(concurring in part and dissenting in part) :
I am at a loss to understand how the president of the court-martial reopened the court with a statement that he believed an abstention was unintentional when he could have determined this question before the court was reopened. Since the Manual for Courts-Martial, United States, 1969, provides that voting is obligatory,1 I concur in the decision that there could not have been a formal announcement of the findings until after all members had voted.
Paragraph 74d(3) of the Manual2 provides for reballoting. My understanding of this paragraph is that it applies only after every member has balloted and before the finding is formally announced in open session. This procedure is in contemplation of a changed vote on reballoting instead of a compliance with the requirement that every member vote. My view is that this paragraph does not apply in cases where the first ballot was incomplete. Accordingly, trial counsel acted erroneously when he gave an instruction on reballoting. An “oral .vote” on an erroneous and unnecessary procedure is not prejudicial to the accused.
I would affirm the decision of the Court of Military Review.
“(2) Voting. Voting shall be by secret written ballot (Art. 51 (a)) and is obligatory. The order in which the several charges and specifications are to be voted upon will ordinarily be determined by the president, subject to Hie objection of a majority of the court, except that all the specifications under a charge shall precede that charge. The members normally vote upon a specification or charge by marking on their ballots: ‘Guilty;’ ‘Not guilty;’ or ‘Not guilty, but guilty of -.’ The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court (Art. 51(a)).” Paragraph 74d(2), Manual for Courts-Martial, United States, 1969.
“. . . The court may also reconsider any finding of guilty on its own motion at any time before it has first announced the sentence in the case. Any member of a court may propose that a finding be reconsidered. If a re-ballot is proposed by any member as to a finding of guilty of an offense for which the death penalty is mandatory by law, an additional ballot shall be taken immediately. Otherwise, the question shall be determined on secret written ballot, and a reballot shall be taken on a prior not guilty finding when a majority of the members vote in favor thereof or on a prior guilty finding if more than one-third of the members favor reballoting.”