(concurring):
I concur in the views of the author of the principal opinion. Each of my brothers has construed Article 31 (6) to apply only if -an element of officiality attaches to the interrogation of a person accused or suspected of a crime. In doing this, each — because of the purpose revealed in the legislative background of Article 31(6) — has chosen to read into that enactment something not clearly visible in its verbiage. Nowhere do I find an express statement in the Uniform Code that Article 31(6) deals only, with persons subject to the Code who are engaged in an official investigation. Yet I have no sort of quarrel with the practice of examining legislative history to ascertain the purpose of Congress in enacting a statute. Nor is such a procedure alien to recognized! canons of statutory construction.1
Once having committed myself to the notion of interpreting Article 31(6) in this manner, I am eom- pelled to accept the result offered by the Chief Judge —since I am convinced that Congress-, was concerned principally with the possibility of implied coercion due to military discipline and superiority, rather than with suppressing the use of statements obtained through triek-*754ery. Judge Latimer’s view appears to be that, while officiality must exist to justify an invocation of Article 31(6), it will suffice if the questioner alone is aware of this officiality. Judge Quinn, on the other hand, and contemplating an “implied coercion” criterion, would require in addition that the person questioned have reason to be aware of the official character of the interview. In no way is this approach a legal anomaly. For instance, who would conceive that the accused here might successfully be prosecuted under Article 107, 50 USC § 701, for having made a false official statement, had he intentionally deceived his fellow-prisoner, Ferguson — this even though the latter, unknown to the accused, had been in reality an official full-time agent of the Criminal Investigation Division at the time of the interrogation? Similarly, Judge Quinn reasons that the goal of Article 31(6) in no wise demands warning, if there be no rational possibility that an accused or suspect would harbor a belief that the inquirer was engaged in some type of official investigation.
II
In the Federal criminal procedure of the civilian scene it is not normally required that, prior to interrogation, even an accused be warned of his right to remain silent, or that he be informed of the charge against him. In those instances in which warning has been required, or adverted to, the focus of attention has always been on possible “compulsion” arising from circumstances. See, e.g., United States v. Kallas, 272 Fed 742 (CA 9th Cir). The Supreme Court has also dealt with the presence or absence of warning to an accused as amounting to no more than a factor in determining the validity of a claim that a confession had been coerced. See, e.g., Turner v. Commonwealth of Pennsylvania, 338 US 62; Harris v. South Carolina, 338 US 68, 93 L ed 1815, 1816, 69 S Ct 1354, 1357. The Federal Rules of Criminal Procedure demand that an arrested person be taken without unnecessary delay before the nearest available United States Commissioner, who is required to advise the accused of his right to retain counsel, and to remain silent. In addition, the Commissioner must inform him of the nature of the complaint, and should indicate that any statement made may be used against him. Federal Rules of Criminal Procedure, Rule 5. Yet the clear objective of this Rule seems to be an avoidance of intangible coercion resulting from arrest and confinement, as well as the discouragement of “third degree” tactics. See McNabb v. United States, 318 US 332, 87 L ed 819, 63 S Ct 608. Thus, statements obtained by Federal law enforcement officers, although secured without a prior warning to the accused of his rights, are admissible, if there has been no unnecessary delay in bringing about the hearing before a Commissioner. United States v. Mitchell, 322 US 65, 88 L ed 1140, 64 S Ct 896; Symons v. United States, 178 F2d 615 (CA9th Cir); Mergner v. United States, 147 F2d 572 (CA DC Cir). It may be reasonably inferred that Congress did not consider a warning to be a sine qua non, but rather a precautionary measure introduced for the purpose of counteracting the presence of confinement, or other circumstances, which might operate to deprive an accused of his free election to speak or to remain silent.
In England, Judges’ Rule No. 3 prescribes that a “caution” be given a suspect. Yet the trial judge retains much discretion, and his reception of a statement, secured without warning, will not constitute ground for reversal, unless the record reveals that the statement was involuntary, in origin. Rex v. Straffer, 2 QB 911; Rex v. May, 36 Cr App R 91; Rex v. Voisin, 13 Cr App R 89; Rex v. Wattam, 36 Cr App R 72. From this I conclude that the English courts also associate the need for warning with the objective of securing volun-tariness, and that they would not deem a warning necessary if, as in the instant case, there is no slightest likelihood of involuntariness.
