Opinion of the Court
GEORGE W. LatimeR, Judge:
The. accused was found guilty of three violations of the Uniform Code of Military Justice. The only one of impor[221]*221tance in this decision is the conviction of malingering, arising out of a charge of shooting himself in the hand to avoid service. Accused was originally sentenced to a bad-conduct discharge, total forfeitures, and confinement for three years. The convening authority, however, reduced the confinement to one year, and a board of review, after setting aside the findings of guilty on the malingering charge, approved only so much of the sentence as included forfeiture of $50.00 per month for four months and confinement at hard labor for four months.
The reason the board of review set aside the finding on malingering was because of a holding that a deposition which was ¡admitted in evidence denied the accused his right to be confronted by the witnesses testifying against him. The Judge Advocate General of the Navy seeks a determination of that issue and has certified the question to us for our determination. We prefer to discuss the question by breaking it into two parts: (1) Is a deposition taken on written interrogatories admissible when objected to because the accused was not present at the taking and did not waive his right to be present? (2) Does the fact that the counsel who represented the accused on the preparation of the deposition was not the same counsel who represented him at the trial affect its admissibility?
It may clarify the issues to set out the particular procedure used in this case. The alleged offense was committed on June 30, 1951. The investigating officer recommended trial by general court-martial on July ■ 13, 1951; but, due to hospitalization of the accused, his absence without leave and other delays, trial was not held until March 27, 1952. The court was appointed on February 26, 1952, and the membership included one defense counsel and four assistant defense counsel, all certified in accordance with Article 27(b), Uniform Code of Military Justice, 50 USC § 591. One of the appointed assistant defense counsel was First Lieutenant Gordon W. Nelson who represented the accused at the time the interrogatories were prepared. When the interrogatories were submitted to him, he indicated in writing on the form that he did not care to submit cross-interrogatories. After preparation, and on or about the 13th day of February 1952, the deposition was forwarded to the Commanding General, 1st Marine Division, in Korea as the witness was then a member of that command. The witness subscribed to the deposition on February 28, 1952, and it was then returned for use at the trial. The defense counsel who represented the accused at the preparation of the deposition was not the same defense counsel who represented him at the trial as he was relieved during the interim period between the preparation of the questions and the commencement of the trial.
The theory of defense was that the shooting was accidental. Accused stated that while policing the firing range area, he noticed one rifle in a stack with a swivel twisted around the sight. He stated he slapped the sight and the gun accidentally discharged, striking him in the palm of his right hand. The theory of the Government was that the wound was self-inflicted. To support this theory, trial counsel introduced evidence to show that the guns in question had been stacked in a rack in the usual manner with the bolts open and locked, to avoid any chance of additional discharge; that an empty cartridge case was found near the rifle rack shortly after the accused was injured; that he was seen with two unexpended .30 cali-bre rounds in his possession immediately prior to the shooting, although the accused stated -he had thrown them away. To cinch his theory, trial counsel introduced into evidence a deposition of a soldier who had talked to the accused on the day in question. The evidence in the deposition consisted, in part, of a conversation between the witness and the accused. The following is the witness’ version:
“He [the accused] said he was going to get out of the Marine Corps and I asked him how. He said he would be out before the day was gone and I said that was impossible. He said he would get out by his own means. He asked what would happen if a fellow was, to shoot himself. I said ‘You don’t have the nerve to’. [222]*222If I remember, he said he did have the nerve to shoot himself. . . .
“He was still talking about getting out of the Marine Corps and I was still asking him how. He said he had his own way. That he would use his own way.
“I remember once he picked up a couple of live rounds on the firing line.
“All I can say I saw was two .30 caliber rounds.”
The board of review in its holding concluded the accused had been denied the right of confrontation, because he was neither present at the time and place when the witness answered the question, nor did he waive his right to be present. The board relied upon our decision in United States v. Clay (No. 49), 1 USCMA 74, 1 CMR 74, decided November 27, 1951, wherein we enumerated some of the rights and privileges which were bundled together and labelled as a part of “military due process.” Included within those enumerated was the right to be confronted by witnesses. In using that case for the foundation of its opinion, the board of review relied on the following excerpts:
“There are certain standards in the military accusatorial system which have been specifically set by Congress and which we must demand be observed in the trials of military offenses. Some of these are more important than others, but all are of sufficient importance to be a significant part of military law. We conceive these rights to mold into a pattern similar to that developed in Federal civilian cases. For lack of a more descriptive phrase, we label the pattern as ‘military due process’ and then point up the minimum standards which are the frametoorlc for this concept and luhich must be met before the accused can be legally convicted.
