(dissenting):
I dissent.
It appears as though my associates are reversing this case largely for the reason that a publication on psychiatry used in a limited way by trial counsel bears the Army and Air Force authentication. Merely because a pamphlet is prepared, published, and distributed by the services and carries a Technical Manual designation does not make it bad or inaccurate. Neither does it justify the charge that it is a form of command control; nor is the mention of its name by trial counsel error per se. The pamphlet is nothing more than a short dissertation on the principles of psychiatry as framed by military law and printed in such a manner as to aid military doctors and permit ease in distribution. Significantly, if I were to delete the name on the cover and substitute a copy of “Psychiatry and the Law” by Guttmacher and Weihofen or “Psychiatry and the Law” by Hoch and Zubin in place of the service pamphlet, I would find the same principles of psychiatry being expounded. If it was necessary to surmise, I would conclude that much of the information contained in the military publication is based on the views of recognized civilian psychiatrists who are used by the services for consultation purposes. Except as to the legal test for insanity, the doctrine in the Technical Manual and principles found in standard works are in *544accord, although in certain areas the experts do not always agree. However, if the law on insanity in the military happens to be different from civilian law, that is unimportant, for the former is as set out in the Manual for Courts-Martial, United States, 1951, and approved by this Court and is not made by either military or civilian doctors. In that connection, it is of some importance to note that in the principal opinion the Court does not suggest that the publication contains any doctrine not recognized by medical authorities.
Initially, I must disagree with my associates’ pronouncement that trial counsel sought to transcend the boundaries of usability this Court has marked out for the Technical Manual. I state unequivocally that this Court has not set limits on the right to use the Technical Manual for purposes of cross-examination but has led the working people in the field to believe to the contrary, for we have said it is in the same category as any textbook on insanity and that it may be used in connection with the testimony of an expert witness. To support that statement, I quote from Judge Ferguson’s opinion in United States v Gray, 9 USCMA 208, 25 CMR 470, which at the time of publication reflected the views of a unanimous Court:
“In United States v Schick, 7 USCMA 419, 22 CMR 209, we discussed the use that may be made of the ‘Tech Manual.’ We said that at most it occupies the same position as any other ‘text book or treatise on the subject of insanity,’ and as such, it is not competent evidence of either the facts or the opinions advanced by the authorities. While recognizing that it may be used to a limited extent in connection with the testimony of an expert witness, ‘it does not have any independent probative value.’ It may be used as any other treatise as an aid in framing instructions on a particular issue. Cf. United States v Rinehart, 8 USCMA 402, 24 CMR 212. United States v Gilbertson, 1 USCMA 465, 4 CMR 57.”
If from that language trial counsel was mistaken in concluding that he was well within his rights to use the pamphlet for cross-examining purposes, then he is in the company of this dissenting Judge. As I read the opinion, the Technical Manual may be used in a limited way in connection with the testimony of an expert witness and that is the manner in which it was used.
The second facet of this dispute involves the contention that trial counsel erred when in cross-examination he made mention of the “policeman at the elbow” test. He combined his cross-examination about that test with the fear of detection and apprehension yardstick, and both have been recognized by us. In United States v Smith, 5 USCMA 314, 17 CMR 314, a majority of the Court expounded this view.
“It may then be asked whether this Court views as correct the test stated in the 1950 edition, or that found in the 1953 version, of TM 8-240. In the only important sense we deem each to be correct since, although differing somewhat in wording, they possess an identical core of meaning. That meaning simply has to do with whether the prospect of penal sanctions would have deterred the accused from the conduct in question — in short, whether punishment had significance for him as to that act. This is made clear in paragraph 5c of the 1950 Technical Manual, which states in explanation of the ‘policeman’ test that ‘No impulse that can be resisted in the presence of a high risk of detection or apprehension is really very “irresistible.” ’ Unfortunately the wording of paragraph 5a of that same document with respect to the ‘policeman’ test might, if taken alone, be construed in a slightly different manner — a circumstance which doubtless produced the clearer phraseology of the later edition of the Technical Manual.
