(dissenting):
I dissent.
The majority holds that the accused’s wife was not an injured party and therefore that her testimony was erroneously admitted into evidence against him. I cannot agree. And because the far-reaching effect of the Court’s decision will make it impossible for the services to convict a serviceman for forging his dependent's allotment check, I deem it advisable to make my own position clear.
Article 36(a), Uniform Code of Mili-tory Justice, 10 USC § 836, provides:
“(a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.”
Under the authority thereby granted to him, the President prescribed paragraph 148e of the Manual for Courts-Martial, United States, 1951, which is pertinent to the problem with which we are now concerned. The rule of evidence there set forth states:
“Husband and wife are competent witnesses in favor of each other. Although husband and wife are also competent witnesses against each other, the general rule is that both are entitled to a privilege prohibiting the use of one of them as a witness (sworn or unsworn) against the other. This privilege does not exist, however, when the husband or wife is the individual or one of the individuals injured by the offense with which the other spouse is charged, as in a prosecution for an assault upon one spouse by the other, for bigamy, polygamy, unlawful cohabitation, abandonment of wife or children or failure to support them, for using or transporting the wife for ‘white slave’ or other immoral purposes, or for forgery by one spouse of the signature of the other to a writing when the writing would, if genuine, apparently operate to the prejudice of such other.”
Reference to my opinion in United States v Leach, 7 USCMA 388, 22 CMR 178, will disclose why I am satisfied we are not free to disregard the above-quoted rule. To be sure, the United States Supreme Court has since decided Hawkins v United States, 358 US 74, 3 L ed 2d 125, 79 S Ct 136 (1958), but that case does not militate against the position I take. Quite to the contrary, I believe it supports my concepts, for the Court there expressly indicated that either Congress or the Supreme Court could “change or modify the rule.” Certainly — if indeed the military rule does differ from that recently announced by the Supreme Court — Congress has authorized the difference, for the evidentiary rule prescribed by the President in the Manual is in imple*517mentation of the Code as expressly-directed by Congress. Moreover, the Supreme Court also stated it could change the rule under its rule-making power and again, insofar as military courts are involved, Congress has vested that authority in the President.
In United States v Leach, supra, I discussed at length my views on a very similar problem. Briefly, then, as I there indicated, when I apply the foregoing rule, I reach the following conclusions. Both husband and wife are competent witneses, either for or against one another. However, generally both the party-spouse and the witness-spouse are entitled to a privilege prohibiting adverse testimony. But the general rule is subject to an exception, for that privilege does not exist when the husband or wife is injured by the offense with which the other is charged. And from this it follows naturally that in those instances where there is no privilege, a witness-spouse, just as any other ordinary witness, may be compelled to testify even though he may prefer to escape doing so. And, parenthetically, I point out that these conclusions are not at all inconsistent with Hawkins, supra. As was recently observed in Wyatt v United States, 263 F 2d 304 (CA 5th Cir) (1959), the Supreme Court in Hawkins expressly noted the exception applicable where the witness-spouse was injured and, accordingly, the Court of Appeals affirmed Wyatt’s conviction under the Mann Act, on the basis “that in Hawkins the wife was not the victim and here she is. That distinction is vital.” 263 F 2d 304, 308. Moreover, in Hawkins, the Supreme Court rejected any “distinction between compelled and voluntary testimony.” 358 US 74, 77, 3 L ed 2d 125, 128, 79 S Ct 136. See also Shores v United States, 174 F 2d 838, 841 (CA 8th Cir) (1949).
Having thus briefly touched on my views as to the pertinent principles involved in this area, I pass on to consider their application in the case at bar. If the accused’s wife was injured by the forgery offenses of which he was found guilty, then obviously his conviction should not be upset, for in that event there is no privilege and thus her testimony was properly admitted. On this point I must part company with my associates for, as I shall endeavor to demonstrate, accused’s wife was indeed an injured party.
As we indicated in United States v Strand, 6 USCMA 297, 304, 20 CMR 13:
“. . . It is . . . clear that injury to a testifying spouse is not confined to physical wrong but includes injury to personal rights. See: United States v Ryno, 130 F Supp 685 (SD Calif).”
