(dissenting):
I dissent.
The single question presented by this appeal is whether the law officer erred in not granting a motion by defense for a mistrial. While a reading of the majority opinion makes it appear that the law officer committed an egregious error in ruling against the accused, when the record is viewed in its true perspective it appears to me he ruled well within the limits of his discretion. In that connection, it must be remembered he was confronted with well-recognized alternative methods of correcting an error introduced into the record by a cantankerous witness. I need not decide whether he chose the better of the two means, for discretion permits some latitude of choice. Here, he concluded the effect of the Colonel’s testimony could be effectively neutralized by the procedure he adopted, and times without number trial judges have used the same curative process. And it is only in rare instances that they are overruled on appeal. That is as it should be, for they are better able to assess the damage inflicted by trial incidents than are appellate judges, since they are mingling with the actors and we are only reading the script. Obviously, my associates believe this to be the exceptional case but, as I read the record, a holding that the law officer abused his discretion is not warranted. In order to support the position I take, it is necessary that I develop more fully the situation which confronted him when he made his ruling.
Initially, I digress to call attention to a statement made in the Court’s opinion which would lead the reader to believe that Colonel Flemming’s rank and position might influence the court members to give his testimony more than the usual weight. The facts are that this court was appointed by a Major General who was in command of Fort Carson, Colorado. The membership consisted of officers over whom the Colonel exercised no command responsibility and, while the law officer may have been assigned to the same command, I am certain the record will show he was uninfluenced by the Colonel’s alleged importance. Certainly, when a law officer strikes the entire testimony of a superior officer and repeatedly admonishes the court that they must disregard every bit of his testimony, I have some difficulty in concluding he, the military judge, was cowed by rank. On the contrary, I find this officer displayed a commendable independence.
In United States v Richard, 7 USCMA 46, 21 CMR 172, we laid down the rule that action upon a motion for mistrial rests within the sound discretion of the law officer in the light of the circumstances existing at the time the motion was presented. With that principle as the background, I look to the record for the facts to support my views.
Colonel Flemming was called as a rebuttal witness to dispute certain testimony given by the accused. At that time, all direct testimony was before the court and the members were fully apprised of the evidence of the prosecution and the defense. Generally speaking, Colonel Flemming’s “vituperative declarations” consisted of stating that the accused had issued rubber checks; he was a psychopathic liar; and he admitted taking the money. Undoubtedly, in certain close factual situations this sort of testimony might tip the scales of justice against an accused, but here the testimony was either admissible or it was no more than cumulative of the testimony given by the accused while *592he was on the witness stand. I support those observations briefly, not because I seek to justify the presence of the questioned testimony in the record, but as stepping stones leading up to my basic premise that the inadmissible testimony of the Colonel could be easily disregarded by the court members.
It should hardly be necessary for me to advance the proposition that in a larceny or embezzlement trial, evidence which tends to show a motive for the crime is admissible. Outstanding bad checks offer a good reason to misappropriate money and, while the Colonel’s testimony in that regard was volunteered, not responsive to a question, and lacking in specificity, absent a motion to strike on one of those grounds, it was admissible. While it was subsequently stricken with the other testimony, the accused was benefited by that ruling.
The comment that the accused was a psychopathic liar was quite unnecessary, but it was merely cumulative of accused’s own testimony and the court was well aware of that characteristic before the Colonel testified. Without any doubt the accused did a much better job of tarring himself with that discrediting trait than did the Colonel. This is the record to support that assertion. The accused executed three written pretrial statements under oath, and when he was on the witness stand he admitted he lied in each instance. Manifestly, the nature of his stories points up the fact that they were fully fabricated and not the result of inadvertence or mistake. In his first statement, he asserted he had turned the collections into the Army Emergency Relief office and possessed a receipt for the payment. To support this concocted version, he submitted a false receipt. In the next written admission, he averred that he went to the office of the Army Emergency Relief and was informed by a lady that the office was closed but would be open the next day. He placed the money in his desk drawer, where it remained for about ten days. At that time, he was visited by a friend to whom he gave $255.00, and he spent the remaining $14.00. He finished off his three pretrial variations by swearing under oath to this statement:
“On or about 2 June 1958 I, Master Sergeant Jack K Grant RA 34 071 271 Headquarters Company, United States Army Garrison, Fort Carson, Colorado did receive from Captain Ircel L Carter, my commanding Officer an envelope containing $269.00 which had been collected from members of Headquarters Company, USAG, Fort Carson, Colorado for the Army Emergency Relief fund, Fort Carson, Colorado.
“I proceeded to Post Headquarters with the funds but upon arrival, there was no one in the Army Emergency Relief Office. A lady whom I assumed to be an employee suggested that I return the next day.
