Opinion of the Court
Homer Ferguson, Judge:The accused was tried and convicted by general court-martial on specifications alleging larceny, forgery, and fraud against the Government, in violation of Articles 121, 123 and 132, Uniform Code of Military Justice, 10 USC §§ 921, 923 and 932, respectively. The accused entered a plea of not guilty to each specification and Charge. He petitioned this Court alleging that the law officer committed prejudicial error in instructing the court-martial as follows:
“You may find the accused guilty of any offense which you believe beyond a reasonable doubt from the evidence that he has committed. And you should acquit the accused of any offense that you are convinced beyond a reasonable doubt from the evidence that he has not committed. That depends solely upon your determination.” [Emphasis supplied.]
In United States v Rowan, 4 USCMA 430, 16 CMR 4, while instructing the court on the defense of mistake of fact, the law officer stated that the accused must establish the mistake of fact beyond a reasonable doubt. This Court held the instruction to be erroneous inasmuch as it shifted to the accused the burden of establishing that he lacked the criminal intent alleged, whereas the Government always bears the burden of establishing the accused’s guilt beyond a reasonable doubt. We also held the erroneous instruction was *58not cured by the portion of the law officer’s charge which correctly stated the legal formula concerning reasonable doubt and burden of proof. We said:
. . [W]hen two instructions are mutually inconsistent we cannot determine which one was accepted by the court-martial, nor can we say with fair assurance that the finding would not have been different had the burden of proof on this question been placed where it belonged.”
In United States v Noe, 7 USCMA 408, 22 CMR 198, we stated:
“. . . The accused having raised this issue, the Government then had the burden to prove beyond a reasonable doubt that his theory was not correct. If it did not he was entitled to a verdict of not guilty. If the trial court found his mistake both honest and reasonable, the accused was entitled to an acquittal. United States v McClusltey, 6 USCMA 545, 20 CMR 261. But under the law officer’s instruction in order to acquit, the court was required to believe the defense of the accused beyond a reasonable doubt. This placed on the accused the burden of proof in his defense. It was not necessary for the accused to prove the truth of his contentions beyond a reasonable doubt. It was enough if his testimony raised in the minds of the court a reasonable doubt.”
In Noe, supra, we quoted with approval the following statement made by Judge Miller in McFarland v United States, 174 F2d 538, 539 (CA DC Cir) (1949) :
“If a charge to a jury, considered in its entirety, correctly states the law, the incorrectness of one paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudicial, for the jury might have followed the erroneous instruction. Nicola v United States, 3 Cir, 1934, 72 F2d 780, 787; Drossos v United States, 8 Cir, 1924, 2 F2d 538, 539.”
We also quoted with approval in Noe, supra, the Court of Appeals in Smith v United States, 230 F2d 935 (CA 6th Cir) (1956), where they declared:
“. . . When the court gives inconsistent instructions on a material issue this violates the principle that the instructions must not mislead the jury and therefore must be consistent and harmonious. The fact that one instruction is correct does not cure the error in giving another that is inconsistent with it.”
The law places upon the Government the duty to prove the accused guilty beyond a reasonable doubt and there is no burden upon the accused to offer any evidence or to put anything in issue other than the plea of not guilty, which places all material facts in controversy and the burden of proving the case beyond a reasonable doubt remains upon the Government. If the accused is not proved guilty beyond a reasonable doubt of the charge against him, then he should be acquitted. There is never any requirement that the court members be convinced of the accused’s innocence beyond a reasonable doubt before they may acquit. Such a requirement is exactly what the instructions in this case would have imposed.
This Court therefore finds that the instructions were erroneous and prejudicial to the material rights of the accused.
The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Navy for action consistent with this opinion. A rehearing may ba ordered.
Chief Judge Quinn concurs.