(dissenting):
I dissent.
Any fair appraisal of the record of trial in this case impels the conclusion that the issue of sanity was fairly raised by the evidence. Thus, rules other than those discussed in the majority opinion, apply to the problem which confronts us. During the course of cross-examination of the prosecution witnesses, the defense counsel elicited descriptions of the accused’s bizarre behavior at the time of the acts charged. At the close of the prosecution’s case, the trial counsel suggested the possibility that the defense was trying to raise the issue of mental responsibility of the accused and requested a determination of whether anyone desired to present a motion for further inquiry into the accused’s sanity. The defense counsel then presented such a motion and it was denied by the law officer, with the observation that “The court will consider the sanity issue as a matter pertaining to the general issue upon deciding the question of guilty [sic] or innocence of the accused.” At this point in the trial, the evidence did not fairly raise the issue of insanity. Nor can it be said that the law officer’s ruling on the motion for further inquiry was unsupported by the record. However, following this action, the defense showed that more than a year prior to the date of the offenses charged, the accused was hospitalized in Korea for “Disassociative reaction manifested by disturbed behavior.” Because of this condition, he was considered unqualified for combat duty and relieved from his assignment. A succession of defense witnesses then supplied other evidence of the accused’s condition, all tending to show a behavior pattern indicating insanity. However, neither the prosecution nor the defense presented any expert testimony on the subject. The defense counsel removed all doubt concerning his purpose in offering this testimony by declaring in his final argument that the defense was predicated upon the lack of mental responsibility. Questioned further by the president of the court as to his purpose, counsel denied that he was raising insanity as an interlocutory question but insisted that he was relying upon it as a defense to the charge. The president then asked the law officer whether the question of sanity had been raised. This question was not answered directly by the latter who declared simply, “It may be decided by the court on the merits of the case.” When it was suggested that the president’s questions be interpreted as a motion for further inquiry, the president specifically denied this with the statement, “The court is going to call for evidence.” Despite this clear statement of the court’s purpose, the law officer construed the remarks of the president as a motion for further inquiry and denied it, reiterating his view, that “The court may proceed to determine it on the merits of the case.” When this ruling was objected to, the exhibit in question was given to the members of the court for their consideration, over the strenuous objections of the accused. Needless to say, the contents of this exhibit effectively terminated all further questions on the subject and the court sustained the law officer’s ruling. Thereafter, the law officer instructed the court as required by Article 51 (c), Uniform Code of Military Justice, 50 USC § 626. He included in these instructions advice as to the defense of insanity which was complete and comprehensive.
Under all the circumstances of this case, especially the many statements of the law officer to the effect that insanity could be considered upon the *190general issue of guilt or innocence, that subject became the sole question to be determined by the court-martial. Since this is so, the provisions of paragraph 122c, Manual for Courts-Martial, United States, 1951, apply. Those provisions are as follows:
“The issue of the sanity of the accused is one of fact, and the modes of proof and rules of evidence with respect to this issue are, generally, those prescribed in Chapter XXVII.
“So much of the report of a board of medical officers or any other medical record as pertains to entries of facts or events which are properly admissible under the official records or business entry exceptions to the hearsay rule (1445, e) may be received in evidence. The opinions as to the mental condition of the accused contained in such a report are not within these exceptions to the hearsay rule.”
The procedure followed in this case denied the accused the fundamental right to be confronted by the witnesses against him and to cross-examine all adverse witnesses. In my opinion, these errors are sufficiently serious to require reversal of the decision of the board of review.