United States v. O'Neal

Opinion of the Court

Brosman, Judge:

I

This case is before us on certificate from The Judge Advocate General, United States Air Force, in' accordance with the provisions of the Uniform Code of Military Justice, Article 67 (b) (2), 50 USCA § 654.

The accused was tried by general court-martial at- Sheppard Air Force Base, Texas, on May 8, 1951, under a specification alleging in substance the making of a false writing in furtherance of a claim against the United States; in violation of Article of War 94, 10 USCA § 1566. He was found guilty thereunder and sentenced to be dishonorably discharged, to forfeit all pay and allowances to become due after the date of the order directing execution of the sentence, and to be confined at hard labor for nine months. In his action taken on June 19, the appointing authority approved the findings, but only so much of the sentence “as provides for dishonorable discharge, confinement at hard labor for six months and forfeiture of all pay and allowances.” At the same time he suspended the execution of the dishonorable discharge until the accused’s release from confinement or until completion of appellate review, whichever is the later date. Thereafter, the record of trial was considered by a board of review of the service concerned, which affirmed the findings and the approved sentence as correct in law and fact, one member dissenting. The Judge Advocate General has certified the following two questions to this Court:

(1) Whether, as a matter óf law, the record of trial contains evidence of sufficient quantum and quality to support the findings of guilty.

(2) Whether the action of the convening authority, in so far as it pertains to forfeiture of pay and allowances, must be limited in its application to forfeiture of all pay and allowances to become due,after the date of the order directing execution of the sentence.

II

These will be dealt with in'the order used above. Because of the nature of the problem before us, the facts of the ease are set out in greater detail than would ordinarily be used. From a maze of testimony characterized in varying degree by inconsistency, vagueness, uncertainty, contradiction, and omission, the following items emerge as either conceded, uncontradicted, or otherwise clearly established. On January 17, 1951, PFC Thomas M. Evans, assistant payroll clerk of the 3751st Food Service Squadron, prepared Military Pay Order 224 — hereafter referred to as'MPO 224. When it reached the office of.the Technical Training Wing’s- Accounting and .Disbursing Officer it contained the name of Sgt. Crosby O’Neal, the accused, and indicated that he had been placed on separate rations effective January 10, 1951. Sgt. O’Neal was himself at this *140 time the Squadron’s payroll clerk and PFC Evans’ immediate official superior. In actuality the accused had not been placed on orders for this purpose and was not entitled-to draw separate rations. Thereafter, at the time the month’s pay was received by Squadron members on January 31, 1951, the accused immediately “turned himself in on” a discrepancy list. According to the evidence, a discrepancy list is a document prepared in a payroll clerk’s office when necessary for the purpose of initiating inquiry in the Accounting and Disbursing Office as to the propriety of the quantum of pay received by persons specified therein. To illustrate, if an airman believed himself underpaid or “short” at the time of payment, he would normally report himself to his payroll office and ask that he be included in the next discrepancy list — and he would be expected to follow the same course if he believed he had been accorded greater compensation than that due him. At the direction of the accused his name was included in such a list by PFC. Evans, who thereafter delivered the paper to the Accounting and Disbursing Office, and with an airman employed therein, checked the pay records of the persons whose names were set out in it. At this time, and pursuant to the usual custom, PFC. Evans prepared “extracts,” i. e., explanatory data covering each questioned case and, in the absence of the accused on pass, placed these notes on the latter’s desk. ' February passed without further event, and at its end the accused received pay which included a sum for separate rations. Thereafter, on March 19, 1951, Military Pay Order 278 — hereafter referred to as MPO 278 —was prepared by PFC. Evans and when completed by him it bore no reference to Sgt. O’Neal. On the same day, however, the latter’s name was added thereto by himself together with a notation terminating separate rations in his instance. At the time of this addition, MPO 278 had already received the approving signature of Lt. Holt, the Squadron Adjutant. Thereafter, too, the date of MPO 278 was changed by the accused from March 19, when it was prepared, to March 21, the date on which it actually left the squadron pay office en route to the Accounting and Disbursing Officer.

