Opinion of the Court
Paul W. BROSMAN, Judge:
The accused, Washington, was tried by a general court-martial convened at Bamberg, Germany, under a charge of premeditated murder, in violation of the Uniform Code of Military Justice, [117]*117Article 118, 50 USC §712. He was found guilty as charged and sentenced to be put to death. The convening authority approved, and a board of review in the office of The Judge Advocate General, United States Army, affirmed the findings. However, this latter agency, on July 20,1953, affirmed a sentence which provided for imprisonment at hard labor for life instead of the death penalty.
Washington was informed of the decision of the board of review on August 10, 1953, and signed an acknowledgment of receipt. On the same day he was served with a copy of a certificate which had been filed in this Court, pursuant to the provisions of Article 67(6) (2), Uniform Code of Military Justice, 50 USC § 654. By means of his certificate, The Judge Advocate General sought our determination of the correctness of the action taken by the board of review with respect to the sentence. A copy of the certificate was also served on appellate defense counsel, who had represented the accused before the board, and who, on August 4, 1953, by direction of The Judge Advocate General had been designated by the Chief of the Defense Appellate Division in the former’s office to represent the accused before this Court. Briefs from both appellate defense and Government counsel were filed on the issues certified. However, on September 18, 1953 — and while the' matter was pending before us — defense counsel moved for a stay of proceedings in the cause, “except as to the certified questions,” until such time as a final determination of accused’s mental capacity to file a petition for grant of review had been made. The effect of the accused’s present mental condition on the course of appellate proceedings is the problem with which we must deal in this case.
II
Prior to his trial by court-martial, the accused was examined by a sanity board. The members of this body concluded that he had been able to distinguish right from wrong, and to adhere to the right, at the time of the crime, and that he possessed capacity to cooperate in his own defense. Doubtless because of this report, defense counsel did not choose to raise the question of sanity at the nisi prius level — either as to total or partial responsibility for the offense, or as to mental capacity to stand trial. It is to be noted, however, that the record of trial contains distinct indications that the act of the accused in killing a fellow soldier did not arise out of a commonplace framework of motivation.
It appears that the homicide resulted from Washington’s belief that his victim had been one of a group which he fancied had been applying derogatory epithets to him. There are more than intimations that these feelings were quite without factual foundation. Other substantial evidence of the accused’s mentally and emotionally disturbed state at the time of the killing is also present. In fact, the showing of such a disturbance served to persuade the board of review to substitute for the death sentence one running to life imprisonment only. However, its members made no specific determination in the matter of the accused’s sanity, since the question had not been raised at the trial, or during the proceedings before the board itself.
At about the time the case was pending on appeal before the board — but without knowledge on the part of appellate defense counsel — the accused began the manifestation of pronounced symptoms of mental disease. On July 27, 1953 — only seven days after publication of the board’s decision — a psychiatric examiner at the Disciplinary Barracks at Fort Leavenworth, Kansas, found that the accused’s content of thinking was disorganized, and that he appeared to be approaching a psychotic breakdown. In August it was decided medically that Washington was “suffering from an acute psychotic reaction and he was transferred to Fitzsimons Army Hospital for further observation and treatment.” A sanity board convened at the latter facility reported in November 1953 that the accused was then characterized by a “schizophrenic reaction, paranoid type, chronic, severe, manifested by a flattening and inappropriateness of affect, ideas of reference,[118]*118negativism and marked impairment of insight and judgment.” This board recommended retention of the prisoner for further treatment, noted that the issue of sanity had not been raised at the trial, but also expressed the view that the accused was mentally responsible at the time of the offense and had possessed capacity to stand trial.
Still another medical board convened at Fitzsimons reported in April 1954 on the accused’s mental status. The same diagnosis was made, and his condition was recorded as “unimproved.” This further board recommended that, “In view of this prisoner’s psychosis, the remainder of the sentence to confinement be remitted and that he be transferred to a State Hospital.” In this connection it was commented “That this prisoner is potentially dangerous to himself and others and cannot be released to his own care or to the custody of his family,” and “That in all likelihood, three (3) attendants will be required to accompany this prisoner to his destination at time of disposition from this hospital.” This board appears to have concurred in the findings of the earlier one to the effect that the accused had possessed mental responsibility and capacity at the time of the commission of the offense and at that of trial respectively.
