(dissenting):
I dissent.
With due respect to my brothers, I disagree with the denial of relief to the accused in this case. Unlike them, I would reverse for the failure of the law officer to grant the defense motion regarding the charges in question; his refusal to entertain objections addressed to the issue of search and seizure; and his unfair comments and instructions regarding the possession of marihuana. I have seldom seen a case which so clearly requires corrective action, for the reasons which I will hereinafter develop.
The accused was tried by general court-martial at Suffolk County Air Force Base, New York, upon charges of wrongful possession, use, and sale of marihuana, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934. He was convicted of three specifications and sentenced to confinement at hard labor for twelve months, forfeiture of $75.00 per month for twelve months, and reduction. The convening authority approved the sentence and the board of review affirmed. Thereafter, we granted accused’s timely petition for review. The issues will be discussed seriatim.
I
Specifications 1 and 2 of the Charge alleged, respectively, wrongful possession and wrongful use of marihuana “at divers times during the period from on or about 1 March 1964 to on or about 2 December 1964.”1
Immediately following arraignment, defense counsel moved to have these counts made more definite and certain, as “it is almost impossible to discover when he is being charged with this crime ... as being too vague and indefinite.” The motion was denied. Thereafter, the evidence indicated use and possession of marihuana on at least twelve different occasions between the dates specified.
The primary purpose of criminal pleading is to advise the accused of the offense with which he is charged and give him sufficient information to prepare his defense. United States v Sell, 3 USCMA 202, 11 CMR 202. The utmost precision is, of course, not re*348quired, but the count must be such as “sufficiently apprises the defendant of what he must be prepared to meet.” United States v Sell, supra, at page 206.
Thus, it is generally held, “in the absence of statute, that an indictment or information must state with particularity the time at which the offense alleged therein was committed.” 27 Am Jur, Indictments and Informa-tions, § 70. There must be set forth “reasonable particularity of time, place and circumstances.” United States v Cruikshank, 92 US 542, 558, 23 L ed 588, 593 (1876). The particulars set forth must be such as to enable the accused to make his defense to the crime alleged. United States v Hess, 124 US 483, 31 L ed 516, 8 S Ct 571 (1888). See also Ball v United States, 140 US 118, 35 L ed 377, 11 S Ct 761 (1891). As was succinctly stated in Barnes v State, 42 Tex Crim 297, 59 SW 882 (1900), at page 882:
“. . . It is necessary, in charging an offense, to set out some particular date when the offense was committed. Such is the unbroken line of authorities since the case of State v Eubanks, 41 Tex 291.”
Reasonable particularity is clearly lacking here. The accused was faced with an allegation of misconduct. on divers occasions over a period of ten months. Under such a pleading, the Government was allowed to show anything which might incriminate him in that period. Thus, it could — and did —range unchecked over a period of almost one year in producing evidence of accused’s alleged misconduct. As Aloyian’s counsel noted, defense against such a broadside attack is almost impossible. An alibi, attacks on credibility, and similar parries to the Government’s case simply become impossible if it, by such averments as this, is enabled to make the accused meet and account for his conduct for almost an entire year. In short, he is entitled to reasonable notice as to the offenses on which he is arraigned, and this of necessity must include a reasonable limitation on the allegation of time. United States v Sell, United States v Cruikshank, both supra. Such is not present here.
Moreover, by moving to make the specification more definite and certain, the accused was seeking particulars from the Government as to the nature of the charges against him. In United States v Williams, 12 USCMA 683, 31 CMR 269, we clearly pointed out that, while the modern tendency, is to short forms of pleading which allege only legal conclusions,
“. . . resort to such pleading is always subject to a motion for further particularization. Bartell v United States, 227 US 427, 57 L ed 583, 33 S Ct 383 (1913); Myles v United States, 170 F2d 443 (CA5th Cir) (1948); 27 Am Jur, Indictments and Informations, §§ 83, 112, 113; Annotation, 5 ALR2d 444, 462.” [United States v Williams, supra, at page 685.]
