Opinion of the Court
Robert E. Quinn, Chief Judge:
In the early morning hours of November 8, 1955, at Nouasseur Air Depot, French Morocco, North Africa, the nine-year-old daughter of an Air Force officer was abducted from the trailer in which she and her parents lived. She was carried by the accused to a nearby area. There the accused performed indecent liberties upon the child’s person and attempted to have sexual intercourse with her. During these acts, the victim continually screamed. She was then choked into unconsciousness. Upon hearing voices in the vicinity, the accused fled the scene. However, he was quickly apprehended by the Air Police.
As a result of his brutal conduct, the accused was charged with attempted rape and attempted sodomy, both in contravention of Article 80, Uniform Code of Military Justice, 10 USC § 880, and burglary, in violation of Article 129, Uniform Code of Military Justice, 10 USC § 929. He was found guilty and sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for twenty-eight years. The convening authority approved the conviction, but it was later set aside by a board of review because of the failure of the law officer to grant a continuance to the accused. The Judge Advocate General of the Air Force certified the following issue for our consideration:
“Was the Board of Review correct, under the circumstances of this case, in its determination that the accused was materially prejudiced by the denial of the continuance requested by the defense counsel?”
As already noted, the accused was apprehended on November 8, 1955, the date the offenses were committed. On December 3, 1955, charges were preferred. The Article 32 investigation was begun two days later. The accused requested Captain Saltzman to represent him and that officer was made available on December 8, 1955, and actually served as his defense counsel during the investigation. On December 9 the accused was admitted to the Base Hospital for psychiatric evaluation. Because of the nature of the case and the seriousness of the charges, it was recommended that the accused appear before a board of psychiatrists. On December 22, 1955, he was flown to the United States Air Force Hospital at Wiesbaden, Germany, for further examination. A board of officers was convened, and it was determined that the accused was sane.
[139]*139The accused was returned to Nouas-seur in mid-January 1956. In the meantime, Captain Saltzman had completed his overseas assignment and had returned to the United States. For a time, the accused refused to consult with his newly appointed defense counsel, Lieutenant Hayes, or to cooperate in his defense. When he finally agreed to cooperate, the Article 32 investigation was completed. This occurred on January 20, 1956. The charges were referred for trial on February 1, 1956, and the accused was served with a copy of the charges on February 4, 1956.
Shortly after the service of the charges, defense counsel went to Germany for the express purpose of interviewing the psychiatrists who had examined the accused and Office of Special Investigations agents who had obtained certain statements from him while he was in the hospital. On February 29, 1956, defense counsel requested the convening authority to delay the trial until April 17, 1956. He based his request on the following grounds:
“My interrogation of the military psychiatrists involved, leads me to believe that I would fail in my duty to the accused, considering his obvious maladjustment, if I did not attempt to obtain testimony from other psychiatric experts of a different school of diagnosis. I have leads to experts in the Zone of Interior with whom I desire to communicate to this end, with a view to obtaining a deposition. To accomplish this needed preparation 1 cannot be ready to go to trial on 5 March as previously contemplated.”
Trial counsel concurred in the request for delay because he saw “no reason why the delay would seriously interfere with or hamper the case.” By endorsement dated March 8, 1956, the convening authority denied the request, and directed trial counsel “to proceed forthwith in the trial of the accused.”
The case came on to be heard on March 27, 1956. Defense counsel renewed his motion for a continuance. The law officer also denied it, and the trial proceeded. The mental responsibility of the accused was not brought in issue. On reviewing the case, an Air Force board of review concluded that the ruling was an abuse of the law officer’s discretion.
Before this Court, the Government contends that the board of review erred in its conclusion because defense counsel did not show “reasonable cause” for a continuance. Article 40, Uniform Code of Military Justice, 10 USC § 840, provides that a court-martial may for “reasonable cause” grant a continuance to either party. United States v Knudson, 4 USCMA 587,16 CMR 161. Paragraph 58c, Manual for Courts-Martial United States, 1951, provides that among the grounds that may be considered reasonable is “insufficient time to prepare for trial.” It is, therefore, important to inquire into the specific basis of defense counsel’s claim of unpreparedness.
Defense counsel entered the case “approximately the week between Christmas and New Year’s, 1955.” The record shows several applications for delay of the pretrial investigation and postponement of the trial. The details are unimportant. But the reasons for the applications are significant. These were two in number. The first was the need to inquire into the accused’s sanity; and the second was to interview the Office of Special Investigations agents in Wiesbaden, Germany, who had obtained pretrial statements from the accused during his hospitalization -in that city and to evaluate their testimony from the defense standpoint.
