(dissenting):
I dissent.
In my opinion, the record of trial in this case discloses a substantial basis for the board of review’s conclusion that the law officer departed from his role as a trial judge to become a partisan advocate.
The accused was found guilty of two specifications of sodomy, in violation of Unifoi-m Code of Military Justice, Article 125, 10 USC § 925, and two specifications of indecent acts with a minor child, in violation of Code, supra, Article 134, 10 USC § 934. He was also acquitted of two specifications of sodomy and two specifications of indecent acts. The sentence was approved by the convening authority. The board of review, however, set aside the findings and sentence on the basis of the law officer’s conduct during the trial and ordered a rehearing. Thereafter, The Judge Advocate General of the Navy certified to this Court the question whether the action of the board was correct.
The revolting circumstances of the offenses charged need not be set out in detail. Suffice it to say that all the offenses charged related to the accused’s alleged relations with his stepdaughter over a period of almost two years. At the time of trial, she was eleven years of age, and the prosecution’s case was based solely upon her testimony. In addition to her assertions in support of the charges, she admitted testifying falsely in the pretrial investigation; that her complaint, made to her mother about ten days after the last incident, was precipitated by anger at her stepfather for corrective measures he employed; and that the accused and her mother were frequently at odds.
The defense produced the accused as its sole witness. He categorically denied the occurrence of the events related by his stepdaughter and set forth a summary of the unhappy events which had transpired since he became his wife’s fourth husband. Fairness, however, requires the conclusion that the marital strife may be laid at the door of both parties. Following extensive cross-examination by the trial counsel, the following questioning was conducted by the law officer:
“Examination for the Court
“Law Officer : Bishop, before you leave, you have heard Donna tell her story and your story is diametrically opposed to that?
“A. Yes sir.
“Law Officer: Also in your testimony, you have indicated some soliei-*125tude for the child. Specifically one time you got some food for her and you went in to make sure she was covered. Those two occasions, anyway.
“A. On the occasion that I checked to see if she were covered, I was recalled from Midway.
“Law Officer : I am not concerned with why you did it, but you did indicate some solicitude for the welfare of the child?
“A. I don’t quite follow that word, sir.
“Q. You were interested in getting her something to eat and on one occasion you made sure that she was covered in bed?
“A. Yes sir, there have been numerous instances on that.
“Law Officer : Have you ever had occasion to discipline that child?
“A. Well sir, more or less I guess, but most of my discipline was when we would sit down at the table I used to tell her to sit down and eat and not to sit down and chatter.
“Law Officer : Did you ever strike the child?
“A. Yes sir, I spanked her twice. Once upon returning from Japan in 1955, and once at Alameda I give [sic] her a couple of swats with my hand.
“Law Officer : Could you give any reason she would make such allegations against you? This is some indication that she was not antagonistic toward you.
“A. I don’t know sir, unless it is her mother put her up to it, sir.
“Law Officer: I see.”
Thereafter, the president of the court indicated that the members desired to hear the testimony of accused’s wife1 concerning whether “the mother put the child up to this.” Mrs. Bishop was called as a witness and interrogated by the law officer. Whether he depended solely upon a list of questions handed him by the court is unknown to us, for he omitted that important document from the record, despite the injunction of Code, supra, Article 54, 10 USC § 854. Moreover, he did not exhibit any proposed questions to either counsel in order that they might interpose appropriate objections.
The examination of Mrs. Bishop was conducted as follows:
“Law Officer: Mrs. Bishop, will you describe the precise circumstances which obtained when you first learned of your daughter’s allegations which are the substance of this trial ?
“A. She came home from school. All I can remember is that the day was the tenth. She saw thát I was home. I got off early because I was not feeling well. She told me—
“Defense Counsel: I object to what the daughter might have told the mother on the grounds of hearsay.
“Law Officer: Mrs. Bishop, just tell exactly what happened. You said that you had a conversation with her ?
