KPT. , * V rfc 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. -f, IOCS. (Corrected to August, 1910.) WASHINGTON: GOVERNMENT PRINTING OFFICE. 1910. 53 WAR DEPARTMENT, Document No. 370. Office of the Judge- Advocate-General. ABBREVIATIONS. A. R. United States Array Regulations of 1908. A. W. Articles of War. R. S. Revised Statutes. OF THI PUBLICATION MAY BE PROCURED FROM *T3E ^aPJLRJNTENIXnNT OF DOCUMl'^fS tJOT^RIJME^T FRONTING, OFFICE WASklNGl'OiN, 'D. '. > ' : ' AT 50 CENTS PER COPY WAR DEPARTMENT, OFFICE OF THE CHIEF OF STAFF, Washington, December 15, 1908. 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 ap- proved and will be published for the information and guidance of all concerned. By order of the Secretary of War: J. FRANKLIN BELL, Major-General, Chief of Staff. (*) 397831 A MANUAL FOR COURTS-MARTIAL, COURTS OP INQUIRY, AND RETIRING BOARDS, AND OP OTHER PROCEDURE UNDER MILITARY LAW. INTRODUCTION. 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 government 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) & c <; , 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 OF 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 Unwritten Sources. 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 Department and by department, post, and other commanders. The Unwritten 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 CONFINEMENT BEFORE TRIAL. 1 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." 2 1 Omission of arrest does not affect the jurisdiction of a court. * 66th A. W. ARREST AND CONFINEMENT. 7 2. *-* Only commanding officers have power to place officers in arrest, except as provided in the twenty- fourth Article of War. An arrest may be ordered by the commanding officer, in person or through a staff officer, orally or in writing." 1 3. "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. Close confinement will not be enforced except in cases of a serious nature." 2 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." 3 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 arrest 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." 4 6. "In ordinary cases where inconvenience to the service would result from it, a medical officer will not be placed in arrest until the court-martial for his trial convenes." 5 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 1 Par. 930, A. R. The commanding officer of a regiment is a " command- ing officer" within the meaning of the 65th A. W., even though the regi- ment is a constituent part of a brigade post in peace or a brigade in war, and he does not cease to be such commanding officer while part of his regiment is detached from the brigade post or brigade except only as to officers of the detached portion. (Opinion J. A. G., Jan. 29, 1910.) * Id., 931. sjcj.,934. 4/d., 932. 6 Id. ,933. 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 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." 1 Sec. II. AKREST 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 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. 3. Soldiers 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 oifenses or by sentence of an inferior court. 4 171st A. W. 2 Par. 937, A. R. As to placing soldiers in irons, see page 69, par. 3, pott. Par. 941, A. B. * Id., 940. ARREST AND CONFINEMENT. 9 5. Privates in confinement awaiting trial will -not be sent to work with prisoners undergoing sentence if it can be avoided; but rnay, 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. 1 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. Arrest or 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 com- pany or detachment commander.' 2 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." 3 ' ' 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, 4 to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer committing him. * * * " 5 2. "If there are any prisoners with no record of charges against them, the old officer of the day will report that iPar. 940, A. R. *I<1., 937 and 938. 3 6 7th A. W. * This report is usually written in the " Guard Report," and presented to the commanding officer by the old officer of the day at guard mounting. 6 68th A. W. 10 ARREST AND CONFINEMENT. fact to the commanding officer, who will give the nec- essary instructions." 1 No officer or soldier put in ar- rest or confinement will be so restrained more than eight days, or until such time as a court-martial can be assembled. 2 i Par. 942, A. B. 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, 1 are eligible for detail for the trial of offenders belonging to the Regular Army; 2 but no officer will ba detailed for the trial of an officer superior to himself in rank when it can be avoided. 3 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. 4 But with this exception officers of the Regnlar Army are not competent to sit on courts for the trial of offenders belonging to other forces. 5 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 the majority membership of courts-martial for the trial of the militia must be composed of militia officers. 6 4. In the United States military service, the follow- ing-named courts -martial are authorized: 1st, the "Gen- eral Court-martial;" 2d, the "Summary Court;" 3d, the "Garrison Court-martial;" 4th, the " Regi- mental Court-martial." JSec. 1259, R. S. But the Secretary of War may assign retired officers, with their consent, upon courts-martial, courts of inquiry, and boards. Act Of April 23, 1904. (33 Stat. L., 204.) 2 Contract surgeons, dental surgeons, and veterinarians are not eligible to sit, and chaplains are not in practice detailed as members of general courts- martial. 3 79th A. W. * 78th A. W. 77th A. W. 632 Stat., 776, sec. 8, as amended by sec. 6, Act of May 27, 1908 (Q. 0. 99 A. G. 0., 1908). However, in view of the provisions of the 77th A. W. offi- cers of the Regular Army are not competent to sit on courts-martial for the trial of militia officers. (11) 12 r CONSTITUTION. 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 apposite 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 service. 1 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, it can transact no other business than to direct the judge-advocate to report the fact to the convening authority and to adjourn to 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. 2 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. 2. Any general officer commanding an army, a terri- torial division, or a department, or colonel commanding a separate department, may appoint a general court- martial whenever necessary. 3 But when any such com- 1 75th A. W. "A decision of the appointing authority as to the number that can be assembled without injury to the service is conclusive." (Par. 952, A. R.) For form of order for general court, see page 147, pott. See par. 4, this article. JURISDICTION. 13 mander is the accuser or prosecutor of any officer under his command the court must be appointed by the Presi- dent. 1 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 person under his command the court must be appointed by the next higher commander. 2 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. 3 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. 4 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. 5 The 30th Article of War relates to an exceptional procedure, not necessary to consider in this connection. 2. Courts-martial have exclusive jurisdiction to try acts constituting military offenses only, and also juris- diction to try acts which, besides constituting military offenses, are civil crimes. In the latter case the military 1 72d A. W. As to when a commander is " the accuser or prosecutor," see Digest Opin. J. A. G., 186, 187, 188. 73dA. W. Sec. 1326, K. S. * See par. 193, A. R. The authority to convene a court-martial or to relieve or detail members, etc., can not be delegated to a staff officer during the absence from his department of the commander (Digest Opin. J. A. G., 185). 'See Digest Opin. J. A. G., 992, and note. 14 JURISDICTION. ordinarily gives precedence to the civil court; in general, however, that jurisdiction which has first fully attached is properly allowed to have the precedence, and 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. 1 3. As 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 and in pay of the United States, 2 over officers and sol- diers of the marines, when detached for service with the Army, 3 over persons who fraudulently enlist in -the service of the United States and receive pay or allow- ance thereunder, 4 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 expiration of term of service pro- vided such jurisdiction is not terminated by their dis- charge. 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 territorial. 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 fraud against the United States under the 60th Article of War; discharged officers granted trial after summary dismissal, under section 1230, Revised Statutes; and military convicts. 5 1 See Digest Opin. J. A. G., 1036, and notes. Par, 963, A. K., provides that " in order that military jurisdiction may promptly vest, charges will be preferred immediately in every case that is subject to military jurisdic- tion but in which the offense is of such a nature that it is possible for the civil courts also to claim jurisdiction." 2 64th A. W. This includes retired officers and soldiers. 3 Sec. Ki21, R. S. * Act of July 27, 1892; see G. 0. 57, A. G. 0. 1892. A fraudulent enlistment is an enlistment procured by means of a willful misrepresentation in regard to a qualification or disqualification for enlistment, or by intentional con- cealment of a disqualification, which has had the effect of causing the en- listment of a man not qualified to be a soldier, and who but for such false representation or concealment would have been rejected. 6 Act approved June 18, 1898, page 130, post. JUEISDICTION, 15 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;" 1 to any person who "relieves the enemy with money, victuals, or ammunition, or know- ingly harbors or protects an enemy ; " 2 or who ' ' holds cor- respondence with, or gives intelligence to, the enemy, either directly or indirectly; " 3 and to spies. 4 6. 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, 5 and that of fraudulently enlisting in the service of the United States. 6 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 regardsper- sons and with reference to other courts-martial, exclusive jurisdiction over officers, 7 cadets, 8 and " candidates for promotion. ' ' 9 Over enlisted men, other than candidates for promotion, and military convicts, they have concur- rent jurisdiction with the inferior courts 10 in cases cogni- zable by the latter. 11 !63dA. W. 2 45th A. W. 346th A. W. * Sec. 1343, II. S. a Sees. 5306 and 5313, B. S, 6 Act of July 27, 1892; see G. 0. 57, A. G. 0., 1892. For definition of fraudulent enlistment, see page 14, note 4, ante. 7 83d A. W. s sec. 1326, R. S. 9 Act of July 30, 1892; G. 0. 79, A. G. 0., 1903. 10 They have concurrent jurisdiction with garrison and regimental courts- martial in time of war over the persons mentioned in the 63d A. W. 11 Par. 967, A. R., prescribes that noncommissioned officers will not, if they object thereto, bo brought to trial before regimental, garrison, or summary court-martial without the authority of the officer competent to order their trial by general court-martial. See also act approved June 18,1898, page 130, pott. 16 CHARGES AND SPECIFICATIONS. 2. As regards offenses, 1 they have exclusive jurisdic- tion over all offenses punishable capitally, 2 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 offences for which limits of punishment have not been prescribed, will, when practicable, be tried by general court-martial. CHARGES AXD SPECIFICATIONS. Sec. I. A military charge corresponds to a civil indict- ment. It consists of two parts the technical ' ' charge, ' ' which designates the alleged offense in general terms, and the "specification," which sets forth the facts con- stituting 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 number 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 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 offenso, 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." 1 Military offenses, wheresoever committed, are punishable under th Articles of War; see page 14, par. 3, ante. *83d A. W. CHARGES AND SPECIFICATIONS. 17 3. When an offense is specifically provided for in an Article of War the charge will be laid nnder that article and not under the 62d Article. Especially is it wrong to lay a charge tinder the C2d 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. In preferring charges against an enlisted man who has coupled with desertion a later fraudulent enlistment, there will be added to the usual specification setting forth the desertion, an additional one setting forth the offense of desertion by reenlisting without a regular dis- charge from his former regiment, troop, battery, or com- pany. The specifications to the charges of desertion and fraudulent enlistment will set forth the offenses under the original name and organization, and include the other name, etc., under an alias. 1 7. 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. 8. As to whether an act which is a civil crime is al-o a military offense no rule can be laid down which will cover all cases, for the reason that what may be a military offense under certain circumstances may lose iCir. 7fi. W IX, 1008. Sec forms for charge*, paea 138 and 142, post. GJOGO 14 2 18 CHARGES AND SPECIFICATIONS. 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, comprehensive 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- pied by the army, or in its neighborhood, so as to be in the constructive presence of the army; or if committed while on duty, particularly 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 his 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. 1 2. In order that the accused may be left in no doubt as to the precise offense with which he is charged, the time -anyplace 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 or more offenses. When a charge is to be laid under such an article, the particular offense committed should be stated. A specification in an alternative form is bad 1 Digest Opin. J. A G., 695, and note. CHARGES AND SPECIFICATIONS. 19 pleading. For example, it is wrong to allege "selling or through neglect losing," in violation of the 17th Article of War. 2. 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. "Before forwarding charges they will be carefully investigated by the commanding officer, or an officer designated by him, other than the officer prefer- ring the charges, and in forwarding the charges the name of the officer making the investigation will be noted in the commanding officer's indorsement. The commanding officer will state in his indorsement whether or not, in his opinion, the charges can be sus- tained." ] Before referring to summary courts charges for which the maximum limit of punishment that may be awarded is greater than one month's forfeiture and confinement, commanding officers will cause the accused to sign a statement on the charge sheet 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 monthly report of trials by such court. 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.' 2 "General courts-martial will con- sider only such evidence of previous convictions as is referred to them by the convening authority." 3 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 i Par. 9G3, A. R. 2 MM 962 and 9(54. 8ee page 48, par. 2, jwwrf. 20 ORGANIZATION. service 1 in accordance with the form given on page 145, post. In case of a deserter the surgeon's report required by paragraph 125, Army Regulations, will also be for- warded with the charges. - Sec. V. After charges have been formally 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 specification, or 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 ixsue 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. 2. Charges should be signed by a commissioned offi- cer, but a contract surgeon or dental surgeon may sign charges against an enlisted man. 3 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 hour of meeting, the members of the court, and a judge-advocate. 4 1 See page 64, par. 7, post, and par. 962, A. K. 2 For form, see page 145, post. Par. 1413, A. R. * Pars. 952 and 953, A. R. ORGANIZATION. 21 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 dress uniform, or service uniform in commands not provided with dress uniform, with their sabers; the judge-advocate and the accused appear in the same uniform as the court without side arms. Military wit- nesses wear the same uniform as the court with 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 to 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 144, 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. 22 THE MEMBERS. 6. TLe 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. " l A court-martial 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. 2 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 dtity 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." 3 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. 4 1 Par. 952, A. E,., and the 87th A. W. 2 Par. 955, A. E. 395th 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. 4 Par. 953, A. B. THE JUDGE-AD\ OCATE. 23 THE PRESIDENT. 1. "A president of the court will not be announced. The officer highest in rank present will act as presi- dent." 1 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 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 2. Before the court assembles the judge-advocate should note and report to the convening authority any irregu- larity 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 en- ter 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, 3 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 should in no case try i Par. 954 , A. K. 2 goth A. W. 3 See page 25, post. 24 THE JUDGE-ADVOCATE. 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 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, 1 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; exam- ines witnesses; keeps, or superintends the keeping of, a complete and accurate record of the proceedings,' 2 and affixes his signature to each day's proceedings. 3 In con- junction with the president of the court he aiithenticates the record by his signature, 3 and at the end of the trial transmits the same to the convening authority. 4 When- ever, 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 formally ap- proved by the court and must be authenticated by the signature of the president. 5 6. While the court is in open session the judge-advo- cate should respectfully call the attention of the court 1 Seepage34,jjos. 2 For form for record, see page 14fi, post. a Par. 988, A. R. < Id., 990. The proceedings of all courts appointed by the President will be sent direct to the Secretary of War. (Par. 925, A. R.) Id., 988. COUNSEL. 25 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. 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. 1 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 ex- tenuating 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 accused is not of right entitled to counsel, but the privilege is almost invariably conceded, and if re- fused, such refusal may be ground for the disapproval of the proceedings.' 2 2. 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. If there be no such officer i Par. 956, A. R. 2 Digest Opins. J. A. G., 984. 26 REPORTER. available for detail the fact will be reported to the authority appointing the court for his action. 1 3. An officer detailed as counsel for a soldier before a general court-martial should guard the interests of the accused by all honorable and legitimate means known to the law, so far as they are not inconsistent with military relations. 2 - He should not obstruct the proceedings with frivolous or manifestly useless ob- jections. 4. 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 commanding officer will detail, when neces- sary, a suitable enlisted man as clerk to assist the judge- advocate of a general court-martial, or military com- mission, or the recorder of a court of inquiry. 3 2. "A judge-advocate of a general court-martial or military commission, and a recorder of a court of in- quiry, when appointed by a general officer or a colonel exercising the command of a general officer, may employ when authorized by the convening authority, a steno- graphic reporter, who shall be paid at the following rates of compensation by the Pay Department on vouchers certified to be correct by the judge-advocate or recorder, who will forward a copy of the same with the record : "For each case not to exceed one dollar ($1.00) an hour for time actually spent in court during the trial or hearing, except when the court or commission sits less than three hours during the first day, 4 when the allow- 1 Par. 970, A. R. This privilege of being represented by counsel does not apply to cases before inferior courts. 2 Id. Id., 995. *SeeCir. 81, W. D., 1908. REPORTER. 27 ance for such day shall be three dollars ($3.00). Time will be reckoned to the nearest half of an hour. " Fifteen (15) cents for each 100 words for transcrib- ing notes and making that portion of the original record 1 which is typewritten; but no allowance shall be made for the first carbon copy of that portion of the record which is typewritten or for original papers which are appended as exhibits. 2 "Ten (10) cents for each 100 words for copying papers material to the inquiry, and two (2) cents for each 100 words for each carbon copy of the same, when ordered by the court or commission for its use. " Two (2) cents for each 100 words for the second and each additional carbon copy of the record when author- ized by the convening authority. ' ' Except for such part of the journey as may be cov- ered by Government transportation, mileage at the rate authorized for a civilian witness not in Government employ, and three ($3.00) dollars a day for expenses when the judge-advocate or recorder keeps him at his own expense, away from his usual place of employment for twenty-four hours or more, on public business re- ferred to the court or commission, shall be allowed the reporter for himself, and when ordered by the court or commission, for each necessary assistant. " The judge -advocate or recorder shall require the reporter to furnish the typewritten record of the pro- ceedings of each session of the court or commission with one carboncopy of the same not later than twenty-four hours after the adjournment of that session. The com- plete record to be finished, indexed, bound, and ready for authentication not later than forty-eight hours after the completion of its action by the court or commission on the merits of the case or hearing." 3 1 Original record includes exhibits. 2 The carbon copy is for use of the judge-advocate and the court during the trial, and, if accused desires, it should, after being corrected, completed and certified as a true copy, except as to findings, sentence, and exhibits not copied, be furnished to him. When this is done a certificate to that effect will accompany the record. If not furnished to the accused it will be trans- mitted direct to the Judge- Advocate-General of the Army. 3 Par. 996, A. 11. For form for index, see page 146, post. 28 INTERPRETER CHALLENGE. 3. Reporters are selected and employed by the judge- advocate of the court, and will be paid by the Pay Department on the certificate of the judge-advocate. 1 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." 2 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- nesses." 3 CHALLENGE. 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. ' ' * Under the custom of the serv- ice the judge-advocate may also challenge for cause. 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 1 Par. 996, A. R. For form of voucher for payment of reporter, see page 184, post. 2 Id., 997. 8 Id., 998. As to pay, etc., of civilian witness, see page 43, post. Inter- preters are paid on the blank forms used for civilian witnesses not in Gov- ernment employ. *88th A. VV. This Article of War authorizes the exercise of the right of challenge before all courts except summary courts. OATHS. 29 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 member preferred the charges or 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 be relieved only by application to the convening authority. No member who has been absent during the taking of evidence shall thereafter take part in the trial; but this provision shall not be construed as invalidating the proceedings of courts-martial if no objection is made, and the court permits the member to sit, but is to be regarded as a requirement which should always be complied with when practicable. Especially should a member who has been absent during an important part of the pro- ceedings not be permitted to resume his seat. 5. The judge-advocate is not challengeable; but in case of personal interest in the trial he should apply to the convening authority to be relieved. OATHS. 1 Of Members. The judge-advocate shall administer to each member before the court proceeds upon any 1 Whenever the same court-martial tries more than one prisoner on separate and distinct charges, the oaths herein prescribed will be admin- istered anew. 30 OATHS. 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 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." 1 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: 2 " 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 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 i 84th A. W. '< 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. 35th A. W. POSTPONEMENT. 31 whole truth, and nothing but the truth. So help you God.'* 1 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." 6. Voir Dire. "You swear that you will true an- swers make to questions touching your competency as a member 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. 2 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." s POSTPONEMENT. 1. If, before the accused is arraigned, a postponement is necessary, application therefor should properly be made to the convening authority. The court may, dur- ing trial, "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 1 92d A. W. 2 Act of July 27, 1892; see G. 0. 57, A. G. 0., 1892. 8 Sec. 183, K. S., as amended by act of March 2, 1901, p. 132, pott. 32 ARRAIGNMENT PLEAS. confinement, the trial shall not be delayed for a period longer than sixty days." 1 2. Upon application by the accused for a postpone- ment or a continuance because of the absence of a wit- ness, it should distinctly appear, on his oath, that the witness is material, and why, and that the accused has used due diligence to procure his attendance, and has reasonable ground to believe, and does believe, that he will be able to procure such attendance within a reason- able time stated. 3. Application for extended delay will, when practi- cable, be made to the authority appointing the court. When made to the court, if in the opinion of the court it is well founded, it will be referred to the convening 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. 2 PLEAS. 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. 3 1 93d A. W. 2 During the arraignment the judge-advocate and the accused stand. 3 Se page 46, par. 3, post. PLEAS. 33 2. A plea of guilty does not necessarily exclude evi- dence. In cases of discretionary punishment, 1 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 is so descriptive as to disclose all the circumstances 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; and if the offense be desertion, it should appear of record that he understood his plea to admit the intention to abandon his enlistment and not merely an unauthorized absence. 2 4. When testimony is heard after a plea of "guilty,'' the witnesses may be cross-examined, evidence may be produced to rebut their testimony, evidence as to charac- ter may be offered, and the court may be addressed in ex- tenuation of the offense or in mitigation of punishment. 5. When the accused pleads '"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 purpose, the court will proceed to trial and judgment as if the prisoner had pleaded " not guilty." 3 7. Instead of pleading to the general issue, the ac- cused may interpose a special plea either to the jurisdic- tion, in abatement, or in bar of trial, 4 or he may make either of these special pleas to any specification, pre- senting reasons why he should not be tried on it. The !See page 47, j>ost. 2G. 0. No. 91, A. G. 0., 1881, and Cir. 66, W. V.; 1908. 3 89t h A. W. 4 As to plea of antrefois acquit in a case involving both a civil and a mili- tary offense, see Digest Opin. J. A. G., 306, 1036, and notes. 65060 14 3 34 ATTENDANCE OF WITNESSES. 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; 1 when a special plea is made and overruled, the accused will be required to plead to the general issue. 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 132, 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,' 2 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." 3 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 1 See page 20, Sec. V, ante; also, pge 155, note 2, post. 2 See Digest Opin. J. A. G., 320, and note. 3 Par. 957, A. R. All witnesses for both the prosecution and the defense are summoned or subpoenaed by the judge-advocate. ATTENDANCE OF WITNESSES. 35 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 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. 1 In case a civilian witness duly subpoenaed before a gen- eral court-martial refuses to appear or qualify as a wit- ness, or to testify or produce documentary evidence, as required by law, he will at once be tendered or paid by the nearest paymaster one day's fees and mileage for the journeys to and from the court, and will thereupon be again called upon to comply with the requirements of the law. The fees and mileage of civilian witnesses residing beyond the limits of the State, Territory, or District in which the court-martial is held will not be paid in advance, as such witnesses can not be punished if they refuse to obey the summons. 2 2. If the desired witness is a civilian, living near the post where the court is convened, duplicate subpoenas 3 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 direct to the convening authority, requesting service of the same. 3. Service on a civilian witness is made, under court- martial practice, by a personal delivery of the subpoena to the witness; and proof of service by returning the iPar. 958, A. R. 2 See act of Congress approved March 2, 1901, page 131,jpos<, and par. 1001, A. R. See, also, pao;e 38, post, note 1. 3 For forms, see pages 172 and 173, post. 36 ATTENDANCE OF WITNESSES. duplicate original to the judge-advocate, indorsed as ex- plained in the form published on page 173, post. Any person may serve the subpoena, 1 but the service must be personal. 4. Should a civilian witness fail to appear 2 after due and reasonable notice, after having been served with a subpoena, 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, Ter- ritory, or District where such court shall be ordered to sit may lawfully issue. 3 This power also includes the power to execute such process through an officer, who shall be specially charged with its execution. 4 5. Whenever it becomes necessary to enforce the at- tendance of a civilian witness, as provided in the pre- ceding paragraph, the judge-advocate will issue a warrant of attachment 5 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. 6 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, 7 ~ 1 Par. 957, A. R. 2 Such witness may also be prosecuted under act of Congress approved March 2, 1901; see page 131, pott. 3 Sec. 1202, R. S. 4 12 Opins. Atty. Gen., 501. 6 For form, see page 174, post. 6 Par. 960, A. R. ATTENDANCE OF WITNESSES. 37 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." l 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 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.' 2 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. 3 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 e-'idence which such person may have been legally sub- poenaed 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 ' Par. 1009, A. R. For general form for re' urn, see page 190, post. - Pars. 1007 and 1008, A. K. For form for return, see page 192, post. 3 See cases cited in " Form B," page 192, poxl. 38 ATTENDANCE OF WITNESSES. 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 be duly paid or tendered said witness, such amounts to be paid by the Pay Department of the Army out of the appro- priation 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." 1 11. If the attendance of a military witness, stationed at the post where the court is convened, is desired, and a formal notification is necessary, a summons in the form set out on page 169, post, will be transmitted to the witness through the post commander. If the military witness is stationed at another post the department commander will be requested to order the witness to attend. 12. "Every person not belonging to the Army of the United States, 2 who, in the Philippine Islands, being duly subpoenaed to appear therein as a witness before a general court-martial of said Army, willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce documentary evidence which !Act of Congress approved March 2, 1901, sec. 1, page 131, post. If an officer who is charged with serving a subpoena pays the necessary fees and mileage to a witness, taking a receipt therefor, he is entitled to reimburse- ment. (Cir. 38, A. G. 0., 1901.) 2 Employees of the civil government of the Philippine Islands, paid from insular funds of the Islands, are held not to be in the employ of the United States. (Dec. Compt. Treas., Aug. 20, 1902; Cir. 45, A. G. 0., 1902.) ATTENDANCE OF WITNESSES. 39 such person may have been legally subpoenaed to pro- duce, shall be punished by a fine of not more than five hundred dollars, United States currency, or imprison- ment not to exceed six months, or both, at the discretion of the court, and it shall be the duty of the proper fiscal or prosecuting officer, on the certification of the facts to him by the general court-martial, to file in the proper court a complaint against and prosecute the per- son so offending: Provided, That one dollar and fifty cents, United States currency, for each day's attend- ance, and five cents, United States currency, per mile for going from his place of residence to the place of trial or hearing and five cents per mile for returning, shall be duly tendered to said witness: Provided fur- ther, That no witness shall be compelled to incriminate himself or to answer any question which may tend to incriminate him." * 13. With the consent of both parties the deposition of a military or civilian witness residing or stationed within the State, Territory, or District in which the court sits may be taken and read in evidence. Sec. III. To procure the testimony of witnesses sta- tioned or residing without the State, etc., the following practice will be 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 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 2 the State, Territory, or District in which the court sits will also ordinarily be taken by deposition. 1 Act of the Philippine Commission (No. 1130), dated April 28, 1904; see also Cir. 45, A. G. 0., 1902. 2 See page 175, note 2, post. 40 ATTENDANCE OF WITNESSES. 2. The method of procedure to obtain a deposition 1 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, if the witness is a civilian, pre- pare duplicate subpoenas 2 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 and proper account for civilian witness 3 to the commanding general of the department within the territorial limits of which the witness resides, with request that the deposition be secured, the required data supplied in the account for civilian witness, and the post-office address given, so that the account may be certified by the judge-advocate and transmitted to the proper paymaster for payment. In the case of an officer or enlisted man serving at a place excepted from the jurisdiction of a department commander, the inter- rogatories, subpoenas, and account will be forwarded to The Adjutant-General of the Army. Depositions may also be taken before the assembling of the court-martial, on interrogatories and cross-inter- rogatories or on reasonable notice, subject to exceptions when read in court. 3. If the deposition of a military witness is required, subpoenas will not be inclosed with the interrogatories, but the officer before whom the deposition is to be taken, 1 For form, see page 175, post. 2 For form, see page 173, post. See forms 13 C and 13 B, Pay Department, pages 178 and 182, post. ATTENDANCE OF WITNESSES. 41 or the officer who causes it to be taken, will direct the witness to appear at the proper time and place. 4. Judge-advocates of departments and of courts-mar- tial, and the trial officers of summary courts, are author- ized to administer oaths and take depositions. l If none of these officers are available, any other Army officer may be designated to see that the deposition is properly taken; 2 or the deposition may be referred to a notary public, or other civil officer empowered to administer oaths for general purposes (his name and official char- acter being inserted in the designation), with request that he will take the deposition and return it with his certificate that it was duly made and taken under oath. In either case, the oath must be administered and the jurat (i. e. , the certificate that the deposition was "sub- scribed and sworn to ") subscribed by a civil officer em- powered to administer oaths for general purposes. 5. Persons before whom depositions of civilian wit- nesses are taken for use before courts-martial will be paid the fees allowed by the law of the place where the depositions are taken. 3 6. 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 neces- sary for the information of the reviewing authority will be recorded. 