(dissenting):
I dissent.
It is axiomatic in most civilian jurisdictions that the judge, and certainly in the military that the law officer, may not 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 lead the court-martial to believe the accused should testify. Therefore, it follows logically that a suggestion of the law officer in open court that he believes the accused might be able to furnish answers to the questions propounded to other witnesses by defense counsel is violative of accused’s rights if he later fails to testify.
The board of review considered the law officer’s comment to be error but concluded it had no impact on the court-martial because the issue of self-defense was not raised. In its opinion, the board rationalized:
“. . . Had there been the slightest suggestion in the evidence that the accused acted in self-defense, the court, bearing in mind the law officer’s comment, may have waited to hear from the accused on that matter, and upon his failure to testify, may have made an adverse inference because of his silence. But, as discussed hereinabove, it was plain that the accused was not acting in self-defense. A request for an instruction as to that defense was denied by the law officer. And when the law officer had completed his instructions at the end of the case, the defense counsel objected to them as incomplete, enumerating four instructions he claimed should have been included. Significantly the instruction on self-defense was not mentioned. Nor does appellate defense counsel urge that such an instruction should have been given.” [United States v Allinder, ACM 14486, November 4, 1957.]
Unless I misinterpret the language of the board, it did not go far enough to reach the critical question. True it is that self-defense was not raised, but I suspect the court members, being reasonable persons, would speculate as to the reason why the accused did not become a witness and supply the desired information. Particularly would this be true when the law officer had invited defense counsel to furnish the evidence through the testimony of the accused. While the court members might only connect the accused’s failure to testify with an affirmative defense, that might be sufficient to cast upon him the burden of becoming a witness under pain of an adverse presumption for his failure to accept the invitation.
Yet there is another facet to this appeal, also mentioned by the board of review, which bars the accused from obtaining a reversal namely, the failure of defense counsel to raise an objection to the law officer’s statement. If he had done so, I am confident the law officer would have realized his error and instructed the court-martial accordingly. Concededly, under a different factual situation, an error of the same nature could so infest the findings that a curative instruction would have no efficacy. In such a case I would, of course, not apply the doctrine of waiver. See United States v Fisher, 4 USCMA 152, 15 CMR 152. However, I cannot overemphasize the necessity of raising a proper objection to an inadvertent comment uttered during the frequent discussions which occur in trials, when timely intervention would allow the law officer to purge any possible prejudice which might flow therefrom. Language illustrative of the point I am trying to make is found in Wilson v United States, 149 US 60, 13 S Ct 765, 37 L ed 650 (1893). In that case, the district attorney made a comment upon *578the accused’s failure to testify. In the course of its opinion, Mr. Justice Field, speaking for the Supreme Court, expressed the principle that the effect of a comment on the failure of a defendant to testify could be purged by a curative instruction. I refer to this language:
. . he [the prosecutor] intimated to them as plainly as if he had said in so many words that it was a circumstance against the innocence of the defendant that he did not go on the stand and testify. Nothing could have been more effective with the jury to induce them to disregard entirely the presumption of innocence to which by the law he was entitled, and which by the statute he could not lose by a failure to offer himself as a witness. And when counsel for defendant called the attention of the court to this language of the district attorney it was not met by any direct prohibition or emphatic condemnation of the court, which only said: T suppose the counsel should not comment upon the defendant not taking the stand.’ It should have said that the counsel is forbidden by the statute to make any comment which would create or tend to create a presumption against the defendant from his failure to testify.”
A proper curative instruction could have rendered harmless the remarks made by the law officer in the instant case. And defense counsel was in the best position to know if the remark would be of any significance because he and the accused were the only persons who knew whether the latter would testify. Before the comment, the accused had taken the witness stand to testify on one of the points of law he had raised, and defense counsel led the law officer to believe the primary issue was self-defense. His cross-examination of his own hostile witness gave credence to his tactics of defense, and any reasonable law officer would have concluded an accused would, in all probability, be the principal witness to support that affirmative theory. At the time of the statement, the defense had not concluded the presentation of its evidence, and the law officer was confronted with an unusual situation. Defense counsel conceded the witness being examined did not know the answer, and yet he sought to elicit a positive statement that the victim was the aggressor. The purpose of the law officer’s comment, as I see it, was to suggest to counsel that further questioning of the witness would be unproductive, and the uncertainty bothering the defense could be rendered certain by the accused. Had the accused become a witness on the merits, the comment would not have been inappropriate. Although at the moment it was made, the remark may have been untimely, it was not a deliberate attempt to place the accused at a disadvantage. It was buried in a colloquy concerning the propriety of defense counsel’s method of attempting to elicit evidence, and no one at the trial considered the comment of sufficient importance to be noticed. Under these circumstances, to save the error for consideration on appeal, an objection was necessary.
The error herein committed is not of the variety which may not be waived because of a denial of due process. This is apparent when consideration is given to the following factors: the evidence of guilt on this specification is overwhelming, no affirmative defense was reasonably raised, the instructions cautioned the court not to consider comments by the law officer, and there is proof in the record that the injudicious statement did not cause the court-martial members to use an improper yardstick in assessing guilt, for the accused was found not guilty of two assault offenses allegedly committed at substantially the same time.
The decision of the board of review should, therefore, be affirmed.