(dissenting):
The accused was acquitted of the offense alleged as to Mrs. K. It is unimportant whether this was because the court-martial concluded she might have been mistaken in her assessment of the situation in that she was “sleepy, groggy and drowsy” as the result of medication administered to her, or because her testimony was not corroborated and, therefore, did not meet the standard for conviction in a sex case, as defined in the instructions of the law officer. What is important is, *187there were no similar deficiencies in the evidence as to the offense respecting Mrs. S. She positively identified the accused and his actions toward her; and she was fully corroborated by Mrs. K who, at this time, was indisputably in full possession of her faculties. In the face of the evidence, the findings of the court-martial, and the law officer’s instruction that no consideration could be given to the evidence as far as it related to the merits, I cannot see how the accused was prejudiced by the references to his “apology.” The inference that can drawn from the “apology” is not a confession. As Dean Wigmore has observed, “a confession ... is a direct assertion of the incriminating fact and does not include within its definition mere conduct used circumstantially.” Wigmore, Evidence, 3d ed, §279(2). Accordingly, the present case does not, in my opinion, come within the rule dealing with an inadmissible confession, which apparently is relied upon by the majority. See United States v Williams, 7 USCMA 434, 22 CMR 224.
The evidence of guilt is absolutely convincing. I would, therefore, affirm the decision of the board of review.