(concurring in the result):
I concur in the result.
It is not necessary in this case that we determine the power of a law officer to declare a mistrial. We really need go no further than to determine whether a convening authority can withdraw charges and specifications from one court-martial and refer them to another. However, the matter has been reached by my associates, so it should be laid to rest. I, therefore, express my views on the subject
I
We have declared that in areas where there is no clash with the Code, the Manual, or long-established legal principles, the law officer in the military system has powers comparable to those of a judge in the civilian court. One of the law officer’s principal purposes is to control and direct trial proceedings along well-recognized legal paths within the framework of the Uniform Code of Military Justice. Particularly, is that true with respect to areas which involve rulings on questions of law. If an inflammatory circum- stance occurs during the course of a trial which is of sufficient importance to prejudicially affect the right of either party, and it cannot otherwise be corrected, the proceedings should be terminated. In civilian courts, a trial judge can determine the effect of an unexpected and improper incident, and if one occurs and he concludes that fairness and impartiality cannot be assured to either party, he has the authority to excuse the jury and retry the case before another panel. I find no Congressional expression which intimates that the same power does not vest in the law officer in the military judicial system. Either Congress clothed him with the authority to do so or courts-martial must seek outside help to carry on their ordinary functions. In order to avoid that and to insure an orderly and efficient administration of justice, the right to keep the proceedings free from error should, in the first instance, be lodged with the court-martial. Under that view the granting of a mistrial and then a retrying of the case requires the joint actions of the law officer and the convening authority, but that obstacle is not insurmountable. Conceding it requires cooperation on the part of two officials, that is an administrative detail which must be faced if the Code permits no construction other than that the military counterpart of the civilian judge can terminate the proceeding, when in his opinion a fair trial cannot be had for either party. That Congress empowered the law officer to discontinue a trial for obvious prejudice seems implicit in the wording of Article 51(6) of the Code, 50 USC § 626, which provides that he shall rule on all interlocutory questions arising during the proceedings. Unless Congress intended the phrase “interlocutory questions” not to include a mistrial, then there is an express grant to him of authority to end the hearing.
The language of the enactment is unambiguous and not restrictive except as his rulings might be subject to objection. However, the author judge has some reservations concerning the conferring of authority and one of the reasons he assigns for his reluctance to hold Congress granted the power is stated by him as follows: “One circumstance suggesting these doubts is the fact that all of the Armed Services have ruled consistently that a court-martial, or any element thereof, is without power to declare a mistrial, and *141that the motion for a mistrial is unknown to military law.” The eases he ■cites so state, but in two of the opinions I find that the boards of review considered the motions for a mistrial made by the accused as being motions for appropriate relief and then proceeded to consider the principles involved under that method of raising the •question.
It may be that we are all stumbling •over misdesignations of the motions, but in the end it matters little whether we label an application which seeks a termination of the trial proceedings, not amounting to a finding on the merits, as a motion for appropriate relief or mistrial. The important issue is whether the law officer has been clothed with the authority to grant either form •of relief. Again, it may be that, contrary to some statements in military cases, over the years mistrials were known to the military judicial system but were not often used because other .appropriate methods were available to reach the error. For instance, I find reference to termination of court-martial proceedings at various stages by writers on early military law, and some quotations specifically mention mistrials. Winthrop’s Military Law and Precedents, Second Edition, 1920 .Reprint, page 263, states:
“. . . So, at military law, neither a mere arraignment, nor an arrest followed by a discharge without trial, nor a service of charges withdrawn or dropped without prosecution, nor .a withdrawal of the charges after arraignment or pending the trial, nor .a discontinuance of the proceedings, by the order of the convening authority, for any cause before a finding, nor a permanent interruption of the same by reason of war or other exigency, nor a failure of the court to agree upon a finding, followed by a dissolution — will amount' to an acquittal or a ‘trial’ of the accused.” [Emphasis supplied.]
In the same author’s Abridgment of Military Law, published 1887, page 104, .he states:
. . When thus once found, should he be again arraigned for the same offence, he may effectually plead a former trial in bar of the second. It is otherwise, however, if the first proceeding did not reach an acquittal or conviction, but was for any cause interrupted and discontinued; or if the court, though coming to a finding, was in fact without jurisdiction; or its proceedings were for other reason invalid. ‘Tried’ means not only fully, but legally tried.” [Emphasis supplied.]
