(concurring in the result) :
Because my associates concur in a principle which results in a classic example of judicial legislation, I feel it advisable, before setting out my reasons for concurring, to point out areas of disagreement. Much, and most of it imaginary, has been said about the noxious results of my concepts, but they speak for themselves. I would, however, suggest that a rule which grants to an informer the right to violate a statute which controls other members of the armed services is so repugnant to the ordinary concepts of common sense that it ought to be struck down and never revived. While I neither commend nor condemn the use of undercover agents, I see no reason to place *758them in an exalted position. Their conduct should, at least, be governed by principles controlling others and, because they can deceitfully conceal their identity by changes in apparel, should not be good cause to exempt them from complying with the law.
Perhaps the principal misconception in the Court’s opinion is that if we interpret the provisions of the Manual to include undercover agents, we thereby preclude their use by the Government. Of course, that is not true. We merely prevent them from obtaining evidence by interrogation. From my limited experience with their operations, I believe they can be used effectively if they listen, observe, and report. It is only when they seek to obtain a confession or admission by questioning an accused that they run afoul of the provisions of Article 31 of the Code, 50 USC § 602. I fail to see why their employment, unfettered by that Article, is of such importance that they are permitted to destroy a fundamental right accorded to an accused. If they can ignore the warning provision of that Article, then members of the Criminal Investigation Division should go underground to carry on their activities. In that way, they can mold the rule of evidence and emasculate the statute. No one disputes the fact that undercover agents have long been in use in crime detection and I am willing to conclude that members of Congress were well aware of their employment. For that reason, I believe that had members of Congress intended to free them from the restrictions of Article 31, the Code would have so stated. Congress did not see fit to grant them special privileges and I am unwilling to warp the provisions of the Code for their benefit. Necessity may actuate Congress in legislating for their use; but it should not influence us to rewrite a statute.
Another misconception I find in the opinions of my associates is that volun-tariness is the touchstone . by which we measure those cases. That theory does not find root in the Code, the Manual, or in our decisions. In my concurring opinion in United States v. Josey, 3 USCMA 767, 14 CMR 185, I set forth some of my views for concluding that failure to warn and involuntariness are separate and distinct bars to the admission of evidence. However, I believe it advisable to set forth other reasons which compel my belief that the two concepts must be disassociated. In doing so, I shall develop briefly the history of Article of War 24, 10 USC § 1495, which is the predecessor of Article 31 of the Uniform Code. For that purpose I shall commence with Article of War 24 as it existed in 1928. At that time the Article provided as follows :
“No witness before a military court, commission, court of inquiry, or board, or before any officer conducting an investigation, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board, or before an officer conducting an investigation, shall be compelled to incriminate himself or to answer any question the answer to which may tend to incriminate him, or to answer any question not material to .the issue when such answer might tend to degrade him.”
At that time, failure to warn and involuntary confessions were unmentioned in the Article. However, the Manual recognized the rule of law dealing with the exclusion of involuntary confessions and it provided for their inadmissibility. With only one principle recognized, it goes without saying that there was no blending of the two. The Manual for Courts-Martial, U.. S. Army, 1949, shows Congress adopted Article of War-24, but it added one additional paragraph which is as follows :
“The use of coercion or unlawful influence in any manner whatsoever by any person to obtain any statement, 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 ob*759taining 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.”
It is to be noted that the 1949 amendment for the first time introduced into military law the requirement that a warning must be given to an accused before taking any statement from him. It is further to be noted that that Article made the use of coercion or unlawful influence in obtaining a statement conduct to the prejudice of good order and military discipline. The Act is significantly silent about the conduct of one who fails to warn. In addition, the amendment provided that any statement which was involuntary should not be received in evidence. Again the Act is silent as to the admissibility of a statement given without warning. The drafters of that Manual must have considered the two as separate cloaks of protection for an accused and governed by different rules.
