(dissenting):
I dissent.
I am unable to accept the conclusion of the majority that this case should be reversed. The precise le- gal reasons for the reversal are not spelled out but I sense an attempted admixture of sanctions and specific prejudice. For my purposes, it is unnecessary to unscramble them as; whether they are considered separate or together, they do not establish good reason to grant a rehearing. As I view this record there is only one legal question involved and that is, was. the accused denied a trial by a fair and impartial court-martial? I conclude he was not,- and in arriving at my conclusion I am willing to rely on the sworn testimony of each officer on voir dire that the orientation lecture would not influence him, in any manner, in iéaching a fair and just finding and sentence based solely on the evidence adduced and the instructions given by the law officer at the trial. Where, as in those cases cited by my associates, an attempt has been made to bribe a juror and the matter is paraded before the entire panel, whether the impact on any given juror can be self-assessed need not now be determined. But, unless a statement of a juror under oath that he has no fixed opinion on the guilt or innocence of an accused, and that he will decide the case on the evidence and the instructions of the judge, is accepted as worthy of belief, then all trial courts might just as well cast out voir dire of jurors. Those were my views in United States v. Isbell, 3 USCMA 782, 14 CMR 200, and they remain unchanged. It may be, as my associates seem to hold, that appellate judges can better determine the mental state of a court-martial member, than can the member, but I would conclude otherwise.
It. is not unusual for me to use Article 59(a) of the Uniform Code of Military Justice, 50 USC § 646, as the balancing factor to control the disposition of a case. I am not yet convinced that that Article is to be used at the discretion of appellate judges. It provides that a case shall not be reversed unless an error materially prejudices an accused; and unless he makes a fair showing to that effect, an affirmance should be the order. Here, had the instruction given at the orientation conference influenced a finding against this accused, then obviously prejudice would be apparent, but such was not the effect. The theory of the accused was that each member of the court was subject to challenge for cause. His grounds were that to permit any member to sit would prevent the trial from being free from substantial doubt as to its legality, fairness, and impartiality. The court-martial found against the contention of the accused but this Court overturns the finding on the supposition that the 'court members did. not know their own mind. In order to support that seldom relied on conclusion, the record should, at least, contain some evidence that the subjects discussed at the conference were so indelibly impressed on the minds of the court-martial members that the effect could not be measured by them or erased by ordinary instructions. If I were to hold that all court members were removable for cause over their own disclaimer of disqualification, I would be reasonably certain that cause, in fact, and not in fancy, had to be present.
It is most difficult to find civilian precedents which throw any light on the subject before us because in those cases which have reached appellate levels, there is usually some question about the guilt or innocence of the accused. Under those circumstances, any measurable impact might tip the scales against the defendant. The more nearly the scales are in balance, the greater the chance they will be disturbed by Outside influence. But here we are not faced with equilibrium. As will be later argued, in this instance the pan of guilt is filled to overflowing, while the one of innocence contains nothing but a presumption. To offset the imbalance, the Court takes what is no more than a tremor of a leaf and converts it into a quake of such severe intensity that the scales themselves fall *419from the impact. By reversing this finding and sentence, all that is accomplished is to require the Government to retry an accused who, under oath, has admitted his guilt of at least one offense, and who has been convicted of the other offense by evidence which is so compelling that the court-martial had to return a finding of guilty.
The charges were laid under two specifications, both alleging violations of Article 91, Uniform Code of Military Justice, 50 USC § 685. The first alleged willful disobedience of a lawful order of a chief warrant officer. The second charged the accused with assaulting a superior noncommissioned officer who was then in the execution of his office. At the trial of the case, there was no factual dispute about the first offense. Two Government witnesses established all elements of that crime beyond any question of doubt and, while the accused elected to take the witness stand to testify on the second specification, he reserved his preferred status not to testify about the first offense. However, when he was later sworn, and testified under oath, in mitigation, he judicially admitted his willful refusal to obey.
