(dissenting):
I dissent.
With due respect for their conclusion that accused was not prejudiced by trial counsel’s cross-examination of the witness Hobbs, I must disagree with my brothers concerning both the recitation of the facts which appear in this record and their legal effect. I am of the opinion that the testimony thus adduced, over proper objection, was inadmissible and harmful. Moreover, the law officer’s positive instructions to the court that such could be considered on the issue of credibility were ill-founded and accentuated the evidence’s prejudicial effect. As these occurrences alone call for reversal, I need not express my views concerning the other questions before us. I pause, however, expressly to disassociate myself from any notion that counsel may remain silent at the trial when accused by a witness of the most reprehensible misconduct and later fight the matter out on appeal through a purely ex parte supplementation of the record. Such, I suggest, summarily abolishes the right of confrontation and hearing at the fact-finding level.
Accused was found guilty of arson, in violation of Uniform Code of Military Justice, Article 126, 10 USC § 926; robbery, in violation of Code, supra, Article 122, 10 USC §922; and attempted arson, in violation of Code, supra, Article 80, 10 USC § 880. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for nine years. The convening authority set aside the-findings of guilty with respect to the offenses of arson and attempted arson on the basis of legal insufficiency of the evidence. He approved the findings of guilty of robbery and so much of the sentence as extended to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. The board of review affirmed. We granted accused’s petition for review on a number of assignments of error, but, as noted above, I deem those relating to Hobbs’ cross-examination prejudicial and will, therefore, limit my discussion thereto.
After the prosecution had presented its case, consisting largely of testimony by one Cameron, an alleged accomplice of the accused, and the Korean victim of the robbery, defense called Hobbs, another alleged accomplice in all the crimes charged, to refute the claim that accused had in any way participated in the averred offenses of arson and attempted arson.
Hobbs so limited his testimony, but also, in response to defense questioning, declared that the trial counsel had sought to prevent his appearance as a witness for the defense by informing him that his sentence would not be reduced by the convening authority if he testified on behalf of the accused.
During his cross-examination, trial counsel made no mention of Hobbs’ testimony that suppression of his evidence had been so attempted. Inexplicably ignoring the opportunity to clear his name, he chose instead — and over vehement objection — to embark upon the following course of questions:
“Q Have you made prior statements regarding your relationship with the accused, Grady, in this case?
“A Yes, I have.
“Q I think I started to ask you if, on 15 April 1961, at Camp Kaiser, Korea, you answered the following question: ‘After you were released from the stockade, did you commit *248any • additional homosexual acts?’ Answer: ‘Yes, sir. During the early . part of April 1961, I met Recruit Robert J. Grady, Company C, 1st Battle Group. . . . 17th Infantry, whom I also knew in the stockade, in the C Company mess hall. We mutually agreed to commit a homosexual act and then we took each other’s penises in our mouths until we reached a climax. On two other occasions we again committed similar acts.’ Did you make such a statement?
“A Yes, sir.
“Q On 15 April 1961, at Camp Kaiser, did you answer this question, ‘Have you committed any further acts?’ imthe following manner: ‘Yes, sil*. On Thursday, 13 April 1961, Grady, Cameron and I again went to the EM Club and began drinking. When the club closed, we all decided to go AWOL. We were dressed in fatigues, and took off for Seoul. We arrived the next morning about 1000 hours and went .to the USO, where we got a bed. While we were sleeping, the MP’s came during the afternoon and picked us up. We were taken to the MP station and were all put in the same cell. That night Cameron and I committed an act of mutual oral sodomy, and later Grady gave me a blow job. I didn’t reciprocate with Grady.’ Question: ‘Were you detected by the MP’s while you were engaged in these acts?’ Answer: ‘No, sir.’ Question: “During these acts, did you kiss each other?’ Answer: ‘Yes, Sir.’ Did you make such a statement?
“A Yes, I did.” [Emphasis supplied.]
The accused was not charged with sodomy or any related offense, and the witness Hobbs at no time testified in any way inconsistently with the pretrial statement with which trial counsel sought to impeach his. testimony., Indeed, the question of a homosexual relationship between the witness and the accused formed no part of the direct examination.