Ill
It has been suggested forcefully that insanity on the part of an accused person arising during the appellate process ousts the jurisdiction of this Court and of other tribunals to conclude review. This contention we must reject. To be sure, there can be found no explicit warrant for our position in the language of either the Code or the current Manual for Courts-Martial. Neither, however, can there be discerned sanction for the opposite interpretation. The explanation for this legislative silence must lie in a simple failure of the draftsmen of the Code and the Manual to consider the problem.
In the Uniform Code of Military Justice, sanity is mentioned directly only with respect to trial proceedings, and not at all in connection with post-trial review. See Articles 51 and 52, 50 USC §§ 626 and 627. Paragraph 121 of the 1951 Manual is entitled “Inquiry before Trial”- — and therefore, on its face, would appear to be inapplicable to mental disease first appearing during the appellate process, and not present either at the time of the crime or that of the trial. However, this same Manual division is referenced in paragraph 124, which is concerned with the post-trial action of the convening, or of higher, authority. This mention we construe to be directed to insuring that, in a proper case, the convening authority will direct the convention of a medical board of inquiry — as provided in paragraph 121 — for the purpose of answering three questions concerning the accused’s mental condition. The first two of these have to do with mental responsibility for the crime; the third concerns mental capacity and is phrased as follows: “Does the accused possess sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense (120c) ?” The cross-reference to paragraph 120c is especially significant, for the reason that the latter section of the Manual is headed “Mental capacity at time of trial.” (Emphasis supplied.)
It has been recognized judicially that insanity which arises after trial may properly be dealt with in a manner different from that followed in the case of mental disease which precedes verdict and sentence. Solesbee v. Balkcom, 339 US 9, 94 L ed 604, 70 S Ct 457. At the same time, it is clear that the common law prohibits the execution of the death sentence on an insane person — ■ and virtually every Anglo-American jurisdiction subscribes to this view. See Nobles v. State of Georgia, 168 US 398, 42 L ed 515, 18 S Ct 87; Solesbee v. Balkcom, supra. Indeed, an outright authorization to execute in such a case might well infringe due process. Cf. Phyle v. Duffy, 334 US 431, 92 L ed 1494, 68 S Ct 1131; Solesbee v. Balkcom, supra.
In this connection our attention has [119]*119been directed to Article 71 of the Code, 50 USC § 658, which purportedly prohibits the suspension of a death sentence by the President. It has been suggested that this provision signifies that the President is without power to suspend the execution of a death sentence until such time as an accused, who has become insane, recovers his reason. From this premise it is argued that the lot of the present accused would indeed be unhappy if this Court were to complete appellate review — and that he might then be executed willy-nilly, for the reason that the President will not be held to possess authority to suspend execution of the sentence for the purpose of awaiting a return to sanity.
This line of approach seems to us to be of little value. The President, in such a dilemma, would often, we assume, commute to life imprisonment— as undeniably he has the power to do. In any event, we do not accept the notion that Article 71 is in any way relevant to a determination of the problem with which we are faced in the present case. The prohibition against the suspension of a death sentence by the President was, we entertain no doubt, directed toward a stay conditioned, say, on the accused’s good behavior, rehabilitation, or the like — rather than to one designed to effectuate the long-entrenched legal mandate that an insane prisoner shall not be put to death. Moreover, if an effort were made to hang an insane accused person — regardless of the time of origin of the mental disorder — we would suppose that a motion for appropriate relief would lie to this Court. In short, we are convinced that we were entrusted by Congress with authority to see to it that a proper inquiry is made following any reasonable suggestion of insanity — and certainly before a convict may be put to death. Thus, Article 71 has nothing to do with the problem at hand.
Are there additional reasons — other rights of an accused — which require a holding that this Court is wanting in jurisdiction to complete appellate review? As a matter of fact, in many instances such a holding would redound to the accused’s harm. Were we to assume jurisdiction and review the record, is it not possible that we might discover error which would necessitate a rehearing or the dismissal of charges? Moreover, an indefinite continuance of an accused’s uncertainty concerning the disposition of his ease might well hinder his return to reason.
Pretermitting these possibilities, however, we can perceive no substantial right of an accused, such as Washington, which could not be accorded adequate protection if appellate processes were permitted to continue' — with perhaps the provision of special safeguards. For the most part appellate review is limited to the contents of the record, and these are wholly beyond the accused’s control once the trial has terminated. Of course, supplementary information may permissibly be furnished by him to a limited extent. Thus, if his insanity preceded action by the convening authority, the accused’s lawyers might properly seek to bring out new matter addressed to the discretion of the latter. See United States v. Massey, 5 USCMA 514, 18 CMR 138; United States v. Pratts-Luciano [CM 370895], 15 CMR 481.
