
    UNITED STATES, Appellee v LAWRENCE L. SHOMLER, Staff Sergeant, U. S. Air Force, Appellant
    10 USCMA 555, 28 CMR 121
    
      No. 12,997
    Decided July 24, 1959
    
      Lieutenant Colonel James L. Kilgore and Captain Norman J. Nelson were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Robert W. Michels and Lieutenant Colonel Francis R. Coogan were on the brief for Appellee, United States.
   Opinion of the Court

George W. Latimer, Judge:

Accused was convicted for absence without leave and wrongful appropriation, violations of Articles 86 and 121, Uniform Code of Military Justice, 10 USC §§ 886 and 921, respectively. Intermediate authorities have approved the findings and sentence, and we granted accused’s petition for review on a single instructional issue.

In the course of his charge to the members of the court-martial, the law officer instructed inter alia:

“The rule as to reasonable doubt extends to every element of the offense. It is not necessary that each particular fact advanced by the prosecution be proved beyond a reasonable doubt; it is sufficient to warrant conviction if, on the whole evidence, the court is satisfied beyond a reasonable doubt that the accused is guilty. Prima facie proof of an essential element of an offense does not preclude the existence of a reasonable doubt with respect to that element. The court may decide, for instance, that the prima facie evidence presented does not outweigh the presumption of innocence. In law, prima facie evidence of fact is sufficient to establish the fact, unless rebutted.”

This is the same instruction with which we were concerned in United States v Simpson, 10 USCMA 543, 28 CMR 109, this day decided. See also United States v Smith, 10 USCMA 549, 28 CMR 115; 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. As we indicated in the first mentioned case, it was error for the law officer to so instruct. However, we conclude, as we did there, that accused was not prejudiced. The law officer instructed in accordance with Article 51(c) of the Code, 10 USC § 851, and he repeatedly charged that unless the court members were convinced accused’s guilt had been proved beyond a reasonable doubt, they must acquit him; that the rule extended to every element of the offense; that reasonable doubt could arise either from the evidence or the lack thereof; and he properly instructed on the burden of proof and presumption of innocence. Taken by their four corners, there can be no doubt but that the court members were apprised of the correct yardstick for use in their deliberations.

The decision of the board of review is, therefore, 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.  