From the foregoing, therefore, and contrary to the impression set forth in the majority opinion, it will be seen that Hobbs was not ashed if he and accused had engaged in an illicit relationship prior to the trial. Rather, the trial counsel’s impeachment was carefully limited to whether he had made a statement prior to triad in which he had alleged that sort of a connection. The rule applicable to this method of impeachment is clearly set forth in the Manual for Courts-Martial, United States, 1951, at page 292:
“. . . A witness may be impeached by showing by any competent evidence that he made a statement (or engaged in other conduct) inconsistent with his testimony, but a foundation must first be laid before introducing evidence of an inconsistent statement. . . .
“When a witness refuses to testify as to a certain fact (as when he relies on his right not to incriminate himself), or when a witness who gives no material testimony properly subject to impeachment testifies that he has no recollection as to such fact, it cannot be shown that at some other time he made a statement as to the fact in question. The reason for this rule is that proof of such a statement either would not impeach the testimony of the witness at all or would improperly impeach his testimony.” [Emphasis supplied.]
In United States v Kauth, 11 USCMA 261, 29 CMR 77, we were confronted with the necessity of ruling on the question whether the law officer in that case erred in refusing to accept' certain stipulated testimony of accused’s wife concerning what he had told her prior to the trial. In finding that the law officer acted properly, a unanimous Court, speaking through Judge Latimer, said, at page 267:
“. . . That reason is inapposite here for the original statement is not inconsistent with anything said later by the accused. Both his in-court testimony and that portion of his pretrial statement can be .accepted as true without there being any conflict.” [Emphasis supplied.]
*249And in United States v Freeman, 4 USCMA 76, 15 CMR 76, we said, at page 82:
“It is axiomatic that the issue of the credibility of a witness is a proper subject for cross-examination, and his credibility may be impeached by showing that he has previously made statements which are inconsistent with the testimony given by him at trial.” [Emphasis supplied.]
Reliance need not, however, be placed solely upon our decisions to demonstrate the basic truth that, in order to be permissibly impeaching, prior statements of a witness must contravene his in-court testimony. It is the universal rule, as evidenced by the cases collected in 58 Am Jur, Witnesses, § 767. Indeed, as that authority states, at page 418:
“. . . This rule as to showing the inconsistent statements of a witness rests upon the obvious propriety and necessity of informing the jury of circumstances so directly bearing upon the credibility of the witness and the value of his testimony as do contradictory statements by him of the controverted facts concerning which he testifies, and which the jury must determine. The fact that he has stated the facts differently shows either a failure of memory, that he has forgotten what he once knew, or else it shows a want of integrity, and either way it impairs the value of his testimony.”
To the same effect, see Delaware, L. & W. R. Co. v Converse, 139 US 469, 35 L ed 213, 11 S Ct 569 (1891); Chicago, St. P., M. & O. Ry. Co. v Kulp, 102 F2d 352 (CA 8th Cir) (1939), cert den, 307 US 636, 83 L ed 1518, 59 S Ct 1032 (1939); and State v Sandros, 186 Wash 438, 58 P2d 362 (1936).
Finally, in Grunewald v United States, 353 US 391, 1 L ed 2d 931, 77 5 Ct 963 (1957), the Supreme Court, with rare unanimity, reversed the conviction of one Halperin on the ground that a claim of constitutional privilege before the indicting grand jury was not inconsistent with a claim of innocence before the petit jury. Mr. Justice Harlan, speaking for the Court, noted, at page 418:
“It is, of course, an elementary rule of evidence that prior statements may be used to impeach the credibility of a criminal defendant or an ordinary witness. But this can be done only if the judge is satisfied that the prior statements are in fact inconsistent. 3 Wigmore, Evidence, § 1040.” [Emphasis supplied.]
It is the intentional violation of this “elementary rule” which the record before us clearly demonstrates. Hobbs’ direct examination was carefully limited to the extent of accused’s participation in the alleged arson offenses. His pretrial statements relative to a sodomitical relationship with the accused were in no way contradictory of his in-court declarations, nor did they in any manner show that he previously had “stated the facts differently” and was either suffering from “a failure of memory . . . or . . . want of integrity.” 58 Am Jur, supra.
