Opinion of the Court
Quinn, Chief Judge:
The accused was tried by a general court-martial convened at Camp Hauge, Okinawa, for premeditated murder of a fellow Marine, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918. He was convicted of unpremeditated murder and sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for fifteen years. The conviction was approved by the convening authority, but modified by a board of review. Although the accused objected at trial to an instruction on involuntary manslaughter because it was inconsistent with his defense, the board of review concluded the evidence was sufficient only to show the homicide was caused by culpable negligence. It, therefore, affirmed only findings of guilty of involuntary manslaughter, in violation of Article 119 of the Uniform Code, 10 USC § 919, and reduced the period of confinement to three years. We granted further review to consider the correctness of the board of review’s decision and its denial of a separate petition for a new trial.
About 7:10 a.m. on November 13, 1961, the body of Corporal Stroman L. Ford was found on Kin Beach, Okinawa. Ford was dead. His body was on its back, with the head on the beach and the feet in the ocean; the water came to about the beltline. The body was clothed in a white T-shirt, black trousers, and sneakers. Rigor mortis was “[f] airly extensive.” There was a large bruise that measured 8x7 centimeters in the left parietal area of the skull; in an “adjacent” area there was a small cut about 2 centimeters long. Contusions were about the right eye and bridge of the nose; there was a small cut on the left temple, and one in front of the left ear. An autopsy performed that afternoon indicated the “cause of death was drowning with the immediate cause . . , being pulmonary edema [accumulation of fluids in the lungs].”
An examination of the beach area led to the discovery of human bloodstains on a low coral rock formation about fifteen yards from Ford’s body. “[D]rag marks” on the beach, which started at the base of a raised grassy bank in the rear of Ford’s barracks, trailed across the coral rock outcropping to the place where the bloodstains were found. Five days later, the accused gave Criminal Investigator Andrew N. Thomson a statement. Among other things, the accused admitted that on the night of November 12 he and Private William A. Bauer had a fight with Ford in the area in back of the barracks. While “not sure,” the accused thought Ford was rendered unconscious. He and Bauer then “picked him up and carried him down” to the coral rocks. They “put his head under the water” a couple of times and then “pushed . . . [him] into the water.” Bauer “said he thought . . . [Ford] was dead.” He and the accused returned to the barracks. If this was all the evidence, the record of trial would not merely support the reduced findings of the board of review, but indicate that those findings were generous to the accused. To submerge a person known to be unconscious several times in the ocean, and then push him into the water, would readily support the inference of an intent to effect his death. However, there is other evidence in the case which, the accused says, shows Ford was “alive . . subsequent to his affray with the accused.”
One of the circumstances emphasized by defense counsel at trial to show the accused’s fight with Ford was unrelated to his death, and a matter which gave the board of review some concern, was the large wound on Ford’s head. According to the medical evidence, the wound was probably caused either by a [575]*575fall or by a blow with a “blunt instrument”; if an instrument was used blood would “probably” adhere to it after the blow. The wound was probably received before death because it would not otherwise have matted with the sand as it did. According to Dr. Stewart A. Chamblin, Jr., who performed the autopsy, the injury would “likely” produce unconsciousness. The accused testified he used no weapon or club in the fight with Ford; and he maintained neither he nor Bauer “bang[ed]” Ford’s head against the coral. He denied that either he or Bauer hit Ford with anything but his fists. The evidence provides a firm basis upon which the triers of the facts could reject these denials and conclude the accused was connected with the injury.
The accused admitted that in the course of the fight with Ford, Bauer took out a knife. The accused said he grabbed the knife from Bauer before it was used. However, he did not produce the knife. He did not attempt to explain that it was no longer available to him at trial; and he did not describe the knife as being either so small or so light as to be incapable of inflicting the wound. The omissions are significant in light of the medical testimony that sand was “matted in the blood” in the wound area, and that this condition could occur only if the wound was inflicted before Ford died. The accused admitted that when he took the knife from Bauer, he “got down beside” Ford and grabbed an arm that “Bauer . . . [had been] holding down.” He also admitted he threw “[m]aybe two fists fulls” of sand at Ford. Ford said: “Go ahead kill me.” “[A] 11 of a sudden,” Ford “just stopped” fighting and “laid there.” In one of his pretrial statements, the accused described what happened next, as follows:
“Q. After throwing the dirt in Fords face what did you do?