“On 3 June 1958, this $269.00 was used by me to pay debts which I owed at Fort Carson and Colorado Springs, Colorado. After using the money I began to wonder how I could replace it. Then I realized that the Army Emergency Relief Fund Drive could be extended thru September 1958, which would allow me ample time to replace it.
“On 18 June 1958, with the $269.00 in my mind, I went to Colorado Springs, Colorado. While walking down the street, I met a civilian man, name unknown, who wanted some money from me. the same man (civilian) followed me to the Columbine still asking for money. We sat in a booth at which time I gave him a dollar ($1.00). He stated that if he could be of any help to me at any time, let him know. I told him that a friend of mine needed a favor. He stated “name it”. I told him that this friend need [sic] a receipt showing that $269.00 in cash had been turned over to the Army Emergency Relief by me. I instructed him to write ‘Received from Headquarters Company, USAG, $269.00 for the Army Emergency Relief. Received by M. G. B. 2-6-58’.
“After he had finished writing the receipt, I picked it up, put it in my pocket, and returned to my unit,
*593“On 19 June 1958 Capt. Cook instructed me to take the receipt to the Chairman of the Army Emergency Relief Fund Drive. At this time I attached the receipt to the roster of contributors, and proceeded to Post Headquarters, turned the receipt and roster over to Major Smith.
“On 20 June 1958 I contacted Sgt. Cleveland McConnico, Headquarters Company USAG and asked him if any one asked him if he saw me transact some business in Post Headquarters (Army Emergency Relief Office) to say yes.”
As previously noted, when he was testifying in his own behalf, he admitted the foregoing versions were all false and stated that the true version was substantially as follows, which I quote from the board of review opinion:
“. . . I took the envelope containing the $269.00 I had collected to the AER office arriving about 1615 hours on 2 June which time I found the AER office closed, and was advised to return in the morning. I did not return and the money remained in my desk drawer. Sometime between the 12th and 14th of June I discovered that the envelope which contained the money was missing from my desk. I did not tell the truth in the first statement because I did not think anyone would believe me and because I was under a ‘tremendous amount of pressure’ as the result of being considered for an administrative discharge and because T had to try and delay to do something to get that money to avoid being accused of having taken it myself’. I did not steal the money. I intended to replace it. I do not expect the court to believe my story because ‘no one .... would have believed it if I had told it in the first place’. Wilson really exists but he had nothing to do with the case. It is true that I took Investigator Gardner to Headquarters for the purpose of identifying the person mentioned in my first pretrial statement even though I knew such a woman did not exist. It was not a girl friend or a man ‘name unknown’, but a soldier named Hill who wrote the fake receipt for me. I do not know why the fake receipt was made up before the interrogation of 19 June. It is true that on 4 June I told Captain Carter that I had turned in the money and obtained a receipt but did not have it with me at the time. Yes, I did have a conversation with Sergeant Mc-Connico. It occurred after I made my first pretrial statement. ‘In trying to stall for time, sir, I told him if anyone asked if he had seen me on the 2nd of June, whether or not he had taken me to Post Headquarters, to say he had.’ I cannot explain why I made up the fake receipt prior to my pretrial statement of 19 June.”
In addition to all of the foregoing on the larceny offense, the accused admitted furnishing false information in his claim for a quarters allowance. Certainly, when accused left the witness stand there was little doubt about his proclivity for not telling the truth.
The third item furnished by the Colonel, concerning accused’s admission of taking the money, was consistent with two of his pretrial statements and was clearly admissible unless, as my associates contend, a violation of Article 31, Uniform Code of Military Justice, 10 USC § 831, is involved. I need not argue whether an accused in his testimony can deny having a conversation with a third party and then bar the Government from showing the true fact, particularly when there is no objection. But that is all beside the point, for to assert the accused’s statutory right was violated in this instance is no more than “boot strap” reasoning. That contention assumes a fact entirely contrary to the record. Here the Colonel’s testimony was not before the court as it was stricken and the court was directed that the admission could not be considered. Had. the evidence been left for the court to consider, then Article 31 might be of importance, but our problem is solely whether the court-martial responded to the instructions of the law officer and disregarded all the testimony of the Colonel, including the inculpatory admission. I, therefore, pass on to consider that question.
The majority opinion quotes the testimony of the Colonel and then states *594generally the action of the law officer. I prefer to go further and quote his directions to the court and defense counsel’s reply to a question concerning the admonition. Parenthetically I mention that the accused was represented not only by certified military defense counsel but, in addition, by individual civilian counsel who was a member of the Colorado State Bar:
“IC: I move that all of that answer pertaining to anything other than this be stricken as being highly prejudicial to this accused.
