Opinion of the Court
ROBERT E. Quinn, Chief Judge:
Brought to trial before a general court-martial, the accused entered a plea of guilty to a charge of escape from the post stockade on July 6, 1958, and a plea of not guilty to a specification of attempted escape on July 28, 1958. He was convicted of both charges and sentenced to a dishonorable discharge, total forfeiture, and confinement at hard labor for two years. The convening authority approved the conviction, and the board of review affirmed that action, but reduced the period of confinement to one year.
On this appeal, the accused contends he was prejudiced by the law officer’s ruling and trial counsel’s arguments on certain evidence relating to the attempted escape charge. The circumstances giving rise to the assignment of error are as follows. The accused was confined in the Center Stockade, Fort Stewart, Georgia. Two wire fences separated by about twelve feet surrounded the stockade. The inside fence was between six and seven feet in height, depending upon the terrain, while the outside fence was nine feet high. Both fences had a barbed wire extension of about one foot on the top. At about 9:00 a. m., on July 28, 1958, Sergeant Brown who was standing at the compound gate observed the accused, and prisoners DeShazo and En-derton, lined up on a road inside the compound. One was on one side of the road; another was in the middle; and the third as on the opposite side of the road. From their position Sergeant Brown thought they were “going to police up, and . . , didn’t pay too much attention” to them. He turned around to speak to someone. When he faced back into the compound he saw “three people running toward the fence.” It appeared to him that “one man was behind the other.” He told the gate guard to go “around by the side” and try to stop them. The prisoners climbed the first fence. According to Sergeant Brown, DeShazo cleared the second fence, Enderton reached the top of that fence, but seemed to be having trouble with the barbed wire. From Brown’s angle of vision the accused appeared to be “directly behind Ender-ton” and “approximately half way up” the second fence. Brown said he “hadn’t seen anything like it ... I mean, people going over the way the men went over the fence.” At that point there was rifle fire. Enderton “jumped to the ground” on the outside of the fence, but the accused “fell back in between the fences.”
The accused testified in his own behalf. He denied that he intended to escape. He said that he had been relieved of his job in the mess hall and detailed to accompany Enderton, who was suffering from “nervous spells.” At the time of his assignment, he was informed by a sergeant that if “anything happened” to Enderton he would be “held responsible for his actions.” [430] On the morning of the attempted escape he maintained that he tried to stop Enderton. He testified he jumped from the inner fence to the outer and caught Enderton’s foot, but was kicked or shaken loose. He fell to the ground just as the firing started. When the shooting stopped he got up and walked to the main gate.
To corroborate the accused’s testimony, the defense called a number of witnesses. Lieutenant Rowland, the confinement officer, testified that the accused was taken off his job as cook and told “to look out for” Enderton; thereafter, the accused “more or less appoint [ed] himself as a watch guard for En-derton.” The Lieutenant also testified that it was possible for a person “standing upon the lower fence” to push off “with a great deal of force and land almost up against the second fence.” En-derton testified that the accused knew nothing of his plan with DeShazo to escape and that the accused tried to stop him from going over the outer fence, but he kicked himself loose. DeShazo said the accused called to Enderton to stop. Other prisoners testified, in substance, that the accused “grabbed” En-derton and tried to pull him back, but Enderton kicked himself loose and went over the outer fence.
In an attempt to discredit the defense version of the incident, trial counsel determined by cross-examination of the accused that he went over the first fence at “just about the place” that Enderton did. He then called Lieutenant Rowland as a rebuttal witness for the Government. The Lieutenant testified that about an hour and a half after the incident he examined an area between the two fences and found three sets of footprints in the sand. They were rather deep, of different size, and about five feet apart. On cross-examination, the witness admitted he had not seen the escape and his only knowledge of the place at which it occurred was “what someone” had told him. Defense counsel then moved to strike the testimony about the footprints because it was connected to the accused only by hearsay. The law officer ruled that the evidence would be accepted “subject to the footprints being connected to the accused.” He pointed out to trial counsel that the evidence was “only connected by hearsay.” When trial counsel completed his examination of the witness, defense counsel renewed his objection. The following colloquy took place:
“DC: In other words, you are . . . May I state my opinion of your ruling? You are then ruling that this is being provisionally accepted subject to connecting up, and it is not now presently admissible.
