Opinion of the Court
Kilday, Judge:
The accused was tried by general court-martial for attempted premeditated murder, premeditated murder, and larceny, in violation of Articles 80, 118, and 121, Uniform Code of Military Justice, 10 USC §§ 880, 918, and 921, respectively. He pleaded not guilty but was convicted as charged. He was sentenced to be put to death and to forfeit all pay and allowances. The convening authority approved the proceedings. A board of review, however, while affirming accused’s convic[649]*649tion for larceny, reduced the other findings to the lesser offenses of attempted unpremeditated murder and unpremeditated murder. The board affirmed so much of the sentence as provided for dishonorable discharge, total forfeitures, and confinement at hard labor for fifty years.
Thereafter, accused petitioned this Court for review, which was granted, and the case is before us upon a single assignment in which it is asserted that:
“PREJUDICIAL ERROR WAS COMMITTED BY THE ADMISSION INTO EVIDENCE OP THE TESTIMONY OP CAPTAIN MILLER THAT IN HIS OPINION THE APPELLANT WAS SANE.”
In view of the limited grant of review, we find it necessary to set forth only such of the facts as are pertinent to a discussion of the single issue before us. They will be recited in connection with our discussion.
At the close of the accused’s case, the defense having rested, trial counsel requested delay until the following day in order to secure the attendance of one Captain Miller, a psychiatrist. This request was favorably considered, and thereafter an out-of-court hearing was held. At that session the law officer sought to settle certain questions and to discuss the instructions. In the course of the hearing, the law officer stated to trial counsel:
“. . . I suppose that if you think rebuttal is necessary you think we have some sort of an issue here that the Psychiatrist would know something about.
“Do you think that the defense evidence has raised an issue of the accused’s insanity?”
To that inquiry trial counsel replied:
“Sir, I am certain that an attempt has been made to raise the issue. The only witness who really testified about it was the witness Gaines. I think the testimony was very weak, but I would not like to take a chance on letting the testimony stand without rebuttal.”
We commend trial counsel for his abundance of caution in this connection. A review of the record indicates trial counsel was correct in his statement that only the named witness— one Private First Class Gaines — had given testimony which could possibly be construed as raising an issue of insanity. His testimony in that connection had been substantially as follows:
“Q Now, Gaines, what is your opinion of Heilman’s general mental condition?
“A I think he’s insane.
“Q You state that you think he is insane — what do you base this opinion on?
“A Well things he’s done, like breaking windows with his hand, cutting himself with the razor. This night at the EM Club, he and Raut were drinking, just hitting each other, I think he’s mentally unbalanced, anyone is who acts queer like that.
“Q You say that he’s insane or mentally unbalanced?
“A Right.
“Q Were there any other acts that you can think of that make you think he’s insane?
“A I haven’t — no.”
Thereafter, the law officer, by questions to the witness, developed that Gaines had a high school education and a year and a half of college; that at college he pursued a course in physical education; that in that course he studied “physical physique of the body and muscular system, . . . [but] no medicine”; that he was not a doctor; and that he was nineteen years of age.
From the content of Gaines’ testimony and the manner of its delivery, it would appear as if the emphasis of his college course was placed more nearly on things physical than education.
When court opened the next morning, the prosecution offered as a witness, Captain David L. Miller, the doctor previously mentioned. He testified that at that time he was Staff Psychiatrist of an Army General Hospital; [650]*650that he had been performing those duties at the hospital for approximately two years; that he had four years of undergraduate training and a Bachelor of Arts degree; and that after four years of additional study, he was awarded a degree in medicine. After graduation, he pursued a two-year rotating internship, of which the last six months was devoted exclusively to psychiatry. Thereupon, he undertook a one-year residency in psychiatry, after which he entered the military service. And since entering the military service, he had been engaged exclusively with duty in the psychiatric field.
Dr. Miller testified he was a member of a psychiatric sanity board, of which another psychiatrist — one Major Allerton — and the case doctor — a Captain Pressman — who was responsible for the patient in the hospital, were the other members. He stated that at the board hearing the accused was given a warning under Article 31 of the Uniform Code, 10 USC § 831, and the same was explained in layman’s terms. He further testified that in the course of the hearing by the board, various materials collected by the case doctor were presented, including psy-chologic test data, the clinical psycho-logic, electroencephalogram data, and biographical history of the patient prepared by the social worker and submitted in written form. Further, it was established that the board proceeding lasted somewhat longer than one hour, and that Dr. Miller had seen and participated in interviewing the accused for an hour during that period. Dr. Miller was asked if Dr. Pressman, as the case doctor, would not be the logical person to testify as to the accused. He replied that he thought, in terms of time of interview, Dr. Pressman would be perhaps more logical than himself. But he testified that, as a member of the board, he felt from that standpoint he was as qualified as the other two members.
