P. 74, par. 53d. After the words "see 74f(1) for procedure" insert the following:

The law officer may not appear before the court in closed session to assist in putting the sentence in proper form. Numerous cases hold a violation of this language to be error, and, in some cases, prejudicial error as to the sentence. Art. 26(b), Art. 39, 74ƒ(1), MCM, 1951, U.S. v. Keith, 1 USCMA 493, 4 CMR 85.

P. 74, par. 53d. Add new subparagraph at end:

Members of general and special courts-martial, including the President of a special court-martial, shall not have access to or use in any closed sessions, the Manual for Courts-Martial, reports of the United States Court of Military Appeals, reports of Boards of Review, or any other legal reference material. Members of general and special courts-martial, except the President of a special court-martial, shall not have access to or use any such publications or material in open sessions. See U.S. v. Rinehart, 8 USCMA 402, 24 CMR 212.

P. 74, par. 53e. Delete the second sentence of the first subparagraph and substitute therefor:

Unless otherwise limited by departmental regulations, however, the convening authority or the court may, for

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security or other good reasons, direct that certain spectators or classes of spectators be excluded from a trial, but this authority should be most cautiously exercised. See U.S. v. Brown, 7 USCMA 251, 22 CMR 41.

P. 74, par. 53g. Revise the first sentence to read as follows: Both sides are entitled to an opportunity properly to present and support their respective contentions, by argument or otherwise, upon any question or matter presented to the court for decision, including the sentence to be imposed. See 75a. See U.S. v. Waller, 18 CMR 473, 481.

P. 75, par. 53h. Change the period at the end of the third sentence thereof (ending "in the premises.") to a comma, and insert:

except that, in a general court-martial, the explanation to the accused of his right to remain silent or testify as a witness should, if such explanation is required, be made in an out-of-court session. See U.S. v. Endsley, 10 USCMA 255, 27 CMR 329.

P. 77, 78,
par. 55a.
Delete the last four words of line 7 (may,
in its discretion,) and the remainder of page 77. Delete the first
eight words of line 1, page 78, (through "latter"). Insert:
must nevertheless proceed to a determination of the
specification (s) referred to it for trial (U.S. v. Johnpier,
12 USCMA 90, 30 CMR 90). In this-

P. 79, par. 57b. Add the following sentence:
Where, however, an accused raises a defense or an objec-

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792, 27 CMR 60. P. 252, par. 140a. Delete the entire last subparagraph of paragraph 140a. See U.S. v. Price, 7 USCMA 590, 23 CMR 54. P. 254, par. 141. Add the following new third paragraph: The accuracy of the court interpreter's translation of testimonial questions and answers is in the nature of a question of fact and, therefore, may be the subject of impeachment. The accused may challenge the accuracy of the court interpreter's translations either through cross-examination of the interpreter, or by means of calling a counter-interpreter. Although the exactness of the translation of the court interpreter may thus be questioned by the opposing party, the law officer (or the president of a special court-martial) may in his discretion limit this procedure to prevent undue delay in the trial. See 50a. See U.S. v. Rayas, 6 USCMA 479, 20 CMR 195.

P. 255, par. 142b. First paragraph, insert the following sentence between the present first and second sentences:

However, there must be some independent evidence of the exciting or startling event before the statement may be admitted. See U.S. v. Mounts, 1 USCMA 114, 2 CMR 20.

P. 260, par. 143b(1). Insert the following sentence following the third sentence in the third subparagraph:

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On cross-examination, the party against whom the writings are to be admitted may test the genuiness of the handwriting exemplars and the accuracy of the testimony of the witness who identified them, whether or not a collateral issue is thereby raised. See U.S. v. McFerren, 6 USCMA 486, 20 CMR 202.

P. 271, lines 1 and 2. Delete "or on the ground that it does not appear that the deponent is unavailable as a witness," and insert: See U.S. v. Mulvey, 10 USCMA 242, 27 CMR 316.

P. 271, line 3. After the sentence ending "objection.”, insert: In the absence of waiver by the defense, the prosecution may not introduce into evidence a deposition taken on written interrogatories at the instance of the prosecution if the accused was not given an opportunity to be present with his counsel at the taking of such deposition. See U.S. v. Jacoby, 11 USCMA 428, 29 CMR 244.

P. 277, par. 148e. Line 14, after the word "polygamy” insert the word "adultery". See U.S. v. Leach, 7 USCMA 388, 22 CMR 178.

