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A MANUAL
COURTS-MARTIAL,
COURTS OF INQUIRY, and
RETIRING BOARDS,
AND OF OTHER
Procedure under Military Law.
Revised in the Judge-Advocate General's Office, and published
by authority of the Secretary of War,
USE IN THE ARMY OF THE UNITED STATES.
REVISED EDmoisr, lOOl.
WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1902.
/Jo/
DOCUMENTI
DEPT.
War Department,
Document No. llfi.
Office of the Judge-Advocate General.
ABBREVIATIONS.
A. R. — United States Army Regulations of 190L
A. W. — Articles of War.
R. S.— Revised Statutes.
(2)
War Department,
Washington, March 16, 1901.
The Manual for Courts-Martial, Courts of Inquiry,
and Retiring Boards, and of other Procedure under
Military Law, prepared by direction of the Secretary
of War for use in the Army of the United States, is
approved, and will be published for the information
and guidance of all concerned.
Elihu Root,
Secretary of War.
(3)
934159
Digitized by the Internet Arcinive
in 2007 with funding from
IVIicrosoft Corporation
http://www.archive.org/details/courtsmartialmanOOunitrich
A MANUAL FOR COURTS-MARTIAL, COURTS OF
L^QUIRY, Am RETIRING J^RDS, AND
OF OTHER PROCEDURE UNDER
MILITARY LAW., .
INTRODUCTIONS f I ] ' V ' l ['l
MILITARY JURISDICTION.
Sec. I. Military Jurisdiction is of four kinds :
1. Military Law; which is the legal system that reg-
ulates the government of the military establishment.
It is a branch of the municipal law, and in the United
States derives its existence from special constitutional
grants of power.
2. The Law of Hostile Occupation (Military Govern-
ment) ; that is, military poWer exercised by a belliger-
ent by virtue of his occupation of an enemy's territory,
over such territory and its inhabitants. This belongs
to the Law of War and therefore to the Law of Nations.
When a conquered territory is ceded to the conqueror,
military government continues until civil goverament
is established by the new sovereign.
3. Martial Law at Home (or, as a domestic fact) ; by
which is meant, military power exercised in time of
war, insurrection, or rebellion, in parts of the country
retaining their allegiance, and over persons and things
not ordinarily subjected to it.
4. Martial Law applied to the Army ; that is, mili-
tary power extending in time of war, insurrection, or
rebellion over persons in the military service, as to obli-
gations arising out of such emergency and not falling
within the domain of military law, nor otherwise regu-
lated by law.
(5)
6 ARREST AND CONFINEMENT.
The last two divisions are applications of the doctrine
of necessity to a condition of war. They spring from
the right of national self-preservation.
Sec. II. The Source op Military Jurisdiction is
the Constitution ; the specific provisions relating to it
being found in the powers granted to Congress, in the
authority vested in the President, and in a provision of
the Fifth Amendment.
' 2. Military Law is derived from both Written and
JJnicritten SonvGes.
The Written Sources are the Articles of War, adopted
as a part of the Revised Statutes of the United States
in 1874 and since amended in some particulars; other
statutory enactments relating to the military service ;
the Army Regulations ; and general and special orders,
and decisions promulgated by the War Dei^artment and
by department, post, and other commanders.
The Umvritten Source is the "custom of war," con-
sisting of the customs of the service both in peace and
in war.
Sec. III. Military Tribunals are of three kinds, viz :
1. Courts-Martial (including summary courts), for
the trial of offenders against military law.
2. Courts of Inquiry, for examining transactions of,
or accusations or imputations against, officers or sol-
diers.
3. Military Commissions, for the trial of offenders
against the laws of war and under martial law founded
in necessity.
ARREST AND CO:N^nNEMENT BEFORE TRIAL. i
Sec. I. Arrest of Officers. — "Officers charged with
crime shall be arrested and confined in their barracks,
quarters, or tents, and deprived of their swords by the
commanding officer."-^
1 Omission of arrest does not affect the jurisdiction of a court.
a65thA. W.
ARREST AND CONFINEMENT. 7
2. "Commanding officers only have power to place
officers in arrest, except as provided in the 24th Article
of War. An arrest may be ordered by the command-
ing officer, in person or through his stafif officer, orally
or in writing."*
B. "An officer arrested will repair at once to his tent
or quarters and there remain until more extended
limits have been granted by the commanding officer,
on written application. Close confinement will not be
enforced except in cases of a serious nature. " ^
4. "An officer in arrest will not wear a sword nor
visit officially his commanding or other superior officer,
unless directed to do so. His applications and requests
of every nature will be made in writing. "^
5. "Officers will not be placed in arrest for light
offenses. For these the censure of the commanding
officer will generally answer the purpose of discipline.
Whenever a commanding officer places an officer in
aiTest and releases him without preferring charges, he
will make a written report of his action to the depart-
ment commander, stating the cause. The department
commander, if he thinks the occasion requires, will call
on the officer arrested for any explanation he may desire
to make, and take such other action as he may think
necessary, forwarding the papers to the Adjutant Gen-
eral of the Army for file with the officer's record, or for
further action. " ^
6. "A medical officer, charged with the commission
of an offense, need not be placed in arrest until the
court martial for his trial convenes if the service would
be inconvenienced thereby, unless the charge is of a
flagrant character."^
7. ' ' When an officer is put in arrest for the purpose
of trial, except at remote military posts or stations, the
officer by whose order he is arrested shall see that a
copy of the charges on which he is to be tried is served
' Par. 908, A. R. »W., 1002. 6 Id., 1001.
« Id., 999. ■• Id., 1000.
8 ARREST AND CONFINEMENT.
upon him within eight days after his arrest, and that he
is brought to trial within ten days thereafter, unless the
necessities of the seryice i^revent such trial ; and then
he shall be brought to trial within thirty days after the
expiration of said ten days. If a copy of the charges be
not served, or the' arrested officer be not brought to
trial, as herein required, the arrest shall cease. But
officers released from arrest, under the provisions of this
article, may be tried, whenever the exigencies of the
service shall permit, within twelve months after such
release from arrest."^
Sec. II. Arrest and Confinement of Soldiers.
1. Noncommissioned officers against whom charges
may be preferred for trial will be placed in arrest in
their barracks or quarters. They will not be confined
in the guardhouse in company with privates, except in
aggravated cases or where escape is feared.-
2. Noncommissioned officers in arrest will not be re-
quired to perform any duty in which they may be called
upon to exercise command. Noncommissioned officers
in confinement will not be sent out to work with prison-
ers under sentence.
3. Privates against whom charges may be preferred
for trial by summary court will not be confined in the
guardhouse, but will be placed in arrest in quarters,
before and during trial and while awaiting sentence,
except when in particular cases restraint may be
necessary. 3
4. Privates against whom charges may be preferred
for trial by general court-martial will be confined in the
guardhouse before and during trial. While awaiting
trial and sentence, or undergoing sentence, they will, if
practicable, be kept apart from privates confined for
minor offenses or by sentence of an inferior court."*
1 7l8t A. w.
2 Pars. 1006 and 10.35, A. R. As to placing soldiers in irons, see page 05,
par. 3, jtost.
3 Par. 10S5, A. R. * Id., 1008.
ARREST AND CONFINEMENT. 9
5. Privates in confinement awaiting trial will not be
sent to work with i^risoners undergoing sentence if it
can be avoided ; but may, in the discretion of the com-
manding officer, be required to attend drills or be sent
to work during the usual working hours under charge
of a special sentinel. '
6. Privates in arrest may, in the discretion of the
commanding officer, be required to attend parades,
inspections, drills, school, or other military duties and
to assist in policing in and around their barracks.
7. Except as provided in the 24th Article of War, or
when restraint is necessary, no soldier will be confined
without the order of an officer, who shall previously
inquire into his offense. Confinement without trial as
a punishment for an offense is forbidden. An officer
authorizing the arrest or confinement of a soldier will,
as soon as practicable, report the fact to his company or
detachment commander."^
Sec. III. General Provisions Relating to the
Arrest of Officers and Soldiers.
1. "No * * * officer commanding a guard shall
refuse to receive or keep any prisoner committed to his
charge by an officer belonging to the forces of the
United States ; provided the officer committing shall, at
the same time, deliver an account in writing, signed by
himself, of the crime charged against the prisoner.""^
' ' Every officer to whose charge a prisoner is committed
shall, within twenty-four hours after such commitment,
or as soon as he is relieved from his guard, report in
writing,^ to the commanding officer, the name of such
prisoner, the crime charged against him, and the name
of the officer committing him * * * "^
2. ' 'All persons under guard without written charges
will be released by the old officer of the day at guard
1 Par. 1008, A. R, 2 m.^ lOOC and 1007. 3 67tli A. W.
^This report is usually written in the "Guard Report Book," and pre-
sented to tlie comniandir g officer by the old officer of the day at guard
mounting.
5 68th A. W.
10 ARREST AND CONFINEMENT.
mounting, unless specific orders to the contrary have
been given, in each case, by the commanding officer."^
No officer or soldier put in arrest or confinement will be
so restrained more than eight days, or until such time
as a court-martial can be assembled. -
1 Par. 1009, A. R. 2 70th A. W.
COURTS-MARTIAL.
COMPOSITION.
1. Courts-Martial are composed of commissioned
officers only. All officers of the Regular Army, except
those on the retired list ^ and professors of the United
States Military Academy, are eligible for detail for the
trial of offenders belonging to the Regular Army;^ but
no officer will be detailed for the trial of an officer
superior to himself in rank when it can be avoided. ^
2. Officers of the Regular Army and of the Marine
Corps, detached for service with the Army by order of
the President, may be associated together for the trial
of offenders belonging to either of these bodies.^ In
like manner regular officers may be associated with
volunteer officers for the trial of regulars or volunteers.
But with these exceptions officers of the Regular Army
are not competent to sit on courts for the trial of
offenders belonging to other forces.^
3. Officers of volunteers and of the militia, when the
latter are called into the service of the United States,
are competent to act as members of courts for the trial
of regular officers or soldiers. Militia officers are also
competent to sit upon courts for the trial of volunteers.
But courts-martial for the trial of militia must be com-
posed of militia officers only.*^
4. In the United States military service, the follow-
ing-named courts - martial are authorized: 1st, the
"General Court-martial;" 3d, the "Summary Court;"
» Sec. 1259, R. S.
2 An "acting assistant surgeon," being a civilian, is not eligible, and
chaplains are not in practice detailed as members of general courts-msirtial.
» 79th A. W. ■♦TSth id. « 77th id. « Sec. 1658, R. S.
(11)
12 CONSTITrTION.
3d, the "Garrison Court-martial;" 4th, the "Regi-
mental Court-martial."
5. The General Court-martial, being the most impor-
tant, will be first considered — the others, ordinarily
called "Inferior Courts-martial," in the order named.
But, as all courts-martial have much in common in
regard to their jurisdiction, procedure, punishment,
etc. , the text may, as a rule, be regarded as ajiposite to
all, unless the general court is specially mentioned.
Exceptions in regard to jurisdiction, etc. , will be made
as each inferior court is considered.
6. A General Court-martial may consist of any num-
ber of members from five to thirteen, inclusive, and a
judge -advocate ; but of not less than thirteen members
when this number can be convened without manifest
injury to the serviced When, in the course of a trial,
the court is reduced in number by reason of absence,
challenge, or the relieving of members, it may proceed
with business so long as five members remain. When
from any cause a general court is reduced below the
minimum, five, the remaining members should direct
the jiidge-advocate to report the fact to the convening
authority, and await further orders. In such a case,
if the trial has not been entered upon, new members
may be added ; but if any testimony has been taken,
the court should preferably be dissolved and a new one
ordered.^
CONSTITUTION^.
1. The President is empowered to institute general
courts -martial — 1st, as Commander-in-Chief of the
Army, under the Constitution ; 2d, in the special con-
tingency mentioned in the next paragraph ; 3d, in the
particular cases provided for by section 1230, Revised
Statutes.
* 75th A. W. "A decision of the appointing authority as to the number
that can he assembled without injury to the service is conclusive." (Par.
1018, A. R.)
*For form of order for general court, see page 137, post.
JURISDICTION. 13
2. Any general officer commanding an army, a teiTi-
torial division, or a department, or colonel commanding
a separate department, may appoint a general court-
martial whenever necessary. ^ But when any such com-
mander is the accuser or prosecutor of any q^cer under
his command the court must be appointed by the Presi-
dent.- In time of war this power is extended to the
commander of a tactical division or of a separate bri-
gade ; but in this case when such commander is the
accuser of any persoji under his command the court
must be appointed by the 7iext higher commander.^
3. The Superintendent of the United States Military
Academy has power to convene general courts-martial
for the trial of cadets, subject to the same limitations
and conditions now existing as to other courts-martial.'*
4. The officer who appoints a court-martial — general,
garrison, or regimental — may dissolve it, and control
its existence, but not the subject-matter of its delibera-
tions. In the absence of special orders or legislation to
that effect, personal presence within the territorial
limits of his department is not essential to the validity
of commands given by a department commander to be
executed within such limits, such, for instance, as the
appointment of a court-martial. ^
JURISDICTION.
Sec. I. Courts-martial derive their existence solely
from acts of Congress, and their jurisdiction is limited
to the purpose of the maintenance of military disci-
pline. Their decisions, within their jurisdiction, are
not reviewable by any courts whatever. '^ The 30th
Article of War relates to an exceptional procedure, not
necessary to consider in this connection.
' See par. 4, this article.
'72d A.W. As to when a commander is " tlio accuser or prosecutor,"
seo Digest Opin. J. A G., g§ 187, 188.
3 73d A. W. s See par. 213, A. R.
* Sec. 1326, R. S. « See Digest Opin. J. A. G., g 992, and note.
14 JURISDICTION.
2. Courts-martial have exclusive jurisdiction to try
for acts constituting military offenses only, and also
jurisdiction to try for acts which, besides constituting
military offenses, are civil crimes. In the latter case
the military ordinarily gives precedence to the civil
court, but when an officer or a soldier has been
arraigned before a duly constituted court-martial for
an offense triable by it, the jurisdiction thus attached
can not be set aside by the process of a State court. ^
3. ^.s' regards persons, courts-martial have jurisdic-
tion, at all times and in all places, over officers and sol-
diers of any troops, whether militia or others, mustered
arid in pay of the United States, ^ over officers and sol-
diers of the marines, when detached for service with
the Army,=^ over persons who fraudulently enlist in the
service of the United States and receive pay or allow-
*ance thereunder,^ and over offenders, in general, to
whom, owing to the commission of a crime, military
jurisdiction has legally attached — as by an -arrest or
confinement — before their discharge from service.
This jurisdiction over persons in the military service
covers all military offenses committed by them,
whether within or beyond the territorial jurisdiction
of the United States. Military offenses are not terri-
torial.
4. As a rule, military jurisdiction ends when a sol-
dier is discharged. The present exceptions to this rule
are, discharged officers and soldiers guilty of frauds
against the United States under the 60th Article of War,
and discharged officers granted trial after summary
' See authorities cited in note 2, page 295. Digest Opin. J. A. G.
2 64th A. W. This inchides retired officers and soldiers.
3Sec. 1G21, R. S.
4Aot of July 27, 1892; see G. 0. 57, A. G. 0., 1892. A fraudulent enlist-
vienl is an enlistment procured by means of a willful misrepresentation in
regard to a qualification or disqualification for enlistment, or by inten-
tional concealment of a disqualification, which has had the effect of causing
the enlistment of a man not qualified to be a soldier, and who but for such
false representation or concealment would have been rejected.
JURISDICTION. 15
dismissal, under section 1230, Revised Statutes, and
general prisoners. ^
5, In time of war this jurisdiction extends to " all re-
tainers to the camp and all persons serving with the
armies of the United States in the field, though not
enlisted soldiers;"^ to any person who "relieves the
enemy with money, victuals, or ammunition, or know-
ingly harbors or protects an enemy ;" ^ or who ' ' holds cor-
respondence with, or gives intelligence to, the enemy,
either directly or indirectly ;"^ and to spies. ^
%. As regards offenses, the jurisdiction embraces, the
offenses specifically defined in the Articles of War, or
included under the general terms of the 61st and 62d
articles; the offense of military persons trading with
the enemy, "^ and that of fraudulently enlisting in the
service of the United States.''
7. A court having once duly assumed jurisdiction of
an offense and person, can not, by any wrongful act of
the accused, be ousted of its authority or discharged
from its duty to proceed fully to try and determine,
according to law and its oath. Thus the fact that,
pending the trial, the accused has escaped from mili-
tary custody, furnishes no ground for not proceeding to
a finding, and, in the event of conviction, to a sentence,
in the case; and the court may and should find and
sentence as in any other case.
Sec. II. General Courts-Martial have, as regards per-
sons and with reference to other courts-martial, exclusive
jurisdiction over officers,** cadets,^ and "candidates for
promotion. " '** Over enlisted men, other than candidates
' Act approved June 18, 1898, page 121, 'post.
263d A. W.
3 45th A. W.
M6tli A. W.
6 Sec. 1343, K. S.
6 Sees. 6306 and 5313, R. S.
7 Act of July 27, 1892; see G. 0. 67, A. G. C, 1892. For definition of
fraudulent enlistment, see page 14, note 4, ante.
8 83d A. W. 9 Sec. 1326, R. S. 'o Act of July 30, 1892.
16 CHARGES AND SPECIFICATIONS.
for promotion, and general prisoners, they have concur-
rent jurisdiction with the inferior courts in cases cogni
zable by the latter. ^
3. As i'egards offenses,^ they have exclusive jurisdic-
tion over all offenses punishable capitally,^ and over
those set forth in the 58th Article, when committed in
time of war. Over other offenses they have concurrent
jurisdiction with the inferior courts; but all offenses
for which the limit of punishment is in excess of the
limits of the punishing power of an inferior court, as
well as all serious noncapital offenses for which limits
of punishment have not been prescribed, will, when
practicable, be tried by general court-martial.
CHARGES AND SPECIFICATIONS.
Sec. 1. A military charge corresponds to a civil in-
dictment. It consists of two parts — the technical
''charge" which designates the alleged offense in gen-
eral terms, and the " sj^ecification," which sets forth
the facts constituting the same. The requisite of a
charge is, that it shall be laid under the proper Article
of War or other statute ; of a specification, that it shall
set forth facts sufficient to constitute the particular
offense. Under the general term "charges," any num-
ber of technical charges and their specifications may be
included.
2. When an Article of War relates to but one kind of
offense, the charge may be laid as a violation of such
article. If the offense has a technical name or descrip-
tion known to the service, such as "Desertion," "Ab-
sence-without-leave," "Sleeping on post," etc., it may
iPar. 1033, A.R., prescribes that noncommissioned officers above the rank
of corporal will not, if they object thereto, bo brought to trial before regi-
mental, garrison, or summary courts-martial, without the authority of the
officer competent to order their trial by general court-martial. See also act
approved June 18, 1898, page 120, post.
2 Military offenses, wheresoever committed, are punishable under the
Articles of War ; see page 14, par. 3, ante.
3 83d A. W.
CHARGES AND SPECIFICATIONS. 17
be charged simply as such, or, preferably, also laid
under the appropriate Article of War. A charge laid
under the 61st Article of War will properly describe
the offense as "conduct unbecoming an officer and a
gentleman." A charge laid under the 62d Article of
War may give the name or description of the offense,
alleging it to be "in violation of the 62d Article of
War," or may describe it as "conduct to the prejudice
of good order and military discipline."
3. When an offense is specifically provided for in an
Article of War the charge will be laid under that article
and not under the 62d Article, Especially is it wrong to
lay a charge under the 62d Article when the offense falls
under an article which prescribes a fixed punishment.
4. In case of an absence from any appointed parade,
drill, or other exercise, but not from the limits of the
post, the charge should be laid under the 33d Article of
War; in case of absence from the post, or command,
under the 32d; and sometimes, in order that the court
may be able to judge of the full nature of the offense,
under both, as when some duty, other than an ordinary
roll call, is neglected; e. g., when a soldier, regularly
detailed for guard, absents himself not only from guard
mounting but also from his post.
5. Soldiers found drunk on any guard, party, or other
duty after having actually entered upon such duty, but
not until then discovered to be drunk, should be
charged with violation of the 38th Article of War.
6. Accused persons will not be joined in the same
charge, nor tried on joint charges, unless for concert
of action in an offense. To warrant the joining of
several persons in the same charge, the offense must be
such as requires for its commission a combination and
must have been committed in concert, in pursuance of
a common intent.
7. As to whether an act which is a civil crime is also
a military offense no rule can be laid down which will
cover all cases, for the reason that what may be a
18 CHARGES AND SPECIFICATIONS.
military offense under certain circumstances may lose
that character under others. For instance, larceny by
a soldier from a civilian is not always a military crime,
but it may become such in consequence of the particu-
lar features, surroundings, or locality of the act. What
these may be can not be anticipated with a sweeping
rule, comi^rehensive enough to provide for every possi-
ble conjunction of circumstances. Each case must be
considered on its own facts. But if the act be com-
mitted on a military reservation, or other ground occu-
liied by the army, or in its neighborhood, so as to be in
the constructive presence of the army; or if committed
while on duty, i)articularly if the injury be to a mem-
ber of the community whom it is the offender's duty to
protect ; or if committed in the presence of other sol-
diers, or while in uniform ; or if the offender use hi?
military position, or that of another, for the purpose of
intimidation or other unlawful influence or object-
such facts would be sufficient to make it prejudicial to
military discipline within the meaning of the 62d
Article of War.
Sec. II, The specification need not possess the tech-
nical nicety of an indictment at common law. A bald
statement of facts is sufficient, provided the legal
offense itself be distinctly and accurately described. '
2. In order that the accused may be left in no doubt
as to the iDrecise offense with which he is charged, the
time and place of the commission of the offense should
be stated as accurately as possible. When any doubt
exists as to the exact date and locality, it may be stated
that the act specified was committed "on or about" a
certain time, or "at or near" a given place. In pre-
paring several specifications under one charge, the time
and place of the alleged offense should be given in each.
Sec. III. Many of the Articles of War include two ol
more offenses. When a charge is to be laid under such
•Dig. Opin. J. A. G., gG95, and note.
CHARGES AND SPECIFICATIONS. 19
an article, the particular offense committed should be
stated. A specification in an alternative form is bad
pleading. For example, it is wrong to allege ' ' selling
or through neglect losing," in violation of the 17th
Article of War.
3. The prosecution is at liberty to charge an act
under two or more forms, when it is doubtful under
which it will more properly be brought by the testi-
mony. In the military practice, the accused is not
entitled to call upon the prosecution to elect under
which charge it will proceed in such, or indeed in any,
case.
Sec. IV. "Commanding officers will, before forward-
ing charges, personally investigate them, and, by
indorsement on the charges, will certify that they have
made such investigation, and whether, in their opinion,
the charges can be sustained." ^
2. Charges against an enlisted man forwarded to the
authority ordering a general court-martial, or sub-
mitted to a summary, garrison, or regimental court,
must be accompanied by the proper evidence of previ-
ous convictions.-^ "General courts -martial will con-
sider only such evidence of previous convictions as is
referred to them by the convening authority.^"
3. Charges against an enlisted man forwarded to the
authority competent to order a general court-martial
for his trial will also be accompanied by a statement of
service ^ in accordance with the form given on page 13G,
post. In case of a deserter the surgeon's report required
by paragraph 132, Army Regulations, will also be for-
warded. ^
Sec. V. After charges have been fonnally referred by
competent authority to a court-martial for trial, the
court is not authorized, in its discretion and upon its
own motion, to strike out a charge or sjiecification, or
» Tiir. 1029, A. R. * See page 60, par. 6, post.
2 Id., 1038 ; see page 45, par. 2, post. ^ For form, see page 136, post.
^Id.
20 ORGANIZATION.
to direct or permit the judge -advocate to drop, or with-
draw, such charge or specification, or to enter a nolle
prosequi as to the same. For such action the authority
of the convening officer is requisite. Where, however,
by a special plea or objection, an i^ime is made by the
accused as to the sufficiency of any charge and specifica-
tion, the court, without referring the question to the
convening officer, is empowered to sustain the plea or
objection, and quash or strike out the charge.
ADDITIONAL. CHARGES.
1. After the accused has been arraigned upon certain
charges, has pleaded thereto, and the trial on the same
has been entered upon, new and additional charges,
which the accused has had no notice to defend, can not
be introduced or the accused required to plead thereto.
Such charges should be made the subject of a separate
trial, upon which the accused may be enabled properly
to exercise the right of challenge to the members of the
court and effectively to plead and defend.
ORGANIZATION.
1. The authority appointing a court-martial designates
the place for holding the court, the hQur of meeting,
the members of the court, and a judge-advocate.'
2. Courts will be assembled at posts or stations where
trial or examination will be attended with the least
. expense. They will, as far as practicable, hold their
sessions so as to interfere least with ordinary routine
duties.
3. A general court-martial assembles, at its first ses-
sion in accordance with the order convening it ; there-
after, according to adjournment. The members wear
full-dress uniform with their swords, except in inclem-
ent weather, when the president of the court may
authorize undress uniforms ; the judge-advocate appears
in undress uniform without the sword ; the accused, if
' Pars. 1018 and 1019, A. B.
THE MEMBERS. 21
an officer or noncommissioned officer, appears in full
dress ; if a private, in undress, and is without arms in
any case. Military witnesses wear full dress, with
their swords or side arms. The accused should not be
brought before the court in irons, unless there are good
reasons to believe that he will attempt to escape or
conduct himself in a violent manner ; but the fact that
a prisoner has been tried in irons can not, in any case,
affect the validity of the proceedings.
4. When the court is ready to proceed, the members
take seats at a table provided for their use ; the presi-
dent sits at the head of the table and the other members
at his right and left alternately, according to rank.
The judge -advocate sits at the foot of the table or at a
separate table ; the accused and his counsel at a table
provided for them and placed in a convenient position.
A witness, when testifying, is seated near the judge-
advocate, and the reporter at a table placed near the
witness' chair.
5. The order of procedure is given in detail in the
"form for record of a general court-martial," page 137,
post. During the reading of the order convening the
court and the arraignment, the judge -advocate and the
accused should stand; while the court and the judge-
advocate are being sworn, all stand ; when a reporter, an
interpreter, or a witness is being sworn, he and the
judge-advocate should stand ; and when the judge-advo-
cate, the accused, or his counsel addresses the court, he
should rise.
6. The organization of the court is complete on the
swearing in of the members and the judge-advocate.
THE MEMBERS.
1. Members of a court-martial will be named in the
order appointing it, in accordance with their rank.
They will sit according to rank as announced, and will
' * behave with decency and calmness." ' A court-martial
»Par. 1018, A. R., and the 87th A. W.
22 THE PRESIDENT.
has no power to punish its members, but a member is
liable for improper conduct as for any other offense
against military discipline. Improper words used by a
member should be taken down in writing, and any dis-
orderly conduct reported to the appointing authority. ^
Reading of newspapers or other evidence of inatten-
tion by members of a court-martial during its sessions
constitutes a violation of duty to the prejudice of good
order and military discipline. It is the duty of the
president of the court to admonish against such inatten-
tion, and charges may be preferred against a member
who does not heed the admonition.
2. ' ' Members of a court-martial, in giving their votes,
shall begin with the youngest in. commission.'"^ In all
deliberations the law secures the equality of the
members.
3. When a member is prevented from attending a
session of the court he will communicate the cause to
the judge-advocate, so that the same may be entered in
the record of proceedings. If he fails to do so it is the
duty of the president at the next meeting of the court
to call upon him for such explanation as he may desire
to make.
4. A member stationed at the place where a court-
martial sits is liable to duty with his command during
adjournment of the court from day to day.^
THE PRESIDENT.
1. "A president of the court will not be announced.
The officer highest in rank present will act as presi-
dent. "■* Besides his duties and privileges as a member,
the president is the organ of the court to maintain
order and conduct its business. He speaks and acts for
' Par. 1021, A. R.
*95th A. W. A tie vote on the findings is a vote of "not guilty;" a tie
vote on a proposed sentence or on any objection or motion is a vote in the
negative. The sentence is not adopted, and the objection or motion is not
sustained.
8Par. ini9, A, R. 4 Id., 1020.
THE JUDGE-ADVOCATE. • 23
the court in every instance where a rule of action has
been prescribed by law, regulations, or its own resolu-
tion. He administers the oath to the judge-advocate
and authenticates by his signature all acts, orders, and
proceedings of the court requiring it.
THE JUDGE- ADVOCATE.
1. "The judge-advocate * * shall prosecute in the
name of the United States, but when the prisoner has
made his plea he shall so far consider himself counsel
for the prisoner as to object to any leading question to
any of the witnesses, and to any question to the pris-
oner, the answer to which might tend to criminate
himself. " ^
2. Before the court assembles the judge -advocate should
note and report any irregularity in the order convening
the court and see that the charges are technically and
correctly drawn. He may ordinarily correct obvious
mistakes of form, or slight errors in name, dates,
amounts, etc. , but he should not, without the authority
of the convening officer, make substantial amendments
in the allegations, or — least of all — reject or withdraw
a charge or specification, or enter a nolle prosequi as to
the same, or substitute a new and distinct charge for
one transmitted to him for trial.
3. The judge-advocate should acquaint the prisoner
with the accusations against him, inform him of his right
to have counsel, '■* and to testify in his own behalf, and
furnish him with a copy of the charges, if desired. He
may ask a prisoner how he intends to plead ; but, when
the accused is an enlisted man, he shoald in no case try
to induce him to plead guilty or leave him to infer that
if he does so his punishment will be lighter. "When the
accused determines to plead guilty the judge -advocate
should advise him of his right to introduce evidence in
explanation of his offense, and should assist him in secur-
ing it ; and if the charge be desertion, the judge-advocate
> 90th A. W. » See page 25, post.
24 THE JUDGE-ADVOCATE.
should satisfy himself that the accused, understands
that such plea will be an admission of his unauthorized
absence with the intention of not returning.
4. The judge-advocate should also, before the court
assembles, obtain a suitable room for the court, see that
it is in order, procure the requisite stationery, summon
necessary witnesses,' make a preliminary examination
of the latter, and as far as possible systematize his plans
for conducting the case.
5. During the trial the judge-advocate conducts the
case for the Government. He executes all orders of
the court; reads the convening order to the accused;
swears the members of the court, the reporter, inter-
preter, and all witnesses; arraigns the accused; ex-
amines witnesses; keeps, or superintends the keeping
of, a complete and accurate record of the proceedings, ^
and affixes his signature to each day's proceedings.^
In con j notion with the president of the court he
authenticates the record by his signature,^ and at the
end of the trial transmits the same to the convening
authority.^ Whenever, by reason of the death or dis-
ability of the judge-advocate occurring after the court
has decided on the sentence, the record can not be
authenticated by his signature, it must show that it
has been formally approved by the court and must be
authenticated by the signature of the president.^
6. While the court is in open session the judge-advo-
cate should respectfully call the attention of the court
to any illegalities in its action, and to any irregularities
in its proceedings. He should act as legal adviser of
the court so far as to give his opinion upon any point
of law arising during the trial, when it is asked for by
the court, but not otherwise.
* See page 33, post.
* For form for record, see page 137, -post.
s Par. 1055, A. R.
< Id., 1057. The proceedings of all courts appointed by the President
will be sent direct to the Secretary of War. (Par. 993, A. R.)
8 Id., 1055.
COUNSEL. 25
7. When a court sits in closed session the judge-
advocate will withdraw, and when his legal advice or
assistance is required, it will be obtained in open court. '
8. Throughout the trial the judge-advocate should do
his utmost to present the whole truth of the matter in
question. He should oppose every attempt to suppress
facts or to torture them into false shapes, to the end
that the evidence may so exhibit the case that the court
may render impartial justice.
9. The judge-advocate should regard his duty toward
the accused as not strictly limited by the 90th Article
of War, and when the latter is ignorant and without
counsel the judge-advocate should take care that he
does not suffer upon the trial from any ignorance or
misconception of his legal rights, and has full oppor-
tunity to interpose such pleas and make such defense
as may best bring out the facts, the merits, or the
extenuating circumstances of his case.
10. Whenever the court adjourns to meet at the call
of the president, the judge-advocate will notify the
members of the time designated by the president for
reassembling.
COUNSEL.
1. The commanding officer of a post where a general
court-martial is convened will, at the request of any
prisoner who is to be arraigned, detail a suitable officer
as counsel for the defense. Officers directly responsible
for the discipline of organizations serving at the post
and the trial officer of the summary court are not
eligible for this duty. If there be no such officer
available for detail the fact will be reported to the
authority appointing the court for his action. ^
2. An officer detailed as counsel for a soldier before
a general court-martial should guard the interests of
> Par. 1022, A. R.
2 Id., 1037. This privilege of being represented by counsel does not
apply to cases before inferior courts.
26 REPORTER.
the accused by all honorable and legitimate means
known to the law, so far as they are not inconsistent
with military relations.' He should not obstruct the
proceedings with frivolous or manifestly useless ob-
jections.
3. If the judge-advocate keeps the record in longhand
the counsel will be required to reduce his questions and
arguments to writing; but if the court has a steno-
graphic reporter the counsel will be allowed to question
witnesses and address the court orally.
REPORTER.
1. "The employment of a stenographic reporter,
under section 1203, Revised Statutes, is authorized for
general courts only, and in cases where the convening
authority considers it necessary. The convening au-
thority may also, when necessary, authorize the detail
of an enlisted man to assist the judge-advocate of a
general court in preparing the record. "^
2. "When a reporter is employed under section 1203,
Revised Statutes, he shall be paid upon the certificate
of the judge -advocate not to exceed one dollar an hour
for the time occupied in court by himself or a competent
assistant necessarily employed for him by the judge-
advocate, and fifteen cents per 100 words for the first
and five cents per 100 words for each additional copy of
the transcript of notes and of exhibits copied ; and in
case the court is held more than ten miles from the
place of employment of himself and assistants they shall
each be allowed mileage over the shortest usually trav-
eled route at the rate of eight cents per mile going to
the place of holding the court and three dollars a day
for expenses while necessarily kept by the judge-advo-
cate away from the place of employment. " ^
3. Reporters will be paid by the Pay Department, on
the certificate of the judge-advocate.
1 Par. 1037, A. B. « jj., 1062. a la., 1063.
INTERPRETER — CHALLENGE. 27
4. "No person in the military or civil service of the
Government can lawfully receive extra compensation
for clerical duties performed for a military court. "^
INTERPRETER.
1. " Interpreters to courts-martial are paid by the Pay
Department upon the certificate of the judge-advocate
that they were employed by order of the court. They
will be allowed the pay and allowances of civilian wit-
CTIALLENGE.
1. "Members of a court-martial maybe challenged
by a prisoner; but only for cause stated to the court.
The court shall determine the relevancy and validity
thereof, and shall not receive a challenge to more than
one member at a time."^
2. A positive declaration by the challenged member
that he is not prejudiced against the accused, nor inter-
ested in the case, is ordinarily satisfactory to the accused,
and, in the absence of material evidence in support of
the objection, will justify the court in overruling it. If,
however, the statement is unsatisfactory, or the member
makes no response, the accused may offer testimony in
support of his objection or may subject the challenged
member to an examination by interrogatories in the
same manner that a juror is examined in criminal courts.
If the accused desires that the challenged member be
put on his voir dire, the judge-advocate will administer
the oath before the court is sworn.
3. Courts should be liberal in passing upon challenges,
but they will not entertain an objection that is not spe-
cific, nor one upon the mere assertion of the accused, if
it is not admitted by the challenged member. A chal-
lenge upon the ground, admitted or proven, that a
J Par., 1064, A. R.
2 Id., 1005. As to pay, etc., of civilian witness, see page 40, post.
^ 88th A. W. This Article of War authorizes the exercise of the right of
jhalleuge before all courts except summary courts.
28 OATHS.
member preferred the charges and is a material witness
in support thereof, or that he has investigated the
charges and expressed the opinion that they can be
established, should be sustained by the court.
4. The court of itself can not excuse a member in the
absence of a challenge. A member, not challenged,
who thinks himself disqualified, can only be relieved
by application to the convening authority. No member
who has been absent during the taking of evidence shall
thereafter take i)art in the trial ; but this x^rovision shall
not be construed as invalidating the proceedings ot
courts-martial when not complied with and no objec-
tion is made, but is to be regarded as a requirement
which should always be complied with when practi-
cable. Especially should a member who has been absent
during an important part of the proceedings not be per-
mitted to resume his seat.
5. The judge -advocate is not challengeable; but in
case of i)ersonal interest in the trial he should apply to
the convening authority to be relieved.
OATHS.
Of Members. — The judge advocate shall administer to
each member of the court, before proceeding upon any
trial, the following oath, which shall also be taken by
all members of regimental and garrison courts-martial : '
"You, A B, do swear that you will well and truly try
and determine, according to evidence, the matter now
before you, between the United States of America and
the prisoner to be tried, and that you will duly admin-
ister justice, without partiality, favor, or affection,
according to the provisions of the rules and articles for
the government of the armies of the United States, and
if any doubt should arise, not explained by said articles,
then according to your conscience, the best of your
' Whenever the same court-martial tries more tlian one prisoner on sepa-
rate and distinct charges, the court will be sworn at the commencement of
each trial.
OATHS. 29
understanding, and the custom of war in like cases;
and you do further swear that you will not divulge the
sentence of the court until it shall be published by the
proper authority, except to the judge-advocate; neither
will you disclose or discover the vote or opinion of any
particular member of the court-martial, unless required
to give evidence thereof, as a witness, by a court of
justice, in a due course of law. So help you God."'
2. Of the Judge- Advocate. — When the oath has been
administered to the members of a court-martial, the
president of the court shall administer to the judge -
advocate, or person officiating as such, an oath in the
following form : ^
"You, A B, do swear that you will not disclose or dis-
cover the vote or opinion of any particular member of
the court-martial, unless required to give evidence
thereof, as a witness, by a court of justice, in due course
of law ; nor divulge the sentence of the court to any but
the proper authority, until it shall be duly disclosed by
the same. So help you God."=^
3. Of Witness. — All persons who give evidence before
a court martial shall be examined on oath, or affirma-
tion, in the following form :
"You swear (or affirm) that the evidence you shall
give, in the case now in hearing, shall be the truth, the
whole truth, and nothing but the truth. So help you
God."''
