Opinion of the Court
George W. Latimer, Judge:
At Kaiserslautern, Germany, a general court-martial tried the accused on four specifications of false swearing and one specification of wrongfully instructing an employee to testify falsely, in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728. He was found guilty on three specifications' of giving false answers and sentenced to dismissal from the service, total forfeitures, and three years confinement at hard labor. The convening authority reduced the sentence to dismissal and total forfeitures, which was affirmed by the board of review. This Court granted review to make a determination of six questions which cover a variety of issues. We will state the questions specifically as they are considered later, but we believe at this point it is advisable to note that the offenses of which the accused stands convicted all arise out of answers given by him at an official investigation being conducted by an Inspector General.
The controversy which here concerns us arose in the following manner: The accused was in charge of installation and maintenance of communications within the Western Area Command, United States Army Europe. Generally speaking, the procurement procedure for that command required orders or requests for necessary supplies to show the purchase price of all articles, and the name of the firm from whom they were to be purchased. There was a central supply agency maintained by the Army, and the requisitions were forwarded to it. Upon receipt of the order, the agency would then purchase the items, having them shipped from the supplier directly to the unit making the request. The organization, upon the receipt of the items, would forward the invoice to the appropriate officer, who in turn would make payment to the supplier.
At a time when the accused’s command was in need of nonexpendable equipment, he was advised that a sum of money had been allocated for use in acquiring expendable supplies. In order to obtain some nonexpendable types of equipment, the accused determined to divert a portion of the allotted funds. Thereupon, a request for expendable [133]*133supplies in an amount great enough to permit the acquisition of a predetermined number of nonexpendable supplies was prepared. In order to obtain the desired goods, it was necessary to arrange with the German suppliers to make appropriate substitutions. This was done under direction of the accused, and the plan contemplated that, regardless of the type of nonexpendable equipment furnished, the invoice was to show only expendable items. To protect the seller, the total amount pricewise of the goods furnished was to equal the amount of the order approved by the central agency. So far as it appears from the record, no profit, other than the supplier’s legitimate profit was made by anyone.
The irregular transactions were discovered during a regular audit, and an inspector general was ordered to conduct an investigation of the misapplication of funds. The accused was hostile to the investigation and the officer selected. Accordingly, he was not at all cooperative, and, to say the least, by evasive and quibbling tactics he obstructed and annoyed the investigator. As a result of his testimony during the investigation, he was charged informally with irregular dealings with property and the giving of false and evasive answers to an inspector general. He was offered an opportunity to accept punishment under Article 15, Uniform Code of Military Justice, 50 USC § 571, and when he did not demand a court-martial, he was given a reprimand and fined $200.00. He appealed the sentence to higher headquarters, and the commanding general of that headquarters struck from the record all reference to false statements, but he refused to set aside the punishment. Accused demanded a court of inquiry, and when this request was refused, he petitioned for reconsideration. The subsequent court-martial was ordered only as the result of accused’s persistent demand that some further forum hear his complaints and pass upon the merits.
II
The first error assigned is that accused was denied a fair trial because trial counsel’s final argument exceeded the bounds of fair comment. During his closing argument, counsel for the Government called the accused a phy-chopathic liar and a schemer who would falsify to anyone. It is undisputed that he referred repeatedly to the accused as a liar, and defense counsel calls our attention to the fact that the portion of trial counsel’s remarks shown on page 1005 of the transcript reflect that the appellation was applied some twenty times. Appellant insists the statements were maliciously unfair, and were made solely to play on the passions and prejudices of the court members. He seeks to bolster his argument by asserting the court members found the accused guilty after deliberating only thirty-five minutes in a complicated trial which took over three weeks to complete. He also asserts the severity of the sentence imposed shows the court was prejudiced by the remarks.
The Government, on the other hand, contends trial counsel did not overstep the bounds of propriety; that construing his argument in a light favorable to the accused, it shows no more than an inartful choice of denunciatory words; and that, assuming he exceeded the limits of fair comment, his conduct does not call for reversal because the evidence of guilt is compelling.
