future, courts-martial should exercise a wise discretion as to the punishment they inflict. Every court is the exclusive judge of its own contempts.' 1 Ex. parte Nugent, 1 American Law Journal, 107. CHAPTER XI. FINDING. THE evidence being finished, and the defense made, the court is then cleared, and closed for deliberation and finding. The entire testimony, or any part of it, is read over by the judge-advocate, at the desire of the court, or a member thereof. In complicated cases it is better to have the whole testimony read over, but every court must be the judge of its necessity in each particular case. Recalling Witnesses After the case is finished and the court closed, it may, if it deem it necessary, recall any witness for the purpose of explaining discrepancies, or clearing up doubts in the minds of the members. In such cases the accused should always be present. The accused may himself be recalled for explaining points of his statement not clear. Deliberation For the purpose of arriving at a correct finding, due deliberation should be had before proceeding to a vote; and a full and free discussion with this intent is, therefore, generally entered into. If this discussion can be carried on by the members without disclosing their probable vote upon the general question of guilt, it is much better. From the deference that is paid in the army by juniors to their superiors, the older members should be extremely careful not to take advantage of this discussion to influence the junior members in their findings; while the junior members should remember, especially at this time, that they are acting as jurymen, and that, in maintaining an honest opinion they are doing simply what their oath requires, and in so doing will command the respect of their superiors. The members should bear in mind the oath which they have taken, "to well and truly try, and determine according to evidence." They must not decide facts on their personal knowledge; but should be in a state of legal ignorance of everything relating to the question in dispute before them until established by legal evidence or legitimate inference from it. No communication of a member or of the judge-advocate of facts within their personal knowledge, should be received at this time. a member of the court has knowledge of facts connected with the trial, he should ask to be sworn, and depose to these facts at the proper time. If Voting. After due deliberation, and when the court is ready to vote upon the finding, the judge-advocate proceeds to take the sense of the court, commencing with the first "specification" to the first "charge" and so on, in the same order in which the pleading was made. To obviate mistakes, and especially so where there are a number of specifications, it is best for the judge-advocate to read over each one before taking the vote. The manner of voting, which is the same on all questions before a court-martial, is prescribed by the Article of War. In giving their votes the members are to begin with the officer lowest in rank. The object of this is to prevent the judgment of superiors having too much influence with inferiors. The judge-advocate keeps the record of the vote, and announces the finding, which in all cases save one, is determined by a majority vote. Art. 96 provides that no 1 95th. person shall be sentenced to suffer death, except by the concurrence of two-thirds of the members of a general court-martial. As there are certain offenses for which the sentence of death is mandatory, it is held that the finding of "guilty" in such cases must be by a two-thirds majority; and this must appear on the record. Where a court consists originally of an even number, or by any circumstances becomes so reduced, and the vote upon a finding is equally divided, the accused has the benefit of such vote and should be declared "not guilty." The affirmative of any proposition can be adopted in a court-martial only by a majority vote, and all tie votes on the findings inure to the benefit of the accused.1 Care should be taken by the judge-advocate in recording the vote not to give any clue to the convening authority of the way in which any member voted. Where the record stated in the finding to a specification, "the vote was a tie and he is consequently not guilty," the Secretary of War held that "a tie vote on that issue was an acquittal and should have been recorded as a finding of 'not guilty." The state of the vote should never be expressed in the finding or sentence, except in cases where it is by law required to be stated. To say that the finding was unanimous, while it would not vitiate the proceedings, is irregular and is a violation of the oath, as it discloses the vote of every member. Manner of Voting. Courts-martial have different forms of voting upon and recording their sentences. The following are some of the forms met with in practice: The court "confirms the plea of the accused," or "confirms his plea and finds him guilty," or "is of the 1 G. C. M. O. 17, A. G. O. Sept. 15, 1871. 2 G. C. M. O. 1, A. G. O., Jan. 16, 1872. opinion that the accused is guilty." All these are sufficient, but for the sake of uniformity the following form is recommended when the finding is "guilty" or "not guilty." The court, having maturely considered the evidence adduced, finds the accused Regiment U. S. Infantry : Of the specification, "Guilty," or "Not Guilty." As the findings of courts-martial are frequently anomalous, and do not contain the actual sense of the court, it is recommended to every court to be extremely careful at this stage of their proceedings to see that their findings are consistent. The gist of many charges under a specific article, for example, lies in a single word. A single case will illustrate. A person was tried under the 55th Article for "maliciously destroying the property of an inhabitant of the United States," and the court found him "guilty" except the word "maliciously," and proceeded to sentence him. Such finding was held void as his action did not constitute an offense under this article-if it was not malicious. To find "not guilty" of a specification, but "guilty " of the charge, where there is a single specification, would be an absurdity.' Where the finding is guilty of the specification, but not guilty of the charge, or of any lesser kindred offense, there is nothing left upon which a sentence can rest. It is equivalent to finding that the state of facts set forth in the specification do not make out the specific offense charged.2 Where the evidence does not prove the averments set forth in the specifications, the accused is entitled to a 1 G. O. 95, Army of Potomac, March 6, 1862. Op. J. A. G. p. 179. 2 |