Opinion of the Court
GeoRGe W. Latimer, Judge:
Accused was convicted by general court-martial of two larcenies, two housebreakings, and an attempted housebreaking, violations of Articles 121, 130, and 80, Uniform Code of Military Justice, 10 USC §§ 921, 930, and 880, respectively. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The findings and sentence having been affirmed by intermediate appellate authorities, accused petitioned this Court, and we granted review on three issues. Each, together with the facts germane to the resolution thereof, will be considered separately.
I
The first issue concerns an alleged instructional error. In his final charge to the court-martial, the law officer included the same instruction with which we were concerned in United States v Simpson, 10 USCMA 543, 28 CMR 109. The law officer, however, also repeatedly and properly charged the court-martial on the rule of reasonable doubt and the presumption of innocence and burden of proof. Taking the instructions by their four corners, there is no fair risk that the court members were misled into utilizing an incorrect yardstick in their deliberations. Accordingly, for the reasons set forth in the above-cited case, we conclude the questioned instruction could have no measurable impact on the findings, and hence accused was not prejudiced. See also United States v Smith, 10 USCMA 549, 28 CMR 115; United States v Blackwell, 10 USCMA 550, 28 CMR 116; United States v Davault, 10 USCMA 551, 28 CMR 117; United States v Tisdall, 10 USCMA 553, 28 CMR 119; and United States v Shomler, 10 USCMA 555, 28 CMR 121.
II
Accused’s next contention concerns his pretrial confession which was allowed in evidence against him over his objection. He argues that the law officer erred in doing so. The pertinent facts are largely undisputed and, in order to resolve this issue, it is necessary that we develop them at some length.
In late November and early December 1958, an attempt was made to break into a certain building at Dobbins Air Force Base, Georgia, and other buildings there located were forcibly entered, coin operated machines looted, and liquor stolen. Damaging evidence connected the accused with at least the most recent of these offenses. He was confined on December 4, 1958, and interviewed by agents of the Office of Special Investigations that day. Thereafter he was asked if he would agree to submit to a lie detector examination in order to support the truthfulness of a statement he made on December 4, 1958. He appeared eager to do so and voluntarily consented. Consequently, arrangements were completed for such a test, and on December 5, 1958, two OSI agents escorted accused to the Atlanta, Georgia, office of the OSI, where the poly[12]*12graph examination was to be given by a man from another base. However, after arrival there, accused declined to take the test, indicating he was confused and thought he should confer with an attorney before doing so. The proceedings were thereupon terminated, and accused was driven by the two agents back to Dobbins Air Force Base, where he was returned to confinement. During the drive, there was a general discussion about accused’s desire for counsel, and he mentioned the names of two Air Force attorneys stationed elsewhere. In that respect, he was apprised that the proper procedure was to contact the office of the staff judge advocate. At the confinement facility, accused told a guard on several occasions he wanted to talk to the staff judge advocate, and was informed he should submit a form requesting an interview.
On the night of December 8, 1958, accused filled out such a form, which he submitted the next morning. The guard thereupon telephoned the office ■of the staff judge advocate about the request, and immediately after the telephone conversation informed accused it would be impossible to set up an interview until possibly that afternoon or the next morning because the staff judge advocate was out of his office at a meeting. That afternoon, December 9, 1958, before such a meeting could be arranged, the two OSI agents went to the stockade and again interviewed accused. After proper warning he voluntarily executed a written confession, admitting that he committed the offenses for which he stands convicted. It was the admission of this statement to which the defense objected at trial, arguing that accused had been denied the right to counsel.
In United States v Gunnels, 8 USCMA 130, 23 CMR 354, this Court held that while a suspect, prior to the time a charge is lodged against him, has no right to the appointment of military counsel, he most assuredly has a right to consult with a lawyer of his own choice or to ■obtain advice from military counsel furnished by the staff judge advocate. Accordingly, it was there held that ae-cused was denied the right to counsel when a subordinate of the staff judge advocate, at the latter’s direction, mis-advised him respecting the question of his entitlement to counsel. Likewise, in United States v Rose, 8 USCMA 441, 24 CMR 251, this Court held that accused’s pretrial statement was inadmissible in evidence when, during his interrogation by Government agents, his request for an opportunity to contact his attorney was denied and he was erroneously informed he could not have counsel. See also United States v Wheaton, 9 USCMA 257, 26 CMR 37. Appellate defense counsel argue that the facts of the case at bar fall within the above-mentioned cases, urging that accused requested counsel and that the failure to furnish him advice operated affirmatively to deprive him of counsel.
