court. to be in closed character, shall be conducted in closed court, the accused being informed of the action the court has taken when the doors are opened; and whenever the court is closed for deliberation, either upon objection made or for final consideration of the case, the judge advocate of the court shall withdraw and the expression "the court was cleared" shall be understood as including such withdrawal. Evidence, how recorded. 788. (1) All evidence, whatever its nature, shall be recorded on the proceedings in the order in which it is received by the court, and as nearly as possible in the words of the witness. Testimony to (2) When the examination of a witness is closed, the whole of be read over to his testimony shall be read to or by him, in order that he may witness. verify, correct, or amend it. When the employment of a stenographer is authorized, witnesses may, at the discretion of the court, read over, out of court, their testimony as recorded and be called before the court to correct, amend, or pronounce it to be correct. (3) In recording corrections or amendments made by a witness, uo erasure or obliteration is under any circumstances to be admitted. The correction or amendment made, and any remark or explanation the witness may have to make, shall be separately and distinctly entered on the proceedings. Amendment of testimony, how recorded. Amendment, when allowed. Withdrawal of witness to be recorded. Prosecution closed. Accused as wit ness. (4) A witness who has approved his testimony may, even upon a subsequent day, be readmitted, at his request, for the purpose of correcting or amending the same. Defense closed. Written defense. 789. When the court has finished with a witness, he shall be directed to retire, and a minute shall be entered on the record to the effect that the witness withdraws, to show that two witnesses are not in court at the same time. Witnesses are also to be warned that they are not to converse on any matter pertaining to the pending trial during its continuance, but such warning shall not be given to a member, the judge advocate, the accused, or counsel, if any. 790. After the prosecution has closed no further evidence on its part shall be admitted except by special permission of the court. 791. The accused shall, at his own request, but not otherwise, be allowed to testify in his own behalf; but his failure to make such request shall not create any presumption against him. (Art. R-613.) Statement of accused not evidence. 792. (1) After the defense has closed no evidence on its part shall be admitted except by special permission of the court. (2) The accused shall be at liberty to make a statement in writing, or, if an official stenographer be present, orally, either in person or by counsel. This statement, if written, he shall submit to the court for inspection before it is publicly read, and, if it contains anything disrespectful, the court may prevent that part from being read; but the whole shall be appended to the proceedings, or recorded as a part thereof, if the accused desires it, and he shall be held responsible for the same. Reply of judge advocate. (3) The statement of the accused is a personal declaration or defense and can not legally be acted upon as evidence by the court. It has a threefold function: First, as a modification of the plea which must be considered by the court; second, as a summing up and closing argument for the defense, which may be considered by the court; and, third, as a plea for leniency which may not be considered by the court except in recommending the accused to the clemency of the revising authority. (4) Any averments or facts embraced in the statement may, of course, be proved by testimony, but unless so proved it is not within the province of the court to take judicial cognizance of them in determining the culpability or innocence of the accused. 793. The judge advocate, as prosecutor, has the right to reply to the defense in writing, or, if an official stenographer be present, orally, and shall be allowed time for this purpose if he require it. advocate, the court shall give him equal facilities with the counsel for Witnesses re 794. The court is at liberty at any stage of the proceedings, before 795. When the accused and the judge advocate have laid their SECTION 8.-FINDING AND Sentence. read. Trial finished. defense 801. The court shall then be closed, all persons except members Testimony withdrawing, and shall proceed to examine such part of the evidence and as may be indicated by the members, together with the arguments in the case. 802. (1) When the court has sufficiently examined the evidence, the president of the court shall put the question upon each specification of each charge, beginning with the first, whether the specification is "proved," "not proved," or "proved in part.' Vote on speel fications. Manner (2) Each member shall write "proved," "not proved," or "proved in part," and if "in part," what part, over his signature, and shall voting. hand his vote to the president of the court, who, when he has received all the votes upon such specification, shall read them aloud, being careful not to disclose whose vote he is reading. (3) No written minute of the votes shall be preserved, unless so ordered by the unanimous vote of the court. (4) The court shall deliberate and consider until a majority agrees upon a finding, which shall then be recorded. (5) When the accused has pleaded "guilty," the proper finding is, for the specification "proved by plea," and for the charge, simply "guilty." of Minute of votes not to be preserved. Finding specification. on Voting on the 803. (1) When the members have thus voted upon all the specifications of any charge, the question shall be put upon the charge to each charges. member: "Is the accused guilty of this charge?" "guilty in a less degree than charged?" or "not guilty?" The members, as before, shall write "guilty," or "not guilty," or "guilty in a less degree than charged," and in what degree, over their signatures, and hand their votes to the president; who shall, after receiving all the votes, read them aloud, and should there be a decision by the majority, shall record the result. If