In his testimony on the second specification, the accused admitted assaulting the named noncommissioned officer. His defense was that he was so intoxicated he had no knowledge of the fact that the victim was a corporal. The evidence of the Government witnesses established clearly all elements of the offense and further established that the degree of intoxication was not so great as to interfere with the mental faculties of the accused. During his examination, he testified in minute detail as to all events which had transpired during a period of five hours before the assault. Moreover, his mind was so unaffected he was able to understand that: The corporal had ordered him to leave the dayroom; when he refused to obey, the victim left to inform the officer of the day; he intended to prevent the victim from carrying out his mission and jumped through a window to intercept him; he played pinochle and he observed others playing hearts; there was a difference between the temperature inside and outside the dayroom; and the light in the room was not too bright and two globes were burning. In addition, he first testified that he did not hit the corporal because he concluded “it would be of no use,” and then he subsequently stated that he grabbed the corporal by the collar and told him to “wait a minute.” It readily appears from that testimony that accused’s mental faculties were not impaired by the use of intoxicants, and this Court would have affirmed the law officer’s ruling had he not instructed on the issue of intoxication. In spite of that record of facts, events, and circumstances, the majority of the Court hold this accused is entitled to be retried on the merits. I protest because the instructions given at the orientation conference could not have influenced the court-martial members in determining the guilt of this offender. I believe it fair to say, that conference or no conference, the same findings would have been returned arid no different result can possibly be expected on a rehearing.
I have yet to dispose of any possible influence on the sentence. It is obvious that prejudice would result if the general character of the orientation conference had a tendency to add-to the severity of the sentence. Apparently, the conference did not deal specifically with the principles governing sentences as they are unmentioned on voir dire. However, assuming arguendo they were alluded to, the record is the best evidence of the lack of prejudice on the punishment imposed. The accused was charged with two offenses which would have permitted the imposition of a sentence of confinement for three years, forfeiture of all pay and allowances, and a dishonorable discharge. The sentence meted out was a bad-conduct discharge, confinement for one year, and forfeiture of all pay and allowances. The length and severity of the sentence must be measured by the nature and gravity of the offenses committed and -the previous record of an accused, in so far as it is relevant and properly disclosed to the court. Here, prior to sentence, the accused testified in mitigation and in doing so he disclosed that approximately eighteen months before the time of these crimes he was convicted of lar*420ceny, sentenced to a dishonorable discharge, and a year in confinement. He was placed in a rehabilitation training center, and after having served the required time, the punitive discharge was suspended and he was given an opportunity to redeem himself. That he failed miserably is attested to by his present predicament. Under those circumstances, it would be a bit unusual for any court-martial to adjudge a sentence more lenient than the one imposed on this accused. If there is any duty on one who asserts prejudice to shoulder the burden of showing its probable existence, and I assume there is, the accused in this case does not bear his load.
Paragraph 38 of the Manual for Courts-Martial, United States, 1951, provides that a convening authority may, through his staff judge advocate or legal officer, or otherwise, give general instructions to personnel of a court-martial which he has appointed, preferably before any cases have been referred to the court for trial. The conference held was in keeping with that authorization. Not counting the law officer and counsel for both parties, there were eleven officers detailed to serve as members on this general court-martial. Those officers all attended the orientation lecture and so I believe it to be a fair inference to conclude the purpose of the meeting was not to discuss any particular case. While my associates say there was only one case referred to that court, I have no way of knowing whether anyone was cognizant that such would be the situation when the conference was held. I do, however, know from the record that no particular case was mentioned at the meeting and nothing was said which would bring the facts, issues, or sentence of this case to the attention of the listeners. All officers testifying fix the subject as not being restricted to any given situation and for that reason any injury to this accused must be extracted from generalized statements.
