(concurring) i
I concur.
In the case of United States v. Masusock, (No. 15), 1 CMR 32, decided by this Court November 9, 1951, we adopted the following principles of law announced in Smith v. United States, 173 F2d 181, 184 (CA 9th Cir):
“It is without question true that in a criminal case the ultimate issue is the guilt or innocence of the accused, to be determined by a fair trial and not the competence of counsel, but it cannot serve the purpose of justice to permit a defendant to prosecute one theory in the trial court and, finding it unsuccessful, not only to substitute another on appeal but to claim error arising out of that which he himself has invited. The admitted normal rule is that an appellate court will not consider matters which are alleged as error for the first time on appeal, and this is true of criminal as well as civil cases. However, an exception exists in criminal cases where the alleged error would result in a manifest miscarriage of justice, or would ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’ [citing United States v. Atkinson (1936) 297 US 157, 160.]”
That case was decided early in the Court’s history and if it was good law then, it is good law now. Accordingly, if we follow that rule we need only test this case to determine whether the error, if any, was of such a substantial nature that failure to consider it would result in a miscarriage of justice or seriously affect the fairness or integrity of the trial proceedings.
As I view the record a relatively unimportant and insignificant event in the trial of a law suit seems to have been magnified on appeal out of all proportion to its importance. To support this statement I recite briefly the facts and circumstances shown by the record. After the taking of evidence had been completed and the trial counsel had made his opening argument to the court, defense counsel, who, by the *444way, appears to have been well qualified and who performed a very excellent job in defending his client, presented his arguments to the court. I quote from his statement:
. . Now at this point I want to read to the court the essential elements of proof required for these offenses. I’m sure that the law officer will do it at the proper time, but I want to call it to the court’s attention. The essential elements of proof are in Manual for Courts-Martial, 1949 under 180g, page 240. Here are the essential elements which must be proved for the allegation of larceny— they are: ‘(a) the appropriation by the accused of the property as alleged; (b) that such property belonged to a certain other person named or described; (c) that such propei'ty was of the value alleged, or of some value; and (d) the facts and circumstances of the ease indicating that the appropriation was with the intent to deprive the owner permanently of his interest in the property or of its value or a part of its value.’ And then further- — going back to 181h which refers you to 180g for elements of proof — on page 252 it states a last elements of proof: ‘and that the property belonged to the United States and was furnished or intended for the military service thereof, as alleged’. . .
The record shows that copies of the Manual had been furnished members of the court and obviously they could turn to the pages from which defense counsel was reading. No one took issue with the statements made by him and the reason for that is apparent. It is true that the law officer did not again read the elements from the Manual but I fail to understand why that is necessary or prejudicial. All the law officer needs to do is make certain the court accepts his definition of the crime and this is what he told the court:
. Going back to the offenses charged, the accused is charged with three offenses, two of which concern the alleged stealing of certain specified amounts of gasoline of some value specified, furnished for and intended for the military service and the property of the U. S. Now I am going to eliminate any prolonged discussion as to the necessary elements of proof. These portions of the Manual for Courts-Martial 1949 and 1951 as were read by defense counsel correctly state the elements of proof. If the court wishes them re-read, they can re-open the court and we will have them read, but I don’t seek to prolong this particular phase of the case.
. Now the defense counsel, in quoting from the manual for 1949 as to the elements of the larceny, correctly stated those elements in reading from the manual, part from pages • 240 and 241 and some from page 252.
The law officer then specifically asked each counsel if he had any further requests or desires and defense counsel stated “The law officer has adequately covered the instructions in the case.” It is now contended that if we do not hold the accused was prejudiced, we lack appreciation of the calibre of counsel appointed to defend the accused in the military system. Without debating the fairness or unfairness of the charge it is my belief that if we are to assist in building a good military judicial system, we must place responsibility on all three principal lawyers participating in the trial of the case, namely, the law officer, trial counsel, and defense counsel. I do not believe the present act contemplates a paternalistic system in which the law officer must be charged with all the delicts of defending counsel. The latter has a definite and primary responsibility to represent properly his client. We cannot require the law officer and trial counsel to be experts and excuse defending counsel on the theory that he must not be charged with a rudimentary knowledge of the law. All three are from the same schools and victims of the same system. Clearly the law officer has a duty to insure a fair and just trial but he does not represent either party and he should not become an advocate for or against an accused. As I understand his functions, *445he is to protect the interests of both parties. The advocates are trial and defense counsel. If perchance defending counsel as a class are inferior to other counsel, a charge I am not prepared to make, then we do not insure improvement by placing the blame for their shortcomings solely on the law officer. On the contrary, so long as we insist on his performing their duties for them, or we reverse cases without regard to the manner in which they perform their tasks, we can expect little improvement in their service.
I am at a loss to understand why the placing of some responsibility on defending counsel becomes so acute in this case. We have affirmed previous cases on the grounds that accused’s counsel had waived his right to complain and we need have little misgivings about exacting a waiver in this case. The only thing that was waived was the right to require the law officer to adopt a particular method of giving to the court the essential elements of the offense. The Manual was before the members, they were referred to the specific pages of the book by both defense counsel and law officer, counsel for the accused read the essential elements from the Manual, and when the law officer instructed the members of the court, he referred them to the identical pages and paragraphs and told them they had been given the correct elements of the offense by the defense counsel, but that if any one wished them restated it would be done. Apparently everyone at the trial level was satisfied the court-martial members had been authoritatively told the elements of the offense and that it was not necessary to have them reiterated. Furthermore, it is a reasonable assumption that unless members well knew the guideposts that would limit them in their consideration of the particular offense involved, a request would have been made that the law officer repeat the charge. In view of this, can it be seriously contended that we are permitting an untrained lawyer to waive one of the historic cornerstones of our system of military jurisprudence? I would not believe so when all defense counsel needed to determine was the likelihood of the court members remembering the elements as he read them.
I prefer to advance one step further and test this case to determine whether our ruling brings about any miscarriage of justice. No one suggested the evidence was insufficient, so we need only be concerned with the possibility of the accused being prejudiced by instructional deficiencies. The principal purposes in giving instructions as required by the Code may be summed up as follows: (1) So the members of the court will be given the law governing the particular case by the law officers; (2) so they may apply the facts to the law as announced; (3) so that accused and his counsel may hear the instructions and know that the court-martial is instructed correctly; (4) so that counsel may be afforded an opportunity to except; (5) so counsel may have an opportunity to suggest corrections; and (6) so that each member of the court-martial will actually receive the instructions. If we measure the procedure adopted by the law officer by those requirements, we find it sufficient to meet the test. This, for the reason that the elements of the offense were read to the members of the court and they could apply them to the facts; accused and his counsel heard each and every instruction given; there was no necessity for defense counsel excepting as he wrote his own formula for the offense; amplifying or modifying instructions could have been requested if desired; the law officer placed his stamp of authority upon the elements necessary to be found before a finding of guilty could be returned; and each member of the court fairly knew and understood those essential elements. While the method used was not the best, an unorthodox method does not in and of itself prejudice an accused. Neither does it rot away a cornerstone of military justice. But much more to the point, if counsel for an accused is satisfied that the method used is adequate to instruct fairly the court, and so announces in open court, I do not hesitate to enforce a waiver. I would only be reluctant to do so if the record show that the particular counsel was so lacking in qualifications that his defense *446affected substantially the fairness of the proceedings so that a miscarriage of justice would result from an affirmance. No such showing is made here.