Tillotson in Articles of War Annotated, page 84, states:
“. . . If the first court fails to reach a finding, or becomes reduced below the required minimum of members, or is dissolved, or when for any cause, without fault of the prosecution, there is a mistrial, or the trial is terminated or the court dissolved before final acquittal or conviction, there is no former jeopardy (12-167, 168).” [Emphasis supplied.]
In the Digest of Opinions of the Judge Advocates General of the Army, Revised Edition, 1901, page 92, I find the following statement:
. . Where, for any cause, without fault of the prosecution, there was a ‘mistrial,’ or the trial first entered upon was terminated, or the. court dissolved, at any stage of the proceedings before a final acquittal or conviction. V, 192, October, 1863; 32, 29, April 1889.” [Emphasis partially supplied.]
The Manual for Courts-Martial, U. S. Army, 1917, Corrected to August 1, 1918, paragraph 149(c), pages 68-69, states the following:
. . Where, for any cause, without fault of the prosecution, there was a ‘mistrial,’ or the trial first entered upon was terminated, or the court dissolved, at any stage of the proceedings before a final acquittal or conviction. (Digest, p. 167, C, II, B.)” [Emphasis supplied.]
Converted to the parlance of civilian practice, those authorities seem to suggest that “hung juries,” discontinuances, terminations and mistrials were not entirely unknown in early military law. While I suppose it is accurate to *142state that the method ordinarily used in the military legal system to escape the effect of a prejudicial occurrence was for the convening authority to withdraw the charges and refer the case to another court-martial, it does not necessarily follow that Congress, when it enacted the Uniform Code of Military Justice, intended that that means was to be used exclusively in the future. The Code does not so state; and with the advent of the law officer, the necessity for seeking the legal advice of the convening authority was lessened. A judge was placed at the trial level to deal effectively with trial irregularities, and, absent a clear Congressional mandate to the contrary, he should not be stripped of his authority to perform an important function. Certainly the members of the Armed Services Committee of the House of Representatives were not entirely unfamiliar with the fact that the framers of the Code had considered the problem of granting ordinary judicial powers to a law officer, as they were specifically advised by Mr. Larkin that, under the new procedure, a law officer would rule on all interlocutory questions including a motion for mistrial.
A primary rule of statutory construction is that a statute should be so construed as to carry out the will of Congress. It seems to me that Congress in its latest enactment willed that a court-martial should be manned with trained personnel and should be granted sufficient power to try a case in all of its aspects without having to seek outside help. The system created did not permit complete divorcement between the court and the convening authority and many powers remain vested in him, but the thrust of the legislation was to grant autonomy to the court-martial. The areas where it was subordinate to the convening authority were reduced but in my judgment there are fields where they presently overlap and so long as the Code does not prevent either from carrying out the duties imposed by the Manual, or those necessary to the proper operation of a court, we should not interfere. If Congress sought to make the court-martial self-sufficient, then to deny to the law officer the right to terminate litigation when a court incident prevented either party from gaining a fair trial would be in conflict with that purpose. Moreover, it would unnecessarily require the intervention of a convening authority to rule on a question of law which ought to be decided by the judge of the forum in which it arose. While, under the present provisions of the Code and the Manual, the convening authority has not been divested of his power to terminate hearings, I see no good reason for not permitting a law officer who is better situated to exercise the same authority. An observer to the incident occupies a “ringside seat” and is in a preferred position to assess the prejudice. Furthermore, there is no reason to suspect that the present-day law officers are unqualified to measure the impact on court-martial members. Certainly, Congress must have intended to prescribe a workable and orderly procedure with a minimum of outside interference, and a strengthening of the hand of the law officer helps to bring about that result. Considering the wording of the Code in the light of the results to be accomplished, I have no hesitancy in concluding that when Congress decreed that a law officer should rule finally on interlocutory questions arising during the course of a hearing, it did not mean to reserve mistrials from that category.
The strongest argument against the position I take is that the Code and the Manual fail to mention mistrials, and in discussing termination of proceedings before findings, the Manual deals only with the powers of the convening authority. Article 44(c) of the Code, 50 USC § 619, provides:
“A proceeding which, subsequent to the introduction of evidence but prior to a finding, is dismissed or terminated by the conveying authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused shall be a trial in the sense of this article.”
