(dissenting):
The remarks by the president of the court-martial were inappropriate. It is significant, however, that he did not disagree with the law officer’s ruling or otherwise attempt to usurp the law officer’s duties. Furthermore, he expressly disclaimed any bias against the accused and defense counsel. The record of trial, therefore, affirmatively demonstrates that the untoward outburst was not directed against, nor was it harmful to, the accused. Also, after apparently full consideration of the possible effects of the incident, defense counsel rejected the law officer’s proffer of a mistrial. In these circumstances, the incident does not justify reversal of the findings of guilty. See United States v Talbott, 12 USCMA 446, 31 CMR 32.
As to the instructions, there is no point in my setting them out at length. Suffice it to say that, when they were proposed in an out-of-court hearing, defense counsel indicated they were eminently satisfactory to him. In my opinion, considered as a whole, the instructions did not mislead the court members to the accused’s prejudice.
Each incident presented a simple, factual question. This point was emphasized by both trial counsel and defense counsel in their closing arguments. “The issue,” summarized trial counsel, “is who is telling the truth? This much-assaulted accused or the people who were gunned down.” Defense counsel phrased the matter somewhat differently. The “basic question” in the Sergeant Cooley incident, he said, was whether “Sergeant Cooley engaged in an assault on Sergeant Burse at the time Sergeant Burse shot him”; and in the Noncom-missioned Officers’ Club affair, “seven unimpeachable witnesses” testified “that there was a pistol in the hand of Sergeant Fields,” when he and Sergeant Easley were in the parking lot where the shooting occurred. In the context of the evidence, the arguments of counsel, and the entire instructions, I am convinced that the court-martial was not misled, in its deliberations as to the accused’s guilt or innocence, by any of the phrases carved out of the instructions by the majority. I would, therefore, affirm the decision of the board of review. United States v Lyons, 14 USCMA 67, 33 CMR 279.