(concurring in part, dissenting in part) :
I agree that petitioner Jacobs’ plea of double jeopardy must be sustained. Further, I agree that there is basis in this record for an affirmance through proper action by proper authority of the sentence that was accorded petitioner Padilla at the first trial. If it were not for the fact that the majority embodies in its opinion a new and, I think, possibly dangerous ' concept, I would not feel called upon to make, my individual position clear.
The majority reasoning, as to Padilla, is as follows: (1) The first court which tried Padilla had jurisdiction to do so and arrived at legal and valid findings and sentence; (2) The convening authority erred in holding that this court had no jurisdiction and in ordering a second trial; (3) The convening authority did not, in fact, purport to order a rehearing; (4) The second trial was not held as a rehearing; (5) Despite (3) and (4) the second trial may be treated as a rehearing; (6) Validity may be given to the findings as to Padilla at the second trial; and (7) So much of the sentence resulting from the second trial as does not exceed that given at the first trial may be affirmed, presumably, by an army board of review. The crucial point in this chain of reasoning lies in step five, and is apparent from the following sentence of the majority opinion: “Whatever may have been its [the second trial’s] character, and whether with or without legal justification, the convening authority did in fact direct a further trial in this case — and in fact a second nisi prius hearing was held.” [Emphasis supplied] Thereafter, the majority relies upon inapplicable civilian precedents for the establishment of a non-existent line between “power” and “duty” in order to give practical validity to a trial for which there is no legal support. After demonstrating quite clearly the legal impossibility of the result achieved, the. majority disregards its own reasoning in order to avoid an imaginary dilemma and reach a desired result. While practical expediency may justify disregard of principles in other fields, such a doctrine has no place here. I shall point out what I conceive to be the error into which the majority has fallen and then demonstrate the dangers which may possibly follow.
First, I trust that no one reading the majority opinion can doubt the solution to the basic issue in this case. It is quite clear, from the provisions of the Code and the Manual and from the legislative history of the Code — all of which are cited by the. majority — that *614there is a legal and practical difference between a “rehearing” ordered for procedural error, and “another trial” ordered for jurisdictional defect in the original proceedings. Further, it is equally as clear — and again admitted by the majority — that the second trial here was correctly recognized by all to be a new and independent proceeding, not a rehearing of the original cause. If there is, legally, an “independent proceeding” as differentiated from a rehearing, and if the second trial in this case was such a proceeding, then, the convening authority having admittedly erred in ordering the second trial, the court at that trial had no jurisdiction to proceed and no effect can be given to the findings and sentence resulting therefrom.
I quite agree that legal effect can properly be given to the result of a rehearing ordered for fancied but nonexistent procedural error. But this only because, in the language of the Congressional draftsmen of the Code, a rehearing is a “continuation of the former proceeding.” It is a universally recognized concept that, jurisdiction having once attached, it is not thereafter lost because of procedural error. The rehearing constituting, in legal effect, a continuation of the first trial, and jurisdiction having been acquired at that trial, the action of the convening authority in wrongly assessing procedural error does not deprive the court of jurisdiction.
Not so, however, where the convening authority purports to order a new and independent proceeding. This court-martial cannot rely, for its jurisdiction, upon its predecessor. It is as if that prior trial never occurred. At this second trial, therefore, the court must be ordered and constituted strictly in accordance with the law. There is, in military law, no presumption of jurisdiction such as attaches to courts of general jurisdiction. Fauntleroy v. Lum, 210 US 230, 52 L ed 1039, 28 S Ct 641, and the other federal cases relied upon by the majority to draw a distinction between “power” and “duty,” in so far as authority to convene a court is concerned, have no application here. Those, cases involve courts of general jurisdiction. Courts-martial are courts of special jurisdiction, and must be convened strictly in accordance with the law. See United States v. Emerson (No. 77), 1 USCMA 43, 1 CMR 43, decided November 14, 1951; United States v. Goodson (No. 424), 1 USCMA 298, 3 CMR 32, decided April 14, 1952. “Power” to order the trial cannot, therefore, be divorced from the “reasons” which, by statute, give birth to that power. The law allows the convening authority to order a “new and independent proceeding” where the first court was without jurisdiction. If the first court had jurisdiction, there is no authorization in the law for ordering the “new and independent proceeding.” If there is no authorization in the law for the ordering of the second trial, then the court which conducts that trial can have no legal existence.
