(dissenting):
I dissent.
I cannot agree that the specification *763purporting to allege false swearing fails to state an offense. Without belaboring the point, I invite attention to the following discussion of false swearing quoted from paragraph 213d (4) of the Manual for Courts-Martial, "United States, 1951:
“False swearing is the making under lawful oath of any statement, oral or written, not believing the statement to be true.”
Certainly the specification found wanting by my brothers conforms to that definition. Likewise, insofar as false swearing may be analogized to perjury, I am unable to perceive any deficiency in the allegation with which we are concerned. Paragraph 210 of the Manual has this to say about perjury:
“The false testimony must be willfully and corruptly given; that is, it must appear that the accused did not believe it to be true. A witness may commit perjury by testifying that he knows a thing to be true when in fact he either knows nothing about it at all or is not sure about it, and this is so whether the thing is true or false in fact.”
Furthermore, the above-quoted statements are in harmony with the Federal perjury statute. Section 1621 of Title 18, United States Code, provides that:
“Whoever, having taken an oath before a competent tribunal, officer, or person, in any ease in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, ■declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, . . .”
In United States v Debrow, 346 US 374, 98 L ed 92, 74 S Ct 113 (1953), the Supreme Court considered the sufficiency of indictments to charge an offense in violation of 18 USC § 1621, supra. The indictments averred pertinently that, having been duly sworn before a competent tribunal inquiring into a matter there, pending in which the law authorizes administration of an oath that he would testify truly, the defendant “did unlawfully, knowingly and wilfully, and contrary to said oath, state a material matter which he did not believe to be true.” It will be seen that those allegations are, insofar as we are here concerned, almost identical to the one in the case at bar. The lower courts had sustained motions to dismiss, but the Supreme Court reversed, holding:
“The essential elements of the crime of perjury as defined in 18 USC § 1621 are (1) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing. The indictments allege that the subcommittee of the Senate was a competent tribunal, pursuing matters properly before it, that in such proceeding it was authorized by a law of the United States to administer oaths, and that each defendant duly took an oath before such competent tribunal and wil-fully testified falsely as to material facts.
“. . . Therefore, all the essential elements of the offense of perjury were alleged.
“The indictments were sufficient, and the dismissal thereof was error.”
Manifestly, that which one does not believe to be true is false insofar as the person making such a statement is concerned, and obviously contravenes his oath to speak truthfully. That, I believe, is the gist of the offense. In fact, contrary to their holding, my associates seem to agree this is so, stating:
“. . . the truly essential element of false swearing is that the declar-ant’s statement under oath be false, i.e., contrary to his oath.” [Emphasis supplied.]
Therefore, I am unable to join in overturning accused’s conviction for false swearing.
Even more difficult for me to accept, however, is the Court’s reversal of the *764larceny finding. Particularly is that so in view of the fact that accused contended in his petition that the evidence vyas legally insufficient to support that finding and we declined to grant review of that assignment of error. Certainly it is somewhat surprising that my associates, having previously rejected the argument, now and without the benefit of either briefs or argument, set aside this conviction. And their action is even more startling in view of the sound basis that exists in law to support the finding.
When all evidence adverse to an accused, and the permissible inferences therefrom, are ignored and only the evidence favorable to the defense is marshalled and set forth in its best light, I suppose a case can be made for reversing any conviction for want of proof. That, however, has never been and is not the proper measuring rod.
True it is that mere inactive presence at the scene of a crime will not support a conviction. In the case at bar, however, it was for the court members to decide whether they believe accused had told his companions not to steal the hubcaps. And, even were they to accept the exculpatory testimony that he had so admonished them, again it was the province of the triers of fact to determine whether the accused’s words were in a serious vein and whether his actions belied his words. Apart from the testimony of those implicated in the larceny, the record contains evidence from a sergeant who witnessed the theft and watched the accused and his companions drive off in his ear with the .loot. The accused was apprised of the theft and kept his car available and in readiness to drive away with the loot. Also, it is of interest that the fruit of the larceny was hubcaps, which his car lacked, and which, inasmuch as they were taken from another Buiek automobile, could eliminate that void and save the accused the cost of replacements. Furthermore, it is to be noted that, when questioned about his knowledge of the matter, accused lied, saying he knew nothing about it, thus evidencing a guilty mind. With the record in that posture, I am unable to agree that the evidence will support no more than a finding of inactive presence. Quite to the contrary, I am sure the court-martial could, under proper instructions, fairly conclude that accused consciously shared in the criminal intent and encouraged the theft.
There is, however, yet another ground upon which accused’s participation as a principal may be rested. He was the commanding officer of the men who admittedly were guilty, and he could not but have been aware of the commission of the crime. Nevertheless, he took no measures to prevent its perpetration, he failed to apprehend the thieves, and he did not report the offense. Rather, he transported the hubcaps, which were stolen for his benefit, away from the scene of the theft and sought to mislead the investigator by false statements.
Article 7 (b), Uniform Code of Military Justice, 10 USC § 807, provides that all persons authorized under regulations to apprehend individuals subject to military law “may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Pursuant ta paragraph 19a, Manual for Courts-Martial, United States, 1951, all officers are vested with the authority to apprehend. Under those circumstances, as I understand the law, the court-martial could properly have convicted accused of larceny as a principal.
Miller, Criminal Law (Hornbook Series) (1934), states the rule as follows in § 75(b), at page 231:
“. . . Mere presence and neglect to endeavor to prevent a felony will not of itself make one a principal . . . unless there be a duty upon the part of the accused to interfere and attempt to prevent the felony; and this is true even though the person so present is to be benefited by the deed.”
That same concept is set forth in paragraph 156, Manual for Courts-Martial,, United States, 1951, as follows:
“While merely witnessing a crime without intervention does not make *765a person a party to its commission, if he had a duty to interfere and his noninterference was designed by him to operate and did operate as an encouragement to or protection of the perpetrator, he is a principal.”
And that principal was long ago approved in Federal case law. See, for example, Powell v United States, 2 F2d 47 (CA 4th Cir) (1924). There, a train conductor’s conviction under the theory of aider and abettor for transporting intoxicating beverages in violation of the Volstead Act was upheld. Significantly, the court made reference to the fact that as a conductor he should have seen the laws were observed on his train, “especially as by the law of the state he was clothed with powers of a special policeman, with full authority to make arrests for offenses committed in his presence.”
Manifestly, there was adequate basis upon which the court-martial could predicate a finding that accused aided and abetted the larceny of the hubcaps. And, indeed, the law officer gave a full and accurate charge on the law of aider and abettor, including a specific instruction that, “Mere presence at the scene of a crime is not enough to constitute the person who is merely present an aider and an abettor.” No claim is advanced that he misstated the law. The finders of fact at all levels have, under the correct test, been convinced of accused’s guilt by the evidence and permissible inferences flowing therefrom, and for the reasons I have stated, I conclude it is ample to support accused’s conviction. Accordingly, I believe it is improper to dismiss the larceny offense.
I would affirm the decision of the board of review.