Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A general court-martial convened at Nouasseur Air Base, Morocco, convicted the accused of two specifications alleging lewd and lascivious acts upon persons under sixteen years of age, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. It. Imposed a sentence which includes a dishonorable discharge, confinement at hard labor for two and a half years. Intermediate appellate authorities affirmed and the accused brought the case to this Court by petition for grant of review. The question before us is whether sufficient cause was shown for the appointment of another law officer in the course of the trial.
On arraignment on October 16, 1958, the accused stood mute. A plea of not guilty was entered for him. Thereafter, civilian defense counsel moved for a finding of not guilty on the ground that the accused lacked mental capacity to be legally responsible for his actions. A civilian psychiatrist testified by stipulation that he examined the accused and was of the opinion the accused did not know the difference between right and wrong in regard to the offenses charged and that he acted under ■“the empire of an uncontrollable and unforeseeable pathological impulse.” Two military psychiatrists who examined the accused reached a different conclusion. Each said that, in his opinion, the accused had sufficient mental capacity to know right from wrong and was able to adhere to the right in regard to the offenses charged. Each military doctor was subjected to searching cross-examination by civilian defense counsel, and each made certain admissions concerning his examination and evaluation of the accused, which tended to lessen the weight of his testimony. In any event, at the end of the presentation of evidence on the sanity question, the law officer granted a defense motion for a finding of not guilty on the ground that the Government had not established beyond a reasonable doubt the accused's mental capacity to commit the acts alleged. After appropriate instructions on the issue, the president of the court-martial objected, and the court overruled the law officer and denied the motion.
Immediately after the court-martial’s ruling, the prosecution requested a continuance. In an out-of-court hearing on the request, it was determined that the Government’s witnesses were not available because the Government and the defense had proposed to introduce their testimony on the merits in other ways. However, the law officer rejected the proposals because the accused did not consent, on the ground that to do so would be inconsistent with his contention that he had insufficient mental capacity to understand the proceedings against him, and to cooperate in his defense, an issue which had been earlier resolved against him. Accordingly, the Government requested postponement for one week, to enable it to obtain the witnesses for direct examination. Individual defense counsel, who had indicated previous to the trial that he could not be present “in the event” trial was continued because he was leaving for the United States the next day and would not return until February 1959, withdrew from the case. Appointed military counsel indicated he had done nothing on the ease and he would “have to take some time to prepare”; he remarked [333]*333that he would be “more than happy” if the law officer were disposed to grant him more time. On reopening the court, the law officer granted a two-week continuance.
On October 22, trial counsel filed a request for a further continuance until November 13, 1958, to permit the prosecution to have the accused examined and psychiatrieally evaluated by another military psychiatrist. Appointed defense counsel objected to the request, but it was granted by the law officer on October 24.
No other formal request for grant of a continuance appears in the record of trial. The court reconvened on December 15, 1958. What transpired in the interim appears partly from a discussion at the opening of the proceedings on December 15 and partly from an out-of-court hearing on December 16.
On October 27, 1958, the accused was sent to Wiesbaden, Germany, for psychiatric evaluation. On November 6 his defense counsel was involved in an automobile accident. About a week later, trial counsel discussed the situation with the law officer, Major Rowe, and the Major said he would “simply note the matter . . . [at] the outset of the next session.” The accused was returned to the air base on November 30 and apparently his defense counsel had recovered from the effects of his accident. On December 10, trial and defense counsel engaged in the trial of another case. By special order dated December 4, 1958, Major Rowe was relieved as law officer of the court and Major I. Fisher was appointed in his stead.
Upon the introduction of Major Fisher as the new law officer, it was agreed to defer the question of challenge until he had an opportunity to read the transcript of the proceedings already had. The court was recessed for this purpose. When it reconvened on December 16, defense counsel challenged the validity of proceeding further with the trial, on the ground that there could be no substitution of the law officer under the circumstances of the case. In support of his objection he presented a statement from Major Rowe, former law officer. In pertinent part the document reads as follows:
“This was a complex and heated litigation, primarily concerned with the issues of mental competency to stand trial and insanity as a legal defense to the crimes alleged. The defense introduced evidence by way of a stipulation of testimony tending to show that the accused was incompetent and was legally insane. The prosecution called two psychiatrists to the stand to refute this evidence.
“The nature of their testimony together with the demeanor, bearing, and appearance, of these Government witnesses on the stand during both direct and cross-examination was a substantial factor in my ruling' sustaining the defense motion for a finding of not guilty based upon insanity at the time of the alleged offense. The printed record does not, of course, reflect all these factors.
“I have made this statement at the request of First Lieutenant Bruce Morgan, counsel for the accused. Because of orders directing my transfer to the United States, I am no longer available to serve as Law Officer of this court-martial and understand that I have been relieved of such duty.” Signed, ' “Cecil F. Rowe, Major, USAF, Judge Advocate, Date: 11 December 1958.”
