(dissenting):
A plea of guilty is not improvident because there is some evidence in the accused’s favor. If the accused weighs that evidence against the mass available to the Government and determines that it is too meager to justify going to trial on the merits, he can properly enter a valid and unimpeachable plea of guilty. We so held in United States v Hinton, 8 USCMA 39, 41, 23 CMR 263.
. . In a guilty plea case we cannot disregard the probability that the accused and his counsel weighed the evidence and determined that it was inadequate for an effective legal defense or to negate the existence of a specific intent. As a result, they could well have decided to disregard the evidence in favor of the possible advantage of a guilty plea. . . . The critical question, therefore, is whether the accused and his counsel were aware of the legal effect of the evidence claimed to be inconsistent with the plea of guilty.” [See also United States v Watkins, 11 USCMA 611, 29 CMR 427.]
Deliberate disregard of possibly favorable evidence is different from a misunderstanding of the legal effect of an admitted fact. In the latter case, the plea of guilty may be negated by the actual facts; if it is, it must be set aside. This was the situation, for example, in United States v Welker, 8 USCMA 647, 25 CMR 151, where the accused pleaded guilty to larceny, but the conceded facts established that the offense committed by him was receiving stolen property. See also United States v Kitchen, 5 USCMA 541, 18 CMR 165. Here, the accused did not misunderstand the facts or their legal effect. He and his counsel reviewed them at length, and concluded they established the accused’s guilt beyond a reasonable doubt. True, the accused indicated to his lawyer that he thought he had money in the bank to cover his checks, but he also acknowledged that his assertion was “hard to believe in light of his bank records.” And, more importantly, with full knowledge of all the circumstances, he deliberately chose not to subject himself to cross-examination on his contention. Referring to the effect of a pretrial determination of this kind by the accused and his counsel, we said:
“. . . [There is] a great deal of difference between the effect of pretrial statements inconsistent with a later guilty plea and post-trial statements conflicting with an earlier plea. In the former instance, the accused may have maintained his innocence only until he saw, from the weight of the Government’s case, that his pretense was useless, or until his consciousness of guilt overwhelmed him.” [United States v Richardson, 15 USCMA 400, 402, 35 CMR 372.]
The present attack upon the plea of guilty is nothing more than a second guess by the accused as to his chances in a trial on the merits. Even now, however, the accused does not say that if the plea of guilty was set aside, he would take the stand and open himself to cross-examination as to his belief in the sufficiency of his bank account. As I construe the record, the plea was completely voluntary and wholly consistent with the analysis of the evidence made by the accused and his counsel before trial. They determined to reject the accused’s assertion of an honest purpose, for whatever advantage they believed might accrue to the accused from a plea of guilty. United States v Watkins, supra.
Actually, the board of review gave the accused a second chance to show he did not understand the effect of the evidence. It directed a further inquiry into the circumstances of the plea and the accused’s contention that he thought he had money in the bank. The board of review based its remand on our *302opinion in United States v Richardson, supra. In so doing, the board of review may have extended the implications of Richardson, since the remarks in that case about the need for further inquiry were predicated upon the inconsistency between the accused’s post-trial assertions of fact and those in “the stipulations of fact . . . which . . . were . . . insufficient to make out even a prima facie case of guilt.” Id., page 403. Be that as it may, the inquiry was held. The accused admitted that his belief in the sufficiency of the funds in the bank was based upon personal records which were either lost or destroyed; that the bank records, which he examined with his counsel, showed he was not only overdrawn as to the checks charged, but that several others had also been dishonored; that he discussed with his counsel the statutory provision that failure to pay within five days after notice of dishonor is prima facie evidence of an intent to defraud at the time of the issuance of the checks; and that he accepted his counsel’s advice that, by making “a clean breast of the whole matter,” he might get a lighter sentence. The record demonstrates beyond all doubt that the accused’s plea of guilty was wholly voluntary and fully consistent with the available evidence against him.
I have no disagreement with the procedure for the acceptance of a plea of guilty which is proposed in the principal opinion. Perhaps such procedure will reduce the number of post-trial attacks on the voluntariness of pleas of guilty. However, as desirable as the procedure may be, the failure to conform to it in this ease is no excuse for invalidating what, in my opinion, is a voluntary and informed plea of guilty. I would, therefore, affirm the decision of the board of review.