United States v. Woods

BROSMAN, Judge

(concurring) :

It is difficult to deal effectively with a position the origins of which sound almost wholly in psychology, rather than in logic, in history, in analysis or in function. However, because of the far-reaching importance of the problem involved, and in light of what I regard as the substantial and varied misconceptions and confusions reflected in the dissenting opinion, I am impelled to set down some observations concerning “harmless error” legislation and the concept of general prejudice, together with their application to the situation involved in the instant case, as well as in United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952, and related cases. The nature and tenor of the dissent require also, I believe, an appraisal of Article 59 (a) of the Uniform Code of Military Justice, 50 USC § 646- — the military system’s “harmless error” provision — in terms of first principles. This will be attempted in a subsequent portion of this memorandum.

II

In the ease at bar the law officer participated in the deliberations of the court-martial in closed session regarding the sentence to be imposed on the accused — in fiat violation of the clear and unambiguous provisions of Articles 26(b) and 39 of the Code, 50 USC §§ 590 and 614. We have reversed and *207directed a rehearing through an invocation of the notion of general prejudice, and quite without reference to the possibility of specific prejudice to the accused flowing from the law offlcer’s wholly illegal actions and comments. Logically, of course, it is possible for a critic of this action either to accept the idea of general prejudice, while disapproving its application to the facts of the instant case — or to deny outright the validity; of the principle invoked and a fortiori its utility in the solution of the present problem. I experience little difficulty in discerning the warm adherence of the author of the dissenting opinion to the position reflected in each tine of the condemnatory fork. I shall, therefore, deal briefly with both — perhaps more at length with the latter than the first.

Ill

The approach embodied in the idea of general prejudice is in no sense novel in juristic thinking— although its denomination by this Court may have caused pain to those content with traditional labels and unaccustomed to search behind them. Its administration is cradled in the notion — no more and no less — that there are elements of the judicial edifice of such overwhelming importance that they may be deemed structural members. It follows that these must be preserved at all costs, and that, when weighed against other values of a relatively more transitory character, must prevail. Narrowing these observations to a point somewhat nearer the present problem, the following-may be said. Where conflict exists between the result in a particular case, on the one hand, and the service of a basic jural norm, on the other, then the former must give way to its competitor. To this effect is the following language from Dodd and Edmunds, Illinois Appellate Procedure, 1929 ed., pp. 373, 374:

“In considering the attitude of courts, of review toward errors in trial courts, it must, however, be borne in mind that the court of review has a two-fold function, (1) of making a prompt and proper disposition of the case before it, and (2) of enforcing substantial compliance with the statutory policy as to procedure in civil and criminal cases.' Occasionally a trial court will violate express and clearly-established statutory rights of a party; and the court of review, although feeling that' the error was not actually prejudicial in the' particular case, may decide that reversal is the only method of enforcing such compliance.” [Emphasis supplied]

For á further explicit description of this fully recognized phenomenon, see Hebert, The Problem of Reversible Error in. Louisiana, 6 Tulane Law Review 169, 170.

It is true that in recent years — and largely as a product of the growth of the statute as a form of law — the application of this approach has been related largely to legislative and constitutional provisions. That this does not at all derogate from the conception, its recognition and its practice, however, is so obvious as to dispense with exposition. Certainly I do not propose so to limit it — necessarily and as a general proposition. However, so far as the present case is concerned, the procedural element involved is statutory in character, wholly, directly and explicitly. Finally,, since by far the larger part of military law is founded on sources which are statutes, in a jurisprudential sense at least, virtually every procedural element — certainly every norm — with us is immediately statutory. I feel sure that even the dissenting judge will agree that statutes frequently contain meaning which is not the subject of explication!

The legal proposition underlying the doctrine of general prejudice is the very one reflected in the phrases “prejudice per se,” “presumed prejudice” and “prejudice as' a matter of law” — with the familiar judicial action thereon. This, too, is the principal at the base of the conduct of appellate courts in countless cases where error is denounced, and reversal follows promptly, without discernible reference to prejudice .of any nature — with, in fact, a significant *208silence as to the possible presence of harm to a party. This, as well, is the approach at the core of the appellate result which invariably follows 'on a judicial determination that the conduct questioned on review constitutes a deprivation of due process. Finally, this and this alone is the doctrine invoked by the dissenting judge himself— regardless of whether he was aware of it — when, in speaking for the full Court in United States v. Clay (No. 49), 1 CMR 74, decided November 27, 1951, he quite properly reversed the board of review, and enunciated the solid framework of military due process. In the course of his excellent opinion in that ease he used the language set out below:

. . Assuming without deciding that the evidence compels such a finding,' we are, nevertheless, required to hold the error materially prejudiced the substantial rights of the accused, for the reason that we cannot say one of the historic cornerstones of our system of civil jurisprudence is merely a formality of military procedure. If Congress specifically grants what it considers to be a substantial right, we cannot' deny the authoritative requirement by refusing to recognize it. There is importance attached to a benefit given by Congress, and the importance should not be diluted by an assumption that, doubtful cases call for its protection but those appearing certain permit it to be discarded. By way of analogy, the Government could as well argue that when an ac-. cused is denied the right of counsel, the error is not prejudicial because the evidence points unmistakenly toward the guilt of the accused. We must reject such contentions as their adoption would effectively eat away what Congress has declared to be military justice.” [Emphasis supplied]-

I have sought to show- that the thinking embodied in the legal notion of general prejudice is identical with— is, in fact, quite indistinguishable from — that followed by this Court in the processes leading to the reversive result in the Clay case. Judge Latimer, the organ of the Court there, did not at all look for specific prejudice to. the accused — in fact, he quite clearly said-that he did not do so. He did. not reverse in that case because there was specific harm to the accused — or' even a fair risk of it — but rather “for the reason that we cannot say one of the historic cornerstones of our system of civil jurisprudence is merely a formality of military procedure." I think he wás absolutely right — and he should do so as well!

Why, it may be asked, was there then need for the approach of general prejudice, with the concept of military due process hanging ready to hand in the judicial armory for use as a weapon against fundamental procedural departures? The short answer tó this is that there well may be procedural — even administrative — requirements which manifestly constitute Structural members, without at the same time rising to the level reserved for an element of due process. In a sense, therefore, the principle of general prejudice may be regarded as embracing ■ rights only slightly less important and specific in quality than those embodied in the concept of military due process. The majority of this Court has believed such a juristic device to be necessary. Conceding, however, for the moment that the same sound and necessary results might have been reached through an expansion of the doctrine of the Clay case, the following may be said. The challenged device is at the same time more definite and more honest in its analysis and approach. Moreover, although all roads may not lead to Rome —despite the proverb — is it a bad thing that two of them do ?

However all of this may be, my colleague takes sharp issue with the idea of general prejudice, although he has no quarrel with specific prejudice, which he appears to identify with the inclusive term “prejudice.” To his mind, no case warrants invocation of the former notion, but rather all error must be weighed in the balances of the last. Logically extended, of course, this position would require that every case — no matter what the error in*209volved — be tested to determine whether there is in the record sufficient evidence of guilt. To the man in the street, I suspect, an accused whose guilt has been established by overwhelming evidence could hardly be “prejudiced” in point of bare fact by any procedural or administrative error at his trial. Now my brother is unwilling to go this far — and quite properly. In fact, he has expressly said as much in the Clay case — and he certainly and rightly held to this effect. All of this can only mean that when he deals with the problem of prejudice, he leaves the English language and enters the realm of “lawyers’ talk” — and the same is true of all of us. Now there is nothing at all wrong with “lawyers’ talk” — it is, in fact, at the heart of my position in this very case. At the same time, it is tremendously important that, when we use it, we know what we are doing, and exactly what is meant by its vocabulary. It is quite apparent that, as used by lawyers and judges, the term “prejudice” does not mean harm in a dictionary sense, but rather some defensible and entirely appropriate variety of legal harm.

The dissenting opinion has announced that “a practical application of the principle [general prejudice] is most difficult, if not impossible” for the reason that it “is so incomprehensible and so lacking in identifiable standards that it can be measured only by the individual whims of appellate judges.” Let us consider this criticism for a moment, and, as foundational thereto, let us contemplate Judge Latimer’s action and language in United States v. Berry (No. 69), 2 CMR 141, decided March 18, 1952, the opinion first applying the doctrine of general prejudice. In this case — tried under the old procedure — the president of the court-martial substantially usurped the functions of the law member. All three judges of this Court were in complete accord that reversal was demanded, and the present majority reached that result through an invocation of the principle of general prejudice. This device was utilized because, although the reversive result was required, there was no slightest shadow of specific prejudice in the premises. Every ruling of the president, vice law member, was incontestably correct, with a single possible exception, and as to it the board of review had disapproved related findings. Judge Latimer concurred in the result through a special opinion in which he rejected the ratio of the majority, specifically rejected the necessity for a search for specific prejudice, but agreed to reversal because he found “no difficulty in arriving at the conclusion that the accused was not accorded a fair trial, and that to me is ’prejudice.” (Emphasis supplied.) Now, there is a specific and “identifiable” standard for the ages! I submit that in the Berry case the Judge freely accepted the core of the doctrine of general prejudice, although he appears not to have liked the label.

