ion and become ascertained and concluded. Though he may have voted not guilty, he is to vote upon the sentence precisely as if he had voted for a conviction, or as if the fact of guilt had been determined by some competent agency wholly independently of himself, and the rightfulness of such determination was beyond question.'

Further he must not only vote a sentence but an adequate sentence, i. e. one commensurate to the offence or offences found. If, having voted to acquit, he gives his vote for a slight and inadequate penalty, he fails in his full duty as an officer and member of the court.2

Some Sentence Necessary on Conviction. But though the sentence pronounced be inadequate, some sentence must always follow a conviction. For a court, as has sometimes been done, to omit to award a sentence for the expressed reason that the actual offence is shown to have been a very slight one, or that the criminality of the accused was greatly palliated by the circumstances of the case, or that he has been held for an unreasonably long period in arrest or confinement before trial, &c.,is a marked irregularity.3 And so of any mere direction as to the disposition of the accused, or recommendation as to his disposition addressed to the reviewing authority; such not being a sentence or properly a substitute for one.

Where the accused has escaped. The fact that, pending the trial, the accused has escaped from military custody furnishes

1. See, on this subject, McNaghten, 117-129, and Kennedy, 198-206, these two authors being especially full and pointed; also Simmons $637639; Griffiths, 81, 84; Hughes, 93; Bombay R., 35; O'Brien, 269; De Hart, 188-191; Lee, 155; Capt. Barron's Trial, (Navy,) 333; DIGEST, 447 Simmons § 639, cites a case of a member of a court-martial, who, having refused to vote a punishment after having voted to acquit, was himself brought to trial for the neglect of duty involved. It is now expressly provided by the English Rules of Procedure $ 68, that-" Every member of a court must give his opinion on every question which the court has to decide, and must give his opinion as to the sentence, notwithstanding that he has given his opinion in favor of acquittal."

2. See McNaghten, 125; also G. C. M. O. 163, Dept. of the Mo., 1882. 3. See G. O. 27 of 1835; Do. 12 of 1836; Do. 45 of 1864; G. C. M. 0.63 of 1874; Do. 8, Dept. of Cal., 1874; G. O. 20, Dept. of the South, 1866; Do. 69, Dept. of Dakota, 1870.

4. See post under head of "The sentence must constitute a criminal judgment.'

no ground for not proceeding to a finding, and, in the event of conviction, to a sentence, in his case; and the court may and should thus find and sentence precisely as in any other instance. The court, having once duly assumed jurisdiction of the offence and person, cannot, by any wrongful act of the accused, be ousted of its authority or discharged from its duty to proceed fully to try and determine, according to law and its oath.'

Where the accused is insane. Where indeed the evidence quite clearly shows that the accused was insane at the time of the offence, whether or not the insanity is specially pleaded as a defence, there can of course properly be no conviction and therefore no sentence. Where the fact is shown in evidence, or developed upon the trial, that the accused has become insane since the commission of the offence, here also the court will most properly neither find nor sentence but will communicate officially to the convening authority the testimony or circumstances and its action thereon, and adjourn to await orders. In some instances of this class the court has added a recommendation that the accused be discharged from the service, transcending however in so doing its strict province.

Compromise Sentence. For the court to make up its sentence by dividing the aggregate of the different quantities of punishment voted-as the terms of imprisonment, fines, or amounts of pay to be forfeited—by the number of the members, and taking the average result as the sentence to be adjudged, is clearly not a proper or military proceeding.3 Twyford expresses the opinion that such a sentence is "illegal" and "not the sentence of the court." More correctly, however, this form, though not affecting the validity of the judgment, would be an objectionable

1. Compare Meade v. Dpty. Marshal, 1 Brock, 324; Fight v. State, 7 Ohio, 180; McCorkle v. State, 14 Ind. 39; State v. Wamire, 16 Id. 357Upon the trial by military commission of Dodd and others, in Indiana. in 1864, the court, in the absence of Dodd, who had escaped, sentenced him to death, and its action was duly approved by the reviewing authority. These authorities have been referred to in Chapter XIX on the point that the court may find under similar circumstances.

2. See Chapter XIX-"Additions to the Finding, 6." 3. Compare Wharton, C. P. & P. § 842.

4. Guide Book, p. 20.

irregularity: it is certainly very rare in practice. To determine upon a punishment by casting lots would be still more irregular."

Adjournment and Reconsideration. In a case of importance, or where a conflict of opinion is developed upon a material question, it is always proper for the court to take an adjournment, pending its deliberation upon the sentence, in order that the members may have an opportunity to reflect upon the issues raised, consult precedents, &c., or in order that the judge advocate may be enabled to prepare an opinion or statement of the law upon the point under discussion.

