(concurring):
On all of the important points in this case, I concur fully with Judge Latimer, and our few fields of disagreement, I believe, are collateral and fall within the category of dicta. However, there are probably sufficient differences in emphasis to justify the filing of this separate opinion.
II
With respect to the evidence which has been urged as demanding that a new trial be granted on the point of mental responsibility, I must mention several considerations. The accused was interviewed by one psychiatrist, a Major Hill, three times prior to the offense and thereafter as well. The Major concluded that Kunak was legally sane. According to the latter’s own testimony, he was seen by three psychiatrists at Fort Hood within a few days of the commission of the offense. One of these, a Captain Schumacher, testified at the trial, and also voiced his conclusion that the accused was sane. Too, a sanity board, convened later at Fort Bragg, made an independent and careful check, including an observation of the accused for thirty days during hospitalization there. These last three psychiatrists — that is, the members of the board — appear also to have concluded that Kunak was sane, and the president expressed this opinion at the trial. In addition, it was brought out *366in testimony coming from the president of this board — and also from the accused himself — that a well-known civilian psychiatrist, a Dr. Hohman of Duke University, had participated in the discussions of the group. Yet out of this welter of psychiatric evidence having to do with examinations prior to trial, the testimony of not one medical expert was offered by the defense. The most obvious and compelling inference is that no psychiatrist who saw the accused at the time was of the opinion that he was mentally irresponsible under the law. Moreover, no lay witness stated that the accused was insane —although one expressed doubt concerning his ability to adhere to the right. On the other hand, several lay witnesses testified explicitly that they regarded him as sane.
In view of this solid wall of adverse testimony from experts who examined Kuriak near the time of the offense, and from other witnesses as well, it would be difficult indeed to justify upsetting the findings of guilty by reason of evidence adduced at a later time. That evidence, no matter how emphatic, is distinctly subject to the interpretation that the accused’s condition had simply deteriorated after the homicide — perhaps due to the impact of the pressures of the trial and the strain of long term ■confinement. . Moreover, in the present ease even the post-hearing data were conflicting: — since a second sanity board, convened during the course of review of the case, also considered the accused to be legally - sane. Like its predecessor, this board enjoyed the benefit of observation of the subject during another period of hospitalization — and it would seem that its conclusions should in general, be entitled to greater weight than those based on short interviews, no matter how eminent and learned the medical experts expressing the latter may have been.
The Chief Judge has intimated that the very unanimity of the psychiatric testimony at the trial constitutes an in-dicium that something suspicious occurred. I hardly know what to make of this position. Certainly it is hardly flattering to practitioners of psychiatry —and almost frightening in its legal-administrative implications. While I concede that disagreement among psychiatric witnesses is not unknown — in fact, is a commonplace in many courtrooms — I suspect that the military system, with its provision of sanity boards to observe the accused prior to trial, tends to forestall much of this conflict. Indeed, the military procedure is similar in this respect to that established under the Briggs Law in Massachusetts, where courtroom battles between psychiatrists are seldom observed.1 The reason appears to be that under these schemes the opportunity furnished psychiatrists to observe the accused under hospital conditions prior to trial, and thereafter to consult calmly with each other, produces more frequently a diagnosis which is satisfactory to all. One would expect to find this tendency even more marked in the military establishment, where greater specification is provided in the standards for the determination of mental responsibility. See United States v. Smith, 5 USCMA 314, 17 CMR 314.
Ill
The Chief Judge has commented on the provisions of TM 8-240, which provide three criteria for the ascertainment of irresistible impulse. As I read the Technical Manual, these requirements *367have to do with an impulse claimed to derive from compulsive psychoneurosis, and are not at all applicable to one attributable to psychosis. The three criteria are: (1) that the act is part of a recognizable psychoneurotic pattern; (2) that mounting anxiety existed, or tension which was relieved by the offense; and (3) that the compulsion was so strong that the act would have been committed although a policeman had been at the accused’s side at the time.
