(dissenting):
I dissent.
The author of the principal opinion concludes that a violation of Uniform Code of Military Justice, Article 97, 10 USC § 897, may be committed by any person who unlawfully detains another and that the charges in this cause are completely separate for the purpose of determining the maximum sentence which may be imposed. I disagree entirely with the former proposition and in part with the latter.
The accused, pursuant to his plea, was found guilty of resisting apprehension, in violation of Uniform Code of Military Justice, Article 95, 10 USC § 895; two specifications of unlawful apprehension, in violation of Code, supra, Article 97, 10 USC § 897; wrongful appropriation of a motor vehicle, in violation of Code, supra, Article 121, 10 USC § 921; and two specifications of assault with a dangerous weapon, in violation of Code, supra, Article 128, 10 USC § 928. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement at hard labor for five years. As a result of a pretrial agreement, the convening authority reduced the period of confinement involved to three years but otherwise approved the sentence. The board of review found the charges in part multiplicious and purged the error by reassessment of the sentence. We granted accused’s petition for review on further issues of multiplicity and the question whether his pleas of guilty to charges of unlawful apprehension were improvident in view of the contention that Code, supra, Article 97, is limited to misconduct by military law enforcement personnel.
As is not unusual in guilty plea cases, we are offered a scanty factual basis for the charges in the record. All proof was stipulated, and the agreed testimony in its entirety is as follows:
“That on 8 June 1959 Sp-4 Bur-nace W. Hardy did not report for duty at the United States Army Hospital, Fort Gordon, Georgia. Sergeant Neal R. Slagle and SFC George H. Waldroup of the Apprehension Section, Office of the Provost Marshal. Fort Gordon, Georgia, on information from the Medical Detachment, United States Army Hospital, Fort Gordon. Georgia, proceeded to the home of Sp-4 Burnace W. Hardy on Rachel Street, Augusta, Georgia, to apprehend the accused and return him to Fort Gordon, Georgia'. Upon entering the Hardy home the Sergeants made their identity and purpose known to the accused. That the accused refused to accompany Sergeant Slagle and SFC Waldroup to Fort Gordon and prevented the said Sergeants from gaining custody over him by producing a loaded .82 caliber pistol. That Sergeant. Slagle and SFC Waldroup left the accused’s house and went to the vehicle which was parked in front of the accused’s home. SFC Waldroup attempted to call for help over the vehicle’s radio when Hardy came out of the house and ordered the two Sergeants to accompany him to a neighbors home. While in the neighbors home, the two Sergeants locked themselves in a bedroom while the accused was making a telephone call. Hardy then went outside to the bedroom window and pointing the gun through the window into the room ordered the Sergeants back into the living room. The accused then ordered the two Sergeants to go to their vehicle. Sergeant Slagle was ordered into the drivers seat and SFC Waldroup was ordered into the front right seat. Hardy then entered the rear seat of the vehicle. Sergeant Slagle was 'directed by Hardy to drive to Gwinnet Street ex*494tension. While driving on Gwinnet Street extension, Sergeant Slagle veered into the path of an oncoming Augusta Police car at which time SFC Waldroup disarmed Hardy. SP-4 Hardy was then turned over to the Augusta Police by SFC Wald-roup.”
Based on these facts, accused was charged separately with resisting apprehension by Waldroup; unlawfully apprehending Waldroup; unlawfully apprehending Slagle; wrongfully appropriating the military police vehicle; assaulting Waldroup with a dangerous weapon; and assaulting Slagle with a dangerous weapon.
I
The first issue before us is whether a member of the armed forces other than a law enforcement agent may commit the offense of unlawful apprehension. Code, supra, Article 97, provides:
Ҥ 897. Art. 97. Unlawful detention
“Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.” [Emphasis supplied.]
