(concurring in the result) :
I fully agree with the result reached by Chief Judge Quinn in this case. However, I prefer to bottom my vote for reversal on the notion that general prejudice enters the picture when a convening authority interferes — as he did here —with the law officer’s ruling on a continuance.
II
The dissenting judge has relied heavily on paragraph 67/ of the Manual for Courts-Martial in determining the issues here. The principal opinion, it is true, does not treat in detail of this paragraph. However, I feel sure that this course was followed in the belief that its provisions are demonstrably inapplicable to the instant case. Certainly they are. This might be surmised from the fact that the Manual purports to deal with continuances in a wholly different paragraph and chapter. See paragraph 58. Moreover, the Manual speaks not of a motion for continuance, but solely of an application therefor. Ibid. This circumstance suggests that Judge Latimer can gain but modest comfort from what is said of the effect of rulings on motions in paragraph 67/. Also, I note that in paragraph 67g the Manual states that certain matters “are not proper subjects for motion prior to plea, however much they may constitute ground for a continuance.” This statement makes clear beyond peradventure that, in dealing with the convening authority’s power to obtain reconsideration of a court’s ruling on a motion, the Manual’s draftsmen had no purpose to deprive the law officer of his power to make the final determination as to continuances. Accordingly, I feel no sort of necessity to inquire whether —had the Manual taken Judge Lati-*594mer’s position — conflict would have existed with the following mandate of the Code: “The law officer of a general court-martial . . . shall rule upon interlocutory questions, other than challenge, arising during the proceedings. Any such ruling made by the law officer of a general court-martial upon any interlocutory question other than a motion for a finding of not guilty, or the question of accused’s sanity, shall be final.” Article 51(6) of the Code, 50 USC § 626. (Emphasis supplied.)
The Manual provides additionally that the “law officer rules finally on any application for a continu- anee presented while the court is in session.” (Emphasis supplied.) Paragraph 58b, supra. There is no doubt that the law officer’s determination of the desirability of a continuance in the case at bar was made while the court-martial was in session ■— yet somehow the dissenting judge concludes that the word “finally” does not in any way foreclose the convening authority’s intervention for the purpose of directing the law officer to proceed with the trial. I see no foundation in the wording of either Code or Manual for this interpretation. Also, in paragraph 58e of the latter source it is remarked that an application for extended delay “may be referred ... to the convening authority.” “May” is normally taken to indicate mere permission. See United States v. Merritt, 1 USCMA 56, 1 CMR 56. Thus, its use connotes ■that the court-martial — through the law officer ■ — enjoys the election to. refer or to refrain from referring the matter to the convening authority. Here the law officer did not choose to refer — and thus he exercised the privilege granted him by the Manual. The convening authority deliberately overrode that choice — and thus, in my view, infringed the orderly procedure of courts-martial through the use of “command control,”, or something very like it.
Of course, the Manual provides that a continuance must be sought from the convening authority when the court is not in session. Paragraph 58e. I see nothing inconsistent' with my position in the circumstance that the expense and inconvenience of -reassembling a court-martial from adjournment may be avoided in this manner when grounds for a continuance are made manifest to the convening authority. If he grants the continuance, I doubt that complaint would be made. If, on the other hand, he denies it, a new application therefor may be made in open court. At that time- — in my understanding — the law officer is permitted to make an independent determination of the desirability of granting the application. Accordingly, under this procedure the accused is in no way deprived of his right to have the law officer rule finally on any request made by him for a continuance. In the case at bar the convening authority’s action completely destroyed that right.
Ill
Judge Latimer has emphasized that he knows of “no trial judge who is hot subject to some supervision and control by a superior court.” As he must also know, an appellate court, in the exercise of that supervision and control, does not as a usual thing review interlocutory rulings at the time of their rendition. See 28 USC §§ 1291,1292; Bankers Life & Casualty Co. v. Holland, 346 US 379, 98 L ed —, 74 S Ct 145; Roche v. Evaporated Milk Ass’n, 319 US 21, 30, 87 L ed 1185, 1193, 63 S Ct 938; Cobbledick v. United States, 309 US 323, 84 L ed 783, 60 S Ct 540; American Construction Co. v. Jacksonville, T. & K. R. Co. 148 US 372, 37 L ed 486, 13 S. Ct 758; Georgia Ry. & Power Co. v. Decatur, 262 US 432, 67 L ed 1065, 43 S Ct 613; 2 Am Jur, Appeal and Error §§ 21-27. So far as I can determine, action on an application for a continuance is generally viewed as interlocutory in character. Cf. Bedgisoff v. Cushman, 12 F2d 667 (CA9th Cir). Thus, -in the civilian scene the ruling on such a request could not in most instances be the subject of appellate consideration until the termination of the case. Thus too, the “superior court,” of which the dissenting judge speaks, would not at all be in the position of considering the question' of the grant of a continuance at the stage of the pro*595.ceedings at which the convening authority intervened here.
