(concurring in part and dissenting in part) :
Like the Chief Judge, I see no point in going into the findings on the remand of this case. Otherwise I find myself fully in agreement with my other associate.
II
In United States v Beer, 6 USCMA 180, 19 CMR 306, we held that the presence of a disqualified court-martial member might be the subject of express waiver. This would seem to indicate that an error of this sort is not jurisdictional in character, and amounts at most to a violation of military due process. See also United States v Tombaugh, 18 CMR 733. Corroboration of this view can perhaps be secured by inquiring into the cogency of the Government’s position if its lawyers had been contending that the action of the court-martial here constituted a complete nullity, and that, therefore, the court at a second trial is unlimited by the sentence originally imposed, if it finds the accused guilty. Cf. Manual for Courts-Martial, United States, 1951, paragraph 92.
In United States v Lucas, 1 USCMA 19, 1 CMR 19, one of this Court’s early cases, the accused had entered a plea of guilty to a charge of absence without leave. The president of the special court-martial which tried him omitted inadvertently to supply any sort of instruction or charge — this in the face of a Manual provision requiring action of this nature “in all cases, including those in which a plea of guilty has been entered.” See Manual for Courts-Martial, supra, paragraph 73 b. Moreover, the court-martial did not close to deliberate on findings, nor were findings at any time arrived at formally and returned — as contemplated by Article 52 of the Code, 50 USC § 627. Instead, the president announced simply that “the specification was proven by the plea” — and thereafter the court was closed to vote on the sentence. However, we affirmed the conviction unanimously — and Judge Latimer, the organ of the Court, indicated our acceptance of the civilian rule that “A plea of guilty is a confession of guilt and equivalent to conviction. It removes from the trier of the fact any question of innocence or guilt. If the plea is *437regularly made there remains only the requirement by the court of imposing an appropriate sentence.” See also the two separate opinions in United States v McElroy, 3 USCMA 606, 14 CMR 24.
If this is true, and if — as I conclude —the error was nonjurisdictional, then 1 have difficulty in seeing why, by his plea of guilty, the accused here did not, in effect, waive all defects in the membership of the court-martial, at least so far as the findings are concerned. Lawyers, both civilian and military, are well-acquainted with the characteristics and effects of such a plea. They must know — in light of Lucas and other like authorities — that the plea of guilty operates to deprive an accused person of his right to urge on appeal that his conviction should be set aside because of a failure to accord him fundamental safeguards, such as instructions on the elements of the offense committed. Why then would they have reason to believe that it does not also waive all right subsequently to attack the qualifications of court members so far as their findings of guilt and innocence are concerned? After all, this is scarcely the time for us to become tender in the application of the doctrines of waiver and purgation of prejudice! Cf. United States v Fisher, 4 USCMA 152, 15 CMR 152; United States v Henry, 4 USCMA 158, 15 CMR 158; United States v Gibson, 3 USCMA 512, 13 CMR 68; United States v Ferry, 2 USCMA 326, 8 CMR 126; United States v Freeman, 2 USCMA 329, 8 CMR 129.
Furthermore, in Lucas we stated that, after a plea of guilty, the triers of fact “could not, without violating their oaths as members of the court, return a not guilty verdict.” (Emphasis supplied) Perhaps the Government would have basis to complain of the disqualification of a court member if, after such a plea and in violation of his oath, he voted for acquittal. However, it could scarcely aid the accused here to say that the member concerned would be the less fit to fulfill his sworn obligation to return findings in accordance with the former’s plea of guilty.
It will be remembered that, in the Beer case, supra, an equally defective court was permitted to function in the area of both findings and sentence. However, in neither civilian nor military practice is a plea of guilty directed to the strictly punitive function of the court — except insofar as it is entered pursuant to an understanding or expectation concerning the punishment to be adjudged. Therefore, it would not be anticipated by counsel that such a plea would operate as a waiver of any right relating to sentence — one of these being entitlement to punishment imposed by a court consisting solely of members qualified under the terms of the Code. Still less would the plea constitute consent to the imposition of sentence by a defective court. Cf. United States v Young, 2 USCMA 470, 9 CMR 100. Therefore, I am sure that the rationale of the Beer case does not compel us to affirm the sentence here as well as the findings. Cf. United States v Tombaugh, supra.
Ill
Certain practical considerations support the suggestion of Judge Quinn— relying on our Field case — to the effect that no more than a rehearing on sentence need be granted. In many instances by the time a rehearing is held, the Government’s witnesses will have been dispersed and its evidence dissipated. Taking advantage of that circumstance, an accused who had entered a plea of guilty at his first trial — and thereby virtually requested conviction— may elect, on advice of counsel, to plead differently at the second proceeding, assuming that guilt is to be re-litigated. In such event, the unavailability of evidence may operate to yield an acquittal — and so, by reason of considerations which touch him not at all, a judicially confessed criminal comes to gain a windfall. Of course, in the present case this danger is slight, for it appears that means are ready to hand which would establish the present accused’s guilt, were a rehearing thereon to be granted him. However, we are not declaring law for McBride alone.
In this connection let me hark back to the language of my separate concurrence in Beer, supra: “I am sure *438that in the Moore case we went as far as we should in requiring the excuse of court-martial members for what in most instances are purely technical and formal reasons.” Thus, I am constrained here to accept Judge Quinn’s position.