(concurring in the result):
This cause reached this Court on the simple issue of whether appellate proceedings should be stayed because of the insanity of the accused or whether we have the authority to adjudicate the certified questions and the merits of the appeal. The Chief Judge concludes the matter should proceed in the ordinary course, while the writer reaches a contrary conclusion. Judge Brosman, sensing disaster ahead if we proceed, elected to divide his attention. He joins the Chief Judge in saying we can continue to the end, but he prefers not to. Accordingly, he joins me in result, but conceptually he is far removed from both his associates. In the end, the only rule of law established by the Court is that insanity after findings and sentence does not stay appellate processes, and to that issue I devote the major portion of my opinion. I will, however, mention why I refused to join Judge Brosman in his result which primarily seeks a rehearing.
His basic premise is that we have discretion to decide or not to decide. I disagree. Every accused, who appeals, is entitled, as a matter of right to have his case decided, unless we are prohibited by law from exercising jurisdiction. We cannot tell a sane person that we exercise our discretion not to decide his case; and if the rights of this accused are to be measured by the standards of an ordinary appellant, then he is entitled to the benefits of a final - adjudication. If he falls in a preferred class, it is because the law says, as I read it, that a court cannot adjudicate a person’s rights while he is insane. If, as my good associate states, there might be prejudicial error in the record and this accused might be entitled to the benefits of reversal, why is he not entitled to a determination of that possibility? I did not understand we could be so selective. Obviously, the answer must be that he might be prejudiced. However, if the power to decide exists, *128it must be exercised, whether it is beneficial or harmful to an accused. It is a strange concept indeed that we can look at a record and, by measuring its impact on an accused, determine whether we will decide his fate. The net result of that holding is painfully apparent in this instance. Because Judge Bros-man has his own psychiatric evaluation of the accused, which is contrary to every bit of medical testimony in the record, and prefers to afford him an opportunity to try the issue at the trial level — an unjustifiable largesse, opposed by both the Chief Judge and myself, and, so far as I know, a concept hostile to appellate proceedings — he joins me in staying proceedings. I suppose it is fair to state that implicit in that view is a belief that our will to proceed is determined by our individual conclusions of guilt or innocence.
Both the Chief Judge and Judge Bros-man mention, as an argument in favor of proceeding, the contingency of cost to the Federal Government. That is a poor makeweight to support their arguments. A soldier’s life should not be weighed against monetary considerations, and if Judge Brosman’s views are closely analyzed, it will become apparent that he argues against himself. If a rehearing was granted, this accused could not be retired so long as he remains insane. Every authority is to that effect. The accused would, therefore, stand uncon-victed, and he would be entitled to every benefit running to an enlisted man. I wonder if the cost would be decreased in that event. Be that as it may, this man became insane while he was a member of the Army and unless he is executed, an impossibility unless his sanity is restored, he must be cared for at public expense. The rights of his dependents, if any, should be determined by another, and proper, tribunal.
My associates seem to express a paternalistic attitude toward this accused. They assert the President can prevent his execution by commuting a death sentence if reimposed. They can extend his time to petition for new trial, they can select him the finest counsel, and they are willing to protect his every substantial right, except one. That one being his right not to have his life or freedom forfeited while he is in such a mental condition that he knows not what is being done to him and cannot assist in protecting the most valuable possessions he enjoys. The plain unvarnished truth is that if we were to proceed, the probabilities are that this accused would have a death sentence reimposed on him while he is insane. I pose, but do not answer, this question. Assuming this case is returned to a board of review, can a factual determination be made while an accused is insane? Using my solution we would never reach that question, nor the many other doubtful ones which are raised for those who must grapple with the rule of law announced by the majority.
