(concurring):
I concur.
While I join my associates in affirming the decision of the board of review, I prefer to set forth my views with respect to the accuracy of the questioned instruction.
The accused was found guilty of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, and three specifications of larceny, in violation of Article 121, 10 USC § 921. Intermediate appellate authorities affirmed, and we granted review on the question whether the president of the special court-martial erred in his instructions on the offense of larceny with respect to the element of wrongfully obtaining property by means of false pretenses.
At the outset, it should be noted that the accused pleaded guilty to the offenses of wrongful appropriation, also in violation of Code, supra, Article 121, included in the specifications of larceny and persisted in that plea after a full explanation of its meaning and effect. Thereafter, evidence was adduced tending to establish that he obtained money by means of negotiating worthless checks, intending at the time of their utterance that they not be paid upon presentment. At the conclusion of the trial, the president instructed the court-martial on the elements of the offenses charged and the lesser included offense of wrongful appropriation. Following his discourse upon the constituent parts of larceny, he added the following comments:
“The court is further advised that with respect to the element that the accused wrongfully obtained the property, obtaining property by false pretense is wrongful. A false pretense is a false representation of a past or existing fact. The pretense must be in fact false when made, and the accused must have known it was false to the extent that he did not have an honest belief that it toas true.
“In addition to the other kind of facts, the fact falsely represented by a person may be his intention. Consequently, one who represents that he presently intends to perform a certain act in the future, but who at the time of his representation does not honestly intend to perform the act, makes a false representation of an existing fact — his intention — and thus a false pretense. For example, a person makes such a false pretense by uttering a check made by him if at the time of the utterance he did not honestly intend to have sufficient funds in the bank available to meet payment of the check upon its presentment for payment in due course.” [Emphasis supplied.]
The difficulty with the quoted instruction is that it tends to shift to the accused the burden of proving his innocence. Boatright v United States, 105 F2d 737 (CA 8th Cir) (1939). In that case, the defendants were charged with using the United States mails in furtherance of a fraudulent scheme. The trial judge advised the jury that, if it was found that “these defendants did not devise an artifice or scheme to defraud; that they did not make false and fraudulent representations or pretenses; . . . then it would be your duty to find either one or both of them not guilty.” In reversing the judgment of guilty and directing a new trial, the Circuit Court of Appeals noted with respect to the quoted instruction:
“. . . But this instruction placed upon the defendants the burden of convincing the jury that they did not devise a scheme, that they did not make false representations, that they did not intend to defraud, that they did not intend to obtain money by *31false pretenses. The instruction, we think, was erroneous.” [Boatright v United States, supra, at page 740.]
See also Minner v United States, 57 F2d 506 (CA 10th Cir) (1932), and Drossos v United States, 2 F2d 538 (CA 8th Cir) (1924). The vice present in the Boatright instruction is equally present here, for implicit in the declarations that accused was guilty if he “did not have an honest belief” that his representations were true and “did not honestly intend” to deposit sufficient funds to cover the checks he drew is the concept that he must demonstrate his innocence to the court. Of course, the contrary is true, for the burden is upon the Government to establish the affirmative falseness of accused’s representation of his intention as in the case of every other element of the offense. Code, supra, Article 51, 10 USC § 851; United States v Rowan, 4 USCMA 430, 16 CMR 4.
The conclusion that the court-martial was improperly advised does not, however, dictate that the error was necessarily prejudicial to the accused’s substantial rights. As noted above, he pleaded guilty to the lesser included offense of wrongful appropriation. Once accepted by the court-martial as voluntary, that plea established the accused wrongfully obtained, by means of a material false pretense, the monies involved, leaving in issue only the question of his intent. United States v Glover, 2 USCMA 164, 7 CMR 40; United States v Estes, 2 USCMA 171, 7 CMR 47. As the false representation upon which the questioned instruction bore was thus established by his plea, it is apparent that the error could have caused the accused no harm. Thus, I join in the disposition of the case ordered by the author of the principal opinion.