Opinion of the Court
GEORGE W. LatimeR, Judge:The accused was tried by a general court-martial1 for the offense of desertion. He was found guilty as charged and sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for two years. The sentence was approved by the convening authority, but the execution of the dishonorable discharge was ordered suspended until the release of the accused from confinement. A board of review in the office of The Judge Advocate General of the Army concluded that the findings of guilty and the sentence were incorrect in law and set them aside because of a finding that the accused’s privilege against self incrimination was violated to his substantial prejudice. The Judge Advocate General of the Army certified the record of trial to this Court pursuant to Article 67 (b) (2), Uniform Code of Military Justice, 60 USC § 654. The issue, as phrased by him, is: Did the law officer’s questioning of the accused relative to Prosecution’s Exhibit 2 (stipulation) result in error fatal to the validity of the finding of guilty and the sentence ?
The facts necessary to understand properly the issue involved are these: The evidence of the Government showed the inception of the unauthorized absence to have commenced on the 10th day of June, 1951. The method of termination was contained in a written stipulation signed by the accused, his counsel and the Government. The contents of this stipulation, which is the exhibit 2, are that if two agents of the Federal Bureau of Investigation were present in court they would testify that they apprehended the accused on October 29, 1951, at a given address in St. Louis, Missouri; and that at the time of his apprehension accused was wearing a Class A khaki uniform.
During the course of the trial the prosecution offered the stipulation into evidence, and defense announced that there was no objection. The law officer, apparently in an attempt to comply with certain provisions of the Manual for Courts-Martial, United States, 1951, which will be hereinafter referred to, asked the accused certain questions and received certain answers. These are quoted in haec verba:
“Law OfficeR: Private Collier at the time you signed this instrument did you know the contents thereof? Did you know what was included?
Accused: No, sir, I didn’t.
Law OfficeR: You did not?
Accused : No, sir.
Law OfficeR: Well, do you now agree that the matters and things contained in the stipulation being introduced in court are true?
Accused: Yes, sir.
Law OfficeR: Do you understand what is contained in the stipulation?
Accused : Sir, everything on there is true on paper. I understood.
Law OfficeR: Have you read it?
Accused: Yes, sir.
Law OFFICER: And you agree that everything in the stipulation is true?
Accused: Yes, sir.
Law Officer: The stipulation will be received in evidence and marked as requested.”
The point in dispute is whether the colloquy between the law officer and the accused, without objection by him or his counsel, was in violation of Article 31 (a), 50 USC § 602, which provides that no person subject to the Code shall compel any person to answer any question the answer to which may tend to incriminate him.
The Manual for Courts-Martial, supra, par. 154b, provides for the use of stipulations and states that the general principle is as follows:
“The parties may make written or oral stipulations as to the existence or nonexistence of any fact. A stip*577ulation need not be accepted by the court and should not be accepted if any doubt exists as to the accused’s understanding of what is involved.”
A reading of the record suggests that the law officer was not seeking to compel the accused to testify against himself. Rather, he was interrogating him to determine his understanding of the nature and extent of the stipulation as required by the foregoing section. The law officer, undoubtedly, used an ill-chosen phrase when he asked if the contents of the stipulation were true, but the words used must be interpreted in the light of existing conditions. The background before, and the facts and circumstances attending, the incident must be considered in determining whether the answers were exacted by compulsion or coercion.
There is no contention made that the stipulation was not voluntarily entered into or that it contains any statement made by the accused. He took the witness stand in his own behalf, testified as to the facts and circumstances surrounding his absence and voluntarily corroborated most of the facts set forth in the stipulation. He had pleaded guilty to the included offense of absence without leave, and attempted to explain his reasons for not returning to the service. Included in the stipulation are two facts beneficial to the accused as they bolstered the explanation given. These were that he was apprehended at his home, which was consistent with his claim that he stayed there during the full period of absence to assist his father; and the second was that he was wearing a Class A uniform, which was indicative of the fact that he had not entirely severed his connection with the Army. The only element which was detrimental to him was the fact that he was apprehended, negating voluntary return, and this fact was not disputed. If, therefore, he was compelled to give evidence against himself it amounted to no more than an admission that he was apprehended.
The essence of the privilege protected by the Code is freedom from giving compulsory testimony. Neither the letter nor the spirit of the Uniform Code of Military Justice is violated unless the accused is compelled or coerced into giving evidence incriminating himself. Compulsion may be either physical or mental, but to establish a violation Of the right against self incrimination the accused must show some act which denies him the right to free choice. We have searched the record in vain for any such happening. As previously stated, the major portion of the stipulation was beneficial to the accused and it may have been obtained at his solicitation. He joined in its admission and sought its benefits. He was protected by competent counsel. No claim of privilege was exercised. He was not sworn so as to be subject to punishment for contempt or false swearing. His counsel was afforded an opportunity to object to the admission in evidence of the stipulation. The accused, in answer to the first question, stated that he did not' know the contents and the subsequent questions pursued an inquiry to determine whether at the time of trial he understood what was contained in the stipulation. He was not told he had to answer. He was not directed or importuned by the court or the law officer to commit himself. He was not in a situation where a person should or would, if properly advised, refuse to talk. The procedure was not adopted to seek any easy method of conviction, nor was it used as such. Taking into account the presence of counsel and the purposes and objectives of the inquiry, the proceedings lack any of the elements usually found in an inquisition. While we have unhesitatingly refused to affirm convictions where an undue advantage has been taken of an accused to obtain his testimony, we find nothing in this record which portrays these proceedings as anything but investigation into a collateral question of fact for the purpose of protecting the rights of the accused.
In the recent case of United States v. Welch (No. 196) 1 USCMA 402, 3 CMR 136, decided May 27,1952, we dealt with the contention that an accused was required to incriminate himself. In that case we said:
. . Nor did he advise peti*578tioner of the nature of the investigation or of the charges against him. This officer then conducted a searching and inquisitorial examination, utilizing all the devices of an expert prosecutor cross-examining a hostile witness, accompanied by-shouting, accusations of falsehood, reprimands, and castigations of character. All these factors inevitably lead to the conclusion that petitioner was, in effect, compelled to incriminate himself. This smacks too much of Star Chamber proceedings. Petitioner did not have a free choice to admit or deny his guilt or to refuse to answer the questions asked.”
The test laid down in that case is summarized in the statement that accused did not have the free choice to refuse to answer the questions asked. A contrary showing is made here. Both he and his counsel had a fair opportunity to raise any objection to the questions asked but they seemed quite content to get the stipulation into the record. While the proceedings were j'udicial and might cause the accused to believe he should respond to the questions this standing alone does not amount to compulsion. It is a fair assumption that had anyone directed the law officer’s attention to the fact that his statements were couched in questionable language the questions would have been rephrased and the error, if any, corrected. Clearly, no one participating in the trial considered the inquiry compelled the accused to furnish evidence upon which a conviction could be based as the question was raised for the first time on appeal. We therefore hold that whatever error found its way into the record was not so flagrant as to deny to the. accused the right granted to him by the Code.
For the foregoing reasons we hold that the board of review erred in reversing the cause on the grounds stated. The record is returned to The Judge Advocate General of the Army with directions to forward it to the board of review for action not inconsistent with this opinion.
Chief Judge Quinn concurs.CM 349913.