Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused challenges the validity of his conviction of four charges, in violation of the Uniform Code of Military Justice.1 We shall consider the assignments of error in the order presented by appellate defense counsel.
First, it is contended that the evidence is insufficient to support the offense of larceny set out in specification 2, Charge II.2 The specification alleges that the accused stole $60.00 from Weaver’s Pawn Shop. Mr. Ted Atkins, the owner of the shop, testified for the prosecution. He said he had owned.the shop since February I960.3 One day, which he placed in August 1959, he went out to lunch leaving Mr. Weaver, the former owner, in the store. On his return he found a $60.00 check in the cash register. The check was drawn to Weaver’s Pawn Shop; it was dated September 11, 1959; and was signed “Bill Pruitt.” At the end of the day Mr. Atkins went through the cash register. There was a shortage of $60.00 which was “the amount of the check.” However, Mr. Atkins testified he did not remember whether the $60.00 check was the only check in the cash register that day, and he did not know whether the day’s tally of cash was s'hort or over, although there were days when “we’ve come up over, and we’ve come up short.” Mr. Atkins kept the check in his petty cash until “the first time . . . [he] had a chance to take it to the bank.” The bank refused payment. An ex-animation of the bank records by a bank official indicated no account in the name of Bill or Delmar Pruitt. Mr. Atkins further testified he did not know what was given for the check, if anything; and he had “absolutely no knowledge” of what transpired between the accused and Mr. Weaver. After payment on the check had been refused by the bank, he attempted to communicate with the accused, who had worked next door at a business establishment run by Mrs. Weaver, but his efforts were unsuccessful. Finally, another witness testified that she had seen the accused write his signature on checks and other documents, and she was “sure” the signature on the Weaver check was the accused’s. Mr. Weaver was not called as a witness. Apparently he was in a prison for violation of the liquor laws.
Guilt beyond a reasonable doubt may be established by circumstantial evi-dence as well as by direct evidence of the commission of the offense. United States v Wilson, 8 USCMA 329, 24 CMR 139. The board of review below held, and the Government contends here, that the “only reasonable inference” from the evidence is that the accused cashed the check. Appellate defense counsel maintain there are other reasonable alternatives which are wholly consistent with innocence. They maintain that considering the nature of the business conducted by Atkins, it was entirely possible the check was [325]*325given in payment of a pre-existing loan. Whether this is a reasonable alternative is of little consequence. More important, in our opinion, is the fact that the evidence is equally consistent with the idea that the accused gave Weaver a post-dated check on the understanding he would deposit the necessary funds to cover the amount before the due date. Thus, Atkins testified he found the check in his register in August, but the check itself is dated September 11. The accused worked next door for Mrs. Weaver, and there is evidence indicating he knew Mr. Weaver. Finally, Mr. Weaver had a substantial connection with the operation and management of the business and it would not be unreasonable for him to enter into such an arrangement with the accused. If this were the actual situation, the accused was not guilty of larceny, although he had no account in the drawee bank at the time. United States v Cummins, 9 USCMA 669, 26 CMR 449. Since an innocent explanation of the check is found in the evidence, guilt beyond a reasonable doubt is not established. United States v Lyons, 11 USCMA 68, 28 CMR 292; United States v Brown, 3 USCMA 242, 11 CMR 242.
In the second assignment of error, appellate defense counsel contend that the law officer erroneously prevented the accused from presenting evidence to support the defense of entrapment as to Charge I. The specification of that charge alleges that on September 15, 1959, with intent to deceive, the accused signed an official record known as emergency data form, knowing the record falsely represented that his wife resided in' Lawton, Oklahoma. The evidence relating to the charge is as follows: The accused married Edith Hall in North Carolina in December 1955 and they had a child in December 1956. The marriage was never terminated. At all times important to the charge Mrs. Hall and the child lived in Virginia. In January 1959 while stationed at Fort Sill, Oklahoma, the accused met Lonetia Jones. According to Miss Jones, she and the accused were married in Wichita Falls, Texas, in June 1959, by a justice of the peace, but she could not thereafter locate that official and had no formal record of the marriage. From the date of the marriage ceremony to September 1959, she and the accused lived together, and publicly held themselves out as husband and wife.
