(dissenting):
I dissent.
With facile pen, my brothers have— despite their disclaimer — elected to overrule our decision in United States v Marymont, 11 USCMA 745, 29 CMR 561, and eliminate the extraordinary privilege conferred upon an accused to testify concerning less than all the offenses charged against him, if the counts are connected with each other. I believe this to be in derogation of the rule of evidence properly laid down in the Manual for Courts-Martial, United States, 1951, and, in light of the wide-ranging military rule of joinder, an unreasonable limitation on the protections afforded an accused. For these reasons, I note my disagreement with the principal opinion.
The facts are as stated by Judge Kilday. Briefy, the record indicates accused, charged with burglary, in violation of Uniform Code of Military Justice, Article 129, 10 USC § 929, and larceny, in violation of Code, supra, Article 121, 10 USC § 921, entered a motel in the nighttime and removed the property of the occupants. After the conclusion of the Government’s case, Lovig elected to testify in his own behalf, but it was expressly declared that he would limit his testimony to the charge of burglary. Stating that he had been drinking, accused conceded he had entered the premises in question, but “didn’t really have no intentions” when he “walked into this motel.” The following exchange on direct examination then occurred:
“Q: When you entered this motel, did you have any intent to steal anything?
“A: No, sir; I didn’t have any intent to steal anything. Like I said I dont [sic] know why.” [Emphasis supplied.]
From the commencement of his cross-examination, trial counsel was, over proper objection, permitted to question the accused concerning what he did after entering the motel. He was allowed to elicit the fact that Lovig examined the premises, proceeded into the bedrooms, and took handbags belonging to the occupants. Further questions resulted in a judicial confession to each and every element of the offense of larceny, concerning which the accused had elected to remain silent, and all because of the law officer’s ruling permitting the trial counsel to enlarge the scope of his cross-examination.
The Manual for Courts-Martial, supra, provides military accused with an unusual privilege. It declares, at page 280:
“ . . . When an accused is on *74trial for a number of offenses and on direct examination has testified about only one or some of them, he may not he cross-examined with respect to the offense or offenses about which he has not testified. If the accused testifies on direct examination only as to matters not bearing upon the issue of his guilt or innocence of any offense for which he is being tried, he may not be cross-examined on the issue of his guilt or innocence.” [Emphasis supplied.]
This privilege of the accused so to limit his testimony is within the competence of the President to prescribe for use in courts-martial. Code, supra, Article 36, 10 USC § 836; United States v Moore, 14 USCMA 635, 34 CMR 415; United States v Smith, 13 USCMA 105, 32 CMR 105. This Court has repeatedly approved the concept. United States v Marymont, supra; United States v Johnson, 11 USCMA 113, 28 CMR 337; United States v Kelly, 7 USCMA 218, 22 CMR 8; United States v Hatchett, 2 USCMA 482, 9 CMR 112.
The principle enabling the accused so to limit his testimony to less than all the charges against him is undoubtedly grounded in the broad rule of joinder which the Government enjoys in military trials. Manual, supra, paragraphs 33h, 30f, 26c; Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 40, et seq; United States v Marymont, supra; United States v Davis, 11 USCMA 407, 29 CMR 223. Its purpose is to protect the accused against embarrassment in defending against one charge because of its joinder at trial with others. Cf. Finnegan v United States, 204 F2d 105 (CA 8th Cir) (1953); United States v Lotsch, 102 F2d 35 (CA 2d Cir) (1939).