otherwise, the process shall be repeated until a decision is arrived at. (2) The court shall 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. Judge findings. advo 804. (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 degree cate to record than charged, upon any one of them, by the number of members which the law may require in the particular case, the judge advocate shall be called before the court and directed to record its findings, which he shall do under the court's direction, specifying precisely how far the accused has been found guilty of each charge, and shall enter the came on the record in his own handwriting. Should there be evidence of previous convictions, the court shall then be opened with all parties to the trial present, and evidence of such convictions received. (Art. R-617.) of Evidence previous convictions. except. (2) Evidence of previous convictions must refer to actual trials and Relate to curconvictions that have been approved by the authorities whose action rent enlistment, is requisite to give full effect to the sentence, except in cases upon which action has been withheld and the accused placed on probation. Evidence of previous convictions must relate to the current enlistment C. N. R. 3. of the accused, except when the last enlistment was terminated by the department, in which cases all convictions occurring in the prior sentence of court-martial or by discharge as undesirable by order of C. N. R. 5. Method voting. of Procedure when the first serving under extended enlistments, convictions occurring prior to (3) The court shall then be closed, and the members shall proceed 805. (1) Each member shall write down and subscribe the measure of punishment which he may think the accused ought to receive, and hand his vote to the president, who shall, after having received all the votes, read them aloud. (2) If the requisite number shall not have agreed upon the nature ballot is not de. and degree of the punishment to be inflicted, the president shall proceed in the following manner to obtain a decision: cisive. Court must 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 shall, 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. 806. The president, in collecting the votes, must bear in mind that acquit or con- the court is bound to exhaust the whole of the charges that come before vict of every allegation. it by expressly acquitting or convicting the accused of each allegation contained in the specification. Sentences, 807. Except in the case noted in article 50, Articles for the Governhow determined. ment of the Navy (art. R-50), the opinion of the majority is the opinion of the court, and the minority is bound 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. Adequate punishment be assigned. 808. (1) It is made by law the duty of courts-martial, in all cases of to conviction, to adjudge a punishment adequate to the nature and degree of the offense committed. Recommenda tion to clem ency. Court has not the (2) If mitigating circumstances have appeared during the trial, which could not be taken into consideration in determining the degree of guilt found by the verdict, the court may avail itself of such circum stances as adequate grounds for recommending the prisoner to clemency. (Art. R-811.) (3) The law does not vest in courts-martial the pardoning power, pardoning nor the right to adjudge nominal punishments equivalent to 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. 809. When a sentence has been determined upon, the judge advocate to draw up cate shall be called before the court and, under its direction, shall draw up the sentence, specifying the exact nature and degree of punishment adjudged and, after approval by the court, shall enter the same upon the record in his own handwriting. Judge advo sentence. Authentic a tion 810. The sentence having been recorded, the proceedings in each of judg- separate case tried by the same court are required by law to be signed by all the members present when the judgment is pronounced, and also by the judge advocate. Recommenda tion to ency. clem 811. After the sentence of a court has been decided on, it is competent for any of its members to move that the accused be 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 concurring in it. Completion of record. 812. 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 recorded, and this entry having been authenticated by the signatures of the president and the judge advocate, the record shall be forwarded by the president to the convening authority, or in the United States, Record to be where the court is convened by order of the department, direct to the sent to convening authority. Judge Advocate General. dissolved before 813. Should a court be dissolved by the convening authority for When court any sufficient cause, before it has proceeded to judgment, that fact, judgment. together with the proceedings of the court up to its dissolution, must be recorded and authenticated in the same manner as if the trial had been completed. Statutory pen 814. In all cases where the statute has designated a penalty for a particular offense, none other than that particular penalty may be im- alty. posed, and the court must pronounce the sentence which the law requires whenever the fact is proved. $15. In considering sentences to be imposed, and especially those involving death, imprisonment for life, and others not provided for by special penalty, the requirements of the Articles for the Government of the Navy and the limitations duly prescribed by the President of the United States for punishments in time of peace shall be carefully scrutinized and followed. Sentences must be neither cruel nor unusual, and must be in accordance with the common law of the land and customs of war in like cases. 