On September 14, 1959, the accused had a discussion with his company commander, Captain Bruner, which led to the accused’s completion of the emergency data record falsely representing that Edith Hall Pruitt and the accused’s daughter resided in Lawton, Oklahoma. Testifying by deposition, Captain Bruner said he received a phone call from the post chaplain’s office, advising him that the accused was “living with someone not his wife,” and requesting that he determine the “present status” of the accused’s emergency data card. Data cards had to be kept current, and it was one of the responsibilities of the commanding officer to see they were correct. Captain Bruner knew the accused’s card did not show his wife to be living in Lawton. Accordingly, he called in the accused to “determine the accuracy of this particular form.” He asked the accused specifically if his wife and daughter were in Lawton, and he received an affirmative reply. At that time he had no reason to suspect the accused of committing any offense. He also inquired as to the date of the accused’s marriage and was informed that it occurred in 1957; He told the accused the emergency data card showed the wife and child to be residing in Virginia and “he should have this corrected.”
Captain Bruner admitted his statement to the accused could be “interpreted as an order,” because a conversation between an officer and enlisted man “is normally interpreted that way.” The accused did not indicate whether he intended to comply with the order, but the Captain “assumed” he would because the card had to be corrected. After the accused left his office, Captain Bruner decided to call the Criminal Investigations Detachment to check into the “entire background”; to inquire “into the realness [of the marriage]”; and to investigate the possibility of illegal allotment, because the information was “improper on his data card,” and he felt “something was certainly not [326]*326proper.” The accused proceeded to the personnel office at group headquarters. There he signed a new emergency data form in which he represented, as noted above, that his wife and child resided in Lawton.
At trial, the accused took the stand to testify only in connection with Charge I. He further admitted, in response to Captain Bruner’s question whether he was living with a woman not his wife, that he said he was living with his wife in Lawton.
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused challenges the validity of his conviction of four charges, in violation of the Uniform Code of Military Justice.1 We shall consider the assignments of error in the order presented by appellate defense counsel.
First, it is contended that the evidence is insufficient to support the offense of larceny set out in specification 2, Charge II.2 The specification alleges that the accused stole $60.00 from Weaver’s Pawn Shop. Mr. Ted Atkins, the owner of the shop, testified for the prosecution. He said he had owned.the shop since February I960.3 One day, which he placed in August 1959, he went out to lunch leaving Mr. Weaver, the former owner, in the store. On his return he found a $60.00 check in the cash register. The check was drawn to Weaver’s Pawn Shop; it was dated September 11, 1959; and was signed “Bill Pruitt.” At the end of the day Mr. Atkins went through the cash register. There was a shortage of $60.00 which was “the amount of the check.” However, Mr. Atkins testified he did not remember whether the $60.00 check was the only check in the cash register that day, and he did not know whether the day’s tally of cash was s'hort or over, although there were days when “we’ve come up over, and we’ve come up short.” Mr. Atkins kept the check in his petty cash until “the first time . . . [he] had a chance to take it to the bank.” The bank refused payment. An ex-animation of the bank records by a bank official indicated no account in the name of Bill or Delmar Pruitt. Mr. Atkins further testified he did not know what was given for the check, if anything; and he had “absolutely no knowledge” of what transpired between the accused and Mr. Weaver. After payment on the check had been refused by the bank, he attempted to communicate with the accused, who had worked next door at a business establishment run by Mrs. Weaver, but his efforts were unsuccessful. Finally, another witness testified that she had seen the accused write his signature on checks and other documents, and she was “sure” the signature on the Weaver check was the accused’s. Mr. Weaver was not called as a witness. Apparently he was in a prison for violation of the liquor laws.
Guilt beyond a reasonable doubt may be established by circumstantial evi-dence as well as by direct evidence of the commission of the offense. United States v Wilson, 8 USCMA 329, 24 CMR 139. The board of review below held, and the Government contends here, that the “only reasonable inference” from the evidence is that the accused cashed the check. Appellate defense counsel maintain there are other reasonable alternatives which are wholly consistent with innocence. They maintain that considering the nature of the business conducted by Atkins, it was entirely possible the check was [325]*325given in payment of a pre-existing loan. Whether this is a reasonable alternative is of little consequence. More important, in our opinion, is the fact that the evidence is equally consistent with the idea that the accused gave Weaver a post-dated check on the understanding he would deposit the necessary funds to cover the amount before the due date. Thus, Atkins testified he found the check in his register in August, but the check itself is dated September 11. The accused worked next door for Mrs. Weaver, and there is evidence indicating he knew Mr. Weaver. Finally, Mr. Weaver had a substantial connection with the operation and management of the business and it would not be unreasonable for him to enter into such an arrangement with the accused. If this were the actual situation, the accused was not guilty of larceny, although he had no account in the drawee bank at the time. United States v Cummins, 9 USCMA 669, 26 CMR 449. Since an innocent explanation of the check is found in the evidence, guilt beyond a reasonable doubt is not established. United States v Lyons, 11 USCMA 68, 28 CMR 292; United States v Brown, 3 USCMA 242, 11 CMR 242.