See also United States v Paulk, 13 USCMA 456, 32 CMR 456, at page 458, wherein we referred to “the burden of the United States to particularize a general averment of criminal conduct, especially when the count in question is so phrased as to permit the prosecution to range widely through proof of different offenses in order to satisfy the fact finders of accused’s guilt.”
From the foregoing, it is clear to me that the specifications in question were improperly drawn and subject to further particularization. Therefore, I am of the view that the law officer erred prejudicially in denying accused’s motion for appropriate relief.
In so concluding, I do not overlook my brothers’ rationale, based as it is on the result reached in United States v Means, 12 USCMA 290, 30 CMR 290. There, the Chief Judge opined that allegations similar to those now before us were legally sufficient, although he expressly noted it was “open to an accused to demand further particulars if he believes that he has insufficient information about the details of the offense charged.” Means, supra, at page 292, footnote 1. Judge Latimer, concurring, declared that a single use of marihuana might not constitute service-discrediting conduct and, there*349fore, it was open to the armed services to allege a course of behavior. I dissented on the basis that the count was vague, indefinite and duplicitous, conditions which I likewise find to exist here. I declared, at page 296:
“Military practice permits the allegation of only one offense within the terms of a single specification— just as in civilian practice an indictment is allowed normally to allege no more than one offense within the confines of a single count. United States v Parker, 3 USCMA 541, 13 CMR 97; Manual for Courts-Martial, United States, 1951, paragraph 286; Rule 8 (a), Federal Rules of Criminal Procedure. Transgression of this rule results in duplicitous charges and, upon the making of a proper objection, the accused is entitled to have the allegation against him reduced to a single offense in order that he may know upon which act the Government relies for conviction and prepare his defense accordingly. See, generally, Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 139, 140, 143. Moreover, he is entitled to correction of the duplicity in order to avoid the contingency that some of the court members may base their vote of guilty upon one act of misconduct while others, unconvinced of that occurrence, predicate their vote upon the other, duplicitous act. Wiborg v United States, 163 US 632, 41 L ed 289, 16 S Ct 1127 (1896); Rolando v United States, 1 F2d 110 (CA8th Cir) (1924).”
I cannot accept Means, supra, as dis-positive of this case. Not only did I there disagree with my brothers, but their separate opinions hardly make it of precedential value. Moreover, since the division occurred in that case, we have steadily moved away from its reasoning. Thus, in United States v Williams and United States v Paulk, both supra, we emphasized the right of the defendant on motion to -receive further particularization of the charge. In Paulk, supra, and more recently in United States v Davis, 16 USCMA 207, 36 CMR 363, we reversed when the Government included within the bounds of a single count more than one offense. In my opinion, these cases have severely impaired the divided holding in Means, supra, and rendered its holding practically nugatory. Hence, despite the similarity between its facts and those of the case now before us, I cannot accord it controlling weight here.
Finally, I would direct my brothers’ attention to the consequences of upholding such specifications as this, which embody an unknown number of criminal acts. With the evidence in conflict, it is almost certain that the members of the court-martial are likely, to reach agreement on the basis of widely differing acts within the count. Thus, it may well be that two-thirds of the court will not agree on the same acts and a proper verdict will not be reached. At least, there is a fair risk such may occur when we permit shotgun-type pleadings to be used indiscriminately. See my concurring and dissenting opinion in United States v Carter, 16 USCMA 277, 36 CMR 433. In sum, the purpose of criminal pleading is to narrow the issue presented to the jury and not to furnish it with a barrel of matters from which to pick and choose a basis for their findings.
I would set aside the findings of guilty of specifications 1 and 2 of the Charge on the basis of the law officer’s denial of the defense motion to have them made more definite and certain.
II
The second issue deals with the search and seizure of marihuana from the locker of accused’s accomplice, Airman Campbell, which allegedly belonged to the accused. A statement of the relevant circumstances is in order.
The accused roomed with Airman Pryor and Airman Campbell in Room 109, Barracks 313. Pryor testified accused, Campbell, and an Airman Moore smoked marihuana together on numerous occasions.
