(dissenting):
I dissent.
The principal opinion concludes that wrongful appropriation is a crime involving moral turpitude, and a conviction thereof is admissible in evidence in order to impeach the credibility of an accused who has elected to testify in his trial. I disagree and am of the view that introduction of Sergeant Keleher’s previous conviction for that offense, under the particular circumstances of this case, entitled the defense to have its motion for a mistrial granted.
I
The evidence presented to the court-martial a relatively simple issue of fact. The Government established that accused was the custodian of certain funds entrusted to his care; that demand was made upon him for an accounting ; that he could not produce the necessary monies; and other circumstances tending to indicate that he had criminally appropriated them to his own use. On the other hand, the accused, admitting that he had possession of the sum involved in his fiduciary capacity, declared that he had kept it in his quarters because of uncertainty as to the combination of the safe which he properly should have used. According to his testimony, the funds were apparently stolen from his room.
Thus, a clear factual question was presented for the court members. If, under the instructions of the law officer, they drew the permissive inferences for which the United States contended and accordingly rejected accused’s purported explanation of his inability to account for the monies entrusted to his care, it was their duty to reach the findings which, in fact, resulted. On the other hand, if they attached sufficient credibility to accused’s testimony concerning the loss to raise in their minds a reasonable doubt concerning his guilt, it was equally their responsibility to acquit him.
It was against this backdrop that trial counsel, over proper objection, succeeded in obtaining the admission in evidence of accused’s previous conviction for wrongful appropriation of more than $50.00, property of the Fort Bragg Fish and Wildlife Association, while serving as bookkeeper for that organization.
II
Acting pursuant to the authority conferred upon him under Uniform Code of Military Justice, Article 36, 10 USC § 836, the President has prescribed a rule of evidence which provides :
“A witness may be impeached by showing that he has been convicted by a civil or military court of a crime which involves moral turpitude or is such as otherwise to affect his credi*133bility.” [Manual for Courts-Martial, United States, 1951, paragraph 153b (2) (b).]
In United States v Moore, 5 USCMA 687, 18 CMR 311, this Court definitively examined the foregoing rule with particular reference to “the vagueness which . . . inheres in the phrase ‘moral turpitude.’ ” United States v Berthiaume, 5 USCMA 669, 679, 18 CMR 293, 303. Pointing out that there was “authoritative justification for the view that a felony necessarily involves moral turpitude” and that we entertained “no doubt that an offense serious enough to bear the stigma of a dishonorable discharge possesses the seriousness of felony, and as well bears a heavy content of moral turpitude,” the Court emphasized the importance of the imposable sentence under the Table of Maximum Punishments, Manual, supra, paragraph 127e, as a guiding principle in concluding whether an offense involved the ingredient necessary to its use for impeachment purposes. With unanimity, it was declared at page 696:
“It may be suggested that for the fluidity of the concept of ‘moral turpitude,’ we are substituting a series of rules based on the penalty imposable for an offense. Such a comment does not deter us, however — for we have no hesitation in adopting the quantum of punishment imposable as a rule-of-thumb for determining an offense’s gravity. After all, if there is aught to criminological theory, the punishment assessed against a crime mirrors well the public disapprobation of that offense. . . . Turpitude, too, may not inappropriately be deemed the obverse of the public disapprobation of the act involved. Further, a witness who previously had not been deterred from crime by a serious penalty, might well pay less heed than the average man to the penalties assigned for perjured testimony.” [Emphasis supplied.]
In United States v Gibson, 5 USCMA 699, 18 CMR 323, the Court, applying the tests which it had summarized in United States v Moore, supra, held that convictions of using disrespectful language and failure to obey a lawful order did not involve moral turpitude. It said, at page 703:
“. . . Disrespect and failure to obey are peculiarly military offenses, with no exact or approximate counterparts either in the moral or civil order under ordinary rules of interpretation. Moreover, the penalties provided for them by the Table of Maximum Punishments are insufficient to raise them to the level of felonies.” [Emphasis supplied.]
Turning again to the Manual, supra, it is to be noted that, with the single exception of the felony of wrongful appropriation of a motor vehicle, the maximum possible sentence for this offense — depending upon the value of the property involved — ranges from confinement at hard labor for three months and partial forfeitures for a like period to bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for six months, the latter limitation being applicable in the case of accused’s previous conviction. Table of Maximum Punishments, Manual, supra, paragraph 127c. And, with respect to the nature and degree of the punitive separation thus authorized, the Manual, supra, also notes that it is appropriate “as a punishment for bad conduct rather than as a punishment for serious offenses of either a civil or military nature.” (Emphasis supplied.) Manual for Courts-Martial, supra, paragraph 76a (7). On the other hand, the use of a dishonorable discharge is said to be reserved for offenses “usually recognized by the civil law as felonies” or involving “conditions of dishonor.” Manual, supra, paragraph 76a(6).
