THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA GIFT OF Estate of David Prescott Barrows MILITARY LAW AND THE PROCEDURE OF COURTS-MARTIAL BY EDGAE S DUDLEY, LL.B., LL.D. COLONEL, JUDGE ADVOCATE, U. S. ARMY Professor of Law at the United States Military Academy West Point, New York FIRST EDITION FIRST THOUSAND YORK JOHN WILEY & SONS LONDON: CHAPMAN & HALL, LIMITED 1907 Copyright, 1907 BY EDGAR S. DUDLEY ROBERT DRUMMOND, PRINTER, NEW YORR Add to Lib/ /OTT7T PREFACE THIS book has been prepared to meet the existing neces- sity at the United States Military Academy for a text-book which would give a clear and thorough outline of the science of military law, including all recent changes and developments, and yet be contained within such brief compass as to be adapted for use in the instruction of Cadets within the limited period assigned to the study of the subject. The work also aims to deal with the general procedure of courts-martial and to set forth that pro- cedure and existing military laws in such a manner as to make a text of practical use to the service at large. The author wishes to acknowledge the constant and valuable assistance received from the Assistant Professor and Instructors in the Department of Law at the Military Academy, who, during the past year, have given instruc- tion in the text as tentatively prepared and have made suggestions and criticisms which have resulted in a clearer and better presentation of the subject matter and the elimination of some errors. These officers are: Captain J. K. Moore, 15th U. S. Infantry, Assistant Professor; First Lieutenants Irvin L. Hunt, 19th Infantry; Halsey E. Yates, 5th Infantry; Edwin G. Davis and Edward Canfield, Jr., Artillery Corps. It is desired to include in this acknowledgment the assist- ance in revision and correction of the work received from iii 456 iv PREFACE First Lieutenant S. T. Ansell, llth Infantry, since de- tailed as an Instructor in the Department. The author is greatly indebted to General George B. Davis, Judge-Advocate-General United States Army, for his encouragement and advice, and to the text of his more extensive work on Military Law, from which author- ity many quotations have been made; also, for an ex- amination and review of this work, to General J. W. Clous, Judge-Advocate-General United States Army, re- tired, whose long experience in the service, and as Pro- fessor of Law at the United States Military Academy from 1890 to 1895, gives especial value to his criticism and sug- gestions. WEST POINT, N. Y., December, 1906. CONTENTS CHAPTER I PAGE MILITARY JURISDICTION. Military Law; Military Government; Martial Law 1 CHAPTER II MILITARY LAW. Origin of Military Code; Statutes; Army Regu- lations; Orders; Decisions, etc 5 CHAPTER III MILITARY TRIBUNALS. Jurisdiction; Functions, etc 13 CHAPTER IV GENERAL COURTS-MARTIAL. Authority for; Who may Convene . 18 CHAPTER V COMPOSITION OF GENERAL COURTS-MARTIAL. Eligibility of Members 24 CHAPTER VI JURISDICTION OF COURTS-MARTIAL. GENERAL COURTS-MARTIAL. Territorial Jurisdiction; Jurisdiction over Persons and Offenses; Jurisdiction over Persons after Expiration of Service; Contempts 28 CHAPTER VII JURISDICTION. INFERIOR COURTS-MARTIAL. Garrison Court- martial; Regimental Court-martial; the Summary Court ... 40 CHAPTER VIII ARREST AND CONFINEMENT. Arrest of Officers; Status of Arrest; Arrest of Enlisted Men 50 v Vl CONTENTS CHAPTER IX ARREST OF PERSONS IN MILITARY SERVICE BY CIVIL AUTHORITIES. Service of Process on Military Reservations, over which Jurisdiction has not been Ceded; Where Jurisdiction has been Ceded. 57 CHAPTER X CHARGES AND SPECIFICATIONS. How Drawn; Who may Prefer; Service of Charges; Papers to Accompany Charges 62 CHAPTER XI ORGANIZATION OF COURTS-MARTIAL. Members; President; Quo- rum; Uniform 69 CHAPTER XII THE JUDGE-ADVOCATE; COUNSEL FOR THE ACCUSED. Reporter; Interpreter 76 CHAPTER XIII CHALLENGES; OATH OF MEMBERS AND JUDGE-ADVOCATE. Inde- pendence of the Court ; Postponement of the Trial 86 CHAPTER XIV ARRAIGNMENT; PLEAS. Nolle Prosequi 93 CHAPTER XV ATTENDANCE OF WITNESSES. Writ of Attachment; Habeas Corpus 107 CHAPTER XVI INTRODUCTION OF EVIDENCE; DEPOSITIONS 116 CHAPTER XVII DEFENSES. Elements Necessary to Constitute Crime 128 CHAPTER XVIII THE FINDING. Finding of Lesser Kindred Offense 139 CHAPTER XIX PREVIOUS CONVICTIONS. When Submitted, etc 144 CONTENTS Vii CHAPTER XX PAGE SENTENCE AND PUNISHMENT. Sentence to Penitentiary; to Mili- tary Prison; Date Sentence Takes Effect; Sentence in Excess of Law 148 CHAPTER XXI PUNISHMENTS. Forms of, for Officers; for Enlisted Men 155 CHAPTER XXII VOTING. Recommendation to Clemency 173 CHAPTER XXIII THE RECORD. Proceedings how Recorded; Revision Proceedings; Disposition of Records 177 CHAPTER XXIV THE REVIEWING AUTHORITY. Action of; Execution of Sentences. 195 CHAPTER XXV PARDON OR MITIGATION OF PUNISHMENT; REVIEW OF PROCEED- INGS OF COURTS-MARTIAL BY CIVIL COURTS 205 CHAPTER XXVI COURTS OF INQUIRY. How Constituted; Mode of Procedure; Record 212 CHAPTER XXVII RETIREMENT: RETIRING BOARDS. Composition, Constitution, etc.; Retirement on Examination for Promotion 220 CHAPTER XXVIII BOARDS: SURVEYS ON PROPERTY. The Surveying Officer 237 CHAPTER XXIX \ EVIDENCE. Rules of Evidence Applied by Courts-martial; Classification, etc.; Competency and Credibility of Wit- nesses; Incriminating Evidence 246 CHAPTER XXX THE LAWS OF WAR. Military Government; Martial Law; the Military Commission. EMPLOYMENT OF TROOPS IN THE EN- FORCEMENT OF THE LAWS, RELATIONS OF MILITARY PER- SONS TO CIVIL AUTHORITY . 296 Vlll CONTENTS CHAPTER XXXI PAGB THE ARTICLES OF WAR SEPARATELY CONSIDERED 324 APPENDICES APPENDIX A. ARTICLES OF WAR 459 APPENDIX B. ACT ESTABLISHING THE SUMMARY COURT 480 APPENDIX C. ACT TO PREVENT THE FAILURE OF MILITARY JUSTICE 482 APPENDIX D. EXECUTIVE ORDER ESTABLISHING LIMITS OF PUNISHMENT 484 APPENDIX E. GENERAL FORMS. FORMS Nos. 1 TO 26 494 ABBKEYIATIONS A. H Army Regulations, Edition 1904. Art Articles of War. Court-martial Manual ... Manual for Courts-martial, Edition 1905. Dig. Op. J. A. G Digest Opinions Judge-Advocate-General, U. S. Army, Edition 1901. R. S Revised Statutes U. S. IX NOTE By the Act of Marcli 2, 1907, the Military Secretary's Department having been changed to the Adjutant- Gen- eral's Department, the words " Adjutant- General " should be substituted for the words " Military Secretary " where- ever they occur in this book. MILITARY LAW AND THE PROCEDURE OF COURTS-MARTIAL CHAPTER I MILITARY JURISDICTION; MILITARY LAW; MILITARY GOVERNMENT; MARTIAL LAW 1. Jurisdiction. Jurisdiction, in its most general sense, is the power to make, declare and apply the law. The jurisdiction of a state is its sovereign power to govern or legislate, and to exercise its authority within its territorial limits. 1 2. Military Jurisdiction is the power to make, declare and apply the law pertaining to the military forces of a nation in all its forms of action and operation. It is applicable not only to persons in the military service and to those conditions of their service which impose upon them duties with regard to persons not ordinarily subject to military jurisdiction, but it also governs other persons, under cir- cumstances which place them within the sphere of military operations, making them subject thereto, as in the field of operations in time of war, or -during the existence of serious domestic disturbances at any time. 1 U. S. v. Bevans, 3 Wheat. (16 U. S.) 386 et seq .; R. I. v. 12 Pet. (37 U. S.) 733. 2 MILITARY LAW Military jurisdiction includes, then, not only military law proper, as applied to persons in the military service, but also military government and martial law, each of which has its proper place in relation to the other and to the government and conduct of armed forces and of those persons subject, for the time being, to its control. 3. Military Law in its strict sense, as used in this text, is that law which governs all persons in, or legally belong- ing to, the military establishment of the nation and which is in force at all times, in peace or in war, 1 and in all places, at home or abroad. The general term " military law" has often been used as synonymous with " martial law 7 ' and also to include the "law of military occupation "; but this use of the term is incorrect; each of these terms has its own definite and proper meaning and construction to be given it. 4. Military Government, or the " government of military occupation/' is the government established by a com- mander over occupied enemy's territory and is therefore within the domain of international law and the laws of war. It is, in fact, the will of the Chief Executive of the nation exercised through the commander of the occupy- ing military forces. It exists in conquered or occupied territory where civil authority has ceased, and all the functions of government, legislative, executive, and ju- dicial, are for the time being united in the powers of the military commander, and are exercised by him under the authority, and as the representative, of the Chief Execu- tive of his nation. The enemy's territory may be either foreign conquered territory, or territory within the state held by rebels who are recognized as belligerents. 5. Martial Law is that rule by the military power which, as a result of public exigency or military necessity, may be exercised in time of war, insurrection or rebellion, 1 See par, 771, post. MARTIAL LAW 3 in parts of the country retaining their allegiance, over persons and things not ordinarily subject to such rule; and also, in time of war, insurrection or rebellion, it is the law applicable to persons in the military service with regard to acts or obligations arising out of such emer- gency not falling within the domain of military law, nor otherwise regulated by law. 1 Wheji exercised in domestic territory, it is limited to, and proclaimed only in, those places where civil authority has ceased to exist and the ordinary civil processes and functions must necessarily be replaced by the strong and arbitrary power of military au- thority exercised within the limit of a sound discretion and under a sense of future responsibility. 2 Whenever the necessity for its existence ceases and civil functions are resumed, martial law disappears, the military being always subordinate to the civil in time of peace when civil powers are unrestrained. 6. Military law has its code, or statute law, and its com- mon or unwritten law consisting of recognized usages and customs of the service. Military government has no code; the governing power is simply the will of the commander exercised according to, and controlled by, the usages, customs and laws of war as recognized by all civilized nations. The military commander, while not responsible to the courts of the occupied territory, may be required to an- swer for any illegal, arbitrary or unjustifiable acts by the authorities of his own country. But if his acts, done in his official capacity, have been directed or authorized by his government, or, even though in excess of his authority, are afterward ratified by it, they then become the acts of the government, and he is relieved from responsibility therefor. 3 1 Court-martial Manual, p. 5. 2 See Mitchell v. Harmony, 13 How. (54 U. S.) 115. 8 See par. 660-667, post. 4 MILITARY LAW Martial law is also the will of the military commander, but the acts of such commander are always subject, after the exigency is over, to come directly under the cognizance of the civil authority of the state, and he may be held liable in its courts for any act of injustice arising from arbitrary conduct or unjustifiable use of his powers. His whole duty is to regulate the disorder prevailing and to restore the civil authority to power just as soon as practicable, mean- while conducting the affairs of the disturbed region ac- cording to his best judgment for the benefit of all its inhabitants and their rights, and with justice to all. 1 1 See par. 668-678, post. CHAPTER II MILITARY LAW 7. " Military Law in the United States consists of the Rules and Articles of War and other statutory provisions for the government of persons subject to military control, to which may be added the unwritten or common law derived from the usages and customs of military service." ORIGIN OF OUR MILITARY CODE 8. The Rules and Articles of War for the government of the armies of the United States were derived from those of the English army which were in force when the British troops were in the colonies just prior to the Ameri- can Revolution. 1 1 Many colonists had served with the British troops in the French and Indian wars; some of them were also engaged in the capture of Havana, Cuba, in 1762, and they were, therefore, acquainted with the rules and regulations in force for the government of the English army. The laws governing that army had been derived from articles of war prescribed by the sovereign and a long series of enactments, the first being enacted by Parliament as the ''Mutiny Act " in 1689 and so called until, in 1879, the Articles were merged with it and the name of Army Discipline Act given to the result. This was re-enacted in 1881 as the "Army Act/' which name it still retains with the addition of the year in which it was passed, being re-enacted annually; Parliament thus retaining control over the military establishment. For the full history of the development of the military law of England, see "Summary of Military Law " by Story; "Manual of Military Law of England, War Office, 1894 " ; and "Davis' Military Law." The latter also contains, in the Appendix, "The Prince Rupert Articles," 1673; "The British Articles of 1774 "; "The American Articles of 1776, of May 31, 1786, and of April 10, 1806." 5 6 MILITARY LAW 9. The original American Articles of War were adopted from the British Articles and the laws governing the British army at that time, by resolution of the Continental Congress, June 30, 1775. A new code was substituted September 20. 1776, which was amended in 1786. and by the act of September 29, 1789, those rules previously established were recognized and continued in force under the Constitution. These Articles were rearranged, modified and promulgated by Act of Congress of April 10, 1806, and continued in force with a few modifications until the Act of June 22, 1874, and were later included as Sec. 1342 of the Revised Statutes of the United States of 1878. Various amendments have been made, but there has been no complete revision thereof, and, as amended from time to time, these Articles are still (1906) in force. 1 10. Congress derives the power to enact rules for the government and regulation of the Army from the 8th section of Article I of the Constitution, and in exercise of that power has enacted the Articles of War, Revised Statutes, Sec. 1342. 2 ARMY REGULATIONS, 3 ORDERS, ETC. 11. In addition to the Rules and Articles of War and other statutory enactments of Congress, the military establishment of the United States is governed by regu- lations issued by the President pursuant to or in execution of a statute, or in accordance with acts of Congress grant- 1 The following Articles have been amended or repealed: Art. 17 by Act of July 27, 1892; Art. 60, by Act of March 2, 1901; Art. 62, by Act of June 18, 1898; Art. 72, by Act of July 5, 1884; Art. 80, repealed by Act of June 18, 1898; Art. 83, amended by Act of March 1, 1901; Art. 91, modified by Sec. 4, Act of July 27, 1892; Art. 94, repealed by Act of March 2, 1901; Art. 103, amended by Act of April 11, 1890; Art. 104, amended by Act of July 27, 1892; Art. 110, repealed by Act of June 18, 1898. 2 Carter v. Roberts, 177 U. S. 496-497. 3 See Lieber on Regulations. ARMY REGULATIONS, ORDERS, ETC 7 ing specific authority therefor, and by rules, regulations and orders issued by him as Commander-in-Chief of the armies of the United States, and also by established customs and usages of the service. 12. Army Regulations are administrative rules as dis- tinguished from enactments of Congress. They may be divided into several classes, viz. : a. Those which have received the sanction of Congress. These are really legislative regulations and cannot be changed or altered by executive authority unless the regulations themselves so provide. They are of equal force with any other statute, and can only be changed, modified or repealed by legislative enactment. 6. Those made pursuant to, or in execution of, a statute, which are supplemental thereto and which, in the absence of sufficient legislative regulation, prescribe means for carrying it out. 1 These, if not prohibited by statute, may be modified by the executive authority; 2 but as they have all the force of legal enactments to which they con- form, they cannot be changed or modified except in accordance with the provisions thereof, and until so modi- fied they are as binding on the authority that made them as on others; nor can exceptions to them in individual cases be legally made. c. Those emanating from, and depending on, the con- stitutional authority of the President as Commander- in-Chief of the Army and as Chief Executive, but not made in supplement to some particular statute. The authority which makes them can modify or suspend them as to any case, or class of cases, or generally. The regulations emanating from, and depending on, 1 Examples of regulations of this class are those relating to the exam- ination of enlisted men for commissions, under the Act of Congress, July 30, 1892, and the Executive Order of June 12, 1905, prescribing limits of punishment. 2 United States v. Eliason, 16 Pet. (41 U. S.) 291. 8 MILITARY LAW the constitutional power of the President as Commander- in-Chief and in his duty as Executive, "to take care that the laws be faithfully executed/' are generally promulgated through the Secretary of War, and have all the force of law because they are promulgated by him under the authority of law, and they are binding upon all within the sphere of his legal and constitutional authority. 1 13. Army Regulations when directly approved by Congress have the absolute force of law. When not so approved they have the force of law when founded on the President's constitutional power as Commander-in-Chief of the Army, or when consistent with, and supplementary to, the Acts of Congress in reference to the Army; 2 but they do not control subsequent express provisions of law. 3 They are intended for the government of the officers and enlisted men of the Army and the agents of the War Department, and when not approved by Congress do not bind the Commander-in-Chief nor the head of the War De- partment; they not being regarded as in the military service in the sense of such regulations, but as civil officers. 4 Army Regulations are mandatory, and are intended to govern the conduct of the Army, and all work done under the superintendence of its officers, wherever assigned to duty. 5 14. Departmental Regulations. These are provided for by Sec. 161, Revised Statutes, which authorizes the head of each Department "to prescribe regulations, not incon- sistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution ajid performance of its business, and the custody, use and 1 Gratiot v. U. S., 4 How. (45 U. S.) 117; U. S. v. Eliason, 16 Pet. (41 U. S.) 301; Kurtz v. Moffitt, 115 U. S. 503. 2 Matter of Smith, 23 Ct. Cl. 452; Swaim v. U. S., 165 U. S. 553. 8 Morrison's Case, 13 Ct. Cl. 1. 4 U. S. v. Burns, 12 Wall. (79 U. S.) 246; Matter of Smith, 24 Ct. Cl. 209. 5 Moses v. U. S., 116 Fed. Rep. 526. GENERAL AND SPECIAL ORDERS 9 preservation of the records, papers and property apper- taining to it." The word " Department " as here used means an Execu- tive Department and not a subdivision or bureau of such Department. 15. The Military Academy Regulations are special regu- lations for the government of the cadets at West Point, are issued by the President of the United States, and are as binding as other regulations issued for the Army at large, of which they are legally a part. 1 GENERAL AND SPECIAL ORDERS 1 6. All rules and orders issued by the Secretary of War as the constitutional organ of the President for the ad- ministration of the military establishment are to be re- ceived as the acts of the Executive, and as such are binding upon all within the sphere of his authority. 2 The legal orders of commanders to their subordinates are binding upon those subordinates. The Articles of War (Art. 21) provide that any officer or soldier who, on any pretense whatsoever, disobeys any lawful command of his superior officer shall suffer death, or such other punish- ment as a court-martial may direct. 17. Orders are either written or verbal. Written orders are either general or special. General orders of the War Department are those made public to the Army at large. Special orders affect only certain individuals or cases. 3 1 See Sec. 1094, R. S. 2 U. S. v. Eliason, 16 Pet. (41 U. S.) 291. 3 General or special orders issued from the War Department or Headquarters of the Army may ordinarily be proved by printed official copies duly authenticated by the impressed stamp of The Military Secretary's Office in the usual form, and courts-martial will take judicial notice of such authenticated orders as genuine and correct. "Copies of any records or papers in the War Department or any of its bureaus, if authenticated by the impressed stamp of the bureau or office having custody of the originals, may be admitted in evidence equally with the 10 MILITARY LAW General or special orders issued by. a military com- mander outside the War Department or Headquarters of the Army, such as Division or Department Commanders, commanders of armies, corps, division or brigade in time of war, etc., are promulgated for their commands, in ex- ercise of their authority as representing, within the terri- torial limits of their command, power derived from the Commander-in-Chief, or, in court-martial cases, authority expressly conferred upon them by statute. Such orders must not be in conflict with the statutes or with the orders of superior authority. Verbal orders are legal commands issued by a superior to a subordinate viva voce, and violation thereof, as well as of written orders, may be made the subject of charges under the 21st Article of War. 1 8. Standing orders are in the nature of executive in- structions that are intended to govern those to whom issued for a period of time and until changed or revoked. They generally relate to matters of police or discipline, or local regulations. THE UNWRITTEN LAW) LEGAL PRECEDENTS; DECISIONS OF COURTS 19. The unwritten law consists of the principles, cus- toms and usages of the service derived from immemorial usage in time of peace or war. They are recognized by the 84th Article of War, being therein made applicable to the administration of justice in case of doubt not ex- original thereof, before any court-martial, court of inquiry, or in any administrative matter under the War Department." (G. O. 91, War Department, A. G. O., 1900; Dig. Op. J. A. G. 1312. See Sec. 882, Revised Statutes U. S.) There is no rule of law or practice requiring civil courts to take notice of orders issued by a military commander in the exercise of the authority conferred upon him. (Burke v. Miltenberger, 19 Wall. (86 U. S.) 519, 526.) LEGAL PRECEDENTS, DECISIONS, ETC. 11 plained in those Articles. These customs must, however, have the sanction of long, unquestioned and continuous usage. When this is the case they are to be observed by courts-martial, unless manifestly wrong by reason of being in conflict with a statute or contrary to the precepts of morality and humanity. An example of a custom having the force of law is that of the witness before a court-martial being sworn by the Judge- Advocate; the law not providing who shall administer the oath. 20. " Usages have been established in every department of the government, which have become a kind of common law and regulate the rights and duties of those who act within their respective limits." " Usage does not alter law, but it is evidence of the construction given it." It does not have the force and character of unwritten law until by " immemorial and undisputed" usage it has become a custom of war which is entitled to be received as a part of the common law of the Army, and until it does become so it cannot be pleaded, except in mitigation of punish- ment. Evidence of a local custom is not admissible unless it is shown to be known to both parties. 1 LEGAL PRECEDENTS, DECISIONS OF COURTS, ETC. 21. The decisions of the courts upon questions of doubt- ful interpretation form precedents in like cases and determine the law. They are to be followed in the deter- mination of such questions so long as those decisions or rulings of the courts, are not reversed. 22. " Where a court has jurisdiction, it has a right to decide any question which occurs in the cause; and whether its decisions be correct or otherwise, its judg- ments, until reversed, are regarded as binding in every other court. But if it act without authority, its judgments 1 Chateaugay Iron Co v. Blake, 144 U. S. 476. 12 MILITARY LAW and orders are nullities; they are not voidable but simply void" 1 Stare Decisis. - - The doctrine of stare decisis to abide by precedent or to adhere to decided cases pre- vails in civil courts with respect to decisions of other courts made directly upon the point in issue. Though the duly approved decisions of courts-martial are not binding upon other courts-martial, they should be well considered and, as a rule, followed. 23. The decisions and opinions of the heads of depart- ments of government in matters which properly come be- fore them relating to the military establishment, though not in themselves law, are intended to give interpretation of the law and, as an aid in forming judgment, it is gen- erally safer and better to adopt them. 24. Opinions of the Attorney-General. While Attor- neys-General have never claimed for their opinions the force of law, it has always been regarded as the proper practice to follow their guidance; and Congress, while never directly legislating upon this point, seems to con- template that their opinions are to be given practical effect and should be followed Such opinions are, there- fore, binding upon the Army when so directed in orders of the War Department. 25. Opinions of the Judge-Advocate-General. The opinions of the Judge- Advocate-General upon questions of military law, approved by the Secretary of War, are bind- ing upon the military establishment until overruled or reversed. 2 1 EUiott v. Peirsol, 1 Pet. (26 U. S.) 328. 2 See Deming v. McClaughry, 113 Fed. Rep. 641. CHAPTER III MILITARY TRIBUNALS 26. The tribunals for the trial of military persons and offenses, under the laws for the government of the armies of the United States, are as follows: 1st. The statutory tribunals, viz. : 1. General Courts-martial. 2. Regimental Courts-martial. 3. Garrison Courts-martial. 4. Summary Courts. 2d. The Military Commission, a tribunal hereafter ex- plained as belonging to the laws of war, which is recognized by Sec. 1343, Revised Statutes United States, as a tribunal for the trial of spies. 1 These courts are not a part of the judicial system of the United States, but are executive agencies and have juris- diction only within the limits prescribed by law. Being courts of special jurisdiction, the fact that they have juris- diction must appear in every case, because without it their acts are wholly void. 27. Not Part of the Judicial System of the United States; Their Decisions not Subject to Appeal to Civil Courts. Courts-martial not being part of the judicial system of the United States, no appeal can be taken from their judgments to any civil court, and their acts can only 1 See post, par. 32. 13 14 MILITARY LAW be reviewed and modified by the legal reviewing authority, or by the President of the United States, and in the man- ner prescribed by law. They are not " courts of record" within the legal mean- ing of that term, their existence being temporary and de- rived from orders issued by commanders authorized to convene and to dissolve them at will. They are, however, lawful tribunals with plenary jurisdiction over military offenses and with authority to finally determine any case over which they have jurisdiction, as have civil courts over offenses within their cognizance, and their proceed- ings, when confirmed as provided by law, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdic-' tion of the person and subject-matter, whether the statutory rules prescribed for exercise of jurisdiction have been complied with, and whether, though having such jurisdic- tion, it had exceeded its powers in the sentence pronounced; and in such cases the review may be had by habeas corpus proceedings in the United States courts. 1 28. Their jurisdiction is over criminal offenses alone and does not extend to civil cases. They also take into con- sideration matters that never come before a civil court because they act upon questions affecting the honor and discipline of the Army, and they partake of the character of a " court of honor," as when they try an officer charged with " conduct unbecoming an officer and a gentleman," or an officer or enlisted man for "conduct to the prejudice of good order and military discipline." 1 In re Davison, 21 Fed. Rep. 618; In re McVey, 23 Fed. Rep. 878; In re Vidal, 179 U. S. 126; Carter v. Roberts, 177 U. S. 496; Carter v. McClaughry, 183 U. S. 365; McClaughry v. Deming, 186 U. S. 69. The judgments of the court-martial may, however, be brought in question in other courts if an illegal punishment is alleged to have been awarded, as in an action in a State court against the reviewing officer, or a member of the court, sued therein for damages incurred by reason of the alleged illegal punishment. MILITARY TRIBUNALS 15 29. The functions of a court-martial are not those of a criminal court in which the prosecution is subject to tech- nical objections such as are sometimes used to interfere with justice or favor a criminal, but its purpose is to ascer- tain all the facts, to get at the whole truth and to make its judgments according thereto, avoiding the strict techni- calities available in civil courts, and after as full an ex- amination as possible, to decide the case according to the facts established by evidence, and according to the pro- visions 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 their conscience, the best of their understanding, and the custom of war in like cases/ 7 1 30. The court-martial not only determines questions of fact, but is also called upon to decide questions of law. Where the court-martial has acted without jurisdiction its acts and judgments are illegal and void, 2 and for any illegal punishment awarded by it, and executed, the mem- bers, and the officer who executes the sentence, are liable for damages in a civil suit. 3 Where, however, the court acts under proper orders and in good faith, and the pro- ceedings have been duly approved, actual damages awarded by a jury will be nominal. 4 But having jurisdiction of the case, its judgments, when approved as required, rest on the same basis and are sur- rounded by the same considerations which give conclu- siveness to the judgments of other legal tribunals, as well the lowest as the highest, under like circumstances. The 1 84th Article of War. 2 Barrett v. Hopkins 7 Fed. Rep. 312; Dynes v. Hoover, 20 How. (61 U. S.) 65. 8 Ives, p. 35; Simmons on Courts-martial, 193, Sec. 459; Winthrop, Vol. 2, p. 126 et seq 4 Wmthrop, Vol.2 p. 127. 16 MILITARY LAW exercise of discretion, within authorized limits, cannot be assigned for error and made the subject of review. 1 31. Jurisdiction in Certain Cases. By entrance into the military service the citizen becomes a soldier. His relations to the state and the public are changed. He acquires a new status, with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged. 2 He surrenders certain of his personal rights as a citizen and adds to his personal responsibility by also becoming subject to military law, so that by the same act he may violate the laws of both jurisdictions, military and civil, and be punished by each. The civil courts punish for breach of the civil law, while the military courts may pun- ish the same act as a violation of the Rules and Articles of War. His conviction or acquittal by the courts of one system does not relieve him from responsibility to the courts of the other, and he cannot plead conviction or acquittal by the courts of one in bar of jurisdiction of the courts of the other. In this sense only, the jurisdiction of the military and civil courts is concurrent; that one may first try him which first assumes jurisdiction over him, for the offense against the law which it administers. The Fifth Amendment to the Constitution, providing that "no person shall be held for a capital, or otherwise in- famous, crime, unless on a presentment or indictment of a grand jury," excepts " cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger." A soldier therefore gives up some of the constitutional rights possessed by the citizen, 3 in fact, he forfeits such of his civil rights as interfere with the duties and obligations acquired by his new status, as pre- 1 Ex parte Reed, 100 U. S. 23. 2 In re Grimley, 137 U. S. 147-152. 3 See U. S. v. Clark, 31 Fed. Rep. 713. MILITARY TRIBUNALS 17 scribed by the laws established for the government and regulation of the Army; but he retains all others the ex- ercise of which is not inconsistent with military govern- ment and discipline, for the reason that the soldier in giving up rights of citizenship is not required to give up more than is absolutely necessary to the performance of his duties and obligations as a soldier. 32. Military Commissions. Military commissions de- rive their authority primarily and mainly from the laws of war, and are not statutory tribunals, though recognized as legal and appropriate for trial of spies (Sec. 1343, Re- vised Statutes). They are organized under the laws of war and under martial law, as a military necessity, for cases involving persons and offenses outside the powers and duties conferred upon the statutory tribunals and there- fore beyond the jurisdiction of courts provided for in the Rules and Articles of War. 1 1 See Chapter XXX, post, par. 682 et seq. &JJL^c ^ * Aj^ xrUsA. ( ^ -"I CHAPTER IV GENERAL COURTS-MARTIAL 33. The power to convene general courts-martial is con- ferred upon certain officers by the 72d and 73d Articles of War; the former conferring a general power applicable to all times, and the latter relating to "time of war"; and it is also granted to the Superintendent of the U. S. Mili- tary Academy by Sec. 1326, -Revised Statutes of the United States. 34. In Time of Peace or War. The 72d Article of War. Article 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 shall be laid before the President, for his approval or orders in the case. 1 Under this article any general officer commanding an army, a territorial division or a department, or a colonel commanding a separate department, may convene a general court-martial whenever charges are made and he deems that the circumstances demand it, and this power he has in time of war as well as in peace, wherever the troops may be, at home or abroad. The grant of power is not given 1 Act July 5, 1884; see Article 72, Chapter XXXI, post, par. 779. 18 GENERAL COURTS-MARTIAL 19 to, and cannot be exercised by, any officer of lower grade than colonel, and only by a colonel when commanding a separate department, either by assignment to such com- mand by the President of the United States, directly, or when he succeeds to such command under the provisions of Army Regulations, which provide that, in the event of the death or disability or temporary absence of the permanent commander of a territorial division or depart- ment from the limits of his command, the senior line officer present and on duty therein will exercise the com- mand of the division or department, unless otherwise ordered, until relieved by proper authority. 1 35. The commander of a division who is also duly acting as commander of a department in the division, in the absence of the regular department commander, is author- ized to convene general courts-martial under the provisions of this article. 2 36. The President of the United States, in virtue of his power as constitutional Commander-in-Chief of the Army of the United States, has power to convene such courts and to review their proceedings, and it is his duty to do so, under the provisions of this article, when any commander authorized by it to convene a court-martial "is the accuser or prosecutor of any officer under his command," and also in cases where an officer having been dismissed by him in time of war makes application for trial as provided by Sec. 1230, Revised Statutes United States. It is to be noted that, according to the above article, the commander must be either the accuser or prosecutor of an "officer"- under his command; the prohibition does not apply to other persons. In all such cases the proceedings and sentence are sent direct to the Secretary of War to be laid before the Presi- dent for his action thereon. 1 A. R. 193. 2 Dig. Op. J. A. G. 190. 20 MILITARY LAW 37. Commander of Army, etc. The term "general officer commanding an army" includes not only generals commanding separate armies, designated as such, but the lieutenant-general or general officer who may be assigned by the President to command the Army of the United States. It also includes corps commanders in command of a separate army corps as being, in this respect, similarly situated as commanding "a separate army." It has been decided by the Secretary of War that under the 107th Article of War a corps commander is held to be a com- mander of an army in the field when his corps is not a constituent part of a larger body, and he may convene a court-martial under this article and confirm sentences of dismissal of officers. 1 38. "A corps commander may also convene such court where the division or separate brigade commander is the accuser or prosecutor, by authority of the Act of December 24, 1861 " (now 73d Article of War). " But sound prin- ciples of public policy require that only the highest military authority in any army should be vested with the final power of the confirmation and execution of sentences of death and dismissal, and the Act of December 24, 1861, has never been construed as conferring this power upon a corps commander when his command is not a separate and distinct army, but only, as in the case of a corps of the Army of the Potomac, a constituent part of a larger body." 2 39. The power to convene courts-martial is a personal power as conferred by the statute and cannot be delegated to an inferior or to a staff officer ; a staff officer, therefore, cannot, in the absence of the proper commander, act for him by convening courts-martial in his name, nor act upon proceedings of courts-martial under like circumstances. 1 Cir. 30, War Department, A. G. O., August 9, 1898. 2 Dig. Op. J. A. G. 191. See Cir. 30, War Department, A. G. O., August 9, 1898. GENERAL COURTS-MARTIAL 21 The officers designated by the Articles are the only ones to decide whether a court-martial shall be ordered in any case or not, and their decision is final. An officer or soldier cannot demand that charges submitted by him shall be brought to trial-, nor can any person against whom charges have been made demand trial except in those cases specially provided by law, as by the 30th Article of War, and Sec. 1230, Revised Statutes. 1 40. The authority of an officer authorized to convene general courts-martial extends to the convening of such courts for the trial of officers and soldiers under his command. "It is complete and exclusive within his jurisdiction, and it is within his jurisdiction to determine, in each instance, whether a court shall be ordered at all, or, if ordered, when and where (within his command) it shall be convened." 2 Article 72 makes the commanders named in the article judges, in general, of the expediency of ordering such courts in particular instances. 3 41. In Time of War Only. The 73d Article of War. Article 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. The power to convene general courts-martial is, by this article, extended, in time of war, to the commander of a division or a separate brigade, but in case such com- mander is the accuser or prosecutor of "any person" under his command the court must be appointed by the next higher commander. This article differs in terms, 1 Davis' Military Law, p. 19; Dig. Op. J. A. G. 184. 2 Winthrop's Abr., 3d Ed., p. 25. 3 Davis' Military Law, p. 19. MILITARY LAW as to the commander being the " accuser or prosecutor/' from Article 72, in its application to "any person/' whilst Article 72 is limited to "any officer." 42. To constitute a separate brigade under this article it rnust be actually such, acting separately or as a distinct command, as an organized brigade detached from and unconnected with any division, or be designated in orders as a "separate brigade." 1 The fact that it is a separate brigade should appear in the proceedings. The determination as to whether a condition of war exists, is within the exclusive jurisdiction of the political department of the government, and the courts take judi- cial notice of such determination and are bound thereby, 2 43. Accuser or Prosecutor. An "accuser" is one who makes the accusation. A "prosecutor," in the general meaning of the term, is one who institutes and carries on proceedings against, or prosecutes, another for a crime in the name of the government. The word as used in Article 72 and Article 73 is not limited to this meaning, but is intended to designate the person who, having authority to convene a general court- martial, enters into the case with a hostile animus and an intent to secure the conviction and punishment of the accused, and whose hostile animus prevents impartial action. The question as to whether a commander is the "accuser" or "prosecutor" under either of the foregoing articles must be determined by his animus in the case. If he has simply directed the charges to be preferred as a matter of, and in line with, his official duty, he cannot be held to have such animus as would constitute him an "accuser" or "prosecutor." But if he has any personal interest in the subject of the charges, or has shown mani- 1 Dig. Op. J. A. G. 192 et seq. 2 Hamilton v. McClaughry, 136 Fed. Rep. 445, 449. GENERAL COURTS-MARTIAL 23 fest hostility toward the accused, objection may be made to the legal constitution of the court, and the accused is entitled to introduce evidence of the fact before the court, or in an appeal to higher authority. The provision of this Article (and of Article 72), that when the convening commander is the " accuser or prose- cutor" the court shall be convened by the next higher commander (or by the President under Article 72), being expressly restricted to general courts, has no application to regimental or garrison courts. The same principle, however, should properly be applied to proceedings before these courts, if it can be done without serious em- barrassment to the service. 1 44. Superintendent of the Military Academy. The Superintendent of the Military Academy has power to convene' general courts-martial for the trial of cadets and to execute the sentences of such courts, except the sentences of suspension and dismission, subject to the same limitations and conditions now existing as to other courts-martial. 2 The general courts-martial herein authorized are, in their organization, composition, and method of conducting business, subject to the same limitations and conditions existing as to other courts-martial. Under the limitations of this section, sentence of suspension or dismission, though approved by the Superintendent, cannot be car- ried into effect without the order of the President of the United States, usually given through the Secretary of War. 45. Any officer competent to appoint a court-martial may appoint a judge-advocate for the same. 3 1 Dig. Op. J. A. G. 189. 2 See sec. 1326, Revised Statutes United States. 8 Article 74. CHAPTER V COMPOSITION OF GENERAL COURTS-MARTIAL 46. Composed of Officers. " 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 in- jury to the service." l If there are less than five the court is without a quorum and cannot proceed with the trial of any case. It may, however, adjourn until the convening officer can be informed, and if five are present and one of them is challenged the remaining four may act upon the challenge. Article 75, quoted above, is merely directory to the officer appointing the court, and his de- cision as to the number that can be convened without manifest injury to the service, being a matter left to his sound discretion, must be conclusive ; 2 provided it does not fall below the minimum number of five. 47. The word " officer," as used in Sec. 1342, Revised Statutes, which section contains the Articles of War, is understood to designate " commissioned officers" only. This is held to include officers commissioned by the Presi- dent during the recess of the Senate, though their nomina- tion may not yet have been confirmed. There is one excep- tion made to this meaning of the word " officer," by its use in the 24th Article of War, giving power to "all officers, of 1 Article 75. 2 Martin v. Mott, 12 Wheat. (25 U. S.) 19; Swaim v. U. S., 165 U. S. 559. 24 COMPOSITION OF GENERAL COURTS-MARTIAL 25 what condition soever/' to "part and quell all quar- rels, frays and disorders" which, in this instance, has been held to include non-commissioned officers, as well as those commissioned. But whenever a junior places a senior in arrest, under such circumstances, he must immediately report the fact to the commanding officer. 48. Details of officers as members of general courts- martial have heretofore been limited to officers on the active list of the Army, or on duty with forces in active service, but by an enactment of April 23, 1904, the Secre- tary of War may, with their consent, assign retired officers of the Army to active duty in recruiting, for service with the organized militia of the several States and Terri- tories, as military attaches, upon courts-martial, courts of inquiry, and boards, and to staff duties not involving service with troops; and such officers while so assigned will receive full pay and allowance of their respective grades. 1 Professors of the U. S. Military Academy, having been given actual rank in the Army by Act of June 28, 1902, are eligible for detail as members of courts-martial; but the character of their duties is such that it would be inexpedient to so detail them. 49. It is provided by the 79th Article of War that no officer, when it can be avoided, shall be tried by officers inferior to him in rank. It is, however, within the power of the convening authority to determine the question of rank, as well as the number of members within the pre- scribed limits, and his action is conclusive. 2 The fact that a member of a court is junior in rank to the accused does not, of itself, constitute a ground for his excuse from serving as a member of the court if challenged; it must be shown that the junior has an immediate and direct 1 Act April 23, 1904. 2 Dig. Op. J. A. G. 210-211; Mullan v. U. S., 23 Ct. Cl. 34; Id., 140 U. S. 240, 245; Swaim v. U. S,, 165 U. S. 599 560. 26 MILITARY LAW interest in the result of the trial, such as that the convic- tion and dismissal of the accused would advance him to the next higher grade. 50. Eligibility of Officers in Certain Cases. The general laws and rules given above as to the composition of courts-martial apply to all cases arising in the regular forces; but there are sometimes in the service of the United States " other forces/ 7 and it is provided by the 77th Article of War that " officers of the Regular Army shall not be competent to sit on courts-martial to try officers and soldiers of other forces except as provided in Article 78." This Article (78) provides that " 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." This constitutes the only exception to the rule contained in Article 77. FOR TRIAL OF VOLUNTEERS OR MILITIA l 51. Volunteers and Militia are "other forces" within the meaning of the 77th Article of War, and a court constituted with one or more regular officers as members thereof for the trial of a volunteer would be without jurisdiction and its judgment void. 2 This, therefore, excludes officers of the Regular Army from sitting upon courts-martial for the trial of Volunteers or Militia; but officers of either Militia or Volunteers are not excluded from sitting upon courts for the trial of of- ficers or soldiers of the Regular Army; and militia officers may sit upon courts for trial of officers or soldiers of Regu- 1 See Articles 123 and 124, Chapter XXXI, post, par. 830, 831. 2 Deming v. McClaughry, 113 Fed. Rep. 639, 640; McClaughry v. Deming, 186 U. S. 49. COMPOSITION OF GENERAL COURTS-MARTIAL 27 lars or Volunteers; but courts for the trial of officers or men of the Militia are, by law, to be composed of militia officers only. 1 1 Act of January 21, 1903. In view of the wording of the Act of Congress, approved April 22, 1898, which declares that the Army of the United States in time of war shall consist of both the Regular Army and the Volunteer Army, it was at one time held ''that such Volunteer Army is not with respect to the Regular Army other forces ' within the meaning of this Article, and that therefore officers of the Regular Army are competent to sit on courts-martial for the trial of officers or soldiers of such Volunteer Army." (Dig. Op. J. A. G. 209.) But the matter coming before the U. S. courts by writ of habeas corpus, it was held by the U. S. Circuit Court that the words "other forces " include the volunteer forces, and that officers of the Regular Army are incompetent, under said Article, to try officers or soldiers of the volunteer forces. This decision was sustained by the Supreme Court of the United States in the case of McClaughry v. Deming. 186 U. S. 49. The Court of Claims in a recent case (Brown's Case) has held that a court-martial was without jurisdiction, because the president of the court, although he held a volunteer commission, was a regular officer. But this being opposed to established precedent, a motion for a new trial has been made and the question is still pending. CHAPTER VI JURISDICTION OF COURTS-MARTIAL 52. General Courts-martial. The jurisdiction of a court-martial is its legal power to try and determine cases legally referred to it and, in case of a finding of guilty, to award the punishment for the offense within its prescribed limits. Being courts of special and limited jurisdiction the'r organization, powers and mode of procedure must con- form to all the statutory provisions relating thereto. Should the court be illegally constituted or exceed its jurisdiction or powers by failing to comply with the requirements of law, its acts are void and the members of the court may be held liable in damages by the aggrieved party. If in its proceedings or sentence it transcends the limit of its jurisdiction, the members of the court and the officer who executes the sentence are trespassers, and as such answerable to the party injured in damages in the civil courts. 1 But when acting within its juris- diction errors or mistakes made are not subject to review collaterally, or to be redressed by habeas corpus. 2 It is therefore necessary that the question of jurisdiction be ascertained before trial begins or sentence is given, and this is determined by ascertaining that the court is legally 1 3 Greenleaf, Sec. 470; Ives, p. 35; Dynes v. Hoover, 20 How. (61 U. S.) 65. 2 Carter v. Roberts, 99 Fed. Rep. 948; Dynes v. Hoover, 20 How. (61 U. S.) 65; Carter v. McClaughry, 183 U. S. 365; McClaughry v. Deming, 186 U. S. 69. 28 JURISDICTION OF COURTS-MARTIAL. 29 organized by competent authority, that the persons brought before it for trial are amenable to military law, and that the offenses committed are within its jurisdiction. 1 53. Territorial Jurisdiction. These courts being in- stituted under authority of military law, there is no territorial limit to their jurisdiction; it accompanies the military establishment wherever it goes. 54. Jurisdiction as to Persons and Offenses. The jurisdiction of courts-martial extends to all persons belonging to the military establishment at all times and in all places wherever the Army, or any part thereof, may be serving, whether within or without the limits of the United States. 2 It extends also to all officers and sol- diers of "other forces" as the Marines detached for service with the Army, Volunteers or Militia mustered into the service of the United States and "all retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers" (Article 63), and, in time of war, to persons relieving or knowingly harboring or protecting an enemy (Article 45) ; or holding correspondence with or giving intelligence to the enemy (Article 46), and to spies (Sec. 1343, Revised Statutes United States). The jurisdiction of courts-martial is purely criminal; they cannot take cognizance of civil matters, and, being statutory courts, the crimes of which they do take cogni- zance must be covered by the statutes conferring juris- diction upon them, and unless such jurisdiction is given the case cannot be tried by such court. When the offense is not specifically named in the Articles of War, or other statutes, the question as to whether particular charges, in violation of the 61st or 62d Articles of War, amount to offenses covered by those articles 1 See Runkle v. U. S., 122 U. S. 543, 545. 2 See Art. 63 and Art. 64, Chapter XXXI, post, par. 770, 771. 30 MILITARY LAW is a matter for the court-martial to determine in the proper exercise of its discretion within its jurisdiction, and its decision is not subject to review by the civil courts. 55. General courts-martial have exclusive jurisdiction over officers (Article 83); cadets (Sec. 1326, Revised Stat- utes); candidates for promotion (Act July 30, 1892) j 1 and capital cases (Article 83) and, in time of war, insurrection, or rebellion, offenses named in the 58th Article of War ; and con- current jurisdiction with the inferior courts over all cases of enlisted men (other than candidates for promotion), general prisoners, and, in time of war, retainers to the camp, and persons, though not enlisted soldiers, serving with the Army in the field (Article 63), and of all offenses of which the in- ferior courts may take cognizance, when the limit of punish- ment is in excess of the punishing power of such courts. 2 56. The jurisdiction of courts-martial is not exclusive, however, as to acts which, in addition to being offenses against military law, also constitute offenses against the civil law, of which civil courts may take cognizance. In case of such double amenability the military usually gives precedence to the civil court, but if its jurisdiction is first fully attached and an officer or soldier has been duly and legally arraigned before a court-martial, its jurisdiction cannot be set aside by the process of a State ^ court. But an acquittal by a civil tribunal for an offense n^ against the civil law is no bar to trial by court-martial for an offense against military law, nor is a trial by a military court a bar to trial by the civil court. A person under military jurisdiction acquitted of murder by a civil tribunal cannot plead that acquittal in bar of trial by court-martial for conduct to the prejudice of good order, etc., involved in the same act. 3 1 See G. O. 79, H. Q. A., A. G. O., 1903. 2 Court-martial Manual, pp. 15, 16. 3 In re Stubbs, 133 Fed. Rep. 1012: Court-martial Manual, p. 14; Dig. Op. J. A. G. 1036. JURISDICTION OF COURTS-MARTIAL. 31 57. The jurisdiction of a court-martial cannot be inferred; its authority is statutory and the statute under which it proceeds must be followed throughout. The facts necessary to show its jurisdiction and that its sentence was conformable to law must be stated positively, and it is not enough that they may be inferred argumentatively. 1 Consent cannot confer jurisdiction upon an illegally con- stituted court. 2 In order to give effect to the judgment of a court-martial it must appear affirmatively that the court was legally constituted, that it had jurisdiction, and that all the statutory requirements governing its proceedings had been complied with. 3 58. Cadets at the U. S. Military Academy are a part of the Army of the United States and are subject to trial by court-martial. 4 59. The trial of cadets by the summary court would not be authorized; such courts being established for the trial of enlisted men only. Cadets occupy a status of their own in the Army not identical with that of either a com- missioned officer or an enlisted man. They are officers of the military establishment whose appointments are evi- denced by warrants rather than by formal commissions. 60. In Time of War, Insurrection, or Rebellion, the jurisdiction of general courts-martial extends to larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding, by shoot- ing or stabbing, with an intent to commit murder, rape, or an assault and battery with intent to commit rape, when committed by persons in the military service of the United States, and the punishment must not be less than that provided, for the like offense, by the laws of the State, 1 McClaughry v. Deming, 186 U. S. 63. 2 Id. 66. 3 Runkle v. U. S., 122 U. S. 543, 545; McClaughry v. Deming, 186 4 See Sec. 1326, Revised Statutes; Act February 2, 1901. 32 MILITARY LAW Territory, or District in which such offense may have been committed. 1 61. The jurisdiction of the general court-martial also extends at all times to minor included offenses in any charge laid before it; if the charge is murder the accused may be found not guilty of murder, but of the lesser in- cluded offense of manslaughter; or in a charge of deser- tion the finding may be not guilty of desertion, but guilty of absence without leave. 62. The judgment of a court-martial rendered upon sub- jects within its jurisdiction is as legal and valid as those of any other tribunal, nor is such judgment subject to be appealed from, or set aside, or reviewed by the courts of any State, or of the United States, by writ of habeas corpus or otherwise. 2 63. Jurisdiction being had, members of military tri- bunals are not liable for their action unless it can be shown that they acted maliciously. Such tribunals unite in themselves the functions of the judge and jury, decid- ing questions of law, when necessary, as w r ell as questions of fact. But where the court was without jurisdiction, this question, and also the legality of the sentence, may be determined and may be reached by a writ of habeas corpus, and its proceedings set aside as illegal and void. 3 And where a prisoner is alleged to be illegally restrained as a consequence of the action of such a court he may be brought before a Federal civil court by writ of habeas corpus, 1 Article 58; see post, par. 765. 2 Davis' Military Law, p. 15; Dig. Op. J. A. G. 992, and references; Deming v. McClaughry, 113 Fed. Rep. 639; McClaughry v. Deming, 186 U. S. 49; Johnson v. Sayre, 158 U. S. 118; Dynes v. Hoover 20 How. (61 U. S.) 65, 82; Ex parte Reed, 100 U. S. 13; Ex parte Mason 105 U. S. 696; Smith v. Whitney, 116 U. S. 167, 177, 179; In re Coy 127 U. S. 731; U. S. v. Pridgen, 153 U. S. 49; Carter v. McClaughry 183 U. S. 365. 3 Carter v. Roberts, 99 Fed. Rep. 948; Id., 177 U. S. 496-7; Deming v. McClaughry, 113 Fed. Rep. 639; McClaughrj v. Deming, 186 U. S. 49. JURISDICTION OF COURTS-MARTIAL 33 and if the court-martial was without jurisdiction the prisoner may be discharged. The writ of habeas corpus cannot, however, be made to serve the purpose of a Writ of error 1 the function of which is to review and correct an error of law committed in the proceedings. 64. Jurisdiction over Persons after Expiration of Service. Under ordinary circumstances separation from the military service ends all responsibility for offenses committed against military law; even on re-enlistment the soldier will not be liable for an offense committed during a previous enlistment; the discharge cancels all previous military obligations. Separation from the service returns him to his status of a civilian; but he still remains subject to military jurisdiction in the following cases: a. The 60th Article of War, which provides that "if any per- son, being guilty of any of the offenses aforesaid (fraudulent claims, embezzlement, etc., named in the Article), 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-mar- tial, in the same manner and to the same extent as if he had not received such discharge nor been dismissed." This provision of law is, however, subject to the statute of limitations, 103d Article of War. b. Under Sec. 5 of the Act of June 18, 1898, it is pro- vided "that soldiers sentenced by court-martial to dis- honorable discharge and confinement shall, until discharged from such confinement, remain subject to the Articles of War and other laws relating to the administration of military justice." This provision is intended for the control and government of general prisoners, men who have received their discharge and are under sentence of confinement in a military prison or post guard-house. 1 In re Coy, 127 U. S. 731; McClaughry v. Deming, 186 U. S. 69: Carter v. McClaughry, 183 U. S. 365. 34 MILITARY LAW 65. In cases also where jurisdiction has been taken by arrest or confinement of an officer or soldier before the expiration of his term of service or separation therefrom^ with a view to his trial, such jurisdiction will attach and continue, even though the term of service for which he has been enlisted expires but his discharge has not been given him. The person is then still held to a performance of his duty, not as a soldier under his enlistment contract, but in his status as an offender, subject to the jurisdiction of the court-martial. The fact that the term for which he enlisted has expired will not oust the jurisdiction of the court, but trial may be had and judgment and sentence be awarded and executed. This rule also applies to the case where jurisdiction has been taken over a minor charged with desertion, even though he enlisted unlawfully without the consent of his parent or guardian. 1 In cases of desertion in time of peace and not in the face of the enemy, it is provided by the 103d Article of War that the statute of limitation shall not begin to run until the end of the term for which said person was mus- tered into the service, so that although the term of service for which he was enlisted has expired, a court-martial will have jurisdiction for trial of the deserter at any time within two years thereafter. 66. Under the provisions of Sec. 1230, Revised Statutes, an officer who, in time of war, has been dismissed by order of the President is entitled to a trial by a general court-martial upon application in writing therefor, and the court-martial will have jurisdiction of the case. But the dropping of an officer for desertion after three months' absence from duty without leave, under Sec. 1229, Revised Statutes, separates him summarily from the service 1 In re Carver, 142 Fed. Rep. 623. JURISDICTION OF COURTS-MARTIAL 35 and he cannot afterward be arrested and tried by court- martial. 1 A court-martial has no jurisdiction over an officer after he has left the service, 2 except under the 60th Article of War. Nor can the officer dropped for desertion demand trial by general court-martial under Sec. 1230, Revised Statutes. 3 67. Conditions Necessary to Show Jurisdiction. The jurisdiction of every court-martial, and hence the validity of each of its judgments, is conditioned upon these in- dispensable requisites : a. That it was convened by an officer empowered by the statutes to call it. 6. That the officers whom he commanded to sit upon it were of those whom he was authorized by the Articles of War to detail for that purpose. c. That the court thus constituted was invested by the Acts of Congress with power to try the person and the offense charged. d. That the statutory rules prescribed for the exercise of jurisdiction have been complied with. e. That the sentence was in accordance with the law. The absence of any of these indispensable conditions renders the judgment and sentence of a court-martial cor am non judice (without jurisdiction), and absolutely void, because such a judgment and sentence is rendered without authority of law and without jurisdiction. 4 68. Contempts of Court. Courts-martial have power given them to preserve order in the court, and enforce respect, by statutory provision in the Articles of War, as follows: Article 86. A court-martial may punish, at discretion, any person who uses any menacing words, signs, or gestures 1 Ives, p. 48; G. C. M. O. 16 War Department, August 30, 1871. 2 24 Op. Attorney-General 570. 8 17 Op. Attorney-General 13; Newton v. U. S.. 18 Ct. Cl. 435. 4 Deming v. McClaughry, 113 Fed. Rep. 650. 36 MILITARY LAW in its presence, or who disturbs its proceedings by any riot or disorder. Contempts are Either Direct or Indirect. Direct con- tempt consists in noisy or disorderly conduct in the presence of the court or so near it as to interrupt its proceedings, or in improper language tending to interfere with the proper administration of justice. The 86th Article of War is authority for the punishment of direct contempts and refers distinctly to "any person." This embraces the judge-advocate, the accused, a military witness, the prosecutor, counsel, clerk, guard, or any officer or soldier who may be present as a spectator. The rank of the person is immaterial. 1 It is not confined in its terms to military persons alone, but may be applied to civilians belonging to the military establishment and subject to its laws. 2 Military persons guilty of contempt may be pun- ished summarily, or be placed in arrest, and have charges preferred against them. 3 Courts-martial have no power apart from this statute to punish civilian witnesses for contempt, and therefore could not punish a witness for failure to obey a subpoena (though his presence might be enforced by an attachment), nor for his refusal to testify after being brought before the court. Provision has, however, been made by recent enactment of Congress for punishment in such cases by the U. S. District Court 4 for the State, Territory, or District in which such general court-martial is held. As courts-martial have no appointed means of enforcing their mandates, they cannot exercise the power of punish- ment of contempt against civilians, though they might ' Winthrop Voi 1 p 431 'Authorities differ on the question as to whether the words ''any person," in the foregoing article, include ' civilians " As courts' martial have no inherent power to punish for contempt it is believed that these words should be construed to mean 'any person subject io military 'jurisdiction," and as not applying to others not subject thereto * Ives, p 146; Davis' Military Law, p. 140. * Act March 2 1901. JURISDICTION OF COURTS-MARTIAL 37 cause the arrest of such persons and their removal from the court-room, and, if necessary, from the military reservation in an aggravated case, through request therefor to the commanding officer at the post where the court is sitting, or to the convening authority. The command- ing officer will execute the request of the court with the same propriety and legality as he executes the arrest of the accused under charges, furnishes the court with a guard, or performs any other ministerial function in aid of its proceedings, 1 and will act under the same authority as he would in the removal of any other person guilty of disorderly conduct within the territorial jurisdiction under his command. If the contempt of a civilian amounts to a breach of the peace, the court may take steps to have him brought before the proper civil tribunal therefor. The contempts rendered punishable by this Article (86) are of a public and self-evident kind, not depending upon any interpretation of law admitting of explanation, or requiring further investigation. 2 69. Members of the Court are not punishable for con- tempt, but any disorderly conduct should be reported to the convening authority, and they should be proceeded against as for any other offense against good order and military discipline. 3 70. Method of Procedure in Cases of Direct Con- tempt. The procedure in case of direct contempt of court is summary in character. The court suspends its proceedings in the case before it and arraigns the person in contempt, giving him an opportunity to explain; if it finds his explanation insufficient or inadequate it at once awards the punishment, which becomes immediately effective, not needing the approval of the convening authority to make it valid, or to authorize the execution 1 Winthrop's Abr., 3d Ed. p. 118; see Davis' Military Law, p. 140. 'Ives.p. 146. 3 See A. R, 954. 38 MILITARY LAW of its sentence. Instead of such summary proceeding the court may cause charges to be drawn under the 62d Article of War against a person who is in the military service, and he may be brought to trial upon that charge before another court. Each court is the exclusive judge of contempts before it. 71. Indirect Contempt. An indirect or constructive contempt is one offered elsewhere than in the presence of the court, and which tends to degrade or make impotent the authority of the court or in some manner to impede or embarrass the due administration of justice. 1 72. The refusal of a witness to obey the subpoena and come before the court-martial is an indirect contempt of court. In such cases the law, Sec. 1202, Revised Statutes, United States, gives the judge-advocate of a court-martial power to compel, by means of a writ of attachment, the attendance of witnesses within the State, Territory, or District in which the court is sitting; but, until the Act of March 2, 1901, it could not compel a witness to testify when brought before it. It is now provided, however, that "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, wilfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States, and it shall be the duty of the U. S. district attorney, on the certification of the facts to him by the general court-martial, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shall be a fine of not more 1 American and English Encyclopaedia of Law, Vol. 7, p. 28. JURISDICTION OF COURTS-MARTIAL 39 than five hundred dollars or imprisonment not to exceed six months, or both, at the discretion of the court: Pro- vided, 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 provided for witnesses in the U. S. district court for said State, Territory, or Dis- trict, shall be duly paid or tendered said witness." 