The foregoing facts, we believe, must be accepted under any interpretation of the evidence. However, certain other testimony was contradicted or is otherwise dubious, and reference will now be made to this together with several explanations offered by the accused, which, while uncontradicted and not inherently improbable, were of necessity unsupported. Although there is no question that the accused initiated the addition of his name to the discrepancy list on January 31, there is conflict as to when he first learned of the reason for the allegedly suspected — and later verified — overpayment. According to the testimony of PFC. Evans, the accused should have learned of the overpayment’s cause when he returned from pass on or about February 3, for a statement thereof was included among the “extracts” placed on his desk during his absence. On the other hand, the accused testified explicitly that Evans’ note regarding himself did not disclose the fact of separate rations. The accused stated that he did not learn of the basis for overpayment until March 3, when he was asked by a newly-appointed corporal, whose promotion had not been reflected in his pay, to investigate the latter’s pay record status. This investigation required, said the accused, that he check MPO 224, among other items, and brought to his attention for the first time the fact that he was on separate rations. This was further supported, O’Neal testified, when five days later he received for verification from the Statistical Control Office a document known as a Cost Code Roster, and there again'-saw reported the information that he was drawing separate rations. Sgt. O’Neal also testified that on the same day, March 8, he spoke to Sgt. Stroud, Squadron Clerk and his immediate superior, telling him of both the fact and cause of overpayment and suggesting the necessity for action pri- or' to the next payday. The accused further stated that Stroud urged him not to give up a brief leave already planned by the former during the mid- *141 die of March and assured him that the matter could be straightened out on his return. Stroud was not called as a witness by either party and appears from the record to have been unavailable at the time of trial. Although internal evidence suggests the addition of O’Neal’s name to MPO 224 after execution, both PFC. Evans and the accused deny placing it there. However, the accused freely admitted entering his name with a terminal object on MPO 278. He stated that he felt free to do this without approval by the certifying officer, Lt. Holt, in view of the corrective nature of his purpose and the necessity for prompt action if a March overpayment was to be avoided. In addition, he felt this course to be proper because of a long course of dealing with Holt based on mutual confidence and permitting minor post-approval changes in MPOs by the accused. The accused even testified that, on occasion, the Lieutenant, who was a busy flying officer, had signed MPOs in blank, leaving their subsequent execution entirely to the witness. Lt. Holt, however, specifically denied this latter statement. When asked for his interpretive reaction to finding himself on MPO 224, the accused stated that he had supposed Evans had placed it there in absentminded error. It is to be observed that Evans’ testimony accords with that of the accused to the effect that the former had not verbally informed O’Neal that he was on separate rations, once this fact had been learned by Evans on or near February 2, 1951. Although Lt. Holt testified on direct examination that the accused’s name was not on MPO 224 at the time he signed it as certifying officer, this was considerably weakened on cross by admissions that he did not ordinarily check MPOs “word for word” before signature, and that he had told the investigating officer in the present case that he did not remember “looking at Military Pay Order 224 over (sic) too closely.” The record is uncertain as to who delivered MPO 224 to the certifying officer for signature or thereafter to the Accounting Office, although the accused testified that he delivered personally MPO 278 to the Accounting Office.

In the interest of affording a complete evidential picture, reference will be made in conclusion to certain physical characteristics of MPOs 224 and 278. NME Form No. 114, Military Pay Order, consists of a sheet of white paper the body of which is unlined hori--zontally but divided longitudinally into four sections headed respectively from left to right as follows: “Service No.,” “Last Name — First Name — Middle Initial,”. “Reason for Change,” and “Year (From — to—).” The evidence discloses that payroll clerks were instructed to single-space entries bearing the same remark and to double-space entries bearing different remarks — that is, verbal descriptions of reasons for change and the like. As delivered to the Accounting Office, MPO 224 bore entries covered by four different remarks. The first dealt with ten airmen recently promoted to corporal by a named paragraph of Base Headquarters Special Orders. The second dealt with a single airman who had just completed three years of service. The third had to do with another airman for whom the descriptive remark read “Iv rat,” and the final remark took the form of “Sep rats” and covered three airmen, the second of whom in order of entry was the accused. The usual spacing procedure was fully carried out, as the MPO was finally submitted, in that the first ten entries were single-spaced, and double-spacing appeared between this group and the single name covered by the second remark. This latter in turn was separated from its successor by double-spacing, and the same is true as to this successor and the final group of three names containing the accused’s and covered by the remark “Sep rats.” It is to be observed, however, that if PFC. Evans’ account of the transaction is to be accepted, he did not follow lay-out instructions at the time he prepared MPO 224, for had he done so there would have been no space for the subsequent insertion of the accused’s name between the ones above and below it— each described by the same remark and each bearing the legend “Sep rats.”