P. 280, par. 1496(1), in line six on indicated page, immediately after the word "misconduct", insert the following:

(except that an accused's credibility may not be impeached by inquiry into prior juvenile court proceedings or convictions). See U.S. v. Cary, 9 USCMA 348, 26 CMR 128.

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tion which should properly be considered by the court in its determination of guilt or innocence, and which resolves itself into a question of fact, that issue is not purely interlocutory and must be presented to and decided by the court pursuant to appropriate instructions. See U.S. v. Ornelas, 2 USCMA 96, 6 CMR 96.

P. 79, line 5. After sentence ending "causes.", insert: See U.S. v. Williams, 11 USCMA 459, 29 CMR 275, for an example of insufficient cause for withdrawal.

P. 79, par. 56d. This is a new paragraph reading as follows: e. Mistrial. The law officer (president of a special court-martial) may declare a mistrial whenever in his judgment, taking all circumstances into consideration, such action is manifestly necessary in the interests of justice. The declaration of a mistrial is not a bar to further prosecution and is an interlocutory question. See U.S. v. Stringer, 5 USCMA 122, 17 CMR 122.

delete the last sentence of last paragraph and substitute therefor: Also the prohibition is not violated by requiring a person (including an accused) to try on clothing or shoes, to place his feet in tracks, to grow a beard or to shave, or to submit having his fingerprints taken. On the other hand, the prohibition is violated by requiring a person to make a sample of his writing or to utter words for the purpose of voice identification. Also, a person may not be required to give a sample of his urine or to submit to extraction of other body fluids unless such extraction can be accomplished without offending against the canons of decency and fairness. But see U.S. v. Hill, 12 USCMA 9, 30 CMR 9; see also U.S. v. Eggers, 3 USCMA 576, 13 CMR 132; U.S. v. Williamson, 4 USCMA 320, 15 CMR 320, U.S. v. Rosato, 3 USCMA 143, 11 CMR 143; U.S. v. Jones, 5 USCMA 537, 18 CMR 161; U.S. v. Jordan, 7 USCMA 452, 22 CMR 242; U.S. v. Speight, 5 USCMA 668, 18 CMR 292.

P. 285, par. 1516(2). Delete the 1st word in the 8th line ("Communications"), and insert: Confidential communications

P. 285, par. 1516(2). At the end of line 17 (after "are"), insert:

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confidential (See U.S. v. Winchester, 12 USCMA 74, 30 CMR 74)

P. 287, par. 152, line 3. After "instigated", insert: or participated in (U.S. v. DeLeo, 5 USCMA 148, 17 CMR 148)

P. 288, par. 152. Line 11 after the word "above", insert: The rule announced by this paragraph does not preclude the use by the Government of evidence obtained through any search effected by a person subject to the Code who is acting in a purely unofficial capacity, or by American state authorities or foreign authorities, so long as federal agents, including military agents, did not participate in such search. See U.S. v. DeLeo, 5 USCMA 148, 17 CMR 148; U.S. v. Rogan, 8 USCMA 739, 25 CMR 243.

In view, however, of the prohibition against members of the court having copies of the Manual for CourtsMartial (See 53d), he should in open session instruct the court as to the law applicable to the issue ruled upon before closing the court. See U.S. v. Rinehart, 8 USCMA 402, 24 CMR 218.

P. 82, par. 58a. In the first sentence delete the words "A courtmartial" and substitute:

The law officer (president of a special court-martial). See U.S. v. Knudson, 4 USCMA 587, 16 CMR 161.

P. 82, par. 58c. Add the following sentence:

In computing the five or three-day period, the day of service and the day the court meets must be excluded; and it is highly desirable where practicable to exclude Sundays and legal holidays also. See U.S. v. Nichols, 2 USCMA 27, 6 CMR 27.

P. 83, par. 58e. Revise the paragraph to read as follows: e. Application and action thereon.-Application should be made to the law officer (president of a special courtmartial) if the court is in session, otherwise to the convening authority. If the court is in session the law officer rules finally on an application for a continuance and his ruling is not subject to review until the trial has been completed. An application to the law officer (president of a special court-martial) for an extended

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delay may, in his discretion, be referred by him, prior to ruling, to the convening authority for information and advice. The views of the convening authority are, however, advisory only and the law officer in any case bears final responsibility for the ruling. Although the proper time for making an application to the law officer (president of a special court-martial) is after the accused is arraigned and before he pleads he may permit it to be made at any other time. See U.S. v. Knudson, 4 USCMA 587, 16 CMR 161.