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Opinion of the Court
GEORGE W. LatimeR, Judge:
The. accused was found guilty of three violations of the Uniform Code of Military Justice. The only one of impor[221]*221tance in this decision is the conviction of malingering, arising out of a charge of shooting himself in the hand to avoid service. Accused was originally sentenced to a bad-conduct discharge, total forfeitures, and confinement for three years. The convening authority, however, reduced the confinement to one year, and a board of review, after setting aside the findings of guilty on the malingering charge, approved only so much of the sentence as included forfeiture of $50.00 per month for four months and confinement at hard labor for four months.
The reason the board of review set aside the finding on malingering was because of a holding that a deposition which was ¡admitted in evidence denied the accused his right to be confronted by the witnesses testifying against him. The Judge Advocate General of the Navy seeks a determination of that issue and has certified the question to us for our determination. We prefer to discuss the question by breaking it into two parts: (1) Is a deposition taken on written interrogatories admissible when objected to because the accused was not present at the taking and did not waive his right to be present? (2) Does the fact that the counsel who represented the accused on the preparation of the deposition was not the same counsel who represented him at the trial affect its admissibility?
It may clarify the issues to set out the particular procedure used in this case. The alleged offense was committed on June 30, 1951. The investigating officer recommended trial by general court-martial on July ■ 13, 1951; but, due to hospitalization of the accused, his absence without leave and other delays, trial was not held until March 27, 1952. The court was appointed on February 26, 1952, and the membership included one defense counsel and four assistant defense counsel, all certified in accordance with Article 27(b), Uniform Code of Military Justice, 50 USC § 591. One of the appointed assistant defense counsel was First Lieutenant Gordon W. Nelson who represented the accused at the time the interrogatories were prepared. When the interrogatories were submitted to him, he indicated in writing on the form that he did not care to submit cross-interrogatories. After preparation, and on or about the 13th day of February 1952, the deposition was forwarded to the Commanding General, 1st Marine Division, in Korea as the witness was then a member of that command. The witness subscribed to the deposition on February 28, 1952, and it was then returned for use at the trial. The defense counsel who represented the accused at the preparation of the deposition was not the same defense counsel who represented him at the trial as he was relieved during the interim period between the preparation of the questions and the commencement of the trial.
The theory of defense was that the shooting was accidental. Accused stated that while policing the firing range area, he noticed one rifle in a stack with a swivel twisted around the sight. He stated he slapped the sight and the gun accidentally discharged, striking him in the palm of his right hand. The theory of the Government was that the wound was self-inflicted. To support this theory, trial counsel introduced evidence to show that the guns in question had been stacked in a rack in the usual manner with the bolts open and locked, to avoid any chance of additional discharge; that an empty cartridge case was found near the rifle rack shortly after the accused was injured; that he was seen with two unexpended .30 cali-bre rounds in his possession immediately prior to the shooting, although the accused stated -he had thrown them away. To cinch his theory, trial counsel introduced into evidence a deposition of a soldier who had talked to the accused on the day in question. The evidence in the deposition consisted, in part, of a conversation between the witness and the accused. The following is the witness’ version:
“He [the accused] said he was going to get out of the Marine Corps and I asked him how. He said he would be out before the day was gone and I said that was impossible. He said he would get out by his own means. He asked what would happen if a fellow was, to shoot himself. I said ‘You don’t have the nerve to’. [222]*222If I remember, he said he did have the nerve to shoot himself. . . .
“He was still talking about getting out of the Marine Corps and I was still asking him how. He said he had his own way. That he would use his own way.
“I remember once he picked up a couple of live rounds on the firing line.
“All I can say I saw was two .30 caliber rounds.”
The board of review in its holding concluded the accused had been denied the right of confrontation, because he was neither present at the time and place when the witness answered the question, nor did he waive his right to be present. The board relied upon our decision in United States v. Clay (No. 49), 1 USCMA 74, 1 CMR 74, decided November 27, 1951, wherein we enumerated some of the rights and privileges which were bundled together and labelled as a part of “military due process.” Included within those enumerated was the right to be confronted by witnesses. In using that case for the foundation of its opinion, the board of review relied on the following excerpts:
“There are certain standards in the military accusatorial system which have been specifically set by Congress and which we must demand be observed in the trials of military offenses. Some of these are more important than others, but all are of sufficient importance to be a significant part of military law. We conceive these rights to mold into a pattern similar to that developed in Federal civilian cases. For lack of a more descriptive phrase, we label the pattern as ‘military due process’ and then point up the minimum standards which are the frametoorlc for this concept and luhich must be met before the accused can be legally convicted. The Uniform Code of Military Justice, supra, contemplates that he be given a fair trial and it corn-mands us to see that the proceedings in the courts below reach that standard.
