Opinion of the Court
ROBERT E. Quinn, Chief Judge:This is an appeal from a conviction by a general court-martial sitting in Madrid, Spain, for assault with a dangerous weapon and attempted escape from custody. The point in issue is whether the accused was prejudiced by the law officer’s statement that defense counsel could establish a particular matter “by asking the accused questions.”
As a result of a fight in a nightclub, the accused was brought to the Central Police Station in Zaragoza. Spain. He was seated upon a bench in one of the rooms. In the same room was Catalan, a policeman who had just come on duty. Catalan testified that as he went to the door leading to the street, the accused leaped upon him from behind, and attacked him with a knife. The noise of the scuffle attracted the Police Inspector. He came out of an adjoining room and saw the accused holding Catalan. He separated them with such force that both Catalan and the accused fell to the floor. The accused got to his feet and started to continue the *576fight, but Catalan apparently struck him with the stock of his carbine. Catalan then fainted, apparently from loss of blood, and the accused was subdued by several Spanish policemen.
At the trial, defense counsel attempted to raise the theory of self-defense. He contended that Catalan started the fight. To prove the point, he called the Police Inspector as a “hostile” defense witness. Examined through an interpreter, the Inspector’s testimony was vague; many answers were irrelevant to the questions. Still, it clearly appeared he was in another room when the altercation began and, therefore, he could not say who was the aggressor. After a time, trial counsel interposed an objection. The discussion that followed provides the basis for this appeal.
“TC I am going to object. 1 have been listening to this line of questioning. What are we trying to establish? What I hear is something that is completely immaterial. This man may or may not have been injured, as the photos show, some time after the events took place, of which he is accused and charged.
“If that is the case, they are completely immaterial. On other facts —if on the other hand, if we are trying to show the statement is for impeaching thee [sic] witness, we have to remember this is the defense counsel’s witness. Hostile or otherwise, we shouldn’t continue.
“DC I simply would like to point out in rebuttal to the fact that the inspector has testified he didn’t know who started the fight; nobody knows. We are in the dark as to who started the fight.
“Now, if we can show from the witness’s testimony he doesn’t know who started the fight; if we can also show that the accused was beat up, I think it is very relevant on the part of the accused — self defense. A man has a right to protect himself against a beating.
“LO Let me ask you, is it your contention, or are you trying to establish that the events that you are asking this officer to describe, occurred prior to or after?
“DC I think they are all a pattern of one act. They are closely interwoven; you can’t separate them.
“LO Are you trying to establish that the accused was beaten before any activity on his part, is that what you are trying to do?
“DC I am trying to establish from the testimony of this witness, and I think that he has already admitted he doesn’t know, the accused was fighting for his life in this police station.
“LO I think you can establish what your’re [sic] trying to establish by asking the accused questions.
“Now, if he made such and such a statement at a prior time, to that extent I sustain the objection by trial counsel.” [Emphasis supplied.]
Defense counsel did not object to the italicized remark by the law officer.1 Examination of the witness was continued.
The law officer cannot comment upon the failure of the accused to take the witness stand. Paragraph 72b, Manual for Courts-Martial, United States, 1951. Neither can he directly or indirectly indicate that the accused should or must testify.
The board of review below held the law officer’s comment was error, but it concluded the error had no impact on the court-martial because the issue of self-defense was not raised. This is too narrow a view of the effect of the statement. The remark is not limited to a matter not in issue in the case; rather it called upon the accused to testify on the merits. Speaking of a similar request, the Court of Appeals for the Ninth Circuit said, “it is error to request a defendant in a criminal case in the presence of a jury to testify or produce documents against his will, although he makes no objection *577thereto.” Himmelfarb v United States, 175 F2d 924, 944 (CA9th Cir) (1949). In our opinion, the law officer’s general instruction to disregard any comment he may have made in regard to. the guilt or innocence of the accused did not cure the error.
The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing may be ordered.
Judge FERGUSON concurs.It would seem as though the law officer meant to use the word “witness” instead of “accused.” But even if “accused” was a “slip of the tongue,” it was in fact used and remained uncorrected. We must determine its impact on the court-martial on that basis.