(concurring in part and dissenting in part):
Two chores lie before us in -this case: (1) the determination of our action on the record, and (2) the consideration of responses to two questions certified to us by The Judge Advocate General, United States Air Force. I fully concur in the major opinion’s performance of the former task — for, although my brothers do not say so, I understand them to have affirmed the conviction of the accused. I also concur in the answer furnished to the first certified question. What I have to say concerning the second reply will appear hereafter.
II
To my mind affirmance or reversal here turns solely on the question of whether any sort of issue of legal insanity was raised by the medical testimony at the trial. In my opinion none was. The most that' can be said on the basis of this evidence is that, because of a recent unhappy experience reflecting on his honesty, the- accused had become emotionally upset — even, for the time, perhaps, antisocial. If I am correct in this, than the law officer would not have erred in disregarding the- initial post-findings medical testimony, qua insanity evidence, and — in the absence of objection — directing the court-martial to proceed immediately to its consideration of an appropriate sentence. Nothing contained in the testimony of the second medical officer either modified or added substantially to the conclusions of the first. It follows, therefore, that what was, in fact, done by the law officer was erroneous only in the very strictest sense — and merely in that it constituted ah inartful procedure, doubtless based on a commendable désire to protect the .interests' of an accused in what was regarded as a doubtful case. Certainly it could not in any wise have prejudiced him.
III
I concur also in the principal opinion’s *589provision of a safe and orderly procedure for use in cases where an issue of legal insanity is raised- — and in its statement of reasons therefor. It will be remembered, of course, that all of us agree that no such issue was raised by the evidence here.
IV
Two certified questions came to us from the service concerned:
“a. Whether the motion for a finding of not guilty made by Defense Counsel after the findings were announced and after testimony as to mental responsibility had been introduced, requires the court to treat the case as one in which a plea of guilty had not been entered, and whether the court would be required in such case to reopen the case, reconsider, and vote again on the findings.
“b. Whether the court, under the circumstances of this case, properly could determine the issue of mental responsibility finally by voting on Defense Counsel’s motion for a finding of not guilty, which motion could be decided adverse to accused by less than two-thirds majority required to convict.” [Emphasis supplied].
In the foregoing quotation of the first question, I have italicized the words, “after testimony as to mental responsibility had been introduced.” I am sure that this language has reference to the testimony as to sanity introduced in this case — and so, apparently, were my brothers. On this assumption, I concur in their negative response to the inquiry — this for the reason that, as a matter of law, I do not believe that the evidence introduced an issue of sanity. Had it done so, I suspect the question would have been answered otherwise. I, at least, would have been inclined to take another view.
For myself, I would prefer not to furnish an answer to the second certified question. None, I believe, is essential to a proper disposition of the case, in view of our reply to the first, and the reasons assigned therefor. Moreover, although I suppose that a negative response is the proper one, I am not entirely sure that I recognize what the inquiry is driving at. The word “finally” and the phrase “under the circumstances of this case” constitute the source of my difficulty. I am certain that an issue of sanity may not lawfully be determined adversely to the accused, and finally, by a vote proportionately less than that required to convict. However, under the circumstances of this case, I am not really sure that this was done. In fact, I am not sure that I know what was done. It will be recalled that the law officer instructed the members of the court-martial, at the time he submitted to them the motion dealing with mental responsibility, that, in addition to taking action- thereon, they might reconsider their earlier findings of guilty. I would prefer a problem which is cleaner-cut before I attempt to supply a solution.
V
I am sure that none of us wishes to be understood as criticizing the law officer in this ease for electing to treat the medical testimony as raising an issue of sanity. Doubtless I would have done so myself under the pressing circumstances of trial — for it was the more cautious course, and one which afforded maximum protection both to the accused and to the record. This is not to say, however, that either he or I would have been required to do so. His only mistake was that, having reached the decision he took, he followed an inappropriate procedure. However, as we have seen, no harm was done.