Opinion of the Court
HomeR FeRGüson, Judge:
Charged with larceny and making a false claim against the United States in violation, respectively, of Uniform Code of Military Justice, Articles 121 and 132, 10 USC §§ 921, 932, the accused was found guilty of wrongful appropriation of the stated sum and of making the false claim in question. Intermediate appellate authorities affirmed, and we granted the accused’s petition for review on the question whether the law officer abused his discretion in overruling a defense motion for a mistrial based upon the court-martial’s receipt of certain testimony from Colonel John K. Flemming, which was later stricken from the record. Proper appreciation of the seriousness of the matter requires that we set forth in some detail the evidence adduced at the trial.
During the early part of 1958, Specialist Seals assisted the accused in the preparation of his income tax return. Seals and the accused were both assigned to the unit personnel office, the former to the section involved in the preparation of Class Q allotment claims. The accused advised Seals that he had a son. Seals told the accused that he was entitled to receive a Class Q allotment if he could substantiate the existence of the child with documentary evidence. On behalf of the accused, he prepared the necessary claim form (DD Form 137) and placed it in his “hold basket,” pending receipt from the accused of the necessary documents. The form recited that the accused had a son, Jack K. Grant, Jr.; that the child’s mother was dead; that accused contributed $115.00 per month to the child’s support; and that he resided with an aunt in Denver, Colorado, whose name was Mrs. Beulah Sells. In fact, Mrs. Sells was not related to the accused, who had once roomed with her, and was not the custodian of any child. The accused had nevertheless once informed her that he had a son. The accused’s enlistment and service records reflected that he had no dependents.
While Seals was absent on leave, accused’s allotment claim form was placed on the desk of Warrant Officer Bishop, the Unit Personnel Officer, whose duties required him to satisfy himself concerning the existence of dependents claimed to be entitled to allotments and to certify on the form that the claim of qualifying relationship had been reviewed and found to be true. Bishop informed the accused he could not process the claim until documentary evidence was presented concerning the child’s existence. The accused stated he would procure the required papers but, in fact, never did so. At no time did the accused indicate to Mr. Bishop that he intended to withdraw the claim or that Bishop had received it erroneously.
[588]*588In May 1958, the accused was designated to collect donations for the Army Emergency Relief Fund in Headquarters Company, U. S. Army Garrison, Fort Carson. He collected the sum of $269.00 from various personnel on May 29, 1958, and placed it in an envelope. The envelope was turned over to the company commander, Captain Carter, who placed it in his safe. On June 4, 1958, the envelope was redelivered to the accused in order that the funds might be turned in to the Army Emergency Relief Office. Captain Carter testified that the accused informed him on the same day that he had turned in the funds and obtained a receipt. On June 18, it was ascertained that the Army Emergency Relief Office had never received the sum collected by the accused and that his receipt was not in the form invariably utilized by that office. Subsequently, in three pretrial statements, the accused sought to account for the loss. Initially, he stated he had visited Post Headquarters and handed the money over to an unidentified woman who had given him the receipt. In the latter two statements, he admitted the falsity of his previous declaration and that his receipt was fraudulent. He then stated he had converted the money to his own use in order to pay certain debts. However, he also evinced an intention to replace the donations.
After the foregoing matters were adduced, the accused elected to testify in his own behalf. With regard to the larceny charge, he averred that all of his pretrial statements were false and that, in reality, he had been unable to turn in the funds on the afternoon he received them from Captain Carter, as the Army Emergency Relief Office was closed. He placed the envelope containing the money in his desk. Press of other duties prevented him from delivering the donations for several days, and when he finally decided to act on the matter, he discovered the envelope and its contents were missing. He informed no one of the true state of affairs, as he did not expect anyone to believe him. He lied in order to gain time to replace the stolen money and because he was under pressure as the result of a pending elimination board proceedings. Captain Carter was mistaken in his impression that accused had spoken of a receipt on June 4, 1958. Actually, he had mentioned a receipt for the first time on the day it was discovered he had not turned in the money.
The accused also stated that he had an illegitimate son, Jack K. Grant, Jr., born in 1941. The son resided in Chat-turn, Louisiana, with two aunts and had never lived with the accused. Mrs. Sells was not related to him and had never had custody of the child.
With the evidence in the foregoing posture, the trial counsel, Lieutenant Isaac, cross-examined the accused as follows:
“Q. Do you recall having a conversation with . . . Colonel Flem-ming a few weeks ago?
“A. Yes, sir, I do.
