(dissenting):
I dissent.
This is a most difficult ease to decide objectively because we are faced with a beastly and senseless crime committed against a child of tender years. Nonetheless, the accused is one whose mental processes have, by any medical yardstick, been impaired. There is practically no dispute in the facts, for the killing is admitted, the accused’s medical history is not controverted, and the evidence upon which the experts base their opinions is settled. The real dispute concerns the conclusion to be drawn from the medical evidence, for the expert witnesses are divided sharply on accused’s mental condition and the issue of his responsibility for the offense. However, there are certain matters upon which they agree. Some five or more civilian psychiatrists and six or more military psychiatrists have participated in this case and they are unanimous in the conclusion that, regardless of the nature of accused’s illness, he is dangerous to society, will remain so for many years, and should not be released from confinement unless there is clear and positive evidence of a major change for the better in his pathological and psychological processes. In addition, they agree that the accused suffers from some illness which may at times affect his mental processes. The military psychiatrists diagnose his condition as a character disorder, while most of the civilian experts arrive at the conclusion that he has psychotic episodes and that the killing probably occurred during one of those periods. Lastly, the experts agree that, regardless of how the illness is catalogued or characterized, it has existed for some time and it is a part of accused’s lifelong pattern of behavior.
It would serve no real purpose were I to set out the facts underlying the various conclusions reached by the experts. It is enough to say that those experts from the civilian community who testified or otherwise submitted their opinion are recognized as some of the outstanding psychiatrists in America, and they presented powerful reasons to justify their opinions that accused was insane at the time of the offense and not mentally responsible for the crime. On the other hand, military medical experts gave good reasons to support their unanimous conclusion that the accused, while suffering from a chronic, severe anti-social personality, with aggressive and sadistic trends, was sane at the time of the offense and legally responsible for its commission.
Our task would not be difficult if we were faced only with a dispute in the evidence or the inferences to be drawn therefrom, for if that were the gist of the controversy, we could solve the problem by merely saying that we do not have fact-finding powers, that two fact-finding agencies have resolved the issues against the accused, and that we are powerless to interfere. But we are faced with an instructional infirmity, and, in the light of the evidential posture of this case, I believe that deficiency is sufficient to undermine the findings of premeditated murder.
I agree that the law officer instructed the court-martial members that if, in the light of all evidence, they had a reasonable doubt the accused was mentally capable of entertaining the premeditated design to kill involved in the offense of premeditated murder, they must find him not guilty of that offense. Such language may be found within this cold record, but that is not the full story, for it was preceded by other instructions which must have had a tendency to becloud the issue and confuse the court members. Certainly, if that statement was fully and fairly understood by the court members to mean that accused’s mental state, regardless of the diagnostic label, could *428be considered in determining his mental capacity to premeditate, then I would concur with my associates. However, my perusal of the record forces me to conclude that the members of the court-martial were not told informatively how to consider a condition which, if the Government’s witnesses were to be believed, might have prevented the accused from premeditating, but which would not, under their view, relieve the accused of criminal responsibility for the homicide. Very briefly, I will mention my reasons for that conclusion.
The instruction referred to in the Court’s opinion is quoted as it appears in the record. It there appears on the page as a separate paragraph, but it was given immediately following an instruction on intoxication. The instruction on that subject deals with its effect on premeditation, but any reference to the effect which a mental condition less than insanity, such as a character or behavior disorder, as those conditions are defined in military publications, might have on that element are singularly missing. More to the point, the instructions on insanity, without some sort of additional explanation, would lead a court member to believe that the accused’s mental condition could only be considered if it amounted to legal insanity, and then solely for the purpose of determining whether the accused was to be relieved of criminal responsibility for the principal offense and all included offenses.
In dealing with the issue of insanity, the law officer gave the usually accepted instructions previously found in military cases. He used the right and wrong test in conjunction with the irresistible impulse theory. In dealing with the ability to adhere to the right, he specifically informed the members of the court that before that hypothesis could be used, it was necessary that there he a total impairment of the ability to adhere to the right and that something less than that did not suffice to meet the .standards of military law. In addition, he informed the court-martial members that an irresistible impulse must be an insane, irresistible impulse, that is, an irresistible impulse resulting from a disease of the ?ñiíld .as distinguished from moral insanity, for he said that moral insanity, strictly speaking, is not insanity at all. Furthermore, he continued on to say that, for practical purposes, inability to adhere to the right occurs only in psychotics and that a mere defect of character, willpower, or behavior, as manifested by ungovernable passion or otherwise, does not necessarily indicate a lack of mental responsibility, even though it may demonstrate a diminution or impairment of the ability to adhere to the right. This is all very well when discussing the question of whether the accused is to be absolved of all criminal responsibility, but the thrust of those instructions is away from any theory that something less than psychosis can be considered by the court for any purpose. If the court-martial members understood the instruction in the manner in which I have interpreted it, then they would have to conclude that if the accused was psychotic he could be found not guilty, but that any impairment of the mental processes which did not reach that level of severity could not be considered at all. If such was the case, then the accused was prejudiced for, while the record would support a finding that he was legally sane, the medical evidence is also clearly sufficient to support a finding that his mental condition prevented him from premeditating the commission of this senseless crime. Surely this man was placed by the evidence in a category such that his illness must be considered in its relationship to both criminal responsibility and to the element of premeditation. The first was covered adequately by the instructions, the second not really at all.
In the recent case of United States v Dunnahoe, 6 USCMA 745, 21 CMR 67, I set out the reasons why I believed that well-recognized conditions which are characterized by some psychiatrists as character disorders and others as mental defects or derangements could be considered by court-martial members for the purpose of determining whether they affected the mental processes of an accused to such an extent that he could not premeditate. In that case I was not prepared to say — nor do I at this *429time believe — that these disorders should be permitted to exculpate a person for the commission of a crime, but I have reached the conclusion that so long as the record shows a fair probability that the condition of an accused’s mind is affected by some illness, even though he is not psychotic, the court-martial members should be instructed that they may consider it in ascertaining whether he actually could or did premeditate.
It may well be that my views on this particular issue will not become part of military law, but if a fair trial is to be assured when the life of an accused is at stake, it is necessary that law officers inform court members in clear and unmistakable language that they may consider any evidence in the record which casts light on the issue of premeditation, and that that evidence should not be excluded from consideration merely because medical experts disagree over its diagnostic label.
I would return the record to The Judge Advocate General of the Army for reference to a board of review, either to affirm a finding of guilty of unpremeditated murder and an appropriate sentence, or to grant a rehearing.