That Article is dealing with double jeopardy and it does not support a contention that the right to terminate pro*143ceedings belongs exclusively to convening authorities. However, the Manual is specific in its limitation, as it states that a specification will be withdrawn only when directed by the convening authority. If, because of previous military rulings, a mistrial must be considered encompassed within that statement the provision poses several problems of statutory construction. First, it does not find express support in the Code; second, it appears in conflict with the Code provision which authorizes the law officer to rule finally on interlocutory matters; and third, if a convening authority alone can grant a mistrial, then an undesirable result follows as the court-martial is denied a right which is an inherent power of every court.
So fap as expressly denying the law ■officer the authority to terminate a trial, the Code is silent. However, it has been suggested that Article 44(c), supra, by implication, supports the view that only a convening authority has that power. Conflicts by implication should be avoided and it requires more than mere deduction to overcome the specific grant of authority to the law officer found in Article 51(c), supra. Moreover, Article 44 could be interpreted reasonably to apply to happenings outside of the trial proceedings. For the reason that I find no provision of the Code which directly or indirectly impinges on the powers conferred on the law officer to declare a mistrial, I am not faced with reconciling inconsistent provisions of the same statute.
We have repeatedly announced the principle that if provisions of the Code and the Manual do not con- flfet with each other, we will give full force and effect to the provisions of both. We have likewise stated that if there is a conflict between the two, the language of the Code will prevail. Applying that principle of construction to the wording of the Manual, if a mistrial is no more nor less than a withdrawal of the charges and specifications, the provisions of the Manual clash head-on with the Code, and the former must yield. If, on the other hand, a mistrial is something less than, or different from, a withdrawal of a specification; then the inconsistencies vanish. It would not be difficult to reconcile the two provisions in question if it were not for one of the examples set forth in the Manual. In paragraph 56b which discusses the withdrawal of specifications, I find the following statement:
. . Similarly, if inadmissible information highly prejudicial to either the Government or the accused, has been brought to the attention of the court, and it appears to the convening authority that the members of the court cannot be reasonably expected to remain uninfluenced thereby, he may withdraw the case' from that court and refer it to another court.”
The example used portrays a typical mistrial ruling, but other statements in the Manual disclose that specifications can be withdrawn for sundry reasons and mistrial is only one of the many. I might, therefore, seek a reconciliation by a holding that the Manual deals generally with all happenings which might justify a withdrawal of a specification, while the Code is limited to incidents occurring during the trial phase. However, I prefer to escape that horn of the dilemma by assuming that the framers of the Manual contemplated they were limiting the right to grant a mistrial to the convening authority. Based on that assumption, the Manual statement must be disregarded to the extent of the conflict. However, that alone does not solve the problem, as I am faced with the argument that a construction which divides authority is undesirable.
While, as a general proposition, divided authority is frowned upon, the growth and development of military law has resulted in an overlapping of certain duties and responsibilities. At the present time certain rulings of the law officer are subject to reversal by the convening authority. If a motion, challenging a specification is granted! by the law officer, the convening author-' ity may return the record for reconsideration. Article 61, Uniform Code, 50 USC § 648. Both may grant a continuance. Paragraph 58c, Manual for Courts-Martial, United States, 1951. *144Either may set the time for hearing of a ease or may reconvene the court after a recess or a continuance. In case of a defective specification the law officer may continue the case to permit trial counsel to refer the matter of further proceedings to the convening authority. Paragraph 696(3), Manual for Courts-Martial , supra. If a specification is dismissed on a motion and the ruling does not amount to a finding of not guilty, the convening authority may direct a reconsideration. Article 62 (a.), 50 USC § 649. When any motion raising a defense or objection, which prevents the trial from proceeding, is sustained by a law officer, the court will adjourn and submit the record of its proceedings to the convening authority. Paragraph 67 (/), Manual for Courts-Martial, supra. In questions of insanity at the time of trial the powers of the two officials seem to blend. Paragraph 1225, Manual for Courts-Martial, supra. See also my dissent in United States v. Knudson, 4 USCMA 587, 16 CMR 161. All but the last of the foregoing citations grant to the convening authority the right to operate in certain areas and yet the law officer is not precluded from first taking action if he elects so to do. In this instance, I would permit him to operate in the same general manner. He can either grant the motion for mistrial and have trial counsel forward the record to the