GIFT OF 
 
 Su.pt. 
 
 
 DOCUMENTS 
 OEPT. 
 
A MANUAL 
 FOR COURTS-MARTIAL 
 
 Revised in the office of the Judge 
 
 Advocate General of the Army and 
 
 published by direction of the 
 
 President 
 
 EFFECTIVE FEBRUARY 4, 1921 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 1920 
 
^> 
 
 DOCUMENTS 
 
 DEPT. 
 
 WAB DEPABTMENT. 
 Document No. 1053. 
 o/ ffte Judge Advocate General, 
 
" Justice ought to bear rule everywhere, and espe- 
 cially in armies; it is the only means to settle order 
 there, and there it ought to be executed with as much 
 exactness as in the best governed cities of the king- 
 dom, if it be intended that the soldiers should be kept 
 in their duty and obedience." The Art of War, by 
 Louis de Gaya, in 1678. (Title page, Glode, Adminis- 
 tration of Justice under Military and Martial Law, 
 1892.) 
 
 The discipline and reputation of the Army are 
 deeply involved in the manner in which military 
 courts are conducted and justice administered. The 
 duties, therefore, that devolve on officers appointed to 
 sit as members of courts-martial are of the most grave 
 and important character. That these duties may be 
 discharged with justice and propriety it is incumbent 
 on all officers to apply themselves diligently to the 
 acquirement of a competent knowledge of military 
 law, to make themselves perfectly acquainted with all 
 orders and regulations, and with the practice of mili- 
 tary courts. Army Regulations, 1835, Article XXXV, 
 paragraph 1. 
 
 m 
 
 '52124 
 
INTRODUCTION. 
 
 This book is a revision of the 1917 edition of the Manual 
 for Courts-Martial, which was prepared in the office of the 
 Judge Advocate General and issued by direction of the Sec- 
 retary of War under date of November 29, 1916, to take 
 effect March 1, 1917, for the purpose of introducing and in- 
 terpreting to the Military Establishment the Articles of 
 War enacted August 29, 1916. The general plan and scope 
 of that Manual have been approved by the service. They 
 are retained in this edition. 
 
 The Articles of "War of 1916 were the outgrowth of long 
 experience and careful study ; but since their enactment the 
 World War has supervened. It would have been strange if 
 the unusual experiences of such a war, where upward of 
 200,000 new officers were commissioned in the service, largely 
 with brief training, and nearly 4,000,000 men were suddenly 
 called into the Army, had not developed some defects in the 
 system of military justice. It was to be expected that the 
 conditions of such an unprecedented World War would show 
 many respects in which the existing code might be improved. 
 Nevertheless, while some defects developed, the system as a 
 whole worked well. A mighty army was quickly dis- 
 ciplined; indeed was raised within a few months to such a 
 high pitch of discipline that, tested at the front, not only 
 did it do its duty magnificently, but the relative number of 
 courts-martial was markedly less than in ordinary peace 
 times. In one respect it made an unexampled record it 
 proved not to be necessary, during the whole war, to carry 
 the death sentence into effect a single time for a purely mili- 
 tary offense. The War Department board created in the 
 spring of 1919, under the presidency of Maj. Gen. Kernan, 
 to examine into the administration of military justice dur- 
 ing the war and make recommendations for its improve- 
 
INTRODUCTION. 
 
 ment, reported (Report of Kernan Board, July IT, 1919. 
 p. 13): 
 
 " In the opinion of this board, the existing court-martial system is 
 fundamentally sound and well calculated to serve successfully the 
 ends for which it was created. It is an evolution representing con- 
 stant change and growth. No claim is made that it is a perfect sys- 
 tem; rather it is definitely admitted that in the light of experience 
 changes may be made now in the direction of improvement. Under it 
 errors in the proceedings, the findings, and in the measure of punish- 
 ment occur from time to time. This has always been so and will 
 always be so in some measure. But this is not peculiar to the court- 
 martial ; it is true of all agencies created and administered by man. 
 Military justice is carried out at all times under great urgency and 
 stress, where the nice deliberation and finish of the civil procedure 
 is utterly impossible." 
 
 Meeting needs as they developed, the War Department, 
 upon the recommendation of the Judge Advocate General, 
 by General Orders, No. T, January IT, 1918, early in the war 
 established a judicial advisory review in the office of the 
 Judge Advocate General (or in a branch office, under an 
 acting judge advocate general in France) of sentences of 
 general courts-martial involving death, dismissal of an offi- 
 cer, or unsuspended dishonorable discharge of an enlisted 
 man; and at the same time recommended to Congress that 
 appellate power to review sentences of general courts-martial 
 be lodged in the President. In March > 1919, the Judge 
 Advocate General recommended consideration of certain 
 changes in the administration of military law ; and, early in 
 April, 1919, submitted to the Secretary of War drafts of 
 general orders and changes in the Manual for Courts-Martial 
 designed to carry into effect the following purposes : 
 
 (a) To prevent the return to a court-martial of a record of trial 
 for reconsideration of an acquittal. 
 
 (6) To prevent courts, at proceedings in revision, from increasing 
 in severity sentences previously adjudged by them. 
 
 (c) To provide for greater care in the preliminary investigation of 
 charges. 
 
 (d) To encourage the use of the power of commanding officers to 
 administer disciplinary punishment under the one hundred and fourth 
 article of war in preference to resort to courts-martial. 
 
 (e) To encourage the reference of cases to inferior courts rather 
 than to general courts-martial. 
 
 VI 
 
INTRODUCTION. 
 
 (/) To definitely require (what had theretofore been the usual 
 practice) the reference of charges to a staff judge advocate before re- 
 ferring them to a general court-martial for trial. 
 
 (0) To definitely require the reference of records of trials by gen- 
 eral courts-martial to a staff judge advocate for advice, before action 
 thereon by a reviewing authority. 
 
 After having been considered by the General Staff, the 
 Chief of Staff, and the Secretary of War, these recommen- 
 dations were embodied an substance in General Orders, No. 
 88, War Department, 1919, and " Changes, Manual for 
 Courts Martial,' 5 No. 5, July 14, 1919. 
 
 All of these purposes were afterwards realized in statutory 
 form in the recent revision of the Articles of War. 
 
 REVISION OF THE ARTICLES OF WAR. 
 
 During the early part of the year 1919 several proposed 
 revisions of the Articles of War were introduced in both 
 Houses of the Sixty-fifth Congress, third session, and re- 
 ferred to the Military Affairs Committees of the Senate and 
 the House of Representatives, respectively, and during the 
 month of February, 1919, hearings were held by the Senate 
 Committee on Military Affairs upon a bill providing for 
 amendments to the Articles of War, which had been intro- 
 duced in the Senate by the chairman of that committee. 
 However, no bill was reported to either the Senate or the 
 House of Representatives during that session of the Con- 
 gress. 
 
 Beginning early in the year 1919, careful consideration 
 and study was given to the whole system of court-martial 
 procedure, with a view to its revision and improvement in 
 the light of experiences of the war. This consideration and 
 study was carried on by the War Department through the 
 special War Department board on " Courts-Martial and 
 Their Procedure," composed of Maj. Gen. Francis J. Ker- 
 nan, U. S. Army, Maj. Gen. John F. O'Ryan, New York 
 National Guard, and Lieut. Col. Hugh W. Ogden, Judge 
 Advocate; by a committee of civilian lawyers appointed by 
 the president of the American Bar Association; and by the 
 Office of the Judge Advocate General, including a special 
 study of the system of military justice in the British, 
 French, and Belgian Armies by an officer detailed for that 
 purpose. Through the courtesy of the various Governments, 
 
 VII 
 
IIH'RODUCTION'. 
 
 statistical and other information relating to the experiences 
 of those armies in administering military justice during the 
 war were thus placed at the disposal of the Judge Advocate 
 General's Office. Particular acknowledgment is due to Sir 
 Felix Cassel, Judge Advocate General of the British Forces ; 
 to M. Edouard Ignace, French Undersecretary of State for 
 Military Justice; and to Gen. Baron van Zuylen van Nye- 
 velt, Auditeur General of the Belgian Army. 
 
 The first session of the Sixty-sixth Congress began on 
 May 19, 1919, and several proposed revisions of the Articles 
 of War were introduced in both Houses of the Congress at 
 that session, and referred to the Military Affairs Commit- 
 tees of the Senate and House of Representatives, respec- 
 tively. 
 
 A subcommittee of the Senate Committee on Military 
 Affairs held very extensive hearings on one of the bills, and 
 went into the subject very fully. Besides the views of a 
 large number of well-informed witnesses, there were pre- 
 sented, for the consideration of the subcommittee, the re- 
 sults of the studies referred to above. 
 
 At the conclusion of those hearings, upon the invitation of 
 the subcommittee of the Senate Committee on Military Af- 
 fairs, a bill providing for a revision of the Articles of War 
 wns prepared and submitted to the subcommittee by the 
 Judge Advocate General. 
 
 That revision, with few changes, was adopted by both 
 the subcommittee and the full Committee on Military Af- 
 fairs of the Senate, and by the Committee on Military Af- 
 fairs of the House of Representatives; was favorably re- 
 ported to both Houses of the Congress by those committees ; 
 and subsequently was enacted into law as Chapter II of the 
 Army Reorganization Act of June 4, 1920 (41 Stat. 787). 
 
 The salient features of the revision are as follows : 
 
 1. Enlisted men are placed on a parity with officers in respect of the 
 right to prefer charges against persons in the military service; but all 
 charges must be verified by affidavit. (A. W. 70.) 
 
 2. The preliminary investigation of charges is made more strict 
 than in the former code; particularly by the new requirement that, 
 at the preliminary investigation, full opportunity shall be given to 
 the accused to cross-examine witnesses who appear against him, if 
 they are available, (A. W. 70.) 
 
 Yin 
 
IISTRODUCTIOIT. 
 
 3. The present regulation (C. M. C. M. No. 5, July 14, 1919, par. 
 76a), which requires that, before directing the trial of a case by 
 general court-martial, the convening 1 authority shall refer the charges 
 presented to his staff judge advocate for consideration and advice, 
 is made mandatory by statute. (A. W. 70, par. 3.) 
 
 4. UnEeeessary delay on the part of an officer in investigating 
 charges or carrying a case to a final conclusion is made an offense 
 punishable by trial by court-martial. (A. W. 70.) 
 
 5. Resort to arrest instead of confinement pending trial in the cases 
 of enlisted: men charged with minor offenses is prescribed instead of 
 merely being authorized. This places enlisted men upon the same 
 footing as officers in respect of such offenses. (A. W. 69.) 
 
 6. Resort to the power of commanding officers to administer dis- 
 ciplinary punishment under the one hundred and fourth article of 
 war, in preference to resort to courts-martial, is encouraged. 
 
 7. The appointment by the convening authority of defense counsel, 
 and one or more assistants, in the same manner in which trial judge 
 advocates and their assistants are appointed, is made mandatory by 
 statute. This places the defense upon the same footing as the prose- 
 cution before the court, but does not prevent the man tried from be- 
 ing represented by his own counsel, if he so desires. (A. W. 11, 17.) 
 
 8. A " law member " is provided for every general court-martial 
 (A. W. 8, par. 2), with power to rule upon all interlocutory ques- 
 tions, except challenges, subject (except as to rulings on the ad- 
 missibility of evidence) to an appeal to the court itself. (A. W. 
 31.) 
 
 9. The requirement (which heretofore has existed by regulation) 
 that every record of trial by a general court-martial or military com- 
 mission shall be referred to a staff judge advocate or to the Judge 
 Advocate General for advice before action thereon by the reviewing 
 or confirming authority, is made mandatory by statute. (A. W. 4(5.) 
 
 10. The words, " in time of peace," are eliminated from the forty- 
 fifth article of war, thus enabling the President to fix the maximum 
 limits of punishment in time of war, as well" as in time of peace. 
 
 11. The prohibition (which heretofore has existed by regulation), 
 against (a), the reconsideration by a court, at proceedings in re- 
 vision, of an acquittal ; a finding of not guilty of any specification ; 
 or a finding of not guilty of any charge, unless the record shows a 
 finding of guilty under a specification laid under that charge, which 
 sufficiently alleges a violation of some article of war; and (6), the 
 adjudication by a court, at proceedings in revision, of a sentence 
 more severe than that previously adjudged by it (unless the sentence 
 previously adjudged was less than the mandatory sentence fixed by- 
 law for the offense or offenses upon which a conviction was had), 
 is made mandatory by statute. (A. W, 40.) 
 
 12. Provision is made for a new trial in proper cases. (A. W. 40, 
 47, 49, 50i.) 
 
INTRODUCTION. 
 
 13. A unanimous vote of the members of the court for death sen- 
 tences, a vote of three-fourths of the members of the court for sen- 
 tences involving confinement for life or for more than 10 years, and 
 a vote of two-thirds of the members of the court for all other sen- 
 tences, is required. (A. W. 43.) 
 
 14. Provision is made for a system of appellate review for all gen- 
 eral court-martial cases. (A. W. 50 .) 
 
 15. Provision is made for greater flexibility in the suspension of 
 sentences. (A. W. 52.) 
 
 Other changes in the interest of better administration 
 and greater flexibility which may be mentioned are: An 
 amendment to Articles of War 5 and 6, removing the maxi- 
 mum limit as to the number of members for general and 
 special courts-martial ; a change in Article of War 18 which 
 allows each side one peremptory challenge (the law member 
 of the court not being subject to challenge, except for 
 cause) ; and a change in nomenclature from " judge advo- 
 cate " to " trial judge advocate," to avoid possible confusion 
 with the staff judge advocate. 
 
 With the exception of Articles 2, 23, and 45, which took 
 effect on June 4, 1920, the date on which the act was ap- 
 proved, the revision will go into effect on February 4, 1921. 
 The provisions of the act which have already become ef- 
 fective are as follows: 
 
 Article 2, " Persons subject to military law," is amended so as 
 to include members of the Army Nurse Corps, warrant officers, 
 Army field clerks, and field clerks Quartermaster Corps. 
 
 Article 23, " Refusal to appear and testify," is amended so as to 
 provide that every person not subject to military law, who before 
 any court-martial, military tribunal, or military board, or in con- 
 nection with, or in relation to any proceedings or investigation before 
 it, is guilty of any of the acts made punishable as offenses against 
 public justice by any provision of chapter 6 of the act of March 4, 
 1909 (35 Stat. 1088 commonly known as the Federal Penal Code), 
 or any amendment thereof, shall be punished as provided therein. 
 
 Article 45, "Maximum limits" (of punishment), is amended so 
 as to enable the President to prescribe the maximum limits of punish- 
 ment for trials by courts-martial in time of war, as well as in time 
 of peace. 
 
 The present revision of the Manual for .Courts-Martial 
 has been prepared primarily to conform the manual to the 
 changes in the Articles of War accomplished by the act of 
 
INTRODUCTION". 
 
 June 4. 1920, and to embody the results of decisions made by 
 the Office of the Judge Advocate General and the War De- 
 partment, and such other changes in the regulations for the 
 government of courts-martial and courts of inquiry as have 
 been approved by experience. The aim is to adhere to the 
 principle observed in drafting the present revision of the 
 Articles of War, viz, to make changes dictated by experi- 
 ence, while at the same time holding fast to ancient prin- 
 ciples that have proven their value. 
 
 The salient changes in the Manual, besides those required 
 to conform to the new Articles of War, are: 
 
 (a) Paragraph 219, procedure in cases of insanity, has been en- 
 tirely rewritten. 
 
 (6) Depositions may be taken on oral, as well as upon written, 
 interrogatories. 
 
 (c) The chapter on evidence has been rewritten. 
 
 (d) More definite provisions have been made concerning the cura- 
 tive effect of the thirty-seventh article of war. 
 
 (e) With a view to reducing the number of court-martial trials, 
 greater stress is laid upon the disciplinary powers of organization 
 commanders ; and 
 
 (f) The appendices have been, in large measure, rewritten, and 
 some new ones added, e. g., Appendix 9, forms for use of the president 
 and the law member of courts-martial. 
 
 For the convenience of the service, the numbering of the 
 paragraphs in the Manual of 1917 has been retained and the 
 paragraph numbers placed at the top of the page, for ready 
 reference. Where additional paragraphs have been neces- 
 sary, they are inserted as extra paragraphs at the proper 
 place (e. g., par. 89a, " Duties of the law member ") ; or, in 
 some instances where it seemed necessary for clarity, with 
 half numbers (e. g., par. 181J, "Depositions on oral inter- 
 rogatories Procedure"). Where paragraphs have been 
 wholly omitted a note to that effect is inserted in small type. 
 (See, e. g., pars. 51 and 54, which are omitted from this re- 
 vision.) 
 
 Changes in the text are indicated by bold-face type. 
 
 This Manual takes effect February 4, 1921, at the same 
 time as the new Articles of War. 
 
 E. H. CROWDER, 
 Judge Advocate General. 
 
 JANUARY 1, 1921. 
 
 XI 
 
Introduction to 1917 Edition. 
 
 This Manual introduces and interprets to the Military 
 Establishment the revised Articles of War which become 
 effective March 1, 1917. The revision supersedes the exist- 
 ing articles, sometimes designated the Code of 1874, and re- 
 peals all other laws and parts of laws inconsistent therewith. 
 It will facilitate an understanding of the scope and effect of 
 the revision to refer to the history and development of the 
 amended Code of 1874, indicate briefly its most serious de- 
 fects, and summarize the principal changes introduced by 
 the revision. 
 
 HISTORY OF UNITED STATES ARTICLES OF WAR PRIOR TO 1916. 
 
 Passing over the earlier enactments of the American Colo- 
 nies of Articles of War for the government of their respective 
 forces, examples of which are found in the articles adopted 
 by the Provisional Congress of Massachusetts Bay, April 5, 
 1775 (Am. Archives, 4th series, vol. 1, p. 1350), and the sim- 
 ilar articles adopted in May and June of that year by the 
 Provincial Assemblies of Connecticut and Rhode Island and 
 the Congress of New Hampshire (idem, vol. 2, pp. 565, 1153, 
 1180), we come (a) to the first American articles enacted by 
 the Second Continental Congress June 30, 1775, and copied 
 largely from the British Code of 1765 and the Massachusetts 
 Code; (&) the Code of 1776, an enlargement and modifica- 
 tion of the Code of 1775; and (c) the supplemental Code of 
 1786, regulating the composition of courts-martial and gen- 
 erally the administration of military justice. The articles 
 in force on the adoption of the Constitution of the United 
 States were, by act of the First Congress, made to apply to 
 the then existing Army " so far as the same are applicable " 
 and were continued in force by successive enactments until 
 April 10, 1806, when, by act of Congress of that date, revised 
 
 xnr 
 
INTRODUCTION TO 1917 EDITION. 
 
 articles, adapted to the changed form of government, were 
 enacted, superseding all other enactments on the same sub- 
 ject. Thus the Code of 1806 was, in effect, a reenactment of 
 the articles in force during and immediately following the 
 period of the Revolutionary War, with only such modifica- 
 tions as were necessary to adapt them to the Constitution of 
 the United States. It comprised 101 articles, with an addi- 
 tional provision relating to spies. During the War of 1812 
 four of the articles of this code were amended, during the 
 Seminole wars three articles were amended and one new arti- 
 cle added, and during the Civil War seventeen articles were 
 amended and eight new articles added. All of these new 
 articles and amendments were gathered into the restatement 
 of the articles which appears in the Revised Statutes of 1874, 
 making a code of 128 articles, with the additional provision 
 relating to spies. Between that year and 1912, when this re- 
 vision was submitted to Congress, the more important amend- 
 ments have been the summary court and maximum punish- 
 ment acts of 1890; the repeal of articles 80 and 110 in 1898; 
 the repeal of article 123 and the amendment of articles 122 
 and 124 in 1910. 
 
 DEFECTS OF ARTICLES PRIOR TO 1916 REVISION. 
 
 The more serious defects of the Code of 1874 were those 
 incident to its development by compilation from a now obso- 
 lete and replaced foreign code, and by piecemeal amendment 
 made during periods of war and under the stress of war con- 
 ditions. Eighty-seven articles of the Code of 1806 survive4 
 in the amended Code of 1874 without change or with only 
 minor changes of style, and most of the remaining articles 
 of that code without substantial change, with the result that 
 the latter code was unscientific in its arrangement and con- 
 tained many provisions either wholly obsolete or illy adapted 
 to present service conditions. We may cite as examples 
 illustrating its archaic character the following of its pro- 
 visions : 
 
 The fifty- fourth and fifty-fifth articles prohibited any kind 
 of riot to the disquieting of " citizens of the United States," 
 and article 59 made mandatory the turning over to a civil 
 
 XJT 
 
INTRODUCTION TO 1917 EDITION. 
 
 magistrate of officers and soldiers accused of an offense 
 against the person or property of any " citizen of the United 
 States," but only " upon application duly made by or in be- 
 half of the party injured," ignoring the more modern doc- 
 trine that all persons residing within the United States are 
 entitled to the equal protection of the laws, and that crimes 
 are now punished, not at the instance of an individual but at 
 the instance of the public. Article 126 regulated adminis- 
 tration upon the effects of deceased soldiers and devolved the 
 duties incident thereto upon the commanding officer of the 
 troop, battery, or company to which the deceased soldier be- 
 longed, but made no provision for similar cases arising 
 among the large class of soldiers who, under the present-day 
 organization, do not belong to troops, batteries, or compa- 
 nies ; and similar instances might be multiplied indefinitely. 
 
 IMPORTANT CHANGES IN REVISION. 
 
 The limits assignable to this introduction permit only the 
 following brief summary of the more important changes in- 
 troduced by the revised articles : 
 
 1. Certain provisions of the Revised Statutes and of the 
 Statutes at Large in the nature of Articles of War, and 
 proper for this reason to be incorporated in a military code, 
 are reenacted in their proper places in the revised articles, 
 and certain other statutes relating to the procedure and prac- 
 tice of the criminal courts of the United States are made the 
 basis of new articles. Examples of legislation incorporated 
 and of new articles suggested are found in revised articles 
 2, 4, 7, 8, 22, 23, 25, 30, 34, 36, 37, 38, 42, 45, 48, 52, 80, 82, 
 106, 107, 108, 112, 114, 117, 118, and 119. 
 
 2. Articles 1, 10, 11, 36, 37, 52, 53, 76, 87, and 101 of the 
 Code of 1874, either wholly obsolete or embracing only 
 matters properly within the field of Army Regulations, have 
 been dropped. 
 
 3. Related provisions have been brought together under 
 five separate headings, and where subheads would serve a 
 useful purpose they have been employed to complete the 
 classification. 
 
 21358 20 ii 
 
 XT 
 
INTRODUCTION TO 1917 EDITION. 
 
 4. Provisions relating to the same subject-matter have been 
 consolidated into a single article. Examples of such consoli- 
 dation may be found in revised article 48, which reenacts 
 with modifications the substantial provisions of four articles 
 of the Code of 1874 and one section of the Revised Statutes, 
 all relating to the confirmation of sentences of courts-martial ; 
 and in revised article 61, which reenacts in brief form the 
 material provisions of six of the existing articles of that code 
 relating to unauthorized absences. 
 
 5. The authority to convene general courts-martial has 
 been extended to include " the commanding officer of any dis- 
 trict or of any force or body of troops" when empowered 
 by the President, thus providing for the case of expedition- 
 ary forces not the equivalent of a brigade or higher unit, 
 and other emergent services, and permitting general court- 
 martial jurisdictions to be multiplied as the exigencies of 
 the service may require. (Art. 8.) 
 
 6. The jurisdiction of the general court-martial is made 
 concurrent with that of the military commission and other 
 war tribunals in the trial of offenses against the laws of war, 
 and further extended to include the capital offenses of mur- 
 der and rape when committed in time of peace at places out- 
 side the geographical limits of the States of the Union and 
 the District of Columbia. (Arts. 12, 15, and 92.) 
 
 7. Authority is granted for the detail of one or more assist- 
 ant trial judge advocates for each general court-martial, 
 with power to act for the judge advocate, thus largely in- 
 creasing the capacity of these courts in the disposition of 
 cases. (Arts. 11 and 116.) 
 
 8. The provision of the Code of 1874 making regular 
 officers incompetent to sit on courts-martial for the trial of 
 officers and soldiers of other forces is abolished, and all dis- 
 tinctions as to eligibility of officers of the several forces 
 for the performance of court-martial duty is removed. 
 (Art. 4.) 
 
 9. A disciplinary court, intermediate between the general 
 and summary court, with adequate power to impose discip- 
 linary punishments but without the power to adjudge dis- 
 honorable discharge, is providtd for the trial of offenses 
 
 XVI 
 
INTRODUCTION TO 1917 EDITION. 
 
 where the retention of the offender with his command, to be 
 disciplined rather than his dishonorable discharge, is con- 
 templated, leaving the general court-martial with its ex- 
 tended jurisdiction to be resorted to in grave cases calling 
 for discipline, dishonorable discharge, or prolonged deten- 
 tion in confinement with or without dishonorable discharge, 
 and the summary court for the trial of minor offenses call- 
 ing for light punishments of confinement and forfeiture. 
 
 10. The power to prescribe the procedure, including modes 
 of proof, in cases before courts-martial and other military 
 tribunals has been expressly delegated to the President. 
 (Art. 38.) 
 
 11. The statute of limitations of the Code of 1874 (art. 
 103, as amended by act of Apr. 11, 1890) fixed a uniform 
 period of two years of liability to trial and punishment by 
 general court-martial (not expressly excepting any capital 
 offenses), to be reckoned from the date of the commission of 
 the offense to the date of the issuing of the order for trial, 
 except in case of peace desertion, when the period was re- 
 quired to be reckoned from the date of expiration of enlist- 
 ment from which the soldier deserted to the date of his 
 arraignment. No period of limitation was presecribed in the 
 case of inferior courts. The new military statute of limita- 
 tions (art. 39) expressly excepts from its operation the capi- 
 tal offenses of desertion committed in time of war, mutiny, 
 and murder, fixes the period of limitation at three years for 
 the graver common law and statutory felonies denounced 
 and punished in revised articles 93 and 94, conforming to the 
 rule governing Federal civil courts with concurrent juris- 
 diction of these offenses ; and the same period for the offense 
 of desertion in time of peace, a study of statistics having 
 shown that few, if any, deserters of this class are arrested 
 after three years from date of desertion. The two-year 
 period of limitation prescribed by the Code- of 1874 is re- 
 tained in the revised articles for all other offenses than those 
 above named, and the uniform rule is established that all 
 these periods shall be reckoned from the date of commission 
 of the offense to the date of arraignment. The new statute 
 covers trials by any court-martial. 
 
 XVII 
 
INTRODUCTION TO 1917 EDITION. 
 
 of the former chapter this office has had the assistance of 
 Prof. Wigmore of the Northwestern University, recently 
 commissioned a major and judge advocate in the Officers' Re- 
 serve Corps. Prof. Wigmore has given liberally of his time 
 in the preparation of this chapter, has lent the authority of 
 his name to what appears therein, and has performed a work 
 of great value for which appreciation will be general 
 throughout the service. In the chapter on " Punitive arti- 
 cles " an effort has been made to meet what is conceived to be 
 a very urgent need in our service, namely, a statement of the 
 essentials of proof under the more important offenses de- 
 nounced and punished by the new code, for the guidance of 
 trial judge advocates. 
 
 Due to the brief interval between the enactment of the 
 new code and the date when the Manual had to go to the 
 printer in order to be available for troops on foreign station 
 prior to the taking effect of the new code, the preparation of 
 the Manual has necessarily been done with a haste which in a 
 work of such importance it would have been desirable to 
 avoid. It is hoped, however, that no fundamental errors 
 appear therein. In using the Manual it should be borne in 
 mind that over attention to technicalities represents a fail- 
 ure to grasp the spirit of the revision and will lead to re- 
 quests for interpretation which may usually be avoided by 
 the application of broad principles. It is hoped that by the 
 amplification of chapters of this Manual and the inclusion of 
 new chapters on such subjects as "The law of riot duty," 
 " Martial law," and " Military government," future editions 
 may be made to embrace all that is necessary to the service 
 at large regarding the general subject of military law. 
 
 JANUARY 1, 1917. 
 
TABLE OF CONTENTS 
 
 Page. 
 
 Promulgation Executive order xxvi 
 
 Chapter I. Military jurisdiction 1 
 
 Section I. Source and kinds of military jurisdiction 1 
 
 Section II. Exercise of military jurisdiction 2 
 
 Section III. Persons subject to military law 3 
 
 Chapter II. Courts-martial Classification Composition 8 
 
 Section I. Classification 9 
 
 Section II. Composition 9 
 
 Chapter III. Courts-martial By whom appointed 16 
 
 Section I. General courts-martial 16 
 
 Section II. Special courts-martial 20 
 
 Section III. Summary courts-martial 21 
 
 Section IV. Trial judge advocate 24 
 
 Section V. Defense counsel 24 
 
 Chapter IV. Courts-martial Jurisdiction 25 
 
 Section I. Jurisdiction in general 25 
 
 Section II. Jurisdiction of general courts-martial 31 
 
 Section III. Jurisdiction of special courts-martial 33 
 
 Section IV. Jurisdiction of summary courts-martial 35 
 
 Section V. Jurisdiction of other military tribunals 36 
 
 Chapter V. Courts-martial Procedure prior to trial 37 
 
 Section I. Arrest and confinement 37 
 
 Section II. Arrest of deserters by civil authorities 41 
 
 Chapter VI. Courts-martial Procedure prior to trial (con- 
 tinued) 43 
 
 Section I. Preparation of charges 44 
 
 Section II. Action upon charges 55 
 
 Chapter VII. Courts-martial Organization 75 
 
 Section I. The members 76 
 
 Section II. The trial judge advocate 86 
 
 Section III. Assistant trial judge advocate 90 
 
 Section III-A. The defense counsel 92 
 
 Section III-B. Assistant defense counsel 94 
 
 Section IV. Individual counsel for the accused 94 
 
 Section V. Reporter 96 
 
 Section VI. Interpreter 100 
 
 Chapter VIII. Courts-martial Organization (continued) 101 
 
 Section I. Challenges 102 
 
 Section II. Oaths 109 
 
 Section III., Continuances 112 
 
 Section IV. Completion of organization 113 
 
TABLE OF CONTENTS. 
 
 Page. 
 
 Chapter IX. Courts-martial Procedure during trial 114 
 
 Section I. Arraignment 115 
 
 Section II. Pleas 115 
 
 Section III. Refusal to plead 127 
 
 Section IV. Motions and other incidents of the trial 127 
 
 Chapter X. Courts-martial Witnesses and depositions 132 
 
 Section I. Attendance of witnesses 133 
 
 Section II. - Depositions 143 
 
 Section III. Fees, mileage, and expenses of witnesses 149 
 
 Chapter XI. Courts-martial Evidence 154 
 
 Section I. Introductory provisions 157 
 
 Section II. Circumstantial evidence 165 
 
 Section III. Testimonial evidence 169 
 
 Section IV. Documents 197 
 
 Section V. Examination of witnesses 205 
 
 Section VI. Credibility of witnesses 211 
 
 Section VII. Depositions and former testimony 216 
 
 Section VIII. Presumptions 220 
 
 Section IX. Judicial notice 231 
 
 Chapter XII. Courts-martial Concluding incidents of the trial. 234 
 
 Section I. Statements and arguments 235 
 
 Section II. Findings 236 
 
 Section III. Previous convictions 242 
 
 Section IV. Sentences 244 
 
 Chapter XIII. Courts-martial Punishments 256 
 
 Section I. Disciplinary power of commanding officer 256 
 
 Section II. Confinement in a penitentiary 261 
 
 Section III. War Department policy regarding punishments. 264 
 
 Section IV. Prohibited punishments 272 
 
 Section V. Death Cowardice Fraud 273 
 
 Section VI. Maximum limits 274 
 
 Chapter XIV. Courts-martial Procedure of special and sum- 
 mary courts and procedure on revisions 287 
 
 Section I. Special courts-martial 287 
 
 Section II. Summary courts-martial 287 
 
 Section III. Procedure on revision 289 
 
 Chapter XV. Courts-martial Records of trial 291 
 
 Section I. General courts-martial 291 
 
 Section II. Special courts-martial 300 
 
 Section III. Summary courts-martial 302 
 
 Section IV. Correction of records of trial 302 
 
 Section V. Disposition of records of trial 303 
 
 Section VI. Loss of records of trial 305 
 
 Chapter XVI. Courts-martial Action by appointing or superior 
 
 authority Appellate review 306 
 
 Section I. Action on the proceedings 307 
 
 Section II. Appellate review , 324 
 
 Section III. Action after promulgation of sentence ._ 329 
 
 XXII 
 
TABLE OF CONTENTS. 
 
 Page. 
 
 Chapter XVII. Punitive articles 332 
 
 Section I. Enlistment Muster Returns 337 
 
 Section II. Desertion Absence without leave 342 
 
 Section III. Disrespect Insubordination Mutiny 350 
 
 Section IV. Arrest Confinement 365 
 
 Section V. War offenses 377 
 
 Section VI. Miscellaneous crimes and offenses 392 
 
 Chapter XVIII. Courts of inquiry 467 
 
 Section I. Constitution 468 
 
 Section II. Jurisdiction 468 
 
 Section III. Composition 469 
 
 Section IV. Powers 470 
 
 Section V. Procedure 470 
 
 Section VI. Records 474 
 
 Chapter XIX. Habeas corpus 475 
 
 Section I. Purpose of the writ 475 
 
 Section II. Where restraint is by the United States 475 
 
 Section III. Return to writ issued by State court 476 
 
 Section IV. Return to writ issued by United States court 477 
 
 Section V. Writ issued in the Philippine Islands 478 
 
 Chapter XX. Miscellaneous and transitory provisions 479 
 
 Section I. Miscellaneous provisions 479 
 
 Section II. Transitory provision 484 
 
 Appendices : 
 
 1. The Articles of War 487 
 
 2. System of courts-martial for National Guard not in the 
 
 service of the United States 556 
 
 3. Form of order appointing a general court-martial 558 
 
 4. Form of order appointing a special court-martial 559 
 
 5. Charge sheet 560 
 
 6. Forms of charges 565 
 
 7. Forms for synopses of convictions by court-martial (for 
 
 entry in service record) 592 
 
 8. Suggestions for trial judge advocates 602 
 
 9. Forms for use of president and law member 609 
 
 10. Form for record of trial by general court-martial, and 
 
 revision proceedings 616 
 
 11. Form for record Special court-martial 629 
 
 12. Form for record Summary court-martial 633 
 
 13. Forms for sentences 634 
 
 14. Forms for synopses of sentences 636 
 
 15. Forms for action by reviewing authority 637 
 
 16. Court-martial orders 641 
 
 (a) General court-martial 641 
 
 (&) Special court-martial 642 
 
 17. Form for interrogatories and deposition 644 
 
TABLE OF CONTENTS. 
 
 Appendices Continued. Page. 
 
 18. Form of report of investigating officer (549 
 
 19. Subpoena for civilian witness 651 
 
 20. Warrant of attachment j_; 655 
 
 21. General Order No. 1, War Department, December 1, 
 
 1920 Exemptions of certain classes from jurisdic- 
 tion of special and summary courts-martial 656 
 
 22. Returns and briefs in habeas corpus proceedings 657 
 
 23. Voucher : Civilian witness not in Government employ 667 
 
 24. Voucher: Civilian witness in Government employ 670 
 
 25. Voucher: Personal services, reporter 674 
 
 26. Report of inquest 678 
 
 27. List of common errors to be avoided 679 
 
 
 XXIT 
 
ABBREVIATIONS. 
 
 A. R -r- .. ^. Army Regulations, 1913. 
 
 A. W Articles of War, Code of 1920. 
 
 Bishop , Bishop's New Criminal Law, 8th edition. 
 
 Brit, M. M. M British Manual of Military Law [Army], 
 
 Ed. of 1914. 
 
 Clark Clark's Criminal Law, 2d edition. 
 
 Clark and Marshall The Law of Crimes, 2d edition. 
 
 Cyc Cyclopedia of Law and Procedure. 
 
 Davis A Treatise on the Military Law of the United 
 
 States, 2d edition. 
 
 Digest Digest of Opinions of Judge Advocates General 
 
 of the Army, 1912. 
 
 Dudley Military Law and Procedure of Courts-Martial, 
 
 1910. 
 
 Greenleaf Law of Evidence, 16th edition. 
 
 Hgs., S. 64 Testimony before subcommittee of Senate 
 
 Military Affairs Committee (66th Cong.), on 
 hearings on Senate bill 64, "A bill to estab- 
 lish military justice," 1919. 
 
 Kernan Board Report of special War Department board 
 
 Maj. Gen. Kernan, Maj. Gen. O'Ryan, and 
 Lieut. Col. Ogden on " Courts-Martial and 
 their Procedure," July 17, 1919. 
 
 R. S Revised Statutes of the United States, 1878. 
 
 Stat United States Statutes at Large. 
 
 Thompson - Law of Trials. 
 
 Wharton Criminal Law, 9th edition. 
 
 Wigmore Law of Evidence. 
 
 Wigmore, P. C Pocket Code of Evidence. 
 
 Winthrop Military Law and Precedents, 2d edition, 1896. 
 
 xxy 
 
EXECUTIVE ORDER. 
 
 By virtue of the powers in me vested as President of the 
 United States of America, and pursuant to Article 38 of 
 Chapter II of an Act of Congress entitled "An Act To 
 amend an Act entitled 'An Act for making further and 
 more effectual provision for the national defense, and for 
 other purposes', approved June 3, 1916, and to establish 
 military justice," approved June 4, 1920 (41 Stat 759), I 
 prescribe the following rules of procedure, including modes 
 of proof in cases before courts-martial and courts of inquiry 
 in the Army of the United States and direct them to be 
 published^for the government of all concerned. These rules 
 shall be known and designated as the Manual for Courts- 
 Martial, and shall be in force and effect on and after Feb- 
 ruary 4, 1921. 
 
 WOODROW WILSON, 
 
 THE WHITE HOUSE, 
 
 17 December, 1920. 
 
CHAPTER I. 
 MILITARY JURISDICTION. 
 
 Section I : Source and kinds of military jurisdiction : p a ge. 
 
 1. Source 1 
 
 2. Kinds 1 
 
 (a) Military government 1 
 
 (&) Martial law at home 2 
 
 (c) Military law 2 
 
 Section II : Exercise of military jurisdiction : 
 
 3. Military tribunals 2 
 
 (a) Military commissions and provost courts 2 
 
 (5) Courts-martial, general, special, and summary 2 
 
 (c) Commanding officers exercising disciplinary pow- 
 
 ers under A. W. 104 3 
 
 (d) Courts of inquiry 3 
 
 Section III : Persons subject to military law : 
 
 4. Classes enumerated 3 
 
 (a) Regular Army, National Guard, Volunteers, Draft- 
 ed Forces 4 
 
 (6) Cadets 6 
 
 (c) Marine Corps 6 
 
 (d) Medical Department of Navy serving with de- 
 
 tached marines 6 
 
 (e) Retainers to the camp and others 6 
 
 (/) Persons under sentence of court-martial 7 
 
 SECTION I. 
 SOURCE AND KINDS OF MILITARY JURISDICTION. 
 
