Opinion of the Court
Robekt E. Quinn, Chief Judge:
The accused was convicted by general court-martial of wrongfully using morphine, a habit-forming narcotic drug, in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728. He was sentenced to dishonorable discharge, total forfeitures and confinement at hard labor for two years. The convening authority approved the find[34]*34ings, but reduced the period of confinement to one year and suspended execution of the punitive discharge until the accused’s release from confinement or completion of appellate review, whichever is the later date. This action was affirmed by a board of review, in the office of The Judge Advocate General of the Army. We granted the accused petition for review to determine the sufficiency of the evidence and the existence of command control.
In proof of the charge against the accused, Masao Mori, a Japanese police officer, testified that on the afternoon of April 21, 1953, he observed the accused in a Japanese home then under police surveillance. In front of him was a packet normally used as a narcotic container, and by his side was a used packet, twisted as if used and disposed of. Ma-sao notified the Criminal Investigation Division, supplying that agency with a complete description of the accused. He then followed the accused after the latter’s departure, but lost him on the crowded city streets. Later that day the policeman again met him in front of a railroad station, accompanied by a girl. The pair entered a nearby shop, but only the girl emerged. Later the accused was apprehended as he reentered the camp. Upon request of agents of the Criminal Investigation Division, he submitted a specimen of urine for ■analysis. This was forwarded to the 406th Medical General Laboratory. Analysis by a qualified toxicologist established the presence of morphine. The accused denied the use of morphine, and said that he was not in the Japanese home described by Masao, but had spent the day in the company of his fiancee completing plans for their wedding.
The conclusion that the specimen of urine contained morphine was based upon the Marquis, Frohde, and Mecke color reaction tests performed by Captain Dixon, Chief of the Toxicology Section of the Tokyo Laboratory. These tests were performed under the same conditions and by the same personnel as those in United States v. Ford, 4 USCMA 611, 16 CMR 185. For the reasons set out in that case, we held that the.evidence of guilt was sufficient.. In the case at bar, the evidence is considerably stronger. Here, the accused was found in an establishment known to traffic in drugs. He used evasive tactics to avoid a civilian policeman who sought only to keep him in sight until the arrival of American authorities. And, he neither produced his fiancee as a corroborative witness, nor did he explain his failure to do so. Under the circumstances, the issue of fact raised by the accused’s denial of the use of narcotics appears to have been correctly resolved against him.
The facts upon which the second issue is framed were elicited by the defense counsel during the course of interrogation of the court members on voir dire. Complete understanding and proper disposition of the problem presented requires an extensive exposition of the matters developed in the trial forum. This interrogation indicated that three months prior to the date of this trial, Colonel Alford, the Commanding Officer of the Kokura General Depot, conducted a two-hour lecture on the subject of courts-martial for officers of his command. Among those in attendance were three officers who subsequently became members of the general court-martial appointed by the commanding officer, Southwestern Command, for trial of the instant case. When this fact appeared, the following colloquy took place:
“Defense Counsel: You three gentlemen who were present, I want you to listen to a little story. I am going to ask you a question concerning it. A Commanding Officer of an installation had a lieutenant colonel call him on one occasion. This lieutenant colonel wanted to know why his efficiency report was rather low in one particular aspect, and the Commanding Officer proceeded to tell him that his efficiency report was low there because he had been a member of several court-martials. During those court-martials, the' findings were, in some instances, not proper and, after the findings that were proper, in many instances, the sentences were not appropriate or proper. Did [35]*35you hear a story similar to that, Colonel Humphrey? .
Colonel HumphRey: I did.
Defense Counsel: Colonel Cuth-bert?
Colonel CuthbeRt: I did.
Defense Counsel: Colonel Bag-ley?
Colonel Bagley: I don’t remember. I have heard stories about efficiency reports, but I don’t remember them referring to court-martials.
Defense Counsel: Do you recall it referring to court-martials. Colonel Humphrey ?
Colonel HumphRey : Yes.
