(dissenting):
The difficulty with the principal opinion is that it misconstrues the reason for the separate instruction on alibi. United States v Martin, 15 CMR 796, which the majority cites with favor, points out that when an accused defends on the ground of alibi, and the triers of the facts are instructed only on the elements of the offense, they might mistakenly conclude the accused has the burden of establishing the alibi. No possibility of such mistake exists here.
The court-martial was explicitly instructed it could not predicate guilt upon mere presence at the scene of the crime. It was advised the specification alleged the accused acted with others; consequently, only “if . . . satisfied beyond a reasonable doubt that the accused committed the offense in conjunction” with these persons, could it “find him guilty as charged.” On the other hand, “if . . . satisfied beyond a reasonable doubt that the accused is guilty,” but that he did not act with the others, the court-martial was to except the phrase “ ‘in conjunction with’ ” from its findings. Later, the law officer instructed the court members on the rule of aider and abettor. He told them that if they were satisfied “beyond a reasonable doubt that the accused aided and abetted” the others in the commission of the offense, they could also find him guilty as charged. Finally, the law officer defined the ele*350ments of the lesser offense of assault and battery, and instructed the court-martial it could find the accused guilty of that offense, if “satisfied by legal and competent evidence beyond a reasonable doubt” of each element of the lesser offense, which included the fact that “the accused, without justification or excuse, . . . did bodily harm” to the victim “in a manner” which the court “must specify” in the findings.
Defense counsel has some obligation to monitor the instructions; and if he is satisfied and accepts them without objection, after participating in determining their limits, it is fairly infer-able there is no ambiguity in them that might be harmful to the accused. See United States v Ayers, 14 USCMA 836, 342, 34 CMR 116. It is also significant that the court found the accused guilty only of assault and battery by striking the victim “ ‘in the head with his fists.’ ” (Emphasis supplied.) In my opinion, the law officer’s repeated references to the requirement of proof beyond a reasonable doubt, defense counsel’s apparent satisfaction with the instructions, and the findings of the court-martial, exclude any fair risk that the court-martial was misled as to the burden of proof by the omitted instruction on alibi.
I would affirm the decision of the board of review.