(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree with the majority that the former testimony was improperly admitted in evidence. However, unlike them, I believe that the accused was prejudiced by the error.
The majority find a complete admission of guilt in the accused’s testimony. I do not. As I read his testimony, the accused clearly denied, at least, the element of willfulness. He testified that Sergeant Abel was under the influence of alcohol when he gave the orders alleged. On cross-examination as to whether he thought it was right to obey the order of a noncommissioned officer, the accused said, “Well sir, if a man is under the influence of alcohol, you don’t know whether he means the things he says or not.” However, even assuming a full confession of guilt, the admission of the former testimony materially prejudiced the accused in respect to the sentence.
In United States v. Bounds, 1 USCMA 224, 229, 2 CMR 130, the accused entered a formal plea of guilty to a charge of wrongful appropriation. Nevertheless, we sustained reversal of the accused’s conviction on the ground that a fair risk of prejudice was present, in the court’s deliberations on the sentence, because one of the members of the court “may have become aware of facts, not admissible in evidence, and possibly aggravating in character.” Here, the former testimony shows aggravating circumstances which are in direct conflict with the extenuating matters presented by the accused. The inevitable result of a comparison of the two would be the imposition of a more severe sentence. I.have no doubt that the court made the comparison in its deliberations on the sentence.
Accordingly, I would set aside the findings of guilty and order a rehearing.