Opinion of the Court
Quinn, Chief Judge:
The accused seeks reversal of his conviction by general court-martial for assault with the intentional infliction of grievous bodily harm, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928.
The charges arose out of an incident in a restaurant bar at about 3:30 a.m. The victim, Captain David Dalton, and two companions occupied a table adjoining that at which the accused and a group of enlisted airmen were seated. Some words passed between the accused and Captain Samuelson, a member of Captain Dalton’s party. Captain Dalton spoke to the accused and another member of his group and the “situation seemed relatively calmed down.” A short time later, the accused and Captain Samuelson had a brief physical contact, as a result of which the accused kept “stomping around” and directing “hard looks” at Captain Samuelson. Not long thereafter the officers left. In the restaurant parking lot, which was sufficiently well lighted to provide, as a defense witness testified, “a pretty fair view,” Captain Dalton leaned on a car. He talked to one of the members of his group, who was seated inside the car. Suddenly he was stabbed from behind. The blow caused him to collapse. As he fell, he turned and saw the accused run from the area. The Captain saw no one else in the immediate vicinity, but seconds later, as he attempted to rise, he was struck on the head with a bottle by Airman Thomas Moore. Moore had been with the accused in the restaurant. Moore then ran off; and Captain Dalton lapsed into unconsciousness. Airman Frank Wharton also testified that he saw the accused run away from Captain Dalton’s side. It seemed to him that just before the accused ran, the ac[643]*643cused had been “punching” the Captain. According to Wharton, the path of the accused took him just in front of the place at which he was standing; he saw the accused had “something” in his hand, which “looked like a straight razor.” Like Captain Dalton, he noticed no one else “right around” there when the accused was alongside the Captain.
Captain Dalton was taken to a military hospital. In the opinion of the examining doctor, the Captain had been cut with a sharp instrument, which penetrated six to seven inches into the abdominal cavity and. perforated a loop of the small bowel. The doctor further testified that the wound could have caused Captain Dalton’s death.
For its first witness, the defense called Airman Moore. After he had been sworn, and had given his name and organization, the president of the court-martial interrupted his examination. What followed provides the basis for the accused’s first assignment of error:
“PRES: Sir, there is a document that appeared before this court in some unknown manner. It charges violation of the Uniform Code of Military Justice, Article 128. This concerns an Airman Third Class Thomas M. Moore.
“LO: Will you give this to the trial counsel, please, Mr. President.
“(The document was given to trial counsel.)
“LO: Have all the members of the court seen this particular document?
“PRES: No, sir. I saw it. I did not read it entirely.
“LO: May I see it?
“(The trial counsel proffered the document to the law officer.)
“LO: Mr. President, you state that you saw it but you did not read it. Are you not acquainted with the contents of it?
“PRES: Not other than the violation of Article 128. and that the name of the individual was Thomas M. Moore. The witness just called stated his name as Thomas M. Moore.
“LO: I would like to have this document marked as Appellate Exhibit 1 and it will be attached to the record of trial. (The exhibit was marked by the reporter.) Unless there are objections by either counsel, we will duly proceed with the trial. As I understand it, none of the court members have seen it except the president.
“LT COL ROSSER: I read it in its entirety when I first came in here. I thought it was this. (The court member referred to a copy of the charges pertaining to the accused.) When Colonel Krause came in and opened the procédure guide, this paper was in it.1 He laid it down and I saw it at that time. So I have read it in its entirety.
“LO: Lt Colonel Rosser has seen this document in its entirety and the president has not read it but is acquainted with what it is. In my opinion, there is no basis for a mistrial. As I understand, Mr. President, this was found in your book of instructions by the previous president, was laid over to the side and Lt. Colonel Rosser read it at that time. ' ■
“LT COL ROSSER: Maybe this was incorrect, but after I had read it I put it under here and when this name was called, I called it to Colonel Taylor’s attention, because I realized this was the name of the witness that had been called.
“LO: I am asking these questions to get this in the record for the purpose of review. In my opinion this is not a matter which would call for mistrial. Therefore, we will proceed.”
The writing referred to in the colloquy between the law officer and the court members had no title or other reference to identify it as part of any [644]*644other document'. The text is a typewritten charge and specification alleging that Airman Third Class Thomas M. Moore unlawfully struck Captain David R. Dalton on the head with a bottle. The accused contends that the writing reflects so unfavorably upon Moore that the law officer, on his own initiative, should have probed more fully into its effect upon the court members. . His failure to do so, says the accused, constituted prejudicial error.
