(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I do not share the regrets of the Chief Judge and I do not join in his reasons but his position has consistency in its favor. Certainly, if each future case is to be decided on the basis of whether the military experts in the *59field of psychiatry do or do not understand the principles which they teach and promulgate, then he has the best side of the argument. However, his assertions do not encourage my support because a careful reading of the opinions in United States v. Kunak, 5 USCMA.346, 17 CMR 346; and United States v. Smith, 5 USCMA 314, 17 CMR 314, will disclose that the author of the present base opinion has not changed the principles a majority of the Court therein announced. All he has done is to escape their effect by a side door exit which can be labelled the door for confused experts. Obviously, his purpose is to differentiate this case from those on a narrow ground, but one which I do not find supported by the record. Because of that and because this result is reached through a three-way conceptual approach, with no new principles of law established, an extended discussion of the questions certified and the errors assigned is unnecessary. However, I consider it advisable to place on record my reasons for not joining in an order directing a rehearing in this case.
The disagreement between Judge Brosman and the writer narrows to the single question of whether the psychiatrists who testified for the Government misunderstood one criterion proposed as a means of measuring an irresistible impulse. I conclude they did not and I hope to support my views by a reference to their testimony. In addition, while I will not develop the point, I believe it distinctly arguable that even assuming the medical experts favorable to the Government misunderstood the test, the confusion was beneficial to the accused.
It is of singular importance to note that four psychiatrists and one psychologist testified at the trial. They were stationed in the same military community, all worked together on this particular case, and each had the benefit of the findings and conclusions of the other. Their education, training and experience was extensive and their qualifications to understand and deal with the principles of psychiatry must be conceded by all. One psychiatrist and one psychologist testified in support of the accused. Two psychiatrists testified partly in support of the Government’s cause and partly in opposition thereto. One psychiatrist testified solely in favor of the prosecution’s theory. It could happen, I suppose, but it is a bit unusual that only those who testified that the accused was sane are charged by the majority opinion with having misunderstood a principle of psychiatry which dates from the time of the McNaughten rule. They alone are charged with misapplying the policeman at the elbow illustration found in the Air Force Technical Manual. While this case turns on the possibility of misinterpretation found by the majority, I am perfectly willing to accept as my first supporting witness, Dr. Heisler, a very fine defense witness, who testified to the effect that the principles outlined in the Air Force Technical Manual are easy to work with. He had this to say on the matter:
“Q The defense counsel has cited certain textbooks with which you have said you were familiar, as authorities in the field of psychiatry. Are you also familiar with Air Force Manual 160-42, Psychiatry in Military Law?
A Yes, sir.
“Q Do you consider that to be an accurate statement of psychiatry as applied to military law?
A To the military law, yes. It’s a regulation which we must follow.
“Q Are you in agreement with it?
A Essentially, yes. I believe that —let’s put it this way: one can easily work within the framework of the interpretations given in that manual, and we make every attempt to do so.”
Moreover, in answers to questions propounded by defense counsel — and, parenthetically, I add that all of the expert witnesses were entitled to exercise the same mental freedom exer-cisd by Dr. Heisler — he replied:
“Q Doctor, do you think it would have made any difference on the night of 10 March, to use an old and classic example, if a policeman had been standing near her?
A I don’t think it would have made *60any difference, short of physical restraint.
“Q Doctor, in your examinations and conferences with her, has Mrs. Covert ever made any statement as to whether or not any person who might have been standing there would have influenced her or not?
A Yes; she did.
“Q What did she say, Doctor?
A Well, the first occasion when it came up more or less spontaneously, she stated — I think, being a Southerner — it wouldn’t have made any difference whether General Sherman had been standing there or not, and on subsequent occasions, taking into consideration the legal questions involved — this was a couple weeks later — I asked her specifically about the question relating to a policeman being there, and she felt that she would not even have noticed the policeman. She interpreted the question herself on that occasion as meaning he would physically restrain her, which makes the answer obvious that she herself felt it, which corroborates my own impression that, short of physical restraint, she would neither have noticed or been deterred by the presence of any other individual, as she was not deterred by the presence and very close approximation of her two children to the scene of this act.”
As my next supporting witness, I rely on Dr. Adelsohn, a psychologist, who, like Dr. Heisler, testified definitely and positively that Mrs. Covert was insane. He seems not to have been mentally disciplined by the Technical Manual in the expression of his views and to have understood how the test could be applied to establish insanity. This is his testimony:
“Q Are you familiar with the term ‘irresistible impulse’ ?
A Yes; I am.
“Q Do you think that the definition of irresistible impulse is accurately stated when it is stated that it is an act that a person would do even if a policeman were at their side?
A I am acquainted with that, the use of that criterion.
“Q You believe that is an accurate definition of what it is?
A I consider it a rather accurate definition; yes.
