Chapter XIII.


Inquiry Into Sanity of Accused--Pleas--Motions--Nolle Prosequi--Action On Defective Specification--Action Where Evidence Indicates an Offense Not Charged

  1. COURTS-MARTIAL--PROCEDURE-Inquiry into Sanity of Accused.--The court will inquire into the existing mental condition of the accused whenever at any time while the case is before the court it appears to the court for any reason that such inquiry ought to be made in the interest of justice. Reasons for such action may include anything that would cause a reasonable man to question the accused's mental capacity either to understand the nature of the proceedings or intelligently to conduct or to cooperate in his defense. For instance, the actions and demeanor of the accused as observed by the court or the bare assertion from a reliable source that the accused is believed to be insane may be a sufficient reason. It should be remembered, however, that while a person who is insane to the extent indicated above should not be tried, nevertheless, until the contrary is shown, a person is presumed to be sane, and a mere assertion that a person is insane is not necessarily and of itself enough to impose any burden of inquiry on the court.

    The request, suggestion, or motion that such an inquiry be had may be made by any one of the personnel of the court, prosecution, or defense. If such an inquiry is determined upon, priority will be given to the determination of the matter, and the inquiry should exhaust all reasonably available sources of information with respect to the mental condition of the accused. If it appears that such inquiry may be a long and expensive proceeding, or if the court desires to hear competent expert testimony, the court may adjourn and report the matter to the appointing authority with its recommendation in the premises. Such recommendation may include in a proper case a recommendation that the accused be examined as indicated in 35c, and that the officer or officers, or some of them, conducting the examination be made available as witnesses.

    If the court finds that the accused is insane, the proceedings so far as had embodying the finding to that effect will be forwarded to the reviewing authority; otherwise the trial proceeds.



    1. General matters.--Pleas in court-martial procedure include plea to the jurisdiction, plea in abatement, plea in bar of trial, and pleas to the general issue. The first three are known as special pleas.

      One plea may be entered as applicable to all or to certain specified charges and specifications; e. g., "Not guilty to all charges and specifications." The court should ordinarily grant an application not manifestly made in bad faith to change or modify a plea.

      The court may reconsider its action in overruling or sustaining a special plea as long as the case is before the court.

      The overruling of a special plea does not prevent the entering of another or other special pleas to the same specification or charge, but if practicable special pleas should be entered in the order in which they are stated above.

      Except as otherwise indicated in the discussion of special pleas, an accused mill not be asked or required to plead further to a specification or charge as long as the action of the court in sustaining a special plea thereto stands; but when all the special pleas entered to a given charge or specification are overruled, the accused should plead to the general issue. With reference to a refusal to plead, see 70 (Pleas to the general issue).

      Notwithstanding the action of the court on special pleas or other similar objections, the trial may proceed in the usual course as long as one or more specifications and charges remain as to which a plea to the general issue may be made or stands. For example, when pleas in bar are sustained to all but one specification and charge, to which the plea is not guilty, the trial on that specification and charge may continue. But where, as a result of the action of the court on special pleas or other similar objections, the trial can not proceed further, the court adjourns and submits the record of its proceedings as far as had to the reviewing authority. If the reviewing authority disagrees with the court, he may return the record to the court with a statement of his reasons for disagreeing and with instructions to reconvene and reconsider its action with respect to the matters as to which he is not in accord with the court. To the extent that the court and reviewing authority differ as to a question which is merely one of law, such as a question as to the jurisdiction of the court, the court will accede to the views of the reviewing authority; and the court may properly defer to such views in any case. The order returning the record should include an appropriate direction with respect to proceeding with the trial. If the reviewing authority does not wish to return the record, he will take other appropriate action.

      A special plea should briefly and clearly set forth the nature and grounds of the objection which it is intended to raise. The substance


      of the plea and not the designation given to it will control; for instance, if an accused enters a plea, which he calls a plea in abatement, but which in fact raises an objection to trial on jurisdictional grounds, the plea will be considered as a plea to the jurisdiction.

      Except as otherwise indicated in the discussion of special pleas, the burden of supporting a special plea by a preponderance of proof rests on the accused. With the same exception, a plea to the general issue may be regarded as a waiver of any objection then known to the accused which is not asserted by a special plea. Thus, a plea to the general issue may be regarded as waiving an objection based on a misnomer of the accused, whether under an alias or otherwise. Any objection which might be asserted by a special plea, may if not asserted be brought to the attention of the accused by the court.

      Before passing on a contested special plea the court will give each side an opportunity to introduce evidence and make an argument. A decision on a special plea is a decision on an interlocutory question.