Perhaps a reference to a few of the general principles operating in- this field will be helpful. Trial counsel has the duty of prosecuting a ease, and he is permitted to comment earnestly and forcefully on the evidence, as well as on any inferences which are supported reasonably by the testimony. He may strike hard blows, but they must be fair. Berger v United States, 295 US 78, 55 S Ct 629, 79 L ed 1314 (1935). If his closing argument has a tendency to be inflammatory, we must make certain it is based on matters found within the record. Otherwise it is improper. The issues, facts, and circumstances of the case are the governing factors as to what may be proper or improper. United States v Socony-Vacuum Oil Co., 310 US 150, 60 S Ct 811, 84 L ed 1129 (1940). We, therefore, must evaluate [134]*134the argument in the light of this record.
In the case at bar, trial counsel was prosecuting an accused charged with false swearing, or, to put it another way, the point in issue was whether accused had falsified with intent to deceive. The latter took the stand and flatly contradicted the Government witnesses. His answers to the inspector general and his testimony from the witness stand had to be measured for their truthfulness. When the making of a false official statement is the offense to be proven and there are facts to support the charge, trial counsel is within the limits of reasonable persuasion if he calls the defendant a liar. Moreover, the posture of the evidence in this instance was such that either the witnesses for the Government or the accused were falsifying, and the prosecutor had a right to argue that his witnesses were telling the truth and the defendant was prevaricating. Obviously, the crime charged plays a decided part in the thrust of counsel’s argument, and to deny the representative for the Government the right to call an accused a liar in a perjury or closely allied case, would seal his mouth to a point where he could only identify the crime by the loftiest of words. While we do not encourage the use of denunciatory comments, they may be used when they describe accurately the crime committed and when their use finds support in the testimony. Here, for the most part, the comments were well within the limits set out above.
Perhaps the portion of the argument which approaches the border of impropriety may be found in trial counsel’s statement that he did not cross-examine the accused because he disliked listening to lies being uttered from the witness stand. Obviously, that was not a comment on the evidence, nor was it reasonably inferable from any testimony uttered by any witness. However, it was precipitated by defense counsel’s challenging criticism of the prosecuting attorney’s failure to cross-examine the accused. Matters which ordinarily are not the subject of comment may become relevant if they are opened up by defense counsel. While we do not intend to create the impression that intolerant and inflammatory statements, or passionate appeals to prejudices and passion not inherently woven into, or necessarily called for by the nature of, the offenses should be countenanced, we mention the fact that defending counsel do take some risk. If they seek to make capital out of asserted failures on the part of the prosecution, they must be prepared to be met by an explanation for the omission. There are numerous authorities to the effect that a prosecutor’s reply to arguments of defense may become proper, even though, had the argument not been made, the subject of the reply would have been objectionable. The rule is set out in Ochoa v United States, 167 F 2d 341 (CA9th Cir) (1948), in the following language:
“Appellant next asserts that the prosecutor’s closing argument to the jury was prejudicially improper. It is contended that certain of the prosecutor’s remarks were without basis, inflammatory, or outside the record. Appellant particularly assails comments made by the prosecutor on the subjects of capital punishment and life imprisonment, on the Government’s failure to produce another alientist, and on appellant’s possible future conduct. These remarks were directly responsive to assertions relative thereto which were made in the argument of appellant’s counsel. Though the argument is to be based upon the evidence or reasonable inference therefrom, it may also include statements in reply to those made by opposing counsel which might otherwise be improper. Rice v. United States, 2 Cir., 35 F. 2d 689, 695; Malone v. United States, 7 Cir., 94 F. 2d 281, 288; Baker v. United States, 8 Cir., 115 F. 2d 533, 544.”
There is another reason why counsel for the defense must fail on this first assigned error. We can assume, for the sake of argument, that trial counsel’s repetitious remarks about the accused being a liar went somewhat beyond the bounds of fair comment. [135]*135We then must determine whether such error requires reversal.
