direction with respect to proceeding with the trial. If the appointing authority finds that the action of the court was proper but that the defect raised by the motion can be cured, he will take appropriate steps to remedy the defect and return the record to the court for trial as above indicated. If he does not wish to return the record for trial, he will take appropriate action to conclude the case by the publication of appropriate orders in cases wherein the action of the court operates as a bar to further prosecution. Generally such action should be taken if the proceedings are terminated by sustaining a motion to dismiss because of former trial, pardon, constructive condonation of desertion, promised immunity, or when findings of not guilty are entered on motion. In other cases, he will take action appropriate under the circumstances.

g. Inadmissible defenses and objections. Such objections as that the accused at the time of the arraignment is undergoing a sentence of a general courtmartial, or that owing to the long delay in bringing him to trial he is unable to disprove the charge or to defend himself, or that his accuser was actuated by malice or is a person of bad character, or that he was released from arrest upon the charges, are not proper subjects for motion prior to plea, however much they may constitute ground for a continuance, or affect the questions of the truth or falsity of the charge, or of the measure of punishment. The same is true in general as to objections that are solely matters of defense under a plea of not guilty and, in effect, merely contest the truth of the allegations of a charge.

65. MOTIONS TO DISMISS-General. A motion to dismiss properly relates to any defense raised in bar of trial. Among the defenses which may be raised by such motion prior to entering a plea are lack of jurisdiction, failure of the charges to allege an offense (66), running the statute of limitations (67), former trial (68), pardon, constructive condonation of desertion, former punishment, and promised immunity (69).

66. MOTIONS TO DISMISS-Lack of jurisdiction; failure to allege an offensea. General. If the court lacks jurisdiction or if the charges fail to allege any offense under the Articles of War the proceedings are a nullity. These defenses and objections cannot be waived and may be asserted at any time.

b. Jurisdiction of the court over the person. A motion to dismiss on the ground of lack of jurisdiction may be based on the absence of any of the conditions stated in 7.

c. Failure to allege an offense. By a motion to dismiss the accused may object to the sufficiency of a specification to allege any crime or offense. With the exceptions stated in 12, courts-martial do not have jurisdiction to try any offenses not cognizable under the Articles of War. Unless the specification of a charge alleges an offense of which a court-martial may take cognizance, a motion to dismiss should be granted as to the specification. If the motion is sustained the court will direct that the specification be stricken and disregarded.

67. MOTIONS TO DISMISS-Statute of Limitations. Exemption from liability to be tried or punished by a court-martial for all but a few crimes or offenses may be claimed after two (or three) years with certain limitations. See Article 39 in Appendix 1 and the notes thereunder. In the case of any offense the trial of which in time of war shall be certified by the Secretary of the Army to be detrimental to the prosecution of the war or inimical to the Nation's security, the period of limitation for the trial of the offense shall be extended to the duration of the war and six months thereafter. See Article 39.

The period of limitations begins to run on the date of the commission of the offense. Certain offenses, as, for example, wrongful cohabitation, are continuing offenses, and the accused cannot avail himself of the statute of limitations for any part of continuing offenses not within the bar of the statute of limitations. Fraudulent enlistment (A. W. 54) is not a continuing offense. Absence without leave (A. W. 61) and desertion (A. W. 58) are not continuing offenses for the purpose of computing the time under the statute of limitations or for the purpose of determining whether the offenses were committed in time of war. For these purposes the offenses are committed, respectively, on the date the person first receives pay and allowances under the enlistment, or so absents himself or deserts.

In applying this statute the court will be guided by the crime or offense as described in the specification, and not by the Article of War stated in the charge. Thus, if an offense properly chargeable

under Article 93 is erroneously charged under Article 96, the limitation is nevertheless three years rather than two years.

If it appears from the charges that the statute has run against an offense or (in the case of a continuing offense) a part of the offense charged, the court will bring the matter to the attention of the accused and advise him of his right to assert the statute. This action should, as a rule, be taken at the time of the arraignment. If the accused pleads guilty to a lesser included offense against which the statute of limitations has apparently run, the court will advise the accused of his right to interpose the statute in bar of trial and punishment as to that offense.

The burden is not on the defense to show that neither absence from the jurisdiction of the United States nor other impediment prevents the accused from claiming exemption under Article 39. For example, if it appears from the charges in a peacetime desertion case that more than three years have elapsed between the date of the commission of the offense and the date of the arraignment, the motion should be sustained unless the prosecution shows by a preponderance of evidence that the statute does not apply because of periods which, under the second proviso of Article 39, are to be excluded in computing the three years.