1 73. The proper step to secure this punishment, as now provided by law, is for the court to make a certification that the person (designating him by name and place of residence, which must be in the State, Territory, or Dis- trict where the court is sitting), after having been duly subpoenaed and tendered his fees, as provided by law, has wilfully neglected or refused to appear, or refuses to qualify as a witness, or to testify, or to produce docu- mentary evidence which he has been called upon to pro- duce. This certification should be authenticated by the signatures of the president and judge-advocate of the court-martial and be placed in the hands of the U. S. district attorney for the district in which such court is held, whose duty it will be under the law to file an infor- mation against and prosecute the person so offending. The district attorney must also be furnished with a complete statement of the case, which should include a copy of the order convening the court, the name and rank of the person to be tried, with a statement of the charges against him, and with the original subpoena to the witness with evidence of service thereof, and of the fact of payment or tender of his fees, together with the names of necessary witnesses to the fact of the refusal or failure of the witness to comply with the requirements of the law, and the judge-advocate's certificate that he is a necessary and material witness in the case. 1 Act of March 2, 1901. CHAPTER VII JURISDICTION: INFERIOR COURTS-MARTIAL 74. The Garrison Court-martial : Organization, Juris- diction, etc. This is a court for the trial of minor offenses; it can neither try capital cases nor commissioned officers. It derives its authority from the 82d Article of War which provides that " every officer commanding a garrison, fort or other place, where the troops consist of different corps, shall ... be competent to appoint, for such gar- rison or other place, courts-martial, consisting of three officers, to try offenses not capital." This article limits the jurisdiction of the court and pre- scribes the exact number of its members. This court is also provided with a judge-advocate appointed by the convening authority under the general provision therefor contained in the 74th Article of War. It has been held sufficient to fulfil the requirement as to "different corps" if there be on duty a single officer or enlisted man of another arm of the service than that of which the main body is composed. 1 75. The jurisdiction of this court extends to all cases not capital, however grave the offense; but as punish- ment by it is limited by the 83d Article of War, not to exceed confinement at hard labor for three months or forfeiture of three months' pay, or both, and, in addi- tion thereto, in the case of non-commissioned officers, reduction to the ranks, and in case of first-class privates 1 Court-martial Manual, p. 79; Dig. Op. J. A, G. 217. 40 JURISDICTION: INFERIOR COURTS-MARTIAL 41 reduction to second-class privates, all offenses requiring more severe punishment should be referred to a general court-martial. This reference is to be decided, how- ever, by the officer to whom the charges are sent and who has the legal power and authority to convene the court in the first instance. The record of a garrison court-martial is similar in form to that of a general court, but testimony taken before a garrison or a regimental court-martial will not be reduced to writing. 1 76. The garrison court-martial cannot try capital cases nor commissioned officers, cadets, or candidates for promotion; but it has jurisdiction over all other enlisted men, general prisoners, and, in time of war, over the persons described in the 63d Article of War. A garrison court-martial may be convened under the following circumstances : a. Where the accused, not being an enlisted man or a general prisoner, is not subject to the jurisdiction of a summary court, although he is subject to the jurisdiction of other inferior courts-martial, such as " retainers to the camp," and persons serving with the armies of the United States in the field. 2 6. In case the accused before trial refuses to consent in writing to trial by summary court, the case being one which a summary court cannot, under these circum- stances, adequately punish. c. When the accused, being a non-commissioned officer, objects to trial by summary court. Whenever under the summary court act or the 83d Article of War it becomes necessary to convene a gar- rison or regimental court, the order appointing it will state the facts which bring the case to be tried within the exceptions of those laws. 3 1 A. R. 987. 2 See Article 63, Chapter XXXI, post, par. 770. 3 Court-martial Manual, p. 80, A. R. 968. 42 MILITARY LAW 77. The Regimental Court - martial. Regimental courts-martial have the same organization, authority, juris- diction and powers of punishment, and are subject to the same restrictions as are prescribed for garrison courts- martial, except that regimental courts must be com- posed wholly of officers of the regiment or corps to which the accused belongs. They are convened by the com- mander of the regiment or corps, 1 and the word " corps" includes the Corps of Engineers, the Ordnance and the Signal Corps. 2 78. The functions of both the garrison and regimental courts-martial have been largely transferred to the sum- mary court. These courts are now only organized, as a rule, for the trial of non-commissioned officers who object to trial by the summary court, or in cases of other enlisted men where the accused shall, before trial, refuse to consent in writing to trial by the summary court; in which case the law provides that trial may be had either by general, regimental or garrison court-martial. A non-commis-j sioned officer can object to trial by any inferior court, but i may waive the objection and be tried by either of them, or, , notwithstanding his objection, he may be brought before either of them by the authority of the officer competent to order his trial by a general court-martial. 3 A private soldier who refuses before trial to consent in writing to trial by summary court may be brought before a general, regimental, or garrison court-martial, or before the sum- mary court with a limitation of its power of punishment to one month's pay and one month's confinement. 4 79. The Summary Court. The summary court has, by recent enactment, entirely displaced the field officer's court, and largely supplanted the garrison and regimental 1 Article 81, Chapter XXXI, post, par. 788. 2 Dig. Op. J. A. G. 212; Court-martial Manual, p. 81. 8 A. R. 966. 4 Article 83, post, par. 790. JURISDICTION: INFERIOR COURTS-MARTIAL 43 courts-martial in their functions. The summary court was first established by Act of Congress of October 4, 1890, which has since been modified by Act of June 18, 1898. Its object is to secure the speedy trial and disposal of cases of enlisted men properly triable by the inferior courts. As originally enacted it was in force only in time of peace and corresponded to the field officer's court, which was authorized by law "in time of war" only. The field officer's court was authorized by the then existing Article 80 of the Articles of War, which provided that "in time of war a field officer may be detailed in every regiment, to try soldiers thereof for offenses not capital; and no soldier, serving with his regiment, shall be tried by a regi- mental or garrison court-martial when a field officer of his own regiment may be so detailed." The summary court therefore ceased operation in time of war until the Act approved June 18, 1898, remedied the defect and re- pealed Articles 80 and 110, which Articles authorized and provided for the field officer's court. 80. This summary court act provides that "the com- manding officer of each garrison, fort, or other place, regi- ment 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 bat- talion thereof, a summary court to consist of one officer to be designated by him, before whom enlisted men who are to be tried for offenses, such as were prior to the pas- sage of the Act 'to promote the administration of justice in the Army,' approved October 1, 1890, cognizable by garrison or regimental courts-martial, and offenses cogniza- ble by field officers detailed to try offenders under the pro- visions of the 80th and 110th 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 44 MILITARY LAW summary court may be appointed and the officer desig- nated 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, adjudge the punishment to be inflicted, which said punishment shall not exceed confinement at hard labor for one month and forfeiture of one month's pay, and, in the case of a non- commissioned officer, reduction to the ranks in addition thereto; that there shall be a summary court record kept at each military post and in the field at the headquarters of the proper command, in which shall be entered a record of all cases heard and determined and the action had thereon; and no sentence adjudged by said summary court shall be executed until it shall have been approved by the officer appointing the court, or by the officer com- manding for the time being : Provided, That when but one commissioned officer is present with the command he shall hear and finally determine such cases: And provided farther, That no one while holding the privileges of a certificate of eligibility to promotion shall be brought be- fore a summary court, and that non-commissioned officers shall not, if they object thereto, be brought to trial before summary courts without the authority of the officer com- petent to order their trial by general court-martial, but shall in such cases be brought to trial before gar- rison, regimental, or general courts-martial, as the case may be." 1 This Act repeals Articles 80 and 110 of the Articles of War, relating to field officer's court, and provides "that the commanding officers authorized to approve the sentences of summary courts and superior authority shall have power to remit or mitigate the same." 1 Act June 18, 1898. JURISDICTION: INFERIOR COURTS-MARTIAL 45 81. The limit of punishment as contained in the fore- going Act was extended by Act approved March 2, 1901, which amends the 83d Article of War to read as follows : Article 83. Regimental and garrison courts-martial and summary courts detailed under existing laws to try en- listed men shall not have power to try capital cases or commissioned officers, but shall have power to award pun- ishment 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 non-commissioned 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, regimental or garrir son court-martial, or by said summary court, but in case of trial by said summary court without consent as afore- said, the court shall not adjudge confinement or forfeiture of pay for more than one month. 82. It will be seen by the foregoing laws that the sum- mary court now has jurisdiction over enlisted men, 1 includ- ing general prisoners, in time of war as well as peace; that its power extends to the trial of enlisted men only, others not being subject to its jurisdiction; that in cases of con- sent in writing to trial by such court its power of punish- ment has been largely extended, and that it has also been given power to reduce first-class privates to second-class privates. An officer who shall constitute the summary court is to be designated by the commanding officer, but he may be designated by superior authority when by him deemed desirable, and he is not subject to challenge. 1 Act June 18, 1898. 46 MILITARY LAW A commanding officer cannot appoint himself a sum- mary court if other officers are present with the command. 1 The summary court officer is not sworn in the cases on trial before him, but acts under his oath of office. He administers the oaths to witnesses, makes the necessary certificate as to the fact of attendance in case of a civilian witness, and administers the oath respecting his expense account; 2 but is not empowered to issue writs of attach- ment to compel the attendance of civilian witnesses. The procedure of the summary court should be similar to that of the older courts-martial. The charges and specifications should be read to the accused, and he be required to plead, and the witnesses should be sworn. But the testimony is not set forth in the record. 3 83. Whenever the only officer present with a command sits as summary court, no approval of the sentence is required by law, but he should sign the sentence as such officer and date his signature. 4 84. The statement of the accused as to whether or not he consents to trial by the summary court should be made and signed by him on the original charges, and a note of this statement in each case will also be entered on the record of the summary court and on the monthly report of trials of such court. 5 85. Delay beyond twenty-four hours does not invalidate the proceedings, but may be considered in awarding the sentence. The commanding officer determines what cases shall come before the court and when they shall come before it. Trials by this court are not to be held on Sunday except when the exigencies of the service render it neces- sary. 6 1 Circular 32, War Department, 1905. 2 Dig. Op. J. A. G. 2406. 3 Id. 2398. See Appendix E, 5. 4 A. R. 965. 6 A. R. 962. 6 A. R. 967. JURISDICTION: INFERIOR COURTS-MARTIAL 47 86. Whenever, under the summary court act or the 83d Article of War, it becomes necessary to convene a garrison or regimental court, the order appointing it will state the facts which bring the cases to be tried within the exceptions of those laws. 1 THE REGIMENTAL COURT-MARTIAL FOR DOING JUSTICE 87. The regimental court-martial for doing justice is a different tribunal from the regimental court for the trial of offenders and is provided for by Article 30 of the Articles of War, which is as follows : Article 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 vexa- tious, the party appealing shall be punished at the discre- tion of said general court-martial. The composition and organization of this court is the same as that of the regimental court-martial, and its proceedings are recorded as nearly as practicable in the same manner as the proceedings of general courts-martial, but its powers are not the same, its purpose not being for the trial of cases, but only to hear complaint and recom- mend the action to be taken to remedy the wrongs com- plained of, or to redress the grievance if it is found to exist, such as erroneous stoppages of pay, irregularity of detail, etc. The members of the court are subject to challenge by the parties, 2 and the members and the judge-advocate are sworn to faithful performance of their duties. Both 1 A. R. 968. 3 Winthrop, Vol. 1, p. 862; Ives, p. 138. 48 MILITARY LAW parties furnish a list of their witnesses to the judge-advo- cate, appear before the court, and may be sworn them- selves or submit proper documentary evidence, and examine and cross-examine witnesses. 88. Being purely a regimental court it can only act upon matters affecting enlisted men and officers of the regiment. The regimental commander only is competent to convene such court, and it cannot properly take cognizance of matters beyond the power of the regimental commander to redress. While its purpose is that of investigation,) and not of trial, it cannot usurp the functions of a court ; of inquiry; if the remedy proposed by the court is beyond/; the power of the regimental commander, he cannot enforce/ it and must submit the case to the proper authority foi] remedial action. 1 The evidence being received, the court's conclusions of fact must appear in the record, together with the recom- mendation of action to be taken, and must be approved by the regimental commander before becoming effective; when approved he issues the order for carrying the recom- mendation of the court into effect. 89. Either party may appeal, and the appellant must apply through the proper military channels to the depart- ment commander or other authority competent to order a general court-martial. Before such court the investi-, gation is pursued as if on a first hearing, but by consent of both parties the record of testimony received by thel regimental court may be admitted. If the appeal is found to be groundless and vexatious, the action taken is summary in character; the charge is formulated by the court, and the appellant is given opportunity to show cause why sentence should not be passed upon him. The proceedings, finding and sentence are submitted to the reviewing authority as in other cases of general court- 1 Davis' Military Law, pp. 226, 227. JURISDICTION: INFERIOR COURTS-MARTIAL 49 martial, and are acted upon and carried into effect in the usual manner. 1 These courts are seldom resorted to, all wrongs and grievances being usually acted upon, and remedies ordered at once, by the commander, when appeal is made to him through the proper military channels. 1 Davis' Military Law, p. 228. CHAPTER VIII ARREST AND CONFINEMENT 90. Arrest. Arrest is any seizure by power, physical or moral. It may be made by seizing or touching the body; but it is sufficient if the party be within the power of the officer and submit to arrest. In civil life it is usually effected through means of a criminal process called a warrant, issued by proper judicial authority, though arrest may be made without a war- rant by an officer, and even by a private citizen when the peace has been broken in his presence or a felony has actually been committed and he has reasonable ground to believe that the person he arrests is the perpetrator. No warrant is required for the arrest of soldiers by mili- tary authority. 1 The person arrested in civil life is held in bodily restraint in charge of an officer or, in bailable cases, allowed to go free under bail to appear at the time and place appointed for his trial. If he fails to appear his bail is forfeited, but that does not free him from subsequent arrest and trial when he can be found. In military arrest bail is not taken, but where an officer is arrested but not confined under guard, the penalty of dismissal for breach of arrest is a sufficient equivalent, as is the severe punishment awarded to an enlisted man for that offense. In preserving peace within a fort, an officer is authorized 1 Hutchings v. Van Bokkelen (1852), 34 Me. 126; Fed. Stat. Anno- tated, Vol. 1, p. 496. 50 ARREST AND CONFINEMENT 51 to employ all reasonable means, but the means used should be measured by the necessity of the case. The law will not justify the killing of a single unarmed soldier, though drunken, riotous, or even mutinous, when he could be arrested without resort to such extreme means. 1 An order, however, given by a military officer to a private under his command should be obeyed by the private, and will be his full protection in a criminal prose- cution, unless the illegality of such order is so clearly shown on its face that a man of ordinary sense and under- standing would know when he heard it read, or given, that the order was illegal. 2 91. The period for which an officer or soldier put in arrest may be confined is limited by the 70th Article of War to " eight days, or until such time as a court- martial can be convened," and Article 71 provides: "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 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 per- mit, within twelve months after such release from arrest." 92. Arrest of Officers. In the military service officers are placed in arrest by order of the proper superior, either written or verbal, given in person or through his 1 U. S. v. Carr (1872), 1 Wood U. S. 480. 2 In re Fair, 100 Fed. Rep. 149. 52 MILITARY LAW representative, usually the adjutant. No forcible meas- ures are taken to arrest, or to keep under restraint by force, except in extreme cases where escape is feared, and then it is usual to place a sentinel over the accused. An arrest may be ordered by the commanding officer in person or through a staff officer, orally or in writing. 1 93. The 65 th Article of War directs that " 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 dismissed from the service." The word " crime" is employed in this article in a general sense, and refers to all offenses of military as well as of civil character which are cognizable by a court-martial. 2 The " commanding officer intended in this article is the commander of the regiment, separate company, post, department, etc., in which the officer is serving. Where a company is included in a post command, the com- mander of the post, rather than the company commander, is the proper officer to make the arrest of a subaltern of the company." 3 The offense must be a serious one; officers are not to be placed in arrest for light offenses. A medical officer charged with the commission of an offense need not be placed in arrest until the court-martial for his trial con- venes if the service would be inconvenienced thereby, unless the charge is of a flagrant character. 4 The omis- sion of the arrest does not in any way affect the juris- diction of the court-martial. 5 94. An exception to the rule that commanding officers 1 A. R. 929. 2 Dig. Op. J. A. G. 170. 3 Dig. Op. J. A. G. 503. 4 A. R. 931, 932. 8 Dig. Op. J. A. G. 502. ARREST AND CONFINEMENT 53 only have power to place officers in arrest is found in the 24th Article of War, which gives to "all officers, of what condition soever/' power "to part and quell all quarrels, frays and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery or company, and to order officers into arrest and non-commissioned officers and soldiers into confinement, who take part in the same, until their proper superior officer is acquainted therewith." The word "officers" coupled with the words "of what condition soever," in this Article, is held to include all classes of officers, non-commissioned as well as com- missioned, being an exception to the meaning of the term "officer" contained in the first paragraph of Sec. 1342, Revised Statutes, enacting the Articles of War. In all cases, however, when a junior acts, he should at once report to the commanding officer a statement of the facts, making him "acquainted therewith." 1 95. The arrest and detention of a retired officer, by the mil- itary authorities, under charge of violation of the Articles of War are authorized by the 65th Article of War ; and the civil courts will not interfere to procure his discharge on habeas corpus proceedings. And this is so, though the officer is arrested in his own house and is taken therefrom and held in close confinement in a military barracks, before specific charges as to the military offense committed by him have been formulated and served on him. 2 96. Status of an Officer in Arrest. An officer arrested will repair at once to his tent or quarters, and there re- main until more extended limits have been granted by the commanding officer. Close confinement will not be enforced except in cases of a serious nature. 3 1 Davis' Military Law, pp. 393, 394. 2 Closson v. U. S., 7 App. Cases (D. C.) 460; Fed. Stat. Annotated, Vol. 7, p. 1032. 8 A. R. 930. 54 MILITARY LAW 97. The order of arrest given an officer includes con- finement in his barracks, quarters or tent, with deprivation of the right to wear his sword, and "any officer who leaves his confinement before he is set at liberty by his com- manding officer shall be dismissed the service." 1 98. Officers in arrest are ordinarily considered as on parole, but when accused of having broken their arrest, or of any heinous offense, the penalty of which might induce a desire to escape from justice, they have, when under close arrest, been placed in the custody of the provost- marshal or in charge of a sentry. An officer in arrest will not wear his sword nor visit officially his commanding officer or other superior officer, unless directed to do so. His applications and requests of every nature will be made in writing. 2 On the march, field officers and non-commissioned staff officers in arrest will follow in rear of their respective regiments, and com- pany officers and non-commissioned officers in arrest in rear of their respective companies, unless otherwise specially directed. 3 99. The actual taking of his sword from a commissioned officer as provided in the article of war is not an essential part of his arrest; the fact that it was not taken does not invalidate the arrest or empower him to wear his sword while in arrest, the effect of the status of arrest being to suspend him from the functions of his office and to deprive him of the exercise of command. 4 100. An officer by being placed in charge of a provost- marshal, or by having a guard placed over his quarters, is not thereby relieved from the responsibility of arrest. 5 101. The officer in arrest is on honor to keep within 1 65th Article of War, post, par. 772. 2 A. R. 933. 3 A. R. 934. 4 Winthrop's Abr., 3d Ed., p. 47. 8 Simmons on Courts-martial, Sec. 355. ARREST AND CONFINEMENT 55 the limits of his arrest and to await the issue of his trial. 1 1 02. The penalty of dismissal is sufficient to enforce the observance of the arrest and is an equivalent to the bail in civil causes, the penalty being in most cases greater than the forfeiture of bail in large amount. When the arrest continues for any time the limits are usually extended by the commanding officer who designates such extension in the order granting it; until extended the officer is in close arrest and confined to his quarters strictly. 103. The penalty of the 65th Article of War has been held to apply to " close arrest" only, and not to cases where the limit has been extended. As, however, the extension is given for the benefit of the officer, a strict|\ construction would hold him to the same accountability as in close arrest ; but as restrictive laws are given a liberal construction it has been held by the Judge-Advocate- General that breach of an arrest not accompanied by confinement to quarters is not an offense under the 65th Article of War, but under the 62d. An unintentional or inadvertent violation of the arrest, in either case, constitutes a constructive breach of arrest, but does not involve the odium of, or constitute the offense attached to, a voluntary breach thereof. The fact should, however, be immediately reported to the commanding officer, stating the circumstances of the case, thereby satisfying him that it was not intentional. Failure to do this may lay the officer open to suspicion of intent to commit the breach and an endeavor to conceal it. 104. Arrest of Enlisted Men. Non-commissioned of- ficers, except in aggravated cases or where escape is feared, and soldiers who have committed minor offenses, subject to trial by summary court, are placed in arrest 1 Davis' Military Law, p. 63; Tytler, Essay on Military Law, pp. 202, 203. 56 MILITARY LAW in their barracks or quarters. Private soldiers under more serious charges are confined to the post guard-house. 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. 1 And an officer authorizing such arrest or confinement must report the fact as soon as practicable to the prisoner's company or detachment commander. 2 105. No provost-marshal or officer commanding a guard can refuse to receive or keep a prisoner committed to his charge by an officer belonging to the forces of the United States; provided the officer committing him, at the time thereof, delivers an account in writing, signed by himself, of the crime charged against the prisoner. 3 And every officer to whose charge a prisoner is committed must, 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 person, the crime with which he is charged, and the name of the officer committing him. 4 If there be any prisoner with no record of charges against him, the old officer of the day must report that fact to the commanding officer for his instruc- tions. 5 The facts required to be reported by Article 68, and as to there being no record of charges, appear in the guard report book, presented to the commanding officer by the old officer of the day when he reports to be relieved by the new officer of the day, immediately after guard- mounting. 1 06. The period for which officers and soldiers under arrest may be kept in confinement is limited to eight days, " or until such time as a court-martial can be assembled." 6 1 A. R. 937. 2 A. R. 938. 3 Article 67; see Chapter XXXI, post, par. 774. 4 Article 68; see Chapter XXXI, post, par. 775. 6 A. R. 941. 8 Article 70; see Chapter XXXI, post, par. 777. CHAPTER IX ARREST OF PERSONS IN MILITARY SERVICE BY CIVIL AUTHORITIES 107. Persons in the military establishment may, in time of peace, be arrested for a capital crime, or any offense against the person or property of a citizen, and be tried therefor by the civil courts. To secure this arrest Con- gress has enacted the 59th Article of War. Article 59. When any officer or soldier is accused of a capital crime, or of any offense against the person or prop- erty of any citizen of any of the United States, which is pun- ishable by the laws of the land, the commanding 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 trie party injured, to use their utmost endeavors to deliver him over to the civil magis- trate, 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 wilfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in appre- hending him, he shall be dismissed from the service. The term "laws of the land" in this article has been con- strued to include " municipal ordinances and by-laws;" and a soldier may be arrested and tried by civil authority for violation of a city ordinance. 1 This article leaves no 1 Cir. 15, Headquarters of the Army, A. G. O., 1894. 57 58 MILITARY LAW discretion to the commanding officer; upon the applica- tion being made, he must use his utmost endeavors to aid the civil officers in apprehending and securing the accused in order to bring him to trial. The application required by this Article should be made in case of a crime committed before enlistment, as well as after it. 1 1 08. The commanding officer, before surrendering the party, should require the application to be sufficiently specific to identify the accused and to show that he is the person charged with a crime or offense within the class described in the Article. Without compliance with such requirement the officer cannot surrender nor the civil au- thorities arrest, within a military command, an accused officer or soldier. If the commanding officer is doubtful whether the application is made in good faith and in the interest of law and justice, he will require it to be explicit and be swesai sworn to ; and, in general, the preferable and only satisfac- tory course will be to require the production, if practicable, of a due and formal warrant or writ for the arrest of the party. 2 109. Soldiers not within the immediate control or juris- diction of the military authorities, as an officer on leave or an enlisted man on furlough, may be arrested in the same manner as any citizen. no. The Article does not apply to civilians employed or residing at a military post accused of civil crime, and application cannot be required to be made to the com- manding officer before arresting the party; but it should be made or notice given him as a matter of comity. 3 Nor does the Article apply to offenses against the laws of the United States, or to those committed in places over which 1 Dig. Op. J. A. G. 95. 2 id. 3 Dig. Op. J. A. G. 103. ARREST BY CIVIL AUTHORITIES 59 the United States has exclusive jurisdiction. It applies only to officers or soldiers accused of an offense. It does not apply to the service of a subpoena to appear as a witness before a civil court. In such case the civil official should, as a matter of comity, first apply to the command- ing officer, and where the application for such service is so made the commanding officer will, as a matter of comity in return, facilitate the service and issue the necessary permit or order to enable and cause the officer or soldier to attend the court. 1 in. When a soldier is serving a sentence of confinement imposed by a court-martial, he cannot, in general, properly be surrendered under this Article. The civil authorities should defer their application till the military punishment is executed or remitted. 2 112. In cases where the act committed constitutes an offense against both military and civil law, that authority which first assumes jurisdiction of the case retains it until completed. If the accused has been arrested and is under charges for trial by the courts of either jurisdiction, the authorities of the other should await the result of the operations and judgment. But whatever that may be, if the case is adjudicated and the sentence completed, he may then be called to account for the offense against the laws of the other jurisdiction, and his former trial is no. bar to trial by its courts. 113. Service of Process on Military Reservations over which Jurisdiction has not been Ceded. Where a military post is within the territorial boundaries of a State, and there has been no cession of jurisdiction by the State, the State officials have the same right and author- ity to serve process there, and its courts have the same jurisdiction over acts done and crimes committed within 1 Dig. Op. J. A. G. 104. 2 Dig. Op. J. A. G. 98. 60 MILITARY LAW the limits of the post, as elsewhere in the State; the ownership or occupation by the United States not except- ing it from the operation of State laws. 1 Likewise, where a military post is located in a Territory, the territorial courts are authorized to issue process for the arrest of officers and soldiers charged with crime, or to serve process in civil actions and to attach, replevy upon, or take in execution property belonging to them within the post, not specially exempted from seizure, and commanding officers of such posts should interpose no obstacle to due service, within their commands, of the legal process of the territorial courts, these courts not existing under a sovereignty dis- tinct from that of the United States, but being estab- lished under the provision of the Constitution empowering Congress "to make all needful rules and regulations re- specting the territory belonging to the United States." 2 114. Service of Process on Reservation where Juris- diction has been Ceded by the State. As a general rule, military posts situated within the limits of a State are occupied under a grant with cession of jurisdiction given by the State. In most cases the State reserves the right to serve process within the ceded territory in both criminal and civil cases arising outside the same. 115. Crimes committed within the ceded territory are cognizable by the United States authorities only; 3 but persons, whether soldiers or citizens, who commit crimes outside that territory and have violated the State laws cannot take refuge upon the United States reservation and be exempt from arrest. In fact the commanding officer should, when requested, assist in the arrest of such criminals. 1 Davis' Military Law, p. 460; Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 527, 533. 2 Davis' Military Law, p. 461. 3 Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 532, 533; In re Ladd, 74 Fed. Rep. 41. ARREST BY CIVIL AUTHORITIES 61 1 1 6. All military persons are amenable to suit in the civil courts in cases arising out of their personal rela- tions and responsibilities to civilians, or for damages arising from any excess of authority to the detriment of another, or for illegal or excessive punishment imposed or an un- authorized arrest or confinement. 1 1 Winthrop's Abr., pp. 340, 341. CHAPTER X CHARGES AND SPECIFICATIONS 117. The charge designates in general terms the offense committed, while the specifications state the specific acts which constitute the offense designated in the charge. They ought to be drawn up with all the essential pre- cision, certainty and distinctness which the prisoner is entitled to demand in an indictment at common law; though they need not be drawn in the same technical forms. 1 Each charge must be sustained by one or more speci- fications, each of which must allege facts which sustain the charge, and which brings the offense within the juris- diction of a court-martial. It is not necessary that the charge and specification should be drawn up with all the formality and use of technical terms of a civil indict- ment, but it is sufficient that they show the offense com- mitted with the time, place and circumstances which will bring it within the jurisdiction of the court-martial, and they must be so fully and clearly stated that the accused can ascertain therefrom the offenses with which he is charged and from what accusation he must defend himself. The offense charged must be laid under the proper article of war and the facts constituting it be clearly stated, and the name of the accused, his rank, 1 3 Greenleaf, Ev., Sec. 471. CHARGES AND SPECIFICATIONS. 63 and the organization to which he belongs, together with the place and date of the commission of the offense, must be given. If the exact time and place cannot be specified, it will be sufficient to state it as committed "at or near" a certain place specified, and "on or about" a certain date specified. Whenever an act charged against an officer under a specific article of war likewise constitutes conduct unbecoming an officer and a gentleman, it may also be charged under the 61st Article of War. 1 118. An error in the name, rank, etc., as drawn in the charge, may be corrected before arraignment. If, how- ever, the accused pleads under a wrong name or title, he may, if found guilty, be punished, for he cannot take advantage of his own wrong. 119. When an article of war includes more than one offense a charge laid under that article should state in its specification the particular offense committed, and not be drawn in the alternative form. The use of the alter- native form is not permissible, as the accused is entitled to know the specific offense with which he is charged and cannot be required to defend himself as against a charge of either having committed one offense or else the other; the officer preferring the charges must state the explicit offense charged. It would be improper, for example in a charge under the 17th Article of War, to state in the specification that the accused did "lose or sell" his arms, clothing, etc. 2 1 20. Military usage and procedure permit of an indefi- nite number of offenses being charged and adjudicated in one proceeding. The accused may be arraigned upon several charges at one trial, and an approved finding of guilty on one of them, a conviction of which requires or authorizes the sentence adjudged, will give validity and 1 See Carter v. McClaughry, 183 U. S. 365. 2 See post, Chapter XXXI, par. 724. 64 MILITARY LAW effect to such sentence, although the similar findings on all the other charges are disapproved. 1 121. Intent. Whenever " intent" is a necessary ele- ment of a crime, that intent must be set forth in the specification; for example, in a charge of larceny the specification should show not only the "taking and carry- ing away" but the intent to convert to his own use. When it is an essential ingredient of an offense, the alle- gation of intent may be made by the use of the words "wilfully"; "knowingly"; "feloniously"; "corruptly," etc., in the specifications. The words "knowingly" and "wilfully" occur in certain articles of war, and the word "feloniously" is properly used to describe an intent when the act constitutes an offense punishable by imprisonment in a State prison or penitentiary. Some Articles of War, as the 13th, 20th, and 39th, contain no reference to intent. 2 122. Who may Prefer Charges. Any army officer may prefer charges against another officer whatever their relative rank, or against any non-commissioned officer, soldier or other person amenable to military law. An officer may prefer charges even though himself, at the time, under charges. But a person may be tried for preferring false charges. 3 Charges should be signed by a com- missioned officer, but a contract surgeon or dental surgeon may sign charges against an enlisted man. 4 123. Who may Initiate Charges. Charges may be initiated by soldiers through complaint made to their, proper superior, or by persons not in the military service through statements supported by satisfactory evidence furnished to an officer who may sign such charges and thereupon assume the responsibility therefor. In sup- 1 Dig. Op. J. A. G. 2311; Carter v. McClaughry, 105 Fed. Rep. 614; Id., 183, U. S. 386. 2 Davis' Military Law, p. 70 and note. 3 Ives, p. 84. 4 Court-martial Manual, p. 20; A. R. 1421, CHARGES AND SPECIFICATIONS 65 port of accusations of facts not within his own knowledge, the officer should investigate the truth thereof, and require affidavits or other satisfactory evidence to be furnished him sufficient to satisfy himself that the charges can be proved before the court-martial. 124. To Whom Sent. Charges should be sent through proper military channels to the officer authorized by law to convene a court-martial for the trial thereof. In general court-martial cases it is required that the com- manding officer of the post, or some officer designated by him, other than the officer preferring the charges, shall investigate them before they are forwarded, and the commanding officer must state in his endorsement thereon in forwarding them the name of the investigating officer, and also whether or not, in his opinion, the charges can be sustained. 1 125. Accumulative Charges. The accumulation of charges by holding back trial of certain offenses until several have been committed and then bringing them all before a court-martial is irregular and not favored, having the appearance of a desire to punish rather than to main- tain discipline. 126. Alteration of Charges. Charges submitted against any person may be altered and corrected by the convening authority before forwarding them to the judge-advocate of a court-martial for trial. The judge-advocate cannot alter or change the charges sent him in any material matter, otherwise they would not be the charges referred which he was authorized to bring to trial before the court; neither he nor the court-martial can originate and try charges not referred to them for trial by the convening officer; nor can charges referred to them be withdrawn and new ones submitted by direction of the court; nor can the court direct any amendment that will materially 1 A. R. 962. 66 MILITARY LAW modify the charges; they must be brought to trial as they stand, and, after arraignment, the accused can only be tried upon the charges to which he has been called upon to plead. The judge-advocate may, however, correct a manifest minor error, in name, date, or number, etc., butr he must not make any material, substantial amendment without the authority of the convening officer. 127. Additional Charges. After the original charges have been preferred and trial ordered thereon, new charges for offenses additional to those already charged may be drawn and referred for trial by the same court-martial and at the same time as the original charges. They must, however, be received and the accused arraigned upon them at the same time as on the original charges, in order to be included in the same trial with them. If they are not, a separate trial on them will be necessary, since the court can try only those charges which are before them at the time of taking the oath which requires that they "try and determine the matter now before them." 128. Service of Charges. When an officer is placed in arrest for purpose of trial, except at remote military posts or stations, a copy of the charges on which he is to be tried must be served upon him within eight days after the arrest, or the arrest will cease. 1 This service consists in delivering to the accused personally a copy of the charges and specifications against him. The delivery may be made by the adjutant, the judge-advocate of a court appointed for the trial of the case, or by any officer directed by proper authority to make it. 129. Enlisted men should be informed of the charges and specifications against them, and it is the duty of the judge-advocate to furnish the accused with a copy of the charges on which he is to be tried, within reasonable 1 Art 71. See Chapter XXXI, post. par. 778. CHARGES AND SPECIFICATIONS 67 time previous to trial, to enable him to prepare his defense and summon his witnesses. Any person indicted for a capital offense in a United States court has a right to have the list of witnesses delivered to him at least two entire days before the trial, and, in case of treason, three days before it. 1 The accused is entitled to be informed of the nature and cause of the accusation against him by a particular statement of all that is material to constitute the offense set forth with reasonable certainty as to time and place, and in the customary forms of law. If the charges are materially changed or additional charges are drawn, it is the right of the accused to have copies thereof, with reasonable time to meet them. PAPERS THAT SHOULD ACCOMPANY CHARGES 130. General Courts. Charges against enlisted men forwarded to the authority competent to order trial by general court-martial must be accompanied by a statement of service of the accused, showing dates of present and former enlistments, his character, as given on each dis- charge, and the date of confinement for the offense alleged in the charge; proper evidence of previous convictions must also accompany the charges, 2 and, in case of desertion, a report of the physical examination made by the medical officer at the post where the deserter is received. 3 The statement of service will not be introduced in evidence, and is not made part of the record, but will be considered by the court and shown to the accused, with a view to correction by the introduction of evidence should it be required. It will be returned by the judge- advocate with the charges, which it accompanies, and 1 Sec. 1033, Revised Statutes; Logan v. U. S., 144 U. S. 263. 2 A. R. 961. 3 A. R. 124. 68 MILITARY LAW will be forwarded with the record for file in the office of the Judge- Advocate-General. The evidence of previous convictions is appended to the record, each with its proper mark, as referred to in the body thereof. 131. Inferior Courts. Charges against an enlisted man for trial by garrison, regimental, or summary court must be accompanied by proper evidence of previous convic- tions, but, in the summary court alone, if the evidence of such convictions is contained in its record, a reference to it will be sufficient, and if this evidence is not submitted or cited the court may take judicial notice of any such evidence which that record contains. 1 1 A. R. 963. CHAPTER XI ORGANIZATION OF COURTS-MARTIAL 132. Charges having been received and approved by an officer authorized to convene a court-martial, such court is convened by his order. This order is dated at his head- quarters, and designates the names of the officers who will constitute the court-martial, and the judge-advocate, to- gether with the time and place at which the court will meet. The charges and specifications, with the accom- panying papers, are then sent to the judge-advocate, who must make the necessary preparations for the meeting of the court and trial. The number of members and their eligibility for detail is regulated by the 75th Article of War- Article 75. General courts-martial may consist of any number of officers from five to thriteen, inclusive; but they shall not consist of less than thirteen, when that number can be convened without manifest injury to the service. 1 133. Since the word " officer" as used in the Articles of War designates commissioned officers, 2 such officers only can sit upon courts-martial. 3 Commissioned officers are those who have been duly ap- pointed and commissioned by the President and have received their commissions. When they have been ap- pointed by the President and confirmed by the Senate 1 See par. 46, supra. 2 Sec. 1342, Revised Statutes U. S. 1 See par. 47, supra. 70 MILITARY LAW and have received their commissions it is a permanent appointment. The appointments and commissions given by the President during the recess of the Senate are also constitutional appointments, but temporary, as they ex- pire, if not confirmed by the Senate, at the end of its next session. Meanwhile they are as regular and legal and effective as permanent appointments, conferring the same rights for the time being and among them eligibility to sit as members of a court-martial. 134. Militia Officers. Under the law militia officers only may sit upon courts-martial for the trial of officers and enlisted men of the Militia. Volunteers. Both militia and volunteer officers may be members of a court-martial for the trial of volunteers. Regulars. Militia, volunteer, and regular officers, and Officers of the Marine Corps detached for service with the Army, may sit upon courts-martial for the trial of officers and enlisted men of the regular forces. 1 Regular officers are prohibited from sitting upon courts- martial for the trial of officers or soldiers of " other forces" by the 77th Article of War, except in case of forces of the Marine Corps detached for service with the Army. 2 135. Rank of Members. All commissioned officers of the staff or line, having actual military rank, are eligible for detail as members of a court-martial. Members sit upon the court according to their relative rank, the senior in rank always being president of the court. Military rank, as well as commission as an officer, is necessary for the reason that, by Article 95, members give their votes according to rank; and, by Article 79, no officer shall, when it can be avoided, be tried by officers inferior to him in rank; and, by custom of service, officers are seated on the court in order of rank. By the Act of June 13, 1905, 1 See ante, par. 50, 51. 2 See ante, par. 50. ORGANIZATION OF COURTS-MARTIAL 71 retired officers are, with their consent, eligible for detail on courts-martial and may be assigned to such duty by the Secretary of War. 136. Number of Members. The number of members as required by the 75th Article of War may vary from five to thirteen, the former being the minimum and the latter the maximum number to constitute a legal court-martial. Five members constitute a quorum, but a lesser number may meet and adjourn, and if five members are present and one is objected to, the other four may try and determine the challenge; but in every case, throughout the trial, at least five members must be present and duly sworn to try the case. In revision proceedings, also, at least five members of the court which tried the case must re-assemble to con- sider and act upon matters connected with the case re- ferred to it by the convening authority, and their final action will be the action of the court. 137. Determination as to Number of Officers. The question as to the number of officers, between five and thirteen, to constitute any general court-martial is de- termined by the convening officer, taking into considera- tion the demands and exigencies of the service at the time. His decision within those limits, as contained in the order constituting the court, is conclusive. 1 138. New Members. Whenever a court-martial is, from any cause, reduced below the minimum, the court should adjourn, reporting the fact to the convening authority. New members may then be added. If the reduction below the minimum takes place during a trial and after testimony has been taken, the court should preferably be dissolved and a new court ordered. 2 If a new member is added after the trial is begun, he is open to challenge, 1 Martin v. Mott, 12 Wheat. (25 U. S.) 19; 6 Op. Attorney-General, 506. 3 Court-martial Manual, pp. 12 and 28. 72 MILITARY LAW as any other member; he must be duly sworn if accepted; and all the testimony previously taken should be read to him in the presence of the parties. If any member is absent during the introduction of evidence, he should not thereafter take part in the trial. But if he reports again for duty with the court, all evidence and material pro- ceedings taken in his absence must be read to him before he begins to act upon the court, and, no objection being/ made, and the court permitting him to sit, his sitting will not invalidate the proceedings. 139. The promotion or advancement in rank or grade of a member does not affect his competency, but if dis- missed or discharged from the service he is no longer a commissioned officer and cannot act upon the court. If retired he is only eligible to sit after giving his consent thereto and being assigned to such duty by the Secretary of War. 1 140. The 79th Article of War provides as follows: Article 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. This, like determining the number of officers that shall constitute the court, is left to the discretion of the con- vening authority. The fact that an officer sitting upon a court-martial is junior in rank to the accused is, of itself, no legal ground for challenge. But where such member has a direct and immediate interest in the result if the accused should be convicted, as where he stands first in the list for promotion, and the conviction of the accused might result in his dismissal and give the member his advanced grade, this would constitute good cause for challenge on ground of interest in the result. 141. The President of a Court-martial. The presi- dent of a court-martial is not announced. The officer 1 Act April 23, 1904; G. O. 76, War Department, 1904. ORGANIZATION OF COURTS-MARTIAL 73 highest in rank present will act as the president. 1 He presides over the deliberations of the court with the same authority and power as the chairman of any deliberative body in parliamentary procedure ; acts as the mouthpiece and representative of the court in declaring its decisions and rulings, and in the preservation of order and the regu- larity of its proceedings; and sees that everything is con- ducted in a manner befitting a court of justice. 2 His vote, however, in any matter whatever before the court, has no more weight than that of any other member, nor is any member bound to follow his opinion. He calls the court to order at the proper time, and sees that order is preserved in the court-room both by members and others present. He administers the oath (Article 85) to the judge-advocate after the court has been duly sworn by the latter, but he exercises no command over the judge-advocate or members of the court and is on the same status as to being subject to challenge, etc., as any other member. It is his duty, with the judge-advocate, to authenticate by his signature the record of the pro- ceedings of the court-martial and also to sign all acts, orders, etc., requiring it, such as interrogatories for depo- sitions prepared during the session of the court, etc. 142. Seating of Members. The members of the court- martial take their places on it according to rank, the senior presiding, the next in rank sitting on his right and the next senior on his left, and so alternating from right to left according to rank until the junior is last, near the foot of the table. The judge-advocate usually sits at the foot or at a smaller table near it. In important cases or where it is deemed desirable, the members are arranged to sit on one side of the table, the president in the center and the other members on 1 A. R. 953. 2 See Manual of Military Law, War Office (England), 1894, p. 640. 74 MILITARY LAW his right and left, alternately, according to rank; the judge-advocate and the reporter being at a separate table opposite the president, with each witness, when testifying, on his right. The accused and his counsel are seated at a table on the other side of the witness from the judge- advocate, facing the court. This enables the members of the court to better hear the judge-advocate, the accused and his counsel, and to observe the witness while deliver- ing his testimony. 143. Conduct of Members. A court-martial has no power to punish jts members, but, by Article 87, "all members of a court-martial are to behave with decency and calmness/' and for disrespectful language or disorderly conduct any member may have charges preferred against him as for other offenses against military discipline. Improper words used by him should be taken down in writing, and any disorderly conduct reported to the appointing authority. 1 144. The court-martial corresponds in its character to the civil court, and includes in its powers the functions there exercised by both the judge and the jury. The con- duct of members should be accordingly dignified and attentive. Inattention of a member is reprehensible, and any act indicating it tends to lower the dignity of the court. 145. Quorum. So long as the number of its members constitute a legal quorum its membership may be changed, without affecting the legality of the court, by the relief and assignment to other duty of some of its members or by addition of new members; but the membership of a court should never be changed if it can be avoided after it has entered upon the trial of any case. 146. Performance of Other Duties. A member of a court-martial stationed at the place where it sits is liable to duty with his command during adjournment from 1 A. R. 954. ORGANIZATION OF COURTS-MARTIAL 75 day to day. Courts will, as far as practicable, hold their sessions so as to interfere least with ordinary routine duties. 1 It is usual, however, to excuse the judge- advocate from other duties in important or extended cases, because of the necessity of preparation of the record for each day's sessions, and other duties connected with the meeting of the court, such as the examination of cases, subpoenaing of witnesses, etc. 147. Uniform. The dress uniform is prescribed to be worn by members of general courts-martial and courts of inquiry. 2 But in commands not provided with dress uniform the service uniform will be worn for those duties. 3 Sabers are worn in each case by the members; the judge- advocate and the counsel, if a military person, appear in the same uniform as the members but without side-arms. Military witnesses wear the same uniform as the members, with side-arms. 1 A. R. 952. 2 G. O. 197, 1904. 8 Cir. 37, 1905. CHAPTER XII THE JUDGE-ADVOCATECOUNSEL FOR ACCUSED 148. The appointment of a judge-advocate is provided for by the 74th Article of War. Article 74. Officers who may appoint a court-martial shall be competent to appoint a judge-advocate for the same. The order convening a general, garrison, or regimental court-martial designates the officer who is to act as the judge-advocate. He is not a member of the court and has no voice in its decisions. His duty is that of a prosecutor of the case for the United States, subject to the limitations of the 90th Article of War, which requires him, after the prisoner has made his plea, to "so far consider him- self 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/' He must act as adviser of the court upon ques- tions of law when requested by it, but not otherwise; all his legal opinions must be given in open court, the accused and his counsel having the right to be present and hear them. In his opinion he must confine himself to the question asked and in no manner attempt to influ- ence the court. 149. The judge-advocate is not subject to challenge, but if he is the actual accuser and a material witness with a hostile animus in the case, such as would prevent 76 THE JUDGE-ADVOCATE 77 his dealing fairly and justly with the accused, the fact should be made known, by the judge-advocate himself, to the convening authority, who would properly relieve him in that case. A member cannot act as judge-advocate, nor has the court any authority to name a judge-advocate in his absence. If the absence is for any considerable time the court should report the absence to the convening authority for his information, and adjourn, awaiting his action. 150. Preparation for the Trial. The judge-advocate having received the order convening the court and appoint- ing him judge-advocate thereof, with the charges preferred and accompanying documents, should furnish the accused with a copy of the charges, inform him as to his right to ask for counsel, and notify him of the date and place of meeting of the court, in sufficient time beforehand for him to prepare his defense and secure his witnesses, a list of whom he must furnish to the judge-advocate, who will take the necessary steps to secure their attendance. The judge-advocate also prepares his own case for the prosecu- tion by examination of the witnesses as to the charges and specifications, and the law and decisions affecting the particular offense charged, and, if the case is an important one, applies to the convening officer for authority to employ a stenographic reporter; he is also authorized to request the commanding officer to detail an enlisted man to assist him in preparing the record. 1 He must see that the charges and specifications are correctly drawn, and should report at once, and before the court convenes, to the convening authority any mistake or irregularity in the order convening the court, or any, except minor errors, discovered in the charges and specifications. Before the date of the meeting of the court he applies to the quartermaster for a room suitable for the use of 1 A. R. 994. See Reporter, par. 162-164. 78 MILITARY LAW the court, with necessary tables, chairs, etc., and for the stationery likely to be used, and he must see that all these things are in readiness before the hour fixed for the meeting of the court. 151. Duties during Trial. The court having met and organized, the judge-advocate presents his cases and conducts the prosecution in such manner as will best and most clearly place the facts before the court. Unless otherwise directed by the convening authority he deter- mines the order in which cases referred to him for trial shall be brought before the court and the best method of conducting them, and he cannot be directed by the court J as to his manner of presenting the case. As recorder he must keep a full and accurate record of the proceedings and affix his signature to each day's proceedings. The entire record is authenticated by his signature and that of the president of the court, 152. Closed Session. The court may go into closed session for the consideration of any matter coming before it, and always does so when considering the finding and sentence. When the court is to be closed the president of the court so announces, and all persons, including the accused, his counsel and the judge-advocate, withdraw from the room. 1 Where there are many spectators present it is sometimes more convenient for the court itself to withdraw to an adjacent room for deliberation in closed session than to clear the room, and this is frequently done in such cases, the members returning to their seats upon the conclusion 1 The Act of July 27, 1892, requires that, whenever a court-martial shall sit in closed session, the judge-advocate will withdraw; this with- drawal should be stated in the record. If not noted therein, however, the presumption is that when the record states that " the court was then closed," the law was complied with, and it will not invalidate the proceedings if the record should fail to state when the court was closed that p. 118; Ives' Military Law, p. Ill: Ben^t p. 108; Winthrop, Vol. 1, p. 328. 106 MILITARY LAW 210. Nolle Prosequi. Nolle prosequi is the formal decla- ration of the prosecuting officer that he will no further prosecute the case, either as a whole or as to some of the counts of the accusation. In the civil courts after a jury has been impanelled a nolle prosequi cannot be entered without the consent of the defendant, even with the consent of the judge; if the hearing is stopped by withdrawing a juror, the effect is an acquittal and the defendant is entitled to a verdict of not guilty; 1 and in court-martial cases where the court has been duly or- ganized and sworn, the accused arraigned and his plea entered, the court is fully in possession of the case, and the accused is in general entitled to have the trial carried forward to acquittal or conviction. 2 211. As the prosecution before a court-martial pro- ceeds in the name and by authority of the government, the United States, through the Secretary of War, or the military commander who has convened the court, may require or authorize the judge-advocate to enter a nolle prosequi in a case on trial (or less technically to with- draw or discontinue the prosecution) either as to all the charges where there are several, or as to any particular charge or specification. But the judge-advocate cannot exercise this authority at his own discretion, nor can the court direct it to be exercised. 3 1 Bishop's New Cr. Law, Vol. 1, Sec.' 1016. 2 Davis' Military Law, p. 118. 3 Dig. Op. J. A. G. 1797. CHAPTER XV ATTENDANCE OF WITNESSES WRIT OF ATTACH- MENTHABEAS CORPUS 212. The judge-advocate of a court-martial is author- ized by law (Sec. 1202, R. S.) to issue like process to compel witnesses to appear and testify, as may lawfully issue from the courts of criminal jurisdiction within the State, Territory, or District where such court-martial shall be ordered to sit. Witnesses for both prosecution and defense are subpoenaed by the judge-advocate, and the accused must, therefore, furnish his list of witnesses to him in time for them to be subpoenaed and appear at the time and place of trial. The judge-advocate will summon only necessary witnesses, and unless he is sat- isfied that their testimony is necessary and material will not summon any witness at the expense of the govern- ment. 1 If he declines to subpoena a witness declared by the accused to be material and necessary for his defense, the question will be submitted to the court and, if it so decides, the witness will be supcenaed by its order. 213. Subpoenas may be served by any person compe- tent to make oath to the service; 2 the service must be 1 A. R. 956. 2 Subpoenas should ordinarily be served by persons in the military service, but they may be served by civilians when service by persons in the military service is impracticable or less economical. Where service is made by a civilian, he is entitled to a reasonable compensa- tion therefor, and his accounts will be sent to The Military Secretary of the Army with a view to payment. (Cir. 42, War Dept., 1906.) 107 108 MILITARY LAW personal. Judge-advocates of courts-martial must, when- ever it is possible, send their subpoenas through military channels. 1 In the case of military persons the summons 2 sent through proper channels is sufficient to procure attendance. If at the post where the court convenes, it is transmitted through the post commander. If the per- son summoned is at any other post than that at which the court is sitting, the department commander will be requested to order the witness to attend, or the witness will apply to his proper superior for necessary orders or authority to obey the summons. 3 As he is subject to military authority he is not entitled to fees or mileage other than that provided by law for persons in the ser- vice travelling on duty under orders, the order stating that such travel is necessary for the public service. 214. Civilian Witness. In the case of a civilian witness the subpoena must be made out in duplicate 4 and personal service made by delivery to the witness of one of these subpoenas, the other being retained by the person serving the subpoena, who endorses it with his certificate of service, showing the date and place thereof, and his affidavit to the truth of his certificate, made before an officer authorized to administer oaths for general purposes, and returns it to the judge-advocate. 215. A civilian witness in the employ of the govern- ment duly subpoenaed to appear before a court-martial is entitled to transportation in kind from his place of resi- dence to the place of meeting of the court and return, or, if that is not furnished, to a reimbursement of the cost of travel. 5 1 A. R. 957. 2 See Form, Appendix E, 11. 8 A. R. 958; Court-martial Manual, p. 37. 4 See Form, Appendix E, 12. 6 This reimbursement consists of the cost of travel, by the shortest usually travelled route, including transfers at not more than fifty cents each, and double berth in sleeping-car or steamer, and also cost of ATTENDANCE OF WITNESSES 109 A civilian not in the employ of the government duly sum- moned to appear before a court-martial is paid by the Pay Department. 1 216. Compensation to civilians, in or out of government employ, for attendance as witnesses at civil courts is payable by the civil authorities. 2 217. The fees of civilian witnesses, and the mileage of witnesses and fees of civil officers taking depositions, are paid by the Pay Department. 3 218. When a civilian witness, duly subpoenaed to appear before a court-martial, refuses to appear or qualify as a witness, or to testify or to produce documentary evidence, as required by law, he will at once be tendered or paid by the nearest paymaster one day's fee and mileage for the journeys to and from the court, and will thereupon be again called upon to comply with the requirements of meals not exceeding $3.00 for each day actually and unavoidably con- sumed in travel or in attendance upon the court, in cases where the court is sitting at a place which requires them to leave their stations. (A. R. 998.) 1 Such witness will receive $1.50 per day for each day actually in attendance upon the court, and 5 cents per mile for going from his place of residence to the place of trial or hearing, and 5 cents per mile for returning; but in Wyoming, Montana, -Washington, Oregon, Cali- fornia, Utah, New Mexico, Arizona, and Porto Rico he will be paid 15 cents for each mile necessarily travelled over any stage line or by private conveyance, and in Porto Rico 10 cents for each mile over any railway, in such travel. (A. R. 999.) 2 A. R. 1003. 3 The charges for return journeys of witnesses are based upon those allowed for travel to the court, and the whole amount due a witness is paid him upon his discharge from attendance without waiting for com- pletion of the return journey. (A. R. 1001.) The items of expenditure authorized are set forth in detail as part of the voucher for reimbursement, and their correctness attested by the affidavit of the witness, made, when practicable, before the judge- advocate. The certificate of the judge-advocate will be evidence of the fact and period of attendance of the witness, and this must be made upon the voucher. (A. R. 1002.) The voucher must also be accompanied by the original summons or a certified copy thereof. If there is no paymaster present at the place where the court sits, the account thus prepared and authenticated may be transmitted to any paymaster for payment. Blank accounts for civilian witnesses may be secured from the Paymaster-General or any army paymaster. 110 MILITARY LAW the law. 1 But the fees and mileage of a civilian witness residing outside the State, Territory, or District where the court is held will not be paid in advance, as such witness cannot be punished for refusal to obey the sum- mons. 2 219. An officer charged with serving a subpoena may pay fees and mileage to a witness upon whom he serves it, taking a receipt therefor, and be reimbursed the amount of the payment. 3 220. Where a witness resides outside the State, Territory, or District in which the court-martial sits, he may be subpoenaed, but cannot be compelled to attend; nor can he be punished for neglect or refusal to appear and qualify or testify under the provisions of the Act of March 2, 1902. But if he is subpoenaed and does attend, he will be paid his fees and mileage as provided for other witnesses. In cases where he does not attend his evidence may be taken by deposition. 