(dissenting):
I dissent.
I find myself totally in disagreement with the many reasons that the author of the principal opinion cites to support his conclusion there was no instructional error in this case and that a common trial was permissible over the accused’s objection and showing of good cause for a severance. To the contrary, I believe an examination of the record and the applicable law will demonstrate that every brick used to support the ultimate affirmance of this case is quite without straw. Indeed, the very num*591ber of arguments advanced to support the validity of the law officer's advice indicates the strain which we place upon basis legal principles in order to sustain the findings of guilty. If the record raises no issue requiring the instruction in question, why is it necessary to rule upon its validity ? Or, if, as is also contended, the instruction is correct, why should the question whether the issue is raised be discussed? These inquiries are, of course, rhetorical, and I submit that the real basis for upholding the decision of the board of review is no more than a disbelief of accused’s innocence.
Fears and Jones were tried in common for wrongful use of narcotics, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934. Fears, whose case is now before us, was sentenced to bad-conduct discharge, total forfeitures, confinement at hard labor for one year, and reduction to the grade of basic airman. Intermediate appellate authorities affirmed, and we granted his petition for review on the issues whether the law officer correctly denied his motion for severance and whether the above-discussed instructions were proper. Jones did not appeal.
On May 20, 1959, criminal investigators and Korean police raided a native residence in Jisan-Ri, Korea. The accused Fears and Jones were apprehended along with other military personnel. A quantity of narcotics and various equipment designed to facilitate its use were discovered on the premises. Accused was observed by an agent of the Office of Special Investigations to drop a cigarette butt on the floor. Analysis of the cigarette “revealed the presence of an opium alkaloid but the amount found was too small for further examination.” Examination of a sample of Fears’ urine also resulted in a positive reaction for the presence of morphine and a negative reaction for the presence of codeine.
The accused Fears elected to testify in his own behalf. He declared that he visited the Korean home at which he was apprehended on the evening of May 20th. His sole purpose was to accompany Airman Frank while the latter delivered his laundry. While there, he did not use any narcotics, nor did he drop a cigarette butt on the floor. He attributed the presence of morphine in his urine to the earlier use of a cough medicine commonly known as “GI gin” and more properly identified as “elixir of terpin hydrate with codeine.” His testimony was corroborated by that of Airman Frank, who also stated that accused used no narcotics at the Korean’s house and was, in fact, arguing with him over Frank’s failure to share the cost of the taxi which they had ridden there. Frank and the accused intended to proceed from the house to a teahouse in order to eat as soon as his laundry had been properly handled.
Stipulated testimony of expert witnesses for the prosecution indicated that chemical tests for the presence of morphine in the body, if that substance is derived from use of codeine, would always be positive for morphine and positive for codeine or negative for morphine and positive for codeine, but not positive for morphine and negative for codeine. Dr. Williamson, the sole Government expert who actually appeared at the trial, reached a different conclusion. He pointed out that whether the test was positive for morphine and negative for codeine depended upon other factors:
“TC: (Interjecting): Positive for morphine and positive for codeine but never positive for morphine and negative for codeine.
“DC: (To witness) : Is that correct, absolutely, in all cases?
“A This, of course would assume which test you are using — if you have had a test of similar sensitivity for both drugs, you’d have to get a test of positive for codeine before you would positive for morphine.
“Q You could get a different result ?
“A That would depend on the sensitivity of the test.
“Q You could use any type of sensitivity you want?
*592“A That’s right.
“Q All right, in your opinion is it possible by chemical analysis to distinguish between codeine and heroin?
“A This is possible but I don’t know the technique or anything; I have read this in my pharmacology books.
“Q In other words, if you had a chemical analysis which read negative for codeine but positive for mor.. heroin, do you believe this would be credible?
“A I don’t know for sure, sir; but I believe it would.”
