¶1Opinion of the Court
¶2Despite his plea of not guilty, appellant was convicted by general court-martial, convened at Wiesbaden, Germany, under three specifications alleging offenses in violation of Article of War 94, 10 USC § 1566, and sentenced to receive a bad-conduct discharge; to be confined at hard labor for twelve months, and to forfeit $50.00 per month for twelve months. Apart from suspension by the convening authority of the execution of the punitive discharge, the findings and sentence have been approved by the convening authority and affirmed by a board of review. Although the offenses charged occurred before May 31, 1951, the trial was held after that date, and is to be dealt with according to the procedural provisions of the Uniform Code of Military Justice, 50 USC §§ 551-736, and the Manual for Courts-Martial, United States, 1951.
¶3In substance, the first specification alleged larceny, on or about March 19, 1951, of approximately 300 gallons of gasoline, property of the United States. The second charged a further larceny, on or about March 28, 1951, of approximately 400 gallons of gasoline, property of the United States. And the third charged wrongful sale, on or about March 20, 1951, of approximately 300 gallons of gasoline, property of the United States. Further facts are unnecessary to a proper understanding and consideration of the question presented.
¶4Appellant assigns as error the failure of the law officer personally and directly to instruct members of the court-martial on the elements of larceny, the offense laid in Specifications 1 and 2. No objection is made to the law officer’s instructions concerning the wrongful sale alleged in Specification 3. The basis for this assignment of error is as follows.
¶5During the course of his closing argument, defense counsel spelled out in detail the constituent elements of larceny, observing as he did so that he was “sure that the law officer will do it at .the proper time.” Upon conclusion of his argument the court recessed for lunch. When it reconvened an hour and ten minutes thereafter, the law officer proceeded to instruct the court as to the elements of the offenses charged. He stated, with respect to the larceny specifications, that the accused was charged with “the alleged stealing of certain specified amounts of gasoline of some value specified, furnished for and intended for the military service and property of the U.S.” Then he said:
. Now. I am going to eliminate any prolonged discussion as to the necessary elements of proof. Those portions of the Manual for Courts-Martial 1949 and 1951 as were read by defense counsel correctly state the elements of proof. If the court wishes them re-read, they can re-open the court and we will have them read, but I don’t seek to prolong this particular phase of the case. . .
¶6*442Thereupon the law officer referred the members of the court to specific paragraphs of the Manual for Courts-Martial, US Air Force, 1949.
¶7After completing his instructions, the law officer asked whether either counsel had “any further requests or desires.” Trial counsel said: “The prosecution has none”; and defense counsel replied: “The law officer has adequately covered the instructions in the case.”
¶8It is our conclusion that defense counsel below, by expressly and unequivocally acquiescing in the law officer’s instructions, has waived any right to now claim prejudicial error based on deficiencies in those instructions.
¶9In view of the fact that the requirement of instructions on the elements of the offenses charged is new to military criminal law, and also because we have interpreted Article 51 of the Code, 50 USC § 626, requiring instructions, to be a fundamental right, inherent in military due process, that must be fully complied with in every case, we have been reluctant to resort to the doctrine of waiver in relation to inadequate or erroneous instructions. However, we have noted in previous opinions that defense .counsel cannot, at the trial, assume that he has no responsibility whatsoever for protecting the interests of the accused and insuring the fair and orderly administration of justice by raising appropriate objections to improper procedures. In United States v. Masusock, (No. 15), 1 CMR 32, decided November 9, 1951, we said that to continually countenance failure of defense counsel to meet his responsibilities and obligations Would “result in an inefficient appellate system, interminable delays in the final disposition of cases, and careless trial representation.” In United States v. Russell L. Williams, (No. 133), 2 CMR 92, decided February 21, 1952, we stated as follows:
“. . . where a law officer fails to instruct properly without objection by defense counsel such counsel may well be proceeding at his peril in view of the further statutory provision that a finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially affects the substantial rights of the accused. It is entirely conceivable that the instructions of a law officer in a particular case may not be entirely correct, but at the same time the showing of record may be such, that regardless of the error, there could be no substantial prejudice to the accused. For that reason we cannot emphasize too strongly the necessity of objection at the proper time. . . .”
¶10We fully recognize that there are differences between military and civilian criminal trials which militate against applying in the military sphere any strict waiver rule such as is enforced in the majority of American jurisdictions. Also because of these differences, we feel that even Federal decisions on the effect of failure to object to erroneous instructions, while persuasive, are not and cannot be binding upon this Court. Cf. United States v. Manton, 107 F2d 834 (CA2d Cir); Johnson v. United States, 318 US 189, 87 L ed 704, 63 S Ct 549. Complete, correct instructions on the elements of the offenses charged are a fundamental and vital right, absolutely necessary to the fair dispensation of justice in court-martial trials. However, we are not willing to see court-martial trials become a game where the sly defense counsel can acquiesce in erroneous instructions merely to build a record for obtaining reversal on appeal. Defense counsel does justice neither to the accused nor to his duty as an officer of the court when he relies principally on error and appellate review to protect his client.
