(concurring in the result):
I concur in the result.
In holding that the law officer did not err in failing to give accused’s second request for instruc tion, the author Judge seems to drift away from the rule previously announced in United States v. Burden, 2 USCMA 547, 10 CMR 45, and United States v. Phillips, 3 USCMA 137, 11 CMR 137. In that line of cases we held that if a requested instruction, even though inaccurate, was sufficient to put the law officer on notice that an issue was essential to a proper finding, he erred if he did not submit an appropriate and correct instruction. The argument of the instant case seems to be that if the instruction is not legally correct, there is no duty on the law officer to submit one covering the issue involved.
I arrive at the same conclusion as does the Chief Judge, but on the grounds that if the issue is adequately covered in other instructions it is not necessary that the one submitted be given, regardless of its legal accuracy or inaccuracy. In this instance, the evidence for the prosecution established an assault with intent' to rape. The accused relied on a defense that the victim agreed to the act for a consideration of 500 yen. Considered in that background the instructions covered the field adequately. I would affirm, therefore, on that ground.