      Except as to matters covered by a plea of guilty, a plea admits nothing as to the jurisdiction of the court and nothing as to the merits of the case. Any admission involved in a plea of guilty to any offense has effective existence as such only as long as that plea stands.

      The accused has a perfect legal and moral right to enter a plea of not guilty even if he knows he is guilty. This is so because his plea of not guilty amounts to nothing more than a statement that he stands upon his right to cast upon the prosecution the burden of proving his alleged guilt.

    1. Inadmissible pleas.--Such objection as that the accused, at the time of the arraignment, is undergoing a sentence of a general court-martial; or that, owing to the long delay in bringing him to trial, he is unable to disprove the charge or to defend himself; or that his accuser was actuated by malice or is a person of bad character; or that he was released from arrest upon the charges, are not proper subjects for special pleas, however much they may constitute grounds for a continuance, or affect the questions of the truth or falsity of the charge, or of the measure of punishment. The same is true in general as to objections that are solely matters of defense under the general issue. (Winthrop.)

  1. COURTS-MARTIAL--PROCEDURE--Pleas--Plea to the jurisdiction.--This plea may be based on an absence of any of the conditions stated in 7. An objection to which a plea to the jurisdiction is applicable can not be waived and may be asserted at any time.

  2. COURTS-MARTIAL--PROCEDURE--Pleas--Pleas in abatement.--A plea in abatement is one that operates merely to delay the trial and


    is based upon some objection to a charge or specification in matters of form only; such as an objection to the specification as inartificial, indefinite, or redundant; or as misnaming the accused; or as containing insufficient allegations of time or place.

    If the plea is sustained, the court will, according to circumstances, either direct that the specification be stricken out and disregarded or permit the specification to be amended so as to obviate the objection. In the latter event an application of the defense for a reasonable continuance should be granted unless it is obvious that a denial of the application will not injuriously affect the substantial rights of the accused.

  1. COURTS-MARTIAL--PROCEDURE--Pleas--Pleas in bar of trial; statute of limitations.--Exemption from liability to be tried or punished by a court-martial for all but a few crimes or offenses may be claimed after two (or three) years with certain limitations. See A.W. 39, App. 1, and notes thereunder.

    The period of limitation begins to run on the date of the commission of the offense. Absence without leave (A.W. 61); desertion (A.W. 58); and fraudulent enlistment (A.W. 54) are not continuing offenses and are committed, respectively, on the date the person so absents himself, or deserts, or first receives pay or allowances under the enlistment.

    In applying this statute the court will be guided by the crime or offense as described in the specification, and not by the Article of War stated in the charge under which the specification is placed. Thus, where an offense properly chargeable under A.W. 93 is erroneously charged under A.W. 96, the limitation is three instead of two years.

    If it appears from the charges themselves that the statute has run against an offense charged or (in the case of a continuing offense), a part of an offense charged, the court may bring the matter to the attention of the accused and advise him (through the president, or the law member, if the president so directs) of his right to plead the statute. This action should, as a rule, be taken at the time of arraignment.

    With respect to pleading this statute in bar of punishment, see 78a (Statute of limitations).

    The burden is not on the defense to show that neither absence nor other impediment prevents the accused from claiming exemption under A.W. 39. For example, if it appears from the charges in a peace-time desertion case that more than three years have elapsed between the date of the commission of the offense and the date of arraignment, the plea should be sustained, unless the prosecution shows by a preponderance of evidence that the statute does not apply


    owing to the existence of periods which under the second proviso of A.W. 39 are to be excluded in computing the three years.

  1. COURTS-MARTIAL--PROCEDURE--Pleas--Pleas in bar of trial; former trial.--No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority, shall have taken final action upon the case. (A.W. 40.)

    A person has not been "tried" in the sense of A.W. 40 if the proceedings were void for any reason, such as a lack of jurisdiction to try the person or the offense.

    The same acts constituting a crime against the United States can not, after acquittal or conviction of the accused in a civil or military court deriving its authority from the United States, be made the basis of a second trial of the accused for that crime in the same or in another such court without his consent. The civil courts in the Territories and in Puerto Rico, the Canal Zone, and the Philippine Islands, as well as the district and other courts of the United States, derive their authority from the United States. The same acts when committed in a State may constitute two distinct offenses, one against the United States and the other against the State. In such a case trial for either does not bar trial for the other.

