
    UNITED STATES, Appellee v RAYMOND F. COLE, Fireman, U. S. Navy, Appellant
    9 USCMA 155, 25 CMR 417
    No. 10,831
    Decided April 11, 1958
    
      Lieutenant (jg) Joseph A. Calif ano, Jr., USNR, and Commander Charles Timblin, USN, were on the brief for Appellant, Accused.
    
      Commander Craig McKee, USN, and Commander Louis L. Milano, USN, were on the brief for Appellee, United States.
   Opinion of the Court

PER CüRIAm:

The accused was found guilty of larceny, in violation of Article 121 of the Uniform Code of Military Justice, 10 USC § 921, by a special court-martial. After intermediate appellate review, we granted review upon three issues. The third concerns an instruction by the president to the effect that the general intent requisite to all crimes may be presumed not only from a wrongful overt act, but also from a failure to act, whether such failure be intentional or negligent.

The Government concedes that the instruction is erroneous and prejudicial, and our examination of the record indicates that the concession is appropriate. See United States v Lampkins, 4 USCMA 31, 15 CMR 31; United States v Downard, 6 USCMA 538, 20 CMR 254; United States v Connell, 7 USCMA 228, 22 CMR 18.

The decision of the board of review is reversed. The record of trial-is returned to The Judge Advocate General of the Navy. A rehearing may be ordered.  