3 USCMA 696, 14 CMR 114; U. S. v. Long (No. 464), 2 USCMA 60, 6 CMR 60; CM 366778, Bills, 13 CMR 407; cf. Speiller v. U. S., 31 F2d 682; Oliver v. U. S., 202 F2d 521; Mercer v. U. S., 14 F2d 281; U. S. v. Mettl, 121 F2d 927; Bolling v. U. S., 18 Fd 863.)

- defense counsel was not required to test the scope of the law officer's rulings by rephrasing his questions. Although the law officer could have rejected both questions because of their form, his remarks implied that he did not consider their defects were solely matters of form. Also, at the outset of the trial defense counsel had been rebuked by the law officer for questionable tactics and the sanction of a contempt citation placed before him. Under these circumstances it should not be demanded that he experiment with the limits of the law officer's rulings.

- with respect to the cross-examination of N. the defense did not waive its right to claim error on appeal by reason of its failure to protest an offer made by the law officer after the conclusion of N.'s testimony to continue the trial for three weeks in order to permit the defense to inquire as to whether N. had been previously convicted. [Latimer, J., dissenting.]

the improper restriction of the cross-examination of B. and N. did not prejudice the accused with respect to the assault charge since the testimony of another witness who was not impeached or contradicted established the accused's guilt of that offense. However, this witness' testimony did not relate to the robbery charge. Also, the stolen watch was found in the possession of B. rather than the accused. Under such circumstances the restriction on the cross-examination was prejudicial as to the robbery charge. [Latimer, J., dissenting.] United States v. Berthiaume (No. 5129), 5 USCMA 669, 18 CMR 293.

[See 58 Am Jur, Witnesses, §§ 740, 750, 759, 760.]

§ 101.6. Particular courts.

A summary court-martial conviction is as fully admissible for impeachment purposes as that of any other sort of court-martial. United States v. Moore (No. 5026), 5 USCMA 687, 18 CMR 311.

If a witness has been convicted by a federal civilian court of a crime characterized as a felony, that conviction may be used to impeach testimony forthcoming from him. If he has been convicted by court-martial of an offense for which confinement in excess of one year, or a dishonorable discharge, is imposable, that offense, too, can be used for an impeachment purpose.

Held also: Despite the conceivable contrary implication of the words of par 76a (6), MCM, 1951, any notion that a prior conviction of an offense for which a dishonorable discharge is imposable may not be used if that offense was of a military nature is rejected. United States v. Moore (No. 5026), 5 USCMA 687, 18 CMR 311.

State court convictions of offenses regarded under local law as felonies are admissible for impeachment purposes. State court convictions of offenses specifically denounced by the Manual as involving moral turpitude are also admissible whether the crime be regarded

Convictions of offenses

under local law as a felony or a misdemeanor. which carry a penalty of more than one year confinement may not be used for impeachment if the offense is not considered a felony under local law, unless the offense is closely analogous to one made punishable by the United States Code as a felony. United States v. Moore (No. 5026), 5 USCMA 687, 18 CMR 311.

§ 101.15. Explanation of conviction; mitigating circumstances.

Whether a witness is or is not a defendant, if previous convictions are introduced for the purpose of impeaching his credibility, the witness should be allowed to make reasonable explanations of such convictions. (Citing MCM, 1949, par 139b; MCM, 1951, par 153b (2); 166 ALR 211; U. S. v. Boyer, 150 F2d 595; Wigmore, Evidence, 3rd ed, sec 1117(3).) United States v. Moore (No. 5026), 5 USCMA 687, 18 CMR 311.

[See 58 Am Jur, Witnesses § 752.]

§ 105. Particular Wrongful and Degrading Acts

§ 105.1. Generally.

On a trial for bribery and conspiracy to commit bribery, a prosecution witness testified that the accused and another told him they could keep him off overseas shipment for a sum of money. After the law officer had sustained a prosecution objection to a question on the ground of irrelevancy, the defense made an offer of proof as to certain matters on which the defense desired to cross-examine the witness. One part of the offer of proof was that the witness had made prior attempts to get off an overseas shipment. Another part related to inconsistent statements of the witness. However, the offer of proof with respect to inconsistent statements did not involve an offer of evidence of statements of the witness inconsistent with his testimony at trial but was as follows: "The defense offer of proof would include questions designed to elicit answers to the same or similar questions asked in pages 33 through 35 of the testimony of Airman Boyle at the Article 32 investigation, and in the event that the witness's answers were contradictory or inconsistent with the answers given in the Article 32 then to introduce the questions and answers as given on the Article 32." A third part of the offer of proof was that the witness was violating regulations by working off the base and that he continuously sought to stretch regulations.

