informed that the above principle is applicable to an accused and this requires that he be specifically mentioned. However, he ought not to be singled out by comments which indicate that because he has an interest in the outcome of a case the court-martial member should disregard his testimony. Neither should the law officer submit an instruction which is so one-sided against him that it destroys the privilege of being a witness in his own behalf The most appropriate way for the law officer to proceed is to give a general instruction on the effect of any interest or bias on the testimony of a witness and then inform the court-martial that the rule as announced applies with equal force to the accused. (Citing Allison v. U. S., 160 US 203, 40 L ed 395, 16 S Ct 252; Hickory v. U. S., 160 US 408, 40 L ed 474, 16 S Ct 327.) United States v. Nash (No. 5474), 5 USCMA 550, 18 CMR 174. [See 53 Am Jur, Trial §§ 781, 792.] Failure to instruct on adverse inference resulting from a failure to call a witness, see ACM 7761, Schreiber, WITN § 81.3. § 57.21. Character or reputation of accused. The accused was convicted of conspiracy to wrongfully dispose of, wrongful disposition of, and larceny of government property. On cross-examination an officer testifying for the prosecution stated that the accused had worked under him for over a year and that he had every confidence in the honesty and reliability of the accused. He stated he had great respect for the accused, both as a man and as an employee prior to this incident. The defense requested an instruction that the good character of the accused is a fact making strongly for the inference that he is innocent and this is not to be rejected or disregarded even when the evidence against him is direct and circumstances may be such that an established reputation would create a reasonable doubt and require acquittal even though, aside from such reputation, the evidence might be convincing and justify conviction. The law officer refused to give the instruction, expressing the view that no evidence had been presented by the defense as to the good character of the accused. At the time of the alleged offenses the accused was a civilian employee of the Navy. However, he was also a retired Navy man who had served twenty-three years in the Navy and had never before been charged with a crime. Held that: - the proposed instruction was sufficient to put the law officer on notice that some instruction on the issue was deemed essential properly to advise the court-martial. (Citing U. S. v. Burden (No. 1038), 2 USCMA 547, 10 CMR 45; U. S. v. Phillips (No. 1244), 3 USCMA 137, 11 CMR 137.) - the officer's testimony was sufficient to place the character of the accused in issue and require instructions on the effect of character evidence. - in the federal courts a witness may not testify as to his personal opinion concerning a specific trait of a defendant's character. However, such is not the rule in military law. Accordingly, the officer's testimony was not inadmissible on the ground that it was his personal opinion of the accused. (Citing Michelson v. U. S., 335 US 469, 93 L ed 168, 69 S Ct 213; U. S. v. Haimson (No. 4549), 5 USCMA 208, 17 CMR 208; MCM, 1951, par 138f(1), p. 243.) the law officer's belief that an accused is not entitled to an instruction on character evidence unless such evidence is adduced from defense witnesses is erroneous. An accused may rely on favorable evidence to raise an issue even though it is presented through government witnesses. (Citing U. S. v. Johnson (No. 768), 3 USCMA 209, 11 CMR 209; U. S. v. Lee (No. 819), 3 USCMA 501, 13 CMR 57; Tatum v. U. S., 190 F2d 612; U. S. v. Phillips, 217 F2d 435.) - while civilian courts have held that an honorable discharge from one of the services is not admissible as evidence of good character, the rule in the military is otherwise. Accordingly, the accused's honorable discharge was another source of favorable testimony sufficient to put his character in issue so as to require instructions on the effect of character evidence. (Citing Hodge v. U. S., 13 F2d 596, 598; MCM, 1951, par 138f (2), p 243; Wigmore, Evidence, 3rd ed, sec 59.) - the fact that out of a total of twenty-seven witnesses only one was interrogated on the subject of the accused's character does not indicate that his character was not in issue. The question of whether a specific issue is raised does not depend primarily upon the quantity of evidence presented, but upon its quality and relevancy. Character evidence is sufficient to raise an issue if a reasonable court-martial member could believe it and if, once believed, it casts some doubt on the guilt of the accused. the evidence was such that the court-martial's decision had to be based primarily on whether the accused or an alleged coconspirator who testified against him was to be believed. Under such circumstances the failure to instruct on the effect of the