Opinion of the Court
George W. LatimeR, Judge:
The accused was found guilty of four specifications of larceny by check, three specifications of absence without leave, and one specification of uttering a worthless check with intent to deceive, in contravention of Articles 121, 86, and 134, Uniform Code of Military Justice, 10 USC § 921, 886, and 934, respectively. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for four years. The convening authority approved only so much of the sentence as provided for dishonorable discharge, total forfeitures, and confinement at hard labor for two years. A board of review in the office of The Judge Advocate General of the Army reduced the period of confinement to one year but otherwise affirmed the proceedings. The accused then filed a motion for reconsideration with the board, which was denied. Thereafter he petitioned this Court to consider several assignments of error. We granted his petition to determine whether an instruction on false pretenses given by the law officer was erroneous and prejudicial to his substantial rights.
Because the issue concerns only the fraudulent check offenses, we restrict our statement of facts to those crimes, and for our purpose in the case at bar we may treat the larceny counts and the Article 134 offense alike. The first specification concerned a check for $25.00 drawn on a Texas bank in October 1957, which was returned for lack of sufficient funds to pay upon presentment. The next three specifications involved checks for $50.00, $50.00 and $40.00, respectively, all drawn on a bank in Pemberton, New Jersey, in November or December 1957, each being returned because accused had no account at that bank. The last specification has to do with a check for $90.00 drawn on the Farmer's State Bank in Hanover, Pennsylvania, in November 1957, which also was returned because an account had never been opened in that bank.
The Government established all of the necessary elements of the various offenses, and the accused took the stand as a witness in his own behalf. He testified that at the time he wrote each of the checks he honestly believed he had an account with the bank with sufficient funds on deposit to pay the paper when presented. According to him, the difficulties arose in the following manner. In October 1957, he forwarded $250.00 and a signature card with his signature affixed thereto to his wife, who was then living in a rural area near Hanover, Pennsylvania. He had made prior arrangements with her that she was to complete the signature card and then send both the money and the card to the Pemberton Bank to open a joint account. At the same time, he sent $100.00 to his wife under the same arrangements except she was to deposit that sum and the appropriate card with the Hanover Bank. Shortly thereafter, he conversed with his wife by telephone, and she told him she had carried out their prearranged plan. Subsequently, on November 14, 1957, he was notified by his commanding officer that the first of his checks drawn on the Pemberton Bank had been dishonored, and he thereupon called his wife on the telephone and she disclosed that she had not yet sent the money. She agreed to do so forthwith and, in reliance on this representation, he drew each of the three cheeks on the Pemberton Bank. Parenthetically, we note that the three checks were dated November 21, 1957, December 6, 1957, and December 11, 1957, and although the accused was home over the intervening week-ends, his testimony is at odds with that of his wife about their discussion of the status of their accounts.
The accused's wife in a deposition stated: That she received the signature card and $350.00 to be deposited in the Pemberton Bank and the Hanover Bank; that she never opened up an account in either; that she was pregnant and sick at the time and subsequently suffered a nervous breakdown; that her husband was not aware she had not deposited the money as agreed; and that she kept the money in an envelope but, while restitution was discussed, nothing was said about opening up the accounts.
For the purpose of determining the issues raised, we are willing to give credence to all the testimony most favorable to the accused. When we do that, we reach the same conclusion on the only theory of importance to the triers of fact as did trial defense counsel. He stated the defense theory as being this:
"The defendant's case on the check charges rests very briefly on one legal defense — in other words, mistake of fact. The fact that there was a checking account being a mistake. We do not maintain that this was an intelligent belief. We do not maintain anything in regard to the propriety with which Private Bethas handled his financial affairs. We only maintain that he was honest in his belief that these checks would be honored." [Emphasis supplied.]