68. MOTIONS TO DISMISS-Former trial. No person shall be tried a second time for the same offense without his consent; but no proceeding in which an accused has been found guilty by a courtmartial upon any charge or specification shall be held to be a trial in the sense of Article 40 until the reviewing and, if there be one, the confirming authority, shall have taken final action upon the case (A. W. 40).

A person has not been "tried" in the sense of Article 40 if the proceedings were void for any reason, such as a lack of jurisdiction to try the person or the offense.

The same acts constituting a crime against the United States cannot, after acquittal or conviction of the accused in a civil or military court deriving its authority from the United States, be made the basis of a second trial of the accused for that crime in the same or in another such court without his consent. The civil courts in the Territories, in Puerto Rico and the Canal Zone, as well as the

district and other courts of the United States, derive their authority from the United States. The same acts when committed in a State may constitute two distinct offenses, one against the United States and the other against the State. In such a case trial by a State court does not bar trial by court-martial.

In general, once a person is tried in the sense of Article 40, he cannot without his consent be tried for another offense if either offense is necessarily included in the other and if the two offenses differ from each other in degree only. Thus a trial for manslaughter may be interposed in bar of trial for the same homicide subsequently charged as murder because both offenses involve the same unlawful killing and are distinguished from each other only by the state of mind of the accused. On the other hand, a trial for a homicide is not barred by a former trial for an assault and battery. See however, 72b, for an example of a case when the defense of res judicata may be asserted. A trial for absence without leave (A. W. 61) bars trial for the same absence charged as desertion and vice versa if the same enlistment is involved in both cases, since both offenses involve the same unauthorized absence. But when a soldier deserts and reenlists, trial for absence without leave from the second enlistment does not bar trial for desertion from the first enlistment although the same period of time may in part be involved in both cases.

Subject to the rules as to documentary evidence, including the rules as to the use of copies, proof of former trial by court-martial or civil court may be, respectively, by the order publishing the case (or by the record of trial if no order was published or the order is not sufficiently explicit), and by the indictment and record of conviction or acquittal.

69. MOTIONS TO DISMISS-Miscellaneous Defenses and Objections-a. Pardon. A pardon is an act of the President which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. A pardon may be interposed in bar of trial by a motion to dismiss. The usual rules as to documentary evidence apply to a written pardon, whether in the nature of an individual pardon, or of a general amnesty. If the document is not sufficiently explicit to determine whether the motion should be sustained, the defense may introduce

other evidence tending to establish the pardon. In the case of a constructive pardon, facts and circumstances constituting the pardon must be proved.

b. Constructive condonation of desertion. If a deserter has been unconditionally restored to duty without trial by an officer exercising general court-martial jurisdiction, this action amounts to a constructive condonation of the desertion and may be interposed in bar of trial subsequently ordered. If an officer exercising general court-martial jurisdiction shall have directed that a deserter be restored to duty but that he remain subject to trial for the offense, such a restoration is not a constructive condonation of the desertion and the individual so restored remains subject to trial.

c. Former punishment. Punishment previously imposed under Article 104 for a minor offense may be interposed in bar of trial for the same offense. For a definition of "minor" offense, see 118. Such punishment, however, does not bar trial for another crime or offense growing out of the same act or omission. For instance, punishment under Article 104 for reckless driving would not bar trial for manslaughter if the reckless driving caused a death.

Administrative reduction pursuant to Army Regulations is not a bar to trial. d. Promised immunity. See 134d (Testimony of Accomplices).

70. MOTIONS TO GRANT APPROPRIATE RELIEF-a. General. A motion to grant appropriate relief is one made to cure a defect of form or substance which impedes the accused in properly preparing for trial or conducting his defense. Among the objections which may properly be raised by such a motion are objection to a charge or specification in matters of form only; a substantial defect in the conduct of the pretrial investigation (see 35a, 70c; A. W. 46); prejudicial joinder in a joint trial (70d); and misjoinder in common trial (34). In general these objections are waived if not asserted prior to the entry of a plea, but the court may grant relief from the waiver for good cause (64). The motion should briefly and clearly set forth the nature of and the grounds for the request, objection or question it is intended to make or raise. The motion admits nothing either as to the jurisdiction of the court or the merits of the case.

