and greater sagacity, they would be such representations as are contemplated by the Manual provisions concerning false pretenses.

assuming that the false pretense in the instant case was not one that would deceive reasonably prudent persons, that is, the lack of a countersignature on the money order would place a reasonably prudent person on notice that it was not negotiable, nevertheless the acts of the accused constituted an obtaining of money by false pretense within the meaning of par 200a (5), MCM, 1951, and UCMJ, Art 121. ACM 9370, Rogers (1954) 17 CMR 883. The accused was convicted of larceny of a sum of money, the property of the Dependent Aid Association. One of his duties was to make collections on behalf of the DAA on each pay day. When he first assumed his collection duties he was instructed that at the end of each days' collecting he should place the money in an envelope, mark the envelope and put it in the squadron safe. That procedure was utilized from then on. At the end of the business day and the date of the alleged offense the accused was seen to place a quantity of money in an envelope, seal it, mark "Deps Aid $437.00" on the front, and staple it. This envelope was placed in the safe. No one but the accused counted the money at the time. When it was ascertained that the accused was AWOL the envelope was opened and found to contain a sum of money less than that marked on the outside. The accused made a pretrial confession but the only corroborative evidence tending to prove the probability that $437 of DAA money was in the accused's hands was the statement written by the accused on the outside of the envelope.

Held that:

- while evidence of acts done or statements made by a person while engaged in the commission of a crime would be entitled to reception in evidence as admissions, the probative value would be limited since one confession or admission cannot be used to corroborate another. Thus, in the instant case, if the writing on the envelope was competent evidence only because of its classification as an admission against interest, it would not supply the independent evidence necessary to render the confession admissible. (Citing MCM, 1951, par 140a; U. S. v. Landrum (No. 4478), 4 USCMA 707, 16 CMR 281; U. S. v. Jones (No. 288), 2 USCMA 80, 6 CMR 80.)

- if the evidence was admissible on some ground other than the rule of evidence pertaining to admissions, it would be primary proof of the facts it purports to state, at least primary in the sense that it would not require additional and independent corroboration of those facts, and, in that regard, the incidental self-incriminatory aspect of the evidence would not taint the proof to such an extent that it could not be used to corroborate a confession within the prohibitory language of par 140a, MCM, 1951. (See MCM, 1951, par 142b; State v. Saltzman, 241 Ia 1373, 44 NW2d 24; ACM 8816, Emerson, 16 CMR 690; U. S. v. Chapman, 168 F2d 997; U. S. v. Kertiss, 139 F2d 923; 6 Wigmore's Evidence § 1732, 3rd ed, 1940; 4 Vanderbilt Law Rev 696; 36 Iowa Law Rev 703; 12 Univ of Pitt L Rev 303 and other cases and authorities.) -the statement on the envelope was admissible under the

business entry exception to the hearsay rule since the instructions given the accused when he undertook his collection duties required him to count the money, place it in an envelope and mark it with words identifying the funds. Accordingly, the independent evidence is sufficient to indicate that the offense was probably committed by someone. (Citing MCM, 1951, par 144c; Act of 25 June 1948, ch 646, 62 Stat 945, 28 USC 1732; ACM 5561 (Reh), Roberson, 12 CMR 768; U. S. v. Evans (No. 143), 1 USCMA 207, 12 CMR 113 and other cases.) ACM 9220, Villasenor (1954) 18 CMR 489.

The accused was convicted of three offenses of larceny. Apart from a confession, the evidence to support the convictions was that the accused was aboard a certain ship at the times in question and that money was missed from the lockers of three different men on two different dates aboard this vessel. There was no testimony tending to show that it was the accused who took the money. Held: The independent evidence sufficiently raised the probability that someone had stolen the missing money from the three lockers and it therefore satisfied the rule requiring corroboration of a confession. It is not necessary that the corroborating evidence tend to connect the accused with the offense. (Citing MCM, 1951, par 140a; cf. U. S. v. Colbert (No. 401), 2 USCMA 3, 6 CMR 3; CGCM 9734, Madeiros, 1 CMR 566.) CGCMS 20101, Wynn (1955) 18 CMR 455.

