lesser gravity. This must follow from the fact that the time and manner of return are in essence immaterial to the offense of absence without leave, these matters going only to the gravity of the offense, and the fact that unauthorized absence is not a continuing offense. (Citing U. S. v. Emerson (No. 77), 1 USCMA 43, 1 CMR 43.) That the charge of desertion in the second trial includes the additional element of intent not charged at the prior trial does not make any difference in view of the provision of par 68d, MCM, 1951, that a trial for absence without leave bars a trial for the same absence charged as desertion and vice versa if the same enlistment is involved in both cases since both offenses involve the same unauthorized absence. By the same unauthorized absence is meant the same offense of unauthorized absence and not an unauthorized absence in each case of precisely the same duration. This follows from the fact that unauthorized absence is not a continuing offense. From the foregoing the board concludes that the law officer erred in denying the motion of the accused to dismiss the charge on the ground of former jeopardy and that this error was materially prejudicial to the substantial rights of the accused. In the circumstances disclosed by this record the convening authority in effect terminated the proceedings in order to start afresh with disciplinary action which he considered more appropriate to his post-trial determination from entries in the service record of the accused. This termination and dismissal was without any fault of the accused and the language of UCMJ, Art 44, interpreted in the light of par 68d, MCM, 1951, and the provisions relating to reconsideration and revision in UCMJ, Art 62 does not include authorization for the action taken by the convening authority in this case. NCM 275, Hayes (1953) 14 CMR 445. IV. INSANITY; MENTAL RESPONSIBILITY § 31.3. Determination of question, generally. At the outset of the trial the accused paced back and forth in the courtroom, mumbling to himself, and attempted to leave the courtroom. The law officer directed the accused to return to the courtroom and take his place at the defense table. Some difficulty was encountered with the accused with the result that it was necessary for a guard to force him into his place at the counsel table. The accused repeatedly stated that he could not understand, that he was sick and wanted to see his people. Prior to entering a plea for the accused, the defense counsel moved that all charges and specifications be dismissed on the ground that the accused was not mentally competent at the time of trial. In rebuttal the prosecution called a medical corps officer, a qualified psychiatrist, who testified that it was his conclusion that the accused was sane at the time of trial and that he could co-operate in his own defense. However, the medical officer testified that the accused was a preschizophrenic and that he was very close to the border line of insanity and may have at times crossed over the border line. At the conclusion of the medical officer's testimony, the law officer denied the motion to dismiss the charges subject to objection by any member of the court. No member of the court objected and the trial proceeded. At no time did the law officer instruct the court on insanity. Held that: the preferable procedure where the issue of an accused's mental capacity to stand trial is raised, is to deal with this issue at the outset, before evidence on the merits is introduced for if the court determines that the accused is mentally incapable of standing trial a needless trial is obviated by adjourning and reporting the court's findings to the convening authority. MCM, 1951, subpar 122a, p 202). (Citing - procedurally, when the defense has presented a motion for a finding of insanity at the time of trial, better practice dictates that the defense be then and there permitted to introduce evidence in support of this motion that the prosecution then be permitted to introduce rebuttal evidence, if any, and, when both sides have completed this presentation, each side be permitted to argue the motion, counsel for the accused having the right to open and conclude argument (U. S. v. Chisolm, 149 F 284). It should be noted, however, that although the defense usually raises the issue of insanity by producing evidence of mental irresponsibility or lack of capacity, it is the duty of the court to call for evidence on this matter whenever there is a reasonable indication that an inquiry is warranted in the interest of justice (MCM, 1951, subpar 122a, p 202). - though not required by UCMJ, Art 51c, it is in the interest of due process that the court, before it is required to pass on the law officer's ruling on a motion for a finding of insanity at the time of trial, be properly instructed on the issues involved. Accordingly, the better procedure is for the law officer, at the time he makes his ruling, to instruct the court on the issue of fact to be determined by them in order that the members of the court may intelligently