improper conditions which produced an initial admission of guilt will permit the use of subsequent statements if they are otherwise properly procured. Here, ten days elapsed between the voice tests and the accused's written statement and the recording of his interrogation. On three separate occasions during that period the accused was fully informed of his right not to make any statement. Yet, he freely answered all questions put to him, and voluntarily signed a written statement. The subject matter of the three interrogations varied. Plainly, the interrogations were separate and unrelated to the voice test and did not constitute parts of one continuous process. They are not, therefore, as a matter of law, tainted by the improper voice test. This is also true of the written statement signed by the accused. Consequently the law officer did not abuse his discretion in admitting in evidence the tape recording and the accused's pretrial statements. (Citing U. S. v. Greer (No. 3155) 3 USCMA 576, 13 CMR 132; U. S. v. Bayer, 331 US 532, 91 L ed 1654, 67 S Ct 1394; U. S. v. Monge (No. 9), 1 USCMA 95, 2 CMR 1; cf. Leyra v. Denno, 347 US 556, 98 L ed 948, 74 S Ct 716; dissenting opinion by Latimer, J., U. S. v. DeLeo (No. 4194), 5 USCMA 148, 17 CMR 148.) [Brosman, J., concurring. Latimer, J., dissenting.] United States v. Noce (No. 5488), 5 USCMA 715, 19 CMR 11, affirming CM 372834, Noce, 16 CMR 313, infra this section.

The accused was convicted of orally communicating obscene language by telephone to a female. The evidence disclosed that after several women at a military installation complained about anonymous obscene telephone calls, the military police requested the post's signal officer to monitor the post's switchboard. This was done and an obscene call to another woman was traced to a telephone in a particular office where the accused was apprehended. The accused confessed to the offense. Held: Section 605 of the Communications Act of 1934 (48 Stat 1103, 47 USC 605), which pertains to the unauthorized divulgence of communications by wire or radio, does not prohibit action of the nature taken by the military police authorities in this case, especially in view of the fact that there was no privity between the parties to the telephone call, the very act of making the call was a trespass, and switchboard monitoring was the only likely way in which the accused could have been apprehended. (Citing U. S. v. Sullivan, 116 F Supp 480, 484.) CM 372834, Noce (1954) 16 CMR 313.

The accused contacted a fellow serviceman with regard to participating in an illegal scheme. This man contacted the station legal officer and then, acting on the officer's orders and using a legal office telephone, he called the accused while the legal officer's secretary listened on an extension phone and took notes. In addition, another officer listened on another phone in another office. The law officer refused to admit testimony of the conversation on the ground that it was obtained in violation of the wire tap provisions of the Communications Act. However, the government was permitted to show that immediately after the call the accused took certain action apparently in furtherance of the illegal scheme. Held: Section 605 of the

Communications Act which prohibits persons not being authorized by the sender to intercept and divulge communications does not apply to a communication over a self-contained, exclusively operated military system. Also excluded from the scope of sec 605 are privately operated systems of communication which are not connected with regularly licensed facilities. (Citing U. S. v. Noce (No. 5488), 5 USCMA 715, 19 CMR 11; On Lee v. U. S., 343 US 747, 96 L ed 1270, 72 S Ct 967; Casey v. U. S., 191 F2d 1, revd on other grounds 343 US 808, 96 L ed 1317, 72 S Ct 999.) For the purposes of this decision it is assumed that the system used was within the purview of the Act. However, in enacting sec 605 of the Communications Act, Congress did not turn a telephone conversation into a privileged communication. Either party is completely free to disclose its existence and its contents to whomever he wishes, and to use it for his own benefit or the benefit of another to whatever extent he desires. (See U. S. v. Polakoff, 112 F Supp 888; MCM, 1951, par 152c(1), p 287; cf. Weiss v. U. S., 308 US 321, 84 L ed 298, 60 S Ct 269.) As used in § 605 of the Communications Act the word "intercept" is used in its natural sense, that is, the taking or seizure by the way or before arrival at the destined place. Additionally, a surreptitious taking is contemplated; a seizure without the knowledge and consent of both communicants. (Citing Goldman v. U. S., 316 US 129, 86 L ed 1322, 62 S Ct 993; Nardone v. U. S., 302 US 379, 82 L ed 314, 58 S Ct 275.) Also, tapping implies an actual cutting in on the telephone line. A person who employs the telephone as a means of communication impliedly consents to the receiver's use of existing extensions on his own number. For the purposes of this decision it is assumed that in a telephone call each party is alternately a sender and a receiver. (Citing U. S. v. Lewis, 87 F Supp 970, 973, revd on other grounds, sub nom Billeci v. U. S., 184 F2d 394; U. S. v. Polakoff, 112 F2d 888, 889; Sullivan v. U. S., 219 F2d 760; U. S. v. Stephenson, 121 F Supp 274, 277.) In view of the foregoing, a person who overhears a telephone conversation by means of an extension instrument, which he is authorized to use by one of the parties to the conversation, may testify to its contents, even though the other communicant did not know of, or expressly consent to, the listening in. (Citing U. S. v. Yee Ping Jong, 26 F Supp 69; U. S. v. Polakoff, 112 F2d 888; Goldman v. U. S., 316 US 129, 86 L ed 1322, 62 S Ct 993; Reitmeister v. Reitmeister, 162 F2d 691; U. S. v. Lewis, 87 F Supp 970 and other cases.) [Brosman, J., concurring. Latimer, J., dissenting.] United States v. DeLeon (No. 5234), 5 USCMA 747, 19 CMR 43.

