[40]*40Opinion of the Court
Robert E. Quinn, Chief Judge:
The accused was tried and convicted of larceny. The question before us is whether he was prejudiced by improper conduct of trial counsel.
Appellant was charged with acting in conjunction with Private Ronald E. Goodwin. At trial, the prosecution called two witnesses who were implicated with the accused in the transaction. One was Goodwin. He testified that he helped the accused collect clothing of recruits belonging to the accused’s company, and that together with the accused he extracted money from the clothing and shared in the proceeds. The other witness was, ironically, Private Law. Law’s room was used as a collection point for the clothes and the division of the money. He also shared in the proceeds of the alleged larceny.
The second question put to Law by trial counsel inquired where he was “presently located.” He replied that he was in the “Post Stockade.” After he gave an account of the incident and the extent of his participation in it, he was asked by trial counsel whether he had been “tried for . . . [his] part in this offense.”1 He responded in the affirmative and indicated he was tried for “willfully receiving stolen money.” Similarly, Goodwin was asked, immediately after he testified regarding the division of the money, whether he had been tried and convicted for his part in the affair. He, too, replied in the affirmative.
Defense counsel did not object to the questions asked Law, but he did object to those put to Goodwin. His objection was overruled.
In its brief, the Government assumes “arguendo” that trial counsel acted improperly, but it excuses the error on the ground that the misconduct did not prejudice the accused. That there is error is manifest.
Evidence that one of several accused entered a plea of guilty or was convicted on a separate trial is not admissible on the issue of guilt of another accused. Payton v United States, 222 F 2d 794 (CA DC Cir) (1955); United States v Babb, 218 F 2d 538 (CA 5th Cir) (1955); State v Kerley, 246 NC 157, 97 SE 2d 876. The rule applies not only when the accused are charged with the same offense, but extends to a situation in which the offenses charged arose out of the same circumstances. Thus, in Kirby v United States, 174 US 47, 19 S Ct 574, 43 L ed 890, the Supreme Court held it was error in a prosecution for receiving stolen property to admit evidence that the person who gave the property to the accused had been convicted of stealing the property. See also State v Justesen, 35 Utah 105, 99 Pac 456. The Manual for Courts-Martial refers to the rule in its general discussion on the admissibility of statements of conspirators and accomplices. In part it says:
“. . . it is to be remembered that evidence of the conviction of an accomplice of the accused of the offense charged against the accused cannot be received against the accused as tending to prove that the offense charged was committed or that the accused participated in it.” [Paragraph 140&, page 253.]
The presence of error of the kind in issue does not itself justify reversal of the findings of guilty. In must also appear there is a fair risk the error prejudiced the accused. Klose v United States, 49 F 2d 177 (CA 8th Cir); State v Williams, 166 SC 63, 164 SE 415. One learned writer has observed that “it is only when, in the light of all the circumstances attendant upon a trial, the misconduct complained of can be said to have influenced the jury's verdict and prevented a fair trial, that prejudice results.” V. Woerner, Annotation, 48 ALR 2d 1016, 1018. Since [41]*41the error is measured in terms of prejudice at the trial, it is usually not open to the accused on appeal if he failed to object or to request an instruction to disregard the evidence. Annotation, supra, at 1019. The rule of waiver, however, is not inflexible.
If it appears that the prosecuting attorney’s action was a deliberate effort to prejudice the accused, his misconduct may be challenged on appeal, even in the absence of an appropriate objection at the trial level. Leech v People, 112 Colo 120, 146 P 2d 346; People v Ford, 89 Cal App 2d 467, 200 P 2d 867; see also United States v Johnson, 3 USCMA 447, 13 CME 3. Actually, the qualification is merely a specific application of the general rule that an appellate court will notice a trial error, even in the absence of objection, in order to prevent a manifest miscarriage of justice. We can, however, pass over further discussion of this part of the overall problem. While there was no objection to Law’s testimony, there was one to Goodwin’s. Consequently, as far as the need for objection is concerned, the question is adequately preserved for review.
The Government advances several other bases of waiver, from abandonment to cure of the error by other evidence. Only one of these need engage our attention, and that is that the evidence of guilt is so compelling the inadmissible evidence did not harm the accused.
Some courts have held that where the witness testifies to all the circumstances of the act, disclosure of the fact that he pleaded guilty to, or was convicted of, the same offense cannot harm the accused because the jury already knows what the witness has done. State v Williams, supra. Others apparently take a different view. People v Louise, 242 App Div 471, 275 NYS 263; Evans v State, 39 Ala App 498, 105 So 2d 831. We prefer to approach the Government’s argument primarily from the standpoint of evidence other than that given by Law and Goodwin. Since the accused testified in his own behalf, we can appropriately use his testimony to measure the effect of the error.
