Opinion of the Court
George W. Latimer, Judge:
The accused in this ease left his station at Camp Stoneman, California, on October 23, 1950, and surrendered to the Air Police, Brookley Air Force Base, Alabama, on December 22, 1950. He was tried by court-martial at Keesler Air Force Base, Mississippi, and was' found guilty of the charge of desertion in violation of Article of War 58. He was sentenced to a dishonorable discharge, to forfeit all pay and allowances to become due after the date of the order directing execution of the sentence, and to be confined for one year and six months. The reviewing authority approved the sentence but reduced the period of confinement to six months and suspended the dishonorable discharge. The Board of Review in the office of the Judge Advocate General of the Air Force sustained the finding and approved the sentence as reduced. The Judge Advocate General of the Air Force certified the case to this court in accordance with the provisions of Article 67 (b) (2) of the Uniform Code of Military Justice (Act of May 5, 1950, 64 Stat. 108, 50 U.S.C. §§ 551-736) for review.
The question certified for determination is whether, as a matter of law, the facts are sufficient to sustain the conviction.
In view of the fact that this is the first written opinion published by this court we deem it advisable to set forth a few well-known principles of law which govern the scope of our review, [3]*3We mention these principally to set a pattern for future cases which will reach this court by petition or certification.-
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. 24 C. J. S., Criminal Law, § 1880, states the general rule in criminal eases to be as follows.
“It is the policy of the law, sometimes éxpressed in constitutional and statutory enactments, that questions of fact shall be determined solely by the jury under the supervision of the trial court. Unless otherwise regulated by constitutional or statutory enactments, ordinarily, and statutes and constitutions sometimes expressly so provide, an appellate court reviews questions of law only and not questions of fact. The appellate court ordinarily has nothing to do with the weight of the evidence on which a conviction is based; the determination of the jury is ordinarily conclusive on review; the appellate court may not invade the province of the jury; it will not substitute its judgment for the judgment of the jury; and it hesitates to set up its judgment against that of the jury and rarely is justified in so doing.”
There cari be no question that the Congress of the United States intended to adopt this general rule and did not intend to extend review by this court to questions of fact. Article 67 (d) of the Uniform Code of Military Justice, swpra, expressly limits review by this court. Its wording is as follows:
“In any case reviewed by it, the Court of Military Appeals shall act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the board of review. In a case which The Judge Advocate General orders forwarded to the Court of Military Appeals, such action need be taken only with respect to the issues raised by him. In a cáse reviewed upon petition of the accused, such action need be taken only with respect to issues specified in the grant of reyiew. The Court of Military Appeals shall take action only with respect to matters of law.”
The second well-known rule of law is that if there is any substantial evidence in the record to support a conviction an appellate court, in the absence of other error, will not set aside the verdict. Almost every court of last resort has either adopted this rule or one which is in substantial agreement with it. Different ways of expressing the rule have been used, but few courts, if any, depart from its principle. In stating this rule 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, aré the courts-martial and the boards of review. Furthermore, this rule neither precludes those tribunals from drawing reasonable inferences from the evidence presented nor does it permit this court to set aside a conviction because we might have inferred differently.
The third principle of law is in substance that the evidence must establish beyond a reasonable doubt that the defendant is guilty of the crime charged. This rule likewise has almost universal application, but it must be borne in mind that the test is applied by jurors or the triers of the facts and not by a review or appellate court. We believe this rule to be aptly stated in the case of Craig v. United States, 81 F2d 816, 827. Judge Garrecht, Circuit Judge, speaking for the Circuit Court of Appeals, 9th Circuit, states as follows:
[4]*4“Here again we believe that the appellants, despite their correct statement of the rule elsewhere in their brief, have overlooked the true function of this court. To sustain a conviction, we need not be convinced beyond reasonable doubt that the defendant is guilty: it is sufficient if there is in the record substantial evidence to sustain the verdict.
