Opinion of the Court
DARDEN, Judge:
The appellant was brought to trial before a general court-martial convened at Lake Mead Base, Nevada, for the breach of a lawful order and for involuntary manslaughter, violations of Articles 92 and 119, Uniform Code of Military Justice, 10 USC §§ 892 and 919, respectively. Contrary to his plea, he was found guilty as charged and given a sentence of confinement at hard labor for twelve months and forfeiture of $68.00 per month for a like period. Both the findings and the sentence remain unchanged. The case comes to us for consideration of three issues. The first is:
I. Dying Declaration
(A)Whether the alleged dying declaration of Corporal Solis meets sufficient standards of completeness to allow for its admittance into evidence.
(B) Even assuming arguendo that it does, whether the law officer erred by his failure to submit to the court members (the finders of fact) for their ultimate factual determination the question whether the declaration sufficiently meets the criteria to be denominated a dying declaration.
(C) Whether the law officer erred by his failure to give a proper cautionary instruction to the court members concerning the weight and credibility to be accorded such a declaration.
The trial record sadly reflects that about 12:30 a.m., January 7, 1968, accused and Corporal Solis were posted as guards at Q Gate, Lake Mead Base, [268]*268Nevada. The Corporal of the Guard had assigned each man a pistol holding a magazine with five rounds. The serial number of each weapon was recorded, as was the name of the as-signee.
Later that morning, the Corporal of the Guard returned to Q Gate in response to a radio call. He found Corporal Solis conscious on the “floor,” but bleeding from a neck wound. Two pistols were nearby. Prosecution evidence adequately shows that these were the weapons assigned to the two men and that accused’s weapon had been fired.
Corporal Solis received mouth to mouth resuscitation from two corpsmen and was then carried in an ambulance to the emergency room of the base hospital. Doctors immediately made a neck incision, inserted an endotracheal tube, and then made use of an artificial respirator, thereby assuring the Corporal an adequate air supply. He suffered from a bullet wound in the neck that severed his spinal column, causing complete paralysis.
The medical testimony of two doctors who cared for the victim indicated that the wounded Marine was conscious the entire time spent in the hospital until death. He was rational and gave intelligent responses. Doctors communicated with Solis by patting his head to gain attention. He responded to their questions with either a blink of the eyes or a slight shake of the head. Both medical officers thought that the victim believed death imminent.
During this emergency treatment, the Catholic Chaplain arrived to give the victim last rites. This witness testified that he spoke to Solis, calling him Ricardo and asking: “‘You know me, don’t you ?’ ” When Corporal Solis opened his eyes, the Chaplain said: “ ‘Ricardo, you are in a bad way. I am here to give you the last rites. Now if you are aware of who I am, make some sign, will you ?’ ” Solis then opened his eyes wide and blinked. Father Raemers then related: “I realized then he knew that I was standing there and I gave him the last rites.” The witness believed the victim remained conscious during the ten-minute period involved.
Captain Beckner, appointed to conduct an informal investigation of the incident, related that he had gone to the hospital on January 7 with a list of twelve questions. With permission, he went to the Corporal’s room accompanied by the attending physician. At this time the patient indicated he knew the doctor, was oriented, and in no pain. He also acknowledged the presence of Captain Beckner and indicated a willingness to answer questions.
The Captain did not follow his planned order of questioning. From the list of twelve, he asked but three questions. Although one of the doctors testified otherwise, the Captain asserted that the doctor ended the questioning by saying: “ ‘If you really feel that you need to ask him some more, go ahead and ask some more, but I prefer you didn’t.’ ” The Captain then related:
“The first question I asked was ‘Did PFC Plaut draw his own pistol from its holster?’ Corporal Solis answered ‘Yes,’ by a nod of his head, affirmative nod of his head. The second question I asked was ‘Was PFC Plaut holding his own pistol when it discharged?’ Again Corporal Solis answered with an affirmative nod of his head. The third question and last question which I asked ‘Did PFC Plaut shoot you with his pistol?’ Again Corporal Solis nodded his head ‘Yes.’ ”
The next day this officer returned to the hospital desiring a further period of questioning but found the Corporal unavailable. Later that day Corporal Solis died.
