(dissenting):
The board of review dismissed specifications 2 and 3 on the ground the evidence relating to those specifications bore a marked similarity to “the factual situation in United States v Groom . . . [12 USCMA 11, 30 CMR 11], where the Court of Military Appeals held that such evidence was insufficient in law” to establish dishonorable conduct on the part of the accused. (Emphasis supplied.) The comparison seems to indicate that the board of review dismissed these specifications because the evidence was insufficient in law to support them. However, the majority’s answer to the other certified questions makes it unnecessary for me to do more than express my reservations about this aspect of the case. As to the question of whether there is sufficient evidence to require an instruction on the effect of a reasonable belief there were sufficient funds on deposit to pay the checks on presentment, I disagree with my brothers.
An instruction on the effect of a theory of defense is required if “the record of trial contains sufficient credible evidence raising an issue for the court-martial’s consideration.” United States v Farris, 9 USCMA 499, 501, 26 CMR 279. See also United States v Gurevich, 7 USCMA 203, 21 CMR 329. The Government contends that the accused’s testimony is so “characterized by a series of patent inconsistences” as to raise no issue of mistake of fact justifying an instruction. See United States v Bistram, 11 USCMA 345, 29 CMR 161.
At trial, the defense attempted to show that the accused issued the checks, which became the subject of the charges, in the honest belief that a friend, Kerry A. Titze, had previously deposited $200.00 to his account, which amount was sufficient to pay the checks. Titze was not called as a defense witness. Two other witnesses were called to corroborate the accused. Miss Constance Chestnut said she was present at a conversation between Titze and the accused, in which Titze said he had deposited $200.00 to the accused’s account. The other witness said he heard Titze tell the accused he “would put money in . . . [the accused’s] account.” (Emphasis supplied.) Neither witness testified to the date of the respective conversations ; and it does not appear that they testified about the same conversation. The accused’s own testimony compellingly establishes that if these conversations took place, they were Had after the checks were presented to, and refused payment by, the bank.
*623Disregarding the September 1961 check, which was the subject of specification 1, the accused was charged with issuing four worthless checks. The first check for $10.00 was issued to the Forbes Air Force Base Exchange on January 26, 1962; the second, also for $10.00, was issued on January 29, to the Exchange; the third for $65.00 was issued to Logan’s Service Station on January 30; and the fourth for $20.00 was issued to Lester E. Reiber on January 30. The accused admitted he knew that before these checks were issued he had reduced his bank account to “almost a Zero balance.” He contended, however, that “the checks were written” on the “basis” of the $200.00 deposited by Titze.
According to accused’s testimony, he had become “involved” with Titze about January 15. They were roommates and friends, but were not “real close.” “Once or twice” the accused had doubted Titze’s truthfulness, but Titze “was always able to talk his way out of it.” Titze purportedly told the accused he had sold some real property in Nebraska for which he received $8,500.00. He said he deposited this amount to his account in the Merchants National Bank, the same bank in which the accused had an account. Titze was “notorious” for writing bad checks, which the accused knew, so he purportedly arranged with the accused to have the accused write checks for him against money which Titze would deposit in the accused’s account. One day Titze told the accused he had deposited $100.00. The accused knew the bank issued a deposit slip for each deposit, so he asked Titze for the slip. Titze told him he had not received one because he “just transferred the money” from his account to the accused’s. The next day, Titze told the accused he had deposited another $100.00 in the accused’s account. As noted above, the accused purported to write all the cheeks “on the basis of this $200.00.” However, other testimony by the accused demolishes this contention, and eliminates the foundation of any claim of good faith.
The accused said that when he gave Mr. Logan the $65.00 check on January 30, Titze was present, and he told Logan that “he [Titze] had deposited the money that day.”1 Since the accused purported to issue the checks on the two deposits, the statement attributed to Titze set the date of the alleged second deposit as January 30. Yet, the first check was issued on January 26. The accused’s testimony on this crucial point is so inconsistent with the admitted facts as to stamp his claim of good faith as “inherently unbelievable.” United States v Bistram, supra, page 347. I conclude, therefore, that while the board of review erred in giving improper effect to the accused’s post-presentment conduct, it was correct in its conclusion that the evidence raises no issue requiring an instruction on honest belief. I would answer the third question in the affirmative, and affirm the decision of the board of review.
Logan’s testimony on the point would support an inference that Titze did not make the statement attributed to him by the accused. His testimony on cross-examination is as follows:
“Q. Now you stated that there was someone else with Airman Remele when he gave you this check, did you not?
“A. Yes, sir.
“Q. Did this other person tell you anything with regard to money in the bank?
A. A day or two later he came in and said he was going to take care of this check.”