One might suppose from the tenor of the dissent that there exists a wide gulf separating its author from his two colleagues in the matter of prejudice. Although I am willing to concede the abyss, I am quite unable to see — as I have indicated — that it is one of any conceivable sort of substance. Invoking the adage to the effect that “the proof of the pudding is in the eating,” I turn to the past opinions of this Court. In doing so, I find that in approximately 184 decisions, Judge Latimer has dissented in but eight. Of these, no more than two purported to deal with the subject of prejudice — and in them Judge Latimer declined ostensibly to agree with the majority’s conclusion that prejudice was present. United States v. Gilbertson (No. 318), 4 CMR 57, decided July 22, 1952; United States v. Strong (No. 244), 5 CMR 55, decided August 27, 1952. I have, suggested that these dissents merely purported to fall within the area of prejudice — for, after scrutinizing them, I am genuinely unable to determine whether this was in truth their basis, or whether the Judge disagreed with the majority on some other ground. However this may be, I submit that on the basis of the record, it is sadly clear that my brother is waging what is essentially a war of tags and labels — a really pointless debate in the sphere of semantics.

*210The past decisional record is also revealing in a further particular. Those who criticize — if they would demand a respectful audience — must, as a usual thing, be prepared to offer an alternative to the solution with which they disagree. I find that the phrase which appears most frequently in Judge Latimer’s conclusions that prejudice is present is that there was a “reasonable probability” that the accused was, in fact, harmed. United States v. Clark (No. 190), 2 CMR 107, decided February 29, 1952; United States v. Hemp (No. 290), 3 CMR 14, decided April 8, 1952; United States v. Moynihan (No. 278), 3 CMR 152, decided April 21, 1952; United States v. Boone (No. 320), 3 CMR 115, decided May 9, 1952; United States v. Simmons (No. 505), 5 CMR 119, decided September 26, 1952. See United States v. Rhoden (No. 153), 2 CMR 99, decided February 26, 1952. If this is the surrogate proposed as a remedy for the vagueness asserted to be inherent in “general” prejudice, I am afraid the critic stands on insecure gi'ound indeed.

Delving deeper into the opinions of this Court, they reflect — unless I misapprehend their meaning — that the dissenting judge has been willing to find “prejudice” in at least four sorts of situations, which I shall attempt to identify roughly: (1) Where the record discloses the presence of demonstrable and measurable harm to the accused. (2) Where there is an indication of the likelihood — in varying degrees — that the accused was harmed; that is,’ that he might have been injured. (3) The sort of situation he was talking about in the special concurrence in the Berry case, whatever exactly that was. (4) The type of thing he had in mind in the majority opinion in Clay — for it will be recalled that he there found prejudice “for the reason that we cannot say one of the historic cornerstones of our system of civil jurisprudence is merely a formality of military procedure.” When Judge Latimer finds “prejudice,” what does he mean: prejudice 1, prejudice 2, prejudice 3, or prejudice 4? I can only suggest humbly — and in my brother’s own words — that to my mind “a practical application of . . . [these] principle[s] is most difficult, if not impossible.” And I say this for the reason that they appear to me to be “so incomprehensible and so lacking in identifiable standards that . . . [they] can be measured only by the whims of appellate judges.”

Lest I be misunderstood, let me say in haste that I, too, find in each of the foregoing enumerated situations the potent seeds of reversal — and in this Judge Latimer and I are in hearty accord. However, we differ in the following respects. The reader may know that when I find “specific prejudice” I mean to include only (1) and (2) above; when I use the term “general prejudice” I intend to refer only to (3) — and I do not concern myself with specific prejudice; and when I say “military due process” I have reference only to (4) — and here, too, I do not search for specific prejudice. Does this not help just a little? In fine, it is submitted that, in the doctrine of general prejudice, we have a tool which is at once sharper-edged and more selective than the principle of bare prejudice, as well as more descriptive, more realistic and, I believe, genuinely more cognitive of what is actually being done.

