Opinion of the Court
Quinn, Chief Judge:
A general court-martial in Germany convicted the accused, on his plea of guilty, of assault upon a sixty-eight-year-old woman with intent to gratify his sexual desire, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. It sentenced him to a bad-conduct discharge, confinement at hard labor for one year, and accessory penalties.
, Before a board of review, the accused contended he was prejudiced as to the sentence by the law officer’s improper limitation of the defense voir dire of the court members and by a remark as to the sentence. The board of review rejected both assignments of error as lacking in merit and affirmed the findings of guilty and the sentence. The same contentions are advanced in this Court.
On the voir dire, defense counsel asked whether any court member believed that conviction would require a punitive discharge. The law officer asked counsel to clarify the question. The rephrased question and the colloquy which resulted are as follows:
“DC: In spite of any mitigation, or extenuating circumstances. Just the sole fact of conviction on this charge. Regardless of what may be presented in the case. Regardless of what may be presented in extenuation. Do you think this would require a punitive discharge?
“PRES: I think it might. I don’t know that it would require it absolutely, but you made an assumption that he is guilty. This is an assumption that we don’t know yet.
“LO: I don’t think we ought to carry this — I think the question is improper because of the way it is worded.
“DC: Sir, can I rephrase the question?
“LO: All right, rephrase the question. You make it a very difficult question to answer because the nature of the offense in itself calls for a punitive discharge. The nature of the offense itself, if one is found guilty, calls for a punitive discharge and other accessories. The way you have the question [88]*88worded makes it difficult for anyone to answer it.
“DC: Well, my question is this, sir, I’ll rephrase it, that regardless of what is presented in mitigation or extenuation, regardless of what comes in at this point, that you would require — that you would find that this would require a punitive discharge, regardless of what might be brought in later as to the circumstances surrounding the — or any extenuation or mitigation.
“PRES: Well, I think it might.
“LO: Does any member of the court wish to comment?
“MEMBER: I think it might.
“LO: I think the question is highly improper and I don’t think we’ll go into this discussion. If you wish to question the members individually, you may do so. I think that collectively it is difficult to answer this question any way.
“DC: I was directing my question to each member individually, of what their feelings were. Instead of asking each member individually, I directed it to the court as a whole, but trying to ascertain each individual’s feelings, or if they did have feelings. At this time the defense does not have any challenge for cause, but we would respectfully like to challenge peremptorily, Colonel Jones.”
Military due process assures the accused the right to court members who are impartial, and who will determine his sentence upon the basis of the matters presented in the courtroom. Fixed preconceptions or “inelastic attitude[s]” on the part of a court member as to the type of punishment that should be imposed for particular offenses, or upon a particular accused, subject him to challenge for cause. United States v Cleveland, 15 USCMA 213, 217, 35 CMR 185. The voir dire of a court member may properly extend into his predispositions or prejudices, if any, as to the sentence. While the law officer should not be picayune about niceties of form or expression by defense counsel, he is responsible for the manner in which the voir dire is conducted, and his rulings, therefore, should be reviewed with “circumspection.” United States v Freeman, 15 USCMA 126, 128, 35 CMR 98. As we interpret the rulings here, the law officer may have misunderstood the meaning of defense counsel’s question, but he did not prohibit further inquiry. The initial ruling that defense counsel rephrase the question resulted eventually in a question ¡that actually elicited a response from the president and another court member. The final ruling merely was that defense counsel could “question the members individually” on the matter. That ruling was appropriate.
The answer of the president and the other court member, that conviction “might” require a punitive discharge, indicated that the strength of their feeling or belief could be tested only by questioning each separately. The law officer could reasonably conclude that the basis for disqualification was so individual a matter that it could be better explored by separate questioning of each member. The record of trial, therefore, demonstrates that the law officer did not prevent further inquiry into the subject matter; he merely required defense counsel to pursue the examination in another form.
There is a suggestion that the law officer’s comments on the impropriety of the question made it futile for defense counsel to continue the inquiry in any form. See United States v Smith, 6 USCMA 521, 20 CMR 237; United States v Sutton, 15 USCMA 531, 36 CMR 29; United States v Staskus, 20 CMR 556. We see no risk that acceptance of the opportunity offered by the law officer would merely tend to alienate the court members against the accused. There is nothing in this record, as there was in the Smith case, to indicate that all the court members were committed to a predetermined point of view. Also, the present case is opposite to Sutton. There, a voir dire of specific court members was not [89]*89only criticized by the law officer as improper, but his ruling prescribed erroneous guidelines for continuation of the inquiry. Here, the general examination was directed to be made specific, and no erroneous limits were prescribed to confine the examination. The law officer’s ruling in this case left open to the defense a genuinely useful course for further inquiry into the sentence predilections, if any, of the individual court members. The defense failure to avail itself of the opportunity provides no tenable ground for reversal of the accused’s conviction. United States v Talbott, 12 USCMA 446, 31 CMR 32.