character testimony was prejudicial error. United States v. Gag non (No. 5557), 5 USCMA 619, 18 CMR 243. § 59. Restricting or Excluding Consideration of Evidence § 59.1. Generally. On a trial for desertion the defense objected to certain prosecution exhibits relating to the commencement and termination of the accused's absence which used the word "deserter". The law officer overruled the objection but instructed the court that mere fact that the word "deserter" was used in the government's exhibits was not final with regard to the fact that the accused was a deserter and that it was for the court to make an independent determination on whether the accused was a deserter. Again in his final instructions the law officer referred to the prosecution exhibits and stated that they were "not complete evidence of desertion," that they were only evidence of the absence without proper authority and attendant facts and circumstances required to be recorded and that it was still necessary for the prosecution to prove the other elements of the offense of desertion. Held: The law officer's first instruction to the effect that the use of the word "deserter" was not final was not improper on the ground that it conveyed to the court the idea that the use of the word carried some weight. Nor were the final instructions stating that the use of the word was not complete evidence of desertion improper. The final instruction was accurate, understandable and unequivocal statement of the applicable law. Clearly the entries whether with or without the word "deserter" were not complete evidence of desertion for the court was duty bound to determine if other important elements were proved. NCM 373, Tainpeah (1954) 18 CMR 382. In an out-of-court hearing the defense counsel orally requested five instructions one of which covered limiting the purpose of evidence of other offenses committed by the accused. After giving all of the usual instructions the law officer gave three of the instructions requested by the defense. At the conclusion of these instructions the defense counsel pointed out that a fourth instruction had not been given and the law officer acknowledged that due to forgetfulness he had omitted it. He then instructed the court on the subject as requested. The requested instruction on the limited purpose of evidence of other offenses was not given and the defense counsel did not remind the law officer of this request. When the law officer asked if there were any further requests the defense replied in the negative. Held: The instruction regarding the limited purpose for which evidence of other offenses should be considered affirmatively waived. It is clear that the failure to give the requested instruction was due to an oversight on the part of the law officer. The law officer gave four of the five requested instructions and when he inquired if he had omitted any and the defense counsel stated he had no further requests he indicated his satisfaction with the instructions. Furthermore, even absent a waiver, the failure to give the requested instruction was not prejudicial under the circumstances of the case. (Citing U. S. v. Mundy (No. 1447), 2 USCMA 500, 9 CMR 130; U. S. v. Johnson (No. 3690), 3 USCMA 706, 14 CMR 124; 3 Am Jur, Appeal and Error, §§ 871 et seq and 1128; U. S. v. Allumns (No. 5431), 5 USCMA 435, 18 CMR 59; Doremus v. U. S., 262 F 849, 13 ALR 853, cert den 253 US 487, 64 L ed 1026, 40 S Ct 483 and other cases.) ACM 9603, Cole, Itskowitz & Ehrlich (1955) 18 CMR 771. The credibility of an accused who takes the stand as a witness must be subjected to the same tests as that of any other witness. Accordingly, although, after evidence is heard with respect to an accused's prior offenses, the court may be prone to find him guilty of the charge under which he is being tried for the reason that he has a bad record, the only remedy lies in an instruction by the law officer to the effect that evidence of prior offenses on the part of an accused is limited to an impeachment purpose, and can in no wise be regarded as evidence of guilt. The law officer may also wish to inform the court, whether in respect of an accused, or any other witness who has been impeached by evidence of prior misconduct, that a showing of past offenses does not necessarily and of itself require the conclusion that the witness' testimony before the court is false. (Citing MCM, 1951, par 149b (1); U. S. v. Webb (No. 370), 1 USCMA 219, 2 CMR 125.) United States v. Moore (No. 5026), 5 USCMA 687, 18 CMR 311. [See 58 Am Jur, Witnesses § 685.] Admission of deposition in which certified counsel played no part as prejudicial notwithstanding withdrawal and instructions to disregard, see ACM 9347, Kennedy, DEPOS § 9.1. Instructions on consideration of evidence of specific acts of misconduct admissible to show plan, design or scheme, see United States v. Haimson, CONDUCT, ETC § 50.7. Finding of guilty of two lesser