Opinion of the Court
Robert E. Quinn, Chief Judge:
This appeal brings up for review the effect of the announcement of findings of guilty by the president of the court-martial. The accused was charged with desertion terminated by apprehension. The absence resulted from an escape from the Disciplinary Barracks at Camp Gordon, Georgia, in which the accused had been confined as a result of a conviction by a court-martial in Korea.
At the trial, the accused testified that before his escape he had been informed by a sergeant “behind the desk” in the Orderly Room that his dishonorable discharge had been “suspended” and the adjudged period of confinement had been approved. He assumed that the suspension of the discharge eliminated him from the service, while it still gave him an opportunity to re-enlist “in the future.” On the basis of this advice and the fact that he was treated like the other military prisoners, he concluded that he was no longer in the Army. From other testimony, it appears that prisoners with executed discharges and those whose discharges had been suspended received the same treatment.
Instructing the court-martial on the principles of law applicable to the case, the law officer delineated the elements of desertion, the offense charged, and those of the lesser offense of an unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. No other offense was mentioned. In addition, the law officer advised the court-martial in re[147]*147gard to the accused’s defense that he was “honestly under the mistaken belief that he was not in the Army.” The court then retired into closed session to deliberate on the guilt or innocence of the accused. About thirty minutes later it reopened, and the following proceedings were had:
“PRES: Willis R. Boswell, it is my duty as president of this court to inform you that the court in closed session and upon secret written ballot, two-thirds of the members present at the time the vote was taken concurring in each finding of guilty, finds you:
“Of the Specification, Charge I: Not Guilty
“Of Charge I: Not Guilty, but Guilty of a violation of Article 95.
“LO: Ninety-five?
“Pres : Yes.
“LO: Gentlemen, the Article 95 is not a lesser included offense of Article 85, the article under which the accused was charged. The only lesser included offense to the charge of desertion — -that is Article 85 — is Article 86, absence without leave. At this time the court will recess for a few moments. I would like to research the law for about five or ten minutes. The court will recess.
“The court recessed at 1145 hours, 31 July 1956.”
On returning from the recess, the law officer instructed the court-martial, as he had during the proceedings set out above, that Article 95 is not lesser included within the offense charged. He directed the court members to “reconsider” their findings on the lesser offense. This direction led to a further exchange between the law officer and various members of the court regarding the propriety of substituting Article 95 for the desertion alleged. Moreover, one of the court members disputed the law officer’s instructions. He maintained that the omission of Article 95, as a lesser offense to desertion, from the Table of Commonly Included Offenses in the Manual for Courts-Martial was not controlling because the Table “is intended as a general guide.” He also demanded “a legal authority which prevents the court from directing the trial judge advocate . . . [to change] the charge and specification” to show a violation of Article 95. At that point another recess was taken.
When court reconvened, the law officer referred the court members to paragraph 55 of .the Manual. (See United States v Trojanowski, 5 USCMA 305, 17 CMR 305.) A considerable discussion followed, but we need not set out the details. Eventually, the law officer instructed the court that since it had “found and announced” that the accused was not guilty of desertion, that finding was “irrevocable.” However, he went on to say that the court could retire to deliberate on the lesser offense of absence without leave. Again the court withdrew into closed session. Almost an hour later it reopened. The president announced that the court had found the evidence was not legally sufficient to sustain a finding of guilty of desertion, but it was sufficient to prove a violation of Article 86. Nevertheless, the court believed the evidence tended to prove a violation of Article 95, and that the accused “would be more properly charged” under that Article. Consequently, it suspended the proceedings in accordance with paragraph 55 of the Manual.
Within the hour the court reconvened. A letter from the convening authority was read into the record. It noted that the Statute of Limitations had run on the offense of escape from confinement, and it directed that the trial proceed on the original charge. A court member requested advice on the Statute of Limitations relating to an unauthorized absence. Informed that it had no application in time of war, he asked, “What war?” (See United States v Ayers, 4 USCMA 220, 15 CMR 220.) Eventually, the court retired for further deliberations. Fifteen minutes later, the court returned and the president announced that it had found the accused guilty of an unauthorized absence, in violation of Article 86.
