(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree with the holding of the principal opinion that the failure of the law officer to instruct orally as to the sentence voting procedure was prejudicially erroneous. United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970). At least as to that issue a rehearing on sentence is required.
I disagree with the holding of the majority that the accused was not prejudiced by the omission of an instruction as to the effect of evidence of good character. The instruction was requested in writing by defense counsel and the law officer agreed to give it; however, his failure to do so went unnoticed by counsel.
In the early case of United States v Browning, 1 USCMA 599, 601, 5 CMR 27 (1952), the late Judge Brosman, speaking for a unanimous Court, wrote:
“It is often said, with considerable merit, that character evidence —more particularly general character evidence — is of doubtful practical value to a defendant charged with crime. Nevertheless it may become the factor which tips the scales in his favor. Therefore, courts have repeatedly held to be reversible error a refusal to charge the jury that evidence of good character alone may be sufficient to warrant acquittal, even though evidence of guilt may be convincing. Edgington v United States, 164 US 361, 41 L Ed 467, 11 S Ct 72; Egan v United States, 287 F 958 (CA DC Cir); Jones v United States, 289 F 536 (CA DC Cir).” [Emphasis supplied.]
And in United States v Cooper, 15 USCMA 322, 326, 35 CMR 294 (1965), where, as here, the law officer inad*16vertently failed to give an agreed-upon instruction on the effect of good character evidence, this Court held:
“Accused having presented evidence of his good character and the intended instruction not having been delivered to the court prior to its return of findings of guilty, it is apparent that prejudicial error was committed, particularly in light of the substantial issue which existed regarding accused’s mental responsibility for the alleged acts." [Emphasis supplied.]
My brothers take the position that since the accused admitted the commission of the act, character evidence is of no effect, citing United States v Dodge, 3 USCMA 158, 11 CMR 158 (1953), and United States v Schultz, 18 USCMA 133, 39 CMR 133 (1969). These cases are distinguishable, however. In Dodge, a conviction for larceny, the accused testified that he took drugs and narcotics from the kit of an Army doctor out of curiosity and a desire to see what they were. He also testified that he did not intend to return them. And in Schultz, a conviction for premeditated murder of a Vietnamese civilian, the accused, in open court, admitted the slaying and gave as his reason “ T had to kill a VC.’ T couldn’t sleep at night, I had to help these guys that were dead, I had to do something for them, knowing that their lives weren’t wasted.’ ” United States v Schultz, supra, at page 139.
The situation before us is more in accord with United States v Mathis, 15 USCMA 130, 35 CMR 102 (1964), and 17 USCMA 205, 38 CMR 3 (1967). Mathis was convicted of premeditated murder. The homicide was admitted by the accused both in a pretrial statement and in open court. According to the testimony of Mathis, he and the victim engaged in a consensual, oral homosexual act. When the victim, thereafter, attempted to penetrate the accused anally, the latter fought with the victim and ultimately killed him. The central issue in the trial was the sanity of the accused. The law officer rejected a defense request for an instruction on the effect of evidence of good character on the ground that the accused had admitted committing the act and the only question was his mental responsibility. We said in Mathis, 17 USCMA, at page 208:
“The error in the law officer’s rationale, clearly revealed by this colloquy, is that not every homicide amounts to a crime and it is only the former which is admitted by the defense. That a crime of any degree was committed is a conclusion they totally reject.
“The instructional omission, then, is not only error but is necessarily prejudicial for good character alone is sufficient to provide a reasonable doubt as to guilt (United States v Sweeney, 14 USCMA 599, 34 CMR 379 [1964], and cases cited therein), and, under the circumstances of this case, should have been given. United States v Cooper, 15 USCMA 322, 35 CMR 294 [1965]; United States v Harrell, 9 USCMA 279, 26 CMR 59 [1958]; United States v Sitren, 16 USCMA 321, 36 CMR 477 [1966]; United States v Flippen, 16 USCMA 622, 37 CMR 242 [1967].”