    In general, once a person is tried in the sense of A.W. 40 for an offense, he can not without his consent be tried for another offense if either offense is necessarily included in the other. Thus, a trial for manslaughter may be pleaded in bar of trial for the same homicide charged as murder, and the trial of an enlisted man for absence without leave (A.W. 61) bars trial for the same absence charged as desertion and vice versa if the same enlistment is involved in both cases. Thus, when a soldier deserts and reenlists, trial for absence without leave or desertion from the second enlistment does not bar trial for desertion from the first enlistment although the same period of time may in part be involved in both cases.

    Subject to the rules as to documentary evidence, including the rules as to the use of copies, proof of former trial by court-martial and civil court may be, respectively, by the order publishing the case (or by the record of trial if no order was published or the order is not sufficiently explicit), and by the indictment and record of conviction or acquittal.

  2. COURTS-MARTIAL--PROCEDURE--Pleas--Miscellaneous pleas in bar of trial.

    1. Pardon.--A pardon is an act of the President which exempts the individual on whom it is bestowed from the punishment


      the law inflicts for a crime he has committed. A pardon may be pleaded in bar of trial. The usual rules as to documentary evidence apply to a written pardon, whether in the nature of an individual pardon, or of a general amnesty, or the like. If the document is not sufficiently explicit to determine whether or not the plea should be sustained, other evidence must be introduced to fill the gap. In the case of a constructive pardon, facts and circumstances constituting such pardon must be proved.

    1. Constructive Condonation of Desertion.--An unconditional restoration to duty without trial by an authority competent to order trial may be pleaded in bar of trial for the desertion to which such restoration relates.

    2. Former Punishment.-Punishment under the 104th Article of War may be pleaded in bar of trial. Such punishment, however, does not bar trial for another crime or offense growing out of the same act or omission. For instance, punishment under A.W. 104 for reckless driving would not bar trial for manslaughter where the reckless driving caused a death.

    3. Promised Immunity.--See 120d (Testimony of accomplices) .

  1. COURTS-MARTIAL--PROCEDURE--Pleas--Pleas to the general issue.--These pleas include the following: Guilty, not guilty; and pleas corresponding to permissible findings. See 78 (Bindings).

    Should an accused enter a contradictory plea such as guilty without criminality or guilty to a charge after pleading not guilty to all specifications thereunder, such contradictory plea will be regarded as a plea of not guilty.

    The court shall proceed to trial and judgment as if he had pleaded not guilty when an accused fails or refuses to plead or answers foreign to the purpose. (A.W. 21.) See 63 in this connection.

    A plea of guilty does not exclude the taking of evidence, and in the event that there be aggravating or extenuating circumstances not clearly shown by the specification and plea, any available and admissible evidence as to such circumstances should be introduced.

    Whenever it appears to the court that a plea of guilty may have been entered improvidently or through lack of understanding of its meaning and effect, or whenever an accused, after a plea of guilty, makes a statement to the court, in his testimony or otherwise, inconsistent with the plea, the president or the law member, if so directed by the president, will make such explanation and statement to the accused as the occasion requires. If, after such explanation and statement, it appears to the court that the accused in fact entered the plea improvidently or through lack of understanding of its meaning and effect, or if after such explanation and statement the accused


    does not voluntarily withdraw his inconsistent statement, the court will proceed to trial and judgment as if he had pleaded not guilty. (A.W. 21.) Occasion for making such explanation and statement frequently arises in the ordinary desertion case, where the accused, after pleading guilty, testifies or states in effect that throughout his unauthorized absence he had the intention of returning.


    1. General.--Three motions are discussed below, but others may be made for the purpose of making a request or of raising an objection or an interlocutory question. If a motion amounts in substance to an application for a continuance, or to a challenge, plea, or other matter for which a procedure is provided, such motion will be regarded as such application, challenge, plea, or other matter. A motion to elect--that is, a motion that the prosecution be required to elect upon which of two or more charges or specifications it will proceed--will not be granted. A motion should briefly and clearly set forth the nature of and the grounds for the request, objection, or question it is intended to make or raise. A motion admits nothing either as to the jurisdiction of the court or the merits of the case.

    2. Motion to sever.-A motion to sever is a motion by one of two or more joint accused to be tried separately from the other or others. It will regularly be made at the arraignment. The motion should be granted if good cause is shown; but in cases where the essence of the offense is combination between the parties--conspiracy, for instance--the court may properly be more exacting than in other cases with respect to the question whether the facts shown in support of the motion constitute a good cause. The more common grounds of this motion are that the mover desires to avail himself on his trial of the testimony of one or more of his coaccused, or of the testimony of the wife of one; or that a defense of the other accused is antagonistic to his own; or that the evidence as to them will in some manner prejudice his defense. (Winthrop.)

