and circumstances will be unnecessary.

In some cases, it may be necessary only to introduce evidence in aggravation of the offenses. When evidence is to be introduced, the preferable method is by stipulation between TC, DC and the accused. In such a case, the stipulation could be drafted on the basis of evidence admitted at the original hearing. If a stipulation is not agreeable to defense, the evidence may be introduced by calling witnesses, offering depositions, offering former testimony (if the witnesses are unavailable), etc. Since the guilt of the accused is already established, evidence should not be offered at this time which could have no other purpose than to re-establish guilt.

With the charges now published to the court members, the president proceeds to inquire into the personal data concerning the accused, and previous convictions. From this point, the regular trial guide should be followed through the president's request for proposed instructions on the sentence. The instructions on the sentence are now given, and, due to the fact that this is a rehearing, the instructions will reflect the previously discussed rules concerning the maximum imposable sentence at a rehearing. If the computed maximum sentence includes a bad conduct discharge, and the other possible types of punishment are less than a special court-martial could ordinarily award, the president should give the following instruction:

PRES: () THE COURT IS FURTHER ADVISED THAT IN LIEU OF ADJUDGING A BAD CONDUCT DISCHARGE, AND PROVIDED, IN ITS JUDGMENT, THE COURT CONSIDERS SUCH PUNISHMENT NOT IN EXCESS OF OR MORE SEVERE THAN A BAD CONDUCT DISCHARGE, THE COURT MAY ADJUDGE PUNISHMENT NOT TO EXCEED CONFINEMENT AT HARD LABOR FOR SIX MONTHS, FORFEITURE OF TWO-THIRDS PAY PER MONTH FOR SIX MONTHS, AND REDUCTION TO THE LOWEST ENLISTED PAY GRADE.

Note: Should the court question the basis for determining the maximum punishment imposable, the President may instruct the court as follows:

PRES: () I HAVE CORRECTLY INSTRUCTED YOU CONCERNING THE MAXIMUM PUNISHMENT IN THIS CASE, TAKING INTO CONSIDERATION ALL OF THE FACTORS WHICH BEAR UPON IT. YOUR CONCERN IS WITH THE MAXIMUM IMPOSABLE SENTENCE AND NOT THE BASIS FOR THE LIMITATION IT IMPOSES UPON YOU. THE SENTENCE YOU ADJUDGE MUST NOT EXCEED THE LIMITS I HAVE STATED.

One of the major problems to be overcome in conducting a correct rehearing is how to inform the president or the law officer of the sentence limitations, assuming there are any, so that the proper instructions on the maximum sentence can be given without giving the basis of the limitation. There are at least two good approaches. Probably the easier way is simply for the convening authority to include on his referral endorsement on the charge sheet a statement of the maximum sentence the court may award. Then, just before the instructions on the sentence the trial counsel would read the convening authority's instruction. This method, however, fails to allow for member's questions concerning a limited sentence, and, if the president is not informed that the proceeding is a rehearing, there may be confusion.

The president may be told that the proceeding is a rehearing and the basis for the sentence limitation. This is not error; only the members may not be informed as to the basis for the sentence limitation. The second method of providing to the president the necessary information for a proper rehearing sentence instruction is by way of a hearing outside the presence of the members of the court. The trial counsel should, prior to the president's instruction on the sentence, move for a hearing outside the presence of the other members, and, after the members have withdrawn from the courtroom, inform the president that the trial is a rehearing and advise him that his instructions on the sentence have to reflect the appropriate limitations. The use of this method provides the president with the knowledge necessary to instruct properly on the sentence and to instruct properly on any questions by the members as to why the sentence is limited.

As can be readily seen from the foregoing, a rehearing requires of those who are charged with its proper conduct a good working knowledge and understanding of the law. It might even be said that extra care should be taken to see that errors are not committed in a rehearing, because, in one sense, an error in a rehearing is more serious than an error in an original trial, not simply because of additional time and expense already being used, but because the accused ought not to be subjected unnecessarily to repeated trials.

SUA SPONTE INSTRUCTIONS

(Continued from page 36)

to instruct the members of the court on his own motion in this area. However, the Court of Military Appeals has not indulged in the presumption that the members of a special courtmartial have sufficient legal knowledge to decide mixed questions of fact and law.60 The Court of Military Appeals has consistently held that the president of a special court-martial must instruct the members of the law in other areas, as has been discussed above.

