Opinion of the Court
Paul W. Brosman, Judge:
The accused, Gibson, was tried by general court-martial under a charge of unpremeditated murder, in violation of Article 118, Uniform Code of Military Justice, 50 USC § 712. The specifica[513]*513tion alleged that he shot and killed one Kim Yaun Sil, a member of the military service of the Republic of Korea. At the commencement of the trial, he pleaded not guilty to the charge and specification, but guilty of the lesser included offense of voluntary manslaughter. Subsequently, however, this plea was withdrawn and one of not guilty was entered. He was found guilty of voluntary manslaughter, and sentenced to receive a dishonorable discharge, to forfeit all pay and allowances,. and to be confined to hard labor for ten years. The convening authority approved the findings and sentence, and a board of review in the office of The Judge Advocate General, United States Army, has affirmed.
The record discloses that during the late afternoon or early evening of February 17, 1952, the victim of the homicide and the accused occupied adjoining bunkers located in the main line of resistance on a certain Korean hill. An argument began concerning a quantity of charcoal brought up the hill by Kim, which — under existing practices — was to have been shared between the accused and himself. The altercation grew warmer, and the accused was struck, pushed, or kicked in such a manner that. he fell down the hillside. The accused thereupon armed himself with an M-l rifle, „and the two men approached one «mother, the deceased walking in a lei-surely manner with his hands in his pockets. When at a distance variously estimated at from “three or four feet” to “seven yards,” the accused pumped four rounds into the Korean’s body. Kim fell and subsequently died.
The accused testified in his own behalf, and stated that the dispute originated in a disagreement over where the charcoal was to be placed; that Kim addressed him in foul and abusive language; that the victim struck the first blow in the physical encounter; that he, Gibson, became so angry that he remembered nothing after the initial thrust of the deceased; and that his recollection did not return until — following the shooting — he found himself in an aid station.
At the conclusion of the evidence, .the law officer properly instructed the court-martial concerning the elements of unpremeditated murder — the crime charged — and in addition he named voluntary manslaughter as a lesser included offense. However, he omitted entirely to inform the court’s members of the elements of the. latter crime. Nevertheless, the court-martial, after deliberation, returned findings of guilty of voluntary manslaughter.
It is clear beyond peradventure'that the evidence adduced at the trial fairly raised the crime found as a reasonable alternative to the unpremeditated murder charged, and thus that the law officer committed error in failing to instruct on the essential elements of the former offense. Does it follow, however, that — as it comes to-us — the record here, reflects material prejudice to a substantial right of the accused? We think not. We do not at all read the opinions of this Court, cited by appellate defense counsel, as requiring reversal in the case at bar. Specifically we do not believe this result to be demanded by our opinions in United States v. Clark, 1 USCMA 201, 2 CMR 107; United States v. Moreash, 1 USCMA 616, 5 CMR 44; and United States v. Fox, 2 USCMA 465, 9 CMR 95 — with which decisions we are in unqualified accord. Rather we are of the view that this case falls within the ambit of our action-in United States v. Baguex, 2 USCMA 306, 8 CMR 106, and United States v. Arnovits, 3 USCMA 538, 13 CMR 94. See also United States v. Hunter, 2 USCMA 37, 6 CMR 37.
II
To the hasty reader there may appear to be inconsistency between our action in Clark, Moreash and Fox, as well as in United States v. Burden, 2 USCMA 547, 10 CMR 45; and United States v. Burgess, 2 USCMA 542, 10 CMR 40, on the one hand, and our opinions in and dispositions of the Hunter, Baguex and Arnovits cases on the other. Needless to say we were fully aware of the rule of the Clark and other similar cases when we launched what may be characterized as the Baguex line. However, briefs and argument in the case at bar suggest that confusion has resulted. If this is [514]*514true, it must be dispelled — and the instant ease will serve admirably as a vehicle for this purpose.
