with whom
SESSOMS, Senior Judge, and MURDOCK, Judge,join (dissenting):
We agree with appellate defense counsel that the circumstantial evidence in this case does not contradict the appellant’s version of events in his pretrial account to investigators and, thus, does not establish a willful and malicious burning of the hospital structure. M.C.M., Pt. IV, paragraph 52b(l)(b)(ii) (1984). Accordingly, we are not convinced that the appellant committed aggravated arson.
First, it is necessary that we indicate our understanding of what a willful and malicious burning is within the context of arson. The Manual states in this respect: “It must be shown that the accused set the fire willfully and maliciously, that is, not merely by negligence or accident.” M.C.M., Pt. IV, paragraph 52c(l) (1984) (emphasis added). Does this mean, as the majority opinion suggests, that an act done deliberately which results in a fire, even if unintended and unexpected, subjects one to criminal liability for arson? Short of invoking a felony arson rule in certain select circumstances, we believe the answer is, “not necessarily.” On the record in this case the answer must be no.
*657The majority, in stressing that arson dobs not require a specific intent to burn a structure, reads entirely too much out of the requirement that a burning must nonetheless be willful and malicious. The two leading cases in recent military law demonstrate that an arsonist must knowingly and deliberately set a fire of some sort whether he specifically intends a structure to be burned as a result thereof or not. In United States v. Caldwell, 17 M.J. 8,10 (C.M.A.1983), Chief Judge Everett explained that the requirement of willfulness is satisfied when “a servicemember ... knowingly starts a fire without lawful excuse and for some mischievous purpose....” (emphasis added). In Caldwell the accused’s conviction for arson of a dormitory dayroom was affirmed based on a showing that the burning of the structure resulted from his intentionally setting fire to a piece of cardboard and placing it in a chair. Similarly, in United States v. Acevedo-Velez, 17 M.J. 1, 7 (C.M.A.1983), which provides a virtual restatement of the law of arson, the accused intentionally set fire to a field jacket, and the flames ultimately spread to a structure. His conviction of arson was affirmed in that circumstance.
Can we say with certainty from this record that the appellant knowingly or intentionally set fire to one or more of the litters and, thus, is guilty of arson with respect to the subsequent burning to the structure? More pertinently, what did the military judge, sitting as finder of fact, determine? We do not know. The military judge was requested by the trial defense counsel to submit special findings. R.C.M. 918(b). In response, he merely referred to various pieces of photographic and documentary evidence, including a stipulation of fact, and to the testimony of certain witnesses which, considered in their totality, convinced him of the appellant’s guilt. Not only did this response not satisfy his obligation to issue special findings, his action leaves us, majority and dissenters alike, to speculate as to how he factually determined the appellant’s guilt. We are left with two possible theories of guilt to consider: 1. The appellant deliberately set fire to one or more litters despite his pretrial statement which indicates otherwise. 2. The appellant is guilty of arson, as the majority appears to believe, because he deliberately held the flame of a lighter to a litter whether he intended to set it on fire or not. We will examine these theories in order.
We have used our own knowledge of human nature and the ways of the world as best we are able this far removed from the trial. The evidence falls well short of satisfying us that the appellant deliberately set fire to one or more litters. No testimony was offered from an expert source concerning the probable origin and spread of the fire. However, an agent of the Office of Special Investigations offered the intriguing opinion that the “point of ignition” was at a location well up the wall from where it met the floor. The curious implication of this testimony is that the so-called point of ignition would have been adjacent to the mid-point of any of the upright litters, not toward the lower end where the edge of the canvas material might have been more easily ignited. The record does not reflect the type of lighter that was employed by the appellant. Any person who has used the type of lighter ordinarily purchased over the counter learns that it is well adapted for its intended purpose, lighting a cigarette or cigar with the flame directed in an upright position. A person may well learn that it is a very poor implement for igniting a fire, particularly if the flame has to be directed in other than a straight upright position. Fingers are imperiled as much, if not more, than the material at which the flame is directed. Such an undertaking is often hastily abandoned for good and sufficient cause. In other words, if the available evidence were accepted as supporting a premise that the appellant deliberately set a fire at or near the identified point of ignition, one might well conclude that he chose a highly inefficient means of starting the fire, but he was nevertheless extremely adept in his effort, or lucky. The theory of a deliberately ignited fire is far too tenuous to satisfy the standard of guilt beyond a reasonable *658doubt, given the lack of supporting circumstantial evidence.