Initially, there is a substantial question as to whether the accused should be allowed on this appeal to reverse his trial position. At trial, defense counsel did not request further inquiry. This action was consistent with the defense strategy, as disclosed in the final arguments. Although Moore was presented as a friendly defense witness, defense counsel argued that the evidence showed it was more likely that he, rather than the accused, stabbed Captain Dalton. His argument drew silent, but material, support from the suggestion that a formal charge of assault had been laid against Moore. When an accused uses a trial incident for his own advantage, he ordinarily cannot later contend on appeal that the incident was prejudicial to him. However, the Government has not pressed the point and accused urges us to consider the merits. .
A mistrial is “a drastic remedy.” 23A CJS, Criminal Law, § 1382, page 1025. It cannot be declared for an insubstantial reason. Downum v United States, 372 US 734, 10 L ed 2d 100, 83 S Ct 1033 (1963). While the courts have not attempted to catalogue all the occasions that justify a mistrial, the guiding rule is that the surrounding circumstances must demonstrate a manifest necessity to terminate the trial to preserve the ends of public justice. United States v Walter, 14 USCMA 142, 145, 33 CMR 354; United States v Johnpier, 12 USCMA 90, 30 CMR 90. In United States v Waldron, 15 USCMA 628, 36 CMR 126, we considered the general question of a mistrial based upon circumstances affecting a witness, as distinguished from those relating to a party.
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Opinion of the Court
Quinn, Chief Judge:
The accused seeks reversal of his conviction by general court-martial for assault with the intentional infliction of grievous bodily harm, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928.
The charges arose out of an incident in a restaurant bar at about 3:30 a.m. The victim, Captain David Dalton, and two companions occupied a table adjoining that at which the accused and a group of enlisted airmen were seated. Some words passed between the accused and Captain Samuelson, a member of Captain Dalton’s party. Captain Dalton spoke to the accused and another member of his group and the “situation seemed relatively calmed down.” A short time later, the accused and Captain Samuelson had a brief physical contact, as a result of which the accused kept “stomping around” and directing “hard looks” at Captain Samuelson. Not long thereafter the officers left. In the restaurant parking lot, which was sufficiently well lighted to provide, as a defense witness testified, “a pretty fair view,” Captain Dalton leaned on a car. He talked to one of the members of his group, who was seated inside the car. Suddenly he was stabbed from behind. The blow caused him to collapse. As he fell, he turned and saw the accused run from the area. The Captain saw no one else in the immediate vicinity, but seconds later, as he attempted to rise, he was struck on the head with a bottle by Airman Thomas Moore. Moore had been with the accused in the restaurant. Moore then ran off; and Captain Dalton lapsed into unconsciousness. Airman Frank Wharton also testified that he saw the accused run away from Captain Dalton’s side. It seemed to him that just before the accused ran, the ac[643]*643cused had been “punching” the Captain. According to Wharton, the path of the accused took him just in front of the place at which he was standing; he saw the accused had “something” in his hand, which “looked like a straight razor.” Like Captain Dalton, he noticed no one else “right around” there when the accused was alongside the Captain.
Captain Dalton was taken to a military hospital. In the opinion of the examining doctor, the Captain had been cut with a sharp instrument, which penetrated six to seven inches into the abdominal cavity and. perforated a loop of the small bowel. The doctor further testified that the wound could have caused Captain Dalton’s death.
For its first witness, the defense called Airman Moore. After he had been sworn, and had given his name and organization, the president of the court-martial interrupted his examination. What followed provides the basis for the accused’s first assignment of error:
“PRES: Sir, there is a document that appeared before this court in some unknown manner. It charges violation of the Uniform Code of Military Justice, Article 128. This concerns an Airman Third Class Thomas M. Moore.
“LO: Will you give this to the trial counsel, please, Mr. President.
“(The document was given to trial counsel.)
“LO: Have all the members of the court seen this particular document?
“PRES: No, sir. I saw it. I did not read it entirely.
“LO: May I see it?
“(The trial counsel proffered the document to the law officer.)
“LO: Mr. President, you state that you saw it but you did not read it. Are you not acquainted with the contents of it?