A law officer has a duty to instruct on all the issues raised by the evidence and in this case we believe he met his burden. In addition, he further specifically staked out accused's theory of defense. Moreover, under the posture of the evidence, he instructed properly and correctly. As we have reiterated on many previous occasions, instructions must be considered by their four corners and there are three separate instructions which must be interpreted together to finally resolve the issue. The first instruction has to do with the method of obtaining the property, and it reads:
". . . The pretense must, in fact, be false when made and when the property is obtained and it must be knowingly false and [sic] in the sense it is made without an honest belief in its truth. A false pretense is a false representation of past or existing fact. . . . For example, a person makes a false pretense by uttering a check made by him if at the time of the uttering he did not honestly intend to have sufficient funds in the bank available to meet payment of the check upon its presentment for payment in due course."
The second instruction is common to all of the specifications alleging larceny, and it required the court-martial members to find the essential elements of that offense. For illustrative purposes, we quote the one given by the law officer on the first specification of the larceny charge:
"The court is advised that to find accused guilty of Specification I and the Charge of Charge II, it must be satisfied by legal and competent evidence beyond a reasonable doubt: First, that on or about 21 October 1957 at Fort Dix, New Jersey, the accused wrongfully obtained this money from the possession of the Non-Commissioned Officers' Open Mess, Fort Dix, New Jersey which had a greater right to possession of the money than the accused; Second, that the Fort Dix, New Jersey Non-Commissioned Officers' Open Mess was an owner of the money, in the sense it had title to it or that it had possession of it, or the right to such possession; Third, that the money of the value of twenty-five dollars or some lesser value, in which case the finding should be in the lesser amount; And fourth, that the obtaining by the accused was with intent permanently to deprive the Fort Dix Non-Commissioned Officers' Open Mess of the use and benefit of the money."
The last instruction with which we need concern ourselves is the one setting out the defense theory of mistake of fact. In advising the court on that issue, the law officer stated:
"With reference to the question of mistake of fact, the defense has introduced evidence to show that at the time of the alleged offenses listed under the charge of Charge II and Charge III, that is the larcenies in Specifications 1, 2, 3 and 4 of Charge II and the uttering under the Specification of Charge III, the accused was under the mistaken belief that his wife had placed money in the two respective banks. With respect to this evidence, the court is advised that if the accused was laboring under such mistake and if his mistake was honest, he cannot be found guilty of larceny in the case of the Specification of Charge II, nor uttering in Charge III, for it is essential to the conviction of this offense that the prosecution prove beyond a reasonable doubt that the accused had the specific intent in the case of the offenses listed in Charge II, the specific intent to permanently deprive and in Charge III, the intent to deceive. The burden is on the prosecution to establish the accused's guilt by legal and competent evidence beyond a reasonable doubt. Consequently, unless you are satisfied beyond a reasonable doubt that the accused was not honestly under a mistaken belief that he had money in the bank — let me restate that. Consequently, unless you are satisfied beyond a reasonable doubt that the accused was not honestly under the mistaken belief that he had money in the bank, you must acquit the accused. Honest mistake as to the fact of having money in the bank, no matter how unreasonable, will exonerate the accused with respect to the offenses charged in Charge II, that is larceny."
The particular complaints about the first instruction quoted above are that it substitutes "want of honest belief" for "knowledge of the falsity" in the crime of obtaining property under false pretenses, and that it shifts the burden of proof to the accused. We were faced with similar problems in United States v Dinsmore, 11 USCMA 28, 28 CMR 252, but in that case we did not decide the questions because of no prejudice to the accused. In United States v Smith, 11 USCMA 321, 29 CMR 137, we disposed of the contention that the instruction shifted the burden of proof by holding that the advice did not have that legal effect. While Judge Ferguson disagreed with that conclusion, counsel for the parties concede the questioned instruction does not relieve the Government of its obligations.
Perhaps United States v Beasley, 3 USCMA 111, 11 CMR 111, is the closest case on the facts and law, and it might be dispositive of this case, but to settle the instructional question once and for all we will further develop the issue. That case had the same questions and similar instructions with respect to larceny by false pretenses. We there said :
"The instructions in the instant case fully described the subject of false pretense; and particularly and more aptly explained that phase of the case relating to the belief of the accused as to the sufficiency of funds available to meet the payment of the checks upon presentation. They included all that the defense requested, and more. Taken as a whole, therefore, the instructions clearly, fully, and fairly informed the court of the applicable legal standards. The obligation of the law officer was substantially complied with, and there was no error in refusing to instruct in the precise language of the request."
