(concurring in the result) :
While I agree with Judge Quinn that the Court of Military Review was correct in its determination that the accused should not have been required *144to stand trial again for the offense of which he was acquitted at the first trial, I prefer to base my opinion, as did the Court of Military Review1, on the double jeopardy provisions of the Fifth Amendment to the Constitution of the United States, and Article 44, Uniform Code of Military Justice, 10 USC § 844.1
Judge Quinn quotes with approval the Supreme Court’s statement in Ball v United States, 163 US 662, 669, 41 L Ed 300, 16 S Ct 1192 (1896), that “acquittal before a court having no jurisdiction is, of course, like all proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” On its face, this statement would appear dis-positive of the issue before us.
Indeed, Chief Judge Darden in dissent holds that under the reasoning expressed in Ball v United States, supra, and reiterated in Grafton v United States, 206 US at 345, “no jeopardy could attach as a result of the wholly void proceedings in this case.”
The opinion in Ball requires further explication. In the original trial, Ball, one of three defendants, was acquitted of a charge of murder. The two convicted defendants secured a reversal because the indictment, under which all three had been tried, was fatally defective. In the following term the indictment was quashed and set aside. The grand jury then returned an indictment against all three defendants. Ball filed a plea of former jeopardy which was denied. In reversing Ball’s conviction on the ground that it violated the constitu- . tional prohibition against double jeopardy, the Court stated:
“. . . [Although the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgement is not void, but only voidable by writ of error; and, until so avoided, cannot be collaterally impeached.” 163 US at 669-670.
The charges against this appellant were originally referred to trial before a court-martial, consisting of a military judge and members, by the Commanding General, Headquarters, Force Logistic Command, Fleet Marine Force, Pacific. Trial, however, was before the military judge alone (Article 16, UCMJ, 10 USC § 816) and, as noted by Judge Quinn, the appellant was convicted of six of the seven alleged offenses. The convening authority approved the sentence.2 The Court of Military Review, in its original action, affirmed “the findings of guilty and sentence as approved below.” When the case came before this Court, we reversed and directed that “[ajnother trial may be ordered” because no request in writing for trial by judge alone had been submitted. United States v Culver, 20 USCMA 217, 43 CMR 57 (1970). See also United States v Dean, 20 USCMA 212, 43 CMR 52 (1970).
The Uniform Code of Military Justice specifically provides that the Court of Military Review (Article 66 (c), 10. USC § 866), and this Court (Article 67(d), 10 USC §867), "may act only with respect to the findings and sentence as approved by the con*145vening authority” (emphasis added). The latter may approve only findings of guilty. Article 64, UCMJ, 10 USC §864; cf. Article 62, UCMJ, 10 USC § 862. Inasmuch as the appellant was acquitted of conspiracy to murder Major Williams (Specification 1, Charge II), his original appeal from the conviction for the other offenses did not include that specification. He did “not seek to have it [the acquittal] reversed, and the government • cannot. United States v Sanges, 144 US 310. . . . The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.” Ball v United States, 163 US at 670, 671 (emphasis added). In short, the matter was not and could not, by virtue of the statute, have been before this Court during the previous review. Cf. Green v United States, 355 US 184, 193, 2 L Ed 2d 199, 78 S Ct 221 (1957).
The situation in this case is sufficiently similar to that found in Benton v Maryland, 395 US 784, 23 L Ed 2d 707, 89 S Ct 2056 (1969), to warrant the same result. Benton was tried on charges of larceny and burglary. The Jury found him not guilty of larceny but convicted him on the burglary count. During his appeal, the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. Schowgurow v State, 240 Md 121, 213 A2d 475 (1965). Because both the grand and petit juries in Benton’s case had been selected under the invalid constitutional provision, his case was remanded to the trial court and Benton was given the option of demanding re-indictment or retrial. He chose to have his conviction set aside and a new indictment and new trial followed. At the second trial, Benton was again charged with both larceny and burglary. His motion to dismiss the larceny charge on the ground of double jeopardy was denied. He was then convicted of both charges. In reversing Benton’s conviction for larceny the Supreme Court held:
“It is clear that petitioner’s larceny conviction cannot stand once federal double jeopardy standards are applied. Petitioner was acquitted of larceny in his first trial. Because he decided to appeal his burglary conviction, he is forced to suffer retrial on the larceny count as well. As this Court held in Green v United States, supra, at 193-194, 78 S Ct, at 227, ‘ [conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.’” 395 US at 796.
