(dissenting):
I dissent.
Because the principal opinion so scantily touches on the facts of this case, I prefer to make a more complete recitation. The chronology of events shown in the record establishes that appellant was arrested by civilian police on January 12, 1952, for having committed an act of sodomy. He was released on bond and permitted to return to his post of duty. A pretrial investigation was held by naval authorities which resulted in a recommendation, dated February 11, 1952, that appellant *599be tried by general court-martial. On February 19, 1952, the convening authority referred the case to a general court-martial for trial. Thereafter, appellant was tried by the State of California for the offense and on April 4, 1952, he was acquitted. On May 5, 1952, after learning that his general court-martial case had been set for trial on May 15, 1952, the accused addressed a communication through channels to the Secretary of the Navy requesting the latter to intervene in his behalf. The reason for the request was that counsel for the accused, knowing that double jeopardy was not available as a legal defense, cherished a hope that the Secretary of the Navy might be more generous than the law and order the proceedings stayed. The letter was received by the convening authority on May 15, 1952, and forwarded with an adverse recommendation.
The general court-martial convened on May 21, 1952, and during his arraignment accused moved that the charge be dismissed on two grounds: first, double jeopardy, and, second, that it was contrary to the policy of the Navy to try a man for the same offense for which he had been previously tried by civilian agencies. The law officer denied the motion, whereupon the defense counsel countered with a motion for a continuance based on the reason that the accused had addressed a letter to the Secretary of the Navy requesting his assistance in disposing of the litigation favorably to the accused, and a reply thereto had not been received. In making this motion, defense counsel made it certain that the accused was not seeking relief because he needed additional time to prepare for trial. This is understandable in view of the fact that some fifty-five days’ delay were at his request. The sole predicate for the motion was that accused was entitled to delay the trial until he had received a ruling from the Secretary of the Navy on his claim of double jeopardy. The law officer heard arguments on the motion, but he did not rule thereon. He merely informed the president of the court-martial that he thought an adjournment sine die would be proper and he so recommended. The president of the court followed the recommendation and entered an order to that effect. The court met again on May 26, 1952, because of having received a communication from the convening authority in which it was stated that the ruling of the law officer on the motion was-an abuse of discretion. The letter contained a direction to proceed with trial unless other valid reasons existed for a continuance.
There are some facts which, if emphasized, will bring the issue into bold relief. The motion for a continuance was made on May 21, 1952. At that time the Navy had a policy regarding trial by court-martial of persons previously tried by civilian courts for the same act. That policy is referred to in 5 CMO (1945) 203, and in substance it was that a person in the naval service who had been tried in a state court, convicted and punished, should not be tried by a court-martial for the same act. It is to be noted that this policy applied only when the accused had been convicted and punished and, in this instance, he escaped both. Another Department of the Navy policy of some importance to this case is one which declared that persons with homosexual tendencies should be eliminated from the naval service. On March 5, 1953, some ten months after the trial of this case, the Navy Department modified the first mentioned policy rule by providing that a person in the naval service, who had been tried in a state court, and either convicted or acquitted, should not be tried by court-martial for the same act except in unusual cases where trial was considered essential in the interests of justice, discipline,, and proper administration. The unusual cases were to be referred to the Secretary of the Navy for determination. Accordingly, it is to be observed that, at the time the motion was made, there was no basis in law or in policy for not trying this accused. On the contrary, in this class of offenses the policy was either to discharge administratively or try the offenders.
It seems to me that the fundamental issue in this case is one of procedure *600which is controlled by both the Code and the Manual. Judge Brosman, in order to reach the claimed error, falls back on the chimerical doctrine of general prejudice, while the Chief Judge relies on specific prejudice. I hope to answer both; but to place the case in its true perspective, it is only necessary that we ascertain whether the means by which the conviction was reached meet the standards of fairness prescribed by military law. The mere fact that the accused was found not guilty in a civilian court does not require favorable treatment in a military court particularly where, as here, the facts overwhelmingly establish the offense.