Texas is the only American state which requires that a warning be afforded a person under arrest before any statement- is taken. Clearly this measure seems directed to the coercive pressures inherent in arrest. Moreover, in Texas it is held that a statement is *755admissible if therein are contained representations of fact and circumstances which have been verified and conduce to establish guilt. Silver v. State, 110 Tex Cr R 512, 8 SW 2d 144. Such events as the finding of secreted or stolen property, referred to in a confession, are deemed to evince its trustworthiness, and, in accord with a Texas statutory principle, to permit the confession’s reception in evidence. Wade v. State, 93 Tex Cr R 364, 248 SW 382. If, as under the Texas view, the trustworthiness of the confession is the only matter for consideration, there is little reason to exclude from evidence the accused’s statement in the case before us now — for no slightest inkling of involuntariness clouds its credit.
Ill
For some time, it has been recognized that in the military system there exist certain pressures of au- thority and rank which conceivably may deprive an individual of his mental freedom to choose between speaking and remaining silent. See, e.'g., Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 329. Accordingly, it was stated that:
“Considering the relation that exists between officers and enlisted men and between an investigating officer and a person whose conduct is being investigated, it devolves upon an investigating officer, ■ or other military superior, to warn the person investigated that he need not answer any question that might tend to incriminate him.” [Manual for Courts-Martial, U.S. Army, 1921, paragraph 22j. Cf. Manual for Courts-Martial, U.S. Army, 1928, paragraph 114; Manual for Courts-Martial, U. S. Army, 1917, paragraph 225.]
A glance at the legislative history of the warning requirement, first enacted by Congress in 1949 as a part of Article of War 24, reveals that Congressional concern, too, had to do with the possibly subtle effects of military position and habits of obedience in inducing an accused to respond to questions relating to an alleged offense. See Congressional Record, Yol 94, part 1, 80th Congress, 2d Session, January 14, 1948, pages 184-5. Accordingly, Article of War 24 was not construed to apply in instances where an incriminating statement amounted to no more than a response to a casual question — for the reason that the spontaneity of the statement prevented it from being “obtained” within the meaning of the language of that Article. United States v. Sonnenschein, 4 CMR (AF) 778. Cf. United States v. Hoover, 3 BR-JC 39.
The necessity for regarding Article 31(6) as having been, designed to provide a counteragent for possible intangible “presumptive coercion,” implicit in military rank and discipline, is suggested by the background in which it was framed. Cf. United States v. Franklin, 8 CMR 513. Moreover, that it should be limited to that purpose is a conclusion compelled by the dangers latent in the approach proposed by Judge Latimer. In the first place, this interpretation will inescapably deny admissibility to statements obtained by investigative agents who are “planted” in criminal locales in the hope that they may obtain information concerning suspected offenses. Any question put by such an agent would necessarily require a prefatory warning in order to insure compliance with Article 31(6) — a warning which, in some instances, might prove fatal to the person expressing it. An informer’s disclosures would likewise be inadmissible in trials by court-martial if those disclosures were secured through the direction of inquiries to persons suspected of offenses. In instances of continuing conspiracy for illicit purposes, such as drug-peddling or theft of Government property, it would seem that informers, or other persons utilized as decoys, would be unable to elicit disclosures of in-culpatory information, of even the utmost voluntariness, without prior warning.
Since the term “statement” in Article 31 embraces not only words but also conduct which has incriminatory significance, the ramifications of Judge Lati-mer’s interpretation are even broader. *756This unfortunate construction apparently envisages that Government agents must, in effect, identify themselves as such before obtaining any sort of incriminatory admission from a suspect— with the result that, to be admissible in evidence, an inculpatory statement can only proceed from a conscious and knowing determination on the part of the suspect to “tell all” and to “pay his debt to society.” Accordingly, many ruses would lose their utility. For example, a decoy letter is designed normally to discover incriminatory conduct on the part of some one of a group of suspects, and thus' might well be included within Judge Latimer’s apparent construction of “requesting” a statement. Consequently, I am afraid that under the logic of his view information secured by the decoy letter would be inadmissible unless on the envelope were printed an Article 31 warning together with a statement of the nature of the crime the decoy was being used to detect. Indeed, a curious dichotomy in result would appear to exist as to intentional misrepresentations of fact by a Government agent, following identification as such, on the one hand, and, on the other, statements obtained through concealment of the status of the questioner as one officially connected with a law enforcement agency. Certainly the former sort of “trickery” does not usually affect admissibility.2
Probably the most noxious result of all under Judge Latimer’s interpretation is that, as I read Article 98 of the Code, 50 USC § 692, informers, “plants,” or investigators who use' decoys of various types, might well be subjecting themselves to trial by court-mai’tial. In consequence, and somewhat anomalously, criminals would often be running free, while investigators who, in pursuit of the former, utilized tactics recognized and approved in every civil-' ian jurisdiction might be facing confinement. Moreover, under this construction of Article 31, a “stool pigeon,” if kept in ignorance by an investigative agency of the purpose for which he is being used, may testify at will, whereas a “planted” Government agent may not —and might find himself facing punishment as a law violator. I cannot at all1 comprehend why the latter measure of detection should have been deemed more reprehensible by Congress — -if, as I doubt,' either measure was so viewed. Nor can I understand why a premium should be placed on the use of innuendo, doubletalk, and concealment of purpose, in dealing with informers, when from an accused’s standpoint, the effects of both practices mentioned above are identical.