P. 87, par. 61f(1). Delete line 16, beginning "martial, should the", through line 19, ending "before a general court-martial”. Insert therefor:

martial, if the accused desires to be represented only by counsel of his own selection, such counsel must be a member of the bar of a Federal or State court. See U.S. v. Kraskouskas, 9 USCMA 607, 26 CMR 387. P. 88, par. 61f(3). In line 15 on page 88, delete the period after the word "proceed" and the remainder of the subparagraph and insert therefor:

, provided that in a general court-martial at least one of the counsel for the defense must be a member of a bar of a Federal or State court. If the accused does not expressly request that he be represented by counsel then present, or if no counsel for the defense in a general court-martial is a member of a bar of a Federal or State court, the court will adjourn pending procurement of a defense counsel who has the requisite qualifications. Regardless of the legal qualifications of individual coun

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This does not include, however, juvenile court convictions.

P. 295, par. 154a. Rewrite subparagraph (3) as follows:

"Ignorance or mistake of fact.-(a) Specific intent offenses. An honest ignorance or mistake of fact will exempt a person from criminal responsibility for crimes requiring a specific intent where such intent depends upon knowledge of a particular fact and the ignorance or mistake of fact negates such knowledge, (U.S. v. Rodriquez-Suarez, 4 USCMA 679, 16 CMR 253) even though that ignorance or mistake be unreasonable or one occasioned by the person's own carelessness or fault (U.S. v. Holder, 7 USCMA 213, 22 CMR 3). For a mistake of fact, however, to constitute a defense, it must be a mistaken belief of such a nature that the conduct would have been lawful and the facts been as the accused believed them to be (U.S. v. Rowan, 4 USCMA 430, 16 CMR 4). Specific intent offenses are those offenses requiring an intentional act (e.g., Articles 83 (1), 87 (through design), and 90 (2)) and offenses requiring a wrongful act plus a concurrent or later formed specific intent (e.g., Articles 85 (a) (1), 107, 121, 123, 131, 132 (1) (a), and assaults with intent to commit certain offenses of a civil nature under Article 134). (b) General intent offenses.-An honest ignorance or mistake of fact will exempt a person from criminal respon

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sibility for a limited number of general intent offenses, even though that ignorance or mistake be unreasonable or one occasioned by the person's own carelessness or fault. Again, for a mistake of fact to constitute a defense to these offenses, it must be a mistaken belief of such a nature that the conduct would have been lawful had the facts been as the accused believed them to be. Offenses included in this category include offenses requiring actual knowledge (e.g., Articles 89, 90, 91, and 92 (2)) and offenses requiring conscious possession (e.g., wrongful possession of certain habit forming drugs under Article 134). In addition an accused may assert as an affirmative defense, to habit forming drug offenses, his honest ignorance or mistake of fact concerning the physical composition of the forbidden substance (U.S. v. Holloway, 10 USCMA 595, 28 CMR 161). In other general intent offenses, only an ignorance or mistake of fact which is both honest and reasonable will exempt a person from criminal responsibility (U.S. v. Holder, 7 USCMA 213, 22 CMR 3)."

P. 295, par. 154a(4). In fifth and sixth lines, delete the words, "and reasonable".

See U.S. v. Sicley, 6 USCMA 402, 20 CMR 118. P. 295, par. 154a(4). Line 13, insert the following after the word "command" and before the parenthesis:

which is not more than one step removed from the De

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sel, the duly appointed defense counsel and assistant defense counsel shall, if the accused so desires, act as associate counsel; otherwise they shall be excused by the president of the court and the court may proceed, except that in a general court-martial it may proceed only if the individual counsel is a member of the bar of a Federal or State court. U.S. v. Kraskouskas, 9 USCMA 607, 26 CMR 387; U.S. v. Davis, 9 USCMA 614, 26 CMR 394.

P. 90, par. 62b. After the first paragraph add the following new paragraph:

The failure of the law officer or court members to disclose any of the foregoing grounds for challenge, or any other facts or circumstances known to them which may be a ground for challenge, may result in a disapproval of the proceedings and a rehearing or dismissal of charges. On the other hand, caution should be exercised that, in disclosing grounds for challenge, other offenses or misconduct of the accused not be disclosed, which could result in reversible error. See U.S. v. Schuller, 5 USCMA 101, 17 CMR 101, U.S. v. Gordon, 2 CMR 322; U.S. v. Fish, 3 CMR 199; U.S. v. Foster, 14 CMR 382; U.S. v. McCoy, 15 CMR 632; U.S. v. Richard, 7 USCMA 46, 21 CMR 172.