4. Of Reporter.—" You swear that you will faithfully
perform the duties of reporter to this court. So help
you God."^
5. Of Interpreter. — "You swear that you will truly
interpret in the case now in hearing. So help you
God."
1 84th A. W.
2 During the administration of the oaths to the court and the judge-advo-
cate, all members of the court, the judge-advocate, and the accused stand.
3 85th A. W.
4 92d id.
* The reporter must be sworn in each case.
30 POSTPONEMENT.
6. Voir Dire. — " You swear that you will true answers
make to questions touching your comi^etency as a mem-
ber of the court (or witness) in this case. So help you
God."
7. Judge-advocates of departments and of courts-
martial, and the trial officers of summary courts, are
authorized to administer oaths for the purposes of mili-
tary justice, and for other purposes of military admin-
istration. '
8. "Any officer or clerk of any of the departments
lawfully detailed to investigate frauds on, or attempts to
defraud, the Government, or any irregularity or mis-
conduct of any officer or agent of the United States, and
any officer of the Army detailed to conduct an investi-
gation, and the recorder, and if there be none the pre-
siding officer of any military board appointed for such
purpose, shall have authority to administer an oath to
any witness attending to testify or depose in the course
of such investigation. " ^
POSTPONEMElNrT.
1. If postponement is necessary, application therefor
should ijroperly be made to the convening authority
before the accused is arraigned. The court may ' ' for
reasonable cause, grant a continuance to either party,
for such time, and as often as may appear to be just:
Provided, That if the prisoner be in close confinement,
the trial shall not be delayed for a period longer than
sixty days. " ^
2. Upon application by the accused for postponement
of trial because of the absence of a witness, it should
distinctly appear, on his oath, that the witness is mate-
rial, and why, and that the accused has used due dili-
gence to procure his attendance, and has reasonable
ground to believe, and does believe, that he will be able
« Act of July 27, 1S92 ; see G. 0. 57, A. CO., 1892.
.*Scc. 183, R. S., as amended by act of March 2, 1901, p. 123, pos/.
3 93d A.W.
ARRAIGNMENT — PLEAS. 31
to procure such attendance within a reasonable time
stated.
3. Application for extended delay will, when practi-
cable, be made to the authority appointing the court.
When made to the court, and if, in the opinion of the
court, it is well founded, it will be referred to the con-
vening authority to decide whether the court shall be
adjourned or dissolved.
ARRAIGNMENT.
1. The court being organized, and both parties ready
to proceed, the judge-advocate will read the charges
and specifications, separately and in order, to the ac-
cused, and ask him how he pleads to each — " guilty," or
"not guilty." The order pursued, in case of several
charges or specifications, will be to arraign on the first,
second, etc., specifications to the first charge, then on
the first charge, and so on with the rest.'
PL.EAS.
1. Ordinarily the plea of the accused is "guilty" or
"not guilty " to each charge and specification ; or, guilty
of a specification excepting certain words, and of the
excepted words not guilty ; or, as when charged with an
offense which includes a lesser one of kindred degree,
guilty to the specification except certain words, substi-
tuting therefor certain others, and to the charge not
guilty, but guilty of the lesser kindred offense. ^
2. A plea of guilty does not necessarily exclude evi-
dence. In cases of discretionary punishment, ^ a full
knowledge of the circumstances attending the offense is
essential to the court in measuring the punishment, and
to the convening authority in acting on the sentence.
It is, therefore, proper for the court to take evidence
after a plea of guilty, except when the specification
' During the arraignment tlie judge-advocate and the accused stand.
* See page 4;5, par. 3, post. ^ g^e j)age 45, post.
32 PLEAS.
is so descriptive as to disclose all the circulnstances of
mitigation or aggravation.
3. In all cases after a plea of guilty, the accused will
be permitted to offer evidence in mitigation of the
offense charged.
4. "When testimony is heard after a plea of "guilty,"
the accused may cross-examine the witnesses, produce
evidence to rebut their testimony, offer evidence as to
character, and address the court in extenuation of the
offense or in mitigation of punishment.
5. When the accused jileads "guilty" and, without
any evidence being introduced, makes a statement in-
consistent with his plea, the statement and plea will be
considered together, and if guilt is not conclusively
admitted, the court will direct the entry of a plea of
" not guilty," and proceed to try the case on the general
issue thus made.
6. If the prisoner, from obstinacy or deliberate de
sign, stands mute, or answers foreign to the puri^ose,
the court will proceed to trial and judgment as if the
prisoner had pleaded " not guilty." ^
7. Instead of pleading to the general issue, the ac-
cused may plead in bar of trial,^ either to the jurisdic-
tion, by denying the legal right of the court to try him,
or he may make a special plea to any specification, pre-
senting reasons why he should not be tried on it. The
burden of substantiating such pleas rests on the ac-
cused. Both sides should be heard, and the proceed-
ings under the plea recorded. If the plea in bar of
trial be found valid, the court will report its decision
to the convening authority and await further instruc-
tions; if, by the special plea, an issue is made, the
court is empowered to sustain or overrule the plea;''
when a special plea is made and overruled, the accused
will be required to plead to the general issue.
J 89th A. w.
2 As to plea of autrefois acquit in a case involving both a civil and a mili-
tary offense, see Digest Opin. J. A. G., gg306, 1036, and notes.
* See page 19, Sec. v, ante; also, i ago 145, note 2, post.
ATTENDANCE OF WITNESSES. 33
8. A second enlistment in the service of the United
States, when the first has not been fulfilled, is not void,
but voidable at the option of the United States only ; so
that a man who, whilst serving under such a second
enlistment, commits an offense, can not successfully
plead the fraudulent character of his second enlistment
in bar of trial. Paragraph 145, Army Regulations, re-
lates to soldiers not charged with crime who are dis-
covered to be deserters from the Navy or Marine Corps,
and does not interpose any obstacle to trial by court-
martial for offenses committed while in the military
service.
9. The statute of limitation (103d Article of War) is
not prohibitory as to jurisdiction, ^ but is properly a
matter of defense, which, to be effective, must be
pleaded and proved, or, in some express manner, taken
advantage of on the evidence.
ATTENDANCE OF WITNESSES.
Sec. I. " The judge -advocate will summon the neces-
sary witnesses for the trial, but will not summon wit-
nesses at the expense of the Government without the
order of the court unless satisfied that their testimony
is material and necessary," ^
2. The accused is, in general, entitled to have all the
material witnesses for his defense summoned ; except
when their testimony would be merely cumulative, and
evidently add nothing to the strength of his case. As
far as possible, he should be allowed a full and free de-
fense, as the least denial to him of any proper facility,
opportunity, or latitude for it may serve to defeat the
ends of justice.
Sec, II, To procure the attendance of witnesses sta-
tioned or residing within the State, Territory, or Dis-
trict in which the court is ordered to sit, and to compel
> See Digest Opin. J, A. G., g 320, and note. 2 Par. 1023, A, R.
12915 3
34 ATTENDANCE OF WITNESSES.
them to testify, etc., the judge-advocate will proceed as
follows :
1. Judge-advocates of courts-martial will, whenever
it is possible, send subpoenas through military channels. ^
In case a witness duly subpoenaed before a general
court-martial refuses to appear or qualify as a witness,
or to testify or produce documentary evidence, as
required by law, he will at once be tendered or paid by
the nearest paymaster his fees and mileage, and will
thereupon be again called upon to comply with the
requirements of the law.^
2. If the desired witness is a civilian, living near the
post where the court is convened, duplicate subpoenas ^
will be prepared, one of which will be served upon the
witness by the judge-advocate or by any person in-
structed by him ; if the residence of the witness wanted
is not near the post, but still within the State, etc. , the
judge-advocate will send the duplicate subpoenas to the
convening authority, requesting service of the same.
3. Service is made, under court-martial practice, by a
personal delivery of the subpoena to the witness ; and
proof of service by returning the duplicate original to
the judge-advocate, indorsed as explained in the form
published on page 160, post. Any person instructed by
the judge -advocate or post commander may serve the
subpoena,'* but the service must he personal.
4. Should a witness fail to appear ^ after due and rea-
sonable notice, the judge -advocate has power to issue
the like process to compel him to appear and testify
which courts of criminal jurisdiction within the State,
Territory, or District where such court is convened may
>Par. 1024, A. R.
2 See act of Congress approved March 2, 1901, page 122, post, and par.
1067, A. R.
3 For forms, see pages 159 and 160, post.
4 Par. 1023, A. R.
fi Such witness may also be prosecuted under act of Congress approved
March 2, 1901; see page 122, post.
ATTENDANCE OF WITNESSES. 35
lawfully issue. ^ This power also includes the power to
execute such process through an officer, who shall be
specially charged with its execution, ^
5. Whenever it becomes necessary to enforce the at-
tendance of a witness, the judge-advocate will issue a
warrant of attachment ^ directing and delivering it for
execution to an officer designated by the department
commander for the purpose. He will also deliver to
this officer the subpoena, indorsed with affidavit of
service (to be returned when the warrant is executed),
and a certified copy of the order appointing the court-
martial.
6. In executing such process it is lawful to use only
such force as may be necessary to bring the witness
before the court. Whenever force is actually required,
the post commander nearest witness's residence will
furnish a military detail sufficient to execute the pro-
cess.-*
7. If, in executing this legal process, the officer de-
tailed for that purpose should be served with a writ of
habeas corpus from any United States court, or by a
United States judge, for the production of the witness,
the writ will be promptly obeyed and "the person
alleged to be illegally restrained of his liberty will be
taken before the court from which the writ has issued,
and a return made setting forth the reasons for his
restraint. The officer upon whom such a writ is served
will at once report, by telegraph, the fact of such service
direct to the Adjutant General of the Army and to the
commanding general of the department."^
8. If, however, the writ of habeas corpus is issued by
any State court (or a State judge) it will be the officer's
duty to make respectful return, in writing, informing
the court that he holds the person named in the writ -by
•Sec. 1202, R.S.
212 Opiiis. Atty. Gen., 501.
3 For form, see page IGl, post.
* Par. 1026, A. R.
6 Id., 1075. For general form for return, see page 168, post.
36 ATTENDANCE OF WITNESSES.
authority of the United States pursuant to a warrant of
attachment issued under section 1202 of the Revised
Statutes of the United States by a judge-advocate of a
lawfully convened court-martial, and that the Supreme
Court of the United States has decided that State courts
and judges are without jurisdiction in' such cases. ^
9. After having made the above return, it is the duty
of the officer to obey the process of the United States,
to hold the prisoner in custody under it, and to refuse
obedience to the mandate or process of any other gov-
ernment. And, consequently, it is his duty not to take
the prisoner, nor suffer him to be taken, before a State
judge or court upon a writ of habeas corpus issued
under State authority.^
10. "Every person not belonging to the Army of the
United States who, being duly subpoenaed to appear as
a witness before a general court-martial of the Army,
willfully neglects or refuses to appear, or refuses to
qualify as a witness or to testify or produce documentary
evidence which such person may have been legally sub-
j)oenaed to produce, shall be deemed guilty of a misde-
meanor, for which such person shall be punished on
information in the district court of the United States ;
and it shall be the duty of the United States district
attorney, on the certification of the facts to him by the
general court-martial, to file an information against
and prosecute the person so offending, and the punish- '
ment of such person, on conviction, shall be a fine of
not more than five hundred dollars or imprisonment not
to exceed six months, or both, at the discretion of the
court : Provided, That this shall not apply to persons
residing beyond the State, Territory, or District in
which such general court-martial is held, and that the
fees of such witness, and his mileage at the rates pro-
vided for witnesses in the United States district court
for said State, Territory, or District shall shall be duly
' Pars. 1073 and 1074, A. R. For form for return, Bee page 170, post.
*See cases cited in " Form B," page 170, post.
ATTENDANCE OF WITNESSES. 37
paid or tendered said witness, such amounts to be paid
by the Pay Department of the Army out of the appro-
I)riation for compensation of witnesses : Provided, That
no witness shall be compelled to incriminate himself or
to answer any questions which may tend to incriminate
or degrade him,"'
Sec. III. To procure the testimony of witnesses sta-
tioned or residing without the State, etc., the following
practice will he observed:
1. A writ of attachment does not run beyond the
State, Territory, or District in which the court-martial
sits. The testimony of civilian witnesses residing be-
yond 2 such State, Territory, or District will ordinarily
be taken by deposition under the 91st Article of War;
but this can not be done when it is necessary that they
should be confronted with the accused. In such cases
their testimony can only be taken on their voluntarily
appearing before the court.
The testimony of military witnesses stationed or re-
siding beyond ^ the State, Territory, or District in which
the court sits will also ordinarily be taken by deposition.
2. The method of procedure to obtain a deposition ^^
is as follows :
The party, prosecutor or defendant, desiring the depo-
sition, submits to the court a list of interrogatories to
be propounded to the absent witness ; the opposite party
then prepares and submits a list of cross-interrogatories,
a reasonable time being allowed for this purpose ; redi-
rect and recross-interrogatories are added, if desired;
finally the court, having assented to the interrogatories
thus submitted, adds such as, in its judgment, may be
necessary to elucidate the whole of the witness's testi-
mony.
The interrogatories having been accepted by the court,
the. judge-advocate will prepare duplicate subpoenas"
1 Act of Congress approved March 2, 1901, sec. 1, page 121, post.
2 See page 162, note 1, post. * For form, see page 159, post.
8 For form, see page 162, post.
38 ATTENDANCE OF WITNESSES.
requiring the witness to appear in person, at a time and
place to be fixed by the officer, military or civil, who is
to take the deposition. If the name of this officer is
not known, the space for it will be left blank.
The judge-advocate will then send the interrogatories
and subpoenas to the convening authority, with a request
that the deposition be secured.
Depositions may also be taken before the assembling
of the court-martial, on interrogatories and cross-inter-
rogatories or reasonable notice, subject to exceptions
when read in court.
3. Judge-advocates of departments and of courts-
martial, and the trial officers of summary courts, are
authorized to administer oaths and take depositions. '
If none of these officers are available, any other army
officer may be designated to see that the deposition is
properly taken ; - but the oath in such a case must be
administered and the dex)Osition authenticated by a civil
officer empowered by law to administer oaths for gen-
eral purposes.
4. Upon the return of the interrogatories and deposi-
tion they will be submitted to the court by the president
or judge-advocate. The papers will then be properly
marked, appended to the record, and referred to in the
proceedings, where all action upon the subject necessary
for the information of the reviewing authority will be
recorded.
5. Upon the receipt of the deposition, the judge-advo-
cate will also prepare and sign the ordinary ' ' accounts
for a civilian witness," ^ substituting for the usual state-
ment in regard to attendance before the court a state-
ment that he duly attended as a witness at a certain
1 Sec. 4, act of July 27, 1892; see G. 0. 57, A. G. 0. 1892.
2 An oflBcer so designated will, before serving the subpoena, complete it if
necessary by inserting the name and official designation of the notary (or
other official having authority to administer the oaths), before whom it is
to be taken and the date on which and place where it is proposed to take
it. When the deposition has been duly taken, he will certify to this fact
and transmit it to the president of the court.
' For form see page 1G4, post.
ATTENDANCE OF WITNESSES. 39
time and place and duly gave his deposition before a
certain official named, and then transmit them to the
witness with duplicate copies of the order convening
the court. The period of attendance can be ascertained
from the deposition.
6. In capital cases (1 e., those in which the offense is
punishable by death)/ or in cases where the judge-
advocate can certify "that the interests of justice de-
mand that the witness shall testify in the presence of
the court, " the regular subpoenas will be made out by
the judge-advocate, certified to as above, if necessary,
and transmitted to the department commander, with a
request that they be duly forwarded to the witness, if
an officer, or to the nearest post commander for service,
if the witness is an enlisted man or a civilian.
7. "An officer or enlisted man who receives a sum-
mons to attend as a witness before any military court,
board, civil court, or other tribunal competent to issue
subpoenas, which is sitting beyond the limits of the de-
partment where he is serving, will, before starting to
obey the summons, forward it through the proper
channel to his department commander, that necessary
orders, or authority to obey a civil process, may be
given. In urgent cases, or when the public interest
would be liable to suffer by delay, a post commander
may authorize immediate departure, reporting his
action and reasons therefor to the department com-
mander. "^
8. "Officers and enlisted men reporting as witnesses
before a civil court should receive from the civil
authorities the necessary expenses incurred in travel
and attendance ; neither mileage nor travel allowances
will be paid in such cases by the War Department.
If, however, it is absolutely necessary to furnish them
transportation in kind to enable them to appear, as
witnesses for the Government, before a civil court
1 In time of peace, desertion is not a capital offense.
2Par. 1025, A. R.
40 FEES OF WITNESSES.
of the United States, an account of such expenditure,
together with the evidence that they were properly
subpoenaed and did attend the court, will be forwarded
to the War Department for presentation to the Depart-
ment of Justice. Officers providing such transporta-
tion will notify the court, or the marshal thereof, that
it was furnished to enable the witnesses to perform the
requisite journeys in obedience to the summons."^
FEES OF WITNESSES.2
1. A civilian ivitness before a court-martial is entitled,
upon his discharge, to receive from the judge -advocate
a certificate, setting forth the fact of his having been
summoned as a witness in the case, and the number of
days of his attendance in that capacity before the court.
To entitle a witness to the payment of fees, it is not
absolutely essential that he should produce a formal
subpoena, addressed to and complied with by him, or
that he should have been formally summoned in the
case. A strict observance, however, of section I, page
33, ante, would require the issue of formal subpoenas
to witnesses on both sides, and it is the better practice
for the judge-advocate to causQ such to be served in
each instance. ^
3. ' ' Civilians in the employ of the Government when
traveling upon summons as witnesses before military
courts are entitled to transportation in kind from their
place of residence to the place where the court is in
session and return. If no transportation be furnished,
they are entitled to reimbursement of the cost of travel
actually performed by the shortest usually traveled
route, including transfers to and from railway stations,
1 Par. 84, A. K.
' When the employment of experts is necessary in a trial by court-martial,
the judge-advocate will apply to the Secretary of War for authority to em-
ploy them and for a decision as to the compensation to be paid them.
3 A civilian witness must be duly subpoenaed and tendered fees under the
act of Congress approved March 2, 1901, in order to maintain the prosecu-
tion authorized by that act. See page 36, par, 10, ante.
FEES OF WITNESSES. 41
at rates not exceeding fifty cents for each transfer, and
the cost of a double berth in a sleeping car or steamer
when an extra charge is made therefor. They are also
entitled to reimbursement of the actual cost of meals
and rooms at a rate not exceeding three dollars per day
for each day actually and unavoidably consumed in
travel or in attendance upon the court under the order
or summons. No allowance will be made to them
when attendance upon court does not require them to
leave their stations."^
3. A civilian not in Government employ duly sum-
moned to appear as a witness before a military court
will receive fees and mileage at the rates provided for
witnesses in the United States district court for the
State, Territory, or District in which the court is held,
and said fees and mileage shall be duly paid or tendered
said witness, such amounts to be paid by the Pay De-
partment of the Army out of the appropriation for
compensation of witnesses. ^
4. ' ' The charges for return journeys of witnesses will
be made upon the basis of the actual charges allowed
for travel to the court, and the entire account thus
completed will be paid upon discharge from attendance,
without waiting for completion of return travel. "^
5. "The items of expenditure authorized in para-
graphs 1066 and 1067 (Army Regulations) will be set
iPar. 1066, A. R.
2 Act approved Marcli 2, 1901, sec. 1, page 122, post. The laws governing
fees and mileage to witnesses in United States courts are as follows :
" For each day's attendance in conrt, or before any officer pursuant to law,
one dollar and fifty cents, and five cents a mile for going from his place of
residence to the place of trial or hearing, and five cents a mile for return-
ing." (Sec. 848, R. S.)
"Witnesses in the United States courts in the States of Wyoming, Mon-
tana, Washington, Oregon, California, Nevada, Idaho, and Colorado, and
in the Territories of New Mexico, Arizona, and Utah, shall be entitled to
and receive fifteen cents for each mile necessarily traveled over any stage
line or by private conveyance, and five cents for each mile over any railway
in going to and returning from said courts." (Act approved Augusts, 1892,
2 Sup. R. S., 65.) As to Porto Rico, see page 166, post.
•Par. 1068, A. R.
42 EXAMINATION OF WITNESSES.
forth in detail and made a part of each voucher for
reimbursement. No other items will be allowed. The
correctness of the items will be attested by the affida-
vit of the witness, to be made when practicable before
the judge-advocate, and the voucher will be accom-
panied by the original summons or a duly certified
copy thereof. The certificate of the judge-advocate
will be evidence of the fact and period of attendance,
and will be made upon the voucher. " ^
7. ' ' Compensation to civilians in or out of Govern-
ment employ for attendance upon civil courts is payable
by the civil authorities." -^
EXAMINATION OF WITNESSES.
1. Witnesses are usually examined apart from each
other, no witness being allowed to be present during the
examination of another who is called before him. But
this rule is not inflexible ; it is in modern practice sub-
ject to the discretion of the court, nor is it ever so
rigidly observed as to exclude the testimony of a person
who has inadvertently been present at the examination
of other witnesses.
2. Courts-martial follow in general, so far as apposite,
the common -law rules of evidence ^ as observed by the
United States courts in criminal cases, but they are not
required by statute to do so, and a certain latitude in
the introduction of evidence and the examination of
witnesses, by an avoidance of technical and restrictive
rules, is permissible when it is in the interest of the
administration of military justice, but no witness shall
be compelled to incriminate himself or to answer any
question which may tend to incriminate or degrade him.''
1 Par. 1069, A. B. « Id., 1070.
' Copies of any records or papers in the War Department or any of it?
bui-eaus, if authenticated by the impressed stamp of the bureau or office
having custody of the originals (e. g., "Adjutant General's Office, Official
Cujiy"), maybe admitted in evidence equally with the originals thereol
before any court-martial, court of inquiry, or in any administrative matter
under the War Department. (G. 0. 91, A. G. 0., 1900.)
* Act of Congress approved March 2, 1901, sec. 1, page 122, ;po8l.
MNDIITG. 43
S. While the proper and usnal order and sequence of
examination of witnesses is outlined in the ' ' form for
record of a General Court-Martial, " page 137, 2>ost, the
court may, in the interest of truth and justice, call or
recall witnesses, or permit their recall at any stage of
the proceedings ; it may permit material testimony to
be introduced by either party quite out of its regular
order and place, or permit a case once closed by either
or both sides to be re-opened for the introduction of
testimony previously omitted, if convinced that such
testimony is so material that its omission would leave
the investigation incomplete. In all such cases both
parties must be present, and any testimony thus received
would be subject to cross-examination and rebuttal by
the party to whom it may be adverse.
PTNDING.
1. The finding of the court will be governed by the
evidence considered in connection with the plea. The
finding upon the charge should be consistent with that
upon the specification.
2. The accused may be found guilty of parts of the
specification, not guilty of the remainder, and then, if
the specification still supports the charge, guilty of the
charge.
3. If the evidence proves the commission of an offense
less in degree than that specified, yet kindred to it, the
court may except words of the specification, substitute
others instead, pronounce the guilt and innocence of the
substituted and excepted words, respectively, and then
find the accused not guilty of the charge but guilty of
the lesser kindred offense. Of this form of verdict the
most familiar is the finding of guilty of absence with-
out leave under a charge of desertion. In such a case,
in its finding of guilty upon the specification, the court
should in terms except the words "did desert," and sub-
stitute therefor the words "did absent himself without
44 PREVIOUS CONVICTIONS.
authority. " The finding upon the charge should regu-
larly be "not guilty, but guilty of absence without
leave. "^
4. Another legal and now common form of finding is
where an accused is charged with a specific offense, made
punishable by an Article of War, other than the 62d,
and the court is of the opinion that, while the material
allegations in the specification are proved, they do not
fully sustain the charge as laid, but do clearly establish
a breach of military discipline ; in this case the accused
may properly be found guilty of the specification and
not guilty of the charge, but guilty of ' ' conduct to the
prejudice of good order and military discipline." It
should be remembered, however, that the court can not
in its finding legally substitute the 62d Article of War
for any other, unless the proof fails to substantiate the
specification under the original charge. The reverse of
this form of finding has never been sanctioned. Thus
where a charge is laid under the general article, a find-
ing under any other article, or, where a charge is laid
under a specific article, a finding under any other spe-
cific article, would be wholly irregular.
5. In a case of virtual acquittal, to use the term
"guilty" is improper; the correct expression is, "find
the facts as charged, but attach no criminality thereto."
"Guilty" should be employed only when the accused
has been convicted of a crime deserving punishment.
PREVIOUS CONVICTIONS. 2
1. Whenever a soldier is convicted of an offense for
which a discretionary punishment is authorized, the
1 It is beyond the power of a reviewing officer to change a finding by his
own action. Thus where, in a case of desertion, the reviewing authority
approved "so much only of the finding of guilty of desertion as convicted
the accused of absence without leave," it was held that he thus substituted
a finding of his own for that of the court, and that his action was unau-
thorized.
2 By "previous conviction" is meant a conviction where the sentence
has been approved by competent authority. This refers to all trials except
where the post commander sits as a summary court, when no approval of
the sentence is re<iuired by law.
PUNISHMENT. 45
court will receive evidence of previous convictions, if
there be any; such evidence being limited, except in
the case of desertion, to previous convictions by courts-
martial' of an offense or offenses within one year pre-
ceding the arraignment and during the current enlist-
ment. General, regimental, and garrison courts-martial
will, after a finding of guilty, be opened for the purpose
of ascertaining whether there is such evidence and, if
so, of receiving it.^
2. Previous convictions by courts-martial must be
proved by the records of previous trials and convictions,
or by duly authenticated copies of such records, or by
duly authenticated copies of the orders promulgating
such trials. -^ The usual evidence of previous convictions
by summary court is the copy of a summary court
record furnished to company and other commanders, as
required by paragraph 1031, Army Regulations, or one
furnished for the purpose, and certified to be a true
copy by the commanding officer or adjutant.^
3. The previous convictions are not limited to those
for offenses similar to the one for which the accused is
on trial. The object is "to see if the prisoner is an old
offender, and therefore less entitled to leniency than if
on trial for his first offense. " This information might
not be fully obtained if evidence of previous convictions
of similar offenses only were laid before the court. It
has no bearing upon the question of guilt of the par-
ticular charge on trial, but only upon the amount and
kind of punishment to be awarded, and to this end it is
proper that all previous convictions should be known.
PUNISHMENT.
1. Punishment, under the Articles of War, is either
fixed or is left to the discretion of a court-martial. If
1 The introduction of evidence of convictions by civil courts is not
authorized.
2Exec-utive order of March 12, 1901, page 55, par. 2, post.
2 Id., page 55, par. 1, post.
4 Par. 1038, A. R.
46 PUNISHMENT.
the punishment is prescribed in the article violated, any
other punishment than that prescribed is illegal. Before
pronouncing sentence, the court should, therefore, in
case of any uncertainty, examine the article violated to
see what punishment may be legally awarded, and in
awarding punishment it should be remembered that
the proper amount of punishment is the least by which
discipline can be efficiently maintained.
2. For officers, the legal punishments by courts-
martial, depending on the nature of the offense, are
death, dismissal, suspension from rank, command, or
duty, with or without loss of pay or part of pay, loss of
relative rank or files, imprisonment, fine or forfeiture
of pay, and reprimand.
3. For soldiers, the legal punishments, depending on
the character of the offense and the jurisdiction of the
court, are, death, confinement, confinement on bread-
and-water diet, solitary confinement, hard labor, ball
and chain, forfeiture of pay and allowances, dishonor-
able discharge from service,^ and reprimand; for non-
commissioned officers, reduction to the ranks also f and
for ' ' candidates for promotion, " deprivation of all rights
and privileges arising from a certificate of eligibility.^
4. ' ' No person in the military service shall be pun-
ished by flogging, or by branding, marking, or tattooing
on the body,"*
5. Military prisoners will not be punished by being
required to carry a heavy log. Some other punishment
can be found equally effective and not open to the
objections urged against this method.
6. Punishment by ball and chain will be imposed only
in extreme cases. ^
lA dislionorable discharge is an entire expulsion from the Army and
covers all unexpired enlistments.
2 In regard to sergeants of the post, noncommissioned staff, and hospital
stewards, see page 57, post.
3 Act of July 30, 1892; see G. 0. 79, A. G. 0., 1892.
4 98th A. W.
6 See page 65, par. 3, post.
PUNISHMENT. 47
7. "Sentences imposing tours of guard duty are for-
oidden." '
8. Solitary confinement, or confinement on bread-and-
water diet, shall not exceed fourteen days at a time, nor
be again enforced until a period of fourteen days has
elapsed. Nor shall such confinement exceed eighty-four
days in any one year.^
9. A court-martial can direct a forfeiture only in favor
of the United States, and can not assign the pay of a
soldier to any other person ; nor can a soldier be required
to receipt for money paid without his consent.
10. " If a soldier be brought to trial under a charge
of desertion and acquitted, or convicted of absence-
without -leave only, or if the sentence be disapproved by
proper authority, any amount paid as a reward for his
arrest will not be stopped against his pay unless, in case
of conviction of absence- without-leave, the sentence of
the court shall so direct. " ^
11. "No person in the military service shall, under
the sentence of a court-martial, be punished by confine-
ment in a penitentiary, unless the offense of which he
may be convicted would, by some statute of the United
States, or by some statute of the State, Territory, or Dis-
trict in which such offense may be committed, or by
the common law, as the same exists in such State,
Territory, or District, subject such convict to such
punishment."^
12. The 97th Article of War only limits the discre-
tion of the court as "to imprisonment in the peniten-
tiary, and it has been nowhere provided that the pun-
ishment may not in other respects be greater than the
civil courts could inflict."^ Notwithstanding this, a
1 Par. 1040, A. R.
2 See page fi7, post.
3 Par. 138, A. R. This paragraph is not affected by the order of the Presi-
dent prescribing the limit of punishment. See page 50, post, note.
4 97th A. W.
^ Ex parte Mason, 105 U. S., 696. See G. 0. 61, A. G. 0., 1882.
48 LIMITS OF PUNISHMENT.
court-maitial should properly consult the statute gov-
erning the civil courts, in order to determine a reason-
able measure of punishment for the offense.
13. The most common offenses punishable by confine-
ment in a penitentiary are, those mentioned in Article
60, and robbery, grand larceny, embezzlement, forgery,
burglary, arson, mayhem, manslaughter, assault with
intent to kill, rape, or assault with intent to commit
rape. Any of these offenses, when committed to the
prejudice of good order and military discipline, either
in time of peace or war, are punishable as stated.
MAXIMUM lilMITS OF PUNISHMENT.
The act of September 27, 1890, provides: "That
whenever by any of the Articles of War for the govern-
ment of the Army the punishment on conviction of any
military offense is left to the discretion of the court-
martial, the punishment therefor shall not, in time of
peace, be in excess of a limit which the President may
prescribe. " The last order of the President prescribing
limits of punishment is as follows :
Executive Mansion,
March 12, 1001.
The Executive order, dated March 30, 1898, establish-
ing limits of punishment for enlisted men of the Army,
under an act of Congress approved September 27, 1890,
and which was published in General Orders, No. 16,
1898, Headquarters of the Army, is amended so as to
prescribe as follows :
Article I.
In all cases of desertion the sentence may include dis^
honorable discharge and forfeiture of pay and allowances.
Subject to the modifications authorized in Section 3
of this article the limit of the term of confinement (at
hard labor) for desertion shall be as follows :
Section 1. In case of surrender —
(a) When the deserter surrenders himself after an
absence of not more than thirty days, one year.
LIMITS OF PUNISHMENT.
49
(b) When the surrender is made after an absence of
more than thirty days, eighteen months.
Sec. 2. In case of apprehension—
(a) When at the time of desertion the deserter shall
not have been more than six months in the service,
eighteen months.
(b) When he shall have been more than six months
in the service, two and one-half years.
Sec. 3, The foregoing limitations are subject to mod-
ification under the following conditions :
(a) The punishment of a deserter may be increased
by one year of confinement at hard labor in considera-
tion of each previous conviction of desertion.
(b) The punishment for desertion when joined in by
two or more soldiers in the execution of a conspiracy,
or for desertion in the presence of an outbreak of
Indians or of any unlawful assemblage which the troops
may be opposing, shall not exceed dishonorable dis-
charge, forfeiture of all pay and allowances, and con-
finement at hard labor for five years.
Article II.
Except as herein otherwise indicated, punishments
shall not exceed the limits prescribed in the following
table :
Offenses.
Limits of punishment.
Under 17th Article of
War.
Selling horse or arms, or both .
Selling accouterments.
Selling clothing
Losing or spoiling horse or
arms through neglect.
Losing or spoiling accouter-
ments or clothing through
neglect.
12915 4
Dishonorable discharge, forfeiture of all pay
and allowances, and confinement at hard
labor for three yeare.
Four months' confinement at hard labor and
forfeiture of flO per month for the same
period; for noncommissioned oflicer, reduc-
tion in addition thereto.
Two months' confinement at hard labor and
forfeiture of |10 per month for the same
period ; for noncommissioned oflicer, reduc-
tion in addition thereto.
Four months confinement at hard labor and
forfeiture of $10 per moutli for the same
period ; for noncommissioned oflicer, reduc-
tion in addition thereto.
Twenty days' confinement at hard labor and
forfeiture of f6 ; for noncommissioned ofli-
cer, reduction in addition thereto.
50
LIMITS OF PUNISHMENT.
Offenses.
Limits of punishment.
Under 20th Article of
War.
Behaving himself with dis-
respect to his commanding
officer.
Under 24th Article of
War. '
Befasal to obey or using
violence to officer or non-
commissioned officer while
quelling quarrels or dis-
orders.
Under 32d Article of War.
Absence without leave ' —
One hour or less
For more than one to six
hours, inclusive.
For more than six to
twelve hours, inclusive
For more than twelve
to twenty-four hours,
inclusive.
For more than twenty-
four to forty-eight
hours, inclusive.
For more than two to
ten days, inclusive.
For more than ten to
thirty days, inclusive.
For more than thirty to
ninety days, inclusive.
For more than ninety
days.
Six months' confinement at hard labor and
forfeiture of $10 per mouth for the same
period ; for noncommissioned officer, reduc-
tion in addition thereto.
Dishonorable discharge, with forfeiture of all
pay and allowances and confinement at hard
labor for two years.
Forfeiture of $1 ; corporal, $2 ; sergeant, $3 ;
1st sergeant or noncommissioned officer of
higher grade, $4.
Forfeiture of $2 ; corporal, $3 ; sergeant, $4 ;
Ist sergeant or noncommissioned officer of
higher grade, $5.
Forfeiture of $3 ; corporal, $4 ; sergeant, $6 ;
1st sergeant or noncommissioned officer of
higher grade, $1.
Forfeiture of $5 ; corporal, $6 ; sergeant, $7 ;
1st sergeant or noncommissioned officer of
higher grade, $10.
Forfeiture of $G and five days' confinement
at hard labor. For corporal, forfeiture of
$8 ; sergeant, $10 ; 1st sergeant or noncom-
missioned officer of higher grade, $12 ; or,
for all noncommissioned officers, reduction.
Forfeiture of $10 and ten days' confinement
at hard labor ; for noncommissioned officer,
reduction in addition thereto.
Forfeiture of $30 and one month's confinement
at hard labor ; for noncommissioned officer,
reduction in addition thereto.
Three months' confinement at hard labor and
forfeiture of $10 per month for same period ;
for noncommissioned officer, reduction in
addition thereto.
Dishonorable discharge and forfeiture of all
pay and allowances and six mouths' con-
finement at hard labor.
> Upon trial for desertion and conviction of absence without leave only,
the court may, in addition to the limit prescribed for such absence, award
a stoppage of the amount paid fur apprehension, and for transportation of
himself and guard.
LIMITS OF PUNISHMENT.
51
Limits of punishment.
TJndee33d Article of War.
Failure to repair at the time
fixed, to the place ap-
pointed, etc. —
For reveille or retreat
roll-call and 11 p. m.
inspection.
For assembly of guard
detail.
For guard mounting fby
musician detailed lor
guard).
For guard mounting (by
musician not detailed
for guard).
For assembly of fatigue
detail.
For dress parade
For inspection and mus-
ter, weekly or monthly
inspection.
For target practice
For drill
For stable duty
For athletic exercises __.
Under 38tii Article of
War.
Found drunk-
On guard.
On duty as head cook
On extra or special duty_
At formation of company
for drill or on drill.
At target practice
At formation of company
for dress parade or on
dress parade.
At reveille or retreat
roll-call.
At inspection and muster,
weekly or monthly in-
spection.
At inspection of company
guard detail or at
guard mounting.
At stable duty
On fatigue
Forfeiture of $1 ; corjioral, $2 ; sergeant, $3
1st sergeant, $4.
Forfeiture of S5 ; corporal, $8 ; sergeant, $10.
■ Forfeiture of $2 ; corporal, $3 ; sergeant, §5.
Six months' confinement at hard labor and
forfeiture of $10 per month for the same
period ; for noncommissioned oflicer, reduc-
tion in addition thereto.
Forfeiture of $20.
1
Forfeiture of $12 ; for noncommissioned
qificer, reduction and forfeiture of $20,
52
LIMITS OF PUNISHMENT.
Offenses.
Limits of puDishment.
Under 40th Article of
War.
Quitting guard
Under SIst Article of
War.
Persuading soldiers to desert.
Under 60th Article of
War.
Under 62d Article of War.
Manslaughter .
Assault, with intent to kill .
Burglary
Forgery
Perjury
False swearing
Robbery
Larceny or embezzlement of
property ' —
Of the value of more
than glOO.
Of the value of $100 or
less and more than $50.
Six months' confinement at hard labor and
forfeiture of $10 per month for the same
period ; for noncommissioned officer, reduc-
tion in addition thereto.
Dishonorable discharge, forfeiture of all pay
and allowances, and one year's confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and four years' confine-
ment at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and ten years' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and ten years' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and five years' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and four j'ears' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and four years' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and two years' confinement
' at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and six years' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and four years' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and three years' confine-
ment at hard labor.