“Q. What was that conversation about, the nature of it?
“A. It concerned the repayment of the . . . paying back of the misplaced money of the AER Fund, sir.
“Q. Tell the court what you told Colonel Flemming.
“A. I don’t understand what you mean, sir.
“Q. Well, can you understand this, I want you to tell the court what you told Colonel Flemming during that conversation.
“A. I don’t recall what I told him, sir. It was what he told me.
“Q. What did he tell you?
“A. He told me that he wanted me to make some effort towards paying back the misplaced money for the AER Fund, sir.
“Q. You did not make any statement to him then?
“A. Just answered the questions that he asked me, sir.
“Q. You did not make any statements in the nature of an admission or confession to him then?
“A. No, sir; he never asked that question, sir.” [Emphasis supplied.]
In rebuttal, trial counsel called Colonel Flemming as a witness. Following his identification of the accused [589]*589and establishment of his own identity, including his position as Commanding Officer, Headquarters Command, U. S. Army Garrison, Fort Carson, Colonel Flemming testified as follows:
“Q.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
HomeR FeRGüson, Judge:
Charged with larceny and making a false claim against the United States in violation, respectively, of Uniform Code of Military Justice, Articles 121 and 132, 10 USC §§ 921, 932, the accused was found guilty of wrongful appropriation of the stated sum and of making the false claim in question. Intermediate appellate authorities affirmed, and we granted the accused’s petition for review on the question whether the law officer abused his discretion in overruling a defense motion for a mistrial based upon the court-martial’s receipt of certain testimony from Colonel John K. Flemming, which was later stricken from the record. Proper appreciation of the seriousness of the matter requires that we set forth in some detail the evidence adduced at the trial.
During the early part of 1958, Specialist Seals assisted the accused in the preparation of his income tax return. Seals and the accused were both assigned to the unit personnel office, the former to the section involved in the preparation of Class Q allotment claims. The accused advised Seals that he had a son. Seals told the accused that he was entitled to receive a Class Q allotment if he could substantiate the existence of the child with documentary evidence. On behalf of the accused, he prepared the necessary claim form (DD Form 137) and placed it in his “hold basket,” pending receipt from the accused of the necessary documents. The form recited that the accused had a son, Jack K. Grant, Jr.; that the child’s mother was dead; that accused contributed $115.00 per month to the child’s support; and that he resided with an aunt in Denver, Colorado, whose name was Mrs. Beulah Sells. In fact, Mrs. Sells was not related to the accused, who had once roomed with her, and was not the custodian of any child. The accused had nevertheless once informed her that he had a son. The accused’s enlistment and service records reflected that he had no dependents.
While Seals was absent on leave, accused’s allotment claim form was placed on the desk of Warrant Officer Bishop, the Unit Personnel Officer, whose duties required him to satisfy himself concerning the existence of dependents claimed to be entitled to allotments and to certify on the form that the claim of qualifying relationship had been reviewed and found to be true. Bishop informed the accused he could not process the claim until documentary evidence was presented concerning the child’s existence. The accused stated he would procure the required papers but, in fact, never did so. At no time did the accused indicate to Mr. Bishop that he intended to withdraw the claim or that Bishop had received it erroneously.
[588]*588In May 1958, the accused was designated to collect donations for the Army Emergency Relief Fund in Headquarters Company, U. S. Army Garrison, Fort Carson. He collected the sum of $269.00 from various personnel on May 29, 1958, and placed it in an envelope. The envelope was turned over to the company commander, Captain Carter, who placed it in his safe. On June 4, 1958, the envelope was redelivered to the accused in order that the funds might be turned in to the Army Emergency Relief Office. Captain Carter testified that the accused informed him on the same day that he had turned in the funds and obtained a receipt. On June 18, it was ascertained that the Army Emergency Relief Office had never received the sum collected by the accused and that his receipt was not in the form invariably utilized by that office. Subsequently, in three pretrial statements, the accused sought to account for the loss. Initially, he stated he had visited Post Headquarters and handed the money over to an unidentified woman who had given him the receipt. In the latter two statements, he admitted the falsity of his previous declaration and that his receipt was fraudulent. He then stated he had converted the money to his own use in order to pay certain debts. However, he also evinced an intention to replace the donations.
