Opinion of the Court
ROBERT E. Quinn, Chief Judge:Petitioner was charged with the rape of a Korean woman and an assault with a dangerous weapon upon the same woman. Both offenses occurred in Korea on May 13, 1951. Petitioner was tried and convicted by general court-martial on both charges and was sentenced to a dishonorable discharge, total forfeitures, and life imprisonment. The convening authority approved, and the Army board of review affirmed but reduced the confinement to 25 years. We granted petition for review, directed to the following issues:
(1) Whether the law officer erred in excluding testimony of lack of complaint by the victim of the rape; and
(2) whether the refusal of a continuance by the law officer was prejudicial error.
The prosecution case consisted almost solely of the testimony of Mrs. Chai Chang Sook, the victim of the alleged rape. She testified that petitipner entered her house and offered to pay her for an act of prostitution. She refused, but petitioner threatened her with a knife, undressed her, and raped her. When she resisted, petitioner cut her on the thigh with a knife. The only corroboration of her story consisted of the testimony of a companion of petitioner and a Korean neighbor, both of whom saw petitioner enter the house and leave a short time later. No out-pries were heard. After petitioner left *375the house, Mrs. Chai went to a nearby American Aid Station where a Captain Cuprys questioned her through an interpreter (Korean). At this time, the woman’s clothing was not disarranged. She showed no signs of a struggle, was not hysterical, and indicated no fear. She complained of the knife wound. An Army doctor subsequently examined the woman for signs of rape but found none.
While Captain Cuprys was testifying, defense asked on cross-examination whether the woman had made any complaint of rape. The law officer excluded the negative answer of the captain, after objection by the trial counsel, on the ground that the answer was hearsay. The question raised is whether a witness may testify to knowledge obtained by him from another through an interpreter.
It is the general rule that a statement made through an interpreter may be proved only by the testimony of the interpreter. Manual for Courts-Martial, 1951, paragraph 141; Wigmore, Evidence, § 668. There is, however, a well-recognized exception to the general rule. If the interpreter may be considered the agent of the person making the statement, the translation heard by the other party may be received in evidence. MCM' 1951, paragraph 141. This exception has also been extended to the situation where the interpreter acts as the agent for both parties. Commonwealth v. Vose, 157 Mass 393, 32 NE 355; Wigmore, Evidence, Third Ed., § 1810. There are circumstances here which would indicate that the interpreter was acting as the agent for both parties, but we need not decide this issue. After the law officer refused to allow the defense to prove lack of complaint through Captain Cuprys, defense requested an overnight continuance in order that the interpreter' might be called as a witness, urging as grounds therefor that he was surprised by the ruling of the law officer. The continuance was denied. We think the law officer should have allowed the continuance to obtain the interpreter, after the defense was obviously surprised by the ruling on what is, even to us, a very close question of law.
The Manual for Courts-Martial, 1951, gives in detail the rule governing granting of continuances. Paragraph 58c states that the right to secure necessary witnesses is fundamental and must be extended to accused persons, and that the absence of a material witness is reasonable ground for granting a continuance. “Although the question of a continuance is one for the sound discretion of the court, whenever it appears that the court has abused its discretion and denied the accused a reasonable opportunity to prepare for trial or otherwise perfect his defense, the proceedings should be disapproved.” MCM 1951, paragraph 58d. Appellate courts, both Federal and state, have repeatedly held that a refusal to grant a continuance under proper circumstances constitutes an abuse of discretion by the trial court. See Paoni v. United States, 281 Fed 801; Paschen v. United States, 70 F 2d 491; Lacks v. Commonwealth, 182 Va 318, 28 SE2d 713; McFarland v. State, 132 Tex Crim 309, 104 SW2d 879. In Blanton v. State, 135 Tex Crim 654, 122 SW2d 644, the court held that if the testimony of the absent witness was competent, material, credible, and would have supported the defendant’s contentions, and if it is reasonably probable that a different result might be reached if the testimony sought by defense wére before the court, the refusal to grant a continuance to obtain the witness is reversible error.
Here, petitioner was on trial for an offense for which the death penalty could have been imposed. Counsel was surprised by the ruling of the law officer excluding the testimony of Captain Cuprys. After this ruling, the failure of the Korean woman to complain of rape could have been established only by procuring the Korean interpreter as a witness. This testimony was definitely material. Since only the victim herself established the required elements of rape, lack of complaint to Captain Cuprys immediately after the incident would weigh heavily in favor of the defense. See Wharton, Criminal Law, *37612th ed., § 727; Wharton, Criminal. Evidence, 11th ed., § 311. Defense requested only an overnight delay, which would not have unduly prolonged the trial.
Applying the rules discussed above to the circumstances of this case, we think the refusal to grant the requested continuance constituted an abuse of discre-tiori. There was here, in the trial of a capital case, an unexpected development which required that the defense obtain an additional witness who would have provided material, and possibly vital testimony. The ruling of the law member denying the continuance was, therefore, error which substantially prejudiced the accused.
We note, however, that this error does not affect the finding of guilty on the charge of assault with a deadly weapon with intent to commit bodily harm. This finding is supported by substantial evidence. Petitioner’s sentence, as finally approved, amounts to confinement for 25 years; the assault'finding will support a maximum of only 5 years. Thus, even though we affirm the assault finding, further remedial action is required. Accordingly, the decision of the board of review is reversed as to the charge of rape, affirmed as to the charge of assault, and the case is remanded to The Judge Advocate General of the Army for appropriate action.
Judge BROSMAn concurs.