In Dunlop v United States, 165 US 486, 17 S Ct 375, 41 L ed 799, 803 (1897), the court said: “If every remark made by counsel outside of the testimony were grounds for a reversal, comparatively few verdicts would stand.” Defense counsel do not dispute that principle, but they assert it does not apply, as this was a flagrant abuse of discretion and the argument improperly inflamed the court members against the accused. The answer to that assertion is that trial defense counsel must have concluded they were not so grossly improper as counsel did not so much as object to any of the remarks. It is a little difficult for us to find misconduct which compels a reversal when it purportedly arises out of an argument which had so little impact on defense counsel that they sat silently by and failed to mention it to the appropriate court-martial official at the time of trial.
In Langford v United States, 178 F 2d 48, 53 (CA9th Cir) (1949), cert den 339 US 938, the court stated: “an accused waives his right to assert such an error on appeal by failure to object at the time the improper remarks are made . . . [citing authorities.]”
The failure to object in the trial arena where the harmful effects, if any, might be ameliorated by prompt instructions from the law officer, normally raises the doctrine of waiver and precludes an accused from asserting a claim of error on appeal. However, that principle is not usually applied if the abuse of discretion is so flagrant as to charge the law officer with a duty to stop the discourse sua sponte. An accused is entitled to a just trial, free of unfair appeals to passions and prejudices, and the law officer must direct the proceedings to that end. But we are unable to see how the prosecution’s remarks in this instance could have reached that low level. Not only did they fail to impress counsel present at the time they were made that they were objectionable, but, conceding they are harsh, they are not unsubstantiated by the record. It is to be remembered that trial counsel has some latitude in his comments and oratorical emphasis may be employed. We find support for that principle in Di Carlo v United States, 6 F2d 364 (CA2d Cir) (1925) where the following rule is expressed:
“. . . To shear him [the prosecutor] of all oratorical emphasis, while leaving wide latitude to the defense, is to load the scales of justice; it is to deny what has always been an accepted incident of jury trials, except in those jurisdictions where any serious execution of the criminal law has yielded to a ghostly phantom of the innocent man falsely convicted.”
Here the dramatic and oratorical denunciation colored the crime in issue, but the hue was within permissible limits. We are, therefore, convinced that this assignment of error must be overruled.
Ill
The second question requiring consideration is found in the following question: Did the law officer instruct the court correctly on the quantum of proof required in a charge of false swearing? The instruction over which the parties divide is this:
“I again invite your attention, also, to the discussion of false swearing which is paragraph 213 d (4) of the Manual for Courts-Martial beginning on page 386, and also to the cross-reference to paragraph 210 of the Manual with particular attention to the first sentence of the last paragraph of paragraph 210 appearing on page 376.
“We have heard counsel discussing the oath against oath rule, the requirement for corroboration. The rule is that the falsity of the allegedly perjured statement, this of course also includes false swearing, cannot without corroboration by other testimony or by circumstances tending to prove such falsity be proved by the testimony of a single witness.
“In considering the evidence you may, and naturally will, draw reasonable inferences and conclusions from the evidence, whether this evidence be a direct statement of fact, [136]*136or circumstances. You may not have direct proof of a fact, but you may have circumstances from which you are able to draw reasonable conclusions and deductions.”
Defense argues the instruction was thoroughly inadequate for the kind of corroboration required to support a conviction of false swearing; that the law officer merely pointed out the paragraph in the Manual; and that by paraphrasing only a short part of it, he committed error. When this argument is considered in relationship to the issue granted, it breaks into two parts. First, accused contends that the instruction is erroneous because circumstantial evidence alone is not sufficient to support a conviction of perjury. Second, the assertion is advanced that, assuming circumstantial evidence is sufficient for corroboration, the instruction is incomplete and inadequate.
