(dissenting): I dissent.
Upon their pleas of not guilty, the accused were found guilty of housebreaking, various larcenies, and escape from confinement, in violation, respectively, of the Uniform Code of Military Justice, Articles 130, 121, and 95, 10 USC §§ 930, 921, and 895. Following a rehearing on the sentence directed by the board of review and later affirmance by that body of the findings and newly adjudged penalties, we granted review on the issue of whether the law officer erred prejudicially in instructing the court-martial 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.” [Emphasis supplied.]
The term “prima facie” means “at first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure.” Black’s Law Dictionary, 4th ed, page 1353. When applied as a measure of evidence, it means no more than that sufficient proof has been presented to make out a case for the decision of the jury. It is not the equivalent of proof beyond a reasonable doubt and does not require the jury to return a verdict of guilty. Johnson v State, 95 Okla Cr 1, 237 P 2d 909.
In Chaffee v United States, 18 Wall 516 (US 1874), a remarkably similar charge was delivered to the jury. In reversing the cause and remanding it for a new trial, a unanimous Supreme Court stated:
• “The purport of all this was to tell the jury that, although the defendants must be proved guilty beyond a reasonable doubt, yet if the government had made out a prima facie case against them, not one free from all doubt, but one which disclosed circumstances requiring explanation, and the defendants did not explain, the perplexing question of their guilt need not disturb the minds of the jurors; their silence supplied in the presumptions of the law that full proof which should dispel all reasonable doubt. In other words, the court instructed the jury, in substance, that the government need only prove that the defendants were presumptively guilty, and the duty thereupon devolved upon them to establish their innocence, and if they did not they were guilty beyond a reasonable doubt.
“We do not think it at all necessary to go into any argument to show the error of this instruction. The error is palpable on its statement. All the authorities condemn it . . . The instruction sets at naught established principles, and justifies the criticism of counsel that it substantially withdrew from the defendants their constitutional right of trial by jury, and converted what at law was intended for their protection — -the right to refuse to testify — into the machinery for their sure destruction.” [Emphasis supplied.]
In Lilienthal v United States, 97 US 237, 24 L ed 901, the same Court remarked :
“In criminal cases the true rule is that the burden of proof never shifts; that in all cases, before a conviction can be had, the jury must be satisfied from the evidence, beyond a reasonable doubt of the affirmative of the *548issue presented in the accusation, that the defendant is guilty in the manner and form as charged in the indictment.”
In Ezzard v United States, 7 F2d 808 (CA8th Cir) (1925), Judge Lewis pointed out that a prima facie case is unknown in criminal law and remarked pertinently that “In no condition of proof is it permissible to instruct a jury that it had become the duty of defendant to establish his innocence to obtain an acquittal.” And in McAdams v United States, 74 F2d 87 (CA8th Cir) (1934), the use of the phrase “prima facie” in instructions to the jury concerning the effect of possession of recently stolen property was unhesitatingly condemned.
The. foregoing authorities establish beyond question the validity of the ac-cused’s complaint that the law officer’s quoted instruction shifted to them the burden of proof, suggested a presumption of guilt, and permitted the prosecution to meet a lesser standard of proof than that required by law. Indeed, one need go no further than the very words of the charge itself to perceive its substantially improper character. Although it purports to state that prima facie proof does not preclude the existence of a reasonable doubt, it also advises the court that “prima facie evidence of a fact is sufficient to establish the fact, unless it is rebutted.” When these declarations are considered together, it is clear the jury was informed that no reasonable doubt of guilt could exist unless the prima facie evidence was rebutted. Hence, when the accused remained silent and no defense case was presented, the court members, in view of the quoted advice, had no choice but to return findings of guilty. Its effect was to presume accused’s guilt from their silence, cast upon them the burden of proving their innocence, and to permit the prosecution to obtain its verdict on the basis that the evidence was sufficient, not beyond a reasonable doubt, but “at first sight.” Thus, the accused’s reliance upon their plea and their right to present no evidence were converted “into the machinery for . . . [their] sure destruction.” Chaffee v United States, supra,' page 546.
My brothers also conclude that the law officer’s advice was erroneous but find no prejudice to the accused’s substantial rights in view of his other instructions on the doctrine of reasonable doubt and the compelling nature of the evidence of accused’s guilt. I must record my stringent disagreement with this proposition.
The argument that the error was cured by the law officer’s repeated admonitions to the court-martial that the accused’s guilt must be established beyond a reasonable, doubt completely ignores the real vice of the questioned instruction. As pointed out above, a fair reading of its terms compels the conclusion it advises the court that no such doubt could exist if the prima facie evidence was unrebutted by the accused. In such a posture, the evidence was “sufficient to establish the fact.” Therefore, the other exhortations in the instructions concerning the degree of proof required became meaningless. Further, there is nothing in the advice to the court which offsets the elimination of the presumption of innocence, nor did it inform the court that the accused were entitled to rest upon their plea of not guilty and had no duty to prove their blamelessness. Finally, assuming arguendo that the quoted instruction had no further effect than to set out an erroneous standard of proof, other statements concerning the proper standard can have no palliative effect. We have repeatedly rejected the argument that correct exposition of the doctrine of reasonable doubt was sufficient to cure the law officer’s erroneous statement of a different measure of guilt in another part of his charge. United States v Noe, 7 USCMA 408, 22 CMR 198; United States v Rowan, 4 USCMA 480, 16 CMR 4; United States v Skonberg, 10 USCMA 57, 27 CMR 131. Unless these holdings are overruled today, I am at a loss to understand the majority’s reasoning.
The second argument advanced by the author of the principal opinion is the assertion that the evidence of accused’s guilt is compelling. Such a con*549sideration is not applicable where the error involved constitutes violation of a statutory or constitutional norm. Cf. Article 51(c), Code, supra, 10 USC § 851; Kotteakos v United States, 328 US 750, 66 S Ct 1239, 90 L ed 1557 (1946). Nor have we permitted the weight of the evidence to control in situations involving denial of military due process or violations of Article 31, Code, supra, 10 USC § 831. United States v Clay, 1 USCMA 74, 1 CMR 74; United States v Williams, 8 USCMA 443, 24 CMR 253. The instructions here breach even more fundamental concepts for the presumption of innocence and doctrines of reasonable doubt and burden of proof are among the most deeply embedded principles of our legal system. See Coffin v United States, 156 US 432, 15 S Ct 394, 39 L ed 481 (1895); Davis v United States, 160 US 469, 16 S Ct 353, 40 L ed 499 (1895). Indeed, it is so basic in our procedures that the Supreme Court believed an instruction similar to the one here had the effect of depriving the defendant of his constitutional right to trial by jury. Chaffee v United States, supra. I am unable to find that such a substantial invasion of the accused’s rights is so easily cured. To afford that effect to compelling evidence of guilt is to say that an accused, against whom we think the inferences are overwhelming, is not entitled to be heard before a properly instructed court or otherwise to a trial in compliance with the Code. This does not accord with our belief in government under the law rather than by men, and I cannot agree that the evidence of his guilt has such a pervasive effect.
I would reverse the decision of the board of review and authorize a rehearing.