1 In specifications to charges of larceny or embezzlement the value of the
property shall be stated.
LIMITS OB" PUNISHMENT.
53
Offenses.
Limits of punishment.
Under 62d Article of War
—Cont'd.
Larceny or embezzlement of
property! — Continued.
Of the vahieof$50orles8
and more than $20.
Of the value of $20 or less
Fraudulent enlietment, pro-
cured by false representa-
tion or concealment of a
fact in regard to a prior
enlistment or discharge,
or in regard to conviction
of a civil or military crime.
Fraudulent enlistment, other
cases of.
Disobedience of orders, in-
volving willful defiance of
the authority of a non-
commissioned officer in the
execution of his office.
Using threatening or insult-
ing language or behaving
in an insubordinate man-
ner to a noncommissioned
officer while in the execu-
tion of his office.
Absence from fatigue duty _.
Absence from extra or special
duty.
Absence from duty as com-
pany, general mess, or
hospital head cook.
Introducing liquor into post,
camp, or quarters in viola-
tion of standing orders.
Drunkenness at post or in
quarters.
Dishonorable discharge, forfeiture of all pay
and allowances, and two years' confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and one year's confinement
at hard labor.
Dishonorable discharge, forfeiture of all pay
and allowances, and confinement at hard
labor for one year.
Dishonorable discharge, forfeiture of all pay
and allowances, and confinement at hard
labor for six months.
Six months' confinement at hard labor and
forfeiture of $10 per month for the same
period ; for noncommissioned officer, re-
duction in addition thereto.
One month's confinement at hard labor and
forfeiture of $10 ; for noncommissioned
officer, reduction in addition thereto.
Forfeiture of $4 ; corporal, $5 ; sergeant, $6.
Forfeiture of $4 ; corpc^l, $5 ; sergeant, $6.
Forfeiture of $10.
Forfeiture of $3 ; for noncommissioned officer,
reduction and forfeiture of $5.
Forfeiture of $3 ; for noncommissioned officer,
reduction and forfeiture of $5.
1 1n specifications to charges of larceny or embezzlement the value of the
property shall be stated.
.54
LIMITS OF PUNISHMENT.
Offenses.
Limits of punishment.
Under 62d Article of War
—Cont'd.
Drunkenness and disorderly
conduct, causing the
offender's arrest and con-
viction by civil authorities
at a place within ten miles
of his station.
Noisy or disorderly conduct
in quarters.
Drunk and disorderly in post
or quarters.
Abuse by noncommissioned
officer of his authority
over an inferior.
Noncommissioned officer en-
couraging gambling.
Noncommissioned officer
making false report.
Sentinel allowing a prisoner
under his charge to escape
through neglect. '
Sentinel willfully suffering
prisoner under his charge
to escape.
Sentinel allowing a prisoner
under his charge to obtain
liquor.
Sentinel or member of guard
drinking liquor with
prisoners.
Disrespect or affront to a
sentinel.
Resisting or disobeying senti-
nel in lawful execution of
his duty.
Lewd or indecent exposure
of person.
Committing nuisance in or
about quarters.
Breach of arrest in quarters _
Forfeiture of $10 and seven days' confinement
at hard labor ; for noncommissioned officer,
reduction and forfeiture of $12.
Forfeiture of ^ ; corporal, $1 ; sergeant, $10.
Forfeiture of $7; for noncommissioned officer,
reduction and forfeiture of $10.
Reduction, three months' confinement at
hard labor, and forfeiture of $10 per month
for the same period.
Reduction and forfeiture of $5.
Reduction, forfeiture of $8, and ten days'
confinement at hard labor.
Six months' confinement at hard labor and
forfeiture of $10 per month for the same
period.
Dishonorable discharge, forfeiture of all pay
and allowances, and one year's confinement
at hard labor.
Two months' confinement at hard labor and
forfeiture of $10 per month for the same
period.
Two months' confinement at hard labor and
forfeiture of $10 per month for the same
period.
Two months' confinement at hard labor and
forfeiture of $10 per month for the same
period ; for noncommissioned oflicer, re-
duction ill addition thereto.
Six months' confinement at hard labor and
forfeiture of $10 per month for the same
period ; for noncommissioned officer, re-
duction in addition thereto.
Three months' confinement at hard labor
and forfeiture of $10 per month for the
same period ; for noncommissioned officer,
reduction in addition thereto.
One month's confinement at hard labor and
forfeiture of $10 ; for noncommissioned
officer, reduction in addition thereto.
LIMITS OF PUNISHMENT. 55
Article III.
The introduction and use of evidence of previous con-
victions is subject to the following regulations:
1. Such evidence shall be limited to previous convic-
tions by courts-martial of an offense or offenses within
one year preceding the arraignment and during the
current enlistment. These convictions must be proved
by the records of previous trials and convictions, or by
duly authenticated copies of such records, or by duly
authenticated copies of the orders promulgating such
trials and convictions. Charges forwarded to the
authority competent to order a general court-martial,
or submitted to a summary, garrison, or regimental
court-martial, must be accompanied by the proper evi-
dence of previous convictions.
2. Whenever a soldier is convicted of an offense for
which a discretionary punishment is authorized, the
court will receive evidence of previous convictions, if
there be any. G-eneral, regimental, and garrison courts-
martial will, after a finding of guilty, be opened for
the purpose of ascertaining whether there is such evi-
dence, and, if so, of receiving it.
3. Previous convictions in connection with inferior
court offenses. — When a soldier is convicted of an
offense the punishment for which under Article II of
this order or the custom of the service does not exceed
one month's confinement at hard labor and forfeiture
of one month's pay, the punishment so authorized may,
upon proof of four or less previous convictions within
the prescribed period, be increased one-half for each of
such previous convictions ; provided that upon proof of
five or more such previous convictions, the limit of
punishment shall be dishonorable discharge, forfeiture
of all pay and allowances, and confinement at hard
labor for three months.
4. Previous convictions in connection ivith general
court-martial offenses. — When the conviction is for an
offense punishable under Article II of this order or the
custom of the service with a greater punishment than
one month's confinement at hard labor and forfeiture
of one month's pay, such punishment, if it includes
dishonorable discharge, shall not be increased by reason
of previous convictions, but evidence thereof, whatever
their number within the prescribed period, will be sub-
mitted to the court to aid it in determining upon the
proper measure of punishment, subject to the limit
already authorized.
56 LIMITS OF PUNISHMENT.
If the authorized punishment under Article II of this
order or the custom of the service exceeds one month's
confinement at hard labor and forfeiture of one month's
pay, and does not include dishonorable discharge, such
punishment shall not be increased on account of pre-
vious convictions if less than five are considered, but if
there be five or more, the court may adjudge dishonor-
able discharge and forfeiture of all pay and allowances
with the authorized confinement, and when this con-
finement is less than three months it may be increased
to three months.
5. On a conviction of desertion, evidence of convic-
tions of previous desertions may also be introduced,
irrespective of the period which may have elapsed since
such conviction or convictions.
6. When a noncommissioned officer is convicted of
an offense not punishable with reduction, he may, upon
proof of one previous conviction within the prescribed
period, be sentenced to reduction in addition to the
punishment ali'eady authorized.
7. First-class privates may be reduced to second-class
privates in all cases where, for like offenses on the part
of noncommissioned officers, their reduction in grade is
now authorized.
Article IV.
When a soldier shall, on one arraignment, be con-
victed of two or more offenses, none of which is pun-
ishable under Article II of this order or the custom of
the service with dishonorable discharge, but the aggre-
gate term of confinement for which may exceed six
months, dishonorable discharge with forfeiture of pay
and allowances may be awarded in addition to the
authorized confinement.
Article V.
If, in any case where the limit of punishment is dis-
honorable discharge, forfeiture of all pay and allow-
ances, and confinement at hard labor for a stated
number of months, dishonorable discharge be not
adjudged, the limit of forfeiture shall be all pay due
and to become due during the prescribed limit of con-
finement.
Article VI.
This order prescribes the maximum limit of punish-
ment for the offenses named, and this limit is intended
LIMITS OF PUNISHMENT, 67
for those cases in which the severest punishment should
be awarded. In other cases the punishment should be
graded down according to the extenuating circum-
stances. Offenses not herein provided for remain pun-
ishable as authorized by the Articles of War and the
custom of the service.
Article VII.
Summary courts are subject to the restrictions named
in the 83d Article of War. Soldiers against whom
charges may be preferred for trial by summary court
shall not be confined in the guardhouse, but shall be
placed in arrest in quarters, before and during trial and
while awaiting sentence, except when in particular
cases restraint may be necessary.
Article VIII.
Substitutions for punishment named in Article II of
this order are authorized at the discretion of the courts
at the following rates :
Two days' confinement at hard labor for one dollar
forfeiture, or the reverse; one day's solitary confine-
ment on bread and water diet for two days' confinement
at hard labor or for one dollar forfeiture : provided that
a noncommissioned officer not sentenced to reduction
shall not be subject to confinement; and provided that
solitary confinement shall not exceed fourteen days at
one time, nor be repeated until fourteen days have
elapsed, and shall not exceed eighty -four days in one
year.
Article IX.
Noncommissioned officers above the rank of corporal
shall not, if they object thereto, be brought to trial be-
fore regimental, garrison, or summary courts-martial,
without the authority of the officer competent to order
their trial by general court-martial ; nor shall sergeants
of the post noncommissioned staff or hospital stewards
be reduced, but they may be dishonorably discharged
whenever reduction is included in the limit of punish-
ment.
WILLIAM Mckinley.
58 SENTENCE.
SENTENCE.
1. When in any case the punishment is, by the Arti-
cles of War, left to the discretion of the court-martial,
the court will, before proceeding to award the punish-
ment, ascertain whether a limit has been fixed by the
foregoing executive order. ^ Those members desiring to
propose a sentence usually write it on a slip of paper
and hand it to the president. The president reads the
proposed sentences to the court and the members vote
on them in order, beginning with the lightest, until a
majority agree upon a sentence. In a case where a
punishment is fixed, the members vote upon a sentence
awarding this punishment. Upon a death sentence
two -thirds of the members must concur (the record so
explicitly stating) , and no person can be sentenced to
death except in cases expressly mentioned in the Arti-
cles of War, or in section 1343, Revised Statutes, as thus
punishable,"^
3. A general court-martial may sentence a soldier to
confinement in a penitentiary for any offense which may
be thus i^unished "by some statute of the United States,
or by some statute of the State, Territory, or District in
which such offense may be committed, or by the com-
mon law, as the same exists in such State, Territory, or
District."^ When, therefore, the sentence of such a
court-martial prescribes imprisonment, the court will
state therein whether the prisoner shall be confined "in
a penitentiary* or in some place under military juris-
i"When a sentence of confinement or forfeiture is in excess of the
legal limit, the part within the limit is legal and may be executed."
(Par. 1044, A. K.)
2 96th A. W.
» 97th id.
•* Unless the laws of the State, Territory, etc., in which the court is con-
vened are at hand, it is impossible for the court to determine in all cases
whether or not, under the 97th Article of War, the offender is punishable
by penitentiary confinement. Therefore, in case of any doubt, the words
"in such place as the reviewing authority may direct," will be used in the
sentence.
RECORD OF PROCEEDINGS. 59
diction, being guided in its determination by the 97th
Article of War. " *
4. * 'When a sentence imposes forfeiture of pay, or of a
stated portion thereof, for a certain number of months,
it stops for each of those months the amount stated.
Thus : ' Ten dollars of monthly pay for one year ' would
be a stoppage of |120. When the sentence is silent as
to the date of commencement of forfeiture of pay, the
forfeiture will begin at the date of promulgation of the
sentence in orders, and will not apply to pay which
accrued previous to that date."^
5. "Notwithstanding a sentence contemplates pay-
ment of a stated sum to a soldier upon his release from
confinement, it can not be made unless there is a suffi-
cient balance to his credit after all authorized stoppages
are .deducted. "2
6. "A sentence adjudging a dishonorable discharge,
to take effect at such period during a term of confine-
ment as may be designated by the reviewing authority,
is illegal." ^
RECORD OF PROCEEDINGS.
1. Every court-martial will keep an accurate record^
of its proceedings. The record in each case will be
complete in itself, and will contain a copy of the order
appointing the court. It will be authenticated by the
signatures of the president and judge-advocate, the
latter affixing his signature to each day's proceedings.
Whenever, by reason of the death or disability of the
judge-advocate occurring after the court has decided
on the sentence, the record can not be authenticated by
his signature it must show that it has been formerly
approved by the court and must be authenticated by
the signature of the president. ^ The record must show
1 Par. 1041, A. R. « Id., 1052. 3 M, 1054. < Id., 1060.
6 "When records of trial by general courts-martial are written on the
typewriter, the copyable ribbon will bo used when practicable." (Par.
1056, A. R.)
6 Par. 1055, A. R.
60 RECORD OF 1>R0CEEDINGS.
that the court was organized as the law requires^ that
the prisoner was asked if he wished to object to any
member and his answer to such question, and that the
members of the court and the judge-advocate were duly
sworn.
2. The reading of previous proceedings and of testi-
mony for approval will be dispensed with, unless for
special reason considered necessary by the court, or a
witness desires to have certain testimony read for cor-
rection. '
3. All orders modifying the detail of the court and
issued after its original organization must be incorpo-
rated in the record. The record should also note the
fact of a new member taking his seat, or a new judge -
advocate commencing to officiate, according to orders,
on a certain day. (But, see page 28, par. 4, ante.)
4. The entire proceedings will be spread upon the
record ; all orders and rulings of the court ; all motions,
propositions, objections, arguments, statements, etc.,
of the judge-advocate or the accused; the testimony of
each witness, as nearly as possible in his own language ;
in short, every feature of the proceedings material to a
complete history of the case and to a correct under-
standing of every jDoint of the same by the reviewing
authority will be recorded at length. Testimony taken
before regimental or garrison courts-martial will not be
reduced to writing."^
5. Although, since the passage of the act of Congress
of July 27, 1892, "to amend the Articles of War, etc.,"
it is desirable that the record of a court-martial should
show that when it sat in closed session the judge-advo-
cate withdrew, it will not vitiate the proceedings if
this is not expressly stated. When the record shows
that the court was closed, the presumption is that it
was closed in accordance with the requirements of law.
6. The "statement of service" referred to on page 19,
paragraph 3, ante, will not be introduced in evidence
' Cir. No. 27, A. G. O.. 1897. 2par. 1055, A. R.
REVIEWING AUTHORITY. 61
nor maae a part of the record of the trial, but will be
returned to the convening authority with the record. ^
7. A recommendation to clemency will not be em-
braced in the body of the sentence ; but will be appended
to the record after any exhibits referred to in the pro-
ceedings. Only those members who concur in a recom-
mendation should sign it.
REVISION OF RECORD.'
1. "When the record of a court exhibits error in
preparation, or seemingly erroneous conclusions, the
reviewing authority may reconvene the court for a
reconsideration of its action, pointing out defects.
Should the court concur in the views submitted, it
will proceed by amendment to correct its errors, and
may modify or completely change its findings. A
reopening of the case, by calling or recalling witnesses,
is illegal. "2
2. An amendment can only be made by the court
when duly reconvened for the purpose, and when made
must be the act of the court as sucli^ A correction
made by the president or other member, or by the
judge -advocate independently of the court, and by
means of an erasure or otherwise, is unauthorized. If
omissions in the record are to be supplied, the page and
line on which they occur will be stated and the correc-
tions given in full. The original record will not be
interlined nor altered in any way.
REVIEWING AUTHORITY.
1. "No sentence of a court-martial shall be carried
into execution until the same shall have been approved
by the officer ordering the court, or by the officer com-
manding for the time being. " ^
1 Par. 1028, A. R.
2 For form for revision see page 148, post.
3 Par. 1059, A. R.
4 0pin. Atty. Genl.; see G. 0. 21, A. G. 0., 1900.
B104th A. W.; see G. 0. 57, A. G. 0., 1892, and par. 213, A. R.
62 REVIEWING AUTHORITY.
2. The officer having authority to confirm the sen-
tence of a court-martial will state at the end of the
proceedings in each case his decisions and orders. '
3. All sentences of courts-martial may be confirmed
and carried into execution by the officer ordering the
court, or by the officer commanding for the time being,
where confirmation by the President, or by the com-
manding general in the field, or the commander of the
department, is not required by the Articles of War.^
In time of peace, sentences directing the dismissal of
an officer or inflicting the punishment of death require
confirmation by the President. ^ Proceedings involving
either dismissal or death will therefore (except in time
of war, in cases mentioned in the 105th and 107th Arti-
cles of War) , be forwarded by the convening authority
direct to the Judge -Advocate General for the action of
the President.
4. A military commander can not delegate to an infe-
rior or other officer his function as reviewing authority
as conferred by the 104th and 109th Articles of War.
Nor can he authorize a staff or other officer to subscribe
for him his decision and orders on the proceedings.
5. Every officer authorized to order a court-martial
has power to pardon or mitigate any punishment ad-
judged by it,-* except that of death, ^ or the dismissal of
an officer.*^
6. "The power to pardon or mitigate punishment
imposed by a court-martial, vested in the authority
which confirms the proceedings or the corresponding
authority under whose jurisdiction the sentence is being
executed, extends only to unexecuted portions of a sen-
tence. The fact that a soldier has been dishonorably
discharged through his sentence does not affect this
power. An application for clemency in case of a gen-
eral prisoner sentenced to confinement in a penitentiary
will be forwarded to the Secretary of War for the action
1 Tar. 1057, A. K.
2 lOOth A. W. For requirement of regtibitious as to " Officer comiuandiuij;
for the time being," see Par. 213, A. R.
8 106th, ibeth, and 108th id. * 1 12th id. » 105th id. « 106th id.
REVIEWING AUTHORITY. 63
of the President. The power to comnmte sentences
imposed by military tribunals, not being vested in
military commanders, can only be exercised by the
President. " ^
7. "Any officer who has authority to carry into exe-
cution the sentence of death, or of dismissal of an
officer, may suspend the same until the pleasure of the
President shall be known ; and, in such case, he shall
immediately transmit to the President a copy of the
order of suspension, together with a copy of the pro-
ceedings of the court. "■^
8. While a reviewing authority may remit or miti-
gate a sentence, he can not change it so as to impose a
punishment of a different nature; thus, he can not
change a sentence of dishonorable discharge awarded
an enlisted man to confinement at hard labor ; ^ but a
legal sentence of dishonorable discharge, forfeiture of
all pay and allowances due, and confinement at hard
labor for a definite period may be mitigated by the
authority ai)proving such sentence to confinement at
hard labor and forfeiture of all pay and allowances for
a period not to exceed the period of confinement awarded
in the sentence.-*
9. ' ' The authority which has designated the place of
confinement, or higher authority, may change the place
of confinement of any prisoner under the jurisdiction of
such authority;"^ but "when the court has sentenced a
prisoner to confinement at a post, no power is compe-
tent to increase the punishment by designating a peni-
tentiary as the place of confinement."" When a peni-
tentiary has been erroneously designated the reviewing
1 Par. 1017, A. R.
•muh A. w.
^As to authority of reviewiug officer to change finding, see page 44,
note I, ante.
4Ci.r. 48, A. G. 0., 1900.
fi Par. 1047, A. R.
* Id., 1043. A piinishment of confinement in a penitentiary, when legal,
may be mitigated to confinement at a military post.
64 REVIEWING AUTHORITY.
authority may disapprove it and designate a proper
place. ^
10. When general courts-martial have properly sen-
tenced soldiers to confinement in a penitentiary,'^ "de-
partment commanders will designate the United States
Penitentiary at Fort Leavenworth, Kans., as the place
of execution of such sentences in cases in which the
term of confinement imposed is more than one year. If
any State or Territory within a military department
has made provision by law for the confinement of such
prisoners in its penitentiaries, the department com-
mander, with the approval of the Secretary of War,
may designate one as the place of execution of sentence. '"-^
11. "When a sentence of confinement or forfeiture is
in excess of the legal limit, the part within the limit is
legal and may be executed." "*
12. " The time at which a dishonorable discharge is
to take effect, as fixed by a sentence, can not be post-
poned by the reviewing officer. " ^
13. "A sentence to confinement, with or without
forfeiture of pay, can not become operative prior to the
date of confirmation. If it be proper to take into con-
sideration the length of confinement to which the pris-
oner has been subjected previous to such confirmation,
it may be done by mitigation of sentence. " ^
14. "An order remitting a forfeiture of pay operates
only on the pay to become due subsequent to the date
of the order."'
15. "The order promulgating the proceedings of a
court and the action of the reviewing authority will,
when practicable, be of the same date. When this is
not practicable, the order will give the date of the
action of the reviewing authority as the date of the
beginning of the sentence. This does not apply to sen-
tences of forfeiture of all pay and allowances. A soldier
awaiting result of trial will not be paid before the
result is known. " ^
1 Par. 1041, A. R.
4 Id., 1044.
'Id., 1053.
2 Seu page 47, par. 11, ante.
8 Id., 1051.
8 Id., 1046.
8 Par. 1042, A. R.
6 Id., 1048.
CONFINEMENT AFTER TRIAL. 65
<»
16. Proceedings of general courts-martial in cases of
officers and in important cases of enlisted men will be
published in general orders. Unimportant cases of
enlisted men will be published in special orders. ^
CON^FII^EMENT AFTER TRIAL.
1. "Enlisted men * * * who have been tried will,
I>rior to the promulgation of the result, be designated
as ' awaiting result of trial ;' enlisted men serving sen-
tences of confinement, not involving dishonorable dis-
charge, will be designated 'garrison prisoners; those
sentenced to dishonorable discharge, and to terms of
confinement in penitentiaries or at military posts, will
be designated as 'general prisoners.' " ^
2. Prisoners undergoing sentence of general court-
martial, and those confined for serious offenses will, if
practicable, be kept apart from those confined by sen-
tence of an inferior court, or for minor offenses. Gen-
eral prisoners will not be confined with other prisoners
except in case of necessity.^
. 8. " Prisoners will not be placed in irons except under
sentence of a court-martial, or in the extraordinary case
of a prisoner who, in the judgment of the commanding
officer, is a desperate or dangerous character, in which
case a report of action and the circumstances will be
immediately made to the department commander. A
prisoner may be shackeled or handcuffed while being
transported from one post to another, or from a post to
a penitentiary when, in the judgment of the officer in
charge, the escape of the prisoner can not otherwise be
prevented." 4
4. "Prisoners will be forwarded from places of trial
to posts at which they are sentenced to serve confine-
ment only on orders of department commanders or
^ For form for special order, see page 168, post.
2 Par 10()4, A. R.
3 rd., 1008. For special rules relating to prisoners, see G. 0. 55, A. G. 0.
1895.
* Id., 1010.
12915 5
66 CONFINEMENT AFTER TRIAL.
higher authority. The strength of guards to accom-
pany them will be limited to the necessities bt safe
delivery. Orders detailing guards in charge of military
prisoners sent to the United States Penitentiary at Fort
Leavenworth, Kans. , will provide for the return journey
of the guard and for commutation of rations, when such
commutation is necessary. The commanding officer of
a post from which a prisoner is transferred will send,
under seal, to the commanding officer of the post where
the sentence of confinement is to be executed the fol-
lowing papers in his case, viz : Discharge papers, if dis-
charged, descriptive list, orders promulgating and modi-
fying sentences, copy of charges and specifications upon
which convicted, statement of conduct while under
sentence to date of transfer, and a list of clothing in
possession of the prisoner when forwarded. " ^
5, "All serviceable clothing which belongs to a
prisoner, and his blankets, will accompany him to the
post designated for his confinement, and will be fully
itemized on the clothing list mentioned in the preced-
ing paragraph. The guard in charge of the prisoner
during transfer will be furnished with a duplicate of
this list and will be held responsible for the delivery of
all articles itemized therein, with the prisoner. At
least one serviceable woolen blanket will be sent with
every such prisoner so transferred. " '■*
6. "The personal effects of military prisoners who
have escaped from confinement, except such as possess
some special value as keepsakes, may be disposed of bj^
sale as in the case of effects of deceased soldiers, and
the ijroceeds thereof, together with any money left by
the prisoner in the hands of the company commander,
be turned over to a paymaster, who should account for
the same in the manner provided for paymaster's col-
lections. The officer will take the paymaster's receipt
for the amount paid him and forward the same to the
Auditor for the War Department."^
1 Par. 1012, A. R. « Id., 1013. » Id., 1014
CONFINEMENT AFTER TRIAL. 67
7. ' ' Prisoners will be allowed, in abatement of their
terms of confinement, five days for each period of
twenty -five days during the whole of which their con-
duct has been good ; but abatements thus earned may
be forfeited, either in whole or in part, by subsequent
misconduct. Such forfeitures are determined by the
commanding officer of the post where a prisoner is
confined. " '
8. "When the date for the commencement of a term
of confinement imposed by sentence of a court-martial
is not expressly fixed by the sentence, the term of con-
finement begins on the date of the order promulgating
it. The sentence is continuous until the term expires,
except when the person sentenced is absent without
authority."^ The word da?/s in a sentence of confine-
ment, means periods of twenty-four hours, counting
from guard-mounting on the first day of the sentence.
9. "When soldiers awaiting result of trial or under-
going sentence commit offenses for which they are
tried, the second sentence will be executed upon the
expiration of the first. " ^
10. Where a soldier, while undergoing sentence of
confinement imposed without dishonorable discharge,
was tried for a further offense and sentenced to dis-
honorable discharge and confinement, the period of
confinement under his prior sentence will terminate
upon the date of his dishonorable discharge, leaving to
be executed only the confinement imposed by the second
sentence.
11. "A general prisoner, when released from confine-
ment at a post, will be carefully examined and a record
of all marks, scars, and physical peculiarities made by
a medical officer on the outline figure card used in the
examination of recruits, which the medical officer will
forward direct to the Surgeon General."-*
I Par. 1016, A. B. a Id., 1049.
a Id., 1046. 4 Id., 1015.
68 HABEAS CORPUS.
HABEAS CORPUS.
1. "Officers will make respectful returns, in writing,
to all writs of habeas corpus served on them. When
the writ is issued by a State court or judge, and the per-
son held by the army officer is a civilian who has been
apprehended under a warrant of attachment to be taken
before a court-martial to testify as a witness, the officer
will not produce the body, but will, by his return, set
forth fully the authority by which he holds the person,
and allege that the State authority is without jurisdic-
tion to issue the writ of habeas corpus, and ask to have
the same dismissed. He will also exhibit to the court
or officer issuing the writ of habeas corpus the warrant
of attachment and the subpoena (and the proof of the
service of the subpoena) on which the warrant of
attachment was based, and also a certified copy of the
order convening the court-martial before which he had
been commanded to take the person. " ^
2. "Should a writ of habeas corpus issued by a State
court or judge be served upon an Army officer command-
ing him to produce an enlisted man or general prisoner
and show cause for his detention, the officer will decline
to produce in court the body of the person named in the
wi-it, but will make respectful return'^ in writing to the
effect that the man is a duly enlisted soldier of the
United States or a general prisoner under sentence of
court-martial, as the case may be, and that the Supreme
Court of the United States has decided that a magis-
trate or court of a State has no jurisdiction in such a
case. " 3
3. A writ of habeas corpus issued by a United States
court or judge will be promptly obeyed. The person
alleged to be illegally restrained of his liberty will be
taken before the court from which the writ has issued
and a return* made setting forth the reasons for his
1 Par, 1073, A. R. » For form, see page 170, post. 3 Par. 1074, A. R.
4 For form, see page 168, post. For brief of authorities, wheu the writ is
applied for on the ground of minority, see page \l\,post.
DISPOSITION OF RECORDS. 69
restraint. The officer upon whom such a writ is served
will at once report by telegraph the fact of such service
direct to the Adjutant General of the Army and to the
commanding general of the department. ^
DISPOSITION OF RECORDS.
1. The Judge -Advocate General revises and is the
custodian of the records of the proceedings of all
general courts-martial. ^ The original records of pro-
ceedings, with the decisions and orders of the reviewing
authorities made thereon, and also the records of pro-
ceedings of all general courts which require confirma-
tion by the President but which have not been appointed
by him, will be forwarded direct to the Judge-Advocate
General. One copy of the order promulgating the
action of the court, and a copy of every subsequent
order affecting the ca^se, will be forwarded to the Judge-
Advocate General, with the record of each case. When
more than one case is embraced in a single order, a
sufficient number of copies will be forwarded to enable
one to be filed with each record. The proceedings of
all courts appointed by the President will be sent direct
to the Secretary of War. ^
2. "Applications of officers, enlisted men, and mili-
tary prisoners for copies of proceedings of general
courts-martial, to be furnished them under the 114th
Article of War, will, when received by post or other
commanders, be forwarded direct to the Judge- Advocate
General."'*
3. "Communications relating to jiroceedings of mili-
tary courts on file in the Judge-Advocate General's
department will be addressed and forwarded direct by
department commanders to the Judge-Advocate Gen-
eral. In routine matters, the Judge -Advocate General
and judge-advocates may correspond with each other
direct. "5
1 Par, 1075, A. R. 3 Par. 99:?, A. R. ^ zd., 996.
» Sec. 1199, R. S. ; par. 991, A. R. * Id., 995.
70 DISPOSITION OF RECORDS.
4. Judge-advocates of departments are the custodians
of the reports of cases tried by summary courts ^ and of
all proceedings of garrison or regimental courts-martial. ^
5. Post commanders will, on the last day of each
month, make a report to the department headquarters
of the number of cases determined by summary court
during the month, setting forth the offenses committed
and th i penalties awarded. ^ ' ' The complete proceed-
ings of a garrison or regimental court will be transmit-
ted, without delay, by the i)ost or regimental commander
to department headquarters. " ^
6. The reports of cases tried by summary courts and
records of other inferior courts will be filed in the office
of the judge-advocate at the headquarters of the depart-
ment commander in whose department the courts were
held, for two years, at the end of which time they may
be destroyed.^
' Act of June 18, 1898, establishing the summary court; see page 120, post.
2 Act of March 3, 1877.
3 Act of June 18, 1898, sec. 4, page 121, post.
4 Par. 1058, A. R.
6 Act of March 3, 1877.
INFERIOR COURTS-MARTIAL.
THE SUMMARY COTJRT.i
1. Composition, etc. — The summary court is com-
posed of one officer, designated by the commanding
officer of a garrison, fort, or other place, regiment or
corps, detached battalion or company, or other detach-
ment, for such place or command, or for each battalion
of a command. But the summary court may be ap-
pointed and the officer designated by superior authority
when by him deemed desirable.
2. When but one commissioned officer is present with
a command, he is a suiiimary court and finally deter-
mines the cases tried by him. In such case no order
appointing the court will be issued, but the officer will
enter on the record that he is the "only officer present
with the command." In all other cases the sentences
must, before they can be executed, be ai^proved by the
officer appointing the court or the officer commanding
for the time being.
3. The summary-court act does not give the accused
the right to object to trial by summary court and to
demand trial by another court, nor does it require that
when the trial officer is the accuser the case shall be
tried by another court. A summary court can not,
however, adjudge confinement and forfeiture in excess
of a period of one month, unless the accused shall before
trial consent in writing to trial by said court, but in
any case of refusal to so consent, the trial may be had
either by general, regimental, or garrison court-martial.
1 Established by act of Juno 18, 1898, and recognized by the 83d A. W.
See pages 120 aud 123, post.
(71)
72 THE SUMMARY COURT.
or by said summary court, but in case of trial by said
summary court without consent as aforesaid, the court
shall not adjudge continement or forfeiture of pay for
more than one month. '
4. But noncommissioned officers can not, if they object
thereto, be brought to trial before summary courts with-
out the authority of the officer competent to order their
trial by general court-martial, but shall, in such cases,
ba brought to trial before garrison, regimental, or gen-
eral courts-martial, as the case may be.-
5. Jurisdiction. — The summary court has jurisdiction
both in time of peace and of war. It has almost entirely
displaced the garrison and regimental courts-martial,
and has entirely superseded the field officer's court,
which has been abolished.
6. As regards persons, the summary court can not
legally try officers, cadets, or candidates for promotion.
As to noncommissioned officers, see paragraph 4, ante.
Over all other enlisted men and over general prisoners
the summary court has jurisdiction.
7. As regards time of trial, the jurisdiction of a sum-
mary court is not affected by the time when cases are
brought before it, the requirement of the law as to time
being directory only. The commanding officer, and not
the court, will determine when and what cases will be
brought before it. Delay in the trial of a soldier does
not invalidate the proceedings, but may be considered
by the court in awarding sentence. *
8. Power. — Summary courts have power to adminis-
ter oaths;"* to hear and determine cases; and, when
i83d A. W., as amended by act approved March 2, 1901, page 123, post.
2 Summary Court Act, page 121, poKl. See, also, page 57, ante.
3 Par. 1034, A. R.
* This refers to oaths of witnesses. The trial officer himself is not sworn.
The trial officers of summary courts, judge-advocates of courts-martial, and
judge-advocates of departments have power to administer oaths for purposes
of military justice and for other purposes of military administmtion. (See
.'ict of July 27, 1892.) A summary court is not empowered to issue process
of attachment to compel the attendance of a civilian witness.
THE SUMMARY COURT. 73
satisfied of the guilt of an accused party, to adjudge the
punishment to be inflicted. ^
9. Procedure. — The accused will be arraigned and
allowed to plead, according to court-martial practice.
When the accused pleads not guilty, witnesses will be
sworn and evidence received, the accused being per-
mitted to testify in his own behalf and make a state-
ment, but the evidence and statement will not be
recorded.
10. The summary court, as soon as trial is con-
cluded, will record its findings and sentence ^ in the
prescribed record and submit it to the reviewing
authority, who will enter his action thereon. ^ When
but one officer is present with a command, no approval
of the sentence is necessary. In time of peace the
summary court proceedings will be recorded in a book,
but in time of war the prescribed blanks will be suffi-
cient. No other records of the proceedings will be
kept, and the trials will not be published in orders.^
11. Previoas Convictions. — Charges submitted for
trial by a summary court will be accompanied by evi-
dence of all convictions of accused within the previous
twelve months and during the current enlistment,
which evidence will be furnished if practicable by the
officer preferring the charges; if the evidence is con-
tained in the summary court record book, a reference
to it will be sufficient. If this evidence is not submit-
ted or cited, the summary court may take judicial
notice of any such evidence as the record book con-
tains. ^
13. Whenever, in determining on its sentence, a sum-
mary court shall take into consideration previous
convictions, a note of the number of such previous con -
victions will be made on the summary court record.
1 Act of June 18, 1898; see page 120 post; and 8;'.d A. W., as amended by
act approved March 2, 1901, page 12.3, iwst.
2 For forms for sentences, see page 158, j)ost.
3 See page 149, post ; also page 150, par. 2, post.
* Par. 1031, A. R.
6 Id., 1030.
74 THE SUMMARY COURT.
13. Limit of Punishing Power. — Summary courts are
subject to the restrictions of the 88d Article of War.^
Under this article inferior courts-martial "have
power to award punishment not to exceed confinement
at hard labor for three months or forfeiture of three
months' pay, or both, and in addition thereto, in the
case of noncommissioned officers, reduction to the
ranks, and in the case of first-class privates reduction
to second-class privates: Provided, That a summary
court shall not adjudge confinement and forfeiture in
excess of a period of one month unless the accused
shall before trial consent in writing to trial by said
court, but in any case of refusal to so consent the trial
may be had either by general, regimental, or garrison
«court-martial, or by said summary court, but in case of
trial by said summary court without consent as afore-
said, the court shall not adjudge confinement or forfei-
ture of pay for more than one month. " This is the
limit of their x>wiUl ling power. For those offenses for
which a limit of punishment has been prescribed, a
summary court is restricted to the kiiuU of punish-
ment named, except as to the substitutions in the set-
tled ratio given on page 57, ante.
14. Record. — "There shall be a summary court rec-
ord kept at each military post, and in the field at the
headquarters of the proper command, in which shall be
entered a record of all cases heard and determined and
the action had thereon. "^
15. Reviewing Authority. — The commanding offi-
cers authorized to approve the sentences of summary
courts and superior authority have power to remit or
mitigate the same.^
16. When the only officer present with a command
sits as a summary court, no approval of the sentence is
1 Par. 1035, A. K. ; see also page 57, ante.
2 Act of June 18, 1898 ; see page 120, post. For form for record book, see
page 149, post.
^Id., sec. 3, page 121, post.
THE SUMMARY COURT. 75
required by law, but he should sign the sentence as
such officer and date his signature. ^
17. Instructions for Post and Other Commanders,
relating to Summary Courts. — Charges for offenses
cognizable by inferior courts will be laid before the
proper commander, who, if he thinks the accused
should be tried, will cause him to be brought before
the summary court ■^ or garrison or regimental court-
martial. "Before referring charges for which the
maximum limit of punivshment that may be awarded is
greater than one month's forfeiture and confinement to
inferior courts for trial, commanding officers will cause
the accused to sign a statement on the original charges
as to whether or not he consents to trial by summary
court. A note of this statement in each case will also
be entered on the record of the summary court and on
the monthly report of trials by such court." ^
18. " Commanding officers are not required to bring
every dereliction of duty before a court for trial, but
will endeavor to prevent their recurrence by admoni-
tions, withholding of privileges, and taking such steps
as may be necessary to enforce their orders."^ In
accordance with the spirit of the foregoing, company
commanders are authorized, subject to the control of
the commanding officer of the post, to dispose of cases
of derelictions of duty in their commands which would
be within the jurisdiction of inferior courts -martial by
requiring extra tours of fatigue, unless the soldier con-
cerned demands a trial. This right to demand a trial
must be made known to him. ^
19. " The summary court will be opened at a stated
hour every morning except Sunday," for the trial of
such cases as may properly be brought before it. Trials
1 Par. 1032, A. R. 3 Id., 1029. sCir. No. 5, A. G. 0.,
2 Id., 1031. 4 Id., 1027. Marcli 14, 1898.
*If it bo tinderstdoil that the court shall not sit on Sunday, the officer
charged with the duty of bringing offenders before it will complj' with his
duty by doing so at tlie first session of the court thereafter.
