Opinion of the Court
ROBERT E. Quinn, Chief Judge:This case brings up for review the admissibility in evidence of a statement made by Brazier before trial.
A charge of larceny of certain guns belonging to the United States, including two machine guns, was lodged against the accused and another airman, all of whom were stationed at the Sidi Slimane Air Base, Morocco. At trial each accused was represented by separate counsel. The prosecution showed that the base authorities suspected an attempt would be made to steal guns from a warehouse on the night of March 31, 1958, for later sale to Moroccans. They placed the building, which was guarded by Cox, one of the accused, under observation from a vantage point about 600 feet from the warehouse. They also had an informer Thibodeau working with Brazier.
In a car procured by Vail, Brazier and Thibodeau drove to the warehouse area on the night in question. Cox, who knew Brazier, let them inside the building.1 Obtaining a screwdriver from Cox, Brazier and Thibodeau broke open a box from which they removed two .30 caliber machine guns, a .45 pistol, and a Lyle gun. These *135articles were carried out of the building. In a few minutes Brazier and Thibodeau re-entered the warehouse. The provost marshal and his aide went after them. At gun point, they relieved Cox of his guard weapon and called out to Brazier to come forward. Brazier emerged from behind some boxes. Major Crisp, the provost marshal, testified that he then “asked Brazier to show . . . [him] where the guns were which had been removed from the warehouse.” Earlier, Thibodeau had testified to the same statement and the accused’s reply, without objection from any of the three defense counsel, but on cross-examination Brazier’s defense counsel attempted to show that Major Crisp used a “peremptory” tone of voice, and that he did not inform the accused of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831. However, when the guns and their wooden containers were offered into evidence, Brazier’s counsel objected to their admission. He contended in part that the articles were inadmissible because they were obtained by reason of “the statement of the accused while under suspicion . . . [and without being] advised of his rights under Article 31.”
Two preliminary questions are raised by the record of trial. The first is whether Vail can, under the circumstances of the case, avail himself of the purported denial of a right belonging to Brazier. Cf. United States v Sessions, 10 USCMA 383, 27 CMR 457. The second is whether Brazier waived his right to object to the admission in evidence of the guns by failing earlier to object to the testimony of the conversation which led to their seizure. See United States v Williams, 8 USCMA 443, 24 CMR 253. However, we prefer to pass over the preliminary questions to reach the heart of the appeal. The real question is whether an accused apprehended in the very commission of a larceny must be advised of his rights under Article 31 as a condition to the admission of testimony of his reply to a demand to produce stolen property.
In United States v Minnifield, 9 USCMA 373, 379, 26 CMR 153, we noted that “it is a liberal and enlightened, rather than a narrow and grudging, application of Article 31 that is best calculated to insure to the military the preservation of our traditional concepts of justice and fair play.” However liberal the application of Article 31, it cannot be applied without regard to the circumstances under which the statement is made. We have emphasized that Article 31 is not applied indiscriminately to all pretrial statements by the accused. In United States v Schilling, 7 USCMA 482, 22 CMR 272, we held that the provisions of Article 31 do not bar testimony of pretrial admissions of guilt by the accused in response to questioning by private persons. In United States v Hopkins, 7 USCMA 519, 22 CMR 309, we held that the Article did not apply to questions about an apparent shortage in a routine audit conducted by a regular auditor; and in United States v Dandaneau, 5 USCMA 462, 18 CMR 86, we sustained the admission of a pretrial statement by the accused to an officer on the ground that there was sufficient evidence to support the law officer’s ruling that the situation was not one within the meaning of Article 31.
Slight differences in the factual background may bring the case within the operation of Article 31 or effect its exclusion. United States v Nowling, 9 USCMA 100, 25 CMR 362; United States v Doyle, 9 USCMA 302, 311, 26 CMR 82, dissenting opinion by Chief Judge Quinn. Had the accused in this case been taken to the air police office’ and asked to disclose where he had put the stolen property, unquestionably Article 31 would preclude admission of his response, in the absence of preliminary advice to him of his rights under the Article. United States v Bennett, 7 USCMA 97, 100, 21 CMR 223; United States v Taylor, 5 USCMA 178, 17 CMR 178. Here, the demand was not made at a time after the offense in an effort to obtain evidence from the accused which might help convict him. It was addressed to the accused as a part of his apprehen*136sion in the actual commission of the offense. Common sense tells us the arresting officer cannot be expected to stop everything in order to inform the accused of his rights under Article 31. On the contrary, in such a situation he is natui'ally and logically expected to ask the criminal to turn over the property which he has just stolen. That is the substance of Major Crisp’s demand. We think Congress did not intend Article 31 to stay the natural outcome of an apprehension until the police officer informed the accused of the nature of the accusation and that he does not have to make any statement but if he does the statement can be used against him in a trial by court-martial. The nature of the accusation is manifest to an accused who is caught “red-handed.” Equally obvious to him is the fact that he must surrender the stolen property under his immediate control and that the property will be used as evidence against him. In our opinion, Article 31 is inapplicable to the situation presented in this case. We hold, therefore, that the accused’s objection to the admission of the guns in evidence was properly overruled.
The decision of the board of review is affirmed.
. The board of review set aside the findings of guilty as to Cox on the ground that the evidence did not show beyond a reasonable doubt he was “a knowing party to the larceny.” ACM 15901, March 23, 1959.