Page:United States Statutes at Large Volume 82.djvu/1382

 1340

70A Stat. 5 3.

PUBLIC LAW 90-632-OCT. 24, 1968

[82 STAT.

the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty." (20) Section 849(a) (article 49(a)) is amended by inserting after the word "unless" the words "the military judge or court-martial without a military judge hearing the case or, if the case is not being heard,". (21) Section 851 (article 51) is amended— (A) by amending the first sentence of subsection (a) to read as follows: "Voting by members of a general or special courtmartial on the findings and on the sentence, and by members of a court-martial without a military judge upon questions of challenge, shall be by secret written ballot."; (B) by amending the first three sentences of subsection (b) to read as follows: "The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a courtmartial without a military judge may change his ruling at any time during the trial." (C) by striking out the words "law oiRcer of a general courtmartial and the president of a special court-martial shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense and charge the court" in the first sentence of subsection (c) and inserting the words "military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them" in place thereof; and (D) by adding the following new subsection at the end thereof: " (d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a courtmartial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and.shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein." (22) Section 852 (article 52) is amended— (A) by inserting the words "as provided in section 845(b) of this title (article 45(b)) or" after the word "except" in subsection (a)(2); and (B) by inserting immediately before the period in the first sentence of subsection (c) the words ", but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence." (23) Section 854(a) (article 54 (a)) is amended to read as follows: " (a) Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be

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