(dissenting):
I dissent.
Unlike my brothers, I am of the view that the record establishes that the ac*720cused was deprived of his right to be represented by counsel in his trial by general court-martial. True it is that, rightly or wrongly, he elected to discharge appointed military and individual civilian counsel because he no longer had any faith in their competency to defend him. Contrary to the principal opinion, however, it nowhere appears in the record that he desired to represent himself or was offered new appointed counsel. The closest reference in the transcript is an inquiry by the law officer whether the accused knew “any particular counsel” he would like to have, and the answer: “Not in mind, sir.” While the law officer on several occasions attempted to ascertain if Howell desired to proceed in the case without any attorney, the accused’s replies uniformly indicated only that he did not wish to be defended by counsel previously appointed and retained. No effort was made by anyone at any time to clear the matter up and to offer the accused an opportunity to have other counsel appointed. Thus, it is clear that his rights were prejudicially invaded. United States v Bell, 11 USCMA 306, 29 CMR 122; United States v Kraskouskas, 9 USCMA 607, 26 CMR 387.
It is true, as we noted in Kraskouskas, supra, that an accused may insist upon defending himself and waive his right to be represented by an attorney. Adams v United States, 317 US 269, 87 L ed 268, 63 S Ct 236 (1942). Here, however, that situation is not present, for the record depicts no waiver of the right to counsel, but, rather, a desire not to .be involved with those previously connected with the case. That was the conclusion reached by the board of review. And see United States v Gutterman, 147 F2d 640 (CA 2d Cir) (1945). The board’s rationale is supported by the record, and I would affirm their findings here. United States v Alaniz, 9 USCMA 533, 26 CMR 313.
Completely apart from the foregoing, however, I believe that we must order a rehearing. While the question certified to us deals only with the question of counsel, we may also reach any other questions which materially affect the rights of the parties. Rules of Practice and Procedure, United States Court of Military Appeals, Rule 4. Scrutiny of this record indicates that it is based substantially upon the use of written depositions taken under circumstances which denied to the accused the right of confrontation. Absent application of the doctrine of waiver, use of such depositions requires reversal of the findings of guilty to which they relate. United States v Jacoby, 11 USCMA 428, 29 CMR 244; United States v Petterson, 11 USCMA 502, 29 CMR 318. At the time the taking of the depositions was ordered, accused noted in writing that he objected to the use of written interrogatories and desired the personal presence of his purported wife at the trial on the basis that he was “entitled to face his accusers.” That written objection formed a part of the deposition presented to the law officer and admitted in evidence at accused’s rehearing. The same objection was orally presented at accused’s original trial, and I think it can be asserted unequivocally that the only reason it was not vocally repeated at the rehearing is the fact that accused was not there represented by counsel.
Surely, we cannot hold that the failure of this untutored accused to advance an objection based upon a purely legal proposition constitutes a waiver, particularly when that objection had been twice before asserted by his counsel. We have repeatedly refused so to act in trials by special court-martial on the sole basis that the defendants in those trials were not represented by legally qualified counsel. United States v Kelley, 7 USCMA 584, 23 CMR 48; United States v Beer, 6 USCMA 180, 19 CMR 306. By a parity of reasoning, it would seem even less sensible to enforce the rule requiring objection when an obviously untrained and naive defendant is engaged in the hazardous task of defending himself. See United States v Kraskouskas, supra, at page 610.
A similar case was recently decided before the United States Supreme Court. In Hudson v North Carolina, 362 US —, 4 L ed 2d 1500, 80 S Ct — *721(1960), the Court was confronted with the plea of a defendant that he had been denied due process by the failure of a state court to appoint counsel to represent him on a felony charge. Reversal was ordered, not because of the failure to appoint counsel, but in view of the fact that, in the absence of counsel, no one at the trial took any action to purge the error inherent in permitting a codefendant to plead guilty in the presence of the jury which also heard the petitioner’s case. Of that situation, Mr. Justice Stewart stated:
“The post-conviction court made no finding specifically evaluating the prejudicial effect of Cain’s plea of guilt and the trial judge’s subsequent failure to give cautionary instructions to the jury. In any event, we cannot escape the responsibility of making our own examination of the record. Spano v New York, 360 US 315, 316, 3 L ed 2d 1265, 1267, 79 S Ct 1202. We hold that the circumstances which thus arose during the course of the petitioner’s trial made this a case where the denial of counsel’s assistance operated to deprive the defendant of the due process of law guaranteed by the Fourteenth Amendment. The prejudicial position in which the petitioner found himself when his codefendant pleaded guilty before the jury raised problems requiring professional knowledge and experience beyond a layman’s ken. Gibbs v Burke, 337 US 773, 93 L ed 1689, 69 S Ct 1247; Cash v Culver, 358 US 633, 3 L ed 2d 557, 79 S Ct 432.” [Emphasis supplied.]
In like manner, the objection, the lack of which is here said to serve as the predicate for enforcement of waiver, required technical knowledge beyond accused’s ken. Accordingly, I would give effect to the claims previously interposed by his counsel and apply the rule set forth in United States v Jacoby and United States v Petterson, both supra.
I would affirm the decision of the board of review.