(concurring in part and dissenting in part) :
I concur in part and dissent in part.
This case is a sequel to United States v Lovett, 7 USCMA 704, 23 CMR 168, decided April 12, 1957, and the fears I therein expressed have been realized all too soon. If Lovett is bad for a holding of infidelity without knowing the true facts, this case is much worse. Here the accused is given a new trial because it is concluded he was denied effective assistance of counsel, and that conclusion is, without doubt, based on the sheerest conjecture and speculation imaginable, for there is not the slightest shred of evidence in the record to support it. There is one statement that trial defense counsel had represented the seller of the weapon at his trial, and appellate defense counsel have affixed a mimeographed copy of a court-martial order to their brief. Therefore, every argument advanced by the Court is predicated on those two bits of evidence and, when they are given full faith and credence, I find they fall far short of supplying any evidence on the critical issue that accused received inadequate representation. While my associates find otherwise, to soften the blow it is suggested by them that the lawyer acted in good faith, but any attorney worth his salt must know he is not true to his trust if, because of prior activities, he is not free to cross-examine every witness appearing against his client. However, I am pleased for the concession of good faith on the part of the lawyer for, as I read the record, he performed his task well and his legal career should not be marred by a suspicion of bad faith, much less with a *63holding of having inadequately represented his client.
It is not easy to second guess trial defense counsel when the facts are known, but it is dangerous and sometimes not the better part of wisdom to attempt to do so on imaginary hypotheses. I suppose that, in many instances, appellate judges may find that trial lawyers who lost in the trial court could have done better. My associates believe this lawyer failed to pursue avenues of approach which were open to him and, to support their view, they question his failure to cross-examine. In order to give to the reader a fair opportunity to assess the merits of their argument, I find it necessary to relate a few facts. This accused was charged with unlawfully purchasing a pistol, knowing the same to be stolen. The pistol was purchased on April 2, 1956, from one Horace J. Fields, who had stolen the weapon from a battalion guardhouse several months before the sale. The identity of the thief was not discovered until the weapon was recovered from the car of one Sergeant Edwards, on April 11, 1956. He was in an embarrassing situation trying to explain the presence of the stolen pistol in his car, but he had given the accused a ride the night before and, when he consulted with the accused, the latter admitted leaving the weapon in the automobile. An investigation was then launched, and it resulted in Private Fields being charged with the theft of the pistol and its unlawful sale, and the accused being charged with unlawfully purchasing the weapon. In the course of the investigation, both made pretrial statements and both testified under oath at the pretrial hearing which was subsequently held. In that hearing, they were represented by First Lieutenant Lawrence R. Trapp, not the lawyer presently involved. The hearing was held on April 21, 1956, and this is their sworn testimony as summarized by the officer conducting the hearing. Private Fields states, “That on or about 2 April 1956 he was in Columbus, Ga. with Pvt Nelms and Sp3 Thorton at the Cheerio club and that he sold Thornton a .45 calibre automatic pistol for $20.00. That he had stolen the pistol from the 6th Battalion guard house several months ago, about September while he was on guard one night. . . . That he told Thornton the pistol was stolen at the time he sold it to him.” This testimony is consistent with his earlier pretrial confession. It .is to be noted that under oath he confessed to the stealing and the sale; he identified the accused as the purchaser; and he stated he had informed the accused at the time of the sale that the weapon was stolen.
In the same hearing, the accused testified, and this is the officer’s sum-marization of his sworn testimony: “That he met Fields and Nelms at 6th Street and 8th Avenue in Columbus, Ga., on the night of 2 April 1956 and that they went to the Cheerio Club on 4th Avenue. That he had a pint of whiskey with him at the time; that they sat down at a table in the club and that he and Nelms began drinking the whiskey. That Fields was complaining that he couldn’t buy anything because he was broke because of having bought an automobile. That Fields showed him a pistol and said that he wanted to sell it. I asked him where he had got it and Fields answered ‘don’t worry about it, I had it a long time.’ That he offered Fields $15.00 for the pistol, but Fields said he wanted $20.00. That he gave Fields a $20.00 bill and Fields handed him the pistol. That Nelms was dancing and messing around most of the time and couldn’t have heard everything they said. After I had bought the weapon Fields told me not to take it back to camp or I might get in some trouble. ... I knew it was an Army pistol but Fields didn’t tell me where he got it. He told me that it was stolen but not where from.” From this recitation of facts, it is beyond doubt that the accused admitted the purchase of the pistol and the knowledge that it was stolen.
I have always supposed that when counsel are appointed to represent accused persons, they are required to accept the facts as they are known by those who might be called as witnesses, and that it is a hazardous business to have them change their sworn testimony unless they have originally fabri*64cated the evidence. At least I start with that premise, and so the facts concerning the crime were fairly well molded into a fixed pattern before this counsel could advise his clients not to talk, and they pretty well limited his course of action thereafter.
