(a) Voting by members of a general or special court-martial upon questions of challenge, on the findings, and on the sentence shall be by secret written ballot. The junior member of the court shall in each case 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.

(b) The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court; provided the military judge or the president of a court-martial without a military judge may change any such ruling at any time during the trial. Unless such ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 27-194 beginning with the junior in rank.

(c) Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense and charge the court: (1) That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt; (2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted; (3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt, and (4) that the burden of proof of establishing the guilt of the accused beyond reasonable doubt is upon the state.

(d) Subsections (a), (b) and (c) of this section shall not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the procedures and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall, in addition to such finding, on request, find the facts specially. If an opinion or memorandum of decision is filed, it shall be sufficient if the findings of fact appear therein.

(1967, P.A. 717, S. 53; P.A. 77-295, S. 12.)

History: P.A. 77-295 changed Subsec. (b) as follows: Deleted the exception for challenges as it applied to the “military judge”, substituted for “law officer”, provided for the military judge and the president of a court-martial without a military judge to rule on all questions of law as well as interlocutory questions, provided that the rulings of the military judge on questions of law and interlocutory questions (except for the factual issue of mental responsibility of the accused) are final, provided that the rulings of a president of a court-martial without a military judge on questions of law (other than a motion for a finding of not guilty) are final, substituted in Subsec. (c) “military judge or the president of a court-martial without a military judge” for “law officer of a general court-martial and the president of a special court-martial” and added new Subsec. (d) providing that Subsecs. (a), (b) and (c) do not apply to court-martial composed of military judge only (Prior to the amendment the section provided for the rulings by both the military judge and president of a court-martial without a military judge to be final only with respect to interlocutory questions other than on the motion for a finding of not guilty or the question of the accused's sanity).