(dissenting) :
I dissent.
By their affirmance of this case, my brothers place the stamp of judicial approval upon a deliberate invasion by the trial counsel of the accused’s constitutional privilege against self-incrim'ination, and render ineffectual the command of military law that the accused is at his own request, but not ■otherwise, a competent witness.
Tried by general court-martial, Sergeant DeBell was found guilty of larceny by check, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and numerous specifications of uttering worthless checks, in violation of Code, supra, Article 134, 10 USC § 934. Exercising his appellate powers, the convening authority disapproved the findings of guilty relating to three of the worthless check offenses. However, he approved the sentence. Following affirmance of the remaining findings of guilty and approval of a reduced sentence by the board of review, we granted accused’s petition on the issue whether the trial counsel erred prejudicially in repeatedly making known to the court members that he had previously demanded that the •accused produce certain of the checks involved in the case.
It appears from the evidence that the •accused wrote many worthless cheeks •directed to various persons. Upon their return from the bank upon which they were drawn, the accused paid to the holders the face value of the instruments involved and recovered the original checks. At his trial, the trial counsel sought to introduce photostatic copies of two of the checks involved. He attempted to prove the existence of two other checks by the testimony of the custodian of the Noncommissioned Officers’ Open Mess concerning entries upon a club maintained register of unpaid checks.
The four checks related, respectively, to specifications 2, 4, 5, and 6 of Charge II. On each occasion on which the trial counsel sought to offer in evidence a photostatic copy of the check involved or otherwise to prove its existence, the defense counsel objected on the ground that the photostats or register entries were not the best evidence. Immediately following such objections, the trial counsel anounced in the presence of the members of the court that he had made written demand upon the accused prior to trial for the production of the documents. Other evidence was also adduced, demonstrating that the checks had been returned to the accused.
In Boyd v United States, 116 US 616, 6 S Ct 524, 29 L ed 746 (1886), the Supreme Court was initially confronted with the question whether a defendant could be required to produce incriminating documents within his possession. There, the prosecutor sought to invoke a statute authorizing the issuance of a subpoena duces tecum in such cases. In holding the statute unconstitutional, the Court concluded that the forced production of the papers would violate both the Fourth and Fifth amendments. Boyd v United States, supra, page 635. See also Wilson v United States, 221 US 361, 31 S Ct 538, 55 L ed 771 (1911).
The natural corollary of the foregoing proposition is the prohibition against informing the jury of the making of a demand upon the accused for the production of incriminating documents. McKnight v United States, 115 Fed 972 (CA 6th Cir) (1902). In that case, the district attorney sought to introduce in evidence a written copy of an agreement into which the defendant *51and others had allegedly entered for a felonious purpose. Upon objection by the defense counsel to receipt of the copy, the prosecutor traced the original to McKnight’s possession and demanded that it be produced. There was no compliance with this demand. Of the procedure, the Circuit Court of Appeals, in reversing the case, said:
“A perusal of the decisions of the supreme court shows that no constitutional right has been the subject of more jealous care then that which protects one accused of crime from being compelled to give testimony against himself. The right to such protection existed at the common law, and was carried into the constitution, that the citizen might be forever protected from inquisitorial proceedings compelling him to bear testimony against himself of acts which might subject him to punishment. In the present case the accused, in the presence of the jury, was, by direction of the court, called upon to produce the document which it was alleged contained the corrupt agreement which was the basis of the note given by irresponsible persons for the funds of the bank by McKnight’s direction. The production of such a paper would have been self-incriminating to the defendant in the highest degree. It is true, the learned judge made no order requiring its production ; but the accused, by the demand made upon Mm before the jury, after proof tending to show Ms possession of the document, was required either to produce it, deny or explain his want of possession of the writing, or by his very silence permit inferences to be drawn against him quite as prejudicial as positive testimony would be.” ril5 Fed 972, at page 981.] [Emphasis supplied.]