76 THE GARRISON COURT-MARTIAL.
will be had on Sunday only when the exigencies of the
service make it necessary." ^
20. Commanding officers will furnish company and
other commanders with copies of the summary court
record relating to men of their commands, said copies to
be certified to be true copies by the commanding officer
or adjutant.^
21. The name of each officer at a post who has acted
as a summary court will be reported on the post return,
with dates.
THE GARRISON COURT-MARTIAI..
1. Composition. — A garrison court-martial is com-
posed of three members-^ and a judge -advocate. The
remarks regarding the eligibility of officers for court-
martial duty, on page 11, paragraphs 1-3, ante, apply to
garrison courts.
2. Constitution. — Every officer commanding a garri-
son, fort, or other place where the troops consist of
different corps may appoint garrison courts.'* The term
"other i^lace " includes any locality whatever where the
command may be, whether in garrison or in the field.
To fulfill the requirement regarding "different corps,"
it is sufficient if there be on duty in the command a
single officer or soldier of another arm of service than
that of which the main body is composed.
3. Jurisdiction, etc, — The summary court act has
expressly abolished the field officer's court, and has
practically substituted the summary court for the gar-
rison and regimental courts-martial, both in time of
peace and war, subject to the provisions that noncom-
missioned officers shall not, if they object thereto, be
brought to trial before summary courts without the
authority of the officer competent to order their trial
1 Par. 1034, A. R. 2 jd., 1031. 3 82d A. W. 4 ja.
(
THE REGIMENTAL COURT-MARTIAL. 77
by general court-martial, but shall in such cases be
brought to trial before garrison, regimental, or general
courts-martial, as the case may be ; ' and the 83d Article
of War provides that a summary court shall not adjudge
confinement and forfeiture in excess of a period of one
month unless the accused shall before trial consent in
writing to trial by said court, but in any case of refusal
to so consent the trial may be had either by general,
regimental, or garrison court-martial.
4. Whenever it becomes necessary to convene a garri-
son court-martial the order appointing it will state the
fact giving it jurisdiction.^
5. What has been said of the jurisdiction of summary
courts as regards persons, offenses, and the ' ' limit of
punishing x>ower " applies equally to garrison courts-
martial. In other respects the general remarks hereto-
fore made regarding the president, members, judge-
advocate, organization, order of procedure,^ etc., of
courts-martial apply to garrison courts, except when
the general court is specially mentioned.
THE REGIMENTAI. COURT-MARTIAL.*
1. Composition. — The regimental, like the garrison
court-martial, is composed of three members and a
judge-advocate; but in case of the regimental court
only officers of the offender's regiment or corps are
eligible for detail on the court. ^
2. Constitution. — Every officer commanding a regi-
ment or corps may appoint a regimental court-martial.^
The words "corps" includes the Corps of Engineers,
the Ordnance, and the Signal Corps.
1 Act of June 18, 1898; see page 121, post.
2 Par. 1036, A. R. For form for order and record, see page 151, post.
3 Testimony taken before a garrison or regimental court-martial will not
be reduced to writing. Par. l()o5, A. 11.
•* See page 99, post^ note.
6 8l8t A. W.
78 THE REGIMENTAL COURT-MARTIAL.
3. Jurisdiction. — With the exception that the regi^
mental court-martial has jurisdiction only over offend-
ers belonging to the regiment or corps from which the
court is composed, what has been said of the jurisdic-
tion, punishing power, and procedure of garrison courto
applies equally to regimental courts. '
^ Regarding order for regimental court, see par. 1036, A. R.; ajid for form
for record, see page 153, post.
COURTS OF INQUIRY.
1. Constitution. — A court of inquiry may be ordered,
that is, convened, by the President or by any command-
ing officer, but shall never be ordered by a commanding
officer except upon a demand by the officer or soldier
whose conduct is to be inquired of.^
2. There is no statutory restriction to the meaning of
the term "commanding officer," consequently any com-
mander of the officer or soldier who makes the request
would have authority to convene the court, but if the
charge to be inquired into is beyond the jurisdiction of
a court-martial which such commander can convene,
he would not, by analogies of the service in the admin-
istration of military justice, be the proper convening
authority in such case. It is the offense charged which
should give the jurisdiction to convene and not the status
of the party in service. ^
3. Jurisdiction. — A court of inquiry is convened to
examine into the nature of any transaction of, or accusa-
tion or imputation against, any officer or soldier, =^ and
the inquiry is confined to those actually in the service.'*
It will not give an opinion on the merits of the case
inquired of unless specially ordered to do so.^ The
opinion may not be unanimous and a dissenting opinion
is therefore authorized. The court is not barred by any
statute of limitation in its investigation. ^
1 115th A. w.
2 Opin. J. A. G., approved by Secretary of War, September 19, 1874.
8115th A. W.
4 Dig. Op. J. A. G., § 366.
6119th A. W.
eDig. Op. J. A. G., §318.
(79)
80 COURTS OF INQUIRY.
4. Composition. — "A court of inquiry shall consist of
one or more officers, not exceeding three, and a recorder,
to reduce the proceedings and evidence to writing. " ^
5. The form of the convening order is similar to that
for a court-martial. It details the members and recorder
by name, and specifies the subject-matter of inquiry, and
directs a report of the facts only, or of the facts with
opinion.
6. Where the court is composed of two or more mem-
bers and the number is reduced by casualty or challenge,
the court may proceed with the reduced number, but the
convening authority should be notified, as a new mem-
ber may be detailed and take his seat during the inquiry.
7. Organization. — It is the custom of the service to
allow the same right of challenge of members as in
courts-martial.
8. The oath of the members of the court is adminis-
tered by the recorder and that of the recorder by the
president of the court. The oaths are those prescribed
by the 117th Article of War.
9. A reporter for a court of inquiry is allowed to be
paid under current appropriation acts for the support of
the army. The employment and rate of compensation is
in the discretion of the Secretary of War only. Reporters
are usually paid at the rates fixed by army regulations
for those of general courts-martial.
10. Procedure. — A court of inquiry is governed by the
general principles of military law, applying the analo-
gies of a court-martial where they are applicable, and
recurring to adjudged cases, precedents, rules, authori-
tative legal opinions and approved books of legal expo-
sition, where there is no pertinent paramount stated
rule. 2
11. "A court of inquiry, and the recorder thereof, have
the same power to summon and examine witnesses as is
given to courts-martial and the judge-advocates thereof.
Such witnesses shall take the same oath which is taken
1 116th A. W. 2 8 Opin. Atty. Gen., 346.
COURTS OF INQUIRY. 81
by witnesses before coarts-martial, and the party ac-
cused shall be i^ermitted to examine and cross-examine
them, so as fnlly to investigate the circumstances in
question. " '
12. The examination of witnesses may be by the court,
by a member thereof, or by the recorder, in the discre-
tion of the court. The recorder is not an adviser of
the court, nor a prosecutor before it, but must assist the
court, if it so desires, in all matters leading to correct
conclusions of fact and law.
13. The court must give its conclusions as to the facts
as a finding, and, when ordered, give an opinion on the
merits of the case.
14. "The proceedings of a court of inquiry must be
authenticated by the signatures of the recorder and the
president thereof, and delivered to the commanding
officer.""^ The form for the record of a general court-
martial should be followed in making up the record of
the court.
1 118th A. W. 2120th id.
12915 6
RETIRINa BOARDS.
1. Constitution and Composition. — "The Secretary of
War, under the direction of the President, shall, from
time to time, assemble an Army retiring board, ^ con-
sisting of not more than nine nor less than five officers,
two-fifths of whom shall be selected from the Medical
Corps. The board, excepting the officers selected from
the Medical Corps, shall be composed, as far as may be,
of seniors in rank to the officer whose disability is in-
quired of."^
2. The provision of the statute as to the rank of the
members is directory only, and the decision of the con-
vening authority, as evidenced by the selection of the
members of the board, is conclusive.
3. Retiring boards are convened by the Secretary of
War, who, in the absence of any statutory authority,
under the custom of the service, appoints a recorder,
4. Right to a Hearing. — "Except in cases where an
officer may be retired by the President upon his own
application, or by reason of his having served forty-five
years, or of his being sixty-two years old, ;no officer shall
be retired from active service, nor shall an officer, in
any case, be wholly retired from the service, without a
full and fair hearing before an Army retiring board, if,
upon due summons, he demands it." ^
5. This entitles an officer subject to be thus retired, to
appear before the board, with counsel if desired, and to
introduce testimony of his own, and to cross-examine
1 For procedure as to retirement on examination for promotion see page
89, and for form for record of retiring board see page 15i, 2)ost.
2 Sec. 1246, R. S.
3 Sec. 1253, id.; sec. 17, act August 13, 1861.
(82)
RETIRING BOARDS. 83
the witnesses examined by the board, including the
medical members of the board who may have taken
part in the medical examination and have stated or re-
ported to the board the result of the same. If the officer
does not elect to appear before the board when sum-
moned, he waives the right to a hearing, and can not
properly take exception to a conclusion arrived at in
his absence. ^
6. Section 1253, Revised Statutes, does not authorize
the President to send a case back to a retiring board
after he has once ai)proved and acted upon its report ;
such approval and action determines that the officer
has had "a full and fair hearing. ""^
7. Challenge.— The statutory right to a "fair hear-
ing" includes the right to a hearing by an impartial
board, and therefore the right to challenge for cause.
8. Oaths. — The members of a retiring board "shall be
sworn in every case to discharge their duties honestly
and impartially."^ The oath is administered by the
recorder.
The following form of oath complies with the statute :
' ' You [naming the members] do swear that you will
honestly and impartially discharge your duties as mem-
bers of this board in the matter now before you. So
help you God."
1 Digest Opin. J. A. G., ^2197.
2 Miller's Case, 19 Ct. Cls., 338; McBlair's case, id., 528. lu both of these
cases the officers had been wholly retired, and their successors had been
appointed and confirmed.
Attorney General Devens held where a naval officer having appeared
before an examining board (organized under sees. 1493-1505, R. S.), and,
the examination being temporarily suspended, was granted permission to
go home and to be absent until notified by the board to appear, and he
failed to receive this notice until after the examination, which was re-
sumed during his absence, had been concluded, and the proceedings and
findings of the board were api)roved by the President and his order in the
case duly executed by the retirement of the officer (under sec. 1447, R. S.),
but the vacancy created by such retirement remained unfilled, and no rights
of any other person had intervened, that the action of the President could
be revoked and the officer allowed a hearing. (16 Opin., 20.)
3Sec.l247, R. S,
84 RETIRING BOARDS.
9. The presiding officer of the board administers the
following oath to the recorder :
"You [naming him] do swear that yon will, accord-
ing to your best ability, accurately and impartially
record the proceedings of the board and the evidence to
be given in the case in hearing. So help you God."
The recorder's being sworn, and his administering
oaths, have no statutory authorization, but are custom
of the service. Section 1248, Revised Statutes, can not
properly be construed as furnishing this authority.
10. Powers. — A retiring board may inquire into and
determine the facts touching the nature and occasion of
the disability of any officer who appears to be incajiable
of performing the duties of his office, and shall have
such powers of a court-martial and of a court of inquiry
as may be necessary for that purpose.
11. The investigation of a retiring board is not re-
stricted by any statute of limitation. It may inquire
into the matter of a disability, however long since it
may have originated.'
13. "The provision that the board 'shall have such
powers of a court-martial and of a court of inquiry as may
be necessary, ' etc. , is indefinite, but has given rise to but
little question in practice. Construing it in connection
with the other provisions cited, its evident intention is
seen to be that the board shall have and exercise such
powers of a ' court ' as may be requisite to insure a full
investigation, to afford a fair hearing, and to enable it
satisfactorily to determine the questions referred. Thus
it is properly authorized and empowered to call for and
entertain such testimony of witnesses, depositions, docu-
ments, or papers, as may be material to establish or
illustrate the nature or extent of the disability, to pass
upon questions of admissibility of evidence, to grant
continuances, to give the officer ordered before it a reas-
onable opportunity of defense if desired, to find and
report in his absence if he fail to appear ; and further to
1 Digest Opin. J. A. G., §2193.
RETIRING BOARa)S. 85
determine the relevancy and validity of challenges to
its members and punish acts in the nature of contempt,
according to articles 86 and 88, if necessary to an impar-
tial and complete inquiry. But the board can not en-
tertain a charge of a military offense as such, nor assume
to try. The disability which it is to inquire into is an
existing physical or mental incapacity, not amoral defect
or a criminal amenability. If the case be one calling
for trial and punishment, it should be referred to a court-
martial."^
13. When the retirement is desired by the officer be-
fore the board, it is proper, at the beginning of the hear-
ing, for him to state under oath the nature and cause of
his disability, the recorder or board asking such ques-
tions as will help to bring out the facts. He may also be
interrogated as to his military history, if it be deemed
desirable to do so. When the retirement is opposed by
him, he can not be required to testify against himself.
14. The senior medical officer of the board is the next
witness. He is called on to submit the result {reduced
to ivriting and signed hy the medical officers) of the
medical examination of the officer before the board, and
is interrogated as to the cause and permanency of the
disability and the degree of incapacity for active service.
The other medical officer or officers (if there be more
than two) are similarly examined. Whether the disa-
bility is an incident of service,'^ is a question for the board
to determine on the facts.
15. The recorder then submits the documentary evi-
dence which he has received from the Adjutant General's
Office. It is not the practice of retiring boards to verify
the correctness of these records under oath. Other evi-
dence may then be introduced. The officer before the
board has the right, as above stated, to object to im-
proper evidence and to interrogate the witnesses, and
1 Wiutlirop's Military Law and Precedents, page 765; Digest Opin. J. A.
G., I 21!)2.
2 As to what " incident to the service " means, see page 89, post, note 1.
86 RETIRING BOARDS.
may himself introduce evidence, if legal, material, and
relevant, and may submit a statement in writing, if he
desires to do so.
16. Finding.— "When the board finds an officer inca-
pacitated for active service it shall also find and report
the cause' which, in its judgment, has produced his in-
capacity, and whether such cause is an incident of
service."-^
17. The board is closed for deliberation and determines
whether the officer' before it for examination is incapaci-
tated for active service or not. (It is not necessary that
the recorder retire. ) When it finds the officer incapaci-
tated for active service, it must also find and report the
cause which, in its judgment, has i^roduced the inca-
pacity, and whether such cause is an incident of serv-
ice. ' The board may modify its findings and decision
at any time before forwarding its record of x^roceedings.
18. Action on Finding.— "The proceedings and deci-
sion of the board shall be transmitted to the Secretary of
War and shall be laid by him before the President for
his approval or disapproval and orders in the case.""
19. In any case in which, in the President's judgment,
the investigation has not been complete, "or the finding
is not justified by the facts, he may, before acting there-
on, return the proceedings to the board for a further
inquiry or hearing, or a correction of its conclusions, as
1 It has been held that the " cause " of " incapacity " inteudeil in section
1249, Revised Statutes, is a physical cause ; that moral obliquity was not had
in view ; and that the matter of the financial integrity of the officer was
beyond the jurisdiction of the board. So, held that the board was not
authorized to recommend the retirement of an officer because he did not
pay his debts. Held also that the inability of a disbursing officer to furnish
a bond when duly required to do so was not BuflBcient ground for his re-
tirement. Dig. Op. J. A. G., g 2203.
Held that the law— sections 1248 and 1249, Revised Statutes— contemplated
an existing and not a purely prospective and contingent incapacity ; and
that an inquiry into an officer's general effir-iency could be pertinent only
in so far as it could be regarded as going to show that his inefficiency, if
found, was the result of an impairment of health. Td., § 2204.
2 Sec. 1249, R. S. ^ /d,^ 1250.
RETIRING BOARDS. 87
in a case of a court-martial. But not being a court, and
the inquiry not being a trial, the board, upon such re-
vision, may, and should if so directed, reexamine former
witnesses or take new testimony.
20. "It is now fully settled that where the President
has finally approved the finding of a retiring board, and
has acted thereupon by making his order retiring the
officer in one of the forms authorized by the statute, his
power is exhausted. He can not then reopen the case,
nor, though the order made was mistaken or unjust, can
he revoke it and substitute another otherwise retiring
the officer. If he does so, the second order will be void
and inoperative. The action of the President, whose
authority in such a case is, in the language of the
Supreme Court, ' wholly dependent upon the letter of
positive enactment,' is 'equivalent to the judgment of
an appropriate tribunal upon the facts as found, and
can not be disturbed.' If injustice has been done,
relief can be afforded by Congress alone. "^
21. "The finding of a retiring board, approved by the
President, is conclusive as to the facts. The board finds
the facts and the President approves or disapproves the
1 Winthrop's Military Law and Precedents, page 767 ; United States v.
Bnrchard, 125 U. S., 179, 180 ; Burchard v. United States, 19 Ct. Cls., 137 ;
Potts V. United States, 125 U. S., 175 ; lliller v. United States, 19 Ct. Cls.,
338; McBlair v. United States, id., 528; 19 Opin. Atty. Gen., 203. ."The
finding of the retiring board, approved by the President, is the judgment
of the tribunal created under the law to determine such questions." Potts v.
United States, supra.
"The finding, approved by the President, fixes the fact that an officer's
incapacity was or was not caused by the service, and the fact once fixed can
not be reviewed." Burchard v. United States, supra.
"Upon the report of the board, the President had the right to adopt one
of three courses with the claimant ; he could disapprove the finding, and
thereby retain the claimant in the active service ; retire him from active
service, or wholly retire him from the Army, as he might determine. He
had a power to exercise in the disposition of the report, and his action
thereon made, in law, the complete exercise of the full measure of author-
ity provided by the statute. It is nut a coulinniiig power, but is performed
to the extent of its existence by the one act of the President." McBlair r.
United States, supra. And compare Ex parte Randolph, 2 Brock., 473;
People r. Waynesville, 88 III., 470, cited in 19 Opin. Atty. Gen., 209.
88 RETIREMENT.
finding, but the law does not empower him to modify
the finding or to substitute a different one. There is here
a judicial iiower vested in the two, and not in the Presi-
dent acting singly, and when the power has been once
fully exercised it is exhausted as to the case."^
RETIREMENT.
1. "When any officer has become incapable of per-
forming the duties of his office, he shall be either retired
from active service, or wholly retired from the service,
by. the President, as hereinafter provided. '"-
2. ' ' When a retiring board finds that an officer is inca-
pacitated for active service, and that his incapacity is
the result of an incident of service, and such decision is
approved by the President, said officer shall be retired
from active service and placed on the list of retired
officers."^
3. "When the board finds that an officer is incapaci-
tated for active service, and that his incapacity is not
the result of any incident of service, and its decision is
approved by the President, the officer shall be retired
from active service, or wholly retired from the service,
as the President may determine. " *
1 Digest Opin. J. A. G., § 2206. See U. S. v. Burchard, 126 U. S., 179.
' Sec. 1245, R. S. (see sees. 1246 to 1258, R. S , inclusive). This section
is taken from sec. 16 of " an act providing for the bitter organization of the
Military Establishment," approved August .3, 1861, wliich prescribed, " that
if any commissioned officer of the Army, or of the Marine Corps, shall have
become, or shall hereafter become, incapable of performing the duties of
his office, he shall be placed upon the retired list and withdrawn from active
service and command and from the line of promotion."
3 Sec. 1251, R. S. It does not affect the authority to retire under sec. 1251_
R. S., that the incapacity of the officer may have been found to have re-
suited from a wound received by him while in the volunteer service before
entering the Regular Army.
*Sec. 1252, R. S. Under sec. 1252, R. S., an officer may, in the discretion
of the President, legally be retired by reason of an incapacity resulting
from habitual drunkenness.
Sees. 1251 and 1252, R. S., are based on sec. 17 of the act cited in note 2,
ante, which prescribed as follows: "The board, whenever it finds an officer
incapacitated for active service, will report whether, in its judgment, the
RETIREMENT. 89
RETIREMEIVT UN^DER ACT OF OCTOBER 1, 1890.
1. The act of October 1, 1890, providing for examina-
tion for promotion in the Army directs: " That should
the officer fail in his physical examination and be found
incapacitated for service by reason of physical disability
contracted in line ^ of duty, he shall be retired with the
said incapacity result from long and faithful service, from wounds or
injury received in the line of duty, from sickness or exposure therein, or
from any other incident of service. If so, and tlio President approve
such judgment, the disabled officer shall thereupon be placed upon the
list of retired officers, according to the provisions of this act. If other-
wise, and if the President concur in opinion with the board, the officer shall
be retired as above, either with his pay proper alone, or with his service
rations alone, at the discretion of the President, or he shall be wholly
retired from the service, with one year's pay and allowances."
The incapacity mentioned is a physical incapacity. (Dig. Opin. J. A. G.,
gg 2203, 2208.)
1 The phrase " in line of duty," as used in this act, should be construed as
having the same meaning with " incident of service," as used in sec. 1249,
R. S.
The following is an extract from a report of the Judge-Advocate General
(2658) which, although relating to enlisted men, is in principle applicable
in the case of commissioned officers. The action of the War Pcpartment on
this report was in effect a confirmation of the conclusion arrived at:
"Formerly the expression 'line of duty' was much more strictly con-
strued than now. Attorney General Gushing explained it thus:
*' 'The phrase" line of duty" is an apt one, to denote that an act of duty
performed must have relation of causation, mediate or immediate, to the
wound, the casualty, the injury, or the disease, producing disability or
death.
# * * * *
"'Every person who enters the military service of the country — officer,
soldier, sailor, or marine — takes upon himself certain moral and legal en-
gagements of duty, which constitute his official or professional obligations.
While in the performance of those things, which the law requires of him
as military duty, he is in the line of his duty. But, at the same time, though
a soldier or saiior, he is not the less a man and a citizen, with private rights
t(t exercise and duties to perform ; and, while atton ding to these things, he
is not in the lino of his public duty. In addition to this, a soldier or sailor,
like any other man, has the physical faculty of doing many things, which
are in violation of duties, either general or special ; and in doing these
things he is not acting in the line of his duty. Around all those acts of the
soldier or sailor which are official in their nature, the pension law draws a
legislative line, and then they say to the soldier or sailor: If, while per-
forming acts which aro within that line, you thereby incur disability or
90 RETIREMENT.
rank to which his seniority entitled him to be promoted ;
but if he should fail for any other reason he shall be
suspended from promotion for one year, when he shall
death, you, or your widow or children, as the case may be, shall receive a
pension or other allowance ; but not if the disability or death arise from acts
performed outside of that line, that is, absolutely disconnected from, and
wholly independent of, the performance of duty. Was the cause of dis-
ability or death a cause within the line of duty or outside of it ? Was that
cause appertaining to, dependent upon, or otherwise necessarily and essen-
tially connected with, duty Mithin the line, or was it unappurtenant, in-
dependent, and not of necessary and essential connection? That, in my
judgment, is the true test-criteriou of the class of pension cases under con-
sideration.' (7 Opin. Atty. Gen., H.l, 162.)
"A more liberal construction was the earlier one of Attorney General
Rush. Upon this point he said: —
" 'I should presume, however, that every officer iu full commission, and
not on furlough, must bo considered iu the lino of his duty, although, at
the moment, no particular or active employment is devolved upon liim.
Tlie same of a soldier who is kept in pay, for it is presupposed of both the
one and the other that they are at all times prepared for duty; and it is
surely of indispensable obligation upon them to keep themselves detached
from other pursuits, so as to be ready at a moment to answer any call
emanating from those who may be authorized to command them.' (1 Opin.
Atty. Gen., 182.)
"But neither of these views has been found to be sufficient, and there-
fore neither has been followed in i)ractice.
" By (the fourth section of) an act of March 3, 18G5 (13 Stat., 488), it was
provided: —
" ' That every noncommisioned officer, private, or other person, who
has been, or shall hereafter be, discharged from the army of the United
States by reason of wounds received in battle, on skirmish, on picket, or in
action, or in the line of duty, shall be entitled to receive the same bounty
as if he had served out his full term.'
"And by an act approved April 12, 1866 (14 Stat., 352), it was declared —
"'That the true intent and meaning of the words "or in the lino of
duty," used in the fourth section of the act approved March 3, 1865, * * *
requires that the benefit of the provision of said section shall be extended
to any enlisted man or other person entitled by law to bounty who has
been or may be discharged by reason of a wound received while actually in
service under military orders, not at the time on furlovigh or leave oT
absence, nor engaged in any unlawful or unauthorized act or pursuit.'
"In this enactment we have a legislative construction of the expression
'in the line of duty,' as used in the earlier legislation cited. To be in the
line of duty, in tlie sense of that legislation, the soldier must bo actually in
service under military orders, and ho must not be on furlough nor engaged
in any unlawful or unauthorized act or pursuit. For the purpose of that
legislation this legislative construction would bo conclusive, but it is not
RETIREMENT. 91
be reexamined, and in case of failure on such reexami-
nation he shall be honorably discharged, with one year's
pay, from the Army,"
2. All questions relating to the physical condition of
an officer shall be determined by the full board.
The physical examination will be thorough, and will
include the ordinary analysis of the urine.
Defects of vision, resulting from errors of refraction,
that are not excessive, and that may be entirely cor-
rected by glasses, do not disqualify, unless they are due
to or are accompanied by organic disease.
8. When the board finds an officer physically inca-
pacitated for service, it shall conclude the examination
by finding and reporting the cause which, in its judg-
ment, has produced his disability, and whether such
disability was contracted in the line of duty.
necessarily so in determining the soldier's condition in other connections —
his right of admission to the Soldiers' Home, for example. In determining
his general military status or condition in respect to the question under
consideration a further limitation has in practice been recognized, namely,
that the disability must not bo the result of the unlawful or unauthorized
act, as a direct or a contribvitory cause. A circular of the Surgeon Gen-
eral's Office, dated May 11, 1893, approved by the Secretary of War, states
the matter as follows:
*' 'It is just to assume that all diseases contracted or injuries received
while an officer or soldier is in the military service of the United States
occur in the line of duty unless the surgeon knows, first, that the disease
or injury existed before (-ntering the service; second, that it was contracted
while absent from duty on furlough or otherwise; or, third, that it occurred
in consequence of willful neglect or immoral conduct of the sick man
himself.'
"I am inclined to believe that the principle as stated in the act of April
12, 18G6, modilied by the limitation indicated, is as accurate a general
statement of the meaning in military administration of the expression 'in
the line of duty' as can be given. It is, however, subject to exceptions.
Thus a soldier may bo on furlough and yet in the line of duty, as when he
is en route to his station at the expiration of his furlough, or when during
his furlough he is, in compliance with orders, on his way to a place to
report his whereabouts. So, certain acts may in a measure be contributory
causes of disability, and yet not to such a degree as to bring the case
within the general rule, as when the disability is the result of negligence,
but the negligence is not of such a degree as to amount to culpable con-
tributory negligence. Such cases can only be properly decided on their
own merits."
92 RETIREMENT.
4. The record in each case where an officer is found
physically disqualified shall be authenticated by all the
members, including medical officers, and the recorder.
In all other cases the medical officer will not be required
to sign the proceedings. If any member dissents from
the opinion of the board, it will be so stated.
5. Any officer rejiorted by a retiring board as incapaci-
tated by reason of physical disability, the result of an
incident of service, shall, if the proceedings of said board
are aj)proved by the President, be regarded as physically
unfit for promotion within the meaning of section 3 of
the act of October 1, 1890, and will be retired with the
rank to which his seniority entitles him whenever a
vacancy occurs that otherwise would result in his pro-
motion on the. active list ; provided, that before the oc-
currence of such vacancy he shall not have been placed
on the retired list. ' '
6. The finding of the board of examination that the
officer is incapacitated for duty is not per .se final, but
must be reported for the action of the Secretary of War
and passed upon by him. Where the finding and report of
the board have been approved but not yet executed by
actual retirement, there may intervene contingencies
which would supersede such proceeding — as the trial
and dismissal of the officer by court-martial, or the aris-
ing of new causes which might make proper that the
question of his disability be inquired into by a retiring
board convened under section 1246, Revised Statutes.
But unless some such new occasion and ground of dis-
qualification be presented, the action of the Secretary
of War, in approving the report, remains final and ex-
haustive, and the officer is entitled to be retired under
the act of 1890, and can not legally be ordered before
such retiring board. ^
^G. 0. 41, A. G. 0., 1897, which also contains detailed instructions as to
procedure of board of examinations in general.
2 Digest Opin. J. A. G., § 2207.
ARTICLES OF WAR.
Section 1342, R. S. The armies of the United States
shall be governed by the following rules and articles.
The word officer, as used therein, shall be understood to
designate commissioned officers, the word soldier shall be
understood to include noncommissioned officers, musi-
cians, artificers, and privates, and other enlisted men,
and the convictions mentioned therein shall be under-
stood to be convictions by court-martial.
Article 1 . Every officer now in the Army of the United
States shall, within six months from the passing of this
act, and every officer hereafter appointed shall , before he
enters upon the duties of his office, subscribe these rules
and articles.
Art. 2. These rules and articles shall be read to every
enlisted man at the time of, or within six days after, his
enlistment, and he shall thereupon 'take an oath or affir-
mation, in the following form : "I, A. B., do solemnly
swear (or affirm) that I will bear true faith and alle-
giance to the United States of America ; that I will serve
them honestly and faithfully against all their enemies
whomsoever; and that I will obey the orders of the
President of the United States and the orders of the
officers appointed over me, according to the rules and
articles of war." This oath may be taken before any
commissioned officer of the Army.
Art. 3. Every officer who knowingly enlists or mus-
ters into the military service any minor over the age of
16 years without the written consent of his parents or
guardians, or any minor under the age of 16 years, or
any insane or intoxicated persons, or any deserter from
the military or naval service of the United States, or
any person who has been convicted of any infamous
94 ARTICLES OF WAR.
criminal offense, shall, upon conviction, be dismissed
from the service, or suffer such other punishment as a
court-martial may direct.
Art. 4. No enlisted man, duly sworn, shall be dis-
charged from the service without a discharge in writing,
signed by a fifeld officer of the regiment to which he
belongs, or by the commanding officer, when no field
officer is present ; and no discharge shall be given to any
enlisted man before his term of service has expired,
except by order of the President, the Secretary of War,
the commanding officer of a department, or by sentence
of a general court-martial.
Art. 5. Any officer who knowing! y musters as a soldier
a person who is not a soldier shall be deemed guilty of
knowingly making a false muster, and punished accord-
ingly.
Art. 6. Any officer who takes money, or other thing,
by way of gratification, on mustering any regiment,
troop, battery, or company, or on signing muster rolls,
shall be dismissed from the service, and shall thereby be
disabled to hold any office or employment in the service
of the United States.
Art. 7. Every officer commanding a regiment, an in-
dependent troop, battery, or company, or a garrison,
shall, in the beginning of every month, transmit through
the proper channels, to the Department of War, an
exact return of the same, specifying the names of the
officers then absent from their posts, with the reasons
for and the time of their absence. And any officer who,
through neglect or design, omits to send such returns,
shall, on conviction thereof, be punished as a court-
martial may direct.
Art. 8. Every officer who knowingly makes a false
return to the Department of War, or to any of his supe-
rior officers, authorized to call for such returns, of
the state of the regiment, troop, or company, or garri-
son under his command ; or of the arms, ammunition,
clothing, or other stores thereunto belonging, shall.
ARTICLES OF WAR. 95
on conviction thereof before a court-martial, be cash-
iered. ^
Art. 9. All public stores taken from the enemy shall
be secured for the service of the United States; and
for neglect thereof the commanding officer shall be
answerable.
Art. 10. Every officer commanding a troop, battery,
or company, is charged with the arms, accoutrements,
ammunition, clothing, or other military stores belong-
ing to his command, and is accountable to his colonel
in case of their being lost, spoiled, or damaged other-
wise than by unavoidable accident, or on actual service.
Art, 11. Every officer commanding a regiment or an
independent troop, battery, or company, not in the
field, may, when actually quartered with such com-
mand, grant furloughs to the enlisted men, in such
numbers and for such time as he shall deem consistent
with the good of the service. Every officer command-
ing a regiment, or an independent troop, battery, or
company, in the field, may grant furloughs not exceed-
ing thirty days at one time, to five per cent of the
enlisted men, for good conduct in the line of duty, but
subject to the approval of the commander of the forces
of which said enlisted men form a part. Every com-
pany officer of a regiment, commanding any troop,
battery, or company not in the field, or commanding in
any garrison, fort, post, or barrack, may, in the absence
of his field officer, gi-ant furloughs to the enlisted men,
for a time not exceeding twenty days in six months, and
not to more than two persons to be absent at the same
time.
Art. 12. At every muster of a regiment, troop, bat-
tery, or company, the commanding officer thereof shall
give to the mustering officer certificates, signed by him-
self, stating how long absent officers have been absent
and the reasons of their absence. And the commanding
'"Cashiered" and "dismissed from the service" are now considered
practically synonymous.
96 ARTICLES OF WAR.
officer of every troop, battery, or company shall give
like certificates, stating how long absent noncommis-
sioned officers and private soldiers have been absent
and the reasons of their absence. Such reasons and
time of absence shall be inserted in the muster rolls
opposite the names of the respective absent officers and
soldiers, and the certificates, together with the muster
rolls, shall be transmitted by the mustering officer to
the Department of War as speedily as the distance of
the place and muster will admit.
Art. 13. Every officer who signs a false certificate,
relating to the absence or pay of an officer or soldier,
shall be dismissed from the service.
Art. 14. Any officer who knowingly makes a false
muster of man or horse, or who signs, or directs, or
allows the signing of any muster roll, knowing the
same to contain a false muster, shall, upon jn-oof thereof
by two witnesses, before a court-martial, be dismissed
from the service, and shall thereby be disabled to hold
any office or employment in the service of the United
States.
Art. 15. Any officer who, willfully or through neg-
lect, suffers to be lost, sj^oiled, or damaged, any military
stores belonging to the United States, shall make good
the loss or damage, and be dismissed from the service.
Art. 16. Any enlisted man who sells, or willfully or
through neglect wastes the ammunition delivered out
to him, shall be punished as a court-martial may direct.
Art. 17. Any soldier who sells, or through neglect
loses or spoils his horse, arms, clothing, or accoutre-
ments, shall be punished as a court-martial may ad-
judge, subject to such limitations as may be prescribed
by the President by virtue of the power vested in him.'
Art. 18. Any officer commanding in any garrison,
fort, or barracks of the United States who, for his pri-
vate advantage, lays any duty or imposition upon, or is
117th A. W., as amended by act of July 27, 1892; see G. 0. 57, A. G. 0.,
ARTICLES OF WAR. 97
interested in, the sale of any victuals, liqnors, or other
necessaries of life, brought into such garrison, fort, or
barracks, for the use of the soldiers, shall be dismissed
from the service.
Art. 19. Any officer who uses contemptuous or disre-
spectful words against the President, the Vice-President,
the Congress of the United States, or the chief magis-
trate or legislature of any of the United States in which
he is quartered, shall be dismissed from the service, or
otherwise punished, as a court-martial may direct.
Any soldier who so offends shall be punished as a court-
martial may direct.
Art. 20. Any officer or soldier who behaves himself
with disrespect toward his commanding officer shall be
punished as a court-martial may direct.
Art. 21. Any officer or soldier who, on any pretense
whatsoever, strikes his superior officer, or draws or lifts
up any weapon, or offers any violence against hjm, being
m the execution of his office, or disobej s any lawful com-
mand of his superior officer, ' shall suffer death, or such
other punishment as a court-martial may direct.
Art. 22. Any officer or soldier who begins, excites,
causes, or joins in any mutiny or sedition, in any troop,
Dattery, company, party, post, detachment, or guard,
shall suffer death, or such other punishment as a court-
martial may direct.
Art. 23. Any officer or soldier who, being present at
any mutiny or sedition, does not use his utmost endeavor
to suppress the same, or having knowledge of any in-
tended mutiny or sedition, does not, without delay, give
information thereof to his commanding officer, shall
suffer death, or such other punishment as a court-martial
may direct.
Art. 24. All officers, of what condition soever, have
power to part and quell all quarrels, frays, and disorders,
whether among persons belonging to his^ own or to
1 Disobedience of an order of a noncommissioned oflRcer should be charged
under the 62d article ; see form d, page 132, post.
2 Sic in Revised Statutes.
12915 7
98 ARTICLES OF WAR.
another corps, regiment, troop, battery, or company, and
to order officers into arrest, and noncommissioned offi-
cers and soldiers into confinement, who take part in the
same, until their proper superior officer is acquainted
therewith. And whosoever, being so ordered, refuses
to obey such officer or noncommissioned officer, or draws
a weapon upon him, shall be punished as a court-martial
may direct.
Art. 25. No officer or soldier shall use any reproachful
or provoking speeches or gestures to another. Any offi-
cer who so offends shall be put in arrest. Any soldier
who so offends shall be confined, and required to ask
pardon of the party offended in the presence of his com-
manding officer.
Art. 26. No officer or soldier shall send a challenge to
another officer or soldier to fight a duel, or accept a
challenge so sent. Any officer who so offends shall be
dismissed from the service. Any soldier who so offends
shall suffer such punishment as a court-martial may
direct.
Art. 27. Any officer or noncommissioned officer, com-
manding a guard, who, knowingly and willingly, suffers
any person to go forth to fight a duel shall be punished
as a challenger ; and all seconds or promoters of duels,
and carriers of challenges to fight duels, shall be deemed
principals, and punished accordingly. It shall be the
duty ofany officer commanding an army, regiment, troop,
battery, company, post, or detachment, who knows or
has reason to believe that a challenge has been given or
accepted by any officer or enlisted man under his com-
mand, immediately to arrest the offender and bring him
to trial.
Art. 28. Any officer or soldier who upbraids another
officer or soldier for refusing a challenge shall himself
be punished as a challenger ; and all officers and soldiers
are hereby discharged from any disgrace or opinion of
disadvantage which might arise from their having re-
fused to accept challenges, as they will only have acted
ARTICLES OF WAR. 99
in obedience to the law, and have done their duty as good
soldiers, who subject themselves to discipline.
Art. 29. Any officer who thinks himself wronged by
the commanding officer of his regiment, and, upon due
application to such commander, is refused redress, may
complain to the general commanding in the State or Ter-
ritory where such regiment is stationed. The general
shall examine into said complaint and take proper meas-
ures for redressing the wrong complained of; and he
shall, as soon as possible, transmit to the Department of
War a true statement of such complaint, with the pro-
ceedings had thereon.
