(concurring in the result) :
I concur in the result.
Because I believe this decision is another in a series which have tended to weaken the authority of a law officer, I prefer to first develop my views in some detail on that facet of the controversy. After having been warned fully of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831, the accused executed four pretrial statements. Relying on the principle that the Government must affirmatively establish the voluntariness of a confession before it can be introduced in evidence, trial counsel started to lay an evidentiary foundation to meet the requirement of the rule. During the course of the examination of a Government witness testifying for that purpose, defense counsel requested an out-of-court hearing. The law officer granted the request and, after the court-martial retired, defense counsel stated that his purpose in having the court excused was to keep from the members such evidence as would be presented upon his objection to the admissibility of the fourth and last statement executed by the accused. There was no like objection to the admission of the first three statements. Defense counsel also insisted he was entitled to obtain a ruling by the law officer on a motion to suppress the confession out of the hearing of the court. By this strategy he hoped to prevent the members from learning about the existence of the last statement.
If it is permissible for the law officer, upon request of the accused, to silence the Government — which I doubt — that procedure is assuredly not one which the law officer must permit under penalty of reversal. In a colloquy with defense counsel, the law officer advanced the theory that the Government could present its evidence in open court and that, while defense evidence could be presented out of court, his final ruling on any objection lodged by defense objection must be announced in open court. This procedure was unsatisfactory to the defense, for it was defense counsel’s contention that a ruling before the court members would defeat his purpose in calling an out-of-court conference. When the law officer refused to retreat from his position, defense counsel made an offer of proof which, for the purpose of argument, I will assume tended to show the disputed statement was not voluntarily given. When court reconvened, trial counsel produced evidence refuting each allegation of that offer of proof and tending to establish that the statement was voluntarily given. Prior to admitting the document, the law officer explained to the accused his rights to take the stand for the limited purpose of testifying on the alleged involuntariness of his confession. The accused elected to remain silent; however, his counsel reiterated his offer of proof in support of his objection to its admission.
While under certain circumstances it may be a better practice to permit an accused to make his showing on volun-tariness outside the presence of the court, it is not mandatory and normally would just be a duplication of effort. Paragraph 57p(2) of the Manual for Courts-Martial, United States, 1951, insofar as applicable in this instance, provides :
“Except with respect to hearing arguments of counsel on proposed additional instructions (73c (2)), there is no requirement in courts-martial that the law officer conduct any hearings out of the presence of the members of the court. However, if it appears to the law officer that an offer of proof (154c), or *485preliminary evidence or argument with respect to the admissibility of proffered evidence, may contain matter prejudicial to the rights of the accused or the Government, he may, upon his own motion or upon motion of counsel, direct that the members of the court be excluded during the presentation of such offer of proof, preliminary evidence, or argument. Counsel for both sides, the accused, and the reporter will be present during such proceedings which, if they include the presentation of preliminary evidence, will be fully recorded, transcribed, and appended to the record of trial for the information of the convening authority.”
In United States v Cooper, 2 USCMA 333, 8 CMR 133, we said the accused had the right to have appropriate evidence received by the law officer outside the presence and hearing of the court for the purpose of enabling that functionary to make a preliminary determination of the question of admissibility. But the right is not absolute and unless it can be shown that a law officer abused his discretion in denying such a hearing, accused cannot complain. Moreover, in this instance that right was not denied this accused and the law officer specifically informed the defense it could present evidence at that time. Defense understood that, but it sought more. The entire thrust of its argument was that the law officer must rule in closed session ; otherwise, the court-martial might learn of the confession. This is contrary to the provisions of the Manual which state unequivocally that all rulings will be in open court. Paragraph 39c, Manual for Courts-Martial, United States, 1951. While an accused may be entitled to some degree of secrecy to prevent unfair testimony reaching the court-martial, he cannot, contrary to military law, bar the law officer from recording his ruling in open court. In addition, it must be remembered that the purpose of such a hearing in camera is to hold a preliminary inquiry into the question of voluntariness and if the law officer ultimately rules that the statement is admissible, the court-martial must of necessity be told of the ruling and hear the same testimony pro and so much of that which is contra as the defense desires to adduce; see United States v Dicario, 8 USCMA 353, 24 CMR 163; for then the members are. authorized to consider the identical; question, United States v Jones, 7 USCMA 623, 23 CMR 87; and they must know the facts. In this particular instance, the accused abandoned any issue over the admissibility of his confession due to involuntariness when he chose not to present evidence upon that issue at any time before its reception into evidence by the law officer. While it can be said that technically the law officer could have ruled in the out-of-court conference and then again ruled after the court opened, I fail to see that he erred by stating he would make only one ruling. Certainly, in the circumstances of this case, no one could reasonably say the law officer abused his discretion in demanding that his ruling-be made in open court. I, therefore, disagree with the Court’s holding that he erred to the prejudice of the accused.
