(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree with the Chief Judge that the evidence is insufficient in law to sustain the findings of guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and that the defense was not improperly restricted in its examination of a witness with respect to the defense of entrapment. However, I am unable to join in the conclusion that prejudicial error was not committed in the receipt of a deposition upon written interrogatories executed by the criminal investigator who secured accused’s pretrial confession.
With respect to the receipt of the deposition, the record discloses that the accused objected to its admission in evidence on a twofold basis. Thus, his counsel stated:
“DC: Sir, in the taking of this deposition, which is Prosecution Exhibit 18 for identification, of Specialist Five Norman K. Holloway, the defense has become aware, in the last few days, that prior to the taking of this deposition, prosecution sent to Specialist Holloway certain documents in which I think was a letter of, something to the effect: we send you these documents to refresh your memory. Now, of course, the defense concedes that when a witness gets on the stand, even here in court, if the witness looks at documents or papers, or anything, before coming into court, and doesn’t bring them into court and refresh their memory, why the defense probably does not have any right to see those documents, but if the witness takes the stand and, from documents in their possession, does refresh the witness’ memory, it is the defense’s belief that the defense has a perfect right to request the use of these documents in order to cross-examine the witness.
“Now, in this case, the witness was sent certain documents outside of the deposition, and to which were not attached to the deposition, and whether or not this witness used these documents in testifying, what he used the documents for, I have no way of knowing, but it’s my contention that when prosecution sends out a deposition, if it sends documents to the witness, it should inform the defense counsel of these documents so that the defense has an opportunity to use the documents for purposes of cross-examination.
' “LO: I believe counsel stated, before he made his last remark, that if a witness consults or uses documents to refresh his memory before getting on the stand, then counsel for the defense does not have a right in such a situation to examine the documents, and it is only in those cases where a witness uses the documents to refresh his memory while on the stand that counsel for the defense may have a right to examine those documents. Now you tell me that you do not know whether this witness used these documents to refresh his memory, or whether he used them when he testi-*330fled. I am of the opinion that before you can successfully attack the deposition upon that point, and upon the theory which you are now presenting, you must show that the witness did not use the documents to refresh his memory while he was testifying, under your own theory of your argument here. I am asking you, is that not true?
“DC: That is true, except my feeling is this, that these depositions, as used in a General Court-Martial, are necessary because the people are very often scattered all over the world; this man is in Germany. I don’t know how the deposition was taken, when it was taken. It may have been taken by one man and the reporter who went down to the man’s unit and had him called up to the office and took the deposition, but there would be nothing in the deposition itself requiring the office taking the deposition to show whether the witness had anything in his hand or not.
“LO: Well, I can see that, but let’s forget all of these contingencies that might happen. I want to hear argument on the basis of why you object to Prosecution Exhibit 18 for identification being admitted in evidence as Prosecution Exhibit 18.
“DC: I object to Prosecution Exhibit 18 for identification because it was a written deposition, not an oral deposition, and defense counsel was not there, and it just seems to me that there are limitations by which the prosecution can use these depositions, and if the prosecution is going to send documents, and the allied papers and everything along with depositions, then the defense ought to be given the right to see these documents before he sends them. Now, this time they didn’t attach them to the deposition and I had no way of knowing what was being sent.
“LO: Were you given an opportunity to present, or to to offer cross-interrogatories, or to make cross-interrogatories of this witness prior to the deposition being sent out?
“DC: I was given the opportunity.
“LO: Did you make those cross-interrogatories ?
“DC: Yes, sir.
“LO: All right, go ahead, then.
“DC: Well, I have nothing further, except the belief that the prosecution, in order to use these depositions in a court-martial, cannot attach such documents, and the defense is satisfied with one thing, it is going to require in all cases oral deposition, and all of these people all over the world are going to be traveling all over the place, just to make sure that they are taken correctly, and I feel that in most cases it may be unnecessary, but I just think prosecution oversteps his rights when he sends documents to the man with the notice that the deposition is to be taken, and that he can use these documents to refresh his memory for the deposition. That’s my objection, sir, I have nothing further.” [Emphasis supplied.]
In United States v Jacoby, 11 USCMA 428, 29 CMR 244, this Court ruled that depositions taken upon written interrogatories may not be used in evidence by the Government over objection by the defense. In that opinion, we stated, at page 433:
“. . . The correct and constitutional construction of the Article in question [Article 49] requires that the accused be afforded the opportunity (although he may choose knowingly to waive it thereafter) to be present with his counsel at the taking of written depositions. We so hold.”