“In Felder v. United States (C.C.A. 2) 9 F. (2d) 872, 875, certiorari denied, 270 U. S. 648, 46 S Ct 348, 70 L. Ed. 779, the court said:
“ ‘That we cannot investigate it [the testimony] to pass on the weight of the evidence is a point too often decided to need citation; nor can we, after investigation, use such doubts as may assail us to disturb the verdict of the jury. That reasonable doubt which often prevents conviction must be the jury’s doubt, and not that of any court, either original or appellate. [Cases cited.] Our duty is but to declare whether the jury had the right to pass on what evidence there was.’
“The correct rule was thus tersely phrased in Humes v. United States, 170 U. S. 210, 212, 213, 18 S. Ct. 602, 603, 43 L. Ed. 1011:
“ ‘The alleged fact that the verdict was against the weight of evidence we are precluded from considering, if there was any evidence proper to go to the'jury in support of the verdict. [Cases cited.]’”
A somewhat similar proposition is presented by the rule which states that the evidence must exclude every reasonable hypothesis of innocence. This, too, is a rule for the guidance of the trial forums. Undoubtedly, the courts-martial and boards of review should take cognizance of this principle, and we must assume they do. Having been instructed that the guilt of the accused must be established beyond a reasonable doubt and that if there is a reasonable doubt the accused is to be acquitted, it would appear to follow that a conviction would not result if there was a reasonable hypothesis of innocence.
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Opinion of the Court
George W. Latimer, Judge:
The accused in this ease left his station at Camp Stoneman, California, on October 23, 1950, and surrendered to the Air Police, Brookley Air Force Base, Alabama, on December 22, 1950. He was tried by court-martial at Keesler Air Force Base, Mississippi, and was' found guilty of the charge of desertion in violation of Article of War 58. He was sentenced to a dishonorable discharge, to forfeit all pay and allowances to become due after the date of the order directing execution of the sentence, and to be confined for one year and six months. The reviewing authority approved the sentence but reduced the period of confinement to six months and suspended the dishonorable discharge. The Board of Review in the office of the Judge Advocate General of the Air Force sustained the finding and approved the sentence as reduced. The Judge Advocate General of the Air Force certified the case to this court in accordance with the provisions of Article 67 (b) (2) of the Uniform Code of Military Justice (Act of May 5, 1950, 64 Stat. 108, 50 U.S.C. §§ 551-736) for review.
The question certified for determination is whether, as a matter of law, the facts are sufficient to sustain the conviction.
In view of the fact that this is the first written opinion published by this court we deem it advisable to set forth a few well-known principles of law which govern the scope of our review, [3]*3We mention these principally to set a pattern for future cases which will reach this court by petition or certification.-
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. 24 C. J. S., Criminal Law, § 1880, states the general rule in criminal eases to be as follows.
“It is the policy of the law, sometimes éxpressed in constitutional and statutory enactments, that questions of fact shall be determined solely by the jury under the supervision of the trial court. Unless otherwise regulated by constitutional or statutory enactments, ordinarily, and statutes and constitutions sometimes expressly so provide, an appellate court reviews questions of law only and not questions of fact. The appellate court ordinarily has nothing to do with the weight of the evidence on which a conviction is based; the determination of the jury is ordinarily conclusive on review; the appellate court may not invade the province of the jury; it will not substitute its judgment for the judgment of the jury; and it hesitates to set up its judgment against that of the jury and rarely is justified in so doing.”
There cari be no question that the Congress of the United States intended to adopt this general rule and did not intend to extend review by this court to questions of fact. Article 67 (d) of the Uniform Code of Military Justice, swpra, expressly limits review by this court. Its wording is as follows:
“In any case reviewed by it, the Court of Military Appeals shall act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the board of review. In a case which The Judge Advocate General orders forwarded to the Court of Military Appeals, such action need be taken only with respect to the issues raised by him. In a cáse reviewed upon petition of the accused, such action need be taken only with respect to issues specified in the grant of reyiew. The Court of Military Appeals shall take action only with respect to matters of law.”
The second well-known rule of law is that if there is any substantial evidence in the record to support a conviction an appellate court, in the absence of other error, will not set aside the verdict. Almost every court of last resort has either adopted this rule or one which is in substantial agreement with it. Different ways of expressing the rule have been used, but few courts, if any, depart from its principle. In stating this rule 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, aré the courts-martial and the boards of review. Furthermore, this rule neither precludes those tribunals from drawing reasonable inferences from the evidence presented nor does it permit this court to set aside a conviction because we might have inferred differently.
