(dissenting):
In my opinion, the evidence fails to show sufficient circumstances to justify the law officer’s instruc tions on aiding and abetting. If the prosecution’s own witnesses, McCall and Harper, are to be believed at all, the fight was over when the accused purportedly approached and stabbed the victim. Although McCall testified that he saw Harper either let Kneer go, or Kneer got away by himself, Harper testified that he “let him go,” because he had “indicate [d] that he didn’t want to fight or anything.” Harper claims that he then walked away. On the other hand, McCall maintains that Harper stood “almost beside him” for a “couple of minutes” while the accused fought with Kneer. The discrepancy as such is unimportant.
The significant fact is that the testimony of both witnesses shows that the struggle was ended before the accused came on the scene. Thus, McCall testified that when Kneer got up from the ground, the accused was still a “good ways behind.” Plarper asserted that he noticed Brown when Brown walked up “after I had let the German up”; the first thing that Brown did when he approached was to ask questions. He “wanted to know who started it, and why he started it.” Consequently, there is no basis whatever for application of the principle of aiding and abetting to the facts of this case. Under the law officer’s instructions, therefore, the court-martial was permitted to speculate on a theory that was not reasonably raised.
In any event, assuming that the question of the continuance of the fight was one of fact for the court members’ consideration, the law officer failed to mention that matter in connection with his instructions on aiding and abetting. In view of the contradictions and conflicts in the prosecution’s case, the failure to instruct properly prejudiced the accused. I would, therefore, set aside the findings of guilty and the sentence, and order a rehearing.