(concurring in the result) :
I agree that our holding in United States v. Soukup (No: 533), 7 CMR 17, decided January 23, 1953, requires reversal of the conviction of cowardly conduct here for failure on the part of the law officer to instruct the court with respect to the element of fear. I also agree that no error was committed by the law officer in his instructions on willful disobedience. However, I must set down my divergent views concerning some of the matters dealt with in the majority opinion.
II
Although I am not at all out of agreement with their result, I cannot accept my brothers’ resolution of the question *601raised by the failure of the law officer to instruct the court that knowledge on the part of the accused that the individual who issued the order is “his superior officer” is an essential element of the offense of willful disobedience. The majority avoids a determination of the question of whether this sort of knowledge is an element of the crime with which we are presently concerned — and, as I understand its members, their reasoning runs something like this. If knowledge is not an element, a failure to instruct thereon does not, of course, constitute error, in the absence of evidence fairly placing the matter in issue. On the other hand, if knowledge is an element, it must be the subject of instruction, and a failure in this particular constitutes error. However, in the absence of evidence similarly placing the matter in issue, this error will not be deemed prejudicial. Here — -the argument continues — no issue of knowledge was raised. Therefore, under either view no prejudicial instructional error was committed, and there is no necessity for reaching a conclusion concerning the elemental character of knowledge.
While I certainly do not believe that all problems require an “either-or” approach, I cannot avoid thinking that the present one — indeed, any question involving the determination of a crime’s basic ingredients — should be considered in terms, not of gray, but of black or white. A certain subject of proof either is or is not an element of the offense to which it relates — and for a very compelling reason. If it is an essentia] ingredient it must be included within the law officer’s instructions on the elements of the offense charged — regardless of. whether raised by the evidence — and, as a general proposition, it is ipso facto reversible error tó admit it. We held this in United States v. Clay (No. 49), 1 CMR 74, decided November 27, 1951, where the instructional failure was complete, and we have reached the same conclusion in other cases where the omission of the law officer was only partial — that is, where one or some, but less than all, elements were unmentioned by him. United States v. Ollie C. Williams (No. 251), 2 CMR 137, decided March 14, 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. Cromartie (No. 374), 4 CMR 143, decided August 6, 1952.
It does not follow, however, that every instructional failure is necessarily within Clay and a fortiori the protection of military due process. We held, for example, in United States v. Lucas (No. 7), 1 CMR 19, decided November 8, 1951, that a total instructional failure did not constitute reversible error in the face of a plea of guilty. See also in this connection United States v. Kubel (No. 229), 5 CMR 73, decided August 29, 1952. It must be recognized, of course, that special and compelling considerations are required to remove an instance of instructional omission from the operation of the Clay principle. My brothers appear to find one of these in the fact that knowledge was not in issue here. While I am not prepared at this moment to say that this may not under some conceivable circumstances furnish a basis for such á conclusion, I am certainly unwilling to agree that in all ■ — or even most — situations it should be deemed to do so. Quare as to an instruction on premeditated murder which omits all reference to premeditation— regardless of the posture of the evidence. In the present case I am not required to take a position on this question — for the record reflects not only that the evidence failed to raise a want of knowledge on the part of the accused, but contains as well an express and 'positive judicial admission by him that he was aware of the . officer status of Lieutenant Blake, the source of the disobeyed command. I am sure that this removes the case from Clay — with the result that, although knowledge be regarded as an element of willful disobedience, the law officer’s failure does not reach the level of reversible error. However, granting that the demands of the case at bar do not compel definitive disposition of the knowledge problem, to my mind we should dispose of it in the interest of affording necessary and proper guidance to the tribunals below us in the hierarchy of military law.
*602It is perfectly true that on two occasions by way of dicta this Court has indicated that knowledge might well be deemed in a proper case an element of the crime with which we are here concerned. United States v. Snyder (No. 409), 4 CMR 15, decided June 5, 1952; United States v. Charles F. Simmons (No. 505), 5 CMR 119, decided September 26, 1952. However, the question was not before us then for necessary and definitive determination. Although my brothers do not appear to agree with me, it is — as I see it — distinctly before us now, and I have been anxious to record my convinced views on the subject.
