Opinion of the Court
Robert E. Quinn, Chief Judge:The accused petitioned this Court to review his conviction for causing the death of Michael Rodrigue and Geraldine Fernandez, in an automobile accident, in violation of Article 119, Uniform Code of Military Justice, 10 USC § 919. He contends the evidence is insufficient to show beyond a reasonable doubt that he was the driver of the vehicle at the time of the accident. See United States v Waluski, 6 USCMA 724, 21 CMR 46.
Shortly after midnight, October 4-5, 1957, several persons in the vicinity of the intersection of Stanley and Wilson Roads, Fort Sam Houston, Texas, heard a loud “screeching of tires.” At that point Stanley Road describes a long curve to the left for vehicles coming down the road from a northerly direction on the right side. A few minutes later they observed an automobile smashed into a lamppost past the intersection, and three bodies on the ground. One was on the grass off the road about twenty feet north of the car. This was the accused. He was alive. Subsequent examination showed he had a fractured shoulder bone and was slightly bruised on the right side of the face and body. The second body was that of a girl, later identified as Geraldine Fernandez, a friend of the accused. Her body was lying in the gutter at the curb just above the intersection, about seventy feet north of the lamppost and sixty feet south of a tree (which we shall designate as Tree No. 2) on the west side of Stanley Road. A piece of automobile glass was found near her body. If Geraldine was not dead when first seen by the nonmedical witnesses, she was dead on arrival at the post hospital a short time afterward. Death was attributed to intracranial hemorrhage resulting from the application of a “great deal of force.” The third body was that of Michael Rodrigue. He was dead. The right side of his head was smashed. An autopsy indicated death was instantaneous. It resulted from severe brain lacerations. Rodrigue’s body was located about twenty feet west of the girl’s on the grass beyond the sidewalk and about fifty feet south of the tree and eighty feet north of the lamppost.
Two witnesses testified they saw the car smash into the light pole, but neither saw any bodies thrown from the vehicle. By circumstantial evidence, the prosecution attempted to establish that the accused was the driver.
It was shown the car belonged to the accused. It was a 1955, two door, hardtop Pontiac, black and red in color. No fingerprint examination was made of the car’s interior, and nothing found therein tended to indicate who had been the driver. An examination of the area showed tire marks on the west curb of Stanley Road, some distance above the tree. A single tire track then appeared on the grass for about forty-five feet to a tree (which we shall designate as Tree No. 1). Bark was torn off Tree No. 1 and there were red paint marks on its trunk. The tire track continued to Tree No. 2, which was also damaged and marked with red paint. The tire track then curved off the grass. No tire tracks or skid or brake marks were found on *21the hard, macadam surface of the road. Scattered about the area were a box of facial tissues, some magazines, and a blanket. Examination of the car disclosed that both right tires were flat; the right door was badly damaged, with the entire window frame ripped out. This door was “sprung” open, but it could open only forty-five degrees or “a little more” from the body. The right rear fender was severely damaged and the right rear bumper was torn loose. The left door, with the window rolled down, was intact and undamaged. The accelerator pedal functioned properly. The right front seat, which was of the movable type, was “folded down,” and the rear seat was “flipped over and leaned against the back of the front seat.” There was no visible damage to the dashboard or the upholstery. Over the top and on the outside of the left door was some moist vomit.
The accused did not testify. However, it appears from the testimony of an Army psychiatrist, which was offered in support of the motion for a continuance, that the accused was suffering from amnesia induced by psychic shock. The doctor expected the accused to recover “partial memory” but he did not believe the accused would “remember much about what happened.”
The theory upon which the prosecution proceeded was that the tire track on the grass unmistakably indicated someone’s “foot was on the automobile accelerator at the point eight feet below” Tree No. 2, and that someone “had to operate the steering mechanism of that vehicle beyond [the point]” where the tire track left the grass and returned to the roadway. From this premise, trial counsel argued that Rodrigue and Fernandez were not then in the car, and hence only “the accused . . . could have been seated behind the wheel and accelerating the motor.”
Apparently, the theory that the motor was accelerated after impact with Tree No. 2 is predicated upon the testimony of Mr. H. R. Jorgenson, an inspector with the Post Safety Office. His testimony, however, is equally consistent with the fact that there was no pressure on the accelerator pedal, either before or after the impact with Tree No. 2.
Mr. Jorgenson testified that the characteristics of the tire track on the grass indicated the “back wheel [was] spinning at a rate of speed greater than the movement of the car to which it . . . [was] attached.” The difference in speed was attained because the construction of the rear axle differential permitted one of the two rear wheels to spin faster than the other when it encountered less friction. From the evidence, it is clear the left wheel was on the road surface. Common experience tells us a grass surface provides less resistance or friction than a dry, hard, macadam roadway. The difference in speed between the right and left wheels is thus accounted for by the physical conditions under which the car was operating, rather than by any inference that the accelerator pedal was depressed during the movement of the car.1 So far as the steering part of the prosecution theory is concerned, the evidence is also consistent with the fact that the car was not under control after striking the trees. The direction of the tire mark in the grass indicates the vehicle was headed in a southeasterly direction when it got back on the roadway. One prosecution witness testified as follows:
. . I saw this car in a swerved position for maybe 40 or 60 feet and I — the way it appeared to me — • it had an accident with another automobile, but there was only one set of headlights and I heard the glass falling when it hit the light post;
The witness’s testimony strongly indicates that the car was not under human control. The only other pros*22ecution witness who saw the accident testified he saw the car well past the middle of Stanley Road, headed toward a barracks on the opposite side, when it pulled sharply to the right or west side of the street. If there was only this conflict in the testimony, the court-martial would have been entirely free to disregard the one and believe the other. But the physical facts, including the impact with Tree No. 2, demonstrate that the latter witness was in error. The credible testimony shows clearly that the car could have been entirely out of control after it hit Tree No. 2 and returned to the roadway. Finally, the position of the bodies is consistent with the conclusion that the accused was not the driver. The prosecution made much of the fact that the accused was intoxicated. If he was in fact drunk, it is not unreasonable to conclude' that Rodrigue and Fernandez placed him on the rear seat. Considering the apparent speed of the vehicle and the nature of the collision, it is also not unreasonable to infer that the occupants of the front seat were thrown out on the initial impact; that as the car “swerved” along for “40 or 60 feet,” the accused fell forward and rested on the back of the depressed right front seat; and that he was himself thrown from the right side of the car through the half opened door when the car jolted over the curb before smashing into the lamppost on the south side of the intersection.
Taking into consideration all the evidence, we cannot say it is sufficient as a matter of law to support the court-martial’s finding that the accused was the driver. United States v Duffy, 3 USCM A 20, 11 CMR 20.
The decision of the board of review is reversed. The findings of guilty are set aside, and the Charge and its specifications are dismissed.
Judge Ferguson concurs.Trial counsel also asked the witness a general question as to “what causes a ear to accelerate?” The witness replied as follows: “It can only aceel-erate if the engine is running and the accelerator pedal is pressed to do that.” This testimony has no relation to the meaning of the tire mark in the grass.