In the case at bar, the accused’s mental responsibility was lengthily contested. However, unlike Dodge, Schultz, or even Mathis, there was no judicial admission of guilt as the accused did not testify. The question of whether the alleged offense was committed1 was one of fact for the court members to decide based on the evidence, which included the testimony of the victim and the pretrial statement of the accused, the admissibility of which was contested at trial.
In his statement, the accused related a different version of the events than *17did the victim and contended that the exposure was inadvertent and that he had no intent whatever to gratify his sexual desires. The evidence of good character of the accused related directly to his work with women and children at the Youth Activities Center on post, where the charged offense allegedly occurred. Obviously relying on the law officer’s agreement that he would give the requested instruction, defense counsel made extensive use of his character evidence on findings.
As I have noted above, my brothers take the position that the accused admitted the commission of the charged offense and, hence, they hold that no prejudice resulted from the law officer’s failure to instruct on the effect of evidence of good character. As support for their position, that the commission of the offense was admitted, they quote at length excerpts from the closing argument of defense counsel as well as portions of the testimony of witnesses offered on the issue of the accused’s mental responsibility. Taken out of context as they are, these quotations present a disturbing picture of the accused. They depict a man who committed numerous bizarre and dangerous actions on frequent occasions when he had been drinking. The defense argued that his conduct was the product of a psychomotor epileptic seizure induced by compulsive and chronic alcoholism. Counsel acknowledged his inability to produce substantial evidence of good character “because of the peculiar nature and background and mental condition of my client.” He did, however, introduce evidence of good character of the accused from individuals who had occasion to observe the accused when he had not been drinking. From this he concluded, “So, maybe, we have a Dr. Jekyll, right here (indicating — left hand); but does the other testimony (pause) — show the Mr. Hyde?”
None of the evidence of bizarre behavior, however, even remotely related to a propensity for sexual activities with little girls, while the evidence of good character concerned his work with women and children at the Youth Activities Center on post, where the charged offense allegedly occurred. But in any event, the question for the Court to decide, as posed by trial counsel in his argument to the court, was “whether or not he really had the intention to gratify his sexual desire.” This element was never admitted and it was the defense contention that the accused was unable to form such an intent because of his mental disability.
I am also impelled to disagree with my brothers’ assessment of the status of the evidence by the fact that the testimony relative to other evidence of misconduct was not admitted or presented for the purpose of determining the guilt or innocence of the accused of the charged offense but solely on the issue of the accused’s mental responsibility. The law officer properly instructed the court that it could not consider this evidence on the question of guilt or innocence. United States v Bryant, 12 USCMA 111, 30 CMR 111 (1961); United States v Baskin, 17 USCMA 315, 38 CMR 113 (1967), and cases cited at page 318. Its consideration at this level must also be so limited and may not be used to sustain a finding by this Court that the commission of the charged offense was admitted. In my opinion, reliance by the majority on United States v Dodge and United States v Schultz, both supra, where the offense was judicially admitted, is misplaced.
Character evidence in a sex-related ease “is often the best, if not the only, defense which the accused can produce.” United States v Phillips, 3 USCMA 137, 142, 11 CMR 137 (1953). Cf. United States v Blackwell, 12 USCMA 20, 30 CMR 20 (1960). And, as noted above, evidence of good character alone may be sufficient to warrant acquittal, even though evidence of guilt may be compelling. United States v Browning, supra.
I would reverse the decision of the United States Army Court of Military Review, on the basis of this Court’s opinions in United States v Cooper and United States v Mathis, both supra, and direct that a rehearing may be ordered.
The accused was charged with taking immoral, improper, and indecent liberties with a female under sixteen years of age (eight), by willfully and wrongfully exposing his penis to her, by asking her to place his penis in his pants, and by permitting her to touch his penis, with intent to gratify his sexual desires.