There is also the possibility of a petition for new trial — which relies on facts not disclosed at the eourt-martial hearing. If, however, the application is predicated on information possessed-by the accused at the time of trial, almost certainly he will encounter the objection ■ — a virtually insuperable one — that his petition is barred by want of -due diligence. Manual, paragraph 109d(2); United States v. Blau, 5 USCMA 232, 17 CMR 232. And, if this information was not within the accused’s ken prior to trial, it will not as a usual thing be discovered by him personally thereafter —at least if, as here, he has been placed in confinement. Consequently, .we are sure that, realistically considered, his interest in the development of matters not raised at the trial can be the subject of proper protection by means of the assignment — as soon as feasible after recognition of insanity — of compe[120]*120tent counsel to effect an on-the-spot post-trial investigation in the accused’s behalf. Moreover, we should incline to think that — since matters of fact, rather than those of law, are the chief concern in a petition for new trial — an accused person is entitled to a reasonable time within which to submit such a petition to the Judge Advocate General of the appropriate service after the recovery of his mental health. Cf. State v. Howard, 223 Ind 694, 64 NE2d 25; Cook v. State, 231 Ind 695, 97 NE2d 625.
Concerning the presentation of legal arguments, it can be stated — again with realism — that, in light of the experience of this and other courts, but few sane accused persons desire to argue their own cases on appeal. Too, and more important, practically no convicted accused — be he sane or the reverse — is able to make any sort of helpful contribution to the preparation of the legal contentions to be relied on during an appeal. Thus — unlike that applicable during the trial phase — there is no requirement that an accused be present during the argument of his appeal.1
Perhaps his most useful function in connection with an appellate hearing lies in the selection of counsel to represent him. However — with all deference to the right of choice by an accused person —we entertain no slightest doubt that his real interests — as distinguished from empty theoretical ones — may be preserved fully through the appointment by this Court of special counsel to represent him before it. And the same is generally true of proceedings at the board of review level, in case the insanity preceded the rendering of that tribunal’s opinion. To dispel all doubt, we would suppose that, in this Court, the assigned special counsel should be a distinguished civilian attorney, a member of its Bar, who would cooperate with the accused’s military appellate defense counsel.
It is unnecessary at this time to proceed further in detailing appropriate procedures which would serve to safeguard the substantial appellate rights of an insane accused. Honestly and realistically examined, it is submitted that the protection received' by such a person under these proposals is likely to receive substantially more effective representation than that enjoyed by most sane appellants. Moreover, if appellate review is to be completed in the instance of an insane accused, and if he becomes a sentenced prisoner, he will suffer in no way with respect to confinement. Federal legislation clearly provides that a mentally disordered prisoner held by the Bureau of Prisons will be transferred to a place where appropriate psychiatric treatment is available. 18 USC §§ 4241-2. The Armed Forces have similar rules. Additionally, it may be pointed out that a convicted accused is credited with service of confinement from the date the sentence is adjudged. Uniform Code, Article 57(6), 50 USC § 638.
In passing, we should note, too, that substantial injustices and inconveniences might well result from a holding that we are powerless to complete the review of a case involving a convicted accused who has become insane. For instance, his conviction could then never become final within the meaning of Article 44(6) of the Uniform Code, 50 USC § 619. Thus, while forfeitures might be deducted from his pay, in accordance with the approved sentence of the court-martial, the accused — or, more realistically within the present context, his relatives — would seem entitled ultimately to payment of the amounts forfeited, provided the accused were discharged administratively while insane, or died before recovering mental health. Cf. Manual for Courts-Martial, [121]*121United States, 1951, U. S. Army 1954 Cumulative Pocket Part, Appendix 15e, page 265; 33 Comp Gen 195. This enrichment of one who has been found guilty by a court-martial is hardly desirable.2 Moreover, so long as appellate review is uncompleted, the accused will remain an unsentenced prisoner. In particular eases this may have effect in determining the place in which he will be held in custody, or on his opportunities for clemency consideration.
IV
Turning more directly to the civilian authorities in point, we discover that they, too, support the jurisdiction of this Court. Of course, we need not concern ourselves with the innumerable cases which reiterate the view that an accused shall not be tried, sentenced, or put to death while in an insane condition. Our opinion is in complete accord with these precedents — but they simply do not bear in any direct way on the question of whether appellate processes shall be permitted to continue during an accused’s insanity. Also, probably immaterial here is the general statement, often seen, that an insane person may not “after judgment, undergo punishment.” Presumably this pronouncement is also directed to the proposition that the death sentence shall not be executed in the case of an insane convict. If such a dictum were intended to embrace more than this, then it would continue to be of no weight here — for the reason that it would conflict with specific legislation opposed thereto in effect.