One further matter bears mentioning before I set forth my affirmative views on why all proceedings should be frozen in their present status. This accused committed a heinous offense. He has had his day in the trial court and before the board of review concerning his responsibility for the crime. He was examined prior to trial and the psychiatrists were unanimous in their conclusion that he was sane at the time he committed the offense and at the time he was tried. Since being incarcerated he has been under almost constant observation by mental experts. Unanimity on his sanity on both those occasions is presented by this record. The very experts who assert he is now insane all agree that he was not so prior to and when he was tried. I do not pit my beliefs against theirs and I am certain they gave consideration to the progression of his mental disease. They ought to be able to fix his rate of decline better than I, and I prefer to accept their judgment. They, too, were informed of any bizarre conduct on his part and I have no reason to suspect that they did not weigh it in arriving at their conclusions. Accordingly, there just is no issue of mental responsibility posed by this record. Based on what is before us, the accused is not entitled to freedom from conviction via a rehearing and neither should appellate review be undertaken while he is insane. Both parties are entitled to justice at our hands and *129neither should be prejudiced on the merits by after-acquired insanity. The only way I can find which does that is to stop all proceedings where they are, and if sanity is later restored, then to pick up and continue on. In that way a condition over which neither party has control does not legally work to the detriment of either. To do otherwise is bound to prejudice either the Government or the accused, and possibly both.
As the starting point for my discussion of the effect of intervening insanity on judicial proceedings, I shall turn back to the common law. The humanities of that time decreed that one who was sane at the time of the offense, but who later became insane before or during the trial, could not be tried at that time and the proceedings had to be suspended until his mental capacity had been restored. In Reg v. Berry, 1 QB Div 447, the following principle was announced:
“Further, I believe it to have been the law from the earliest times that if it be found, at the trial of a prisoner, that he cannot understand the proceedings, the judge ought to discharge the jury and put an end to the trial, or order a verdict of not guilty. The jury here have found the prisoner incapable of understanding, and it needs no argument to show that under such circumstances he ought not to be convicted.”
The substance of that rule is confirmed in a quotation found in 44 CJS, Insane Persons, § 127, page 283. There I find the following language:
“At common law, and in some jurisdictions by express statutory provision, if a person becomes insane after the commission of a crime, he cannot be required to plead or be tried while he is in such condition. So, also, if accused becomes insane during the trial, the proceeding must stop. Such insanity, however, does not abate or otherwise dispose of the prosecution, except to delay it, and accused may be tried if he afterward becomes sane again.”
In those jurisdictions which have enacted statutes, the enactments, generally, do no more than restate the common-law rule. In State v. Helm, 69 Ark 167, 61 SW 915, the court stated:
“The intention of the statutes of this state and of New York is the same. What was said of the New York statute in Freeman v. People can be truthfully said of the statute of this state. The statutes of both states, so far as they severally extend, are enactments of the common-law rule which forbids the trial of any person, or the pronouncement of judgment against him, while he is in a state of insanity. The reason of the rule for prohibiting the trial while he is insane is the incapacity of one who is insane to make a rational defense, and for prohibiting the pronouncement of judgment against him while he is insane is, if sane, he might be able to show cause why judgment should not be pronounced against him, but, being insane, though having sufficient cause, he might not make it known.”
A similar principle has been announced in the District of Columbia. The United States Court of Appeals for the District of Columbia in Haislip v. United States, 129 F2d 53, (1942) stated:
“The lunacy inquiry of July 26, 1939, was for the purpose of determining whether the defendant was then capable of understanding the nature and objects of the proceedings so as properly to conduct his defense. The verdict of insanity spoke as of that date and was a legal determination that appellant was not then mentally qualified to stand trial. When, thereafter, he was restored to sanity, the certificate of the superintendent to that effect removed the previous bar. The sole effect of these sections is, in a proper case, to suspend the criminal proceedings during the period of insanity. The jurisdiction of the court continues, and when sanity is restored the case may proceed as if the interregnum had not occurred. Wagner v. White, 38 App DC 554, 558.”
