Opinion of the Court
A divided board of review reversed the accused’s conviction of a number of acts of sexual misconduct with his eleven-year-old stepdaughter. The Judge Advocate General of the Navy certified the record of trial to this Court for review on the following issue:
“Whether the Board of Review was correct in holding that the law officer erred to the prejudice of the accused in his questioning of the accused and of the victim’s mother.”
To prove the charges, the prosecution called the accused’s stepdaughter as its only witness. After a preliminary hearing to establish the child’s competency, she testified to the circumstances of the offenses. She described the accused’s acts in a direct and explicit manner. On cross-examination, defense counsel developed several discrepancies between her trial testimony and her testimony at the pretrial investigation in regard to the place and specific date of one of the acts. The witness explained that immediately after the pretrial investigation she told the investigator in the case she “had made a mistake” as to the place. She indicated further that the mistake resulted from the fact that she was “scared” of the accused. Defense counsel also elicited testimony to the effect that she did not tell anyone about the incidents until about a “week or so” after the last act. At that time, she revealed them to her mother because she was “real mad” at the accused. The child also testified that she had remained silent previously because the accused had told her “not to tell.” She acknowledged that she did not have a “happy home life.” She did not “exactly hate” the accused, but she “used to help . . . [her] mother a lot” in the frequent fights the mother had with the accused.
The accused was the only witness for the defense. He unqualifiedly denied the charges. In the course of his examination, he said he had been married to the complainant’s mother for four years. His marital life was “sort of up and down,” with the “majority” of it being bad. He fought frequently with his wife and estimated that she had left him twelve times. He reviewed the details of some of his quarrels, separations, and reconciliations. He said that his stepdaughter was present on occasions of “physical violence” between his spouse and himself. His cross-examination by trial counsel was concerned primarily with his relations with his wife. He admitted that in one of the quarrels he pushed her so that she fell against a “steel door-jam” and as a result suffered a cut on her head which required thirty-seven stitches.
At the conclusion of the accused’s cross-examination and after both trial and defense counsel indicated they had no further questions, the law officer examined the accused. This examination is set out below:
“Law OFFICER: Bishop, before you leave, you have heard Donna tell her story and your story is diametrically opposed to that?
“A. Yes sir.
“Law OFFICER: Also in your testimony, you have indicated some solicitude for the child. Specifically, one time you got some food for her and you went in to make sure she was covered. Those two occasions, anyway.
“A. On the occasion that I checked to see if she were covered, I was recalled from Midway.
“Law Officer: I am not concerned with why you did it, but you did indicate some solicitude for the welfare of the child?
“A. I don’t quite follow that word, sir.
“Q. You were interested in getting *120her something to eat and on one occasion you made sure that she was covered in bed?
“A. Yes sir, there have been numerous instances on that.
“Law OFFICER: Have you ever had occasion to discipline that child?
“A. Well sir, more or less I guess, but most of my discipline was when we would sit down at the table I used to tell her to sit down and eat and not to sit down and chatter.
“LAW OFFICER: Did you ever strike the child?
“A. Yes sir, I spanked her twice. Once upon returning from Japan in 1955, and once at Alameda I give [sic] her a couple of swats with my hand.
“Law Officer: Could you give any reason she would make such allegations against you? This is some indication that she was not antagonistic toward you.
“A. I don’t know sir, unless it is her mother put her up to it, sir.”
When the law officer finished, trial counsel asked the usual questions as to whether the court desired to have any witnesses called or recalled. See Manual for Courts-Martial, United States, 1951, appendix 8a, page 517. The president of the court said that he “would like to have the mother called as a witness.” He indicated he had no specific questions to ask her “at this point,” but he was interested in knowing whether she “put the child up to this.” The court recessed for the members to “discuss” whether to call the mother. Some minutes later court reconvened and the president gave the law officer a list of questions “to be asked of the mother.” Mrs. Bishop was then called as a witness for the court and was interrogated by the law officer. Her direct examination and redirect examination cover just over five pages of the record. Summarized generally, the testimony is as follows: When the mother was alone with the child on December 10, the child disclosed to her certain acts committed by the accused on four occasions; she was “stunned and shocked”; she called the doctor and on his directions, she brought the youngster to him; later she returned to the house to collect her clothes and that was “the last” she knew “of it.” She said further she had been married to the defendant for four years. The relationship was not “normal” because the accused was “awfully jealous” of her, particularly when she was working and making more money than he. The accused also beat her “quite a bit.” Their relationship-“changed” between November 29, 1958, the date of the last offense and December 10th the date of disclosure by the-daughter. She had the accused “brought” home on emergency leave because she thought her daughter had polio. When the accused arrived he did not “check,” but “just [went] home and got drunk.” Two questions and answers merit quotation:
“Law Officer: Has little Donna ever seemed fanciful or flighty? Is she careless with the truth? Has she ever shown a desire to hide behind certain facets of a story for possible reasons of protecting herself?
“A. Not that I know of.