In this case, the facts are such that when the instruction on false pretenses is interpreted properly it informs the court-martial of the applicable standards and otherwise correctly states the law. It is to be noted that that instruction deals with the element of wrongfully obtaining possession of the property and, if an accused makes a representation knowing it is false or makes it without an honest belief that it is true, and the owner is deceived thereby and parts with his property in reliance on the statement, the property has been wrongfully obtained by the accused. It requires little imagination to ascertain that if he does not honestly believe the representation he makes and it is in fact false, he has committed a fraud on the owner and his possession is not obtained rightfully.
In The Philadelphia, Wilmington & Baltimore Railroad Co. v Howard, 13 How 307 (US 1851), the Supreme Court announced this to be the law:
"These decisions go much further than this case requires, because the defendant not only induced the plaintiff to bring this action, but defeated the action in Cecil County Court, by asserting and maintaining this paper to be the deed of the Company; and this brings the defendant within the principle of the common law, that when a party asserts what he knows is false, or does not know to be true, to another's loss, and his own gain, he is guilty of a fraud; a fraud in fact, if he knows it to be false, fraud in law, if he does not know it to be true. Polhill v Walter, 3 B. & Ad. 114; Lobdell v Baker, 1 Met. 201."
While that case involved a civil action, it is authority for the proposition that a person is guilty of fraud — wrongfully obtaining property — if he asserts something to be true which he does not know to be true. We, of course, concede that a crime is not measured by the standards of civil law, but one element of the offense may be. Certainly, if possession is obtained in contravention of the rules of civil law, it is obtained wrongfully under a criminal code. Historically, the crimes of larceny and false pretenses were distinguishable but the distinction was less apparent where larceny was committed through obtaining possession by fraud. See 22 Am Jur, False Pretenses, § 3. But in both instances the original possession had to be wrongful, thus distinguishing those offenses from the later crime of embezzlement. All of those offenses are now grouped under Article 121 of the Code, supra, and that Article may be violated whether the original possession was obtained rightfully or wrongfully. Assuming it is necessary in the case at bar for us to decide whether accused took wrongfully, we have no difficulty in concluding that he did, for the owners only parted with their property because of his misrepresentations. What he held out to the payees was false and he cannot support a contention that his possession was-rightful unless he honestly believed he was telling the truth. He contended he was, but the court-martial found he was not and when a misrepresentation is the operating cause of an owner parting with possession of his property, it should be obvious that the transaction is founded on illegality. When property is obtained wrongly with the concomitant appropriate intent, you have the essential elements of the crime of larceny.
When we consider all of the quoted instructions and apply them to the particular facts of the case we find the instructions sufficient, for the only issue was accused's honest belief that he had funds on deposit to pay the checks. That-defense, if raised reasonably, un dercuts two elements of the offense, i. e., that the money was wrongfully obtained and that the accused intended to deprive the owner permanently. The law officer recognized this principle, for a reference to the third quoted instruction will disclose he stated categorically that, unless the court members were satisfied beyond a reasonable doubt that the accused was not honestly under the mistaken belief he had money in the bank, they must acquit him. In addition, he re-emphasized the rule by advising them that no matter how unreasonable accused's belief might be, if it was honest he must be exonerated from the larceny offenses. Accepting accused's evidence at face value, he asserts that he honestly believed funds had been deposited to pay the checks and that was the reason they were issued. Under the instruction, the court-martial had to find he did not have that belief, and if he did not, his entire defense collapses for either he believed his wife had opened the account and made the deposit or he knew there were no funds to pay the checks. With the Issue of mistake framed properly, the larceny instruction was adequate for it required the court to find on all essential elements of that offense, including wrongful possession and intent to deprive permanently. Obviously, there is ample evidence to support the court findings on all elements.
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.