Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused was convicted of the larceny of two money orders belonging to his roommate, and sentenced to a dishonorable discharge and confinement at hard labor for one year. The question before us is whether a pretrial statement made by him was properly admitted in evidence.
Sergeant First Class W. L. Koski, the accused’s roommate, testified that on July 31, 1958, he purchased two postal money orders — one for $53.50 and the other for $14.00 — which he intended to mail for payments due on two loans. He placed the money orders in the top compartment of his wall locker. On August 5, he discovered they were missing. That same day, the accused purportedly saw the money orders on the floor of the' corridor at the water fountain outside the room, just as Specialist Edmonds, a friend of his, was [202]*202“coming up the hall.” The accused picked up the money orders and said, “Gee, look what I found.” He put the instruments into his pocket. His later actions are explained in the following excerpts from his testimony:
“Q. When you first picked up these money orders what did you plan to do?
“A. I planned to find out who the owner was as soon as I came back from Baltimore.
“Q. Did you ask anybody who the owner was?
“A. Yes, sir. As I was going down the steps there was 3 or 4 fellows and I asked if they heard of anybody that lost them. They said no.
“Q. What did you tell Specialist Poole?
“A. As we were going into Baltimore I stated somebody lost the money orders and as I was going in and I owed this car company a car payment I figured whoever lost them —I could keep them. They was just as good as money. When we got to Baltimore I went to the car lot first and talked to him and he said he wanted his money. I took my car to the garage first and we walked back to the bank. That’s where I cashed ■one money order for $53.50.
“Q. Did you sign your name to it?
“A. Yes, sir, I signed my name to it.
“Q. What did you say you figured ■on the way to Baltimore?
“A. As I was going in, this fellow had said he needed his money for the car payment and I hadn’t the money and I figured I had money orders and losers weepers, finders keepers.
“Q. And when you walked downstairs you asked 3 or 4 people if they lost the money orders, is that correct?
“A. Yes, sir.
“Q. Do you know who these 3 or 4 people were?
“A. No, sir, they were just standing there reading the bulletin board. Someone in the crowd said no so I left.
“Q. Did you go to the orderly room to inquire?
“A. No, sir.
“Q. Who is ordinarily billeted in the area where you found the money orders?
“A. There was Sergeant Sanders and Sergeant Moore sleeping next to me.
“Q. Generally, is that the area where NCOs are billeted?
“A. Yes, sir, that’s right.
“Q. Individual rooms, two to a room?
“A. Yes, sir.
“Q. Did you inquire of any of these NCOs in that area if they had lost or missed the money orders?
“A. No, sir, they were not there at the time. They were having formation.
“Q. Did you attempt to find them at all?
“A. No, sir.
“Q. When did you form this finders keepers attitude?
“A. I figured as I was going to Baltimore, I needed the money and I figured, what the heck, it was just as good as gold.
“Q. You had no money at the time?
“A. I had a couple of dollars, sir.”
The accused’s trial testimony is substantially the same as a pretrial statement made by him, which was admitted in evidence over defense objection. The defense contends the testimony is different in a material respect from the statement. At trial, the accused said he kept the money orders because he “figured . . . losers weepers, finders keepers.” In the pretrial statement the accused admitted that he realized he was “doing wrong” when he cashed the money orders as his own, but he “needed the money” so he “took a chance.” In his testimony, the accused denied the truth of that statement. He said his answer was changed by one of the agents who interrogated him because he claimed that “the Army wouldn’t go along” with his “Finders keepers, losers weepers” statement.
It is arguable that the accused’s testimony also shows clearly he knew it was wrong to cash the money orders; and it does not, as contended by appel[203]*203late defense counsel, amount to a defense of an honest belief by the accused that he had the right to keep the money orders because they were lost property. The accused admitted each of the money orders had a serial number on it; that on its face, it showed it was issued by the Ft. George G. Meade post office; that he knew this was the only such office on the post. He also admitted his first thought was to find the owner, and he even made some inquiries for that purpose. Then he “figured, what the heck,” he had the money orders which were “just as good as gold,” so he might as well pay his debts and let the loser weep. There is no indication whatever in this account of his actions and thoughts to show the accused ever entertained an honest belief that, as the finder, he had a legal right to keep the property. See United States v Sims, 5 USCMA 115, 17 CMR 115; 52 CJS, Larceny, § 26. In other words, the accused’s testimony tends to show he knew his retention of the money orders was wrong. However, we need not make a closer examination of the accused’s testimony. Instead, we reach the issue specifically presented by the accused’s petition for review. As to that, we are satisfied there is no evidence to support the defense contention that the pretrial statement is inadmissible because the accused was deprived of his right to consult counsel.
Chief Warrant Officer G. L. Bedford testified he was a Criminal Investigations Detachment agent. On December 3, 1958, he interrogated the accused about 9:00 a. m. in the presence of R. E. O’Donnell, a Post Office Department inspector. He informed the accused he was suspected of cashing money orders which did not belong to him, and advised him he did not have to make “any statement whatsoever,” but if he did, it could be used against him in a court-martial proceeding. He then had a discussion with the accused. After the discussion, he prepared a typewritten statement which the accused read and signed.
