(concurring in part and dissenting in part) :
I concur in part and dissent in part.
While I am in complete agreement with my associates that accused’s petition for new trial should be denied and that the other assignments of error are without merit, I dissent from the Court’s holding on the principal contention urged by accused — -that the law officer’s instructions were erroneous.
The artificial division of the same statute into lesser and greater offenses based on detestation, when but a single crime has been defined by Congress, is unique and unsupported by law or logic. Unique, too, is the reasoning that steal means larceny; larceny is particularly odious; and therefore in the military a special niche must be reserved for that offense. I thought it was a cardinal rule of statutory construction that words in a statute were to be interpreted in their ordinary acceptation and significance and the meaning commonly attributed to them. If that rule is applied, a hasty reference to any standard or legal directory will disclose that steal means to take without right or authority. However, if odium is to be the touchstone for measuring the gravity of an offense, I suggest the following thought which I express by means of paraphrasing a well-known saying: He who steals my wallet steals trash but he who steals my correspondence not only takes my property but he steals my innermost secrets and destroys the privacy of my confidential communications. Most assuredly, one the least bit familiar with the morale of overseas troops well knows that the interruption of messages to and from home may, in addition to the loss of property, end in broken spirits and disrupted family ties. If larceny has a special niche because it is odious, stealing mail is an offense which is more abhorrent.
As the majority notes, we have in prior decisions equated the military mail offenses generally to the Federal postal crimes. Accordingly, established precedent concerning the latter should be helpful in resolving the instant issue. See United States v Lorenzen, 6 USCMA 512, 20 CMR 228. The Court, however, ignores those authorities and refuses to recognize that we are here concerned not with a stealing in the sense of Article 121, Uniform Code of Military Justice, 10 USC § 921 —which punishes theft of another’s property with a specific intent — but with a stealing from the mail in contravention of Article 134 of the Code, *38210 USC § 934 — which proscription is calculated to preserve the sanctity of the mails. A quotation from one of the authorities cited by my colleagues and reference to another should make my point clear. In United States v Trosper, 127 Fed 476, the District Court was concerned with asserted defects in an indictment alleging that the defendant “did steal” from the mail. In the course of its decision rejecting the defense contentions, the court made the following illuminating statement unmentioned by my brothers:
. . [I] t may be well to observe, again, that the word ‘steal’ in said clause is not used, as already indicated, to designate technical larceny, but means simply ‘to take without right or leave.’ ”
Moreover, in mail offense cases, other elements of larceny under Article 121, Uniform Code of Military Justice, 10 USC § 921, are not involved. As was noted in Bowers v United States, 148 Fed 379 (CA 8thCir), it is unnecessary that ownership in another be established, and value is immaterial. It is apparent, therefore, that my colleagues are mistaken in their con-elusion that the Government, if it has alleged stealing from the mail, must establish every element of larceny under Article 121 of the Code, supra. And imagine the confusion which would exist if the value of the mail matter taken must be proved to fix the maximum punishment. Private correspondence may have no market value, but it often carries a message which cannot be purchased with legal tender, and the sanctity of the mails ought to offer it the same protection as a letter containing specified sums of money. The penalty for the interference should, therefore, not be determined by intrinsic worth. Manifestly, then, the instruction given by the law officer in the instant case cannot be branded as erroneous, for he properly defined “steal” in the sense it is used in the Article 134 mail offense.
The majority assert, however, that Trosper is inapposite for the reason that the court was there concerned only with a question of pleading. I merely point out that an indictment or a specification must state, either expressly or by fair implication, those items requisite to a successful prosecution. It is obvious and elementary that the Government need not overprove the facts alleged and manifestly instructions serve simply as guides for use by the triers of fact to determine whether the Government has proved its case. Tros-per, then, authoritatively states the meaning of “steal” when used in a mail offense. Therefore, if we are to be guided by the civilian rule, it follows that the law officer’s in-struction in the case at bar which defines steal in the terms of Trosper is eminently correct. And I point out that my conclusion is not without support in prior service cases and in at least one opinion emanating from this Court. As long ago as United States v Lamphere, 3 CMR 531, the military approved the instruction as given by the law officer. And in United States v Rios, 4 USCMA 203, 15 CMR 203, at page 207, we made the following observation which is pertinent to the issue at hand:
“. . . We cannot fail to observe, however, that, even in construing pleadings, ‘steal’ is not always deemed to ‘designate technical larceny, but means simply “to take without right or leave” ’. United States v Trosper, 127 Fed 476 (DC Calif); United States v Lamphere, 3 CMR 531. And in a general sense it may be used to designate any wrongful conversion. 32 Am Jur, Larceny § 2, page 886.”
Further, the disposition ordered by the Court is of more than casual interest. Curiously enough, my associates conclude a “wrongful taking” from the mail is a lesser included offense to a charge of stealing from the mail. That to me is like saying larceny by trick is a lesser included offense of larceny by fraudulent representations. We have noted in previous cases that Articles 85 and 132, Uniform Code of Military Justice, 10 USC §§ 885 and 932, respectively, merely set forth different ways in which a single offense in contravention of each respective statute can be committed. United States v *383Redenius, 4 USCMA 161, 15 CMR 161; United States v Johnson, 5 USCMA 297, 17 CMR 297; United States v Smith, 7 USCMA 102, 21 CMR 228. See also United States v Rosen, 9 USCMA 175, 25 CMR 437. The same principle should be applied in mail offenses, for any wrongful interference with that channel of communication — - by whatever means committed — is proscribed. The different acts are but different means of committing the same offense and the punishment imposable for any such infraction is identical. Reassessment of sentence on the basis of the same facts and for the same offense carrying the identical punishment is both a fruitless and futile act. The board of review has already approved the sentence as appropriate on the basis that the accused took the mail matter without right or permission. The present decision affirms the conviction on that theory, and a repeat performance should not be required.
I would affirm the decision of the board.