Opinion of the Court
ROBERT E. Quinn, Chief Judge:
Despite his plea of not guilty, appellant was convicted by general court-martial, convened at Wiesbaden, Germany, under three specifications alleging offenses in violation of Article of War 94, 10 USC § 1566, and sentenced to receive a bad-conduct discharge; to be confined at hard labor for twelve months, and to forfeit $50.00 per month for twelve months. Apart from suspension by the convening authority of the execution of the punitive discharge, the findings and sentence have been approved by the convening authority and affirmed by a board of review. Although the offenses charged occurred before May 31, 1951, the trial was held after that date, and is to be dealt with according to the procedural provisions of the Uniform Code of Military Justice, 50 USC §§ 551-736, and the Manual for Courts-Martial, United States, 1951.
In substance, the first specification alleged larceny, on or about March 19, 1951, of approximately 300 gallons of gasoline, property of the United States. The second charged a further larceny, on or about March 28, 1951, of approximately 400 gallons of gasoline, property of the United States. And the third charged wrongful sale, on or about March 20, 1951, of approximately 300 gallons of gasoline, property of the United States. Further facts are unnecessary to a proper understanding and consideration of the question presented.
Appellant assigns as error the failure of the law officer personally and directly to instruct members of the court-martial on the elements of larceny, the offense laid in Specifications 1 and 2. No objection is made to the law officer’s instructions concerning the wrongful sale alleged in Specification 3. The basis for this assignment of error is as follows.
During the course of his closing argument, defense counsel spelled out in detail the constituent elements of larceny, observing as he did so that he was “sure that the law officer will do it at .the proper time.” Upon conclusion of his argument the court recessed for lunch. When it reconvened an hour and ten minutes thereafter, the law officer proceeded to instruct the court as to the elements of the offenses charged. He stated, with respect to the larceny specifications, that the accused was charged with “the alleged stealing of certain specified amounts of gasoline of some value specified, furnished for and intended for the military service and property of the U.S.” Then he said:
. Now. I am going to eliminate any prolonged discussion as to the necessary elements of proof. Those portions of the Manual for Courts-Martial 1949 and 1951 as were read by defense counsel correctly state the elements of proof. If the court wishes them re-read, they can re-open the court and we will have them read, but I don’t seek to prolong this particular phase of the case. . .
[442]*442Thereupon the law officer referred the members of the court to specific paragraphs of the Manual for Courts-Martial, US Air Force, 1949.
After completing his instructions, the law officer asked whether either counsel had “any further requests or desires.” Trial counsel said: “The prosecution has none”; and defense counsel replied: “The law officer has adequately covered the instructions in the case.”
It is our conclusion that defense counsel below, by expressly and unequivocally acquiescing in the law officer’s instructions, has waived any right to now claim prejudicial error based on deficiencies in those instructions.
In view of the fact that the requirement of instructions on the elements of the offenses charged is new to military criminal law, and also because we have interpreted Article 51 of the Code, 50 USC § 626, requiring instructions, to be a fundamental right, inherent in military due process, that must be fully complied with in every case, we have been reluctant to resort to the doctrine of waiver in relation to inadequate or erroneous instructions. However, we have noted in previous opinions that defense .counsel cannot, at the trial, assume that he has no responsibility whatsoever for protecting the interests of the accused and insuring the fair and orderly administration of justice by raising appropriate objections to improper procedures. In United States v. Masusock, (No. 15), 1 CMR 32, decided November 9, 1951, we said that to continually countenance failure of defense counsel to meet his responsibilities and obligations Would “result in an inefficient appellate system, interminable delays in the final disposition of cases, and careless trial representation.” In United States v. Russell L. Williams, (No. 133), 2 CMR 92, decided February 21, 1952, we stated as follows:
“. . . where a law officer fails to instruct properly without objection by defense counsel such counsel may well be proceeding at his peril in view of the further statutory provision that a finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially affects the substantial rights of the accused. It is entirely conceivable that the instructions of a law officer in a particular case may not be entirely correct, but at the same time the showing of record may be such, that regardless of the error, there could be no substantial prejudice to the accused. For that reason we cannot emphasize too strongly the necessity of objection at the proper time. . . .”