The Congressional committee, who prepared the present Code, gave considerable thought to further amending Article of War -24 and their conclusions are expressed clearly in the present wording of the Code. They broadened the base of the former Article of War and the best evidence of their belief as to the applicability of Article 31 can be found in the statements made during the legislative hearing. I quote from the hearings before the House Committee on Armed Services, 81st Congress, First Session, on H. ft. 2498, pages 984, 985:
“COMMENTARY: . . . Subdivi- . sion (b) broadens the comparable provision in A.W. 24 to protect not only persons who are accused of an offense but also those who are suspected of one.
“MR. LARKIN: ... In addition we have provided, as you see, that a person must be first informed in effect that anything he says can be used against him. That is not a requirement normally found in civil courts— this provision of informing a man in advance.
“MR. BROOKS: Isn’t it a requirement in the Federal courts ?
“MR. LARKIN: I don’t believe so. It is not in most State courts. But here we do provide that you must inform him in advance and if you don’t, then anything he says is inadmissible as far as he is concerned.”
The previous quotations show a deliberate intent to build a separate ground of inadmissibility. Furthermore, the following statements argue persuasively that the framers of the Code did not intend to associate failure to warn with coercion. If they intended to merge both concepts into one, then these statements concealed that intent. In discussing the application of the Article to the military and to the civilians, the following discussion took place (pages 991, 992) :.
“MR. LARKIN: I think there ought to be a distinction pointed out .there, Mr. Chairman. In many State jurisdictions the local authorities have no obligation to inform a person suspected of an offense that any answers they make may be used against them.
“I don’t think if a confession is obtained by the civilian authorities that it should be inadmissible because the civilian authorities neglected to inform the man in advance of his rights.
“I do say this: If the civilian authorities extracted the confession from the man by any force, coercion or in any way that would make it an involuntary statement, then I think certainly it should not be admissible in evidence against him in a military trial.
“But you would face this situation if you required the civilians — whom you can’t require by this code — to inform a suspect in advance as provided in subsection (b) : A man may voluntarily walk into the local civilian authorities or a police station and make a confession and they won’t know what it is all about and not having any obligation to inform him or hot seeing any reason to, why you would *760then not be able under the construction presented here to use such a statement or such a confession against the man. I think that would be — ”
If the framers of the Code and the members of Congress who participated in the hearings did not intend to mark out a field of inadmissibility based on failure to warn, not associated with coercion or inducement, then they discussed the subject at great lengths for nought. If involuntary confessions obtained by civilians could be excluded from evidence and if those obtained without warning are involuntary, then all are excluded. Had coercion through authority been the only vice they were trying to regulate, there was no need of separately discussing the effect of failure to warn by civilians. Of course, it can be said that Con- gress was aware that in the military a superior officer or noncommissioned officer, merely by virtue of his office, exercises influence over a serviceman and, therefore, compulsion is always present. Compulsion always being present, a warning was necessary to neutralize that coercive factor. If that is the touchstone to be used then I suppose a sergeant need not warn an officer before taking a statement and a private need not warn a sergeant.
I have presented the foregoing arguments to point out the expressed intention of those who draft- ed the Code and the members of Congress who adopted it. However, that only becomes important if, in this setting, the Article must be interpreted because it is ambiguous and uncertain. To me it is crystal clear that failure to warn stands on its own bottom unsupported by involuntariness, and at the risk of being charged with over-simplification, I point out why. Subsection (6) provides :
“No person subject to this code shall interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is. accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”
The subject of that subsection is failure to warn and that alone. There is no hint that coercion is hidden in the background. That subject is covered in other subsections. Subsection (d) provides:
“No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement shall be received in evidence against him in a trial by court-martial.”