IV

What are frequently called “harmless error” statutes, such as Article 59(a) of the Uniform Code, supra,

are in no way novel. See Rule 52(a), Federal Rules Criminal Procedure, 28 USC § 2111. Nor have they operated to abrogate any of the thinking or practices reported earlier herein. I am certainly aware of the admitted evils they were intended to obviate, and I am also familiar with their history. Moreover, no one is more sympathetic than I with their wholly commendable objectives. See United States v. Lee (No. 200), 2 CMR 118, decided March 13, 1952; United States v. Bound (No. 201), 2 CMR 130, decided March 13, 1952. However, Article 59(a) does not at all require — in either theory or practice— that we go where Judge Latimer would choose to take us. Here, it seems to *211me, he .is in the position of one who has boarded quite the right train, but has overridden his destination. He has seized upon a perfectly sound idea, but has not known when to loosen his grasp. We are all aware that in case after case convictions are reversed as to serious criminal offenses by appellate courts without testing for prejudice, and without so much as a side-long glance at existing “harmless error” statutes. In all of these instances of course — and properly so — important rights were involved. In many cases, however, courts have been and are concerned with rights of substantially less significance — such as rulings on evidence, instructions, and the like. In these, once error is discerned, the record is tested for prejudice, and “harmless error” provisions are and must be applied in full force and intent. The basis for distinction between the two groups lies, of course, in the relative importance of the rights involved. I doubt that the dissenting judge will deny either the existence of the two categories, or that the reagent for division is to be found in the basic and fundamental character of the right with which the court is concerned. The existence of the two classes has been recognized, of course, but no court — to my knowledge- — has undertaken to elaborate their rationale. Nor have judges seemed to agree on any single label for them. Perhaps the reason for this is that the distinction has ever been clearly, if implicitly, ackowl-edged and has always been applied and expected by all concerned.

It may be well at this point to take account of the dissenting judge’s view of Article 59 (a), supra. He appears to regard it as providing its own unyielding standards, leaving no room for interpretation by this Court. I, however, see it in quite a different light. In specie, it simply states that:

“A finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”

To my mind — and consistent, I believe, with sound judicial practice — we are left wholly free to determine the meaning of all of the words used therein, and particularly the terms “rights,” “prejudice,” “substantial” and “material.” I am utterly unable to understand how this single Article has come to acquire in the Judge’s mind those qualities classically associated with the laws of the Medes and Persians — and that it alone must be regarded as “judge-proof,” and providing its own criteria — ■ requiring nothing by way of definition and amplification.

Its legislative history discloses with impressive clarity that it was designed to prevent reversal for “inconsequential” or “minor technical” errors. Hearings before House Committee on Armed Services, 81st Congress, 1st Session, on H.R. 2498, Uniform Code of Military Justice, at page 1175. In United States v. Lucas (No. 7), 1 CMR 19, decided November 8, 1951, and again in United States v. Kellum (No. 408), 4 CMR 74, decided July 25, 1952, this Court, through its adoption of the test of Kotteakos v. United States, 328 US 750, 764-765, 90 L ed 1557, 1566, 66 S Ct 1239, brought to bear civilian precedents in the field, particularly those of the United States Supreme Court. The following language of Mr. Justice Frankfurter in Bruno v. United States, 308 US 287, 293-294, 84 L ed 257, 261, 60 S Ct 198, was quoted with express approval by Judge Latimer in speaking for the Court in United States v. Clay (No. 49), 1 CMR 74, decided November 27, 1951:

“ ‘A subsidiary question remains for determination. It derives from the Act of February 26, 1919, 40 Stat 1181, 28 USC § 391, whereby appellate courts are under duty in criminal as well as civil cases to disregard “technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” Is the disregard of the right which Congress gave to Bruno an error, the commission of which we may disregard? We hold not. It would be idle to predetermine the scope of such remedial provision as § 391 by anticipating the myriad varieties of rulings made in trials and attempting an abstract, inclusive definition of *212“technical errors.” Suffice it to indicate, what every student of the history behind the Act of February 26, 1919, knows, that that Act was intended to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict. Of a very different order of importance is the right of an accused to insist on a privilege which Congress has given him.’ ” [Emphasis supplied]