We have no desire to criticize any of the trial personnel for their part in complicating and confusing the issues in the case. Our duty is not to assess [148]*148fault, but to determine whether the accused has been legally convicted. Nevertheless, we disapprove the practice of providing the court members with a copy of the Manual for Courts-Martial for use in their closed session deliberations.
Recently, in United States v Wilson, 7 USCMA 713, 23 CMR 177, we reemphasized the responsibility of the law officer in the instructional area. We said that if “we are to build a real system of military justice, we must ensure that the law officer is shouldered with the responsibility of seeing to it that the court-martial members are given proper guideposts to reach a fair and just verdict.” In one of our early opinions we held that the law officer does not discharge his duty to instruct by merely referring to paragraphs of the Manual and directing the court members to read those paragraphs. One of the reasons we gave for that decision is particularly applicable to this case. We pointed out that the court members “may not understand . . . [the Manual’s discussion] and may well be confused by additional matter appearing in the text, not applicable to the case before them.” United States v Gilbertson, 1 USCMA 465, 4 CMR 57. See also United States v Richardson, 2 USCMA 88, 6 CMR 88. Later we held that it is also error for the court members to consult cases referred to by the law officer “for the purpose of determining for themselves what law should be applied to the case.” United States v Lowry, 4 USCMA 448, 453, 16 CMR 22. In short, it is improper for court members to consult “outside sources” for information on the law. In that respect the Manual is no different from other legal authorities. It, too, has no place in the closed session deliberations of the court-martial.
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Opinion of the Court
Robert E. Quinn, Chief Judge:
This appeal brings up for review the effect of the announcement of findings of guilty by the president of the court-martial. The accused was charged with desertion terminated by apprehension. The absence resulted from an escape from the Disciplinary Barracks at Camp Gordon, Georgia, in which the accused had been confined as a result of a conviction by a court-martial in Korea.
At the trial, the accused testified that before his escape he had been informed by a sergeant “behind the desk” in the Orderly Room that his dishonorable discharge had been “suspended” and the adjudged period of confinement had been approved. He assumed that the suspension of the discharge eliminated him from the service, while it still gave him an opportunity to re-enlist “in the future.” On the basis of this advice and the fact that he was treated like the other military prisoners, he concluded that he was no longer in the Army. From other testimony, it appears that prisoners with executed discharges and those whose discharges had been suspended received the same treatment.
Instructing the court-martial on the principles of law applicable to the case, the law officer delineated the elements of desertion, the offense charged, and those of the lesser offense of an unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. No other offense was mentioned. In addition, the law officer advised the court-martial in re[147]*147gard to the accused’s defense that he was “honestly under the mistaken belief that he was not in the Army.” The court then retired into closed session to deliberate on the guilt or innocence of the accused. About thirty minutes later it reopened, and the following proceedings were had:
“PRES: Willis R. Boswell, it is my duty as president of this court to inform you that the court in closed session and upon secret written ballot, two-thirds of the members present at the time the vote was taken concurring in each finding of guilty, finds you:
“Of the Specification, Charge I: Not Guilty
“Of Charge I: Not Guilty, but Guilty of a violation of Article 95.
“LO: Ninety-five?
“Pres : Yes.
“LO: Gentlemen, the Article 95 is not a lesser included offense of Article 85, the article under which the accused was charged. The only lesser included offense to the charge of desertion — -that is Article 85 — is Article 86, absence without leave. At this time the court will recess for a few moments. I would like to research the law for about five or ten minutes. The court will recess.
“The court recessed at 1145 hours, 31 July 1956.”
On returning from the recess, the law officer instructed the court-martial, as he had during the proceedings set out above, that Article 95 is not lesser included within the offense charged. He directed the court members to “reconsider” their findings on the lesser offense. This direction led to a further exchange between the law officer and various members of the court regarding the propriety of substituting Article 95 for the desertion alleged. Moreover, one of the court members disputed the law officer’s instructions. He maintained that the omission of Article 95, as a lesser offense to desertion, from the Table of Commonly Included Offenses in the Manual for Courts-Martial was not controlling because the Table “is intended as a general guide.” He also demanded “a legal authority which prevents the court from directing the trial judge advocate . . . [to change] the charge and specification” to show a violation of Article 95. At that point another recess was taken.