4 But the attendance of a witness residing "within the State, Territory, or District" may be secured through the warrant of attachment issued by the judge- advocate. 221. Writ of Attachment. When a witness residing within the State, Territory, or District in which the court sits, who has been duly subpoenaed and tendered his mileage and at least one day's fees, neglects or refuses to appear before the court, the judge-advocate may issue like process to compel such witness to appear and testify, which courts of criminal jurisdiction within the State, Territory, or District where the court sits, may lawfully issue. 5 1 A. R. 1000; For provision for the punishment of a witness who refuses to comply with the requirements of the law, see ante, par. 72. 2 A. R. 1000. 3 Cir. 38, H. Q. A., 1901. 4 See Deposition, par. 251, post, et seq. 5 Sec. 1202, Revised Statutes. This process is the writ or warrant of attachment, and through it the witness may be brought before WRIT OF ATTACHMENT 111 222. When this process is issued to compel the attend- ance as witnesses of persons not in the military service, but residing in the State, Territory, or District in which the court sits, the judge-advocate will formally direct the same to an officer designated by the department commander to execute it, and the nearest military commander will furnish the necessary military force for the execution of the process, if force be required. 1 The officer designated to execute the process should also be furnished with the order convening the court, or a certified copy thereof, and with the original subpoena with the affidavit of service thereon. This subpoena is returned when the attachment is executed. 223. In the Philippine Islands. "Every person not belonging to the Army of the United States, who, in the Philippine Islands, being duly subpoenaed to appear therein as a witness before a general court-martial of said Army, wilfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce docu- mentary evidence which such person may have been legally subpoenaed to produce, shall be punished by a fine of not more than five hundred dollars, United States currency, or imprisonment not to exceed six months, or both, at the court-martial, such force only being used as may be necessary to bring him. The writ is headed by the name of the case, "United States v. ," is directed to the person who is to serve it by the words "The President of the United States to , Greeting," and states that, whereas the witness (naming him) has been duly subpoenaed to appear before a general court-martial convened by orders from legal authority to convene such court (giving the number and date of the order and the headquarters from which issued) on behalf of one of the parties in the case (stating which one) and that he has failed to appear and attend to testify as required by said subpoena, before said general court-martial, and that he is a necessary and material witness in the case, therefore, the judge-advocate by virtue of the power vested in him by Section 1202, Revised Statutes of the United States, commands and empowers said person named in the warrant to apprehend and attach said witness (naming him) wherever he may be found, and to bring him before the court to testify as required by said subpoena. The judge-advocate dates and signs the writ as judge-advocate of the court- martial. (See Form, Appendix E, 16.) 1 A. R. 959. 112 MILITARY LAW 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 person so offending: Provided, That one dollar and fifty cents, United States currency, for each day's attendance, 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 further, That no witness shall be compelled to incriminate himself or to answer any question which may tend to incriminate him." 1 224. Employees of the civil government of the Philip- pine Islands, paid from insular funds of the islands, are held not to be in the employ of the United States. 2 HABEAS CORPUS 225. Return to Writ of Habeas Corpus for Witness Held. An officer holding a civilian witness under a war- rant of attachment which he has been ordered to execute may be served with a writ of habeas corpus from a civil court alleging illegal restraint of said witness and direct- ing him to appear and produce the body of the witness before that court. 226. If the writ issues from a United States court or judge, it should be promptly obeyed, and the officer must present himself with the person he is holding before the court, and there make return to the writ, stating the authority under which he holds the witness, and his reasons for so holding him, at the same time exhibiting his warrant of attachment and the documents furnished therewith. 1 Court-martial Manual, p. 37, 38; Act Philippine Commission (No. 1130), 1904; Cir. 45, A. G. O., 1902. 2 Court-martial Manual, p. 37; Cir. 45, A. G. O., 1902; see Appen- dix E, 23. HABEAS CORPUS 113 227. If the writ of habeas corpus is issued by a State court 1 or judge for a civilian held by an army officer under writ of attachment, the officer will not produce the body of the witness held to be illegally restrained, but will make a respectful return to the writ, setting forth fully the authority by which he holds the person and allege that State authority is without jurisdiction to issue the writ of habeas corpus, and ask to have the writ dis- missed. He will also exhibit to the court or officer issuing the writ of habeas corpus, the warrant of attachment and the subpoena, with proof of service thereof, on which the warrant of attachment was based, and also a certi- fied copy of the order convening the court-martial before which he had been commanded to take the person. 2 228. Habeas Corpus for Enlisted Men or General Prisoners. If the writ of habeas corpus issued by a United States court or judge be served upon an officer requiring him to produce the body of an enlisted man or general prisoner before such court or judge, it must be promptly obeyed, and the officer must appear before the court, with the person named, at the time and place indicated in the writ, and make return thereto by stating the fact of enlistment, or the authority by which the general prisoner is held, setting forth fully therein the reasons for his restraint. He reports the fact of such service by tele- graph direct to The Military Secretary of the Army and the commanding general of the department. 3 Should the court order the discharge of the party, the officer making the return, or his counsel, should give notice of an appeal pending instructions from the War Department, and he will report to The Military Secre- tary the action taken by the court and forward a 1 See Appendix E, 24. 2 A. R. 1006. 3 A. R. 1008. 114 MILITARY LAW copy of the opinion of the court as soon as it can be obtained. 1 229. If the writ issue from a State court or judge, the officer must decline to produce in court the body of the person named in the writ, but will make a respect- ful return in writing, stating that the person held is a duly enlisted soldier in the service of the United States, or a general prisoner under sentence of court-martial, as the case may be, and is, therefore, held under color of authority of the United States, and that the Supreme Court of the United States has decided that a magis- trate or court of a State has no jurisdiction in such -a case. 2 A minor under the age of 18 years, who unlawfully enlists without the consent of his parent or guardian, cannot be discharged from the service on writ of habeas corpus sued out by such parent or guardian, so long as he is under arrest and being held on any charge cog- nizable by a military court, nor until he has been dis- charged from such custody, or has served the sentence imposed on him by the military tribunal. 3 IN THE PHILIPPINES 230. No writ of habeas corpus shall be issued against a military officer or soldier who is detaining a prisoner in any unorganized province or territory of the Philippine Islands. It shall be a conclusive answer to a writ of habeas cor- pus against a military officer or soldier, and a sufficient 1 G. O. 127, H. Q. A., A. G. O., 1900. 2 A. R. 1007. 3 In re Scott, 144 Fed. Rep. 79; U. S. v. Reaves, 126 Fed. Rep. 127; In re Morrissey, 137 U. S. 157. For forms and instructions as to returns to writs of habeas corpus and as to authorities, see Appendix E, 23-26, and G. O. 127, H. Q. A., A G. O., October 8, 1900; post, Chapter XXXI, Article 3, par. 710, "Minors." HABEAS CORPUS 115 excuse for not producing the prisoner in all organized provinces of the Philippine Islands, if the commanding general or any general officer in command of the depart- ment or district shall certify that the prisoner is held by him either : a. As a prisoner of war; b. As a member of the Army, a civilian employee thereof, or a camp-follower and subject to its discipline; but this paragraph shall not apply to pending cases (October 1, 1901); or c. As a prisoner committed by a military court or commission prior to October 1, 1901; or d. As a prisoner arrested and held for trial before a military court or commission before October 15, 1901, for a violation of the laws of war committed before the same date; or e. As a prisoner guilty of violations of the laws of war committed in an unpacified province or territory, and who has escaped into provinces officially declared to be under civil control and has been captured by military authorities and is held for trial for such violations of the laws of war. 231. Respectful return in writing will be made in the case of prisoners who may be exempted from jurisdiction by the provisions of the acts above cited, stating the facts of the case, but the body of the prisoner will not be produced. In all other cases the return will be made and the body produced before the proper tribunal. 1 1 Court-martial Manual, p. 71; Acts of Philippine Commission, Octo- ber 1, 1901, and June 23, 1902. CHAPTER XVI INTRODUCTION OF EVIDENCE DEPOSITIONS 232. Introduction of Evidence. All other pleas having been disposed of and the plea of /'not guilty" having been entered to all or any part of the charges and specifi- cations, the judge-advocate prepares to introduce the witnesses for the prosecution. He may, if he desires, precede their introduction by a statement of the case, restricted to the facts contained in the charges, and his proposed plan of introduction of the evidence, but not using this privilege to prejudice the court against the accused; and this statement should appear in full on the record. This method of opening the case is, however, seldom used except in the most important cases before military courts. 233. During the examination of a witness all other witnesses are, as a rule, excluded from the room, but the fact that a witness is called who has heard all or part of the evidence does not render him incompetent to testify, although it may affect his credibility. In case of a prose- cuting witness, who is also the accuser, he should be first examined and then may remain and, as accuser, assist the judge-advocate in conducting the prosecution. The judge-advocate or any member of the court may testify for either side if called, without affecting the validity of the proceedings. 1 When the judge-advocate is called 1 Dig. Op. J. A. G. 1667. 116 INTRODUCTION OF EVIDENCE 117 upon to testify the oath, taken by all witnesses (Article 92), is administered to him by the president of the court. 234. Experts. A witness who is an " expert" and whose testimony, being in the nature of an opinion, is or may be based upon that of other witnesses, may be permitted to hear their evidence. 1 When occasion arises for the employment of an expert witness in a trial before a general court-martial, the necessity for such employment should be made to appear by a resolution of the court, and the request for authority to employ, showing the cost of the services, will be submitted to the Secretary of War for approval in advance of the employment. 2 235. Credibility of Witnesses. The credibility of a witness is his worthiness of belief, and this is determined, in civil cases, by the jury from his manner of giving testimony; his interest in the case, if any; by comparison of his testimony with that of others; and then giving proper weight to his evidence. Courts-martial, legally exercising the functions which are performed separately by the judge and jury in civil cases, determine questions of both competency and credi- bility. 236. Competency of Witnesses. The competency of a witness is his legal ability to testify, and being a question of law is determined, in any particular case, in civil courts by the judge; in courts-martial by the court itself. Any objection to the competency of a witness should be made before he is sworn and the question determined by the court before he is permitted to testify. The objection to the competency of a witness should be made before exami- nation, if known, but it may be made in the course of the examination if only then discovered, and provided it is made as soon as it becomes apparent; it cannot be made 1 Davis' Military Law, p. 120. 2 Cir. 30, War Department, 1904. 118 MILITARY LAW after the witness has left the stand. 1 There are several grounds of incompetency at common law which justify objection, such as want of understanding, want of religious belief, infamy, etc. 2 237. The incompetency of the witness may be established by the testimony of other witnesses, or by putting him on his voir dire. In putting him on his voir dire the party doing so accepts him as a credible witness and the general rule of the authorities is that where the objecting party has done this he cannot afterward resort to the other method; though it would not preclude resort to the other mode to prove incompetency on another ground. 3 This oath, administered by the judge-advocate, is as follows: "You swear that you will true answers make to ques- tions touching your competency as a witness in this case. So help you God." The questions as to his competency asked by the party controverting it, those of the judge-advocate and of the court, if any, being answered, the court determines there- from the competency or incompetency of the witness. The entire proceedings, including the questions and answers and decisions of the court, should appear in full in the record. 238. Examination of Witnesses. Courts-martial follow the common law rules of evidence as applied by U. S. courts in the trial of criminal cases, 4 but they are not strictly bound thereby and may permit the introduction of evidence necessary to show the entire facts in the case, subject to the law providing that no witness shall be compelled to incriminate himself or to answer any question which may tend to incriminate or degrade him. 5 There being no 1 Am. and Eng. Encyc. of Law, 2d Ed., Vol. 30, p. 970. 2 See Evidence, post, par. 547 et seq. 3 Davis' Military Law, p. 261. 4 See post, par. 549. 5 Act March 2, 1901. INTRODUCTION OF EVIDENCE 119 objection to the witness, or, if objected to, his competency being sustained by the court, the judge-advocate adminis- ters to him the following prescribed oath: "You swear (or affirm) that the evidence you shall give, in the case now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God." 1 The attesta- tion, or act which makes the oath binding, may be in any form declared by the witness to be binding on his con- science. 2 239. During the administration of the oath the judge- advocate and the witness stand, both uncovered, the latter raising his ungloved right hand during it and signifying his assent at the close by the words, "I do " or "I do, so help me God," or, if he remains silent, his assent is understood. His name, rank, and regiment or corps, are then entered on the record, and he is first asked whether he knows the accused, or some question which will identify the latter in connection with the charges in the case. The questions of the judge-advocate then follow in an orderly and methodical series intended to develop all the facts and 'circumstances connected with the case in a clear and connected manner so far as the witness has knowledge of them. 240. These questions and answers are fully recorded and so far as possible the exact words of the answers to the questions are entered, in order that the court and the reviewing authority may understand the precise idea intended to be conveyed by the witness. Every member of the court should, if it is possible, hear the testimony that he may understand the full weight of the evidence as it appears from the words and manner of each witness. 241. Cross-examination. The direct examination, by the judge-advocate, being completed, he so announces and 1 Article 92. 2 See post, par. 615. 120 MILITARY LAW the accused is then entitled to cross-examine the witness, after which there may be a re-direct examination, and a cross-examination upon any new point brought out therein. 1 242. Examination by the Court. Upon conclusion of the examination of a witness by the parties to the case the court may, when necessary, ask questions to clear up doubtful points or to make plainer the evidence given, although it, or any member, with its assent, may ask a question for this purpose at any time. This being con- cluded and there being no further questions asked him, the witness is thereupon excused; but he may be recalled by either party for further examination or cross-examina- tion upon an application to the court to this effect being granted; or the court itself may direct him recalled. A witness recalled is not again sworn in the same case, but it is usual to warn him that he is still under oath as administered to him in the beginning. 243. Objections. Objections may be made by either party to any question asked, or to the admission of oral or written evidence on the ground that it is irrelevant, immaterial, improper, and inadmissible under the rules of evidence, being secondary evidence, hearsay, etc. 1 244. A question asked by a member of the court and ob- jected to will be recorded as " question by member" if the objection is sustained; if not sustained it becomes a " question by the court." The decision of the court as to whether a question shall be asked or not, or as to the in- admissibility of evidence, is final. 245. In making the objection the grounds upon which it is based must be stated; a simple statement of objection without giving the reason for it will not be sustained. If the question is not an important one, when objection is made, the court may determine it at once; but if there 1 See Evidence, Chapter XXIX, post, par. 547 et seq. INTRODUCTION OF EVIDENCE 121 is to be discussion concerning it, the court should be cleared, and its determination announced upon re-opening. 246. Both the judge-advocate and the accused may, after their examination has closed, submit a question to the court, and upon its assent to being put it is entered upon the record as a " question by the court." 247. If no stenographer is present all questions are written out in full and handed to the judge-advocate, who puts them to the witness and records the answers; if there is a stenographer for the court the examination may be conducted orally as in civil courts. 248. A Leading Question is one which embodies a ma- terial fact which may be answered by "Yes" or "No"; or one which assumes a fact which is in controversy, so that the answer thereto may really or apparently admit that fact ; or, in general, one which suggests the answer to the wit- ness. Such questions are not permitted except during cross-examination, or in case of a reluctant witness, or to refresh memory, etc. 1 249. Reading Over the Testimony. After all the testi- mony of a witness has been received and his examination has been completed it may be read over to him, if he desires to hear it, for purpose of correction or explanation of any point not clear; all such explanations should be entered in the record without expunging the original testimony. He is then permitted to retire. The judge-advocate then calls his next witness, and the trial proceeds with his examination as before. When his last witness has testified, and when the judge-advocate has produced all his evidence, he announces that "the prosecution here rests," and this is entered upon the record. 250. Sick or Absent Witnesses. Where a witness is sick and cannot attend, or is absent, the court may ad- 1 See Wigmore on Evidence, Vol. 1, Sec. 770, 771. 122 MILITARY LAW journ to such time as may be necessary to secure his attend- ance if he is a material witness. Should he be sick at the post, and the surgeon think him capable of testifying, the court may adjourn to his quarters and receive his testi- mony, the accused, his counsel and the judge-advocate being present with the usual right of examination and cross-examination. Where a witness resides outside the limits of the State, Territory, or District in which the court sits, his evidence may be obtained by deposition. DEPOSITIONS 251. "The depositions of witnesses residing outside 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 authenticated, may be read in evidence before such court in cases not capital." 1 252. A capital case is one punishable by death; in all cases, therefore, not so punishable, depositions may be taken under the above article. With the consent of both parties the deposition of a person residing within the State, Territory, or District in which the court sits may be taken and read in evidence; in such case a written stipu- lation as to the admission of the deposition, signed by both parties, should be attached to the deposition before the answers of the witnesses are taken. In capital cases, or in cases where the judge-advocate can certify "that the interests of justice demand that the witness shall testify in the presence of the court," the regular subposnas will be made out by the judge-advocate, certified to as above, if necessary, and transmitted to the 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 1 Article 91. See Chapter XXXI, post, par. 798. DEPOSITIONS 123 commander will be requested to order him, or cause him to be ordered, to attend before the court. 1 253. The deposition may also, by agreement, be taken before the meeting of the court, the interrogatories and cross-interrogatories being, in such case, signed by the judge-advocate and the accused instead of the president and judge-advocate; 2 or they may be taken "on reasonable notice to the other party," in which case they will be sub- ject to exceptions when read in the court. 254. The usual method of preparing the deposition is for the party desiring the evidence to prepare his list of inter- rogatories and submit them to the other party, who then prepares his cross-interrogatories; to these other inter- rogatories and cross-interrogatories may be added, if desired, and the whole is then submitted to the court, which may add such interrogatories as it deems necessary or proper; neither party can object when the court acts thereon, its decision in the matter being final. The docu- ment being duly prepared, the judge-advocate, if the wit- ness is a civilian, issues duplicate subpoenas as in the case of other witnesses. He does not, however, insert the time when, or the place where, the witness is to appear before the officer who is to take the deposition; these being filled in by the officer himself before the subpoena is served. Where the name of the officer who is to take the dep- osition is not known in advance it will be filled in by the convening authority, to whom the interrogatories are for- warded with the request that the deposition be taken, and who upon receipt thereof designates an officer for this purpose. 255. If the deposition of a military witness is required, subpoenas will not be enclosed with the interrogatories, 1 Court-martial Manual, p. 41. 2 Id., p. 39; Id., p. 170, note. 124 MILITARY LAW but the officer before whom the deposition is to be taken, or the officer who causes it to be taken, will direct the witness to appear at the proper time and place. 1 256. The oath may be administered to the witness by the judge-advocate of a department, or of a court-martial, or by the trial officer of a summary court. 2 Where none of these officials are available the oath should be taken before a notary public or other civil officer having authority to administer oaths for general purposes. 257. The deposition when completed is certified to by the officer designated to secure it, as duly made and taken under oath, 3 and is by him forwarded in a sealed package direct to the president of the court-martial. When re- ceived the entire deposition must be submitted in evidence; neither party has a right to withhold any part of it, but it must be received in its entirety. It is attached to the record, with a suitable reference mark in the body of the record, containing a statement of the fact, and of all actions taken with reference to it. 4 258. The witness making deposition is entitled to fees and mileage to the place of attendance and return, as in case of other witnesses. Upon receipt of the deposition it is the duty of the judge-advocate to certify the ac- count, stating the fact of attendance and period thereof, and to mail the accounts, with duplicate copies of the order convening the court, to the witness, who receives payment thereof from any army paymaster. 5 Persons before whom depositions of civilian witnesses are taken for use before courts-martial will be paid the 1 Court-martial Manual, p. 39, 2 Act July 27, 1892. 3 For Form, see Appendix E, 17.. These requirements having been complied with, the deposition will have been "duly authenticated " as prescribed by the law. 4 In foreign countries the only mode in which depositions can be taken is under a commission, duly authorized therefor. (Stein v, Bowman, 13 Pet. (38 U. S.) 209.) 5 See Forms, Appendix E, 18-20. DEPOSITIONS 125 fees allowed by the law of the place where the depositions are taken. 1 259. The deposition duly taken, under the 91st Article of War, on the part of the prosecution is not subject to objec- tion by the accused, and cannot be rejected by the court merely upon the ground that under the Vlth Amendment to the Constitution "in all criminal prosecutions the accused shall enjoy the right ... to be confronted with the wit- nesses against him." This constitutional provision has no reference to courts-martial; the " criminal prosecutions" referred to are prosecutions in the United States civil courts. 2 Affidavits taken ex parte and not as depositions under the 91st Article of War are in no case admissible as evi- dence unless expressly consented to by the accused with full knowledge of his rights. 3 260. Witnesses for the Def ense. Before introducing his witnesses for the defense the accused may desire time to prepare for it, and a reasonable delay is usually granted if it is requested for that purpose, not more than a few hours, or a day, being necessary if the witnesses are at hand. He may also precede the examination of witnesses by a statement of the case as he expects to prove it; but usually statements are deferred until the close of the trial. 261. His witnesses when introduced are sworn by the judge-advocate, who also asks their names that they may be correctly entered upon the record. Each witness is then examined by the accused, and cross-examined by the judge-advocate, questioned by the court, etc., the method of procedure being similar to that in case of a witness for the prosecution. 262. Finally the accused may ask to testify in his own be- half, and if he does so, the fact must be entered on the 1 Court-martial Manual, p. 40; Cir. 12, A. G. O., 1901. 2 Dig. Op. J. A. G. 272; Id. 1019. 3 Court-martial Manual, p. 45. 126 MILITARY LAW record that "the accused was then, at his own request/' duly sworn as a witness "in his own defense/' for the statute provides that at his own request, but not other- wise, he shall be a competent witness and that "his failure to make such request shall not create any presumption against him." l 263. If he does appear as a witness on his own behalf he is subject to cross-examination as any other witness, and to the rules governing the admission of evidence. Having voluntarily offered himself as a witness, he thereby becomes bound to submit to a proper cross-examination under the law and practice in the jurisdiction where he is being tried; 2 and is subject to impeachment like other witnesses. 3 264. A greater latitude is allowable in the cross-exami- nation of a party who places himself on the stand than in that of other witnesses. Still when the cross-examination is directed to matters not inquired about in the principal examination, its course and extent is very largely sub- ject to the control of the court in the exercise of a sound discretion, and the exercise of that discretion is not reviewable by the civil courts on a writ of error. 4 The accused, as he is not required to testify and need not go on the stand at all, must, if he take the stand, testify to all facts relevant to the case, and, in the absence of statutes restricting the cross-examination, he may be questioned as any general witness in the case. 5 He may be cross-examined on the whole case, and not simply on what relates to his examination-in-chief. 6 When the defendant becomes a witness he is made 1 Act March 16, 1878, 20 United States Statutes at Large, p. 30. 2 Spies v. Illinois, 123 U. S. 180. 3 Fitzpatrick v. U. S., 178 U. S. 316. 4 Rea v. Missouri, 17 Wall. (84 U. S.) 542; Davis v. Coblens, 174 U. S. 719. 5 Op. J. A. G., May 15, 1905. See Fitzpatrick v. U. S., 178 U. S. 315. 6 Wharton, Law of Ev., Vol. 1, Sec. 481; Winthrop, Vol. 1, p. 507; Jones on Evidence, par. 748, p. 1608; Spies v. Illinois, 123 U. S. 180. DEPOSITIONS. 127 competent for all purposes in the case, and if, by his own testimony, he can, if innocent, explain and rebut a fact tending to show his guilt, and he fails to do so, the same presumption arises from his failure as would arise from a failure to give the explanation by another witness, if in his power to give it. 1 He cannot, how- ever, be compelled to give answers which will incriminate him. 1 Rapalje, Law of Witnesses, Sec. 151; Stover v. People, 56 N. Y. 315. CHAPTER XVII DEFENSES ELEMENTS NECESSARY TO CONSTITUTE CRIME 265. Common Law Crimes. To constitute a crime under the common law, there must be some act follow- ing upon an unlawful thought or evil intent. An act and an evil intent must combine to constitute in law a crime, and generally, perhaps always, they must concur in point of time. 1 An evil intent is a necessary element of every criminal offense at common law, and when not susceptible of direct proof it is to be implied from the circumstances, and the criminal intent and overt act must concur in point of time. 2 Persons, therefore, incapable of entertaining such intent cannot incur legal guilt. This inability may arise from mental incapacity, as idiocy, lunacy, or the like, or "insanity" employed in the large sense as including the whole. 3 266. Statutory Crimes. In addition to the offenses at common law, there are acts declared criminal by express enactment of the law-making power, and which are, therefore, called statutory crimes. In these the criminality of the act, or of the omission, constituting the offense, does not depend upon any question as to whether or not it is malum in se, or morally wrong in itself; but it is an offense, if proved, because it is malum prohibitum, 1 Bishop's New Cr. Law, Sec. 206, 207. 2 Am. and Eng. Encyc. of Law, Vol. 8, pp. 284, 285. 3 See Bishop's New Cr. Law, Sec. 375, and note to Sec. 379. 128 DEFENSES 129 or one which is wrong because prohibited by law, and which may, or may not, involve moral turpitude. In statutory crimes intent may, or may not, be in- cluded in the law as a necessary element of the offense. If intent is an essential element, "lack of intent' 7 may be shown, as in other crimes. But where no intent, necessary to constitute the crime, is prescribed by statute, the act or omission, when proved, is criminal, without regard to the intent with which it was committed. In such cases only the act or omission need be proved. 1 The lack of intent, and the absence of criminal motive, may, however, be set up in defense before a court-martial, as a ground for mitigation or release from punishment. 267. Defenses. The term " defense" means a right possessed by the accused to place before the court every matter tending to defeat the accusation or any part thereof, and the form it takes varies with the form of the charges and the circumstances of the case. The court should allow great latitude to the accused in making his defense. He must, however, abstain from contemptuous or disrespectful language toward the court, or his superiors in rank, and coarse and insulting language toward others. But he may, for the purpose of his defense, impeach the evidence and motives of the wit- nesses and prosecutor, and charge other persons with blame and even criminality, subject, however, if he does so, to any liability to further proceedings to which he would otherwise be subject. The court may caution the accused as to the irrelevance of his defense, but should not, unless in special cases, stop his defense solely on the ground of such irrelevance. 2 268. As every crime under the common law consists of 1 See Article 60, Chapter XXXI, post, par. 767; also Sections 3618- 3652, 5357, 5483, 5488-5497, Rev. Stat. U. S. 2 Manual Military Law, War Office, England, 1894, p. 641. 130 MILITARY LAW two elements, intent and an act, if the intent is absent the act alone will not constitute the crime. The defense may, therefore, show lack of intent, and this may be done: a. When there is a complete or partial incapacity to commit crime through a defect of understanding. Under this class come such defenses as infancy, insanity, and drunkenness. b. Where the understanding is not defective, but the circumstances so control the will as to lead it to a wrong conclusion of fact. c. Where the will is constrained and the act compelled by force and violence. 269. i st. Incapacity through Defect of Understanding. Incapacity Resulting from Infancy. Since criminal capacity depends upon the understanding rather than the age, there can be no fixed rule which will operate justly in every possible case but, under the common law, and, in general, under the law of most States, a child under the age of seven years is conclusively presumed incapable of entertaining a criminal intent, and cannot commit a crime. Between the ages of seven and fourteen the pre- sumption still exists, but may be rebutted. After the age of fourteen he is presumed to have sufficient capacity, and must show affirmatively to the contrary. 1 270. Defect of Mind. Defect of mind as in idiocy, or imbecility resulting from some congenital defect or from some obstacle to the development of the faculties super- vening in infancy, is looked upon in law as an absence of all mind, precluding the possibility of forming an intent or conception of the consequences of an act. 271. Insanity. A person cannot be tried if he is insane, though he was sane when he committed the act, as he is 1 Clark's Cr. Law, p. 49; Davis' Military Law, p. 125; Wharton, Cr. Evidence, Sec. 801. DEFENSES 131 deemed incapable of conducting his defense; nor can an insane person be sentenced and punished, even after conviction. 1 Insanity may be the result of defective development of the faculties; as (a) idiocy or imbecility resulting from congenital defect or from an obstacle to the develop- ment of the faculties supervening in infancy; or (b) it may result from lesion of the faculties subsequent to their development resulting in (1) mania, mental or emotional, and either general or partial, or (2) in de- mentia consecutive to mania or injuries of the brain, or due to senility, peculiar to old age. 2 Insanity in the form of mania or dementia, either general or partial, arising from lesion of the faculties subsequent to their development, may be subject to lucid intervals, during which responsibility for crime will attach to the person, so that at that time he is responsible for his acts, while he may be irresponsible at other times. 272. Moral insanity is a defect or disease or, more prop- erly, a perverted condition of the moral system, where the person is mentally sane, and does not exempt one from criminal responsibility. 3 This condition is distinguished from irresistible impulse by the fact that the mind is not diseased as it is in the latter case. 4 Mere emotional insanity, or temporary frenzy or passion arising from excitement or anger and. not from any mental disease, is never an excuse for crime. 5 273. Test of Capacity in Case of Insanity. The true test of responsibility lies in the word " power"; has the accused the power to distinguish right from wrong, and 1 Clark's Cr. Law, p. 52; 4 Blackstone's Comm., p. 24; Bishop's New Cr. Law, Vol. 1, Sec. 396. 2 Bishop's New Cr. Law, note to Sec. 379. 3 Clark's Cr. Law, pp. 52, 58; Bishop's New Cr. Law, Vol. 1, Sec. 387. 4 Clark's Cr. Law, p. 55. 6 Id., p. 58. 132 MILITARY LAW the power to adhere to the right and avoid the wrong? If so he is responsible for the consequence of his act. 1 274. Every defendant is presumed in law to be sane and the burden of proving insanity, at the time of the commission of the act, as a defense, is held to lie upon the accused; and it is not sufficient merely to raise a reason- able doubt as to sanity, but the evidence upon that point must preponderate in favor of the accused, or be sufficient to satisfy the court of that fact. 2 275. Drunkenness. Temporary insanity, produced im- mediately by intoxication, does not destroy responsibility where the patient when sane and responsible made himself voluntarily intoxicated. 3 A person may, however, be so drunk when he commits an act that he is incapable, at the time, of entertaining the criminal intent which is the essential element of crime; especially is this true as to the intent to take life, or to commit larceny, or to pass counter- feit money. 4 This applies also to military offenses where specific intent is an element necessary to constitute the particular offense, such as desertion, disobedience of orders in violation of the 21st Article of War, mutiny, etc., pro- vided that the drunkenness occurred before the act and w r as such as to disqualify the accused from forming the intent necessary in each case. But where the intent to commit the crime was formed when the accused was in possession of his faculties, voluntary drunkenness will not excuse the offense. 276. Where a person is too drunk, when he commits an act, to entertain specific intent, essential in order that the act may constitute a particular crime, and did not first form such intent and then become intoxicated, he is not 1 Davis' Military Law, p. 126; Desty's Am. Cr. Law, Sec. 236, p. 62; Guiteau's Case, 10 Fed. Rep. 202. 2 State v. Quimby (R. I.), L. R. A. 322; see Guiteau's Case, 10 Fed. Rep. 202, note and references; Clark's Cr. Law, p. 59. 3 Wharton, Cr. Law, Vol. 1, Sec. 49. 4 Id., Sec. 52, 53. DEFENSES 133 responsible for that particular crime; it is otherwise how- ever if he makes up his mind to do an act, and then becomes intoxicated and commits it; he is then respon- sible. 1 277. The drunkenness to constitute a defense, or to be admitted in evidence, need not be caused by indulgence in spirituous liquor, but may be the result of the use of an intoxicating drug. 2 Drunkenness caused by morphine or other drug, pre- scribed by a medical officer of the Army or civil physician, may constitute an excuse for a breach of discipline com- mitted by an officer or soldier, provided that it quite clearly appears that this was the sole cause of the offense committed, the accused not being chargeable with negli- gence or fault in the case. 3 278. Presumption. The presumption in criminal cases is that the accused had capacity to commit the crime, and the burden of proof to establish that he did not lies with the defense. 279. 2d. Where the understanding is not defective but the circumstances so control the will as to lead it to wrong conclusion of fact. Ignorance or Mistake of Law. Ignorance of the law is no excuse; every person is presumed to know the law, and ignorance of it will not exempt any one from responsi- bility. This rule sometimes seems to be a hard one, but it is necessary, because otherwise offenders would plead it in every possible case. In particular cases, however, it is sometimes made a ground for recommendation to mercy or even to pardon. The General Orders and Regulations of the Army published are presumed to be known to all officers and persons in the military service, and they are 1 Clark's Cr. Law, pp. 62-63. See post, Chapter XXXI, Article 3^ par. 745. 2 Winthrop's Abr., 3d Ed., p. 112. 8 Davis' Military Law, p. 127; Dig. Op. J. A. G. 1234. 134 MILITARY LAW bound to take notice thereof; plea of ignorance of them will not avail to excuse offenses against them. 280. Ignorance or Mistake of Fact. Ignorance or mis- take of fact will, as a rule, be accepted as exempting from criminal responsibility, but to this there are exceptions, as where the intention with which the accused acted was unlawful, or where the ignorance or mistake is volun- tary or the result of negligence. 281. The ignorance of fact, to constitute a defense, must be an honest or innocent ignorance, and not an igno- rance which is the result of carelessness or fault; and, in military cases, it must appear not to have proceeded from any want of vigilance, or from failure to make inquiries or obtain the information called for by the obligations and usages of the service. 1 282. The wrongful intent being the essence of every crime, it follows that an act without fault or criminal carelessness by a person acting under mistake of fact, just as he would act if the facts were as he believed them to be, is not legally criminal, nor is a person criminally liable for an accident happening in the performance of a lawful act with due care; but if the accident happen while he is doing a criminal act he is responsible. So if a person intending to kill one person kills another, he is guilty of manslaughter or murder, according to the cir- cumstances; or if in doing a lawful act he fails to use proper care he is responsible. 283. Provocation will not excuse from criminal responsi- bility, though it may form ground for mitigation of the offense. 2 284. Burden of Proof. The burden of proof is on the party setting up the defense of ignorance or mistake of fact, to show it and its innocence, and that he was not 1 Winthrop's Abr. Military Law, 3d Ed., p. 110. 2 Clark's Criminal Law. Sec. 38, p. 72. DEFENSES 135 chargeable with either negligence or want of reasonable care in the performance of the act charged, 1 the prima facie presumption being that what one does is with knowledge of the facts and intentional. 2 285. 3d. Where the will is constrained and the act compelled by force and violence. Compulsion. Compulsion implies the doing of an act through force applied, or constraint of the will. No act can be criminal if it is impossible for a man to do other- wise. The force that is applied may be either actual or physical, or that of authority or fear. Where a man seizes the hand of another and uses it against his will to strike a blow no guilt attaches to the person so coerced; nor does it attach to a person committing an act under threats and imminent danger of instant death or grievous bodily harm. This defense would extend to any commander com- pelled by the officers and soldiers under his command to give up or abandon his garrison, fortress, or post under the conditions mentioned in the 43d Article of War. 3 286. Obedience to a legal order of a superior officer will constitute a complete defense. Where, however, the order of a superior seems to be illegal, in determining whether or not disobedience to it will be justified, it is held that the order must be obeyed " except in a plain case of ex- cess of authority where at first blush it is apparent and palpable to the commonest understanding that the order is illegal"; 4 and where the order does not expressly and clearly show its illegality on its face, the law should ex- cuse the military subordinate when acting in obedience to the orders of his commander. 5 1 Davis' Military Law, p. 129. 2 Bishop's Criminal Law, Vol. 1, Sec. 302-3. 8 Davis' Military Law, pp. 127-128. 4 Martin v. Mott, 12 Wheat. (25 U. S.) 19. 6 U. S. v. Clark, 31 Fed. Rep. 717; In re Fair, 100 Fed. Rep. 149. See Dig. Op. J. A. G. 1853. 136 MILITARY LAW 287. To justify, from a military point of view, a military inferior in disobeying the order of a superior the order must be one requiring something to be done which is palpably a breach of the law and a crime or an injury to a third person, or is of a serious character, not involving unimportant consequences only, and which, if done, would not be susceptible of being righted. An order requiring the performance of a military duty or act cannot be dis- obeyed with impunity unless it has one of these characters. 1 288. Married Women. Under the common law, when a married woman commits a crime in the presence of her husband, it is presumed that she did it under his coercion, but this presumption may be rebutted by evidence show- ing that there was no coercion. For the presumption to attach, the wife must have been in the immediate presence of her husband, or so near that he could have exerted his influence and control over her; she must have been in his actual or constructive presence. This presumption in the wife's favor will not, however, lie in case of murder, treason, or robbery, because these crimes show so much malignity as to render it improbable that she would be constrained by her husband, without the separate opera- tion of her will, into their commission. 2 289. Alibi. Another form of defense is the alibi. This is in its nature a rebuttal of the evidence against the accused and intended to prove the impossibility of the crime having been committed by him, for the reason that he was " elsewhere" at the time of its commission, and at such a distance, or under such circumstances, that it was impossible for him to have been present at the place and time of its commission. The burden of proof of establishing the crime and the connection of the accused with it remains with the prosecu- 1 Dig. Op. J. A. G. 23. 2 Bishop's New Criminal Law. Vol. 1, Sec. 361. DEFENSES 137 tion. The alibi may be established by a preponderance of evidence, and being fully established it is conclusive proof of the innocence of the accused. This is a very common form of defense in criminal cases, easily fabricated, and demands careful and scrutinizing investigation by the court before decision thereon. 290. The Statement. The evidence and argument on both sides having been submitted, the accused, or his counsel for him, may make such statement for the defense as may seem advisable. If there be no stenographer pres- ent, this should be submitted in writing and is attached to the proceedings, as should also be the reply of the judge- advocate, if any is made. Such statements are not evi- dence and should not be made under oath, since all evidence before the court must be introduced through wit- nesses subject to cross-examination, or by matter subject to investigation. In the practice of courts-martial prior to the enactment of the law which now authorizes an accused to testify in his own behalf, if he request it, the statement was the only way in which the accused could get before the court his own view of the facts, and matters of defense not appear- ing in the evidence. Since the law above referred to hub been in force, what the accused says in his statement, as to facts outside the argument it may contain based upon the law or the evidence, lacks the weight it might otherwh have, because of not being stated upon his oath, as i might be if he so desired. 291. Reply of the Judge-Advocate. In ordinary sim- ple cases a reply by the judge-advocate is generally not necessary. But in important cases, or where any question has arisen as to acts which, under the law, constitute the particular crime charged, or as to any point of law or evidence, or as to matter contained in the statement or argument for the defense which demands it, he is en- 138 MILITARY LAW titled to reply and to explain as he deems necessary and advisable. His remarks and conduct of the case, however, should be, as throughout the trial, entirely impartial, tending only to develop and make clear the actual truth concern- ing any matter in question. CHAPTER XVIII THE FINDING 292. The entire case having been concluded, both on the part of the prosecution and the defense, the court is then closed, the judge-advocate, reporter, accused, and his counsel, and all persons not members of the court retiring, and the court then proceeds to its finding upon the evi- dence submitted. The oath administered to the members (Article 84) requires them "to well and truly try and determine according to evidence" the matter before them, and this should be borne in mind in determining the finding. Any knowledge of the affair outside the evidence introduced, personal opinion, etc., cannot be permitted to enter into the determination of either the finding or sentence. Courts-martial are, in one sense, " courts of honor/ 7 and their object in any case under trial is to ascertain the whole truth of the matter. Technicalities, such as those sometimes used in civil criminal courts to secure the acquittal of a prisoner, should not be encouraged, but avoided in military practice. A conviction or an acquittal by a military court ought to be arrived at after a full examination of all evidence introduced, and a firm con- viction of the guilt or innocence of the accused based upon that evidence, and not upon argument by the parties or others with relation to technical points involved. 293. All members, whatever the rank of each, are 139 140 MILITARY LAW upon an equality in the discussions and deliberations of the court. The finding of the court should be governed by the evidence, considered in connection with the plea. Where no evidence is introduced, the general rule is that the finding should conform to the plea. But where the accused pleads guilty to the specification and not guilty to the charge, the court must determine whether the facts stated in the specification sustain the charge as a matter of law, and may find the accused guilty of both charge and specification. 1 294. In all criminal cases the presumption of innocence attends the accused and it requires evidence " beyond reasonable doubt" to convict of crime, but not beyond all doubt. "A. reasonable doubt is an honest substantial misgiving generated by the insufficiency of the proof. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or jury, and unwarranted by the testimony; nor is it a doubt born of a merciful inclination to permit the defendant to escape conviction, nor prompted by sympathy for him or those connected with him." "It is not a fanciful conjecture which an imaginative man may conjure up, but a doubt which reasonably flows from the evidence or want of evidence; a doubt for which a sensible man could give a good reason, which reason must be based upon evidence or want of evidence; such a doubt as a sensible man would act upon in his own concerns." 2 295. The finding upon the specification must support the charge. In the case of a specification drawn under any charge, a finding of not guilty of the specification will necessitate a finding of not guilty of the charge. Where, however, there are several specifications, properly drawn, the finding of guilty upon one of them, although "not 1 Dig. Op. J A. G. 1352. 2 Davis' Military Law, p. 141; U. S. v. Newton, 52 Fed. Rep. 290. THE FINDING 141 guilty" of all the others, will sustain the finding of guilty, on the charge. But if the finding on all the specifications be not guilty, or "find the facts as charged, but attach no criminality thereto," the finding upon the charge must be "not guilty." 296. When the accused pleads guilty to a charge and specification, or to the specification or charge with cer- tain changes therein, and the court finds the facts accord- ing to the plea, it is sometimes stated that the plea of the accused is confirmed and he is found "not guilty" of the excepted words but "guilty" of any substituted words, with a corresponding finding as to the charge; and these findings should be definitely stated. 1 297. Finding of Lesser Kindred Offense. The right and power of courts-martial to find not guilty of a par- ticular offense charged under a specific article of war, but guilty of a lesser kindred offense, under another article, has long been established, and is sustained by the highest judicial authority, but should not be em- ployed where the specific offense is established beyond a reasonable doubt. 2 This authority to find guilty of a minor included offense or to make exceptions or substitu- tions in the finding cannot justify the conviction of the accused of an offense entirely distinct in its nature from that charged. Where an officer, for example, is charged with "con- duct unbecoming an officer and a gentleman" under the 61st Article of War, the court may find the evidence as to the conduct stated in the specification insufficient to sustain that charge but yet sufficient to constitute "con- duct to the prejudice of good order and military disci- pline" under the 62d Article of War; and it may, there- 1 See par. 297. 2 Smith v. Whitney, 116 U. S. 183; Winthrop, Vol. 1, p. 544. 142 MILITARY LAW upon, find him guilty of facts in the specification sus- tained by the evidence, and not 'guilty of the charge of violation of the 61st Article of War, but guilty of conduct to the prejudice of good order, etc., in violation of the 62d Article of War. But the reverse of this can- not be done; an officer charged under the 62 d Article of War with " conduct to the prejudice of good order/' etc., cannot be found "not guilty" of that charge, but guilty of " conduct unbecoming an officer and a gentleman" under the 61st Article. Nor can a conviction of a capital offense be made under a charge drawn as violation of the 62d Article of War, since it only covers cases not capital. In each of these cases the punishment would be greater than that authorized under the original charge, whilst, to justify the charge, the finding must be of a lesser included offense. Of this form of verdict the most familiar" is the find- ing of guilty of absence without 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 with- out leave from" and "without leave," pronouncing him innocent of the excepted words and guilty of the sub- stituted words, respectively. 1 The finding upon the charge should regularly be "not guilty, but guilty of absence without leave, in violation of the 32d Article of War. " 2 298. Where a charge is laid under the general article (62), a finding under any other article, or, where a charge is laid under a specific article, a finding under any other specific article, would be illegal, 3 except as instanced, in the preceding paragraph, in the case of the 47th and 32d 1 See ante, par. 296. 2 Court-martial Manual, pp. 45. 46. 3 Id. THE FINDING 143 Articles of War. The finding under the latter article being upon a charge under Article 47 is permissible, because " absence without leave" under Article 32 is a necessary element, a minor included offense of the absence without leave, which enters into the offense of desertion, under Article 47. 299. In exceptional cases of acquittal, where circum- stances justify it, courts-martial sometimes use the words "fully" or " honorably" or "fully and honorably" acquit the accused. But such occasions seldom arise, and the use of those words is intended to relieve the accused of any suspicion of wrong that might attach through his being brought to trial. 300. The court, in addition to its findings, may also comment upon the charge as malicious or not well founded and may criticize the action of the accuser or prosecutor, or comment upon the improper conduct of a witness, the judge-advocate or the counsel; and, when occasion justi- fies it, may reflect upon the state of discipline of a com- mand as disclosed by the evidence, with a view to correc- tion thereof by the proper authority. But such remarks should always be justified by the circumstances as dis- closed in the record of proceedings. CHAPTER XIX PREVIOUS CONVICTIONS 301. Whenever a soldier is convicted of an offense for which a discretionary punishment is authorized, courts- martial will receive evidence of previous convictions, if there be any. 1 They will, however, consider only such evidence of previous convictions as is referred to them by the con- vening authority. 302. It is provided by Act of September 27, 1890, that " whenever by any of the Articles of War for the govern- ment of the Army the punishment on conviction of any military offense is left to the discretion of the court- martial, the punishment therefor shall not, in time of peace, be in excess of a limit which the President may prescribe." Provision has been made in the order of the President, dated June 19, 1905, prescribing "limits of punishment," for the consideration of "previous convictions." when there has been a finding of guilty in such cases. This order being operative only in time of peace, courts-martial, in time of war, revert to their original discretionary powers. 303. By "previous conviction" is meant a conviction where the sentence has been approved by competent au- thority. It is to be noted that where the post commander, being the only officer present, sits as a summary court, no 1 A. R. 970; Executive Order, G. O. 96, War Department, 1905. 144 PREVIOUS CONVICTIONS 145 further approval of the sentence is required by law. 1 When the findings and sentence of a court-martial have been disapproved by the proper reviewing authority, evidence of such previous conviction is not admissible. 2 304. The order of the President establishing the limits of punishment applies to " enlisted men" only. It does not apply to trials of officers or cadets. 305. All charges against an enlisted man, forwarded to the authority competent to order a general court-martial for his trial, must be accompanied by a statement in the prescribed form, setting forth the date of his present and former enlistments, the character upon each of the dis- charges given him, with the date of his confinement for the offense alleged in the charges, together with the proper evidence of previous convictions. Charges submitted to a garrison or regimental court-martial must be accom- panied by the proper evidence of previous convictions. 3 Charges submitted for trial by a summary court should be accompanied by evidence of previous convictions, to be furnished, when practicable, by the officer preferring the charges; or, if the evidence of previous conviction is contained in the summary court record, a reference to it will be sufficient, and, if this evidence is not submitted or cited, the summary court may take judicial notice of any such evidence which that record contains. 4 306. The evidence of previous convictions is limited, except in case of previous convictions of desertion, on a trial for desertion, to convictions by courts-martial for an offense or offenses committed within one year preceding the date of commission of any offense charged and during the current enlistment. 5 These convictions must be proved 1 Court-martial Manual p. 46, note. 2 Dig. Op. J. A. G. 2052. 3 A. R. 961, 963; G. O. 96, War Department, June 19, 1905, Article III, Sec. 1. 4 A. R. 963, 6 See Go O. 96, War Department 1905, Article III, Sec. 1, 5. 146 MILITARY LAW 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. 1 307. On a conviction of desertion, evidence of convic- tions of previous desertions may be introduced, irrespec- tive of the enlistment or of the period which may have elapsed since such conviction or convictions. 2 Previous convictions of other offenses may be introduced as ex- plained in the preceding paragraph. 308. The proper evidence of previous convictions by a summary court is the copy of a summary court record furnished to company and other commanders, as required by par. 964, Army Regulations, or one furnished for the purpose, and certified to be a true copy by the post com- mander or adjutant of the post where the original record of trial by summary court is kept. 3 When it is impractic- able to obtain copies certified by the adjutant or command- ing officer of the post where the trial is held, the copy furnished the company commander should be forwarded with the charges and read to the court in evidence. This copy, belonging to the company or other commander, if furnished, must be returned to him after being presented before the court, a copy of it being attached to the record of the court. 309. Previous convictions submitted must be con- victions by military courts; convictions by civil courts will not be received or considered. They are not, however, limited to convictions of offenses similar to the one for which the accused is being tried, the object of their submission being to see if the prisoner is an old offender, and therefore less entitled to leniency than if 1 G. O. 96, War Department, June 19, 1905, Article III, Sec. 1; A: R. 970. 2 G. O. 96, War Department, June 19, 1905, Article III, Sec. 5. A.R.970. PREVIOUS CONVICTIONS 147 on trial for his first offense. They have no bearing upon the question of guilt of the particular charge on trial, but only upon the amount and kind of punishment to be awarded. 1 The statute of limitations does not, therefore, apply to them on their introduction. The evidence of previous convictions having been re- ceived, the court is again closed and proceeds to award its sentence Court-martial Manual, p. 47. CHAPTER XX SENTENCE AND PUNISHMENT 310. When the jurisdiction of a military court has attached, this includes the power to hear and determine the case, and to award the sentence. 1 The sentence being awarded and approved, it is the duty of the reviewing authority to execute or enforce it, or to forward it to the authority having power to execute or enforce it. If the accused be found not guilty he is acquitted. If, however, he has been found " guilty" by vote of the court, and the evidence of previous convictions has been received, the court is thereupon closed and proceeds to award its sentence. When the conviction is upon a charge drawn under an article of war carrying a mandatory punishment the sentence therein prescribed is the only one that can be awarded. But if the sentence is left to the discretion of the court it is only limited by such dis- cretion and by the order of the President prescribing the limits of punishment in such cases. 2 311. In such cases of discretionary punishment the members of the court, or so many of them as desire to do so, prepare sentences in writing considered by them as adequate to the offense, and submit them to the presi- dent, who reads them to the court after all are submitted, and then proceeds to take the vote thereon beginning 1 Carter v. McClaughry, 183 U. S. 383. 2 See G. O. 96, War Department, 1905; ante. par. 304, and post, par 325, 148 SENTENCE AND PUNISHMENT 149 with the mildest sentence, which, if lost, is followed by the next mildest and so on till one is found to which a majority of the members agree. 1 312. The death sentence can only be given in the cases expressly provided in the Articles of War, or by Sec. 1343, Revised Statutes, and requires concurrence of two-thirds of the members of the general court-martial, as prescribed by the following article: Article 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. As to the responsibility of members in voting on the sentence who have noted "not guilty" on the finding, see post, Chapter XXII, par. 375. 313. Sentence to Penitentiary. Usually persons con- victed by courts-martial are punished, when sentenced to confinement, in military prisons or post guard-houses, but provision has been made by law for punishment, by con- finement in a penitentiary, of military offenders who have committed offenses which are also recognized as crimes in civil law; but they must be of a character recognized as crimes punishable by such law. Article 97. No person in the military service shall, under the sentence of a court-martial, be punished by confinement 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, Ter- ritory, or District, subject such convict to such punish- ment. 2 This article does not prescribe the degree of punish- 1 In case of a tie vote, see post, par. 376. 2 See Art. 97, post, par. 804. 150 MILITARY LAW ment to be awarded as does Article 58; it may be greater or less than that provided by the statutes of the State, Territory, or District, but its character is such as, under those statutes or laws, would subject a person convicted of the offense to confinement in a penitentiary. 314. Before sentencing a person convicted of a crime to a penitentiary the court-martial must, therefore, examine the laws of the United States, and of the State, Territory, or District in which the offense was committed, to determine whether such punishment is authorized thereby; and whenever there is any doubt in the mind of the court as to whether it is so punishable the sen- tence to confinement should include such words as "in such place as the reviewing authority may direct." 1 The sentence, to authorize confinement in the United States Penitentiary, at Fort Leavenworth, must be one imposing confinement for "more than one year." 2 315. Department commanders will designate the United States Penitentiary at Fort Leavenworth, Kansas, as the place of execution of such sentences where the term of confinement is for more than one year, or, with the approval of the Secretary of War, may designate a penitentiary within the military department if in any State or Territory within the department provision has been made by law for the confinement of such prisoners in its penitentiaries. 3 316. Provision is also made for the trial of certain offenses in time of war, insurrection, or rebellion, by courts- martial and the awarding of punishment, which shall not be less than that provided for like offenses by the laws of the State, Territory, or District in which these occur. Article 58. In time of war, insurrection or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding, 1 A. R. 973. 2 A. R. 974. 3 A. R. 974. SENTENCE AND PUNISHMENT 151 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 sentence of a general court-martial, when committed by persons in the mili- tary 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. 1 The limitation herein made is that the punishment shall not be less than that provided by the laws of the State, etc., but there is no limitation upon the awarding of a punish- ment in excess of that provided by those laws. It may sometimes be necessary, in time of war and public danger, to award more severe punishment to persons in military service in order to preserve discipline and assure safety of the inhabitants. 317. Sentence to Military Prison. For offenses purely military in character, such as desertion, disobedience of orders, and the like, offenders cannot be sentenced and punished by imprisonment in a penitentiary, but must serve the confinement awarded in a military prison or post guard-house. For all simple misdemeanors and offenses not serious in nature, where the offenders have not been sentenced to dishonorable discharge, they are usually sentenced to confinement at hard labor under charge of the post guard, and are called " garrison pris- oners." But where the offense is such that " dishonor- able discharge" is awarded as well as confinement in a penitentiary or at a military post, such persons become " general prisoners," 2 and where the period of confinement to which they are sentenced is six months or more they are sent to certain posts designated by the Secretary of War. In such cases, or those involving long imprison- ment, the sentence may read "to be confined in such 1 See Art. 58, post, par. 765 2 A. R. 935 152 MILITARY LAW place as the reviewing authority may direct/ 7 for the fixed period of punishment. 1 318. Date Sentence Takes Effect. The date upon which a sentence becomes effective is that of the action of the reviewing authority unless another date is specified. In case of dishonorable discharge from the service, how- ever, it becomes effective when the order promulgating it has been received at the place where such sentence is to be executed. 2 When the date for the commencement of a term of confinement is not expressly fixed by the sentence, the term of the confinement begins on the date of the order promulgating it, which should, if practicable, be of the same date as the action of the reviewing authority. If the action of the reviewing authority and the order promulgating the sentence are not of the same date, the date of his action will be stated in the order and that will be the date of the beginning of the sentence. 3 The sentence is continuous until the term expires, except when the person sentenced is absent without authority. 4 319. The word " month " or " months " when employed in a sentence is to be construed as meaning a calendar month or months. 5 The word " imprisonment," as used in the 60th Article of War, was not employed in a technical sense to signify imprisonment at a military post without hard labor, but has a broader signification, and empowers a court-martial to sentence a person in the military service to imprisonment at hard labor, or to a penitentiary where hard labor is a part of the discipline, where the offense of which he is convicted is one for which the civil tribunals could impose a like sentence. 6 1 See A. R. 973. The U. S. Military Prison, for military prisoners, and the U. S. Penitentiary, for convicts, are both established at Fort Leaven worth, Kansas, and are under separate administration. 2 Dig. Op. J. A. G. 1155. 3 A. R. 978. 4 A. R. 977. 6 Dig. Op. J. A. G. 2319. 6 In re Langan, 123 Fed. Rep. 132. SENTENCE AND PUNISHMENT 153 320. Confinement after Expiration of Enlistment. The sentence may extend beyond the period of enlistment, but no sentence of a court-martial can extend the term cf service of a soldier under his enlistment contract beyond the term for which he enlisted. In case, therefore, of a sentence which, without discharging the soldier, runs be- yond his term of enlistment the soldier's discharge should be made upon the date that he is entitled to it, but it will not be delivered to him but held by the authorities of the prison where he is serving his confinement until his dis- charge therefrom. 321. In all cases where discharge and confinement are united in a sentence it is always advisable to sentence the prisoner first to be discharged and then to be confined for the period designated. This relieves his immediate commander from carrying him longer on the rolls and enables the prisoner to be replaced by a man who can be called upon for the performance of military duties. 322. Sentence in Excess of Law. Where a court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such part of it as may be in excess open to question and attack. 1 In case of excessive sen- tence, so much as is legal may be approved by the review- ing authority and duly executed. 