(dissenting):
I dissent.
Most of the issues before us in this case have been decided favorably to the Government during this term. With respect to these, I invite attention to the views heretofore expressed in my separate opinions in United States v Humble, 11 USCMA 38, 28 CMR 262; United States v Bethas, 11 USCMA 389, 29 CMR 205; and United States v Smith, 11 USCMA 321, 29 CMR 137.
Without regard to these issues, however, it is obvious that this case should be reversed on other instructional deficiencies. In United States v Curtin, 9 USCMA 427, 26 CMR 207, a majority of this Court concluded that construc*698tive knowledge could not be made tbe basis for criminal liability. Here, the law officer advised the members of the court-martial that it was essential that the prosecution prove beyond a reasonable doubt “that the accused had actual or constructive knowledge that he was not entitled to these payments.” The court, therefore, was permitted to find accused guilty of larceny despite his honest belief he was entitled to the payments if they also found he should have known he was not so entitled. Cf. United States v Curtin, supra; United States v Walters, 10 USCMA 598, 28 CMR 164. This instruction is merely another way of saying that an accused’s honest mistake must also be reasonable if it is to be a defense of larceny. We have repeatedly rejected this contention. United States v Sicley, 6 USCMA 402, 20 CMR 118; United States v Jones, 7 USCMA 83, 21 CMR 209; United States v Thornton, 8 USCMA 446, 24 CMR 256; United States v Smith, 9 USCMA 317, 26 CMR 97; United States v Holloway, 10 USCMA 595, 28 CMR 161. As the question of accused’s guilt was-, submitted to the court upon this erroneous premise, it is clear to me that reversal is required.
The principal opinion seeks to distinguish our holding in Curtin, supra, on the basis that the law officer here did not define the term “constructive knowledge.” This, indeed, is a distinction without a difference. Not. only are court members presumed to-follow and apply the law officer’s instructions but it is also to be noted that, due to the participation in the. administration of military justice by lay personnel, court members are frequently required to engage in the study of the Manual for Courts-Martial, United States, 1951, and to undergo prescribed training in military law. Therefore, to say there is no fair risk here that the members misapplied the concept involved in the instructions is simply to fly in the face of reality.
I would reverse the decision of the board of review and order a rehearing.