(2) The court will then proceed to the next charge and specifications, until votes have been taken and decisions recorded, as hereinbefore directed, upon all the charges and specifications.

Evidence of

tions.

1902. (1) When the members of the court have voted upon all the charges, if the accused has been found guilty, or guilty in a less previous convicdegree than charged, upon any one of them, by the number of members which the law may require in the particular case, the court will be opened to receive evidence of previous convictions. These convictions should be proved by the records of previous trials or by duly authenticated orders promulgating the same, showing the actual offenses of which the accused was convicted. The members shall next proceed to vote upon the punishment to be inflicted.

Method of vot

(2) Each member shall, in the order before directed, write down and describe the measure of punishment which he may think the ing. accused ought to receive, and hand his vote to the president, who shall, after having received all the votes, read them aloud.

Procedure

(3) If the requisite number shall not have agreed upon the nature and degree of the punishment to be inflicted, the president shall when the first proceed in the following manner to obtain a decision:

(a) He shall begin with the mildest punishment that has been proposed, and after reading it aloud shall ask the members, successively, beginning with the junior in rank: "Shall this be the sentence of the court?" and every member shall vote, and the president shall note the votes.

(b) Should there be no decision, the president will, in the same manner as before, obtain a vote upon the next lowest punishment, and shall so continue until some sentence, either of the first or of a subsequently proposed set, shall have been decided upon.

ballot is not decisive.

Sentences, how

1903. Except in the case noted in article 1908, the opinion of the majority is the opinion of the court, and the minority is bound determined. thereby; but as the oath taken by every member provides for the concealment of the vote or opinion of each particular member, care shall be taken that it does not appear on the record either that the votes of the members in regard to the finding or sentence were unanimous, or what number of them voted for any particular finding or sentence, with the exception already noted; and in that case the record must explicitly show the concurrence of two-thirds of the members present.

Court must ac

1904. The president, in collecting the votes, must bear in mind that the court is bound to exhaust the whole of the charges that quit or convict come before it by expressly acquitting or convicting the accused of of every allegaeach allegation that is contained in the specification.

tion.

1905. (1) It is made by law the duty of courts-martial, in all Adequate puncases of conviction, to adjudge a punishment adequate to the character and nature of the offense committed.

ishment to be assigned.

Limitation of

(2) Limitations to the punishment of officers and enlisted men, prescribed in pursuance of law for the government of naval general punishment. courts-martial in times of peace, will be found appended to Articles for the Government of the United States Navy.

power.

(3) The law has never intended to vest in courts-martial the power Court has not to pardon offenses, or to award a nominal punishment equivalent to the pardoning a pardon. The power to pardon, remit, or mitigate is expressly vested in the President of the United States or the officer authorized to convene the court. The exercise of this power by a court-martial is therefore illegal.

Recommenda - (4) If mitigating circumstances have appeared during the trial, tion to clemency. which could not be taken into consideration in determining the degree of guilt found by the verdict, the court can avail itself of such circumstances as adequate grounds for recommending the prisoner to clemency.

Statutory pen

alty.

Punishment of

death.

Death

sen

1906. In all cases where the statute has designated a penalty for a particular offense, none other than that_particular penalty can be imposed, and the court must pronounce the sentence which the law requires, whenever the fact is proved.

1907. The punishment of death can only be adjudged against persons subject to the Articles for the Government of the Navy, for the crimes specified in the fourth, fifth, and sixth of those articles, and sentence of imprisonment at hard labor only as a substitute for the death penalty, or under the provisions of articles 7 and 8 of the said Articles.

1908. Sentences of courts-martial which extend to loss of life tences, how de- require the concurrence of two-thirds of the members present, and can not be carried into execution until confirmed by the President of the United States.

termined.

to

as

Sentences hard labor substitute for death penalty.

Offenses with

1909. A naval court-martial may adjudge the punishment of imprisonment for life, or for a stated term at hard labor, in any case where it is authorized to adjudge the punishment of death; and such sentences of imprisonment and hard labor may be carried into execution in any prison or penitentiary under the control of the United States, or which the United States may be allowed by the legislature of any State to use; and persons so imprisoned in the prison or penitentiary of any State or Territory, shall be subject in all respects to the same discipline and treatment as convicts sentenced by the courts of the State or Territory in which the same may be situated. (Art. 7, sec. 1624, R. S.)

1910. Sentences for offenses not provided for by special penalty, out mandatory but left to be determined by the discretion of the court, must be neither cruel nor unusual, but in accordance with the common law of the land and the customs of war in like cases.

sentences.