That provision is in the alternative and that suggests it is severable into two parts, namely, (1) a statement obtained in violation of this Article (subsection (6), failure to warn), and (2) a statement obtained by the use of coercion, unlawful influence, or unlawful inducement. Not only does the Article identify separately the ' two requirements, but. failure to warn can be applied with no difficulty in this case. Assuming the undercover man was an agent working for the Criminal Investigation Division, the provisions of the subsections are fitted to the facts in the following manner: (1) an informal investigation was being conducted, (2) the interrogator was subject to the Code, (3) he requested a statement from the accused who was suspected of an offense, (4) he failed to warn him, and (5) the statement is inadmissible under subsection (d).
Laying aside the language by Congress, I think it of importance to this decision to explore the purpose it had in mind when it broadened the scope of Article of War 24. That purpose was to protect an accused from being importuned to confess his part in a crime without full knowledge that he need not do so. I fail to see how that purpose can be furthered by permitting an interrogator to conceal his identity and then obtain the evidence. Interrogation is not changed because the interrogator wears denim and not khaki. It is unthinkable to believe that Congress in*761•tended to permit members of the Armed Forces to control the admissibility of evidence by the simple expedient of putting on the robes of an informer. The Court so holds; but I believe in so doing, my associates must conclude that Congress intended to place clandestine ■operations on a higher plane than those conducted aboveboard. Moreover, embodied in their principle is a conclusion that Congress intended to grant to an accused a right, which by a change in uniform, can be rendered worthless. Those conclusions are contrary to my belief that Congress intended to protect the accused — not the informer.
The instant case announces principles poles apart from the concepts announced by us in previously decided ■cases. If those concepts were not spelled out clearly, or had we over•extended the rule, there might be reasons to clarify or retreat. But I find ■neither present in this case. We forcibly condemned the interrogations of unwarned persons suspected of.an offense by all persons subject to the Code, regardless of any pressure applied, in those cases. Moreover, we left no uncertainty about the rule that failure to warn alone was sufficient to bar a statement. I quote some statements from •opinions written by my associates. In "United States v. Wilson and Harvey, 2 USCMA 248, 8 CMR 48, they stated:
“. . . We have no hesitancy in stating categorically that there is not •a scintilla of evidence in the record to indicate that these admissions were mot in fact voluntary.
“However, this does not dispose of the problem raised by their reception in evidence. Sergeant Wang did not preface his question with any sort of warning of the rights ■secured by Article of War 24, supra. Was it, therefore, error to receive the admissions in evidence, and, if :so, does that error require reversal?
“We turn now to the problem of -whether the erroneous admission of these statements requires that these ■convictions be reversed, entertaining mo doubt that an affirmative answer is required. Where — as here — an element of officiality attended the questioning which produced the admissions, there is more than a violation of the naked rule of Article 31(b), supra; there is an abridgment of the policy underlying the Article which must — -we think — be regarded as ‘so overwhelmingly important in the scheme of military justice as to elevate it to the level of a “creative and indwelling principle”.’ United States v. Lee (No. 200), 2 CMR 118. To put the matter otherwise, we must and do regard a departure from the clear mandate of the Article as generally and inherently prejudicial. United States v. Berry (No. 69), 2 CMR 114, decided March 18, 1952.”
There is considerable doubt now about the blending of failure to warn and involuntariness, but there was not when we published United States v. Williams, 2 USCMA 430, 9 CMR 60. The Court in that opinion stated:
“We should perhaps make it quite clear that we are not deciding whether the confession in question is voluntary or involuntary. In every military confession, there fnust be two inquiries. First, was the accused properly warned, and second, was the confession obtained as a result of coercion, unlawful influence, or unlawful inducement? The confession must be excluded from evidence, according to the plain language of Article 31(d), if either of those proscriptions is violated:
‘No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement shall be received in evidence against him in a trial by court-martial.’
“The accused was not warned as required • by Article 31 — in point of fact, he was warned in explicit violation of the terms of that .Article. Therefore, it was error to receive the resulting confession in evidence. Article 31(d), supra. We may note that we have previously held a violation of those warning requirements of the Code to be so important, policy-wise, as to cause invocation of the *762doctrine of general prejudice, thereby rendering unnecessary an inquiry as to whether improper consideration of the confession was specifically prejudicial to. the accused’s substantial rights.”
