United States v. Holt

9 C.M.A. 476, 9 USCMA 476, 26 C.M.R. 256, 1958 CMA LEXIS 498, 1958 WL 3355

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

The accused pleaded guilty to several charges in violation of the Uniform Code of Military Justice. In due course the court-martial returned findings of guilty on all charges. Then, after deliberating in closed session for several minutes in regard to the sentence, it reopened and requested additional instructions from the law officer. The part of the proceedings which is important here is as follows:

“Pres : Is a dishonorable discharge required whenever a sentence of six months or greater is imposed?

“LO: A court shall not, by a single sentence which does not include dishonorable or bad conduct discharge, adjudge against an accused confinement at hard labor for a period greater than six months. Does that answer that question?

‘Tres: Does any member of the court wish to have that further explained?

(There was no audible answer.) ”

A similar instruction was considered by us in United States v Varnadore, 9 USCMA 471, 26 CMR 251. For the reasons explained therein, the instruction is erroneous. Accordingly, the decision of the board of review as to sentence is reversed and the sentence is set aside. A rehearing on the sentence may be ordered.

Judge Ferguson concurs.