7. Upon the receipt of the deposition, the judge-advo- cate will also complete and sign the ordinary " account for a civilian witness," 4 certifying that the witness duly attended as a witness at a certain time and place and duly gave his deposition before a certain official named, and then transmit the account to the proper paymaster with a copy of the order convening the court. 1 Sec. 4, act of July 27, 1892; see G. 0. 57, A. G. 0., 1892. 2 An officer 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 d.rect to the president of the court. 3Cir. 12, A. G. 0., 1901. * For forms, see pages 178 and 182, post. 42 ATTENDANCE OF WITNESSES. 8. In capital cases (i. e., those in which the offense is punishable by death) 1 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 of the department where the court is convened, with a request that they be duly served on the witness, if a civilian. If the witness is in the military service the department commander will be requested to order him, or cause him to be ordered, to attend before the court. 9. " An officer or enlisted man who receives a summons or subpoena to attend as a witness before any military court, board, civil court, or other competent tribunal, which is sitting beyond the limits of the department where he is serving, will, before starting to obey the same, forward it through the proper channel to his department commander, that necessary orders, or au- thority to obey such process, may be given. In urgent cases, or when the public interest would be liable to suffer by delay, a post commander may authorize im- mediate departure, reporting his action and the reasons therefor to the department commander." 2 10. " 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 of the United States, an account of such expenditure, together with the evidence that they were properly sub- poenaed and did attend the court, will be forwarded to the War Department for presentation to the Department of Justice. Officers providing such transportation will notify the court, or the marshal thereof, that it was fur- nished to enable the witnesses to perform the requisite journeys in obedience to the summons." 3 1 In time of paace desertion is not a capital offense. 2 Par. 959, A. B. 3 Id., 75. FEES OF WITNESSES. 43 FEES OF WITNESSES. 1 1. A civilian witness before a court-martial is entitled, upon his discharge, to receive from the judge-advocate 2 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 essential that he should produce a formal subpoena, ad- dressed 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 34, ante, would require the issue of formal subpoenas to witnesses on both sides, and it is the better practice for the judge- advocate to cause such to be served in each instance. 3 2. " 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, at rates not exceeding 50 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 $3 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 sta- tions." 4 1 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. 2 Or the summary court officer if the witness be before a summary court. 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 37, par. 10, ante. * Par. 9b9,A. B. 44 FEES OF WITNESSES. 3. "A civilian, not in Government employ, duly sum- moned to appear as a witness before a military court or at a place where his deposition is to be taken for use before such court, will receive $1.50 for each day of his actual attendance before such court or for the purpose of having his deposition taken, and 5 cents a mile for going from his place of residence to the place of trial or of the taking of his deposition, and 5 cents a mile for returning, except as follows: 1 "(a) In Porto Rico and Cuba, he will receive $1.50 a day while in attendance as above stated, and fifteen cents for each mile necessarily traveled over stage line or by private conveyance, and 10 cents for each mile over any railway or steamship line. " (b) In Alaska, east of the one hundred and forty -first degree of west longitude, he will receive $2 a day while in attendance as above stated, and 10 cents a mile, and west of said degree $4 a day and 15 cents a mile. " (c) In the States of Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, Colorado, and Utah, and in the Territories of New Mexico and Arizona, he will receive $3 a day for the time of actual attendance as above stated, and for the time necessarily occupied in going to and returning from the same, and 15 cents for each mile necessarily traveled over any stage line or by private conveyance, and 5 cents for each mile by any railway or steamship." 2 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." 3 5. "The items of expenditure authorized in para- graphs 999 and 1000 (Army Regulations) will be set forth in detail and made a part of each voucher for reimbursement. No other items will be allowed. The certificate of the judge -advocate will be evidence of the fact and period of attendance and will be made upon the voucher. ' ' * The correctness of the items as to civilians i These rates apply to the Philippine Islands. See Cir. 45 A. G. 0., 1902. 2 Par. 1000, A. K. A civilian not in Government employ, when furnished transportation on transport or other Government conveyance, is entitled to 57.142 per cent of 5 cents per mile (equal to 2.857 cents per mile). (Comp Dec., Aug. 20, 1902, published in Cir. 45, A. G. 0., 1902.) 3 Par. 1002, A. R. *Jd., 1003. EXAMINATION OF WITNESSES. 45 in Government employ will be attested by the affidavit of the witness, to be made when practicable before the judge-advocate. 1 7. " Compensation to civilians in or out of Govern- ment employ for attendance upon civil courts is payable by the civil authorities. " v 8. The fees of civilian witnesses, and the mileage of witnesses and fees of civil officers taking depositions, will be paid by the Pay Department. 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 rig- idly observed as to exclude the testimony of a person who has been present at the examination of other witnesses. 2. Courts-martial follow in general, so far as apposite, the common-law rules of evidence 3 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.* The accused at his own request, but not otherwise, is competent to testify. His failure to make such a re- quest shall not create any presumption against him. 5 3. While the proper and usual order and sequence of examination of witnesses is outlined in the " form for record of a General Court- Martial," page 146, post, the i Par. 1003, A. R. 2 Id., 1004. 3 Copies of any records or papers in the War Department or any of its bureaus, or at the headquarters of an army, corps, division, or brigade, or of a territorial division or department, if authenticated by the impressed otanip of the bureau or office of the War Department, or of the headquartei shaving custody of the originals (e.j/., "The Adjutant-General's Office, OfficiHl Copy "), may be admitted in evidence equally with the originals thereof before any military court, commission or board, or in any administrative matter under the War Department. (G. ~>. 198. A. G. , 1!)08.) As to disposition of originals loaned for use, see G. 0. H2, W. D., I!i0i>. 4 Act of Congress approved March 2, 1901, sec. 1, page 131, post. See also Cir. 11, W. D., 1909. &20 U. S. Stats., 30. 46 FINDINGS. 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 reopened 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. 4. Affidavits taken ex parte and not as depositions under the 91st Article of War are in no case admissible as evidence unless expressly consented to by the accused with full knowledge of his rights. 5. The accused, in addition to his own testimony, or where he has not testified, may make a verbal or written statement as to the case. The statement should not be sworn to, and if sworn to should not be received as evi- dence by the court. FINDINGS. 1. The findings of the court will be governed by the evidence considered in connection with the pleas. The finding upon the charge should be consistent with that upon the specification. 2. The accused may be found guilty of parts of the speci- fication , not guilty of the remainder , and then , if the speci- fication 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 " in desertion," and substitute therefor, respectively, the words " did absent himself without leave from," and PREVIOUS CONVICTIONS. 47 "without leave." The finding upon the charge should regularly be "not guilty, but guilty of absence without leave, in violation of the 32d Article of War." 1 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 specifica- tion, and not guilty of the charge, but guilty of " con- duct 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 sanc- tioned. Thus where a charge is laid under the general article, a finding under any other article, or, where a charge i laid under a specific article, a finding under any other specific article, would be illegal. 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 only officer present sits as a summary court, when no approval of the sentence is required by law. 48 PREVIOUS CONVICTIONS. court will receive evidence of previous convictions, if there be any; such evidence being limited, except as provided in sec. 5, page 59, post, to previous convictions by courts-martial l of an offense or offenses within one year preceding the date of any offense charged and dur- ing the current enlistment." 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 , o f receiving it. 2 These courts will consider only such evidence of previous convictions as is referred to them by the convening authority. 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. 3 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 965, Army Regulations, or one furnished for the purpose and certified to be a true copy by the commanding officer or adjutant* (at the headquarters where the original record of the summary court which tried the case is kept) . When the proof produced is the copy furnished to the company or other commander, it will be returned to him and a copy of it attached to the record. 4 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 iThe introduction of evidence of convictions by civil courts is not authorized. 2 Executive order of Nov. 25, 1908, page 58, Art. Ill, sec. 2, post. 3 M., page 58, Art. IH, sec l,j>osf. 4 Par. 971, A. B., and "Instructions" on Summary Court Ilecord, pago 160, post. PUNISHMENT. 49 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 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 rank, imprisonment, fine or forfeiture of pay, repri- mand, and confinement to limits of post or reservation. 3. For soldiers, the legal punishments, depending on the character of the offense and the jurisdiction of the court, are, death, confinement, 1 confinement on bread- and-water diet, solitary confinement, hard labor, ball and chain, forfeiture of pay and allowances, dishonor- able discharge from service,' 2 for first-class privates re- duction to second-class privates, and reprimand; for noncommissioned officers, reduction to the ranks also, :< and for "candidates for promotion," deprivation of all rights and privileges arising from a certificate of eligibility. 4 4. "No person in the military service shall be pun- ished by flogging, or by branding, marking, or tattooing on the body." 5 1 Confinement without hard labor should never be imposed. 2 A dishonorable discharge is an entire expulsion from the Army and covers all uncxpired enlistments. 3 " Post noncommissioned staff officers and hospital sergeants (1st class), though liable to discharge for inefficiency or misconduct, will not be re- duced." (Pars. 102 and 1426, A. R.) * Act of July 30, 1892; see G. 0. 79, A. G. 0., 1892. 698th A. W. 65060 14 4 50 PUNISHMENT. 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. 1 7. "Sentences imposing tours of guard duty are for- bidden." 2 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. 3 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 for absence without leave and convicted, or for desertion and is convicted of absence without leave only, the soldier will be charged with the expense of transportation of himself and guard to his proper station. It is not necessary for the court to include this charge in its sentence. The company commander will make the charge without the action of the court. 4 11. "If a soldier be brought to trial under a charge of desertion and acquitted, or convicted of absence without leave only, 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 sen- tence of the court shall so direct. The sentence in such case should direct the charge to take the form of a stop- page, not a forfeiture, thus allowing the amounts to be credited as a reimbursement." 5 1 See page 70, par. 3, post. 3 g e e page 60, post. 2 Par. 973, A. R. Par. 126, A. K. 6 Par. 127, A. R. This paragraph is not affected by the order of the Presi- dent prescribing the limit of punishment. See page 63, post, note. LIMITS OF PUNISHMENT. 51 12. "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." l 13. The 9Tth Article of War limits the discretion of the court only 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."' 2 Notwithstanding this, a court-martial should properly consult the statute gov- erning the civil courts, in order to determine a reason- able measure of punishment for the offense. 14. 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 LIMITS OF PUNISHMENT. 3 The act of September 27, 1890, provides: " That when ever by any of the Articles of War for the government of the Army the punishment on conviction of any mili- 1 97th A. W. The Philippine Islands are construed to be a Territory within the meaning of the Articles of War. -Exparte Mason, 105 U. S., 696. See G. 0. 61, A. G. 0., 1882. 3 These limits apply to the punishment of enlisted men only, 183 U. S., 365. 52 LIMITS OF PUNISHMENT. tary 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 ORDER. The Executive Order, dated June 12, 1905, 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. 96, War Department, Washington, June 19, 1905, is amended so as to prescribe, for time of peace, as follows: 1 ARTICLE I. In all cases of desertion the sentence may include dis- honorable discharge and forfeiture of pay and allow- ances. SECTION 1. Subject to the modifications authorized in section 2 of this article, the maximum limit of the term of confinement (at hard labor) for desertion committed in time of peace shall be three (3) years. SEC. 2. The foregoing limitations are subject to modi- fication 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. (6) 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 discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. i This order is published in G. O. 204, War Dept., December 15, 1908. LIMITS OF PUNISHMENT. ARTICLE II. 53 Except as herein otherwise indicated, punishments shall not exceed the limits prescribed in the following table: Offenses. Limits of punishment. UNDER I?TH ARTICLE OF WAB. Selling horse or arms, or both_ Selling accouterments cr clothing. Losing or spoiling horse or anus through neglect. Losing or spoiling accouter- ments or clothing through neglect. UNDER 20iu ARTICLE OF WAR. Behaving himself with dis- respect to his commanding officer. UNDER 24TH ARTICLE OF WAR. Refusal to ohey or using vio- lence to officer or non- commissioned officer while (juelling quarrels or dis- orders. UNDER 32 n ARTICLE OF WAR. Absence without leave ! For not more than six hours. For more than six to twenty-four hours, in- clusive. For more than one to ten days, inclusive. For more than ten days__ Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. I Six months' confinement at hard labor and forfeiture of $10 per month for the same period; for noncommissioned officer, reduc- tion in audition thereto. Three months' confinement at hard labor and forfeiture of $10 per month for the same period; for noncommissioned officer, reduc- tion in additron thereto. 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, with forfeiture of all pay and allowances and confinement at hard labor for two years. Forfeiture of $2; corporal, $3; sergeant, $1; 1st sergeant or noncommissioned officer of higher grade, $.3. Forfeiture of $">; corporal, $fi; sergeant, $7; 1st sergeant or noncommissioned ollicer of higher grade, $10. Forfeiture of $10 and ten days' confinement at hard labor; for noncommissioned officer. reduction iu addition thereto. Dishonorable discharge and forfeiture of all pay and allowances and six mouths' con- finement at hard labor. 1 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 as reward for the apprehension and delivery of the accused to the military authorities. See par. 11, page 50, ante. 64 LIMITS OF PUNISHMENT. Offenses. Limits of punishmeut. UNDER 33o ARTICLE OF WAR. Failure to repair at the time fixed, to the place appoint- ed, etc. For reveille or retreat roll call and 11 p. m. inspection. For assembly of guard ttetail. For guard mounting (by musician detailed for guard). For guard mounting (by musician not detailed for guard). For assembly of fatigue detail. For parade For inspection and mus- ter, weekly or monthly inspection. For target practice For drill For stable duty For athletic exercises For post school UNDER 38rir 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 mus- ter, weekly or month- ly inspection. At inspection of com- pany guard detail or at guard mounting. At stable duty On fatigue Forfeiture of $1; corporal, $2; sergeant, $3; 1st sergeant, $4. Forfeiture of $5; corporal, $8; sergeant, $10. Forfeiture of $2; corporal, $3; sergeant, $5. Six months' confinement at hard labor and forfeiture of $10 per mouth for the same period; for noncommissioned officer, reduc- tion in addition thereto. Forfeiture of $20. Forfeiture of $12; for noncommissioned offic' reduction and forfeiture of $20. LIMITS OF PUNISHMENT. 55 Offenses. UNDER 40rn ARTICLE OF WAR. Quitting guard. UNDER 51sT ARTICLE OF WAR. Persuading soldiers to desert. UNDER GOTH ARTICLE OF WAR_ UNDER 6 - 2r> ARTICLE OF WAR. Limits of punishment. Manslaughter Assault, with intent to kill __ Burglary Forgery Perjury False swearing Robbery Larceny or enibe/./.lement of property J Of the value of more than $100, Of the value of 100 or less ami more than $50. Of the value of $50 or less and more than ififiiO. Of the value of $20 or less 1 In specifications to charges property shall be stated. Six months' confinement at hard labor and forfeiture of $10 per mouth for t'.io 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' 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 ten years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay . and allowances, and seven years' confine- ment 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 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 a:id allowances, and seven years' confine- ment 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 liard labor. Dishonorable discharge, foifeiture 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. of larceny or embezzlement the value of the 56 LIMITS OF PUNISHMENT. Offenses. Limits of punishment. UNDER 62o ARTICLE OF WAR Continued. Fraudulent enlistment, 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 noncom- missioned 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 hos- pital head cook. Introducing liquor into post, camp, or quarters in viola- tion of standing orders. Drunkenness at post or in quarters. Drunkenness and disorderly conduct, causing the of- fender's arrest and convic- tion 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. 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, reduc- tion in addition thereto. Two months' confinement at har,d labor and forfeiture of $10 per month for the same period; for noncommissioned officer, reduc- tion in addition thereto. Forfeiture of $4; corporal, $5; sergeant, $6. Forfeiture of $4; corporal, $5; sergeant, $6. Forfeiture of $10. Forfeiture of $3; for noncommissioned offi- cer, reduction and forfeiture of $5. Forfeiture of $3; for noncommissioned offi- cer, reduction and forfeiture of $5. Forfeiture of $10 and seven days' confine- ment at hard labor; for noncommissioned officer, reduction and forfeiture of $12. Forfeiture of $4; corporal, $7; sergeant, $10. Forfeiture of $7; for noncommissioned offi- cer, 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 mouth for the same period. Dishonorable discharge, forfeiture of all pay and allowances, and one year's confine- ment at hard labor. LIMITS OF PUNISHMENT. 57 Offenses. Limits of punishment. UNDER 62o ARTICLE OF WAR Continued. Sentinel allowing a prisoner under his charge to obtain liquor. Sentinel or member of guard drinking liquor with pris- oners. Disrespect or affront to a sen- tinel. Resisting or disobeying sen- tinel in lawful execution of his duty. Lewd or indecent exposure of person. Committing nuisance in or about quarters. Breach of arrest in quarters.. 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 officer, reduc- tion in addition thereto. Six months' confinement at hard labor and forfeiture of $10 per month for the same period; for noncommissioned officer, reduc- tion in addition thereto. | jThree months' confinement at hard labor and [ forfeiture of $10 per month for the same I ( period; for noncommissioned officer, reduc- |J tion in addition thereto. : One month's confinement at hard labor and forfeiture of $10; for noncommissioned officer, reduction in addition thereto. ARTICLE III. The introduction and use of evidence of previous con- victions is subject to the following regulations: SECTION 1. Such evidence shall be limited, except as provided in section 5 of this article, to previous con VIC- EXECUTIVE ORDER. The Executive Order dated November 25, 1908, establishing limits of punishment for enlisted men of the Army, under Act of Congress approved September 27, 1890, which order was published in General Orders No. 204, War Department, December 15, 1908, is amended by adding thereto maxi- mum limits for certain offenses committed by military prisoners held iu confinement under sentences involving dishonorable discharge, as follows: Offenses. Limits of punishment. Under 62d Article of War. (a) Attempt to escape Six months' confinement at hard labor. (6) Conspiring with others to escape' Six months' confinement at hard labor. (c) Escape from sentry or guard or One year's confinement at hard from place of confinement or labor, while on parole. THE WHITE HOUSE, March 3, 1910. WM. H. TAFT. 58 LIMITS OF PUNISHMENT. tions by court-martial of an offense or offenses within one year preceding the date of commission of any offense charged 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 accom- panied by the proper evidence of previous convictions. SEC. 2. Whenever a soldier is convicted of an offense for -which a discretionary punishment is authorized, the court will receive evidence of previous convictions (see section 1 of this article) , if there be any. General, regi- mental, 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. SEC. 3. Previous convictions in connection with in- ferior 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 three months' confinement at hard labor and forfeiture of three months' pay, the punishment so authorized may, upon proof of previous convictions (see section 1 of this article) be increased one-half for each of such convictions up to the limit of three months' confinement at hard labor and forfeiture of three months' pay, and, for noncommissioned officer or first-class private, re- duction in addition thereto. In case of a soldier whose total length of service does not exceed one ^ year, upon proof of five or more of such convictions, if the total of the sentences, substitutions considered (see Article VII) , equals or exceeds forfeiture of $50 or confinement at hard labor for 100 days, the limit of punishment shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three months ; but in cases where the length of service exceeds one year, the limit of punishment shall be as just stated upon proof of five or more previous convic- tions, whatever the character of the sentences may have been, but if dishonorable discharge be not ad- judged, the limit shall be three months' confinement at hard labor and forfeiture of three months' pay, and, for a noncommissioned officer or first-class private, reduction in addition thereto. SEC. 4. Previous convictions in connection with gen- eral court-martial offenses. When the conviction is for LIMITS OF PUNISHMENT. 59 an offense punishable under Article II of this order or the custom of the service with a greater punishment than three months' confinement at hard labor and for- feiture of three months' pay, such punishment shall not be increased by reason of previous convictions, except as hereinafter specified ; but evidence of those described in section 1 of this article will be submitted to the court to aid it to determine upon the proper measure of pun- ishment subject to the limit already authorized. In the case of a soldier whose total length of service does not exceed one year, upon proof of five or more of such con- victions, if the total of the sentences, substitutions con- sidered (see Article VII) , equals or exceeds forfeiture of $50 or confinement at hard labor for 100 days, the court may, if the authorized limit does not include dis- honorable discharge, adjudge dishonorable discharge and forfeiture of all pay and allowances with the author- ized confinement ; but in cases where the length of service exceeds one year, the limit of punishment shall be as just stated, upon proof of five or more previous convictions, whatever the character of the sentences may have been. SEC. 5. On a conviction of desertion evidence of con- victions of previous desertions may also be introduced, irrespective of the enlistment or of the period which may have elapsed since such conviction or convictions. SEC. 6. When a noncommissioned officer is convicted of an offense not punishable with reduction, he may, upon proof of one previous conviction within the pre- scribed period (see section 1 of this article) , be sentenced to reduction in addition to the punishment already authorized. SEC. 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 punish- able under Article II of this order or the custom of the service with dishonorable discharge, but the aggregate term of confinement for which, as specified in said article, may exceed six months, dishonorable discharge with forfeiture of pay and allowances may be awarded in addition to the authorized confinement. 60 SENTENCE. O 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 ad- judged, the limit of forfeiture shall be all pay due and to become due during the prescribed limit of confinement. ARTICLE VI. This order prescribes the maximum limit of punish- ment for the offenses named , and this limit is intended 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. 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; 1 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. This order shall become operative in the United States and contiguous Territories thirty days after its date, and elsewhere within the jurisdiction of the United States sixty days from its date. THEODORE ROOSEVELT. THE WHITE HOUSE, November 25, 1908. SENTENCE. 2 1. When in any case the punishment is, by the Arti- cles of War, left to the discretion of the court-martial, 1 Forfeiture may be substituted for the confinement in the prescribed limit. 2 For forms for sentences see page 170, post. SENTENCE. 61 the court will, before proceeding to award the punish- ment, ascertain whether a limit has been fixed by the foregoing executive order. l 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 pun- ishment 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. 2 2. Courts -martial in awarding sentences upon mili- tary convicts are restricted to imposing additional con- finement to be served upon the completion or termina- tion of their existing sentences, and will not interfere with the manner of executing such sentences by pre- scribing loss of good -conduct time, solitary confinement, or confinement on bread and water diet, leaving all such punishments to be imposed by the commanding officer as the ordinary means of enforcing discipline. 3 3. A general court-martial may sentence a soldier to confinement in a penitentiary for any offense which may be thus punished ' ' 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." 4 When, therefore, the sentence of such a court-martial prescribes imprisonment, the court " will state therein whether the prisoner shall be con- '"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. 977, A. R.) 296th A. \V. 3G. 0. 42, W. D.,1910. iQTthA.'W. See note 1, page 51, ante. 62 SENTENCE. fined in a penitentiary 1 or in some place under military jurisdiction, being guided in its determination by the 97th Article of War. Where from any cause there is a doubt in the mind of the court whether the offense is punishable by penitentiary confinement, such words as ' in such place as the reviewing authority may direct ' will be used in the sentence." 2 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 with the period for which pay has accrued since last payment. A forfeiture not limited by the sentence to any particular month or months or other space of time, but expressed simply as a forfeiture of so many months' pay, or of a certain amount of pay, is legally chargeable against the pay due and payable at the next payment, and the balance, if any, against pay accruing thereafter, until the for- feiture is fully satisfied, but the rate of forfeiture will be the rate of pay the soldier is entitled to receive at the date of the promulgation of the sentence." 3 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." 4 6. "A sentence adjudging a dishonorable discharge to take effect at such period during a term of confine- 1 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. 2 Par. 974, A. K. 3 Id., 985. * Id., 987. RECORD OP PROCEEDINGS. 63 ment as may be designated by the reviewing authority is illegal." 1 RECORD OF PROCEEDINGS. 2 1. Every court-martial will keep an accurate record 3 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 formally approved by the court and must be authenticated by the signature of the president. 4 The record must show 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. 5 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 29, par. 4, ante.) 1 Par. 983, A. R. 2 For form of record for general court-martial see page 146, post. 3 " When records of trial by general court-martial are written on the type- writer, the copyable ribbon will be used when practicable." (Par. 989, A. R.) * Par. 988, A. R. &Cir. No. 27, A. G. O.,1897. 64 RECORD OF PROCEEDINGS. 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 point 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. 1 5. Where a soldier deserts and, without a discharge from his original term, enlists under a different name, the specifications to the charges of desertion and fraudu- lent enlistment will set forth the offenses under the origi- nal name and organization, and include the other name, etc., under an alias, and the arraignment, findings, sen- tence, and action of the reviewing authority will also give the original name and organization, followed by the other name, etc., under an alias, e. g., Private A B , Troop , U. S. Cavalry (original name, etc.), alias Private C D , Co. , , U. S. Infantry (other name, etc.).* 6. 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- advocate 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. 7. The "statement of service " referred to on page 19, paragraph 3, ante, will not be introduced in evidence nor made a part of the record of the trial, but will be considered by the court and shown to the accused, with 1 Par. 988, A. R. 2 Cir. No. 76, W. D., 1908. See form for general order promulgating trial and sentence, page 188, pott. REVISION OF RECORD. 65 a view to its correction by the introduction of evidence should it be required. The statement will be forwarded with the record for file in the office of the Judge- Advo- cate-General. 1 8. A recommendation to clemency will not be em- braced in the body of the sentence; but will be ap- pended to the record after any exhibits referred to in the proceedings. Only those members who concur in a recommendation should sign it. REVISION OF RECORD. 2 1. "When the record of a court exhibits error in preparation, or seemingly erroneous conclusions, the reviewing authority may reconvene the court for a re- consideration of its action, pointing out defects. Should the court concur in the views submitted, it will proceed by amendment to correct its error, and may modify or completely change its findings. A reopening of the case, by calling or recalling witnesses, is illegal." 3 2. An amendment can be made by the court only when duly reconvened for the purpose, and when made must be the act of the court as such. 4 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 corrections 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." 5 1 See note 1, page 138, post, as to use of statement of service. 2 For form for revision see page 158, post. 3 Par. 992, A. R. 4 23 Opin. Atty. Genl., 23; see G. O. 21, A. G. 0., 1900. 6 104th A. W.; see par. 193, A. R. 65000] 66 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. 1 3. ' '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 com- manding general in the field, or commander of the department," is not required by the Articles of War. 2 In time of peace, sentences directing the dismissal of an officer or inflicting the punishment of death require confirmation by the President. 3 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, after approval f 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, 5 except that of death, 6 or the dismissal of an officer. 7 6. ' ' The power to remit or mitigate punishment im- posed by a court-martial, vested in the authority who appointed the court or the corresponding authority under whose jurisdiction the sentence is being executed, i Par. 990, A. R. 2 109th A. W. For requirement of regulations as to " Officer commanding for the time being," see par. 193, A. B. 3 105th, 106th, and 108th id. 4 The convening authority, before forwarding the case, should complete the sentence by designating the place of confinement, where confinement is imposed by the sentence, as in cases where no confirmation is required. 6 112th A. W. 6 105th id. 1 106th id. REVIEWING AUTHORITY. 67 extends only to unexecuted portions of a sentence. If the punishment be one imposed by a general court- martial, it may be remitted or mitigated only by an officer competent to order a general court-martial and under whose jurisdiction the sentence is being executed. The fact that a soldier has been dishonorably discharged through his sentence does not affect this power. An ap - plication for clemency in case of a prisoner sentenced to confinement in a penitentiary, or in the United States Military Prison or any branch thereof, will be for- warded to the Secretary of War for the action of the President. A military prisoner sentenced to confine- ment in a penitentiary, or in the United States Military Prison or any branch thereof, will, so far as concerns the exercise of clemency, be considered to have passed beyond the jurisdiction of a division or department com- mander from the date of the approval of his sentence, without regard to the fact of his being temporarily re- tained within the command of the division or depart- ment commander pending transfer to a penitentiary, or the United States Military Prison or any branch thereof. The power to commute sentences imposed by military tribunals, not being vested in military commanders, can be exercised by the President only." l 7. "Any officer who has authority to carry into exe- cutton 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." 2 !Par. 951, A. K. 2 lllth A. VV. Immediately upon the promulgation of any sentence of court-martial in thecaseof a commissioned officer involving suspension from rank and command, confinement, reduction in lineal rank, or anj r other material change in the officer's status, the commander who has authority to approve such sentence and carry it into execution will advise The Adju- tant-General of the Army by telegraph of the sentence imposed as approved or mitigated and the date of promulgation thereof. (G. 0. 6, W. D., 1910.) 68 REVIEWING AUTHORITY. 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; l 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 designated in paragraph 6, page 66, ante, to confinement at hard labor and forfeiture of all pay and allowances for a period not to exceed the period of con- finement awarded in the sentence. 2 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; " 3 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." 4 When a peni- tentiary has been erroneously designated the reviewing authority may disapprove it and designate a proper place. 10. When general courts-martial have properly sen- tenced soldiers to confinement in a penitentiary, 5 "de- partment commanders will designate the United States Penitentiary at Leaven worth, Kans., as the place of such execution of sentence, 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. ' ' 6 1 As to authority of reviewing officer to change finding, see page 47, note 1, ante. 2Cir. 48, A. G. 0., 1900. 3 Par. 980, A. R. 4 Id., 976. A punishment of confinement in a penitentiary, when legal, may be mitigated to confinement at a military post. 6 See page 51, par. 12, ante. Par. 975, A. R. REVIEWING AUTHORITY. 69 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." l 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 for- feiture 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." 3 14. "An order remitting a forfeiture of pay operates only on the pay to become due on and after the date of the order." 4 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 sentences of forfeiture of all pay and allowances. A soldier await- ing result of trial will not be paid before the result is known." 5 16. "Trials by general courts-martial, including so much of the proceedings as will give the charges and specifications, the pleadings, findings, and sentence, and the action and remarks of the reviewing authority, will be announced in general orders issued from the War Department or from the proper division or department headquarters. If the charges contain matter which for any reason is unfit for publication, such matter will be omitted from the order, but a copy thereof will be promptly furnished by the reviewing authority to the commanding officer of the post at which the officer or soldier is confined, to be included with the papers re- i Par. 977, A. 11. "~ Id., 984. ., 981. * Id., 986. 