(concurring in the result) :
I concur in the result.
I do not concur outright because I am unwilling to join my associates in deciding cases on a rationale which seems *779to rely on the strength of the medicine to be administered. I much prefer to use what appears to me to be a less difficult approach. At times it is necessary to make razor-sharp distinctions to escape' the effect of previously decided cases, but if so, this- litigation, from my viewpoint, does not require such a refinement. The simple rules of law used by the board of review are ample to answer the question posed in this ease, and had I joined with the majority of the Court in United States v. Wilson and Harvey, 2 USCMA 248, 8 CMR 48, I would affirm the board of review’s decision.
When considered in the light of facts and circumstances, either shown in the record or reasonably infer- able therefrom, I have little difficulty in finding that accused’s acts, conduct and statement amounted, in law, to a confession. That it was induced by promise of immunity seems beyond cavil. The complaining witness stated, and the statement is not challenged, that the accused conceded his participation in the crime only after he was led to believe by the victim and the Criminal Investigation Division sergeant that he would not be prosecuted if the money was returned. Moreover, the complaining witness wanted to carry out his promise as at the time of trial he so testified. Therefore, I cannot find a satisfactory reason for disagreeing with the board of review’s conclusion which is expressed in the following language :
“Considering the intelligence of the accused, his grade and length of service, it cannot be said that he was not influenced to confess when told by the victim that the latter did not want to press charges if he got his money back. Moreover, this conclusion is strengthened when the implied promise of immunity is made in the presence of an investigative authority, a sergeant in the CID, who allegedly said it would be all right if the victim did not want to press charges. In this factual background we can come to no other conclusion but that the accused was unlawfully induced to make his confession to the CID agent (Par. 140a, MCM, 1951). The confession having been made involuntarily it was inadmissible under the quoted provisions of the Manual for Courts-Martial, 1951, and the provisions of Article 31(d) of the Code and failure to exclude it from the members of the court was prejudicial error (United States v. Monge (No. 9), 1 USCMA 95, 2 CMR 1; United States v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48, decided 27 February 1953).”
I can, however, assume that the incriminatory acts and statements of the accused amounted to no more than an admission and I arrive at the same conclusion. The Court’s opinion holds that because of an indication of involuntariness, it was error to allow the statement to be admitted. As previously stated I find more than an indication; but, in addition, I find another violation of Article 31 of the Code, 50 USC § 602. Here, the record supports a finding that a warning was not given the accused and this renders the statement inadmissible. Article 31 is as follows:
“(a) No person subject to this code shall compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.
“(b) 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.
“ (c) No person subject to this code shall compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.
“(d) 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.”
*780Subsection (a) covers compulsory self incrimination; subsection (E>) deals with situations where it is sought, by interrogation or request, to obtain a statement; and when that situation exists, the interrogator or requestor is saddled with the burden of warning the accused; and subsection (c) treats with another form of compulsion which is limited to degrading and immaterial evidence. Not one of those subsections mentions inducement, coercion, or unlawful influence. With those three subsections in mind, it is important to note the wording of subsection (d). The first phrase outlaws any statement ob-' tained in violation of the three previous subsections and each covers a separate and distinct-field of inadmissibility. The next phrase, which is disjoined from the first, moves into a fourth and an entirely different field which is well recognized as the area of involuntary statements. Conceding that, at times, failure to warn may be a factor in determining involuntariness, at other times the two have no reasonable relationship to each other. Not only does the Code specifically isolate failure to warn from the other proscriptions of Article 31 and involuntariness, but the Manual does likewise. In Paragraph 140a, I find at least two references which support that statement. These are:
. . some instances of coercion, unlawful influence, and unlawful inducement in obtaining a confession or admission are:
“Promises of immunity or clemency with respect to an offense allegedly committed by the accused.
“During an official investigation (formal or informal) in which the accused is a person accused or suspected of the offense, obtaining the statement by interrogation or request without giving a preliminary warning of the right against self-incrimination — except when the accused'was aware of that right and the statement was not obtained in violation of Article Sib.
“The admissibility of a confession of the accused must be established by an affirmative showing that it was voluntary, unless the defense expressly consents to the omission of such a showing, but an admission of the accused may be introduced without such preliminary proof if there is no indication that it was involuntary. If it appears that the confession or admission was not obtained from the accused but was made by him spontaneously (without urging, interrogation, or request, for example), the statement may be regarded as voluntary. If it does not so appear and affirmative evidence that the confession or admission was voluntary is required, the statement may not be received in evidence unless it is shown that the making of the statement was not induced by a threat, promise, or use of duress amounting to coercion, unlawful influence, or unlawful inducement. Also, in case the confession or admission was obtained by interrogation or request during an official investigation (formal or informal) in which the accused was a person accused or suspected of the offense, the statement may not be received in evidence, if affirmative evidence that it was voluntary is required, unless it is shown that through preliminary warning of the right against self-incrimination, or — if the statement was not obtained in violation of Article Sib — for some other reason, the accused was aware of his right not to make the statement and understood that it might be used as evidence against him.” [Emphasis supplied.]
The reservations concerning Article 31(6) in both quotations would be unnecessary if the codifiers of the Manual intended to always blend failure to warn into involuntariness. It is to be noted that Article 31 (5) makes a statement obtained by interrogation, and not preceded by a warning, inadmissible; and I conclude Congress intended that prohibition to apply without regard to the presence or absence of other matters touching on the admissibility of the statement. I, therefore, find that error was committed in admitting the *781statement contrary to the express wording of Article 31 (&).
The majority of the Court reaches this same point, but then they are confronted with the rule announced in United States v. Wilson and Harvey, supra. That ease influenced the board of review and it is interesting to note how and in what way it has now been modified. There the Court stated:
“We turn now to the problem of whether the erroneous admission of these statements requires that these convictions be reversed, entertaining no 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.” [Emphasis supplied.]
The Court now states the rule to be:
“. . . However, just as in the imagined case an absence of proof was not identified by us with a clear showing of departure from the mandate of Article SI, so in the case at bar, a suspicion of involuntariness may not be equated properly to such a departure.” [Emphasis supplied.]
What was a clear mandate now becomes a clear departure. Laying aside any arguments over semantics here, there is a violation of the same clear mandate of Congress and no matter what language is employed, it is clear, certain, and positive that the accused was not warned of his rights and that the confession was induced by promised immunity. If, in this instance, there is not both a clear violation and a clear mandate, then I misread a record and misinterpret a statute. I can understand why there should be an effort made to narrow the doctrine of general prejudice, and while I have never subscribed to it, I am in full accord with any restriction which will limit its application. However, in this instance, it is not necessary that we probe further in that field as this case can be disposed of by adopting the compelling evidence rule, a concept which is recognized in most jurisdictions and one which the Court concedes has long been the service rule. In essence that rule is expressed in Article 59(a), 50 USC § 646, which states we should not reverse a case in the absence of prejudice, and is herein quoted:
“A finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”
The board of review would have affirmed the finding in this case had it not been for the Court’s opinion in United States v. Wilson and Harvey, supra. Being convinced that the doctrine therein pronounced required a reversal here, the board of review so ordered. However, the members were convinced that the evidence of guilt was most compelling and the Court’s opinion suggests that my associates agree with that finding. So long as we all agree on that point, there is little necessity of relating the evidence or rationalizing on why the incompetent evidence could not have influenced the findings. All I need say is that the error did not materially prejudice a substantial right of the accused.