True it is, as Judge Latimer suggests, that we may not ignore the plain meaning of clear and unambiguous language when it is used in a statute. This does not mean, however, that an act may be dissected and various phrases considered in vacuo. Indeed, one of the basic principles of statutory construction- is that an enactment of Congress must be considered as a whole and the legislative intent derived from the sum of its language. Sutherland, Statutory Construction, 3d ed, §4703; Ex parte Public National Bank, 278 US 101, 73 L ed 202, 49 S Ct 43 (1928). As was said in International Trust Co. v American Loan & Trust Co., 62 Minn 501, 65 NW 78 (1895), at page 79:
“. . . It is always an unsafe way of construing a statute or contract to divide it, by a process of etymological dissection, into separate words, and then apply to each, thus separated from its context, some particular definition given by lexicographers, and then reconstruct the instrument upon the basis of these definitions. An instrument must always be construed as a whole, and the particular meaning to be attached to any word or phrase is usually to be ascertained from the context, the nature of the subject treated of, and the purpose or intention of the parties who executed the contract, or of the body which enacted or framed the statute or constitution.”
An examination of Code, supra, Article 97, discloses its application only to unlawful apprehensions, arrests, and confinements. These are terms of art under the Uniform Code and refer only to restraints imposed by those acting in the capacity of persons enforcing the law. Code, supra, Articles 7, 9, 10 USC §§ 807, 809. One may exercise physical control over an individual, but he cannot, in the sense of the Code, take him “into custody,” unless he purports to act pursuant to authority delegated by the Code. He cannot subject him to the moral restraint of an order limiting his movements, and thus place him in “arrest” unless he possesses the authority to do so under Code, supra, Article 9. A similar consideration applies to the exercise of physical restraint amounting to confinement. In short, the use of the technical terms for the various sorts of control over an individual under the Code convinces me that Congress intended Code, supra, Article 97, to provide for the punishment of those officers and other individuals who use their Code-conferred powers of arrest, apprehension, and confinement arbitrarily to harass personnel subject to their control.
Another principle of statutory construction reinforces my belief that Article 97 is so limited. Sutherland, supra, points out that statutes in pari materia are to be construed together. Sutherland, supra, § 5201. A reference to the grouping of the punitive articles in the Uniform Code will disclose that Article 97 is found at the end of the sections relating to the various-punitive sanctions for violation of the limits of lawfully imposed restraints. Thus, Article 95, 10 USC §'895, pun*495ishes resisting apprehension, breach of arrest, and escape from confinement. Article 96, 10 USC § 896, punishes releasing of prisoners without proper authority. Indeed, Article 98, 10 USC § 898, following the section under consideration, is also related to violations of codal procedures. Located as it is among the other Articles relating to breaches of lawfully imposed restraints, I am compelled to believe that Congress sought to punish violations of Article 97 only when they also referred to the same manner of restrictions.
Finally, examination of the legislative history of Code, supra, Article 97, compels the same conclusion. During the hearings before the House Armed Services Committee, the following explanation was made concerning Article 97:
“References. — Proposed A. G. N., article 9 (51). Commentary. — This article should he read in conjunction with articles 7 and 9, wherein those persons authorized to apprehend, ar-Pest or confine are set forth.” [Emphasis partially supplied.] [Hearings before House Armed Services Committee on H.R. 2498, 81st Congress, 1st Session, page 1227.]
During the hearings before the Senate Armed Services Committee, Major General Thomas H. Green, The Judge Advocate General of the Army, suggested that proposed Article 97 be amended in order to prevent prosecutions for purely technical violations by law enforcement personnel. Hearings before Senate Armed Services Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, page 274. While that suggestion does not appear to have been adopted, it evinces an understanding on the part of the Army’s chief military law officer that the Code section was designed to apply only to law enforcement personnel.
The contrary conclusion reached by Judge Latimer is based solely upon the interpretation of Code, supra, Article 97, contained in paragraph 176 of the Manual for Courts-Martial, United States, 1951. Read as a whole, this paragraph indicates that the offense of unlawful detention may be committed by any person subject to the Code. Such a situation is not surprising, for we have heretofore been required to set aside attempts by the drafters of the Manual to circumvent the intent of Congress. See United States v Kelley, 7 USCMA 584, 23 CMR 48; United States v Jenkins, 7 USCMA 261, 22 CMR 51; United States v Kraskouskas, 9 USCMA 607, 26 CMR 387. Surely, it cannot govern where the history and construction of the statute as a whole establishes that the legislative purpose was to the contrary. Accordingly, I am forced to record my disagreement with the disposition of this issue.