 1. SOURCE. The source of military jurisdiction is the Con- 
 stitution, the specific provisions relating to it being found 
 in powers granted to Congress, in the authority vested in 
 the President, and in a provision of the fifth amendment. 
 
 2. KINDS. Military jurisdiction is of three kinds, viz: 
 (a) Military Government (the law of hostile occupation) ; 
 
 that is, military power exercised by a belligerent by virtue 
 of his occupation of an enemy's territory, over such terri- 
 tory and its inhabitants. This belongs to the law of war 
 
 1 
 21358 20 1 
 
3 CHAPTER I. 
 
 and therefore to the law of nations. When a conquered 
 territory is ceded to the conqueror, military government 
 continues until civil government is established by the new 
 sovereign. 
 
 (b) Martial Law at Home (or, as a domestic fact) ; by 
 which is meant military power exercised in time of war, 
 insurrection, or rebellion in parts of the country retaining 
 their allegiance, and over persons and things not ordinarily 
 subjected to it. 
 
 This is an application of the doctrine of necessity to a con- 
 dition of war, springing from the right of national self-pres- 
 ervation. 
 
 (c) Military Law; which is the legal system that regu- 
 lates the government of the military establishment. It is a 
 branch of the municipal law, and in the United States de- 
 rives its existence from special constitutional grants of 
 power. It is both written and unwritten. The sources of 
 written military law are the Articles of War enacted by Con- 
 gress June 4, 1920; other statutory enactments relating to the 
 military service; the Army Regulations; this official Manual 
 for Courts-Martial; and general and special orders and deci- 
 sions promulgated by the War Department and by area, 
 department, post, and other commanders. The unwritten 
 military law is the " custom of war," consisting of customs of 
 the service, both in peace and war. 
 
 This Manual deals primarily with military law. 
 
 SECTION II. 
 
 EXERCISE OF MILITARY JURISDICTION. 
 
 3. MILITARY TRIBUNALS. Military jurisdiction is exercised 
 through the following military tribunals : 
 
 (a) Military Commissions and Provost Courts, for the 
 trial of offenders against the laws of war, and under martial 
 law, and military government. 
 
 (b) C owts-martial General, Special, and Summary for 
 the trial of offenders against military law. (A. W. 3.) 
 
 NOTE. 1. The general court-martial has concurrent Jurisdiction 
 with military commissions and provost courts to try any offender who 
 
MILITARY JURISDICTION. ^f 4 
 
 by the law of war is subject to trial by military tribunals (A. W. 
 13, 15). 
 
 Over a few offenses general courts- martial and military commis- 
 sions are expressly, by statute, given concurrent jurisdiction (A. W. 
 15, 80, 81, 82). 
 
 NOTE 2. It has generally been held that military commissions 
 have no jurisdiction of such purely military offenses specified in the 
 Articles of War as those articles expressly make punishable by sen- 
 tence of court-martial (except where the military commission is also 
 given express statutory jurisdiction of the offense A. W. 80, 81, 
 82) ; and in repeated instances where military commissions have as- 
 sumed such jurisdiction their proceedings have been declared invalid 
 in general orders. 
 
 But this rule has not always been strictly observed, especially in 
 cases of such offenses as forcing a safeguard (A. W. 78) or intimida- 
 tion, A. W. 88) of persons bringing supplies (2 Winthrop, 2d Ed., p. 
 1312, and note 1 [Reprint, 1920, p. 841, note 19]; Davis, 3d Ed., p. 
 311). 
 
 NOTE 3. For- the authority to appoint courts-martial in the Na- 
 tional Guard not in the service of the United States, and the jurisdic- 
 tion and powers of such courts, see sections 102-108, National Defense 
 Act of June 3, 1916, 39 Stat 208, 209; Appendix 2, infra. 
 
 (c) Commanding Officers exercising disciplinary powers under 
 the one hundred and fourth article of war. 
 
 (d) Courts of Inquiry, for the examination of transac- 
 tions of or accusations or imputations against officers or 
 soldiers. (A. W. 97.) 
 
 NOTE. A court of inquiry will also be ordered, upon the request of 
 the officer in question, to inquire into the propriety of classifying 
 an officer in class B. (Sec. 24b, Chap. I, act of June 4, 1920; 41 Stat. 
 773.) 
 
 The composition, jurisdiction, procedure, etc., of these 
 tribunals are treated in the succeeding chapters of this 
 Manual. 
 
 SECTION III. 
 
 PERSONS SUBJECT TO MILITARY LAW. 
 
 4. CLASSES ENUMERATED. The following persons are sub- 
 ject to the Articles of War (A. W. 2) : 
 
 NOTE 1. Wherever the following words are used in the Articles of 
 War or this Manual, they are to be construed in the sense indicated 
 below, unless the context shows that a different sense is intended, viz : 
 (a) The word "officer" shall be construed to refer to a commis- 
 
4 CHAPTER I. 
 
 sioned officer ; ( & ) the word " soldier " shall be construed as includ- 
 ing a noncommissioned officer, a private, or any other enlisted man; 
 (c) the word "company" shall be understood as including a troop 
 or battery; and (d) the word "battalion" shall be understood as In- 
 cluding a squadron. (A. W. 1.) 
 
 NOTE 2. Members of the Army Nurse Corps, warrant officers, 
 Army field clerks, and field clerks Quartermaster Corps, are " officers 
 of the Army," but not commissioned officers, and, therefore, are not 
 included within the definition of " officers " contained in the first 
 article of war. The word " officers " is used in this Manual in the 
 same sense as in the first article of war, to designate commissioned 
 officers only. Whenever in this Manual, it is intended to embrace 
 any other persons within the term " officers," it is expressly so stated; 
 and, unless expressly so stated, none of these classes is ever included 
 by the terms " soldiers," or " enlisted men," either in the Articles of 
 War or in this Manual. 
 
 (a) All officers, members of the Army Nurse Corps, warrant 
 officers, Army field clerks, field clerks Quartermaster Corps, and 
 soldiers belonging to the Regular Army of the United 
 States; all volunteers, from the dates of their muster or ac- 
 ceptance into the military service of the United States ; and 
 all other persons lawfully called, drafted, or ordered into 
 or to duty or for training in the said service, from the dates 
 th.y are required by the terms of the call, draft, or order to 
 obey the same. 
 
 NOTE. (a) Regular Army. Composition of the Regular Army: 
 The Regular Army of the United States shall consist of the Infantry, 
 the Cavalry, the Field Artillery, the Coast Artillery Corps, the Air 
 Service, the Corps of Engineers, the Signal Corps, which shall be 
 designated as the combatant arms or the line of the Army; the Gen- 
 eral Staff Corps; the Adjutant General's Department; the Inspector 
 General's Department; the Judge Advocate General's Department; the 
 Quartermaster Corps; the Finance Department; the Medical Depart- 
 ment; the Ordnance Department; the Chemical Warfare Service; the 
 officers of the Bureau of Insular Affairs; the officers and enlisted men 
 under the jurisdiction of the Militia Bureau; the chaplains; the 
 professors and cadets of the United States Military Academy; the 
 present military storekeeper; detached officers; detached enlisted 
 men; unassigned recruits; the Indian Scouts; the officers and en- 
 listed men of the retired list; and such other officers and enlisted 
 men as are now or may hereafter be provided for. Except in time 
 of war or similar emergency when the public safety demands it, the 
 number of enlisted men of the Regular Army shall not exceed 280,- 
 000, including the Philippine Scouts. (Sec. 2, act of June 3, 1916 V 
 39 Stat. 166, as amended by sec. 2 of the act of June 4, 1920, 41 
 Stat. 759.) 
 
MILITARY JURISDICTION. ^f 4 
 
 (&) Volunteers. The volunteer forces shall be subject to the laws, 
 orders, and regulations governing the Regular Army in so far as such 
 laws, orders, and regulations are applicable to officers or enlisted 
 men whose permanent retention in the military service, either on the 
 active list or on the retired list, is not contemplated by existing law. 
 (Sec. 4, act of Apr. 25, 1914, 38 Stat. 347.) 
 
 (c) National Guard. The National Guard, when called as such 
 into the service of the United States, shall, from the time they are 
 required by the terms of the call to respond thereto, be subject to the 
 laws and regulations governing the Regular Army, so far as such 
 laws and regulations are applicable to officers and enlisted men whosfi 
 permanent retention in the military service, either on the active list 
 or on the retired list, is not contemplated by existing law. (Sec. 101, 
 act of June 3, 1916, 39 Stat. 208.) 
 
 [NOTE. The militia when called into the service of the United 
 States is also subject to military law. (35 Stat. 399.) ] 
 
 (d) National Guard When Drafted into Federal Service. Members 
 of the National Guard, when drafted into the Federal military service, 
 stand discharged from the militia, and shall be subject to such laws 
 and regulations for the government of the Army of the United States 
 as may be applicable to members of the Army whose permanent reten- 
 tion in the Army is not contemplated by law. (Sec. Ill, National De- 
 fense Act June 3, 1916, 39 Stat. 211, as amended by sec. 49, Chap. I, 
 act of June 4, 1920, 41 Stat. 784.) 
 
 [NOTE. Members of the National Guard and of the militia and un- 
 organized reserves, when drafted into the Federal service, are sub- 
 ject to the Articles of War and to Military Law, since such articles 
 and law are " laws and regulations for the government of the 
 Army of the United States " which are " applicable to members of 
 the Army whose permanent retention in the military service is not 
 contemplated by law."] 
 
 (e) Eeserve Officers on Active Duty. To the extent provided for 
 from time to time by appropriations for this specific purpose, the 
 President may order reserve officers to active duty at any time and 
 for any period; but except in time of a national emergency expressly 
 declared by Congress, no reserve officer shall be employed on active 
 duty for more than 15 days in any calendar year without his own 
 consent. A reserve officer shall not be entitled to pay and allow- 
 ances except when on active duty. When on active duty he shall re- 
 ceive the same pay and allowances as an officer of the Regular Army 
 of the same grade and length of active service, and mileage from his 
 home to his first station and from his last station to his home, but 
 shall not be entitled to retirement or retired pay. (Sec. 37a, Chap. 
 I, act of June 4, 1920, 41 Stat. 776.) 
 
 (f) The Enlisted Reserve Corps. The Enlisted Eeserve Corps be- 
 ing a part of the Army of the United States (sec. 1, Chap. I, act of 
 June 4, 1920, 41 Stat. 759), its members when placed on active duty 
 
*[ 4 CHAPTER I. 
 
 by direction of the President, tinder section 55b of the National De- 
 fense Act as amended by section 35, Chap. I, of the Army Reorganiza- 
 tion Act of June 4, 1920 (41 Stat. 780), become subject to the Articles 
 of War, as " persons lawfully * * * ordered into or to duty or 
 for training in " the military service of the United States " from the 
 dates they are required by the terms of the * * * order to obey 
 the same." (Par. (a), A. W. 2.) 
 
 (g) The Militia Unorganized Reserves Drafted Forces. The 
 militia, or unorganized reserves, whenever called, drafted, enrolled, 
 or mustered into the Federal military service, become subject to the 
 Articles of War, as " persons lawfully called, drafted, or ordered into, 
 or to duty or for training in, the said service, from the dates they 
 are required by the terms of the call, draft, or order to obey the 
 same." (A. W. 2.) 
 
 (6) Cadets. 
 
 (<?) Officers and soldiers of the Marine Corps when de- 
 tached for service with the armies of the United States by 
 order of the President. (A. W. 2.) 
 
 (d) Officers and enlisted men of the Medical Department 
 of the Navy, serving with a body of marines detached for 
 service with the Army in accordance with the provisions of 
 section sixteen hundred and twenty-one of the Revised 
 Statutes, shall, while so serving, be subject to the rules and 
 articles of war prescribed for the government of the Army 
 in the same manner as the officers and men of the Marine 
 Corps while so serving. (Act of Aug. 29, 1916, 39 Stat. 
 573.) 
 
 NOTE. (a) Except as provided in (c) and (d) supra or otherwise 
 specifically provided by law, the Articles of War do not apply to any 
 person under the United States naval jurisdiction. (&) An officer or 
 soldier of the Marine Corps detached for service with the Army may 
 be tried by military court-martial for an offense committed against 
 the laws for the government of the naval service prior to his detach- 
 ment and for an offense committed against the Articles of War he 
 may be tried by a naval court-martial after such detachment ceases. 
 (A. W. 2.) 
 
 (e) All retainers to the camp and all persons accompany- 
 ing or serving with the armies of the United States without 
 the territorial jurisdiction of the United States, and in time 
 of war all such retainers and persons accompanying or serv- 
 ing with the armies of the United States in the field, both 
 within and without the territorial jurisdiction of the United 
 States though not otherwise subject to the Articles of War. 
 
MILITARY JURISDICTION. ^f 4 
 
 NOTE. In addition to the two classes (a) " retainers to the camp" 
 and (6) " persons serving with the armies of the United States in the 
 field " who were made subject to military jurisdiction by A. W. 60 of 
 the code of 1806 (A. W. 63 of the Revision of 1874), A. W. 2 of the 
 Codes of 1916 and 1920 includes a third class, viz, (c) "persons ac- 
 companying the armies of the United States." 
 
 (/) All persons under sentence adjudged by courts- 
 martial. 
 
 NOTE. Inmates of the Soldiers' Home (A. W. 2(f), and R. 3. 4824), 
 the National Home for Disabled Volunteer Soldiers (R. S. 4835), all per- 
 sons admitted to treatment in the general hospital at Fort Bayard, 
 N. Mex., while patients in said hospital (act of June 12, 1906, 34 Stat. 
 255), and all persons admitted to treatment in the Army and Navy 
 general hospital at Hot Springs, Ark., while patients in said hospital 
 (act of Mar. 3, 1909, 35 Stat. 748), are by the statutes cited made sub- 
 ject to the rules and articles for the government of the Ariny of the 
 United States; and by A. W. 2(f), inmates of the Soldiers' Home are 
 included within the definition of " persons subject to military law." 
 However, court-martial jurisdiction over them has rarely, if ever, 
 been exercised ; and the Judge Advocate General has held such statutes 
 unconstitutional and a dead letter, because those inmates are not 
 a part of the land forces of the United States, being no part of the 
 Army, and not supported by the United States, but are civilians oc- 
 cupying dwellings and sustained by funds held in trust for them 
 (Dig. Ops. J. A. G., 1912, p. 1010, 1-A. Ibid., p. 1012, II). 
 
CHAPTER II. 
 
 COURTS-MARTIAL CLASSIFICATION- 
 COMPOSITION. 
 
 Section I : Classification : Page. 
 
 5. Kinds 9 
 
 (a) General courts-martial 9 
 
 (&) Special courts-martial 9 
 
 (c) Summary courts-martial 9 
 
 Section II : Composition : 
 
 6. Who competent to serve 9 
 
 Exceptions 
 
 (a) Accuser or witness for prosecution 9 
 
 (&) Chaplains excepted by custom 9 
 
 (c) Members of the Army Nurse Corps 9 
 
 Directions to the appointing authority 9 
 
 7. Number of members 10 
 
 (a) General courts-martial 10 
 
 Reduction below quorum Report by trial judge 
 
 advocate 12 
 
 (&) Special courts-martial 12 
 
 Reduction below quorum 12 
 
 (c) Summary courts-martial 13 
 
 8. "Officer" defined 13 
 
 9. " In the military service of the United States " 13 
 
 (a) Officer suspended from rank : 13 
 
 (6) Retired officers 13 
 
 (c) Volunteers, Officers' Reserve Corps, persons called, 
 
 drafted, or ordered into service 14 
 
 10. Marine officers 14 
 
 11. No distinction between Regulars and other forces 14 
 
 12. Rank of members 14 
 
 (a) Trial by inferiors in rank 14 
 
 (&) Determination of rank among Regulars and other 
 
 forces 15 
 
 (c) Rank of law member 15 
 
 13. Who may be tried.; 15 
 
COURTS-MARTIAL CLASSIFICATION COMPOSITION, ^f 5 
 
 SECTION I. 
 CLASSIFICATION. 
 
 5. KINDS. Courts-martial shall be of three kinds (A. W. 
 3), viz: 
 
 (a) General courts-martial; 
 
 (b) Special courts-martial; and 
 
 (c) Summary courts-martial. 
 
 NOTE. The classification of courts-martial adopted by the codes 
 of 1916 and 1920 is identical with that made by the act of March 2, 
 1913 (37 Stat. 722), which abolished garrison and regimental courts- 
 martial and created special courts-martial. 
 
 SECTION II. 
 COMPOSITION. 
 
 6. WHO COMPETENT TO SERVE. All officers in the military 
 service of the United States, and officers of the Marine Corps 
 when detached for service with the Army by order of the 
 President, shall be competent to serve on courts-martial for 
 the trial of any persons who may lawfully be brought before 
 such courts for trial. (A. W. 4.) 
 
 EXCEPTIONS. (a) No officer shall be eligible to sit as a 
 member of a general or special court-martial when he is the 
 accuser or a witness for the prosecution (A. W. 8, 9; see 
 chap. 8, sec. 1, par. 129) ; but when there is only one officer 
 present with a command he shall be the summary court- 
 martial of that command and shall hear and determine 
 cases brought before him (A. W. 10). 
 
 (b) Chaplains are not, in practice, detailed as members 
 of courts-martial. 
 
 (c) Members of the Army Nurse Corps, while they have "rela- 
 tive rank" as officers (sec. 10, Chap. I, act of June 4, 1920; 41 
 Stat. 767), are not commissioned officers and are not eligible for 
 appointment as members of courts-martial. 
 
 Directions to the Appointing Authority. When appointing 
 courts-martial the appointing authority shall detail as members 
 thereof those officers of the command who, in his opinion, are best 
 qualified for the duty by reason of age, training, experience, and 
 
^f 7 CHAPTER IT. 
 
 judicial temperament; and officers having less than two years' 
 service shall not, if it can be avoided without manifest injury to 
 the service, be appointed as members of courts-martial in excess 
 of the minority membership thereof. (A. W. 4.) 
 
 NOTE 1. The code of 1920 adopts, in accordance with recommen- 
 dations made by the Judge Advocate General and by the Kernan 
 Board of the War Department, the principle embodied in the amend- 
 ment to paragraph 6, M. C. M., of July 14, 1919. (Changes No. 5, 
 M. C. Iff., July 14, 1919, par. 6, exception (c).) 
 
 NOTE 2. Staff judge advocates are charged with the duty of ad- 
 vising appointing authorities concerning the qualifications of officers 
 of the command for service on courts- martial. 
 
 7. NUMBER OF MEMBERS. Courts-martial shall be com- 
 posed of the following number of officers (A. W. 5, 6, 7) , viz : 
 
 (a) General Courts- Martial. Anv number not less than 5 
 (A. W. 5). 
 
 NOTE 1. It is not expected that appointing authorities will 
 usually detail on a general court-martial many more members than 
 the minimum required by the statute. An odd number of members, 
 such as 7 or 9, including the law member, will ordinarily be de- 
 tailed, to allow for a few absences and challenges without breaking 
 the legally required quorum of 5. 
 
 While there is no statutory limitation upon the maximum number 
 of members of a general court-martial, appointing authorities will 
 not usually detail more than 9 members; and will not, in any case, 
 unless under very exceptional circumstances, detail more than 13 
 members. 
 
 NOTE 2. The code of 1920 omits the maximum limitation to 13 
 members for a general court-martial which had theretofore been re- 
 quired, for the following reasons, as stated by the Judge Advocate 
 General in the " Comparative Print " of the proposed revision sub- 
 mitted by him to the Senate subcommittee: 
 
 "(1) The maximum limitation serves no practical purpose; con- 
 vening authorities are not likely to appoint an excessive number of 
 members on the court. (2) The present maximum limitation in the 
 statute sometimes results in miscarriage of justice, vide, e. g., the 
 ' the 14-member cases,' where this office was compelled to disapprove 
 sentences, manifestly just in themselves, because through one kind of 
 an error or another it appeared that more than 13 members were on 
 the detail for the court. (3) The requirement that the maximum 
 number be always appointed, if practicable, tends not only to un- 
 duly burden the command by requiring the detail of a large num- 
 ber of officers for service on the court but also toward a weakening 
 of the personnel of the court by requiring the convening authority 
 to nil up the stipulated number if possible. (4) It weakens the re- 
 
 10 
 
COURTS-MARTIAL CLASSIFICATION COMPOSITION. 
 
 sponsibility of the appointing authority for the qualifications of 
 the personnel of the court. Five, six, or seven members actually 
 sitting out of a personnel of 13 appointed may not be at all the kind 
 of court contemplated by the appointing authority in detailing the 
 court, whereas if the original detail were of but 7 or 9, then the 5, 6, 
 or 7 actually sitting would be more nearly substantially the same 
 court contemplated in the detail. (5) The experience of the British, 
 who have no maximum limitation on their courts, but only a mini- 
 mum (British Army Act, sees. 47-49), seems to show that the ab- 
 sence of a maximum tends, in practice, to keep down the number de- 
 tailed to the court to very little above the minimum, and thereby 
 operates to insure that the court sitting at the trial shall be substan- 
 tially the same court detailed by the appointing authority." 
 
 While a number less than 5 can not be organized as a 
 general court-martial or proceed with a trial, they may per- 
 form such acts as are preliminary to the organization and 
 action of the court. Less than 5 members may adjourn from 
 clay to day, and where 5 are present and one of them is chal- 
 lenged, the remaining 4 may determine upon the sufficiency 
 of the objection. A court reduced to 4 members and there- 
 upon adjourning for an indefinite period does not dissolve 
 itself. The appointing authority may at any time complete 
 it by the addition of a new member or members and order it 
 to reassemble for business. (Digest, p. 158, LXXV, B. 3.) 
 
 NOTE 3. Authority to Add Members. A general court, though 
 reduced below 5, is not necessarily to be dissolved, nor can it as- 
 sume to dissolve itself or declare itself dissolved. Such dissolving is 
 a function of the convening commander, who is also empowered, in 
 his discretion, to continue the court by adding a member, or the re- 
 quisite number of members to bring it up to 5, and when thus re- 
 newed, its power as a court is restored, and it may legally proceed 
 with the trial. The adding, however, of new members to courts- 
 martial after a trial has been entered upon has been of rare occur- 
 rence in our practice. Such action is not indeed illegal; the added 
 member, provided the evidence taken, or material proceedings had, 
 prior to his appearance, be first read to him from the record, and he be 
 duly sworn (after the accused has been afforded an opportunity to 
 challenge him), may legally act upon the court during the remainder 
 of the trial and take part in the judgment; and the sentence, if any, 
 imposed by the court will be entirely legal and operative. But this 
 action must be in general of doubtful policy, and is not to be resorted 
 to unless the demands of justice and interests of the service clearly 
 require it. Where, for example, by the death, disability, enforced 
 absence, etc., of a member or members, a court is reduced below 5, 
 
f 7 CHAPTER II. 
 
 in the midst of an important trial, so that, if not renewed, its pre- 
 vious proceedings, however extended, will go for nothing, and the 
 trial will have to be recommenced by a new court, to the delay of 
 justice, inconvenience of the service, detriment of discipline, and 
 perhaps greatly increased public expense, in such a case the author- 
 ized commander will be fully justified in. continuing the court by 
 the detail of the requisite number of members. (1 Winthrop, 2d 
 Ed., pp. 100-101.) 
 
 If for any reason a general court-martial is reduced below 
 five members it will direct the trial judge advocate to report 
 the facts to the convening authority and wait his orders. 
 The report by the trial judge advocate will, in all cases, be 
 made through the commanding officer of the post, command, 
 or station where the court is sitting, who will indorse thereon 
 the names of a sufficent number of available officers whom he 
 recommends be detailed on the court to enable it to pro- 
 ceed. More than enough to make a quorum should be recom- 
 mended where practicable in order to provide for future con- 
 tingencies, and so far as can be foreseen the officers recom- 
 mended should not be liable to challenge in any case to be 
 tried. If there be no such officer or officers available, the 
 commanding officer will so state. This report will be made 
 by wire whenever deemed advisable in order to prevent un- 
 necessary delay in trying cases. Similar action will be taken 
 before trial by the trial judge advocate and commanding offi- 
 cer whenever the former knows or has good reason to be- 
 lieve that the court will be reduced below a quorum at the 
 time of trial. It is the duty of commanding officers to keep 
 in touch with the business before general courts-martial be- 
 ing held within the limits of their commands and from time 
 to time to take the initiative in making recommendations to 
 the appointing authority as to relieving or adding members, 
 changing the trial judge advocate, assistant trial judge advo- 
 cate, defense counsel, or assistant defense counsel, or appoint- 
 ing a new court, and as to other matters relating to .such 
 courts, so that they may proceed expeditiously and in co- 
 operation with other official business. 
 
 (6) Special Courts-martial. Any number of officer^ not 
 less than 3 (A. W. 6). 
 
 The remarks under (a) ante apply equally to a special 
 court-martial where its membership is reduced below the 
 
 12 
 
COURTS-MARTIAL CLASSIFICATION COMPOSITION. ^[ 8 
 
 minimum required by law, except that in the case of a special 
 court-martial the report by the trial judge advocate will be 
 made to the convening authority, who will, without unneces- 
 sary delay, detail a sufficient number of qualified officers to 
 enable it to proceed, or appoint a new court. 
 
 (c) Summary Courts-martial. A summary court-martial 
 shall consist of 1 officer. 
 
 8. " OFFICER " DEFINED. The word " officer " when used in 
 the Articles of War or this Manual means commissioned offi- 
 cer, unless the context shows that a different sense is intended. 
 (See par. 4, notes 1 and 2, supra.) (A. W. 1.) 
 
 9. " IN THE MILITARY SERVICE OF THE UNITED STATES." 
 (a) An officer suspended from rank should not be detailed 
 to sit as a member of a court-martial during the period of 
 suspension. 
 
 (b) Retired officer. "In time of war retired officers may be 
 employed on active duty in the discretion of the President, and 
 when so employed they shall receive the full pay and allowances 
 of their grades," (subpar. 3, sec. 127a, Chap. I, act of June 4, 
 1920; 41 Stat. 785). " The Secretary of War may assign retired 
 officers of the Army, with their consent, to active duty in recruit- 
 ing, for 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-martials, courts of in- 
 quiry and boards, and to staff duties not involving service with 
 troops; and such officers while so assigned shall receive the full 
 pay and allowances of their respective grades." (Act of Apr. 23, 
 1904, 33 Stat. 264.) " That when by reason of the movement of 
 troops a post is temporarily left without its regular garrison and 
 with no commissioned officer except of the Medical Reserve Corps 
 on duty thereat, the Secretary of War may assign a retired officer 
 of the Army, with his consent, to active duty in charge of such 
 post, The officer so assigned shall perform the duties of com- 
 manding officer and also any necessary staff duties at such post, 
 and shall, while in the performance of such duties, receive the 
 full pay and allowances of his grade, subject to the limitations 
 imposed by the act of March 2, 1905, and the act of June 12, 
 1906, which limitations shall include the grades of brigadier 
 
 13 
 
If 10 CHAPTER IT. 
 
 general, major general, and lieutenant general " (act of Aue. 29, 
 1916, 39 Stat 627.) 
 
 (c) Volunteers become eligible for duty as members of 
 courts-martial from the dates of their muster or accept- 
 ance into the military service of the United States (A. W. 2) , 
 reserve officers ordered to active duty by the President (sec. 37a, 
 Chap I, act of June 4, 1920; 41 Stat. 776), and all other officers 
 lawfully called, drafted, or ordered into or to duty or for 
 training in the said service from the date they are required 
 by the terms of the call, draft, or order to obey the same (A. 
 W. 2). 
 
 10. MARINE OFFICERS. Marine officers can be detached for 
 duty with the Army only by order of the President (R. S. 
 1619, 1621), and their eligibility to sit as members of courts- 
 martial to try persons subject to military law continues only 
 during the time they are serving under such order. When 
 any part of the Marine Corps is present with the Army and 
 engaged in a common enterprise with it, without an order 
 of the President detaching it for service with the Army, the 
 case is one of cooperation and not of incorporation, and in 
 such a case no officer of the Marine Corps can exercise com- 
 mand over the Army any more than a naval officer can 
 when some part of the Navy is cooperating with the Army, 
 and the converse is true of Army officers cooperating with 
 the Marine Corps. (28 Op. Atty. Gen., 15.) 
 
 11. No DISTINCTION BETWEEN REGULARS AND OTHER 
 FORCES. No distinction now exists in the matter of eligi- 
 bility for court-martial duty among the various classes of 
 officers in the military service of the United States for the 
 trial of any person subject to military law. (Act of Apr. 
 25, 1914, 38 Stat. 348; A. W. 4.) 
 
 12. RANK or MEMBERS. (a) The order appointing a gen- 
 eral or a special court-martial should name the members in 
 order of rank, and they will sit according to rank. (See, 
 however, as to law member, par. 83, infra.) 
 
 In no case shall an officer, when it can be avoided, be tried 
 by officers inferior to him in rank. (A. W. 16.) This pro- 
 vision is not prohibitory but directory only upon the conven- 
 
 14 
 
COURTS-MARTIAL CLASSIFICATION COMPOSITION, If 13 
 
 ing authority. Its effect is to leave to the discretion of that 
 officer, as the conclusive authority and judge, the determina- 
 tion of the question of the rank of the members, with only 
 the general instruction that superiors in rank to the accused 
 shall be selected, so far as the exigencies and interests of the 
 service will permit. (Mullan v. U. S., 140 U. S., 240 ; Swaini 
 v. IT. S., 165 U. S., 553, 559-560.) 
 
 (b) Rank among officers of the Regular Army, reserve 
 officers, officers of the National Guard, forces drafted or called 
 into the service of the United States, and volunteers, is de- 
 termined according to the rules laid down in A. W. 119 and 
 subparagraph 8 of section 127a of Chapter I of the act of June 4, 
 1S20 (41Stat. 785). 
 
 (c) The law member of a general court-martial will ordi- 
 narily be of field rank. 
 
 If no properly qualified officer of field rank is available from his 
 command, the appointing authority will report the facts to higher 
 authority (by wire, if necessary in order to avoid delay) . 
 
 The order appointing a general court-martial will specifically 
 designate the law member as such. (See form, Appendix 3.) 
 
 13. WHO MAY BE TRIED. (a) For the jurisdiction of 
 general, special, and summary courts-martial as to persons 
 see Chapter IV, Jurisdiction. 
 
 (b) In addition to the persons subject to military law 
 enumerated in Chapter I, Section III, ante, the general 
 court-martial also has jurisdiction over any other person 
 who by the law of war is subject to trial by military tri- 
 bunals. (A. W. 12; see Chap. IV, Jurisdiction.) 
 
 10 
 
CHAPTER III. 
 COURTS-MARTIAL BY WHOM APPOINTED. 
 
 Section I : General courts-martial : Page - 
 
 14. Authorities enumerated, (a) to (i) 16 
 
 Exceptions 
 
 (1) Appointing authority as accuser or prosecutor. 
 
 (2) Superintendent of Military Academy In offi- 
 
 cers' cases I? 
 
 15. Power of President to appoint 
 
 16. Same for Superintendent of Military Academy 
 
 17. " Accuser " or " prosecutor " denned 18 
 
 18. Power to appoint an attribute of command 
 
 19. Rank of appointing authority 20 
 
 20. Power of appointing authority How limited 20 
 
 Section II: Special courts-martial: 
 
 21. Authorities enumerated, (a) to (i) 20 
 
 Exception Appointing authority as accuser or prose- 
 cutor 20 
 
 22. Commanding officer as accuser or prosecutor 21 
 
 23. Rank of appointing authority 21 
 
 24. Commanding officer as member 21 
 
 Section III : Summary courts-martial : 
 
 25. Authorities enumerated, (a) to (7i) 21 
 
 26. When more than one officer present 22 
 
 27. When but one officer present 22 
 
 28. "Detachment" defined 22 
 
 29. Power of brigade commanders 23 
 
 Section IV: Trial judge advocate: 
 
 30. Power to appoint 24 
 
 31. Duties 24 
 
 Section V: Defense counsel: 
 
 31a. Power to appoint 24 
 
 31b. Assistant defense counsel Appointment 24 
 
 31c. Duties of defense counsel and assistant defense 
 
 counsel 24 
 
 SECTION I. 
 GENERAL COURTS-MARTIAL. 
 
 14. AUTHORITIES ENUMERATED. General courts-martial 
 may be appointed by the following authorities by virtue of the 
 statute (A. W. 8), viz: 
 
 16 
 
OOUKTS-ltARTIAL BY WHOM APPOINTED. r 15 
 
 (a) The President of the United States. 
 
 (b) The commanding officer of a territorial division. 
 
 (c) The commanding officer of a territorial depart- 
 
 ment. 
 
 (d) The Superintendent of the Military Academy. 
 
 (e) The commanding officer of an army. 
 
 (/) The commanding officer of an army corps. 
 (<7) The commanding officer of a (tactical) division. 
 (k) The commanding officer of a separate brigade, 
 (t) The commanding officer of any district or of any 
 force or body of troops, when empowered by 
 the President to do so. 
 
 EXCEPTIONS. (1) When any of the foregoing command- 
 ers is the accuser or the prosecutor of the person or per- 
 sons to be tried, the court shall be appointed by superior com- 
 petent authority; (2) the superintendent of the Military 
 Academy is not empowered to convene a general court-mar- 
 tial for the trial of an officer. (A. W. 12.) 
 
 XOTZ 1. Other commanding officers are from time to time empow- 
 cred by the President, by General Orders, to convene general courts- 
 martial. 
 
 In such eases, for convenience, reference should be made to such 
 general orders, in records of trials by such courts. Bnt snch refer- 
 ence is not necessary as to their validity, since judicial notice will 
 be taken of such general orders. (See, infra, par. 289.) 
 
 NOTE 2. For the authority to appoint general courts-martial in the 
 National Guard not in the service of the United States, see section 
 103, act of June 3, 1916, 39 Stat 206, Appendix 2, infra. 
 
 15. POWER OF THE PRESIDENT TO APPOINT. In addition to 
 the general statutory authority conferred upon the Presi- 
 dent by A. W. S to appoint general courts-martial he is also 
 empowered to do so by virtue of being Commander in Chief 
 of the Army (Swaim v. U. a, 165 U. S., 553) and in the 
 particular case provided for by R. S. 1230. 
 
 NOTE. When any officer, dismissed by order of the President, makes, 
 in writing, an application for trial, setting forth, under oath, that he 
 has been wrongfully dismissed, the President shall, as soon as the 
 necessities of the service may permit, convene a court-martial to try 
 such officer on the charges on which he shall have been dismissed. 
 And if a court-martial is not so convened within sir months from the 
 presentation of such application for trial, or if such court, being con- 
 vened, does not award dismissal or death as the punishment of such 
 
 2135S 20 _ 17 
 
^f 16 CHAPTER III. 
 
 officer, the order of dismissal by the President shall be void. (II. S. 
 1230.) But a recent decision of the Court of Claims holds Section 
 1230, B. S., inoperative (Wallace v. U. S., No. 34104, Court of Claims, 
 Mar. 22, 1920.) See also A. W. 118. 
 
 16. SUPERINTENDENT OF THE MILITARY ACADEMY. The 
 superintendent of the Military Academy was authorized by 
 R. S. 1326 to convene general courts-martial for the trial of 
 cadets only ; the act of March 2, 1913 (37 Stat, 722) , extended 
 this authority to include all persons (except officers) subject 
 to military law under his command. This authority was con- 
 tinued in the codes of 1916 and 1920. (A. W. 8, 12.) 
 
 17. "ACCUSER " OR " PROSECUTOR." Whether the com- 
 mander who convened the court is to be regarded as the 
 " accuser or prosecutor " where he has had to do with the 
 preparing and preferring of the charges, is mainly to be de- 
 termined by his animus in the matter. He may, like any 
 other officer, initiate an investigation of an officer's conduct 
 and formally prefer, as his individual act, charges against 
 such officer ; or by reason of a personal interest adverse to the 
 accused he may adopt practically as his own charges initiated 
 by another ; in which cases he is clearly the accuser or prose- 
 cutor within the article. On the other hand, it is his duty to 
 determine, when the facts are brought to his knowledge, 
 whether an officer within his command charged with a mili- 
 tary offense shall in the interest of discipline and for the 
 good of the service be brought to trial. To this end he may 
 (after proper investigation has been had and after receiving 
 the advice of his staff judge advocate thereon) formally re- 
 fer for trial charges preferred against such officer by an- 
 other; or when the facts of an alleged offense are communi- 
 cated to him, he may direct a suitable officer, as a member of 
 his staff, or the proper commander of the accused, to investi- 
 gate the matter, with a view to formulating and preferring 
 such charges as the facts may warrant, and after having 
 been regularly investigated and submitted to him, he may 
 refer them for trial as in other cases ; all this he may do in 
 the proper performance of his official duty without becoming 
 the accuser or prosecutor in the case. On the other hand, it is 
 not essential that the commander who convenes the court- 
 martial for the trial of an officer should sign the charges to 
 
 18 
 
COUBTS-MARTIAL BY WHOM APPOINTED. If 18 
 
 make him the " accuser or prosecutor " within the meaning of 
 this article. Nor is the fact that they have been signed by 
 another conclusive on the question whether the convening 
 commander is the actual accuser or prosecutor. The objec- 
 tion that such commander is such, calls in question the legal 
 constitution of the court, and while such objection, if known 
 or believed to exist, should regularly be interposed at or be- 
 fore the arraignment, it may be taken during the trial at any 
 stage of the proceedings. If not admitted by the prosecution 
 to exist, the accused is entitled to prove it like any other 
 iasue. (For decisions as to when the convening authority is 
 the accuser or prosecutor, see Digest, p. 155, LXXII, I, 1, a; 
 p. 155, LXXII, I, 2; p. 156, LXXII, I, 3, a; p. 156, LXXII, 
 
 I,3,a(l)0 . 
 