5Jd., 979. 70 CONFINEMENT AFTER TRIAL. quired by paragraph 946 to be sent to the commanding officer of the post or military prison where the sentence of confinement is to be executed." l CONFINEMENT AFTER TRIAL. 1. "Enlisted men * * * who have been tried will, prior 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 as 'garrison prisoners;' those sentenced to dishonorable discharge and to terms of confinement at military posts or elsewhere will be designated as 'military convicts.' " 2 2. " Prisoners awaiting trial by, or undergoing sen- tence of, general court-martial and those confined for serious offenses will, if practicable, be kept apart from those confined by sentence of an inferior court, or for minor offenses. Enlisted men awaiting trial or awaiting result of trial will not be sent to work with garrison prisoners or military convicts if it can be avoided, and may, in the discretion of the commanding officer, be re- quired to attend drills, or sent to work under charge of a sentinel, during the usual working hours. Military con- victs will not be confined with other prisoners except in cases of necessity." 3 3. " Prisoners will not be placed in irons except pur- suant to sentence of a court-martial, or in the extraor- dinary case of a prisoner who, in the judgment of the commanding officer, is a desperate or dangerous char- acter, in which case report of action and the circum- stances will be immediately made to the department commander. A prisoner may be shackled or handcuffed while being transported from one post to another, or from a post to a penitentiary when, in the judgment of 1 Par. 993, A. R. For form for general order, see page 188, post. s./d., 936. 3 Id., 940. For special rules relating to prisoners, see G, 0. 155, W. D. 1908. CONFINEMENT AFTER TRIAL. 71 the officer in charge, the escape of the prisoner can not otherwise be prevented." l 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 higher authority. The strength of guards to accom- pany them will be limited to the necessities of safe delivery. Orders detailing guards in charge of military prisoners will provide for the return journey of the guard and for commutation of rations, when such com- mutation 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 following papers in his case, viz: Discharge papers, if discharged, descriptive list, orders promulgating and modifying sentences, statement of conduct while under sentence to date of transfer, and a list of clothing in possession of the prisoner when forwarded.'" 2 5. "All serviceable clothing which belongs to a pris- oner, and his blankets, will accompany him to the post designated for his confinement, and will be fully item- ized on the clothing list mentioned in the preceding 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 arti- cles itemized therein, with the prisoner. At least one serviceable woolen blanket will be sent with every such prisoner so transferred." 3 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 by sale as in the case of effects of deceased soldiers, and the proceeds thereof, together with any money left by 1 Par. 943, A. It. 2 Id., 946. This list of clothing will show the particular kinds of cloth- ing and the prices thereof as set forth on the annual clothing price list. (Cir. 47, \V. D., 1909.) ?2 CONFINEMENT AFTE& 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 7. "Military convicts, other than those confined in penitentiaries, will be allowed in abatement of their terms of confinement when serving sentences of over three months and not over twelve months five days for each complete period of twenty-five days during the whole of which their conduct has been good; but the abatement of five days so authorized shall not have the effect in any case of reducing the confinement below three months. On sentences exceeding one year they will be allowed the foregoing abatement for the first yoar of the sentence including abatement, and there- after ten days for each complete period of twenty days during the whole of which their conduct has been good. Abatements thus authorized may be forfeited, wholly or in part, by subsequent misconduct, such forfeiture to be determined by the commanding officer of the post where the prisoner is confined. A military convict serv- ing sentence in a penitentiary will be allowed the abate- ment authorized for convicts in that penitentiary." 2 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." 3 The word days in a sentence of confine- ment means periods of twenty-four hours, counting from guard-mounting on the first day of the sentence. 4 !Par. 948, A. R. -Id., 950. *I .;; 31 ti 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. 1 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, 3 and the inquiry is confined to those actually in the service. 4 It will not give an opinion on the merits of the case inquired of unless specially ordered to do so. 5 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. 6 * 115th A. W. 2 Opin. J. A. G., approved by Secretary of War, September 19, 1874. 115th A. W. * Digest Opin. J. A. G., 366. 6 llth A. W. 'Digest Opin. J. A. G., 318. (86) COURTS OF INQUIRY. 87 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." l 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 an 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 1116th A. W. 280pin. Atty. Gen.,346. 88 COURTS OF INQUIRY. by witnesses before courts-martial, and the party ac- cused shall be permitted to examine and cross-examine them, so as fully to investigate the circumstances in question." 1 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." 2 The form for the record of a general court- martial should be followed in making up the record of the court, .o.: 7 . UlSth A. W. 2 120th id. RETIRING- 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, 1 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 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. The recorder is not charged with any specific function other than to record the proceedings of the board. He will, however, carry out such instructions as may be given him by the board and may be required by the latter to collect evidence, present it to the board, exam- ine the witnesses and, generally speaking, conduct the case for the Government. A stenographic reporter for a retiring board can only be employed on the authority of the Secretary of War obtained in advance of the employment. The authority must be filed with the voucher on which payment is made. The form of voucher used will be that provided 1 For procedure as to retirement on examination for promotion see page 97, and for form for record of retiring board see page 166, post. 2 Sec. 1246, K. S. (89) 90 RETIRING BOARDS. for the payment of reporters for general courts-martial with the necessary changes in the wording of the form. 1 4. Bight 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." 2 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 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. 3 6. Section 1253, Revised Statutes, does not authorize the President to send a case back to a retiring board after he has once approved and acted upon its report; such approval and action determines that the officer has had " a full and fair hearing." 4 1 For form of voucher see page 186, post. 2 Sec. 1253, R. S.; sec. 17, act August 13, 1861. 3 Digest Opin. J. A. G., 2197. * Miller's Case, 19 Ct. Cls., 338; McBlair's case, id., 528. In both of these cases the officers had been wholly retired, and their successors had beeu 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 approved 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.) RETIRING BOARDS. 91 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." 1 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." 9. The presiding officer of the board administers the following oath to the recorder: "You [naming him] do swear that you 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." 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 incapable 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. "In the execu- tion of the duty thus imposed by law, the board is re- quired to ascertain the nature and extent of the dis- ability and its character and effect, as temporary or permanent. The evidence upon which to base its find- ings in this regard should be derived chiefly but not exclusively from the report of the medical officers and from the authenticated extracts from the departmental records which show the cases in which the officer has received medical or surgical treatment during his con- nection with the military service." 2 11. The investigation of a retiring board is not re- stricted by any statute of limitation. It may inquire l Sec. 1247, K. S. 2 Cir., W. D., Feb. 27, 1904. 9 RETIRING BOARDS. .into the matter of a disability, however long since it may have originated. 1 12. "The provision (of section 1248, Revised Statutes) 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 ques- tion 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 inves- tigation, to afford a fair hearing, and to enable it satis- factorily 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 rea- sonable opportunity of defense if desired, to find and report in his absence if he fail to appear; and further to determine the relevancy and validity of challenges to its members and punish acts in the nature of contempt, according to Arts. 86 and 88 (A. W.) , if necessary to an impartial and complete inquiry. But the board can not entertain 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 a moral defect or a criminal amenability. If the case be one calling for trial and punishment, it should be referred to a court-martial. ' ' a 13. "The board having established the fact of inca- pacity for active service must seek the cause of such incapacity and determine whether the cause so ascer- tained is an incident of service; that is, a thing which inseparably belongs to, is connected with, or inheres in the military service. Battles, marches, the perform- ance of the several duties in garrison or in the field which 1 Digest Opin. J. A. G., 2193. 2 Winthrop's Military Law and Precedents, page 765; Digest Opin. J. A. G., 2192. RETIRING BOARDS. 93 are imposed upon officers of the line or staff by law, regulations, the lawful orders of competent military superiors, by an established custom, or by the exigen- cies or necessities of the military service; all these make up and constitute the * incidents of service, 'one or more of which must be ascertained by the board as the deter- mining cause of an incapacitating disability. If the disabling cause be a wound or injury, the wound or in- jury must have resulted from an incident of the service; if it be a disease, the disease must have been the result of an incident or a succession or aggregation of incidents of the service; in other words, the board must pass from the disability to the occasion or circumstance of which it is the direct result, and that occasion or circumstance must be a thing so inseparably associated with the mili- tary service, so directly connected with it and growing out of it as to entitle it to be regarded as an incident of the service. "If an officer participates in military operations, or serves in a locality where the climatic or other causes are such as to induce a particular form of disease, and having taken due and reasonable precautions to prevent it contracts such disease, then if disability results its cause would properly be regarded as an incident of serv- ice within the meaning of the statute. But when a disease is contracted, not due to exposure or to the exist- ence of conditions such as have been described, the board will require the production of testimony showing that it is not due to vicious or irregular habits, and that there has been neither carelessness nor contributory negli- gence on the part of the officer, who is bound as a pru- dent man and a conscientious public officer to use every proper means at his command to preserve his health and to maintain his physical efficiency under all conditions of service." 1 14. 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 iCir., W. D., Feb. 27 1904. 94 RETIRING BOARDS. Ms 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. 15. The senior medical officer of the board is the next witness. He is called on to submit the result {reduced to writing and signed by 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, 1 is a question for the board to determine on the facts. 16. The recorder then submits the documentary evi- dence which he has received from The Adjutant -Gen- eral's Office. It is not the practice of retiring boards to verify the correctness of these records under oath. Other evidence may then be introduced. The officer before the board has the right, as above stated, to object to improper evidence and to interrogate the witnesses, and may himself introduce evidence, if legal, material, and relevant, and may submit a statement in writing, if he desires to do so. 17. Finding." When the board finds an officer inca- pacitated for active service, it shall also find and report the cause 2 which, in its judgment, has produced his 1 As to what "incident to the service" means, see also page 97, post, note 3. 2 It has been held that the "cause" of " incapacity " intended 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 authori/ed 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 sufficient ground for his retire- ment. (Digest Opin. J. A. 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 efficiency could be pertinent only Ln so far as it could be regarded as going to show that his inefficiency, if found was the result of an impairment of health. (Id., 2204.) RETIRING BOARDS. 95 incapacity, and whether such cause is an incident of service." 1 18. The board is closed for deliberation and deter- mines whether the officer before it for examination is incapacitated for active service or not. (It is not neces- sary that the recorder retire. ) When it finds the officer incapacitated for active service, it must also find and report the cause which, in its judgment, has produced the incapacity, and whether such cause is an incident of service. 1 The board may modify its findings ana decision at any time before forwarding its record of proceedings. The finding should be framed in narrative form, and should not embrace any recommendation. 19. 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." 2 20. 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 in a case of a court-martial. But not being a court, and the inquiry not being a trial, the board, upon such revision, may, and should if so directed, reexamine former witnesses or take new testimony. 21. " 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 i Sec. 1249, R. S. 2Sec. 1250, R. S. 96 KETIREMENT. 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." l 22. " 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 finding, but the law does not empower him to modify the finding or to substitute a different one. There is here a judicial power vested in the two, and not in the President acting singly, and when the power has been once fully exercised it is exhausted as to the case." 2 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." 3 1 Winthrop's Military Law and Precedents, page 767; United States v. Burchard, 125 U. S., 179, 180; Burchard v. United States, 19 Ct. Cls., 137; Potts v. United States, 125 U. S., 175; Miller 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 authority provided by the statute. It is not a continuing power, but is performed to the extent of its existence by the one act of the President." (McBlair v. United States, supra. And compare Ex parte Randolph, 2 Brock., 473; People v. Wayuesville, 88 111., 470, cited in 19 Opin. Atty. Gen., 209.) 2 Digest Opin. J. A. G., 2206. See U. S. v. Burchard, 125 U. S., 179. Sec. 1245, K. S. (see sees. 1246 to 1258, R. S., inclusive). This section is taken from sec. 16 of " an act providing for the better organization of the Military Establishment," approved August 3, 1861, which 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." RETIREMENT. 97 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." l 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." - RETIREMENT UNDER ACT OF OCTOBER 1, 189O. 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 3 of duty, he shall be retired with the 1 Sec. 1251, R. S. It does not affect the authority to retire under sec. 1251, K. S., that the incapacity of the officer may have been found to have re- sulted from a wound received by him while in the volunteer service before entering the Regular Army. 2 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 habitusil drunkenness. Sees. 1251 and 1252, It. S., arc based on sec. 17 of the act cited in note 3, page 94, ante, which prescribed as follows: " The board, whenever it finds an officer incapacitated for active service, will report whether, in its judgment, 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 the 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 otherwise, 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. (Digest Opin. J. A. G., 2203,2208.) 3 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 which, although relating to enlisted men, is in principle applicable in the 65060 14 7 98 RETIREMENT. rank to which his seniority entitled hiiu to be promoted; but if he should fail for any other reason he shall be suspended from promotion for one year, when he shall case of commissioned officers. The action of the War Department on this report was in effect a confirmation of the conclusion arrived at: " Formerly the expression 'line of duty' was much more btrictly con- strued than now. Attorney General Cashing 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 sailor, he is not the less a man and a citizen, with private rights to exercise and duties to perform; and, while attending to these things, he is not in the line 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 are within that line, you thereby incur disability or 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 within the line, or was it unappurtenant, inde- pendent, and not of necessary and essential connection? That, in my judgment, is the true test-criterion of the class of pension cases under con- sideration.' (7 Opin. Atty. Gen., 161, 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 in full commission, and not on furlough, must be considered in the line of his duty, although, at the moment, no particular or active employment is devolved upon him. The 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 fiom 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 practice. " By (the fourth section of) an act of March 3, 1865 (13 Stat., 488), it was provided: " ' That every noncommissioned officer, private, or other person, who has been, or shall hereafter be, discharged from the army of the United RETIREMENT. 99 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. 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 line 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 furlough or leave of 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 the sense of that legislation, the soldier must be actually in service under military orders, and he 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 be conclusive, but it is not 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 be the result of the unlawful or unauthorized act, as a direct or a contributory 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 sollier 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 entering 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, 1866, modified 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 be 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." 100 RETIREMENT. 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. 3. 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. 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 reported by a retiring board as inca- pacitated by reason of physical disability, the result of an incident of service, shall, if the proceedings of said board are approved 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 when- ever a vacancy occurs that otherwise would result in his promotion on the active list; provided, that before the occurrence of such vacancy he shall not have been placed on the retired list. 1 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 arising of new causes which might make proper that the question of his disability be inquired into by a retiring J G. 0. 41, A. G. 0., 1897, which also contains detailed instructions as to procedure of board of examinations in general. RETIRE MEN T;. , \ \ 101 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. 1 1 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 ^aith arid 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 (102) ARTICLES OF WAR. 103 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 field 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 knowingly 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, 104 ARTICLES OF WAR. clothing, or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered. 1 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, accouterments, 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, grant 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 officer of every troop, battery, or company shall give 1 " Cashiered " and "dismissed from the service" are now considered practically synonymous. ARTICLES OF WAR. 105 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 proof 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, spoiled, 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 accouter- 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. 1 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 interested in, the sale of any victuals, liquors, or other i 17th A. W., as amended by act of July 27, 1892; see G. 0. 57, A. G. 0., 1892. 106 -ARTICLES OF WAR. 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 him, being in the execution of his office, or disobeys any lawful com- mand of his superior officer, 1 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, battery, 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 2 own or to 1 Disobedience of an order of a contract surgeon, of a dental surgeon, of a veterinarian, and a noncommissioned officer should be charged under the 62d Article of War; see Form d, page 141, post. Disobedience of an order by a military convict should also be charged under the G2d Article of War." *Sic in Revised Statutes. ARTICLES OF WAR. 107 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 of any 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 command, 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 108 ARTICLES OF WAR. 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 Territory where such regiment is stationed. The gen- eral shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, transmit to the Depart- ment of War a true statement of such complaint, with the proceedings 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. 1 ART. 31. Any officer or soldier who lies out of his quarters, garrison, or camp, without leave from his 1 The " regimental court-martial," under 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 be within the jurisdiction of this court. It can only investigate such matters as are susceptible to redress by the doing of justice to the complainant; that is, when in some way he can be set right by put- ting a stop to the wrongful condition which the officer has caused to exist. Erroneous stoppages of pay, irregularity of detail, the apparent requirement 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 asjnembers (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. ARTICLES OF WAR. 109 superior officer, 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 us 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, 110 ARTICLES OF WAR. shall suffer death, or such other punishment as a court- martial may direct. ART. 40. Any officer or soldier who quits his guard, platoon, or division, without leave from his superior officer, except in a case of urgent necessity, shall be punished 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. 42. 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- martial 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 ARTICLES OF WAR. 111- CTnited 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 death, 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 tc 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, \vhich 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 112 ARTICLES OF WAR. shall, for his first offense, forfeit one-sixth of a dollar; for each further offense he shall forfeit a like sum, 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 pen- alties 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, or meadows, 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 ARTICLES OF WAR. 113 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 made 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 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.) 65060'- 14 8 114 ARTICLES OF WAR. 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 [2] 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 to 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 writing 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 ARTICLES OF WAR. 115 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 person such writing, without having full knowledge of the truth of the statements 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, sub- sistence 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. 1 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 1 The words in italics were added by act of March 2, 1901, page 133 , post. 116 ARTICLES OF WAR. 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 130, post. 2 "SEC. 3. That fraudulent enlistment, and the receipt of any pay or allow- ance thereunder, is hereby declared a military offense and made punishable by court-martial, under the 62d .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 page 142, post. ARTICLES OF WAR. 117 ART. 68. 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; 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 118 ARTICLES OF WAR. shall be laid before the President for his approval or orders in the case. 1 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 Regular 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. l Act of July 5, 1884; see G. 0. 73, A. G. 0., 1884. ARTICLES OF WAR. 119 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. 1 ART. 81 . Every officer commanding aregiment 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 130, post. 283d A. \V., as amended by act of March 2, 1901, page 132, post. 120 ARTICLES OF WAR. 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 administer justice, without partiality, favor, or affection, accord- ing 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 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 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 officiating 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 gestures, 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. ARTICLES OF WAR. 121 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 pris- oner 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, 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 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 authen- ticated, may be read in evidence before such court in cases not capital. 1 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, 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 ART. 95. Members of a court-martial, in giving their votes, shall begin with the youngest in commission. 141 SEC. 4. That judge-advocates of departments and of courts-martial, and the trial officers of summary courts, are hereby authorized to adminis- ter 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.O., 1892.) 2 Art. 94 repealed by act of March 2, 1901, sec. 2, page 132, post. 122 ARTICLES OF WAR. 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 expressly 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, Territory, or District, subject such convict to such punishment. 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. 102. No person shall be tried a second time for the same offense. ART. 103. No person shall be liable to be tried and punished by a general court-martial for any offense ARTICLES OF WAR. 123 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: Provided, That said limitation shall not begin until the end of the term for which said person was mustered into the service. 1 ART. 104. 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 commanding for the time being. 2 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 be carried into execution, until it shall have been con- firmed by the President. 1 103d A. W., as amended by act of April 11, 1890; see G. 0. 45, A. G. O., 1890. 2 104th A. W., as amended by act of July 27, 1892; see G. 0. 57, A. G. 0., 1892, 124 ARTICLES OF WAR. 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. 1 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 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. ART. 112. Every officer who is authorized to order a general court-martial shall have power to pardon or mitigate any punishment 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.' 2 ART. 113. Every judge-advocate, or person acting as such, at any general court-martial, shall, with as much expedition as the opportunity of time and distance of place may admit, forward the original proceedings and sentence of such court to the Judge- Advocate-General 1 Article 110 repealed by act of June 18, 1898, sec. 2, page 130, post. 2 See par. 951, A. K. ARTICLES OF WAR. 125 of the Army, in whose office they shall be carefully preserved. ART. 1 14. 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 weak 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 hope 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 witnesses as is given to courts-martial and the judge- advocates 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. 126 ARTICLES OF WAR. 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 com- manding 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 dismissal of an officer: Provided, That the circumstances are such that oral testimony 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, organized militia, or volunteers, by commission, there on duty or in quarters, shall com- mand 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. 1 ART. 124. Officers of the organized 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 maybe employed in conjunc- tion with the regular or volunteer forces of the United States, take rank next after all officers of the like grade in said regular forces, and shall take precedence of all officers of volunteers of equal or inferior rank, notwith- standing the commissions of such militia officers may be older than the commissions of the said officers of the regular forces of the United States. 2 ART. 125. In case of the death of any officer, the ma- jor of his regiment, or the officer doing the major's duty, or the second officer in command at any post or garrison, as the case may be, shall immediately secure all his U22d A. W., as amended by act of March 8, 1910; see G. O. 43, W. D., 1910. Article 123 repealed by same act. 2124th A. W., as amended by act of March 8, 1910, OTHER STATUTORY PROVISIONS. 127 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 offi- cers 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 DEFINING COURT-MARTIAL, OFFENSES. 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 point to be thence taken into such State, or who trans- ports or sells, or otherwise disposes of therein, any goods, 128 OTHER STATUTORY PROVISIONS. wares, or merchandise whatsoever, except in pursuance of license and authority of the President, as provided 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 or 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 peni- tentiary 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 expect 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 than five thousand dollars, and imprisoned in the pen- itentiary not more than three years. Violations of this SUMMARY COURT ACT. 129 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 l 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 garrison 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- judge 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 1 Retainers to the camp and other classes of persons mentioned in the 63, ante, as to disobedience of an order by a military convict. 136 FORMS FOR CHARGES. describe the offense) 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 f officer or noncommissioned 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 ." 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." (b) "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 FORMS FOR CHARGES. 137 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 , Troop , U. S. Cavalry, 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 , on the of , 19." 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 , on the of , 19." 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." 138 FORMS FOR CHARGES. 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, 1 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 company, 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 62d.* An additional specification to the charge of desertion should set forth the offense as follows:) . Specification 2: " In that Private A B , Troop , U. S. Cavalry, alias Private C D , Company , - - U. S. Infantry, a soldier in the service of the United States, did desert the same at on or about 3 the of , 19 , as evidenced by the fact that he did enlist at on or about the day of , 19 , under the name C D ,in Company , U. S. Infantry, without a regular discharge from said Troop , Cavalry." 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." J 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 34, par. 9, and page 52, ante.) -See 50th A. W. For form for " fraudulent enlistment," see page 142, jjo. 3 Give date of original absence without authority. See Cir. No. 46, W. D., July 13, 1910. FORMS FOR CHARGES. 139 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 manner 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 a,gainst 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 , i 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 ($ ) , 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." (6) 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 140 FORMS FOR CHARGES. 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 was 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 foregoing statement is correct.' " This at , on or about the of , 19." ARTICLE 62. (a) Charge: "Neglect of duty, to the prejudice of good order and military discipline." FORMS FOR CHARGES. 141 Specification : "In that Private A B , Co. , U. S. Infantry, being on duty as , and it being his duty as such to , did fail and neglect to perform said duty. "This at -, on the of , 19." (b) Charge: "Drunkenness and disorderly conduct, to the prejudice of good order and military discipline.*' 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 l fraudulently enlist in the United States service, the charge and specification should read: 2 ) 1 For case of fraudulent enlistment by a soldier, see page 142, form (gr), post; and for definition of "fraudulent enlistment," see page 14, note 4, -tiite. 2 See sec. 3 of the act of July '27, 1892; page 116, note 2, ante. 142 FORMS FOR CHARGES. (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, being then a minor, fraudulently enlist as a soldier in the service of the United States by falsely representing him- self to be over 21 years of age, to wit, years and months of age; and that he has at , since said enlist- ment, received pay and allowances thereunder." or, (/) 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 discharged from the United States service by sen- tence of a military court and by deliberately and will- fully concealing 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 allow- ances thereunder." (or) if a soldier enlists without a discharge from a prior enlistment. l (g) Specification: "In that Private A B , Troop , U. S. Cavalry, alias Private C D , Co. , U. S. Infantry, a soldier in the service of the United States, did, without a discharge from said regiment of cavalry, fraudulently enlist in Co. , - U.S. Infantry, at , on the day of ,19 , under the name of C D ." (7i) 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- 1 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 dis- charge is punishable as fraudulent enlistment without regard to the act of July 27, 1892. See Digest Opin. J. A. G., 1418. FORMS FOR CHARGES. 143 ously kill Private C D , Co. , U. S. In- fantry, by (here insert manner of killing}. " This at , on the of , 19." (i) Charge: "Assault (or, assault and battery) 1 with intent to kill, to the prejudice of good order and mili- tary discipline." Specification: " In that Private A B , Co. , - U. S. Infantry, did feloniously assault Sergeant , 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." (j) 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." (k) 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." (I) Charge: "Embezzlement, as denned 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 the United States of , and, as such officer in charge of said , being a disbursing officer of the United States, and having intrusted to him largo amounts of public money of the United States, did willfully and knowingly apply for a purpose not authorized by law a large sum of the said moneys so !If there be any unlawful touching of the person of another by the aggressor himself or any other substance put in motion by him, battery shouM be charged. 