So, too, after a sentence has been agreed upon, the court possesses the power to reconsider and modify the same at discretion, at any time before the transmittal of the proceedings to the reviewing officer. This doctrine was substantially affirmed at an early period, (1819,) in Private Williamson's case, where the action of a court-martial, which, having sentenced the accused to a term of confinement, adjourned and on the ensuing day reconsidered its sentence and substituted one of death, was held by Attorney General Wirt to have been authorized and regular. And the power to reconsider would extend to the substitution, for the sentence, of a full acquittal, if deemed by the court just and proper.+

Recording of Sentence. The sentence having been completed, is formally entered in the Record, for the action of the Reviewing Authority.5

1. See Simmons § 642; Hough, (P.) 793; Manual, 531.

2. Compare Wharton, C. P. & P. § 842; 1 Bishop, C. P. § 998 a. 3. I Opinions, 296-9. This authority, as indeed indicated by Mr. Wirt, is analogous to that which may be exercised by civil courts, of modifying sentences when not in accordance with law. Thus in Miller 2. Finkle, 1 Park. 376, the court say:-"If, by inadvertence in pronouncing a sentence, a requirement of the statute has been overlooked, it may be corrected by the same tribunal before further action is taken. The court has the right to expunge or vacate the first sentence and to pass a new sentence." And see 1 Bishop, C. P. § 1298 and cases cited. A court-martial, however, is not restricted to errors of law as grounds for reconsidering and modifying its sentence, but may change it for any other good reason-as that it is inadequate, or too severe, or inappropriate to the nature of the offence.

4. That the same number of members need not take part in the reconsideration, provided a quorum of the same be present-see VII Opins. of Attys. Gen., 338.

5. As to this action see Chapter XXI. In the British law, as lately as

II. CLASSIFICATION OF SENTENCES.

Distinction made by the Articles of War. The power of selection of punishment which a court-martial may exercise in imposing sentence depends upon the provision of law under which the charge is laid. The penal code of the army, in providing for the punishment of military offences, either prescribes a particular penalty to be adjudged in the event of conviction, or declares that a certain penalty shall be imposed or such other as the court may direct, or, without naming any penalty, simply leaves the matter of sentence to the will of the court. In the first case the sentence or punishment may be distinguished as mandatory; in the other two cases as discretionary.

Mandatory Sentences. The Articles of war which require that a certain specific punishment shall be imposed upon conviction are the 5th, 6th, 8th, 13th, 14th, 15th, 18th, 26th, 27th, 28th, 38th, 50th, 57th, 59th, 61st, 65th, 100th, and Sec. 1343, Rev. Sts. In imposing sentence for the offences made punishable under these Articles, the province of the court is simply ministerial-to pronounce the judgment of the law. It has no power to affix a punishment either more or less severe, or other, than that specified any different or additional punishment is simply a nullity and inoperative. If more penalties than one are prescribed for the offence by the statute, all are to be included in the sentence: if any one is omitted the sentence is illegal and of no effect. Where there has been a conviction upon several charges setting forth different offences for which different mandatory punishments are provided, all must be embraced in the sentence. Where the conviction has been of offences for some one or more of which the punishment is mandatory, while for another or others it is discretionary, the mandatory punishment or punishments must certainly be affixed, no matter how widely or variously the court may further exercise its discretionary power of

in the reign of James II, (see Art. 48 of his Code,) the presiding officer pronounced the sentence in open court, -as is still done in the French conseils de guerre.

1. DIGEST, 447; G. O. 13, Dept. of the Susquehanna, 1864; Do. 5, Fourth Mil. Dist., 1867. And compare Wharton, C. P. & P. § 752 2. As-in the civil practice-"if a statute imposes a fine and imprisonment, both must be inflicted." 1 Bishop, C. L. § 941.

punishment in the same sentence.' Indeed in all cases of punishments of the mandatory class, it is not the court which decrees the penalty but the statute; the distinctive function of the court practically terminating with the conviction.

Discretionary Sentences. The Articles of war which leave the punishment to the discretion of the court are the 3d, 16th, 17th, 19th, 20th, 21st, 22d, 23d, 24th, 26th, 27th, 28th, 30th, 31st, 32d, 33d, 34th, 35th, 36th, 37th, 38th, 39th, 40th, 41st, 42d, 43d, 44th, 45th, 46th, 47th, 49th, 50th, 51st, 54th, 55th, 56th, 58th, 6oth, 62d, 68th, 69th, 86th and 101st.

Extent of the Discretion in General. The authority conferred is always a large one, no maximum, nor, except in a single instance, minimum of punishment being in any case prescribed as a limit.3 The discretion ranges from the slightest penalty, as an admonition or a forfeiture of a trifling sum, to the most severe, as imprisonment for life, dismissal, or-where it is "expressly mentioned"-death. Moreover it extends to the imposing of any number of different punishments in the same sentence, subject only to the general rules and restrictions presently to be considered. Further, it is illustrated by the fact that it need not be exercised at all, provided the case is one in which

1. Or, though the discretionary power be not exercised at all. See post.

2. This is in Art. 58, where it is provided that, for the crimes specified, the punishment "shall not be less" than that prescribed by the local law. It may be noted that Art. 101 does indeed limit a forfeiture of pay, imposed with suspension, to the term of the suspension. But this term is itself left without limit.

3. This feature in our code has been unfavorably commented upon by O'Brien, (p. 487,) and later, as inducing an uncertainty and inequality of punishment, the result being that, in cases especially of desertion, different courts award quite different measures of punishment for similar acts of offence.

4. See Rex v. Suddis, 1 East, 316.

5. Our law, (long settled on this point-see O'Brien, 276,) differs from the British, where, as it appears, two distinct punishments cannot, except when expressly authorized, be combined in the same sentence. Simmons 687; Kennedy, 209. And see Army Act § 44. In a recent American case in which dishonorable discharge, forfeiture of pay and confinement in a penitentiary were combined in a sentence imposed upon conviction of a violation of Art. 62, the regularity and validity of the sentence were expressly affirmed by the Supreme Court. Ex parte Mason, 105 U. S. 700.