“LO: That is correct.
“TC: Sir, I request that it now be admitted before the court insomuch as we have had two, at least, competent witnesses, Specialist Bell and Sergeant Brown, who have testified that they saw three prisoners go over the fence approximately an hour and a half before Lt Rowland’s examination in that one and only general area which is not possible to measure by feet. But the entire area, according to Lt Rowland, was examined.
“LO: Well, I don’t recall you asking them the distance from Tower Number 2. Perhaps you did. Did you establish the approximate distance from Tower Number 2 that the people went over on the same date and time?
“TC: To my recollection, they went to the corner they claim in their testimony, although I am not positive. I can establish that later. Excuse me. I withdraw my request.”
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
Brought to trial before a general court-martial, the accused entered a plea of guilty to a charge of escape from the post stockade on July 6, 1958, and a plea of not guilty to a specification of attempted escape on July 28, 1958. He was convicted of both charges and sentenced to a dishonorable discharge, total forfeiture, and confinement at hard labor for two years. The convening authority approved the conviction, and the board of review affirmed that action, but reduced the period of confinement to one year.
On this appeal, the accused contends he was prejudiced by the law officer’s ruling and trial counsel’s arguments on certain evidence relating to the attempted escape charge. The circumstances giving rise to the assignment of error are as follows. The accused was confined in the Center Stockade, Fort Stewart, Georgia. Two wire fences separated by about twelve feet surrounded the stockade. The inside fence was between six and seven feet in height, depending upon the terrain, while the outside fence was nine feet high. Both fences had a barbed wire extension of about one foot on the top. At about 9:00 a. m., on July 28, 1958, Sergeant Brown who was standing at the compound gate observed the accused, and prisoners DeShazo and En-derton, lined up on a road inside the compound. One was on one side of the road; another was in the middle; and the third as on the opposite side of the road. From their position Sergeant Brown thought they were “going to police up, and . . , didn’t pay too much attention” to them. He turned around to speak to someone. When he faced back into the compound he saw “three people running toward the fence.” It appeared to him that “one man was behind the other.” He told the gate guard to go “around by the side” and try to stop them. The prisoners climbed the first fence. According to Sergeant Brown, DeShazo cleared the second fence, Enderton reached the top of that fence, but seemed to be having trouble with the barbed wire. From Brown’s angle of vision the accused appeared to be “directly behind Ender-ton” and “approximately half way up” the second fence. Brown said he “hadn’t seen anything like it ... I mean, people going over the way the men went over the fence.” At that point there was rifle fire. Enderton “jumped to the ground” on the outside of the fence, but the accused “fell back in between the fences.”
The accused testified in his own behalf. He denied that he intended to escape. He said that he had been relieved of his job in the mess hall and detailed to accompany Enderton, who was suffering from “nervous spells.” At the time of his assignment, he was informed by a sergeant that if “anything happened” to Enderton he would be “held responsible for his actions.” [430] On the morning of the attempted escape he maintained that he tried to stop Enderton. He testified he jumped from the inner fence to the outer and caught Enderton’s foot, but was kicked or shaken loose. He fell to the ground just as the firing started. When the shooting stopped he got up and walked to the main gate.
To corroborate the accused’s testimony, the defense called a number of witnesses. Lieutenant Rowland, the confinement officer, testified that the accused was taken off his job as cook and told “to look out for” Enderton; thereafter, the accused “more or less appoint [ed] himself as a watch guard for En-derton.” The Lieutenant also testified that it was possible for a person “standing upon the lower fence” to push off “with a great deal of force and land almost up against the second fence.” En-derton testified that the accused knew nothing of his plan with DeShazo to escape and that the accused tried to stop him from going over the outer fence, but he kicked himself loose. DeShazo said the accused called to Enderton to stop. Other prisoners testified, in substance, that the accused “grabbed” En-derton and tried to pull him back, but Enderton kicked himself loose and went over the outer fence.
