(concurring in the result) :
I concur in the result.
The court-martial, convening authority, and board of review have considered the evidence in this case and each independently concluded that the facts shown by the prosecution established the guilt of the accused beyond a reasonable doubt. Accordingly, to determine insufficiency at this level, we are required to find that the yardstick used by the finders of fact was inappropriate as a matter of law. When that situation exists I prefer to point out specifically wherein I believe the measuring rod was short.
The Government elected to prosecute the accused on a theory that he-wrongfully and dishonorably failed to place funds on deposit or maintain a balance in the bank sufficient to- pay the checks upon their presentment. No attempt was made to allege or prove an intent to deceive in uttering the' checks. Accordingly, the problem narrows to a determination of whether accused’s post-issuance conduct was dishonorable. This is made quite clear by the letter addressed to him which stated the checks would be returned by the Open Mess upon payment of their face value. Any fraud or deceit m cashing the checks becomes relevant only for the purpose of casting color on accused’s subsequent conduct. This was the view taken by the board of review but my difficulty arises because I find nothing done by accused thereafter which can be construed to impute dishonor.
I do not go as far as my associates seem to proceed, for I take the position that the tender of the money to redeem the checks is a factor favorable to accused, but it does not bar culpable failures thereafter. To me it offers ' a starting point for appraising his criminality but it neither satisfied the debt nor permitted the accused to use devious and dishonorable means to avoid paying the obligation. When his first offer to redeem was refused — and for a valid reason — accused was' still obliged to remit the money to the bank or redeem the checks when they were returned. Without regard to the niceties of civil law concerning negotiable instruments, I consider that when he tendered the money and payment was refused he did not free himself from the military requirement proscribing dishonorable failure to satisfy his obligations. Certainly he did not change any debtor-creditor relationship, which may have been created and we should assess his conduct at least by the test we have prescribed for failure to pay a debt.
In' United States v Kirksey, 6 USCMA 556, 20 CMR 272, we held that failure to liquidate a debt was not an offense unless the conduct of the accused in failing to pay was bottomed on willful evasion, bad faith, false promises, or some similar type of culpable motivation. Assuming the debt was .fraudulently contracted, it occurs to me that in the case at bar the Govr ernment, having relied on dishonorable failure after the fraud, was required to prove some criminality of the sort men-' tioned above and it is this deficiency which is fatal to the findings. Here "the accused offered to redeem the checks on February 17, 1958, and it was not until March -8, 1958, that he. was notified the instruments had been returned and should be redeemed. Ten days there*440after charges were preferred against him. While it is true he did not make full restitution for the checks until June 3, 1958, the offenses of which he stood accused had to be committed, if at all, prior to the time the charges were preferred. If I take the offer to redeem as a starting time, there is approximately one month in which the accused failed to deposit the money with the bank, redeem the checks, acknowledge receipt of the demand, or contact the mess. And, of course, no dishonor can be imputed to accused for a large part of this period, for he was told it would be permissible to redeem the checks upon their return, which was the accepted practice at his base. If I use the time of notice of dishonor, there is but ten days. There is no showing of any other fact subsequent to these times from which culpability might be inferred and, standing alone, failure to satisfy the obligations within a given time, unless the period is unconscionable, is not sufficient for that purpose. A showing of unwarranted refusal to pay, any receipt of income, wasting of funds, unnecessary expenditures, or available sources of revenue from which it could be inferred reasonably that accused had the ability to pay is singularly missing in the testimony. The only items upon which the Government can rely to sustain the findings are the failure to forward the money or redeem the cheeks within the above-mentioned periods and those are not sufficient to support a finding of dishonorable conduct.
For the foregoing reasons, I concur with my associates in their disposition of the case.