(dissenting):
I am unable to reach the issue raised in this appeal because of the presence of a serious error which has not been considered in the principal opinion. After the prosecution had rested its case, the accused in his defense raised the issue of mental responsibility and introduced evidence in support thereof. Mainly relied upon was a stipulation of testimony by a civilian psychiatrist in which he concluded that the accused had had “an episode of unconsciousness of *271approximately four hours duration which is unexplainable.” The prosecution in rebuttal introduced the testimony of a Navy psychiatrist who had examined the accused shortly after the offenses had occurred. During the course of his testimony, the following colloquy took place between the law officer and the trial counsel:
“Q. What did he tell you was the reason for committing these offenses ?
“Law OFFICER: Gentlemen, I am going to limit this testimony — or the effect of it to the credibility of the witness’ opinion as to the accused’s mental condition. Is that the purpose you are offering it ?
“TRIAL Counsel: 1 am offering it in rebuttal to the medical testimony offered on behalf of the accused, Mr. Law Officer. It is apparent from that that the conclusions as they are reached from Doctor Campbell are based on a history given by this man of amnesia. I think I am entitled to rebut that testimony by showing that the history given was not true, and therefore the opinion of Doctor Campbell is entitled to a little more weight.
“Law Officer: All right. But the question in my mind is this: Are you offering it as a confession — and I assume you are not; it is in rebuttal to the stipulated testimony of Doctor Campbell, is that right?
“Trial Counsel: Yes, sir.
“Law Officer: All right, proceed.” [Emphasis supplied.]
In spite of this assurance and the law officer’s admonition, trial counsel proceeded to interrogate the witness relating- to what the accused had told him “about the commission of the offenses.”3 The law officer should not have permitted trial counsel in rebuttal to exceed the bounds of direct testimony which was limited to the issue of the accused’s sanity. Defense counsel surely cannot be charged with waiver under the circumstances when the law officer had sua sponte sought to restrict the scope of rebuttal testimony and had even- extracted trial counsel’s promise to limit the scope of such testimony. It is well settled that the function of rebuttal evidence is to explain, repel, counteract or disprove the evidence introduced by the opposing party. Shepard v United States, 64 F 2d 641 (CA 10th Cir) (1933); Samish v United States, 223 F 2d 358 (CA 9th Cir) (1955); and United States v Crowe, 188 F 2d 209 (CA 7th Cir) (1951). The admission or exclusion of evidence on rebuttal rests largely within the sound discretion of the trial judge. Lelles v United States, 241 F 2d 21 (CA 9th Cir) (1957). Here that discretion was exercised against the Government.
While it was entirely proper for the law officer to limit the scope of rebuttal testimony, it was clearly error on his part to remain mute while trial counsel elicited a confession" related ’by- the accused to the psychiatrist in disregard of his earlier ruling. The question of the accused’s guilt' or innocence’was the ultimate issue for the triers of fact ánd any doubt which they may. have entertained was effectively dispelled by the testimony of 'the Government psychiatrist. * I would reverse the conviction and permit a rehearing.
The witness answered the question as follows:
“To the best of my recollection, he told me that he broke into the Ship’s Store and he stole, I think he said, three or four wrist watches, and that he broke into the armory where the weapons are kept and took, as I recall, a .45 caliber automatic, and I think he said something about having also taken some food, and then he said, as he put it, he holed up in' the port crane.”
The witness was then asked whether the accused had told ' him that he had “holed up in the port crane” to which he replied as follows:
“Yes. He said his plan was to avoid detection until the ship reached port. As I recall, at the time he said it was his understanding that the ship was to dock about 1600 or 1700 that day- and his,plans were, as he said, to" jump overboard and go over the hill.”