Held that:

the trial defense counsel's offer of proof that the witness had made prior attempts to get off an overseas shipment consisted of a mere conclusion of the fact to that effect. Such fact is not inconsistent with any testimony of the witness at trial and does not import that any attempts on the part of the witness of that nature were by unlawful means. Accordingly, proof of that fact was not shown to have any probative value to affect the credibility of the witness and the law officer properly ruled that such evidence was irrelevant and immaterial for the purposes of impeachment. (Citing MCM, 1951, par 149b(1); U. S. v. Long (No. 464), 2 USCMA 60, 6 CMR 60; U. S. v. Berthiaume (No. 5129), 5 USCMA 669, 18

CMR 293; U. S. v. Hubbard (No. 5225), 5 USCMA 525, 18 CMR 149.)

what is characterized in the above quote as an offer of proof did not constitute an offer of proof and the procedure the defense desired to follow was contrary to any legitimate method of trial procedure and was properly rejected by the law officer.

the defense offer of proof that the witness was violating regulations by working off the base and that he continuously sought to stretch regulations may be said to show a departure from the norm of human behavior but it would have such slight probative value to affect the credibility of the witness that the law officer, in the proper exercise of discretion, did not err in ruling that such evidence was irrelevant and immaterial. (Citing MCM, 1951, par 149b(1); U. S. v. Long, supra; U. S. v. Berthiaume, supra; U. S. v. Hubbard, supra.) ACM 10050, Graalum (1955) 19 CMR

See United States v. Berthiaume, infra § 101.3.

Consideration for impeachment purposes of evidence of specific acts of misconduct which is admissible as showing plan, design or scheme, see United States v. Haimson, CONDUCT, ETC § 50.7.

§ 105.3. Cross-examining as to.

While preparing a bank deposit the manager of a noncommissioned officers' club discovered a sum of money was missing. The assistant manager had counted the money the night before and the accused had been present at the time. When the assistant manager had counted the money he had placed it in a safe behind him and for a period of about two minutes the accused was also behind him using the telephone. The accused denied taking the money but during an investigation he stated he could return it if given an opportunity to obtain a loan. When asked why he wanted to replace it if he didn't take it he replied that he wanted to avoid a court-martial. At his trial for larceny of the money the accused testified in his own behalf and upon cross-examination was asked by the trial counsel whether, during the time he was manager of the club, a shortage had occurred and whether a bonding company had paid off because of the shortage. The accused answered that certain payments had been made by the bonding company but he had not been relieved of his duties because of the shortage and he had never been accused of it. There was no objection by the defense to the question and in fact the defense counsel enlarged upon the matter by bringing out that the accused himself had discovered and reported the shortage. Also during cross-examination the accused admitted taking a certain married woman to her home. The trial counsel was then permitted to repeatedly question him as to whether he had taken her elsewhere and parked in a car with her. The accused's answers were denials. The trial counsel also asked him if he was aware the woman had discovered a sum of money missing. Held: The error, if any, in permitting the trial counsel to ask the accused if there had been a shortage which was paid by a bonding company while he was manager of the club would not require reversal, particularly in view of

the principle that the answers of the accused denying any wrongdoing were binding on the questioner in the absence of refutation and that the accused's negative answer tended to discredit the position of the government rather than affecting adversely the interest of the accused. (Citing U. S. v. Russell (No. 2652), 3 USCMA 696, 14 CMR 114.) However, it was an abuse of discretion to permit the trial counsel to persist in his cross-examination intimating by insinuation and innuendo that the accused had improper relations with a woman and was in some way responsible for the loss of her money. (Citing U. S. v. Long (No. 464), 2 USCMA 60, 6 CMR 60.) Furthermore, the circumstantial evidence supported by the testimony of two witnesses, both of whom had greater access to the money than did the accused, plus the inferences of the accused's statements, as against his denial of guilt, is not so compelling as to overcome the harmful effect of the trial counsel's erroneous accusatory questions. Under the circumstances the credibility of the accused became a vital issue and the error was prejudicial. NCM 386, Green (1955) 18 CMR 439.

[See 58 Am Jur, Witnesses § 687.]