The accused reviewed for the court-martial all the details of his activities from evening until the early morning hours when he and Goodwin collected garments belonging to sleeping recruits in platoons 4 and 5. Pie admitted that, without authority or right, he took money from these garments and gave part to Goodwin and Law. He said he had been drinking, but he admitted he “knew what purpose . . . [he] had in mind for taking” the clothing. He said he was “going to teach these people a lesson about leaving their money around where people could get it.” He claimed he intended “to hide the money . . . and when . . . the recruits had . . . suffered enough and missed the money . . . [he] was going to return” it to them. He further maintained he told Law and Goodwin he was going to teach the recruits a lesson. He acknowledged, however, that he did not discuss with them his intention to return the money after the recruits had “suffered.” He also testified he had no authority to be in platoon 5 area. It was for that reason he woke Goodwin, who was a member of the 5th platoon, and asked him “if he wanted to' help . . . get some money.” To account for his failure to return the money voluntarily, he said the next morning he learned “they had called the CID.” He realized the seriousness of what he’d done and got “scared.” As a result, he determined not to get implicated any further than he already was and to remain quiet. He confessed he did not know whose wallets or money he had taken, but he insisted he kept an account of the proceeds which he divided into two parts. One part represented the money taken from the recruits in the 5th platoon, and the other consisted of the money taken from the recruits in the 4th platoon. He gave the 5th platoon money to Law and Goodwin because they were in that platoon.
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[40]*40Opinion of the Court
Robert E. Quinn, Chief Judge:
The accused was tried and convicted of larceny. The question before us is whether he was prejudiced by improper conduct of trial counsel.
Appellant was charged with acting in conjunction with Private Ronald E. Goodwin. At trial, the prosecution called two witnesses who were implicated with the accused in the transaction. One was Goodwin. He testified that he helped the accused collect clothing of recruits belonging to the accused’s company, and that together with the accused he extracted money from the clothing and shared in the proceeds. The other witness was, ironically, Private Law. Law’s room was used as a collection point for the clothes and the division of the money. He also shared in the proceeds of the alleged larceny.
The second question put to Law by trial counsel inquired where he was “presently located.” He replied that he was in the “Post Stockade.” After he gave an account of the incident and the extent of his participation in it, he was asked by trial counsel whether he had been “tried for . . . [his] part in this offense.”1 He responded in the affirmative and indicated he was tried for “willfully receiving stolen money.” Similarly, Goodwin was asked, immediately after he testified regarding the division of the money, whether he had been tried and convicted for his part in the affair. He, too, replied in the affirmative.
Defense counsel did not object to the questions asked Law, but he did object to those put to Goodwin. His objection was overruled.
In its brief, the Government assumes “arguendo” that trial counsel acted improperly, but it excuses the error on the ground that the misconduct did not prejudice the accused. That there is error is manifest.
Evidence that one of several accused entered a plea of guilty or was convicted on a separate trial is not admissible on the issue of guilt of another accused. Payton v United States, 222 F 2d 794 (CA DC Cir) (1955); United States v Babb, 218 F 2d 538 (CA 5th Cir) (1955); State v Kerley, 246 NC 157, 97 SE 2d 876. The rule applies not only when the accused are charged with the same offense, but extends to a situation in which the offenses charged arose out of the same circumstances. Thus, in Kirby v United States, 174 US 47, 19 S Ct 574, 43 L ed 890, the Supreme Court held it was error in a prosecution for receiving stolen property to admit evidence that the person who gave the property to the accused had been convicted of stealing the property. See also State v Justesen, 35 Utah 105, 99 Pac 456. The Manual for Courts-Martial refers to the rule in its general discussion on the admissibility of statements of conspirators and accomplices. In part it says:
“. . . it is to be remembered that evidence of the conviction of an accomplice of the accused of the offense charged against the accused cannot be received against the accused as tending to prove that the offense charged was committed or that the accused participated in it.” [Paragraph 140&, page 253.]
The presence of error of the kind in issue does not itself justify reversal of the findings of guilty. In must also appear there is a fair risk the error prejudiced the accused. Klose v United States, 49 F 2d 177 (CA 8th Cir); State v Williams, 166 SC 63, 164 SE 415. One learned writer has observed that “it is only when, in the light of all the circumstances attendant upon a trial, the misconduct complained of can be said to have influenced the jury's verdict and prevented a fair trial, that prejudice results.” V. Woerner, Annotation, 48 ALR 2d 1016, 1018. Since [41]*41the error is measured in terms of prejudice at the trial, it is usually not open to the accused on appeal if he failed to object or to request an instruction to disregard the evidence. Annotation, supra, at 1019. The rule of waiver, however, is not inflexible.
