Chapter 15.
Findings

101. CLOSING OF COURT AND DELIBERATION. After all the evidence has been received and the arguments and statements have been made, the court closes to determine its findings. Before voting, the members of the court may desire to discuss the evidence and the merits of the case. So that no member's opinion will be influenced by superiority in rank, the members should express their views in inverse order of rank, beginning with the junior member. Discussion should be frank and informal, but it should not take the form of members stating how they intend to vote. The requirement for voting by secret written ballot (AW 31) is to prevent any member being unduly affected by the decision of other members.

102. VOTING PROCEDURE. After the discussion is completed, the junior member of the court distributes a ballot to each member. The court will vote first on the specification, or specifications,and then on the charge. If there are two or more charges, the court will vote first on the specifications to Charge I, then on Charge I, next on the specifications to Charge II, then on Charge II, etc. The necessity of voting on the specification before voting on the charge is clear. It cannot very well be decided that the accused has violated the Article of War set out in the charge until it has first been determined whether he did the acts alleged in the specification. After each vote, the junior officer collects the ballots and counts them in the presence of the president, who verifies his count and announces the result to the court.

103. NUMBER OF VOTES REQUIRED. To find an accused guilty of any charge or specification, a two-thirds bots of the members present at the time the vote is taken is sufficient in every case except for a conviction of spying in violation of AW 82. For that offense a unanimous vote is necessary for conviction. AW 43 required unanimity for conviction of "an offense for which the death penalty is made mandatory by law" and violation of AW 82 is the only such offense. All other convictions, even for offenses for which the death penalty may be imposed, such as wartime desertion, mutiny, sleeping on post, or murder or rape, require only a two-thirds vote. In determining how many votes are needed to

make the required two-thirds, a fraction is counted as one. Thus, assumed that eight members are present at the time of voting, six votes would be necessary to convict. Two-thirds of 8 is 5¹/3, but since the ¹/3 counts as a whole vote, the requirement for two-thirds is not met unless six member concur. Unless two-thirds of the members (or in the case of spying all the members) vote to find the accused guilty of a specification or charge, the accused is acquitted of that specification or charge. The court may, however, take as many ballots on any specification or charge as it sees fit, the final result not being conclusively determined by the first ballot. For example, if on the first ballot only five of nine members present voted to find the accused guilty of a specification, the court could, if it saw fit, vote again on the same specification and if 6 members then voted to find the accused guilty, the accused would be convicted. Conversely, if the required two-thirds voted to find the accused guilty, it would be possible to take another vote upon which less than two-thirds might be obtained. In short, the court may reconsider its findings, vote again, and come to a different result at any time until it has announced its findings or has received evidence of previous convictions (par. 78g, MCM).
104. DUTIES OF MEMBERS IN VOTING. Every member must vote on each specification and charge. A refusal or failure to vote would be a neglect of duty and thus a military offense. Each member of the court has sworn to determine the case "according to the evidence" and "without partiality, favor or affection" (AW 19). In deciding on the guilt of the accused, he must not consider any matter which has not properly been placed before the court, nor may he take into account any previous knowledge or opinion he may have had as to the accused. Every accused is presumed to be innocent until his guilt is proved beyond a reasonable doubt (112a, MCM). As to each offense charged, therefore, the prosecution must establish beyond a reasonable doubt each element of the offense and that the accused was the person who committed it (par. 78a, MCM). Thus, of on a trial for willful disobedience in violation of AW 64 a reasonable doubt existed as to any of the facts which must be established, i.e., that the accused received the command in question, or that the officer giving it was his superior officer,or that the accused disobeyed it, or that his disobedience was willful, the court could not find the accused guilty. The requirement for proof beyond a reasonable doubt, however, does not mean that the prosecution must prove with absolute mathematical certainty that the accused is guilty. No matter how clear the testimony, there is almost always some possibility that the accused may be innocent. The question each member must ask himself is whether in view of all the evidence, he, as a reasonable man, has any substantial, sensible and conscientious doubt as to the guilt of the accused.

105. TYPES OF FINDINGS ON SPECIFICATIONS.

     1. In general. The most common findings on a specification are "Guilty" or "Not Guilty." The court, however, may also find the accused guilty with exceptions, or guilty with exceptions and substitutions.

