(dissenting):
I dissent.
The essence of the principal opinion is that, though trial counsel’s argument was an ill-advised and erroneous appeal to the passions of the court, made up of inflammatory and unsupported insinuations, it was wiped from the members’ minds and rendered totally ineffective by the law officer’s admonition to disregard evidence of offenses not charged, particularly “trial counsel’s comment on the accused’s motive for committing these offenses.” In light of the argument, the law officer’s advice was about as effective as King Canute’s command that the tides recede, and I would remand the case for further curative action on the sentence.
From the outset of his peroration, it is obvious the trial counsel intended to depart completely from the facts of the case and rely on appealing to the prejudices of the court in the hopes of securing “a severe maximum punishment.” Though the accused was but a twenty-year-old youth, counsel declared, “He’s not a young man . . . older than the average draftee, which he is,” thereby implying at once that, for some nefarious reason, the accused had delayed entering the service of his country. But there is not the slightest basis in the record for such an inference. To the contrary, Long appears to have been a hardworking young man, who had never before been entangled with the law either in civilian life or in the military. And if, as trial counsel states, a twenty-year-old is “not a young man,” then the laws both of nature and man have indeed changed.
Having argued thusly, and listened to the sober and detailed answer of defense counsel in reply, trial counsel immediately disclosed his true purpose in rebuttal. Thus, he prefaced his remarks with the notation that they were made “because of how I feel about this offense.” Over objection, he was allowed to continue his diatribe unabated. He clearly implied that the accused, having completed his training, was attempting to avoid overseas orders by committing criminal offenses, despite the fact that previous cross-examination had revealed Long had not received any orders at all and that the entire incident arose out of nothing more than the mishandling of an individual in a highly emotional and intoxicated state.
*329Finally, he appealed outright to the prejudices of the court members:
. . But the government does contend that the attitude in this country today is too 'prevalent, that ‘I will tell the military to go to hell when I get there, and spend my time in Leavenworth.’ 1 submit that is what Private Long did on the 1st of September. He wanted, and he felt like he could tell the military to go to hell, and spend the rest of his time in Leavenworth. . . . The purpose of punishment in this case goes further than just to see that Private Long doesn’t go bad again, it goes much further than that.” [Emphasis supplied.]
A prosecutor is entitled to strike hard blows for the Government, but the nature of our system demands they be fair. United States v Doctor, 7 USCMA 126, 21 CMR 252. They must, above all, be based on the evidence or inferences to be drawn therefrom. United States v Hutton, 14 USCMA 366, 34 CMR 146. And, as has been noted above as well as in the principal opinion, trial counsel’s assertions had not the slightest foundation in the record. In lieu of facts, he sought refuge in inflaming the court; in lieu of evidence, he painted the previously blameless accused in the colors of an agitator — a “hippie” opponent to the military who sought to evade the draft and, when called to the colors, determined to sit out the dangers of combat in the relative security of a military prison.
The members of our armed forces, both officers and men, are, with few exceptions, dedicated public servants. The history of our country is almost unique in its freedom from military rebellion and the attachment of its soldiery to constitutional principles of government. Patriotic by inclination and tradition, they have steadfastly turned the other cheek to insult and obloquy heaped upon them by a vocal minority whose ignorant squallings about peace and “love” are so mistakenly trumpeted to the world as an allegedly persuasive force by our press.
That they stoically keep silent and maintain their loyalty to their Nation —in the best tradition of the profession of arms — does not mean these men are inhumanly aloof. Appeals may likewise be made to their passions, and what better ear can be found for the outpourings of this prosecutor than one dedicated to “duty, honor, and country.” Sated by the offerings of the public press; astonished at the televised antics of those who with impunity present the enemy’s flags at the very doors of the Pentagon; and left by tradition and position helpless against such activities while their sons and comrades die in the fetid jungles of Indochina, how grimly they must have viewed this young defendant upon hearing the trial counsel point to him as another who would shout, “Hell no, I won’t go,” and who preferred a safe sojourn in prison to the infinitely more dangerous rain forests of Vietnam! In my opinion, the effect of such an erroneous argument was incalculable and the cure for it is not to be found in a simple instruction by the law officer to disregard any such comments.
“Human nature does not change merely because it is found in the jury box. The human mind is not a slate, from which can be wiped out, at the will and instruction of another, ideas and thoughts written thereon.” People v Deal, 357 Ill 634, 192 NE 649, 652 (1934). And as Mr. Justice Jackson noted in Krulewitch v United States, 336 US 440, 93 L ed 790, 69 S Ct 716 (1949), at page 453: “The naive assumption that prejudicial effects can be overcome by instructions to the jury, ... all practicing lawyers know to be unmitigated fiction.” Indeed, this Court has recognized that instructions are not always sufficient to overcome prejudice. United States v Grant, 10 USCMA 585, 28 CMR 151; United States v Richard, 7 USCMA 46, 21 CMR 172. Here, I am convinced such is the case.
Without minimizing the seriousness of the offenses of which the accused was convicted, my brothers’ observation that it grew out of inability of *330those present to cope with “an emotional private,” at the outset involved in an incident of “minor proportions,” accurately describes the situation. It l'esulted in injury to no one. The accused’s record, both civilian and military, was spotless, and, contrary to the prosecutor’s declarations, he actively sought return to military duty. Nevertheless, the court-martial swiftly adjudged a sentence of dishonorable discharge, forfeiture of all pay and allowances, reduction, and confinement at hard labor for five years. The severity of this punishment makes it apparent the court was, despite the law officer’s instructions, influenced unfairly by the argument. As in United States v Gerlach, 16 USCMA 383, 385, 37 CMR 3, “It cannot, therefore, be said that trial counsel’s argument was so insignificant as to be entirely devoid of persuasiveness.” I would so hold, and record my disagreement with the contrary decision of the majority.
I would reverse the decision of the board of review and return the case for appropriate correction of the sentence.