It is necessary in any discussion of the general problem — and at the outset —to understand precisely the situation involved in each of the cases mentioned. In Clark, the accused was charged with voluntary manslaughter, as proscribed by .Article of War 93, 10 USC § 1565. Although furnished no instructions on the elements of lesser offenses, the court-martial there found the accused guilty of negligent homicide, in violation of Article of War • 96, 10 USC § 1568. Thereafter, in Moreash, the accused was charged with involuntary manslaughter, as defined by Article 119, Uniform Code of Military Justice, 50 USC § 713. However, he, too, was convicted of negligent homicide, as denounced by Article 134 of the Code, 50 USC § 728, by a court-martial which acted quite without advice concerning the elements of offenses lesser than that charged. In each of these cases, we held the failure to instruct on the lesser offenses found by the court to constitute prejudicial error, and acted to set aside the convictions returned. The precise dispositions made will be examined in greater detail in a subsequent portion of this- opinion. However, at this juncture it should be noted that in neither Clark nor Moreash did the Court reach the question of whether the prejudice flowing from the error committed might be purged by action'of any reviewing authority.
Recently, in United States v. Fox, supra, we were presented with a situation in which the accused had been charged with unpremeditated murder, in violation of Article 118 of the Code, supra. Here, the court-martial, also without the aid of appropriate lesser offensé instructions, convicted the accused of involuntary manslaughter— that is, of a killing committed in the course of an assault, within the terms of Article 119 (6) (2) of the Code. Upon review in this Court, we observed that-the accused had been convicted of an offense quite different from that charged, and, as in the Clark case, under a theory wholly divergent from that on which the prosecution’s case had been based. From our analysis of the facts, we concluded that the lesser offense of involuntary manslaughter had been fairly raised, and should, therefore, have been the subject of instructional direction. We concluded further, in accordance with Clark, that prejudicial error had been committed. But — ■ be it noted — again we did not advert expressly to any possibility of purging the error of prejudice.
Even more recently we handed down our decision in the case of United States v. Burden, supra. There the accused had been brought to trial on a charge of assault with intent to commit rape, in violation of Article 134 of the Code, supra. In spite of a surfeit of evidence of intoxication in high degree, the law officer furnished the court-martial with no instructions regarding either intoxication or the elements of lesser offenses, particularly those not involving specific intent. However, the trial court, of its own initiative, returned a conviction of indecent assault, also proscribed by Article 134. This Court, of course, deemed the instructional failure to constitute prejudicial error. Dispositively, we directed a rehearing, or, in the alternative, other action not inconsistent with the opinion rendered — observing as we did so that the evidence fairly raised the lesser offenses of indecent assault and simple assault, the latter denounced by Article 128, of the Code, 50 USC § 722. To the same general effect is United States v. Burgess, supra.
Ill
Now — and in at least apparent contrast — we approach, first, the case of United States v. Hunter, supra. The accused there had been charged with and convicted of several offenses, among them four separate assaults, with a dangerous weapon with intent to do bodily harm, in violation of Article of War 93, supra. It was noted on review here that the law officer had omitted to inform the court of the necessity for a finding of specific intent to do bodily harm. This omission we held to be prejudicial error —but we proceeded to affirm convictions of assault with a dangerous weapon, an included - lesser offense not involving [515]*515specific intent to do bodily harm. This action was based on the power conferred upon us by Article 59(6) of the Code,' supra, 50 USC § 646.
Somewhat later, in Baguex, we were faced with the following problem. The accused had been charged with premeditated murder, as defined by Article 118 (1) of the Uniform Code, supra. The law officer supplied no instructions on included lesser offenses. Nevertheless, the court-martial returned a finding of guilt of unpremeditated murder, the •offense defined by Article 118 (2) of the Code. Upon review of the evidence adduced at the trial, we concluded that there were fairly raised the lesser ■crimes of unpremeditated murder — that found by the court-martial — and, as well, voluntary manslaughter, in violation of Article 119(a) of the Code. However, electing against the direction of a rehearing, a united Court undertook to purge the instructional failure of prejudicial effect by affirmance ■of the conviction insofar as it extended to guilt of voluntary manslaughter. Of ■course, our power to do so rested, as in Hunter, on Article 59(6) of the Code.