As early as February 3, 1956, defense counsel indicated that he would need about a week after interviewing the psychiatrists and Office of Special Investigations agents in Germany to “complete preparation of . . . [his] case.” He returned from his investigation in Germany either on or shortly before February 29. At that time he submitted his request for postponement of the trial until April 17. The application was predicated solely on the need to obtain an opinion on the accused’s sanity from psychiatrists of a “different school of diagnosis” from [140]*140those in the military. The sanity question is also the only real ground for the renewal of the motion at the trial. This is made apparent from the following colloquy at the hearing on the motion:
“LO: Then your sole basis for request for continuance is the opportunity to query other psychiatrists on the accused’s mental condition?
“DC: That, and an opportunity to further prepare my own — prepare myself to examine the prosecution’s psychiatrists, if such a course ever becomes necessary. However, you correctly stated the primary purpose, sir.
“LO: Does defense counsel feel that he is adequately prepared except for the psychiatric evaluation of the accused ?
“DC: Except for matters relating to that, yes, sir. However, that is such a central element to the case or may be as the case develops that to say I am adequately prepared on the rest is, perhaps, a misleading statement, in view of its integral relationship to the accused and the other elements of the case, from the viewpoint of the defense.”
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Opinion of the Court
Robert E. Quinn, Chief Judge:
In the early morning hours of November 8, 1955, at Nouasseur Air Depot, French Morocco, North Africa, the nine-year-old daughter of an Air Force officer was abducted from the trailer in which she and her parents lived. She was carried by the accused to a nearby area. There the accused performed indecent liberties upon the child’s person and attempted to have sexual intercourse with her. During these acts, the victim continually screamed. She was then choked into unconsciousness. Upon hearing voices in the vicinity, the accused fled the scene. However, he was quickly apprehended by the Air Police.
As a result of his brutal conduct, the accused was charged with attempted rape and attempted sodomy, both in contravention of Article 80, Uniform Code of Military Justice, 10 USC § 880, and burglary, in violation of Article 129, Uniform Code of Military Justice, 10 USC § 929. He was found guilty and sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for twenty-eight years. The convening authority approved the conviction, but it was later set aside by a board of review because of the failure of the law officer to grant a continuance to the accused. The Judge Advocate General of the Air Force certified the following issue for our consideration:
“Was the Board of Review correct, under the circumstances of this case, in its determination that the accused was materially prejudiced by the denial of the continuance requested by the defense counsel?”
As already noted, the accused was apprehended on November 8, 1955, the date the offenses were committed. On December 3, 1955, charges were preferred. The Article 32 investigation was begun two days later. The accused requested Captain Saltzman to represent him and that officer was made available on December 8, 1955, and actually served as his defense counsel during the investigation. On December 9 the accused was admitted to the Base Hospital for psychiatric evaluation. Because of the nature of the case and the seriousness of the charges, it was recommended that the accused appear before a board of psychiatrists. On December 22, 1955, he was flown to the United States Air Force Hospital at Wiesbaden, Germany, for further examination. A board of officers was convened, and it was determined that the accused was sane.
[139]*139The accused was returned to Nouas-seur in mid-January 1956. In the meantime, Captain Saltzman had completed his overseas assignment and had returned to the United States. For a time, the accused refused to consult with his newly appointed defense counsel, Lieutenant Hayes, or to cooperate in his defense. When he finally agreed to cooperate, the Article 32 investigation was completed. This occurred on January 20, 1956. The charges were referred for trial on February 1, 1956, and the accused was served with a copy of the charges on February 4, 1956.
Shortly after the service of the charges, defense counsel went to Germany for the express purpose of interviewing the psychiatrists who had examined the accused and Office of Special Investigations agents who had obtained certain statements from him while he was in the hospital. On February 29, 1956, defense counsel requested the convening authority to delay the trial until April 17, 1956. He based his request on the following grounds:
“My interrogation of the military psychiatrists involved, leads me to believe that I would fail in my duty to the accused, considering his obvious maladjustment, if I did not attempt to obtain testimony from other psychiatric experts of a different school of diagnosis. I have leads to experts in the Zone of Interior with whom I desire to communicate to this end, with a view to obtaining a deposition. To accomplish this needed preparation 1 cannot be ready to go to trial on 5 March as previously contemplated.”
Trial counsel concurred in the request for delay because he saw “no reason why the delay would seriously interfere with or hamper the case.” By endorsement dated March 8, 1956, the convening authority denied the request, and directed trial counsel “to proceed forthwith in the trial of the accused.”