The Manual for Courts-Martial, United States, 1951, provides that in a trial for murder, manslaughter, or negligent homicide, dying declarations of the alleged victim are admissible to prove the circumstances of the act that caused the dying condition, including the identity of the actor. This [269]*269paragraph of the Manual further provides:
. . The declaration must have been made while the victim was in extremity and under a sense of impending death, although it is not necessary to show that the victim asserted that he was under this impression if that fact is otherwise established. There is no requirement that death immediately follow the declaration, but if it was made while the victim had a hope of recovery it is not admissible under this exception to the hearsay rule even though he died shortly thereafter. If not obtained by duress or under circumstances indicating that the declarant may have been misled, a dying declaration is admissible even though it was made in answer to leading questions or upon urgent solicitation. The declaration may be by spoken words or intelligible signs or it may be in writing. A declaration which was made by a person who would not have been, competent as a witness may not be received in evidence under this exception to the hearsay rule, nor may a dying declaration or part thereof be received in evidence even though the declarant would have been competent as a witness, if for any reason it would have been inadmissible as testimony given on the witness stand by the declarant.” [Paragraph 142a.]
This Court has written little on the subject. However, in United States v DeCarlo, 1 USCMA 91, 1 CMR 90, a unanimous Court did declare:
“. . . The authorities are uniform in defining, if not in applying, the basic rule relative to the admissibility of such statements. Dying declarations are admissible when they constitute statements made by a person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause of, and the circumstances surrounding, the homicide.” [Id., at page 92; cf. United States v Smith, 5 USCMA 314, 320, 17 CMR 314.]
It is commonly recognized that a dying declaration is admissible as an exception to the hearsay rule. As such, it also constitutes an exception to the right of an accused to confront his accuser. Cf. Pointer v Texas, 380 US 400, 13 L Ed 2d 923, 85 S Ct 1065 (1965). It is founded on the demands of justice and in the belief that one about to die is not likely to distort the truth. If otherwise admissible, a dying declaration may be proved by any competent witness. It may be oral, written — either in narrative or questions and answers — -or in any other form that will convey the thoughts of the declarant. It is a device generally restricted to the criminal prosecution of homicide1 “in which the death of the declarant is the subject of the charge and the circumstances of the death are the subject of the declarations.” 40 Am Jur 2d, Homicide, § 347. It is confined to circumstances immediately attending the homicide and forming a part of the res gestae. “If the statement in question is conjecture only, or an inference based on collateral facts, then it should certainly be excluded. But where the statement is based on facts properly before the court, and where it constitutes but a shorthand summary of circumstances known to the declarant, it is, in our view, admissible in evidence.” So spoke this Court in United States v DeCarlo, supra, at page 93. Matters not immediately connected with the fatal occurrence are excluded. Annotation, Dying Declarations—Prior Events, 14 ALR 757.
When the declaration is made, the declarant must have the fixed belief that death is a certainty. There must be a “[d]es-pair of recovery.” Fear or even belief that illness will end in death is not sufficient, for “ 'a settled hopeless expectation’ ” is required. Shepard v United States, [270]*270290 US 96, 100, 78 L Ed 196, 54 S Ct 22 (1933). But Shepard also makes it clear that “[t]here is no unyielding ritual of words to be spoken by the dying.” Indeed, despair may be gathered “though the period of survival outruns the bounds of expectation.” Thus, there need not be “a belief or apprehension of immediate and instant dissolution.” 40 Am Jur 2d, Homicide, §§ 366, 368; People v Warren, 259 Ill 213, 102 NE 201 (1913). It is the “impression of the impending death” rather than the “rapid succession of death” that makes for admissibility. The critical factor, therefore, is the declarant’s state of mind, not the time intervening between a declaration and the death of the decedent. Ayers v State, 215 Ga 325, 110 SE2d 669 (1959); State v Brown, 209 Minn 478, 296 NW 582 (1941). Yet, the time interval, if long enough, may nonetheless cast doubt upon the person’s “[d]espair of recovery.” Emmett v State, 195 Ga 517, 25 SE2d 9 (1943), certiorari denied, 320 US 774, 88 L Ed 464, 64 S Ct 76 (1943). However, a five-month lapse between the declaration and the death of the dec-clarant did not render the statement inadmissible in State v Craine, 120 NC 601, 27 SE 72 (1897). Similarly, it has been held that a declaration is admissible, though made while hope lingered on, if it is afterwards reaffirmed when hope is gone. Cooper v State, 182 Ga 42, 184 SE 716, 104 ALR 1309 (1936), and accompanying annotation.
