(concurring in part and dissenting in part):
I concur in part and dissent in part.
Were it not for the fact that this decision announces bad law, I would not, in light of the disposition ordered, bother to outline my position. Certainly, insofar as this accused is concerned, our discussion of the issue that divides the Court is unimportant and academic, for he ends up precisely where he started. However, we make law for application in subsequent cases, and I, therefore, deem it appropriate to set forth my views briefly.
While I concur generally with the other concepts announced, I dissent from that portion of the opinion which holds that error was committed by the law officer when he permitted the prosecution to cross-examine the accused on the adulterous relationship with his paramour. I believe it to be a well-established rule of evidence that an accused cannot take the stand on his guilt or innocence of one particular offense and thereafter bar cross-examination on matters going directly to the essential elements of that crime or those affecting his credibility. This is so even though the evidence tends to prove the commission of a separate offense. Certainly, the Court’s holding in United States v Johnson, 11 USCMA 118, 28 CMR 837, is not an authority for excluding evidence which is relevant to the charge upon which the accused testified. In that instance, we were considering whether the accused waived his limitation by volunteering evidence which touched on both specifications, and here I do not contend the accused opened the door on the adultery charge. In fact, the law officer specifically instructed the court that evidence could not be used to support a finding on the latter crime, and obviously accused’s testimony could not be considered a judicial confession of adultery. As a matter of law, it cannot be used for that purpose. But that is not to say the accused can lower the bars on one specification and then keep out evidence which is competent and relevant to that offense merely because he contends it invades a field declared off limits by him. His limitations do not extend to the crimes upon which he testifies, and in that connection the present majority opinion seems to concede that evidence of meretricious relationship by a spouse is competent and material in a murder ease involving the other party to the marriage contract. Indeed, such a concession is understandable, for as Dean Wigmore states, in discussing motives for murder:
“Circumstances involving the sea;-ual passion, in one aspect or another, and usually operating through the emotion of jealousy, may lead to a desire to kill: . . [Wigmore, Evidence, 3d ed, § 390.]
Nor is it of consequence that establishing motive involves other criminality. As Wigmore states in § 389 of his treatise, supra:
*754“The criminality of the circumstances involved in proof of the motive has no doubt often been the ground of objection, the character-rule (ante, § 194) being invoked in exclusion. But it has already been seen (ante, § 216) that the fact that the circumstance offered involves also another crime by the defendant charged is in itself no objection, if the circumstance is relevant for the present purpose.”
And the following rule set forth in Un-derhill, Criminal Evidence, 5th ed, § 644, is particularly applicable in the case at bar:
“. . . The existence of an improper intimacy, or illicit or incestuous connection, or an infatuation, may always be proved to show a motive, when the defendant is charged with the homicide of a person whose existence was an obstacle to the complete gratification of his wrongful desires.”
Yet the evidence in the case at bar, despite its pertinence to the murder charge, is held to be incompetent even though the accused announced he was to be a witness on his own guilt or innocence of that crime, and the law officer charged that the evidence could be considered only as to that offense. As I understand my brothers’ concept, the testimony would be competent had the accused not been charged with adultery, but the filing of charges on that offense throws a cloak of protection around him. I cannot agree. It is indeed a new and unique rule that an offender may, by committing two crimes, change the rules of evidence or, in the alternative, prevent the prosecution from bringing him to the bar of justice for one of his delicts. Had the Government followed the rule my associates are apparently laying down and brought accused to trial separately on the adultery charge, I strongly suspect he would then claim charges had been saved up and invoke the rule that he could not be tried for that crime because all known offenses should be referred to trial together.
Finally, I can find no support for my associates’ suspicion regarding the period of time mentioned in trial counsel’s question. I merely invite attention, in light of the above-quoted authorities, to the fact that the inquiry established that the accused’s motive existed at least through May of 1958, and his wife died of poisoning on June 9 of that year.
Accordingly, I find no basis for reversing the conviction for adultery, and I would affirm the decision of the board of review in its entirety.