(concurring in the result):
In United States v Bryant, 12 USCMA 111, 30 CMR 111, we reviewed a number of eases dealing with the obligation to instruct on the limited purpose for which evidence of other offenses is admitted. We concluded that the “better rule is that the instruction is a necessary concomitant of such evidence.” Supra, page 115. I adhere to that holding. In my opinion, the law officer here sufficiently instructed the court-martial to consider the evidence of the earlier assault only if it tended to establish the accused’s complicity in the offense charged, and not merely to infer his guilt of that offense because he had committed another and different wrong at a previous time. Thus he said:
. . The evidence, as I recall it, is that the accused and one other earlier in the evening had gone out. The accused had had a fight with someone and then the accused had returned to his quarters. Later one of the witnesses testified, he went back to the quarters of the accused and again enticed him to come along with him and then that they picked up the third person . . . they walked along the field . . . [and] Feirn was assaulted or attacked, and $2.00 was taken from him. You will have to determine whether the accused participated as an aider or abettor or whether there was any concert of purpose given this act pri- or to the time that the three participants, or the three were at the scene of it. If there is concert of purpose to do a given act, and such act is done by one of the parties, all probable results that could be expected from the act are chargeable to all the parties concerned, but in order to make one liable as principal in such a case, the offense committed must be embraced by the common venture, or it must be an offense likely to result as a natural and probable consequence of the offense directly intended. Now it wouldn’t be directly intended if the accused and those accompanying him went out only for the purpose of fighting. It wouldn’t be directly intended that they would rob also.”
If the accused wanted further amplification of the limited effect of the evidence he should have requested it. I, therefore, join in affirming the decision of the board of review.