The first two criteria reflect the Technical Manual’s warning that “The medical officer will be properly skeptical of an allegedly irresistible impulse that was, for the first time in the subject’s life, suddenly generated just before the commission of the crime.” This caution in turn derives from the dictate of the Manual for Courts-Martial to the effect that only an inability to adhere to the right, which stems from “mental disease, defect or derangement,” will exculpate an accused. It seems generally recognized that there is no mental “disease” of irresistible impulse. See United States v. Smith, supra, footnote 28. Therefore if irresistible impulse is to be utilized as a defense, it must be linked to some psychiatric diagnosis which falls within the purview of “mental disease, defect or derangement.” This will reduce to psychosis or psychoneurosis, as I interpret the Manual for Courts-Martial within the framework of the Joint Armed Forces Definitions of Psychiatric Conditions, SR 40-1025-2. See United States v. Smith, supra.
The Technical Manual, “Psychiatry in Military Law,” as I see it, seeks only to serve as a bridge between' the Manual for Courts-Martial and these Joint Armed Forces Definitions. The criterion of anxiety in testing for an irresistible impulse claimed to derive from compulsive psychoneurosis amounts to no more than a ‘ focus.. on the chief characteristic of psyehoneu-rotic disorders — that is to say, anxiety. See SR 40-1025-2, paragraph 5. The emphasis on a “repeated psychoneurotic pattern” ■ is simply an exhortation ■ to the examiner to be certain that there is a psychoneurosis. As indicated in the same Special Regulations, “Longitudinal (lifelong) studies of individuals with such disorders usually present evidence of periodic or constant maladjustment of varying degree.” Supra, paragraph 5.
The statement in TM 8-240, paragraph 5, that “It is evident that only very rarely, if indeed ever, do offenses committed within the framework of a supposed compulsive psychoneurosis satisfy all three criteria, particularly the third,” simply recites the doubts maintained by many psychiatrists that a really serious offense — say murder— can ever derive from compulsive psychoneurosis. See United States v. Smith, supra, page 334, footnote 27.
The Chief Judge also argues that it is unfair to permit material of this nature to be presented to a court-martial via judicial notice. In the first place, I find no choice left open to us — since, as Judge Latimer indicates, the Manual for Courts-Martial authorizes this procedure. See also United States v. Smith, supra. Although Judge Quinn insists that a limiting construction must be given the word, “facts,” as used in paragraph 147a, I cannot avoid the conclusion that language used in this Government directive falls clearly within the scope of “facts” as used in the Manual.
Secondly — and with special reference to the present case — it is clear that defense counsel was entirely willing that the Technical Manual be judicially noticed by the court. Actually the first mention of .TM 8-240, “Psychiatry in Military Law,” at the trial came from defense counsel himself, who referred to it in.the course of an out-of-court hearing, which forms .Appellate Exhibit 2. Subsequently, on recross-examination of Major Hill, a prosecution witness, defense counsel adverted'to the three criteria of irresistible impulse set out in the Technical' Manual, and pre-i sented the substance of. each in ques-i tions to the witness. The last rebuttal1 witness, Major Baker, referred to the Technical Manual in response to a question from ■ a court member. In ' the course of his testimony at this point, the. Major indicated a-clear misconeep*368tion of the “policeman” test. As Major Baker sought to apply the “policeman at the elbow” test, the accused did not at all qualify, because it was the former’s opinion that Kunak would have refrained from the act had there been a prospect that a policeman would frustrate it prior to commission. Defense counsel, in previously questioning Major Hill, had brought out that the test laid down in TM 8-240, with respect to the presence of a policeman, was directed to the prospect of detection and apprehension — and was not to be used in the manner in which Major Baker later sought to use it. See also United States v. Smith, supra. Accordingly, defense counsel in his further cross-examination of Major Baker adverted specifically to the Technical Manual, and said to Major Baker: “It [TM 8-240] explains the policeman being there by saying that it is a question of detection, and not being interfered with, is that it? That’s on the bottom of page five, and your’s is just like this one.” (Italics supplied.) Major Baker answered, “That is correct” — whereupon the law officer stated:
“LO: At this time the law officer will instruct the court that they are authorized to take judicial notice of the said Manual — what is that number?