“Q Do you believe that an irresistible impulse is an act that a person would commit even if there were policeman [sic] at their side ?
A It appears to me that the policeman being alongside is merely one of many possible criteria by which one can determine whether an act is motivated by an irresistible impulse. In other words, I don’t believe I can accurately answer your question very flatly. May I try to clarify that?
“Q Go ahead.
A I believe there are other conditions that can — other ways of determining whether an impulse is an irresistible one. The policeman being alongside is certainly a perfectly legitimate one, I feel.
“Q Are you familiar with Air Force Manual 160-42?
A Not well, but I have read it.
“Q Calling your attention to paragraph 5c, wherein irresistible impulse is defined as an act that a person would not have committed if there had been a military policeman at his elbow; do you believe that that is a complete and accurate definition of the term?
A Yes; I do. I accept it.”
If, as these defense witnesses testified, the test is accurate and easy to apply, I wonder why the testimony of the two experts whom I catalogue as testifying partly to the benefit of the accused and partly to assist the Government is interpreted as showing confusion. I place Doctors Martin and Graves in sort of a neutral class for the reason that, while both testified the accused could distinguish right from wrong and adhere to the right, each expressed an opinion that her mental faculties were so impaired that she did not have the capacity to premeditate. However, their post-trial affidavits show clearly they were favorably inclined toward the accused. While Dr. Graves was not asked to express an opinion on the policeman at the elbow test, I find these questions and answers in the record:
“Q Do you believe, from your observation of the accused, that the act *61she committed on the 10th of March was the result of an irresistible impulse?
A Irresistible impulse is not a term that we use in psychiatry. I would have to ask you to define what you mean by ‘irresistible impulse’ before I could answer your question, I think.
“Q I call your attention to the definition of irresistible impulse in Air Force Manual 160-42, Psychiatry in Military Law, to paragraph 5c, which sets out the example that the accused would have committed the act even if there had been a policeman at her elbow as being an example of an irresistible impulse; and with that definition in mind, I ask you, do you feel that the accused acted as a result of an irresistible impulse?
A No.
“Q Do you feel that if a policeman were present, or someone else were present, she would have refrained from the act?
A Yes, I do.
“Q You have stated that she was able to adhere to the right, had she chosen to; is that correct?
A Yes.”
This witness had testified that the accused could distinguish right from wrong at the critical time. He followed that testimony by asserting that Mrs. Covert could adhere to the right and he was then asked how he made that determination. In substance he stated that she committed the offense under strong emotional pressure but he concluded she could adhere to the right because her whole life’s pattern was to that effect, and he found nothing which would indicate that at the time of the killing she would not be guided by her previous pattern of behavior. If that was the basis for his conclusion, the one Technical Manual criterion played no part.
In connection with the testimony of Dr. Martin at the trial, the policeman at the elbow test seems to have been of little moment because if it was referred to, it was mentioned only once. That particular criterion is probably involved in the following single question and answer:
“Q In answer to one of the defense counsel’s questions, I believe the gist of the answer was that the rightness or wrongness of the act did not influence her behavior. Do you mean by that answer that her act was an irresistible impulse, as defined by Air Force Manual 160-42?
A With that qualification, as defined by this manual, I do not feel that it was what they call an irresistible impulse.”
As I hope to develop later, while Dr. Martin’s ultimate conclusion may have been influenced in part by this test, he did not complain because he misunderstood it, but because he believed the general principles of psychiatry set out in the Technical Manual were too restrictive. Beyond question he asserted that the accused could distinguish right from wrong and that her ability to adhere to the right was only partially impaired and not totally abrogated. He, however, subsequently sought to make that partial impairment sufficient proof of insanity to exculpate the accused from the legal wrong of the homicide— a position a majority of this Court has refused to take.
Major Troy was the one expert who testified that Mrs. Covert had the mental capacity to form an intent to kill and to premeditate and that she was sane and responsible for her act. He was interrogated about the policeman at the elbow test and he had this to state:
“Q Are you familiar with the provisions and standards laid down of mental responsibility in Air Force Manual 160-42?
A Pretty well.
“Q Under the standards laid down in that manual and the definitions therein, do you consider that at the time she committed the act on 10 March 1953, she did so as the result of an irresistible impulse, as therein defined?
A No; I do not believe it was an irresistible impulse.
“Q You believe she would have committed the act had there been a policeman at her side?
*62A No; I do not believe she would have.”
He was cross-examined at some length on the general principles of psychiatry as announced in standard works and he showed substantial agreement with those principles but he was unshaken in his belief as to the sanity of the accused. Nothing in his direct or cross-examination leads me to conclude that he did not well and truly understand and use the criterion. Apparently I am not alone on this conclusion as my associate has not persuasively presented him as one of the experts operating in the area of confusion.