The test is not without support by civilian experts, for in “Psychiatry and the Law” by Hoch and Zubin, 1955, at pages 63 and 64, I find the following statement:
“Some psychiatrists like the old ‘policeman-at-the-elbow-test.’ This formula would ask the expert one *545question: 'Would this man have committed the act had there been a policeman at his elbow ?’ It is a concrete way of asking whether the defendant would have been influenced by the certainty of identification. This rough and ready rule corresponds to the popular concept of a good criterion. If mental illness so influences a person that he commits a crime in the presence of a policeman, it must be assumed either that he was hopelessly in the grip of an uncontrollable impulse or that he felt that his act would accomplish so vast a public benefit that no one would blame him for it. Either way, there is a good common-sense case made out for acquitting the defendant. This is not a difficult test to apply. The psychiatrists can usually form a pretty shrewd opinion about whether the accused would have proceeded with his act even in the presence of a policeman. It would furnish no umbrella to the psychopath, because the psychopath usually has too good a sense of timing to commit a serious crime in the presence of a policeman. It would protect the paranoiac who commits a crime to achieve a great public benefit, or to make himself a martyr. It would also protect the schizophrenic who mows down people in wild catatonic excitement. This formula disposes of irresistible impulse because an impulse that can be resisted in the presence of a policeman is obviously not irresistible.”
Also, in “Psychiatry and the Law” by Guttmacher and Weihofen, 1952, I find authors friendly to the military treatment of insanity who seem to recognize the “policeman at the elbow” concept. I set out two separate quotations from those authorities, the first which expresses a view on the military consideration of mental illness and the second their conclusion of the test. At page 413 I find the following view:
“Although we might expect the armed forces to employ in court-martial a more summary procedure than do the civil courts, the fact is that both the Army and the Navy today employ a level of scientific jurisprudence which the civilian courts have not yet attained. In the Navy, the Judge Advocate General seeks medical counsel from the Bureau of Medicine and Surgery before handing down legal opinions in cases involving behavior problems. The Legal Medicine Branch acts only in an advisory capacity, but has been given the widest latitude in appraising problems of culpability. The Army during World War II had a bulletin prepared dealing with psychiatric testimony before courts-martial. The irresistible impulse was included in deciding whether the defendant was insane at the time of the act charged.”
The second quotation is found at page 410 and it sets out this formula:
“The term ‘irresistible impulse’ is not a very good one. Irresistible implies that the person was absolutely unable to resist; impulse suggests an urge that is sudden and overwhelming but momentary. Such conditions exist — for example, in the irrational acts of confused epileptics, paretics, and schizophrenics- — but they are rare. More common are urges which are not wholly irresistible, and which are not of sudden overwhelming force. Most exhibitionists, for example, have enough control not to yield to their impulse in the presence of a policeman.”
Moreover, it is to be noted that the defense medical expert agreed with the fear and detection principle, and with the foregoing authorities as a base to support the test, I am at a loss to understand why reference by trial counsel to the formula could be error. But more important, I fail to understand why my associates fail to give consideration to the rights of counsel who is cross-examining. Surely he has some latitude in seeking to discover any weakness in the foundation supporting the expert’s conclusion. A medical expert was on the stand, and trial counsel was seeking to test the base of his opinion. The doctor’s experience in psychiatry consisted of one year in residency and one year of practice prior to trial. He was relying on medical authorities to support his views and so *546far as I understand the law, it is a permissible practice to use a textbook or treatise for the purpose of testing the validity of his conclusions. The same questions could have been asked had trial counsel been using the authorities I quote above, and any other for that matter. Certainly, if we meant what we said in United States v Gray, supra, and if the Technical Manual occupies the same position as any other text, it can be used to fortify or weaken the conclusions of the expert.
