United States v. Barben

14 C.M.A. 198, 14 USCMA 198, 33 C.M.R. 410, 1963 CMA LEXIS 204, 1963 WL 4877

Opinion

Opinion of the Court

Per Curiam:

The accused originally pleaded guilty to a charge of wrongful appropriation, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. While testifying in mitigation and extenuation, he made statements inconsistent with that plea, and the law officer set it aside, declaring a mistrial to which the defense agreed.

Thereafter, accused was arraigned upon the same charge and specification before another court-martial and pleaded not guilty. After the prosecution had offered its evidence and rested, accused elected to testify in his own defense. On cross-examination, trial counsel questioned accused as to the admissions of guilt which he made to the law officer at the earlier trial during a preliminary inquiry into the providence of his plea. Such cross-examination was prejudicially erroneous. United States v Daniels, 11 USCMA 52, 28 CMR 276; United States v Stivers, 12 USCMA 315, 30 CMR 315; Kercheval v United States, 274 US 220, 71 L ed 1009, 47 S Ct 582 (1927).

The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army. A rehearing may be ordered.