convening authority to take further action with respect to forwarding the case to another court, or he can continue the case and refer the record to the convening authority for an original order on the withdrawal of a specification. Principally because the issue can be better developed in the trial forum, with both parties and their counsel present, I believe the former to be the better procedure. However, if the record is made in sufficient detail to permit an adequate presentation to the convening authority, he could dispose of the issue by one order. In either event, the ruling should be subject to review by boards of review and this Court, and the proceedings before a convening authority ought to be reported verbatim. Perhaps when the Code is revised and the Manual rewritten, the boundaries of authority between the two functionaries can be more clearly delineated, but under the present law they entrench upon each other. To avoid unnecessary conflicts, I believe the best results can be obtained if the law officer operates in the judicial field and the convening authority acts in his usual capacity of reviewing officer, or on matters more administrative in character. No one should seriously contend that when tactical or military considerations not affecting the guilt or innocence of the accused compel the action, the commander should not act without hesitation and without reference to the law officer. In those fields he is and should be supreme. Certainly, in a system which requires consideration of legal and military necessities, the mere fact that two officials are empowered to act in the same general areas does not make the legislation offensive. Particularly is that true when the convening authority has been granted the right to affirm or reverse many of the rulings of the law officer.
II
An extensive discussion of the power of the convening authority to withdraw charges and specifications and refer them to another court is unnecessary. Judge Brosman does not elaborate on that as an issue, and rightly so, as that power has always vested in the convening authority. Winthrop’s Military Law and Precedents, supra, at page 155, has this to say on the subject:
“The officer preferring charges is not entitled to have them brought to trial, nor has an accused a vested right in having charges against him adjudicated. The convening authority, representing the United States, may always withdraw charges before trial; may cause or authorize a nolle ■prosequi to be entered as to a charge or specification after the charges have been placed before the court and even after arraignment, and may cause or authorize charges or specifications to be amended. But — so far as concerns the court and the parties —charges duly referred for trial are, in law, ordered to be tried as they stand. Thereafter to assume to amend them without proper author*145ity is a military offence. As will appear in Chapter XVI, the court may strike out a charge or specification on motion of the accused if sufficient cause be exhibited; but, self-moved (or in the absence of an issue) and of its own original capacity, it has no power whatever to amend, modify, discard, or withdraw, or direct to be stricken out, any part of the charges or specifications officially committed to it for trial. . . .”
The Manual for Courts-Martial, U. S. Army, 1917, Corrected to August 1, 1918, paragraph 97, states that principle in the following language:
“. . . He [The judge advocate] may ordinarily correct obvious mistakes of form, or slight errors in names, dates, amounts, etc., but he will not, without the authority of the convening officer, make substantial amendments in the allegations, or— least of all — reject or withdraw a charge or specification or substitute a new and distinct charge for one transmitted to him for trial by the proper superior. (Digest, p. 496, IV, B, 1.)”
No recent Congressional enactment has taken away the power of the convening authority to control charges and specifications and all of them have assumed his right and power to do so. The United States Supreme Court in Wade v. Hunter, 336 US 684, supports that assertion. In addition, Article 44 (c) of the present Uniform Code of Military Justice, previously quoted, acknowledges his authority to terminate the proceedings. In the light of those convincing authorities any contention that the convening authority does not have the power to issue a directive to withdraw a specification is without merit.
Ill
I concur with the author Judge’s approach that we should review the ruling of the convening au- thority to determine if he exceeded his authority. In view of the fact that we dismiss the case, any argument on this phase of the case is relatively unimportant, but because my views are partially in conflict with those announced by him, I will set them forth. First, I agree with the concept announced by the author Judge that manifest necessity embraces keeping the proceedings free from substantial doubt as to legality, fairness, and impartiality. He makes an excellent argument to support the position he takes, but I go one step further and consider the entire record. Should we not as a court look to the entire record and determine from it whether those factors are present? What may be an attempt to cleanse the first trial of error may turn out to be more unfair than the original incident. When I consider the act of the convening authority in the light of both trials, I conclude the accused’s conviction is not supported by a foundation of fairness. In so concluding, I am influenced by the delayed action of the convening authority and the peculiar facts of this ease.
