Opinion of the Court
Robert E. Quinn, Chief Judge:The appellate is one of ten airmen who were tried and .convicted at a common trial for wrongful possession of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. On review, a board of review set aside the findings of guilty as to all accused, except the appellant, on the ground that the evidence did not show conscious knowledge of the presence of the prohibited substance. As to the appellant, the board of review concluded the possession of a “partly-*34filled marihuana cigarette, which is unusual and distinctive in appearance and of such size as not to be readily-overlooked” was sufficient to establish beyond a reasonable doubt conscious knowledge of possession.
Before this Court, the accused contends it was prejudicial error to order a common trial of ten accused, each of whom was charged individually and separately with the possession of marihuana. In principle, it is indeed error to direct a common trial for cases as separate and distinct as those tried below. United States v Alvarez, 10 USCMA 24, 27 CMR 98, decided this date. However, the record of trial affirmatively shows that the accused’s civilian counsel, one of whom was a a member of the Bar of the highest court of the State of New York and of the United States Court of Appeals for the Second Circuit, and the other a member of the Bar of the highest court of the State of Pennsylvania and of the Bar of the United States Supreme Court, agreed with trial counsel before trial to hold a common trial. It was on the basis of that agreement that the convening authority directed the ten cases be tried in common. At trial, it was represented that the agreement was made to expedite the trial of the cases, because certain witnesses were coming from other stations. The challenge proceedings indicate a further reason for the defense’s consent to the joinder. Defense counsel maintained that a member of a court-martial “who has sat on a hearing of facts on a similar or companion case,1 is under a conscious or unconscious pressure to hold similarly in a case involving the same set of circumstances, and, in many respects, the same witnesses.” This assumption was made the basis for challenge of several members of the court-martial because they had acted as court members in earlier cases against other accused for similar offenses. Consequently, there is present here not simply a failure to object, but a positive agreement to a trial in common. The accused cannot turn his own affirmative consent at the trial into a ground for reversal on appeal. See United States v Jones, 7 USCMA 623, 23 CMR 87.
The decision of the board of review is affirmed.
Judge Latimer concurs.Defense counsel considered the cases as “similar and related” because the “same officers . . . preferred the charges, [and] the same investigation was conducted by the same personnel.”