
    UNITED STATES, Appellee v HOWARD L. MOON, Sergeant, U. S. Marine Corps, Appellant
    13 USCMA 444, 32 CMR 444
    No. 16,207
    January 25, 1963
    
      
      Lieutenant Colonel William H. Bennison argued the cause for Appellant, Accused.
    
      Major Daniel F. McConnell argued the cause for Appellee, United States.
   Opinion of the Court

FERGUSON, Judge:

A general court-martial convened by the Commandant, Marine Corps Schools, found the accused guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and sentenced him to bad-conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for two years, and reduction to the grade of private. The convening authority reduced the confinement involved to a period of one year, and the forfeitures to a loss of $45.00 per month for a like period. Otherwise, he approved the sentence. The board of review affirmed. We granted accused’s petition for review on the issue whether the law officer’s instructions concerning a purported denial of counsel during his interrogation by criminal investigators shifted the burden of proof by requiring an affirmative finding that “accused requested but was denied counsel” in order to reject his confession.

Our scrutiny of the record indicates existence of a substantial question for the court members concerning whether accused was in fact denied the right to consult with counsel during his interrogation. United States v Gunnels, 8 USCMA 130, 23 CMR 354; United States v Rose, 8 USCMA 441, 24 CMR 251; United States v Brown, 13 USCMA 14, 32 CMR 14; United States v Powell, 13 USCMA 364, 32 CMR 364.

The instructions given by the law officer with respect to this issue are, in all material particulars, identical to those condemned by this Court in United States v Odenweller, 13 USCMA 71, 32 CMR 71. For the reasons set forth in that case, prejudicial error must also be found here.

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

Judge Kilday concurs.

Quinn, Chief Judge

(dissenting):

I dissent for the reasons set out in my dissent in United States v Odenweller, 13 USCMA 71, 32 CMR 71.  