(dissenting):
I would reverse the findings of guilty and order a new trial.
The pivotal question in this case is the accused’s sanity. As appears from Judge Latimer’s opinion, substantial expert and lay testimony supports each side of the issue. As far as the experts are concerned, several service psychiatrists were of the opinion that the accused was so far free from mental defect, disease, or derangement as to be able to distinguish right from wrong and to adhere to the right in respect to the act charged. Conversely, Dr. Manfred Guttmacher, Chief Medical Officer, Medical Service of the Supreme Bench of Baltimore, Maryland, a psychiatrist of acknowledged reputation (see Bibliography, TM 8-240, AFM 160-42, September 1950), found that the accused is a paranoid schizophrenic, and that he suffered from a “psychotic irresistible impulse” at the time of the offense. Moreover, in his report he said that the accused did not “impress the Examiner as one of those borderline psychotics but rather as a flagrant one.” Dr. Guttmacher’s opinion is supported by that of Loyal B. Calkins, now Criminal Psychologist for the Maryland State Penitentiary and formerly Chief Clinical Psychologist, Branch, U. S. Disciplinary Barracks, New Cumberland, Pennsylvania. Dr. Calkins conducted a psychological examination of the accused shortly after he was confined at the Disciplinary Barracks. The results of a Rorschach test administered to the accused “indicated paranoid schizophrenia.” Later, he was present at an examination of the accused by a Dr. Eaton, a civilian consulting psychiatrist at the Barracks. Dr. Eaton agreed with the diagnosis of paranoid schizophrenia. Additionally, it was shown that one of the accused’s brothers was in a mental institution, a second brother had received psychiatric treatment, and a sister had “several nervous breakdowns.” James K. Evetts, Esquire, District Attorney of Lampasas County, Texas, who had frequently observed persons whose sanity was “seriously questioned,” investigated this homicide. He talked to the accused on the day of the shooting. In his deposition testimony, admitted in evidence at the trial, he said, “In my opinion, he (the accused) knew the difference between right and wrong but I seriously doubt that he had the ability to definitely determine the nature or consequences of his actions.”
*370If the record only showed this conflict in testimony, the case would simply be one in which the triers of fact had decided the issue upon substantial evidence; on that basis the findings of guilty would have to be affirmed. United States v. Ransom, 4 USCMA 195, 15 CMR 195. However, more than a mere conflict of testimony appears.
Apart from the instructional error found by the majority, three important questions are raised: (1) Shall we adopt as part of the military law the expanded view of mental incapacity propounded by the United States Court of Appeals for the District of Columbia in Durham v. United States, 214 F2d 862? (2) May a court-martial take judicial notice of the Department of the Army technical manual, TM 8-240, Psychiatry in Military Law? (3) If such notice may be properly taken, does the manual correctly state the law relating to irresistible impulse?
On the first point, although I am normally inclined to apply to the military the established law of the Federal civilian jurisdiction, when it is not contrary to or incompatible with express provisions of military law, I believe that no unifoi'm Federal standard has yet been formulated. Other Courts of Appeals have not acted on the matter and no solid core of Federal precedent exists. Of course, the absence of such precedent does not require uncritical adherence to outmoded and acknowledged inadequate standards. But, while the Durham case is indeed persuasive, I think that, in so controversial an area, we should proceed with extreme care. For the time being, therefore, I think that it is better to adhere to the rule presently set out in the Manual for Courts-Martial. ■
With respect to the second question, the majority hold that a court-martial can take judicial notice of the contents of the technical . manual. I disagree.-
Paragraph ■ 147, Manual for Courts-Martial, United States, 1951, authorizes a court to take .judicial notice of the organization of the Department of Defense and. the departments thereunder and “the regulations and official publications pertaining thereto or issued thereby.” However, such notice is permitted only for the purpose of recognizing the existence of certain facts. Ibid., page 273. The technical manual, “Psychiatry in Military Law,” does not purport to state existing facts; rather it seeks to define and explain medicolegal principles. Its purposes are set forth as follows:
“This manual defines and explains the legal standards applied in military law to determine whether a person was mentally responsible at the time of an offense and has the requisite mental capacity to be tried by court-martial. Since a diagnosis of a particular psychiatric disorder, viewed in the light of these legal standards, may result in a determination that the individual is or is not criminally accountable, certain psychiatric disorders are discussed with reference to their legal effect. Important aspects of psychiatric medico-legal examinations are discussed and methods, procedures, and standards prescribed therefor. Matters pertaining to psychiatric testimony before courts-martial with which the medical examiner must be acquainted are mentioned. So that he may properly perform his duties as psychiatric examiner and prospective expert witness before a court-martial, the medical officer should become thoroughly familiar with the legal concepts of mental responsibility and capacity as outlined in Chapter XXV of the Manual for Courts-Martial, 1949 (re_-ferred to herein as MCM, 1949) and this manual.” [TM 8-240, AFM 160-42, Psychiatry in Military Law, September 1950, paragraph 1.]
