[248]*248Opinion of the Court
Quinn, Chief Judge:
The accused was convicted of rape.1 The question before us is whether the law officer erred to the accused’s prejudice by denying a request for a two-day continuance.
At about 10:00 p.m., on July 28, 1962, Maria Schaepers, a twenty-one-year-old German girl, was suddenly accosted by two colored men. They seized her and dragged her across the road to a wooded area. While one man held her, the other raped her. The assault occurred near the main gate of the Panzer Kaserne in Boeblingen, Germany. Shortly thereafter, German police and Criminal Investigations Detachment agents searched the area of the assault. They found a hair barrette belonging to the victim and a wallet. The latter contained an identification card with the accused’s picture, and numerous papers bearing his name.2 Miss Schaepers identified the picture on the card as that of the man who held her. That evening in a lineup of five persons she picked out the accused as one of the attackers.
A few days after the lineup, a sweater was found in a wall locker in the accused’s billet. It was “positively identified” by Miss Schaepers as that worn by the accused at the time she was assaulted. The locker was assigned to a man who was then on leave in the United States.
The record of the preliminary proceedings indicates the Government intended to introduce the sweater into evidence, and that the accused was prepared to defend against the Government’s effort to connect him with it by a number of witnesses who would testify that, although closely associated with the accused, they had never seen him in possession of the sweater. The sweater was examined on several occasions before trial by both trial counsel and defense counsel, but neither noticed the name “M. D. Thomas” stitched on the inside of the lower border. On the morning of the trial, however, Government counsel discovered the name. He learned that Thomas had been recently transferred from the accused’s company to another company in the same' Kaserne. While he went ahead with the trial of the case, he arranged to have a CID agent bring Thomas to the courtroom and question him about the sweater. Coincidently, defense counsel made the same discovery a few hours later. He saw the name while handling the sweater during cross-examination of the Government witness who had found it. He called attention to the name in his examination of the witness, and established that Thomas was “assigned to the area” at the time of the offense.
Thomas, who is Caucasian, appeared at the place of trial in the afternoon. During a recess, trial counsel informed defense counsel of Thomas’ presence; that the Government would call him as a witness; and that Thomas would testify he sold the sweater to the accused. When court adjourned for the day at 4:35 p.m., defense counsel interrogated Thomas. In the course of the examination, Thomas identified a pair of pants, which the defense had introduced into evidence as Defense Exhibit B, as the pants he had sold to the accused at the same time he sold him the sweater.
Before the court-martial convened for the second day of trial, defense counsel moved for a continuance “of at least two days,” because he did not “feel” he had had “sufficient opportunity to check into .... [Thomas’] background, his reputation for truth and veracity, and for the expected testimony.” The law officer inquired into [249]*249the nature of Thomas’ testimony, and ascertained that defense counsel had interviewed a number of persons as to Thomas’ background. Commenting on Thomas’ identification of Defense Exhibit B as the trousers he sold to the accused, the law officer indicated that the motion would be denied “unless something more comes up.” At the same time, he granted defense counsel time to confer with Thomas’ company commander. About forty-five minutes later court opened. Defense counsel informed the law officer he had had an opportunity to interview Thomas’ commander. He further indicated he wanted to stand on his motion for a continuance, although he had no new matter to present. The motion was denied.
Thomas was called as a Government witness. He testified that in May or June of 1963, he sold the accused a sweater, which he identified as Prosecution Exhibit Number 11, and a pair of pants which were identified as Defense Exhibit B. On cross-examination, defense counsel made no inquiry into the circumstances of the sale, such as whether other persons were present and the terms of payment. He asked Thomas whether he had “ever lied to people” in connection with the repayment of money he owed them; whether he was the father of an illegitimate child;3 and if he had ever borrowed money from the accused.
Whether a continuance should be granted rests within the sound discretion of the law officer. United States v Daniels, 11 USCMA 52, 28 CMR 276. An application for a continuance based on reasonable grounds “should ordinarily be granted.” United States v Nichols, 2 USCMA 27, 36, 6 CMR 27. Liberality of consideration is particularly called for in a capital case such as this. Here, the testimony of the new witness was a strong link in the chain of evidence against the accused. It was proper, if not essential, for the defense to explore the general background of the witness and his specific relations with the accused. A two-day continuance for that purpose was not unreasonable. Counsel does not always have adequate opportunity to examine into and properly evaluate new, significant evidence that comes to his attention while the trial is actually in progress. See United States v Heinel, 9 USCMA 259, 26 CMR 39. The reasonableness of the defense request, however, is not determinative of the question before us; our concern is whether under the circumstances the law officer abused his discretion in refusing it. United States v Rogan, 8 USCMA 739, 25 CMR 243; United States v Nichols, supra, page 34. We turn, therefore, to the matters presented to the law officer.