 18. POWER TO APPOINT AN ATTRIBUTE OF COMMAND. As 
 the authority to appoint general courts-martial is an at- 
 tribute of command, a commanding officer can not delegate 
 to another officer, such as his adjutant or any other staff 
 officer or subordinate, the authority to appoint a court, detail 
 an additional member, or relieve a member, or to appoint or 
 relieve the trial judge advocate or defense counsel, or assist- 
 ants to either. Where the authority to appoint a general 
 court-martial is vested in a commanding officer, he retains 
 that authority, wherever he may be, so long as he continues 
 to be such commanding officer. In the absence of orders or 
 legislation, personal presence within the territorial limits of 
 his area or department is not essential to the validity of com- 
 mands given by an area or department commander to be 
 executed within the area or department. Therefore he may 
 appoint a court-martial while absent from his area or de- 
 partment, if he continues to exercise command. But an area 
 or department commander detached and absent from his 
 command for any considerable period by reason of having 
 received a leave of absence (whether of a formal or informal 
 character), or having been placed upon a distinct and sepa- 
 rate duty, is held to be in a status incompatible with a full 
 and legal exercise of such authority, and therefore incom- 
 petent during such absence to order a general court-martial 
 as an area or department commander, even though no other 
 
 19 
 
If 19 CHAPTER III. 
 
 officer has been assigned or has succeeded to the command of 
 the area or department. (Digest, p. 153, LXXII, A.) 
 
 19. RANK OF APPOINTING AUTHORITY. The power of the 
 various commanders enumerated in paragraph 14, supra, to 
 appoint general courts-martial is independent of their rank, 
 but no officer other than those enumerated can appoint a 
 general court-martial no matter what his rank may be. An 
 officer who succeeds to any command or duty stands in regard 
 to his duties in the same situation as his predecessor. 
 In the event of the death or disability of the permanent 
 commander of a territorial area or department, or his tem- 
 porary absence from the limits of his command, the senior 
 line officer present and on duty therein will exercise the 
 command of the area or department, unless otherwise ordered, 
 until relieved by proper authority. 
 
 20. POWER OF APPOINTING AUTHORITY, How LIMITED. An 
 officer who has power to appoint a court-martial may control 
 its existence, dissolve it, and determine the cases to be re- 
 ferred to it for trial, but he can not control the exercise by 
 the court of powers vested in it by law. 
 
 SECTION II. 
 SPECIAL COURTS-MARTIAL. 
 
 21. AUTHORITIES ENUMERATED. Special courts - martial 
 may be appointed by the following authorities (A. W. 9), 
 viz: 
 
 (a) The commanding officer of a district. 
 
 (b) The commanding officer of a garrison. 
 
 (c) The commanding officer of a fort. 
 
 (d ) The commanding officer of a camp. 
 
 (e) The commanding officer of any place other than 
 
 (a), (&) , (c), and (d) where troops are on duty. 
 (/) The commanding officer of a brigade. 
 (g) The commanding officer of a regiment. 
 (A) The commanding officer of a detached battalion. 
 (i) The commanding officer of any other detached 
 
 command. 
 
 EXCEPTION. When any one of the foregoing commanding 
 officers is the accuser or the prosecutor of the person or per- 
 
 20 
 
COURTS-MAKTIAL BY WHOM APPOINTED. If 22 
 
 sons to be tried, the court shall be appointed by superior 
 authority. 
 
 When any superior authority deems it desirable, he may 
 appoint a special court-martial for any part of his com- 
 mand. 
 
 NOTE. For the authority to appoint special courts-martial in the 
 National Guard not in the service of the United States, see section 
 104, act of June 3, 1916, 39 Stat. 208 ; Appendix 2, infra. 
 
 22. COMMANDING OFFICER AS "ACCUSER OR PROSECUTOR." 
 The rules laid down in Section I, paragraph 17, supra, for 
 determining when a commander is the accuser or prosecutor 
 apply equally to trials by special courts-martial. When a 
 superior appoints a court because of such disqualification on 
 the part of a subordinate commanding officer, he will specify 
 in the order the names of the person or persons to be tried, 
 and the court will adjourn sine die upon the completion of 
 the last case" which it is ordered to try. 
 
 23. RANK OF APPOINTING AUTHORITY. As in the case of 
 general courts-martial, the test of the power to appoint a 
 special court-martial is whether the officer is one of the com- 
 manders designated in A. W. 9. Such authority is an inci- 
 dent of his power to command, and is independent of his 
 rank. 
 
 24. COMMANDING OFFICER AS MEMBER. When but two offi- 
 cers in addition to the commanding officer are available for 
 detail on a special court-martial, the commanding officer will 
 not detail himself as a member of such court. In such a 
 case, if superior authority desires to appoint a special court- 
 martial for such command, the commanding officer, if other- 
 wise eligible, may be appointed as a member thereof. 
 
 SECTION III. 
 SUMMARY COURTS-MARTIAL. 
 
 25. AUTHORITIES ENUMERATED. Summary courts-martial 
 may be appointed by the following authorities (A. W. 10), 
 viz: 
 
 (a) The commanding officer of a 'garrison. 
 
 (b) The commanding officer of a fort. 
 
 (c) The commanding officer of a camp. 
 
 21 
 
If 26 CHAPTER III. 
 
 (d) The commanding officer of any other place not 
 
 enumerated in (a), (6), and (c) where troops 
 are on duty. 
 
 (e) The commanding officer of a regiment. 
 
 (/) The commanding officer of a detached battalion. 
 (g) The commanding officer of a detached company. 
 (A) The commanding officer of any other detach- 
 ment not enumerated in (/) and (g). 
 
 A summary court-martial may in any case be appointed 
 by superior authority when by the latter deemed desirable. 
 
 NOTE. For the authority to appoint summary courts-martial in the 
 National Guard not in the service of the United States, see section 
 105, act of June 3, 1916, 39 Stat. 208 ; Appendix 2, infra. 
 
 26. WHEN MORE THAN ONE OFFICER PRESENT. When 
 more than one officer is present the summary court-martial 
 will be appointed from staff officers or available line officers 
 junior to the commanding officer. The commanding officer 
 will not in such cases designate himself as the summary 
 court-martial. The senior officer on duty at a recruiting sta- 
 tion is a " commanding officer " in the sense of the last pre- 
 ceding sentence when there is another officer present at the 
 same station, even though the latter may be serving at an 
 auxiliary or branch station. (Bui. 46, War Dept., Oct. 
 24, 1914.) 
 
 27. WHEN BUT ONE OFFICER PRESENT. When but one 
 officer is present with a command he shall be the summary 
 court-martial of that command and shall hear and determine 
 cases brought before mm. (A. \V. 10.) In such a case, no 
 order appointing the court will be issued, but the officer will 
 enter on the record that he is the " only officer present with 
 the command." (As to retired officers, see par. 9, &, supra.) 
 
 28. " DETACHMENT " DEFINED. A battalion or other unit 
 is " detached " when isolated or removed from the immediate 
 disciplinary control of a superior of the same branch of 
 the service in such a manner as to make its commander 
 primarily the one to be looked to by superior authority as 
 the officer responsible for the administration of the dis- 
 cipline of the enlisted men composing the same. The term 
 
 22 
 
COURTS-MARTIAL BY WHOM APPOINTED. If 29 
 
 is used in a disciplinary sense, and is not necessarily limited 
 to what constitutes detachment in a physical or tactical sense. 
 The commanding officers of such units as field signal bat- 
 talions, aero squadrons, field bakeries, and ammunition, en- 
 gineer, or sanitary trains, if their respective commands are 
 independent, except in so far as they constitute parts of a 
 division, and if their commanders are responsible directly to 
 the division commander for the maintenance of discipline 
 in those commands, are competent to appoint summary 
 courts for the same, subject to the power of the division com- 
 mander to appoint summary courts for all subordinate or- 
 ganizations and detachments under his command if by him 
 deemed advisable. 
 
 So likewise the various service schools, such as The 
 Cavalry School at Fort Riley, though they may be lo- 
 cated within .the immediate limits of higher commands, 
 constitute " detachments " within the meaning of A. W. 10, 
 and the commandants thereof have power to appoint sum- 
 mary courts-martial for the trial of enlisted men connected 
 with such schools, subject to the right of the commanding 
 officer of the garrison or fort to appoint such courts when by 
 him deemed desirable. (Bui. 13, War Dept., 1913, p. 7.) 
 
 29. POWER OF BRIGADE COMMANDERS. A brigade com- 
 mander is responsible for the instruction, tactical efficiency 
 and preparedness for war service of his brigade. If the 
 brigade is serving at one garrison or post he has, by virtue 
 of his power as such garrison or post commander, authority 
 to retain within himself the appointing power of all sum- 
 mary courts within his command, but if he does not exercise 
 the authority which is vested in him by statute he allows the 
 appointing power, including the power of review, to pass to 
 regimental (and detachment) commanders. (Digest, p. 580, 
 XVI, E, 7.) If the brigade is acting as a tactical unit in the 
 field, he may as superior authority, appoint summary courts- 
 martial for his command whenever he deems it desirable, but 
 such authority will ordinarily be exercised by the regimental 
 commanders. 
 
 23 
 
If 30 CHAPTER Til. 
 
 SECTION IV. 
 TRIAL JUDGE ADVOCATE. 
 
 30. POWER TO APPOINT. For each general or special 
 court-martial the authority appointing the court shall ap- 
 point a trial judge advocate, and for each general court-mar- 
 tial one or more assistant trial judge advocates when neces- 
 sary. (A.W. 11.) 
 
 31. DUTIES OF Trial JUDGE ADVOCATE AND ASSISTANT Trial 
 JUDGE ADVOCATES. For discussion of duties of the trial 
 judge advocate and his assistants see Chapter VII, Sections 
 II and III. 
 
 SECTION V. 
 
 DEFENSE COUNSEL. 
 
 31a. Power to Appoint. For each general or special court- 
 martial the authority appointing the court shall, in the convening 
 order, appoint a defense counsel, and for each general court- 
 martial one or more assistant defense counsel when necessary. 
 (A. W. 11.) 
 
 NOTE. The code of 1920 introduced the statutory requirement that 
 defense counsel for general and special courts-martial, together with 
 assistant defense counsel where deemed necessary by the appointing 
 authority for general courts-martial, must be appointed at the same 
 time and in the same manner as trial judge advocates and assistant 
 trial judge advocates. This embodied in statutory form the prin- 
 ciple of the amendment of paragraph 108, Manual for Courts-Martial 
 of July 14, 1919. 
 
 31b. Assistant Defense Counsel Appointment. Unless it can 
 not be done without manifest injury to the service, assistant de- 
 fense counsel will be appointed for a general court-martial when- 
 ever an assistant trial judge advocate is appointed, 'if more than 
 one assistant trial judge advocate is appointed, a corresponding 
 number of assistant defense counsel will, as a rule, be appointed. 
 
 31c. Duties of Defense Counsel and Assistant Defense Coun- 
 sel. For discussion of the duties of the defense counsel and his 
 assistants see Chapter VII, Section IV. 
 
 24 
 
CHAPTER IV. 
 COURTS-MARTIALJURISDICTION. 
 
 Section I: Jurisdiction in general: Page. 
 
 32. Jurisdiction defined 25 
 
 33. Courts-martial not part of Federal judicial system 26 
 
 33a. Their nature 26 
 
 34. Conditions necessary to show jurisdiction 27 
 
 35. Procedure when military and civil jurisdiction concur- 
 
 rent 28 
 
 36. Can not be divested by act of accused 29 
 
 37. Not territorial 29 
 
 38. When terminated Rule stated 30 
 
 Exceptions, (a) to (e) 30 
 
 Section II : Jurisdiction of general courts-martial : 
 
 39. Persons and offenses 31 
 
 40. Limits of punishment Exceptions, (a) to (e) 32 
 
 Section III : Jurisdiction of special courts-martial : 
 
 41. Persons and offenses 33 
 
 41a. Second proviso to the twelfth article of war 34 
 
 42. Limits of punishment 35 
 
 Section IV : Jurisdiction of summary courts-martial : 
 
 43. Persons and offenses 35 
 
 44. Limits of punishment 36 
 
 Section V : Jurisdiction of other military tribunals : 
 
 45. When concurrent with courts-martial 36 
 
 SECTION I. 
 JURISDICTION IN GENERAL. 
 
 32. JURISDICTION DEFINED. The jurisdiction of a court- 
 martial is its power to try and determine cases legally 
 referred to it and, in case of a finding of guilty, to award a 
 punishment for the offense within its prescribed limits. 
 Being courts of special and limited jurisdiction, their organi- 
 zation, powers, and mode of procedure must conform to 
 all the statutory provisions relating to their jurisdiction. 
 For the source and kinds of military jurisdiction and per- 
 sons subject to military law, see Chapter I, Sections I 
 and III. 
 
 25 
 
^[33 CHAPTER 17. 
 
 33. COURTS-MARTIAL NOT PART OF ORDINARY FEDERAL JUDI- 
 CIAL SYSTEM. While courts-martial have no part of the juris- 
 diction set apart under the article of the Constitution which 
 relates to the judicial power of the United States, they have 
 an equally certain constitutional source. They are established 
 under the constitutional power of Congress to make rules for 
 the government and regulation of the land forces of the 
 United States, and are recognized in the provisions of the 
 fifth amendment, expressly exempting " cases arising in the 
 land and naval forces " from the requirement as to present- 
 ment and indictment by grand jury. They are tribunals ap- 
 pointed by military orders issued under authority of law. 
 The power to appoint them, as well as the power to act upon 
 their proceedings, is vested by law in certain commanding 
 officers. Their jurisdiction is entirely penal or disciplinary. 
 They have no power to adjudge damage for personal injuries 
 or private wrongs, nor to collect private debts. Their judg- 
 ments upon subjects within their limited jurisdiction, when 
 duly approved or confirmed, are as legal and valid as those of 
 any other tribunals. No appeal can be taken from them, nor 
 can they be set aside, or reviewed by the courts of the United 
 States, nor of any State, but United States courts may, on 
 a writ or habeas corpus, inquire into the legality of detention 
 of a person held by military authority, at any time, either 
 before or during trial or while serving sentence, and will 
 order him discharged, if it appears to the satisfaction of the 
 court that any of the statutory requirements conferring 
 jurisdiction have not been fulfilled. Their sentences have in 
 themselves no legal effect until they have received the ap- 
 proval or confirmation of the proper commanding officer. 
 With such approval or confirmation, however, their sen- 
 tences become operative and are as effective as the sentences 
 of civil courts having criminal jurisdiction, and are entitled 
 to the same legal consideration. 
 
 33a. Their Nature. While courts-martial are not a part of the 
 Federal judicial system, they exercise within the Army functions 
 of a purely judicial nature, for the maintenance of discipline and 
 good order; and are, no less than other courts, governed by law. 
 
 NOTE. " The whole proceeding from its inception is judicial. The 
 trial, finding, and sentence are the solemn acts of a court organized 
 
 26 
 
COURTS-MARTIAL JURISDICTION. ^f 34 
 
 and conducted under the authority and according to the prescribed 
 forms of law. It sits to pass upon the most sacred questions of 
 human rights that are ever placed on trial in a court of justice; rights 
 which, in the very nature of things, can neither be exposed to danger 
 nor entitled to protection from the uncontrolled will of any man, but 
 which must be adjudged according to law. And the act of the officer 
 who reviews the proceedings of the court, whether he be the com- 
 mander of the fleet or the President, and without whose approval 
 the sentence can not be executed, is as much a part of this judg- 
 ment, according to law, as is the trial or the sentence." (11 Ops. 
 Atty. Gen., 19, 21.) 
 
 " Courts-martial are lawful tribunals, with authority to finally de- 
 termine any case over which they have jurisdiction, and their pro- 
 ceedings, when confirmed as provided, are not open to review by 
 the civil tribunals, except for the purpose of ascertaining whether 
 the military court had jurisdiction of the person and subject mat- 
 ter, and whether, though having such jurisdiction, it had exceeded 
 its powers in the sentence pronounced." (Grafton v. TJ. S,, 206 IT. 
 S., 333, 347-348.) 
 
 34. CONDITIONS NECESSARY TO SHOW JURISDICTION. The 
 jurisdiction of every court-martial, and hence the validity of 
 each of its judgments, is conditioned upon these indispensable 
 requisites : 
 
 (a) That it was convened by an officer empowered to ap- 
 point it. 
 
 (5) That the persons who sat upon the court were legally 
 competent to do so. 
 
 (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 its sentence was in accordance with law. 
 
 " Persons, then belonging to the Army and the Navy are not subject 
 to illegal or irresponsible courts-martial, when the law for convening 
 them and directing their proceedings of organization and for trial 
 have been disregarded. In such cases everything which may be done 
 is void not voidable but void and civil courts have never failed, 
 upon a proper suit, to give a party redress who has been injured by 
 a void process or void judgment * * * When we speak of pro- 
 ceedings in a cause, or for the organization of the court and for trials, 
 we do not mean mere irregularity in practice on the trial, or any 
 mistaken rulings in respect to evidence or law, but a disregard of the 
 essentials required by the statute under which the court has been 
 convened to try and to punish an offender for an imputed violation 
 of the law." (Dynes v. Hoover, 61 U. S., 81; see also Deming <y. 
 
 27 
 
If "35 CHAPTER IV. 
 
 McClaughry, 113 Fed. Rep., 650; McCIaughry v. Deming, 186 U. S., 
 C3; Mullan v. United States, 140 U. S., 240; Ex parte Tucker, 212 
 Fed. Rep., 569; and A. W. 37.) 
 
 35. PROCEDURE WHEN MILITARY AND CIVIL JURISDICTION 
 CONCURRENT. Courts-martial have exclusive jurisdiction tc 
 try persons subject to military law for all purely military 
 crimes and offenses; they have concurrent jurisdiction with 
 the proper civil courts to try such persons for civil crimes 
 and offenses denounced and punished under A. W. 92, 93, 
 94, and 96. (For limitation as to the crimes of murder and 
 rape, see A. W. 92.) In accordance with a principle of 
 comity as between the civil and military tribunals in cases 
 of concurrent jurisdiction, the jurisdiction which first at- 
 taches in a particular case is entitled to proceed to its ter- 
 mination. This is, however, not an inflexible rule and need 
 not govern the action of the military authorities in the case 
 of an accused person demanded by the civil authorities to 
 answer for an offense which is primarily one against the 
 sivil community. 
 
 When any person subject to military law, except (a) one 
 jvho is held by the military authorities to answer, or (b) 
 who is awaiting trial, or (c) result of trial, or (d) who is 
 undergoing sentence for a crime or offense punishable by the 
 Articles of War, is accused of a crime or offense committed 
 tvithin the geographical limits of the States of the Union 
 and the District of Columbia, and punishable by the laws 
 of the land, the commanding . officer is required, except in 
 time of war, upon application duly made, to use his utmost 
 endeavor to deliver over such accused person to the civil 
 authorities, or to aid the officers of justice in apprehending 
 and securing him, in order that he may be brought to trial. 
 Any commanding officer who upon such application refuses 
 or willfully neglects, except in time of war, to deliver over 
 such accused person to the civil authorities or to aid the 
 officers of justice in apprehending and securing him shall be 
 dismissed from the service or suffer such other punishment as 
 a court-martial may direct. 
 
 When, under the provisions- of this article, delivery is 
 made to the civil authorities of an offender undergoing sen- 
 tence of a court-martial, such delivery, if followed by con- 
 
 28 
 
COURTS-MARTIAL JURISDICTION. H 36 
 
 viction, shall be held to interrupt the execution of the sen- 
 tence of the court-martial, and the offender shall be returned 
 to military custody, after having answered to the civil au- 
 thorities for his offense, for the completion of the said court- 
 martial sentence. (A. W. 74.) When offenses against the 
 peace and good order of civil communities are committed by 
 persons subject to military law, the proper military authori- 
 ties will be prompt in the preferring of charges and the 
 arraignment of offenders, having due regard for arrange- 
 ments existing for the purpose of securing between the au- 
 thorities of the two jurisdictions, civil and military, mutual 
 aid and cooperation in the administration of justice. In 
 such cases, if, after charges are preferred, the officer com- 
 petent to order trial by the proper court-martial deems it 
 inadvisable to bring the case to trial, he will hold the offender 
 and forward the charges, with his views thereon, to The 
 Adjutant General of the Army. 
 
 36. CAN NOT BE DIVESTED BY ACT OF ACCUSED. A court- 
 martial having once duly assumed jurisdiction of a case, 
 can not, by any wrongful act of the accused, be ousted of its 
 authority or discharged from its duty to proceed fully to 
 try and determine according to law and its oath. Thus the 
 fact that, after arraignment and during the trial, the ac- 
 cused has escaped from military custody furnishes no ground 
 for not proceeding to a finding, and, in the event of convic- 
 tion, to a sentence in the case ; and the court may and should 
 find and sentence as in any other case. During such absence 
 it is proper for his counsel to continue to represent him in 
 all respects as though present. 
 
 37. NOT TERRITORIAL. Military jurisdiction is not terri- 
 torial. It extends as to persons legally subject to it to 
 offenses committed by them in any place whatsoever, whether 
 within or beyond the territorial jurisdiction of the United 
 States. 
 
 NOTE. Herein military jurisdiction differs sharply from the juris- 
 diction of civil courts. The latter are created for certain districts, 
 counties or other geographical subdivisions, to which their jurisdic- 
 tion is limited. The have no jurisdiction beyond such geographical 
 limits or over any offense not committed within such boundaries. The 
 jurisdiction of military courts is, on the contrary, not so limited. 
 
 29 
 
^[ 38 CHAPTER IV. 
 
 Hence the rules of civil courts relating to " venue " have no appli- 
 cation in military courts. 
 
 38. WTIEX TERMINATED RULE STATED. The jurisdiction 
 of courts-martial over officers, cadets, soldiers, and other 
 persons in the military service of the United States, ordi- 
 narily ends when they become separated from the service. 
 The following are, however, exceptions to this general rule : 
 
 (a) If any person, being guilty of any of the offenses of 
 fraud, embezzlement, etc., against the United States, while 
 in the military service of the United States, receives his dis- 
 charge or is dismissed from the service, he shall continue to 
 be liable to be arrested and held for trial and sentence by a 
 court-martial in the same manner and to the same extent as 
 if he had not received such discharge nor been dismissed. 
 (A. W. 94.) 
 
 (&) When any officer, dismissed by order of the President, 
 makes, in writing, an application for trial, setting forth, 
 under oath, that he has been wrongfully dismissed, the Presi- 
 dent shall, as soon as the necessities of the service may per- 
 mit, convene a court-martial to try such officer on the charges 
 on which he shall have been dismissed, and if a court-martial 
 is not so convened within six months from the date of the 
 making of such application for trial, or if such court, being 
 convened, does not award dismissal or death as the punish- 
 ment of such officer, the order of dismissal by the President 
 shall be void. (R. S. 1230.) 
 
 NOTE 1. This has no reference to an officer discharged from the 
 Army by reason of being classified in class B, under section 24b of 
 the National Defense Act as amended by the act of June 4, 1920 
 (41 Stat. 773). An officer so discharged is not entitled to demand a 
 trial by court-martial under K. S. 1230. 
 
 NOTE 2. In time of peace no officer shall be dismissed except iii 
 pursuance of the sentence of a court-martial or in mitigation thereof. 
 (A. W. 118.) An officer discharged from his office by the President 
 under section 9 of the selective-draft act is not entitled to demand a 
 trial by court-martial. (Dig. Ops., J. A. G., May, 1918, Office IV E.) 
 
 NOTE 3. The President may at any time drop from the rolls of 
 the Army any officer who has been absent from duty three months 
 without leave, or who has been absent in confinement in a prison or 
 penitentiary for three months after final conviction by a court of com- 
 petent jurisdiction. (A. W. 118; K. S. 1229; act of Jan. 19, 1911, 38 
 
 80 
 
COURTS-MARTIAL JURISDICTION. If 39 
 
 Stat., 894.) When an officer's name is so dropped from the rolls by 
 the President the officer is thereby fully separated from the military 
 service and becomes a civilian (par. XX E, Dig. Ops. J. A. G., p. 426; 
 2d Ind., Mar. 25, 1920, J. A. G. 300.2; 2d Ind., June 16, 1920, J. A. 
 G., 210.14); subject, however, to his right to have a court-martial 
 convened to try him on the charges on which he shall have been 
 dismissed, under section 1230, E. S. 
 
 NOTE 4. The Court of Claims has held section 1230, R. S., to be 
 inoperative. (See note to par. 15, supra.) 
 
 (c) All persons under sentence adjudged by courts-martial 
 remain subject to military law while under such sentence. 
 (A. W. 2.) 
 
 (d) Where a soldier obtains his discharge by fraud, the 
 discharge may be canceled and the soldier arrested and re- 
 turned to military control. He may also be required to serve 
 out his enlistment and may be tried for his fraud. (Digest, 
 p. 457, XVI, A. 3.) 
 
 (e) An honorable discharge releases from the particular 
 contract and term of enlistment to which it relates, and does 
 not therefore relieve the soldier from the consequences of a 
 desertion committed during a prior enlistment. (Digest, p. 
 462, XXII, A.) 
 
 NOTE. For an offense committed prior to the expiration of his term 
 of enlistment, a soldier may be held in the service and tried after the 
 expiration of his term. So, also, a soldier may be tried for offenses 
 committed while making good time lost through desertion, through 
 absence without leave, through disease or injury, the result of his own 
 misconduct, etc., under A. W. 107. 
 
 SECTION II. 
 JURISDICTION OF GENERAL COURTS-MARTIAL. 
 
 39. PERSONS AND OFFENSES GENERAL COURTS- MARTIAL 
 have power (A. W. 12) to try 
 
 (a) Any person subject to military law, for 
 
 (b) Any crime or offense made punishable by the Ar- 
 
 ticles of War. 
 
 NOTE. No officer shall be brought to trial before a general court- 
 martial appointed by the Superintendent of the Military Academy. 
 (A. W. 12.) 
 
 31 
 
TI 40 C?HAPTER IV. 
 
 In addition they have power to try 
 
 (c) Any person other than (a) above, who by the law of 
 war is subject to trial by military tribunals, for 
 
 (d) Any crime or offense in violation of the law of war. 
 40. LIMITS OF PUNISHMENT EXCEPTION. Punishment 
 
 upon conviction is discretionary with a general court-mar- 
 tial, except 
 
 (a) When mandatory under the law, or 
 
 (b) When limited by order of the President under A. W. 
 45 ; in addition, 
 
 (c) The death penalty can be imposed only when specifi- 
 cally authorized; and 
 
 (d) Except for 
 
 (a) Desertion in time of war, 
 
 (b) Repeated desertion in time of peace, or 
 
 (c) Mutiny, 
 
 no person shall under the sentence of a court-martial be pun- 
 ished by confinement in a penitentiary unless an act or omission 
 of which he is convicted is recognized as an offense of a civil na- 
 ture and so punishable by penitentiary confinement for more than 
 one year by some statute of the United States of general applica- 
 tion within the continental United States (excepting sec. 289, 
 Penal Code of the United States, 1910), or by the law of the Dis- 
 trict of Columbia, or by way of commutation of a death sentence, 
 and unless, also, the period of confinement authorized and ad- 
 judged by such court-martial is more than one year. (A. W. 42.) 
 
 (e) In time of peace, the period of confinement in a peniten- 
 tiary shall in no case exceed the maximum period prescribed by 
 the law which, under the forty-second article of war, permits 
 confinement in a penitentiary (see (d) supra) ; unless, in addi- 
 tion to the offense so punishable under such law, the accused shall 
 have been convicted at the same time of one or more other of- 
 fenses. (A. W. 45.) 
 
 Exception. When a sentence of confinement is adjudged by a 
 court-martial upon conviction of two or more acts or omissions 
 any one of which is punishable by confinement in a penitentiary, 
 the entire sentence of confinement may be executed in a peni- 
 tentiary. 
 
 32 
 
COURTS-MARTIAL JURISDICTION. ^f 41 
 
 NOTE 1. The death penalty is mandatory in the case of spies (A. 
 W. 82) ; dismissal is mandatory for conduct unbecoming an officer and 
 gentleman (A. W. 95) ; either death or imprisonment for life is manda- 
 tory for murder and rape (A. W. 92) ; punishment is mandatory in 
 part and discretionary in part for false muster (A. W. 56) ; false re- 
 turns (A. W. 57), officer drunk on duty in time of war (A. W. 85), 
 and personal interest in the sale of provisions (A. W. 87). For 
 limits of punishment fixed by the President under A. W. 45, see Chap- 
 ter XIII, infra, Punishments. 
 
 NOTE 2. For discussion of places of confinement and of peniten- 
 tiary confinement, and of the War Department policy regarding 
 punishments, see Chapter XIII, post, " Punishments," Sections H 
 and in. 
 
 NOTE 3. For a conviction where the death penalty is mandatory, 
 or for a sentence of death, a unanimous vote of all the members of 
 the court present is required; and for a sentence to life imprison- 
 ment, or to confinement for more than 10 years, a three-fourths vote. 
 All other convictions and sentences require a two-thirds vote. (A. 
 W. 43.) See, infra, par. 308. 
 
 NOTE 4. An officer may not be sentenced to a reduction in rank; 
 since that would involve the power of appointment to the lower 
 grade, which is beyond the power of the court. 
 
 SECTION III. 
 JURISDICTION OF SPECIAL COURTS-MARTIAL. 
 
 41. PERSONS AND OFFENSES. Special courts-martial shall 
 have power (A. W. 13) to try 
 
 (1) Any person subject to military law, except 
 
 Any person subject to military law belonging to a 
 class or classes excepted by the President, by regula- 
 tions, for 
 
 (2) Any crime or offense (not capital) made punishable 
 by the Articles of War. 
 
 NOTE. For classes of persons exempted by the President, by reg- 
 ulations, from the jurisdiction of special courts-martial, see Appen- 
 dix 21. 
 
 The following are capital crimes and offenses under the 
 Articles of War, viz : 
 
 (1) At all times. (a) Assaulting or disobeying a 
 superior officer (A. W. 64) ; (b) mutiny or se- 
 dition (A. W. 66) ; (c) failure to suppress 
 mutiny or sedition (A. W. 67) ; (d) murder, 
 rape (A. W. 92). 
 
 33 
 21358 20 3 
 
H 4 la CHAPTER IV. 
 
 (2) War offenses. (a) Desertion (A. W. 58) ; (6) 
 advising or aiding another to desert (A. W. 
 59) ; (c) misbehavior before the enemy (A. W. 
 75) ; (d) compelling or attempting to compel a 
 commander to surrender (A. W. 76) ; (e) im- 
 proper use of countersign (A. W. 77) ; (/) forc- 
 ing a safeguard (A. W. 78) ; (g) relieving, cor- 
 responding with, or aiding the enemy, or at- 
 tempting to relieve the enemy (A. W. 81) ; (h) 
 spies (A. W. 82) ; (i) misbehavior of sentinel 
 (A. W. 86). 
 
 41 a. The second proviso to the twelfth article of war, which 
 was added by the revision of 1920, provides 
 
 " That the officer competent to appoint a general court- 
 martial for the trial of any particular case may, when in 
 his judgment the interest of the service shall so require, 
 cause any case to be tried by a special court-martial not- 
 withstanding the limitations upon the jurisdiction of the 
 special court-martial as to offenses set out in article 13; 
 but the limitations upon jurisdiction as to persons and 
 upon punishing power set out in said article shall be ob- 
 served." 
 
 The purpose of the amendment is to enlarge the jurisdiction 
 of the special court-martial to embrace all offenses committed 
 by any person subject to military law, except persons belonging 
 to any class or classes exempted from the jurisdiction of the spe- 
 cial court-martial by the President by regulations. It does not 
 enlarge the punishing powers of the special court-martial. 
 " The fundamental idea is that many of our articles denounce 
 offenses as capital, which, when committed under certain cir- 
 cumstances, are really of no vital import to the service. The 
 amendment" confides "to the officer exercising general court- 
 martial jurisdiction a discretion whereby he may either send cases 
 before a general court or have them disposed of by one of the 
 inferior courts. The effect of this modification ought to be a very 
 considerable reduction in the number of cases tried by general 
 courts-martial." (Report, Kernan Board, p. 21.) 
 
COURTS-MARTIAL JURISDICTION. If 42 
 
 42. LIMITS OF PUNISHBIENT. A special court-martial shall 
 not have power to adjudge 
 
 (a) Dishonorable discharge of an enlisted man. (A 
 
 W. 108); 
 (5) Dismissal of an officer (A. W. 118) ; 
 
 (c) Confinement in excess of six months (A. W. 13) ; 
 
 nor 
 
 ( d) Forfeiture of more than two-thirds pay per month 
 
 for a period of nat exceeding six months. (A. W. 
 
 13.) 
 
 NOTE. Reduction to the ranks in the case of noncommissioned 
 officers and reduction in classification of privates may be effected by 
 sentence of special court-martial except as the Executive order con- 
 cerning maximum punishments, or this Manual, or other regula- 
 tions or War Department orders may from time to time exempt such 
 persons from the jurisdiction of special courts or may prohibit such 
 reduction. (But see Appendix 21.) 
 
 SECTION IV. 
 JURISDICTION OF SUMMARY COURTS-MARTIAL. 
 
 43. PERSONS AND OFFENSES. Summary courts-martial 
 shall have power (A. W. 14) to try 
 
 (1) Any person subject to military law, except 
 (a) An officer; 
 
 A member of the Army Nurse Corps; 
 A warrant officer; 
 An Army field clerk; 
 f e) A field clerk Quartermaster Corps^ 
 
 ! ) A cadet; 
 (g) A soldier holding the privileges of a certificate of 
 
 eligibility to promotion ; 
 
 (h) A noncommissioned officer who objects thereto 
 (without the authority of the officer competent 
 to bring him to trial before a general court- 
 martial). 
 
 NOTE. If the accused be a noncommissioned offi- 
 cer he will he asked, at the outset of the trial, 
 whether he objects to trial by summary court-martial, 
 and the fact of his being so asked, and his answer to 
 the question, will be written down in the record and 
 in the report of trial. 
 
 35 
 
^f 44 CHAPTER IV. 
 
 (i) Any person belonging to a class or classes ex- 
 cepted from the jurisdiction of summary courts- 
 martial by the President, by regulations; for 
 (2) Any crime or offense (not capital) made punishable 
 by the Articles of War. 
 
 NOTE 1. For list of capital crimes under the Articles of War see 
 Section III, paragraph 41, supra. 
 
 NOTE 2. For classes of persons exempted by the President, by 
 regulations, from the jurisdiction of summary courts-martial, see 
 Appendix 21. 
 
 44. LIMITS OF PUNISHMENT. A summary court-martial 
 shall not have power to adjudge 
 
 (a) Dishonorable discharge (A. W. 108) ; 
 
 (b) Confinement in excess of one month ; 
 
 (c) Restriction to limits for more than three months; 
 
 (d) Forfeiture of more than two-thirds of one month's 
 
 pay; nor 
 
 (e) Detention of more than two-thirds of one month's 
 
 pay. (A. W. 14.) 
 
 NOTE. Reduction to the ranks in the case of noncommissioned 
 officers and reduction in classification of privates may be effected by 
 sentence of summary court-martial, except as the Executive order 
 concerning maximum punishments, or this Manual, or other regula- 
 tions or War Department orders may from time to time exempt 
 such persons from the jurisdiction of summary courts or may prohibit 
 such reduction. (But see Appendix 21.) 
 
 SECTION V. 
 JURISDICTION OF OTHER MILITARY TRIBUNALS. 
 
 45. WHEN CONCURRENT WITH COURTS-MARTIAL. The pro- 
 visions of the articles of war conferring jurisdiction upon 
 courts-martial shall not be construed as depriving mili- 
 tary commissions, provost courts, or other military tribunals 
 of concurrent jurisdiction in respect of offenders or of- 
 fenses that by statute or by the law of war may be triable 
 by such military commissions, provost courts, or other mili- 
 tary tribunals. (A. W. 15.) 
 
 36 
 
CHAPTER V. 
 
 COURTS-MARTIALPROCEDURE PRIOR TO 
 TRIAL. 
 
 Section I: Arrest and confinement: Page. 
 
 46. Arrest or confinement of accused persons 37 
 
 47. Who may order arrests 38 
 
 48. Arrest, how executed 39 
 
 49. Status of officer In arrest 39 
 
 50. Arrest of officer without preferring charges 39 
 
 52. Arrest and confinement of soldiers 39 
 
 53. Status of warrant officer or noncommissioned officer in 
 
 arrest 40 
 
 55. Refusal to receive and keep prisoners 40 
 
 56. Placing prisoners in irons 40 
 
 57. Releasing prisoners without proper authority 41 
 
 Section II : Arrest of deserters by civil authorities : 
 
 58. Authority for apprehension 41 
 
 59. Authority of citizens other than peace officers to arrest 
 
 deserters 41 
 
 60. Minority of deserter 42 
 
 SECTION I. 
 ARREST AND CONFINEMENT. 
 
 46. ARREST OR CONFINEMENT or ACCUSED PERSONS. (a) A 
 person charged with an offense will not be placed either in arrest 
 or confinement (nor continued therein if arrested or confined at 
 any time) before trial, unless the commanding officer, in cases 
 where (1) a crime or a serious offense under the Articles of War 
 is charged, or (2) in exceptional circumstances, although the 
 charge is only of a minor offense, considers arrest or confinement 
 necessary for the purpose of holding the accused at the post or 
 of preventing his escape. 
 
 NOTE. A. W. 69 as amended Ly the code of 1920 does away with 
 prior provisions contemplating different treatment of officers and 
 enlisted men charged with offenses, and makes identical provisions 
 relating thereto for all persons subject to military law. 
 
 87 
 
H" 47 CHAPTER V. 
 
 (5) Any person placed in arrest under the provisions of 
 this article (A. W. 69) shall thereby be restricted to his 
 barracks, quarters, or tent, unless such limits shall be en- 
 larged by proper authority. Any officer or cadet who breaks 
 his arrest or who escapes from confinement, whether be- 
 fore or after trial or sentence and before he is set at liberty 
 by proper authority, shall be dismissed from the service or 
 suffer such other punishment as a court-martial may direct ; 
 and any other person subject to military law who escapes 
 from confinement or who breaks his arrest, whether before 
 or after trial or sentence and before he is set at liberty by 
 proper authority, shall be punished as a court-martial may 
 direct. (A. W. 69.) 
 
 NOTE. A failure to place a person subject to military law in arrest 
 or confinement or the disregard of any custom or formality connected 
 therewith does not affect the jurisdiction of a court. 
 
 47. WHO MAT ORDER ARRESTS. (a) Only commanding 
 officers have power to place officers in arrest, except as pro- 
 vided in A. W. 68. 
 
 NOTE. The " commanding officer " thus authorized is the com- 
 mander of the regiment, separate company, detachment, post, depart- 
 ment, etc., In which the officer is serving. Digest, p. 481, I D. 1. 
 
 (6) A trial judge advocate of a court-martial has no 
 authority to place in arrest an officer or soldier about to be 
 tried by the court, or to compel the attendance of the ac- 
 cused before the court by requiring a noncommissioned offi- 
 cer to bring him, or otherwise. These are duties which de- 
 volve upon the convening authority or upon the post com- 
 mander or other proper officer in whose custody or com- 
 mand the accused is at the time. (Digest, p. 498, IV, B, 5.) 
 
