(concurring in part and dissenting in part):
I agree with Judge Latimer that the *405question of the competency of one spouse to testify for or against the other must be distinguished from the privilege not to testify against the other. Unlike him, however, I cannot accept uncritically the claim that the Manual for Courts-Martial has completely wiped out the privilege of the witness-spouse to refuse to testify against the accused-spouse.
By implication at least Judge Lat-imer concedes that the Manual provision attempts to formulate a rule which would express the trend away from the rigidity of the common law and yet follow the practice of the Federal courts. Manifestly, Congress intended that the court-martial practice correspond as nearly as possible with that “recognized in the trial of criminal cases in the United States district courts.” Article 36, Uniform Code of Military Justice, 50 USC § 611. What then was the Federal procedural background against which the Manual was promulgated? Certainly it was not Rex v Lapworth, 1 KB 117 (1931), a British case which Professor Wigmore cites as an exception to his observation that the privilege is “rarely . . . denied to belong to the witness-spouse.” Wig-more, Evidence, 3d ed, § 2241. One of the primary sources which this Court has consistently recognized is the District of Columbia Code enacted by the United States Congress. United States v Eagleson, 3 USCMA 685, 14 CMR 103; United States v Slozes, 1 USCMA 47, 1 CMR 47. See also Manual for Courts-Martial, United States, 1951, paragraph 127c, which directs that in certain instances the court-martial look to the Code of the District of Columbia for the maximum punishment that can be adjudged.
Title 14 of the Code of the District of Columbia provides that “husband and wife shall be competent but not compellable to testify for or against each other.” This provision was enacted by Congress in 1901. Significantly it has never been changed in the 55 years of the drift away from the common law. Moreover, it substantially coincides with the “modern” statutes of many of the states of the United States. See, for example, Alabama Code, 1940, Title 15, § 311; Arkansas Statutes Annotated, 1947,' § 43-2020; Georgia Revised Code, 1933,- § 38-1604; Dart, Louisiana Code of Criminal Law and Procedure, 1943, Article 461; Massachusetts General Laws, Chapter 233, § 20. So much for the statutes. ;
Turning to the cases, every Federal case on the subject that I know of, and which was decided before promulgation of the Manual, has recognized the privilege. See United States v Walker, 176 F2d 564 (CA2d Cir) (1949); United States v Mitchell, 137 F2d 1006 (CA2d Cir) (1943), affirmed 138 F2d 831, cert den 321 US 794, reh den 322 US 768; United States v Levy, 153 F2d 995 (CA3d Cir) (1946); United States v Williams, 55 F Supp 375 (D Minn) (1944). In none of these cases was the witness-spouse compelled to testify. Rather fhe witness-spouse was willing to testify, but the defendant-spouse attempted to exclude the testimony. The principle to be gleaned from these cases is simply this — the defendant-spouse forfeits the privilege when he commits an offense which injures the other spouse. In essence, since he himself destroys the basis for the privilege, he loses the privilege. However, disregard or loss of the privilege by one spouse does not deprive the other of the right to assert it.
Fundamentally, recognition of the privilege is one of policy. It represents an effort to balance the community’s interest in keeping a husband and wife —and their children — together against its interest in punishing a transgression against the law. It is interesting to note that the privilege is older than the original common-law rule of incompetency. Wigmore, Evidence, 3d ed, § 2227. In the military establishment the spousal relationship has at best only an indirect effect upon military matters. It would seem, therefore, that there is little need to sacrifice the husband-wife relationship in order to protect the larger interests of the military. Consequently, I dosnot believe that the draftsmen of the/Manual deliberately established a rule,; which goes far beyond *406the rule in the Federal courts and the rule in many of the state courts. I construe paragraph 148 e of the Manual as merely depriving the defendant-spouse, but not the witness-spouse, of the privilege when the offense charged injured the witness-spouse.
Apart from my construction of the Manual, I also prefer to follow the United States Supreme Court’s determination rather than that of Professor Wigmore regarding the effect of adultery on the privilege. In Bassett v United States, 137 US 496, 506, 34 L ed 762, 11 S Ct 165 (1890), Mr. Justice Brewer, writing for a unanimous court, said :
. . The clause in the Civil Code is negative, and declares that the exception of the incompetency of wife or husband as a witness against the other does not apply to a criminal action or proceeding for a crime committed by one against the other. Is polygamy such a crime against the wife? That it is no wrong upon her .person is conceded; and the common-law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for husband outraged and betrayed, when he forgets his integrity as a. man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits ploygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is> one against her. Polygamy and.adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against su/ch relation than against the wife; and, as the Statute speaks of crimes «.against her, it is simply an,^. ^ffjrfnajt'ion of the old, familiar and just common-law rule. We conclude, therefore, that under this Statute the wife was an incompetent witness as against her husband.”