Perhaps the issuance of a writ of mandamus by an appellate tribunal would constitute the closest civilian analogy to the convening authority’s action here. Indeed, there have been instances in which mandamus was issued for the purpose of compelling a court to proceed with the trial of a case following the grant of a continuance. For example, after a continuance of almost four years’ duration, a Circuit Court of Appeals granted a writ to compel the District Court to proceed to trial. Bedgisoff v. Cushman, supra. The continuance there — interestingly enough — had been granted by the District Judge in 1921 to run until such time as the United States should recognize the Russian Government — an event well within the unpredictable and uncontrollable future. More applicable here than that precedent, however, are the numerous decisions denying mandamus sought for the purpose of reviewing interlocutory rulings. The Supreme Court — since the days of Marshall — has deemed such action to be inappropriate, and has thought that it would lead to premature decisions, and “would subvert our whole system of jurisprudence.” See American Construction Co. v. Jacksonville, T. & K. R. Co., supra. Such a writ may not be resorted to for the purpose of controlling minor orders made in the conduct of judicial proceedings —and the circumstance that the results of litigation may possibly render the interlocutory proceeding valueless does not serve to justify the exercise of this prerogative power. Ex parte Wagner, 249 US 465, 63 L ed 709, 39 S Ct 317. Being extraordinary remedies, writs of mandamus “are reserved for really extraordinary causes.” Ex parte Fahey, 332 US 258, 91 L ed 2041, 67 S Ct 1558. The possible inconvenience of proceeding to an unnecessary trial does not justify the use of mandamus. Gulf Research & Development Co. v. Harrison, 185 F2d 457 (CA9th Cir).
To me, the intervention of the convening authority here seems fully as extraordinary in nature as the issuance of a writ of mandamus — to which it is so closely analogous. If the civilian precedents mean anything, they signify that appellate intervention of such a nature is not justified — this despite the fact that the law officer may have erred palpably in his ruling. It may be argued that the present law officer’s grant of continuance was, in reality, a final disposition of the case, since in his language he purported to adjourn the court sine die. However, I should say that in our analysis of the effect of his action, we must penetrate form to reach substance. See, e.g., Baltimore & O. R. Co. v. United Fuel Gas Co., 151 F2d 545 (CA4th Cir). On doing so, it is to be perceived at once that the continuance was intended to cover only such a period as would be required to obtain a response from the Secretary of the Navy to the letter addressed by the accused to him. The indefiniteness of time involved in obtaining such an answer is scarcely on a par with that contemplated in the grant of a continuance until such time as the United States should recognize the Russian Government — there being at the time of the grant no indication that recognition would ever occur. See Bedgisoff v. Cushman, supra.
Indeed, I find no reason for supposing that it should have taken more than a few days to obtain an indication of the views of the Secretary — especially had the convening authority, the Commandant of a Naval District, been willing to devote to the task of securing a reply a zeal equal to that displayed in ordering renewal of the trial. After all— as Naval directives make clear — in military justice affairs no insurmountable barrier separates the Secretary of the Navy and his Judge Advocate General from the “field.” See, e.g., Chapter VII, Naval Supplement to the Manual for Courts-Martial, United States, 1951, especially paragraphs 0701, 2, 5, 7, 8. The Secretary was part of the same Armed Force and legal system as were the members of the court-martial, and presumably he possessed an interest equal to theirs — and to that of the convening authority — in speeding the disposition of the accused’s case. No possibility of hardship to the Government is visible in the grant of the continuance here — a possibility which, had it exist*596ed, might supply the “extraordinary” circumstances on which a writ of mandamus must be predicated. Prosecution witnesses were for the most part policemen residing in San Diego, California, where the case was tried — and there was no indication that any of them were planning a departure from the State and would thus be unavailable for later appearance.
