(dissenting):
I dissent.
Leaving a post before being properly relieved is one of the most serious offenses known to military law. Its effect upon the security of a command and the safety of individuals whose lives the sentinel is required to protect is incalculable. In time of war its commission is universally punishable by death. However, we are not here concerned with the gravity of the offense. We should not affirm findings arrived at under improper instructions solely because the offense charged is serious. Here, we are concerned with the correctness of the law officer’s instructions and with -the prejudicial effect of error therein.
To convict in this instance the court-martial was required to find the following facts:
1. That the accused was posted or on his post as a sentinel, and,
2. That he left his post before being regularly relieved.
Paragraph 192, Manual for Courts-Martial, United States, 1951. Had the law officer limited his instructions to these essential elements I would have no doubt that he discharged his obligations under Article 51(e), Uniform Code of Military Justice, 50 USC § 626. The instructions did not end there, however, for he then, oyer the objection of the defense counsel, stated:
. . . any evidence regarding why the accused left his post without authority is immaterial to the issue of guilt or innocence; and that in determining guilt or innocence the court must disregard it. * . .”
In this case there was no issue of whether the accused was posted, for this was admitted. The sole issue under the facts, as correctly outlined in the majority opinion, related to the second element of the offense. With reference to this element the accused contended that he had not left his post within the meaning of the Article, because his action in going to the next.post was necessary, and, under the circumstances, reasonable. The law officer’s instruction precluded consideration of this position by the court and hence we must appraise this instruction in the light of the military authorities on the subject.
*120Paragraph 192 of the Manual, supra, provides:
“A post is not limited by an imaginary line, but includes, according to orders or circumstances, such surrounding area as may be necessary for the proper performance of the duties for which the sentinel or lookout was posted. The sentinel or lookout who goes anywhere within that area for the discharge of his duties does not leave his post .... The offense of leaving post is not committed when a sentinel or lookout goes an immaterial distance from the point, station, area, or object which was prescribed as his post, unless he goes such a distance that his ability fully to perform the duty for which he was posted is impaired.”
Colonel Winthrop in his Military Law and Precedents, 2d ed., 1920 Reprint, page 616, states that this offense is committed when the guard is “discovered to be at a place — his quarters for example —quite other than his post, or was seen off his post and at a material distance from it.”
Applying these principles, an Army board of review in United States v. Beaucage, 16 BR 101, declared that a sentinel who went from the prescribed limits of his own post to a point within the limits of a contiguous post to investigate a noise, and then was found sleeping within the limits of the contiguous post, had not left his post within the meaning of the Article.
It is clear from the foregoing that a movement made in the discharge of a sentinel’s duties as required by circumstances, and which does not impair his ability fully to perform the duty for which he was posted, is entirely proper. It further appears settled that the limits of a post can very well be extended if necessity demands, and if a sentinel moves into that extended area for a reasonable purpose, he has not left his post. In every case the reasonableness of the purpose and the materiality of the distance involved are questions of fact and must be resolved by the court.
Here, although the general nature of the terrain was described, there was no-clear showing that the accused’s ability to perform the duty for which he was posted, was impaired. The accused was posted at a gun emplacement, equipped' with a machine gun and armed with a personal weapon to protect himself and his position in the event of enemy attack. Neither of these instruments are-ordinarily considered mere warning devices. His warning device was a telephone. He was expected to use it to warn of hostile advances in the area and thereby permit his organization to cope with the situation before an actual attack was launched. Had he discovered his telephone line had been severed five yards to his rear, would he have been properly performing his duties by remaining inactive in ' his position and then alerting his unit by firing his weapon? I think not. Obviously, he should attempt to remedy the situation and preserve his quieter means of alerting his organization. If it is reasonable for him to move five yards in the proper performance of his duty, then reasonableness of the purpose and of the distance must be considered by the court in resolving controverted factual issues of this type.
It is fundamental that the court finds the facts, and the law officer pronounces the applicable law. Neither can invade the province of the other. Morrissette v. United States, 342 US 246, 96 L ed 288, 72 S Ct 240. The instructions in this case invaded the fact-finding field at a critical point. By directing the court to disregard the accused’s statement, the law officer ruled that the materiality of the distance and of the purpose, the ability of the accused to perform his duties, the limits of his post under his orders, or under the circumstances, had all been decided for them. The one issue in the case had been resolved adversely to the accused. In short, he directed the court to return a finding of guilty. This is a brand new and extremely dangerous practice in criminal procedure. I cannot subscribe to it.
For these reasons, I would reverse the decision of the board of review and order a new trial.