I agree with the Chief Judge that one part of the accused’s objection went solely to the question whether it was prejudicial for the trial counsel unilaterally to forward a copy of the criminal investigation report to the prospective deponent in order to refresh his memory and that this claim of error must be overruled. It is, however, equally apparent that accused also objected to the receipt of the deposition on the basis that it was taken upon written interrogatories without the presence of the defense counsel. When *331that objection is made, the doctrine which we enunciated in United States v Jacoby, supra, must inevitably come into play and require a holding that the deposition’s use was erroneous.
Turning to the rationale of the principal opinion, it is clear that I disagree with the Chief Judge’s statement that accused’s “only objection to the second deposition was the Government’s failure to inform him that the Criminal Investigations Detachment file had been forwarded to the agent-witness.” In light of the preciseness with which defense counsel identified his grounds as including the fact that the prosecution exhibit was a “written deposition” and that it was taken when “defense counsel was not there,” it seems absurd to hold that he was not invoking the denial of confrontation as a barrier to receiving the item in evidence. I am unable so to conclude, and I cannot agree there is even room for argument on this issue.
The sole remaining question is whether the utilization of the deposition prejudiced the rights of the accused. Again, I believe it must be held that prejudice is apparent. The deposition was utilized as the predicate for the introduction of accused’s confession, which was an exhibit attached thereto. Without the interrogatories, there was no basis for its admission into evidence, and, as we have heretofore noted, such a statement “is among the most effective proofs in the law.” United States v Monge, 1 USCMA 95, 97, 2 CMR 1. While accused elected to testify in his own behalf, he expressly limited his testimony to the charge of making a false official statement. As the majority note, he judicially confessed to that offense. Thus, his “informed action in this respect served to overcome any violation” concerning that charge. United States v Woodruff, 11 USCMA 268, 270, 29 CMR 84; United States v Kelly, 7 USCMA 218, 22 CMR 8. However, that consideration does not apply with respect to the offenses of wrongful cohabitation and making a false claim for separate rations. Thus, reversal of the findings of guilty with respect to these is required.
With respect to the contention in the concurring and dissenting opinion that accused’s objection was not based upon the principle we set forth in United States v Jacoby, supra, I merely invite attention to the language quoted from the record, supra, as clearly indicative of defense counsel’s intent. Moreover, I suggest that limitation of the grounds to the position taken by my brother Latimer too narrowly delimits the scope of counsel’s grounds.
The purpose of an objection by counsel with respect to a matter of proof is reasonably to bring to the law officer’s attention the basis for the admission or exclusion of evidence. United States v Brown, 10 USCMA 482, 28 CMR 48. His language ought, therefore, to be afforded a reasonable interpretation and, perhaps, a somewhat broader scope in the case of appointed military counsel. Here, it must be remembered we deal with relatively young and inexperienced officers rather than sophisticated members of the bar whose long years of service enable them to state their ground for objection with the utmost precision. Regardless, however, of whether this circumstance is considered, it is clear that counsel here sought also to object on the basis of denial of confrontation, and the contrary interpretation simply takes too limited a view of his effort to make this apparent to the law officer.
Although not reached in the principal opinion, the reason why the erroneous use of the deposition is not cured by accused’s “judicial confession” to the offenses of wrongful cohabitation and making a false claim is simply that the admissions with respect to these offenses were extorted from him on cross-examination by the trial counsel over proper objection that the accused had expressly and otherwise limited his testimony to the charge of making a false official statement. United States v Marymont, 11 USCMA 745, 29 CMR 561; United States v Johnson, 11 USCMA 113, 28 CMR 337; United States v Kelly, 7 USCMA 218, 22 CMR 8. As the Chief Judge disposes of the deposition issue on other grounds, he does not reach this question, nor does it form a part of our grant of review. *332As I believe the deposition was inadmissible in view of the objection, I also find no need to go beyond our grant, except to note, as I have done, that a judicial statement thus obtained cannot serve to cure a previously committed error.
In sum, then, I believe the accused appropriately preserved his right to complain in this Court of the receipt of the deposition taken upon written interrogatories. In view of our conclusion in United States v Jacoby, supra, that such could not be received in evidence in the absence of a waiver from the accused, it is obvious that the law officer erred in overruling the defense objection to its introduction. That error is prejudicial under the circumstances. Accordingly, we should set aside the findings of guilty of wrongful cohabitation and making a false claim in addition to those relating to the larceny charge and order reassessment of the sentence on the remaining charges. I would order such action.