 (c) A court-martial has no control over the nature of the 
 arrest or other status of restraint of a prisoner except as 
 regards his personal freedom in its presence. It can not 
 place an accused person in arrest or confinement nor can 
 the court, even with a view to facilitate his defense, inter- 
 fere to cause a close arrest to be enlarged. The officer in 
 command is alone responsible for the prisoners in his charge. 
 (Davis, p. 62.) 
 
 But the court may, and in a proper case should, either on its 
 own motion, or on that of the trial judge advocate or of the ac- 
 
 38 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. If 48 
 
 cused or his counsel, make such recommendations on this subject, 
 to the appointing authority, as it may deem fit. 
 
 48. ARREST, How EXECUTED. An officer is placed in ar- 
 rest by his commanding officer in person or through another 
 officer, by a verbal or written order or communication, ad- 
 vising him that he is placed in arrest, or will consider him- 
 self in arrest, or words to that effect. 
 
 49. STATUS OF OFFICER IN ARREST. An officer in arrest 
 can not exercise command of any kind. He will not wear a 
 sword nor visit officially his commanding or other superior 
 officer, unless directed to do so. His applications and re- 
 quests of every nature will be made in writing. 
 
 50. ARREST OF OFFICER WITHOUT PREFERRING CHARGES. 
 Officers will not be placed in arrest for light offenses. For 
 these the censure of the commanding officer will generally 
 answer the purpose of discipline. Whenever a commanding 
 officer places an officer in arrest without preferring charges, 
 he will make a written report of his action to the brigade 
 or Coast Artillery district commander, stating the cause. 
 The brigade or Coast Artillery district commander, if he 
 thinks the occasion requires, will call on the officer arrested 
 for any explanation he may desire to make, and take such 
 other action within his authority as he may think necessary, 
 forwarding the papers, with his recommendation, to the area 
 or department commander, who will, in case a trial is not 
 deemed advisable, forward the papers to The Adjutant 
 General of the Army for file with the officer's record, or for 
 further action. In the case of officers belonging to organi- 
 zations not attached or belonging to a brigade or Coast Ar- 
 tillery district, the report will be sent directly to the officer 
 exercising general court-martial jurisdiction. 
 
 [Paragraph 51 is omitted in this revision, in view of paragraph 46> 
 supra.] 
 
 52. ARREST AND CONFINEMENT OF SOLDIERS. Except as 
 provided in A. W. 68, or when immediate restraint is neces- 
 sary, no soldier will be confined without the order of an 
 officer, who shall previously inquire into his offense; it is 
 proper, however, for a company commander to delegate to 
 noncommissioned officers of his company the power to place 
 
 39 
 
^f 35 CHAPTER V. 
 
 enlisted men in arrest as a means of restraint at the instant 
 when restraint is necessary, but such action must be reported 
 to the company commander at once. (Digest, p. 481, 1, E. 1.) 
 
 NOTE. The chief object of Congress in changing, by the code of 
 1920, the provisions of A. W. 69 relating to arrest and confinement 
 was to lessen resort to confinement, particularly of enlisted men, in 
 cases where restraint is not a necessity, either to prevent the escape 
 of the accused or to restrain him from further violence or for other 
 like reasons. No soldier or officer will be ordered into, or retained in, 
 confinement prior to trial by court-martial except where confinement 
 is necessary for one of the reasons indicated. 
 
 53. STATUS OF Warrant Officer OR NONCOMMISSIONED OFFICER 
 IN ARREST. Warrant officers and noncommissioned officers 
 will not be confined in company with privates if if can be 
 avoided. When placed in arrest, they will not be required to 
 perform any duty in which they may be called upon to ex- 
 ercise authority or control over others, and when placed in 
 confinement, they will not be sent out to work. 
 
 [Paragraph 54 omitted in this revision.'] 
 
 55. REFUSAL TO RECEIVE AND KEEP PRISONERS. No provost 
 marshal or commander of a guard shall refuse to receive 
 or keep any prisoner committed to his charge by an officer 
 belonging to the forces of the United States, provided the 
 officer committing shall, at the time, deliver an account in 
 writing, signed by himself, of the crime or offense charged 
 against the prisoner. Any officer or soldier so refusing shall 
 be punished as a court-martial may direct. (A. W. 71.) 
 
 NOTE. A. W. 72 requires every commander of a guard to submit a 
 report in writing to his commanding officer within 24 hours after the 
 confinement of a prisoner (or as soon as he is relieved from his 
 guard) showing (a) the name of such prisoner, (b) the offense charged 
 against him, and (c) the name of the officer committing him. Such 
 report is ordinarily contained in the " Guard report " and presented 
 to the commanding officer by the old officer of the day at guard mount- 
 ing. For duty of commanding officers to surrender prisoners to civil 
 authorities, see paragraph 35, supra. 
 
 56. PLACING PRISONERS IN IRONS. Prisoners will not be 
 placed in irons except in the extraordinary case of a prisoner 
 w4io, in the judgment of the commanding officer, is a 
 desperate or dangerous character, in which case report of 
 
 40 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. ^[57 
 
 action and the circumstances will be immediately made to 
 the area or department or tactical division commander. 
 When a prisoner is removed from irons a report of that 
 action will be made to the area or department or tactical di- 
 vision commander. A prisoner may be shackled or hand- 
 cuffed while being transported from one post to another, or 
 from a post to a penitentiary, when, in the judgment of the 
 officer in charge, the escape of the prisoner can not other- 
 wise be prevented. 
 
 57. RELEASING PRISONER WITHOUT PROPER AUTHORITY. 
 Any person subject to military law, who, without proper 
 authority, releases any prisoner duly committed to his 
 charge, or who, through neglect or design, suffers any 
 prisoner so committed to escape, shall be punished as a 
 court-martial may direct. (A. W. 73.) 
 
 SECTION II. 
 ARREST OF DESERTERS BY CIVIL AUTHORITIES. 
 
 58. AUTHORITY FOR APPREHENSION. It shall be lawful for 
 any civil officer having authority under the laws of the 
 United States, or of any State, Territory, District, or pos- 
 session of the United States, to arrest offenders, summarily 
 to arrest a deserter from the military service of the United 
 States and deliver him into the custody of the military au- 
 thorities of the United States. (A. W. 106.) 
 
 59. AUTHORITY OF CITIZENS OTHER THAN PEACE OFFICERS 
 TO ARREST DESERTERS. The statute conferring authority 
 upon civil officers to apprehend and deliver deserters (A. W. 
 106) should not be construed as taking away the authority 
 for their apprehension by a citizen under an order or di- 
 rection of a military officer, but the legislation should be 
 treated as providing an additional means of securing the ar- 
 rest of deserters by conferring authority upon civil officers 
 to apprehend them without military orders leaving the 
 former method still legal. The offer of reward for the ap- 
 prehension and delivery of a deserter, coupled with the act 
 of Congress which provides for the payment of such a re- 
 
 41 
 
^[60 CHAPTER V. 
 
 ward, is considered sufficient authority for the arrest of the 
 deserter by a citizen. (C-17327-A. J. A. G., July 20, 1909.) 
 60. MINORITY OF DESERTER. The right of the United 
 States to arrest and bring to trial a deserter is paramount 
 to any right of control over him by a parent on the ground 
 of his minority. (See Digest, p. 401, III, G; In re Cosenow, 
 37 Fed. Kep., 668 ; In re Kaufman, 41 Fed. Rep., 876 ; and 
 compare In re Grimley, 137 U. S., 147, and In re Morrissey, 
 137 U. S., 157.) 
 
CHAPTER VI. 
 COURTS-MARTIALPROCEDURE PRIOR TO TRIAL. 
 
 [Continued.] 
 
 Section I : Preparation of charges : Page. 
 
 61. Definitions 44 
 
 62. Who may initiate charges 44 
 
 G3. Who may prefer charges 45 
 
 64. Signing and swearing to charges 45 
 
 65. Accumulation of charges 46 
 
 66. Duplication of charges 46 
 
 67. Consolidation of charges 47 
 
 68. Refusal to submit to medical treatment 47 
 
 69. Joint charges 47 
 
 70. Charges not to be preferred upon uncorroborated con- 
 
 fession 48 
 
 71. Charges for private indebtedness 48 
 
 72. Numbering charges and specifications 49 
 
 73. Additional charges 49 
 
 74. Rules to be observed in pleading 50 
 
 (a) Statement of charge 50 
 
 (b) Statement of specification 50 
 
 (c) Alternative pleading 51 
 
 ((?) Evidence not to be pleaded 51 
 
 (e) Specific articles, when used 52 
 
 (f) Forms for charges 52 
 
 (g) Time and place 52 
 
 (7i) Christian name 53 
 
 (i) Charging under alias 53 
 
 (j) General prisoners 53 
 
 (k) Change of grade 54 
 
 (1) Written papers and oral statements 54 
 
 (m) Scandalous and disgraceful offenses 54 
 
 (n) Desertion followed by fraudulent enlistment 54 
 
 (o) Larceny and sale of public property 55 
 
 (p) Wording of statute to be followed 55 
 
 Section II : Action upon charges : 
 
 75. Submission of charges 55 
 
 76. Receipt of charges action 57 
 
 76a. Investigation of charges 58 
 
 76b. Further investigation of general court-martial charges. 66 
 
 76c. Appointment of medical board by convening authority- 68 
 
 77a. Prompt action required 72 
 
 77b. Service of charges and other papers on accused 72 
 
 78. Determination of proper trial court . 72 
 
 79. Disposition of copies of charges 73 
 
 80. Service of charges upon accused 74 
 
^[ 61 CHAPTER VI. 
 
 r 
 
 SECTION I. 
 PREPARATION OF CHARGES. 
 
 61. DEFINITIONS. A charge corresponds to a civil indict- 
 ment. It consists of two parts the technical " charge," 
 which should designate the alleged crime or offense as a vio- 
 lation of a particular article of war or other statute, and the 
 "specification," which sets forth the facts constituting the 
 same. The requisite of a charge is that it shall be laid under 
 the proper article of war or other statute ; of a specification, 
 that it shall set forth in simple and concise language facts 
 sufficient to constitute the particular offense and in such man- 
 ner as to enable a person of common understanding to know 
 what is intended. The general term " charges," in the sense 
 that the word " charge " is used in the first sentence of this 
 paragraph, includes any number of technical charges and 
 their specifications. 
 
 NOTE 1. It is to be carefully borne in mind that every specifica- 
 tion must state facts constituting some particular offense recog- 
 nized and punishable either under the articles of war or some other 
 Federal statute, civil or military, or statute for the District of Co- 
 lumbia, or at the common law as recognized in the District of Co- 
 lumbia, or by the unwritten law military, the " custom of war." 
 Otherwise the specification -is insufficient to support a sentence. 
 
 NOTE 2. For forms for charges see Appendix 6. 
 
 62. WHO MAY INITIATE CHARGES. Military charges, 
 though commonly originating with military persons, may be 
 initiated by civilians. Indeed, it is but performing a public 
 duty for a civilian who becomes cognizant of a serious offense 
 committed by any officer or soldier, or other person subject 
 to military law, to bring it to the attention of the proper 
 commander. But the law requires (A. W. 70) that charges 
 and specifications must be signed and sworn to by a person 
 subject to military law. Charges proceeding from a person 
 outside the Army and based upon testimony not in the pos- 
 session or knowledge of the military authorities, should, in 
 general, be required to be sustained by affidavits or other 
 reliable evidence, as a condition of their being adopted (Dig., 
 p. 482, II, B) ; particularly since, under the code of 1920, the 
 
 44 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL,. *[[ 63 
 
 formal charges and specifications must be substantiated by the 
 oath of the person subject to military law who adopts and form- 
 ally prefers them. 
 
 NOTE. Prior to the code of 1920 charges and specifications were 
 not required to be sworn to, but, by custom of the service, were for- 
 mally preferred by that is, authenticated by the signature of a 
 commissioned officer. The code of 1920 (A. W. 70) introduced the 
 requirement that all charges and specifications be preferred under 
 oath, and provided that they may be preferred by any person subject 
 to military law, thus doing away with the prior custom of the serv- 
 ice requiring them to be signed by a commissioned officer. 
 
 63. WHO MAY PREFER CHARGES. Any officer or soldier or 
 any other person subject to military law may prefer charges. 
 An officer is not disqualified from preferring charges by the 
 fact that he is himself under charges or in arrest (Dig., p. 
 483, II, C), or in confinement; nor is a soldier or other person 
 subject to military law disqualified from preferring charges by 
 reason of being himself under charges or in arrest or in con- 
 finement. 
 
 64. SIGNING and Swearing to CHARGES. The person pre- 
 ferring charges will sign his name following the last speci- 
 fication, adding his rank and organization in the Army, or 
 other words indicating his rank and status as a person subject 
 to military law, and will append thereto his affidavit in accord- 
 ance with the requirements of A. W. 70 and of paragraph 75, 
 infra. 
 
 NOTE. For form for affidavit see Appendix 5. 
 
 The signing of charges, like orders, with the name of an 
 officer, adding "by order of" his commander, is not permis- 
 sible since under the requirements of the code of 1920 (A. W. 
 70) no officer or other person can prefer charges unless he is 
 able to make the required oath on his own responsibility that he 
 has personal knowledge of, or has investigated the matters set 
 forth therein, and that the same are true in fact, to the best of 
 his knowledge and belief. The signature of the person pre- 
 ferring charges forms no part of the charges themselves, nor 
 does the affidavit thereto appended, but such signature and affi- 
 davit will nevertheless be copied into the record of trial by 
 a general or special court-martial in order that it may 
 
 45 
 
<[[ 65 CHAPTER VI. 
 
 affirmatively appear whether the person preferring the 
 charges (who is prinia facie the accuser) was an officer who 
 sat as a member of the court (see A. W. 8, 9), and also that it 
 may affirmatively appear in the record whether the charges 
 were preferred, signed, and sworn to in accordance with the re- 
 quirements of the law. 
 
 65. ACCUMULATION or CHARGES. It may sometimes be ex- 
 pedient, where the offenses are slight in themselves and it is 
 deemed desirable to exhibit a continued course of conduct, 
 to wait before preferring charges till a series of similar 
 acts have been committed, provided the period be not un- 
 reasonably prolonged; but, in general, charges should be 
 preferred and brought to trial immediately or presently 
 upon the commission of the offenses. Anything like an 
 accumulation or saving up of charges, through a hostile 
 animus on the part of the accuser, is discountenanced by 
 the sentiment of the service. (Digest, p. 490, II, F, 2.) 
 
 66. DUPLICATION or CHARGES. The duplication of charges 
 for the same act or omission will be avoided except when 
 by reason of lack of definite information as to available 
 evidence it may be necessary to charge the same act or omis- 
 sion as constituting two or more distinct offenses. When 
 the same act or omission in its different aspects is charged 
 as constituting two or more offenses, the court, even though 
 it arrives at a finding of guilty in respect of two or more 
 specifications, should impose punishment only with ref- 
 erence to the act or omission in its most important aspect, 
 and if this rule be not observed by the court the reviewing 
 authority should take the necessary action. Thus a soldier 
 should not be punished for disorderly conduct and for as- 
 sault when the disorderly conduct consisted in making the 
 assault. And so a person subject to military law should 
 not be charged under A. W. 61 for failure to report for a 
 routine duty at a time included in a period for which he is 
 charged with absence without leave under the same article; 
 otherwise, when the duty is not a routine duty. Routine 
 duties are those that are regularly scheduled, such as reveille, 
 retreat, stables, fatigue, schools, drills, and parades, but do 
 not include practice marches or other previously specially 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. ^ 67 
 
 appointed and important exercises of which the accused is 
 chargeable with notice. 
 
 67. CONSOLIDATION OF CHARGES. Ordinarily all the 
 charges against the accused should be consolidated into one 
 set of charges, and one trial had upon the consolidated set 
 instead of having two or more trials, one upon each set. To 
 avoid taking up unnecessarily the time of a court with 
 minor offenses, where charges are preferred for serious 
 offenses, there should not be joined with them charges for 
 minor derelictions unless the latter serve to explain the cir- 
 cumstances surrounding the serious charges. For instance, 
 charges for desertion should not ordinarily be joined with 
 charges for losing through neglect, Government property 
 of small value; nor should charges for willful disobedience 
 of the orders of a commissioned officer ordinarily be joined 
 with charges for an absence from a routine duty. 
 
 68. REFUSAL TO SUBMIT TO MEDICAL TREATMENT. An offi- 
 cer or soldier may be charged for refusing to submit to a surgical 
 or dental operation or medical or dental treatment at the hands 
 of the military authorities if it is designed to restore or increase 
 his fitness for service and is without risk of life. 
 
 A soldier who refuses to submit to a surgical operation that 
 the attending surgeon certifies is without risk to his life and 
 is necessary for the removal of a disability that prevents the 
 full performance of any or all military duties that properly can 
 be required of him will, for such refusal, be brought to trial by 
 general court-martial; but if in any such case the attending 
 surgeon is in doubt as to whether the proposed operation involves 
 risk to life the soldier will not be brought to trial, but will be 
 discharged on surgeon's certificate of disability. (Par. 53, 
 C. of 0., 1881-1915.) 
 
 69. JOINT CHARGES. Where two or more persons jointly 
 and in pursuance of a common intent commit a crime or 
 offense which can be committed by a combination of persons 
 acting in concert they may be separately charged and tried 
 for such crime or offense or may be jointly charged and 
 jointly tried. The actual presence of all of the accused 
 persons at the actual commission of the offense is not neces- 
 sary, for all who take part in the enterprise are equally 
 guilty, though they may be absent from the place of actual 
 
 47 
 
Tf 70 CHAPTER VI. 
 
 commission of the offense with which they are charged. The 
 fact that justice may require that different degrees of pun- 
 ishment be awarded to the different parties constitutes no 
 objection to such a joint prosecution. The mere fact of their 
 committing the same offense together and at the same time, 
 although material as going to show concert, does not neces- 
 sarily establish it. Thus the fact that several soldiers have 
 absented themselves together without leave will not, in the 
 absence of evidence indicating a concert of action, justify 
 their being arraigned together on a joint charge, for they 
 may merely have been availing themselves of the same con- 
 venient opportunity of leaving. Nor is desertion, unless in 
 execution of a conspiracy, chargeable as a joint offense. 
 (Digest, p. 484, II, D, 7.) In joint charges the form of 
 the charge does not differ from that in other charges. The 
 form of specification will read as follows : 
 
 In that Private , Company , - Infantry ; Private 
 
 , Company , Infantry ; and Private , Com- 
 pany , Infantry, acting jointly, and in pursuance of a 
 
 common intent, did [here allege the offense in the language prescribed 
 where the offense is committed by only one person]. 
 
 The right of challenge (including the right to one separate 
 individual peremptory challenge) may, of course, be exercised 
 separately by each of the accused. 
 
 70. CHARGES NOT TO BE PREFERRED UPON UNCORROBORATED 
 CONFESSION. Charges should not be preferred for an offense 
 unless there is some evidence other than the confession of 
 the accused that the offense has been committed. This ap- 
 plies particularly in cases of fraudulent enlistment. The 
 mere confession by the accused that he had prior service, or 
 was under a certain disability at the time he enlisted, and 
 concealed that fact, should not be made the basis for charges 
 unless there is something confirming the confession. Charges 
 should not be preferred in such cases until corroborating 
 evidence that the offense was committed has been secured, 
 or that, the existence of such evidence being ascertained, 
 the necessary steps to obtain it have been taken. (See 
 par. 225.) 
 
 71. CHARGES FOR PRIVATE INDEBTEDNESS. The military 
 authorities will not attempt to discipline officers and sol- 
 
 48 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. ^f 72 
 
 diers for failure to pay disputed private indebtedness or 
 claims that is, indebtedness or a claim where, in the opin- 
 ion of the military authorities, there is a genuine dispute as 
 to the facts or law nor will the military authorities attempt 
 to decide such disputed indebtedness or claims. If the 
 indebtedness is disputed the creditor should resort to the 
 civil courts to establish the liability. If, in the opinion of 
 the military authorities, the facts and law are undisputed and 
 there appears to the military authorities to be a private 
 indebtedness, and the officer or soldier does not claim to 
 have a legal or equitable set-off or counterclaim to urge 
 against it, an officer may be brought to trial if his failure 
 is considered to be a violation of A. W. 95 or A. W. 96, 
 and a soldier may be tried if his failure is considered to be 
 a violation of A. W. 96, but no action will be taken by the 
 military authorities to enforce payment. If an officer or 
 soldier by his conduct in incurring the indebtedness or by 
 his attitude toward it or his creditor thereafter reflect dis- 
 credit upon the service to which he belongs, he should be 
 brought to trial for his misconduct. If the facts and law, 
 in the opinion of the military authorities, are undisputed 
 and there appears to the military authorities to be no in- 
 debtedness, the department will take no further action. 
 Where a soldier was largely indebted and failed to pay his 
 indebtedness and the commanding officer denied the soldier 
 all pass privileges until the indebtedness was paid, it was held 
 that such action on the part of the commanding officer con- 
 stituted an attempt to enforce payment of the indebtedness 
 and was contrary to the policy of the War Department and 
 such action should be revoked. (Digest, p. 878, IV.) 
 
 72. NUMBERING CHARGES AND SPECIFICATIONS. Where 
 there are several specifications under one article, the usual 
 procedure is to place them all under one charge, rather than 
 to make several charges with one specification under each. 
 Where there are several specifications under one charge they 
 will be consecutively numbered, and where there are several 
 charges, the charges will be consecutively numbered. 
 
 73. ADDITIONAL CHARGES. New and separate charges 
 which are preferred after others have been preferred are 
 known in military law as " additional charges." Such 
 
 21358 20 4 49 
 
^[74 CHAPTER VI. 
 
 charges may relate to past transactions which were not 
 known by or brought to the attention of the person framing 
 the original charges at the time they were preferred ; or they 
 may, as is more frequent, arise from acts of the accused sub- 
 sequent to the time the original charges were preferred. Thus, 
 if after charges have been preferred he commits a " breach 
 of arrest," an additional charge will properly be preferred in 
 the case, and should be designated as an " additional " 
 charge. Charges of this character do not require a separate 
 trial, but may and preferably should be tried by the same 
 court that tries the original charges, and at the same time, 
 subject to the limitations regarding investigation and service 
 of charges contained in A. W. 70. (See paragraphs 75, 76, 
 78a, and 76b, infra.) If practicable to consolidate the two sets 
 of charges this should be done, otherwise the second set will 
 be denominated " additional " charges. After the court has 
 been duly sworn to try and determine " the matter now be- 
 fore it " additional charges which the accused has had no 
 notice to defend and regarding which the right to challenge 
 has not been accorded him, can not be introduced or the ac- 
 cused required to plead thereto. Such charges must await a 
 separate trial. (See Winthrop, pp. 225, 226.) 
 
 74. RULES TO BE OBSERVED IN PLEADING. (a) Statement 
 of charge. The charge should be limited to a statement of 
 the article violated, as " Violation of the fifty-eighth article 
 of war," or " Violation of the eighty-fifth article of war." 
 Common law and statutory crimes, not specified in the Arti- 
 cles of War, over which courts-martial have jurisdiction, 
 should, if not capital, be charged under A. W. 96. 
 
 (b) Statement of Specification. The specification must 
 be appropriate to the charge. The offense must be distinctly and 
 accurately described in the specification and the utmost care 
 must be exercised that every element of the offense, as denounced 
 at common law or in the article of war, or other statute, is set 
 forth. (See forms, Appendix 6.) More specifically, (1) the 
 name, rank, title, and organization of the accused person, if 
 he belongs to the Army of the United States, will be stated; 
 or if he is a civilian or other person not belonging to the Army 
 of the United States, he will be so described that it appears 
 
 50 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL,. ^f 74 
 
 that he is a person subject to military law, or that he is by 
 statute, or by the law of war, subject to trial by military 
 tribunals; and (2) the facts that constitute the offense 
 charged, and each element thereof, will be set out briefly, but 
 clearly, together with the place and time of commission. 
 The specification need not, however, possess the technical 
 nicety of, or the same fullness of detail as is required in, an 
 indictment at common law. In general, a bald statement of 
 the facts in simple and concise, but accurate, language, in any 
 such manner as to enable a person of common understanding to 
 know what is intended and for exactly what offense it is con- 
 templated the accused be tried, is sufficient; but this does not 
 dispense with the requirement that every element of the offense 
 must be set forth. The failure to set forth any essential ele- 
 ment of the offense renders the specification defective. (See 
 pars. 15S<z, and 15S&, infra.) 
 
 (c) Alternative Pleading. A specification should not 
 allege two offenses in the alternative. For example, an 
 offense under A. W. 84 can not be charged by the words, " did 
 sell or through neglect lose." If, as the result of an investi- 
 gation, there is doubt whether the property has been sold or 
 lost, both offenses may be charged under -separate specifica- 
 tions. Care will be taken in every case where an article of 
 war includes two or more offenses to see that each specifica- 
 tion alleges but a single offense. (See Digest, p. 487, II, D, 
 
 11, d.) 
 
 (d) Evidence Not to Be Pleaded. It is not technically 
 good pleading in alleging an offense to state the circum- 
 stances or evidence proving or tending to prove it, such as 
 the acts, occurrences, and matters of description, which 
 should properly form part of the testimony of witnesses; 
 but there is no objection to stating very briefly in the speci- 
 fication the immediate result or effect of the act charged as 
 a circumstance of description illustrating the character and 
 extent of the offense committed. For instance, in charging 
 a striking or doing a violence to a superior officer under 
 A. W. 64, it is allowable, in a case where the assault was 
 fatal, to add in the specification, "thereby causing his 
 death", as indicating the measure of violence employed. 
 
If 74 CHAPTER VI. 
 
 (Digest, p. 488, II, D, 14, a.) Unnecessarily "pleading the 
 evidence " does not render the specification fatally defective. 
 But circumstances thus alleged in detail, even though unneces- 
 sarily, must be proved at the trial as alleged, or exceptions must 
 be made in the finding. There is also danger of variance as to 
 details between the specification and the proof. (See par. 158b, 
 infra.) 
 
 (e) Specific Articles, When Used. When a crime or 
 offense is specifically provided for in an article of war, the 
 charge should regularly be laid under that article and not 
 under the general article, A. W. 96. This rule is particu- 
 larly to be observed when the crime or offense falls under an 
 article which prescribes a fixed punishment. (See, how- 
 ever, A. W. 37.) 
 
 NOTE. In charging offenses against cadets for violation of regula- 
 tions of the Military Academy, the offense, if covered by a specific 
 article applicable to cadets, will be laid under that article (G. O. 64, 
 War Dept, 1906) ; otherwise it will be laid under the general article. 
 
 (/) Forms for Charges. The forms for charges and 
 specifications set forth in Appendix 6 cover most of the 
 offenses that are tried by military courts and covered in the 
 maximum-punishment order. These forms should be fol- 
 lowed, in the cases to which they apply, but they are not 
 mandatory. 
 
 (g) Time and Place. The allegations of the time and 
 place of the commission of an offense should be stated as 
 accurately as possible, but where the act or acts charged 
 extend over a considerable period of time it may be necessary 
 to cover such period in the allegation. Thus, allegations of 
 "from March to September, 1887", and "from May to 
 October, 1888 ", have been countenanced in a case in which 
 the accused was charged with the neglect of a duty that 
 required continuous performance. (Digest, p. 486, II, D, 
 10, b.) So, also, it is proper to allege that an offense was 
 committed while " en route " between certain points. 
 (Digest, p. 486, II, D, 9, &.) So where the exact time or 
 place of the commission of the offense is not known it is 
 frequently preferable to allege it as having occurred "on 
 or about " a certain date or time, or " at or near " a certain 
 
 52 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL, ^f 74 
 
 locality, rather than to aver it as committed on a particular 
 day or between two specified days or at a particular place. 
 There is no defined construction to be placed upon the words 
 " on or about " as used in the allegation of time in a specifica- 
 tion. The phrase can not be said to cover any precise num- 
 ber of days or latitude in time. It is ordinarily used in 
 military pleading for the purpose of indicating some period, 
 as nearly as can be ascertained and set forth, at or during 
 which the offenses charged are believed to have been com- 
 mitted in cases where the exact day can not well be named. 
 And the same is to be said as to the use of the words " at 
 or near " in connection with the averment of place. (Digest, 
 p. 485, II, D, 9, a.) If the specification alleges the offense 
 to have been committed " on " a certain date or " at" a certain 
 place, the court in its findings may, by exceptions and substi- 
 tutions, find another date or place if the evidence supports 
 such amendments, provided the new date or place is suf- 
 ficiently near the one alleged that an injustice is not done 
 the accused. In preparing several specifications under one 
 charge, the time and place of the alleged offense will be 
 given in each specification. 
 
 (h) Christian Name. The Christian name of an accused, 
 including his middle name or names, if any, in full, if known 
 (if practicable, as appearing on his service record) , will be used 
 in preparing charges. In the case of a person in the military 
 service the name used in the charges should correspond to 
 that borne by the accused on his records or the Army register. 
 
 (i) Charging under "Alias" If the accused is known by 
 two names, as where a soldier enlists under a name different 
 from that under which he was known in his prior enlistment, 
 both the heading of the charge and the specification will 
 describe him under his true name and also under his assumed 
 name as an alias. 
 
 (j) General Prisoners. In charging a, general prisoner 
 with an offense, the form of the charge will not be changed 
 but the specification will read as follows: 
 
 In that General Prisoner A B did [here allege the 
 
 offense in the language prescribed when it is committed by an officer 
 or soldier]. 
 
 53 
 
If 74 CHAPTER VI. 
 
 It is not necessary to allege in the specification that the 
 general prisoner was formerly a soldier, was tried by a 
 general court-martial, and sentenced to dishonorable dis- 
 charge and a term of confinement, and that he committed the 
 offense while serving such confinement. The words " general 
 prisoner " necessarily import such facts. 
 
 NOTE. General prisoners are persons sentenced to dismissal or dis- 
 honorable discharge and to terras of confinement at military posts or 
 elsewhere. 
 
 (k) Change of Grade. Where the grade of accused has 
 changed since the commission of an offense, the specification 
 will read as follows: 
 
 In that Private A B , Company , Infantry, 
 
 then sergeant, Company , Infantry, did, etc. 
 
 (1) Written Papers and Oral Statements. A specification 
 in alleging the violation of an order which has been given in 
 writing, or of any written obligation as an oath of alle- 
 giance, parole, etc. should preferably set forth the writing 
 verbatim, or at least state fully its substance, and then clearly 
 specify the act or acts which constitute its alleged violation. 
 Oral statements should be alleged in as nearly the exact 
 words as possible, but should always be qualified by the 
 words " or words to that effect," or some similar expression, 
 since proof will generally vary as to some word or words, 
 particularly if some time has elapsed since the incident. A 
 similar rule obtains in cases involving insubordinate or dis- 
 respectful language. 
 
 (m) Scandalous and Disgraceful Offenses. In framing 
 charges it is permissible, under the custom of the service, 
 after alleging the facts in the specification, to add, " This 
 to the scandal and disgrace of the military service." This 
 form of charge is appropriate in cases of particularly dis- 
 graceful conduct committed in the presence of a number of 
 persons, especially civilians, or while the offender was in 
 uniform, or under other circumstances resulting in pub- 
 licity. 
 
 (n) Desertion Followed l>y Fraudulent Enlistment. En- 
 listment by a soldier in desertion is fraudulent. Such soldier 
 should be charged with desertion under A. W. 58, and with 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL, ^f 75 
 
 fraudulent enlistment under A. W. 54. (Cir. 28, War Dept., 
 1908.) A fraudulent enlistment is no defense to a charge 
 of desertion but is proof of such desertion, for a soldier can 
 not be excused from repudiating a pending contract by sub- 
 stituting another in its place. In such a case the status of 
 desertion remains, notwithstanding the deserter's presence 
 in the military service under a fraudulent enlistment, until 
 he surrenders as a deserter or is apprehended as such. For a 
 single desertion followed by a fraudulent enlistment, but one 
 specification for desertion will be preferred, in addition to 
 the specification for fraudulent enlistment. 
 
 NOTE. A. W. 28 constitutes a rule of evidence and is not a punitive 
 article. 
 
 (o) Larceny and Sale of Public Property. In cases of 
 larceny of property (not described in A. W. 94) where the 
 accused has sold the stolen property, the charges should not 
 include specifications alleging the sale except where the 
 same has been made to an innocent party and constitutes such 
 a fraud upon the purchaser as to warrant the preferment of a 
 specification based upon such fraud. Proof of a subsequent 
 sale of stolen property goes to show intent to steal, and, 
 therefore, evidence of such sale should be introduced to sup- 
 port charges of larceny, wherever available. Larceny and 
 sale of United States property in violation of A. W. 94 
 should each be charged in separate specifications, since that 
 article denounces both offenses. 
 
 (p) Wording of Statute to be Followed. Wherever prac- 
 ticable the exact words of the articles of war will be fol- 
 lowed. A person under the influence of intoxicating liquor 
 which incapacitates him mentally or physically for the 
 proper performance of duty is " drunk." Therefore, under 
 A. W. 85 the word " drunk " will be used. So in charging 
 other offenses involving drunkenness no other word or phrase 
 will be used as a substitute for "drunk." Under such 
 charges the court should not in its findings substitute such 
 phrases as " under the influence of intoxicating liquor " and 
 " intoxicating " for " drunk." 
 
 SECTION II. 
 ACTION UPON CHARGES. 
 
 75. SUBMISSION OF CHARGES. Charges for trial by courts- 
 martial may be preferred by any person subject to military law. 
 
 55 
 
^1 75 CHAPTER VI. 
 
 (A. W. 70.) They will be preferred only when the person prefer- 
 ring them either has personal knowledge of, or has investigated, 
 the matters set forth therein, and from such knowledge or in- 
 vestigation is of the opinion that there is reasonable ground for 
 believing that an offense has been committed, that the accused 
 is guilty of the offense, and that the offense can not be properly 
 or adequately dealt with in any other manner. All charges and 
 specifications must be signed by a person subject to military law, 
 and under oath either that he has personal knowledge of, or has 
 investigated, the matters set forth therein, and that the same are 
 true in fact, to the best of his knowledge and belief. (A. W. 70.) 
 All charges for trial by courts-martial will be prepared in trip- 
 licate, using the prescribed form of charge sheet for each of the 
 three copies. Should the space on the charge sheet be insuffi- 
 cient to accommodate all the charges and specifications proposed, 
 such additional sheets of ordinary paper will be used as may be 
 required. In the preparation of charges care will be taken to 
 observe the provisions of paragraphs 62, 63, 64, 65, 66, and 67, 
 supra. The charges and specifications will be signed as indi- 
 cated in the form on the prescribed charge sheet (see form, Ap- 
 pendix 5), and the affidavit thereto, in substantially the pre- 
 scribed form, will be sworn to before any officer, civil or mili- 
 tary, authorized to administer oaths (see, as to the competency 
 of military officers to administer oaths, par. 138, infra), and will 
 be forwarded, containing a list of known witnesses both for 
 and against the accused, mentioning where they may be found, 
 and a memorandum of any documentary evidence bearing upon 
 the case which may be obtainable, to the commanding officer 
 immediately exercising summary court-martial jurisdiction over 
 the command to which the accused belongs or pertains. 
 
 NOTE. The affidavit to the charges must state positively either 
 that (1) the affiant preferring the charges has personal knowledge 
 of the matters set forth therein, or else (2) that he has investigated 
 them and has thus satisfied himself of the facts. It must clearly ap- 
 pear upon which ground he places his statement of the truth of the 
 facts alleged in the charges and specifications. He is not to be per- 
 mitted to say alternatively, as to any particular specification, that he 
 either has personal knowledge or has investigated. Such an indefinite 
 statement is wholly insufficient to satisfy the requirements of A. W. 7C, 
 and will not be accepted. 
 
 56 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. If 76 
 
 He may, however, base some of the allegations in a specification, 
 or some of the specifications, on his personal knowledge, and others 
 upon his investigation of the facts. In such cases he will, in the 
 affidavit, state which are based upon personal knowledge, and which 
 upon investigation. 
 
 76. Receipt of Charges Action. Upon receiving charges pre- 
 ferred for trial by court-martial, a commanding officer will ex- 
 amine them for the purpose of determining whether, on their 
 face 
 
 (a) They are (1) signed by a person subject to military 
 law, and (2) under oath, in substantially the pre- 
 scribed form, either that the person preferring them 
 has personal knowledge of, or else that he has in- 
 vestigated, the matters set forth therein, and that 
 the same are true in fact, to the best of his knowl- 
 edge and belief, as required by the seventieth article 
 of war; 
 
 (&) That the accused therein named (1) is a person sub- 
 ject to military law and (2) belongs or pertains to 
 his command; 
 
 (c) That the charges and specifications are substantially 
 
 in the prescribed forms (see forms, Appendices 5 
 and 6) ; 
 
 (d) That each specification (1) states an oifense cogniz- 
 
 able by a court-martial and (2) is laid under the 
 appropriate article of war; and 
 
 (e) That the specifications and charges are drawn in 
 
 substantial conformity with the requirements of 
 paragraph 74, supra. 
 
 In case the charges do not appear, on their face, to be signed 
 by a person subject to military law, or if they are not properly 
 signed and sworn to, or are not in proper form, or appear to be 
 defective or irregular in any other way, the commanding officer 
 may return them for correction, or consideration, and may permit 
 them to be withdrawn or amended, or new or additional charges 
 or specifications to be preferred. In case the accused does not be- 
 long or pertain to his command, the commanding officer may 
 either return the charges, or transmit them through channels to 
 the commanding officer immediately exercising summary court- 
 martial jurisdiction over the command to which the accused be- 
 
 57 
 
<[f 76a CHAPTER vi. 
 
 longs or pertains, or may take such other proper action as cir- 
 cumstances may require, or superior authority may direct. 
 
