rule pertaining to a particular subject is unsettled, or where it i so technical or antiquated as to restrict or embarrass a thoroug investigation, the court may and should, in its discretion, adop such course in regard to the reception and employment of testi mony as justice-justice to the United States as well as to th accused-may appear to dictate.

CHAPTER XIX.

THE FINDING.

The Trial having been completed, and the arguments or statements, if any are made, being concluded, the court proceedsin general without any adjournment if the legal hours of session have not elapsed-at once to its Judgment, which consists. of the Finding and Sentence.' If indeed the case is one in which considerable evidence has been taken and the judge advocate has not been enabled to bring up his record, the court may in its discretion adjourn to afford him time for the purpose. So in any case of importance, it may properly take an adjournment before entering upon the responsible duty of the Finding.

The subject of the Finding will be considered under the heads. of-I. Mode and Rules of Procedure; II. Forms of Findings; III. Additions to the Finding.

I. MODE AND RULES OF PROCEDURE.

Clearing. The presiding officer forthwith announces that the court will be cleared for deliberation upon its findings; whereupon accused, counsel, clerks, reporters, guards, witnesses, spectators, and all other persons present, withdraw, leaving only the judge advocate with the court; and the doors are then closed-as indicated in Chapter XVII.

Deliberation. Before voting, the court, if deemed desirable, nay have the entire evidence read over to it by the judge advoate from the record. Commonly, however, it is found sufficient

1. If, after the evidence, or the evidence of the prosecution, is all in, he accused escapes from military custody and absconds, the court may roceed to judgment in the usual manner notwithstanding. See Trial y Military Commission of H. H. Dodd, Indiana, 1864; and compare ight v. State, 7 Ohio, 180; McCorkle v. State, 14 Ind. 39; State v. Vamire, 16 Id. 357.

to refer to the different portions of the testimony from time to time, as the members may desire to refresh their recollection as to particular facts.

Prior to the voting, discussion as to the merits of the case is sometimes engaged in by the members, but as such discussion, at this point, may perhaps exert an undesirable influence upon the views of the junior members, it is in general the preferable course, in order that all opinions may be as independent as possible, to reserve debate till the taking of a vote shall disclose differences necessary to be harmonized before a legal finding can be ar rived at.'

When discussion is had, it may be informal, but should be free, frank and open. Here, as in all other deliberations of the court, the principle of the perfect equality of the members should be observed, and a junior officer in rank or age be conceded the same right to declare his views as a senior. So, whatever opinions or views are expressed should be expressed to all-laid before the court. As is remarked by Bishop3 with regard to jurors—“If they do not spontaneously agree, they should confer together, each speaking in the hearing of all, not in clusters of two or three privately. Each should give due weight to the opinions of the others, but not concur in that to which he cannot bring his own judgment to consent."

Adjournment Pending Deliberation. In case of a pointed difference of opinion-as where, there being an even number of members, the vote upon a charge or specification is found to be a tie-a more extended deliberation may be considered desirable, and in such a case the court may adjourn and separate, to allow an interval for rest and reflection, or to enable the judge advocate or members to consult legal authorities or military precedents. Upon such an adjournment the members should not of course allow themselves to converse with or receive communica tions from other officers or persons in reference to the case under investigation. Making a personal communication to a juryman "is an indictable offence when such communication touches the subject matter of the trial, or it may be treated as a contempt of

1. See McNaghten, 115, and post under "Provision of Art. 95.” 2. See Tytler, 311; Kennedy, 182; Macomb, 58; De Hart, 1743. 1 C. P. $ 998 a.

court."'I

So, "it is a misdemeanor in a juryman knowingly to

permit such communications." 2

Disagreement. A deliberation need not of course be continued where, after repeated votes or comparison of views, the difference is found to be irreconcilable. In such a case the court, in lieu of coming to a formal finding, can only enter upon the record the fact that they are wholly unable to agree, and thus terminate the proceeding subject to the action of the reviewing authority.

Recalling Witnesses. It is held by Simmons3 that the court, during its final deliberation, may, to assist its conclusions, "recall a witness for the purpose of putting any particular question deemed essential.” He adds "The parties must necessarily be present, and cannot be refused permission to cross-examine or re-examine the witness to the extent of the question proposed by the court. The prisoner moreover must have the fullest opportunity of meeting the evidence." This view is repeated by some subsequent writers. Such course, however, has been most rarely pursued in our practice, and would now, if resorted to, be regarded as an exceptional irregularity. It need hardly be remarked that the material evidence in the case should, properly, be so fully and clearly set forth in the record of that part of the trial in which it was introduced as to render such a proceeding quite

unnecessary.

The Voting. This may be viva voce, but is commonly and preferably conducted by written, unsigned, ballots. The votesusually collected by the judge advocate-are taken, first upon the specification and then upon the charge, or, when there are several specifications, upon the same in order beginning with the first, and lastly upon the charge. Where there are several charges, the same proceeding is had as to each of the charges and its specification or specifications, separately, in the order of their number.

The Finding to be Complete. In military law a general verdict, (on all the charges, &c., together,) cannot properly be

1. Wharton, C. P. & P. §729. And see 1 Bishop, C. P. § 996. 2. Wharton, C. P. & P. § 721.

3. Courts-Martial §613.

4. O'Brien, 264; De Hart, 174.

rendered; there must be, in fact and of record, a separate and independent formal finding upon each specification and each charge. And where exceptions and substitutions are made, the accused must be acquitted or convicted on every part-every averment and particular-of each specification and charge. "The verdict," says Bishop, "should be a complete finding in due form upon the whole issue and all the issues." Such a finding indeed is necessary not only to perfect the judgment, but to protect the accused against a second trial for any of the offences set forth in the pleadings.

Where the charge is a joint one, there must similarly be separate and distinct votings and findings as to each of the joint accused.

Provision of Art. 95. It is provided by the 95th Article of war that "Members of a court-martial, in giving their votes, shall begin with the youngest in commission." Accordingly the judge advocate, in taking a vote, calls first upon the junior member, then upon the next senior, and so on to the president. This provision-one of the oldest in our military laws-was enacted no doubt upon the theory that the voting would be viva voce and open, and the reason which has been assigned for it is that the junior members, if required to vote first, will be less liable to be influenced by the opinions of their seniors. Where however the voting, as it more usually is at this stage, is by written ballot. the reason of the statute scarcely applies: it is rather as to the voting upon interlocutory questions that the rule is important to be observed.

Every Member Must Vote. All the members must join in the finding upon every charge and specification. A failure to vote would be a neglect of the duty impliedly enjoined by the order detailing the member upon the court, and also a violation in substance of his oath in which he swore 'well and truly to try

1. Simmons $620; Kennedy, 185.

2. See post-"Partial Findings."

3. That the findings must "exhaust" the specifications and charges. see McNaghten, 195; O'Brien, 264; De Hart, 180; DIGEST, 262, 263. 4. I C. P. § 1004.

5. It appears in the Code of Articles of James II, (1688.)