I can hardly find in those quotations justification for holding that Congress intended to impose two burdens on those who investigated openly and only one for those who- work surreptitiously. On the contrary, those statements announced a rule which should leave no doubt in the mind of any reader that the majority of the Court believed that a failure to warn by anyone subject to the Code was such a flagrant error, that they would not scrutinize the record for prejudice.. Now it only becomes scandalous if the interrogator is honest enough not to conceal his identity.
In United States v. Pedersen, 2 US CM A 263, 8 CMR 63, we refused to permit a statement given without prior warning to be used for impeachment purposes. We were not concerned with coercion, as the accused voluntarily testified. Moreover, we placed our stamp of approval on paragraph 153& (2) (c) of the Manual for Courts-Martial, United States, 1951, which isolates clearly failure to warn from coercion. We there said:
“This testimony indicates that the, accused was not informed, as required by Article 31 of the Code, 50 USC § 602, that any statement made by him could be used against him in a subsequent court-martial trial. The statements were obtained in violation of Article 31. Therefore, their use for impeachment purposes was improper and constitutes prejudicial error. Article 31, supra; paragraph 1536(2) (e), Manual, supra; United States v. Welch (No. 196), 3 CMR 136, decided May 27, 1952; United States v. Wilson and Harvey (No. 647), 8 CMR 48, decided February 27, 1953.”
We can, of course, say we should retreat from those principles and throw a cloak of protection around a hired informer. I pause to wonder why. The Court in substance answers by saying: (1) the Government should be permitted to use informers; (2) if they are required to warn, they cannot conceal their purpose; and, if they must warn and do not, they can be prosecuted. My replies to those answers are these: First, the Government can use informers if they do not seek to avoid the law. Second, they need not disclose their purpose unless they seek by interrogation to obtain an incriminatory statement. Third, if an investigator who works in the open can be prosecuted for obtaining a statement from an accused without a warning, which I doubt, then both he and an agent who commit the same oifense should not escape because they work undercover. Whether a person subject to the Code can be prosecuted for not complying strictly with the requirements of Article 31 is foreign in this case, but if anyone subject to the Code can participate in an investigation, and regardless of regalia, obtain a statement without warning, then the right my associates have so valiantly defended has been rendered! worthless.
Federal civilian courts are not confronted with failure to warn, but there is a provision which can be analogized to Article 31. The provision I have in mind is the one found in 47 USC § 605, and it is commonly referred to as the “Wire-tapping Act.” The Federal courts have uniformly held that evidence obtained by Federal officers in violation of that section is not admissible in evidence. Article 31 is comparable with those holdings as it provides that statements obtained without warning are -inadmissible. Would anyone seriously contend that the provisions of the United States Code could' be circumvented by agents of the Federal Government employing undercover men to tap wires for them? Moreover, is it rational to contend that when Congress placed that limitation on the admissibility of evidence, it intended to deny to the Government the right to use undercover agents ? All I can gather from the Act is that it may circumscribe their activity, and I know of no good reason to support a holding that they should not be limited. They should operate in their sphere within the law, and members of the armed *763services should be governed by the same ¡principle.
Now as to my reasons for concurring in the result.
I would affirm the conviction on the basis of the test laid down by me in my dissent in United States v. Wilson and Harvey, supra. In that case I stated:
“. . . Accordingly, I believe before the advice required by the Article need be given, three conditions should be fulfilled: first, the party asking the question should occupy some official position in connection with law enforcement or crime detection; second, that the inquiry be in furtherance of some official investigation ; and third, the facts be developed far enough that the party conducting the investigation has reasonable grounds to suspect the person interrogated has committed an offense.”