In an attempt to discredit the defense version of the incident, trial counsel determined by cross-examination of the accused that he went over the first fence at “just about the place” that Enderton did. He then called Lieutenant Rowland as a rebuttal witness for the Government. The Lieutenant testified that about an hour and a half after the incident he examined an area between the two fences and found three sets of footprints in the sand. They were rather deep, of different size, and about five feet apart. On cross-examination, the witness admitted he had not seen the escape and his only knowledge of the place at which it occurred was “what someone” had told him. Defense counsel then moved to strike the testimony about the footprints because it was connected to the accused only by hearsay. The law officer ruled that the evidence would be accepted “subject to the footprints being connected to the accused.” He pointed out to trial counsel that the evidence was “only connected by hearsay.” When trial counsel completed his examination of the witness, defense counsel renewed his objection. The following colloquy took place:
“DC: In other words, you are . . . May I state my opinion of your ruling? You are then ruling that this is being provisionally accepted subject to connecting up, and it is not now presently admissible.
“LO: That is correct.
“TC: Sir, I request that it now be admitted before the court insomuch as we have had two, at least, competent witnesses, Specialist Bell and Sergeant Brown, who have testified that they saw three prisoners go over the fence approximately an hour and a half before Lt Rowland’s examination in that one and only general area which is not possible to measure by feet. But the entire area, according to Lt Rowland, was examined.
“LO: Well, I don’t recall you asking them the distance from Tower Number 2. Perhaps you did. Did you establish the approximate distance from Tower Number 2 that the people went over on the same date and time?
“TC: To my recollection, they went to the corner they claim in their testimony, although I am not positive. I can establish that later. Excuse me. I withdraw my request.”
Lieutenant Rowland was questioned by defense counsel, and by several members of the court, about various aspects of his footprint testimony. After several other Government rebuttal witnesses testified on other matters, the prosecution rested. Defense counsel again renewed his objection to the testimony about the footprints. Trial counsel argued that he had established a sufficient connection, but the law officer ruled that there was “no evidence [431] sufficiently connecting the footprints with the spot that the people went over the fence.” He added that unless the prosecution presented other evidence, “then the evidence [of the footprints] will not be admitted.” Trial counsel remarked that he would not “bother to do that” and in fact offered no other evidence on the matter. The law officer then said: “I will make my ruling at the conclusion of the evidence when both sides have rested. It is possible the court might want to know something about it if the prosecution doesn’t want to worry about it.” Counsel proceeded with their final arguments. In the course of his closing argument, trial counsel referred to the footprints as evidence supporting the Government’s case. The law officer instructed the court-martial in detail on appropriate principles of law but he made no mention of the footprint evidence.
The board of review below held that as a result of the law officer’s actions the court-martial had no clear “directive” as to whether they could consider the footprint evidence. The board of review assumed the court-martial considered the evidence, but it held that if the consideration was erroneous the accused’s “story” was incredible and, consequently, he was not prejudiced by the error. We reach a different conclusion.
Defense counsel’s statement of the effect of the law officer’s initial ruling, which was specifically con-curred in by the law officer, clearly shows that the footprint testimony was not to be considered by the court-martial. Consequently, trial counsel erred in arguing that the evidence supported the Government’s position. Also the law officer erred in failing to instruct the court-martial to disregard it. In our opinion, these errors prejudiced the accused.
The board of review characterized the accused’s testimony as incredible. The characterization disregards the very substantial corroboration the accused received from Enderton and DeShazo and a number of other defense witnesses. It also disregards Lieutenant. Rowland’s testimony about the possibility of jumping from one fence to the other and the testimony of the defense witness who said he actually saw the accused jump from one fence to the other and that it appeared to him the accused might have “grab [bed] Enderton’s pants leg or pants.” True the court-martial could have disbelieved all the defense testimony, but it cannot be described as incredible or unworthy of belief as a matter of law. In our opinion, there was a real risk that the footprint evidence influenced the court-martial in its deliberations on the accused’s guilt or innocence.
In view of our conclusion on the first issue, it is unnecessary to consider the accused’s second assignment of error which relates to the law officer’s instruction on reasonable doubt.
The findings of guilty of the Additional Charge and its specification and the sentence are set aside. The record of trial is returned to The Judge Advocate General for submission to the board of review. In its discretion, the board of review can dismiss the Additional Charge and reassess the sentence on the remaining findings of guilty, or order a rehearing on the charge and the sentence.
Judge FERGUSON concurs.