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused was convicted of the larceny of two money orders belonging to his roommate, and sentenced to a dishonorable discharge and confinement at hard labor for one year. The question before us is whether a pretrial statement made by him was properly admitted in evidence.
Sergeant First Class W. L. Koski, the accused’s roommate, testified that on July 31, 1958, he purchased two postal money orders — one for $53.50 and the other for $14.00 — which he intended to mail for payments due on two loans. He placed the money orders in the top compartment of his wall locker. On August 5, he discovered they were missing. That same day, the accused purportedly saw the money orders on the floor of the' corridor at the water fountain outside the room, just as Specialist Edmonds, a friend of his, was [202]*202“coming up the hall.” The accused picked up the money orders and said, “Gee, look what I found.” He put the instruments into his pocket. His later actions are explained in the following excerpts from his testimony:
“Q. When you first picked up these money orders what did you plan to do?
“A. I planned to find out who the owner was as soon as I came back from Baltimore.
“Q. Did you ask anybody who the owner was?
“A. Yes, sir. As I was going down the steps there was 3 or 4 fellows and I asked if they heard of anybody that lost them. They said no.
“Q. What did you tell Specialist Poole?
“A. As we were going into Baltimore I stated somebody lost the money orders and as I was going in and I owed this car company a car payment I figured whoever lost them —I could keep them. They was just as good as money. When we got to Baltimore I went to the car lot first and talked to him and he said he wanted his money. I took my car to the garage first and we walked back to the bank. That’s where I cashed ■one money order for $53.50.
“Q. Did you sign your name to it?
“A. Yes, sir, I signed my name to it.
“Q. What did you say you figured ■on the way to Baltimore?
“A. As I was going in, this fellow had said he needed his money for the car payment and I hadn’t the money and I figured I had money orders and losers weepers, finders keepers.
“Q. And when you walked downstairs you asked 3 or 4 people if they lost the money orders, is that correct?
“A. Yes, sir.
“Q. Do you know who these 3 or 4 people were?
“A. No, sir, they were just standing there reading the bulletin board. Someone in the crowd said no so I left.
“Q. Did you go to the orderly room to inquire?
“A. No, sir.
“Q. Who is ordinarily billeted in the area where you found the money orders?
“A. There was Sergeant Sanders and Sergeant Moore sleeping next to me.
“Q. Generally, is that the area where NCOs are billeted?
“A. Yes, sir, that’s right.
“Q. Individual rooms, two to a room?
“A. Yes, sir.
“Q. Did you inquire of any of these NCOs in that area if they had lost or missed the money orders?
“A. No, sir, they were not there at the time. They were having formation.
“Q. Did you attempt to find them at all?
“A. No, sir.
“Q. When did you form this finders keepers attitude?
“A. I figured as I was going to Baltimore, I needed the money and I figured, what the heck, it was just as good as gold.
“Q. You had no money at the time?
“A. I had a couple of dollars, sir.”
The accused’s trial testimony is substantially the same as a pretrial statement made by him, which was admitted in evidence over defense objection. The defense contends the testimony is different in a material respect from the statement. At trial, the accused said he kept the money orders because he “figured . . . losers weepers, finders keepers.” In the pretrial statement the accused admitted that he realized he was “doing wrong” when he cashed the money orders as his own, but he “needed the money” so he “took a chance.” In his testimony, the accused denied the truth of that statement. He said his answer was changed by one of the agents who interrogated him because he claimed that “the Army wouldn’t go along” with his “Finders keepers, losers weepers” statement.
It is arguable that the accused’s testimony also shows clearly he knew it was wrong to cash the money orders; and it does not, as contended by appel[203]*203late defense counsel, amount to a defense of an honest belief by the accused that he had the right to keep the money orders because they were lost property. The accused admitted each of the money orders had a serial number on it; that on its face, it showed it was issued by the Ft. George G. Meade post office; that he knew this was the only such office on the post. He also admitted his first thought was to find the owner, and he even made some inquiries for that purpose. Then he “figured, what the heck,” he had the money orders which were “just as good as gold,” so he might as well pay his debts and let the loser weep. There is no indication whatever in this account of his actions and thoughts to show the accused ever entertained an honest belief that, as the finder, he had a legal right to keep the property. See United States v Sims, 5 USCMA 115, 17 CMR 115; 52 CJS, Larceny, § 26. In other words, the accused’s testimony tends to show he knew his retention of the money orders was wrong. However, we need not make a closer examination of the accused’s testimony. Instead, we reach the issue specifically presented by the accused’s petition for review. As to that, we are satisfied there is no evidence to support the defense contention that the pretrial statement is inadmissible because the accused was deprived of his right to consult counsel.
