(concurring in part and dissenting in part) :
I concur in part and dissent in part.
At a rehearing before a general court-martial, the accused was found guilty of carnal connection with a fowl and wrongfully commiting an indecent, lewd, and lascivious act by exposing himself to a named person, both delicts being alleged as violations of Uniform Code of Military Justice, Article 184, 10 USC § 934. He was sentenced to dishonorable discharge, confinement at hard labor for five years, and forfeiture of all pay and allowances. With some reduction in the sentence, intermediate appellate authorities affirmed, and we granted review on the issues whether the specifications charged alleged offenses and whether the law officer’s instructions concerning the consideration by the court of the voluntary nature of accused’s confession were proper.
Accused initially argues before us that the specification alleging that he had carnal connection with a fowl does not state an offense under the Code. I join with my brothers in their conclusion that such conduct tends directly to reflect discredit upon the armed forces and that its recital in the specification delineates an offense in violation of Code, supra, Article 134. I trust, however, their characterization of accused’s behavior as “criminal per se” is not intended to detract from the formerly expressed requirement that court members be instructed that they must find as a fact such acts are discreditable. See United States v Grosso, 7 USCMA 566, 23 CMR 30; United States v Williams, 8 USCMA 325, 24 CMR 135; and United States v Gittens, 8 USCMA 673, 25 CMR 177. Moreover, as the question whether accused’s acts amount to sodomy, in violation of Code, supra, Article 125, 10 USC § 925, is not presented by this record, I do not think it necessary now to decide that issue. Cf. Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 281, and Burdick, Law of Crime, § 876, et seq. Thus, I prefer to limit my concurrence in the majority’s disposition of this matter to its ultimate holding that the specification alleges an offense in violation of Code, supra, Article 134.
The second question presented for our determination is whether the other specification, as modified by the law officer upon motion and the court members in announcing findings of guilty by exceptions, also alleges an offense in violation of the Code. While I have serious reservations concerning whether the crime as found amounts to more than the offense of indecent exposure, it is certain the verdict with respect to this specification could have had no impact upon the accused’s substantial rights. The findings of the court-martial did no more than set forth the conclusion of the members concerning those factual allegations which they believed to be proven beyond reasonable doubt. The law officer, in view of the sentence imposed at the original trial, advised the court that the maximum penalty which might be imposed in this case was dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. He set forth this instruction without reference to the fact that a rehearing was being conducted. Cf. United States v Jones, 10 *222USCMA 532, 28 CMR 98. As that was also the maximum punishment for the offense of having carnal connection with a chicken, the question of the precise offense involved in the specification with which we are now concerned could not have affected the court’s deliberations. Compare United States v Eschmann, 11 USCMA 64, 28 CMR 288. Hence, I believe we engage in little more than a rhetorical exercise when we sift the record in an effort to find a serious offense within the court-martial’s verdict. Thus, I am unable to join my brothers in their rationale concerning this issue.
It is upon the answer to the third question presented by accused’s petition that I find myself completely at odds with a majority of the Court. My brothers do not reach the basic controversy over the sufficiency of the law officer’s instructions concerning the vol-untariness of accused’s confession, for they conclude the record shows an informed waiver of any deficiency which might be involved. Moreover, I find a disposition on their part to give no weight to accused’s declaration that he lacked a sufficient command of the English language to understand the advice concerning his rights under Code, supra, Article 31, 10 USC § 831, given him by criminal investigators. In my opinion, an issue was raised concerning the matter and I would not invoke the doctrine of waiver.
With respect to the issue being pre•sented, the accused testified that his command of English was very poor and that lie was unable sufficiently to comprehend the advice given him by the investigators to make a meaningful election either to remain silent or to make a ■statement. Indeed, the investigator who obtained the confession indicated he was concerned about whether accused, a person of Mexican descent, understood his rights. Other witnesses testified that accused consorted principally with Spanish-speaking soldiers. In rebuttal to the defense contention, ■the prosecution introduced extensive •evidence tending to establish that accused's rights were carefully explained -to him and he stated to the investigator that he understood them. Moreover, various superiors testified to accused’s ability to comprehend English and to a previous acknowledgment that he was aware of his rights under Code, supra, Article 31.
In my opinion, the foregoing matters raise an issue concerning accused’s understanding of the warning admittedly given him. When we refuse to give effect to his sworn declarations, regardless of the weight of the contrary testimony, we transcend our powers under the Code, supra, Article 67, 10 USC § 867, and substitute our judgment for that of the fact finders. With such a proposition I cannot agree, and I prefer to conclude that an issue is properly presented in the record and that it was incumbent upon the law officer to give the requisite instructions. See United States v Morphis, 7 USCMA 748, 23 CMR 212.
I am equally unable to agree with the proposition that the accused, by his failure to lodge an appropriate objection, knowingly waived anj' defect in the law officer’s instructions on voluntariness. See my dissenting opinion in United States v Slamski, 11 USCMA 74, 28 CMR 298. Initially, I note that the question of the voluntariness of accused’s confession is the only real issue in the case. United States v Kowert, 7 USCMA 678, 23 CMR 142. Next, the state of the law in this area is so unsettled that it is unreasonable to charge counsel with the duty of formally objecting to its delivery. Finally, the basic purpose of enforcing waivers is to require counsel to call defects to the attention of the law officer in order that corrective action may be taken at the trial level. United States v Brown, 10 USCMA 482, 28 CMR 48. As will hereinafter be shown, the law officer utilized an Army form instruction from which he had carefully deleted all reference to proof of voluntariness beyond a reasonable doubt. In view of his apparently deliberate choice, it is hard to conclude that timely objection would have caused him to utilize the standard which the defense now urges upon us, and, under such circumstances, I prefer to reach the merits of the issue before us.