¶11For the reasons set out above, we are disposed to hold that where defense clearly and unequivocally assents to minimal instructions, he will not be heard thereafter to claim error in relation to those instructions. We must make it clear, however, that this doctrine is and must be limited in view of the fundamental nature of the right under consideration. We are not to be understood as saying that mere failure to object will constitute a waiver to improper instructions. Nor do we here decide that a complete failure to instruct could be waived by defense. In *443this case, the elements of the offense were read by defense counsel. The law officer personally approved and adopted the language of the Manual as read to the court by defense counsel, personally stated the elements in part, and then asked defense if he was satisfied with the instructions. Defense replied, as already noted, that “The law officer has adequately covered the instructions in the case.” Under these circumstances, we are constrained to hold that defense affirmatively and expressly assented to and adopted the instructions given by the law officer, and cannot now claim error based on those instructions.
¶12It is a fundamental concept that guilt or innocence should be determined in the trial forum. Implicit in our system is the theory that, if a trial is fairly conducted in compliance with the rules of evidence and with all procedural requirements, the guilty will be convicted and the innocent will go free. Our ultimate aim is to improve, so far as possible, the trial of cases in military courts, in accordance with the policies expressed by Congress in the Uniform Code of Military Justice, supra. This aim cannot be achieved until those primarily connected with the trial — law officer, trial counsel, and defense counsel — perform their duties, competently, intelligently, and zealously. It is particularly a duty of the defense counsel to see that the theory or theories of the case most favorable to his client are adequately presented to the court. Not only must he be prepared in advance to argue for the submission of a proper framework of law to the court members, he must, as well, be prepared to submit proposed instructions to which the defense view of the evidence can be fitted. In the long run, he will do more to advance the interests of his client by submitting and arguing for proper and complete instructions than he will by sitting idly, letting the law officer’s instructions pass as a formality, and then relying on appellate tribunals to correct any errors that may have crept in.
¶13This disposes of the sole issue present in this case. The decision of the board of review is affirmed.
¶14(concurring) i
¶15I concur.
¶16In the case of United States v. Masusock, (No. 15), 1 CMR 32, decided by this Court November 9, 1951, we adopted the following principles of law announced in Smith v. United States, 173 F2d 181, 184 (CA 9th Cir):
“It is without question true that in a criminal case the ultimate issue is the guilt or innocence of the accused, to be determined by a fair trial and not the competence of counsel, but it cannot serve the purpose of justice to permit a defendant to prosecute one theory in the trial court and, finding it unsuccessful, not only to substitute another on appeal but to claim error arising out of that which he himself has invited. The admitted normal rule is that an appellate court will not consider matters which are alleged as error for the first time on appeal, and this is true of criminal as well as civil cases. However, an exception exists in criminal cases where the alleged error would result in a manifest miscarriage of justice, or would ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’ [citing United States v. Atkinson (1936) 297 US 157, 160.]”
¶17That case was decided early in the Court’s history and if it was good law then, it is good law now. Accordingly, if we follow that rule we need only test this case to determine whether the error, if any, was of such a substantial nature that failure to consider it would result in a miscarriage of justice or seriously affect the fairness or integrity of the trial proceedings.
¶18As I view the record a relatively unimportant and insignificant event in the trial of a law suit seems to have been magnified on appeal out of all proportion to its importance. To support this statement I recite briefly the facts and circumstances shown by the record. After the taking of evidence had been completed and the trial counsel had made his opening argument to the court, defense counsel, who, by the *444way, appears to have been well qualified and who performed a very excellent job in defending his client, presented his arguments to the court. I quote from his statement:
. . Now at this point I want to read to the court the essential elements of proof required for these offenses. I’m sure that the law officer will do it at the proper time, but I want to call it to the court’s attention. The essential elements of proof are in Manual for Courts-Martial, 1949 under 180g, page 240. Here are the essential elements which must be proved for the allegation of larceny— they are: ‘(a) the appropriation by the accused of the property as alleged; (b) that such property belonged to a certain other person named or described; (c) that such propei'ty was of the value alleged, or of some value; and (d) the facts and circumstances of the ease indicating that the appropriation was with the intent to deprive the owner permanently of his interest in the property or of its value or a part of its value.’ And then further- — going back to 181h which refers you to 180g for elements of proof — on page 252 it states a last elements of proof: ‘and that the property belonged to the United States and was furnished or intended for the military service thereof, as alleged’. . .