After the foregoing matters were adduced, the accused elected to testify in his own behalf. With regard to the larceny charge, he averred that all of his pretrial statements were false and that, in reality, he had been unable to turn in the funds on the afternoon he received them from Captain Carter, as the Army Emergency Relief Office was closed. He placed the envelope containing the money in his desk. Press of other duties prevented him from delivering the donations for several days, and when he finally decided to act on the matter, he discovered the envelope and its contents were missing. He informed no one of the true state of affairs, as he did not expect anyone to believe him. He lied in order to gain time to replace the stolen money and because he was under pressure as the result of a pending elimination board proceedings. Captain Carter was mistaken in his impression that accused had spoken of a receipt on June 4, 1958. Actually, he had mentioned a receipt for the first time on the day it was discovered he had not turned in the money.
The accused also stated that he had an illegitimate son, Jack K. Grant, Jr., born in 1941. The son resided in Chat-turn, Louisiana, with two aunts and had never lived with the accused. Mrs. Sells was not related to him and had never had custody of the child.
With the evidence in the foregoing posture, the trial counsel, Lieutenant Isaac, cross-examined the accused as follows:
“Q. Do you recall having a conversation with . . . Colonel Flem-ming a few weeks ago?
“A. Yes, sir, I do.
“Q. What was that conversation about, the nature of it?
“A. It concerned the repayment of the . . . paying back of the misplaced money of the AER Fund, sir.
“Q. Tell the court what you told Colonel Flemming.
“A. I don’t understand what you mean, sir.
“Q. Well, can you understand this, I want you to tell the court what you told Colonel Flemming during that conversation.
“A. I don’t recall what I told him, sir. It was what he told me.
“Q. What did he tell you?
“A. He told me that he wanted me to make some effort towards paying back the misplaced money for the AER Fund, sir.
“Q. You did not make any statement to him then?
“A. Just answered the questions that he asked me, sir.
“Q. You did not make any statements in the nature of an admission or confession to him then?
“A. No, sir; he never asked that question, sir.” [Emphasis supplied.]
In rebuttal, trial counsel called Colonel Flemming as a witness. Following his identification of the accused [589]*589and establishment of his own identity, including his position as Commanding Officer, Headquarters Command, U. S. Army Garrison, Fort Carson, Colonel Flemming testified as follows:
“Q. Colonel, do you recall if you had a conversation with the accused sometime subsequent to his confinement at the post stockade in reference to the AER Funds?
“A. Yes.
“Q. Would you relate the substance of that conversation to the court, please?
“A. I have known Sergeant Grant for approximately three years. He worked for me in the personnel section at TPC. When he was in Division, shortly after I assumed command of Army Garrison, he came to me and wanted to be assigned to Garrison. So I had him assigned to our personnel section there. His background on my relationship with Sergeant Grant, he had a habit of writing rubber checks . . .
“IC: Now, if the court please, I am going to object to this as not responsive to the question and it is not material.
“LO: I will sustain the objection. I don’t believe that is proper.
“WITNESS: I can only testify as to background of Sergeant Grant as to why I called him before me and what we had to say at the time.
“LO: Very well.
“WITNESS: I think it is germane to the subject, the various transactions between myself . . .
“TC: Colonel, the point we would not want to prejudice the rights of the accused and bring in any possible evidence . . .
“A. Well, needless to say, Sergeant Grant had been before me on several occasions. I had him confined when this AER, to put it kindly, misappropriation, came up. After he had been in confinement, oh, some several weeks, I heard that he was attempting to reverse his story and to deny his previous confession and to deny the statements he had made under oath to investigators. So I had him brought over to my office; and we discussed the transaction and during this course of this conversation Sergeant Grant admitted to me that he had taken this money. Further, he offered to make restitution insofar as he was possible. I immediately called his company commander, Captain Carter, and in Captain Carter’s presence Sergeant Grant reiterated the statement to me and voluntarily . . . volunteered to make restitution insofar as possible to the money which had been missing. I took him up on this deal and made arrangements with the finance office to give him advance pay of two weeks of all that was coming to him in two weeks in advance. I forgot the exact amount, I believe something like $153 he had coming to him. Of this $153 he made restitution of $140. I understand from Captain Carter that the AER officer and Sergeant Grant went to the finance office, collected this money and the AER officer gave him a receipt for $140. If it is necessary to fix the exact date, that receipt will show it.
“Q. You say you know Sergeant Grant here for approximately three years, is that right?
“A. Right.
“Q. Do you know what is [sic] reputation would be for truth and veracity ?
“A. Well, there is only a four-letter word that would describe it, he is a liar, a psychopathic liar. I have had him before me and he would tell me one story and two days later he would completely forget what he told me and reverse himself. This is what I was about to say in this rubber check business. I had him before me on this business and he would tell me I have done this, and then it had not been done.” [Emphasis supplied.]