144 FORMS FOR CHARGES. 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 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 payment 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." (ra) Charge: "Perjury, 1 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 judge-advocate: - ? "Answer: - . "Which testimony was false in that ( specify in wha t re- spects) , 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 todeceive the court. "This at , on the day 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-martial 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. 1st Lieut., 5th Cavalry, Judge-Advocate. 1 FORT -- , The court met pursuant to adjournment, at - o'clock m. PRESENT. 2 All the members of the court and the judge -advocate. 3 The accused, his counsel, and the reporter were also present. (If the proceedings of the previous day are required by the court to be read, the fact will be recorded in the following form:) The proceedings of - were read 4 and approved. (or) corrected as follows: (In latter case, enumerate corrections, giving page and line on which they occur.) (Page?.) 1 The judge-advocate should sign each day's proceedings. (Par. 988, A. R.) 2 See page 148, note 1, ante. 3 If any member is absent, if not already accounted for, add except - (giving cause of absence, if known). 4 The reading of previous proceedings will be dispensed with, unless for special reason considered necessary by the court. See page 63, par. 2, ante. 154 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: l Do you know the accused? If so, state who he is. A. . Questions by the accused: Q. ? A. . (The examination should be 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 witness.) (Should the accused wish 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: Questions by the accused: Q. ? A. . (The examination of the accused should be conducted in the same manner as that of any other witness.) (If the accused lias 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 following verbal statement in his defense. (PageS.) 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. 2 Should the accused not wish to testify in his own behalf the fact may not be animadverted upon. RECORD OF GENERAL COURT-MARTIAL. 155 (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. 1 (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- advocate, 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. 2 The judge-advocate submitted the case without remark. (or) replied as follows: 3 (Insert reply. ) (or) submitted and read to the court a written reply, which is hereto appended and marked C. The accused (his counsel,) (the reporter,) and judge- advocate then withdrew and the court was closed, and finds the accused, Private - , th Company, Coast Artillery: Of the 1st specification, 1st charge: " Guilty; " (or) -Not guilty." (Page 9.) !A11 documents and 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, and 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 upon which they were ruled out. - The statement of the accused, or argument in his defense, and all pleas to the jurisdiction in bar of trial or in abatement, when in writing, should be signed by the accused, referred to in proceedings as having been sub- mitted 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. 156 RECORD OF GENERAL COURT-MARTIAL. Of the 3d 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 punishment is discretionary, 1 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, 2 copies of which are hereto appended and marked "D," "E,"etc. ( If the accused has any statement to make in re- gard to his previous convictions , it will be recorded.} The accused (his counsel,) (the reporter,) and judge-advocate then withdrew and the court was closed, and sentences him, Private , th Company, Coast Artillery, . [NO PREVIOUS CONVICTIONS, OR ACCUSED ACQUITTED.] (If the punishment is not discretionary, or the ac- cused is acquitted, the record, after the findings are stated, should continue:) And the court does therefore sentence him; 3 etc. (or) does therefore acquit him, Private , th Company, Coast Artillery. (Page 10.) 1 See page 58, sec. 2, ante. 2 See " Previous convictions," page 47, ante. When the proof produced is the copy furnished to the company or other commander, in accordance with par. 965, A. R., it will be returned to him and a copy of it attached to the record, if the trial be by general court-martial. (Par. 971, A. R.) The copy should be bound with the record, as an exhibit, by means of the mar- gin provided for the purpose. 3 When the judge-advocate records the findings and sentence by the use of a typewriting machine he will certify immediately after the authentication of the record as follows: " I certify that I recorded the findings and sentence of the court. Judge- A dvocate^ ' RECORD OF GENERAL COURT-MARTIAL. 157 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) adjourned sine die. Major, 5th Cavalry, President. 1st Lieut., 5th Cavalry, Judge- Advocate. 1 (At least two blank pages will be left after the ad- journment, and before the exhibits, for the decision and orders of the reviewing authority.} FORM OF BRIEF. (The papers forming the complete record will be fastened together at the top, and the record folded in four folds, and briefed on the first fold as follows:) 2 Private, th Co. Coast Artillery Corps. Trial by general court-martial at ; Commencing , 19 ; Ending , 19 . President: Major , 5th Cavalry. Judge- Advocate: 1st Lieut. , 5th Cavalry. (Page 11.) 1 In case of the death or disability of the judge-advocate see par. 988, A. R. 2 When the record is completed, the judge-advocate will forward it with- out delay to the convening authority as an inclosure to the indorsement of the judge-advocate returning the original charges. (Par. 990, A. R.) See also page 66, par. 3, and page 75, par. 1, ante. 158 RECORD OF GENERAL COURT-MARTIAL. SEC. II. FORM FOR REVISION OF RECORD. 1 FORT , , , 190. The court reconvened at o'clock . m., pursuant to the following order: (Insert copy of order.) (or) pursuant to the following indorsements: (Insert copies of all indorsements.) PRESENT. 2 (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 au- thority. 3 The judge-advocate then withdrew, and the court was closed and revokes its former findings and sentence, 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. 4 (Page 12.) 1 See " Revision of record," page 65, ante. The court is usually recon- vened by indorsement on the original record, returning it to the president of the court with the directions of the convening authority. 2 If the findings and 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 upon 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 The judge-advocate will also read any other indorsements there may be connected with the proceedings in revision. < See page 65, par. 2, ante. RECORD OP SUMMARY COURT. 15.9 The judge-advocate was then recalled and the court at . m., etc. , Major, 5th Cavalry, 1st Lieut. , 5th Cavalry, President. Judge-Advocate. ( The record of revision will be appended to the original proceedings, following them immediately, before the ex- hibits, and the whole indorsed by the president of the court and forwarded to the convening authority. ) RECORD OF A SUMMARY COURT. SEC. I. FORM FOR RECORD. 1 (Surname.) (Christian name.) Co. ... , (Rank.) (Regiment or corps.) Number of case . RECOKD OF SUMMARY COURT. Trial of the man named above by court appointed by Orders, No. , Headquarters , , 190 . FORMER SERVICE. Date of enlistment. Date of discharge. Character given oil discharge. Date of present enlistment, , 190 . Rate of pay per month, . In arrest or confinement under present charges since , 190. Dates and serial numbers of previous convictions with sentences within one year preceding commission of offense and during current enlistment: . 1 Blank forms for summary court record and for monthly report of tried (page 161, post), size 3% by 8% inches, will be furnished by The Adju- tant-General of the Army. The form for summary court record is also in- tended for use in furnishing copies of the record, the same to be certified to be " a true copy " by the commanding officer or adjutant. 160 RECORD OF SUMMARY COURT. Charge : Violation Article of War. Specification: In that he did . Witnesses: Officer preferring charges. I hereby consent to trial by summary court on these charges. Respectfully referred to the summary court for trial. By order of : Adjutant. FINDINGS: Of specification : - . Of charge : - . Sentence: . Number of previous convictions considered, . Summary court. Approved , 190 . Commanding Officer. SEC. II. INSTRUCTIONS. (On back of form.) The charges and data, as called for on pages 1 and 2 of this form, will be prepared in duplicate by the officer preferring the charges one copy for completion as the record of trial, and the other as the copy for the com- pany records, the latter to be certified to be "a true copy " by the commanding officer or adjutant. Each case will be given a serial number in the order of trial, by the trial officer, and bound in its numerical order in a book of convenient size, each case, when com- pleted, being added to the book by pasting or other REPORT OF SUMMARY COURT CASES. 161 method. Paper binding will be sufficient, a good qual- ity of tough paper being used for this purpose. Charges will be accompanied by the certified copies of previous convictions ' on file with the company rec- ords. If the charges be referred to the summary court for trial, the copies will be returned to the company records immediately after trial. If the charges be re- ferred to a garrison or regimental court-martial (this form being used as a charge sheet) , the copies of pre- vious convictions will accompany them, but will be returned to the company records immediately after trial. When the copies of previous convictions accom- pany charges referred to a general court-martial for trial they will be returned to the company records im- mediately after trial, and copies thereof, made and cer- tified by the judge-advocate, will be attached to the record of trial. If the only officer present with command sits as sum- mary court no approval of sentence is required, but he will sign the sentence as such officer and affix the date of signature. 2 This form is printed in copying ink, and when filled in on the typewriter a copyable ribbon will be used. MONTHLY REPORT OF SUMMARY COURT CASES. FORM FOR REPORT. (Surname.) (Christian name.) , Co... , (Rank.) (Regiment or corps.) REPORT Of TRIALS BY Sl'MMARY COURT, At- . During the month of , 190 . Number of case . Charge : Violation Article of War. Synopsis of specification or of specifications: 1 See page 48, par. 2, and page 80, par. 11, ante. 2 Par. 966, A. R. 65060 14 11 162 RECORD OF GARRISON COURT-MARTIAL. Finding : . Number of previous convictions considered . Rate of pay per month . Consent in writing to trial. (" Yes " or " No ") . Sentence: (If mitigated, give sentence as mitigated only. Signature of trial officer not to be copied.) Date of approval or, if there be no approval, of sen- tence, , 190. INSTRUCTIONS. This report covers one case only and, with other re- ports covering the cases tried during the month, will be transmitted to department headquarters on the last day of the month for file (after examination) in the office of the judge-advocate of the department in alpha- betical order under the name of party tried. At recruit depots and recruiting stations and other places exempted from the jurisdiction of commanders of territorial divi- sions and departments the reports will be forwarded directly to The Adjutant-General of the Army. After having been retained on file for two years the reports may be destroyed. RECORD OF A GARRISOX COURT- MARTIAL.* SEC. I. FORM FOR RECORD. CASE . Proceedings of a garrison court-martial convened at , pursuant to the following order: FORT , ,19. ORDERS, ) No. . f A garrison court-martial will convene at this post at o'clock a. m., on , 19 , or as soon there- 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. RECORD OF GARRISON COURT-MARTIAL. 163 after as practicable, for the trial of (such persons as have refused to consent in writing to trial by summary court) . ' DETAIL FOR 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. PRESENT Captain . 1st Lieutenant . 2d Lieutenant . 2d Lieutenant , judge-advocate. 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 specification : Charg-e: 2 . Specification: . To which the prisoner pleaded: To the specification, " Guilty." To the charge, " Guilty." 1 See page 84, par. 6, mile. 2 The signature of the officer preferring the charge will not be entered in the record. 164 RECORD OF GARRISON COURT-MARTIAL. (In case testimony is taken, it is not recorded. 1 ) The judge-advocate announced that the prosecution here rested. The prisoner stated that he had no testimony to offer or statement 2 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 con- victions. The accused and judge-advocate then withdrew, and the court was closed and sentences him, Private , Company , Infantry, etc. The judge-advocate was then recalled and the court at . m., etc. Captain , President. ~~~~~ 2d Lieut. , Judge-Advocate. (A sine die adjournment will be 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. ) 1 Par 988, A. R. The record must give the names of Witnesses examined, both for the prosecution and defense, and will state the fact as to their having bean duly sworn. If the accused be sworn us a witness the record should show that it was at his own request. 2 Statements and arguments will not be reduced to writing in the record. RECORD OF REGIMENTAL COURT-MARTIAL. 165 SEC. II. REMARKS ON THE RECORD. 1. The decision and orders of the post commander, properly dated and over his official signature, will follow 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, except when convened at recruit depots and recruiting stations and other places exempted from the jurisdiction of commanders of territorial divisions and departments by paragraph 187, will be transmitted without delay by the post or regimental commander to department headquarters. Where such courts were convened at recruit depots, recruiting stations, and other exempted places, the reports and records of such courts will be forwarded directly to The Adjutant-Gen- eral of the Army." l RECORD OF A REGIMENTAL COURT- MARTIAL,.' 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). 3 DETAIL FOR THE COURT. < ( Complete record as in case of garrison court-martial. ) iPar. 991, A. R. 2 The form of record for a regimental court differs from that for a garrison or a general court only in respect to the order convening the court. 3 See page 85, par. 3, ante. 4 See page 85, par. 2, and page 108, note 1, ant*. 166 PROCEEDINGS OF RETIRING BOARD. CASE No. . PROCEEDINGS OF A RETIRING BOARD. Proceedings of an Army retiring board convened at ' by virtue of the following orders : SPECIAL ORDERS, j WAR DEPARTMENT, No. . j WASHINGTON, , 190-. EXTRACT. * * * * 10. Under instructions from the President, and in accordance with section 1246, Revised Statutes, an army retiring board is appointed to meet at , , from time to time, at the call of the president of the board, for the examination of such officers as may be ordered before it. DETAIL FOR THE BOARD. Colonel , Infantry. Lieutenant Colonel , adjutant general. Major , Medical Corps. Major , Infantry. First Lieutenant , Medical Corps. First Lieutenant , Infantry, recorder. Such journeys as it may be necessary for the mem- bers and recorder of the board to make in attending its sessions and returning to their proper stations are neces- sary for the public service. * * * * BY ORDER OF THE SECRETARY OF WAR: Major General, Chief of Staff. OFFICIAL : Adjutant General. PROCEEDINGS OF RETIRING BOARD. 167 , , 19-. The board met pursuant to the foregoing order at 11 o'clock a. m. PRESENT. Colonel , Infantry. Lieutenant Colonel , adjutant general. Major , Medical Corps. Major , Infantry. 1st Lieutenant , Medical Corps. 1st Lieutenant , Infantry, recorder. Captain , , appeared before the board pursuant to par. , Special Orders No. , War Department, 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. (or) that he objected to on the following grounds: (Insert objections.) The challenged member stated. (Insert the statement of the challenged member, who should be requested to respond to the challenge and in- form the board upon 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 requested that the chal- lenged member be sworn 1 on his voir dire, was duly sworn by the recorder, and testified as follows: Question by Captain : * * * # # The board was then closed, and, on being opened, its decision was announced that the objection was not sus- tained, (or) that the objection was sustained. (In the 1 For form of oath see page 31, ante. 168 PROCEEDINGS OF RETIRING BOARD. latter case the record should state that the challenged member then withdrew.) Captain was then asked whether he objected to any other member; to which, etc., as before. 1 The members of the board and the recorder 2 were then duly sworn. (// the officer desires to be retired, the record will con- tinue:) Captain was then asked whether he desired to be retired, and answered in the affirmative. He was then duly sworn as a witness, and testified as follows: Question by the recorder (or by the board) : 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 written one. If a written statement is submitted 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 ask further questions.) Q. Do you desire to make any further statement? ^ ( 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.) 1 Five being, under sec. 1246, R. S., the minimum number of members of a retiring board, it must, when reduced below that number by challenge, or if the bdard is left without the proportion of medical officers required by said section, adjourn and report the facts to the convening authority. When the board again meets the officer being examined will be accorded the right of challenge as before. 2-y there be a reporter, he will also be sworn. For form of oath see page 31, ante. PROCEEDINGS OF RETIRING BOARD. 169 1 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 disa- bility proceed ? A. . Q. Is the disability permanent? A. . Q. Is Captain 's disability such as to incapacitate him for active service ? A * * * * # (The examination of the witness should be conducted so as to bring out all material facts on the lines indi- cated.) Captain stated that Ije 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 Office of The Adjutant General of the Army, which were read to the board, and are at- tached, marked . Captain had no further evidence to submit nor statement to make. (When there is such evidence or statement, the record will duly 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 170 FORMS FOR SENTENCES. finds that said incapacity is (or is not) an incident of service. Tiie board then adjourned. l -, President of the Board. ~~ Recorder. FORMS FOR SENTENCES. In sentences imposing a loss of rank or files upon an officer the court may fix a place on the army list where the name of the accused will be placed as a result of the sentence, as, for instance, at the foot of the list of firbt lieutenants of infantry, or the court may mention the number of files to be lost, as, for instance, to lose ten files in military rank. In this case the court should not undertake to state where on the army list the name of the accused will appear. Form 1. Reduction: * * * " to be reduced to the ranks." 3 1 ( Or when the board wishes to hear the record read: ) The board then adjourned to meet at o'clock . m. Recorder. SECOND DAY'S PROCEEDINGS. , , 19. 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. Secorder. 2 It is not necessary that the proceedings should be authenticated by the signatures of all the members of the board. 3 See pages 59 and 60, and page 81, par. 13, ante. SUMMONS FOR MILITARY WITNESS. 171 FormS. Confinement: * * * "to be confined at hard labor, 1 under charge of the post guard, for ( ) days." Form 3. Forfeiture: * * * "to forfeit ( ) dollars of his pay, 2 now due or to become due." 3 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 allou-ances: * * * " to be dishonorably dis- charged the service of the United States, forfeiting all pay and allowances due him." Form 6. Dishonor able discharge, forfeiture of pay and allowances, and confinement : * * * " 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) (or, at such place) as the reviewing authority may direct, for ( ) years." To SUMMONS FOR MILITARY WITNESS. 4 , 19 You are hereby summoned to appear on the day of , 19 , at - - o'clock . m., before a general court-martial, convened at , by Special Orders, 1 Unless hard labor be imposed by a sentence it can not be required of the prisoner. 2 Detention of pay is no longer authorized; and under the acts of February 12, 1895 (28 Stat. L., 655), and March 16, 1896 (28 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. 4 See par. 11, page 38, ante. 172 SUBPCENA DUCES TECUM. No. , Headquarters , dated , 19 , as a witness for the in the case of . Judge-Advocate of the Court-Martial. SUBPCENA 1 FOB CIVILIAN WITNESS. UNITED STATES ) vs. > Subpoena. 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. SUBPCENA 1 DUCES TECUM. (Civilian witness.) UNITED STATES ) vs. [ Subpoena. 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 iFees must be tendered or paid under act of March 2, 1901, page 131, ante. See also par. 1, page 43, ante. SUBPCENA FOR DEPOSITION. 173 for the in the above-named case; and you are hereby required to bring with you, to be used in evidence 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. SUBPCENA FOR CIVILIAN WITNESS. (For deposition.) UNITED STATES } vs. > 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 at , detailed to take your deposition for use 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. RETURN OF SERVICE. (Indorsement of preceding writs.) 1 UNITED STATES vs. ) 1Q , 1U . I certify that I made service of the within subpoena on , the witness named therein, by personally 1 0n the back of each form of writ are forms for both certificate and affidavit. 174 WARRANT OF ATTACHMENT. delivering to him in person a duplicate of the same at , on the day of , 19. ,. being duly sworn, on his oath states that the foregoing certificate is true. Subscribed and sworn to this day of . 19 , before me. 1 TV ARRANT OF ATTACHMENT. UXITED STATES } vs. 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 . m., 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 1202 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 , 2 and 1 After service, as above indicated, the original subpoena should be at once returned to the judge-advocate of the court; if the witness can not be found, the judge-advocate should be so informed. 2 State, Territory, or District where the court sits. INTERROGATORIES AND DEPOSITION. 175 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. INTERROGATORIES AND DEPOSITION. 1 INTERROGATORIES. THE UNITED STATES ) . t The following interrogatories and cross-interrogatories to be propounded under the 91st Article of War, to , stationed (or residing)' 2 at , a witness for the prosecution (or defense)' 2 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 .jo ( 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 / 3 -, r^npM-fnllv for tions when read in court j" espec llly f 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, 1 See page 40, ante. - Erase the word inappropriate to the case. With the consent of the oppo- site party the deposition of a witness residing icitliin 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. 176 INTERROGATORIES AND DEPOSITION. 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 knowr him? Third interrogatory: ? Etc. First cross-interrogatory: ? Etc. First interrogatory by the Court: ? Etc. Dated at , this day of , 19. Judge-Advocate. President.^ HEADQUARTERS DEPARTMENT OF . , 19. , stationed (or residing) 2 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 r-. 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 sworn by me, , a 3 , stationed (or 1 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. 2 Erase the word inappropriate to the case. s Insert official character: as "Trial Officer Summary Court," "Notary Public," etc. ACCOUNT OF CIVILIAN WITNESS. 17? residing) 1 at , doth depose and say for full answers to the foregoing interrogatories, as follows: To the first interrogatory : - . Etc. . (Signature of witness.) Subscribed and sworn to before me this day of , 19-. I, , the officer designated to cause the depo- sition of the said - - to be taken on the foregoing interrogatories and cross-interrogatories, do certify that it was duly made and taken under oath. ACCOUNT OF CIVILIAN WITNESS 4 NOT IN GOVERNMENT EMPLOY. Form 13A Pay Department. Voucher No. . Pay, 190. The United States to , Civilian witness, Dr. Dollars. Cts. From , 190, to , 190: For mileage from to and return, being For allowance while in attendance on said court, from , 190. to , 190, as per certificate of Judge-Advocate hereon, days, at $ per day _. _ .__ ._ Total 1 Erase the word inappropriate to the case. 2 The jurat to be signed by the officer administering the oath, M'ho will add his official designation. (See page 40, par. 4, ante.) If the oath is ad- ministered by a notary public, his seal will be affixed to the deposition. 3 This certificate, regarded as the formal return , will be signed by th^ officer, civil or military, who has been designated to take, or cause to be taken, the deposition ; and will be signed by him whether or not he is the officer who administered the oath. 4 The forms for " Summons for a military witness," for " Subpoenas for a civilian witness," for a " Warrant of attachment," and for a deposition are obtained from The Adjutant-General. The forms for accounts of civilian witnesses and of reporters are obtained from the Paymaster-General. 65060-14 12 178 ACCOUNT OF CIVILIAN WITNESS. (Certification and account to be completely filled in by Judge- Advocate, or before signature by Judge-Advocate, without alteration or erasure thereafter.) I certify that -- , a civilian not in Govern- ment employ, has been in attendance as a material witness from - , 190, to -- , 190 , inclusive, be- fore a - court-martial, duly convened at this place, and that he was duly summoned thereto from - and was not furnished transportation by the Government for any portion of the journey. (NOT TO BE SIGNED IN DUPLICATE.) Place, - . -- , Date, - . -- , Judge- Advocate. 1 Paid by Check No. -- , on -- , dated -- , 190. for - . (To be completely filled in before signature by payee without alteration or erasure thereafter.) Received - , 190 , of - , Paymaster, U. S. Army, in cash - T ^ dollars, in full of above account. (NOT TO BE SIGNED IN DUPLICATE.) -- ; Witness. (The claimant will not sign the above receipt except when the payment is made in cash.) ACCOUNT OF CIVILIAN WITNESS (BY DEPOSI- TION) NOT IN QOVERNMENT EMPLOY. Form 13 C Pay Department. Voucher No. - . Pay, 190 The United States, to -- , Dr. Dollars. Cts. From , 190, to , 190: For mileage from to and return, being miles, at five cents per mile For allowance while in attendance, giving deposition for use before said court, from , 190 , to , 190, as per certificate hereon, days, at$ per day Total. 1 If the witness be summoned fo r attendance before a summary court, the summary court officer will make the necessary certificate. (Digest Opin. J. A. G., sec. 2406.) ACCOUNT OF CIVILIAN WITNESS. 179 (Certification and account to be completely filled in by officer, or before signature by officer, without alteration or erasure thereafter.) I certify that , a civilian not in Govern- ment employ, has been in attendance giving deposition for use of a court-martial convened under attached orders from , 190 , to , 190, inclusive, and that he was duly summoned thereto from , and was not furnished transportation by the -Government for any portion of the journey. (NOT TO UK SIGNED IN DUPLICATE. ) Place, . , Date, . , Judge-Advocate or other commissioned officer. Paid by Check No. , on , dated , 190, for $ . (To be completely filled in before signature by payee without alteration or erasure thereafter.) Received - , 190, of , Paymaster, U. S. Army, in cash T ^g dollars, in full of above account. (NOT TO BE SIGNED IN DUPLICATE.) , Witness. (The claimant will not sign the above receipt except when the payment is made in cash.) XOTES OX FORMS 13A AXD 13C. The Paymaster is, under paragraphs 999 to 1003, Army Regulations, 1908, governed by the following rules in the treatment of voucher for travel expenses of civilian witnesses before military courts: 1. The voucher must be accompanied by authenti- cated copy of the order convening the court or appoint- ing summary court. 2. The certificate of the jndge-advocate or summary court officer (on face of voucher) is required in all cases. 3. A civilian not in Government employ, duly sum- moned to appear as a witness before a military court, 180 ACCOUNT OF CIVILIAN WITNESS. or at a place where his deposition is to be taken for use before such court, will receive $1.50 a day for each day of actual attendance for such purpose, and 5 cents a mile from place of residence to place of trial or taking deposition, and return, except as follows: Porto Rico and Cuba, $1.50 a day, 15 cents a mile for necessary travel by stage or private conveyance and 10 cents by railway or steamship line. Alaska, east of one hundred and forty-first degree west longitude, $2 a day and 10 cents a mile; west of that degree, $4 a day and 15 cents a mile. Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Idaho, Washington, Oregon, Nevada, California, $3 a day, 15 cents a mile for necessary travel by stage or private conveyance, 5 cents by railway or steamship line, and $3 a day for the time necessarily occupied in such travel. (See A. R., 1000, amended by G. O. 128, 1908. Also R. S., 848; sec. 30, act June 6, 1900, 31 Stat., 332; act Mar. 2, 1901, 31 Stat., 954; act June 13, 1902, 32 Stat., 35; Regs. Atty. Gen., July 21, 1902; act May 27, 1908, Public 141.) A retired army officer is a civilian not in Govern- ment employ in contemplation of Army Regulation 1000. (lOComp., 51.) Civilian witnesses, not in Government employ, sum- moned to attend courts-martial in the Philippine Islands, are entitled to the per diem and mileage allowed witnesses in attendance upon United States courts, i. e., $1.50 per day for each day in attendance on the court, and 5 cents per mile for the distance traveled to and from the court. If furnished with transportation by the Government, 42.858 per cent of the 5 cents per mile will be deducted as cost of trans- portation furnished and 57.142 per cent allowed for subsistence and other expenses of the witness. An employee of the civil government of the Philip- pine Islands, paid from insular funds, is not in the employ of the Government within the meaning of Army Regulation 999. ACCOUNT OF CIVILIAN WITNESS. 181 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 re- quired by law, he will at once be tendered or paid by the nearest paymaster these fees and mileage and will thereupon be again called upon to comply with the re- quirements of law. Civilian witnesses will be paid by the Pay Department. (A. R., 1001.) 4. The certificate of the judge-advocate will be evi- dence of the fact and period of attendance and place from which summoned, and will be made on the voucher. 5. Upon execution of the certificate the witness will be paid upon his discharge from attendance, without awaiting performance of return travel. The charges for return journeys will be made upon the basis of the actual charges allowed for travel to the court. No other items will be allowed. 6. Travel must be estimated by the shortest usually traveled route by established lines of railroad, stage, or steamer the time occupied to be determined by the official schedules, reasonable allowance being made for unavoidable detention. 7. Whenever needed, judge-advocates can procure blank accounts for civilian witnesses from any army paymaster or the Paymaster-General's office. The ac- counts may then be made out upon the witness's dis- charge from attendance. If no paymaster be present at the place where the court sits, the accounts, authen- ticated as above directed, may be transmitted to any paymaster with confidence that the witness will receive his pay without unnecessary delay. 8. Accounts of citizen witnesses are not transferable. (See Circular 13, A. G. O.. 1895.) 9. Signature of witnesses when signed by mark must be witnessed. 182 ACCOUNT OF CIVILIAN WITNESS. ACCOUNT OF CIVILIAN WITNESS IN GOVERN- MENT EMPLOY. Form 13B Pay Department. Voucher No. . Pay, 190 . The United States, to , Civilian witness, Dr. From , 190, to , 190: For actual cost of travel from to and return, as per memorandum attached . For actual cost of meals and rooms while traveling to and from said court between above dates, inclu- sive, days For actual cost of meals and rooms while in attend- ance on said court from , 1!JO ,to , 190 , as per certificate of the Judge-Advocate hereon, days (see note 7, post) Total 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 tte journey was performed without unnecessary or avoidable delay. , Witness. SWORN to and subscribed before me at , on this day of , 190. Judge-Advoca te. Paid by Check No. , on , dated , 190, for (To be completely filled in before signature by payee without alteration or erasure thereafter.) Received , 190 , of , Paymaster, U. S. Army, in cash T o 7 dollars, in full of above account. (Not to be signed in duplicate.) , Witness. (The claimant will not sign the above receipt except when the payment is made in cash. ) ACCOUNT OF CIVILIAN WITNESS. 183 (Certification and account to be completely filled in by Judge-Advocate, or before signature by Judge-Advocate, without alteration or erasure thereafter. ) I certify that , a civilian in Government employ, has been in attendance as a material witness from , 190 , to , 190 , inclusive, before a court-martial, duly convened at this place, and that he was duly summoned thereto from . (NOT TO BE SIGNED IN DUPLICATE.) Judge-Advocate. l Place . Date , 190. NOTES ON FORM 13B. The Paymaster is, under paragraphs 999 to 1003, Army Regulations, 1908, governed by the following rules in the treatment of voucher for travel expenses of civilian witnesses before military courts: 1 . The voucher must be accompanied by authenticated copy of the order convening the court or appointing summary court. 2. The affidavit of witness and judge-advocate's or summary court officer's certificate are required in all cases. 3. A retired army officer is a civilian not in Govern- ment employ in contemplation of Army Regulation 1000. (lOComp., 51.) 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 re- quired by law, he will at once be tendered or paid by the nearest paymaster these fees and mileage and will thereupon be again called upon to comply with the requirements of law. Civilian witnesses will be paid by the Pay Department. (A. R., 1001.) 4. The items of expenditure authorized in paragraphs 999 to 1003, Army Regulations, will be set forth in detail in a memorandum which will be attached to each 1 See note 1, page 178, ante. 184 ACCOUNT OF CIVILIAN WITNESS. voucher. The correctness of the items will be attested by the affidavit of the witness, to be made, when practi- cable, before the judge-advocate. 5. The certificate of the judge-advocate will be evi- dence of the fact and period of attendance and show place from which summoned, and will be made on the voucher. 6. Upon execution of the affidavit and certificate the witness will be paid upon his discharge from attend- ance, without awaiting performance of return travel. The charges for return journeys will be made upon the basis of the actual charges allowed for travel to the court. No other items will be allowed. 7. Civilian witnesses in Government employ will receive as follows: (a) Amount actually paid for cost of transportation or travel fare. (b) 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 car 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 unavoidably consumed in travel or in attendance on the court. 8. Travel must be estimated by the shortest available usually traveled route ; the charge for cost of travel items (a), (6), (c) by established lines of railroad, stage, 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 unavoidable detention. 9. The voucher, or the order for attendance, will be presumed to show in all cases, by indorsement or other- wise, if transportation in kind or commutation of rations has been furnished. ACCOUNT OF CIVILIAN WITNESS. 185 Transportation in kind will, for any distance covered thereby, be a bar to payment of item (a). Indorsements of transportation furnished are scru- tinized 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 court does not require the witness to leave his station. (This applies only to civilians in Government employ.) 1 1 . Compensation to civilians in or out of Government employ, for attendance upon civil courts, is payable by the civil authorities. (A. R., 1004.) 12. If the 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-advocate can procure blank accounts for civilian witnesses from any army paymaster or the Paymaster-General's office. The ac- counts may then be made out upon the 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, with confidence that the witness will receive his pay without unnecessary delay. 14. Accounts of citizen witnesses are not transferable. (See Circular 13. A. G. O., 181)5.) 15. Signature of witnesses when signed by mark must be witnessed. 