26-1051. Voting and rulings
A. Voting by members of a general or special court-martial on the findings and on
the sentence, and by members of a court-martial without a military judge on questions of
challenge, shall be by secret written ballot. The junior member of the court shall count
the votes. The count shall be checked by the president, who shall immediately 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 on all questions of law and all
interlocutory questions arising during the proceedings. Any such ruling made by the
military judge on 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 on any question of law other than a motion for a
finding of not guilty, is final and constitutes the ruling of the court. However, the
military judge or the president of a court-martial without a military judge may change
his ruling at any time during the trial. Unless the ruling is final, if any member
objects, the court shall be cleared and closed and the question decided by a voice vote
as provided in section 26-1052, 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, in the presence of the accused and counsel, shall
instruct the members of the court as to the elements of the offense and charge them:
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.
4. That the burden of proof to establish the guilt of the accused beyond reasonable
doubt is on this state.
D. Subsections A, B and C of this section do 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 proceedings and, if the accused is
convicted, adjudge an appropriate sentence. The military judge of such a court-martial
shall make a general finding and in addition on request shall find the facts
specially. If an opinion or memorandum of decision if filed, it is sufficient if the
findings of fact appear in the opinion or memorandum of decision.
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