(dissenting):
,, I dissent.
Because of the death penalty, this *789ease reaches us for a mandatory review by virtue of the Uniform Code of Military Justice.
At the outset of the case, the accused moved for a change of venue on the basis of intense public prejudice on Okinawa and the disqualification of the convening authority, who was also the civilian governor of the Ryukyus group. The law officer denied the defense motion. This motion was supported by introducing a summary of the daily Okinawan Press for the period of September 6th through November 9th, 1955. Also introduced was the substance of a staff conference held by the convening authority on September 21st, a press conference held by the staff judge advocate on the 16th of September, and a meeting of the Ryukyuan-American Community Relations Advisory Council on the 16th of September. The Government offered no evidence in opposition to the defense’s motion. The law officer denied the defense’s motion for change of venue on the ground there was no showing that the military shared the local prejudice, and denied without comment both the motion going to the convening authority’s disqualification and a motion for a new court to be appointed from outside that command. In this I think the law officer was in error. The record clearly shows the feeling of the local community as well as the responsive concern of the military. The fact that the convening authority and the staff judge advocate held meetings with the local populace indicates the attitude of the military in relation to the question involved. Anyone who has served in these important capacities in foreign lands realizes the importance which is placed upon the attitude of the native people. Therefore, the feeling that was generated by the action of the local community was reflected in the action of the military as is indicated by the trial counsel’s statement at the close of the hearing that: “I have a responsibility to the United States other than the mere conduct of this trial.” He requested that he be allowed to give the local press information on the hearing which was taking place out of their hearing. Of course, this was denied by the law officer but it indicates the attitude of the military in relation to the local issues. There can be no doubt from the record that the press reports of the local papers were conveyed to the military authorities. Indeed they reflect that the convening authority, General Moore, was fully aware of the situation and its danger. General Moore and General Burger expressly recognized that this case had become a focal point for any political demands predicated upon the intense emotion which had been invoked and the distinct possibility of violence. General Moore also referred frequently to the situation as one which might get out of hand. He indicated the military community was very disturbed by the problem and he would see to it that all men and officers were aware of the situation. The record clearly indicates the intense emotion evoked by the case among the Okinawan populace. That the feeling of the local populace affected the military is highlighted by one incident. The staff judge advocate telegraphed to the Department of the Army requesting that, if the convening authority approved a death sentence, the accused be kept on Okinawa and the sentence be executed there.
No hardship would have been placed upon the Government to have geographically removed this ease for trial or to have brought in new court-martial members in order that the accused receive a completely impartial trial.
When the accused was taken into custody on September 6th and asked by investigating officers if he knew why they wanted to talk to him, the arresting Government agent testified the accused replied he “read about the little girl’s being killed in the newspaper.” 'This statement was procured from the accused without an Article 31 (Uniform Code of Military Justice, 10 USC § 831) warning. The majority opinion applies the rule of waiver in this case. In view of the fact that this is a capital case, I would not do so.
It should not be overlooked that one member of the board of review dis*790sented upon the question of sufficiency of the evidence.
As I study this evidence, I am brought to the conclusion that the testimony concerning the hair given by the expert witness, Dr. Kuwashima, at the trial, was highly relevant as to whether or not the accused committed this crime. It is of much greater importance than many of the other pieces of evidence on this point. To demonstrate this, I must refer to the conclusions of Dr. Kirk, whose testimony would be introduced at the new trial and which is the basis of the motion therefor.
As a basis for the defense motion for a new trial, they have introduced the proposed expert testimony of Dr. Kirk, who stated:
“Summary:
“In order to state that two hairs could have had a common source, it is essential that all morphological factors fall within a common statistical range. In addition, if the hairs have a common origin, it is probable that two, from two different sources, can be found that agree throughout. When adequate standards are available, this criterion is generally essential also.
“In no instance were any hairs found on either the victim’s person, or his clothing, that matched any standard hair of Hurt in all morphological features. Furthermore, in no instance was any hair found on the victim that was within the statistical range of standard hairs of Hurt with respect to all morphological features.
“There is no evidence whatever that any of the hairs found on the victim were from defendant Hurt, nor was it even possible for them to have been from him.
“This conclusion is completely positive with regard to head hairs, which were, in all respects, distinguishable from his. The discrimination on the pubic hairs was less decisive, partly, at least, because far less is know of pubic hairs than of head hairs; partly because pubic hairs are more variable than head hairs.
“When all morphological features were studied, every hair found in the defendant’s car was clearly distinguishable from standard head hairs of the victim. The similarity of color was obvious in several hairs, but the similarities ended there, and discrimination between hairs was very decisive. It is obvious that hairs from several people were present in the car, and that none of them were from the victim.”
