(dissenting):
Of course, I agree with the majority that we cannot accept Carver’s conviction of premeditated murder. However, I am troubled about several aspects of this singularly disorderly case, which — weighed together — push me to the conclusion that we should direct a rehearing, and must deny to the board of review the alternative of an affirmance of guilt of the lesser crime.
• II
I also agree fully with the principal opinion’s conclusion that error inheres in the manner in which the trial counsel interrogated Major Kelly respecting his beliefs and views. It will be remembered that a death case requires a unanimous vote of the court-martial’s membership as to the sentence. Here the Government managed to secure the exclusion of one member who had appeared- — not without minimal reason— to disapprove certain trial conduct of its lawyer in dealing with a defense witness — a point of view which might conceivably have redounded to the benefit of the accused.
Furthermore, insofar as Major Kel*271ly’s attitudes are accurately reflected in the written pages of this record of trial — which I have examined with care— I find no indication of any sort of bias, or indeed of anything other than a highly commendable, if inartful, effort to insure fairness in the proceeding and to ascertain the facts. That this should result, however indirectly, in his exclusion from the court’s membership — and at the Government’s request — disturbs me greatly.
Major Kelly’s confused and confusing remark having to do with “bending over backwards” in behalf of the Government may certainly be regarded as furnishing sound reason for a defense challenge for cause — and, so far as I can gather, this was the basis on which the remaining members of the court-martial sustained the challenge which was directed against him by trial counsel. However, the accused’s lawyer did not at all choose to follow this tack— and thereby clearly indicated his willingness to assume whatever risk which might flow from the Major’s retention within the tribunal’s membership. We would be indulging in self-deception, therefore, if we were to place much reliance on the likelihood that the defense would have been harmed had Kelly remained. Most certainly I do not agree with my associates when they say that there was “sufficient evidence of bias toward the accused.” (Emphasis supplied.)
The real issue, it seems to me, is whether the member concerned was prejudiced against the Government because of his dislike for trial counsel’s tactics. And there is probably another even more relevant and pointed question: Would his presence on the court have operated to cast “doubt on the fairness of the proceedings”? Cf. United States v. Stringer, 5 USCMA 122, 17 CMR 122.
Literally nothing said by Major Kelly, either in his interrogation of witnesses or during his own extensive voir dire examination, reveals to me the possibility of prejudice on his part. I find little danger in his continued presence, therefore, unless it be thought — and for this there is a certain amount of support, logical and otherwise — that the manner in which trial counsel interrogated him would inevitably have served to arouse the ire of any man of spirit, with the result that such a one might be the less able to weigh a case’s issues objectively. I suppose, though, that within the criterion of the Stringer test I cannot deny that it lay safely within the court’s discretion to excuse the Major for the purpose of avoiding the untoward appearance created by the comment which indicated that he would “bend over backwards” for the Government in a close case.
However, I find myself bothered at this juncture by the circumstance that this remark was uttered in the course of a roving— a distinctly free-wheeling —interrogation believed by all of us to constitute error. Is a trial counsel to be permitted to question — at length and improperly — a court member whom he suspects he has estranged by his conduct of the hearing, and so to produce a situation in which the member must be excused if a bad public picture is to be avoided? I cannot bring myself to condone this sort of conduct by an af-firmance of any sort here.
Ill
And there is another matter. A majority of this Court held in the Stringer case, supra, that a motion for a mistrial must be included among those procedural devices available for use in military trials. My two associates, incidentally, made up this majority in Stringer; and for my own contrary position I relied inter alia on the circumstance that previously a motion for mistrial had been unknown — even rejected — in military law.1 Of course, if *272there is to be recognized a motion for mistrial under the Uniform Code, then I am sure that the accused in the case before us was entitled to the benefit of the law officer’s exercise of discretion in passing on his motion — that is, in determining whether a new court-martial should have been assembled to pass on his case.
Whether Carver received this benefit, -I am unable to determine from the record with assurance. Of course, the present case was tried long before the Stringer opinion was published, and it is quite possible that the law officer simply did not regard the motion as permissible, and thus did not reach the point of exercising his discretion in the matter. On the other hand, it is certainly arguable, as the principal opinion suggests, that the law officer’s discretion was in fact exercised — and adversely to the accused.
It is clear, however, that the staff judge advocate to the convening authority did not accept the point of view of the Stringer case in this particular —for he said in his review of this record of trial that “[a] true motion for a mistrial may not be considered by the court,” and cited United States v. Stevenson, 45 BR 267, 284. Not only does this observation indicate generally the ante-Stringer Service understanding of the law, but it suggests more specifically the climate of opinion on the point within the command in which the law officer in the instant case was functioning. The staff judge advocate’s review further stated that “[a] motion for a mistrial may be treated as tantamount to a motion for a finding of not guilty,” citing United States v. May, 32 BR 183, 194. And it continued by saying that, “If so considered here, it was, of course, properly denied” — with which latter conclusion I am not at all out of sympathy. It would be most unfortunate, of course, if the law officer here had treated the mistrial motion as one for findings of not guilty and denied it as such — -for it must be obvious that the criteria for action on the two motions are vastly different.