The accused was convicted of stealing a cashier's check, the property of another airman. The evidence aside from a confession of the accused established that the American Express Company issued a check in the name of another airman, who was the only person who could cash it. This airman never received the check but later saw it in the legal office at the air base. He subsequently received. by other means, the funds due him. In the meantime the accused was in possession of the check, represented it to be his, and pledged it as security for a loan. Held: The evidence tends to establish not only every element of the offense of larceny, but goes further than that and tends to establish the criminal agency of the accused. The evidence is substantial in nature and it therefore supplies sufficient corroboration of the accused's confession under the rule contained in par 140a, MCM, 1951. Held also: The law officer was not required to instruct the court to find the sufficiency of the corpus delicti before considering the accused's confession since the question of the sufficiency of the corroborative evidence raises no substantive issue which should be resolved by the finders of the fact. Where there is an issue of voluntariness the law officer must instruct thereon in order to dispose of the question of the trustworthiness of the confession but the rule as to corroboration does not, as a primary matter, address itself to trustworthiness and where the law officer has determined that there is sufficient corroborative evidence, the requirement of trustworthiness has been complied with and there is no issue for the court. (Citing U. S. v. Scheiderman, 106 F Supp 892; ACM 7733, Landrum, 14 CMR 827, reversed on other grounds U. S. v. Landrum (No. 4478), 4 USCMA 707, 16 CMR 281. Distinguishing ACM 6385, Goodbird, 9 CMR 658; ACM 7800, McDonald, 14 CMR

633; ACM S-8171, McDonald, 14 CMR 679; U. S. v. Smith (No. 2739), 3 USCMA 680, 14 CMR 98; U. S. v. Davis (No. 646), 2 USCMA 505, 10 CMR 3.) ACM 9817, Miller (1955) 18 CMR 806. See ACM 8967, Moe, infra § 57.1.

Proof of shortage in aggregate amount as sufficient to prove corpus delicti of two larcenies totaling that amount, see United States v. Stribling, supra § 55.3.

Proof of corpus delicti by business entry which also constituted an admission, see United States v. Villasenor, EVID § 319.

§ 57.1. Generally.

§ 57. Wrongful Appropriation

The accused was charged with larceny by check and found guilty of wrongful appropriation. The evidence established that the accused uttered the checks involved and, at that time, he knew that his bank account was insufficient to cover the checks. The accused's contention at trial was that he had intended, at the time he uttered the checks, to deposit money in the bank to cover them before they reached the bank, by making a loan or partial payment. However, cross-examination revealed he never thought of the possibility of borrowing money until after the checks were uttered and did not attempt to obtain any funds to redeem them until after he had written the last one of the group. The defense counsel argued that the accused could not be found guilty as charged since, when the checks were uttered, the accused honestly intended to deposit money to cover them. Moreover, he contended that, assuming an obtaining by false pretense was shown, the evidence supported only an intent to temporarily deprive the owner of his money. The law officer instructed on the elements of larceny and wrongful appropriation. Held: While the evidence clearly established that larceny was committed and wrongful appropriation was not in issue, the theory of the defense, though erroneous, was presented to the court by the law officer's instructions and the court apparently adopted the defense theory since it found the accused guilty of the lesser offense. Since the evidence supports the greater offense, larceny. the accused is in no position to complain that the evidence does not support any intent to temporarily deprive the owner of his money. (Citing U. S. v. Bartholomew (No. 166), 1 USCMA 307, 3 CMR 41; U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45; ACM S-7416, Heald, 13 CMR 665. Distinguishing ACM 8341, Peeples, 15 CMR 748; U. S. v. Krawczyk (No. 3592), 4 USCMA 255, 15 CMR 255.) ACM 8830, Willis (1954) 16 CMR 625.

The accused was charged with the larceny of $3500.00 from a Charter Flight Fund and found guilty of wrongful appropriation. The evidence disclosed that the accused was entrusted with the custody of such funds and that an accounting of the funds disclosed a shortage of approximately $3500.00. The accused in a pretrial statement recited that he had used the $3500.00 for expenses in connection with other funds for which he was responsible,

He

also stated that the fund, aside from the foregoing shortage, was also short $2630.00, which he had loaned without authorization to certain others. Held: Although the evidence cannot reasonably be construed as establishing intent to temporarily deprive, since the accused obviously did not intend to return to the fund the same money he withdrew (see U. S. v. Krawczyk (No. 3592), 4 USCMA 255, 15 CMR 255), the evidence is sufficient to establish that he intended to permanently deprive and thus sufficient to establish larceny. The accused could not be prejudiced by a finding of guilty of the lesser included offense of wrongful appropriation where the evidence established larceny (see U. S. v. Bartholomew (No. 166), 1 USCMA 307, 3 CMR 41; U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45; ACM S-7416, Heald, 13 CMR 665; ACM 8830, Willis, 16 CMR 625; see also U. S. v. Krawczyk (No. 3592), supra).

