(dissenting) :
I dissent.
I dissent because I cannot subscribe to the conclusion reached by the majority or to the reasoning on which it is predicated.
Every court requires a prosecuting officer to exercise discriminating restraint in the presentation of evidence against an accused. He must scrupulously refrain from the use of improper methods designed to produce a wrongful conviction, because the average juror is certain that no prosecuting officer would use illegal means to obtain a conviction. Berger v. United States, 295 US 78, 79 L ed 1314, 55 S Ct 629. That trial counsel violated his Headnote 5 duty in this instance is established beyond doubt. The statement he sought to attribute to the accused was inadmissible for all purposes, for whatever its capacity to impeach may have been, it was designed to show the commission of an offense not charged in direct violation of paragraph 1380, Manual for Courts-Martial, United States, 1951; United States v. Gibson, 5 USCMA 699, 18 CMR 323. Moreover, the crime suggested by the question was not a run-of-the-mill viola-, tion, nor a mere “undesirable trait of character” as denominated by the majority. The prosecutor very clearly implied that the accused customarily indulged in detestable crimes against nature. The mere suggestion of such an offense is calculated to inflame the passions of the court, and is likely to overcome the presumption of innocence.
Finally, the majority argue that the alleged statement to Agent Burdick was meant to be exculpatory; that trial counsel was under an obligation to “include the beneficial portion of the statement when he posed the question.” A clearer case of “killing with kindness” can hardly be imagined. Our civilization has not yet become so decadent that our judicial tribunals will accept an admission of homosexuality as beneficial to the maker under any circumstances. When it is proposed as an explanation for assisting in the traffic of marihuana, it is like amputating a patient’s arm to remove a splinter from his finger.
In Beck v. United States, 33 F2d 107 (CA8th Cir) the court said:
. A trial in the United States court is a serious effort to ascertain the truth; atmosphere should not displace evidence; passion and prejudice are not aids in ascertaining the truth, and studied efforts to arouse them cannot be countenanced; the ascertainment of the truth, to the end that the law may be fearlessly enforced, without fear or favor, and that all men shall have a fair trial, is of greater value to society than a record of convictions.”
There is in the record of this trial no such clear and convincing evidence of guilt, as would justify dismissing the serious misconduct of trial counsel, as inconsequential. I would, therefore, reverse the findings of guilty and order a rehearing. See my dissent in United States v. Brumfield, 4 USCMA 404, 412, 15 CMR 404.