was granted. When the court assembled on 7 June the civilian counsel was still absent and the law officer ruled the trial should continue. Held: Considering the accused's desire for his individual civilian defense counsel, as well as the liberal continuances that were granted, the law officer did not abuse his discretion in denying a further continuance, nor can the accused complain that a substantial right of his was prejudiced because his individual counsel was not present during the trial of his case. The individual defense counsel, subsequent to employment by the accused, placed himself, if not voluntarily at least under the belief that it was his public duty to do so, in a position where he was unavailable for the trial of the accused. This he had a right to do, but his action does not require a mandatory unlimited continuance of a court-martial in order for him to be present at a particular trial as individual defense counsel for an accused. CM 376133, Griffiths (1955) 18 CMR 354.

[12 Am Jur, Continuances § 11.]

§ 15.8. Pretrial or out-of-court interview of witness.

Denial of a motion for a continuance to permit the defense counsel to interview the complaining witness as proper where the witness has refused to submit to an interview, see ACM 8768, Doyle, Hain and Gaskey, WITN § 3.27.

§ 15.29. Mental condition of accused.

Motion for continuance as proper method of raising issue of lack of mental capacity of accused at the time of trial, see United States v. Williams, DEFENSES § 31.3.

§ 15.41. Finality of law officer's ruling.

The accused was tried for and acquitted of a certain offense in a California court. When military charges involving the same offense came on for hearing before a court-martial, the accused requested a continuance predicated upon the fact that he had forwarded a letter to the Secretary of the Navy in which he referred to his acquittal by the California court and the Navy policy against a second trial by court-martial and requested the Secretary of the Navy to terminate the military proceedings against him. The continuance was granted by the law officer. Subsequently, the convening authority addressed a letter to the law officer in which he stated that the granting of the continuance on the grounds stated was an abuse of discretion and he directed the law officer to resume the trial of the accused unless there was a reasonable cause for continuance. The law officer noted that it was his view that it was not an abuse of discretion to grant the continuance, nevertheless, he directed the trial to proceed. Held: In yielding to the pressure of the convening authority and ordering the trial to proceed, the law officer abdicated his powers to the convening authority. This was error (U. S. v. Self (No. 2729), 3 USCMA 568, 13 CMR 124). Also, the action of the convening authority constituted illegal interference with the law officer in the exercise of his judicial functions. This interference resulted in prejudice to the accused by depriving him of the opportunity of having the Secretary of the Navy consider his

request for the termination of further proceedings against him, which was a substantial right. (See MCM, 1951, par 5a (6), p 8.) Where the court is in session, the law officer is the proper person to rule on an application for a continuance and his ruling is not subject to review until the trial has been completed; and then only if the ruling was prejudicial to the accused. (See MCM, 1951, par 58d, p 83.) The language of par 58e, MCM, 1951, which provides that an application for an extended delay may be referred by the court to the convening authority is permissive rather than mandatory and consequently, the convening authority has no power or right to make any decision on the matter of a continuance. (Citing U. S. v. Merritt (No. 53), 1 USCMA 56, 1 CMR 56.) [Brosman, J., concurring, stated that the intervention of the convening authority in this case improperly discredited the law officer in the eyes of the members of the court, for it connoted that the convening authority lacked confidence in the ability of an official he had appointed, and who had been certified as competent by The Judge Advocate General. Furthermore, the action of the convening authority amounted to an attempt on his part to influence the action of the court-martial, and the Congressional mandate against command influence is so significant and compelling as to demand reversal on the theory of general prejudice even though the action influenced related to no more than the granting of a continuance. Latimer, J., dissenting, stated that the convening authority has the right to overturn the ruling of the law officer on any motion, or his decision on a matter of administration, which does not amount to a finding of not guilty. (Citing MCM, 1951, par 67f.).]

