(dissenting):
I dissent.
Unlike my brothers, I deem the circumstances of this record sufficiently unusual to find that the accused’s substantial rights were materially prejudiced.
Tried by general court-martial, the accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. Intermediate appellate authorities affirmed, and we granted review on the issue whether the law officer erred prejudicially in permitting a prosecution witness, who was also an alleged co-principal, to testify on direct examination, and over objection, that he had already been convicted of larceny for his part in the offense.
The accused was a squad leader in a recruit training company. On the evening of the alleged incident, he, accompanied by Privates Law and Goodwin, gathered up the clothing of a number of recruits and removed wallets from the pockets. The wallets and their contents were apparently divided among the three men. On the following morning, the owners of the property reported their losses, and an investigation ensued. It disclosed the foregoing information as well as the location of the missing wallets and their contents. At the trial, the accused testified he was intoxicated and admitted he had played a leading role in gathering the clothing and wallets. He insisted, however, he had previously warned recruits in the barracks concerning the danger involved in not safeguarding their wallets and had drunkenly gathered up the items solely to emphasize to the victims the necessity of better securing their money. The division of the property was due to the fact that it belonged to men on different squads. The division was made on the basis of his retention of the wallets belonging to his squad members and *44the receipt by Goodwin and Law of the wallets belonging to their squads. He denied any intent on his part to steal the property involved and stated that his failure on the following morning to make a report of the matter was due to the fact that the investigation of the losses had commenced and his consequent fear he would be accused of larceny.
During the presentation of its case, the prosecution adduced the testimony of accused’s alleged co-actors, Law and Goodwin. Both were permitted to testify on direct examination that they had pleaded guilty to larceny of the wallets and their contents and had been found guilty in accordance with their pleas. The defense objected only to the trial counsel’s interrogation of Goodwin concerning his plea and conviction, and it is solely with the law officer’s adverse ruling on that objection that our grant of review is concerned.
My brothers concede it was error for the prosecution to introduce evidence that one of accused’s alleged accomplices had been convicted of the same crime. With that conclusion I agree. Manual for Courts-Martial, United States, 1951, paragraph 1405; Leroy v Government of Canal Zone, 81 F 2d 914 (CA 5th Cir) (1936); United States v Toner, 173 F 2d 140 (CA 3d Cir) (1949); Babb v United States, 218 F 2d 538 (CA 5th Cir) (1955); and cases collected in Annotation, 48 ALR 2d 1016, at pages 1025-1027. However, their belief that no prejudice ensued ignores both the rationale of the rule excluding such evidence and the use to which the accomplices’ plea and conviction were put by at least one member of the court-martial.
In United States v Toner, supra, the 'Circuit Court of Appeals pointed out that evidence of an accomplice’s guilty plea and conviction is logically relevant to prove his co-principal’s guilt. However, it stated the reasoning for the rule excluding such evidence to be as follows:
“The foundation of the countervailing policy is the right of every defendant to stand or fall with the proof of the charge made against him, not against somebody else. . . . The defendant had a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.” [173 F 2d 140, at page 142.]
An examination of the record in this case discloses the following colloquy between a member of the court and the witness Goodwin following the latter’s disclosure of his plea and conviction:
“Q. I believe that you testified that you pleaded guilty to grand larceny, and that you were so tried. Now did you plead guilty because you felt that you were guilty of grand larceny?
“A. Yes, sir, I did.
“Q. There’s no question in your mind you were guilty of grand larceny?
“A. Yes, sir, I was.
“Q. And that’s why you pled guilty ?
“A. Yes, sir.
“Q. And that is in connection with this incident in which you were associated with the defendant?
“A. I don’t understand your question, sir.
“Q. Well, it — you pleaded guilty to grand larceny on — because of your actions of that particular night in which you were involved with the defendant ?
“A. My actions, yes, sir.
“Q. You didn’t plead guilty for something you did three days before that or after that?
“A. No, sir.
“Q. It was because of what you did that night?
“A. Yes, sir.
“Q. When you were the defendant?
“A. Yes, sir.” [Emphasis supplied.]
The court member’s questions as well as the answers he designedly obtained are convincing proof that Goodwin’s plea and conviction were used for the very purpose for which they were inadmissible — as evidence of this accused’s guilt. United States v Toner, supra. Indeed, the interrogation of Goodwin *45by the member could have no other purpose than to parade before the other members of the court-martial the forbidden inference. Nor does it matter that there was no objection to the member’s questions, for, as pointed out by the majority opinion, the error in introducing evidence of Goodwin’s plea and conviction was appropriately preserved. I advert to the quoted examination only to demonstrate its prejudicial impact.
Despite the effect of the law officer’s ruling thus shown in the record, my brothers find its impression negligible in view of their conclusion that the evidence of guilt is compelling. I am quite unable to join in that view. The accused’s story is not so incredible that the record may be characterized as permitting no finding other than that of guilty. It may be true that none of us would accept his version of the incident were we sitting as members of the court-martial. However, we are appellate judges, and if it can be fairly stated that his testimony may have been true, we are not at liberty so to reject it. In my opinion, it is quite possible that a drunken, inexperienced squad leader, under the circumstances demonstrated in this record, might decide to utilize the method allegedly employed here in order to teach careless recruits a practical lesson. His admittedly intoxicated state might lead to many errors in the division of the wallets. That his accomplices thought otherwise does not make his story unbelievable as a matter of law, for we are taught that their testimony must be received with caution. Manual for Courts-Martial, supra, paragraph 153a; United States v Allums, 5 USCMA 435, 18 CMR 59. In short, I am not convinced that accused’s guilt of larceny is so glaringly demonstrated that we may cavalierly dismiss his sworn declarations.
As I am certain that Goodwin’s plea of guilty and conviction were improperly introduced by the trial counsel and utilized by at least one member of the court as a means of securing Humble’s conviction, I believe the error was prejudicial.
I would reverse the decision of the board of review.