(concurring):
Of course, Judge Latimer’s solution of the present problem is the only sensible one — and he is unreservedly correct in suggesting that my reticence in the Glaze case constitutes no bar to outright concurrence here. There, I simply saw no reason for talking of waiver at all — for it was elsewhere made clear in the opinion that the accused possessed no shadow of right to exclude Colonel Bishop from membership in the court-martial.
Additionally, many of my views on the subject of waiver have been discarded recently — for the regrettable, but practical, reason that, despite repeated efforts, I was unable to convince my brothers of their soundness. See my separate opinions in United States v. Fisher, 4 USCMA 152, 15 CMR 152; and United States v. Henry, 4 USCMA 158, 15 CMR 158. It has been responsibly said that discretion is the better part of valor — and this is true as well, I suspect, of judicial effectiveness. In my view, too, courts-martial — including appointed defense counsel — have matured greatly during the past several years. Cf. my separate opinion in United States v. Smith, 2 USCMA 440, 9 CMR 70. Wholly apart from these orderly withdrawals, however, I would find no difficulty in supporting the majority’s opinion without qualification— for, if. I ever saw an express and informed waiver, I find it here.
As I understand the civilian law of the subject, there is — apart from statute' — no flat rule disqualifying a juror from testifying as a witness. Indeed, no essential inconsistency seems to be recognized between appearance as a witness and service as a juror in the same case. The matter is entirely left up to the parties. See Wigmore, Evidence, 3d ed, §§ 1800, 1910. Here the accused — the only party who, by any stretch of the imagination, could have been harmed — indicated explicitly, and with full knowledge of the facts, that he had no objection to the court member concerned. That is enough for me. I am sure that in the Moore case we went as far as we should in requiring the excuse of court-martial members for what in most instances are purely technical and formal reasons.
True it is that the Manual — read with Moore — might seem to point in a direction other than the one in which Judge Latimer is traveling. However, these sources must forbid his course much more clearly than they do to cause me to part company with him.