(dissenting):
I dissent.
If we are authorized to weigh again the evidence in a record, judge the credibility of witnesses, and accord conclusive effect to the testimony of one witness over another, all the while disregarding precedents set in our former holdings, then I can agree that we may reject this accused’s defense of mistake and conclude that no instructions thereon were required. However, as has elsewhere been noted, we must take the record as we find it and limit ourselves to questions of law rather than the resolution of issues of fact. United States v Brand, 10 USCMA 437, 28 CMR 3; United States v O’Neal, 1 USCMA 138, 2 CMR 44. Nor do the iniquities which may result from departures from normal supply channels justify our judging of the accused’s story and its rejection out of hand, without regard to similar cases heretofore reversed. In my view, the record raises the issue of mistake and required instructions thereon by the president. Accordingly, I am unable to join either in my brothers’ rationale or their disposition of the case.
The accused was a cook in charge of a Navy galley. He was apprehended in possession of a box of meats, belonging to the United States, while leaving his station. Although he initially told conflicting stories to naval investigators, he subsequently averred in both a written pretrial statement and his trial *110testimony that he had traded meat to other naval personnel for paint and record books to be used in his galley. At the trial, he declared he was unaware that his participation in this “cumshaw deal” involved any wrongdoing and that he believed he was authorized to engage in such transactions in order to procure supplies not otherwise available. Other witnesses testified to the existence of this “swapping” process in the Navy and stated it was customarily employed to avoid supply deficiencies.
In my opinion, the foregoing evidence places in issue the question whether the accused operated under an honest and material mistake at the time he took the meat in question from his galley. Indeed, the circumstances are remarkably similar to those of United States v Thornton, 8 USCMA 446, 24 CMR 256. In that case, an Army lieutenant was charged with larceny and making false official statements. The larceny charge was based upon the accused’s successful scheme to obtain compensation for his overtime work as officer-in-charge of a hobby shop by inflating the payroll reports of his employees. Accused alleged that the plan had been suggested and specifically approved by his superior officer. Of the effect of this claim, we said, over Judge Latimer’s dissent:
“In reviewing the case, the board of review held that the ‘major factual issue’ was the accused’s explanation of his actions. Nevertheless, it concluded that the witness’ testimony was immaterial. On that point we reach a different conclusion. Under the evidence, the court-ma/rtial could have found that the accused honestly believed he was entitled to be paid for the services he performed in accordance with the adopted plan. ... If the court-martial so found, it would have been duty-bound to acquit the accused of larceny because of the absence of the required criminal intent.” [Emphasis supplied.] [United States v Thornton, supra, at page 449.]
Similarly, in United States v Hayes, 8 USCMA 627, 25 CMR 131, upon the accused claiming that he possessed no criminal intent when, as a finance clerk, he approved advance receipt of pay by a friend contrary to regulations, with the understanding that the “loan” of Government funds would be repaid by deductions from the friend’s pay, we reversed his conviction of larceny, again over Judge Latimer’s dissent, stating at page 629:
“Not every wrongful taking constitutes a violation of Article 121. See United States v Norris, 2 USCMA 236, 8 CMR 36. The intent to deprive the owner of his property, either permanently or temporarily, must include a mens rea. Therefore, the mere ‘borrowing’ of an article of property without the prior consent of the owner does not make out either of the offenses defined in Article 121. . . . According to the evidence, under proper instructions the court-martial here could have acquitted the accused because of the absence of any criminal intent.”
This principle was just reiterated by the Court in United States v Bridges, 12 USCMA 96, 30 CMR 96, decided this date, wherein the accused, charged with wrongful appropriation, took his victim’s car allegedly for the purpose of preventing the victim from driving it while intoxicated.
Measured by the foregoing cases, it is clear that the accused’s claim, that he did not believe his “swapping” of meat, in accordance with a customary practice, for needed supplies involved any wrongdoing, reasonably placed the defense of honest mistake in issue. Accordingly, appropriate instructions were required and the failure to give them was reversible error. United States v Thornton, supra; United States v Bridges, supra.
The principal opinion, however, attempts to negate the effect of the concepts set forth in United States v Thornton, United States v Hayes, and United States v Bridges, all supra, by reliance on United States v Miles, 11 USCMA 622, 29 CMR 438. While I also dissented in that case, I merely point out that Miles, supra, involved the *111providence of a guilty plea and may safely be distinguished from a cause in which, as here, the accused pleaded not guilty and placed in evidence sufficient circumstances to support a defense of mistake.
In sum, I suspect that the affirmance of this case is based both upon Judge Latimer’s disagreement with the cases noted above and a disinclination to accord credibility to the accused. As the former rationale has twice been rejected by myself and the Chief Judge and as the accused’s account cannot, under any view, be termed inherently incredible, I am unable to join my brothers in their conclusion that proper instructions on mistake were not required. Accordingly, I must record my disagreement with the disposition afforded this case.
I would reverse the decision of the board of review and order a rehearing.