(concurring in the result):
I agree with the conclusion in the principal opinion that the other component evidence of Perdue’s commission of the offense attributed to him is so compelling of guilt as to foreclose any “reasonable possibility that the admission of . [Perdue’s written and oral pretrial statements] might have contributed to the appellant’s conviction.” I am constrained, however, to disassociate myself from the discussion of the admissibility of the statements.1 First, I believe that admissibility is constitutionally allowable under California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Secondly, I am not at all certain that paragraph 140a (6), Manual for Courts-Martial, United States, 1969 (Revised edition), is not a prescribed rule of evidence. The language of the provision as to inadmissibility of a confession or inculpatory admission by one other than the accused is framed as an absolute prohibition. In addition, I believe some comment on the dissent is appropriate. Judge Perry maintains that the written statement by Perdue “constituted the most damaging and devastating evidence concerning McConnico’s alleged act of driving Perdue away from the scene of the shooting.” The statement was not offered or received for that purpose. Trial counsel presented only that related to Perdue’s commission of the offense attributed to him. Nothing said about the accused was offered. The excerpt from the record of trial set out in footnote 7 of Judge Perry’s opinion compellingly demonstrates that the recitals as to the accused would be “disregarded” and not “considered” by the trial judge. I believe the trial judge could, and that he did, adhere to his declarations. See United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970). I am confirmed in that belief by the fact that the defense apparently perceived no risk that the judge would be unable to put aside the unadmitted matter since it did not move for a mistrial, United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.1978), or to withdraw the request for trial by judge alone. See United States v. Wright, 5 M.J. 106 (C.M.A.1978).
For the reason indicated, I join in affirming the decision of the United States Army Court of Military Review.
. The principal opinion describes the oral statement as a “spontaneous exclamation” and seems to imply that it was, therefore, admissible as an exception to the hearsay rule. See para. 142b, Manual for Courts-Martial, United States, 1969 (Revised edition). I do not believe it was admissible as such because the circumstances under which it was made indicate it was not “an impulsive and instinctive outcome of the event.”