MPO 278 is considerably longer and more diversified than its predecessor. *142 Since its description would be more complex and is at the same^time unnecessary, mention of its contents in similar detail will be omitted. Suffice it to say, however, that as prepared by PFC. Evans the instructions as to spacing mentioned above were carried out. However, a contrary result was produced when the accused admittedly added his name to the document following original execution. This addition was made immediately above the name of one Sgt. Ramzy, the only airman initially included in the MPO for separate rations, and it consumed the space proper under the instructions between the Ramzy entry and its immediate predecessor. Final reference should be made to the fact that the initial alignment of Sgt. O’Neal’s name on both MPO 224 and MPO 278 suggests that each was added following original preparation. This suggestion is borne out as to MPO 278, of which the original is an exhibit in the record, by a palpable difference in shade of typewriter ribbon. This additional verification is not possible in the case of MPO 224 for the reason that a contemporaneous carbon copy, and not the original, was used as a trial exhibit and is bound with the record.

Ill

Pretermitting, as unnecessary, any consideration of either the necessity for, or the existence of, proof of presentation under the language of the specification, we shall concern ourselves here only with the sufficiency of the evidence to sustain the findings of guilty of making the false writing — the core of the offense as alleged. See Article of War 94, supra, and the Manual for Courts-Martial, 1949, pp. 249-50, 324. In view of corroborated and uncontra-dicted testimony establishing that the accused initiated action to place his name on a discrepancy list, and thus affirmatively questioned the quantum of his January pay on the very day of its receipt, it is inconceivable as a matter of logic as applied to normal human conduct that he could have been found guilty by the court-martial as charged in this case on any theory other than that he placed his name on MPO 224 with fraudulent intent and thereafter repented or for other reasons sought to sever the thread of misconduct he had begun to spin. No other theoi'y can possibly reconcile the act of making the entry — necessarily found by the court— with the utterly inconsistent fact of questioning its validity with dispatch and effectiveness. We shall, therefore, direct our attention to the question of justification for the findings of guilty under this theory of the case — despite the proffer of more involved, elaborate and finespun explanations.

Certainly the evidence in the case— documentary and otherwise — establishes that someone placed the accused’s name on MPO 224, and in our opinion as well, that it was placed there either after original execution or with intent to create this impression. The accused had opportunity indeed to have performed this act and so had PFC. Evans. These two, in truth, were closest to the document and its confection. Beyond them so far as we know, and slightly removed in objective terms of odds, doubtless stands Sgt. Stroud, the Squadron Clerk. Somewhat to his rear may be found Lt. Holt, the Squadron Adjutant, possibly the Squadron Commander, and various other persons unknown in decreasing order of probability. PFC. Evans denied all knowledge in the premises — and so did the accused. Sgt. Stroud was not called as a witness and Lt. Holt was not interrogated on the point specifically. No other elimination was attempted. Certainly, too, the accused possessed a motive for placing his name on MPO 224: he was the only person who could derive direct financial benefit from the transaction. However, it does not follow from this that different motives — undeveloped or underdeveloped at the trial — might not have been entertained by others. An example of the latter is found in the possibility of involvement on the part of PFC. Evans. In the first place, the evidence developed' that, in service parlance, Evans was “bucking for payroll clerk.” Moreover, by his own statement — -although closely associated and on supposedly friendly terms with the accused, his superior — he consciously refrained from informing the accused orally of *143 the reason for his suspected overpayment. Finally, he admitted under cross-examination to having told a story to the investigating officer inconsistent with his trial testimony — and defended at the trial by pointing out that “I wasn’t under oath then,” and “I might not have been telling the truth” at the time. Manifestly the present comment is made not at all for the purpose of attributing guilt to Evans, but rather to illustrate the possibility of motive on the part of another than the accused.