“A. We picked him up and carried him down to the water and layed him on the coral. Then Bauer dunked his head under the water and pulled it out again. He did this twice I think. I’m not sure but I think I slided Cpl Fords legs around at this time. Then we pushed Cpl Ford into the water.
“Q. After pushing Cpl Ford into the water, what did you do.
“A. We went back up beside the barracks.
“Q. After throwing Ford into the water did you believe him to be dead?
“A. No! I didn’t think he was dead. Bauer said he thought he was dead but he kept looking around to make sure Cpl Ford wasn’t sneaking up behind us.”
At trial, the accused changed his story. He testified that he and Bauer carried Ford’s body to the coral rocks, and Bauer merely “put . . . [Ford’s] head underneath the spray” from the incoming waves that broke about twenty feet away. He also insisted Ford was left on the coral rocks, not pushed into the ocean. This testimony, of course, was not conclu-give of the issue. The triers of fact were free to reject the trial version of the disposal of Ford’s body, and credit the accused’s pretrial account of what happened in the fight on' the beach. They could reasonably infer that the knife was used as a bludgeon and caused the wound; that sand “matted” with the blood when the accused threw sand at Ford; and that the sand did not wash out when Ford’s head was held under water by Bauer. The inference is strengthened by the accused’s failure to produce, or account for, the knife. See Dyson v United States, 283 F2d 636 (CA 9th Cir) (1960), cert den 366 US 974, 6 L ed 2d 1264, 81 S Ct 1944 (1961); Elwert v United States, 231 F2d 928 (CA 9th Cir) (1956). We are not suggesting that this is the only basis upon which to account for Ford’s head wound. There is evidence of other drag marks, leading from a log at the water’s edge to about the same place on the beach just below the grass embankment from which Ford and the accused fell, which join the drag marks leading from the coral on which the bloodstains were found. It is reasonably inferable that in the course of the fight on the beach Ford hit his héad on [576]*576the log and was rendered unconscious; and that the accused and Bauer thereafter attempted to make it appear that Ford was injured on the coral rocks. In the post-trial review, the staff legal officer presented several other possibilities that find support in the evidence. What we say here is merely that there is ample justification in the evidence to connect the accused with a large wound in Ford’s head. See United States v Hurt, 9 USCMA 735, 788, 27 CMR 3.
In concluding that the accused did not entertain a deliberate intent to kill Ford, the board of review obviously gave more weight, than did the court-martial, to some of the accused’s trial testimony. Its opinion indicates an unwillingness to draw the inference that Ford’s head wound was deliberately inflicted by the accused. However, the board of review’s doubt as to the precise manner in which the wound was sustained does not undermine the validity of its findings that the accused’s conduct brought about Ford’s death. Cf. United States v Whitley, 3 USCMA 639, 645, 14 CMR 57.
Other items of evidence are selected by the accused to show that at least a reasonable doubt exists as to whether his fight with Ford was connected with Ford’s death. He points to the “fact” that Ford’s body was found on the beach about ten to fifteen yards from the coral rock on which Ford was “left lying.” The board of review’s opinion does not support the accused’s conclusion that it determined Ford was actually left on the coral.1 But whether Ford was “pushed” into the water, as the accused admitted in his pretrial statement, or whether he was left on the coral, as the accused testified at trial, is immaterial. If Ford was placed in the water while in an unconscious condition, gross negligence is manifest. Similarly, if Ford was left on the coral, his condition and his close proximity to the ocean provided the board of review with a reasonable basis upon which to conclude there was more than a foreseeable likelihood that Ford might stumble into the water and drown.
The accused also attaches a great deal of importance to testimony by Private First Class Charles H. Williams that he saw Ford in the barracks sometime between 12:30 and 3:30 a.m. on November 13. According to Williams, Ford was then wearing “a dark blue shirt and a skivvy shirt under it.”2 Pointing to his own testimony that the fight with Ford took place before 11:00 p.m. on November 12, and that Ford’s body when found was clothed in a white T-shirt not a blue shirt, the accused contends that Ford must have been alive and well long after he and Bauer left him on the beach. However, Williams’ estimate of the time he saw Ford is entirely consistent with the other evidence, and does not cast doubt upon the validity of the finding that the accused’s actions directly resulted in Ford’s death.