Although he previously had acknowledged that Dr. Pressman had done the preliminary interviewing and had brought the facts thereof to the attention of the board, Dr. Miller responded in the affirmative when the following question was posed to him by trial counsel:
“Q Now, as a result of this hearing, did you, yourself, formulate your own opinion with respect to the mental condition of the accused?”
And when the law officer inquired into the subject further, this colloquy ensued between him and the witness:
“Q Let me rephrase my question. I think you indicated you have an opinion as to this man’s mental condition, is that right?
“A That’s true, sir.
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Opinion of the Court
Kilday, Judge:
The accused was tried by general court-martial for attempted premeditated murder, premeditated murder, and larceny, in violation of Articles 80, 118, and 121, Uniform Code of Military Justice, 10 USC §§ 880, 918, and 921, respectively. He pleaded not guilty but was convicted as charged. He was sentenced to be put to death and to forfeit all pay and allowances. The convening authority approved the proceedings. A board of review, however, while affirming accused’s convic[649]*649tion for larceny, reduced the other findings to the lesser offenses of attempted unpremeditated murder and unpremeditated murder. The board affirmed so much of the sentence as provided for dishonorable discharge, total forfeitures, and confinement at hard labor for fifty years.
Thereafter, accused petitioned this Court for review, which was granted, and the case is before us upon a single assignment in which it is asserted that:
“PREJUDICIAL ERROR WAS COMMITTED BY THE ADMISSION INTO EVIDENCE OP THE TESTIMONY OP CAPTAIN MILLER THAT IN HIS OPINION THE APPELLANT WAS SANE.”
In view of the limited grant of review, we find it necessary to set forth only such of the facts as are pertinent to a discussion of the single issue before us. They will be recited in connection with our discussion.
At the close of the accused’s case, the defense having rested, trial counsel requested delay until the following day in order to secure the attendance of one Captain Miller, a psychiatrist. This request was favorably considered, and thereafter an out-of-court hearing was held. At that session the law officer sought to settle certain questions and to discuss the instructions. In the course of the hearing, the law officer stated to trial counsel:
“. . . I suppose that if you think rebuttal is necessary you think we have some sort of an issue here that the Psychiatrist would know something about.
“Do you think that the defense evidence has raised an issue of the accused’s insanity?”
To that inquiry trial counsel replied:
“Sir, I am certain that an attempt has been made to raise the issue. The only witness who really testified about it was the witness Gaines. I think the testimony was very weak, but I would not like to take a chance on letting the testimony stand without rebuttal.”
We commend trial counsel for his abundance of caution in this connection. A review of the record indicates trial counsel was correct in his statement that only the named witness— one Private First Class Gaines — had given testimony which could possibly be construed as raising an issue of insanity. His testimony in that connection had been substantially as follows:
“Q Now, Gaines, what is your opinion of Heilman’s general mental condition?
“A I think he’s insane.
“Q You state that you think he is insane — what do you base this opinion on?
“A Well things he’s done, like breaking windows with his hand, cutting himself with the razor. This night at the EM Club, he and Raut were drinking, just hitting each other, I think he’s mentally unbalanced, anyone is who acts queer like that.
“Q You say that he’s insane or mentally unbalanced?
“A Right.
“Q Were there any other acts that you can think of that make you think he’s insane?
“A I haven’t — no.”
Thereafter, the law officer, by questions to the witness, developed that Gaines had a high school education and a year and a half of college; that at college he pursued a course in physical education; that in that course he studied “physical physique of the body and muscular system, . . . [but] no medicine”; that he was not a doctor; and that he was nineteen years of age.
From the content of Gaines’ testimony and the manner of its delivery, it would appear as if the emphasis of his college course was placed more nearly on things physical than education.
When court opened the next morning, the prosecution offered as a witness, Captain David L. Miller, the doctor previously mentioned. He testified that at that time he was Staff Psychiatrist of an Army General Hospital; [650]*650that he had been performing those duties at the hospital for approximately two years; that he had four years of undergraduate training and a Bachelor of Arts degree; and that after four years of additional study, he was awarded a degree in medicine. After graduation, he pursued a two-year rotating internship, of which the last six months was devoted exclusively to psychiatry. Thereupon, he undertook a one-year residency in psychiatry, after which he entered the military service. And since entering the military service, he had been engaged exclusively with duty in the psychiatric field.
