Opinion of the Court
Paul W. Bkosman, Judge:
A general court-martial convened at La Rochelle, France, on May 1, 1953, found the accused, Stringer, guilty of stealing 24,000 francs from Mrs. Jeanne Ecale, a French National, in violation of the Uniform Code of Military Justice, Article 121, 50 USC §715. The court sentenced him to receive a dishonorable discharge, to total forfeitures of pay and allowances, and to confinement at hard labor for one year. Both the findings and the sentence were approved by the convening authority and affirmed thereafter by a board of review. We granted the accused’s petition for review to determine (1) whether his plea of former jeopardy had been properly overruled at the trial, and (2) whether the law officer erred in admitting over defense objection the deposition of Mrs. Ecale, the victim of the alleged larceny.
II
The accused’s plea stemmed from the circumstance that on April 24, 1953, he had been brought to trial before another court on the identical charge and specification. At that time, the prosecution — stumbling forward with the presentation of its case — offered in evidence the deposition of Mrs. Ecale for the purpose of establishing [127] a corpus delicti for the introduction of statements by the accused. A Private Lee was called to testify to certain somewhat inconclusive admissions made by the accused following the alleged larceny. At the close of the examination of this witness by trial and defense counsel, the second-ranking member of the court, a Lieutenant Colonel Sellers, began to question him. The understandable dissatisfaction of court members with the conduct of the case was suggested by a colloquy held near the end of Colonel Sellers’ interrogation:
“Law OFFICER: I hate to interfere with the court’s questioning, but I don’t see the relation as to whether he knew anyone there or not.
“Lt. Col. Sellers: The evidence which has been produced so far is so ineoncise and confused—
“Law Officer: I am sorry, you are not prosecuting the case.”
Thereafter, Private Lee completed his testimony and the prosecution announced that its next witness would be a Sergeant Atkinson. Before the Sergeant made his entry, the court’s president provoked the following exchange:
“President: . . . Apparently this case is not ready for trial. Under the old Manual I would know what we could have done, but I don’t know now.
“Law Officer: You say this case should not be brought to trial at this time?
“President: I don’t think that justice can be done. We are here to hear a case, and if this is a sample of what we are going to have to hear,
I think the case will have to be better prepared. Otherwise, we will hang the man innocently.
“Law Officer: I wish to point out that the question of hanging a man before there is sufficient evidence is highly improper at this time.
“President: The wording is probably incorrect, but nevertheless, to this moment—
“Law Officer: It is not, sir, the duty of the court or the law officer nor the defense counsel to prepare a case. It is the responsibility of the prosecution, and if the evidence is insufficient, then you have but one alternative, and that is to acquit him.” [Emphasis supplied.]
Following a recess, Sergeant Atkinson testified for the prosecution to the effect that the accused had confessed to him that he had stolen 24,000 francs from a French woman. The written confession was introduced in evidence, and the court adjourned for the day. On reconvention the next morning, trial counsel presented a letter from the convening authority, which recited the remarks of the court’s president, pronounced them “highly prejudicial to both the Government and the accused,” and directed a withdrawal of the charges and a reference to a new court. To this withdrawal the defense counsel objected strenuously. Of course, he reasserted that objection by way of plea in bar when the accused was brought before the second court-martial.
IIT
The Uniform Code — in its Article 44, 50 USC § 619 — reiterates the command of Article of War 40, 10 USC § 1511, that “No person shall, without his consent, be tried a second time for the same offense.” Article 44(e) adds that:
“A proceeding which, subsequent to the introduction of evidence but prior to a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused shall be a trial in the sense of this article.”
