Opinion of the Court
Homer Ferguson, Judge:Tried by special court-martial, the accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and sentenced to bad-conduct discharge, forfeiture of $40.00 per month for six months, and confinement at hard labor for six months. With some reduction in the sentence, intermediate appellate authorities affirmed, and we granted accused’s petition for review on the question whether the president of the court-martial should have instructed its members on the defense of mistake of fact.
The accused allegedly stole three tires, three inner tubes, three wheels, and four hub caps, property of Acting Sergeant Jake Ledlow, Jr. The evidence adduced by the Government tends to establish that he drove with two other Marines, Phillips and Self, to a parking lot near the Main Gate of their station. The men were riding in Phillips’ car. Something was said about “Somebody needed a tire.” The three men pushed a Chevrolet belonging to Sergeant Ledlow to the end of the lot, and Self jacked it up. Phillips and the accused removed the tires and wheels and placed them in the back of Phillips’ car. Subsequently, the items were mounted on Phillips’ vehicle, and Phillips’ tires were left with a friend of Self’s.
Sergeant Ledlow gave no one permission to remove the tires and wheels from his car.
The accused appeared as a witness in his own behalf. He admitted accompanying Self and Phillips to the parking lot on the evening in question, after Self had borrowed a jack “to fix a tire on his car.” He denied assisting in any manner in the removal of the tires, hubcaps, and wheels, and stated that he “thought it was Self’s car.” When asked whether he had reported the incident to any military policeman, the accused replied that he “didn’t know they were stealing any tires.” Self had previously told him that he drove a Chevrolet.
In a pretrial statement introduced by the prosecution in rebuttal, it was shown that the accused was aware that “Self told some people . . . that he had stripped down cars before out side of the gate.” The accused resumed the stand as a witness and declared that he had, several months prior to the incident, heard that Self had boasted of “stripping” cars, but that he had not believed him.
Following arguments by counsel, the president delivered his instructions to the court. They extended to the elements of larceny and the lesser offense of wrongful appropriation, as well as certain other rules to be applied in measuring the evidence. However, he nowhere adverted to the defense of mistake of fact.
From the evidence in this record, it is clear that the accused consistently denied knowledge that a theft was taking place and asserted that he believed the car from which the tires were being removed belonged to Self. While' *89his testimony is in many respects inconsistent with that of the prosecution witnesses, it is in nowise inherently incredible. It, therefore, is sufficient to place in issue the defense of honest mistake of fact. United States v Bistram, 11 USCMA 345, 29 CMR 161; United States v Holder, 7 USCMA 213, 22 CMR 3. Accordingly, the president was obligated to instruct the members of the court-martial with respect to that doctrine. United States v Rowan, 4 USCMA 430, 16 CMR 4; United States v Farris, 9 USCMA 499, 26 CMR 279. His failure to do so was prejudicial error.
The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Navy. A rehearing may be ordered.