Search as I will, I find literally nothing in the civilian legal area to sustain the position of the dissent. Nor can I possibly see why “piecemeal appeals” should be favored in military tribunals when frowned on — even scowled at — by civilian courts. Cobbledick v. United States, supra; City of Morgantown v. Royal Insurance Co., 337 US 254, 93 L ed 1347, 69 S Ct 1067; Kuhn v. Canteen Food Service, 150 F2d 55 (CA7th Cir); Lewis v. E. I. Du Pont De Nemours & Co. 183 F2d 29 (CA5th Cir). Moreover, I can recognize without difficulty the applicability to the present situation of the Supreme Court’s point that writs of mandamus should be granted with extreme caution because “they have the unfortunate consequence of making the judge a litigant.” Ex parte Fahey, supra. Here similarly, the law officer — the “judge” of the court-martial — was placed on the defensive by the convening authority, and thus became to some extent personally involved in the litigation.
It is undoubtedly true that in the military legal system there is greater possibility of injury to one side or the other, arising from the grant of protracted continuances, than is likely in civilian law administration — since both court members and prospective witnesses may become unavailable after a brief lapse of time either through transfer or because of death in combat. When such risks of unavailability are fairly presented, there might well exist those “extraordinary” circumstances which— in line with civilian precedents concerning writs of mandamus — would serve to justify a convening authority in overruling the grant of a continuance by a law officer, to the extent, of course, that the grant involved a clear abuse of discretion. However, it cannot be denied that the military system also presents unique dangers arising from an improper intervention by the convening authority in the grant of a continuance.
It was doubtless with an eye to those dangers that defense counsel here moved for a “mistrial” after the convening authority’s letter was read to the court-martial. He insisted then that the law officer had been “reprimanded” in violation of Article 37 of the Uniform Code, 50 USC § 612. Under all of the circumstances, I would not be willing to term the convening authority’s letter a reprimand, or even a censure, within the meaning of the Code. However, I am not sure that I could not find an attempt on his part by “unauthorized means” to “influence the action” of a court-martial, in violation of that same Article. To my mind, the Congressional mandate against “command influence” is so significant and compelling as to demand reversal, even though the “action” here “influenced” —or, better said, directed — related to no more than the granting of a continuance.
Moreover, the intervention of the convening authority in this case distinctly and improperly discredited the law officer in the eyes of the members of the court — for it connoted that the convening authority lacked confidence in the ability of an official he had appointed, and who had been certified as competent by The Judge Advocate General. Judge Latimer has pointed out that “Abuse of discretion as used in the law implies neither incompetence, bad faith, misconduct, nor any reflection on the law officer.” To this I must reply that the convening authority’s comment could scarcely have been considered a compliment — had it been expressed to lawyers only. However, the members of the court were presumably laymen. And who can say what overtones of depreciation the condemnation of the law officer’s “abuse of discretion” may have implied in their minds? I doubt that a civilian jury would have the opportunity to hear a like criticism by an appellate tribunal of a civilian judge during the course of a trial. I question, too, whether such treatment of the law officer in the presence of members of *597the court, his “jury,” squares with the Congressional intent to erect in the person of the law officer an official as similar as possible to the civilian judge— not only in function, but presumably also with respect to dignity and stature in the court’s eyes.
Further, it is evident that Congress wished to free court members from preoccupations with the wishes or beliefs of the commander who appointed the tribunal. Guilt or innocence is to be determined by their judgment, not his. Aside from the impression that the law officer here was an incompetent bungler whose views merited little attention, the members of the court may also have received the impression that the convening authority was actively interested in the outcome of the trial. Else why was he following it so closely — even to the point of scrutinizing the interlocutory rulings of the law officer? A court member might also reason that the principal result of delaying trial until arrival of the Secretary’s response would be to afford the accused better odds — since through it he might even avoid trial. The next inferential step would take the form of an interpretation that the convening authority wished to deprive the accused of that possible benefit by the direction of an immediate trial. And from this the conclusion might follow that the former desired to eliminate that possibility in order to facilitate conviction. Such inferences may — indeed, undoubtedly do —depart wholly from what the convening authority had in mind. This, however, is unimportant if his actions in connection with the trial might reasonably have operated to lead court members to infer either that he believed the accused guilty or desired that he be convicted.
