Opinion of the Court
PER CURIAM:Accused’s conviction of desertion, terminated by apprehension, was affirmed by a board of review. He has petitioned this Court to determine the sufficiency of the evidence to support the finding of apprehension.
The record shows that the following stipulation was entered into by the prosecution, defense counsel, and the accused.
“It is hereby stipulated and agreed by and between trial counsel, defense counsel, and the accused, Private First Class Jack W. L. Cowans, RA 55 036 939, with the consent of the accused, that if Mr. Joe M. Cooper, Chief of Police, Fayette, Missouri, were present in court and sworn as a witness, he would testify in substance as follows:
I know the accused in this case. I apprehended the accused at 1130 hours, 22 September 1953, at Fay-ette, Missouri.”
This stipulation is virtually the same as that in United States v. Beninate, 4 USCMA 98, 15 CMR 98. In that case we held the stipulation to be insufficient to support the finding of apprehension.
The Government attempts to distinguish the present case from Beninate, supra, by the fact that an extract copy of a morning report entry shows that one day after the apprehension the accused was attached to a Military Police unit in Kansas City, Missouri, which is approximately one hundred and twenty-six miles from Fayette. This circumstance does not strengthen the Government’s case. As we pointed out in Beninate, the accused might have been freed by the civilian authorities, and thereafter surrendered himself to the military.
The finding of apprehension is set aside. The case is returned to The Judge Advocate General of the Army for submission to a board of review for redetermination of an appropriate sentence.