(concurring):
I concur.
I concur with the Chief Judge but prefer to make some observations on two specific errors asserted by the defense.
Appellate defense contend vigorously that the court member, in his cross-examination of the witness Goodwin, disclosed a purpose to use Goodwin’s judicial confession of guilt as evidence against the accused. I doubt that such a conclusion necessarily follows. The examination was conducted immediately following Goodwin’s testimony to the following effect: That accused was drunk; that he had awakened Goodwin from his sleep; and that when the accused asked Goodwin if he would help the accused get some money, Goodwin did not have any idea “whether he was playing a trick or not.” The questions which immediately followed seem to me to have been asked to bring out that Goodwin did not understand the taking to be done in jest.
In presenting my views on the next issue, I will assume arguendo that the questions were asked for the purpose asserted by the defense. That assumption poses the question of prejudice to this accused. Obviously, every defendant has a right to have his guilt or innocence determined by the evidence presented against him and not by what has happened with regard to a criminal prosecution against someone else. With that principle in mind, I look to the record for evidence of guilt. The Chief Judge relates most of the testimony given by the accused himself, and from that evidence it is beyond question that he judicially admitted the crime of wrongful appropriation, a lesser offense of larceny. The impact of the questioned evidence, then, must be considered for possible effect on the ac-*43eused’s Intent permanently to deprive the victims of their money, and I am certain the finding as to that element was uninfluenced by the fact that Goodwin had pleaded guilty. Trial defense counsel argued that his client was “the only individual in the entire world who can say what went on inside Humble’s head that night.” True it is that the accused stated he intended to return the money, but his acts, as testified to by him, were outside manifestations which render his uncorroborated statement the height of absurdity. He was not an inexperienced squad leader, for he had had some three years prior service in the Marine Corps. He had been drinking, but he begged the question as to whether he was intoxicated and he recounted in precise detail his activities of the evening and admitted that at the time he rifled the clothing he was able to determine the purposes for which he took the money. He conceded he formed an intent temporarily to deprive the recruits of their possessions and if he had the mental capacity to form that intent I cannot ascertain a sound basis for concluding he could not intend to deprive them permanently of their money. Furthermore, his story that he intended to teach the recruits a lesson and then return their property to them is utterly fantastic in the light of his testimony that only one wallet was in the open, he surreptitiously removed the clothing to a place where detection would be improbable, it was dark and he did not know from whom he obtained the money, he extracted the bills from the wallets, divided the loot with his accomplices, co-mingled the amount he retained with his own, kept no record of the amount which he obtained, hid his portion of the ill-gotten gains in a Venetian blind, took money from the clothes of recruits over whom he exercised no control, and, when subsequently interrogated, he stated under oath that he had neither taken any money nor concealed it in the blind.
The facts and circumstances the Chief Judge relates, together with those I mention, prove to my satisfaction that the guilt of accused was so overwhelmingly established by his own admissions from the witness stand that no court member would pay heed to other testimony which bore only remotely on his guilt. I, therefore, join in affirming the decision of the board of review.