"very careless" in the performance of his postal duties and on one occasion he reprimanded the accused for leaving his cash box too near the window of his cage. The following instruction requested by the defense was refused: "If you believe that the funds alleged to have been stolen were lost through neglect rather than stolen, you will acquit the accused." Held: The evidence is sufficient to raise the issue of loss by negligence. Under the specification herein, no accused person could reasonably understand that he also must defend against the charge of losing the property as well as the charge of stealing it. Moreover, proof of embezzlement does not require the establishment of every element of the offense of negligent loss. Therefore, the offense of negligent loss was not a lesser included offense of embezzlement and the accused was justified in requesting an instruction phrased in language presenting the issue of negligent loss as a complete defense to the offense charged. Accordingly, in the light of the pleadings and the evidence the law officer erred in rejecting the requested instruction or, at least, in failing to embody the same theory in an instruction in his own language. (Citing U. S. v. Davis (No. 646), 2 USCMA 505, 10 CMR 3; U. S. v. Duggan (No. 3584), 4 USCMA 396, 15 CMR 396; U. S. v. Parker (No. 2449), 3 USCMA 541, 13 CMR 97.) [Latimer, J., concurring in part and dissenting in part, agrees that negligent loss of property is not an included offense of the crime of larceny founded on embezzlement, but concludes that the failure to give the requested instruction was not prejudicial error first, because findings of guilty of embezzlement would necessarily encompass a finding that the loss could not have been occasioned by negligence and second, because there is no evidence to support the accused's theory of negligent loss since although there is evidence that he was careless there was no evidence of a causal connection between his carelessness and the loss of the particular funds.] United States v. Lamerand (No. 4237), 4 USCMA 702, 16 CMR 276.

§ 39.

§ 37. Findings

Exceptions and Substitutions

§ 39.5. As to property taken.

Under one specification the accused was alleged to have stolen $30.00. By exceptions and substitutions he was found guilty of stealing $50 or less and more than $20.00. Under another specification he was alleged to have stolen $5.00. By exceptions and substitutions he was found guilty of stealing a sum not to exceed $20.00. Held: Any sum found in exces of the sum alleged, at least when money is the subject of the larceny, represents an engrafting by the triers of the fact upon the charge of something in addition to what was referred to them for trial and results in changing the identity of the offense. Accordingly, the findings, insofar as they involve findings that the amounts stolen might have been in excess of that set out in the specifications, are improper and cannot stand. (Citing CGCM 9748, Leslie, 2 CMR 622; ACM S-2490, Little, 5 CMR 382; ACM S-4483,

Brown, 7 CMR 770. Cf. CM 187302, Shaw, 49 BR 5.) CGCMS 20101, Wynn (1955) 18 CMR 455.

B. EVIDENCE

1. IN GENERAL

§ 47. Admissibility, Competency, and Relevancy

§ 47.5. Other offenses.

The accused was charged and convicted jointly with two associates of the wrongful appropriation of a car and the attempted larceny of its motor. The evidence showed that a deputy sheriff saw the car in question with its hood up and the accused and his companions standing by it. At the time he was unaware that it had been stolen but he approached the men to see if he could be of assistance. Because of answers to some of his questions, and when no one could produce the keys to the car he became suspicious. Suddenly the three men fled. He chased and caught one of them and the other two, one of them the accused, later surrendered. Each made a full confession of guilt of the offenses charged. The accused's statement contained an admission that, as a juvenile, he had been convicted of stealing a motor scooter, of violating the Dyer Act, of burglary, and of carrying a gun. The statement of one of the accused's associates mentioned the accused had told of committing other offenses. Also, a police report contained an item showing the same offenses. Held: There are a good many exceptions to the general rule excluding evidence that the accused has committed other offenses. Thus, evidence of an offense not charged is admissible when it tends to identify the accused as the perpetrator of the act with which he is charged, when it shows guilty knowledge, intent, or a course of criminal conduct, when it shows a plan or design of the accused, when it shows motive, when it is interwoven with the offense charged, when it tends to rebut a claim by the accused that his participation in the offense was the result of accident or mistake, or when it tends to rebut an issue raised by the defense. (Citing U. S. v. Marshall (No. 548), 2 USCMA 54, 57, 6 CMR 54, 57; Ụ. S. v. Jones (No. 288), 2 USCMA 80, 6 CMR 80; U. S. v. Deller (No. 1859), 3 USCMA 409, 419, 12 CMR 165; U. S. v. O'Neil (No. 2241), 3 USCMA 416, 417, 12 CMR 172; U. S. v. Hunter (No. 359), 2 USCMA 37, 43, 6 CMR 37, 43; Johnston v. U. S., 22 F2d 1, 5, cert den 276 US 637, 72 L ed 745, 48 S Ct 421; Bracey v. U. S., 142 F2d 85, 90, cert den 322 US 762, 88 L ed 1589, 64 S Ct 1274; Behrle v. U. S., 100 F2d 714, 715.) However, under the circumstances herein the evidence of prior offenses was inadmissible since none of the exceptions to the general rule excluding evidence of other offenses is applicable. However, the evidence of guilt is so compelling that no reasonable member of the court would be influenced by the incompetent evidence of the prior offenses. Accordingly, the accused was not prejudiced. [Quinn, C. J., concurring in part and dissenting in part agrees that the accused was not harmed in connection with the findings. However, he states that inadmissible evidence may prejudice an accused in regard to the sentence, even

