(concurring):
I concur.
The accused was initially found guilty of larceny, in violation of Uniform Code of Millitary Justice, Article 121, 10 USC § 921. He was sentenced to dishonorable discharge, total' forfeitures, and confinement at hard labor for six months. The convening authority approved the sentence but suspended the execution of accused’s discharge until his release from confinement or completion of appellate review, whichever was the later date. An Army board of review set aside the findings and sentence and ordered a rehearing. At this trial, accused was again convicted and sentenced, but a board of review once more set aside the findings and sentence and ordered a second rehearing. Tried for the third time, the accused was again found guilty. However, his sentence was on this occasion limited to dishonorable discharge and total forfeitures. The convening authority approved the findings and sentence, with a technical suspension of the dishonorable discharge pending completion of appellate review. The board of review affirmed, and we granted review on the issue of the law officer’s instructions on insanity and to determine whether accused was entitled to a probationary suspension of his discharge.
I join with Judge Latimer in his conclusion that the vacation of the suspension of accused’s discharge, pursuant to Code, supra, Article 72, 10 USC § 872, renders moot the question of whether he was entitled to a probationary suspension of the punitive separation adjudged. Thus, we need not consider this issue further, and I pass to the law officer’s instructions on the question of mental responsibility, concerning which I desire to set forth my views more fully than Judge Latimer has chosen to do.
The facts of this unfortunate ease-need not be related in detail. Suffice it to say the accused was appointed by the-Finance Officer to pay certain officers on April 1, 1957. Upon turning in excess funds and copies of required payroll documents, he failed to account for the sum of $688.00. He subsequently confessed to the theft of this sum.
Two psychiatrists testified at the-trial. Dr. Hill, appearing for the defense, related his belief that, at the time-of the offense, accused was unable to-adhere to the right. Dr. Haeussler, ap*190pearing for the Government, opined that the accused, at the time of the theft, was able to distinguish right from wrong and to adhere to the right. 'Thus, the question of accused’s mental responsibility was placed in issue before the court-martial.
At the conclusion of the trial, the law officer instructed the members of the court with respect to this issue:
“The accused is -presumed to be sane at the time of the alleged offense. This presumption remains in effect until, from the evidence, a reasonable doubt of his sanity at the time in question appears. When, however, as in this case, substantial evidence tending to prove that the accused was insane at the time of the alleged offenses is introduced, the sanity of the accused is an essential issue of fact.
“In determining the question of the sanity of the accused, you are entitled to consider his sanity in the light of your common sense and your general knowledge of human nature and the ordinary affairs of life. Thus you may consider that the general experience of mankind is that most people are sane. This general experience may be taken into account in weighing the evidence pertaining to the issue of the accused’s sanity. The burden of proving the sanity of the accused beyond a reasonable doubt, like every other fact necessary to establish the offense alleged, is upon the prosecution.
“If, in the light of all the evidence and taking into consideration your general knowledge of human nature and the ordinary affairs of life, you have a reasonable doubt as to the mental responsibility of the accused at the time of the alleged offense, you must find the accused Not Guilty of that offense.” [Emphasis supplied.]
This instruction appears in Appendix IX, Department of the Army Pamphlet 27-9, The Law Officer, April 1958, and is apparently based upon United States v Biesak, 3 USCMA 714, 14 CMR 132, a decision which is as variously interpreted as its readers are numerous. There, the Court was faced with an instruction by a law officer on the presumption of sanity and its use as evidence in a case wherein an issue was raised concerning the mental responsibility of the accused. Judge Brosman, writing for a unanimous Court, held that reference to the presumption of sanity in advice to the court members concerning mental responsibility was inartful, particularly when the law officer adverted to the “evidence” supplied by the presumption. However, in the absence of a request for clarification by defense counsel, the instruction was held not to be prejudicial. Since that time, other decisions have been reached by this Court which affect the validity of some of the matters discussed in Biesak, supra. Thus, in United States v Ball, 8 USCMA 25, 23 CMR 249, we pointed out that law officers would be well advised to omit the ambiguous term “presumption” from their instructions to the court members. We reiterated this injunction in United States v Miller, 8 USCMA 33, 23 CMR 257, and United States v Crowell, 9 USCMA 43, 25 CMR 305. The rationale of those cases is equally applicable to instructions on sanity, and I am of the opinion that, evidence of lack of mental responsibility or capacity having been introduced, the law officer should not advise the court concerning the “presumption” of sanity.