In this connection, we advert to 18 USC §§ 4241-8, by which special provision is made in Federal penal and correctional institutions for prisoners who are diagnosed as mental cases. Under that enactment, a board is required to examine any inmate alleged to be insane, of unsound mind, or otherwise defective mentally. If the board finds the allegation of deficiency to be correct, the prisoner is transferred to a “hospital for defective delinquents or to any other institution authorized by law to receive insane persons charged with or convicted of offenses against the United States.” However, it does not appear that this transfer serves to interrupt the sentence in any degree — for, according to the statute’s § 4241, the prisoner continues to remain within the control of the special institution until he shall “be restored to sanity or health or until the maximum sentence, without deduction for good time or commutation of sentence, shall have been served.” Compare Uniform Code, Article 57(6). In short, and despite his insanity, the accused in such a situation is deemed to be engaged in serving his sentence— albeit in a penal locale somewhat different from that contemplated originally. At the expiration of the sentence, the accused is disposed of through other procedures. See 18 USC §§ 4243, 4247-8. Rather clearly the assumption of this legislation is that the accused is held under the penal authority of the original judgment, and is undergoing punishment for his crime — and there is no sort of presupposition that the judgment against him by reason of his conviction is suspended because of his insanity or other mental defect. It follows that the validity of this judgment must be determined — for the reason that an accused should not be held under authority of a decree which may possibly be erroneous.
Of course, the original conviction and sentence may become the subject of challenge because of the possibility that the accused was in fact mentally incom[122]*122petent when the offense was committed, although the incompetency was undisclosed at the time of trial. A method for dealing with this contingency is furnished by 18 USC § 4245. And it may be significant that — throughout the entire course of this detailed legislation, which deals generally with mental defection — no provision whatever is to be found covering a situation in which mental incompetency intervened during the course of an accused’s appeal, but had not been present at the time of trial. Presumably in that circumstance it was intended that the judgment remain intact.
Moving to the civilian case law, we find substantial support for the position that insanity does not deprive this Court of jurisdiction to complete appellate processes. In Johnson v. State, 98 Ark 131, 133 SW 596, the Supreme Court of Ai-kansas considered the appeal of an accused person who had been convicted of murder and sentenced to death. His defense of insanity had been rejected by the jury which returned the murder verdict. However, subsequent to the judgment of conviction, defense counsel — presumably the court-appointed attorneys who had represented him at the trial — informally suggested that, since his conviction, the defendant had been pronounced insane by a county physician and removed from his place of confinement to the county hospital. The truth of this statement was conceded by the Attorney General. The court commented as follows: “That, however, does not affect the adjudication of this court affirming the judgment of the trial court where no error is found in the record of the trial. . . . There is no provision in the statute for suspending proceedings in this court on account of appellant’s insanity, though ample protection is provided in that respect in the lower court.” It was emphasized that the accused was in no wise precluded from presenting, by writ of error coram nobis or otherwise, the issue of his insanity at the time of trial. It is clear, however, that the Arkansas Supreme Court deemed his post-trial insanity to be irrelevant to appellate review, since it rejected his assignment of trial error and affirmed the judgment of the lower court.
In Green v. State, 88 Tenn 614, 14 SW 430, and 88 Tenn 634, 14 SW 489, the Tennessee Supreme Court also had before it the appeal of a murder defendant. Green — having lost his struggle for a young lady’s affections — had slain her and thereafter fired a bullet into his own head. His defense of insanity had not been accepted by the jury. However, the supreme court commented that certain of the testimony introduced at the trial and transcribed into the record on appeal, “together with the very unnatural conduct of the prisoner in our presence pending his trial here,” had caused its members of their own motion to investigate his current mental condition. The investigation had resulted in a conclusion that the accused was demented. The court, therefore, recommended to the Governor that Green’s sentence to death be commuted to life imprisonment. However, the judgment stood affirmed, and the court appears to have entertained no thought that it wanted jurisdiction to review the record of trial, although the accused was insane when review began.