though there is no fair risk that it improperly influenced the findings. Accordingly, the findings of guilty should be affirmed but the case should be returned to the board of review for determination of an appropriate sentence. (Citing U. S. v. Fleming (No. 2727), 3 USCMA 461, 13 CMR 17; U. S. v. Zimmerman (No. 261), 1 USCMA 160, 163, 2 CMR 66; U. S. v. Lowe (No. 4620), 4 USCMA 654, 16 CMR 228; U. S. v. Redenius (No. 2450), 4 USCMA 161, 15 CMR 161.)] United States v. Pavoni (No. 5660), 5 USCMA 591, 18 CMR 215.

[See 20 Am Jur, Evidence $$ 310 et seq.]

Admissibility of evidence of similar facts involving offenses by other persons, see ACM 8856, Skeen, EVID § 45.1.

2. WEIGHT AND SUFFICIENCY; PRESUMPTIONS
AND INFERENCES

§ 55.1. Generally.

§ 55. Larceny

The accused was convicted of stealing $20. He admitted taking the money but claimed that he intended to return it as soon as he had the funds. In a confession made shortly after the offense he stated he expected a check from his mother and that he intended to put the $20 back. The evidence also showed that when the accused took the $20 he left $48 remaining in the wallet from which he took the money. In the course of a statement in mitigation in behalf of the accused by his counsel, the defense counsel told the court that the accused had spent the money between the morning when he took it and the time when he returnd to the ship and confessed. Held: The issue of fact as to the accused's intent was placed before the court on appropriate instructions and it resolved the issue against the accused. While the board of review is empowered to decide the controverted question differently from the trial court on the above evidence there is no sufficient reason for doing so. Also, upon a contraverted question of fact, a board of review may properly accept a relevant fact vouched for by the accused's counsel when it favors the government, has a rational basis in the evidence, and is not made in violation of the counsel's duties. Accordingly, if there was ever any doubt that the accused actually used the money taken it was settled by the defense counsel's statement in mitigation. Furthermore, any possibility of differing from the trial court on the question of the accused's intent was dispelled by the fact that the accused spent the money taken since an intent to return wrongfully taken money so as to reduce a charge of larceny to one of wrongful appropriation must, as a matter of law, involve a return of the identical money taken and not merely an equivalent sum. Accordingly, although the accused may have desired to return the money once he spent it the opportunity to characterize his crime as something less than larceny was lost. (Citing U. S. v. Krawczyk (No. 3592), 4 USCMA 255, 15 CMR 255; cf. U. S. v. Krull (No. 934), 3 USCMA 129, 11 CMR 129.) CGCMS 20083, Spencer (1954) 17 CMR 554.

The accused was found guilty of larceny of a wristwatch. The evidence showed that, without authorization of the owner, he pawned a watch which he claimed to have found. In the pawnshop was a watch belonging to the accused which he had previously pawned and for which the contracted final redemption date had passed. The accused stated he pawned the stolen watch in order to redeem his own watch and, at that time, did actually receive it from the shop owner with an understanding to pay the remaining money at a future date. He further testified that he did not intend to keep the watch permanently, that he was going to redeem it the next month if he could get the money by that time and that he told the shop owner that he would be back sometime the next month to get the watch. Evidence was introduced to show the accused drew only $16 on payday which was the date prior to his obtaining the possession of the watch and it was stated that on this payday the accused left money on the books. Held: On the above evidence the court was justified in finding the accused guilty beyond a reasonable doubt of the offense of larceny. (Citing MCM, 1951, par 200a; U. S. v. Johnson (No. 2486), 3 USCMA 713, 14 CMR 127.) NCM 369, Beaver (1954) 18 CMR 371.