The introduction of a dying declaration must be preceded by an offer of proof that establishes the existence of those conditions that render the declaration admissible. Proof of the preliminary fact that the declarant spoke in contemplation of death may be shown by existing circumstances although nothing is said respecting death. This may include facts relative to the mental and physical condition of the victim, the nature and extent of wounds that make obvious the impossibility of survival, the declar-ant’s own conduct and statements, and the receipt of the last rites of the church of his faith. Commonwealth v Peyton, 360 Pa 441, 62 A2d 37 (1948); 40 Am Jur 2d, Homicide, § 382; Warren on Homicide, Perm ed, § 257. In Morehead v State, 12 Okla Crim 62, 151 Pac 1183, 1189 (1915), the court presented the rule in this way:
“. . . A sense of impending death may be inferred from the character of the wound, from the opinion of his physician, and from other circumstances showing his state of mind.
“Says Greenleaf:
‘It is enough if it satisfactorily appears, in any mode, that they were made under that sanction, whether it be directly proved by the express language of the de-clarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant’s mind.’ Section 158.”
Compare Fulton v State, 209 Miss 565, 47 So 2d 883, 885-886 (1950), where the court observed:
“The rule is laid down as: ‘It is well settled that the sense of impending death which a dying person must have had in order to render a dying declaration made by him admissible in evidence may be inferred from the nature of the wound or the state of his illness, without any express declaration to show that he was sensible of impending death. It is clear, however, that this rule does not mean that the inference may be drawn from the mere fact that the wound, in the opinion of the man of science, was in point of fact mortal, but means that the nature of the wound or the illness should have been such as to affect the knowledge and control the opinion of the dying person himself, as to the danger to which he stood exposed. Evidence of a physician’s opinion as to a declarant’s condition [271]*271at the time of making declarations is admissible not only to show the latter’s state of mind, where such opinion was communicated to him, but also to show that the declarant was actually in a condition from the very nature of which he would have had a sense of impending death.’ 26 Am Jur, Homicide, Sec 421.”
We have no doubt that in the case before us, Corporal Solis answered Captain Beckner’s question while fully competent and with an awareness of his dying condition. The circumstances of this case that we have previously set out and that encompassed every factor enumerated in the preceding paragraphs permit no other conclusion.
However, the requirement is well set that completeness of the declaration, whatever its form, is a necessary prerequisite for admissibility. Difficult to apply, the bounds of this requirement are well shown by the two following excerpts:
“. . . What we understand by the expression, that the statement ‘must be complete in itself,’ is, not that the declarant must state every thing that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning as to such fact.” [State v Patterson, 45 Yt 308, 12 Am Rep 200 (1873).]
“The rule that dying declarations must be complete does not mean that all of the affairs of the deceased must be related. It means that the statement must be complete as far as it goes. If a dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. State v Nettlebush (1866) 20 Iowa 257; State v Patterson (1873) 45 Vt 308, 12 Am Rep 200; State v Tubbs (1928) 101 Vt 5, 139 A 769.” [See Annotation, Dying Declarations—Incomplete-pqss, 94 ALR 679.]
