United States v. Derosier

Opinion of the Court

The accused was convicted by general court-martial of unlawful entry with intent to commit larceny in violation of Article 130 of the Uniform Code of Military Justice, 50 USC § 724. He was sentenced . to dishonorable discharge, total forfeiture of pay and confinement for two years. The convening authority and the board of review have upheld the findings and sentence. We granted accused’s petition for review limited to the issue of whether pevpr-sible error was committed by a conference between the law officer and the court outside the presence of accused and his counsel.

United States v. Miskinis and Pontillo (Nos. 1535, 1536, 1579), 8 CMR 73, decided this date, is dispositive of the issue in this case. The conference occurred during the closed session of the court for deliberation on the sentence and after the court had reached a decision as to the sentence. The law officer was requested to assist in put*283ting the sentence in proper form. He did so, and departed. Although the procedure constituted error, it did not prejudice the accused and does not require invocation of the doctrine of general prejudice. United States v. Mis-kinis and Pontillo, supra. The decision of the board of review is affirmed.

(concurring in the result) :

I concur in the result. My reasons for not concurring outright are set forth in United States v. Woods and Duffer (No. 1023), 8 CMR 3, decided February 19, 1953.