 76a. Investigation of Charges. If the charges and specifica- 
 tions (1) appear to be in proper form, and (2) properly to allege 
 one or more offenses cognizable by a court-martial, against an 
 accused, who is (3) a person subject to military law, and (4) 
 belongs or pertains to his command, the commanding officer so 
 receiving them will proceed as follows : 
 
 1. If the accused is not an officer, and it appears to the 
 
 commanding officer that the charges are trivial or 
 inconsequential, he may disregard them ; otherwise, 
 
 2. He will consider whether the case presented is one 
 
 which he can properly dispose of under the one hun- 
 dred and fourth article of war; and, if so, he 
 will so dispose of it. (See par. 336a, infra.) Other- 
 wise, he will investigate it, as follows: 
 
 3. He will cause the person preferring the charges, to- 
 
 gether with all available witnesses mentioned in 
 the memorandum in the charges, and also the 
 accused, and any available witnesses desired by 
 the accused, and any other available witnesses 
 of whom he may learn, to appear before him 
 at a stated time (to be fixed either by standing 
 orders or otherwise), at his office or headquarters, 
 or other available place, within the next twenty- 
 four hours (except in the case of an intervening 
 Sunday or holiday, and then within the next 
 succeeding 24 hours thereafter), with all avail- 
 able documentary evidence, including the service 
 record of the accused, and will there informally 
 investigate the charges, substantially in the same 
 manner as upon a hearing before a summary 
 courbxJThe witnesses (except the accused) will be 
 sworn, but no record will be made of the testi- 
 mony, and no counsel will ordinarily appear either 
 for the accused or for the prosecution (although 
 in exceptional cases an available defense counsel 
 of a general or special court-martial, or other coun- 
 sel, may be permitted by the commanding officer, in 
 
COURTS-MARTIAL. PROCEDURE PRIOR TO TRIAL, ^f 76a 
 
 his discretion, to appear for the accused, and a trial 
 judge advocate of a general or special court-mar- 
 tial, or other officer, for the prosecution) . At such 
 investigation full opportunity will be given to the 
 accused to cross-examine the witnesses whose state- 
 ments are unfavorable to him, and to present any- 
 thing he may desire in his own behalf, either in 
 defense or mitigation; and all available witnesses 
 requested by the accused will be called and ex- 
 amined. The commanding officer will, before re- 
 ceiving any statement by the accused, carefully 
 warn him that it is not necessary for him to make 
 any statement with reference to the charges 
 against him, but that, if he does make one, it may 
 be used against him. (See par. 225b, infra.) 
 
 NOTE. If exigent circumstances make it im- 
 practicable for the commanding officer to conduct 
 any particular investigation himself, he may or- 
 der it to be made by the second in command, or 
 by such other officer as he may designate on ac- 
 count of rank, experience, and attainments. 
 
 4. If, and whenever, upon such investigation, it appears to 
 
 the commanding officer that the charges can prop- 
 erly be disposed of by him under the one hundred 
 and fourth article of war, he will so dispose of 
 them. 
 
 5. If, and whenever in the course of such informal investi- 
 
 gation, it appears to him that the charges can not 
 properly be disposed of under the one hundred and 
 fourth article of war, but are within the jurisdic- 
 diction of a summary court-martial within his 
 command, and can properly be disposed of by trial 
 by such court, and that there is probable cause for 
 trial, he will thereupon immediately, without 
 further investigation, refer the charges to a sum- 
 mary court-martial for trial. 
 
 6. If, upon such informal investigation, it appears to the 
 
 commanding officer that there is no substantial 
 evidence tending to show that an offense has been 
 committed, or no substantial evidence tending to 
 
 59 
 
76a CHAPTER vi. 
 
 show that the accused is guilty of the offense 
 charged, he (unless the accused is an officer, and 
 such commanding officer is not himself the officer 
 exercising general court-martial jurisdiction over 
 the command) will dismiss the charges; but if, in 
 any case, he finds there is substantial evidence 
 tending to show that the accused (whether or not 
 probably guilty of the offense, or some of the of- 
 fenses charged) is guilty of some other offense or 
 offenses, he may permit new or additional or 
 amended charges to be preferred (or may himself 
 prefer them), and proceed as if such new or addi- 
 tional or amended charges had been among the 
 ones originally before him. 
 7. If either 
 
 (a) The accused is an officer, and, upon such in- 
 
 formal investigation, the commanding of- 
 ficer is of opinion (1) that the charges are 
 not such as can be disposed of under the one 
 hundred and fourth article of war and (2) 
 that trial by a general court-martial will 
 probably be necessary; 
 or 
 
 (b) The accused is any person subject to military 
 
 law other than an officer, and upon such in- 
 formal investigation the commanding officer 
 is of opinion that (1) an offense has been 
 committed, and that (2) there is substan- 
 tial evidence tending to show that the ac- 
 cused is probably guilty, and that (3) the 
 charges are not such as can be disposed of 
 under the one hundred and fourth article of 
 war, or (4) by trial before a summary 
 court-martial within his command, and that 
 (5) trial by special or general court-mar- 
 tial will probably be necessary; 
 he will either himself proceed with the investiga- 
 tion either then or at such other convenient time 
 and place as he may determine, or else he will refer 
 
COURTS-MARTIAL, PROCEDURE PRIOR TO TRIAL, ^f 76a 
 
 the charges for further investigation to the sum- 
 mary court officer of the command, or to some other 
 officer (other than the officer, if any, preferring the 
 charges) whose rank, experience, and qualifications 
 are such as to fit him for the performance of this 
 important judicial duty. 
 
 NOTE. If such commanding officer is him- 
 self the officer exercising general court-martial 
 jurisdiction over the command, he will proceed in 
 case the accused is an officer, in the same way 
 as if the accused were not an officer. No author- 
 ity inferior to the officer exercising general 
 court-martial jurisdiction over the command will 
 dismiss properly drawn charges against an 
 officer, except upon disposing of them by pun- 
 ishment under the 104th Article of War. 
 8. The officer so proceeding with the investigation 
 (whether the commanding officer himself or an- 
 other officer) will examine all available witnesses 
 and documentary evidence in the same manner 
 hereinbefore directed in clause No. 3 of this 
 paragraph, except that he will, upon such exam- 
 inartion, reduce the material testimony given by 
 each witness, on direct examination and on cross- 
 examination, to a clear, succinct statement or sum- 
 mary (for form, see Appendix 18), which, in the 
 presence of the accused, will be read over to the 
 witness and signed and sworn to by him. When 
 it is not practicable to obtain personal testimony 
 from any distant witness, whose testimony is 
 deemed material, either for the prosecution or for 
 the defense, a signed written statement from such 
 witness will be obtained by the investigating 
 officer, if practicable, of the testimony which the 
 witness would give if present, and will be shown 
 to the accused, and included with the summaries 
 of the testimony of the witnesses examined in per- 
 son, among the documents returned with the re- 
 port of the investigation. Any available papers 
 or documents which may serve to throw light on 
 the case will be likewise shown to the accused. 
 
 61 
 
If 76a CHAPTER vi. 
 
 and returned with the report of the investigation. 
 Any statement made by the accused will likewise 
 be reduced to writing, and will be read over to 
 him, and he will be offered an opportunity to sign 
 it, if he so desires, but he will not be required to 
 do so, and will be advised that it is not necessary 
 for him to do so. Care will be taken to insure 
 that the accused is fully advised of the nature of 
 the offense, or offenses, charged against him, and 
 of all his legal rights in the premises. 
 
 An officer charged with the important duty of 
 investigating charges for trial by court-martial 
 will maintain throughout the investigation an at- 
 titude of judicial fairness, the object of his inves- 
 tigation being to prevent unjust or unnecessary 
 trials quite as much as to establish the existence 
 of facts upon which the accused may properly be 
 brought to trial. 
 
 9. If the commanding officer shall determine, in accord- 
 ance with the provisions of clause 7, supra, of this 
 paragraph, either to proceed further with the in- 
 vestigation himself or to refer the charges for 
 further investigation, he will cause the accused, 
 in any case where he finds indications of mental 
 defect, derangement, or abnormality, to be brought 
 before a medical officer (who should be a psy- 
 chiatrist, if one be reasonably available) for ex- 
 amination as to his mental condition, such exami- 
 nation to concern itself solely with the mental 
 capacity and condition of the accused, with a view 
 to learning whether he suffers from any mental 
 defect or derangement marking him as either tem- 
 porarily or permanently abnormal or peculiar from 
 the medical point of view. In such medical exami- 
 nation no attempt will be made to define his legal 
 responsibility for crime or to apply any legal tests 
 or definitions, but the examination will be directed 
 solely to ascertain whether in his mental condition 
 
 62 
 
COURTS- MARTIAL PROCEDURE PRIOR TO TRIAL. *([ 76<1 
 
 there is any feature of abnormality which renders 
 him not susceptible to ordinary human motives or 
 appreciations of right or wrong, or to the normal 
 control of his actions, and as to whether he is 
 capable of conducting his defense intelligently. 
 The medical examiner should, however, endeavor 
 to ascertain, and should consider and weigh, the 
 accused's mental condition at the time of the act 
 charged, as well as at the time of such examina- 
 tion. The medical officer will report the result 
 of such examination to the investigating officer in 
 writing, stating his opinion as to the subjects to 
 be considered by him as hereinbefore prescribed, 
 and giving his reasons for his opinions and con- 
 clusions; and, if he is of opinion that there is 
 substantial reason to doubt the accused's mental 
 normality and considers that a further inquiry 
 into his history is desirable, he may so recommend. 
 His report will be inclosed by the investigating 
 officer, with the other papers in the case. 
 10. The investigating officer will, if practicable, complete 
 the investigation within 24 hours, or else a& 
 promptly as circumstances will permit, and (if he 
 is not himself the commanding officer) will submit 
 his report in writing to the authority appointing 
 him, inclosing the summaries of the testimony of 
 the witnesses and all the papers mentioned in any 
 of the foregoing clauses of this paragraph, and 
 recommending the disposition which he believes 
 should be made of the case. His report will be 
 in the form of an original communication, carry- 
 ing the other documents mentioned as inclosures 
 thereto, and will not be made as an indorsement 
 on the charges, on which no indorsement will be 
 made. The report will also include a reference to 
 any known document or other matter of evidence 
 not inclosed, but which it is believed may become 
 important or necessary in the case, and will also 
 include a statement of all explanatory or extenu- 
 
76a CHAPTER vi. 
 
 ating circumstances which shall have come to the 
 attention of the investigating officer. 
 
 NOTE 1. When the officer immediately exer- 
 cising summary court-martial jurisdiction over 
 the command to which the accused belongs or 
 pertains is the officer preferring the charges, he 
 will cause them to be investigated by some officer 
 other than himself before reaching a decision as 
 to their disposition; except (1) in the case of 
 new or amended or additional charges preferred 
 by him as a result of an investigation conducted 
 by him or under his direction, or (2) where he 
 decides to dispose of them under the one hundred 
 and fourth article of war or to refer them for trial 
 to a summary court-martial within his jurisdic- 
 tion; or that (3) when the officer preferring 
 the charges is the only officer with the command 
 and is of the opinion that the case is one for spe- 
 cial or general court-martial he may himself in- 
 vestigate the charges and make the prescribed 
 report. 
 
 NOTE 2. The report of the investigation, 
 summaries of the testimony of the witnesses, re- 
 port, if any, of the medical officer, and all other 
 papers prepared in connection therewith and in- 
 dorsements thereon, will be upon paper of legal- 
 cap size; and, if in typewriting, will be prepared 
 in triplicate. If in longhand, only originals will be 
 prepared, without copies, and in case of ulti- 
 mate reference to a special or general court- 
 martial for trial, two copies will be prepared at 
 the headquarters at which the reference for 
 trial is ordered. 
 
 NOTE 3. Bulky reports or official documents 
 will not ordinarily be appended or copied, but 
 listed, and the place where they may be found 
 stated in the report. 
 
 11. From this investigation the commanding officer will 
 decide what disposition is to be made of the 
 charges, and will either (1) dismiss them (unless 
 the accused is an officer and the commanding officer 
 is not himself the officer exercising general court- 
 martial jurisdiction over the command), (2) dis- 
 pose of them under the one hundred and fourth 
 article of war, (3) refer them for trial to a sum- 
 
 64 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL, ^f 76a 
 
 mary court-martial within his jurisdiction, or 
 (4) forward them for action by superior authority 
 (unless he himself has power to convene a special 
 court-martial or a general court-martial, in which 
 case he will consider and dispose of them as here- 
 inafter prescribed in the next succeeding clause of 
 this paragraph and in par. 78, infra). Unless 
 such commanding officer is the accuser or prose- 
 cutor of the person to be tried (or unless the 
 accused is an officer), he will not ordinarily 
 forward charges to superior authority, except 
 in cases where he desires to recommend trial 
 by a court-martial not within his competency to 
 appoint; all other cases he should dispose of with- 
 out reference to higher authority. Action for- 
 warding the charges to superior authority will be 
 in the form of an indorsement on the report of the 
 investigating officer, forwarding the report with 
 all accompanying papers, and inclosing the 
 charges, with his recommendations as to the dis- 
 position thereof, and with a statement of any ex- 
 planatory or extenuating circumstances which may 
 have come to his attention (except that, in case 
 the commanding officer has himself completed the 
 investigation, such communication to superior au- 
 thority will be in the form of an original com- 
 munication embodying his report of the investiga- 
 tion, with his recommendations and statement of 
 any explanatory or extenuating circumstances, 
 and inclosing the summaries of the testimony of 
 the witnesses and the other papers and documents 
 and the report, if any, of the medical officer, as 
 hereinbefore prescribed for the report of the in- 
 vestigating officer, and also inclosing the charges), 
 and inclosing any available evidence of any pre- 
 vious convictions of the accused proper to be con- 
 sidered under paragraphs 306 and 307, infra, in 
 conformity with the requirements of paragraph 306. 
 12. Each commanding officer superior to the one imme- 
 diately exercising summary court-martial jurisdic- 
 
 21358 20 5 
 
 65 
 
^j 76b GHAPTBE VI. 
 
 tion over the accused, into whose hands charges 
 may officially come, will either dismiss them, dis- 
 pose of them under the one hundred and fourth 
 article of war, refer them for trial to a court- 
 martial within his jurisdiction, or forward them 
 to the next superior authority exercising court- 
 martial jurisdiction over the command to which 
 the accused belongs or pertains, as the circum- 
 stances may appear to require. (See par. 78, 
 infra.) 
 
 NOTE. A. W. 70, as amended by the code of 1920, provides (a) 
 " No charge will be referred for trial until after a thorough and im- 
 partial investigation thereof shall have been made "; and (b) 
 " Charges and specifications must be signed by a person subject to 
 military law, and under oath either that he has personal knowl- 
 edge of, or has investigated, the matters set forth therein, and that 
 the same are true in fact, to the best of his knowledge and belief." 
 Taking these two statutory provisions together, they prohibit (1) 
 reference of any charges for trial without prior investigation (which 
 will be conducted in accordance with the provisions of the preceding 
 paragraph to which this note is appended), and (2) any commanding 
 officer from directing charges to be preferred against any person, 
 since he can not properly direct anyone to make the oath to the 
 charges required by the statute. He may, however, of course, direct 
 that any facts or the conduct of any person be looked into with a 
 view t determining whether grounds exist for preferring charges. 
 
 76b. FURTHER INVESTIGATION OF GENERAL COURT-MARTIAL 
 CHARGES. Before directing trial of any charge by general 
 court-martial or military commission, the convening author- 
 ity will refer it to his staff judge advocate for consideration 
 and advice. (A. W. 70.) Should the investigation of the 
 charges appear not to be complete and satisfactory, the 
 charges may be returned for further investigation, to be 
 conducted, reported, considered, and acted upon in like man- 
 ner as the original investigation; or, in a proper case, the 
 necessary further investigation may, when practicable, be 
 conducted in like manner by the staff judge advocate, an 
 inspector, or other suitable officer. Should any charge or 
 specification appear to be improperly drawn, the staff judge 
 advocate may secure its correction or the substitution of an- 
 other through direct correspondence or personal interview. 
 The staff judge advocate may, over the signature of the 
 
 66 
 
COURTS-MARTIAL, PROCEDURE PRIOR TO TRIAL,, ^f 76b 
 
 person preferring the charges, and without any new oath 
 thereto, make corrections in the phraseology of any charge 
 or specification, by addition, substitution, or elimination, 
 whenever such correction does not change the substantive 
 character of the charge or specification, as preferred by the 
 person signing it. He may also properly advise that new or 
 substituted specifications and charges, based upon the indi- 
 cated competent evidence, be preferred. When the charges 
 are returned J^y tho staff judge advocate to the convening 
 authority he will in writing over his signature (or over the 
 signature of an assistant staff judge advocate, with an indication 
 of approval or disapproval and any further comment or recom- 
 mendations, signed by the staff judge advocate) advise the lat- 
 ter (1) whether or not they are correct and complete in form, 
 and (2) appropriate to the indicated competent evidence in 
 the case; (3) whether or not, in his opinion, a prima facie 
 case, justifying trial or other proceedings, exists; (4) whether 
 each specification states an offense cognizable by court-martial; 
 (5) whether the indicated competent evidence justifies trial on 
 each of the several specifications and charges, and, if not on all, 
 then on which ones; (6) whether any, and if so what part, of the 
 evidence, contained in the summaries of the statements of the 
 witnesses or documents or other evidence submitted is incompe- 
 tent or improper to be introduced as evidence at the trial for 
 any reason; (7) whether, in view of the report, if any, of the 
 medical officer to the investigating officer, or on any other 
 grounds, there is reason to believe that the accused may be men- 
 tally defective or deranged, either temporarily or permanently; 
 (8) the age of the accused; and will recommend the disposition 
 which he believes should be made of the case, including particu- 
 larly whether it should be: 
 
 1. Dismissed without trial or further proceedings; 
 
 2. Disposed of under the one hundred and fourth article 
 
 of war; 
 
 3. Referred for trial to a summary court-martial; 
 
 4. Referred for trial to a special court-martial (either 
 
 under the second proviso to A. W. 12, or other- 
 wise) ; 
 
 5. Referred for trial to a general court-martial (or to a 
 
 military commission) ; 
 
 67 
 
^ 76C CHAPTER VI. 
 
 6. Disposed of by taking proper steps looking to the dis- 
 
 charge of the accused, if an enlisted man, under 
 the provisions of Army Eegulations, in case of in- 
 dicated mental defect or derangement, or in other 
 proper cases ; or if the accused be an officer or per- 
 son subject to military law other than a soldier, by 
 taking proper steps looking to his dismissal, drop- 
 ping from the rolls, or other proper procedure ; and 
 also 
 
 7. Whether a medical board should be convened under 
 
 the provisions of paragraph 76c; and 
 
 8. Whether the charges should be retained for further 
 
 investigation, or pending the recovery of the ac- 
 cused from illness or from temporary mental de- 
 rangement, or for any other purpose; or 
 
 9. The accused should be surrendered for trial to the civil 
 
 authorities, or the case disposed of in any other 
 manner than in one of the ways above mentioned; 
 and 
 
 10. In case he recommends separation of the accused from 
 
 the service without trial, on account of indicated 
 mental defect or derangement, whether (and if so, 
 what) relatives or civil authorities should be ad- 
 vised. 
 
 He will also submit a form of order designed to carry his 
 recommendations into effect. 
 
 76c. Appointment of Medical Board by Convening Author- 
 ity. Before directing the trial of any charge by general court- 
 martial or military commission the convening authority may, 'in 
 his discretion, either before or after receiving the advice of his 
 staff judge advocate upon the charges, cause a medical board to 
 be convened to examine the accused, and will do so in every case 
 where it appears to him, either in view of the report, if any, of 
 the medical officer under paragraph 76a, supra, or on any other 
 grounds, that there is reason to believe that the accused may be 
 mentally defective or deranged, either temporarily or perma- 
 nently. Such medical board will consist of such number of medi- 
 cal officers, not less than three, as the convening authority may 
 see fit, at least one of whom should, if practicable, be a psychia- 
 trist or expert in mental diseases. There is ne legal objection 
 
 68 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL, ^f 76C 
 
 to the appointment as a member of such board of the medical 
 officer or psychiatrist, if any, who examined the accused under 
 the provisions of paragraph 76a, supra. Such board will pro- 
 ceed as promptly as practicable to examine the accused, and will 
 take the accused under its personal observation for such reason- 
 able length of time as may be necessary. It will take into con- 
 sideration the report, if any, of the medical officer under para- 
 graph 78a, supra, and any other available information bearing 
 upon the purposes of the investigation, and may in case of 
 doubt extend the examination to written inquiries directed to 
 probation officers, physicians, clergymen, school and prison 
 authorities, mayors, postmasters, etc., as well as to relatives 
 and friends of the accused, for the purpose of developing 
 from any sources which it deems trustworthy any informa- 
 tion that may aid it in its investigation. Their examination 
 and investigation will be directed to, and concern itself solely 
 with, the same matter as an examination by a medical officer 
 under paragraph 76a, supra, viz, the determination of the mental 
 capacity and condition of the accused, with a view to learning 
 whether he suffers from any mental defect or derangement 
 marking him as either temporarily or permanently abnormal or 
 peculiar from the medical point of view. The board will make 
 no attempt to define or determine the legal responsibility of the 
 accused for crime, or to apply any legal tests or definitions; but 
 the examination will be directed solely (like that of an exami- 
 nation by a medical officer under par. 76a, supra) to ascertain- 
 ing whether in the accused's mental condition there is any fea- 
 ture of abnormality which renders him not susceptible to ordi- 
 nary human motives or appreciations of right or wrong, or to 
 the normal control of his actions, and as to whether he is capable 
 of conducting his defense intelligently. The board will, how- 
 ever, endeavor to ascertain, and will consider and weigh the ac- 
 cused's mental condition at the time of the offense charged, as 
 well as at the time of the board's examination. 
 
 The medical board will make a written circumstantial report 
 of its examination and investigation to the convening authority, 
 appending thereto all such written evidence and documents as it 
 may have considered. Such report will state its opinion as a 
 board, or individually if there is any difference of opinion, as 
 to the subjects to be considered by it as hereinbefore prescribed, 
 
^f 76C CHAPTER VI. 
 
 and giving its reasons for its opinions and conclusions, and 
 stating its conclusions as to the mental condition of the accused 
 at the time of the act charged and at the time of its examination 
 of him, with reference to any form of mental derangement, defect, 
 or other mental abnormality ; but will not attempt to determine 
 the accused's legal responsibility nor to apply any legal defini- 
 tion of insanity or the like, the members confining themselves to 
 the facts of the accused's mental condition as viewed by them 
 as medical men. The report should include in its description of 
 the accused's mental condition (both as to the time of the al- 
 leged commission of the offense and as to the time of their 
 examination of the accused) an opinion as to whether he lacked 
 the ordinary understanding of right and wrong and whether 
 he lacked the ordinary capacity to control himself from wrong 
 actions. 
 
 It should also specifically express an opinion as to whether or 
 not he is capable of conducting his defense intelligently; on 
 this point the inquiry relates particularly to the time of trial 
 and should consider whether the accused is mentally capable of 
 communicating intelligently with his counsel, of understanding 
 the nature of the proceedings, and of doing the things necessary 
 for an adequate presentation of his defense, 
 
 If the opinion or report, or any material part thereof, is 
 founded upon information received by correspondence or inter- 
 views, with third persons, the report will specifically so state, 
 noting briefly the data so obtained, and will mention the persons 
 giving such material information, with their names and ad- 
 dresses, so that the convening authority as well as (in case of 
 ultimate reference of the charges for trial) both the trial judge 
 advocate and the accused and Ms counsel may be informed 
 thereof, to enable them to make further inquiries and to summon 
 such persons for examination at the trial if desired. 
 
 The convening authority upon the receipt of the report of the 
 medical board will refer it to his staff judge advocate for con- 
 sideration and advice in connection with the other papers in the 
 case, and may in cases where mental defect or derangement of 
 the accused, either temporary or permanent, is indicated, and 
 where, except for such indication, reference of the charges for 
 trial would be proper, take action as follows, as he may deter- 
 mine! 
 
 70 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. ^[ 76C 
 
 1. If he concludes that the accused is at the time not 
 
 capable of conducting his defense intelligently, but 
 that after a reasonable lapse of time the accused will 
 become capable of so doing, he may direct that fur- 
 ther action on the charges be suspended for the time 
 being, pending such further action as he may after- 
 wards determine. 
 
 2. If he concludes that the accused, whether or not at the 
 
 time capable of conducting his defense intelligently, 
 is a person of such mental abnormality that the pur- 
 poses of justice and discipline will not be well served 
 by his trial and punishment, and that his further 
 continuance in the military service will be detri- 
 mental to the service, he may properly direct that 
 further action on the charges be suspended and that 
 proper steps be taken looking to the discharge or 
 retirement of the accused or his commitment to St. 
 Elizabeths Hospital, or take such other steps as may 
 be appropriate. 
 
 3. If he concludes that the accused, whether or not capa- 
 
 ble of conducting his defense intelligently, was at 
 the time of the offense charged in such an abnormal 
 mental condition that there is no probable ground 
 for finding him guilty, by reason of probable lack of 
 criminal intent as defined in subparagraph (g) of 
 paragraph 219, infra, he may properly direct that 
 the charges be dismissed, and should take such 
 further steps, if any, as the facts may suggest. 
 
 4. If he refers the charges for trial he will cause the 
 
 report of the medical board and one copy thereof to 
 be sent to the trial judge advocate with the charges 
 and the other accompanying papers. (See par, 219, 
 infra.) 
 
 NOTE. In case the accused is, without trial, discharged under 
 Army Regulations or otherwise separated from the service or 
 retired because of indicated mental defect or mental derange- 
 ment, The Adjutant General will so notify such person's rela- 
 tives and any other proper local civilian authorities with a view ta 
 enabling measures to be taken, if desired, for the proper care of 
 such person and the protection of the public. To that end, a conven- 
 
 71 
 
^[ 77a CHAPTER vi. 
 
 Ing authority directing proceedings taken with a view to the sepa- 
 ration from the service without trial of an accused person because 
 of such indicated mental defect or derangement will so advise The 
 Adjutant General, giving any available information as to the rela- 
 tives of the accused and as to local civilian officers who should 
 properly be so notified. 
 
 77a. Prompt Action Required. When any person subject to 
 military law is placed in arrest or confinement, immediate steps 
 will be taken to try the person accused or to dismiss the charges 
 and release him. Any officer who is responsible for unnecessary 
 delay in investigating or carrying the case to a final conclusion 
 shall be punished as a court-martial may direct. (A. W. 70.) If a 
 person held for trial by a general court-martial is placed in arrest 
 or confinement, the commanding officer will, within eight days 
 after the accused is arrested or confined, if practicable, forward 
 the charges to the officer exercising general court-martial juris- 
 diction and furnish the accused a copy of such charges. If the 
 same be not practicable he will report to superior authority the 
 reasons for delay. 
 
 NOTE. The provision of the law making any officer who is re- 
 sponsible for unnecessary delay in investigating or carrying a case 
 to final conclusion punishable at the discretion of a court-martial 
 (A. W. 70) was introduced by the code of 1920. 
 
 77b. Service of Charges and Other Papers on Accused. The 
 trial judge advocate will cause to be served upon the accused 
 a copy of the charges upon which trial is to be had, together 
 with the order of reference for trial and the report of the 
 investigating officer, with the summaries of the testimony of 
 the witnesses and any exhibits thereto, and the report, if any, of 
 the medical officer on the preliminary examination, and, all other 
 inclosures and indorsements thereon, including the report of 
 the staff judge advocate and the report, if any, of the medical 
 board under paragraph 76c, supra. A failure so to serve such 
 charges will be ground for continuance unless the trial be had 
 on charges theretofore otherwise officially furnished the accused. 
 (A. W. 70.) 
 
 78. DETERMINATION OF PROPER TRIAL COURT. When an 
 officer who exercises court-martial jurisdiction receives 
 charges against any person subject to military law, or triable 
 before a military tribunal under the law of war, it is his duty 
 
 72 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL,, If 79 
 
 to consider whether such trial should be by summary, 
 special, or general court-martial, or other military tribunal. 
 Subject to jurisdictional limitations, he should not withhold 
 charges from trial by special or summary court solely for 
 the reason that the maximum limit of punishment is beyond 
 the jurisdiction of such courts to impose. An officer compe- 
 tent to appoint a general court-martial may, when in his judg- 
 ment the interests of the service shall so require, cause any 
 particular case to be tried by a special court-martial notwith- 
 standing the limitations upon the jurisdiction of the special 
 court-martial as to offenses set out in A. W. 13; except that the 
 limitations upon jurisdiction as to persons and upon punishing 
 power set out in A. W. 13 must be observed. (A. W. 12.) 
 On the other hand, he should not refer to a special or sum- 
 mary court offenses which y by reason of their inherent grav- 
 ity, or of the circumstances surrounding their commission, 
 merit greater formality of trial or more condign punishment 
 than is found in the procedure or jurisdiction of such courts. 
 As a general rule no case should be tried by a special or 
 general court-martial in which, under the apparent cir- 
 cumstances of the case, adequate punishment can be imposed 
 by a summary court-martial; and no case should be tried 
 by a general court-martial in which, under the apparent 
 circumstances of the case, including the previous military 
 record of the accused, adequate punishment can be imposed 
 by a summary or special court-martial. Beyond this no 
 fixed rule can be laid down and the matter must be decided 
 after careful consideration by commanding officers, with the 
 benefit of the advice of their staff judge advocates. 
 
 79. DISPOSITION OF COPIES OF CHARGES. (a) When trial 
 is to be had by summary court martial the original charge 
 sheet (see par. 75, supra), will be completed as the record of 
 trial. This record will be delivered to the adjutant who 
 will, after noting the necessary data on the pay card of the 
 accused, initial it in the place provided and transmit it to 
 the company or other commander, who will, after making the 
 necessary entries on the service record, initial and return it to 
 the commanding officer who appointed the court, in whose office 
 it will be carefully preserved. A certified copy thereof will 
 
 73 
 
^f 80 CHAPTER VI. 
 
 be forwarded to The Adjutant General of the Army by the 
 adjutant with the memorandum of transmittal of reports 
 of changes for the day upon which the sentence was ap- 
 proved, for file with the record of the accused. The re- 
 maining copy duly certified will, with the least practicable 
 delay, be transmitted as the required report of trial to the 
 officer exercising general court-martial jurisdiction over the 
 command, there to be filed in the office of the staff judge advo- 
 cate until the statistical information required for the annual 
 report of the staff judge advocate has been secured, when it 
 may be destroyed. 
 
 (Z>) When trial is to be had by special or general court- 
 martial the charges with the order of reference for trial 
 indorsed thereon, together with the report of the investigating 
 officer with the summaries of the testimony of the witnesses 
 and the report, if any, of the medical officer on the preliminary ex- 
 amination and all other inclosures, and indorsements thereon, 
 including the report of tlic staff judge advocate, and the re- 
 port, if any, of tlie medical board under paragraph. 76c, supra, 
 and one copy of such charges and of such order of reference 
 and of all such other papers and documents will be referred 
 to the trial judge advocate direct, the copy to be furnished 
 by him to the accused (see par. 77b) ; and the other copy 
 will be used for record purposes in the office of the officer 
 appointing the court. The originals will be returned by the 
 trial judge advocate with the record of the trial to the officer 
 appointing the court, and in the case of a general court martial 
 will be forwarded with the record of trial to the Judge Advo- 
 cate General. 
 
 80. SERVICE or CHARGES UPON ACCUSED. In order that 
 the accused may have sufficient time to prepare for his de- 
 fense it is provided by A. W. 70 that in time of peace no 
 person shall, against his objection, be brought to trial be- 
 fore a general court-martial within a period of five days sub- 
 sequent to the service of charges upon him, (See par. 79b, 
 supra.) 
 
 74 
 
CHAPTER VII. 
 COURTS-MARTIALORGANIZATION. 
 
 Section I: The members: 
 
 81. Place of meeting Duties of members 76 
 
 81a. Appointment of law member for general courts- 
 martial 76 
 
 82. Uniform 77 
 
 83. Seating of court 77 
 
 84. Roll call 77 
 
 85. Absence of member 78 
 
 85a. Absence of law member 78 
 
 86. Decorum to be observed 78 
 
 87. Control of court over accused 79 
 
 88. Accused not to be tried in irons 79 
 
 89. Duties of the president 79 
 
 89a. Duties of the law member of a general court-martial- 81 
 
 90. Voting Method of 83 
 
 90a. Number of votes required Death sentence, when 
 
 lawful 84 
 
 91. Closed sessions 84 
 
 92. Sitting with closed doors 85 
 
 93. Change in membership 85 
 
 Section II : The trial judge advocate : 
 
 94. Selection 86 
 
 95. General duties 86 
 
 96. Duty toward accused 87 
 
 97. Examination of charges 88 
 
 98. Whole truth to be presented 88 
 
 99. Legal adviser of the court 88 
 
 100. Freedom in conducting case 89 
 
 101. Closed sessions 89 
 
 102. Accuser or prosecutor 89 
 
 103. Expediting trials 90 
 
 lOSa. Penalty for delay 90 
 
 104. Weekly reports 90 
 
 105. Detail of orderly 90 
 
 Section III : Assistant trial judge advocate : 
 
 106. Appointment 90 
 
 107. Duties 91 
 
 Section IIIA : The defense counsel : 
 
 107a. Selection '. 92 
 
 107b. General duties 92 
 
 107c. Whole truth to be presented 92 
 
 107d. Legal adviser to the court 93 
 
 107e. Freedom in conducting the case 93 
 
 107f. Personal interest Relief from duty 93 
 
 107g. Detail of orderly 93 
 
 75 
 
TI 81 CHAPTER VII. 
 
 Section IIIB : Assistant defense counsel : Page. 
 
 107h. Appointment 94 
 
 107L Duties 94 
 
 Section IV : Individual counsel for the accused : 
 
 108. Appointment 94 
 
 109. Duty of officer as individual counsel for the accused 95 
 109a. Opportunity to prepare for trial 90 
 
 110. Right to interview the accused 96 
 
 111. Witnesses, how questioned during trial 96 
 
 Section V: Reporter: 
 
 112. Employment 96 
 
 112a. Duties 97 
 
 113. Compensation :_ 97 
 
 Decisions (a) to (f) 97 
 
 114. Disposition of vouchers 98 
 
 115. Detail of soldier 99 
 
 116. Time limit for completing record 99 
 
 117. Carbon copies of the record 99 
 
 118. Extra compensation for clerical duties 100 
 
 Section VI: Interpreter: 
 
 119. Employment and pay 100 
 
 SECTION I. 
 THE MEMBERS. 
 
 81. PLACE OF MEETING DUTIES OF MEMBERS. The au- 
 thority appointing a general or special court-martial desig- 
 nates the place for holding the court, hour of meeting, the 
 members of the court, including the law member for every 
 general court-martial (A. W. 8), the trial judge advocate and 
 his assistants, if any, and the defense counsel and his assistants, 
 if any. A general or special court-martial assembles at its 
 first session in accordance with the order convening it ; there- 
 after, according to adjournment. Courts will be assembled 
 at posts or stations where trial will be attended with the least 
 expense. A member stationed at the place where the court 
 sits is liable to duty with his command during adjournment 
 from day to day. Subject to any instructions that may be 
 given by the authority that appoints the court, the court will 
 determine the hours of holding its sessions. 
 
 81a. Appointment of Law Member for General Courts-Mar- 
 tial. The authority appointing a general court-martial shall 
 
 76 
 
COURTS-MAKTIAL ORGANIZATION. If 82 
 
 detail as one of the members thereof a law member, who shall 
 be an officer of the Judge Advocate General's Department, except 
 that when an officer of that department is not available for the 
 purpose the appointing authority shall detail instead an officer 
 of some other branch of the service selected by the appointing 
 authority as especially qualified to perform the duties of law 
 member. 
 
 NOTE. For the duties of a law member of the court, see infra, 
 paragraph 89a, " Duties of the Law Member." 
 As to his rank, see supra, paragraph 12 (c). 
 
 82. UNIFORM. For regulations regarding uniform to be 
 worn by members of courts-martial, the trial judge advocate, 
 the assistant trial judge advocates, the defense counsel, the assist- 
 ant defense counsel, the accused, and witnesses, see Regu- 
 lations for the Uniform of the United States Army. In any 
 case of doubt (as where the court consists of members but 
 recently mustered into the service) , the president of the court 
 will designate the uniform in the notice sent to members, 
 trial judge advocate, and defense counsel, and to their assist- 
 ants, if any, notifying them of the place and hour of meeting 
 of the first session. 
 
 83. SEATING OF COURT. When the court is ready to pro- 
 ceed it is called to order by the president. Members will be 
 seated according to rank, alternately to the right and left 
 of the president; except that the law member of a general 
 court-martial (if he is not the president nor the next ranking 
 member) will be seated next to the president, on the left. The 
 trial judge advocate, the defense counsel, the assistant trial 
 judge advocates, and the assistant defense counsel, the accused, 
 and his counsel, are seated so as to be most easily seen and 
 heard by all the members of the court. The reporter should 
 be seated near the trial judge advocate. 
 
 84. ROLL CALL. At the beginning of each session the 
 trial judge advocate notes in the record the presence or ab- 
 sence of the members of the court, of the trial judge advocate 
 and assistant trial judge advocates, the defense counsel and 
 assistant defense counsel, the accused and any other counsel for 
 the accused upon calling their names or by informally noting 
 the presence or absence of each of them, (See Appendices 10 
 
 77 
 
J 85 CHAPTER VII. 
 
 and 11, forms of record of general and special courts-mar- 
 tial.) When the accused appears before the court for the 
 first time the trial judge advocate will announce his name to 
 the court, and also whether he has any counsel besides the de- 
 fense counsel and assistant defense counsel of the court, and, if 
 so, the names of such other counsel. 
 
 NOTE. For number necessary to constitute a quorum of a general 
 or special court-martial and the procedure to be taken when the 
 number is reduced below 5, see paragraph 7. 
 
 85. ABSENCE or MEMBER. A member of a court-mnrtial 
 who knows, or has reason to believe, that he will, for a 
 proper reason, be absent from a session of the court, will in- 
 form the trial judge advocate accordingly. When a member 
 of a court-martial is absent from a session thereof the trial 
 judge advocate will cause that fact, together with the reason 
 for such absence, if known, to be shown in the record of pro- 
 ceedings. If the reason for such absence is not known, or 
 disclosed at the trial, the trial judge advocate will cause the 
 record to show the member as absent, cause unknown. In 
 any event, the appointing authority will take such action, if 
 any, relative to such absence as he may deem proper. 
 
 85a. Absence of Law Member. In case of the absence of the 
 law member of a general court-martial from, or at any time dur- 
 ing, the trial of a case which has been directed to be tried with 
 the law member present, or at a portion of the trial of which the 
 law member has been present, the court will take a recess, or if 
 necessary continue the hearing until the law member or another 
 law member is present, or until directed by the convening author- 
 ity to proceed without the presence of a law member, and in case 
 of continuance, will report the facts to the convening authority. 
 