¶19The record shows that copies of the Manual had been furnished members of the court and obviously they could turn to the pages from which defense counsel was reading. No one took issue with the statements made by him and the reason for that is apparent. It is true that the law officer did not again read the elements from the Manual but I fail to understand why that is necessary or prejudicial. All the law officer needs to do is make certain the court accepts his definition of the crime and this is what he told the court:
. Going back to the offenses charged, the accused is charged with three offenses, two of which concern the alleged stealing of certain specified amounts of gasoline of some value specified, furnished for and intended for the military service and the property of the U. S. Now I am going to eliminate any prolonged discussion as to the necessary elements of proof. These portions of the Manual for Courts-Martial 1949 and 1951 as were read by defense counsel correctly state the elements of proof. If the court wishes them re-read, they can re-open the court and we will have them read, but I don’t seek to prolong this particular phase of the case.
. Now the defense counsel, in quoting from the manual for 1949 as to the elements of the larceny, correctly stated those elements in reading from the manual, part from pages • 240 and 241 and some from page 252.
¶20The law officer then specifically asked each counsel if he had any further requests or desires and defense counsel stated “The law officer has adequately covered the instructions in the case.” It is now contended that if we do not hold the accused was prejudiced, we lack appreciation of the calibre of counsel appointed to defend the accused in the military system. Without debating the fairness or unfairness of the charge it is my belief that if we are to assist in building a good military judicial system, we must place responsibility on all three principal lawyers participating in the trial of the case, namely, the law officer, trial counsel, and defense counsel. I do not believe the present act contemplates a paternalistic system in which the law officer must be charged with all the delicts of defending counsel. The latter has a definite and primary responsibility to represent properly his client. We cannot require the law officer and trial counsel to be experts and excuse defending counsel on the theory that he must not be charged with a rudimentary knowledge of the law. All three are from the same schools and victims of the same system. Clearly the law officer has a duty to insure a fair and just trial but he does not represent either party and he should not become an advocate for or against an accused. As I understand his functions, *445he is to protect the interests of both parties. The advocates are trial and defense counsel. If perchance defending counsel as a class are inferior to other counsel, a charge I am not prepared to make, then we do not insure improvement by placing the blame for their shortcomings solely on the law officer. On the contrary, so long as we insist on his performing their duties for them, or we reverse cases without regard to the manner in which they perform their tasks, we can expect little improvement in their service.
¶21I am at a loss to understand why the placing of some responsibility on defending counsel becomes so acute in this case. We have affirmed previous cases on the grounds that accused’s counsel had waived his right to complain and we need have little misgivings about exacting a waiver in this case. The only thing that was waived was the right to require the law officer to adopt a particular method of giving to the court the essential elements of the offense. The Manual was before the members, they were referred to the specific pages of the book by both defense counsel and law officer, counsel for the accused read the essential elements from the Manual, and when the law officer instructed the members of the court, he referred them to the identical pages and paragraphs and told them they had been given the correct elements of the offense by the defense counsel, but that if any one wished them restated it would be done. Apparently everyone at the trial level was satisfied the court-martial members had been authoritatively told the elements of the offense and that it was not necessary to have them reiterated. Furthermore, it is a reasonable assumption that unless members well knew the guideposts that would limit them in their consideration of the particular offense involved, a request would have been made that the law officer repeat the charge. In view of this, can it be seriously contended that we are permitting an untrained lawyer to waive one of the historic cornerstones of our system of military jurisprudence? I would not believe so when all defense counsel needed to determine was the likelihood of the court members remembering the elements as he read them.
¶22I prefer to advance one step further and test this case to determine whether our ruling brings about any miscarriage of justice. No one suggested the evidence was insufficient, so we need only be concerned with the possibility of the accused being prejudiced by instructional deficiencies. The principal purposes in giving instructions as required by the Code may be summed up as follows: (1) So the members of the court will be given the law governing the particular case by the law officers; (2) so they may apply the facts to the law as announced; (3) so that accused and his counsel may hear the instructions and know that the court-martial is instructed correctly; (4) so that counsel may be afforded an opportunity to except; (5) so counsel may have an opportunity to suggest corrections; and (6) so that each member of the court-martial will actually receive the instructions. If we measure the procedure adopted by the law officer by those requirements, we find it sufficient to meet the test. This, for the reason that the elements of the offense were read to the members of the court and they could apply them to the facts; accused and his counsel heard each and every instruction given; there was no necessity for defense counsel excepting as he wrote his own formula for the offense; amplifying or modifying instructions could have been requested if desired; the law officer placed his stamp of authority upon the elements necessary to be found before a finding of guilty could be returned; and each member of the court fairly knew and understood those essential elements. While the method used was not the best, an unorthodox method does not in and of itself prejudice an accused. Neither does it rot away a cornerstone of military justice. But much more to the point, if counsel for an accused is satisfied that the method used is adequate to instruct fairly the court, and so announces in open court, I do not hesitate to enforce a waiver. I would only be reluctant to do so if the record show that the particular counsel was so lacking in qualifications that his defense *446affected substantially the fairness of the proceedings so that a miscarriage of justice would result from an affirmance. No such showing is made here.