Although defense counsel indicated he did not intend his challenge to the proceedings to be a challenge to the law officer, the latter submitted the question to the court-martial on that basis. He observed that the defense objection was not a challenge to him personally but to “any certified law officer in the United States Air Force except the law officer who originally sat.” However, because the Manual for Courts-Martial, United States, 1951, provides for substitution of the law officers “for good cause,” he concluded that inquiry could not “go behind” the decision of the convening authority to make the substitution. The question he submitted to the court-martial was this: “Not having been present when testimony on the merits was heard, or other important proceedings were had in this case, will my sit[334]
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A general court-martial convened at Nouasseur Air Base, Morocco, convicted the accused of two specifications alleging lewd and lascivious acts upon persons under sixteen years of age, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. It. Imposed a sentence which includes a dishonorable discharge, confinement at hard labor for two and a half years. Intermediate appellate authorities affirmed and the accused brought the case to this Court by petition for grant of review. The question before us is whether sufficient cause was shown for the appointment of another law officer in the course of the trial.
On arraignment on October 16, 1958, the accused stood mute. A plea of not guilty was entered for him. Thereafter, civilian defense counsel moved for a finding of not guilty on the ground that the accused lacked mental capacity to be legally responsible for his actions. A civilian psychiatrist testified by stipulation that he examined the accused and was of the opinion the accused did not know the difference between right and wrong in regard to the offenses charged and that he acted under ■“the empire of an uncontrollable and unforeseeable pathological impulse.” Two military psychiatrists who examined the accused reached a different conclusion. Each said that, in his opinion, the accused had sufficient mental capacity to know right from wrong and was able to adhere to the right in regard to the offenses charged. Each military doctor was subjected to searching cross-examination by civilian defense counsel, and each made certain admissions concerning his examination and evaluation of the accused, which tended to lessen the weight of his testimony. In any event, at the end of the presentation of evidence on the sanity question, the law officer granted a defense motion for a finding of not guilty on the ground that the Government had not established beyond a reasonable doubt the accused's mental capacity to commit the acts alleged. After appropriate instructions on the issue, the president of the court-martial objected, and the court overruled the law officer and denied the motion.
Immediately after the court-martial’s ruling, the prosecution requested a continuance. In an out-of-court hearing on the request, it was determined that the Government’s witnesses were not available because the Government and the defense had proposed to introduce their testimony on the merits in other ways. However, the law officer rejected the proposals because the accused did not consent, on the ground that to do so would be inconsistent with his contention that he had insufficient mental capacity to understand the proceedings against him, and to cooperate in his defense, an issue which had been earlier resolved against him. Accordingly, the Government requested postponement for one week, to enable it to obtain the witnesses for direct examination. Individual defense counsel, who had indicated previous to the trial that he could not be present “in the event” trial was continued because he was leaving for the United States the next day and would not return until February 1959, withdrew from the case. Appointed military counsel indicated he had done nothing on the ease and he would “have to take some time to prepare”; he remarked [333]*333that he would be “more than happy” if the law officer were disposed to grant him more time. On reopening the court, the law officer granted a two-week continuance.
On October 22, trial counsel filed a request for a further continuance until November 13, 1958, to permit the prosecution to have the accused examined and psychiatrieally evaluated by another military psychiatrist. Appointed defense counsel objected to the request, but it was granted by the law officer on October 24.
No other formal request for grant of a continuance appears in the record of trial. The court reconvened on December 15, 1958. What transpired in the interim appears partly from a discussion at the opening of the proceedings on December 15 and partly from an out-of-court hearing on December 16.
On October 27, 1958, the accused was sent to Wiesbaden, Germany, for psychiatric evaluation. On November 6 his defense counsel was involved in an automobile accident. About a week later, trial counsel discussed the situation with the law officer, Major Rowe, and the Major said he would “simply note the matter . . . [at] the outset of the next session.” The accused was returned to the air base on November 30 and apparently his defense counsel had recovered from the effects of his accident. On December 10, trial and defense counsel engaged in the trial of another case. By special order dated December 4, 1958, Major Rowe was relieved as law officer of the court and Major I. Fisher was appointed in his stead.
Upon the introduction of Major Fisher as the new law officer, it was agreed to defer the question of challenge until he had an opportunity to read the transcript of the proceedings already had. The court was recessed for this purpose. When it reconvened on December 16, defense counsel challenged the validity of proceeding further with the trial, on the ground that there could be no substitution of the law officer under the circumstances of the case. In support of his objection he presented a statement from Major Rowe, former law officer. In pertinent part the document reads as follows:
“This was a complex and heated litigation, primarily concerned with the issues of mental competency to stand trial and insanity as a legal defense to the crimes alleged. The defense introduced evidence by way of a stipulation of testimony tending to show that the accused was incompetent and was legally insane. The prosecution called two psychiatrists to the stand to refute this evidence.