The third principle of law is in substance that the evidence must establish beyond a reasonable doubt that the defendant is guilty of the crime charged. This rule likewise has almost universal application, but it must be borne in mind that the test is applied by jurors or the triers of the facts and not by a review or appellate court. We believe this rule to be aptly stated in the case of Craig v. United States, 81 F2d 816, 827. Judge Garrecht, Circuit Judge, speaking for the Circuit Court of Appeals, 9th Circuit, states as follows:
[4]*4“Here again we believe that the appellants, despite their correct statement of the rule elsewhere in their brief, have overlooked the true function of this court. To sustain a conviction, we need not be convinced beyond reasonable doubt that the defendant is guilty: it is sufficient if there is in the record substantial evidence to sustain the verdict.
“In Felder v. United States (C.C.A. 2) 9 F. (2d) 872, 875, certiorari denied, 270 U. S. 648, 46 S Ct 348, 70 L. Ed. 779, the court said:
“ ‘That we cannot investigate it [the testimony] to pass on the weight of the evidence is a point too often decided to need citation; nor can we, after investigation, use such doubts as may assail us to disturb the verdict of the jury. That reasonable doubt which often prevents conviction must be the jury’s doubt, and not that of any court, either original or appellate. [Cases cited.] Our duty is but to declare whether the jury had the right to pass on what evidence there was.’
“The correct rule was thus tersely phrased in Humes v. United States, 170 U. S. 210, 212, 213, 18 S. Ct. 602, 603, 43 L. Ed. 1011:
“ ‘The alleged fact that the verdict was against the weight of evidence we are precluded from considering, if there was any evidence proper to go to the'jury in support of the verdict. [Cases cited.]’”
A somewhat similar proposition is presented by the rule which states that the evidence must exclude every reasonable hypothesis of innocence. This, too, is a rule for the guidance of the trial forums. Undoubtedly, the courts-martial and boards of review should take cognizance of this principle, and we must assume they do. Having been instructed that the guilt of the accused must be established beyond a reasonable doubt and that if there is a reasonable doubt the accused is to be acquitted, it would appear to follow that a conviction would not result if there was a reasonable hypothesis of innocence. Be that as it may, our function is not to seek out hypotheses of innocence, but to determine whether there is sufficient competent evidence to support the findings of guilty.
Having stated the general rules which limit this court to reviewing the facts to determine whether there is sufficient competent evidence to sustain the finding, we test the facts to ascertain whether the court-martial and the board of review could reasonably infer-an intent to desert from the evidence presented.
The accused was a member of the armed services and at the time of the claimed desertion he was carried as a member of the 2349th Overseas Replacement Squadron. He was stationed at Camp Stoneman, California, On the 23rd day of October, 1950, approximately four months after hostilities commenced in Korea he left his organization without authority and was unheard of until December 23, 1950. On that date he surrendered himself to the Air Police, Brookley Air Force Base, Alabama. His activities during the sixty-day unauthorized absence are unexplained, so the court-martial, the board of review, and this court are left without knowledge of many helpful elements which might have assisted in determining the true intent with which the accused departed his station and remained absent. This must be inferred from rather sketchy information as the government was content to rely on a paucity of facts and the accused was content not to explain the reasons for his absence.
The recited facts clearly establish that the accused committed one of two offenses, namely, desertion or absence without leave. Desertion is defined in the Manual for Courts-Martial, U. S. A. F., 1949 (applicable to this particular offense) as follows:
“Desertion is absence without leave accompanied by the intention not to return, . . .
Absence without leave is stated by that Manual to be failure of a member of the armed services to be at the place [5]*5where he is required to be at a time when he should be there.
A comparison of these two definitions discloses that the only real difference between the two is the intent with which the absence is attended. The question is thus narrowed to whether or not, from the facts quoted, the court-martial could reasonably infer an intent not to return to the service.
