(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I agree with the author of the principal opinion that the record offers a sufficient basis for the law officer’s ruling admitting accused’s confession in evidence. His counsel’s instruction to him that he remain silent in order to protect himself and his belief that the attorney would be “mad” because he made a statement allows the inference that the promised immunity did not induce his admissions. Hence, it cannot be said that the law officer erred in overruling the objections made to receipt of this evidence.
However, I disassociate myself from the statement that it is “uncertain” whether a private conversation between the accused and his lawyer can ever be the basis for repudiation of the legal consequences of his confession. ' That issue is not now before us, and it is immediately apparent to me that a myriad of situations may exist wherein the private consultations of an attorney and his client might bear upon the voluntariness of his statements. I prefer for them to be presented to us before deciding the issue.
I have heretofore recorded my views concerning the vice inherent in instructing the members of the court-martial “In law, prima facie evidence of a *85fact is sufficient to establish the fact, unless it is rebutted.” See my separate opinions in United States v Simpson, 10 USCMA 543, 28 CMR 109, and United States v Adkins, 11 USCMA 9, 28 CMR 233. The contrary is now settled law, and there is little use in reiterating the concepts I have previously advanced. Accordingly, I join in the conclusion of my brothers that the instruction is not prejudicially erroneous and pass to the other issues presented by accused’s appeal.
The accused was found guilty of four specifications of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and two specifications of housebreaking, in violation of Code, supra, Article 130, 10 USC § 930. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for ten years. The convening authority disapproved the findings of guilty of one specification of larceny on the basis of insufficiency of the evidence. He otherwise approved the findings and sentence. The board of review affirmed the findings but substantially reduced the period of confinement involved. Thereafter, we granted accused’s petition for review on the question of whether the law officer should have admitted in evidence a confession obtained from him by Office of Special Investigations agents; whether a continuance should have been granted for the purpose of having accused examined by military psychiatrists ; and the propriety of the instruction mentioned above on the effect of prima facie evidence. The author of the principal opinion and Judge Latimer agree that these questions must be resolved in favor of the Government. As I believe they misapprehend the situation presented with respect to the continuance issue, I am unable to join in the affirmance of the decision of the board of review.
On October 13,1958, accused’s defense counsel presented a request for a psychiatric evaluation of the accused to the convening authority’s Director, Military Justice. He based his motion upon the accused’s record of a disturbed life, commencing when he was eight years of age and extending to his commission of the present offenses. He pointed out that the accused had been almost continuously incarcerated in juvenile homes during his adolescent years. As a result of psychological testing and psychiatric examination in several of these institutions, mental therapy was prescribed and administered. The Director, Military Justice, apparently ruled on this motion and denied it on the basis that “there does not appear to be sufficient information to warrant a psychiatric evaluation at this time.” The Director, however, pointed out to the defense counsel that a psychiatric evaluation will be granted if “you can produce any information which would indicate that the accused was incompetent at the time of the commission of the offense, or is now unable to cooperate in his defense.” On December 5, 1958, the defense counsel again submitted his request for a psychiatric examination of the accused to the staff judge advocate “In accordance with your instructions” and the pertinent provisions of the Manual for Courts-Martial, United States, 1951. In support of his motion, he also submitted a psychologist’s report, accomplished by the California Youth Authority in 1953, which set forth in graphic detail the sordid circumstances under which accused was reared. The report concluded that:
“At the present time there is no marked emotional pathology apparent nor any particular distortion of the rational processes. Rather, we see here an insecure lad who has never known the normal affection, supervision and guidance which an adequate home could have provided. His delinquency [arson] has been one way of rebelling against his felt insecurity and inadequacy and his sexually deviate behavior [with his six-year-old sister and other children] has been one way of immediately achieving a type of emotional and social satisfaction.”
The reporting psychologist pointed out that the prognosis for accused’s becoming a useful member of society was probable if he were afforded a full training course in a juvenile institution *86and placed in'a suitable foster home.
The staff judge advocate denied the defense request on the ground that there was no substantial basis for concluding that the accused was insane, and the accused was brought to trial on December 23, 1958. At the outset of the hearing, a motion for psychiatric examination was addressed to the law officer in closed session. It should be noted here that accused was being defended at the trial by another attorney, his former counsel having been released in order that he might return to the United States.