Quite clearly, the legislative intendment of this provision was to forbid retrial of an accused when the prosecution had failed to prepare its case properly and thereafter sought to have the charges withdrawn prior to findings for the purpose of presenting a more persuasive one before another court. See, e.g., Hearings before the Senate Committee on Armed Services, 81st Congress, 1st session, on S 857 and HR 4080, pages 323 and 324; Hearings before the House Committee on Armed Services, 81st Congress, 1st session, on [128] HR 2498, pages 671, 802; Cornero v. United States, 48 F2d 69 (CA 9th Cir). In the words of Professor E. M. Morgan, Jr., Chairman of the Forrestal Committee, fairness to an accused requires that a prosecutor “shoot his bolt all at once.” Senate Hearings, supra. The Manual for Courts-Martial, United States, 1951, proceeds in the same tenor and enjoins:
. . The power to withdraw a case after evidence has been taken on the issue of guilt or innocence will be exercised only with the greatest caution, under urgent circumstances, and for very plain and obvious causes. A specification will hot be withdrawn arbitrarily or unfairly to the accused in any case. When a specification is withdrawn after evidence has been taken on the issue of guilt or innocence, the reasons therefor shall be stated in the record of trial.” [Paragraph 56&.]
However, the Manual also provides that “withdrawal of a specification because of manifest necessity in the interest of justice is not a bar to further prosecution.” By way of illustration it adds:
“. . . Thus, if urgent and unforeseen military necessity requires that a trial be terminated, and it does not appear that the military situation will permit resumption of the trial within a reasonable time, the withdrawal of a specification will not prevent a later trial for the same offense. Similarly, if inadmissible information, highly prejudicial to either the Government or the accused, has been brought to the attention of the court, and it appears to the convening authority that the members of the court cannot be reasonably expected to remain uninfluenced thereby, he may withdraw the case from that court and refer it to another court.” [Idem.; see also paragraph 68A]
The wording of these provisions concerning the withdrawal of charges by a convening authority makes it apparent that the Manual’s draftsmen intended to adopt the Federal rule relating to the circumstances under which jeopardy attaches following the presentation of evidence. Cf. Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, pages 63, 88. A foundation case for that rule is United States v. Perez, 9 Wheat 579, 6 L ed 165. The defendant there was being tried for a capital offense, and the jury —unable to agree on a verdict — was discharged by the judge without the consent of the defendant or the attorney for the United States. The defendant’s contention that further trial for the offense was barred was rejected by the Supreme Court which stated:
. . We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.” [Emphasis supplied.]
In Thompson v. United States, 155 US 271, 39 L ed 146, 15 S Ct 73, the Supreme Court cited Perez and two subsequent cases — Simmons v. United States, 142 US 148, 35 L ed 968, 12 S Ct 171, and Logan v. United States, 144 US 263, 36 L ed 429, 12 S Ct 617— for the proposition that:
. . Those cases clearly established the law of this court that courts [129] of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States.” [Emphasis supplied.]
The doctrine of “manifest necessity” was applied in a military setting in Wade v. Hunter, 336 US 684, 93 L ed 974, 69 S Ct 754. Wade had been brought to trial originally in March 1945 at Pfalzfeld, Germany, before a court-martial on a charge of rape. All of the evidence offered by the Government and the defense was in and the court-martial had closed to deliberate. Subsequently a continuance was announced in order that the trial judge advocate might secure other witnesses whom the members of the court wished to hear. Thereafter, the troops of the convening authority advanced farther into Germany, and thus left to their rear the residences of the witnesses in the case. Accordingly, the charges were withdrawn from the first court and the case was transferred to another command believed to be in a more favorable position to try the ease. That command referred the serious charge to a second court-martial before whose members the accused interposed a plea of double jeopardy. The plea was overruled by the court — and, the Supreme Court held, properly so. The Court quoted extensively from the Perez case and asserted:
“. . . And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”
In a recent opinion discussing a claim that a state court had deprived the defendant of the “due process” required by the Fourteenth Amendment, the Supreme Court reaffirmed the doctrine of Perez and Wade v. Hunter to the effect that there exists “discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served.” Brock v. North Carolina, 344 US 424, 97 L ed 456, 73 S Ct 349.