Held also: The evidence is sufficient to establish that the offense charged was probably committed by someone and thus meets the requirement for corroboration of the accused's pretrial statement. (Citing MCM, 1951, par 140a; U. S. v. Manuel (No. 2638), 3 USCMA 739, 14 CMR 157; U. S. v. Isenberg (No. 579), 2 USCMA 349, 8 CMR 149.) ACM 8967, Moe (1954) 16 CMR 829.

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

§ 63. Possession of Stolen or Missing Property

§ 63.1. Generally.

The accused was found guilty of stealing a set of rings. A member of the same organization as the accused discovered a set of rings was missing from his locker without his permission. Within a period of three days after the discovery that the rings were missing, the accused gave the rings to his girl friend but subsequently obtained them back from her and pawned them. He was also found guilty of stealing two pairs of trousers and a shirt. On 2 March 1954, there was found in the accused's effects a pair of trousers identified by a member of the accused's organization as property of his which he had discovered missing about 21 February 1953. Another pair of trousers was found at the same time and identified by another member of the accused's organization as property he discovered missing about 5 December 1953. Both pairs of trousers were marked with the owners' names. A shirt was discovered missing by another member of the accused's organization. Subsequent to its theft, the accused gave the shirt to his girl friend and told her she could keep it but to remove the stripes from it. The shirt was marked with the name of the owner.

Held that:

-in military law, evidence that an accused was in possession of recently stolen property does not, as a matter of law, raise a presumption or inference that the accused stole the property. It is only circumstantial evidence tending to establish that he stole the property and such evidence must be weighed by the members of

the court in terms of its logical value and with respect to the evidence as a whole pursuant to the usual rules pertaining to the weight to be accorded circumstantial evidence. Thus, the members of the court, in the exercise of their independent judgment are free to draw or reject an inference from such evidence that it was the accused who stole the property. In other words, the so-called presumption that exists with respect to the proof of possession of recently stolen property falls within the category of presumptions that are permissive rather than mandatory at the will and judgment of the members of the court. (Citing MCM, 1951, par 138a; U. S. v. Johnson (No. 2363), 3 USCMA 447, 13 CMR 3; ACM S-5051, Toliver, 8 CMR 666; ACM S-7277, Adaszak, 13 CMR 640; U. S. v. Doyle (No. 1804), 3 USCMA 585, 14 CMR 3; U. S. v. Biesak (No. 2676), 3 USCMA 714, 14 CMR 132; see also Wigmore on Evidence, 3d ed, sec 2513; 52 CJS, Larceny §§ 108, 109, 141, 151; 32 Am Jur, Larceny §§ 140, 142, 143, 153, 154.)

- however, evidence consisting solely of proof of possession of recently stolen property is sufficient as a matter of law in the absence of a satisfactory explanation of possession to sustain findings of guilt that the possessor stole the property. (Citing U. S. v. Johnson (No. 2363), 3 USCMA 447, 13 CMR 3; ACM S-5051, Toliver, 8 CMR 666; ACM 5158, Simmons, 5 CMR 628; ACM S-7277, Adaszak, 13 CMR 640; U. S. v. Doyle (No. 1804), 3 USCMA 585, 14 CMR 3; 52 CJS, Larceny §§ 109, 141; 32 Am Jur, Larceny §§ 140, 142.)

- with respect to the rings, the proof of the accused's possession of the recently stolen property and his intentional dealing with it, in the absence of any explanation as to how he came into possession of it, clearly justified an inference beyond any reasonable doubt that the accused stole the property. (Citing U. S. v. Johnson (No. 2363), 3 USCMA 447, 13 CMR 3; ACM 5158, Simmons, 5 CMR 628.)

- in the case of the shirt there was an interval of several weeks' time between the theft and the showing of the accused's possession. In the case of the second pair of trousers mentioned above, there was an interval of approximately three months. However, the inferences arising from the accused's possession of the shirt and the trousers were corroborated by the circumstances that the stolen property was clearly marked with the owners' names, that the owners were members of the same organization as the accused, and that each one's property was stolen from a locker in his barracks. Also, the circumstance that at the time the accused gave the shirt to his girl friend he instructed her to remove the stripes corroborated an inference that the accused stole it. This quantum of evidence, in the absence of any explanation as to how the accused came into possession of the property is legally sufficient to sustain the findings of guilty.

- however, with respect to the first pair of trousers mentioned above the evidence is insufficient. The evidence shows that the trousers were found in the accused's possession more than a year after they were stolen and this passage of time greatly