Art. 30. Any soldier who thinks himself wronged by
any officer may complain to the commanding officer of
his regiment, who shall summon a regimental court-
martial for the doing of justice to the complainant.
Either party may appeal from such regimental court-
martial to a general court-martial; but if, upon such
second hearing, the appeal appears to be groundless and
vexatious, the party appealing shall be punished at the
discretion of said general court-martial.'
Art. 31. Any officer or soldier who lies out of his
quarters, garrison, or camp, without leave from his
iThe "regimental court-martial," tinder the 30th A. W., can not be used
as a substitute for a general court-martial or court of inquiry, for it can not
try an officer nor make an investigation for the purpose of determining
whether he shall be brought to trial. When, if the soldier's complaint
should be sustained, the only redress would be a reprimand to the officer,
the matter would not bo within the jurisdiction of this court. It can only
investigate such matters as are susceptible to redress by the doing of jus-
tice to the complainant ; that is, when in some way he can be set right by
putting a stop to the wrongful condition which the officer has caused to
exist. Erroneous stoppages of pay, irregularity of detail, the apparent re-
quirement of more labor than from any other soldiers, and the like, might
in this way be investigated and the wrongful condition put an end to. The
court will in such cases record the evidence and its conclusions of fact, and
recommend the action to be taken. The members of the court (and the
judge-advocate) will be sworn faithfully to perform their duties as members
(and judge-advocate) of the court, and the proceedings will be recorded, as
nearly as practicable, in the same manner as the proceedings of ordinary
courts-martial.
100 ARTICLES OF WAR.
superior oflBcer, shall be punished as a court-martial
may direct.
Art. 32. Any soldier who absents himself from his
troop, battery, company, or detachment, without leave
from his commanding officer, shall be punished as a
court-martial may direct.
Art. 33. Any officer or soldier who fails, except when
prevented by sickness or other necessity, to repair, at
the fixed time, to the place of parade, exercise or other
rendezvous appointed by his commanding officer, or goes
from the same, without leave from his commanding of-
ficer, before he is dismissed or relieved, shall be punished
as a court-martial may direct.
Art, 34. Any soldier who is found one mile from camp,
without leave in writing from his commanding officer,
shall be punished as a court-martial may direct.
• Art. 35. Any soldier who fails to retire to his quar-
ters or tent at the beating of retreat, shall be punished
according to the nature of his offense.
Art. 36. No soldier belonging to any regiment, troop,
battery, or company shall hire another to do his duty for
him, or be excused from duty,, except in cases of sick-
ness, disability, or leave of absence. Every such soldier
found guilty of hiring his duty, and the person so hired
to do another's duty, shall be punished as a court-
martial may direct.
Art. 37. Every noncommissioned officer who connives
at such hiring of duty shall be reduced. Every officer
who knows and allows such practices shall be punished
as a court -martial may direct.
Art. 38. Any officer who is found drunk on his guard,
party, or other duty, shall be dismissed from the service.
Any soldier who so offends shall suffer such punishment
as a court-martial may direct. No court-martial shall
sentence any soldier to be branded, marked, or tattooed.
Art. 39. Any sentinel who is found sleeping upon his
post, or who leaves it before he is regularly relieved,
ARTICLES OF WAR. 101
shall suffer death or such other puniqhiue;?ii k^. a /'courts
martial may direct. . , '" =- ^ ^ *^ >
Art. 40. Any officer or soldier>rhq,'^uits]h£is'giTaa:''d,>
platoon, or division, without leave from Ills supeir:ior;6^-;
ficer, except in a case of urgent necessity, shall be pun-
ished as a court-martial may direct.
Art, 41. Any officer who, by any means whatsoever,
occasions false alarms in camp, garrison, or quarters,
shall suffer death, or such other punishment as a court-
martial may direct.
Art. 43. Any officer or soldier who misbehaves him-
self before the enemy, runs away, or shamefully aban-
dons any fort, post, or guard, which he is commanded
to defend, or speaks words inducing others to do the
like, or casts away his arms or ammunition, or quits his
post or colors to plunder or pillage, shall suffer death,
or such other punishment as a court-martial may direct.
Art. 43. If any commander of any garrison, fortress,
or post is compelled, by the officers and soldiers under
his command, to give up to the enemy or to abandon
it, the officers or soldiers so offending shall suffer death,
or such other punishment as a court-martial may direct.
Art. 44. Any person belonging to the armies of the
United States who makes known the watchword to any
person not entitled to receive it, according to the rules
and discipline of war, or presumes to give a parole or
watchword different from that which he received, shall
suffer death, or such other punishment as a court-mar-
tial may direct.
Art. 45. Whosoever relieves the enemy with money,
victuals, or ammunition, or knowingly harbors or pro-
tects an enemy, shall suffer death, or such other punish-
ment as a court-martial may direct.
Art. 46. Whosoever holds correspondence with, or
gives intelligence to, the enemy, either directly or indi-
rectly, shall suffer death, or such other punishment as
a court-martial may direct.
Art. 47. Any officer or soldier who, having received
pay, or having been duly enlisted in the service of the
10^ ARTICLES OF WAR.
United States, deserts the same, shall, in time of war,
suffer death, or such other punishment as a court-martial
may direct ; and in time of peace, any punishment, ex-
cepting dieath: Which a court-martial may direct.
Art. 48. Every soldier who deserts the service of the
United States shall be liable to serve for such period as
shall, with the time he may have served previous to his
desertion, amount to the full term of his enlistment;
and such soldier shall be tried by a court-martial and
punished, although the term of his enlistment may have
elapsed previous to his being apprehended and tried.
Art. 49. Any officer who, having tendered his resigna-
tion, quits his post or proper duties, without leave and
with intent to remain permanently absent therefrom,
prior to due notice of the acceptance of the same, shall
be deemed and punished as a deserter.
Art. 50. No noncommissioned officer or soldier shall
enlist himself in any other regiment, troop, or company,
without a regular discharge from the regiment, troop,
or company in which he last served, on a penalty of
being reputed a deserter, and suffering accordingly.
And in case any officer shall knowingly receive and
entertain such noncommissioned officer or soldier, or
shall not, after his being discovered to be a deserter,
immediately confine him and give notice thereof to the
corps in which he last served, the said officer shall, by a
court-martial, be cashiered.
Art. 51. Any officer or soldier who advises or per-
suades any other officer or soldier to desert the service
of the United States shall, in time of war, suffer death,
or such other punishment as a court-martial may direct ;
and, in time of peace, any punishment, excepting death,
which a court-martial may direct.
Art. 52. It is earnestly recommended to all officers and
soldiers diligently to attend divine service. Any officer
who behaves indecently or, irreverently at any place of
divine worship shall be brought before a general court-
martial, there to be publicly and severely reprimanded
by the president thereof. Any soldier who so offends
ARTICLES OF WAR. 103
shall, for his first offense, forfeit one-sixth of a dollar ;
for each further offense he shall forfeit a like snm, and
shall be confined twenty-four hours. The money so for-
feited shall be deducted from his next pay, and shall be
applied, by the captain or senior officer of his troop,
battery, or company, to the use of the sick soldiers of
the same.
Art. 53. Any officer who uses any profane oath or
execration shall, for each offense, forfeit and pay one
dollar. Any soldier who so offends shall incur the
penalties provided in the preceding article; and all
moneys forfeited for such offenses shall be applied as
therein provided.
Art. 54. Every officer commanding in quarters, garri-
son, or on the march, shall keep good order, and, to the
utmost of his power, redress all abuses or disorders
which may be committed by any officer or soldier under
his command ; and if, upon complaint made to him of
officers or soldiers beating or otherwise ill-treating any
person, disturbing fairs or markets, or committing any
kind of riot, to the disquieting of the citizens of the
United States, he refuses or omits to see justice done to
the offender, and reparation made to the party injured,
so far as part of the offender's pay shall go toward such
reparation, he shall be dismissed from the service, or
otherwise punished as a court-martial may direct.
Art. 55. All officers and soldiers are to behave them-
selves orderly in quarters and on the march ; and who-
ever commits any waste or spoil, either in walks or trees,
parks, warrens, fish ponds, houses, gardens, grain fields,
inclosures, ormeadows, or maliciously destroys any prop-
erty whatsoever belonging to inhabitants of .the United
States (unless by order of a general officer commanding
a separate army in the field), shall, besides such penalties
as he may be liable to by law, be punished as a court-
martial may direct.
Art. 56. Any officer or soldier who does violence to
any person bringing provisions or other necessaries to
104 ARTICLES OF WAR.
the camp, garrison, or quarters of the forces of the
United States in foreign parts, shall suffer death, or such
other punishment as a court-martial may direct.
Art. 57. Whosoever, belonging to the armies of the
United States in foreign parts, or at any place within
the United States or their Territories during rebellion
against the supreme authority of the United States,
forces a safe-guard, shall suffer death.
Art. 58. In time of war, insurrection, or rebellion,
larceny, robbery, burglary, arson, mayhem, manslaugh-
ter, murder, assault and battery with intent to kill,
wounding, by shooting or stabbing, with an intent to
commit murder, rape, or an assault and battery with an
intent to commit rape, shall be punishable by the sen-
tence of a general court-martial, when committed by
persons in the military service of the United States, and
the punishment in any such case shall not be less than
the punishment provided, for the like offense, by the laws
of the State, Territory, or District in which such offense
may have been committed.
Art. 59. When any officer or soldier is accused of a
capital crime, or of any offense against the person or
property of any citizen of any of the United States
which is punishable by the laws of the land, the com-
manding officer and the officers of the regiment, troop,
battery, company, or detachment to which the person
so accused belongs are required, except in time of war,
upon application duly mkde by or in behalf of the party
injured, to use their utmost endeavors to deliver him
over to the civil magistrate, and to aid the officers of
justice in apprehending and securing him, in order to
bring him to trial. If, upon such application, any officer
refuses or 'willfully neglects, except in time of war, to
deliver over such accused person to the civil magistrates,
or to aid the officers of justice in apprehending him, he
shall be dismissed from the service. ^
1 Municipal ordinances and by-laws are part of the "laws of the land"
within the meaning of the phrase as used in the 59th A. W. (Opin. of Atty.
Gen.; see cir. 15, A. G. 0., 1894.)
ARTICLES OF WAR. 105
Art. 60. Any person in the military service of the
United States who makes or causes to be made any claim
against the United States, or any officer thereof, know-
ing such claim to be false or fraudulent ; or
[2J Who presents or causes to be presented to any per-
son in the civil or military service thereof, for approval
or payment, any claim against the United States or any
officer thereof, knowing such claim to be false or fraudu-
lent; or
[3] Who enters into any agreement or conspiracy to
defraud the United States by obtaining, or aiding others
to obtain, the allowance or payment of any false or
fraudulent claim ; or
[4] Who, for the purpose of obtaining, or aiding others
t(^ obtain, the approval, allowance, or payment of any
claim against the United States, or against any officer
thereof, makes or uses, or procures or advises the making
or use of, any writing or other paper, knowing the same
to contain any false or fraudulent statement ; or
[5] Who, for the purpose of obtaining, or aiding others
to obtain, the approval, allowance, or payment of any
claim against the United States or any officer thereof,
makes, or procures or advises the making of, any oath
to any fact or to any wi'iting or other paper, knowing
such oath to be false ; or
[6] Who, for the purpose of obtaining, or aiding others
to obtain, the approval, allowance, or payment of any
claim against the United States or any officer thereof,
forges or counterfeits, or procures or advises the forging
or counterfeiting of, any signature upon any writing or
other paper, or uses, or procures or advises the use of,
any such signature, knowing the same to be forged or
counterfeited; or
[7] Who, having charge, possession, custody, or control
of any money or other property of the United States,
furnished or intended for the military service thereof,
knowingly delivers, or causes to be delivered, to any per-
son having authority to receive the same, any amount
106 ARTICLES OF WAR.
thereof less than that for which he receives a certificate
or receipt ; or
[8] Who, being authorized to make or deliver any paper
certifying the receipt of any property of the United
States, furnished or intended for the military service
thereof, makes or delivers to any x)erson such writing,
without having full knowledge of the truth of the state
ments therein contained, and with intent to defraud the
United States ; or
[9] Who, steals, embezzles, knowingly and willfully
misappropriates, applies to his own use or benefit, or
wrongfully or knowingly sells or disposes of any ord-
nance, arms, equipments, ammunition, clothing, subsist-
ence stores, money, or other property of the United
States, furnished or intended for the military service
thereof; or
[10] Who knowingly purchases, or receives in pledge
for any obligation or indebtedness, from any soldier,
officer, or other person who is a part of or employed in said
forces or service, any ordnance, arms, equipments, am-
munition, clothing, subsistence stores, or other property
of the United States, such soldier, officer, or other person
not having lawful right to sell or pledge the same.
Shall, on conviction thereof, be punished by fine or
imprisonment, or by such other punishment as a court-
martial may adjudge, or by any or all of said penalties. ^
And if any person, being guilty of any of the offenses
aforesaid, while in the military service of the United
States, receives his discharge, or is dismissed from the
service, he shall continue to be liable to be arrested and
held for trial and sentence by a court-martial, in the
same manner and to the same extent as if he had not
received such discharge nor been dismissed.
Art. 61. Any officer who is convicted of conduct un-
becoming an officer and a gentleman shall be dismissed
from the service.
Art. 62. All crimes not capital, and all disorders and
' The words in italics were added by act of March 2, 1901, page 124, i^ust.
AtlTlCLES OF WAR. 107
neglects, which officers and soldiers may be guilty of,
to the prejudice of good order and military discipline,
though not mentioned in the foregoing Articles of War,
are to be taken cognizance of by a general, or a regi-
mental, garrison, or field officers' ^ court-martial, accord-
ing to the nature and degree of the offense, and punished
at the discretion of such court. "^
Art. 63. All retainers to the camp, and all persons
serving with the armies of the United States in the field,
though not enlisted soldiers, are to be subject to orders
according to the rules and discipline of war.
Art. 64. The officers and soldiers of any troops,
whether militia or others, mustered and in pay of the
United States, shall, at all times and in all places, be
governed by the Articles of War, and shall be subject
to be tried by courts-martial.
Art. 65. Officers charged with crime shall be arrested
and confined in their barracks, quarters, or tents, and
deprived of their swords by the commanding officer.
And any officer who leaves his confinement before he is
set at liberty by his commanding officer shall be dis-
missed from the service.
Art. 66. Soldiers charged with crimes shall be con-
fined until tried by court-martial, or released by proper
authority.
Art. 67. No provost marshal, or officer commanding
a guard, shall refuse to receive or keep any prisoner
committed to his charge by an officer belonging to the
forces of the United States; provided the officer com-
mitting shall, at the same time, deliver an account in
writing, signed by himself, of the crime charged against
the prisoner.
1 The " field officer's " court was abolished by sec. 2 of the summary court
act of June 18, 1898, page 121, 2}<>st.
" Sec. 3. That fraudulent enlistment, and the receipt of any pay or
allowance thereunder, is hereby declared a military offense and made pun-
ishable by court-martial, under the G2d Article of War." (Act of July 27,
1892 ; see G. 0. 57, A. G. 0., 1892.) For definition of fraudulent enlistment,
see page 14, note 4, ante, and for forms for charges see pages 129 and 133,
poet.
108 ARTICLES OF WAR.
Art. 68. Every ofi&cer to whose charge a prisoner is
committed shall, within twenty-four hours after such
commitment, or as soon as he is relieved from his guard,
report in writing, to the commanding officer, the name
of such prisoner, the crime charged against him, and
the name of the officer committing him ; and if he fails
to make such report, he shall be punished as a court-
martial may direct.
Art. 69. Any officer who presumes, without proper
authority, to release any prisoner committed to his
charge, or suffers any prisoner so committed to escape,
shall be punished as a court-martial may direct.
Art. 70. No officer or soldier put in arrest shall be
continued in confinement more than eight days, or until
such time as a court-martial can be assembled.
Art. 71. When an officer is put in arrest for the pur-
pose of trial, except at remote military posts or stations,
the officer by whose order he is arrested shall see that a
copy of the charges on which he is to be tried is served
upon him within eight days after his arrest, and that he
is brought to trial within ten days thereafter, unless the
necessities of the service prevent such trial ; and then
he shall be brought to trial within thirty days after the
expiration of said ten days. If a copy of the charges be
not served, or the arrested officer be not brought to trial,
as herein required, the arrest shall cease. But officers
released from arrest, under the provisions of this article,
may be tried, whenever the exigencies of the service
shall permit, within twelve months after such release
from arrest.
Art. 72. Any general officer commanding an army, a
Territorial division or a department, or colonel com-
manding a separate department, may appoint general
courts-martial whenever necessary. But when any such
commander is the accuser or prosecutor of any officer
under his command the court shall be appointed by the
President; and its proceedings and sentence shall be
sent directly to the Secretary of War, by whom they
ARTICLES OF WAR. 109
shall be laid before the President for his approval or
orders in the case. '
Art. 73. In time of war the commander of a division,
or of a separate brigade of troops, shall be competent to
appoint a general court-martial. But when such com-
mander is the accuser or prosecutor of any person under
his command, the court shall be appointed by the next
higher commander.
Art. 74. Officers who may appoint a court-martial
shall be competent to appoint a judge-advocate for the
same.
Art, 75. General courts-martial may consist of any
number of officers from five to thirteen, inclusive ; but
they shall not consist of less than thirteen, when that
number can be convened without manifest injury to the
service.
Art. 76. When the requisite number of officers to
form a general court-martial is not present in any post
or detachment, the commanding officer shall, in cases
which require the cognizance of such a court, report to
the commanding officer of the department, who shall
thereupon order a court to be assembled at the nearest
post or department at which there may be such a
requisite number of officers, and shall order the party
accused, with necessary witnesses to be transported to
the place where the said court shall be assembled.
Art. 77. Officers of the Regular Army shall not be
competent to sit on courts-martial to try the officers or
soldiers of other forces, except as provided in Article 78.
Art. 78. Officers of the Marine Corps, detached for
service with the Army by order of the President, may be
associated with officers of the Regular Army on courts -
martial for the trial of offenders belonging to the Regu-
lar Army, or to forces of the Marine Corps so detached ;
and in such cases the orders of the senior officer of either
corps, who may be present and duly authorized, shall
be obeyed.
1 Act of July 5, 1884 ; see G. 0. 73, A. G. 0., 1884.
110 ARTICLES OF WAR.
Art. 79. Officers shall be tried only by general courts-
martial ; and no officer shall, when it can be avoided, be
tried by officers inferior to him in rank. ^
Art. 81. Every officer commanding a regiment or corps
shall, subject to the provisions of Article 80, be com-
petent to appoint, for his own regiment or corps, courts -
martial, consisting of three officers, to try offenses not
capital.
Art. 82. Every officer commanding a garrison, fort, or
other place, where the troops consist of different corps,
shall, subject to the provisions of Article 80, be compe-
tent to appoint, for such garrison or other place, courts-
martial, consisting of three officers, tO try offenses not
capital.
Art. 83. Regimental and garrison courts-martial and
summary courts, detailed under existing laws to try
enlisted men, shall not have power to try capital cases
or commissioned officers, but shall have power to award
punishment not to exceed confinement at hard labor for
three months or forfeiture of three months' pay, or both,
and in addition thereto, in the case of noncommissioned
officers, reduction to the ranks, and in the case of first-
class privates reduction to second-class privates: Pro-
vided, That a summary court shall not adjudge confine-
ment and forfeiture in excess of a period of one month
unless the accused shall before trial consent in writing
to trial by said court, but in any case of refusal to so
consent the trial may be had either by general, regi-
mental, or garrison court-martial, or by said summary
court, but in case of trial by said summary court with-
out consent as aforesaid the court shall not adjudge
confinement or forfeiture of pay for more than one
month. 2
Art. 84. The judge-advocate shall administer to each
member of the court, before they proceed upon any trial,
the following oath, which shall also be taken by all mem-
bers of regimental and garrison courts-martial : ' 'You,
1 Art. 80 repealed by act of June 18, 1898, sec. 2, page 121, post
2 83(1 A. W., as amended by act of March 2, 1901, page Vl^, post.
ARTICLES OF WAR. Ill
A B, do swear that you will well and truly try and deter-
mine, according to evidence, the matter now before you,
between the United States of America and the prisoner
to be tried, and that you will duly administer justice,
without partiality, favor, or affection, according to the
provisions of the rules and articles for the government
of the armies of the United States, and if any doubt
should arise, not explained by said articles, then accord-
ing to your conscience, the best of your understanding,
and the custom of war in like cases ; and you do further
swear that you will not divulge the sentence of the court
until it shall be published by the proper authority, ex-
cept to the judge-advocate ; neither will you disclose or
discover the vote or opinion of any particular member
of the court-martial, unless required to give evidence
thereof, as a witness, by a court of justice, in due course
of law. So help you God."
Art, 85. When the oath has been administered to the
members of a court-martial, the president of the court
shall administer to the judge-advocate, or person officiat-
ing as such, an oath in the following form : "You, A B,
do swear that you will not disclose or discover the vote
or opinion of any particular member of the court-martial,
unless required to give evidence thereof, as a witness, by
a court of justice, in due course of law ; nor divulge the
sentence of the court to any but the proper authority,
until it shall be duly disclosed by the same. . So help you
God."
Art. 86. A court-martial may punish, at discretion,
any person who uses any menacing words, signs, or ges-
tures, in its presence, or who disturbs its proceedings by
any riot or disorder.
Art. 87. All members of a court-martial are to behave
with decency and calmness.
Art. 88. Members of a court-martial may be chal-
lenged by a prisoner, but only for cause stated to the
court. The court shall determine the relevancy and
validity thereof, and shall not receive a challenge to
more than one member at a time.
112 ARTICLES OF WAR.
Art. 89. When a prisoner, arraigned before a general
court-martial, from obstinacy and deliberate design,
stands mute, or answers foreign to the purpose, the court
may proceed to trial and judgment as if the prisoner had
pleaded not guilty.
Art. 90. The judge-advocate, or some person deputed
by him, or by the general or officer commanding the
Army, detachment, or garrison, shall prosecute in the
name of the United States, biit when the prisoner has
made his plea, he shall so far consider himself counsel
for the prisoner as to object to any leading question to
any of the witnesses, and to any question to the prisoner
the answer to which might tend to criminate himself.
Art. 91. The depositions of witnesses residing beyond
the limits of the State, Territory, or District in which
any military court may be ordered to sit, if taken on
reasonable notice to the opposite party and duly au-
thenticated, may be read in evidence before such court
in cases not capital. '
Art. 92. All persons who give evidence before a court-
martial shall be examined on oath, or affirmation, in the
following form: "You swear (or affirm) that the evi-
dence you shall give, in the case now in hearing, shall
be the truth, the whole truth, and nothing but the truth.
So help you God."
Art. 93. A court-martial shall, for reasonable cause,
gi'ant a continuance to either party, for such time, and
as often, as may appear to be just; Provided, That if
the jmsoner be in close confinement, the trial shall not
be delayed for a period longer than sixty days.^
Art. 95. Members of a court-martial, in giving their
votes, 'shall begin with the youngest in commission.
1"Skc. 4. That judge-advocates of departments and of courts-martial,
and the trial officers of summary courts, are hereby authorized to admin-
ister oaths for the purposes of the administration of military justice, and
for other purposes of military administration." (Act of July 27, 1892; see
G. 0. 57, A. G. 0., 1892.)
2 Art. 94 repealed by act of March 2, 1901, sec. 2, page 123, poet.
ARTICLES OF WAR. 113
Art. 96. No person shall be sentenced to suffer death,
except by the concurrence of two-thirds of the members
of a general court-martial, and in the cases herein ex-
pressly mentioned.
Art. 97. No person in the military service shall, under
the sentence of a court-martial, be punished by confine-
ment in a penitentiary, unless the offense of which he
may be convicted would, by some statute of the United
States, or by some statute of the State, Territory, or
District in which such offense may be committed, or by
the common law, as the same exists in such State, Ter-
ritory, or District, subject such convict to such punish-
ment.
Art. 98. No person in the military service shall be
punished by flogging, or by branding, marking, or tat-
tooing on the body.
Art. 99, No officer shall be discharged or dismissed
from the service, except by order of the President, or
by sentence of a general court-martial ; and in time of
peace no officer shall be dismissed, except in pursuance
of the sentence of a court-martial, or in mitigation
thereof.
Art. 100. When an officer is dismissed from the serv-
ice for cowardice or fraud, the sentence shall further
direct that the crime, punishment, name and place of
abode of the delinquent shall be published in the news-
papers in and about the camp, and in the State from
which the offender came, or where he usually resides ;
and after such publication it shall be scandalous for an
officer to associate with him.
Art. 101. When a court-martial suspends an officer
from command it may also suspend his pay and emolu-
ments for the same time, according to the nature of his
offense.
Art. 103. No person shall be tried a second time for
the sama offense.
Art. 103. No person shall be liable to be tried and
punished by a general court-martial for any offense
12915 — 8
114 ARTICLES OF WAR.
which appears to have been committed more than two
years before the issuing of the order for such trial,
unless, by reason of having absented himself, or of some
other manifest impediment, he shall not have been
amenable to justice within that period.
No person shall be tried or punished by a court-
martial for desertion in time of peace and not in the
face of an enemy, committed more than two years
before the arraignment of such person for such offense,
unless he shall meanwhile have absented himself from
the United States, in which case the time of his absence
shall be excluded in computing the period of the limi-
tation : Pi^ovided, That said limitation shall not begin
until the end of the term for which said person was
mustered into the service. ^
Art. 104. No sentence of a court-martial shall be car-
ried into execution until the same shall have been
approved by the officer ordering the court, or by the
oflficer commanding for the time being. ^
Art. 105. No sentence of a court-martial, inflicting
the punishment of death, shall be carried into execution
until it shall have been confirmed by the President;
except in the cases of persons convicted in time of war,
as spies, mutineers, deserters, or murderers, and in the
cases of guerrilla marauders, convicted in time of war,
of robbery, burglary, arson, rape, assault with intent
to commit rape, or of violation of the laws and customs
of war ; and in such excepted cases the sentence of death
may be carried into execution upon confirmation by
the commanding general in the field, or the commander
of the department, as the case may be.
Art. 106. In time of peace no sentence of a court-
martial, directing the dismissal of an officer, shall bo
carried into execution, until it shall have been con-
firmed by the President.
1103d A. W., as amended by act of April 11, 1890; see G. 0. 45, A. G. 0.,
1890.
2104th A. W., as amended by act of Jnly 27, 1892; see G. 0. 57, A. G. 0.,
1892.
ARTICLES OF WAR. 115
Art, 107. No sentence of a court -martial appointed
by the commander of a division or of a separate brigade
of troops, directing the dismissal of an officer, shall be
carried into execution until it shall have been confirmed
by the general commanding the army in the field to
which the division or brigade belongs.
Art. 108. No sentence of a court martial, either in
time of peace or in time of war, respecting a general
officer, shall be carried into execution until it shall have
been confirmed by the President.
Art. 109. All sentences of a court-martial may be
confirmed and carried into execution by the officer
ordering the court, or by the officer commanding for
the time being, where confirmation by the President or
by the commanding general in the field, or commander
of the department, is not required by these articles. ^
Art. 111. Any officer who has authority to carry into
execution the sentence of death, or of dismissal of an
officer, may suspend the same until the x^leasure of the
President shall be known; and, in such case, he shall
immediately transmit to the President a copy of the
order of suspension, together with a copy of the pro-
ceedings of the court.
Art. 112. Every officer who is authorized to order a
general court-martial shall have power to pardon or
mitigate any i^unishment adjudged by it, except the
punishment of death or of dismissal of an officer. Every
officer commanding a regiment or garrison in which a
regimental or garrison court-martial may be held shall
have power to pardon or mitigate any punishment
which such court may adjudge.'^
Art. 113. Every judge-advocate, or jierson acting as
such, at any general court-martial, shall, with as much
expedition as the opportunity of time and distance of
])lace may admit, forward the original proceedings and
■sentence of such court to the Judge -Advocate General
' Article 110 repealed by act of June 18, 1898, sec. 2, page 121, post.
"■ See par. 1017, A. R.
116 ARTICLES OF WAR.
of the Army, in whose office they shall be carefully
preserved.
Art. 114. Every party tried by a general court-martial
shall, upon demand thereof made by himself or by any
person in his behalf, be entitled to a copy of the proceed-
ings and sentence of such court.
Art. 115. A court of inquiry to examine into the
nature of any transaction of, or accusation or imputa-
tion against, any officer or soldier, may be ordered by
the President or by any commanding officer; but, as
courts of inquiry may be perverted to dishonorable pur-
poses, and may be employed, in the hands of w^eak and
envious commandants, as engines for the destruction of
military merit, they shall never be ordered by any com-
manding officer except upon a demand by the officer or
soldier whose conduct is to be inquired of.
Art. 116. A court of inquiry shall consist of one or
more officers, not exceeding three, and a recorder, to
reduce the proceedings and evidence to writing.
Art. 117. The recorder of a court of inquiry shall
administer to the members the following oath: "You
shall well and truly examine and inquire, according to
the evidence, into the matter now before you, without
partiality, favor, affection, prejudice, or hojie of reward.
So help you God." After which the president of the
court shall administer to the recorder the following
oath: "You, A B, do swear that you will, according to
your best abilities, accurately and impartially record
the proceedings of the court and the evidence to be
given in the case in hearing. So help you God. "
Art. 118. A court of inquiry, and the recorder thereof,
shall have the same power to summon and examine wit-
nesses as is given to courts-martial and the judge -advo-
cates thereof. Such witnesses shall take the same oath
which is taken by witnesses before courts-martial, and
the party accused shall be permitted to examine and
cross-examine them, so as fully to investigate the cir-
cumstances in question.
AltTICLEJS OF WAR. 117
Art. 119. A court of inquiry shall not give an opinion
on the merits of the case inquired of unless specially
ordered to do so.
Art. 120. The proceedings of a court of inquiry must
be authenticated by the signatures of the recorder and
the president thereof, and delivered to the commanding
officer.
Art. 121. The proceedings of a court of inquiry may
be admitted as evidence by a court-martial, in cases not
capital nor extending to the dismisal of an officer : Pro-
vided, That the circumstances are such that oral testi-
mony can not be obtained.
Art. 122. If, upon marches, guards, or in quarters,
different corps of the Army happen to join or do duty
together, the officer highest in rank of the line of the
Army, Marine Corps, or militia, by commission, there
on duty or in quarters, shall command the whole, and
give orders for what is needful in the service, unless
otherwise specially directed by the President, according
to the nature of the case.
Art. 123. In all matters pertaining to the rank, duties,
and rights of officers, the same rules and regulations shall
apply to officers of the Regular Army and to volunteers
commissioned in, or mustered into said service, under
the laws of the United States, for a limited period.
Art. 124. Officers of the militia of the several States,
when called into the service of the United States, shall on
all detachments, courts-martial, and other duty, wherein
they may be employed in conjunction with the regular
or volunteer forces of the United States, take rank next
after all officers of the like grade in said regular or
volunteer forces, notwithstanding the commissions of
such militia officers may be older than the commissions
of the said officers of the regular or volunteer forces of
the United States.
Art. 125. In case of the death of any officer, the major
of his regiment, or the officer doing the major's duty, or
the second officer in command at any post or garrison,
lis OTHER STATUTORY PROVISIONS.
as the case may be, shall immediately secure all his
effects then in camp or quarters, and shall make, and
transmit to the office of the Department of War, an
inventory thereof.
Art. 126. In case of the death of any soldier, the com-
manding officer of his troop, battery, or company shall
immediately secure all his effects then in camp or quar-
ters, and shall, in the presence of two other officers,
make an inventory thereof, which he shall transmit to
the office of the Department of War.
Art. 127. Officers charged with the care of the effects
of deceased officers or soldiers shall account for and de-
liver the same, or the proceeds thereof, to the legal rep-
resentatives of such deceased officers or soldiers. And
no officer so charged shall be permitted to quit the regi-
ment or post until he has deposited in the hands of the
commanding officer all the effects of such deceased
officers or soldiers not so accounted for and delivered.
Art. 128. The foregoing articles shall be read and
published, once in every six months, to every garrison,
regiment, troop, or company in the service of the United
States, and shall be duly observed and obeyed by all
officers and soldiers in said service.
OTHER STATUTORY PROVISIONS DEFrPflNG
COURT-MARTIAT^ OFFEI^SES.
Sec. 1343. R. S. "All persons who, in time of war, or
of rebellion against the supreme authority of the United
States, shall be found lurking or acting as spies, in or
about any of the fortifications, posts, quarters, or en-
campments of any of the armies of the United States, or
elsewhere, shall be triable by a general court-martial,
or by a military commission, and shall, on conviction
thereof, suffer death."
Sec. 5306, R. S. "Every officer of the United States,
civil, military, or naval, and every sutler, soldier, marine,
or other person, who takes, or causes to be taken into
a State declared to be in insurrection, or to any other
OTHER STATUTORY PROVISIONS. 119
point to be thence taken into such State, or who trans-
ports or sells, or otherwise disposes of therein, any goods,
wares, or merchandise whatsoever, except in pursuance
of license and authority of the President, as i3rovided in
this title [see sec. 5304] , or who makes any false state-
ment or representation upon which license and authority
is granted for such transportation, sale, or other disposi-
tion, or who, under any license or authority obtained,
willfully and knowingly transports, sells, or otherwise
disposes of any other goods, wares, or merchandise than
such as are in good faith so licensed and authorized, or
who willfully and knowingly transports, sells, or dis-
poses of the same, or any portion thereof, in violation of
the terms of such license or authority, or of any rule or
regulation prescribed by the Secretary of the Treasury
concerning the same, or who is guilty of any act of em-
bezzlement, of willful misappropriation of public or pri-
vate money oi: property, of keeping false accounts, or of
willfully making any false returns, shall be deemed
guilty of a misdemeanor, and shall be fined not more
than five thousand dollars, and imprisoned in the pen-
itentiary not more than three years. Violations of this
section shall be cognizable before any court, civil or
military, competent to try the same. "
Sec. 5313, R. S. "All persons in the military or naval
service of the United States are prohibited from buying
or selling, trading, or in any way dealing in captured or
abandoned property, whereby they shall receive or ex-
pect any profit, benefit, or advantage to themselves, or
any other person, directly or indirectly connected with
them, and it shall be the duty of such person whenever
such property comes into his possession or custody, or
within his control, to give notice thereof to some agent,
appointed by virtue of this title [see sec. 5305] , and to
turn the same over to such agent without delay. Any
officer of the United States, civil, military, or naval, or
any sutler, soldier, or marine, or other person who shall
violate any provision of this section shall be deemed
guilty of a misdemeanor, and shall be fined not more
120 SUMMARY COURT ACT.
than five thousand dollars, and imprisoned in the pen-
itentiary not more than three years. Violations of this
section shall be cognizable before any court, civil or
military, competent to try the same."
ACT ESTABLISHING THE SUMMARY COURT.
Be it enacted, etc., That the Act entitled "An act to
promote the administration of justice in the Army,"
approved October first, eighteen hundred and ninety, as
supplemented and amended by subsequent legislation,
be, and the same is hereby, amended so as to read as
follows :
"That the commanding officer of each garrison, fort,
or other place, regiment or corps, detached battalion, or
company, or other detachment in the Army, shall have
power to appoint for such place or command, or in his
discretion for each battalion thereof, a summary court
to consist of one officer to be designated by him, before
whom enlisted men who are to be tried for offenses,
such as were prior to the passage of the Act ' to promote
the administration of justice in the Army,' approved
October first, eighteen hundred and ninety, cognizable
by gaiTison or regimental courts-martial, and offenses
cognizable by field officers detailed to try offenders under
the provisions of the eightieth and one hundred and
tenth articles of war, shall be brought to trial within
twenty -four hours of the time of the arrest, or as soon
thereafter as practicable, except when the accused is to
be tried by general court-martial; but such summary
court may be appointed and the officer designated by
superior authority when by him deemed desirable ; and
the officer holding the summary court shall have power
to administer oaths and to hear and determine such
cases, and when satisfied of the guilt of the accused ad-
jiidge the punishment to be inflicted, which said pun-
ishment shall not exceed confinement at hard labor for
one month and forfeiture of one month's pay, and, in
the case of a noncommissioned officer, reduction to the
SUMMARY COURT ACT. 121
ranks in addition thereto ; that there shall be a summary
court record kept at each military post and in the field
at the headquarters of the proper command, in which
shall be entered a record of all cases heard and deter-
mined and the action had thereon ; and no sentence ad-
judged by said summary court shall be executed until
it shall Imve been approved by the officer appointing the
court, or by the officer commanding for the time being :
Provided, That when but one commissioned officer is
present with a command he shall hear and finally deter-
mine such cases : And provided further, That no one
while holding the privileges of a certificate of eligibility
to promotion shall be brought before a summary court,
and that noncommissioned officers shall not, if they ob-
ject thereto, be brought to trial before summary courts
without the authority of the officer competent to order
their trial by general court-martial, but shall in such
cases be brought to trial before garrison, regimental, or
general courts-martial, as the case may be."
Sec. 2. That articles eighty and one hundred and ten
of the Rules and Articles for the Government of the
Armies of the United States be, and the same are hereby,
repealed.
Sec. 3. That the commanding officers authorized to
approve the sentences of summary courts and superior
authority shall have power to remit or mitigate the same.
Sec. 4. That post and other commanders shall, in time
of peace, on the last day of each month, make a report
to the department headquarters of the number of cases
determined by summary court during the month, setting
forth the offenses committed and the penalties awarded,
which report shall be filed in the office of the judge-advo-
cate of the department, and may be destroyed when no
longer of use.
Sec. 5. That soldiers sentenced by court-martial to
dishonorable discharge and confinement shall, until dis-
charged from such confinement, remain subject to the
Articles of War and other laws relating to the adminis-
tration of military justica
122 ACT OF MARCH 2, 1901.
Sec. 6. That it shall be lawful for any civil officer hav-
ing authority under the laws of the United States, or of
any State, Territory, or District, to arrest offenders, to
summarily arrest a deserter from the military service of
the United States and deliver him into the custody of
the military authority of the General Government.
