(concurring in the result) :
I have no difficulty at all in concurring in the result reached by the majority in this case, although I cannot under any circumstances accept the broad ground on which it is based.
The effort in the principal opinion to distinguish Wilson and Harvey serves to demonstrate, rather than to conceal, the regrettable fact that, in at least one of its critical aspects, that *157landmark case has been repudiated. This, I think, is a sad mistake. In speaking of an earlier example of the sapping process found at work in the instant case, I used the following language: “I am much afraid that the attitude this approach reflects will lead inexorably to a future course of decision based almost wholly on a theory of waiver.” United States v. Smith, 2 USCMA 440, 9 CMR 70. The reader may be' assured that I derive scant satisfaction from the present evidence of accuracy of the melancholy prophesy offered in Smith. It is obvious to me that the action of the majority here constitutes an explicit surrender of an important aspect of the function of this Court.
I am told that the broad principle of waiver laid down by the majority will serve to bring the practice of this Court on the point into accord with that set out in the Federal Rules of Criminal Procedure. This — I must confess —is a matter of comparative indifference to me. However proper within their sphere, the Rules were in no sense drafted with an eye to court-martial proceedings. Moreover, the traditional attitude of military law toward the concept of waiver is the exact antithesis of that proposed by my brothers here. Our job, as I see it, is to administer the Uniform Code of Military Justice, and — where free to do so — to select from the Federal Rules and other sources those principles, practices, standards, and attitudes which we deem appropriate to military —as distinguished from civilian — law administration. A full expression of my views on the place of waiver in the military justice scene will be found in a separate opinion in United States v. Smith, supra.
There can be no doubt that — in other opinions — my brothers have not hesitated in what they deemed proper cases to depart from the precepts of the Federal Rules of Criminal Procedure. All of us, I think, feel entirely free to select — in instances where it is open to us to choose. We simply disagree on occasion as to the source of the desirable military rule. Let us not, therefore, make a fetish of adherence to the Federal Rules in this instance.
II
My willingness to agree with the majority in their disposition of this case stems from my complete certainty that we have before us here a case squarely within United States v. Seymour, 3 USCMA 401, 12 CMR 157, and United States v. Josey, 3 USCMA 767, 14 CMR 185. The record in the instant case is as silent as the tomb on the question of whether an Article 31 warning was given the accused. While it does' not affirmatively appear that such a warning was accorded him, neither does it appear that one was not. Therefore, we do not find that “clear case” calling for an invocation of the doctrine of general prejudice demanded in Josey, nor that suggestion of involuntariness contemplated by us in Seymour.
III
It is even probable that we have here a waiver in the historic, true, and precise sense — that envisaged by the current Manual in paragraph 154⅞ at page 297. Of course, this is to be distinguished sharply from the “constructive” or “administrative” waiver in the minds of my brothers. Viewed from one standpoint, the statement of the accused under scrutiny here was distinctly incul-patory in character. Yet considered from another, it clearly denied guilt. Although the Government offered it in evidence, and appeared to regard it as inculpating the appellant, is it not possible that — because of its exculpatory aspect — the defense knowingly and deliberately chose to let it in?
If this was the case, then we have a waiver in my language, for there — in the phrasing of the Manual, supra — “it [would] clearly . . . [appear] that the defense . . . understood its right to object” and made an informed choice. It must not be forgotten that the Manual also provides explicitly that “a mere failure to object does not amount to a waiver except as otherwise stated or indicated in this manual.” (Emphasis supplied.) But I need not rely on this ground — for, under my view, we do not reach the question of waiver. It can*158not be denied, however, that the ratio of the majority in the case at bar flies in the very teeth of the Manual directive quoted earlier in this paragraph. Courts are required to decide cases, and must ever act to fill a legislative hiatus. However, an instance of judicial legislation in the face of the specific terms of positive law is quite another thing— and an indefensible and shocking one. This Court has repeatedly stated — and with unqualified unanimity — that it is bound by the dictates of the Manual in the absence of conflict with the Uniform Code. See e.g. United States v. Lucas, 1 USCMA 19, 1 CMR 19; United States v. Sonnenschein, 1 USCMA 64, 1 CMR 64; United States v. Hemp, 1 USCMA 280, 3 CMR 14; United States v. White, 3 USCMA 666, 14 CMR 84; United States v. Greer, 3 USCMA 676, 13 CMR 132.