2 And where punishment is adjudged upon conviction of the accused on several charges, it is valid and operative provided that it is a punishment legally imposable on conviction of any one of the charges of which the accused has been duly con- victed. 3 323. The sentence awarded by a court-martial, if within 1 U. S. v. Pridgen, 153 U. S. 49. 2 Dig. Op. J. A. G. 1651. Id. 2311; Carter v. McClaughry, 105 Fed. Rep. 614; Id., 183 U. S. 386. 154 MILITARY LAW legal limits, is wholly within its own discretion. The court cannot be directed as to what its sentence shall be, though the reviewing authority may return it for revision as inadequate or improper; but his power ends there and he cannot compel the court to change its sentence in opposition to its own judgment. 324. Reconsideration. The court may, however, re- consider and change its sentence at any time so long as its record of the case is within its own possession before being forwarded, or when it has been returned to it for revision or further consideration. CHAPTER XXI PUNISHMENTS 325. The punishments to be awarded on conviction of military offenses are either mandatory or discretionary. Where they are mandatory in the Articles of War and in Sec. 1343, Revised Statutes, no other than the prescribed punishment can be given; it can neither be lessened nor increased by the court. Certain articles of war, however, prescribe that the accused upon conviction " shall suffer such punishment as the court may direct." This leaves the matter of pun- ishment in the discretion of the court except where re- stricted by the Executive Order prescribing the limits of punishment, authority for which is conferred upon the Presi- dent by Act of Congress of September 27, 1890, and where not so restricted they are governed by the customs of the service as applicable to each case within the discretion of the court. The court should always take into account the fact that the object of punishment is not to take ven- geance for the deed but to prevent crime and the repetition of the offense by the offender and to deter others from similar acts. The law under which the President prescribes the maximum limit of punishment provides "that whenever by any of the Articles of War for the government of the Army the punishment on conviction of any military offense is left to the discretion of the court-martial the punishment therefor shall not, in time of peace, be in 155 156 MILITARY LAW excess of a limit which the President may prescribe." 1 The Executive Order is published by the War Depart merit, 2 and is applicable to enlisted men only. 3 FORMS OF PUNISHMENT 326. Of the punishments recognized as proper to be imposed, some forms may be awarded to either officers or enlisted men; some are appropriate for officers only, and others for enlisted men only. For Officers. The punishments that may be awarded officers, " 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, 4 im- prisonment, fine or forfeiture of pay, reprimand, and con- finement to limits of the post or reservation." 327. For Enlisted Men. "The legal punishments, de- pending on the character of the offense and the jurisdic- tion of the court," which may be given to enlisted men "are death, confinement, confinement on bread and water diet, solitary confinement, imprisonment at hard labor, ball and chain, forfeiture of pay and allowances, dishonor- able discharge from the service, and reprimand; for non- commissioned officers, reduction to the ranks also; and for candidates for promotion, deprivation of all rights and privileges arising from a certificate of eligibility"; 5 and for first-class privates reduction to second-class pri- vates. 6 1 Act September 27, 1890. 2 G. O. 96, War Department, 1905. 3 Carter v. McClaughry, 183 U. S. 365. 4 The ''loss of rank" as here used actually means "loss of files." The sentence, in such case, usually prescribes a loss of files, so that the name of the accused shall appear next below that of some given name as it appears in the list of officers of that grade in the Army Register. 5 Court-martial Manual, p. 48. G. O. 96, War Department, 1905, Article III, Sec. 7. PUNISHMENTS 157 328. Death. This sentence may be awarded to either officers or enlisted men in cases provided by law; but no person can be sentenced to death except in cases expressly mentioned in the Articles of War, or in cases of spies as specified in Sec. 1343, Revised Statutes United States, as so punishable. The manner of inflicting the punish- ment of death (except for offenses purely military) is by hanging; 1 and this is the proper method of execution of a sentence when given for offenses under the 58th Article of War. Death by hanging is looked upon by military persons as more ignominious than death by shoot- ing, and is the usual method of execution designated in case of spies, or persons guilty of murder in connection with mutiny, or, sometimes, for desertion in the face of the enemy; but for a purely military offense like a sen- tinel sleeping on his post, such sentence when imposed is usually "to be shot to death with musketry." For the sake of the example and to deter others from like offenses these sentences are executed in the presence of the troops of the command, assembled to witness them. 329. A court-martial, in imposing the sentence of death, should not designate the time and place for its execution, such designation not being within its province, but per- taining to that of the reviewing authority. If it does so designate, this part of the sentence may be disregarded, and a different time and place be fixed by the command- ing general. 2 If the designated day passes without exe- cution the same authority, or his superior, may name another day, the time of execution being an immaterial element of this punishment. 3 330. The sentence of death is mandatory under the 57th Article of War against all persons belonging to the armies of the United States, in time of war or rebellion, who force a safe-guard. 1 Sec. 5325, Revised Statutes. 2 Dig. Op. J. A. G. 286. s Id. 287, 158 MILITARY LAW A safe-guard is a protection granted to persons or property within the theater of military operations. This protection may consist in a guard composed of one or more soldiers, usually furnished with a paper, signed by the commanding general and his adjutant-general, naming the persons or property to be guarded and commanding all officers and soldiers to respect this safe-guard and, if necessary, to protect such persons or property; but this document, fully and exactly describing the persons and property it is intended to safe-guard, and stating a limit of time for which it is to be held good, may be posted upon the property or be delivered to the party whose person, family, or property it is intended to protect, and when so held it is equally valid. Violation of a safe-guard is a most serious offense against discipline, being a wilful disobedience of the orders of the commander. 331. Several articles of war l prescribe the death penalty for offenses committed thereunder, but permit modifica- tion thereof by the court ; these are as follows : for strik- ing, drawing or lifting up a weapon, or offering violence against his superior officer, or disobeying his lawful com- mand; 2 beginning, exciting, causing, or joining in a mutiny or sedition ; 3 being present at any mutiny or sedition, and not endeavoring to suppress the same, or having knowl- edge that mutiny or sedition is intended, and not inform- ing his commanding officer thereof; 4 a sentinel sleeping upon his post; 5 occasioning false alarms; 6 misbehavior before the enemy or abandoning fort, post, or guard; 7 compelling a commander to surrender; 8 making known 1 See Chapter XXXI, post, par. 705 et seq. 2 Art. 21. See post, par. 728. 3 Art. 22. See post, par. 729. 4 Art. 23. See post, par. 730. 5 Art. 39. See post, par. 746. 6 Art. 41. See post, par. 748. 7 Art. 42. See post, par. 749. 8 Art. 43. See post, par. 750, PUNISHMENTS 159 the watchword, or giving a parole or watchword different from that which he received; 1 relieving the enemy, or knowingly harboring or protecting him; 2 holding corre- spondence with or giving intelligence to the enemy ; 3 desertion in time of war; 4 doing violence to persons bringing provisions or other necessaries into camp, garrison, or quarters of United States forces in foreign parts. 5 The sentence of death, though it cannot be mitigated, i.e., reduced in amount or quantity, may be remitted or commuted by the President. 6 332. Dismissal. 7 This sentence is appropriate for officers and cadets only, and is not awarded to enlisted men; in their cases separation from the service through trial by court-martial is effected by sentence to " dis- honor able discharge." The sentence of dismissal is mandatory upon conviction of an offense under certain articles of war, as in case of receiving money or other things for mustering, etc.; 8 false muster; 9 false returns; 10 false certificate; n wilfully losing, spoiling, or damaging military stores; 12 laying duty or im- position upon, or having an interest in, sales of articles for the use of soldiers; 13 sending or receiving challenges to fight a duel; 14 suffering a person to go forth to fight a duel, or acting as second or promoter thereof; 15 drunkenness 1 Art. 44. See post, par. 751. 2 Art. 45. See post, par. 752. 3 Art. 46. See post, par. 753. 4 Art. 47. See post, par. 754. 5 Art. 56. See post, par. 763. 6 Dig. Op. J. A. G. 341. 7 See Chapter XXXI, post, Art. 106, par. 813. 8 Art. 6. See post, par. 713. 9 Art. 5 and Art. 14. See post, par. 712 and 721. 10 Art. 8. See post, par. 715. 11 Art. 13. See post, par. 720. 12 Art. 15. See post, par. 722. 13 Art. 18. See post, par. 725. 14 Art. 26. See post, par. 733. 16 Art. 27, 28. See post, par. 734, 735. 160 MILITARY LAW on duty; 1 knowingly receiving or harboring a deserter; 2 refusing or neglecting, except in time of war, to deliver an accused officer or soldier to a civil magistrate for an offense against the laws of the land, or to assist in appre- hending him; 3 conduct unbecoming an officer and a gentleman; 4 breach of arrest. 5 This sentence may also be awarded in cases not man- datory but where the sentence is discretionary with the court. 333. A legal sentence of dismissal, duly confirmed and executed, separates the officer or cadet entirely from the service, and is beyond the reach of the pardoning power; the person dismissed can only be restored to the service by a re-appointment, and, in case of an officer, subse- quent confirmation by the Senate. 6 334. While this sentence cannot be mitigated it is subject to commutation by the President. It may be commuted to suspension, loss of files, or other punish- ment less severe than dismissal, in case of officers, or suspension in case of cadets; and in case of enlisted men " dishonorable discharge" maybe commuted by forfeiture of pay. "The power to remit or commute sentences of death and dismissal remains with the President" and can- not be exercised by the military commander. 7 335. Summary Dismissal. In time of peace no officer shall be dismissed except in pursuance of the sentence of a general court-martial, or in mitigation thereof. 8 In time of war, however, the President has the power to summarily dismiss an officer, but in such case the officer 1 Art. 38. See post, par. 745. 2 Art. 50. See post, par. 757. 3 Art. 59. See post, par. 766. 4 Art. 61. See post, par. 768. 5 Art. 65. See post, par. 772. 8 See Sec. 1228, Rev. Stat. U. S. 7 Dig. Op. J. A. G. 341. 8 Art. 99. See post, par. 806; Sec. 1229, Rev. Stat. U. S, PUNISHMENTS 161 is authorized to make application, within reasonable time, for trial by court-martial, which the President shall con- vene as soon as the necessities of the service permit, and if such court is not convened within six months from the presentation of the application, or when convened it does not award dismissal or death as the punishment, the order of dismissal is void. 1 Dismissal does not attach any legal disability to the person dismissed, and he is not dis- qualified from re-appointment to the Army or from en- listing as a soldier or from holding civil office under the United States, except where specifically disqualified there- from by law. 2 336. Cadets found guilty of participating in, or en- couraging or countenancing, hazing at the United States Military Academy shall be summarily expelled from the Academy; and any cadet convicted of such offense shall not thereafter be re-appointed to the corps of cadets or be eligible for appointment as a commissioned officer in the Army, or Navy, or Marine Corps, until two years after the graduation of the class of which he was a member. 3 337. Suspension. Suspension may be from rank, com- mand, or duty, and pay and allowances, or from either or from all of them. It is applicable to officers only, and not to non-commissioned officers among enlisted men. 4 Suspension from rank and command does not deprive the person sentenced of pay and allowances unless that for- feiture is specifically stated in the sentence; nor does it involve a condition of arrest or confinement. 338. Suspension from Rank. This sentence includes suspension from command, and, while it does not deprive 1 Revised Statutes U. S., Sec. 1230. 2 Dig. Op. J. A. G. 1201. See post, Art. 14, par. 721, and Art. 106, par. 813. 3 Act March 3, 1901. 4 Dig. Op. J. A. G. 2423, note. 162 MILITARY LAW the person of his office, and he remains subject to military control, he is entirely cut off from any promotion to which he may become entitled during the period of his suspen- sion; but it does not deprive him of the right to gain files in his own grade. An officer under suspension has the same right to quarters as when on duty status, if present at the post. 1 339. Suspension from Command. This is included in " suspension from rank" but may be awarded separately, and "when a court-martial suspends an officer from com- mand it may also suspend his pay and emoluments for the same time." 2 340. Pay and Allowances. Any forfeiture or suspen- sion of pay or allowances must be specifically stated in the sentence, without which they cannot be forfeited. All forfeitures accrue to the United States, and cannot be appropriated to settle indebtedness to individuals or for the benefit of other parties. 3 341. Loss of Relative Rank, or Files. This punish- ment is applicable to officers only. It becomes effective on the approval of the reviewing authority, not requiring confirmation by the President, and deprives the officer of the rights and privileges of his original rank. As its effect continues until the sentence is remitted it is a continuing punishment. Promotion of such an officer would be equivalent to a pardon, but his pardon, after promotion, would not restore him to the position he had previously held relative to others already promoted, nor divest others of the rights acquired by promotion during the pendency of his reduction. That part of his sentence has been fully executed and is therefore beyond the reach of the par- doning power. 4 1 A. R. 1040. 2 Art. 101. See post, par. 808. 3 See Forfeitures and Stoppages, post, par. 351-357. Dig. Op. J. A. G. 1632. PUNISHMENTS 163 342. Imprisonment. Imprisonment may be awarded as a punishment for either officers or soldiers, but to officers only on conviction of most serious crimes and in connection with the sentence of dismissal to be followed by confinement. But where a fine is imposed as a penalty under the 60th Article of War the sentence may also im- pose a certain period of confinement, or a continuation of any imprisonment otherwise awarded, not to extend be- yond a term stated in the sentience, for the purpose of en- forcing payment of the fine unless the fine is paid prior thereto. 343. When a sentence inflicts the penalty of dismissal of an officer, or the dishonorable discharge of a soldier, with imprisonment, that part of the sentence imposing dismissal or discharge should precede that part relating to his confinement, so that the accused shall first be dis- missed or discharged, and " thereafter" be confined for the period stated; and where "hard labor" is intended it should be stated in the sentence; "hard labor" being a distinct punishment, which must be specifically awarded. The term of the imprisonment must also be given in the sentence. 344. Officers or soldiers may be sentenced to imprison- ment in a penitentiary, but the offense of which such per- son is convicted must be one so punishable upon conviction thereof, under the laws of the United States, or of the State, Territory, or District in which the offense was committed, as provided by the 97th Article of War. Where the sen- tence is for a year or less, the U. S. Penitentiary is not available as a place for its execution. 1 345. If a prisoner is sentenced to a penitentiary he be- comes subject to all the rules and discipline prescribed by law for the institution, including those which require labor, though labor may not have been specified in the sentence. 1 See ante, par. 313 and A. R. 974. 164 MILITARY LAW But in prisons other than penitentiaries a prisoner sen- tenced to imprisonment without "hard labor" being in- cluded in the sentence cannot properly be put to unusual labor of a severe and continuous character; but he may be required to perform the ordinary domestic or police work directed by the sanitary regulations of the prison. 1 346. Solitary Confinement. In addition to imprison- ment there may be given, as punishment for enlisted men only, solitary confinement, or solitary confinement on bread and water diet. Such confinement is limited to fourteen days at one time, not to be repeated until four- teen days have elapsed, and not to exceed eighty-four days in one year. 2 347. Ball and Chain. This punishment is only awarded in extreme cases where escape is feared or where the prisoner is considered to be of a desperate or dangerous character. Such a sentence should state the weight of the ball and the length of the chain to which it is to be attached. 348. Imprisonment after Expiration of Term of Ser- vice. An officer dismissed, or a soldier discharged, by sentence of a court-martial, may at the same time be sentenced to a period of imprisonment extending beyond the date of his dismissal or discharge, and be held thereto notwithstanding he has been separated from the mili- tary service. Such persons are no longer soldiers but military piisoners or convicts, offenders legally sentenced for violation of the laws of the United States. 349. A soldier may also, without discharge attached thereto, be sentenced to a term of imprisonment extend- ing beyond his term of enlistment, and, notwithstanding its expiration, may be held until he has completed the term of imprisonment to which he has been sentenced. 1 Dig. Op. J. A. G. 1464. 2 G. O. 96, War Department, 1905, Article VII; Court-martial Man- ual, pp. 49, 59. PUNISHMENTS 165 It is always preferable, however, that the court award dishonorable discharge preceding the sentence of imprison- ment when it accompanies it. If the sentence does not award " dishonorable discharge" the discharge of the soldier is dated, and takes effect, on the date of expira- tion of the enlistment but is not delivered until expira- tion of the sentence. 1 350. Fine. A fine differs from a forfeiture or stoppage, in that it is a fixed sum which must be paid and is not deducted from pay due or to become due. It is espe- cially recognized as a form of punishment in the 60th Article of War. It is usually accompanied in the sentence by a provision, in order to enforce collection, that the person convicted shall be imprisoned until the fine is paid, or until a fixed period ofj time, considered as an equivalent punishment, has expired. These fines as well as forfeitures accrue to the United States, and cannot be imposed or collected for the benefit of any individuals. 351. Forfeitures. A forfeiture is the losing of the right to pay, allowances, etc., through some act to which such penalty attaches, or through sentence of a court-martial. Such as attach through the operation of law are effective whether included in the sentence of a court-martial or not, such as forfeiture of pay by deserters, if convicted, etc. Other forfeitures can only be imposed under legal sentences of a court-martial, and the character and amount of the forfeiture adjudged must be explicitly stated in the sentence; there can be no forfeiture by implication. For- feiture runs only so long as the soldier remains in the service under his current enlistment ; his discharge operates as a remission, and any balance due cannot be collected if he should re-enlist. When a forfeiture is adjudged the sentence should distinctly state that it is of a certain specified sum from pay due or to become due, or, if cover- 1 For classification of prisoners, see ante, par. 317. 166 MILITARY LAW ing more than the amount of one month's pay, that the forfeiture is of a specified sum per month (not larger than the monthly pay of the accused), for a specified num- ber of months; or it may be the forfeiture of all pay, or of all monthly pay and allowances, for a certain number of months. Where the forfeiture is of pay or any part thereof for a certain number of months it stops, for each of those months, the amount stated. A forfeiture of ten dollars of monthly pay for one year would mean a forfeiture of $120.00. 352. When the sentence is silent as to the date of commencement of the forfeiture it 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 pay due and payable at the next payment, and the balance, if any, against pay accruing thereafter, until the for- feiture is fully satisfied. 1 353. Where an accused is brought to trial under a charge of desertion and acquitted, or convicted of "ab- sence without leave" only, any amount paid as a reward for his arrest is not stopped against his pay unless, in case of conviction of absence without leave, the sentence of the court shall so direct. In such case the sentence should direct the charge against him to take the form of a stop- page, and not a forfeiture. 2 If convicted of desertion, or if restored to duty without trial, the expenses incurred in his apprehension and delivery, including the cost of trans- portation of the guard, will be set against his pay. 3 If a soldier be brought to trial for absence without 1 A. R. 984; G. O. 135, War Department, 1905. 2 A. R. 126; G. O. 144, War Department, 1906. 3 A. R. 125. PUNISHMENTS 167 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 com- mander will make the charge without the action of the court. 1 354. All fines and forfeitures revert to the United States; courts-martial have no power or authority to compel payment of civil claims, or of personal indebted- ness, except to the United States. 355. Stoppages. A stoppage differs from a fine or forfeiture in that it is not a punishment awarded but a reimbursement, and may be made without the sentence of a court-martial, as well as if included therein, when made in pursuance of law or regulations. It is a deduc- tion made from the pay or allowances of a person in mili- tary service for the purpose of reimbursement to the proper bureau or department of the United States for loss or damage to public property pertaining thereto. It may also be made in certain cases, under the provisions of law, for the Soldiers' Home; 2 for the payment of indebt- edness to tailors; 3 to traders and laundrymen at depots for recruits; 4 for repairs of damages done to arms, equip- ment, or implements; 5 purchases of articles from the sub- sistence department on credit; 6 or tobacco; 7 for clothing overdrawn; 8 and for the Post Exchange. 9 Stoppage may 1 Court-martial Manual, p. 49; A. R. 125. 2 Sec. 4818, 4819, Rev. Stat. This deduction is not now applicable to retired enlisted men. Appropriation Act, June 12, 1906; G. O. 115 and 144, War Department, 1906; A. R. 1397. 3 Sec. 1220, R. S. 4 Act June 30, 1882; G. O. 72, H. Q. A., 1882. See also A. R. 346*; G. O. 159, War Department, 1906. 6 Sec. 1303, R. S. 6 Sec. 1300, R. S. 7 Sec. 1301,R. S. 8 Sec. 1302, R. S. 9 A. R. 350. 168 MILITARY LAW also be made to repay injuries done to citizens, under the authority of the 54th Article of War, and in this case if the particular offender or offenders be not discovered the amount may be apportioned among the entire com- mand. 356. Stoppages are entered upon the muster and pay rolls of enlisted men, and the signing of the rolls is considered as an acceptance of the charge by them. Officers are notified of stoppages, which must be made under the au- thority of the Secretary of War, and they are removable only when collected, or the deficiency, or other fact caus- ing the stoppage, is satisfactorily explained. 1 357. If there is any dispute or question as to the re- sponsibility for loss or damage it is usual to convene a board, or designate a surveying officer, to investigate and fix the responsibility for the amount of damage or loss; and if there has been any criminal responsibility connected therewith, or it has resulted from neglect of duty, the court-martial on trial thereof may fix the pecuniary liabil- ity also. 358. Reprimand. This sentence is usually awarded to officers only, and for minor offenses where a mild penalty is to be inflicted. It is not appropriate for enlisted men, though authorized, 2 and is seldom awarded them. The proper authority to administer the reprimand is the authority who approves the sentence, and he may vary it in severity or mildness according to his views of the case. 359. Dishonorable Discharge. This sentence is ap- plicable to enlisted men only and must be awarded by a general court-martial. It operates, when executed, as a complete separation from his honorable status as a soldier of the Army; but he remains a military prisoner, subject to military jurisdiction, during the period of his confine- 1 A. R. 1336, 1337. 2 Court-martial Manual, p. 48. PUNISHMENTS 169 ment if any has been awarded him in a sentence which has been duly approved by the proper authority. It takes effect when he receives notice thereof, actual or construct- ive; actual delivery of the discharge paper itself is not necessary. Where confinement has been included in the sentence the certificate of discharge is held in custody of the post commander, or other proper officer, until the confinement is executed and is then delivered. 360. Dishonorable discharge is a discharge from the military service as a punishment, a complete expulsion from the Army, and closes all accounts and responsibil- ities, except under the provisions of the 60th Article of War, and if the person afterward fraudulently re-enlists he cannot be tried for an offense committed during a previous enlistment; even if he has deserted, the dis- honorable discharge prevents trial therefor. 1 But an honorable discharge, or a discharge without honor, marks the termination of that contract of enlistment to which it relates only, and does not relieve the soldier from the consequences of a desertion committed during a prior en- listment; but it does discharge him from amenability for all offenses, including desertion, charged against him for that particular term of enlistment, except as provided in the 60th Article of War. 2 361. When a soldier is convicted, on one arraignment, of two or more offenses, none of which are punishable, under the provisions of Article II of the Executive Order prescribing limits of punishment or by 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 for- feiture of pay and allowances may be awarded in addition to the authorized confinement. 3 1 Dig. Op. J. A. G. 1167. 3 Id. 1166. 8 G. O. 96, War Department, 1905, Article IV. 170 MILITARY LAW 362. Reduction to Ranks. Non-commissioned officers may be reduced to the ranks, but a non-commissioned officer not sentenced to reduction shall not be subject to confinement. 1 The sentence of reduction should always, therefore, precede that relating to confinement. A non- commissioned officer convicted of an offense not punish- able with reduction may, upon proof of one previous conviction within the prescribed period, be sentenced to reduction in addition to punishment already authorized. 2 363. Reduction in Grade. First-class privates may be reduced to second-class privates in all cases where for like offenses on the part of non-commissioned officers their reduction in grade is now authorized. 3 364. Deprivation of Certificates of Eligibility for Appointment as Second Lieutenant. The rights and privileges of enlisted men arising from certificate of eligi- bility for promotion to second lieutenant in the Army may be vacated by the sentence of a general court-martial. 4 365. Substitution of Punishments. The Executive Order prescribing limits of punishment 5 provides (Article VII) for substitutions for punishments named in Article II of that order, at the discretion of the court, at fixed rates as follows: Two days' confinement at hard labor may be substi- tuted for one dollar of forfeiture, or the reverse; one day's solitary confinement on bread and water diet for two days' confinement at hard labor or for one dollar of forfeiture. 366. Punishment for Offense Committed while in Confinement after Discharge. All soldiers sentenced by court-martial to dishonorable discharge and confinement 1 G. O. 96, War Department, 1905, Article VII. 2 Id., Article III, Sec. 6. 8 Id., Article III, Sec. 7. 4 A. R. 32. 1 G. O. 96, War Department, 1905. PUNISHMENTS 171 remain, until discharged from such confinement, subject to the Articles of War and other laws relating to the administration of military justice. 1 367. Prohibited Punishments. " Excessive fines " and " cruel and unusual punishments" are forbidden by Article VIII, Amendments to the Constitution of the United States, and while this is binding upon the judicial system of the United States and not upon courts-martial, which are no part of the judicial system, yet such pro- visions are intended to preserve the personal rights and liberties of citizens living under the Constitution; and they should be observed, even though not binding, when- ever not inconsistent with the preservation of discipline and the organization of the Army. Punishments which are cruel, unusual, or excessive in character should never be awarded by a court-martial under its dis- cretionary powers, and if they should be, it would be the duty of the reviewing authority to set the sentence aside. 368. Certain punishments are specifically prohibited by the 98th Article of War, which provides that : Article 98. No person in the military service shall be punished by flogging, or by branding, marking, or tattoo- ing on the body. 2 369. Certain sentences and punishments are also pro- hibited by orders and regulations. Sentences imposing tours of guard duty are forbidden, 3 as are also punish- ments which require the carrying of a heavy log. Sen- tences to wear a ball and chain are not to be awarded except in extreme cases. 4 But punishment by solitary confinement, or confine- ment upon a diet of bread and water, is recognized in the 1 Act June 18, 1898. 2 See post, par. 805. A. R. 972. 4 Court-martial Manual, p. 49. 172 MILITARY LAW Executive Order of the President published June 19, 1905, Article VII, which limits solitary confinement so that it " 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." 1 1 G. O. 96, War Department, 1905. CHAPTER XXII VOTING RECOMMENDATION TO CLEMENCY 370. The Articles of War prescribe the method of voting in courts-martial as follows : Article 95. Members of a court-martial, in giving their votes, shall begin with the youngest in commission. This requirement applies to all important questions requiring the decision of the court by vote, and is espe- cially important in voting upon the rinding and the sen- tence. It does not prescribe whether the voting shall be by ballot or viva voce, and in the majority of cases the latter form is used. The necessity for beginning with the youngest in commission is apparent from the fact that the junior members, being generally of less ser- vice and experience than their superiors in rank, might be unduly impressed by their vote, whereas justice to the accused requires entire freedom of opinion. 371. In all cases, except of the death penalty, which requires the concurrence of two-thirds of the members of a general court-martial, 1 a majority vote decides the question before the court. 372. Voting upon Charges. In voting upon the charges and specifications the president of the court takes the vote by reading the first charge and its specifications, and, beginning with the first specification of that charge, 1 Art. 96. See post, pan 803. 173 174 MILITARY LAW notes the vote of each member, beginning with the young- est in commission, and announces the result to the court; he then proceeds in like manner with the second specifi- cation and with each following specification, until there is a rinding upon all, when he proceeds to take the vote in like manner upon the charge itself. If there be more than one charge, each charge with its specifications is proceeded with in a similar manner until all have been voted upon. 373. Every member, being duly sworn to "try and ^determine" the matter before the court, must vote; there is no authority that can excuse a member from voting upon every question requiring determination by the court. 374. Voting upon the Sentence. The fact that a minority has voted "not guilty" upon the charge and specification will not excuse them, in any case of dis- cretionary punishment, from voting upon a sentence; in which case the majority vote also determines it. 375. Where the death penalty is mandatory upon the finding of "guilty," as in the 57th Article of War, writers seem to differ on the question as to whether if a majority has voted "guilty" this is conclusive upon the other members of the court and they must vote the sentence required by law. It would seem, in such cases, and it is so held by some writers, that, the sentence being mandatory upon the finding, the latter carries with it the sentence, and there- fore the finding of "guilty" should itself be by a two- thirds vote of the members of the court. This appears to be the just and proper view of the question, for there would be no need for the law requiring the two-thirds vote if, in cases of persons convicted of an offense where the mandatory and only punishment is death, the finding of "guilty" by a majority alone could compel the sentence. The law was intended for the pro- VOTING RECOMMENDATION TO CLEMENCY 175 tection of the prisoner and should be liberally construed in his favor rather than against him. 376. Tie Vote. In the proceedings of deliberative bodies whenever there is a tie vote the affirmative prop- osition is lost. So in courts-martial, if there is a tie vote on the finding, the question being "is he guilty/' the result is in favor of the accused and it is recorded as "not guilty." In a similar manner in a vote upon the sentence a tie vote means that the sentence is lost. The accused is, however, always entitled to the benefit of equal division of opinion, and as the vote has been upon a sentence supposedly milder than the one to follow, it is proper to reconsider such a vote, and, generally, recon- sideration will produce a majority in favor of, or opposed to, the sentence. A tie vote on a motion or on any objec- tion is a vote in the negative, and the motion or objection is not sustained. 377. Vote, How Recorded. In every case the result of the vote is recorded as the action of the court, and no protest or difference of opinion is permitted to appear in the proceedings which would tend to disclose the vote or opinion of any member. 378. Recommendation to Clemency. The sentence appropriate to the offense having been awarded in any case, one or more members of the court may feel that circumstances connected with it, as developed by the evidence, may justify clemency on the part of the re- viewing officer, and a less severe punishment than that awarded by the court. In such circumstances a recommendation to clemency may be submitted to the reviewing authority signed by all the members of the court desiring to join in such recom- mendation, and it will be forwarded with the record, but not as a part thereof, though it should be appended thereto after the exhibits referred to in the proceedings. 176 MILITARY LAW No such recommendation should be made, however, without good reason therefor, nor without careful con- sideration, and the grounds upon which it is based should be stated; such as, previous good character of the accused, long and faithful service, absence of deliberate criminal intent, or the long period he has already been in confine- ment before trial, etc. CHAPTER XXIII THE RECORD 379. Courts-martial being courts of inferior and limited jurisdiction, it must be made to appear clearly and af- firmatively, in order to give effect to their judgments, that the court was legally constituted, that it had juris- diction of the person and the offense charged, that the judgment imposed was conformable to law, 1 and that the statutory rules with regard to jurisdiction have been complied with. 380. The record of a court-martial, in any case, is the complete history of the composition, organization, and the proceedings of the court in that case. It must state the facts which give the court jurisdiction. It must appear therein that the court was legally organized, was composed of members eligible to sit upon it, that it had jurisdiction over the person of the accused, and of the offense with which he is charged, and that its proceedings have been conducted in accordance with the laws, orders, customs of the service, and regulations governing its pro- cedure. Any lack of jurisdiction will render its judgments void, and violations of the requirements of law will consti- tute a fatal defect; while failure to comply with orders, customs, and regulations governing its procedure may cause its proceedings to be wholly or partly disapproved, 1 Hamilton v. McClaughry, 136 Fed. Rep. 445. 177 178 MILITARY LAW and the judgment of the court modified or wholly annulled by the reviewing authority. 381. To enable the reviewing authority, whose approval is necessary to give life and force to the judgment of the court, to act advisedly upon the proceedings, the record thereof must be full and complete. It is required that every court-martial shall keep a complete and accurate record of its proceedings, which will be authenticated, in each case, by the signatures of the president and judge- advocate. In case of the death or disability of the judge- advocate after the court has decided on the sentence, and the record cannot 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 presi- dent. The judge-advocate should also affix his signa- ture to each day's proceedings. 1 If the death or disability of the judge-advocate occurs during the trial of a case the fact is reported to the con- vening authority, and proceedings are suspended until another judge-advocate is appointed or a new court ordered. If the president of a court-martial should die or be dis- abled, the next senior in rank takes his place, and though any member be lost through any cause, so long as a quorum remains the trial should be proceeded with. The pro- ceedings will be signed by that member of the court who is president at the conclusion of the trial. 382. The record is usually written in black ink, but may be written on the typewriter using the copyable ribbon when practicable. 2 The finding and sentence should be entered on the record by the judge-advocate himself, and in his own handwriting rather than by typewriting. 383. The record of each case being required to be 1 A. R. 987. 2 A. R. 988. THE RECORD 179 separate and complete, it must show that the court was sworn for the trial of that particular case. It is not a compliance with law to swear the court at its organization for the trial of such cases as have been, or may be, re- ferred to it, even if all the accused are present in the room, and the members are not objected to; the oath must be administered in each case in its turn as it comes before the court, after the accused has had his opportunity to chal- lenge the members. 384. The proceedings are headed " Proceedings of a general court-martial convened at Fort - , pursuant to the following order : (Headquarters Department , G. 0. No. - -, etc.)" The order is then inserted in full upon the record and it must appear therefrom that it was issued by an officer competent to convene such court-martial, and that its members are eligible to sit upon the court for the trial of that case. The number of members, and their relative rank with reference to the accused, is, however, deter- mined by the convening authority, his decision being con- clusive, and he also names the judge-advocate. If there has been any modification of this order such later orders or modifications are also then read and en- tered upon the record. 385. Date and Place of Meeting ; Members Present. The date and place of meeting with the names and rank of the members present and of the judge-advocate, and of those members absent, with cause of absence, if known, are then recorded, together with any preliminary busi- ness necessary to be transacted in connection with the case. The order, or a certified copy thereof, authorizing the absence of a member, if any be received, is then inserted, or it may be appended and referred to by its number, headquarters whence issued, date, etc., the refer- ence showing that it is so appended and giving its proper 180 MILITARY LAW reference mark. If the absence is caused by sickness, a surgeon's certificate should be furnished by the absent member and be appended. 386. Changes in Membership of Court. If there be any change made in the membership of a court-martial during the period of trial of any case, the fact of such change, and a copy of the order or orders making it, are entered in full on the record. If a new member be added it must show that the accused had opportunity to object to him, and, if admitted to membership, that he was duly sworn, and that the record made preceding the time of his taking his seat was read to him that he might have knowledge of the case so far as it had proceeded without him. 387. Introduction of the Accused; Challenges. The order convening the court, and modifications thereof, being entered the record then shows the introduction of the accused whose trial is to be proceeded with, that he, and his counsel, if he has one, are present before the court and that the order convening the court is read to him, and that he has an opportunity to object to trial by any of the members present. 388. The accused, if he challenge at all, must challenge but one member at a time, and the challenge must be "for cause stated." The ground of challenge will be entered upon the record, together with the reply of the challenged member, if he make any, or his statement under voir dire if he be examined thereunder. If the accused requests that the member be placed upon his voir dire the judge-advocate swears him, the record stating that he was then duly sworn by the judge-advocate and testified as follows: (All questions asked and answers thereto being recorded as given by him.) The oath administered to the challenged member is as follows: "You swear that you will true answers make to THE RECORD 181 questions touching your competency as a member of the court in this case. So help you God." 389. His statement being accepted, or the examination under voir dire being concluded in any case, the record shows that the court was then closed, the challenged mem- ber, the accused, his counsel, and the judge-advocate with- drawing; and, upon re-opening, that they were recalled and the president announced the decision of the court, stating it so that it may be recorded. If the objection was sustained the record shows that the member then withdrew from the court. The record must also show that after all the challenges have been acted upon there still remains a quorum of at least five members for the trial of the case. 390. Swearing the Members and the Judge-Advo- cate. All challenges having been decided, and a quorum remaining, the record must show that the members of the court and the judge-advocate were then duly sworn, in the presence of the accused. 1 391. Arraignment; Pleas. The record must then show that the accused was duly arraigned upon the charges and specifications, 2 a copy thereof being entered in full in the body of the record. 392. If there be any special plea, as in bar of trial, etc., 3 made by the accused, it will be at this time, and it, and all statements and actions taken under it, must be recorded together with the final determination of the matter by the court. 393. These pleas being disposed of, or not being made, the plea to the general issue is in order, and such pleas are recorded consecutively as follows: To the 1st specification, 1st charge, - , Tothe2d " " , 1 See ante, par. 174. 2 See Arraignment, ante, par. 177. 8 See Pleas, Chapter XIV. 182 MILITARY LAW and so on to all the specifications which follow in their numbered order, and then: To the 1st charge, ; To the 1st specification 2d charge, - , Tothe2d " " -, and after all specifications thereof are pleaded to, To the 2d charge, . If there are other charges and specifications, the pleas are recorded in like manner. Whatever plea is made to any specification or charge is entered fully upon the record, the accused being entitled to except words or phrases, to substitute other words therefor, and to plead guilty to part, and not guilty to other parts, of any charge or specification. This arraignment is always made immediately after the court and the judge-advocate are sworn, and is so recorded; if made before the taking of the oath by the court and the judge-advocate, it would be invalid and without effect. 394. Testimony. All testimony must be recorded in full, and in the very words of the witness. The questions as well as the answers thereto are entered upon the record. 395. The record must show that the witness introduced, for prosecution or defense, was duly sworn. 1 396. The first question asked and recorded is as to the name, rank, and station of the witness himself, and the next question is whether he knows the accused, and, if he does, his answer should identify him, by his name, rank, and station. 397. The questions of the judge-advocate are recorded as " question by the judge-advocate," the answers simply as " answer." Questions and answers then follow in order and are recorded until the close of the direct examina- tion, when, the judge-advocate having finished, the accused 1 For oath and form of administration thereof, see ante, par. 238-239. THE RECORD 183 is entitled to cross-examine the witness, and this is headed " cross-examination/' and the questions asked are recorded as " question by the accused," whether asked personally by him or by his counsel for him. If the accused does not desire to cross-examine, the record states that "the accused declined to cross-examine the witness." Similar proceedings are recorded in the case of every witness introduced. If the testimony of the witness is read over to him at his request or by direction of the court, that fact and the corrections made, if any, should be stated, referring to the original testimony which remains on the record as taken. When the judge-advocate has closed his prosecution, he so announces, the record stating that the "judge-advocate then announced that the prosecution here rested." 398. Witnesses introduced for the defense are sworn, as for the prosecution, by the judge-advocate, and the first questions recorded are those by the judge-advocate, as to the name, rank, and station of the witness and of the accused, in order to establish their identity. The ques- tions for the defense following are recorded as "question by the accused," and on the cross-examination "question by judge-advocate." If the latter does not cross-examine, it should be stated "the judge-advocate declined to cross- examine the witness." 399. If the accused testifies as a witness in his own be- half, it is essential that the record show that "it was at his own request." 1 400. Objections may be made to questions, or to answers thereto, and any interlocutory matter upon which the court acts during the trial must be fully recorded, with the action of the court thereon, in its proper place in the pro- ceedings. 1 See ante, par. 262 et seq. 184 MILITARY LAW If any question or answer is objected to by either party, the objection and the grounds therefor must be stated, with the reply thereto, if any, and both, with the action of the court, must be entered upon the record. If the court has been closed for deliberation on the subject, the record so states, and that the judge-advocate, the accused, and his counsel withdrew, and that on the re-opening of the court the president announced its decision, which decision is then entered upon the record. 401. If a question is asked by a member and objected to by another member, or by the judge-advocate or the accused, and the objection is sustained by the court, it is not answered and is recorded as " question by a member"; but if the objection made is not sustained, the question is repeated by the judge-advocate and recorded as " question by the court." Any question which the court decides to ask is not open to objection from any source, and must be answered. 402. Statement. The accused having no further evi- dence to offer so states, and the fact is entered upon the record. He may then make a verbal statement, which must be entered upon the record as made, or submit a written statement which is read to the court. If he sub- mits a written statement, as is usual, it should be signed, but not sworn to, by the accused and will be appended to the proceedings, the record stating that "the accused then submitted a written statement in his defense which was read to the court and is hereto appended marked 'A,' 'B,' or'C,'" etc. 403. All documents or papers submitted to and re- ceived by the court and forming part of its proceedings are attached thereto as appendices, each marked, in the order of its reception, as Exhibit "A," "B," or "C," etc., and reference is made to them, according thereto, in the body of the record as above. The papers received with THE RECORD 185 the charges and submitted to the court, or copies thereof, are appended to the proceedings; all others, received but not submitted to the court, are returned with the charges, which also enclose the record of the court, the endorsement of the judge-advocate being made upon the charges that they have been duly tried and that the record of the trial is enclosed therewith. Documents submitted and not received, as being irrele- vant or unimportant in connection with the case, are re- ferred to in the record by simply stating their character and the grounds of their rejection, and are not required to be attached to the record. 404. Reply of the Judge-Advocate. If the judge- advocate submits the case without any remarks or reply to the statement of the accused, the record so states. But if he sums up the case for the prosecution, as he is entitled to do, his remarks, if verbal, must be entered upon the record in full, or, if written and read by him, it is stated that the judge-advocate submitted (in writing) and read to the court his reply, or remarks upon the case, which is appended, marked "B" or "C," etc. 405. Finding. There being nothing further submitted by either party, and the court desiring no further evidence in the case, the record must show that the judge-advocate, the accused, and his counsel then withdrew and the court was closed, and finds the accused, naming him and his rank exactly as stated in the charges and specifications : Of the 1st specification, 1st charge, - , Ofthe2d " " , and so for each succeeding specification. Of the 1st charge, . Similar record is made for each of the succeeding charges in their regular order. 186 MILITARY LAW 406. Previous Convictions. If the accused, being an enlisted man, has been found guilty and the case is one where the punishment is left to the discretion of the court-martial under the Articles of War, and the pro- visions of the Executive Order establishing limits of punishment are applicable, the record must then show that the judge-advocate and the accused were thereupon recalled, the court opened, and that the judge-advocate stated that he had no evidence of previous convictions to submit, or, if he has received any, that the judge-advo- cate then read the evidence of previous convictions, copies of the records of which are appended to the pro- ceedings marked Exhibit "C," "D," etc. The court is then again cleared and closed, and proceeds to vote upon the sentence, which being determined, the record then states that the judge-advocate was there- upon recalled, and the court at such an hour proceeded to other business, or adjourned to a certain date and hour, or to meet at the call of the president, or, if all work is completed, that it adjourned sine die. 407. Sentence. If the punishment is not discretionary, or the accused is found not guilty, or, in the case of an officer or cadet, the court is not re-opened to receive evidence of previous convictions, but proceeds directly to the sentence or acquittal, the sentence stating that the court does therefore sentence him stating the name, rank, etc., of the accused precisely as given in the finding to whatever sentence accords with the offense as prescribed by law and orders. 1 If the sentence is "death," the record must explicitly state that two- thirds of the members concurred therein. 2 If the accused is found not guilty, the record shows, after the finding, that the court does, therefore, acquit 1 See Sentence and Punishment, Chapter XX, and Forms for Sen- tences, Appendix E 5 10. 2 Court-martial Manual, p. 60. THE RECORD 187 him, stating the name, rank, etc., precisely as in the finding. 408. When the sentence is determined upon, the judge- advocate is then recalled, without .the presence of the accused at this time, simply for the purpose of informing him of the sentence and enabling him to prepare the record; it would be illegal and improper for him to be before the court, in the absence of the accused, during its consideration of the case. 409. Authentication of Record. The complete record when written out is authenticated by the signatures of the president and the judge-advocate. 1 But the court, as a whole, is responsible for ths record, and it should be read to and approved by the court before the presi- dent and judge-advocate sign it. At least two blank pages will be left after the adjournment and before the appendices for the action of the reviewing authority. 410. Recommendation to Clemency. Members sign- ing a recommendation to clemency 2 transfer the same to the judge-advocate to be appended to the proceedings for transmit tal to the reviewing authority. The original charges, statement of service, and other papers forwarded with the original charges, not attached to the proceed- ings, are forwarded with the record which the judge- advocate must transmit without delay to the officer having authority to confirm the sentence. 3 411. Adjournment. The record being completed and approved by the court it states that, at such an hour, the court proceeded to other business, or adjourned to meet at a certain date and hour, or to meet at the call of the president. If it has no more business to transact, the court adjourns sine dw. This being entered, the entire record is authenticated by the signatures of the president and the judge-advocate. 1 See ante, par. 381. 2 See ante, par. 378. 3 A. R. 989. 188 MILITARY LAW Adjournments from Day to Day. Adjournments from day to day, during the trial of a case, are signed by the j udge-advocat e . After such adj ournment it is not necessary to enter, on re-conyening, the names and rank of each member, the judge-advocate, etc. As the record at the organization of the court shows the names and rank of the members and judge-advocate, it only need be stated during the remainder of the trial, after such adjourn- ments, that all the members, the judge-advocate, the accused, his counsel, and the reporter, if any, were present. If any member is absent, whose absence is not already accounted for, the record here shows the fact of his absence and the authority therefor, if known. Recess. After a recess, which is noted on the record, it should be stated that the members of the court, the judge-advocate, the accused, his counsel, and the reporter, resumed their seats. 412. Forwarding Records of General Court-martial. The entire record, when completed and authenticated, is promptly forwarded by the judge-advocate to the con- vening authority, as an enclosure to his endorsement upon the charges, stating that they have been duly tried and that the record of the trial is enclosed therewith. The proceedings of every general court-martial, together with the accompanying papers, are transmitted to the officer having authority to confirm the sentence, 1 and when acted upon by him they must be forwarded, with such expedition as circumstances will permit, to the Judge-Advocate-General of the Army, in whose office they are to be carefully preserved. 2 Proceedings of courts- martial convened by the President are forwarded direct to the Secretary of War. Every party tried by a gen- eral court-martial, upon demand therefor made by him- self or by any person in his behalf, is entitled to a copy 'A.R. 989. 2 Article 113. THE RECORD 189 of the proceedings and sentence of such court. 1 Appli- cation for copies under this Article should be addressed to the Judge-Advocate-General. 413. Forwarding Records of the Inferior Courts. The complete proceedings of a garrison or regimental court, after action of the post or regimental commander thereon, will be forwarded to department headquarters. 2 These may be destroyed at the end of two years after receipt. 3 The summary court record is kept at each military post and in the field, at the headquarters of the proper command, and the commanding officer makes a monthly report to the department headquarters of the cases tried. 4 414. Lost Record. Where the record of a court-martial has been lost before the action of the reviewing authority thereon, the proceedings are thus terminated, unless the court can be re-convened and a new record made from extant original notes. But where they are lost after the action of the reviewing authority, the sentence having been confirmed and ordered executed, the loss does not impair or affect the judgment of the court, and consti- tutes no legal obstacle to the enforcement of the penalty. 5 REVISION PROCEEDINGS 415. The record, having been received by him, may be found by the reviewing authority to have some defect, either in omission to record some material fact necessary to insure the validity of its judgment, or, in his opinion, the finding may not be that justified by the evidence, or the sentence be inadequate as a punishment for the offense 1 Article 114. 2 A. R. 990. 3 Act March 3, 1877. 4 Act June 18, 1898; see Appendix E, 6. 8 Dig. Op. J. A. G:, par. 2139. 190 MILITARY LAW of which the accused is found guilty, or not in accordance with law, orders, or regulations. The reviewing officer, in such case, has no power or authority to correct the record; but when the record of a court exhibits error in preparation, or seemingly erroneous conclusions, the reviewing authority may re-convene the court for a re-consideration of its action, pointing out defects. 1 In the order or endorsement re-convening the court the reviewing authority designates the errors and defects to be corrected, stating his views with respect thereto, and sends the proceedings, with his remarks, to the president of the court, who informs the judge-advocate and directs him to notify the members that the court will re-convene at a date fixed by him, which should be as early as practicable. If the omission is such as to make his presence necessary, as in the correction of a special plea of the accused, or of an objection taken by him, the accused is also notified and required to be present with his counsel if he desires him. As many of the errors or omissions are purely clerical and as the correction may relate to the finding or sentence which is considered in closed court, the presence of the accused is not generally necessary or advisable, but when any possible injustice may result from his absence he should be required to be present. 416. The record of the re-convening of the court and its revision proceedings is made separate and distinct from the original record. It contains the date and place of meeting and a copy of the order or endorsement pursuant to which it is re-convened and the names of all the mem- bers present, and of those absent, who sat on the trial, with cause of absence, if known. It must also show that the judge-advocate was present. There must be at least five members present of those 1 A. R. -991. THE RECORD 191 who acted upon the trial, together with the judge-advocate. If the finding and sentence are to be revised, all who voted thereon ought, if possible, to be present on revision. Five members who acted on the trial will constitute a legal quorum and their final action will be the action of the court, 1 but the whole court should be present if possible. 2 There being a quorum present, the judge-advocate reads the order or endorsement re-convening the court and, if the court is closed, withdraws. Whenever the court is closed, after due deliberation it is re-opened, the judge- advocate recalled, and the president of the court announces its action which, if it affects the finding or sentence, may be that it respectfully adheres to its former finding or sentence, or both, or it revokes the former finding and finds the accused as follows : (the new finding being here inserted); or it may state that it revokes its former sen- tence and sentences the accused as follows: (the sentence being here inserted) ; or if it is a simple amendment to the record it is stated that the court amends the record as fol- lows: (the amendment being here inserted with reference to the page and line of the original record). 417. The omission corrected must be one in fact, a failure to record an actual event in the original proceed- ing-. An omission or irregularity of proceeding, such as failure to afford the accused the opportunity to challenge the members of the court, or the omission to swear the court or judge-advocate, or to receive the pleas of the accused, or to swear a witness, cannot be repaired by any subsequent revision. The original record must remain just as it was when for- warded to the reviewing authority, no interlineations or erasures are to be made in it by the president, the judge- 1 Dig. Op. J. A. G. 2251; 7 Op. Attorney-General 338. 2 See Ben6t, ed. 1868, p. 174; Simmons, Sec. 723. 192 MILITARY LAW advocate, by the court itself, or by any member thereof; any such act would constitute a grave irregularity. 418. In its revision of the record, should the court con- cur in the views submitted, it will proceed by amendment to correct its error, and may modify or completely change its findings, when necessary, to accord with such correction. It cannot, however, re-open the case by calling or re-calling witnesses, as such action would be illegal. 1 The record of revision will be appended to the original proceedings, following them immediately, before the exhibits. 2 419. There is no limit to the number of times that the record may be returned to the court for revision and the court re-convened, but the proposed correction is wholly within the discretion of the court; the reviewing authority cannot compel the court to make the correction nor dictate its action. 3 If the court has been dissolved, it is no longer in exist- ence as a court and cannot be re-convened. Correction or modification of its record will, therefore, be impossible in such cases. 420. Record of Garrison and Regimental Courts- martial. The form of record of the garrison and regi- mental court-martial is similar to that of the general court-martial except that " testimony taken before regi- mental or garrison courts-martial will not be reduced to writing." 4 421. Record of Summary Court. Forms for the sum- mary court record, 5 and for the monthly report of cases tried, are furnished from the War Department by the Military Secretary. 1 A. R. 991. 2 See Appendix E, 4. 3 Dig. Op. J. A. G. 2250. 4 A. R. 987. 5 See Appendix E, 5, 6. THE RECORD 193 DISPOSITION OF RECORDS 1 422. The Judge-Advocate-General revises and is the custodian of the records of the proceedings of all general courts-martial, courts of inquiry, and military commis- sions. 2 The original records of proceedings, with the decisions and orders of the reviewing authorities made thereon, and also the records of proceedings of all general courts which require confirmation by the President but which have not been appointed by him, will be forwarded direct to the Judge- Advocate-General. One copy of the order promulgating the action of the court, and a copy of every subsequent order affecting the case, will be for- warded to the Judge- Advocate-General, with the record of each case. When more than one case is embraced in a single order, a sufficient number of copies will be for- warded to enable one to be filed with each record. The proceedings of all courts and military commissions ap- pointed by the President will be sent direct to the Secre- tary of War. 3 423. "Applications of officers, enlisted men, and military prisoners for copies of proceedings of general courts- martial, to be furnished them under the 114th Article of War, will, when received by post or other commanders, be forwarded direct to the Judge- Advocate-General." 4 424. "Communications relating to proceedings of mili- tary courts on file in the Judge-Advocate-General's De- partment will be addressed and forwarded direct by department commanders to the Judge- Advocate-General. In routine matters the Judge-Advocate-General and judge- advocates may correspond with each other direct." 5 1 Court-martial Manual, p. 72. 2 Sec. 1199, R. S.; A. R. 922. 8 A. R. 924. 4 Id. 926. 6 Id. 927. 194 MILITARY LAW 425. Judge-advocates of departments are the custodians of the reports of cases tried by summary courts l and of all proceedings of garrison or regimental courts-martial. 2 426. Post commanders will, on the last day of each month, make a report to the department headquarters of the number of cases determined by summary court during the month, setting forth the offenses committed and the penalties awarded. 3 "The complete proceedings of a gar- rison or regimental court will be transmitted, without delay, by the post or regimental commander to depart- ment headquarters." 4 427. The reports of cases tried by summary courts and records of other inferior courts will be filed in the office of the judge-advocate at the headquarters of the department commander in whose department the courts were held, the records of garrison and regimental courts to be re- tained for two years, at the end of which time they may be destroyed; 5 the summary court reports may be de- stroyed "when no longer of use." 6 1 Act of June 18, 1898, establishing the summary court. See Appen- dix B. 2 Act of March 3, 1877 (19 Stat. at Large, 310). 3 Act of June 18, 1898, Sec. 4. See Appendix B. 4 A. R. 990. 5 Act of March 3, 1877 (19 Stat. at Large, 310). 6 Act of June 18, 1898. CHAPTER XXIV THE REVIEWING AUTHORITY 1 428. The proceedings of a court-martial as signed by the president and judge-advocate thereof are not final; its sentence cannot be enforced until approved by the proper reviewing authority, such action being provided for by the following article of war : Article 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. It is also required, by A. R. 989, that the officer having authority to confirm the sentence will state at the end of the proceedings in each case his decision and orders. For this purpose the judge-advocate leaves at least two blank pages in the proceedings, immediately following the record of adjournment. The Article quoted above limits approval to "the officer ordering the court" or "the officer commanding for the time being." The officers authorized to order general courts-martial are designated by the Articles of War, 2 and, in special case, for the trial of cadets at the Military Academy, by Sec. 1326, Revised Statutes United States. Those who may convene regimental and garrison courts, 1 See Sentence and Punishment, ante, par. 310 et seq.; and Pardon or Mitigation of Punishment, post, par. 446 et seq., and post, par. 811. 2 Articles 72 and 73. See post, par. 779, 780. 195 196 MILITARY LAW and the summary court, are designated by the 81st and 82d Articles of War and by the Summary Court Act, approved June 18, 1898. 1 The rank of those who may convene general courts-martial is stated in Article 72 as "any general officer commanding an army, a territorial division, or a department, or colonel commanding a sepa- rate department," so that an officer of lower rank cannot convene such courts under that Article. But the rank of "the officer commanding for the time being " is not fixed, that expression being indefinite as to rank, and therefore an officer of lower rank than colonel may, if "in com- mand for the time being," act upon the proceedings and sentence of a court ordered by a preceding commander authorized to do so, though he cannot himself convene such a court. 429. The Army Regulations now provide that in the event of the death, or disability, of the permanent com- mander of a territorial division or department, or his temporary absence from the limits of his command, the senior line officer present and on duty therein will exercise the command of the division or department, unless other- wise ordered, until relieved by proper authority. Yet an absent division or department commander may con- tinue to discharge the more important functions of his command, but his exercise of command and his absence therefrom will in such case require the sanction of higher authority. 2 430. The 73d Article of War -authorizes the commander of a division or a separate brigade, in time of war, to appoint general courts-martial. The commander of a division under our organization is properly a major-general, and the commander of a brigade a brigadier-general, but an officer of less rank may become by virtue of seniority, or assignment, the commander of a division or brigade, 1 See Military Tribunals, ante, Chapter III. 2 A. R. 193. THE REVIEWING AUTHORITY 197 and, as such, empowered, under this Article, to appoint general courts-martial and, under Article 104, will have authority to approve the sentence of such court. 1 431. Where a department has been merged into an- other, or into a division, the commander of the new depart- ment or division will be "the officer in command for the time being" and empowered to act upon the proceedings and sentence of a court-martial previously convened by the commander of the former department now within the limits of his command. And where a post has been abandoned the department commander will act upon the proceedings of inferior courts duly convened prior thereto and requiring approval . This Article (104) limits the act of approval to the persons indicated in it, and they cannot delegate their power. A staff officer cannot, therefore, act in the name or by the authority of the officer ordering the court, or " officer commanding for the time being." 