(dissenting):
I dissent.
Apart from regarding the elaborate discussion on mental responsibility and the opinion of the United States Court of Appeals for the District of Columbia in United States v. Durham, 214 F2d 862 (1954), as unnecessary to the decision of this case (See: United States v. Kunak, 5 USCMA 346, 17 CMR 346), I strongly disagree with substantial parts of it. However, I need not recite .all the particulars of my disagreement because I find here, as I did in United States v. Kunak, supra, an improper use of the technical manual, TM 8-240, "“Psychiatry in Military Law.”
Mention of the technical manual first occurs in the cross-examination of Brigadier General R. E. Chambers, Chief of the Di- vision of Psychiatry and Neurology, Office of the Surgeon General, United States Army. General Chambers testified for the defense. At various times in a period of years preceding the offense, he had the accused under his medical care. He also examined the medical data respecting the accused that had been obtained shortly before and after the crime. In his opinion, the accused could not adhere to the right at the time of the commission of the offense. Attempting to undermine this opinion, the prosecution sought to limit General Chambers to a statement of his medical opinion, in terms of the definitions of mental disorders enumerated in the technical manual. Later, a prosecution rebuttal witness, Major H. A. Segal, one of the members of a medical board of officers which examined the accused before the trial, was similarly circumscribed in his testimony. This appears very clearly in the following excerpt from his direct testimony:
“Q. In your opinion, does the accused now. suffer or did she suffer on the night of 3-4 October with any mental defect, disease, or derangement as defined by TM 8-240?
“A. Under the definition of TM 8-240, it is my opinion that she did not and does not suffer from any mental disease, defect, or derangement.”
It also appears that Captain W. E. Mayer, a member of the same medical examining board as Major Segal, signed the medical report, which was frequently referred to at the trial, because he believed that:
“. . . the conclusions therein set forth met the requirements contained in TM 8-240, ‘Psychiatry in Military Law.’ If the same questions relating to Mrs. Smith’s mental responsibility had been propounded to me in civilian practice, where I was not subject to the limitations imposed by the cited technical manual, I would not have concurred fully in the conclusions reached by the Board, particularly in regard to Mrs. Smith’s ability to adhere to the right.
“4. I am of the opinion and believe that, from a purely medical point of view, at the time of the alleged offense Mrs. Smith was suffering from a ‘mental defect, disease, or derangement.’ I am of the opinion and believe that at the time of the alleged offense Mrs. Smith was incapable of setting out to kill her husband in a calculated, premeditated way. I am of the opinion and believe that, from a purely medical point of view, at the time of the alleged offense Mrs. Smith’s ability to adhere to the right was impaired.”
This showing is supplemented by a statement in the report of the second board of medical officers, which was submitted to the board of review in connection with its reconsideration of the case. The statement reads as follows:
“Records of examinations conducted by two expert consultants to the Surgeon General, one in Psychiatry and one in Clinical Psychology, are attached to this report as an exhibit. Both are on the visiting staff for the Neuropsychiatric Service, Letterman *346Army Hospital. It is believed that it is pertinent to note here that Dr. Alexander Simon is a nationally known psychiatrist and at present is Professor of Psychiatry, University of California Medical School, San Francisco, California. Dr. Douglas M. Kelley is widely known in Psychiatry, considered an authority on the Rorschach psychological procedures and has had considerable experience in the medico-legal field. At present, Dr. Kelley is Professor of Criminology at the University of California, Berkeley, California.1
“The medical officers who have examined Mrs. Smith and whose names will be signed to these findings, function in a somewhat differently structured medico-legal context than their civilian colleagues who have also examined the accused. By this, it is inferred that the military psychiatrists latitude is in effect, somewhat diminished as to what findings he may make by the established body of medico-legal policy and precedent now codified in part in TM 8-240. It is the impression of the undersigned that in a civilian jurisdiction a much more liberal, interpretation of issues of mental responsibility in crimes of violence is frequently observed. These-statements are made in an attempt to explain some of the differences of' opinion as to the accused’s responsibility expressed by military and civilian psychiatrists.”
From the record, it is distinctly evident that the prosecution’s expert-witnesses did not testify according to convictions based upon their own knowledge and medical experience, but in accordance with strictures of the technical manual. It matters not that the manual may have been intended for instructional purposes only. Clearly, the medical experts considered themselves bound by the manual’s terms, to the exclusion of their individual professional beliefs. Under the circumstances, their testimony was so seriously compromised as to require, in the interest of justice, a rehearing. See my dissenting opinion in United States v. Kunak, supra.