When court reconvened, the law officer referred the court members to paragraph 55 of .the Manual. (See United States v Trojanowski, 5 USCMA 305, 17 CMR 305.) A considerable discussion followed, but we need not set out the details. Eventually, the law officer instructed the court that since it had “found and announced” that the accused was not guilty of desertion, that finding was “irrevocable.” However, he went on to say that the court could retire to deliberate on the lesser offense of absence without leave. Again the court withdrew into closed session. Almost an hour later it reopened. The president announced that the court had found the evidence was not legally sufficient to sustain a finding of guilty of desertion, but it was sufficient to prove a violation of Article 86. Nevertheless, the court believed the evidence tended to prove a violation of Article 95, and that the accused “would be more properly charged” under that Article. Consequently, it suspended the proceedings in accordance with paragraph 55 of the Manual.
Within the hour the court reconvened. A letter from the convening authority was read into the record. It noted that the Statute of Limitations had run on the offense of escape from confinement, and it directed that the trial proceed on the original charge. A court member requested advice on the Statute of Limitations relating to an unauthorized absence. Informed that it had no application in time of war, he asked, “What war?” (See United States v Ayers, 4 USCMA 220, 15 CMR 220.) Eventually, the court retired for further deliberations. Fifteen minutes later, the court returned and the president announced that it had found the accused guilty of an unauthorized absence, in violation of Article 86.
We have no desire to criticize any of the trial personnel for their part in complicating and confusing the issues in the case. Our duty is not to assess [148]*148fault, but to determine whether the accused has been legally convicted. Nevertheless, we disapprove the practice of providing the court members with a copy of the Manual for Courts-Martial for use in their closed session deliberations.
Recently, in United States v Wilson, 7 USCMA 713, 23 CMR 177, we reemphasized the responsibility of the law officer in the instructional area. We said that if “we are to build a real system of military justice, we must ensure that the law officer is shouldered with the responsibility of seeing to it that the court-martial members are given proper guideposts to reach a fair and just verdict.” In one of our early opinions we held that the law officer does not discharge his duty to instruct by merely referring to paragraphs of the Manual and directing the court members to read those paragraphs. One of the reasons we gave for that decision is particularly applicable to this case. We pointed out that the court members “may not understand . . . [the Manual’s discussion] and may well be confused by additional matter appearing in the text, not applicable to the case before them.” United States v Gilbertson, 1 USCMA 465, 4 CMR 57. See also United States v Richardson, 2 USCMA 88, 6 CMR 88. Later we held that it is also error for the court members to consult cases referred to by the law officer “for the purpose of determining for themselves what law should be applied to the case.” United States v Lowry, 4 USCMA 448, 453, 16 CMR 22. In short, it is improper for court members to consult “outside sources” for information on the law. In that respect the Manual is no different from other legal authorities. It, too, has no place in the closed session deliberations of the court-martial.
Turning to the announcement of the findings, one thing stands out with unmistakable clarity, namely, the findings initially announced were the findings actually determined by the court. Two questions are thus raised: (1) Is escape from confinement an offense lesser included within desertion? and (2) if it is not, did the original findings constitute an acquittal of the offense charged and of its lesser offense, absence without leave? The first question mus.t be answered in the negative, and the second in the affirmative.
To prove an escape, in violation of Article 95, it must be shown that the accused was placed in lawful confinement. United States v Gray, 6 USCMA 615, 20 CMR 331. While such evidence bears upon the accused’s intent to absent himself or remain away without authority (see United States v Wilson, 4'USCMA 3, 15 CMR 3), it is not an integral part of the general proof required for desertion. Nor, aside from any question-of duplicity, do the allegations in the specification state the offense of escape. Cf. United States v Hobbs, 7 USCMA 693, 23 CMR 157; United States v Davis, 2 USCMA 505, 10 CMR 3. Hence, neither from the standpoint of allegation nor from the standpoint of proof, is escape from confinement a lesser offense included within the desertion charge.
As far as the second question is concerned, the court-martial found the accused not guilty of the specification of the charge.
It is well-settled that acquittal by a general verdict of the offense charged is also acquittal of every lesser offense necessarily included within the charge. Ex parte Nielsen, 131 US 176, 33 L ed 118, 9 S Ct 672 (1889). Since absence without leave is lesser included within the charge, the court-martial’s findings necessarily resulted in the accused’s acquittal of that offense as well as of desertion. True, the court-martial made a further finding, but that finding was not embraced within the charge and can be rejected as sur-plusage. Statler v United States, 157 US 277, 39 L ed 700, 15 S Ct 616 (1895).
