Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant, then a United States Army sergeant serving in Germany, was convicted by a general court-martial of unpremeditated murder. While serving his sentence at the United States Penitentiary at Lewisburg, Pa., he filed a petition for a writ of habeas corpus and obtained a rule to show cause why it should not be allowed. After hearing, the rule was dismissed and the petition denied. D.C., 115 F.Supp. 317.
The one question presented to us is whether appellant was denied constitutional and military due process in his trial because there were no instructions by the law member in open court to the members of the court-martial defining the crime of unpremeditated murder and its elements, the crime of voluntary manslaughter and its elements and self defense as related to appellant.*fn1
The offense was committed May 1, 1950. The trial was completed and appellant found guilty June 2, 1950. Sentence was pronounced the same day. On August 17, 1950 the appellate authority, a Board of Review in the Office of the Judge Advocate General, affirmed the conviction. The sentence was ordered into execution on August 25, 1950. On December 15, 1952, by order of the Secretary of the Army, the original sentence of twenty years was reduced to seventeen and a half years.
The court-martial proceedings were governed by the Articles of War, as amended, Act of June 4, 1920, ch. 227, subchapter II, 41 Stat. 787-812, as amended by the Act of June 24, 1948, ch. 625, Title II, 62 Stat. 627, and the Manual for Courts-Martial, United States Army 1949, promulgated by Executive Order 10020, December 7, 1948, 13 F.R. 7519-7629. The Uniform Code of Military Justice, 64 Stat. 108, 50 U.S.C.A. § 551 et seq., though enacted May 5, 1950 did not become effective until May 31, 1951. It was on that date also that the 1951 Courts-Martial Manual went into force.*fn2
Under the Articles of War and the 1949 Manual the law member, in addition to functioning as a full member of the court, had other duties. Article 31*fn* said as to these that:
"It shall be the duty of the law member of a general or the president of a special court-martial before a vote is taken to advise the court that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt shall be resolved in the accused's favor and he shall be acquitted; 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 such doubt; that the burden of proof to establish the guilt of the accused is upon the Government." 62 Stat. 631-632.
The 1949 Courts-Martial Manual assigned certain further duties to the law member. These are outlined in paragraph 40 of the Manual which reads:
"40.Law Member. - As law member, his principal duty is to rule upon interlocutory questions (51d) and to advise the court on questions of law and procedure which may arise in discussion in closed session. Such advice may include an explanation as to the elements necessary to establish the offense charged, what lesser offenses, if any, are included in the offense charged, the possible findings the court may make by way of exceptions and substitutions, the maximum punishment for each offense with which accused is charged, and if requested, the proper form in which to state the findings and sentence reached by the court. As a member he has the duties, powers, and privileges of members in general. In accordance with Article 31, it is the duty of the law member before a vote is taken to advise the members in open court concerning the presumption of innocence and the nature and quantum of evidence required to sustain findings of guilty." 13 F.R. 7529.
Article 38 of Articles of War*fn** gave the President authority to prescribe regulations for the procedure, including modes of proof, in courts-martial cases "which regulations shall, insofar as he shall deem practicable, apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the district courts of the United States". It was pursuant to this authority that the President issued Executive Order 10020, December 7, 1948 prescribing the 1949 Courts-Martial Manual. 13 F.R. 7519-7629.
The instructions actually given by the law member in this case were:
"The Court is advised that the accused is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; if there is a reasonable doubt as to the guilt of the accused, the doubt shall be resolved in the accused's favor and he shall be acquitted. 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 such doubt. The burden of proof to establish the guilt of the accused is upon the Government."
The 1951 Courts-Martial Manual eliminated the law member. He was succeeded by a "law officer" who acts in a quasi judicial capacity and takes no part in the deliberation or decision of the court. Among other things, he has the duty of instructing the court "[as] to the elements of each offense charged" 1951 M.C.M. 73(a), and his failure so to do is reversible error. United States v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. 74. This is strongly stressed by appellant as indicative of the proper interpretation of the pertinent language of the 1949 Manual. United States v. Gordon, 1 U.S.C.M.A. 255; 2 C.M.R. 161, is cited in support. The Gordon decision, also under the 1949 Manual, said "[while] the new code is not controlling in this case, it points the direction this court should take when interpreting language which is used in the old code and carried over in the new." That would be fine and we would welcome the opportunity of following the present military ...