I am confident that in this instance accused’s wife suffered the latter sort of injury when he forged her endorsement to her allotment checks. Indeed, curiously enough, the Ryno case to which we referred in Strand, supra, also involved forgery of the wife’s endorsement to an allotment check. There the defense argued that the wife was not an injured party and that allotment allowances for dependents are compensatory in nature and come into the marriage as earnings of the husband and, therefore, the husband was dealing rightfully with his own property. In rejecting these arguments, the court noted “that the check was one issued by the Government for a special purpose which included an immediate benefit to the wife, the full enjoyment of which was interfered with in a very real sense,” and that in addition to constituting a fraud on the Government, interference with a dependent’s regular stipend for subsistence was certainly an interference with the wife’s rights. Thus it was held the wife was a victim of her husband’s forgery offense and that her testimony fell within the exception. And with respect to the claim that the husband dealt with his own property, the court further stated:
“The particular check was issued by the Government for a special purpose. It was never the purpose of a serviceman’s allotment that he be thereby personally enriched. It was the purpose of the Government to provide currently for the regularly recurring subsistence needs of the serviceman’s family.” [United States v Ryno, 130 F Supp 685, 690 (SD Calif) (1955).]
*518Accordingly, the court held that when the defendant intercepted his wife’s allotment check and signed her endorsement without authority, he committed the forgery charged.
Obviously, those holdings are inconsistent with the views herein announced by my associates, and the reason I believe they go wrong is because they utilize an erroneous predicate for their holding. I am sure reference to the whole of the statutory provisions will demonstrate the infirmity of their position. The basis of the allotment checks made out to the accused’s wife may be found in 37 USC § 252, as amplified by the Dependents Assistance Act of 1950, as amended, 50 USC App §§ 2201-2216. As the majority point out, that statute contemplates that servicemen receive a basic allowance for quarters. They neglect, however, to consider the entire section. For the purpose of clarity, I set forth all the pertinent portions. Subsection 252(a) of Title 37 provides:
"Except as otherwise provided in this section . . . members of the uniformed services entitled to receive basic pay shall be entitled to receive a basic allowance for quarters in such amount and under such circumstances as are provided in this section.” [Emphasis supplied.]
Thus the entitlement is not absolute, but is conditioned by the other subsections in which I believe the key to the issue at hand lies.
Subsection 252(f) sets the monthly quarters allowance to be paid to one in accused’s status as $77.10. Subsection 252 (h), however, requires that enlisted personnel make an allotment of pay. It provides in part, as pertinent to one in accused’s pay grade:
“The payment of the basic allowance for quarters provided in subsection (f) of this section for enlisted members with dependents shall be made only for such period as the enlisted member has in effect an allotment of pay not less than the sum of the basic allowance for quarters to which he is entitled plus ... in the case of enlisted members in pay grades E-6 and E-7, $80 for the support of the dependent or dependents on whose account the allowance is claimed: . . .” [Emphasis supplied.]
And subsection 252(i) states:
“The allotment required by subsection (h) of this section shall he paid to or on behalf of such dependent or dependents as may be specified by the enlisted member concerned, subject to such regulations as the Secretary concerned may prescribe.” [Emphasis supplied.]
Thus it is clear to me under the statute that the monthly $157.10 allotment checks were for accused’s wife’s support and were to be paid to her. Necessarily then, when accused forged her endorsements to the checks in question, she was injured by his crimes. The decision by the Court is, accordingly, clearly unsupported by the provisions of the above-recited statute and others which show the unqualified right of the wife to the proceeds from the check. See AR 37-104, paragraph 5-96, prescribed pursuant to the authority granted in 37 USC § 252(h).
And I point out that, although we did not there have occasion to discuss the matter, our reference to the Ryno ease in United States v Strand, supra, decided nearly four years ago, indicates we were then satisfied that forgery of her allotment check constituted an injury to the wife. I still subscribe to that view but, aside from my construction of the statute, common sense suggests to me the wife has been injured. Funds received by a wife in the form of allotments are for her current use in living. Legalistic arguments can be made that she can recoup her losses by making a claim against the Government each time her signature is forged. That' argument overlooks the obvious, for food, clothing, and housing accommodations cannot be purchased by contingent claims and, if the view is to prevail that an accused might be authorized to sign his wife’s name in view of his asserted interest, then the Government is not obligated to repay the wife. But, in all events, while the processes of proving claims against the Government go on, the wife may have the unhappy choice *519of applying for relief or going without the necessities of life. I know not what it takes to injure some people, but I venture to suggest that to all but the wealthy service wife, depriving them of the monthly sums due under the allotment program would not only be an injury, it would be a calamity.
Moreover, I cannot but observe in passing that the decision this day places an insurmountable obstacle before the Government and renders it impossible to prove the forgery of an allotment check by a husband over his objection. Just as in an instance where physical injuries are inflicted on a spouse in private, the payee of a, check is peculiarly qualified to testify'as to the facts. Indeed, as to want of authority, the payee-spouse, under all but the most improbable set of circumstances, would be the only witness who could testify. Even under the old common-law rule, an exception prevailed whereunder a man could not do physical injury to his wife in secret with complete immunity, and I wonder whether the same reasoning is not applicable under the facts of the ease at bar.
I would affirm the decision of the board of review.