [22 Am Jur, False Pretenses, § 59; cf. 35 CJS, False Pretenses, § 21.]
Several authorities have held that where the parties agree at the time the check is issued that it should not be presented for payment until a later day, and the fair implication is there are not sufficient funds at the time of presentation, the offense is not committed. People v Kapitofsky, 144 Misc 543, 258 NYS 861; Lloyd v State, 98 Tex Cr 504, 266 SW 785. A number of authorities go even further, and, on the theory that postdating a check implies the present insufficiency of funds, hold that in any such case the offense is not committed (People v Mazeloff, 229 App Div 451, 242 NYS 623) unless such circumstances or additional representations are involved as to negative the implication of insufficiency. State v Barone, 98 NJ Law 9, 118 Atl 779.
In the Mazeloff case, supra, at page 625, the court said :
“Fraud cannot be predicated upon nonperformance of a future promise, and a postdated check is a mere promise to discharge a present obligation at a future date.”
Thus, a majority of the Court adopts a view contrary to the overwhelming weight of authority and presents us with no reasons why military law should depart from the traditional civilian view in this area. Further, the two Federal cases cited by the principal opinion for the proposition that a state of mind may be regarded as an existing fact are both cases dealing with fraud in its civil aspects. Elk Refining Co. v Daniel, 199 F 2d 479 (CA 4th Cir) (1952), was an action to rescind a lease and Blakeslee v Wallace, 45 F 2d 347 (CA 6th Cir) (1930), involved a stockholder’s action for a fraud-induced stock sale. It is fundamental that less strict standards may be applied in civil cases where pecuniary judgments are sought than may apply in criminal cases affecting individual liberty. In a case in point, where an attempt was made to introduce a civil concept of fraud into the criminal law, the United States Court of Appeals for the District of Columbia stated:
“In its brief, the government was most candid on this point, stating that Commonwealth v Althause, 207 Mass 32, 93 NE 202, 31 LRA, NS, 999, from which a quotation of dictum was taken did not represent the weight of authority. The same may be said for the other two cases cited to support the prosecution’s position on tbe point. It appears from a study of these cases that the courts concerned found no difficulty in applying the rule on ‘intention’ which has long been used in actions at law for fraud and deceit. We think it unnecessary to discuss the advisability of transplanting this concept to criminal actions. There is a vast difference between subjecting a defendant to criminal penalties and providing for the redress of wrongs through civil actions.
“A majority of the courts having this problem placed before them have not subscribed to the theory that ‘intention’, as manifest by false and misleading promises, standing alone, is a fact in the sense required for a conviction on the charge of false pretenses.” [Chaplin v United States, 157 F 2d 697 (CA DC Cir) (1946).]
*679In conclusion, the Government, in its brief filed before this Court, stated:
“ It appears from what was said by the Board of Review in . . . [United States v Steinwachs, 2 CMR (AF) 784] that, prior to the present Manual, a false representation of an existing intention would not support the offense of false pretenses. However, the Uniform Code of Military Justice introduced a complete change in this field, in that Congress specifically codified the offense of obtaining property under false pretenses along with the other larceny-like offenses in Article 121. Unfortunately, no clear expression of Congressional intent is to be found as to the scope of this Article as it pertains to the offense of obtaining money or other property under false pretenses.”
And this Court said in United States v Buck, 3 USCMA 341, 12 CMR 97:
"... The consolidation of these crimes, however, did not enlarge the scope of the statutory crime of ‘larceny’ to include more than its components previously encompassed. Since the whole is equal to, not greater than, the sum of all its parts, that which did not constitute common law larceny, embezzlement, or false pretenses, prior to the adoption of Article 121 (a), supra, was not thereafter punishable as a violation thereof.”
The majority also errs, in my opinion, in failing to return the record of trial for reassessment of sentence by a board of review. Congress has specifically decreed that boards of review shall determine appropriateness of sentence. Article 66(c) of the Uniform Code of Military Justice, 10 USC § 866 (c) provides:
“In a case referred to it, the board of review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” [Emphasis supplied.]
That this is the board’s function, and not that of this Court, is clear. In United States v Keith, 1 USCMA 442, 4 CMR 34, the accused was found guilty of desertion and misbehavior before the enemy and the findings were affirmed without opinion by a board of review. This Court reversed the findings as to the offense of misbehavior but affirmed the findings as to the desertion charge. The sentence was within the permissible maximum for the offense of desertion. This Court unanimously held that the rule that if an accused is properly found guilty under any one of several counts, the sentence will not be disturbed on appeal if it is legally justified and appropriate for that count, was not applicable, since no military judicial agency with power to do so had determined that the sentence in the case was appropriate for the offense of desertion alone. The Court, after returning the record of trial to The Judge Advocate General of the Army, for reference to a board of review for the purpose of determining the appropriateness of the sentence said:
“ ... In doing this we are not to be understood as expressing any view concerning the appropriateness to the offense of desertion of the sentence adjudged by the court-martial which tried petitioner. We merely suggest that, in the absence of a sentence exceeding maximum legal limits, we are, by the statutes creating this Court, without authority to determine the question.” [United States v Keith, supra, at page 451; cf. United States v Stene, 7 USCMA 277, 22 CMR 67; and United States v Atkins, 8 USCMA 77, 23 CMR 301. See also Jackson v Taylor, 353 US 569, 77 S Ct 1027, 1 L ed 2d 1045, as to power of boards of review to determine appropriateness of sentence.]
In the instant case no board of review *680has determined that the sentence .is appropriate for the offenses finally approved. When this Court determines that the specifications disapproved are “too slight to justify remand of the case to the board of review” not only is the Court arrogating to itself the power to determine appropriateness of sentence which Congress gave to the boards of review but we are preventing the boards of review from fulfilling their statutory function.
' For the reasons stated, I would reverse also the findings of guilty of specification 1 of Charge I and return the record of trial for reassessment of the sentence by a board of review.
This opinion will later show that an implied promise to deposit funds to cover the check may be drawn from the issuance of a postdated check. The testimony of the prosecution witness, while vague, might indicate an express promise to make such a deposit. This would, however, not change the result in any manner.