United States v. Hoff

19 C.M.A. 246, 19 USCMA 246, 41 C.M.R. 246, 1970 CMA LEXIS 955, 1970 WL 7315

• Court: United States Court of Military Appeals
• Decided: February 20, 1970
• Docket: No. 22,602
• Status: Published

Opinion

Opinion of the Court

FERGUSON, Judge:

In United States v Johnson, 18 USCMA 436, 40 CMR 148 (1969), we reversed as to sentence because the president failed to inform the court when voting on proposed sentences it should begin with the lightest proposal and continue in this manner until a sentence is adopted by the concurrence of the required number of members. See also United States v Newton, 18 USCMA 562, 40 CMR 274 (1969); United States v Conner, 19 USCMA 74, 41 CMR 74 (1969); United States v Dues, 19 USCMA 130, 41 CMR 130 (1969).

In the case at bar, the president failed to give any instructions on voting procedure, paragraph 765(2), Manual for Courts-Martial, United States, 1969 (Revised edition); United States v McDowell, 19 USCMA 151, 41 CMR 151 (1969). Prejudicial error is apparent. United States v Johnson, supra. Reversal as to sentence is required.

The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing on sentence may be ordered.

Chief Judge Quinn and Judge DAR-DEN concur.