I shall first answer the Chief Judge’s contention on specific prejudice. He makes two assumptions which I believe to be unwarranted. The first deals with the Navy policy which provides that naval personnel will not be released to state officials for trial in a state court without specific authorization from the Secretary of the Navy. From this policy requirement, he reasons that the convening authority acted in accordance with the declaration and released the accused to California authorities. I sense he mentions that policy to suggest the convening authority had the first opportunity to proceed with the litigation, and he forfeited the right of the Government to proceed with trial by releasing the accused to the civilian authorities. Even were I to assume there was some merit in that proposal, I cannot overlook an important part of the record which shows the accused was arrested by civilian police and retained in-civilian custody. I quote from the first part of his letter which he offered in evidence:
“On 12 January 1952, I was arrested in the city of San Diego by San Diego Police Officers and accused of committing an act of sex perversion. Because I was on authorized liberty from the U. S. Fleet Training Group and Underway Training Element, San Diego, and further because I was the only Naval Personnel involved in the alleged incident — the other accused party and the witnesses were civilian — it was apparent from the onset that the local civil authorities would exercise jurisdiction on this charge. When I was released from civil restraint on 14 January 1952 after posting $1,000 bail and returned to my duty station, I was surprised to discover that my command in behalf of the Government was preparing an investigation of the same charge with a view to try me by General Court-Martial.”
The accused testified he was confined by military authorities and that on only two occasions was he allowed to leave his restricted area. The first time was to permit him to be present at the preliminary hearing and on the second occasion he attended his trial in the state court. That is a far cry from releasing him to civilian authorities. It appears to me the civilians acquired control and retained it. To allow an accused to appear, and thereby prevent his bond from being forfeited, would not require authorization by the Secretary of the Navy.
The second erroneous assumption is that the naval policy declaration which was limited to guilty verdicts or pleas could be extended ex post facto to cover cases in which the accused was found not guilty. This policy, which is seized upon to assist the accused, was not adopted until some ten months after this trial, and I am certain neither the law officer nor the convening authority can be credited with knowledge of its subsequent adoption. There is a substantial difference in the two declarations, and I know of no way in which the accused can claim error because the benefits of the later one were not conferred on him. The former bars double punishment only, while the latter stays a second trial except in unusual cases; parenthetically, I might add this appears to be one of that type. Stated succinctly, the rationale of the Chief Judge’s opinion is supported by a mistaken belief that the accused was prejudiced by the denial of a substantial right. I ask: At the time which concerns this case, what right was denied him? The answer in the principal opinion is the right to correspond with the Secretary of the Navy and receive *601a reply before the Government can prosecute, when no policy nor legal privilege is being abridged. Under that concept, the law officer would have erred in denying the motion for a continuance as he could not have ordered the trial to proceed until the Secretary of the Navy had replied without denying the accused the same right. If that is a privilge which runs to this accused, then any person in the military service cannot be brought to trial until he has been afforded the opportunity of writing to, and receiving an answer from, the appropriate Secretary of the Department. I can discard frivolous requests and yet make a reasonable assumption that, in the future, the channels of communication will bog down with solicitations for prevention from prosecutions.