The Louisiana Supreme Court had before it in State v. Brodes, 156 La 428, 100 So 610, the appeal of a defendant convicted of murder and sentenced to be hanged. The court recognized the presence of three possibilities: (1) that the accused had been insane at the time of trial; (2) that he had been sane at the time of trial, but thereafter had become insane; (3) that he had been sane at both times. The case was remanded for a determination by the lower court with respect to the category into which the case properly fell — with the following instruction: “If it should be fivund that he was not insane at the time of trial, but became so afterwards, the conviction should stand, and he should be committed to one of the asylums for the insane, to remain until his reason is restored, when the penalty of the law may be inflicted, all as the statutes provide.” (Emphasis supplied.) It is clear that this instruction is irreconcilable with any premise that jurisdiction to review a case is lacking [123]*123if the accused has become insane after trial, but before appellate review is completed.
The appellant in People v. Schmitt, 106 Cal 48, 39 Pac 204, had been convicted of first degree murder, but sentenced to life imprisonment only. The brief of the defense lawyer commented that the appellant’s mental state was “ ‘daily nearing the hopeless shores of idiocy,’ ” and that he was lying “ ‘in the county jail of Sutter county, under sentence, a gibbering and demented idiot.’ ” The California Supreme Court noted that, although this be so, the evidence would not suffice to reverse a judgment otherwise legal. Accordingly, the judgment was affirmed — although the court commented that the accused’s conviction and sentence did not exclude him from the state insane asylum, and suggested that executive clemency might also intervene. Nonetheless, its action in affirming the conviction is squarely opposed to any assumption that insanity stays the operation of appellate processes.
In Steen v. State, 82 Okla Cr 141, 167 P2d 375, the Oklahoma Criminal Court of Appeals dealt with the appeal of a defendant who, after conviction of murder, had been sentenced to death. The court referred to the provisions of Oklahoma law requiring investigation into the sanity of one under such a sentence, and recommended that the Governor appoint alienists to observe the defendant prior to his electrocution. However — and significantly — no slightest suggestion was made that the accused’s insanity might conceivably affect the jurisdiction of the court to review his record of trial. Accordingly — no error having been found in the record— the judgment of the lower court was affirmed.
In Diamond v. State, 195 Ind 285, 144 NE 250, and Ex parte Chesser, 93 Fla 291, 111 So 720, appellate tribunals were confronted with cases involving the possibility that the accused had become insane after conviction and sentence. In neither instance, however, did the Court so much as intimate that the power to conduct appellate review might have been destroyed by the accused’s insanity. Thus, there were left intact the prior opinions by the respective courts by which the convictions and death sentences of Diamond and Chesser had been affirmed.
To be sure, certain Texas tribunals have determined that appellate — like trial — proceedings are stayed by the insanity of the defendant. See e.g., Williams v. State, 135 Tex Cr 585, 124 SW2d 990; Jones v. State, 137 Tex Cr 150, 128 SW2d 815. However, these decisions appear to have been predicated on the construction of a Texas statute. In the absence of some like directive in military law — to which our attention has not been directed — they are no more than mildly apposite here. Consequently, as we interpret the precedents, an accused’s insanity constitutes no bar to the review of his ease.
V
Although there must be held to be jurisdiction to review the record of trial of an insane accused person — like the one before us now — we are sure that an appellate court possesses the broadest sort of discretion in its exercise. In the administration of that discretion, we have, in fact, heretofore granted extensive continuances in this case. In truth, we have thought that it seemed preferable to face, if necessary, the charge of having overprotected the insane accused here than to meet the converse accusation.
This preference has posed a dilemma for the writer of the principal opinion. After all, Washington is indisputably psychotic at the present time — the severity of his disorder being indicated, inter alia, by the final sanity board’s significant remark respecting the need for three attendants in the event of his transfer from Fitzsimons Army Hospital. It is clear that a psychosis qualifies fully as a “mental defect, disease, or derangement,” within the meaning of the Manual’s treatment of mental responsibility. United States v. Smith, 5 USCMA 314, 17 CMR 314. The delusions of persecution on the part of the accused reflected in the record appear to be typical, indeed identifying, symp[124]*124toms of the paranoia from which con-cededly he now suffers. Additionally, testimony at the trial to the effect that Washington “kept to himself,” “didn’t say nothing to nobody,” “just nodded his head,” and the like, distinctly suggests the existence of that withdrawal which is symptomatic of the schizophrenia under which all medical witnesses believe him to be laboring now.