Wade v. Hunter was decided during the course of hearings on'the Uniform Code of Military Justice. On several occasions the case was brought to the attention of the two Congressional committees concerned, and the problem of double jeopardy was discussed and analyzed. House Hearings, supra, pages 669-671, 801, 1048-1051; Senate Hearings, supra, pages 168-170, 323-325. While criticism was heard concerning the narrowness of the former jeopardy doctrine — as some commentators conceived it to exist under Article of War 40 — no inclination was exhibited to accord the serviceman greater protection than that granted his civilian counterpart under the principle of “manifest necessity.” See House Hearings, supra, pages 669-671, 1047; Senate Hearings, supra, pages 167-168, 186, 323-325. Accordingly, it would seem that Congress left the framers of the Manual quite free to adopt for courts-martial' — -as they did — the rules of former jeopardy developed and applied in the Federal civilian courts.
IV
Under our analysis, then, a trial by court-martial may be terminated prior to findings by reason of “manifest necessity” without the attachment of jeopardy. In a civilian court such a termination would be produced through the declaration of a mistrial or some similar action by the trial judge. Who is able to take this action in the instance of a court-martial proceeding? Traditionally, it has been the convening au[130] thority — indeed, he alone — who has been invested with power to end a trial by court-martial prior to findings. Although, the Congressional Committees considering the proposed Uniform Code were distinctly made aware of this circumstance in connection with detailed discussions of Wade v. Hunter, supra— in which a convening authority had withdrawn charges from a military court — no sort of doubt was expressed that the authority to conclude a trial because of “manifest necessity” should reside in this functionary. Moreover, the Code itself in Article 44(c) impliedly recognizes the power of the convening authority to intervene in a proceeding after the presentation of evidence, but prior to findings. The Manual for Courts-Martial too — -contemporaneously applying Congressional intent — recognizes this authority to repose in the convening authority. Paragraph 56.
To be sure, it may be contended that a motion for a mistrial is, in civilian practice, addressed solely to the discretion of the trial judge, and is of no concern to an appellate agency. Accordingly, it is said that, since the law officer — rather than the convening authority — is the military analogue of the trial judge, he and only he should exercise the power to terminate a court-martial proceeding prior to findings. Thus, there would be no authorization for the convening authority himself to withdraw charges.
While all of the members of this Court recognize that, in general, the law officer must be deemed the court-martial’s “judge,” it is undeniable that in some respects Congress did create a different role for him — whether we like it or not. Unlike the civilian judge, he may be overruled by members of the court-martial with respect to a holding on a motion for findings of not guilty. Article 51(6). Also, unlike the civilian judge, he is not permitted to sentence the convicted accused. Article 52. And so on. The present setting is simply another in which one must conclude that Congress has varied for the military the rules which operate in civilian procedure to prevent the declaration of a mistrial by appellate authority.
Several reasons for the Congressional determination in this respect may be surmised. For one thing, the convening authority is apt to be in a relatively better position to ascertain whether, by reason of administrative or military factors, there is “manifest necessity” for the withdrawal of charges. Such military factors are, of course, to be found at the core of Wade v. Hunter, supra. Moreover, Congress may well have believed that inherently the parallelism between civilian and military law administration could not be complete as to mistrials. The civilian trial judge who declares a mistrial is not required to invoke the aid of an appellate agency to impanel a new jury and reopen the proceedings. Contrariwise, if charges are withdrawn from a court-martial, they cannot be brought before another tribunal without the participation of the convening authority in the form of an order re-referring the charges. Since the convening authority must thus enter the picture in any event, Congress may have thought it appropriate to permit him initially to withdraw charges under pressing circumstances. Perhaps, too, it was considered that, if the convening authority noted during the progress of the trial the presence of errors which would lead to disapproval by him of findings of guilty — apart, of course, from insufficiency of the Government’s evidence— he should be allowed to terminate the proceeding instanter. Admittedly, such a doctrine would deprive the accused of the benefits of a situation in which he might win, but could not lose. However, the possibility of this deprivation might conceivably have left the Congress undisturbed. Perhaps, too, the Code did no less than perpetuate unselectively a former rule of law without regard to the new status of the law officer. Regardless of the reasons therefor, we are sure the rule is clear that the convening authority does possess the power to withdraw charges when “manifest necessity” intervenes.