Before presenting my objections to the application of general prejudice, a doctrine which I am forced to accept as the law of this Court, I believe a few general observations are apropos. We have likened the law officer in the military to a judge in the civilian system. I believe that proper when it is possible to equate them and have the military system operate with efficiency and dispatch. In this particular instance, bearing in mind the powers granted the convening authority, I am willing they should be likened, as I know of no trial judge who is not subject to some supervision and control by a superior court. He can be prohibited from issuing orders which are in excess of his authority, and he can be compelled to perform acts which he is required by law to execute. If he abuses his discretion in making a particular ruling, then the higher court can reverse the ruling or direct that he do so. As an abstract proposition, I fail to see why those principles tailored to meet the exigencies of the service, cannot be applied in the military and, as I will later argue, Congress decreed their application. The convening authority has more powers than an appellate court, and good legal management requires that he exercise some supeiwision and control over the administration of the court-martial. His should not be a one-sided function. Primarily he should protect the rights of the accused; but the orderly and proper administration of military justice requires that the accuser’s rights be likewise guarded. In this connection I can do no better than refer to the words of wisdom spoken by Mr. Justice Cardozo in Snyder v. Massachusetts, 291 US 97, 122, 78 L ed 674, 686, 54 S Ct 330: “But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
I have long believed that each party to a law suit is entitled to a fair and speedy trial, and this is particularly desirable in the military system. Civilian courts are continually condemned for their delay in disposing of criminal litigation, and I regret to see delaying tactics creep into the military system. Obviously one accused of a crime should be given ample time and opportunity to prepare his defense, but that does not concern us here. Particularly is expeditious processing of criminal cases necessary in the armed forces to maintain discipline and morale. One need have little foresight to know that if the saying “justice delayed is-justice defeated” can be applied truly to the military system, it too will be condemned. Why then should a contumacious law officer who, assuming arguen-do, refuses improperly to permit a case to be tried, be untouchable? Is there no military court or other authority who can compel him to proceed? If not, then the Uniform Code of Military Justice is woefully inadequate. Unfortunately by this decision it is, as the authority who is responsible for the administration of law enforcement in his command has been denied the right to control the affairs of the court-martial he appoints. Perhaps my associates would say he has the right, but it must be exercised by removing the law officer or appointing a new court. As for me, I would shy away from that concept because that method is infested with the very vice we seek to prevent.
Historically, the convening authority has been a very important person in the military court-martial system. Over the years there has been a diminution of those powers; but to let him partici*602pate to the extent of controlling some of the administrative matters of the court-martial does not offend against any principle of justice so rooted in the traditions and conscience of the people as to be ranked as fundamental. I have the present Code to support me in that statement. A convening authority is given the power to determine severity of the crime for which the accused must stand trial; he determines the class of court-martial that will hear the case; he can, by his order, render a capital case noncapital; he appoints individual members of the court-martial; he designates the law officer; he appoints trial and defense counsel; he may withdraw specification; and he may terminate the trial for military necessities and order it tried at a subsequent time. With all of those powers at his command, the risk of prejudice by command control, exercised assertedly through overruling a law officer on a motion, is indeed shadowy. More summary and effective means are available to a convening authority if he is disposed to interfere with a court-martial, but I much prefer not to force their use. My preference is to encourage an orderly procedure which requires the officer to place on record his reasons for intervention.
While I- have dealt in the abstract with the powers of the convening authority, I will narrow my discussion to those exercised in this particular case. We can set aside accused’s contention of double jeopardy as the law and the Manual are contrary to his assertion. The sole issue then is the right of the convening authority to reverse a ruling of a law officer on a motion for a continuance, unsubstantiated by law, policy, or lack of readiness or preparation for trial. A reading of the Code and the Manual convinces me that he has been vested with that authority, and while I could quote one subparagraph from the latter to support my conclusion, I prefer.to develop my reasons in some detail.
The Code provides that a court-martial may, for reasonable cause, grant a continuance to any party. It also provides that the law officer rules finally upon interlocutory questions, and a motion for a continuance falls in that category. The Manual for Courts-Martial, United States, 1951, so interprets the Code provisions, as it states the law officer rules with finality on a motion for a continuance made while the court is in session. The finality of his ruling, however, is intended to bind only the members of the court-martial and not the subsequent reviewing authorities. The purpose for fixing responsibility is to prevent divided authority during the trial and preclude the members of the court-martial from reversing the ruling of the law officer. Because of administrative matters involved in the continuance, the Manual suggests the law officer consult with the president of the court. While the law officer abdicated his right in this instance and permitted the president of the court to make the ruling, that fact is of little significance to the immediate question. It is, however, important to note that the convening authority rules on the application when the court is not in session and, if the continuance is for an extended period, the cause may be referred to him for decision. The reason for the latter provision is that there are many other administrative details interwoven with a lengthy delay. A decision on discharging the court, dismissing the specifications, reducing the charges, or taking other action which is beyond the powers of the law officer or the court-martial, may be necessary. I mention these possibilities to point out that the Manual acknowledges the superior position occupied by the convening authority in dealing with some of the problems posed by granting a prolonged or uncertain continuance.
