(concurring in the result):
I concur in the result.
I do not join in holding that the law officer abused his discretion in denying the motion for a continu-anee. As we pointed out in United States v Rogan, 8 USCMA 739, 745, 25 CMR 243, our concern goes further than whether the defense has presented adequate grounds for granting a continuance or whether the law officer could fairly have done so. The test is not what the law officer could have done, but rather, whether he abused his discretion in what he did, and I believe that if all of the facts were given appropriate consideration, it could be said fairly that he ruled within discretionary limits. However, I need not develop that subject for the reason that, in my opinion, the case must be reversed on the more important issue raised by the accused. That question requires us to determine whether a stipulation of facts obtained in connection with a plea of guilty may be used in a subsequent trial when the findings predicated on that plea are set aside.
A reading of the decision of the board of review discloses that it considered this specific assignment of error and held that in using the stipulation for impeachment purposes, trial counsel committed error. However, the board went on to hold that the error was not prejudicial to the substantial rights of the accused. For reasons which I will hereinafter present, I agree with the first part of the holding but disagree on the conclusion that the accused was not prejudiced. A short statement of facts is necessary to lay a foundation for my views.
Upon the first trial, the accused pleaded guilty pursuant to a pretrial agreement with the convening authority. After findings were returned, a stipulation of facts signed by trial counsel, defense counsel, and the accused, was introduced in evidence, apparently for the purpose of furnishing the court-martial with the facts of the offense so that they could be considered in connection with the punishment to' be imposed. When the record of that trial was considered by the board of review, it affirmed the findings but set aside the sentence and directed a rehearing only as to punishment. The accused filed a petition for reconsideration which was joined in by the Government, and thereafter the board granted the petition and ordered a rehearing on the merits. I quote what I consider to be the most important part of the board’s decision:
“Since it is apparent that the government now considers that the impact of the convening authority’s erroneous remarks until corrected so pervaded all the activities of the general courts-martial convened in his command as to require a rehearing in all eases tried therein during such period, we consider that the only course left open to us is to apply the doctrine of United States v. Lynch, 9 USCMA 523, 26 CMR 303, imputing prejudice to the court here involved, and set aside both the findings and the sentence.” [September 15, 1958.]
At the rehearing, the accused entered a plea of guilty to one specification of larceny and a plea of not guilty to the offense with which we are here concerned. During the course of the trial, the Government introduced in evidence two pretrial confessions executed by the accused. These, together with evidence of the wrongful taking, constituted the Government’s case. The accused’s defense was that he did not take the money, the confessions were false and involuntary, and he confessed because he was coerced and intimidated by agents of the Government. In conducting his cross-examination of the accused, who was a witness in his own defense, trial counsel sought to weaken his testimony by using the following tactics. In connection with the first two confessions, trial counsel *57asked the accused the following questions and received these answers:
“Q You lied once when you were scared, didn’t you — at the CID office ?
“A Yes, sir.
“Q In fact, you lied twice at the CID office when you were scared?
“A Yes, sir.
“Q Are you lying now when you’re scared ?
“A No, sir.
“Q You’re positive of that?
“A Yes, sir.
“Q. Now, you’re denying any implication whatsoever in the larceny of the $65 at Fort Ord on the 8th of March of this year — is that correct?
“A Yes, sir.
“Q Now, have you ever made a statement, signed by yourself, outside of the prosecution exhibits that have been introduced in evidence today, admitting the fact that you stole that $65?
“A No more than the CID, sir.
“Q Are you positive of that?
“A Yes, sir.”
After receiving the last answer, trial counsel produced what was later identified as the previously mentioned stipulation of facts with the announced purpose that he intended to refresh the recollection of the witness. This procedure was objected to by defense counsel, and thereupon an out-of-court conference was held. From the information furnished to the law officer, the colloquy of counsel, and the stipulation itself, it becomes crystal clear that the facts were agreed upon by the parties solely for the purpose of processing a plea of guilty. The law officer overruled defense counsel’s objection, the court reconvened, and the statement was then shown to the accused. He was thereupon asked if it bore his signature and if he would like to change his answer to the previous question. He answered both questions in the affirmative. Obviously, trial counsel’s tactics and technique required the accused to be discredited or disclose to the court-martial that he stipulated his guilt as a prelude to a plea of guilty at the former hearing.