A publication which seeks to teach, explain, or discuss the subject-matter of one discipline in relation to that of another cannot be regarded as a statement of fact. It is, at best, a textbook or treatise on such subjects.
Generally textbooks on the law are not admissible in" evidence. Under certain circumstances they may undoubtedly be considered by the trial judge for the purpose of ascertaining the applicability of principles of law. Páquete *371Habana, 175 US 677, 44 L ed 320, 20 S Ct 290. But, they may not be read or presented to the jury as evidence. United States v. Chaput, 2 USCMA 127, 7 CMR 3; Walker v. Johnson, 96 US 424, 24 L ed 834. To the extent, therefore, that the technical manual attempts to delineate the legal principles on irresistible impulse it cannot properly be offered to the court-martial members for their consideration. Similarly, standard medical treatises are not competent evidence of either the facts or the opinions advanced by the authorities. United States v. One Device, Etc., 160 F2d 194 (CA10th Cir 1947); Union Pac. Ry. Co. v. Yates, 79 Fed 584 (CA 8th Cir 1897); United States v. Paddock, 68 F Supp 407 (WD Mo); 20 Am Jur, Evidence § 968, pages 816-818. True, they may be used to a limited extent in connection with the testimony of an expert witness, but they have no independent probative value. Western Union Telegraph Co. v. Ammann, 296 Fed 453 (CA3d Cir 1924). In my opinion the Manual for Courts-Martial does not change these settled rules of evidence.
To construe the judicial notice provision of the Manual as a license to admit in evidence, indiscriminately, every kind .of matter merely because it bears the imprimatur of the - head of a service branch opens the door to administrative prejudgment of the guilt of an accused. . Suppose, for example, that the Secretary of the Army published a technical manual on desertion, and in it he said that a much prolonged absence is any absence in excess of fifteen days. Are we to say that this statement establishes as a fact that the absence is “much prolonged” so that the court could then draw from it the inference of an intent to remain away permanently? See Manual for Courts-Martial, United States, 1951, paragraph 164a(3), page 313. United States v. Deain, 5 USCMA 44, 17 CMR 44. An emphatic “No” is the only answer to that supposition. The apparent purpose of the Manual’s provision on judicial notice is to obviate proof of facts which, in general, are notoriously known in the military establishment. It is a perversion of that purpose to use it as authority to take judicial notice of individual beliefs or opinions. See Gilbert v. Gulf Oil Corporation. 175 F2d 705 (CA4th Cir 1949). It was error, therefore, for the law officer to direct the court to take notice of the contents of the technical manual.
The accused did not object to the ruling of the law officer. Ordinarily, a failure to object to the admission of evidence constitutes a waiver of the right. Also, it might be argued that defense counsel was the first directly to open the door to a consideration of the technical manual. In his recross-examination of Major T. A. Hill, Neuropsy-chiatrist, who appeared as a rebuttal witness for the Government, the defense counsel asked whether “the rule of irresistible impulse, as far as Army psychiatry is concerned, is not governed by three principles.” Major Hill’s reply was, “That’s what the Manual says.” He was then questioned closely about these principles. However, it may justifiably be argued that the initial reference to the technical manual was made by the doctor. On cross-examination, he was asked if he believed that the accused was an “irrational person.” His reply led to the following colloquy:
“Q. You would say, would you not then, that he had at least some form of mental disorder which you psychiatrist [sic] recognize, would you not?
A. Within the terms of legal mental illness, no.
“Q. Now, you don’t pass upon the law in the case. Let’s get that straight, Major.
A. I am here to answer three questions. One, was this man sane, by that we mean, could he adhere to the right; two, could he tell right from wrong; and three, could he participate in his own defense. I am not here to answer anything else.
“Q. You’re not willing to answer anything else?
