(dissenting):
I dissent.
Under the rationale of the principal opinion, official mail retains its characterization as mail matter until some final action is taken with respect to its contents. I call attention to the fact that, although most military mail is directed to a particular commanding of-*312íicer, it never comes within his manual possession. Rather, it is opened and distributed to appropriate staff agencies for necessary action, and replies are sent out by those with delegated authority to sign on the commander’s behalf. Yet, under my brothers reasoning, these letters will remain mail matter until they have been circulated, needed action has been taken, and the correspondence filed. I do not understand such to be the law, and I suggest that the letters in this case ceased to be mail matter when the accused received and opened them on behalf of his superior.
Tried by general court-martial, the accused was found guilty of two specifications of wrongfully taking separate letters, addressed to his commanding officer, from official mail channels before delivery to their addressee, with intent to obstruct correspondence, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934, and negligently destroying Government property by smoking in bed, in violation of Code, supra, Article 108, 10 USC § 908. He was sentenced to a bad-conduct discharge. Intermediate appellate authorities affirmed, and The Judge Advocate General of the Air Force certified to this Court the following questions :
“a. Does the evidence establish THAT THE LETTERS DESCRIBED IN THE SPECIFICATIONS OF CHARGE II WERE IN OFFICIAL MILITARY MAIL CHANNELS AT THE TIME THEY WERE TAKEN BY THE ACCUSED ?
“b. If the first question is answered IN THE AFFIRMATIVE, DOES THE EVIDENCE ESTABLISH THAT THE OFFENSES COMMITTED BY THE ACCUSED WERE THE TAKING OF MAIL MATTER BEFORE DELIVERY TO THE ADDRESSEE WITH DESIGN TO OBSTRUCT THE CORRESPONDENCE OF THE ADDRESSEE IN VIOLATION OF THE LAWS AND REGULATIONS FOR THE PROTECTION OF THE SANCTITY OF THE MAILS?
“c. If the second question is ANSWERED IN THE NEGATIVE, MAY ANY LESSER OFFENSES BE AFFIRMED UNDER THE PLEADINGS AND THE EVIDENCE, AND, IF SO, WHAT’ IS THE MAXIMUM PUNISHMENT?”
As Judge Latimer notes, the issues before us concern only the mail offenses and, in my view, the answer to the first question suffices to dispose of the case.
Accused was the squadron first sergeant. As such, he had authority to receive, open, evaluate, and make necessary distribution of official mail. His duties expressly included such handling of mail directed to his commanding officer. If the letters thus opened and examined required action by the commander personally, he was required to route them to his superior.
The two letters in question were delivered to the accused in his capacity as first sergeant. Properly exercising his authority, he opened them and discovered their contents related to his overdue debts. Rather than deliver them to his commander, he placed the letters in his desk. The commanding officer later discovered that he should have received the missives, and subsequent inquiries disclosed the accused’s behavior.
From the foregoing, it will be seen that the question before us is simply whether these two letters retained their characterization as mail matter after they had been delivered to the accused in his capacity as first sergeant and were opened by him pursuant to the authority conferred upon him by the addressee. As noted above, I am certain they had arrived at their final resting place and were no longer entitled to specialized protection as part of the mails.
In United States v Manausa, 12 USCMA 37, 30 CMR 37, we were confronted with a substantially similar situation. There, the accused was authorized by the first sergeant to pick up the official mail at the local mail room and deliver it to the orderly room. At the same time, the first sergeant gave the accused written authority to obtain delivery of his personal mail. He was charged with wrongfully and unlawfully opening the sergeant’s personal letters. We reversed *313the conviction and held that delivery of mail matter to the addressee or his authorized agent terminated its protection as postal items. Of the situation there depicted, we said, at page 41:
“. . . Under those circumstances, it appears that accused’s position with regard to Jewell’s personal mail was exactly that ascribed to him by the latter in his testimony — his agent. . . . Thus, it is apparent that Jewell must accept the responsibility for causing the letters to leave mail channels. While it is true the letters never physically reached the hands of the addressee, in this instance the control over the release of the mail by those charged with its delivery to the addressee personally, flowed from Jewell, not from the custodians of the mail. That, we believe, requires a finding that the letters were delivered to the person to whom they were addressed within the meaning of the statute which prohibits opening or interfering with letters that have been in mail channels before delivery to the person to whom they were . directed.” [Emphasis supplied.]
In the case now before us, the accused, unlike Manausa, is not a person charged with the duty of picking up the mail and delivering it to the orderly room. Rather, he occupies the position of the commanding officer’s designated representative to receive that mail from the orderly who served as the conduit for its delivery. And, if the individual making the mail run to the orderly room was not involved in the handling of mail matter, as we held in United States v Manausa, supra, the person charged with the duty of receiving, opening, and routing all letters so delivered surely cannot be held to function as a part of the< military postal apparatus. To the contrary, it would seem clear beyond cavil that his desk represents the terminal point of all mail addressed to his commander and that, having reached that destination, the extraordinary protections accorded it under the law ended.