Held also: In view of Navy policy, it was reasonable for the law officer to grant the continuance until the Secretary of the Navy could reply to the accused's request. (See CMO 1-1941, 22; CMO 5-1945, 203; Sec Nav Instruction 5810.1, JAG: I: 2 CT: au 5 March 1953.) [Brosman, J., concurring. Latimer, J., dissenting.] United States

v. Knudson (No. 3365), ↳ USCMA 587, 16 CMR 161.

§ 16.1. Generally.

§ 16. Mistrial

Authority of convening authority or law officer to declare mistrial, see U. S. v. Stringer, DEFENSES § 23.3.

§ 17.1. Generally.

§ 17. Stipulations

Establishing court-martial jurisdiction over a merchant seaman by a stipulation of facts, see United States v. Garcia, CRT-M § 47.15. Stipulation as not rendering record of trial incomplete so that it will not support bad conduct discharge, see NCM 378, Garza, SENT & PUN § 25.1.

II. CONDUCT OF TRIAL

§ 23. Publicity of Proceedings

§ 23.15. Newspaper accounts.

A newspaper reporter was present throughout the trial at the invitation of the base public information officer. However, there was no showing or claim that any of the local news stories ever came to the attention of members of the court during the trial. Furthermore, there was nothing inflammatory in the newspaper articles and no attempt was made to editorialize upon the merits of the case. Also, individual defense counsel questioned members of the court at the outset of the trial about newspaper articles published before the trial and found no reason to challenge any member for cause. Held: If a local newspaper considers a military court-martial trial of sufficient public interest to detail a reporter to follow the trial developments and if the public has not been ordered excluded from the trial for security reasons, this fact in itself is not prejudicial to the accused. (Citing U. S. v. Vigneault (No. 2432), 3 USCMA 247, 12 CMR 3, 10, 11.)

Held also: The publication of a photograph of the members of the court in a base newspaper subsequent to the trial, is not in itself prejudicial to the accused, irrespective of the time of taking the photograph and irrespective of the provision of par 53e, MCM, 1951, forbidding the taking of photographs during either open or closed sessions of a court-martial without prior written approval of the Secretary of the Air Force. Such prohibition is aimed at preventing compromise of the dignity of the court while in session. ACM 8803, Berry (1954) 16 CMR 842.

§ 25.1. Generally.

§ 25. Views and Inspections

The record of trial indicated that all members of the court, prosecution, defense, accused and the reporter made a trip to the scene of the incident in question. At the scene all the members of the court, the prosecution and the defense took part in a re-enactment of the alleged offense. There was no indication of the appointment and swearing of an escort for the court. Held: Conducting the view without appointing and swearing an escort for the court constituted error. However, the error was not prejudicial since the entire proceedings took place in the presence of the accused and his counsel and within express "no objections" by the defense. The failure of the defense to voice an objection during the trial constitutes a waiver. (Citing MCM, 1951, par 54e; CM 369617, Reid, 14 CMR 438.)

Held also: Under par 54e, MCM, 1951, re-enactments at views are improper. However, an accused will be deemed to have waived objection to misconduct of this kind by failing to object or otherwise bring the matter to the attention of the court at the trial if he or his counsel have knowledge of such misconduct and the opportunity to object thereto. In the instant case the accused and his counsel not

only had the requisite knowledge and opportunity, but, in addition, the defense counsel participated in the re-enactment. This constitutes waiver. (Citing State v. Ballew, 83 SC 82, 63 SE 688; State v. Baker, 28 Idaho 727, 156 P 103; State v. Martensen, 26 Utah 312, 72 P 562; Carpenter v. Carpenter, 98 NH 440, 101 A 628; 53 Am Jur, Trial, sec 450; 150 ALR 968-969.) ACM S-10826, Martin (1955) 19 CMR

§ 27. Conduct and Deliberations of Court, Generally

§ 27.1. Generally.

Law officer's submission of citations of other cases to the court as part of his instructions, see United States v. Lowry, infra § 53.41.

Out-of-court proceeding by court-martial during recess as subject to review by the Court of Military Appeals though defense counsel failed to object after court reconvened, see United States v. Walters, REVIEW § 45.31.