We fully recognize that there are differences between military and civilian criminal trials which militate against applying in the military sphere any strict waiver rule such as is enforced in the majority of American jurisdictions. Also because of these differences, we feel that even Federal decisions on the effect of failure to object to erroneous instructions, while persuasive, are not and cannot be binding upon this Court. Cf. United States v. Manton, 107 F2d 834 (CA2d Cir); Johnson v. United States, 318 US 189, 87 L ed 704, 63 S Ct 549. Complete, correct instructions on the elements of the offenses charged are a fundamental and vital right, absolutely necessary to the fair dispensation of justice in court-martial trials. However, we are not willing to see court-martial trials become a game where the sly defense counsel can acquiesce in erroneous instructions merely to build a record for obtaining reversal on appeal. Defense counsel does justice neither to the accused nor to his duty as an officer of the court when he relies principally on error and appellate review to protect his client.
For the reasons set out above, we are disposed to hold that where defense clearly and unequivocally assents to minimal instructions, he will not be heard thereafter to claim error in relation to those instructions. We must make it clear, however, that this doctrine is and must be limited in view of the fundamental nature of the right under consideration. We are not to be understood as saying that mere failure to object will constitute a waiver to improper instructions. Nor do we here decide that a complete failure to instruct could be waived by defense. In [443]*443this case, the elements of the offense were read by defense counsel. The law officer personally approved and adopted the language of the Manual as read to the court by defense counsel, personally stated the elements in part, and then asked defense if he was satisfied with the instructions.
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
Despite his plea of not guilty, appellant was convicted by general court-martial, convened at Wiesbaden, Germany, under three specifications alleging offenses in violation of Article of War 94, 10 USC § 1566, and sentenced to receive a bad-conduct discharge; to be confined at hard labor for twelve months, and to forfeit $50.00 per month for twelve months. Apart from suspension by the convening authority of the execution of the punitive discharge, the findings and sentence have been approved by the convening authority and affirmed by a board of review. Although the offenses charged occurred before May 31, 1951, the trial was held after that date, and is to be dealt with according to the procedural provisions of the Uniform Code of Military Justice, 50 USC §§ 551-736, and the Manual for Courts-Martial, United States, 1951.
In substance, the first specification alleged larceny, on or about March 19, 1951, of approximately 300 gallons of gasoline, property of the United States. The second charged a further larceny, on or about March 28, 1951, of approximately 400 gallons of gasoline, property of the United States. And the third charged wrongful sale, on or about March 20, 1951, of approximately 300 gallons of gasoline, property of the United States. Further facts are unnecessary to a proper understanding and consideration of the question presented.
Appellant assigns as error the failure of the law officer personally and directly to instruct members of the court-martial on the elements of larceny, the offense laid in Specifications 1 and 2. No objection is made to the law officer’s instructions concerning the wrongful sale alleged in Specification 3. The basis for this assignment of error is as follows.
During the course of his closing argument, defense counsel spelled out in detail the constituent elements of larceny, observing as he did so that he was “sure that the law officer will do it at .the proper time.” Upon conclusion of his argument the court recessed for lunch. When it reconvened an hour and ten minutes thereafter, the law officer proceeded to instruct the court as to the elements of the offenses charged. He stated, with respect to the larceny specifications, that the accused was charged with “the alleged stealing of certain specified amounts of gasoline of some value specified, furnished for and intended for the military service and property of the U.S.” Then he said:
. Now. I am going to eliminate any prolonged discussion as to the necessary elements of proof. Those portions of the Manual for Courts-Martial 1949 and 1951 as were read by defense counsel correctly state the elements of proof. If the court wishes them re-read, they can re-open the court and we will have them read, but I don’t seek to prolong this particular phase of the case. . .
[442]*442Thereupon the law officer referred the members of the court to specific paragraphs of the Manual for Courts-Martial, US Air Force, 1949.
After completing his instructions, the law officer asked whether either counsel had “any further requests or desires.” Trial counsel said: “The prosecution has none”; and defense counsel replied: “The law officer has adequately covered the instructions in the case.”
It is our conclusion that defense counsel below, by expressly and unequivocally acquiescing in the law officer’s instructions, has waived any right to now claim prejudicial error based on deficiencies in those instructions.
