(concurring in the result):
I concur in the result. I do so because I consider the corpus delicti rule expressed in the Manual for Courts-Martial, United States, 1951, paragraph 140a, a better rule for the military than that laid down in Opper v United States, 348 US 84, 75 S Ct 158, 99 L ed 101. This separate concurrence is necessary in view of the implication in the principal opinion that this Manual rule is binding on this Court. The opinion refers to United States v Villasenor, 6 USCMA 3, 19 CMR 129, which specifically so holds.
The test for proof of the corpus delicti is in the area of legal sufficiency and therefore subject to approval by this Court. The Manual treatment of questions of criminal law has never been considered to be binding on this Court. United States v Jenkins, 7 USCMA 261, 22 CMR 51. This Court, as the court of last resort in the military, has the exclusive jurisdiction to set the law in such areas in the absence of action by the Congress. Fisher v United States, 328 US 463, 66 S Ct 1318, 90 L ed 1382.
I must also disassociate myself from the statement in the principal opinion that:
“. We have no doubt that possession of equipment for injecting foreign substances into the blood stream, such as was here found secreted among the possessions of an airman, would show that the possessor probably was using it for illegal purposes.”
I do not understand this to be an issue in the case, and I have doubts that it expresses a correct rule of law.