432. The approval indicated in the Article refers to the sentence alone, and it is not necessary in order to carry the sentence into effect that the reviewing officer approve the whole proceedings; he may in fact disapprove certain parts thereof and yet approve the sentence; he may ap- prove some findings and disapprove others in the same case. 2 Whenever, however, he deems the proceedings erroneous in any material particulars, or ill-advised, he may re-convene the court for correction of the defect. If he regards the sentence as inadequate he may not add to the punishment imposed, but he may re-assemble the court for revision thereof, stating why he considers it inadequate. 3 433. The action of the reviewing authority is necessary to give life to the sentence, so that in cases where the 1 See Winthrop, Vol. 1, p. 77. 2 Carter v. McClaughry, 183 U. S. 365, 384. 3 Dig. Op. J. A. G. 2230, 2231. 198 MILITARY LAW Articles of War 1 provide that the sentence shall not be carried into effect until confirmed by a superior authority, if the sentence is disapproved by the immediate review- ing authority, it is without effect, being nullified in law by that act, and, there being nothing for the superior authority to act upon, it is not necessary for the record to be transmitted to him for his action. 2 434. The action of the reviewing authority upon the sentence is either of approval or disapproval, and this may be stated without comment or he may make such re- marks in connection therewith as he believes justified by the facts in the case as shown by the record; but it is not necessary that he should give any reason for his action either in approval or disapproval. He must, how- ever, endorse his action, with the date thereof, on the pro- ceedings, at the end thereof, so that it becomes a part of the final record, and must sign such action in his own handwriting as being the proper reviewing authority. The date is important as indicating the time when the sentence becomes effective, and the order promulgating the proceedings will, when practicable, bear the same date as the action of the reviewing authority. 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, however, apply to sentences of forfeiture of all pay and allowances; 3 nor to a dis- honorable discharge, wiiich becomes effective, and is dated, the day on which the order is received at the place where it is to be executed ; 4 nor to sentences of dismissal of officers, which are usually made to take effect at some date, after approval thereof, designated by the President or Secretary of War. The forfeiture of all pay and allowances due an 1 Articles 105, 106, 107, 108, 109. 2 Dig. Op. J. A. G. 2229. 3 A. R. 978. 4 Dig. Op. J. A. G. 1155. THE REVIEWING AUTHORITY 199 accused refers to all that is due on the date on which the sen- tence takes effect and which has accumulated prior thereto. 435. The proceedings of general courts-martial in cases of officers, and in important cases of enlisted men, are published in general orders from the proper headquarters. Cases of enlisted men that are not of general interest or importance are published in special orders. 1 436. Execution of the Sentence. Authority for the execution of sentences is given in the 109th Article of War, which provides as follows: Article 109. All sentences of a court-martial may be confirmed and carried into execution by the officer order- ing 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. 2 The cases in which confirmation by superior authority is required are stated in the 105th, 106th, 107th, and 108th Articles of War. 3 In Articles 105, 106, and 108, no sentence of death, with the exception of those "in time of war," no sentence of dismissal of an officer in time of peace, and no sentence respecting a general officer either in time of peace or war, can be carried into execution until confirmed by the President. 437. Article 105. No sentence of a court-martial, in- flicting the punishment of death, shall be carried into execution until it shall have been confirmed by the Presi- dent; 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 1 A. R. 992. 2 See post, par. 816. 3 See post, par. 812-815. 200 MILITARY LAW 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. This Article permits the execution of the sentence of death in the above cases, when war is being carried on, by either the general commanding in the field, or by a depart- ment commander engaged in carrying on war with the troops in his department. But, in time of peace, proceed- ings which involve death, or dismissal of an officer, must, after being approved by the convening authority, be for- warded by him direct to the Judge-Advocate-General for the action of the President. 1 438. Article 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. "This Article does not expressly require that the con- firmation of the sentence shall be signed by the President, nor does it prescribe any form in which the confirmation shall be declared. A written approval, therefore, of a sentence of dismissal authenticated by the signature of the Secretary of War, or expressed to be by his order, is a sufficient confirmation within the Article; the case being deemed to be governed by the well-established principle that where, to give effect to an executive proceeding, the personal signature of the President is not made essential by law, that of the head of the department to which the subject belongs shall be sufficient for the purpose; the assent of the President to his order or direction being presumed, and his act being deemed in law the act of the President whom he represents." 2 1 Court-martial Manual, p. 64; Articles 105, 106, 108, post, par. 812,813, 815. 2 Davis' Military Law, p. 545; U. S. v. Fletcher, 148 U. S. 84; U. S. v. Page, 137 U. S. 673; Dig. Op. J. A. G. 337, and note. THE REVIEWING AUTHORITY 201 439. Article 108. No sentence of a court-martial, either in time of peace or in time of war, respecting a gen- eral officer, shall be carried into execution until it shall have been confirmed by the President. This Article applies to all sentences of any kind or char- acter respecting a general officer, who is thereby assured of an examination of his case by the highest military authority in the land before the sentence can be carried into execu- tion. The President's action under it, though judicial, need not be evidenced under his own hand. 1 440. The articles that require action of superior author- ity other than that of the President are Articles 105 and 107. The 105th Article of War, which has been inserted above, provides that in case of persons convicted, in time of war, of the crimes enumerated therein, the sentence of death, approved by the immediate reviewing authority, must be confirmed by the commanding general in the field, or the commander of the department, as the case may be. If the war is being carried on within the limits of an organized department, and there is an organized division or separate brigade acting therein, under his command, the action of the commander of such division or separate brigade approving the sentence of death must, in the cases indicated in this Article, receive the confirmation of the department commander before being executed. 441. Article 107. No sentence of a court-martial ap- pointed 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. 2 1 U. S. v. Page, 137 U. S. 673, 678, 680; U. S. v. Fletcher, 148 U. S. 84, 89. See post, par. 815. 3 See post, par. 814. 202 MILITARY LAW This Article also refers to the organization of troops into divisions and brigades in time of war, under a general commanding the army in the field, and requires the sen- tence of dismissal of an officer, which has been approved by the commander of a division or of a separate brigade under his command, to be confirmed by him. 442. Sentences of Courts-martial for Trial of Cadets. All legal sentences of a court-martial convened by the Superintendent of the United States Military Academy for the trial of cadets may be executed by him except those of dismissal or suspension, which must receive the approval of the President before being carried into execu- tion. 1 AUTHORITY FOR THE EXECUTION OF SENTENCES 443. The reviewing authority may pardon or mitigate the sentence of a court-martial, 2 but he has no power to commute the sentence, or to change the character or species of the punishment .imposed, or to increase it. If, however, the sentence of the court is in excess of what the law allows, he may approve so much of it as is within the legal limits, and that part may be executed, the ex- cess being null and void. Sentence to imprisonment in a penitentiary, if legally adjudged, may be changed by him to imprisonment in a military prison, this being considered as a mitigation and not a commutation of the punishment awarded. An unexecuted sentence, or any part thereof remain- ing unexecuted, may be remitted or mitigated; but an executed sentence is beyond the power of remission or mitigation. 444. It is not necessary for the reviewing authority to give reasons for his action upon the sentence; but where 1 Sec. 1326, Revised Statutes. 2 Art. 112; Sec. 3, Act June 18, 1898. THE REVIEWING AUTHORITY 203 he disapproves it, it is usual for him to do so; and in all cases where he returns the proceedings to the court for revision he states the reasons therefor, for the considera- tion of the court. It is not necessary for his disapproval that the proceedings show facts making the trial illegal; he may disapprove them for any irregularity which, in his judgment, has prevented justice being done to the accused, or to the prosecution; and his action cannot be reversed by orders from any higher authority. If the sentence, as approved by him, is unwarranted or exces- sive, it may be mitigated or remitted, or even set aside if void for any cause, by the proper higher authority. 445. Suspension of Sentences. Provision has been made for the suspension of the execution of the sentence of death, or of dismissal of an officer, by the authority having power to carry it into execution, by the following Article of War: Article 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 proceedings of the court. 1 This Article refers to cases arising "in time of war/' and as, under the 112th Article of War, 2 the reviewing authority cannot pardon or mitigate the punishment of death, or of dismissal of an officer, it affords opportunity for exercise of the executive clemency if the President thinks proper to exercise it, and which the reviewing authority may sometimes think desirable. The reviewing authority must have approved the sentence so as to make it effective before he can suspend it; it is not a sentence in force until it has been approved by the proper author- 1 See post, par. 818. 2 See post, par. 819. 204 MILITARY LAW ity. If it has been disapproved by him it is of no effect and there is no sentence remaining to suspend or transmit. Where a case is submitted to the President for his action under this Article, he may approve or disapprove the sentence in whole or in part, and, if he approve, may exercise his power of remission or mitigation. 1 1 Dig. Op. J. A. G. 340. CHAPTER XXV PARDON OR MITIGATION OF PUNISHMENT REVIEW OF PROCEEDINGS OF COURTS-MARTIAL BY CIVIL COURTS 446. The power of the President to pardon offenses against the United States is unlimited by the Constitution except as to cases of impeachment. 1 The punishment imposed by the sentence of a court- martial is subject to pardon or mitigation by the reviewing authority; it may be lessened in severity but never in- creased by him. The power to "pardon" and to "mitigate" punish- ments adjudged by sentence of courts-martial is granted to commanders authorized to order such courts by Art. 112 of the Articles of War, and by Sec. 3, Act of June 18, 1898. Article 112. Every officer who is authorized to order a general court-martial shall have power to pardon or miti- gate any punishment adjudged by it, except the punish- ment 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 The Act of June 18, 1898, provides: "Sec. 3. That the commanding officers authorized to approve the sentences of summary courts and superior authority shall have power to remit or mitigate the same." 3 1 Const., Art. II, Sec. 2. 2 See post, par. 819. 3 See Appendix B. 205 206 MILITARY LAW 447. The power to pardon or mitigate punishment im- posed by a court-martial, vested in the authority which confirms the proceedings or the corresponding authority under whose jurisdiction the sentence is being executed, extends only to unexecuted portions of a sentence; l an executed sentence is not subject to remission or mitigation. 448. Remission. The pardoning power herein granted is different from and inferior to that vested in the Presi- dent by the Constitution. Remission is of the quality of pardon but of an inferior degree, the power to pardon in- cluding the power to remit. "The attributes, therefore, of the constitutional pardoning power of the President will be found to characterize in a measure the power of remission possessed by the reviewing officers, who, indeed, in the exercise of this power, may be regarded as the agents or representatives of the Executive in military 9 f O cases. 449. Remission is relieving the person from a punish- ment, or the unexecuted portion of a punishment, but not pardoning the offense as such or removing the dis- abilities or penal consequences attaching thereto on con- viction. It is action of the reviewing authority taken after punishment has been awarded. The pardoning of " punishment," authority for which is vested in certain commanders under the 112th Article of War, is remission, and not a pardoning of the " offense." 3 Where an unconditional remission has been made it cannot be recalled and the sentence, or any part thereof that has been remitted, revived. 450. Mitigation. The power to mitigate, unlike the power to remit, is not a form of the pardoning power, but "is a power attached as an incident to the power to order courts and approve and execute their sentences, being simply a discretion vested in the reviewing authority 1 A. R. 950. 3 Winthrop, Vol. 1, p. 662. 8 Dig. Op. J. A. G. 2164. PARDON OR MITIGATION OF PUNISHMENT 207 to reduce, when deemed by him just or expedient, the measure of punishment awarded by the court." l Mitigation is the reduction by the reviewing authority of the punishment adjudged by the court, by reducing it in quantity or quality, or both, without changing its species. Imprisonment, fine, forfeiture of pay, and sus- pension, are punishments capable of mitigation. 2 This power is exercised by the reviewing authority at the time he acts upon the sentence of the court-martial. 451. Where the sentence awards punishment by con- finement in the post guard-house or a military prison, the reviewing authority cannot increase the punishment by designating a penitentiary as the place of confinement of the prisoner, but he may mitigate a sentence to the penitentiary, if legally adjudged, by designating the post guard-house, or a military prison, as the place of confine- ment. 452. A department commander may remit or mitigate the unexecuted sentences of enlisted men under his com- mand, notwithstanding the court which awarded them was convened and the sentences approved by the com- mander of another department. 3 As the power of " mitigation" is exercised at the time of the action of the reviewing authority on the sentence adjudged, the later action, after the sentence has been approved and punishment awarded, relieving the person from any part, or all, thereof, partakes of the character of " remission." 4 The pardoning power conferred by the Article, which is the power of " remission/' 5 is not limited in its exercise to the moment of approving the sentence, but may be em- 1 Winthrop, Vol. 1, p. 662. 2 Dig. Op. J. A. G., 345. 8 Cir. 20, War Department, June 15, 1901. 4 See Dig. Op. J. A. G. 345. 6 Id. 347. 208 MILITARY LAW ployed as long as there remains any material for its ex- ercise. A department commander, or other proper and legal commander, may remit at any time, in his discretion, the unexecuted portion of the sentence of any soldier under his command, imposed by a court-martial con- vened by him or by a predecessor in command. 1 453* Commutation. Where, as in cases of sentences of death, dismissal of an officer, or dishonorable discharge, there can be no lesser degree of the same punishment to which the sentence may be reduced by way of mitigation, mercy can only be shown by the substitution of some other punishment, different in nature, for that named in the sentence, and such action is a change of penalty, or commutation. 454. "The power to commute (or remit) sentences of death, or dismissal of an officer, is reserved to the President, 2 and a military commander cannot exercise such power even where, in time of war, he is authorized to approve such a sentence and carry it into effect." 3 " A reviewing authority other than the President is not empowered to commute a punishment; the pardon herein specified (Art. 112) is remission, which, unlike the pardoning power vested in the President, does not include commutation or conditional pardon." A reviewing officer, for example, cannot commute the punishment of dishonorable dis- charge, and, as such punishment awarded by itself is not susceptible of mitigation, it cannot legally be reduced under this article. 4 "But a legal sentence of dishonor- able discharge, forfeiture of all pay and allowances due, and confinement at hard labor for a definite period may be mitigated by the authority approving such sentence 'S3e Dig. Op. J. A. G. 344. 2 Art. 112. See ante, par. 446. 3 Davis' Military Law, p. 552. 4 Dig. Op. J. A. G. 347. REVIEW OF PROCEEDINGS BY CIVIL COURTS 209 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." 1 455. An application for clemency in case of a general prisoner sentenced to confinement in a penitentiary, either State or Federal, will be forwarded to the Secretary of War for the action of the President. The power to commute sentences imposed by military tribunals, not being vested in military commanders, can be exercised by the President only. 2 456. Review of Proceedings of Courts-martial by Civil Courts. When a court-martial is legally constituted and proceeds within its legal power, its proceedings are not subject to review by the civil courts. It is only when the question is one as to its jurisdiction its legal constitu- tion, observance of the statutory rules prescribed for the exercise of its jurisdiction, or the legal use of its power of punishment that such review may be had. The civil court will act only upon the question of " juris- diction," and if it finds that the court-martial had it, such courts will not interfere to correct errors or mistakes in its proceedings. Mere matters of procedure cannot be reviewed by them. The judgments of courts-martial are as final and conclusive as those of civil tribunals of last resort. 3 The action of the court upon a plea of the statute of limitations is a part of the proceedings and therefore cannot be reviewed by the civil courts. 4 457. Writ of Habeas Corpus. Where a court-martial exceeds its jurisdiction or inflicts punishment forbidden by 1 Court-martial Manual, p. 65, par. 8. 2 A. R. 950. 5 In re McVey, 23 Fed. Rep. 878; Carter v. McClaughry, 183 U. S. 365; Dynes v. Hoover, 20 How. (61 U. S.) 81; Ex parte Reed, 100 U. S. 23; In re Grimley, 137 U. S. 147; Carter v. Roberts, 177 U. S. 496. 4 In re Davison, 21 Fed. Rep. 618; Ex parte Townsend, 133 Fed. Rep. 74. 210 MILITARY LAW law, a writ of habeas corpus may issue in cases where confinement has been imposed. It cannot be used, how- ever, to serve the purpose of a writ of error. 1 458. Writ of Prohibition. Whether the civil courts of the United States can issue a writ of prohibition to courts- martial or not, appears to be an open question which the Supreme Court of the United States has not yet decided. 2 The object of a writ of prohibition is to prevent a court of peculiar, limited, or inferior jurisdiction from assum- ing jurisdiction of a matter beyond its legal cognizance. It can only be used to restrain judicial functions; it cannot be granted upon the ground of irregularities in the pro- ceedings, or for insufficiency of the charges or specifica- tions, or to correct mistakes of a court-martial in the de- cision of questions of law or fac under its jurisdiction; 3 nor is the fact that the accused has been tried for the same act by the civil courts a proper basis for a writ of prohibition. 4 But, in any event, and in any of the courts, the writ cannot be issued when the court-martial has jurisdiction of the case, nor can it be made to take the place of a writ of certiorari, or writ of error used to inquire into the matters of pleading or the merits of the case; it cannot be made use of to correct errors of law or fact within the jurisdiction of the court. The Supreme Court of the United States says concern- ing it: "This court, although the question of issuing a writ of prohibition to a court-martial has not come before it for direct adjudication, has specifically recognized the 1 Ex parte Milligan, 4 Wall. (71 U. S.) 2; Carter v. McClaughry, 183 U. S. 365; McClaughry v. Deming, 186 U. S. 49; Deming v. McClaughry, 113 Fed. Rep. 639. See Habeas Corpus, ante, par. 225 et seq. 2 See Smith v. Whitney, 116 U. S. 175, 176; Foster's Federal Prac- tice, 2d Ed., Sec. 362. 3 Smith v. Whitney, 116 U. S. 176. 4 U. S. v. Maney, 61 Fed. Rep. 140. REVIEW OF PROCEEDINGS BY CIVIL COURTS 211 general rule that the acts of a court-martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writs of prohibition or otherwise." 1 In some of the States, however, the civil courts have issued writs of prohibition to militia courts-martial con- vened under the laws of such States. 2 1 Smith v. Whitney, 116 U. S. 167, 177. 2 American and English Encyclopaedia of Law, Vol. 23, p. 222. CHAPTER XXVI COURTS OF INQUIRY 459. The court of inquiry is not a judicial tribunal, though assimilated in some respects to the court-martial in its composition, organization, power to compel the attendance of witnesses, and to receive their evidence under the sanction of an oath. It is, in fact, a council, commission, or board of officers, convened for the purpose of a special investigation into the nature of a transaction of, or accusation or imputation against, any officer or soldier. Its inquiries are not affected by any limitations of time, and Art. 103 of the Articles of War cannot be pleaded in bar of the proceedings as it may be in cases before courts- martial. 1 460. Its existence and the authority under which it acts are derived from the following Articles of War: Article 115. A court of inquiry to examine into the nature of any transaction of, or accusation or imputation 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 purposes, 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 commanding officer except upon a demand by the officer or soldier whose conduct is to be inquired of. Article 116. A court of inquiry shall consist of one or 1 See ante, par. 191. 212 COURTS OF INQUIRY 213 more officers, not exceeding three, and a recorder, to re- duce the proceedings and evidence to writing. Article 117. The recorder of a court of inquiry shall ad- minister to the members the following oath: "You shall well and truly examine and inquire, according to the evi- dence, 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 abili- ties, accurately and impartially record the proceedings of the court and the evidence to be given in the case in hearing. So help you God." . Article 118. A court of inquiry, and the recorder thereof, shall have the same power to summon and ex- amine 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 circum- stances in question. Article 119. A court of inquiry shall not give, an opin- ion on the merits of the case inquired of unless specially ordered to do so. Article 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 command- ing officer. 1 461. Composition. The court of inquiry consists of one or more officers, not exceeding three, and a recorder, all of whom are sworn to a faithful and impartial per- formance of their duties. 2 The rank of the officers who are members relative to that of the person under accusa- tion or imputation is not prescribed by law, the limitation of the 79th Article of War, that "no officer shall, when it can be avoided, be tried by officers inferior to him in rank/' not applying to courts of inquiry. i See post, par. 822-826. 2 Art. 1 16, 1 17. 214 MILITARY LAW 462. Constitution. A court of inquiry may be con- vened at any time by the President, but never by a com- manding officer except upon demand of the officer or soldier whose conduct is to be inquired into. The term " commanding officer" is not restricted by the statute, but the court of inquiry should not in general be ordered by an inferior post or regimental com- mander, where the charges required to be investigated are not such as an inferior court-martial could legally take cognizance of. 1 The word " demand " in the 115th Article of War has been construed as synonymous with " re- quest " or " application for." It is optional with the com- manding officer to refuse the application; but in event of such refusal the applicant may, if not satisfied, appeal to higher authority. 2 463. The form of the order convening a court of inquiry is similar to that of a court-martial, the members and the recorder being designated by name and rank, and the transaction, accusation, or imputation to be investigated is specified in the order; and if the court is to give an opinion on the merits of the case the order must so direct, otherwise no such opinion will be given. 3 MODE OF PROCEDURE 464. Organization. The court meets at the time and place directed, and the fact that the members and the recorder are present is recorded, as is also the presence (of the person whose transactions, or conduct, are to be investigated if he is actually present, though his presence is not obligatory or essential. 4 If a member is absent or the court reduced below the number named in the order, by any cause, the convening authority should be notified, so that he may, if he desire, replace such member or 1 Dig. Op. J. A. G. 367. 3 Art. 119. 2 Winthrop, Vol. 1, p. 737. 4 Winthrop, Vol. 1, p. 745. COURTS OF INQUIRY 215 members; for a new member may be detailed to take his seat during the inquiry. The accuser, if any, and the accused, or any officer whose conduct will be materially involved in the inquiry, each with counsel if desired, are also generally allowed to be present. 1 465. Reporter. A reporter may be allowed in impor- tant cases, his employment and rate of compensation being in the discretion of the Secretary of War. Such reporters are usually paid the rates fixed by Army Regulations for reporters of general courts-martial. 2 466. Challenges of Members. By the custom of the service, members of courts of inquiry are subject to chal- lenge in the same manner as before courts-martial, 3 and when the court is composed of two, or of three, members and the number is reduced by casualty, or challenge, the convening authority should be notified, so that a new member may be detailed during the inquiry. But the court may legally proceed with the reduced number. 4 467. Oath of Members and Recorder. The oath, Article 117, is administered to the members by the re- corder, and to the recorder by the president of the court. 5 468. Function of the Court of Inquiry. The function of a court of inquiry is solely that prescribed in the articles quoted above. Such courts are limited in their operation to " officers or soldiers "; they cannot be ordered to in- vestigate transactions of, or accusations or imputations against, persons not in the military service or those who have been separated therefrom, even though such trans- actions, accusations, etc., relate to their acts or conduct while in the Army. 6 1 Winthfop, Vol. 1, p. 745. 2 Court-martial Manual, p. 83. 3 Davis' Military Law, p. 221. 4 Court-martial Manual, p. 83. Art. 117. See par. 460, supra. 6 Dig. Op. J. A. G. 366. 216 MILITARY LAW 469. The court, as well as the recorder, has the same power to summon and examine witnesses as is given to courts-martial and the judge-advocates thereof. 1 But not being a court in the legal meaning of the term, it has no power to punish for contempt. The Act of March 2, 1901 (G. 0. 27, A. G. 0., 1901), providing for the punishment of a civilian witness for refusing to ap- pear or testify, is limited by its terms to general courts- martial. 2 The authority to issue process to compel civilian witnesses to appear and testify, vested in every judge- advocate of a court-martial, does not extend to recorders of courts of inquiry. 3 470. Examination of Witnesses. The examination of witnesses and the introduction of evidence is proceeded with substantially as before courts-martial, each witness taking the same oath, administered by the recorder, as is taken by witnesses before courts-martial. 4 The party accused has the right to examine and cross-examine the witnesses so as fully to investigate the circumstances in question, and may introduce witnesses of his own, and object to witnesses and testimony offered by the recorder, and may interrogate and impeach them. He may also take the stand himself as a witness, at his own request, under provisions of the Act of March 16, 1878, subject to cross-examination. 471. The inquiry not being a judicial proceeding, the court is not called upon to enforce the rules of evidence so strictly as they would be, in general, in a court-martial, but it will ordinarily be safest and most equitable to observe them. 5 The court of inquiry, equally with the court-martial, 1 Art. 118. 2 Dig. Op. J. A. G., p. 107, note; Winthrop, Vol. 1. p. 749. 3 Dig. Op. J. A. G. 2478. 4 Art. 118. See par. 460, supra. 8 Winthrop, Vol. 1, p. 750. COURTS OF INQUIRY 217 has the power to act upon and determine questions as to the admissibility of evidence, including depositions, offered before it. 472. The proceedings of courts of inquiry may be either closed or open according to the discretion of the court, and where the case is one that makes such action desirable, the doors would properly be closed upon the public; but Article 118 provides for the summoning and examina- tion of the witnesses and that the accused may examine or cross-examine them, and the custom of the service permits the presence of his counsel, and of the accuser and his counsel, and of the necessary clerks. In its final deliberations, however, or where it is desired to consider some interlocutory question without publicity, the court is cleared and doors are closed as in the case of a court-martial. 1 473. Duties of Recorder. The duties of the recorder are similar to those of a judge-advocate of a general court- martial. He prepares the case so as to avoid delay when the court meets; summons witnesses, having the same power therefor as the judge-advocate of a court-martial; 2 prepares the room for its meeting, procures the necessary stationery, etc. He acts for the government in the inves- tigation, administers the oath to the court and to wit- nesses, asks necessary questions of witnesses, etc., and is required to " accurately and impartially record the pro- ceedings of the court and the evidence to be given." 3 He is not the adviser of the court, nor a prosecutor before it, but must assist the court, if it so desires, in all mat- ters leading to correct conclusions of law and of fact. 4 474. The Record. The record is made up in a form and manner similar to that of a general court-martial, and 1 Winthrop, Vol. 1, p. 748. 2 Art. 118. See ante, par. 460. 3 Art. 116, 117. See ante, par. 460. 4 Court-martial Manual, p. 84. 218 MILITARY LAW must be authenticated by the signatures of the recorder and president, and delivered to the commanding officer 1 who convened the court, or to the* President, if convened by him. The record consists of two parts : (1st) the testimony of the witnesses, including the documentary evidence sub- mitted and the arguments or statements made by those subject to investigation, and (2d) the report proper, that is, a recital or statement of the facts constituting the occurrence referred to the court for examination. This report is based upon and derived from the testimony sub- mitted and the evidence adduced, and its statements must be supported thereby; reference to the testimony of wit- nesses may be used, and the use of foot-notes and cross- references is also authorized. 2 When it is so ordered the court also records its opinions on the merits of the case. 475. While it is desirable that the members of a court of inquiry, directed to express an opinion, should concur in their conclusions, they are not required to do so by law or regulations ; members may disagree and submit a separate report, or reports, accordingly. 3 The report or conclusion of a court of inquiry is con- sidered to be of the nature of a confidential communica- tion to the convening authority, and, like the findings and sentence of a court-martial, should not be disclosed by the members of the court, or the recorder, until pub- lished by the proper authority. 476. Action on the Proceedings. The record of the court when received by the convening officer may be acted upon, in his discretion, by approval or disapproval. He may decide that no further action is necessary or, if sufficient grounds exist for it, he may order a court- martial in the case. 1 Article 120. See ante, par. 460; post, par. 827. 2 Davis' Military Law, p. 222. 3 Dig. Op. J. A. G. 370. COURTS OF INQUIRY 219 If the proceedings are not satisfactory to him he may re- turn them for revision or further investigation, and the court may be required, upon revision, to rehear witnesses or to take entirely new testimony, or it may do so of its own motion. 1 477. The proceedings having received his final action, the convening authority may publish, in orders, the whole or part, or the substance, of the report of the court, or the result alone, as, for example, that it is determined that no further proceedings are called for in the case; or he may omit altogether to publish it. 2 478. Use of the Proceedings as Evidence. It is pro- vided by the 121st Article of War that "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 cannot be obtained." The proceedings of the court of inquiry will properly be proved before the court-martial either by the original record of the court, or by a copy thereof certified by the Judge- Advocate-General, or other official in whose custody the original may be. 3 Persons desiring a copy of the proceedings of a court of inquiry may apply to the Secretary of War therefor. 4 1 Winthrop, Vol. 1, pp. 752, 753. 3 Id., p. 754. 4 Dig. Op. J. A. G. 361, 364. CHAPTER XXVII RETIREMENT- RETIRING BOARDS 479. Congress has made provision by law for the retire- ment of officers who have attained a fixed age, or who have had a certain number of years of service, or who have become incapable, in any way, of performing the duties of their office. Officers retired from active service are withdrawn from command and from the line of promotion. 1 480. Such officers, however, unless " wholly " retired, still form a part of the military establishment, are entitled to wear the uniform of the rank on which they may be re- tired, are borne upon the Army Register, and though not in active service are subject to discipline as other officers and may be tried and sentenced by court-martial for any breach of the rules and articles of war. 2 As they still constitute a part of the Army, they are properly exempt from the public obligations peculiar to civilians, such as jury service, etc., though if summoned for duty as juror in any court, they should appear and urge the objection, arising from their military status, to the judge' for the determination of the court. 3 481. Whether a retired officer holds a public office or not within the meaning of the statutes is still apparently open to question, 4 though it has been held that they do 1 Sec. 1255, R. S. 3 Sec. 1256, R. S.; U. S. v. Tyler, 105 U. S. 244; Closson v. U. S., 7 App. Cases, D. C. 460. 8 Dig. Op. J. A. G. 2201. 4 See Dig. Op. J. A. G. 2210, and Id., p. 623, note. 220 RETIREMENT RETIRING BOARDS 221 not, except when assigned to duty under some statute, exercise public office. " They are in fact pensioners." 1 And "a retired officer is not prohibited by law from hold- ing office in an executive department, or as a department clerk, nor from receiving the salary thereof in addition to his retired pay." 2 Section 1222, Revised Statutes, prohibiting the accepting or holding of civil office, is held not to apply to retired officers. They may hold any State, county, or municipal office and receive the pay and emoluments of the same without military office or pay being in any manner affected. 3 The provision of Sec. 1763, Rev. Stat. U. S., prohib- iting any person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, from receiving com- pensation for discharging the duties of any other office, has since been modified by an act containing the same provision, but with following addition: "but this shall not apply to retired officers of the Army or Navy when- ever they may be elected to public office, or whenever the President shall appoint them to office by and with the advice and consent of the Senate." 4 Retired officers may now, with their consent, be assigned by the Secretary of War to active duty in recruiting; for 1 Davis' Military Law, p. 238; Ives, p. 292: Dig. Op. J. A. G. 2209: Geddes v. U. S., 38 Ct. Cl. 429. 2 Dig. Op. J. A. G. 2202; Id., p. 620, note 4. See also Id., p. 505, note 1; Collins v. U. S., 15 Ct. Cl. 22; Badeau v. U. S., 130 U. S. 439, 452; Yates v. U. S., 25 Ct. Cl. 296. . 3 Dig. Op. J. A. G. 1823. See 22 Op. Attorney-General 88. Retired officers may be assigned to duty at the Soldiers' Home (Sec. 1259, R. S.); be appointed to civil office, not being prohibited therefrom by the wording of Sec. 1259, R. S. (In re Smith, 19 Op. Att'y-Gen. 283; Fed. Stat. Annotated, Vol. 7, p. 1034; sea U. S. v. Brindle, 110 U. S. 688; U. S. v. Saunders, 120 U. S. 126); may be employed on active duty, other than the command of troops, in time of war (Act March 2, 1899) ; be detailed at any time as Adjutant-General of the militia of the District of Columbia (Act June 6, 1900); or be employed as president, superintendent, professor, or instructor at any college or other institution of learning (Sec. 1225 and 1260, R. S.). 4 Act July 31, 1894; Supplement to Rev. Stat., Vol. 2, p. 212. 222 MILITARY LAW service in connection with the organized militia in the several States and Territories, upon the request of the governor thereof; as military attaches; upon courts- martial, courts of inquiry, and boards; and to staff duties not involving service with troops. 1 The office of an officer of the Army and his rank are not necessarily identical. .When an officer is retired the office remains the same though different rank may be conferred upon him as a title of distinction; and in con- nection with this change of rank his pay may be changed. The rank and pay of a retired officer are within the con- trol of Congress. 2 RETIREMENT BY LAW 482. The law provides that "when an officer has served forty years either as an officer or a soldier in the regular or volunteer service, or both, he shall, if he make applica- tion therefor to the President, be retired from active service and placed on the retired list; and when an officer is sixty-four years of age, he shall be retired from the active list and placed on the retired list." 3 "When an officer has been thirty years in the service he may, upon his own application, in the discretion of the President, be retired from active service and placed upon the retired list." 4 483. When any officer has served forty-five years as a commissioned officer, or is sixty-two years old, he may be retired from active service at the discretion of the President. 5 This law has since been modified by a provision that 1 Act April 23, 1904; G. O. 76, War Department, 1904. 2 Wood v. U. S., 107 U. S. 416, 417. 8 Act June 30, 1882. 4 Sec. 1243, R. S. 8 Sec. 1244, R. S. RETIREMENT RETIRING BOARDS 223 service as an enlisted man shall be credited in computing service for longevity pay and retirement. 1 484. It is held that in computing service under Section 1243, Revised Statutes, the period served by the officer as a cadet at the Military Academy is legally counted. 2 485. In neither of the cases under the laws above stated is there any requirement for the action of a retiring board ; the matter lies wholly within the hands of the officer and the President, and the limits prescribed by the law, re- tirement at the age of sixty-four being compulsory. RETIRING BOARDS 3 486. When any officer has become incapable of perform- ing the duties of his office, he must be either retired from active service, or wholly retired from the service, 4 and this is accomplished through the finding of a retiring board acting upon the case. 487. Composition and Constitution of Retiring Board. This board is authorized by the following law : The Sec- retary of War, under the direction of the President, shall, from time to time, assemble an Army retiring board, consisting 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 inquired of. 5 488. In order to constitute a legal board there must be, therefore, not more than nine officers, nor less than five, and two-fifths of the board must be officers of the Medical Corps. 1 Act June 18, 1878, Sec. 7. 2 Dig. Op. J. A. G. 2205. 3 For form of order and record, see Appendix E, 9. < Sec. 1245, R. S. 6 Sec. 1246, R. S. 224 MILITARY LAW 489. The members of the board are designated in the order of the Secretary of War, their names, rank, etc., and that of the recorder, being stated in the order. There is no statutory authority for the appointment of a recorder, but, under the custom of the service, the Secretary of War appoints a recorder for each retiring board. He is not a member of the board, and simply takes down the testi- mony and records the proceedings. 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, examine the witnesses, and, gen- erally speaking, conduct the case for the Government. 1 490. 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. 2 PURPOSE AND POWERS 491. The board is empowered to inquire into and de- termine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of per- forming 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. 3 But this does not authorize such a board to entertain a charge of a military offense as such, nor to try an officer. 4 492. In pursuance of Sec. 1246, Revised Statutes, it is required that "when an officer becomes disabled for the performance of duty by reason of wounds, sickness, or improper habits, his immediate commander will report the facts to the department commander for the action of the War Department. The report in each case will con- 1 Court-martial Manual, p. 85. 2 Id. 3 Sec. 1248, Revised Statutes. 4 Dig. Op. J. A. G. 2192. RETIREMENT RETIRING BOARDS 225 tain specific statements and the names of witnesses by whom they can be substantiated." 1 "Habitual intemperance, gambling, or other vices that tend to corrupt an officer and lower the professional stand- ard will be regarded as proper subjects for the considera- tion and report of a retiring board." 2 493. These regulations prescribe the method by which the incapacity of an officer is brought to the attention of the Secretary of War, and those things which the board must take into consideration in determining the cause of the disability. 494. "The provision of Sec. 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 construed in connection with the other provisions cited, " its evident intention is that the board shall have and exercise such powers of a ' court ' as may be requisite to insure a full investigation, to afford a fair hearing, and to enable it satisfactorily to determine the questions referred. Thus it is properly authorized and empowered to call for and entertain such testimony of witnesses, depositions, documents, 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 reasonable opportunity of defense if desired, to find and report in his absence if he fails to appear; and, further, to determine the relevancy and validity of chal- lenges to its members" according to the 88th Article of War, and to punish acts in the nature of contempt according to the 86th Article of War, "if necessary to an impartial and complete inquiry." 3 495. "In the execution of the duty thus imposed by law, the board is required to ascertain the nature and 1 A. R. 76. 2 A. R. 77. 3 Court-martial Manual, p. 88 . 226 MILITARY LAW extent of the disability and its character and effect, as temporary or permanent. The evidence upon which to base its findings in this regard should be derived chiefly but not exclusively from the report of the medical officers, and from the authenticated extracts from the depart- mental records which show the cases in which the officer has received medical or surgical treatment during his con- nection with the military service." 496. " The board having established the fact of incapacity for active service must seek the cause of such incapacity and determine whether the cause so ascertained is an incident of service; that is, a thing which inseparably be- longs to, is connected with, or inheres in the military service. Battles, marches, the performance of the several duties in garrison or in the field which 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 exigencies or necessities of the military service all of these make up and constitute the 'incidents of service/ one or more of which must be ascertained by the board as the determining cause of an incapacitating disability. If the disabling cause be a wound or injury, the wound or injury 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 aggre- gation of incidents of the service , in other words, the board must pass from the disability to the occasion or circum- stance of which it is the direct result, and that occasion or circumstance must be a thing so inseparably associated with the military service, so directly connected with it and growing out of it, as to entitle it to be regarded as an incident of the service." 1 497. "If an officer participates in military operations, or serves in a locality where the climatic or other causes 1 Court-martial Manual, pp. 88, 89. RETIREMENT RETIRING BOARDS 227 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 service within the meaning of the statute. But when a disease is contracted, not due to exposure or to the existence 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 negligence on the part of the officer, who is bound as a prudent 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." 1 498. The disability which the board is to inquire into is an existing physical or mental incapacity, not a moral de- fect or a criminal amenability. If the case be one calling for trial and punishment, it should be referred to a court- martial. 2 499. Recorder. Although there is no statutory pro- vision for a recorder, custom of service authorizes his appointment and his duties are similar to those of a judge-advocate of a court-martial or the recorder of a court of inquiry. He prepares the place of meeting, stationery, etc., summons and examines the witnesses, col- lects the evidence, conducts the case for the government, records the proceedings, and authenticates the record. He may be assisted by a stenographic reporter employed on the authority of the Secretary of War, previously ob- tained, which authority must be filed with the voucher on which payment is made. The form of voucher used will be that provided for payment of reporters for general 1 Court-martial Manual, pp. 87, 88, 89; Circular War Department February 27, 1904. 2 Court-martial Manual, p. 88. 228 MILITARY LAW courts-martial, with necessary changes in the wording of the form. 1 500. Procedure. The procedure of the board is closely assimilated to that of a court of inquiry, and the rules which govern such court are applicable. It is the duty of the board itself, however, to examine the witnesses if neces- sary and to develop the facts pertinent to the investiga- tion required of it, 'not depending entirely upon their examination by the recorder. The board is merely an advisory board and is not bound by the statutes or regu- lations governing courts-martial. 2 501. Right of Officer to be Heard. The board having organized, and the members and the recorder being present, it is the right of the officer whose case is to be considered to be present and to be heard before the board, if he desires it. This right is guaranteed by the provision that " 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. " 3 If, having had due summons, he fails to appear before the board and to demand a hearing, he waives the right, is himself in default, and the board may proceed without him, and he cannot take exception to a conclusion arrived at in his absence. 4 502. The above provision of law (par. 501) entitles the 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 1 Court-martial Manual, p. 85. See Form, Appendix E, 21. 2 Carrick v. U. S., 24 Ct. Cl. 265. 8 Sec. 1253, Revised Statutes. 4 Dig. Op. J. A. G. 2197. RETIREMENT RETIRING BOARDS 229 examined by the board, including the medical officers of the board who may have taken part in the medical ex- amination, and have stated or reported to the board the result of the same." l 503. Challenge. The officer, with his counsel, may appear before the board, and as the law prescribes that he shall have "a full and fair hearing" he may exercise the right of challenge. This is done in a manner similar to that before courts-martial, the cause being stated, and the member replying and, if necessary, being examined on his voir dire, and if the board is satisfied that the chal- lenged member entertains malice or prejudice that will prevent his giving the case a fair hearing, such member is excused from sitting. The board cannot proceed, how- ever, with less than five members, two of whom must be of the Medical Corps. Should they be reduced below this number, or proportion, the board should adjourn, reporting the facts to the convening authority. 504. Oath. The board having the proper number to proceed after the challenges have been acted upon, the members thereof are then duly sworn in accordance with the provision of law that "the members of said (retiring) board shall be sworn in every case to discharge their duties honestly and impartially." 2 The oath is administered by the recorder, and the follow- ing form complies with the statute: "You (naming the members) do swear that you will honestly and impartially discharge your duties as members of this board in the matter now before you. So help you God." The pre- siding officer of the board then administers the following oath to the recorder: "You (naming him) do swear that you will, According 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 1 Court-martial Manual, p. 86. 2 Sec. 1247, Revised Statutes. 230 MILITARY LAW God." 1 The oath administered to a witness is the same as that to a witness before a court-martial. 2 505. When an officer comes before a retiring board it is the duty of the medical officers of the board to make a thorough medical examination of him, and to reduce the result to writing, which is submitted to the board. 506. When the officer desires retirement, it is proper for him at the beginning of the hearing to state under oath the nature and cause of his disability, the recorder and mem- bers of the board asking such questions as will help bring out the facts. He may also be interrogated as to his mili- tary history. But if the retirement is opposed by him he cannot be required to testify against himself. 3 507. After the testimony of the officer has been taken, the senior medical officer is sworn as a witness, and sub- mits the statement of the result of the medical examina- tion of the officer, 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 more than two) are similarly examined. The recorder then submits documentary evidence which he has received from The Military Secretary, 4 and which is duly authenticated by the official seal of his office or by his signature. Other evidence may then be introduced ; and the officer before the board has the right to object to improper evi- dence, to interrogate the witnesses, and may himself intro- duce evidence, if legal, material, and relevant, and may submit a written statement. 5 508. Statute of Limitation. The investigation of a retiring board is not affected by any limitation of time 1 Court-martial Manual, p. 87. 2 Art. 92. 3 Court-martial Manual, p. 90. 4 A. R. 26. 6 Court-martial Manual, p. 90. RETIREMENT RETIRING BOARDS 231 as is that of a court-martial by the 103d Article of War, and it may therefore inquire into the matter of a dis- ability no matter how long since it may have originated. 1 FINDING 509. When the investigation is completed, the board is closed for deliberation, and determines whether the officer before it for examination is incapacitated for active ser- vice or not. The recorder need not retire during this deliberation. 2 When the board finds an officer incapacitated for active service, it must find and report the cause which, in its judgment, has produced his incapacity, and whether such' cause is an incident of the service. 3 If it finds that his incapacity is the result of an incident of the service, and such decision is approved by the President, said officer shall be retired from active service and placed upon the list of retired officers. 4 510. When the board finds that an officer is incapacitated 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 ser- vice, or wholly retired from the service, as the President may determine. Officers wholly retired from the service are given one year's pay and allowances of the highest rank held by them at the time of their retirement; 5 and their names are omitted from the Army Register. 6 When ample testimony establishes the fact that an officer has through vicious indulgence slighted or neglected his duties to such a degree as to make it unsafe to entrust him with a command, or with responsibility that properly 1 Dig. Op. J. A. G. 2193; Ben 1 st Lieut. , Judge- A dvocate. 1 (At least two blank pages mil be left after the adjournment, and before the exhibits, for the decision and orders of the reviewing au- thority.) 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, Co. Trial by general court-martial at ; Commencing , 19 ; Ending , 19. President: Major , Judge- A dvocate : 1st Lieut. SEC. II. FORM FOR REVISION OF RECORD 8 FORT , -, 19-. The court reconvened at o'clock .m., pursuant to the following order: 1 In case of the death or disability of the judge-advocate or president of the court, see ante, par. 381, and par. 987, A. R. 2 When the record is completed, the judge-advocate will forward it without delay to the convening authority as an inclosure to the indorse- ment of the judge-advocate returning the original charges (par. 989, A. R.). See also ante, par. 412. 3 See Revision of Record, ante, par. 415 et seq. The court is usually APPENDIX E 513 (Insert copy of order.) (or) pursuant to the following indorsements; (Insert copies of all indorsements.) PRESENT ABSENT (Insert names of absentees, and state cause of absence, if known.) The judge-advocate read to the court the foregoing order, (or) the foregoing indorsement of the convening authority. 2 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. 3 The judge-advocate was then recalled, and the court at .m., etc. , Major , 1st Lieut. , President. Judge- Advocate. (The record of revision will be appended to the original proceed- ings, following them immediately, before the exhibits, and the whole indorsed by the president of the court and forwarded to the convening authority.) reconvened by indorsement on the original record, returning it to the president of the court with the directions of the convening authority. 1 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. 2 The judge -advocate will also read any other indorsements there may be connected with the proceedings in revision. 3 See ante, par. 417. 514 MILITARY LAW 5. Record of a Summary Court SEC. I. FORM FOR RECORD l No. of case, . Record of a summary court at , , appointed by Orders No. , Headquarters , , 19 . .!2 ' .S _ fl h ^S O CQ lun O o3 bC^ ff > e 0) ^ t>N. ,S d ^ Name, rank, company, g and regi- **" ment, and '2 list of of War viol Specification, with signature of officer preferring charges. c 1 ;r of previous i within one ; ig current t. Sentence, with signature of trial officer, and consent to trial, if given. of commant with date i re. 2 '5b witnesses. _o "o llf | Iff 1 u ^ |*S-5 8 8 a 03 I hereby consent 3 to 1 g Witnesses: trial by summary court on these 1 charges. - Regt. - j Private Co. : . NOTE. This form may be used to furnish copies ot the record, the same to be certified to be "a true copy' by the post commander or adjutant. (On back of form. ) INSTRUCTIONS This form is intended to answer the purposes of a charge sheet, which, when completed by the summary court and the commanding officer, will become the complete record of the trial. The officer preferring the charges will enter on this form the name of the accused, the list of witnesses, and the charges as called for by the headings, together with his signature thereto; and, in proper cases, the accused will be required to sign the state- ment snowing whether or not he consents to trial by summary court the necessary alteration being made in the certificate if he does not consent. The case will then be submitted in the usual way for trial. Each sheet is intended for one case only, and will be given a serial number in the order 1 Blank forms for summary court record and for monthly report of cases tried (for form see No. 6, post, p. 515) will be furnished by The Military Secretary of the Army. For instructions regarding evidence of previous convictions by summary court, see ante, par. 308. 2 When commanding officer tries case no approval is necessary. See ante, par. 83, and par. 965, A. R. 3 In cases where the maximum limit of punishment which may be awarded is greater than one month's forfeiture and confinement, the record must show whether the accused has consented or refused to consent in writing to trial by summary court as prescribed in par. 962, A. R, See ante, par. 80. APPENDIX E 515 of trial; and they will be bound in numerical order in books of convenient size, each case being added to the book when completed by pasting or other method, the margin at the left being intended for this purpose. Paper binding will be sufficient, a good quality of tough and heavy paper being used therefor. DATA TO ACCOMPANY CHARGES In arrest (or confinement) under present charges since previous convictions within one year (in current enlistment) - FIRST INDORSEMENT Respectfully referred to the summary court for trial. By order of * . Dates of -, 19 , Adjutant. SEC. II. REMARKS ON RECORD 1. "When the only officer present with a command sits as a summary court, no approval of the sentence is required by law, but he should sign the sentence as such officer and date his signa- ture." 1 2. The name of the post or other place will not be given under the head of "action of officer appointing court, with date and signature," as this information appears at the head of the record. 6. Monthly Report of Summary Court Cases Report of cases 2 tried by summary court at , , for the month of , 19-. a 3 o | o Sentence. eg a ep. c - (If mitigated, give O IS 8 sentence as miti- Name, rank, com- a Synopsis of specifica- pL gated only. Signa- ture of trial officer pany, and p* tion. "8 rf d > not to be copied. il regiment. "o bb Jo ^ - Give date of signa- = a g -J ^6 ture of officer ap- = 1 | j* i^ H pointing court.) 1 Par. 965, A. R. 2 The report of each case where the maximum limit of punishment which may be awarded is greater than one month's forfeiture and con- finement must show whether the accused has consented or refused to consent in writing to trial by summary court, as prescribed in par. 962, A. R. 516 MILITARY LAW 7. Record of a Garrison Court-martial l SEC. I. FORM FOR RECORD CASE . Proceedings of a garrison court-martial convened at , pursuant to the following order: FORT - , , 19-. ORDERS, No. A garrison court-martial will convene at this post at o'clock a.m., on , 19, or as soon thereafter as practicable, for the trial of (such persons as have refused to consent hi writing to trial by summary court). 2 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 1 The form for record for a garrison court-martial differs from that for a genera 1 court-martial only in respect to the form of the order appointing the court. The orm here given is that for a case in which a plea of " Guilty" is entered; if the prisoner pleads "Not guilty" or makes a special plea, the form for record of a general court will be followed. 2 See ante, par. 76. APPENDIX E 517 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: CHARGE : 1 . Specification: . To which the prisoner pleaded: To the specification, "Guilty." To the charge, "Guilty." (In case testimony is taken, it is not recorded. 2 ) The judge-advocate announced that the prosecution here rested. The prisoner stated that he had no testimony to offer or state- ment 3 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, copies of which are hereto appended and marked A, B, etc. The accused and judge-advocate then withdrew, and the court was closed and sentences him, Private - , Company , Infantry, etc. The judge-advocate was then recalled, and the court at .m., etc. Captain President. 2d Lieut. Jvdge- Advocate. 1 The signature of the officer preferring the charge will not be entered in the record. 2 Par. 987, 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 been duly sworn. If the accused he sworn as a witness the record should show that it was at his own request. 3 Statements and arguments will not be reduced to writing in the record. 518 MILITARY LAW (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.) 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 regimental court will be transmitted without delay by the post or regimental com- mander to department headquarters." 1 8. Record of a Regimental Court-martial 2 CASE . Proceedings of a regimental court-martial convened at , pursuant to the following order: FORT , 1Q 3 X ORDERS, No. A regimental court-martial will convene at this post at - o'clock a.m., on , 19 , or as soon thereafter as practica- ble, for the trial of (such persons as have refused to consent in writing to trial by summary court). 8 DETAIL FOR THE COURT 4 (Complete record as in case of garrison court-martial.) 1 Par. 990, 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 ante, par. 78. 4 See ante, par. 77. APPENDIX E 519 9. Proceedings of a Retiring Board l Proceedings of an Army retiring board convened at , by virtue of the following orders: SPECIAL ORDERS, \ WAR DEPARTMENT, No. . [ WASHINGTON, 19. 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 , military secretary. Major , surgeon. Major , Infantry. First Lieutenant , assistant surgeon. First Lieutenant , - Infantry, recorder. Such journeys as it may be necessary for the members and recorder of the board to make in attending its sessions and return- ing to their proper stations are necessary for the public service. ******** BY ORDER OF THE SECRETARY OF WAR: Lieutenant-General, Chief of Staff. OFFICIAL: The Military Secretary. , , 19-. The board met pursuant to the foregoing order at 11 o'clock a.m. PRESENT Colonel , Infantry. Lieutenant-Colonel - - , military secretary. Major , surgeon. Major , Infantry. 1st Lieutenant , assistant surgeon. 1 See ante, par. 486 et teq. 520 MILITARY LAW 1st Lieutenant , Infantry, recorder. Captain , , appeared before the board pursuant to par. , Special Orders Ko. , War Department, dated , 19 , and stated that he did not desire counsel; (or, intro- duced 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 re- quested to respond to the challenge and inform 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 con- tinue:) Captain , having requested that the challenged mem- ber be sworn * 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 sustained, (or) that the objection was sustained. (In the latter case the record should state that the challenged member then withdrew.) Captain was then asked whether he objected to any other member; to which, etc., as before. 2 The members of the board and the recorder 3 were then duly sworn. (// the officer desires to be retired, the record will continue:) Captain - was then asked whether he desired to be re- tired, 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. 1 For form of oath, see ante, par. 167. 2 Five being, under Sec. 1246, R. 8., the minimum number of members of a retiring board, it must, when reduced below that number by chal- lenge, or if the board 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 bef re. 3 If there be a reporter, he will also be sworn. For form of oath, see ante, par. 162. APPENDIX E 521 A. (The officer can here make an oral statement or submit 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? A __ (When the officer objects to retirement, he will not be examined at this stage of the proceedings, but may introduce evidence or make a statement, as hereinafter indicated.) Major --- , surgeon, a member of the board, was then duly sworn, and testified as follows: Q. Please submit to the board the result of your examination of Captain ---- . The witness submitted a written rep'ort signed by himself 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 disability pro- ceed? 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 indicated.) Captain - stated that he had no question to ask, (or) asked the following questions : ******** (The other medical member of the board should then be similarly interrogated.) The recorder then submitted certain papers referred to the board from the Office of The Military Secretary of the Army, which were read to the board and are attached, marked - . Captain - - had no further evidence to submit nor state- ment to make. (When there is such evidence or statement, the record will duly set it forth.) The board was then closed for deliberation, and, having maturely considered, the case, finds that Captain - is incapacitated for active service and that the cause of said incapacity is -- . 522 MILITARY LAW And the board further finds that said incapacity is (or is not) an incident of service. The board then adjourned. 1 President of the Board. 2 Recorder. io. 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 first 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 under- take to state where on the army list the name of the accused will appear. Form 1. Reduction: . . . "to be reduced to the ranks." 5 Form 2. Confinement: . . . "to be confined at hard labor, 4 under charge of the post guard, for ( ) days." Form 3. Forfeiture: . . . "to forfeit- -( ) dollars of his pay, 5 now due or to become due." ( 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. jg The board met pursuant to adjournment. Present: All the members and the recorder. The foregoing proceedings were then read and approved. The board then adjourned. President of the Board. Recorder. 2 It is not necessary that the proceedings should be authenticated by the signatures of all the members of the board. 3 See ante, par. 362, 363. 4 Unless hard labor be imposed by a sentence it can not be required of the prisoner. See ante, par. 343. 5 See ante, par 351. 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. 8 By adding the words "now due or to become due" the pay rolls APPENDIX E 523 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 allow- ances: 1 . . . "to be dishonorably discharged the service of the United States, forfeiting all pay and allowances due him." Form 6. Dishonorable discharge , forfeiture of pay and allowances, and confinement: . . . "to be dishonorably discharged the serv- ice of the United States, forfeiting 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." ii. Summons for Military Witness ,19-. To , You are hereby summoned to appear on the day of , 19 , at o clock .m., before a general court-martial, con- vened at - , by Special Orders, No. -, Headquarters , dated , 19 , as a witness for the in the case of . Judge-Advocate of the Court-martial. 12. Subpoena 3 for Civilian Witness UNITED STATES ) vs. V 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., be- fore a general court-martial of the United States, convened at - - , by Special Orders, No. -- , Headquarters , dated will generally be simplified, by permitting all of the forfeiture to be collected at the next payment. 1 See ante, par. 359. 'See ante, par. 213. 3 Fees must be tendered or paid under Act of March 2, 1901. See ante, par. 214 et seq. 524 MILITARY LAW , 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. 13- Subpoena 1 Duces Tecum ( Civilian witness . ) UNITED STATES vs. V 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 you are hereby required to bring with you, to be used in evidence in said case, the follow- ing-described documents, to wit : . And have you then and there this precept. Dated at , this day of , 19 . Judge-Advocate of the Court-martial. 14. Subpoena for Civilian Witness (For deposition.') 2 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 at , detailed to take your deposition for use before 1 Fees must be tendered or paid under Act of March 2, 1901. See ante, par. 214 et seq. 2 See ante, par. 251 et seq. APPENDIX E 525 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. I5 RETURN OF SERVICE (Indorsement of preceding units.} l UNITED STATES vs. ,19-. I certify that I made service of the within subpoena on , the witness named therein, by personally 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 fore- going certificate is true. Subscribed and sworn to this day of , 19 , before me. 2 1 6. Warrant of Attachment 3 UNITED STATES'] vs. I The President of the United States, to , greeting: WHEREAS, , of - , was on the day of , 19 , at , duly subpoenaed to appear and attend at - , , on the day of , 19 , at o'clock .m., before a 1 On the back of each form of writ are forms for both certificate and affidavit. 2 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. See ante, par. 221. 526 MILITARY LAW general court-martial duly convened by Special Orders, No. , dated Headquarters Department 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 under- signed, as judge-advocate of said general court-martial, by Section 1202 of the Revised Statutes of the United States, you are hereby commanded and empowered to apprehend and attach the said , wherever he may be found within the of / and forthwith bring him before the said general court-martial assembled at , to testify as required by said subpoena. Judge-Advocate of said General Court-martial. Dated , , 19. 