Defense Counsel: And you do, Colonel Cuthbert?
Colonel CuthbeRT : Yes.
Defense Counsel: You don’t recall that it referred to a court-martial for the reason of one specific item on his efficiency report being low?
Colonel Bagley: That is my remembrance.
Defense Counsel: Now, Colonel Humphrey, in the little story I repeated to you, why did this lieutenant colonel’s efficiency report suffer according to the story which I have just repeated?
Colonel HumphRey : For the lack of exercising good judgment expected of an officer in the army.
Defense Counsel : And whose opinion was it that he had failed to exercise good judgment in the story I told you?
Colonel HumphRey: The Commanding Officer’s — the rating officer.
Defense Counsel: And you, Colonel Cuthbert, why did this individual’s efficiency suffer?
Colonel CuthbeRT: I think it was substantially as Colonel Humphrey has stated.
Defense Counsel: And that was in the opinion of the Commanding Officer, is that correct?
Colonel Cuthbert : That is right.
Defense Counsel: Now, in that little story or in normal court-martial activities, is the Commanding Officer usually present during these court-martials to hear the evidence? Colonel Humphrey.
Colonel HumphRey : No; •
Defense Counsel: Colonel Cuth-bert?
Colonel CuthbeRT: Not normally.
Defense Counsel: Then, Colonel Humphrey, then you stated that this man’s efficiency report suffered because he failed to exercise good judgment. In your opinion, how would the Commanding Officer know whether that officer had exercised good judgment if he wasn’t there to hear the witnesses, test their credibility, and to observe the accused. How would he know that the officer had failed to exercise good judgment?
Colonel HumphRey: I do not know that. The statement was that the rating was low specifically due to action on court-martials.
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Opinion of the Court
Robekt E. Quinn, Chief Judge:
The accused was convicted by general court-martial of wrongfully using morphine, a habit-forming narcotic drug, in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728. He was sentenced to dishonorable discharge, total forfeitures and confinement at hard labor for two years. The convening authority approved the find[34]*34ings, but reduced the period of confinement to one year and suspended execution of the punitive discharge until the accused’s release from confinement or completion of appellate review, whichever is the later date. This action was affirmed by a board of review, in the office of The Judge Advocate General of the Army. We granted the accused petition for review to determine the sufficiency of the evidence and the existence of command control.
In proof of the charge against the accused, Masao Mori, a Japanese police officer, testified that on the afternoon of April 21, 1953, he observed the accused in a Japanese home then under police surveillance. In front of him was a packet normally used as a narcotic container, and by his side was a used packet, twisted as if used and disposed of. Ma-sao notified the Criminal Investigation Division, supplying that agency with a complete description of the accused. He then followed the accused after the latter’s departure, but lost him on the crowded city streets. Later that day the policeman again met him in front of a railroad station, accompanied by a girl. The pair entered a nearby shop, but only the girl emerged. Later the accused was apprehended as he reentered the camp. Upon request of agents of the Criminal Investigation Division, he submitted a specimen of urine for ■analysis. This was forwarded to the 406th Medical General Laboratory. Analysis by a qualified toxicologist established the presence of morphine. The accused denied the use of morphine, and said that he was not in the Japanese home described by Masao, but had spent the day in the company of his fiancee completing plans for their wedding.
The conclusion that the specimen of urine contained morphine was based upon the Marquis, Frohde, and Mecke color reaction tests performed by Captain Dixon, Chief of the Toxicology Section of the Tokyo Laboratory. These tests were performed under the same conditions and by the same personnel as those in United States v. Ford, 4 USCMA 611, 16 CMR 185. For the reasons set out in that case, we held that the.evidence of guilt was sufficient.. In the case at bar, the evidence is considerably stronger. Here, the accused was found in an establishment known to traffic in drugs. He used evasive tactics to avoid a civilian policeman who sought only to keep him in sight until the arrival of American authorities. And, he neither produced his fiancee as a corroborative witness, nor did he explain his failure to do so. Under the circumstances, the issue of fact raised by the accused’s denial of the use of narcotics appears to have been correctly resolved against him.