Moreover, use of the pretrial statements introduced into the balance of justice a factor against which accused could not prevail. The witness admitted making the pretrial statement. Hence, nothing could be gained by calling as a witness the agent to whom it was made, for he could only corroborate Hobbs’ testimony. And to allow accused to adduce proof that he had never engaged in the forbidden sexual connection would result in the trial of a wholly collateral matter which, in the simple interest of judicial expediency, must be forbidden. In short, the entire integrity of the witness — and, more importantly, that of the accused' — was destroyed, not by proof of a relationship between the parties, but by proof that the witness, prior to the trial, had said there was such a relationship.
Turning to the rationale of the principal opinion, I find nothing in the authorities cited therein which in any manner indicates a basis for departing from the necessity that impeaching statements be inconsistent with the direct testimony of the witness. United States v Grunewald, supra. To the contrary, what Mr. Justice Rutledge *250wrote for the Court of Appeals in Ewing United States, 135 F2d 633 (CA DC) (1942), fully supports my view.
In that case, accused was tried for rape. Defense witness Chamberlin testified that she and the victim jointly occupied the apartment alleged to have been the scene of the crime. On the night in question, the accused, known to both, left the apartment before they retired and, without the witness’ knowledge, could not have re-entered, accomplished a criminal assault, and again departed. On cross-examination, the Government was permitted to ask whether Chamberlin had told the victim’s mother prior to the trial that she believed accused was guilty but had to be on his side, as he was facing the electric chair. Upon the witness’ denial of these pretrial statements, the Government was further allowed to demonstrate, by calling the mother, that they had been made. The learned Justice concluded that Chamberlin’s testimony on direct examination, if believed, exonerated accused. Accordingly, her pretrial assertion that he was guilty was completely contradictory of her in-court statements — “a knife thrust at the whole of her testimony, effective to tear it to shreds, if believed. . . . it lost all character as a mere expression of the witness’ opinion, and became an assertion of fact, one effective to contradict almost every crucial specific fact to which she had testified and the ultimate conclusion of fact she intended the jury to draw from them.” Ewing v United States, supra, at page 642.
That such was the holding in Ewing, supra, is made crystal clear by the same court’s most recent decision in the area. In Dixon v United States, 303 F2d 226 (CA DC Cir), decided May 24, 1962, the defendant was on trial for robbery. His wife testified that he remained at home on the date of the robbery until an hour after which he could not have possibly committed it. On cross-examination, she was closely questioned on statements which she allegedly made before the trial, not with respect to her husband’s presence at home, but concerning receiving money from him upon his return, his spending of a large sum the next day in Baltimore, and whether he was accompanied on that trip by one Alice Sims. Upon a denial that she had made these statements, the persons to whom they were allegedly directed were called as witnesses and testfied to the contrary.
In reversing per curiam, the Court of Appeals said:
“The cross examination of the wife outlined above was not within the scope of her direct testimony. She had said nothing about these matters and the statements attributed to her did not directly challenge the truth of anything she had said in her direct testimony. Nor did these statements relate to her bias or prejudice. We find no basis for their use as a foundation for contradicting her, or any other basis for holding the cross examination proper.”
The major portion of my brothers’ opinion, however, rests upon their belief that this record can be read — not as indicating the mere impermissible use of prior statements without any showing of inconsistency — but to demonstrate an admittedly illicit sexual bond between Hobbs and Grady which would tend to bias the former in the latter’s favor. They base their construction of the record on the fact that, during cross-examination, Government counsel asked whether Hobbs was in “love” with accused and whether he had ever kissed him. Both inquiries were met with denials.
While I have gone to some pains to demonstrate that I cannot join my brothers in their attempt so to gloss over the major thrust of the prosecutor’s attack on Hobbs, even were I to assume that the transcript might be so read, I cannot believe that the right to attack the credibility of a witness through a demonstration of an illicit relationship between the parties is sufficiently broad to encompass an accusation against the defendant of participation in disgusting and filthy sexual crimes. So to extend the rules of evidence is completely to distract a court’s attention from the weakness of the prosecution’s case and to invite con*251viction, not because of the offenses charged, but on account of accused’s alleged perversion.
