(concurring):
I concur.
In every criminal case the burden is upon the Government to establish the corpus delicti, and to establish it beyond a reasonable doubt. United States v Smith, 13 USCMA 105, 32 CMR 105. A court may not consider the confession or admission of an accused as evidence against him unless there is other evidence in the record that the offense had probably been committed by someone. Paragraph 140a, Manual for Courts-Martial, United States, 1951; United States v Smith, supra.
Of course, the nature of the burden of proof differs. In the latter case the evidence need show no more' than probability, while in the first instance mentioned the corpus delicti must be proven beyond a reasonable doubt. I concur in the holding that appellant’s statements were improperly admitted in evidence because of the lack of evidence in the record to show that the offense had probably been committed by somebody. However, I entertain serious doubt that this record contains any creditable evidence which could be construed as proof, beyond a reasonable doubt, that the offense was committed.
It is necessary to develop the evidence more fully in order to exemplify both issues.
Initially, it should be observed that the offenses are alleged to have been committed “at Wiesbaden Air Force Base Officers Club.” The proof corresponds with the allegation as to the situs of the transactions. However, from this it cannot be assumed that the poker game was, or was intended to be, one between “officers and gentlemen.” Without any reasonable dispute, the record reflects that the game was between a wholly nondescript group. The composition, at various times, ranged from an American former serviceman, then an expatriate residing in Germany, through sergeants of the United States Army to colonels, lieutenant colonels, *504majors, captains, and lieutenants of both the United States Army and Air Force, and a civilian employee of the Air Force of the grade GS-9, later a GS-11. The prosecution showed that the expatriate “describes himself as a professional gambler.” The prosecution also showed that he resided, at the time of trial, at the “Mainz County Jail.” The law officer sustained a defense objection to the last question and instructed the court-martial in the following language: “The court will disregard the reference to the association with Wooten [the expatriate] and the fact that he might now be in the Mainz County Jail.” The instruction contained nothing as to disregarding the statement, “describes himself as a professional gambler.”
In this game the pots ran from $50.00, $100.00, an occasional pot I would say up to $300.00. On rare occasions we’d have pots of $500.00. I have heard of pots exceeding $500.00.” “On rare occasions, very rare occasions, the pots could reach a thousand dollars, but that would be the rare occasion.” There is a clear implication that the investigation' of poker games at Wies-baden Air Force Base Officers’ Club was, at least partially, triggered by resentment which arose when one Sergeant First Class Roosevelt Glass, United States Army, a negro, won an especially large pot at the above-mentioned Air Force Officers’ Club.
Unless I have been grossly misled, or am totally naive, neither colonels, lieutenant colonels, majors, captains, lieutenants, or civil service employees of the grades of GS-9 or GS-11, are in an income bracket permitting wagers of this level. Civilians will never understand the military logic which sustains the dismissal of appellant, a captain, for gambling with a first sergeant, while condoning gambling between field grade officers and lieutenants. The effect upon discipline seems virtually identical. The evidence is clear that this was not a friendly, gentlemanly game of innocent penny-ante poker, but a game for high stakes. There was little or no inquiry as to the military status of the participants. All with $100.00 seem to have been welcome.
The occasion for these offense was afforded by Air Force approval or con-donation of such a game. The major in charge of the Wiesbaden Air Force Officers’ Club'was an actual participant in the game out of which the offense before us arises. The major was not a witness in this case, having conveniently retired and returned to the United States. At the time of trial he was statod to be employed as manager of an Air Force Officers’ Club in the United States.
This record indicates that regular participants in this weekly poker game were on the constant alert for evidence of cheating. A number of incidents are referred to and others are detailed. There are two occasions upon which one of the participants testified he had suspected cheating but none of the other participants concurred. It is made clear that possible cheating was accepted as one of the risks assumed upon entering this game.
It is of prime importance to examine testimony which was produced before the court-martial on a specification alleging that the appellant cheated at poker in the same club on an earlier occasion, and of which the appellant was found not guilty. The evidence, with reference to the earlier incident, shows that Major Stallings suspected both appellant and Lieutenant Sanders of cheating by collaboration between them. Lieutenant Sanders testified that he knew of the suspicion which had fallen upon him in connection with that incident. Ironically, the evidence offered on the specification of which appellant was acquitted was equally incriminating as to both Sanders and appellant. Appellant appeared as the accused and Sanders as the principal witness against him.
In addition to the deviations between the testimony at the trial and testimony at the Article 32 hearing, pointed out in the principal opinion, there are other conflicts. Among others, in his original testimony, Nelson stated, unequivocally, that appellant, when attempting to re-enter the game, used the word “cheat” in describing his previous conduct. When recalled at the request of *505a court member, and in answer to questions by the law officer, testified as follows :
“Q: That is important. Did he say, ‘if I don’t cheat,’ or—
“A: I am not certain of the exact words.”
'The exact words were of paramount importance, and Major Heiser, to whom accused made his statement, never quoted appellant as having used the word “cheat.”
The witnesses varied in their versions of the content of the statement made by appellant when attempting to re-enter the game. All of the versions are subject to different constructions, some constructions would render them incriminating and others not.
We now come to a consideration of whether the evidence in the record is sufficient to show that the offense had probably been committed by somebody. The uncontroverted evidence shows that Lieutenant Sanders procured the cards used in the game and brought them to the club. There is no evidence that any participant, other than Sanders, had access to the cards prior to the game. There is no evidence that the deck was counted when it was introduced into the game. While a participant in other games testified that a sealed deck was used in other games of the group, there is no evidence this deck was sealed. And even though poker players might regard a seal on a deck of cards as sufficient to denote that the content is full and correct, we doubt the efficacy of a seal to import guilt of a criminal offense. True the missing cards were not found in the room, but there is no evidence they were ever in the room. These omissions leave nothing but speculation and suspicion that the offense had probably been committed by somebody and there is a total lack of evidence to that effect.
Practically all of the incriminating evidence implicating appellant was given by Lieutenant Sanders. Lieutenant Sanders knew he had been previously suspected of cheating. When the question of the shortage of two cards was raised, Lieutenant Sanders acted “simultaneously” in his accusations of appellant. Lieutenant Sanders was the junior officer present. Notwithstanding, he immediately gave orders to his superior officers to stand up and empty their pockets. And Sanders, a lieutenant, grabbed appellant, a captain, by the wrist and grabbed appellant’s money from the table. He, with the aid of the GS-9 (or GS-11) civilian employee, engaged in an unseemly brawl- with appellant, during which all three fell to the floor. We should not overlook the fact that Sanders admitted his attempt, along with Nelson, to extort $500.00 from appellant as his price for failing to report the incident. True, Sanders attempted to pass this off as a “mistake of judgment.” However, the extortion attempt was two days after the incident, permitting adequate opportunity for reflection. At an earlier time Sanders had insisted the money was not important as a principle was involved.
This was a court-martial by the Army of an Army captain for conduct alleged to have occurred in an Air Force Club and affecting Air Force officers. It seems strange that Lieutenant Sanders should have been assigned to Morocco for temporary duty on November 16th, and this court-martial convened on November 30th. The urgency of such an assignment of a junior officer assigned to “USAF Passenger Reservation Service” is not perceived. I commend the law officer for his perspicacity in rejecting Sanders’ deposition and continuing the trial for three weeks to secure his appearance in person.
We have no alternative but to reverse the action of the board of review on this specification and to direct that the same be dismissed. Article 67 (e), Uniform Code of Military Justice, 10 USC § 867.