(concurring in part and dissenting in part):
I concur in part and dissent in part.
I concur in the conclusion that neither Lieutenant Peterson nor Lieutenant Freeland were investigating officers within the meaning of Article 27 (a), Uniform Code of Military Justice, 50 USC § 591, and therefore, were not disqualified for that reason for participating in the prosecution.
I dissent from that portion of the majority opinion which holds that Lieutenant Peterson was not disqualified from participating in the prosecution of the accused, Stringer, Lewis, and Shaw, on the basis of his prior representation of Holloman and Jordan and *506his prospective representation of Lieutenant Masica.
The majority has correctly concluded that the pertinent portion of Article 27(a), supra, refers to and is based upon the “conflict of interests” restriction imposed upon civilian attorneys before civilian tribunals. • The same general objective which this restriction serves in the civilian sphere characterizes its military counterpart. This salutary prohibition is designed to assure every defendant an absolutely fair trial, and, as far as possible, to insure against even a suspicion of improper motivation attaching to any person taking part in the administration of military justice.
Describing the civilian “conflict of interests” rule, the Supreme Court of Illinois declared:
"... The rule has long been firmly established that an attorney cannot represent conflicting interests or undertake to discharge inconsistent duties. , . . This rule is a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties. He should undertake no adverse employment, no matter how honest may be his motives and intentions. . . . The administration of the law should be free from all temptation and suspicion, so far as human agencies are capable of accomplishing that object, and public policy strongly demands that one who has been employed on one side should not be permitted to appear on the other side.” [People v. Gerold, 265 Ill 448, 107 NE 165. To the same effect, see Silbiger v. Prudence Bonds Corporation, 180 F2d 917 (CA2d Cir); Strong v. International Building, Loan & Inv. Union, 183 Ill 97, 55 NE 675.]
In reviewing an allegation of improper interest on the part of a district attorney, the Supreme Court of Missouri, in State v. Nicholson, (Mo), 7 SW2d 375, stated:
“It is much more desirable to retain confidence in the purpose of the courts and other officers to enforce the law by fair and just means than to try to secure convictions in all cases at all hazards.”
It is true, as indicated by the majority, that civilian appellate courts resolve problems of conflicting interests on the basis of the facts of each case. But no such problem confronts military courts when faced with the type of situation delineated in Article 21(a), supra. That Article provides:
“No person who has acted for the prosecution shall act subsequently in the same case for the defense,- nor shall any person who has acted for the defense act subsequently in the same case for the prosecution.”
The question before us is: “Did Lt. Peterson, the assistant trial counsel, act for the defense in the same ease?” The majority have concluded that the phrase “in the same case” cannot be narrowly construed without doing violence to the clear intent of Congress. Thus, in resolving the question, we are required to examine the charges in these cases and the facts upon which they are predicated, rather than merely the names and the docket numbers thereof.
The accused Stringer was charged with nine separate conspiracies to sell military property of the United States. Each of these specifications describe Holloman as a coconspirator and as a participant in the overt acts necessary to the establishment of the crimes. In three specifications Holloman is the only coconspirator named. In two of them he is described as the sole perpetrator of the overt acts. The other charges against Stringer allege nine separate larcenies of Government property and nine instances of wrongful sale of the same property. Each of the latter offenses grew out of the nine Conspiracies.
In the Shaw case, Holloman is described as a coconspirator in each of the four conspiracy specifications and as a participant in the necessary overt acts. In two of them he is the only co-conspirator named. The charges against the accused Lewiá follow the same pattern. Consequently, with sev*507enteen specifications of conspiracy before us, we find Holloman a party to the unlawful combination, and a participant in the overt acts in every single instance. Indeed, were it not for his participation in six of these instances, there could have been no conspiracy. Were it not for his activities on the two occasions affecting his overt acts alone, neither conspiracy, larceny, nor wrongful sale could have been maintained against the accused.