If the convening authority possesses the power to withdraw charges, may the [131] law officer also exercise this authority? As previously emphasized, we have analogized the law officer to the civilian judge, who does possess the power in question. Moreover, one colloquy during the House consideration on the Uniform Code has been believed to indicate that the law officer possesses the authority to withdraw charges:
“MR. LARKIN. It is absolutely binding, except for the fact of course that any member of the court whether he is a lawyer or otherwise may for his own personal reason not follow them, which is a situation that obtains in any court in the land. The judge may rule on the questions of law and he may instruct the jury and charge them and as it happens the jury goes out and pays no attention to them whatever. But that is something over which no one has any control in any tribunal.
“Mr. De Graffenried. He acts as the judge on questions of law?
“Mr. Larkin. That is right. He acts as an outright judge on questions of law and his rulings are final and binding. Whether any individual person decides that he doesn’t want to follow them or not of course is a different problem.
“Mr. Brooks. It is just binding in reference to interlocutory decisions, isn’t it?
“Mr. Larkin. And it is binding on his instructions, before they retire, as to the elements of the offense and on the other law of the case, if necessary.
“Mr. Durham. He would still have the right to rule on a mistrial, wouldn’t he?
“Mr. Larkin. That is right; he has the right. On a motion for a dismissal or a motion for acquittal he has the right to rule, but in that case as in the case of insanity his ruling is subject to veto by the court.” [Emphasis supplied.] [House Hearings, supra, page 1154.]
All of the members of this Court appear to agree generally on the desirability of a rule which would permit the law officer to declare a mistrial. However, the author of the present opinion must confess to substantial misgivings concerning the legislative authorization for this result. One circumstance suggesting these doubts is the fact that all of the Armed Services have ruled consistently that a court-martial, or any element thereof, is without power to declare a mistrial, and that the motion for a mistrial is unknown to military law. See, e.g., United States v. Conway [NCM 228], 11 CMR 625; United States v. Beale [CGCMS 19655], 7 CMR 469; United States v. Simpson [ACM 3430], 4 CMR(AF) 256; United States v. Collins [ACM 2104] 2 CMR (AF) 699; United States v. Stevenson, 45 BR 267, 284. The absence of a clear showing that Congress intended to alter this long-established rule is especially significant, since the attention of its members was specifically directed to the problem of withdrawal of charges.
The reference to “mistrial” at the Hearings is somewhat the less convincing by reason of the circumstance that Congressman Durham — who used the word — is not an attorney by profession, and may not have been speaking of the term in its technical sense. In addition, Mr. Larkin’s quoted response to the Durham inquiry would certainly suggest that the question was interpreted by him as referring to something other than a mistrial in the lawyer’s sense. Furthermore, in view of our conclusion that the convening authority does possess the power to withdraw charges, there is perhaps some reason to believe that the law officer does not do so — since divided authority within the same sphere is ordinarily abhorred by lawmakers. And finally, the circumstance that a civilian court possesses continuity and is able to reopen proceedings following a mistrial • — whereas in military law the convening authority must necessarily intervene for the purpose of referring the case to a new court-martial — might imply that Congress wished the entire matter to rest exclusively in the hands of the convening authority. However, since my brothers are convinced that the law officer does possess the power to declare a mistrial, this ruling must be regarded as constituting the law of the Court.
