(dissenting):
I dissent. To my mind, the problem raised in this case is quite unlike those found in either United States v. Lucas (No. 7), 1 CMR 19, decided November 8, 1951, or United States v. Clark (No. 190), 2 CMR 107, decided February 29, 1952. In Clark, the accused was found guilty of a lesser included offense as to which no plea of guilty had been entered and no charge had been given. Here the accused pleaded guilty to the lesser offense, but was convicted of the greater one alleged in the specification and on which the court had been instructed. The accused in Lucas was convicted, without instruction thereon, of an offense to which he had pleaded guilty, whereas in the case at bar there was no such plea as to the offense found by the court to have been committed by the accused.
This Court has held repeatedly that the law officer must instruct the members of the court-martial on the elements of all lesser included offenses fairly raised by the evidence as alternatives to that charged. United States v. Clark, supra; United States v. Williams (No. 251), 2 CMR 137, decided March 14, 1952; United States v. Roman (No. 191), 2 CMR 150, decided March 19, 1952; United States v. Drew (No. 422), 4 CMR 63, decided July 23, 1952; United States v. Banks (No. 382), 4 CMR 71, decided July 24, 1952; United States v. Moreash (No. 715), 5 CMR 44, decided August 27, 1952.
A careful reading of the majority opinion has failed to communicate to me with definiteness whether my brethren intended to hold that, in' view of the posture of the pleadings in this case, the law officer did not err in omitting to instruct on the offense of wrongful appropriation, or that their conclusion was' that, although error was present, it did not materially prejudice the substantial- rights ■ of the accused. However, I am inclined to believe with reasonable assurance that they concede *170error, but deny prejudice. For myself, I am sure that the law officer’s failure to charge as to the lesser included offense constituted error. On the basis of the facts as reported in the opinion of the Court, together with those omitted therefrom, I entertain no doubt that the possibility of guilt of wrongful appropriation was fairly raised as a reasonable alternative to the larceny charged, and that the court-martial should have been instructed thereon. This was not done. It now becomes necessary to inquire whether this imperfection prejudiced the accused — that is whether there was a fair risk of confusion on the part of the court’s members as to courses open to them under the law and the facts. I think prejudice was indeed present, for I cannot believe that there was not more than a reasonable likelihood of confusion, uncertainty and downright want of information in the court.
I am unable to derive satisfaction from the fact that the accused, Glover, had pleaded guilty to wrongful appropriation — -for nowhere in the record can I perceive that it was brought home to the members of the court.that they might properly return a finding of guilty of the lesser offense. Certainly, the instructional failure was not cured through the action of the law officer in giving the standard instruction to the effect that “if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no doubt.” This Court expressly stated in United States v. Clark, supra:
“One of the standard instructions required to be given to the members of the court-martial is to the effect that if there is reasonable doubt as to the degree of guilt, the finding must be in the lesser degree as to which there is no doubt. Without some guidance or help from the law officer as to the elements of the lesser included offenses, it is difficult to determine how the members of the court-martial could properly apply that instruction. If the differences in the crimes are not given to the court, and only the most serious offense is defined, there are no guideposts, and no limits, to help the court delineate the included offense.”
It is even possible that the court in this case concluded, from the law officer’s refusal to accept accused’s plea of guilty to wrongful appropriation, that they could not properly' return a finding of guilty of that offense. I am not permitted to guess how much its members know of court-martial proceedings. Therefore the presence of the plea might well have operated to produce a result quite the reverse of that ascribed to it by the majority. Conceding that the only issue at the trial as between prosecution and defense was the intent of accused, this is much too little. The record must reflect that the members of the court understood that this was the only issue. United States v. Johnson (No. 498), 4 CMR 128, decided August 7, 1952. Perhaps the members of the court of their general knowledge, or qua officers of the military establishment, understood fully that wrongful appropriation was the only lesser offense included within the larceny charged. However, we have no sort of assurance that that was so. This supposititious knowledge on their part may not be resorted to for the purpose of curing the overt defect in the instructions. United States v. Soukup (No. 533), 7 CMR 17, decided January 23, 1953.
The majority makes much of the fact, that, prior to the taking of testimony, trial counsel read from the Manual on the subject of larceny, and added thereto certain comments of his own which operated to isolate “intent” as the sole issue in the case under the pleadings. It is even stated that “this was a correct statement of the law and accepted as such by everyone connected with the trial.” I can only inquire into the source of this assurance of acceptance. Certainly I am wholly without it. The members of the court-martial, I am sure, are enjoined by the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951, to take their law from no court agency save the forum’s “judge.” It is the specific duty 'of the law officer *171to furnish them with this technical information — and as much of it as is required in the case under the facts and the law, including the decisions of this Court. This duty he cannot be permitted to evade through reliance on conduct of other personnel of the tribunal — particularly that of a functionary whose necessary and proper partisanship is recognized by all, and who spoke during a stage of the trial considerably removed in time from the court-martial’s deliberations on findings.
The net of all this- is that we cannot possibly say with any sort of certainty that the members of the court-martial knew that which the law officer and my colleagues know so well about the law applicable to the case at bar. The majority opinion contains an elaborate and technically convincing logico-legal argument by force of which', it is asserted, the court could not conceivably have failed to recognize intent as the case’s single issue. This portion of the opinion is impressive and tightly reasoned. This is its principal defect: it is much too tightly reasoned. If I could suppose that the members of the court-martial were as accomplished in military law, and as accustomed to legal modes of thought as my two learned colleagues, 1 would be without fear. However, I cannot suppose this, and I am thus afraid. In short, I believe that approval of the instructions questioned here is contrary to the decisions heretofore rendered by this Court. I believe too that the action of the Army board of review in affirming only so much of Glover’s sentence as finds him guilty of wrongful appropriation was eminently proper.