(dissenting):
Hard facts oftentimes make bad law. The facts in this case admittedly are hard. The law announced in the principal opinion is assuredly bad. In United States v Williams, 8 USCMA 325, 24 CMR 135, we held that it constituted prejudicial error for a law officer to fail to instruct where an accused is charged with an Article 134 offense (Uniform Code of Military Justice, 10 USC § 934), that in order to find him guilty, the court-martial must find that the conduct involved was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Accord, United States v Lawrence, 8 USCMA 732, 25 CMR 236; United States v Gittens, 8 USCMA 673, 25 CMR 177. The Williams case was decided October 25, 1957. The case at bar was tried on May 28, 1957. It is somewhat paradoxical to say that defense counsel waived an instructional deficiency by failing to object when the very point was not decided by this Court until some five months later. Perhaps in another case with less revolting facts, this Court will return to the rule laid down in Williams.