(concurring):
I concur.
Again we are faced with an asserted error in instructions by the law officer without defense counsel, either civilian or military, taking any exceptions at the time they were given. In that situation, we ought not to notice the error unless it would result in a miscarriage of justice. Certainly, that conclusion could not be reached on this record. However, my brothers have disagreed on the prejudicial effect of the instructions and I, therefore, express briefly my reasons for concurring with the Chief Judge.
The affirmed findings of guilty involve twenty-three specifications, and accused’s issuance of worthless checks covered a period of some nine months. Specifically, he stands convicted for making and uttering eleven checks during that period in the amount of $458.22 and wrongfully and dishonorably failing to maintain sufficient funds to pay them upon presentment for payment. The findings on the other twelve offenses of dishonorably failing to pay debts are not in question, and patently they would sustain the present sentence.
The law officer instructed on each worthless check specification separately, and on each occasion the court-martial was informed that it must find the accused wrongfully and dishonorably failed to maintain funds to cover the specific check. He then defined the term “dishonorably” as follows:
“The term ‘dishonorably’ as used in these specifications imports that the failure of the accused to maintain sufficient funds in the Planter’s Bank and Trust Company for payment of each respective check upon its presentment for payment was *146characterized by fraud, deceit, willful evasion, bad faith, gross indifference or false promise. A mere negligent failure to maintain sufficient funds in a bank for payment of checks drawn thereon is not an offense punishable under the Uniform Code of Military Justice.”
The law officer also gave separate instructions on each bad debt count, together with an almost identical definition of the term dishonorably as there involved.
It is often possible to segregate a particular instruction from the entire charge and, by isolating and considering it alone, make defensible arguments that one part is erroneous. But the uniform rule is that instructions should be considered as a whole and if in their totality there is no fair risk that the court would be misled as to the requisite findings for guilt, then reversal is not required.
In reading these instructions, I find that by repetition the word dishonorably stands out so boldly in the very lengthy Charge that it would be the beacon light to guide the court. To make a finding of dishonorable conduct, the court was bound to find behavior more reprehensible than ordinary negligence. Furthermore, there are two positive statements made by the law officer which, as the Chief Judge states, so limit the word reasonable that there is no fair risk .it was interpreted improperly. First, the court-martial was informed that unless the members were satisfied beyond a reasonable doubt that accused’s alleged mistaken belief was a result of gross indifference on his part, they must acquit him. Second, they were told that a mere negligent failure to maintain sufficient funds in a bank for payment of checks was not an offense under the Code.
With those limits marked out clearly for the court, the members could not find this accused guilty beond a reasonable doubt unless they believed his failure to maintain a balance was characterized by fraud, deceit, willful evasion, bad faith, gross indifference, or false promises, and that his mistaken belief, if any, was the result of gross indifference and not mere failure to act in accordance with reason. Being hedged in by these positive proscriptions and being required to find some degree of criminality equal to or greater than gross indifference precludes any possibility that the verdict could have been returned by the court without a finding of the criminal intent necessary to support a finding of guilty of the alleged offenses.
Finally, defense counsel were furnished a copy and read the law officer’s proposed instructions prior to the time they were given. They made several suggestions and had previously submitted theories of their own. They are charged with some responsibility and if clarification was necessary to fit each instruction into a well-knit charge, then there was a duty on their part to make an appropriate request. I can only conclude from their prior knowledge of the charge and their affirmative statements before and after the instructions were given that they desired no further amplification, and that they were satisfied the charge was fair, proper, and not confusing.