Before considering the merits of the question confronting us, I should first state that had the law officer declared a mistrial immediately after the incident occurred, I would have affirmed his ruling. At that point in the proceedings, the evidentiary structure was incomplete, he could not have appraised the merits of the case to the detriment of either party, and he was a bystander who could have sensed the effect of the statement on other members of the court. Had he acted at the moment the proceedings would not have been unfair to the accused. He would have had the benefit of intangible factors to support his ruling which were not measurable by the convening authority who obtained his information second-hand. Any impression obtained by the latter were colored by the views and interest of the reporting person. Moreover, in hearing the issue in court, counsel for both parties would have been present to protect the rights of their clients and all proceedings would have been fairly reflected in the record. A decision arrived at in open court in the presence of all parties is apt to be less arbitrary than one made in an unrecorded session. Furthermore, the opportunity to protect a cause on appeal is limited if a record of the proceedings has not been fully preserved.
*146I believe that the framers of the Manual intended, in so far as consistency with the Code would permit, to equate the military and civilian rules on double jeopardy. However, they hedged in the convening authority’s power by including a caveat that it should be exercised only with the greatest caution, under urgent circumstances, and for plain and obvious reasons. It is that limitation which causes me difficulty in the present instance.
The Manual in dealing with the subject states:
“If evidence on the issue of guilt or innocence has been received after a plea has been entered, a withdrawal of a specification because of a failure of available evidence or witnesses, without any fault of the accused, amounts to jeopardy and constitutes a trial in the sense of Article 44. However, withdrawal of a specification because of manifest necessity in the interest of justice is not a bar to further prosecution. Thus, if urgent and unforeseen military necessity requires that a trial be terminated, and it does not appear that the military situation will permit resumption of the trial within a reasonable time, the withdrawal of a specification will not prevent a later trial for the same offense. Similarly, if inadmissible information, highly prejudicial to either the Government or the accused, has been brought to the attention of the court, and it appears to the convening authority that the members of the court cannot be reasonably expected to remain uninfluenced thereby, he may withdraw the case from that court and refer it to another court. The power to withdraw a case after evidence has been taken on the issue of guilt or innocence will be exercised only with the greatest caution, under urgent circumstances, and for very plain and obvious causes. A specification will not be withdrawn arbitrarily or unfairly to the accused in any case.” [Manual for Courts-Martial, United States, 1951, paragraph 566.]
That paragraph can be interpreted as breaking manifest necessity into two general categories, namely, military exigencies and judicial mistakes. Those are not refined classes but they are sufficient for the purpose of this case. The first class permits a termination of the proceedings if urgent and unforeseen military necessity requires that such action be taken. This is a doctrine announced in Wade v. Hunter, supra; but that case is authority only for the proposition that the convening authority may withdraw the specification when the military situation makes a continuation of the trial impracticable. The second class, and the one of importance to the present problem, authorizes discontinuation of the trial if inadmissible information, highly prejudicial to either the Government or the accused, has been brought to the attention of the court-martial, and it appears to the convening authority that the members cannot be reasonably expected to remain uninfluenced thereby. In both categories the Manual warning that the power can only be exercised with caution, under urgent circumstances, and for very plain and obvious causes should be heeded. I, therefore, conclude we must test the facts of this case by the Manual specifications and if, after allowing some latitude to the convening authority, we cannot say the designated particulars have been met, then the plea of double jeopardy must be sustained.
