(dissenting):
I dissent.
Where, as here, the offenses before the Court require the imposition of a sentence to imprisonment for life1 in the event an accused is found guilty, I cannot agree that marginal compliance with the requirements of United States v Care, 18 USCMA 535, 40 CMR 247 (1969), for interrogation relative to the actions constituting the offense, is sufficient under the law for the acceptance of a plea of guilty. The very controversy before us reveals the weakness in such a holding. When the military judge informed the accused that the second element of the charge of felony murder was that the *56victim’s “death resulted from the act —from your act in shooting him with a pistol” (emphasis supplied), the accused replied that he understood. Thereafter he answered in the affirmative when asked by the judge “do you believe and admit that taken together, these elements correctly describe what you did?” The prosecution then introduced a stipulation of fact (Prosecution Exhibit 2) which revealed that prior to trial the accused had asserted that one Powell had shot and killed the victim with a pistol during the course of the robbery of the victim in which the accused participated. It is apparent that the stipulation is factually at variance with the accused’s ac-. knowledgment that he personally shot the victim with a pistol. Such a variance hardly accords with the stringent requirements of Care that the military judge ascertain that the accused’s plea of guilty was knowingly and intelligently given. While Wimberly’s guilt under the law of principals, as this law relates to felony murder, may have been provable by the Government, the accused was not so charged nor was the plea made or received on that basis. When the military judge became aware of the variance between the plea and the stipulation, he should have conducted a further inquiry, explained to the accused his responsibility as an aider and abettor (Article 77, Uniform Code of Military Justice, 10 USC § 877), and secured his agreement that he fully understood the basis for his guilt. Lacking such explanation or a withdrawal of the contention that one other than the accused actually fired the pistol, I would hold that the plea was not knowingly and intelligently given. United States v Care, supra. As the Supreme Court stated in Boykin v Alabama, 395 US 238, 242, 23 L Ed 2d 274, 279, 89 S Ct 1709 (1969):
“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. See Kercheval v United States, 274 US 220, 223, 71 L Ed 1009, 1012, 47 S Ct 582.”
My brothers take the position that the stipulation could be considered as a history of an alibi that the appellant had once advanced to a county judge in Texas and that the military judge was justified in considering the reference therein to Powell’s participation as not being relied upon at trial. Such a position, however, ignores the fact that this was the Government’s own evidence and that Wimberly had also, on two separate occasions, related this version of the events to a military investigator and, additionally, repeated it while undergoing a psychiatric evaluation at Brooke Army Medical Center, Fort Hood, Texas. After findings, the prosecution referred to the psychiatric report and stipulated, among other matters, that the report reflected: “There is no indication from either psychiatric evaluation or psychological testing that this man was insane at the time of the crime, that he is now hallucinating the presence of an individual named Powell or that he was delusional at the time of the alleged crime.” (Emphasis supplied.) This further reference to Powell should have alerted the military judge to the inadequacy of his inquiry.
I would reverse the decision of the United States Army Court of Military Review, affirming the accused’s conviction of murder, and direct that a rehearing thereon be ordered.
The fact that under a pretrial agreement the convening authority had agreed to approve a sentence which included no more than forty-five years confinement at hard labor is of little importance in this case. The sentence by the court to life imprisonment was still mandatory under the Code and, as a practical matter, in either case the accused would be eligible for parole in fifteen years.