Collectively, all three conditions suggest that the interrogation be surrounded with an air of some officiality and I believe the Manual for Courts-Martial, United States, 1951, ante, and the hearings before the Committees •of Congress ■ support that proposition (see Comments, pages 990-991, Hearings Before the House Committee on Armed Services, 81st Congress, 1st Session, on H. R. 2498, Uniform Code of Military Justice). Moreover, a reading of the Article is con- vincing that Congress could not have intended Article 31(b) to cover casual conversations, because the language used compels the conclusion that the interrogator is pursuing some official inquiry as he must know that the person to whom he is talking is suspected of a crime; he must inform him of the nature of the accusation; and he must explain to him that what he says may be used against him in a court-martial.
Under any interpretation of the facts In this ease, the interrogator, if he can be classified as such, could hardly be considered as operating under a mantle of officiality. I have not overlooked ¡the contention that under one view of the evidence, Ferguson became an agent of the Criminal Investigation Division because he carried tales, therefore, he was brought within the spirit and intent of Article 31(b). Of course, if that theory of agency is sound, then every person, civilian or military, even though a volunteer, who assists a service agency in gathering facts, becomes an agent of the service if he seeks to obtain any information vocally. Under that hypothesis the burden is cast upon him to make certain Article 31 of the Code is explained prior to a question, or the evidence obtained is inadmissible. That coverage is so complete that a civilian police officer who hás been requested to assist in apprehending a deserter would become an agent who would be subject to the Code and who could not elicit a suspectee’s name, address, or any other admissible information concerning him unless he had previously recited Article 31(b). In most instances he would be entirely ignorant of its contents and totally unequipped to explain its provisions. The legislative hearing supports my contention in that regard.
This particular case is a concrete illustration of the inapplicability of the civil doctrine of agency when it is used as a basis for determining the officiality of an investigation. The argument in support of applying the doctrine goes: the Criminal Investigation Division was investigating; Ferguson was an agent; therefore, he was conducting an investigation. If so, he was unaware of his status and so was accused; and what he was' investigating is a matter of pure speculation. While the record lacks some in clarity, it shows the conversation occurred on the 12th or 13th of February 1952, and at that time the accused was awaiting trial on a- charge of leaving his post as a sentry. That offense'is not involved in this case. He was not charged with these particular offenses until some fifty days later. From this, it seems reasonably apparent to me that any question framed by Ferguson to obtain information as to why the accused was in confinement, if •pointed toward any crime, could only have referred to the one known offense and not to others which' were the basis *764for later prosecution. It may be that under different circumstances one working for an official investigator might be so controlled and directed that the doctrine of agency could be applied rationally. But merely because Ferguson was a handy conduit through which information could be obtained does not create a principal and agent relationship.
My concern in this case has little to do with undercover agents, but I am disturbed over laying down a rule of law which will close up many perfectly legitimate sources of crime detection. I do not believe that necessary, as it is proper to construe the language of a statute in a narrow and restricted sense, if, by doing otherwise, absurd and impossible results would be obtained. It is a fair assumption that Congress did not intend to saddle criminal investigations with insurmountable obstacles and a literal interpretation of Article 31 would bring about that effect. The framers of the Manual appreciated the difficulties to be encountered, and Article 31(5) was interpreted to apply only in the event the interrogation or questioning occurred in an informal or formal investigation. Maybe an inquisitive busybody or a prison decoy carries on an investigation when he asks a few casual questions, but not under my interpretation of the proceedings nor under my views of what I designate as occupancy of an official position.
A second ground to support my contention that a warning was not required is present in this instance. In this connection I am applying well known rules of civilian law and I am clothing the law officer in the military with the powers which befit his assignment. I have not found one good reason for not granting him the authority he needs to control properly the trial of a law suit, yet it appears to me that my associates seem unwilling to embrace the concepts which will accomplish that purpose. Wigmore, Evidence, 3d ed, § 2550, provides :
“The admissibility of a given piece of evidence is for the judge to determine. This general principle is not disputed; its application to the various kinds of evidence — qualifications of witnesses, absence of a hearsay deponent, voluntariness of a confession, condition of a dying declarant, and so on — has already been considered under the various heads of evidence.. It follows that, so far as the admissibility in law depends on some incidental question of fact— the absence of a deponent from the jurisdiction, the use of threats to obtain a confession, the sanity of a witness, and the like — this also is for the judge to determine, before he admits the evidence to the jury.