Sec. 7. That this Act shall take effect sixty days after
its passage.
Approved June 18, 1898.
ACT TO PREVENT THE FAILURE OF MILITARY
JUSTICE.
Be it enacted, etc. , That every person not belonging
to the Army of the United States who, being duly sub-
poenaed to appear as a witness before a general court-
martial of the Army, willfully neglects or refuses to
appear, or refuses to qualify as a witness or to testify or
produce documentary evidence which such person may
have been legally subpoenaed to produce, shall be deemed
guilty of a misdemeanor, for which such person shall be
punished on information in the district court of the
United States ; and it shall be the duty of the United
States district attorney, on the certification of the facts
to him by the general court-marti al, to file an information
against and prosecute the person so offending, and the
punishment of such person, on conviction, shall be a fine
of not more than five hundred dollars or imprisonment
not to exceed six months, or both, at the discretion of the
court; Provided, That this shall neb apply to persons
residing beyond the State, Territory, or District in which
such general court-martial is held, and that the fees of
such witness, and his mileage at the rates provided for
witnesses in the United States district court for said
State, Territory, or District shall be duly paid or tendered
said witness, such amounts to be paid by the Pay Depart-
ment of the Army out of the appropriation for compen-
sation of witnesses : Provided, That no witness shall be
ACT OF MARCH 2, 1901. 123
compelled to incriminate himself or to answer any ques-
tions which may tend to incriminate or degrade him.
Sec. 2. That article ninety -four, section thirteen hun-
dred and forty-two, of the Revised Statutes of the United
States be, and the same is hereby, repealed.
Sec. 3. That section one hundred and eighty-three of
the Revised Statutes of the United States be, and the
same is hereby, amended so as to read as follows:
"Sec. 183, Any officer or clerk of any of the depart-
ments lawfully detailed to investigate frauds on, or at-
tempts to defraud, the Government, or any irregularity
or misconduct of any officer or agent of the United States,
and any officer of the Army detailed to conduct an in-
vestigation, and the recorder, and, if there be none, the
presiding officer of any military board appointed for
such purpose, shall have authority to administer an oath
to any witness attending to testify or depose in the course
of such investigation."
Sec. 4. That article eighty-three, section thirteen
hundred and forty-two, of the Revised Statutes of the
United States be, and the same is hereby, amended to
read as follows :
' 'Article 83. Regimental and garrison courts-martial
and summary courts detailed under existing laws to try
enlisted men shall not have power to try capital cases
or commissioned officers, but shall have power to award
punishment not to exceed confinement at hard labor for
three months or forfeiture of three months' pay, or both,
and in addition thereto, in the case of noncommissioned
officers reduction to the ranks and in the case of first-
class privates reduction to second-class x^rivates: Pro-
vided, That a summary court shall not adjudge confine-
ment and forfeiture in excess of a period of one month,
unless the accused shall before trial consent in writing
to trial by said court, but in any case of refusal to so
consent, the trial may be had either by general, regi-
mental, or garrison court-martial, or by said summary
124 ACT OF MARCH 2, 1901.
court, but in case of trial by said summary court with-
out consent as aforesaid, the court shall not adjudge con-
finement or forfeiture of pay for more than one month. "
Sec. 5. That article sixty, section thirteen hundred
and forty-two, of the Revised Statutes of the United
States be, and the same is hereby, amended by inserting
after the words ' ' shall, on conviction thereof, be pun-
ished by fine or imprisonment, or by such other punish-
ment as a court-martial may adjudge," the words "or
by any or all of said penalties."
Approved, March 2, 1901.
aENBRAL FORMS.
FORMS FOR CHARGES.
Charge and specification preferred against Private
A B , Co. , U. S. Infantry.
Article 17.
(a) Charge: "Selling clothing/ in violation of the
17th Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, did sell the following articles of his
uniform clothing, issued to him, viz : One (1) forage cap,
value $ ; one (1) overcoat, made, value $ ; and
one (1) blanket, woolen, value $ ; total value of ar-
ticles sold $ .
' ' This at , on the of , 19—. "
C D ,
Captain, ■ Infantry,
Officer Preferring Charge.
Witnesses :
1st Sergeant E F , Co. , Infantry.
Private G H , Troop , Cavalry.
Mr. I K . citizen.
(b) "Losing accouterments, in violation of the 17th
Article of War.'"^
^Seepage 18, Sec. Ill, ante.
2 If a soldier is known to have unlawfully disposed of his clothing or ac-
couterments in a way not mentioned in the 17th Article, the charge should
be laid under the C2d Article.
(125;
126 FORMS FOR CHARGES.
Specification : "In that Private A B , Co. ,
• U. S. Infantry, did, through neglect, lose the fol-
lowing articles of his accouterments, issued to him, viz :
One (1) , value .$ ; and one (1) , value § ;
total value of articles lost, $ .
"This at," etc.
Article 20.
Charge: "Behaving with disrespect toward his com-
manding officer, in violation of the 20th Article of War. "
Specification: "In that Private A — -B , Co. ,
U. S. Infantry, did behave himself with disrespect
toward his commanding officer. Captain C D ,
U. S. Infantry, by (here insert language or describe
the conduct).
"This at on the of , 19—."
ARTICIiE 21.
(a) Charge: "Disobedience of orders,' in violation of
the 21st Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, having received a lawful command
from his superior officer, 2d Lieut. C D ,
U. S. Infantry, to (insert order), did willfully disobey
the same.
"This at , on the of , 19—."
or,
(b) ' * Striking his superior officer, in violation of the
21st Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, did strike his superior officer, 2d
Lieut. C D , U. S. Infantry, with (here
^ A uoncompllance by a soldier with an order emanating from a noncom-
missioned officer is not an offenso under this article, but one to be cliargeU,
in general, under the 62d. A simple neglect to comply with a standing
order is an offense under the 62d Article, and not under the 2l8t, which
implies a willful defiance of authority.
FORMS FOR CHARGES. 127
describe the assault) the said lieutenant being in the
execution of his office.
"This at , on the of , 19—."
Article 24.
Charge: "Disobedience of orders, in violation of the
24th Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, being present and taking part in a
(quarrel, fray or disorder) among enlisted men of ,
and having been duly ordered by {insert name and rank
of officer or noncoyiimissioned officer) into confinement
{or arrest) did refuse to obey and did disobey said order.
" This at , on the of , 19—."
Article 32.
Charge : ' ' Absence without leave, in violation of the
32d Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, did absent himself from his com-
pany, without leave from his commanding officer, from
, on the of , 19 — , until , on the
of , 19—.
"This at , on the of , 19—."
Article 33.
(a) Charge: "Absence from parade, in violation of
the 33d Article of War. "
Specification : "In that Private A B , Co. ,
U. S. Infantry, not being prevented by sickness or
other necessity, did fail to repair, at the fixed time, to
the place of parade appointed by his commanding officer.
" This at , on the of , 19—."
or,
(5) "Absence from 11 p. m. inspection, in violation of
the 33d Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry not being prevented by sickness or
128 FORMS FOR CHARGES.
other necessity, did fail to repair, at the fixed time, to
the place appointed by his commanding officer for 11
o'clock p. m. inspection of his company.
"This at , on the of , 19—."
Article 38.
(a) Charge: "Drunkenness on duty, in violation of
the 38th Article of War."
Specification: "In that Private A B , Co. ,
U. S. Infantry, while on duty on stable guard, was
found drunk.
"This at , on the of , 19—."
or,
(b) ' ' In that Private A B , Co. , U. S.
Infantry, while on duty at drill, was found drunk.
"This at," etc.
Article 39.
(a) Charge: "Sleeping on post, in violation of the
39th Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, being on guard and posted as a sen-
tinel, was found sleeping on his post.
" This at , on the of , 19—."
or,
(b) "Leaving post, in violation of the 39th Article of
War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, being on guard and posted as a sen-
tinel, did leave his post before he was regularly relieved.
"This at, "etc.
Article 40.
Charge: "Quitting guard, in violation of the 40th
Article of War, "
Specification : "In that Private A B , Co. ,
U. S. Infantry, being on guard, did, without urgent
necessity, quit his guard without leave from his superior
officer.
"This at , on the of , 19—."
FORMS FOR CHARGES. 129
Article 47.
(a) Charge : ' ' Desertion, in violation of the 47th Arti-
cle of War."
Specification: "In that Private A B , Co. ,
U. S. Infantry, a soldier in the service of the United
States, ^ did desert the same at , on or about the
of , 19 — , and did remain absent in desertion until
he was apprehended {or until he surrendered himself),
at , on or about the of , 19 — ."
{If a soldier deserts and enlists in another troop, he
should be charged with desertion under the 47th Article,
and also with "fraudulent enlistment, to the prejudice
of good order and military discipline," under the 6Sd.^
The specification to the latter charge should read as
follows:)
(6) "In that Private A B , Co , U. S.
Infantry, a soldier in the service of the United States,
did, without a discharge from said regiment of infantry,
fraudulently enlist in Troop , U. S. Cavalry, at
. on the of , 19 — , under the name of ."
Article 51,
Charge : ' 'Advising {or persuading) a soldier to desert,
in violation of the 51st Article of War."
Specification : "In that Private A B , U.
S. Infantry, did advise {or persuade) Private A
B , U. S. Infantry, to desert the service of
the United States {if desertion occurred, state the fact).
" This at , on the — - of , 19—."
1 This form is applicable either in case a soldier has "received pay" or
has been "duly enlisted." In either case the "statement of service" will
enable the court to determine as to the statute of limitation and proper pun-
ishment. (See page 33, par. 9, and page 48, ante.
- See 50th A. W. In such cases it is not necessary to allege receipt of pay
or allowance, as the soldier being already in the service, his enlisting again
without a discharge is punishable as fraudulent enlistment without regard
to the act of July 27, 1892. See Dig. Op. J. A. G., § 1418.
12916 9
130 FORMS FOR CHARGES.
Article 58.
Charge: " Murder, in violation of the 58th Article of
War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, did in time of (war, insurrection, or
rebellion) willfully, unlawfully, feloniously and with
malice aforethought murder and kill by {here
set forth the mariner of killing).
"This at , on or about the of , 19 — ."
Article 60.
(a) Charge: "Causing to be presented to the United
States authorities for payment a false and fraudulent
claim against the United States, knowing such claim to
be false and fraudulent, in violation of the 60th Article
of War."
Specification: "In that 1st Lieut. A B , •
U. S. Infantry, having duly assigned to and
caused to be presented for payment to , Deputy
Paymaster General, U. S. Army, by , his official
pay account and claim against the United States for pay
in full for the month of , 19—, amounting to the sum
of (S ), and the same having been duly satisfied
and paid on such presentation, on or about , 19 — ,
did subsequently cause to be presented for payment by
his assignee, , to the said , Deputy Pay-
master General, another, and a false and fraudulent,
official pay account and claim against the United States
for pay for the same month and in the same amount, he,
the said Lieut. A B , well knowing that this sub-
sequent account and claim was false and fraudulent.
"This at , on or about the of , 19 — /'
(b) Charge : ' ' Larceny, in violation of the 60th Article
of War."
Specification : "In that Private A B — — , Co. ,
■ U. S. Infantry, did feloniously take, steal, and carry
away , of the value of $ , the property of the
FORMS FOR CHARGES. 131
United States, furnished and intended for the military
service thereof.
" This at , on the of , 19—."
Article 61.
Charge : ' ' Conduct unbecoming an officer and a gen-
tleman, in violation of the 61st Article of War."
Specification 1: "In that 1st Lieut. A B ,
U. S. Infantry, having, for value received, assigned to
, his official pay account and claim for pay in
full against the United States for the month of ,
19 — ^ which said account v^as made and executed by
him in due manner and form, did, nevertheless, for a
valuable consideration, assign to , another and
a second pay account and claim of the same nature
and form, and for the same amount and period, he, the
said Lieut. A B , well knowing at the time he
made such assignment that the second account and claim
was false and fraudulent.
" This at — -, on or about the of , 19 — ."
Specification 2: " In that 1st Lieut. A B ,
U. S. Infantry, having made and executed in due form
his certain pay account as an officer in the army for the
month of , 19 — , and having duly assigned the said
account to , thereby parting with all individual
title and interest therein, and without having redeemed
the same, and while it remained in full force and effect,
did falsely certify with his official signature to the cor-
rectness of another official pay account for pay for the
said month of , 19 — , duly made, executed, and as-
signed to , which said certificate was in words
as follows : ' I certify that the amount charged in the
foregoing account is correct and just.'
"This at , on or about the of , 19 — ."
Article 62.
(a) Charge: "Neglect of duty, to the prejudice of
good order and military discipline. "
132 FORMS FOR CHARGES.
Specification : "In that Private A B , Co. — ^ -,
U. S. Infantry, being on duty as , and it beiiig
his duly as such to , did fail and neglect to perform
said duty.
"This at , on the of , 19—."
(6) Charge: "Drunkenness and disorderly condtict,
to the prejudice of good order and military discipliiie. "
Specification : "In that Private A— B , Co. ,
U. S. Infantry, was drunk and disorderly in — — .
"This at , on the of , 19—."
(c) Charge: "Suffering a prisoner to escape, to the
prejudice of good order and military discipline."
Specification : ' ' In that Private A- — - B , Co.- — ,
U. S. Infantry, while on duty as a sentinel, did,
through neglect, suffer Private C D , Co. ,
U. S. Infantry, a prisoner under his charge, to escape.
"This at , on the of , 19—."
or,
Specification : "In that Private A B , Co. -,
U. S. Infantry, while on duty as a sentinel, did will
fully suffer Private C D -, Co. , U. S.
Infantry, a prisoner under his charge, to escape.
"This at , on the of , 19—."
(d) Charge: "Conduct to the prejudice of good order
and military discipline.''
Specification : "In that Private A B , Co. ,
U. S. Infantry, having received a lawful order
from 1st Sergt. C D , Co. , U. S. Infan-
try, the said sergeant being in the execution of his office,
to {insert order), did willfully disobey the same.
"This at , on the of , 19—."
{If any person not a soldier ^ fraudulently enlist in the
1 For case of fraudulent enlistment by a soldier, see page 129, form (fc),
ante; and for definition ot "fraudulent enlistmeut," see page 14, note 4,
ante.
FORMS FOR CHARGES. 133
United States service, the charge and specification should
read : '■ )
(e) Charge: "Fraudulent enlistment, in violation of
the 62d Article of War."
Specification : "In that Private A B , Co, ,
U. S. Infantry, did, at , on the of , 19—,
fraudulently enlist as a soldier in the service of the United
States, by falsely representing that he had never been dis-
charged from the United States service by sentence of
a military court and by deliberately and willfully con-
cealing from the recruiting officer, , the fact of his
dishonorable discharge from , on , pursuant to
sentence of court-martial ; and that he has at , since
said enlistment, received pay and allowances there-
under. "
or,
if) Specification : "In that Private A B , Co. — ,
U. S. Infantry, did, at , on the of , 19—,
he being a minor, fraudulently enlist as a soldier in the
service of the United States by falsely representing him-
self to be over 21 years, to wit, years and
months of age ; and that he has at , since said enlist-
ment, received pay and allowances thereunder. "
(g) Charge: "Manslaughter, to the prejudice of good
order and military discipline, in violation of the 62d
Article of War."
Specification : "In that Private A B , Co. ,
U. S. Infantry, did unlawfully, willfully and feloni-
ously kill- Private C D , Co. , — U. S. In-
fantry, by {here insert manner of killing).
"This at , on the of , 19—."
(It) Charge: "Assault with intent to kill, to the pre-
judice of good order and military discipline."
Specification : "In that Private A B , Co. ,
U. S. Infantry, did feloniously assault Sergeant
1 See sec. 3 of the act of July 27, 1892; page 107, note 2, ante.
134 FORMS FOR CHARGES.
, Co. , U. S. Infantry, by shooting at
him with a pistol (or, by stabbing him with a knife,
etc. , etc. ) with intent to kill.
"This at , on the of , 19—."
(i) Charge : ' ' Burglary, to the prejudice of good order
and military discipline."
Specification : "In that Private A B , Co. ,
U. S. Infantry, did, in the night-time, break into
and enter the quarters of 1st Lieut. C D ,
U. S. Cavalry, with intent to commit a felony, to wit :
{here describe the felony).
* ' This at , about o'clock — . m. , on the
of , 19—."
{j) Charge: "Larceny, to the prejudice of good order
and military discipline. "
Specification : "In that Private A B , Co. ,
U. S. Infantry, did feloniously take, steal, and carry
away , of the value of dollars ($ ), the prop-
erty of Corporal , Co. , U.S. Infantry.
"This at , on the of , 19—."
(fc) Charge: "Embezzlement, as defined in section
5488, Revised Statutes of the United States, in violation
of the 62d Article of War."
Specification: "In that , U. S. Army, being
the officer in charge for tho United States of , and,
as such officer in charge of said , being a disbursing
officer of the United States, and having intrusted to him
large amounts of public money of the United States,
did willfully and knowingly apply for a purpose not
authorized by law a largo sum of the said moneys so
intrusted to him, by willfully and knowingly causing
the amount hereinafter named to be paid out of the
said moneys which were subject to his order and control
as such officer in charge of said , the account on
which the same was paid being false, the amount paid
not being due or owing from the United States to the
party paid, or to anyone, and he, the said , well
FORMS FOR CHARGES. 135
knowing this to be the case; the said account, the
amount paid, and the payment being that designated by
the following voucher (and the entries therein and the
indorsements thereon), submitted by the said ■ ,
with his accounts and marked 'Appropriation for .'
Voucher No. , $ , dated , the said pay-
ment having been caused to be made on or about , by
the said drawing and delivering a check, as
such officer in charge of , by which the payment was
ordered and directed to be made out of moneys of the
United States under his control as such officer.
"This at , on or about the of , 19 — ."
[1) Charge: " Perjury, ^ to the prejudice of good order
and military discipline."
Specification: "In that Private A B , Co. ,
U. S. Infantry, having been duly sworn, at his own
request, as a witness in his own defense before a
court-martial, convened at , by order No. ,
dated , 19 — , for his trial, did willfully, falsely, and
corruptly testify as follows :
"Question by j udge -advocate : ?
"Answer : .
"Which testimony was false in that (specify in what
respects), and which testimony was known by him, the
said A B , to be false, was material to the issue
then being tried, and was given with intent to deceive
the court.
"This at , on the of , 19—."
1 Wharton says (Criminal Law, §1259): "Perjury before courts-martial
is by statute made indictable in most jurisdictions; but even when a statute
does not apply, the weight of authority is that it is perjury at common law."
It is a statutory crime, under sec. 5392, R. S. So that false swearing before
a court-martial, if it possesses the other elements of perjury, is perjury, and
can be tried as such by court-mai-tial under the 62d A. W. The rules of
evidence in regard to perjury will then apply. When any of the elements
of perjury are lacking the offense will properly be charged as " false swear-
ing; " e. g., when the matter is not material to the issue.
136 STATEMENT OF SERVICE.
STATEMENT OF SERVICED
Statement of service of , Company ,
Regiment . {Required by paragraph 1028, Army
Regulations. )
FORMER SERVICE.
Date of enlistment.
Date of discharge.
Character on discharge.
Date of present enlistment , 19 — .
Date of confinement under present charges —
19—.
(Place. ) Commanding
(Date.)
STTRGEOIf'S REPORT OX ALLEGED DESERTER.
Fort ,
, 19—.
Sir: In compliance with par. , A. R., I have the
honor to report that I have critically examined ,
an alleged deserter, and find him fit for service {or, unfit
for service on account of ) .
To the Surgeon.
Post Adjutant.
' See page GO, par. 6, ante. This form will bo printed on official letter
paper.
RECORD OF GENERAL COURT-MARTIAL. 137
RECORD OF A GET^ERAr. COURT-MARTIAL. i
Sec. I. — Form for Record.
Page 1.2
{Inmargin.y
Case 1.
Proceedings'* of a general court-martial which con-
vened at , , pursuant to the following order :
{Here insert a literal copy of the order appointing the
court, and, following it, copies of any orders modifying
the detail. )
Headquarters Department of ,
, , 19-.
Special Orders, )
No. — . \
A general court-martial is appointed to meet at ,
, at . m. , on , 19 — , or as soon there
after as practicable, for the trial of such persons as may-
be properly brought before it.
DETAIL FOR THE CX)URT.
Major , 5th Cavalry.
Captain , 2d Artillery.
Captain , assistant surgeon.
1st Lieutenant , 10th Infantry.
1st Lieutenant , 5th Cavalry.
2d Lieutenant , 2d Artillery.
2d Lieutenant , 10th Infantry.
1st Lieutenant , 5th Cavalry, judge-advocate.
iSee "Record of proceedings," page 59, arUe. The record will be clear
and legible, and, if practicable, without erasure or interlineation.
2 The pages of the record will be numbered and margins of 1 inch will be
left at the top, bottom, and left side of each page.
3 Words inclosed in parentheses, ( ), or brackets, [ ], are simply explana-
tory, and will not be copied in the record.
4 "Every party tried by a general court-martial shall, upon demand
thereof, made by himself or by any person in his behalf, be entitled to a
copy of the proceedings and sentence of such court." (114th A. W.) Appli-
cations for copies under tliis article will be addressed to the Judge-Advocate
General. (Par. 995, A. E.)
138 RECORD OF GENERAL COURT-MARTIAL.
{If less than thirteen members are detailed, the order
ivill state :)
A greater number of officers can not be assembled with-
out manifest injury to the service.
(In case travel is necessary, the following sentence will
he, added :)
The journeys required in complying with this order
are necessary for the public service.
By command of Brigadier General :
(Signed) ,
Assistant Adjutant General.
Fort ,
, 19—.
The court met pursuant to the foregoing order at
o'clock — . m.
PRESENT.!
Major , 5th Cavalry.
Captain , assistant surgeon.
1st Lieutenant , 10th Infantry,
1st Lieutenant , 5th Cavalry.
2d Lieutenant , 2d Artillery.
1st Lieutenant , 5th Cavalry, judge-advocate.
Captain , 2d Artillery.
2d Lieutenant , 10th Infantry.
{If the cause of absence is known, it will be recorded,
if unknown, it will be so stated.y
1 In the record of the proceedings of a court-martial, at its organization
for the trial of a case, the officers detailed as members and judge-advocate
will b« noted by name as present or absent. In the record of the proceed-
ings of subsequent sessions the following form of words will be used, sub-
ject to such modifications as the facts may require: "Present, all the
members of the court and the judge-advocate." When the absence of an
officer who has not qualified, or who has been relieved or excused as a mem-
ber, has been accounted for, no further note will be made of it.
2 It is the duty of the judge-advocate to ascertain, if possible, the cause
of absence. If a member is absent by order, the number and date of order
will be given ; if absent sick, a surgeon's certificate of sickness and inability
to attend will be furnished by the absent member, and appended to the
record.
HECORD O^ GENERAL COtJRT-MARTlAL. 139
The court then proceeded to the trial of Private
, Battery , U. S. Artillery, who, having been
brought before the court, stated that he did not desire
counsel ; (or) introd\iced as counsel.
[Reporter.] ^
I was duly sworn as reporter. ^
The order convening the court ^ was read to the ac
cused, and he was asked if he objected to being tried by
any member present named therein ; to which he replied
in the negative.
[Challenges.]
(or) that he objected to on the following
grounds :
(Insert objections. )
The challenged member stated :
{Insert the statement of the challenged member, who
should always be 7'eqnested to respond to the challenge
and inform the court upon its merits. Should the
accused, after this statement, desire to put the chal-
lenged member upon his voir dire, the record should
continue :)
The accused having requested that the challenged
member be sworn upon his voir dire,^ was
duly sworn by the judge-advocate, and testified as
follows:^
1 To facilitate use of form, subheads " reporter,' "challenges," etc., are
inserted and followed by marginal lines. To use form in case no reporter is
employed, follow form to "reporter," and then omit ivsfar as marginal line
under "reporter" extends. In like manner omit when necessary for other
subheads. '^
2 The reporter must be sworn in each case. For form of oath, see page
29, par. 4, ante.
2 (And the order or orders modifying the detail, if any.)
* For form of oath, see page 30, par. (J, ante.
5 The form of examination should be similar to that given for witness for
the defense, page 144, post. The accused should first ask his questions, and
then the judge-advocate and court such as they may deem pertinent.
140 RECORD OF GENERAL COURT-MARTIAL.
The challenged member, the accused, and judge-
advocate then withdrew, ' and the court was closed,
and on being opened the president announced in
their presence that the objection of the accused was
not sustained 2 (or) that the objection was sustained.
then withdrew.
The accused was asked if he objected to any other
member present ; ^ to which he replied in the nega-
tive, (or) that he objected to on the follow-
ing grounds .
(Insert objection in full and record as before. )
The members of the court and the judge-advocate
were then duly sworn.'*
[Interpreter.]
I (If an interpreter is required, he should now be
sworn. )
[Delay.]
(If delay is desired for cause known, application
should now be made and the proceedings of the court
recorded.^ If no delay is requested, the record should
continue:)
The accused was then arraigned upon the following
charges and specifications :
Charge I : .
Specification 1st : .
Specification 2d : .
1 See page 60, par. 5, ante.
2 In case of a tie vote see page 22, note 2, ante.
8 Only one member at a time can be challenged, and a record of the pro-
ceedings in each case must be made.
•* Whenever the same court-martial tries more than one prisoner on sepa-
rate and distinct charges, the court will be sworn at the commencement of
each trial and separate proceedings in each case prepared.
^ See page 30, ante.
RECORD OF GENERAL COURT-MARTIAL. 141
Charge II : .
[Plea in bar.]
To which the accused submitted the following
special plea in bar of trial : ^
(or)
To which the accused pleaded as follows :
To the 1st specification, 1st charge, "Guilty;" (or)
"Not guilty."
To the 2d specification, 1st charge, "Guilty;" (or)
"Not guilty."
To the 1st charge, ' ' Guilty ; " (or) ' ' Not guilty. "
To the 1st specification, 2d charge, etc.
Sergeant John Jones, Co. , Infantry, a -v^if^it-
ness for the prosecution, was duly sworn, and testified
as follows :
Direct examination:
Questions by the judge-advocate : ^
Q. Do you know the accused ? If so, state who he is.
A. I do ; Private — , Battery , Artillery.
( The succeeding questions of the judge-advocate and
their answers should follow in order, y^
Cross-examination :
Questions by the accused :
Q- ?
(If the accused declines to cross-examine the witness
the record shoidd state :)
The accused declined to cross-examine the witness.
1 If a special plea is made, the plea, the reply of the judge-advocate, and
the action of the court thereon will be fully stated; see page 32, par. 7, ante,
and page 145, note 2, post.
- When considered desirable the first question may be as to the identity
of the witness.
'■^ The record should set forth fully all the testimony introduced upon the
trial, the oral portion as nearly as practicable in the precise words of the
witness. If the court should decide to expunge any part it will not be
literally expunged or omitted from the record but will not be thereafter
considered as part of the evidence.
142 RECORD OF GENERAL COURT-MARTIAL.
Reexamination :
Questions by the judge-advocate:
Q- ?
Examination by the court:
Q. ?
[Objection to question.] '
Question by a member : ?
To this question, the accused (or party objecting)
objected as follows :
{Insert objection. )
To which the member replied :
{Insert reply. )
The accused and judge-advocate withdrew and the
court was closed, and on being opened the president
announced in their presence that the objection was
sustained,
(or) was not sustained.
{In the latter case the record should continue:)
The question was then repeated by the judge-
advocate.
A. .
{If the court considers it necessary to hear the testimony
of the witness read or the tvitness desires to have certain
testimony read for correction the record will show the
fact and the corrections, if any. )
' If a question, put by a member, is objected to by another member, the
judge-advocate, or the accused, and the objection is sustained, it will be
recorded as a question by a member, and not answered. If the objection is not
sustained it will be recorded as a question by the court, repeated by the judge-
advocate, and must be answered. If a question is objected to by anyone, at
any time during the trial, the above method of recording the action of the
court will be followed.
RECORD OF GENERAL COURT-MARTIAL. 143
(At the close of the prosecution the record should con-
tinue:)
The judge-advocate announced that the prosecution
here rested.
{If the court adjourns to meet another day the record
should continue:)
The court then, at o'clock — . m., adjourned to
meet at o'clock — . m. , on .
C D ,
1st Lieut. ,
Judge-Advocate.^
Fort ,
The court met, pursuant to adjournment, at
o'clock — . m.
PRESENT.2
All the members of the court and the judge-advocate. ^
The accused, his counsel, and the reporter were also
present.
{If the proceedings of the previous day are required
by the court to he read, the fact will be recorded in the
following form :)
The proceedings of were read^ and approved.
(or) corrected as follows:
(In latter case, enumerate corrections, giving page and
line on which they occur. )
1 The judge-advocate should sign each day's proceedings. (Par. 1055,
A. R.)
2 See page 138, note 1, ante.
3 If any member is absent add except (giving cause of absence, if known).
4 Tlie reading of previous proceedings will be dispensed with, unless for
special reason considered necessary by the court. Sec page 60, par. 2, ante.
U4 RECORD OF GENERAL COURT-MARTIAL.
Corporal John Smith, Co. , Infantry, a wit-
ness for the defense, was duly sworn and testified as
follows :
Direct examination:
Question by the judge-advocate:' Do you know the
accused ? If so, state who he is.
Questions by the accused:
Q. ?
(TTie examination should he conducted as in case of a
witness for the prosecution, the judge-advocate cross-
examining, and the accused, if he so desires, reexamin-
ing the uyitness. )
{Should the accused ivish to testify in his own behalf,
the record will continue :)
The accused, at his own request, was duly sworn as a
witness, and testified as follows:
Q. — ?
A. .
(T7ie examination of the accused should be conducted
in the same manner as that of any other witness. )
(If the accused has no other witness to call, the record
should continue :)
The accused had no further testimony to offer and no
statement to make.
{or) having no further testimony to offer, made the fol-
lowing verbal statement in his defense.
1 Though this is a witness for the defense, the judge-advocate will ask the
preliminary question for the purpose of determining his identification of
the accused. When considered desirable, the first question may be as to the
identity of the witness.
RECORD OF GENERAL COURT-MARTIAL. 145
(or) having no further testimony to offer, submitted a
written statement in his defense, which was read to the
court, and is hereto appended and marked A. '
(or) requested until o'clock — . m. to prepare his
defense.
(If the court takes a recess during the time asked for,
the record will continue :)
The court then took a recess until o'clock — . m. ; at
which hour the members of the court, the judge-advo-
cate, the accused, his counsel, and the reporter resumed
their seats.
{Or, if the court has other business before it, the record
may continue:) ^
The court then proceeded to other business, and at
o'clock — . m. resumed the trial of this case ; at which
hour, etc.
The accused submitted his defense, which was read to
the court, and is hereto appended and marked B.^
The judge-advocate submitted the case without re-
mark,
(or) replied as follows:^
{Insert reply.)
{or) submitted and read to the court a written reply,
which is hereto appended and marked C.
1 All documents aud papers made part of the proceedings, or copies of
them, will be appended to the record, in the order of their introduction,
after the space left for the remarks of the reviewing authority, aud marked
in such a manner as to afford easy reference. It is not necessary to encum-
ber a record by spreading upon it documents or other writings, or matter
excluded by the court. The record should simply specify the character of
the writings and the grounds iipon which they wore ruled out.
2 The statement of the accused, or argument in his defense, and all pleas
in bar of trial or in abatement, when in writing, should be signed by the
accused, referred to in proceedings as having been submitted by him, and
appended to the record, whether he is defended by counsel or not.
3 The judge-advocate is entitled by usage to sum up the case and present
an argument at the conclusion of the- trial, even though the accused declines
to make argument or statement.
12915 10
146 RECORD OF GENERAL COURT-MARTIAL.
The accused and judge-advocate then withdrew and
the court was closed, and finds the accused, Private
, Battery , U. S. Artillery:
Of the 1st specification, 1st charge: "Guilty;" (or)
"Not guilty."
Of the 2d specification, 1st charge: "Guilty, except
the words ' ,' and of the excepted words Not
guilty."
Of the first charge : ' 'Guilty ; " {or) ' ' Not guilty ; " (or)
"Not guilty, but guilty of, etc., ."
Of the 1st specification, 2d charge, etc.
[Previous convictions when accused is found
GUILTY.]
(If the accused is found guilty and the punishTnent
is discretionary,^ the record should continue:)
The judge-advocate and accused were then recalled
and the court opened, and the judge-advocate stated
that he had no evidence of previous convictions to
submit.
(or) read the evidence of previous convictions '^ hereto
appended and marked D, E, etc.
{If the accused has any statement to make in regard
to his jirevious convictions, it will he recorded. )
The accused and judge-advocate then withdrew and
the court was closed, and sentences him, Private
, Battery , U.S. Artillery, .
[No previous convictions, or accused acquitted.]
{If the punishment is not discretionary, or the ac-
cused is acquitted, the record, after the Jindirigs are
stated, should continue :)
And the court does therefore sentence him, etc.
{or) does therefore acquit him, Private , Bat-
tery , U. S. Artillery.
1 See page 55, par. 2, ante.
2 See "Previous convictions," page 44, ante. When the proof produced
is the copy furnished to the company or other commander, in accordance
with par. 1031, A. R., it will he returned to him and a copy of it attached to
the record of the general, regimental, or garrison court trying the case.
(Par. 1038, A. R.)
RECORD OF GENERAL COURT-MARTIAL. 147
The judge-advocate was then recalled, and the court
at . m. proceeded to other business.
{or) adjourned until . m., the inst.
(or) adjourned to meet at the call of the president.
(or, on completion of the trial of the last case before the
court) adjourning sine die.
A B ,
Major ,
President.
C D ,
1st Lieut. ,
Judge-Advocate.
(At least two blank images will be left after the adjourn-
ment for the decision and orders of the reviewing
authority. )
FOUM OV BKIEF.
{The papers forming the complete record ivill be
fastened together at the top, and the record folded in
four folds, and briefed on the first fold as follows:)^
Private, Co. , .
Trial by general court-martial
at ;
Commencing , 19 — ;
Ending , 19—.
President :
Major ,
Judge- Advocate :
1st Lieut. —
iWhen the record is completed, the judge-advocate will forward it with-
out delay to the convening authority. (Par. 1057, A. R.) See also page 62,
par. 3, and page 69, par. 1, ante.
148 RECORD OF GENERAL COURT-MARTIAL.
Sec. II.— Form for revision op record. i
Fort ,
The court reconvened at o'clock — . m. , pursuant
to the following order :
{Insert copy of order. )
(or) pursuant to the following indorsement:
(Insert copy of indorsement. )
ABSENT.
(Insert names of absentees, and state cause of absence,
if known. )
The judge-advocate read to the court the foregoing
order.
(or) the foregoing indorsement of the convening
authority.
The judge-advocate then withdrew, and the court
was closed and revokes its former findings, and finds
the accused, etc.
(or) revokes its former sentence, and sentences the
accused, etc.
(or) respectfully adheres to its former findings and
sentence.
(or) amends the record by, etc.^
The judge-advocate was then recalled and the court
at . m. , etc.
A B ,
C D , Major ,
1st Lieut. , President.
Judge- Advocate.
(The record of revision ivill be appended to the original
proceedings and the ivhole indorsed and forwarded as
before. )
1 See " Revision of record," page 61, ante.
2 If the flndiugs aud sentence are to be considered, all the members who
voted on them should, if possible, be present. At least five members of the
court, who acted ujion the trial, must, and the judge-advocate should, be
present at a revision ; but it is in general neither necessary nor desirable
that the accused should be present.
3 See page 61, par. 2, ante.
RECOllt) OB* A SlTMMAllY COUtlT.
149
RECORD OF A SUMMARY COURT.
Sec. I. — Form for record.'
Record of a summary court at , appointed
by Orders No. , Headquarters , 19 — .
Name, rank,
company, aiul
regiment.
O CS
Synopsis of
specification.
Is
Sentence,
witii signa-
ture of trial
officer.
■S 53 ^ a
Sec. II. — Remarks on record. ^
1. The synopsis of specification will be as brief as is
consistent with showing, in connection with the Article
of War violated, the nature of the offense and the date
of its commission. For example, under the 32d Article
of War, the synopsis may be, "from 1 a. m. to 10 p. m.,
October 10, 1892;" under the 33d Article, "absent from
reveille roll call, October 10, 1892;" and under the 38th
* Blank forms for summary court record and for monthly report of cases
tried (for form, sec page 150, post) will be furnished by the Adjutant
General of the Army. The new form for the copy of summary court record,
to be used as evidence of previous convictions, is intended for the purpose
of reducing this evidence to the smallest space and bulk. The blanks are
not intended for only one case each, but for as many cases as there is room
for on the blank. The margin at the left of the blank is intended for bind-
ing with the court-martial record. For instructions regarding evidence of
previous convictions by summary court, see page 45, par. 2, and page 73,
par. n, ante.
2 When commanding officer tries case no approval is necessary. See par.
1032, A. B.
3 lu each case the record must show whether the accused has consented
or refused to consent in writing to trial by summary court as proscribed in
par. 1029, A. R. See page 75, par. 17, ante.
150 REPORT OF SUMMARY COURT CASES.
Article, "at drill, October 10, 1892." So under the 62d
Article it may be, ' ' drunk in quarters, October 10, 1893 ;"
"absent from fatigue, October 10, 1892;" "absent from
duty as company cook, October 10, 1892," etc.
The sentence will, when practicable, be recorded in
brief, as for example, "forfeiture of $10, and ten days'
confinement at hard labor,"
2. When the only officer present with a command
sits as a summary court, no approval of the sentence is
required by law, but he should sign the sentence as such
officer and date his signature. '
3. The name of the post or other place will not be
given under the head of "action of officer appointing
court, with date and signature," as this information
appears at the head of the record.
MONTHLY REPORT OF SUMMARY COURT CASES.
Report of cases^ tried by summary court at , for
the month of , 19 — .
Name, rank,
I company, and
regiment.
-Synopsis of
specification.
Sentence.
(If mitigated, give
sentence as miti-
gated only. Signa-
ture of trial oiHcer
not to be copied.
Give date of signa-
ture of officer ap-
pointing court.)