[132] Y
Irrespective of who may withdraw charges from consideration by a court-martial, it seems clear that this action does not require a request by, or even the consent of, the accused. Indeed, in Perez v. United States, supra — the leading case on former jeopardy — the mistrial was declared wholly without the defendant’s consent. Accord: Gardes v. United States, 87 Fed 172 (CA 5th Cir) cert den 171 US 689, 43 L ed 1179, 19 S Ct 884. Subsequent cases make manifest that, when a free and fair hearing cannot be had, a mistrial should be declared, even in the face of objection by the accused — and that no provision of the Constitution in such circumstances will serve to prevent a further and a better trial. Thompson v. United States, supra; Sanford v. Robbins, 115 F2d 435 (CA5th Cir); Himmelfarb v. United States, 175 F2d 924 (CA9th Cir), cert den, 338 US 860, 94 L ed 527, 70 S Ct 103, (containing a comprehensive collection of authorities); United States v. Giles, 19 F Supp 1009 (WD Okla). Cf. State v. Ravencraft, 222 SC 139, 71 SE2d 798; Mack v. Commonwealth, 177 Va 921, 15 SE2d 62; Commonwealth v. Cronin, 257 Mass 535, 154 NE 176; State v. Slorah, 118 Me 203, 106 Atl 768.
The convening authority here rested his withdrawal on the ground that the president’s remark was prejudicial both to “the Government and the accused.” However, the decision of the board of review centers almost exclusively on the possibility that the remark materially prejudiced the accused. While — as mentioned— charges may properly be withdrawn from a court-martial over the objection of the accused, it would be difficult to sustain action of this nature solely on the ground that it was taken to protect him from prejudice. Such a protection, tendered an accused who protests vehemently against it, savors too strongly of paternalism — and especially so when, as here, the questioned remark of the president indicated to some extent a dissatisfaction with the case’s prosecution, which could scarcely fail to redound to the accused’s benefit. Certainly it could not injure him.
It may be contended that — in light of a possible sinister interpretation of the president’s remark — the accused would have been convicted by the first court-martial in any event, and therefore that,assuming minimum evidential sufficiency, he has no just cause for complaint because the convening authority intervened to prevent the senseless formality of permitting findings of guilty, at a time when he was aware that thereafter he would be required to direct a rehearing. However, we do not believe that the president’s utterance should be given the construction on which this argument would necessarily be grounded. More fundamentally, the absence of former jeopardy will not be rested by us on a prospective disregard by court members of their duty to acquit when they do not genuinely believe the evidence to demonstrate guilt beyond a reasonable doubt.
Concerning prejudice to the Government, it is obvious that, by the time of the president’s remark, at least some members of the court-martial had become distinctly critical of the prosecution. However, this hostility was related to real or fancied deficiencies in the handling of the Government’s case, and thus amounted to no more than the normal risk — assumed by any party to litigation — that the trier of fact will dislike his attorney’s presentation. No marked friendliness to the accused had been voiced by the court. Cf. Manual, 63/ (13). No closed mind was revealed by any member as to subsequent evidence to be offered by the Government —an attitude which would certainly indicate disqualification. Cf. Manual, 62/ (10). No one could contend that the president’s utterance indicated so massive — so inordinate — a hostility to the prosecution that the court-martial would acquit at any cost.
The true “necessity” for withdrawing the charges here — if any — arises solely from the untoward appearance created by the remarks of the president. As the Manual indicates in its treatment of the subject of challenges, a trial must be kept “free from substantial doubt as to legality, fairness and [133] impartiality.” Paragraph 62/(13). To some extent, this goal envisages more than the mere rendition of correct decisions in particular cases. A judicial system operates effectively only with public confidence — and, naturally, that trust exists only if there also exists a belief that triers of fact act fairly. What general confidence would- — or could — be reposed in findings of guilty returned by a court-martial whose president had suggested that its members might “hang the man innocently” ? Could respect be granted the determinations of a tribunal which had so much as intimated that it had prejudged the matter in hearing?
Even the accused’s consent to the trial’s continuation would not operate to remove the criticism that he had been adjudged guilty by a group whose members had predetermined the issues. Sight simply would be lost in the public mind of the circumstance that he had been a willing participant. Moreover, claims might well be advanced that his consent resulted from the belief that any other court appointed by the convening authority would also have prejudged the issues, from the undue pressure of his appointed counsel, from the latter’s ineptitude, or from a possible distaste for having to await a second trial. Perhaps, too, the accused might disavow subsequently the consent expressed by his assigned lawyer, and insist that trial by a fair tribunal is a right too important to be permitted to constitute a proper subject of waiver through action of counsel. Cf. Him-melfarb v. United States, supra.
