(dissenting):
I dissent.
The board of review considered the second question concerning the error in admitting the testimony of Major Bennett and resolved it against the accused. Its reasons may be gathered from this portion of the opinion:
*13“The third and final assignment of error urges that the accused was substantially prejudiced by the testimony of Major L. F. Bennett, USMC, a prosecution witness. This witness, in response to a question of trial counsel inquiring as to the circumstances surrounding the search and the reasons for it, stated that the search of the accused’s locker had been made because the latter was suspected of blackmarketing activity in cigarettes. Trial defense counsel made no objection to such testimony and, in fact, elicited similar information from a witness for the accused— one Lieutenant Beason, who assisted Major Bennett in the search. Minor errors of this nature are bound to creep into courts-martial. However, a finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. Article 59(a), Uniform Code of Military Justice, U. S., 1951. We do not consider that this error was such as to so prejudice the accused in the instant case. The competent evidence of record is sufficient to sustain the findings of the court-martial. The third assignment of error is also without merit.”
A good argument can be advanced that the testimony was admissible but I need not dwell on that subject for assuming error I concur with the board of review that there was no prejudice. The evidence of guilt on the larceny charge was compelling, the questioned statement was made by a witness who was testifying on the other charge and when consideration is given to the quality and quantity of the prosecution testimony, there is no fair probability that the court was influenced on either findings or sentence by the Major’s suspicions of blackmarketing operations.
I would affirm the decision of the board of review.