(dissenting):
The Government contends that the law officer’s ruling admitting the evidence of other pawnings was correct from several points of view. It maintains that the evidence was admissible to show that the accused entertained an intent to deprive the owner permanently of the camera as distinguished from an intent to deprive him temporarily of it. However, the evidence clearly does not raise any issue of wrongful appropriation.
The accused’s account of his possession of the camera excludes all criminality. Pie was either not guilty in any degree of a criminal taking, or he was guilty as charged; there were no other alternatives presented by the evidence. United States v Andis, 2 USCMA 364, 8 CMR 164. See United States v Smith, 2 USCMA 312, 8 CMR 112. Moreover, the prosecution expressly offered the evidence of other pawnings for impeachment and not to show an intent to appropriate either temporarily or permanently. Manifestly, the Government’s theory at the trial did not contemplate that the evidence was relevant to the intent element of the offense charged. Its present contention is entirely without merit. !
Three other grounds of general admissibility are advanced by the Government: (1) That the evidence is relevant in that it indicates the accused needed money, and, therefore, it shows a motive for the commission of the offense; (2) that the evidence shows a course of dealing and familiarity with the pawnshop; (3) that it tends to show a “fund-raising scheme or plan” on the part of the accused. The accused’s familiarity, or lack of fa miliarity, with the pawnshop is wholly irrelevant' and immaterial to the merits of the¡ *387ease. Hence, the prosecution was bound by the accused’s answers on that point, and it could not introduce contrary evidence in regard to it. McKenzie v United States, 126 F2d 533 (CA DC Cir) (1942); Safter v United States, 87 Fed 329 (CA8th Cir) (1898).
The third and fourth grounds suggested by the Government are essentially the same. Both relate to a probable motive for the commission of the offense. With some extention from motive to intent, these reasons are accepted by the majority as proper grounds of admissibility. Assuming that evidence of motive or intent was independently admissible under the circumstances of the case (Cf. Young v United States, 214 F2d 232, 240 (CA DC Cir) (1954)), the accused was entitled to an instruction on its limited relevancy in order to keep the court members from attributing to it a probative value which it did not possess. Orloff v United States, 153 F2d 292 (CA6th Cir) (1946); Martin v United States, 127 F2d 865 (CA DC Cir) (1942). As the Court of Appeals for the Sixth Circuit said in the Orloff case (page 295):
“However, the testimony was admissible only upon the existence of fraudulent intent. Weiss v. United States, 5 Cir., 122 F.2d 675; Wood v. United States, 16 Pet. 342, 41 U. S. 341, 352, 10 L.Ed. 987. While the request to charge was not a precise statement of the law it fairly apprised the court of the point made and required the court to charge the jury to consider the testimony only upon the question of guilty knowledge and intent to defraud the government. Richardson v. United United States, 6 Cir., 150 F.2d 58, 66. The failure to give this instruction constituted prejudicial error for which a new trial must be ordered. The appellant was entitled to a correct statement of the law from the court.”
Here, the law officer not only refused to give a limiting instruction as requested, he deliberately disregarded the prosecution’s own effort to confine the evidence to impeachment. His ruling was tantamount to a positive instruction that the court members could consider the evidence of other pawnings for all purposes. Cf. United States v Andis, supra. As a result, the court members were permitted to “use the evidence incorrectly for a different end.” United States v Villasenor, 6 USCMA 3, 10, 19 CMR 129. The law officer’s action, therefore, was error. Accordingly, I would answer the first certified question in the affirmative.
Error without prejudice does not require invalidating an otherwise proper conviction. Therefore, the second certified question asks this Court to determine whether the error deprived the accused of a substantial right. A majority of the board of review held that it did. I agree.
At the very least, the evidence of other pawnings created a strong suspicion of wrongdoing. See United States v Hubbard, 5 USCMA 525, 18 CMR 149; People v Burness, 53 Cal App2d 214, 127 P2d 623. That such suspicion would have a decided impact upon the court members in determining the accused’s guilt or innocence is self-evident. Therefore, I would answer the second certified question in the affirmative.
In addition to the questions raised by the certificate for review, the accused has asked us to review the correctness of the law officer’s instruction in connection with the accused’s testimony. The controverted instruction reads as follows:
“In connection with accused’s testimony, I want to advise the court that if you should determine that his testimony was uncontradicted, and he has not been impeached, or his explanation concerning the alleged offense of larceny is not improbable, then the witness is to be believed and the court is not at liberty to deliberately reject his testimony. However, in this connection you should especially look to the interest which the respective witnesses have in the case or its result. Where the witness has a deep, personal interest in the result of the case, the temptation is strong to color, pervert or withhold the facts. *388The law permits the accused, at his own request, to testify in his own behalf. The accused here has availed himself of this privilege. His testimony is before you, and you must determine how far it is credible. The deep, personal interest which he may have in the result of the case should be considered by you in weighing his evidence and in determining how far, or to what extent, if at all, it is worthy of belief.”
In United States v Nash, 5 USCMA 550, 18 CMR 174, we condemned a substantially similar instruction because it was “unduly emphatic about the nature of the accused’s interest.” In view of my disposition of the certified questions, however, I need not decide whether, in the circumstances of this case, the instruction prejudiced the accused. I would affirm the decision of the board of review setting aside the findings of guilty and the sentence.