Turning to other cases decided by the Supreme Court, there is no mistaking the approach of that tribunal to “harmless error” legislation. In Crowley v. United States, 194 US 461, 474, 48 L ed 1075, 1081, 24 S Ct 731, it held that such legislation had no applicability where the disqualification of a grand juror is prescribed by statute— that a requirement of that nature could not be regarded as a mere “defect” or “imperfection.” Mr. Justice Douglas, in Bihn v. United States, 328 US 633, 638-639, 90 L ed 1484, 1489, 66 S Ct 1172, characterized non-pre judicial error as “a minor aberration of trivial consequence,” and went on to say that it was not enough “that guilt may be deduced from the whole record. Such a course would lead to serious intrusions on the historic functions of the jury under our system of government.” In Weiler v. United States, 323 US 606, 611, 89 L ed 495, 499, 65 S Ct 548, Mr. Justice Black said:

“It is argued that this error did not prejudice the defendant. We cannot say that it did not. The jury convicted without being instructed that more than the testimony of a single witness was required to justify their verdict. This was no mere ‘technical’ error relating to the ‘formalities and minutiae’ of the trial. . . . We are not authorized to look at the printed record, resolve conflicting evidence, and reach the conclusion that the error was harmless because we think the defendant was guilty. That would be to substitute our judgment for that of the jury and, under our system of justice, juries alone have been entrusted with that, responsibility. . . .

And again in Bollenbach v. United States, 326 US 607, 614, 90 L ed 350, 355, 66 S Ct 402, Mr. Justice Frankfurter met in the following manner a prosecution contention that the error presented was not prejudicial in view of the convincing evidence of guilt:

. In view of the Government’s insistence that there is.abundant evidence to indicate that Bollen-bach was implicated in the criminal enterprise from the beginning, it may not be amiss to remind that the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts.
“Accordingly, we cannot treat the manifest misdirection in the circumstances of this case .as one of those ‘technical errors’ which ‘do not affect the substantial rights of the parties’ and must therefore be disregarded. . . . All law is technical if viewed solely from concern for punishing crime without heading the mode by which it is accomplished. The ‘technical errors’ against which Congress protected jury verdicts are of the kind which led some judges to trivialize law by giving all legal prescriptions equal potency. . . . Deviations from formal correctness do not touch' the substance of the standards by which guilt is determined in our courts, and it is these that Congress rendered harmless. Bruno v. United States, 308 US 287, 293, 294, 60 S Ct 198, 200, 84 L ed 257; Weiler v. United States, 323 US 606, 611, 65 S Ct 548, 551, 156 ALR 496. From presuming too often all errors to be ‘prejudicial,’ the judicial pendulum need not swing to presuming • all errors to be ‘harmless’ if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has''in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascer*213tainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be.”

Not long afterward, in Fiswick v. United States, 329 US 211, 220, 91 L ed 196, 202, 67 S Ct 224, the Court rejected an argument based on absence of prejudice in this language: “We therefore cannot say with any confidence that the error . . . did not influence the jury or had only a slight effect.” (Emphasis supplied) The approach manifested in this statement is interesting indeed — for it may be observed that the Court was much more receptive than not to a suggestion of prejudice. The same is evident in Krulewitch v. United States, 336 US 440, 446, 93 L ed 790, 795, 69 S Ct 716: “We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.” (Emphasis supplied)

Having set our clear course in Lucas, Clay and Kellum to follow that of the Supreme Court in this area, I am sure that we should not now determine to set a new one, and hereafter to follow a meandering and elusive route of our own. I am convinced that this is exactly what Judge Latimer would have us do.

V

Little need be said of the application of the doctrine of general prejudice to the facts of the case at bar. It is apparent that a majority of this Court, for what it deemed to be sound reason, regarded the bipartite character of the court-martial under the Uniform Code as a structural member in the military judicial scheme. Once that decision was taken, the result reached here followed inexorably. It is equally apparent that Judge Latimer, for some reason, disagrees with this result. I say “for some reason” because, in light of his previous judicial conduct and utterances, I do not fully apprehend the rational basis for his action here. Since he has in fact, although perhaps unwittingly, accepted the logical core of general prejudice, I can only suppose that he does not conceive the “closed conference” to be a fit subject for its application. This, I suppose, is a matter of judicial judgment, and, while I cannot at all agree with his conclusion, I must acknowledge his freedom to do what he thinks best.