A. I don’t think that it’s necessary. “Q. Oh.
A. My interpretation of the Army Regulations are that I don’t have to answer anything else.
“Q. All right. Well, you don’t mind answering this, do you? You *372have a classification whereby there is a name for the condition which you have described as belonging to Kunak.
A. That is correct.
“Q. What is that name?
A. It is an emotional instability reaction.”
No matter who opened the door to consideration of the medical aspects of the technical manual, the doctrine of waiver should not be applied to the accused’s right to question the definition and explanation of the legal principles set out in it. The accused’s entire ease is based upon the defense of irresistible impulse. In his closing argument, the defense counsel strongly disputed the technical manual’s statement of the law relating to that defense. Under these circumstances it would be a manifest miscarriage of justice to hold that he waived his right to contest the correctness of the technical manual’s discussion. United States v. Fisher, 4 USCMA 152, 15 CMR 152. United States v. Ransom, supra.
Attempting to set out the law, the technical manual enumerates three criteria for the existence of an irresistible impulse. These are as follows:
. . Before testifying that an accused did the act because of an irresistible compulsion, the medical officer should be satisfied first, that the act is part of a repeated psycho-neurotic pattern; second, that the patient exhibited mounting anxiety or tension which was relieved by the theft, arson (or whatever the compulsion was) ; and third, that the compulsion generated by the illness was so strong that the act would have been committed even though a policeman had been at the accused’s side at the time the opportunity to commit the offense presented itself.” [TM 8-240, AFM 160-42, Psychiatry in Military Law, September 1950, paragraph 5a.]
On this appeal, the accused contends that the third requirement, which was also used by the law officer in his instructions on the issue, is an unreasonable and arbitrary limitation of the doctrine. In partial support of his contention, he argues that in a 1953 edition of the publication “the Army and Air Force backed away from this theory.” It may also be noted that in the previous publication on the subject, no mention was made of such a requirement. War Department Technical Bulletin, TB Med 201, October 1, 1945.
Certainly the Manual for Courts-Martial does not establish any such test. And, it seems that no such requirement has been articulated in any of the American jurisdictions in which the doctrine of irresistible impulse has been accepted. See Smith v. United States, 36 F2d 548 (CA DC Cir 1929); State v. Green, 78 Utah 580, 6 Pac2d 177; Parsons v. State, 81 Ala 577, 2 So 854. Annotations in 70 ALR 659, 173 ALR 391. 22 CJS Criminal Law § 61, pages 126-128.
Apparently the “policeman present” idea was first mentioned in an English case. People v. Hubert, 119 Cal 216, 51 Pac 329, 331, comments on the reference as follows:
. . Lord Bromwell, in a discussion of this subject, related the case in which a witness, to prove that a prisoner was so afflicted, related that he had once become violent and killed a eat, and said he believed the impulse could not be resisted by the defendant. His lordship asked if he thought he would have killed the cat if a policeman had been present. The witness answered, ‘No.’ His lordship then said he supposed the impulse was irresistible only in the absence of a policeman.”
Plainly Lord Bromwell’s supposition was not intended to establish a definitive test for the existence of an irresistible impulse. In any event, neither the English nor California law recognizes the doctrine, and it would be ironic indeed to use these cases as authority for the legal criteria for establishment of the defense.
Questionable validity also appears in the first of the technical manual’s standards for determination of the existence of an irresistible imnulse. Thus, in Bradley v. State, 31 Ind 492, 510, the Supreme Court of Indiana noted that to require a showing that the impulse was part of a repeated pattern “would *373find very few eases where it could he favorably applied. Before the defense could be available, the victim of the mania would doubtless have been confined for life, or executed, in an effort to acquire the habit.” However, I need not decide whether the standard prescribed by the technical manual is legally correct. At best, this publication gives only “lip service” to recognition of the doctrine of irresistible impulse as an established part of military law.
The majority hold that the technical manual is substantially a correct amplification of the Manual for Courts-Martial. I disagree. The Manual for Courts-Martial expressly makes the doctrine of irresistible impulse a part of the military law. The technical manual, however, virtually eliminates it from any possible consideration by a court-martial. In pertinent part, it says:
“. . . It is evident that oiily very rarely, if indeed ever, do offenses committed within the framework of a supposed compulsive psychoneurosis satisfy all three criteria, particularly the third.”