b. Defect in charges and specifications. If a specification, although alleging an offense cognizable by court-martial, is defective in some matter of form as, for example, that it is inartfully drawn, indefinite, or redundant or that it misnames the accused, or does not contain sufficient allegations as to time and place, the objection should be raised by a motion for appropriate relief. If the specifiIcation is defective to the extent that it does not fairly apprise the accused of the particular offense charged, the court upon the defect being brought to its attention will, according to the circumstances, direct the specification to be stricken and disregarded or continue the case to allow the trial judge advocate to apply to the convening authority for directions as to further proceedings, or permit the specification to be amended so as to cure such defect, and continue the case for such time as in the opinion of the court may suffice to enable the accused properly to prepare his defense in view of the amendment. If it clearly appears that the accused has not in fact been misled in the preparation of his defense by a defect in the form of the charge and specifications, and that a continuance is not necessary for the protection of his substantial rights, the court may proceed immediately with the trial upon directing an appropriate amendment of the defective charge or specification.

c. Defects arising out of the pretrial investigation. A substantial failure to comply with the requirements of 35a and Article 46b may be brought to the attention of the court by a motion for appropriate relief. Such a motion should be sustained only if the accused shows that the defect in the conduct of the investigation has in fact prevented him from properly preparing for trial or has otherwise injuriously affected his substantial rights. If the motion is sustained the court may grant a continuance to enable the accused to prepare his defense properly, or may adjourn the proceedings to permit compliance with 35a and Article 46b and report the basis of its action to the appointing authority. The latter may, after taking necessary action to cure the defect, return the record to the court with instructions to proceed with the trial.

d. Motion to sever. A motion to sever is a motion by one of two or more coaccused to be tried separately from the other or others. Occasion for the motion

may arise in either a joint or a common trial.

In a common trial a motion to sever will be liberally considered. It should be granted on the motion of an accused arraigned in a common trial with other accused against whom offenses are charged which are unrelated to those charged against the mover (34).

The motion should be granted in any case if good cause is shown; but when the essence of the offense is a combination between the parties-conspiracy, for instance the court may properly be more exacting than in other cases as to whether the facts established in support of the motion constitute good cause. The more common grounds for this motion are that the mover desires to avail himself on his trial of the testimony of one or more of his coaccused, or of the testimony of the wife of one, or that a defense of the other accused is antagonistic to his own or that evidence as to them will in some manner prejudice his defense.

If the motion is granted, the court I will first decide which accused it will proceed to try and, in the case of joint charges, direct an appropriate amendment of the charges and specifications. For instance, if after severance the trial of B is directed in a case in which A and B are jointly charged with an offense, the specification should be amended to allege in effect either that B committed the offense or that B committed the offense in conjunction with A. The amendment should be formally made as a part of the proceedings, no actual alteration being made in the charge sheet itself. For an example see the form of record, Appendix 6. When, as a result of action on a motion to sever, trial of one or more accused is deferred, the trial judge advocate will report the facts at once to the appointing authority so that he may take appropriate action to try the deferred accused or to make other disposition of the charges as to such accused.

e. Miscellaneous motions for relief. In addition to grounds for motions discussed above in this paragraph (70) there are others which may be made for the purpose of raising a specific objection on the merits prior to trial. For examples, see 111 and 112 (Insanity). If a motion amounts in substance to an application for a continuance, or to a challenge, motion to dismiss, or other matter

for which a procedure is provided, the motion will be regarded as such application, challenge, motion to dismiss, or other matter. A motion to elect-that is, a motion that the prosecution be required to elect upon which of two or more charges or specifications it will proceed-will not be granted.

71. PLEAS. Pleas in court-martial procedure include guilty, not guilty, and pleas corresponding to permissible findings of lesser included offenses. See 78 (Findings). The court may refuse to accept a plea of guilty and should not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. Should an accused enter a contradictory plea such as guilty without criminality or guilty to a charge after pleading not guilty to all specifications thereunder, such contradictory plea will be regarded as a plea of not guilty. The court should ordinarily grant an application not manifestly made in bad faith to change or modify a plea.

The court will proceed to trial and judgment as if he pleaded not guilty when an accused fails or refuses to plead or answers foreign to the purpose. See Article 21. By standing mute an accused does not waive any objections otherwise waived by a plea.

