United States v. Cox

12 C.M.A. 168, 12 USCMA 168, 30 C.M.R. 168, 1961 CMA LEXIS 286, 1961 WL 4417

• Court: United States Court of Military Appeals
• Decided: February 3, 1961
• Docket: No. 14,481
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

A board of review affirmed the accused’s conviction by a special court-martial of sodomy, in violation of Article 125 of the Uniform Code of Military Justice, 10 USC § 925. In accordance with the provisions of Article 67 (b) (2) of the Uniform Code, 10 USC § 867, The Judge Advocate General of the Air Force certified the case to this Court to review the following issue: “May a rehearing on both findings and sentence be ordered before a special court-martial where the original hearing was before a general court-martial?”

As the certified question indicates, the accused was originally tried by a general court-martial. He was found guilty and sentenced to a bad-conduct discharge, reduction in grade, forfeiture of all pay and allowances, and confinement at hard labor for six months. The convening authority set aside the findings of guilty and ordered a rehearing because of improper cross-examination of the accused by trial counsel. However, since the sentence adjudged by the general court was within the jurisdictional limits of a special court-martial, the convening authority “deemed [it] appropriate” that the rehearing be held before a special court-martial. In due course the charge was forwarded to a special court-martial for trial.

Reversal of a conviction by appellate authority and the direction of a re-hearing of the case generally leaves the proceedings in the same position as before trial. Spriggs v United States, 225 F2d 865 (CA 9th Cir) (1955); Booth v United States, 154 Fed 836 (CA 2d Cir) (1907); District of Columbia v Huffman, 42 Atl 2d 502 (DC Mun App); Odium v Duffy, 35 Cal 2d 562, 219 P2d 785. There are exceptions to the rule. For example, the .court-martial before which a rehearing is held cannot be composed of “members of the court-martial which first heard the case”; and if again convicted, the accused cannot be subjected to punishment “in excess of or 'more severe than the original sentence” imposed for the same offenses of which he was previously convicted. Article 63(b), supra; United States v Kelley, 5 USCMA 259, 17 CMR 259. Recently, we held that a case cannot be divided in two parts, with one part tried before a general court-martial and the other before a special court-martial. United States v Martinez, 11 USCMA 224, 228, 29 CMR 40. Also, of course, proceedings at the rehearing cannot be inconsistent with the mandate of the appellate court. However, except as limited by law and the requirements of sound judicial practice, any action that, could have been taken before the first trial can be taken as part of the rehearing procedure.

The general rule has been applied by judicial tribunals in various situations. In District of Columbia v Huffman, supra, the Municipal Court of Appeals for the District of Columbia commented on the right of the prosecutor to enter a nolle prosequi on a rehearing. The court noted that he possessed the.same power over a case directed to be reheard as he . had before the original trial of the cause. In part, it said (page 503):

“We know from practical experience that a prosecutor is vested with important discretionary power — ■ commensurate with the responsibilities of his office, to determine whether to proceed with a prosecution already begun, or to enter a nolle prosequi. The same is true of a retrial after reversal. Thus in many cases a reversal ends a prosecution even though the appellate court has not expressly ordered it. This is so because the prosecutor may feel that a defendant has already been punished enough, or because the nature of the charge is such as not to warrant a second prosecution, or because he feels he cannot secure sufficient evidence to support a conviction, or for other reasons which appeal to his sense of justice as a public servant.”

In People v Dormann, 180 Misc 160, 44 NYS2d 266, the defendant’s conviction was reversed on appeal. On remand of the case, the defendant moved to transfer the proceedings from the County Court to the Supreme Court on the ground that he could not get a fair trial in the County Court. The motion was granted. In Booth v United States, supra, the Government was allowed to consolidate subsequent indictments against the accused with those as to which a rehearing had been directed, and to try all charges at the rehearing.

Two cases quite similar to the one before us are Ex parte Vickery, 51 Fla 141, 40 So 77, and United States v Kincaid, 17 CMR 523. In Vickery the ■ defendant was tried for murder and convicted of manslaughter in the Circuit Court. The conviction was reversed on appeal. Thereupon, the prosecuting attorney filed an information charging the defendant with manslaughter, and the case was transferred from the Circuit Court to the County Court, which had jurisdiction .over noncapital criminal offenses. Later the defendant challenged the validity of the transfer. Overruling the challenge, the Florida Supreme Court said:

“. . . when the verdict of manslaughter was reversed the cause stood in the circuit court precisely as if the grand jury had brought in an indictment for manslaughter; and it cannot be questioned that in such event it is proper and jurisdictional for the cause to be tried in the criminal court, if one exists in the county, upon an information filed therein.”

In United States v Kincaid, 17 CMR 523, the accused was first tried by a special court-martial. The conviction was set aside on review. In the meantime, the accused committed other offenses. The later offenses were joined with the earlier charges and all charges were referred for trial before a general court-martial. Sustaining the validity of the proceedings, a Navy board of review said:

“The question remaining is whether it was proper in this case to have the rehearing before a general court-martial when the original trial was a special court-martial. In this regard the Code itself and the Manual for Courts-Martial (1951) are silent and a diligent search has failed to reveal any previous determination. We are, then, confronted with an interpretation of the intent of the framers of the Code as to any unwritten limitations on a rehearing.

“Appellate defense counsel argues that the convening authority could not divest the original court of jurisdiction but, in effect, this was accomplished by the provision in the Code requiring new members. Furthermore, the jurisdiction of a general court-martial is more comprehensive than that of a special court-martial, i.e., for any offense triable by special court-martial there is a concurrent jurisdiction by a general court-martial and which forum is to hear the case lies within the discretion of the convening authority.”

No provision in the Uniform Code or in the Manual for Courts-Martial, and no requirement of sound judicial procedure, takes the present case out of the operation of the general rule that reversal of a conviction leaves the cause-as though there had been no trial. Since before trial a convening authority has power to refer the charges to-an appropriate court, whether it be summary, special, or general, he has-the same discretion in that regard when the case is before him for consideration as to a rehearing. District of Columbia v Huffman, supra. Accordingly, the certified question is answered in the affirmative.

The decision of the board of review is affirmed.

Judge LatimeR concurs.