In the second assignment of error, appellate defense counsel contend that the law officer erroneously prevented the accused from presenting evidence to support the defense of entrapment as to Charge I. The specification of that charge alleges that on September 15, 1959, with intent to deceive, the accused signed an official record known as emergency data form, knowing the record falsely represented that his wife resided in' Lawton, Oklahoma. The evidence relating to the charge is as follows: The accused married Edith Hall in North Carolina in December 1955 and they had a child in December 1956. The marriage was never terminated. At all times important to the charge Mrs. Hall and the child lived in Virginia. In January 1959 while stationed at Fort Sill, Oklahoma, the accused met Lonetia Jones. According to Miss Jones, she and the accused were married in Wichita Falls, Texas, in June 1959, by a justice of the peace, but she could not thereafter locate that official and had no formal record of the marriage. From the date of the marriage ceremony to September 1959, she and the accused lived together, and publicly held themselves out as husband and wife.
On September 14, 1959, the accused had a discussion with his company commander, Captain Bruner, which led to the accused’s completion of the emergency data record falsely representing that Edith Hall Pruitt and the accused’s daughter resided in Lawton, Oklahoma. Testifying by deposition, Captain Bruner said he received a phone call from the post chaplain’s office, advising him that the accused was “living with someone not his wife,” and requesting that he determine the “present status” of the accused’s emergency data card. Data cards had to be kept current, and it was one of the responsibilities of the commanding officer to see they were correct. Captain Bruner knew the accused’s card did not show his wife to be living in Lawton. Accordingly, he called in the accused to “determine the accuracy of this particular form.” He asked the accused specifically if his wife and daughter were in Lawton, and he received an affirmative reply. At that time he had no reason to suspect the accused of committing any offense. He also inquired as to the date of the accused’s marriage and was informed that it occurred in 1957; He told the accused the emergency data card showed the wife and child to be residing in Virginia and “he should have this corrected.”
Captain Bruner admitted his statement to the accused could be “interpreted as an order,” because a conversation between an officer and enlisted man “is normally interpreted that way.” The accused did not indicate whether he intended to comply with the order, but the Captain “assumed” he would because the card had to be corrected. After the accused left his office, Captain Bruner decided to call the Criminal Investigations Detachment to check into the “entire background”; to inquire “into the realness [of the marriage]”; and to investigate the possibility of illegal allotment, because the information was “improper on his data card,” and he felt “something was certainly not [326]*326proper.” The accused proceeded to the personnel office at group headquarters. There he signed a new emergency data form in which he represented, as noted above, that his wife and child resided in Lawton.
At trial, the accused took the stand to testify only in connection with Charge I. He further admitted, in response to Captain Bruner’s question whether he was living with a woman not his wife, that he said he was living with his wife in Lawton. He also admitted he provided the false information to the personnel record clerk, and that he signed the record knowing at the time his wife and child resided in Virginia. His excuse for" lying to Captain Bruner was that he “didn’t think it was any of . . . [the Captain’s] business”; and his reason for signing the record notwithstanding his knowledge of the falsity of the information was that he was “told to by the Company Commander.”
The personnel records clerk also testified for the defense. He confirmed the changes in the record made by the accused. He did not recall receiving any previous word that the accused would call to change the record, but “that afternoon or the next day,” he received a call from Captain Bruner “to pull the 93.” His testimony about that conversation provides the basis for the defense claim of error.
“Q. And did he tell you what the purpose was that you should bring it over?
“A. He said something about a court-martial, sir.
“TC: His answer calls for a conclusion. Of course, we object.
“DC: The defense’s theory is entrapment. What the defense is trying to show, of course, is that this document was simply used, and the necessary form, for Pruitt to go over there to make out the document, was simply a plan on the part of Captain Bruner to get this boy for one more offense, and we’re not showing the truth of the matter as to what Captain Bruner was going to use it for, but what his attitude at that time was as regard to the filling out of this document, and I’m not introducing it as the truth of it, but just that it was said.
“TC: Well, sir, the Government fails to see the relevancy as compared with the objectionable basis of the material for this reason, that the defense has failed to show, one, that this man was talking to Captain Bruner. This was relative to some reported telephone conversation. . . .
“LO: I think the objection will be sustained at this time. Now, if you want to redirect your questioning to this witness, you may do so; and, gentlemen, you will disregard the testimony of this witness as to who called him and what was said in that conversation by telephone.
[At this point the witness established his familiarity with Captain Bruner’s voice and that he knew the Captain was the other party to the telephone conversation.]
“Q. PFC Engled, after Pruitt left your office and you filled out the DD Form 93 with the information Pruitt supplied to you, what was the next thing that happened relative to that DD Form 93?