1 Par. 1032, A. R.
2 The report of each case must show whether the accused has consented
or refused to consent in writing to trial by summary court, as prescribed in
par. 1029, A. K.
RECORD OB^ GARRISON COURT-MARTIAL. 151
RECORD OF A GARRISON COURT-T^ARTIAL..^
Sec. I. — Form for record.
Case .
Proceedings of a garrison court-martial convened at
, pursuant to the following order:
Fort ,
Orders, [
No . f
A garrison court-martial will convene at this post at
o'clock a. m., on , 19 — , or as soon there-
after as practicable, for the trial of such persons as have
refused to consent in writing to trial by summary court. ^
DETAIL FOK THE COURT.
Captain .
1st Lieutenant .
2d Lieutenant .
2d Lieutenant , judge-advocate.
By order of :
(Signed) : ,
1st Lieutenant ,
Adjutant.
Fort ,
, 19—.
The court met, pursuant to the foregoing order, at
■ o'clock — . m.
Captain .
1st Lieutenant .
2d Lieutenant .
2d Lieutenant , judge-advocate.
1 The form of record for a garrison court-martial differs from that for a
general court-martial only in respect to the form of the order appointing the
court. The form here given is that for a case in which a plea of " Guilty "
is entered; if the prisoner pleads "Not guilty," or makes a special plea,
the form for record of a general court will be followed.
2 See page 77, par 4, ante.
152 RECORD OF GARRISON COTJR'f-MARTlAL.
The court then proceeded to the trial of Private
, Company , Infantry, who, having refused
to consent in writing to trial by summary court, was
brought before the court, and having heard the order
convening it read, was asked if he had any objection to
being tried by any member named therein ; to which he
replied in the negative.
The members of the court and the judge -advocate
were then duly sworn, and the accused was arraigned
upon the following charge and spegification :
Charge : .
Specification : .
To which the prisoner pleaded :
To the specification, " Guilty."
To the charge, " Guilty."
{In case testimony is taken, it is not recorded.^)
The judge-advocate announced that the prosecution
here rested.
The prisoner stated that he had no testimony to offer
or statement^ to make.
The accused and judge-advocate then withdrew, and
the court was closed and finds the accused, Private
, Company , Infantry.
Of the specification, "Guilty."
Of the charge, " Guilty."
The judge -advocate and the accused were then recalled
and the court opened; and the judge-advocate stated
that he had no evidence of previous convictions to
submit, (or) read the evidence of previous convictions
hereto appended and marked A, B, etc.
The accused and judge-advocate then withdrew, and
the court was closed and sentences him. Private
, Company , Infantry, etc.
1 Par. 1055, A. R. The record must give the names of witnesses exam-
ined, both for the prosecution and defense, and will state the fact as to
their having been duly sworn.
^Statements and arguments will not be reduced to writing in the record.
RECORD Ofi^ tlEGtMENTAL COtTRt-MARtlAL. 153
The judge-advocate was then recalled and the court
at . m., etc.
A B ,
Captain — — ,
President.
C D ,
Sd Lieut. ,
Judge- Advocate.
{A sine die adjournment will he added to the last case
before the court, and the record of each case folded and
indorsed in the same manner as that for a general
court-martial. )
Sec. II. — Remarks on the Record.
1. The decision and orders of the post commander,
properly dated and over his official signature, will fol-
low immediately after the sentence, adjournment, or
other final proceeding of the court in the case.
2. ' ' The complete proceedings of a garrison or regi-
mental court will be transmitted without delay by the
post or regimental commander to department head-
quarters." ^
RECORD OF A REGIMENTAL COURT-MARTIAL.2
Case .
Proceedings of a regimental court-martial convened
at , pursuant to the following order :
Fort , ,
, , 19—.
Orders, )
No. . \
A regimental court-martial will convene at this post
at o'clock a. m., on , , 19 — , or as soon there-
after as practicable, for the trial of such persons as have
refused to consent in writing to trial by summary court. ^
J Par. 1058, A. E.
2 The form of record for a regimental court differs from that for a garri-
son or a general court only in respect to the order convening the court.
3 See page 18] par. 3, ante.
154 PROCEEDINGS OF RETIRING feOARD.
DETAIL FOR THE C0URT.3
{Complete record as in case of garrison court-martial.)
PROCEEDINGS OF A RETIRIJiTG BOARD.
Proceedings of an Army retiring hoard convened at
hy virtue of the following orders :
Headquarters of the Army,
Adjutant General's Office,
Washington, , 19 — .
Special Orders, )
No. . ]
The following order has been received from the War
Department :
War Department, Washington, , 19 — .
By direction of the President, and in accordance with
section 1246, Revised Statutes, an Army retiring board
is hereby appointed to meet, at the call of the president
thereof, at , for the examination of such officers
as may be ordered before it.
DETAIL FOK THE BOARD.
Colonel , 10th Infantry.
Lieutenant Colonel , 3d Infantry.
Major , surgeon.
Captain , assistant surgeon.
Captain , 2d Artillery.
1st Lieutenant , 10th Infantry, recorder.
Secretary of War.
By command of Lieutenant General :
Adjutant General.
3 See pa^e 77, par. 2; also page 99, note 1, ante.
t»tlOCEEDlNGS OF RETIRING BOARD. 155
, , 19-.
The board met pursuant to the foregoing order at 11
o'clock a. m,
PRESENT.
Colonel , 10th Infantry.
Lieutenant Colonel , 3d Infantry.
Major — , surgeon.
Captain , assistant surgeon.
Captain , 2d Artillery.
1st Lieutenant , 10th Infantry, recorder.
Captain , , appeared before the board
pursuant to par. , Special Orders No. , Adju-
tant General's Office, dated , 19—, and stated that
he did not desire counsel ; (or, introduced as
counsel. )
The order convening the board was then read, and
Captain was asked if he had any objection to
offer to any member present ; to which he replied in the
negative.^
The members of the board and the recorder were then
duly sworn.
1 (Oj-) that he objected to on the following gronnds :
{Insert objections.)
The challenged member stated.
{Insert the statement of the challenged member , who should be requested to respond
to the challenge and inform the board vpon its merits. Should the officer before the
board for examination desire to put the challenged member on his voir dire, the
record should continue :)
Captain , having reqnegted that the challenged member be sworn
on his voir dire, was dnly sworn by the recorder, and testified as
follows :
*****
The board was then closed, and, on being opened, its decision was an-
nounced that the objection was not sustained, (or) that the objection was
sustained. {In the latter case the record should state that the challenged member
then withdrew.)
Captain was then asked whether he objected to any other mem-
ber ; to which, etc., as before.
{Five being, under sec. 12k6, B. S., the minimum number of members of a
retiring board, it must, ivheti reduced below that number bij challenge, or if the
board is left without the proportion of medical officers required by said section,
adjourn and report the J acts to the convening authorittj.)
156 fROCEEblNGS OV' RmiRiNG BOARD.
(If the officer desires to be retired, the record will oon-
tinue :)
Captain was then asked whethei: he desired
to be retired, and answered in the affirmative. He was
then duly sworn as a witness, and testified as follows :
Q. Please state the nature of your disability and its
cause, and how long you have suffered from it ?
A. ( The officer can here make an oral statement or sub-
mit a tcritten one. If a written statement is suhriiitted
the record will state :)
The witness submitted a written statement, which was
read to the board, and is hereto attached marked "A."
Q. Is the statement submitted by you correct ?
A. Yes.
( The board may then ash further questions. )
Q. Do you desire to make any further statement ?
A. . '
( When the officer objects to retirement, he will not be
examined at this stage of the proceedings, but. may intro-
duce evidence or make a statement, as hereinafter indi-
cated. )
Major , surgeon, a member of the board, was
then duly sworn, and testified as follows :
Q. Please submit to the board the result of your ex-
amination of Captain .
The witness submitted a written report signed by him-
self and Assistant Surgeon , also a member of
the board, which was read to the board and is attached,
marked "B."
Q. From what cause does Captain 's dis-
ability proceed ?
A. .
Q. Is the disability permanent ?
A. .
Q. Is Captain 's disability such as to incapacitate
him for active service ?
A. .
* * * * *
PROCEEDINGS OF RETIRING BOARD. 157
( The examination of the witness should be conducted
so as to bring out all material facts on the lines indi-
cated. )
Captain stated that he had no question to
ask, (or) asked the following questions:
* * * * *
(The other medical member of the board should then be
similarly interrogated. )
The recorder then submitted certain papers referred
to the board from the Adjutant General's Office, which
were read to the board, and are attached, marked .
Captain had no further evidence to submit
nor statement to make. (When there is such evidence
or statement, the record will dtdy set it forth. )
The board was then closed for deliberation, and, hav-
ing maturely considered the case, finds that Captain
is incapacitated for active service and that the
cause of said incapacity is . And the board further
finds that said incapacity i§ {or is not) an incident of
service.
The board then adjourned. '
>
, President of the Board. ^
Recorder.
1 {Or when the board wishes to hear the record read :)
The board then adjourned to meet at o'clock — . m.
SECOND day's proceedings.
The board met pursuant to adjournment.
Present: All the members and the recorder.
The foregoing proceedings were then read and approved.
The board then adjourned.
President of the Board,
Recorder,
2 It is not necessary that the i)roceeding8 should be authenticated by the
signatures of all the members of the board.
158 FORMS FOR SENTENCES.
FORMS FOR SENTENCES.
Form 1. Reduction: * * * " to be reduced to the
ranks."'
Form 2. Confinement : * * * " to be confined at
hard labor, under charge of the post guard, for ( — )
days."
Yorm^. Forfeiture: * * * "to forfeit (— )
dollars of his pay.^ now due or to become due."^
Form 4. Confinement and forfeiture : * * * "to
be confined at hard labor, under charge of the post guard,
for (— ) months, and to forfeit (— ) dollars per
month for the same period."
Form 5. Dishonorable discharge and forfeiture of pay
and allowances: * * * "to be dishonorably dis-
charged the service of the United States, forfeiting all
pay and allowances due him."
Form 6, Dishonorable discharge, forfeiture of pay and
alloioances, and confinement : * * ^e "to be dishon-
orably discharged the service of the United States, for-
feiting all pay and allowances due him, and to be confined
at hard labor at such post {or, in such penitentiary) as
the reviewing authority may direct, for (—) years."
iSee pages 56 and 57, and page 74, par. 13, ante.
- Detention of pay is no longcir authorized ; and under the acts of February
12, 1895 (28 Stat. L., 655), and March 16, 1896 (29 Stat. L., 60), pay can no
longer be retained.
3 By adding the words "now due or to become due" the pay rolls will
generally be simplified, by permitting all of the forfeiture to be collected
at the next payment.
SUBPCENA FOR CIVILIAN WITNESS. 159
SUMMONS FOK A MILITARY WITNESS.
Fort ,
, 19—.
To ,
Infantry.
Sir : You are hereby summoned to appear on the
of , 19 — , at o'clock — . ra. , before a general court-
martial, convened at , by Special Orders, No. ,
from , as a witness in the case of Private A B ,
Co. , Infantry.
C D ,
Judge- Advocate.
SUBPa:NAi FOR civile! AN WITNESS.
United States )
vs. y Subpcena.
The President of the United States, to , greeting :
You are hereby summoned and required to be and
appear in person on the day of , 19 — , at
o'clock — . m., before a general court-martial of the
United States, convened at , by Special Orders,
No. , Headquarters , dated , 19 — ,
then and there to testify and give evidence as a witness
for the in the above-named case. And have you
then and there this precept.
Dated at , this day of , 19 — .
Judge- Advocate of the Court-Martial.
' Fees must bo tendered or paid under act of March 2, 1901, page 122, arUe.
160 SCTBPCENA DUCES TECUM.
SUBPCENAi DUCES TECUM.
(Civilian witness.)
United States J
lis ^•
Subpcena.
The President of the United States, to , greeting :
You are hereby summoned and required to be and
appear in person on the day of , 19 — , at
o'clock — . m., before a general court-martial of the
United States, convened at , by Special Orders,
No. , Headquarters , dated , 19 — ,
then and there to testify and give evidence as a witness
for the in the above-named case; and you are
hereby required to bring with you, to be used in evi-
dence in said case, the following-described documents,
to wit : . And have you then and there this
precept.
Dated at , this day of , 19—.
Judge-Advocate of the Court-Martial.
RETURN OF SERVICE.
{Indorsement of preceding ivrits.y
United States
vs.
, 19—.
I certify that I made service of the within subpcena
on , the witness named therein, by personally de-
livering to him in person a duplicate of the same at ,
on the dav of , 19 — .
1 Fees must be tendered or paid under act of March 2, 1901, page 122, ante.
2 On the back of each form of writ are forms for both certificate and
affidavit.
WARRANT OF ATTACHMENT. 161
, being duly sworn, on his oath states that
the foregoing certificate is true. ,
Subscribed and sworn to this day of , 19 — .
before me. ^ — , — — .
WARRANT OF ATTACHMENT.
United States )
vs. y
The President of the United States, to , greeting:
Whereas, , of , was on the day
of , 19 — , at , duly subpoenaed to appear and at-
tend at , , on the day of , at o'clock
— . ni. , before a general court-martial duly convened by
Special Orders, No. , dated Headquarters Depart-
ment of , , 19 — , to testify on the part of
the in the above-entitled case ; and whereas he has
failed to appear and attend before said general court-
martial to testify as by said subpoena required, and
whereas he is a necessary and material witness in behalf
of the in the above-entitled case.
Now, therefore, by virtue of the power vested in me,
the undersigned, as judge-advocate of said general court-
martial, by section 1302 of the Revised Statutes of the
United States, you are hereby commanded and empow-
ered to apprehend and attach the said , wher-
ever he may be found within the of ,^ and
forthwith bring him before the said general court-
martial assembled at , to testify as required by
said subpoena. ^
Judge-Advocate of said
General Court-Martial.
Dated , , 19—.
1 After service, as above indicated, the original subpoena should bo at once
returned to the judge-advocate of the court ; if the witness can not be found,
the judge-advocate should be so informed.
'State, Territory, or District where the court sits.
12915 11
162 INTERROGATORIES AND DEPOSITION.
INTERROGATORIES AND DEPOSITION.!
INTERROGATORIES.
The United States
The following interrogatories and cross-interrogatories
to be propounded under the 91st Article of War, to
, stationed (or residing) ^ at , a witness for
the prosecution (or defense) ^ in the above -entitled case
now pending and to be tried before the general court-
martial convened at , by paragraph , Special
Orders No. — , Headquarters Department of , dated
^q j accepted by the court in open session,
' ' ] agreed upon by both parties in ad-
the — having been given reasonable opportunity to sub-
vance of the assembling of the court and subject to excep-
mit cross -interrogatories ^and are respectfully for-
tions when read m court ^ «■ ^ " «= ^o^ ^ u j
warded to the convening authority with the request that
some suitable officer may be designated to take, or cause
to be taken, the deposition of said witness thereon :
First interrogatory : Are you in the military service of
the United States? If yea, what is your full name, rank,
organization, and station? If nay, what is your full
name, occupation, and residence?
Second interrogatory : Do you know the accused, a
in ? If yea, how long have you known him?
Third interrogatory : ?
Etc.
First cross-interrogatory : ?
Etc.
First interrogatory by the Court : ?
Etc.
Dated at , this day of , 19 — .
Judge Advocate. President.^
1 See Court-Martial Manual, page 37.
2 Erase the word inappropriate to the case. With the consent of the oppo-
site party the deposition of a witness residing tvithin the State, Territory,
or District in which the court sits may be taken and read in evidence. A
written stipulation signed by both parties should, in such a case, be attached
to this paper before it is signed.
3 Erase the line inappropriate to the case.
* If taken in advance of the assembling of the court, the interrogatories
should be signed by the judge-advocate and the accused instead of the
president and judge-advocate.
INTERROGATORIES AND DEPOSITION. 163
Headquarters Department of .
, 19—.
, stationed (or residing)^ at , is
hereby designated to take, or cause to be taken, the
deposition of the said , a witness on the part of
the in the case of the United States against ■
, now pending before a general court-martial at
. The deposition, when taken, to be sent by
him to , the president of said court at .
By command of General .
»
Adjutant General.
DEPOSITION.
, the witness above named, having been first
duly swoiTi by me, , a^ , stationed (or
residing)' at , doth depose and say for full
answers to the foregoing interrogatories, as follows :
To the first interrogatory : .
Etc.
(^Signature of witness. J
Subscribed and sworn to before me this day of
, 19—.
3
I, , the officer designated to cause the depo-
sition of the said to be taken on the foregoing
interrogatories and cross-interrogatories, decertify that
it was duly made and taken under oath.
1 Erase the word inappropriate to the case.
2 Insert official character: as " Trial Officer Summary Court," "Notary
Public," etc.
' The jurat to bo signed by the officer administering the oath, who will
add his official designation. (See Manual for Courts-Martial, page 38, par. 3.)
If the oath is administered by a Notary Public, his seal will be affixed to
the deposition.
164
ACCOUNT OF CIVILIAN WITNESS.
ACCOUNT OF CIVI1.IAN TVITNESS.
The United States to , Dr.
19-.
Expenses as witness before a military court
convened iinder annexed order.
Dolls.
Cts.
From , 19—, to , 19—
For mileage from to and
return, being miles, at 5 cents per mile __..
For allowance while in attendance on said court,
from , 19 — , to , 19 — , as
per judge-advocate's certificate hereon,
days, at $1.50 per day
" c3
Total
1 1
From , 19—, to , 19—
i -s
1!
For actual cost of travel from to
and return, as per memorandum annexed
For actual cost of meals and rooms while travel-
ing to and from eaid court, between above
dates, inclusive, days
^5g
•s a
For actual cost of meals and rooms while in
attendance on said court, from , 19 — ,
to , 19 — , as per judge-advocate's cer-
^ r?
I solemnly swear that the above account is correct ;
that I have not been furnished with Government trans-
portation for any part of the journey for which travel
fare is charged, and that the journey was performed
without unnecessary or avoidable delay.
, Witness.
Sworn to and subscribed before me at , , on
this day of , 19 — .
Judge- Advocate.
Received this day of
paymaster, U. S. Army, —
account, by check No.
[In duplicate.]
— , 19—, of Major ^ ,
dollars, in full of the above
on .
, Witness.
ACCOUNT OF CIVILIAN WITNESS. 165
judge-advocate's certificate.
{On back of form.)
I certify that . a civilian, has been in attend-
ance as a material witness from , 19—, to ■
^ 19 — ^ inclusive, before a general court-martial duly-
convened at this place, and that he was duly summoned
thereto from .
Judge- Advocate.
Place, .
Date, , 19—.
(Note. — If the witness he ''in Government employ,''
these uiords ivill he inserted in the above certificate after
the n^ord " civilian.")
RULES GOVERNING ACCOUNTS OF CIVILIAN WITNESSES.
The Paym aster General is, under paragraphs 1066-1070,
Army Regulations, governed by the following rules in
the treatment of vouchers for travel expenses of civilian
witnesses before military courts :
1. The voucher must be accompanied by a copy of the
order convening the court, with the original summons
in the case, or, if the attendance was authorized by mili-
tary order, by the original order. In the absence of the
original order or summons, certified copies of the same
will be accepted.
2. The affidavit of the witness (on face of voucher) and
the judge-advocate's certificate (on back of voucher) are
required in all cases. The voucher and all accompany-
ing papers must be in duplicate.
3. The items of expenditure authorized in paragraphs
1066 and 1067, Army Regulations, will be set forth in
detail in a memorandum which will be attached to each
voucher. No other items will be allowed. The cor-
rectness of the items will be attested by the affidavit of
the witness, to be made, when practicable, before the
judge-advocate.
166 ACCOUNT OF CIVILIAN WITNESS.
4. The certificate of the judge-advocate will be evi-
dence of the fact and period of attendance, and will be
made on the voucher.
5. Upon execution of the affidavit and certificate the
witness will be paid upon his discharge from attend-
ance, without waiting for completion of return travel.
The charges for return journeys will be made upon the
basis of the actual charges allowed for travel to the
court. *
6. A civilian not in Government employ duly sum-
moned to appear as a witness before a military court
will receive §1.50 per day for each day actually in
attendance upon the court and 5 cents a mile for going
from his place of residence to the place of trial or hear-
ing, and 5 cents a mile for returning ; but in Wyoming,
Montana, Washington, Oregon, California, Utah, New
Mexico, Arizona, and Porto Rico he will be paid 15
cents for each mile necessarily traveled over any stage
line or by private conveyance, and in Porto Rico 10
cents for each mile over any railway in such travel. ^
7. Civilian witnesses in Government employ will
receive as follows :
(a) Amount actually paid for cost of transportation
or travel fare.
(6) Amount actually paid for cost of transfers to and
from railway stations, not exceeding 50 cents for each
transfer.
(c) Amount actually paid for cost of one double berth
in sleeping cars or on steamers where an extra charge
is made therefor.
(d) The actual cost of meals and rooms at a rate not
exceeding $3 per day for each day actually and unavoid-
ably consumed in travel or in attendance upon the court.
8. Travel must be estimated by the shortest available
usually traveled route; the charge for cost of travel
(items a, b, c) by established lines of railroad, stage,
1 Par, 1067, A. R., in accordance with section 848, R. S., act Aug. 3, 1892,
Tol. 2, Sup. R. S., page 65, and act approved March 2, 1901, as to Porto Rico.
ACCOUNT OF CIVILIAN WITNESS. 167
or steamer should not exceed the usual rates in like
cases, the time occupied to be determined by the official
schedules, reasonable allowance being made for cus-
tomary unavoidable detention.
9. The summons, or order for attendance, will be
presumed to show in all cases, by indorsement or oth-
erwise, if transportation in kind or commutation or
rations has been furnished. Transportation in kind
will, for any distance covered thereby, be a bar to pay-
ment of item a. Indorsements of transportation fur-
nished will be scrutinized to ascertain if any part of
item c has been included.
Commutation of rations will be a bar to payment of
item d.
Transportation and commutation of rations will be a
bar to any payment.
10. No per diem allowance can be made where the
attendance upon the court does not require the witness
to leave his station. (This applies to civilians in Gov-
ernment employ. )
1 1 . Compensation to civilians in or out of Government
employ, for attendance upon civil courts, is payable only
by the civil authorities.
12. If a witness is in Government employ the judge-
advocate will state the fact. If it does not appear in the
certificate or elsewhere in the papers, and is not known
to the paymaster, it will be assumed that the witness is
not in Government employ.
13. Whenever needed, judge-advocates can procure
blank accounts for civilian witnesses from any army
paymaster or from the Paymaster General's Office. The
accounts may then be made out upon a witness's dis-
charge from attendance. If no paymaster be present at
the place where the court sits, the accounts, authenti-
cated as above directed, may be transmitted to any pay-
master for payment, with confidence that the witness,
will receive his pay without unnecessary delay.
168 HABEAS CORl>tJS — RETURN.
form for special, orders.
Headquarters Department of ,
Special Orders, )
No. . \
* * * * *
3. Recruit , General Service, U. S. Army,
having been tried by a general court-martial convened
at , and found guilty of fraudulent enlistment,
in violation of the 62d Article of War, was sentenced "to
be dishonorably discharged the service of the United
States, forfeiting all pay and allowances due him, and
to be confined at hard labor at such post as the reviewing
authority may direct, for the i^eriod of one (1) year."
The sentence is approved and will be duly executed.
is designated as the place of confinement, to which
place the prisoner will be sent under proper guard.
By command of Brig. Gen. :
Assistant Adjutant Genercti.
Form A.
HABEAS CORPUS BY UNITED STATES COURT.
RETUUN TO WRIT.
In re . {Name of party held. )
{Writ of habeas corpus — Return of respondent.)
To the . {Court or judge. )
The respondent. Major , U. S. Infantry, upon
whom has been served a writ of habeas corpus for the
production of , respectfully makes return and
states that he holds the said by authority of
the United States as a soldier in the United States Army
(or "as a general prisoner under sentence of general
court-martial") under the following circumstances:
That the said was duly enlisted as a soldier
in the service of the United States at . , on
HABEAS COtlttJS — RETtrtll^. 169
■ , 19 — , for a term of years. {If the offense
is fraudulent enlistment this recital should be omitted.)
(Here state the offense. If it is fraudulent enlistment
by representing himself to be of age, it may be stated as
follows :)
That on the day of , 19 — , at , , the
said , being then a minor, did fraudulently en-
list in the military service of the United States for the
term of years, by falsely representing himself to be
over twenty-one years of age, to wit, years and
months; and has, since said enlistment, received
pay and allowances (or either) thereunder.
(If the offense is desertion, it may be stated substan-
tially as follows :)
That the said deserted said service at ,
, on , 19 — , and remained absent in desertion
until he was apprehended at , , on ,
19 — , by , and was thereupon committed to the
custody of the respondent as commanding officer of the
post of .
That said has been placed in confinement
(or "arrest," as the case may be), charged with said
offense, and formal charges against him therefor have
been preferred, a copy of which is hereto annexed (or
"are being prepared "), and that he will be brought to
trial thereon as soon as practicable before a court-mar-
tial to be convened by the commanding general of the
Department of (or "convened by Special Orders,
No. , dated Headquarters Department of , 19—,
a copy of which is hereto annexed ").
(If the party held is a geiieral prisoner, the following
paragraph should be substituted for the preceding par-
agraph:)
That the said was duly arraigned for said
offense before a general court-martial, convened by
Special Orders, No. , dated Headquarters Depart-
ment of , , 19 — , was convicted thereof by
said court, and was sentenced to be , which sentence
170 HABEAS CORPUS — RETTJUK.
was duly approved on the day of , 19 — , by the
officer ordering the court {or "by the officer command-
ing said Department of for the time being"), as re-
quired by the 104th Article of War. A copy of the
order promulgating said sentence is hereto attached.
In obedience, however, to the said writ of habeas cor-
pus the respondent herewith produces before the court
the body of the said , respectfully refers to the
decisions cited in the annexed brief, and for the reasons
set forth in this return prays this honorable court to
dismiss the said writ.
Major, U. S. Infantry.
Dated , ,
, 19—.
Form B.
HABEAS CORPUS BY STATE COURT.
RETURN TO WRIT.
{Make return as in case of writ by a United States
court, except as to last paragraph, for which substitute
as follows:)
And said respondent further makes return that he has
not produced the body of the said , because he
holds him by authority of the United States as above
set forth, and that this court {or "your honor," as the
case may be) is without jurisdiction in the premises, and
he respectfully refers to the decisions of the Supreme
Court of the United States in Ableman v. Booth, 21
Howard, 506, and Tarble's Case, 13 Wallace, 397, as au-
thority for his action, and prays this court {or "your
honor") to dismiss the writ.
Major, U. S. Infantry.
Dated , ,
. 19—.
itlABEAS CORPUS— BRIEF. Itl
INSTRUCTIONS AS TO llETURNS TO ^VRITS OF
HABEAS CORPUS.
The following instructions in regard to returns under
paragraphs 1074 and 1075, Army Regulations, in the cases
of soldiers who have committed military offenses and
are held for trial or punishment therefor, and of general
prisoners, are for the information and guidance of all
concerned :
1. The return under paragraph 1075, Army Regula-
tions, will be made in accordance with Form A (see
page 168, ante), and will refer, as in last paragraph of
that form, to the brief of authorities which follows
these instructions, and a copy of that brief will be an-
nexed to the return. Should the court order the dis-
charge of the party, the officer making the return, or
counsel, should note an appeal pending instructions
from the War Department, and he will report to the
Adjutant General the action taken by the court and
forward a copy of the opinion of the court as soon as it
can be obtained,
2. The return under paragraph 1074, Army Regula-
tions, will be made in accordance with Form B (see
page 170, ante) , but a copy of the brief of authorities is
not intended to be attached to the returns to writ of
habeas corpus issuing from a State court.
BRIEF TO BE FILED WITH RETURN TO A TVRTT
OF HABEAS CORPUS ISSUED B\" UNITED STATES
COURT IN CASE OF A SOLDIER WHOSE DIS-
CHARGE IS SOUGHT UNDER SECTION 1117, RE-
VISED STATUTES.
If a minor sixteen years old or over claims to be
twenty-one years of age or over and enlists without the
consent required by section 1117, Revised Statutes, the
contract of enlistment is not voidable by the minor, nor
by his narents or guardian, if at the time of the filing
1*^^ HABEAS CORt»US — BtllEF.
of the petition the soldier is held in pursuance of a sen-
tence of a court-martial, or any step has been taken with
a view to bringing him before such court.
1. Contract not voidable by minor.
(a) Wlien soldier is not in confinement. — United States
ex rel. Wagner v. Gibbon, 24 Federal Reporter, 135. In
this case Wagner, becoming "tired of the service,"
sought his discharge from the Army "solely on the
ground of minority at the time of enlistment." This
the court refused to grant, holding that section 1117,
Revised Statutes, ' ' was made for the exclusive benefit
of parents and guardians," and that, quoting from the
syllabus —
A minor over sixteen years of age, who at the time of his enlistment
makes affidavit that he is twenty-one years of age, will not, on his own ap-
plication, be released on habeas corpus on the ground that he was a minor at
the time of his enlistment, and that the written consent of his guardian was
not obtained.
(&) When soldier is in confinement. — In re Morrissey,
137 United States, 157; In re Grimley, 137 United States,
147 ; In re Wall, 8 Federal Reporter, 85 ; In re Davison,
21 Federal Reporter, 618 ; In re Zimmerman, 30 Federal
Reporter, 176 ; In re Hearn, 32 Federal Reporter, 141 ;
In re Spencer, 40 Federal Reporter, 149 ; In re Lawler,
40 Federal Reporter, 233 ; Solomon v. Davenport, 87 Fed-
eral Reporter, 318.
In the Morrissey case the Supreme Court of the United
States settles this beyond question. Morrissey, a minor
of seventeen years of age, enlisted without the consent
of his mother, who was living. He deserted, remained
in concealment until he reached his majority, and then
presented himself before a recruiting officer and de-
manded his discharge from the Army on the ground
that he was a minor when enlisted. The court said that
the provision of section 1117, Revised Statutes —
is for the benefit of the parent or guardian, * * * but it gives no privi-
lege to the minor. * * * An enlistment is not a contrfict only, but effects
a change of status. It is not, therefore, like an ordinary contract, voidable
HABEAS CORPUS — BRIEF. 173
by the infant. * * * The contract of enlistment was good so far as the
petitioner is concerned. He was not only de facto, but de jure, a soldier —
amenable to military jurisdiction.
All the cases cited are instructive as illustrative of the
different circumstances under which this principle has
been declared.
In the Lawler case the deserter was arrested and * ' held
as such awaiting trial, which will be as soon as a court-
martial can be convened and organized for that pur-
pose."
In the case of Solomon v. Davenport, the deserter was
held by a sheriff under a warrant of a United States
commissioner.
In the Spencer case the court said :
The authorities which have been read to me seem to establish very con-
clusively this rule — that the enlistment of a minor is voidable, not neces-
sarily void; and that he does really become by such enlistment, although
under age, engaged in the service of the United States, and subject to the
power aud jurisdiction of the military authorities; and, such being the case,
the court-martial had jurisdiction to arrest and try him for the charge of
desertion.
2. Contract not voidable by parents or guardians
IF the soldier is held pursuant to a sentence
OF a court-martial or any step has been taken
with a view to bringing him before such court.
In re Kaufman, 41 Federal Reporter, 876 ; In re Dohren-
dorf, et al., 40 Federal Reporter, 148; In re Cosenow, 37
Federal Reporter, 668 ; In re Dowd, 90 Federal Reporter,
718 ; Ex parte Anderson, 16 Iowa, 595 ; McConologue's
case, 107 Massachusetts, 170.
In the Kaufman case, the father sought the discharge
of his son, who was held by the military authorities and
had been ordered before a military court for trial as a
deserter. Quoting from the syllabus :
A minor who enlists in the United States Army upon his representation
that he is of age, and receives pay and clothing and afterwards deserts and
is arrested as a deserter, and at the time of his petition is held by the United
States awaiting trial by a court-martial for the crime of desertion, will not
be released under a writ of habeas corpus upon the ground that being a minor
his enlistment was unlawful and contrary to the Revised Statutes of the
United States.
174 HABEAS CORPUS— BRIEF.
In the Cosenow case the minor swore that he was
twenty-one years and seven months old at the time of
enlistment. He deserted, and at the time of the filing
of the petition was held in custody awaiting the action
of the reviewing authority on the proceedings of the
court-martial. His father sought the discharge of his
son on the ground of infancy at the time of enlistment.
The court refused to discharge him, holding that "an
enlistment contrary to law is not void, but voidable ;"
that the court-martial had jurisdiction of the offense,
and the soldier "must be remanded to await the result
of his trial."
The Dowd case arose on the application of the mother
for the release of her son, who was held under sentence
of a summary court. The court held, quoting from the
syllabus :
The enlistment of a minor in the Army without the consent of hiB parents
or guardian, required by Kevised Statutes, section 1117, is not void, but
voidable only, and while ho remains in the service under such enlistment
the minor is amenable to the Articles of War, and can not be remanded to
the custody of his parents by a civil court on a writ of habeas corpus while
undergoing a sentence imposed onhimby a court-martial for ayiolation of
such articles.
In the Anderson case it appears that a minor enlisted
without his father's consent, and being held for trial
before a court-martial for desertion, his father sought
his discharge on habeas corpus. The court refused to
discharge the soldier, saying ' ' he must abide by the deci-
sion of the latter court (court-martial) before the ques-
tion of the validity of his enlistment can be determintd
in the civil courts on habeas corpus."
In McConologue's case the court said :
A minor's contract of enlistment is indeed voidable only and not void,
and if, before a writ of habeas corpus is sued out to avoid it, he is ax-rested
on charges of desertion, he should not be released by the court while
proceedings for his trial by the military authorities are pending.
Under the custom of the service the parents or guar-
dian of a minor who enlists without their consent can
obtain his discharge upon application to the Secretary
of War, prior to the commission of a military offense.
HABEAS CORPUS — BRIEF. 175
Their right under section 1117, Revised Statutes, are
thus sufficiently protected; but when the minor has
committed a military offense the interests of the public
in the administration of justice are paramount to the
right of the parent, and require that the soldier shall
abide the consequences of his offense before the right to
his discharge be passed upon. (Digest Opin. J. A. G.,
§§ 1258 and 1264, and notes. )
The soldier should not be allowed to escape punish-
ment for his offense, even though his parents assert their
right to his services. A minor in civil life is liable to
punishment for a crime or misdemeanor, even though
his confinement may interfere with the rights of his
parents.
INDEX.
Abatement of pnnishment: Page,
for good conduct in confinement 67
Absence :
of member from meeting of court ^_ 22,138
See Department commander.
Absence without leave:
eflfect of conviction of, on reward for apprehension 47
finding of, under charge of desertion 43
from camp, 1 mile 100
from duty as company or hospital cook 53
from fatigue, extra, or special duty 53
from parade, etc., forms for charges 127
from parade, etc., limit of punishment 51
from parade, etc., offense of 100
from troop, etc., form for charge _. 127
from troop, etc., limit of punishment 50
from troop, etc., offense of 100
Abuse of authority :
by noncommissioned officer, limit of punishment 54
Accounts :
of witness, form for 164
of witness, rules governing ^ 165-167
of witness, to deposition 38
Acconterments :
accountability for 95
selling, losing, etc., form for charge 125
selling, losing, etc., limits of punishment 49
selling, losing, etc., offense of 96
Accused :
arraignment of 31, 140
challenge by, how allowable 27
challenge by, how recorded 139,140
consent of, to trial by summary court - 75
entitled to counsel before general court 25
entitled to have witnesses summoned 33
judge-advocate, how far counsel 23
stands mute 32
to be advised of his rights 23
uniform of, before court 21
will not appear in irons . : 21
12916 12 (177)
178 INDEX.
Accuser: Page.
can not convene general court 13
can act as summary court 71
challenge of member on ground of being 27
should not act as judge-advocate 28
Acquittal :
effect of, on reward for apprehension 47
finding in case of virtual 44
form for recording 146
Acting assistant surgeon :
ineligible as member of court 11
Action on proceedings. See Proceedings.
Additional charges:
can not be introduced after arraignment, etc_ 20
Adjournment:
daily, signed by judge-advocate 24
final, signed by president and judge-advocate 24
Advising desertion :
offense of 102
Alarms :
false, offense of occasioning 101
Ammunition :
offense of purchasing, from soldier, etc 106
offense of wasting, selling, etc 96
Appeal :
from regimental to general court 99
Appointing authority. See Convening authority.
Arms:
accountability for 95
offense of casting away 101
offense of making false return of 94
offense of selling, losing, etc 90
offense of selling, losing, etc., limits of punishment 49
Arraignment :
accused and judge-advocate stand 31
accused not to be in irons at , 21
accused stands mute at, action by court 32
additional charges not introduced after 20
form for recording 140
procedure for 31
Arrest :
applications of officers in 7
breach of, by officers ; 107
general provisions regarding 9
of deserters, reward for - .— 47
INDEX. 179
Arrest— Continued. Page,
of officers 6, 107
of soldiers 8
protracted, a ground for mitigation 64
Arson :
offense of, in time of war . 104
Articles of war:
armies of United States governed by 93
officers shall subscribe 93
read once in six months to troops 118
read to recruits 93
Assault with intent to liill :
form for charge 133
limit of punishment 52
Assembling of court:
procedure on . 20
Attachment of witness. See Witness and Wan-ant of attachment.
Attendance of witness. See Witness.
Authentication of proceedings. See Proceedings.
Authority :
abuse of, by noncommissioned officers 54
Autrefois acquit :
plea of 32
Ball and chain :
as punishment 46
punishment by, in extreme cases only 46
report of use to department commander 65
Branding of soldiers :
forbidden 113
Breach of arrest :
by officers 107
Bread and water diet:
confinement on, as punishment 46,47
Bribes :
officer taking 94
Burglary :
offense of, in time of war 104
under 62d Article, form for charge 134
under 62d Article, limit of punishment 1 52
Cadets. See Military Academy.