17. Interrogatories and Deposition 2 INTERROGATORIES THE UNITED STATES"! vs. > The following interrogatories and cross-interrogatories to be propounded under the 91st Article of War, to , stationed (or residing) 3 at , a witness for the prosecution (or de- fense) 3 in the above-entitled case now pending and to be tried before the general court-martial convened at , by para- graph , Special Orders No. , Headquarters Department of dated 19 are] acce P ted b ^ the court in P en re j agreed upon by both parties in session, the having been given reasonable opportunity to sub- advance of the assembling of the court and subject to exceptions mit cross-interrogatories ) 4 , , , - when read in covu-t [ and are *P>tf ully Awarded to the 1 State, Territory, or District where the court sits. 2 See ante, par. 251 et seq. 3 Erase the word inappropriate to the case. With the consent of the opposite party the deposition of a witness residing within 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. 4 Erase the line inappropriate to the case. APPENDIX E 527 convening authority with the request that some suitable officer may be designated to take, or cause to be taken, the deposition of said witness thereon: First interrogatory: Are you in the military service of the United States? If yea, what is your full name, rank, organization, and station? If nay, what is your full name, occupation, and residence? Second interrogatory: Do you know the accused, a in ? If yea, how long have you known him? Third interrogatory: ? Etc. First cross-interrogatory: ? Etc. First interrogatory by the Court : ? Etc. Dated at , this day of , 19 . Judge- Advocate. President. 1 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 . The deposition, when taken, to be sent by him to , the president of said court at . By command of General . * Military Secretary. DEPOSITION. the witness above named, having been first duly sworn by me, , a 3 , stationed (or residing) 4 at , doth depose and say for full answers to the foregoing in- terrogatories, as follows: 1 If taken in advance of the assmebling of the court, the inter- rogatories 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. 3 Insert official character: as "Trial Officer Summary Court," "No- tary Public," etc. 4 Erase the word inappropriate to the case. 528 MILITARY LAW 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 deposition of the said to be taken on the foregoing interrogatories and cross-interrogatories, do certify that it was duly made and taken under oath. 1 8. Account of Civilian Witness Not in Government Employ The United States, to , Dr. 190 EXPENSES AS WITNESS BEFORE A MILITARY COURT CONVENED UNDER ANNEXED ORDERS. From , 19 , to , 19 . For mileage from to and return, being miles at five cents per mile. . For allowance while in attendance on said court, from . 19 t to , 19 , as per certificate of Judge-Advocate hereon, days, at $1.50 per day Total I solemnly swear that the above account is correct ; that I have not been furnished with Government transportation for any part of the journey for which mileage is charged. , Witness. 1 The jurat to be signed by the officer administering the oath, who will add his official designation. (See ante, par. 256.) If the oath is administered by a notary public, his seal will be affixed to the deposition. 2 This certificate will only be made where the officer has caused the deposition to be taken; where the officer himself administers the oath it is superfluous. APPENDIX E 529 Sworn to and subscribed before me at , 19-. -, on this day of I certify that Judge-Advocate* -, a civilian not in Government employ, has been in attendance as a material witness from , 19 , to , 19 , inclusive, before a court-martial, duly convened at this place, and that he was duly summoned thereto from . Place . Date , 19. Judge- A dvocate .* Received this of -, Paymaster, U. S. A., dollars, in full of the above account, by Check No. , on . , Witness. (SIGNED IN DUPLICATE.) 19. Account of Civilian Witness in Government Employ -,Dr. The United States, to 190 EXPENSES AS WITNESS BEFORE A MILITABY COURT CONVENED UNDER ANNEXED ORDERS. From , 19, to , 19. For actual cost of travel from to and return, as per memorandum annexed ... For actual cost of meals and rooms while traveling to and from said court between above dates, inclusive, days . For actual cost of meals and rooms while in attendance on said court from , 19 , to , 19 , as per certifi- cate of the Judge-Advocate hereon, days (see Rule No. 7, post, p. 532) Total. . . 1 If the witness be summoned for attendance before a summary court, the summary court officer will make the necessary certificate as to fact of attendance and administer the oath-respecting his expense account (Digest Opin. J. A. G., Sec. 2406). 530 MILITARY LAW - I solemnly swear that the above account is correct ; that I have not been furnished with Government transportation for any part of the journey for which travel fare is charged, and that the journey was performed without unnecessary or avoidable delay. , Witness. Sworn to and subscribed before me at , on this day of 1Q i -Li/ Judge- A dvocate . l I certify that , a civilian in Government employ, has been in attendance as a material witness from , 19 , to , 19 , inclusive, before a court-martial, duly convened at this place, and that he was duly summoned thereto from . Judge- A dvocate . l Place - . Date - , 190. Received this - of -- , Paymaster, U. S. A., - y- dollars, in full of the above account, by Check No. , on , Witness. (SIGNED IN DUPLICATE.) 20. Rules Governing Accounts of Civilian Witnesses 2 The Paymaster is, under paragraphs 998 to 1002, Army Regu- lations, 1904, governed by the following rules in the treatment of vouchers for travel expenses of civilian witnesses before mili- tary courts: 1. The voucher must be in duplicate, accompanied by duplicate authenticated copies of the order convening the court or appoint- ing summary court. 2. The affidavit of the witness and the judge-advocate's or sum- mary court officer's certificate (on face of voucher) are required in all cases. The voucher and all accompanying papers must be in duplicate. 1 See ante, No. 18, note, p. 529. 2 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 Military Secretary of the Army. The forms for accounts of civilian witnesses and of reporters are ob- tained from the Paymaster-General. APPENDIX E 531 3. A civilian not in Government employ l duly summoned to appear as a witness before a military court will receive $1.50 per day for each day actually in attendance upon the court, and 5 cents a mile for going from his place of residence to the place of trial or hearing, and 5 cents a mile for returning ; but in Wyoming, Mon- tana, Washington, Oregon, California, Utah, New Mexico, Arizona, and Porto Rico he will be paid 15 cents for each mile necessarily traveled over any stage line or by private conveyance, and in Porto Rico 10 cents for each mile over any railway in such travel. 2 Civilian witnesses, not in Government employ, summoned to attend courts-martial in the Philippine Islands, are entitled to SI. 50 per day for each day of attendance on the court, and 5 cents per mile for the distance traveled to and from the court. If fur- nished with transportation by the Government, 42.858 per cent of the 5 cents per mile will be deducted as cost of transportation fur- nished, and 57.142 per cent allowed for subsistence and other ex- penses of the witness (Cir. 45, A. G. 0., 1902, and Act of Philippine Commission No. 1130, April 28, 1904). In case a witness duly subpoenaed before a general court-martial refuses to appear or qualify as a witness or to testify or produce documentary evidence as required by law, he will at once be ten- dered or paid by the nearest paymaster these fees and mileage and will thereupon be again called upon to comply with the require- ments of law. Civilian witnesses will be paid by the Pay Depart- ment (A. R. 1000). 4. The items of expenditure authorized in paragraphs 998 to 1002, Army Regulations, will be set forth in detail in a memoran- dum which will be attached to each voucher. No other items will be allowed. The correctness of the items will be attested by the affidavit of the witness, to be made, when practicable, before the judge-advocate. 5. The certificate of the judge-advocate will be evidence of the fact and period of attendance, and will be made on the voucher. 6. Upon execution of the affidavit and certificate the witness will be paid upon his discharge from attendance, without await- ing 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. 1 A retired Army officer is a civilian not in Government employ in contemplation of A. R. 999 (10 Comp. Dec. 51). An employee of the civil government of the Philippine Islands, paid from Insular funds, is not in the employ of the Government within the meaning of A. R 999. 2 Par. 999, A. R., in accordance with Section 848, R. S., act August 3, 1892, vol. 2, Sup. R. S., p. 65, and act approved March 2, 1901, as to Porto Rico. 532 MILITARY LAW 7. Civilian witnesses in Government employ will receive as follows : (a) Amount actually paid for cost of transportation or travel fare. (6) Amount actually paid for cost of transfers to and from railway stations, not exceeding 50 cents for each transfer. (c) Amount actually paid for cost of one double berth in sleep- ing-cars or on steamers where an extra charge is made therefor. (d) The actual cost of meals and rooms at a rate not exceeding $3 per day for each day actually and unavoidably consumed in travel or in attendance upon the court. 8. Travel must be estimated by the shortest available usually traveled route; the charge for cost of travel (items a, 6, c) by es- tablished 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 un- avoidable detention. 9. The voucher, or the order for attendance, will be presumed to show in all cases, by indorsement or otherwise, if transporta- tion in kind or commutation of rations has been furnished. Trans- portation in kind will, for any distance covered thereby, be a bar to payment of item a. Indorsements of transportation furnished will be scrutinized to ascertain if any part of item c has been in- cluded. Commutation of rations will be a bar to payment of item d. Transportation and commutation of rations will be a bar to any payment. 10. No per diem allowance can be made where the attendance upon the court does not require the witness to leave his station. (This applies only to civilians in Government employ.) 11. Compensation to civilians in or out of Government employ, for attendance upon civil courts, is payable only by the civil au- thorities. 12. If a witness is in Government employ the judge-advocate will state the fact. If it does not appear in the certificate or else- where in the papers, and is not known to the paymaster, it will be assumed that the witness is not in Government employ. 13. Whenever needed, judge-advocates can procure blank ac- counts for civilian witnesses from any army paymaster or from the Paymaster-General's Office. The accounts may then be made out upon the witness's discharge from attendance. If no pay- master be present at the place where the court sits, the accounts, authenticated as above directed, may be transmitted to any pay- master, with confidence that the witness will receive his pay with- out unnecessary delay. APPENDIX -E 533 14. Accounts of citizen witnesses are not transferable. See Cir. 13, A. G. O., 1895. 15. Signature of witness when signed by mark must be witnessed. 21. Account of Reporter 1 The United States, to , Reporter, Dr. (Place of business or residence.) (City or town.) (State or Territory.) Date. To services as reporter before a general coi.rt- martial convened at pursuant to Special Orders No. , Headquarters Department of ,19 To hours before the court at 1 per hour. . . t . To folios at 10 cents per folio To folios at 5 cents per folio To folios at 2 cents per folio To days in going to, attendance, and return from court, at $3 per day 2 To miles 2 at 8 cents per mile from to in going 3 to the court Total. Dollars. Cts. I CERTIFY that was employed by me as a reporter for a court-martial under Section 1203, Revised Statutes, and that the account for his services as stated above is correct and just. Received, at the day of Judge- A dvocate . 19, of , Paymaster, U. S. A., the sum of dollars and cents, in full of the above account, which I certify to be correct. Check No. , on . (SIGNED IN DUPLICATE.) 1 The authority of the department commander for the employment of a reporter for a court-martial, and of the Secretary of War for a court of inquiry or a retiring board, must be filed with the voucher on which payment is made. 2 Mileage and per diem is allowed only when the distance to place of holding the court exceeds 10 miles. 3 No mileage is allowed for returning from the court. 534 MILITARY LAW 22. Form for Special Orders HEADQUARTERS DEPARTMENT OF , -, 19. SPECIAL ORDERS, ) No. . f 3. Recruit , General Service, U. S. Army, having been tried by a general court-martial convened at , and found guilty of fraudulent enlistment, in violation of the 62d Article of War, was sentenced "to be dishonorably discharged the service of the United States, forfeiting all pay and allowances due him, and to be confined at hard labor at such post as the reviewing authority may direct, for the period of one (1) year." The sentence is approved and will be duly executed. - is designated as the place of confinement, to which place the prisoner will be sent under proper guard. By command of Brig.-Gen. : > Military Secretary. FORM A 23. Habeas Corpus by United States Court 1 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 general prisoner under sentence of general court-martial") under the following circumstances: That the said was duly enlisted as a soldier in the service of the United States at , , on , 19 , for a term of years. (// the offense is fraudulent enlistment this recital should be omitted.) (Here state the offense. If it is fraudulent enlistment by represent- ing himself to be of age, it may be stated as follows:) 1 See ante, par. 226. APPENDIX E 535 That on the day of , 19 , at , , the said , baing 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, re- ceived pay and allowances (or either) thereunder. (// the offense is desertion, it may be stated substantially as follows:) That the said deserted said service at , , on , 19 , and remained absent in desertion until he was apprehended at , , on , 19 , by , and was thereupon committed to the custody of the respondent as commanding officer of the post of . That said has been placed in confinement (or "arrest," as the case may be), charged with said offense, and formal charges against him therefor have been preferred, a copy of which is hereto .annexed (or "are being prepared "), and that he will be brought to trial thereon as soon as practicable before a court-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 is hereto annexed"). (// the party held is a general prisoner, the following paragraph should be substituted for the preceding paragraph:) That the said - - was duly arraigned for said offense before a general court-martial, convened by Special Orders, No. , dated Headquarters Department 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 commanding said Department of - - for the time being") as required by the 104th Article of War. A copy of the order promulgating said sen- tence is hereto attached. In obedience, however, to the said writ of habeas corpus the respondent herewith produces before the court the body of the said - , respectfully refers to the decisions cited in the annexed brief, and for the reasons set forth in this return prays this honorable court to dismiss the said writ. Major, U. S. Infantry. Dated , , ,19. 536 MILITARY LAW FORM B 24. Habeas Corpus by State Court 1 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 pro- duced 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 jurisdict ; on 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 authority for his action, and prays this court (or "your honor") to dismiss the writ. Major, U. S. Infantry. Dated , , , 19. 25. Instructions as to Returns to Writs of Habeas Corpus The following instructions in regard to returns under paragraphs 1007 and 1008, Army Regulations, in the cases of soldiers who have committed military offenses and are held for trial or punish- ment therefor, and of general prisoners, are for the information and guidance of all concerned: 1. The return under paragraph 1008, Army Regulations, will be made in accordance with Form A (see ante, No. 23), and will refer, as in last paragraph of that form, to the brief of authorities which follows these instructions, and a copy of that brief will be annexed to the return. Should the court order the discharge of the party, the officer making the return, or counsel, should note an appeal pending instructions from the War Department, and he will re- port to The Military Secretary of the Army the action taken by the court and forward a copy of the opinion of the court as soon as it can be obtained. 2. The return under paragraph 1007, Army Regulations, will be made in accordance with Form B (see ante, No. 24), but a copy 1 See ante, par. 227. APPENDIX E 537 of the brief of authorities is not intended to be attached to the returns to writ of habeas corpus issuing frcm a State court. 26. Brief to be Filed with Return to a Writ of Habeas Corpus Issued by United States Court in Case of a Soldier 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 sentence 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 enlist- ment." This the court refused to grant, holding that Section 1117, Revised Statutes, "was made for the exclusive benefit of parents and guardians," and that, quoting from the syllabus A minor over sixteen years of age, who at the time of his enlistment makes affidavit that he is twenty-one years of age, will not, on his own application, 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 demanded 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 1 See ante, par. 710. 538 MILITARY LAW is for the benefit of tne 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 de facto, but de jure, a soldier amenable to military jurisdiction. All the cases cited are instructive as illustrative of the different circumstances under which this principle has been declared. In the Lawler case the deserter was arrested and "held as such awaiting trial, which will be as soon as a court-martial can be con- vened 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. 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 IF THE SOLDIER IS HELD PURSUANT TO A SENTENCE OF A COURT-MARTIAL OR ANY STEP HAS BEEN TAKEN WITH A VIEW TO BRINGING HIM BEFORE SUCH COURT In re Kaufman, 41 Federal Reporter, 876; In re Dohrendorf 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. v. 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 Scott, 144 Fed. Rep., 79. In the Kaufman case the father sought the discharge of his son, who was held by the military authorities and had been ordered foefore 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 1*3 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 APPENDIX E 539 years and seven months old at the time of enlistment. He deserted, and at the time of the filing of the petition was held in custody awaiting the action of the reviewing authority on the proceedings of the court-martial. His father sought the discharge of his son on the ground of infancy at the time of enlistment. The court refused to discharge him, holding that " an enlistment contrary to law is not void, but voidable"; that the court-martial had jurisdiction of the offense, and the soldier " must be remanded to await the result of his trial." The Dowd case arose on the application of the mother for the release of her son, who was held under sentence of a summary court. The court held, quoting from the syllabus: The enlistment of a minor in the Army without the consent of his parents or guardian, required by Revised 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 determined 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 pro- ceedings 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 authorizes 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., Sec. 1258 and 1264, and notes.) 540 MILITARY LAW The soldier should not be allowed to escape punishment 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 misde- meanor, 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 sixteen years old or over "enlisting without the consent of his parents, on representation that he is of age, becomes a soldier amenable to military jurisdiction for military offenses, and subject to release from service only on application from his parents, who 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 recognizes the parents' right 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 cus- tody 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 as 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 consideration 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 represented by the chief of police who had apprehended him. INDEX PAR. PAGE Abandoned property 83S 450 Abandoning fort, post, or guard, etc. (see Art. 42) 749 372 Abatement (see Pleas) 180 94 Absence: members of boards (see Boards). members of courts-iLartial (see Courts-martial). members of courts of inquiry (see Courts of Inquiry). more than one mile from camp (see Art. 34) 741 361 of officers and soldiers at muster (see Arts. 7 and 12) . 719 335 Absence without leave (see Art. 32) 739 359 acquittal of, includes desertion connected with offense. 754 376 defense for 739 359 forfeitures for (see Forfeitures). included in desertion. . 754 376 punishment for (see Punishments), stoppages for (see Stoppages). Accomplices : as witness, credibility 627 284 testimony of, when admitted 627 285 Accountability for property (see Public Property). Accounts: civilian witness, rules governing. Appendix E 530 civilian witness in government employ, form for, Ap- pendix E 529 duplication of pay accounts (see Arts. 60 and 61). of civilian witness not in government employ, form for, Appendix E 528 of reporter, form for, Appendix E 533 Accused : amenability to trial 54 29 arraignment of 391 181 arraignment of. in irons 156 81 asking questions after examination of witness has closed 246 121 as witness 263 1 26 before court of inquiry, may testify at his own request . 470 216 cannot be compelled to incriminate himself 626 284 challenges by 388 180 541 542 INDEX Accused (continued): counsel tor 154 so , defense of (see Defenses). duty of counsel for 157 gj_ entitled to copy of record of trial, how secured 821 435. escape after jurisdiction is assumed for trial 156 81 evidence as to character, when admissible 591 26G introduction of 154 Q, judge-advocate as counsel for, duty of 155 SO- latitude allowed in defense 267 129 f 262 125. may testify in his own behalf -J 550 247 I 626 284 may withdraw or change plea 207 104 pleas of (see Pleas). pleading under wrong name, etc 182 95 present at revision proceedings when 415 190 presumption of innocence 602 272 punishment of (see Punishments). right to challenge (see Challenge) 166 86 right to cross-examine witness 241 120 sentence of (see Sentence). served with copy of charges 128 66 statement of 402 184 Accuser or prosecutor : court to be appointed by next higher commander / 780 418 when \ 779 417 defined 43 22 how determined in case of a commander authorized to convene court 43 22 may remain in court after testifying 233 116 provisions as to, limited to general courts-martial. ... 43 23 Acquittal : effect of, on charge of desertion, as to absence without leave involved 754 376 of minor included offense precludes trial on major offense 199 101 of specific offense, acquits of minor included offense. . 198 101 tie vote acquits (see Voting) 376 175 Act: establishing summary court, Appendix B 480 to prevent failure of military justice, Appendix C. . . . 482 Adjournment (see Record) 411 187 from day to day 411 188 shown in record and authenticated by judge-advocate 411 188 sine die 411 187 Administrator : commander in charge of effects of deceased soldier not administrator 833 447 officer in charge of effects of deceased officer not an administrator 832 445- Admissions pertain to civil cases (see Confessions) 583 262 INDEX 543 PAR. PAGE Affidavit (see Depositions): as to damage, loss, etc., surveys on property 539 242 for arrest of offenders against U. S. laws, how and before whom made 839 452 for search warrant, how and before whom made 839 453 Alarms : false (Art. 41 ; see False Alarms) 748 371 Alibi (see Defense): burden of proof 289 136 Allowances : forfeiture of (see Forfeitures). Amenability: double, of person in military service 112 59 of military persons to suit in civil courts in certain cases 116 61 to military jurisdiction (see Jurisdiction). of members of military establishment (see Art. 64). . . 771 414 militia (see Arts. 64 and 124) 831 440 retainers to camp (see Art. 63) 770 413 volunteers (see Arts. 64 and 123) 830 438 Animus: establishes fact as to "Accuser or Prosecutor " 779 417 Appeal (see Jurisdiction): courts-martial judgments, not subject to 62 32 ( 87 47 from regimental court for doing justice \ 89 48 t 737 357 Appearance : of witness (see Witness; Subpoenas) 212 107 Appendices: Appendix A, Articles of War 459 Appendix B, Act Establishing Summary Court 480 Appendix C, Act to Prevent Failure oi Military Jus- tice 482 Appendix D, Executive Order Establishing Limits of Punishment 484 Appendix E, General Forms 494 Apprehension of Deserters (see Deserters). Approval of Proceedings (see Reviewing Authority). Armies : persons serving with, in the field 770 413 purpose for which employed in enforcement of the / 690 315 laws \ 690 316 f 829 437 rank of officers in \ 830 438 [ 831 439 Arms: accountability for (see Returns) 717 334 544 INDEX PAR. PAGE Army: articles of war for the government of 706 324 as posse comitatus, only when 689 315 command in 829 437 Army Regulations: administrative rules 12 7 approved by Congress, lorce of 13 8 classes of 12 7 enacted by Congress, how, force of, how changed or modified 12 7 founded on constitutional power of the President. ... 13 8 how made, authority for 11 6 issued by the President as commander-in-chief 12 7 how modified or changed 12 7 made pursuant to, or in execution of, a statute, force of, how changed or modified 12 7 mandatory upon the army 13 8 Arraignment (Art. 89; see Plea^): accused may be arraigned on several charges at one trial 120 63 accused standing mute, or answering foreign to the / 209 105 purpose \ 796 423 must be made after court and judge-advocate are sworn 393 182 to be shown in record 391 181 when and how made 177 93 Arrest : breach of, by officer, penalty 93 52 breach of, unintentional or inadvertent 103 55 by civil authority of soldiers on mesne process or for debt 697 319 by civil authorities of persons in the military service. 107 57 by junior under Art. 24 94 53 by military officer, no warrant required 90 50 by State authorities, action to be taken by officer. . . 701 321 definition of 90 50 f 91 51 duration of <{ 777 415 I 778 416 effect of status of, on officer 99 54 exception to rule as to who may make, Art. 24 94 52 execution of order by military officer 90 51 for military offense 90 50 for offense against the U. S. laws, how and by whom made 839 451 how made in civil life 90 50 limit, extension of 102 55 of enlisted men (see Enlisted Men; Art. 66) 104 55 of enlisted men 773 414 of medical officers 93 52 of officers (see Art. 65) 772 414 of officers, how made 92 51 INDEX 545 PAR. PAGE Arrest (continued) : ot officers, to be for serious offenses only 93 52 ot persons in military service at a military post 108 58 ol retired officers 95 53 of suspected persons, under martial law 674 307 officer, considered on parole 98 54 officer, entitled to copy of charges and to trial, limits. 778 416 officer under charge of guard, not relieved from re- sponsibility of status 100 54 officer, not to wear sword 98 54 officer, deprivation of sword not essential 99 54 officer on honor to keep 101 54 omission does not aft'ect jurisdiction ot court-martial. . 93 52 penalty for breach of, by officer 772 414 penalty for breach, limited to close arrest 103 55 period of, limited by Arts. 70 and 71 91 51 powei given under 24th Article of War 731 352 procedure to secure release from, Art. 70 778 417 status ot officer in 96 53 Arson: definition of, what buildings included 765 388 intent, essential to crime 765 389 in territory within exclusive jurisdiction of the United States 765 389 what constitutes 765 389 Articles of War, Appendix A 459 amendments of (note) 11 6 enactment of 707 325 history of adoption, etc 9 6 meaning of word "officer " in, and "convictions " in. 706 324 power of Congress to enact, derived from the Consti- tution 10 6 separately considered 705 324 sources of 8 5 Article 1, officers to subscribe to 708 325 Article 2, oath of enlistment, by whom administered. . 709 325 Article 3, fraudulent enlistments, form for charges of (see Forms; Enlistments) 710 328 prohibited enlistments 710 325 Article 4 (see Discharge): discharge, effect of 360 169 discharge to be given in writing, by whom given 711 329 Article 5 /false muster 712 330 Article 6 (see Muster), taking pay, etc., for muster. . 713 331 Article 7 (see Returns): commanding officers to report absent officers.. . 714 332 returns to be made by commanding officers of troops 714 331 Article 8, false return of command, or its arms, etc., penalty 715 ?32 returns of property to be supported by vouchers 715 332 Article 9, captured property 716 333 546 INDEX Articles of War (continued) : Article 9, duty of commanding officer 716 334 Article 10, accountability ot commanding officer to colonel lor arms, etc 717 334 responsibility for property 717 334 Article 11, furloughs, when and by whom granted. . . . 718 335 Article 12, certificate as to absent officer or soldier at muster (see Art. 7) 719 335 Article 13, penalty for false certificate of absence or pay of an officer or soldier (seeArts. 7andl2) 720 335 Article 14, making false muster knowingly (see Arts. 5. 6, 12, and 13) 721 336 making false muster, evidence of two witnesses required, penalty 721 336 Article 15, accountability jor suffering loss, or de- struction of public property 722 336 suffering loss of public property through neg- lect, character of neglect 722 337 Article 16, ammunition, wilful waste of, by soldiers. . 723 337 Article 17, charges under, not to be drawn in alter- native form 119 63 724 338 clothing, title to ......................... j 339 341 form for charges under, Appendix E ......... 494 limits of punishment, Appendix D ........... 485 selling or through neglect losing or spoiling horse, arms, clothing, etc., penalty ......... 724 337 Article 18, officer laying duty or imposition on victuals, etc .................................. 725 342 Article 19, contemptuous or disrespectful words against Congress and other civil authorities ....... 726 342 contemptuous or direspecttul language against the President and other authority ......... 726 342 disrespectful words, what so considered ....... 726 340 Article 20, disrespect toward a commanding officer.. . 727 344 form for charges under, Appendix E ......... 495 limit of punishment, Appendix D ............ 485 meaning of term "commanding officer" ...... 727 344 nature of, how exhibited ................... 727 344 need not be intentional ..................... 727 344 Article 21, disobedience of orders, character of order, how issued .................................... 728 347 disobedience of orders consists in what, pre- sumption (see Disobedience of Orders) ..... 728 346 disobedience of orders, general prisoner ...... 728 348 f 286 1 3 5 disobedience of orders, illegal order as defense < -gg 347 form for charges under, Appendix E ......... 495 meaning of phrase "being in the execution of his office " .............................. 728 345 meaning of term "superior officer " ......... 728 345 obedience to legal order as defense f 286 < INDEX 547 PAR. PAGE Articles of War (c ,ntin u ed) ; offering violence to, striking, threatening, or disobeying order of superior officer 728 344 orders delivered by staff officer 728 347 responsibility lor obedience to orders of supe- rior 728 347 threatening language 728 346 use of abusive language to superior officer. . . . 728 346 Article 22. beginning, exciting, etc., mutiny or sedition (see Mutiny; Sedition) 729 348 Article 23, mutiny or sedition, how proved 729 350 suppression of information as to mutiny (see Mutiny; Sedition) 730 350 Article 24, disorders, frays, and quarrels, authority to suppress 731 351 arrests, authority for, required of whom 731 351 arrest, disobedience of order of 731 352 disorder, etc., character of 731 352 form for charges under, Appendix E 495 limits of punishment, Appendix D 485 meaning of word "officers," exception to rule, includes non-commissioned officers 94 52 Article 25, authorizes only "prevention and re- straint" 732 353 use of reproachful speeches or gestures by offi- cers or soldiers prohibited 732 352 use of reproachful speeches or gestures by officer, purpose of arrest 732 353 Article 26, challenges, sending or accepting, to fight a duel, prohibited (see Duels; also Arts. 27, 28) 733 353 Article 27, suffering parties to go forth to fight a duel, prohibited (see Duels; Arts. 26, 28) 734 355 duty of commander of guard 734 355 duty of commanding officer 734 355 Article 28, purpose of article (see Duels; Arts. 26, 27) 735 356 upbraiding for refusing challenge, prohibited. . 735 356 Article 29, reparation of wrong of officer by regimental commander 736 356 wrong complained of, character of 736 357 Article 30 (see Wrongs; Regimental Court for doing Justice) 89 48 appeals under 737 358 court organized by regimental commander only. 88 48 jurisdiction of court; not organized for trial of cases 87 47 meaning of words "any officer "/ 737 358 regimental court for doing justice j 7^7 ^ soldier wronged by officer, remedy for 737 357 Article 31, absence, lying out of quarters, etc 738 358 who is "superior officer " 738 358 548 INDEX PAR. PAGE Articles of War (continued) : Article 32 (see Art. 47): absence without leave, character of absence. . . 739 359 finding of, as lesser offense on charge of / 298 142 desertion \ 143 forfeitures (see Forfeiture). form for charges under, Appendix E 496 limits of punishment, Appendix D 486 stoppages for (see Stoppages). time to be made good on conviction 739 360 Article 33, failure to repair to place of parade, etc. . . . 740 360 form for charges, Appendix E 496 limits of punishment, Appendix D < . 4o/ necessity which excuses, under 740 361 Article 34, absence from camp on verbal leave, limit of. 741 361 written leave for absence from camp more than one mile 741 361 Article 35, retiring to quarters- at retreat, purpose of. . 742 362 Article 36, hiring another to do his duty, prohibited, history 743 363 Article 37, hiring another to do his duty, non-commis- sioned officer not to connive at 744 363 Article 38, drunkenness on duty 745 364 drunkenness, character of 745 366 drunkenness, character of, caused by drug. . . . 745 366 drunkenness defined 745 364 forms for charges under, Appendix E 496 "found drunk " necessary to charge 745 365 limit of punishment, Appendix D 487 meaning of words "on duty " 745 364 Article 39, duty of sentinel on post 746 367 duty of sentinel as to escaping prisoner 746 370 form for charges under, Appendix E 497 meaning of "post " 746 367 sentinel, homicide by, in case of escaping pris- oner 746 370 sentinel, responsibility and duties of 746 367 sentinels, responsibility for prisoners (see Sen- tinels) 746 368 sentinels, responsibility of officer for placing on duty 746 368 sentinel sleeping on post, defense 746 368 sentinel, quitting post 746 368 Article 40, form for charges under, Appendix E 497 limits of punishment, Appendix D 487 meaning of "guard " 747 371 meaning of "urgent necessity " 747 371 quitting guard, platoon, etc 747 371 Article 41 , false alarms 748 371 false alarms, how caused 748 371 purpose of article 748 371 Article 42, abandonment of post 749 372 casting away arms, etc 749 372 INDEX 549 PAR. PAGE Articles of War (continued} : cowardice 749 372 meaning of term "post " 749 372 misbehavior before the enemy 749 372 pillage or plunder 749 372 Article 43, abandonment of post by commander under compulsion 750 373 compelling commander to abandon or give up post 750 373 compelling commander to give up post, animus of act 750 373 compelling commander to give up post, pen- alty 750 373 constraint of commander 285 135 Article 44, "countersign " 751 373 making known watchword 751 373 making known "parole " 751 374 specific intent not required 751 374 "watchword," meaning of term 751 374 Article 45, application of article 752 374 enemy, who meant by the term 752 374 forbidden relations with enemy (see Art. 46) .... 752 374 relieving the enemy 752 374 "whosoever," meaning of word 752 375 Article 46, correspondence with enemy 753 375 enemy, meaning of the word 752 374 forbidden relations with the enemy (see Art. 45) 753 375 giving intelligence to the enemy 753 375 Article 47, desertion (see Desertion; Pleas) 754 375 desertion, acquitted of, effect 353 166 desertion, finding of lesser included offense. . . . 298 142 desertion, intent not to return essential 754 376 desertion, limits of punishment for, Appen- dix D 484 desertion of minor 754 378 desertion of officer 754 378 desertion, previous convictions of 306 145 desertion, reward for deserter, how paid 754 376 / o/> QA desertion, statute of limitations < 1Qft OQ ( i sy yo desertion, stonnages (see Stoppages) 754 377 desertion, liability for 755 379 desertion, time lost, to be made good j lj^ jS forfeiture for (see Forfeitures) 754 377 form for charges under, Appendix E 497 Article 48, deserter, liability to trial after term of en- listment 755 378 deserter, restoration to duty without trial. ..... 755 379 deserter, to make crood time lost (see Art. 47). . 754 377 deserter, waiver of liability 755 379 Article 49, officer leaving post before acceptance of resignation, "intent " 756 380 550 INDEX PAR. PAGE Articles of War (continued) ; officer resigning does not thereby separate him- self from service 756 380 officer resigning not to leave post till accept- ance 756 379 Article 50, duty of officer or soldiei as to soldier discov- ered in another regiment 757 380 enlistment in another regiment, etc., not void but voidable 757 380 enlistment in another regiment pnma facie evidence of desertion 757 380 officer not reporting deserter, penalty 757 381 soldier not discharged, enlistment in another regiment 757 380 Article 51, advising or persuading officer or soldier to desert 758 381 desertion, advising, etc. (see Art. 47) 758 381 form for charges under, Appendix E 498 limits of punishment, Appendix D 488 offense, by citizen, punishable by U. S. Courts. . 758 381 Article 52, attendance at divine service 759 381 behavior at divine service 759 382 Article 53, use of profane oath or execration by officer, penalty 760 382 use of profane oath or execration by soldier, penalty '. 760 382 f 531 239 | 532 239 Article 54, boards convened under -J 533 239 | 534 240 I 535 240 board convened under, members act under oath of office 535 240 board convened under, organization of 535 240 citizens, evidence of 533 240 citizens, injuries to 761 382 complaint, how made 533 239 duty of commanding officer 761 382 preservation of order, in garrison and on the march 761 382 procedure under 533 239 purpose of article 531 239 reparation made for injury to person or prop- erty 531 239 stoppage under, purpose of (see Stoppage). . . . 534 240 Article 55, behavior of officers or soldiers in quarters and on the march 762 383 defense, orders as 762 383 good order to be maintained in quarters and on the march 761 382 property, authority for destruction of, by whom given 762 383 property, wanton or malicious destruction of, penalty 762 383 INDEX 551 PAR. PAGE Articles of War (continued) : waste, commission of, prohibited 762 383 Article 56, applicable in foreign parts 763 383 piotection of Article, not limited to "camp " . . 763 384 violence to persons carrying provisions, by offi- cers or soldiers 763 383 Article 57, applicable in loreign parts or territory in rebellion 764 384 Safeguard, forcing, penalty 764 384 saleguard, knowledge essential to convict of violation of 764 384 safeguard, meaning ot word 764 384 safeguard, offense, gravity of 764 384 Article 58, applicable in time of war, insurrection, or rebellion 765 385 arson (see Arson) 765 388 assault and battery (see Assault and Battery). 765 393 assault and battery with intent to commit rape 765 395 assault and battery with intent to kill (see Assault and Battery) 765 393 burglary (see Burglary) 765 387 form for charges under, Appendix E 498 homicide 765 390 jurisdiction ot courts-martial over crimes in time of war, etc 765 385 larceny (see Larceny) 765 385 laws of the land, meaning ot term 107 57 limits of punishment 765 396 local laws of foreign country, not applicable.. . 765 396 manslaughter (see Manslaughter) 765 390 mayhem (see Mayhem) 765 389 murder (see Murder; Homicide) 765 392 offenses punishable by courts-martial in time J 316 150 of war \ 765 385 rape (see Rape) 765 394 robbery (see Robbery; Embezzlement) 765 386 wounding by shooting or stabbing, etc 765 394 Article 59, applicable to officers or soldiers only 766 396 application to be made to commanding officer tor arrest of officer or soldier accused of crime. 766 396 arrest of officer or soldier for capital crime or / 107 57 offense against citizens \ 766 396 civil authorities to apply to commanding officer for arrest of officer or soldier 766 396 civil power supreme in time of peace 766 397 delivery of military offenders to civil authority. 766 396 does not apply to service ot subpoena 110 59 laws of the land, meaning of term 107 57 not applicable to civilians employed or living at a military post 1 10 58 not applicable to offenses committed in place under exclusive jurisdiction of the U. 8 110 58 officer and soldier amenable to Territorial laws . 766 397 552 INDEX PAE. PAGE Articles of War (continued) ; power of State and U. S. authorities 766 397 soldier in confinement or arrest not to be sur- rendered Ill 59 Territorial statutes operative on military reser- vations therein 766 397 Article 60, amended, Appendix C. % 4b& blank receipts prohibited 767 403 certificate of receipts of property, responsi- J 767 3b8 bility I 767 403 claims, false 01 fraudulent. , -j ! conspiracy to defraud 767 398 duplication of pay accounts 767 400 embezzlement definition of (see Embezzle-/ 767 399 ment) [ 767 404 form lor charges under. Appendix E 498 offenses under, intent | ^7 398 property delivered, not less than receipted j 767 398 for. ;.; I 76 / 402 property, receiving in pledge U, S. (see Prop- J 767 399 erty). \ 767 407 short payments | ?67 398 ( 7AT QOQ stealing property of U. S. (see Larceny). . . . < ';!' j^j J 767 398 1 763 399 / 767 398 1 767 401 false oath to claim (see Perjury) false or fraudulent statement. . I i 67 400 false swearing 767 400 forging or counterfeiting signatures to vouchers (see Forgery; Counterfeiting) 767 398 form for charges under, Appendix E 498 frauds, embezzlements, etc 767 398 funds, misappiopriation of < i^L limits of punishment, Appendix D 488 Article 61, charge under, in addition to offense under specific article 117 63 conduct unbecoming an officer and a gentleman, nature of offense 768 409 finding of lesser kindred offense under Art. 62 { %~[l { 768 410 form foi charges under, Appendix E 499 offense, character of, as affecting military ser- vice 768 410 offense cognizable under, determined by court.. 54 29 offense under, what constitutes 768 410 sentence, valid only as to dismissal 768 410 Article 62, conduct to the prejudice of good order and military discipline 769 411 INDEX 553 PAR. PAGE Articles of War (continued): capual crime not chargeable under, even in lesser degree 769 411 crimes, as distinguished from neglects and dis- orders. . . 769 411 disorders, include what 7C9 412 drunkenness and disorderly conduct, conviction of, by civil authorities 769 412 finding of lesser kindred offense under 297 142 forms for charges under, Appendix E 500 limits of punishment, Appendix D 488 neglect, definition of 769 412 purpose of Article 769 411 Article 63, camp-followers, include whom 770 413 jurisdiction over, not authorized in time of. ... peace 770 414 persons serving with armies in the field, include whom, when punishable 770 413 retainers to camp, e^c., include whom 770 413 Article 64, all troops in U. S. service subject to] *, oq Articles of War at all times and in all places (see } ~2r Jurisdiction) . J 771 414 military offenses not territorial 771 414 Article 65, arrest and confinement of officers (see / 93 52 Arrest) \ 772 414 Article 66, arrest and confinement of soldiers (see / 104 55 Confinement; Punishment; Sentence) \ 773 414 Article 67, receiving and keeping prisoners, duty of officers commanding guard (see Prisoners) 774 414 Article 68, duty of officer in charge of, to report pris- oners (see Prisoners) 775 415 Article 69, officer in charge of, not to release or suffer prisoner to escape 776 415 Article 70, arrest and confinement of officer or soldier before trial, duration 777 415 remedy for arrest or confinement beyond limit. . 777 416 Article 71, arrest, duration of, charges not served, ( 91 51 release from | 778 416 charges to be furnished officer in arrest 778 416 meaning of words of Article 778 416 officer not authorized to release himself 778 417 Article 72, accuser or prosecutor, meaning of term . . . 779 417 convening authority, court-martial (see Con- f 34 18 vening Authority) \ 779 417 Article 73, commander of division or separate brigade. 430 196 convening authority as accuser or prosecutor (see Art. 72) 780 418 convening authority, courts-martial in time / 41 21 of war \ 780 418 Article 74, judge-advocate, by whom appointed (see Judge-advocate) 781 418 convening authority, of court-martial to ap- f 148 76 point judge-advocate \ 781 418 554 INDEX PAR. PAGE Articles of War (continued) : Article 75, number of officers to constitute general! -.to fi q court-martial (see Courts-martial) j 7 ^ 9 410 quorum 46 24 Article 76, commanding officer to report lack of offi- cers for court-martial 783 418 court-martial convened at nearest post, etc., when 783 418 number of officers for general court-martial, how secured (see Courts-martial) 783 418 Article 77, competency of members (see Courts-mar- tial) 784 419 officers of regular army not to sit on courts for } ,-.. 9 trial of members "of other forces" (see } 7 o 4 d *q Courts-martial; Militia; Volunteers) J Article 78, command, marines serving with the regular troops 785 419 courts-martial, composition of, when marines are serving with the army (see Courts-mar- tial) marine corps, service with army 785 419 Article 79, officer not to be tried by inferior in rank ! , .^ _| if it can be avoided j ^ .( J /86 419 Article 80, repeal of, Appendix B 481 Article 81, commanding officer of regiment or corps] ~~ , 9 may appoint courts-martial (see Regimental \ 7ftft , 1Q Courts-martial) J regimental courts-martial, convening au- / 77 42 thority \ 788 419 regimental courts, commander of corps, en- gineer, ordnance, or signal, may convene .... 77 42 regimental courts-martial, composition of. ..I 7 .-.^ regimental courts-martial, jurisdiction < 7Q ~ , 9 ~ regimental courts-martial, number of members. 788 419 Article 82, garrison court-martial, constitution, num- ber of members (see Garrison Courts-martial) 789 419 garrison courts-martial, convening authority j yg Q 41Q garrison courts-martial, jurisdiction 76 41 garrison courts-martial, when and where con- vened 76 41 Article 83, amended, Appendix C 483 inferior courts, capital offenses not triable by . . 790 420 inferior courts, jurisdiction 790 420 I inferior courts, punishing power of j 7Q Q 49Q limits of punishment by inferior courts-martial. 790 420 summary court, expenses of witnesses, etc 790 421 Article 84, all members of courts-martial to take oath (see Courts-martial; Oath) 791 421 INDEX 555 PAR. PAGE Articles of War (continued) : meaning of words "court of justice " 791 422 oath of members of courts-martial, adminis- tered by judge-advocate 791 421 oath of members of court-martial, obligation j 791 421 of 1 791 422 oath to be administered to all members, in each case 791 422 Article 85, oath of judge-advocate, by whom adminis- tered (see Judge-advocate) 792 422 oath of judge-advocate, obligation of (see Art. 84) 792 422 Article 86, contempts of courts-martial (see Con- tempts) 793 423 disturbance of proceedings, or disorder before courts-martial 793 423 69 37 Article 87, behavior of members of courts-martial. . - ^ 1^ 794 423 Article 88, challenges of members of courts-martial / 166 86 (see Challenges) \ 795 423 challenge, statutory right, essential to validity of proceedings 795 423 Article 89, arraignment of prisoner, standing mute, or answering, foreign to purpose 796 423 standing mute from cause other than obstinacy or design 209 105 Article 90, judge-advocate appointed by convening authority (see Art. 74; Judge-advocate) 797 424 judge-advocate as counsel for accused j igZ |*. judge-advocate, duties of (see Judge-advocate). 148 76- judge-advocate to prosecute cases in name of United States 797 423; Article 91 (see Depositions) 251 122: ( 253 123: deposition, how prepared \ 254 123: I 257 124 deposition not used in capital cases 798 424 deposition, when taken 798 424 f 238 119 Article 92, oath of witnesses (see Oath) \ 239 119 [ 799 425 oath, by whom administered 799 425 oath, not necessary second time in same case . . 799 425 Article 93, continuance, grounds for 800 426 continuance of courts-martial cases (see / 176 91 Courts-martial) \ 800 425 continuance, court decides as to what const i- stutes "reasonable cause " for 800 425 Article 94, repealed, Appendix C 482 Article 95, order of voting by courts-martial 370 173 Article 96, death sentence, vote required for 312 149 556 INDEX Articles of War (continued) : Article 97, sentence to penitentiary 804 426 character ot offenses punishable under 804 426 penitentiary, sentence to, authorized when! |J? (see Punishment; Sentence) ] l_ e,04 4.Jo penitentiary, sentence, not authorized for purely military offenses 804 427 f 368 171 Article 98, forbidden punishments \ 369 171 ( 805 427 branding, marking, or tattooing (see Punish-/ 368 171 ments) \ 805 427 Article 99, discharge or dismissal of officer 806 427 discharge or dismissal of officer by sentence of court-martial only, in time of peace 806 427 dismissal of officer by executive order in time J 66 34 of war \ 335 160 dismissal of officer by executive order, right to demand trial 66 34 dismissal of officer, when operative 806 428 Article 100, dismissal of officer for cowardice or fraud, sentence in case of 807 428 dismissal for "cowardice or fraud," what in- cluded 807 428 publication of sentence 807 428 f 337 161 Article 101 , suspension of officer from rank and com- ! 338 161 mand, etc. (see Officers; Punishments) | 339 162 [ 808 428 f QQV 1 A1 suspension from rank or command, effect of. < ooq 1^9 suspension from rank, loss of files 341 162 f 337 161 suspension of pay and emoluments \ 340 162 [ 808 428 Article 102, applies to inferior as well as general courts-martial '. 809 429 no person to be held a second time for the f 194 99 same offense \ 809 429 previous trial, by civil court 195 100 previous trial, offense charged 809 429 f 194 99 "tried," meaning of word { 196 101 [ 809 429 Article 103, statute of limitations (see Statute off 186 96 Limitations; Pleas) \ 810 429 f 186 96 statute of limitations, desertion(see Desertion) ^ 187 97 I 193 99 statute of limitations, duty to prosecute within reasonable time 810 430 statute of limitations, fleeing from justice. what constitutes. . . 189 98 INDEX 557 PAR. PAGE Articles of War (continued) : statute of limitations, liability to trial after expiration of service 810 430 statute of limitations, matter of defense to be pleaded . . 187 97 statute of limitations, not applicable to inferior courts 191 99 statute ot limitations, offense concealed no im- pediment to trial 810 430 statute of limitations, plea of (see Pleas) 190 98 Article 104, approval of sentence of court-martial, by / 428 195 whom made (see Reviewing Authority) \ 430 196 approval of sentence of court-martial neces- ] 428 195 sary before effective \ 811 430 approval of sentence only necessary 432 197 reviewing authority, action taken by | ^4 jgg ( 437 199 Article 105, death, sentence of, by whom confirmed J 449 201 812 430 death , sentence confirmed by President before ] ,07 i QQ execution, except certain crimes in time of \ ^^ 431 war I 437 199 death sentence, execution of s ^^ 431 death sentence, guerrilla, in time of war 812 431 death sentence in time of war, confirmation] ,37 -.QQ and execution of (see Deserter: Spies; Mur- \ 010 A ^i der; Mutiny) J 812 death sentence not given deserters except in time of war (see Desertion; Art. 47) 754 375 Article 106, dismissal of officers (see Dismissal; Offi- cers) . dismissal of officer in time of peace .~. ^-i" court of inq i^y, record of, action on ......... 476 218 INDEX 559 PAR. PAGE Articles of War (continued) : Article 121, court of inquiry (see Court of Inquiry). court of inquiry, proceedings, when admissible as evidence (see Evidence) 828 437 Article 122, command, succession to, when different corps unite 829 437 "corps of the army," meaning of term 829 438 command, succession to 829 438 when operative 829 438 Article 123, volunteers, commissions of officers of (see Volunteers) 830 438 ( 51 26 volunteers, court for trial of, how composed. . . \ 134 70 I 830 439 volunteers governed by same rules as regular / 830 438 army \ 830 439 volunteers, to whom term applies 830 439 Article 124, militia, called into service, how (see Militia) , 831 441 militia, conscription 831 443 f 51 27 militia, courts for trial of -I 134 70 [ 831 442 militia, emergency for call determined by the President 831 442 militia, organization < g^l ^ militia, pay and allowances 831 442 militia, term of service 831 441 militia, when subject to military law 831 442 rank and grade of militia officers < ^01 Article 125, death of officer, administration upon effects (see Officer) 832 444 death of officer, board of officers to inventory public property 832 444 death of officer, disposition of effects 832 444 death of officer, disposition of remains 832 445 death of officer, duty of major or second officer in command 832 444 death of officer, estate, disposition of 832 444 death of officer, inventory of property 832 444 death of officer, procedure 832 444 death of officer, property to be acted upon. . . . 832 445 Article 126, death of soldier, administration on effects (see Enlisted Men) 833 446 death of soldier, duty of commanding officer. 833 445 death of soldier, disposition of effects 833 446 death of soldier, disposition of remains 833 445 death of soldier, inventory of effects 833 445 death of soldier, procedure 833 445 death of soldier, property to be accounted for. . 833 447 Article 127, accountability for effects of deceased officer or soldier (see Officer) 834 447 560 INDEX PAR. PAGE Articlss of War (continued) : officer responsible not to leave post before ac- counting 834 447 Article 128, articles of war to be read and published to troops. 835 447 failure to make publication, and consequent ignorance, as a defence 835 448 purpose of article 835 448 Assault and Battery : deiiniiion (see Art. 58) 765 393 intent 765 394 with intent to commit rape, ''intent" to be proved (see Art. 58) 765 395 with intent to commit rape (see Art. 58) 765 395 with intent to kill, "intent " to be proved (see Art. 58) 765 394 Assisting the Enemy (see Arts. 45 and 46; Enemy) / ^ |/4 Attachment for Witness (see Writ of Attachment): form for \varrant , Appendix E 525 power of judge-advocate to issue 221 110 f 225 112 release from, on habeas corpus (see Habeas Corpus) . { 226 112 I 227 113 service of writ, execution, force used in 222 111 writ of, for witness, when and how executed < 292 ^ Attorney and Client: confidential communications (see Confidential Com- munications; Evidence; Witnesses) 632 287 confidential communications, include clerk, etc 632 287 Attorney=general (see Opinions): force of opinions and when binding 24 12 Authentication of Record (see Record): board for examination for promotion 519 235 court of inquiry 474 218 court-martial 409 187* retiring board 519 235 Autrefois Acquit (see Art. 102; Pleas) 194 99 Averments (see Charges and Specifications) 117 62 Bail: allowed in civil arrest, not in military 90 50 by whom admitted 840 454 excessive, not to be required 840 455 offenses against United States, admitted in what cases. 840 454 offenses against United States, by whom fixed 840 454 penalty for breach of military arrest 102 55 when admitted in criminal cases. 840 454 Ball and Chain (see Punishments) | f^ ]^ INDEX 561 PAR. PAGE Battery : definition of 765 393 force used, intent 765 394 Behavior: at divine service (see Art. 52) 759 382 in quarters and on the march (see Art. 55) 762 383 of members of courts-martial (see Art. 87) 794 423 Bias (see Challenges) 171 89 Blank Receipts (see Art. 60) 767 403 Boards : character, purposes for which convened, etc 525 237 for special purposes 526 ^37 oath of members 528 238 oath of witnesses, by whom administered, etc 529 238 organization, purpose, procedure of 527 238 record of, made by whom 530 238 reports not effective till approved 530 238 examination for promotion, approval of report 524 236 examination for promotion, challenges of members. .. 518 234 examination of officers for promotion, composition / 515 233 of, etc \ 516 233 examination for promotion, evidence before 521 235 examination for promotion, findings 524 236 examination for promotion, organization and pro- / 517 234 cedure. \ 519 235 examination of officers for promotion, quorum 518 235 examination for promotion, record, to be approved.. . 524 236 examination for promotion, witness, how secured. . . . 521 235 for inventory of public property in charge of deceased officer 832 444 in case of desertion (see Surveying Officer) 546 245. retiring (see Retiring Boards) 486 223 of survey (see Surveying Officer). to determine character of enlisted men 526 237 under 54th Article of War, composition . 535 240 under 54th Article of War, duty of commanding officer 531 239 number of members, etc 535 240 procedure 533 239 purpose 531 239 reparation for injury to property, etc 532 239 stoppage, purpose 534 240 Branding: prohibited (Art. 98) (see Punishments) 805 427 Breach of Arrest (see Art. 65) 103 55 penalty (Art. 65) 772 414 unintentional, constructive 103 55 Brief: filed with return to writ of habeas corpus issued, in case o: minor, by U. S. Court, Appendix E 537 562 INDEX Brigade (Art. 73): what constitutes 42 22 Burden of Proof (see Evidence) 604 273 alibi - -. : ::'" 289 13 ? arms, clothing, etc., found in possession of civilian. . . 724 341 challenge ot members of courts-martial 173 99 how determined, in criminal cases 604 274 identification of documents introduced in evidence. . . 567 257 ignorance or mistake of fact - 284 134 ignorance of published orders 728 348 in criminal cases, on state 605 274 insanity as a defense 274 132 plea in abatement, prosecution entitled to reply to, etc 184 96 Burglary : breaking, necessary to commission (see Art. 58) 765 387 building entered, when 765 388 constructive, when 765 387 definition of, at common law 765 387 execution of, when complete 765 387 form of charge for, Appendix E 501 intent to commit felony 765 387 time of commission. . , . { J^f ool I 765 388 Cadets: dismissal for hazing 336 161 part of army 58 31 status of, in army 59 31 subject to the rules and articles of war 706 324 trial and sentence by court-martial | ,? 2 02 trial by summary court, not subject to 59 31 Camp: absence from, by verbal permission, limit, Art. 34 ... 741 362 alarms in, Art. 41 748 371 lying out of, Art. 31 738 358 retainers to, who included in term, Art. 62 770 413 Camp Followers: who included in term, Art. 63 770 413 Capacity : criminal (see Defenses) 265 128 Capital Crimes: not triable by inferior courts, Art. 62 769 411 triable by courts-martial in time of war, Art. 58 (see Arts. 58 and 62) 765 385 Capital Sentences: confirmation of (see Sentences) | ^ 12 439 execution of, Art. 105 812 430 suspension of, Art. Ill 818 434 INDEX 563 PAR. PAGE Captured Property (see Property): belongs to United States ......................... 716 334 buying and selling of, prohibited .................. 838 450 disposition of ................................... 838 450 duty of officer in possession ....................... 838 450 retaining, trading, or dealing in, prohibited ......... 838 450 Cashiered : synonymous with dismissal ....................... 715 333 Certificates : false, Art. 60 (see False Certificates) ............... 767 398 ot absence, monthly report, Art. 7 ................. 714 331 of absence at muster, Art. 12 ..................... 719 335 Challenges : board of examination, members of (see Boards). . .'. . 518 234 i 1 ftfi court-martial members, Art. 88 court-martial members, accused entitled to, Art. 88 < ^g^ ^3 i 1 A7 ft7 court-martial members, action of court on ........ < O^Q 101 court-martial members, burden of proof to sustain. . . 173 90 court-martial members, classification of ............ 168 87 court-martial members, determined in closed court, j 167 87 challenged member withdrawing ............... } 389 181 court-martial members, how made, and determined J 166 86 by court ......... ; .......................... \ 795 423 court-martial members, grounds of ................. 171 88 court-martial members, ground for, accuser or prose- cutor ........................................ 169 88 court-martial members, ground for, interest in result of trial ....................................... 169 88 court-martial members, ground for, intimate personal relations ...................................... 171 89 court-martial members, ground for, material wit- ness ......................................... 171 89 court-martial members, ground for, member interior in rank to accused ............................. 140 72 court-martial members, ground for, member of court of inquiry or of regimental court for doing justice. . 169 87 court-martial members, ground of, member of court- martial on former trial ot case ................... 169 88 court-martial members, ground of, participation in former trial involving same question ............. 171 89 court-martial members, ground of, personal prejudice or hostility ................................... 171 89 court-martial members, ground of, previous investiga- tion and report on case ......................... 169 88 court-martial members, ground ot, previous opinion formed or expressed ........................... 171 88 court-martial members, judge-advocate entitled to.. . 172 90 judge-advocate not subject to ..................... 149 76 member challenged may reply ..................... 167 86 member withdraws if it is sustained ................ 389 181 564 INDEX PAR. PAGE Challenges (continued) : one at a time and for cause stated 388 180 opportunity for, must be given 387 180 opportunity given must appear on record 795 423 peremptory, not allowed 166 86 principal, definition of 169 87 principal, if sustained, member excused 170 88 principal, what constitutes, cause for 169 87 regimental courts lor doing justice, members 87 47 retiring board, members subject to 503 229 right exercised only by accused and judge-advocate. . 172 80 right to 166 86 statutory right, essential to validity of proceedings . . . 795 423 tie vote on 173 SO to be tor cause stated, Art. 88 I JOG if A I coo 1 oU to the favor 168 87 to the favor, includes what 171 88 to the poll, classes of 168 87 voir dire, oath (see Voir Dire). . . . -f JI ,f J [_ ooo J cU Challenge to Duels, Art. 26 (see Duels) 733 352 Character : admissibility of evidence as to (see Evidence) 591 266 boards to determine, of enlisted men 526 237 evidence as to, when introduced 591 266 evidence of, by prosecution, admissible only when . . . 592 267 evidence of, purpose of introduction of 592 267 evidence of, to impeach witness (see Witnesses; Im- peachment) 639 290 Charges and Specifications : charges, accumulative charges, not favored 125 65 accused entitled to copy of 129 67 action on, by commanding officer before for- warding 124 65 action on, by reviewing authority, Art. 104 (see Reviewing Authority) 428 195 additional charge for trial with original charges 127 66 allegations as to offense, with name, rank, etc., of accused, stated in 117 62 alteration of, when and by whom made 126 65 alternative form of, not permissible 119 63 any number adjudicated in one proceeding. . . 120 63 court-martial cannot direct material alteration in 126 65 f 34 18 convening authority (see Arts. 72 and 73) . . { 41 21 I 44 23 designate offense committed, must be sus- tained by the specification. 117 62 disrespect to commanding officer, acts or words to be stated in specification. . 727 344 enlisted men to be furnished with copy of 129 66 INDEX 565 PAR. PAGE Charges and Specifications (continued): error in name, lank, etc., corrected before arraignment 118 63 how drawn, and must state what 117 63 intent must be set lorth when a necessary ele- ment of a crime (see intent) 121 64 intent, to be charged in certain offenses, Art. 58. 765 395 investigation of, beiore trial 124 65 joint, when drawn 729 350 judge-advocate may correct minor errors only. 126 66 must be drawn with precision to designate the offense, etc 117 62 name, rank, and organization of accused to be stated in 117 62 need not be drawn in technical terms of a civil indictment 117 62 papers that should accompany, general courts . 130 67 papers that should accompany, for inferior courts 131 68 previous convictions to accompany (see Pre- vious Convictions) 130 67 service on accused < -,yg 416 specification to state specific facts constituting the offense 117 62 statement of service to accompany 130 67 surgeon's report to accompany, in case of de- sertion 130 67 to whom sent 124 65 who may initiate charges 123 64 who may prefer charges 122 64 withdrawal (see Nolle Prosequi) | 2 n witnesses, list of < ^Q ^ Charges : false charges 122 64 false muster, "knowingly," essential to charge 712 331 form for, under Article 17, Appendix E 494 form for, under Article 20, Appendix E 495 form for, under Article 21, Appendix E 495 form for, under Article 24, Appendix E 495 form for, under Article 32, Appendix E form for, under Article 33, Appendix E form for, under Article 38, Appendix E 496 form for, under Article 39, Appendix E 497 form for, under Article 40, Appendix E 497 form for, under Article 47, Appendix E 497 form for, under Article 51, Appendix E 498 form for, under Article 58, Appendix E 498 form for, under Article 60, Appendix E 498 form for, under Article 61 , Appendix E 499 form for, under Article 62, Appendix E 500 fraudulent enlistment, what essential to 710 328 INDEX Charges (continued) : must be laid under an article of war 117 63 not to be drawn in alternative form 724 338 officer in arrest entitled to copy of 778 416 under a specific article of war, also charged under the 61st, when 117 63 Chief of Engineers : may convene regimental court, Art. 82 77 42 Chief of Ordnance : may convene regimental court, Art. 82 77 42 Chief Signal Officer : may convene regimental court, Art. 82 77 42 Citizens : amenability to trial by court-martial, when (see Arts. 46, 63; Martial Law, Military Government) 770 413 injuries to, Art. 54 761 382 offenses against, when triable by court-martial (Art. 58) 765 385 Civil Actions: liability of officer and soldier to 699 320 Civil Authority: over military persons (see Relations of Military Per- sons to Civil Authority) 695 319 Civil Courts : review of proceedings of courts-martial by writ of prohibition by 458 210 jurisdiction over enlisted men in certain cases 31 16 may issue writ of habeas corpus and set aside proceed- ings of court-martial, when (see Habeas Corpus). . 63 32 Civil Employees: amenability to trial by court-martial, when 770 413 Civil Officers: authorized to arrest deserters, Appendix B 481 Civil Statutes : local laws of a foreign country not laws of State, etc., under 58th Article of War 765 396 Civilians: may be tried by military commission when martial law prevails 682 312 may initiate charges 123 64 Claims : fraudulent, under 60th Article of War ( ? ?oo !_ /o< oyy Classification : military jurisdiction 2 1 military law 7 5 military tribunals 26 13 INDEX 567 PAR. PAGE Clemency : application for, by prisoner in penitentiary 455 209 in time of war, Art. 105 812 430 recommendation to, by court-martial members 378 175 Clerk: for court-martial, detailed by commanding officer. . . . 164 84 for court-martial, enlisted man as, compensation 164 84 Client (see Attorney and Client) 632 287 Closed doors: record of, to be made (see Courts-martial) 152 78 Clothing: accountability for (see Arts. 8 and 10) / 7JJ ^ illegal possession of, Art. 17 724 337 illegal purchaser, of soldier may be prosecuted 724 340 issued to soldier, loss of, by soldier, Art. 17 724 337 issued to soldier may be seized when, method of pro- cedure. . . 724 341 issued to soldier, possession by civilian presumptive evidence of sale 724 341 issued to soldier, purpose of and condition of issue . . . 724 339 issued to soldier, sale of prohibited, Art. 17 724 337 issued to soldier, seizure of when in hands of illegal purchaser (see Warrant; Search Warrant) 724 339 issued to soldier, title to w . 724 338 right of soldier to dispose of, after discharge 724 339 Command : succession to, when different corps of the army unite. . 829 437 of army, etc., includes whom '. 37 20 when different "corps " unite, meaning of the word "corps," Art. 122 829 438 Commander of Guard : not to release or suffer prisoners to escape, Art, 69. ... 776 415 not to suffer parties to go forth to fight a duel. Art. 27 (see Duels) 734 355 to receive prisoners, Art. 67 774 414 to report names of prisoners, Art. 68 775 415 Commanding General : Army of the United States, confirms sentences of dis- missal, when 814 432 authority to convene general courts-martial (see / 779 417 Arts. 72, 73; General Courts-martial) \ 780 418 in field may approve death sentence, when 812 431 Commanding Officer: action on charges 1 24 65 authority for arrests by, Art. 65 (see Arrests) | ^ ^ drunkenness on duty 745 365 duty to aid in arrest of offenders against laws of the / 107 57 land, when \ 107 58 568 INDEX PAR. PAGE Commanding Officer (continued) : duty to deliver officer or soldier to civil authorities, when ........................................ 766 396 duty under Article 54 ........ . . / 5^1 239 (_ ooo 240 meaning of word in Article 65 ..................... 93 52 offering violence to, or disrepect of orders of, Art. 21. . . 728 344 Commissioned Officer (see Officers). Common Law: rules of, governing introduction of evidence (see Evi- dence) ........................................ 549 247 rules of, with regard to escaping felons, etc ......... 746 369 Commutation of Sentence : by whom and when exercised (see Pardon; Mitiga- tion) ......................................... 454 208 change or substitution of penalty .................. 