(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I concur in the results and with the reasons given in the opinion of the Court except I dissent from the holding that the Board of Review erred in concluding that the previous convictions could not be considered in assessing punishment. The Board of Review relying on our holding in United States v. Carter (No. 159), 2 CMR 14, decided January 18, 1952, held that the unsworn statements of trial counsel concerning two previous convictions could not be used as evidence and to overcome the effect of their improper consideration the period of confinement was reduced from three years to two years.
The Court holds this ruling to be erroneous and in doing so draws a fine line of distinction between this case and United States v. Carter, supra. For the reasons hereinafter given, I conclude the distinction to be more imaginary rather than real. The record indicates that during the early stages of the hearing trial counsel had himself sworn for the purpose of identifying an entry in accused’s service record. This phase of the case was ended when the witness finished his identification and the law officer directed him to resume his duties as trial counsel. The trial then continued, the taking of testimony was concluded, the trial was completed and the accused was found guilty. After the findings were announced, the law officer stated that the court would hear the personal data and trial counsel read the first page of the charge sheet. After this was finished, trial counsel stated he had evidence of two previous convictions and he proceeded to relate the details in precisely the same manner as did trial counsel in United States v. Carter, supra. Therefore, if there is a valid ground to differentiate the two cases, it could only be that in this instance trial counsel was at one time sworn as a witness. I would hold this distinction to be unimportant. The mere fact that at some previous time he had been called to testify for a limited and particular purpose, did not prevent him from returning to the status of an advocate. There certainly was a change of status after he left the witness stand, as he was not testifying, he was examining witnesses, making arguments and conducting the prosecution. At the time he made the statement concerning previous convictions nothing had been done to clothe him again in the robes of a sworn witness. He did not announce he was taking the witness stand, his attention was not called to the fact that he was under oath, he was not sworn again, and no steps were taken which would qualify his statements as testimony. Once a witness, always a witness, does not follow. I am certain no one in the court, including himself, would have concluded that he was a witness, testifying to the contents of an official document. Moreover, he did not identify any documents as being part of any official record. The summary court memoranda found in the record are part of the pretrial investigation, they are unsigned and unauthenticated, and there is no showing as to the source from which the information was obtained.
There being no valid distinction between this case and the Garter case, supra, and not being disposed to overrule that holding, I would affirm the Navy Board of Review.