(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree that the first two certified questions need not be answered, for the question whether assault with intent to commit sodomy is lesser included in a consummated violation of Uniform Code of Military Justice, Article 125, 10 USC § 925, was not before the board of review. As the principal opinion notes, the convening authority saw fit to approve only so much of the findings of guilty as established the commission of a lewd and lascivious act by Airman Kindler. Whether the convening authority acted rightly or wrongly, that was the only offense presented to the board for its consideration, and its comments regarding assault with intent to commit sodomy are simply academic observations. Cf. United States v Morgan, 8 USCMA 341, 24 CMR 151; United States v Maginley, 13 USCMA 445, 32 CMR 445. Thus, the inquiry presented is moot and need not receive our attention.
As hereinafter will be noted, I also agree that the trial counsel’s examination of the accused concerning his recent, unusual act of self-abuse was proper cross-examination in light of the latter’s assertions on direct examination. However, I respectfully note my dissent from the proposition that accused’s testimony also permitted the prosecution’s unparalleled excursion into the juvenile acts of sodomy which the law officer here allowed. I believe, as did the staff judge advocate and the board of review, that such constituted error. In view of their nature and the state of the proof, I also join with the board in its conclusion that such was prejudicial and requires a rehearing to be ordered.
The principal opinion correctly sets forth the accused’s testimony as it bears upon the issue before us. In it, he first asserts that he is “normal,” not a homosexual, and considers acts such as that charged against him to be sinful. In each instance, he spoke of the present and, indeed, emphasized that he was informing the court “the way . . . [he was] right now” or, as his counsel declared, “right now today.” He went on to say that he was “not different” on January 1, the date of the alleged incident; was innocent; and had not engaged in any homosexual activities “or anything like this” since he had been in the Air Force. At no time did Kindler testify or attempt to state to the court members that he had not engaged in such acts or abnormal behavior prior to entry into the service or that he was not guilty of such conduct during his formative years. Rather, he carefully limited his testimony to his conduct after entering the service and, contrary to the implication of the principal opinion, sought not at all to create the impression that, not only was he now normal and incapable of the repulsive behavior depicted by the Government’s case, but had always been so. His testimony, in short, was limited to his military career and, with some reasonable extensions, the scope *403of the trial counsel’s cross-examination should also have been so curtailed.
The cases cited by the majority simply do not support the result which it reaches. Thus, Simon v United States, 123 F2d 80 (CA 4th Cir) (1941), expressly notes that the alleged acts of misconduct brought forth on cross-examination of the defendant were only developed incidentally to the establishment of a fact material to the merits of the indictment and, further, that they bore directly on the accused’s credibility, the court following the broad rule — which this Court has rejected —that acts of misconduct may be made the subject of inquisition in order to discredit a witness-accused. In brief, this case is simply contrary to our decision in United States v Robertson, 14 USCMA 328, 34 CMR 108, decided December 27, 1963, and it bears not at all upon the proposition whether the accused sought on direct examination to portray a false character to the fact finders and thereby authorized the trial counsel’s inquiry.
Similarly, in United States v Rossi, 219 F2d 612 (CA2d Cir) (1955), the defendant on direct examination volunteered that he had been convicted of conspiracy against the Fascist regime in Italy and, in the words of Judge Medina, “vigorously asserted without qualification” that “he had never been convicted of any other crime.” United States v Rossi, supra, at page 615. Thus, the circuit court’s ruling upholding cross-examination concerning numerous other convictions was clearly proper. And it is also to be noted that the matter in question dealt with convictions as opposed to acts of misconduct. Again, however, the decision simply offers no authority for the proposition that a claim of normal behavior while in the military service allows cross-examination concerning acts of misconduct occurring six or seven years before.
The reference to Weiss v United States, 122 F2d 675 (CA 5th Cir) (1941), in which the defendant threw open the door to a wide ranging cross-examination concerning his adherence as an architect to ethical principles by his testimony on direct examination directed toward convincing “the jury that Weiss was strictly and ethically an architect of unusual ability,” also fails to support the conclusion that this accused similarly invited inquiry concerning his juvenile acts. And, in the same manner, United States v Lowe, 234 F2d 919 (CA3d Cir) (1956); United States v Coduto, 284 F2d 464 (CA7th Cir) (1960); and Lindsey v United States, 133 F2d 368 (CA DC Cir) (1942), stand for no more than the general rule that a party is entitled to cross-examination fully consonant with the extent of the direct examination.
What then are the principles to be applied here? If, as I believe, the accused did not testify to lifelong normality but only to his behavior within the service and his present condition, then the real issues presented are whether the acts of misconduct involved were relevant to rebut his contentions, or to attack his credibility, or are barred from consideration by his youth at the time of their commission. In my opinion, evidence relating to them should have been excluded on all three bases.
First, in United States v Warren, 6 USCMA 419, 20 CMR 135, this Court, speaking through Judge Latimer, held inadmissible on the ground of remoteness acts of sexual misconduct which were some three and one-half years old. In so doing, it was pointed out that the staleness of the transaction simply obliterated any reason for drawing an inference of guilt and magnified the possibility of unfairness to the accused. Warren, supra, at page 428. Cited in support of this proposition were Simpkins v United States, 78 F2d 594 (CA 4th Cir) (1935) (acts of misconduct more than one year old irrelevant), and Hall v United States, 235 F 869 (CA 9th Cir) (1916). And how pertinent to the question here is the following quotation from Hall, supra, at pages 870-871:
“. . . It is, however, never to be lost sight of that the defendant is entitled to be tried upon competent evidence and only for the offense charged, and where there is matter *404collateral to the issue to be tried, it is the duty of the court to see that proof of collateral matter which can really only tend to prejudice the defendant with the jurors and to produce the impression that he is of low and depraved disposition is not admitted. . . .