“The nature of their testimony together with the demeanor, bearing, and appearance, of these Government witnesses on the stand during both direct and cross-examination was a substantial factor in my ruling' sustaining the defense motion for a finding of not guilty based upon insanity at the time of the alleged offense. The printed record does not, of course, reflect all these factors.
“I have made this statement at the request of First Lieutenant Bruce Morgan, counsel for the accused. Because of orders directing my transfer to the United States, I am no longer available to serve as Law Officer of this court-martial and understand that I have been relieved of such duty.” Signed, ' “Cecil F. Rowe, Major, USAF, Judge Advocate, Date: 11 December 1958.”
Although defense counsel indicated he did not intend his challenge to the proceedings to be a challenge to the law officer, the latter submitted the question to the court-martial on that basis. He observed that the defense objection was not a challenge to him personally but to “any certified law officer in the United States Air Force except the law officer who originally sat.” However, because the Manual for Courts-Martial, United States, 1951, provides for substitution of the law officers “for good cause,” he concluded that inquiry could not “go behind” the decision of the convening authority to make the substitution. The question he submitted to the court-martial was this: “Not having been present when testimony on the merits was heard, or other important proceedings were had in this case, will my sit[334]*334ting as law officer involve an appreciable risk of injury to the substantial rights of the accused, which risk will not be avoided by a reading of the record— such a reading having already been accomplished?” The court voted against the challenge as it was presented to them.
No provision of the Uniform Code refers specifically to the absence or excuse of the law officer of a court-martial after a case is in progress. Article 29, Uniform Code of Military Justice, 10 USC § 829, provides for excusal of court members. It is entitled “Absent and additional members” and provides in part as follows :
“(a) No member of a general or special court-martial shall be absent or excused after the accused has been arraigned except for physical disability or as a result of a challenge or by order of the convening authority for good cause.”
Appellate defense counsel contend the quoted provision does not apply to the law officer. On the other hand, from its contention that good cause existed for the substitution of Major Fisher for Major Rowe, the Government maintains that Article 29 extends to the law officer. The legislative background clearly supports appellate defense counsel’s viewpoint.
Testifying before the Subcommittee of the House Committee on Armed Services in regard to the draft bill providing for the Uniform Code, John P. Oliver, representative of the Reserve Officers Association, said Article 29 should provide that the “law member” should not be excused, and no proceedings should be had in his absence. Hearings before the House Committee on Armed Services on H. R. 2498, 81st Congress, 1st Session, page 755. Later Mr. Oliver’s testimony came up for consideration. Mr. Felix Larkin, Assistant General Counsel of the Department of Defense, who played an important part in drafting the bill presented by Secretary For-restal’s Committee, said that Mr. Oliver’s objection was not “well taken' because this Article [29] concerns members of the court — not law members. We provide in another section that the trial may not proceed in the absence of a law member, now called law officer, under any circumstances.” Hearings, ibid, page 1160. The intent to exclude the law officer from Article 29 is further evidenced by the commentary, on the sessions of a court-martial (Article 39), in the report of the Committee on Armed Services to the House of Representatives. The comments are as follows:
“. . . The requirement of AW 8 that no evidence be received in the absence of the law officer is extended in that the law officer must be present at all times except when the members are to vote or deliberate. The law officer is not a ‘member’ of the court and is not to be present during deliberations or voting.” [House Report No. 491, 81st Congress, 1st Session, page 21.]
The Manual for Courts-Martial, United States, 1951, paragraph 37, discusses action by the convening authority to effect changes in the personnel of a particular court-martial. In part it reads as follows:
“a. General. — Subject to the exceptions stated below (37b), it is within the discretion of the convening authority to make changes in the composition of courts-martial appointed by him. For instance, he may appoint new members to a court in lieu of, or in addition to, the members of the original court; or he may appoint a new law officer, trial counsel, or defense counsel in lieu of the personnel designated to perform those respective duties by the original appointing order. When practicable, the convening authority should change the composition of courts-martial from time to time to provide the maximum opportunity to eligible personnel to gain experience in the administration of military justice.
“b. Exceptions. — No member of a general or special court-martial shall be absent or excused after the accused has been arraigned except for physical disability or as a result of a challenge or by order of the convening authority for good cause (Art. 29a). [335]*335Military exigencies or emergency leave, among others, may constitute good cause for such a relief. The determination of facts which constitute good cause for the excuse from attendance or the relief of a member after arraignment rests within the discretion of the convening authority.”
