(dissenting):
I dissent.
The accused entered a plea of not guilty of the offenses charged. The following evidence was presented to the court-martial:
(1) A stipulation of expected testimony of the victim of the offenses, joined in by the trial counsel, defense counsel, and the accused. The stipulation contained a detailed account of time and place and manner in which the room had been unlawfully entered, as well as a description of the subject matter of the larceny.
(2) An oral stipulation of expected testimony of an agent of the Office of Special Investigations, joined in by the trial counsel, defense counsel, and the accused. The stipulation related to the contents of an oral confession made by the accused to the agent in which he admitted having broken into the room and stolen the money.
The prosecution rested its case following the admission into evidence of these two stipulations. No evidence was presented on behalf of the accused. Neither side made a closing argument prior to findings. The court-martial deliberated just three minutes before returning its findings of guilty.
The defense counsel made a brief argument in extenuation and mitigation and then stipulated with the consent of the prosecution and the accused that if the stockade sergeant were present in court, he would testify that while in confinement the accused had been “a model prisoner.” Evidence of one previous conviction was introduced. The court-martial, after a brief deliberation, returned a sentence of dishonorable discharge, total forfeitures, and confinement at hard labor for seven years.
*473I cannot believe that this was an adversary proceeding and that the procedures employed represent the trial of a criminal ' case. Paragraph 154&(1), Manual for Courts-Martial, United States, 1951, in discussing the use and admissibility of stipulations as to facts, states:
. A stipulation need not be accepted by the court and should not be accepted if any doubt exists as to the accused’s understanding of what is involved. If an accused has pleaded not guilty and the plea still stands, the court should not accept a stipulation which practically amounts to a confession.” [Emphasis supplied.]
In my view this Manual provision states a good rule of evidence. Although the stipulations contained in the instant case were stipulations as to testimony rather than as to facts, paragraph 154& (2), Manual, supra, in discussing the former, provides that the “principles as to acceptance . , . of stipulations as to facts apply” except where liberalized by the court. I find it difficult to imagine a more flagrant violation of this provision than the instant case. The law officer admitted the stipulations in evidence without the slightest consideration of the fact that their admission was totally inconsistent with the accused’s plea. It is true that on one occasion he inquired of the accused whether he understood the stipulation; however, this strikes me as a grossly inadequate substitute for a careful explanation to the accused of his rights and the effect of the use of such stipulated testimony. As for defense counsel’s representation, it appears that his sole objective was to assist the trial counsel in prosecuting the case against the accused as expeditiously as possible. In such a setting, the accused’s plea of not guilty amounted to no more than an empty and futile gesture. I would reverse the decision of the board of review and order a rehearing.