(dissenting):
I dissent.
I have heretofore set forth in my separate opinions in United States v Dinsmore, 11 USCMA 28, 28 CMR 252, and United States v Smith, 11 USCMA 321, 29 CMR 137, the rationale by which I conclude it is prejudicially erroneous to instruct the members of a court-martial that an accused’s knowledge of the falsity of his representations is established when it is concluded he did not have an honest belief that those pretensions were true. Normally, therefore, I would be content to note my disagreement with my brothers, particularly when, as in this case, defense counsel has conceded that the error which I originally perceived did not harm the accused. Cf. Boatright v United States, 105 F2d 737 (CA 8th Cir) (1939).
The unwarranted extension of the offense of larceny by false pretenses, in the majority opinion, however, requires that I set down the considerations which lead me to believe that its rationale, entirely foreign to the previous discussion in United States v Smith, supra, is faulty.
Among other offenses, the accused was found guilty of several specifications of larceny and a bad check offense in violation, respectively, of Uniform Code of Military Justice, Articles 121, 10 USC §921, and 134, 10 USC § 934. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for four years. With some reduction in the sentence, intermediate appellate authorities affirmed, and we granted review on the issue whether accused was prejudiced by the law officer’s instruction that:
. . The pretense must, in fact, be false when made and when the property is obtained and it must be knowingly false and in the sense it is made without an honest belief in its truth.”
Accused’s alleged larcenies and the check offense were predicated upon the making and uttering of checks either upon nonexistent accounts or upon an account which contained insufficient funds to honor the instrument involved. My brothers concede that the evidence adduced by the accused is sufficient to raise an issue concerning his honest belief that his wife had opened accounts for him and that the checks would be honored upon presentment. In other words, the posture of the record is such that the members of the court-martial would have concluded either (1) that the accused was affirmatively aware that the representation involved in the negotiation of the checks was false, or (2) that he honestly believed the representation to be true, or (3) that he did not know whether it was true or false.
*395The first alternative shown by the evidence is fully covered by the instructions on the elements of proof of larceny and the bad cheek offense. The second issue was fully explained to the court-martial by the correct advice on the affirmative defense of mistake of fact. It is with the third issue that I am herein concerned, for it is covered by the instruction quoted above, and my brothers state that it, along with other pertinent considerations, establishes guilt of larceny by false pretenses. Thus, they contend that, if an accused makes a representation, which is in fact false, and he did not, at the time it was made, know whether it was true or false, he has made a knowingly false representation within the meaning of Code, supra, Article 121. This concept is entirely at odds with our former holdings in this area.
We have repeatedly held that Article 121 created no new offenses under the Code. It represents no more than' a codification of the common-law crimes of larceny, embezzlement, and obtaining property by false pretenses. United States v Aldridge, 2 USCMA 330, 8 CMR 130; United States v Norris, 2 USCMA 236, 8 CMR 36; United States v Buck, 3 USCMA 341, 12 CMR 97. As was said in the last cited case, at page 343:
“. . . Since the whole is equal to, not greater than, the sum of all its parts, that which did not constitute common law larceny, embezzlement, or false pretenses, prior to the adoption of Article 121 (a), supra, was not thereafter punishable as a violation thereof.”
The offense of false pretenses, among other elements, involves the making by an accused person of a false representation which he affirmatively and subjectively knows to be false. Nelson v United States, 227 F2d 21 (CA DC Cir) (1956), Annotation, 53 ALR2d 1215; Robinson v United States, 42 App DC 186 (1914); 22 Am Jur, False Pretenses, § 58; Annotations, 35 ALR 344, 174 ALR 174. The principal opinion, however, does away with this element, for it approves an instruction which permits guilt to be found if the accused did not know whether his representation was true or false. In short, regardless of Judge Latimer’s disclaimer, he imports into the criminal law the civil fraud concept that one is held in law to know to be false that which he asserts to be the fact. The Philadelphia, Wilmington & Baltimore Railroad Co. v Howard, 13 How 307 (US 1851). Of the adoption of such concepts, it has been generally declared:
“. . . Some judges have ventured to say that an attempt to punish criminally all kinds of fraud would exhaust all the revenues of the state in the building and maintenance of penitentiaries. The notion that it is impracticable to make the criminal law coextensive with moral delinquencies is evidently responsible for the fact that many cases of fraud and deceit are left to be dealt with exclusively by civil tribunals.” [22 Am Jur, False Pretenses, § 13, page 451.]