The next step was that taken in United States v. Arnovits, supra. In that case — and insofar as here pertinent— the accused was charged with having made and uttered six checks, with intent to deceive, not at the time intending to maintain sufficient funds in the drawee bank to meet them, and with failing thereafter, wrongfully and dishonorably, to maintain funds therein to meet the same checks. The specifications were lodged, of course, under Article 134 of the Code, supra. In his instructions to the court-martial, the law officer outlined the elements of the offenses charged, but wholly neglected to instruct as to lesser included ones. However, in its findings, the court-martial, with respect to four of the six specifications, those numbered 1 through 4, found the accused guilty only ■of making and uttering the checks in suit, and with wrongfully and dishonorably failing thereafter to maintain a .sufficient balance to cover them. The court thereby declined to find, as to these four checks, that the accused uttered them with an intent to deceive, not at the time intending to maintain sufficient funds in the drawee bank. As to the specifications numbered 5 and 6, the court found the accused guilty as charged. When the case reached a board of review in the office of The Judge Advocate General, United States Army, that body affirmed the findings returned by the court-martial as to specifications 1 through 4. The board did not affirm the findings as to specifications 5 and 6, as returned by the court-martial, but affirmed as to these only to the extent that the accused had been found guilty under the first four specifications. Consequently, when the case reached this Court, the accused stood convicted, not of the six offenses charged, but of the six lesser offenses just described. In our consideration of the case, we determined that the law officer had erred in failing to instruct concerning the lesser crimes of which the accused emerged from thé trial convicted. However — looking to our earlier action in Baguex — we concluded that this failure had been purged of prejudicial effect by the action of the court-martial and the board of review in convicting the accused of those lesser offenses — which indeed were the only ones raised. It is an application of this ruling which we believe to be called for in the present case — for here too, the court-martial returned a conviction of the only possible lesser offense legally and factually raised, although uninstructed as to its elements. The present case, like Baguex and Arnovits, is wholly different from Clark, Moreash, Fox, Burgess and Burden.
IV
In demonstrating the soundness of this position, it would seem that the principal chore has to do with .the delineation of a distinction between Clark and Moreash, at the one swing of the pendulum, and Hunter and Baguex at the other. If Baguex is sound — and a united Court thought so — then Arno-vits, and the view we propose here, follow as night follows the day. That this Court possesses power to affirm guilt of an offense lesser than that found by a court-martial cannot seriously be [516]*516questioned — for Article 59 (E>) of the Code, supra, states unequivocally:
“Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm so much of the finding as includes a lesser included offense.”
We cannot suppose that any substantial question will exist as to whether this Court is to be included within that Article’s grant of power to “Any reviewing authority with the power to approve or affirm a finding of guilty.”
Yet, is this power of the Court — or, in fact, of any other “reviewing authority” — limited to the .affirmance of lesser offenses as to which the law officer had furnished appropriate instructions to the court-martial? The answer to this inquiry must depend, we believe, on a consideration of the effect of Article 59 (a) of the Code, supra, which commands that a conviction or sentence be not set aside for error of law “unless the error materially prejudices the substantial rights of the accused.” Phrased otherwise, the question becomes one of whether the failure of the law officer to instruct as to a lesser offense or offenses fairly raised by the evidence constitutes error, the prejudicial character of which can not be filtered by “Any reviewing authority.” The response must be that, in the very nature of the problem, the question cannot be answered unequivocally for all prospective cases. Certainly it has not been answered identically as to all past ones. Herein is involved the distinction between our disposition, say, in Clark and that in Baguex.
The ratio of our action in Clark and Moreash was made clear in the latter, when we suggested that: “had the court been fully and properly instructed, its members might well have returned findings of not guilty — that is, they might have deemed the homicide in question to have been a purely accidental killing.” It is not inappropos at this point to indicate that our doubts in these eases were well-founded. Upon, rehearing, Clark was acquitted. United States v. Clark, CM 347515, May 7, 1952. Although authorized by us to do so, the convening authority in Moreash exercised his discretion not to direct a rehearing, and chose to order the charges dismissed. United States v. Moreash, CM 350776, November 6, 1952. In each of these cases, the possibility that the accused might have been acquitted by a court acting under proper instructions required that the instruction error be regarded as one which could not be purged of prejudicial effect by action short of a rehearing under proper instructions or an outright dismissal of the charges.
Still another facet of Clark deserves attention. This Court did not there direct a rehearing as the only means of ultimate disposition, but rather gave to The Judge Advocate General, United States Army, the option of returning the record to- the board of review “for further review in accordance with the opinion of the Court.” The only possible further action which could have been taken by the board would have been action to dismiss the charges. Although possessed of fact-finding powers not lodged in this Court, the board could not, consistently with our opinion, have reaffirmed the conviction of negligent homicide. Because there was a possibility that a properly instructed court-martial might well have returned a verdict of acquittal, the accused was entitled, in the absence of dismissal, to have his case reheard at the trial level.