In connection with this same subject, it is said in the majority opinion that the Technical Manual was used over the objection of defense counsel. I read the record quite differently for, when the document was first mentioned, defense counsel requested that it be admitted in evidence. The law officer disagreed, and properly so. This ruling was prior to the questions which took the form of asking the psychiatrist whether he agreed or disagreed with stated principles of insanity which were incorporated in the particular question. The doctor agreed with some of the concepts, disagreed with others and demurred to a few which he claimed were expressed poorly. It was only after some half a dozen questions had been asked and answered that defense counsel made the following statement:
“I’m going to propose an objection to this whole line, I guess you would call it questioning. I don’t know if the trial counsel is trying to draw some credit from the testimony of the Doctor, but it seems right now to be giving a lecture on irresistible impulse. I don’t think the trial counsel is an expert. To my knowledge, Doctor Astrachan has not referred to the law of irresistible impulse in his argument. I would like you to, Mr. Law Officer, to instruct the trial counsel to stick to, as best he can to the testimony that was elicited upon the direct examination and go into irresistible impulse on his own time.”
If that is a valid objection, it is no more than an assertion that trial counsel is exceeding the scope of the direct examination. It was overruled, and correctly so, but I fail to see how that objection suggested to the law officer that defense counsel who had sought to have the Technical Manual introduced in evidence was objecting to its being used to test the conclusion of the expert.
That brings me to my next ground of dissent. If, as my brothers say, this publication was a sort of command control, the expert witness for the defense did not seem to so understand. Neither did the trial counsel, defense counsel, nor the law officer. If the doctor was brainwashed, I misread his testimony, for on redirect examination by defense counsel, the following question was asked of him and the recorded answer was given:
“Q. Do you feel particularly bound by this pamphlet, Psychiatry in Military Law, do psychiatrists particularly feel bound by it, in other words, is this a bible?
“A. No.”
Furthermore, he was not at all hesitant in supporting or taking issue with the principles enunciated, and there was not the slightest attempt to bind him to the concepts stated.
The expert for the Government was not asked whether he was influenced by the Technical Manual, but it is crystal clear he made his diagnosis from his personal interview and examination of the accused, together with all information furnished by the patient. Moreover, the statement that “trial counsel repeatedly adverted to the Technical Manual, its ‘official’ character, and the the purported failure of Dr. Astrachan to abide by its terms” is not supported by the record. Prior to argument, he mentioned the document once in his cross-examination of the defense expert, and that was for the purpose of identifying the source of the psychiatric principles he incorporated into the questions he propounded to the doctor. Also, in his examination of the psychiatrist who testified for the Government, he inquired whether that expert was familiar with the pamphlet. In his summation, when speaking of the different conclusions of the two doctors, he said this:
"... I submit the reason is because they were using different ref*547erence material, different manuals. Doctor Royal was using psychiatry and the law which embodies the policeman at the elbow test, -as the Law Officer is going to incorporate into his instructions, which the court is bound by.”
I must also part with my associates on their holding that the arguments of trial counsel require reversal. In United States v Sims, 5 USCMA 115, 17 CMR 115, the Chief Judge, speaking for a unanimous Court, stated:
“For his second claim of error, the accused argues that trial counsel’s remarks on the accused’s silence at the time of the search were improper and prejudicial. The Government calls attention to the accused’s failure to object to any of these comments, and urges application of the principle of waiver. Ordinarily, a failure to obj ect to improper comment by the prosecuting attorney would preclude raising the issue on appeal. Mitchell v United States, 208 F2d 854, (CA8th Cir 1954), cert den 847 US 1012, 98 L ed 1135, 74 S Ct 863; Langford v United States, 178 F2d 48, (CA9th Cir 1949), cert den 339 US 938, 94 L ed 1355, 70 S Ct 669. In a number of cases which were before us on mandatory review, we considered this claim of error, even though no objection had been made at the trial. United States v Ransom, 4 USCMA 195, 15 CMR 195; United States v Lee, 4 USCMA 571, 16 CMR 145. The nature of those eases made it appropriate to give appellate consideration to the allegation. But, we are not disposed to entertain such claims indiscriminately, when no effort has been made to curb the allegedly improper conduct, and to obtain a ruling from the law officer designed to eradicate the possibility of harm resulting from trial counsel’s imnroprieties. See United States v O’Briski, 2 USCMA 361, 8 CMR 161. However, since the accused strenuously argues that ‘trial counsel’s questionable success in eking out a conviction was attributable solely to his closing argument,’ we think the interests of justice will best be served if we consider the claim upon the merits.”