I
At the outset of the trial, the defense counsel, who represented both Fears and Jones, moved for a severance on behalf of the former. In order that there may be no argument concerning the certainty or the basis for his motion, I set out the pertinent portion of the record:
“DC: For purposes of the record in this put-of-court hearing, I will again move that the case of the United States against Johnnie Fears be severed and tried in a separate action on these grounds: (1) The possibility exists that the other accused will in fact be a witness for Airman Second Class Fears, and I feel that it would be more proper in that case to try Fears on a separate action. That is the primary basis. (2) (And he will be a witness on the merits of the case — Fears—put that in.) (2) Fears has domestic problems at this time which concern his wife in the States. He is working with the Red Cross to settle these problems. If he is convicted today and confined, it will be a great burden and hardship on him to take care of this family business, and this is the basis for my motion.
“LO: Before I ask the government to make reply if it desires to do so, I have a couple questions to clarify your grounds for motion, Captain Tolle. First (1), you say the ‘possibility exists’ — that’s what I heard you say.
“DC: Bad choice of words.
“LO: You’re making this motion on behalf of Airman Fears, and the possibility . . ,
“DC: Right.
“LO: . . . and the possibility exists that Airman Jones may testify.
“DC: Right.
“LO: Of course this is one of the situations wherein grounds for severance — in which a motion for severance is granted at the discretion of the proper authority, but I feel that a mere possibility . . .
“DC: That was a bad word to use. Jones will testify . . .
“LO: . . . will testify for Fears, is that right? — Jones?
“DC: Right. That will occur and has to do with what occurred on the 20th of May.
“LO: What is the government’s reply?
“TC: As to the issue of testifying on behalf of one, that certainly can be done in court today. If Jones desires to take the stand and testify today on behalf of Fears, he certainly can do so in the proceedings which we have today.
“DC: He can do so; it would be prejudicial to his rights because as a law officer and having had trial experience, you can well imagine the effect it would have on the court for one accused to testify for the other. He would in effect be condemning himself.
“LO: Well, I will preface my ruling with the statement that, normally, I would be certainly liberal in the granting of this type of motion. However, I feel that the defense has not produced enough at this point to give me a firm basis upon which to predicate a discretionary ruling that the cases be severed.
*593“DC: So my motion is overruled.
“LO: At this point the motion to sever is denied.” [Emphasis supplied.]
The foregoing extract makes it crystal clear the defense counsel asserted unequivocally that he desired to call his client Jones on behalf of his client Fears; that Jones would testify about the events of the alleged date of the offense; and that if Jones so testified in a common trial, he would necessarily condemn himself. Surely, these facts are enough to put any military judge on notice concerning counsel’s desires and if further information were necessary, to thrust upon the law officer the burden of requesting it. Thus, it is immediately apparent that we are not faced with the situation present in United States v Evans, 1 USCMA 541, 4 CMR 133, where defense counsel “indicated hesitantly that he might wish to call one accused as a witness in the other’s case . . . [and] declined to state that he had any definite intention to do so.” United States v Evans, supra, at page 543. Moreover, it is of utmost importance to note that the Evans case involved a joint trial whereas the ease before us was tried in common. As was there noted by the late Judge Brosman, “Where, as here, a joint offense is charged, a joint trial is a customary and proper practice, . . . In such a situation separate trial is a privilege, not a right.” United States v Evans, supra, at pages 543-544.
Of the distinction between motions to sever in joint and common trials, paragraph 69 d of the Manual for Courts-Martial, United States, 1951, makes the following comments at page 106:
“d. Motion to sever. — A motion to sever is a motion by one of two or more co-accused to be tried separately from the other or others. Occasion for the motion may arise in either a joint or a common trial.
“In a common trial a motion to sever will be liberally considered.
“The motion should be granted in any case if good cause is shown; but when the essence of the offense is a combination between — the parties — conspiracy, for instance —the court may properly be more exacting than in other cases as to whether the facts established in support of the motion constitute good cause. The more common grounds for this motion are that the mover desires to use at his trial the testimony of one or more of his co-accused, or the testimony of the wife of one, or that a defense of the other accused is antagonistic to his own, or that evidence as to the other accused will in some manner prejudice his defense.” [Emphasis supplied.]
