(dissenting):
I dissent.
It is perfectly plain that the act done by this accused, the “showing” of his clothing to Agent Johnson pursuant to Johnson’s request, amounted to a statement. It was “language, or its equivalent.” United States v. Ball, 6 US CMA 100, 19 CMR 226. That being the case, Agent Johnson had a duty to warn the accused of his rights under Article 31 of the Code before eliciting the identification of the clothing. Having failed to do so, the evidence of identification was inadmissible. United States v. Taylor, 5 USCMA 178, 182, 17 CMR 178.
In view of the fact that counsel at this level are not in agreement as to whether pointing to one’s belongings is a statement, I am convinced there was no certainty at the trial level. Under those circumstances, the law officer’s instruction was inadequate clearly to remove from the court-martial’s consideration the evidence of clothing identification. However, that is not the end of my inquiry as this is an instance where the competent evidence compels a finding of guilt. I would, therefore, answer the questions in the same manner as do my associates but I would not grant a rehearing.
The offenses alleged occurred shortly after 9:00 p.m. on July 13, 1954. The fire caused an immediate alarm and the investigators found the accused’s identification card and a letter at the scene *158of the burning. Shortly thereafter they proceeded to his barracks and found him in the shower room. His leg, which had been burned, was heavily bandaged. Because of his condition, he was taken to the hospital the following day for treatment, and before the Doctor asked him any questions about his injury, he was advised fully of his rights under Article 31 of the Code. In spite of this warning, he gave an account of his activities but these statements were not offered in evidence. On July 16, 1954, he was again advised of his rights and he then executed a full confession. There was a showing that the confession was voluntary and no fact of any importance is in dispute. The confession was admitted as evidence and unless it can be held to be the product of the illegal act of the investigator, then there is no reason why it cannot be considered to support the findings.
The accused produced no testimony and the Government’s evidence negates any supportable contention that the confession was induced in whole or in part by the accused’s pointing out his belongings. Any connection between the improper act and the final confession is so attenuated as to be negligible. If, therefore, we eliminate the improper evidence or seek to measure its impact in this bundle of incriminatory testimony before the court-martial, it becomes clear that all reasonable men would be compelled to find this accused guilty. The most that can be claimed for the incompetent testimony is that it established the accused’s wearing apparel smelled of gasoline. Without that in the record, the court had before it the accused’s presence at the scene of the crime; an explosion and fire; a large recent burn, treated with vaseline and of sufficient degree to require hospitalization ; a statement to the doctor as to the manner in which the injury was incurred, after a full and fair explanation to the accused that he need not make any statement concerning the offense; and then three days later, a full confession of the crime after a second warning. Without a dispute of any kind, and with no evidence to rebut the showing made by the Government or to establish that any testimony was obtained by compulsion, coercion or promises of benefit, I can find no probability that the incompetent evidence influenced the finding or the sentence.