(concurring):
I concur.
While I concur with the Chief Judge’s opinion, I prefer to develop more fully the subject which divides the Court. There are two reasons why I believe that issue should be decided adversely to the accused. In the first place, I do not believe the law officer erred in listening to the trial counsel read from the various authorities. Second, assuming he did err, the error did not substantially prejudice the accused.
It is conceded that paragraph 44g of the Manual for Courts-Martial, United States, 1951, authorizes the procedure adopted by the trial counsel. Whether we like the system or not is of no particular importance in view of the fact that we are powerless to change the procedure authorized by the Manual unless we can find it in some manner violates the provisions of the Code or that it is so basically unsound as to deny the accused a fair trial. This particular privilege cannot be denied for either reason., It is not contrary *531to the Code, and it can be of distinct advantage to an accused. In this connection we must bear in mind peculiarities of the military judicial system. The provisions of the Code, in certain instances, superimpose the court-martial over the law officer and permit it to overturn his rulings on certain matters of law. This may be done on an issue of insanity or when a motion to dismiss is interposed by an accused. In the latter instance the court-martial members may decide a question of law, namely, whether the evidence is sufficient or insufficient, as a matter of law, to sustain a finding of guilt. It would appear to me to be grafting an unnecessary limitation on the Code and the Manual to permit trial or defense counsel to argue matters of law to the law officer and to the court and yet deny them the privilege of quoting from legal authorities.
Civilian authorities would not hold it error for a judge to listen to arguments for or against a legal proposition, merely because the lawyers did not confine themselves to strict and correct interpretations of the law. Furthermore, I believe in those jurisdictions where a jury is permitted to make certain legal determinations, the same principle would apply. Certainly it would appear a difficult task for a court-martial to determine whether a motion to dismiss a ease should or should not have been granted by the law officer unless it were permitted to hear arguments on the law.
There was no motion pending before the court at the time trial counsel presented the authorities. He is privileged to anticipate the possibilities of one being interposed and to present his arguments before trial starts. In addition, he may have been seeking to enlighten the court and the law officer on his theory of the case and the legal principles which he contended would support his view of the law. Assume he quoted the authorities which were irrelevant or were legally incorrect, it is not error for the law officer to listen. Furthermore, I do not believe it is error for the members of the court-martial to do likewise. It is extremely difficult to tell what law is relevant until the facts have been unfolded and the court might be called upon to determine their sufficiency. In all events, I had always supposed that error arose, not from listening to improper or irrelevant authorities but in relying and acting upon them. As I understand the law and our decisions, the law officer is the one who stamps the law of the case with authenticity. He and he alone lays down the law to be followed. If, perchance, the authorities cited by counsel are contrary to the law as announced by the law officer, the latter governs.
A slightly stronger argument presents itself against the procedure if the case has been finished and counsel are arguing on a finding of guilt. When a case has reached that point, the court members • are no longer interested in questions of law, other than those to be announced by the law officer, and principally to avoid cluttering the minds of members of the court with matters of no relevancy, it might be advisable to curtail citations. However, it must be remembered that the law officer instructs the court-martial after arguments of counsel and they must anticipate his definition of the crime, the instructions he will give and the law he will announce. Until that is done the best source from which this information might be obtained is from the Manual and decided cases. If at this time arguments are permitted to include reading of excerpts from cases, counsel for the opposing side, the law officer, or both, should be more alert' to make certain that the authorities are not in conflict with the law as it is to be given.
Assuming for the purposes of my second reason for supporting the holding that the law officer erred in permitting trial counsel to read from the authorities, I find no prejudice. These authorities were read at the commencement of trial on October 8, 1951; they were fairly lengthy, detailed and covered such subjects as a complete discussion of murder taken from the Manual- for Courts-Martial, United States, 1951; excusable homicide and premeditation, from the sanie authority; malice, from a board of review *532decision; presumption of malice from Winthrop’s Military Law and Precedents, Second Edition, 1920 Reprint; accidental shooting; a killing of one while intending to kill another; aiders and abettors; and, circumstantial evidence. It was not until some four days later that the law officer gave his instructions to the court. It is conceded these were adequate and correct. Such being the case, I adopt the concept that the court-martial followed the instructions given by the law officer and not the lengthy quotations read by trial counsel. Assume trial counsel read the law correctly, and the law officer misinformed the court, I dare to suggest we would not hesitate to reverse because of a belief in that concept. Conversely, when trial counsel misadvises the court and the law officer instructs, legally and properly, we should not hesitate to affirm on the same theory. In addition, I believe we should face the individual facts in this case. Assuming the members of this court-martial were mental giants, they could not have retained in their minds the laws read to them by the trial counsel over the four-day intervening period. Accordingly, when the law officer correctly advised them immediately preceding their deliberation on a verdict, it is difficult for me to believe they remembered the difficult and forgot the simple. Moreover,, to do so would require me to believe that the court went back of the instructions given by the law officer to adopt those given by trial counsel. That is a hazardous and unnecessary assumption to make, absent any showing in the record.