The law officer’s instructions on the *223voluntariness of the accused’s confession included the following pertinent statements:
“ You may accept the [accused’s] statement as evidence only if you determine that it was voluntary. If you determine that the statement was involuntary, you must reject it and disregard it as evidence in the case.
“With reference to thé evidence that the accused was unable to comprehend the English language at the time he was advised of his rights under Article SI by Sgt Gabbett, you are instructed that the burden of proof is upon the prosecution to establish not only that the accused was advised of his rights under Article 31 but also that he was mentally able to understand his rights. If, as a matter of fact, the accused’s inability to comprehend the English language was of such a degree that he was mentally unable to understand his rights, the statement obtained under such circumstances was obtained in violation of Article 31, in which ease no weight whatever may be given to the statement. Consequently, unless you find that the accused was mentally able to understand his rights under Article 31 at the time he was advised of such rights by Sgt Gabbett, you should find a failure to comply with Article 31 and give no weight whatever to the statement obtained under such circumstances.”
Thereafter, the members of the court-martial were informed they must be convinced of accused’s guilt beyond a “reasonable doubt,” and that term was extensively defined.
The instructions given by the law officer were basically those suggested by this Court in United States v Jones, 7 USCMA 623, 23 CMR 87, although we were not there confronted with the narrow question now facing us. Nevertheless, that case points out an important consideration, i. e., there are two determinations of admissibility to be made with respect to every confession and admission. First, the law officer must pass upon the question of its voluntary character. Second, the members of the-court-martial must make, during their deliberations, an independent determination of the same issue. United States v Jones, 7 USCMA 623, supra, at page 628. The law officer’s action is. purely interlocutory, and his ruling concerning the receipt of the statement need be based only upon a preponderance of the evidence. Manual for Courts-Martial, United States, 1951, paragraphs 57p(l), 67e. In my opinion, however, a different standard must be applied by the court members in-their final resolution of the same issue. Some of our language in United States, v Jones, 7 USCMA 623, supra, points-to that conclusion. Thus, we there said, at page 628:
“ . . . [S]ince voluntariness, as well as trustworthiness, is a factual' question, it must be determined by the jury or by the court members.” [Emphasis supplied.]
Army lawyers seem to be of the same-view, for, in their instructional guide-for law officers, the requirement that voluntariness be proved beyond a reasonable doubt is imposed. Appendix. XXI, Department of the Army Pamphlet 27-9, The Law Officer, April 1958. Moreover, although authorities are-scarce, the same rule seems to have been adopted within the Federal courts.. Thus, in Patterson v United States, 183 F 2d 687 (CA 5th Cir) (1950), at page 690, that part of an instruction which required the jury to give the defendant' the benefit of a reasonable doubt concerning the voluntariness of his confession was characterized as “the correct rule.” In Wilson v United States, 162 US 613, 16 S Ct 895, 40 L ed 1090 (1895), at page 624, language is found', which bespeaks the applicability of the doctrine of reasonable doubt:
“When there is a conflict of evidence as to whether a confession is- or is not voluntary, if the court decides that it is admissible, the question may be left to the jury %oith the' direction that they should reject the' confession if upon the lohole evidence' they are satisfied it was not the voluntary act of the defendant.” [Emphasis supplied.]
*224The clearest exposition of the rule is to be found in Mora v United States, 190 F 2d 749 (CA 5th Cir) (1951), wherein Judge Rives, speaking for the Court, declared at page 752:
“ . . . We think that the district court properly admitted the confession in evidence, and then by its charge, left the jury free to reject the evidence unless the fairy believed beyond a reasonable doubt that it was made freely, voluntarily and without compulsion or inducement.” [Emphasis supplied.]
Finally, the view that the voluntariness of a confession should be found beyond a reasonable doubt logically follows from the character of such a statement. We have pointed out that voluntariness is a factual question. United States, v Jones, 7 USCMA 623, supra. Once determined to be voluntary, it is frequently termed the highest order of proof. Indeed, this Court has so characterized it. United States v Monge, 1 USCMA 95, 2 CMR 1. Certainly, such an important item of evidence, tending as it does to make the Government’s case irrefutable, should have the predicate upon which its admissibility and trustworthiness depends measured by the standard of proof applicable to other factual determinations in criminal causes. To me, this is the sounder approach, and I conclude that instructions on voluntariness must contain appropriate references to that doctrine. See Department of the Army Pamphlet 27-9, supra.
Turning to the instructions given in the instant case, I am at once met with the Government’s argument that the court members, within the four corners of the law officer’s instructions, were advised they must determine voluntariness beyond a reasonable doubt. That contention must fail. The law officer’s omission of any reference to the standard in his instructions on the confession is conspicuous. While he adverted elsewhere in his advice to the doctrine of reasonable doubt, he specifically limited it to the ultimate question of accused’s guilt or innocence to proof of the elements of the offenses charged. Rather than curing his failure to provide an appropriate measure in the confession instructions, his specific references to the rule in other parts of his advice had the effect of highlighting the absence of the requirement. Thus, I conclude that his instructions were prejudicially deficient, and reversal must follow.
I would reverse the decision of the board of review and order a rehearing.