Opinion of the Court
Quinn, Judge:
A certificate of the Acting Judge Advocate General of the Navy, filed under the provisions of Article 67(b) (2), Uniform Code of Military Justice, 10 USC § 867, asks that we determine the correctness of a decision by the Court of Military Review that the findings of guilty in this case cannot legally stand.
On May 1, 1969, seven offenses, including conspiracy to murder a Major Williams (Specification 1, Charge II), were filed against the accused. On August 1, 1969, the charges came on for trial before a general court-martial convened in DaNang, Republic of Vietnam. At an Article 39(a) session before the trial judge, defense counsel indicated that the accused desired to be tried without court members. Contrary to the provisions of Article 16, UCMJ, 10 USC § 816, the request was not in writing. Undeterred by the absence of a written request, the judge proceeded to arraign the accused, dispose of a motion to [142] dismiss for lack of speedy trial, and take evidence as to the merits. In due course, the accused was found guilty of six of the charges, but acquitted of conspiracy to murder Major Williams, and was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 20 years. Intermediate appellate authorities affirmed. However, we reversed the conviction, United States v Culver, 20 USCMA 217, 43 CMR 57 (1970), on the authority of United States v Dean, 20 USCMA 212, 43 CMR 52 (1970).
All seven charges were referred to trial before a general court-martial at Camp Lejeune, North Carolina. Although not presented specifically as a motion to dismiss, defense counsel contended that the accused could not be tried again for conspiracy to murder Major Williams because he had been acquitted of that offense at the first trial. The judge ruled that, under the Dean case, the proceedings at the first trial were a nullity and, therefore, did not bar another trial. At this trial, he accused was found guilty of the conspiracy charge, but was acquitted of all the other offenses of which he had been found guilty at the first trial. He was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for 5 years.
In United Sates v. Dean, supra, this Court reviewed the statutory requirements for trial by a general court-martial composed of a military judge alone. A majority of the Court concluded that a request in writing by the accused for that kind of court “is an indispensable jurisdictional prerequisite,” 20 USCMA at 212, 43 CMR at 52; in the absence of the written request, a court-martial cohiposed of a military judge alone, we said, “is not lawfully constituted as a court.” Id. at 215, 43 CMR at 55. The Supreme Court of the United States has held that “acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” United States v Ball, 163 US 662, 669, 41 L Ed 300, 16 S Ct 1192 (1896). These principles are relied upon by the Government to support its contention that the Court of Military Review erred in holding that the accused’s acquittal of the charge of conspiracy to murder Major Williams at the first trial was a bar to a second trial of the offense before a properly constituted court-martial. The contention is framed in conventional terms of the limitation on the constitutional guarantee against putting a person twice in jeopardy for the same offense.
I dissented in Dean to the majority’s determination that the procedural error constituted a “jurisdictional defect.” Consequently, under my view, Ball’s dictum is inapplicable, and the accused is entitled to reversal of his conviction because it was obtained in violation of his constitutional right against double jeopardy. In his separate opinion here, Judge Duncan agrees with me that the accused’s acquittal at the first trial barred a second trial for the same offense, but apparently he deems it sufficient to redefine but not reject Dean’s postulate that the absence of a written request for trial by military judge alone is a jurisdictional defect. However, even if Dean is left wholly undiluted so as to justify the Government’s reliance on Ball’s prescription that the constitutional guarantee against double jeopardy is inoperative if the first court has no jurisdiction, in my opinion, military law requires vacation of the findings of guilty.
Military law has a number of procedures that are distinctively different from the practice in the civilian criminal courts. One of the differences results from the mode and the consequences of review of the findings and sentence of the trial court. In the civilian courts, appellate review is initiated by a party who deems himself aggrieved by the trial court’s action; in the military practice, some degree of review is automatic in all cases. Commenting on the conse[143] quence of this kind of review, we observed that:
. . Literally . . . [the accused] can never be prejudiced . . . for on retrial, if any, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial. . . . Since prejudice is impossible under this procedure, the evils contemplated by and even prompting the guaranty against double jeopardy are entirely inoperative.” United States v Zimmerman, 2 USCMA 12, 20, 6 CMR 12, 20 (1952).
See also United States v Dean, 7 US CMA 721, 23 CMR 185 (1957).
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Opinion of the Court
Quinn, Judge:
A certificate of the Acting Judge Advocate General of the Navy, filed under the provisions of Article 67(b) (2), Uniform Code of Military Justice, 10 USC § 867, asks that we determine the correctness of a decision by the Court of Military Review that the findings of guilty in this case cannot legally stand.
On May 1, 1969, seven offenses, including conspiracy to murder a Major Williams (Specification 1, Charge II), were filed against the accused. On August 1, 1969, the charges came on for trial before a general court-martial convened in DaNang, Republic of Vietnam. At an Article 39(a) session before the trial judge, defense counsel indicated that the accused desired to be tried without court members. Contrary to the provisions of Article 16, UCMJ, 10 USC § 816, the request was not in writing. Undeterred by the absence of a written request, the judge proceeded to arraign the accused, dispose of a motion to [142] dismiss for lack of speedy trial, and take evidence as to the merits. In due course, the accused was found guilty of six of the charges, but acquitted of conspiracy to murder Major Williams, and was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 20 years. Intermediate appellate authorities affirmed. However, we reversed the conviction, United States v Culver, 20 USCMA 217, 43 CMR 57 (1970), on the authority of United States v Dean, 20 USCMA 212, 43 CMR 52 (1970).
