(dissenting):
In United States v. Mosely,1 we reviewed the special emphasis military law places upon the individualization of sentence, and concluded that it was improper to adjudge a more severe sentence than might otherwise be imposed because of a purpose to deter others in the general population from committing the same offense, notwithstanding such practice is commonplace in the civilian courts. The decision has been strongly criticized in some commentaries and in decisions by Courts of Military Review, but I am still persuaded that it is justified, indeed required, by the authorities upon which we relied, and should not be overruled.
A point of differentiation between this case and Mosely posited in the separate opinions comprising the majority prompts me to further comment. The Chief Judge suggests, in footnote 2 of his opinion, that Mosely is still viable as “a condemnation of overzealous argument by a prosecuting attorney.” Judge Perry stresses that Mosely dealt with a prosecutor’s deterrence argument; the stress reasonably implies that he too may regard Mosely as having continued precedential value as a prohibition of argument by trial counsel for a sentence more severe than that otherwise just for the accused in order to deter others who might be inclined to commit the offense of which the accused was convicted. If consideration of deterrence is proper in fixing the sentence, but argument for such consideration is not, what about an instruction on deterrence by the trial judge to the court members; is such instruction allowable or forbidden? See paragraph 76 b, Manual for Courts-Martial, United States, 1969 (Revised edition).
The logic of the propounded distinction escapes me. If the court members or the trial judge, as the case may be, can properly take into account the desire, or hope, to deter others, and, on the basis thereof, impose a more severe sentence than would be imposed without that circumstance, then why should trial counsel not be allowed to remind them they have the right to consider deterrence and to ask that they do so in determining a sentence for the accused? To me, the two situations—argument by trial counsel and the expectation by the sentencing authority that other persons will be deterred if the accused is subjected to a more severe sentence than otherwise justified by the sentence information—are conceptually inseparable. More importantly, both violate the same rules for sentencing prescribed by the President.
*188Article 36(a), Uniform Code of Military Justice, 10 U.S.C. § 836(a), confers authority upon the President to prescribe “procedure, including modes of proof, in cases before courts-martial.” As adjudgment of sentence is an indispensable part of trial by court-martial,2 the rules of sentence procedure provided by the President have the force of law. Consequently, what may be generally allowable in the federal civilian courts cannot be applied in a court-martial if contrary to a prescribed military rule.3
The military rules are prescribed in the Manual for Courts-Martial, United States, 1969 (Revised edition). As I read them, they mandate that every sentence factor that might militate against the accused must be a matter of evidence properly before the court-martial.
The first rule on sentencing is that “the prosecution and defense may present appropriate matter to aid the court in determining the kind and amount of punishment to be imposed.” Id. at paragraph 75a.
Depending upon whether the accused has or has not entered a plea of guilty and whether there is a service regulation on the subject, trial counsel can present only four types of evidence as part of the Government’s direct case on sentencing. In all cases, trial counsel must first read the data relating to the accused that appears on the front page of the charge sheet and, secondly, introduce evidence of any previous conviction. Id. at paragraph 75b (1), (2). Use of the third and fourth categories of evidence depends upon specified conditions and rests within the discretion of the Government. If the accused has entered a plea of guilty and “available and admissible evidence as to any aggravating circumstances was not introduced before findings,” trial counsel may introduce “that evidence” in the sentence proceedings. Id. at paragraph 75b (3). Finally, if allowed by service regulation and trial is by a court constituted with a military judge, “trial counsel may” introduce “personnel records of the accused or summaries thereof,” which comply with the rules of evidence. Id. at paragraph 75 d.
With the exception of an unsworn statement by the accused and certain writings, matter in mitigation or extenuation presented by the defense must also satisfy the rules of evidence. The rules may be relaxed by the trial judge as to “affidavits, certificates' of military and civil officers, and other writings of similar apparent authenticity and reliability.” Id. at paragraph 75c(1).
Under the Manual, the general trial rule for argument by counsel is that no counsel may argue “any matter of fact as to which there has been no evidence.” Id. at paragraph 72b. In my opinion, that rule applies equally to argument on sentence. The Manual further requires that, at a trial in a court-martial with members, the trial judge give “appropriate instructions on the punishment.” Id. at paragraph 76b (1). The instructions “should be tailored to fit the facts and circumstance of the individual case.” Id. Delineating the basis for sentence determination, the Manual observes that the court-martial shall act on “all the facts and circumstances involved in the case, regardless of the stage of the trial at which they were established”; it explicitly identifies the facts and circumstances mentioned in the delineation as the “evidence” in the case. Id. at paragraph 76a (2).
*189Although the majority’s recent holding in United States v. Williams, 3 M.J. 155 (C.M.A.1977), which prohibits judicial notice of a regulation alleged in a specification, may have cast doubt on the matter, I am willing to adhere to the early rule that a court-martial may be presumed to have taken notice of facts of common knowledge in the community. United States v. Jones, 2 U.S.C.M.A. 80, 87, 6 C.M.R. 80, 87 (1952); see also United States v. McCrary, 1 U.S.C.M.A. 1, 1 C.M.R. 1 (1951). I do not believe, however, that even this rule allows a court member to take notice that others may be deterred from committing the same offense as the accused if the punishment imposed upon him is increased beyond what would otherwise be adjudged on the basis of the evidence before the court. In my judgment, deterrence of others is an emotional expectation or a hoped-for result, but it is not an empirical fact capable of being judicially noticed. In any event, recourse to the concept to increase the sentence beyond what would otherwise have been adjudged on the basis of the evidence impresses me as a violation of the President’s rules for sentencing.
Early in its history, this Court condemned the intrusion into the sentence proceedings of service policies calculated to produce a more severe sentence than might otherwise have been imposed on the basis of the evidence before the court. United States v. Davis, 8 U.S.C.M.A. 425, 24 C.M.R. 235 (1957). The rationale of those cases finds expression in the current Manual’s prohibition of reference by trial counsel to “any policy directive relative to punishment.” Paragraph 75f, Manual, supra. It seems to me that to increase an accused’s punishment out of a desire to have that sentence act as a possible deterrent to prevent others from engaging in similar conduct reflects a policy basis of aggravation of punishment so similar to that excluded by the Manual as to be condemned by our earlier cases. Scrutinizing the record of the present case, I cannot conclude that the error was purged of its adverse effects. I would, therefore, reverse the decision of the Court of Military Review as to the sentence.
. 24 U.S.C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976).
. United States v. Allen, 8 U.S.C.M.A. 504, 507, 25 C.M.R. 8, 11 (1957).
. Of course there are exceptions, such as a rule contrary to, or inconsistent with, the United States Constitution or a provision of the Uniform Code of Military Justice. See United States v. Ware, 24 U.S.C.M.A. 102, 104, 51 C.M.R. 275, 277, 1 M.J. 282, 284 (1976). Some commentary suggests other limitations may inhere in the provision of Article 36(a), UCMJ, that the rules prescribed by the President “shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” See Fidell, Judicial Review of Presidential Rulemaking Under Article 36: The Sleeping Giant Stirs, 4 Mil.L.Rptr. 6049, 6054 (Oct.-Dec. 1976). I believe no exception or limitation exists as to the rules of the Manual for Courts-Martial, United States, 1969 (Revised edition), on sentencing discussed in the text.