40.165. Voting by members, procedure, general or special court-martial --instructions, content--exceptions--judge to rule on all questions of law.
Voting by members, procedure, general or special court-martial--instructions, content--exceptions--judge to rule on all questions oflaw.
40.165. 1. Voting by members of a general or specialcourt-martial on the findings and on the sentence shall be bysecret written ballot. The junior member of the court shall ineach case count the votes. The count shall be checked by thepresident, who shall forthwith announce the result of the ballotto the members of the court.
2. The military judge and, except for questions ofchallenge, the presiding officer of a court-martial without amilitary judge shall rule upon all questions of law and allinterlocutory questions arising during the proceedings. Any suchruling made by the military judge upon any question of law or anyinterlocutory question other than the factual issue of mentalresponsibility of the accused, or by the presiding officer of acourt-martial without a military judge upon any question of lawother than a motion for a finding of not guilty, constitutes theruling of the court.
3. Before a vote is taken on the findings, the militaryjudge shall in the presence of the accused and counsel, instructthe members of the court as to the elements of the offense andcharge them:
(1) That the accused must be presumed to be innocent untilguilt is established by legal and competent evidence beyondreasonable doubt;
(2) That in the case being considered, if there is areasonable doubt as to the guilt of the accused, the doubt mustbe resolved in favor of the accused and he must be acquitted;
(3) That, if there is a reasonable doubt as to the degree ofguilt, the finding must be in a lower degree as to which there isno reasonable doubt; and
(4) That the burden of proof of establishing the guilt ofthe accused beyond reasonable doubt is upon the prosecution.
4. Subsections 1, 2, and 3 of this section do not apply to acourt-martial composed of a military judge only. The militaryjudge of such a court-martial shall determine all questions oflaw and fact arising during the proceedings and, if the accusedis convicted, adjudge and impose appropriate sentence. Themilitary judge of such a court-martial shall make a generalfinding and shall in addition on request find the factsspecially. If an opinion or memorandum of decision is filed, itwill be sufficient if the findings of fact appear therein.
(L. 1984 H.B. 1035 § 52)