All seven charges were referred to trial before a general court-martial at Camp Lejeune, North Carolina. Although not presented specifically as a motion to dismiss, defense counsel contended that the accused could not be tried again for conspiracy to murder Major Williams because he had been acquitted of that offense at the first trial. The judge ruled that, under the Dean case, the proceedings at the first trial were a nullity and, therefore, did not bar another trial. At this trial, he accused was found guilty of the conspiracy charge, but was acquitted of all the other offenses of which he had been found guilty at the first trial. He was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for 5 years.
In United Sates v. Dean, supra, this Court reviewed the statutory requirements for trial by a general court-martial composed of a military judge alone. A majority of the Court concluded that a request in writing by the accused for that kind of court “is an indispensable jurisdictional prerequisite,” 20 USCMA at 212, 43 CMR at 52; in the absence of the written request, a court-martial cohiposed of a military judge alone, we said, “is not lawfully constituted as a court.” Id. at 215, 43 CMR at 55. The Supreme Court of the United States has held that “acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” United States v Ball, 163 US 662, 669, 41 L Ed 300, 16 S Ct 1192 (1896). These principles are relied upon by the Government to support its contention that the Court of Military Review erred in holding that the accused’s acquittal of the charge of conspiracy to murder Major Williams at the first trial was a bar to a second trial of the offense before a properly constituted court-martial. The contention is framed in conventional terms of the limitation on the constitutional guarantee against putting a person twice in jeopardy for the same offense.
I dissented in Dean to the majority’s determination that the procedural error constituted a “jurisdictional defect.” Consequently, under my view, Ball’s dictum is inapplicable, and the accused is entitled to reversal of his conviction because it was obtained in violation of his constitutional right against double jeopardy. In his separate opinion here, Judge Duncan agrees with me that the accused’s acquittal at the first trial barred a second trial for the same offense, but apparently he deems it sufficient to redefine but not reject Dean’s postulate that the absence of a written request for trial by military judge alone is a jurisdictional defect. However, even if Dean is left wholly undiluted so as to justify the Government’s reliance on Ball’s prescription that the constitutional guarantee against double jeopardy is inoperative if the first court has no jurisdiction, in my opinion, military law requires vacation of the findings of guilty.
Military law has a number of procedures that are distinctively different from the practice in the civilian criminal courts. One of the differences results from the mode and the consequences of review of the findings and sentence of the trial court. In the civilian courts, appellate review is initiated by a party who deems himself aggrieved by the trial court’s action; in the military practice, some degree of review is automatic in all cases. Commenting on the conse[143] quence of this kind of review, we observed that:
. . Literally . . . [the accused] can never be prejudiced . . . for on retrial, if any, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial. . . . Since prejudice is impossible under this procedure, the evils contemplated by and even prompting the guaranty against double jeopardy are entirely inoperative.” United States v Zimmerman, 2 USCMA 12, 20, 6 CMR 12, 20 (1952).
See also United States v Dean, 7 US CMA 721, 23 CMR 185 (1957).
The Manual for Courts-Martial, United States, 1969 (Rev ed.), specifically prescribes the effect the action of a court-martial that lacked jurisdiction has at a second trial for the same offense. Paragraph 81d(2) provides that in “a case in which the original proceedings were declared invalid because of lack of jurisdiction . . . [the second trial] is subject to the sentence rules provided for rehearings.” The sentence rules provided for rehearings require that an offense “on which a rehearing . . . is held shall not be the basis for punishment in excess of or more severe than the legal sentence upon a previous . . . trial, as ultimately reduced by the convening . . . authority.” Paragraph 81d(l), Manual, supra. Under these provisions, it is clear that, if a court-martial, with or without jurisdiction, proceeds to sentence, its action will bar more severe punishment in later proceedings on the same offense. While the Manual language refers to the sentence action of the court-martial, it manifestly encompasses the court’s action on the merits. Obviously, if the court acquitted the accused of an offense, that offense could not be “the basis for punishment.” This construction of the provision is supported by the notes of the draftsmen of the Manual provision. They indicate that the Manual rule was prescribed in the interest of “fundamental fairness to the accused who should not suffer by being subject to a more severe sentence at the next trial because of mistakes by the Government which were not his fault.” Department of the Army Pamphlet No. 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised Edition, at 15-3. It is suggested that this construction of the Manual for Courts-Martial is contrary to the Manual’s statement that court-martial proceedings “without jurisdiction over either the person or the offense charged are a nullity.” Paragraph 215a, Manual, supra. That statement is set out as a ground for a motion in bar of trial because of lack of jurisdiction over the person or the offense, see Fleiner v Koch, 19 USCMA 630 (1969), and the statement has nothing to do with the effect of one trial proceeding upon a later trial for the same offense. The only specific comment on the matter is that provided in paragraph 81d(2) of the Manual. That comment is, in my opinion, controlling. Considering the language and the intent of the Manual provisions, I am convinced they contemplate that, irrespective of the later determination of the jurisdiction of a court-martial, if it proceeds to trial on the merits, its action is binding at a second trial for the same offense. Manual rules as to procedure have the force of law. See United States v Montgomery, 20 USCMA 35, 38, 42 CMR 227, 230 (1970). I conclude, therefore, that the Court of Military Review was correct in its determination that the accused should not have been required to stand trial again for the offense of which he was acquitted at the first trial.
For the reasons set out here and in Judge Duncan’s opinion, we answer the certified question in the affirmative, and affirm the decision of the Court of Military Review.