(dissenting):
The provision of the Manual for Courts-Martial, United States, 1969 (Rev. ed), on which the principal opinion relies extends to trials void for want of jurisdiction the sentence limitation applicable to rehearings. Paragraph 81d(2), Manual, supra. As the paragraph states, new trials on jurisdictional grounds are “subject to the sentence rules provided for rehearings” (emphasis added).
Nothing in the Manual or in the Department of the Army Pamphlet No. 27-2, Analysis of Contents, Man* ual for Courts-Martial, United States, 1969, Revised Edition, indicates that the drafters intended to abolish the distinction between rehearings and re* trials that traditionally governs the application of the doctrine of former jeopardy. In the case of a rehearing, the pleas of autrefois acquit and autrefois convict are available, but, as the Manual notes, “Court-martial proceedings without jurisdiction over either the person or the offense charged aye a nullity,” Paragraph 215a, Manual, supra. This provision was intended to continue the principle enunciated in the Manual for Courts-Martial, United States, 1951, that the defense of former jeopardy Was not available “if the proceedings were void for any reason, SUCh as lack of jurisdiction to try the person or the offense,” Paragraph 68 d, Manual, 1951, supra; Department of the Army Pamphlet No. 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised Edition, at 29-2.
The question presented then is whether the accused may be subjected to another trial oh charges of which he had been earlier acquitted by a purported court-martial that had no au-thorised existence. For civilian courts, the Supreme Court has declared that “acquittal before a court having no jurisdiction is, of Course, like all pro*147ceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” See Ball v United States, 163 US 662, 669, 41 L Ed 800, 16 S Ct 1192 (1896). In Grafton v United States, 206 US 333, 51 L Ed 1084, 27 S Ct 749 (1907), the same dictum was expressed in an opinion holding that a person acquitted by a court-martial had a double jeopardy defense to a later trial for substantially the same offense before a court established by Congress for the trial of civilian crimes,
In the instant case the accused was first tried by something having no authorized existence as a competent court. United States v Culver, 20 USCMA 217, 43 CMR 67 (1970); United States v Dean, 20 USCMA 212, 43 CMR 52 (1970). The case is distinguishable from Ball v United States, supra, and Benton v Maryland, 395 US 784, 23 L Ed 2d 707, 89 S Ct 2056 (1969). In Ball, one of three defendants was acquitted of murder. The two convicted defendants secured a reversal because the indictment was fatally defective. Although the indictment was defective, the trial court had jurisdiction of the cause and of the party, and the Supreme Court held that Ball’s reprosecution was barred by the doctrine of former jeopardy. In Benton, the defect was in the composition of the jury. The flaw in that case did not extend to the authorized existence of the court before which the trial was conducted. The case before us is different because the improperly constituted court-martial had no jurisdiction of any kind.
Thus, my view differs from that expressed in Judge Duncan’s separate opinion. As he states, the defects in both Benton and Ball made the judgments of the respective courts voidable but not wholly void. In Ball, the Supreme Court expressly declared the trial court had jurisdiction of the cause and of the party and “its judgment is not void, but only voidable by writ of error; and, until so avoided, cannot be collaterally impeached.” 163 US at 670. In Benton, it concluded that “at worst the indictment would seem only voidable at the defendant’s option, not absolutely void,” 395 US at 797. On that basis, jeopardy was held to attach in the prior proceedings.
It is true that, as initially constituted, the court-martial to which the charges against Culver were referred had jurisdiction over him and the offenses. But jeopardy does not attach upon the reference of charges or assembly of the court for preliminary proceedings. In cases of trial by judge alone, jeopardy attaches only after introduction of evidence on the issue of guilt or innocence. Paragraph 2156, Manual, supra; Article 44, UCMJ, 10 USC § 844; United States v Wells, 9 USCMA 509, 511, 26 CMR 289, 291 (1958); Clawans v Rives, 104 F2d 240 (DC Cir 1939); Newman v United States, 410 F2d 259 (DC Cir 1969), cert denied, 396 US 868, 24 L Ed 2d 121, 90 S Ct 132 (1969).
At the time the military judge began to hear evidence in this case, a court no longer existed, since the accused did not elect in writing to have a judge hear the case alone. The proceedings then were, as we stated in United States v Dean, supra, wholly void, and jeopardy could not attach in the accused’s trial, regardless of whether his “acquittal” was before us on the subsequent appeal.
Moreover, I disagree that a court-martial proceeding may be void only with reference to those offenses of which the accused stands convicted and not as to those of which he was acquitted. As Judge Quinn has stated:
", . . Either there is jurisdiction or there is not jurisdiction; either a trial is legally held or it is not legally held; either a court has de jure existence, or else it has no legal existence.” United States v Padilla, 1 USCMA 603, 615, 5 CMR 31, 43 (1962).
I subscribe to that statement and would hold under the reasoning expressed in Ball v United States, supra, and reiterated in Grafton v United *148States, supra at 345, “as indisputable, on principle and authority,” that no jeopardy could attach as a result of the wholly void proceedings in this case. Accordingly, while the wisdom of his decision may be open to doubt, the convening authority was free to order another trial of the accused before a properly constituted court-martial on the charges of which he was initially “acquitted.”
I would answer the certified question in the negative and reverse the decision of the Court of Military Review.