In the second assignment of error, the accused contends the law officer’s comment that the “offense in itself calls for a punitive discharge” was prejudicial. In the post-trial review, the staff judge advocate interpreted the comment as referring only to the “authorized punishment for the offense,” but he conceded it could be construed as “an opinion concerning the punishment that should be imposed in the event of conviction.” Appellate defense counsel maintain that the latter is the “only reasonable interpretation.” Whichever interpretation is arrived at is immaterial. As long as the comment can reasonably be construed as expressing the law officer’s opinion, its probable impact upon the court members should be measured. However, the evaluation requires consideration of all relevant circumstances.
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Opinion of the Court
Quinn, Chief Judge:
A general court-martial in Germany convicted the accused, on his plea of guilty, of assault upon a sixty-eight-year-old woman with intent to gratify his sexual desire, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. It sentenced him to a bad-conduct discharge, confinement at hard labor for one year, and accessory penalties.
, Before a board of review, the accused contended he was prejudiced as to the sentence by the law officer’s improper limitation of the defense voir dire of the court members and by a remark as to the sentence. The board of review rejected both assignments of error as lacking in merit and affirmed the findings of guilty and the sentence. The same contentions are advanced in this Court.
On the voir dire, defense counsel asked whether any court member believed that conviction would require a punitive discharge. The law officer asked counsel to clarify the question. The rephrased question and the colloquy which resulted are as follows:
“DC: In spite of any mitigation, or extenuating circumstances. Just the sole fact of conviction on this charge. Regardless of what may be presented in the case. Regardless of what may be presented in extenuation. Do you think this would require a punitive discharge?
“PRES: I think it might. I don’t know that it would require it absolutely, but you made an assumption that he is guilty. This is an assumption that we don’t know yet.
“LO: I don’t think we ought to carry this — I think the question is improper because of the way it is worded.
“DC: Sir, can I rephrase the question?
“LO: All right, rephrase the question. You make it a very difficult question to answer because the nature of the offense in itself calls for a punitive discharge. The nature of the offense itself, if one is found guilty, calls for a punitive discharge and other accessories. The way you have the question [88]*88worded makes it difficult for anyone to answer it.
“DC: Well, my question is this, sir, I’ll rephrase it, that regardless of what is presented in mitigation or extenuation, regardless of what comes in at this point, that you would require — that you would find that this would require a punitive discharge, regardless of what might be brought in later as to the circumstances surrounding the — or any extenuation or mitigation.
“PRES: Well, I think it might.
“LO: Does any member of the court wish to comment?
“MEMBER: I think it might.
“LO: I think the question is highly improper and I don’t think we’ll go into this discussion. If you wish to question the members individually, you may do so. I think that collectively it is difficult to answer this question any way.
“DC: I was directing my question to each member individually, of what their feelings were. Instead of asking each member individually, I directed it to the court as a whole, but trying to ascertain each individual’s feelings, or if they did have feelings. At this time the defense does not have any challenge for cause, but we would respectfully like to challenge peremptorily, Colonel Jones.”
Military due process assures the accused the right to court members who are impartial, and who will determine his sentence upon the basis of the matters presented in the courtroom. Fixed preconceptions or “inelastic attitude[s]” on the part of a court member as to the type of punishment that should be imposed for particular offenses, or upon a particular accused, subject him to challenge for cause. United States v Cleveland, 15 USCMA 213, 217, 35 CMR 185. The voir dire of a court member may properly extend into his predispositions or prejudices, if any, as to the sentence. While the law officer should not be picayune about niceties of form or expression by defense counsel, he is responsible for the manner in which the voir dire is conducted, and his rulings, therefore, should be reviewed with “circumspection.” United States v Freeman, 15 USCMA 126, 128, 35 CMR 98. As we interpret the rulings here, the law officer may have misunderstood the meaning of defense counsel’s question, but he did not prohibit further inquiry. The initial ruling that defense counsel rephrase the question resulted eventually in a question ¡that actually elicited a response from the president and another court member. The final ruling merely was that defense counsel could “question the members individually” on the matter. That ruling was appropriate.
