(dissenting):
I dissent.
In my opinion, the law officer erred to the accused’s prejudice in failing sua sponte to instruct the court-martial upon the elements of a reasonably raised lesser included offense and in limiting the accused’s defense of mistake of fact to those errors which did not result from gross indifference.
Tried upon charges of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, two specifications of larceny by check, in violation of Code, supra, Article 121, 10 USC § 921, and three specifications of wrongfully making worthless checks with intent to deceive, in violation of Code, supra, Article 134, 10 USC § 934, the accused pleaded guilty to the unauthorized absence and not guilty to the other offenses. He was found guilty of absence without leave and of writing two bad checks with intent to deceive.
The prosecution introduced evidence tending to establish that the accused negotiated two worthless checks on September 27, 1958. On September 29, 1958, he negotiated an additional check. On October 4, 1958, he negotiated a check for $12.00 to the Bay Area Exchange and another check to a San Francisco Motel for $8.00. Each check was signed with his proper name and included his correct military address. All of the checks were returned by his bank unpaid, as his account was overdrawn.
The accused’s father testified for the defense. He stated that he, at the request of the accused, had mailed a cash deposit of $285.00 to accused’s bank on September 4, 1958. The deposit was apparently not received by the bank, and he was engaged in having the Post Office Department trace the letter in which the money was enclosed. Accused *157appeared as a witness on his own behalf and testified that he thought all of the checks which he wrote would be paid at the time he uttered them. He corroborated his father’s testimony insofar as was possible for him to do so, and declared, on cross-examination, that he did not recall having a telephone conversation with a Mrs. Tanner, “a woman from the Bay Area Exchange,” on October 1, 1958, in which he was informed that one of his checks had been returned and in which he stated that he would redeem the instrument on October 2. He also testified that he did not remember a second telephone conversation with the same person on October 2, 1958, in which he informed her he would send someone over with the money to buy back the cheek. He was equally unable to recollect a third conversation with Mrs. Tanner on October 6. Accused did not deny that the conversations occurred, but explained he could not recall them because he was in “a nervous and upset state.” He stated, “I couldn’t honestly make up my mind whether to leave the service or to go on and finish my enlistment, even though my doctor had recommended that I had to do one or the other or I’d continually be in a state.” It was then developed that, at the time of the telephone calls, he had just returned to his organization “from psychiatric care . . . there’s a lot of things I just don’t remember.” Questions by members of the court established that accused had been suffering from a nervous condition for approximately eighteen to twenty months; had his second breakdown in August 1958, for which he was hospitalized; and that he had received “outpatient care from civilian doctors and several here at the psychiatric clinic.” '
The defense ended its case by adducing evidence of accused’s good character and approximately eleven years of prior honorable service. It was also shown that he had made restitution for all of the checks involved.
In rebuttal, the trial counsel established that accused was examined by a qualified psychiatrist on November 10, 1958, and was found to be both responsible and capable. He then presented the testimony of Mrs. Ethel Tanner, Main Cashier, Bay Area Exchange. Mrs. Tanner called accused’s organization on October 1, 1958. The person who answered the telephone stated that he was “Sergeant Stratton.” This was her “only means of knowing that the individual” to whom she was speaking was the accused. She informed him his check had been returned for “insufficient funds.” He stated he would be in on the following day.
Thereafter, Mrs. Tanner testified that Sergeant Stratton did not appear although she called him again on October 2 and October 6, 1958.