These considerations impel me to the conclusion that wrongful appropriation, as here involved, is not an offense involving moral turpitude, within the meaning of the rule as to use of prior convictions for impeachment purposes. Unknown as an offense at common law, it, too, has “no exact or approximate counterparts either in the moral or civil order.” United States v Gibson, supra; Clark and Marshall, A Treatise on the Law of Crimes, 6th ed, § 327. It was enacted by Congress as a part of a *134purposeful scheme to punish “ ‘offenses heretofore known as misappropriation, misapplication, joyriding, wrongful taking and using, and wrongful .conversion.’ ” United States v Norris, 2 USCMA 236, 239, 8 CMR 36, 39; Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1245. Appreciating the distinction between this delict and the crime of larceny, the Manual itself prescribes a punishment limited to that appropriate for “bad conduct rather than . . . for serious offenses.” Thus, as we noted in United States v Moore, supra, “the public disapprobation” of the offense is not such as to characterize it with that degree of reprehension required for attachment of the phrase “moral turpitude.” And this is, as recognized by the Manual’s limitations on its punishment, the military’s own view as to the crime’s minor nature.
Moreover, while it is difficult to assign a precise definition to the phrase “moral turpitude,” civil courts have generally held it to involve a grave infringement of the moral sentiment of the community or acts of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men and to society in general as distinguished from offenses which are merely malum prohibitum. In re Hawke, 63 NE2d 553, 557 (Ohio) (1945); State v McCarthy, 255 Wis 234, 38 NW2d 679 (1949); In re Boyd, 48 Cal 2d 69, 307 P2d 625 (1957); United States v Zimmerman, 71 F Supp 534 (ED Pa) (1947). Yet, in the instant case, the community involved, i.e., the armed forces, has characterized wrongful appropriation of property other than a motor vehicle to be nothing more than “bad conduct,” the maximum penalty for which cannot extend beyond imprisonment for six months and a bad-conduct discharge. It is an offense which normally would be within the jurisdictional limits of a special court-martial and, except for the Army’s practical elimination of the punitive discharge in such inferior judicial proceedings, this accused’s conviction would no doubt have been adjudged by that type of tribunal.
Such treatment of a crime hardly indicates that it is regarded by the military community as a grave breach of its moral code or that it is an offense stamped with the baseness, vileness, or depravity seemingly inherent in the term “moral turpitude.” Rather, as noted by defense counsel, it would seem to be safely within the category of a mere unauthorized use of another’s property or money, albeit characterized with the necessary criminal intent. Cf. United States v Hayes, 8 USCMA 627, 25 CMR 131. In short, I am convinced that the crime of wrongful appropriation, generally speaking, is an offense malum prohibitum and, as such, does not involve moral turpitude.
The principal opinion, however, discarding the guidelines which were laid down in United States v Moore, supra, emphasizes that wrongful appropriation may involve an intent to defraud and that such serves to render it a despicable offense. But it is a peculiar type of fraud which may form an element of the crime in question. Normally, that sort of criminal deceit involves cheating one of money or property with some degree of finality. Cf. Hammerschmidt v United States, 265 US 182, 68 L ed 968, 44 S Ct 511 (1924). Wrongful appropriation, however, involves an intent temporarily to deprive or defraud and necessarily connotes the ultimate return of the property in question to its owner, who is merely temporarily shorn of its use and possession. Thus, it hardly embraces the type of intent or deceit to which the Supreme Court has referred as “the touchstone” by which existence of moral turpitude may be determined to exist. Jordan v De George, 341 US 223, 95 L ed 886, 71 S Ct 703 (1951). Surely, this criminal “borrowing” may not be equated to larceny as if Congress made no distinction between the two offenses. Code, supra, Article 121, 10 USC § 921; House Hearings, supra, page 1245.
In sum, then, I am of the view that wrongful appropriation, as here involved, is not a crime involving moral turpitude. United States v Moore, supra; United States v Perry, 20 CMR 638. From this conclusion, it must fol*135low that accused’s prior conviction therefor was not admissible in evidence against him. Nor can it be gainsaid that its receipt was prejudicial and required the defense motion for a mistrial to be granted.
We have many times pointed out that whether an instruction to disregard inadmissible evidence should be held effective to purge the error of harm depends upon the circumstances of the case. United States v Patrick, 8 USCMA 212, 24 CMR 22; United States v Grant, 10 USCMA 585, 28 CMR 151; United States v Krokroskia, 13 USCMA 371, 32 CMR 371. “The naive assumption,” said Mr. Justice Jackson, in Krulewitch v United States, 336 US 440, at page 453, 93 L ed 790, 69 S Ct 716 (1949), “that prejudicial effects can be overcome by instructions to the jury, ... all practicing lawyers know to be unmitigated fiction.” Here, reliance on the “fiction” is precluded, for the circumstances are such that it is most improbable that the court members could have ignored the matter in their deliberations. Indeed, one member, in indicating his own misgivings as to complying with the law officer’s instructions, referred to the conviction’s introduction as “a rather dramatic part of the case.” Moreover, a conviction for misconduct in a fiduciary capacity identical to that charged against the accused at the present trial was here involved. Under the circumstances, there is more than a fair risk that accused’s claim of loss through apparent theft, in light of the previous conviction, would receive short shrift at the hands of the fact finders. United States v Krokroskia, supra. Accordingly, I would conclude that the defense motion for mistrial should have been granted, and record my disagreement with the contrary view of my brothers.
I would reverse the decision of the board of review and order a rehearing.