186 ACCOUNT OF REPORTER. ACCOUNT OF REPORTER.' Form 27 Pay Department. Voucher No. . Pay, 19. The United States, to , Reporter, Dr. Date. 190. Dollars. Cents, To services as a reporter before a con- vened at , pursuant to Special Orders, No. , Department , , 190 : To hours before the , at (Court, board, or commission.) $1 per hour _ _ To words, at 15 cents per 100 words To words, at 10 cents per 100 words To words, carbon copies, at 2 ceuts per 100 words ; ; To days in going to, in attendance on, and returning from said , at (Court, board, or commission.) $3 per day _ _. To mileage for travel between and in going to and returning from the court, being miles, at cents a mile. _ Total (Certification and account to be completely filled in by Judge-Advocate, before signature by Judge- Advocate, without alteration or erasure thereafter. ) I CERTIFY that was employed by me as a reporter for a , under the annexed authority, and that the account for his services as stated above is cor- rect and just. (NOT TO BE SIGNED IN DUPLICATE.) (Judge-Advocate or Recorder.) Paid by check No. on , dated , 19 , for $ l The judge-advocate of a court-martial in any important case will confer with the officer of the Pay Department, whose duty it is to pay the judge- advocate's vouchers in behalf of reporters and witnesses, as to the adoption of measures with a view to prevent fraud in the payments for services rendered by reporters and witnesses. (Cir. No. 74, W. D., 1009.) ACCOUNT OF REPORTER. 187 Notes on Form 27 Pay Department. 1. The method of employment of stenographic re- reporters for courts-martial, military commissions, or courts of inquiry, and their compensation as provided by paragraph 99G, Army Regulations, amended by Gen- eral Order 132, War Department, 1908, are as follows: (Here follows paragraph 996, Army Regulations, 1908, as given in paragraph 2, pages 26 and 27, ante, except the last paragraph on page 27.) 2. Stenographic reporters for retiring boards can only be employed on the authority of the Secretary of War obtained in advance of the employment. The authority must be filed with the voucher on which payment is made. (Decision of the Secretary of War, April 24, 1879.) 3. The authority for the employment of a reporter for court-martial, court of inquiry . military commission, or retiring board, and for carbon copies of proceedings, must be filed with the voucher 011 which payment is made. 4. The mileage for a reporter is the same as is allowed for civilian witnesses not in Government employ, except that when Government transportation is furnished no mileage is allowed. 5. Copies of the order appointing court-martial, court of inquiry, military commission, or retiring board must be filed with the voucher. 188 FORto FOR GENERAL ORDERS. FORM FOR GENERAL ORDERS. HEADQUARTERS DEPARTMENT OF , -, , 19-. GENERAL ORDERS, ) No. . f I. Before a general court-martial which convened at Fort , , pursuant to Special Orders, No. , Headquarters Department of , , 19 , were ar- raigned and tried . 1. Private A B , Troop , U. S. Cav- alry, alias Private C D , Company , U. S. Infantry. CHARGES. Charge I: Desertion, in violation of the 47th Article of War. Specification 1: In that Private A B , Troop , U. S. Cavalry, alias Private C D , Com- pany , 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 at , on or about the of , 19. Specification 2: In that Private A B , Troop , U. S. Cavalry, alias Private C D , Company , U. S. Infantry, a soldier in the service of the United States, did desert the same at on or about the of , 19 , by enlisting under the name of C D , in Company , U. S. Infantry, without a regular discharge from said Troop , U. S. Cavalry. Charge II: Fraudulent enlistment, in violation of the 62d Article of War. Specification: In that Private A B , Troop , U. S. Cavalry, alias Private C- D , Com- pany , U. S. Infantry, a soldier in the service of the United States, did, without a discharge from said regiment of cavalry, fraudulently enlist in Com- pany , U. S. Infantry, at , on the of , 19 , under tlie name of C D . FORM FOR GENERAL QRDEKS. . 181) To the 1st Specification, Charge I: " Not Guilty." To the 2d Specification, Charge I: " Not Guilty." To Charge I: " Not Guilty. " To the Specification, Charge II: " Not Guilty." To Charge II: " Not Guilty." FINDINGS. Of the 1st Specification, Charge I: " Guilty." Of the 2d Specification, Charge I: " Guilty." Of Charge I: "Guilty." Of the Specification, Charge II: " Guilty." Of Charge II: "Guilty." To be dishonorably discharged the service of the United States, forfeiting all pay and allowances due him, and to be confined at hard labor in the United States Military Prison, Fort Leavenworth, Kans., for ( ) years. ACTION. 1 The sentence in the foregoing case of Private A B , Troop , - - U. S. Cavalry, alias Private C D , Company , U. S. Infantry, is ap- proved and will be duly executed. ******* By command of Brigadier General : Adjv tant- General. 1 Where the sentence requires the confirmation of the President, the action of the convening authority and the confirmation of the sentence may be stated briefly, varying with the facts, substantially as follows: " The finding of guilty of the specification, charge, was disap- proved by the convening authority. The sentence having been approved by him and the record of trial forwarded for the action of the President, under the 106th Article of War, the following are his orders thereon * * *" or (if tJtere be no disapproval of any finding): "The sentence having been approved by the convening authority and the record of trial forwarded for the action of the President, under the 106th Article of War, the following are his orders thereon * * *." 190 HABEAS CORPUS RETURN. Form A. HABEAS CORPUS BY UNITED STATES COURT. RETURN 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 military convict 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 , 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 , -7, the said , being then a minor, did fraudulently enlist 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 . The said has been placed in confinement (or "arrest, "as the case may be), and formal charges have been preferred against him for said offense, a copy of HABEAS CORPUS RETURN. 191 which, duly certified and verified, 1 is hereto annexed; and that he will be brought to trial thereon as soon as practicable before a court-martial, 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, duly certified and verified, 1 is hereto an- nexed"). (If the party held is a military convict, 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 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, duly certified and verified, 1 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 1 The copy of the charges will be certified by the post adjutant and sworn to before an officer authorized to administer oaths for military administra- tion, in the following form: I hereby certify that the foregoing is a full and true copy of the original charges preferred against , and that the same are in the usual form of military charges, and conform to the rules regulating military pro- cedure. Post Adjutant. Sworn to and subscribed before me this of , 19. Judge- Advocate of Court-martial. (Or " Trial Officer of Summary Court"). The copy of the order convening the court, or publishing the sentence, will be certified and verified in a similar manner. 192 HABEAS CORPUS RETURN. set forth in this return prays this honorable court to dismiss the said writ. i 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 , , INSTRUCTIONS AS TO RETURNS TO WRITS OP HABEAS CORPUS. The following instructions is regard to returns under paragraphs 1008 and 1009, Army Regulations, in the cases of soldiers who have committed military offenses and are held for trial or punishment therefor, and of military convicts, are for the information and guidance of all concerned : 1. The return under paragraph 1009, Army Regula- tions, will be made in accordance with Form A (see page 190, ante), and will refer, as in last paragraph of HABEAS CORPUS BRIEF. 193 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 of the Army the action taken by the court and f orward a copy of the opinion of the court as soon as it can be obtained. 2. The return under paragraph 1008, Army Regula- tions, will be made in accordance with Form B (see page 192, 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 WRIT OF HABEAS CORPUS ISSUED BY UNITED STATES COURT IN CASE OF A SOL.DIER WHOSE DISCHARGE IS SOUGHT UNDER SECTION 1117, REVISED 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 parents or guardian, if at the time of the filing 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) When 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 65060 14 13 194 HABEAS CORPUS BRIEF. 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. (6) 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 Federal 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 contract only, but effects a change of status. It is not, therefore, like an ordinary contract, voidable by the infant. * * * The contract of enlistment was good so far as the petitioner is concerned. He was not only dc 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 purpose." In the case of Solomon v. Davenport, the deserter was held by a sheriff under a warrant of a United States commissioner. HABEAS CORPUS BRIEF. 195 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 and 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 IP 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; In re Miller, 114 Federal Reporter, 838; U. S. vs. Reaves, 126 Federal Reporter, 127; In re Lessard, 134 Federal Reporter, 305; Ex parte Anderson, 16 Iowa, 595; McConologue's case, 107 Massachusetts, 170; In re Carver, 142 Federal Reporter, 623. 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. 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, 196 HABEAS CORPUS BRIEF. 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 his parents or guardian, required by Eevised Statutes, section 1117, is not void, but voidable only, and while he 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 on him by a court-martial for a violation 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 decision of the latter court (court-martial) before the question of the validity of his enlistment can be deter- mined 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 arrested on charges of desertion, he should not be released by the court ^ while proceedings for his trial by the military authorities are pending. By act of July 27, 1892, "fraudulent enlistment, and the receipt of any pay or allowance thereunder, is ... declared a military offense and made punishable by court-martial under the 62d Article of War." A minor who procures his enlistment by representing himself to be over age commits this offense, and the statute au- thorizes his punishment therefor. In general it may be stated that where a 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., sees. 1258 and 1264, and notes. ) HABEAS CORPUS BRIEF. 197 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. In re Miller (114 Fed. Rep., 838), it was held that a minor 16 years old or over ' ' enlisting without the consent of his parents, on representation that he is of age, becomes a soldier amenable to military jurisdic- tion for military offenses, and subject to release from service only on application from his parents, ivho can not prevent his court-martial for past military offenses." In the opinion of the court (page 842) it is said: The common law, unaided by statute, fully recognized the parents' rights to the custody and services of their minor child; but it has never been held that they could, by the writ of habeas corpus or otherwise, obtain his custody and his immunity when he was held by an officer of a civil court of competent jurisdiction to answer a charge of crime. His enlistment having made the prisoner a soldier notwithstanding his minority, he is answerable to the military law just us the citizen who is a minor is answerable to the civil law. The parents can not prevent the law's enforcement in either case. * * * These views were cited with approval in U. S. v. Reaves (126 Fed. Rep., 127), where, upon full consid- eration of the authorities, the circuit court of appeals remanded Reaves, a minor who had deserted from the Navy, to the custody of the naval authorities as repre- sented by the chief of police who had apprehended him. See also in re Carver (142 Fed. Rep., 623), where the case of U. S. v. Reaves, supra, was followed, the decision of the court, as stated in the syllabus, being as follows: "A minor under the age of 18 years, who unlawfully enlisted in the Army without the consent of his father, can not be discharged from the service on a writ of habeas corpus sued out by his father so long as he is under arrest for desertion, nor until he has been dis- charged from such custody or has served the sentence imposed on him by the military tribunal." INDEX. Abatement of punishment : Page. for good conduct in confinement 72 Abatement : plea in 33 Absence : of member from meeting of court 22, 144 See Department commander. Absence without leave: effect of conviction of, on reward for apprehension 50 effect on cost of transportation 50 finding of, under charge of desertion 46 from camp, 1 mile 109 from duty as company or hospital cook 56 from fatigue, extra, or special duty 51 from parade, etc., forms for charges 136 from parade, etc., limit of punishment 54 from parade, etc., offense of 109 from troop, etc., form for charge 136 from troop, etc., limit of punishment 53 from troop, etc., offense of 109 Abuse of authority: by noncommissioned officer, limit of punishment 56 Accounts : of reporter, form for 186 of witness, forms for 177, 182 of witness, rules governing 179185 of witness, to deposition 41, 178 Accouterments : accountability for 104 selling, losing, etc., form for charge 134 selling, losing, etc., limits of punishment 53 selling, losing, etc., offense of 105 Accused : arraignment of 32, 119 challenge by, how allowable 28 challenge by, how recorded 149, 150 consent of, to trial by summary court 19, 82 entitled to counsel before general court 25 entitled to have witnesses summoned 34 entitled to testify 45 (199) 200 INDEX. Accused Continued. Page. judge-advocate, how far counsel 23 may submit statement, etc 46 stands mute 33 to be advised of his rights 23 uniform of, before court 21 will not appear in irons 21 Accuser : can not convene general court 13 can act as summary court 78 challenge of member on ground of being 29 should not act as judge-advocate 29 Acquittal : effect of, on reward for apprehension 50 finding in case of virtual 47 form for recording 156 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 form for recording 153 Advising desertion: offense of 111 Alarms : false, offense of occasioning 110 Ammunition : offense of purchasing, from soldier, etc 115 offense of wasting, selling, etc 105 Appeal : from regimental to general court ._ 108 Appointing authority. See Convening authority. Arms: accountability for 104 offense of casting away 110 offense of making false return of 103 offense of selling, losing, etc 105 offense of selling, losing, etc., limits of punishment 53 Arraignment : accused and judge-advocate stand 32 accused not to be in irons at 21 accused stands mute at, action by court 33 additional charges not introduced after 20 form for recording 150 procedure for 24, 32 INDEX. 201 Arrest : Page. applications of officers in 7 breach of, by officers 116 general provisions regarding 9 of deserters, reward for 50 of officers 6, 116 of soldiers 8 omission of, as affecting jurisdiction 6, 8 protracted, a ground for mitigation 69 Arson : offense of, in time of war 113 Articles of war: armies of United States governed by 102 officers shall subscribe .- 102 read once in six months to troops 127 read to recruits 102 Assault with intent to kill: form for charge 143 limit of punishment 5.~ Assembling of court : procedure on 21 Attachment of witness. See Witness and Warrant of attachment. Attendance of witness: See Witness. Authentication of proceedings. See Proceedings. Authority : abuse of, by noncommissioned officers 56 Autrefois acquit : plea of 33 Ball and chain: as punishment 49 punishment by, in extreme cases only 50 report of use to department commander 70 Blanks : accounts for civilian witnesses, where obtained 177 summons, subprenas, etc 175 Branding of soldiers: forbidden _. 122 Breach of arrest: by officers 116 Bread and water diet: confinement on, as punishment 49 Bribes : officer taking 103 202 INDEX. Burglary: Page. offense of, in time of war 113 under 62d Article, form for charge 143 under 62d Article, limit of punishment 55 Cadets. See Military Academy. Camp: introducing liquor into, limit of punishment 56 lying out of, without leave r 108, 109 retainers of, jurisdiction over ' 15 soldiers 1 mile from, without leave 109 violence to persons bringing provisions to 112, 113 Candidate for promotion: punishment of 49 triable by general court only 15 Capital crime: desertion in time of peace not a 42 meaning of 42 Captured stores: disposition of 104 Cashiering: meaning of 104 Certificates : penalty for signing false , 105 Challenge (of member of court) : court determines validity of 28 grounds for 28, 29 in absence of, member how excused 29 judge-advocate not challengeable 29 record in case of 149, 150 summary court not subject to 28 Challenge (to fight duel) : duty to refuse 107 sending, accepting, etc 107 upbraiding for refusing 107 Chaplains : not detailed as members of courts 11 Character : evidence of 33 Charges : accompanied by what 19, 20. 80 act charged under two or more forms 19 additional 20 consideration of, by post commander 19 correction of, by judge-advocate 22 INDEX. 203 Charges Continued. Page. delay in trial by summary court on 79 forms for 134 instructions for drawing 1620 investigation of 19 joint, when 17 prisoners without written, when released 9, 10 requisites of 16 service of, upon officer arrested 7, 8 specifications, how drawn 17, 18 specifications, not in alternative 18, 19 striking out, withdrawing, etc 20 to show consent to trial by summary court 19, 82 to'whom submitted 19 when and by whom submitted 9 Civil court: can not review proceedings of military 13 military, ordinarily, gives precedence to 14 previous convictions by, inadmissible 48 Civil crime: act as being both military offense and 14 Civil magistrate: delivery of accused officer or soldier to 113 Clemency : certain applications for 67 recommendation to 65 Clothing: form for charge for selling 134 limit of punishment for selling 53 limit of punishment for losing or spoiling 53 offense of selling, losing, etc 19, 105 Closed session: judge-advocate excluded 25 Company commander: arrest or confinement of soldiers reported to 9 copy of summary court record furnished to 83 Commanding officer: disrespect to, limit of punishment 53 disrespect to, offense of 106 instructions to, regarding summary courts 82 may authorize departure of certain witnesses 42 must investigate charges 19 power to order court of inquiry 125 refers or forwards charges 19 report of prisoners to 9 204 INDEX. Command : Page. suspension from, as punishment 49 when different corps join 126 Commands : officers to keep good order in 112 Commutation of punishment: power of reviewing authority 67 Company cook: limit of punishment for absence from duty as 56 limit of punishment for drunkenness on duty as 54 Composition of courts-martial. See Courts-martial. Conduct to the prejudice, etc.: forms for charges 140-144 instruction regarding charges 17 limits of punishment 55-57 Conduct unbecoming, etc.: forms for charges 140 instructions regarding charges of 17 Confinement before trial: enlisted men in, how designated 8 general provisions regarding 9 long, a ground for mitigation 70 of officers 7 of soldiers 8 report of, to soldier's company commander 9 Confinement after trial: abatement allowed 73 enlisted men in, how designated 71 forms for sentence to 170 on bread and water diet 49, 60 personal effects of escaped prisoners 71 prisoners forwarded to place of 71 prisoners put in irons, report made 70 second sentence to, begins when 73 sentence to, begins when 72 sentence, expiration of, to be verified 73 separation of prisoners in 70 solitary, duration of 60 without hard labor not to be imposed 49 Constitution of courts-martial. See Courts-martial. Contempt : courts-martial may punish for 120 Continuance. See Postponement. Contract surgeon, etc.: authority to sign charges 20 disobedience of orders of - 106, 135 ineligible as member of court 11 INDEX. 205 Convening authority: Page. control of, over court 13 decision of, as to number of members 12 effect of absence on appointing power 13 of garrison court 83 of general court 12, 13 of regimental court 85 of summary court 78 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 Convening order: for garrison court 162 for general court 147 for regimental court 165 Convictions. See Previous convictions. Correction of proceedings. See Revision of record. Correspondence : with the Judge-Advocate General 76 with the enemy 110 Counsel for accused: arguments of, oral or written 26 before inferior courts 26 by whom detailed 25 duties of 26 introduction of, before court 149 judge-advocate, how far 23 questions of, oral or written 26 Courts-martial : all troops subject to trial by 14 assembling of 21 authority over charges 20 can not excuse member 29 can not order nolle prosequi 20 civil courts can not review proceedings of 13 classification of 11, 12 composition of 11 control of convening authority over 13 hours of session repealed 121 inferior 11, 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 14 206 INDEX. Courts-martial Continued. Page, 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 __ 34 jurisdiction of, when ended 14 may punish for contempt 120 object of, as military tribunal 6 organization of : 20 Garrison courts-martial appointed in what commands 83 appointed when 84 composition, etc., of 83 counsel before 26 disposition of proceedings of 76 form for order and record 162 jurisdiction of 83 limit of punishing power 84, 119 testimony, etc., will not be recorded 84. 164 General courts-martial appeal from regimental court to 108 closed session of 25 composition of 11 constituted by whom 12, 13 counsel. See Counsel for accused. disposition of proceedings of 75 form for order and record 147 jurisdiction of 15 procedure of 21 record of, copy furnished accused 76, 125 record of proceedings . 63 revision of record 65 Regimental courts-martial composition, etc., of 85 counsel before 26 disposition of proceedings of 76 form for order and record 165 jurisdiction of 85 limit of punishing power 84, 119 testimony will not be recorded 84 under 30th Article of War 108 Summary courts accuser can act as 78 act establishing - 129 appointment of 78 INDEX. 207 Courts-martial Continued. Page. Summary courts Continued. composition, etc., of 78 consent to trial by 82 copies of record, furnished company commanders 83 counsel before 26 delay in trial by 79 discretion as to trial by 7 general instructions regarding . 82 hours of session 82 jurisdiction of 79 limit of punishing power 79, 82, 119 may be held on Sunday in emergency 82, 83 monthly report of cases tried, form for 161 names of officers who act as, reported 83 not challengeable 28 power of 79 previous convictions considered by 80 procedure of 80 record, form for 159 report of cases tried by, to be made monthly 19, 76 reviewing authority of 81 Courts of inquiry : authentication of proceedings of 88, 126 composition of ._ 87, 125 constituted by whom 86, 125 form of convening order 87 how ordered 125 jurisdiction of 86 oath of members and recorder 87, 125 object of, as a military tribunal 6 opinion of, when given 87, 126 organization of 87 procedure of 87 proceedings, carbon copy, disposition of _. 27 record of, as evidence 126 record of proceedings 88 reporter for, employment of 87 witnesses before 87, 125 Cowardice : offense of 110 sentence for, how published 122 Crime : act as being both military offense and civil 14 capital, desertion in time of peace not a 41 capital, offender delivered to civil magistrate 113 during rebellion, etc 113 208 INDEX. Crime Continued. Page. officers accused of, subject to arrest 116 of fraud against the United States 114, 115 soldiers accused of 116 to the prejudice, etc 113, 116 Criminals : enlistment of, prohibited 102, 103 Customs of war or service: as affecting punishment 60 as part of unwritten military law _ 6 Days: meaning of word in sentence 72 Death, sentence of: confirmation of 123 suspension of 67, 124 vote upon 61 Deceased soldiers : disposition of effects of 127 Defects in proceedings. See Revision of record. Defense : how far assisted by judge-advocate 25 Delay: in-trial by summary court 79 when and by whom granted 31 Dental surgeon. See Contract surgeon, etc. Department commander: as accuser or prosecutor 13 authorized to convene courts 13 authorized to review proceedings 65, 66 can not delegate his function as reviewing au- thority 66 charges forwarded to 19 effect of absence of, on appointing power 13 may permit trial of n. c. o. by inferior courts 16 report of irons on prisoner to 70 Deposition : duty of officer ordered to obtain 4'} fees of civil officer taking 41, 45 fees of witness giving deposition 41 form for 177 may be taken before court assembles 40 oath to, by whom administered 40 pay accounts of witness giving 41 procedure to obtain 40 submission to court _ 40 INDEX. 209 Deposition Continued. Page, taken by consent where witness resides in State _ 39, 175 when admissible ._ 39, 121, 175 when not admissible 39, 41 Deprivation of privileges : of " candidate for promotion " 49 Deserter : enlistment of, prohibited 102 from Navy or Marine Corps 102 harboring, offense of 111 surgeon's report to accompany charges against __ 20, 145 to serve full term 111 limits of punishment of 52 Desertion : after tendering resignation 111 by enlistment in another regiment 111 evidence of, after plea of guilty 32, 33 form for charge of 138 in time of peace, not a capital offense 41, 110 judge-advocate's duty 24 limits of punishment 52 offense of 110, 111 offense of advising or persuading 111 previous convictions of 52, 59 statute of limitation for _. 34, 123 Discharge, dishonorable : form for sentence of 171 . of an officer for cowardice or fraud 122 of post noncommissioned staff and hospital steward 49 on account of conviction of two or more offenses 59 on account of previous convictions 59 postponement of date fixed by sentence 69 Discharge from service : how made 103 Dismissal : by court-martial, appointed by division or brigade commander 124 for cowardice, etc., where published 122 in time of peace, sentence confirmed 123 of general officers 124 suspension of sentence of 67, 124 Disobedience of orders: involving defiance of noncommissioned officer 56 of a contract surgeon, etc 135 of a noncommissioned officer, form for charge 141 65060 14 14 210 INDEX. Disobedience of orders Continued. Page, of a noncommissioned officer, offense under 62d Article 135 of a sentinel, limit of punishment 57 of an officer, etc., quelling fray, limit of punishment 53 of an officer, etc., quelling fray, offense of 10G of an officer, form for charge 135 of an officer, offense of 106 simple neglect of standing order 135 Disorderly conduct in quarters: limit of punishment 56 Disorders and neglects: offenses under 62d Article 115 Disposition of records: of general courts 75 of inferior courts 76 Disrespect : regarding President, etc., offense of 106 to commanding officer, limit of punishment 53 to commanding officer, offense of 106 to sentinel, limit of punishment 57 Divine service : irreverent behavior at 111 officers, etc., recommended to attend 111 Double amenability: in case of disorder near post 56 to civil and military jurisdictions 14 Drunkenness : at guard mounting 17 at post or in quarters, limit of punishment 56 on duty, form for charge 137 on duty, limits of punishment 54 on duty, offense under 38th Article 17, 109 Drunkenness and disorderly conduct: form for charge 141 limits of punishment 56 near post, causing conviction by civil authorities 56 Duel: challenge to fight 107 sending, accepting challenge, etc 107 upbraiding for refusing challenge 107 Duty: conniving at hiring 100 hiring 109 INDEX. 211 Effects: Page. of deceased officers and soldiers 126, 127 of escaped prisoners 71 Embezzlement : of United States property 55, 115 offense under 62d Article, limit of punishment 55 specifications for, to state value of property 55 Enemy: correspondence with '. 110 misbehavior before 110 relieving, harboring, etc 110 trading with '127 Enlistment : fraudulent, definition of 14 fraudulent, forms for charges 142 fraudulent, limits of punishment 56 fraudulent, offense under 62d Article 110 oath of 102 of certain classes prohibited 102 unlawful, penalty for making __ 102 Escape of prisoner: disposal of effects of prisoner _. 71 effect on jurisdiction of court 15 form for charge for suffering 141 limit for suffering : 56 Evidence : common-law rules of, ordinarily followed 45 proceedings of court of inquiry as 126 Examination of witness. See Witness. Experts : employment and pay of 43 Exposure of person: limit of punishment 57 False alarms: penalty for creating 110 False certificate: penalty for signing 105 False muster: penalty for making ._ 103, 105 penalty for signing, etc., roll containing 105 False report: by noncommissioned officer, limit of punishment 56 False return: penalty for making 103 212 INDEX. False swearing: Page. distinguished from perjury 144 limit of punishment 55 Fees of witness. See Witness. Finding: in case of virtual acquittal 47 of guilty of lesser kindred offense 46 of guilty of part of specification 46 of guilty under general instead of specific article 47 reviewing authority can not change 47 Fine: as a punishment 49 See Forfeiture of pay. Flogging: prohibited _. ._ 49, 122 Forcing a safeguard: offense of 113 Forfeiture of pay: as a punishment 49 can be made only in favor of United States 50 for irreverent behavior 111, 112 for profanity 112 forms for sentences to 173 of amount paid for apprehension 50 remission of sentence 69 Forgery : under 60th Article, limit of punishment 55 under 62d Article, limit of punishment 55 Former trial: plea of 33 Forms : for accounts of civilian witnesses 177-185 for accounts of reporters 186 for charges 134 for interrogatories and deposition 175, 176 for monthly report of summary court cases 161 for record of summary court 159 for record of garrison court 162 for record of general court 146 for record of regimental court 165 for return to habeas corpus of State court 192 for return to habeas corpus of United States court 190 for revision of record, general court 158 for sentences 170 for general order publishing proceedings 188 INDEX. 213 Forms Continued. Page. for statement of service 145 for subpoena duces tecum 172 for subpoena for civilian witness 172 for subpoena for deposition 173 for summons for military witness 171 for surgeon's report on alleged deserter 145 for warrant of attachment 174 Fort Leavemvorth, Kans. : United States military prison and branches 67 penitentiary at, designation of 68 Fraud: administration of oaths in investigation of 31, 132 offenses of, under 60th Article 114 officer dismissed for 122 Fraudulent enlistment. See Enlistment. Frays : power to quell 106 refusing to obey officer, etc., quelling, limit of pun- ishment 53 Gambling: encouragement of, by noncommissioned officer, limit of punishment 56 Garrison court-martial. See Courts-martial. Garrison prisoners: who designated as 70 General and special orders: as part of written military law 6 publishing proceedings 69 General court-martial. See Courts-martial. General officers: power of, to convene courts 13 sentences regarding 124 Good conduct in confinement: abatement for 72 Good order: officers to keep, in their commands 112 Grievances : of officers 108 of soldiers 108 redress for 108 Guard : drunkenness on, form for charge 137 drunkenness on, limit of punishment 54 drunkenness on, offense of _. 109 214 INDEX. Guard Continued. Page. for nrisoners conveyed to place of confinement 71 member of, drinking with prisoner, limit of punish- ment 57 prisoners delivered to, charges against 9 prisoners under charge of, when released 9 quitting, form for charge 137 quitting, limit of punishment 55 quitting, offense of 110 Guard duty: as a punishment, forbidden 50 Guard mounting: drunk at, limit of punishment 54 Habeas corpus: forms for return to writ of 190-193 instructions as to returns 36, 73, 192 minority as a ground for, brief 193 officers served with, action required 36,73 writ issued by State court 37, 74, 192 writ issued by United States court _. ._ 36, 75, 190 writ issued in Philippines, etc 74 Harboring: deserter 111 enemy 110 Hard labor: as a punishment 49 forms for sentences to 171 power of inferior court to award 119 Hiring duty. See Duty. Horse : limit of punishment for losing or spoiling 53 limit of punishment for selling 53 offense of selling, etc 105 Hospital cook: limit of punishment for absence from duty as 56 Hospital sergeants, 1st class: arrest of 8 confinement of jurisdiction over 15 may be discharged, but not reduced punishment of 49 Hours of session: article prescribing, repealed 121 not to interfere with routine duties 21 of summary court record of _. 1*7 INDEX. 215 Indecent exposure: Page. limit of punishment 57 Inferior courts-martial : courts so designated 12 disposition of records of TG, 77 instructions regarding 12 punishing power 119 Inquiry, Courts of. See Courts of inquiry. Insane or intoxicated person: enlistment of 102 Insubordination : toward noncommissioned officer, limit of punish- ment 56 Interpreter : employed by order of court 28 oath of 24, 31 pay of 28 record relating to 350 Interrogatories and deposition. See Deposition. Introducing liquor into camp, etc.: limit of punishment _ 56 Irons on prisoner: as a punishment 49, 50 removed on arraignment 21 reported to department commander _. 70 Irreverent behavior: at divine service 111 Joint charges: when allowed 17 Judge-Advocate-General : applications to, for copies of records 76 correspondence with 76 proceedings in certain cases forwarded direct to _- 76 revises and preserves records of general courts 75 Judge-advocate of court-martial: appointed by whom 20, 118 assistance in preparing record 26 authorized to administer certain oaths 24, 29, 121 challenge of member of court-martial by 28 correction of charges by 23 death or disability of 24, 63 duties of 23 new judge-advocate, record regarding 63 not challengeable 29 oath of _. 30 216 INDEX. Judge-advocate of court-martial Continued. Page. subpoenas by, how sent 35 subscribes daily record, etc 24 warrant of attachment issued by 36 withdraws when court is closed 25 witnesses summoned by 34 Judge-advocate of department: authorized to administer certain oaths 31, 121 custodian of records of inferior courts 77 Jurisdiction of courts-martial. See Courts-martial. Larceny : by soldier from civilian 18 forms for charges of 139, 143 offense of, in time of war 113 offense under 62d Article, limits of punishment 55 specifications for, to state value of property 55 Law of hostile occupation: definition of 5 Laws of the land: municipal ordinances, part of 113 Leaving post: form for charge 137 offense of 109 Lewd exposure : limit of punishment 57 Limitation, Statute of: advantage of, how taken 34 effect of, on jurisdiction 34 Limits of punishment. See Maximum limits of punishment. Liquor : introducing into camp, etc., limit of punishment 56 Log: punishment by carrying heavy, prohibited 50 Losing or spoiling: accouterments or clothing, through neglect, limit of punishment 53 accouterments or clothing, through neglect, offense of 105 horse or arms, through neglect, limit of punish- ment 53 horse or arms, through neglect, offense of 105 Loss of rank : as a punishment 49 Lying out of quarters: offense of _. 108 INDEX. 217 Manslaughter: Page. offense of, in time of war 113 under 62d Article, limit of punishment 55 March : different corps, etc., on the 126 Marine Corps: deserter from 34 officers of, as members of courts 11 Marking : as a punishment, forbidden 49, 122 Martial law: as a domestic fact, definition of 5 as applied to the Army, definition of 5 Maximum limit of punishment: by whom prescribed 51 effect of previous convictions on 58, 59 for desertion 52 for offenses in general 53 of noncommissioned officer 59 of soldier convicted of several offenses 59 offenses not mentioned 60 Mayhem : offense of, in time of war 113 Medical officer: arrest of 7 report of, in case of deserter 20 report of, form for 145 Members of courts-martial: absent, communicate cause to judge-advocate 22 absent during evidence, not to sit 29 assembling of 21 behavior of 22 court can not excuse from sitting 29 duty of judge-advocate to ascertain cause of ab- sence of duty 148 liable for other duty 22 named in order of rank 22 new member 63 oath of 24, 30 questions by, how recorded 152 quorum for general court 12 seating of 22 uniform of 21 votes of, how given 22 who are eligible as 11 who believe themselves disqualified 29 218 INDEX. Member of guard: Page, drinking liquor with prisoner, limit of punishment 57 Military Academy: cadets not triable by inferior courts 15 superintendent may convene courts for cadets 13 Military commission: object of as military tribunal 6 reporter for 26, 187 Military convicts: disobedience of orders by 106, 135 sentence, examination of 73 jurisdiction over 15, 61, 79, 84, 130 punishment for escape , 1 57 who designated as 70 Military discipline: conduct to prejudice of, forms for charges 141 conduct to prejudice of, how charged 17 conduct to prejudice of, limits of punishment 55-57 crimes, disorders, and neglects to the prejudice of 115 Military government: definition of 5 Military jurisdiction : how subdivided 5 source of 6 Military law: definition of 5 sources of 5, 6 Military tribunals : classification of 6 Militia: not triable by officers of Regular Army 11 officers as members of courts 11 officers in United States service, rank of 126 Minimum : report if court is below 12 Minors : offense of enlisting, without consent of parents 102 See Habeas corpus. Misbehavior before enemy: offense of . 110 Misconduct in time of war: abandoning post, etc 110 casting away arms, etc 110 changing parole or watchword 110 INDEX. 