It follows automatically that no legal effect can be given to the findings and sentence which resulted from the second trial. In so holding, I do not find myself impaled on the horns of any dilemma. The obvious answer is suggested by the majority opinion. As noted therein, the first trial resulted in perfectly valid findings and sentence as to petitioner Padilla. Article 67 (d) of the Code, 50 USC § 654, provides that “In any case reviewed by it, the Court of Military Appeals shall act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the board of review.” The findings and sentence of the first trial in this ease were not approved by the convening authority. They were not, on the other hand, disapproved. As the majority recognizes, the convening authority did not reach in his action the validity of the findings and sentence. Without legal justification, in the words of the majority, he held the first proceedings to be a nullity. I think that it is not only the Court’s prerogative but the Court’s duty to return this record to the convening authority for completion of his review of the findings and sentence resulting from the first trial. It is a simple fact, demonstrated above, that those findings and sentence are the *615only ones upon which further action as to petitioner Padilla may be taken.
It is, of course, obvious that in practical result this conclusion differs little from that reached by the majority. Everyone agrees that petitioner Padilla was properly found guilty (at one trial or the other) and that the only sentence which can possibly be approved is that given at the first trial. The majority would reach this conclusion by allowing a board of review to act on the findings and sentence given at the second trial; I would require the convening authority to act on the findings and sentence as given at the first trial.
As earlier stated, I would recognize this difference in reasoning to be formal and possibly inconsequential were it not for the harm which might result from the majority opinion. First, although the term is not used and although the majority has endeavored to conceal it, the opinion recognizes the validity of a court-martial trial on a de facto basis. The opinion seems to say that regardless of the possible — or, indeed, probable — lack of legal justification for a second trial in this case, and regardless of the fact that no one conceived it to be or treated it as a rehearing, it was a rehearing in fact and therefor may be treated as such in law. I cannot subscribe to this theory. Either there is jurisdiction or there is not jurisdiction; either a trial is legally held or it is not legally held; either a court has de jure existence, or else it has no legal existence. I emphasize again that we are not here dealing with courts of general jurisdiction. Will the majority hold that, even though the requirements of the law are not observed in relation to formation and constitution of a court-martial, legal effect may be given to its actions if only it boldly sits as a court and tries an accused? This is carrying the desirable emphasis of substance over form too far. There are sound and valid reasons, both historical and present, for the rule that courts must have jurisdiction before, any legal effect can be given to their actions. There are equally sound and valid reasons for the rule that special tribunals must be convened strictly in accordance with the law. The majority ignores this rule for — as frankly admitted — reasons of practical expediency. I suggest that there will be other cases in other times where the majority will be considerably troubled by this new and startling doctrine of de facto jurisdiction.
In my opinion, the majority reasoning leaves the door open to arbitrary action by the convening authority. Let us suppose that an accused is tried for an offense, but that the prosecution completely fails to establish a prima facie ease. Nevertheless, the court finds the accused guilty. The convening authority, recognizing the absolute lack of sufficient evidence to support the findings, but desirous of having this particular person legally convicted of the crime charged, holds that the court had no jurisdiction because the members of the court-martial were not dressed in the uniform of the day. He orders a “second trial.” Prior to this second trial, he insures that a more effective case will be presented by the prosecution. The trial counsel at the second trial produces valid and convincing evidence of guilt. The convening authority approves the findings and sentence, and the board of review affirms. The accused comes to this Court with the argument that, because of erroneous and arbitrary action by the convening authority, he was deprived of his right to have the first proceedings reviewed and the charges dismissed for lack of sufficient evidence. It is quite clear that the drafters of the Code did not intend to allow military authorities to have more than one opportunity to present sufficient evidence to convict an accused. Yet, the majority opinion handed down today would prohibit this Court from giving any relief to the accused. Legal effect would be given to the findings resulting from the second trial, and the first trial — the only proper one held — would be ignored. In my opinion, such a result would be inconsistent with the policy of the Uniform Code of Military Justice, 50 USC §§ 551-736.
For the reasons expressed above I would order the charge and specification as to petitioner Jacobs dismissed, *616and would remand the case as to petitioner Padilla to the convening authority for further action consistent with the views set forth herein.