basis, the law officer rules first subject to an objection by a court member. If there is no objection, his ruling should dispose of the preliminary question, and trial should proceed, if his ruling is adverse to the accused. If an objection is noted, the court should be instructed properly on the narrow issue then involved and care should be exercised not to confuse the finding then to be made with the later finding on the merits. Ordinarily, the test for insanity, the burden of proof, reasonable doubt, and similar items will be the same in both instances, but the percentage of votes will vary. Ordinarily, a matter should not be twice submitted if once will do. However, the law officer has the necessary discretion to determine the method to be followed and if presenting the evidence on the substantive offense will consume a considerable period of time, while the introduction of testimony on insanity will take a much lesser period, then time and effort might be conserved by a preliminary ruling. Regardless of the methods selected, the important matter is that an interlocutory ruling by the court, if objected to, requires instructions fitted to that issue, while different instructions are demanded when the cause is submitted on its merits. United States v. Williams (No. 4624), 5 USCMA 197, 17 CMR 197, affirming CM 368282, Williams, 14 CMR 242.

A motion to dismiss is not the proper motion to raise the question of the accused's lack of mental capacity at the time of trial. The proper motions should be for a continuance or stay of proceedings. Paragraph 67d, MCM, 1951, mentions a motion to dismiss the proceeding during the trial on the grounds of lack of mental capacity at the time of trial but that refers to a discontinuance of the hearing and not to a dismissal of the action. (Citing U. S. v. Lopez-Malave (No. 4202), 4 USCMA 341, 15 CMR 341.) United States v. Williams (No. 4624), 5 USCMA 197, 17 CMR 197, affirming CM 368282, Williams, 14 CMR 242.

Instructions to court on insanity, see TRIAL § 57.9.

At the trial of the accused there was psychiatric testimony to the effect that the accused knew the difference between right and wrong but that his ability to adhere to the right was "impaired". When the defense moved for a finding of not guilty on the ground of insanity the law officer read from the publication Psychiatry in Military Law, certain remarks to the effect that impairment of ability to adhere to the right was not a ground for finding the accused not guilty. He then stated that he found no evidence that the accused was unable to adhere to the right and therefore he refused to entertain the defense motion and would not submit the issue to the court. Held: The law officer was correct in denying the defense motion since impairment of the ability to adhere to the right does not equate to a disability which would establish an irresistible impulse and thus the evidence did not disclose insanity at the time of the commission of the offenses. However, the court should have been given an opportunity to vote to sustain or overrule the law officer. However, the error was not prejudicial because the entire issue was subsequently submitted to the court for its determination and because the impair

ment of ability to adhere to the right was considered at the sentencing stage. NCM 376, Watson (1954) 18 CMR 391.

§ 35. Evidence

Sufficiency of evidence to raise issue of sanity so as to require instructions, see TRIAL § 57.9.

§ 35.1. Generally.

Mental impairment as affecting ability to premeditate so as to be liable to homicide charge, see HOMIC § 51.11.

§ 35.3. Admissibility, competency, and relevancy.

Both in the direct examination of the prosecution's expert witnesses and in the cross-examination of expert witnesses for the defense, the prosecution used TM 8-240, "Psychiatry in Military Law." Held: The court-martial could properly take judicial notice of this Technical Manual. The standards of competence and accuracy reflected in technical publications of the armed services are sufficiently high to cause doubt that an accused would suffer from having their contents noted by the members of a court-martial.

Held also: The Technical Manual can also be used for purposes of cross-examination, particularly in view of the fact that the portions read to the court during the course of the direct and cross-examinations enunciated an entirely correct interpretation of the law applicable to the case. Furthermore, the doubt voiced on one occasion by the defense counsel concerning the use of this Manual scarcely involved an "objection" in any proper sense of the term, and, in the light of the entire record, does not present an issue on appeal. (Cf. U. S. v. Johnson, 318 US 189, 87 L ed 704, 63 S Ct 549.) At that time, too, the law officer made it clear that the witness was not to be limited by the phraseology of the Technical Manual in the presentation of his medical testimony. [Quinn, C.J., dissented on the ground that the expert witnesses had considered themselves bound by the Manual's terms, to the exclusion of their individual professional beliefs.] United States v. Smith (No. 3370) 5 USCMA 314, 17 CMR 314, affirming CM 360857, 10 CMR 350. To the same effect with respect to judicial notice of TM 8-240, is United States v. Kunak (No. 3787), 5 USCMA 346, 17 CMR 346.