 86. DECORUM TO BE OBSERVED. Trials before courts- 
 martial will be conducted with the decorum observed in civil 
 courts. The conduct of members should accordingly be 
 dignified and attentive. Reading of newspapers or other 
 evidence of inattention by members of a court-martial dur- 
 ing its sessions constitutes a neglect of duty to the prejudice 
 of good order and military discipline. It is the duty of the 
 president of the court to admonish against such inattention, 
 and charges may be preferred against a member who does 
 
 78 
 
COURTS-MARTIAL ORGANIZATION. ^ 87 
 
 not heed the admonition. A court-martial has no power to 
 punish its members, but a member is liable to charges and 
 trial for improper conduct as for any other offense against 
 military discipline. Improper words used by a member 
 should be taken down in writing and any disorderly conduct 
 reported to the appointing authority. During the reading 
 of the order appointing the court and the arraignment the 
 trial judge advocate and Ms assistants, the defense counsel and 
 his assistants, the accused and his counsel, will stand; while 
 the court and the trial judge advocate and his assistants are 
 being sworn all persons concerned with the trial, including 
 any spectators present, will stand ; when the reporter, an in- 
 terpreter, or a witness is being sworn, he and the trial judge 
 advocate will stand; and when the trial judge advocate, the 
 defense counsel, the accused or his counsel addresses the court, 
 he will rise. (For punishment for contempts, see Chapter X, 
 Section I, par. 173.) 
 
 87. CONTROL or COURT OVER ACCUSED. A court-martial 
 has no control over the nature of the arrest or other status 
 of restraint of a prisoner except as regards his personal 
 freedom in its presence. For the relation between a court- 
 martial and the accused during trial, as regards arrest, see 
 Chapter V, Section I, particularly par. 47 (c). 
 
 88. ACCUSED NOT TO BE TRIED IN IRONS. The accused 
 should not be brought before the court in irons, unless there 
 are good reasons to believe that he will attempt to escape or 
 to conduct himself in a violent manner, but the fact that a 
 prisoner has been tried in irons can not in any case affect the 
 validity of the proceedings. 
 
 89. DUTIES OF THE PRESIDENT. A president of the court 
 will not be announced. The officer senior in rank present 
 will net as such. The president does not, by virtue of being 
 such, exercise command of any kind. He is in no sense the 
 commanding officer of the court, and can not by virtue of 
 being president give an order to a member. As the organ 
 of the court he gives the directions necessary to the regular 
 and proper conduct of the proceedings ; but a failure to com- 
 ply with a direction given by him, while it may constitute 
 a neglect to the prejudice of good order and. military dis- 
 
 79 
 
Tf 89 CHAPTER VII. 
 
 cipline, can not properly be charged as a violation of the 
 sixty- fourth article of war. (Digest, p. 508, VI, G, 3.) 
 Neither the court nor the president is authorized to place the 
 trial judge advocate or tlie defense counsel in arrest. Only 
 the proper commanding officer can impose arrest. It is the 
 duty of the commanding officer to secure the attendance of 
 the accused before the court. (Digest, p. 509, VII, C, 2; id., 
 VII, C, 3.) The president is the presiding officer of the 
 court, and as such is the organ of the court to maintain 
 order and conduct its business. In addition, he has the duties 
 and privileges of other members. He has an equal vote with 
 other members in deciding all questions submitted to a vote 
 or ballot of the court, including challenges, findings, sen- 
 tence, acquittal, and any interlocutory question submitted 
 to the vote of the court pursuant to the objection of any 
 member to a ruling of the president or of the law member under 
 A. W. 31. He speaks and acts for the court in every instance 
 where a rule of action has been prescribed by law, regula- 
 tions, or its own resolution. He administers the oath to the 
 trial judge advocate, and authenticates by his signature all 
 acts, orders, and proceedings of the court requiring it. (See 
 Winthrop, p. 249.) It is his duty to take proper steps to 
 insure prompt trial and disposition of all charges referred 
 for trial and to keep the court advised thereof. 
 
 Ruling Upon Interlocutory Questions. The president of a gen- 
 eral court-martial in the absence of the law member of the court, 
 and the president of a special court-martial in all cases, will rule 
 in open court upon all interlocutory questions, other than chal- 
 lenges, arising during the proceedings. (A. W. 31.) Under this 
 authority, conferred upon him by the thirty-first article of war as 
 amended by the code of 1920, he will open and close the court 
 (subject to any directions relating thereto given by vote of the 
 court), and will in open court, without closing the court, rule 
 upon and determine all interlocutory questions of every kind 
 (other than challenges) arising during the proceedings, including 
 questions of the admissibility of evidence, the competency of 
 witnesses, continuances, adjournments, recesses of the court, 
 motions, and other questions, and methods of procedure, such as 
 the order of the introduction of witnesses or other evidence, the 
 
 80 
 
COURTS-MARTIAL ORGANIZATION. ^f 89a 
 
 recall of witnesses for further examination, whether expert wit- 
 nesses shall be admitted or called upon any question, whether the 
 court shall view the premises where an offense is alleged to have 
 been committed, and as to the competency of children as wit- 
 nesses, or of witnesses alleged to be mentally incompetent, or 
 whether the existence of mental disease or mental derangement 
 on the part of the accused has become an issue in the trial, 
 whether the accused shall be required to submit to physical ex- 
 amination, whether any argument or statement of counsel for 
 the accused or of the trial judge advocate is improper, and all 
 other questions of every kind (except upon challenges, and the find- 
 ings and sentence of the court) ; provided, however, that if any 
 member object to any ruling of the president upon any question of 
 any kind arising during the trial or proceedings, the court shall 
 be cleared and closed and the question decided by a majority 
 vote, viva voce, beginning with the junior in rank. (A. W. 
 31.) 
 
 89a. Duties of the Law Member of a General Court-Martial. 
 (1) The law member of a general court-martial, whenever pres- 
 ent, will, instead of the president, rule in open court on all in- 
 terlocutory questions other than challenges arising during the 
 proceedings. (A. W. 31.) His ruling will be addressed to the 
 president of the court, and will take the form of a statement of 
 his opinion and his recommendations. (See form, Appendix 9.) 
 The law member will so rule upon all questions arising during the 
 proceedings, except (1) upon challenges, (2) on the findings, and 
 (3) on the sentence. 
 
 (2) On any question arising on any objection to the admissi- 
 bility of evidence offered during the trial, such ruling of the law 
 member is, by the thirty-first article of war, made the decision of 
 the court upon the question, and will be so announced by the 
 president. 
 
 (3) Upon any other interlocutory question arising during the 
 proceedings, such ruling of the law member will be accepted and 
 announced by the president as the decision of the court, unless 
 either the president or any other member of the court objects to 
 the ruling, in which case the court will be cleared and closed and 
 the question decided by a majority vote, viva voce, beginning 
 with the junior in rank. (A. W. 31.) 
 
 21358 20 6 
 
 81 
 
^[ 89a CHAPTER vii. 
 
 (4) The phrase "objection to the admissibility of evidence 
 offered during the trial," as used in A. W. 31 and in this para- 
 graph of this Manual, will not be construed to include any ques- 
 tions as to 
 
 (a) The order of the introduction of witnesses or other 
 
 evidence (including calling of witnesses on behalf 
 of the court). 
 
 (b) Recalling witnesses for further examination. 
 
 (c) Whether expert witnesses shall be admitted or called 
 
 upon any question. 
 
 (d) Whether the court shall view the premises where an 
 
 offense is alleged to have been committed. 
 
 (e) As to the competency of witnesses; as for instance, of 
 
 children, or witnesses alleged to be mentally in- 
 competent, and the like. 
 
 (f ) As to insanity of the accused. 
 
 (g) Whether the existence of mental disease or mental 
 
 derangement on the part of the accused has be- 
 come an issue in the trial, 
 (h) Whether the accused shall be required to submit to 
 
 physical examination. 
 
 (i) Whether any argument or statement of counsel for 
 the accused, or of the trial judge advocate, is im- 
 proper, 
 (j) Any ruling in a case involving military strategy or 
 
 tactics or correct military action. 
 
 Upon all these questions arising at the trial, if any member 
 object to any ruling of the law member, the court will be cleared 
 and closed and the question decided by a majority vote of the 
 members, viva voce, beginning with the junior in rank. (A. 
 W. 31.) 
 
 (5) The phrase "interlocutory questions," as used in the 
 thirty-first article of war and in this paragraph, will be deemed 
 to include all questions of any kind arising at any time during 
 the trial or proceedings while the court is convened in open or 
 closed session, except the action of the court on challenges, on 
 the findings, and on the sentence. (A. W. 31.) 
 
 (6) In addition, the law member has the duties and privileges 
 of other members of the court. He has an equal vote with other 
 
 82 
 
COURTS-MARTIAL ORGANIZATION. ^f 90 
 
 members in deciding all questions submitted to a vote or ballot 
 of the court, including challenges, findings, sentence, acquittal, 
 and any interlocutory questions submitted to a vote of the court 
 pursuant to the objection of any member to a ruling of the law 
 member under A. W. 31. 
 
 (7) The law member of a general court-martial, when pres- 
 ent, will (instead of the president) make the explanation to the 
 accused of the effect of a plea of guilty required by paragraph 
 154 (d), infra, and will advise the accused of his right to tes- 
 tify or make a statement as required by paragraph 215, infra, 
 and, in a proper case, advise the accused of his right to plead the 
 statute of limitations, as required by paragraph 149 (h), infra. 
 
 He may, like any other member of the court, put questions to 
 the witnesses which appear necessary or desirable to elucidate 
 the truth. (See as to questions by members of the court, par. 
 253a, infra.) 
 
 NOTE 1. Whenever upon the objection of a member to a ruling of 
 the law member the court is cleared and closed and proceeds to vote 
 np on a question under tlie provisions of A. W. 31, the members, in 
 voting upon the question, will bear in mind that while the court as a 
 whole are responsible for the legality of their decisions, they should 
 ordinarily be guided j,y th e opinion of the law member upon any 
 point of law or procedure, and should not overrule it except for very 
 weighty reasons, nor without considering the grave consequences 
 which may result from a disregard of his advice on any legal point. 
 The court in sustaining the opinion of the law member on any ques- 
 tion may enter in the record that they have so decided in consequence 
 of that opinion. 
 
 90. Method of VOTING. (a) On voting upon any interlocu- 
 tory question other than challenges arising during tha proceed- 
 ings the members of the court shall vote, viva voce, beginning 
 with the junior in rank, and the question shall be decided by 
 majority vote; a tie vote on any objection or motion is a vote 
 in the negative. The objection or motion is not sustained, 
 (b) Voting by members of a general or special court-martial 
 upon questions of challenge, on the findings, and on the sentence, 
 shall be by secret written ballot. (A. W. 31.) The junior mem- 
 ber of the court shall in each case count the votes, which count 
 shall be checked by the president, who will forthwith announce 
 the result of the ballot to the members of the court. A tie vote 
 on a challenge is a vote in the negative; the challenge is 
 
^f 90a CHAPTER vii. 
 
 not sustained. When the offense charged includes a minor 
 offense, voting shall first be had upon the major offense. In 
 all deliberations, including those on challenges, findings, sen- 
 tence, acquittal, and adjournments, the law secures the abso- 
 lute equality of the members, neither the president nor the 
 law member having any greater rights in such matters than 
 any other member (although, as already stated [see par. 8Sa, 
 supra], the other members should not disregard the opinion of 
 the law member of a general court-martial on a legal question 
 arising in the trial, except for very weighty reasons). 
 
 90a. Number of Votes Required Death Sentence When Law- 
 ful. No person shall, by general court-martial, be convicted of 
 an offense for which the death penalty is made mandatory by 
 law, nor sentenced to suffer death, except by the concurrence of 
 all the members of said court-martial present at the time the 
 vote is taken, and for an offense expressly made punishable by 
 death by the articles of war. No person shall be sentenced to 
 life imprisonment, nor to confinement for more than 10 years, 
 except by the concurrence of three-fourths of all of the members 
 of the court present at the time the vote is taken. All other 
 convictions and sentences, whether by general or special court- 
 martial, may be determined by a two-thirds vote of those mem- 
 bers of the court present at the time the vote is taken. All 
 other questions shall be determined by a majority vote. 
 
 Refusal to vote on any question arising during the pro- 
 ceedings constitutes a neglect to the prejudice of good order 
 and military discipline punishable under A. W. 96. For 
 voting on findings and sentence, see Chapter XII, Section II. 
 
 91. CLOSED SESSIONS. (a) Members take an oath not to 
 disclose or discover the vote or opinion of any particular 
 member of the court-martial upon a challenge or upon the 
 findings or sentence. (See A. W. 19.) In order to avoid 
 disclosing or discovering such vote or opinion the court is 
 closed while voting upon such questions. When the court 
 is closed all persons (including the trial judge advocate) 
 withdraw. In important cases, where delay would ensue due 
 to the number of spectators present, the court itself may 
 withdraw to another room prepared for the purpose for 
 deliberating in closed session. 
 
 84 
 
COURTS-MARTIAL. ORGANIZATION. If 92 
 
 It is not necessary, however, for the court to go into closed 
 session upon a challenge where it is manifest that the action 
 thereon will be unanimous. Thus, if the accused objects to a 
 member because he preferred the charges and is the accuser 
 and the member admits the fact, or upon a peremptory chal- 
 lenge, he may be excused without going into closed session. 
 Care will be taken in such cases that no votes are taken in 
 open session, and if any member believes the matter should 
 be passed upon in closed session, it is proper for him to move 
 that the court be closed, whereupon the president will an- 
 nounce that the court will be cleared. 
 
 (b) All questions arising during the trial, except upon ques- 
 tions of challenge, on the findings, and on the sentence, will be 
 decided by the ruling of the president or the law member, as the 
 case may be, in open court, in accordance with the provisions 
 of A. W. 31, without closing the court, subject, however, to the 
 right of any member to object to the ruling (except upon those 
 questions of admissibility of evidence upon which the ruling of 
 the law member is made final by the thirty-first article of war), 
 upon which objection the court will be cleared and closed and 
 the question decided by a majority vote, viva voce, begi?ming 
 with the junior in rank. (See A. W. 31 and pars. 89 and 89a, 
 supra.) 
 
 92. SITTING WITH CLOSED DOORW. A court-martial is au- 
 thorized, in its discretion, to sit with doors closed to the 
 public. Except, however, when temporarily closed for de- 
 liberation, courts-martial in this country are almost invari- 
 ably open to the public during a trial. But in a particular 
 case, where the offenses charged were of a scandalous nature, 
 it was recommended that the court be directed to sit with 
 doors closed to the public. (Digest, p. 516, IX, C.) 
 
 93. CHANGE IN MEMBERSHIP. Although it is undesirable 
 to change the membership of a court during a trial, it is 
 within the discretion of the appointing officer in a proper 
 case to relisve members or appoint new members, including 
 the law member of a general court-martial. The promotion of 
 a member during the trial of a case does not affect his com- 
 petency as a member. He should sit according to his 
 changed rank. The rule is that no member who has been 
 
 85 
 
*[f 94 CHAPTER VII. 
 
 absent during the taking of evidence shall thereafter take 
 part in the trial ; but the nonobservance of this rule (particu- 
 larly as regards the law member of a general court) shall not 
 be construed as invalidating the proceedings of courts- 
 martial if no objection is made and the court permits the 
 member to sit. The rule, however, should be complied with 
 when practicable. Especially should a member, other than 
 the law member, who has been absent during an important 
 part of the proceedings not be permitted to resume his seat. 
 When a member who has been absent is permitted to resume 
 his seat, or a new member is added after the trial of the 
 case has begun, all proceedings and evidence during his ab- 
 sence should be read over to him in open court before the 
 case proceeds further, and the record should show this fact; 
 but in proceedings in revision the presence of any member 
 who did not vote on the findings and sentence will invalidate 
 the proceedings in revision. 
 
 SECTION II. 
 THE TRIAL JUDGE ADVOCATE. 
 
 94. SELECTION. The prompt, speedy, and thorough trial 
 of a court-martial case is largely dependent upon the trial 
 judge advocate. He will, accordingly, be carefully selected. 
 Where it can be avoided, no officer who has not had experi- 
 ence as a trial judge advocate will be detailed as trial judge 
 advocate of a general court-martial unless he has had experi- 
 ence as a member or as defense counsel of a general court- 
 martial, or as an assistant trial judge advocate of a court- 
 martial, and is otherwise qualified by character and attain- 
 ments for this duty. 
 
 95. GENERAL DUTIES. The trial judge advocate of a gen- 
 eral or special court-martial shall prosecute in the name of 
 the United States, and shall, under the direction of the court, 
 prepare the record of its proceedings. (A. W. 17.) Before 
 the court assembles the trial judge advocate will obtain a 
 suitable room for the court, see that it is in order, procure 
 the requisite stationery, summon necessary witnesses, make a 
 preliminary examination of the latter, and, as far as pos- 
 sible, systematize his plans for conducting the case. Dur- 
 
COUKTS-MAKTIAL, ORGANIZATION. ^ 96 
 
 ing the trial he executes all orders of the court; reads 
 the appointing order and any modifying orders to the 
 accused; swears the members of the court, the reporter, 
 interpreter, and all witnesses; arraigns the accused; exam- 
 ines witnesses; keeps or superintends, under the direction of 
 the court, the keeping of a complete and accurate record of 
 the proceedings ; and affixes his signature to each day's pro- 
 ceedings. Whenever the court adjourns to meet at the call 
 of the president, the trial judge advocate will notify the 
 members, as well as the defense counsel, the accused, and coun- 
 sel for the accused, of the time designated by the president 
 for reassembling. In conjunction with the president of the 
 court, he authenticates the record by his signature, and, at 
 the end of the trial, transmits the same to the reviewing 
 authority. In case the record can not be authenticated by 
 the president and trial judge advocate by reason of the death, 
 disability, or absence of either or both of them, it shall be 
 signed by a member in lieu of the president and by an assist- 
 ant trial judge advocate, if there be one, in lieu of the trial 
 judge advocate; otherwise by another member of the court. 
 (A. W. 33.) 
 
 96. DUTY TOWARD ACCUSED. It is not the office of the trial 
 judge advocate, under the articles of war as amended by the code 
 of 1920, to offer any advice to the accused; that is the duty of 
 the defense counsel of the court and of the individual counsel, 
 if any, of the accused. If, at any time prior to the trial or 
 arraignment, the trial judge advocate desires to ask how the 
 accused intends to plead, such question will be asked of the 
 defense counsel or of other counsel, if any, of the accused. The 
 trial judge advocate will in no case try to induce the accused 
 to plead guilty, or leave him to infer that if he does so his 
 punishment will be lighter. (Winthrop, p. 293.) When the 
 accused determines to plead guilty the trial judge advocate 
 will formally advise him in open court of his right to intro- 
 duce evidence in explanation or extenuation of his offense 
 and should assist him and the defense counsel and any other 
 counsel for the accused in securing it. 
 
 97. EXAMINATION OF CHARGES. The trial judge advocate 
 will note and report to the convening authority any irregu- 
 
^[98 CHAPTER VII. 
 
 larity in the order convening the court or in the charges or 
 other accompanying papers, either in substance or form. He 
 may ordinarily correct obvious mistakes of form, or slight 
 errors in names, dates, amounts, etc., but he will not, without 
 the authority of the convening officer, make substantial 
 amendments in the allegations, or reject or withdraw a charge 
 or specification or substitute a new and distinct charge for 
 one transmitted to him for trial by the proper superior (Di- 
 gest, p. 496, IV, B, 1), except as provided, infra, in paragraph 
 158 and the various subparagraphs thereunder. It is the duty 
 of the president as well as the trial judge advocate and the 
 defense counsel of every court-martial to examine carefully 
 the charges and the order of reference for trial, when referred 
 for trial, in order that an accused may not be brought to 
 trial before the wrong court. 
 
 NOTE. Any corrections in the charges made at any time, either 
 by the trial judge advocate or by the staff judge advocate will, each, 
 be carefully initialed by the officer making them. 
 
 98. WHOLE TRUTH TO BE PRESENTED. Throughout the 
 trial the trial judge advocate should do his utmost to present 
 the whole truth of the matter in question. He should oppose 
 every attempt to suppress facts or to distort them, to the 
 end that the evidence may so exhibit the case that the court 
 may render impartial justice. 
 
 99. LEGAL ADVISER OF THE COURT. While the court is in 
 open session the trial judge advocate should respectfully call 
 the attention of the court to any apparent illegalities in its 
 action, and to any apparent irregularities in its proceedings. 
 He should act as legal adviser of the court so far only as to 
 give his opinion upon any point of law arising during the 
 trial, when it is asked for by the court, in open court, but not 
 otherwise. (See, however, par. 197.) In case the accused 
 desires to plead guilty the trial judge advocate, as well as the 
 defense counsel, will, whenever necessary, invite the attention 
 of the president of the court to the fact that the effect of 
 such plea must be explained to him. (See Chap. IX, Sec. 
 II. " Pleas to the general issue.") 
 
 100. FREEDOM IN CONDUCTING CASE. The trial judge ad- 
 vocate should be left free by the court to introduce his evi- 
 
COURTS-MARTIAL ORGANIZATION. ^f 101 
 
 dence in such order as he sees fit, and in general to bring 
 cases to trial in such order as he deems expedient. (Win- 
 throp, pp. 281-284.) But, while it is not the province of the 
 court to direct or control the trial judge advocate in his prose- 
 cution of the case, it is responsible for the thorough investi- 
 gation of the case, and need not content itself with the evi- 
 dence brought out by the prosecution and defense. It is 
 proper for the court as a body or for any member to ask 
 questions of a witness if it is believed the examination al- 
 ready submitted has failed fully to develop the case. Usually 
 such questions are not asked until after the prosecution and 
 defense have fully completed their examination of the wit- 
 ness. The court may direct that the trial judge advocate recall 
 a witness, or to secure the attendance of a particular wit- 
 ness, or that he introduce evidence on a particular point. It 
 is the duty of the court to take such action if it believes that 
 thereby the facts in the case will be more clearly presented. 
 
 101. CLOSED SESSIONS. Whenever a general or special 
 court-martial shall sit in closed session, the trial judge advo- 
 cate and the assistant trial judge advocate, as well as the 
 defense counsel and the assistant defense counsel, and any 
 other counsel for the accused, shall withdraw ; and when their 
 assistance in referring to the recorded evidence is required, 
 it shall be obtained in open court, and in the presence of the 
 accused and of both the trial judge advocate and the defense 
 counsel as well as of the accused's individual counsel if there 
 be any. (A. W. 30.) If through mistake or inadvertence 
 the trial judge advocate should be present during all or a 
 part of the closed session of a court, such irregularity is, 
 subject to the provisions of A. W. 37, the ground for a 
 disapproval of the proceedings by the reviewing authority, 
 but it does not deprive the court of jurisdiction, and courts 
 of the United States do not interfere in such a case to 
 release a prisoner by a writ of habeas corpus. (Ex parte 
 Tucker, 212 Fed. Rep., 569 ; see also A. W. 37.) 
 
 102. ACCUSER OR PROSECUTOR. The trial judge advocate is 
 not challengeable ; but in case of personal interest in the 
 trial or of personal hostility toward the accused he should 
 apply to the convening authority to be relieved. 
 
If 103 CHAPTER VII. 
 
 103. EXPEDITING TRIALS. When charges have been ordered 
 to trial by a general or special court-martial they are re- 
 ferred to the trial judge advocate of the court. It is his duty 
 to bring them to trial promptly. In most cases tried by 
 court-martial the facts are few and simple, and the witnesses 
 are officers or soldiers stationed at the post where the trial 
 is had. Usually the members of the court, the trial judge 
 advocate, defense counsel, and the accused and his individual 
 counsel, if any, are stationed at the same post. In such cases 
 the trial should take place promptly. If the other official 
 duties of the trial judge advocate, the defense counsel, and 
 other counsel do not leave time to prepare cases properly and 
 to bring them to trial promptly, the president will advise the 
 commanding officer, with a view to their being relieved from 
 other duties. 
 
 103a. Penalty for Delay. Any officer responsible for unneces- 
 sary delay in investigating or carrying a case to a final conclu- 
 sion shall be punished as a court-martial may direct. (A. W. 70.) 
 
 104. WEEKLY REPORTS. On Saturday of each week each 
 trial judge advocate of a general court-martial will report, 
 through the president of the court and the commanding 
 officer, to the appointing authority, a list of charges on hand, 
 showing the date of receipt of each ; and if any case has been 
 in the hands of the trial judge advocate for more than two 
 weeks and the record of trial has not been forwarded to the 
 convening authority, the report will include a statement of 
 the reasons for the delay. No record need be made of this 
 report by the president of the court or the commanding 
 officer. 
 
 105. DETAIL OF ORDERLY. The commanding officer will de- 
 tail, when necessary, suitable soldiers as clerks or orderlies 
 to assist the trial judge advocate of a general or special 
 court-martial or military commission, or the recorder of a 
 court of inquiry. 
 
 SECTION III. 
 
 ASSISTANT TRIAL JUDGE ADVOCATE. 
 
 106. APPOINTMENT. The authority appointing a general 
 court-martial shall appoint one or more assistant trial judge 
 
 80 
 
COURTS-MARTIAL ORGANIZATION. ^f 107 
 
 advocates when necessary. (A. W. 11.) An assistant trial 
 judge advocate of a general court-martial shall be competent 
 to perform any duty devolved by law, regulation, or custom 
 of the service upon the trial judge advocate of the court. 
 (A. W. 116.) 
 
 107. DUTIES. An assistant trial judge advocate will per- 
 form such duties in connection with the trial as the trial 
 judge advocate may designate. Ordinarily he will be ex- 
 pected to assist the trial judge advocate in the preparation of 
 cases for trial, in interviewing witnesses, looking up law and 
 authorities, preparing a trial brief or memorandum for the use 
 of the trial judge advocate at the trial, and trying such less 
 important cases as the trial judge advocate may, with the con- 
 sent of the court, direct, or taking charge of the investigation 
 before trial and proof during the trial of any particular phase 
 or phases of the charges in any case, and also to relieve the 
 trial judge advocate of minor details, such as arranging for 
 a place of meeting of the court, stationery, messenger serv- 
 ice, stenographers and interpreters, subpoenaing witnesses, 
 and notifying the court and the defense counsel and ether 
 counsel for the accused of the place and hour of meeting. 
 During the trial he will be expected to see that witnesses 
 are on hand when needed, that all details of procedure are 
 observed, and the record accurately kept. As provided in 
 A. W. 33, he may, in certain cases, authenticate the record of 
 trial in lieu of the trial judge advocate; and in cases tried by 
 him where the trial judge advocate was not present he will 
 authenticate the record in lieu of the trial judge advocate. 
 While a trial judge advocate and an assistant trial judge 
 advocate will ordinarily be present during trial, if their 
 duties require the presence of either of them elsewhere, he 
 may be excused by the court, but the fact of his withdrawal 
 or absence, the reason therefor, and his return to the court 
 will be noted in the record. (See form for record of gen- 
 eral court-martial, Appendix 10.) 
 
 Wherever in this Manual the trial judge advocate of a 
 general court-martial is mentioned, the term will be under- 
 stood to include assistant trial judge advocates, if any, unless 
 the context shows clearly that a different sense is intended. 
 
 91 
 
^f 107a CHAPTER vii. 
 
 SECTION IIIA. 
 THE DEFENSE COUNSEL. 
 
 107a, Selection. The thoroughness and fairness of trials, as 
 well as the proper protection and rights of the accused before 
 and at the trial, and promptitude in the preparation and in the 
 trial, depend very largely upon the defense counsel of the court. 
 He will, accordingly, be carefully selected. Where it can be 
 avoided, no officer below the rank of captain will be detailed 
 as defense counsel of a general court-martial. 
 
 Officers so detailed should have the qualifications prescribed 
 in paragraph 94 for trial judge advocates, and should be 
 selected with the same care. 
 
 107b. General Duties. The defense counsel of a general or 
 special court-martial will assist the accused in the preparation 
 for trial and at the trial, and will examine the record of the 
 proceedings of the court each day before it is authenticated. 
 He will, as counsel for the accused, perform such duties as 
 usually devolve upon the counsel for a defendant before the civil 
 courts in criminal cases. He should guard the interests of the 
 accused by all honorable and legitimate means known to the 
 law, but should not obstruct the proceedings with frivolous and 
 manifestly useless objections or discussions. Should the accused 
 have counsel of his own selection, the defense counsel of the 
 court will, if the accused so desires, act as associate counsel for 
 the accused (A. W. 17), or will, if the accused so desires, turn 
 over the entire defense at the trial to counsel of the accused's 
 own selection, but in such case the defense counsel will never- 
 theless remain present in court and will make any suggestions 
 to the accused's counsel, for the benefit of the defense, which 
 he may think proper, and will remain ready to assist the defense 
 at any time if requested; except that, if the accused (whether 
 or not he has individual counsel) specially requests that the 
 defense counsel or any particular defense counsel take no part in 
 the case, the court will excuse him from attendance at the trial. 
 
 107c. Whole Truth to be Presented. Throughout the trial 
 the defense counsel of the court should do his utmost to present 
 
COURTS-MARTIAL ORGANIZATION. ^f 107d 
 
 the whole truth of the matter in question, and at the same time 
 to place the facts before the court in the most favorable light 
 for the accused. He, equally with the trial judge advocate, 
 should oppose every attempt to distort facts, to the end that 
 the defense may so exhibit the case that the court may render 
 impartial justice. 
 
 107d. Legal Adviser to the Court. The defense counsel of the 
 court, equally with the trial judge advocate, is a legal adviser 
 to the court. While the court is in open session the defense 
 counsel should respectfully call the attention of the court to any 
 apparent illegality in its action, and to any apparent irregularity 
 in its proceedings. He should, equally with the trial judge ad- 
 vocate, act as legal adviser of the court so far as to give his 
 opinion upon any point of law arising during the trial, when 
 it is asked for by the court. As a general rule, the court will 
 not ask for the opinion of the trial judge advocate upon any 
 question arising during the trial without also asking for that 
 of the defense counsel, and vice versa. When the legal advice 
 or assistance of the defense counsel is required it will be obtained 
 in open court. 
 
 107e. Freedom in Conducting the Case. The defense counsel 
 and other counsel for the accused should, equally with the trial 
 judge advocate, be left free by the court to introduce his evi- 
 dence in such order as he sees fit. But while it is not the prov- 
 ince of the court to direct or control the defense counsel, or 
 other counsel for the accused, in his presentation of the defense, 
 the court is responsible for the thorough investigation of the 
 case, and need not content itself with the evidence brought out 
 by the prosecution and defense. (See par. 100, supra.) 
 
 107f . Personal Interest Belief from Duty. The defense coun- 
 sel of the court is not challengeable, but in case of personal in- 
 terest in the trial or of personal hostility toward the accused or 
 toward the accuser he should apply to the convening authority 
 to be relieved. 
 
 107g. Detail of Orderly. The commanding officer will detail, 
 when necessary, suitable soldiers as clerks or orderlies to assist 
 the defense counsel of a general or special court-martial or mili- 
 tary commission, in like manner as for the trial judge advocate 
 thereof. 
 
If 107h CHAPTER VII. 
 
 SECTION IIIB. 
 ASSISTANT DEFENSE COUNSEL. 
 
 107h. Appointment. The authority appointing a general 
 court-martial shall appoint one or more assistant defense counsel 
 when necessary. (A. W. 11.) In general, the same number of 
 assistant defense counsel should be appointed for a general 
 court-martial as assistant trial judge advocates. An assistant 
 defense counsel of a general court-martial shall be competent to 
 perform any duty devolved by law, regulation, or the custom of 
 the service upon counsel for the accused (A. W. 116) or upon 
 the defense counsel of the court. 
 
 107i. An assistant defense counsel will perform such duties in 
 connection with the trial as the defense counsel of the court may 
 designate. Ordinarily he will be expected to relieve the defense 
 counsel of the court and the counsel for the accused of minor de- 
 tails, and in conjunction with the assistant trial judge advocate to 
 see that witnesses are on hand when needed, that all details of 
 procedure are observed, and that the record is properly kept. 
 He may also be entrusted by the defense counsel of the court 
 with advising the accused before trial and with the preparation 
 of the case before trial and proof during trial of any special 
 phase of the defense. While the defense counsel of the court 
 and the assistant defense counsel will ordinarily both be present 
 during trial, if their duties require the presence of either of them 
 elsewhere he may be excused by the court, but the fact of his 
 withdrawal or absence, the reason therefor, and his return to the 
 court will be noted in the record. (See form for record of gen- 
 eral court-martial, Appendix 10.) 
 
 Wherever in this Manual the defense counsel of a general 
 court-martial is mentioned, the term will be understood to in- 
 clude assistant defense counsel of the court, if any, unless the 
 context shows clearly that a different sense is intended. 
 
 SECTION IV. 
 INDIVIDUAL COUNSEL FOR THE ACCUSED. 
 
 108. APPOINTMENT. In addition to the services of the de- 
 fense counsel of the court, the accused has the right to be 
 
 04 
 
COURTS-MARTIAL, ORGANIZATION. ^ 109 
 
 represented before a general or special court-martial by 
 civilian counsel of his own selection, or by military counsel 
 of his own selection if such counsel be reasonably available. 
 Such military counsel will, if requested by the accused, be 
 detailed as soon as practicable after the charges are referred 
 for 'trial (or, in case the accused is placed under arrest or in 
 confinement, then as soon as practicable after such arrest and 
 confinement). Civilian counsel will not be provided at the 
 expense of the Government. Should the accused have counsel 
 of his own selection, either military or civilian, the defense 
 counsel and assistant defense counsel, if any, of the court, shall, 
 if the accused so desires, or unless the accused objects, act as his 
 associate counsel. (A. W. 17; and see par. 107b, supra.) When- 
 ever the accused introduces individual counsel at the trial he 
 will be asked whether he is willing to have the defense counsel 
 act as his associate counsel. Should the accused request the 
 appointment as his individual counsel of an officer stationed 
 at the station where the court sits, and such officer be not a 
 member nor trial judge advocate nor assistant trial judge 
 advocate of the court, the commanding officer will appoint 
 such officer as such individual counsel if he is reasonably 
 available. Should the commanding officer decide that the 
 officer so desired by the accused is not reasonably available, 
 the accused may appeal to the officer appointing the court, 
 whose decision shall be final. If the counsel desired by the 
 accused is not under the control of the commanding officer 
 where the trial is held, timely application for such individual 
 counsel will be submitted by the accused in writing to the 
 appointing authority, whose decision as to whether the offi- 
 cer desired is " reasonably available " is final. 
 
 109. DUTY or OFFICER AS Individual COUNSEL for the Ac- 
 cused. An officer acting as individual counsel for the accused 
 before a general or special court-martial should perform 
 such duties as usually devolve upon the counsel for a de- 
 fendant before civil courts in criminal cases. He should 
 guard the interests of the accused by all honorable and legiti- 
 mate means known to the law. He should not obstruct the 
 proceedings with frivolous and manifestly useless objections 
 or discussions. He will ordinarily, unless the accused per- 
 
If 109a CHAPTER vn. 
 
 sonally objects thereto, avail himself of the services of the 
 defense counsel of the court and assistant defense counsel, if 
 any, as associate counsel in accordance with the provisions of 
 A. W. 17. 
 
 109a. Opportunity to Prepare for Trial. Ample opportunity 
 will be given to trial judge advocate, defense counsel, and 
 individual counsel for accused properly to prepare the prose- 
 cution and defense of each case, respectively, and for that 
 purpose they will be excused from any other duty that may 
 interfere with such work. 
 
 110. RIGHT TO INTERVIEW THE ACCUSED. An accused, even 
 in close arrest, will be allowed to have such interviews with 
 the defense counsel of the court and with his individual coun- 
 sel, military or civil, as may be required in order to prepare 
 his defense. The defense counsel and other counsel for the 
 accused will also be permitted to have interviews with any 
 other person who may be a witness for the accused or for the 
 prosecution, or whose knowledge of facts may be useful to 
 the accused in preparing his trial. 
 
 111. WITNESSES, How QUESTIONED DURING THE TRIAL. 
 If the trial judge advocate personally prepares the record, 
 the defense counsel and other counsel for the accused will be 
 required to reduce his questions and arguments to writing; 
 but if the court has a stenographic reporter, counsel will be 
 allowed to question witnesses and address the court orally. 
 
 SECTION V. 
 REPORTER. 
 
 112. EMPLOYMENT. Under such regulations as the Sec- 
 retary of War may from time to time prescribe, the presi- 
 dent of a court-martial or military commission or a court 
 of inquiry shall have power to appoint a reporter, who shall 
 record the proceedings of and testimony taken before such 
 court or commission and may set down the same, in the first 
 instance, in shorthand. (A. W. 115.) Eeporters are author- 
 ized for all general courts-martial, military commissions, and 
 courts of inquiry, and for special courts-martial when the 
 
COURTS-MARTIAL, ORGANIZATION. ^ 112a 
 
 appointing authority directs that the testimony be reduced to 
 writing. 
 
 NOTE. For form of oath for reporter see paragraph 135. 
 
 112a. Duties. It is the sworn duty of a stenographic reporter 
 to take down in his notes and to transcribe into the record 
 everything that actually occurs in open court, unless otherwise 
 directed by the court itself. Neither the trial judge advocate 
 ncr counsel for the accused may direct the reporter to omit any- 
 thing, either from his notes or from his transcript thereof for 
 the record. It is the reporter's duty to disregard any such 
 instructions from anyone except the court itself. 
 
 113. COMEEK SATION DECISIONS. The reporter shall be 
 paid at the following rates of compensation by the Finance 
 Department on vouchers certified to be correct by the trial 
 judge advocate or recorder: 
 
 (a) For each day in attendance at court $5, and in addition 
 thereto 50 cents an hour for time actually spent MI court during 
 the trial or hearing. Time will be reckoned to the nearest 
 half of an hour. 
 
 (b) Twenty cents for each 100 words for transcribing 
 notes and making that portion of the original record which 
 is typewritten; but no allowance shall be made for the first 
 carbon copy of that portion of the record which is type- 
 written or for original papers which are appended as ex- 
 hibits. 
 
 (c) Fifteen cents for each 100 words for copying papers 
 material to the inquiry, and 2 cents for each 100 words for 
 each carbon copy of the same, when ordered by the court or 
 commission for its use. 
 
 (d) Two cents for each 100 words for the second and each 
 additional carbon copy of the record when authorized by the 
 convening authority. 
 
 (e) Except for such part of the journey as may be covered 
 by Government transportation, mileage at the rate authorized 
 i'or a civilian witness not in Government employ, and $4 a 
 day for expenses when the trial judge advocate or recorder 
 keeps him, at his own expense, away from his usual place 
 of employment for 24 hours or more, on public business re- 
 ferred to the court or commission, shall be allowed the re- 
 
 21358 20 7 
 
 97 
 
I] 114 CHAPTER VII. 
 
 porter for himself, and, when ordered by the court or 
 commission, for each necessary assistant. 
 