If this statement purports to set out the law, it severely limits the scope of the rule as prescribed in the Manual for Courts-Martial. The law officer was, therefore, bound to tell the court that it did not correctly define the law. On the other hand, if it is intended only to express an independent medical opinion on the impossibility of a true irresistible impulse, it should not have been admitted in evidence. See Northern Trust Co. v. Commissioner of Internal Rev., 116 F2d 96 (CA7th Cir 1940).
The military expert witnesses were uniformly agreed on the medical diagnosis. Under the circumstances of the case, this is indeed strange. It is almost axiomatic in the profession that “distinguished scientists of the mind . . . [testify] on both sides and in all directions with positiveness and conviction.” Holloway v. United States, 148 F2d 665 (CA DC Cir 1945), cert den 334 US 852, 92 L ed 1774, 68 S Ct 1507. As was noted by Dr. Henry A. Davidson, Chairman of the Psychiatry Section of the American Academy of Forensic Sciences:
“Psychiatrists thus disagree with one another. They answer one question by asking another. This is evidence of their honesty. In this kind of expert testimony, it is agreement, not disagreement which is suspicious. If footprint expert A says that the print was 12.5 inches long, and expert B says it was 14 inches long, then one of them is dishonest. It had to be one or the other. But, if Dr. X says that this patient could not grasp the implications of his act, while Dr. Z said he certainly could, then the disagreement is no evidence of dishonesty. Indeed, if one side brings to the stand a parade of psychiatrists all of whom agree perfectly on these interpretations, then I would be suspicious of their honesty. In many areas, the psychiatrist reports opinions rather than facts. This being so, we have to destroy the model which some psychiatrists and most lawyers have erected for the expert. According to this model, the expert examines a thing or a person and ascertains a simple truth which he reveals to the court. If this were the true state of affairs, lawyers would have the right to complain when psychiatrists disagree and psychiatrists would have the right to demand immunity from cross examination.” [Davidson, Psychiatrists in Administration of Criminal Justice. 45 J Crim Law, 12, 13 (1954).]
The accused contends that the unanimity of opinion of the service psychiatrists was effected by a “disciplined adherence” to the restrictive standards set by the training manual. Such coercive influence would unquestionably destroy the value of the expert’s opinion. It is unnecessary here to discuss the matter exhaustively but I am constrained to make- this observation:
The use of the training manual as advocated by the Government obviously circumscribes the testimonial freedom of any psychiatric expert. To that extent, at least, it is an illegal and unconstitutional invasion of the judicial process. See Alton v. Alton, 207 F2d 667, 673 (CA 3d Cir 1953); judgment vacated on ground cause become moot, 347 US *374610, 98 L ed 987, 74 S Ct 736. However, whether reversal is required on that basis alone, is a question I need not decide.
So, too, I need not consider the apparent misunderstanding by the military psychiatrists of their position as witnesses testifying about the mental state of the accused. From their testimony, it seems that they regarded their medical opinion of the accused’s mental capacity as determinative of his legal responsibility for the offense charged. The misconception plainly appears in the quoted part of Major Hill’s cross-examination. It also appears in the following portion of the cross-examination of Captain Schu-macher :
“Q. So if the court should find in this case, and of course I realize that you didn’t have the benefit of these findings, if the court should find in this case, from the evidence . . . that [stating certain facts] . . . would you then have an opinion satisfactory to yourself as to whether or not at the time of this shooting he was acting under an irresistible impulse?
A. No, because I don’t believe that the court can determine that. I think that a psychiatrist has to determine that.
“Q. You don’t believe that the court can find any facts then, do you T
A. I don’t believe that the court can testify as to the mental competency of a' man. I think that that takes a specialist.
“Q. You think that a psychiatrist is the only one who can do that?
A. Yes, sir.”
The military witnesses were in error in this respect. The ultimate decision of whether the accused pos- sessed sufficient mental capacity to be legally responsible for the offense charged is for the triers of fact. See Davidson, ibid, page 12-14.
In this case, I am satisfied to appraise the legal effect of the technical manual in the same way that I would appraise any other improperly admitted evidence. In the questioned publication, the highest authority in the court’s branch of the service expressed an opinion which virtually deleted the doctrine of irresistible impulse from military law. With that opinion in evidence, it is very doubtful that a court would attempt to find contrary to this official pronouncement, without some instruction on its true nature as opinion, not fact. Unexplained, the training manual seriously embarrassed the accused in' his defense. I would, therefore, set aside the findings of guilty and order a new trial.