“. . . [I] t is not a logical inference to say that testimony of an assault upon a child nearly 3 years previously shows that defendant had a design or intent to make an assault nearly 3 years later upon another child. It is too plain, however, that proof of such collateral matter tends to produce the belief that defendant is a person of depraved moral character, and is highly prejudicial to the defendant on trial before a jury.”
So also is it illogical to infer from acts of sodomy committed between accused and his twin brother at the ages of twelve, thirteen, and fourteen, that he was not normal after the beginning of his military service in November 1961, at which time he was seventeen and on the date of the alleged offense, when he was nineteen. The simple result is to paint the accused to the court-martial as a pervert of the type likely to commit the crime charged and thus improperly to impugn his denial of guilt. Hall v United States, supra; Bird v United States, 180 US 356, 45 L ed 570, 21 S Ct 403 (1901). Hence, upon this ground alone, I would hold the evidence of accused’s acts should not have been received.
Secondly, it is now clear beyond cavil that an accused may not be cross-examined as to his credibility on the subject of prior acts — as opposed to convictions — of misconduct. United States v Robertson, supra; United States v Miller, 14 USCMA 412, 34 CMR 192. As we noted in those cases, the danger that the fact finders will convict the accused on the basis that his prior behavior justifies such action far outweighs the considerations in favor of receiving such evidence on behalf of the Government. These decisions also call for reversal here.
Thirdly and finally, even though it be concluded that these acts of misconduct are relevant and admissible despite the lapse of time since their occurrence and the fact that no convictions were involved, I yet believe they should have been excluded as having occurred while the accused was admittedly a juvenile.
In United States v Roark, 8 USCMA 279, 24 CMR 89, this Court expressly considered the reception of “accused’s previous acts of misconduct during his infancy.” Roark, supra, at page 281. In concluding that juvenile acts of misconduct — as well as juvenile adjudications of delinquency — were not admissible for impeachment purposes, we said, at page 284:
“We recognize the contention that . . . military law accepts . . . [acts of misconduct] as affecting credibility. We do not believe it necessary to carry that concept as far as juvenile delinquency is concerned. . . .”
And we went on to say, at page 285:
“In the case at bar, the accused was fourteen and a half years old at the time of his juvenile delinquency, and he was over the age of eighteen when he committed these offenses. It may well be that there was no significant change in his habits, attitudes, or character during the three and a half years intervening between the misdeeds, but the immaturity of a fourteen and one-half-year-old boy argues against using his early predilections in a criminal proceeding after he reaches an age when society must charge him with the judgment, sense, and discretion of one who has reached his majority. If minors who have offended against the laws of society afterward outgrow their divergency, it may in some small measure be chargeable to the chance of starting anew which the juvenile delinquency laws espouse. Some of these boys will one day enter the military service, and a sound social policy recognized in many States should not be completely discarded when and if the boy, now a man in the eyes of the *405military, becomes an accused in a trial by court-martial. Remoteness and policy can both be touchstones of inadmissibility without serious injury to the system. The handicap to the Government in prosecutions in military courts is no greater than that placed upon district attorneys in many of our States, in the District of Columbia, and seemingly in Federal district courts. Once it is concluded the rule of inadmissibility is sound, we would not abide in the spirit which prompted such legislation if we permitted the same information to be brought out by cross-examination.”
See, to the same effect, United States v Cary, 9 USCMA 348, 26 CMR 128, and United States v Butler, 13 USCMA 260, 32 CMR 260.
We have, therefore, steadily adhered to the principle that juvenile misbehavior is not usable for impeachment purposes on cross-examination of the accused. The sins of the child are not to be visited upon the adult unless, of course, he seeks to mislead the fact finders into believing that he, as a juvenile, was pure as the driven snow. Cf. Walder v United States, 347 US 62, 98 L ed 503, 74 S Ct 354 (1954). But, as noted above, that was not the case here, for the accused sought only to characterize his military service as normal and his present state as not being that of a homosexual. Under such circumstances, I would apply the general principle which we have heretofore laid down and hold the law officer’s ruling permitting the cross-examination here involved was prejudicially erroneous because it required disclosure of juvenile misconduct.
For all of these reasons, therefore, I would answer the third certified question in the affirmative.
As to the fourth question, as noted above, I am convinced that the accused, by his claim of sexual normality during his service, opened himself to the cross-examination by which the cartridge incident was divulged. Indeed, this episode points up the basic distinction which I — unlike my brothers — find present in this case, i.e., the extent to which accused’s direct testimony, unfortunately for him, embraced the acts of self-abuse concerning which he was questioned by the prosecution. As to this question, therefore, I agree that there was no error on the part of the Government or the law officer.
In sum, then, I am of the view that Kindler’s limited testimony of normality during his military career did not serve to authorize the trial counsel to cross-examine him about acts of sodomy which occurred while he was a juvenile and approximately five years prior to his enlistment in the Air Force. The door being ajar, rather than open, it was prejudicially improper to parade such acts of misconduct before the court-martial. United States v Roark; United States v Warren; United States v Robertson, all supra. I would, therefore, answer the certified questions as indicated and order a rehearing.