
    UNITED STATES, Appellee v. PATRICK J. COUGHLIN, Private E-1, U. S. Army, Appellant
    4 USCMA 175, 15 CMR 175
    
      No. 2985
    Decided April 16, 1954
    Clair 0. Harding, Esq., Lt Col James C. Hamilton, U. S. Army, and 1st Lt Jack W. Tucker, U. S. Army, for Appellant.
    Lt Col William R. Ward, U. S. Army, 1st Lt Donald M. Sukloff, U. S. Army, 1st Lt Roderick V. Brown, U. S. Army, and 1st Lt Ezra B. Jones, Jr., U. S. Army, for Appellee.
   Opinion of the Court

GEORGE W. LatimeR, Judge:

This cause is before us on petition for grant of review, and involves the same issue as that presented in the case of United States v. McVey, 4 USCMA 167, 15 CMR 167.

The accused, Coughlin, and the accused, McVey, were tried as joint accused and the evidence discloses that they were joint actors in perpetrating the offenses of robbery and assault with a dangerous weapon. The same maximum sentence instruction was given as to each accused. However, each accused petitioned separately for review, which we granted.

For the reasons set forth in the Mc-Vey case, supra, we hold that the offense of aggravated assault was the lesser included offense of robbery in this case. Therefore, the law officer’s instruction concerning the maximum imposable sentence was erroneous. Although the period of confinement adjudged was less than the maximum limit set by the law officer, and less than the maximum sentence which legally could have been imposed, we do not know what period of confinement would have been imposed by the court, and affirmed by a board of review, had a proper instruction been given on the maximum sentence. For that reason, the law officer’s error was prejudicial to the accused.

The decision of the board of review is reversed. The case is returned to The Judge Advocate General of the Army for reference to a board of review for action not inconsistent with this opinion.

Chief Judge Quinn concurs.

BROSMAN, Judge

(concurring in the result) :

I must conclude that in this case we have reached the result demanded by the Manual. See my separate opinion in the McVey case cited by the majority.  