(dissenting) :
In my opinion, the challenged instruction presents no fair risk of prejudice to the accused and, therefore, does not justify reversal of an otherwise unimpeachable conviction. See my dissent in United States v Mathis, 15 USCMA 130, 134, 35 CMR 102; United States v Hacker, 15 USCMA 419, 35 CMR 391.
The erroneous instruction is as follows: “If the accused would not have committed the act had the circumstances been such that immediate detection and apprehension were certain, he cannot be said to have acted under an irresistable [sic] impulse.” Since the accused committed the offense in the brig against the turnkey of the brig, “detection and apprehension” were absolutely certain. Consequently, the instruction was, if anything, beneficial to the accused. I would affirm the decision of the board of review.