In his examination of government witnesses, trial counsel brought out that the report of the sanity board had been unanimous and later adverted to that circumstance in argument. A member of the medical board submitted a post-trial affidavit in which he said that he signed the report because he believed that the conclusions set down therein met the requirements contained in TM 8-240, "Psychiatry in Military Law," and that if the same questions relating to the accused's mental responsibility had been propounded to him in civilian practice, where he "was not subject to the limitations imposed by the cited Technical Manual," he would not have concurred fully in the conclusions reached by the board, particularly in regard to the accused's ability to adhere to the right. Held: Since this officer and every other member of the sanity board had signed the report

indicating that the accused was sane, there was no prejudicial misrepresentation involved in the trial counsel's adducing testimony to the effect that the report had been unanimous, and thereafter in commenting on that circumstance in argument. By interposing an objection on hearsay grounds to testimony that the report of the sanity board was unanimous, the defense could have compelled the government to call this officer if the prosecution's personnel wished to place the circumstance of unanimity before the court. Not having utilized this ground for valid objection, the defense has no cause for complaint. [Quinn, C. J., dissented on the ground that the medical experts had considered themselves bound by the Manual's terms, to the exclusion of their individual professional beliefs.] United States v. Smith (No. 3370) 5 USCMA 314, 17 CMR 314, affirming CM 360857, 10 CMR 350.

§ 35.5. Evidence not introduced during trial.

Post-trial findings of boards of medical officers as raising reasonable doubt as to mental responsibility of accused at time of alleged offenses, see ACM 9112, Voigt, infra § 35.9.

§ 35.7. Test for determining mental responsibility, generally. TM 8-240, 20 September 1950, entitled "Psychiatry in Military Law," was not promulgated as new rules of military law, but was intended only to interpret existing rules for the benefit of service psychiatrists. Furthermore, it is entitled to some weight as an official interpretation of the standards set out in the Manual for Courts-Martial. However, the Technical Manual is in no way binding on this Court, nor intended to be controlling on either a courtmartial or an expert witness. United States v. Smith (No. 3370) 5 USCMA 314, 17 CMR 314, affirming CM 360857, 10 CMR 350.

At his trial for premeditated murder the accused testified as to acting under an irresistible impulse. A medical officer testified that he did not believe the accused was acting under such an impulse. In the course of his testimony the officer mentioned the three requirements for an irresistible impulse which TM 8-240, AFM 160-42, September 1950, states must be met before a medical officer can testify that an accused was acting under such an impulse. Held: The officer's conclusion that the accused was not acting under an uncontrollable impulse was not illegally dictated by a disciplined adherence to the Technical Manual. The provisions of the TM set forth a definition of the doctrine of irresistible impulse which is in accord with the general rule prevailing in those jurisdictions which recognize the doctrine and there is no showing that the three requirements are not appropriate elements to substantiate a conclusion as to irresistible impulse. The officer did not indicate in any way that his judgment was controlled by the text and his testimony indicated that his conclusions were arrived at by an independent evaluation of factors taken from independent sources. United States v. Kunak (No. 3787), 5 USCMA 346, 17 CMR 346, reversing on other grounds CM 355051, Kunak, 10 CMR 198.

