(concurring):
I concur with the Chief Judge.
A man’s life depends upon the concurrence of two members of this Court. For that reason, since I join in affirming the findings and sentence, I prefer to make a few observations.
This was an excellently defended case at the trial level, and appellate defense counsel have done a superior job in presenting to us the strongest possible arguments to support a reversal. However, in reviewing the record, including the petition for new trial, the only question which I believe merits discussion is the sufficiency of the evidence to support the findings. In that connection, it is well to remember that in the field of sufficiency, a circumstantial evidence case may pose to an appellate tribunal the most difficult problem of all. At the trial level, each bit of evidence in the record must be considered with respect to whether it fits in with a hypothesis of innocence or one of guilt, and there the court-martial must find that it excludes all hypotheses of innocence. If at this level we repeat the same process, we step out of character and merely substitute our conclusions for those of the original triers of fact without the benefit of many guides available to those who observed and heard the witnesses. I do not understand that the Chief Judge, in carefully and fully setting out the facts and in advancing possible theories to support the findings, is suggesting a resolution of guilt or innocence by us. I believe he is merely outlining possible theories by which the court-martial could have reconciled such inconsistencies as may exist and properly arrived at its verdict. Of course, it can be argued, as it was by defense counsel, that some facts in this record have a tendency to point the finger of guilt directly away from accused and thus lend support to a hypothesis of innocence. On the other hand, counsel for the Government marshal the facts and contend they point unerringly toward him as the perpetrator of the murder. The arguments are excellent, but they more properly belong in the trial forum or before the board of review. The limited sphere of our consideration of the evidence is to ascertain whether, as a matter of law, it is sufficient to support the findings of the court-martial.
In United States v O’Neal, 1 USCMA 138, 2 CMR 44, I took the view supported by substantial authority that the true test for sufficiency of evidence at this level is: “If there is some substantial evidence in the record which permits the court-martial to conclude the accused is guilty beyond a reasonable doubt then we are not permitted to reverse because we might or can draw a different conclusion.” I use that same measuring rod in this instance and, when I do, I find there is ample evidence in this record to support the findings made by the lower tribunals with fact-finding powers. The Chief Judge’s opinion sets forth the salient facts and many of the inferences which support my conclusion. That he and I find sufficient evidence to support the verdict at this appellate level does not say reasonable men could not differ. It does suggest, however, that the six commissioned officers and the four non-commissioned officers who composed the court-martial, the convening authority, and the two officers of the board of review who joined in the majority opinion were convinced beyond a reasonable doubt that the accused was guilty and that the evidence excluded all reasonable hypotheses of innocence. There is in law a basis to support those beliefs and we can require no more.
I, therefore, join in affirming the decision of the board of review and agree there is no basis for granting a new trial.