Accused not prejudiced by findings of wrongful appropriation where evidence supports charge of larceny, see NCM 376, Watson, supra § 17.9.

§ 55.3. Proof of intent.

The accused was convicted of two acts of embezzlement. The evidence showed that he was custodian of a fund in which a shortage of $2400 was discovered. He orally acknowledged the shortage and thereafter executed a voluntary extrajudicial statement confessing to a withdrawal of $200 from the fund for his own personal use and to the appropriation of an additional $200 handed him by another man in repayment of cash borrowed from the fund by the latter. The government divided the missing amount between two specifications, one alleging a larceny of $200, and the other the theft of $2,200. Held: There is no injustice in applying the accused's continuing intent to the findings of guilt under both specifications and thus, assuming the establishment of two separate takings, the findings of guilt under both specifications are supported by the evidence. When a theft of several articles is committed at substantially the same time and place, only a single crime has been committed. However, where there are several takings pursuant to a single design there may be more than one larceny. The test is not whether the intent is one and the same and inspiring the whole transaction but whether separate acts have been committed with the requisite intent. Although a continuous transaction may be involved, and one animated by but a single criminal intent, separate acts may be proved resulting in convictions under more than one specification. (Citing MCM, 1951, par 200a, p 361; Morgan v. Devine, 237 US 632, 59 L ed 1153, 35 S Ct 712; U. S. v. McVey (No. 2682), 4 USCMA 167, 15 CMR 167; U. S. v. Beene (No. 2961), 4 USCMA 177, 15 CMR 177. Not following People v. Cox, 286 NY 137, 36 NE2d 84.)

Held also: Although the accused was charged with two larcenies,

the establishment of the unexplained shortgage of the aggregate amount of $2400 was sufficient to prove the probability that the crimes of larceny had been committed. This evidence, together with his confession authorized his conviction and punishment under both specifications. It is immaterial that his admitted withholdings amounted to much less than $2400 since the other evidence established a total theft of that amount. Also, any difference between the rule of corroboration applied in federal courts and the more demanding standard required by the Manual for Courts-Martial is immaterial for under either rule there was sufficient evidence that the accused illegally abstracted $2400. (Citing U. S. v. Florence (No. 207), 1 USCMA 620, 5 CMR 48; Holland v. U. S., 348 US 121, 99 L ed -, 75 S Ct 127; Smith v. U. S., 348 US 147, 99 L ed —, 75 S Ct 194; U. S. v. Calderon, 348 US 160, 99 L ed, 75 S Ct 186.) United States v. Stribling (No. 5591), 5 USCMA 531, 18 CMR 155.

§ 55.5. Corpus delicti.

The accused was charged with the larceny of a Western Union money order. There was evidence to the effect that the accused was employed in an Air Force base Western Union office, that a money order Number Q 19481 was missing from the office, that the accused forged the signature of one Joe Novack to such money order and cashed the money order at the base exchange, although the space provided for countersignature was blank. It was also stipulated that the handwritten endorsement on the reverse side of the money order consisted of the name and organization of the accused and was placed thereon by the accused.

Held that:

- considering the fact that the evidence that the money order was missing from the Western Union office gave rise to an inference that the money order was not issued in the regular course of business (see ACM 7081, McDonough, 12 CMR 883; ACM 7004, Weiler, 12 CMR 845, 853, fn 3), the fact that a comparison of the accused's endorsement on the money order with the handwritten name of Joe Novack and Novack's denial that he authorized anyone to sign his name indicated that the money order was forged, the further fact that the accused paid the amount of the money order to the Western Union company after the money order had been dishonored, and other evidence, there was sufficient corroboration to meet the Manual requirement.

- statutes containing language similar to that employed by the Manual in describing false pretense are designed to protect the unwary and credulous as well as the able and vigilant (22 Am Jur, False Pretenses § 27; Commonwealth v. Beckett, 119 Ky 817, 84 SW 758; and other authorities). An inexperienced or careless person, a child, or a feeble old man might be induced to part with his property by false pretenses so flimsy and absurd as to not influence a man of ordinary prudence. Still, if the misrepresentations were such as to secure the credit of such a person and deprive him of possession of his property, no matter how absurd such representations may appear to a person of more experience