
    UNITED STATES, Appellee v JOSEPH A. SMITH, Airman Second Class, U. S. Air Force, Appellant
    10 USCMA 549, 28 CMR 115
    No. 12,915
    Decided July 24, 1959
    
      Lieutenant Colonel Robert O. Rollman and Captain John H. Leonard were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Robert W. Michels, Lieutenant Colonel Francis R. Coogan, and Major Timothy G. O’Shea were on the brief for Appellee, United States.
   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.

FERGUSON, Judge

(dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Simpson, 10 USCMA 543, 28 CMR 109, decided this day.  