In United States v Bodenheimer, 2 USCMA 130, 7 CMR 6, a unanimous Court pointed out that the military common trial procedure was based upon Federal practice. See also Rules 8,13, and 14, Federal Rules of Criminal Procedure. The basis for the combination of defendants in one proceeding is no more than one of convenience to the Government. The measuring of judicial discretion in overruling a motion for severance in a common trial involves the measuring of that convenience against the right of the accused to a fair trial. Cataneo v United States, 167 F2d 820 (CA 4th Cir) (1948). Thus, the consolidation of charges must not place him under “any undue handicap in the matter of his own proof.” Haakinson v United States, 238 F2d 775, at page 782 (CA 8th Cir) (1956). Indeed, the Supreme Court has demanded respect for the right of a defendant “not to be tried en masse for the conglomeration of distinct and separate offenses committed by others.” Kotteakos v United States, 328 US 750, 775, 90 L ed 1557, 1572, 66 S Ct 1239, 1253 (1946).
The facts presented to the law officer show beyond cavil that the common trial deprived Fears of a fair hearing. Defense counsel advised that he desired definitely to summon Jones as a witness on behalf of Fears. The subject matter of Jones’ testimony would deal with Fears’ participation in the events allegedly occurring on May *59420. Reference to the charges and specifications then before him should have made it clear to the law officer that such testimony would have been relevant and material to Fears’ defense. Defense counsel did not leave the matter there, however, for he also brought to the attention of the law officer the fact that, for Jones so to testify in Fears’ case would necessarily result in •self-condemnation, as he would thereby open himself fully to cross-examination by the prosecution on the subject .of his own guilt. The import of the showing made in the out-of-court hearing is simply that counsel was caught, because of the common proceedings, in ,a cross-fire of conflict between his duty to guard Jones’ interests fully and, at the same time, also to represent Fears, to whose case Jones’ testimony was essential.
The case against Jones consisted •chiefly of his confession, the voluntary nature of which was attacked by defense counsel. After raising that issue, ■counsel, consistent with his ethical ■responsibilities, could hardly have called Jones to the stand as Fears’ witness without substantial risk to his entire .case for the former defendant. See United States v Trojanowski, 5 USCMA 305, 17 CMR 305. When he failed, however, to call Jones, he thereby deprived Fears of evidence cogent to that accused’s defense. The result 'is that counsel’s dual representation in .a common trial of both defendants in•evitably caused the sacrifice of one client or the other. He made the probability -of this conflict plainly apparent to the law officer and, in my opinion, Fears ■was accordingly entitled to a severance.
The principal opinion attempts to resolve the issue regarding the severance by reference to the rationale of this 'Court in United States v Evans, supra. As I have heretofore pointed out, that decision involved a joint trial of joint -charges, a situation in which the> law officer has a broad discretion to refuse -severance. In common trials, his discretion is considerably narrowed, Manual, supra, page 106, and it is by this -standard, rather than the doctrine ■ espoused in Evans, supra, that we should measure the propriety of his ruling in this case. Otherwise, we are effectively ignoring the difference between the privilege to consolidate hearings for the mere convenience of the Government, as opposed to its right normally to try joint offenders in one trial. Moreover, it overlooks the impossible situation in which the failure to grant a severance placed defense counsel. Of similar facts, the Supreme Court, stated in Glasser v United States, 315 US 60, 86 L ed 680, 62 S Ct 457 (1942), at page 76:
“. . . Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court.”
Here, the possibility of conflict was made known to the law officer in unmistakable terms. Counsel’s subsequent failure to call Jones as a witness illustrates the dilemma in which he was placed by the common trial. I would therefore reverse the decision of the board of review on this ground alone.
II
Passing to the second issue before us, we are confronted with the question of the sufficiency of the law officer’s instructions on the issue of the wrrongfulness of accused’s use of narcotics, as related to the results of the chemical analysis of his urine. That instruction stated:
“The court is advised that the use of a habit forming narcotic drug may be found to be wrongful unless the contrary appears. A person’s use of a drug is not wrongful when the drug has been duly prescribed for him by a physician and the prescription has not been obtained by fraud or when the use is the result of accident or mistake.
