(dissenting):
I dissent.
This decision reverses accused’s conviction but establishes no law, for, as the reader will note, my associates predicate their respective conclusions on different theories. Since I am unable to accept the divergent approach of either of my brothers, and because I find no infirmity in the findings or sentence, I am constrained to dissent.
In my view, the principal opinion misapplies the doctrine of mistake of fact. In certain eases which involve a specific intent, an honest mistake of fact is a defense for it negates a criminal state of mind. In larceny, the defense is recognized for when a person believes he is taking property rightfully, he does not intend to deprive the owner of his property. But that doctrine presupposes that the person asserting the defense actually took the property because he could not take mistakenly if he did not take at all.
In the case at bar, the accused while a witness in his own behalf denied taking any part in the criminal venture. According to his testimony, he was an innocent bystander. At no time did he ever advance the theory that he aided the other two offenders under the mistaken belief that the automobile accessories belonged to one of them. At best he asserted he was only an onlooker to what he believed was an innocent transaction.
Under that posture of the evidence, I fail to understand why a president of a special court is saddled with the responsibility of instructing sua sponte on the defense of mistake of fact. When accused testified he did not take property, the president of the court could not reject that evidence, assume a contrary position, and instruct on a hypothesis fitted to his own assumed facts. That would be suggesting to the court members that they disbelieve the sworn testimony of the accused and decide the case on a theory repudiated by him.
As to the rationale relied upon for reversal by the Chief Judge in his separate opinion, I merely point out that the Government’s evidence showed accused to be as active a participant in removing and stealing the accessories from the car as were the other two culprits. He, on the other hand, denied having taken any part in stripping the automobile and testified that although present in the general vicinity, he was not even aware a crime was being committed. No evidence indicates, nor did anyone suggest, that accused was a lookout, or that he otherwise advised, facilitated or encouraged illegal activity by his companions. If he was an aider and abettor then we have all three participants in the same category, and there is a theft without a principal offender. Accordingly, I am quite unable to perceive wherein the law of aider and abettor is involved in this case. And apparently I am not alone *90in my bewilderment, for this is the first time such a theory has been advanced. I can well understand why it was not advanced at trial, for defense counsel would not desire an instruction on a theory which would broaden the Government’s chances for conviction. In fact, had a charge on aider and abettor been given, appellate defense counsel would doubtless now contend — and not without considerable merit, in light of the posture of the evidence — that the instruction constituted error requiring reversal.
We have repeatedly stated that instructions are not required on theories' not raised reasonably by the evidence.;' In the case at bar, the testimony upon which the instructions had to be predicated boiled down to the simple issue of whether the accused was a true principal in the theft. The Government witnesses testified he was, and he contradicted their testimony. Accordingly, I find that the instructions adequately informed the court on all issues raised reasonably by the plea and the evidence.
I would affirm the decision of the board of review.