I turn first to Article 90 of the Code, 50 U.S.C. § 684, which delineates the crime with which we are concerned. It provides simply that the offense is committed by one who “willfully disobeys a lawful command of his superior officer”. There is here no mention that knowledge on the part of the accused of the “superior officer” character of the source of the command must be specifically and affirmatively shown in every case. Examining the Manual for Courts-Martial, United States, 1951, paragraph 169b for further guidance, I find that the elements of proof set out are: “(a) That the accused received a certain command from a certain officer, as alleged; (b) that such officer was the superior officer of the accused; and (c) that the accused willfully disobeyed the command.” So, in this phrasing — as in that of the Code itself — there appears no indication that the prosecution must establish beyond a reasonable doubt in all cases that the accused person knew that he was disobeying the order of a superior commissioned officer. However, from that portion of paragraph 169b entitled “Discussion,” as distinguished from the part characterized as “Proof” and quoted above, it appears that “the accused must know that it [the command] is from his superior officer.” Yet this by no means requires the conclusion that such knowledge is an element of the offense. There is no real inconsistency between this Manual expression and the view that a want of knowledge of this sort is an affirmative defense — for it is certainly this, at least. Indeed, one who is ignorant of the fact that the military person issuing the command is his superior officer cannot possess — in disobeying the command — the requisite “intentional defiance of authority” at which the Code’s proscription of the offense is directed. Manual, supra, paragraph 169b.
Highly instructive in the premises is a provision found in the Manual’s paragraph 170a, which treats in general of insubordinate conduct directed against noncommissioned personnel, in violation of Article 91 of the Code, 50 USC § 685. Here we are told that the fact “That the accused did not know that the person assaulted was his superior is a defense to a violation of this article.” (Emphasis supplied.) Through an incorporation by reference, this language, relating to assault, is made applicable to paragraph 170c, which deals with the crime of willful disobedience of the order of a noncommissioned, warrant or petty officer. The result of this incorporation is to make clear beyond peradventure that in the case of a violation of Article 91(2), a want of knowledge of the superior noncommis-sioned status of the source of the order is a matter of defense. In this there is nothing whatever inconsistent with the provisions of the Uniform Code — with the result that we are bound by the Manual’s unequivocal direction in the matter. United States v. Lucas, supra. With this provision in mind, would it not be inconsistent to hold — unless somehow compelled to do so — that knowledge of the character involved here is not a defensive matter, where the offense alleged is willful disobedience of a commissioned officer, but instead is an element of the crime ? I find it exceedingly difficult to believe that the draftsmen of the Manual intended to create this inconsistency, and to distinguish in this particular between Article 91(2), involving noncommis-sioned superiors, and Article 90 (2), involving commissioned superiors. Certainly I can conceive of no possible reason for the distinction.
On the basis of the details set out in preceding paragraphs, and as a matter of Manual interpretation, I conclude *603that knowledge is not an element of • the offense of willful disobedience in violation of Article 90 (2), but rather a subject for affirmative defense. This view, I believe, is supported by the practicalities of the situation. It is conceivable, of course, that on rare occasions, an officer may issue a command while attired in civilian clothes. It is also true that, for obvious reasons, officers in advanced combat areas frequently remove the indicia of their grade. Yet in the overwhelming majority of instances in which a command is issued, its source will be found to be palpably and inescapably, labeled. He will be in uniform and overtly wearing his eagles, his bars or his chevrons. Under these circumstances, it is reasonable to suppose that the draftsmen of the Manual simply saw no point in including as an element of willful disobedience a matter almost never in real issue. Charging on knowledge in most instances of this offense would constitute no more than a vain and nugatory act. And this Court has repeatedly demonstrated that, where want of knowledge is fairly raised by the evidence, it will require an instruction as to its legal effect. Here, however, no such want was raised. Indeed, it is manifest that the accused was fully aware that he was speaking with a superior officer on the occasion in suit. Therefore, in viewing want of knowledge as defensive matter, it was not raised, and the instructions of the law officer on willful disobedience were not incomplete.