The accused characterizes Thomas as a “surprise witness.” The description is appropriate insofar as the accused did not expect Thomas to testify, but it is misleading in the implication that often attends the unexpected witness, namely, that the witness and his testimony are totally unknown to the accused. Manifestly, the extent of accused’s previous knowledge of the witness’ character and background and the availability of sources of information to verify or refute the proposed testimony are material factors in determining the need for, and the length of, a request for a continuance to meet the challenge of the “surprise witness.”
The law officer was told the substance of Thomas’ proposed testimony, including the fact that he had identified a pair of pants, already in evidence as Defense Exhibit B and stipulated as belonging to the accused, as the pants he had sold to the accused at the same time he sold him the sweater. He was also advised that defense counsel had questioned Thomas. Yet, in spite of the fact the accused was the purported purchaser, defense counsel was significantly silent about any intention to contest Thomas’ testimony that the sale was made. This omission obviously im[250]*250pressed the law officer.4 He commented on this “connection” between Thomas and the accused. Implicit in his remarks is the conclusion that the real purpose for the continuance was to inquire into Thomas’ general credibility. See United States v Frye, 8 USCMA 137, 139, 23 CMR 361.
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[248]*248Opinion of the Court
Quinn, Chief Judge:
The accused was convicted of rape.1 The question before us is whether the law officer erred to the accused’s prejudice by denying a request for a two-day continuance.
At about 10:00 p.m., on July 28, 1962, Maria Schaepers, a twenty-one-year-old German girl, was suddenly accosted by two colored men. They seized her and dragged her across the road to a wooded area. While one man held her, the other raped her. The assault occurred near the main gate of the Panzer Kaserne in Boeblingen, Germany. Shortly thereafter, German police and Criminal Investigations Detachment agents searched the area of the assault. They found a hair barrette belonging to the victim and a wallet. The latter contained an identification card with the accused’s picture, and numerous papers bearing his name.2 Miss Schaepers identified the picture on the card as that of the man who held her. That evening in a lineup of five persons she picked out the accused as one of the attackers.
A few days after the lineup, a sweater was found in a wall locker in the accused’s billet. It was “positively identified” by Miss Schaepers as that worn by the accused at the time she was assaulted. The locker was assigned to a man who was then on leave in the United States.
The record of the preliminary proceedings indicates the Government intended to introduce the sweater into evidence, and that the accused was prepared to defend against the Government’s effort to connect him with it by a number of witnesses who would testify that, although closely associated with the accused, they had never seen him in possession of the sweater. The sweater was examined on several occasions before trial by both trial counsel and defense counsel, but neither noticed the name “M. D. Thomas” stitched on the inside of the lower border. On the morning of the trial, however, Government counsel discovered the name. He learned that Thomas had been recently transferred from the accused’s company to another company in the same' Kaserne. While he went ahead with the trial of the case, he arranged to have a CID agent bring Thomas to the courtroom and question him about the sweater. Coincidently, defense counsel made the same discovery a few hours later. He saw the name while handling the sweater during cross-examination of the Government witness who had found it. He called attention to the name in his examination of the witness, and established that Thomas was “assigned to the area” at the time of the offense.
Thomas, who is Caucasian, appeared at the place of trial in the afternoon. During a recess, trial counsel informed defense counsel of Thomas’ presence; that the Government would call him as a witness; and that Thomas would testify he sold the sweater to the accused. When court adjourned for the day at 4:35 p.m., defense counsel interrogated Thomas. In the course of the examination, Thomas identified a pair of pants, which the defense had introduced into evidence as Defense Exhibit B, as the pants he had sold to the accused at the same time he sold him the sweater.
Before the court-martial convened for the second day of trial, defense counsel moved for a continuance “of at least two days,” because he did not “feel” he had had “sufficient opportunity to check into .... [Thomas’] background, his reputation for truth and veracity, and for the expected testimony.” The law officer inquired into [249]*249the nature of Thomas’ testimony, and ascertained that defense counsel had interviewed a number of persons as to Thomas’ background. Commenting on Thomas’ identification of Defense Exhibit B as the trousers he sold to the accused, the law officer indicated that the motion would be denied “unless something more comes up.” At the same time, he granted defense counsel time to confer with Thomas’ company commander. About forty-five minutes later court opened. Defense counsel informed the law officer he had had an opportunity to interview Thomas’ commander. He further indicated he wanted to stand on his motion for a continuance, although he had no new matter to present. The motion was denied.
Thomas was called as a Government witness. He testified that in May or June of 1963, he sold the accused a sweater, which he identified as Prosecution Exhibit Number 11, and a pair of pants which were identified as Defense Exhibit B. On cross-examination, defense counsel made no inquiry into the circumstances of the sale, such as whether other persons were present and the terms of payment. He asked Thomas whether he had “ever lied to people” in connection with the repayment of money he owed them; whether he was the father of an illegitimate child;3 and if he had ever borrowed money from the accused.