If it appears that the prosecuting attorney’s action was a deliberate effort to prejudice the accused, his misconduct may be challenged on appeal, even in the absence of an appropriate objection at the trial level. Leech v People, 112 Colo 120, 146 P 2d 346; People v Ford, 89 Cal App 2d 467, 200 P 2d 867; see also United States v Johnson, 3 USCMA 447, 13 CME 3. Actually, the qualification is merely a specific application of the general rule that an appellate court will notice a trial error, even in the absence of objection, in order to prevent a manifest miscarriage of justice. We can, however, pass over further discussion of this part of the overall problem. While there was no objection to Law’s testimony, there was one to Goodwin’s. Consequently, as far as the need for objection is concerned, the question is adequately preserved for review.
The Government advances several other bases of waiver, from abandonment to cure of the error by other evidence. Only one of these need engage our attention, and that is that the evidence of guilt is so compelling the inadmissible evidence did not harm the accused.
Some courts have held that where the witness testifies to all the circumstances of the act, disclosure of the fact that he pleaded guilty to, or was convicted of, the same offense cannot harm the accused because the jury already knows what the witness has done. State v Williams, supra. Others apparently take a different view. People v Louise, 242 App Div 471, 275 NYS 263; Evans v State, 39 Ala App 498, 105 So 2d 831. We prefer to approach the Government’s argument primarily from the standpoint of evidence other than that given by Law and Goodwin. Since the accused testified in his own behalf, we can appropriately use his testimony to measure the effect of the error.
The accused reviewed for the court-martial all the details of his activities from evening until the early morning hours when he and Goodwin collected garments belonging to sleeping recruits in platoons 4 and 5. Pie admitted that, without authority or right, he took money from these garments and gave part to Goodwin and Law. He said he had been drinking, but he admitted he “knew what purpose . . . [he] had in mind for taking” the clothing. He said he was “going to teach these people a lesson about leaving their money around where people could get it.” He claimed he intended “to hide the money . . . and when . . . the recruits had . . . suffered enough and missed the money . . . [he] was going to return” it to them. He further maintained he told Law and Goodwin he was going to teach the recruits a lesson. He acknowledged, however, that he did not discuss with them his intention to return the money after the recruits had “suffered.” He also testified he had no authority to be in platoon 5 area. It was for that reason he woke Goodwin, who was a member of the 5th platoon, and asked him “if he wanted to' help . . . get some money.” To account for his failure to return the money voluntarily, he said the next morning he learned “they had called the CID.” He realized the seriousness of what he’d done and got “scared.” As a result, he determined not to get implicated any further than he already was and to remain quiet. He confessed he did not know whose wallets or money he had taken, but he insisted he kept an account of the proceeds which he divided into two parts. One part represented the money taken from the recruits in the 5th platoon, and the other consisted of the money taken from the recruits in the 4th platoon. He gave the 5th platoon money to Law and Goodwin because they were in that platoon. He retained the money belonging to the recruits in the 4th platoon because he was “the only one” from that unit participating in the incident.
It is unmistakably clear that the accused’s guilt or innocence depended upon the evidence as to his intention. [42]*42Defense counsel stressed this fact time and again in his closing argument. He noted that the accused was “the only individual in the entire world who can say what went on inside Humble’s head that night.” He pointed out that the accused had denied he intended anything more than to conceal the money for a time in order to teach the recruits a lesson. He referred to the intentions of Goodwin and Law and admonished the court-martial it could look “only” at the intent of the accused. He also reviewed the division of the money. He emphasized that “those who were present” had “no idea” of the purpose of the division except the accused; and that he had testified to the “absolute unvarnished truth” when he said he had turned the 5th platoon money over to the men from that platoon, while “assuming responsibility” for the money which belonged to the men in his platoon.
The record of trial shows that the court determined to test the truthfulness of the accused’s testimony and the correctness of the defense argument by a simple calculation. Before retiring to deliberate on the issues, it requested information as to the “platoon to which each of the men listed in the Charge belonged.” A stipulation to this effect was entered into the record. The stipulation and the charge, as substantiated by the evidence, show that the amount of money taken from members of the 5th platoon totaled $56.00, whereas that taken from the 4th platoon members amounted to $251.00. Law testified he received $65.00; Goodwin said he got $84.00. Neither was contradicted by the accused. Consequently, the court members could conclude that Law and Goodwin had testified truthfully as to the amount each received. Caminetti v United States, 242 US 470, 494, 61 L ed 442, 37 S Ct 192. The figures provided by them demolished the accused’s claim regarding the division of the money and branded as untrue his testimony that he entertained an innocent intention when he took the clothing of ■sleeping recruits; searched and removed all money therefrom; and secreted his share of the admittedly unauthorized appropriation. We con-elude, therefore, that the error in the admission of evidence of the conviction of Law and Goodwin played no part in the court-martial verdict and was not prejudicial to the accused.
The decision of the board of review is affirmed.