219 Misconduct in time of "war Continued. Page. correspondence with enemy 110 cowardice 110, 122 disclosing parole or watchword, etc 110 false alarms 110 forcing safeguard 113 intelligence to enemy 110 misbehavior before enemy 110 pillage 110 quitting colors 110 relieving or harboring enemy 110 various crimes 113 Mitigation of sentence: of garrison or regimental court 66, 67 of general court 66, 67 of prisoner long confined before trial 69 of summary court 81 Motion to strike out: action of court in case of 20 Municipal ordinances: part of " laws of the land " 113 Murder : offense of, in time of war , 113 Muster, false: offense of making 103, 105 offense of signing, etc., roll containing 105 Mustering : persons not soldiers as soldiers 103 receiving money, etc., for 103 Mutiny : beginning, exciting, etc 106 compelling commander to surrender 110 failing to report and suppress 106 Navy : deserter from 34 Neglect of duty: by sentinel, limit of punishment 57 causing damage to public property 105 form for charge of 141 in failing to care for captured property 104 in failing to surrender criminals 113 to the prejudice of good order, etc 115 New member: if eridence in, not to sit 29 record regarding 63 220 INDEX. Noisy or disorderly conduct in quarters: Page. limit of punishment 56 Nolle prosequi: court can not order 20 judge-advocate can not enter 23 Noncommissioned officer : abuse of authority by, limit of punishment 56 arrest by, under 24th Article 106 arrest of 8 confinement of 8 disobedience of orders of, charged under 62d Article 135 disobedience of orders of, form for charge 141 disobedience of orders of, limit of punishment 56 encouraging gambling, limit of punishment 56 insubordination to, limit of punishment 56 jurisdiction over, by general court 15 jurisdiction over, by inferior court 16, 130 limit of punishment of 59 making false report, limit of punishment 56 punishments for 49 reduction of, by summary court 81 reduction of, post noncommissioned staff, etc 49 using threatening or insulting language to 56 using violence to, etc., when quelling quarrel 53 Oaths : court must be sworn at each trial 29 for purposes of military administration 31, 121 in investigation of frauds, etc 31, 132 of enlistment 102 of members, judge-advocate, etc., of courts-martial 29-31 of members, recorder, etc., of courts of inquiry 87, 125 procedure during administration of 30 profane, penalty for using 112 to deposition 40 Objection : to question, how recorded 152 Offense : act as both civil crime and military 14 against person or property of civilian 113 joint charges for 17 jurisdiction as regards 15 no person tried twice for same 122 not capital and to the prejudice, etc 113 penitentiary 51, 122 statute of limitation for _. 34, 122 INDEX. 221 Officer: Page- charged with crime to be arrested 6, 116 in arrest furnished copy of charges 7, 117 jurisdiction over retired 14 meaning of word in Articles of War 102 retirement of. See Retirement of officers. to keep good order in his command 112 Officer of day: duties respecting prisoners and charges 9 Orders : convening. See Convening orler. general, publishing proceedings 69 neglect to comply with standing 135 of contract surgeon, etc., disobedience of _ 135 of a noncommissioned officer, disobedience of 135, 142 of an officer, disobedience of 106 of an officer, disobedience of, form for charge 135 trials by summary court not published in 80 Organization: of courts-martial 20 Pardon : by the President 67 by the reviewing authority 66, 67, 81, 124 of penitentiary prisoners 67 Parole : penalty for changing 110 Pay: false certificate relating to, penalty for signing 105 forfeiture of, as a punishment 49 forfeiture of, only in favor of United States 50 of civilian witness, giving deposition 41 of civilian witness 43, 131 of civilian witness, tender of 35, 38, 43, 131 of interpreter 28 of officer, suspension of 122 of reporter 28 of reporter, form for 186 of soldier awaiting sentence 69 of soldier can not be assigned by sentence 50 of soldier, detention and retention not authorized 171 Pay Department : civilian witness paid by 38, 45, 131, 176, 179 forms of, for account of civilian witness 177-185 form for account of reporter 186 instructions regarding payment of witness 179, 183 interpreter and reporter paid by 28 222 INDEX. Penitentiary : Page. clemency for prisoner confined in 67 confinement in, limit of 51 confinement in, offenses punishable by 51, 122 erroneously designated in sentence 68 for military convicts, at Fort Leavenworth, Kans. 67 sentence of confinement in, mitigation of 67 sentence to confinement in, what to state 61 sentence to confinement in, when legal 61 unless sentence authorizes, confinement in, illegal 68 when department commanders may designate 68 Perjury: false swearing distinguished from 144 form for charge 144 limit of punishment 55 Persuading soldier to desert: limit of punishment . 55 offense of 111 Plea: accused stands mute 33, 121 of guilty, statement inconsistent with 33 of guilty, testimony after 33 special, of second enlistment 34 special, of statute of limitation 34 special, procedure in case of 33, 34 special, to the jurisdiction, etc 33 special, in abatement or in bar 33 Post: abandoning, etc 110 sentinel sleeping on or leaving 109 sentinel sleeping on or leaving, forms for charges 137 Post commander: charges laid before the 19 charges usually presented to, by old officer of day 9 determines when and what cases go to summary court 79, 82 forwards charges for serious offenses 19 forwards completed proceedings of certain courts 76 furnishes company commanders copies of summary court record 83 furnishes detail to execute warrant of attachment 36 may use discretion regarding trial for minor offenses 82 must act as summary court in certain cases 78 must personally investigate charges forwarded 19 refers charges for minor offenses to summary court 19 reports number of cases tried by summary court 76 INDEX. 223 Post noncommissioned staff: Page. may be discharged but not reduced 49 unless they object, may be tried by inferior courts 16, 130 See also Noncommissioned officer. Postponement : application for, when made 31 extended delay wanted 32 on account of absent witness 32 Post return: officers who act as summary court, reported on __ 83 Precedence : military ordinarily gives, to civil court 14 President of a court-martial: duties of the officer highest in rank on court 23 President of the United States : as confirming authority 66, 76 as convening authority 12, 13 as reviewing authority 66 limits of punishment prescribed by 51 may order courts of inquiry 125 must appoint court in certain cases 13 pardoning power of 67 proceedings of courts appointed by, forwarded to Secretary of War 76 proceedings of courts to be confirmed by, forwarded to Judge-Aclvocate-General 66, 76 using contemptuous words regarding 106 Previous convictions: by civil court, inadmissible 48 by courts-martial, evidence of 47, 57 consideration of 19 consideration of, by summary court 80 effect on punishment 48, 58 evidence of, how recorded 156, 159 evidence of, submitted with charges 19, 58, 80 evidence of, when admissible 57 evidence of, when received by court 48 meaning of 47 not limited to those for similar offenses 48 proper evidence of -- 48, 58 Prisoners : abatement allowed 72 confinement of, after trial 70 confinement of, before trial 8 counsel for _. 25 INDEX. Prisoners Continued. Page. duty of officer receiving '. 9 escaped, effects of 71 forwarded to place of confinement 71 not to be arraigned in irons 21 penitentiary, clemency for 67 placed in irons, report regarding 70 releasing without authority, offense of 117 report of, when and by whom made 9 suffering to escape, form for charge 141 suffering to escape, limit of punishment for 56 when to be separated 8, 9 without charges against, when released i> Procedure of courts-martial. See Courts-martial. Proceedings of courts-martial: action on, by reviewing authority 65 application for copy of 27, 76, 145 appointed by the President 76 authentication of 24, 63 communications relating to 76 general, revised by Judge-Advocate-General 75 general, where filed and kept 75 inferior, where filed and kept 77 orders, general, publishing 69 orders, publishing, how dated 69 requiring confirmation by the President 66, 75 See also Record of proceedings. Proceedings of courts of inquiry: authentication of 126 record of, as evidence 126 Profanity : penalty for using 112 Prosecutor : can not convene general court 13 Provisions : violence to persons bringing, to camp 112 Public stores: taken from enemy, secured for United States 104 Punishment: ball and chain 49 branding prohibited 49, 122 by carrying heavy log forbidden 50 discretionary or fixed 49 effect of previous convictions on 58, 59 flogging forbidden - 49, 122 for contempt of court 122 INDEX. 225 Punishment Continued. Page. forfeiture, in favor of United States only 50 for officers 49 for soldiers 49 guard duty, as, forbidden 50 imprisonment beyond term of enlistment 14, 130 limits of. See Maximum limits of. of post noncommissioned staff and hospital ser- geants (1st class) 49 proper amount of 49 penitentiary 51, 122 power of reviewing authority respecting CI solitary confinement 50. 60 substitutions for prescribed 60 tattooing forbidden 49, 122 Quarrels : authority to quell 106 refusing to obey noncom. officer quelling, limit _. 53 Quarters : lying out of, without leave : 108 Quitting guard: form for charge 187 limit of punishment 55 offense of 110 Quorum : for general court 12 Rank: loss of, as punishment 49 of members of courts : 22 of militia officers on duty with regulars 126 of regular and volunteer officers 126 suspension from 49 Rape: offense of, in time of war IIP. Recommendation to clemency: not to be embraced in sentence 65 who should sign 65 Recess : form for recording 155 Record of proceedings : accurate, to be kept 63 accused entitled to copy of 125 application for copy of 76 authentication of 24, 63, 126 copy, if furnished during trial 27 copy, carbon, disposition of 27 65000 14 15 226 INDEX! Record of proceedings Continued. Page. copyable ribbon to be used 63, 147 daily, subscribed by judge-advocate 24, 63 disposition of 75 documents made part of 155 forms for. See Forms. forwarded to reviewing authority 24 hours of session noted in 148, 157, 158 loan for use 45 must contain a complete history of case 64 of closed session 64 of summary courts, copies furnished 83 presence of members, how recorded 148 previous convictions, evidence of, recorded 156, 159 reading of record of preceding day 63 recommendation, where recorded 65 revision of 65 statement of accused, when written, signed, etc 155 statement of service not part of record 64 See also Proceedings of courts-martial. Recruits : articles of war to be read to 102 Redress of wrongs: of citizens 112 of officers 108 of soldiers 108 Reduction to ranks: as a punishment 49 by summary court 81 form for sentence for 170 in case of previous convictions 59 of first-class privates 59 of noncommissioned officers 59 prohibited as to post noncommissioned staff and hospital sergeants (1st class) 49 Regimental courts-martial. See Courts-martial. Regulations : part of written military law 6 Relieving the enemy: offense of 110 Remission : of forfeiture 69 of sentence 67, 81, 124 Reporter : how authorized 26, 87, 89, 187 mileage 185 INDEX. 227 Reporter Continued. Page, no compensation for, if in Government service 28 oath of pay of -- 27, 00 pay of, form for account 186 sworn in each case 30 Report, false : by noncommissioned officer, limit of punishment __ 56 Report of summary court cases : form for 161 forwarded monthly 77, 130 where filed - 77, 130 Report of surgeon on deserter: form for 145 Reprimand : as a punishment 49 Reproachful language : penalty for using 107 Retainers to camp: jurisdiction over 15 Retired officers : ineligible as members of courts 11 jurisdiction over 14 Retired soldiers: jurisdiction over 34 Retirement of officers: on finding of retiring board. See Retiring boards. On promotion examination (act of October 1, 1890) disability in line of duty, with higher rank 97-101 finding by board 97 finding of board, action on 100, 101 line of duty, meaning of 97, 98 record, authentication of 100 Retiring boards: challenge for cause 91, 92 constitution and composition 89 counsel before 90 finding 94 finding, action on 95 finding, cause of disability 92, 93 finding, conclusive 95, 96 form for order and record 166 hearing, right of officer to 90 oath of members 91 oath of recorder _. 91 228 INDEX. Retiring boards Continued. Page. powers of 01 procedure of 91, f>2 proceedings, record of 160 recorder of 81) stenographic reporter for 89, 187 See Retirement. Retreat: failing to retire at, offense of 109 Returns : false, penalty for making 10:> of regiments, etc., made monthly 10-'! penalty for not making 103 Reviewing authority: action of the President as GO approval of sentence 65 can not change finding 47 can not change sentence 68 can not delegate authority 60 can not increase punishment awarded 68 can not postpone sentence of dishonorable discharge 69 may change place of confinement 68 may direct revision of record 65 mitigation by 67, 81, 124 mitigation by, for long confinement before trial 69 of garrison court 84 of general court 65 of regimental court 85 of summary court 81 orders of, publishing proceedings 69 orders of, remitting forfeiture 69 pardoning power of 67 suspension of sentence by 67 Revised Statutes: certain, part of written military law 6 section 1343, as to spies 127 sections 5306 and 5313, as to trading with enemy 127, 128 Revision of record: by whom directed 65 can only be made by court 65 form for 158 Reward for apprehension: when stopped against soldier's pay 50 Robbery : offense of, time of war 113 to the prejudice of, etc., limit of punishment ,_ 55 INDEX. 229 Safeguard : Page, penalty for forcing 113 Sale of victuals, etc.: duty, etc., upon or interest in 105 Seating of court : arrangement of seats 21 members sit in order of rank 22 Secretary of AVar: application for clemency forwarded to G7 applied to when expert witnesses are necessary 4.3 approval of, for confinement in State penitentiary G8 certain proceedings forwarded direct to 24 Sedition: beginning, exciting, etc 100 failure to report or suppress _. 106 Selling clothing, etc. See Clothiny, etc. Sentence : abatement of, for good conduct 72 approval by reviewing authority _ 65, 66 confirmation by the President 66 contemplating payment of stated sum _- 62 date of commencement of 69, 72 dishonorable discharge, effect on unserved confine- ment :__ 73 forfeiture for certain number of months 62 forms for 170 imposing tours of guard duty, forbidden _. 50 in excess of legal limit 6!) meaning of word days in 72 mitigation for confinement before trial 69 not operative before confirmation 69 of an officer for cowardice or fraud of death, confirmation of of death, suspension of 67, of death, vote upon 61, of dismissal in time of peace of dismissal in time of war 24 of dismissal, suspension of 67 pardon or mitigation of _. ._ 66, SI, 124 penitentiary erroneously designated in _. 68 procedure when awarding 61 punishment discretionary, limit ascertained 60 recommendations not embraced in 65 respecting general officers 124 reviewing authority can not change ; 68 second, begins when 73 230 INDEX. Sentence Continued. Page. to confinement at post 61, 62 to confinement, begins when 69, 71 to confinement in penitentiary for over one year 68 Sentinel: allowing prisoners to obtain liquor, limit of pun- ishment 57 disclosing or changing watchword 110 disrespect to, limit of punishment : 57 drinking with prisoner, limit of punishment 57 leaving post before being relieved 100 quitting post to pillage 110 resisting or disobeying, limit of punishment 57 sleeping on post, form of charge 137 sleeping on post, offense of 100 suffering prisoner to escape, form of charge 141 suffering prisoner to escape, limits of punishment 56 Soldier: charged with crimes to be confined 116 effects of deceased, disposition of 127 jurisdiction over retired 14 meaning of word in Articles of War 102 Solitary confinement: limit of 50, 60 Special orders. See General and special orders. Specification: instructions for drawing 18 Spy: confirmation of sentence of 123 jurisdiction over 15 statute relating to 127 Standing mute. See Plea. Standing order: neglect to comply with 135 Statement : accused may submit 46 inconsistent with plea 33 record of 155 Statement of service: form for 145 not part of record 64 to accompany charges 19 Statute of limitation. See Limitation, Statute of. INDEX. 231 Stores : Page. accountability for military 104 military, lost, spoiled, etc 105 public, taken from the enemy 104 Striking superior officer: form for charge 135 offense of 106 Subpoena (or Summons) : by civil court 42 forms for 171-173 officer or soldier receiving 42 proof of service 35 sent through military channels 35 sent with interrogatories 40 service of 35, 36 Substitution of punishment: rule for 60 Suffering prisoners to escape: forms for charges 141 limits of punishment 56 Summary court. See Courts-martial. Sunday : trials on, by summary court 82 Superintendent, U. S. Military Academy: convenes courts for trial of cadets 13 Surgeon : contract, ineligible as member of court 11 report of, to accompany charges 20 report of, to accompany charges, form for 145 Surrender : compelling commander to 110 Suspension : as a punishment 49 from rank and command 49 of pay and emoluments 122 of sentence of death or dismissal 67, 123, 124 Tattooing: as a punishment, forbidden 49, 122 Territoriality : as affecting jurisdiction 14 Testimony : corrections in 63, 152 reading of 63. 152 232 INDEX. Threatening and insultir.tr language : Page. limit of punishment for using, to noncom. officer 56 Trading with the enemy: statutes relating to 127, 128 Trial : delay in, by summary court 79 for officers summarily dismissed 15 hours of. See Hours of session. on Sunday, by summary court * 82 postponement of 31, 121 second, for same offense 122 Typewriter : copyable ribbon to be used in court-martial records 63, 147 Uniform : of accused 21 of judge-advocate 21 of members 21 of military witnesses 21 Veterinarians. See Contract surgeon, etc. Victuals, etc.: duty upon or interest in 105 Voire dire: examination on 29, 149 Volunteers : officers of, as members of court 11 regular officers can not try 11, 118 Vote: method of taking 22, 61 tie 22 upon death sentence 61, 122 Warrant of attachment: by whom issued 36 force necessary to execute 36 form for 174 officer executing, served with writ of habeas corpus 36 procedure in issuing ._ 36, 37 summary court can not issue 79 Watchword : penalty for disclosing or changing 110 Witness : accused as 45 attachment of. See Warrant of attachment. attendance of, civilian, how procured 36 attendance of, in capital or special cases 41 INDEX. 233 Witness Continued. Page. attendance of military, how procured 38, 40, 42 attendance of, without State, etc 39, 41 civilian, refusing to appear or testify, punishable 37, 43, 131 departure of 42 deposition of. See Deposition. examination of, manner of . 46 examination of, rules to be followed 45 examination of, witnesses separated 45 experts, employment and pay of 43 fees of, before civil court 43-44 fees, etc., of, payable by Pay Department 45 fees of, certificate of attendance 44 fees of civilian, in Government employ 43 fees of civilian, not in Government employ 44 fees of civilian, payment or tender of 35, 43, 131 fees of, forms for accounts 177-182 fees of, instructions regarding 179-185 oath of 24, 30 privilege of 39, 45, 131 uniform of 21 Wounding: with intent to kill, etc., in time of war 113 Wrongs: See Redress of icrongs. MANUAL FOR COUNTS-MARTIAL. CHANGES i WAR DEPARTMENT, No. 1. / WASHINGTON, January 27, 1912. 1. Paragraphs 2 and 3, pages 61 and 62; paragraphs 9 and 10, page 68; paragraphs 1 and 2, page 70; paragraph 7, page 72, and paragraph 11, page 73, Manual for Courts- Martial (corrected to August, 1910), are amended to read as follows, to take effect February 15, 1912: 2. Courts-martial in awarding sentences upon general prisoners are restricted to imposing additional confinement to be served upon the completion or termination of their existing sentences, and will not interfere with the manner of executing such sentences by prescribing loss of good conduct time, solitary confinement, or confinement on bread-and-water diet, leaving all such punishments to be imposed by the commanding officer as the ordinary means of enforcing discipline. 3 (C.M.C. M., No. 1, Jan. 27, 1912.} 3. When the sentence of a general court-martial pre- scribes confinement, so much of the sentence as relates thereto will be expressed in substantially the following form: ' : To be confined at hard labor, at such place as the reviewing authority may direct, for , " leaving to the reviewing authority the designation of the place of confine- ment. (Par. 981, A. R.) (C. M. C. M., No. 1, Jan. 7, 1912.} 9. The authority which has designated the place of con- finement, or higher authority, may change the place of confinement of any prisoner under the jurisdiction of such authority (par. 987, A. R.); but when a military prison or post has been designated as the place of confinement of a prisoner under sentence, no power is competent to increase the punishment by designating a penitentiary as the place of confinement. (Par. 983, A. R.) (C. M. C. M., No. 1, Jan. 27, 1912.} (235) 236 CHANGES. 10. A penitentiary may, and ordinarily will, be desig- nated as the place of confinement of a general prisoner sentenced to be confined for more than one year upon conviction of an offense punishable by confinement in a penitentiary under some statute of the United States or of the State, Territory, or District in which the offense was committed or under the common law as the same is in force in such State, Territory, or District. The United States Military Prison at Fort Leavenworth, Kans., or a military post will be designated as the place of confinement of a general prisoner convicted of mili- tary offenses alone. The Pacific Branch of the United States Military Prison at Alcatraz, Cal., or a military post, will be designated as the place of confinement of a general prisoner whose case does not come within the terms of either of the preceding provisions of this paragraph. Detailed instructions to supplement the general provisions of this paragraph will be issued from time to time by the Secretary of War. (Par. 982, A. R.) (C. M. C. M., No. 1, Jan. 27, 1912.) 1. Enlisted men * * * who have been tried will, prior 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 as "garrison prisoners." Persons sentenced to dismissal or dishonorable discharge and to terms of confinement at military posts or elsewhere will be designated as "general prisoners." (Par. 943, A. R.) (C. M. C. M., No. 1, Jan. 7, 1912.} 2. Prisoners awaiting trial by, or undergoing sentence of, general court-martial and those confined for serious offenses will be kept apart, when practicable, from those confined by sentence of an inferior court, or for minor offenses. Enlisted men awaiting trial or awaiting result of trial will not be sent to work with garrison prisoners or general prisoners if it can be avoided, and, in the dis- cretion of the commanding officer, may be required to attend drills, or may be sent to work under charge of a CHANGES. 237 sentinel, during the usual working hours. General prisoners will not be confined with other prisoners ex- cept in cases of necessity. (Par. 947, A. R.) (C. M. C. M., No. 1, Jan. 27, 1912.) 7. General prisoners, other than those confined in penitentiaries, will be allowed in abatement of their terms of confinement when serving sentences of over three months and not over twelve months five days for each complete period of twenty-five days during the whole of which their conduct has been good; but the abatement of five days so authorized shall not have the effect in any case of reducing the confinement below three months. On sentences exceeding one year they will be allowed the foregoing abatement for the first year of the sentence including abatement, and thereafter ten days for each complete period of twenty days during the whole of which their conduct has been good. Abate- ments thus authorized may be forfeited, wholly or in part, by subsequent misconduct, such forfeiture to be determined by the commanding officer of the post where the prisoner is confined. A general prisoner serving sentence in a penitentiary will be allowed the abatement authorized for convicts in that penitentiary. Garrison prisoners will be allowed in abatement of their terms of confinement when serving sentences of one month five days for good conduct. On sentences exceeding one month they will be allowed the foregoing abatement for the first month of the sentence, and there- after ten days for each complete period of twenty days during the whole of which their conduct has been good. Abatements thus authorized may be forfeited, wholly or in part, by subsequent misconduct, such forfeiture to be determined by the commanding officer of the post where the prisoner is confined. * * * (Par. 957, A. R.) (C. M. C. M., No. 1, Jan. 27, 1912.) 11. No general prisoner will be released from confine- ment except on an order communicated by the command- ing officer, who, before giving such order, will verify the 238 CHANGES. date of expiration of the prisoner's sentence by examining all orders fixing or modifying his term of confinement. (Par. 956, A. R.) (C. M. C. M., No. 1, Jan. 27, 1912.) [1859416 E A. G. O.] II. Forms 2, 4, and 6, page 171, Manual for Courts- Martial (corrected to August, 1910), when employed by general courts-martial (par. 981, A. R.), are modified to read as follows, to take effect February 15, 1912: Form 2. Confinement: * * * " to be confined at hard labor, 1 at such place as the reviewing authority may direct, for ( ) days. " (C. M. C. M., No. 1, Jan. 27, 1912.) Form 4. Confinement and forfeiture: * * * "to be confined at hard labor, at such place as the reviewing authority may direct, for ( ) months, and to forfeit ( ) dollars per month for the same period. " (C. M. C. M., No. 1, Jan. 27, 1912.) Form 6. Dishonorable discharge, forfeiture of pay and allowances, and confinement: * * * "to be dishonor- ably discharged the service of the United States, forfeiting all pay and allowances due him, and to be confined at hard labor, at such place as the reviewing authority may direct, for ( ) years." (C. M. C. M., No. 1, Jan. 27, 1912.) [1859416 E A. G. O.] BY ORDER OF THE SECRETARY OF WAR: LEONARD WOOD, Major General, Chief of Staff. OFFICIAL: HENRY P. McCAIN, Adjutant General. MANUAL FOR COURTS-MARTIAL. CHANGES 1 WAR DEPARTMENT, No. 2. J WASHINGTON, April 21, 1913. I. Paragraph 5, page 7 ; paragraph 4, page 11 ; para- graphs 5. 6, 1, and 2, page 12; paragraphs 3 and 4, page 13; paragraph 4, page 14; Section II, page 15; paragraph 2 ? top of page 16 ; paragraph 3, Section III (added) ; paragraph 1, Section IV, paragraph 2, Sec- tion IV, paragraph 3, Section IV, page 19 ; paragraph 1 (Organization), page 20; paragraph 3, page 22; para- graph 2, page 25 ; paragraphs 3 and 2. page 2(3 ; para- graph 4, page 28; paragraphs 3, 4, and 6 (added), page 29 ; oaths, pages 29 and 30 ; paragraph 1, Section II, page 35; subparagraphs 3 and 4 of paragraph 2, and paragraph 3, page 40 ; paragraph 1, page 47 ; sec- tion 1, page 57; section 2, section 3, and section 4, page 58; paragraph 1. page 63; paragraphs 4 and 7, page 64 ; paragraph 6, page 66 ; paragraph 16, page 69 ; paragraphs 4 and 5, page 71; paragraph 2, page 74; paragraph 1, page 75; paragraphs 4 and 5, page 76; paragraph 6, page 77 ; pages 78 to 85, inclusive ; Seventy-second Article of War, page 117; Seventy- third and Seventy-fifth Articles of War, page 118; Eighty-first, Eighty-second, and Eighty-third Articles of War, page 119; pages 129, 132, 161, 162 to 165, in- clusive, 175, and 176 are changed as follows, to take effect July 1. 1913: (Page 7.) 5. Officers will not be placed in arrest for light of- fenses. For these the censure of the commanding officer will generally answer the purpose of discipline. Whenever a commanding officer places an officer in 239 240 CHANGES. arrest without preferring charges, he will make a written report of his action to the brigade or Coast Artillery district commander, stating the cause. The brigade or Coast Artillery district 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 within his authority as he may think necessary, forwarding the papers, with his recommendation, to the department commander, who will, in case a trial is not deemed advisable, forward the papers to The Adjutant General of the Army for file with the officer's record, or for further action. In the case of officers belonging to organizations not at- tached or belonging to a brigade or Coast Artillery district, the report will be sent directly to the depart- ment commander. (Par. 939, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 11.) 4. In the United States military service, the follow- ing-named courts-martial are authorized : 1st, the "General Court-Martial"; 2d, the "Special Court- Martial"; 3d, the "Summary Court-Martial." (C. H. C. M., No. 2, Apr. 2J, 1913.) (Page 12.) 5. The General Court-Martial, being the most im- portant, will be first considered. But. as all courts- martial have much in common in regard to their juris- diction, procedure, punishment, etc., the text may, as a rule, be regarded as apposite to all, unless the gen- eral court is specially mentioned. Exceptions in re- gard to jurisdiction, etc., will be made as each of the other courts is considered. (C. M. C. M., No. 2, Apr. 21, 1913.) 6. A General Court-Martial may consist of any number of officers from five to thirteen, inclusive, 1 and a judge advocate. Authorities competent to ap- point a general court-martial will endeavor to obtain the maximum number of members for the trials of CHANGES. 241 officers and for important trials of enlisted men. When, in the course of a trial, the court is reduced in number by reason of absence, challenge, or the reliev- - ing of members, it may proceed with business so long t as five members remain. When from any cause a 1 general court is reduced below the minimum, five, it ' can transact no other business than to direct the judge advocate to report the fact to the convening authority and to adjourn to await further orders. In such a case, if the trial has not been entered upon, new mem- bers may be added ; but if any testimony has been taken, the court should preferably be dissolved and a new one ordered. 2 (C. M. C. .I/., No. 2, Apr. 21, 1913.) 1. The President is empowered to institute general courts-martial 1st, as Commander in Chief of the Army, under the Constitution ; 2d, as provided in the next paragraph; 3d, in the particular cases provided for by section 1230, Revised Statutes. (C. M. C. J/., No. 2, Apr. 2L 1913.) 2. The President of the United States, the com- manding officer of a territorial division or department, the Superintendent of the Military Academy, the com- manding officer of an army, a field army, an army corps, a division, or a separate brigade, and when empowered by the President, the commanding officer of any district or of any force or body of troops, may appoint general courts-martial whenever necessary; but when any such commander is the accuser or the prosecutor of the person or persons to be tried the court shall be appointed by superior competent au- thority, and no officer shall be eligible to sit as a member of such court when he is the accuser, or a witness for the prosecution, nor shall any officer be brought to trial before a general court-martial ap- pointed by the Superintendent of the Military Acad- emy. (See notes 1 and 2. p. 13.) (C. M. C. J/., No. 2, Apr. 21, 1913.) 65000 14 If. 242 CHANGES. (Page 13.) 3. Omit. 4. The officer who appoints a court-martial gen- eral or special may dissolve it, and control its exis- tence, but not the subject matter of its deliberations. 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. 4 (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 14.) 4. As a rule, military jurisdiction ends when a soldier is discharged. The present exceptions to this rule are, discharged officers and soldiers guilty of fraud against the United States under the Sixtieth Article of War ; discharged officers granted trial after summary dismissal, under section 1230, Revised Stat- utes; and general prisoners. 6 (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 15.) SEC. II. General courts-martial shall exercise a-v regards persons and with reference to other courts- martial, exclusive jurisdiction over officers, 7 cadets, 8 and " candidates for promotion." 9 Over enlisted men, other than candidates for promotion, and general pris- oners, they shall exercise concurrent jurisdiction with the special and summary 10 courts in cases cognizable by said courts. 11 (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 16.) 2. As regards offenses, 1 general courts-martial have exclusive jurisdiction over all offenses punishable capitally, and over those set forth in the Fifty-eighth Article, when committed in time of war. Over other offenses they have concurrent jurisdiction with the special and summary courts; but all offenses for which the limit of punishment is in excess of the CHANGES. 243 limits of the punishing power of special courts, as well as all serious noncapital offenses for which limits of punishment have not been prescribed will, 'Ordinarily, be tried by general courts-martial. (C. M. | C. M., No. 2, Apr. 21, 1913.) (Page 19.) 3. (Added.) When charges are preferred against an enlisted man for trial other than by summary court, the charges, accompanied by the statement of service properly filled out, the proper evidence of previous convictions, if any, and a brief statement of the evi- dence expected from each witness, together with a statement of any other available evidence in the case, will be submitted to the officer exercising special court-martial jurisdiction over the command to which the accused belongs. If this officer deems trial by general court-martial expedient, the charges, accom- panied by the prescribed papers, will be forwarded to the authority competent to appoint a general court- martial for the trial. If the officer to whom the charges are submitted decides that trial should be had by special or summary court-martial, he will take action accordingly. (Par. 969, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) SEC. IV. Before forwarding charges they will be carefully investigated by the commanding officer, or an officer designated by him, other than the officer preferring the charges, and in forwarding the charges the name of the officer making the investigation will be noted in the commanding officer's indorsement. The commanding officer will state in his indorsement whether or not, in his opinion, the charges can be sustained. (Par. 970. A. R., 1910.) (C. M. G. M., No. 2, Apr. 21, 1913.) 2. Charges against an enlisted man forwarded to the authority ordering a general court-martial, or re- ferred to a special or summary court, must be accom- panied by the proper evidence of previous convictions. 244 CHANGES. General and special courts-martial will consider only such evidence of previous convictions as is referred to them by the convening authority. (Pars. 969, 978, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) 3. Charges against an enlisted man other than for trial by summary court will also be accompanied by a statement of service in accordance with the form given on page 145, post. In case of a deserter the surgeon's report required by paragraph 126, Army Regulations, 1910, will also be forwarded with the charges. (See notes 1 and 2. p. 20.) (C. M. C. M., No. 2, Apr. 21, 1913. ) ( Page 20. O rganization. ) 1. The authority appointing a general or special court-martial designates the place for holding the court, the hour of meeting, the members of the court, and a judge advocate. (Pars. 959, 960, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 22.) 3. When a member is prevented from attending a session of the court he will communicate the cause to the judge advocate, and the same will be entered in the record of proceedings of a general court-martial, but need not be recorded in the record of a special court-martial. If the member 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 niay de- sire to make. (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 25.) 2. The commanding officer of a post where a gen- eral or special court-martial is convened will, at the request of any person who is to be arraigned, detail a suitable officer as counsel for the defense. If there be no such officer available for detail, the fact will be reported to the authority appointing the court for his action. (Par. 977, A. R., 1910. See note 1. p. 26.) (C. M. C. M., No. 2, Apr. 21, 1913.) CHANGES. 245 (Page 26.) 3. An officer detailed as counsel for a soldier before a general or a special court-martial should guard the interests of the accused by all honorable and legiti- mate means known to the law, so far as they are not inconsistent with military relations. He should not obstruct the proceedings with frivolous and mani- festly useless objections. (Par. 977, A. R., 1910.) (C. M. C. J/., No. 2, Apr. 21, 1913.} 2. A judge advocate of a general or special court- martial or military commission, and a recorder of a court of inquiry, may employ, when authorized by the convening authority, a stenographic reporter, not an enlisted man, who shall be paid at the following rates of compensation by the Quartermaster Corps on vouchers certified to be correct by the judge advocate or recorder, who will forward a copy of the same with the record : For each case not to exceed $1 an hour for time actually spent in court during the trial or hearing ex- cept when the court or commission sits less than three hours during the first day, when the allowance for such day shall be $3. Time will be reckoned to the nearest half of an hour. Fifteen cents for each 100 words for transcribing notes and making that portion of the original record which is typewritten ; but no allowance shall be made for the first carbon copy of that portion of the record which is typewritten or for original papers which are appended as exhibits. Ten cents for each 100 words for copying papers material to the inquiry, and 2 cents for each 100 words for each carbon copy of the same, when ordered by the court or commission for its use. Two cents for each 100 words for the second and each additional carbon copy of the record when au- thorized by the convening authority. Except for such part of the journey as may be cov- ered by Government transportation, mileage at the 246 CHANGES. rate authorized for a civilian witness not in Govern- ment employ, and $3 a day for expenses when the judge advocate or recorder keeps him, at his own ex- pense, away from his usual place of employment for 24 hours or more, on public business referred to the court or commission, shall be allowed the reporter for himself, and, when ordered by the court or commis- sion, for each necessary assistant. The judge advocate or recorder shall require the reporter to furnish the typewritten record of the pro- ceedings of each session of the court or commission with one carbon copy of the same not later than 24 hours after the adjournment of that session. The complete record will be finished, indexed, bound, and ready for authentication not later than 48 hours after the completion of its action by the court or commis- sion on the merits of the case or hearing. An enlisted man may be detailed to serve as steno- graphic reporter, and while so serving shall receive extra pay at the rate of not to exceed 5 cents for each 100 words taken in shorthand and transcribed. (Par. 1003, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 28.) 