The concepts found in the previously *130cited authorities apply at the trial level but they do not pass squarely on the problem now confronting this Court. However, they would preclude a rehearing. In those cases the mental incapacity of the accused occurred at such a time as to render him incapable of presenting evidence and information necessary to enable him and his counsel to present a rational defense, to advance reasons why judgment should not be rendered against him, and to submit facts which would support mitigation of the sentence. In the instant case, no contention is made, except by Judge Brosman, that the accused was not sane at the time of trial and judgment, nor was the issue of insanity raised before the court-martial or the board of review. Thus, I have before me in this instance a complete record of the trial and the intermediate appellate hearing in which the accused participated while he was legally and mentally competent. I am, therefore confronted squarely with the question of whether the rule that intervening insanity stays proceedings should be inclusive enough to bar all unfinished steps in appellate review.
When I pass on from the trial phase to the last step in a criminal proceeding, I find respectable authority to guide me. Again, at common law, if insanity intervened between sentence and execution, the latter was suspended. That principle, as stated in Blackstone’s Commentaries, and quoted by the Supreme Court of the United States in the case of Nobles v. State of Georgia, 168 US 398, 42 L ed 515, 18 S Ct 87, is as follows:
“ ‘Also, if a man in his sound memory commits a capital offense, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed; for, peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.’ ”
The reasoning used to decide the foregoing cases might be construed either as authority for the converse propositions that we should suspend-proceedings entirely or that we should permit the appeal to continue, and let others suspend execution. That contradictory construction follows from the fact that appellate review, as we now know it, did not exist at common law and the early authorities skip the appellate processes between sentence and execution. Interpreted all inclusively, the cases seem to say that all existing judicial proceedings should be suspended by the insanity of a defendant, and that would include each and every divisible step in an appeal. Interpreted narrowly, it can be asserted that they hold only that those judicial proceedings which required the personal presence of the defendant must be stayed. Before expressing my reasons for preferring the more liberal interpretation, I mention briefly one further restriction which appears to be implicit in the early cases. The rule as stated in Blackstone’s Commentaries, supra, applied the suspension of execution to cases involving only capital offenses. Apparently in noncapital cases execution was not suspended when the insanity arose after sentence. That general principle is found stated in 24 CJS, Criminal Law, § 1619, on pages 197, 198. There it provides:
“At common law, and also under some statutes, where accused becomes insane after the sentence, usually for a capital offense, has been pronounced, its execution should be stayed while he continues in that condition.
“Unless the matter has been otherwise adjudicated or control assumed by the appellate court by supersedeas or otherwise, the granting of such stay rests largely within the inherent power and discretion of the trial court, or other official authorized to *131suspend the execution.” [Emphasis supplied.]
Weihofen, in his work on “Mental Disorder as a Criminal Defense,” 1954 ed, pages 464-465, has this to say-on that subject:
“The rule applies only to capital cases. The common law made no provision for suspending execution of sentence because of insanity where the punishment was less than death. Modern statutes usually provide that if a convict serving sentence is found by the prison warden to be insane, he may be transferred to a proper hospital or ward for insane criminals.” .
In Kelley v. State, 157 Ark 48, 247 SW 381, the accused was convicted of second degree murder and sentenced to confinement in the penitentiary. One year after his conviction he filed a petition stating that he had become insane and requesting that the court impanel a jury to inquire into the question of his sanity. He also asked that the execution of the judgment be postponed or suspended and that he be committed to the State Hospital for Nervous Disorders for treatment instead of being sent to the penitentiary. The lower court denied the petition, and the Supreme Court of Arkansas, after quoting the rule as enunciated by Blackstone, stated:
“There is nowhere found a statement of any rule of the common law which would extend relief in a felony case of less degree than a capital offense ; the reason evidently being that it is a rule of extreme emergency to prevent the execution of the death penalty on an insane felon.”
The principle, limiting the doctrine to capital cases, is not followed generally in Federal jurisdictions. The Circuit Court of Appeals, Sixth Circuit, in Youtsey v. United States, 97 Fed 937 (1899), which involved charges of embezzlement, not a capital offense, employed the use of the broad principle. It stated:
“. . . It is fundamental that an insane person can neither plead to an arraignment, be subjected to a trial, or, after trial, receive judgment, or, after judgment, undergo punishment.”