In November 1964, Airman Tom-asulo informed Chief Master Sergeant Hitchman, Air Police Superintendent, that marihuana was being used in the squadron. The information was *350passed to the squadron commander, Major Eggleston, and the Office of Special Investigations. On November 24, Tomasulo was given a five-dollar bill and told to make a purchase of marihuana. According to his testimony, he did so, on November 25, from the accused. The substance was turned over to Hitchman, analyzed, and found to be marihuana. This information was also passed to Major Eggleston. On December 2, Tomasulo was instructed to make another purchase, with marked money. He approached the accused, who ultimately declared he would send it over. About fifteen minutes later, Airman Campbell delivered a packet to Tomasulo, received payment for it, and left.
Based on the foregoing information, as well as police reports from accused’s home area, a search authorization was procured from Major Eggleston in writing. This “warrant” permitted the search of the “person, dwelling room, footlocker, Room 109, Barracks 313, located at Suffolk County AFB, N. Y. of Allen C. Aloyian, A3C” and the agents “to seize any property pertinent to this investigation.”
Thereafter, the agents, accompanied by Major Eggleston, proceeded to accused’s room and stated they wished to search for marihuana. An examination of accused’s locker being unproductive, a search was made of Campbell’s locker. Two packets of marihuana were discovered in his clothing. A plastic bag of the drug was discovered sitting in the locker. As to this bag, Campbell testified:
“Q. Had Airman Aloyian ever discussed this bag with you, with reference to placing it in your locker?
“A. Approximately two weeks or so before the 2nd of December, Airman Aloyian asked me to put it in his, put it in my locker.
**. .• . The circumstances I don’t remember just at this time. I don’t remember exactly what he said. He asked me to put it in his locker, and, or, to put it in my locker. The reason, something at, something at home.”
While Campbell was testifying, the defense sought an out-of-court hearing and objected to the receipt of this evidence on the basis of unlawful search and seizure. Trial counsel argued that, as the items came from Campbell’s locker, none of Aloyian’s rights were violated. The law officer ruled, “If they were not taken from the accused’s possession, I see no problem.” Upon the defense contending accused was Campbell’s roommate, was present during the search, and was accused by the Government of the marihuana’s possession, the law officer declared, “If these items were in Campbell’s locker, and he is not objecting to the search made of his locker, I don’t see where the accused can object to it.” After further presentation of authorities, the following colloquy occurred:
“LO: I am overruling you, on the basis that it is not an illegal search and seizure.
“IDC: So, it is your ruling that we have no standing to raise the issue?
“LO: You have standing to raise the issue, and I am ruling against you.
“IDC: Sir, if you say we have standing, that means the government must show probable cause.
“LO: I don’t know what you mean by standing.
“IDC: We have a right to object.
“LO: You have a right to object and I have a right to make a ruling. I am overruling your objection. Now, let’s go on with the case. I understand the implications of what I have done.
“IDC: We take exception to the Law Officer’s ruling.
“LO: You don’t have to. You have got your objection on the record. Let’s call the court in and go ahead, unless there is something else you want to produce. I denied it on the basis that when three men are in one room and each have their own locker, if it is not the accused’s *351locker, as far as I am concerned it is not an illegal search and seizure.”
When the objection was later renewed, the following exchange occurred :
“IDC: Sir, we would object on the grounds we have been denied the right to raise issues of illegal search and seizure.
“LO: Nobody has denied you the right to do that. Who denied it to you?
“IDC: You did, sir.
“LO: I did? I did not.
“IDC: You said we had no standing.
“LO: All I did was pass on the facts as presented to me. I haven’t told you that you can’t bring up any question you want at any time. The facts I heard, there was no question of search and seizure, but you can raise it at any time you want.”
Major Eggleston was not called as a witness, nor, indeed, in light of the law officer’s ruling, were the facts and circumstances surrounding the issuance of the warrant or the conduct of the search developed to any great extent. Thus, whether Major Eggleston authorized the search on the basis of probable cause and whether the “warrant’s” permission to seize any property pertinent to the investigation was ever, as required, narrowed to particularly sought matters remains unexplored, especially as regards any basis for searching Campbell’s locker. See, e.g., United States v Barkouskas, 38 F2d 837 (MD Pa) (1930); United States v Hartsook, 15 USCMA 291, 35 CMR 263.