The first element to be considered is whether the incident was highly prejudicial to either the Gov- ernment or the accused. I encounter a great deal of difficulty in determining which party, if either, was detrimentally affected by the remark. This, for the reason that prior to the comment the case had been very poorly managed. There had been three unreported side bar conferences, three recesses, and considerable arguing among counsel and the law officer over questions of double jeopardy, selection of court members, the admissibility of a deposition and many of its interrogatories. At the end of one and one-half hours, not one bit of evidence had been admitted. Just prior to the happening of the incident disclosed in *147the colloquy quoted by Judge Brosman, the third recess was requested and the president of the court stated: “Well, are we going to have a court, or aren’t we?” This was followed by introduction of the interrogatories and answers of the victim. The latter were indefinite, uncertain, and confusing and the law officer was required to strike some of the individual answers. Continuity was destroyed and because of language difficulties and the use of the third person by the complaining witness, her testimony on identification was doubtful. When counsel for defense realized his cross-interrogatories were damaging, he unsuccessfully sought to withdraw them. A companion of the accused was called and his testimony was far from convincing. One member of the court-martial sought to question him but he ran afoul of the rules of evidence and he sought to justify his questions by complaining that the evidence was “in-concise and confused.” When the trial counsel called the next witness the president requested permission to talk to the law officer. The latter explained the conversation must be on the record, and the president then spoke his piece. It might be expected that out of that welter of confusion a complaint would be registered but it is the sheerest speculation as to whether either party was prejudiced by the views expressed. My impression is that the president was vocalizing his disgust at the apparent unpreparedness of both counsel. Be that is it may, the proceedings settled down, an extrajudicial confession of the accused was admitted in evidence, and the matters in dispute became more certain. At the time the matter reached the convening authority the issues were developed fully and the incident, in all probability, had lost its importance. When he acted, there remained little reason to believe that a mistrial was necessary to purge any possible prejudice.
The necessity for urgency likewise seems to be lacking. Assuming the convening authority proceeded to consider thoroughly all important aspects of the case, I find no necessity for haste. The court had recessed for the evening. All evidence had been admitted, except a stipulation of value, and the court was to reconvene the following morning to hear arguments of counsel. The convening authority had a number of alternative remedies. He could have obtained the desires of counsel; he could have notified the law officer to afford either one of them an opportunity to move for a mistrial, if they so elected; or, he could have conditioned an order to continue upon the consent of the accused. Had defending counsel rejected an opportunity to have the specification withdrawn, I am certain that the fairness of the proceedings could not have been assailed and the accused could not complain on appeal. Conceding that a convening authority should not be charged with error because he does not choose the best method, those suggested by me offer some alternative ways of dealing with the question and they make a contention of urgency sound hollow.
The only other question bearing discussion is whether the specification was withdrawn unfairly to the accused. The record bears persuasive evidence that it was. By restating some of the facts I have mentioned, together with some not set forth, I hope to support that statement. The decision was made between the afternoon recess and the morning session. There was no compelling reason for urgent action. During the colloquy the law officer, in no uncertain language, had instructed the court members that they were to decide the guilt or innocence of the accused and not to prosecute the case. That had a definite tendency to remove any taint of influence. At the time the convening authority took his action, the incident was stale; the evidentiary drama had been completed; and the weakness of the Government’s case was apparent. He had the factual structure fully developed and its weaknesses and strength could be ascertained. The accused had elected not to testify and his only chance for favorable consideration was that the Government had not established his guilt beyond a reasonable doubt. For aught that appears, he was unaware that his fate was being decided in what may have been a secret *148session while the court-martial was in recess; and I would place on the Government the burden of showing accused had been heard before the order was made. The record fails to show that he was offered any opportunity to plead his cause before the action was ordered even though the results of the action taken were calculated by the staff judge advocate who took the precaution to state in the letter of transmittal that double jeopardy was not involved. Absent a showing to the contrary, this smacks of a star chamber session.
I have not overlooked the fact that the Government has a right to a fair and impartial trial; but a party at fault cannot seek a mistrial. Aside from that, I fail to see what prejudice the Government suffered. No exception to the remark was taken by its representative. Trial counsel was content to rely on the fairness and impartiality of the selected members, and the law officer sensed no unfairness to the prosecution. Counsel for the Government can waive a mistrial to the same extent as can defending counsel. It is a bit unusual for an outsider to feel that an incident is highly prejudicial to the Government when an active participant is unimpressed by its seriousness. If the comment was justified, some burden must be borne by the prosecution. True the evidence aliunde the confession was weak and unconvincing; and due to the difficulties involved in using a deposition and presenting evidence through an unfriendly witness, trial counsel was operating under trying circumstances. However, preparation beforehand is required, and a mistrial cannot be used to afford the Government an opportunity to shore up its case. My impression from this record is that a desire to do that played an important role in the decision to withdraw the specification. Taking everything into consideration, I find the withdrawal was arbitrary and legally unfair to the accused.
IV
I concur with Judge Brosman on the principles he announces in holding the deposition inadmissible.