     2. Findings with exceptions. The evidence may establish that the accused is guilty of a part of a specification but not of the balance, or guilty of the substance of a specification but not of certain details alleged. In such a case, the court may find the accused guilty of the specification with the exception of the part not proved. For example, if a specification for larceny alleged that the accused stole "one billfold, value about $2, and one fountain pen, value about $4.50, property of Private Walter Buntz," and the evidence proved merely that the accused stole Private Buntz's billfold, the court should convict him of stealing the billfold but not the fountain pen. It would do this by finding him guilty of the specification with the exception of the words in the specification relating to the fountain pen, as follows:

        Of the specification: Guilty, except the words "one fountain pen, value about $4.50," of the excepted words, not guilty.

     3. Findings with exceptions and substitutions. The court is not limited, however, merely to finding the accused guilty with exceptions. Where certain allegations in a specification are not exactly established, the court may not only except such allegations but substitute the true details shown by the evidence. If, therefore, the names of persons, dates, or places, descriptions of articles, sums of money, etc., which are set out in a specification are shown by the evidence to be incorrect, the court in its findings on the specification should except such statement, substitute the correct facts shown by the evidence, and find the accused not guilty of the excepted words but guilty of the substituted words. For example, if a specification alleged that the accused stole "one gold watch, value about $85," and the evidence established that, although he stole the gold watch, it value was only $13, the court in its findings on the specification would except the figures "$85" and substitute the figures "$13," as follows:

        Of the specification: Guilty, except the figures "$85," substituting therefor the figures "$13"; of the excepted figures, not guilty, and of the substituted figures, guilty.

        The poiwer to make exceptions and substitutions does not authorize the court, however, to find the accused guilty of a different or greater offense then was charged. For example, if the specification alleged that the accused stole a watch and the evidence showed that he stole a fountain pen, the court could not be exceptions and substitutions find him guilty of stealing the latter article since that is a different offense. Similarly, if the specification alleged that he stole a watch of a value of $15 (for which a sentence of 6 months confinement can be imposed), he could not

by exceptions and substitutions be found guilty of stealing a watch of a value of $55 (for which a sentence of 5 years' confinement might be imposed), since the latter is a greater offense.
106. LESSER INCLUDED OFFENSES. The evidence in a case may fall short of proving all the elements of the offense charged but may prove that the accused committed a less serious offense which is necessarily included in the offense charged. For example, to prove desertion it is necessary to establish (1) that the accused absented himself without leave and 92) that he had the intent to desert. The offense of absence without leave is, therefore, necessarily included in desertion. To prove robbery it is necessary to establish (1) that the accused stole certain property and (2) that he did so by force and violence or by putting the owner in fear. Larceny (the stealing of the property) is, therefore, necessarily included in robbery. Where the offense described in the specification is not fully proved, but it is shown that the accused committed a lesser included offense, the court by exceptions and substitutions should find the accused not guilty of the offense set out in the specification, but guilty of the less serious offense established by the evidence. If the court's finding on the specification is simply "not guilty," the accused will be acquitted, not merely of the major offense, but of all minor offenses necessarily included in it. A finding of not guilty on a specification alleging desertion, for example, will bar any subsequent trial for absence without leave (par. 68, MCM). Before finding an accused not guilty, the court shall consider whether the commission of any lesser included offense has been proved. Some of the more common examples of lesser included offenses are listed in appendix 8, infra. The method of finding an accused guilty of a lesser offense is to except from the specification the inappropriate words and substitute the necessary appropriate words. For example, if an accused were tried under a specification alleging larceny in the usual form (app. 4, Form 94, MCM), and the court desired to find him guilty only of the lesser included offense of wrongfully taking the property, it would be necessary to except the words indicating that the accused stole the property and substitute words showing simply a wrongful taking. This would be done as follows:

     Of the specification: Guilty, except the words "feloniously take, steal, and carry away," substituting therefor the words "wrongfully take and carry away," of the excepted words not guilty, of the substituted words guilty.

     Although the court by exceptions and substitutions may always convict of a lesser included offense, it has no power to find a greater offense nor an offense of a different nature than that charged, since no one can be convicted of an offense of which he has not been notified and which he has had no opportunity to defend. Thus, of charged with absence without leave, he cannot be found guilty of the greater offense of desertion; if charged with larceny, he cannot be convicted of the greater