A resolution of this problem will have to come from the Court of Military Appeals in the future. The author has only mentioned this possible conflict so that a president of a special court-martial will be aware of the problem should it arise in a case over which he is presiding.

CONCLUSION

Instructions are the means by which the president informs the other members of the law applicable to the facts presented at trial. They are the instruments by which he assures a fair trial for the accused. There is no presumption

60. United States v. Pinkston, supra note 3.

that the members have a general knowledge of the law; it must be intelligently presented to them so that the court may make an enlightened judgment. It is for this reason that the president must act sua sponte to assure that the triers of fact have the necessary legal guidelines to arrive at a proper decision as to the guilt or innocence of an accused. This is also why the president must be very sure that he has indentified the legal issues presented by the evidence, that his instructions are tailored to these facts and that he has informed the court how they must apply the law as he has set it forth in his instructions.

To further assure the fairness of the trial proceedings the president should, when the circumstances arise, inform the court of the limited purpose for which certain evidence is admitted, or advise them to disregard any improper evidence, argument or incident which occurs during the trial. By careful attention to the evidence presented in light of the offenses charged and by judicial use of his power to instruct, the president can best insure the enlightened atmosphere necessary to a fair and just trial for an accused, which is the intended end of our courtmartial system.

COLLISION INVESTIGATIONS

(Continued from page 50)

tions taken than that given by persons on the other ship. Strange as it may seem, some courts have frowned upon one ship soliciting testimony from the crew of the other ship.11 As to admissions against interest, the court will only accept them from the master of the vessel, as he is the only authorized person who can adversely bind the shipowner.12

If the admiralty judge still finds himself in a quandary as to whom to believe he can and often will accept the version of the accident as given by those aboard a well-manned and disciplined ship,13 rather than those aboard a ship found to

11. Palmer v. Merchants' & Miners' Transportation Co., supra note 6.

12. The Potomac, 75 U.S. 590 (1869).

13. The Genevieve, 96 Fed. 859 (N.D.N.Y. 1899) aff'd mem. 106 Fed. 989 (2d Cir. 1901).

be slack in discipline.14 Of course, if a witness is caught in any contradictions, the judge can very well view his testimony with suspicion.15

Lastly, it should be remembered that while an admiralty judge is not always an "old salt", he has had sufficient human experience to know that there is usually some rational explanation for human conduct, even if it is carelessness. Thus, the admiralty judge is very reluctant to believe that a collision was deliberately brought about. The Supreme Court has observed that the claim of one ship that the other suddenly crossed her bow is probably false and at most an excuse for negligent navigation. Indeed, such a yarn has been rejected by an appellate court in reversing a case when the only uncontradicted evidence in the record was that the other ship crossed the bow.16

14. The Metamora, 144 Fed. 936 (1st Cir. 1906).
15. The Teaser, 217 Fed. 920 (D.C. Mass. 1913).
16. The Dauntless, 129 Fed. 715 (9th Cir. 1904).

U.S. GOVERNMENT PRINTING OFFICE:1966

The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL WILFRED A. HEARN, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

COMMANDER GARDINER M. HAIGHT, USN Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, D.C. 20402 Price 25 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing.

NONTEMPORARY STORAGE OF HOUSEHOLD GOODS-Removal at Government expense prior to issuance on new PCS orders

● A recent decision of the Comptroller General involved the question whether the Joint Travel Regulations might be amended to authorize the removal of household goods at Government expense from nontemporary storage prior to the issuance of new permanent change of station orders, when such removal is for delivery to the same local area from which the household goods were placed in storage. In support of the proposed authorization it was pointed out that the omission from the current regulations works a hardship on members assigned overseas with concurrent travel of dependents provided. It was further indicated that placement of household goods into nontemporary storage is based on circumstances existing at that time; that if, after such action, a new set of circumstances develops requiring the dependents to return to or remain at or in the vicinity of the old station, they can obtain their household goods only by paying for the cost of removal, since current regulations provide only for removal from nontemporary storage incident to the next permanent change of station orders.

The Comptroller answered the question in the affirmative stipulating, however, that, generally, any other movement or restorage of the effects at Government expense would not be proper prior to the issuance of further permanent change of station orders. The authorized change has been incorporated in paragraph M8101.9 of JTR (Comp. Gen. Dec. B-142462 of June 9, 1966).

