(dissenting):
As the author of the opinion in United States v Robbins, 16 USCMA 474, 37 CMR 94, I can only say I did riot intend it to hold, and I do not believe it holds, that the erroneous instruction on the effect of partially false testimony is reversible error, regardless of the absence of any circumstance indicating prejudice to the accused. Id., at page 476, footnote 2.
On the first appeal, the only question before us was sufficiency of the evidence of guilt aliunde the accused’s confession. As to some offenses we determined the question in the accused’s favor, but as to others we decided the matter against him. Although the punishment for the former was nominal, out of an abundance of caution we returned the case to the board of review for reconsideration of the sentence. Now we are told that an error in instruction on the merits requires reversal of all the findings of guilty. I did not perceive error of that kind on the original review, and I still do not see any on this appeal.
The record of trial did not require the court members to weigh the credibility of any witness. The accused’s guilt was established out of his own mouth by a complete confession that he assaulted the child with the intent to “rape her” and that he stole the property alleged in the larceny charge. True, he objected to the admissibility of the confession, but his objection was predicated solely upon a legal ground, and that point was properly decided against him. On this record, it is impossible for me to conclude the accused was prejudiced by the instruction. I would affirm the decision of the board of review.