offense, robbery. Similarly, a finding of a different offense, as, for example, embezzlement on a charge of larceny, or wrongful pledging of property on a charge of wrongful sale, may not be made.
107. FINDINGS AS TO CHARGES. After arriving at its findings on the specification or specifications under a charge, the court must then make a finding on the charge itself. A finding on the charge is essential. Where the accused has been found not guilty of the specification under a particular charge, or of all specifications if there are more than one, the only possible finding on the charge itself is "not guilty." Since the accused was not guilty of doing the acts alleged in the specification, he did not violate the Article of War set out in the charge. If, however, the accused is found guilty of the specification of specifications, the finding on the charge should be "Guilty." Thus, if the accused is tried on a charge of violating the 58th Article of War and on a specification alleging that he deserted the service of the United States, and heh is found guilty of the specification, he must be found guilty of the charge--i.e., of violating the 58th Article of War. Since that article denounces desertion, one who deserts necessarily violates it. To find an accused guilty of a charge, it is necessary only that he be found guilty of one specification which describes an accused were charged with violating the 93d Article of War and there were three specifications under that charge each alleging a different larceny, he must be found guilty of the charge if he is found guilty of one specification, even if he is found not guilty of the other two specifications. Larceny is a violation of AW 93, and an accused who has committed one larceny is as guilty of violating that Article as if he had committed, three, fifteen, or one hundred. Similarly, if under a charge of violating AW 93 there were three specifications, the first alleging robbery, the second alleging mayhem and the third alleging arson, and the accused were found guilty of the third specification only, the finding on the charge must be guilty because arson is an offense denounced by AW 93. In such case, the findings would read as follows:

     Of Specification 1 of the Charge: Not Guilty
     Of Specification 2 of the Charge: Not Guilty
     Of Specification 3 of the Charge: Guilty
     Of the Charge: Guilty

     By making exceptions and substitutions in its findings on a specification, the court may have caused the specification to allege an offense which is not covered by the Article of War referred to in the Charge. In such a case, the court must find him not guilty of the Article of War referred to in the Charge, but guilty of the Article of War which covers the new offense of which he has been found guilty. For example, assume a charge of violating the 58th Article of War, and a specification alleging that the accused deserted the service. If on the specification the court by exceptions

and substitutions found the accused guilty only of the lesser included offense of absence without leave, it could not find him guilty of the Charge. Absence without leave is not a violation of AW 58, but of AW 61. The court's finding on the charge in such case should read as follows:

Of the Charge: Not guilty, but guilty of a violation of the 61st Article of War.

108. FINDINGS AS TO JOINT ACCUSED. If two or more accused are charged jointly, separate findings on each specification and charge must be made as to each accused.Thus, if Privates Timothy Binz and Roderick Random were jointly charged with robbery and were found guilty of the specifications and the charge, the findings should should be made in this form:

     As to Private Roderick Random--

     Of the Specification of the Charge: Guilty
     Of the Charge: Guilty

     As to Private Timothy Binz--

     Of the Specification of the Charge: Guilty
     Of the Charge: Guilty

     If one or more of joint accused is acquitted and one or more convicted, the findings should by proper exceptions eliminate the words showing that the person acquitted jointly participated in the offense. Thus, if in the trial of Privates Binz and Random, the former was found not guilty and the latter guilty, it would be necessary in making the finding as to Random to except the reference to Binz and the words indicating that the offense was joint. The finding in such case would be in the following form:

     As to Private Timothy Binz--

     Of the Specification of the Charge: Not Guilty.
     Of the Charge: Not Guilty.

     As to Private Roderick Random--

     Of the Specification of the Charge: Guilty, except the words "Private Timothy Binz, Company C, 143d Infantry," and "acting jointly and in pursuance of a common intent," of the excepted words, not guilty.
     Of the Charge: Guilty.

109. PROCEDURE AFTER VOTING ON FINDINGS. After the findings have finally been determined, the court will be opened. If the accused has been found not guilty of all specifications and charges, the president will at once announce that he has been acquitted. (AW 29). If, however, he has been found guilty of any offense, the court will make no announcement of its findings, but will call on the trial judge advocate the read the data as to the age, pay, and service of the accused shown on the first page of the charge sheet and to offer any evidence of previous convictions (par. 79a, MCM, and app. 1, this manual). This information is to be considered by the court in fixing the appropriate sentence in much the same way a judge in a criminal court may take into account a defendant's previous

criminal record and other factors disclosed by the probation officer before imposing sentence. After reading the data from the charge sheet the trial judge advocate should ask the accused if the statement is correct. As already indicated, this data should have been carefully checked before trial, so there should be no inaccuracy or lack of completeness. In the very rare case in which defects may be pointed out, the correct data may be stipulated to or may be proved by taking evidence of the point (par. 79b, MCM). The trial judge advocate will then read to the court any evidence of previous convictions by courts-martial and introduce in evidence as an exhibit the extract copy of the service record of the accused or other proof (such as the court-martial order or record of trial itself) of the convictions. The convictions which may be considered for this purpose are discussed in paragraph 29, supra. At this stage the accused may introduce evidence of the character given him on any former discharges from the military service.

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