It is quite clear to us, however, that both opportunity and motive on the part of the accused were present in this case. Beyond this we are in grave doubt — for apart from the possible inference arising from the quite loose similarity between the method of adding the name of the accused to MPO 278, admitted by him, and that suggested as having been used in the case of MPO 224, there appears little to support the findings save suspicion, conjecture, and speculation. It is clear and obvious, of course, that these latter may not be used as the basis for fact-finding action. Curley v. United States, 160 F2d 229 (C. A. D. C. Cir.); Kassin v. United States, 87 F. 2d 183 (C. A. 5th Cir.). It is true that in an apparent attempt at realism it has been suggested loosely in a few civil cases that an element of conjecture is involved in every jury determination. Perhaps this is true, if the term “conjecture” be forced away from all semblance of its normal meaning. 'Words mean nothing in themselves; we have no desire to bog down in a morass of verbalism; and we regard the semantic aspect of the matter as of little importance into the bargain. Regardless of agreement with it, we believe our meaning in expressing our evaluation of the. evidence in the present case is abundantly clear. In1 any event, we suspect that it is one thing to “speculate” in a situation of civil private law, and quite another and more serious one to do so in a criminal case with its requirement of proof beyond a reasonable doubt.

IV

As we said in United States v. McCrary, (No. 4), 1 USCMA 1, 1 CMR 1, decided November 8, 1951:

“It is the cardinal rule of law that questions of fact are determined in forums of original jurisdiction or by those which are expressly granted the authority by constitution or statutes. Usually; appellate tribunals are limited to correction of errors of law.”

It is entirely clear that the Congress intended to adopt the point of view expressed above as to this Court and did not propose to extend review by us to questions of fact. No one disputes this so far as we are aware. The Uniform Code of Military Justice, Article 67(d), supra, expressly and clearly limits review by this Court as follows:

“The Court of Military Appeals shall take action only with respect to matters of law.” (italics supplied)

Among other principles of law relevant to the problem before ús is that providing in substance that the evidence in a criminal case must establish beyond a reasonable doubt that the accused is guilty of the offense charged. To this' must be added, of course, the related proposition, often clothed in varying verbiage, to the effect that the evidence in such a case must exclude every reasonable hypothesis save that of guilt. All of these considerations were recognized by us in United States v. McCrary, supra, together with the observation that the two last mentioned rules exist primarily for the guidance of trial forums. However, we should not have said there, we did not intend to say there, nor did we say there, that their administration by such agencies is above and beyond the supervision of an appropriate appellate tribunal — by this Court, in fact, although limited to “action only with respect to matters of law.” To hold the converse would effectively deprive appellate courts, including this one, of any sort of effective control over subordinate elements of the judicial *144 scheme in an important area of law administration. That this and other related and proper matters were recognized by us is evident in the following, language used by Latimer, J., the organ of the Court in the McCrary Case, supra:

“In stating this rule [requiring substantial evidence to support a verdict] we have not overlooked the converse principle that where there is no substantial evidence in the record to sustain the conviction the appellate court will set it aside. While this latter rule in a sense permits this Court to weigh and evaluate the testimony for the purpose of testing its sufficiency for a limited purpose, it does not permit us to substitute our judgment for that of the triers of fact which, under the present military ■law, are the courts-martial and the boards of review.” (italics supplied)

•Our possession of power to function in this area — to “supervise” if you will —has been challenged. Again we have no wish to lose our thread in a quibble over semantics. However, we entertain no doubt whatever of the authority of a court, trial or appellate, to pass on the reasonableness of a jury’s inferences— and particularly do we believe this to be true in a criminal setting. Likewise we are certain of our own authority to perform this essential protective function as regards the inferences of a court-martial — and this is quite unaffected by a clear legislative directive away from fact-finding power. That this was recognized long ago by no less a legal scholar than James Bradley Thayer is evident in the following quotation from his classic, A Preliminary Treatise on Evidence at the Common Law, found on page 207 and following:

“In the exercise of their never-questioned jurisdiction of declaring the common law, during all the long period of its secular growth in England and America, there has arisen-constant occasion for specifying the reach of definite legal rules, and so of covering more and more the domain of hitherto unregulated fact. This has consisted, in a great degree, in declaring the scope and operation of sound reason, wherein the common law so largely consists. With the growth of knowledge and human experience, and with the multiplied new application of maxims of reason and sense to combinations of fact, both new and old, the judges, in such a system as ours, are thus forever advancing, incidentally, but necessarily and as part of their duty, on the theoretical province of the legislator and the juryman.