And again in Forthoffer v. Swope, 103 F2d 707 (CA 9th Cir) (1939), the principle that punishment should not be imposed upon an insane convict was applied in a case where accused was charged with assault with a dangerous weapon.
It must be conceded that when dealing only with the execution of a sentence there may be a logical reason for differentiating capital from noncapital cases. In the latter category, in most jurisdictions, the defendant is confined, whether sane or insane, but his place of confinement may be different. Instead of a penitentiary being his place of residence, he might reside in a mental institution. He is effectively denied his freedom in either event and, therefore, the reason for staying execution is not too compelling. If he regains his sanity, he is alive to assert and establish any claim he may have as to why execution of his sentence should be barred. However, in a capital case either the execution is suspended or the defendant is dead. It is then too late for him to come forward with reasons to stay his or the sentence’s execution.
I am sure that within the military there are administrative and medical regulations which provide a procedure by which an accused who becomes mentally incapacitated after conviction and sentence can be transferred from his place of incarceration and placed in an institution where proper medical treatment is available. As a matter of fact that was done in this case, since the accused was transferred from the United States Disciplinary Barracks at Fort Leavenworth, Kansas, to Fitz-simons Army Hospital at Denver, Colorado, some time between August 10 and September 10, 1953. However, for reasons peculiar to the military services, particularly with respect to the limitations placed on death sentences, the lack of authority of judicial tribunals to suspend the execution of sentences, and the grant of power to all reviewing authorities to consider originally any issue of insanity, I believe the Federal rule to be the one best suited to-meet the *132requirements of military law. I, therefore, conclude that there should be no difference between capital and non-capital cases in applying the rule in the military judicial system that all proceedings should be stayed.
There is a dearth of authority on the refined question of whether appellate proceedings freeze immediately when insanity is established. Generally, the matter is governed by specific statutes in the jurisdiction which prescribe the manner and forum in which the issue may be raised. Cf. Johnson v. State, 97 Ark 131, 133 SW 596; State v. Superior Court, 139 Wash 125, 245 Pac 929; Green v. State, 88 Tenn 634, 14 SW 489; Solesbee v. Balkcom, 339 US 9, 70 S Ct 457, 94 L ed 604. However, there are two jurisdictions which, even though they have statutes governing their particular proceedings, throw some illumination on the problem.
The courts of the State of Texas have adopted the rule that all proceedings, including appellate review, are stayed by intervening insanity. The statute of that state provides as follows:
“Upon the trial of an issue of insanity, if the defendant is found to be insane, all further proceedings in the case against him shall be suspended until he becomes sane.”
That provision is strikingly similar to one found in the Manual for Courts-Martial, United States, 1951, ante, and it has been held by the Texas courts to relate to proceedings in the appellate court as well as those in the trial court. Williams v. State, 135 Tex Cr 585, 124 SW2d 990; Jones v. State, 137 Tex Cr 150, 128 SW2d 815; and Nugent v. State, 155 Tex Cr 269, 234 SW2d 426. In Williams v. State, supra, the Court of Criminal Appeals of Texas, after quoting the statute and italicizing the phrase “all further proceedings in the ease against him,” stated as follows:
“It would appear that the italicized language relates to proceedings in this court as well as proceedings in the trial court. We are therefore constrained to grant the motion.
“The motion to suspend further proceedings is granted and the clerk of this court is directed to retire this cause from the docket until it shall be properly shown to this court that appellant has again been tried and found to be sane.”
It can be said discriminately that the language found in People v. Skwirsky, 213 NY 151, 107 NE 47, supports the doctrine of the Texas courts. There I find the principle proclaimed in the following statements:
“These provisions, and others relating to the insanity of defendants in criminal cases, clearly manifest the intention of the Legislature that legal proceedings for the punishment of a person accused of crime shall be suspended while he is mentally deranged. This is probably because an insane defendant is unable to advise his counsel of facts which may be material to his defense upon his trial, or, in the event of an appeal, to confer with his counsel in reference to the argument thereof; but whatever may be the reason, the intent is so plain that it ought not to be disregarded.” [Emphasis supplied.]
