
    UNITED STATES, Appellee v MACK A. NAPIER, Recruit, U. S. Army, Appellant
    12 USCMA 552, 31 CMR 138
    No. 15,349
    November 24, 1961
    
      Lieutenant Colonel Ralph W. Wofford and Captain Vernon C. Maulson were on the brief for Appellant, Accused.
    
      Major Francis M. Cooper and Captain Alvin B. Fox were on the brief for Appellee, United States.
   Opinion of the Court

Quinn, Chief Judge:

The question raised by the accused on this appeal is whether he was prejudiced by the law officer’s allusion to instructions he gave “on several recent occasions” regarding “matters that are appropriate in arriving at a just sentence.” The Government contends that the procedure followed by the law officer was “favored” by the accused and, consequently, prevents him from claiming on this appeal that his rights were prejudiced. United States v Mullican, 7 USCMA 208, 21 CMR 334. Whether there was a calculated election of a specific procedure by the accused need not give us pause. Assuming the instruction amounted to an instruction by reference to the other cases, as contended by the accused, it falls squarely within our holding in United States v Forwerck, 12 USCMA 540, 31 CMR 126. For the reasons set out in our opinion in that case, the decision of the board of review is affirmed.

Judge Kilday concurs.

FERGUSON, Judge

(dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Forwerck, 12 USCMA 540, 31 CMR 126, this day decided.  