Except as to matters covered by a plea of guilty, a plea admits nothing as to the jurisdiction of the court and nothing as to the merits of the case. Any admission involved in a plea of guilty to any offense has effective existence as such only as long as that plea stands. A plea of not guilty or guilty will, in the absence of a motion to grant appropriate relief because of a defect in misnaming accused, be regarded as a waiver of any objection based on a misnomer of accused, whether under an alias or otherwise.

The accused has a legal and moral right to enter a plea of not guilty even if he knows he is guilty. This is so because his plea of not guilty amounts to nothing more than a statement that he stands upon his right to cast upon the prosecution the burden of proving his alleged guilt.

A plea of guilty does not exclude the taking of evidence, and in the event that there be aggravating or extenuating circumstances not clearly shown by the specification and plea, any available and admissible evidence as to such circumstances should be introduced.

In all cases in which a plea of guilty is entered and also whenever an accused, in the course of the trial following a plea of guilty, makes a statement to the court, in his testimony or otherwise, inconsistent with the plea, the summary court, the president of a special courtmartial, and the law member of a general court-martial will make such explanation and statement to the accused as the occasion requires. See in this connection Appendix 5. If, after such explanation and statement, it appears to the court that the accused in fact entered the plea improvidently or through lack of understanding of its meaning and effect, or if after such explanation and statement the accused does not voluntarily withdraw his inconsistent statement, the court will proceed to trial and judgment as if he had pleaded not guilty. See Article 21. Occasion for making this explanation and statement frequently arises in desertion cases when the accused, after pleading guilty, testifies or states in effect that throughout his unauthorized absence he had the intention of returning. When, after a plea of guilty has been received, the accused asks to be allowed to withdraw it and substitute a plea of not guilty or any other corresponding plea he should be permitted to do so.

One plea may be entered as applicable to all or to certain specified charges and specifications, such as "Not guilty to all charges and specifications."

72. MOTIONS PREDICATED UPON THE EVIDENCE-a. Motion for a finding of not guilty. At the close of the case for the prosecution and before the opening of the case for the defense the court may, on motion of the defense for findings of not guilty, consider whether the evidence before the court is legally sufficient to support a finding of guilty as to each specification designated in the motion. The court in its discretion may require that the motion specifically indicate wherein the evidence is legally insufficient. The court will determine the matter as an interlocutory question. See 51 and Article 31. If there is any substantial evidence which, together with all reasonable inferences therefrom and all applicable presumptions, fairly tends to establish every essential element of an offense charged or included in any specification to which the motion is directed, the motion as to such specification will not be granted. The court in its discretion may defer action on any

such motion as to any specification and permit or require the trial judge advocate to reopen the case for the prosecution and produce any available evidence. If the motion is sustained as to any specification the court will forthwith enter a finding of not guilty of such specification and, when appropriate, of the proper charge.

b. Res Judicata. Res judicata is the rule that an issue of fact or law put in issue and finally determined by a court of competent jurisdiction cannot be disputed between the same parties in a subsequent trial even if the second trial is for another offense. Thus if B has been acquitted by court-martial of having committed an assault with a knife upon A, B can assert the acquittal as a defense if, upon the subsequent death of A as a result of the wound inflicted by the assault, B is later tried for murder, although the defense of former trial might not be available to him (68). A motion raising the defense of res judicata should ordinarily be made after the prosecution has rested its case or later unless it can be shown at an earlier stage of the trial that the issues of fact or law in the case on trial and in the case relied upon to sustain the motion are the same. Proof of the former adjudication may be made by the record of the trial relied on to sustain the motion.

Chapter XIV-Procedure NOLLE PROSEQUI-ACTION WHEN EVIDENCE INDICATES AN OFFENSE NOT CHARGEDINTRODUCTION OF EVIDENCE

73. NOLLE PROSEQUI. A nolle prosequi is a declaration of record by the prosecution that by direction of the appointing authority the prosecution withdraws a certain specification, or a certain specification and charge, and will not pursue the same further at the present trial. A nolle prosequi will be entered only when directed by the appointing authority, who may give such direction either on his own initiative or on application duly made to him. In a joint case or in a case referred for a common trial he may limit the direction to one or more of the accused.

Proper grounds for such direction include substantial defect in the specification, insufficiency of available evidence to prove the specification, and the fact that it is proposed to use one of the accused as a witness.