In addition to the psychiatric report of the California Youth Authority, the defense counsel adduced evidence to the effect that a check had been made with four Japanese clinics in an effort to determine whether they would be willing to examine the accused. Three refused absolutely, and the fourth agreed to undertake the task in return for a fee of approximately one hundred and fifty dollars, subject to the conditions that the psychiatrist not be required to testify in court and that his certificate not be compared with any other psychiatric examination. This doctor also pointed out the inherent difficulty in examining a patient when the doctor did not speak fluent English and the patient was not able to speak Japanese. The defense was unable to discover any American, British, or other English-speaking psychiatrist in the area outside personnel of the armed services. As cogently pointed out by the accused’s counsel, “he is either going to get an examination from the military in Japan, or as it stands now, he won’t get one at all.” He also pointed out to the law officer that it was not the defense’s contention that the accused was not mentally responsible or capable, but simply that counsel did not know his condition and desired to ascertain it.
I agree with the author of the principal opinion that we may pass the question whether the convening authority should have personally ruled on the defense’s pretrial motion, for the same issue was presented before the law officer and preserved there for this Court’s scrutiny. However, I believe the Chief Judge goes astray in treating counsel’s motion simply as one for further inquiry into the accused’s mental condition. The record clearly demonstrates, to me that counsel’s purpose was to investigate the possibility of insanity as a defense or utilization of an up-to-date' examination in mitigation and extenuation. Thus, it was obviously his purpose in adducing evidence of the lack of appropriate civilian psychiatric facilities in Japan to indicate to the law officer that he was forced to rely upon military medical authorities. Accordingly, the real issue facing the Court is whether the accused was deprived of an opportunity to prepare his case. It is clear to me that he was.
In United States v Frye, 8 USCMA 137, 23 CMR 361, we were faced with a somewhat similar situation. In that case, accused sought a continuance for the purpose of having a mental examination conducted by psychiatrists of a school of diagnosis different from those who had already tested him and found that he was both responsible and capable. The majority concluded that the' law officer did not err in denying a delay in the trial for the stated purpose. Nevertheless, the Chief Judge ordered the board of review to conduct a further inquiry into accused’s sanity in order to find whether accused could have possibly obtained evidence favorable to his cause from practitioners of different diagnostic beliefs. He pointed out that if the accused could produce evidence of a mental condition affecting his competency, he was entitled to a rehearing. Judge Latimer was of the opinion that the law officer did not abuse his discretion in denying continuance under the circumstances there presented but joined with the Chief Judge in order to effect a practical disposition of the cause. While I dissented on the basis that the accused was denied his right to perfect a possible defense, I need not rely solely on the arguments I made there in order to support my conclusion here, for I believe that even Judge Latimer’s separate approach to the question demands reversal in this case. There, he pointed out that Frye had been examined by psychiatrists in Morocco and Germany and that these experts had been made avail*87able to counsel. Moreover, he had the opportunity to consult with other psychiatrists in Germany and to obtain their opinions. Finally, from the time of his appointment to the time of trial, he did nothing affirmative to develop leads for prospective testimony. Thus, he concluded that defense counsel did not exercise diligence in the case and found a substantial basis in the record for the law officer’s denial of the continuance. In contrast, this case demonstrates that accused’s counsel sought from the time of the pretrial investigation to have accused examined by competent experts. Frustrated in his efforts by the contrary view of the Director, Military Justice, and the staff judge advocate, he investigated the possibility of having the matter handled by Japanese doctors, three of whom declined outright and the fourth of whom imposed impossible conditions. An apparent effort was made to find other American or British psychiatrists. This, too, was singularly unsuccessful. We are then confronted with a situation in which counsel has done everything possible to investigate a possible defense but, because all parties were serving in a foreign country and military assistance was denied him, he was unable -to complete his inquiry.
Moreover, I am quite unable to discern any basis in this record for denying counsel an opportunity to prepare his case. The principal opinion applies the rules set forth in the Manual, supra, regarding investigation of sanity by official agencies during the pretrial or trial proceedings. Certainly this Court has never held that a defense counsel serving overseas is bound by these procedural rules in investigating possible defenses, and I suggest that they were never intended as restrictions upon the use of military hospital facilities by an accused to whom no civilian agency is available.
In sum, then, I am convinced that the trial defense counsel in this case sought delay solely for the purpose of ferreting out a possible defense in the case. The psychiatric report’s detailed history of accused’s early childhood and his extremely poor record in the Air Force offered him some basis for that investigation. While it may have been insufficient to require a trial inquiry into accused’s sanity, it is enough to remove any label of frivolity from his request. He demonstrated that he had worked diligently on the problem prior to the trial and that the only possible experts available to him were those employed in military hospitals. Under such circumstances, I am certain he was entitled to an order from the law officer directing that such facilities be made available and the necessary delay for their use. Thus, I would conclude that the law officer erred prejudicially in his denial of the defense motion.
I would reverse the decision of the board of review and authorize a rehearing.