(concurring in the result) :
I concur in the result.
Generally I prefer the approach of the Chief Judge, but because there never has been, and there is not now, any issue of mental responsibility, I would not return the case to a board of review for inquiry into insanity. That is a question which should be raised by the accused in the manner provided by the law if he has any evidence touching on that issue. However, neither of my associates can recede from his position without prejudicing the accused and so, to dispose of the case, I am willing to join the Chief Judge in his disposition. By doing that, I extend the accused a possibility of having his mental responsibility inquired into by a board of review.
Presently, the only question before us is whether the law officer abused his discretion in denying a continuance. Judge Ferguson answers the question in the affirmative, while the Chief Judge reaches a contrary result because he concludes there is error without prejudice. I am right in the middle for, as I understand the law, a discretionary ruling is not erroneous unless it is arbitrary, capricious, or unrestrained. In this instance, the ruling is just the converse, for it is legally and factually supported by the record, and there is no error. However, were I to conclude the law officer erred, I would have to find prejudice.
From their decision, it is apparent that the members of the board of review would have ruled differently from the law officer had they initially considered the motion for continuance. That, however, is not the test. Reasonable persons may disagree on two alternative methods of deciding an issue, and either may be well within discretionary limits. Certainly, the judgment exercised by the law officer is not to be deprived of force merely because a higher reviewing authority might have acted differently.
In order for us to charge the law officer with error, it is necessary that we find he abused his discretion. To do that in this case, we would have to rely principally upon the facts and arguments favorable to the accused. That is not the proper measuring rod to be used, as the burden is on the accused to show the ruling was erroneous and, in order to make a proper assessment on that score, all evidentiary items and fair inferences for and against both parties must be assembled in the measuring device used to test the ruling. Therefore, let me point to some evidence which tends to support the law officer’s decision. The record shows that defense counsel had been associated with the case for approximately three months at the time of trial, and he was aware during the entire period that the mental condition of accused would be the main line of defense if some evidence to overcome the presumption of sanity could be obtained. He knew that the accused had been examined by a qualified psychiatrist in Morocco and by three others in Germany. While it is apparent their examination supported mental responsibility, defense counsel was authorized and did travel to their locale to personally interview them. He does not contend their reports, findings, and conclusions were not made available to him or that he was denied the opportunity to consult with or obtain the opinion or addresses of other psychiatrists at the time he was present in Germany. Furthermore, from the time of his appointment until the time of trial, he did nothing whatever toward communicating with any prospective medical witness. Having failed to take any affirmative action to develop leads for prospective psychiatric testimony, if any could be obtained, the defense was obliged to make a motion which was the quintessence of indefiniteness and uncertainty. It was not even asserted that there was a remote probability that experts might differ as to accused’s mental responsibility. All counsel said was: “I feel that doctors differ on this question and the doctors that I have had an opportunity to question have not differed.” Of a like tenor are his opening remarks in support of his motion — not that he intended to raise mental responsibility as an issue, *142but that potentially the plea might encompass that form of defense. Lastly, up to the day of trial, no communication of any kind had been directed to any psychiatrist, even to ascertain the possibility of obtaining an opinion on accused’s mental condition at the time of the crime or subsequent thereto.
Having mentioned the lack of any showing by the defense to support the motion for a continuance, I move onto state some other facts weighing heavily in favor of holding the trial at the time ordered. The offenses charged were allegedly committed nearly five months prior to the time of trial. The memory of witnesses, especially that of the nine-year-old victim, might dim. She had been the subject of a recent bestial.attack, and the sooner she could be freed from the strain of having to reconstruct the horrible experience, the sooner she could start on the road to forget. Delays, uncertainties of life, changes of residence, and other contingencies add to the difficulties of prosecution. In this instance, the child and other witnesses for the prosecution belonged mostly to the military community, and they were subject to being moved on short notice to other stations.
Manifestly from what I have related above, there is much to support the ruling by the law officer. Not only may he have reasonably concluded that defense counsel failed to come forward with any good reason for a continuance or facts to show due diligence, but, in addition, he could find that, after the Government, had furnished the accused with two separate mental examinations by qualified psychiatrists, justice demanded the trial proceed. Every lawyer and judge familiar with the practice of criminal law knows that a familiar tool used to defeat prosecution is delay, and, in the face of this record, I cannot agree that, as a matter of law, the law officer abused his discretion in narrowing that possibility. To find otherwise is to mold the general rule to state that he has discretion in the area of continuances only so long as he chooses to rule in favor of the accused. That cannot be the law, for, if he has discretion to rule, then he must be allowed to exercise it for or against either party so long as he does not exceed the bounds of reason.
Some suggestion is made that in this type of case, lack of diligence is not available against an accused and he is entitled to a continuance upon the assertion by his counsel that the defense is unprepared to proceed. That, of course, is not the law, nor should it be. There are two parties to a criminal prosecution, and a continuance for either is only a matter of right when the showing made by the requesting party is sufficient legally to require a finding in his favor. In almost every American jurisdiction, the burden is on the moving party to show reasonable cause for a continuance, and the rule does not change merely because the defendant is the movant. Most assuredly, upon the basis of this record, I am convinced that the law officer could rule properly that the defense did not carry the necessary burden.
I, therefore, answer the certified question in the negative and join the Chief Judge in reversing the decision of the board of review.