(dissenting):
I dissent.
Much has been written about the use of conjunctive-disjunctive phrases in pleadings, and on that score I have no inclination to dispute the criticism of my brothers. However, the point at issue is not whether the questionable language should have been used but rather, because it was employed, did the specification state an offense?
In order better to develop my views, I call attention to the fact that every essential element of larceny was alleged, and the only uncertainty appearing on the face of this specification arises in connection with the description of the property alleged to have been stolen. My associates say that certainty in this regard is required and that when the pleader fails to identify the particular nature of the property, the allegations are insufficient to apprise the accused of the offense with which he is charged and protect him from a second prosecution for the same offense. It is that concept with which I disagree.
While the Court quotes a statement found in United States v Cruikshank, 92 US 542, 23 L ed 588 (1876) — and parenthetically I mention the author Justice was merely illustrating a point —in recent years the strictness of common law pleadings has been relaxed, and in United States v Sell, 3 USCMA 202, 11 CMR 202; United States v Karl, 3 USCMA 427, 12 CMR 183; and United States v Mamaluy, 10 USCMA 102, 27 CMR 176, we stated a principle we believed would meet minimal standards in charging an offense. In those cases we said the true test of the sufficiency of a specification is not whether it could have been made more definite and certain but whether it contained the elements of the offense intended to be charged and sufficiently apprised the accused of what he must be prepared to meet; and in case any other proceedings were taken against him for a similar- offense, whether the record shows with accuracy to what extent he could plead a former conviction or acquittal. In order to determine whether this specification is sufficient to meet that test, it is appropriate to consider all the facts alleged and those necessarily included by fair implication.
The original specification alleged the crime of larceny and the time, place, value, ownership, intent, and taking were stated with certainty. True it is that the res was described as “money and/or property” but, when the accused was interrogated about the desirability of asking for any appropriate relief, his counsel announced that no motions were to be made. Apparently the defense understood fully the crime involved property which could be the subject of larceny but, more important, when the time for plea was reached, defense counsel stated that the accused pleaded not guilty to the specification but guilty to the lesser included offense of wrongful appropriation. The accused followed this announcement by personally pleading guilty to the less *256serious crime. From the tactics employed by the defense, even if I were to assume uncertainty in the allgations of larceny, when the accused affirmatively moved forward to acknowledge his guilt of a lesser offense than the one charged, it must be assumed he was well aware of all the essentials of the crime to which he was confessing. At least I am convinced there is no fair risk he did not understand the nature and character of the accusation or that he could have been prejudiced or embarrassed in conducting his defense.
I have no doubt about the proposition that when an element of the offense is alleged in a conjunctive-disjunctive form, the precise nature of the offense may be in doubt. Had the pleader in this instance alleged the crime of larceny and/or unlawful appropriation, there would be an irreconcilable hostility as to the element of intent and the plea would not remove the doubt. But that situation is not present in the case at bar. Furthermore, some charges may be so general in their descriptive phrases that an accused person can neither understand the gist of a charge nor fairly prepare his defense. But again in this instance we are not faced with that situation. As previously mentioned, the accused was first charged with unlawfully taking property with intent permanently to deprive the Government of its use and benefits. He, in essence, replied that his possession of the property was unlawful but his intent was only to deprive the Government of its enjoyment temporarily. Therefore, when interpreted in the light most favorable to accused, he pleaded guilty to unlawfully appropriating some form of property belonging to the Government of the value of $755.51. It had to be pei-sonal property for I suspect an accused would have difficulty in asporting real property. Obviously, there are many varieties of personal property, but the areas are narrowed by other allegations of the specification which may be considered without resort to conjecture. Certainly, the illustrations used by the author Judge to show how speculation must be indulged in are irrelevant and extreme indeed, for even if it were possible for a seaman to steal a Captain’s gig while aboard the mother ship, the taking would not extend over a period of three months. Neither do I find persuasion in the contention that if that offense were possible, the Captain would be an accuser. I suspect his duty to protect that particular craft is no different than his obligation to watch over the landing boats used to carry other personnel to shore. Last, with regard to the suggestion that accused may possibly have utilized some service which cannot be the subject of larceny, the authority cited merely stands for the proposition that services are not property. However, the allegations of this specification touch only on the latter.
It must be conceded that nowhere in the record can the nature of the res be found. But from the allegations of the specification I do find that the property disappeared over a period of three months and from that, together with the allegation of a fixed value in dollars and cents, I assume the unlawful appropriation may have been bottomed on the theory of embezzlement. When that is the form of the offense, it is sometimes difficult to establish precisely the nature of the property involved. By way of illustration, the person in charge of a ship’s store might sell the property and convert the cash or he could misappropriate the merchandise. Books and records might not reflect the true transaction and in that event the accused alone would know the illegal method of operation. That of itself may not be a complete answer to the question, but it does weaken the argument that an accused is not informed of the nature of the res particularly when, as here, he confesses to unlawfully appropriating property of a certain fixed vlaue. Moreover, in the instant case, if prior to his plea of guilty the accused had the slightest doubt, he could have asked for further particulars.
The courts which have considered similar issues have reasoned that when a conjunctive-disjunctive phrase is used in alleging a crime, it is impossible to tell whether the accused is charged with doing all things con*257demned or only some of them. If we apply that rationale to this specification, we must find that the pleading charges accused with taking either money or property or the misappropriation of both. Property includes money and so, regardless of whether merchandise or cash was involved or if there was a commingling and both unlawfully appropriated, an offense would be stated. Had a bill of particulars been requested or had the accused elected to put the Government to its proof by a plea of not guilty, the record might have established the precise nature of the res involved. But, in the absence of some action by him at the trial level indicating he desired more particularized information, the Government is not required to plead all evidentiary details. While a guilty plea does not cure a fatally defective specification and render acts criminal which are not, duplicity cannot be raised for the first time on appeal. By this holding, exactness in pleading the nature of property taken is made indispensable. That rule I do not accept, for after an accused has confessed judicially that while aboard a United States vessel he unlawfully appropriated property of the United States of a value of $755.51, I find no good reason to reverse the findings and sentence because on appeal it is asserted for the first time he was not informed with specificity of what he had taken.
The arguments advanced to support the Court’s conclusion on former jeopardy are less than impressive. When this issue is considered on rationalistic grounds it should be concluded that the accused is benefited by the generalized allegations. He was charged with takings from January 1, 1960, to March 31, 1960, and he could assert this conviction to avoid a prosecution for the misappropriation of any property of the United States of America during that period and while aboard the designated ship. With the first specification covering all property, the accused is not only protected from a second prosecution for stealing such items as money, cigarettes or jewelry, he is given judicial immunity from any subsequent conviction for the taking of any variety of property.
For the foregoing reasons I would affirm the decision of the board of review.