concurring in Ivory, wrote that "a question of double jeopardy is not answered simply in terms of the provisions of Article 44.” Id. at 522, 26 CMR at 302. Chief Judge Quinn found that Ivory was in no position to complain of a position he produced, as he was not prejudiced. Judge Ferguson found a fatal variance existed in the first trial.
A reappraisal of Ivory is not now indicated; however, I would confine its impact to its peculiar fact pattern.
In contrast to Ivory, this accused was tried on a proper charge, with the proper evidence taken. Here there was no material variance, and no finding of guilty. Rather than risk the military judge’s ruling on the defense’s motion for a finding of not guilty, however erroneously it might have been, the prosecution elected to seek, and successfully sought, a dismissal of the charges based on a failure of the available evidence. This expressly constituted a trial on the charges within the meaning of Article 44, UCMJ, and required the defense plea of former jeopardy to be allowed in the second trial.
The importance of the right to be tried only once for a single offense has been repeatedly emphasized by the Supreme Court. United States v Jorn, 400 US 470 (1971); Gori v United States, 367 US 364 (1961). The proscription against plural trials is enshrined in our Constitution and its application to military trials settled by the decision in Wade v Hunter, 336 US 684 (1949). See also United States v Richardson, 21 USCMA 54, 58, 44 CMR 108, 112 (1971). Its purpose is to permit the defendant " 'once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.’ ” Id.
Through the action of the prosecution in securing a dismissal of the charges after the evidence was in, this accused was denied that right. The fact that the prosecution erroneously assessed the state of the proof and moved to dismiss the case after the defense motion for a finding of not guilty should not be held an excuse to permit another trial of the appellant. I do not believe that the responsibility for the management of the *156Government’s case and a trial judge’s error effectively shifted to appellant because he (1) objected to the introduction of evidence, which objection was overruled, (2) he moved for a finding of not guilty, which was not ruled upon, and (3) he did not object to the motion for dismissal. The defense should not have to bear such a burden.
Aside, therefore, from the looming and unanswered question of a fatal variance between the charge and the proof in the second trial, we hold that the military judge erred in rejecting the accused’s plea of former jeopardy.
We answer the certified question in the negative. The finding and sentence are set aside, and the charge and specification are dismissed.
Senior Judge Ferguson concurs.