included offenses where only single offense is charged as permissible, under certain conditions, see CM 373066, Calhoun and Martinez, ROB § 9.1. Permissibility of finding accused guilty of two lesser offenses included in offense charged even though not separately set out, see United States v. Calhoun, ROBBERY § 9.5. § 65. Deliberation and Voting § 65.5. Presence of law officer or others. After the court closed to deliberate on the findings but before the court reached its findings, the law officer and reporter were called into the closed session and the president stated that the court would like the advice of the law officer as to the wording of a lesser included offense. The law officer thereupon informed the court as to the form of a finding of guilty of a lesser included offense of wrongful appropriation (the charge was larceny). A member of the court asked if it could "also find another Article" and the law officer replied "not in this particular case." Held: The conference between the law officer and the court, occurring before the finding had been made, was in violation of UCMJ, Arts 39 and 26(b), and the law officer's action constituted participation in the deliberations of the court so as to require disaffirmance of the findings and sentence. (Citing U. S. v. Taborn (No. 1282), 3 USCMA 61, 11 CMR 61, and other authorities.) ACM 8967, Moe (1954) 16 CMR 829. The accused was acquitted of one offense and was convicted, upon pleas of guilty, of three other offenses. After the court had closed for deliberations the law officer was requested to appear before it and for a period of twenty minutes he answered questions put to him by the court and discussed the evidence with the court members, assuming at times a clearly partisan attitude apparently op posed to the interests of the accused. The entire discussion related to the offense of which the accused was subsequently acquitted. Held: The law officer's participation in the deliberations of the court constituted a flagrant violation of the provisions of UCMJ, Arts 26b and 39 and an even more flagrant disregard of the decisions of the United States Court of Military Appeals bearing on this matter. (Citing U. S. v. Keith (No. 503), 1 USCMA 493, 4 CMR 85; U. S. v. McConnell (No. 596), 1 USCMA 508, 4 CMR 100; U. S. v. Smith (No. 512), 1 USCMA 531, 4 CMR 123; U. S. v. Cadena (No. 713), 1 USCMA 534, 4 CMR 126; U. S. v. Woods & Duffer (No. 1023), 2 USCMA 203, 8 CMR 3; U. S. v. Jester (No. 1655), 2 USCMA 280, 8 CMR 80.) The doctrine of general prejudice is applied where it is necessary to firmly establish in the military the modern concepts of justice which Congress has seen fit to enact in an effort to fully protect the rights of accused persons in the armed forces and to purge records of proceedings of criminal trials in the military from hints of unfairness, persecution and autocratic expediency. When an overwhelmingly important mandate of Congress has been violated there should not be a search for specific prejudice until it has been determined that the particular mandate or norm involved has been firmly established in military service and that the violation involved is an isolated violation. (Citing U. S. v. Keith (No. 503), 1 USCMA 493, 4 CMR 85; U. S. v. Berry (No. 69), 1 USCMA 235, 2 CMR 141; U. S. v. Woods & Duffer (No. 1023), 2 USCMA 203, 8 CMR 3.) The principle of nonparticipation by the law officer in the deliberations of the court has become so well established in the service that the doctrine of general prejudice should no longer be invoked and the doctrine of specific prejudice should be applied. In this case, since the conference related to the offense of which the accused was acquitted, the only possibility of prejudice would be at the sentencing stage and any prejudice in this regard can be purged by approval of a sentence which under all the circumstances is legal, appropriate and not excessive. NCM 358, Galvin (1954) 17 CMR 497. Effect of unrecorded conference between president and law officer which might have concerned either findings or sentence, see ACM 9101, Myles, SENT & PUN § 5.5. $ 65.7. Voting. After the court-martial had closed to deliberate and vote on the findings and had been in closed session for some time, it reopened to request further instructions. A court member inquired as to what was meant by two-thirds majority. The law officer instructed on the meaning of a two-thirds majority and the court member then asked him if the two-thirds majority was to be reached on one ballot. The law officer replied that it was within the discretion of the president of the court with respect to discussion and whether there should be one ballot or more than one ballot. Held: Under the authority of par 74d (3) MCM, 1951, there may be more than one ballot. However, the law officer's instruction that it was discretionary with the president of the court-martial whether there should be more than one |