UNITED STATES, Appellee v. BENJAMIN NUSMAN, Private First Class, U. S. Army, Appellant

UNITED STATES, Appellee v BENJAMIN NUSMAN, Private First Class, U. S. Army, Appellant 15 USCMA 432, 35 CMR 404 No. 18,411 June 18, 1965 Colonel Joseph L. Chalk, Lieutenant Colonel Jacob Hagopian, and Captain Frank J. Martin, Jr., were on the brief for Appellant, Accused. Colonel Edwin G. Schuck, Lieutenant Colonel Francis M. Cooper, and Captain John C. Cortesio, Jr., were on the brief for Appellee, United States, [MAJORITY — PER CURIAM:] Opinion of the Court PER CURIAM: In this case, as a part of his instructions to the court-martial prior to closed deliberations on the findings, the law officer advised its members: “Each member should listen, with a disposition to be convinced, to the opinions and arguments of the others. It is not intended that a member should go to the deliberation room with a fixed determination that the verdict shall represent his opinion of the case at that moment. Nor is it intended that he should close his ears and eyes to the arguments of other members who are equally honest and intelligent with himself. But you are not to yield your judgment simply because you may be outnumbered or outweighed.” In United States v Gilmore, 15 USCMA 428, 85 CMR 400, we held an identical instruction to be free from error. See also United States v Jackson, 15 USCMA 431, 35 CMR 403. We pointed out that the advice, apparently based in part upon Allen v United States, 164 US 492, 41 L ed 528, 17 S Ct 154 (1896), has no tendency to coerce the fact finders into concluding accused was guilty, but, to the contrary, “only invites honest discussion of differing views on the guilt or innocence of the accused.” United States v Gilmore, supra. As in Gilmore, therefore, we conclude that the instruction was not erroneous. The decision of the board of review is affirmed.