ment of his credibility. United States v. Hutchins (No. 6078), 6 USCMA 17, 19 CMR 143.

The accused was convicted of sodomy. In a confession he said he didn't know why he committed the act alleged unless because of his drinking he got a sex urge and remembered that two Japanese prostitutes had committed similar acts upon him. The confession was admitted in evidence without objection by the defense as to the admissibility of the evidence of prior acts of misconduct. After the accused had taken the stand to testify in his own behalf, the prosecution and the court cross-examined him in regard to the prior acts of sodomy performed on him by the prostitutes. Again there was no objection. Held: For purposes of impeachment, an accused who takes the stand on the merits may be cross-examined as to prior acts of misconduct even though no conviction resulted. However, the act of misconduct sought to be shown must be of sufficient gravity and of such a nature as would, in fact, tend to impeach his credibility. (Citing MCM, 1951, par 153b (2)(b); ACM S-7392, Dutey, 13 CMR 884; U. S. v. Long (No. 464), 2 USCMA 60, 6 CMR 60; U. S. v. Hubbard (No. 5225), 5 USCMA 525, 18 CMR 149.) Sodomy is a felony and is an offense involving moral turpitude. Such misconduct is of sufficient gravity and of such a nature as would, in fact, tend to impeach the accused's credibility as a witness. Accordingly, the law officer did not abuse his discretion by determining that the relationship of such matter to credibility was not too remote and permitting such crossexamination for impeachment purposes. (Distinguishing U. S. v. Adkins (No. 4793), 5 USCMA 492, 18 CMR 116; U. S. v. Hubbard (No. 5225), 5 USCMA 525, 18 CMR 149.)

Held also: The fact that the evidence of other acts of misconduct contained in the confession may have been inadmissible at the time and for the purpose offered is of no importance since the same evidence was admissible when offered subsequently, and any error committed by its initial admission was cured by its subsequent proper admission during cross-examination of the accused. (Citing ACM 9023, Beckner, 16 CMR 759, 761; U. S. v. Powell (No. 1450), 3 USCMA 64, 11 CMR 64.) ACM 9803, O'Connell (1955) 18 CMR 881.

§ 107. Inconsistent or Contradictory Statements

§ 107.1. Generally.

On the trial of the accused for wrongful possession of marihuana, the prosecution introduced a statement he had given to a CID agent in which it was asserted that one R. had borrowed $5 from the accused to purchase marihuana cigarettes. On cross-examination the accused denied he made such a statement to the agent. He also denied making any other statements to the agent concerning his knowledge of the purpose of the loan. The trial counsel then asked him if when he had talked to the agent on a certain date he hadn't said that R. wanted to borrow $5 and that he knew at the time it was for marihuana but said okay because he thought R. might expose his homosexuality. The accused denied making such a statement. When the defense counsel objected to the ques

tion, the trial counsel asserted he would prove the making of the statement. He later recalled the CID agent and other witnesses and questioned them about other pretrial statements made by the accused but he did not mention the one which contained the reference to the homosexual tendencies.

Held that:

- the trial counsel's question was not improper because of the reference to homosexuality. Assuming, arguendo, that as a general rule a prior statement should be policed and degrading information deleted, a witness who is contumacious, quibbles, hedges, does not remember, or is apt to seize on an omission of a part of the statement as a basis for a denial, cannot raise error if the crossexaminer is exact in quoting the base for his impeachment questions. The accused had denied his written statement and at least one other oral statement heard by three officers. Each time he explained his answers he varied his version of what he had said and he categorically denied having made more than one statement to the agent. This entitled the cross-examiner to pin him down to the precise language used in the particular statement. Moreover, the trial counsel was trying to establish a second statement made to the agent and the only difference in phraseology that would identify the second statement from the first was contained in the phrase which mentioned homosexuality. Furthermore, the statement may have been meant to be exculpatory in that it disclosed an unwilling participation by the accused because R. held a sword of knowledge of homosexual tendencies over his head. If viewed in that light, the trial counsel was under a duty to include the beneficial portion of the statement when he posed his question. Therefore, the question was not improper even though it tended to disclose a character defect involving moral turpitude. [Quinn, C. J., dissenting.]