There can be no doubt from the foregoing that the law officer, though stating his willingness to hear any objection, ruled against accused on the sole basis that, as to him, there was no illegal search, for he had no right to complain of an examination of Campbell’s locker. Thus, while he expressed a commendable willingness to listen to the objection, he declared he saw no grounds on which accused could complain of a search of Campbell’s locker; he gave no recognition to accused’s “standing” to object to that search; and finally concluded “there was no question of search and seizure.” Yet, Campbell testified the marihuana was accused’s property; he had given the accused permission to keep it in his locker; he had smoked marihuana with the accused on numerous occasions; and on December 2, had actually delivered the packet of the drug to Toma-sulo and received payment therefor. Indeed, the law officer ruled he was an accomplice of the accused on that date and, accordingly, instructed the court-martial as to the weight which it might accord his testimony.
This denial by the law officer of accused’s right to complain of the search of Campbell’s locker and the seizure therefrom of the critical evidence is the crux of the problem before us. In my opinion, it was clearly erroneous and, in light of the fact that such established accused’s possession of the drug, prejudicially so.
In Jones v United States, 362 US 257, 4 L ed 2d 697, 80 S Ct 725 (1960), a very similar situation was presented. There, officers executing a search warrant arrested the accused in a friend’s apartment. Narcotics and narcotics paraphernalia were found in an awning. An officer had seen the accused place his hand in the awning. Accused used the apartment with the tenant’s permission, had a key, and kept clothing there. He paid nothing for the privilege. He was charged with possession of the narcotics. His motion to suppress the evidence was denied on the basis he had no standing to complain of the search of the apartment. In reversing, the Supreme Court, through Mr. Justice Frankfurter, declared, at page 263:
“. . . Two separate lines of thought effectively sustain defendant’s standing in this case. (1) The same element in this prosecution which has caused a dilemma, i.e., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when *352standing is challenged. (2) Even were this not a prosecution turning on illicit possession, the legally requisite interest in the premises was here satisfied, for it need not be as extensive a property interest as was required by the courts below.
“As to the first ground, we are persuaded by this consideration: to hold to the contrary, that is, to hold that petitioner’s failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner’s conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e).”
In answer to the Government’s argument that accused was only a trespasser or invitee, and taking up the second ground set forth in its opinion, the Court rejected any idea that gossamer distinctions of property law were to play any part in search and seizure cases. It stated, at page 267:
“. . . No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner’s testimony established Evans’ consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.”
See also United States v Jeffers, 342 US 48, 96 L ed 59, 72 S Ct 93 (1951).
Under the facts presented here, accused makes out even a stronger case than did the defendant in Jones, supra. First, he is charged with the possession which, as Mr. Justice Frankfurter noted, “both convicts and confers standing, [and] eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized.” Jones v United States, supra, at page 263. Secondly, as Campbell himself directly testified, accused had permission to place the seized goods in his locker; he was accused’s accomplice on the date in question and, contrary to the principal opinion, there was here no question of unlawfully secreting the goods in the locker. Hence, following the dictate of the Supreme Court and not enmeshing the accused within the fine web of property law distinctions, there is here “made out a sufficient interest in the premises [the locker] to establish him as a ‘person aggrieved’ by their search.” Jones, supra, at page 265.
Other, later judicial interpretations of the Jones holding likewise support this interpretation: Burge v United States, 333 F2d 210 (CA9th Cir) (1964); Henzel v United States, 296 F2d 650 (CA5th Cir) (1961); Contreras v United States, 291 F2d 63 (CA9th Cir) (1961); Hair v United States, 289 F2d 894 (CA DC Cir) (1961).
Thus, in Henzel, supra, Chief Judge Tuttle declared, at page 651:
“In Jones, the Supreme Court held that a person accused of possessing narcotics in violation of the Federal Narcotics Laws could attack the Government’s allegedly unlawful seizure of the narcotics even though (a) his *353presence in the apartment where the narcotics were seized was merely that of a ‘guest’ or ‘invitee,’ and (b) he did not admit to ‘ownership’ of the narcotics. In so holding, the Court repudiated the rule which had been adopted by many Courts of Appeals that, in order to qualify as ‘a person aggrieved by an unlawful search and seizure,’ the accused must show ownership or possession of the seized property or a substantial pos-sessory interest in the invaded premises.”