In Benton, the State of Maryland had argued that the original indictment against Benton was absolutely void and that one cannot be placed in jeopardy by a void indictment. In rejecting this argument, the Supreme Court, citing Ball v United States, supra, stated:
“. . . This argument sounds a bit strange, however, since petitioner could quietly have served out his sentence under this ‘void’ indictment had he not appealed his burglary conviction. Only by accepting the option of a new trial could the indictment be set aside; at worst the indictment would seem only voidable at the defendant’s option, not absolutely void.” 395 US at 796-797.
In the case at bar, the court-martial, as originally constituted of the military judge and members, was validly ordered into existence as a court of the United States by the convening authority, and the valid reference of charges to it gave it jurisdiction over the accused. There is also no question that the charges referred to it were within the jurisdiction of such a court-martial. Even the dictum in Ball v United States, supra, would require no more than jurisdiction over “the cause” and “the party” to fix jeopardy rights. When the military judge undertook to hear the case, without first securing a written request for such procedure from the ac*146cused, he acted ip contravention of the provisions of Article 16, UCIVIL 10 USC § 816. In United States v Dean, supra, and cases following which were decided upon the reasoning of that case, we have denominated this judi* cial error as jurisdictional in nature. Can it be said that this aspect of opr case law presents the sort of jurisdictional void which causes an accused to be deprived of an acquittal received after a full judicial hearing? I think not. The relief we gave in Dean and to the appellant hereinbefore, should not be changed from a shield to protect an accused by requiring his election of trial by judge alone to be in writing as required by statute, ihto a sword which cuts him off from double jeopardy protection. Such a result humbles the enormously important constitutional right of being free from defending against charges once acquitted of them by elevating to the jurisdictional plateau a rather technical requirement of military law. I view the Dean loss of jurisdiction as only arising after a court-martial has acquired jurisdiction over the person and the subject matter and, in my judgment, it is not of sufficient magnitude as to break ah acquitted accused’s grip on a bedrock constitutional right Pot to be tried again for a crime for which he has been acquitted.
In my opinion, the statutory disqualification of the military judge from hearing the casé alone is not substantively different from the constitutional disqualification of the grand and petit juries from returning an indictment and rendering judgment oh the evidence in Schowgurow v State, supra, and Bénton v Maryland, supra, and, consequently, I think the Benton result is controlling on the facts of this case. If double jeopardy rights could not be. lost When the trial was before a constitutionally defective jury neither should they be lost when it is before a statutorily defective trial by military judge sitting alone. In the words of Benton, “It is cleár that . , , [Culver’s] cohviction cannot stand once federal [and statutory] double jeopardy standards are applied.” 895 US at 796,
I would answer the certified question in the affirmative.
The Fifth Amendment pertinently provides:
“. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”
Article 44(a), UCMJ, 10 USC § 844, succinctly provides:
“No person may, without his consent, be tried a second time for the same offense.”
See Grafton v United States, 206 US 333, 51 L Ed 1084, 27 S Ct 749 (1907), wherein the Supreme Court held that one acquitted by a court-martial could not be tried a second time by a court established by Congress for trial of civilian crimes for the same offense.
Article 64, UCMJ, 10 USC §864, provides in part: “Unless he [the convening authority] indicates otherwise, approval of the sentence is approval of the findings and sentence.” There is no contrary indication in this case.