Opinion of the Court
GeoRge W. LatimeR, Judge:The accused were tried by general court-martial convened at Kadena Air Force Base, Okinawa. Despite pleas of not guilty, they were convicted of a number of offenses which need not be detailed here, and each accused was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for five years. A board of review subsequently ordered a rehearing on the sentences and as a result thereof the term of confinement for each accused was reduced to two years, the discharges and forfeitures remaining unchanged. This sentence was in turn approved by the convening authority and the board of review.
During trial, at the close of the Government’s case, defense counsel requested a fifteen minute recess. At the end of this period, he announced he would make no opening statement and he had no evidence to present. Shortly thereafter the law officer commenced his instructions to the court, and during his lengthy and complete statement on the evidence and the standard of proof required for conviction, he mentioned the concept of prima facie proof. This forms the basis of our present question, and we framed the issue as follows in our grant of accused’s petition for review:
“Whether the accused were prejudiced by the instruction (R. 140) that:
‘Prima facie proof of an essential element of an offense does not preclude the existence of a reasonable doubt with respect to that element. The court may decide, for instance, that the prima facie evidence presented does not outweigh the presumption of innocence. In law, prima facie evidence of a fact is sufficient to establish the fact, unless it is rebutted. . . . ’ ”
The first two sentences of the quoted portion of the instruction are taken verbatim from the discussion of reasonable doubt in paragraph 74a(3), Manual for Courts-Martial, United States, 1951. The entire portion is contained in the instruction on reasonable doubt found in AFM 110-5, Court-Martial Instructions Guide.
Appellate defense counsel’s argument attacking the quoted instruction as erroneous and prejudicial is essentially three-pronged. They contend that the instruction, and particularly the last sentence thereof, suggested a presumption of guilt, shifted the burden of proof to the accused, and required a lesser quantum of proof than the law demands.
The use of the term “prima facie” and a discussion of its legal ramifica-tions has no place in a charge to a jury in a criminal case or to the members of a court-martial when they are about to deliberate on the findings of guilt or innocence, and should not be used. The primary duty of court members at that juncture is to determine on the basis of the evidence, or its absence, whether the guilt, if any, of the accused has been proved beyond a reasonable doubt. When determining guilt or innocence, this is the only standard with which they need be concerned. Moreover, members of a court-martial may not understand the meaning of “prima facie evidence of a fact,” and the interjection for their consideration of questionable phrases and inappropriate theories may lead to confusion and uncertainty. To avoid any such result, we believe the instruction should be discarded, and a reference to a few decided cases will disclose that we are not alone in our thinking on this point. Several Federal courts have considered a similar question, and in McAdams v United States, 74 F2d 37 (CA8th Cir) (1934), we find the following statement:
“Where the government in the trial of a criminal case introduces sufficient evidence to take the case to the jury, it is frequently said that it has made out a ‘prima facie’ case; but we think that the words ‘prima facie’ *546should be avoided in a charge to a jury, since they are not in common use among laymen and are likely to cause confusion of thought and misunderstanding.”
A more lengthy discussion of the term prima facie in connection with the presumption of an accused’s innocence and the burden of proof upon the Government may be found in Ezzard v United States, 7 F2d 808 (CA8th Cir) (1925). See also Chaffee v United States, 18 Wall 516 (US 1874). The vice of the instruction is well spelled out in those authorities, and we agree with the views therein expressed. Accordingly, we hold the law officer erred.
The foregoing holding requires a consideration of the question as to whether the accused were harmed by the error. In United States v Hatchett, 2 USCMA 482, 9 CMR 112, where one of the questions turned on the possible prejudice of an instruction on reasonable doubt, we stated:
. . However, there is a well-understood rule of law, i.e., that instructions must be considered in their entirety and if, when gathered together by their four corners, they state the law properly and with sufficient clarity to be understood by the members of the court-martial, then they are not prejudicial even though one sentence may be technically incorrect.”
When we apply this rule, we have no difficulty in concluding that the accused were not prejudiced by the quoted portion of the charge in the case at bar, and reference to Chaffee v United States, supra, and other cited cases, will disclose entirely different charges to the triers of fact. In the instant case, repeatedly, both before and after the questioned instruction, the law officer charged the court members that unless they were convinced of guilt beyond reasonable doubt, the accused had to be acquitted. He cautioned them that the rule of reasonable doubt extended to every element of the offense and that such a doubt may arise from the evidence or lack thereof. He completed his instruction by stating: >
“The court is further advised:
“First, that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
“Second, that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt shall be resolved in favor of the accused and he shall be acquitted;
“Third, that if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt, and
“Fourth, that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the Government.”
The evidence to sustain the offenses of which the accused stand convicted is not in conflict and is compelling. The Government witnesses established the commission of crimes beyond a reasonable doubt, and both accused made pretrial confessions which were voluntary and given after full warning under Article 31. In addition, the record is entirely void of any evidence which in any way raises any doubt about the guilt of the accused. Their counsel on appeal do not claim otherwise, but they seek to apply the rule that when there are mutually inconsistent instructions and one is clearly prejudicial, the principle that instructions must be considered by their “four corners” does not apply. We accept that rule but, under the posture of this record, the instruction on prima facie evidence was not clearly prejudicial. A fair reading of the charge would convince even a confirmed skeptic that no reasonable person could listen to the instructions and possess any mental belief, except that the burden was placed squarely on the Government to prove every element of the offense beyond a reasonable doubt and that no finding of guilt could be returned unless the court was convinced of accused’s guilt beyond a reasonable doubt. Moreover, even the questioned *547charge, as well as the other instructions by the law officer, properly indicated the presumption of innocence must be negated by the Government’s evidence beyond reasonable doubt. The emphasis and re-emphasis by the law officer on the correct burden of proof and weight of the evidence so overwhelms the single reference to prima facie evidence that the latter fades into insignificance and, consequently, we can say with assurance it had no measurable impact on the findings.
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.