Of course — and despite the introduction at the first trial of the accused’s apparently voluntary confession of crime — it would have been within the court’s power to have acquitted him. However, an acquittal, too, might have been suspect in the public mind. It might, in fact, be suggested that the members of the court recognized the untoward character of the president’s comment and wished to avoid criticism at higher levels by means of acquitting the accused and thereby precluding review. And others might conclude that the court had bent backward in an attempt to neutralize the effect of the president’s remarks — and thus had failed to perform its sworn duty. See Manual, paragraph 74a(3), page 114. In short, after the president’s utterance, action of any nature by the court-martial of which he was a member would doubtless command but scant public respect. Thus, from the standpoint of maintaining general confidence in military law administration, it might properly have been deemed desirable to halt the proceedings as promptly as possible, and to begin them anew in a different forum.
Earlier the belief was indicated that military law now incorporates the Federal rule governing former jeopardy. As all of us understand that rule, power exists to terminate a proceeding without the accrual of double jeopardy if the public interest demands. Within this context — it has been suggested — the term “public interest” connotes more than a correct determination of issues in a particular case. Cf. United States v. Adamiak, 4 USCMA 412, 16 CMR 412; Stone v. United States, 113 F2d 70 (CA6th Cir); Ryan v. United States, 191 F2d 779 (CA DC Cir). This premise is especially important here — for the record of trial leaves little doubt that the president’s utterance revealed nothing which would necessarily have interfered with a sound decision. The choice of unfortunate language on his part does not destroy the rather clear inference that he was chiefly concerned with getting at the facts. Such conscientiousness can hardly interfere with a fair trial.
It seems certain that the remark having to do with “hanging” an accused person “innocently” was not genuinely meant to imply that the court would convict one whom its members did not believe to be guilty beyond a reasonable doubt. Instead, the phrase simply signified that the court-martial desired the presentation of more than a prima facie case. A court-martial must determine guilt beyond a reasonable doubt on the evidence before it. It is undeniable that there have been both civilian and military trials where available evidence was not presented which might have altered the outcome in one direction or the other. In such instances — and obr [134] viously- — it is not the blame of the jury, or the court-martial, that justice miscarries. In the instant case it is probable that the president was seeking to avoid such a miscarriage by means of a sharply phrased request that the Government do a better job than trial counsel had at the time achieved in investigating the facts in controversy and presenting them in court. This request— differently worded — could have injured the legal rights of no interest.
The manner of phrasing that request was, however, so misleading as to bring into operation values transcending the parties before the court. Cf. United States v. McNabb, 318 US 332, 87 L ed 819, 63 S Ct 608; Malinski v. New York, 324 US 401, 89 L ed 1029, 65 S Ct 781. Such considerations are indeed akin to those underlying the doctrines of “general prejudice” and “military due process,” and serve fully to sustain the convening authority’s withdrawal of the charges from the first court-martial.
Whether findings of guilty, or a sentence rendered thereon by the court-martial, could have with- stood appellate review is a matter unnecessary for decision. Especially in light of the absence of objection by the defense to the president’s language, it is probable that such findings could have been affirmed.1 On the other hand, and in view of the unfortunate and confidence-destroying appearance raised here, a convening authority would not have been exceeding the bounds of proper discretion by disapproving findings of guilty and ordering a rehearing. Under such circumstances it does not seem that as a general proposition a convening authority is required to permit a trial to proceed to judgment, and thereafter to direct a rehearing as to any findings of guilt which may result. Indeed, as might be inferred from the previous discussion, Congress did not intend to confer on an accused — either under Article 44 of the Code or otherwise — a right to be placed, by reason of trial incidents beyond the control of the Government, in such a position that he may win and cannot lose in a trial. Cf. United States v. Giles, supra; Mack v. Commonwealth, supra; State v. Slorah, supra.