The case came on to be heard on March 27, 1956. Defense counsel renewed his motion for a continuance. The law officer also denied it, and the trial proceeded. The mental responsibility of the accused was not brought in issue. On reviewing the case, an Air Force board of review concluded that the ruling was an abuse of the law officer’s discretion.
Before this Court, the Government contends that the board of review erred in its conclusion because defense counsel did not show “reasonable cause” for a continuance. Article 40, Uniform Code of Military Justice, 10 USC § 840, provides that a court-martial may for “reasonable cause” grant a continuance to either party. United States v Knudson, 4 USCMA 587,16 CMR 161. Paragraph 58c, Manual for Courts-Martial United States, 1951, provides that among the grounds that may be considered reasonable is “insufficient time to prepare for trial.” It is, therefore, important to inquire into the specific basis of defense counsel’s claim of unpreparedness.
Defense counsel entered the case “approximately the week between Christmas and New Year’s, 1955.” The record shows several applications for delay of the pretrial investigation and postponement of the trial. The details are unimportant. But the reasons for the applications are significant. These were two in number. The first was the need to inquire into the accused’s sanity; and the second was to interview the Office of Special Investigations agents in Wiesbaden, Germany, who had obtained pretrial statements from the accused during his hospitalization -in that city and to evaluate their testimony from the defense standpoint.
As early as February 3, 1956, defense counsel indicated that he would need about a week after interviewing the psychiatrists and Office of Special Investigations agents in Germany to “complete preparation of . . . [his] case.” He returned from his investigation in Germany either on or shortly before February 29. At that time he submitted his request for postponement of the trial until April 17. The application was predicated solely on the need to obtain an opinion on the accused’s sanity from psychiatrists of a “different school of diagnosis” from [140]*140those in the military. The sanity question is also the only real ground for the renewal of the motion at the trial. This is made apparent from the following colloquy at the hearing on the motion:
“LO: Then your sole basis for request for continuance is the opportunity to query other psychiatrists on the accused’s mental condition?
“DC: That, and an opportunity to further prepare my own — prepare myself to examine the prosecution’s psychiatrists, if such a course ever becomes necessary. However, you correctly stated the primary purpose, sir.
“LO: Does defense counsel feel that he is adequately prepared except for the psychiatric evaluation of the accused ?
“DC: Except for matters relating to that, yes, sir. However, that is such a central element to the case or may be as the case develops that to say I am adequately prepared on the rest is, perhaps, a misleading statement, in view of its integral relationship to the accused and the other elements of the case, from the viewpoint of the defense.”
Manifestly, a conclusion that the denial of the continuance deprived defense counsel of the opportunity to prepare must rest on the assumption that he was denied the right “to query other psychiatrists.” True, defense counsel maintained that he also needed time to prepare himself for a possible examination of the prosecution’s doctors, but only “if such a course ever becomes necessary.” Defense counsel, however, had interviewed the doctors in Germany, and it seems clear that this remark about preparation was related only to what he hoped to elicit from the “leads” that he had to doctors in the United States. He made no reference to consulting medical writings or other materials for the purpose of disputing the findings of the psychiatrists who had examined the accused. His preparations, therefore, were directed entirely to obtaining the opinion of other psychiatrists because he “[felt] that doctors differ on this question.” Thus, the issue is simply this: Was defense counsel entitled to put off the trial until he could determine whether there were doctors more “sympathetic” to the defense?
This striking fact is that to justify the delay defense counsel did not even suggest, much less offer any evidence to show, that any qualified doctor would make a finding on the accused’s mental condition contrary to, or different from, that reached by those who had already examined and tested the accused. And there is still no suggestion that the accused is anything but sane. We cannot say, therefore, that the refusal to grant a continuance prejudiced the accused. For all we know, every doctor, military and civilian, who examines the accused and his medical records might agree with the diagnosis that was made on two separate occasions in different hospitals in different parts of the world.
In the light most favorable to the accused, the situation here can be compared to that in United States v Schick, 6 USCMA 493, 20 CMR 209. There, as in this case, the defense counsel was dissatisfied with the military psychiatrists’ opinions on the sanity of the accused and attempted to obtain the opinions of doctors in the United States. Consequently, disregarding the absence of even an intimation of insanity, we should go no further than we did in the Schick case. Although, as appears more fully from his separate opinion, Judge Latimer would entirely reverse the board of review and sustain the ruling of the law officer, he is willing to join me in this disposition of the ease. Accordingly, the decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Air Force for resubmission to the board of review for further inquiry into the accused’s sanity. If the accused produces competent evidence to the effect that he had, or has still, a mental condition which affects his legal responsibility for the offenses he committed, a rehearing will be ordered. If no such evidence is available, the board of review will consider the record of trial on the merits.