(concurring in the result) :
I concur in the result.
I do not join outright in the Court’s opinion because I believe one of the main principles advanced by the Court is erroneous. I have particular reference to the construction of Article 49 of the Uniform Code of Military Justice, 10 USC § 849, and the view that certain provisions of the Manual are inconsistent therewith. I will first state my reasons for rejecting the interpretation of the Article and will then set out the principles underlying my concurrence.
The Court in construing Article 49 of the Code, supra, seems to rely on a rule of statutory construction that the mention of one thing implies the exclusion of another. Thus the conclusion is reached that because the Code conferred on a convening authority the power to designate counsel to represent the parties in the taking of depositions prior to referral of charges, Congress intended to deny him that authority after they were referred. If I am right in my conclusion as to the rule relied upon, then my associates have indeed chosen a weak rod to support their interpretation. At best, it is only an aid to construction, it applies only under certain conditions, is subject to many exceptions, and should be applied with caution. Sutherland, Statutory Construction, 3d ed, § 4917. By using that rule as a means of arriving at the real intent of the lawmakers, my associates reach the doubtful conclusion that Congress intended to deny a convening authority the power to appoint counsel to assist an accused in the taking of depositions unless he does so prior to the time charges have been referred. I just cannot be driven to accept a doctrine so opposed to the beneficent purposes of the Code.
In construing the statute some consideration must be given to the reasons for its enactment and the purposes it sought to accomplish. Certainly, Congress was interested in having an accused represented by adequate counsel whenever reasonably possible. At the same time, it sought to devise a practical system for the prosecution of offenders. Before charges are referred counsel has not been selected for either *462the Government or the accused, and in order that depositions might be taken at that time, someone had to be clothed with the authority to make the appointment. Congress selected the convening authority for that purpose but from that it cannot be argued that he was thereafter barred from making further appointments. Article 27 of the Code, 10 USC § 827, states that for each general court-martial, he must appoint defense counsel. That appointment is after charges have been referred and the accused is given the right to request specific persons to aid in his defense. That seems to suggest to me that a convening authority can designate lawyers after charges are pending. Nowhere does the Code say the convening authority loses his authority to appoint counsel after the happening of that event nor does it say he can appoint only one or two officers who are on station. In my judgment, if he so elects, he may appoint a battery of officers to represent an accused and they can be located wherever evidence is to be collected. It is indeed a strange concept which holds that Congress denied to a convening authority the power to assure an accused adequate representation, regardless of where testimony might be taken. I am afraid my associates strike down a very beneficial provision of the Manual when they should be protecting it from abuse. Rather than hold the Manual is contrary to the Code, I find it is supplementary thereto and consistent therewith. It supports the purposes of the law and I concur with it wholeheartedly.
The only real ground for reversing this case is mentioned by my associates but I prefer to elaborate on their discussion. The vice in this case is not the Manual but the failure to comply with its mandates. The taking of depositions can be an orderly procedure and helpful to both parties if the basic requirements are complied with. Even though I believe a convening authority may be entitled to appoint counsel for an accused at the taking of the deposition, he must comply with the Manual requirements and make certain that counsel do likewise. Depositions can be either written or oral and anyone familiar with their taking ought to know that when written interrogatories are used there is no necessity for appointing additional counsel, for both trial and defense counsel are available to prepare the questions and answers. However, when depositions are to be taken orally at some distance from the place of trial a different situation is presented. In that instance, the Government is faced with two alternatives, namely, transporting trial defense counsel to the location of the witness or having counsel stationed there assist trial defense counsel. The latter method was employed in this instance so I turn to the rules which deal with that situation. Article 49 of the Code, supra, provides that after charges have been signed, either party may take an oral deposition unless the authority convening the court-martial for the trial of such charges for good cause forbids that form of obtaining evidence. Therefore, before a deposition can be taken legally, the matter must be submitted to the convening authority, and the record should disclose that he has ruled. It is doubtful that he can form an intelligent opinion of the best method to be pursued unless he is presented with certain information which should be required in the taking of all oral depositions, that is, the name and military or nonmilitary status of the witness whose deposition is contemplated and a statement of his expected testimony. If the matter is pro forma, routine or relatively unimportant, one method might be used while if the testimony goes to the very heart of the case, the other must be provided. Some such concept must be the base for the approach taken by the Manual. With respect to the taking of oral depositions after charges are filed, the subject which concerns us, paragraph 117 ff, Manual for Courts-Martial, United States, 1951, provides:
“If, after charges are referred for trial, depositions are to be taken on oral examination rather than on written interrogatories, each party concerned will indicate in a separate letter or memorandum the reasons for the deposition and the points desired to be covered in the oral examination of the witness. Subse*463quent to submission to and inspection by opposing counsel, the papers will be submitted to the convening authority or to the law officer (president of a special court-martial) depending upon whether the court is in session. If submitted to the law officer (president of a special court-martial), he will examine the papers and approve the taking of the deposition or refer the papers to the convening authority if it is deemed the deposition should be forbidden for good cause.”