The facts upon which the second issue is framed were elicited by the defense counsel during the course of interrogation of the court members on voir dire. Complete understanding and proper disposition of the problem presented requires an extensive exposition of the matters developed in the trial forum. This interrogation indicated that three months prior to the date of this trial, Colonel Alford, the Commanding Officer of the Kokura General Depot, conducted a two-hour lecture on the subject of courts-martial for officers of his command. Among those in attendance were three officers who subsequently became members of the general court-martial appointed by the commanding officer, Southwestern Command, for trial of the instant case. When this fact appeared, the following colloquy took place:
“Defense Counsel: You three gentlemen who were present, I want you to listen to a little story. I am going to ask you a question concerning it. A Commanding Officer of an installation had a lieutenant colonel call him on one occasion. This lieutenant colonel wanted to know why his efficiency report was rather low in one particular aspect, and the Commanding Officer proceeded to tell him that his efficiency report was low there because he had been a member of several court-martials. During those court-martials, the' findings were, in some instances, not proper and, after the findings that were proper, in many instances, the sentences were not appropriate or proper. Did [35]*35you hear a story similar to that, Colonel Humphrey? .
Colonel HumphRey: I did.
Defense Counsel: Colonel Cuth-bert?
Colonel CuthbeRt: I did.
Defense Counsel: Colonel Bag-ley?
Colonel Bagley: I don’t remember. I have heard stories about efficiency reports, but I don’t remember them referring to court-martials.
Defense Counsel: Do you recall it referring to court-martials. Colonel Humphrey ?
Colonel HumphRey : Yes.
Defense Counsel: And you do, Colonel Cuthbert?
Colonel CuthbeRT : Yes.
Defense Counsel: You don’t recall that it referred to a court-martial for the reason of one specific item on his efficiency report being low?
Colonel Bagley: That is my remembrance.
Defense Counsel: Now, Colonel Humphrey, in the little story I repeated to you, why did this lieutenant colonel’s efficiency report suffer according to the story which I have just repeated?
Colonel HumphRey : For the lack of exercising good judgment expected of an officer in the army.
Defense Counsel : And whose opinion was it that he had failed to exercise good judgment in the story I told you?
Colonel HumphRey: The Commanding Officer’s — the rating officer.
Defense Counsel: And you, Colonel Cuthbert, why did this individual’s efficiency suffer?
Colonel CuthbeRT: I think it was substantially as Colonel Humphrey has stated.
Defense Counsel: And that was in the opinion of the Commanding Officer, is that correct?
Colonel Cuthbert : That is right.
Defense Counsel: Now, in that little story or in normal court-martial activities, is the Commanding Officer usually present during these court-martials to hear the evidence? Colonel Humphrey.
Colonel HumphRey : No; •
Defense Counsel: Colonel Cuth-bert?
Colonel CuthbeRT: Not normally.
Defense Counsel: Then, Colonel Humphrey, then you stated that this man’s efficiency report suffered because he failed to exercise good judgment. In your opinion, how would the Commanding Officer know whether that officer had exercised good judgment if he wasn’t there to hear the witnesses, test their credibility, and to observe the accused. How would he know that the officer had failed to exercise good judgment?
Colonel HumphRey: I do not know that. The statement was that the rating was low specifically due to action on court-martials. I do not believe it was such, and my statement was based on the lack of exercising good judgment and I should further state other actions because it is obvious that no officer is rated entirely on the work he does one or possibly two days out of a month. That would be ridiculous to assume that.
Defense Counsel :. Let me ask you this, Colonel Humphrey. Is the Commanding Officer of any other .individuals, regardless of whether , he is an enlisted man or officer, entitled to base that efficiency report on that officer on his activities as a member of a court-martial?
