
    UNITED STATES, Appellee v THEODORE E. BARBEN, Private, U. S. Army, Appellant
    14 USCMA 198, 33 CMR 410
    No. 16,896
    August 16, 1963
    ■ Lieutenant Colonel Ralph Herrod and Captain Charles W. Schiesser were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Francis M. Cooper and First Lieutenant William L. Leonard were on the brief for Appellee, United States.
   Opinion of the Court

Per Curiam:

The accused originally pleaded guilty to a charge of wrongful appropriation, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. While testifying in mitigation and extenuation, he made statements inconsistent with that plea, and the law officer set it aside, declaring a mistrial to which the defense agreed.

Thereafter, accused was arraigned upon the same charge and specification before another court-martial and pleaded not guilty. After the prosecution had offered its evidence and rested, accused elected to testify in his own defense. On cross-examination, trial counsel questioned accused as to the admissions of guilt which he made to the law officer at the earlier trial during a preliminary inquiry into the providence of his plea. Such cross-examination was prejudicially erroneous. United States v Daniels, 11 USCMA 52, 28 CMR 276; United States v Stivers, 12 USCMA 315, 30 CMR 315; Kercheval v United States, 274 US 220, 71 L ed 1009, 47 S Ct 582 (1927).

The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army. A rehearing may be ordered.  