Upon motion of the defense counsel, the law officer struck that portion of Colonel Flemming’s answers relating to “other offenses” and instructed the court members to disregard it. Following cross-examination of the witness, the defense moved for a mistrial. The law officer denied the motion but struck all of the witness’ testimony from the record and admonished the court to dis[590]*590regard it. He repeated his admonition in his final instructions.
There can be no doubt that it was error to receive Colonel Flemming’s testimony concerning Ser-geant Grant’s purported confession of guilt to him. As our quotation of the record indicates, no effort was made to show compliance with Code, supra, Article 31, 10 USC § 831, prior to offering it in evidence. This is an indispensable predicate for the introduction of such incriminatory statements. United States v Grisham, 4 USCMA 694, 16 CMR 268; Manual for Courts-Martial, United States, 1961, paragraph 1536. Similarly, the witness’ unbridled references to accused’s alleged proclivity for writing “rubber checks” was completely irrelevant and inadmissible. United States v Shipman, 9 USCMA 665, 26 CMR 445; United States v Shepherd, 9 USCMA 90, 25 CMR 352. Reception of the other parts of his testimony indicating an abiding opinion of the accused’s guilt was equally improper. Without dissecting his statement sentence by sentence, suffice it to say we are convinced that Colonel Flem-ming’s testimony, considered as a whole, should have been excluded. Thus, we are squarely faced with the question whether it was sufficient for the law officer to strike the offensive declarations from the record and admonish the members to disregard the matter.
A motion for mistrial is addressed to the law officer’s sound discretion, and we have repeatedly indi-cated that we will reverse only where his ruling constitutes an abuse of that discretion. United States v Patrick, 8 USCMA 212, 24 CMR 22; United States v Shamlian, 9 USCMA 28, 25 CMR 290. Thus, in United States v Patrick, supra, we found that the law officer’s granting of a motion to strike inadmissible testimony and instruction to the court to disregard it in their deliberations was sufficient to overcome any prejudice inherent in a witness’ testimony that the accused was engaged in the sale of leave papers. And in the Shamlian case, supra, we reached a similar conclusion concerning the effect of the trial counsel’s remarks about the accused’s previous convictions and attitude toward the service. On the other hand, in United States v Richard, 7 USCMA 46, 21 CMR 172, we found that declarations by a court member during the challenge procedure concerning the accused’s prior history of misconduct and the results of certain polygraph tests required the law officer to declare a mistrial. The instant case is more closely related to the last mentioned situation.
The court members were confronted with the testimony of a witness who was not only a senior Army officer but also the Commanding Officer of the garrison forces at the post at which the court met and to which its members were assigned as personnel of lodger units. Not only was he permitted to testify concerning accused’s confession of guilt to him without the necessary predicate of a warning being shown, but he also “improperly depicted the accused as ‘a despicable character’ unworthy of belief by the court-martial.” United States v Shepherd, supra. It is difficult to see how the members could erase from their minds the damning effect of Colonel Flemming’s vituperative declarations and accord to the accused the fair trial to which he is entitled. As was succinctly stated in People v Deal, 357 Ill 634, 192 NE 649 (1934), at page 652:
“. . . Human nature does not change merely because it is found in the jury box. The human mind is not a slate, from which can be wiped out, at the will and instruction of another, ideas and thoughts written thereon.”
Accordingly, we conclude that the law officer abused his discretion in denying the defense motion for a mistrial.
The Government argues, however, that any prejudice inherent in the denial of the motion was over-come by the compelling nature of the evidence of accused’s guilt. Assuming arguendo that the proof of guilt is compelling, the short answer to the Government’s contention is that the accused is entitled to a fair hearing. United States v Shepherd, supra. And we have unhesitat[591]*591ingly rejected the idea that compelling evidence has any curative effect when a confession has been introduced without showing compliance with Code, supra, Article 31. Cf. United States v Minnifield, 9 USCMA 373, 26 CMR 153; United States v Yearty, 8 USCMA 191, 23 CMR 415; United States v Williams, 8 USCMA 443, 24 CMR 253. Colonel Flemming’s testimony undoubtedly introduced these infirmities into the record, and we reject any notion that their prejudicial effect can be overcome by reference to the strength of the prosecution’s case.
The decision of the board of review is reversed and a rehearing is authorized.
Chief Judge Quinn concurs.