In the Fox case in effect we directed a rehearing. There — as stated earlier —the accused had been charged with unpremeditated murder, but convicted of involuntary manslaughter by reason of a killing committed in the course of an assault. Because the basis for our action • in setting aside, the conviction there was the sharp disparity in theory between the offense charged and that found, the case is, in certain respects, different from others subjected to scrutiny here, although closely related to one aspect of Clark. However, it does present a further example of the type of instructional error which cannot be purged of prejudice. Moreover, Fox is not a case for application of the rule that one will not be deemed to have been prejudiced through mislabeling the offense actually charged. That rule depends for its application on the existence of a situation in which the facts [517]*517alleged operate to establish an offense under a statute different from that purporting to have provided the foundation for the charge. The finding returned by the court-martial in Fox substituted not only a different statute, but a different factual theory as well. Cf. United States v. Deller, 3 USCMA 409, 12 CMR 165.
We turn again to Baguex. There it was not disputed that the accused had killed his victim during the course of a physical encounter. Moreover, there was no slightest showing of excusable or justifiable homicide. There was, therefore, no legal possibility that he might be acquitted upon rehearing. He was guilty beyond doubt of homicide in some degree. The sole question could only have had to do with the matter of degree. Our review of the evidence led us to conclude that three offenses had conceivably been raised: premeditated murder, unpremeditated murder, and voluntary manslaughter. Neither involuntary manslaughter nor negligent homicide was in any way presented as an alternative to the offense charged— for the reason that the accused, although he might not have intended to kill his victim, had at least intended to inflict great bodily harm. The court-martial, it will be remembered, was afforded no instructions concerning lesser offenses — but, nevertheless, returned findings of guilt of unpremeditated murder. There can be no doubt that the law officer’s failure to instruct on such offenses was prejudicial error, not only on the basis of Clark but under all of the other opinions of this Court dealing with the necessity for lesser offense instruction. The problem then was twofold: (1) Whether the error’s prejudice might be remedied other than through rehearing. (2) If so, whether this Court should undertake curative action.
The answer to the first question was clearly in the affirmative, for guilt of homicide in some degree was clear — in distinct contrast, be it noted, to the situation understood by us to exist in Clark. Hence, affirmance of guilt in the lowest degree raised as a matter of law would accord the accused every benefit he could expect from proper instructions. Concerning the second inquiry we. specifically stated: “Whether we thus affirm [the lowest of the lesser offenses raised] in a particular case clearly rests within our sound discretion —for Article 59(6) of the Code, 50 USC § 646, is phrased in permissive terms only.” We thereupon chose in that case to exercise our discretion in favor of curative action.
In so doing, we were fully cognizant of the “military due process” approach to instructions laid down in United States v. Clay, 1 USCMA 74, 1 CMR 74. Clay undoubtedly secured to accused persons the. right to have courts-martial appropriately instructed as required by the Code and the Manual. However — as in the case of any other legal safeguard —the right is secured when the maximum benefits, to the protection of which it is directed, are guaranteed. United States v. Zimmerman, 2 USCMA 12, 6 CMR T2. Because of the distinct possibility of acquittal upon proper instructions, affirmance of negligent homicide in Clark and Moreash would not have secured to the accused involved there the maximum benefit of full instructions, and would, therefore, have denied to them an important right enunciated in Clay. This was not at all the case in Baguex. Because there, was no doubt of the accused’s guilt in some degree there, affirmance of guilt in the lowest degree raised as a matter of law did, as observed above, accord the accused all he could hope to gain by the instructions required by the Code and the Manual. The mandate of Clay was thus obeyed to the letter. This Court has held that error deemed reversible through the doctrine of general preju- dice may be the subject of purgation. United States v. Ferry, 2 USCMA 326, 8 CMR 126; United States v. Freeman, 2 USCMA 329, 8 CMR 129. Certainly, we are aware of no reason why at least certain violations of military due process may not likewise be cured. This conclusion may give pause to one familiar only with the procedures and thinking of the civilian — as distinguished from the military — practice. However, the approach upon which it is predicated is in no sense a product of the imagination of [518]*518this Court or of any member of it. Rather, it is firmly rooted in the unequivocal language of Congress in Article 59 of the Code, supra.