I am at a loss to understand why the convening authority’s act in this case so severely shocks my associates. The new Code did not strike down all previous military judicial concepts and principles. The Code, in at least one place, recognizes the right of the convening authority to overturn the ruling of a law officer. Article 62(a), 50 USC § 649, provides as follows:
“If a specification before a court-martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to *603the court for reconsideration of the ruling and any further appropriate action.”
If Congress permitted intervention in one area, then the President, when he authorized the same powers in other areas, was not enacting rules and regulations contrary to the Code or in violation of some inalienable right of an accused person. He was doing precisely what Congress directed him to do. At this point it might be well to consider the convening authority’s powers in insanity proceedings. We have already placed our stamp of approval on his authority in that area. Paragraph 120c, Manual for Courts-Martial, United States, 1951, provides that no person' shall be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense. I turn to paragraph 1226 of the Manual in an endeavor to prove that the ruling of the law officer is not inviolable. That paragraph provides as follows:
“If the issue of insanity is raised as an interlocutory question and the court finds the accused sane, the defense is not precluded by this finding from offering further evidence on the issue of insanity and, when all the evidence in the case has been received, the court may proceed to its findings on the guilt or innocence of the accused. In consideration of its findings upon the general issue, if the court entertains a reasonable doubt that the accused was mentally responsible for his acts, it will enter findings of not guilty as to the proper charges and specifications (1206).
“If the convening authority disagrees with the court in its finding that the accused lacks requisite mental capacity at the time of trial (120c), or if the convening authority determines that the disability was temporary and that the accused has recovered his mental capacity, he may return the case to the court with instructions to reconsider its findings and, if appropriate, to proceed with the trial.”
In the two above-quoted provisions we have respectable authority, binding on us, which demolishes the argument that when a convening authority disagrees with the court or law officer, it is such a vice that we can close our eyes to prejudice and figuratively toss a conviction out the window. Again, the President prescribed many other important areas in which a convening authority could review and reverse the ruling of a law officer. Paragraph 67/ of the Manual, which is of particular moment in the instant case, is one which my associates entirely misinterpret. If language of that paragraph means what it states unequivocally, then a convening authority has the right to overturn the ruling of the law officer on any motion, or his decision on a matter of administration, which does not amount to a finding of not guilty. That paragraph should remove any lingering doubts as to the power of this convening authority to follow the course he pursued. It provides:
“. . . But when the trial cannot proceed further as the result of the action of the court on a motion raising a defense or objection, the court will adjourn and submit the record of its proceedings so far as had to the convening authority.
“The convening authority may not return to the court for reconsideration a ruling of the court which amounts to a finding of not guilty, such as the granting of a motion to dismiss because of lack of mental responsibility at the time of the offense (1206), or the granting of a motion for a finding of not guilty (71a.; Art. 62). As to motions granted by the court which do not amount to a finding of not guilty, the convening authority may, if he disagrees, return the record of trial to the court with a statement of his reasons for disagreeing and with instructions to reconvene and reconsider its ruling with respect to the matters as to which he is not in accord with the court (Art. 62a). To the extent that the court and the convening authority differ as to a question which is solely one of law, such as whether the charges allege an offense cognizable by a court-martial, the court will ac*604cede to the views of the convening authority; but if the matters as to which the convening authority disagrees are issues of fact, such as those which may be presented on an objection to trial on the ground that the accused lacks the requisite mental capacity at the time of trial (120c), the court will exercise its sound discretion in reconsidering the motion. The order returning the record should include an appropriate direction with respect to proceeding with the trial or any further appropriate action (Art. 62a.).” [Emphasis supplied.]
One might entertain the view that the convening authority should be stripped of the power he has historically possessed, but that is a matter of policy which has been determined by Congress and the President. Certainly, in the face of the foregoing provision, this Court is in no position to deprive him of his authority by judicial legislation.
