(dissenting):
I dissent.
Apparently the holding in this case veers toward my dissent in United States v Lowery, 2 USCMA 315, 8 CMR 115. At least my associates find that trial counsel was arguing in the capacity of an advocate and not as a sworn witness. I, therefore, treat him as being in that status.
This case was tried before a special court-martial and the error, if any, arose out of arguments on sentence. It must be confessed that paragraph 75c (2) of the Manual permits the Government to introduce evidence in rebuttal of mitigating facts presented in an un-sworn statement of the accused or his counsel. But that is not to say that arguments cannot answer arguments and that is what substantially occurred here. In connection with arguments, both sides ought to be allowed some latitude in their comments and trial counsel’s conduct should not be weighed in an analytical balance and defense counsel’s on platform scales. If defense counsel argues outside the limits of the record, trial counsel ought to be entitled to answer or explain. Otherwise, for all practical purposes the unsworn statements of the defense become untouchable. Here the matters mentioned by trial counsel were in the record or were in reply to the arguments made by defense and, hence, I lean to the belief that there was no error.
Regardless of the views hereinbefore expressed, for the purpose of this case, I am willing to assume trial counsel erred, but that is just the starting point. The accused was charged with and convicted of three offenses for which the maximum sentence imposable, had this case come before a general rather than a special court-martial, was a bad-conduct discharge, total forfeitures and eighteen months’ confinement. He was sentenced to a bad-conduct discharge, forfeiture of $38 per month for four months and confinement *607for the same period of time. Two of the offenses in the case at bar were absences without leave from December 26, 1956, to January 4, 1957, and January 5, 1957, to January 10, 1957, to which he entered a plea of guilty. Pri- or to sentence, there was introduced into evidence a record of a previous conviction which showed a finding of guilty to an absence without leave from November 10, 1956, to November 28, 1956. In that instance accused was sentenced to confinement and he finished his term of incarceration just before Christmas of that year and only three days before the first offense in issue in this case. The question, therefore, is this: In the posture of this record, is there a fair likelihood that the sentence was affected by the two statements that the officer of the day and a duty sergeant explained to the accused the seriousness of not returning from Christmas liberty and that a doctor had examined the accused and stated that he was legally sane?
In answer to the first part of the question, I have reason to believe that every recruit who enters the service is told of the seriousness of being absent without leave and this accused had been forcefully impressed to that effect. Therefore, I find nothing of sufficient importance to affect a sentence in a statement that an accused, who has just been released from the brig and forfeited part of a month’s pay for a previous unauthorized absence, has been informed by his superiors about the seriousness of a subsequent violation of the same nature.
The second statement is trial counsel’s reference to accused’s examination by a doctor. Defense counsel had referred to his client’s nervous condition and to the request of his mother for a physical examination. Trial counsel answered by- saying he had been given an examination and the doctor said he, the accused, was sane. In the absence of any testimony to the contrary, an accused is legally presumed sane and so the comment was no more than that a doctor had stated what the court was required to presume.
Sometimes much can be made of trivial incidents which occur in criminal trials and, in my opinion, the present decision goes too far in that direction. Certainly in special courts-martial defense counsel cannot be expected to reach the level of a trained lawyer but they ought to have an ear for statements which are false, inflammatory or unfair. Here there is no claim that trial counsel misrepresented a single fact and the claim of prejudicial error is asserted for the first time on appeal. I can understand that, for in my judgment the sentence imposed in this case was not influenced in the slightest by trial counsel’s comment. No doubt a military record which showed a reeidi-vistic absentee who refused to serve is solely the basis for the punishment imposed. Certainly, in the light of three separate absences, at least two of which commenced the day following accused’s involuntary return to the service, any possibility of prejudice from the arguments is simply nonexistent.