(dissenting):
I dissent.
In my opinion the United States is not at war so as to suspend the running of the statute of limitations in this case. In United States v. Ayers, 4 USCMA 220, 15 CMR 220, I set out the reasons for my belief that the United Nations resistance to communist aggression in Korea did not create a state of war in the United States.
Since the statute of limitations was not suspended, it is necessary to determine whether the defense was waived by the accused. Ordinarily, a failure to interpose the statute of limitations constitutes a waiver. However, it is apparent that the Manual for Courts-Martial, United States, 1951, requires more than a mere failure to assert the statute in order to constitute a waiver. In two separate instances, the Manual expressly provides that the court “will bring the matter to the attention of the accused and advise him of his right to assert the statute unless it otherwise affirmatively appears that the accused is aware of his rights in the premises.” Paragraph 68c, page 101, paragraph 53⅛, page 75. There is no such affirmative showing in this record. Consequently, the accused did not waive his right to assert the statute. However, since the Government has not been accorded an opportunity to show that the statute may have been tolled for at least a part of the time, see Article 43(d), 50 USC § 618, I would not dismiss the charges, but order a rehearing.