(dissenting):
In my dissenting opinion in United States v Sutton, 3 USCMA 220, 11 CMR 220, I set out at length the reasons for my conclusion that the majority’s interpretation of Article 49 of the Uniform Code of Military Justice, 50 USC § 624, deprives an accused in the military service of his Constitutional right to confront and cross-examine the witnesses against him. I need not completely reiterate them here. However, in view of the conflict in regard to the mental competency of the principal Government witness, I think it is appropriate to quote briefly from my opinion in the Sutton case.
“To satisfy the requirements of confrontation, at some stage in the proceedings against him, an accused must have an opportunity to cross-examine a witness by direct and personal questioning in the same manner as in court. Tested by this standard, the procedure used in obtaining the deposition in this case deprived the accused of his right of confrontation. I cannot regard the right to submit written cross-questions to an unseen and unheard witness as a satisfactory legal substitute.
“I do not read Article 49, Uniform Code of Military Justice, supra, as limiting the accused’s -right to cross-examination to the mere submission of written cross-questions to an absent witness. To me, it provides only, as did its predecessors, that a deposition may be taken by the Government, as well as by the accused. Such authority by itself in no way infringes upon the accused’s right of confrontation. Wigmore, Evidence, 3d ed., § 1398, pages 136-140. However, giving the prosecution the right to take deposition testimony is one thing, but denying an accused a full opportunity of cross-examination is another.
“Almost half of the states in the United States have provision for the taking of deposition testimony at the request of the prosecution. However, it is extremely significant that, in the absence of accused’s consent, all require an opportunity for the accused or his counsel to be present at the taking thereof. See Appendix A. Where the prosecution’s deposition is to be taken at a distant place, the Government must pay the reasonable expenses of the accused or his counsel incident to attendance. Mo. Rules *349Crim. Proc., Rule 25.13; Page’s Ohio Gen. Code Anno., §§ 13444.13, 13444.-14; Wise. Stat. (1951), § 32606. Only three states permit the prosecution to take the deposition of a distant witness on written cross-interrogatories. But, even in those states the prosecution may use such interrogatories, and limit the accused to cross-examination by cross-interrogatories, only if that method of procedure is first used by the accused. New York Code of Crim. Proc., § 645, et seq.; People v Werblow, 205 NYS 617, 123 Misc 204, aff'd 212 App Div 445, 209 NYS 588, rev’d on other grds., 241 NY 55, 148 NE 786; People v Parkinson, 187 Misc 328, 63 NYS2d 903; see also Ind Stat Anno (Burns), §9-1610; Maine Rev Stat (1944), chap 135, § 23; 9 Anno L Mass § 277: 77. The latter practice is, of course, justifiable as a waiver by the accused of the right of confrontation. Diaz v United States, 223 US 442, 56 L ed 500, 32 S Ct 250.
“This unbroken line of legislative recognition of the requirement of personal and direct questioning of a witness, to satisfy the right of confrontation, surely lends strength to the conclusion that Congress did not intend by Article 49, Uniform Code of Military Justice, supra, to abolish the requirement for an accused in the military service. The hearings before the House Subcommittee of the Committee on Armed Services considering the Uniform Code (H. R. 2498) reinforces that conclusion.”
I would, therefore, set aside the findings of guilty of specification 1, Charge I, and specifications 1 and 3 of Charge III, and the sentence.