(dissenting):
I dissent.
The single question before us in this case is whether trial counsel’s argument and the law officer’s instructions on the affirmative defense of mistake of fact were prejudicially erroneous. All parties agree the evidence raises an issue with respect to the accused’s honest belief concerning the state of his checking account, but the author of the principal opinion apparently finds the instructions, as a whole, correctly delineated the matter for the members of the court-martial. With this conclusion, I must respectfully disagree.
The accused was found guilty of numerous specifications of dishonorable failure to maintain sufficient funds on deposit to pay checks which he had previously made and uttered and dishonorable failure to pay various debts, all in violation of Uniform Code of Military Justice, Article 134, *14710 USC § 934. The matter before us involves only the worthless check offenses.
At the conclusion of the trial, an out-of-court hearing was held in which the question of instructions was discussed. The law officer indicated his determination to advise the court-martial concerning the defense of mistake and informed counsel that all of the instructions “are standard out of this book . . . the law officer’s pamphlet.” Thereafter, the hearing was ended and proceedings in open court were resumed. In his closing argument to the court-martial, trial counsel adverted to the defense of mistake in the following language:
“Gentlemen, in regard again to the checks. The law officer will instruct you on the law. But I want you to note very carefully that, a mistake on your bank balance, to be a defense to these charges, has to be honest and reasonable. Any accused that walks in this courtroom may be the most stupid man on earth but he’s got to be a reasonable man. He’s got to make an honest mistake and as far as his checking account is concerned he’s got to make a reasonable mistake. I’ll ask each member of this court, how many of you write 10 to 15 checks and never check your balance? Is that reasonable?” [Emphasis supplied.]
The law officer’s instructions followed. They are extensive, occupying thirteen pages of the record. His advice with regard to the defense of mistake is as follows:
“The defense has introduced evidence to show that at the time of each alleged offense of making and uttering a check and thereafter wrongfully and dishonorably failing to maintain sufficient funds in the bank for payment thereof, the accused was under the mistaken belief that his bank balance was sufficient to pay each respective check. With respect to this evidence, the court is advised that if the accused was laboring under such mistake and if his mistake was honest and reasonable, he cannot be convicted of these offenses, for it is essential to a conviction for this offense that the prosecution prove beyond a reasonable doubt that the accused had actual or constructive knowledge of the balance of his bank account and that he dishonorably failed to maintain a sufficient balance in the bank for payment of the checks upon their presentment for payment.
“The burden is on the prosecution to establish the accused’s guilt by legal and competent evidence beyond a reasonable doubt, consequently, unless you are satisfied beyond a reasonable doubt that the accused was not honestly and reasonably under the mistaken belief that his bank balance was sufficient to pay the checks upon presentment, and, likewise satisfied beyond a reasonable doubt that his mistaken belief was the result of gross indifference on his part, you must acquit the accused.
“The term ‘utter’ as used in these specifications means to hand over, transfer, or deliver a check by any means with the representation by words or by actions that the check will be paid when presented for payment in due course.
“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 characterized 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.’’1 [Emphasis supplied.]
*148In United States v Kirksey, 6 USCMA 556, 20 CMR 272, a unanimous Court traced the development of bad check offenses in military law and concluded that a mere negligent failure to maintain a proper account balance did not constitute criminal misconduct. Rather, it was held that the element of dishonor involved in the failure to maintain sufficient funds on deposit required a demonstration of willful evasion, bad faith, fraud, or gross indifference. United States v Downard, 6 USCMA 538, 20 CMR 254; United States v Kirksey, supra; United States v Brand, 10 USCMA 437, 28 CMR 3; United States v Groom, 12 USCMA 11, 30 CMR 11. The antithesis of this proposition is, of course, that an honest and not grossly indifferent, rather than an honest and reasonable, mistake is sufficient to exculpate an accused from criminal responsibility for a failure to maintain his checking account properly. Thus, in United States v Downard, supra, we condemned an instruction permitting an accused to escape conviction only if his mistaken belief “ ‘was not the result of such negligence, indifference, or irresponsibility as is sufficient to bring discredit upon the armed forces.’ ” United States v Downard, supra, at page 540. And in United States v Connell, 7 USCMA 228, 22 CMR 18, a unanimous Court, speaking through the Chief Judge, unhesitatingly reversed the accused’s conviction when it appeared that the law officer required accused’s mistaken belief to be “ ‘honest and reasonable under the circumstances’ ” in order to constitute a defense against charges identical to those tried here.
