(concurring):
I concur.
I desire to develop certain procedural deficiencies not stressed in the court’s opinion in the hope that I can point up the necessity of law officers exercising careful discrimination in selecting the appropriate method of disposing of insanity when it is raised during the trial of a case. The law officer’s difficulty in this particular instance was compounded when he confused procedural and instructional requirements.
The record reveals that the second hearing was held because of doubt concerning the sanity of the accused. During the latter trial, a discussion arose as to the procedure to be followed in determining that issue. According to the Manual, there are different times and different ways in which the controversy might be handled, but regardless of the method pursued the procedure should not be so muddled that an accused is denied the right to have the issue considered finally on his guilt or innocence. Insanity may be considered and determined before trial but the first step thereafter to be encountered is whether there should be any inquiry. A request, suggestion or motion that inquiry be had may be made by any member of the court, prosecution or defense. The law officer of a general court-martial should first rule on that question and his ruling is subject to an objection by any member of the court. If an objection is lodged, the court should then determine the desirability of proceeding further. If no objection is made, the ruling becomes final. Assuming an inquiry is ordered, the issue is given precedence, further evidence is obtained, and the issue *518further developed. If there is evidence which causes a reasonable doubt as to accused’s sanity, a motion for a finding of not guilty based on that ground may be made and ruled on by the law officer. Again that ruling is subject to any objection by a court member as the court has the final say on any question concerning the accused’s sanity (Article 51(b), 50 U.S.C. § 626). Regardless of how the matter may be raised, except on final submission for a finding of guilt or innocence, it must be kept in mind that a tie vote decides the issue against an accused and that not to resubmit the question when the court deliberates on the merits denies the accused the privilege of not being convicted except by a two-thirds’ majority. Therefore, even though the court rules on the issue during the intermediate phases of trial, it should nevertheless be told specifically that it may consider the issue along with others in its final deliberations on the guilt or innocence of the accused. Moreover, when it considers insanity at that point in the case, adequate instructions must be given, by the law officer so the issue can be determined by an appropriate measuring rod.
Apparently the law officer concluded that disposition of a question raised by him eliminated any further instructions on final submission. The issue developed thusly. Near the end of the proceedings, trial counsel requested information as to whether the court desired to have any witnesses called or recalled. The law officer answered this inquiry in the following language:
“. . . There has been certain evidence as to the sanity or insanity of the accused, and in Manual for Courts-Martial, page 203, there is a purview. In effect it says:
“ ‘If the court finds the accused not mentally resosible [sic] for his acts it will forthwith enter findings of not guilty as to the proper charges and specifications. If it finds the accused mentally responsible for his acts, but at the time of trial lacking requisite mental capacity, it will record such findings.’
“In which event, the convening authority might appoint a board of officers to go into the sanity or insanity of the accused. Those witnesses would be made to testify at that time. Is it the desire of the court to have any further evidence on that point?
“President : The court does not desire any witnesses recalled.
“Law Officer: On the point of sanity or insanity?
“President: It does not.”
This explanation merely outlined the procedure to be followed and was given to assist the court in determining whether it desired to hear additional evidence. It had no relationship to the instructions which must be given by the law officer at the conclusion of the case nor did it include any of the necessary information to guide the court-martial on its deliberation on the merits of the cause. It is one thing to inform the court-martial members what to do if they find the accused sane, but quite another to inform them how to measure legal insanity. Even though the court might have decided not to hear additional witnesses there was sufficient evidence to raise insanity as an issue. Therefore, the court should have been told to consider that evidence, together with other evidence, when deliberating on accused’s guilt or innocence and should have been given the instructional guideposts necessary to help it arrive at a proper solution. In considering its findings on guilt or innocence, a standard different than the one used to find on an interlocutory question should be applied. The burden of proof may not be so important on an interlocutory question but if the court, when deliberating on the ultimate finding of guilt, entertained any reasonable doubt that the accused was mentally responsible, it should find him not guilty. It is of considerable importance to the accused that the court be instructed carefully on the standards to be used in determining his guilt as it may be affected by the questions of insanity and who must shoulder the burden of proof. The law officer failed in both regards because he never clearly understood the correct method to be followed in disposing of the issue.