These authorities are clearly speaking of a concept affirmative in nature in which the measurements are taken of those things said, unconditioned by that which was left unsaid. The narrative or the answers to questions presented must in each instance stand on its own, to be either accepted or rejected. Accordingly, we believe— contrary to the assertions of the defense — that the responses of Corporal Solis to the questions asked him by Captain Beckner represent individually that degree of completeness that permits their admissibility as a dying declaration. We do so believing with certainty that each is “a full expression of all that . . . [the Corporal] intended to say” in response to the question asked and that each, therefore, is “complete as far as it goes.”
Considered in toto, Corporal Solis’s statement meets the designation of a dying declaration. We believe- the prosecution has carried its burden of meeting those prerequisites necessary to permit the introduction of the declaration into evidence.
There is agreement that the law officer has the initial responsibility of determining admissibility. Appellate defense counsel also agree that under the majority rule the law officer exclusively determines whether or not a proper foundation has been presented for the admission of the assertions as dying declarations. The contrary view, however, is that the law officer determines whether a 'prima facie showing has been made on the question of admissibility, with the ultimate decision left for submission to the finders of fact. Contending that neither the Uniform Code of Military Justice nor the Manual for Courts-Martial offers guidance in this area, counsel for the defense believe that our adoption of the latter view would be more consonant with the Court’s earlier holdings that questions of fact should be left to the jury.
Appellate Government counsel, in turn, refer to Article 51(b) Code, supra, 10 USC § 851, for this Article specifically provides that the law of-[272]*272fieer or the president shall rule upon interlocutory questions and that such rulings are “final and constitutes the ruling of the court.”
In this regard, we note that paragraph 142a, Manual, supra, makes no specific provision that restricts the law officer’s ruling to the question of admissibility of dying declarations, unlike paragraph 140a, Manual, supra, which concerns admissions and confessions and which leaves the question of voluntariness for the ultimate determination of the jury.
Our adoption of the majority rule in this ease is consistent with both the Code and the Manual and, contrary to the arguments of the defense, does not deprive the court of its fact-finding function. In essence, these arguments ignore the distinction between admissibility and credibility, a distinction made clear by the following quotation from State v Wright, 36 NM 74, 8 P2d 443, 445-446 (1932):
“While there is a minority view which supports this statement of the law, the decided weight of authority is to contrary. Under the majority view which we favor, whether the tendered declaration was made under the sense of impending death is a preliminary matter to be determined by the court. Having so determined, the declaration is admissible, and it is not properly within the jury’s province to overrule the court and say it was not so made. 3 Wigmore on Evidence (2d Ed) § 1451; Wharton’s Criminal Evidence (10th Ed) § 296b, p. 577; 4 Encyc. of Evidence, 948; 2 Jones’ Com. on Evi. § 332, p. 774; Case Notes, 56 LRA 434; 16 LRA (NS) 660. Once admitted, it is for the jury to appraise the same. It will determine the truth or falsity of the claim that the tendered declaration was in fact made, the accuracy or inaccuracy, good faith or imposition in the witness’ recital of it, and generally pass upon the weight to which it is entitled. Gurley v State, 101 Miss 190, 57 So 565.”
Instructions on credibility, say this Court’s previous cases, must be requested, for “the absence of a request for special instructions precludes consideration upon appeal.” United States v Schreiber, 5 USCMA 602, 609, 18 CMR 226; United States v Flippen, 16 USCMA 622, 37 CMR 242. It is equally clear, however, that in those instances where the lack of such an instruction would result in a clear miscarriage of justice, this Court has held the omission to be plain error under Rule 52(b), Federal Rules of Criminal Procedure. That was the holding in United States v Stephen, 15 USCMA 314, 35 CMR 286, and United States v Pond, 17 USCMA 219, 38 CMR 17. Both cases represent instances in which the evidence for and against the accused was in virtual equipoise. Credibility of the witnesses, therefore, was of paramount importance.