“A. All she told me was, ‘Promise me not to tell Joe, or I will get in trouble’. Then she told me—
“Defense Counsel: Same objection.
“Law Officer: You had a conversation and you were alone, is that correct?
“A. Yes sir. I am just telling you what she told me and that is the only thing I can say.
“Law Officer : It was on the tenth of December and she came home after school, is that correct?
“A. Yes sir.
“Law Officer : She told you about certain alleged acts involving Bishop, is that correct?
“A. Yes sir.
“Law Officer: Was there anyone else in the house at this time?
“A. No sir.
“Law Officer : What precisely did you do immediately after hearing of her allegations?
“A. I asked her again, because I didn’t believe it and I was stunned and shocked. Then I called the doctor. The doctor told me to bring her over right away so I brought her over. He called the security and told *126me to stay there. I went back to the house to get my clothes. That was the last I knew of it. I did not know he was arrested until the next day.
“Law OFFICER: You have stated that your daughter told you a certain story and you were surprised and shocked?
“A. Yes sir.
“Law Officer: Did that story reference four incidents or one incident ?
“A. Four.
“Defense Counsel: I object.
“Law Officer: Overruled. The day that she first told you about the incident her story referenced four instances ?
“A. Yes sir.
“Law Officer: Has little Donna ever seemed fanciful or flighty? Is she careless with the truth ? Has she ever shown a desire to hide behind certain facets of a story for possible reasons of protecting herself?
“A. Not that I know of.
“Law Officer: In other words what you are saying is that she is as far as you know, a perfectly normal little child and you were surprised when she related what she did.
“A. Yes sir.
Following receipt of Mrs. Bishop’s testimony, the trial proceeded to argument and instructions.
We have repeatedly pointed out the requirement that the law officer be impartial in the performance of his judicial duties. When he departs from that standard and assumes the role of partisan advocate, we have not hesitated in the past to conclude that reversal was required. United States v Ballard, 8 USCMA 561, 25 CMR 65; United States v Kennedy, 8 USCMA 251, 24 CMR 61. While such advocacy is not demonstrated simply by interrogation of witnesses to ascertain the facts of a ease or to clear up a clouded area, I am certain that this law officer’s conduct was pervaded with hostility to the accused’s cause and demonstrates his partiality as a matter of law.
My brothers believe otherwise and find a basis for their conclusion by separate consideration of the various events which transpired. Thus, they consider his conduct in four areas and determine that, in no part of the trial, did it amount to advocacy of accused’s guilt.
At the outset, the law officer’s cross-examination of the accused is dismissed as entirely “logical” in view of the testimony that there was no hatred between them and, therefore, no apparent reason for the victim to testify falsely. Indeed, it is said that the defense counsel attempted to conduct a similar examination of the accused but that the law officer prevented him from doing so by a ruling on the form of the question. These considerations beg the question presented by the certificate. We are inquiring into the conduct of the law officer to determine if it reveals partiality to the Government. Thus, it is incumbent upon us to examine his questioning of the accused to determine the possible motivation for the inquiries he made. Examination of the record, quoted supra, makes his reasoning at once apparent.
The initial question placed to the accused pointed up that the issue before the court-martial was solely one of the credibility of the victim as opposed to that of the defendant. Having established that predicate, the law officer proceeded to guide the accused into channels indicating there was no known reason for the child to make baseless allegations. Receiving answers indicating no motivation for a false complaint, he then demanded that the accused explain why the charges had been brought. When the accused replied that he did not know unless his wife “put her up to it,” the attention of the court was aroused, and the law officer permitted the spouse to be called as a witness.
Every question put by the law officer was worthy of an astute cross-examiner intent upon impaling his victim upon the horns of a dilemma. The inquiry into the motivation for the charges could lead only to a confession of guilt on the one hand or an expression of ignorance on the other. The latter was *127equally damaging, for it laid the foundation for the argument that no one had shown any reason for rejection of the victim’s testimony — a telling forensic point. The fact that the defense counsel had earlier embarked upon an unsuccessful endeavor to investigate the same area is totally irrelevant. He may be excused for his carelessness or, indeed, the prosecutor may take advantage of it in his closing argument. However, the same questions asked by a judicial figure at once place him under suspicion. That suspicion, in turn, is hardened into certainty by his examination of the wife.