P. 90, par. 62c. Change the first sentence to read:

If it appears from any disclosure that the law officer or a member is subject to challenge on any ground stated in clauses (1) to (8) of 62ƒ, and the fact is not disputed, action should be immediately taken by the court as if

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the member had been challenged in accordance with the procedure set forth in 62h (3) and (4). See U.S. v. Jones, 7 USCMA 283, 22 CMR 73.

P. 93, par. 62h(2). Delete lines 5 and 6 and substitute therefor: officer should be considered challenged and action should immediately be taken by the court in accordance with the procedure set forth in 62h (3) and (4); otherwise the challenge, if not withdrawn, must be passed. See U.S. v. Jones, 7 USCMA 283, 22 CMR 73.

P. 93, par. 62h(2), line 10. Change the period after the word "challenge" to a comma and insert:

and such examination may properly extend to statutory disqualifications, implied bias, actual bias, or other matters which may have some substantial and direct bearing on an accused's right to an impartial court. The accused should be allowed considerable latitude in such examination. See U.S. v. Parker, 6 USCMA 274, 19 CMR 400; U.S. v. Lynch, 9 USCMA 523, 26 CMR 303. P. 94, par. 63. Add the following new paragraph:

A witness is one whose declaration is received as evidence for any purpose, whether such declaration be made on oral examination, affidavit, or otherwise. For example, a person who has executed an authenticating certificate to a document introduced in evidence by the prosecution may be deemed a witness for the prosecution. See U.S. v. Moore, 4 USCMA 675, 16 CMR 249. P. 95, par. 65b, lines 2 through 5. Beginning with the comma after "charges" in line 2 delete everything through the comma

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partments of the Army, Navy or Air Force and the Headquarters of the Marine Corps and Coast Guard. See U.S. v. Stone, 9 USCMA 191, 25 CMR 453.

P. 295, par. 154a(4), in line 14. Delete the comma after the word "directive" and substitute therefor a period, and delete the remainder of the subparagraph. See U.S. v. Curtin, 9 USCMA 427, 26 CMR 207.

P. 296. After par. 154b(1) (ending "for any purpose."), insert: In a trial involving more than one accused, a stipulation may be considered only as to those accused who actually join in the stipulation and the court should be so instructed. See U.S. v. Thompson, 11 USCMA 252; 29 CMR 68.

P. 297, par. 154d. Change last sentence to read:

However, a waiver of an objection does not amount to consent if consent is required, and a mere failure to object does not amount to a waiver if so indicated in this Manual or if the denial of a substantial or fundamental right is involved. In no case will a waiver be applied when to do so would result in a manifest miscarriage of justice or would otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings. Under most circumstances, a waiver will not be applied when the accused is represented by a non-lawyer. See U.S. v. Mitchell, 7 USCMA 293, 22 CMR 83; U.S.

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v. Patrick, 8 USCMA 212, 24 CMR 22; U.S. v. Williams, 7 USCMA 434, 22 CMR 224; U.S. v. Anderson, 8 USCMA 603, 25 CMR 107; U.S. v. Blankenship, 7 USCMA 328, 22 CMR 118.

P. 304, par. 158. Delete first sentence of paragraph commencing on line 5, and substitute therefor:

Whether an offense found is necessarily included in an offense charged depends almost entirely on the facts stated and proved in support of the offense alleged. In most cases, an offense found is necessarily included in an offense charged if all of the elements of the offense found are necessary elements of the offense charged. It is possible, however, that a lesser included offense may include elements which are not part of the principal offense charged. For example, if the evidence shows that the accused was engaged in a robbery and shot the victim with intent to kill or at least with intent to inflict great bodily harm, unpremeditated murder under Article 118 (2) may be considered a lesser included offense to felony murder under Article 118(4), although the element of intent is not part of a felony murder charge. See U.S. v. Davis, 2 USCMA 505, 10 CMR 3; U.S. v. Duggan, 4 USCMA, 396, 15 CMR 396; U.S. v. Malone, 4 USCMA 471, 16 CMR 45.

P. 308, par. 162. In the first subparagraph delete the last sen

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after "him" in line 4, change the comma after "introduced" to a period and delete the rest of the sentence. In line 5, place a comma after "if" and insert:

prior to completion of the arraignment.