In the case at bar the entire argument made by trial counsel did not draw even a single objection from defense counsel. And parenthetically I might note that his conduct of accused’s defense was excellent, including his answering argument to trial counsel’s remarks. But more to the point, my previous discussion should indicate that trial counsel’s reference to the policeman at the elbow test was not improper and, while presenting his argument on that aspect of the case, he was careful enough to inform the court members that the law officer would instruct them on the law. Defense counsel in his argument reiterated what trial counsel had said about the law officer being the source from which they would gather the law and informed the members that neither they nor the witnesses were bound by the Technical Manual. Court members are presumed to follow the law as given by the law officer and he, as both counsel had suggested, gave them the proper formulae without reference to the Technical Manual or the policeman at the elbow test.
Moreover, I answer the argument that when trial counsel mentioned the book Anatomy of a Murder, he committed reversible error. He expressed very clearly that he was presenting his argument in the form of a similitude. He then went on to show why the facts of this case could be compared with the hypothetical situation found in the above-mentioned book. When it is considered that the accused did not consult a psychiatrist for some six months after the larceny; that his counsel sent him to Dr. Astrachan; that he was interviewed by the doctor on some six to nine occasions; that he bared his whole life to the doctor, including a contemplated suicide and his submission to a vasectomy; that the doctor found no evidence of insanity; thereafter, that the accused was sent to the Naval Hospital in Bethesda, Maryland, where he again related the important incidents of his life; that again his condition was diagnosed as not being a mental disease, defect, or derangement; that Dr. Astrachan first informed the trial counsel that accused was sane; that subsequent to all the foregoing the doctor *548changed his diagnosis shortly before trial because, according to him, for the first time the accused mentioned that he, accused, contemplated shooting off his penis; that the doctor “would like to see . . . [the accused] acquitted”; and that there is not a grain of evidence to support the mutilating idea, I believe trial counsel was drawing an inference which could be supported by the record. Obviously, he could not prove where the idea originated, but he had overwhelming evidence that the suggestion of self-mutilation came late in the day, was uncorroborated, and was an afterthought. Trial counsel did not state categorically that the defense was the figment of someone’s imagination, and he asserted that, “I’m not saying this happened in this case, but I’m saying that such things are possible.” It should go without saying that the experiences of lawyers and judges bear out the accuracy of his statement that such things are possible.
While trial counsel has a duty to strike only fair blows, he should not be muzzled to a point where he cannot be an advocate for the Government and draw inferences favorable to the prosecution. He need not extol the virtues of the defense, and he can argue the strongest showing for his side of the controversy. Because I believe the following to be a moderate statement on a prosecutor’s latitude in final arguments, I quote and subscribe to the concept expressed in Judge Learned Hand’s opinion in Di Carlo v United States, 6 F2d 364 (CA2d Cir) (1925):
. . While, of course, we recognize that the prosecution is by custom more rigidly limited than the defense, we must decline to assimilate its position to that of either judge or jury, or to confine a prosecuting attorney to an impartial statement of the evidence. He is an advocate, and it is entirely proper for him as earnestly as he can to persuade the jury of the truth of his side, of which he ought to be thoroughly convinced before he begins at all. To shear him of all oratorical emphasis, while leaving wide latitude to the defense, is to load the scales of justice; it is to deny what has always been an accepted incident of jury trials, except in those jurisdictions where any serious execution of the criminal law has yielded to a ghostly phantom of the innocent man falsely convicted.”
Finally, with respect to the last certified issue, I point out that accused was sentenced only to dismissal. No confinement, forfeitures, or other acees-sox-y punishments were included. Manifestly, then, under the case the majority cite there is no reasonable possibility that the instruction mentioned by my associates influenced the court-martial on the sentence imposed. United States v Smith, 10 USCMA 153, 27 CMR 227. Furthermore, there need be no fear that the instructional error will creep in upon a rehearing, for under the law the permissible punishment may not exceed the prior sentence to dismissal.
For the foregoing reasons I would affirm the decision of the board of review.