From either viewpoint I conclude that the law officer erred in compelling Mrs. Leach to testify. It is suggested, however, that there is other evidence in the record of trial to support the finding of the accused’s marriage to her. This other evidence is of three kinds. First, Mrs. Leach was called into the courtroom to enable other witnesses to see her. On each occasion she was asked to identify herself, and she did so by giving her name. These unsworn statements were plainly hearsay and inadmissible. United States v Carter, 1 USCMA 108, 2 CMR 14. Secondly, it is maintained that the accused’s paramour testified that she eventually heard that the accused was married. If this knowledge was obtained from other persons, it is plainly hearsay, and, as such, it is incompetent to prove the fact of a pre-existing legal marriage. United States v Smith, 3 USCMA 15, 16, 11 CMR 15. If the information was received from the accused, it falls within the third group. This final bit of evidence which is said to show the essential fact of a valid marriage consists of a pretrial statement by the accused in which he admitted that he was married to Betty Leach. Referring to the sufficiency of similar pretrial statements in United States v Patrick, 2 USCMA 189, 7 CMR 65, we said:
. . We have in this case the statements of accused in Exhibits 2 and 3, made August 15 and 16, 1951, that he had a wife named ‘Yvonne’ living in Chicago whom he had married July 20, 1950. Regarding these assertions as admissions — because they were of an incriminatory nature in view of accused’s marriage on March 5, 1951, to Willie Manage— they may not be relied on as proof of the first marriage in the absence of independent corroborative evidence that this marriage had ‘probably’ been contracted. Manual, supra, paragraph 140a.”
*407Finally it is contended that the privilege is personal to the witness-spouse, and consequently the ae cused cannot complain of the law officer’s refusal to recognize it. This position effectively destroys both the privilege and the policy which led to its establishment. The privilege is different from that of self-incrimination. In the latter instance, the right can still be recognized in any later criminal proceeding against the person whose right was violated. However, no such possibility exists here because the witness-spouse has committed no offense. If the privilege and the policy have any value at all, that value can be realized only by protecting the privilege in the original proceeding. See United States v Mitchell, supra.
I have strong reservations as to whether United States v Long, 2 USCMA 60, 6 CMR 60, and related cases justify disregard of the allegations of a purported violation of the Arizona statute (see United States v Ekenstam, 7 USCMA 168, 21 CMR 294), but I agree with the result reached by the majority in regard to specification 4. However, I disagree with its conclusion on specification 1.
The question of the notoriety of the accused’s relationship with Miss Burns was strongly contested at the trial. As defense counsel indicated in his closing argument: “The defense does not expect the prosecution to bring everyone in Bisbee to testify as to notoriety. What we want them to do is bring enough people down here to show it was notorious that these people were living together as husband and wife.” Instructing the court on the elements of this offense, the law officer, in part, said:
“The court is further advised that the words ‘open and notorious cohabitation’ mean the act or state of a man and woman not married to each other who dwell together in the same house behaving themselves as man and wife.”
Defense counsel objected to the instruction given on the ground that it defined only cohabitation and made no mention of the required notoriety. The accused reiterates the objection on this appeal.
Assuming that, exclusive of references to the Arizona statute, the allegations are sufficient to charge an offense under military law, the law officer’s instructions are nevertheless inadequate. As I read the military cases, they make clear that the offense of wrongful cohabitation requires a holding out to others of the relationship of husband and wife — in other words, notoriety. As the board of review in United States v Andrews, 9 CMR 667, 674, said: “It is well established that the conduct of a man and a woman not married to each other, in openly and publicly dwelling together as husband and tuife and holding themselves out as such is sufficient to constitute the offense of wrongful cohabitation cognizable as a military offense under the General Article.” (Emphasis supplied.) Here, the law officer’s instructions emphasized the fact of cohabitation. They are completely silent on the requirement of notoriety. They did not, therefore, provide a proper legal standard by which the court-martial could measure the accused’s guilt or innocence.
I would set aside the findings of guilty of all specifications of the charge and the sentence and order a rehearing.