“Law Officer: In other words, what you are saying is that she is, as far as you know, a perfectly normal little child and you were surprised when she related what she did.
“A. Yes sir.”
It is, of course, well-settled that the law officer is not a mere umpire in the contest between the Government and the accused. He can go beyond ruling on the admissibility of disputed items of evidence and ask questions to„ clear up uncertainties in the evidence or to develop further the facts for the better understanding of the court members. Consequently, the mere asking of questions by the law officer is not error. However, the law officer cannot lay aside impartiality, and become an advocate for one side or the other. If he does so, he commits reversible error. Applying these general rules to the facts of this case, the board of review concluded that the nature and the manner of the inquiry conducted by the law officer show at least an “apparent departure” from impartiality to advocacy on the part of the Government. It based its conclusion on four grounds:
*1211. The law officer invited examination of the accused as to why the sole witness for the prosecution might not •be telling the truth.
2. The law officer’s “obvious attempts” to support the child’s credibility by the testimony of her mother.
3. That in the course of his examination of Mrs. Bishop, the law officer arbitrarily disregarded proper objections interposed by defense counsel.
4. That the law officer made “appar•ent” efforts to “allay the inherent possibility of doubt in the minds of the -court which was suggested by their expressed question as to whether or not the alleged victim’s mother may have influenced her child’s testimony.” In this regard, said the board of review, he elicited far more from her than a simple denial that she “put the child mp” to testifying as she did, which was all that the court-martial was inter•ested in.
We consider each of the reasons assigned by the board of review in turn.
1. The invited question on the reason for the child’s testimony. The fact that the question was “invited” means nothing. We have already pointed out that the law officer can ask questions on his own initiative. That leaves us with the content of the question. Does it reflect partisanship? A case can be made for the conclusion that the question is one more likely to be asked by the prosecuting attorney than defense counsel because the answer might tend to limit the court-martial to consideration of the reasons advanced by the accused. Consequently, if they reject those reasons they might not look for -other reasons raised by the evidence. But, there is more to the question than its suitability for defense or prosecution. In the light of the evidence it was an entirely logical question to ask. The child testified one way; the accused another. The accused said he cared for the child; she indicated she did not like the accused, but she did not “exactly hate” him. What reason, then, could she have for testifying as she did? That is a natural question. The record shows that defense counsel himself felt its impact. As appears from the excerpt set out below, he himself put the same question to the accused in his direct examination, immediately after the accused denied he had committed the acts charged.
“Q [Defense Counsel]. Can you explain to this court why then, you think that Donna has fabricated this story ?
“Trial Counsel: Objection.
“Law Officer: Sustained.”
Trial counsel objected to the question and the objection was sustained. No reasons were assigned in the objection and none were given in the ruling, but it is entirely possible the law officer disallowed the question because the form assumed that the child’s testimony was “fabricated.” We need not explore the correctness of the ruling. The significant fact is that the defense itself thought it appropriate, even desirable, to obtain a statement from the accused as to why the child may have told an untrue story. Under the circumstances, we cannot find in the question the slightest hint of an attitude other than an interest in the facts. We find no support whatever for the claim of partial conduct by the law officer.
2. Obvious attempts to support the child’s credibility by the testimony of the mother. We are not certain whether the board of review intended here to imply that partisanship can be inferred because the law officer induced the court-martial to call the mother as a witness.1 If this is the intention, it is *122very wide of the mark. The question alone does not show any design to have the mother as a witness; it asks only if the accused could offer a reason for deception by the child. The accused’s answer provides the first inkling that the mother might be able to testify to more than the fact of disclosure by the child of the accused’s acts. There is no intimation whatever of any intention by the law officer that the mother be called to support the child’s testimony. Hence, the validity of this reason for the conclusion of the board of review must be considered from the standpoint of the content of the questions asked the mother. This, we consider, in the discussion of the fourth reason.
3. Arbitrary overruling of objections. During the law officer’s examination of Mrs. Bishop, defense counsel interposed three objections. The board of review described the law officer’s actions on the objections as “arbitrary.” Since there is no determination of the merits of the objections, we suppose the characterization is intended to show partisanship on the part of the law officer. Again the record just does not support the conclusion. All three objections follow:
“Law Officer: Mrs. Bishop, will you describe the precise circumstances which obtained when you first learned of your daughter’s allegations which are the substance of this trial?
“A. She came home from school. All I can remember is that the day was the tenth. She saw that I was home. I got off early because I was not feeling well. She told me—
“Defense Counsel: I object to what the daughter might have told her mother on the grounds of hearsay.
“Law OFFICER: Mrs. Bishop, just tell exactly what happened. You said that you had a conversation with her?
“A. All she told me was, ‘Promise me not to tell Joe, or I will get in trouble’. Then she told me—
“Defense Counsel: Same objection.
“Law Officer: You had a conversation and you were alone, is that correct ?
“A. Yes sir. I am just telling you what she told me and that is the only thing I can say.
“Law OFFICER: You have stated that your daughter told you a certain story and you were surprised and shocked ?
“A. Yes sir.
