United States v. Gomes

Latimer, Judge

(concurring in the result) :

I concur in the result.

I would concur outright if it were not for the fact that the Chief Judge’s opinion suggests that the limitations on *242punishment provided for in Article 308, Manual for Courts-Martial, United States Coast Guard, 1949, are inapplicable possibly because the depositions here involved were taken oh oral examination and not by written interrogatories. I do not believe that difference to be of any importance. The depositions were taken after the effective date of the Manual for Court-Martial, United States, 1951, by which prior rules of evidence, which were in conflict with the new provisions, were repealed. I believe it matters not by what method the depositions were taken as an accused does not have a vested right to have a rule of evidence remain unchanged. The elements of the offense were not changed; the maximum punishment imposable was not increased; the evidence was obtained and presented in accordance with the provisions of the 1951 Manual and the same weight was required for conviction. That the Manual did not continue the previous limitation on sentence in effect when depositions are used does not establish that the sentence of dismissal was ex post facto punishment regardless of whether the depositions were taken by oral examination and cross-examination or upon interrogatories and cross-interrogatories.