
    UNITED STATES, Appellee v BERNARD I. SCHWARTZ, Second Lieutenant, U. S. Army, Appellant
    8 USCMA 731, 25 CMR 235
    No. 11,019
    Decided February 21, 1958
    
      D. George Paston, Esquire, and First Lieutenant James G. Garner were on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee and First Lieutenant Jon R. Waltz were on the brief for Appellee, United States.
   Opinion of the Court

HomeR FERGUSON, Judge:

We granted the accused’s petition for review on the single issue of whether the law officer's reference to paragraph 76 of the Manual for Courts-Martial, United States, 1951, on the court-martial’s sentence deliberations was prejudicial. The accused had been found guilty of conspiracy to commit larceny, and larceny, in violation of Articles 81 and 121 of the Uniform Code of Military Justice, 10 USC §§ 881 and 921, respectively. While instructing the court on sentence considerations, the law officer suggested that those members of the court “who are unfamiliar with the provisions of paragraph 76 of the Manual, appearing on page 121 of the Manual, briefly examine the provisions of paragraph 76 before you begin you deliberations on this case.” A similar issue presented in United States v Keyes, 8 USCMA 730, 25 CMR 234, was resolved in favor of the accused. See also United States v Starnes, 8 USCMA 427, 24 CMR 237; United States v Rinehart, 8 USCMA 402, 24 CMR 212.

For the reasons stated in those decisions, the accused’s sentence must be set aside. A rehearing on the sentence is ordered.

Chief Judge Quinn concurs.

LATIMER, Judge

(dissenting):

I dissent. See my separate opinion in United States v Rinehart, 8 USCMA 402, 24 CMR 212.  