“PRES: Not other than the violation of Article 128. and that the name of the individual was Thomas M. Moore. The witness just called stated his name as Thomas M. Moore.
“LO: I would like to have this document marked as Appellate Exhibit 1 and it will be attached to the record of trial. (The exhibit was marked by the reporter.) Unless there are objections by either counsel, we will duly proceed with the trial. As I understand it, none of the court members have seen it except the president.
“LT COL ROSSER: I read it in its entirety when I first came in here. I thought it was this. (The court member referred to a copy of the charges pertaining to the accused.) When Colonel Krause came in and opened the procédure guide, this paper was in it.1 He laid it down and I saw it at that time. So I have read it in its entirety.
“LO: Lt Colonel Rosser has seen this document in its entirety and the president has not read it but is acquainted with what it is. In my opinion, there is no basis for a mistrial. As I understand, Mr. President, this was found in your book of instructions by the previous president, was laid over to the side and Lt. Colonel Rosser read it at that time. ' ■
“LT COL ROSSER: Maybe this was incorrect, but after I had read it I put it under here and when this name was called, I called it to Colonel Taylor’s attention, because I realized this was the name of the witness that had been called.
“LO: I am asking these questions to get this in the record for the purpose of review. In my opinion this is not a matter which would call for mistrial. Therefore, we will proceed.”
The writing referred to in the colloquy between the law officer and the court members had no title or other reference to identify it as part of any [644]*644other document'. The text is a typewritten charge and specification alleging that Airman Third Class Thomas M. Moore unlawfully struck Captain David R. Dalton on the head with a bottle. The accused contends that the writing reflects so unfavorably upon Moore that the law officer, on his own initiative, should have probed more fully into its effect upon the court members. . His failure to do so, says the accused, constituted prejudicial error.
Initially, there is a substantial question as to whether the accused should be allowed on this appeal to reverse his trial position. At trial, defense counsel did not request further inquiry. This action was consistent with the defense strategy, as disclosed in the final arguments. Although Moore was presented as a friendly defense witness, defense counsel argued that the evidence showed it was more likely that he, rather than the accused, stabbed Captain Dalton. His argument drew silent, but material, support from the suggestion that a formal charge of assault had been laid against Moore. When an accused uses a trial incident for his own advantage, he ordinarily cannot later contend on appeal that the incident was prejudicial to him. However, the Government has not pressed the point and accused urges us to consider the merits. .
A mistrial is “a drastic remedy.” 23A CJS, Criminal Law, § 1382, page 1025. It cannot be declared for an insubstantial reason. Downum v United States, 372 US 734, 10 L ed 2d 100, 83 S Ct 1033 (1963). While the courts have not attempted to catalogue all the occasions that justify a mistrial, the guiding rule is that the surrounding circumstances must demonstrate a manifest necessity to terminate the trial to preserve the ends of public justice. United States v Walter, 14 USCMA 142, 145, 33 CMR 354; United States v Johnpier, 12 USCMA 90, 30 CMR 90. In United States v Waldron, 15 USCMA 628, 36 CMR 126, we considered the general question of a mistrial based upon circumstances affecting a witness, as distinguished from those relating to a party. We pointed out that a preexisting, fixed prejudice against a necessary witness may be as destructive of the integrity of the trial as a fixed prejudice against a party.
Appellate defense counsel describe Moore as a “key” defense witness. For purposes of this appeal, we accept the description. But, the centrality of Moore’s position to the defense case does not answer the question of the court-martial’s attitude toward him. In other words, the real question is: Did the court members, by reason of reading the paper indicating a charge had been made against him, acquire so fixed an opinion of Moore’s credibility as to make it likely they would judge his truthfulness upon the basis of this preexisting opinion, rather than the actual evidence?