My associates counter the foregoing argument by contending that paragraph 67/ of the Manual is inapplicable. The Chief Judge bases his views of their inapplicability upon his opposition to a piecemeal appeal. I have already pointed out several instances where that type of appeal is authorized. The concurring Judge supports his conclusions on that and the additional grounds that continuances are covered in a different paragraph and chapter of the Manual. Without belaboring the latter point, Chapter XII, which is entitled “Pleas and Motions” includes paragraphs 67 and 69. Subsection e of paragraph 69 recognizes continuances as being encompassed within that Chapter and it states:
“Miscellaneous motions for relief. —In addition to grounds for motions discussed above in this paragraph (69), there are others which may be made for the purpose of raising a specific objection on the merits prior to trial of the general issue. For examples, see 121 and 122 (Insanity). If a motion amounts in substance to an application for a continuance, or to a challenge, motion to dismiss, or other matter for which a procedure is provided, the motion will be regarded as such application, challenge, motion to dismiss, or other matter. A motion to elect — that is, a motion that the prosecution be required to elect upon which of two or more charges or specifications it will proceed — will not be granted.”
The assertions to the effect that my interpretation of the Manual provisions possibly clashes head-on with the provision of the Code which states that the law officer rules finally on interlocutory questions is not sound. Both parties are entitled to make a motion for a continuance, and I think we can illustrate the point by hypothetical eases. Supposing the law officer improperly grants a continuance for the Government to the prejudice of an accused, is the ruling of such finality that the convening authority cannot reverse? Again, supposing the law officer refuses a defense request for a continuance which should have been granted, is the finality of that order such that the convening authority is powerless to correct the error ? If so, then I fail to understand our rulings in United States v. Nichols, 2 USCMA 27, 6 CMR 27; United States v. Plummer, 1 USCMA 373, 3 CMR 107; United States v. Sizemore, 2 USCMA 672, 10 CMR 70; and the provisions of the Manual. The latter states that although the question of continuance is one for the sound discretion of the court, whenever it appears that the court has abused its discretion and denied the accused a reasonable opportunity to perfect his defense the proceeding should be disapproved. If the wording of the Code, which states that the ruling of the law officer on interlocutory matters is final, applies to any forum or reviewing agency other than the court-martial itself, then our previous decisions are incorrect. If, on the other hand, it amounts to no more than a ruling by the court, then it is subject to review by the convening authority. The Code only makes the ruling binding on the court-martial as it provides the ruling of a law officer on an interlocutory matter shall constitute the ruling of the court.
The truth of the matter is that neither of my associates can dispute the power of the convening authority to correct an erroneous ruling against an ac*605cused. I am certain that if he were to interfere before findings to protect the interest of one on trial, they would not hold he had abused his discretion, and the argument that it was piecemeal would be dismissed summarily. The focal point, and the one upon which we cross swords, is whether he has any authority to protect the interest of the armed services. My views are that the prosecution has some rights in the military judicial system and a convening authority has some obligation to see that it is treated justly.
The Chief Judge seems inclined to the view that a convening authority may have some power to take corrective action, but that he can only interfere when the case reaches him on final review. That argument is a combination of sophistry and futility. The case on final review can only reach the convening authority after findings and sentence, if the latter is imposed. After the court-martial returns a finding of not guilty, the only reviewable issue is jurisdiction and an erroneous ruling for or against either party cannot be reached. If a finding of guilty is returned, can the prosecution complain about an adverse ruling? The answer is obvious, and the Government is left without recourse. Accordingly, my conclusion is that, under the ruling as announced, the convening authority is denied the right to correct any injustice if the Government is the loser. That denial may be of more importance when transplanted into special court-martial cases which are controlled by presidents not normally trained in the law.