And, in Contreras v United States, supra, Judge Barnes succinctly stated, at page 65:
“. . . Where a criminal charge against a defendant is based upon possession, the Jones case establishes that the defendant, is, by that very fact, a ‘person aggrieved by an unlawful search and seizure,’ (Fed. R. Crim. P. 41(e), 18 U.S.C.A.) and may, therefore, raise the constitutional question.”
See also McDonald v United States, 335 US 451, 93 L ed 153, 69 S Ct 191 (1948), at page 456; Note, 62 Harvard Law Review 1229.
Unlike my brothers, therefore, I would find the law officer erred prejudi-cially in denying the accused’s standing to contest the search of Campbell’s locker. In so concluding, I have not overlooked their rationale. I believe it errs fundamentally as to both the facts and the law. First, I cannot read this record as indicating the law officer gave any significance to the search objection other than ruling that the matter was solely governed by the fact the contraband was found in Campbell’s locker. Secondly, unlike them, I believe Mr. Justice Frankfurter, speaking for a unanimous Court, meant precisely what he said and left little room for interpretation.
Turning to my brother Kilday’s concurring in the result opinion, I must confess my inability to reason, as he does, that Jones, supra, does not apply to the situation here presented when the search involves another’s locker— obviously incapable of entry by the accused. True, it is not “premises” upon which the accused can physically be, but, as in any other storage area, it is a place in which his property can be left. And, of course, he may do so legitimately, if he has the actual owner’s permission. That is, as I have outlined, precisely what occurred here, for Campbell testified he placed the marihuana in his locker at Aloyian’s request. Thus, Aloyian, in every possible sense, was “legitimately on premises where a search occurs.” Jones v United States, supra, at page 267. Moreover, I reiterate, the whole basis of the charge against Aloyian is that he possessed the marihuana in Campbell’s locker. This alone confers standing upon him to object. Jones v United States, supra; Henzel v United States, supra; Contreras v United States, supra. And, in distinguishing the situation presented here, I find my brothers make no mention of this independent basis for accused’s standing to object.
Finally, to thrust these matters aside and, in essence, to find the search in any event legal is no more than the idlest speculation in light of the undeveloped record. Cf. Henzel v United States, supra, and Contreras v United States, supra. As defendant was not allowed to enter into any real contest on the question, we cannot superimpose our own views on the incomplete evidence here presented. Thus, the case demands reversal and return for a rehearing at which the matter can be fully and properly explored. Jones v United States, supra; United States v Davenport, 14 USCMA 152, 33 CMR 364. I would so order.
Ill
The third issue inquires into the propriety of the law officer’s instructions regarding possession of marihuana. The deficiencies which I discern are twofold in nature. Again, the facts must be set forth to place the question in proper perspective.
As will be recalled, the bulk of the evidence regarding possession of marihuana, as attributed to the accused, rested upon that which was discovered in Campbell’s locker. At the conclusion of the case, the law officer very prop*354erly instructed the court of the need to find beyond a reasonable doubt the accused wrongfully had marihuana in his possession. The president then interjected a question:
“PRES: Did he have it in his possession then?”
The law officer replied that he would give an instruction on the matter later. He advised the court that “the possession by the accused must be knowing, conscious, and exclusive.” He then added:
“Further, the definition of possession does not mean that he has to physically have it in his hand. If he knows where it is, has a certain amount of control over it, in my opinion that is sufficient possession. The facts in this case, in my opinion, are sufficient to show possession, if you so determine in your deliberations. I am presenting that to you as a fact which you must find. You don’t have to find it, but there is sufficient evidence in the record to find it, if you so find.”