The parties concede that in Kercheval v United States, 274 US 220, 47 S Ct 582, 71 L ed 1009 (1927), the Supreme Court held it was error to furnish a jury with information that the accused had pleaded guilty at a prior trial. They disagree, however, on the question of whether a stipulation of facts entered into pursuant to the plea of guilty falls under the same proscription. I am of the opinion that it must.
In military practice, a procedure has been adopted whereby an accused may solicit the convening authority through his staff judge advocate to fix the maximum sentence which will be affirmed if the accused enters a plea of guilty. The procedure has merit, for it partakes of a compact which is beneficial to both parties. The Government is saved much of the trouble and expense normally incident to the trial of a criminal case, and the accused- — who freely concedes his guilt — is assured that no more than an agreed maximum punishment will be approved. The proceeding does not interfere with the duty of court-martial members to impose appropriate punishment and for that reason the members must know something about the facts and circumstances of the offense. In addition, boards of review and other authorities have powers to reduce sentences, and they should be informed on the facts of the crime. To furnish the court and reviewing authorities with the necessary information and simplify the proceeding, trial counsel, defense counsel, and the accused quite often stipulate to the facts with the understanding that the admissions by the accused are induced by his hope for clemency principally from the convening authority. Without some such purpose, it would be unusual for defense counsel to agree to all facts necessary to support a conviction, and in this case that was the effect of the stipulation. A comparison of the stipulated facts with those alleged in the specification shows marked similarity and, if the facts admitted by the plea of guilty cannot be used, it would be anomalous to give those contained in the stipulation different treatment. The two are so closely woven into a single judicial act that they should be *58measured by the same rule. Particularly is that true when it is found that command influence pervades the plea, for if it is poisoned, all closely related matters which support it are infested. I, therefore, conclude that the stipulation was not usable against the accused and that trial counsel erred when he interjected it into the trial.
One further argument supports my conclusion and, because I believe the board of review sets it out with clarity, I quote and adopt the following portion of its opinion:
“The staff judge advocate discussed this issue in his review (Paragraph 4/) and stated, on the basis of United States v. Kercheval (374 US 220, 71 L. ed. 1009, 47 S. Ct. 582) and other cases cited that the prevailing rule is that a previous plea of guilty subsequently withdrawn, is not admissible upon a retrial, as an admission. We agree. On the other hand, a stipulation or an agreed statement of facts in one trial is generally binding upon a party in a subsequent retrial. The question then remains whether the circumstances in a typical guilty plea case such as this, in which the plea has been entered pursuant to an agreement are such as to render the accompanying stipulation inadmissible upon a rehearing, at which the accused pleads not guilty. We believe that they are. Otherwise, the trial counsel could, in nearly every such case accomplish indirectly what he cannot do directly. Once it has been shown, as here, that the accused has previously in a written stipulation admitted facts which supported his earlier guilty plea, the defense counsel has no choice but to show the circumstances surrounding the making of the stipulation in an effort to minimize the harmful effect of the admission. We cannot regard the introduction of such explanatory matter as a waiver of an otherwise valid objection, nor as a cure for the error.” [March 24, 1959.]
That leaves for consideration the question of prejudice, and this is the point where I take issue with the board of review. True it is, as the board reasoned, that the prosecution had established the corpus delicti and the law officer had correctly admitted the two pretrial confessions of the accused. Obviously, when that evidence is accepted as true, the record supports the conclusion that accused’s guilt is overwhelmingly established. But accused had testified, contrary to the evidence presented by the Government, that the extrajudicial confessions were involuntary and coerced. If he were to be believed and the confessions rejected, the Government’s evidence would be insufficient to sustain the finding of guilt. The resolution of the dispute in the testimony, therefore, involves the credibility of the accused, since evidence in support of his contention of involuntariness was furnished by him. If his credibility was impaired, his testimony would be discredited. Trial counsel, by his method of proceeding, brought before the court three inadmissible factors which would have a serious impact on accused’s truthfulness. The first was that he had falsified on the witness stand when he denied having confessed on a third occasion. The second was that his story of being coerced and intimidated by Government investigators lacked credence in view of the fact that he voluntarily stipulated to the commission of the offense, with consent of his counsel, and at a time when coercion and fear could not have induced him to speak. Third, accused would not be likely to plead guilty if he was, in fact, not guilty. If the court-martial concluded the accused was not worthy of belief for any or all of those reasons, his defense was unfairly undermined. Because there is at least a fair probability that the court-martial could have been so influenced, I believe prejudice infests the finding as to the first specification, to which accused pleaded not guilty.
For the foregoing reasons, I concur in the disposition ordered by the Court,