Williams testified he saw Ford in the' barracks “head.” He placed the time as between 12:30 a.m. and 3:30 a.m. Yet, Williams had no watch. He said he estimated the time as follows:
“. . . I figured I went to hit the pad about 10:30 and I’d say it took me at least a half hour to sleep. So, I did sleep sometime so I just figured 12:30 to 3:30, because when I figured I hit the rack again there was a period of time before reville [sic] went.”
Williams further testified he “normally” made a “head” call during the night at about two o’clock. In reply to defense [577]*577counsel’s question whether he “just as likely” saw Ford about two o’clock, as about twelve or twelve-thirty, he said, “I couldn’t say that.” Other evidence indicates that Williams’ estimate of the time is consistent with the times of the two fights the accused had with Ford. It also provides a reasonable explanation for the change in Ford’s attire, if there really was one, between the time Williams saw him and the second fight with the accused.
Corporals Lowell E. Helms and Grant E. Keys testified that while on a roving patrol on the night of November 12, they found Ford and the accused engaged in a “scuffle” in front of the barracks. They separated the two. The accused, who appeared to be sober, was told to leave. Ford appeared to be drunk, and insisted he “wanted to talk” to the accused. Keys talked to him a “few minutes”; Ford then went into the barracks through the front entrance. The members of the patrol walked to the side entrance, and Lance Corporal Thomas J. Graham entered the barracks to check on Ford. He came out, and reported that Ford was “not in the rack.” At trial the accused placed the time of the fight as “somewhere around 10 o’clock . , . or a little after.” He said the second fight in back of the barracks was “about 10:30 or 11:00, right in there.” However, Keys testified that the scuffle in front of the barracks took place between eleven and twelve o’clock. Allowing for the time lapse between Ford’s entry into the barracks and Graham’s report that he was not in his bed, the finders of fact could conclude that Williams’ estimate of the time he saw Ford was mistaken. They could find that Williams saw Ford after the first fight, not after the second. Reconciliation of the time of the two fights also provides a reasonable explanation for the change in Ford’s clothing, if any. After he left Williams, Ford could have removed his top shirt and departed from the barracks wearing only the skivvy shirt, which Williams also saw. We hold, therefore, that these items of evidence do not east doubt upon the sufficiency of the findings of guilty. We are satisfied the record of trial contains substantial evidence to support the findings of guilty approved by the board of review.
Although the evidence furnishes a logical explanation for Ford’s attire when discovered on the beach, and negates the accused’s contention that Ford was alive and well after the second fight, the accused contends he was prejudiced by “apparently perjured testimony” concerning Ford’s clothing. The charge is repeated in the petition for new trial.
Staff Sergeant Floyd L. Stutts, one of the criminal investigators who worked on the case, was called as a defense witness. His examination was apparently designed to advance the defense theory that Ford met his death by means other than those connected with the accused. Under defense counsel’s questioning, he testified that no wallet was found among Ford’s effects; and that a person, whom the accused said had been standing on a seawall near the place where he and Bauer fought with Ford, could not be located. Stutts also acknowledged he searched for barbiturate drugs3 and found some pills in a pillow case on Ford’s bunk. Stutts’ direct examination continued in material part as follows:
“Q. When you were checking FORD’s personal effects did you find a blue sport shirt?
“A. No, sir, I did not.
“Q. As far as you know the shirt has never been found?
“A. No as far--
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“Q. Did you find a blue shirt in FORD’s personal effects?
“A. No, sir.”
• The accused says Stutts lied when he testified he did not find a blue shirt among Ford’s personal effects. To support this contention, he has submitted an affidavit from Corporal Keys to the effect that he saw Sergeant Stutts and another investigator examine Ford’s wall locker and “pick out of , . [the] locker and check closely a light [578]*578colored, blue, sport shirt.” When the charge was presented to the board of review, the Government alleged the evidence was not newly discovered. In this Court, it submitted an affidavit from Corporal Keys in which he acknowledges that he told defense counsel of Stutts’ examination of the wall locker, either during the accused’s trial or at Bauer’s subsequent court-martial. On oral argument before this Court, appellate defense counsel represented the information was not discovered during this accused’s trial.