In view of the fact that the requirement of instructions on the elements of the offenses charged is new to military criminal law, and also because we have interpreted Article 51 of the Code, 50 USC § 626, requiring instructions, to be a fundamental right, inherent in military due process, that must be fully complied with in every case, we have been reluctant to resort to the doctrine of waiver in relation to inadequate or erroneous instructions. However, we have noted in previous opinions that defense .counsel cannot, at the trial, assume that he has no responsibility whatsoever for protecting the interests of the accused and insuring the fair and orderly administration of justice by raising appropriate objections to improper procedures. In United States v. Masusock, (No. 15), 1 CMR 32, decided November 9, 1951, we said that to continually countenance failure of defense counsel to meet his responsibilities and obligations Would “result in an inefficient appellate system, interminable delays in the final disposition of cases, and careless trial representation.” In United States v. Russell L. Williams, (No. 133), 2 CMR 92, decided February 21, 1952, we stated as follows:
“. . . where a law officer fails to instruct properly without objection by defense counsel such counsel may well be proceeding at his peril in view of the further statutory provision that a finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially affects the substantial rights of the accused. It is entirely conceivable that the instructions of a law officer in a particular case may not be entirely correct, but at the same time the showing of record may be such, that regardless of the error, there could be no substantial prejudice to the accused. For that reason we cannot emphasize too strongly the necessity of objection at the proper time. . . .”
We fully recognize that there are differences between military and civilian criminal trials which militate against applying in the military sphere any strict waiver rule such as is enforced in the majority of American jurisdictions. Also because of these differences, we feel that even Federal decisions on the effect of failure to object to erroneous instructions, while persuasive, are not and cannot be binding upon this Court. Cf. United States v. Manton, 107 F2d 834 (CA2d Cir); Johnson v. United States, 318 US 189, 87 L ed 704, 63 S Ct 549. Complete, correct instructions on the elements of the offenses charged are a fundamental and vital right, absolutely necessary to the fair dispensation of justice in court-martial trials. However, we are not willing to see court-martial trials become a game where the sly defense counsel can acquiesce in erroneous instructions merely to build a record for obtaining reversal on appeal. Defense counsel does justice neither to the accused nor to his duty as an officer of the court when he relies principally on error and appellate review to protect his client.
For the reasons set out above, we are disposed to hold that where defense clearly and unequivocally assents to minimal instructions, he will not be heard thereafter to claim error in relation to those instructions. We must make it clear, however, that this doctrine is and must be limited in view of the fundamental nature of the right under consideration. We are not to be understood as saying that mere failure to object will constitute a waiver to improper instructions. Nor do we here decide that a complete failure to instruct could be waived by defense. In [443]*443this case, the elements of the offense were read by defense counsel. The law officer personally approved and adopted the language of the Manual as read to the court by defense counsel, personally stated the elements in part, and then asked defense if he was satisfied with the instructions. Defense replied, as already noted, that “The law officer has adequately covered the instructions in the case.” Under these circumstances, we are constrained to hold that defense affirmatively and expressly assented to and adopted the instructions given by the law officer, and cannot now claim error based on those instructions.
It is a fundamental concept that guilt or innocence should be determined in the trial forum. Implicit in our system is the theory that, if a trial is fairly conducted in compliance with the rules of evidence and with all procedural requirements, the guilty will be convicted and the innocent will go free. Our ultimate aim is to improve, so far as possible, the trial of cases in military courts, in accordance with the policies expressed by Congress in the Uniform Code of Military Justice, supra. This aim cannot be achieved until those primarily connected with the trial — law officer, trial counsel, and defense counsel — perform their duties, competently, intelligently, and zealously. It is particularly a duty of the defense counsel to see that the theory or theories of the case most favorable to his client are adequately presented to the court. Not only must he be prepared in advance to argue for the submission of a proper framework of law to the court members, he must, as well, be prepared to submit proposed instructions to which the defense view of the evidence can be fitted. In the long run, he will do more to advance the interests of his client by submitting and arguing for proper and complete instructions than he will by sitting idly, letting the law officer’s instructions pass as a formality, and then relying on appellate tribunals to correct any errors that may have crept in.
This disposes of the sole issue present in this case. The decision of the board of review is affirmed.