At first glance it may appear that the State of Arkansas is on the other side of the question. The Supreme Court of that State, in Johnson v. State, supra, in a situation similar to the one now before us, stated:
“. . . Appellant’s counsel have informally suggested to us that since the judgment of conviction was rendered appellant has been pronounced insane by the county physician and removed from the jail to the county hospital. It is conceded by the Attorney General that this is true. That, however, does not affect the adjudication of this court affirming the judgment of the trial court where no error is found in the record of trial. Appellant pleaded insanity as a defense to the crime, but no plea of present insanity was interposed at the trial nor was there any suggestion of present insanity as a reason why judgment should not be pronounced on the verdict of the jury. There is no provision in the statute for suspending proceedings in this court on account of appellant’s insanity, though ample *133protection is provided in that respect in the lower court.”
The decisions from the Texas and New York courts, as previously suggested, seem to be consistent with the provisions of the Manual which are to be the subject of discussion shortly hereafter. However, those from Arkansas are not necessarily in conflict. In the latter state it was not necessary to stay proceedings at the appellate level, as adequate protection after judgment was available to the defendant in the lower court and he was not left without relief. We have no similar proceedings in the military judicial system. We do, of course, have the convening authority who might suspend the execution of some sentences until recovery, but that offers no protection to the appellate rights of an accused and it is ineffective in capital cases. In connection with the latter statement, I direct attention to Article 71 of the Code, 50 USC § 658, which provides:
“ (a) No court-martial sentence extending to death or involving a general or flag officer shall be executed until approved by the President. He shall approve the sentence or such part, amount, or commuted form of the sentence as he sees fit, and may suspend the execution of the sentence or any part of the sentence, as approved by him, except the death sentence.
“(d) All other court-martial sentences, unless suspended, may be ordered executed by the convening authority when approved by him. The convening authority may suspend the execution of any sentence, except a death sentence.”
The quoted Article leaves an accused, who is sentenced to death, without recourse if he becomes insane after findings and sentence, unless appellate judicial authorities can delay acting on his case until sanity is restored. I do not believe Congress intended such a result. By way of illustration, suppose in this case we were to continue with the litigation. In view of our holdings in United States v. Bigger, 2 USCMA 297, 8 CME 97, and United States v. Freeman, 4 USCMA 76, 15 CMR 76, we, in all probability, would be required to reverse the board of review and reinstate the death sentence. If that were affirmed, we would present the President with the problem of either not acting on the record or commuting the sentence. If he approved both, execution would follow as, according to the Code, it cannot be suspended by him. A case should not reach the President in that posture as he should be unfettered in his decision. My associates pay scant heed to this argument, but in so doing they fail to discriminate between refusing to act and suspending a sentence. I surmise a public official is not supposed to put off a decision for years. Certainly, a President does not want to be continually faced with an undecided death case, and he would have no desire to pass it on to a successor. He cannot suspend sentence, he cannot permit the accused to be executed and he has no choice but to commute the penalty, regardless of the appropriateness of the death sentence.
Laying aside the difficulty we would place in the lap of the President by our proceeding with judicial review, an accused’s right to an adequate and fair review demands that the cause should be retained in the judicial department. The rationale of all cases is humanitarian in vein, and an insane defendant is not to be left without a remedy in the judicial arena. If he must possess his mentality at the time of trial, sentence, and execution to offer reasons to protect his life or liberty, it is equally important that he have the same mental capacity, so long as judicial proceedings are available, to protect either. During the time of appeal, it is possible he could produce facts which might challenge an affirmance by us. Conceding he must be represented by appointed counsel, he ought to be mentally competent to confer with and assist him in the preparation of an argument on the case, or to employ counsel of his own choosing if he is dissatisfied with the attorney assigned by the Government or by this Court. Furthermore, appointed counsel hesitate to bind their clients without their knowledge and their work is hindered if they do not *134have the benefit of consultation with an accused who is mentally capable of making intelligent decisions. Therefore, unless I find compelling reasons to the contrary spelled out in the Code or the Manual, I am not disposed to adjudicate the appeal of an insane man.
