United States v. Goldberg

(dissenting) :

In my opinion, the challenged instruction presents no fair risk of prejudice to the accused and, therefore, does not justify reversal of an otherwise unimpeachable conviction. See my dissent in United States v Mathis, 15 USCMA 130, 134, 35 CMR 102; United States v Hacker, 15 USCMA 419, 35 CMR 391.

The erroneous instruction is as follows: “If the accused would not have committed the act had the circumstances been such that immediate detection and apprehension were certain, he cannot be said to have acted under an irresistable [sic] impulse.” Since the accused committed the offense…