(concurring in the result) :
I concur in the result.
I concur with the conclusion of the Chief Judge that the error committed by the trial counsel was the result of a misunderstanding of the law. However, I go one step further and state that counsel for both parties labored under the same mistake, and the erroneous concept was interjected into the ease by defense counsel when he objected to the introduction of certain competent evidence. As stated by the Chief Judge, the trial incidents arose in the-following manner: When trial counsel, sought to introduce photostatic copies, of two checks and the contents of two-others issued to the NCO Open Mess* defense counsel objected on the basis-that the proffered testimony was not the best evidence. The thrust of trial counsel’s comments in answer thereto was that the best evidence could not be-offered because the original checks had been returned to the accused, demand had been made on his counsel, the-documents had not been produced, and the Government could not introduce the-originals. Regarding the last-mentioned two checks, it was essential that the prosecution show they had been returned to the accused, but that had been otherwise established, and the-statements that demand had been made-on defense counsel seemed to have been of little significance at the time they were made, for no objection was made-thereto and no request was made to-have the court instructed to disregard' them. The alleged error and its prejudicial effect appear to be an afterthought on appeal. Certainly, had' defense counsel been of the opinion that the statements were improper at the-time uttered or before the trial was-finished, he had a duty to speak. Had' an appropriate objection been taken at that time, the law officer could have instructed the court members that the-accused was not required to produce-the documents, that they must disregard the comment, and that they were-not to draw any inference of guilt from the defense’s failure to produce. As-previously mentioned, part of the evidence which was introduced was not admissible until it was shown that the-original check had been returned to the accused, but that had been established— in part through accused’s admissions— and all information shown on the checks-was properly before the court. Thus,, the only possible prejudice must be assumed from the possibility that the-court members would infer that accused was seeking to conceal incriminatory evidence. That assumption is dubious in light of the posture of the-evidence of record, and trial counsel’s-statements themselves were not incrim*50inatory. Taking into account those ■circumstances, any impact on members of the court-martial is, at most, doubtful.
While the Federal civilian cases are ■divided on the question of whether comparable conduct on the part of the prosecuting attorney is error, there appears to be unanimity that, unless an ■objection is taken by the defense during the trial, the error cannot be raised ■on appeal. I prefer to base my affirmance on that ground. See Kritcher v United States, 17 F 2d 704 (CA 2d Cir).
Accordingly, I join in affirming the •decision of the board of review.