Absence of accused from unrecorded conference between court and both counsel, see NCM 354, Stuart, SENT & PUN § 25.1.

Permitting court to have access to the Manual for Courts-Martial, see ACM 8768, Doyle et al, infra § 53.45.

Unreported conference between the court and counsel during recess in absence of accused and reporter as error, see ACM S-9711, Holbrook, EVID§ 127.17.

§ 27.3. Out-of-court communications.

See United States v. Walters, infra § 31.1.

§ 27.4. Command influence.

In support of a motion for appropriate relief on the ground that the convening authority had exerted undue influence, the accused testified that at a staff meeting at which at least six members of the court had been present, the commanding general and convening authority stated that he was dissatisfied with the findings which a court-martial had made in another case and that he would reprimand the court. The meeting took place before any investigation of the accused's conduct had begun and at least several weeks before the court was appointed. Held: No improper command influence was exerted since the convening authority did not at any time instruct the court which tried the accused and the alleged remarks were, with respect to both time and subject matter, so remote from the accused's trial as to render it unreasonable to believe that the court members were improperly influenced thereby. (Distinguishing U. S. v. Littrice (No. 2809), 3 USCMA 487, 13 CMR 43; U. S. v. Hunter (No. 2819), 3 USCMA 497, 13 CMR 53. Cf. UCMJ, Art 37; MCM, 1951, par 38; U. S. v. Isbell (No. 3319), 3 USCMA 782, 14 CMR 200.) Furthermore, members of a court-martial are only disqualified for cause when they are influenced adversely to an accused, and, in this case, although the members of the court were carefully examined as to possible grounds of disqualification, not one question was asked as to the possible effect of the general's remarks or even if any of the

members had heard such remarks. ACM 8656, West (1954) 16 CMR 587.

The accused were convicted of a mutiny occurring at a post stockade. While the case was pending before the board of review, the board was furnished with a transcript of statements made at a conference held with the court-martial members the day before the trial commenced. The conference was attended by the convening authority, the chief of staff, the law officer, a recording officer, and members of the court. At this meeting, the staff judge advocate explained that there had been difficulties at the post stockade because of dissident elements; that firm and prompt action was necessary in cases emanating from the stockade, and that the failure to take such action would aggravate the problem. The board of review held the error in the exercise of command influence was jurisdictional, declared the findings and sentence void, and sent the case back for a new trial. The case was certified to the Court of Military Appeals.

Held that:

- the board of review could consider the transcript of the pretrial meeting even though it was not reflected in the record of trial. [Latimer, J., stated that the board could do so to determine whether jurisdictional error was involved.] [Quinn, C. J., expressed the view that on a proper showing, a board of review has the power to ascertain the existence of command control, even though no suggestion of it appears in the record of trial itself, on the theory that "questions of a general public nature" affecting the interest of the state may be determined by an appellate court without such question having been raised in the trial court (4 CJS, Appeal and Error, § 242). He noted that a question of command control may properly be considered as one which gravely affects the military community.] [Brosman, J., expressed the view that the board of review had the power to consider the transcript of the pretrial conference, without regard to any question of jurisdiction, particularly in view of Rule IX F in the Uniform Rules of Procedure for Proceedings in and before Boards of Review, by which these agencies are granted the authority to consider matters outside the record of trial for certain purposes. He added that both boards of review and the Court of Military Appeals possess authority to correct a fundamental error which corrupts an entire proceeding and challenges its integrity, and that an undisputed and flagrant instance of command control, as in the instant case, amounts to such a fundamental error. He also stated that allowing a writ of error coram nobis as a remedy for service personnel conforms to basic Congressional intent that a military accused person shall be granted, wherever possible, rights analogous to those enjoyed by the civilian criminal defendant, and that such a writ should be usable in the instant case.]

- the improper exercise of command influence was not a jurisdictional error so as to deprive the court of jurisdiction over the cause. However, the remarks of the staff judge advocate at