These conspiracies, and the substantive crimes arising out of them, were the subject of the investigation which required Holloman’s transfer from Norfolk, Virginia, to the 8th Naval District Headquarters, New Orleans, Louisiana. It was in connection with these crimes that Lieutenant Peterson was assigned as his defense counsel before charges were preferred against any of the principals. His disclosure of the circumstances surrounding the crimes to his counsel and the subsequent communication of these facts, with his consent, to the convening authority directly resulted in charges against the others and immunity for himself. In this particular, it is significant to observe that Holloman’s immunity was granted on June 12, 1952. The charges against Stringer and Lewis were preferred on the same date and those against Shaw on June 25, 1952. Under the circumstances it is obvious that the crimes of which Holloman was originally suspected, and concerning which Lieutenant Peterson was assigned as his defense counsel, were the identical crimes of which these accused now stand convicted. If the phrase “in the same case” has any meaning at all, it fits this situation to a “T.” Consequently, the appointment of Lieutenant Peterson as assistant trial counsel, and his participation in the prosecution of the charges against Stringer, Lewis, and Shaw, violated a clear mandate of Congress designed to protect the integrity of the court-martial system. Prejudice resulted as a matter of law. These convictions should be reversed, however pure Lieutenant Peterson’s motives may have been.
The majority very correctly declares that:
“ ... In a situation of this nature, defense counsel would necessarily elicit from his client numerous relevant facts and circumstances pertaining to the general matter on which the charges are based. Where several defendants are to be tried on the same charges but at separate proceedings, it must be deemed impermissible for the Government to strengthen its position with respect to the prosecution of some of the accused persons by appointing an officer to defend one and subsequently selecting him to prosecute the remainder.”
The basis of the rule is the protection of the integrity of the court-martial system, for otherwise “the Government would thus be utilizing its obligation to provide defense counsel in such a manner as to enhance its chances of obtaining convictions in subsequent prosecutions.”
After propounding the rule the majority seeks to avoid its effect by limiting its application to eases in which trial counsel has appeared for the defense in an actual trial of one similarly charged. Such a limitation presents merely a distinction without a difference. Here, Holloman was transferred from Norfolk, Virginia, to New Orleans, Louisiana, for investigation of certain criminal activities of which he was suspected. Although there was no obligation upon the Government to supply defense counsel at this point, Lieutenant Freeland, its representative, suggested to Holloman the advisability of securing counsel, and recommended the selection of Lieutenant Peterson. He explained this suggestion to Lieutenant Peterson by saying that he did not want to create a confidential relationship with Holloman by discussing the case with him. However, he carefully pointed out that if Holloman knew enough about the crimes under investigation, and was willing to testify against the others involved, he might be given immunity. Thus, it is clear that Peterson’s role as defense counsel was assigned to him not in the interests of Holloman, his client of the moment, but solely “to enhance . . . [the Government’s] chances of obtaining convictions in sub*508sequent prosecutions.” How well he discharged his duties may be gauged by the fact that after his first interview with Holloman, the Government was ready to proceed with the trials of the others. One might well ask “Just who was Lieutenant Peterson’s client?”
As the ostensible counsel for Hollo-man (the only conspirator who participated in every one of the conspiracies charged), Lieutenant Peterson obtained from his client the most complete information concerning the offenses alleged in the Stringer, Lewis, and Shaw cases. Armed with this intimate knowledge of the facts upon which the present prosecutions were based, he proceeded to represent the Government, and sustained the Goverment’s position through the testimony of his client Holloman. It would be hard to imagine a clearer ease of the appointment of a defense counsel to enhance the chance of obtaining convictions in subsequent prosecutions. According to the rule laid down by the majority, he was disqualified.
Examining the facts further, it is plain that from this dual role prejudice resulted to each of the accused. It is axiomatic that trial counsel, coming into possession of facts favorable to an accused, should either present them to the court or, at the very least, disclose them to the defense. During the course of the trial of these cases had Lieutenant Peterson discovered information tending to discredit Holloman or weaken his credibility, would he impeach his own client who testified upon his recommendation? Or would he withhold the information until he was ready to defend Lieutenant Masica, and then seek to destroy the Government’s case by impeaching its principal witness? While the record of Lieutenant Masica’s trial is not before us, and we know nothing of the facts presented to the court in that case, it is highly significant that Lieutenant Masica, represented by Lieutenant Peterson, was acquitted of the charges against him. The above questions clearly indicate to any person familiar with trial tactics, the dangers which flow from such conduct; and the mere fact that they can arise demands the disqualification of anyone to whom they even remotely apply.
“This rule is a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties.” [People v. Gerold, supra.]
Lieutenant Peterson’s representation of Jordan, named as a coconspirator with Holloman and Stringer in two of the conspiracy specifications, standing alone, would require reversive action. When added to the fact that as assistant trial counsel he also represented Holloman, his participation in the prosecution of these cases cannot be either overlooked or condoned.
Accordingly, I would reverse the convictions in the Stringer, Lewis, and Shaw cases and remand them for a rehearing. However, since this error does not affect the Jenke trial, that conviction should be affirmed.