DEATH GRATUITY AND BURIAL EXPENSE For Reservist directed to perform inactive duty training

● A question was presented concerning the propriety of payment of the death gratuity and burial expenses in the case of a Reservist who had been directed to perform inactive duty training. The Reservist was to report to a Reserve drill with his unit at a Reserve Center at 1915 hours, where he was scheduled to instruct a class at the drill. He arrived at the Center approximately one hour before his instructional duties were to begin, for the purpose of preparing for a future drill which he was also to conduct. This was with the knowledge and consent of his commanding officer, and the preparation required the use of materials available only at the Center. The Reservist, after spending about 15 minutes at the Center, walked across the street to a dairy bar. While recrossing the street a short time later, in returning to the Center, he was struck and killed by an automobile.

Authority is provided in 10 U.S.C. 1475 for the payment of a death gratuity when the member involved dies from injuries received "while traveling directly to . . . inactive duty training." The Comptroller observed that the Reservist was free to leave the Center if he elected to do so and therefore it could not be concluded as a matter of law that he was not "traveling directly" to his inactive duty training station when he was recrossing the street in returning to the Center. It was concluded that the death gratuity was payable.

(Continued on page 78)

You

OU GENTLEMEN HERE today are studying the role of command and staff systems in the planning and operations of military endeavor. With this in mind, I plan to cover briefly three areas. The first part of my presentation will endeavor to show how the evolution of military law has historically followed the evolution of command and staff developments in military organizations, especially since the early 17th century in Europe. Then, I will outline the American judicial system, civilian and military, and lastly I plan to discuss in general the meaning of military justice and why we have courtsmartial.

We can start by dividing military legal history, as well as military history in general, into three periods. The first period extends from the advent of written history to the fall of the Roman Empire, with its sophisticated legal system and splendid military organization. The second period embraces generally the Middle or Dark Ages, from about the year 846 A.D. to

Captain DeVico is currently the Commanding Officer, U.S. Naval Justice School, Newport, Rhode Island. During World War II, Captain DeVico was an instructor at several naval air stations, Personnel Officer at a primary naval air base and later Executive Officer of the Naval Flight Preparatory School at Williams College, Massachusetts. At sea, he served in destroyers, participating in combating operations in the Mediterranean.

Since his appointment as a Navy law specialist in 1946, Captain DeVico has had assignments at Shanghai, China, at the First Naval District, with the Sixth Fleet, and with the Atlantic Submarine Force. He has served as Director, Administrative Law Division in the Office of the Judge Advocate General, and prior to receiving his orders as Commanding Officer, U.S. Naval Justice School, Captain DeVico served as Assistant Judge Advocate General for Personnel, Reserve and Planning.

Captain DeVico holds an LL.B. degree from Boston College and an M.A. degree from Boston University. He has been admitted to practice before the U.S. Supreme Court, the Supreme Court of the Commonwealth of Massachusetts, the Federal District Court for Boston, Massachusetts, and the U.S. Court of Military Appeals.

Editor's note: This article is adapted from a lecture presented by Captain DeVico at the Naval War College on 1 March 1966 and is printed here with permission of the author and the Naval War College.

1500 A.D., during which time military thought— legal and otherwise can be said to have been generally retrogressive rather than progressive. Today we are in the third period, which began in the early 1600s, at about the time of the Swedish general Gustavus Adolphus, commander of the most effective military organization in Europe at that time. Gustavus is reputed to have been responsible for many staff innovations one of which was to add judge advocates on a permanent basis. He also set up a system of military tribunals that provided for a general court and lower courts strikingly similar to our present general courts-martial and special courts-martial. Undoubtedly, history best remembers Gustavus for his contributions in developing the army supply system, specifically his improvements in staff functions in the logistics area. However, it is also abundantly clear that Gustavus had a special appreciation for the traditional role of military law. Dating from at least the time of the Roman Legions, the single and simple purpose of military law has been to render more effective the commander's fighting force by prescribing and enforcing standards of behavior for the members of the military force.

As I have indicated, military law necessarily evolved in the context of the development of command and staff relationships. Especially during the 17th century, the law, although a command responsibility, became more and more a staff function. Staff functions in general, during that period, were specializing and differentiating in order to meet the new social and technological conditions that were influencing military endeavor. To cite an example, the quartermaster was becoming a specialized member of the commander's staff. Part of the quartermaster's function in those days was foraging ahead of the main body of troops, searching for food and fodder. This role made him a natural