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, ex- cept as provided in paragraph 2, last preceding. (Par. 1004, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 29.) 3. Courts should be liberal in passing upon chal- lenges, but they will not entertain an objection that is not specific, nor one* upon the mere assertion of the accused, if it is not admitted by the challenged mem- ber. A challenge upon the ground, admitted or proven, that a member has investigated the charges and ex- pressed an opinion that they can be established, should be sustained by the court. In the absence of a chal- lenge, however, the court of itself can not, except as CHANGES. 247 required in the succeeding paragraph, excuse a mem- ber from sitting on the trial of a case. A member not challenged, but who thinks himself disqualified for rea- sons other than those indicated in the succeeding para- graph, can be relieved only by application to the con- vening authority. (C. H. C. M., No. 2, Apr. 21, 1913.) 4. No officer shall be eligible to sit as a member of a general or special court-martial when he is the accuser or a witness for the prosecution. 2 After the accused is brought before the court, but before the court is sworn, any member thereof who is or believes himself to be the accuser in the case will formally announce that fact to the court, whereupon he will be excused. When the accused, his counsel, the judge advocate, or any member of the court, at any time before the find- ing, shall have reason to believe that any member thereof may be the accuser in the case, such belief shall be communicated to the court, and, if the court, after hearing the facts, find that such member is the accuser, he shall be excused. When the judge advo- cate, the accused, his counsel, or any member of the court has reason to believe that any member thereof may be called as a witness for the prosecution, such belief shall be communicated to the court, and, if the judge advocate state that the member is to be so called, he will be excused. If at any subsequent stage of the proceeding prior to the findings any member of the court be called as a witness for the prosecution, he shall, before qualifying as a witness, be excused from further duty as a member. (C. M. C. M., A 7 o. 2, Apr. 21, 1913.) 6. (Added.) No member who has been absent during the taking of evidence shall thereafter take part in the trial ; but this provision shall not be construed as invalidating the proceedings of courts-martial if no objection is made, and the court permits the member to sit, but is to be regarded as a requirement which should always be complied with when practicable. 248 CHANGES. Especially should a member who has been absent dur- ing an important part of the proceedings not be per- mitted to resume his seat. (C. M. G. M., No. 2, Apr. 21, 1913.} Oaths. For last two lines, page 29, and first two lines, page 30, substitute the following : The judge ad- vocate shall administer to each member of a general court-martial before the court proceeds upon any trial, the following oath, which shall also be taken by all members of a special court-martial : (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 35.) SEC. II. 1. In case a civilian witness duly subpoanaed before a general court-martial refuses to appear or qualify as a witness, or to testify or produce docu- mentary evidence, as required by law, he will at once be tendered or paid by the nearest quartermaster one day's fees and mileage for the journeys to and from the court, and will thereupon be again called upon to comply with the requirements of the law. The fees and mileage of civilian witnesses residing beyond the limits of the State, Territory, or District in which the court-martial is held will not be paid in advance, as such witnesses can not be punished if they refuse to obey the summons. (Par. 1008, A. R., 1910. See act of Mar. 2, 1901.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 40.) 2. For third and fourth subparagraphs substitute: Depositions may also be taken before the assem- bling of the court, on interrogatories and cross-inter- rogatories or on reasonable notice, subject in each case to exceptions when read in court. In the case of a military or civilian witness not stationed or residing at or near a post, command, or detachment, the judge advocate will send the inter- rogatories direct to the commanding general of the de- partment within the territorial limits of which the witness resides. In the case of a military or civilian CHANGES. 249 witness stationed or residing at or near a military post, command, or detachment, the judge advocate will send the interrogatories direct to the commanding officer of the post, command, or detachment, at or near which the witness may be stationed or residing. In each instance the interrogatories will be accom- panied by a request that the deposition of the witness may be taken. Upon receipt of the request the officer receiving it will take the deposition or cause it to be taken. The deposition will be taken without delay, and when taken will be sent at once direct to the president of the court-martial trying the case. If in any instance where interrogatories are received by the commanding officer of a post, command, or de- tachment, travel is necessary to enable the deposition to be taken, a request will promptly be made on the proper authority for travel orders. If more than 24 hours will be required to communicate by letter with such authority, the request for travel orders will be by telegraph. (C. M. C. If., No. 2, Apr. 21, 1913.) 3. In the case of a civilian witness the interroga- tories will be accompanied by the proper subprenas and account for civilian witness and by a request that the proper data be supplied in the account for civilian witness and that the post-office address of the witness be given, so that the account may be certi- fied by the judge advocate and transmitted to the proper paymaster for payment. In the case of a military witness subpoanas will not accompany the interrogatories, but the officer before whom the depo- sition is to be taken or the officer who causes it to be taken will direct the witness to appear and depose at the proper time and place. (C. If. C. .17., No. 2. Apr. 21, 1913.) (Page 41'.) 1. Whenever a soldier is convicted of an offense for which a discretionary punishment is authorized, the court will receive evidence of previous convictions, 250 CHANGES. if there be any; such evdence being limited, except as provided in section 5, page 59, post, to previous con- victions by courts-martial of an offense or offenses within one year preceding the date of any offense charged and during the current enlistment. General and special 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. These courts will consider only such evidence of previous convictions as is referred to them by the con- vening authority. (See notes 1 and 2, p. 48,) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 57.) SEC. 1. Such evidence shall be limited, except as provided in section 5 of this article, to previous con- victions by court-martial of an offense or offenses within one year preceding the date of commission of any offense charged and during the current enlist- ment. These convictions must be proved by the rec- ords of previous trials and convictions, or by duly authenticated copies of such records, or by duly au- thenticated copies of the orders promulgating such trials and convictions. Charges forwarded to the authority competent to order a general court-martial, or referred to a special or a summary court-martial, must be accompanied by the proper evidence of pre- vious convictions. (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 58). SEC. 2. Whenever a soldier is convicted of an of- fense for which a discretionary punishment is author- ized, the court will receive evidence of previous con- victions (see section 1 of this article), if there be any. General and special courts-martial will, after a find- ing of guilty, be opened for the purpose of ascertain- ing whether there is such evidence and, if so, of re- ceiving it. (C. M. C. M., No. 2, Apr. 21, 1913.) Omit the heading of section 3, " Previous convic- tions in connection with inferior court offenses." (C. M. C. M., No. 2, Apr. 21, 1913.) CHANGES. 251 Omit the heading of section 4, " Previous convic- tions in connection with general court-martial offenses." (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 63.) 1. Each general court-martial shall keep a complete and accurate record 3 of its proceedings, separate for each case. Each special court-martial and each sum- mary court-martial shall keep an accurate record of its proceedings, separate for each case, which record shall contain such matter as may be required or indi- cated in the forms prescribed for the records of such courts, respectively. The record of each case tried by a -general or special court-martial will be authenti- cated by the signatures of the president and the judge advocate. The judge advocate should affix his signa- ture to each day's proceedings. Whenever, by reason of the death or disability of the judge advocate occur- ring 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. The record of a general or a special court-martial must show 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. (Par. 995, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 6J t .) 4. The entire proceedings of a general court-martial will be spread upon the record ; all orders and rulings of the court; all motions, propositions, objections, ar- guments, 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 understanding of every point of the same by the reviewing authority will be re- 252 CHANGES. corded at length. In the record of a special court- martial statements and arguments made before the court will not be recorded nor will the testimony taken before such special courts-martial be reduced to writing unless directed by the authority referring the case to the court for trial. (Par. 976, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) 7. The " statement of service " referred to on page 19, paragraph 3, ante, will not be introduced in evi- dence nor made a part of the record of the trial, but will be considered by the court and shown to the ac- cused, with a view to its correction by the introduc- tion of evidence should it be required. The statement will be forwarded with the record. (See note 1, p. 65.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 66.) 6. The power to remit or mitigate punishment im- posed by a court-martial, vested in the authority who appointed the court or the corresponding authority under whose jurisdiction the sentence is being exe- cuted, extends only to unexecuted portions of a sen- tence. If the punishment be one imposed by a general court-martial, it may be remitted or mitigated only by an officer competent to order a general court-martial and under whose jurisdiction the sentence is being ex- ecuted. 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 pris- oner sentenced to confinement in a penitentiary, or in the United States Military Prison or any branch thereof, will be forwarded to The Adjutant General of the Army for the action of the Secretary of War and the President. A military prisoner sentenced to confinement in a penitentiary, or in the United States Military Prison or any branch thereof, will, so far as concerns the exercise of clemency, be considered to have passed beyond the jurisdiction of a department commander from the date of the approval of his sen- CHANGES. 253 fence, without regard to the fact of his being tempo- rarily retained within the command of the department commander pending transfer to a penitentiary, or the United States Military Prison or any branch thereof. The power to commute sentences imposed by military tribunals, not being vested in military commanders, can be exercised by the President only. (Par. 958, A. R.. 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.} (Page 69.) 16. Trials by general courts-martial, including so much of the proceedings as will give the charges and specifications, the pleas, findings, and sentence, and the action and remarks of the reviewing authority, will be announced in general orders issued from the War Department or in general court-martial orders from the headquarters of territorial departments. If the charges contain matter which for any reason is unfit for publication, such matter will be omitted from the order, but a copy thereof will be promptly fur- nished by the reviewing authority to the commanding officer of the post at which the officer or soldier is confined, to be included with the papers required by paragraph 953 to be sent to the commanding officer of the post or military prison where the sentence of con- finement is to be executed. (Par. 1000, A. R., 1910.) (C. J/. C. H., No. 2, Apr. 21, 1913.) (Page 71.) 4. Prisoners will be forwarded from places of trial to places at which they are sentenced to serve con- finement only on orders of department commanders or higher authority. The strength of guards to accom- pany them will be limited to the necessities of safe delivery. Orders detailing guards in charge of mili- tary prisoners 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 254 CHANGES. post or prison to which the prisoner is transferred, the following papers in his .case, viz : Descriptive list, orders promulgating and modifying sentences, state- ment of conduct while under sentence to date of transfer, and a list of clothing in possession of the prisoner when forwarded. 2 In the case of a general prisoner the commanding officer will send the dis- charge papers of the prisoner, together with all the other papers hereinbefore described, except the de- scriptive list; in lieu of that list the commanding officer will send a certified copy of the prisoner's rec- ord as recorded on the form furnished by The Adju- tant General's Department for keeping such records. (Par. 953, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) 5. All serviceable clothing and blankets which are the property of a prisoner 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 deliv- ery, with the prisoner, of all articles itemized therein. (Par. 954, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913. ) (Page 7 4.) 2. Should a writ of habeas corpus issued by a State court or judge be served upon an Army officer, com- manding him to produce an enlisted man or a gen- eral prisoner, and show cause for his detention, the officer will decline to produce in court the body of the person named in the writ, but will make respectful return x 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 magistrate or court of a State has no jurisdiction in such a case. (Par. 1015, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) CHANGES. 255 (Page 75.) 1. The Judge Advocate General revises and is the custodian of the records of all general courts-martial, courts of inquiry, and military commissions. The original proceedings of all general courts- martial, courts of inquiry, and military commissions, with the decisions and orders of the reviewing au- thorities made thereon, and the proceedings of all gen- eral courts-martial, courts of inquiry, and military commissions which require the confirmation of the President, but which have not been appointed by him, will be forwarded, after having been finally acted upon by the appointing authority, or his successor in command, directly 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 case will be forwarded to the Judge Advocate Gen- eral 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 and military commissions appointed by the President will be sent directly to the Secretary or War. (Pars. 930, 932, A. R., 1910.) (C. M. C. M., No. 2. Apr. 21, 1913.) (Page 76.) 4. Judge advocates of departments are the custo- dians of the reports of cases tried by summary courts and of all records of proceedings of special courts- martial. (Par. 998, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) 5. Post and other commanders will, on the last day of each month, make a report to the department head- quarters of the number of cases determined by sum- mary court during the month, setting forth the offenses committed and the penalties awarded. 6 (C. M. C.M., No. 2, Apr. 21, 1913.) 256 CHANGES. (Page 77.) 6. After having been finally acted upon by the officer appointing the court or by the officer commanding for the time being, the record of each trial by special court-martial, and monthly reports of cases tried by summary courts will be transmitted without delay to department headquarters, there to be filed in the office of the judge advocate of the department for a period of two years, at the end of which time such records and reports may be destroyed. 2 (Par. 998, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 78.) Omit pages 78 to 85, inclusive, and substitute there- for the following : SPECIAL COURTS- MARTIAL. (See act of Mar. 2, 1913.) 1. Special courts-martial may consist of any number of officers from three to five, inclusive, and a judge advocate. The remarks regarding the eligibility of officers for court-martial duty on page 11, paragraphs 1 to 3, ante, apply also to special courts-martial. When for any cause a special court-martial is reduced below the minimum, three, it can transact no other business than to direct the judge advocate to report that fact and the status of the trial to the convening authority and to adjourn to await further orders. In such a case if no evidence has been presented to the court new members may be added, but if evidence has been presented the court will be dissolved and a new one appointed. (C. M. C. M., No. 2, Apr. 21, 1913.} 2. The commanding officer of a district, garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a brigade, regiment, detached battalion, or other detached command, may appoint special courts-martial for his command; but such special courts-martial may in any case be ap- pointed by superior authority when by the latter CHANGES. 257 deemed desirable, and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution. (Act of Mar. 2. 1913.) (C. M. C. I/., No. 2. Apr. 21. 1913.} 3. Special courts-martial shall have power to try any person subject to military law, except an officer, for any crime or offense not capital made punishable by the Articles of War : Provided, That the President may by regulations, which he may modify from time to time, except from the .jurisdiction of special courts- martial any class or classes of persons subject to mili- tary law. (Aet of Mar. 2. 1913.) A special court-martial shall not try candidates for promotion. (Sec. II, p. 15, M. C. M.) (C. M. C. M.. No. 2, Apr. 21, 1913.) 4. Special courts-martial shall have power to ad- judge punishment not to exceed confinement at hard labor for six months or foreiture of six months' pay, or both, and in addition thereto reduction to the ranks in the cases of noncommissioned officers, and reduc- tion in classification in the cases of first-class privates. (Act of Mar. 2, 1913.) (C. M. C. .I/., No. 2. Apr. 21, 1913.) 5. The order convening a special court-martial, the charges submitted for trial thereby, the procedure be- fore the court, and the record will be similar to the order, the charges, the procedure, and the record, respectively, in the case of a general court-martial, except that as to the procedure and the record in trials by special court-martial, the statements and arguments made before the court will not be recorded, nor will the testimony taken before such special courts-martial be reduced to writing unless directed by the authority referring the case to the court for trial. (Par. 976, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) 6. Each special court-martial shall keep an accurate record of its proceedings separate for each case, which 65060 14 17 258 CHANGES. record shall contain such matter as may be required or indicated in the form prescribed for the record of a special court-martial. The record of each case tried will be authenticated by the signatures of the presi- dent and the judge advocate. A judge advocate should affix his signature to each day's proceedings. When- ever, 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 formally approved by the court, and must be authenticated by the signature of the president. (Par. 995, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) THE SUMMARY COURT-MARTIAL. (See act of Mar. 2, 1913.) 1. A summary court-martial shall consist of one officer. (C. H. C. M., No. 2, Apr. 21, 1913.) 2. The commanding officer of a garrison, fort, camp, or other place where troops are on duty, and the com- manding officer of a regiment, detached battalion, de- tached company, or other detachment may appoint summary courts-martial for his command ; but such summary courts-martial may in any case be appointed by superior authority when by the latter deemed de- sirable: Provided, That when but one officer is pres- ent with a command he shall be the summary court- martial of that command and shall head and de- termine cases brought before him. (Act of Mar. 2, 1913.) (C. M. C. M., No. 2, Apr. 21, 1913.) 3. When more than one officer is present with a command the commanding officer should not designate himself as the summary court. When but one officer is present with a command, 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." (C. M. C. M., No. 2, Apr. 21, 1913.) CHANGES. 259 4. Summary courts-martial shall have power to try any soldier, except one who is holding the privileges of a certificate of eligibility to promotion, for any crime or offense not capital made punishable by the Articles of War : Provided, That noncommissioned officers shall not, if they object thereto, be brought to trial before a summary court-martial without the authority of the officer competent to bring them to trial before a general court-martial. (Act of Mar.' 2. 1913.) Summary courts-martial may also try general pris- oners for like offenses. (Sec. 5, Act of June 18, 1898.) (C. M. C. M., No. 2, Apr. 21, 1913.} 5. The accused has no right to object to trial by summary court except as provided in the preceding paragraph, nor does the law require that when the trial officer is the accuser the case shall be tried by another court. (C. M. C. M., No. 2, Apr. 21, 1913.) 6. Summary courts-martial shall have power to ad- judge punishment not to exceed confinement at hard labor for three months or forfeiture of three months' pay, or both, and in addition thereto reduction to the ranks in the cases of noncommissioned officers and re- duction in classification in the cases of first-class pri- vates : Provided, That when the summary court officer is also the commanding officer no sentence of such summary court-martial adjudging confinement at hard labor or forfeiture of pay, or both, for a period in ex- cess of one month shall be carried into execution until the same shall have been approved by superior authority. (Act of Mar. 2, 1913.) (C. M. C. M., No. 2, Apr. 21, 1913.) 7. Summary courts have power to administer oaths ; to hear and determine cases; and, when satisfied of the guilt of an accused party, to adjudge the punish- ment to be inflicted. (See Act of July 27. 1892.) (C. M. C. M., No. 2. Apr. 21, 1913.) 8. The accused will be arraigned and allowed to plead, according to court-martial practice. When the 260 CHANGES. accused pleads not guilty, witnesses will be sworn and evidence received, the accused being permitted, to testify in his own behalf and make a statement, but the evidence and statement will not be recorded. The summary court, as soon as the trial is concluded, will record its findings and sentence in the summary court record and submit it to the officer appointing the court, who will record thereon his approval or disap- proval, in part or in whole, with date and signature. The findings and sentence of every trial by summary court, after having been signed by the summary courl officer, must be approved or disapproved, in whole or in part, and signed by the commanding officer as such, even though the latter be the only officer present with the command and sit as summary court. No other records of the proceedings will be kept, and such trials will not be published in orders. (Par. 972, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) 9. Charges submitted for trial by a summary court will be accompanied by the certified copies of previous convictions on file with the company records, which copies will be returned to the company records imme- diately after trial. If this evidence is not submitted, the summary court may take judicial notice of any such evidence which the summary court record con- tains. Whenever in determining on its sentence, a summary court shall take into consideration previous convictions, a note of the number of such previous convictions will be made on the summary court record. (Par. 971, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21. 1913.) .10. A summary court record shall be kept at the headquarters of each post and other command having a summary court, in which shall be entered a record of all cases heard and determined, and the action had thereon. The commanding officer authorized to ap- prove the sentences of summary courts and superior authority have power to remit or mitigate the same. CHANGES. 261 (Act of June 18. 1898.) (C. M. C. M., No.' 2, Apr. 21, 1913.) 11. The charges for offenses cognizable by summary courts will be laid before the proper commander, who, if he thinks the accused should be tried by a summary court, will cause him to be brought before such court. (Par. 972, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) 12. The summary court will be opened at a stated hour every day except Sunday for the trial of such cases as may properly be brought before it. Trials will be had on Sunday only when the exigencies of the service make it necessary. (Par. 975, A. R., 1910.) (C. M. C. M., No. 2, Apr..21, 1913.) 13. 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 his adjutant. (Par. 972, A. R., 1910.) (C. M. C. H., No. 2, Apr. 21, 1913.) 14. The name of each officer at a post who has acted as a summary court will be reported on the post re- turn with dates. (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 111.) Omit the Seventy-second Article of War. (C. M. C. If., No. 2, Apr. 21, 1913.) (Page 118.) Omit the Seventy-third and Seventy-fifth Articles of War. (C. M. C. J/., No. 2. Apr. 21, 1913.) (Page 119.) Omit the Eighty-first. Eighty-second, and Eighty- third Articles of War. (C. .!/. C. .., To. 2. Apr. 21, 19 13. ) (Page 129.) Omit the first section of the "Act Establishing the Summary Court." (C. M. C. J/., No. 2, Apr. 21, 1913.) 262 CHANGES. (Page 132.) Omit section 4, of "An Act to Prevent the Failure of Military Justice." (C. M. C. M.. No. 2, Apr. 21, 1913.) (Page 161.) In the notes of instructions on back of form for the record of trial by summary court, in the third para- graph, beginning, " Charges will be accompanied by the certified copies, etc.," omit the sentence, " If the charges be referred to a garrison or regimental court- martial (this form being used as a charge sheet), the copies of previous convictions will accompany them, but will be returned to the company records im- mediately after trial." In the next sentence, second line, substitute " or special " before " court-martial." For fourth paragraph substitute : When the summary court officer is also the commanding officer, no sen- tence of such summary court adjudging confinement at hard labor or forfeiture of pay, or both, for a period in excess of one month, shall be carried into execution until the same shall have been approved by superior authority, but the findings and sentence of every trial by summary court, after having been signed by the summary court officer, must be approved or disapproved, in whole or in part, and signed by the commanding officer as such, even though the latter be the only officer present with the command and sit as summary court. (Par. 972. A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) (Page 162.) Under " Instructions " for monthly report of sum- mary court cases, omit sentence, "At recruit depots and recruiting stations and other places exempted from the jurisdiction of commanders of territorial divisions and departments the reports will be for- warded directly to The Adjutant General of the Army." (Pars. 189, 998, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) CHANGES. 263 Beginning at " Record of a Garrison Court-Martial " omit to include page 165, and substitute therefor the following : RECORD OF A SPECIAL COURT-MARTIAL. Case . Accused . Proceedings of a special court-martial convened at , pursuant to the following order : - Orders 1 , No. - j , 191. A special court-martial is appointed to meet at , at . M., on , 191 , or as soon thereafter as practicable, for the trial of such per- sons as may be properly brought before it : Detail for the court : -, Judge Advocate. By order of , 191. The court met pursuant to the foregoing order at o'clock, . M. Present : 264 CHANGES. Absent : The court then proceeded to the trial of who, having been brought before the court, stated that he did not desire counsel introduced - - as counsel. The order convening the court and the order or orders modifying the detail were 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'. The accused was asked if he objected to any other member present, to which he replied in the negative. The members of the court and the judge advocate were then duly sworn. The accused was then arraigned upon the following charge and specification : To which the accused pleaded : The following-named persons were duly sworn and testified as witnesses for the prosecution: The following-named persons were duly sworn and testified as witnesses for the defense: CHANGES. 265 The accused stated that he had no testimony to offer, and no statement to make but made a state- ment to the court. The accused, his counsel, and the judge advocate then withdrew, and the court was closed and finds the accused. The judge advocate, the accused, and his counsel were then recalled, and the court opened; and the judge advocate stated that he had no evidence of previous convictions to submit, read the evidence of previous convictions. The judge advocate, the accused, and his counsel then withdrew, and the court was closed and sentences him The judge advocate was then recalled, and the court, at o'clock, . M., President. Judge Adrocatc. 266 CHANGES. REMARKS ON THE RECORD. 1. Strike out unnecessary words wherever found. 2. If at any time prior to the findings a question arises as to whether any member of the court is the accuser in the case, the record will show that fact and the action of the court in respect thereof. (See par. 4, p. 29, Manual for Courts-Martial, as amended.) 3. Should any member of the court be called as a witness for the prosecution, he will, before qualifying as a witness, be excused from further duty as a member, and the record will show that he was so excused. (C. M. C. M., No. 2, Apr. 21. 1913.) [2028324, A. G. O.] (Page 175.) In the form for " Interrogatories and Deposition," 5th line, after "general" insert "(or special) 2 ;" 14th line, omit " the convening authority," and leave the space blank. (C. M. C. M., No. '2, Apr. 21, 1913.) (Page 176.) After " general," in the 5th line of the order desig- nating the person to take the deposition, insert "(or special) 2 ." (C. M. C. M., No. 2, Apr. 21, 1913.) II. The following changes in notes at the bottom of pages in the Manual are made necessary by the above changes : Note 1, p. ^.Should read: Act of March 2, 1913. " The decision of the appointing authority as to the number of members of a general or a special court- martial is conclusive." (Par. 959, A. R., 1910.) (C. M. C. M., No. 2, Apr. 21, 1913.) Note 1, p. 13. Seventy-second Article of War. Should read: Act of March 2, 1913. (C. M. C. M., No. 2, Apr. 21, 1913.) Note 2, p. 13. Seventy-third Article of War. Should read: Act of March 2, 1913. (C. M. C. M., No. 2, Apr. 21, 1913.) CHANGES. 267 Note 4, p. 13. Paragraph 193, Army Regulations, should read: Par. 195, A. R., 1910. (C. M. C. M., No. 2, Apr. 21, 1913.) Note 1, p. 14. Should read: See Dig. Ops., J. A. G., 1912, p. 168, C, and notes. Paragraph 970, Army Regulations, 1910, provides : " When offenses against the peace and good order of civil communities are committed by persons subject to military law and such offenses are cognizable by courts-martial, the proper military authorities will be prompt in the pre- ferring of charges and the arraignment of offenders, having due regard for arrangements existing for the purpose of securing between the authorities of the two jurisdictions, civil and military, mutual aid and cooperation in the administration of justice. In such cases, if, after charges are preferred, the officer com- petent to order trial by the proper court-martial deems it inadvisable to bring the case to trial, he will forward the charges with his views thereon to The Adjutant General of the Army. (C. H. C. M., No. 2, Apr. 21, 1913.) Note 7, p. 15. Should read: Act of March 2. 1913 (C. M. C. M., No. 2, Apr. 21, 1913.) Note 10, p. 15. Should read : They have concurrent jurisdiction with special courts-martial in time of war over the persons mentioned in the Sixty-third Article of War. (C. M. C. .17.. No. 2, Apr. 21, 1913.) Note 11, p. 15. Should read: Paragraph 974, Army Regulations, 1910, prescribes that noncommissioned 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 by general court-martial. See, also, Act of March 2. 1913. (C. J/. C. M., No. 2, Apr. 21, 1913.) Note 1, p. 26. Should read : Paragraph 977, Army Regulations. 1910. This privilege of being repre- sented by counsel does not apply to cases before sum- mary courts. (C. M. C. .I/.. No. 2, Apr. 21, 1913.) 268 CHANGES. Note 2, p. 29 (added) . Act of March 2, 1913. ( C. M. C. M., No. 2, Apr. 21, 1913.) Note 2, p. 47- Should read : By " previous convic- tion " is meant a conviction where the sentence has been approved by competent authority. ( C. M. C. M., No. 2, Apr. 21, 1913.) [2028324, A. G. O.] BY ORDER OF THE SECRETARY OF WAR : W. W. WOTHERSPOON, Major General, Acting Chief of Staff OFFICIAL : GEO. ANDREWS, The Adjutant General. MANUAL FOB COURTS-MARTIAL. . CHANGES | WAR DEPARTMENT, No. 3. j WASHINGTON, March 31, 191-' f . Paragraph 15, under the heading " Retiring Boards,*' page 94, Manual for Courts-Martial (corrected to Au- gust, 1910), is changed to read as follows: 15. Two medical officers, not members of the retir- ing board, will be designated under instructions from the War Department, to make the physical examina- tion of the officer ordered before the board, and will be directed to report to the board as witnesses. Each of these medical officers will submit to the board a report in writing, giving the result of his examination of the officer ordered before the board, and will sub- sequently be called as a witness and interrogated by the board. The nature, causes, and permanency of any disability, and the degree of any incapacity for active service found to exist will be stated in the written report of the physical examination and made the subject of inquiry when the examining medical officer is before the board as a witness. While evi- dence as to the physical condition of the officer before the board will ordinarily be furnished otherwise than by the medical members of the board, the foregoing provisions will not be construed so as to prevent a physical examination of the officer being examined by the board by the medical members thereof, if the board so directs, nor to prevent any medical or other member of the board from giving testimony before the board. Whether any disability that may be found to exist is an incident of the service is a question for the board to determine upon the facts. (C. M. C. 1L, No. 3. 'liar. 31, 191.',.) * [2139372, A. G. O.] BY ORDER OF THE SECRETARY OF WAR : LEONARD WOOD. Major General, Chief of Staff. OFFICIAL : GEO. ANDREWS, The Adjutant General. 269 MANUAL FOR COURTS-MARTIAL. CHANGES 1 WAR DEPARTMENT, No - 4 - j WASHINGTON, September 24, 1914. I. Paragraphs 11 (page 50) and 12 (page 69), Man- ual for Courts-Martial. 1910, are changed as follows: (Page 50.) II. " If a soldier be brought to trial under a charge of desertion and acquitted, or convicted of absence without leave only, any amount paid as a reward for his arrest will not be stopped against his pay." 5 (C. M. C. If., No. 4, Sept. 24, 19V,.) (Page 69.) 12. Rescinded. (C. M. C. M., No. 4, Sept. 24, 1914.) II. Note 5, at bottom of page 50, Manual for Courts- Martial, 1910, is changed to read as follows: 5 Par. 128, A. R. (C. M. C. M., No. 4, Sept. 24, 1914.) III. The Executive order, prescribing limits of pun- ishment, pages 52-60, Manual for Courts-Martial, 1910, is rescinded, and the Executive order of Septem- ber 5, 1914, published in Paragraph I, General Orders. No. 70, War Department, 1914, is substituted therefor. (C. M. C. M., No. 4, ^pt. 24, 1914.) [ 2200240, A. G. O.] BY ORDER OF THE SECRETARY OF WAR : W. W. WOTHERSPOON, Major General, Chief of Staff. OFFICIAL : H. P. MCCAIN, The Adjutant General. 