453 208 reviewing authority no power to commute Competency of Witness : definition (see Evidence) ....................... j j?^ 277 grounds of incompetency ......................... 614 278 crimen falsi ............................... 619 281 husband and wife .......................... 629 285 infamy ................................... 616 279 interest .................................. 625 283 privileged communications .................. 628 285 want of mental capacity .................... 620 281 want of religious belief ..................... 615 278 in deposition (see Witnesses) .......... ............ 798 425 presumption as to ............................... 612 277 voir dire, oath ..................... .............. 237 118 Composition of Court=martial : for trial of marine corps serving with the army (Art. 78) .......................................... 50 26 for trial of "militia (Art. 77) .................. | 8 ^} J for trial of regular forces ....................... . . 50 26 51 26 for trial of volunteers (Art. 77) number of members, garrison court (Art. 82). 830 438 74 40 789 419 general court (Art. 75) 46 24 f 77 42 regimental court (Art. 81) < ygg 41 g summary court 80 43 f 4Q 25 rank of members | 14Q 73 Compulsion : force or constraint necessary 285 135 of commander, by troops under his command (Art. / 285 135 43) I 750 373 of married women 288 136 INDEX 569 PAR. PAGE Concurrent Jurisdiction : civil and military courts (see Jurisdiction) .......... 31 16 Conduct to the Prejudice of Good Order and Military Discipline: character of offenses (see Art. 62) ...... . ........... 769 411 Conduct Unbecoming an Officer and a Gentleman (see Art. 61): penalty on conviction ............................ 768 409 what constitutes (Art. 61) ........................ 768 409 Confessions : { 584 262 admission as evidence, must be voluntary ........ \ 585 263 I 586 263 corroboration of testimony of accomplices .......... 627 284 test of admissibility in evidence ................... 586 263 Confidential Communications : attorney and client .............................. 632 287 clergymen and physicians ......................... 633 287 husband and wife (see Evidence) .................. 629 285 State secrets .................................... 631 287 Confinement : after expiration of term of enlistment (see Punish- ments) ....................................... 320 153 319 152 at hard labor ................................. 343 163 345 163 313 149 at military post ............................... \ 317 151 I 804 426 in military prison ................................ 317 151 f 313 149 in penitentiary (see Art. 97; Sentence; Punishment) j ^ J^ ( 804 426 of enlisted men (see Art. 66; Enlisted Men) ......... 104 55 of enlisted men, duty of officer of the day .......... 105 56 duty of officer of guard ..................... 105 56 limit under Art. 70 ...................... [ ^ ^ to be by order of officer. ................... 104 56 to be reported within twenty-four hours ...... 105 56 period of, limited (Art. 70) ....................... 106 56 sentence to, takes effect when ..................... 318 152 solitary, limit of ................................. 346 164 solitary, limit of, Appendix D (see Punishment) ..... 492 f 428 195 436 199 Confirmation of Sentence (see Arts. 104, 105, 106, 107, 108, 109; Reviewing Authority) ..................... \ ^ ^00 440 201 441 201 Congress : contemptuous words against (Art. 19) ............. 726 342 f \ 570 INDEX Conscription (see Art. 124; Militia) 831 P 443 right may be exercised by United States 831 443 Conspiracy : evidence admissible in 581 262 to commit fraud (Art. 60) 767 398 to commit mutiny (see Mutiny) 729 350 Constitution of Courts=martial (see Composition of Courts- martial): garrison courts-martial, by whom constituted (Art. f 74 40 82) \ 789 419 general courts-martial, by whom constituted in time [ JJ of peace or war (Art. 72) | * *> general courts-martial, by whom constituted in/ 41 21 time of war (Art. 73) L 780 418 general courts-martial, when commander is accuser or prosecutor (see Accuser or Prosecutor). regimental courts-martial, by whom constituted (Art. 81) 77 42 summary courts 80 43 Constructive Contempt (see Contempt) 71 38 Constructive Pardon : when (see Pardon) 203 103 Contempt of Court : act providing for punishment of civilian for refusal to attend or to testify 72 38 classified 68 36 court judge of contempts before it 70 38 court of inquiry no pow r er to punish 469 216 direct, method of procedure 70 37 indirect, or constructive, definition of 71 38 members of courts-martial j ^g^ JL ( 70 37 procedure in \ 72 38 I 73 39 {f*& o pr yqo 420 refusal to obey subpoena 72 38 who may be punished for 68 36 ( AC Qfi witness refusing to testify, etc \ ^ Contempt or Disrespect: contemptuous or disrespectful words towards Presi- dent, Vice-President, and other authority (Art. 19). . 726 342 Continuance : application for (Art. 93) | ^Q 4 ^ f 183 95 ground for asking and granting, "reasonable cause " { 800 425 I 800 426 INDEX 571 PAR.' PAGE Contract of Enlistment: effect of, as to status ............................. 710 326 effect of, as to status, Appendix E (see Enlistment). . 538 executive may annul ............................. 711 330 void in what cases ............................... 710 326 Contracts : government, officers liable on when not warranted by law .......................................... 699 320 government, officers not liable, when ............... 699 320 United States cannot be sued except with its consent 699 320 Contributions : by whom levied in time of war (see Laws ot War). . . 657 299 Convening Authority : C *%f\ 1 Q accuser or prosecutor (see Arts. 72, 73; Accuser or j 99 Prosecutor) ............. ...... 1 779 417 cannot delegate power ........................... 39 20 commander of division ........................... 41 21 commander ot separate brigade .................... 41 21 corps commander ................................ 38 20 f 34 18 court-martial (see Arts. 72 and 73; Constitution of Courts-martial) .............................. ( 780 418 general courts-martial (see Constitution of Courts- martial). inferior courts (see Constitution of Courts-martial). in time of peace (see Art. 72) ..................... 34 18 in time of war (see Art. 73) ..................... < ^^ ^g judge-advocate, appointment by (see Art. 74) ..... | ^ 4 J| of court of inquiry (see Art. 115) .................. 460 212 of court of inquiry, may return record for revision. . . 476 219 President as .................................... 36 19 superintendent of Military Academy ............... 44 23 Conventions : to ameliorate condition of sick and wounded in war- fare (see Laws of War) ......................... 656 298 Convictions : previous (see Previous Convictions). Convicts : {SSTJSJ Copies of Documents (see Documents): as evidence (see Evidence). exemplified; office; or sworn copies (see Evidence). . 561 254 foreign laws or judgments, how authenticated ....... 560 253 public documents, how authenticated ............ | ^J 254 war department records, how authenticated ......... 558 253 572 INDEX PAR. PAGE Corps : meaning of words in Art. 122 829 438 Corps Commander : may convene court-martial under Art. 107, when. . . | [ oo Z(J Corps of Engineers: regimental courts, Art. 81 , 77 42 Corpus Delicti : must be shown when 597 270 to be proved in charge of murder, etc 765 393 Correspondence : with the enemy, Art. 46 753 375 Counsel : civilian may be 155 80 f 157 81 I 158 82 duty of, to accused { 159 82 | 160 83 I 161 83 judge-advocate as, Art. 90 (see Judge-Advocate) 157 81 restriction on 161 83 right to 154 80 Counterfeiting: defined, distinguished from forgery, how proved 767 402 Countersign : making known, Art. 44 751 373 what constitutes, to whom only given 751 373 Courts : decisions of 21 11 provisional, provost (see Military Government) 664 301 Courts=martial : action not final until approved 428 195 adjournment, stated and authenticated in record . . < .V, ..07 appointed by President, when 779 417 appointed by whom (see Constitution of Courts-mar- tial). as "courts of honor " 28 14 assembling of court and procedure thereupon 153 79 authority for 26 13 cannot direct material change in charges or specifica- tions 126 65 challenge of members (see Challenges). changes in membership of 386 180 classified 26 13 closed during deliberations 400 184 closed session 152 78 comments by, in proceedings 300 143 competency of members (see Art. 77) 784 419 composition (see Composition of Courts-martial) 46 24 INDEX 573 PAR. PAGE Courts-martial (continued) : composition wiien marines are serving with regulai J 50 26 army .................. : . .. .......... ....... I 785 419 condition necessary to show jurisdiction ot ......... . 67 35 conduct of members 144 ^ constitution (see Constitution of Courts-martial). continuance, granted by ......................... 176 91 convening authority (see Convening Authority; Con- stitution of Courts-martial). courts of honor .................................. 292 139 decide questions of law as well as of fact ........... 30 15 determines relevancy and validity of challenge of members ..................................... 795 423 f 47 24 eligibility as members .......................... { 50 26 I 133 70 eligibility as members of, officers of regulars, volun- teers, and militia .............................. 134 70 eligibility as members, of retired officers ........... 135 70 evidence before (see Evidence) .................... 547 246 excess of jurisdiction, writ of habeas corpus ......... 457 209 executive agencies ............................... 547 246 finding, acquittal, wording of ..................... 299 143 finding how made and recorded. . ................. 405 185 finding, evidence to sustain ............ * ........... 294 140 finding, of lesser kindred offense ................. < ^qj 149 finding, on plea of guilty with exceptions ........... 296 141 finding, on single specification supports charge ...... 295 140 finding, on specification, to support charge .......... 295 140 finding, to conform to tacts established ............. 293 140 finding, under a specific article, charge under general article ....................................... . 298 142 finding,, when and how made ...................... 292 139 form of special order promulgating sentence, Appen- dix E ........................................ 534' forms for sentences of, Appendix E ................ 522 functions of, to get whole truth and decide according to evidence ................................... 29 15 garrison ........................................ 26 13 garrison, limits of punishment ..................... 790 420 garrison, who may appoint ....................... 789 419 general ......................................... 26 13 general, officers to be tried only by ................ 140 72 general, organization, number of members .......... 132 69 general, organization, seating of members, judge- advocate ..................................... 142 73 general, president of the court, duties ............ | independence of the court ........................ 175 91 inferior courts, jurisdiction ....................... 790 420 judge-advocate, performance of other duties ........ 146 75 judgments, reviewed by civil courts, when and how .. 27 14 574 INDEX PAR. PAGE Courts=martial (continued) : judgments, not subject to appeal to civil courts 27 13 judgments, when having jurisdiction, are conclusive. . 30 15 judgments, when illegal, brought beiore civil courts by habeas corpus 63 32 jurisdiction in case of unauthorized trade with State in rebellion, embezzlement, false returns, fraud, etc. . : 837 450 jurisdiction over criminal offenses only. ' 28 14 jurisdiction over offenses in time of war 765 385 jurisdiction over persons in service retaining or trad- ing in captured property 838 450 jurisdiction over spies 836 448 lawful tribunals with plenary jurisdiction over mili- tary offenses 27 14 liability of members | j~ ~^ marine corps, detached for service with the army. . . . 785 419 may adjourn to quarters of sick witness . 250 122 may be reviewed as to its acts, in civil courts, on ques- tion of jurisdiction 456 209 may examine witnesses 242 120 may grant continuance or postponement of trial (see / 176 91 Continuance) \ 800 425 may receive evidence as to good character 592 267 may reconsider sentence, when 324 154 member, thinking himself disqualified to report fact to convening authority 172 90 member to withdraw if challenge sustained 389 181 members are to be sworn in each case 791 422 members, competency to sit not affected by promo- tion 139 72 members, how seated 142 73 members may be proceeded against for disorderly con- duct in court 69 37 members may testify as witnesses 233 116 I QCO 1 '7Q members must be duly sworn in each case < -** ^o members, number of (see Composition of Courts-mar- tial) 136 71 members, number of, by whom determined (see Com- position of Courts-martial) 136 71 members of, on equality in deliberations, etc 293 139 members, performance of other duties 1 46 74 members, subject to challenge 166 86 members, subject to damages for illegal punishment awarded 30 15 ( ^70 1 7*3 method of voting by members (see Voting) < g^ 426 necessity for convening, who decides 39 21 new members, procedure when detailed 138 71 new members of, to be sworn, subject to challenge ... 386 180 not "courts of record " 27 not part of judicial system 27 13 INDEX 575 PAR. PAGE Courts=martial (continued): number of officers 10 constitute (see Composition of Courts-martial) . 782 418 oath of members 791 421 objection to questions, decided by court 401 184 officer of regular army may be member for trial of marines, when 785 419 officers of regular army not to be members for trial of other forces, etc 784 419 officers not to be tried by juniors in rank if it can be avoided 786 419 officers, who may appoint, in peace or war (see Con- stitution of Courts-martial) 779 417 officers, who may appoint in time of war 780 418 pardon or mitigation of sentence of 819 434 power to punish civilians for contempt 68 36 president of, administers oath to judge-advocate when a witness 233 117 proceedings (see Record) 380 176 punishment of civilian witness for contempt of 72 38 quorum, change in membership 145 74 quorum, on trial and on revision 136 71 rank of members 135 70 reassembling after adjournment 152 79 recommendation to clemency 378 175 . , r ,. / 416 190 reconvening court for revision of proceedings < 41 g jgj record of (see Record). record, application for copies of general courts (see Art. 114) 423 193 record, authentication of 152 79 record of, to whom forwarded - < 82 Q regimental 26 13 regimental, for doing justice, not a trial court, Appen- dix A (note) 464 regimental, limits of punishment 790 420 regimental, number of officers 788 419 regimental, who may appoint 788 419 review of proceedings by civil courts only had on questions of jurisdiction 456 209 revision proceedings 415 189 revision proceedings, case cannot be reopened by call- ing witnesses. . . . . , 418 192 revision proceedings, not a "second trial " 809 429 revision proceedings, quorum 416 190 sentence (see Reviewing Authority; Pardon; Mitiga- tion; Sentence). sentence cannot be executed until approved 811 430 sentence, discharged soldier in confinement for offenses committed. 366 170 sentence, within legal limits, wholly in discretion of court 323 153 sessions of (see Record) 153 79 576 INDEX PAR. PAGE Courts=martial (continued): summary court, a court-martial within meaning of appropriation for expenses, etc.; expenses of wit- nesses ........................................ 790 421 summary court, limits of punishments .............. 790 420 trial by, cannot be demanded except under Art. 30 and Sect. 1230 R.S ............................ 39 21 uniform of members, judge-advocate, witnesses, etc... 147 75 who may convene, in time of war ................. 41 21 without jurisdiction, acts illegal and void ........... 30 15 witness before (see Witnesses) ..................... 212 107 Courts of Honor : court-martial as ................................. 28 14 Courts of Inquiry (see Arts. 115, 116, 117, 118, 119, 120): accused may testify at his own request ............. 470 216 accuser and accused may be present ............... 464 215 action on proceedings ............................ 476 218 application for .................................. 460 212 assimilated to courts-martial, but not a judicial tri- bunal ........................................ 459 212 authority for, constitution of, procedure, etc ......... 460 212 by whom and when ordered ....................... 822 435 challenges of members, how made ................. 466 215 closed or open, in discretion of court . . ............. 472 217 composition, Art. 116 ............................ 461 213 conclusions, not concurred in by all members, separate reports ....................................... 475 218 constitution, when and by whom convened ......... 462 214 copy of proceedings, how obtained ................. 478 219 court, as well as recorder, may summon witnesses .... 469 216 duties of recorder ................................ 473 217 examination of witnesses, evidence before ........... 470 216 f 472 217 examination of witnesses, similar to courts-martial . . form of order for ................................ 463 214 functions of, limitation to persons in military service and acts wholly therein ....................... . 468 215 may determine as to admissibility of evidence ....... 471 216 meaning of "commanding officer " ............ . . . 462 214 meaning of word "demand," Art. 115 .............. 462 214 member absent, action in case of .................. 464 214 members sworn ................................. 461 213 no power to issue process to compel attendance of civilian witnesses .............................. 469 216 no power to punish for contempt .................. 469 216 not affected by statute of limitations ............... 459 212 not governed strictly by rules of evidence ........... 471 216 not to give opinion unless ordered ................. 826 436 number of members and recorder .................. 823 436 oath ........................................... 824 436 organization .................................... 464 214 person investigated, presence of ................ .... 464 214 INDEX 577 PAR. PAGE Courts of Inquiry (continued). power to summon and examine witnesses 460 213 {% %& proceedings admitted as evidence, when 478 219 proceedings, how authenticated, to whom delivered. . 460 213 . purposes of opinion to what confined 826 436 quorum 466 21 5 rank of officers relative to persons under investigation 461 213 record, action on 476 218 consists of what, how made up 474 218 disposition of 422 193 as evidence, Art. 121 478 219 form of, etc., how authenticated, to whom de- livered 474 217 returned for revision 476 219 to state opinion when so ordered 474 218 recorder 469 216 report of. may be withheld or published by convening authority 477 219 reporter, authority and compensation for 465 215 reports and conclusions confidential, as in courts- martial 475 218 statute of limitations not applying to 191 99 when and by whom convened 460 212 witnesses 473 217 witnesses before | ^^ ^IQ Court of Justice: meaning of term 791 422 Cowardice : sentence of officer on conviction of publication 807 428 Credibility of Witnesses: definition of (see Impeachment; Witnesses) j g^j 277 determined by court 235 117 general reputation for truth and veracity 641 291 impeachment of 639 290 Crimen falsi: conviction of, excludes witness 616 280 definition of, what constitutes (see Evidence; In- famy) 619 281 offenses included in 619 281 pardon, effect of 617 280 Crimes : against United States, arrest for, by whom. . 839 451 against the United States, procedure. . 839 451 capital, not chargeable under 62d Article, as lesser offense 769 411 degrees of, in murder, etc 765 395 distinguished from neglects and disorders 769 411 elements necessary to constitute 265 128 meaning of word as used in Article 65 93 52 578 INDEX PAR. PAGE Crimes (continued): subject to trial by general courts-martial in time of war, etc., Art. 58 .............................. 60 31 Crimes under Articles of War : counterteiting ................................... 767 402 embezzlement ................................... 767 404 false swearing ................................... 767 401 forgery ......................................... 767 402 larceny ......................................... 767 404 misappropriation of funds ........................ 767 407 perjury ....................................... . . 767 401 receiving stolen goods, etc ........................ 767 407 subornation of perjury ........................... 767 401 Crimes under Article 58 : arson .......................................... 765 388 assault and battery with intent to commit rape ..... 765 395 assault and battery with intent to kill .............. 765 393 burglary ........................................ 765 387 homicide ....................................... 765 390 larceny ......................................... 765 385 manslaughter ................................... 765 390 mayhem ........................................ 765 389 murder ......................................... 765 392 rape ........................................... 765 394 robbery ...................... . ..... .... ........ 765 386 wounding by shooting or stabbing with intent to murder ....................................... 765 394 Criminal Capacity : incapacity (see Defenses) f OA P\ 1 Oft g^ ^99 Criminating Questions : accused not required to answer (see Evidence; Wit- j fi ^ ft ^ CJ ->; ..... [ 64~4 S)3 military witness must answer question court decides as not criminating ............................. 637 289 must be answered when immunity is afforded by law . . . 635 289 no person to be a witness against himself ........... 634 288 objection made only by witness ................... 636 289 waiver of objection to, by witness .......... : ...... 638 290 witness must object to, under oath ................ 636 289 Cross-examination : of accused ...................................... 264 126 f 241 119 of witnesses (see Witnesses) ..................... \ 644 293 I 646 293 Cross=interrogatories (see Depositions) .................. 254 123 Cumulative Evidence ............................... 554 250 Customs of Service (Art. 84) ....... .................. | ? *J 4 *J conditions of acceptance ........................ \ 2o 11 local usages, admissible when, purpose ............. 20 11 INDEX 579 PAR PAGB Customs of War (see Customs of Service). Damages : to private property (Art. 54), reparation for (see Arts. 54, 55, 56) 531 239 to private property (Art. 54), stoppages for (see Stop- pages) 533 239 to public property (see Surveying Officer) 537 241 Death : of enlisted men, procedure in case of (see Art. 126). . . 833 445 officer, procedure in case of (see Art. 125) .. . . : 832 444 sentence, approval of Art. 105 (see Punishment;] d , n 9m Sentences)........ { "0 ^1 sentence, execution of 328 157 sentence, mandatory, under Art. 57 330 157 sentence, prescribed, but not mandatory, when 331 158 sentence, requires two-third vote of members of court 803 426 sentence, suspension of 818 434 Debts : indifference to private, bringing scandal to service (see Art. 61) 768 410 Decisions : ot heads of executive departments 23 12 opinions (see Attorney-general; Judges-advocate- / 24 12 general) ; \ 25 12 Decisions of Courts : legal precedents 21 11 Declaration of Martial Law (see Martial Law). Declarations : against interest (see Confessions; Evidence) 583 262 Defense : f 262 125 accused as witness { 263 126 I 264 126 character evidence as to J 591 266 I 592 267 conduct of (see Defenses). meaning of the term 287 129 witnesses for, how introduced 260 125 how sworn 261 125 Defenses (see Pleas). alibi, how established 289 136 burden of proof to establish incapacity on accused. . 278 133 criminal capacity, presumption as to. < ^^ j .^ drunkenness as affecting ' intent" 275 132 drunkenness as a defense. . . 277 133 580 INDEX PAR. PAGE Defenses (continued) : elements necessary to constitute crime 265 128 incapacity through circumstances beyond control . . . 279 133 burden of proof in case of 284 134 {OQf\ 1 O A 281 134 ignorance or mistake of law 279 133 incapacity through constraint 285 135 compulsion 285 135 married women 288 136 obedience to orders { 287 136 incapacity through defect of understanding 269 130 defect of mind 270 130 f 275 132 drunkenness <{ 276 132 I 277 133 idiocy 270 130 infancy 269 130 insanity 271 130 burden of proof 274 132 classes of. 271 130 271 131 moral or emotional, not excusing 272 131 test of 273 131 intent, lack of, when shown 268 130 latitude allowed the accused 267 129 obedience to orders of superior j 287 135 provocation 283 134 statement 290 137 Degrading Questions (see Witnesses): witness not compelled to answer, Appendix C 482 Deliberations : court-martial in closed session 152 78 Department Commander (see Convening Authority; Re- viewing Authority). approves death sentence, when 812 431 Departmental Regulations : authority for, purpose of 14 8 Departure (see Variance). Deposition (Article 91): account of witness certified by judge-advocate 258 1 24 admission , all or no part to be admitted 798 424 affidavits, ex parte, not admissible as 259 125 ( 2^1 1 '?'? authority for, Article 91 | |gg ^ capital cases, not to be taken in 251 122 competency and credibility of deponent determined by court 798 425 INDEX 581 PAR. PAGE Deposition (continued): completed, certified by officer taking, disposition of. 257 124 fees paid persons before whom taken .............. 258 124 f 252 122 how prepared, etc ............................. \ 253 123 I 254 123 in foreign countries, by commission ................ 257 124 interrogatories, form for, Appendix E ............. 526 may be received by retiring board ................ 494 225 may be taken when, and in what cases ............ 251 122 not subject to objection if duly taken .............. 259 125 not to be read in capital cases .................... 798 424 oath to witness may be administered by whom ..... 256 124 of military witness, how obtained ................. 255 123 of witness may be obtained when ................. 250 122 pay of -persons before whom taken ................ 258 124 preparation of .................................. 254 123 subpoena for civilian witness, form of, Appendix E ............................................ 524 subpoena to be in duplicate ...................... 254 123 subpoenas for witness, how served .................. 252 122 taken by agreement or on reasonable notice to other party ........................................ 253 123 taken, cannot be withheld by either party ........... 798 424 territorial restriction, Article 91 r 251 122 < when and how obtained, when admissible .......... 798 424 within the State, Territory or District ............. 252 122 Deserter : approval of death sentence in time of war .......... 812 430 authority for arrest of ............................ 754 378 civil officers, authority to arrest, Appendix B ....... 481 definition of .................................... 710 328 enlistment of, prohibited .......................... 710 328 enticing to desert, harboring or concealing deserter, penalty ...................................... 758 381 forfeiture by, on conviction (see Appendix D) . . . . < (See Forfeitures; also Punishments.) liability to make good time lost, may be waived by United States ................................ 755 379 5nay be tried after expiration of enlistment ......... 755 378 Mot to be sentenced to death in time of peace ....... 754 375 officer resigning who leaves post prior to notice of acceptance ................................... 756 379 pardoned and restored to duty, effect of ........... 710 328 reward for ..................................... 754 376 right of U. S. to try, paramount ................... . 754 378 soldier enlisting, without discharge, in another regi- ment, etc .................................... 757 380 statute of limitation as defense (see Desertion) . surgeon's report on alleged, Appendix E ............ 503 to make good time lost ........................... 754 377 582 INDEX PAR. PAGE Desertion : absence with intent not to return 754 376 advising or persuading to desert 758 381 defined, includes absence without leave 754 376 dishonorable discharge relieves from charge of 360 169 elements essential to offense 754 376 enlistment in another regiment constitutes 757 380 escape of prisoner constitutes, when 734 376 evidence of previous convictions, in trial for (see f 307 146 Appendix D) 1 491 forfeiture on conviction of 1 25 ! L ooo loo form for charges, Appendix E 497 honorable discharge or "without honor" does not relieve from charge of, in prior enlistment ......... 360 169 includes intent not to return 754 376 limits of punishment for, Appendix D 484 loss of property by deserter (see Surveying Officer) . 546 245 officer, dropped for 66 34 f 754 378 penalty for { 186 96 [ 754 375 f 186 96 statute of limitation in trial for, Article 103 \ JQ ?I I iyo yy [ 810 429 survey on property in case of 546 245 what proof necessary to convict of 754 376 Dilatory Pleas (see Pleas). 180 94 Discharge : 359 168 360 169 361 169 711 329 492 effect of 711 329 honorable, by order of President or Secretary of War. 711 329 by purchase or favor 711 329 on certificate of disability 711 329 on writ of habeas corpus, U. S. Court 711 329 on expiration of term of enlistment, soldier entitled f 711 329 to \ 711 330 upon petition of soldier, conditions may be prescribed 711 330 when sentence extends confinement beyond period of enlistment 320 153 without honor 360 169 Discipline: civilians, when subject to, Article 63 770 413 conduct to the prejudice of. Article 62 769 411 Dishonorable Discharge (see Discharge): executed, cannot be revoked 447 206 dishonorable, by sentence of general court-martial (see Appendix D). INDEX 583 PAR. PA.GE Dismissal : applies to officers only 326 156 by executive order | 335 -^Q by sentence of court-martial convened by commander of division or separate brigade 814 432 constructive notice of 813 432 f 713 331 disqualification for office, after, Arts. 6, 14 < ^\ 336 effect of 333 160 tor cowardice, Art. 100 807 428 in time of peace 806 427 publication of sentence, Art. 100 807 428 record of court of inquiry as evidence in case involving . 828 437 sentence of, under Article 61 768 410 summary, in time of war, appeal from 335 161 summary, in time of war only 335 160 summary, no legal disability attached 335 161 suspension of sentence of, Art. Ill 818 434 suspension of sentence of 818 434 takes effect, when | gJ ^ Dismissal of Cadets : summary, for hazing 336 161 Disobedience of Orders (see Art. 21): character of, how given 728 347 consists in what 728 346 definition o'f "order " 728 346 of superior officer, Art. 21 728 344 order must be lawful; presumption 728 347 Disorders (see Art. 24): power to quell, Art. 24 731 351 what constitutes, under Art. 62 769 412 Disrespect : toward commanding officer, Art. 20 727 344 toward commanding officer, acts or words to be stated in specifications 727 344 toward commanding officer, form for charge, Appen- dix E 495 toward commanding officer, how exhibited, what con- stitutes ! 727 344 toward commanding officer, meaning of "command- ing officer " 727 344 toward President, Vice-President, Congress, or other civil authority, Art. 19 726 342 District Attorney, U. S. : to prosecute civilian witnesses refusing to appear or f 72 38 testify before courts-martial (see Appendix C).. . \ 482 what facts and papers to be furnished for prosecution of recalcitrant witness 73 39 584 INDEX PAR. PAGE Divine Service : attendance and behavior at, Art. 52 759 381 Division Commander : convening authority, when, Art. 73 (see Convening Authority) 41 21 reviewing authority, when (see Reviewing Au-J 430 196 thority) \ 431 197 Documentary Evidence: introduction of (see Evidence) 566 256 Documents : alteration of, or erasures in 565 256 as evidence (see Evidence) 566 256 court-martial record as evidence 558 253 court of inquiry record as evidence, Art. 121 478 219 courts, records and judicial proceedings of 557 252 foreign laws and judgments < 5 2 r;Q identification of, burden of proof 567 257 interlineations of, erasures in, etc 565 256 notice to produce 566 257 private, how produced in evidence 566 256 f 562 254 private writings, authentication of -j 563 255 I 564 256 public records as evidence, copies | 557 254 public records, authentication of (see Copies of Docu- ments) : 561 254 secondary evidence , . . 556 251 State laws, records, etc 557 252 war department records 558 253 Double Amenability: persons in military service (see Amenability) 112 59 Drunkenness : as affecting criminal "intent " j 276 132 defined 745 364 nature of intoxicant 277 133 365 275 132 pleaded in defense, when { 277 133 [ 745 366 presumption of criminal capacity, burden of proof. . 278 133 Drunkenness on Duty (see Art. 38): appearance for duty when intoxicated /.'.",. 745 365 commanding officer 745 365 commissioned officer 745 364 defined 745 364 guard, party, or other duty, penalty 745 364 medical officer 745 365 nature of intoxicant: . 745 366 INDEX 585 PAR. PAGE Drunkenness on Duty (continued) : need not entirely incapacitate 745 366 post quartermaster 745 365 Duces Tecum : iorm of subpoena for civilian witness, Appendix E . . . 524 Duels : accepting or sending challenge (see Challenge; Arts. 25, 20) 733 355 carrier, without knowledge, not punishable 734 356 carrying challenge, suffering or promoting, etc 734 355 challenge, sending, an offense 733 355 challenge, what constitutes 733 354 definition of 733 354 duty of commanding officer, Art. 27 734 355 engaging in a duel 733 353 engaging in, chargeable under Art. 62 733 353 engaging in, punishable at common law 733 354 forbidden by common, statute, and moral law 735 354 form of challenge 733 354 permitting, penalty for 734 355 seconds or promoters guilty as principals 734 355 upbraiding for refusal to fight, prohibited 735 356 Duress (see Compulsion). Duty: drunkenness on. Art. 38 (see Drunkenness on Duty). every soldier to perform his own, except sick, etc. . . . 743 363 hiring another to do, prohibited, Art. 36 743 363 neglect of (see Art. 62) 769 411 3M of sentinels 746 367 of sentinels in charge of prisoners (see Sentinels) 746 368 on duty, meaning of term 745 364 Dying Declarations: admissibility, determined by court 582 262 admission as evidence, when (see Evidence) 582 261 Effects of Deceased Officer : disposition of, Art. 125 832 444 Effects of Deceased Soldiers : disposition of , Art 126 833 446 Embezzlement (Art. 60): acts constituting prima facie evidence of 767 407 acts declared by statute to constitute, statutory. . . . | ^^ ^^ acts of conversion to his own use 767 406 conversion of funds 767 404 defined, differs from larceny 767 404 form of charge for, Appendix E 502 funds held in fiduciary capacity 767 404 586 INDEX PAR. PAGE Embezzlement (continued) : intent in 767 408 kinds of, depending on intent 767 408 officers, affected by statutes concerning j !f \ 767 404 penalty \ 767 405 I 767 408 statutory provisions tor punishment of 837 450 what must be proved to establish 767 406 Employee : subject to military discipline when, Art. 63 770 413 Employment of Troops to Enforce the Laws : action required of officer applied to, therefor 692 317 army as posse cormtatus. . . 689 315 constitutional duty ot President, his powers 688 315 in emergency, responsibility of commander 693 318 necessity detarmined by President, he has jurisdic- tion over all territory within the United States, and to enter State limits 694 318 proclamation of President 694 318 { 690 315 purposes for which army may be used .",* \ 690 316 (note) [ 690 317 removal of trespassers from military reservations, (note) 691 317 restriction on, by act of Congress 689 315 to guarantee republican form of government to a State, or protect it from invasion 688 315 to protect passage of mails, commerce, trade, etc (note) 691 317 to suppress insurrection etc 690 316 to suppress unlawful assemblages, etc 690 316 troops act only under orders of President, not of civil officers 692 317 troops not to act without military authority therefor. 692 317 Enemy : aiding or assisting, Article 45 752 374 captured property from (see Captured Property) . . < g^g ^^ harboring or protecting, Article 45 752 374 holding correspondence with or giving intelligence to, Article 46 753 375 meaning of word 752 374 misbehavior before 749 372 trading with, prohibited, penalty 837 450 Enforcement of the Laws (see Employment of Troops to Enforce the Laws) 688 315 Enlisted Men : absence without lave 739 359 absence without leave, forfeiture for (see Forfeiture) . . 739 360 INDEX 587 PAR. PAGE Enlisted Men (continued) : accountability ior effects of deceased .............. 833 447 accused of capital crime, or offense against citizen, to be delivered up ............................... 766 396 amenable to civil suit in certain cases .............. 116 61 amenable to military law at all times and places ..... 54 29 amenable to Territorial statutes .................. 766 397 appeal from adverse decision, regimental court lor doing justice .................................. 737 358 arrest and confinement of, Article 66 ........... | 7-,^ 414 arrest of, by civil authority ...................... 107 57 arrest of, by civil authority on mesne process or for debt ......................................... 697 319 arrest of non-commissioned officer ................. 104 55 behavior in quarters and on the march ............ 762 383 conduct to prejudice of good order, etc., Art. 62. ... 769 411 f 104 55 confinement of, Art. 66 (see Arrest) .............. <{ 106 56 I 773 414 confinement, release from, Art. 70 (see Confinement). 777 415 counsel for ** death of, disposition of effects, Art. 126 ............ 833 445 deceased, accountability for effects of ............. 834 447 discharge of (see Discharge) ...................... 711 329 discharged and in confinement, subject to Articles of War, etc., Appendix B .............. ......... 481 dishonorable discharge of, Appendix D (see Discharge) 492 dishonorable discharge, sentence may be commuted by President .................................. 334 160 divine service, attendance and behavior at ......... 759 381 doing violence to persons bringing provisions, etc., Art. 56, penalty ................................... 763 383 drunk on duty (see Art. 38) ....................... 745 364 enlisting in another regiment, etc., without regular discharge .................................... 757 380 enlistment of (see Contract of Enlistment) .......... 710 326 entitled to discharge at expiration of term of enlist- ment ......................................... 711 330 failure to repair to place of parade, etc., Art. 33 ..... 740 360 forcing safeguard, Art. 57 ........................ 764 384 forms of punishment, appropriate for .............. 327 156 found drunk on duty, punishment for .............. 745 364 found one mile from camp, Art. 34 ................ 741 361 fraudulent enlistment ............................ 710 328 furloughs, by whom granted ...................... 718 335 in confinement or arrest not liable to be delivered to civil authorities under Art. 59 .................. Ill 59 limit of confinement before trial .................. 777 415 lying out of quarters, garrison, or camp ............ 738 358 may be detailed as clerk for judge-advocate ........ 164 84 non-commissioned officers, how placed in arrest. . . . 104 55 not to be confined except by order of officer ........ 104 56 588 INDEX Enlisted Men (continued) : not to do violence to persons bringing victuals 763 383 not to hire another to do his duty 743 363 oath of enlistment, Art. 2 709 325 of any troops in service of U. S. subject to Articles of War 771 414 off duty 769 412 officer arresting, to report fact to their commander. . 104 56 on d uty. . 745 364 on furlough subject to arrest as any other citizen.. . 109 58 period of confinement before trial, Art. 70 106 56 private soldiers, how placed in arrest 104 55 procedure in case of death of 833 445 punishments for (see Punishments) 327 156 quitting guard, platoon or division 747 371 redress of wrongs (see Art. 30) 87 47 reduction from first-class to second-class private*, Ap- pendix D * 492 selling, or through neglect losing or spoiling horse, arms, clothing, etc 724 337 selling or wasting ammunition 723 337 sentinel, sleeping on post or leaving same 746 367 statement of character to accompany charges 305 145 status of 31 16 subject to laws of two jurisdictions, military and civil, in certain cases 31 16 surrender certain personal rights 31 16 to repair to place of parade, rendezvous, etc 740 360 to report deserter enlisted in another regiment 757 380 use of profane oath by, forbidden 760 382 wronged by officer, remedy for 737 357 Enlistment : a contract which changes status of person 710 326 contract, how made by oath, Art. 2 < ^ ||g by receipt of pay, Art. 47 754 375 discharge from (see Discharge) 711 329 fraudulent 710 328 fraudulent, of minors 710 327 limits of age for 710 327 may be annulled by executive 711 330 oath of, Art. 2 709 325 of deserter pardoned or restored to duty 710 328 of minors, decisions of courts regarding, Appendix E. 537 of minors, prohibition applies to volunteer army. . . . 710 327 of minors, when permitted and when prohibited. . . . 710 327 prohibited, of a deserter 710 328 prohibited, of person convicted of infamous crime . . . 710 326 status, how created | ^^ terminated, how 711 329 void, of insane and intoxicated persons 710 326 voidable by U. S. in what cases 710 326 INDEX 589 PAR. PAGE Escape : of prisoner during trial 156 81 prisoners to be halted before fired upon 746 369 rule of common law as to prevention of 746 369 Estoppel : presumption of law (see Evidence) 601 271 Evidence : admissions against interest 583 262 affirmative and negative 649 294 against interest 625 283 as to character, admissible when 591 266 as to motive, admissible 651 295 attorney and client 632 287 before court of inquiry 471 216 burden of proof 604 273 burden of proof, how determined 604 274 burden of proof in collateral issues 606 275 burden of proof, on state in criminal cases 605 275 circumstantial 553 249 classification of, according to character 552 248 classified with respect to its object 554 250 common law rules of 549 247 common law rules of, modified by statute 550 247 competency of witness (see Competency) 610 277 conclusive 553 249 confessions 584 262 effect of 585 263 confidential communication, husband and wife 629 285 attorney and client 632 287 clergyman and physician 633 287 corroborative 554 250 court of inquiry, record as 478 219 credibility (see Witnesses) 610 277 cumulative 554 250 declarations by defendant or by his authority 583 262 definition 551 248 departure from rules of, by courts-martial < fjg 247 depositions (see Depositions) 251 122 direct 573 258 direct and indirect 552 248 divided according to its nature 553 249 documentary (see Documents) | ~.~j~ ^-i dying declarations 582 261 experts 590 266 foreign laws, judgments 559 253 how authenticated 560 253 foreign unwritten law, usages, etc 560 253 general rules governing introduction of j j? 5 . 5 . |^J given in former proceedings, when admissible 588 264 590 INDEX PAR. PAGE Evidence (continued): handwriting, how proved < ^ . 9C .^ hearsay 553 250 hearsay, when admitted 578 260 identification of documents 567 257 f cci 261 in conspiracy | 65J ^ ' ^50 248 incriminating, of witness (see Criminating Questions) < j^ 2 g indirect, circumstantial 576 259 indirect, collateral facts 575 259 indirect, hearsay, objection to, etc 577 259 indirect, when admitted 574 259 indispensable 553 250 inscriptions 570 258 in trial for treason 587 264 introduction of, when 232 116 irrelevant, admitted, when 609 277 irrelevant, inadmissible 608 277 judicial notice, classified 594 267 court may require production of books, docu- ments, etc 596 269 facts admitted by parties 597 270 f 594 267 what embraced in first class { 594 268 L 594 269 what embraced in second class 595 269 why accepted 593 267 meaning of the word 551 248 of two witnesses necessary to convict of false muster. . 721 336 opinion, when admitted 589 265 oral 569 257 partial 553 249 presumptive 553 249 presumptive, as to arms, clothing, etc., of the United States in hands of person not a soldier 724 341 presumptive, classes of, defined 598 270 presumptions, conclusive, defined 599 271 presumptions, disputable 602 272 presumption, estoppel 601 271 presumption of fact, defined, etc 603 273 presumptions of law 600 271 presumptions of law, defined and classified < -Q^ 271 prima facie evidence 553 249 primary and secondary 552 248 primary, original and best 556 251 private writings, how proved 562 254 proceedings of court of inquiry, admitted when, / 478 219 Art. 121 \ 828 437 public documents ". 557 251 public officers, appointments of 571 258 public records, how proved 561 254 INDEX 591 PAR. PAGE Evidence (continued): real 553 250 "reasonable doubt," what is 604 274 relevancy, relevant facts 607 276 res gestce 579 260 res gestos, admissibility of 580 261 rules of, controlling courts-martial 547 246 rules of, modified, as before courts-martial 550 247 rules of, not necessarily enforced by courts of inquiry . . 471 216 satisfactory 553 249 secondary, when admissible 568 257 substance of issue and matter of description to be proved 650 294 substantive 554 250 test of 'admissibility of confessions 586 263 to be "beyond reasonable doubt" in criminal cases. . 604 274 voluminous facts, many books, etc 572 258 war department records. 558 253 witness, competency, and credibility (see Competency; Credibility) 610 277 Examination of Witnesses (see Witnesses) 238 118 Examining Boards (see Boards). Excusable Homicide (see Homicide) 765 390 Execution of Sentence (see Punishments; Reviewing Au- thority) 443 202 Executive Departments: records as evidence (see Documents) 557 251 regulations of 14 8 Executive Order : establishing limits of punishment, Appendix D 484 Exemption : from service in militia, who exempted 831 441 Experts : admissibility of evidence (see Evidence) 590 266 as witnesses 234 117 employment of, authority for 590 266 hypothetical question to 590 266 qualifications 590 266 Expiration of Service 711 329 False Alarms : how made, penalty (see Art. 41) 748 371 False Certificates: as to absence or pay of officers or soldier, penalty. . . . 720 335 by officer, chargeable also under Article 61 768 410 need not be made "knowingly " if so in fact 720 336 trivial errors, etc., not chargeable as false certificate. 720 336 under Article 60. . 767 398 592 INDEX r^ t .. PAR. PAGE False Muster: penalty for, evidence required to convict of 721 336 False Receipts 767 403 False Reports: by officer, chargeable under Article 61 768 410 False Returns (Art. 8): of state of command 715 332 statutory provisions for punishment of 837 450 False Signature (Art. 60) 767 402 False Swearing: charged under Article 62 (see Appendix E). . / 767 ^ ^ (notej oOZ consists in what 767 401 definition of, how punishable (see Art. 60) 767 400 ( 767 398 False Vouchers, Art. 60 .{767 402 1 767 403 Felonious Homicide (see Homicide) 765 390 Felony: conviction of, definition, excludes as witness 616 280 Field Officers' Court: abolished 80 44 Files: loss of (see Loss of Files; Punishments) 341 162 Finding: acquittal (see Acquittal) 299 143 basis of 292 139 comments in connection with 300 143 doubt, "reasonable doubt," what constitutes 294 140 evidence as to character, influence on 591 266 exceptions, substitutions 296 141 of lesser kindred, included, offenses ( ^ \^. [ /bo oyo on specifications must support charge 295 140 record of 405 185 retiring board, is conclusive as to tacts, when 512 232 under Art. 62, when charged under Art. 61, and the reverse 297 141 voting on 372 173 tie vote (see Voting. . ) 376 175 Fines : accrue to the U. S 350 165 definition of, differ from forfeiture or stoppage 350 165 enforcement of, by imprisonment 350 165 Fleeing from Justice: what constitutes 189 98 INDEX 593 PAR. PAGE Flogging, Art. 98. prohibited ...................................... 805 427 Force : employment of troops in enforcement of the laws (see Employment of i roops to Enforce the Laws) .... 688 315 in arrest ........................................ 90 50 in quelling mutiny ............................... 730 351 Forcing Safeguard (see Art. 57) ........................ 764 384 Foreign Laws, Judgments, etc.: how authenticated ............................... 560 253 Forfeiture : absence without leave by soldier and by officer ...... 739 360 accrues to United States only ................... | |^ J 6 ^ by operation of law ............................. 351 165 by sentence, must be specifically stated ............ 340 162 definition of .................................... 351 165 how affected by date of order promulgating action on proceedings ................................... 434 198 limit in certain cases, Appendix D ................. 492 lee Forgery : defined, distinguished from counterfeiting .......... 767 402 of signature, Art. -60 ............................. 767 402 Form: account of civilian witness in government employ, Ap- pendix E . . . . ---- . ........ . ................... 529 account of civilian witness not in government employ, Appendix E .................................. 528 account of reporter, Appendix E ................... 533 for charges, Appendix E .......................... 494 habeas corpus, by State court, return to, Appendix E . 536 habeas corpus, by U. S. Court, return to, Appendix E . . 534 interrogatories and depositions, Appendix E ........ 526 monthly report of summary court cases, Appendix E. . 515 proceedings of retiring board, Appendix E .......... 519 record of garrison court-martial, Appendix E ........ 516 record of general court-martial, Appendix E ........ 504 record of regimental court-martial, Appendix E ..... 518 record of s immary court, Appendix E ............. 514 return of service of subpoena, Appendix E .......... 525 revision of record of general court-martial, Appendix E 512 sentence , Appendix E ........................... 522 special orders, court-martial sentence, Appendix E . . . 534 statement of service, Appendix E .................. 503 subpoena, civilian witness, Appendix E ............ 523 subpoena, civilian witness, for deposition, Appendix E 524 subpoena, duces tecum, Appendix E ................ 524 { 594 INDEX PAR. PAG1 Form (continued): summons tor military witness, Appendix E ^23 surgeon's report ot alleged deserter, Appendix E 503 warrant of attachment for witness, Appendix E 525 Fraud : dismissal for, publication of sentence, Art, 100 807 428 includes what offenses 807 428 sentence 01 officer on conviction of 807 428 statutory provision for punishment of 837 450 Fraudulent Claims : against the United States, what constitute 767 398 jurisdiction of court-martial over, under Art. 60 767 399 Fraudulent Enlistment: charge and specification must state receipt ot pay and allowances 710 328 definition, nature of offense 710 328 form of charge for, Appendix E 501 how proceeded against 710 328 voidable by United States, but not by minor or parent, Appendix E 537 what constitutes 710 328 Frays : suppression of (see Art. 24) 731 352 Furloughs : by whom and to whom granted, length, Art. 11 718 335 Garnishee : officer in possession of government funds not subject to 699 321 Garrison : articles of war to be read to, Art. 128 835 447 false alarms in, Art. 41 (see False Alarms) 748 371 lying out of, Art. 31 738 3c8 Garrison Courts-martial (see Courts-martial) . authority for (see Arts. 82 and 83: Courts-martial). ... 26 13 circumstances under which convened 76 41 composition, Art. 82 < ygg 4 jg convening authority, Art. 82 789 4 19 f 425 194 disposition of records of | 42 6 194 form of record for, Appendix E 516 75 40 j 76 41 jurisdiction j g^ *? ( 793 420 limits of punishing power, Art. 83 790 420 order convening | gg ^ INDEX 595 PAR. PAGE Garrison Courts=martial (continued) : f 74 40 organization .................................. \ 81 45 I 789 419 procedure ........................... . .......... 75 41 record of.. ................... ( 4 20 192 record, to whom forwarded . ...................... 413 189 reviewing authority, Art. 104 testimony before, not recorded .................... 420 192 when to be convened ........................... j 15 .X General Courts=martial : a statutory tribunal (see Courts-martial) ............ 26 13 acts within jurisdiction not subject to review by habeas corpus .................................. ...... 52 28 appeal to, from regimental court for doing justice, I Art. 30 (see Appeal) ........... ............. 1 ^ 3 | composition of, to be composed of officers ......... 46 24 convened by whom, Arts. 72 and 73 (see Convening Authority). convened by cammander of separate brigade, when. . 41 21 / 0*7 on convened by corps commander, when ............ j jx' ^Q convened by division commander as commander of a department, when ............................. 35 19 convened by the President as constitutional com- mander-in- chief ............................... 36 19 convened by superintendent of the U. S. Military AcaHeny, for trial of cadets ..................... 44 23 disposition of record of ........................... 422 193 eligibility of regular officers, for trial of other forces . 50 26 evidence before, introduction of ................... 232 116 evidence of previous convictions, in connection with offenses, Appendix D .......................... 491 how constituted (see Constitution of Courts-martial). judge-advocate for .............................. 148 76 judgment not subject to review ................ _____ 52 28 jurisdiction of .......... . ........................ 52 28 jurisdiction as to persons and offenses .............. 54 29 jurisdiction, exclusive, in what cases ....... . ...... 55 30 jurisdiction extends to minor included offenses ...... 61 32 jurisdiction in time of war, etc ..................... 60 31 marine corps detached for service with army. . . v . . . 50 26 members inferior in rank to accused ........... . . . . 49 25 number of members determined by convening author- ity ......... : ................................. 46 24 officers who may be assigned to duty as members of . . 48 25 pleas before (see Pleas') ........................... 177 93 power to convene or to act on proceedings a personal power, cannot be delegated ..................... 39 20 590 INDEX General Courts=martial (continued) : power to convene, where and on whom conterred (see / 33 18 Courts-martial) \ 40 21 proceedings of, court convened by order of the Presi- dent to be sent to Secretary of War 36 19 procedure of (see Courts-martial) . quorum 46 24 record, form of, Appendix E 504 record, form for revision of, Appendix E 512 record of (see Court-martial; Record) 380 177 responsibility of members for exceeding legal power. . . 52 28 review of proceedings (see Reviewing Authority). revision of record 415 189 territorial jurisdiction 53 29 to be convened by the President, when < !; fi iq who may convene, in time of peace or war, Art. 72 .. 34 18 who may convene, in time of war only, Art. 73 41 21 General Issue: plea to (see Pleas). ! 204 103 General Officers: power to convene courts-martial, Art. 72 34 18 sentence of, subject to approval by President, Art. 108 779 417 General Orders : as evidence, how authenticated (note) 17 9 Geneva Convention : relating to sick and wounded in time of war 656 298 Gentlemen : conduct unbecoming (see Art. 61) 768 409 Giving Intelligence to the Enemy: prohibited (see Art. 46) 753 375 Good Order : {761 ^?82 7A9 QQ 769 411 Grain-fields : destruction of, Art. 55 762 383 Guard : commander of (see Commander of Guard). Guard Duty (see Sentinels) 746 367 Guerrilla Marauders : death sentence, approval and execution of; may be / 812 431 tried by court-martial in time of war, Art. 105. . . \ 812 430 not protected by laws of war 656 299 INDEX 597 PAR. PAGE Habeas Corpus : application for, by officer arrested for act done under authority of United States 701 321 brief to file with return to U.S. courts, Appendix E. . 537 cannot be used to serve purpose of writ of error 457 210 for release of minors 710 327 form of return to writ: issued by State Court, Appendix E 536 issued by United States Court, Appendix E. . . 534 illegal restraint by court-martial without jurisdiction. 63 32 instruction as to return to, Appendix E 536 indemnity for suspension of writ by executive author- ity, when 680 311 in the Philippines 230 114 judgment of court-martial not subject to review by. .. 187 97 judgments of courts-martial without jurisdiction may be reviewed by 27 14 f OO^I "| "I O jurisdiction, United States Court, Appendix E < ^^ may issue, when court-martial exceeds jurisdiction. .. 457 209 not available to redress errors of courts-martial acting within their jurisdiction 52 28 power to declare martial law includes power to sus- pend 679 309 power to suspend, ordinarily in Congress I goQ ,i n President suspends privilege, when < goQ QIQ responsibility of executive or military commander for suspension tSO 310 returns to, instructions for, Appendix E 536 suspension of the privilege does not suspend the writ itself 681 311 suspension of privilege of writ included in power to declare martial law 680 309 suspension of writ under martial law, responsibility and indemnity for C80 311 to discharge soldier 711 329 to secure discharge at expiration of enlistment 711 330 f 225 112 witness held under warrant of attachment (see At- I 996 112 tachment) | 907 Harboring Deserter (Art. 50) 757 380 Harboring Enemy (Art. 45) 752 374 Hiring Duty (Art. 36) 743 363 Holding Correspondence with Enemy (Art. 46) 753 375 Homicide (see Art. 58): classes of: excusable felonious f 765 390 justifiable I 598 INDEX PAR. PAGE Homicide (continued) : definition 01, Article 58 ........................... 765 390 manslaughter ................................... 765 390 murder ......................................... 765 392 on military reservation, tried by United States Courts . 746 370 sentinel killing escaping prisoner ................... 746 370 within jurisdiction of State, tried by State Court .... 746 370 Honorable Discharge (see Discharge) ................... 711 329 Horse : responsibility for, Art. 17 ......................... 724 337 Houses : waste or spoil in, Art. 55 ......................... 762 383 Husband and Wife: as witness against each other (see Evidence) ........ 629 285 Idiocy: as a defense for crime ............................ 270 130 Idiot: incompetent to testify as witness .................. 622 282 Ignorance : as a defense, of fact, when allowed ................. 281 134 of law, no excuse (see Defenses) ............. 279 133 Impeachment (see Witness): of accused, as witness ............................ 626 284 use of record of court of inquiry, Art. 121 ........... 828 437 witness, testimony, how impeached ................ 639 290 Imposition : on sales of victuals, etc., piohibited, Art. 18 ........ 725 342 Imprisonment (see Arrest; Confiement; Punishments); beyond expiration of service ...................... 320 153 commissioned officer, Art. 65 enlisted men (see Punishments) hard labor, while in ............................. 343 163 in military prison .............................. { ^ [g ( 313 149 in penitentiary or State prison .................. \ 344 163 I 345 163 may be awarded for period till fine is paid, when .... 342 163 meaning of word, in 60th Article of War ............ 319 152 when operative .................................. 318 152 Inclosures : waste or spoil in, Art. 55 .......................... 762 383 Included Offenses (see Finding) ........................ 765 395 Incompetency of Witness : grounds of (see Competency of Witnesses) .......... 614 278 INDEX 599 PAR. PAGE Incriminating Evidence (see Evidence) 634 288 Indian Reservation : arrest on, by troops 690 315 Indemnity : for acts done under martial law 680 311 for property seized in time of war 659 299 Infamous Conduct, Article 61 768 409 In amy : denned 616 279 how established, before court 618 281 what constitutes 616 2:0 \\itnesb incompetent on ground of . 616 279 Infancy : as a defense, capacity to commit a crime 269 130 Infants : admissible as witnesses when 621 282 Inferior Courts : composition and constitution (see Composition of Courts-martial; Constitution of Courts-martial), evidence of previous convictions in connection with cases, Appendix D 491 garrison court-martial, charges, papers to accompany, etc 131 68 jurisdiction of, Art. 83 ' . 7GO 420 plea of former trial applies to 809 429 { 425 194 record, disposition of { 426 194 I 427 194 regimental court-martial, papers to accompany charges 131 68 statute of limitations does not apply to 191 99 summary court may take judicial notice of previous convictions, when 131 68 summary court, papers to accompany charges 131 68 Inferiors in Rank : trial by, Art, 79, detail determined by convening ( 49 25 authority \ 140 72 ( 4Q 25 not ground for excuse of member < ^ ^ Inquiry (see Court of Inquiry). Insanity: affecting competency of witness, insane person incom- petent 622 282 competency determined by court 622 282 lucid intervals 622 282 as a defense 271 130 emotional or moral, not excuse for crime 272 131 test of capacity to commit crime 273 131 600 INDEX PAR. PAGE Insurrection (see Employment of Troops to Enforce the Laws). authority of President to use troops to suppress 680 311 martial law applicable to 670 304 proclamation of President 678 308 use of troops in 688 315 Intelligence : giving to the enemy, prohibited 753 375 Intent : f cytj r -j OO drunkenness as affecting < 275 must be set forth in specification when necessary ele- ment of offense 121 64 necessary to be proved in crimes under the 58th Art. of War 765 395 not an element of the offense in certain articles of war . 121 64 to remain absent, a necessary element of desertion . . . 754 376 Interest : incompetency of witness on ground of (see Competency of Witnesses) 625 283 Interlineations : in documents 565 256 in record of court-martial 417 191 Interpreter : appointment of, duty, how paid 165 85 introduction and oath of 165 84 necessity for, determined by court 165 85 Interrogatories : for depositions, Art. 91 (see Depositions) 254 123 form for, Appendix E 526 Intoxication (see Drunkenness): affecting competency of witness 624 283 as affecting criminal intent, in defense 275 132 on duty, Art. 38 745 364 Introduction before Court : of accused 154 80 of counsel 154 80 of interpreter 165 84 of reporter 162 83 of witness 233 116 Inventories : of effects of deceased officer 832 444 of deceased soldier 833 445 Irons : accused not to be in, when before court 156 81 Joint Charges: when drawn 729 350 INDEX 601 PAR. PAGE Judge=advocate : absence of 149 77 administration ot oath to members ot court-martial, / 174 90 Art. 84 \ 791 421 ( 249 121 announces close of prosecution < ^QV JCQ appointed for any court-martial by officer authorized to appoint the court 45 23 as adviser of the court 148 76 as counsel tor accused 148 76 asking question after close of examination ot witness . 246 121 cannot enter a "nolle prosequi" except wi,tn au- thorized 211 106 certifies accounts of civilian witnesses (see Appen- / 217 109 dix E) (note) j. 530 counsel tor accused it he has no counsel, duty 155 80 death or disability of 381 178 duties during trial 151 78 duty of 148 76 duty of, as counsel for accused 157 81 ot court-martial, by whom appointed 781 418 introduces witnesses, when 233 116 issues writ ot attachment for witness (see Attachment) 221 110 may be relieved it an accuser or material witness. .'. . . 149 76 may challenge member of court j Y^ ~*j may correct minor, but not a material, error in charge. 126 66 may correspond directly with Judge- Advocate-General, etc., when 424 193 may testify as a witness 233 116 member of court cannot act as 149 77 not subject to challenge 149 76 oath of. by whom administered 792 422 oath of, as witness, 799 425 by whom administered 799 425 of departments, custodians of proceedings and records of inferior courts 425 194 opening ot case 232 116 performance of other duties, etc 146 75 preparation for trial 150 77 reply of, in trials 291 137 to be in or attached to record 404 185 retires when court is closed 781 418 right to challenge members of court-martial 172 90 summons all witnesses 212 107 to authenticate record 151 78 to be present on reconvening of court for revision. . . 416 191 to certify account of witness making deposition 258 124 to employ reporter, when authorized 163 84 to forward proceedings of court-martial to reviewing authority (see Record) 820 434 to furnish copy of charges, etc., to accused 129 66 to keep record of court . 151 78 602 INDEX PAR. PAGE Judge=advocate (continued) : to prosecute in name of the United States 797 423 to sign adjournments from day to day 311 188 to withdraw when court is closed 152 78 to write finding and sentence in record 382 178 who may appoint, how designated 148 76 Judge=Advocate=Qeneral : custodian of records of courts-martial 422 193 opinions of, approved by Secretary of Wat binding on military establishment '. 25 12 f 27 13 Judgments, of courts-martial conclusive when having! 27 14 jurisdiction j 30 15 I 62 32 Judicial Notice (see Evidence) : facts recognized by courts 593 267 matters of public interest within knowledge of all persons 594 268 matters which court is directed by statute to notice 594 269 matters which take place in presence of court . 594 2b'9 matter within knowledge of particular court, as . its officers, official records, etc. . . . 594 269 public laws. . 597 267 of foreign laws, or laws of another State, not taken, (note 4) 594 267 Jurisdiction : amenability of military person to trial in civil courts. . 56 30 amenability to military trial (see Amenability). defined. 1 1 double amenability of military persons 56 30 military, defined 2 1 of a State, denned 1 1 of civil courts over enlisted men in certain cases. ... 31 16 of officer authorized to convene courts-martial, com- plete within the limits of his command 40 21 of state courts over offenses committed within their limits 766 397 of Territorial courts, over offenses committed on mili- tary reservation 766 397 over act committed in one State or district taking effect in another 765 392 over act which is an offense against both civil and military law 112 59 over homicide on military reservation 746 370 over offenses committed on territory ceded to United I 115 60 States 1 766 397 waiver of objection to, will not confer 179 94 Jurisdiction of Courts=martial : acquittal by civil court not bar to trial by militaiy court (see Courts-martial) 56 30 after expiration of service 64 33 INDEX 603 PAR. PAGE Jurisdiction of Courts-martial (continued): as to offenses 54 29 as to persons 55 30 conditions necessary to show 67 35 criminal in character 54 29 defined 52 28 does not extend to civil cases 28 14 facts necessary to sustain 179 93 for trial of persons in service toi unauthorized trade, with State in insurrection or rebellion 837 450 in certain cases 31 16 must be shown affirmatively by its proceedings 57 31 not exclusive as to what acts 56 30 not lost, after assumed, by escape of prisoner 156 81 of court illegally constituted, cannot be waived 206 104 over citizen employees, retainers to camp, etc., ame- nable to, Art. 63 770 413 over persons in service trading in captured property. . 838 450 over persons serving with armies in the field, Art. 63. . 770 413 plea of "guilty " admits jurisdiction of court 206 104 plea to, by accused 166 86 f 177 93 plea to. effect if sustained j jyg g^ statutory, cannot be inferred 57 31 taken before expiration of service, by arrest, etc., con- tinues after expiration, when 65 34 territorial limit 53 29 to try cases of fraud, false return, and embezzlement, etc., by persons in service 837 450 what necessary to be shown < Q7Q , - 7 (^ o i y jii Jurisdiction of General Courts-martial (see Jurisdiction of Courts-martial) : exclusive over whom, and in what cases 55 30 over offenses "in time of war " 765 385 over officers dropped for desertion 66 34 over spies 836 448 statute of limitations in case of desertion 65 34 to be ascertained before trial begins 52 28 Jurisdiction of Inferior Courts-martial (Art. 83) 790 420 garrison courts-martial 75 40 regimental courts-martial 77 42 summary court 79 42 Justifiable Homicide (see Homicide) 765 390 Larceny : classes of, Art. 58 765 386 definition of, punishment for 765 385 form for charges for, Appendix E 502 intent in 765 386 of property of United States 767 404 Lawful Order : disobedience of, Art. 21 728 344 604 INDEX PAR. PAGE Law: f 3 2 military (see Military Law) ..................... \ 6 3 I 7 5 the unwritten, consists ot what .................... 19 10 L?WS of the Land: include municipal ordinances, etc .................. 107 57 Laws of War : acts of commander and armies governed by, in war- fare .......................................... 656 298 a part of international law ........................ 652 296 as to property destroyed in warfare ................ 655 298 convention, regarding sick and wounded ............ 656 298 contributions, by whom levied .................... 657 299 effect of existence of war upon citzens and property. . . 654 297 general orders 100, United States Army, 1863 ....... 653 297 governing armies of the United States ............ / *|52 296 [ ooo ^y / govern military commander, when. . . .............. 654 298 indemnity for property seized ..................... 659 299 f 5 2 martial law (see Martial Law) ................... \ 6 4 I 668 303 military government (see Military Government). . . < gJj g^r not protecting guerillas ........................... 656 299 occupied territory, property in .................... 659 299 protection of certain individuals and property ....... 656 299 regulated by agreement and convention | j*^ 299 requisitions, by whom made ...................... 658 299 spies, punishment of (see Spies) ................... 836 448 when in force, whence derived .................... 652 296 Leading Questions : admissible when .............................. ! |*8 121 definition of .................................... 248 121 121 objections*) .................................. test of ................................. ' ........ 248 121 Leaving Post: by sentinel (see Art. 39) .......................... 746 367 Legal Precedents: approved decisions of courts-martial ....... . ....... 22 12 decisions and opinions of heads of departments ..... 23 12 decisions of courts, when binding on other courts .... 22 11 decisions of courts, when to be followed ............. 21 11 stare dedsis, doctrine of .......................... 