I do not find anything in United States v Biesak, supra, which is inconsistent with my position here. There, for differing but equally sound reasons, Judge Brosman pointed out, at page 720, the same principle:
“. . . Under this view, in a criminal case the presumption of sanity would vanish once evidence was introduced which could operate to produce a reasonable doubt concerning the sanity of the accused. For most purposes, if not for all, any evidence, whether from prosecution or defense witnesses, which sufficed to raise the issue of sanity would cause the presumption of sanity to disappear- — -and thereby the jury or court-martial would be rid of its prior duty to assume that the accused was sane. The same evidence which *191sufficed to raise the issue of sanity, and thereby to necessitate the giving of instructions on sanity, would itself banish the presumption from the case — -ivith the result that in the usual case no instruction could thereafter properly be given as to this presumption.” [Emphasis supplied.]
The elimination from consideration by the court-martial of the “presumption of sanity” does not mean, however, that the court members are not permitted to draw the inference that the accused is in fact responsible from the rational probability upon which the presumption was originally based. In short, the fact that a great majority of men are sane and the members’ observation of the accused, as well as their study of the circumstances surrounding the offense, may cause them to reject the evidence of irresponsibility and to conclude that he met the proper mental standards. Davis v United States, 160 US 469, 16 S Ct 353, 40 L ed 499 (1895), thus, speaks of the “evidence” supplied by the presumption,' and, as noted by Judge Brosman, in United States v Biesak, supra, a Massachusetts court has referred to it as “the rational probability on which the presumption rests.” Commonwealth v Clark, 292 Mass 409, 198 NE 641, at page 645. This Court has made practical application of the principle, for, in United States v Burns, 2 USCMA 400, 9 CMR 30, it ordered a rehearing on the basis of instructional error concerning the accused’s mental responsibility wherein the only evidence concerning his mental state was adverse to the Government. Had we not impliedly recognized the right of the court members in that case to reject the testimony of accused’s witnesses and rely upon the common experience of mankind, we would have been required to dismiss the charge for insufficiency of evidence. Code, supra, Article 67(e), 10 USC § 867 (e). On the other hand this does not mean that the judicially recognized fact that most people are sane will be sufficient to establish sanity in all cases and without regard to the quantum of proof of insanity. It may be the latter is so strong that “a reasonable mind must necessarily have had a reasonable doubt.” Cooper v United States, 218 F 2d 39, 41 (CA DC Cir) (1954); Hopkins v United States, — F 2d — (CA DC Cir), decided December 11, 1959.
In sum, then, I believe it improper to advise the members of a court-martial that the accused is presumed to be sane when sufficient evidence has been introduced to raise an issue concerning his mental responsibility. United States v Biesak, supra; United States v Ball, supra. It should be equally apparent that, should no such issue be raised, instructions on sanity are normally not required, for there is little reason to present legal principles to a jury in vacuo. However, the fact that the presumption is eliminated does not mean that the fact finders may not consider its predicate and conclude therefrom that evidence of irresponsibility should be rejected. In weighing evidence, a member is expected to utilize his common sense and his knowledge of human nature and of the ways of the world. Manual for Courts-Martial, United States, 1951, paragraph 74a (2). It may, therefore, be proper to call fairly to the attention of the court-martial that they may take into account the common experience of mankind in weighing the question before them. Davis v United States, supra; Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 168.
Applying the foregoing principles to the law officer’s instructions in this case, I have little difficulty in concluding the accused was not prejudiced by the mention therein of the presumption of sanity. Immediately following the statement that the accused “is presumed to be sane,” the law officer advised the members that substantial evidence tending to prove that accused was insane had been introduced and that accused’s responsibility was an essential issue of fact. He subsequently informed them that the burden of proof was upon the prosecution to establish sanity beyond a reasonable doubt and that, unless they were so convinced, it was their duty to acquit. When the instructions are construed as a whole, there is no danger the members gave an unwarranted effect to the term “pre*192sumption” or that they considered it as ■evidence in the case. United States v Ball, supra; United States v Biesak, supra. Nor was it improper to refer to the right of the members to consider the general experience of mankind that most people are sane. That rational basis for the presumption of sanity is a matter from which the members may correctly infer responsibility. Davis v United States, supra; Commonwealth v Clark, supra.
It is clear, therefore, that the instructions could not have led the court-martial astray in their deliberations. Accordingly, I join with Judge Latimer in affirming the decision of the board of review.