270 O [G. O. 70.] GENERAL ORDERS,! WAR DEPARTMENT, No. 70. J WASHINGTON, September 23, 1914. I.. The following Executive order is published for the informa- tion and guidance of all concerned : THE WHITE SOUSE, September 5, 1914. Under authority of the act of Congress approved September 27, 1890 (26 Stat., 491), the following limits of punishment of enlisted men and general prisoners are established: ARTICLE I. SECTION 1. In all cases of desertion the sentence may include dishonorable dis- charge and forfeiture of all pay and allowances due and to become due. SEC. 2. Subject to the modifications authorized in paragraph 3 of this section, the limit of the term of confinement (at hard labor) for desertion shall be as follows: 1. In case of surrender: (a) When the deserter surrenders himseli after an absence of not more than 30 days, 1 year, (fc) When the surrender is made after an absence of more than 30 days, 18 months. 2. In case of apprehension: (a) When at the time of desertion the deserter shall not have been more than 6 months in the service, 18 months. (6) When he shall have been more than 6 months in the service, 1\ years. 3. The foregoing limitations are subject to the modification that the punishment for desertion when joined in by two or more soldiers in the execution of a con- spiracy, or for desertion in the presence of an outbreak of Indians or of an unlawful assemblage which the troops may be opposing, shall not exceed dishonorable dis- charge, forfeiture of all pay and allowances due and to become due, and confine- ment at hard labor for five years. ARTICLE II. Except as otherwise indicated herein, punishments for the offenses hereinafter described shall not exceed the limits prescribed in the following table: Offenses. Punishment. UNDER THE 17TH ARTICLE OF WAR. Through neglect losing or spoiling horse or arms or accouterments or clothing, or items belonging to any two or more of said classes When the value of the property lost or spoiled is $50 or less. Confinement at hard labor for 3 months, and forfeiture of two-thirds of his pay per month for a like period. When the value of the property j Confinement at hard labor for 6 months, and lost or spoiled exceeds $50. forfeiture of two-thirds of his pay per month for a like period. 61430-14 1 [G. O. 70.] Offenses. Punishment. UNDER THE 17TH ARTICLE OF WAR continued. Selling horse or arras or accquter- ments or clothing, or items belonging to any two or more of said classes When the value of the property sold is $50 or less. When the value of the property sold exceeds $50. UNDER 20TH ARTICLE OF WAR. Behaving towar UNDER 32D ARTICLE OF WAR. Absence without leave for Not more than 30 days ing himself with disrespect ird his commanding officer. More than 30 days. UNDER 33D ARTICLE OF WAR. Failure to repair at the time fixed to the place appointed for Reveille roll call Retreat roll call 11 p. m. inspection Assembly of guard detail Guard mounting (by musician) Assembly of fatigue detail Parade Inspection Muster Target practice Drill.... Stable duty Athletic exercises School Assembly for march (including change of station), maneuver, or detached service. Leaving without permission the place appointed for Assembly of guard detail Guard mounting (by musician) Assembly of faiigue detail Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 1 year. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 5 years. Confinement at hard labor for 6 months, and forfeiture of two-thirds of his pay per month for a like period. Confinement at hard labor for 3 days and for- feiture of 2 days' pay for each day or frac- tion of a day of absence. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 6 months. Parade.. Inspection. Muster... Target practice. Stalleduty Athletic exercises. School... Forfeiture of 1 day's pay. Forfeiture of 2 days' pay. Forfeiture of 2 days' pay for each day or frac- tion of a day of the march, maneuver, or detached service not participated in as a result of the failure to report; but not to exceed a forfeiture of two-thirds of his pay per month for two months. Forfeiture of 3 days' pay. [G. O. 70.] O Senses. Punishment. UNDER 33D ARTICLE OF WAR COU. Leaving without permission the place appointed for Continued. March (including change of sta- tion), maneuver, or detached service. UNDER 38TH 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 parade or on parade. At inspection and muster At weekly or monthly inspec- tion. At inspection of guard detail or at guard mounting. At stable duty On fatigue UNDER 40TH ARTICLE OF WAR. Quitting guard.., UNDER 51 ST ARTICLE OF WAR. Advising or persuading soldier to desert. UNDER 60TII ARTICLE OF WAR. When the amount involved is 50 or less. When the amount involved ex- ceeds S50. UNDER 62D ARTICLE OF WAR. Assault. . . Aosault and battery. Forfeiture of 3 days' pay for each day cfr frac- tion of a day of the march, maneuver, or detached service not participated in as a result of the unauthorized departure, but not to exceed a forfeiture of two-thirds of his pay per month for 2 months. Confinement at hard, labor for 6 months and forfeiture of two-thirds of his pay per month for a like period. Forfeiture of 20 days' pay. Confinement at hard labor for 6 months, and forfeiture of two- thirds of his pay per month for a like neriod. Dishonorable discharge, forfeiture of all pav and allowances due and to become due, and confinement at hard labor for 1 vear. Do. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 5 years. Confinement at hard labor for 3 months and forfeiture of two-thirds of his pay per 'month for a like period. Confinement at hard labor for 6 months and forfeiture- of two-thirds of his pay per- month for a like period. [G. O. 70.] Offenses. Punishment. UNDER 62D ARTICLE OF WAR COn. Assault With a dangerous weapon, in- strument, or other thing. With a dangerous weapon, in- strument, or other thing, with intent to do bodily harm. With intent to commit any felony except murder or rape. With intent to commit murder or rape. Breach of arrest... Burglary. Disobedience of orders involving willful defiance of the authority of a noncommissioned officer in the execution of his office, or of a sentinel in the execution of his duty. Disrespect to a sentinel Drunkenness False official statement or report Noncommissioned officer Any other enlisted man. Forgery or uttering forged instru- ment. Fraudulent enlistment-- Procured by false representa- tions or concealment of a fact in regard to a prior enlist- ment or discharge, or in regard to conviction of a civil or military offense. Other cases of Indecent exposure of person, or committing nuisance. Dishonorable discharge, forfeiture of all pay and allowances due and to become due. and confinement at hard labor for 2 years. ' Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 5 years. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 10 years. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 20 years. Confinement at hard labor for 1 month and forfeiture of two-thirds of his pay for a like period. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 10 years. Confinement at hard labor for 6 months and forfeiture of two-thirds of his pay per month for a like period. Confinement at hard labor for 1 month and forfeiture of two-thirds of his pay for a like period. Forfeiture of 15 days' pay. Confinement at hard labor for 3 months and forfeiture of two-thirds of his pay per month for a like period. Confinement at hard labor for 1 month and forfeiture of two-thirds of his pay per month for a like period. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 5 years. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 1 year. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 6 months. Confinement at hard labor for 3 months, and forfeiture of two-thirds of his pay per month for a like period. [G. 0. 70.] Offenses. Punishment. UNDER 62D ARTICLE OF WAR COn. Introducing intoxicating liquor into post, camp, or quarters For personal consumption.. . . . For sale. . . Larceny or embezzlement When the value of the property stolen or embezzled is $50 or less. When the value of the property stolen or embezzled exceeds $50. Loaning money, either as principal or agent, at usurious rates of in- terest, to others in the military service. Losing or spoiling articles of equip- ment through neglect- When the value of the property lost or spoiled is S50 or less. When the value of the property lost or spoiled exceeds $50. Manslaughter Involuntary in the commis- sion of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and cir- cumspection. Voluntary upon a sudden quarrel or heat of passion. Military prisoner in custody after dishonorable discharge- Attempting to escape or con- spiring with others to escape. Effecting escape from sentry or guard or from place of con- finement or while on parole. Noncommissioned officer gambling with military inferior. Perjury Robbery. Sentinel or member of guard Allowing prisoner under his charge to obtain liquor. Forfeiture of 10 days' pay. Confinement at hard labor for 6 months, und forfeiture of two-thirds of his pay per month for a like period. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 1 year. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 5 years. Forfeiture of two-thirds of his pay per month for 2 months. Confinement at hard labor for 3 months and forfeiture of two-thirds of his pay per month for a like period. Confinement at hard labor for 6 months and forfeiture of two-thirds of his pay per month for a like period. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 3 years Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 10 years. Confinement at hard labor lor 6 months. Confinement at hard labor for 1 vear. Forfeiture of two-thirds of his pay per month for two months. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 5 years. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 10 years. Confinement at hard labor for 2 months and forfeiture of two-thirds of his pay per month for a like period. [G.0.70.J Offenses. Punishment. UNDEK 62D ARTICLE OF WAR COn. Sentinel or member of guard Con. Drinking liquor with prisoner. . Allowing a prisoner under his charge to escape through neglect. Wilfully allc wing a prisoner un- der his charge to escape. Sodomy Using threatening or insulting lan- guage or behaving in an insubor- dinate manner to a noncommis- sioned officer in the execution of his office. Confinement at hard labor for 2 months and forfeiture of two-thirds of his pay per month for a like period. Confinement at hard labor for 6 months and forfeiture of two-thirds of his pay per month for a like period. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 1 year. Dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for 5 years. Confinement at hard labor for 2 months and forfeiture of two-thirds of his pay per month for a like period. ARTICLE III; SECTION 1. Substitutions for punishments mentioned in Article II of this order are authorized, at the discretion of the cpurt, at the following rate: Forfeiture of one day's pay for confinement at hard labor fo> one day, or the reverse. SEC. 2. In lieu of forfeiture of pay the court may, at its discretion, adjudge deten- tion of pay at the rate of detention of one and one-half days' pay for each day of pay the forfeiture of which is authorized; but no sentence shall adjudge the deten- tion of more than two-thirds of the soldier's pay per month for three months. SEC. 3. In lieu of confinement at hard labor the court may, at its discretion, adjudge hard labor without confinement at the rate of one and one-half days of hard labor without confinement for each day of confinement at hard labor author- ized; but no sentence shall adjudge hard labor without confinement for a greater period than three months. ARTICLE IV. SECTION 1. Detention or forfeiture of more than two-thirds of his pay for any one month shall not, by a single sentence, be adjudged against a soldier who is retained in the service, except when such retention is under a suspended sentence of dis- honorable discharge. SEC. 2. Upon conviction by a court-martial of any offense for which confinement at hard labor for a period of five days or more may be adjudged, authorized substi- tutions considered, a noncommissioned officer who is subject to reduction by sentence of court-martial may be sentenced to reduction. A similar rule will apply in respect of first-class privates. ,SEC. 3. Neither hard labor without confinement nor confinement at hard labor wjill be adjudged against a noncommissioned officer unless the sentence includes reduction to the ranks. [G. 0. 70.] SEC. 4. When a soldier shall, upon one arraignment, be convicted of two or more offenses, none of which is punishable under Article II of this order or the custom of the service with dishonorable discharge, but the aggregate term of con- finement for which, as specified in said article, may exceed six months, dishonor- able discharge with forfeiture of all pay and allowances due and to become due may be adjudged in addition to the authorized confinement. SEC. 5. If, in any case in which the limit of punishment is dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for a stated number of months, dishonorable discharge be not adjudged, the limit of forfeiture shall be two-thirds of the soldier's pay per month for a period equal to the prescribed limit of confinement. SEC. 6. When a soldier is convicted of an offense or offenses for which dishonor- able discharge is not authorized he may. nevertheless, upon proof of five previous convictions, be sentenced to be dishonorably discharged with forfeiture of all pay and allowances due and to become due in addition to the confinement at hard labor authorized for the offense or offenses of which he is convicted. ARTICLE V. SECTION 1. When a soldier is convicted of an offense the court will receive evi- dence of previous convictions, if there be any. General and special 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. Evidence of such previous con- viction will be considered by the court in determining the measure of punishment in cases in which discretionary punishment is authorized and by superior authority in determining action upon the sentence and upon requests for clemency. SEC. 2. The introduction and use of evidence of previous convictions will be limited to that pertaining to previous convictions by court-martial of an offense or offenses committed within one year next preceding the commission of any of the offenses charged and during the current enlistment. These convictions must be proved by the records of previous trials and convictions or by duly authenti- cated copies of such records or by duly authenticated orders promulgating such trials and convictions. ARTICLE VI. SECTION 1. Hard labor, when imposed as a punishment without confinement, will be adjudged in terms of days or months and shall be performed in addition to other duties normally falling to the soldier. No soldier shall be excused or relieved from any military duty for the purpose of performing hard labor imposed as a punishment without confinement, but a sentence imposing such punishment will be considered as satisfied when the soldier has performed hard labor during available time in addition to performing his military duties. SEC. 2. Pay detained pursuant to the sentence of a court-martial will be detained by the Government until the soldier is discharged from his current enlistment, at which time the authority for the detention and the amount thereof will be noted on the final statement and the amount detained, if not forfeited, paid to him out of the appropriation for the pay of the Army in force at the time. [G. O. 70.] 8 SEC. 3. A sentence to be dishonorably discharged and to forfeit all pay and allowances due and to become due operates to forfeit pay detained under a prior sentence. In other cases of sentences to forfeit pay, detained pay will not be for- feited unless the sentence expressly so provides. ARTICLE VII. SECTION 1. This order prescribes the maximum limit of punishment for each of the offenses described, and thus indicates an appropriate punishment in cases in which the offense is attended by aggravating circumstances or in which there is evidence of a number of previous convictions. In all other cases the punishment will be graded down according to the circumstances of the case. SEC. 2. Offenses not herein provided for remain punishable as authorized by the Articles of War and the custom of the service. ARTICLE VIII. This order, which will take the place of existing orders establishing limits of pun- ishment, shall become operative in the United States, in Porto Rico, the Canal Zone, and in occupied territory in Mexico, on October 1, 1914, and elsewhere within the jurisdiction of the United States on November 1, 1914. WOODROW WILSON. [2206114, A. G. O.] II.. In connection with the foregoing Executive order, the fol- lowing is published : 1. Punishment for desertion. The policy of the department respecting punishment for desertion was announced in General Orders, No. 77, War Department, June 10, 1911. Corrective con- finement and forfeiture were suggested in case of inexperienced soldiers who by surrender manifested a disposition to atone for their offenses. The number so punished and saved to the service has increased each year that this policy has been enforced with fairly satisfactory results. In addition, a limited number of this class of offenders have been restored to duty without trial under provisions of paragraph 131, Army Regulations. Since the issue of that order important changes have been intro- duced in our military penology. Under'a recently approved con- struction of section 1352, Revised Statutes, purely military offenders serving sentences in the military prison and its branches may be restored to an honorable status and complete their enlist- ment. By the act of August 22, 1912, reenlistment of this class of offenders is authorized with the approval in each case of the Secretary of War. Under the provisions of the act of April 27, [G.0.70.] 1914, dishonorable discharge may be suspended with a view to restoration to duty by remission thereof should the conduct of the prisoner warrant. There are now additional means of saving men to the colors, men whose offenses are thoughtless acts due to youth or inexperience or committed under some special stress and for these reasons have in them less of the element of culpability. Sup- plementing these methods is the establishment of disciplinary organizations at our military prisons where the prisoners of this class who desire reenlistment or restoration may receive an inten- sive practical training to fit them for efficient service from the moment of rejoining. It is confidently believed that men restored in this way will make better soldiers than those restored by the old methods, viz, without trial under paragraph 131, Army Regulations, or with trial and a short period of corrective punishment. These old methods may be continued in the limited number of cases where there are good grounds for belief that a soldier restored by that method will creditably complete his enlistment period; but all doubtful cases should be sent before a court competent to adjudge dishonorable discharge and the longer periods of confine- ment prescribed in this order, to the end that the more effective methods of reformation and training by hard labor and intensive practical military instruction now provided at the prisons may be availed of. These periods of confinement are graduated so as to prevent inequalities of punishment for like degrees of culpability and are sufficient, it is believed, to meet the ends of punishment where restoration to duty is not in contemplation. Where restora- tion is in contemplation, as in case of purely military offenders, including deserters, the period of confinement imposed is, under the new policy, in practical effect, the maximum of an indeter- minate sentence. In other words, the period for which the offender is held depends entirely upon himself. With good conduct and proper progress toward reform evidencing efficiency in training and fitness to resume service relations, the sentence of confinement terminates and honorable status of duty with the colors is resumed. While it is the effect of this order to mitigate the condition of the peace deserter who desires to redeem his record and earn an honorable restoration to duty with the colors, it carries no sub- 61430 14 2 tG.0.70.] 10 stantial mitigation as to other classes of deserters. Experience has not thus far demonstrated the wisdom of any change in the policy of severe punishment for this latter class. An engagement for military service has little in common with an ordinary private contract for personal service, and the fact that an individual may abandon such a contract with only minor consequences to himself furnishes no suggestion -that a corresponding rule may be properly adopted in the Army. Nor does the fact that the early requirement of the common law that a call to civil office or civil employment under the Government could not be disregarded by the citizen, nor the obligations of such office or employment be laid down at his will, no longer obtains, furnish any such suggestion. An engage- ment for military service creates a special status, and many obliga- tions flow from that status which are not obligations of the citizen in the civil service of the Government or under a private contract for personal service. Other closely related considerations inherent in the nature of military service support this view. The Army is an emergent arm of the public service which the nation holds ready for a time of great peril. Military service is an obligation which every citizen owes the Government. It is settled law that such service may be compelled, if necessary, by draft. Nor is the obligation of the soldier who volunteers for a fixed period different from that of the drafted soldier. By his act of volunteer- ing he consecrates himself to the military service. His engage- ment, supported by an oath of allegiance, is that the Nation may depend upon him for such service during the fixed period, what- ever may be the emergency. When this engagement is breached a high obligation to the Nation is disregarded, a solemn oath of allegiance is violated, and the Government is defrauded in the amount of its outlay incident to inducting the soldier into the military service, training, clothing, and caring for him while he remains in that service, and transporting him to the station from which he deserts. Desertion is thus seen to be, not simply a breach of a contract for personal service, but a grave crime against the Government; in time of war perhaps the gravest that a soldier can commit, and at such times punishable with death. These facts furnish ample justification for a continuance of the policy of severe punishment for the offense of desertion in time of peace, tfi.0.70.] 11 subject only to the qualification that it should not be severe to the degree of barring. an honorable restoration to duty of the thought- less, young, or inexperienced offenders who desert and who, on return, manifest a desire to atone for their desertions and qualify themselves in character and training for such restoration by service in the disciplinary battalions and companies now organized at cur prisons. 2. Relative seventy of punishments. The punishments mentioned in the Executive order published in Paragraph I hereof may be ar- ranged in the following order as expressive of their relative severity, beginning with the least severe: (1) Detention of pay, (2) forfeiture of pay, (3) reduction, (4) hard labor without confinement, (5) con- finement at hard labor, and (6) dishonorable discharge. In the absence of evidence of two or more previous convictions, a minor offense the nature of which appears to demand punishment by hard labor should ordinarily be punished by hard labor without confinement rather than by confinement at hard labor. For of- fenses properly punishable by detention of pay, forfeiture of pay, reduction, or hard labor without confinement, those forms of pun- ishment should, as a rule, be resorted to before confinement at hard labor is imposed. It is to be noted that no mention is made in the foregoing Executive order of solitary confinement on bread and water diet. The omission is based upon the theory that solitary confinement on a restricted diet should be regarded rather as a means of enforcing prison discipline than as a punishment to be imposed by sentence of a court-martial. 3. Adaptation of punishment. The best interests of the service and of society demand thoughtful application of the following principles: That because of the effect of confinement upon the soldier's self-respect confinement is not to be ordered when the interests of the service permit it to be avoided; that a man against whom there is no evidence of previous convictions for the same or similar offenses should be punished less severely than one who has offended repeatedly; that the presence or absence of extenuating or aggravating circumstances should be taken into consideration in determining the measure of punishment in any case; that the maxi- mum limits of punishment authorized are to be applied only in [G. O. 70.J 12 cases in which, from the nature and circumstances of the offense and the general conduct of the offender, severe punishment appears to be necessary to meet the ends of discipline; and that in ad- judging punishment the court should take into consideration the individual characteristics of the accused with a view to determining the nature of the punishment best suited to produce the desired results in the case in question, as the individual factor in one case may be such that punishment of one class would serve the ends of discipline, while in another case punishment of a different class would be required. As an instance of the necessity for adapting punishment to the particular case under consideration, it is to be noted that prior experience with detention of pay by sentence of court-martial indicates that this form of punishment, while not generally applicable, was nevertheless found to be an effective means of restraint and discipline for a considerable number of offenders. 4. Duplication of charges. The duplication of charges for the same act or omission will be avoided except when, by reason of lack of definite information as to available evidence, it may be necessary to charge the same act or omission as constituting two or more distinct offenses. When the same act or omission in its different aspects is charged as constituting two or more offenses, the court, even though it arrives at a finding of guilty in respect of two or more specifications, should impose punishment only with reference to the act or omission in its most important aspect, and if this rule be not observed by the court the reviewing au- thority should take the necessary action. For example, a soldier should not be punished under authority of the thirty-third article of war for failure to report for an ordinary stated duty when he is punished for absence without leave in violation of the thirty- s?cond article of war for the same period. Neither, as a rule, should a soldier be punished for disorderly conduct and also for assault when the disorderly conduct consisted in making a dis.- turbance incident to the assault. 5. Forms of sentences. Sentences adjudged by courts-martial will be expressed substantially in one or the other of the following forms: [G. 0. 70.] 13 Form 1. To have his pay for days detained until he is discharged from his currant enlistment. Form 2. To have (a fraction) of his pay per month for months detained until he is discharged from his current enlistment. Form3. To forfeit days' pay. Form 4. To forfeit (a fraction) of his pay per month for months. Form 5. To be reduced to the ranks (or to the grade of private or second-class private). Form 6. To perform hard labor for days (or months). Form 7. To perform hard labor for months and to forfeit (a fraction) of his pay per month for a like period. Form 8. To be confined at hard labor at such place as the reviewing authority may direct for months and to forfeit .(a, fraction) of his pay per month for a like period. Form 9. To be dishonorably discharged the service of the United States and to forfeit all pay and allowances due or to become due. Form 10. To be dishonorably discharged the service of the United States; to forfeit all pay and allowances now due, or to become due while in confinement under this sentence; and to be confined at hard labor at such place as the reviewing authority may direct for months (or years). 6. Suspension of sentences not involving dishonorable discharge. By direction of the President the authority competent to order the execution of a sentence adjudged by court-martial is authorized, if the sentence does not involve dishonorable discharge, to suspend the execution of the whole or any part of the sentence; and the soldier under sentence may be restored to duty during the sus- pension of confinement. At any time within three months after the sentence would have been executed in the absence of an order suspending the execution thereof, the order of suspension may, for sufficient cause, be vacated and the execution of the sentence directed by the authority competent to order the execution of like sentences in the command to which the soldier under sentence belongs or in which he may be found ; but if the order of suspen- sion be not vacated within the period here indicated the suspended sentence shall be held to have been remitted, as shall also be the case if the soldier be honorably discharged. The form of action of the reviewing authority in a case in which he directs a suspen- sion of the execution of a sentence will be sabstantially as follows: [G. O. 70.] 14 (a) When the execution of the entire sentence is to be suspended: In the foregoing case of the sentence is approved but the execution thereof is suspended, until othenvise ordered by competent authority, during the soldier's good behavior. Subject to these conditions he will be released from arrest (or confinement) and restored to duty. (6) When the execution of so much of the sentence as relates to confinement at hard labor, or to confinement alone, or to hard labor without confinement, is to be suspended, leaving the remainder of the sentence to be executed: In the foregoing case of the sentence is approved but the execution of so much of the sentence as relates to confinement at hard labor (or to confinement , or to hard labor without confinement) is suspended, until otherwise ordered by competent authority, during the soldier's good behavior. Subject to these con- ditions he will be released from arrest (or confinement) and restored to duty. The form of an order vacating an order of suspension will be substantially as follows: having by his conduct violated the conditions under which the execution of the sentence of a court-martial, approved on (if the sen- tence is by special or general court-martial, cite order here) was suspended, the order of suspension is vacated and the sentence so suspended will be carried into execution. 7. Suspension of sentences of dishonorable discharge. Under the provisions of the act of April 27, 1914, reviewing authorities in approving sentences of general courts-martial may, whenever the character of the offense for which the sentence is imposed and the facts developed by the evidence indicate that there is a probability of reclaiming the soldier to honorable service, suspend, until the soldier's release from confinement, the execution of that part of the sentence providing for dishonorable discharge. Should it subse- quently develop that the soldier's retention in the service is not warranted, the authority having general court-martial jurisdiction over the command in which the soldier is held will vacate the order directing a suspension of that part of the sentence providing for dis- honorable discharge and direct that dishonorable discharge imme- diately issue. The form of order of suspension will be: The execution of that portion of the sentence imposing dishonorable discharge is suspended until the soldier's release from confinement, unless sooner ordered by competent authority. [G.O.70.] 15 The form of an order vacating such an order of suspension will be substantially as follows: The order suspending the execution of the sentence of dishonorable discharge in the case of (G. C. M. O. ) is hereby vacated, and the sentence so suspended will be carried into execution. 8. Effect of pica of guilty to be explained.- In each case tried by a general court-martial in which the accused enters a plea of guilty it shall appear of record that the meaning of his plea and the extent of the punishment to which it may subject him was adequately explained to the accused by the president of the court, and that the accused was, after such explanation, asked if he desires to have the plea of guilty stand. If he replies in the affirmative, the plea of guilty will stand; otherwise, a plea of not guilty will be entered. The explanation of the president and the reply of the accused thereto shall appear upon the record of trial. The same rule will apply in cases tried by special court-martial when the evidence heard is made of record. 9. Right of accused to testify. In each case tried by a general court-martial in which the accused does not testify or make any statement in his own behalf, it shall appear of record that the presi- dent of the court explained to the accused that he may testify in his own behalf if he so desire, or may make a statement to the court in denial, in explanation, or in extenuation of the offense with which he stands charged. The explanation by the president and the reply of the accused thereto shall appear upon the record of trial. The same rule will apply in cases tried by special court- martial when the evidence heard is made of record. 10. Statute of limitations. In each case tried by general court- martial in which, upon the face of the record, it appears that the accused might successfully plead the one hundred and third article of war, but in which he has not interposed such plea, it shall be made tc appear of record that the president of the court advised the accused of his legal rights in the premises. 11 . Reasons for findings and sentence. A court-martial may spread upon the record of trial a brief statement of reasons upon which its findings and sentence are based. In many cases such a statement will aid the reviewing authority in determining the action to be taken by him. [G.0.70.J 16 12. Recommendations to clemency. When a court-martial, or any member thereof, desires to submit a recommendation to clemency, including a recommendation for the suspension of the whole or of any part of the sentence imposed by the court, such recommendation will be signed by each member of the court desiring to participate therein. The communication carrying the recommendation will include a statement in succinct form of the reasons upon which the recommendation is based and will be appended to the record of trial. 13. Preliminary investigation. The investigation required before forwarding a charge with the recommendation that the accused be brought to trial before a general court-martial, shall include giving the accused an opportunity to make any statement or present any evidence he may desire then to have considered in connection with the accusation against him; and the statement of evidence for- warded with the charge when trial by general court-martial is recommended shall include a summary of any material statement made by the accused or any material evidence presented by him, and particularly a summary of any extenuating circumstances connected with the case. 14. Mitigation of certain sentences. Subject to the limitations expressed in Article III of the Executive order published in Para- graph I hereof, forfeiture of pay adjudged by a court-martial may be mitigated to detention of pay for a like period, and confinement at hard labor mitigated to hard labor without confinement for a like period. 15. Reports of trial judge advocates. On Saturday of each week each judge advocate of a general court-martial will report, through the president of the court and the post commander, to the con- vening authority, a list of charges on hand, showing the date of receipt of each; and if any case has been in the hands of the judge advocate for one week or more and the record of trial has not been forwarded to the convening authority, the report will include a statement of the reasons for the delay. The president of each general court-martial will take the proper steps to insure prompt trial and disposition of all charges referred for trial. [G. 0. 70.] 17 16. Judge advocate advising accused. When the accused is an enlisted man and without counsel the following rules will be observed. In so far as such action may be taken without prejudice to the rights of the accused any advice given him by the judge advocate should be given or repeated in open court; and in any case in which the accused has been advised by the judge advocate that fact and the general nature of the advice will be noted upon the record of the trial. 17. Conformity to Federal Penal Code. It is to be noted that in the limits of punishment prescribed in the Executive order quoted in Paragraph I hereof for offenses denounced by the Federal Penal Code, the limit of punishment prescribed by that code has in no case been exceeded. 18. When effective. The forms for sentences of dishonorable dis- charge and dishonorable discharge with confinement at hard labor set forth in section 5 of Paragraph II of this order shall become operative from the date this order is received at posts or stations of the Army. By direction of the President all other parts of this order shall, notwithstanding the provisions of Article VIII of the Executive Order published in Paragraph I, become operative in the United States, Porto Rico, and Canal Zone on November 1, 1914, and elsewhere within the jurisdiction of the United States on December 1, 1914. [2206114, A. G. O.] III. . All orders or parts of orders in conflict with the provisions of Paragraphs I and II of this order are rescinded. [2206114, A. G. O.] BY ORDER OF THE SECRETARY OF WAR! W. W. WOTHERSPOON, Major General, Chief of Staff, OFFICIAL: H. P. McCAIN, The Adjutant General. o UNIVERSITY OF CALIFORNIA LIBRARY THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW OCT 26 1916 , ;<- 12 1917 SEP 5 1917 DEC 3 1918 30m-l,'15 YB 24593