II
The second issue before us is whether the law officer acted incorrectly in failing to treat the charge that accused unlawfully apprehended Sergeant Slagle as being multiplicious with the allegation that he assaulted Slagle with a dangerous weapon. I am convinced that he did.
The Government’s argument and the position adopted by the author of the principal opinion unreasonably divide accused’s conduct into segments with respect to these offenses in order to separate them under the various tests announced by this Court. In adopting this approach, I believe they overlook the standard we laid down in United States v Posnick, 8 USCMA 201, 24 CMR 11. There we said, at page 203:
“As it is true that a rose by any other name would smell as sweet, so it is equally true that a man may be punished only once for the same offense regardless of how that offense is labeled. . . .
“To be separate offenses each offense must require proof that is not required to prove the other. This does not occur, as we have pointed out above, when the offense is lesser included in the offense with which it is being compared. To state it another toay, if the evidence sufficient to support a conviction on one charge will support a conviction on another charge, the two charges are *496not separate.” [Emphasis partially-supplied.]
See also United States v Bridges, 9 USCMA 121, 25 CMR 383, and United States v Renton, 8 USCMA 697, 25 CMR 201. Moreover, in United States v Brown, 8 USCMA 18, 23 CMR 242, and United States v Rosen, 9 USCMA 175, 25 CMR 437, we pointed out that a single, continuing act may not be broken into a series of steps in order to support the charging of various offenses. See also United States v Leach, 5 USCMA 466, 18 CMR 90. In sum, we have laid down two tests for multiplicity, each of which blends into the other:
(a) If the same evidence is used to prove accused’s guilt of separate charges, the offenses are multipli-cious for sentence purposes; and
(b) If the specifications merely charge the same act as violations of different sections of the Code, the charges are equally multiplicious.
Consideration of the stipulated proof in the instant case immediately demonstrates that there were but two transactions between the military police and the accused. Initially, they entered his home and attempted to apprehend him. Unsuccessful in the face of his display of force, they departed from the premises and returned to their vehicle. These facts properly supported the allegation that he resisted lawful apprehension. The second transaction commenced when he emerged from his residence and, by use of his pistol, continuously exercised physical control over their movements until they eventually managed to overcome him. Judge Latimer would break this latter transaction into two parts on the basis that the unlawful apprehensions ended and new assaults occurred after the policemen fled into the bedroom and the accused later appeared at the window. Upon the evidence before us, this cannot be done, for it is clear from the stipulation that Slagle and Waldroup were never able effectively to cast off :the restraint which the accused exercised over them. Only one continuous assault is shown, commencing when the accused emerged from his house with the pistol and ending when he was finally subdued. This assault forms the sole proof of the force by which accused “unlawfully apprehended” Slagle and Waldroup. United States v Posnick, supra. It is the same act alleged as violations of both Article 97 and Article 128. United States v Brown, supra. Under the circumstances, “the evidence shows that the acts ‘are not separate steps in the same transaction —they merge into one step.’ ” United States v Rosen, supra, at page 177. Accordingly, I must disagree with the conclusion that the charges of unlawful apprehension and assault with a dangerous weapon are separate.
Ill
The last issue before us is whether the allegations that accused resisted apprehension and the other offenses charged are separately punishable. As heretofore noted, accused’s resistance to being taken into custody by Sergeants Slagle and Waldroup occurred within his residence. The departure of the military police from the premises in order to radio for assistance clearly establishes the separation of this transaction from the subsequent events. Hence, under the tests set forth above, the acts were separately punishable. United States v Posnick, supra; United States v Brown, supra. Accordingly, I am able to join in my brothers’ holding that accused was properly charged with these offenses. Nevertheless, as I am also of the view that the accused could not have committed the offense of unlawful apprehension, and that, in any event, the charges of assault with a dangerous weapon and unlawful apprehension are not separate for sentencing purposes, I must conclude that reversal is required.
I would reverse the decision of the board of review, order the charges of unlawful apprehension dismissed, and return the record of trial to the board for reassessment of sentence.