The court quotes at length from the testimony of some of the witnesses and seizes upon part of the language used by some of them to establish that they were misinformed on the law. Personally, I believe the lack of unanimity about the principles of law advanced by the Staff Judge Advocate and the uncertainty of their application argue for the proposition that whatever was said, its effect could have resulted in no more than a slight and indistinct remembrance on the part of the listeners. It is to be remembered that some eleven officers attended the conference and they were all testifying on voir dire from memory. At best, it was difficult for them to express accurately the principles advanced by Colonel Chuck, and that is understandable in view of the scope of the subjects discussed. Most of the witnesses testified that the lecture covered the entire legal processing of an accused from the time of his accusation to final review by our Court. To expect an officer to leave the class with all of the discussed principles, be they expounded rightly or wrongly, so firmly imbedded in his mental senses that super-cautionary instructions must be given to erase their effect is stretching the point. In my judgment every trace of any effect could be removed without difficulty by the instructions given. While this case is analogized to United States v. Deain, 5 USCMA 44, 17 CMR 44, I find no similarity as the flagrant violations requiring reversal there are not present here.
It is suggested in a rather smug vein that an embarrassed major was called as a witness. I do not know why his apologetic manner is important. If he was embarrassed or reluctant to testify it does not follow that the purpose of the meeting was contrary to the Code or that the officers in charge were trying to operate in secret. Defense counsel knew of the meeting as he had previously discussed it with this witness. As a side issue the Major’s discomposure may have resulted entirely from an innocent desire not to be suspected of initiating a proceeding which involved his immediate superior. But that is all beside the point. His only importance in this lawsuit is the evidence he supplies. I am perfectly willing to accept his testimony as being the most accurate reproduction of Colonel Chuck’s exposition on the law. I am quoting verbatim from his testimony:
*421"... And I heard that an investigation is established in three stages. First, there was an investigation for the command in charge. A decision was arrived that an accused had committed an offense. Then there was another investigation by a qualified officer under Article 32 which established — made by an experienced investigator —, where the accused was present and was asked to give all the evidence in his favor, if any, and where a thorough impartial investigation was made. And it was also at this second stage that a decision was arrived at as to the guilt of the accused. Then prior to trial, the Judge Advocates assigned to the case made their own investigation, and for the third time a decision was arrived at as to the guilt of the accused.
“A. Yes, I heard that. This Court was told that they could not consider extenuating circumstances in arriving at a finding as to the guilt or innocence of the accused. That is what I heard.
“Q. Do you recall any remarks by Colonel Chuck to the court concerning the duties of the court and the powers of the court in relation to their judgment and the credibility of witnesses ?
“A. Yes. He told the court they were the jury and it was up to them to decide because sometimes witnesses would lie.
“Q. Referring to the question of the defense counsel and your answer concerning the three stages of investigation prior to trial. Were those remarks by Colonel Chuck a part of a discussion of the total processing of the court-martial from the accuser to the final review, if necessary, by the court of military appeals ?
“A. Yes, sir; basically.
“Q. And this was a part of the total procedure?
“A. Yes, sir. It was.
“Q. Did the remarks of Colonel Chuck to the court include any specific references to the duties and powers of the court as the finders of fact?
“A. Yes. He told the court that they were the jury and that it was up to them to decide. The same as a civilian jury.”
I dare say that substantially the same lecture has been given to most officers in the service. Anyone familiar with the Code would be well acquainted with the principles being advanced. I recognize that in the Major’s reproduction there appears to be one concept not stated accurately. He testifies that Colonel Chuck stated: “a decision was arrived at as to the guilt of the accused,” when no doubt to be absolutely correct the statement should have been phrased to say “the probable guilt.” But when that omission is considered in the light of the other principles given by Colonel Chuck, the instructions by the law officer immediately following the voir dire to the effect that “the evidence presented in the proceedings should not be considered by the court in any way in judging the merits of the case or in reaching its findings or decision as to the innocence or guilt of the accused,” and his charge to the members of the court-martial just before deliberations as to their duty to weigh the evidence, the burden of proof, and the presumption of innocence, there just is no possibility of prejudice.
Much is said about the untoward appearances of a criminal cause which may destroy public confidence. When that concept is exposed to light of this record, it is inapplicable. When there have been clandestine and secret machinations or communications which are difficult to detect and more difficult to prove, then that generality may be successfully and properly considered. But when an orientation conference is held pursuant to statutory authorization and the only point in issue is whether instructions were incorrect, and, if so, could they be corrected by appropriate instruction, the enunciation of that principle is a makeweight. I would, nevertheless, affirm as by any reasonable standards this accused has had his day in court.