Sentences

to

1911. (1) Sentences to suspension must state distinctly whether suspension from from rank or from duty only, and whenever they include forfeiture rank, duty, or of pay, it shall be the duty of the court, in the case of commissioned officers, to state the rate of pay and time of such forfeiture, and in all other cases to fix the amount of pay so forfeited, stating it in dollars and cents.

pay.

Loss of numbers.

Reduction of rating.

Allowances to prisoners.

(2) When an officer's position on the navy register will not permit of his being reduced as stated in article 1905, paragraph 2, defining limitations to punishments, the court should place him at the foot of the list, with the proviso that he is to remain in that position until he shall have lost the required numbers.

(3) In all cases in which the sentence imposed on a petty officer involves confinement, it should include reduction to one of the ratings below petty officer in the branch. to which he belongs, and in the case of a noncommissioned officer of the Marine Corps, to private.

(4) In all cases where enlisted men are sentenced to be confined, the sentence should include a provision for the loss of all pay during confinement, except an allowance of at least two dollars per month for prison expenses; and in case the sentence involves dishonorable

discharge from the service an allowance of at least twenty dollars should be included, to be paid at the time of discharge.

(5) It is competent for a court-martial to decree forfeiture of all pay that is due, or may become due to an offender.

Forfeiture of

pay due. Sentences for

Regular desertion.

(6) In all cases of desertion the sentence should include dishonorable discharge and forfeiture of pay and allowances. allowances, such as marine clothing, continue unless stopped in direct terms by the sentence.

1912. (1) A sentence of imprisonment must express distinctly Terms of imfor what period the same shall continue.

prisonment to be defined.

When confine

(2) The term of confinement is understood to take effect from the date of promulgation of the sentence. Should an unusual time ment is to begin. elapse between the approval and promulgation of the sentence, all of that time, beyond what is necessary for its communication, may be counted as part of the punishment. But should the sentence be to solitary confinement, or to confinement on low diet, the full time of the conditioned confinement must of course be fulfilled.

duty

(3) General courts-martial have full authority to embrace in a Police sentence a requirement for police duty, and such duty is deemed recommended. conducive to health and prison discipline; but unless the sentence expressly so provides, it is not lawful to employ a prisoner upon such duty except at his own request.

(4) Whenever a general court-martial imposes a sentence of soli

Conditioned

tary confinement on bread and water or diminished rations, the confinements. provisions of article 1828, paragraph 3, and article 1829, paragraph 1, shall be observed.

General courts

1913. General courts-martial are empowered by statute to inflict any of the punishments authorized for summary courts- may inflict same martial.

SECTION 8.-THE RECORD.

punishments as summary courts.

drawn up and recorded.

1914. When the president has taken the votes of all the memFinding and bers on all points, the judge advocate shall be called in, and under sentence, how the direction of the court he shall draw up the finding and sentence, specifying precisely how far the accused has been found guilty of each charge, and the exact nature and degree of punishment awarded by the court, and after approval by the court shall enter the same upon the record in his own handwriting.

Authentication

1915. The sentence having been recorded, the proceedings in each separate case tried by the same court are required by law to of judgment. be signed by all the members present when the judgment is pronounced, and also by the judge advocate.

1916. Should a court be dissolved by the convening authority When dissolufor any sufficient cause, before it has proceeded to judgment, that tion takes place fact, together with the proceedings of the court up to its dissolu- before judgment. tion, must be recorded and authenticated in the same manner as if

the trial had been completed.

1917. After the sentence of a court shall have been decided on,

Recommend a

it is competent for any of its members to move that the accused be tion to clemency. recommended to the clemency of the revising power. This recommendation is not to be inserted in the body of the sentence, but recorded, with the reason therefor, immediately after the signatures of the court and judge advocate to the sentence, and must be signed by the members concurring in it.

How the rec

1918. (1) The record of all naval courts-martial shall be clearly ord is to be kept and legibly written without erasure or interlineation, leaving a

and made up.

Duties of judge advocate in

gard to record.

re

Remarks and

margin of one inch on each side and at the top of each leaf, through which latter margin the leaves are to be fastened. Every page, unless the proceedings be typewritten, shall be numbered and written on the odd-numbered pages from top to bottom, and the even-numbered pages from bottom to top.

(2) The judge advocate shall take especial care that the entire proceedings of a court during a trial or in any session shall be fully set forth in the record. All orders, motions, votes, or rulings of the court, all motions, propositions, objections, arguments, statements, etc., of the accused, and of the judge advocate; the entire testimony of each witness, given as nearly in his own language as possible; and, in short, every part and feature of the proceedings material to a complete history of the case, and to a correct understanding of every point thereof by the reviewing officer, shall be recorded at length.

