(concurring in the result) :
I concur in the result.
I agree that the cause should be reversed, but do so on the narrow ground that the trial before the court-martial was so lacking in the essentials of military judicial procedure that the rights of this accused were substantially prejudiced. The Court’s opinion goes much further and rationalizes on general prejudice, which appears to me unnecessary in this setting, and contrary to the clear mandate of Congress. It is to reserve from my concurrence an approval of that concept which leads me to file this opinion.
Article of War 37 provides as follows :
“The proceedings of a court-martial shall not be held invalid, nor the findings or sentence disapproved, in any case on the ground of improper admission or rejection of evidence or for any error as to any matter of pleading or procedure unless in the opinion of the reviewing or confirming authority, after an examination of the entire proceedings, it shall appear that the error complained of has injuriously affected' the substantial rights of an accused. . . .”
The test laid down by this provision is simply this: Did the procedure adopted in this case injuriously affect a substantial right of the accused? If so, reversal is required. If not, then the finding and sentence must be affirmed.
The Court’s opinion seems to hold that no specific prejudice resulted to the accused, but because of a belief that to place our stamp of approval on procedural errors would tend to weaken the military judicial system we should reverse. It should be obvious from the quoted Article of War that Congress contemplated errors of law might occur in the trial of a member of the Armed Forces. It should be further obvious that Congress commanded that, even though an appellate tribunal • should find error, a'reversal should not be ordered unless, upon an examination of the entire proceeding, the particular error substantially affected the rights of the accused on trial.
I agree that the law member should not abdicate in favor of the president of the court, and this is more important under the new. Code than it was under the old procedure. The Articles of War contemplated that the law member could consult with members of the court prior to ruling on an interlocutory question and he was permitted to *243vote on the findings and sentence. Un7 der the present practice he is divorced from membership on the court and from his advisory capacity and he more nearly approaches the role of a judge in civilian practice. Accordingly, under the procedure in vogue when this case was tried the interference by the president was less offensive than it would be under the present-day legislation. But, in both instances, the touchstone is prejudice.
In the case at hand I find no difficulty in arriving at the conclusion that the accused was not accorded a fair trial, and that to me is prejudice. At the inception of the hearing and upon completion of the government’s case there was presented an important and rather involved question of law and one which, in my opinion, should have been carefully considered by a person trained in the law. Moreover, during the course of the hearing there were other questions of law and preliminary questions of fact which should have been ruled upon by the law member before submission of the case to the court.
The first question presented was whether there was a multiplicity of charges arising out of a single act. The discussion before the court-martial by counsel for both parties directed attention to the legal principle involved and there was respectable authority, presented in the argument which indicated that a ruling in favor of the accused might be proper. As suggested in the Court’s opinion, .the board of review reversed specification 1 of Charge II because it was incorrect in law, and the only legal issue, involved was the one raised before, but not ruled on by, the law member.
The second important question presented to the law member was whether the confession of the accused was inadmissible because of being involuntary. This involved a mixed question of law and fact and under correct trial procedure presented a preliminary question which should have been decided by him. If his ruling had been adverse to the accused, then the court would have had the opportunity to evaluate the evidence and arrive at its own conclusion. However, if the ruling of the law member had been favorable to the accused the confession would not have been before the court-martial for consideration.
Whether or not the court ruled rightly on these two matters is a question which need not be decided. At least, it is arguable that on the former a ruling in favor of the accused should have been made. But, be that as it may, Congress commanded that an accused have questions of law and preliminary questions of fact decided by a law member who possessed certain qualifications. Here that command was ignored. To say that bypassing the law member is not prejudicial to the man on trial is to say that any reviewer of .trial or trier of fact can be elimi--nated without harm to the individual on trial.
I believe that when Congress authorized preliminary rulings by a legally trained person and that right is refused there is involved a prejudicial denial of a right of substance. It is more than a belief that some overarching principle of general prejudice permeates the atmosphere of the court room. It is the refusal to grant to the accused a fundamental right guaranteed to him by the Articles of War. If we are permitted to reason by analogy with the civilian practice this, to me, smacks of a judge allowing the foreman of a jury to decide questions of law and admissibility of confessions. In the final analysis • there' is involved in these particular rulings a knowledge of the1 law reinforced by judgment and discretion. A law member may, within bounds of reason, disagree with the court and an accused should not be precluded from having the advantage of this area of disagreement.
It is entirely within the bounds of reason to say that had the law member been free to exercise his judgment, uncontrolled by the president, one serious charge would not have been before the court for consideration. Furthermore, it is a fair assumption that had that result been reached the sentence in this *244case would have been reduced accordingly. My concurrence is, therefore, based on my belief that the accused was denied one of the principal safeguards erected to protect him, and that this denial was prejudicial to him.