Assuming for the purpose of this appeal that the evidence is newly discovered, and assuming without deciding that it sufficiently appears Stutts was not merely mistaken in his testimony, knowledge of the presence of a blue shirt in Ford’s locker would not add “materially to the evidence presented at trial.” United States v Hodges, 14 USCMA 23, 31; 33 CMR 235. The color of Ford’s shirt at the time Williams saw him had no significance to the defense theory that Ford was still alive and well after the second, fight, aside from the time Williams saw Ford. In their brief appellate defense counsel, one of whom represented the accused at trial, admit the time of death “was the very element from which . . . [the accused] could be either found guilty or acquitted.” If the triers of fact concluded that Williams saw Ford between the two fights, and not after the second as contended by the defense, discovery of the shirt in Ford’s locker offered no advantage to the defense theory. If anything, it tended to support the prosecution’s theory that Ford removed the shirt after he saw Williams. On the other hand, if the triers of fact determined that Williams really saw Ford as late as 2:00 a.m. or 3:00 a.m., that fact alone would require acquittal of the murder charge. What was important to the defense theory was the evidence that Ford was alive and well after the Second' fight. The finding of a blue shirt in his locker contributed nothing to that issue. Both the court-martial and the board of review found that Williams was mistaken in his estimate of the time. There is ample evidence to support that finding; and Stutts’ testimony denying he saw a blue shirt in Ford’s locker does not detract from its validity. We conclude that nothing in the claim of perjured testimony justifies reversal of the conviction. See United States v Hodges, supra, at page 31.
From what we have said, it is apparent that, next to the accused, Williams was probably the most important witness for the defense. Williams was called initially as a Government witness to testify to the discovery of Ford’s body. Over trial counsel’s objection that the cross-examination was exceeding the scope of the direct, defense counsel was permitted to question Williams about his meeting with Ford in the barracks washroom between 12:30 a.m. and 3:30 a.m. Defense counsel was also allowed to elicit testimony to the effect that for the past fifteen months Williams “normally” made a “head” call at about 2:00 a.m.; and that previous to the. trial, Williams gave Criminal Investigations Detachment agents a statement in which he fixed the time as between 2:30 a.m. and 3:30 a.m. Williams further testified he had known Ford for about sixteen months and had become “pretty good friends” with him. On redirect examination, trial counsel questioned Williams about his estimate of the time. The most material part of the examination was quoted earlier in this opinion. The court also subjected Williams to some questioning. Later Williams was called as a defense witness. On direct examination he repeated his earlier testimony about seeing Ford in the barracks. In the cross-examination, he said Ford was a “little drunk”; he noticed no marks or bruises on him, and he “couldn’t tell” if Ford’s clothing was wet or sandy. The defense then rested its case. After Agent Thomson was called as a rebuttal Government witness and testified briefly, the Government also rested. Counsel indicated they had nothing further to present and the law officer asked the court whether it desired to have any witness called or recalled. A note was passed [579]*579to him by the court. It reads as follows:
“From:
Rogers testimony—
Ford left on coral at about 2300
Williams testimony—
Last saw Ford in head about 1230-0330
“Therefore:
Suggest further interrogation of Williams to determine:
1. Whether, in fact, it was Ford he saw in head.
2. If so, the time of the meeting more accurately.”
It is reasonably inferable from the record of trial that the note was shown to defense counsel. The law officer’s response to the note was as follows:
“LO: The difference in the testimony — where there are discrepancies in testimony of two witnesses, is something this court will have to,— be resolved by the court. As far as my ruling on this — it would appear that counsel has pretty well exhausted the testimony of each witness. This note will also be marked as an Appellate Exhibit and appended to the record. Are there any questions or witnesses ?
“PRES: No.
“LO: At this time, it appears that all the testimony is in. ... I want you to have the arguments and instructions immediately following the arguments and then the meeting of the court for deliberation. It is not going to be possible to do all this this afternoon. Therefore, I would suggest that we meet as soon as every one can be here in the morning — adjourn until in the morning.”