consider the question and under proper guideposts either object to the law officer's ruling or permit it to become final (U. S. v. Chisolm, 149 F 284). In addition to instructing the court at this time, if the trial thereafter proceeds on the merits the law officer should remind the court, prior to its closing for deliberation on the findings, of the issue of insanity at the time of trial and the court's prerogatives in this regard (MCM, 1951, subpar 122b, p 203). The course to be followed rests in the sound discretion of the law officer and it may be that the court in some instances should be given opportunity to observe further the demeanor and reactions of the accused in order that his conduct of and co-operation in his defense can be informatively evaluated. Whether this latter course is employed depends on the circumstances of the case but, when mental capacity of the accused to stand trial is reasonably raised and no instructions have been given by the law officer on the issue of insanity at the time of trial prior to findings, such instruc tions must be given at the time of closing for findings. (Cf. U. S. v. Burns (No. 847), 2 USCMA 400, 9 CMR 30). - the question in the instant case was initially raised by a motion to dismiss. It is clear that such a motion is procedurally incorrect, for insanity at time of trial is not proper basis for dismissal of charges, but rather is grounds for a motion for appropriate relief (MCM, 1951, pars 66 and 69a, e). The motion should have been for a finding of insanity at the time of trial. - in this case the issue of the accused's sanity at the time of trial was reasonably raised and the failure of the law officer to give appropriate instructions on the issue was error since he failed to provide the court-martial with even the barest fundamental yardstick for their guidance in order that the members thereof might possibly object to his interlocutory ruling or later vote on the question of insanity. (Citing U. S. v. Ornelas (No. 446), 2 USCMA 96, 6 CMR 96; U. S. v. Burns, supra; cf. U. S. v. Trede (No. 1803), 2 USCMA 581, 10 CMR 79.) the omission of a request by the defense counsel for an instruction on insanity, or failure to object to the absence thereof, does not constitute a waiver. (Citing U. S. v. Mundy (No. 1447), 2 USCMA 500, 9 CMR 130, and cases cited therein.) the determination of the board of review that the issue of the accused's sanity was reasonably raised and that instructions thereon should have been given is neither determinative nor decisive as to the accused's insanity (ACM 6728, Hyde, 12 CMR 710). A rehearing is therefore warranted. CM 367012, Lawson (1953) 13 CMR 151. placed made. During the trial, the accused's mental capacity to stand trial was in issue but no motion on behalf of the accused was However, the law officer noted that the issue had been raised his own motion, ruled, subject to objection by any member Court, that the accused did possess sufficient capacity to stand trial. In his instructions the law officer stated: "The sanity accused was also an essential issue. The mental capacity of and, on of the of the by the the accused to stand trial was ruled upon as an interlocutory matter law officer, subject to objection by any member of the court. the court may understand that ruling, it is advised that no may be tried by court-martial unless he possesses sufficient apacity to understand the nature of the proceedings against intelligently to conduct or cooperate in his defense." Com So that person mental him an d plete instructions were given on the question of sanity at the time of the Commission of the offenses but no further instructions were given in respect to the accused's mental competency at the time of trial. Hela that: the mental competency of the accused to stand trial is a question must be submitted to the court for determination under appropriate instructions. which it is clear from the language of UCMJ, Art 51(b), that no distinction is made as to the types of insanity upon which the law officer may rule, when presented as an interlocutory question. While the Manual recognizes the distinction between mental responsibility of the accused at the time of commission of the alleged offenses, and mental competence of the accused to stand trial for such offenses, it makes no distinction as to the manner in which the question of insanity, regardless of how characterized, when placed in issue, should be disposed of. it is true that a determination of the accused's present mental capacity to stand trial does not resolve his guilt or innocence and procedurally the question, whether presented by motion or by final submission to the court-martial, is one which, if determined in favor of the accused, results only in an abatement or continuance of the proceedings. However, in view of the omission in military law of any differentiation between the types of legal insanity which must be disposed of when raised from a procedural standpoint, it must be concluded that Congress and the framers of the Manual for Courts-martial intended