Only two of the six members of the court-martial saw the paper or knew its contents. One of the two, the president, had not read the document in its entirety. His comments leave no doubt that he had not formed an opinion about Moore’s credibility as a result of what he read. The other member, Colonel Rosser, read the writing “in its entirety.” His remarks indicate he attached no importance to it until Moore appeared as a witness. By that time, the court-martial had heard direct testimony from Captain Dalton about Moore’s assault upon him. The Captain’s testimony had been admitted without defense objection, and, as noted above, it fitted in with the defense strategy of also attributing to Moore the stabbing of Captain Dalton. The writing, therefore, added nothing to the evidence, except that a formal charge may have been lodged against Moore for the assault. Consequently, if Colonel Rosser had any impression as to Moore’s credibility, it was more likely the result of the evidence than what he had read in the paper he found in the trial guide. Even in the worst possible light, however, if there [645]*645was a basis for further inquiry, only he was affected. Where only one of six members of the court-martial is subject to a possible challenge for cause, and the remaining members are not likely to be influenced by the challenge, no manifest necessity for a mistrial is apparent. United States v Waldron, supra. The need is even less apparent if, as here, defense counsel evinces no interest in asserting any challenge. On this record, the law officer was entirely correct in concluding the incident did not justify a mistrial.
The accused’s second assignment of error also concerns the witness Moore. On direct examination, Moore testified, in substance, that he saw Airman Ronald Hill standing over Captain Dalton; and he did not see the accused anywhere in the area. On cross-examination, Moore admitted he made previous statements inconsistent with his testimony. The most significant of these is one, made a few days after the stabbing, in which he said he saw the accused standing over Captain Dalton when the Captain was on the ground, and another in which he said he did not know who was standing over Captain Dalton.
Neither during Moore’s testimony, nor at any other time, did the law officer instruct the court members on the purpose or the effect of Moore’s pretrial inconsistent statements. No request for an instruction was made by defense counsel. However, the accused now contends the law officer committed prejudicial error by failing to instruct the court members sua sponte that Moore’s previous inconsistent statements could be considered only for the limited purpose of impeaching his credibility. See United States v Bryant, 12 USCMA 111, 115, 30 CMR 111; United States v Abernathy, 24 CMR 765, 773-774. Cf. United States v Curry, — F2d — (CA 2d Cir) (1965).
As the staff judge advocate noted in the post-trial review, one is “hard put to argue seriously that the court could possibly attach any weight whatsoever to anything” Moore said. His testimony is evasive, inconsistent, and virtually incredible. Certainly, the court-martial could disbelieve him completely, but whether we should, we need not decide. See Jackson v United States, — F2d — (CA DC Cir) (1965). When a witness is impeached by showing he previously made an inconsistent statement, the “law officer . . . should instruct the court” that the previous statement can be considered only in connection with the credibility of the witness, and not to establish the truth of the matters asserted in the statement. Manual for Courts-Martial, United States, 1951, paragraph 1535(2) (c), page 293; cf. United States v Curry, supra. In United States v Narens, 7 USCMA 176, 181, 21 CMR 302, we said:
“Impeachment is permitted to enable a party to eliminate, as far as possible, the adverse effect of the witness’ testimony. Its function, therefore, is to annul harmful testimony, not to present independent, substantive evidence;”
The previous statement considered most damaging to the accused is the one in which Moore said he saw Captain Dalton on the ground, with the accused “standing over him.” At trial, Moore testified he did not see the accused “at all in this area,” but rather he saw Airman Hill. Assuming the absence of the limiting instruction led the court-martial to consider Moore’s previous statement as evidence on the merits, there is still no fair risk that this consideration prejudiced the accused. Before Moore testified, the Government had woven a tight net of guilt around the accused. Medical testimony established that Captain Dalton had been stabbed with a ' sharp instrument. Captain Dalton admitted that, at the moment of impact, he did not see the person who stabbed him, but he also testified that, ,as he felt the impact, he turned around and saw the accused running away. There was no doubt in his mind that no one else was in the immediate area. Under extensive cross-examination by defense counsel, his identification of [646]*646the accused was unshaken. In addition, Airman Wharton testified he saw the accused apparently “punching” Captain Dalton; and when the accused ran away, Wharton saw “something” in his hand that looked like a straight razor. Wharton also saw no one else in the area at that moment. Consequently, Moore’s previous statement was patently cumulative. If it had any impact upon the court members it was minimal. The law officer’s failure to give a limiting instruction does not, therefore, justify reversal of the findings of guilty. United States v DeBell, 11 USCMA 45, 28 CMR 269; Simmons v United States, 308 F2d 324 (CA DC Cir) (1962); Engram v United States, 325 F2d 226 (CA DC Cir) (1963), certiorari denied, 379 US 980, 13 L ed 2d 570, 85 S Ct 684 (1965).
The decision of the board of review is affirmed.
Judge Kilday concurs.