(dissenting):
I dissent.
I do not dispute the fact that irregularities occurred in this trial, but they must be measured in the scales applicable to trials before special courts-martial — particularly giving consideration to the unique position occupied by the president. He is required to instruct the court on the law, and I assume from his assignment that he is entitled to read the law and incorporate in his instructions the theories we advocate in our decisions. If I am correct in that assumption, then the senior member of the court participating in the deliberations had the information properly, and I suppose he might have used it in the discussions.
I do not mention the type of forum to dispute the proposition that instructions should be on the record and that defense counsel should be apprised of the guideposts to be used by the court. But I do suggest that the character of court requires us to look carefully for the probabilities of prejudice. In addition, I further suggest that there is no prejudice when a court uses a definition of a word which we have approved in one of our opinions, and so any harm to the accused must come from some other portions of the Williams opinion, 4 USCMA 69, 15 CMR 69.
I am not concerned about the possibility of the court-martial using an appellate test for sufficiency of the evidence as the court was instructed properly on that matter. The accused has been *67twice convicted of this same offense on much the same evidence. The first finding was set aside because of irregularities which had nothing to do with the compelling nature of the evidence, and the second finding was affirmed by the board of review. Accordingly, three fact-finding bodies using appropriate formulas have reached the result that the evidence was convincing.
Finally, I fail to see how a comparison of the facts in the two cases could have misled the court, for in Williams the accused placed essential facts in dispute by testifying contrary to Government witnesses, while in this instance there was not one fact in dispute. Basically, there were three facts which the Government had to prove beyond a reasonable doubt, namely, that the accused had been duly posted; that he was on post; and that he was asleep. The latter fact is the focal point of this decision, and when I measure the facts in this record, I am convinced that the evidence of guilt is compelling. A definition of sleep, be it correct or incorrect, would have had no impact on the findings because all the testimony shows that condition to have existed. We have repeatedly stated that error without prejudice does not require a reversal, and specifically, a unanimous Court indicated in United States v Lowry, 4 USCMA 448, 16 CMR 22, that erroneous reference to case decisions is not necessarily prejudicial. But more to the point, if we apply the rule of United States v Hirrlinger, 8 USCMA 716, 25 CMR 220, and presume prejudice, that presumption is dispelled effectively by the record.
I would affirm the decision o'f the board of review. :