There are many authorities which announce the principle that ordinarily the question of intent is one of fact to be determined by the trial forum. The following excerpts are quoted from four United States Circuit Court of Appeals cases:
In Takahashi v. United States, 143 F. 2d 118 (C.A. 9th Cir.), at page 122, the court said:
“This brings us to the next point which is that there is no proof of criminal intent. Here again, unless . the court can say affirmatively that no circumstances were proven which might justify a finding of specific intent, the question was one of fact to be resolved by the jury. Questions of knowledge and intent are always questions of fact for the jury. Even though a judge would not have drawn the particular inference, he is not required to set aside a verdict if the jury could find that such an intent existed beyond a reasonable doubt.”
In Estep v. United States, 140 F. 2d 40 (C. A. 10th Cir.), at page 45, the Circuit Court of Appeals, 10th Circuit, stated:
“Of course- guilty knowledge or criminal intent is usually a factual question, peculiarly within the province of the jury, and is seldom provable by direct evidence, but must be inferred from the facts and circumstances which reasonably tend to manifest a mental attitude. Gates v. United States, 10 Cir., 122 F. 2d 571, 575; Aiken v. United States, 4 Cir., 108 F. 2d 182; Shell v. State, 184 Ark. 248, 42 S. W. 2d 19.”
In Stone v. United States, 113 F. 2d 70 (C.A. 6th Cir.), at page 74, the court said:
“Their real contention is good intent and good faith. Of course, in every agreement like these charged, there must be an intent on the part of the person who attempts or performs it, to do that which is unlawful. A question of intent usually resolves itself into one of fact. We ar-' rive at one’s intention by taking hold of certain circumstances, extraneous though they may be, and reasoning' out the purposes in doing the act. It is a mental process, but a man’s intention is really a question of fact to be arrived at by the trier of the facts in the exercise of reasonable discretion, after considering all the circumstances connected with the act charged. Whatever result reasonably flows from an act is presumed to have been intended by the person who did it.”
And in Aiken v. United States, 108 F2d 182 (CA4th Cir), at page 183, the court said:
“Fraudulent intent, as a mental element of crime, (it has been observed) is too often difficult to prove by direct and convincing evidence. In many cases it must be inferred from a series of seemingly isolated acts and instances which have been rather aptly designated as badges of fraud. When these are sufficiently numerous they may in their totality properly justify an inference of fraudulent intent; and this is true even though each act or instance, standing by itself, may seem rather unimportant. Analogies are always dangerous but sometimes rather helpful. So the old analogy of the rope seems in order: any single strand may easily be pulled apart, but many weak strands combined into a single rope may have such tensile strength as to resist the efforts even of a giant to tear it asunder.”
In analyzing the evidence for indications of intent we must assume in favor of the finding the existence of every fact fairly developed from the evidence and then determine whether such facts [6]*6are sufficient to support the finding. If the facts and circumstances reasonably justify an inference of intent to desert by the court-martial, our opinion that the circumstances might be reconciled with an intent to go absent without leave will not warrant our interference with the verdict. Were we authorized to find the facts we might conclude that the accused left his station intending to return. But this is a conclusion we cannot be permitted to reach as a court if the facts permit reasonable men to reach a contrary result.
In testing whether members of the court-martial could reasonably infer an intent to desert the service some of the facts are restated and some of the inferences which might be drawn are suggested. This country was engaged in hostilities in Korea, and the members of the court-martial would have ■ to credit the accused with .abysmal ignorance were they not to conclude that he was aware of' that fact. He was stationed at Camp Stoneman, California, which is just a short distance from the San Francisco point of embarkation. He was a member of an overseas replacement squadron, and as the name implies this is a unit for men of the service who are scheduled for overseas duties. We believe it reasonable for the court-martial to infer that the accused was well aware of this fact. He was absent for approximately sixty days and when he turned himself in he was some 2,000 miles further away from hostilities than he was when he absented himself from duty. " While he may not have been running away from the possibility of shipment overseas with intent not to return to his station, his acts and' conduct were consistent with this intent. With his reasons for absence unexplained a fair-minded person weighing ■ the facts would not be unreasonable in concluding that accused was seeking to avoid overseas-shipment and that his intent in leaving was to escape permanently from any such fate.