Dr. Miller testified he was a member of a psychiatric sanity board, of which another psychiatrist — one Major Allerton — and the case doctor — a Captain Pressman — who was responsible for the patient in the hospital, were the other members. He stated that at the board hearing the accused was given a warning under Article 31 of the Uniform Code, 10 USC § 831, and the same was explained in layman’s terms. He further testified that in the course of the hearing by the board, various materials collected by the case doctor were presented, including psy-chologic test data, the clinical psycho-logic, electroencephalogram data, and biographical history of the patient prepared by the social worker and submitted in written form. Further, it was established that the board proceeding lasted somewhat longer than one hour, and that Dr. Miller had seen and participated in interviewing the accused for an hour during that period. Dr. Miller was asked if Dr. Pressman, as the case doctor, would not be the logical person to testify as to the accused. He replied that he thought, in terms of time of interview, Dr. Pressman would be perhaps more logical than himself. But he testified that, as a member of the board, he felt from that standpoint he was as qualified as the other two members.
Although he previously had acknowledged that Dr. Pressman had done the preliminary interviewing and had brought the facts thereof to the attention of the board, Dr. Miller responded in the affirmative when the following question was posed to him by trial counsel:
“Q Now, as a result of this hearing, did you, yourself, formulate your own opinion with respect to the mental condition of the accused?”
And when the law officer inquired into the subject further, this colloquy ensued between him and the witness:
“Q Let me rephrase my question. I think you indicated you have an opinion as to this man’s mental condition, is that right?
“A That’s true, sir.
“Q Captain, is the opinion you have based in whole or in part on data collected and reported to you by Captain Pressman?
“A It’s based only in part upon that and part upon direct observation and questioning.”
Thereafter, the transcript reflects the following answers by Dr. Miller to questions propounded by the prosecution :
“Q At the time of this examination or interview to which you referred, did you reach any conclusion as to whether or not the accused suffers from any mental disease, defect, or derangement?
“A I did, sir.
“Q What conclusion did you reach ?
“A I reached the conclusion that he did not suffer from any disease, defect or derangement.”
Subsequently, Dr. Miller enlarged upon his opinion in that regard, defining the terms he had used and stating his conclusion that at the time of the alleged offenses the accused was so far free from mental disease, defect, or derangement, as to be able, concerning the particular acts charged, to determine right from wrong. Further, he expressed his opinion that at the time of the alleged offenses the accused was so far free from mental disease, defect, or derangement, as to be able, concerning the particular acts [651]*651charged, to adhere to the right. He further testified that in his judgment the accused had the ability to premeditate, notwithstanding a charac-terologic defect; and that the accused had the mental capacity to understand the nature of the proceedings against him and to cooperate intelligently in his own defense. He stated that his opinion as to such capacity was based upon several factors. Talking with the accused himself and discovering what he felt to be an adequate understanding of what is right and wrong, the words and sentences he was able to use in the discussion they had, sentence structure, the way he used his grammar, and the way he handled himself, all indicated to Dr. Miller that the accused was of at least average intelligence, and that he was able to comprehend the questions asked him. And the results of the psychologic testing which he had seen confirmed the expert’s conclusion that accused’s general over-all intelligence was adequate and average.
Dr. Miller was asked if he should be told that it was reported that on one occasion the accused, after drinking, plunged his hand through a double glass window, whether this would affect his diagnosis or be at odds with anything he had said. Dr. Miller replied that it would not; that he would feel such manifestation of anger would fit with his diagnosis easily — that such is one of the qualities of this sort of diagnosis, to act impulsively with angry feelings. Dr. Miller further stated that the possible instance of engaging freely in fighting with another man, just for fun, would not affect his diagnosis.
Finally, we note Dr. Miller’s answers to questions asked on redirect examination:
“Q As the result of your examination of this accused and your studies in connection with this case, are you convinced that he has no mental disease, defect or derangement?
“A I am convinced that this subject has no mental disease, defect or derangement.
“Q Is this your own opinion or that of some other doctor?
“A It is my own opinion.”
At the trial, defense counsel objected to the receipt in evidence of the testimony of Dr. Miller, on the ground that his opinion was based upon data derived by another doctor and was, for that reason, inadmissible hearsay. That objection was overruled, and such action is the basis for the issue granted by this Court.
In its brief, the defense cites state authorities and texts to support their position, including the following: Underhill, Criminal Evidence, 5th ed, § 310; State v Gevrez, 61 Ariz 296, 148 P2d 829 (1944); Ingles v People, 90 Colo 51, 6 P2d 455 (1931); Flannagan v State, 106 Ga 109, 32 SE 80 (1898); People v Black, 367 Ill 209, 10 NE2d 801 (1937); State v Layton, 125 NJL 120, 14 A2d 771 (1940), affirmed 127 NJL 227, 21 A2d 732 (1941); People v Keough, 276 NY 141, 11 NE 2d 570 (1937); State v Frotten, 114 Vt 410, 46 A2d 921 (1946).
