Opinion of the Court
Robert E. Quinn, Chief Judge:
The accused was convicted on September 1, 1951, by general court-martial in Korea of endangering the safety of United Nations Troops in the presence of the enemy by intentionally cutting incorrect artillery charges and setting low elevation on an artillery piece about to be fired. He was sentenced to dishonorable discharge, total forfeiture of pay, and confinement for thirty years. On September 2, 1951, the president of the court, apparently after conferring with the other court members, accused's battery commander, and the pretrial investigating officer, addressed a memorandum to the chief of staff of the convening authority stating inter alia, that "Although Pfc Niolu has been examined by one psychiatrist, and found sane, it is the opinion of the court, Capt. Rob't S. Reid, his B. C. [battery commander] and Capt. James A. Murphy, Investigating Officer that Pfc Niolu is not mentally sound." It is noteworthy that, at the trial, no issue of sanity was raised or argued and no evidence bearing on mental incapacity was introduced. The finding of sanity mentioned in the memorandum above was made during the pretrial investigation.
The convening authority, after receipt of the memorandum, took the following action:
. it appears that the court, after announcement of its findings and sentence, desired to inquire into the . sanity of the accused. Such action is repugnant to the announced findings and thereby materially prejudicial to the substantial rights of the accused. For this reason, the findings and sentence are disapproved and a rehearing is directed before a general court-martial to be hereafter designated."
Thereafter, the accused was again tried by general court-martial for the same offenses. A plea of double jeopardy, based on the argument that the memorandum, supra, amounted to an acquittal at the first trial, was made and rejected. Evidence was presented on the issue of insanity. The accused was found guilty and was sentenced to dishonorable discharge, total forfeiture of pay, and confinement for twenty-five years. The convening authority approved and the Army board of review affirmed but reduced the confinement to ten years. We granted accused's petition for review, limited to the issues of double jeopardy, the legality of á conference between the law officer and the court outside the presence of accused and his counsel, and the legal correctness of the law officer's instructions.
We turn first to the double jeopardy issue since, if the defense contentions as to this question are to be sustained, the second trial must be held a nullity. Defense argues that the memorandum sent to the convening authority by the president of the court indicated that all the members of the court entertained at least a reasonable doubt as to the sanity of the accused and that this required a finding of not guilty. Reliance is placed on paragraph 122a of the Manual for Courts-Martial, United States, 1951, which states that:
"If . a reasonable doubt as to the mental responsibility of the accused at the time of the offense (120b) remains, the court must find the accused not guilty of that offense . . . ."
and paragraph 124, which states that:
"After consideration of the record as a whole, if it appears to the convening authority or higher authority that a reasonable doubt exists as to the sanity of the accused, he should disapprove any findings of guilty of the charges and specifications affected by such doubt. . . ."
Arguing that the opinion of the court members amounted in law to an acquittal, defense concludes that the accused could not again be tried for the same offense or, in the alternative, that the convening authority had no power to order a rehearing but should have disapproved the findings and sentence resulting from the first trial.
If any evidence indicating insanity had been introduced at the first trial, or if there was any indication in the record or in subsequent writings by the court members that this court had, at the time of the first trial findings, a reasonable doubt as to the sanity of the accused, then there would be considerable merit in the defense contentions. See United States v. Chance, 67 BR 125; United States v. Carlis, 1 CMR (AF) 203. However, it appears from the record that the court members entertained at the time of their findings, no doubt as to the accused's' sanity. The information on this subject upon which they relied apparently came to them after the trial. The convening authority was not, therefore, confronted with a situation where a court found an accused guilty despite doubts as to sanity (Cf. United States v. Chance, supra) but a situation where legal and valid findings of guilt had been entered and, subsequently, information indicating doubt as to sanity was brought'to his attention. That the information was adduced by the court which tried the accused is not material — it is no different from the situation where other responsible persons, not connected with the actual trial, present information raising the issue of sanity after trial. Under such circumstances, the convening authority acted quite properly and in the best interests of the accused in setting aside the findings and sentence and ordering a rehearing at which the issue of sanity could be legally and properly adjudicated. See Manual for Courts-Martial, United States, 1951, paragraph 124, supra. It is difficult to see how this procedure could in any way operate to the detriment of the accused. The convening authority resolved the doubt presented by the psychiatrist's finding that the accused was sane and the court members' opinion that the accused was insane by giving the accused an opportunity to establish his mental incapacity in another trial. We note again, however, that our conclusion on this issue is predicated upon a finding that the memorandum of the president of the first court-martial was not based upon information obtained at the trial and did not purport to be an impeachment of the court's findings at that trial. Had the memorandum been prepared at the conclusion of the trial so that it could reasonably be said that the court entered findings of guilty while entertaining a reasonable doubt as to the accused's sanity, then we would be confronted with a much more difficult problem.
'We turn next to a consideration of the instructions given by the law officer. It is apparent from the foregoing discussion that one of the principal issues at the second trial related to the sanity of the accused. Indeed, when the prosecution raised a question as to the necessity of introducing evidence concerning the accused's sanity, the law officer ruled "that the element of sanity or insanity of the accused has been raised and the trial counsel, as a matter of law, will introduce evidence as to the sanity of the accused." The evidence produced as to sanity was conflicting. After both sides had rested, but prior to argument, the law officer instructed the court as follows:
. . There has been certain evidence as to the sanity or insanity of the accused, and in Manual for Courts-Martial, page 203, there is a purview. In effect it says:
" 'If the court finds the accused not mentally resosible [sic] for his acts it will forthwith enter findings of not guilty as to the proper charges and specifications. If it finds the accused mentally responsible for his acts, but at the time of trial lacking requisite mental capacity, it will record such findings.'
"In which event, the convening authority might appoint a board of officers to go into the sanity or insanity of the accused. Those witnesses would be made to testify at that time. . . [ft. 45-46]
After argument, in which the evidence bearing on insanity was discussed at some length by both prosecution and defense, the law officer instructed the court on the elements of the offense charged. Nowhere in his instructions did he discuss the law relative to sanity. The sole reference to that issue is contained in the earlier remarks of the law officer, quoted supra.
Our previous decisions impel a finding that, where insanity is fairly raised as an issue in a case, the law officer is required to instruct the court on the law relative to this affirmative defense. United States v. Ginn (No. 263), 4 CMR 45, decided July 10, 1952. We cannot say that the law officer here fulfilled his responsibility. He gave to the court no legal standard against which to measure the proof of insanity. This omission was not cured by the law officer's reference to the Manual discussion of the subject. United States v. Gilbertson (No. 318), 4 CMR 57, decided July 22, 1952.
Since the inadequacy of the law officer's instructions requires a rehearing, it is unnecessary to discuss the issue relating to the conference held between the law officer and the court outside the presence of the accused and his counsel. The decision of the board of review is reversed and a rehearing is ordered.
Judge Brosman concurs.