The long established military test of mental responsibility is phrased in terms of whether the accused was, at the time of the alleged offense, so far free from mental defect, disease, or derangement as to be able, concerning the particular acts charged, to distinguish right from wrong and to adhere to the right. (Citing MCM, 1951, par 120b; MCM, 1949, par 110b; MCM, U. S. Army, 1928, par 78a; Winthrop's Military Law and Precedents, 2d ed, 1920 reprint, pp 294296.) Emphasis is placed on the distinction between the "mental defect, disease, and derangement," which may exculpate from criminal liability, and the "mere defect of character, will power, or behavior," which will not serve to exonerate an accused. The more liberal test of determining mental responsibility as recently announced in Durham v. U. S., 214 F2d 862, that unless the jury "believe beyond a reasonable doubt either that he [the accused] was not suffering from a diseased or defective mental condition, or that the act was not the product of such abnormality, you must find the accused not guilty by reason of insanity," and that disease is "a condition which is considered capable of either improving or deteriorating," while a defect exists when there is present a condition "not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease," is not acceptable in the field of military law at this time. In view of the facts that there is some uncertainty as to the criterion set down in the above test, that the services of psychiatrists may not be readily available in many areas in which courts-martial must function, and that the premium on a resort to insanity as a defense is higher in the military establishment than in any other system of law, and other considerations, this Court is unwilling to accept a more liberal view until further and broader experience is acquired. United States v. Smith (No. 3370) 5 USCMA 314, 17 CMR 314, affirming CM 360857, 10 CMR 350; United States v. Kunak (No. 3787) 5 USCMA 346, 17 CMR 346, reversing on other grounds CM 355051, 10 CMR 198.

In 1953 TM 8-240 was changed so as to delete the reference to the "policeman" test for irresistible impulse and the following was substituted: "If the medical officer is satisfied that the accused would not have committed the act had the circumstances been such that immediate detection and apprehension was certain, he will not testify that the act occurred as the result of an 'irresistible impulse'. No impulse that can be resisted in the presence of a high risk of detection or apprehension is really very irresistible." Held: The change in the Technical Manual is not a concession that the "policeman" test was legally incorrect since there is no substantial difference between the concept of a "policeman at the elbow" and that of the "presence of a high risk of detection or apprehension". Both tests are based upon the theory that if fear from immediate detection and certain apprehension is sufficient to deter an accused from committing the crime he has the mental capacity to adhere to the right. United States v. Kunak (No. 3787) 5 USCMA 346, 17 CMR 346, reversing on other grounds CM 355051, Kunak, 10 CMR 198.

The "policeman at the elbow" test of the 1950 edition of TM 8-240, that is, that there is no irresistible impulse unless the offense would have been committed had a policeman been present at the time, and the test for irresistible impulse stated in the 1953 edition of TM 8-240, that is, whether "the compulsion generating the illness was so strong that the act would have been committed even though the circumstances were such that the accused could expect to be detected and apprehended forthwith when the offense was committed," possess an identical core of meaning having to do with whether the prospect of penal sanctions would have deterred the accused from the conduct in question. However, inasmuch as the "policeman" test literally applied, may be misleading, the wording of the 1953 edition of TM 8-240 should be utilized as a guide for instructions and the like. United States v. Smith (No. 3370) 5 USCMA 314, 17 CMR 314, affirming CM 360857, 10 CMR 350.

Since Congress has expressly entrusted the determination and administration of commitment procedures with respect to members of the armed forces to the executive branch, Congress may also have acquiesced in the formulation by the President of standards for determining sanity in trials by court-martial. However, the Secre

taries of the Army and the Air Force may not alter the criteria of insanity set down by the President in the Manual for Courts-Martial and are without power to promulgate new rules for the determination of mental responsibility. In view of the exercise of the President's authority in this area, and the overriding purpose of uniformity among the armed services, the Secretaries do not enjoy rule-making power in this sphere. United States v. Smith (No. 3370) 5 USCMA 314, 17 CMR 314, affirming CM 360857, 10 CMR 350.

In determining whether an accused ought to be considered mentally responsible for the commission of offenses, the answers to the following questions are controlling: (1) Did the accused have a mental defect, disease or derangement? (2) If he did have a mental defect, disease or derangement, did it render him unable to know that the particular act charged was wrong? (3) If he did have a mental defect, disease, or derangement (a) did it deprive him completely of the power of choice or volition so that he was unable, concerning the particular act charged, to adhere to the right; or (b) did the defect, disease, or derangement, although not rendering him completely incapable of adhering to the right with respect to the act charged, tend to impair or diminish his ability to do so? NCM 376, Watson (1954) 18 CMR 391.

§ 35.9. Weight, effect and sufficiency.

The accused was convicted of premeditated murder. The evidence showed that the victim had been a witness against the accused before a board of officers inquiring into the accused's fitness to retain his grade. Shortly thereafter, the victim left the permanent area on maneuvers. While he was gone, the accused was reduced in grade in accordance with the recommendation of the board. The day the victim returned from maneuvers, the accused saw him enter a mess