Following final arguments, the law officer instructed the members of the court-martial on the elements of the offense charged and wrongful appropriation as a lesser included offense of the larcenies. He did not advise them concerning any lesser included offense involved in the making of worthless checks-with intent to deceive. However, he did inform the court-martial that an issue was raised by the evidence concerning accused’s ignorance of the state of his-bank account. In this respect, he stated:
“The defense has introduced evidence to show that at the time of the alleged offenses of making and uttering the worthless checks the accused was under the mistaken belief that he had sufficient monies in said bank to> cover payment of the checks. With respect to this evidence, the court is advised that if the accused was laboring under such mistake, and if his-mistake was honest and not the result of gross indifference, he cannot be found guilty of making and uttering a worthless check, for it is essential to a conviction for this offense that the prosecution prove beyond a reasonable doubt the accused had dishonorably failed to have sufficient funds in said bank for payment of such checks upon their presentment, for payment. The burden is on the prosecution to establish the accused’s guilt by legal and competent evidence, beyond a reasonable doubt. Consequently, unless you are satisfied beyond a reasonable doubt that the ac-*158«used was not under the mistaken “belief that he had sufficient funds in said bank to cover the payment of the checks, and likewise satisfied beyond .a reasonable doubt that his mistaken belief was the result of gross indifference on his part, you must acquit the accused.” [Emphasis supplied.]
I am certain the evidence heretofore recited raises an issue in this record concerning the lesser in-eluded offense of wrongfully making a worthless •check without intent to deceive and thereafter dishonorably failing to maintain sufficient funds on deposit to insure its payment, in violation of Code, supra, Article 134. The author of the principal opinion concludes that the lesser ■offense was not in issue, as the accused conceded he had made and uttered the checks in question but made no covering ■deposits, as he believed his father had forwarded sufficient funds to the bank. In my opinion, this ignores the fact that accused made no effort to ascertain from his father whether he had in fact mailed the deposit or whether the bank had in fact received the money. In United States v Downard, 6 USCMA 538, 20 CMR 254, we pointed out that the lesser ■offense here involved required that the accused’s failure to deposit funds to ■cover his checks be the result of gross indifference on his part. The essence of Sergeant Stratton’s testimony is that he called his father and directed him to deposit the sum of $285.00 in the bank. His father testified that he mailed this sum to the bank. Stratton admitted he made no effort to see if his father had in fact mailed the sum until the checks were returned and that he did not contact the bank to see if they had received the money. Moreover, from the Exchange cashier’s testimony, it is apparent that, at the time he wrote the checks involved in the specifications before us, the accused was aware of the necessity for covering them. Under the circumstances, I am sure it is reasonable to characterize his failure to do so as resulting from gross indifference, and I would hold that the law officer was required to instruct on the elements of the lesser offense.
The second issue before us is whether the law officer correctly advised the members of the court-martial concerning the affirmative defense of mistake of fact. The Chief Judge argues that the instruction did not mislead the court members, for it was limited to the element of dishonorable failure to deposit funds to cover the checks involved. The difficulty which I find with that position is that the effect of accused’s defense is so limited. As he apparently concedes, an issue is clearly raised concerning whether accused, at the time he made and uttered the checks in question, was operating under the honest belief that he had on deposit sufficient funds to afford payment of the checks in question. The principal effect of that mistake is to eliminate the subjective intent to deceive required for conviction of the offense charged, and to permit conviction solely on the basis of a grossly indifferent state of mind. United States v Rowan, 4 USCMA 430, 16 CMR 4; Manson, Mistake as a Defense, 27-100-6 Military Law Review 63, October 1959. As succinctly stated by the author of the mentioned article, at page 68:
“. . . [W]here culpability is based upon a conscious intent or purpose to engage in certain conduct or to accomplish a certain result, an honest ignorance or mistake, no matter how unreasonable, which shows that the accused did not have that intent or purpose is a defense.”
Thus, the law officer’s error lies in restricting the effect of accused’s mistake to the element of dishonor and preventing the members of the court-martial from considering it on the equally important question of whether he had an intent to deceive. A proper instruction would have been to the effect that evidence of accused’s honest mistake should be considered on the issue of his intent at the time he made the cheeks in question and that, unless the members of the court-martial were of the opinion he possessed such an intent despite his claim of mistake, he was entitled to an acquittal. Following that advice, the court should have been instructed concerning the effect of mis*159take on the element of dishonor. Only when both guides were given would it be possible for the members to reach an informed decision. With the evidence in the state presented by this record, I am sure they did not. Accordingly, I believe reversal must follow. ■
I would reverse the decision of the board of review concerning the bad check offenses and authorize a rehearing on those delicts.