(concurring) :
On the merits here, I find difficulty in seeing how the accused could have been prejudiced by the procedure employed — this for the reason that I do not believe that he succeeded at any time in raising the issue of sanity. Since the court-martial is bound to presume sanity — absent evidence reasonably raising the converse — how then could the appellant have been harmed in a legal sense even by incompetent evidence indicating that he was sane?
However, the procedure employed seems to me to have been entirely correct. It is specifically authorized by the Manual — and the law officer’s instructions carefully limited the medical report’s admissibility to its proper sphere of utility. The court-martial’s consideration of this paper on the interlocutory issue really constituted a measure designed to assure — before any question of convicting him was reached— that the accused’s sanity had been the subject of inquiry by experts. Admittedly, the procedure may possibly be perverted so as to place evidence before court-martial members for an improper purpose. However, the risk of perversion seems insufficient to me to justify invalidating the explicit Manual provision.
It is to be noted that, under the 1949 Manual’s paragraph 112c, the sanity report of a board of medical officers, convened in accordance with Manual provisions, was admissible without limitation, “provided the officers making such *189report are made available for call as witnesses by the prosecution, defense, or the court for examination.” I am inclined to believe that, if the present qualified Manual provision in some fashion contravenes the Uniform Code, then the broader one found in the 1949 Manual must have violated the Articles of War. Had this been the case, Congress would doubtless have indicated a wish wholly to reject the use of such reports. In any event, the practice under the last-mentioned legal source suggests that the consideration of such a report has not generally been deemed to inflame and prejudice a court-martial in its determination of the mental condition of an accused.