The quoted passage may be read as indicating that the law officer and counsel do not fall within the exception relating to court members. Consequently, under the general rule, the convening authority .may “in his discretion” make changes, and such changes may be made without regard to whether they occur before or after arraignment. So construed, substitution of the law officer, at any stage of the proceedings, would be without restriction of any kind. That result would be wholly inconsonant with the procedure in the Federal courts, without any apparent necessity therefor. Cf. Article 36, Uniform Code of Military Justice, 10 USC § 836.
Rule 25 of the Federal Rules of Criminal Procedure provides that, in the Federal criminal courts, a substitute judge may act for a judge who is absent from the district, has died, is sick or suffering from some other disability in regard to “duties to be performed . . . after a verdict or finding of guilty.” (Emphasis supplied.) The rule does not authorize substitution of a judge after arraignment and before verdict. Whitman, Federal Criminal Procedure, 1950 ed., page 185; see also Freeman v United States, 227 Fed 732, 759 (CA2d Cir) (1915); Rule 63, Federal Rules of Civil Procedure; Federal Deposit Ins. Corporation v Siraco, 174 F2d 360 (CA2d Cir) (1949). Since this Court has frequently said the law officer “perform [s] in the image of a civilian judge,” and that Federal practice applies to court-martial procedures if not incompatible with law or the special requirements of the military establishment, appellate defense counsel contend there can be no substitution of the law officer during the stage of the proceedings in issue. United States v Keith, 1 USCMA 493, 4 CMR 85; United States v Knudson, 4 USCMA 587, 16 CMR 161; United States v Stringer, 5 USCMA 122, 17 CMR 122.
For the purposes of this case, we need not go as far as appellate defense counsel would have us go. Suffice it to note that, in setting out the general rule, one leading encyclopedia of law indicates that “extraordinary circumstances” may make it “imperative” to substitute judges in the course of a trial. 53 Am Jur, Trial, §20; see also Wharton’s Criminal Law and Procedure, 12th ed, § 1464.1 The Manual apparently adopts this rule. It provides that the “law officer should not be changed during the progress of a trial except for a good reason”; and if substitution is made, the trial may proceed “after the substance of all proceedings have been made known to him and the recorded testimony of each witness previously examined has been read to him in the presence of the court, the accused, and counsel.” Paragraph 39 e, page 56.
Appropriately, we may consider excuse of a law officer from the same standpoint as excuse of a court member. Under the Manual, each may be substituted for “good cause.” Also, the relationship between the two is in effect suggested by Freeman v United States, supra, one of the eases most strongly relied upon by appellate defense counsel. The court there said that the judge and jury “must remain identical from the beginning to the end” of the trial. Statutory authorization to excuse the one tends to support the view that the excuse of the other, for identical reasons, might not violate the requirements of a fair trial.
[336]*336[335]*335We have already quoted Article 29 authorizing the convening authority to excuse court members after arraignment for good cause. Neither the Code nor the Manual attempts to define good cause. The latter, however, gives some [336]*336informative examples. It says: “Military exigencies or emergency leave, among others, may constitute good cause for such a relief. The determination of facts which constitute good cause for the excuse from attendance or the relief of a member after arraignment rests within the discretion of the convening authority.” Paragraph 37b. We have pointed out that the convening authority’s discretion is subject to review on appeal. United States v Whitley, 5 USCMA 786, 19 CMR 82; United States v Grow, 3 USCMA 77, 11 CMR 77; see also House Hearings, op. cit., page 1081. Also, we laid down a general guide for .such appellate review. In the Grow case we said:
“Because the substitution of court members after arraignment is such a departure from the principles applicable to jury trials, and presents such a risk of abuse, we will view with circumspection any relief of a member after arraignment. Records of trial should set forth in detail the basis of the absence or relief of any member and affirmatively establish that such absence or relief falls within the provisions of the Code.”
With these general principles in mind we turn to the facts in this case. The Government did not set out the basis for Major Rowe’s relief. However, the statement submitted by defense counsel, which was admitted into evidence, gives us some indication of the background. The document is dated December 11, 1958, a week after the issuance of an order excusing Rowe and appointing Major Fisher in his place as law officer. There is no indication whatever why Rowe was directed to return to the United States, nor is there any clear indication whether he was outside the command when the court reconvened. Be that as it may, good cause contemplates some sort of critical situation as distinguished from the usual and ordinary. The word “exigency” imports urgency, necessity, or crisis. Webster’s New International Dictionary, 2d ed, page 893. Normal conditions of military life do not provide the emergency or exigency constituting good cause for relief from court-martial duty while the trial is in progress. United States v Boshears, 23 CMR 737. We hold, therefore, that the record of trial does not sufficiently show good cause for substitution of the law officer. It was, therefore, error to proceed with a new law officer, over defense counsel’s objection.
The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing is directed.
Judge FERGUSON concurs.