Those decisions fix the law, but we find them inapposite in the present instance. The record contains no indication whatever that anyone, at any time, ever advised accused he had no right to counsel, nor was there any misadvice. To the contrary, when accused indicated he thought he should consult with counsel before continuing with the polygraph examination, that proceeding was immediately broken off, and accused was correctly apprised of the proper method for contacting the lawyers he mentioned. Moreover, when accused finally submitted his request to see the staff judge advocate in the proper form, action was taken to obtain an interview for him, and although accused had confessed before that officer learned of his request, the record shows he would have seen that accused obtained legal counsel or properly advised him of his right to a civilian attorney at his own expense. The record also discloses that during the interview on December 9, accused made no request for counsel, and that had the OSI agents been aware of any such desire on the part of accused, the interview would have been terminated immediately and accused would have been permitted to obtain legal advice. One of the agents who had accompanied the accused to Atlanta, Georgia, testified that accused never requested counsel of him but had, on [13]*13December 5, merely made “a comment to the effect that he would not take the lie detector examination until he had time to contact counsel which was located in Miami and he was advised that the proper procedure would be to see the Staff Judge Advocate.” That, however, had been four days earlier, the agent did not interrogate accused in the interim period, and the latter said nothing whatever about counsel on December 9, 1958. Neither did he inform the interviewing agents that he had requested an appointment to consult the staff judge advocate. Nor is there any intimation that the agents were otherwise alerted.
Thus, it is clear that accused’s reliance on Gunnels, Rose, and
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Opinion of the Court
GeoRGe W. Latimer, Judge:
Accused was convicted by general court-martial of two larcenies, two housebreakings, and an attempted housebreaking, violations of Articles 121, 130, and 80, Uniform Code of Military Justice, 10 USC §§ 921, 930, and 880, respectively. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The findings and sentence having been affirmed by intermediate appellate authorities, accused petitioned this Court, and we granted review on three issues. Each, together with the facts germane to the resolution thereof, will be considered separately.
I
The first issue concerns an alleged instructional error. In his final charge to the court-martial, the law officer included the same instruction with which we were concerned in United States v Simpson, 10 USCMA 543, 28 CMR 109. The law officer, however, also repeatedly and properly charged the court-martial on the rule of reasonable doubt and the presumption of innocence and burden of proof. Taking the instructions by their four corners, there is no fair risk that the court members were misled into utilizing an incorrect yardstick in their deliberations. Accordingly, for the reasons set forth in the above-cited case, we conclude the questioned instruction could have no measurable impact on the findings, and hence accused was not prejudiced. See also United States v Smith, 10 USCMA 549, 28 CMR 115; United States v Blackwell, 10 USCMA 550, 28 CMR 116; United States v Davault, 10 USCMA 551, 28 CMR 117; United States v Tisdall, 10 USCMA 553, 28 CMR 119; and United States v Shomler, 10 USCMA 555, 28 CMR 121.
II
Accused’s next contention concerns his pretrial confession which was allowed in evidence against him over his objection. He argues that the law officer erred in doing so. The pertinent facts are largely undisputed and, in order to resolve this issue, it is necessary that we develop them at some length.
In late November and early December 1958, an attempt was made to break into a certain building at Dobbins Air Force Base, Georgia, and other buildings there located were forcibly entered, coin operated machines looted, and liquor stolen. Damaging evidence connected the accused with at least the most recent of these offenses. He was confined on December 4, 1958, and interviewed by agents of the Office of Special Investigations that day. Thereafter he was asked if he would agree to submit to a lie detector examination in order to support the truthfulness of a statement he made on December 4, 1958. He appeared eager to do so and voluntarily consented. Consequently, arrangements were completed for such a test, and on December 5, 1958, two OSI agents escorted accused to the Atlanta, Georgia, office of the OSI, where the poly[12]*12graph examination was to be given by a man from another base. However, after arrival there, accused declined to take the test, indicating he was confused and thought he should confer with an attorney before doing so. The proceedings were thereupon terminated, and accused was driven by the two agents back to Dobbins Air Force Base, where he was returned to confinement. During the drive, there was a general discussion about accused’s desire for counsel, and he mentioned the names of two Air Force attorneys stationed elsewhere. In that respect, he was apprised that the proper procedure was to contact the office of the staff judge advocate. At the confinement facility, accused told a guard on several occasions he wanted to talk to the staff judge advocate, and was informed he should submit a form requesting an interview.
On the night of December 8, 1958, accused filled out such a form, which he submitted the next morning. The guard thereupon telephoned the office ■of the staff judge advocate about the request, and immediately after the telephone conversation informed accused it would be impossible to set up an interview until possibly that afternoon or the next morning because the staff judge advocate was out of his office at a meeting. That afternoon, December 9, 1958, before such a meeting could be arranged, the two OSI agents went to the stockade and again interviewed accused. After proper warning he voluntarily executed a written confession, admitting that he committed the offenses for which he stands convicted. It was the admission of this statement to which the defense objected at trial, arguing that accused had been denied the right to counsel.