Chief Warrant Officer G. L. Bedford testified he was a Criminal Investigations Detachment agent. On December 3, 1958, he interrogated the accused about 9:00 a. m. in the presence of R. E. O’Donnell, a Post Office Department inspector. He informed the accused he was suspected of cashing money orders which did not belong to him, and advised him he did not have to make “any statement whatsoever,” but if he did, it could be used against him in a court-martial proceeding. He then had a discussion with the accused. After the discussion, he prepared a typewritten statement which the accused read and signed. No threats, force, duress, or promises were used to get the accused either to make or to sign the statement. The interrogation lasted from about 9:00 a. m. to 12 Noon. On cross-examination, Bedford was questioned as to whether the accused had asked for a lawyer. All of his testimony on that point is as follows:
“Q [DC]. Did Kantner ever say, T don’t want to say anything until I talk to my attorney.’?
“A. He may have said something like that.
“Q. At the time did Mr. O’Donnell say, ‘We will just hand this over to the federal authorities’?
“A. No.
“Q [TC]. Now, Mr, Bedford, you stated that Kantner said something about he wouldn’t make a statement until he saw his attorney. Can you maybe clarify that a little for us, spell it out a little more for us?
“A. When I was talking with Kant-ner he was upset and he said, T am not sure I should say anything until I can see an attorney. I would like to get an attorney.’
“Q. At what point of the interview did he say this to you?
“A. This was well after we discussed it for a few minutes and I had advised him of his rights.
“Q. At any time did he ask to talk to an attorney?
“A. No.”
Postal Inspector O’Donnell directly corroborated Bedford, except that he could not recall any statement by the accused about a lawyer. At the end of this testimony, the prosecution offered the accused’s pretrial statement into evidence. Defense counsel objected, on the ground that the accused “asked for the service of a lawyer at the interrogation and he was not given the right to counsel.” Defense counsel was asked if he wanted to present additional evidence on the issue, but refused the opportunity. Trial counsel then argued that the accused had made an insufficient showing to support the claim of denial of counsel. The law officer thereupon overruled the objection and admitted the evidence. Later in his-testimony on the merits the accused said: “I was making the statement [about finders keepers, losers weepers] when he told me I was charged with [204]*204larceny. I told him I wanted to talk to a lawyer and that’s when he said, his exact words were, ‘This boy has been over the coals before. He knows what it is all about.’ ”
Ordinarily, the correctness of a ruling by the law officer is determined on the basis of the evidence before him at the time of the ruling. United States v Richard, 7 USCMA 46, 51, 21 CMR 172. Defense counsel, however, refer to the accused’s testimony as support for their argument, and for present purposes we may consider it part of the evidence relating to the issue. Except for the remark about the accused being “over the coals before,” the accused’s testimony coincides with Bedford’s. Both indicate that after some discussion about the alleged offense, the accused said he wanted to talk to a lawyer. What happened then?
We may infer that the accused did not in fact talk to a lawyer. But the question is why? There is absolutely no evidence that Bedford or anyone else told the accused he could not consult with a lawyer. Thus, the situation is distinguishable from that in United States v Gunnels, 8 USCMA 130, 23 CMR 354, relied upon by the accused. There, the evidence showed clearly that the accused was informed he was not entitled to consult with a lawyer. See also United States v Rose, 8 USCMA 441, 24 CMR 251; United States v Wheaton, 9 USCMA 257, 26 CMR 37. For all we know from the record of trial, the accused may simply have changed his mind when he heard the “over the coals” response to his statement about a lawyer; and he may have determined that his already-asserted claim of innocence would carry more weight if, by his action, he in effect said “well I really have nothing to hide, so I don’t need to talk to a lawyer before I t'alk to you.”
An accused has a right to consult with counsel, and law enforcement agents cannot deprive him of that right. If the accused contends he was deprived of or misinformed of his right to consult with counsel, there must be evidence to support the contention. Here, there is a fatal gap. The statement of a desire to talk to counsel is present, but there is no proof of a denial of the opportunity. The probability that the accused changed his mind is too logical and too strong under the circumstances of the case to be outweighed by the tenuous inference that he was deprived of counsel because three hours before he signed the written statement he said he wanted to talk to a lawyer. See United States v Cadman, 10 USCMA 222, 27 CMR 296. There is, therefore, insufficient evidence to show a denial of the right to consult counsel, and the law officer’s ruling is correct.
The insufficiency of the evidence to support the claim of a denial of counsel distinguishes this case from United States v Alaniz, 9 USCMA 533, 26 CMR 313. In Alaniz the staff judge advocate was of the opinion that the law officer had erred in admitting evidence of the results of a search. The evidence pertaining to the legality of the search was in conflict. Accordingly, we held that the convening authority’s action, predicated upon the review, presented a “factual determination” which was binding upon us. Here, the staff judge advocate made the following statement:
“Viewing the testimony as a whole, it appears that the accused had probably requested to be allowed to talk to an attorney but that he was not given the opportunity to talk to an attorney. For this reason, the pretrial statement of the accused was inadmissible. The law officer erred in admitting into evidence the written pretrial statement of the accused.”
The record, however, contains no evidence to support the quoted conclusion and we are not bound by it. See United States v Bishop, 11 USCMA 117, 28 CMR 341.
The decision of the board of review is affirmed.
Judge Latimer concurs.