(dissenting) :
I dissent.
This is an unnecessary reversal, for even if error be conceded there was no prejudice to the accused and no reasonable probability that he will receive any benefit from the action taken by a majority of the Court. While the principles of law stated in Judge Ferguson’s opinion are academically correct, in this setting they are of no significance. Moreover, while the record does not in so many words show that defense counsel was the architect of the instructions, it is a fair inference that the charge given by the president to the court met with his hearty approval. And in this connection, I call attention to the fact that he was a certified lawyer.
The case was tried before a special court-martial and the maximum sentence imposable was a bad-conduct discharge, six months’ confinement, two-thirds forfeitures for the same period, and reduction. The principal offense alleged carries a maximum penalty of dishonorable discharge, five years’ confinement, total forfeitures, and reduction. Assault with a dangerous weapon —the offense which my brothers say may be affirmed by a board of review— permits the same punishment as the most serious crime, except the period of confinement does not exceed three years. The only included offense for which the maximum punishment does not exceed the jurisdictional limits of a special court-martial is assault and battery, and conviction of that crime does not permit the imposition of a punitive discharge.
*501The facts of the case compel a finding that an assault was committed and that a knife, razor or other sharp instrument was used in a dangerous manner. Sixty stitches were required to sew up the various injuries, and the victim was hospitalized for twelve days. As the drama unfolded, the only real issue which developed was whether the •accused was intoxicated to the extent that he could not form the specific intent to injure. Under the clear and precise instructions on intent and intoxication, the court-martial members found he was able to do so. Obviously, the argument is made that they were •compelled to find all elements of the ■greater offense present, for they were offered no reasonable alternative. That .•argument is exploded, however, for the ^president stated specifically:
“. . . Should you fail to find beyond a reasonable doubt that the accused intentionally inflicted grievous bodily harm to Raymond M. Sullivan, •Junior, then you may not find him guilty of assault with intent to inflict grievous bodily harm; however, ■you may, by appropriate exceptions .and substitutions, find him guilty of the lesser included offense of assault and battery, if you are satisfied that the elements of such lesser included •offense have been established by legal and competent evidence beyond a rea•sonable doubt.”
The next step in the process of rea•soning is to assert that had the court been instructed on the lesser aggravated offense of assault with a danger'Ous weapon, it might have returned a finding of guilty of that crime, even though it would not reduce the offense to assault and battery. That much ■may be conceded, although the evidence would suggest to the contrary, but that is not what accused wanted and, much ■more to the point, it would have been -of no importance to him. He was earn•estly seeking to remain in the Air Force and he hoped to escape the imposition of a punitive discharge. A conviction of an assault with á dangerous weapon would, because of its nature and degree of seriousness, dash any 'hope of a sentence which would not include separation from the service. Accused’s only hope to escape that sort of penalty was that the court might find him not guilty or convict him only of assault and battery. Either of those findings would preserve his status in the Air Force, and that must have been trial defense counsel’s strategy for he joined in, and took no exceptions to, the instructions given. Significantly, that is the choice the president gave to the court-martial if it concluded the offense alleged in the specification had not been established beyond a reasonable doubt. Thus it will be observed that the alternative really benefited the accused, because if the court chose to go to a lesser offense it was limited to a misdemeanor as assault and battery would allow the .court to impose only six months’ confinement and two-thirds forfeitures. The additional alternative suggested by my associates would allow the court to find in the felony class of crimes and any finding in that category would make no difference in the instructions on sentence.
Aside from the foregoing, I wonder what prejudice the accused suffered by the alleged error. It can be argued that the conviction which may be sustained under the instant decision carries less maximum confinement than the crime alleged and, therefore, he is harmed. But that contention is more visionary than real, for both are aggravated assaults in the felony category and, when tried in an inferior court, sentencewise one is as serious as the other. The only other contention which can be advanced is that the punishment might be less severe if the findings were in the lesser degree. Under different circumstances, there might be some validity to that argument, but here the president of the court followed the law of this Court and did not inform the court-martial of the maximum penalty imposable. All he told them was this:
“The court is advised that the maximum penalty which may be imposed in this case is a bad conduct discharge, confinement at hard labor for six months, forfeiture of two-thirds pay per month for six months, and a reduction to Basic Airman. The court is further advised that a sentence to confinement at hard labor *502does not automatically operate to reduce the airman involved to the lowest enlisted pay grade and that a reduction to Basic Airman or any intermediate pay grade below the present grade of the accused must be specifically stated as a part of our sentence to be effective.”
The same instruction would have been given had the court reduced the findings to assault with a dangerous weapon. Accordingly, the court-martial would not know whether the maximum penalty for the offense found was five years or three years. All the members can be charged with is knowledge that six months’ confinement with appropriate accessories was the maximum sentence imposable. Under our prior decisions they are barred from learning the punishment set forth in the Table of Maximum Punishments and so I ask,, how can it be argued that if the members had found assault with a dangerous weapon and if they had known the maximum sentence under the Table of Maximum Punishments was three' years, they might possibly have rendered a sentence less severe than the one imposed? The only scale they had was the .jurisdictional limit and that' was the same regardless of findings.
Finally, before reversing a case there ought to be some possibility that the accused will better himself, but in light' of the findings which the board of review is permitted to affirm, it will be a miracle if accused reaps any good from-this decision.
I would affirm the decision of the board of review.