The Government answers the first part of the argument by saying there is no rule in military law to the effect that circumstantial evidence is not sufficient to corroborate the testimony of one witness, where the allegation is false' swearing, citing United States v Gomes, 3 USCMA 232, 11 CMR 232, and we agree. In that case, we approved this quotation taken from State v McGee, 341 Mo 151, 106 SW2d 480 (1937):
“. . . The general rule followed in most jurisdictions, and in this State, is well stated in 48 CJ 905, § 173: ‘The corroboration may be by circumstantial evidence. The corroborating circumstances need not be proved by direct testimony specifically corroborating the testimony of the main witness, but may consist of proof of independent facts which together tend to establish the main fact, that is, the falsity of the oath, and which together strongly corroborate the truth of the testimony of the single witness who has testified to such falsity.’ See, also, State v. Hunter, 181 Mo 316, loc cit 335, 80 SW 955, loe cit 959, where this court quoted the following with approval: ‘ “The true principle of the law is this: The evidence must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence. The oath of the opposing witness, therefore, will not avail, unless it be corroborated by other independent circumstances. But it is not precisely accurate to say that these additional circumstances must be tantamount to another witness. The same effect being given to the oath of the prisoner as though it were the oath of a credible witness, the scale of evidence is exactly balanced, and the equilibrium must be destroyed by material and independent circumstances before the party can be convicted. The additional evidence need not be such as, standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose; but it must be at least strongly corroborative of the testimony of the accusing witness.” ’
Furthermore, in United States v Walker, 6 USCMA 158, 19 CMR 284, this Court, citing the Manual for Courts-Martial, United States, 1951, paragraph 210, had this to say:
“The Manual’s statement of the requirements of proof is consonant with the modern trend that perjury may be proved by circumstantial evidence.”
Those holdings answer effectively the first branch of this issue, and so we pass on to consider the second part of accused’s argument. It can be disposed of summarily. The paragraph referred to in the Manual by the law officer discusses the elements which must be proven to support a charge of false swearing, all of which were repeated in the instructions given to the court-martial. Additional intruetions on circumstantial evidence, intent, presumption of innocence, weight of the evidence, and other required subjects were read. Thus, the law officer gave the finders of fact the necessary elemental and statutory guideposts for their deliberations. We have some difficulty in following counsel’s argument, but apparently the incomplete[137]*137ness or inadequacy complained of must arise out of the law officer’s failure to instruct on accused’s hypothesis. We note a verbal request for an instruction on accused’s theory that circumstantial evidence will not suffice for corroboration, but that was denied properly. If it be contended that the instruction was otherwise incomplete and defense counsel desired further amplifying or clarifying instructions, he had a duty to make a request. In United States v Johnson, 3 USCMA 447, 454, 13 CMR 3, this Court said:
“. . . If the accused himself had any doubt as to the law officer’s meaning, it was his duty to request clarifying instructions, United States v. Long, 2 USCMA 45, 6 CMR 45, decided October 17,1952; United States v. Jenkins, 1 USCMA 329, 3 CMR 63, decided April 21, 1952. Of course, if the instruction was erroneous or misleading, defense counsel’s failure to object would not necessarily be fatal, but certainly the accused’s own evaluation of the instruction at the trial level may be considered in weighing its significance on appeal.”
Our holding that the instruction states properly the quantum of proof required by military law in this type of case requires us to find for the Government on this assignment of error.
IV
Before taking up the remaining assignments of error, we believe it advisable to restate certain principles of law governing the province of the court-martial and the board of review, and our power to review their findings. Both of those military bodies were delegated fact finding powers, but in granting powers to this Court, Congress limited us to matters of law. Without getting into an academic dissertation on an appellate court’s power to weigh facts for insufficiency as a matter of law — a question which is considered in each subsequent section — we call attention to the following principles which have been previously adopted by us. The court-martial in the first instance has the duty of determining the credibility.of the witness; the weight and sufficiency of the evidence, reasonable doubt as to guilt; the inferences to be drawn from the proven facts; the interest or bias of witnesses; and, in the final analysis, where the truth lies. The board of review has somewhat comparable powers, but it is admonished by the Code to give consideration to the fact that the court-martial saw and heard the witnesses. Accordingly, its powers are not quite so broad as the trial forum. However, when the case reaches us, we merely measure the evidence to the extent of determining whether it is sufficient as a matter of law to support the findings. In this particular instance, a great deal of appellant’s argument is no more than a supplication to us to overlook those principles and substitute our judgment for that of the triers of fact. By way of illustrations, he would have us determine whether the accused or those who challenged his testimony were telling the truth; he entreats us to reject some of the Government’s evidence as inherently improbable because it is disputed by other testimony; and he importunes us to disbelieve witnesses because he asserts they were biased. All of those matters should have been and were presented to the triers of fact, but they may not properly be urged before this Court. Therefore, his arguments in those areas are in vain, and we proceed to ascertain if the findings are, as a matter of law, sustainable.