“A: Technical Manual 8-240, dated September 1950.
“LO: The court is authorized to take judicial notice of the said Manual and its contents, and will do so.”
Defense counsel offered no objection to having the publication noticed judicially for the plain reason that he was using it at the time to impeach a prosecution witness. Clearly he wished the court-martial to know that TM 8-240, paragraph 5c, page 6, in connection with the “policeman” test, stated' that “No impulse that can be resisted in the presence of a high risk of detection or apprehension is really very ‘irresistible’ ” — for this sentence contradicted Major Baker’s interpretation. See United States v. Smith, supra.
In addition to the limited purpose for which the defense counsel wished TM 8-240 to be noticed judicially at that time, there was an additional purpose to be served — -since he felt that Kunak’s case fell directly within the pattern of TM 8-240, paragraph 5. This able attorney had offered evidence of what he contended to have been prior irresistible impulses on the accused’s part. Through the accused’s testimony, counsel had built up a picture of mounting tension, virtual automatism, and relief of anxiety after the homicide. If the “policeman at the elbow” test were correctly construed as meaning absence of fear of detection and apprehension, then the accused would have experienced less difficulty in meeting that criterion — for the reason that the shooting occurred in broad daylight, with military policemen in the vicinity, and with no effort on Kunak’s part to escape. In short, the reference to the three criteria of TM 8-240 can scarcely have harmed the accused — as is evidenced by the circumstance that his own counsel made the first mention thereof, and dealt with them at length thereafter.
A further point may be made in this connection — which is that defense counsel showed himself quite unwilling to be bound by a different Army publication when his purpose was not served thereby. This is graphically illustrated by a colloquy with Major Baker during the course of cross-examination. At that time the distinction between character and behavior disorders, on the one hand, and schizophrenia, on the other, was being examined.
“Q. Well, schizophrenia is a character and behavior disorder, is it not?
“A: No, sir.
“Q: Well, that is the way it exemplifies itself outwardly, isn’t it?
“A: No, sir. Character and behavior disorder as defined in SR 40-1025-2 is a rather technical entity, and refers—
“Q: Well, what is it?
“A: And it refers to those individuals who exhibit a developmental defect in their personality structure, who have a lifelong history of actions and behavior, rather than the formation of mental and emotional symptoms.
*369“Q: Well, did you find any mental and emotional symptoms in this boy?
“A: Not as they are referred to in that Special Regulation, no sir.
“Q: Well, not as they are referred to in a Regulation, but your opinion as an expert. Do you have an opinion?
“A: Yes, I do, sir.
“Q: And your opinion is, is it not, that he was having that type difficulty ?
“A: A character and behavior disorder, yes, sir.
“Q: All right. And a character and behavior disorder may or may not be due to mental illness, is that correct ?
“A: A character and behavior disorder is not due to a mental illness as defined by such terms as psychosis, insanity, or mental derangement.” [Italics supplied.]
IV
Defense counsel was entirely conscious of the ambiguity in the “policeman” test as stated in TM 8-240 — and brought out that Major Baker had applied it incorrectly in certain of his testimony. Yet, despite this awareness of the possibility of confusion latent in an unqualified reference to the test, he made no request for further instructions when the law officer advised the court that “If the accused would not have committed the act had there been a military or civilian policeman present, he cannot be said to have acted under an irresistible impulse.” To me this want of a request for clarification seems clearly attributable to a belief that the court would not construe the policeman test to refer to anything other than the probability of detection. Under these circumstances, I cannot see how the instruction may be said to furnish a basis for reversal.