
    UNITED STATES, Appellee v WALTER W. WELCH, Private, U. S. Marine Corps, Appellant
    8 USCMA 315, 24 CMR 125
    No. 10,479
    Decided October 18, 1957
    
      Commander Charles Timblin, USN, was on the brief for Appellant, Accused.
    
      First Lieutenant Daniel P. Reardon, Jr., USMCR, was on the brief for Appellee, United States.
   Opinion of the Court

Robert E. Quinn, Chief Judge:

At the trial, defense counsel objected to the admission of a pretrial statement by the accused on the ground that it was obtained in violation of Article 31, Uniform Code of Military Justice, 10 USC § 831. The accused testified in support of the objection. The president of the court overruled the objection and admitted the statement but he did not at any time instruct the court members on their right to consider the question of voluntariness in their deliberations on the accused’s guilt or innocence. Under the circumstances, the omission constitutes prejudicial error. United States v Yearty, 8 USCMA 191, 23 CMR 415.

The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing may be ordered.

Judge Ferguson concurs.

Latimer, Judge

(dissenting):

1 dissent.

The mere mention by the accused of the term “involuntary confession” should not be used as a magic password which flings open the door to an appellate reversal. In the instant case, the record indicates that the issue of volun-tariness was not reasonably raised and, therefore, I do not believe that the law officer was required to instruct upon, that question. Furthermore, my evaluation of the record leads me to conclude that, aliunde the confession, the court-martial received compelling evidence of the accused’s guilt.

I would affirm the board of review.  