(concurring in the result) :
I concur in the result.
The accused was originally charged with six separate offenses, only one of which remains at this level. The law officer sustained a motion for a finding of not guilty as to one offense. The court-martial found the accused not guilty of three of the alleged crimes and guilty on the two sodomy specifications. The convening authority, upon recommendation of his staff judge advocate, disapproved the sodomy offense alleged to- have been committed on the victim White but approved the finding and sentence on the London charge. Accordingly, the appeal to the board of review involved only the one offense and, as I read the board’s opinion and the opinion of this Court, that finding is only assailable because a substantial quantity of incompetent evidence admitted in support of the other alleged offenses prejudiced the accused' as to the remaining conviction. I have no disposition to question the prejudicial impact of much of the evidence but, aside from one statement made by White, it was competent and had the law officer given the proper cautionary instruction, a different result might be required.
The error of substance grows out of the efforts of trial counsel to prove the offense with White. There is no question but what White told a prior inconsistent story and that trial counsel had a right to impeach him. As the author Judge states, when White admitted having given the previous written statement which was at variance with his testimony, the document itself was not admissible. However, in laying the predicate for possible admission of the document, the substance of the statement was necessarily brought before the court-martial, and the same admission found in the writing would, in my opinion, have no measurable impact on the court-martial members. Furthermore, I am unable to as- certain in what way the law officer’s error in holding that White’s statement furnished the corpus delicti for the one specification would have a prejudicial effect on a separate crime. Obviously the statement could not support a conviction for the offense committed with White, but that finding was set aside by the convening authority and no longer concerns us.
The prejudice to the accused that I find in the proceedings springs from two sources which, when combined, denied the accused a fair trial. The first was the method of presentation selected by trial counsel. The second was the failure of the law officer to strike certain evidence and advise the court to disregard it when proof of the White specification failed. Those deviations from proper practice can best.be. discussed after detailing one additional fact. In addition to White’s pretrial statement that accused had committed sodomy with him, the record contains the testimony of five witnesses that accused admitted to each that he had *602engaged in such an act with White. It is permissible practice— although not the best — to prove admissions or confessions before establishing the corpus delicti, but if an objection is raised, the law officer should require a statement from the prosecutor that the foundational evidence will eventually be produced. In this instance, that procedure was used and trial counsel promised to introduce independent testimony to show the probability that an offense of sodomy had been committed. For that reason, it is hardly accurate to say the evidence of the five witnesses was improperly admitted or incompetent at the time when it was offered. However, when testimony is admitted upon a contingency, care must be exercised to ensure that either the contingency comes to pass or that the evidence is stricken. Here the admissions of the accused were insufficient to sustain a finding for they were not corroborated by other independent evidence. The error, therefore, arose when the presentation of evidence was completed, for at that time the law officer should have ordered all the evidence touching on the White specification stricken and instructed the court-martial to disregard it. Undoubtedly, had not the law officer and trial counsel erred in believing the corroboration was supplied by White’s pretrial statement, the proper procedure would have been employed. However, when the case was submitted to the court-martial for deliberation, the members were led to believe that accused’s admissions and White’s statement were entitled to be considered by them without limitation. Obviously, that is a very effective way to place the accused at a distinct disadvantage. The court-martial was permitted to conclude improp- erly that one substantive offense had been proven, and when accused denied the act with White, his denial was in direct opposition to his alleged admissions to the five witnesses. If the court-martial members concluded that accused had committed one crime which he lied about — and they so found — then the probability that he falsified about the second crime would naturally arise in their minds. Proof of the latter offense was not very strong, and the error became critical.
At this time I need not consider whether the testimony which should have been stricken was so inflammatory that trial counsel should not have introduced it until the proper foundation had been erected. Neither need I decide whether an admonition to the court-martial not to consider the evidence would have cured the damage to accused’s credibility. It may well be that in some instances cautionary instructions may not cure the prejudicial effect of evidence which should be disregarded when proof fails, but in the case at bar the evidence was not stricken and there were no instructions given. I am, therefore, at liberty to believe that the evidence was used by the court members to the prejudice of the accused.
This just happens to be one of those cases which is so close to equipoise on the facts that an evidentiary error of small moment would probably throw the scales of justice out of balance. The participant London had been granted immunity. His testimony was shaken by his own previous denials of the act. He admitted falsifying to the Naval authorities, and his story of the incident had a certain aura of improbability Under those circumstances, the massive evidence on the other specification would weigh heavily against a finding of innocence on the one now remaining. Certainly, one reading the record with objectivity would be convinced that the accused was prejudiced by the error and that a rehearing should be ordered.