(dissenting):
Rules of evidence promulgated by the Manual for Courts-Martial, United States, 1951, have the “force of law.” Unfortunately, it is not always clear whether the Manual intended to promulgate a particular rule of evidence or merely explicated the rule as it then prevailed in civilian jurisdictions. See United States v Smith, 13 USCMA 105, 32 CMR 105. So far as the privilege of one spouse to testify against another is concerned, this Court unanimously treated the Manual provision as promulgating a “rule” for courts-martial, rather than merely commenting on the rule obtaining in American criminal courts. United States v Leach, 7 USCMA 388, 22 CMR 178. I am still of that opinion; and nothing in any case before this one has directly rejected this interpretation of the Manual provision.
The Manual provides that the accused’s privilege to object to testimony by his spouse “does not exist” if the spouse is “injured by the offense with which . . . [he] is charged.” It enumerates specific offenses as to which the privilege does not exist. One of these is unlawful cohabitation. Manual for Courts-Martial, supra, paragraph 148e, page 277. Whether other offenses are also included need not detain me. See my dissent in United States v Massey, 15 USCMA 274, 35 CMR 246; United States v Leach, supra, concurring opinion, Judge Ferguson. Since the accused was charged with unlawful cohabitation, he could not properly object to testimony by Mrs. Rener as to that offense.
In my opinion, the material parts of Mrs. Rener’s testimony were all relevant to the unlawful cohabitation offense. The specification alleged that the woman with whom the accused co-habitated was not his wife. Mrs. Rener testified she was the accused’s wife and that she lived together with him as husband and wife until a date previous to that alleged in the specification. I conclude, therefore, that the law officer properly admitted her testimony, and properly instructed the court-martial not to consider the testimony in connection with the false claim offense. At least as to the unlawful cohabitation offense, the findings of guilty are, therefore, unimpeachable.
The majority contend that, regardless of the law officer’s specific instructions forbidding consideration of Mrs. Rener’s testimony in connection with the false claim offense, the conviction therefor must be reversed because they “cannot say that the court was uninfluenced” by her testimony in its deliberations on the findings. I disagree with their conclusions, as to the futility of the law officer’s instruction and the pernicious effect of Mrs. Rener’s testimony, for the following reasons:
(1) If there was any error in Mrs. Rener’s testimony as to the fact of her marriage to the accused, there was no resulting prejudice because the accused judicially admitted she was his wife.
(2) The evidence overwhelmingly indicates that Mrs. Rener and the children did not accompany the accused, as he represented in the travel claim, because they were at their home in Hampton, Virginia, while the accused was continuously in the company of his alleged paramour at Laur inburg, North Carolina, and Myrtle Beach, South Carolina. Hence, Mrs. Rener’s testimony that she “last live[d] together ... as husband and wife” with the accused *72in Hampton in September 1965, is unimportant.
(3) Assuming Mrs. Rener’s testimony had some significance, the law officer twice directed the court members they could not consider it in connection with the false claim offense. The story told by the accused about transporting his wife and children from Hampton to Myrtle Beach and his unsuccessful effort to “patch . . . up” his relationship with his wife does not even hint at a “living together” as husband and wife during the brief period of the alleged trip. Consequently, Mrs. Rener’s testimony is not so inconsistent with the accused’s as to justify the conclusion it was a vital factor in the case and probably induced the court members to disregard the law officer’s instructions. Much more important in that connection, is the fact Mrs. Rener was the one person who could verify or disprove the accused’s story. She was there in the courtroom area; she could not be called by the Government to testify against the accused, but she could be called by him to testify in his favor. Mrs. Rener, therefore, was “peculiarly available” as a witness for the accused, but he did not call her. His failure to do so alone discredits his testimony to the point of unbelievability. Bisno v United States, 299 F2d 711 (CA 9th Cir) (1961), certiorari denied, 370 US 952, 8 L ed 2d 818, 82 S Ct 1602 (1962); McClanahan v United States, 230 F2d 919 (CA 5th Cir) (1956).
I would affirm the decision of the board of review.