§ 71. Acts and Declarations of Accomplices; Convictions § 71.1. Generally.

On a trial for larceny of some pistols, the evidence showed that after the accused had taken the pistols they contacted one B. and asked him to take care of them. B. agreed to do so and placed them in a box which he turned over to an employee of his by the name of H. B., H., and the accused agreed to transfer the pistols to B.'s apartment and thereafter H. accomplished the transfer. H. later took one of the pistols to exhibit to a prospective customer. While

he was out with it he was met by an OSI agent to whom he related the circumstances under which the pistol came into his possession, and as a result of his disclosures arrangements were made to intercept the accused. Held: Any statements made by H. during the course of his participation in and pursuant to a joint criminal venture, would be admissible as an exception to the hearsay rule. Any statements of H. to B. fall within this category. However, statements made to the OSI agent after assuming the role of an informer, which would have constituted a withdrawal from the conspiracy, are not within the exception and evidence pertaining thereto was not competent. However, because of the compelling nature of other testimony there was no prejudicial error. (Citing MCM, 1951, par 140b; U. S. v. Young (No. 1015), 2 USCMA 470, 9 CMR 100.) ACM 8708, Buxton and Roy (1954) 16 CMR 732.

VI. BEST AND SECONDARY EVIDENCE

§ 77. In General

Failure to object to evidence on grounds that it is not best evidence as waiver, see ACM 10447, Holstrom, DISOBED § 35.3.

Patient's statements as to results of an eye examination as hearsay, see NCM 350, Davis, et al, MAIMING § 15.1.

VIII. CONFESSIONS AND ADMISSIONS

B. CRIMINAL PROSECUTIONS; COURT-
MARTIAL PROCEEDINGS

§ 115. Several Confessions; Prior Involuntary Confessions

§ 115.1. Generally.

The two accused were apprehended by city police and questioned without any warning of rights and orally admitted the alleged larceny and escape from confinement. Shortly thereafter, the accused were turned over to FBI and OSI agents and, after being warned of their rights under Art 31, executed written statements. In an out-of-court hearing before the law officer, one of the policemen testified that he told one of the accused that there would be no prosecution by the city police department but other authorities outside the city might be involved. Held: Although the oral statements of the accused to the civil police would not have been admissible in evidence against them since they were not warned of their rights under UCMJ, Art 31 (ACM S-5198, Wiser, 9 CMR 748), the written statements to the FBI and OSI agents were properly admissible in evidence since each accused was carefully advised

(Citing U. S.

of his rights prior to the giving of such statements. v. Monge (No. 9), 1 USCMA 95, 2 CMR 1; U. S. v. Sapp (No. 14), 1 USCMA 100, 2 CMR 6; ACM 7072, Hawk, 12 CMR 741.) Furthermore, there was no evidence that the civil police promised the accused immunity from prosecution as an inducement as alleged by the defense.

Held also: The action of the law officer in not bringing to the attention of the members of the court the evidence developed at the out-of-court hearing was not error, in the absence of a request to do so from defense counsel. (Citing U. S. v. Cooper (No. 708), 2 USCMA 333, 8 CMR 133, 137.) ACM 9035, Bishop and Koch (1954) 16 CMR 899.

