may add such recommendation-as that the accused be discharge from the service, or committed to the Government Asylum-a may seem to be called for.1 Limitation of the authority. But-it may here be noted— while the court may sometimes properly recommend or suggest action to the reviewing commander, it may not itself assume to take action pertaining to his province. Thus where the cour in acquitting a soldier, directed that he "be discharged from arrest and returned to duty with his regiment," this addition was properly disapproved as transcending the authority of a courtmartial.2 1. See Simmons § 590; Kennedy, 195; O'Brien, 266; G. O. 46 c2 1824; Do. 36 of 1825; Do. 20, Western Dept., 1861; Do. 52, Dept. c. the Gulf, 1862. 2. G. O. 60, Army of the Potomac, 1861. CHAPTER XX. SENTENCE AND PUNISHMENT. The Finding having been completed, and having resulted in a conviction upon the Charge or upon some one at least of the Charges where there are several,-or in a conviction of a lesser offence included in one charged,-the court next proceeds to adjudge the Sentence, i. e. to affix a penalty or penalties for the offence or offences found.' The subject of this Chapter will be conveniently presented under the following heads : I. The Course of Proceeding. II. Classification of Sentences. III. Principles governing the imposing of discretionary sen tences. IV. Principles governing the framing and substance of the sentence in general. V. The specific punishments separately considered. VII. Remarks with Sentence, and Recommendation. I. THE COURSE OF PROCEEDING. Voting and Deliberation. Where the Article or Articles of war, under which the accused has been convicted, is or are mandatory in expressly requiring a certain punishment or punishments specified to be imposed upon conviction, the office of the 1. The term "Sentence" is now uniformly applied in practice to the formal designation by the court of the punishment or punishments. In the Resolutions of the Continental Congress, (see III Journals, 144, 158, 714; IV_Id., 268,) "sentences" of acquittal are sometimes referred to, the word sentence being employed as a general term equivalent to judgment. And note a similar use of the word in cases reported by James, pp. 281, 462, 463, 471, 639, 760, 786, 791, 794, 820, 823; also in case cited by Simmons § 563. court simply is to cause the legal sentence to be entered of record by the judge advocate, no discretion being allowed and no delib eration or vote being called for. In cases, however, in which the sentence is left by the code to the discretion of the court, the members, the verdict being completed, commonly proceed at once to vote for a punishment or punishments,' in the manner usually observed upon the Finding, and already indicated. The court may of course take an adjournment between finding and sentence if deemed proper and expedient. The voting may be either oral and open, beginning with the "youngest in commission" of the members as directed in Art 95; or in writing and secret, the member's name not being ap pended to his vote. The latter form is, except in simple cases. that usually pursued: it is also in general the preferable one, not only because, the votes of individuals not being known, there can be no danger that the opinion of a senior member will unduly influence that of a junior, but also for the reason that the different awards, combining as they may several distinct penal 1. It need hardly be remarked that no evidence can be received after the finding and before sentence. The proceeding, authorized in the British law, (Rules of Procedure, 45,) of introducing at this stage evidence as to character and service, including records of arrests and convictions if any has not been sanctioned in our practice. In recent cases in the Department of the Columbia, in which records of previous conviction had been referred to at this stage by the court-martial, its course was commented upon, and action was taken, by Gen. Pope, (Dept. Commander,) as follows:-"In the cases of Privates John Connors, Company A,' 14th Infantry. and John E. Powers, Light Battery 'E,' Ist Artillery, the Court, after the findings and before the sentences, called for and examined, without the assent, so far as appears, of the accused, the records of their respective companies, which showed in case of Private Connors that he had been three times, and in case of Private Powers that he had been five times, convicted of military offences. There is no authority for such action in our military law, and the same is disapproved. Even had either of the accused assented, the action would have been irregular, since such facts (unless recited by way of inducement in the specification and admitted by a plea of guilty) can only be introduced as testimony, in the usual manner and subject to the rules of evidence. Otherwise the proceedings, findings and sentences are approved; but as the measure of punishment awarded by the Court was probably influenced by the records improperly introduced, two (2) months of the confinement and forfeiture in case of Private Connors, and three (3) months of the confinement and forfeiture in case of Private Powers, are remitted. As thus mitigated, the sentences will be executed." G. C. M. O. 59, Dept. of the Columbia, 1884. And see a precisely similar case in Do. 60, Id. ties, will, when expressed in writing, be the more definite and explicit and the more readily compared. The ballots are commonly collected by the judge advocate, and counted and announced by him or the president. Where no punishment is found to be concurred in by a majority upon the first vote, further votings are to be had until some final sentence comes to be approved by a majority of the members present.' After the first vote, or at any other stage of the voting, the members, with a view to the reconciling of differences of opinion, may engage in such discussion as may be desirable; and here, as upon the Finding, the equality of the members is to be preserved, a junior being entitled to the same freedom of expression and the same consideration as a senior. Where the sentences originally voted are found all to differ, it has been an approved practice for the court to proceed to vote upon them in succession, beginning with the least severe, until one of them receives the vote requisite for its adoption. A majority of the votes may sometimes be found to concur in some one penalty or more: in such a case the proceedings will be simplified by treating such penalty or penalties as agreed upon; the voting being then resumed upon the other propositions. The practice which has prevailed somewhat in British courts-martial of voting-when opinions differ-first upon the species of the punishment, and then upon the quantum,3 has not been common with us, but may of course be resorted to if thought proper. It may be remarked indeed that neither law nor regulation has prescribed any special routine to be pursued in the making up of the sentence. The usual form, as above outlined, is thus subject to variation at the discretion of the court, which may indeed, if it see fit, dispense with voting altogether, and arrive at its conclusions by a comparison of views in an informal conversation. Case of joint accused. When two or more persons have been tried on joint charges and convicted, their sentences must be several, although the punishments awarded be the same. If I. As to the form in general pursued in voting upon the sentence, see Tytler, 311; Griffiths, 84; Hughes, 90; Maltby, 82; O'Brien, 269; DIGEST, 447. 2. O'Brien, 270; DIGEST, 447 3. Simmons § 641; Griffiths, 84; Hughes, 91, 93; Manual, 531; O'Brien, 270. the sentence be discretionary with the court, a separate voting or concurrence should therefore be had as to the sentence of each of the accused. Majority and Two-thirds Votes. The question of the selection of the sentence, or of any punishment, like all other questions arising in the procedure of our courts-martial, is, (except in the single instance of the death penalty,) determined by a majority vote. In the excepted case two thirds of the members present and acting must-as required by Art. 96—concur; i. e. four of a court of five members, five of a court of seven, six of a court of nine, eight of a court of eleven, and nine of a court of thirteen. In all other cases a simple majority is sufficient, as it is necessary, to impose a punishment. A tie vote, given where there is an even number of members, is futile and determines nothing. Where it occurs, the voting must be continued till a majority in favor of a certain sentence or punishment is obtained. Duty of Members who on the Finding Voted to Acquit. A marked diversity of opinion once prevailed upon the point whether the members, (where the sentence was discretionary) were obliged to vote a sentence without regard to what may have been their vote upon the finding,-whether, in other words, those who had voted for an acquittal might not properly be excused from voting a punishment. At the first impression it might seem unreasonable and inconsistent that a member, fully per suaded that the accused was innocent, or at least that the evidence had failed to convict him beyond a reasonable doubt, and who had voted accordingly, in the minority, for an acquittal. should at the next moment be required to adjudge that a specific punishment be imposed upon him as upon a guilty person. But this apparent inconsistency disappears when the principle is recalled, which has heretofore been set forth as resulting from the fundamental rule of the government of the majority in court-martial proceedings; viz. that the finding, when completed, becomes the act and judgment of the court as a unit, the opinions of the majority and minority no longer existing as such bat being absorbed in the conclusion of the whole. Where, there fore, the accused has been found guilty, the conviction is to be recognized and acted upon by each member as a fixed fact-as something which has passed out of the region of individual opin |