In United States v Gunnels, 8 USCMA 130, 23 CMR 354, this Court held that while a suspect, prior to the time a charge is lodged against him, has no right to the appointment of military counsel, he most assuredly has a right to consult with a lawyer of his own choice or to ■obtain advice from military counsel furnished by the staff judge advocate. Accordingly, it was there held that ae-cused was denied the right to counsel when a subordinate of the staff judge advocate, at the latter’s direction, mis-advised him respecting the question of his entitlement to counsel. Likewise, in United States v Rose, 8 USCMA 441, 24 CMR 251, this Court held that accused’s pretrial statement was inadmissible in evidence when, during his interrogation by Government agents, his request for an opportunity to contact his attorney was denied and he was erroneously informed he could not have counsel. See also United States v Wheaton, 9 USCMA 257, 26 CMR 37. Appellate defense counsel argue that the facts of the case at bar fall within the above-mentioned cases, urging that accused requested counsel and that the failure to furnish him advice operated affirmatively to deprive him of counsel.
Those decisions fix the law, but we find them inapposite in the present instance. The record contains no indication whatever that anyone, at any time, ever advised accused he had no right to counsel, nor was there any misadvice. To the contrary, when accused indicated he thought he should consult with counsel before continuing with the polygraph examination, that proceeding was immediately broken off, and accused was correctly apprised of the proper method for contacting the lawyers he mentioned. Moreover, when accused finally submitted his request to see the staff judge advocate in the proper form, action was taken to obtain an interview for him, and although accused had confessed before that officer learned of his request, the record shows he would have seen that accused obtained legal counsel or properly advised him of his right to a civilian attorney at his own expense. The record also discloses that during the interview on December 9, accused made no request for counsel, and that had the OSI agents been aware of any such desire on the part of accused, the interview would have been terminated immediately and accused would have been permitted to obtain legal advice. One of the agents who had accompanied the accused to Atlanta, Georgia, testified that accused never requested counsel of him but had, on [13]*13December 5, merely made “a comment to the effect that he would not take the lie detector examination until he had time to contact counsel which was located in Miami and he was advised that the proper procedure would be to see the Staff Judge Advocate.” That, however, had been four days earlier, the agent did not interrogate accused in the interim period, and the latter said nothing whatever about counsel on December 9, 1958. Neither did he inform the interviewing agents that he had requested an appointment to consult the staff judge advocate. Nor is there any intimation that the agents were otherwise alerted.
Thus, it is clear that accused’s reliance on Gunnels, Rose, and Wheaton, supra, is misplaced. He was never refused permission to obtain legal advice, nor was he misadvised, and action was taken to comply with every proper request he made. The investigators were never aware that he desired counsel before being interrogated on December 9, 1958, and, for all they knew, he could have discussed his predicament with a legal advisor. Accused knew of their purpose, yet he failed to inform them he was in fact waiting for the staff judge advocate to return to his office so as to be available for an interview. In addition, accused was properly advised of his rights in accordance with Article 81, Uniform Code of Military Justice, 10 USC § 831, including his right to remain silent. And last, and perhaps most important, while accused stated he did not know he could demand counsel on December 9, he testified he was quite aware he could request legal assistance, yet he failed even to mention such a desire to the OSI agents who took his statement. Under these circumstances, we conclude the defense raised no issue of denial of the right to counsel. Rather, it would seem that as in United States v Cadman, 10 USCMA 222, 27 CMR 296, accused volunteered his statement because “the jig was up,” or for other reasons of his own. We, therefore, hold that the law officer properly overruled the defense objection to the admission in evidence of accused’s confession.
III
Finally, accused assails an instruction by the law officer that:
“A suspect has a right to consult with a lawyer of his own choice or qualified counsel made available to him by the Staff Judge Advocate if he expresses that desire at the time of an interrogation and the denial of that right would render a statement made at that interrogation following such denial, involuntary.”
Appellate defense counsel contend that charge is improper because it limited the court members’ consideration only to the time of accused’s interrogation. The Government, on the other hand, strongly urges that the instruction was, under the facts of the instant ease, correct and that, in any event, trial defense counsel waived any possible error therein.
As we have noted earlier, however, no issue was raised that accused was denied the right to counsel. Thus, we need look no further than our recent opinion in United States v Cadman, supra, to resolve this last issue. As we there pointed out:
“. . . Since there was no issue requiring the instruction, the alleged error did not harm the accused.”
See also United States v Spivey, 8 USCMA 712, 25 CMR 216. This issue, then, must also be resolved adversely to accused.
Accordingly, the decision of the board of review is affirmed. '
Chief Judge Quinn concurs.