Colonel HumphRey : I believe so. I would say ‘Yes,’ and I would in rating an officer. I would consider the actions of an officer on a court, not to the extent, as I know you are referring, to give a reprimand, to admonish or specifically point out an action on a specific individual.
Defense Counsel: But to hold a low efficiency report if he doesn’t do what he thinks he .should do, that is permissible you feel?
Colonel HumphRey: No.”
After further efforts of the defense to determine the purpose of Colonel Alford’s parable and its effect upon the members in question were made, Colonel Cuthbert, one of the officers inter[36]*36rogated, interrupted the examiner, and the following occurred:
“Colonel CuthbeRT : I think you should get the whole background. As long as you have introduced the sub-jéct, I would like to tell' the whole background.
Defense Counsel: I would be glad to hear it and also, if the court will permit, I would like to call Colonel Alford to tell why he told the story to the various members of this post. I understand that Congress is very interested and has called the judges of the Court of Military Appeals before'them to tell whether the Commanding Officers were exercising undue influence over the court members. I would like to help Congress and the Court of Military Appeals. I would like to call Colonel Alford in to have him tell his story and I will also be glad to have the court members tell the story. If the court will permit Colonel Alford to be called, I will be glad to have you do so. I will let him repeat his lecture for the record.
Law Officer: Very well. Let Colonel Cuthbert relate the story.
Colonel CuthbeRt: This was a general meeting in which the general duties of members of the courts were discussed and in the course of that discussion Colonel Alford presented to the group of officers assembled statistics dealing with special courts, particularly, that had been tried in this court in this camp over the period of about the last year. Those statistics were very interesting in that they showed a very high percentage of convictions by special courts of privates that had been brought before it to be tried with maximum sentences almost throughout Whereas, it showed that as a man progressed in rank — and these were statistics — his chances of being found guilty of any offense decreased with his rank and that the sentences decreased with rank so that you could come to the only conclusion that the courts were apparently of the opinion that anyone who acquires stripes could do no wi'ong and that they were of the opinion that anyone who was a private must, of necessity, be guilty and be wrong and this story to> which you are referring was in connection with that and Colonel Alford was — very specifically made the point —The point he was trying to drive home was that it is a man’s duty to do a duty as he sees fit and not the fact that he may have achieved rank and may have many other things, but to find him guilty on the facts presented in court and I think that that is in conformity with the Manual for Courts-Martial.
Defense Counsel: But the story was told about a man’s efficiency suffering for his court-martial activities, was it not?
Colonel Cuthbert : There was a story of that nature; the exact statement or how it was phrased I cannot remember.
Defense Counsel : Now, based on what you have stated there, Colonel, let me ask you this: We try a master sergeant today. This is a hypothetical question. And we also try a private. They both get six months’ confinement and two-thirds of his pay. Who has been more severely punished — both being tried for the same offense?
Colonel CuthbeRt: The master sergeant.
Defense Counsel : They both got the maximum, didn’t they?
Colonel CuthbeRT: As a matter of loss of grade. However, if you check the statistics of the special court-martials in Kokura, you will find that the master sergeant was fined about $20.
Colonel Humphrey: The question has been answered. I will repeat it again for the record. I am a regular army officer. I am a major in the regular army and to be questioned to this extent, I consider it to be irregular.
Defense Counsel: Well, do you have anything further to say, Colonel?
Colonel HumphRey: No, I have taken the oath.
Defense Counsel: I understand that you might consider it irregular [37]*37and, Colonel, if I was a regular army-officer remaining in the army I wouldn’t question you this way or any other officer because the next time I appear before you, you will be trying me instead of the accused. However, I am lacking five months of being a civilian. I feel that in many instances the Commanding Officers have taken undue prerogatives in talking with court members and for that reason I have questioned you because you said you were present. I will do any court that way in which I am charged as defense counsel. I am sorry if you are offended. Believe me, I will not carry it outside of the courtroom. Believe me, even if you were offended, I would do it again if I was called upon to defend any accused in which a question of undue influence on the part of the Commanding Officer might arise.”