The answer of the president and the other court member, that conviction “might” require a punitive discharge, indicated that the strength of their feeling or belief could be tested only by questioning each separately. The law officer could reasonably conclude that the basis for disqualification was so individual a matter that it could be better explored by separate questioning of each member. The record of trial, therefore, demonstrates that the law officer did not prevent further inquiry into the subject matter; he merely required defense counsel to pursue the examination in another form.
There is a suggestion that the law officer’s comments on the impropriety of the question made it futile for defense counsel to continue the inquiry in any form. See United States v Smith, 6 USCMA 521, 20 CMR 237; United States v Sutton, 15 USCMA 531, 36 CMR 29; United States v Staskus, 20 CMR 556. We see no risk that acceptance of the opportunity offered by the law officer would merely tend to alienate the court members against the accused. There is nothing in this record, as there was in the Smith case, to indicate that all the court members were committed to a predetermined point of view. Also, the present case is opposite to Sutton. There, a voir dire of specific court members was not [89]*89only criticized by the law officer as improper, but his ruling prescribed erroneous guidelines for continuation of the inquiry. Here, the general examination was directed to be made specific, and no erroneous limits were prescribed to confine the examination. The law officer’s ruling in this case left open to the defense a genuinely useful course for further inquiry into the sentence predilections, if any, of the individual court members. The defense failure to avail itself of the opportunity provides no tenable ground for reversal of the accused’s conviction. United States v Talbott, 12 USCMA 446, 31 CMR 32.
In the second assignment of error, the accused contends the law officer’s comment that the “offense in itself calls for a punitive discharge” was prejudicial. In the post-trial review, the staff judge advocate interpreted the comment as referring only to the “authorized punishment for the offense,” but he conceded it could be construed as “an opinion concerning the punishment that should be imposed in the event of conviction.” Appellate defense counsel maintain that the latter is the “only reasonable interpretation.” Whichever interpretation is arrived at is immaterial. As long as the comment can reasonably be construed as expressing the law officer’s opinion, its probable impact upon the court members should be measured. However, the evaluation requires consideration of all relevant circumstances.
During the sentence proceedings, and before the court retired to deliberate on the sentence, the law officer instructed the court members that they alone had the responsibility to adjudge an appropriate sentence; and that they were “not restricted” as to the type of punishment, nor as to any combination of penalties. They were further instructed that the punishment should be “appropriate to the individual accused and to the particular case.” Various mitigating factors, such as the accused’s age, family and personal problems, and the fact that he entered a plea of guilty, were called to the court’s attention. In, addition, the law officer expressly instructed the court members that they “must not” interpret his instructions as an opinion as to the kind or amount of punishment which should be imposed, because they “alone have the independent responsibility of making this determination.” Few instructions could more forcefully or more completely point out that the law officer’s opinion should not be considered during the sentence deliberations. The record of trial leaves no doubt that, whatever its interpretation, the law officer’s remark did not influence the court members in their determination of the sentence. United States v Andis, 2 USCMA 364, 8 CMR 164; United States v Wimberley, 16 USCMA 3, 36 CMR 159.
Going beyond the assignments of error, we have also assessed the implications of the answer by the president and another court member that the nature of the offense “might” lead them to adjudge a punitive discharge. Aside from the defense failure to pursue the inquiry or to challenge either member for cause (see United States v Dyche, 8 USCMA 430, 24 CMR 240; United States v Talbott, supra), we are satisfied that the answer is not indicative of an unalterable opinion. Cf. United States v Lynch, 9 USCMA 523, 26 CMR 303.
In its worst light, the answer reflects a tentative impression that a punitive discharge is appropriate punishment for assault upon an elderly female, with an intent to gratify sexual desire. One more knowledgeable of the disqualifying effect of personal opinion might respond somewhat more cautiously, but the tenor of the answer would probably be the same as that given. Some offenses are so heinous or so repugnant to common deceny that the first thought of a court member might well be that the accused should, if convicted, be sentenced to a punitive discharge. A provisional impression of this kind is practically unavoidable. The law recognizes that [90]*90a juror may enter the jury box with an unfavorable inclination toward certain offenses. See United States v Deain, 5 USCMA 44, 17 CMR 44. Such a juror, however, is not automatically disqualified. The question is whether, despite appropriate instructions to disregard the inclination, it is so strong that the juror will be influenced by it in his deliberations. In our opinion, the qualified nature of the answer by the president and the other court member demonstrates that they were prepared to surrender their impression and to adjudge a sentence entirely upon the basis of the evidence and the law propounded by the law officer. Cf. United States v Lynch, supra. From the record of trial, it is clear that the accused was fairly tried, convicted, and sentenced, and that no error was committed which prejudiced him in any substantial right.
The decision of the board of review is affirmed.
Judge KiLDAY concurs.