It has been suggested that — despite his reliance on the regrettable strictures of the court’s president as grounds for withdrawing the charges — the convening authority was in fact motivated by a desire to retrieve a case which had in effect been lost through trial counsel’s ineptitude. If this notion were to be accepted, former jeopardy would indeed apply — for we could not sanction the second trial if it seemed reasonably apparent that because of a want of evidence, the Government had failed originally to make a showing of merit. Cornero v. United States, supra.
It is manifest that the remarks of court members- — although not attributable directly to the Government— stemmed from an understandable displeasure with the trial counsel’s case, as presented at the time of the utterance of those comments. The assertions by the court’s president and the earlier comment by Colonel Sellers suggest that these officers were then unconvinced of the accused’s guilt. Indeed, the evidence presented at that point would scarcely have convinced any court-martial. Accordingly, if no further evidence had been forthcoming, little doubt could be entertained that a second trial was precluded — for it is certain that trial counsel will not be encouraged by us in the sloppy preparation of cases. In our view, it would be distinctly unjust to subject the accused to the inconvenience and expense of defending himself doubly under the same charge — merely because the prosecution was so unready when the case was called for trial in the first instance as to provoke the intemperate comment of court members.
The feature which distinguishes the instant case from one in which the [135] prosecutor is rescued from a failure to prove his case is, of course, that- — prior to the president’s injudicious comment —trial counsel had announced the calling of a further witness, Sergeant Atkinson. That witness testified that he had received a confession from the accused — one which was complete and unchallenged as to voluntariness. Consistent with the familiar dictum that a voluntary confession is the “highest order of proof,” one can only conclude that the prosecution had not offered the core of its case when the president spoke. It is difficult to conclude that the court would later have ignored the confession, and would have persisted in an initial belief that guilt had not been shown beyond a reasonable doubt. Thus, it is almost impossible to view the withdrawal of the charges as depriving the accused of a probable acquittal — and as a consequence one conceivable element of unfairness is eliminated, which otherwise would constitute a premise for holding that jeopardy had attached.
VI
Although we were to hold that the law officer alone — and not the convening authority — possessed the power to withdraw charges during the course of a court-martial proceeding, it would not follow that jeopardy had accrued here. To be sure, under this hypothesis some variety of “command influence” would have been present. However, the existence of this vice is normally remedied by a rehearing, and does not require the dismissal of charges. Yet to hold here that “command influence” produced former jeopardy would for all practical purposes equate to dismissing the charges against the accused. The evil at which Article 44 was directed — as clearly demonstrated by the legislative hearings — was the withdrawal of charges prior to findings when the Government had failed to prove its case. Since the instant record does not reveal this situation, no predicate exists in Article 44 for a holding of former jeopardy. And it is clear that Article 44 was intended by the Code’s draftsmen to cover the entire field in this regard.
Moreover, although we now rule that the law officer has — since the enactment of the Code — possessed the authority to declare a mistrial, it would appear, in light of the unbroken chain of precedents to the contrary, that he was totally unaware that he did so. Indeed — and quite clearly — he would have supposed that the withdrawal of charges could be accomplished by the convening authority alone. Thus, it may be inferred that the parties to the trial at no time received the benefit of a conscious ruling by the law officer on the appropriateness and desirability of a declaration of mistrial.
The record fails to disclose how, or at whose instance, the convening authority became apprised of the president’s utterance. Quite possibly it was brought to his attention by the law officer, who may well have suggested that the charges be withdrawn — this in the belief that he, the law officer, wanted power to take such action. The record of trial certainly fails to exclude such a possibility. The burden of producing evidence to sustain a plea of former jeopardy has consistently been placed on the defendant. See, e.g., Kastel v. United States, 23 F2d 156 (CA2d Cir); United States v. Giles, supra; Mack v. Commonwealth, supra; Commonwealth v. Cronin, supra. Although we were to hold that the law officer alone possessed authority to withdraw charges, the accused’s evidence would nonetheless be fatally defective in failing to exclude the possibility that the former had in fact constituted the ultimate source of the action here.