V
Accused next contends that the evidence on all specifications is insufficient in that the Government failed to prove an intent to “willfully and corruptly” testify falsely. The definition of the crime is set out in Article 107 of the Uniform Code, and counsel’s assertion is just another way of saying that the evidence on the elements of “knowledge of the falsity” and “intent to deceive,” required by that Article, is inadequate to support the findings. The contention must be rejected because the evidence, both direct and circumstantial, so adds up in quantity and quality as to be sufficient to permit the court to find the necessary elements beyond a reasonable [138]*138doubt. Usually, the intent of a person cannot be proven by direct and positive evidence. It is a question of fact to be proven, like any other fact, by acts, conduct, and circumstances.
Here the accused was enmeshed in irregular dealings in Government property and money. His operations were being scrutinized officially, and he knew not the degree to which the Government would pursue the investigation. He was determined to obstruct the inquiry, and if he could conceal the extent of his participation he would reduce the chances that he would be the subject of any punitive measures. True it is that he contends he had no motive to falsify because he had accepted respon-sibilty, but, assuming that to be the case, the full picture is not developed, as his acceptance of accountability was far from being total and complete. The investigation had for its purpose not only the fixing of guilt, if any, but also a complete probing of the method of operation and the extent of the irregularities. Most certainly, the accused could intend to deceive if he falsified to throw the investigator off the scent before he had completed his mission. Several witnesses furnished evidence that accused’s statements were in conflict with the true situation, and when that is considered with the inferences which we have shown can be drawn from other testimony, it is readily ascertainable that the court-martial was supplied with a substantial base to infer that accused knowingly falsified with intent to deceive.
The accused seeks to buttress his claim on this facet of insufficiency of evidence by contending that there is inconsistency in the court’s finding of not guilty as to specification 4 and guilty as to specification 5. Since both specifications involve statements to the effect that accused did not contact the German firms regarding substitutions, his counsel reasons that they are fatally at variance. Assuming they are inconsistent, a finding of not guilty on the fourth specification is not tantamount to a finding that accused was not guilty of the offense alleged in the fifth specification, because the court had found he lacked knowledge of the falsity and intent to deceive. It is not beyond the realm of probability to conclude that the members of the court could have acted gratuitously in voting not guilty as to specification 4. In Dunn v United States, 284 US 390, 393, 52 S Ct 189, 76 L ed 356, 358, 359 (1932), the Supreme Court said:
“Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment ... As was said in Steckler v. United States (C. C. A. 2d) 7 F. (2d) 59, 60:
‘The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’ ”
Furthermore, when closely analyzed, the findings are not inconsistent because a separate false statement was set out in each specification. The gist of specification 4 was accused’s statement that he did not remember if he had contacted the German firms relative to the substitutions. In specification 5, he is charged with having denied that he had contacted the firms concerning the substitutions, but having asserted that Mr. Blaauw had. If the finders of fact concluded to reason closely, they could have believed him when he said he did not remember, and yet have concluded that he falsified when he later categorically denied making the contacts. The findings can be reconciled on that theory, if need be, because accused either remembered or he did not remember. If he did not honestly remember, he could not truthfully deny that he contacted the German firms.
. VI
The next issue involves the question of whether the evidence is suf ficient, in law, to support a finding that accused falsified when, in answer to a question, he [139]*139stated: “I could not direct that the substitutions be made, because I don’t know what was on those lists.” If the court-martial members believed the Government witness, and the findings establish they did, the evidence is ample. As we interpret the record, the accused’s response was clearly proven to be false. Mr. Blaauw and Lieutenant Heatherly stated under oath that they were directed by the accused to arrange for the substitutions. The former further stated that, prior to the preparation of the lists, accused told him to substitute for expendable supplies such items as machine shop tools, measuring instruments, tool grinders, lightning arrest-ers, and other items. Lieutenant Heath-erly testified that he showed the list prepared by Mr. Blaauw to the accused, who told him to join with Mr. Blaauw and contact the German suppliers. Witnesses produced by the defense contradicted the prosecution witness, but that is of no serious moment, for any dispute between the witnesses merely created a conflict for the court-martial to resolve, and the resultant question of credibility was decided adversely to the accused. While accused complains that the Government witnesses were biased and prejudiced against him, that, too, was decided by the court below. When those matters are cast aside, the testimony of the two men is clearly sufficient to show the accused testified falsely when he denied knowledge of what was on the lists.