IV
Only slightly less incongruous, is the contrast between the result reached by Judge Latimer and the view taken by other jurists. By way of example, Judge Learned Hand was recently required to pass on the claim of eleven convicted Communists that the use of testimony by Government “plants,” and Federal Bureau of Investigation agents, was improper. Not even the Communists appear to have contended that the agents were themselves subject to criminal liability! The opinion of the United States Court of Appeals for the Second Circuit contained the following language:
“. . . Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly. Entrapment excluded, of which there was none here, decoys and other deception are always permissible.” [United States v. Dennis, 183 F2d 201, 224, aff’d, 341 US 494.]
In addition, one of the most recent wire-tapping cases from the Federal judicial system reveals a construction of the Communications Act which certainly and properly facilitates the work of informers and covert Government agents. United States v. Sullivan, 116 F Supp 480. Federal cases, and of *757course innumerable state decisions, sanction warmly the use oí decoys and informers in a galaxy of investigative situations — for instance, those involving detection of postal frauds, narcotics offenses, bootlegging, white slavery, and subversives. In no wise atypical is the statement: “It has been long established that the use of decoys and informers is legitimate.” Price v. United States, 56 F2d 185 (CA 7th Cir). Indeed, Holy Writ serves me here,' for Moses, I believe, made use of secret agents before the entry of the Children into Canaan — and quite without reported criticism from any source. Numbers 18:2.
Certainly the types of crime which have required the use of decoys, informers, and “plants” in the civilian scene are not alien to the military service. Why then should Congress have felt that a distinction must be drawn in this particular between civilian and military investigation? No peculiarly military problem of “presumptive coercion” can possibly be involved — for the very sound reason that the utility of the tactic under scrutiny depends obviously on the concealment of any element of officiality which might tend to create coercion. While there is a persuasive social interest in preserving mental freedom — an interest recognized in the Fifth Amendment’s dictate that no person shall be compelled to be a witness against himself — what is the comparable strong interest which dictates a protection of the individual who, of his unimpaired volition, talks too much and not wisely? I can think of none. I see no sort of reason in basic policy why Article 31 (E>) should have been intended by Congress to touch the type of matter with which we are now concerned— and nothing whatever in the legislative background which suggests that it was so intended. Indeed, the element of ritual and formality inher- ent in words like “request” and “interrogate,” as used in Article 81(6), to me indicates with clarity that Article 81(6) was not designed to touch the casual and informal context in which Ferguson and the accused conversed. Cf. Webster’s New Collegiate Dictionary, 1949 ed, synonyms listed under the word “ask,” page 52.
y
In conclusion, I cannot ascribe to Congress — without a substantially more positive indication than I am afforded here — a wish to outlaw practices which are elsewhere sanctioned, and even affirmatively approved, in the investigation of crime. In the absence of clearer evidence than I have been able to secure, I simply cannot believe that Congress intended to require a procedure which renders those practices wholly unfeasible — and to assess against their use the penalties of Article 98, supra. Nor am I disposed, like Canute, to seek to “punish” the draftsmen of Article 31(6), for their failure to make its intendment more lucid. Indeed, the brunt of such punishment — if any — would fall, not on the Code’s draftsmen, but rather on the back of the non-culpable military investigator of crime, and on agencies charged with the maintenance of discipline and the protection of the national security. In this matter, which I consider of gravest import to the Armed Services, I cannot accept an' approach which interlineates a statute, but chooses to discard the only interpretative gloss which would accord with the purposes and historical background of the legislation involved.
Cf. United States v. Five Gambling Devices, 346 US 441, 98 L ed —, 74 S Ct 190; Switchmen’s Union of N.A. v. National Mediation Board, 320 US 297, 88 L ed 61, 64 S Ct 95; Harrison v. Northern Trust Co., 317 US 476, 87 L ed 407, 63 S Ct 361; United States v. Wrightwood Dairy Co., 315 US 110, 86 L ed 726, 62 S Ct 523; Boston Sand and G. Co. v. United States, 278 US 41, 73 L ed 170, 49 S Ct 52.
State v. Hofer, 238 Iowa 820, 28 NW2d 475; Flowers v. State, 152 Fla 649, 12 So2d 772; Wigmore, Evidence, 3d ed, § 841 ; Inbau and Reid, Lie Detection and Criminal Interrogation, 3d ed. pages 222-3.