(dissenting):
Had I been a member of the court-martial I might not have voted to convict the accused of unpremeditated murder because of a very definite doubt that he intended to kill Airman Cheers with whom he was on quite friendly terms. It is, therefore, with reluctance that I disagree with reversal of his conviction for the reasons advanced by the board of review and my brothers. I disagree for two reasons.
First, in my opinion the accused judicially reiterated the matters related in his pretrial statement to Sergeant Holt. United States v Trojanowski, 5 USCMA 305, 11 CMR 305. The accused testified that it was the first night the two were to work on guard duty together. At various times before they reported for guard duty they engaged in “horseplay.” On several separate occasions the accused told Cheers he “was going to shoot him.”1 At 12:30 o’clock on the morning of May 26, 1960, they were posted together. The accused’s account of what transpired is as follows:
“A. I started walking toward my post and Airman Cheers joined me. He was on my left-hand side and I was on his right. We walked together to the middle of the gate shack and didn’t say anything. I walked toward the door and then I pulled my weapon out. In the truck I pulled my weapon out to release the magazine and put it in my pocket. When we got to the post, I inserted my magazine. I looked at Cheers and he had a grin on his face and he thought I was going to kid around. I didn’t have any intention of doing anything.
“Q. Where were you at this time?
“A. Inside the building.
“Q. What did you do after the orange flash?
“A. I didn’t do anything. I was scared. I had two stripes and my first thought was that I was going to get busted for firing.my weapon.
“Q. What was your, thought?
“A. I was going.to get busted.
*631“Q. What did you then do?
“A. I believe I put my weapon inside my holster and did an about-face and walked outside the gate house. As I was getting ready to do that, after I had done the about-face, I remembered that on the semiautomatic, after the cartridge is ejected, another one is put into the chamber. I took out my weapon and cleared it, ejected the large shell, put it in the magazine, and put the ammo in my pocket. The weapon was cleared and I put my weapon in the holster. I emptied the magazine again, put it in my pocket, and walked out.
“Q. What happened next?
“A. After I walked outside, I just walked around the building. Actually the end of the building was not very far. There was a trash can about twenty yards away. I looked there and saw Airman Cheers.
“Q. What was your first thought at that time?
“A. I thought he was joking or kidding around.
“Q. What did you do as a result?
“A. I went up to him and, as I did, he grabbed me around the legs, and I knew he was kidding. Then I started to go into a headlock and I felt the blood. I just dropped him and ran for the phone. There is a direct line to CSC. You just had to pick the phone up and it would connect you with CSC, but I just dialed 215. That was all I remembered.
“Q. What did you tell them?
“A. I believe Airman Francis was blotter and answered the telephone. I told him, ‘This is Gorko. I just shot Cheers.’
“Q. Was this immediately after you had learned that Cheers had been hit?
“A. I don’t think I could have run any faster to the phone than I did.
“Q. And you left him there as you felt this and ran to the phone?
“A. I just dropped him and ran to the phone.
“Q. And then you said, T shot Cheers. Send an ambulance.’ What did you next do ?
“A. Well, sir, they didn’t believe me. I told them three or four times and then I swore, and I don’t know whether he believed me or not. But I slammed down the phone and went back to Cheers and I said he could not die from the wound which was in the shoulder. While I was there, two cars passed the gate, leaving the flight line. I believe they were officers, as they saluted. I stood away from Cheers and waved them on. If I had known them, maybe I would have gotten help, but I was scared. I just waved them with my left hand and ran back to Cheers. I believe I called again. I believe it was Sergeant Holt again, and finally Sergeant Holt came.”
The substance of every component of the pretrial statement is patently present in these extracts from the accused’s testimony. There is the specific admission that he pulled out his weapon and shot Cheers; there is the specific denial of knowledge of what happened between the time Cheers grinned and ran away and “the orange flash” of the shot; and, finally, there is the very direct implication from the testimony that Cheers “thought” the accused “was going to kid around”; that the accused told him, as he had several times during the day, that he would kill him.
Secondly, in my opinion, Article 31, Uniform Code of Military Justice, 10 USC §831, is not applicable to the challenged pretrial statement. In United States v Vail, 11 USCMA 134, 28 CMR 358, after reviewing many of the cases in this area we said: “Article 31 . . . cannot be applied without regard to the circumstances under which the statement is made.” In principle, the circumstances under which the present statement was made are substantially similar to those before us in United States v Haskins, 11 USCMA 365, 29 CMR 181. There, the accused was relieved of his stewardship of certain funds. In the course of the audit of the funds, he was asked about cer*632tain records. We held that his response was admissible in evidence because the inquiry was not one which, under Article 31, supra, required preliminary advice oí the right to make no statement. Here, as in Haskins, the accused had an official duty to perform. He filed a specific report in the discharge of that duty; as a result of the report, his regular supervisor asked him about the details and he made an appropriate response. In my opinion, the situation was not an investigation of the kind contemplated by Congress as included within the purview of Article 31. Cf. United States v Wilson, 2 USCMA 248, 8 CMR 48.
I would answer the certified question in the negative, and I would return the record of trial to the board of review for consideration of the merits of other matters raised by the record of trial.
Prosecution witnesses who were present on these occasions testified they considered the exchanges between the two to be humorous and joking.