I have searched the record of trial rather diligently and I am unable to find any expert who claimed he was confused by the criterion or that he misunderstood its underlying concept. No one at the trial level seemed to have been conscious of any misapplication of the test and all must have considered it in arriving at their conclusions. Those who were asked, testified it was appropriate and accurate, and they apparently used it to their own satisfaction. No one expressed any reservations about its application until after findings and sentence and then the findings brought forth some protests. I, therefore, pass on to consider the post-trial affidavits. Before doing so, I prefer to mention again that the training and qualifications of the five experts who were called as witnesses cause me to wonder how doctors who were so well trained, educated and experienced in the field of psychiatry could misunderstand a basic principle which has long been a cornerstone in determining mental responsibility. As a general observation, I would say, in the light of the education, training and experience of these experts, and from the amount of time they expended in examining this accused, I believe this case is a poor vehicle for supporting a contention that those who testified could not interpret and apply properly the various criteria by which the ir-resistibility of an impulse may be tested.
There were post-trial affidavits furnished by Doctors Martin, Graves and Adelsohn. Dr. Adelsohn in no way questioned the Technical Manual and he merely corroborated his in-court testimony. At the trial and in his affidavits he stated the accused was suffering from “psychosis, specifically, paranoid schizophrenia.” Furthermore, in his post-trial statement he related his disagreement with certain other expert witnesses by saying he could not concur with “a finding of neurotic depression, as that is counter-indicated by the bulk of the data I have gained from the patient’s responses, and I am of the opinion that this data was not effectively or intensively examined by the members of the Sanity Board.”
Dr. Graves’ views, ■ as expressed in his post-trial statement, can best be stated by quoting part of his affidavit. It provides:
“I should like to make clear to the reviewing authority, that which I apparently did not make clear to the members of the court, that the members of the Sanity Board were, of necessity, governed in making their decisions by the provisions of Air Force Manual 160-42. It has been difficult for me, and I assume for other members of the Board, to clearly express our feelings about this case within the framework of this Air Force Manual. According to the provisions of this Manual, I, as a Psychiatrist, had no choice but to find this individual sane. In the field of psychiatry however, more than in any other field of human knowledge, it is impossible to express the complexities of human behavior in terms of black and white. As a psychiatrist it is my training and my professional function to view all human behavior in its proper shade of grey. I clearly understand that it is the purpose and duty of the members of the court to consider my evaluation of the ‘shade of grey’ terms. However, it does not follow that because the patient was not insane at the time of the commission of the offense that she must therefore necessarily have been guilty of an [sic] conscious premeditated crime. There is, I must state again, no psychiatric evidence of any sort which would lead me to be*63lieve that there was sufficient degree of conscious participation in the planning and execution of this act to refer to it as a premeditated crime. To consider it as such would in my opinion, from considerable knowledge of the past history and personality structure of this person, be a clear cut miscarriage of justice.”
I cannot find in that statement any attack on the policeman at the elbow test and the restrictions imposed by the Air Force Manual embrace principles far more important than the illustration of an irresistible impulse given there. As I read this witness’ trial testimony, he states unequivocally that the severe emotional stress under which the accused was laboring only impaired her mental capacity to know right from wrong and adhere to the right. To support his conclusion he used several criteria. His affidavit in no sense undermines his conclusion on partial impairment and its principal attack centers on the finding of premeditation.
Dr. Martin’s post-trial affidavit contains no assertions that he misunderstood the Technical Manual and only by asserting that he misunderstood several criteria mentioned by him can that conclusion be reached by the majority opinion. He should be the best witness to his own confusion and as I read the record, I believe he well understands the purpose and intent of the doctrine announced by the Air Force. He does not misunderstand, he just honestly disagrees. He does not say that the policeman at the elbow test is different from a fear of detection test. As a matter of fact he does not mention the latter, but if he is at all familiar with the 1950 Technical Manual, and I must assume he is, he should be well aware that the sentence which specifically deals with the policeman at the elbow test is followed by this statement: “No impulse that can be resisted in the presence of a high risk of detection or apprehension is really very ‘irresistible’.” Moreover, his enumeration of several different criteria does not mean one is the exact counterpart of the other. More probably he was expressing different rules by which he measured his conclusion that the accused did not reach the irresistible impulse stage. He, too, positively testified — and this conclusion is not modified by his subsequent statement — that the mental impairment of the accused was only partial. He might like to escape the principle that a partial impairment does not render the accused mentally irresponsible, but I had thought a range as wide as he probably desires to roam had been narrowed by our decisions in Smith and Kunak. Now I find it is widened by a different method of approach. It may well be that I, in turn, misunderstand his purpose; but, in my opinion, what he is seeking in the way of a principle is this: That if the accused is suffering from a dissociative reaction, and it is not of sufficient severity to deprive her completely of her ability to adhere to the right, the psychiatrist should be permitted to erect his own standards of insanity. He would not testify that Mrs. Covert was psychotic and neither would he testify that her personality breakdown resulted in a total impairment of her capacity to know right from wrong or adhere to the right. He kept her within the area of sanity as we have defined it and yet he would like to remove her. His complaint, closely analyzed, is that a psychiatrist should be permitted to base a conclusion of insanity on his finding that an accused is not fully responsible for his or her behavior.