The principal opinion, however, attempts to distinguish our holding in Manausa, supra, on two bases. First, it points out that we there dealt with personal mail and here official mail is involved. The truth of this factual distinction must be admitted, but a scrutiny of the language in the Manausa opinions makes it apparent that the character of the items involved played no part in that decision. We spoke of personal mail there because that accused wrongfully opened a personal letter. We deal with official mail here because this accused interfered with the delivery of official letters. The real reason for the reversal of Manausa’s conviction is simply the conclusion of a majority of the Court that he was the first sergeant’s authorized agent for the purpose of picking up mail. No manner of post-publication discussion can alter this truth.
The second basic distinction between this case and United States v Manausa, supra, is said to be accused’s position as “an official public agent” as opposed to Manausa’s position as a mere “private messenger.” Reference is then made to language in Whiteside v United States, 93 US 247, 23 L ed 882 (1876), regarding the principle that acts of a Government agent outside the scope of his authority do not bind the United States. Again, I believe the reasoning of the author Judge goes astray in concluding that this consideration is relevant here.
If accused is to be characterized as an official agent for receiving mail, it must also be admitted that he had the actual authority to receive, open, evaluate, and retransmit letters such -as are here involved. Thus, he received and opened the letter pursuant to the performance of his duties. If what we said in Manausa, supra, is correct and if Judge Latimer’s subsidiary reasoning in the principal opinion is proper, this terminated the status of the letters as mail matter and made them no more than ordinary correspondence. When the accused subsequently overreached his authority and secreted the letters in his desk, such action could not have the nunc pro tunc effect of again making the letters mail matter, Yet, that is *314precisely the result to which the principal opinion leads.
Moreover, any attempt to predicate accused’s criminal liability upon the artificial doctrine that acts beyond his actual authority did not bind the Government totally overlooks the fact that he had such authority with respect to mail. Indeed, the principal opinion so states, for it declares that he was empowered to receive the mail, to open it, and to deal with its contents. That is precisely what he did in this case, for his offense was obviously not committed until he had completed such actions and determined upon the concealment which gave rise to the charges against him. In short, the entire premise misses the point, i. e., that the issue before us involves only whether the letters ceased to be mail matter upon delivery to the accused. An inquiry into the accused’s apparent authority as opposed to his actual authority to act on behalf of the Government simply has no bearing on this question.
Finally, I point out that the accused’s status with respect to the handling of the letters was precisely the same as that of an office manager for a corporation or a secretary for a law firm. If such be empowered to open mail, scrutinize its contents, and route it to the appropriate corporate official or law partner when it is addressed to the company or firm, can it seriously be contended that the situation is the same as “that of a regular postal clerk who opens and peers in a mailbag and ascertains the true addressees to expedite delivery”? The question furnishes its own answer and, completely aside from our decision in United States v Ma-nausa, supra, it would seem that the only logical conclusion which can be drawn from the record before us is that the letters left mail channels when they were delivered to the accused.
The situation is not unlike those cases which involve lawful delivery of mail to an errand boy or letters addressed to a named individual “in care of” the actual recipient. In such instances, the errand boy and the recipient who tampered with these items were held guiltless of mail offenses. United States v Driscoll, Fed Case No. 14,994; United States v Mulvaney, Fed Case No. 15,833; cf. Huebner v United States, 28 F2d 929 (CA 6th Cir) (1928), wherein it was held that removal of a letter from a pasteboard box maintained on private corporate premises for the receipt of incoming mail did not constitute a postal offense. Here, the letters left military postal hands when they were received by the accused. Nothing remained to be done with them except internal routing and acting upon their contents. Accordingly, it seems clear that they should not be afforded the benefit of protections designed only to safeguard the sanctity of the mails. United States v Trosper, 127 Fed 476 (SD Calif) (1904); United States v Peoples, 7 USCMA 534, 22 CMR 324; United States v Thurman, 10 USCMA 377, 27 CMR 451. I would, therefore, answer the first certified question in the negative.
The action which I deem proper with respect to the first issue eliminates any necessity to answer the second certified question. With respect to the third, it is obvious that under the pleadings, evidence, and instructions in this record, no lesser included offense can be affirmed. See United States v Thurman, supra, and United States v Manausa, supra. Whether the accused, for his conduct, may now be charged with and convicted of some other crime is a purely hypothetical inquiry and we should give no advisory opinion with respect thereto. United States v Bedgood, 12 USCMA 16, 30 CMR 16; United States v Higbie, 12 USCMA 298, 30 CMR 298. My views on these subjects do not, therefore, appear in this opinion.
I would reverse the decision of the board of review and order the mail charges dismissed. In view of the minor nature of the offense charged as a violation of Code, supra, Article 108, I would also direct a rehearing on the sentence.