(concurring) :
I concur fully in the result reached by Judge Latimer.
Like both of my brothers, I conclude that there was no violation of Article 31 here. Subdivision (a) of that Article does not enter the picture — for the reason that no attempt was made to compel the accused to testify at the Martin trial. We have emphasized that “Undoubtedly, it was the intent of Congress in this division of the Article [Article 31(a)) to secure to persons subject to the Code the same rights secured to those of the civilian community under the Fifth Amendment to the Constitution of the United States — no more and no less.” United States v. Eggers, 3 USCMA 191, 11 CMR 191. In a civilian setting it seems clear that the mere circumstance that one is called as a witness is not usually considered— without more — -to constitute coercion to testify. Cf. Rogers v. United States, 340 US 367, 95 L ed 344, 71 S Ct 438; United States v. Monia, 317 US 424, 87 L ed 376, 63 S Ct 409; United States ex rel. Vajtauer v. Commissioner of Immigration, 273 US 103, 71 L ed 560, 47 S Ct 302; Powers v. United States, 223 US 303, 56 L ed 448, 32 S Ct 281; Wilson v. United States, 162 US 613, 40 L ed 1090, 16 S Ct 895; United States v. Block, 88 F2d 618 (CA2d Cir), cert den, 301 US 690, 81 L ed 1347, 57 S Ct 793. I would consider that under the Eggers *195rule the mere calling of Howard did not involve coercion.
Of course, it may be remarked that a military witness is subject to a number of intangible pressures to testify when he is called as a witness. But so, too, is his civilian counterpart by reason of the contempt and subpoena powers of the civilian court. Moreover, the latter sort of witness is subject to similar general pressures stemming from awe of the judicial process and the courts. While I would hesitate to apply uncritically in the military sphere the strict civilian rule concerning waiver of the privilege against self-incrimination through simple failure to claim it promptly, I must accede to the proposition that there is no showing here that Howard’s testimony at the special court-martial trial was compelled. See Rogers v. United States, supra.
Likewise, I deem Article 31(5) inapplicable within the present context. Under certain circumstan- ees that provision confers a privilege to refrain from answering questions “regarding the offense” of which the person interrogated is accused or suspected. This privilege is broader than that to refrain from answering inquiries which tend to incriminate. See United States v. Williams, 2 USCMA 430, 9 CMR 60; United States v. Taylor, 5 USCMA 178, 17 CMR 178. That this principle should apply to extrajudicial interrogations is understandable, for the usual military investigator would experience difficulty both in interpreting for himself and in explaining to the suspect the meaning of the phrase “tends to incriminate.” On the other hand, the personnel of a court-martial are better qualified to understand, expound, and apply this concept. Moreover, during an interrogation by a military investigator or a superior officer, the suspect may labor under at least some pressures not present in civilian interrogation. Because of this there would seem to be special need to confer an unusually broad protection on the military suspect. However, during the course of a military judicial proceeding, the need for protection is markedly reduced both by reason of the diminished danger that the witness will be forced into unwilling admissions or confessions, and the additional circumstance that all of the events of the examination are recorded. Accordingly, I do not believe that Congress intended to provide that, when called as a witness, a suspected serviceman — unlike a civilian — may not be compelled to testify as to matters which might “regard” the offense of which he is suspected, yet which do not tend to incriminate him. However, such a result would flow from a holding that Article 31(5) is applicable in the instant context.
Incidentally, the Manual — for whatever value is to be accorded it as a contemporaneous interpretation of Congressional intent — indicates that a witness may be required to respond to an inquiry, if it appears clearly that no answer thereto might tend to incriminate him. Paragraph 150. Nothing whatever is said about whether the question “regards” an offense of which he is suspected — with the apparent result that the Manual’s framers did not consider this standard applicable in a court proceeding. The same rule was expressed in the 1949 Manual for Courts-Martial, paragraph 136. Yet under Article of War 24 — then in force —a duty was imposed to warn an accused that he was not required to make any statement “regarding the offense of which he is accused.” Thus, it appears that Congress did not choose, despite this administrative interpretation, to suggest explicitly that Article 31(5) was applicable to testimony before a court-martial.
It may be observed that Article 31 (a) provides that no person shall be compelled to reply to a question “the answer to which may tend to incriminate him.” By negative implication, one subject to the Code may, at least under some circumstances, compel another to reply to a question when the answer does not tend to incriminate him. Yet, as previously developed, that answer may well “regard” an offense of which the person interrogated is suspected. But Article 31(5) — if interpreted in the inclusive manner contended for by the accused here— would exclude this possibility. In view *196of the precedents, the solution of the inconsistency would seem to lie in an interpretation of Article SI(&) which renders it inapplicable to proceedings before a court-martial — with the result that military law would in this regard conform to the civilian rule.
The basic thrust of both 31(a) and 31(6) moves in the direction of a protection against compulsory self-incrimination. In accord with 31 (a) and the civilian precedents, an accused may be compelled to testify in a court-martial proceeding if complete immunity is conferred on him. On the other hand, under 31(6), he would seem to enjoy a privilege not to testify — if that provision be deemed to apply to courts-martial. After all, the testimony would still concern an offense “of which he is accused or suspected,” although he could not be prosecuted therefor. With this in mind, I am even more firmly convinced that only subdivisions (a), (c), and (d) of Article 31 were intended to apply to proceedings before a court-martial — and 31(6) was designed solely to protect a suspect or an accused during pretrial investigation. Thus, pretermitting the issue of whether there was a showing that the accused was “suspected” of a crime by his interrogators at the court-martial trial of Martin, and the subsidiary question of whom such deficiencies in proof must be chargeable against in the case at bar, I am convinced that Article 31 is not pertinent.
I agree, too, that the president of the special court-martial which tried Martin was under no duty to warn the accused. Like the Chief Judge, I am inclined to regard the language of the Manual’s paragraph 1506 as directory, rather than mandatory. As I understand the Federal rule on the point— and that of the majority of state courts as well — there is no legal burden on the trial judge to warn an ordinary witness concerning self-incrimination. See, e. g., Wigmore, Evidence § 2269. He may if he likes, and doubtless he should if the witness appears to be uninformed. But he is not usually required to do so. We simply find here the need for balancing two opposed values: the protection of the witness, on the one hand, and the necessity for getting at the truth, on the other — and the prevailing rule reflects a belief that the latter must be deemed to overweigh the former. It strikes me that the relevant Manual language seeks to do more than to place the ordinary witness in a court-martial proceeding on a parity with his civilian counterpart. In any event, I see nothing here to indicate that the accused was “an apparently uninformed witness” when he testified for Martin.
By way of caveat I may say that I might feel disposed to apply a different rule had the accused established that he was called as a witness at the trial of Martin as a result of information elicited from him prior to that trial without the warning required by Article 31. In such an instance a “fruit of the poisonous tree” approach might appear appropriate. However, the record is wholly silent in this particular, and I have consistently opposed speculating a court-martial into error. United States v. Josey, 3 USCMA 767, 14 CMR 185.
In view of the foregoing, I can only affirm the conviction.