There was also, in Baguex, nothing at variance with our opinion in the later Fox case. Our affirmance of voluntary manslaughter in Baguex in no way substituted a wholly different theory as a basis for conviction. Baguex, be it remembered, had been charged with a premeditated and intentional killing, but was convicted of a killing in which he had intended — but without premeditation — either to cause death or to inflict great bodily harm. In affirming as to voluntary manslaughter, we merely added the mitigating element of “heat of sudden passion caused by adequate provocation.”' He was not thereby left in a position where he could contend reasonably that the conduct of his defense had been embarrassed.
Continuing the present analysis, we turn once more to the Arnovits case, which followed Baguex in point of time, as well as in terms of logic. Arnovits, as stated previously, had been charged with having uttered certain checks with intent to deceive, not at the time intending to maintain a sufficient balance to meet them, and with dishonorably failing thereafter to maintain funds for this purpose. However, the court-martial — without the aid of appropriate instructions — convicted him only of the dishonorable failure to maintain a balance sufficient to cover the checks in question. Considering the evidence of record, we concluded: (1) that the offense of which the accused was found guilty was reasonably raised by the evidence, and (2) that it should have been the subject of instructions. Indeed, we proceeded to determine that the crime found by the court was the only lesser offense fairly raised. Looking to our action in Baguex, under which— had Arnovits been found guilty as charged — we might have purged the instructional error of prejudice by affirming as to the crime in fact found, it was quite apparent that the court had removed all legal prejudice by its finding of guilt of the lesser offense only. If action on our part might have had such an effect, we cannot see how identical action at the trial level does not operate to accomplish the same result. Article 59 (a) appears to us to demand that we recognize that the result in this type of situation is the same, whether the action leading to it is taken by this Court, by a board of review, by a convening authority, or by the court-martial itself. It was the result in Baguex which removed the prejudice — not the fact that the action taken to produce that result came from this Court. It was settled in Baguex — and by a united Court — that the error flowing from a law officer’s failure to furnish proper instructions concerning the elements of lesser offenses fairly raised may — in appropriate cases — be purged of prejudicial effect by the Court’s affirmance of the lowest of the lesser offenses fairly raised. If such action by this Court removes the prejudice arising from such an omission, would it not be palpably absurd— at least in the usual case — to hold that prejudice, or its fair risk, exists where the court-martial has returned a finding of guilt of that which this Court holds to be the lowest of lesser included offenses, although uninstructed concerning the elements of that found? The exceptional situation, of course — and for reasons which have been elaborated fully earlier in this opinion — finds representation in the Clark, Moreash, and Fox cases.
Factually, insofar as here pertinent, the Arnovits case is obviously within the purview of Baguex, rather than that of Clark — for it was undisputed that the accused uttered the checks in question, and clear beyond cavil that he failed wrongfully to maintain a proper bank balance. Arnovits, like Baguex, was guilty of the generic crime charged in some degree, and the only question was one of grade. His acquittal was out of the question, for he was — as a matter of law — guilty of the offense found, at the very least.
In response to this approach in Arno-vits, it has been suggested that we are without power under Article 59(6) of the Code, supra, to affirm a conviction of an included offense, lesser than that charged, which was returned by the court-martial itself and in the absence of instructions thereon. The short. [519]*519answer to this proposal is that Article 59 (6) is not the basis for the action under scrutiny, for the reason that in such a case, we are not seeking to affirm an offense lesser than that found, but, instead, are affirming the very offense found by the court-martial. This step is taken not in response to the provisions of 59 (6), but under the mandate of Article 59(a), prohibiting reversal for error not materially prejudicial to the substantial rights of the accused. Or, to put the matter only a little differently — and perhaps more precisely — the proposed action is based on both Article 59(a) and 59(6), each interpreted reasonably and in light of the procedures and objectives of the other.
From Arnovits we return to the Burden case. The accused there was charged under Article 134 of the Code, supra, with assault with intent to commit rape. In spite of much evidence of intoxication, the law officer failed to advise the court-martial concerning the elements of lesser offenses not involving specific intent. The court, however, through exceptions and substitutions, found the accused not guilty of assault with intent to commit rape, but guilty of indecent assault, also proscribed by Article 134. Considering the record, we determined that the evidence fairlj raised not only the lesser offense of indecent assault, but also that of simple assault, the latter defined in Article 128 of the Code. Accordingly, we had no choice but to hold the error prejudicial.