816. (1) Sentences which include forfeiture of pay shall, in the case Limitations of sentences. Sentences to suspension from of officers, state the rate of pay and time of such forfeiture. Those rank, duty, or including suspension must state distinctly whether from rank or from pay. duty only. (2) When an officer's position on the Navy register will not permit of his being reduced in accordance with the prescribed limitations of punishments (art. 63, A. G. N.; art. R-63), the court should place him at the foot of the list, with the proviso that he is to remain in that position until he has 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) Sentences of general courts-martial in the cases of enlisted men of the Navy and Marine Corps which include confinement at hard labor will ordinarily be in the following form: "The court therefore sentences him, States United (to be reduced to the rating (or rank) of -), to be confined for a period of (then to be dishonorably discharged from the United States naval service), and to suffer all the other accessories of said sentence, as prescribed by the Navy Regulations." (5) The words "other accessories of said sentence" when used in the sentence of a general court-martial shall be understood to include the following: The person so sentenced shall perform hard labor while confined pursuant to such sentence, and after his accrued pay (and allowances in the case of an enlisted man of the Marine Corps) shall have discharged his indebtedness to the United States at the date of approval of such sentence, shall forfeit all pay (and in the case of an enlisted man of the Marine Corps sentenced to dishonorable discharge, all allowances) that may become due him during a period equivalent to the term of such confinement (or if sentenced to dishonorable dischrge during his current enlistment), except the sum of $3 per month during such confinement for necessary prison expenses, and if dishonorably discharged pursuant to such sentence, a further sum of $20 to be paid him when discharged. (6) Sentences of confinement at hard labor imposed by general courts-martial in the cases of enlisted men shall be executed in such Loss of num bers. Reduction in rating. Form of sentence. C. N. R. 5. Marines tenced to charge. C. N R. 5. Clothing sen- ject to modification by the Secretary of the Navy, may designate. (7) Nothing contained in the three preceding paragraphs shall be construed to restrict the power of a general court-martial in any case to sentence the accused to any punishment authorized by law. 817. (1) Marines sentenced by general courts-martial to dishonorable discharge should also be sentenced to forfeiture of all pay and allowances that may become due during their current enlistment, with the exceptions noted in article R-816-(5). Those not sentenced to dishonorable discharge should be sentenced to forefeiture of pay only, during a period equivalent to the term of confinement. When the dishonorable discharge is remitted, or is held in abeyance to be considered at the expiration of confinement in connection with reports of conduct in the meantime, that portion of the sentence imposing forfeiture of allowances which may become due during their current enlistment should similarly be remitted or held in abeyance. In case the conduct of the marine does not warrant the clemency shown by holding such discharge in abeyance, the dishonorable discharge will be carried into effect with forfeiture of accrued allowances, in accordance with the terms of the sentence. al (2) The clothing accounts of marines sentenced to dishonorable owance settled. discharge, when such discharges are not remitted or held in abeyance, shall, as soon as practicable, be settled by the proper officer of the Marine Corps, to include the day prior to the date on which the sentence takes effect, and the amounts overpaid or balances due shall be certified to the officer having the prison pay accounts. (3) When settlements, made in accordance with the preceding paragraph, produce an indebtedness to the United States for overdrawn clothing, the amount of such indebtedness will be charged in the pay account upon receipt by the officer having the prison accounts; when the settlement produces a balance due the marine for undrawn clothing the statement showing such balance will be held by the officer until final settlement of accounts for discharge and will then be incorporated therein. When a marine whose clothing account has been settled is restored to duty or the forfeiture of allowance in his case is remitted, any balance due him for undrawn clothing will be certified by the officer having his accounts to the proper accountable officer to be entered on the clothing account roll as a credit in his clothing account; those who were indebted for overdrawn clothing will be certified with "no balance." Issues to marine prisoners. Terms of im (4) Issues of clothing and small stores, made in accordance with the provisions of article R-4537, to marines sentenced to forfeiture of allowances and dishonorable discharge are proper charges against the appropriation "Pay, Miscellaneous," for the Navy. Payment for Marine Corps clothing made to such prisoners shall be effected by transfer of funds in the usual manner. Issues of Marine Corps clothing to marines serving sentences of general courts-martial, whose sentences do not involve loss of allowances and dishonorable discharge, shall be charged against their respective clothing allowances on the clothingaccount roll. 818. (1) A sentence of imprisonment must express distinctly for prisonment to be what period the same shall continue. defined. When confine (2) The term of confinement shall take effect from the date of apment is to begin, proval of the sentence. Should an unusual time elapse hetween the date of confinement of the accused for trial and the date of approval of the sentence, this period may be considered by the convening authority in acting upon the case. Should the sentence be to solitary confinement, or to confinement on reduced rations, the time of such conditioned confinement must be fulfilled unless such provision of the sentence be remitted or mitigated by the convening or higher authority, medical officer. (3) Whenever a general court-martial imposes a sentence of solitary confinement on bread and water or diminished rations, the provisions of articles R-619-(4) and R-621-(1) shall be observed. Certificate of May same inflict punish ments as sum- 819. General courts-martial are empowered by statute to inflict any of the punishments authorized for summary courts-martial. |