22 12 Liability of Members of Courts-martial : for exceeding legal jurisdiction .................. | || ?J INDEX 605 IL V\y J VIC*! LIMA LwC4.TT extends to whom, and where < PAR. PAGE Liability to Martial Law : " 5 2 676 308 Liability to Military Law: begins when (see Amenability) 31 16 ends when (see Discharge) 711 329 f 3 2 extends to whom, and where < ^ 29 of civilians, Art. 63 770 413 of civilians in time of war 836 448 of militia, Arts. 64, 124 of volunteers, Arts. 64, 123 Limitation, Statute of (Art. 103), (see Statute of Limita- tions) 810 429 Limit of Punishments : ( 325 155 executive order prescribing (see Appendix D) j 4 g 4 power of President to establish 325 155 Loss of Files : applicable to officers only / ||6 156 effect of sentence (see Punishments) 341 162 Loss of Record : effect of (see Record) 414 189 Lurking as Spies 836 448 Lying Out of Quarters, Art. 31 738 358 Majority : voting, decides in what cases, exception 371 173 voting on death sentence, number necessary 375 174 Making Good Time Lost: on conviction of absence without leave 739 360 through desertion, Art. 48 j ^ ^g waiver of requirement by commanding officer. ....... 739 360 Mandatory Sentences: cannot be lessened or increased 325 155 death, Art. 57 764 384 dismissal 332 159 Manslaughter : classes of, Art. 58 765 390 corpus delicti to be proved 765 393 definition of 765 390 involuntary 765 391 superior officer in enforcing discipline 765 392 voluntary 765 390 606 INDEX PAR. PAGE Marches : behavior on, Art. 55 ............................. 762 383 command on, when different corps join, Art. 122 .... 829 437 good order on, Art. 54 ............................ 761 382 reparation for injuries done on, Art. 54 ........... \ ];{ for ^ /Dl OoZ Marine Corps: assigned for duty with army, Art. 78 command, when joining or on duty with the army, Art. 122 ...................................... 829 437 court-martial for, when joining or on duty with the army ......................................... 50 26 relative rank, when joining or on duty with the army . . 829 437 Married Woman: constrained by husband (see Defenses) ............. 288 136 Markets : disturbing, reparation for injury to, Art. 54 ........ 531 239 Marking the body : as punishment, prohibited, Art. 98 ................ 805 427 Martial Law: (CO as applied to the army ......................... | 66Q 3Q4 denned .................................. 670 304 /CO at home, or as a domestic fact .................. < ggg 394 denned .................................. 671 304 at home, ceases with necessity for its existence ...... 677 308 commander may arrest suspected persons and forcibly enter premises to do so ........... 674 307 commander may continue civil courts, officers, etc ......... ................... . . ...... 674 307 commander subject to future responsibility for unjust or arbitrary action ................ 674 307 declaration of, effect to suspend privilege of writ of habeas corpus ............ . ........ 679 308 executive, governs by military force, etc., is supreme ............................... 60 309 exists only when, declaration of ............ 672 306 justified when ............................. 671 305 not applicable when civil power is still supreme . 671 306 not provided for in the Constitution and justi- fied only by necessity .................... 671 305 power to declare, includes power to suspend writ of habeas corpus ..................... 679 309 prevails only when ......................... 671 305 proclaimed by executive authority, when, dec- laration of ............................ . . 673 306 proclamation commanding insurgents to dis- perse not a declaration of martial law ....... 678 308 responsibility of commander ................ 675 307 INDEX 607 PAR. PAGE Martial Law (continued) : responsibility of executive for suspension of writ ot habeas csrpus under ............... 680 310 results only Horn public exigency ........... 671 305 superior to all law while necessity exists ...... 672 306 suspension ot privilege of writ ol habeas corpus, effect of ................................ 681 311 suspension ol privilege ot writ ot habeas corpus under declaration ot , not assumption ot power ol Congress ............................. 680 309 definition of.. ..... divided into phases, "as applied to army," and as j 5 3 "a domestic tact" ............................ \ 669 304 duty ot commander ............................. 6 4 effect of declaration of, military commander supreme power ...... . . .............. . ................. 674 307 military commission under (see Military Commissions) 682 312 phases, in which regarded by War Department ...... 669 304 responsibility of commander ..................... 6 4 territorial limitation ............................. 676 308 to whom and when applicable .................... 5 3 will ot commander ............................. '. ~ 7 , - Material Witness: member ot court as (see Challenges) ................ 171 89 Mayhem: definition of, in what it consists, intent ............. 765 389 Meadows : waste or spoil of, prohibited, Art. 55 ............... 762 383 Medical Officer: on duty when, Art. 38 ........................... 745 365 need not be placed in arrest until trial ............. 93 52 Medical Report: to accompany charges in case of desertion .......... 130 67 Meeting of Courts-martial (see Courts-martial) ......... 153 79 Members of Boards (see Boards) ....................... 525 237 number, and oath of ............................. 525 237 Members of Courts- martial: {1 'S'^ SO 385 179 {69 S7 794 423 challenges to (see Challenges) ................... . 166 86 commissioned officers ................ ............ 133 69 l t ro 70 deliberations, closed sessions ................... | 4 QQ 184 60S INDEX PAR. PAGE Members of Courts-martial (continued) : detail ot, determined by convening authority (see Con- vening Authority) ............................. 137 71 eligibility of (see Courts-martial) ............... | ^ 26 liable to suit for damages tor illegal punishment awarded ..................................... 30 15 marine corps as, Art. 122 ...................... | 1|4 ^70 militia as ....................................... 134 70 new member added to court, to take oath ........... 791 422 number, quorum .............................. { ^ J| oath of, by whom administered ................... 791 421 performance ot other duties ...................... 146 74 president, authority and duties of ................ 141 72 rank of, as to accused ........................... | J^j relief ot (see Quorum) ............................. 145 74 to be sworn in each particular case .................. 791 422 volunteers as .................................... 134 70 voting, order of ................................. 802 426 witnesses ................. ...................... 171 89 Members of Court of Inquiry: number ot ...................................... 461 213 oath ot (see Courts of Inquiry) .................... 824 436 Military Academy: general courts-martial for cadets .................. 44 23 power of Superintendent as convening and reviewing authority .................................... 44 23 professors, cadets, detachments, and band part of the army = ....................................... 706 324 protessors eligible for detail on courts ..... . ........ 48 25 regulations tor, force of ........................... 15 9 summary dismissal of cadets for hazing ............ 336 161 Military Boards (see Boards) ........................ { ^ 237 Military Code of the United States: history ot, whence derived ........................ 8 5 Military Commissions: are tribunals recognized as belonging to laws of war ......................................... 26 13 authorized by laws of war, in military government and under martial law ............................. 682 312 civilians may be tried by, under martial law ......... 682 312 composition of, recorder ......................... 684 313 constitution, by what authority ................... 683 312 disposition of records of .......................... 422 193 judgments not effective till approved ............. 687 314 jurisdiction, where exercised, over what classes of offenses .................................. 685 313 INDEX 609 Military Commissions (continued) : legally approved judgments not subject to review by civil courts except on questions ol jurisdiction 687 314 may try civilians undei martial law 671 305 m *yfysp { 8 i 448 no jurisdiction in civil suits, etc 685 313 no jurisdiction to try civilian where Federal courts are in exercise ol powers. . 685 314 procedure similar to courts-martial 686 314 recognized by statute and by decisions ol courts 682 312 tribunals organized under the laws of war and martial law 32 17 Military Force in Enforcement of Law (see Employment ol Troops to Enforce the Laws) 688 315 Military Government: all functions or government united in the commander. 661 300 authority of commander begins with fact of occupa- tion 662 300 commander amenable to his own country only 665 302 commander exercises both civil and military rule 663 301 commander liable for torts, when and where 665 302 commander not liable for acts authorized by his gov- ernment 665 303 commander, power to make and enforce laws and to continue or to appoint officials 663 301 commander presumed to make proper use of author- ity 666 303 commander represents executive power of nation. . . . 661 300 commander's power limited only by laws of war and of his country 662 300 commander's responsibility in discretional matters . . . 666 303 continues after peace till Congress acts 667 303 defined, exists when and where 4 2 has no code, consists of what 6 3 municipal laws, courts, etc., continue in force unless superseded by commander 664 301 powers of commander, how regulated 665 302 responsibility of commander | 5^5 302 tribunals under 664 301 what constitutes, derives authority from laws of war 660 300 will of commander, how exercised and controlled . . . I ~ \ 665 302 Military Governor (see Military Government) 660 300 Military Jurisdiction: defined, to whom applicable 2 1 includes what 2 2 Military Law: army regulations, orders, etc 11 6 Articles of War 8 5 610 INDEX Military Law (continued): consists of what in the United States 7 5 customs and precedents 19 10 defined 3 2 of what composed 6 3 proper use of term 3 2 usages 20 11 Military Occupation (see Military Government): test oi 662 301 Military Offenses: character ot criminal 54 29 statutory 266 123 when purely military 317 151 f 26 13 jurisdiction over, statutory { 54 29 I 57 31 punishments of (see Punishments). - statute of limitation, Art. 103 810 429 territory of, does not affect jurisdiction < l oo zy Military Prison: character of offenses involving sentence thereto 317 151 Fort Leavenworth (note) 317 152 Military Prisoners: place of imprisonment (see Sentence; Punishment).. 317 151 subject to Articles of War, and other laws 64 33 Military Reservation: jurisdiction over offenses committed on < ^^ ~~ method of securing arrest of military persons on, for offenses against laws of the land , Art. 59 107 57 Military Tribunals: authority for, classified, executive agencies 26 13 composition of courts-martial 46 24 composition of military commissions 684 313 constitution of courts-martial (see Constitution of Courts-martial) 33 18 constitution of military commission (see Military Commissions) 683 312 military commissions < gg 2 ^^ not a part of judicial system 27 13 statutory (see Courts-martial) 26 13 Militia: act organizing, etc.; consists of whom 831 440 called into active service, by whom and when 831 441 conscription, right to exercise 831 443 courts-martial for, to consist of militia officers only 51 26 emergency for call of, quotas, etc., determined by President 831 442 INDEX 611 Militia (continued)- exemption from service in, who exempted .......... 831 441 in State service ................................. 831 443 officers of, eligibility as members ot courts-martial - { j ?Q organization, how called into service, period of ...... 831 441 pay and allowances ot ............................ 831 442 period for which called into service ................ 831 443 powers of President over ......................... 831 440 rank and grade of officers, etc ...................... 831 442 subject to rules, etc., governing regular army when called forth ................................... 831 442 Minor Included Offense (see Finding) .................. 297 141 Minors : decisions of courts as to enlistment, Appendix E ..... 537 enlistment of, and release ......................... 710 327 not void but voidable at option of the United States .................................. 710 327 habeas corpus for release of ........................ 710 327 right of United States to try for desertion paramount to right of parent or guardian ......... : ......... 754 378 subject to charges for fraudulent enlistment ......... 710 327 Misapplication or Misappropriation: of public funds or property, Art. 60 (see Property). . . 767 398 Misbehavior : before the enemy, how exhibited, Art. 42 ........... 749 372 in presence of court-martial, Art. 86 ............... 68 35 Mitigation : definition of ............. ....................... 450 207 executed sentence cannot be mitigated. ... ......... 443 202 exercised by reviewing authority at time of action on sentence ...................................... 450 206 limitation on reviewing authority in death sentence . . 445 203 not pardoning power, but incident to power to order courts and act on sentence ...................... 450 206 of sentence to penitentiary ........................ 451 207 of unexecuted sentences .............. ............ 452 207 plea for, because of non-publication of Articles of War. 835 448 power of , in summary court cases (see Appendix B). j .9^ power vested in reviewing authority ............... 447 206 whence derived ............................ 446 205 punishments susceptible of ....................... 450 207 reviewing authority may mitigate sentence ......... 443 202 reviewing authority may mitigate sentence of dishon- orable discharge with forfeiture .................. 454 208 sentence of dismissal of an officer not subject to ...... 445 203 Modification of Charges (see Charges and Specifications) . . 126 65 Money Accounts (see Arts. 8. 60; Returns) .............. 715 332 blank receipts ................................... 767 403 612 INDEX PAR. PAGE Money Accounts (continued): false vouchers , . . . . 767 400 short payments 767 402 Motive to Commit Crime 651 295 Murder : corpus delicti to be first proved 765 393 definition of, includes malice aforethought 765 392 malice aforethought essential to the crime, how estab- lished 765 393 no degrees of the crime in United States Statutes. . . 765 393 penalty for, when committed within exclusive jurisdic- tion of United States 765 393 period within which death must result 765 392 place of jurisdiction over act 765 392 Muster : absent officers and men to be certified 719 335 defined, how made, false muster 712 330 penalty for taking pay, etc., for 713 331 rolls for 712 330 Mutiny : beginning, exciting, or joining in, Art. 22 < Z~J ?cn I / zy oou defined, penalty for 729 348 duty to inform of, Art. 23 730 350 force used in quelling 730 351 suppression of { * 350 Neglects : under 62d Art. of War, what constitute; when charge- able 769 412 New Members: courts-martial : / 2jj ^ New Trial: when granted and by whom 200 102 Nolle Prosequi: definition of, and effect 210 106 who may enter, in military trials 211 106 Non-commissioned Officer : not to connive at the hiring of duty (see Enlisted A f en) 744 363 reduction of, authorized in certain cases. Appendix D. 491 to report deserter enlisted in another regiment 757 380 Oath: affirmation may take the place of 615 279 boards, of members and recorder 528 238 f CQQ OOO witnesses before (see Appendix C < jjg INDEX 613 PAR. PAGE Oath (continued) : boards of examination for promotion, of members and recorder ..................................... 517 234 of witnesses before, examination of, the same as in retiring boards .................... 520 235 courts-martial, of judge-advocate, Art. 85 .......... 174 91 of judge-advocate as witness, administered by president of court ....................... 233 117 of members, Art. 84 ....................... 174 90 administered by judge-advocate ...... 791 421 new members .to take ...................... 791 422 of witnesses, administered by judge-advocate. 238 118 courts of inquiry, of members and recorder of witnesses before ........................ 470 216 enlistment, Art. 2 ............................... 709 325 of interpreter .................................. 165 84 of reporter ..................................... 162 83 retiring board, of members and recorder. . . . witnesses before .......................... 504 230 voir dire of member of court-martial challenged ____ of witness ................. . .............. 237 118 witness making deposition, administered by whom. . 256 124 Oaths: profane, use of, prohibited ........................ 760 382 Obedience to Orders (see Orders), Objection to Members (see Challenges). Offenses: absence without leave, stoppages on Conviction of . . 353 167 against United States, bail, by whom fixed ......... 840 454 capital, not chargeable under 62d Art. of War ...... 769 411 ( 313 149 I 014 1 en certain, subject to sentence to penitentiary ....... \ ^15 150 [ 316 150 certain, triable by court-martial in time of war ..... 316 150 common law crimes .............................. 265 128 common law crimes, elements necessary to constitute . 265 128 / O^3 C 1 0Q common law crimes include intent and an act . . . < nc o \ 2o8 1 30 death penalty for certain, effective in time of war without approval of President .................. 812 430 intent may or may not be element of statutory crime | ^6 129 necessary in common law crimes ............ 265 128 lesser kindred offense ............................ 297 141 limits of punishment for, by executive order, Appen- dix D ........................................ 484 when not prescribed, Appendix D ........... 492 not specified in other Articles of War, when cognizable under Art. 61 or Art. 62 .................. 54 29 614 INDEX PAR. PAGE Offenses (continued) : penalty of death may be awarded for what . . }? [ 661 159 purely military, not subject to penitentiary 804 427 statute of limitation in regard to 810 429 statutory, intent not necessarily an element in all. . 266 128 Offering Violence: to superior officer, Art. 21 728 344 Office: disqualification for, Arts. 6, 14 . ( Ji? ?oi [ Y^il oou Officers : absent on leave, subject to arrest as any other citizen. 109 58 absent without leave, how charged 739 359 accountable tor property of deceased officer or soldier, responsibility of 834 447 accused of capital crime or offense against citizen, to be delivered up 766 396 acts unbecoming, etc., not necessarily affecting mili- tary service aiiect ly v 768 410 amenable to civil suit in certain cases 116 61 amenable to Territorial laws 766 396 arrest and confinement of | ^2 5 * arrest by civil authority 107 57 arrest, duration of, charges not served 778 416 arrested for official act and held by State authority, action to be taken , 701 321 before board of examination for promotion, finding of incapacity for duty not final 524 236 before retiring board (see Retiring Boards) 486 223 cannot be compelled to testify against himself 506 230 may waive right to be heard 501 228 right to counsel, examination of witnesses, etc. 502 228 behavior at divine service, attendance at 759 381 behavior in quarters and on the march 762 383 board of examination, may challenge members 518 234 commanding companies, etc., accountable to colonel for arms, etc 717 334 commanding guard, to receive and keep prisoners (105 56 and to make report \ 774 414 commanding, not to lay duty or imposition on victuals, etc 725 342 commanding, to aid civil officers in arrest of offenders under his command 107 57 commanding, to certify as to officers and enlisted men absent at muster 719 335 competent to appoint courts-martial may appoint judge-advocate 781 418 composition of board of examination for promotion ... 516 233 conduct unbecoming, etc., acts which constitute . . INDEX 615 PAR. PAGE Officers (continued) . convicted of cowardice or fraud, sentence 807 428 death of, procedure 832 444 deceased, accountability for effects of 834 447 deceased, disposition of body, expense of funeral .... 832 445 deceased, inventory ot public property under his charge 832 444 desertion of 754 378 desertion, may be dropped tor, not entitled to demand trial 754 378 desiiing retirement, to state cause of disability under oath 506 230 disability reported by retiring board as not incident to service 510 231 dismissal, attaches no legal disability except where specifically disqualified 813 432 dismissal, by executive order . . \ 5c [ OOO 1DU dismissal, constructive notice of 813 432 dismissal for cowardice or fraud, sentence 807 428 dismissal of, in time of peace, only by sentence of (806 427 court-martial. . . . \ 813 431 dismissal of, takes effect when 813 431 dismissed, in time of war. may demand trial by court- / 39 21 martial ' \ 66 34 dismissed, may be reappointed 813 432 doing violence to persons bringing provisions, etc., penalty 763 383 dropped for desertion 66 34 dutyasoounsel { JJJJ | found physically disqualified on examination for pro- motion, entitled to grade 524 236 eligible to sit on courts-martial 133 69 entitled to release from arrest, under 70th Article of War, procedure if not released 778 417 evidence of record of court of inquiry on trial of, in- volving penalty of dismissal 828 437 examination for promotion | ^ |~, ^oo forfeiture of pay for absence without leave 739 360 forms of punishment appropriate for 326 156 found drunk on duty, penalty for 745 364 general officer, sentences respecting, to be confirmed / 439 201 by President \ 815 433 in arrest, considered on parole 98 54 entitled to copy of charges 778 416 entitled to release under Article 71, cannot release himself 778 417 not to wear sword, etc 98 54 on honor to keep limits 101 54 penalty for violation of 772 414 status of 96 53 616 INDEX PAR. PAGE Officers (continued): in arrest under charge of guard, not relieved from re- sponsibility of status 100 54 incapacity of, how brought before Secretary of War. . 493 225 in charge of prisoners, duty of 775 415 not to release or suffer them to escape 776 415 in charge of property of deceased officer not an ad- ministrator 832 445 liability for personal contracts; not liable on govern- ment contracts 699 320 liable on contracts for the government, when not war- ranted by law 699 320 limit of arrest and confinement before trial 777 415 lying out of quarters, garrison, or camp 738 358 may be ordered before retiring board, when 492 224 f 47 24 meaning of word in Articles of War { 133 69 1 706 324 meaning of word in Article 24 731 352 medical (see Medical Officers) 93 52 members of courts-martial (see Courts-martial), members of retiring board subject to challenge (see Retiring Boards) 503 229 militia (see Militia Officers): eligibility to sit on courts-martial 134 70 rank and grade of 831 442 misbehavior before the enemy, or abandoning fort, post, etc i 749 372 misbehavior in presence of court-martial 68 35 not liable to criminal prosecution under laws of State for seizing United States property illegally pos- sessed 724 341 not reporting deserter discovered, penalty 757 380 not subject to garnishee for public funds 699 321 not to allow soldier to hire another to do his duty. . . . 744 363 not to appropriate captured property 716 334 not to be tried by juniors in rank if it can be avoided . . < ^j; ^ JQ not to do violence to persons bringing provisions .... 763 383 not to place soldier, incompetent to perform duties as sentinel, on post 746 368 not to release prisoners in his charge 776 415 not to use contemptuous or disrespectful words against the President or other civil authority 726 342 occasioning false alarms, penalty 748 371 of any troops in service of United States, subject to Articles of War 771 414 offering violence to, or disobeying order of superior. . 728 344 of militia, rank after officers of like grade in regular or volunteer forces 831 440 of militia, rank and grade of 831 442 subject to order of President 831 442 of regular forces ineligible to sit on courts-martial for trial of "other forces " > 134 70 INDEX 617 PAR. PAGE Officers (continued) : order placing in arrest includes what, penalty for breach of arrest 97 54 period of confinement before trial limited, Art. 70. . . 106 56 procedure in case of death of 832 444 prosecuted for act done under official authority, how defended 700 321 punishable for permitting drunken man to enter upon duty 745 365 punishments that may be awarded (see Punishments). 326 156 quitting guard, platoon, or division 747 371 recommended to attend divine service 759 381 remedy for continuance in arrest beyond limit of Art. 70 777 415 reparation of wrongs of 736 356 resignation does not separate from service till accept- ance 756 379 responsibility for loss of property, wilfully or through neglect 722 336 retired, eligibility to detail as members of courts- martial 135 70 retired, subject to arrest by military authorities 95 53 retirement of (see Retirement; Retiring Boards). .. . < II? ^93 retirement of, on examination for promotion 515 233 seizure of property of United States illegally in hands of persons not soldiers 724 341 sentence to dismissal, by court convened by command- er of division or separate brigade, to be confirmed by whom 814 432 sentenced to loss of relative rank, not restored thereto on promotion 341 162 status of, of regular army mustered as volunteer 830 439 stoppages against, to be explained, etc 356 168 (337 161 OOO 1 * 1 T3Q 1fi9 808 428 suspended, entitled to quarters 808 429 to be arrested for serious offenses only 93 52 to behave orderly in quarters and on march 762 383 to be tried by general courts-martial only ] 140 72 to permit command to be used as posse comitatus only when 691 317 to repair to place of parade, exercise, etc 740 360 to report discovery of deserter enlisted in another regiment 757 380 to report prisoner committed to his charge 775 415 trial of, by juniors in rank, who determines 140 72 volunteer, commissions of (see Volunteers) 830 438 eligibility to sit on courts-martial 134 70 regular officers as 830 439 wholly retired, status of 510 231 618 LS'DEX PAB. PAGE Officers (continued): who think themselves injured, etc., remedy tor < ' :? ^^ ^ K PAGE Privileged Communications: ot witnesses (see Confidential Communications) ...... 628 285 Privileged Questions: incriminating or degrading (see Criminating Ques- tions) ........................................ 550 248 f ft*^n ^fti State secrets, deliberation of boards, courts, etc. . . . < g^i 907 Proceedings (see Courts-martial; Record). . Process : service of, at military post located in a Territory . . . . ~JJ service of, on reservation, jurisdiction ceded by State. .114 60 service of, on military reservation, jurisdiction not ceded by State ................................ 113 59 Proclamation : by President to insurgents to disperse, not a declara- tion of martial law ............................. 678 308 by President to insurgents to disperse, to contain limit of time ....................................... 694 319 Profanity : profane oaths prohibited .......................... 760 382 Professors of Military Academy: eligibility as members of courts-martial ............. 48 25 subject to rules and articles of war ................. 706 324 Prohibition, Writ of: issued by some State courts to militia courts-martial. . 458 21 1 United States courts, right to issue to courts-martial not decided ................................... 458 210 when court-martial has jurisdiction, not issuable, ob- ject of writ ................................... 458 210 Prosecution : conducted by judge-advocate (see Judge-advocate) (iff 73 Prosecutor : (see Accuser or Prosecutor) .................. 779 417 Protection : to persons and property. Art. 54 ............... .... 531 239 Provoking Speeches: forbidden, Art. 25 ............................... 732 352 Provost Courts (see Military Government) ............... 664 301 Public Documents (see Documents) ..................... 557 251 Public Funds: responsibility for, Art. 60 ......................... 767 398 statutes relating to care and disbursement of ........ 767 408 Public Officers: evidence of appointment ......................... 571 258 presumption as to proper use of authority .......... 666 303 Public Property: accountability for, arms, etc ...................... 717 334 accountability for, money or other property, Art. 60. . 767 398 INDEX 625 PAR. PAGE Public Property (continued) : arms and property ot troops to be accounted for, loss of ........................................... 717 334 captured or abandoned property ................... 716 334 retaining or trading, in, forbidden ........... 838 450 captured, to be disposed oi by Congress ............ 716 334 commanding officer to inspect and to be responsible tor, when ordered destroyed by surveying officer. . . 38 242 damaged, affidavits to be submitted to surveying J 537 241 officer ................................... \ 540 243 damaged, evidence to be submitted to surveying officer. . ...................................... 541 243 destroyed, on recommendation ot surveying officer. when ........................................ ' 537 241 disposition ot, found under search warrant .......... 839 454 illegal conversion of .............................. 767 403 inventory of, in hands of deceased officer ........... 832 444 misappropriation of, purchasing or receiving in f 767 399 pledge ...................................... \ 767 407 penalty tor loss of, through neglect, etc., by an officer. . 722 336 penalty for receiving stolen, within jurisdiction of United States ................................. 767 407 power to condemn, in whom vested ................ 542 244 report of survey of, in case of desertion ............. 546 245 report of surveying officer, by whom approved ...... 544 244 report of surveying officer, disposition of ........... 545 245 retu f .................... -{ 767 398 seizure, under search warrant ..................... 839 452 surveying officer, by whom designated ............. 539 242 surveying officer, no power to condemn. . .......... 542 243 procedure of .............................. 540 243 surveys on, purpose of ........................... 537 241 what constitutes "neglect," etc., by officers, in loss of property. . . .................................. 722 337 Punishment : ball and chain, when awarded ..................... 347 164 bread -and-water diet (see Appendix D) classification of, mandatory, discretionary .......... 325 155 death, mandatory for forcing safeguard ............ 330 157 sentence, not to designate time and place ..... 329 157 when awarded, how executed. . . ....... ..... 328 157 deprivation of certificate of eligibility for appointment as 2d lieutenant ............................... 364 170 dishonorable discharge, authorized in certain cases, Appendix D ................................... 492 dishonorable discharge, awarded to enlisted men only, by general court-martial ........................ 359 168 dishonorable discharge, closes all accounts and re- ^sponsibility, except under Article 60 ............. 360 169 dishonorable discharge, effect of , separation from serv- ice .. .............. 359 168 626 INDEX PAR. PAGE Punishment (continued) : dishonorable discharge, tor two or more offenses, none so punishable in itself 361 169 dishonorable discharge, relieves irom charge ot pre- vious desertion, etc 360 169 dishonorable discharge takes effect when 359 169 discretionary with court, within limits established by executive order 325 155 executive order establishing limits o., Appendix D. . . 484 fine (see Fines) 350 165 for embezzlement, misappropriation *ot public funds, ialse returns 837 450 forfeiture (see Forfeiture) 351 165 forms of, appropriate for officers 326 156 appropriate for enlisted men 327 156 ( 367 171 prohibited (see Art. 98) { 368 171 I 369 171 for receiving, concealing, or retaining property of United States 767 406 for unauthorized trade with State in rebellion 837 450 hard labor 345 163 imprisonment after expiration of term of service (see Imprisonment) 348 164 imprisonment of officers, only on conviction of serious crimes 342 163 in penitentiary, subject to rules thereof 345 163 law under which President prescribes limits of 325 155 limitations of executive order applicable to enlisted men only 304 145 f 302 144 limits of, by executive order (see Appendix D) . . . . < 4 ^ mandatory, cannot be lessened or increased 325 155 maximum and minimum established by civil statute, how affecting courts-martial 765 396 maximum limit under executive order, Appendix D 492 may be pardoned or mitigated by officer ordering court 819 434 object of . 325 155 officer, loss of relative rank or files, effect of, on promo- tion (see Loss of Files) 341 162 officer, suspension from command 339 162 of spies 836 448 power of garrison and regimental courts-martial 81 45 power of general courts-martial (see Jurisdiction). ... 52 28 power of summary court 80 43 previous convictions in connection with (see Previous Convictions) 301 144 reduction in grades, first-class to second-class privates, when ; 363 170 reduction to ranks, for non-commissioned officers . . . 362 170 reprimand, to whom awarded and by whom given. . . 358 168 soldiers discharged and in confinement, subject to. ... 366 170 INDEX 627 PAR. PAGE Pnnishment (continued) : solitary confinement, limit of (see Appendix D) j J* stoppages, not punishments but reimbuisements (see Stoppages) 355 167 substitution ot 365 170 susceptible of mitigation, 450 207 suspension trom command, duty, rank, or pay b37 161 suspension trom command included in suspension from rank 339 162 suspension trom lank, officei loses right to promotion during period ot, but not to quarters 338 162 suspension of pay or allowances 340 162 witnesses letusing to appear and testify before court- martial 72 38 Quarters : absence trom, without leave, Art. 31. . . . , 738 358 behavior in, Art. 55 762 383 false alarms in, Art. 41 748 371 lying out of, Art. 31 738 358 officer suspended from rank, entitled to 808 429 Quorum : {\ 1 A OQQ 518 235 court of inquiry 466 215 general court-martial 782 418 on revision 416 190 to constitute, how secured . . . . 783 418 must be present after all challenges are acted on ..... 389 181 retiring board 503 229 Rank: members of courts-martial 135 70 relative, ot regulars, volunteers, and militia 831 442 suspension from (see Punishment) 338 161 Rape: assault and battery with intent to commit, how proved 765 395 definition of 765 394 penalty for, Art. 58 765 385 Reading over Testimony (see Record) 397 183 Recall of Witnesses: in same case (see Witnesses) 242 120 Receipts (see False Receipts) 767 398 Receiving Stolen Goods | 767 407 Recommendation to Clemency: when and how made 378 175 Record : of boards, by whom and how made, how authenticated 530 238 board of examination for promotion 524 236 INDEX PAR. PAGE Record of Courts=martial : accused entitled to copy | ^i 435 action on, by reviewing authority, not to be delegated. 39 20 adjournment, stated and authenticated . . . . 411 187 appendices, how marked and referred to 385 179 approval by reviewing authority 428 195 arraignment must be shown 391 181 authenticated by judge-advocate and president of] 152 79 court \ 381 178 authority tor absent members appended to 385 179 cannot be corrected after court is dissolved 419 192 challenge, must show opportunity for, by accused. . . 387 180 challenge sustained, must show member of court withdraws, and quorum remaining 389 181 changes in membership, shown in 386 180 charges and specifications entered in full 391 181 { 292 139 closed sessions shown \ 405 185 ( 406 186 communications concerning, to Judge-Advocate-Gen- eral 424 193 complete history of organization and proceedings. ... 380 177 convening order and modifications entered in ....;. 384 179 court responsible for 409 187 daily, signed by judge-advocate. 381 178 destruction or loss of 414 189 f 36 19 disposition of, general -| 422 193 L 820 434 garrison or regimental court j 42 6 194 { 413 1 8Q summary court | 427 ^ documents submitted, to be attached to 403 184 erasures or interlineations in 417 191 examination and cross-examination of witnesses, how recorded 397 182 finding and sentence, written by judge-advocate .... 382 178 finding, how made and recorded 405 185 { 75 41 form for garrison court-martial (see Appendix E). . \ 420 192 1 516 form for general court-martial, Appendix E 504 form for general court-martial on revision, Appen- dix E 512 form for regimental court-martial (see Appendix E) | ^g 80 44 form for summary court (see Appendix E) \ 421 192 [ 514 how and to whom forwarded, general courts 412 188 inferior courts 413 189 how corrected on revision 415 190 INDEX 629 PAR. PAGE Record of Courts-martial (continued) : how headed, must show order for court, etc ......... 384 179 inferior courts, custodians of, judge-advocates of de- partments .................................... 425 194 inferior courts, destroyed when .................... 427 194 judge-advocate to make full and accurate ............ 151 78 to forward proceedings to reviewing authority. 820 434 lost, effect of loss before, or after, action of reviewing authority ..................................... 414 189 matter irrelevant or unimportant .................. 403 185 must show all questions and answers of challenged member on voir dire ........................... 388 180 must show arraignment and pleas in full ............ 391 181 must show date and place of meeting, and members present and absent ............................ 385 179 must show facts giving jurisdiction. . . must show opportunity of accused to challenge ..... 795 423 must show previous convictions, if submitted, with copies attached ................................ 406 186 must show that members and judge-advocate were duly sworn in presence of accused ............... 390 181 number of times directed revised, not limited ....... 419 192 papers accompanying ............................ 412 188 papers received with charges, not attached, to be re- turned with ................................... 410 187 papers submitted to court, and not received, to be re- ferred to ............................. ........ 403 185 pleas to general issue, how recorded ................ 393 181 questions of judge-advocate and answers, how re- corded ....................................... 397 182 questions of member objected to, how recorded ..... 401 184 recess, how noted ................................ 311 188 ( ^378 17^ recommendation to clemency, appended to ....... I 41Q ^ reconvening after daily adjournments .............. 311 188 reply of judge-advocate, to be contained in or appended to ........................................... 404 185 revision, appended to original record ............... 418 192 revision proceedings, how made ................... 415 189 must show, what .......................... 416 190 revision, original record not to be altered ........... 417 191 space left for reviewing officer ..................... 409 187 states when prosecution rests ..................... 397 183 to contain entire proceedings in case of witness testify- ing on voir dire ................................ 237 1 18 to contain questions to witnesses and answers in full. . 240 119 to contain verbal statement if made, or written state- ment appended ................................ 402 184 to show accused sworn "at his own request " ....... 399 183 ,. f 406 186 to show adjournment .......................... j 4H jgg to <5howall objections, answers, and interlocutory mat- ters, and actions thereon ....................... 400 183 630 INDEX PAR. PAOE Record of Courts-martial (continued) : to show all testimony in words of witness 394 182 to show changes in membership ot court 386 180 to show court and judge-advocate sworn before ar- raignment of accused 393 182 to show court cloted to consider previous convictions . . 406 186 to show introduction of accused, counsel, etc 387 180 to show name, xank. and station ot witnesses, and identification of accused 396 182 to show quorum remaining after all challenges are acted upon 389 181 to show reading of order to accused and opportunity to challenge 387 180 to show witnesses were duly sworn 395 182 to state ground of challenge and reply thereto 388 180 written in ink or on typewriter 382 178 Record of Court of Inquiry (see Courts of Inquiry): to whom delivered 827 437 Record of Retiring Board: form of (see Retiring Boards), Appendix E 519 Record of Surveying Officer: approval, confirmation, and disposition of 544 244 Recorder : board of examination of officer for promotion 516 233 board of examination, swears witnesses before 521 236 courts of inquiry, duties of | g 2 y 437 oath of 824 436 military board for investigation, authorized to admin- ister oath to witnesses, Appendix C 483 military commissions 684 313 retiring board, duties of 499 227 oath of 504 229 not a member 489 224 Redirect Examination: of witnesses (see Witnesses) 241 120 Redress of Wrongs (see Arts. 29, 30) { ^ 357 Reduction : non-commissioned officers, Appendix D first-class privates to second class, Appendix D 492 Regimental Court-martial (see Courts-martial) : authority for 26 composition of, Art 82 77 42 convened by chief of engineers 77 42 convened by chief of ordnance 77 42 convened by chief signal officer 77 42 . , f 425 194 disposition of record ot | 426 194 form of record of, Appendix E 518 organization and jurisdiction. | gj 45 INDEX 631 PAH. tAGE Regimental Court-martial (continued): record, to whom forwarded , 413 189 when to be convened 78 42 Regimental Court for Doing Justice (Art. 43). appeal from 89 48 authority tor composition, oigamzat ion and powers | ^ by whom convened 77 42 membership limited to members of regimental organ- ization 88 48 proceedings, etc., submitted to reviewing authority . . 89 48 remedies applied by whom | statute ot limitations not applicable to 191 99 {12 7 13 8 Regulations, Departmental (see Departmental Regulations) . authority for 14 8 Regulations, U. S. Military Academy (see Military Academy) by whom issued 15 9 Relation of Military Persons to Civil Authority: amenable to local courts ot a Territory 695 319 living on government reservation exempt from taxes, but excluded from privileges; not liable to jury ser- vice or local process 704 322 method ot arrest for offenses against civil law 698 320 military subordinate to civil authority in time ot peace 695 319 offenses committed within limits of territory ceded by State. 696 319 officer arrested by State authority, for official act, action to be taken 701 321 officer liable for personal contracts, but not for those of government 699 320 officer not subject to garnishee for public funds held . . 699 321 officer prosecuted for an act done under official au- thority, how defended 700 321 personal property, when not under United States juris- diction , taxable . except used in official capacity 703 322 soldier exempt from arrest on mesne process or lor debt, when 697 319 subject to civil suits on contracts, debts, etc 695 319 taxation of officers, what may be taxed 702 321 taxation, post exchange not liable to 703 322 Release : trom arrest or confinement of enlisted men . . . . < --o [ 773 414 f 93 52 of officers \ 777 415 I 778 416 of prisoners, Art. 69 776 415 632 INDEX PAR. PAGE Relevancy of Evidence (see Evidence) .................. 607 276 Relieving the Enemy (see Enemy): prohibited, Art. 45 ............................... 752 374 Remarks of Court=martial in connection with Finding. . 300 143 reviewing authority .............................. 434 198 Remission (see Pardon): action of, after punishment awarded ............... 452 207 definition, effect of ............................... 449 206 included in power to pardon ...................... 448 206 may be made by successor to command ............. 452 208 of unexecuted sentences .......................... 452 207 power of, may be employed so long as material re- mains for its exercise ........................... 452 207 Reparation : injuries to person or property, Art. 54 .............. 531 239 Reply of Judge=advocate ............................. 291 137 Report : of officer in charge of prisoner. Art. 68 ......... : . . . 105 56 Reporter : court-martial, application and authority for , duties of . 163 83 form for accounts of, Appendix E ........... 533 oath ot ................................... 162 83 pay of, etc .......................... (note) 163 84 court ot inquiry, authority tor, pay of .............. 465 215 retiring board, how secured, duties, payment ot, etc. ... 499 227 Reprimand : for light offenses, by whom administered ........... 358 168 Reproachful Speeches: prohibited, Art. 25 ............................... 732 352 Reputation : general, of witness (see Impeachment) ............. 641 291 Requisitions (see Laws of Wai): by whom made in time of war .................... 658 299 Res Gestse (see Evidence): admitted as evidence, when ....................... 580 261 definition of .................................... 579 260 Responsibility for Property (see Public Property). Retainers to Camp: amenability to military law, who included in term, Art. 63 ....................................... 770 413 Retreat: repair to quarters at, Art. 35 ...................... 742 362 Retired Officers: r AQ 05 assignment to active duty, when ' salary not taxable ............................... 703 322 status as to holding public office, etc ............... 481 220 subject to arrest by military authorities ............ 95 53 INDEX 633 PAR. PAGE Retirement (see Retiring Boards): authority for 479 220 board of, examination tor promotion, conclusions con- fidential, right of officer to be present 522 236 by law, action of retiring board not required, when . . . 485 223 by law at sixty-four years of age 482 222 by President, after forty-five years of service, or at sixty-two years of age 483 222 by retiring board, when 486 223 officer before board of examination for promotion, effect of approval of action of board 524 236 officer before board of examination for promotion, evi- dence before 521 235 officers before board of examination for promotion, may challenge members 518 234 officer before board of examination for promotion, procedure of board, finding, etc 519 235 officer on examination for promotion, physical fitness determined by full board 523 236 of officers, provision of law for, effect of 479 220 on examination for promotion, composition, and con- stitution of examining board 516 233 on examination for promotion, regulations for 515 233 on examination for promotion, right of officer to examine witnesses, when 520 235 retired officers, unless wholly retired, remain part of the army (see Retired Officers) 480 220 service as cadet counted tor 484 223 under law, on application atter thirty years; and after forty years 482 222 Retiring Boards: authority tor, composition and constitution 487 22$ authority to receive testimony of witnesses, deposi- tions, etc 494 225 cannot compel officer to testify against himself 506 230* closed session 509 231 composition and constitution 487 223 documentary evidence before 507 230 duties of recorder, reporter for 499 227 finding conclusive as to fact on legal approval; ineffec- tive until approved 512 232 finding of facts not to be modified or changed by reviewing authority 513 232 finding, when and how made, recommendation 509 231 form for proceedings of, Appendix E 519* incapacity not result of incident of service 510 231 inquire into physical or mental incapacity only 498 227 may modify findings or decision 510 232 medical officer's report in writing 505 230 medical officers to testify 507 230 members and recorder designated by the Secretary ot War 489 224 members and recorder duly sworn, oath of 504 229 members subject to challenge. . . .- 503 229 634 INDEX PAR. PAGE Retiring Boards (continued} : membership necessary to constitute legal board ..... 488 223 not affected by statute of limitations ............... 503 230 objection to admission of improper evidence ........ 10 / 230 officer before, entitled to counsel, to examine witnesses, etc .......................................... 502 228 officer desiring retirement to state cause ot disabili.y under oath ................................... 506 230 procedure of .................................... 500 228 ( 4Q1 994 purpose and powers quorum ........................................ 503 229 rank ot members determined by convening authority . 490 224 record, how made, authenticated, and transmitted / 511 232 (see Appendix E) ........................... [ 519 recorder not a member, duties of .................. 489 224 revision of proceedings ........................... 514 233 right of officer to be heard ........................ 501 228 to ascertain it incapacity is an incident of service .... 496 226 to ascertain nature and extent of disability ......... 495 225 to ascertain whether incapacity is due to contributory negligence .................................... 497 227 when to be convened ............................. 492 224 witnesses before, oath of .......................... 504 230 Returns (see Public Property; False Returns). classes of, definition .............................. 714 332 of property to be sustained by vouchers (see Art. 60). . 715 332 of service of subpoenas (see Appendix E) ......... j of state of command, by whom made ............ \ -,+ r ooo to writ of habeas corpus for discharge of minor (see J 710 327 Appendix E) ............................... 1 537 to writ of habeas corpus for enlisted man or general prisoner, issued by State Court .................. 229 114 to writ of habeas corpus for enlisted man or general prisoner, issued by United States Court ........... 228 113 to writ of habeas corpus issued by State Court, form of, Appendix E .................................. 536 to writ of habeas corpus issued by United States Court, form of, Appendix E ........................... 534 to writ of habeas corpus, instructions as to, Appendix E. 536 Reviewing Authority: absence of, from department or division ............ 429 196 action necessary on proceedings of courts-martial. . . . 428 195 action necessary to give life to sentence ............ 433 ' 197 action of, may be with or without comment ......... 434 198 action of President may be authenticated by signature of Secretary of War ............................ 438 200 action on cases, in time of war, requiring confirmation of superior authority ........................... 437 199 action published in general or special orders, in what cases. . . 435 199 INDEX 635 PAR. PAGE Reviewing Authority (continued') : action to be personally endorsed on and form part of record 434 198 approval of record by 381 178 f 428 195 approval of sentence J ,~~ I io" o.yo I 811 430 I cadets tried by court-martial, action to be confirmed in what cases 442 202 f 3^4 i fin cannot commute sentence ]:? Ang cannot delegate power 431 197 cannot pardon or mitigate sentence of death or dis- missal 445 203 cannot increase punishment awarded 432 197 confirmation of action by President, how authenti- cated 438 200 confirmation of action by superior other than Presi- dent, required when 440 201 department merged or post abandoned 431 197 designates time and place of death sentence 329 157 disapproval of, nullifies sentence 433 198 executes sentence of reprimand 358 168 execution of sentence by 436 199 liable to civil suit for damages when he executes illegal punishment awarded 30 15 may approve part and disapprove other parts of record 432 197 may approve so much as is legal, of sentence in excess of law 322 153 may disapprove record for irregularity as well as illegality 444 203 may mitigate sentence to penitentiary 443 202 may pardon or mitigate a sentence, but not commute it. 443 202 may reconvene court for revision of record 432 197 may suspend sentence, when 445 203 must state date of action on record 434 198 not controlled in his action by superior 444 203 not limited as to return of proceedings for revision. .. 419 192 not required to give reasons tor his action, except on returning for revision 444 202 officers authorized as, in time of war 430 196 officers designated by law as 428 195 order promulgating action on proceedings 434 198 power to pardon or mitigate punishment | 81 ^ ^^ rank cf 428 196 sentences approved, cases requiring confirmation of President 437 199 sentences, approved in time of war requiring confir- mation by superior authority 440 201 sentence of dismissal to be confirmed by general com- manding, when 441 201 636 INDEX PAR. t-AGR Reviewing Authority (continued} : the President as 36 19 to state his decision and orders at end of each case.. . 428 195 Revision Proceedings: accused, presence of, at 416 190 case not to be reopened by calling witnesses 418 192 changes and corrections wholly within discretion of court 419 192 not a "second trial " 809 429 record, separate, to be appended to original record. . . 418 192 Revision of Record (see Record): may be ordered by reviewing authority 415 189 omission corrected must be one of fact 417 191 original record not altered 417 191 quorum for 416 190 Reward : for deserters 754 376 how paid, when not stopped against soldier. . . 754 377 Riot: reparation for damage by, of soldier, Art. 54 761 382 Robbery (see Art. 58) : definition of, punishment for, intent in, Art. 58 765 386 Rules of Evidence (see Evidence) : controlling courts-martial 547 246 Rules Governing Accounts of Civilian Witnesses : Appendix E 530 Safeguard (see Art. 57) : definition of, penalty for forcing 764 384 Search Warrant (see Warrant) 724 341 Second Trials: forbidden, Art. 102 809 429 Sedition : defined, Art. 22 729 350 penalty for beginning, exciting, or joining in 729 348 Sentences : addition to, cannot be made by reviewing authority. . 432 197 approved by reviewing authority before executed. ... 811 430 authority for execution of 443 202 based on laws of United States, State, etc., when. . . . 314 150 { 329 157 capital, execution of \ 436 199 L 437 199 suspension of 445 203 certain offenses in time of war, etc 316 150 commutation of (see Commutation) 453 208 confirmation and execution by order of officer ordering court, in what cases 816 433 conviction of cowardice or fraud 807 428 date sentence takes effect 318 152 INDEX 637 PAR. PAGE Sentences (continued): death, approval and confirmation of. in time of war, ] 437 199 by whom \ 812 430 approved, lequiring confirmation by superior authority. . .... 436 1S9 how voted on 375 174 in time of peace to be confirmed by President. . 437 200 mandatory, for forcing safeguard 330 157 not subject to mitigation suspended, when 818 434 vote required for 312 149 discharge to precede confinement when both given. .321 153 discretionary.. .{ } dishonorable discharge cannot be commuted by military commander except forfeiture is included in. 454 208 may be commuted by President 334 160 should precede imprisonment when both given .. 343 163 with forfeiture may be mitigated 454 208 dismissal, applicable only to officers or cadets 332 159 duly approved, requiring confirmation of supe- rior authority 436 199 for cowardice or fraud, publication of sentence. 807 428 how commuted 334 1 60 in time of peace to be confirmed by President . 438 200 in time of war, approval of, by whom con- firmed 437 200 legal effect of 333 160 I QOO 1 KQ mandatory for certain offenses j 33 2 ]60 may be commuted by the President 334 160 not subject to mitigation by military com- I 334 160 mander, but by President \ 445 203 of officer under Article 61 768 410 should precede imprisonment when both are awarded 343 163 suspended, when 818 434 duty of court to vote on 373 174 duty of reviewing authority to execute 310 148 exceeding legal limit 322 153 f 310 148 execution of (see Punishment) : . ( 436 199 L 816 433 extending beyond period of enlistment 320 153 fines, accrue to United States (see Fines) 354 167 forfeitures, amount to be specifically stated in 340 162 construction of, in (see Forfeitures) 351 166 forms for. Appendix E 522 special orders promulgating Appendix E 534 for purely military offense where executed 317 151 ground for disapproval of 170 88 ha-dlabor { ]g 638 INDEX PAR. PACK Sentences (continued) : how voted on ................................... 311 1 48 imprisonment, term ot, to be specified in ........... 343 163 in excess ot law so much as is legal may be approved . 322 153 jurisdiction ot court-martial over .................. 310 148 legally confirmed and executed by officer ordering court, not subject to review by President. , . ...... 816 433 limitation ot, tor certain offenses in time ot wai ..... 316 151 f 310 148 mnnHatnrv J <^0 1^7 mandatory .................................... j 332 16& I 836 448 manner of selecting, when discretionary ............ 311 148 month or months, meaning ot, in .................. 319 152 not less, but may be greater than prescribed bystat- \ 316 150 utes, when .................................. ( 313 150 pardon and mitigation ot ......................... 446 205 ( 313 149 penitentiary when authorized ................... \ 344 163 I 804 426 power to commute cannot be exercised by military commander .................................... 334 160 reconsideration ot. . . ............................ 324 154 reduction in grade Irom first-class to second-class privates ...................................... 363 170 reduction of non-commissioned officers authorized, and how worded it confinement is included ........... 362 170 remarks ot court in connection with ................ 300 143 respecting any general officer must be confirmed by f 439 201 President. . ................................. I 815 43a silent as to date, begins when ....... . ............. 352 166 stoppages (see Stoppages) ............. ......... { jj]g |g& suspension of, Art. Ill .................... ..... ( ^ ^| to military prison, character ot offense ............. 317 151 to penitentiary tor purely military offenses, not legal . 804 427 f 314 150 to penitentiary, when given, may be mitigated, when { 804 426 I 804 427 to United States penitentiary, when authorized ...... 315 150 when required to be confirmed by superior authority other than President ........................... 440 201 within legal limits, in discretion of court ............ 323 154 Sentinels : allowing or suffering prisoners to escape ............ 776 415 authority and responsibility ...................... 746 367 execution of orders by, torce used by ............. < 74 ^ 3 g^ respect tor, by all persons ........................ 746 367 responsibility and duty of, in charge of prisoners ....... 746 368 INDEX 639 PAR. PAGE Sentinels (continued) : sleeping on post or leaving same, Art. 39 ........... 746 367 sleeping on post, not chaigeable under Article 62 ..... 746 368 Separate Brigade (see Convening Authority). what constitutes ................................. 42 22 Service of Charges (see Charges) 8 66 Service of Process (see Process) \ 114 60 1 129 66 f 113 59 114 60 695 319 Service of Subpoenas (see Subpoenas) 213 - 107 Service of Writ of Attachment (see Attachment tor Witness) 222 111 Signal Corps: regimental courts for 77 42 Signature (see False Signature): . false, counterfeiting, Art. 60 767 402 Soldiers (see Enlisted Men). Solitary Confinement (see Confinement) 369 171 Special Orders (see Oiders). character ot 17 9 form tor promulgation of sentence ot court-martial. Appendix E '. 534 Specifications (see Charges and Specifications). Spies : authority for trial of, includes "all persons " 836 448 definition of, who considered as such (see Courts- martial) 836 448 offense, elements ot, must be caught m the act 836 449 punishment ot, how executed I ? trial of, may be by court-martial or by military com- mission 836 448 Spoil : prohibited, Art. 55 762 383 Standing Mute, Art. 89 (see Pleas) 209 105 State Courts (see Jurisdiction): { 112 59 | AQi O1 Q jurisdiction over military persons -I ~QQ ogn [ 766 397 State Laws: how authenticated and received in evidence 557 252 judicial notice ot 559 253 State Secrets (see Evidence) 631 287 640 INDEX PAR. PAGE Statement : accused may make, in defense ..................... 290 137 appears in, or is appended to, record ........ : ...... 402 184 reply of judge-advocate ................... 404 185 challenged member .............................. 389 181 inconsistent with plea ............................ 208 105 introductory, of judge-advocate ................... 232 116 Statement of Service: lorm of, Appendix E ..... ........................ 503 to accompany charges ............................ 130 67 State Prison (see Penitentiary): confinement in, when authorized, Art. 97 ........... 804 426 { 64 33 Statute of Limitations, Art. 103 ................. . . . . \ 186 96 I 810 429 general statute, absence from jurisdiction, absence, flee- ing from justice, what to be proved .............. 189 98 application of, to offenses ................... 188 97 begins to run, when ........................ 188 97 desertion in time of war .................... 187 97 matter of defense, must be pleaded .......... 187 97 not applicable to court of inquiry not applicable to inferior courts or regimental courts for doing justice, Art. 30 ........... 191 99 not applicable to previous convictions ........ 309 147 not applicable to retiring boards ............. 508 230 offense concealed, no impediment ........... 810 430 plea to be determined by the court and decision not subject to review .................... 190 98 provisions of, apply to Arts. 48, 60, and 71 ____ 810 430 tabular statement ......................... 194 100 waiver of, by plea of guilty, but not by plea of not guilty .............................. 192 99 in cases of desertion, Art. 103 .......... 1 186 96 absence from United States, begins to run I 186 96 when, in time of peace ................. \ 193 99 liability of deserter after expiration of term of enlistment .............................. 755 378 not applicable in time of war or in lace of an enemy ................................. 187 97 Statutes : enacting Articles of War, Appendix A .............. 459 regarding care and disbursement of public funds.. . . < -,~-, ,~g Statutory Offenses (see Crimes). how created, elements ot ......................... 266 129 Statutory Provisions: authority to administer oaths in military investiga- tions ......................................... 529 238 INDEX 641 PAU. PAGE Statutory Provisions (continued) : authority to administer oaths in military investiga- tions, Appendix C 482 denning court-martial offenses, Appendix A 478 tor arrest and imprisonment of offenders against laws of United States 839 451 prohibiting dealing or trade in captured or abandoned property 838 450 prohibiting trade with State in rebellion 837 450 spies, who to be considered as. punishment of 836 448 Stealing (see Larceny). Stoppages : authorized by law, etc., definition of, differ from fines or forfeitures 355 167 entered on muster rolls. . 356 168 f 353 166 for absence without leave ,, \ 355 167 I 754 377 not authorized by Article 17 724 338 officers to be notified of 356 168 reparation for injuries to citizens (see Art. 54) 761 382 responsibility for loss or damage, how determined. . . . 357 168 Striking Superior Officer: penalty for (see Art. 21 ) 728 344 Subornation of Perjury (see Perjury) ... 767 401 Subpoena: affidavit of service. . . . / ^14 108 [ zzz in by whom served, to be served personally 213 107 duces tecum 566 257 f 214 108 for civilian witness \ 215 108 I 220 110 for civilian witness, for deposition 252 122 for military persons 213 108 form for civilian witness, Appendix E 523 form for civilian witness for deposition, Appendix E . 524 form for, duces tecum, civilian witness, Appendix E . . 524 form for military witness, Appendix E 523 return of service, form for, Appendix E 525 Substance of Issue: only need be proved 650 294 Substitution of Punishment (see Punishment) 365 170 Succession to Command, Art. 122 829 437 Summary Court: a court-martial within meaning of appropriation 790 421 act establishing (see Appendix B) { 80 {, 480 approval of sentences . . / L od 46 642 INDEX PAR. PAGE Summary Court (continued) . by whom appointed, not subject to challenge 82 45 composition and constitution (see Courts-martial). . . 80 43 delay in trial of case 85 46 disposition of records and reports of 427 194 establishment of, and functions < i~ 4 o , form of record, Appendix E 514 how and by whom appointed 80 43 jurisdiction { jg *| monthly report of cases (see Appendix B) < , T 5O Text-book of Chemical Arithmetic I2mo, i 25 Whipple's Microscopy of Drinking-water 8vo, 3 50 Wilson's Cyanide Processes i2mo, i 50 Chlorination Process i2mo, i 50 Winton's Microscopy of Vegetable Foods 8vo, 7 50 Wulling's Elementary Course in Inorganic, Pharmaceutical, and Medical Chemistry 12mo> 2 oo CIVIL ENGINEERING. BRIDGES AND ROOFS. HYDRAULICS. MATERIALS OF ENGINEERING. RAILWAY ENGINEERING. Baker's Engineers' Surveying Instruments I2mo, 3 oo Bixby's Graphical Computing Table Paper 19^X24! inches. 25 Breed and Hosmer's Principles and Practice of Surveying 8vo, 3 oo * Burr's Ancient and Modern Engineering and the Isthmian Canal 8vo, 3 50 Comstock's Field Astronomy for Engineers 8vo, 2 50 Crandall's Text-book on Geodesy and Least Squares 8vo, 3 oo Davis's Elevation and Stadia Tables 8vo, i oo Elliott's Engineering for Land Drainage i2mo, i 50 Practical Farm Drainage i2mo, i oo *Fiebeger's Treatise on Civil Engineering 8vo, 5 oo Flemer's Phototopographic Methods and Instruments 8vo, 5 oo Folwell's Sewerage. (Designing and Maintenance.) 8vo, 3 oo Freitag's Architectural Engineering. 2d Edition, Rewritten 8vo, 3 50 French and Ives's Stereotomy 8vo, 2 50 Goodhue's Municipal Improvements I2mo, i 75 Gore's Elements of Geodesy 8vo, 2 50 Hayford's Text-book of Geodetic Astronomy 8vo, 3 oo Bering's Ready Reference Tables (Conversion Factors') i6mo, morocco, 2 50 Howe's Retaining Walls for Earth i2mo, i 25 * Ives's Adjustments of the Engineer's Transit and Level i6mo, Bds. 25 Ives and Hilts's Problems in Surveying i6mo, morocco, i 50 Johnson's (J. B.) Theory and Practice of Surveying Small 8vo, 4 oo Johnson's (L. J.) Statics by Algebraic and Graphic Methods 8vo, 2 oo Laplace's Philosophical Essay on Probabilities. (Truscott and Emory.) . i2mo, 2 oo Mahan's Treatise on Civil Engineering. (1873.) (Wood.) 8vo, 5 oo * Descriptive Geometry 8vo, i 50 Merriman's Elements of Precise Surveying and Geodesy 8vo, 2 50 Merriman and Brooks's Handbook for Surveyors i6mo, morocco, 2 oo Nugent's Plane Surveying 8vo, 3 50 Ogden's Sewer Design I2mo, 2 oo Parsons's Disposal of Municipal Refuse 8vo, 2 oo Patton's Treatise on Civil Engineering 8vo half leather, 7 50 Reed's Topographical Drawing and Sketching 4to, 5 oo Rideal's Sewage and the Bacterial Purification of Sewage .8vo, 4 oo Siebert and Biggin's Modern Stone-cutting and Masonry 8vo, i 50 6 Smith's Manual 01 Topographical Drawing. (McMillan.) 8vo, 2 50 Sondericker's Graphic Statics, with Applications to Trusses, Beams, and Arches. 8vo, 2 oo Taylor and Thompson's Treatise on Concrete, Plain and Reinforced 8vo, 5 oo * Trautwine's Civil Engineer's Pocket-book i6mo, morocco, 5 oo Venable's Garbage Crematories in America 8vo, 2 oo Wait's Engineering and Architectural Jurisprudence 8vo 6 oo Sheep, 6 50 Law of Operations Preliminary to Construction in Engineering and Archi- tecture 8vo, 5 oo Sheep, 5 50 Law of Contracts 8vo, 3 oo Warren's Stereotomy Problems in Stone-cutting 8vo, 2 50 Webb's Problems in the Use and Adjustment of Engineering Instruments. i6mo, morocco, i 25 Wilson's Topographic Surveying 8vo, 3 50 BRIDGES AND ROOFS. Boiler's Practical Treatise on the Construction of Iron Highway Bridges. .8vo, 2 oo * Thames River Bridge 4to, paper, 5 oo Burr's Course on the Stresses in Bridges and Roof Trusses, Arched Ribs, and Suspension Bridges 8vo, 3 50 Burr and Falk's Influence Lines for Bridge and Roof Computations 8vo, 3 oo Design and Construction of Metallic Bridges 8vo 5 oo Du Bois's Mechanics of Engineering. Vol. II Small 4to, 10 oo Foster's Treatise on Wooden Trestle Bridges 4to, 5 oo Fowler's Ordinary Foundations 8vo, 3 50 Greene's Roof Trusses 8vo, i 25 Bridge Trusses 8vo, 2 50 Arches in Wood, Iron, and Stone 8vo 2 50 Howe's Treatise on Arches 8vo, 4 oo Design of Simple Roof -trusses in Wood and Steel 8vo, 2 oo Symmetrical Masonry Arches 8vo, 2 50 Johnson, Bryan, and Turneaure's Theory and Practice in the Designing of Modern Framed Structures Small 410, 10 oo Merriman and Jacoby's Text-book on Roofs and Bridges: Part I. Stresses in Simple Trusses 8vo, 2 50 Part II. Graphic Statics 8vo, 2 50 Part III. Bridge Design 8vo, 2 50 Part IV. Higher Structures 8vo, 2 50 Morison's Memphis Bridge 4to, 10 oo Waddell's De Pontibus, a Pocket-book for Bridge Engineers. . i6mo, morocco, 2 oo * Specifications for Steel Bridges i2mo, 50 Wright's Designing of Draw-spans. Two parts in one volume 8vo, 3 50 HYDRAULICS. Barnes's Ice Formation 8vo, 3 oo Bazin's Experiments upon the Contraction of the Liquid Vein Issuing from an Orifice. (Trautwine.) 8vo, 2 oo Bovey's Treatise on Hydraulics 8vo, 5 oo Church's Mechanics of Engineering 8vo, 6 oo Diagrams of Mean Velocity of Water in Open Channels paper, i 50 Hydraulic Motors 8vo, 2 oo Coffin's Graphical Solution of Hydrr.ulic Problems i6mo, morocco, 2 50 Flather's Dynamometers, and the Measurement of Power I2mo, 3 oo 7 Folwell's Water-supply Engineering 8vo, 4 oo Frizell's Water-power 8vo, 5 oo Fuertes's Water and Public Health i2mo, i 50 Water-filtration Works i2mo, 2 50 Ganguillet and Kutter's General Formula for the Uniform Flow of Water in Rivers and Other Channels. (Hering and Trautwine.) 8vo, 4 oo Hazen's Filtration of Public Water-supply 8vo, 3 oo Hazlehurst's Towers and Tanks for Water- works 8vo, 2 50 Herschel's 115 Experiments on the Carrying Capacity of Large, Riveted, Metal Conduits 8vo, 2 oo Mason's Water-supply. (Considered Principally from a Sanitary Standpoint.) 8vo, 4 oo Merriman's Treatise on Hydraulics 8vo, 5 oo * Michie's Elements of Analytical Mechanics 8vo, 4 oo Schuyler's Reservoirs for Irrigation, Water-power, and Domestic Water- supply Large 8vo , 5 oo * Thomas and Watt's Improvement of Rivers '. 4to, 6 oo Turneaure and Russell's Public Water-supplies 8vo, 5 oo Wegmann's Design and Construction of Dams 4to, 5 oo Water-supply of the City of New York from 1658 to 1895 4to, 10 oo Whipple's Value of Pure Water Large i2mo, i oo Williams and Hazen's Hydraulic Tables 8vo, i 50 Wilson's Irrigation Engineering Small 8vo, 4 oo Wolff's Windmill as a Prime Mover 8vo, 3 oo Wood's Turbines 8vo, 2 50 Elements of Analytical Mechanics 8vo, 3 oo MATERIALS OF ENGINEERING. Baker's Treatise on Masonry Construction 8vo, 5 oo Roads and Pavements 8vo, 5 oo Black's United States Public Works Oblong 4to, 5 oo * Bovey's Strength of Materials and Theory of Structures 8vo, 7 50 Burr's Elasticity and Resistance of the Materials of Engineering 8vo, 7 50 Byrne's Highway Construction 8vo, 5 oo Inspection of the Materials and Workmanship Employed in Construction. i6mo, 3 oo Church's Mechanics of Engineering 8vo, 6 oo Du Bois's Mechanics-of Engineering. Vol. I. Small 4to, 7 So *Eckel's Cements, Limes, and Plasters 8vo, 6 oo Johnson's Materials of Construction Large 8vo, 6 oo Fowler's Ordinary Foundations 8vo, 3 50 Graves's Forest Mensuration 8vo, 4 oo * Greene's Structural Mechanics 8vo, 2 50 Keep's Cast Iron 8vo, 2 50 Lanza's Applied Mechanics 8vo, 7 50 Marten's Handbook on Testing Materials. 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