The author of the principal opinion brushes lightly over the contention that the law officer attempted to support the child’s credibility with his examination of the mother. It is admitted that “there is ... a departure from approved standards of practice” although they are not set out, but it is argued the board of review overlooked the “significant fact” that the court members gave to the law officer a list of questions and that the latter inquired, at the conclusion of his examination, whether “that [was] the extent of the court’s questions.” Once again, I suggest these are irrelevant considerations. We are concerned with the law officer’s conduct, and it is from his phrasing of the questions put to the witness that the board of review found partisan advocacy. Moreover, the list of questions is omitted from the record of trial, and we indulge in the sheerest of speculation when we assume that the inquiries were made in a form proposed by members of the court-martial. Indeed, it is little short of unreasonable to say they possessed the talent to phrase questions so artfully. Certainly, we should not assume they were responsible for the queries when the law officer did not even follow the sound practice of permitting counsel to examine the written questions submitted to him by the court.
Turning to the content of the law officer’s examination of Mrs. Bishop, it is glaringly demonstrated that he was intent upon building up the victim’s credibility. Ignoring the objections of counsel, he elicited the details of a so-called “fresh” complaint involving incidents which occurred from eighteen months to twelve days prior to the date on which the child made her grievance known. Moreover, he was careful to have the mother make her reaction known, although that was a totally immaterial consideration. He ended his interrogation of the mother with the rhetorical question “that she is, as far as you know, a perfectly normal little child and you were surprised when she related what she did.” These questions were not clumsily phrased. On the contrary, they were very skillfully put. The end sought is obvious — to convince any doubters on the court-martial that the accused was indeed guilty, as the little girl was a model of propriety and Mrs. Bishop had implicit faith in her credibility.
Finally, it is necessary to consider the question whether the law officer acted arbitrarily in overruling objections advanced by defense counsel. My brothers believe “the record just does not support the conclusion” that the rulings may be so characterized. They admit that he made “no specific rulings” with respect to two objections to Mrs. Bishop’s interrogation but hold that “it is unmistakably clear he agreed with them and attempted to keep the witness from reciting the details of her conversation with her daughter.” I conclude differently. Mrs. Bishop was permitted to state over objection that her daughter told her, “Promise me not to tell Joe, or I will get in trouble.” The law officer’s questions then included statements which, considered in light of the witness’ affirmative replies, indicated the victim had told her “about certain alleged acts involving Bishop.” The story involved “four incidents.” None of the inadmissible statements were stricken, nor was any instruction given to the members of the court to disregard Mrs. Bishop’s testimony. Hence, I hardly think it proper to infer that he agreed with the well-founded objections of counsel, for he placed before the court everything sought to be excluded. Once again, my scrutiny of the record *128impels in me the belief that the law officer sought thereby to discredit accused’s denial of guilt.
These considerations convince me the law officer cast aside his judicial robes in order to join the prosecution in this •case. His examination of the accused and Mrs. Bishop, as well as his refusal to accord any recognition to the objections made by defense counsel during the testimony of the latter witness, indicate beyond cavil that his only interest was to present the alleged victim to the court as a normal, well-adjusted child and assiduously to undermine the accused’s protestations of innocence. Almost every question asked by him shouts that its purpose was to impart credibility to the little girl and to insure rejection of accused’s denials. Such participation indicates, as a matter of law, that this-officer had aligned himself with the Government. The findings of guilty establish the success with which his efforts were crowned.
I would affirm the decision of the board of review.
The issue of her competency is not before us. Hence, resolution of that question, as well as the other points presented by the record, must await the decision of the board on further review.