VII
The next granted issue also involves the sufficiency of the evidence. In this assignment, accused con tends the record does not support the finding that accused made a false statement when asked about whom he had advised of their rights as possible codefendants or witnesses and he unresponsively replied: “I did not tell them to conceal anything.”
Mr. Blaauw testified that accused told him to tell the inspector general that they (accused and Blaauw) had only asked for prices of the substituted items and that the items had been delivered by mistake. This was a studied attempt to get the witness to conceal the original plan. Lieutenant Rubin stated that accused told him not to identify the lists and “that silence is golden.” There again is a statement to conceal essential information. The testimony of these witnesses shows the falsity of the quoted statement set forth in the proceeding paragraph. While counsel for the accused would have us determine the evidence should not be believed because it is inherently improbable, we find no basis for that assertion. The triers of fact were in the best position to determine which witnesses were telling the truth, and they elected to believe the Government witnesses we have mentioned. Their testimony is mutually corroborative, and it is sufficient to show the accused falsified when he stated under oath that he did not tell them to conceal any information.
VIII
Lastly, left for consideration is another question concerning the sufficiency of the evidence to support the third charge of false swearing. The specification alleged the accused falsified when he denied he contacted any of the German firms relative to the substitutions involved in the irregular procurement procedure. The precise question and answer were these: “Did you ever contact any of the German firms relative to substitutions of these items?” “I didn’t, but Mr. Blaauw most certainly did.”
It appears to us that accused is seeking to have us forsake substance to play on words. The inspector general, as indicated by his line of questioning, was obviously referring to a business connection when he used the word “contact.” The latter part of the answer indicates the accused did not misunderstand the question. To support the allegation of falsity, the Government produced a Mr. Schulenburg, a representative of one of the German firms, who testified that he spoke to accused on two occasions about the nonexpendable items to be substituted. The first was during a courtesy call, and the other call was made to clear up the question of the delivery of the items. Mr. Werch-[140]*140mann, a representative of another German firm, testified he also had discussed this irregular procurement procedure with accused. Mr. Blaauw corroborated Mr. Schulenburg’s testimony relating to the discussion about substitutions which the latter had with accused. It is no answer to say, as does the accused, that he did not take the first step to initiate the meeting, and, therefore, the answer is not false for the reason that the other parties contacted him, he did not contact them. That is placing an unusual and unrealistic meaning on the term. Here, when considered in context, the word was used in the ordinary sense, and asked whether the accused had been in touch with any of the firms. While the answer is characterized by accused as being merely evasive, we believe the court-martial could find reasonably that it went further and amounted to a prevarication.
IX
In connection with all of the various issues, we have not overlooked accused’s fervent plea that his ac tions in demanding a court-martial trial prove his innocence. Undoubtedly, that act smacks of an honest belief in his cause, but it does not compel .a reversal of the findings. At the time of his demand, he was aware of the fact that he must pit his credibility against that of his subordinates. Sometimes an individual fails to evaluate his own conduct as others might consider it. Sometimes he overestimates his power to persuade others that he has been the victim of intrigue by his associates. Sometimes he takes a calculated risk and loses. We, of course, cannot know with certainty the mental processes which caused the accused to demand what turned out to be his own conviction, but we do know he was given a fair trial.
While we might have reached a different conclusion had we been members of the court-martial, we now must view the evidence under different conditions. In United States v Strong, 1 USCMA 627, 637, 5 CMR 55, we said:
“. . . It is universally recognized that the weight of the evidence and the credibility of witnesses is a matter for the triers of fact to determine. See Manual for Courts-Martial, United States, 1951, paragraph 74a.”
Our examination of the record reveals the court-martial determined the issues under proper instructional guidance and without substantial error. We must, therefore, affirm the decision of the board of review. It is so ordered.
Judge Ferguson concurs.