Thus, in United States v Marymont, supra, when faced with the argument that an accused could be cross-examined concerning a charge of adultery, when he elected to testify only concerning a charge of murder, on the basis that the illicit relationship constituted the motive for the homicide, we declared, at page 751:
“The Government argues, however, that the accused’s relations with Mrs. Taylor tended to establish a motive for the murder of his wife. From this premise, it is reasoned that it was permissible for the trial counsel to establish acts of intercourse between Marymont and his paramour. Absent the charge of adultery, this contention is undoubtedly correct. Nevertheless, the relationship which the Government claims to have constituted accused’s motive was in fact made the basis of a separate count. While joinder of criminal charges is permissible in trials by court-martial, the process may also have the effect of limiting the rights which the Government might otherwise possess. Separate and distinct offenses may never be combined in such a manner that the accused, merely because of the charges against him, is hampered or embarrassed in the presentation of his defense. Finnegan v United States, 204 F2d 105 (CA 8th Cir) (1953) ; United States v Lotsch, 102 F2d 35 (CA 2d Cir) (1939). If the Government’s position here is correct, this basic principle has little validity, as its contention means that accused’s right to remain silent with respect to one or more of the offenses charged vanishes upon the showing of an incidental connection between it and the crime concerning which he desires to speak. Cf. United States v Johnson, supra. In short, if, as here, an accused is charged with both murder and adultery, the fact that the latter offense bears in any way upon the former means that the defendant must be willing judicially to confess the lesser crime in order to defend against the greater. We do not believe the Government’s privilege extends so far. Where it has chosen to make the motive for a murder the subject of a separate count, it must be held to have foregone its right to cross-examination with respect to that count unless, of course, the accused voluntarily extends his testimony to its allegations.” [Emphasis supplied.]
Except for the different nature of the offenses charged, precisely the same situation is presented here. Accused elected expressly to limit his testimony *75to the offense of burglary and defended against it on the basis that he did not enter the premises with the requisite criminal intent. At no time did he touch upon the elements of the offense of larceny, nor extend his testimony to that charge. To the contrary, in response to the carefully framed questions of his defense counsel, he did no more than to disclaim an intent to steal at the time of his criminal entry into the motel. Such a statement in no way bears upon the separately punishable charge of larceny committed after his entry. Indeed, we have held an almost identical denial of the requisite intent to raise an issue of the lesser crime of unlawful entry quite without regard to the fact that the accused, after his entry, formed the intent to steal and, in fact, stole various items, for which he was duly convicted of larceny. See United States v Kuefler, 14 USCMA 136, 33 CMR 348. Thus, it is crystal clear that, here, regardless of the connection between the charges of burglary and larceny, and as in the Mary-mont case, supra, the accused was privileged to limit his testimony to the former charge and could not be deprived of that right by the Government’s choosing also to allege the separately punishable theft count.
Turning to the rationale of the principal opinion, it is at once evident that it goes astray in concluding the accused denied the intent to steal, as an element of larceny. Quite the contrary is apparent, for, as noted above and, indeed, in its own quotation of the record, that testimony was given only in response to the prefatory inquiry “When you entered this motel” (emphasis supplied) and is to be considered in no other light. Compare United States v Kuefler, supra. Thus, I am constrained to disagree with Judge Kilday’s conclusion that United States v Marymont, supra, may be distinguished — as opposed to being overruled — on the ground that the accused here voluntarily extended his testimony to the charge of larceny. That circumstance was present in United States v Kauffman, 14 USCMA 283, 34 CMR 63; United States v Miller, 14 USCMA 412, 34 CMR 192; and United States v Kelly, supra, but it is not borne out by the record in this case. The truth of the matter seems to be that my brothers regard the Manual rule as an aberration in the law and, despite our contrary holding in Marymont, supra, are determined to allow the Government to demand a judicial confession to one crime as the price for defending against the other, if the two charges are in any way intertwined. I believe, however, that the privilege to limit one’s testimony to less than all the charges against them is, in light of the broad joinder permitted in court-martial trials, soundly conceived. It was so considered when we decided United States v Marymont, supra, and I have not been convinced that we then erred. I, therefore, record my disagreement with the disposition which the majority make of this appeal.
I would reverse the decision of the board of review and return the record of trial with directions to reassess the sentence on the burglary charge or direct a rehearing on the larceny count and the penalty.