It is to be noted that when there is to be oral examination, each party will indicate through counsel then representing the parties, in a separate letter or memorandum, the reason for the deposition and the points desired to be covered in the oral examination of the witness. When those have been prepared they will be exchanged by opposing counsel so that they will each be informed of the general nature and extent of the testimony, and its relevance and materiality to the issues being tried. That will furnish them with the necessity for and the limitations of cross-examination. After that has been done, the convening authority or the law officer or president of a special court-martial, if the court is in session, can make an intelligent determination whether the taking of the deposition should be permitted and if so whether additional counsel should be appointed. If the decision is to appoint associate counsel to act for the accused and the Government in the taking of depositions, trial defense counsel can work satisfactorily with his associate counsel as to the areas of examination and cross-examination. It is done every day in civilian cases and I know of no good reason why it should not be acceptable in the military system. On the other side of the ledger, if those requirements are not complied with, associate counsel far removed from the scene of the trial has little appreciation of the theories of the prosecution and defense and he is necessarily left in the dark as to his areas of responsibility.
This case is an example of why it is necessary to comply strictly with the law on depositions. Here the defending counsel representing accused at the trial was told that the testimony of six possible prosecution witnesses and any other people who might throw light on this case would be taken. He was far removed from their location, and he was not given their names, addresses or expected testimony. They were not avail-, able for his interrogation and neither he nor the accused could offer any helpful, assistance to the newly appointed assistant. I doubt very much that the assistant was furnished with the information in time to interview them prior to the hearing. While I conclude it is not necessary for the trial defense lawyer to be transported to all the places where evidence is- to be obtained, it is necessary that he, his client and his associate have some common meeting ground from which to start, so that the lawyer who is to try the case will be furnished with the best evidentiary tools available. In addition, the art of cross-examination is reduced to a sham if the associate defense lawyer is left as a stranger to the trial. Much of the criticism directed at obtaining evidence by deposition would be silenced if the matter was handled in the manner contemplated by the Code and the Manual, but unfortunately in this instance it was more honored in the breach than in the observance.
One other matter bears comment. There is such a thing in a criminal case as credibility of witnesses. That involves matters like inconsistent stories, convictions of felonies, bias, interest, motives to falsify, and so forth. I am at some loss to ascertain how any exploratory work in those areas can be performed if the witnesses’ identity is unknown to trial defense counsel. He ought to be furnished some identifying information, and I am certain that the consideration shown to the defending lawyer in this instance was woefully inadequate. He was quite right when he vigorously protested against the cavalier treatment he received.
In United States v Valli, 7 USCMA 60, 64, 21 CMR 186, we stated:
“The taking of a deposition by the, prosecution is not permitted in most; American civilian jurisdictions, but,1 because of the necessities of the serv*464ice, military law has permitted their use in military courts. We have upheld the right of Congress to authorize their use, but we have appreciated that for the most part they are tools for the prosecution which cut deeply into the privileges of an accused, and we have, therefore, demanded strict .compliance with the procedural requirements before permitting their use.”
Here the Government again failed to comply strictly with the requirements of the Manual, and the depositions should not have been admitted. They contained evidence involving the critical area of confessions and admissions by the accused and their impact on the court-martial was great. Prejudice is therefore apparent.
Accordingly, I agree that this case must be remanded as directed in the principal opinion.