Opinion of the Court
The accused now stands before this Court convicted of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and assault with intent to commit rape, in violation of Code, supra, Article 134, 10 USC § 934, and sentenced to dishonorable discharge, forfeiture of all pay and' allowances, confinement at hard labor for five years, and reduction.1 We granted his petition for review on the assertion that the law officer erred prejudicially in advising the court:
“If you believe that a witness has willfully sworn falsely to a material fact in the case, you may disregard his testimony in whole or in part, except insofar as it may have been corroborated by other credible evidence.”
This was prejudicial error. United States v Robbins, 16 USCMA 474, 37 CMR 94; United States v Byrd, 16 USCMA 488, 37 CMR 108; United States v Silver, 16 USCMA 611, 37 CMR 231; United States v Gaston, 16 USCMA 626, 37 CMR 246. While it is suggested the evidence of guilt is compelling and that the error’s effect may thereby be overcome, such a rationale fails to give heed to the exclusive right of the fact finders to weigh credibility and to reject testimony for any reason, as well as the necessity that they find guilt is established by the evidence beyond a reasonable doubt. The instruction, howeyer, forbids the court members so to reject testimony which they find to be corroborated, even though they believe it to have been given by one who has perjured himself. Such a restriction on the lawful function of the court cannot stand and, when made a part of the instructions of the law officer, we will not pause to speculate whether there was testimony which the jury might have, but for the erroneous advice, rejected. United States v Robbins, supra. In short, all issues of guilt or innocence are factual and must be established to the satisfaction of the court-martial. A substantial restriction on its right to ex
The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
1.
This case has been before us previously, and we at that time set aside other charges and ordered them dismissed. See United States v Schoenberg, 16 USCMA 425, 37 CMR 45. The error now before us was not then assigned or considered. The matter arose on accused’s petition from the decision of the board of review on further review, following our decision in United States v Robbins, 16 USCMA 474, 37 CMR 94.