More specifically, courts giving thoughtful consideration to the problem have rejected the notion that guilt of false pretenses can be so predicated. In State v Samurine, 47 NJ Super 172, 135 A2d 574 (1957), it was remarked at page 581:
“In an indictment for obtaining money by false pretenses, defendant must be shown to have known of the falsity of the representation. Falsity, in the sense of [the New Jersey statute], must be subjective as well as objective; the statement must not only be false in fact but false to the knowledge of its utterer. The burden of proving guilty knowledge is on the prosecution, and failure of the State to prove this element compels acquittal even though a misrepresentation may in fact have been made.
“We pause to comment upon the State’s contention that ‘if it appeared that defendants made the representations and did not know in fact that, the representations were true, such evidence is sufficient to justify a verdict of guilty by jury,’ citing 2 Wharton, Criminal Law (12th ed. 1932), § 1454, p. 1741. The exact quotation from Wharton is that ‘proof that the *396defendant was ignorant of a fact that he stated sustains a charge of false statement.’ The author cities a single case in support, Reese River Mining Co. v Smith, L. R. 4 H. L. 79, 39 L. J. Ch. (N. S.) 849 (H. L. 1870), a civil case sounding in equitable fraud and certainly not apposite in the instant circumstances.” [Emphasis supplied.]
In Avant v United States, 154 A2d 354 (Mun CA DC) (1959), the Municipal Court of Appeals for the District of Columbia was confronted with an instruction which permitted defendant’s conviction of false pretenses without regard to his affirmative knowledge of the falsity of the representation if the jury found that the statement was made “ ‘recklessly and not caving whether it is true or false.’ ” In holding the instruction prejudicially erroneous, the Court pointed out that affirmative, subjective knowledge of the pretense’s falsity was required, and that the objective standard of the advice to the jury permitted guilt to be found upon an improper predicate. See also State v Pickus, 63 SD 209, 257 NW 284 (1934), and State v Lien, 72 SD 94, 30 NW2d 12 (1947).
In other areas, this Court has also rejected the idea that criminal convictions may be built upon the accused’s duty to know as compared to his actual knowledge. In United States v Curtin, 9 USCMA 427, 26 CMR 207, a majority <of this Court, Judge Latimer dissenting, found that instructions permitting guilt of failure to obey a lawful order, in violation of Code, supra, Article 92, 10 USC § 892, to be founded upon “constructive knowledge” of the command were prejudicially erroneous. In rejecting the contention that constructive knowledge was sufficient, we said, at page 432:
“The instruction here under attack informed the court it was unnecessary for the prosecution to prove the accused had actual knowledge of the order that the proof of ‘constructive knowledge’ would suffice. The law officer explained that ‘constructive knowledge’ existed ‘when the accused, by the exercise of ordinary care, should have known of the matter, whether or not he did so in fact.’ Such an instruction is deficient for two reasons. Firstly, it was capable of misleading the court into believing that evidence of constructive knowledge would have been an acceptable substitute for proof of actual knowledge. Such is not the law.”
In like manner, I do not believe that guilt of larceny by false pretenses may correctly be predicated upon an accused’s failure to ascertain the truth or falsity of his representations. The introduction into our criminal law of this civil fraud concept does away with the traditional element of scienter and permits a conviction to be erected upon mere reckless assertions. While the end result may achieve the worthy objective of teaching military personnel to be careful with their bank accounts, the rationale by which it is reached unduly strains the terms of a heretofore plainly construed statute. Its adoption smacks of the legislative process rather than the judicial, and I suggest that such a broadening of Code, supra, Article 121, is better left to the branch of Government charged with the authority so to amend it.
Moreover, the interpretation which the Court today adopts is totally unnecessary. Adequate protection for commercial channels exists in the presence under Code, supra, Article 134, of two bad cheek offenses. Both punish dishonorably floating worthless paper, and they differ only in the presence or absence of an intent to deceive. United States v Downard, 6 USCMA 538, 20 CMR 254. It is here that the recklessness of the representations made in dishonored checks becomes pertinent, for we have spoken of these delicts as involving bad faith or gross indifference. United States v Downard, supra, at page 544; United States v Connell, 7 USCMA 228, 22 CMR 18. Indeed, as the intent to deceive involved in the major bad check offense is closely akin to the intent to defraud involved in larceny by false’ pretenses, the difference between the requirement of actual knowledge of - the representation’s falsity in the latter and the recklessness of accused’s conduct in the former has *397heretofore marked out one of the principal distinctions between the two crimes. I fear that my brothers, by approving the instruction before us today, heedlessly blur that difference.
In sum, I would hold that larceny by false pretenses involves actual knowledge on the part of an accused of the falsity of the representation he is alleged to have made. As I believe the instructions now before us do not set forth that standard and as well involve the deficiency which I discussed in United States v Dinsmore, supra, I must conclude that they were prejudi-cially erroneous.
Accordingly, I would set aside accused’s conviction of false pretenses and return the record of trial to the board of review for reassessment of the sentence on the remaining findings of guilty.