Before court convened the next morning, the law officer held an out-of-court hearing to consider the instructions. At this hearing, defense counsel referred to the court’s note and the law officer’s comments on it. He argued there was no actual difference between the testimony of Williams and that of the accused. He submitted the following instruction to “clarify the matter”:
“On our last closing, a question, marked as App Ex VII was handed to the LO by one of the members of the court. [T]he question concerned the testimony of two witnesses. My comment to the court was that counsel had apparently exhausted that area of the testimony and that the court must resolve the difference ini the testimony themselves. You are to disregard my remarks that there was a difference in the testimony because there is no difference or conflict between the testimony of these 2 witnesses. If the court member desires that that witness be recalled, he may so inform the court.”
The law officer approved part of the requested instruction. He substituted for the phrase “because there is no difference or conflict between the testimony of these 2 witnesses,” the statement that “[i]t is your prerogative to determine if there is a difference and if so to resolve that in your deliberations” ; and he omitted the last sentence about recall of “that witness.” Defense counsel objected to the proposed modification because it emphasized a “difference of testimony,” which he believed did not exist. However, he did not object to the elimination of the last sentence of the requested instruction; nor did he ask to reopen the defense case for further examination of either the accused or Williams, or that Williams be recalled as a court witness. See Manual for Courts-Martial, United States, 1951, paragraph 149a. When court convened, the law officer referred to the note, and gave the court the modified instruction discussed in the out-of-court hearing. The accused now contends the law officer, in effect, denied a court request to recall Williams, and that the denial was prejudicial to him because of the importance of Williams’ testimony to the theory of defense.
Military practice does not require a court-martial to “content itself with the evidence adduced by the parties.” Manual for Courts-Martial, supra, paragraph 546. After the parties have rested, the court may ask that witnesses other than those who testified be called; and it may require that a witness who testified be recalled for [580]*580•additional examination. The Manual’s 'Guide — Trial Procedure notes that, except as to a witness expected to testify to the accused’s sanity, the law officer “will rule finally as to whether the witness will be called.” Manual for Courts-Martial, supra, Appendix 8a, at page 517. The Government contends the Guide’s statement of the law officer’s authority comports with the discretionary right of a civilian judge to allow or to reject a j'uror’s request to recall a witness or to reread his testimony. See 89 CJS, Trial, § 479; 98 CJS, Witnesses, § 351. Oppositely, the accused suggests the law officer has no discretion in the matter and must accede to a court member’s request to recall a witness. He relies upon the statement in the principal opinion in United States v Parker, 7 USCMA 182, 186, 21 CMR 308, that “a court-martial has the unrestricted right to call for further witnesses, subject only to the law officer’s determination of admissibility.”
The Parker case did not contemplate a conflict between the right of the court-martial to recall a witness and the right of the law officer to rule, in his sound discretion, upon the necessity for further examination of the witness, i.e., the admissibility of the testimony. The question before the Court was whether the board of review was correct in holding the law officer erred in permitting the introduction of additional evidence pursuant to the request of the court-martial, after it had deliberated for a time on the findings. Relying upon Federal and State cases recognizing the power of the trial j'udge to grant or deny, in his discretion, a request for additional evidence which is made by the j'ury after it has begun its deliberations on the merits, this Court reversed the decision of the board of review. The opinion in the case recognizes, rather than denies, coexistence of the right of the court-martial to request recall of a witness and the right of the law officer to rule on the request. The statement relied upon by the accused is specifically qualified, as follows:
“Turning now to civilian sources, it is well-established that a jury may reopen and request portions of the record reread, and it is discretionary with the trial judge as to what parts of the record will be restated. United States v Campbell, 138 F Supp 344 (ND Iowa) (1956); United States v Rosenberg, 195 F2d 583, 598-599 (CA 2d Cir) (1952), cert den 1952, 344 US 838, 73 S Ct 20, 97 L ed 652, rehearing denied 1952, 344 US 889, 73 S Ct 134, 97 L ed 687; Phillips v Carlson, 178 Kan 206, 284 P2d 604; Autry v State, 34 Ala App 225, 38 So 2d 348. Cases dealing with a request for additional evidence after the court has retired to deliberate on the findings are less numerous; however, a majority of the appellate courts which have considered the problem have held that such a request is predicated upon the discretion of the trial judge.
