(concurring in the result) :
I concur in the result.
■ Judge Brosman sets forth a premise which has been accepted by a number of courts and some text- writers and even though it may be conceptually sound, it seems to me to be a step backward when applied in military law. In United States v. Gibson, 3 USCMA 746, 14 CMR 164, I concluded that when the law officer ruled that the warning requirement of Article 31, 50 USC § 602, had been satisfied, that ruling was beyond the reach of the court-martial members. That hardly meets squarely the present issue. Certainly consideration of admissions and confessions obtained by possible coercion or undue influence by court-martial members when determining the guilt or innocence of the accused may pose different problems from the weighing of statements given by an accused without warning. The difference seems to be recognized by the provisions of the Manual which deal specifically with the admissibility and consideration of involuntary confessions and admissions.
The author Judge has quoted paragraph 140a of the Manual and it is repeated here solely as a matter of convenience. It reads as follows:
“The ruling of the law officer (or of the special court-martial) that a particular confession or admission may be received in evidence is not conclusive of the voluntary nature of the confession or admission. Such a ruling merely places the confession or admission before the court, that is, the ruling is final only on the question of admissibility. Each member of the court, in his deliberation upon the findings of guilt or innocence, may come to his own conclusion as to the voluntary nature of the confession or admission and accept or reject it accordingly. He may also consider any evidence adduced as to the voluntary or involuntary nature of the confession' or admission as affecting the weight to be given thereto.”
I do not find any real inconsistency between this paragraph and Article 51(6) of the Code, 50 USC § 626. The Code provides that the rulings of the law officer on interlocutory questions, with two exceptions, are final. The admissibility of evidence is an interlocutory question and a ruling of a law officer on the competency of a confession is not included in the exceptions to finality. Assuming he rules rightly in admitting a confession, that paragraph states the whole inculpatory statement may be rejected by a court-martial member if he concludes it was unlawfully coerced or illegally induced. A fair interpretation of the language would permit a member to determine the voluntariness of a confession as his *747first order of business during deliberations. If he finds it to be involuntary he may reject it in its entirety while if he concludes that it was given freely and voluntarily, he may accept it at face value. But my construction of the language used leads me to believe that the framers of the Manual intended to say that where a court-martial member concludes that a confession is involuntary, he is not thereafter free to assess its trustworthiness arid, in turn, the weight to be accorded to it. If they did not intend to so state, then I am at a loss to understand why the inconsistency in the language. It makes little sense to say a confession can be-rejected and yet weighed for its truthfulness and if found not to be false, it may be used to support a finding. At the very least that would in all instances result in an acceptance of the evidence and an assessment of its truthfulness. If it were corroborated by some other evidence it would never be rejected. I do not say a contrary interpretation is impermissible but it very effectively chisels away a right running to the accused without any compensating benefit.
One further reason which impels me to shy away from the asserted interpretation is that it is contrary to the construction which has been placed upon the Manual language by the military services, which construction is currently being followed by them. The Department of the Army Pamphlet No. 27-9, The Law Officer, August 1954, Appendix XVII, page 127, offers the following form instruction as a guide to law officers in this area:
“. . . Each member of the court, in your deliberation upon the findings of guilt or innocence, may come to your own conclusion as to the voluntary nature of the statement. You may accept the statement as evidence only if you determine that it was voluntary. If you do not determine beyond a reasonable doubt that the statement was voluntary, you must reject it and disregard it as evidence in the case.” [Italics supplied.]
Many jurisdictions use the same form of charge to a jury and if the armed services find the instruction acceptable and they are willing to be liberal to an accused, I see no point in requiring them to narrow their interpretation to his detriment.
Now for the reasons which lead me to concur in the action taken by the Court here. To dispose of this case, I need go no further than to hold that defense counsel here effectively waived any question of the accuracy of the law officer’s instructions concerning this confession. A cursory reading of the instruction given discloses that it would meet minimal requirements if the word “voluntariness” was substituted for the word “credibility.” Defense counsel expressly declined to object to the charge as given and failed to mention the deficiency now asserted as grounds for reversal.
Where an instructional issue involves only a matter of clarification or amplification, I am unwilling to permit defense counsel to raise it for the first time on appeal.