Whether a continuance should be granted rests within the sound discretion of the law officer. United States v Daniels, 11 USCMA 52, 28 CMR 276. An application for a continuance based on reasonable grounds “should ordinarily be granted.” United States v Nichols, 2 USCMA 27, 36, 6 CMR 27. Liberality of consideration is particularly called for in a capital case such as this. Here, the testimony of the new witness was a strong link in the chain of evidence against the accused. It was proper, if not essential, for the defense to explore the general background of the witness and his specific relations with the accused. A two-day continuance for that purpose was not unreasonable. Counsel does not always have adequate opportunity to examine into and properly evaluate new, significant evidence that comes to his attention while the trial is actually in progress. See United States v Heinel, 9 USCMA 259, 26 CMR 39. The reasonableness of the defense request, however, is not determinative of the question before us; our concern is whether under the circumstances the law officer abused his discretion in refusing it. United States v Rogan, 8 USCMA 739, 25 CMR 243; United States v Nichols, supra, page 34. We turn, therefore, to the matters presented to the law officer.
The accused characterizes Thomas as a “surprise witness.” The description is appropriate insofar as the accused did not expect Thomas to testify, but it is misleading in the implication that often attends the unexpected witness, namely, that the witness and his testimony are totally unknown to the accused. Manifestly, the extent of accused’s previous knowledge of the witness’ character and background and the availability of sources of information to verify or refute the proposed testimony are material factors in determining the need for, and the length of, a request for a continuance to meet the challenge of the “surprise witness.”
The law officer was told the substance of Thomas’ proposed testimony, including the fact that he had identified a pair of pants, already in evidence as Defense Exhibit B and stipulated as belonging to the accused, as the pants he had sold to the accused at the same time he sold him the sweater. He was also advised that defense counsel had questioned Thomas. Yet, in spite of the fact the accused was the purported purchaser, defense counsel was significantly silent about any intention to contest Thomas’ testimony that the sale was made. This omission obviously im[250]*250pressed the law officer.4 He commented on this “connection” between Thomas and the accused. Implicit in his remarks is the conclusion that the real purpose for the continuance was to inquire into Thomas’ general credibility. See United States v Frye, 8 USCMA 137, 139, 23 CMR 361. As to that, the law officer was informed defense counsel had access to Thomas’ military records. Such records often provide material evidence of general character and reliability. United States v Barnhill, 13 USCMA 647, 33 CMR 179. The law officer also knew counsel had conferred with Thomas’ First Sergeant and Personnel Officer. He gave counsel an opportunity to talk to Lieutenant Daniel S. Aikovich, who was Thomas’ then Company Commander, and for four months previous thereto had been Thomas’ platoon leader. He knew Thomas had been in the accused’s immediate unit and that the accused had had dealings with him. He knew Thomas was still in the accused’s Kaserne. Except for the generalized statement about checking the expected testimony, nothing was presented to indicate the defense intended affirmatively to challenge the substance of Thomas’ testimony, although it involved a transaction with the accused. And there was much to show the defense already had substantial evidence of the general background of the witness. Although not mentioned in the arguments before the law officer, the record of trial, and an Article 38 brief (Article 38(c), Uniform Code of Military Justice, 10 USC § 838) filed by defense counsel, indicate defense counsel had also questioned a number of witnesses about Thomas’ character and reputation, and they later testified that Thomas “lied” to them in connection with the repayment of money he owed them. Counsel further ascertained, as noted earlier in the opinion, that Thomas was the father of an illegitimate child, but he was also “an excellent soldier and made Colonel’s Orderly whenever he wanted it.” So far as the Government’s endeavor to connect the sweater to the accused is concerned, we have already pointed out that the record shows the defense had before trial prepared in depth to prove that persons intimately associated with the accused had never seen the sweater in his possession. Without passing on the effect of the accused’s failure to bring these matters to the law officer’s attention, we put them entirely aside in considering the validity of the law officer’s ruling. See United States v Wilson, 10 USCMA 337, 27 CMR 411. In passing, however, it is worth noting that not “to this day . . . [have] appellant’s counsel suggested in what specific area of investigation or preparation, either legal or factual, it was reasonably necessary for the appellant to go into” besides those he already had exhausted. Joseph v United States, 321 F2d 710, 712 (CA 9th Cir) (1963). On the facts presented in this record, we cannot say that as a matter of law the law officer abused his discretion in denying the motion for a continuance. United States v Frye, supra; United States v Rogan, supra.
The decision of the board of review is affirmed.
Judge Kilday concurs.