United States v. McWhirter

11 C.M.A. 420, 11 USCMA 420, 29 C.M.R. 236, 1960 CMA LEXIS 307, 1960 WL 4487

• Court: United States Court of Military Appeals
• Decided: April 22, 1960
• Docket: No. 13,684
• Status: Published

Opinions

Opinion of the Court

GeoRge W. LatimeR, Judge:

The accused was tried by a special court-martial for the commission of offenses in violation of Articles 92, 128 and 134, Uniform Code of Military Justice, 10 USC §§ 892, 928 and 934, respectively. He was found not guilty of the Article 134 offense but was convicted of violating the other two Articles. Prior to the court going into secret session to deliberate on the sentence, the president.properly informed the members on the maximum sentence which could be imposed by a special court. When the court opened he announced the sentence in the following language:

“President: Airman Basic Mc-Whirter, 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 all members present at the time the vote was taken concurring, sentences you:

“To four months at hard labor, forfeiture of two-thirds pay for four months and a bad conduct discharge.”

After the court adjourned and on the same day, it was brought to the attention of the president by another member of the court that the words “to be confined” had been omitted when the sentence was announced. Thereupon, the president attempted to reconvene the court to correct the error but, because the members had dispersed, reconvening was not possible at that time. On the next day the court met and the sentence was corrected to include the missing phrase, but the amendment was made over the objection of the defense counsel.

We granted accused’s petition for review to determine whether the proceedings were regular and the sentence correctable after adjournment. Our order granting the petition was prior to the release of our opinion in United States v Hollis, 11 USCMA 235, 29 CMR 51. While the attempted corrections in the two cases were at different levels, for all practical purposes the issue decided in that case is identical with the one asserted by the accused in the case at bar. Accordingly, the holding in that instance is dispositive of the question raised here and upon its authority the decision of the board of review is affirmed. It is so ordered.

Chief Judge Quinn concurs.