VII
Moving to the second issue of this case, we now proceed to consider the admissibility of the deposi- tion of Mrs. Ecale. The taking of this deposition was ordered by the convening authority before reference of the charges — on the ground that, as a French National, she would not be amenable to court-martial process. When that deposition was tendered in evidence against Sergeant Stringer at the second hearing, his [136] counsel objected to its admission on several grounds. The fifth of these was that, although the witness resided at Poitiers, France — and thus within 100 miles of La Rochelle, at which the court-martial was sitting — no showing was made that she would not or could not respond and appear. Without passing on other objections, we must conclude that consideration of the deposition by the court was precluded by failure of the prosecution to lay a proper foundation.
Article 49(d) of the Uniform Code of Military Justice, 50 USC § 624, provides that in noncapital cases depositions may be admitted:
. . if it appears—
“(1) that the witness resides or is beyond the State, Territory, or District in which the court, commission, or board is ordered to sit, or beyond the distance of one hundred miles from the place of trial or hearing; or
“ (2) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or
“(3) that the present whereabouts of the witness is unknown.”
The words “State, Territory, or District” refer obviously to geographic areas within the United States and its territorial possessions. Since the court-martial was sitting in France, this portion of Article 49 (d) (1) is without application. The witness resided at the time of the deposition within 100 miles of the locus of the court-martial — and it must be presumed that she continued to reside there when the trial began. Manual for Courts-Martial, paragraph 138a. Thus, Article 49(d) (1) is wholly inapplicable. In light of the same presumption of continuing residence, the whereabouts of Mrs. Ecale at the time of trial would appear to be “known,” rather than the contrary. Therefore, Article 49 (d) (3) is likewise inapplicable.
She was not amenable to American subpoena by reason of her status as a French National — and no treaty with France has been brought to our attention which alters this premise. However, for Article 49(d) (2) to come into play there must be shown an inability, or a refusal, to testify. No inability to testify is apparent in the record. Nothing in the deposition, or otherwise, suggests that Mrs. Ecale was in ill health. And the record fails to recite unavailability of transport at the time. Nor is any sort of refusal to testify revealed. In short, we have no single shred of information indicating that Mrs. Ecale would not have come to La Rochelle to testify in person, had trial counsel asked that she do so. ,
Under these circumstances it does not “appear” that the Government sought to erect at the trial any of the foundations for admissibility delineated in Article 49 (d). Cf. Andrews v. Hotel Sherman, 138 F2d 524 (CA7th Cir). Accordingly, reception of the deposition constituted error. United States v. Barcomb, 2 USCMA 92, 6 CMR 92. Certain courts have accepted in civil cases the scantiest proof of witness unavailability. See, e.g., Frederick v. Yellow Cab Co. of Philadelphia, 200 F2d 483 (CA3d Cir). Yet we are sure that even they would not go so far as to sanction here the substitution of a deposition for the testimony of Mrs. Ecale in open court. Cf. Smith v. United States, 106 F2d 726 (CA4th Cir); Brooks v. State, 69 Ga App 697, 26 SE 2d 549; Inda v. State, 198 Wis 557, 224 NW 733; People v. Rinesmith, 40 Cal App2d 786, 105 P2d 1021; People v. Kuranoff, 100 Cal App2d 673, 224 P2d 402. We consider it no undue burden to require that the prosecution — when it seeks to use a deposition — communicate with a nearby foreign witness, notify him of the expected date of trial, request his attendance, and advise him of any departmental regulations authorizing a fee for such attendance.
VIII
Absent the deposition, the Government was without a corpus delicti to support reception of the confessions. Therefore, irrespective of our disposition of the double jeopardy issue, the [137] findings cannot stand. While the author of this opinion does not consider that the second proceeding was precluded by the principle of double jeopardy — and thus differs from the views of his brothers — he harbors no doubt that the interests of justice will now be best served by a dismissal of the charges. Accordingly, the findings and sentence are disapproved and the charges dismissed.