(dissenting):
I seriously question the conclusion that this accused’s testimony does not constitute a confession of guilt. The accused admitted he penetrated the child’s vaginal area up to “the second knuckle” of his index finger. He said he did so because the child was bleeding as a result of a fall against the arm of a couch and he wanted to find out where “the blood had come from.” He testified he didn’t say anything to the child’s parents about the matter because he didn’t think they “would understand . . . [his] reason for putting . . . [his] finger into . . . [the child’s] privates.” In my opinion, no one would accept this explanation. It is utterly incredible! Be that as it may, I specifically disagree with my brothers for two reasons not mentioned by them.
First, the board of review erred as a matter of law in holding the child’s testimony inadmissible. The child promised to tell the truth and not to lie; and said she would be punished if she lied. I don’t know what else can be required of a seven-year-old witness. But, assuming a ritualistic formula of oath or affirmation is required, there was a manifest waiver of the formula by defense. Defense counsel made no objection to allowing the child to testify without the formula; he cross-examined the child at length; he called the child’s school teacher to testify to difficulties she had at school; he introduced evidence to bolster his “defense” that the child’s account was a fabrication concocted by her mother who wanted to injure the accused because she had a “few arguments and stuff like that” with *151him. And, in his final argument, he contended the child could not be believed because of purported discrepancies between her statement to the doctor, who examined her after the incident, and her trial testimony. Speaking of an identical situation, the Court of Appeals for the District of Columbia Circuit said:
“Appellants objection to the action of the court in permitting the witness to testify without being sworn is raised for the first time on this appeal. Moreover, it is neither contended on this appeal, nor does the record suggest, that the fact was not known to appellant early enough so that he could have made timely objection. Under the circumstances, it comes too late. As was said by the Supreme Court of Nebraska: * * we are of the opinion that the irregular administration of the oath to a witness, or the taking of testimony without an oath at all, must, if known to the adverse party, be objected to at the time. He may not, with knowledge of the irregularity, permit the trial to proceed, and raise the question after verdict.’ This is the uniform rule.” [Beausoliel v United States, 107 F2d 292, 294 (CA DC Cir) (1939).]
The competency of a witness and the administration of an oath or affirmation are two different things. The board of review held that the preliminary examination of the child established she was competent to testify as a witness. It concluded that defense counsel’s objection to competency included an objection to the failure to observe the formula of the oath.1 The record does not support the conclusion. After the child completed her testimony and withdrew from the courtroom, the following colloquy between defense counsel and the law officer was held:
“DC: Mr. Law Officer, did the record properly show I was making an objection to her?
“LO: To her competency ?
“DC: Yes, and you made a determination.
“LO: Right.”
Secondly, as much as I abhor and condemn the acts of the accused, I believe we should merely affirm the decision of the board of review. The board of review approved lesser findings of guilty on erroneous principles of law. Had The Judge Advocate General certified the correctness of the board’s action to this Court, we would be justified in returning the record of trial to the board of review for reinstatement of the court-martial’s findings. But the case comes to us on petition of the accused. In a petition case, we have not favored a disposition which would leave the accused in a worse position than when he appealed. United States v Dean, 7 USCMA 721, 23 CMR 185. Consequently, although the decision of the board of review represents a windfall to the accused, I would affirm it.
As far as the record shows and the appellate briefs indicate, defense counsel may have been fully aware of the fact the child was not formally asked to swear or affirm to the truth of the testimony she would give. If defense counsel had such awareness, his tactic in remaining silent would preclude raising the issue on appeal. As we pointed out in United States v Wolfe, 8 USCMA 247, 250, 24 CMR 57, “A criminal trial is not a guessing game. An accused, alike with the Government, must deal fairly with the court. He cannot withhold information of matters affecting the trial on the chance that they may have a favorable effect, and then, when disappointed, complain.” Even lacking such specific awareness, the nature of the error is such that the point is not preserved for appeal in the absence of a failure to object at trial. Wilcoxon v United States, 231 F2d 384 (CA 10th Cir) (1956), cert den, 351 US 943, 100 L ed 1469, 76 S Ct 834 (1956).