On the other hand, appellate counsel for the Government cite other authorities and texts to sustain the admissibility of such testimony notwithstanding the objection made by the defense. These authorities include: Carey v United States, 296 F2d 422 (CA DC Cir) (1961); Jenkins v United States, — F2d — (CA DC Cir) (October 26, 1961); District of Columbia Redev. L. A. v 61 Parcels of Land, 235 F2d 864 (CA DC Cir) (1956); G. & C. Merriam Co. v Syndicate Pub. Co., 207 Fed 515 (CA 2d Cir) (1913); Atchison, Topeka & Sante Fe Railway Co. v Preston, 257 F2d 933 (CA 10th Cir) (1958); H & H Supply Company v United States, 194 F2d 553 (CA 10th Cir) (1952); United States v Aluminum Co. of America, 35 F Supp 820 (SD NY) (1940); Blount County v Campbell, 268 Ala 598, 109 So 2d 678 (1959); Covina Union High Seh. Dist. of Los Angeles Co. v Jobe, 174 Cal App 2d 340, 345 P2d 78 (1959); People v Odmann, 160 Cal App 2d 693, 325 P2d 495 (1958); People v Brown, 49 Cal 2d 577, 320 P2d 5 (1958); Watts v Maryland, 223 Md 268, 164 A2d 334 [652]*652(1960); State Tax Commission v Assessors of Springfield, 331 Mass 677, 122 NE2d 372 (1954); Davenport v Haskell, 293 Mass 454, 200 NE 409 (1936); National Bank of Commerce v City of New Bedford, 175 Mass 257, 56 NE 288 (1900); State v Ward, 10 Utah 2d 34, 347 P2d 865 (1959).
Boards of review have sustained the admissibility of the testimony of a psychiatrist under these circumstances in United States v Burke, 28 CMR 604, petition denied, 11 USCMA 783, 29 CMR 586; and United States v Davis, 10 CMR 429, petition denied, 3 USCMA 820, 11 CMR 248.
Also, attention should be given to the following provision of paragraph 138e, Manual for Courts-Martial, United States, 1951:
“Expert testimony may be adduced in several ways. An expert witness may be asked to state his relevant opinion, when based on his personal observation or on an examination or study conducted by him, without first specifying hypothetically in the question the data upon which the opinion is to be based.” [Emphasis supplied.]
Concededly, there is a conflict of authorities as to the admissibility of testimony by a psychiatrist if such testimony is based in whole or in part upon information received by the psychiatrist from another. However, we do not find it necessary to attempt to settle that conflict. Nor is it necessary in the case at bar to determine whether the Government might permissibly have proceeded under that part of paragraph 138e, Manual for Courts-Martial, supra, dealing with a study conducted by the witness. See United States v Walker, 12 USCMA 658, 31 CMR 244, this day decided. We pretermit resolution of those matters until they are squarely presented in a proper ease.
The record in this case reflects that Dr. Miller had formed his own conclusion as to the mental capacity of the accused through observation and conversations; and that his opinion was his own and not the opinion of another doctor. We do not have before us a case in which a trained psychiatrist testifies regarding an accused’s sanity even though he has not observed and interviewed him. Dr. Miller both observed and interviewed the accused and came to his own independent evaluation. As an expert witness, it was proper for him to state his expert conclusion.
True, it was developed that in connection with his inquiry into the case he had received information from others and at one point in his testimony stated his opinion was based in part on such other information. However, from other explicit statements by the witness and his whole testimony, it is quite clear that he had formed his own professional and expert opinion as to the' mental condition of the accused. In this situation it was proper to permit Dr. Miller to give that opinion. The extent of his examination, his opportunities to observe the accused, the degree to which he was informed of accused’s condition, and other matters in connection therewith were proper subjects of inquiry, on cross-examination, that the court might determine the weight to be given to his testimony. Defense counsel was given wide range in the inquiry and pursued the same ably and thoroughly. Such matters might bear on the weight to be given the doctor’s testimony, but had no effect upon its admissibility. See United States v Walker, supra, and authorities there cited.
Some might feel that this record reflects a ridiculous situation. Private Gaines was properly permitted to state his lay opinion that accused was insane, but, thereafter, strenuous objection is made to the testimony of a highly qualified psychiatrist who observed and conversed with the accused. We regard the situation as reflecting the concern of our present system of military justice for an accused, rather than a ridiculous matter.
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.