On objection by the defense, who pointed to the need for conscious, knowing, and exclusive possession, the law officer replied:
“LO: All right, I’ll give you such —In my opinion this means that he doesn’t physically have to have it in his hand. If he knows where it is, and it is his, it doesn’t physically have to be right in his own hand. It could be anywhere that he places it. And, in. my opinion, that is what possession means. Is the court all clear on that? Any questions on that?” [Emphasis supplied.]
In my opinion, the charge is clearly erroneous in purporting to set forth a correct statement of the law of possession and, in addition, amounts to an unfair comment in the evidence.
First, in United States v Lampkins, 4 USCMA 31, 15 CMR 31, we pointed out that accused’s possession of marihuana must be knowing. In so doing, we adopted the rationale of California precedents and the definition of' such possession as “an ‘immediate and. exclusive possession and one under the-dominion and control of defendant.’ ” People v Gory, 28 Cal 2d 450, 170 P2d 433 (1946), at page 436. See also People v Herbert, 59 Cal App 158, 210 Pac 276 (1922), and People v Sinclair, 129 Cal App 320, 19 P2d 23 (1933). Indeed, in United States v Blair, 10 USCMA 161, 27 CMR 235, we pointed out, at page 163:
“. . . Possession, of course, is not synonymous with title or ownership. Possession may be changed and at the same time title may be retained.”
Compare United States v Maginley, 13 USCMA 445, 32 CMR 445, and Albrecht v United States, 273 US 1, 71 L ed 505, 47 S Ct 250 (1927).
The law officer, however, confused the concepts of possession and ownership and left the jury to infer the former from the latter. Of course, he was correct in stating that possession did not depend upon the accused physically having it in his hand, but he positively declared it did exist if he had “a certain amount of control over it” and later qualified that remark by making possession the equivalent of knowledge of its whereabouts plus title. Thus he opined to the court that it existed, “If he knows where it is, and it is his.” (Emphasis supplied.) Applied to the evidence that Aloyian’s accomplice had the drug in his locker but alleged ownership in Aloyian, the failure to delineate a proper definition •of possession led directly to accused’s conviction.
In United States v Landry, 257 F2d 425 (CA7th Cir) (1958), narcotics were seized from the person of defendant’s companion and from her bedroom. Accused was charged with their possession on the basis of an admission of ownership. In reversing, the Court of Appeals declared, at page 431:
“There can be no doubt that actual possession was in Dolores, not Landry. The government appears to so recognize because it states in its brief that a finding of possession in Landry could not be sustained absent his admission of ownership. The government informs us that no case has been found in which the precise *355question has been decided. We suspect the reason for this is that this is the first time the government has advanced the novel idea that ownership of narcotics is proof of their possession. Ownership and possession of a thing, of course, may merge in the same person but, on the other hand, ownership may be in one person and possession in another. Assuming, as we think proper, that Congress employed the word ‘possession’ in its ordinary and usual connotation, it certainly means something different from ‘ownership.’ Ownership is not proof of possession any more than possession is proof of ownership. If Congress had intended that a presumption arise against the owner as well as the possessor of a narcotic, it would have so declared. The same can be said of constructive possession or the un-exercised right of possession.
“It would not be helpful to quote the numerous definitions of the words ‘possess’ and ‘possession’ which have been called to our attention. As good a definition as we have seen is that of this Court in a criminal case, United States v Wainer, 7 Cir, 170 F2d 603, 606. The Court stated:
‘To “possess” means to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature.’
As already noted, the undisputed evidence shows that Dolores, not Landry, had actual control, care and management of the narcotic at the time it was found. The suggestion that he might previously have had possession of it barely approaches the dignity of a guess.”
And, in Hernandez v United States, 300 F2d 114 (CA9th Cir) (1962), the court noted the need, in drug cases, to inform the jury with care of the concepts involved in this area. Thus, it stated, at page 119:
“. . . The term [possession] must be defined with precision and restraint for in effect we are defining the basis upon which punishment will be imposed. It is well to be reminded, too, that 'the term ‘possession’ is a highly ambiguous one in the law, and hence ‘so fraught with danger that the courts must scrutinize its use with all diligence * * * > »
See also Brothers v United States, 328 F2d 151 (CA9th Cir) (1964).