“Especially has this function come into play in supervising and regulating the exercise of the jury’s office. Herein lies one of the most searching and far-reaching occasions for judicial control — that of keeping the jury within the bounds of reason.” (italics supplied)

It is probable that Thayer was thinking principally of the trial judge, rather than his appellate colleague, when he used the language of the quoted passage. It is also arguable that 'the power of a court of review to reverse a trial court and order a new trial should be and is somewhat narrower than the corresponding power of a trial court of the civilian system. However, we also recognize the presence in an appellate tribunal of broad authority to regulate the conduct of the trial judge as well as that of the jury. He — the judge — • may be “supervised” in the performance of his official functions by an appropriate appellate bench just as the same agency may “regulate” the jury in the prosecution of its dutiesh This truism is given expression in the following quotation from Dean Leon Green’s perceptive volume, Judge and Jury, at page 380:

“Probably the strangest chapter in American legal history is how in the short period of the last fifty or seventy-five years, the same period daring which trial courts were losing most of their power, the appellate courts have drawn unto themselves practically all the power of the judicial system. The early appellate court, made up as it was of a group of trial judges, neither had nor sought' a dominant position in the judicial sys *145 tem. From the moment that the appellate courts became a separate organization from trial courts, a silent and probably unconscious struggle for supremacy began, which has resulted not only in complete subordination of trial judges but also of juries. It was a development made necessary by the unhealthy ascendancy that the jury had obtained over the trial judges. It may be regretted that this dominance of the appellate courts has carried along with it the too great overshadowing of the trial judge, but inasmuch as he was already a captive, his further loss of power has not made a great deal of difference. At least he now may be, and often is through the grace of an appellate court, allowed the freest hand he has ever known in this country, but not through any. extensive power he may call his own. This does not mean that a trial judge of great capacity will not be accorded the greatest leeway in the direction of his court, but it does mean that his actions may be supervised at every step.” (italics supplied)

It is entirely possible, of course, that both of the learned authors quoted might disagree as to the propriety of the degree of supervision exercised by a particular court of review over either judge or jury in a given case. We are not at the moment aware of their general views in this area, nor at this point are we concerned with them. Rather we are interested in their assurance that courts do have authority to supervise juries in the administration of their official functions. The standard to be applied is another matter — and one to which we will address ourselves subsequently.

This authority — nay duty — on the part of the appellate judiciary to supervise the administration by trial courts of the rules with regard to quantum of evidence, reasonable doubt, and balanced hypotheses is widely recognized by courts other than ourselves, and was given the following phrasing by the court in United States v. Litberg, 175 F. 2d 20, 21 (C. A. 7th Cir.) :

“On the other hand, while the trier of the facts is entitled to draw all reasonable inferences from the circumstances in proof, a court of review is charged with the responsibility of determining the reasonableness of stick inferences.” (italics supplied)

Also the following language was used by Murphy, J., in the majority opinion in Mortensen v. United States, 322 U. S. 369, 374, 88 L. ed. 1331, 1335, 64 S. Ct. 1037:

“But we have never hesitated to examine a record to determine whether there was any competent and substantial evidence fairly tending to support the verdict. . . . Our examination of the record in this case convinces us that there was a complete lack of relevant evidence from which a jury could properly find or infer, beyond a reasonable doubt, that petitioners transported the girls in interstate commerce ‘for the purpose of prostitution or debauchery’ within the meaning of the Mann Act.” (italics supplied)

involving, as it does, the question of scope of review in this Court as to sufficiency of evidence as matter of law, the instant case sets for us a double task. In the first place, we must essay the expression of a standard of measurement — fully realizing the limitations of language for the purpose. In the second, we must apply to the present facts the yardstick accepted. Each of these is an impressive assignment. The first is important because in executing it we shall at the same time provide a solvent for the immediate problem and lay down a rule for future cases. The second is equally serious because in its performance we are required to take action gravely affecting the interests of an individual — the accused, O’Neal. Let us proceed to a determination of the standard to be used.

