(concurring in part and dissenting in part):
I concur in part and dissent in part.
I join the Chief Judge in his holding that the evidence was admissible. However, I do not believe the conviction should be set aside and a rehearing ordered because the president of this special court failed to give an instruction on the limited use of the evidence.
I, of course, believe that it is much the better practice to give any instruction which will aid the court, but there are two reasons why I would not reverse these findings. The nature of the separate offenses was identical with those alleged, and in black-marketing operations there is little likelihood that the court-martial members would consider the evidence of similar sales for any illegitimate purpose. More likely they would treat it as evidence of a plan or design which would negate the possibility of accused acting innocently. If considered in that light the absence of an instruction would be harmless. Moreover, I. point out that upon defense counsel’s objection, counsel for both parties argued the admissibility of the evidence under the exceptions listed in paragraph 138g, Manual for Courts-Martial, ^nited States, 1951. Thereafter, the members of this special court ruled .on the objection, so it would appear they were aware of the limited applicability of the testimony.
The principal reason for my disagreement, however, arises out of a belief that my associates are not realistically applying the doctrine of waiver. Here there was no request for an instruction directing the court-martial to limit its consideration of. the evidence. While ordinarily we have not applied the rule of waiver in special court-martial cases, the reason for the rule is not present in the case at bar. Generally speaking, the services do not furnish certified lawyers to persons who are being tried by special courts-martial, but the Air Force usually does, and in this case the accused was represented by a qualified attorney. In United States v Haimson, 5 USCMA 208, 17 CMR 208, we specifically held that, unless a request was made for an instruction informing the court-martial that testimony could be considered only for a limited purpose, an accused could not complain on appeal that an instruction had not been given. This is the language we used:
“The only instruction to which the accused was entitled would have been one to the effect that the members of the court might not permissibly consider the evidence of specific misconduct as showing an evil disposition, or criminal propensity, on the accused’s part, and from the fact of that disposition infer that he had committed the offenses alleged. Such an instruction would certainly have been appropriate. But the law officer — we are equally sure — was under no duty sua sponte to charge the court regarding this aspect of evidence. The burden of requesting such an instruction rested on defense counsel. Cf. United States v Johnson, 3 USCMA 709, 14 CMR 127; United States v Schumacher, 2 USCMA 134, 7 CMR 10.”
Apparently we are now placing a greater responsibility on a legally untrained president than we have previously saddled on a member of the bar. I emphasize greater because we refused to reverse a law officer in the Haimson case, supra, but with qualified counsel representing an accused in this case,we say that the president must assume full responsibility for the alleged lack of instructional guidance. That may seem rational to my *117associates, but it seems paradoxical to me to say that an omission by a law officer can be waived by certified counsel when representing an accused in a general court-martial but the same omission by a president cannot be waived by the same lawyer when performing his duties in a special court-martial. In my opinion, if the right to have an instruction given to the court-martial can be waived by a lawyer in a general court, a fortiori'the same right can be waived by a lawyer in a special court. If that is not so, then, under similar conditions a president of a special court has a higher duty to protect an accused than does a qualified legal officer.
There being no miscarriage of justice if the doctrine of waiver is imposed, I would affirm the decision of the board of review.