(dissenting):
I dissent.
In my opinion, the law officer’s failure, in his instructions on the sentence, to inform the members of the court-martial that the offenses alleged against the accused were but one crime for the purposes of punishment was prejudicially erroneous. While the principal opinion concedes the existence of such error, it finds lack of prejudice in the fact that, assuming correct advice on the proper maximum sentence, the court-martial adjudged only dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years, such penalty amounting to one-tenth of the permissible confinement.
In United States v Gibbons, 11 USCMA 246, 29 CMR 62, and United States v Wisehart, 11 USCMA 251, 29 CMR 67, this Court held forgery and uttering of the same document on the same day to constitute separately punishable offenses. In those cases, I dissented on the basis that Uniform Code of Military Justice, Article 123, 10 USC § 923, provided only for a single offense of forgery which might be committed either through falsely making a document or uttering a falsely made paper. And where a statute merely punishes a single offense and sets out different ways in which it may be committed, such acts are not separate for sentencing purposes, but merge into one crime. United States v Rosen, 9 USCMA 175, 25 CMR 437; United States v Smith, 7 USCMA 102, 21 CMR 228; United States v Redenius, 4 USCMA 161, 15 CMR 161. I adhere to these views, which I yet believe to be soundly conceived. When they are applied here, together with the position of the parties before us that the utterings and the larcenies were multiplicious, it is apparent the law officer’s instruction on the maximum sentence imposable was correct.
But the propriety of the maximum sentence is not the only aspect of multiplicity. Equally important is the question whether the “exaggeration of a single offense into many seemingly separate crimes . . . create [s] the the impression that the accused is' a ‘bad character’.” United States v Middleton, 12 USCMA 54, 58, 30 CMR 54, 58; United States v Posnick, 8 USCMA 201, 24 CMR 11. As we said in the latter case, at page 205:
“We think that the prejudice in the error goes deeper than merely affecting the maximum amount of punishment. This is only the reflection of the prejudice. The prejudice is that the accused has not had a determination of his sentence on the basis of the single offense he has committed. When this offense is made to appear more numerous than it actually is, by semantical manipulation, the jury must consider only the offense committed by him. Thus, in cases of multiplicity, the law officer, or the president of a special court-martial, must instruct in open court that the maximum sentence imposable is different than the apparent total imposable because of the effect of multiplicity on sentence consideration.” [Emphasis supplied.]
That is the error which is present here, for the law officer, despite the multiplicity involved, limited himself to advising the court-martial of the correct maximum sentence. At no time did he inform the members that accused was actually to be punished for four criminal transactions — as opposed to twelve — and they were left free to adjudge a penalty on the basis of all the specifications before them. As we noted in United States v Posnick, supra, “we *646have no way of knowing what sentence the court might have imposed had they been advised that for the purpose of punishment they could only consider” the four most serious counts. Just as in that case, therefore, I would find prejudice present in this record.
In this connection, I am fully aware of our decision in United States v Green, 9 USCMA 585, 26 CMR 365, that, upon the facts of that case, no prejudice could be found in the failure of the law officer to inform the court-martial it should treat the offenses of escape from confinement and absence without leave as a single crime. Indeed, I was the author of that opinion. There, however, the accused was, in addition to escape and unauthorized absence, convicted of a separate offense of housebreaking. The former offenses were comparatively minor and involved only confinement for one year, whereas the latter permitted a penalty extending to five years. Under such circumstances, it is not surprising we found it unlikely the court-martial, having concluded the accused was a housebreaker, could reasonably have been affected by considering the other two crimes as separate. Cf. United States v Subia, 12 USCMA 23, 30 CMR 23. Here, however, insofar as the members knew, accused was eight times a forger and four times a thief. Under these facts, it would seem clear that a fair risk exists the members may have concluded these findings called for a more severe penalty than would have been imposed had it been properly instructed. United States v Posnick, supra; United States v Middleton, supra. The question of prejudice must be decided in each case on the basis of the record before us and, here, I disagree with the conclusion of my brothers that, because of our decision in Green, supra, the risk is nonexistent.
I would reverse the decision of the board of review and return the record for an appropriate reassessment of the sentence in light of the error.