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“In view of the authorities above announced, we are of the opinion that it is discretionary as to whether or not the court will order further evidence to be introduced after it has retired to deliberate on the findings. In reaching this determination we have not overlooked the provision in the procedural guide of the Manual (page 517) that the law officer ‘will rule finally as to whether the witness will be called.’ Nor do we ignore Article 51(6) of the Code that makes interlocutory rulings by the law officer final. In construing these two provisions, together with the procedure authorized in paragraph 546 of the Manual, we hold that a court-martial has the unrestricted right to call for further witnesses, subject only to the law officer’s determination of admissibility.” [United States v Parker, 7 USCMA 182, 185, 186, 21 CMR 308.]
Turning to the court-martial’s note, it is, as the Government contends, questionable whether there was a request to recall Williams, and a definite ruling by the law officer denying the request. But assuming the statement constituted a request to recall Williams, we cannot ignore its content. It was not a request for recall of either Williams or [581]*581the accused for further general examination, but a strictly limited request which specifically stated the area of inquiry and the precise questions to be determined. As so limited, we cannot say the law officer abused his discretion in denying the request on the ground that the proposed points of additional examination had already been covered exhaustively in the previous examinations.
A trial judge is vested with substantial discretion to regulate the order, the manner, and the scope 0f examination of the witnesses. See Manual for Courts-Martial, supra, paragraph 149; United States v Blankenship, 7 USCMA 328, 22 CMR 118. Williams was the first witness for the prosecution and the last witness for the defense. He told and retold the story of his encounter with Ford in the “head.” He estimated and re-estimated the time of this encounter. The court had heard Williams on two separate occasions. It had two separate opportunities to weigh the accuracy of his estimate of the time. What additional purpose could be served by going over the ground once more? Had defense counsel or trial counsel attempted to retrace what Williams had already stated and restated, the law officer could properly require discontinuance of the question. See Fitzgerald v United States, 324 F2d 153 (CA 5th Cir) (1963); People v Gonzales, 217 Advance Cal App 2d 67, 31 West’s Cal Rptr 540 (1963). We see no reason to deprive the law officer of the right to regulate the examination of a witness because the line of impermissible inquiry is pursued by a court member. See United States v Witt, 215 F2d 580, 584 (CA 2d Cir) (1954), cert den 348 US 887, 99 L ed 697, 75 S Ct 207 (1954). We hold, therefore, that assuming the law officer ruled against the recall of Williams, he did not abuse his discretion. See People v Reilly, 49 App Div 218, 63 NYS 18 (1900); People v Gonzales, supra; Fitzgerald v United States, supra.
Appellant next contends the law officer erred in instructing the court-martial as to its right to determine the voluntariness of the pretrial statement of November 18, in which he admitted Ford was “pushed” into the ocean. The Government contends no objection to the admission of the statement for lack of voluntariness was actually interposed in open court. The procedure followed by defense counsel was unusual. He twice told the law officer he had “no objection,” other than those made in an out-of-court hearing on the matter, which, of course, raised no issue for the court-martial’s consideration. See United States v Dicario, 8 USCMA 353, 360, 24 CMR 163. However, he also requested the right to “reserve . . . presentation of evidence on” the matter until the defense case-in-chief. The law officer did not rule on the request. As the case progressed, we think the law officer and counsel for both parties understood an objection was intended and, in fact, was made. We turn, therefore, to the evidence and the instruction.
Three written statements were obtained from the accused. The first was dated November 13 (Prosecution Exhibit 14); the second was obtained on November 14 (Prosecution Exhibit 15); and the third was made by the accused on November 18 (Prosecution Exhibit 13). The first two statements were admitted into evidence without objection by the defense. The failure to object to them was consistent with defense counsel’s opening argument to the court-martial that the defense wanted it to “receive all the evidence that is available” and the defense was “not going to object to the government’s presentation of evidence,” but would do “everything” to assist the prosecution in that endeavor because the accused did not kill Ford. In the argument on this appeal, however, it is implied that some of the circumstances surrounding the November 14 statement tainted the statement of November 18.
Investigator Thomson testified that on November 18, while at the Naval Intelligence Office at Naha, he was informed by another agent that the accused “wanted to tell . . . [him] [582]*582something-.” He went to the room in which the accused was. As he had several times in the past, he informed the accused of his rights under Article 31, and advised him he was a suspect in the investigation into Ford’s death. The accused appeared “composed.” Without threat, coercion, or promise of reward of immunity or benefit, the accused made an oral statement. Then he wrote out one by hand. Before thé written statement was admitted into evidence, defense counsel cross-examined Thomson. The examination was directed at the contents of the statement, rather than the circumstances of it execution. So far as Thomson’s testimony is concerned, therefore, the voluntariness of the accused’s November 18 statement was fully established at the time it was offered and admitted into evidence. Later, however, the accused testified, and Thomson was recalled as a rebuttal prosecution witness. Their testimony contains additional references to the various statements.