Historically in England the jury was the final arbiter in matters of fact — • principally bécause it was originally composed of the very persons who knew at first hand the data in question. As the jury became 'more remote from the occurrences in issue, the necessity for *146 judicial control became apparent — and numerous methods for attaining this object were readily devised. Beginning with the rude practice of attainder through the writ of error to new trial and special verdict, these are well known, and detailed reference to them will be omitted in the interest of conserving space. Narrowing our inquiry to the United States and to the specific problem before us, we meet the widespread use — until the middle of last century — of the so-called scintilla rule. To some extent the broad early use of this standard stemmed from the conclusive effect accorded jury findings by the ancient common law, without, be it remembered, the protections implicit in the English juristic and social scenes. However, in larger part it derived from the relative positions of the judge and the jury under the conditions of American pioneer democracy. Reference is here implied to the special community respect accorded juries in this setting and the fear of incurring criticism on the part of a predominantly elective judiciary, trial and appellate. Traditionally American judges have been timid in the presence of juries to an extent unknown to the British bench, and their reasons are at one patent and practical. Undoubtedly this phenomenon was in Dean Green’s mind when he referred in the passage already quoted from his essays, entitled Judge and Jury, to the “unhealthy ascendency that the jury had obtained over the trial judges.” Again, in the same volume at page 385 he has the following to say on the same general subject:

“But the refusal to accept additional power [to find facts] at this point must not be taken too seriously. The courts did not need it; they had already developed all the machinery necessary for jury control without undertaking the laborious work of fact weighing, and to have taken over this responsibility would not only have added to their burdens and have crushed the jury at a point where the judges desired to utilize it, but would also have destroyed the jury’s usefulness as an absorber of public criticism, as already pointed out.” (italics supplied)

During the period beginning about 1850 and ending early in the present century virtually all American jurisdictions rejected the narrower scintilla rule and moved to the broader scope of review contemplated by the substantial evidence rule. It is of interest to inquire into the probable meaning of the latter term. Construed grammatically, the words might conceivably, but not reasonably, mean something just merely beyond the limits of the mere scintilla of evidence formerly regarded as sufficient to block a motion for a directed verdict. At the far swing of the pendulum however, the term may — if one is willing to strain sufficiently — be construed to require a weighing of the testimony, a balancing of - the persuasive effect of the evidence on the one side of the material issues against that on the other. If this interpretation be adopted, no evidence would be deemed “substantial” unless, on examination of the whole record, substantial “rightness” should exist in the mind of the reviewing court. We are quite sure that neither of these constructions should be adopted, and we recognize the existence of any number of intermediate positions between the two stated extremes. In more recent years an approach to the problem, possibly borrowed originally from the language of instructions, has been adopted by appellate tribunals— and widely used in federal courts. Occasionally called the reasonable hypothesis rule, this approach applies the standard of the reasonable man to the determination of whether the evidence excludes every reasonable hypothesis save that of guilt. Whether this approach be regarded as establishing a new rule in competition with that demanding substantial evidence, or whether it is merely a specific application of the older principle is a matter of no final moment here. It is to be observed, however, that it seems to embrace a somewhat broader scope of review than does the substantial evidence rule as interpreted by some courts.