“A. Well, I got a telephone call from Captain Bruner to pull the DD Form 93.
“Q. And did he tell you what he wanted that for?
“TC: Objection.
“LO: Well, he can answer, yes, or no.
“Q. Did Captain Bruner tell you what he wanted Pruitt’s DD Form 93 for?
“A. As evidence.
“TC: Objection, Your Honor. He’s starting to relate, rather than what he told you — yes, or no.
“LO: Just answer the question, what he wanted it for. Answer yes, or no.
“WITNESS: Yes.
[327]*327“Q. What did Captain Bruner tell you?
“TC: Objection.
“LO: Objection sustained.
“Q. You then took the Form DD 93 to Captain Bruner, is that right?
“A. Yes, sir.
“DC: I have no further questions.”
The Government and the accused disagree on whether the excluded evidence has probative value in regard to the accused’s defense of entrapment. In our opinion, it is unnecessary to consider the relevancy or materiality of the testimony. Entrapment stands as a bar to conviction for an offense, only if the idea for the commission of the offense does not originate with the wrongdoer. See United States v McGlenn, 8 USCMA 286, 24 CMR 96. Here, the accused admitted he lied to Captain Bruner about his wife’s place of residence, not because he was beguiled or induced to do so by a public official, but because he did not think it was “any of . . . [Captain Bruner’s] business.” Thus, the willingness and the design to falsify originated with and was then known only to the accused. He alone advanced the false information without solicitation and without inducement. As for Captain Bruner’s order, it was not to put false information in the emergency data record but to correct the old record to accord with the current facts which the accused had to him represented to be true. Consequently, the order was not to perform an illegal act, but to carry out a legal obligation. The evidence eompellingly shows that the accused was not enticed, induced, or compelled to lie and to falsify the emergency record data. Accordingly, we find no merit in the claim of prejudice in the exclusion of Engled’s testimony of his conversation with Captain Bruner.
Next, the accused contends that prejudicial error was committed in the admission of certain deposition testimony. The witness, a Criminal Investigations Detachment Agent, obtained a pretrial confession from the accused. In his deposition he identified as the accused’s confession a document attached as an exhibit. At trial, defense counsel objected to the admission of the deposition and its exhibit on the ground that before the deposition was taken the Government had forwarded to the witness documents to refresh his recollection of the case. Counsel maintained that the defense was entitled to be informed of the documents and to use them in cross-examination of the witness. The Government conceded it had sent a copy of the Criminal Investigations Detachment file to the witness. The file contained a report made by the witness, one of the agents who worked on the case, and statements upon which the report was based. The law officer ruled that in the absence of a showing that the witness used the documents “while he was testifying,” defense counsel had no right to see the documents for purposes of cross-examination. In the context of the defense claim of error, the ruling was correct.
A witness can refer to any document or memorandum that he desires before he takes the witness stand. If he testifies without the aid of any writing, there is no basis for contending the previous refreshment of the witness’ recollection curtailed the defendant’s right to cross-examine him. Counsel, of course, can ask any witness if he has refreshed his recollection of the case before taking the stand. If the witness replies in the affirmative, inquiry may be made into the means of refreshment; and if it appears the witness made an earlier statement about, or report on, the matter counsel may obtain the statement or report for possible impeachment. See United States v Heinel, 9 USCMA 259, 26 CMR 39; United States v Bergen, 6 USCMA 601, 20 CMR 317. Here, there was nothing to show use of the file while testifying, and there was no inquiry into the question of refreshment of his recollection.
Finally, in a series of assignments of error appellate defense counsel contend that no consideration should be given to certain admissions made by the accused in his sworn testimony, and that under our decision in [328]*328United States v Jacoby, 11 USCMA 428, 29 CMR 244, two depositions on written interrogatories were erroneously admitted into evidence. The arguments lack merit. First, the record of trial shows no circumstances from which it can reasonably be inferred that the accused was forced to testify to avoid the effect of incompetent evidence. Cf. United States v Sessions, 10 USCMA 383, 27 CMR 457. On the contrary, it very clearly appears that the accused testified and presented other evidence to support his claim of entrapment. Secondly, defense counsel specifically stated he had no objection to “the method in which” one of the two depositions was taken, and that his only objection to the second deposition was the Government’s failure to inform him that the Criminal Investigations Detachment file had been forwarded to the agent-witness.
For the reasons set out above, we set aside the findings of guilty of Charge II and the sentence. The record of trial is returned to The Judge Advocate General of the Army for submission to a board of review for reassessment of the sentence on the basis of the remaining findings of guilty.