(dissenting):
The principal opinion makes out a good case for the desirability of conducting the trial proceedings in accordance with authorized procedures. I have no dispute with those views. What I disagree with, is the conclusion that “no plea of guilty . . . [was] entered by or in behalf of the appellant before” a duly constituted court-martial.
A court-martial is constituted by appropriate order. Once charges are referred to it for trial, the law officer, the president of the court, and appointed counsel are authorized to act. Defense counsel is empowered to, and indeed must, enter upon his duties as defense counsel. Manual for Courts-Martial, United States, 1951, paragraphs 46 and 121. See also United States v Thornton, 8 USCMA 446, 24 *682CMR 256. Trial counsel also immediately assumes the responsibilities of his office. See Manual for Courts-Martial, supra, paragraph 44. Before the court is convened for trial of the cause, the president may confer with trial counsel as to the time of convening, and the uniform to be worn. By implication, he may also make recommendations as to the security of the accused. Manual for Courts-Martial, supra, paragraphs 40, 59 and 60. Similarly, the law officer is not a mute and passive bystander until the moment the court convenes for trial of the accused. In United States v Fry, 7 USCMA 682, 686, 23 CMR 146, we indicated he had a legitimate area of action before the case came on to be heard. We observed that he could prepare to meet some of the special problems which might arise at the trial by asking “counsel to inform him of the issues that may be raised”; and he could read and study the charges against the accused. In my opinion, he can also inquire into whether the accused intends to plead guilty. See United States v Hood, 9 USCMA 558, 26 CMR 338. That brings me to the crucial question of whether the accused’s acknowledgment of guilt was presented only to the law officer in the pretrial inquiry.
After the convening preliminaries, the law officer announced in open court, before the qualified court members, that the accused had pleaded to the charges and specifications before them, and that he had accepted the plea. The accused and his civilian and military counsel were present; none of them entered an objection. Nor did they object when trial counsel later announced that “in view of the accused’s plea of guilty” he had “no evidence to present.” Nor did they object, when, at that point, the law officer said: “Defense Counsel, the prosecution has rested in view of the plea of guilty.” The only response was by defense counsel, who said: “The defense rests.” Finally, neither the accused nor either of his lawyers objected when the law officer instructed the court members that a “plea of guilty standing before the court is a complete confession of guilt of the offenses charged”; and that in “this ease the accused has entered a plea of guilty to all charges and specifications. This plea still stands.”
An accused’s counsel can bind the accused to a formal plea of guilty, although the accused himself remains silent. United States v Denniston, 89 F2d 696 (CA 2d Cir), cert den 301 US 709, 81 L ed 1362, 57 S Ct 943 (1937). The conduct of the defense lawyers in this case clearly indicates they regarded the law officer’s announcement of the accused’s plea, as if they had themselves made it. Under the circumstances, the plea of guilty was, in my opinion, made a part of the proceedings in open court as completely and effectively as if it had been formally announced by the accused or his lawyers. Cf. United States v Cambridge, 3 USCMA 377, 12 CMR 133.