(concurring):
I agree with the author of the principal opinion. Without detracting in any way from what he has said, I append three brief comments of my own.
II
I am sure that the accused was prejudiced, if the instruction with which we are concerned here was erroneous. However, I do not believe that legal error was committed, but rather that the law officer merely spoke without great care, and used language, which, standing alone, is perhaps susceptible of an interpretation broader than was probably intended — certainly than is correct. However, Judge Latimer has properly suggested that instructions are not to be measured in vacuo, but must be evaluated in light of the evidential setting in which they were furnished. Following this sound direction in the instant case leads me straight to the conclusion that the law officer did not err. However inartful the phrasing, it is certainly not error to tell a court-martial that certain matter does not constitute a legal excuse for crime, if, in truth, it does not.
III
The notion that there was any real question as to whether the accused left his post — in fact or in law — is, I believe, a wholly imaginary one. There simply was no genuine issue on this score. The accused’s outpost was of a stationary — and not a walking — character. According to the testimony of the officer of the guard, it was situated approximately 100 yards from that to which Private Cuff was assigned. Each outpost commanded a view of a different draw, and it was the duty of the sentinel in each instance to observe his post’s draw and — according to the record — “guard against the approach of' the enemy from the mass of hills in the-background.” The draw behind accused’s post could not be overlooked from Cuff’s, nor that behind Cuff’s from accused’s. Yet it is undisputed that the; accused left his station physically and' went to a point some four yards from Cuff. How long he remained there, and', his purpose in going, constituted the-sole subjects of controversy. The accused’s only explanation was that his-telephone was out of order. For whatever it may have been worth, however, the accuracy of this explanatory statement could not be verified for the reason that, when the accused departed to join Private Cuff, he tore “the cable . . „ loose from the phone.”
Whether one may be deemed to have “left his post” depends in my view wholly on the post’s character and mission. Under certain circumstances, one might well be deemed to have remained on his post although he had traveled several hundred yards. Yet under others,, the distance of a few feet may constitute the difference between leaving and remaining. The accused’s post was a stationary one, and its mission was to guard a particular draw. Given the point to which the accused moved, this mission could not possibly have been performed. I believe, therefore, that as a matter of law it may be said that Hattley left his post.
If I am correct in this conclusion, the remaining question becomes one of whether — having left — a legal excuse for the departure was offered by the accused. I am sure that none was. In this connection, Lieutenant Force, the officer of the guard, was asked: “And under what circumstances, if any, was he [the accused] allowed to leave his post ?” To this he replied: “Only if relieved.” Of course there was no suggestion whatever that the accused had been relieved. Again Lieutenant Force was asked: “Would he [the accused] under any circumstances be authorized to leave his post and go over to Post Number 2 [Private Cuff’s post] ?” His reply was: “No, sir.” Palpably the accused was fully aware of this. The. *119record of trial at pages 29 and 30 reports the following colloquy during the course of cross-examination of the accused :
“Q. Isn’t it a fact that you are not supposed to leave your stationary post unless you are properly relieved ?
“A. Sir, you can be relieved by telephone.
“Q. But had you been relieved by telephone ?
“A. No, sir.”
Fully accepting the accused’s version, I am sure that his explanation, described earlier in this memorandum, does not place the transaction in which he participated on the level of those extraordinary and critical situations which may operate to excuse a sentinel who leaves his post before being properly relieved. If this is true, he was not excusable here, and the law officer was wholly justified in saying so.
IV
I am not at all disturbed by the defense’s suggestion that the instruction here was tantamount to a direction of findings for the Government. Factually this might have been true, but it was certainly not as a matter of law. Let us suppose that an accused, charged with robbery, admits all of the damaging facts alleged, but defends solely on the ground that he had kept the first two fingers of his right hand crossed at all times during the performance of the incriminatory acts. I take it that none would deny the propriety of an instruction to the effect that the fact of finger-crossing is wholly irrelevant. Yet, in the absence of other defense, this instruction would be tantamount factually and indirectly to a direction of-findings of guilty. The nub of the matter is that whether certain facts constitute an excuse is a question of law, which the law officer here decided — and not incorrectly in my view. See in this connection Horning v. District of Columbia, 254 US 135, 65 L ed 185, 41 S Ct 53.