if the trial counsel could prove the prior inconsistent statement, the accused was not prejudiced by his failure to do so. The court was required to accept the accused's denial as true. The law officer had limited the impeachment question to their legitimate sphere, and defense counsel could have requested him to inform the court that the accused's negative answer must be taken as true. Failing in that regard, he cannot contend that the law officer erred in failing to deal further with any harmful inference possibly arising from the question.

- assuming that the trial counsel erred in posing the question, the error was not prejudicial in view of compelling evidence of guilt and the contradictory testimony given by the accused in court. United States v. Gandy (No. 5403), 5 USCMA 761, 19 CMR 57.

Inconsistent statements are a well-recognized method of impeaching the credibility of a witness, but before they may be used, a proper foundation must be laid in order to permit a witness to explain, deny, or admit them. To lay the predicate, the witness must first be confronted with the impeaching statement, quoted as accurately as possible, so that he will be afforded a fair opportunity to make an honest

and intelligent answer and a reasonable explanation. A judge in a civilian court, and a law officer in a military court, have some discretion as to the completeness and substantive content necessary to lay the proper foundation. When dealing with a verbal statement, it is the better practice to give the time, the date, the place, the person to whom the statement was made, and a verbatim account of the statement, if possible. If it is not possible to quote, word for word, the statement as given, then it is satisfactory to substitute the substance and effect of the statement claimed to have been made. United States v. Gandy (No. 5403), 5 USCMA 761, 19 CMR 57. [See 58 Am Jur, Witnesses $779.]

Sufficiency of offer of proof with respect to inconsistent statements, see ACM 10050, Graalum, supra § 105.1.

§ 111.1. Generally.

§ 111. Contradiction

The accused took the stand for the limited purpose of testifying as to the voluntariness of a confession. On cross-examination he was asked whether or not he had ever lied under oath to which he replied in the negative. Trial counsel then showed the accused a document and, over objection of the defense counsel, succeeded in establishing that it was a sworn statement in which the accused had told his interrogators about a certain transaction with another airman. The accused admitted that that portion of the statement was not true but asserted that the entire statement was otherwise correct. The statement was not offered in evidence and only that portion referred to reached the court. The law officer instructed the court that it was received merely for the purpose of impeachment and was not to be considered as evidence. Held: The question "Have you ever lied under oath" if asked in good faith is proper since an affirmative answer thereto bears directly upon the credibility, the worthiness of belief, of the witness. Furthermore, the fact that the accused answered the question in the negative did not prohibit the trial counsel from continuing the cross-examination on the subject by pointing out a specific statement made under oath and asking the accused whether or not it was false. The accused was under crossexamination and when the trial counsel called his attention to a particular statement he was merely attempting to show that the accused had presented a false picture to the court in denying that he lied under oath. Thus, the trial counsel was merely probing in his cross-examination of the accused into a matter which was a proper subject of inquiry. Such procedure is distinguishable from that which exists where the trial counsel after cross-examination of an accused attempts to rebut his testimony on a collateral issue by calling rebuttal witnesses. (Citing MCM, 1951, pars 138f(2), 149b; ACM S-7018, Anderson, 13 CMR 829; 58 Am Jur, Witnesses §§ 783, 784; Wigmore on Evidence, 3rd ed, vol III, §§ 1001, 1003; Wharton's Criminal Evidence, 11th ed, vol 3, §§ 1293, 1353; Underhill's Criminal Evidence, 4th ed, §§ 421, 429.) Also, the statement of the accused which was the subject of the controversy was neither a confession nor