If the facts and circumstances outlined above compel a court-martial to infer no intent to desert, then the court-martial’s finding should be reversed. On the other hand, if- they permit some latitude in making a determination of a different intent, namely, intent to desert, then the decision must be upheld.
On page 199 of the Manual for Courts-Martial, U.S.A.F., 1949, the following statement appears:
“If the condition of absence without leave is much prolonged and there is no satisfactory explanation of it the court will be justified in inferring from that alone an intent to remain absent permanently. . . . The inference (of intent to desert) may be drawn from evidence proving that the accused . . . purchased a ticket for a distant point or was arrested or surrendered at a considerable distance from his station;
The foregoing quotation merely announces common sense inferences any rational person would draw and in drawing them the time- and space factors are influential. The longer the absence and the greater the distance from the unit the more reasonable the inference. The shorter the time and distance the less the inference is bottomed on reason. It is almost impossible to fix with certainty the minimum and maximum limits of these factors, but somewhere between the two is an area in which reasonable minds might differ. That area is one in which the members of the court-martial should be permitted to act without interference by this court. Accordingly, if the facts in this case (and we believe they do) place the question of intent in the area where members of the court-martial or board of review could reasonably come to a different conclusion, then it becomes a question solely for -their determination.
We do not quarrel with the rule of law that the government must prove beyond a reasonable doubt all essential elements of the crime and that the defendant need not prove his innocence. . However, there are reasonable inferences which members of a court-martial may draw from those facts which are established beyond a [7]*7reasonable doubt and if the accused is to escape the consequences of those inferences there must be some evidence in the record which makes the inference unreasonable or irrational. To escape an inference arising from possession of recently stolen property an accused might be required to explain his possession; and to escape an inference of intent to abandon the service from much prolonged absence from an overseas replacement squadron he might be required to explain his failure to' be present. This rule does not require the accused to testify in his own behalf. It merely affords him the choice of explaining what might be incriminating circumstances or allowing the court-martial to make reasonable inferences from his unexplained and out of the ordinary conduct.
It might be argued that the accused’s voluntary return to service makes it unreasonable for the members of the court-martial to infer an intent to desert. His return is a matter which weighs in favor of the accused but does not compel a finding that he did not intend to desert. It is only one strand in a rope of circumstances which the court-martial could take into account in drawing inferences of intent. There is no evidence in the record showing the reason for this return and the members of the court-martial could reasonably weigh this act in its relation to the others. It might evidence one of two mental states: Either that the accused did not intend to desert the service; or, that he, prior to his return, either through the importuning of friends, relatives, or others or by his own mental processes, had concluded to turn himself in, accept the consequences of his desertion and seek leniency from his immediate superiors. By suggesting these alternatives we merely seek to point up the rule that the court-martial had the right to resolve the issues of fact and make reasonable inferences even though one fact and one inference might have been favorable to the accused.
We do not want the views herein expressed to be considered as placing our stamp of approval upon a procedure which barely meets the minimum' standards required for a law suit. The trial of a criminal case involves the rights of both the accused and the government and is intended to be a forum where all material facts and eircumT stances reasonably available should be presented for consideration. Counsel for the government and accused should not be content to barely get by. They should strive to paint a fair factual picture so that substantial justice is afforded to all parties. It seems almost inconceivable'that evidence, concerning the activities of the accused during his absence could not have been readily obtained and presented. The Staff Judge Advocate in, his analysis obtained much information which would have been very helpful to the court. While it was obtained from the accused, had it been investigated and presented to the court .by either counsel the finding and sentence might have been different or the guilt of the accused more firmly established.
Conceding that under certain conditions difficulties are encountered by the services in obtaining evidence, this excuse should not be used to justify an inadequate presentation in other cases. The sentences meted out by courts-martial take away fundamental rights of the accused and place them in confinement for long periods of time. Knowing this, counsel should not be satisfied to meet minimum requirements but should prepare their cases well and strive to win fairly by presenting adequately and properly any relevant and material fact which is reasonably available.
We have considered the arguments of the parties on other points, but, holding as we do, they are immaterial.
The question certified is answered in the affirmative. There is substantial evidence to sustain the findings. Accordingly, the judgment of the board of review is affirmed.