“. . . For our purposes, and in keeping with the principles of military justice developed over the years, we do not bottom those rights and privileges on the. Constitution. We base them on the laws as enacted by Congress. But, this does not mean that we can not give the same legal effect to the rights granted by Congress to military personnel as do civilian courts to those granted to civilians by the Constitution or by other Federal statutes.
“As we have stated in previous opinions, we believe Congress intended, insofar as reasonably possible, to place military justice on the same plane as civilian justice ....
“A cursory inspection of the Uniform Code of Military Justice, supra, discloses that Congress granted to an accused the following rights which parallel those accorded to defendants in civilian courts: ... to be confronted by witnesses testifying against him . . . [Emphasis supplied].
We recognize the probability that if the last sentence is considered separately and apart from the other reasoning, it would appear to support the holding of the board. However, when interpreted in the light of other statements, it appears to us to bespeak a different principle. In testing the privilege to be confronted by witnesses, the board of review went to the Federal civilian cases for the law and sought to make the military law conform. In some instances this might be an acceptable method of approach but for reasons which will be later amplified, all it would accomplish in this instance is to defeat the clearly expressed intent of Congress. We do not believe that result is required by our holding in United States v. Clay, supra. In that ease we specifically stated we were building “military due process” on the laws enacted by Congress and not on the guarantees found in the Constitution. Particularly were we speaking of the Uniform Code of Military Justice as [223]*223the source and strength of military due process. Therefore, when we enumerated confrontation of witnesses as one of the privileges accorded an accused by Congress, we had to be considering it in the light of any limitations set out in the Code. Surely we are seeking to place military justice on the same plane as civilian justice but we are 'powerless to do that in those instances where Congress has set out legally, clearly, and specifically a different level.
In comparing the military criminal law with the civilian criminal law, we find that in the latter the principle has long been established that depositions may only be taken upon motion by the defendant and then only on order of the court after an appropriate showing. See Rule 15, Federal Rules of Criminal Procedure. The principle in the military criminal law is firmly fixed to the contrary. In Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, there is a footnote on the bottom of page 352 which states as follows:
“It may be noted that in the earliest provision on this subject — the original of the present Article in our law, viz., a Resolution of Congress of Nov. 16, 1779, there is no such restriction, the statute providing in general terms — ‘That in cases not capital in trials by court-martial, depositions may be given in evidence,’ &e. 3 Jour. Cong., 392.”
To show the historical development of the rule, we quote from some of the earlier legislation. In the American Articles of War of 1806, Article 74 provided as follows:
“Art. 74. On the trials of cases not capital, before courts-martial, the deposition of witnesses, not in the line or staff of the army, may be taken before some justice of the peace, and read in evidence; provided the prosecutor and person accused are present at the taking the same, or are duly notified thereof.”
It is well worth noting that in this Article some consideration was given to the possibility that an accused might be present. However, subsequent articles have by implication repealed that provision.
Article 91 of the American Articles of War of 1874 provided:
“Art. 91. — The depositions of witnesses, residing beyond the limits of the State, Territory, or district in which any military court may be ordered to sit, if taken on reasonable notice to the opposite party and duly authenticated, may be read in evidence before such court in cases not capital.”
In 1917 the previous Article 91 was embodied in Article of War 25. That Article madé some amendments to the previous article which may be observed in the following quotation:
“Art. 25. — Depositions — When Admissible. — A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go 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 when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprisonment, or other reasonable cause, is unable to' appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases.”
The Navy rule has followed a somewhat similar pattern although the maximum sentence imposable was greatly reduced when depositions were used. The early Navy rule was that the party —prosecutor or defendant — desiring depositions, submitted to the court a list of interrogatories which should be propounded to the absent witness. Then the opposite party, after being allowed a reasonable time for this purpose, prepared and submitted a list of cross-in[224]*224terrogatories. After being executed by the witness, the deposition was returned to The Judge Advocate, who became the legal custodian, and he retained’ it until introduced into evidence. When introduced by the prosecution, the maximum punishment imposable could not exceed confinement for more than one year.