In United States v London, 4 USCMA 90, 15 CMR 90, we had before us a similar situation. . The ac-eused was charged with housebreaking and larceny, in violation of Articles 130 and 121, respectively, Uniform Code of Military Justice, 10 USC §§ 930 and 921. After the court had deliberated on the find[149]*149ings, it called the law officer and the reporter into the closed session to assist in putting its findings into proper form. By its findings, the court acquitted the accused of the offenses charged, but found him guilty of being an accessory after the fact, in violation of Article 78, Uniform Code of Military Justice, 10 USC § 878. On learning of these findings, the law officer reopened the court. He again instructed the court members on the legal alternative findings they could make because it appeared to him that they had not understood his original instructions. The court retired for further deliberations.
When the court reopened, it announced that it had found the accused not guilty of housebreaking, but guilty of larceny. No mention was made in the announcement of the offense of an accessory after the fact. On appeal to this Court, the accused contended that the closed session disclosure to the law officer of the initial findings was tantamount to an announcement of the findings, and resulted in his acquittal of the offenses charged. He further contended that that part of the findings which related to a violation of Article 78 was surplusage. We rejected these contentions. We were careful to point out, however, that the announcement of the original findings was not made in open court. As a result, it was not a final verdict, and it could be reconsidered by the court-martial after it had received clarifying instructions. We said: “Certainly, if a court formally and correctly announced a finding of not guilty in open court, it could not thereafter reconsider its finding and return a finding of guilty.”
The board of review below recognized that the quoted statement is directly applicable here. It construed the phrase “formally and correctly announced” as meaning that the finding announced must be a legal finding before it can have legal effect. Since the finding as to Article 95 was illegal, it concluded that the court-martial could properly reconsider all of its announced findings. This construction of our opinion is wrong. The word “correctly” simply referred to the familiar principle that, if the president of the court incorrectly announces the actual findings, a correction of his “slip of the tongue” is not a reconsideration of the findings. Only two weeks before the London opinion, we decided United States v Downs, 4 USCMA 8, 15 CMR 8, on that very point. Here, the findings announced by the President were the true findings reached by the court-martial in its deliberations on the accused’s guilt or innocence. There was no error in the announcement. The findings, therefore, were final. Insofar as they acquitted the accused of the offenses charged, they could not be reconsidered. Insofar as the illegal part was concerned, the findings could be reconsidered, but only for the purpose of deleting that part from the formal announcement. In the absence of such action, the law will disregard the illegal part of the findings. Statler v United States, supra; Manual for Courts-Martial, United States, 1951, paragraph 74cZ(3).
Similar situations have been before us in cases involving reconsideration of the sentence. In United States v Linder, 6 USCMA 669, 20 CMR 385, the court announced the sentence in open court. In part the announced sentence was illegal in that it provided for confinement in excess of that which the law allows for a sentence which does not include a punitive discharge. The law officer called the court’s attention to the illegality and instructed it to reconsider the sentence. The court did so. It announced a new sentence which reduced the period of confinement adjudged in the first sentence from two years to one year, but also provided for a bad-conduct discharge. We held that since the first sentence announced by the court was its “actual” determination, the sentence was final and that part which was illegal must be disregarded. In United States v Hounshell, 7 USCMA 3, 5-6, 21 CMR 129, we reached the same result. What we said in that case in connection with the reconsideration of the sentence is appropriate to this case in regard to the reconsideration of the findings.
“It is apparent that the court misinterpreted the law. It is equally ap[150]*150parent however that the president of the court in his announcement of the sentence did not misstate the actual sentence determined by the court members. United States v Castner, 3 USCMA 466, 13 CMR 22. Consequently on announcement in open court, the sentence became final and could not thereafter be increased in severity. United States v Linder, 6 USCMA 669, 20 CMR 385; United States v Long, 4 USCMA 101, 15 CMR 101.”
The decision of the board of review is reversed. The findings of guilty are set aside, and the charge is ordered dismissed.
Judge Ferguson concurs.