Examination both of the trial counsel’s final argument, in which he directed the members’ attention to the law officer’s forthcoming advice and emphasized the supposed requirement that accused’s mistake be reasonable, and the instructions finally given establish conclusively that the members were repeatedly informed of the standard which we found erroneous in United States v Connell and United States v Downard, both supra. Thus, it would appear that reversal is required here.
The Chief Judge, however, points to the concluding paragraph of the law officer’s advice and distinguishes our prior holdings on the basis that the court-martial was effectively informed it could not predicate findings of guilty upon accused’s negligence alone and, in essence, the term “honest and reasonable” was actually defined as meaning honest and not grossly indifferent.
I suggest that a reading of the instruction quoted, supra, reveals the fallacy inherent in this reasoning. Rather than define “honest and reasonable,” the law officer proceeded to set forth in separate paragraphs of his instructions two distinct standards by which accused’s conduct was to be measured. Initially, he stated that the mistake must be reasonable. Subsequently, he informed the court-martial that it must not result from gross indifference. Indeed, if the advice be taken as a whole, it would appear that, at best, the court was told that a grossly indifferent mistake was simply one which was unreasonable. In short, if the instructions are indivisibly construed, the law officers defined gross indifference in terms of reasonable conduct rather than the reverse. And, in view of the trial counsel’s vehement argument along the same line, I cannot believe that the members applied any standard other than the one which we forbade in United States v Connell, supra.
I offer the foregoing analysis of the questioned instruction merely to demonstrate the lack of any real support for the distinction drawn between this cause and our prior cases. More basically, however, I believe the author of the principal opinion overlooks the fact that the instruction does no more than to set forth two mutually inconsistent standards by which accused’s guilt was to be measured. On the one hand, the law officer and the trial *149counsel dwelt upon the necessity for accused’s mistake to be both honest and reasonable. Later, and almost as an afterthought, the law officer alone extended the proper measure, i.e., that the mistake need be only honest and not the result of gross indifference. In such situations, we have uniformly heretofore held that reversal is required. Thus, in United States v Noe, 7 USCMA 408, 22 CMR 198, we stated, at page 410:
“. . . The law is well settled that the ‘instruction as a whole’ test is inapplicable where the court has been instructed both rightly and wrongly on a material issue. The correct instruction does not cancel out the prejudicial taint of the erroneous one. If two instructions are in direct conflict and one is clearly prejudicial the rule of the correct instruction as a whole does not apply.”
See also, to the same effect, United States v Morphis, 7 USCMA 748, 23 CMR 212, and United States v Alberico, 7 USCMA 757, 23 CMR 221.
Finally, I point out that United States v Holloway, 10 USCMA 595, 28 CMR 161, presented an instructional situation almost identical to that now before us. There, the accused was charged with wrongful possession of marihuana. The defense of honest ignorance of such possession was raised by the evidence. In advising the court of the effect of such ignorance, the law officer initially and properly required only that the lack of knowledge be honest. However, in concluding his instructions, he stated that the accused’s ignorance must not only be honest but also must not result from gross indifference. In reversing, we rejected the Government’s contention that the advice, read as a whole, was proper, and held that, as two inconsistent standards were set forth therein, prejudice was apparent. I suggest that the same result should be reached here.
In sum, then, I believe the only fair construction which can be given to the law officer’s advice, particularly in light of the trial counsel’s argument, is either that the accused was erroneously required to show his mistake was both honest and reasonable or that two inconsistent standards were set forth therein. Under either view, prejudicial error was committed and the pertinent findings of guilty should be set aside.
I would reverse the decision of the board of review and return the record of trial to The Judge Advocate General of the Army with instructions that the board either order a rehearing on the bad check offenses and the sentence or reassess the penalty on the remaining findings of guilty.
It is to be noted that the instructions also contain another infirmity in that they permit accused’s guilt to be predicated upon “constructive knowledge” of the deficient balance in his account. United States v Curtin, 9 USCMA 427, 26 CMR 207; United States v Walters, 10 USCMA 598, 28 *148CMR 164; United States v Nix, 11 USCMA 691, 29 CMR 507. As I believe reversal is required on the basis of the granted issue alone, however, it is not necessary further to discuss this additional matter.