The accused was first interrogated in the office of his own Company on the afternoon of November 13. He submitted a written statement in which he said he last saw Ford at 10:30 p.m. on November 12. It was admitted, without ■ defense objection, as a prior inconsistent statement. Little was said about the execution of this statement. Some of Thomson’s testimony and preliminary recitals in the statement itself indicate it was entirely voluntary. In any event, there is nothing here that relates to, or affects, the execution of the November 18 statement.
On November 14, the accused made another statement. Agent Thomson testified the accused sought him. out, and asked to talk to him away from the office. Thomson obtained a car, and drove outside the camp. While Thomson was still driving the car, the ac-; cused told him to stop; he had “ ‘something’ ” to tell him and did not want him to “ ‘have an accident.’ ” Thomson complied. The accused then said, “ T think I’m the man who killed Ford.’ ” Advised of his rights under Article 31 and asked if he still wanted’ to talk, the accused said he “would.” He told Thomson he had a second fight with Ford and left him on the beach in an unconscious state. Thomson and the accused returned to the office to enable the accused to make a written statement. At the office, the accused said he “would like to have counsel.” Asked if he desired any particular counsel, the accused replied he wanted to talk to Lieutenant May, the Regimental Legal Officer. Thomson called Sergeant Bogle, another investigator, to inform him of the accused’s statement and request for counsel. A few minutes later, Bogle appeared with either the Battalion or Regimental Commander and the Battalion Legal Officer. The latter informed Thomson that Lieutenant May was “out for the evening.” The accused was then asked if he wanted to speak to the Battalion Legal Officer, who was available. The accused said he just wanted to talk to Lieutenant May. Informed of the Lieutenant’s absence and asked if he “still want[ed] to make the statement,” he said “ ‘yes.’ ” Thomson again advised him of his rights under Article 31. He then asked questions, and reduced the accused’s answers to writing. According to Thomson, the accused conferred with Lieutenant May on November 15, and did not thereafter indicate any desire to see Lieutenant May or “any other officer as counsel.”
The accused’s testimony about the November 14 statement is very meager. Its substance is that Thomson did not accurately record all he told him about the second fight; as he said: “I did make” the statement, but not “in those words,” and I “tried to correct some of the mistakes.” He did not deny he sought out Thomson to tell him he thought he was the one who killed Ford; nor did he deny he was advised of his rights under Article 31. His only reference to his request to talk to Lieutenant May is as follows:
“Q. How many CID people questioned you before this statement was written for you?
“A. About four or five, sir. Four people — five people, I’m not sure.
“Q. And would you tell the court how you were being questioned?
[583]*583“A. Just that it was — they didn’t ask me, they just — again I had asked for legal counsel, anyway, because I had been in a fight with the man and they asked if—
“Q. Why did you ask for legal counsel?
“A. Well, sir, I had been in a fight with the man and it was down there on the beach and all I knew about it was that they had found FORD’s body and he was supposed to have been drown, sir.”
The accused’s testimony does not contradict or impugn Thomson’s representation that the accused knowingly and willingly first made the oral statement and then, with full knowledge of the absence of requested counsel, willingly rejected the proffer of available counsel and proceeded to dictate and sign the written statement. It is not surprising, therefore, that the written statement was admitted into evidence without defense objection. United States v Melville, 8 USCMA 597, 25 CMR 101. There is nothing in the evidence to show the accused was denied the opportunity to confer with Lieutenant May or any other counsel in regard to the November 14 statement; and there is no evidence to indicate that any of the circumstances of the execution of this statement tainted the statement of November 18. See United States v Askew, 14 USCMA 257, 84 CMR 87; United States v Cad-man, 10 USCMA 222, 27 CMR 296; Hawkins v United States, 288 F2d 122, 125 (CA DC Cir) (1960).