“There has been evidence in this *595case that on or about the date contained in the specification of the charge, the accused Fears was taking for allegedly medicinal purposes a cough syrup containing codeine, popularly known as GI gin. In order to convict the accused Fears, you must be satisfied beyond a reasonable doubt that he wrongfully consumed narcotic drugs on or about 20 May 1959. Consequently, if you find that Fears did in fact consume such cough syrup and that such consumption caused the narcotics allegedly found present in his urine at the time he voided for purposes of the analysis on 20 May 1959, then you mtist acquit Fears, for such use would not he wrongful.” [Emphasis supplied.]
The real vice which I find in the foregoing advice is contained in the italicized phrasing. It requires the court members affirmatively to find that accused consumed cough medicine and that the narcotics in his body resulted from such consumption in order to entitle him to an acquittal. In my view, that instruction is patently incorrect, for all an accused need do is to raise, in the minds of the members, a reasonable doubt concerning whether he wrongfully used narcotics. United States v Rowan, 4 USCMA 430, 16 CMR 4; United States v Noe, 7 USCMA 408, 22 CMR 198; United States v Mallow, 7 USCMA 116, 21 CMR 242; United States v Skonberg, 10 USCMA 57, 27 CMR 131. Nevertheless, for manifold reasons, my brothers conclude there is no prejudicial error involved in the matter. I am in agreement with none of their postulates.
At the outset, much is made of the fact that the instructions, as a whole, conveyed to the court-martial the impression that defense need raise only a reasonable doubt with respect to his use of narcotics. I find no such specific injunction in the law officer’s advice and, indeed, the only reference to the controversy is involved in the instruction which must be condemned. Under such circumstances, I suggest that the most which can be said is that the law officer rightly instructed the court, at one point, that guilt must be established beyond a reasonable doubt but elsewhere erroneously placed the burden: upon the accused to establish the source.' of the morphine as “GI gin.” Two. such inconsistent instructions require-, reversal. United States v Noe, supra; United States v Skonberg, supra.
Secondly, the principal opinion makes-much of the fact that, in an out-of-court hearing, the law officer mentioned the danger of shifting the burden of proof in instructions of this type and asked for defense assistance in drafting an appropriate advice. As the. author notes, one cannot at all be certain that the instruction which resulted was the product of the accused’s counsel, for the record reflects only that the parties busied themselves in writing-instructions. For ought we know, defense counsel drafted an appropriately worded instruction which was silently rejected by the law officer. In other words, we do no more here than speculate concerning the origin of the erroneous advice that is hardly a proper-basis for the implication that the error,, if any, was self-induced.
Finally, the chief ground for rejecting the accused’s well-supported claim of prejudicial error is set forth. It is-the contention that the record contains-, no evidence which reasonably raises an issue concerning the origin of the narcotics in accused’s urine. The principal support for this argument is the stipulated testimony of the expert witnesses to the effect that analysis of urine-would disclose the presence of codeine-as well as morphine if accused had, in fact, used elixir of terpin hydrate. This, however, flatly overlooks the contrary testimony of Dr. Williamson, set forth supra, to the effect that such an unequivocal statement could not be made- and that much depended upon the sensitivity of the tests involved. Moreover, it ignores accused’s fiat denial of conscious use of narcotics, supported by the testimony of Airman Frank, and his not incredible declaration that he-could only suppose that the narcotics came from the cough syrup. The majority opinion’s reasoning might do-very well as a reason for the members of the court-martial to reject accused’s. *596story, but it hardly serves as a basis for our exercise of similar fact-finding powers. ' To the contrary, I suggest that accused’s apparently credible testimony, supported by other evidence in the case, is sufficient to raise an issue requiring proper instructions. As they were not given, it is apparent that he was thereby harmed. Accordingly, I would also reverse on the second issue before us.
I would reverse the decision of the board of review and order a rehearing.