And it is not impossible that he did so, for he may well have shared the views on the subject held by Colonel Robert J. O’Connor, the staff judge advocate, in common with the generality of members of the military-legal community. The record reflects that, at the time of trial, the duty station of Lieutenant Colonel Willard J. Hodges, Jr., JAGC, the law officer in the present case, was the VII Corps headquarters, the command of the convening authority. And other data, which I am able to notice judicially, indicates that he was also the principal assistant to the staff judge advocate himself, his executive officer, in fact — and as such shared the latter’s official quarters, perhaps even the same room. Naturally, all of this disquiets me as I consider the disposition of this case made by my brothers.
In any event, the law officer’s conduct here can only be interpreted in one of two ways. (1) He may have felt that he possessed no power to grant a motion for a mistrial — and denied for that reason. (2) On the other hand, he may have considered the motion on its merits and decided against the movant. In either event he erred for my money. He was wrong under the first alternative because the accused was entitled to an exercise of judicial discretion on the merits. And he was wrong under the *273second for the reasons set out in the preceding section of this opinion. In view of the regrettable posture of the record at the time the motion was before him, I am unable to avoid the conclusion that the law officer abused his discretion when he denied it.
IV
The majority opinion fails to recite the remarks addressed by the trial counsel to one Captain August, a defense medical witness, and also those used in referring to him. If I recall these passages correctly, they included some quite colorful language and, as well, certain highly unflattering descriptions of the physician and his qualifications.
Recognizing fully that counsel is entitled to a broad latitude in the presentation of argument — including the privilege of commenting, within the limits of propriety, on the relative qualifications of witnesses — in the ordinary case I would not be distressed by expressions like those used by trial counsel in the case at bar. Here, however, I am afraid that they operate to lend real color to the defense claim of “over-prosecution” and so form part of a pattern of conduct and events which leads me to favor the grant of a rehearing in this proceeding, which — it will be recalled — is both a doubtful and a death sentence case.
V
I have only one possible quarrel with the treatment of insanity in the principal opinion. Judge Latimer adverts to the rationale used by the board of review in which its members — in passing on the necessity for a partial insanity instruction — sought to distinguish between “mental defect, disease, or derangement,” on the one hand, and a “defect of character, will power or behavior,” on the other.
As I read the Fisher case, the Supreme Court espoused no similar qualification when it considered the slightly misdescribed doctrine of partial insanity. Fisher v. United States, 328 US 463, 90 L ed 1382, 66 S Ct 1318. Indeed the Court indicated that under that principle — had it been recognized in the District of Columbia — Fisher would have been entitled to an instruction on partial insanity. Yet the accused there is revealed by the opinion of the Court to have been a “psychopathic personality,” and neither a psychotic nor a psychoneurotic. Nor does anything exist either in Hopt v. People, 104 US 631, 26 L ed 873, the previous decisions of this Court, or the language of the Manual for Courts-Martial which serves to limit the defense in question to those mental ailments which would suffice in quality and nature to permit a finding of total insanity.
I say this is only a possible basis of disagreement with the principal opinion — for I am not entirely sure whether the organ of the Court approves the board’s rationale, but holds it inapplicable to the situation before us, or whether he either rejects it or declines to pass on its correctness. Because of this uncertainty, I have wished to set out my own notions.
VI
All in all, I woftld be much better satisfied if the Carver case were reheard. And so, I suspect, would the field law enforcement authorities of the service concerned — although perhaps for different reasons. The killing here was a particularly vicious one, and they appear to have thought with some reason that — unless the product of legal insanity — it warranted the supreme penalty. Of course, a death sentence may be reimposed following another trial.
It must not be understood that, despite my disagreement with the mistrial conclusion reached by my associates in the Stringer case, I am out of accord with their result on functional grounds. Instead, I feel as strongly as they possibly can that the motion will serve fully as useful a purpose in military trials as it has long done in civilian proceedings — and, were I a legisla*272tor, I would seek promptly to provide for it. Indeed, a case like the present one serves clearly to demonstrate the supreme utility of the device — or would have done so had the law officer acted appropriately.
In other words, I wholly approve of the use of the motion for mistrial in military practice in terms of a sound, fair and economical trial administration. In Stringer, however — and try as I would — I could not avoid the conclusion that the Uniform Code forbade the course I preferred. And thus I found myself there in the rare and happy judicial situation of having had dearly held views thrust down my throat over my protests — and with no slightest personal responsibility for whatever error may have inhered in the determination. I can only wish that this joyous event had happened in appropriate cases in the past, and will recur if needs be with frequency!