It then became necessary to determine the appropriate disposition of the case. In its factual complex, the case was not squarely within Clark and Moreash, for there was, on the evidence, no doubt that Burden was guilty of some form of assault — either assault with intent to commit rape, indecent assault, or mere simple assault. Nor was the case within Fox. A conviction of Burden for indecent assault, or for simple assault, would not be to convict him under a theory of law and fact wholly opposed to that upon which he was charged. However, action such as that taken in Baguex was entirely possible. We were certainly free to affirm a conviction of Burden for ¡simple assault — for that would most eer-tainly have given him the most he could possibly expect through full and proper instructions. Of course, we might also have directed a rehearing. Lastly, it was open to us to return the record to The Judge Advocate General, United States Army, leaving to that official the option to remand the case to the convening authority for rehearing, or to return the record to the board of review for consideration of affirmance of simple assault, and purgation thereby of the prejudice flowing from the instructional error. We adopted the latter course — exercising the discretion vested in us, as made plain in Baguex. j
We come finally, to the instant case. The accused here was brought to trial on a charge of unpremedi- tated murder, but convicted instead of voluntary manslaughter — although the court-martial had received no instructions on the elements of the latter offense from the law officer. Patently the offense of voluntary manslaughter was fairly raised as a reasonable alternative to that charged, and should, therefore, have been the subject of appropriate instruction. It is likewise clear, from the recited facts, that no other lesser offense was raised- — • for the accused, in purposefully firing four rounds directly at his victim from a distance of only a few feet, must indeed be deemed to have intended to kill him, or at least to do him great bodily harm. This is not at all a Clark case, for there can here be no doubt that the accused was guilty of homicide in some degree. The only question was, as in Baguex, in which degree? Viewing the evidence in the light most favorable to the accused, the. offense of lowest grade fairly raised was voluntary manslaughter — that found by the court. If the accused had been convicted of unpremeditated murder, we could— again as in Baguex — have removed the prejudice flowing from the instructional error by affirming guilt of voluntary manslaughter. Accordingly, it is our view here — as it was in Arnovits — that the failure of the law officer to instruct as to voluntary manslaughter was error, but that the action of the court in returning a conviction of voluntary manslaughter — under the facts of this case [520]*520—deprived the error of all prejudicial effect. This case, like Arnovits, is clearly distinguishable from Fox in the same manner that Baguex was distinguishable therefrom.
V
It has been suggested, however, that, if we have proved anything, we have proved too much. In other words — and in terms of logic — it is said that from Baguex and Arnovits, and from the action we propose in the case before us now, we are required to move to a position under which it must be held that a total failure of instructions as to any offense does not result in prejudicial error — provided the court-martial in fact returns findings of guilty in the lowest criminal degree fairly raised by the law and the evidence — this regardless of whether the crime found is that charged or one lesser included within it. To put the matter in another fashion, that we must repudiate the cases of our Clay line.
We are sure that this is not true. In Clay, it must be remembered, there was a total failure of elemental instructions. In the cases with which we have been dealing here, however, the omission touched only those concerning lesser included offenses. There is a vast deal of difference between the two situations —for in the latter the instructions as to the principal offense afforded at least some “ascertainable standards of guilt.” Cf. Screws v. United States, 325 US 91, 89 L ed 1495, 65 S Ct 1031, 162 ALR 1330. In Clay there were none whatever. There was thus avoided in Baguex and its fellows that wholesale flouting of Congressional intent, a disregard of which in Clay we unhesitatingly characterized as a deprivation of military due process. Although this may reflect only a difference in degree, its critical quality cannot safely be ignored. Thus in Clay we simply find an additional example of the sort of instructional error for the prejudice inherent in which no detergent exists. See Manual, supra, paragraph 87c, page 147.
It has been amply demonstrated, we believe, (1) that inescapable logic demands the result we have reached in the case at bar, and (2) that logic of the same sort does not require that we go further. However, for the sake of argument — and for that alone — let us grant that, viewed solely through the spectacles of a certain conception of logic, the road we are traveling might conceivably lead to conflict with the spirit of Clay, if we were to follow it all the way. We are speaking in this argumentative branch of the present opinion, of course, not primarily of the mechanical sort of logic typified in conventional thinking by the syllogism, but rather of that course of ideal development based on analogy and through which the law has so often grown. Neither are we speaking, it must be apparent, of logic which is necessarily “sound.” Instead we are speaking objectively of the intellectual device under discussion as a method — in this instance a judicial method. This is the sort of “logic” by which we are challenged, and perforce it must supply the vocabulary in our treatment of this division of the present problem.