This leaves us with the theory which, whether it was adopted or not by the military judge, appeals to our brothers in the majority. Portrait of an arsonist: The appellant deliberately holds the flame of a lighter to material which he has heard is flame resistant. The material subsequently combusts. The appellant is liable for the natural and probable consequences of his deliberate act.
Two things are wrong with this scenario. First, the term, natural and probable consequences, smacks more of negligence liability than it does of accountability for deliberate criminal activity. This terminology may have a proper place with respect to arson, however the majority has misapplied the concept. For example, Acevedo-Velez and Caldwell, suggest that one who deliberately sets a fire may be guilty of arson if, as a natural and probable consequence thereof, the fire spreads to a structure. See Chief Judge Everett’s discussion in Caldwell, 17 M.J., at 10. Admittedly, whether foreseeability has a significant relationship to arson following Acevedo-Velez and Caldwell is less than clear. At any rate, current case law does not support the proposition that the majority advocates, namely, that an accused may be found guilty of arson if an unintended fire of any sort which eventually spreads to a structure is the natural and probable consequence of his act.
Secondly, and more to the point of this situation, one might well ponder whether an individual, presumably a “layman” insofar as combustibility of flame resistant material is concerned, reasonably foresees that the material will in fact burn if a flame is directly applied to it, particularly if no burning is immediately apparent. We know that the majority has no problem in finding criminal liability in such a circumstance. As previously noted, we can do no better than speculate what the military judge thought about this question or whether he even believed it necessary to consider it. As the majority, we are groping in the dark to a great extent. Proof beyond a reasonable doubt cannot be predicated upon such an exercise in speculation.
Let us assume for the purpose of further discussion that the majority is correct in its interpretation of the law. The appellant held the flame of a lighter to a litter and is criminally responsible for the ultimate burning to the adjacent structure. Res ipsa loquitur. This result raises additional issues which cast doubt on the validity of the conviction. A thorough reading of the record of trial leaves one with the impression that one set of counsel or the other performed inartfully, and perhaps inadequately, at trial. If the majority view of arson is correct, the defense tactics were, at the very least, highly questionable. The essential facts upon which the majority relies were contained in a stipulation. The military judge, in rendering what purported to be special findings, stated that he relied, among other things, on a portion of the stipulation which succinctly summarizes the situation before us by reflecting that the appellant passed by the stairwell where the litters were stored, stopped, held the flame of his cigarette lighter to the canvas, and, then, left the area. Nothing in the evidence which was subsequently placed before the military judge served to damage the appellant’s interests to any greater extent than they were already damaged by the stipulation.
There are several implications arising from the admission of the stipulation. Defense counsel explained that two of five elements of aggravated arson would be contested, namely, that there was a burning of the structure and that the appellant acted willfully and maliciously. M.C.M., Pt. IV, paragraphs 52b(l)(b)(i), (ii) (1984). We will not elaborate as to the first element except to note that the defense position that no burning of the structure occurred appears to us, in retrospect, to be very tenuous at best. If one accepts the majority view of the concept of willful and malicious burning, and particularly if the military judge did, the defense stipulated the case into a predestined result for all intents and purposes. The prosecution had nothing more to prove and, also in retrospect, probably did not improve its case one iota with the other evidence that was brought forth.
*659The military judge did not advise the appellant that he had entered into a confessional stipulation. United States v. Bertelson, 3 M.J. 314 (C.M.A.1977). We recognize that in United States v. Hagy, 12 M.J. 739 (A.F.C.M.R.1981), pet. denied, 13 M.J. 204 (1982), we held that the Bertelson advice is not required where it is clear that the defense is actively contesting an element which might otherwise appear to be satisfied by a stipulation. However, we would be reluctant to apply any such reasoning in this situation. A majority of this court has spoken. In light of the majority view the defense counsel erred as a matter of law in believing that a valid attack could be launched against the element requiring a willful and malicious burning. The stipulation speaks for itself, and it says otherwise.
Our concern about adequacy of counsel is not academic; it represents a live issue. The appellant has filed a submission pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), in which he complains that his counsel did not have sufficient time to prepare for trial. This complaint would appear to have some substance if one were to conclude that the defense preparation consisted primarily of stipulating the case into the hands of the prosecution.
We must, of course, stress that we do not believe that the defense team at trial performed inadequately. We believe, rather, that they possessed a relatively accurate grasp of the law of arson and pursued a sound strategy under the circumstances. We have discussed the implications of the adequacy issue only because they flow logically from the view of arson adopted by the majority.
While we would not affirm the finding of guilty of aggravated arson, we do not address the issue of whether the evidence supports a finding of guilty of a lesser included offense of negligent damage to the hospital structure. The majority, by its resolution, was not required to reach this issue.