(concurring in the result)
I concur in the result. I do not concur outright because I have certain reservations concerning some of the concepts developed in the Court’s opinion and, therefore, prefer to base my reversal on different grounds.
Article of War 24, 10 U.S.C. § 1495, insofar as is important to my concurrence, provides as follows:
“The use of coercion or unlawful influence in any manner whatsoever by any person to obtain any state*409ment, admission or confession from any accused person or witness', shall be deemed to be conduct to the prejudice of good order and military discipline, and no such statement, admission, or confession shall be received in evidence by any court-martial. It shall be the duty of any person in obtaining any statement from an accused to advise him that he does not have to make any statement at all regarding the offense of which he is accused or being investigated, and that any statement by the accused may be used as evidence against him in a trial by court-martial.”
This, is explained and amplified by paragraph 127, Manual for Courts-Martial, U. S. Army, 1949, which is as follows:
“. . . It is the duty of any person in obtaining a statement from an accused to advise him that he does not have to make any statement at all regarding the offense of which he is accused or being investigated, and that any statement by the accused may be used as evidence against him in a trial by court-martial. (A.W. 24).
“A confession or admission may not be received in evidence if it was not voluntarily made. If the confession or admission was obtained from the accused in the course of an investigation, by informal interrogation or by any similar means, it may not be received in evidence unless it appears that the accused, through preliminary warning or otherwise, was aware of his right not to make any statement regarding an offense of which he was accused or concerning which he was being interrogated and understood that any statement made by him might be used as evidence against him in a trial by court-martial . . .”
[Italics supplied.]
The record is crystal clear that the provisions of both the Article of War and the paragraph from the Manual, hereinabove quoted, were violated in that the statement made by the accused was admitted in evidence over his objection when prior to giving it he had not been properly warned of his right to remain silent and had not been advised that anything he was to say might be used against him as evidence in the trial by a court-martial. Rather than showing that the accused was informed that the evidence might be used, the record affirmatively shows that he was informed his testimony was confidential and that anything he said was between the investigating officer and himself. Accordingly, the ruling of the law member in admitting the statement in evidence was error as a matter of law. This, then, poses the question of whether the error was prejudicial.
In testing this it is necessary to refer to the substance of the testimony given before the investigating officer. The statement admitted in evidence consists of questions and answers and extends beyond a confession of the crime. In the first part of the questioning the accused denied having access to the examination sheets. He denied having any help and claimed his answers were based on his personal knowledge of the subject. After some 83 questions and answers he reversed himself, admitted he had falsified, and declared he wanted to tell the truth. He thereupon stated facts showing that he had cheated in the examination. The questions and answers, however, went further as the investigating officer developed misconduct as it might be measured by both cheating and giving false testimony.
One fundamental difference between civilian practice and military practice which is of importance in this instance is that in the former the jury does not ordinarily sentence the defendant, while in the military system the members of the court-martial do. In testing prejudice in military tribunals consideration must be given to the probable impact on the minds of the members of the court both as to the findings and the sentence; and if the error itself substantially influenced the court, or if there is grave doubt as to its prejudicial effect, the findings and sentence should not be permitted to stand.
Another consideration in determining prejudice to the accused is the reasonable probability of the court returning a verdict of guilty of a lesser included offense. The charge and specification *410herein involved alleged an offense in violation of Article of War 95, 10 U.S.C. § 1567. The gravamen of the offense is conduct unbecoming an officer and a gentleman. However, there has been a practice in the military which permits the finding by exception and substitution of a lesser included offense under Article of War 96, 10 U.S.C. § 1568. In addition to this practice, the Manual for Courts-Martial, U. S. Army, 1949, specifically provided for such a procedure. Paragraph 78b, page 76, of that Manual states as follows:
“. . . For example, in the case of an officer charged with a violation of Article 95 the court may not find him guilty of a violation of Article 96 in order to adjudge confinement, although, if the circumstances warrant, the court may properly find the accused guilty of a violation of Article 96 in such a'case and adjudge dismissal or a lesser sentence. . .
Keeping in mind the considerations mentioned, there are at least three ways in which I believe the inadmissible evidence prejudiced the accused: (1) This was a circumstantial evidence case and the confession removed all reasonable hypotheses of innocence. It clinched the case for the Government. (2) The accused presented evidence of good character, but this was damaged or destroyed by his own testimony that he had falsified willfully under oath. (3) The possibility of the court reducing the offense by exception and substitution was lessened by the showing of perjury and the suggestions that such reprehensible conduct was unbecoming an officer and destructive of his value to the service. Particularly might this be influential when, as here, the president, of the court immediately after imposing the sentence stated 'to the accused, “I would like further to inform you, however, that the court feels that your case merits a letter of clemency.” If the members of.the court were considerate of the accused I believe it reasonably probable that had the written statement not been before them they might have been inclined to reduce the offense as permitted by the Manual.
What I have previously stated applies with equal force to the sentence. Under the old procedure a lesser sentence might be imposed in a conviction of Article of War 96, supra, and under our holding in this case and in view of the applicability of the new Code, a sentence of dismissal from the service was not mandatory. It should be apparent that if an accused is cast in an unfavorable light by his own incriminating evidence of another offense, there is a reasonable probability that the nature, length and duration of the sentence will be substantially affected.
In view of the fact that the case is being reversed and may be retried, I point out another probable error which I think should not be repeated. One of the principal issues before the court-martial was as to whether or not the statement given by the accused was voluntary. The evidence touching on this matter was heard outside the'presence of members of the court. The law member ruled in favor of the Government and held the confession was voluntary. However, when the court reconvened little, if any, evidence was introduced on this issue. Even after inquiry by a member of the court the evidence was not made available. The law member, in accordance with appropriate practice, instructed the court-martial that his holding on the admissibility of the document was not final, and that each member of the court could determine whether the statement was given under conditions rendering it involuntary. The instruction was apt, but was futile in view of the fact that there was no evidence on which the court could intelligently act. I would, therefore, suggest that when similar issues are tried and testimony is taken out of the hearing of the court that the evidence be brought before the court in some acceptable manner unless the accused specifically objects to its presentation.
For .the foregoing reasons and . because of the holding in United States v. Downard (No 226), 1 USCMA 346, 3 CMR 80, decided April 28, 1952, I concur in the holding that the case should be reversed and the matter returned to The Judge Advocate General for further action.