 (/) An Army field clerk, or a field clerk Quartermaster 
 Corps, warrant officer, or member of the Army Nurse Corps, is 
 not entitled to any extra pay or other compensation for services 
 as a stenographic reporter for a court-martial, court of inquiry, 
 military commission, or military board, although performed 
 while on leave of absence or any time outside of regular duty 
 hours. (Dec. of the Comp., Uov. 15, 1920; A. D. No. 5245.) 
 
 NOTE. The following decisions regal-ding compensation of reporters 
 will be observed in preparing vouchers: 
 
 (a) In determining the period for which a reporter is entitled to 
 the allowance of $3 (now $4) a day for expenses wlien kept away 
 from his usual place of employment time, should be counted from the 
 date on which he is required to leave his usual place of business by 
 the terms of his employment to the date of his return thereto, pro- 
 vided there be no unnecessary delay in the travel to and from the 
 place where the court meets. (Par. 1274, Manual Q. M. Corps, 1916.) 
 
 (&) The fact that a reporter returns each night to his home does 
 not preclude the view that he was kept away from his place of busi- 
 ness for 24 hours. He is not, however, entitled to mileage for such 
 journeys unless the sessions of the court are held on nonconsecutive 
 days. (Op. J. A. G., Sept 7, 1910.) 
 
 (c) A reporter serving two separate courts-martial on the same day 
 is entitled to have his allowances (except -mileage) computed sepa- 
 rately for each court. (Op. J. A. G., Oct .13, 1910. ) 
 
 (d) A -reporter duly employed, but who, after arrival at court, 
 performs no service, owing to adjournment, is entitled to mileage, 
 $5 for constructive attendance, and also to the additional $4 if 
 kept away from place of business for 24 hours. (See Op. J. A. G., 
 Feb. 18, 1911; June 4, 1914.) 
 
 (e) The abbreviations "Q.," standing for the word question, and 
 "A.," standing for the word answer, and all dates, as "25th" and 
 "1914," will each be counted as one word. Punctuation marks will 
 not be counted as a word. It is not necessary for the trial judge 
 advocate to count the actual number of words on every page to jus- 
 tify him in certifying the account of the reporter. He may ascer- 
 tain the total number of words by counting the words on a sufficient 
 number of pages to enable him to ascertain a fair average of the 
 number of words on a page and then ascertain the total by multiply- 
 ing this average by the number of pages. (Op. J. A. G., Oct. 22, 
 1909; Feb. 8, 1915.) 
 
 114. DISPOSITION OF VOUCHERS. The original voucher for 
 payment of the reporter will be properly completed and cer- 
 
 93 
 
COURTS-MAETIAIJ ORGANIZATION. ^f 115 
 
 tified by the trial judge advocate and will be sent for pay- 
 ment to the nearest disbursing finance officer. A carbon copy 
 of the voucher will be forwarded with the record for the in- 
 formation of the appointing authority. 
 
 NOTE.- For form of voucher for payment of reporter, see Appen- 
 dix 25, 
 
 115. DETAIL or SOLDIER. A soldier may be detailed to 
 serve as a stenographic reporter for general courts-martial, 
 courts of inquiry, and military commissions, and while so 
 serving shall receive extra pay at the rate of not exceeding 
 5 cents for each 100 words taken i,n shorthand and tran- 
 scribed, such extra pay to be met from the annual appropri- 
 ation for expenses of courts-martial. (Act of Aug. 24, 1912, 
 37 Stat. 575.) Such detail will be made only when a re- 
 porter is authorized by paragraph 112, supra, or by the ap- 
 pointing authority. 
 
 116. TIME LIMIT FOR COMPLETING RECORD. The trial 
 judge advocate or recorder shall require the reporter to fur- 
 nish the typewritten record of the proceedings of each ses- 
 sion of the court or commission (together with one carbon 
 copy of the same) not later than 24 hours after the adjourn- 
 ment of that session. The complete record will be finished, 
 indexed, bound, and ready for authentication not later than 
 48 hours after the completion of its action by the court or 
 commission on the merits of the case or hearing. 
 
 NOTE. The provisions of A. W. 70 should be borne in mind, making 
 punishable as a court-martial may direct any unnecessary delay in 
 carrying a case to final conclusion. 
 
 117. CARBON COPIES OF THE RECORD. Whenever a record 
 of a trial by court-martial is to be typewritten by a reporter, 
 the trial judge advocate will inform the accused of his 
 right to demand a copy of the record, and will require of 
 him a statement as to whether or not he desires a copy. If 
 the answer be in the affirmative, the trial judge advocate will 
 cause the reporter to prepare a carbon copy; this copy will 
 be turned over to the accused personally, whose personal writ- 
 ten receipt therefor will be attached to the record; unless the 
 accused declines to sign the receipt, in which case an affidavit of 
 the delivery of such carbon copy to the accused made by the 
 
H 118 CHAPTER VTI. 
 
 person delivering it to him, will be attached to the record of 
 trial. 
 
 118. EXTRA COMPENSATION FOR CLERICAL, DUTIES. No per- 
 son in the military or civil service of the Government can 
 lawfully receive extra compensation for clerical duties per- 
 formed for a military court, except as a reporter duly ap- 
 pointed or detailed as such, as provided in paragraphs 112 
 and 115, supra; and, except as authorized in paragraph 115, 
 no person in the civil or military service will be entitled to 
 extra compensation for service as a reporter unless such serv- 
 ice is rendered in time outside of the business hours of his 
 regular employment and does not interfere with his per- 
 formance of his regular duties. 
 
 NOTE. See, however, paragraph 113 (f), supra. 
 
 SECTION VI. 
 INTERPRETER. 
 
 119. EMPLOYMENT AND PAT. Under such regulations as 
 the Secretary of War may from time to time prescribe, the 
 president of a court-martial or military commission, or court 
 of inquiry, or a summary court, may appoint an interpreter, 
 who shall interpret for the court or commission. (A. TV 7 . 
 115.) Interpreters may be employed whenever necessary 
 without application to the appointing authority. They will 
 be allowed the pay and allowances of civilian witnesses, 
 which will be paid by the Finance Department on vouchers 
 certified by the trial judge advocate or recorder. 
 
 NOTE. For oath of interpreter see paragraph 136. 
 
 100 
 
CHAPTER VIII. 
 COURTS-MARTIALORGANIZATION. 
 
 (Continued.) 
 
 Section I: Challenges: 
 
 120. Occasion for 102 
 
 120a. Peremptory challenge 103 
 
 121. Grounds for challenge 103 
 
 (a) Principal challenges (1) to (8) 103 
 
 (?>) Challenges for favor 104 
 
 122. Challenge of new member 104 
 
 124. Member can not challenge 104 
 
 125. Procedure upon challenges 104 
 
 126. Member disqualified but not challenged 105 
 
 127. Waiver of objection 107 
 
 128. Liberality required 107 
 
 129. Member as accuser or witness for the prosecution 107 
 
 130. Member signing charges Accuser 108 
 
 131. Member of court as witness 108 
 
 Section II: Oaths: 
 
 132. Oath of members 109 
 
 (a) Oath, (ft) Affirmation, (c) Court sworn for 
 each case, (d) Additional ceremony, (e) De- 
 corum in administering oath 109 
 
 133. Oath of trial judge advocate 110 
 
 134. Oath of witness 110 
 
 (a) Oath, (&) Swearing trial judge advocate 110 
 
 135. Oath of reporter 110 
 
 136. Oath of interpreter 110 
 
 137. Oath to test competency 111 
 
 138. Oaths for administrative purposes 111 
 
 (a) R. S., Section 183, (&) A. W. 114 111 
 
 Section III : Continuances : 
 
 139. Authority for 112 
 
 140. Reason for application to be stated 112 
 
 141. Number of continuances 112 
 
 Section IV: Completion of organization: 
 
 142. When accomplished 113 
 
 101 
 
fl 120 CUAFTER, VIII. 
 
 SECTION I. 
 CHALLENGES. 
 
 120. OCCASION FOR. The composition of the court-martial 
 having been made known to the accused by the reading of 
 the appointing order, together with any orders which have 
 operated to modify the composition of the court as origi- 
 nally constituted, it becomes the duty of the trial judge advo- 
 cate on behalf of the prosecution to challenge any member of the 
 court present named in the order and modifying orders to whom 
 the prosecution objects. The trial judge advocate performs this 
 duty by challenging, in turn, each member to whom he objects. 
 Members of a general or special court-martial may be chal- 
 lenged by the trial judge advocate or by the accused, but only 
 for cause stated to the court, except that each side is entitled to 
 one peremptory challenge; but the law member of the court 
 shall not be challenged except for cause. (A. W. 18.) Chal- 
 lenges by the trial judge advocate shall ordinarily be presented 
 and decided before those by the accused are offered. The trial 
 judge advocate may use his one peremptory challenge either 
 before presenting any challenges for cause or after presenting 
 one or more challenges for cause and while he still has others 
 to present, or after presenting all his challenges for cause, at any 
 time he sees fit, until he announces his acceptance of the panel. 
 He may, if he sees fit, after challenging a member for cause, if 
 the challenge be overruled, use his peremptory challenge to 
 remove such member from the court. After a trial judge advo- 
 cate has presented all the challenges which he has to present and 
 they have been decided, or in case he does not object to any 
 member of the court, he will ask the accused whether lie objects 
 to being tried by any member present named in the order and 
 modifying orders. This question by the trial judge advocate 
 will be considered as a statement that the prosecution accepts 
 the panel as it then stands and has no further challenges to pre- 
 sent and tenders it to the accused. If the reply of the accused 
 be in the negative, the court and the trial judge advocate and 
 the assistant trial judge advocate, if any, are sworn; if, on the 
 other hand, the accused desires to object to any member or mem- 
 bers of the court, he exercises his right in this respect, in person 
 
 102 
 
COURTS-MARTIAL ORGANIZATION. ^f 12 Q& 
 
 or through counsel, by challenging, in turn, each member to 
 whom he objects, in like manner as the trial judge advocate, 
 and may likewise use his peremptory challenge at any time he 
 sees fit until he has finally accepted the panel. The court shall 
 determine the relevancy and validity of challenges for cause, 
 and shall not receive a challenge to more than one member at 
 a time. (A. W. 18.) Neither the prosecution nor the accused 
 may challenge the law member of the court except for cause. 
 Neither a summary court officer nor the trial judge advocate 
 nor the defense counsel of a general or special court-martial is 
 subject to challenge. (Digest, p, 502 IV, N; Davis, p. 85, n. 3.) 
 
 NOTE 1. The various classes of challenges far ca-ase recognized 
 at common law have been practically reduced in courts-martial prac- 
 tice to two, viz, (1) principal challenges, or those where the member 
 must be excused upon proof of the ground for challenge as alleged; 
 (2) for favor, -where the court must decide whether the facts proved 
 constitute cause'to excuse the member. 
 
 NOTE 2. For procedure of the court in ruling and voting on chal- 
 lenges see paragraph 125, infra. 
 
 120a. A peremptory challenge does not require any good 
 reason or ground therefor to exist or to be stated. 
 
 121. GROUNDS FOR CHALLENGE (a) Principal Chal- 
 lenges. In the following cases a member will be excused 
 when challenged upon proof of the fact as alleged : 
 
 (1) That lie sat as a member of a court of inquiry which 
 investigated the charges. 
 
 (2) That he has personally investigated the charges and 
 expressed an opinion thereon, or that he has formed a posi- 
 tive and definite opinion as to the guilt or innocence of the 
 accused. 
 
 (3) That he is the accuser. 
 
 (4) That he will be a witness for the prosecution or for 
 the defense. 
 
 (5) That (upon a rehearing of the case) he sat as a mem- 
 ber on the former trial. 
 
 (6) That, in the case of the trial of an officer, the member 
 will be promoted by the dismissal of the accused. 
 
 (7) That he is related by blood or marriage to the accused, 
 
 (8) That he has a declared enmity against the accused. 
 
 103 
 
Tf 122 CHAPTER VIII. 
 
 (b) Challenges for Favor. Where prejudice, hostility, 
 bias, or intimate personal friendship are alleged it is for the 
 court, after hearing the grounds for challenging stated and 
 the reply, if any, of the challenged member, as well as any 
 other evidence presented, to determine whether the grounds 
 stated and proved or admitted are sufficient in fact to dis- 
 qualify a challenged member. 
 
 122. CHALLENGE or NEW MEMBER. Where new members 
 join or are added to the court after its organization the 
 order detailing such new members shall be read and the 
 trial judge advocate and the accused be given full opportunity 
 to challenge. The record will show affirmatively that the 
 right has been accorded the accused to challenge every mem- 
 ber of the court. 
 
 Either side may use its one peremptory challenge against any 
 such new member, unless it has" already been used. 
 
 [Paragraph 123 has been omitted in this revision.] 
 
 124. MEMBER CAN NOT CHALLENGE. There is no au- 
 thority of law or custom of the service for a member of a 
 court-martial to challenge another member, but where one 
 member has knowledge of the fact that another is the ac- 
 cuser in the case or will be a witness for the prosecution, or 
 investigated the case, or is subject to challenge for any other 
 reason, he will bring the fact to the attention of the court in 
 order that proper action may be taken. (See par. 129, 
 below.) 
 
 125. PROCEDURE UPON CHALLENGES. A positive declara- 
 tion by a member challenged on the ground of prejudice or 
 interest that he is not prejudiced for or against the accused 
 nor interested in the case should ordinarily be satisfactory to 
 the trial judge advocate and the accused, and, if so, the chal- 
 lenger should be permitted to withdraw the challenge and the 
 record should so show. If, however, the statement is unsatis- 
 factory, or the member makes no response, the challenger 
 may offer testimony in support of his challenge or may sub- 
 ject the challenged member to an examination under oath 
 as to his competency as a member. In such a case the trial 
 judge advocate administers the oath to the challenged mem- 
 ber. Witnesses may be introduced in rebuttal on behalf of the 
 
 104 
 
COURTS-MARTIAL ORGANIZATION-. ^f 126 
 
 challenged member and arguments may be made. All chal- 
 lenges which are not withdrawn, except where a member is 
 challenged as the accuser or as a witness for the prosecution 
 and such fact is admitted, must be passed upon by the. court. 
 After all evidence pro or con has been received, or the chal- 
 lenger or challenged member, either or both, has declined to 
 introduce any evidence, the court will be closed, and the court 
 will deliberate and vote upon the challenge by secret written 
 ballot, which ballot may be in the form " sustained " or " not 
 sustained." The junior member of the court shall in each 
 case count the votes, which count shall be checked by the 
 president, who will announce the result of the ballot to the 
 members of the court. All ballots shall be destroyed as soon 
 as the result is announced, unless some member of the court de- 
 sires first to verify the count, when they shall be immediately 
 destroyed after such verification. A majority of the ballots cast 
 by the members present at the time the vote is taken shall de- 
 cide the question of sustaining or not sustaining the challenge. 
 (A. W. 31.) A tie vote on a challenge is a vote in the negative, 
 and the challenge is not sustained. Upon the court being 
 opened, the president shall state, in the presence of the trial 
 judge advocate, assistant trial judge advocate, defense counsel 
 and assistant defense counsel, other counsel for the accused, and 
 the accused, that the challenge has been sustained or not sus- 
 tained. The whole proceedings will, in the case of a general 
 court-martial, or a special court-martial where the evidence 
 has been ordered recorded, appear in the record; and in the 
 case of any other special court-martial, the record will show 
 that evidence touching the eligibility of the challenged member 
 was heard, if such be the fact, and that the challenge was sus- 
 tained or not sustained upon the taking of a secret ballot. 
 During the deliberation of the court the challenged member 
 will withdraw. If but four members of a general court- 
 martial, or two members of a special court-martial, remain they 
 may pass upon the challenge. (See Chap. II, Sec. II.) 
 
 NOTE. For form of oath to be administered to challenged member 
 see paragraph 137. 
 
 126. MEMBER DISQUALIFIED BUT NOT CHALLENGED. (a) 
 In the absence of a challenge the court of itself will not 
 
 105 
 
^[ 126 CHAPTER VIII. 
 
 ordinarily excuse a member from sitting on the trial of a 
 case, but a member not challenged, who has formed an opin- 
 ion concerning the case or any of the material facts thereof, 
 or who for any other reason thinks himself disqualified, or 
 who is aware of any facts which he believes might cause either 
 party to desire to challenge him, or who thinks himself dis- 
 qualified for reasons other than those indicated in paragraph 
 129, below, will announce in open court his supposed dis- 
 qualification, or the facts which he thinks miglit cause either 
 party to desire to challenge him (that is, that he has some 
 knowledge of the facts, or has formed some opinion, etc., but 
 will carefully refrain from stating his opinion as to the guilt or 
 innocence of the accused, or the particular facts of which he has 
 knowledge), in order that he may be challenged; or he may 
 apply to the appointing authority to be relieved. 
 
 (b) While a member is not, strictly speaking, " a witness " 
 within the meaning of the eighth or ninth articles of war, or of 
 this paragraph, unless he actually testifies at the trial, still, as a 
 matter of good administration and in harmony with the spirit 
 and purpose of the articles of war, a member may be excused by 
 the court without challenge, and should be so excused (unless 
 the objection is voluntarily waived by the defense) whenever it 
 appears to the court either that (1) he testified or submitted a 
 written statement on the preliminary investigation, unless at 
 the request of the accused; (2) he investigated the charges 
 either under paragraph 76a, supra, or otherwise, or made any 
 official report or indorsement expressing his opinion thereon; 
 (3) he was the medical officer before whom the accused was 
 brought for examination under the provisions of paragraph 76a, 
 supra, during the investigation of the charges, or was a member 
 of a medical board convened in the case under the provisions of 
 paragraph 76c, supra, or of paragraph 219d, infra, or has in any 
 other case where the sanity or mental condition of the accused 
 is made an issue in the trial officially expressed his opinion 
 thereon; or (4) if, on the opening of the trial or at any time 
 during the trial, the trial judge advocate announces that the 
 member is a witness for the prosecution or that it is expected 
 that he will be called as a witness for the prosecution. 
 
 NOTE 1. As to statutory disqualification see paragraphs 129 to 
 131, infra. 
 
 106 
 
COURTS-MARTIAL ORGANIZATION. ^f 127 
 
 NOTE 2. Where a member of the court was a member of a medical 
 board convened under paragraph 76c, supra, or under paragraph 219d, 
 infra, whose report is received in evidence at the trial under any of 
 the provisions of paragraph 219, infra, he thereby becomes a witness 
 within the meaning of the eighth and ninth articles of war, and is a 
 witness for the prosecution and as such disqualified to sit further on 
 the trial, if the report of such medical board (unless such member 
 signed a minority report dissenting therefrom), or a minority report 
 signed by such member, is to the effect that the accused did not at the 
 time of his examination by such medical board, nor at the time of 
 the commission of the alleged offense, suffer from any mental de- 
 fect or derangement whatever. 
 
 127. WAIVER OF OBJECTION. The rule is that challenges 
 should be made before the arraignment, and if an objection 
 to the competency of a member, except his ineligibility under 
 paragraph 129, infra, was known at that time and not made, 
 it will be considered as waived ; but if the cause of a mem- 
 ber's incompetericy was not known at the time of arraign- 
 ment or did not arise until later, the court will entertain a 
 challenge on such cause at any stage of the proceedings. 
 
 NOTE. Ineligibility under paragraph 129, infra, being mandatory 
 under the statute (A. W. 8, 9), can not be waived. If, therefore, it 
 develops, at any time during the trial, that a member is (a) an 
 accuser or (b) a witness for the prosecution, he must be excused, 
 although not challenged. 
 
 128. LIBERALITY REQUIRED. Courts should be liberal in 
 passing upon challenges, but they will not entertain an ob- 
 jection that is not specific, and they should be reluctant to 
 sustain one upon the mere assertion of the challenger, except 
 where it is admitted by the challenged member. 
 
 129. MEMBER. AS ACCUSER OR WITNESS FOR THE PROSECU- 
 TION. No officer shall be eligible to sit as a member of a. 
 general or special court-martial when he is the accuser or a 
 witness for the prosecution. (A. W. 8, 9.) After the ac- 
 cused is brought before the court, preferably before the 
 court is sworn, any member thereof who is or believes him- 
 self to be the accuser in the case will formally announce that 
 fact to the court, whereupon he will be excused. When the 
 accused, his counsel, the trial judge advocate, the defense 
 counsel, or any member of the court, at any time before the 
 sentence, shall have reason to believe that any member 
 thereof is the accuser in the case, or may be called as a wit- 
 
^f 130 CHAPTER VIII. 
 
 ness for the prosecution, such belief shall be communicated 
 to the court, and if the court, after hearing the facts, find 
 that such member is the accuser or is to be called as a witness 
 for the prosecution, he shall be excused. If at any stage 
 of the proceedings prior to the findings any member of the 
 court be called as a witness for the prosecution, he shall, 
 before qualifying as a witness, be excused from further duty 
 as a member. 
 
 130. MEMBER SIGNING CHARGES ACCUSER. Whether or 
 not an officer who is a member of the court is the accuser 
 in a particular case is a question of fact. If, notwith- 
 standing his ineligibility, he does sit as a member of a 
 general or special court-martial, the proceedings are neces- 
 sarily invalid. (A. W. 8, 9; Op. J. A. G., Oct. 11, 1913; 
 id., Nov. 13, 1913, Bui. 38, War Dept, 1913, p. 6.) An 
 officer who has signed and sworn to the charges in a particular 
 case is necessarily an accuser in that case, and therefore 
 ineligible to sit as a member of the trial court. But, while 
 prima facie the person who signs and swears to the charge is 
 the only accuser in the case, that is not always true. There 
 may in fact be another or several others who are real accusers, 
 and therefore also ineligible to sit on the trial court. If such a 
 question arises at any time during the trial it is within the 
 province of the court tp hear evidence on that issue and to 
 decide the question. If in such a case the court should decide 
 that any member so in question is eligible, such decision and all 
 the evidence upon which the court reached its decision will, 
 in the case of a general court-martial, or in the case of a spe- 
 cial court-martial where the evidence has been- ordered recorded, 
 be made of record ; and in the case of any other special court- 
 martial the record will show that evidence touching the eligi- 
 bility of the officer was heard by the court, and a summary 
 of such evidence, and the finding arrived at thereon. 
 
 NOTE. As to the procedure of the court in determining the question 
 of the eligibility of the member, see paragraph 125. 
 
 131. MEMBER OF COURT AS WITNESS. (a) For the Prose- 
 cution. No officer shall be eligible to sit as a member of a 
 general or a special court-martial who is a witness for the 
 prosecution. (A. W. 8, 9; Bui. 38, War Dept, 1913, p. 6.) 
 
 108 
 
COURTS-MARTIAL, ORGANIZATION. If 132 
 
 (Z>) For the Defense. The fact that a member is a wit- 
 ness for the defense will not necessarily disqualify him to sit 
 as. a member of the court, and the fact that such a witness 
 sits throughout the trial as a member of the court will not 
 in any way affect the validity of its proceedings. 
 
 (c) When Called by Court. Whether a member called as 
 a witness by the court is to be considered as a witness for 
 the prosecution depends on ~the character of his testimony, 
 which should be carefully considered before a conclusion is 
 reached that he is not. In any case of doubt he should be 
 excused from further participation in the trial as a member. 
 
 SECTION II. 
 OATHS. 
 
 132. OATH OF MEMBERS. (a) The challenges having been 
 disposed of, the trial judge advocate of a general or special 
 court-martial shall administer to the members of the court, 
 before they proceed upon any trial, the following oath or 
 affirmation (A. W. 19) : 
 
 You, A. B., do swear (or affirm) that you will well and truly try 
 and determine, according to the evidence, the matter now before you, 
 between the United States of America and the person to be tried, and 
 that you will duly administer justice, without partiality, favor, or 
 affection, according to the 'provisions of the rules and articles for the 
 government of the Armies of the United States, and if any doubt 
 should arise, not explained by said articles, then according to your 
 conscience, the best of your understanding, and the custom of war in 
 like cases; and you do further swear (or affirm) that you will not 
 divulge the findings or sentence of the court until they shall be pub- 
 lished by the proper authority or duly announced by the court, except 
 to the trial judge advocate and assistant trial judge advocate; neither 
 will you disclose or discover the vote or opinion of any particular 
 member of the court-martial upon a challenge or upon the findings or 
 sentence, unless required to give evidence thereof as a witness by a 
 court of justice in due course of laio. So help you God. 
 
 (b) In case of affirmation the closing sentence of adjura- 
 tion will be omitted. 
 
 (c) When more than one case is tried by the same court, 
 the oath must be administered anew for each case. 
 
 109 
 
^[ 133 CHAPTEK VIII. 
 
 (d) The oaths or affirmations prescribed in A. TV 7 . 19 for 
 the members, the trial judge advocate, a witness, and others 
 will always be administered, but in addition there may be 
 such additional ceremony or acts as will make the oath or 
 affirmation binding on the conscience of the person taking it. 
 
 {e) For decorum to be observed during the administra- 
 tion of oaths see Chapter VII, Section I. 
 
 133. OATH OF Trial JUDGE ADVOCATE. When the oath or 
 affirmation has been administered to the members of a gen- 
 eral or special court-martial, the president of the court shall 
 administer to the trial judge advocate and to each assistant 
 trial judge advocate, if any, an oath or affirmation in the 
 following form (A. W. 19) ; 
 
 You, A. B., do swear (or affirm) that you will faithfully and impar- 
 tially perform the duties of a trial judge advocate, and will not 
 divulge the findings or sentence of the court to any but the proper 
 authority until they shall be duly disclosed. So help you God, 
 
 134. OATH OF WITNESS. (a) All persons who give evi- 
 dence before a court-martial shall be examined on oath or 
 affirmation in the following form (A. W. 19), administered 
 by the trial judge advocate: 
 
 You swear (or affirm) that the evidence you shall give in 
 the case now in hearing shall he tJie truth, the whole truth, 
 and nothing but the truth. So h-elp you God. 
 
 (b] If either the trial judge advocate or assistant trial 
 judge advocate is to testify, the oath or affirmation will be 
 administered by the other or by the president. 
 
 13o. OATH OF REPORTER. (a) Every reporter of the pro- 
 ceedings of a court-martial shall, before entering upon his 
 duties, make oath or affirmation in the following form (A. W. 
 19), administered by the trial judge advocate: 
 
 You swear (or affirm) that you will faithfully perform 
 the duties of reporter to this court. So help you God. 
 
 (b) For authority for hiring reporters and compensation 
 see Chapter VII, Section V. 
 
 136. OATH OF INTERPRETER. Every interpreter in the trial 
 of any case before a court-martial shall, before entering upon 
 his duties, make oath or affirmation m the following form 
 (A. W. 19), administered by the trial judge advocate: 
 
 110 
 
COURTS-MARTIAL ORGANIZATION. ^f 137 
 
 You swear (or affirm) that you will tr-uly interpret in the 
 cane 11.010 in hearing. So help you God. 
 
 137. OATH TO TEST COMPETENCY. When a member of a 
 general or special court-martial is challenged and it is de- 
 sired to question him regarding his eligibility to sit as a 
 member in the trial of a case, the trial judge advocate will 
 administer to him the following oath : 
 
 You sivear that you ^oiU true answers make to questions 
 touching your competency as a member of the court in this 
 case. So help you God. 
 
 138, OATHS FOR ADMINISTRATIVE PURPOSES. (a) Any offi- 
 cer or clerk of any of the departments lawfully detailed to 
 investigate frauds on, or attempts to defraud, the Govern- 
 ment, or any irregularity or misconduct of any officer or 
 agent of the United States, and any officer of the Army, 
 Navy, Marine Corps, or Revenue-Cutter Service detailed to 
 conduct an investigation, and the recorder, and il there be 
 none the presiding officer, of any military, naval, or Reve- 
 nue-Cutter Service board appointed for such purpose, shall 
 have authority to administer an oath to any witness attend- 
 ing to testify or depose in the course of such investigation, 
 (R. S., 183, as amended by the act of Feb. 13, 1911, 36 
 Stat., 898.) 
 
 (b) Any judge advocate or acting judge advocate, the 
 president of a general or special court-martial, any sum- 
 mary court-martial, the trial judge advocate or any assistant 
 trial judge advocate of a general or special court-martial, 
 the president or the recorder of a court of inquiry or of a 
 military board, any officer designated to take a deposition, 
 any officer detailed to conduct an investigation, and the 
 adjutant of any command shall have power to administer 
 oaths for the purposes of the administration of military 
 justice and for other purposes of military administration; 
 and in foreign places where the Army may be serving shall 
 have the general powers of a notary public or of a consul 
 of the United States in the administration of oaths, the 
 execution and acknowledgment of legal instruments, the 
 attestation of documents, and all other forms of notarial 
 acts to be executed by persons subject to military law. 
 (A. W. 114.) 
 
 in 
 
11 139 CHAPTER VIII. 
 
 SECTION III. 
 CONTINUANCES. 
 
 139. AUTHORITY FOR. A court-martial may, for reason- 
 able cause, grant a continuance to either party for such 
 time and as often as may appear to be just. (A. W. 20.) 
 If before the first meeting of the court a continuance is 
 deemed necessary by either party, application therefor 
 should be made to the appointing authority, but if made 
 after assembling the application will be made to the court. 
 When application is made to the court for an extended 
 delay which appears to be well founded, it may be referred 
 to the appointing authority in order that he may determine 
 whether the court should grant it or whether he should dis- 
 solve the court. 
 
 140. REASON FOR APPLICATION TO BE STATED. The party 
 desiring a continuance must state the reasons upon which 
 his application is based. When it is desired because of the 
 absence of a witness he should distinctly show that the wit- 
 ness is material, that he has used due diligence to procure 
 the testimony or attendance of the witness, and that he has 
 reasonable ground to believe that he will be able to procure 
 such testimony or attendance within a reasonable time, 
 which time shall be stated, and the facts which he expects to 
 be able to prove by such witness, and that he can not so well 
 prove the same by any other testimony or evidence in the case. 
 If the opposite party will admit that the absent witness, if pres- 
 ent in court, would testify as stated, the* the court may, in its 
 discretion, refuse a continuance for the purpose of procuring 
 such testimony. (See notes 3 and 4 to par. 159, infra.) 
 
 141. NUMBER OF CONTINUANCES. The number of continu- 
 ances which may be granted is not limited, but where ex- 
 tended delays will ensue the court will be justified in exact- 
 ing proof of due diligence on the part of the party request- 
 ing the same, and may even require tin 1 reasons to be stated 
 under oath if it has reason to suspect that the intention is 
 merely to delay the proceedings. 
 
 112 
 
COURTS-MARTIAL, ORGANIZATION. ^f 142 
 
 SECTION IV. 
 COMPLETION OF ORGANIZATION. 
 
 142. WHEN ACCOMPLISHED. The court having met, the 
 accused and his individual counsel, if any, having been intro- 
 duced, and the defense counsel of the court being present, the 
 reporter sworn, and the convening order read, the right of 
 challenge accorded, and the court and trial judge advocate 
 sworn, the organization of the court is complete for the trial 
 of the case. 
 
 21358 20 3 
 
 113 
 
CHAPTER IX, 
 COURTS-MARTIAL PROCEDURE DURING TRIAL. 
 
 Section I: Arraignment: 
 
 143. When made 115 
 
 144. Procedure 115 
 
 Section II: Pleas: 
 
 145. Kinds of pleas 115 
 
 (a) To the jurisdiction; (b) in abatement; (c) 
 
 in bar of trial ; (d) to the general issue 115 
 
 146. Plea to the jurisdiction 116 
 
 Grounds for, enumerated, (a) to (d) 116 
 
 147. Plea in abatement 117 
 
 148. Plea in bar of trial 117 
 
 ' 149. Statute of limitations 117 
 
 1. Definition 117 
 
 2. Limitations as to time, (a) to (d) 118 
 
 3. Limitation as to number of trials, (a) to (g) 119 
 
 150. Pardon 121 
 
 151. Constructive condonation 121 
 
 152. (a) Former punishment 122 
 
 (5) Illegal enlistment 122 
 
 (c) Release from arrest 122 
 
 (d) Other forms of inadmissible pleas 122 
 
 153. Action upon special pleas 123 
 
 Procedure, (a) to (d) 123 
 
 154. Pleas to the general issue 124 
 
 Discussed, (a) to (ff) 124 
 
 Section III: Refusal to plead: 
 
 155. Action 127 
 
 Section IV : Motions and other incidents of the trial : 
 
 156. Motion to sever 127 
 
 157. Motion to elect 127 
 
 158. Nolle prosequi 128 
 
 158a, Aider of defective specification 129 
 
 158b. Variance 130 
 
 15Sc. Finding of not guilty at the close of the case for the 
 
 prosecution 130 
 
 158d. Convening authority Action when court-martial re- 
 quests directions 131 
 
 114 
 
COURTS-MARTIAL PROCEDURE DURING TRIAL, ^f 143 
 
 SECTION I. 
 ARRAIGNMENT. 
 
 143. WHEN MADE. Upon the completion of the organi- 
 zation of the court in accordance with the provisions of para- 
 graph 142, supra, the court is ready to proceed with the 
 trial of the charges in the case then before the court. In 
 each case tried by the court the appointing order must be 
 read anew, a new opportunity to challenge must be given, 
 and the members, trial judge advocate and assistants, if any, 
 reporter, and interpreter must be sworn anew. In each case 
 the proceedings must be complete without reference to any 
 other case. 
 
 144. PROCEDURE. The court being organized, and both 
 parties ready to proceed, the trial judge advocate will read 
 the charges and specifications, separately and in order, to 
 the accused and ask him how he pleads to each. The order 
 pursued, in case of several charges or specifications, will be 
 to arraign on the first, second, etc., specifications to the first 
 charge, then on the first charge, and so on with the rest. 
 The reading of the charges and specifications and the pleas 
 of the accused in answer thereto constitute the arraignment 
 of the accused. In reading the charges the trial judge 
 advocate will also read the name and rank of the officer 
 preferring them. 
 
 NOTE. For decorum to be observed during the arraignment see 
 paragraph 86. 
 
 SECTION II. 
 PLEAS. 
 
 145. KINDS OF PLEAS. In court-martial procedure the 
 usual pleas are the following: (a) Pleas to the jurisdiction; 
 (b) pleas in abatement; (c) pleas in bar of trial; and (d) 
 pleas to the general issue. The first three mentioned are also 
 known as special pleas. These pleas should be made in the 
 order named. (Dudley, p. 93; Bouvier's Law Dictionary, 
 Rawle, 3d Rev., p. 2603.) 
 
 115 
 
^ 146 CHAPTER IX. 
 
 146. PLEA TO THE JURISDICTION. A plea to the jurisdic- 
 tion denies the right of the court to try the case. The follow- 
 ing are grounds for a plea to the jurisdiction of a court : 
 
 (a) That it was appointed by an officer who did not have 
 the legal authority to do so (see Chap. Ill, Courts-martial 
 By whom appointed) ; 
 
 (5) That it is composed wholly or in part of members not 
 authorized by law to sit upon such court-martial (see Chap. 
 II, Courts-martial Composition) ; 
 
 (c) That the accused is not subject to its jurisdiction (see 
 Chap. I, Persons subject to military law) ; or 
 
 ( d) That it has not legal power to try the offense charged 
 (see Chap. XVII, Punitive articles). 
 
 A plea to the jurisdiction, if well grounded and sustained 
 by the court, bars further prosecution before the court. If 
 well grounded and not sustained by the court, the proceed- 
 ings may be disapproved by the appointing authority, or, 
 even though approved, may be reviewed on writ of habeas 
 corpus by a United States court, which will cause the pro- 
 ceedings to be set aside as illegal and void. Waiver of objec- 
 tion will never avail to confer jurisdiction upon a court not 
 legally possessing it, even though the accused fails to submit 
 a plea to the jurisdiction at the proper time. 
 
 The objection may be taken at any time during the proceed- 
 ings, and after a plea of either " guilty " or " not guilty " ; and 
 failure of the record to show jurisdiction will be ground for dis- 
 approval, or for setting aside the proceedings, findings, and 
 sentence. 
 
 NOTE 1. It is the imperative duty of the trial judge advocate to 
 see that the record shows all the essential jurisdictional facts, includ- 
 ing particularly evidence that (a) the accused is a person subject to 
 military law, and (b) that the person arraigned before the court as the 
 accused is actually the same person named as the accused in the 
 charges. 
 
 A plea of not guilty or of guilty to a specification, without raising 
 any question of identity, is sufficient evidence that the accused so 
 pleading is the same person named in the specification. 
 
 NOTE 2. Whenever the findings and sentence are disapproved or 
 vacated because of failure of the record to show jurisdiction, a re- 
 hearing or new trial before another court may be ordered, unless the 
 
 116 
 
COURTS-MAKTIAL PROCEDURE DURING TRIAL, ^f 147 
 
 record of trial affirmatively shows that accused is not a person mbject 
 to military law. But in any such case, if execution of the sentence 
 had been ordered by the reviewing authority (or, if there be one, by 
 the confirming authority) before it was so disapproved or vacated (A. 
 W. 40, 50^), the accused may, at such second trial, plead to the juris- 
 diction that the court at the former trial did in fact although not so 
 shown by its record have jurisdiction; and if such plea be sustained 
 by the proofs, the proceedings will thereupon be terminated for want 
 of jurisdiction. 
 
 147. PLEA IN ABATEMENT. A plea in abatement is based 
 upon some defect in the charge or specification and is one 
 that operates merely to delay the trial, such as an error in 
 the name, rank, or organization of the accused or in the 
 allegation as to time and place in the specification. An 
 accused who submits a plea in abatement must show how the 
 error may be amended. When a plea in abatement is sus- 
 tained, the trial judge advocate will correct the charge and 
 specification objected to so as to meet the objection, and the 
 trial will proceed on the corrected charges. To enable him 
 to make the correction a continuance may be granted. Mat- 
 ters which might have been objected to by a plea in abate- 
 ment will be considered as waived by pleading to the general 
 issue. 
 
 148. PLEA IN BAR OF TRIAL. A plea in bar of trial, if 
 sustained, is a substantial and conclusive answer to the 
 charge or specification to which it is addressed. Such a 
 plea may be made on the grounds set forth in paragraphs 
 149, 150, and 151. 
 
 NOTE. Insanity or mental defect cr derangement need not be 
 specially pleaded, but the question may be raised on the trial at any 
 time before sentence. (See paragraph 219, infra.) 
 
 149. THE STATUTE OF LIMITATIONS. (1) Definition. 
 Statutes of limitation in criminal law are statutes of which 
 the accused may take advantage and deprive the Govern- 
 ment of the power to try and punish him after the lapse of a 
 specific period since the offense was committed. They are 
 enacted to secure the prompt punishment of criminal offenses 
 and with a view to obtain the attendance of the witnesses at 
 the trial while the recollection of the event is still fresh in 
 their minds. In court-martial practice prosecutions are lim- 
 ited both as to time and as to number. (A. W. 39, 40.) 
 