V

Certainly the findings of guilty in the case at bar were supported by some evi *147 dence. It is difficult to conceive of a case which has run the gauntlet of pretrial protective devices and reached the stage of trial by military court-martial in which there is no shred of evidence of guilt. But this is not enough. In addition, the evidence necessary for the conviction’s survival must be substantial. But even this is not enough, if by the term is meant but barely more than some — i.e., a scintilla — and meant as well that substantiality is necessarily to be discerned by observation through spectacles directed at only one presentation of the controversy. Of course, a court in the position occupied by us at present should look largely at the case for the government, but it is not required to ignore completely the bipartite nature of the judicial transaction, and, indeed, is permitted to take into account in a proper case other elements of the evidential structure, and to arrive at a conclusion as to sufficiency in these terms. This, of course, is what we' meant in the McCrary case, supra, when we said that we were permitted “to weigh and evaluate the testimony for the purpose of testing its sufficiency.” True it is that our purpose in such case is a very limited one, but it is the one which moves us now. Thus we cannot accept the findings in the instant case as reflecting a conclusion based solely on disputed facts; and along with the undisputed facts we must weigh O’Neal’s uneontradieted and not inherently improbable testimony. See Gallegos v. State of Nebraska, 342 U. S. 55, 96 L.ed. 86, 72 S. Ct. 141.

True it is, too, we recognize, that in speaking thus we are, like many other federal tribunals, laying down a slightly broader rule than is reflected in the language of some courts. At the same time we intend consciously to avoid the breadth of appellate function assumed by other authorities. In any event the view we take is the one we regard as demanded by the realities and the necessities of the military judicial system of which we are a part. In our opinion the adoption of any narrower conception would be ill-considered and inappropriate to the mission of this Court. Moreover — considered from' the standpoint of practical operation, as divorced from any question of verbalization — we submit that in actuality this binocular approach is implicit in the very idea of balanced hypotheses, a notion well settled in many federal courts as is reflected in the following judicial language from Towbin v. United States, 93 F. 2d 861, 866 (C. A. 10th Cir.) :

“In0 Bishop v. United States, 8 Cir., 16 F. 2d 410, 416, it is said; ‘This court has often taken the position that, where the evidence in a case is as consistent with innocence as with guilt, a conviction cannot be sustained. In Grantello v. United States, 3 F. 2d 117, 118, this court said; “Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused; and where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse, a judgment of conviction.” ’ [citing cases].” (italics supplied)

The following state of the authorities is reported in the concurring opinion in the case of Leslie v. United States, 43 F. 2d 288, 289 (C. A. 10th Cir.) :

“But we cannot agree with the statement in the opinion that; ‘It [the government] depended for conviction on circumstances, and in view of the contrary evidence they might reasonably be considered as consistent with his innocence. The jury should have been left free to decide the issue.’ If they are so consistent the trial court should have directed a verdict.

“The rule is stated in many ways, one of which is: [quoting the language from the Grantello case set out above].

“There are so many cases from the Eighth Circuit that it is needless to cite them all. A considerable number of distinguished jurists from the circuit approved of the rule, and none ever dissented. A few of the.cases are: [citing numerous cases].

“A glance into the Digests discloses that the First Circuit has so held: *148 [citing a case]. Also the Second: [citing cases]. Also the Third: [citing cases]. Also the Fourth: [citing a case]. Also the Court of Appeals of the District of Columbia: [citing a case].

“In 16 CJ 763, the rule is stated: ‘In order to sustain a conviction on circumstantial evidence, all .the circumstances proved must be consistent with each other, consistent with the hypothesis that accused is guilty, and at the same time inconsistent with the- hypothesis that he is innocent, and with every other rational hypothesis except that of guilt.’

“Cases are cited from thirty-nine jurisdictions in support of the text. No contrary authority is cited.

“The rule is right. The government must establish guilty. The court must direct a verdict if no substantial proof of guilt is offered. When the proof rests on circumstances which lead as rationally to the- conclusion of innocence as of guilt, there is no proof of guilt, and nothing to go to the jury. Juries are not permitted in civil cases to speculate as to the negligence of the defendant (A., T. & S. F. Ry. Co. v. Toops, 281 US 355, 50 S Ct 281, 74 L ed 896, and cases there cited).; they should not be permitted to guess at the guilt of a defendant in a criminal case.” (italics supplied)