With all of this in mind — including the arguendo character of the present comments — our point is simply this: we do not at all propose to follow it to the unfortunate result of conflict with Clay. We do not wish to do so, and we are not required to do so by any precept of juristic philosophy or practice of which we are aware. Logic, and logic alone, does not chart the path of the law. It is in no sense the sole device through which the directive force of a principle may be exerted. Rather it is but one of several methods through and by which judges work. Cardozo, The Nature of The Judicial Process, 30, 31. “The life of the law has not been logic; it has been experience.” Holmes, The Common Law, 1. Although we are prone to do so in the usual case, we simply need not choose to follow an exclusively and undiscriminating analogical method in this one. Moreover — as will be demonstrated in a moment — we are in truth precluded from doing so by the previous decisions of this Court.
Article 59(6) of the Code, supra, as we have seen, authorizes “Any reviewing authority . . . [to] approve or affirm so much of the finding as includes a lesser included offense.” The Article [521]*521is wholly silent on the question of whether the exercise of this power shall be confined to those lesser included offenses which have been the subjects of instruction. Conceivably, therefore, and in light of the view taken in many of our earlier opinions, we could have limited our power — and that of other “reviewing authorities” — in this particular to those lesser crimes covered by instructions. We are not sure that this would not have been the “logical” course for us to follow. Wisely, however, we chose to act in another way, and in Baguex we affirmed guilt of a lesser offense concerning which no instruction whatever had been furnished — although, of course, the principal crime charged had been fully covered. These phenomena may be thought of as resting at the terminus of one swing of a pendulum.
At the other end of the arc are to be found Article 51 (e) and the Clay case, as well as those other-decisions of this Court requiring sua sponte instructions on lesser offenses reasonably raised by the evidence. Article 51(c) provides that “the law officer of a general court-martial . . . shall . . . instruct the court as to the elements of the offense and charge the court” concerning the presumption of innocence, reasonable doubt, the burden of proof and the like. In the face of pleas of not guilty, the law officer in Clay omitted completely to instruct as to any offense. However, the accused was found guilty of the offense charged. We held this failure to constitute a deprivation of military due process requiring reversal and a rehearing without more. As in the case of Article 59(6) — as to a related matter mentioned in the preceding paragraph — Article 51(e) does not provide explicitly for instruction on lesser offenses raised by the evidence as reasonable alternatives to that charged. Conceivably here too, therefore, and in light of - special problems of personnel frequently said to be implicit in the administration of military justice — as distinguished from its civilian counterpart — we could have interpreted the latter Article to have required elemental instruction only as to the offense charged. Wisely again, we did not do this, but rather — and in a lengthy line of decisions — chose to understand the legislative language to demand sua sponte instructions on all reasonably raised lesser crimes.
We are sure that in what has been said thus far there is bound up an irrefutable demonstration of the proposal that logic of the sort of which we have been speaking cannot possibly solve the problem before us now. What a united Court has said Article 59(6) means is, in this sense, “logically” inconsistent with what the same judges earlier had said Article 51(c) meant. To put the matter otherwise, the interpretation we placed on the former Article in Baguex cannot at all be said to follow “logically” from the meaning we had earlier given the latter in the Clay line. If we look at Clay and its heirs and assigns from the. position of Baguex, Clay is wrong; if we view Baguex from the vantage' point of Clay, Baguex is wrong — that is, wrong in terms of the sort of logic by which we are questioned here.
Certainly, we are not suggesting that either is wrong. Our point, indeed, is that both are right. Each is merely “illogical” — and only so, of course, when measured solely in terms of the other. The Court can only have chosen to adopt a standard other than that of analogue when, in the very teeth of the line of instruction cases beginning with Clay, it deliberately reached the conclusion it expressed in Baguex. It chose, we believe, to adopt the standard of function — that is, that of a sound and workable result. It chose to furnish a solution which was genuinely called for by the exigencies of the military justice scene, and which, at the same time, amply protected the substantial rights of an accused person. In short, it chose to approach the problem pragmatically— that is, practically.