It is difficult to measure the effect of such intangibles in the instant case. The evidence against the accused met more than minimum standards of sufficiency. Yet the court did not quickly bring in findings of guilty — presumably because of the accused’s sworn denial, his prior acquittal by a civilian jury, and the mass of character evidence in his favor. When, as here, the scales are not overbalanced in favor of guilt, the prejudicial effect of the convening authority’s action may be especially strong. But I do not feel impelled to go further in delineating the risk of specific harm — for I must apply general prejudice unhesitatingly in the area of “command influence.”
IY
The dissenting judge announces that he finds “no logic, reason, evidence or basis for the ruling of the law officer.” It is to be noted that an inquiry into the reasonableness of the action on the application for a continuance is not demanded under my analysis — for, in my view, even an egregious error by the law officer, without more, would not permit the convening authority’s intervention for the purpose of directing retraction of an interlocutory ruling. However, I cannot brand this law officer’s action as an abuse of discretion. Of course — as the dissent points out— it was not until after the time of the accused’s trial that the Secretary of the Navy directed explicitly against trial for the same offense following acquittal by a civilian court, in the absence of “permission from the Secretary of the Navy.” Nonetheless, I agree with the Chief Judge that the law officer here could quite reasonably have understood that Navy policy, as previously proclaimed, embraced the situation of the present accused.
The board of review — presumably well acquainted with Navy policy concerning the trial of personnel previously charged in state courts — asserted that “In an appropriate case this policy would be extended to include those acquitted in a civil court.” (Emphasis supplied.) This statement makes clear that, in the board’s eyes, the applicability of the policy was not limited to previous convictions by state tribunals.
True it is that the board did not think that the accused’s was an “appropriate case,” in light of the Navy’s policy regarding the discharge of homosexuals— and I cannot say that the Secretary of the Navy would not have taken a similar stand. It must not be overlooked, however, that the desire to dispose of *598homosexuals does not inevitably dictate their trial by court-martial — for, as is common knowledge, administrative discharges are often used to cleanse the services of these undesirables. But, even if he concluded that policy did seem to demand trial of the accused by court-martial, the law officer might reasonably have believed that there existed a policy conflict which the Secretary of the Navy should resolve. In view of the circumstance that securing a reply from the Secretary need have taken but a short time, the abuse of discretion is even less clearly demonstrated. Thus, while I would have found no error had the law officer denied the continuance application, I cannot at all concur with the convening authority and the dissenting Judge in denominating his ruling an abuse of discretion.
Y
Certain remarks in the dissenting opinion demand specific rebuttal. For instance, the author comments that, if the law officer’s position had been left unaltered by the convening authority, “the channels of communication will bog down with solicitations for prevention from prosecutions.” It is to be observed that a similar argument was addressed by trial counsel to the law officer. The latter reasoned — more soundly than my brother, I believe — that the situation facing him was not the usual one, and might therefore, within the proper exercise of discretion, demand specialized treatment. I observe, too, that in its more recent policy directive, the Navy appears determined to “bog down” its channels, not with solicitations from accused persons, but rather with command communications to the Secretary requesting permission to prosecute sailors who have been either convicted or acquitted by state courts.
The dissent also protests that courts-martial, like civilian judicial agencies, will shortly be faced with “delay in disposing of criminal litigation.” I must concede that the expeditious handling of court-martial trials is especially important in the Armed Forces — and that Congress, too, has condemned “unnecessary delay” in military justice. Uniform Code, Article 98, 50 USC § 692. However,, it is inevitable that some of the safeguards now granted an accused by the Uniform Code — protections in most instances patterned on civilian practice — will occasionally result in less expedition than heretofore. Presumably Congress was aware of this circumstance — and it is now this Court’s duty to execute the legislature’s mandate — even if, as here, the result is a longer trial than a convening authority may desire. See Roche v. Evaporated Milk Ass’n, supra. Furthermore — and while speed is appropriate — both civilian and military tribunals have recognized the compelling need to avoid “the haste of the mob.” See Powell v. Alabama, 287 US 45, 77 L ed 158, 53 S Ct 55; United States v. Fletcher, 6 CMR 163.
VI
Certain procedural slips by the law officer and an abundance of zeal on the trial counsel’s part marked the instant trial. Perhaps its proceedings would have taken the same direction had the law officer and counsel not felt that the convening authority was looking down their very throats and measuring every word they spoke. But the unfortunate circumstance that the convening authority had previously and openly damned one of these functionaries as an abuser of discretion gives the conduct of the trial an especially unpleasant aroma. Viewing the record as a whole, I am fortified in my belief that the appearance of “command influence” is vivid enough here to require reversal.