It has been suggested that the position urged in these pages is in conflict with that taken by a united Court in United States v. Snyder, supra. There we held that knowledge, actual or constructive, of a regulation issued by the Post Commander, Camp Lejeune, North Carolina, was an element of the offense of failure to obey “any lawful general order or regulation”, in violation of the Uniform Code, supra, Article 92 (1). I find no conflict — even inconsistency — whatever. It must be manifest that Snyder and the present case deal with two wholly different problems. Although they share the question of whether “knowledge” constitutes an element of an offense, they have to do, in the first place, with totally different crimes, and, in the second, with quite different sorts of knowledge.
In determining in the present case that knowledge of the “superior officer” character of the source of the command is not an element of willful disobedience, in violation of Article 90, supra, the problem was approached both from the standpoint of statutory — that is, Code and Manual — interpretation, as well as from that of function — that is, in terms of what were characterized as the “practicalities of the situation”. Utilizing identical approaches toward the problem in the Snyder case, an entirely different result necessarily obtains. Although both there and-here the appropriate Manual subparagraph, “Proof” omits reference to “knowledge”, quite different language is otherwise involved, and the data from which the intention of the draftsmen is to be ascertained are. not at all the same in both cases. Cf. the Manual, supra, paragraphs 154a (4), 169b, 170a, and 170c, and 171a. As to the offense involved in Snyder, paragraphs 154a (4) and 171a expressly provide that knowledge, either actual or constructive, must be shown to convict an accused person of failure to obey an order or regulation of the nature there in suit.
So much for the spectacles of statutory interpretation. What of those of function? Here, too, we find a sharp distinction. Earlier reference has been made to the fact that in the overwhelming majority of instances in which a command is issued by an officer to a military subordinate, the former will be found to bear upon his person openly the indicia of his status — the insignia of his grade worn in such a fashion that he who runs may read. Turning to the Snyder offense, involving not the verbal direction of a superior, but the general order or regulation of a command, we find a readily distinguishable situation. There, no such aid to information is in any way present, and much more often will the question of knowledge genuinely be in issue. It is, therefore, easy to understand why the draftsmen of the Manual viewed the two offenses in different lights, and why they sought to include knowledge as an *604element in the Snyder offense, yet determined to relegate the same factor to defense status in the present one. Thus I conclude that there is no conflict between the Court’s view in Snyder and my own here.
Ill
In view of the Court’s reversive action with respect to the conviction under the charge of cowardly conduct, the issue of multiplicity has become of no practical importance to the accused here. However, I cannot agree with the determination reached by the majority on this subject. It is said that our decision in the Soukup case, supra, requires a finding that multiplicity is not present in this one. The point is made, indeed, that the facts in that case are “similar to those proven in this instance. . . .” I cannot know that this is true,' nor— by reason of insufficient facts of record —do I believe that the majority can do so with any sort of assurance. The accused in Soukup was charged with' cowardly conduct in failing to join the forward elements of his company, and additionally with the willful disobedience of a lawful command of a superior officer to join the forward elements of his company. In that factual complex, we concluded that:
“. . . . Here the accused, who had been stationed with his company at the front, was discovered some three or four miles to the rear. When ordered to return to his unit he failed to do so. The result is that two separate duties were thereby breached— the one to remain with his company on the line; the other to obey the direct and specific order to return thereto. To sustain the charge of cowardly conduct, it would certainly not have been necessary to prove the breach of the duty to obey the direction to return to the front — for the reason that the accused had previously been assigned to the line by a separate and distinct order. The breach of the latter, if motivated by fear, would alone constitute, cowardly conduct. Likewise, it could hardly have been necessary to prove, in connection with the charge of willful disobedience of a lawful order, that the accused had been guilty of cowardly conduct in failing to remain with the forward elements of his company — a duty imposed by an utterly different directive. We conclude, therefore, that the offenses charged in this case were entirely separate.”
