United States v. Smith

10 C.M.A. 549, 10 USCMA 549, 28 C.M.R. 115, 1959 CMA LEXIS 257, 1959 WL 3417

Opinions

Opinion of the Court

GEORGE W. LatimeR, Judge:

A special court-martial convicted accused of assault with a means likely to produce grievous bodily harm, and being drunk in quarters, violations, respectively, of Articles 128 and 134, Uniform Code of Military Justice, 10 USC §§ 928 and 934. Intermediate authorities having affirmed the findings, we granted review limited solely to the propriety of an instruction given to the court members by the president.

Accused’s contention is directed against the same instruction which we considered in United States v Simpson, 10 USCMA 543, 28 CMR 109; United States v Blackwell, 10 USCMA 550, 28 CMR 116; United States v Davault, 10 USCMA 551, 28 CMR 117; United States v Tisdall, 10 USCMA 553, 28 CMR 119; and United States v Shomler, 10 USCMA 555, 28 CMR 121, all decided this date. As in those cases, we conclude that when the instructions are considered as a whole, there is no risk that the court-martial used an improper measuring rod in its deliberations. Accordingly, we hold that accused was not prejudiced by the president’s instruction.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.