(dissenting):
I disagree with the majority on the question of prejudice. In United States v Allums, 5 USCMA 435, 18 CMR 59, we held the accused was not prejudiced by the erroneous refusal of a request to instruct on accomplice testimony. The basis for our conclusion was that the accused’s testimony at trial amounted to a judicial admission of guilt. Next to accused’s judicial admission of guilt, his voluntary, unchallenged confession under oath is perhaps the strongest evidence of guilt. See United States v Smith, 13 USCMA 105, 32 CMR 105. In face of the accused’s confession under oath, which was admitted into evidence without objection, I am unable to see how he was prejudiced by the absence of an accomplice instruction. Pittsburgh Plate Glass Company v United States, *283260 F2d 397, 402 (CA4th Cir) (1958), affirmed, 360 US 395, 3 L ed 2d 1323, 79 S Ct 1237 (1959).
The majority stress the fact that Humphries’ testimony is the only evidence of the corpus delicti; and “had the court not believed it, it could not then have considered the confession.” The argument suggests that sufficiency of the evidence to establish probable commission of the offense is a question of fact for the court-martial, rather than one of law for the law officer. We considered, but did not decide, the point in the Allums case.
Under the majority’s holding the law officer apparently would be required, at least when requested, to instruct the court-martial that it must, before considering the confession, be satisfied first from the evidence, aliunde the confession, that the offense charged was probably committed. The Court of Appeals for the Ninth Circuit rejected that contention in Iva Ikuko Toguri D’Aquino v United States, 192 F2d 338, 357 (1951). Some state courts have reached a similar result. Lee v Commonwealth, 155 Ky 62, 159 SW 648 (1913). People v Williams, 189 Cal App 2d 29, 11 West’s Cal Rptr 43 (1961); State v Hale, 45 Hawaii 269, 367 P2d 81 (1961). The independent corroboration evidence rule in the military practice is “an interlocutory question of the admissibility of the confession.” United States v Smith, supra, page 113. Consequently, in my opinion, the sufficiency of the showing of corpus delicti apart from the confession is for the law officer, not the court-martial. The court need not, therefore, be instructed on the subject, other than it must find on all the evidence that the accused is guilty beyond a reasonable doubt.
So far as the action of the convening authority is concerned, the record of the proceedings indicates that Humphries’ plea of guilty included a requirement that he testify against the accused. Under United States v Gilliland, 10 USCMA 343, 27 CMR 417, the convening authority was disqualified from reviewing the record of trial. I would return the case to The Judge Advocate General for submission to a competent convening authority for further proceedings under Articles 61 and 64, Uniform Code of Military Justice, 10 USC §§ 861 and 864.