In United States v Long, 2 USCMA 60, 6 CMR 60, we early branded as improper a defense attempt to impeach a prosecution witness in a similar manner. There, we said, at page 70:
. Every departure from the norm of human behavior may not be shown on the pretext that it affects credibility.”
In United States v Gandy, 5 USCMA 761, 19 CMR 57, the trial counsel sought to discredit accused as a witness by use of a prior inconsistent statement to the effect that he had loaned an accomplice money with which to purchase marihuana because he feared exposure as a homosexual. While Judges Bros-man and Latimer upheld accused’s conviction, for a variety of reasons, the Chief Judge, in a well-reasoned dissenting opinion, declared, at page 771:
“. . . The statement he [the prosecutor] sought to attribute to the accused was inadmissible for all purposes, for whatever its capacity to impeach may have been, it was designed to show the commission of an offense not charged in direct violation of paragraph 138(7, Manual for Courts-Martial, United States, 1951; United States v Gibson, 5 USCMA 699, 18 CMR 323. Moreover, the crime suggested by the question was not a run-of-the-mill violation, nor a mere ‘undesirable trait of character’ as denominated by the majority. The prosecutor very clearly implied that the accused customarily indulged in detestable crimes against nature. The mere suggestion of such an offense is calculated to inflame the passions of the court, and is likely to overcome the presumption of innocence.” [Emphasis supplied in part.]
True it is, as my brother Kilday points out, that courts have long permitted a witness’ credibility to be diminished by cross-examination concerning his relationship with one of the parties to the trial in order to demonstrate bias or partiality. But when the relationship is not only illicit but involves conduct reprehensible to every normal person, proof of its existence tends so to influence the mind of the average juror that a purely collateral inquiry becomes the motivation for conviction. Thus, where there is a greater risk that such evidence will be taken by the jury to justify accused’s conviction as a person of bad moral character than that it will be accepted only as relevant to the issue of the witness’ credibility, it should be excluded. And such a distinction has been judicially recognized. Cf. United States v Long, supra; dissenting opinion, Chief Judge Quinn, United States v Gandy, supra; Smith v State, 86 Tex Crim 455, 217 SW 154; Annotation, 27 ALR 278.
That is precisely the situation before us. The Government had a tenuous case against the accused with respect to all the charges. It was dependent almost entirely upon the testimony of an accomplice, for his victim could not even identify accused. Indeed, the staff judge advocate felt compelled to recommend disapproval of the findings of guilty of the arson offenses on the ground of insufficiency of the evidence, and his conclusions were adopted by the convening authority. When the Government, under the guise of impeachment was permitted to paint the accused as an active sodomist,. guilty of the most revolting behavior, a fair risk clearly appears that the court-martial may have chosen to convict him because of this uncharged criminal conduct rather than because of the testimony concerning his actual crimes.
Because the supposed impeaching evidence so involved accused in Hobbs’ misconduct, it should be equally clear that the error which I perceive was not purged by disapproval of the offenses concerning which Hobbs testified. Such a conclusion might be safely reached if Hobbs had been otherwise attacked, but here the damage lies not only in the discredit to him but also in the depiction of the accused as a degenerate. For that reason, I would conclude that the cross-examination, conducted over defense objection, also requires reversal as to the offense of robbery.
In sum, then, I am of the view that, *252properly read, the transcript before us necessitates the conclusion that the trial counsel was erroneously and prej-udically allowed to blacken accused’s character under the guise of using Hobbs’ pretrial statement to impeach his testimony, even though it was in nowise inconsistent therewith. Even were I to assume, however, that he directly sought to show Hobbs was biased on account of a homosexual connection with accused, I would yet hold evidence of that relationship inadmissible as, on the whole, it tended more to influence the court against the defendant than to discredit the witness. I cannot, therefore, join with my brothers in a rationale and affirmance which permits an individual to be convicted of robbery because he is allegedly a sexual deviate. See United States v Provoo, 215 F 2d 531 (CA 2d Cir) (1954).
I would reverse the decision of the board of review and authorize a rehearing.