It seems appropriate at this juncture to point out, however, that the “closed conference” problem is not unique to the field of military justice. Indeed, it has received the attention of the Supreme Court of the United States on more than one occasion. In Fillippon v. Albion Vein Slate Co., 250 US 76, 63 L ed 853, 39 S Ct 435, a personal injury action, the jury, in the course of its deliberations, dispatched a written inquiry to the judge having to do with the question of contributory negligence. He replied in writing, without having informed the parties and their counsel, a fortiori without their consent, and without recalling the jury to the courtroom. A verdict for the defendant was set aside and a new trial ordered. Although the court went on to say that the trial judge’s instructions were erroneous and “presumptively injurious . . . unless it affirmatively appears that they were harmless” (250 US at 82), it appears from a subsequent opinion that the fundamental basis for the reversal was the procedure followed rather than the substance of the judge’s instructions. Shields v. United States, 273 US 583, 588, 71 L ed 787, 789, 47 S Ct 478. This latter case — one of a criminal nature — also involved the exchange of written communications between judge and jury outside the presence of the parties and counsel. The court did not consider the correctness of the judge’s written instructions, but adverting to the Fillippon case, said that, if supplemental instructions should riot go to a jury in a civil case in the absence of counsel, certainly they should not do so in a criminal case. 273 US at 588. The conviction there in question was reversed without the slightest search for specific prejudice. Both of these opinions were reviewed by the Court of Appeals for the Third Circuit in Arrington v. Robertson, 114 F2d 821. That court had this to say apropos of the present inquiry:

“The action of the trial judge in *214the present ease in sending instructions to the jury from his chambers in the absence of the defendant or his counsel and without giving them notice and an opportunity to be present amounted to a denial of due process of law. We hold that it was the denial of a right so fundamental as necessarily to affect the substantial rights of the defendant regardless of the nature or propriety of the instruction given. The inquiry of the jury and the trial judge’s response were not reported by the court stenographer. The record does not disclose the, phraseology of the jury’s question. Consequently we cannot know whether the instructions given, even though entirely sound as abstract legal statements, were appropriate to answer it, or whether additional instructions, appropriate and indeed necessary to supplement those given, might not have been suggested to the trial judge by counsel for the defendant if he had been given the opportunity to be present.” [114 F2d at 823] [Emphasis supplied]

In frankness, I am not prepared to go so far as the Third Circuit appears to have done. That is, I do not regard a proscribed law officer-court conference as necessarily requiring reversal in every case — no matter what the state of the record or the subject of the conference. Nevertheless, the importance to accused persons of the right involved is there made unmistakably clear.

Judge Latimer' has also questioned the action of the majority in applying the doctrine of general prejudice to the “closed conference” on what might be termed a temporary basis. This, it is said, is patent anomaly. Although not at all without legal precedent, let us concede arguendo that it is unusual— that is, on its face. However, he may be sure that the device was not adopted blindly. The concept of a bipartite court-martial is utterly new to the sphere of military justice — as are many other significant requirements, which may be comprehended within some such phrase as “the reign of law.” It was simply determined by a majority of this Court that the surest and shortest route to establishing this particular legal idea securely within the framework of the military scheme lay in drawing violations up short through utilization of the principle of general prejudice. Policy was, of course, the foundation for the course adopted. Accepted as a matter of policy, any conceivable surface anomaly gives way to basic soundness.

Finally, Judge Latimer is concerned over what he regards as an excess of “administration” in the majority’s action in this and related cases — and in support of his position he quotes from the opinion of Chief Justice Marshall in Osborn v. Bank of United States, 9 Wheat 738, 22 US 738, 6 L ed 204. He could scarcely have chosen a less happy authority from his point of view, or a more useful one from my own. Literally, I know of no American judge who practiced less of what he preached in the Osborn case than did Chief Justice Marshall. He certainly “administered” with a vengeance, as all who are familiar with his opinions will attest —and for a most excellent and compelling reason. He functioned in the Federal civilian judicial scene during a period of juristic immaturity almost identical with that now prevailing in the area of military justice. A substantial element of what Judge Latimer fears as “administration” is always present in the job of -judging — as better judges than I have testified. How little or how much of this element is defensible — or required — depends in large part, but not wholly, on the maturity of the legal system concerned at the time in question. It must be confessed, indeed, that the majority of this Court in the case at bar has been willing to engage more than he in the practice reprehended by Judge Latimer. This does not necessarily mean, however, . that we have misconceived our office; it may, in fact, mean that he is doing what is perhaps the right thing at the wrong time., In this sense, therefore, it may be said that he is ahead of his era.

I warmly concur in the opinion of the Chief Judge.