With an historical background of that length and consistency, it would take a positive expression by Congress to the contrary before we would feel justified in inferring that a change in the law was intended. But Congress did not express a desire for a change. On the contrary, it re-enacted, in substance, the time honored rule. The Uniform Code of Military Justice, Article 49, 50 USC § 624, now in effect, provides as follows:
“(a) At any time after charges have been signed as provided in article 30, any party may take oral or written depositions unless an authority competent to convene a court-martial for the trial of such charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate officers to represent the prosecution and the defense and may authorize such officers to take the deposition of any witness.
“(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.
“(d) A duly authenticated deposition taken upon reasonable notice to the other party, so far as otherwise admissible under the rules of evidence, may be read in evidence before any military court or commission in any case not capital. . .
This Article goes on to prescribe that admissibility is contingent upon the witness’ residing or being located beyond the State, Territory, or District in which the court is ordered to sit, or beyond a distance of 100 miles from the place of trial. There can be no question that the deposition herein meets these requirements for admission as, at the time the deposition was taken, the witness was in Korea.
It will be noted that Article 49 provides for both oral and written depositions by either party and the Manual amplifies , those particular provisions. The procedure is set forth in paragraph 117b of the Manual for Courts-Martial, United States, 1951, which provides in part as follows:
“Ordinarily, the side (prosecution or defense) desiring a deposition on written interrogatories will submit to opposing counsel a list of written interrogatories to be propounded to the absent witness. After opposing counsel has examined the interrogatories and has been allowed a reasonable time for the preparation of cross-interrogatories and objections, if any, the papers (with objections noted thereon) will be submitted to the convening authority or to the law officer (president of a special court-martial), depending on whether the court is in session. . . . Additional interrogatories may be propounded on behalf of the convening authority or the court as may be necessary to elucidate the whole subject of the testimony to be given by the witness.
“If the court desires the deposition of a witness it may direct counsel to submit appropriate interrogatories to the court. In any case, all parties in interest will be given full opportunity to submit cross-interrogatories and additional interrogatories, direct and cross, as desired. When the defense in a capital case submits interrogatories, cross-interrogatories may be submitted to the same extent as in a case not capital.”
The rationale of the Navy board of review seems to be that the provisions of the Code and the Manual, if literally applied, clash with our holding in Clay, supra, and to escape this, all can be reconciled by limiting the use of depositions to those instances when the accused can be present. Even were we to- assume there was some conflict, (which we do not, this would not solve the problem as we cannot, by judicial legislation, rewrite an act of Congress, and were we to write such a limitation into the Code, we would do just that. It seems crystal clear that Congress had [225]*225no intention of limiting the use of a deposition to those cases where an accused could be present at the time of its taking. The Code specifically provides for written depositions and implicit in this procedure is the contemplation that an .accused will not be present. Even in civilian jurisdictions the defendant seldom is present when depositions are executed. If 'he could be, oral examination probably .would be resorted to. Congress was familiar with the difficulties encountered in trying military offenses, particularly under wartime conditions. Transporting military witnesses over long distances might interfere with their tactical use and affect their unit’s efficiency. Moreover, in view of the fact there are no satisfactory methods of permitting accused persons to be free on bond or on their own recognizance, it would be impossible for an accused to be present unless he was transported at' the expense of the United States Government and under appropriate guard.' It is reasonable to conclude that because of these inherent difficulties Congress permitted the taking of a deposition, by the prosecution, if notice thereof was given to the accused, his counsel, or an officer designated to represent him in the taking of the deposition.
This particular case offers a good reason why Congress could not have intended to require the presence of the accused at the taking of the depositions. The trial was held at Camp Pendleton, California, and the witness was in the combat area in Korea. If it were necessary for the accused to be present, it would have required that either he be transported to Korea or the witness returned to the United States. Undoubtedly it would have been more economical to have returned the witness to the States but his services to a combat unit would have been lost for a substantial period of time. To adopt that procedure might elevate the role of a witness to one of being a commercial tourist. Not only does the rule announced by the board of review make prosecution in this case impracticable, it would have the same effect in much of the litigation handled by courts-martial. Presently a great many of the offenses are corn-mitted in Korea or other far away places and military personnel are always on the move. Individuals are being transported to and from the combat areas and rotation is being carried on. Within the combat zone, the shifting of troops makes the tenure of a soldier in any given area short and questionable. Courts-martial are not stationary as they move with the troops and civilian witnesses residing in foreign countries are soon lost. It would be next to impossible to retain witnesses within the general area of the court without doing a grave injustice to them or to the military criminal system.
