(concurring in part and dissenting in part):
I am sure the authority of the Captain of a ship to order a search of areas assigned to particular personnel is broader than indicated in the principal opinion. See Frank v Maryland, 359 US 360, 3 L ed 2d 877, 79 S Ct 804, *74pet reh den, 360 US 914, 3 L ed 2d 1263, 79 S Ct 1292 (1959); United States v Harman, 12 USCMA 180, 30 CMR 180; cf. United States v Blok, 188 F2d 1019 (CA DC Cir) (1951). However, I agree with the conclusion that a search of the accused’s stateroom for possible evidence of a crime was unjustified. I, therefore, join in setting aside the finding of guilty of Charge I and its specifications. As far as the sodomy charge is concerned, different considerations apply.
None of the photographs related to that offense. And the court-martial was specifically instructed that it could consider the exhibits only with regard to the specification to which each applied. It was also instructed that a finding of guilty “of any specification, must not be used ... in determining the guilt or innocence” of the accused as to “any other specification.”
The victim testified directly and un-qualifiedly to the accused’s commission of the act upon his person. While he admitted he was under sedation at the time and he could not recall all that happened in the dental office, he testified to the act and to other matters with a certainty of detail that was significantly corroborated by the accused in his own testimony. The patient testified that when in the dental office with the accused he engaged in a discussion on sex, and he told the accused he had had an abnormal experience when he was about eight years of age; the accused admitted that a conversation with the patient, which started with a discussion about schooling, “drifted” into that area. The patient also testified the accused asked if he had ever performed an autosexual act; the accused admitted he “might have” asked such a question. The patient said that on leaving the dental office the accused asked him if he “could make it back to sickbay O.K.”; he said he thought he could, but he recalled that on the way back he “crash [ed] against the bulkheads.” The accused admitted he “walked behind” the patient while he made his way to the sick bay because the patient “was stumbling, bouncing, bulkhead to bulkhead.” Significantly, he did not say he attempted to help the patient in any way. The accused further testified that if aroused the patient would know “what is going on around him,” but if left alone would, as a result of medication administered to him, “probably lapse right back into a drowsy sleep.”
Other important evidence bears upon this offense. The patient’s clinical record shows, and the accused admitted, he took the patient, who was under the influence of drugs the effect of which would normally “last all night,” from the sick bay to the dental office at about 1:00 a.m. The clinical record shows the purpose of the visit was “for examination,” but the accused testified that in the course of a regular routine check on the patient he found “a very large blood clot in his mouth.” In the office he “remove [d] the blood clot and rinse [d] . . . [the patient’s] mouth out”; after this treatment, he put “some tannic acid on the wound.” The patient’s clinical record contains no entry of such treatment. No report of the treatment was made to the corpsman on duty and the “Doctor’s Progress Notes,” part of the clinical record signed by the accused, show only that he visited the patient several times during the night to see if he “was progressing satisfactorily” and on “each occasion” he merely “encouraged” the use of an ice pack to “control edema and pain.” There is no mention whatever of the finding of a blood clot, or of the removal thereof. Also, the accused testified that the purported removal of the clot took about ten minutes; but despite the fact that the drug-induced condition of the patient was such that' he would tend to go to sleep if there were “no outside stimulants,” the patient engaged him in conversation for about another twenty minutes. Finally, the accused testified the patient asked for, but he did not give him, a prescription for demerol, which is a narcotic; later, however, he “made a prescription out in the ward, and . . . left it on” the patient’s chart. The-medical clerical corpsman on duty in the sick bay testified the doctor “did’not come into the ward” when the pa-' tient returned to the sick bay; and that shortly after his return the 'patient gave him the prescription.
*75As indicated above there is much more present here than a half-remembered story by a person under the influence of sleep-inducing drugs and a consistent, straightforward denial of the commission of the offense by the accused. There is very substantial corroboration of the victim’s account; and there are very glaring deficiencies in, and contradictions of, the accused’s story. In the light of the evidence I find no fair risk that the court-martial, in disregard of the explicit instructions of the law officer, used the photographs to determine the accused’s guilt of the sodomy offense. United States v Higgins, 6 USCMA 308, 20 CMR 24; Woods v United States, 240 F2d 37 (CA DC Cir) (1956); Heinecke v United States, 294 F2d 727 (CA DC Cir) (1961). In rejecting a contention of prejudice similar to that presented here, the Court of Appeals in the Heinecke case, at page 729, said:
“. . . The evidence was introduced to support the count with regard to which it was offered, and in like manner was inspected by the jury. In the court’s charge to the jury the offenses set forth in the indictment were classified into several groups and the jury was advised as to what evidence the government had offered in support of the counts within a group.”
I would affirm the findings of guilty of the sodomy offense.