(dissenting):
I dissent.
In view of accused’s theory of the ease that the group was merely playing a joke on the victim, a defensible position on the admissibility of the testimony can be taken. However, a discussion of that issue is unnecessary, as defense counsel’s failure to object to the admission of evidence is a waiver precluding its appellate consideration, unless the application of that doctrine would cause a manifest miscarriage of justice. United States v Masusock, 1 USCMA 32, 1 CMR 32; United States v Stewart, 7 USCMA 232, 22 CMR 22. The majority resolves nothing upon this issue and when I look at the record I find such compelling evidence of guilt of the crime charged that there is no question of that nature involved.
One further principle discussed by the board of review must be considered. As a secondary ground to sustain its reversal the board reasoned:
“Even if it could be assumed that the evidence was admissible as relevant on the secondary issue of group intent, its admission without some limiting instructions raises more than a fair risk of prejudice to the accused. The group intent especially, where based on a separate offense committed without the presence or knowledge of the accused cannot be imputed to the accused. His specific intent must be separately determined. . . . The danger of this type of guilt by association reasoning is manifest. Dis-affirmance of the findings is required.”
There was no request for such limiting instruction by defense counsel in this case and therefore the language of United States v Haimson, 5 USCMA 208, 231, 17 CMR 208, which follows, controls.
“The only instruction to which the accused was entitled would have been one to the effect that the members of the court might not permissibly consider the evidence of specific misconduct as showing an evil disposition, or criminal propensity, on the accused’s part, and from the fact of that disposition infer that he had committed the offenses alleged. Such an instruction would certainly have been appropriate. But the law officer —we are equally sure — was under no duty sua sponte to charge the court regarding this aspect of evidence. The burden of requesting such an instruction rested on defense counsel. Cf. United States v Johnson, 3 USCMA 709, 14 CMR 127; United States v. Schumacher, 2 USCMA 134, 7 CMR 10.”
I would reverse the decision of the board of review.