(dissenting):
I dissent.
In United States v Hayes, 8 USCMA 627, 25 CMR 131, I disagreed with the holding of the majority and noted my belief that in order “to raise the lesser and included offense of wrongful appropriation, a showing [must] be made that the accused intended to return the identical property misappropriated.” United States v Krawczyk, 4 USCMA 255, 258, 15 CMR 255. See also United States v Krull, 3 USCMA 129, 11 CMR 129. I see little utility in rearguing my concepts in the ease at bar. I do point out, however, that the view announced in the principal opinion represents an extension of the Hayes holding. Futhermore, it is clear we are not bound by a concession of the Government, United States v McNamara, 7 USCMA 575, 23 CMR 39, and I do not accede to the view that Hayes is dis-positive of the instant appeal. While *585the principal opinion comments that the accused’s “post-findings testimony is not entirely clear on whether he intended to make reimbursement at the time he unlawfully took the instrument,” I see no basis for any uncertainty. Without detailing all the evidence, I point out that at the time of the taking, accused was without funds with which to repay the next day, and did not even know who his victim was. And when asked expressly as to his intent at the time of taking, accused testified he just needed the money and cashed the check, adding that next morning when he recalled having taken the check he “had intentions of paying it back.” It is well established that a change of heart on the part of a thief constitutes no defense. It is his intent at the time of the asportation that is determinative, not his intent after he has had time to reflect and decides to repent and make restitution. While repentance and repayment are matters to be taken into consideration on sentence, they do not exculpate a thief from his guilt of larceny, and as I read this record, that is all we have here. Accordingly, even if we were to extend the rule of United States v Hayes, supra, to include the instant situation, the posture of the post-findings evidence in the case at bar does not raise any issue of wrongful appropriation. Thus accused’s statements are in nowise inconsistent with his plea of guilty to larceny, so as to render his plea improvident. Moreover, a plea of guilty should not be set aside on appeal unless it appears clearly that it was improvident and here the principal opinion concedes that the posture of the post-trial statement leaves the issue in doubt. Under well-settled law that sort of showing does not justify a holding that the president of the court abused his discretion in permitting the plea to stand. Friedman v United States, 200 F2d 690 (CA 8th Cir) (1952). I would, therefore, affirm the decision of the board of review.