(dissenting):
I dissent from the views of the majority.
II
When the accused here was first tried by court-martial, the law officer ruled that an offered confession was inadmissible. Later, when tried under an entirely distinct charge stemming from a wholly different criminal transaction, the Government sought to make use of the same evidence. The accused countered unsuccessfully with a plea of res judicata. The issue now before us is whether the second court-martial was bound by the ruling of the law officer at the first trial. '
This ruling — my brothers say — “was clearly wrong.” I quite agree. However, it seems that the basis for this conclusion — both on the majority’s part and my own — -is that the law officer made an “error of law.” If his error related to the facts and their weight, I do not see how we can possibly assert that his ruling was “wrong” — for we are without power to review a law officer’s determination of facts relating to interlocutory matters arising during a court-martial trial. Cf. United States v. Josey, 3 USCMA 767, 14 CMR 185; United States v. Wilcher, 4 USCMA 215, 15 CMR 215.
The Manual for Courts-Martial, United States, 1951, in dealing with res judicata, indicates that the doctrine is applicable to issues of “fact or law.” Paragraph 716. This statement the majority accepts, but thereafter contradicts — or at least qualifies — by asserting that “res judicata does not apply to an unmixed question of law, United States v. Moser, 266 US 236, 69 L ed 262, 45 S Ct 66.” I believe that we all would agree that it is no easy matter to recognize with assurance an “unmixed question of law.” Perhaps the most appropriate approach to determining whether a ruling constitutes one of law solely is to consider, on the one hand, the extent to which it may be generalized in its logic; and, on the other, how much it must be limited by its rationale to the specific parties and the evidence before the court. Law, after all, is normally deemed to consist of more or less generalized and ecumenical guides to conduct.
Ill
The majority relates that, at the first trial, “the law officer held that the agent who obtained the confession must personally advise the accused under the Article or must be present and hear someone else do so.” Applying the previously mentioned criterion for the determination of what is and what is not a ruling of “law,” we may generalize this ruling with ease as follows: One who interrogates a suspect, or an accused, must warn the latter of his right to remain silent, or must hear such a warning given. Now if this is an “unmixed” ruling of law, the majority says that res judicata is out of the picture. However, they conclude that the present ruling- — despite its distinct susceptibility to generalization- — is not an “unmixed” ruling, and therefore that it created an estoppel which is not limited “to issues directly involved or collaterally involved,” nor to “issues arising out of one transaction.” Indeed, so far as the majority informs us, there exist literally no limits to the future effect of a law officer’s erroneous ruling at an accused person’s first trial.
The law officer’s ruling here enunciates a principle that — as suggested- — ■ is quite general in nature, and in no wise limited in its logic to the particular document which was before the court at the initial trial. In an expansive mood, let us assume that at some future time, the present accused were, to commit entirely new offenses, were to- be *377interrogated concerning those crimes, and were to execute a complete confession. However, we will suppose that the interrogation preceding the confession was conducted along lines regarded by the law officer at the first trial as objectionable — that is, that the warning as to rights under Article 31 was given by a person other than him who ultimately received the admission of guilt. Would the introduction of such a confession be barred at any future trial for the new offenses by the doctrine of res judicata? There is nothing in the majority opinion — or, for that matter, in the Manual itself — which suggests that the doctrine would be inapplicable. Yet it is clear that to apply the notion of res judicata within such a context would involve placing the accused under one rule of law concerning Article 31 and his fellow soldiers under an entirely different one. Such a result would indeed signify conflict with that uniformity demanded by the Uniform Code, of Military Justice — to say the very least. Moreover, it would tend to contravene the precedents of Federal courts in the area of res judicata. See Commissioner v. Sunnen, 333 US 591, 92 L ed 898, 68 S Ct 715; United States v. Stone & Downer Co., 274 US 225, 71 L ed 1013, 47 S Ct 616.
IV
In light of what has been said, I must conclude that there are at least some limitations on the prospective applicability of the ruling made by the law officer at the first trial — although the majority fails to tell us anything about them. The nature of these limitations I shall seek to deduce from Federal precedents — a technique I feel to be fully justified by the background of the Manual’s provision concerning the doctrine of res judicata.
So far as I can tell, a holding concerning the law — or even the application of the law to the facts — is not binding in a subsequent action which involves parallel facts, albeit a “different historical transaction.” See, e.g., Developments — Res Judicata, 65 Harv L Rev 818, 843; Restatement, Judgments § 70, Comment (e) (1942) ; Scott, Collateral Estoppel by Judgment, 56 Harv L Rev 1, 10 (1942); Murphy v. United States, 78 F Supp 236 (SD Cal); Sonken-Galamba Corp. v. Atchison, T. & S. F. Ry. Co., 28 F Supp 456 (WD Mo). Commissioner v. Sunnen, supra, illustrates that a “different historical transaction” may be presented, although a single basic document is involved. In that case the treatment for tax purposes of royalties obtained under a contract made in 1928 had been litigated for the tax years 1929-1931. Subsequent litigation occurred concerning the tax treatment of royalties received during 1937 under the same contract. By that time, however, judicial decisions had made clear that the initial decision was entirely erroneous in its legal premises. The Supreme Court refused to apply res judicata to the second case.
Admittedly the Sunnen case can be distinguished from the instant problem in several respects. However, it does serve to make clear that a party to litigation is not entitled to perpetual advantage from an error of law — even when but a single document and similar evidence are involved. Other Federal cases demonstrate the existence of a judicial intention to avoid giving excessive effect to a ruling which may be little more “than a procedural step in a particular case.” Cf. United States v. Wallace & Tiernan Co., 336 US 793, 93 L ed 1042, 69 S Ct 824; The Evergreens v. Nunan, 141 F2d 927 (CA2d Cir), cert den 323 US 720, 89 L ed 579, 65 S Ct 49. As for the Federal cases relied on by the majority, it should be pointed out that the opinion rendered in United States v. Carlisi, 32 F Supp 479 (ED NY), reveals that the application there of res judicata did not involve the perpetuation of an error of law. Moreover, only a single basic transaction seems to have been at stake in the two trials. In United States v. De Angelo, 138 F2d 466 (CA 3d Cir), it was quite clear that res judicata was being applied only in connection with a determination of fact made by a jury at the first trial. There too, incidentally, each hearing involved the same transaction — the accused having been tried in one instance for conspiracy to *378rob and in the other for the robbery itself.
It is widely recognized that what is in essence a single criminal transaction may give rise to the commission of several offenses by an accused. For each such offense he may under the law be separately convicted and punished. United States v. McVey, 4 USCMA 167, 15 CMR 167; United States v. Beene, 4 USCMA 177, 15 CMR 177. And trial for one such offense does not create double jeopardy if he is tried later for another stemming from the same transaction. This circumstance offers the obvious possibility of harassing prosecutions. Thus, it is only just to apply res judicata even as to matters of law which are ruled on during the trial of an accused for another offense stemming from the same criminal transaction. Such protection would be accorded him under my application of res judicata. And such protection is, I believe, all that was intended by the Manual for Courts-Martial — which, on this point I am sure, was following general Federal law.
I genuinely doubt that the draftsmen of the Manual meant to offer the accused a greater immunity — and to estop the Government from relitigating rulings of law — when he is later tried for a different offense committed at an entirely different time. The policy against extending this immunity to the present accused seems especially strong for the reason that in the field of criminal law— unlike other areas — mutuality of estop-pel does not exist; and since — unlike an accused — the Government obtains no opportunity through appeal to obtain correction of flagrant errors of law.
I would affirm the board of review.