The net of all this is that, within the area under discussion,- there exist two distinct lines of authority, each rooted in a firm and sensible foundation; the one in Article 51 (c) and Clay; the other in Article 59(6) and Baguex. These lines are in a sense parallel, but the end of one comes to rest at the beginning of the other.- Since neither can be pursued to the limit of-[522]*522its logic, they can never become truly parallel. In terms of “logic,” they are irreconcilable if unduly extended. In terms of practice, however — that is, of utility— their conflict is susceptible of an entirely sound and workable solution.
Granting — still argumentatively — the logical inconsistency of 51(c) and 59 (6), as interpreted by this Court, we must determine where to place the instant ease, and its brother Arnovits, as between the two Articles. There are those who would push Baguex no further than its facts, but we would do so. We believe the answer to be found in Article 59(a), which provides that “a finding or sentence . . . shall not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” To us, Gibson was not prejudiced here, although Clark and Moreash, for example, would have been, had we acted other than we did in their cases. On the other hand, we will not carry Article 59 (a) over to a Clay situation, in which there were no instructions whatever as to elements — for in terms of function, of result, of policy, of what you will, it simply does not make sense to do so. We are sure that the line we are drawing in the solution of this problem is infinitely preferable to its alternative — as being at once more nearly responsive to the deeds of military justice and wholly consistent with the spirit of the Uniform Code.
VI
In final summation, let us approach the present problem in terms of legislative intent. Let us suppose at the outset that an accused is charged with the commission of offense A. Included within offense A are offenses B and C, the former of greater gravity than the latter. Both of these- and no more are raised by the evidence adduced at the trial as reasonable alternatives to A— that is, the crime charged. It must also be understood that there is no basis for a finding of either excuse or justification. The court-martial is instructed fully as to A, but no sort of mention is made either of B or C. More specifically now, let us posit, first, that the court-martial finds the accused guilty of B, and, secondly, let us assume that its members find him guilty of C. In the first situation, clearly we may purge the error by affirming guilt of offense C — and this despite the total absence, of instructions as to it. All members of the Court must agree to this, since explicit authority for the assertion is found in the Baguex case, and each signed the opinion there without reservation. Yet it is argued as to the second example that any sort of purgation is an impossibility, that a rehearing must be ordered, and that we are without authority to affirm guilt of offense C — this, although, by definition, C is the lowest offense of the variety involved of which the accused may be said to be guilty under the law and the facts. And why is this argued? Because and only because there has been no instruction as to C. Yet under the facts of the earlier illustration, Baguex would permit af-firmance of the selfsame offense— equally without instructional direction. The “logic” of this position is indeed difficult of acceptance. We are told, however, that Congress in Article 59(5) has provided for this action in the case of a lesser included offense, but not otherwise.
It must be apparent to all that the the only possible theory on which this Court may properly- — in either of the two supposititious cases — affirm guilt of offense C involves the notion that the error arising from instructional failure was purged. Purgation is effected within the area with which we are concerned through an attribution to the accused of guilt of the lowest offense compelled by the law and the facts. The source of this attribution — that is, of purgation —is wholly irrelevant and immaterial. Thus, the question is, was the error purged — not at all, who purged it. Article 59 (a) and Article 59 (5) are closely related, and are parts of an indissoluble whole. If this Court was correct in its ascertainment of legislative intent as to Article 59(5) in Baguex, is it not palpably absurd to charge against Congress a desire to cause purgation — with all of its' important practical consequences in the type of case with which we are dealing — to hinge on an irrele[523]*523vant, a totally illogical consideration? In the absence of more convincing evidence. than we are furnished here, we should not — we must not — attribute to the national legislature an illogie of such massive proportions.
YII
It has been said — and with vigor — ■ that the view we propose here operates to undermine effectively the instructional framework laboriously erected by this Court in many sound decisions. Of course, this is untrue. We are as attached to the core of these cases as we ever were — but at the same time we are quite opposed to the notion of riding a good horse to death. This unselective criticism, in truth, is compact of the very stuff of which bugaboos are made, and to express it is to talk through one’s hat. Our disposition of this case no more saps our instructional edifice than did our Marsh case strike at the vitals of the administration of discipline in the armed services. See United States v. Marsh, 3 USCMA 48, 11 CMR 48. To both chimeras we accord the mercy of our silence.
Accordingly the decision of the board of review is affirmed.