The vigor of the McKnight decision has remained unchallenged through the vears. Rocchia v United States, 78 F 2d 966 (CA 9th Cir) (1936); Fisher v State, 140 Neb 216, 299 NW 501 (1941); People v Sabourin, 283 App Div 722, 127 NYS 2d 506 (1954); Powell v Commonwealth, 167 Va 558, 189 SE 433, 110 ALR 90; Wigmore, Evidence, 3d ed, § 2268. Indeed, my brothers concede that the trial counsel’s declarations in the presence of the court were erroneous. However, Chief Judge Quinn concludes that prejudice to the accused’s substantial rights is not present and Judge Latimer invokes the doctrine of waiver. Cited as authority for the Chief Judge’s position are Himmelfarb v United States, 175 F 2d 924 (CA 9th Cir) (1949); Gridley v United States, 44 F 2d 716 (CA 6th Cir) (1930), and Hanish v United States, 227 Fed 584 (CA 7th Cir) (1915).
The circumstances in each of those cases safely distinguish them from the situation presented in McKnight v United States, supra, and that now before us. Thus, in Himmelfarb v United States, supra, the only question involved was whether the service upon the defendants in the presence of the jury of a subpoena duces tecum brought the McKnight doctrine into play. The Court of Appeals disposed of the matter stating, at page 944:
"... It was clearly improper for the marshal to serve the defendant in the court room in the presence of the jury; however, there is support for the court’s conclusion that the defendant did not suffer prejudice thereby, the court stating that there is no showing that the jurors knew of the service and, too, that most likely they didn’t; the court immediately quashed the subpoena.” [Emphasis supplied.]
In the Gridley case, the demanded documents were neither material nor incriminating, Gridley v United States, supra, at page 736, while in Hanish, the letters were not incriminating on their face. Hanish v United States, supra, at page 586.
Here, however, as in McKnight, supra, the documents sought in the presence of the court were the very instruments used in the crime. The failure of the accused to comply with the demand could only be taken as meaning that their production would be inimical to his cause, and it matters not that the comment resulted from a defense objection. McKnight v United States, supra. Moreover, this Court has repeatedly held that violation of an ac*52.cused’s rights against self-incrimination constitutes general prejudice and that, the breach having been established, reversal must follow. United States v Josey, 3 USCMA 767, 14 CMR 185; United States v Williams, 8 USCMA 443, 24 CMR 253; United States v Nowling, 9 USCMA 100, 25 CMR 362.
Finally, I can only regard the trial ■counsel’s conduct in this case as a deliberate attempt to invade the accused’s constitutional protection. It is a fundamental rule in our system that photostatic copies are admissible as .duplicate originals without regard to the production of the documents which .they represent. Manual for Courts-Martial, United States, 1951, paragraph 143a (1). And once a writing is shown to be in the accused’s possession, secondary evidence is admissible without requiring production of the original. Manual, supra, paragraph 143a(2). As counsel seemed otherwise well informed concerning the Manual ,-and the best evidence rule, are we to impute to him complete ignorance concerning the Manual’s succinct discussion of the doctrine? I think it more likely that he consulted this military ■vade meeitm diligently. Thus, his insistence on making a totally unnecessary demand and thrice reiterating it in the record can only be characterized as resulting from a determination, by fair means or foul, to see this accused convicted.
With regard to accused’s waiver of the point by failing to object to the matter at the trial, I can only reply that the doctrine has not been inflexibly applied by this Court. Here, we are concerned with a basic right and we said in United States v Kowert, 7 USCMA 678, 23 CMR 142, at page 682, “it would be manifestly unjust if we applied the ordinary rule of waiver.”
In sum, then, I am certain this case falls precisely within the area delineated in McKnight v United States, supra. As it constituted a deliberate invasion of the accused’s right right against self-incrimination, conferred by Amendment V, United States Constitution, and confirmed by Code, supra, Article 31(a), 10 USC §831, prejudice is apparent. United States v Williams, supra; United States v Nowl-ing, supra. As was said by the Virginia Supreme Court of Appeals in Powell v Commonwealth:
“To demand from the accused a document from which his guilt may be inferred is scarcely less harmful than to place him upon the stand and to ask him if he is guilty.” [Powell v Commonwealth, supra, 189 SE 433, at page 441.]
I would reverse the decision of the board of review with respect to their affirmance of findings of guilty of specifications 4, 5, and 6.