The majority opinion states they deny a new trial because “In its most favorable light, Dr. Kirk’s report produces no more than a conflict in expert testimony on a point which the court-martial was expressly informed offered no more than a ‘rather low’ percentage of possibility of identity.” I come to just the opposite view. Dr. Ku-washima’s testimony was the only evidence directly linking the accused with the murder victim. It went un-contradicted. Dr. Kirk’s present proposed testimony might well raise a reasonable doubt in this regard in the minds of the court-martial members, should a new trial be granted.
It should be kept in mind that the trial of this capital case took place in Okinawa, approximately 5 8 00 miles from Dr. Kirk’s University of California residence. In my view, Dr. Kirk’s present testimony is newly discovered evidence.
In this connection see Taylor v State, 180 Tenn 62, 171 SW2d 403 (1943), where two witnesses had been unavailable at the first trial. In ordering the second trial, the appellate court said:
“It is possible that the trial judge took the view that the evidence was not newly discovered, since defendant and counsel knew of it during and before the trial. But, although not newly discovered evidence, in the usual sense of the term, its availability is newly discovered, to which the same principle applies.”
When we consider everything which went on in Okinawa at the time of the preparation for this trial, we can see *791that the accused would have been in no position through his military counsel to insist upon delay of the case until he could have procured the testimony of expert witnesses in the United States.
As to whether or not the accused exercised due diligence in only now presenting Dr. Kirk’s proposed testimony as the basis for a new trial, see Eastern Rock Island Plow Co. v Stout, 84 Ind App 217, 147 NE 160 (1925), where it was said:
“Referring to the first question: The courts often use the expression 'due diligence.’ Due diligence means that quantum of diligence which the law requires. Statements of that kind are, of course, indefinite. Because of the inherent nature of the subject, the most definite general statement that can be made is that to entitle a litigant to a new trial on the ground of newly discovered evidence he must show that he exercised reasonable diligence. That must be the rule; for surely the courts should not require of any litigant that which is unreasonable. And that is the rule generally recognized by the courts.”
In that case it was also said:
“A complaint for a new trial on the ground of newly discovered evidence, pursuant to section 589, Burns’ 1914, must be regarded as a substitute for a bill in chancery. See Moore v Coates, 35 Ohio St. 177. The trial court must determine, in the first instance, whether the proof is clear, strong, and satisfactory; whether an injustice has been done; whether the plaintiff has exercised reasonable diligence; and whether the ends of justice require that a new trial be granted. In passing on each case the trial court exercises a legal discretion, and on appeal its judgment will be reversed only for the abuse of that discretion. It has been aptly said that—
‘A court clothed with power to grant new trials must necessarily be vested with large discretion.’ Moore v Coates, supra.”
This Court is clothed with this power to grant new trials. We certainly should exercise this discretion in favor of this accused on this record.
In addition, there is another point which gravely concerns me. The record shows that fifteen of the prosecution witnesses were affirmed, rather than sworn. The form of affirmation is not disclosed by the record but it is clear only four of these unsworn witnesses were asked whether or not they were Christians. Of the remaining eleven, ten were interrogated as to their understanding of a promise and one was not even asked this. This one witness was Dr. Kuwashima. The swearing of witnesses is certainly an important predicate of our system of jurisprudence. Affirmation is proper only if it is first ascertained why the witness cannot take an oath. In State v Levine, 109 NJ Law 503, 162 Atl 909 (1932), the court said:
“Under the common law, no person could be a witness in a judicial proceeding unless he believed that there was a god and that that god would punish him if he swore falsely. Omichund v Barker, 1 Atk 21, 11 English Ruling Cases 126 (A D 1744). The common law, except in so far as it has been altered or repealed by statute, is the law to-day. Constitution, art. 10, par. 1.
“So Bouvier’s Dictionary defines an affirmation as ‘a solemn religious asseveration in the nature of an oath.’ Greenleaf on Evidence (16th Ed) vol. 1, § 364b, says: ‘All witnesses are to be sworn according to the peculiar ceremonies of their own religion, or in such manner as they may deem binding on their own consciences. If the witness is not of the Christian religion, the Court will inquire as to the form in which an oath is administered in his own country, or among those of his own faith, and will impose it in that form.” [Emphasis supplied.]
In 39 Am Jur, Oath and Affirmation, § 2, the following appears:
“In its broadest sense, an oath is any form of attestation by which a *792person signifies that he is bound in conscience to perform an act faithfully and truthfully. It involves the idea of calling on God to witness what is averred as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favor, in the event of falsehood.
“The word ‘oath’ has been construed to include ‘affirmation’ in eases where, by law, an affirmation may be substituted for an oath.”
I feel that this Court should have heard oral argument on the defense motion for a new trial predicated upon newly discovered evidence. Certainly a convicted person is entitled to such before this Court when faced with the death penalty.
I would grant the motion for a new trial.