Opinion of the Court
Robert E. Quinn, Chief Judge:
We granted review in this case to consider the accused's contention that the evidence is insufficient to support his conviction for stealing, in conjunction with several fellow soldiers, two Government typewriters, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921.
Some "combat serviceable" typewriters were stored in a warehouse known as Building 111, Fort Carson, Colorado. The warehouse was located in the "extreme north section" of the installation, in what was described as the railhead area. An inventory count confirmed record entries showing the typewriters were in stock. Not long thereafter, it was discovered that two of the machines were missing. Investigation indicated that the accused and several others were implicated in the suspected theft. The accused gave a voluntary statement to a criminal investigation agent. The statement constitutes the only evidence of the accused's connection with the case. The accused contends it shows he was but a "mere onlooker" at the scene and innocent of guilt. On the other hand, the Government maintains the statement shows the accused gave active aid and encouragement to the wrongdoers, and that he is, therefore, equally punishable with them. See Article 77, Uniform Code of Military Justice, 10 USC § 877.
Before considering the details of the pretrial statement, it is appropriate to comment briefly on appellate defense counsel's intimation that part of the accused's testimony in mitigation explains away certain "imperfect" inferences that might otherwise be drawn from recitals in the statement. Evi-dence in mitigation may indicate that a previously entered plea of guilty is improvident because it was not based on applicable law or the actual facts. However, questions of fact decided by the court-martial on the basis of the evidence submitted to it are adjudicated facts and, for appellate purposes, must be accepted as true. Mitigation testimony, whether sworn or unsworn, does not minimize the legal force of the adjudicated facts. In an appropriate ease, such testimony may perhaps justify a new trial in the interest of justice, but it does not destroy the evidentiary basis upon which the court-martial reached its findings of guilty. Consequently, aside from the question of a new trial, which is not raised in any way by this appeal or by the record of trial, a challenge to the sufficiency of the evidence to support the findings of guilty must be determined only on the basis of the evidence admitted on the merits. This is the only evidence considered by the court-martial in reaching its findings, and it is the only matter from which the correctness of its decision may be determined. United States v Swanson, 9 USCMA 711, 716-717, 26 CMR 491.
Turning to the pretrial statement itself, the accused said that he and private Davis were on Security Patrol during the hours from Midnight to 7:00 a.m. Part of their responsibility was "to check certain buildings" in the warehouse area. They came upon a building, the door of which was "split almost in half." Davis went into the building "to see if anyone was in it," while the accused remained outside in their jeep, "in case anyone called on the radio." Parenthetically, it should be noted that other evidence estab lished that security patrols are instructed to report to the desk sergeant "if they find a building open or if they are in trouble." No such report was received from the accused. What transpired when Davis emerged from the building is best told in the accused's own words:
"He came out and we left and checked our other buildings. We went to the M. P. Station for coffee call. After coffee call, we met the Post Patrol which was SP4 BAILEY and Pfc RICHMOND. Pvt DAVIS told them about the building being open. We told them to come on down and look at the building. They followed us and we drove back down to the warehouse. BAILEY and I stood outside and talked. RICHMOND and DAVIS got out and went into the warehouse. DAVIS and RICHMOND came out of the building and I believe each one was carrying a portable typewriter and case. DAVIS got in the jeep with me and RICHMOND got in the jeep with BAILEY.' We drove to some kind of a NCO training area and stopped. They started talking about the typewriters and BAILEY said he would like to have one. I said I didn't want any. DAVIS gave BAILEY one of the typewriters and RICHMOND kept the other. We then continued our patrol."
Mere presence at the scene does not make one liable as a participant in the crime. As we said recently, there "must be some action on the part of the . . . [person] which encourages or assists the active perpetrators and there must be a showing of a common purpose to accomplish the criminal design." United States v McCarthy, 11 USCMA 758, 761, 29 CMR 574. Appellate defense counsel contend that the facts in this case are substantially like those in McCarthy, and that our dismissal of the charge of larceny in that case requires dismissal of the charge here. They argue that a police officer who sees a crime in the course of commission, and does nothing to prevent its completion or to apprehend the offender, may be guilty of malfeasance in office, but he is not guilty of the ' particular offense committed in his presence. See Collins v United States, 65 F2d 545 (CA 5th Cir) (1933). The argument, however, is based upon too narrow a reading of the accused's pretrial statement, and too sweeping a joinder of the instant facts with those in the McCarthy case.
In McCarthy, the evidence established that arrangements for use of the accused's car for a wholly innocent purpose were made "before the plan to steal was broached"; that before the theft, the accused specifically admonished the culprits "not to do it"; and that after the theft he had no knowledge of the act. We pointed out that, among other things, the accused's "advice . . . militate [d] against any inference that he joined" in the criminal design. We concluded that the evidence showed "mere failure . . . to interfere with the conduct" of others, without the conscious sharing of the criminal intent of the perpetrators which the law requires. The opposite of each of these circumstances is present in this case.
After discovering the broken door of the warehouse, the accused re-turned to the military police station. He did not, however, report the matter as he was required to do. Instead, he informed Bailey and Richmond, who were on Post Patrol, that the building was "open." From the record, it is reasonably inferable that the Security Patrol, not the Post Patrol, was primarily responsible for security of the warehouse. Why then did the accused tell Bailey and Richmond about the building? Why should he, as he said, invite them "to look at the building"? Why should he leave the area which he was then patrolling to lead them to an out-of-the-way warehouse which he had already checked out? From what transpired at the warehouse the court-martial could reasonably find that his purpose was not an innocent one. Immediately upon arrival, a member of each patrol went into the warehouse; both came out carrying a typewriter. That the accused expected they would emerge with some kind of property is reasonably inferable from the fact that neither he nor Bailey uttered a word of protest or asked for an explanation. Instead, they at once proceeded to another area. The accused's statement fairly indicates this area was deserted. Here, they discussed a division of the property taken from the building. True, the accused rejected a share, but the court-martial could reasonably find that his rejection was predicated upon the inutility of the typewriters to him. Whatever the accused's reason for giving up a share in the property, however, his pretrial statement shows clearly that he was no mere witness to the crime. He left his patrol to lead the thieves to the warehouse; he permitted them to enter the warehouse through the broken door. When they entered, at least one was secure in the knowledge that while the accused had had ample opportunity to do so, he had not reported the "open" door to the desk sergeant, as he was required to do; that without hesitation or expostulation, the accused drove off with the thieves to a deserted area where he discussed with them disposition of the stolen property. In our opinion, the evidence amply supports the conclusion that if the accused did not actually participate in the crime, he at least actively encouraged its commission. Collins v United States, supra.
The decision of the board of review is affirmed.