The law officer’s erroneous instruction on the confession to the court members presents another and substantially different matter. ■ As mentioned, after the Government produced its evidence on the voluntariness of the confession, the accused elected not to testify. Had the matter ended there, the law officer could not have committed reversible error in so instructing the‘court'; but the accused did testify on the merits after the law officer had ruled the confession admissible. During the course of his examination and cross-examination, the accused claimed that the confession had been obtained from him only after a prolonged questioning period and that his - interrogators had-refused his requests to consult with his' own civilian counsel before executing it, as well as several other matters of inducement, claims which were contradicted by his two interrogators. The accused’s showing of lack of free will was rather weak in view of the admitted fact that he was frequently advised of and understood his rights under Article 31, supra. Sometimes, however, a subjective standard may be *486warranted for voluntariness; see, e.g., Haley v Ohio, 332 US 596, 92 L ed 224, 68 S Ct 302 (1948). This accused appears to have a low intelligence level, and to have been slow-witted and impressionable, which attributes may place him in a class with those whose mental freedom is easily impaired. Under such circumstances, I believe he raised an issue over voluntariness for the court’s determination.
The accused denied the truthfulness. of the incriminatory part of the questioned statement and, accordingly, there is prejudice unless the Government’s contention that he judicially admitted the same facts and circumstances while on the witness stand is sound. That assertion, however, must fail for the simple reason that the accused’s trial testimony vacillated between facts showing an accidental discharge of the weapon and an intentional shooting in self-defense. The confession fixed with certainty an intentional shooting, thus rendering the accidental version unlikely. I cannot find, therefore, that the submission of contents of the confession to the court members, without a proper instruction that they could reject them entirely if they determined the confession was involuntary, was harmless.
As to the instruction by the law officer that:
. . A person is presumed to have intended the natural and probable consequences of an act purposely done by him. Hence, if a person does an intentional act likely to result in death or great bodily injury, he may be presumed to have intended death or great bodily harm,”
I think United States v Miller, 8 USCMA 33, 23 CMR 257, is dispositive. This portion of the law of-fleer’s instruction was concerned with the elements of unpremeditated murder and was almost immediately preceded by this instruction upon the elements of premeditated murder:
“. . . Thus, the law presumes, and you would be justified in inferring, that a person must have intended the natural and probable consequences of any act purposely done by him. The weight, if any, to be given an inference of the accused’s intent must of course depend upon the circumstances attending the proved facts which give rise to the inference, as well as all evidence in the case. It is for you to make this determination,”
which certainly satisfied the requirements of United States v Miller, supra. I would hold the more detailed instruction upon the greater offense to have adequately informed the court members that the presumption, that a person intends to effect the natural and probable consequences of acts purposely done by him, meant only that they would be justified in drawing that inference. Defense counsel, when asked, had no objection to the instructions as given by the law officer and did not request a redefinition of the term “presumption.” This was undoubtedly because it was reasonable to expect the court members to apply the term as it was previously defined when they were again advised to consider it in the same context. It is also reasonable to put the burden upon the defense of acquainting the law officer with its desire for the repetition of a definition once announced before the latter is held responsible for the lack of it.