that the accused should be given the benefit of the ultimate determination of this issue by the members of the court-martial. (Citing UCMJ, Art 51(b); MCM, 1951, pars 120, 122; U. S. v. Burns (No. 847), 2 USCMA 400, 9 CMR 30; U. S. v. Niolu (No. 1040), 2 USCMA 513, 10 CMR 11; CM 367012, Lawson, 13 CMR 151; Hearings Before Subcommittee of The Committee on Armed Services, House of Representatives, 81st Cong, 1st Sess, on HR 2498, pp 1078–1080.) -in view of the provisions of UCMJ, Art 51(b) and pars 120 and 122, MCM, 1951, as to the interlocutory question of the accused's mental capacity to stand trial, the court must be provided with an appropriate guide in order that it may intelligently consider the question, either at the time it closes to deliberate on the guilt or innocence of the accused, or when considering whether the court-martial deems further inquiry appropriate before proceeding further with the trial. In the instant case the law officer failed to provide the court-martial with even a minimum yardstick for its information and guidance to be utilized by the members of the court as a basis for a possible objection to his interlocutory ruling on the capacity of the accused to stand trial. Likewise, he failed to give any further instructions as to what the court might consider in determining the competency of the accused at the time of trial. Consequently, it can only be concluded that these omissions constituted a failure to advise the court that it was in any way free to consider and resolve the issue of the accused's present sanity. (Citing CM 367012, Lawson, 13 CMR 151.) - the law officer's explanation to the court during the course of his instructions did not provide the court with adequate instructions upon which it might make an independent determination of the accused's present competency to stand trial. The law officer's definition of insanity predicated upon a lack of mental capacity to understand the nature of the proceedings and to participate therein was in fact no more than a definition and can hardly be construed an instruction to the court that the issue of present insanity could be considered by the court in its delibera tions. (Citing U. S. v. Niolu (No. 1040), 2 USCMA 513, 10 CMR 11.) — failure of the law officer to give necessary instructions constituted reversible error even though there was no request for such instructions by the defense counsel and no objection to the omission thereof. (Citing U. S. v. Burns (No. 847), 2 USCMA 400, 9 CMR 30; ACM 6683, Bowman, 10 CMR 732, and cases cited.) ACM 7566, Moore (1954) 14 CMR 658. Proper procedure where question of amnesia at time of trial is raised, see United States v. Lopez-Malave, infra § 35.15. § 31.5. Ruling of law officer or president of special court-martial on question of sanity. Matters formerly in this section are now classified to § 31.3, supra. § 33.1. Generally. § 33. Inquiry or Examination The accused was charged with desertion and absence without proper authority. The defense admitted both periods of absence and defended solely on the ground of insanity. A medical officer testified that when the accused was received at a naval hospital after his second absence, he was unable to talk, but that he was under psychiatric observation and no psychiatric disability was found after a reasonable period of time, and that the accused, at the time under observation, knew right from wrong and could adhere to the right. When cross-examined as to an assumed change of diagnosis, the medical officer stated that a person in the assumed condition would be regarded as legally sane. The accused's wife testified, as did the accused, to various lapses of memory, and several occasions of eccentric and peculiar conduct. The accused was found guilty of the charge of absence without proper authority and guilty of absence without proper authority as a lesser offense of the charge of desertion. Held: Although assertions, behavior, suspicions as to sanity or insanity, and observations may warrant inquiry, these things alone do not necessarily raise the issue. Insanity to constitute a defense, must be absolute. The evidence was insufficient in this case to actually raise the issue of insanity and therefore it was unnecessary for the prosecution to have produced other evidence pertaining to the sanity of the accused. Even assuming that the sanity issue was properly raised the court duly weighed the evidence and arrived at a proper determination. (Citing MCM, 1951, pars 122a and 122b; Winthrop's Military Law and Precedents, 1920 Reprint, p 295.) NCM 219, Hunsinger (1953) 11 CMR 589. Subsequent to a hearing by the board of review, the board pursuant to the authority provided in par 124, MCM, 1951, ordered further inquiry into the mental condition of the accused in the interest of justice. The defense counsel excepted on the grounds that the action of the board of review indicated a reasonable doubt as to the sanity of the accused and that it was, therefore, incumbent on the board to dismiss the charge. Held: The exceptions are overruled. When the |