
    UNITED STATES, Appellee v RALPH R. JORDAN, Master Sergeant, U. S. Army, Appellant
    14 USCMA 393, 34 CMR 173
    No. 17,285
    February 14, 1964
    
      Colonel Jose-ph L. Chalk, Captain Daniel II. Benson, Captain Joseph M. Livermore, Captain Gary G. Keltner, and First Lieutenant Beverly B. Bates were on the brief for Appellant, Accused.
    
      Colonel Bruce C. Babbitt and First Lieutenant John C. Cortesio, Jr., were on the brief for Appellee, United States.
   Opinion of the Court

Per Curiam:

We granted accused’s petition for review of his conviction of voluntary manslaughter and approved sentence to confinement at hard labor for twelve months, forfeitures for a like period, and reduction to the lowest enlisted grade. The issue involved the propriety of the law officer’s instruction to the court concerning the effect of immediate detection and certain apprehension in determining whether accused could adhere to the right. The United States and the accused have filed a joint pleading in which it is admitted that the instruction is incorrect and reversal of the decision of the board of review is prayed. See United States v Jensen, 14 USCMA 353, 34 CMR 133.

Where the evidence places in issue an accused’s ability to adhere to the right, an instruction according controlling effect to the concept herein 'discussed is prejudicially erroneous. United States v Jensen, supra. Accordingly, the prayer of the joint pleading is well taken.

The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army. A rehearing may be ordered.  