We turn now to the November 18 statement. With his consent, the accused was taken to the Naha Office of Naval Intelligence to take a lie detector test. He was asked to make a statement. According to him, he said: “[Y]es, I’ll make a statement, if you’ll investigate all those marks” on Ford. He asked Thomson to “promise me that he would do this and I would make a statement.” Thomson said he would. “[H]e started asking questions” and the accused “answered some of them.” The accused wrote the final statement in his own handwriting and signed it. He then asked Thomson again if he would investigate Ford’s head wounds, and was assured the investigation would be made. In his rebuttal examination, Thomson admitted he discussed Ford’s head wounds with the accused. The accused denied he had hit Ford on the head and said he “would like to know who done it.” Thomson further testified it was “possible” he might have had this discussion with the accused on November 18th, but he thought it was either November 16th or 17th. He searched the beach for anything that could have been used to inflict the head wounds on Ford, but found nothing. He denied the accused told him he would sign the statement “if . . . [he] would promise to further investigate.”
Only one circumstance in the execution of the November 18th statement bears even remotely on its voluntariness; that is the purported promise to continue the investigation. A promise to discontinue an investigation and “ ‘close out the case,’ ” which induces the accused to make an incriminating statement is improper; and the statment so obtained cannot be admitted in evidence against him. A promise of that kind is “in the nature of a final cessation of any prosecution in return” for the statement. United States v Dal-rymple, 14 USCMA 307, 310, 34 CMR 87. If made, the promise here is exactly the opposite. It required Thomson to continue the investigation. Obviously, if the investigation produced nothing favorable to the accused, he would still be a suspect. In United States v Askew, supra, at page 262, we suggested that a “statement by police officers that they intended to check out an ordinary investigative lead,” which does not refer to compulsory questioning of persons closely related to the accused, would not constitute an unlawful influence or inducement affecting the accused’s freedom to speak or remain silent, within the meaning of Article 31 of the Uniform Code. Cf. United States v Parham, 14 USCMA 161, 33 CMR 373. The alleged promise [584]*584in this case appears to be no more than a generalized statement to continue the investigation and check out other leads. Certainly, such a promise is proper; and cannot be compared to the “illicit bargain” to induce a statement of an incriminatory nature which the Court condemned in United States v Askew, supra, at page 263. Nevertheless, assuming the promise was of a kind that could be said to affect the voluntariness of the November 18th statement, the issue was fully presented to the court-martial for its consideration.
The law officer instructed the court-martial that his ruling on the November 18th statement merely admitted it into evidence; each member had to decide for himself whether the statement was voluntary. He also instructed that if the statement resulted from a promise which was the “effective cause of obtaining” it, there was unlawful influence or inducement, but a “promise of advantage which was of a trivial or insubstantial nature in the light of the known consequences of making the statement” did not “[o]rdinarily” require rejection of the statement as involuntary.
For the purposes of this appeal we may accept as principle, rather than dictum, that “ ‘any . . . promises, however slight,’ ” which induce the making of an incriminatory statement render it involuntary. 3 Russell on Crimes, 6th ed, page 478, cited with approval in Bram v United States, 168 US 632, 42 L ed 568, 573, 18 S Ct 183, 187 (1897). See also Shotwell Mfg. Co. v United States, 371 US 341, 9 L ed 2d 357, 83 S Ct 448 (1963); United States v Askew, supra. On that basis, an instruction to the effect that a trivial or insubstantial promise is not sufficient to brand a statement as involuntary would be error. The instruction here, of course, is not so phrased. On the contrary, it clearly implies that a trivial or insubstantial promise can invalidate a pretrial statement. True, the strength of implication is somewhat lessened by the qualifying word “ordinarily,” but a reading of the whole instruction leaves clear that, whether substantial or trivial, the court had to consider if the alleged promise to continue the investigation was the “effective cause” of the November 18th statement, and that it had to “determine beyond a reasonable doubt that . . . [the statement] was voluntary.” We are satisfied there is no fair risk that the court-martial drew a “harmful conclusion” from the law officer’s use of the word “ordinarily.” United States v Ball, 8 USCMA 25, 32, 23 CMR 249.
The decision of the board of review as to the findings of guilty and the sentence and the board of review’s denial of the petition for new trial are affirmed. The separate petition for a new trial filed in this Court is denied.
Judge Kilday concurs.