Perhaps — indeed probably, as the several medical boards may have reasoned — the accused’s current condition may reduce to no more than an incisive response to confinement, and thus was not present either at the time of the offense or that of trial. However, we do not possess fact-finding authority to pass on this issue in the light of all of the evidence now found in the record of trial. United States v. Smith, supra. This Court is simply not empowered to consider the various factual hypotheses bearing on whether the accused was either totally or partially irresponsible, or whether he was incapable of standing trial.
However, the board of review does possess authority to evaluate the facts —and in this connection to consider evidence presented after, as well as before, completion of the trial. United States v. Burns, 2 USCMA 400, 9 CMR 30. In the Burns case, indeed, we pointed out that in military law “insanity is given a preferred rating,” and held that a board of review might properly consider post-trial evidence concerning the accused’s mental status in the course of effecting its review of the case. Judge Latimer, writing there for a unanimous Court, said:
. . If the issue has been fully litigated at the trial level, there is no requirement that the board upset the holding or launch into an independent investigation. However, there is no good reason to refuse to evaluate the evidence which has been procured. In this instance the board of review should have weighed the medical reports acquired after the trial along with the other evidence found in the record.”
In the case at bar, a large amount of the material which might be regarded as significant in its bearing on the accused’s mental condition at the time of the trial, and of the offense, has at no time been considered either by the court-martial or the board. Of course, this situation is not to be attributed to any sort of error or omission on the part of either — but was wholly due to the fact that the critical evidence was not in existence at the time of their separate actions. This, it should be observed, will not infrequently be found to be the case where mental disease is involved. Of course, all psychiatrists will agree that a diagnosis of a subject’s mental condition at time A might have been materially different had the examiner known then of the same subject’s actions at a later time designated as B. When all is said and done, it would simply be untrue to the spirit of our decision in the Burns case, supra, to brush aside without more post-trial information which seems to possess a high degree of relevance to Washington’s mental responsibility and capacity at the time of the offense and the trial respectively.
To be sure, medical boards have made certain findings in this case. However, such a medical body is not a tribunal prescribed by the Uniform Code, and its members are physicians whose duties do not require that degree of familiarity with the legal criteria of responsibility demanded of a law officer, a staff judge advocate, or the member of a board of review. This is said in no slightest disrespect to the profession of' medicine, but rather in simple recognition of the fact that, as men of science, they do not purport to practice law. Moreover, substantial clarification of the rules of military law bearing on mental responsibility has been accomplished since the determinations of the medical boards with which we are concerned here. See, e.g., United States v. Smith, supra; United States v. Williams, 5 USCMA 197, 17 CMR 197; United States v. Kunak, 5 USCMA 346, 17 CMR 346.
In a world of less than perfection occasions are not infrequent in which one must choose between alternatives — neither of which appears to be wholly satis[125]*125factory. In view of the inflexible positions of my brothers as reflected in their separate opinions, I am forced to choose between reviewing the Washington case as it now stands, on the one hand — without, be it noted, the benefit of action by a board of review based on all presently available evidence3 — and, on the other, striking it from our docket and remanding to The Judge Advocate General without completion of appellate review. Given this choice, I must elect, in my discretion, to refuse review. Far better, I say, to follow this latter course —far less subject to misunderstanding and, indeed, to the possibility of serious injustice.
VI
What, then, is the posture of the Court, as reflected in the three opinions in the case at bar? The Chief Judge and the author of the present opinion are in complete agreement, it appears, on the question of whether appellate review may be completed under the circumstances of this case. We entertain no slightest doubt that power exists, and that, in our discretion, we may proceed with the appellate process in the cause before us. This we conceive to be the law of Washington’s case, albeit Judge Latimer holds to the contrary view.
The Chief Judge, however, would complete review instanter, whereas the present writer — for the reasons suggested in preceding paragraphs — is unwilling to do so. Thus, there is no majority of this Court which favors remanding the case to the board of review where findings — by a judicial tribunal with power to determine facts —would be possible with respect to the accused’s mental responsibility and his mental capacity when trial was held. There is to be found, however, a majority whose members — although for widely divergent reasons — decline now to complete review of the case of this insane accused. Therefore, the present cause must be ordered stricken from the docket of this Court. This is hardly the disposition the author of the principal opinion would have chosen. It is necessary, however, that two members of this Court join in a single action if its efforts are to come to more than an exercise in legal rhetoric — and the course selected is preferable to its competitor. No further proceedings will be undertaken here until the accused, Washington, regains his sanity.
The record of trial is remanded to The Judge Advocate General, United States Army.