(dissenting) :
I dissent. As to the first issue, the court-martial members have been given by statute the right to ob-ject to a ruling of the law officer on a motion for a finding of not guilty. Article 51(b), Uniform Code of Military Justice, 10 USC § 851. This Court, as in United States v Williams, 5 USCMA 197, 17 CMR 197, cited by the majority, has indicated the importance of court members being given proper instructions to guide them in the performance of that duty. The majority, while adhering to that doctrine, has proceeded to render it ineffectual by a finding of no prejudice. In my view, if the court members are to intelligently determine whether or not to object to the law officer’s ruling, they must be given appropriate instructions so that they can make an informed choice. I believe prejudice should be presumed where the court members are given no guidance in the performance of this duty.
I agree with the treatment of the second issue and the disposition it makes would be the proper one were that the only issue in the case.
The third assignment of error raises a serious question concerning the effect of the trial counsel testifying as a witness and thereafter arguing to the court-martial, in effect, that they should believe his testimony rather than that of the expert witness.
The authorities are generally agreed that the practice of a prosecuting attorney also participating in the trial as a witness is highly undesirable and looked upon with disfavor'. See cases cited in Annotation, Footnote 2, 149 ALR 1305. Cf. Wigmore, Evidence, 8d ed, § 1911. And as the case cited by the majority notes, such a practice is permitted only under “most extraordinary circumstances.” I can find no extraordinary circumstances in this case. As the majority admits, the experiment could have been performed by someone other than trial counsel.
Canon 19 of the Canons of Professional Ethics of the American Bar Association provides:
“When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”
The Supreme Court of Wisconsin in Zeidler v State, 189 Wis 44, 206 NW 872, stated:
“But we must deplore the practice indulged by the district attorney in offering himself as a witness while he was in the active charge of the prosecution. This practice offends against the canon of ethics of the American Bar Association, which, we said in Roys v First Nat. Bank, 183 Wis at page 21, 197 NW 237, states ethical considerations which must appeal to every lawyer as being sound. If such practice is to be discouraged in a civil case, certainly it is to be deplored in a criminal case. A district attorney is a quasi judicial officer, and he should emulate the high*353est ethics of his profession. If he finds that the interest of justice requires him to testify in a criminal case, he should withdraw from the active prosecution of the case, . .
In the instant case, the trial counsel did more than testify in the ease which, standing alone, would be objectionable because of the likelihood that the court members would attach undue weight to his testimony. Here, he created the evidence himself and then proceeded to testify on the only important and crucial issue in the case, i. e., whether the round could have been in the chamber of the M-l~ rifle, thereby making it a dangerous weapon. Expert defense testimony was to the effect that the round had never been in the chamber of an M-l. In an attempt to discredit that testimony, trial counsel took the stand and testified that as an experiment he had placed the round in the chamber and then extracted it. His testimony, in my opinion, was not cumulative of the testimony of Lieutenant Stanton. Lieutenant Stanton was vague in his identification of the weapon and whether the round was in the chamber.
Not only did the trial counsel testify in the case and then continue as counsel, but in closing argument he stated:
“. . . The expert on the stand testifies that marks would show up on the round. The expert examined the round and testified that there were no marks on it and that it absolutely was not in the chamber of that weapon and the only rebuttal evidence that the government could produce for that is .the fact that the trial counsel himself, prior to this witness examining the round today, did place that round in the chamber of that weapon and did pull it out and it was in there and tue feel that that goes certainly to the credibility of the loitness who will testify that in his expert opinion, not having been at the scene, he doesn’t think that this round was in the chamber.” [Emphasis supplied.]
Thus trial counsel testified for the Government, presented its case, and then argued to the court-martial members that they should believe his testimony which would serve to discredit the defense’s expert witness on the crucial point in the case. Such conduct goes far beyond a question of ethics and, in my view, is clearly prejudicial to the substantial rights of the accused.
Justice requires a rehearing. I would so order.