These cases appear to establish fully the presence of substantial authority to the effect that if a reasonable inference other than that of guilt may be drawn from the evidence, a trial court should direct for the accused, and in a proper case an appellate court should reverse a conviction. The question now arises: the yardstick of whose judgment is to be applied in the solution of this problem ? Or to put it somewhat differently, must we reverse if reasonable men cannot agree on the balance of hypotheses ? Or are we required to sustain unless reasonable men would agree that a rational hypothesis other than that of guilt may be drawn from the evidence? Our answer to the inquiry’s first form is that our judgment, as such, is not the standard for application, but rathqr our conception of the judgment of reasonable men. And our response to its second is that we must not reverse unless we believe that reasonable men would be in accord in holding that a rational hypothesis other than that of guilt may be drawn from the evidence. We regard these as manifestly the more rigorous standards, and for that very reason — and in these premises — the only proper ones. We believe this view is supported by the quotation set out below. It is from Stoppelli v. United States, 183 F2d 391, 393 (CA9th Cir) :

“It is not for us to say that the evidence was insufficient because we, or any of us, believe that inferences inconsistent with guilt may be drawn from it. To say that would make us triers of the fact. We may say that the evidence is insufficient to sustain the verdict only if we can conclude as a matter of law that reasonable minds, as triers of the fact, must be in agreement that reasonable hypotheses other than guilt could be drawn from the evidence.”

VI

Applying the principles developed above to the case at bar, we are firmly of the opinion that the findings of guilty and the sentence must be set aside as based on insufficient evidence. Accordingly The Judge Advocate General’s first certified question is answered. This action is predicated on the view that the complex of evidence before the court-martial simply did not permit the determination of guilt of the accused beyond reasonable doubt within the fair operation of a reasonable mind. In reaching this conclusion we are aware of no sort of inconsistency with our holding in the case of United States v. McCrary, supra. There the only real issue before the court-martial was that of intent. Here the sole issue involves the performance or the nonperformance of an act. We have applied to the determination of both cases an identical approach of legal principle. That we reached differing conclusions in each is solely the product of essential differences of fact,

*149 YII

Although not strictly necessary in view of our determination of the first certified question, we will, now deal briefly with the second inquiry. It requests our opinion as to whether the action of the convening authority in this case, in so far as it has to do with forfeitures, must be limited in its application to pay and allowances to become due after the date of the order directing execution of the ' sentence. Reference has been made in an earlier portion of this opinion to the fact that the sentence of the court-martial as regards forfeitures was that the accused forfeit all pay and allowances “to become due after the date of the order directing execution of the sentence.” However, in his action taken thereafter the conven-' ing authority approved only so much of the sentence “as provides for dishonorable discharge, confinement at hard labor for six months and forfeiture of all pay and allowances.”

The solution of this problem presents no difficulty. The convening authority approved the sentence in the case at bar on June 19, 1951, and the order directing execution of the sentence bears this same date. Under any view of the authorities, of logic and of the facts, a forfeiture of all pay and allowances in this case is a greater penalty than a forfeiture of all pay and allowances to become due after June 19, 1951. See Manual for Courts-Martial; 1949, paragraph 116g and Appendix 9; Uniform Code of Military Justice, Article 57(a) ; Manual for Courts-Martial, United States, 1951, paragraph 126h(5). As such it is expressly forbidden by an ancient principle of military law administration set out in both the Manual for Courts-Martial, 1949, paragraph 87b, under which the accused was tried, and the Manual for Courts-Martial, United States, 1951, paragraph 88a, in effect at the time the convening authority acted in the case at bar. This principle is to the effect that such an officer may not “add to the punishment imposed by a court-martial.” To the extent to which this may be taken as having been attempted, but only to this extent, the action of the convening authority is vain, nugatory, and without legal effect.

It has been urged upon us that the language of the convening authority’s action should be viewed as having been used in hasty error, that his intention to act in accordance with law should be presumed, and that the phrasing adopted by him should not be interpreted in such a manner as to produce irregularity. It is manifest that an acceptance of this position will produce the very result reached above on other reasoning. In view of the relative unimportance of the present problem and its probable transitory character, it does not seem necessary to elect between these two approaches in responding to The Judge Advocate General’s second certified question. In either event, it is clear that the action of the convening authority as' to forfeitures must indeed be limited in' its application to pay and allowances to become due after the date of the order directing execution of the sentence, that is, June 19, 1951.

For the reasons set forth herein the decision of the board of review is reversed and the charge will be dismissed.