In Schreiber, the Court applied the general rule rather than the exception, for, in that case, testimony of an accomplice was largely cumulative. Thus, the absence of a sua sponte instruction on credibility would not have materially affected the result. So, too, in this case. Here, unlike Pond and Stephen, prosecution’s presentation consists of more than the introduction of a dying declaration. The strength of its case does not depend solely upon the effect of the declaration. Indeed, the evidence without the declaration clearly supports the findings. Under the circumstances reflected by this record of trial, as in Schreiber, we perceive no miscarriage of justice resulting from the omission of a sua sponte instruction regarding the credibility to be given the dying declaration of Corporal Solis.
The next assigned error asks:
II. Whether the accused’s extrajudicial statement to Sergeant Horseley was improperly admitted into evidence.
Having received word of a shooting, Sergeant Horseley went to Q Gate for on January 7, 1968, he was Sergeant of the Guard. On the Sergeant’s arrival, the first person he saw was the accused in the company of two other [273]*273Marines. Knowing that Plaut was a member of the guard at that post, he asked what had happened. Subsequently, at the Sergeant’s suggestion, he and Plaut went to the guardhouse. The accused was permitted to roam about but spent much of his time in the guard supervisor’s office. The Sergeant thought this best, for everyone present was asking questions that he didn’t want the accused answering. He made no attempt to question or interrogate the accused. Nevertheless, Plaut told him that he hadn’t meant to shoot Solis and that if Solis would live he would be willing to spend the rest of his time in the Marine Corps brig.
Trial defense counsel had objected to the court’s receipt of this testimony because of the belief that during the time described the accused was in custody and that Miranda2 precepts had been violated. An out-of-court proceeding clarified the problem, for testimony there showed first that, in response to the Sergeant’s initial question at Q Gate, Plaut had replied that “Solis had come up behind him and drawn Plaut’s pistol out of the holster and put it in his back and Plaut had turned around and when he did, he said that he had hit the pistol and it went off.” This testimony brought out by the defense cross-examination of the Sergeant never reached the court and was in no sense relied upon by the prosecution in the presentation of its case. The Sergeant then went on to testify that at the time he was only aware that a shot had been fired and suspected at most a breach of a regulation. He was unaware that a man had been wounded and certainly suspected Plaut of nothing. We inject here the note that after this exchange, Captain Beekner found the accused had been the other member posted at Q Gate and then warned him of his Article 31 rights and of his right to counsel.
Regardless, Sergeant Horseley went on to relate further that while in the guardhouse he attempted to fulfill the accused’s request to speak to his Platoon Commander by placing a phone call to that officer. While so doing, the accused came forth with the statement that he hadn’t meant to shoot Solis. At the time of this utterance the Sergeant was sitting on a desk trying to dial the Lieutenant’s telephone number. There was no conversation between the accused and the Sergeant. There had been no attempt to interrogate the accused about the incident, no questions were asked, and no orders were given.
The record fails to show a relationship between the statement offered by the prosecution and the appellant’s initial denial. Not only is there an intervening Article 31 warning between the two but their manifest inconsistency refutes the argument that the latter is but the poisoned fruit of the former. This record of trial satisfactorily shows the lack of relationship between these two utterances. Cf. United States v Bearchild, 17 USCMA 598, 38 CMR 396. We consider the latter to be completely voluntary. United States v Vogel, 18 USCMA 160, 39 CMR 160; United States v Hinkson, 17 USCMA 126, 37 CMR 390; cf. United States v Gorko, 12 USCMA 624, 31 CMR 210; United States v Ballard, 17 USCMA 96, 37 CMR 360.
The third issue before us is:
III. Whether Lieutenant Phillip J. Schwartz as a matter of law should have been disqualified from serving at trial as the assistant trial counsel.
Article 27(a), Uniform Code of Military Justice, 10 USC § 827, states in part that no person who has acted as an investigating officer in a case shall thereafter act as either the trial or assistant trial counsel in the same case. The allied papers before us show that Lieutenant Schwartz, the assistant trial counsel, acted initially as appointed counsel for the three-man board of investigation that inquired as to the facts and circumstances attending Corporal Solis’s death. Included in the board proceed[274]*274ings are exhibits revealing that the Lieutenant had written to Dr. Belli-veau requesting clarification of certain matters the doctor had referred to following his examination of Corporal Solis’s body.3 Similar board exhibits show that as counsel, the Lieutenant had posed questions for Father Raemers.4 Captain Beckner’s testimony also indicated that Lieutenant Schwartz had prepared the twelve questions that the Captain tried to have answered by Corporal Solis before his death.