(3) The remarks and arguments of the members of the court in arguments of discussing interlocutory questions, or in connection with their final cussion not to be judgment, shall not be detailed as part of the proceedings.

members in dis

recorded.

Completion of record.

1919. After the proceedings and sentence, with the recommendation to clemency, if any, have been signed, the action of the court, whether an adjournment or the taking up of a new case, shall be Record to be recorded, and this entry having been authenticated by the signasent to conven- tures of the president and the judge advocate, the record shall be ing authority. forwarded by the president to the convening authority, or, in the United States, where the court is convened by order of the Department, direct to the Judge-Advocate General.

Distinct trials

1920. Each case being thus made complete in itself and the to be signed and record continuous, when all the cases laid before the court have made up and forwarded separatebeen finished and severally authenticated and forwarded as hereinly. before provided, the president will inform the convening authority Report of pres- by letter that all the business before the court has been completed, Adjournment and the court will adjourn to await his further orders, he being the only proper person to dissolve it.

ident.

of court.

Reviewal of proceedings.

Revisal of pro

SECTION 9.-REVISION.

1921. Upon the receipt of the record of a court-martial it shall be the duty of the reviewing officer to proceed at once to scrutinize the same, in order to return it for revision or amendment, if such course be necessary, before the dissolution of the court.

1922. (1) When a court is ordered to revise its proceedings, new ceedings by a testimony shall not be brought forward in any shape.

court.

Record of revision.

(2) The revision will be strictly confined to a reconsideration of the matter already recorded in the proceedings, no part of which is to be amended, altered, or annulled in any way.

(3) During a revision, an entirely separate record shall be kept, to which the order for reassembling must be affixed; and a full entry must be made of all the proceedings, verified in the ordinary manner by the signatures of all the members of the court and the judge advocate, and transmitted as before to the reviewing officer for his approval. The judge advocate shall be excluded from the court room during a revision of the finding and sentence of the court.

Amendment of

record.

1923. (1) If the court be reconvened to amend or otherwise remedy a defect or omission in the record, which may be done if the defects in the facts warrant, the reconvening order must be attached to the record, which shall also show that at least five members of the court, the judge advocate, and the accused were present, and that the amendment was then made to conform to and express the truth in the

case.

(2) Clerical errors may be amended by the court without the presence of the accused, but they are not to be corrected in an informal manner by erasure or interlineation. The legal procedure is for the proper officer to reconvene the court, calling its attention in the order for reassembling to the error requiring correction, and for the court, on reassembling, to continue the record by a report of the proceedings of the additional session in which the amendment is made.

Correction of

clerical errors.

Record of addi

(3) Whenever a court shall be reconvened for the purpose of amendment or correction of its record, the reconvening order must tional sessions, how kept. be annexed to the proceedings, which are to be entered in full, authenticated in the proper manner, and transmitted to the reviewing officer for his approval.

SECTION 10.-FINAL ACTION.

Court entitled

1924. It is not in the power of the revising authority to compel a court to reverse its judgment upon a plea in bar of trial, or to change to a free exercise its finding or sentence when, upon being reconvened by him, it has of judgment. declined to modify the same, nor either directly or indirectly to enlarge the measure of punishment imposed by sentence of a courtmartial.

sentence.

1925. No sentence of a general court-martial can be carried into Confirmation execution until after the whole of the proceedings have been laid and execution of before the reviewing authority, or, when the circumstances of the case require such action, have been submitted through the Secretary of the Navy to the President of the United States for his confirmation and orders.

1926. Where the law does not authorize the officer who convened Powers of the a general court-martial to confirm and execute the sentence, he has officers ordering the court. still absolute power to disapprove and annul it. Should the sentence be one which he is not empowered finally to confirm and execute, and he can not remit or mitigate the same, if he thinks it ought to be confirmed, he should, in transmitting the proceedings to the authority having such power, subscribe a formal approval thereof upon the record.

1927. (1) The finding and sentence of every general court-martial approved by the commander in chief of a squadron shall be communicated by him in a general order to his command.

(2) The sentences of courts held by order of the Secretary of the Navy within the United States will, in like manner, be published in general orders by the Navy Department.

Promulgation of sentence.

Irregularities

be published.

1928. Should the proceedings of a court-martial be disapproved for any informality or irregularity of the court, the particular infor. in procedure to mality or irregularity will be made known in the general order promulgating the result of the trial, so as to prevent, if possible, a recurrence of similar errors.