“This principle, one of the foundation-stones of our law, has countless applications under the various rules of admissibility.
“In more recent times, however, a heterodox practice has appeared, in places, of leaving some questions of admissibility to the jury. No doubt the judge, after admitting evidence, leaves to the jury to give it what weight they think fit, for they are the triers of the credibility and persuasive sufficiency of all evidence which is admitted for their consideration (post, § 2551). But to hand the evidence to them, to be rejected or accepted according to some legal definition, and not according to its intrinsic value to their minds, is to commit a grave blunder'. It is an error of policy (as well as a deviation from orthodox principle) for several reasons; in the first place, it is a needless abdication of the judicial function —of which humility we have already too much; furthermore, it adds another to the exceptions to the general rules; and finally, it cumbers the jury with legal definitions and offers an additional opportunity for quibbling-over the tenor of the instructions.
“In the appurtenant corollaries of this function of the judge, it may be noted that he may of course hear evidence on both sides for determining the facts on which the rule of' admissibility turns; that during this, process the jury may be retired out of hearing’; and that the judge’s determination of this question ought. *765to be final, beyond review by appeal, and is so by the wholesome rule of a few Courts.”
I hope to see that general principle developed as a concept in military law and I would apply it in this case. If that were done, an affirmance would be required and a good rule of law would be announced. So far as I can ascertain, it would improve the administration of military justice to divorce the court members from ruling on questions of law. One of the first steps to accomplish that would be to permit the law officer, in all instances not prohibited by the Code and the Manual, to rule on questions of law, and certain mixed questions of law and fact, when the latter are necessary to a proper determination of the former. Under that method of procedure, after the evidence had been admitted by the law officer, the members of a court-martial would determine its weight as it affects guilt or innocence but they would not be concerned with the facts as they bear on admissibility. Concededly, that general rule cannot be used in every instance as the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951, require a limited number of exceptions, but others should not be grafted on by this Court.
Some difficulty is encountered in applying the foregoing principle to all the matters covered in Article 31 and this may be occasioned by the fact that, at first blush, the Manual seems to discuss indiscriminately statements whose admissibility depend upon either volun-tariness or failure to warn. We, however, should be competent to distinguish them clearly and rule accordingly. In some instances the two grounds may blend together while in other instances, there is no reasonable relationship. In the latter instance, where inadmissibility depends upon failure to warn, the ruling of the law officer should be final, and the ultimate triers of fact should have no authority to redetei*mine that, issue. In furtherance of that principle, I desire to point out that the last subsection of Article 31 contains two parts which are stated in disjunctive and I quote them: “No statement obtained from any person (1) in violation of this article, or (2) through the use of coercion, unlawful influence, or unlawful inducement, shall be received in evidence against him in a trial by court-martial.” That section deals specifically with two separate and distinct areas which, if invaded, will render a statement inadmissible. The second area covers statements made under compulsion and the- first covers those which are given without the required warning. The reason for excluding the latter arises out of its possible untrustworthiness, while the former is not predicated on that premise. Here we have a clear-cut issue as this case furnishes a classic example of a suspectee making a statement 'when there is no compulsion exercised, but there is a failure to warn present, The two problems thus posed are: (1) Who makes the final determination on the admissibility of the statement when inadmissibility depends solely on failure to warn and (2) is there evidence to support the finding?