“Law Officer: Did that story reference four incidents or one incident?
“A. Four.
“Defense Counsel: I object.
“Law Officer: Overruled. The day that she first told you about the incident her story referenced four instances ?
“A. Yes sir.”
Although the law officer made no specific rulings on the first two objections, it is unmistakably clear he agreed with them and attempted to keep the witness from reciting the details of her conversation with her daughter. In other words, he tried to confine the witness to the fact that she had a conversation with her daughter and to get her to describe the circumstances under which the conversation took place. We see nothing arbitrary or capricious or partisan in this action.
*123 *122The ground of defense counsel’s third objection is not stated but probably it was predicated upon the same broad ground of hearsay. The objection was overruled without a statement of reasons. It is perhaps arguable that *123the ruling is incorrect because it improperly includes details of the complaint (Manual for Courts-Martial, supra, paragraph 142c, page 256), but that is another matter and one which must be considered with the fact that the whole subject of disclosure was opened by defense counsel in his cross-examination of the child. The reason under discussion is concerned with the arbitrariness of the ruling, not its content. We, therefore, reserve it for later discussion and consider now only the issue of arbitrariness. It is, of course, well-settled that the law officer is not required to give reasons in support of a ruling. Failure or refusal to provide an explanation for a ruling cannot therefore be regarded as an indication of arbitrary or capricious action. United States v Brown, 10 USCMA 482, 28 CMR 48.
4. Content of the law officer’s examination of Mrs. Bishop. Earlier, we set out the scope of the ex-animation and quoted representative questions asked by the law officer. Coneededly, there is in both instances a departure from approved standards of practice. For example, the question on whether the child ever seemed “fanciful or flighty” is far from a model question. But we are not dealing with inapt or even inept questioning. Our task is to scrutinize the examination to determine whether it justifies the board of review’s conclusion that it stamps the law officer as an advocate for the Government.
To begin with, the board of review apparently overlooked the significant fact that the court members gave the law officer a list of questions and that at the conclusion of his examination the law officer specifically asked if “that [was] the extent of the court’s questions.” The president asked the court members if they had any further questions. He also made the following statement to them.
“. . . Any questions you have written and he has not asked will be presumed to be objectionable and will not be asked.”
No further questions were asked. It seems to us, therefore, that the scope of the examination was not determined by the law officer contrary to the desires of the court-martial. Rather, it was obviously in direct accord with their requests. They, not he, wanted to elicit from Mrs. Bishop “far more” than a simple denial that she influenced the child to testify against the accused. Thus, the record is plainly contrary to the board of review’s conclusion on this point.
Turning to the questions themselves, it is indeed regrettable that the court-martial’s list of questions was not made an appellate exhibit. It is also regrettable that the record does not reflect whether the list was shown to defense counsel so that he could know and prepare himself to satisfy the doubts or desires of the court. Be that as it may, it is obvious on reading that almost the whole of the examination pertains to the marital disagreements between the witness and the accused. This was old stuff. The accused himself disclosed more details of those disagreements than did Mrs. Bishop. The reiteration, however, clearly served another permissible purpose, namely, to disclose Mrs. Bishop’s attitude toward her marriage and toward the accused. It is plain that the court members, acting through the law officer, wanted to find out if, as indicated by the accused, her views were such that she might reasonably be expected to induce her daughter to testify falsely.
Most of the remaining questions dealt with the circumstances under which the child revealed the defendant’s acts to her mother. Inquiry into this subject was the logical outcome of the accused’s contention that the mother “put the child up” to presenting false allegations against him. If the circumstances were natural and innocent they would tend to give weight to the child’s testimony. The scope of the examination was therefore both reasonable and permissible. Finally, there are the questions about the child’s personality. Here again they are the natural and logical outcome of the accused’s contention. What kind of person is the child? Is she given to fancy or imagination? If she is, it might reasonably be inferred that she *124was fantasizing in her testimony. If there is no background for such conduct it might reasonably indicate she was telling the truth. The form of the questions was certainly poor, but their substance and their purpose were entirely proper. In that connection, it is worth noting that defense counsel, who earlier made clear that he did not fear objecting to questions by the law officer, interposed no objection to these questions. The failure to object does not mean the questions were proper, but it was the form not the substance that was objectionable. Improper form “does not by any means show that the law officer became a partisan advocate.” United States v Weaver, 9 USCMA 13, 20, 25 CMR 275.
We find no justification for the board of review’s “serious misgivings” as to the law officer’s impartiality. In that regard we agree with dissenting Member Hunsecker that “neither bias nor hostility” appears in the record of trial. We conclude the record does not support the holding of the board of review that the law officer abandoned impartiality to assume the role of a partisan advocate. We answer the certified question in the negative.
A number of other assignments of error were presented to the board of review when the case was before it. Some were considered; others were not. Our opinion here, of course, does not prevent the board of review from considering the latter matters on remand. The record of trial is returned to The Judge Advocate General for resubmission to the board of review for further proceedings consistent with this opinion.
Judge LatimeR concurs.
