(concurring in the result) :
I concur in the result reached by Judge Ferguson; however, I believe it necessary to express some different reasons for reaching that result.
I do not believe that the inclusion of the word “withholding,” in the context given in the law officer’s instructions, was error prejudicial to the substantial rights of the accused. United States v Nix, 11 USCMA 691, 29 CMR 507; United States v Smith, 11 USCMA 321, 29 CMR 137; United States v Lane, 9 USCMA 369, 26 CMR 149. Neither do I believe this case identical to United States v Roberson, 12 USCMA 719, 31 CMR 305, wherein the instructions on the inferences to be drawn from the possession of recently stolen property were given but were unduly circumscribed. But I do agree as to the desirability of tailoring instructions sufficiently to affirmatively submit the respective theories of Government and defense. United States v Smith, 13 USCMA 471, 33 CMR 3.
This view does not place upon the law officer in every case, and under all circumstances, the burden of, sua sponte, elaborating upon minimal instructions in that regard. In some cases, absent a defense request for amplification or elaboration, such instructions may be deemed adequate. United States v Soukup, 2 USCMA 141, 7 CMR 17; United States v Felton, 2 USCMA 630, 10 CMR 128; United States v Phillips, 3 USCMA 137, 11 CMR 137; United States v Johnson, 3 USCMA 447, 13 CMR 3; United States v Kloh, 10 USCMA 329, 27 CMR 403. And, in the case at bar, individual defense counsel *640made no effort to secure amplification or clarification, and apparently was satisfied with the instructions on this phase of the matter. However, it does appear to me that the facts in this particular case required the law officer to include in his instructions the exculpatory nature of the accused’s explanation of the possession of property recently stolen. The Government relied upon appellant’s possession of recently stolen property to sustain its charge of larceny, and the instructions were minimal, with no instruction being given as to the inferences permissible therefrom. The testimony of the appellant and his witness Green, as to the manner in which appellant came into possession of that property, was of such a nature as to have required that the court be fully instructed on the effect of accused’s explanation. Receiving stolen property, knowing the same to have been stolen, is not included in the offense of larceny. United States v McFarland, 8 USCMA 42, 23 CMR 266; United States v Roberson, supra. And, the reasonable character of the explanation was for the determination of the court-martial, under proper instructions. As stated in Young v United States, 309 F2d 662 (CA DC Cir) (1962) :
“. . . However implausible, unreliable or incredible only the jury had the right to make the evaluation of West’s testimony. The evidence of a simple assault [appellant was convicted of assault with intent to commit robbery] cannot be regarded as strong or convincing and perhaps the source could well be regarded as of dubious reliability, but the question of its weight and credibility was for the jury. . . . The ruling denying the lesser included offense instruction necessarily involved an appraisal of that evidence and West’s credibility by the District Judge but the trier cannot withdraw that appraisal from the jury. Kinard v United States, 68 App DC 250, 96 F2d 522 (1938). See also Stevenson v United States, 162 US 313, 323, 16 S Ct 839, 40 L ed 980 (1896).”