180 INDEX.
Camp: Page.
introducing liquor into, limit of punishment 53
lying out of, without leave 99
retainers of, jurisdiction over 15
soldiers one mile from, without leave 100
violence to persons bringing provisions to 103
Candidate for promotion :
punishment of 46
triable by general court only 15
Capital crime :
desertion in time of peace not a 39
meaning of 39
Captured stores:
disposition of 95
Casliiering:
meaning of 95
Certificates :
penalty for signing false 96
Challenge {of member of court) :
absent during evidence, not to sit 28
court determines validity of 27
grounds for 27,28
in absence of, member how excused 28
judge-advocate not challengeable 28
record in case of 139,140
summary coui-t not subject to 27
Challenge {to fight duel):
duty to refuse 98
sending, accepting, etc 98
upbraiding for refusing 98
Chaplains:
not detailed as members of courts 11
Charges:
accompanied by what 19
act charged under two or more forms 19
additional 20
consideration of, by post commander 19
correction of, by judge-advocate 23
delay in trial by summary court on 72
forms for 125
instructions for drawing 16-18
investigation of 19
joint, when 17
prisoners without written, when released 9
requisites of 16
service of, upon oflBcer arrested 7
INDEX. 181
Charges — Continued. Page.
specifications, how drawn > 18
specifications, not in alternative 19
striking out, withdrawing, etc 19,20
to show consent to trial by summary court 75
to whom submitted , 19
when and by whom submitted 9
Civil court :
can not review proceedings of military IS
military, ordinarily, gives precedence to 14
previous convictions by, inadmissible 45
CItII crime :
act as being both military offense and .- 14
Civil magistrate :
delivery of accused oificer or soldier to 104
Clemency :
certain applications for 63
Clothing:
form for charge for selling 125
limit of punishment for selling 49
limit of punishment for losing or spoiling 49
offense of selling, losing, etc 19,96
Closed session :
judge-advocate excluded 25
Company commander:
arrest or confinement of soldiers reported to 9
copy of summary court record furnished to 76
Commanding officer:
disrespect to, limit of punishment 50
disrespect to, offense of 97
instructions to, regarding summary courts 75
may authorize departure of certain witnesses 39
must investigate charges 19
power to order court of inquiry 116
refers or forwards charges 19
report of prisoners to 9
Command :
suspension from, as punishment 46
when different corps join 117
Commands:
ofiicers to keep good order in 103
Commutation of punishment:
power of roviewinst authority ^* 63
182 INDEX.
Company cook : Page,
limit of publishment for absence from duty as 53
limit of punishment for drunkenness on duty as 51
Composition of courts-martial. See Courts-martial.
Conduct to the prejudice, etc. :
forms for charges 131
instruction regarding charges 17
limits of punishment 52
Conduct unbecoming, etc. :
form for charges 131
instructions regarding charges of 17
Confinement before trial :
enlisted men in, how designated 8
general provisions regarding 9
long, aground for mitigation 64
of officers 7
of soldiers 8
report of, to soldier's company commander 9
Confinement after trial :
abatement allowed „» 67
enlisted men in, how designated 65
forms for sentence to 158
general prisoners examined when released 67
on bread and water diet 46, 47,67
personal eifects of escaped prisoners 66
prisoners forwarded to place of 65
prisoners put in irons, report made 65
second sentence to, begins when 67
sentence to, begins when 67
separation of prisoners in 65
solitary, duration of 57
Constitution of courts-martial. See Courts-martial.
Contempt :
courts-martial may punish for 111
Continuance. See Postponement.
ConTening authority:
control of, over court 13
decision of, as to number of members 12
effect of absence on appointing power 13
of garrison court 76
of general court 12, 13
of regimental court 77
of summary court 71
prosecutor can not convene general courts 13
report to, when court is below minimum 12
the President as 12
the Superintendent, U. S. Military Academy, as — _-. 13
INDEX. 183
CoDTenin^ order. Page.
for garrison court 151
for general court 137
for regimental court 153
ConTictions. See Previous convictions.
Correction of proceedings. See Revision of record.
Correspondence :
with the Judge-Advocate General; 69
with the enemy 101
Counsel for accused :
argumehts of, oral or written 26
by whom detailed 25
duties of 25
introduction of, before court 139
judge-advocate, how far 23
questions of, oral or written 26
Courts-martial :
all troops subject to trial by 14
assembling of 20
authority over charges 19
can not excuse member 28
can not order nolle prosequi 20
civil courts can not review proceedings of 13
classification of 12
composition of 11
control of convening authority over 13
hours of session repealed 112
inferior 12
jurisdiction of, as affected by act of accused 15
jurisdiction of, derived from acts of Congress 13
jurisdiction of, exclusive over military offenses 14
jurisdiction of, how extended in time of war 15
jurisdiction of, not affected by territoriality 14
jurisdiction of, over acts both civil crimes and military offenses.- 14
jurisdiction of, over offenses 14
jurisdiction of, over persons 14
jurisdiction of, statute of limitation as affecting 33
jurisdiction of, when ended 14
may punish for contempt 111
object of, as military tribunal -6
organization of 20
garrison courts-martial —
appointed in what commands 76
appointed when 77
composition, etc., of 76
disposition of proceedings of . ^ . 70
184 INDEX.
Courts-martial— Continued. Tage.
Garrison courts-martial — Continued.
form for order and record 151
limit of punishing power 77, 110
testimony, etc., will not be recorded 77,152
' General courts^narlial —
appeal from regimental court to 99
closed session of 25
composition of 11
constituted by whom 12,13
disposition of proceedings of 69
form for order and record 137
jurisdiction of . 15
procedure of 21
record of, copy furnished accused 69,116
record of proceedings 59
revision of record 61
Regimental courts-martial —
composition, etc., of 77
disposition of proceedings of 70
form for order and record . 153
limit of punishing power 77,110
testimony will not be recorded 77
under 30th Article of War L 99
Summary courts —
accuser can act as 71
act establishing-. 120
composition, etc., of 71
copies of record, furnished company commanders 76
delay in trial by 72
discretion as to trial by 72
general instructions regarding 75
hours of session 75
jurisdiction of 72
limit of punishing power 71, 74, 110
may be held on Sunday in emergency 75,76
monthly report of cases tried, form for 150
names of officors who act as, reported 76
not challengeable 27
power of 72
previous convictions considered by 73
procedure of 73
record, form for 149
report of cases tried bj', to be made monthly 70
reviewing authority of. 74
INDEX. 185
Courts of Inquiry : Page.
authentication of proceedings of 81, 117
composition of 80,116
constituted by whom 79, 116
form of convening order 80
how ordered 116
jurisdiction of 79
oath of members and recorder 80,116
object of, as a military tribunal 6
opinion of, when given 80, 117
organization of 80
procedure of 80
record of, as evidence 117
record of proceedings 81
reporter for, employment of 80
witnesses before 80, 116
Cowardice :
offense of 101
sentence for, how published 113
Crime :
actas being both military offense and civil 14
capital, desertion in time of peace not a 39
capital, offender delivered to civil magistrate 104
during rebellion, etc 104
officers accused of, subject to arrest 107
of fraud against the United States 105, 106
soldiers accused of 107
to the prejudice, etc 106
Criminals :
enlistment of, prohibited 93
Customs of War :
as affecting punishment 57
as part of unwritten military law 6
Days:
meaning of word in sentence 67
Deatii, sentence of:
confirmation of 114
suspension of 63,115
vote upon 58
Deceased soldiers:
disposition of effects of 118
Defects In proceedings. See Revision of record.
Defense:
how far assisted by judge-advocate ^ ^ ^ 25
186 INDEX.
Delay : Page.
in trial by summary court 73
when and by whom granted 30
department commander :
as accuser or prosecutor 13
authorized to convene courts 13
authorized to review proceedings 62
can not delegate his function as reviewing authority 62
charges forwarded to 19
effect of absence of, on appointing power 13
may permit trial of sergeants by inferior courts IG
report of irons on prisoner to 65
Deposition :
duty of officer ordered to obtain 37
fees of civil officer taking 163
form for 162, 163
may be taken before court assembles - 38
oath to, by whom administered 38
pay accounts of witness giving 38
procedure to obtain 37
submission to court 38
when admissible 37,112,162
when not admissible 37,39
Deprivation of privileges :
of "candidate for promotion" 46
Deserter :
enlistment of, prohibited 93
from Navy or Marine Corps 33
harboring, offense of 102
surgeon's report to accompany charges against 19, 136
to serve full term 102
who is apprehended, limit of punishment 49
who surrenders, limit of punishment 48
Desertion :
■ after tendering resignation . 102
by enlistment in another regiment 102
evidence of, after plea of guilty 31,32
form for charge of 129
in time of peace, not a capital offense 39
limits of punishment 48,49
offense of 101
offense of advising or persuading 102
previous convictions of 49, 56
statute of limitation for 33,114
INDEX. 187
Discharge, dishonorable : Page.
form for sentence of - - 158
of an oflBcer for cowardice or fraud 113
of post noncommissioned staff and hospital steward 57
on account of conviction of two or more offenses 56
on account of previous convictions 56
postponement of date fixed by sentence C4
Discharge from service :
how made 94
Dismissal :
by court-martial, appointed by division or brigade commander.. 115
for cowardice, etc., where published 113
in time of peace, sentence confirmed 114
of general officers 115
suspension of sentence of 63,115
Disobedience of orders :
involving defiance of noncommissioned officer 53
of a noncommissioned officer, form for charge 132
of a noncommissioned officer, offense under 62d Article 126
of a sentinel, limit of punishment 54
of an officer, etc., quelling fray, limit of punishment 50
of an officer, etc., quelling fray, offense of 98
of an officer, form for charge 126
of an officer, offense of 97
simple neglect of standing order 126
Disorderly conduct In quarters ;
limit of punishment 54
Disorders and neglects :
offenses under 62d Article 106
Disposition of records :
of general courts .^ 69
of inferior courts _ 70
Disrespect :
regarding President, etc., offense of . 97
to commanding officer, limit of punishment 50
to commanding officer, offense of 97
to sentinel, limit of punishment 54
Divine service :
irreverent behavior at 102
officers etc., recommended to attend 102
Double amenability:
in case of disorder near post 54
to civil and military jurisdictions 14
188 INDEX.
Drunkenness : Page.
at guard mounting 17
at post or in quarters, limit of punishment 53
not on duty, offense under 62d Article . 17
on duty, form for charge 128
on duty, limits of punishment 51
on duty, offense under 38th Article.^ 17,100
Drunkenness and disorderly conduct:
form for charge 132
limits of punishment 53,54
near post causing conviction by civil authorities 54
Duel:
challenge to fight 98
sending, accepting challenge, etc 98
upbraiding for refusing challenge ; 98
Duty:
conniving at hiring 100
hiring 100
Effects :
of deceased officers and soldiers 117,118
of escaped prisoners 66
Embezzlement :
of United States property 52,106
offense under 62d Article, limit of punishment 52, 53
specifications for, to state value of property 52
Enemy:
correspondence v<rith 101
misbehavior before 101
relieving, harboring, etc 101
trading with 119
Enlistment :
fraudulent, definition of 14
fraudulent, forms for charges 129, 133
fraudulent, limits of punishment 53
fraudulent, offense under 62d Article 107
oath of 93
of certain classes prohibited 93
unlawful, penalty for making 93
Escape of prisoner:
disposal of effects of prisoner 66
effect on jurisdiction of court 15
form for charge for suffering . 132
limit for suffering 54
Evidence :
common law rules of, ordinarily followed 42
proceedings of court of inquiry as..^. , ^ .^ ^_ 117
INDEX. ' 189
Examination of witness. See Witness. Page.
Experts;
employment and pay of 40
Exposure of person :
limit of punishment 54
False alarms :
penalty for creating ^ 101
False certificate:
penalty for signing ; 96
F^lse muster:
penalty for making - 94, 96
penalty for signing, etc., roll containing 96
False report:
by noncommissioned officer, limit of punishment 54
False return:
penalty for making 94
False swearing :
distinguished from perjury 135
limit of punishment 52
Fees of witness. See Witness.
Finding :
in case of virtual acquittal . 44
of guilty of lesser kindred offense 43
of guilty of part of specification 43
of guilty under general instead of specific article 44
reviewing authority can not change 44
Fine:
as a punishment 46
See Forfeiture of pay.
Flogging:
prohibited 46,113
Forcing a safeguard :
offense of 104
Forfeiture of pay :
as a punishment 46
can be made only in favor of United States 47
for irreverent behavior 103
for profanity 103
forms for sentences to 158
of amount paid for apprehension ^ 47
remission of sentence 64
Forgery :
under 60th Article, limit of punishment -. 52
under 62d Article, limit of punishment 52
190 INDEX.
Former trial : Page.
plea of » 32
Forms :
for account of civilian witness 164
for charges 125
for interrogatories and deposition 162, 163
for monthly report of summary court cases 150
for record book, for summary court ^ 149
for record of garrison court 151
for record of general court 137
for record of regimental court 153
for return to habeas corpus of State court 170
for return to habeas corpus of United States court 168
for revision of record, general court 148
for sentences 158
for special order publishing proceedings 168
for statement of service 136
for subpoena duces tecum 160
for subpoena for civilian witness 159
for summons for military witness 159
for surgeon's report on alleged deserter 136
for warrant of attachment 161
Fort Leavenworth, Kans. :
penitentiary for general prisoners 63, 64
Fraud :
administration of oaths in investigation of 30,123
offenses of, under 60th Article 105
oflScer dismissed for 113
Fraudulent enlistment. See Enlistment.
Frays :
power to quell . 97
refusing to obey oflBcer, etc., quelling, limit of punishment 50
Gambling:
encouragement of, by noncom. officer, limit of punishment 54
Garrison court-martial. See Courts-martial.
Garrison prisoners:
who designated as 65
General and special orders :
as part of written military law 6
publishing proceedings 64
General court-martial. See Courts-martial.
General officers:
power of, to convene courts 13
sentences regarding 115
INDEX. 191
Ueneral prisoners: Page.
examined •when released 67
who designated as 65
Good conduct in confinement:
abatement for 67
Good order:
officers to keep, in their commands 103
Grievances :
of officers 99
of soldiers 99
redress for 99
Guard :
drunkenness on, form for charge 128
drunkenness on, limit of punishment 51
drunkenness on, offense of 100
for prisoners conveyed to place of confinement 66
member of, drinking wit*!! prisoner, limit of punishment 54
prisoners delivered to, charges against 9
prisoners under charge of, when released 9
quitting, form for charge 128
quitting, limit of punishment 52
quitting, offense of 100, 101
Guard duty :
as a punishment, forbidden 47
Guard mounting:
drunk at, limit of punishment 51
Habeas corpus:
forms for return to writ of 168-170
instructions as to returns 35, 68, 171
minority as a ground for, brief 171
officers served with, action required 35,68
writ issued by State court 35, 68, 171
writ issued by United States court 35, 68, 171
Harboring :
deserter 102
enemy 191
Hard labor :
as a punishment 46
forms for sentences to 158
power of inferior court to award 110
Hiring duty. See Duty.
Horse :
limit of punishment for losing or spoiling 49
limit of punishment for selling 49
offense of selling, etc 96
19? INDEX.
Hospital cook : Page.
limit of punishment for absence from duty as 53
Hospital steward {noncommissioned officer above rank of corporal):
arrest of 8
confinement of 8
jurisdiction over • 15
may be discharged, but not reduced 57
punishment of 57
Hours of session:
article prescribing, repealed 112
not to interfere with routine duties 20
of summary court 75
record of 138
Indecent exposure :
limit of punishment 64
Inferior courts-martial : ^
courts so designated 12
disposition of records of : 70
instructions regarding 12
punishing power 110
Inquiry, Courts of. See Courts of inqniry.
Insane or intoxicated person :
enlistment of 93
Insubordination :
toward noncommissioned officer, limit of punishment 53
Interpreter:
employed by order of court 27
oath of. -• 29
pay of 27
record relating to 140
Interrogatories and deposition. See Deposition.
Introducing liquor into camp, etc. :
limit of punishment 53
Irons on prisoner :
as a punishment — 4G
removed on arraignment 21
reported to department commander G5
IrrcTerent behavior :
at divine service 102
Joint charges :
when allowed 17
INDEX. 193
Judge- Advocate General: Page.
applications to, for copies of records 69
correspondence with 69
proceedings in certain cases forwarded direct to 69
revises and preserves records of general courts 69
Judge-adTocate of court-martial:
appointed by whom 20,109
authorized to adm-nister certain oath8______ 28,112
correction of charges by 23
duties of 23
new judge-advocate, record regarding 60
not challengeable 28
oath of 29
subpoenas by, how sent 34
subscribes daily record, etc 24
warrant of attachment issued by 35
withdraws when court is closed 25
witnesses summoned by 33
Judgo-advocate of department:
authorized to administer certain oaths 30,112
custodian of records of inferior courts 70
Jurisdiction of courts-martial. See Gomis-mnrtial.
Larceny:
by soldier from civilian 18
forma for charges of 130, 134
offense of, in time of war 104
offense under G2d Article, limits of punishment 62,63
specifications for, to state value of property 62
Law of hostile occupation :
definition of 5
Laws of the land:
municipal ordinances, part of 104
Leaving post:
form for ciiarge 128
offense of 100
Lewd exposure :
limit of punishment 54
Limitation, Statute of:
advantage of, how taken — 33
effect of, on jurisdiction 33
Limits of punishment. See Maximum limits of punishment.
Liquor:
introducing into camp, etc., limit of punishment 53
Log:
punishment by carrying heavy, prohibited 46
12115 13
194 INDEX.
Losing or spoiling: ' Page,
accouterments or clothing, through neglect, limit of punishment- 49
accouterments or clothing, through neglect, offense of 90
horse or arms, through neglect, limit of punishment 49
horse or arms, through neglect, offense of 96
Loss of rank :
as a punishment 46
Lying out of quarters :
offense of 99
Manslaughter:
offense of, in time of war 104
under 62d Article, limit of punishment 52
March :
different corps, etc., on the 117
Marine Corps:
deserter from 33
officers of, as members of courts 11
Marking:
as a punishment, forbidden 46, 113
Martial lair :
as a domestic fact, definition of 5
as applied to the Army, definition of 5
Maximum limit of punishment:
by whom prescribed 48
effect of previous convictions on 55, 56
for desertion 49,50
for offenses in general 55
of noncommissioned officer 56
of soldier convicted of several offenses 56
offenses not mentioned 55
Mayhem :
offense of, in time of war 104
Medical officer :
arrest of 7
report of, in case of deserter 19
report of, in case of general prisoner 67
report of, form, for 136
Members of courts-martial :
absent, communicate cause to judge-advocate 22
absent during evidence, not to sit 28
assembling of 20
behavior of 21, 22
court can not excuse from sitting 28
duty of judge-advocate to ascertain cause of absence of 138
liable for other duty 22
INDEX. 195
Members of courts-martial— Continued. Page.
named in order of rank..., 21
new member « 60
oath of 28
questions by, how recorded 142
quorum for general court 12
seating of 21
uniform of 20
votes of, how given 22
who are eligible as 11
who believe themselves disqualified 28
Member of guard :
driulsing liquor with prisoner, limit of punishment 64
Military Academy :
cadets not triable by inferior courts , 15
professors not eligible as members of courts 11
superintendent may convene courts for cadets 13
Military commission :
object of, as military tribunal 6
Military discipline :
couduct to prejudice of, forms for charges 131
conduct to prejudice of, how charged 17
conduct to prejudice of, limits of punishment 52
crimes, disorders, and neglects to the prejudice of 106
Military gOTcrnment:
definition of 6
Military jurisdiction :
how 8ul>divided 5
source of 6
Military law :
definition of 5
sources of 5, 6
Military tribunals:
classification of 6
Militia:
^ not triable by officers of Eegular Army 11
officers as members of courts 11
officers in United States service, rank of 117
Minimum :
report if court is below 12
Minors :
offense of enlisting, without consent of parents 93
See Habeas corpus.
Misbehavior before enemy:
offense of 101
196 INDEX.
Misconduct in time of trar : Page.
abandoning post, etc 101
casting away arms, etc 101
changing parole or watchword 101
correspondence with enemy 101
cowardice 101
disclosing parole or watchword, etc . 101
false alarms 101
forcing safeguard 104
intelligence to enemy 101
misbehavior before enemy 101
pillage 101
quitting colors 101
relieving or harboring enemy 101
various crimes..^ 101
Mitigation of sentence:
of gt-noral court 62, 6!i
of prisoner long confined before trial 64
of summary court 74
Motion to strike oat:
action of court in case of 19
Municipal ordinances:
part of " laws of the land" 104
Murder :
offense of, in time of war 104
Muster, false :
offense of making 94,96
offense of signing, etc., roll containing 96
Mustering :
persons not soldiers as soldiers 94
receiving money, etc., for 94
Mutiny :
beginning, exciting, etc :_ 97
compelling commander to surrender 101
failing to report and suppress 97
Navy:
deserter from 33
Neglect of duty :
by sentinel, limit of punishment 54
causing damage to public property 96
form for charge 131
in failing to care for captured property 95
in failing to surrender criminals 104
to the prejudice of good order, etc 106
INDEX. 197
New member: Page.
if evidence in, not to sit 28
record regarding 60
Noisy or disorderly conduct in quarters :
limit of punisliment 54
Nolle prosequi:
court can not order 20
judge-advocate can not enter 23
Noncommissioned officer :
abuse of authority by, limit of punishment 54
arrest by, under 24th Article 97
arrest of 8
confinement of 8
disobedience of orders of, charged under 62d Article 126
disobedience of orders of, form for charge 132
disobedience of orders of, limit of punishment 53
encouraging gambling, limit of punishment 54
insubordination to, limit of punishment 53
jurisdiction over, by general court 15
jurisdiction over, by inferior court 16,53
limit of punishment of 56
making falsa report, limit of punishment 54
punishments for 46
reduction of, by summary court 74
reduction of, post noncommissioned staff, etc 57
using threatening or insulting language to 53
using violence to, etc., when quelling quarrel 50
Oaths:
court must be sworn at each trial 28
for purposes of military administration 30, 112
in investigation of frauds, etc 30,123
of enlistment 93
of members, judge-advocate, etc., of courts-martial 28,29
of members, recorder, etc., of courts of inquiry 80,116
procedure during administration of 28
profane, penalty for using 103
to deposition 38
Objection :
to question how recorded 142
Offense :
act as both civil crime and military 14
against person or property of civilian 104
joint charges for 17
jurisdiction as regards 15
no person tried twice for same 113
198 INDEX.
Offense— Continued. Page.
not capital and to the prejudice, etc 106
ordinary, limit of punishment for 48
penitentiary ^_ 48,113
statute of limitation for 33, 113
Officer:
charged with crime to be arrested C, 107
in arrest furnished copy of charges , 7, 108
jurisdiction over retired ..- 14
meaning of word in Articles of War 93
retirement of. See Retirement of officers.
to keep good order in his command 103
Officer of day :
duties respecting prisoners and charges . 9
Orders :
convening. See Convening order.
general and special publishing proceedings 65
neglect to comply with standing 126
of a noncommissioned officer, disobedience of 120, 131
of an officer, disobedience of 97
of an officer, disobedience of, form for charge 126
trials by summary court not published in 73
Organization :
of courts-martial 20
Pardon :
by the President 62
by the reviewing authority 62, 74, 115
of penitentiary prisoners 62
Parole :
penalty for changing 101
Pay:
false certificate relating to, penalty for signing 96
forfeiture of, as a punishment 46
forfeiture of, only in favor of United States 47
of civilian witness, giving deposition 38
of civilian witness 40,122
of civilian witness, tender of . 34,40,122
of interpreter 27
of officer, suspension of 113
of reporter 26
of soldier awaiting sentence 64
of soldier can not be assigned by sentence 47
of soldier, detention and retention not authorized 158
INDEX. 199
Pay Department: Page.
civilian witness paid by 37,41,122,1(57
form of, for account of civilian witness 164
instructions regarding payment of witness 165
interpreter and reporter paid by 26, 27
Penitentiary :
clemency for prisoner confined in 62
confinement in, limit of 47
confinement in, offenses punishable by 47,48,113
erroneously designated in sentence 63
for military prisoners, at Fort Leavenworth, Kans 64
sentence to confinement in, mitigation of 62
sentence to confinement in, what to state 58
sentence to confinement in, when legal 58
unless sentence authorizes, confinement in, illegal 63
when department commanders may designate 63
Perjury :
false swearing distinguished from 135
form for charge 135
limit of punishment , 52
Persuading soldier to desert:
limit of punishment 52
offense of 102
Plea:
accused stands mute 32,112
of guilty, statement inconsistent with 32
of guilty, testimony after 32
special, of second enlistment 33
special, of statute of limitation 33
special, procedure in case of 33
special, to the jurisdiction, etc 32
Post:
abandoning, etc lOl
sentinel sleeping on or leaving 100
sentinel sleeping on or leaving, forms for charges 128
Post commander :
charges laid before the 10
charges usually presented to, by old officer of day 9
determines when and what cases go to summary court 72
forwards chatges for serious offenses 19
forwards completed proceedings of certain courts 70
furnishes company commanders copies of summary court record. 76
furnishes detail to execute warrant of attachment 35
may use discretion regarding trial for minor offenses 75
must act as summary court in certain cases 71
must personally investigate charges forwarded 19
refers charges for minor offenses to summary court 19
reports number of cases tried by summary court 70
200 INDEX.
Post noncommissioned staff: l^age.
may be discharged but not reduced 57
unless they object, may be tried by inferior courts 16, 57
See also Noncommissioned officer.
Postponement :
application for, when made 30
extended delay wanted 31
on account of absent witness 30
Post return :
officers who act as summary court, reported on 7(5
Precedence :
mllittvry ordinarily gives, to civil court 11
President of a court -martial:
duties of 22
the officer highest in rank on court 22
President of the United States:
as confirming authority C2
as convening authority 12
as reviewing authority 62, 63
limits of punishment prescribed by , 48
may order courts of inquiry 110
must appoint court in certain cases 13
l)ardoning power of 02
proceedings of courts appointed by, forwarded to Secretary of
War 09
proceedings of courts to be confirmed by, forwarded to Judge-
Advocate General 09
using contemptuous words regarding 97
Previous convictions:
by civil court, inadmissible 45
by courts-martial, evidence of 45,55
consideration of, by general court 19
consideration of, by summary court 73
effect on punishment 45, 55
evidence of, how recorded 110,149
evidence of, submitted with charges 19,55,73
evidence of, when admissible 55
evidence of, when received by court 45
meaning of 44
not limited to those for similar offenses 4'>
proper evidence of 45,55
Prisoners :
Abatement allowed , 67
confinement of, after trial 05
confinement of, before trial 8
<>m)nsAl for - 25
Prigoners— Contiuued. Page.
deceased, effects of ^ — 118
duty of oflQcer receiving 9
escaped, effects of . 66
forwarded to place of confinement ._ 65
general, physically examined when released _, 67
not to be arraigned in irons . 21
penitentiary, clemency for , 62
placed in irons, report regarding 65
releasing without authority, offense of — _ 107
report of, when and by whom made 9
suffering, to escape, form for charge 132
suffering, to escape, limit of punishment for 54
when to be separated 8,9
without charges against, when released 9
Procedure of courts-martial. See Courts-martial.
Proceedings of court-martial :
action on, by reviewing authority 61
application for copy of . 69
appointed by the President 69
authentication of 24, 59
communications relating to 69
general, revised by Judge-Advocate General 69
general, where filed and kept 69
inferior, where filed and kept 70
orders, general and special, publishing 65
orders, publishing, how dated 64
requiring confirmation by the President 62,69
See also Record of proceedings.
Proceedings of courts of inquiry :
authentication of 117
record of, as evidence 1 17
Profanity :
penalty for using 103
Professor, United States Military Academy:
ineligible as member of court , 11
Prosecutor :
can not convene general court 13
Provisions :
violence to persons bringing, to camp 103,104
Public stores:
taken from enemy, secured for United States 95
Punishment:
ball and chain 46
branding prohibitcil 46,113
by carrying heavy log 46
^0^ IIJDEX.
Punishment— Continued. Page.
discretionary or fixed ; 46
effectof previous convictionH on 55
flogging forbidden 46,113
for contempt of court 111
forfeiture, in favor of United States only 47
for oflBcers 46
for soldiers w. 46
guard duty, as, forbidden 47
imprisonment beyond term of enlistment 14,121
limits of. See Maximum limits of.
of post noncommissioned staff and hospital stewards 57
proper amount of -. 46
penitentiary 47,48,113
power of reviewing authority respecting 63
solitary confinement 47,57
substitutions for prescribed 57
tattooing forbidden 46, 113
Quarrels :
authority to quell 97,98
refusing to obey noncom. officer quelling, limit 50
Quarters :
lying out of, without leave 99
Quitting guard:
form for charge 128
limit of punishment 52
offense of 101
Quorum:
for general court 12
Rank:
loss of relative, as punishment 46
of members of courts 21
of militia officers on duty with regulars 117
of regular and volunteer officers 117
suspension from 46
Itape :
offense of, in time of war 104
Recommendation to clemency :
not to be embraced in sentence 61
who should sign 61
Record of proceedings :
accurate, to be kept 59
accused entitle to copy of 116
application for copy of 69
authentication of 24,59, 117
copyable ribbon to be used 59
INDEX. S03
Record of proceedings— Continued. Page.
daily, subscribed by judge-advocate 24,59
disposition of 69
documents made part of 145
forms for. See Forms.
forwarded to reviewing authority 24
hours of session noted in '. 138,148,151
must contain a complete history of case 59
of closed session CO
of summary courts, copies furnished 76
presence of members, how recorded 138
previous convictions, evidence of, recorded 146, 149
reading of record of preceding day 60,143
recommendation, where recorded 61
revision of 61
statement of accused, when written, signed, etc 146
statement of service — notpart of record 60
See also Proceedings of courts-martial.
Recruits:
articles of war to be read to 93
Redress of wrongs :
of citizens . 103
of officers 99
of soldiers 99
Reduction to ranlis :
as a punishment 46
by summary court 74
form for sentence for 158
in case of previous convictions 56
of first-class privates of Engineers and Ordnance 56
prohibited as to post noncommissioned staff and hospital stewards . 57
Regimental courts-martial. See Courts-martial.
Regulations :
part of written military law 6
Relieving the enemy:
offense of 101
Remission :
of forfeiture 64
of sentence 62, 74, 115
Reporter:
how authorized 26
in special cases 26
no compensation for, if in Government service 27
oath of 29
pay of 26
sworn in each case 29
S04 INDEX.
Report, false : Pag:e.
by iioucommissioned officer, limit of punishment 54
Report of sammary court cases :
form for 150
forwarded monthly 70, 121
where filed 70,121
Report of surgeon on deserter:
form for J36
Reprimand :
as a punishment 46
Reproachful language:
penalty for using 98
Retainers to camp :
jurisdiction over 15
Retired officers :
ineligible as members of courts 11
jurisdiction over 14
Retired soldiers :
jurisdiction over 14
Retirement of officers :
on fiuding of retiring board. See Retiring boards.
On promotion examination (act of October 1, 1890) —
disability in line of duty, with highi-r rank 89,92
finding by board 89
finding of board, action on 92
lino of duty, meaning of 89
record, authentication of 92
Retiring hoards :
challenge forcause 83, 85
constitution and composition 82
finding 86
finding, action on 86, 87
finding, conclusive 87
form for order and record 154
hearing, right of officer to 82
oath of members 83
oath of recorder 84
powers of 84
procedure of 85
proceedings, record of » 164
See Retirement.
Retreat :
failing to retire at, ofTense of , ..., „ 100
INDEX. 205
Retams : Page.
false, penalty for making 94
of regiments, etc., made monthly 94
penalty for not making 94
BeTiewing anthority:
action of the President as 62,63
approval of sentence 61
can not change finding . 44
can not change sentence 63
can not delegate authority 62
can not increase punishment awarded 63
can not postpone sentence of dishonorable discharge 64
may change place of confinement . 63
may direct revision of record ; 61
mitigation by 62,74,115
mitigation by, for long confinement before trial 64
of garrison court. 77
of general court 62
of regimental court 77
of summary court 74
orders of, publishing proceedings 65
orders of, remitting forfeiture 64
pardoning power of 62
buspension of sentence by 63
Bevised Statutes:
certain, part of written military law 6
section 1343, as to spies 118
sections 5306 and 5313, as to trading with enemy 118, 119
Revision of record :
by whom directed 61
can only be made by court . . 61
form for 148
Reward for apprehension :
when stopped against soldier's pay 47
Bobbery :
offense of, in time of war 104
to the prejudice of, etc., limit of punishment -• 52
Safeguard :
penalty for forcing 104
Sale of victuals, etc. :
Duty, etc., upon or interest in 96
Seating of court:
arrangement of seats 21
members sit in order of rank 21
206 INDEX.
Secretary of War : Page.
application for clemency forwarded to ()2
applied to when expert witnessess are neccssarj- 40
approval of, for confinement in State penitentiary 64
certain proceedings forwarded direct to 69
Sedition:
beginning, exciting, etc 97
failure to report or suppress 97
Selling clothing, etc. See Clothing, etc.
Sentence :
abatement of, for good conduct G7
approval by reviewing authority 61
confirmation by the President 62
contemplating payment of stated sum 59
date of commencement of 64,67
dishonorable discharge, effect on unserved confinement 67
forfeiture for certain number of months J.9
forms for 158
imiHjsing tours of guard duty, forbidden 47
in excess of legal limit 64
meaning of word days in 67
mitigation for confinement before trial 64
not operative before confirmation 64
of an officer for cowardice or fraud 113
of death, confirmation of 114
of death, suspension of 6. J, 115
of death, v. te upon 58,113
of dismissal in time of peace 114
of dismissal in time of war 115
of dismissal, suspension of 63
pardon or mitigation of 62, 74, 115
penitentiary erroneously designated in 63
procedure when awarding 58
punishment discretionary, limit ascertained 58
recommendations not embraced in 61
respecting general officers _ 115
reviewing authority can not change 63
second, begins when 67
to confinement at post 58
to confinement, begins when 64,67
to confinement, in penitentiary for over one year 64
Sentinel:
allowing prisoners to obtain liquor, limit of punishment 54
disclosing or changing watchword 101
disrespect to, limit of punishment ... 54
drinking with prisoner, limit of punishment 54
leaving post before being relieved ,_ 100
INDEX. 207
Sentinel — Continued. Page.
quitting post to pillage 101
i-esisting or disobeying, limit of punishment 54
sleeping on post, form for charge 128
sleeping on post, offense of 100
suffering prisoner to escape, form for charge 132
suffering prisoner to escape, limits of punishment 54
Soldier:
charged with crimes to be confined 107
effects of deceased, disposition of 118
jurisdiction over retired 14
meaning of word in Articles of War 93
Solitary confinement:
limit of 47,57
Special orders : See General and special orders.
Specification :
initructions for drawing 18
Spy:
confirmation of sentence of 114
jurisdiction over 15
statute relating to 118
Staff officer:
as summary court 71
Standing mute. See Plea.
Standing order:
neglect to comply with 126
Statement :
inconsistent with plea 32
record of 145
Statement of service :
form for 136
not part of record , 60
to accompany charges 19
Statute of limitation. See Limitation, Statute of.
Stores :
accountability for military 95
military, lost, spoiled, etc 96
public, taken from the enemy , , 95
Striking superior officer:
form for charge 126
offense of ,„.,=-==.^^„„,-.-,^ 97
208 INDEX.
Subpoena (or Summons) . Page.
by ciTil court __. 39
forms for . 159, 160
officer or soldier receiving ^ 39
proof of service 35
sentthrough military channels 34
fSentwith interrogatories 37
service of 34 ,35
Substitution of punishment :
rule for 57
Suffering prisoners to escape:
forms for charges 132
limits of j.unishment 54
Summary court : See Courts-martial.
Sunday:
trials on, by summary court 76
Superintendent, U. S. Military Academy:
convenes courts for trial of cadets 13
Surgeon :
acting assistant, ineligible as member of court 11
examines general prisoners on release G7
report of, to accompany charges 19
report of, to accompany charges, form for 136
Surrender :
compelling commander to 101
Suspension :
as a punishment 46
from rank and command 46
of pay and emoluments 113
of sentence of death or dismissal 02, 63, 114, 115
Tattooing:
as a punishment, forbidden 46,113
Territoriality :
as affecting jurisdiction 14
Testimony :
corrections in 60,142
reading of 60,142
Tlireatening and insulting language:
limit of punishment for using, to noncom. officer 53
Trading with the enemy:
statutes relating to 118, 119
INDEX. 5^09
Trial : Page-
delay in, by summary court 72
for officers summarily dismissed 14
hours of. See Hours of session.
on Sunday, by summary court 75
postponement of 30,112
second, for same offense ; 113
Typewriter :
copyable ribbon to be used in court-martial records 59
Uniform :
of accused • — 21
of judge-advocate 20
of members _ 20
of military witnesses 21
Tictuals, etc.:
duty upon or interest in 96
Voire dire:
examination on 27,139
Volunteers :
officers of, as members of court 11
regular officers can not try 11,109
Vote:
method of taking 22
tie 22
upon death sentence 58,113
Warrant of attachment :
by whom issued 35
force necessary to execute : 35
form for 161
officer executing, served with writ of habeas corpus 35 _
procedure in issuing 35, 3G
summary court can not issue 72
Watchword:
penalty for disclosing or changing j. 101
Witness :
attachment of. See Warrant of attachment.
attendance of, civilian, how procured 34
attendance of, in capital or special cases 39
attendance of military, how procured 39
attendance of, without State, etc 37
civilian, refusing to appear or testify, punishable 36,40, 122
depai'ture of 39
deposition of. See Deposition.
examination of, manner of 42
examination of, rules to be followed 42
1291.') 14
.^10 INDEX.
Witness — Continned. Page.
examination of, witnesses separated 42
experts, employment and pay of 40
fees of, before civil court 42
fees of, certificate of attendance 42
fees of civilian, in Government employ 41
fees of civilian, not in Government employ 41
fees of civilian, payment or tender of 34,40,122
fees of, form for accounts 164
fees of, instructions regarding 165
oatU of 29
privilege of 37, 42, 122
uniform of 21
Wounding:
with intent to kill, etc., in time of war 104
Wrongs. See Redrean of wrongs.
YB 24589