United States v. Stevens

10 C.M.A. 417, 10 USCMA 417, 27 C.M.R. 491, 1959 CMA LEXIS 296, 1959 WL 3655

• Court: United States Court of Military Appeals
• Decided: May 15, 1959
• Docket: No. 11,871
• Status: Published

Opinions

Opinion of the Court

HomeR FeRGüson, Judge:

Appellant filed a petition for grant of review before this Court on June 27, 1958. Thereafter, in lieu of a reply to the petition for grant of review, ap-pellee filed a motion to remand admitting the court-martial lacked jurisdiction because the record reflected appointment of only four of the members who sat, whereas Ax-ticle 16(1), Uniform Code of Military Justice, 10 USC § 816(1), requires a minimum of five.

On August 5, 1958, this Court granted appellee’s motion “to remand the above entitled case to The Judge Advocate General of the Navy for return to the convening authority for a new trial, if practicable.” Acting pursuant thereto, the convening, authority promulgated a supplementary court-martial order, dated August 26, 1958, declaring the findings and sentence invalid and stating, “Another trial is ordered before another court-martial to be hereafter designated.” This Court, on October 23, 1958, denied appellee’s petition for reconsideration of its Order of August 5, 1958. This petition had been filed upon discovery of an order appointing the fifth member of the court. Subsequent pur-ported actions of the con-vening authority in the case were contrary to the Order of this court and void and of no effect.¹

Inasmuch as this Court has heretofore issued an Order which must be complied with, the present motion of appellant-accused to remand is dismissed.

1 After remand of a case, a lower court, or in the military any lower echelon, is without power to modify, amend, alter, set aside, or in any manner disturb or depart from the judgment of the reviewing court. Cf. 3 Am Jur, Appeal and Error, § 1237; United States v Howe, 280 Fed 815 (CA2d Cir) (1922), cert den 259 US 587, 42 S Ct 590, 66 L ed 1077; Chaires v United States, 3 How 611 (US 1845).