Passing back to the facts which arose later in the proceedings and for the purpose of the dissenting portion of this opinion, I take judicial notice of the contents of a court-martial order attached to the brief. When I do that, I find that on May 16, 1956, Fields pleaded guilty to the theft of the pistol and its sale to the accused. Some thirty days later, the present action commenced, and the Government called him as one of its witnesses. Of course, I should mention that there is no evidence that the plea was negotiated or that Fields was granted immunity. On the contrary, the order shows he was sentenced to three years confinement with appropriate accessories, which was subsequently cut to eighteen months. Furthermore, I should state that other witnesses testified to the sale.
Fortunately for the accused, Fields had been sentenced before he was called to testify, and he turned out to be a very helpful defense witness. As a matter of intense interest, he furnished corroboration for the only possible defense available, for he modified his pretrial testimony considerably in its previous incriminating aspects, as at this hearing he testified the accused did not know the weapon was stolen until after he paid the purchase price. Trial counsel was then faced with the task of weakening Fields’ testimony and, in an effort to show he was friendly to the defense, he asked him who represented him in his trial. Fields gave the officer’s name, and it was the lawyer who was then representing the accused.
Now I personally believe it was of distinct advantage to the accused to have the lawyer who represented Fields represent him. The favorable testimony given by Fields partially argues that assertion for me, but my good associates take issue and offer these arguments to support their conclusion that the relationship was charged with prejudice. First they say: “Defense counsel made no effort to examine his former client on the question of whether the accused had actually purchased the weapon from him.” In answer to that, I suggest it would be most foolish for defending counsel to pursue that line of inquiry unless he hoped to add weight to the Government’s showing by having the witness repeat what could not be placed in question. It must be kept in mind that he was confronted with two pretrial statements, two admissions under oath, and a plea of guilty to establish that fact. Again they say: “He never interrogated the witness on the fact of his theft of the pistol or whether it came from a Government source.” Perhaps I misunderstand the proper method of conducting cross-examination, but I thought that was an art in which the examiner attempted to help his client by breaking down a witness’ story if it was damaging, and not to conduct artless questioning which permitted the witness to repeat testimony which could only help the prosecution. As may be apparent, the only prayer this defense counsel had for a finding of not guilty was founded on a theory that the Government might fail to establish beyond a reasonable doubt that the accused knew the weapon was stolen at the time of his purchase. If defense counsel could sustain that hypothesis, he could win, and the only two witnesses who could help him to satisfy the court-martial in that regard were the accused and Fields. Both were on record under oath, and I have grave doubts that an experienced cross-examiner would try to discredit the only two people who might be helpful by proving they were perjurers.
As I read civilian cases on this subject, I sense that they consider an issue which raises inadequacy of counsel to be in a sensitive area and that on appeal many unsuccessful litigants hurl unfair charges about their attorney. Therefore, I believe that in fairness to defending counsel, before this Court declares them to have been guilty of inadequacy, careful consideration should be given to the problems faced by them at the trial level. Representa*65tion of two persons accused of crimes arising out of one transaction is no evidence of inadequate representation, and the fact that one of the two offenders is used as a witness against the other is no proof that the lawyer did not truly represent both parties. It is quite common for attorneys practicing in the civilian criminal field to well and truly represent joint defendants even when it appears on the surface that the defenses may be inconsistent. Moreover, it is more common for one lawyer to represent both parties to a sale and purchase of stolen property for their defenses may be compatible. This case is a fine example for it is readily apparent that the accused did not have an inconsistent defense with Fields — he was in the fortunate situation that Fields could assume full responsibility and at the same time come to his aid. If I were the accused under similar circumstances, I could ask for no more favorable position. What, then, I ask, is the evidence to support a finding that the accused was denied a fair trial?
Passing from the area of prejudice to the accused, the Court wanders into the fields of tightrope walking and appearance of evil. Those are general observations and, under some circumstances, they might be defensible assertions but, in the background of this record, they are mere diversionary arguments. For the first theory to be persuasive, the position of counsel must be on a rope and not on the Chesapeake Bay Bridge. Here there is nothing to show any reasonable probability that the boundaries between the interests of the accused and retaining the confidence of Fields had narrowed to the thickness of hemp. For aught that is reasonably inferable from this record, they could be poles apart.
As to the appearance of evil theory, I merely say that that principle is predicated upon some sort of concept that an evil is presented by the record which must be stamped out without regard to its prejudicial effect on an accused. Here it is indistinguishable to me. In the case of United States v McCluskey, 6 USCMA 545, 20 CMR 261, from which the Court quotes, the question was whether an attorney who had represented an accused and obtained information could turn around and, while being assigned as trial counsel, use the communications to perfect a case against his own client. There was more than an appearance of evil in that instance and that principle was not invoked as the basis for reversal. Certainly I have no disposition to dispute the proposition that it would be a credit of the legal profession if all attorneys avoided the appearance of evil, but failure to meet ethical matters only affects guilt or innocence or a fair trial in a few instances, and this is not one. Either this accused was specifically prejudiced by having an attorney for his counselor who could not represent him properly or he is not entitled to relief. As I understand the rule followed by appellate courts, the burden is on the accused to show reasonably that his right to effective counsel was impaired. There is no such showing here and well there could not be for the record shows the accused was well and adequately represented.
I concur with the discussion concerning the value of the pistol and I would therefore permit a board of review to reconsider the sentence in the light of the diminished findings.