The concurring Judge announces a familiar rule when he discusses writs of mandate. They are extraordinary writs and are used sparingly in the civilian sphere, but even there the appellate body determines the necessity for the issuance. However, the military judicial system is faced with different problems from those in the civilian system and summary action is more important. In our scheme of appeal, special writs are unknown; but a convening authority, up until the present holding, has had the right to direct that cases be tried with dispatch. He is the administrator of the courts in his command and he should be unfettered in his administration so long as he does not attempt to influence the findings or the sentence. Historically he has always enjoyed that power, and I find nothing in the present Code which can be reasonably interpreted to strip him of his authority. On the contrary, the legislative history convinces me Congress refused to divest him of the power my associates now contend he does not possess. Furthermore, if it be conceded he has the power to interfere in an unusual case, then it would appear to me we should measure his participation by the test of whether this is that type of case and not by a blind denial that he has no right to intervene.
The majority of the Court leave open a decision on the correctness of the ruling of the convening authority. My views require an answer to that question. Obviously, had the accused made any reasonable showing justifying continuance, then the ruling of the convening authority might have been erroneous. While, as I contend, the Manual permits the convening authority the right to review any adverse ruling of the law officer, we have the power and duty to test the legality of his rulings. In United States v. Padilla, 1 USCMA 603, 5 CMR 31, we reviewed the decision of a convening authority when he improperly granted a rehearing on a jurisdictional issue. We search the entire record for errors of law and if any are committed by the various reviewing authorities, then we can apply corrective measures. Here, the record requires that I sustain the action of the convening authority.
I can find no logic, reason, evidence, or basis for the ruling of the law officer. There was no regula- tion nor policy pronouncement which authorized the accused to escape trial. He was prepared to go forward with his defense, albeit he desired to avoid prosecution; but he assigned no valid or legal reason. He was not denied an opportunity to develop and present his evidence; further time would not have strengthened his defense; and the Government gained no evidentiary advantage. Mere hope *606that some higher authority will exercise his power to stay proceedings does not in law amount to reasonable cause. Abuse of discretion as used in the law implies neither incompetence, bad faith, misconduct, nor any reflection on the law officer. It means no more than that he arrived at an erroneous conclusion and judgment which is clearly against the logic, effect, and reasonable inferences of the facts presented in support of the matter presented. The problem of ascertaining when a ruling falls in that territory is not without difficulty; but in this instance the motion cannot be defended upon any ground except the bare possibility that the Secretary of the Navy m’ght stay the proceedings. Whether he has ever acted for or against the accused is not reflected by this record; but, at most, the accused staked his showing on an imaginary result. The Code authorizes a continuance only when reasonable cause therefor has been shown, and I find this record fails to show that that standard has been attained. I, therefore, conclude the law officer abused his discretion.
One other assertion advanced by appellate defense counsel bears brief mention. It is contended that because the court-martial members were apprised of the comment by the convening authority to the effect that the law officer had abused his discretion, he, the judge in the military system, was discredited. This does not follow and the record bears evidence to the contrary. It must be remembered that the president, acting for the court-martial, not the law officer, made the decision. The reasons for recommending the continuance were developed for the benefit, of the court-martial, and it requires a vivid imagination to conjure up a belittlement of the law officer by court members who concurred with him. Moreover, he was courageous enough to rule with the accused on many occasions; his rulings were fair and just; and counsel has not called attention to any trial incident which suggests remotely that he was in disrepute .with the court-martial members because of his prior ruling. Furthermore, the instructions were complete and the rights of the accused protected. The court deliberated for an hour and twenty-five minutes, and appellate counsel’s argument that the members of the court-martial were influenced in believing the law officer did not have proper knowledge of the law is forcefully answered by the record of trial. It does not reflect discredit on the law officer, and his performance before the court-martial would overcome any claimed innuendo flowing from the communication. If the phrase “abuse of discretion” connotes incompetency, then this Court, and many others, have been impugning unjustly the qualifications of other tribunals and officers. Prejudice to this accused from that source is imaginary and not real.
Lastly, I cannot accept the speculative view that legal slips, if any, made by the law officer in the trial of this case might possibly have been caused by the letter from the convening authority. I am firm in my convictions that once the actual trial began, his rulings were controlled entirely by his knowledge of the law and that the claimed command influence is visionary and not present in this record. Assuming that some of his rulings might have been erroneous, we could not find any of sufficient prejudicial effect to be made the basis for argument on appeal.