(dissenting):
I dissent.
This Court has followed the general civilian practice in assuming that “sound judicial administration requires that a lion’s share of such errors [erroneously admitted evidence] be regarded as fully reparable through proper instructions.” United States v O’Briski, 2 USCMA 361, 8 CMR 161; United States v Patrick, 8 USCMA 212, 24 CMR 22.
Assuming arguendo that in this instance there was improperly introduced into evidence a pretrial admission of the accused, the law officer ordered the evidence stricken from the record. When one member sought further instructions, the law officer specifically asked him whether he could disregard this evidence. The member answered, “Certainly I can.” From the immediate action taken by the law officer and from the answer received, I am convinced that any irregularity was purged forthwith.
But in any event, when all the Government’s evidence is considered in the backdrop of this record, I am convinced that the questionable evidence would have no impact on the findings of the court-martial members, for there was no real dispute in the facts and, unless the laws of nature have been repealed, the accused had to be the driver. The three persons riding in the rear were found in their seats, either dead or injured, and the passenger in the front was so badly injured he could not move. The accused was injured, he was removed from under the driver’s wheel immediately after impact, and that space only became unoccupied after his removal. In the light of this evidence, I would affirm the decision of the board of review.