Dr. Martin sums up his belief in his own words and they support my assertion. He displays his desires in the following words:
“All of my feelings about this case ,can be summed up in the statement that I believe Mrs. Covert was what I would call ‘temporarily insane’ on the night of 10 March 1953. Since this is a legal and not a psychiatric term, I may have the wrong understanding. The term ‘insanity’, to me, means that the individual is not responsible for his or her behavior. My understanding of ‘temporary insanity’ does not make it synonymous with the term ‘psychosis’. There are a number of mental or emotional reactions not included in Air Force Manual 160-42 which I could classify as a form of insanity from my understanding of the term that would more adequately *64describe the condition of Mrs. Covert on the night of 10 March without saying that she was psychotic.”
I realize it is possible to take statements out of context and use them to support a theory, but a fair reading of this record convinces me that confusion concerning certain principles of psychiatry did not exist in the minds of these experts. What I do find in the record is a disagreement in the ultimate conclusions of the experts. The disagreement arises solely over whether Mrs. Covert’s depressed reaction had reached such a level that there was a total abrogation of her mental capacity to adhere to the right or whether there was a partial impairment which left her some degree of choice.
Doctors Heisler and Adelsohn were convinced completely that Mrs. Covert was psychotic and acted as an automaton; that nothing short of physical restraint would have prevented this killing; and that she was legally insane. Doctors Martin and Graves would not go that far as they concluded there was only a partial impairment of the capacity to adhere to the right. They believed that her condition could not be characterized as psychotic and that she was legally sane, but stated that if they were free to use their own standards for sanity, they would find her insane. Dr. Troy stood off by himself as he concluded there was no impairment in her capacity to know right from wrong and adhere to the right and she was sane and could premeditate.
In the light of our previous holding, I fail to see how Dr. Graves and Dr. Martin can be freed from some discipline by our pronouncements on psychiatric principles. Both testified that the accused could distinguish right from wrong and adhere to the right. At best they could only find a partial impairment in her mental capacity. However, not only does the Technical Manual set out the principle that partial impairment may not be equated to mental irresponsibility, but the Manual for Courts-Martial, United States, 1951, has the same provision. In paragraph 1206, I find the following:
. . To constitute lack of mental responsibility the impairment must not only be the result of mental defect, disease, or derangement but must also completely deprive the accused of his ability to distinguish right from wrong or to adhere to the right as to the act charged. Thus a mere defect of character, will power, or behavior, as manifested by one or more offenses, ungovernable passion, or otherwise, does not necessarily indicate insanity, even though it may demonstrate a diminution or impairment in ability to adhere to the right in respect to the act charged. Similarly, mental disease, as such, does not always amount to mental irresponsibility.”
In United States v. Smith, supra, Judge Brosman, speaking for the majority, had this to say about that provision:
“The Manual for Courts-Martial emphasizes that ‘to constitute lack of mental responsibility the impairment must not only be the result of mental defect, disease, or derangement but must also completely deprive the accused of his ability to distinguish right from wrong or to adhere to the right as to the act charged.’ Paragraph 1206. (Emphasis supplied.) Thus, mere impairment of the ability to adhere to the right does not constitute a defense, although it may form a mitigating circumstance. Paragraphs 120, 123. The emphasis on complete inability to adhere to the right renders it difficult to deem mentally irresponsible an accused person who would not have performed the act had there been an appreciable likelihood that he would be arrested and punished.”
Even though that principle may, in the words of the psychiatrists, be too narrow and restrictive, I believe we have placed our approval on it and I have no desire to retreat. That concept, of course, narrows the area in which medical experts may operate, contrary to the wishes of some of them, but it furnishes a satisfactory staff for the experts and the Courts to lean upon.
Finally, in United States v. Smith, supra, a majority of this Court reached *65the conclusion that the provisions embracing the policeman at the elbow test and the fear of detection test, while differing somewhat in wording, possessed an identical core of meaning. If we could so conclude from our understanding and knowledge of the principles of psychiatry, I am willing to concede the experts who testified in this instance had the perspicacity to reach a similar conclusion long before this case was tried. If I must choose on the basis of this record, I would conclude that any claimed misapplication of principles is imagined at this level. For the foregoing reasons, I would answer the questions of The Judge Advocate General of the Air Force and dispose of the assignments of error by reversing the finding of premeditation, affirm a finding of unpremeditated murder and return the case to the board of review for reconsideration of the sentence.