(dissenting):
I dissent.
In the case at bar, I find no basis for concluding the court-martial reached its findings during a recess in proceedings. Neither do I believe any fair inference can be made that the court was coerced into terminating its deliberations and announcing its findings. Common sense would dictate that the first of those alternatives was not possible for the obvious reason that the recess was for only nine minutes and, immediately after reconvening, the court announced findings on fifteen separate specifications involving extensive facts. One finding was not guilty, and one included exceptions and substitutions. To me its seems fantastic to say that a court-martial could proceed that speedily, particularly when it had deliberated some three and one-half hours prior to the recess. The second alternative is likewise contrary to good judgment because, had the court not concluded its findings prior to the recess, it would not have immediately gone into secret session with the law officer to put its findings in order. Had it been coerced into deliberating, some time would have been consumed in discussions. Accordingly, I disagree with my associates and point out why, under our previously decided cases, we should affirm the decision of the board of review.
While the record reflects that the president of the court first stated, “We have not reached a finding as of this time,” this was at 4:36 p.m. and the proceedings after the court reopened leave no doubt that the court-martial had reached its findings but preferred to await the morning before consulting with the law officer to put them into proper form. Giving verity to the entire record, then, rather than just to isolated portions thereof, and taking into consideration the task which confronted the court members, it would appear that at the time of the request for adjournment the court members had decided the question of accused’s guilt or innocence but, for reasons best known to themselves, were not ready to announce their findings at that time. There can be many legitimate reasons why, after agreeing upon findings, the members would elect not to call in the law officer for finalization and, if there is any deficiency in the record, it amounts to no more than a failure to show why the request for adjournment was abandoned and the trial continued. In that connection, I point out that fixing the time schedule of a court does not touch on the merits of the controversy but, in view of this peculiar situation, I am prepared to assume that any conversation between the law officer and the court during the recess should have been recorded. However, that is a deficiency which can be corrected, and the affidavits which are usable for that purpose dispel any presumption of prejudice, for they clearly show the conversation did not operate in any way to influence the court’s decision.
My associates, however, do not accept the unrebutted and uncontested affidavits and on some ground unclear to me read into the record reversible error. While I have always subscribed to the position that the proper use of affidavits on appeal is narrow, I point out that in this instance my colleagues acknowledge affidavits may properly be used for our purpose. However, they chose to reject them for the reason that “there is no indication that the defense concedes the existence of the facts to which they pertain.” I have never known such a test to be the rule, and I have always believed that, in a situation such as this, to place a fact in dispute, counter-affidavits are necessary. It is indeed a unique principle which precludes a court from considering undisputed facts which are properly before it merely because the other party does not affirmatively concede their trustworthiness. The averments in the sworn statements are in substantial accord, and the defense does not contest a single fact therein recited. It ought to be obvious why accused does *447not oppose that which he cannot deny and, as a matter of fact, the defense contention before this Court is predicated upon the claim that the communication described in the statements took place. To do that is, in and of itself, a concession of the existence of the facts.
Moreover, another matter bears discussion. Something is said in the Court’s opinion about the Jaw officer disregarding a caveat by holding an unlawful communication with the court. This is not a ease of a law officer participating in secret deliberations of the court. In this situation, he performed his duty in accordance with the law. A law officer certainly does not step out of character when he discusses with the president such matters as the time of trial, recesses, adjournments, or continuances. Paragraph 40 of the Manual for Courts-Martial, United States, 1951, quoted in part by my associates, in speaking about the duties of the president, provides insofar as relevant:
“After consultation with the trial counsel and, when appropriate, the law officer (586), he sets the time and place of trial and prescribes the uniform to be worn.
“For good reason, he may recess or adjourn the court (e.g., 39d), subject to the right of the law officer to rule finally upon a motion or request of counsel that certain proceedings be completed prior to such recess or adjournment, or that a continuance be granted (58). Whether a matter of recess or adjournment has become an interlocutory question will be finally determined by the law officer (57 d).”
It is to be noted that, in connection with a recess or adjournment, the final decision on whether an interlocutory question is involved is to be decided by the law officer. In light of those provisions, it would indeed be a sorry situation .to conclude that communications between the president and law officer are unlawful. Moreover, paragraph 82 of the Manual for Courts-Martial, which deals with matters to be recorded, does not require that consultations and communications on those matters be reflected in the record unless they occur in open court. It does, however, provide that closed conferences between the law officer and the court on the form of findings be recorded. Accordingly, this record does not ipso facto condemn the law officer.
As my brothers correctly note in the majority opinion, the presumption of prejudice may be overcome, and, at this level, by the method herein employed. It is, therefore, difficult for me to understand why this conviction is reversed when the unrebutted affidavits negate any possible prejudice to the accused. They show that the law officer did not participate in any way in the deliberation or findings; that the court members were not coerced; that the findings had already been decided by the court-martial before the recess, in closed session and upon secret ballot; that the discussion during recess was merely for the purpose of determining whether the court-martial could continue after the dinner hour; and that in the course of the discussion, when it came to the law officer’s attention that the court had a mistaken understanding as to procedure and that all that remained was to put the findings in proper form and to continue with matters pertaining to sentence, he suggested the court complete its task. Thus, it is clear beyond peradventure that accused was not prejudiced.
I would affirm the decision of the board of review.