Article 51(6) provides as follows:
“The law officer of a general court-martial and the president of a special court-martial shall rule upon interlocutory questions, other than challenges, arising during the proceedings. Any such ruling made by the law officer of a general court-martial upon any interlocutory question other than a motion for á finding of not guilty, or the question of accused’s sanity, shall be final and shall constitute the ruling of - the court; but the law officer may change any such ruling at any time during the trial. Unless such ruling be final, if any member objects thereto, the court shall be cleared and closed and the question decided by a vote as provided in article 52, viva voce, beginning with the junior in rank.”
Language could hardly express more clearly that the law officer’s ruling on the admissibility of evi- dence is final and it makes no difference whether the admission is opposed for reasons of involuntariness or failure to warn. It is true that when the admission is opposed because of involuntariness, the *766statement may be given some preferential consideration by the members of the court-martial, but this need not be extended to failure to warn. As to the former, this is what the Manual states:
“The ruling of the law officer (or of the special court-martial’) that a particular confession or admission may be received in evidence is not conclusive of the voluntary nature of the confession or admission. Such a ruling merely places the confession or admission before the court, that is, the ruling is final only on the question of admissibility. Each member of the court, in his deliberation upon the findings of guilt or innocence, may come to his own conclusion as to the voluntary nature of the confession or admission and accept or reject it accordingly. He may also consider any. evidence adduced as to the voluntary or involuntary nature of the confession or admission as affecting the weight to be given thereto.” [Emphasis- süpplied.]
In this case it is conceded the confession was voluntary so we can banish any further discussion on that issue and proceed to the other. There is no similar Manual provision allowing each member of the court-martial to come to his own conclusion on failure to warn, and this brings into prominence the fundamental' difference between the two. When a person has been compelled, coerced, or induced to make a statement he may fabricate the story. Certain individuals, to escape abuse or maltreatment, may concoct false versions of events or may confess to crimes they did not commit. The probabilities that they will, vary directly with the pressure applied, but in all instances when a person is not permitted to exercise a free choice, his statement may not be entirely trustworthy and the court should be permitted to consider any statement in light of that pattern of human behavior. That reason does not, however, apply when the interrogator merely fails to warn. The absence of warning, uninfluenced by other and separate coercive factors, has little relationship to trustworthiness, and, even though the triers of fact may believe or disbelieve the statements for a myriad of reasons, the mere failure to warn can hardly be considered influential. Certainly, there is no burden placed on the law officer to permit the court-martial to accept or reject his ruling.
The previous statement presupposes a dispute as to whether a warning was given, but that was not in issue here. No one suggests a warning was given, but there were other factual matters which were encountered by the law officer and he had to resolve those disputes before he could rule on the admissibility of the statement. He was faced first with a determination of whether officiality was present. Any possible holding that it was could only be sustained by a finding that Ferguson was an agent used by the Criminal Investigation Division to interrogate the accused. There was a conflict in the testimony as to that status and the law officer ruled in favor of the Government’s witnesses. If he chose to believe one witness and disbelieve another, he did not exceed his authority as he has the unqualified right to determine their credibility. A second question is: Did Ferguson interrogate or request any statement from the accused? Again there appears to be a dispute about that issue. The former stated that the accused had been confined in a stockade prior to his incarceration for this offense (he had served time on two occasions for absence without leave), and when he returned on this occasion, he, Ferguson, casually remarked, “What are you doing there [here] again?” and the accused then related the confession. The accused, on the other hand, testified that Ferguson hounded him for a period of days, and that the only information he disclosed was to the effect that he did not commit the offense. If the law, officer. believed Ferguson, then the statement was voluntary and there was no interrogation or inquiry in the accepted sense. On the other hand, if the accused’s story was accepted as the true version, then Ferguson’s conduct could have violated the Code.
I have presented two legal issues which affected the admissibility of the statement. The facts underlying those *767issues had to be determined by the law officer and his ruling on them is final. We can overturn his ruling only if there is not evidence to sustain it; in this instance, I find there is sufficient evidence to support his conclusion. I would, therefore, hold the law officer did not commit error in permitting the statement to be introduced in evidence.