admission and proof of its falsity did not go, except in a remote sense, to his guilt or innocence of the offense charged and accordingly the accused's right against self-incrimination was not violated. (Citing U. S. v. Hatchett (No. 1137), 2 USCMA 482, 9 CMR 112, 116; U. S. v. Webb (No. 370), 1 USCMA 219, 2 CMR 125.) Furthermore, although the cross-examination of the accused was not improper, a contrary conclusion would not require reversal in this case. The incident complained of occurred during the trial which extended over seven days and cannot be magnified beyond its true place in the whole picture. The evidence of guilt was compelling and no different result would have been reached had the cross-examination been limited as contended for by the defense. (Citing U. S. v. Russell (No. 2652), 3 USCMA 696, 14 CMR 114; U. S. v. Williams (No. 5228), 5 USCMA 406, 18 CMR 30; Salerno v. U. S., 61 F2d 419; Morgan v. U. S., 98 F2d 473; ACM 5794, Cawthon, 7 CMR 704, 708.) ACM 9603, Cole, Itskowitz & Ehrlich (1955) 18 CMR 771.

VIII. CORROBORATION

§ 119. Impeached or Contradicted Witness

§ 119.1. Generally.

A certain officer testified as a prosecution witness concerning acts of the accused. On cross-examination it was elicited that there was a possibility of a variance in dates in his testimony at the pretrial investigation and in that given at the trial. In explanation of his testimony the witness said that he had testified twice, "IG and Art 32," and that at that time he hadn't made any effort to remember dates. He said that he answered questions asked him and did not offer any information and tried to give the accused every benefit of the doubt. Recognizing that the effect of the foregoing was to impeach the witness to some extent, the prosecution on redirect examination sought to rehabilitate the witness and asked why he had given the accused the benefit of every doubt. The witness replied that shortly before the Art 32 investigation was started he met the accused who told him he had resigned, that the findings in the Art 32 investigation would depend upon whether he got the court-martial or resigned, and that it meant everything in the world to him to be able to resign and not face a court-martial. Held: A substantial basis existed for the admission of the foregoing testimony as an attempt to rehabilitate the witness, even though the explanation given by the witness contained the reference to the accused's remark about resigning from the service. (See U. S. v. Molette (No. 2735), 3 USCMA 674, 678; 14 CMR 92, 96; U. S. v. Powell (No. 1450), 3 USCMA 64, 71, 11 CMR 64, 71.) However, if the admission of the testimony that the accused had offered his resignation be regarded as error, there was no prejudice since the accused testified that he never at any time intended to do anything other than resign under honorable conditions and that he had never had any intention of resigning in lieu of a court-martial or for the good of the service. ACM 8656, West (1954) 16 CMR 587,

IX. CREDIBILITY

§ 125. In General

§ 125.21. Unimpeached or uncontradicted witness.

The accused were charged with larceny of an automobile. The evidence showed that they were found by civilian police sitting in an automobile which had been reported as stolen. The accused testified that they were given a ride in the automobile by a civilian who left it to seek gas and that while he was gone they were arrested. Their story was unrebutted. Held: Since the testimony of the accused was uncontradicted, neither accused was impeached, and their explanation of their presence in the stolen automobile was not improbable, under the rule that when a witness who is unimpeached testifies to facts within his knowledge, which are not improbable, or in conflict with other evidence, the witness is to be believed, the court was not at liberty to deliberately reject the accused's testimony. (Citing Wharton's Criminal Evidence, vol 2, sec 880, p 1520; 52 CJS, Larceny, sec 110, p 934; ACM 6418, Harris, 9 CMR 814, 818.) ACM 9460, Sears and Kiger (1954) 18 CMR 618.

[See 58 Am Jur, Witnesses § 864.]

X. IN CIVIL PROCEEDINGS

§ 133. Military Personnel and Civilian Employees

§ 133.1. Generally.

The military authorities are without legal authority to compel the attendance of a person in the military service at the trial of a private suit. (Citing SPJGA 241.3, 6 Aug 1942; SPJGA 1942/5599, 27 Nov 1942; SPJGA 1944/4821, 23 May 1944.) JAGA 1954/8334. 4 October 1954.