The true test of possession under the charge here involved is either conscious, physical custody of the drug or, if custody be in another or elsewhere, dominion and control over it, either directly or through the agent who holds it. Brothers v United States, supra; United States v Rosario, 327 F2d 561 (CA2d Cir) (1964); Mack v United States, 326 F2d 481 (CA8th Cir) (1964). The authorities quoted and cited, supra, establish the error of testing it by ownership or by leaving the issue wide open to the jury through using such terms as exercising “a certain amount of control.” In short, what the law officer did was to allow the jury to convict on the basis of custody in Campbell and ownership in Aloyian. Yet, as we have seen, supra, the law requires more if the custody be elsewhere. In light of the evidence and the court’s specific interest in the state of the proof, I believe the instruction was prejudicially erroneous.
Finally, I point out that the advice is likewise prejudicial as a most unfair comment on the evidence. In effect, when questioned by the president, the law officer informed the court that the proof was such that a verdict of guilty, if reached by them on the possession counts, would be sustained. True, he noted their' duty to find the facts, but he informed them that they were sufficient in law, if so found. In my opinion, this was a clear invitation to convict.
We have pointed out the authority of a military judge, like his Federal civilian counterpart, to comment on the evidence. United States v Andis, 2 USCMA 364, 8 CMR 164. But we also declared, in the same opinion, that comments must be fairly made:
“. . . To protect the accused in criminal trials, it is provided that *356the judge in his comments must not distort or add to the evidence; that he must not draw unwarranted inferences and must not emphasize, in summing up the evidence, portions in favor of one party and minimize those in favor of the other. He can make no appeal to the passions and prejudices of the jury, nor be argumentative in favor of or against one of the parties. He is permitted to express an opinion even on the guilt of the defendant, so long as he advises the jury clearly and unequivocally that his opinion is not binding. For cases embodying these limitations, see United States v Murdock, 290 US 389, 78 L ed 381, 54 S Ct 223; Hickory v United States, supra; Quercia v United States, supra; Hicks v United States, 150 US 442, 37 L ed 1137, 14 S Ct 144; Allison v United States, 160 US 203, 40 L ed 395, 16 S Ct 252; Horning v District of Columbia, supra; Herron v Southern P. Co. 283 US 91, 75 L ed 857, 51 S Ct 383; Robinson v United States, 290 Fed 755 (CA2d Cir) (1923), cert den, 263 US 700, 68 L ed 513, 44 S Ct 6; Boyett v United States, 48 F2d 482 (CA5th Cir) (1931); United States v Notto, 61 F2d 781 (CA2d Cir) (1932).”
I can think of no unfairer nor more unjust advice than to tell the fact finders, in effect, the case will be upheld, if they desire to convict, particularly in a case like this where, due to the generality of the pleadings, the prosecution has been permitted to range widely over time and space and demonstrate so many instances of alleged misconduct. Compare Hardy v United States, 335 F2d 288 (CA DC Cir) (1964), and United States v Woods, 252 F2d 334 (CA2d Cir) (1958). To introduce such a notion is to tell the jury the prosecution’s case is strong enough and to “be argumentative in favor of or against one of the parties.” Andis, supra, at page 367. Thus, the defense contentions regarding Campbell’s lack of credibility and that of the other witnesses were set at naught and the court’s verdict effectually pointed out for it in advance. For this reason, too, I would set aside the findings of guilty.
IV
In sum, then, I would reverse here on the basis of the failure to make the pleadings more definite and certain; the refusal to entertain the accused’s objection to the search and seizure; and the instructions of the law officer. Added together, these clearly denied Aloyian a fair hearing. At the outset, he was met with a veritable cannonade of charges, stretching over a period of months in time. When the prosecution relied principally on evidence of possession of marihuana by Campbell to convict him, he was told he could not complain. And when even the court was puzzled at convicting him on proof that Campbell was violating the law, they were quite erroneously informed that ownership equated possession and that, in any event, the facts to support guilt were there. Stripped of all verbiage, that is the situation presented. I believe it demands another trial.
I would reverse the board of review and order a rehearing.
The specifications were amended later in the trial to allege a period from March 24, 1964, to December 2, 1964.