The accused was convicted of wrongful use of narcotics. The evidence showed that he had smoked a cigarette containing morphine. On direct examination he testified that he had never used narcotics before and that he was unaware that the cigarette contained morphine. He explained that he had seen G. smoking a cigarette and asked him for one. G. said he had no more but he could have a few puffs on the one he was smoking and he accepted G.'s offer. On cross-examination the accused was asked if he had ever been suspected of using narcotics by his commanding officer. An objection to the question was sustained but it was followed by several questions relating to whether he had ever been previously apprehended by the CID. The accused admitted a previous apprehension. He stated he did not know what the CID stopped him for but later he was recalled to the stand and questioned by his own counsel and he stated that when the CID stopped him they were looking for narcotics but found none. The chief prosecution witness was the orderly of the hut in which the cigarette was smoked. He testified that he saw the accused and G. in the hut and that no one else was present. He then left the hut but returned a short time later and the two men were still there. He observed G. take a paper containing white powder from his pocket and then take a cigarette and remove some of the tobacco and replace it with powder. When this operation was completed G. lit the cigarette and took a draw on it and then passed it to the accused who did the same thing. On cross-examination this witness admitted that he had previously told the investigating officer that the first time he saw the accused was when he returned to the hut after having previously left it. He also stated that he had not been read UCMJ, Art 31, at the time he gave his statement. However, the investigating officer testified he had read Art 31 to the witness. The witness also admitted he had been convicted twice for sleeping on post. G. testified for the defence and corroborated the accused's story of the incident. Held: In some courts the commission of an offense must be followed

by conviction before it can be used for impeachment. In others an act of misconduct can be used to discredit a witness regardless of whether a conviction followed. In the instant case there was no justification for the questions asked the accused since, even assuming the applicability of the less restricted rule permitting cross-examination regarding offenses not resulting in a conviction, there was no showing of an act of misconduct affecting the accused's credibility. On the contrary the cross-examination consisted solely of repeated innuendoes and insinuations. Also, the accused's direct testimony was not such as to open the door to refutation. (Citing Little v. U. S., 93 F2d 401; Coulston v. U. S., 51 F2d 178; Michelson v. U. S., 335 US 469, 93 L ed 168, 69 S Ct 213; ACM S-7392, Dutey, 13 CMR 884; U. S. v. Long (No. 464), 2 USCMA 60, 6 CMR 60; Walder v. U. S., 347 US 62, 98 L ed 503, 74 S Ct 354.) Under the circumstances the error in the cross-examination of the accused was prejudicial. (Citing U. S. v. Russell (No. 2652), 3 USCMA 696, 14 CMR 114; U. S. v. Yerger (No. 122), 1 USCMA 288, 3 CMR 22; Miller v. Territory of Oklahoma, 149 F 330.) United States v. Hubbard (No. 5225), 5 USCMA 525, 18 CMR 149.

[See 58 Am Jur, Witnesses $$ 748 et seq.]

The accused was convicted of larceny. The evidence showed that while serving as secretary of a non-commissioned officer's mess he took a large sum of money belonging to the mess and left the post with it on his person. When he returned he did not have the money. He claimed he had either lost it or it was stolen. In seeking to destroy the credibility of the accused's account of the loss of the money, the trial counsel cross-examined him extensively with respect to personal checks of his which had been dishonored during his tenure as secretary of the mess. In this cross-examination the accused conceded he had drawn checks when he knew his bank account did not contain funds for their payment. He also admitted he might have drawn several checks on an account which had been closed and he recalled having made good at various times a number of checks which had been returned for want of sufficient funds. Held: Military law permits cross-examination calculated to bring out acts of misconduct on the part of a witness, although these acts have not resulted in conviction. (Citing U. S. v. Berthiaume (No. 5129), 5 USCMA 669, 18 CMR 293.) The test for determining whether evidence of an act of misconduct is admissible for the purpose of impeaching a witness is whether the act is a matter touching upon the witness' worthiness of belief. To a considerable extent the administration of the matter must be left to the sound discretion of the law officer, and the Court of Military Appeals will usually intervene only when it believes that it would be unreasonable to conclude that the act of misconduct in question would serve to affect credibility. The misconduct of the accused in drawing checks in amounts he could not cover and against a bank in which he no longer maintained an account was conduct of such a nature as to effect his credibility and accordingly the cross-examination was a proper method for impeach