“LO: Your motion is granted. That portion of the witness’s testimony regarding previous offenses allegedly committed by the accused will be stricken from the record and disregarded by the court.
“IC: And the court be directed to disregard it.
“LO: That is correct. The court will disregard it.
“TC: The prosecution at this time waives opening argument.
“IC: For the record, if the court please, I think that on Colonel Flem-ming’s testimony the defense moves for a mistrial. I might elaborate on that. If I could assure myself that the members of this court could erase all of that prejudicial and erroneous narrative testimony from the record, I would be pleased to carry on with this. However, I will leave it up to the law officer, but for the record I do wish to move for a mistrial.
“LO: Before ruling on the defense motion, the court will recess for ten minutes.
“The court recessed at 1440 hours, 5 September 1958.
“The court opened at 1445 hours, 5 September 1958.
“PRES: The court will come to order.
“TC: Let the record indicate that all parties present prior to the recess are again present.
“LO:The motion of the defense for a mistrial will be denied. In connection with the testimony of the last witness, Colonel Flemming, the court is admonished to disregard the answers elicited to the questioning of the last witness. It is not to be considered as evidence in this case and will not be considered by the court in reaching a finding in the case. It will be stricken from the record. Proceed. I believe prosecution has waived opening argument.
“One more thing, does the prosecution or defense have any objections to the admonition given the court?
“TC: Prosecution has none.
“IC: Defense has none, sir.
“PRES: The question comes up in some of the minds of the court members, would it be possible to clarify this to have read just that portion of the last witness’s answers which is allowable or has bearing on this case ?
“LO: No, sir; in my instruction to the court I meant to imply that the entire testimony will be stricken and disregarded by the members of the court.
“PRES: That answers the question.”
In his final instructions, the law officer again admonished the court in the following language:
“LO: The court is advised that it will disregard the testimony of the witness called in rebuttal by the prosecution, Colonel Flemming; the testimony will be disregarded in its entirety and not considered in the court’s determination of the findings in this case.”
I acknowledge the philosophical question from People v Deal, 357 Ill 634, 192 NE 649, and agree that “the human mind is not a slate, from which can be wiped out, at the will and instruction of another, ideas and thoughts written therein.” However, in that instance there was no instruction by the judge to disregard the inflammatory statements of the district attorney, and the ideas and thoughts given to that court were not reinforced by similar notions and impressions furnished by the defendant. In this case it would be easy to wipe out the thoughts and ideas of the Colonel, for there remained written on the slate in bold relief the accused’s own inscription of his lack of veracity.
It is sometimes most difficult to aseer-*595tain the effect of inadmissible testimony on a trier of fact, but here all the indicia, together with the action of the court-martial, bespeak a total absence of harm. Defense counsel was not unduly concerned about the impression made by the Colonel, for he candidly announced he was making the motion for the purpose of saving the record and he would leave to the law officer the method of curing the asserted harm. But the best measuring rod for any prejudice flowing out of this sort of trial incident is the findings and sentence of the court-martial. The accused was charged with larceny, which allows a maximum penalty of five years confinement, total forfeitures, and a dishonorable discharge. In addition, he was tried for making a fraudulent application for quarters allowance in an amount more than $50.00, which permits a similar sentence of dishonorable discharge, total forfeitures, and confinement of five years. Totaled together, for the charges alleged the accused could have been sentenced to a dishonorable discharge, ten years confinement, and total- forfeitures. The court could have hardly been prejudiced by the uncalled-for remarks of the Colonel, for it reduced the larceny charge to wrongful appropriation, assessed only a bad-conduct discharge, and imposed confinement and forfeitures for a period of one year. In the light of the accused’s false statements under oath, his voluntary pretrial confession, his false information in his Class Q allotment application, his presentment of false receipts, his attempts to involve his friends by inducing them to falsify and forge receipts, and his devious methods to escape detection, the court-martial in its findings and sentence showed commendatory restraint. Significantly enough, my brothers do not deny the evidence is overwhelming and compelling. On the contrary, they tacitly admit such is the case. With that concession and with full knowledge of the leniency extended to the accused by the court-martial, I fail to understand why they conclude the court-martial members could not and did not comply with the reiterated and positive admonitions of the law officer. Certainly, unless my associates intend to reject the principle that the ruling of a law officer on a motion for mistrial will not be reversed unless he abuses his discretion, this finding and sentence should be affirmed. They are not and, in view of the present holding, I can only assume the law officer’s discretion to rule against the accused is narrowed to a filament so fine that it fades into nothingness.
I would affirm the decision of the board of review.