At the conclusion of the voir dire examination each of the court members concerned disclaimed any improper motivation. Moreover, each declared that he was prepared to decide the instant case solely upon the evidence presented, as required by his oath, and without regard to the presumed desires of his commanding officer. Thereupon, the defense counsel announced that the accused did not desire to challenge any member either for cause or peremptorily.
The appellate defense counsel now characterize the court-martial lecture conducted by Colonel Alford as an exercise of unlawful command influence, effectively depriving the accused of a fair trial.
The history of unlawful command influence, and the importance attaching to it in the congressional hearings on the Uniform Code of Military Justice, were fully expounded by this Court in United States v. Littrice, 3 USCMA 487, 13 CMR 43. We there discussed the dual purpose of Article 37 of the Code, supra, 50 USC § 612, and pointed out that it was designed to preserve the integrity of military courts without unduly restricting those responsible for the conduct of our military operations. That Article prohibits a convening authority, or other commanding officers, from censuring, reprimanding, or admonishing a court, or members thereof, because of the findings or sentence adjudged. It further proscribes coercing or otherwise influencing a court-martial member by any unauthorized means. Needless to say, this provision of the Code purports to assure to all in the military service an absolutely fair trial in which the findings and sentence are determined solely upon the evidence, and free from all unlawful influence exerted by any military superior. United States v. Isbell, 3 USCMA 782, 14 CMR 200.
Allegations of unlawful influence stem most frequently from pretrial instructions imparted by military commanders or their legal advisers. Recognizing the danger that either the language or the motive of an instructor may be misconstrued, civilian appellate courts generally caution against their use in civilian courts. Williams v. State, 89 Tex Cr 334, 231 SW 110; Thomas v. State, 97 Tex Cr 432, 262 SW 84; People v. Fisher, 340 Ill 216, 172 NE 743. However, the requirements of the military prohibit their complete eradication, and the Manual for Courts-Martial, United States, 1951, paragraph 38, expressly authorizes their use under proper circumstances. Justification for the thorough indoctrination of military personnel in the substantive and procedural provisions of the Code and the Manual is readily apparent. Members of commands exercising inferior courts-martial jurisdiction are required to conduct the proceedings of such tribunals without the guidance of a law officer or others skilled in military law. United States v. Isbell, supra; cf. United States v. Pulliam, 3 USCMA 95, 11 CMR 95. Moreover, the sentence procedures of general courts-martial involve the application of the complicated provisions of the Manual, normally without special instructions from the law officer. United States v. Isbell, supra. Forbidding or needlessly curtailing lectures designed to prepare prospective court members for the proper discharge of their important functions would approximate setting a ship adrift without a rudder. Indeed, circumstances may well [38]*38dictate the need for additional instructions when deficiencies on the part of court-martial members- become apparent. But, as wé cautioned in United States v. Isbell, supra:
“The steps taken by a commanding officer to correct deficiencies, however, must be limited to instructions, and should not extend to any action amounting to censure, reprimand, or admonition of the court.”
■ ' In the case at bar the necessity for additional instructions in military justice was clearly dictated by the statistics compiled by Colonel Alford. These figures demonstrated beyond question that special courts-martial were guided to their conclusion of guilt or innocence solely by considerations of rank. In the matter of severity of sentence, as well, this same idea played its evil role. Confronted by these clear indications, the commanding oificer was compelled to take affirmative action to preserve the morale of his organization as well as its discipline. In his lecture condemning this, he made no reference to any particular court, or any particular case. His single concern was with the effect of rank upon the findings and the sentence. His reference to efficiency reports was predicated wholly upon an individual’s failure to be governed by the guiding norm of our system — Equal Justice Under Law. Viewed in their entirety, his comments on this occasion were in no way incompatible with the requirement of an absolutely fair trial for- this accused. A contrary conclusion requires the isolation of the parable employed by Colonel Alford and its consideration wholly out of the context in which it was used.
The decision of the board of review is affirmed.