With those views in mind, I turn to military law as it is prescribed for us. Paragraph 124 of the Manual defines the power and authority of convening and higher authorities in regard to this subject:
“After consideration of the record as a whole, if it appears to the convening authority or higher authority that a reasonable doubt exists as to the sanity of the accused, he should disapprove any findings of guilty of the charges and specifications affected by such doubt and take appropriate action with respect to the sentence. Such authority will take the action prescribed in 121 before taking action on the record whenever it appears from the record of trial or otherwise that further inquiry as to the mental condition of the accused is warranted in the interest of justice, regardless of whether any such question was raised at the trial or how it was determined if raised.”
Paragraph 121 sets out the procedure to be followed when the sanity of an accused is brought in question. It provides for an examination by a board of medical officers to determine three issues. These are: The accused’s ability to distinguish right from wrong at the time of the offense; his ability to adhere to the right at that time; and his capacity to understand the nature of the proceedings against him. The provision then continues:
“To determine these questions the board should place the accused under observation, examine him, and conduct such further investigation as it deems necessary. On the basis of this report, further action in the case may be suspended, or the charges may be dismissed by an officer competent to appoint a court-martial appropriate to try the offense charged, or proceedings may be taken to discharge the accused from the service on the grounds of his mental disability, or the charges may be referred for trial. Such additional mental examinations may be directed at any stage of the proceedings as circumstances may require. The officer directing or requesting the mental examination of the accused will attach the report of examination to the charges if referred for trial or forwarded.” [Emphasis supplied.]
While the foregoing Manual provision deals principally with the trial phase, it must be interpreted in the light of paragraph 124 which gives all higher authorities the right to take appropriate action by suspending all further action if the accused does not have the mental capacity to understand the nature of the proceedings against him. In this case the only sensible action we can take is to maintain the status quo. Any other interpretation of the Manual provisions would bring about this undesirable result. If a petition was filed originally with us alleging the accused had been rendered mentally incompetent after we had acquired jurisdiction of his appeal, we would be authorized to determine the issue. However, unless we could stay further proceedings, our hearing would be abortive. We could not, in good faith, dismiss the case and we would be left with the alternative of disposing of the appeal in the same manner as if an accused were sane. If that is the most we can do, there would be no reason for granting us the power of determination of the question of insanity. Implicit in the power to determine an issue is the authority to dispose of it effectively.
I have considered the question as if the appeal were presently before us, and while counsel for the accused in these proceedings registered no objection to the Court disposing of the certified questions, I have concluded that the same principles are applicable to them. Assuming, arguendo, that the board of review erred and that we should settle the law as requested by The Judge Advocate General of the Army, the accused has a right to be heard. Under our rules of procedure, one convicted of an *135offense does not lose the benefits of a favorable board of review decision unless and until it has been argued, decided, and reversed on appeal to this Court. He is entitled to oppose the certified question and he has a legal right to present his arguments to sustain á ruling in his favor. His rights are intertwined so inextricably with those of the Government that a decision is bound to affect his interests. Merely answering a question certified does not end litigation. On the contrary, it may necessitate additional hearings, and if we overturn the ruling of the board of review in this case, we are faced immediately with a mandatory appeal. In a limited sense, a reversal would increase the punishment and at a time when the accused is incompetent. Humanitarian principles argue persuasively against that result. Moreover, we have previously announced a rule that piecemeal reviews are not favorably considered and a ruling on the certificate would be no more than that. While I prefer to process certificates from the respective Judge Advocates General with dispatch and furnish them answers to their questions, we should not do so if, at the same time, we impair the rights of a mental incompetent. I must, therefore, conclude that a continuation of this litigation would deny the accused the rights and benefits available to litigants who are mentally competent.