Following the theft of a wallet, the accused was interrogated by a noncommissioned officer without being advised of his rights under Art 31. The NCO told the accused that if the accused told the truth and made restitution he would try to handle the matter at squadron level by using his influence with the squadron commander but the final determination of the matter of a court-martial would depend on the commander. At first the accused did not indicate that he desired to make a statement, but after about an hour's discussion he informed the NCO that he would make a statement. Thereafter, an OSI agent was summoned and he took the accused to his office. After advising the accused pursuant to Art 31, the agent obtained a confession in which the accused acknowledged that he had understood his rights. The OSI agent was not present at the interrogation of the accused by the NCO, nor was the NCO present when the accused was interrogated by the agent. Furthermore, there was no indication in the evidence that the accused confessed to the agent with any reluctancy, but it appeared that he readily confessed without any show of force, threats or other influence. Furthermore, the defense did not introduce any evidence rebutting the voluntariness of the confession. Held: Assuming, without deciding, that the statements made by the NCO constituted an inducement of such a substantial nature that they would likely operate to impair the accused's freedom of will to confess or to remain silent, the relation between the inducement offered by the NCO and the subsequent confession to the OSI agent is not so close as to be irreconcilable with the accused's mental freedom "to confess or to deny a suspected participation in a crime" (Lyons v. Oklahoma, 322 US 596, 88 L ed 1481, 64 S Ct 1208; U. S. v. Monge (No. 9), 1 USCMA 95, 2 CMR 1). On the contrary, the evidence permits a strong inference of voluntariness, and, accordingly, the accused's confession to the OSI agent was not involuntary as a matter of law (see U. S. v. Monge, supra; ACM 8866, King, 16 CMR 858). Furthermore, the board determines as a matter of fact and law that the confession was voluntary. ACM 9179, Howell, 17 CMR 855.

Statements made following warning of rights as not rendered inadmissible by reason of prior statements without warning of rights made in the course of unofficial conversation, see United States v. Dandaneau, infra § 133.7.

Effect of prior involuntary statements on subsequent statements, see United States v. Johnson, infra § 133.7.

$117.1. Generally.

§ 117. Admissions, Generally

Corroboration of confession by self-incriminatory acts admissible only as admissions against interest as not permissible, see ACM 9220, Villasenor, LARC § 55.5.

Production of allegedly stolen property as an admission, see CM 376162, Reid, infra § 133.1.

§ 117.9. Admissions by defense counsel or others.

Acceptance by board of review of statement by defense counsel which favors the government where it is not in violation of counsel's duties and has a rational basis in the evidence, see CGCMS 20083, Spencer, LARCENY § 55.1.

§ 123. Effect Against Other than Person Making
Admission or Confession

§ 123.1. Generally.

When a witness for the prosecution stated that he was having difficulty remembering certain events the trial counsel examined him with regard to a statement he had given some five days after the events about which his memory was now faulty. This statement proved to be a confession given by the witness concerning his activities in connection with certain offenses and implicating the accused. So much of the statement as implicating the accused was admitted into evidence as past recollection recorded. Held: The admission of the statement was error. It was the rankest sort of hearsay when introduced against the accused and was not clothed with admissibility merely by being termed "past recollection recorded". The evidence showed that the accused and the witness were, if not conspirators or accomplices, at least co-actors. It is well settled that the statement of a conspirator, made after the conspiracy was terminated, is not admissible against a co-conspirator. The proscription against using the confession of a co-actor as evidence in the trial of an accused who had not participated in the taking of the confession far outweighs any permissible introduction of statements as past recollection recorded made by disinterested witnesses. (Citing 20 Am Jur, p 428; MCM, 1951, pars 139a and 140a; cf. U. S. v. Day (No. 703), 2 USCMA 416, 9 CMR 46, 55.)

Held also: In addition, statements or memoranda to be admissible as past recollection recorded must fulfill certain rigid requirements which were not present in this case. (See MCM, 1951, par 146; People v. Zalimas, 319 Ill 186, 149 NE 759.) NCM 377, Brown (1954) 18 CMR 410.

Error in questioning an accused testifying as to voluntariness of confession on the truth of his statement as affecting the conviction of a co-accused, see ACM 9092, Fetch, Moler & Holt, SELF-INCRIM § 3.1.