Following the board’s recommendation that the accused be disciplined under Article 92, Code, supra, 10 USC § 892, for violating a base instruction, the Lieutenant, in the capacity as base judge advocate, submitted a memorandum to the Commanding Officer, Marine Barracks, Lake Mead Base, in which he indicated that four possible offenses were suggested by the evidence adduced during the investigation — involuntary manslaughter, violation of a lawful regulation, negligent homicide, and careless discharge of a firearm. He concluded that the charges on the first two above were most appropriate. The Commanding Officer of the Marine Barracks adopted the Lieutenant’s views, as is indicated by his letter of transmittal of the board record to the Base Commander, who, in passing the record through the chain of command, concurred in the recommendations made by his subordinate. The pretrial advice in this case, however, was prepared by the staff judge advocate for the Commanding Officer, Field Command, Defense Atomic Support Agency, Sandia Base, Albuquerque, New Mexico.
The appellate Government counsel, in reply, note first that Captain Vogel, the assistant defense counsel, had represented the accused at the pretrial proceeding and thus was aware of the Lieutenant’s earlier participation in the case. In the absence of objection and a show of prejudice at the trial level, appellate Government counsel see no reason for setting the conviction aside. United States V Mickel, 9 USCMA 324, 26 CMR 104. They further argue that the allegation lacks substance for the proceeding shows only that the Lieutenant carried out his duties and in so doing did not subordinate or supersede the investigative body.
We are satisfied that in this case the actions of Lieutenant Schwartz did not preclude him from later serving as assistant trial counsel. In essence, this case is controlled by United States v Young, 13 USCMA 134, 32 CMR 134. We believe it is the character of the board proceeding in this case that brings about doubt as to the Lieutenant’s activities. In a board of investigation proceeding the appointed counsel necessarily acts somewhat differently from and becomes more involved than the legal advisor to an Article 32 investigator, whose actions were at issue in Young. This does not mean, however, that one’s action breaches Article 27(a), Code, supra, while the other’s does not. The Manual of the Judge Advocate General, Department of the Navy, specifically provides under section 0505b:
“Duties. Counsel for the formal board, whether appointed or junior member, shall call witnesses and conduct the direct examination of all witnesses except those requested or called by a party. He shall arrange for a place of meeting of the board and for the assistance of reporters, interpreters, orderlies, and such clerical assistants as may be needed. Counsel for the board shall administer the oath or affirmation to the reporters, interpreters, and all witnesses, and he shall supervise the recording of the proceedings and the preparation of the record. It is the duty of the counsel for the board to bring out all the facts, in an impartial manner without regard to the favorable or unfavorable effect on persons concerned.”
Our review of the proceedings shows Lieutenant Schwartz as simply fulfilling these responsibilities. This [275]*275is also true of tbe memorandum he subsequently wrote as the base judge advocate. This again was the fulfillment of his responsibilities in that capacity. We are in accord with the board of review who, in resolving this issue against the accused, reasoned:
“Viewing the earlier roles of Lt. Schwartz as counsel for the formal Board of Investigation and legal officer, we cannot agree that his conduct as such superceded [sic] the investigation board or disqualified him to perform as assistant trial counsel at the trial of the accused. Certainly, his conduct in gathering evidence for the investigation appears to be entirely consistent with the duties of counsel for the board prescribed by the JAG Manual. Nor is it considered that the legal advice given in his capacity as legal officer to the preliminary inquiry officer or to the Convening Authority of the investigation — following the board’s admission of its findings, opinions and recommendations — disqualified him as assistant trial counsel. United States v Haynes, 7 USCMA 477, 22 CMR, 267. The assignment of error is denied.”
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.