At the end of par. 65b, insert:

See U.S. v. Davis, 11 USCMA 407, 29 CMR 223, which holds that this subparagraph means that once the arraignment in a particular trial is complete, no additional charge may be introduced at that trial.

P. 97, par. 67d, in the last subparagraph, line 6, change the word "dismiss" to "postpone".

The U.S. Court of Military Appeals in U.S. v. Williams, 5 USCMA 197, 17 CMR 197, and in U.S. v. LopezMalave, 4 USCMA 341, 15 CMR 341, held that a motion to dismiss on grounds of insanity at the time of the trial is not a proper motion; in such circumstances the proper request for relief is an application for a continuance pursuant to 58.

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upon which his legal citations were based. See U.S. v. Bouie, 9 USCMA 228, 26 CMR 8.

P. 97, par. 67e. Omit the last sentence of the first subparagraph. The statement is not invariably correct.

See U.S. v. Ornelas, 2 USCMA 96, 6 CMR 96.

In the second subparagraph, first sentence, immediately after the word "innocence", insert the following:

that issue must be presented to and be decided by the court under the appropriate instructions.

Commence the next word "the" with a capital letter, change the ending period to a comma and add:

in which instance the submission of the motion to the court is also deferred. See U.S. v. Ornelas, 2 USCMA 96, 6 CMR 96.

P. 98, par. 671. In the fourth subparagraph, delete the second and third sentences and substitute the following:

As to motions granted by the court which do not amount to a finding of not guilty, the convening authority may, if he disagrees, return the record of trial to the court with a statement of his reasons for disagreeing and with instructions that the court reconvene and reconsider its ruling with respect to the matters as to which the convening authority is not in accord with the court (Article 62a). The court will exercise its sound discretion in reconsidering the motion. See U.S. v. Knudson, 4 USCMA 587, 18 CMR 161; U.S. v. Robinson, 20 CMR 816.

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tence which reads "The term 'enlistment' included induction or any other means of entry into service in an armed force." See U.S. v. Jenkins, 7 USCMA 261, 22 CMR 51.

P. 310, par. 164a. At the end of the subparagraph commencing "without being regularly, etc.", add the following:

Desertion in this manner is not, however, a separate substantive offense of desertion, but Article 85a (3) instead merely prescribes a method of proving the offense of desertion prescribed by Article 85a (1). See U.S. v. Johnson, 5 USCMA 297, 17 CMR 297.

P. 311, par. 164a(1). Lines 16-18, delete the words, "and a purpose to return, provided a particular but uncertain event happens in the future, may be considered an intent to remain away permanently."

See U.S. v. Rushlow, 2 USCMA 641, 10 CMR 139.

P. 313, par. 164a. Beginning at line 22 delete the words "or attempts either such act while in a duty status or while on pass, liberty or leave."; in line 24 delete the words "abandons his status of duty, pass, liberty or leave,"; and delete the sentence commencing in line 26 with the words "Similarly, a member, etc." See U.S. v. Johnson, 7 USCMA 488, 22 CMR 278.

P. 313, par. 164a. Line 19, after the words "enlistment or appointment", insert the following:

Return to military control whether voluntary or by apprehension, may be effected by return to any of the

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armed services, whatever may be the service of which the accused is a member. See U.S. v. Coates, 2 USCMA 625, 10 CMR 123.

P. 313, par. 164a. Subparagraph entitled Intent in desertion by absence with intent to remain away permanently, delete first sentence and the portion of the second sentence on line 5, and substitute therefor:

If the condition of absence without proper authority is much prolonged, such fact may be considered together with other facts and circumstances related to the case in inferring an intent to remain absent permanently, unless the accused has offered an explanation of his absence, and such explanation was of such persuasive effect to create a reasonable doubt as to the validity of such inference. A plea of guilty of absence without leave to . . . . See U.S. v. Cothern, 8 USCMA 158, 23 CMR 382; U.S. v. Soccio, 8 USCMA 477, 24 CMR 287; U.S. v. Burgess, 8 USCMA 163, 23 CMR 387.

P. 314, par. 164a. Line I, after the words "can be inferred.", insert the following:

Although there is a difference in the allowable punishment for absences of more or less than sixty days (See Table of Maximum Punishments, paragraph 127c), this provision does not indicate that one or the other of the periods constitutes a "prolonged absence"; any absence, of whatever duration, may be prolonged, depending upon