      If the motion is granted, the court will first decide as to which accused the court will proceed to trial, and will then direct an appropriate amendment of the charges. For instance, if after severance the trial of B is directed in a case where A and B are charged with an offense, the specification should be amended so as to allege in effect either that B committed the offense or that B committed the offense jointly with A. The amendment should be formally made as a part of the proceedings, no actual alteration being made in the charge sheet itself. For an example see form of record, App. 6. Where, as a result of action on a motion to sever, trial of one or more accused is deferred, the facts will be reported at once to


      the appointing authority by the trial judge advocate in order that such authority may take appropriate action with a view to the trial of such accused by another court, or other disposition of the charges as to such accused.

    1. Motion to strike out.--By this motion the accused may object to the sufficiency of a specification on the ground that it does not state any crime or offense; or that, because of some other substantial defect, the accused is actually prevented from making a proper plea or defense--for example, that it does not fairly apprise the accused of the offense intended to be charged.

      Ordinarily this motion should be made upon arraignment. If sustained the court will direct that the specification be stricken out and disregarded. See 64a (General matters as to pleas), 72 (Nolle prosequi) ,and 73 (Action on defective specification).

    2. Motion for findings of not guilty.-At the close of the case for the prosecution and before the opening of the case for the defense the court may, on motion of the defense for findings of not guilty, consider whether the evidence before the court is legally sufficient to sup-port a finding of guilty as to each specification designated in the motion. The court in its discretion may require that the motion specifically indicate wherein the evidence is legally insufficient. The court will determine the matter as an interlocutory question. (See 51.) If there be any substantial evidence which, together with all reasonable inferences therefrom and all applicable presumptions, fairly tends to establish every essential element of an offense charged or included in any specification to which the motion is directed, the motion as to such specification will not be granted. The court in its discretion may defer action on any such motion as to any specification and permit or require the trial judge advocate to reopen the case for the prosecution and produce any available evidence. If the motion is sustained as to any specification the court will forthwith enter a finding of not guilty of such specification and where necessary of the proper charge.

  1. COURTS-MARTIAL--PROCEDURE--Nolle Prosequi.--A nolle prosequi is a declaration of record by the prosecution to the effect that by direction of the appointing authority the prosecution withdraws a certain specification, or a certain specification and charge, and will not pursue the same further at the present trial. A nolle prosequi will be entered only when directed by the appointing authority, who may give such direction either on his own initiative or on application duly made to him. In a joint case he may limit the direction to one or more of the accused.

    Proper grounds for such direction include: Substantial defect in the specification; insufficiency of available evidence to prove the


    specification; and the fact that it is proposed to use one of the accused as a witness.

    A nolle prosequi is not in itself equivalent to an acquittal or to a grant of pardon and is not a ground of objection or of defense in a subsequent trial. It may be entered either before or after arraignment and plea.

    As to withdrawal of charges, see 5 (Appointing authorities).

  1. COURTS-MARTIAL--PROCEDURE--Action on Defective Specification.--If a specification, while defective, is nevertheless sufficient fairly to apprise the accused of the offense intended to be charged, the court upon the defect being brought to its attention will, according to circumstances, direct the specification to be stricken out and disregarded, or continue the case to allow the trial judge advocate to apply to the convening authority for directions as to further proceedings in the case, or permit the specification to be so amended as to cure such defect, and continue the case for such time as in the opinion of the court may suffice to enable the accused properly to prepare his defense in view of the amendment. The court may proceed immediately with the trial upon such amendment being made, if it clearly appears from all the circumstances before the court that the accused has not in fact been misled in the preparation of his defense and that a continuance is not necessary for the protection of his substantial rights. See in this connection 64a (General matters as to pleas).

  2. COURTS-MARTIAL--PROCEDURE--Action Where Evidence Indicates an Offense Not Charged.--If at any time during the trial it becomes manifest to the court that the available evidence as to any specification is not legally sufficient to sustain a finding of guilty thereof or of any lesser included offense thereunder, but that there is substantial evidence, either before the court or offered, tending to prove the guilt of the accused of some other offense not alleged in any specification before the court, the court may, in its discretion, either suspend trial pending action on an application by the trial judge advocate to the appointing authority for directions in the matter or proceed with the trial. In the latter event a report of the matter may properly be made to the appointing authority after the conclusion of the trial.

    Instances of occasions for applying this rule would be where in a trial for the larceny of a watch the proof shows that the article taken was a compass; and where in a trial for the wrongful sale of property (A.W. 84) the proof shows that the accused negligently lost the property.


Table of Contents
Previous Chapter (12) *  Next Chapter (14)

Transcribed and formatted for HTML by Patrick Clancey, HyperWar Foundation