An entirely different picture is presented in civilian practice. The situs of courts and domiciles of individuals are for the most part fixed and the witnesses ordinarily live in close proximity to the scene of the crime. The case can usually be set for trial at a time convenient to the witnesses and transportation to bring them to the place of trial is available. The Government is not faced with insurmountable handicaps or interference with the war effort by transporting them to the place of trial. A rule should be founded in reason and if the reason fails, the rule falls.' Here the reason which supports the civilian rule fails when applied to the military. We, therefore, do not believe it should be made the basis to defeat the expressed will of Congress.
Professor Wigmore in discussing the problem in the civilian sphere states the main objective embodied within the right of confrontation is to secure to the accused the right of cross-examination, and the secondary or subordinate objective is to permit the triers of fact to observe the demeanor and assess the credibility of a witness. In discussing these objectives he states:
“The question then, whether there is a right to be confronted with opposing witnesses is essentially a question whether there is a right to cross-examine. If there has been a Cross-examination, there has been a Confrontation. The satisfaction of the right of Cross-examination . . . disposes of any objection based on the so-called right of Confrontation.
[226]*226“Nevertheless, the secondary advantage, incidentally obtained from the tribunal by the witness’ presence before it — the demeanor-evidence— is an advantage to be insisted upon wherever it can be had. No one has doubted that it is highly desirable, if only it is available. But it is merely desirable. Where it cannot be obtained, the requirement ceases. It is no essential part of the notion of confrontation . . . [Wigmore, Evidence, 3d ed., § 1396].
As to the contention that the use of depositions is prohibited because of constitutional proscriptions, Wigmore continues:
“There never was at common law any recognized right to an indispensable thing called Confrontation as distinguished from Cross-examination. There was a right to cross-examination as indispensable, and that right was involved in and secured by confrontation; it was the same right under different names. This much is clear enough from the history of the Heai-say rule (ante, § 1364), and from the continuous understanding and exposition of the idea of confrontation (ante, § 1395). It follows that, if the accused has had the benefit of cross-examination, he has had the very privilege secured to him by the Constitution.” [Wigmore, Evidence, 3d ed., § 1397].
In the instant ease the accused was accorded the right of cross-examination as a • legally trained lawyer who had been appointed to represent him was served with a copy of the interrogatories and had an opportunity to propose cross-questions. While it may be preferable, we do not find it essential that the same person represent the ac-caused at the preparation of the depositions as represents him at the trial. However, it is necessary when the deposition is to be used in a general court-martial that he be represented at the former by legally trained counsel. This accused was accorded that right and the right of cross-examination but he was denied the secondary advantage. This is a penalty which Congress has said he must pay because of the limitations inherent in the military system. The right of an accused in all instances to be confronted by witnesses and the right of the Government to take depositions by written interrogatories are inconsistent. What may be desirable must give way to the absolute necessities of the services. Congress has given both parties the right to obtain evidence by the taking of depositions and has excluded their admission into evidence only in cases involving capital offenses. We can do no less than follow its dictates.
Defense counsel further contends that the mandatory provisions of Article 49 of the Code and paragraph H7; Manual for Courts-Martial, United States, 1951, were not complied with. He bases this contention on the fact that the counsel who represented the accused at the trial was not present at the time the depositions were prepared. We do not believe the change in representation violated the spirit or the language of the Code. As previously stated, the counsel who represented the accused in the preparation of the deposition was legally qualified within the meaning of Article 27 (b) of the Code, supra, and could have represented him at the trial. He was only one of four assistant defense counsel who had been previously appointed to represent persons to be tried before the particular general court-martial. Between the time of the preparation of the depositions and the time of trial, he was relieved as a member of the court and we must assume this was occasioned by a transfer from the command or for some other valid reason. Here again we run into the necessities of the service. Members of the legal profession must be moved and so the personnel of a court is changing constantly. There is no contention that bad faith or an ulterior purpose brought about this change. Nor is there any assertion that counsel who tried the case was not of the same caliber as the counsel who handled the deposition. As a matter of fact, the convening authority was not ungenerous with accused. The Manual provides that it is not necessary that officers designated to [227]*227represent the parties in preparing depositions be legally qualified officers. It further provides that if the officer appointed to represent the prosecution is qualified,- the officer detailed to represent the defense must have at least equivalent qualifications. The convening authority in this instance saw to it that both counsel were qualified lawyers and that their qualifications were equivalent. Having done so, he complied with the Manual provisions and the change in counsel does not render the depositions subject to attack.
The question certified by The Judge Advocate General of the Navy is answered in the affirmative and the decision of the board of review is reversed.'