In the case before us now the facts may be wholly different, and we cannot be sure they are not. The accused here had at an earlier time served as an ammunition bearer with Company A, 9th Infantry. During a reserve period he had been sent to Taegu for medical treatment. On his return to his unit command post, he was directed by his company commander to report to the 2nd Platoon. It is evident that this constituted a change of assignment. He refused verbally to accept this order and, in fact, did not obey it. Subsequently, he, like Souk-up, was charged with cowardly conduct in failing to join the forward elements of his company, and additionally with the willful disobedience of the command of a superior officer to join these critical elements. It seems clear to me that the cowardly conduct charge here is based on the wrongful failure of the accused to join the 2nd Platoon, which was certainly in the. presence of the enemy. Now, if this is true, I must —under Soukup — inquire whether the accused was under a pre-existing legal duty to serve with this element at the time he was ordered to do so by Lieutenant Blake. If he was, we have here a Soukup situation, and there is no multiplicity. On the other hand, if he was not, then we must conclude that there was multiplicity, and that the situation presented here is precisely what that in Soukup was not. Within the answer to this inquiry, as I see it, lies the key to the entire problem. And as to it, the record affords me literally no specific information. How then can my brothers discern that the instant case is within the principle of Soukup? Indeed I am in a much better position to say — if I wished to do so — that it is outside that doctrine, for I am aided to this conclusion by our frequent adjuration that doubts must be-resolved in favor of an accused — in this case, in the direction of a finding of multiplicity. *605However, since the present case is merely being utilized by me as a vehicle for the elaboration of a point of view concerning multiplicity, I shall simply assume that no duty on the part of the accused to join the 2nd Platoon existed prior to Lieutenant Blake’s direction to do so. On this assumption, our analysis in Soukup requires me to conclude that the charges here are clearly multi-plicious.
That does not, however, solve the problem raised by the assertion of multiplicity. As we have observed heretofore — in Soukup, in fact:
“. . . we should point out that no error would necessarily result from charging and convicting the accused of offenses arising out of the same transaction — even though the offenses be not separate. Manual, supra, paragraph 74b (4). Difficulties arising from an allegation of multiple offenses growing out of what appears to be a single transaction are fully met in connection with principles having to do with the imposition of sentence. Only if the offenses are separate, may an accused be sentenced for each. Manual, supra, paragraph 76a (8).”
In this connection — and under the assumption mentioned earlier — there is a further and different approach which may serve to demonstrate even more clearly the non-separate character of the charges in the present case, and the relationship of this phenomenon to the sentencing power of the court. We have previously pointed out the impossibility of divorcing the charges from the facts in a case where the question raised relates to lesser included offenses. United States v. Joe L. Davis. (No. 646), 10 CMR 3, decided May 14, 1963. Considering the facts here, we observe that it would have been impossible to prove the offense of cowardly conduct without first establishing the willful disobedience alleged. To put it in a slightly different fashion, the cowardly conduct in this case consisted of the willful disobedience motivated by fear — so that if the prosecution, with respect to the cowardly conduct alleged, had failed to prove the element of fear only, it icould, necessarily have established the willful disobedience with which we are concerned. The latter offense was, therefore — and under the special facts of this case — lesser included, I believe, within the cowardly conduct charged. This points up sharply the multiplicious nature of the charges, and brings into play paragraph 76a (8) of the Manual, supra, which provides that: “An accused may not be punished for both a principal offense and for an offense included therein because it would not be necessary in proving the included offense to prove any element not required to prove the principal offense.”
It is apparent, therefore, that error in this connection arises when, and only when, the accused has received a sentence based on each of two or more offenses which are not separate. Under the assumption stated earlier, the offenses charged against this accused are not separate ones. In the ordinary case, therefore, it would be necessary to scrutinize with care the post-findings action of the court-martial, together with any instructions of the law officer as to sentence, for the purpose of determining the legality of the punishment imposed. In the present case, of course, and for reasons suggested earlier, such a course would serve no purpose of practicality — and I can have no quarrel with the disposition directed by the majority.