 117 
 
^[ 149 CHAPTER IX. 
 
 (2) Limitations as to Time. (a) In the following cases 
 there is no limitation as to time upon trial by court-martial 
 (A. W. 39), viz: 
 
 (1) Desertion committed in time of war; 
 
 (2) Mutiny; or 
 
 (3) Murder. 
 
 (&) The period of limitation upon trial and punishment 
 by court-martial shall be three (3) years in the following 
 cases (A. W. 39), viz: 
 
 (1) Desertion in time of peace; 
 
 (2) Any crime or offense punishable under A. W. 
 
 93; or 
 
 (3) Any crime or offense punishable under A. W. 94. 
 
 (c) No person subject to military law shall be liable to be 
 tried or punished by a court-martial for any crime or offense 
 not enumerated in subparagraph (a) or subparagraph (&), 
 supra, committed more than two (2) years before the ar- 
 raignment of such person (A. W. 39). 
 
 (d) Computation of the period of limitation. The point 
 at and from which the period of limitation is to begin to run 
 is the date of the commission of the offense. The point at 
 which the period of limitation is to terminate and from 
 which said period is to be reckoned back is the date of 
 arraignment of the accused. There must be excluded in com- 
 puting this period 
 
 (1) The period of any absence of the accused from 
 
 the jurisdiction of the United States; and 
 
 (2) Any period during which by reason of some 
 
 manifest impediment the accused shall not have 
 been amenable to military justice. 
 
 NOTES. M Manifest impediment " means only such impediments as 
 operate to prevent the court-martial from exercising its jurisdiction, 
 and includes such conditions as being held as a prisoner of war in 
 the hands of tlte enemy, or being imprisoned under the sentence of a 
 civil court upon conviction of crime (In re Davison, 4 Fed. Rep., 5l6) ; 
 hut any concealment of the evidence of their guilt or other like fraud 
 on their part while they remain within the jurisdiction of the United 
 States by which the prosecution is delayed until the time the bar 
 h/is run does not deprive them of the benefit of the statute. (14 Op. 
 Atty. Gten., 268.) 
 
 118 
 
COURTS-MARTIAL PROCEDURE DURING TRIAL, ^f 149 
 
 The thirty-ninth article of war does not have the effect to authorize 
 trial or punishment for any crime or offense barred by the provisions 
 of law existing at the date of its taking effect, viz, February 4, 1921. 
 
 (3) Limitation as to Number of Trials. (a) No person 
 shall be tried a second time for the same offense. (A. W. 40.) 
 
 (5.) A person subject to military law has not been " tried " 
 in the sense of A. W. 49 in any of the following cases : 
 
 Where the party, after being arraigned or tried before a 
 court which was illegally constituted or composed, or was 
 without jurisdiction, was again brought to trial before a 
 competent tribunal; where the accused, having been ar- 
 raigned upon and having pleaded to certain charges, was 
 rearraigned upon a new set of charges substituted for the 
 others which were withdrawn ; where one of the several dis- 
 tinct charges upon which the accused had been arraigned 
 was withdrawn pending the trial, and the accused, after a 
 trial and finding by the court upon the other charges, was 
 brought to trial anew upon the charge thus withdrawn; 
 where, after proceedings commenced, hut discontinued with- 
 out a finding, the accused was brought to trial anew upon 
 the same charge ; where, after having been acquitted or con- 
 victed upon a certain charge which did not in fact state the 
 real offense committed, the accused was brought to trial for 
 the same act, but upon a charge setting forth the true offense ; 
 where the court was not sworn; where the first court was 
 dissolved because reduced below five members by the casual- 
 ties of the service pending the trial; where, for any cause, 
 without fault of the prosecution, there was a "mistrial," 
 or the trial first entered upon was terminated, or the court 
 dissolved, .at any stage of the proceedings before a final ac- 
 quittal or conviction (Digest, p. 167, C, II, B) ; or, in any 
 case, until either an acquittal has been announced in open 
 court, or else, after conviction, the reviewing and, if there be 
 one, the confirming 1 authority shall have taken final action upon 
 the case (A. W. 40), i. e., shall have ordered execution of the 
 sentence or dismissed the case. As to new trials or rehearings 
 see paragraphs 377 and 399, infra. 
 
 (c) The same acts constituting a crime against the United 
 States can not, after the acquittal or conviction of the ac- 
 
 119 
 
Tf 149 CHAPTER IX. 
 
 cused in a court of competent jurisdiction, be made the basis 
 of a second trial of the accused for that crime in the same 
 or in another court, civil or military, of the same govern- 
 ment. 
 
 Although the same act when committed in a State might 
 constitute two distinct offenses, one against the United 
 States and the other against the State, for both of which the 
 accused might be tried, that rule does not apply to acts com- 
 mitted in the Philippine Islands. The government of a 
 State does not derive its powers from the United States, 
 while that of the Philippine Islands does owe its existence 
 wholly to the United States. 
 
 A soldier in the Army, having been acquitted of the crime 
 of homicide, alleged to have been committed by him in the 
 Philippine Islands, by a military court-martial of compe- 
 tent jurisdiction proceeding under authority of the United 
 States, can not be subsequently tried for the same offense in 
 a civil court exercising authority in that Territory. (Graf- 
 ton v. U. S., 206 U. S., 333.) 
 
 A similar rule applies in Alaska, Hawaii, Porto Eico, 
 the Panama Canal Zone, or any other locality where the 
 civil courts derive their authority from the United States. ' 
 
 (d) There can not be a second trial where the offense is 
 really the same, though it may be charged under a different 
 description and under a different article of war. Thus, 
 where the Government elects to try a soldier under A. TV. 61 
 for absence without leave, and the testimony introduced 
 develops the fact that the offense was desertion, the accused, 
 after an acquittal or a finally approved conviction, can not 
 legally be brought a second time to trial for the same absence 
 charged as desertion. (Digest, p. 169, C, II, D.) If a con- 
 viction in snch a case should be disapproved before its execution 
 was ordered, the accused could be ordered tried for desertion as 
 well as for absence without leave on a rehearing of the case. 
 (A. W. 40, 47, 49, 50 J.) 
 
 (e) It is not misrepresentation or concealment by an ap- 
 plicant for enlistment, but the procuring of his enlistment 
 by means of misrepresentation or concealment, together with 
 the receipt of pay or allowances, which constitutes the mili- 
 
 120 
 
COURTS MARTIAL PROCEDURE DURING TRIAL, ^f 150 
 
 tary offense of fraudulent enlistment under A. W. 54-. 
 Therefore, where a soldier was tried for and convicted of 
 fraudulent enlistment in procuring his enlistment by means 
 of a misrepresentation or concealment, to try him again for 
 the same enlistment on account of another misrepresentation 
 or concealment subsequently discovered would be a second 
 trial for the same offense. (Digest, p. 169, C, II, E, 1.) 
 
 (/) The thirty-ninth article of war does not deprive a 
 court-martial of jurisdiction of an offense after the periods 
 prescribed. The court still has jurisdiction. The article 
 gives the accused a right of exemption from trial if the 
 accused claims the exemption and proves it. In other 
 words, the exemption from trial is a defense that the accused 
 must assert in order to take advantage of it. The defense 
 may be made by entering a plea in bar, or it may be made 
 after a plea of not guilty by introducing evidence showing 
 the facts that entitle him to the exemption. 
 
 (g) In each case tried by general court-martial in which, 
 upon the face of the record, it appears that the accused 
 might successfully plead the statute of limitations but in 
 which he has not interposed such plea, it shall be made to 
 appear of record that the president of the court, or the law 
 member advised the accused of his legal rights in the 
 premises, and such advice of the president or law member and 
 the response of the accused thereto will appear in the record. 
 The same rule will apply in a special court-martial in any case 
 where the evidence is made of record. 
 
 150. PARDON. A pardon is an act of the President which 
 exempts the individual on whom it is bestowed from the 
 punishment the law inflicts for a crime he has committed. 
 (See Words and Phrases, vol. 6, p. 5168, and authorities 
 there cited.) 
 
 151. CONSTRUCTIVE CONDONATION. Where a deserter has 
 been restored to duty without trial by authority competent 
 to order his trial, this action is regarded as a constructive 
 condonation of the offense and may be pleaded in bar of 
 trial subsequently ordered; unless such authority, before or 
 at the time of such restoration, directed that he remain subject 
 to trial for the offense. 
 
 121 
 
If 152 CHAPTER IX. 
 
 152. (a) FORMER PUNISHMENT. Former punishment, 
 i. e., that he has already been punished for the same offense 
 by a commanding officer, under the one hundred and fourth 
 article of war, may be pleaded in bar of trial, and, if proven, 
 will be a bar to further proceedings. But such punishment is 
 not a bar to trial for another crime or offense growing out of 
 the same act or omission. (A. W. 104: Grafton v. IT. S., 208 
 U, S. 333, 350-351.) For instance, the fact that the accused 
 had been so punished by his commanding officer for reckless 
 driving resulting in a collision would not prevent his subsequent 
 trial for involuntary manslaughter when a victim of the accident 
 afterwards died. 
 
 (b) ILLEGAL ENLISTMENT. The accused, upon arraign- 
 ment, has sometimes pleaded that on account of some ille- 
 gality in his enlistment, as that he was under age, or that he 
 was enlisted for a shorter period than the law required, etc., 
 he was not amenable to trial. But no such form of special 
 plea is recognized in our law. If the accused, by reason of 
 his invalid enlistment, is not duly or legally in the Army, 
 he should regularly offer the facts in evidence under a plea 
 to the jurisdiction or bring them out under the general issue. 
 (Winthrop, p. 411.) 
 
 (c) RELEASE FROM ARREST. Release from arrest upon the 
 charges and restoration to duty before trial already no- 
 ticed as not a ground for a plea of pardon or condonation 
 is, similarly, no ground for a special plea in bar of trial. 
 
 (d) OTHER FORMS OF INADMISSIBLE PLEAS. Such objec- 
 tions (which have been taken in some cases) as that the 
 accused, at the time of the arraignment, is undergoing a sen- 
 tence of general court-martial; or that, owing to the long 
 delay in bringing him to trial, he is " unable to disprove the 
 charge or defend himself"; or that his accuser is actuated 
 by malice or is a person of bad character, are, it need hardly 
 be said, not proper subjects for special pleas, however much 
 they may constitute ground for continuance, or affect the 
 questions of the truth or falsity of the charges, or of the meas- 
 ure of punishment. So as to all such objections as are 
 properly matters of defense under the general issue for 
 
 122 
 
COURTS-MARTIAL PROCEDURE DURING TRIAL, ^f 153 
 
 example, that the accused committed the offense charged 
 when insane, or intoxicated, or in obedience to a military 
 order, or under a mistake of fact or law, etc. these are not 
 within the scope or purpose of special pleas in bar. nor can 
 they properly be raised in an interlocutory form, or other- 
 wise than upon the trial and by the testimony, being, as they 
 are, of the very substance of the defense. (Winthrop, 
 p. 412.) 
 
 153. ACTION UPON SPECIAL PLEAS. (a) Each special plea 
 should be stated briefly and clearly. It must also be sup- 
 ported by evidence or legal argument to show that it is well 
 taken. The burden of supporting a special plea by a pre- 
 ponderance of proof rests on the accused. Both sides should 
 be heard and the proceedings and arguments under the plea 
 in trial by general or special court-martial recorded. The 
 accused may make several special pleas to any charge or 
 specification, 
 
 {&) When a special plea to the jurisdiction or in bar of 
 trial as to all the charges and specifications has been sus- 
 tained by a court, the record of the proceedings as far as had 
 will be forwarded to the reviewing authority with a state- 
 ment of reasons which, in the opinion of the court, sustain 
 its action. If the reviewing authority is in disagreement 
 with the court in respect of the validity of the plea, the 
 proceedings will be returned by him to the court, with 
 reasons for such disagreement and with instructions to the 
 court to reconvene and reconsider its action. To the extent 
 that such pleas present issues of law, the court properly 
 defers to the views of the reviewing authority. The order 
 returning the proceedings for reconsideration should direct 
 the court, upon vacating its prior action, to proceed with 
 the trial of the case. If the reviewing authority approves 
 the action of the court in sustaining such pleas his action 
 will be indorsed on the proceedings and published in the 
 final review of the case. 
 
 {c) If the charge and specification to which a special 
 plea has been sustained are not capable of amendment and 
 
 123 
 
^f 154 CHAPTER IX. 
 
 there are other charges and specifications in the case, the 
 trial may proceed on the other charges and specifications. 
 (G. O. 28, W. D.,1905.) 
 
 (d) When all the special pleas to a given charge or speci- 
 fication are overruled, the accused must plead to the general 
 issue as to that charge or specification. 
 
 154. PLEAS TO THE GENERAL ISSUE. (a) Usually the plea 
 of the accused is "guilty" or "not guilty" to each charge 
 and specification ; or, guilty to a specification excepting cer- 
 tain words, and to the excepted words not guilty; or, as 
 when charged with an offense which includes a lesser one of 
 a kindred nature, guilty to the specification except certain 
 words, substituting therefor certain others, to the excepted 
 words "not guilty," to the substituted words "guilty," and 
 to the charge not guilty, but guilty of the lesser included 
 offense. 
 
 (5) A court-martial is authorized, in any case, in its dis- 
 cretion, to permit an accused to withdraw a plea of not 
 guilty and substitute one of guilty, and vice versa, or to 
 withdraw either of these general pleas and substitute a spe- 
 cial plea. And wherever the accused applies to be allowed 
 to change or modify his plea, the court should, in general, 
 consent, provided the application is made in good faith and 
 not for the purpose of delay. 
 
 (c) A plea of guilty does not exclude the taking of 
 evidence, on behalf of either the accused or the prosecu- 
 tion, or at the request of the court. In cases where 
 the punishment is discretionary a full knowledge of the 
 circumstances attending the offense is essential to the court 
 in measuring the punishment and to the reviewing author- 
 ity in acting on the sentence. In cases where the punish- 
 ment is mandatory, a full knowledge of the attendant cir- 
 cumstances is necessary to the reviewing authority to enable 
 him to comprehend the entire case and correctly judge 
 whether the sentence should be approved or disapproved or 
 clemency granted. The court should therefore take evi- 
 dence after a plea of guilty, except when the specification is 
 so descriptive as to disclose all the circumstances of mitiga- 
 tion or aggravation. When evidence is taken after a plea 
 
 124 
 
COURTS-MARTIAL, PROCEDURE DURING TRIAL. If 154 
 
 of "guilty," the witnesses may be cross-examined, evidence 
 may be produced to rebut their testimony, and the court 
 may be addressed by the prosecution or defense on the 
 merits of the evidence and in extenuation of the offense or 
 in mitigation of punishment. After a plea of guilty the 
 accused will always be given an opportunity to offer evi- 
 dence in mitigation of the offense charged if he desires to 
 do so. 
 
 NOTE. It is only in very rare cases that the specification is so de- 
 scriptive as to disclose all the circumstances of mitigation or aggrava- 
 tion. Therefore, as a rule the court will direct testimony taken after 
 a plea of guilty. 
 
 (d) In each case tried by a general or special court-martial 
 in which the accused enters a plea of guilty in whole or in 
 part as to any charge or specification, the president or the 
 law member of the court (see par. 89a, supra) shall explain 
 to him as to that part : 
 
 First. The various elements which constitute the offense 
 charged, as set forth in Chapter XVII, concerning the puni- 
 tive articles of war ; and 
 
 Second. The maximum punishment which may be ad- 
 judged by the court for the offense to which he has pleaded 
 guilty. 
 
 The accused will then be asked whether he fully under- 
 stands that by pleading guilty to such a charge or specifica- 
 tion he admits having committed all the elements of the 
 crime or offense charged and that he may be punished as 
 stated. If he replies in the affirmative, the plea of guilty 
 will stand; otherwise a plea of not guilty will be entered. 
 The explanation of the president or law member of the court 
 and the reply of the accused thereto shall appear in the record 
 of trial by a general court-martial. The same rule will apply 
 in cases tried by special court-martial when the evidence 
 heard is made of record. In other trials by special court- 
 martial, the fact of such explanation being given in the form 
 prescribed in Appendix 9 to this Manual will be noted in the 
 record. 
 
 NOTE. For the form of such explanation see Appendix 9. 
 
 125 
 
^f 154 CHAPTER IX. 
 
 (e) When the accused pleads "guilty.," and, either before 
 or after such plea, at any time before the sentence, makes a 
 statement or gives testimony inconsistent with his plea, the 
 statement or testimony and plea will be considered together, 
 and if guilt is not conclusively admitted the court will pro- 
 ceed to trial and judgment as if he had pleaded "not guilty." 
 (A. W. 21.) The most frequent instances of inconsistency 
 are in cases involving a specific intent, as in desertion, lar- 
 ceny, etc. In such cases, where before or after a plea of 
 guilty the accused at any time before the sentence makes a 
 statement, or gives testimony, the latter should be carefully 
 scrutinized by the court, and if in the case of desertion in 
 any part there is a statement that the accused had no inten- 
 tion of remaining away; that he expected to return when 
 he had earned some money ; or that when arrested he was on 
 his way back to his organization, etc. ; or that (if such be the 
 desertion alleged) he did not intend to avoid hazardous duty or 
 to shirk important service; or, in the case of larceny, that he 
 intended to return the property alleged to have been stolen, 
 etc., the court will proceed to trial and judgment as if he had 
 pleaded " not guilty " (A. W. 21) ; but the criminality of an 
 intent once formed is not affected by a subsequent change of 
 intent. 
 
 (/) A plea of "guilty without criminality" is irregular 
 and contradictory. (Winthrop, p. 414.) It is practically 
 equivalent to a plea of " not guilty," and the court and trial 
 judge advocate should proceed as if that plea were entered. 
 Unless a plea of guilty is unqualified the prosecution must 
 prove all allegations that are not specifically admitted by 
 the accused. 
 
 (g) Insanity at the time of the commission of the acts 
 charged is a defense which may be properly made under a 
 plea of not guilty. Insanity at the time of arraignment, or 
 at a later stage of the trial, is a proper ground for the ar- 
 rest of further proceedings on the charges. (See par. 219 
 infra.) 
 
 128 
 
COUHTS-MARTIAL PROCEDURE DURING TRIAL, ^f 155 
 
 SECTION III. 
 REFUSAL TO PLEAD. 
 
 155. ACTION. When the accused, arraigned before a 
 court-martial, fails or refuses to plead, or answers foreign to 
 the purpose, or when it appears to the court that he entered a 
 plea of guilty improvidently or through lack of understanding 
 of its meaning and effect, the court may proceed to trial and 
 judgment as if he had pleaded not guilty. (A. W. 21.) If 
 the court finds that the failure to plead is the result of 
 insanity, it will proceed as indicated in Section II, para- 
 graph 154 (#), supra, and in paragraph 219, infra. 
 
 SECTION IV. 
 MOTIONS AND OTHER INCIDENTS OF THE TRIAL. 
 
 156. MOTION TO SEVER. A motion to sever is a motion by 
 one of two or more joint accused to be tried separately from 
 the other or others. It will regularly be made at the ar- 
 raignment. Except where the essence of the charge is com- 
 bination between the parties (as in mutiny), the motion 
 may properly be granted for good cause shown. The more 
 common grounds of motions for severance are that the 
 mover desires to avail himself on his trial of the testimony 
 of one or more of his coaccused, or of the testimony of the 
 wife of one, or that the defenses of the other accused are 
 antagonistic to his own, or that the evidence as to them will 
 in some manner prejudice his defense. This motion has 
 rarely been presented to the court in our military practice. 
 Where the prosecution desires to use one of two or more 
 joint accused as a witness against another or others, the 
 practice is not to move to sever, but, by order of the con- 
 vening authority, to withdraw charges as to such one. (See 
 Winthrop, p. 379, and authorities there quoted.) 
 
 157. MOTION TO ELECT. The prosecution is at liberty to 
 charge an act under two or more forms, where it is doubtful 
 under which it will more properly be brought by the testi- 
 mony. In the military practice the accused is not entitled 
 
 127 
 
If 158 CHAPTER IX. 
 
 to call upon the prosecution to " elect " under which charge 
 it will proceed in such, or indeed in any,- case. (Digest, p. 
 504, V, F.) 
 
 158. NOLLE PJROSEQUT. A nolle prosequi is a declaration 
 of record on the part of the prosecution that it withdraws a 
 charge or specification from the investigation and will not 
 pursue the same further at the present trial. This authority 
 can only be exercised by the superior who, as the representa- 
 tive of the United States, ordered the court, and in a proper 
 case he may, on his own initiative or on application duly 
 made to him, instruct the trial judge advocate to enter a nolle 
 prosequi. The principal grounds for this proceeding when 
 duly authorized will be 
 
 (a) The fact that the charge or specification is dis- 
 covered to be substantially defective and in- 
 sufficient in law, or 
 
 (5) That it is ascertained that the allegations can not 
 be proved, or 
 
 (c) That the testimony available is not sufficient to 
 
 sustain them, or 
 
 (d) That the criminality of one of the accused, where 
 
 there are several, can not be established, or 
 
 (e) That it is proposed to use one of the accused as a 
 
 witness. 
 
 The withdrawal of such a charge or specification is not in 
 itself equivalent to an acquittal or to a grant of pardon and 
 can not be so pleaded. It simply removes from the pending 
 case a particular charge or specification without prejudice 
 to its being subsequently renewed in its original or a re- 
 vised form. In court-martial practice when authorized by 
 the appointing authority a nolle prosequi may be entered 
 either before or after arraignment and plea. If after ar- 
 raignment it is found that a charge or specification can not 
 be sustained or it is determined for other reasons that the 
 same shall not be pursued, while it would be legal to enter 
 a nolle prosequi thereto (see form, Appendix 10), it will be 
 the preferable course as well as most just to the accused 
 not to do so, but to allow the accused to be formally 
 acquitted thereon at the finding. (See Winthrop, pp. 
 
 369-371.) 
 
 128 
 
COURTS-MARTIAL PROCEDURE DURING TRIAL, ^f 158a 
 
 158a. Aider of Defective Specification. If a specification, 
 while defective because of failure to allege some particular fact 
 or element essential to the offense, nevertheless contains suffi- 
 cient fairly to apprise the accused of the offense intended to be 
 charged, then, if at the time of arraignment, there be no objec- 
 tion to the specification on the ground of such omission, and if 
 either (1) the accused pleads not guilty thereto and the record 
 shows that the omitted fact or element has been proved at the 
 trial without objection by the defense, or (2), upon the accused's 
 plea of guilty to such specification, the president (or the law 
 member of a general court) explains to the accused the various 
 elements which constitute the offense charged therein in accord- 
 ance with the requirements of paragraph 154d, supra, and in such 
 explanation states and includes such omitted fact or element as 
 one of the elements of the crime or offense charged, which the 
 accused, by pleading guilty to such specification, admits having 
 committed, then, in either such case, a finding of guilty will cure 
 such defect in the specification, and neither the finding nor sen- 
 tence need be disapproved by reason of such defect; unless it 
 appears from the record that the accused was in fact misled by 
 sucn failure, or that his substantial rights were in fact other- 
 wise injuriously affected thereby; or unless the existence of 
 such omitted fact or element is negatived by the language of 
 the defective specification or by the language of some other 
 specification. 
 
 If, at the arraignment, or at any time during the trial, the 
 accused objects to the sufficiency of the specification on the 
 ground of the omission therefrom of such essential fact or ele- 
 ment, or objects to evidence offered as to such omitted fact or 
 element, on the ground that it is not alleged in the specification, 
 or in case such defect is brought to the attention of the court 
 in any other manner, the court will either (1) direct that speci- 
 fication to be stricken out and disregarded, or else (2) the court 
 may, in its discretion, either on motion of the trial judge advo- 
 cate or upon its own motion, continue the case to allow the trial 
 judge advocate to apply to the convening authority for direc- 
 tions as to further proceedings in the case (see par. 158d, infra), 
 or may (3) permit the specification to be so amended as to cure 
 such omission, and continue the case for such time, as in the 
 21358 20 9 
 
 129 
 
^f 158b CHAPTER IX. 
 
 opinion of the court may suffice to enable the accused properly 
 to prepare his defense in view of the amendment (provided, 
 however, that the court may proceed immediately with the trial 
 upon such amendment being made, if it clearly appears from all 
 the circumstances before the court that the accused has not in 
 fact been misled in the preparation of his defense, and that a con- 
 tinuance is not necessary for the protection of his substantial 
 rights) . 
 
 158b. Variance. If at any time during the trial it appears 
 to the court that the evidence as to any specification or charge 
 is not legally sufficient to sustain a finding of guilty thereof or 
 of any lesser included offense thereunder, but that there is sub- 
 stantial evidence, either before the court or offered, tending to 
 prove the guilt of the accused of some other offense not alleged 
 in any specification or charge before the court, the court may in 
 its discretion, instead of proceeding with the trial upon the plead- 
 ings as they stand, either 
 
 1. Direct that the specification or charge in question be 
 
 stricken out and disregarded; or 
 
 2. Continue the case pending an application by the trial 
 
 judge advocate to the convening authority for direc- 
 tions as to further proceedings in the case. (See 
 
 par. 158d, infra.) 
 
 158c. Finding of Not Guilty at the Close of the Case for the 
 Prosecution. Upon the close of the case for the prosecution and 
 before the opening of the case for the defense, or the introduc- 
 tion of any evidence for the defense or statement by the ac- 
 cused, or at any time thereafter during the trial, before the 
 close of the evidence, the court may, either upon its own motion 
 or upon the suggestion of the trial judge advocate or upon sug- 
 gestion or motion by the accused or his counsel, consider whether 
 the evidence introduced by the prosecution, or before the court, 
 is legally sufficient to support a finding of guilty, either as to 
 all of the specifications and charges before the court, or as to 
 any particular one or more thereof. And if it thereupon appears 
 to the court that the evidence then before the court in favor of 
 the prosecution, if that most favorable to the prosecution should 
 all be accepted as true (regardless of any question of veracity 
 of the witnesses or of the chances of its being successfully con- 
 
 130 
 
COURTS- MARTIAL PROCEDURE DURING TRIAL, ^f 158d 
 
 troverted or explained by the defense) with all the inferences in 
 favor of the prosecution that may reasonably be drawn there- 
 from, is not legally sufficient to sustain the specifications and 
 charges, or any particular one or more thereof (that is, if there is 
 no substantial evidence fairly tending to prove each of the essen- 
 tial facts and elements therein alleged), then, in any such case, 
 the court may in its discretion forthwith direct and announce in 
 open court a finding of not guilty, either of all the specifications 
 and charges, or of such particular specifications or charges, if 
 any, as the court shall so find not to be supported by legally suffi- 
 cient evidence, Every such question will be determined purely 
 as a question of law, without any consideration of the weight of 
 the evidence before the court or any part thereof; and such ques- 
 tion will be determined, in the first instance, by the law member 
 of the court, if any, or if there be no law member of the court, 
 or he be not present, then by the president, by his ruling in open 
 court upon the question (A. W. 31) ; but if any member of the 
 eourt object to such ruling the court will be cleared and closed 
 and the question decided by a majority vote by secret ballot, as 
 provided by the thirty-first article of war; but a denial of such 
 motion shall never be regarded as ground, in itself, of disapprov- 
 ing a finding or sentence. 
 
 158d. CONVENING AUTHORITY. ACTION WHEN COURT- 
 MARTIAL REQUESTS DIRECTIONS, Whenever a trial judge 
 advocate, by the directions of a court-martial, under the pre- 
 visions of paragraph 158a or of paragraph 158b, supra, or 
 under any other paragraph of this Manual, or otherwise,, applies 
 to the convening authority for directions as to further proceed- 
 ings in a case, the convening authority will refer the matter to 
 his staff judge advocate for consideration and advice, who will 
 report to him thereon in accordance with the provisions of para- 
 graph 76b, supra, The convening authority will thereupon take 
 such action as may appear to Mm to be proper under the cir- 
 cumstances of the case. 
 
 131 
 
CHAPTER X. 
 
 COURTS-MARTIAI^-WITNESSES AND 
 DEPOSITIONS. 
 
 Section I: Attendance of witnesses: Page. 
 
 159. Process to obtain witnesses 133 
 
 160. Service of subpoena 134 
 
 161. Summoning of witnesses 134 
 
 162. Advance notice to witnesses 135 
 
 163. Attendance of military witnesses 135 
 
 164. Procedure to secure attendance of civilian witness 135 
 
 165. When accused must be confronted with witness _ 136 
 
 166. Procedure to obtain books, documents, or papers 137 
 
 167. Civilian witness in confinement 137 
 
 168. Warrant of attachment. 137 
 
 169. Habeas corpus proceedings in connection with attach- 
 
 ments 138 
 
 170. Punishment for refusal to appear or testify 139 
 
 171. Same in Philippine Islands 140 
 
 172. Tender of fees preliminary to prosecution 141 
 
 173. Contempts 141 
 
 (a) Authority to punish 141 
 
 (&) Persons who may be punished for contempt 141 
 
 (c) Direct and constructive contempts 142 
 
 (d) Procedure 142 
 
 Section II: Depositions: 
 
 174. When admissible 143 
 
 174a. Depositions upon oral interrogatories 143 
 
 175. Before whom taken 143 
 
 176. Interrogatories, how submitted 144 
 
 177. Procedure to obtain deposition 144 
 
 178. Tracing delayed depositions 146 
 
 179. Designation of deponent by official title 146 
 
 180. Deponent's answers to be responsive 146 
 
 181. Fees for taking depositions 146 
 
 181J. Depositions upon oral interrogatories Procedure 146 
 
 182. Taking depositions in foreign country 148 
 
 Section III : Fees, mileage, and expenses of witnesses : 
 
 183. Officers and soldiers, active or retired 149 
 
 184. Civilians in Government employ 149 
 
 185. Civilians not in Government employ 150 
 
 186. Payment for return journey 151 
 
 132 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS, ^f 159 
 
 Section III, Fees, mileage, and expenses of witnesses Contd. Page. 
 
 187. Contents of vouchers 151 
 
 188. Witness in several trials on same day 151 
 
 189. Voucher to be delivered to witness 151 
 
 190. Lost voucher 152 
 
 191. Fees for service of subpoanas 152 
 
 192. Employment of experts 152 
 
 193. Expenses of courts-martial, etc., how payable 152 
 
 SECTION I. 
 ATTENDANCE OF WITNESSES. 
 
 159. PROCESS TO OBTAIN WITNESSES. Every trial judge 
 advocate of a general or special court-martial and every 
 summary court-martial shall have power to issue the like 
 process to compel witnesses to appear and testify which 
 courts of the United States having criminal jurisdiction may 
 lawfully issue ; but such process shall run to any part of the 
 United States, its Territories, and possessions. (A. W. 22.) 
 The authority to issue such process is in terms vested solely 
 in the trial judge advocate of a general or special court- 
 martial and in a summary court-martial, and it is by them 
 alone that the process can be initiated. The trial judge 
 advocate, however, will sometimes properly consult the court 
 as to the desirability of resorting to an attachment, espe- 
 cially where any considerable time may be required for the 
 service and return of the same, and an unusual adjournment 
 may thus be necessitated. He will also properly resort to 
 it whenever the court in its desire to secure the best or mate- 
 rial evidence not otherwise procurable calls upon him for the 
 purpose. (Winthrop, p. 298.) 
 
 It is the duty of the trial judge advocate to issue process to 
 compel the attendance of witnesses desired on behalf of the de- 
 fense upon the request of the defense counsel or of other counsel 
 for the accused, but he may properly consult the court as to the 
 desirability of resorting to an attachment for such purposes 
 where any considerable time may be required for the service 
 and return of the same and an unusual adjournment may thus be 
 necessitated, if the evidence desired by the accused can be ob- 
 
 133 
 
*[ 160 CHAPTER X. 
 
 tained in another manner, or if the trial judge advocate is will- 
 ing to admit that the absent witness or witnesses, if present, 
 would testify as stated by the accused. (See par. 140, supra.) 
 
 NOTE 1. For power to issue process to secure the attendance and 
 testimony of witnesses before courts-martial in the National Guard 
 not in the service of the United States, see section 108, National 
 Defense Act of June 3, 1916, 39 Stat. 209, Appendix 2. 
 
 2. Wherever in this section reference is made to issue of such 
 process by a trial judge advocate, a summary court-martial will be 
 understood to be included. 
 
 3. An admission that an absent witness would, if present, testify in 
 a particular manner does not admit the fact to be as the witness would 
 testify. The admission simply stands in the place of the testimony of 
 the witness and may be attacked or contradicted or explained in the 
 same way as though the witness had been sworn and had testified to 
 the tilings covered by the admission. 
 
 4. The admission of the truth of a statement or of the existence of 
 a fact is a wholly different thing. 
 
 160. SERVICE OF SUBPOENA. A subpoena for the attend- 
 ance of a civilian witness is issued in duplicate. It may be 
 legally served by either a person in the military service or 
 a civilian. Usually service is made by an officer or noncom- 
 missioned officer. Service is made by personal delivery of 
 one of the -copies to the witness. The proof of service is 
 made by indorsing on the remaining copy a sworn statement 
 that service was made. (For service by mail and accept- 
 ance of same, see par. 161, infra.) After making service a 
 copy of the subpoena will be promptly returned to the trial 
 judge .advocate of the court with the proof of service. If 
 the witness can not be found, the trial judge advocate should 
 be promptly so informed. A trial judge advocate can not 
 subpoena a civilian witness to appear before himself for pre- 
 liminary examination. 
 
 NOTE. For form and subpoena and proof of service, see Appendix 19. 
 
 161. SUMMONING OF WITNESSES. The trial judge advo- 
 cate will summon the necessary witnesses for the trial, but 
 will not summon witnesses at the expense of the Govern- 
 ment without the order of the court, unless satisfied that 
 their testimony is material and necessary. In order that 
 the accused may not be denied a full opportunity to make 
 
 134 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS. If 162 
 
 his defense any witness requested by him is usually sum- 
 moned, and any witness designated by the defense counsel of a 
 general or special court-martial will be summoned. But a 
 reasonable discretion should be exercised by the defense coun- 
 sel where the summoning of the number of witnesses re- 
 quested by the accused or by individual counsel would result in 
 an unreasonable inconvenience or expense to the Govern- 
 ment. In such instances the defense counsel should ascertain 
 whether the testimony required of the witness is not merely 
 cumulative, or as to an unimportant point that one or two 
 witnesses would be sufficient to render conclusive, or as to 
 which the trial judge advocate will consent to admit the 
 facts expected from the witness's testimony. 
 
 162. ADVANCE NOTICE TO WITNESSES. The trial judge ad- 
 vocate will endeavor to issue subpoenas to civilian witnesses 
 and to make -request for the attendance of military witnesses 
 at such time as will give each witness at least 24 hours' 
 notice before starting to attend the meeting of the court. 
 
 163. ATTENDANCE OF MILITARY WITNESSES. The attend- 
 ance of persons in the military service stationed at the place 
 of meeting of the court, or so near that no expense of trans- 
 portation will be involved, will ordinarily be obtained by 
 informal notice served by the trial judge advocate on the 
 person concerned that his attendance as a witness is desired. 
 If for any reason formal notice is required, the trial judge 
 advocate will request the proper commanding officer to 
 order him to attend, but if mileage is involved the area or 
 department commander or other proper superior will be 
 requested to issue the necessary order. Fees will not be paid 
 to military witnesses on the active list, and they are entitled 
 only to the mileage allowances due them under their travel 
 orders. The attendance as witnesses of persons on the re- 
 tired list (not assigned to active duty) should be obtained 
 in the same manner, and they are entitled to the same fees 
 and mileage as civilian witnesses not in the Government em- 
 ploy. No travel order will be issued in such cases. 
 
 164. PROCEDURE TO SECURE ATTENDANCE OF CIVILIAN WIT- 
 NESS. Unless he has reason to believe that a formal service 
 of subpoena will be required, the trial judge advocate will 
 
 135 
 
^[ 165 CHAPTER X. 
 
 endeavor to secure the attendance of a civilian witness by 
 correspondence with him, sending him duplicate subpoana 
 properly filled out, with a request to accept service on one 
 by signing the printed statement, "I hereby accept service 
 of the above subpoena," and to return same to the trial 
 judge advocate, for which purpose a return addressed pen- 
 alty envelope should be inclosed. Ordinarily there will be 
 no difficulty in securing the voluntary attendance of a civil- 
 ian witness if he is informed that his fees and mileage will 
 not be reduced by reason of his voluntary attendance and 
 that a voucher for his fees and mileage going to and return- 
 ing from the place of the sitting of the court-martial will 
 be delivered to him promptly on being discharged from 
 attendance on the court. If such informal methods are in- 
 effective, formal duplicate subpo3na will be issued by the 
 trial judge advocate with a view to service on the witness. 
 If the witness is at or near the post where the court is sit- 
 ting, the service will be by the trial judge advocate or by 
 some person designated by him. If the witness is not at 
 or near the post where the court is sitting, but is at or near 
 another military post, command, or detachment, the trial 
 judge advocate will send the duplicate subpoena direct to the 
 commanding officer of such post, command, or detachment, 
 requesting service of the same. Upon receipt of the request 
 the officer receiving it will serve the subpoena or cause it to 
 be served. The service will be made without delay, and the 
 retained copy of the subpoena, with proof of service indorsed 
 on it, will be sent at once direct to the trial judge advocate. 
 If in any instance travel is necessary to serve the subpoena, 
 a request will promptly be made by the commanding officer 
 of the post, command, or detachment on the proper author- 
 ity for travel orders. If the witness does not reside near a 
 post, command, or detachment, the subpoena will be sent 
 direct to the area or department or other proper commander 
 requesting service of the same. (See par. 159, notes, supra.) 
 
 165. WHEN ACCUSED MUST BE CONFRONTED WITH WIT- 
 NESS. Depositions can not be introduced by the prosecution 
 in capital cases. (A. W. 25.) (As to what are capital cases, 
 see par. 41, supra.) In such cases, therefore, as well as in 
 
 136 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS. *[j 166 
 
 others in which the trial judge advocate or the defense counsel 
 believes that the interests of justice demand that the accused 
 be confronted by a witness against him, or believes that for 
 any reason a witness should testify in the presence of the 
 court, the trial judge advocate will take the necessary steps to 
 secure the attendance of such witness or witnesses. 
 
 NOTE. A case referred to a special court-martial for trial, under 
 the provisions of the last proviso of A. W. 12 as amended by the code 
 of 1920, is not a " capital case " within the meaning of this paragraph, 
 since a special court-martial has no power to impose the death 
 penalty. 
 
 166. PROCEDURE TO OBTAIN BOOKS, DOCUMENTS, OR 
 PAPERS. If a civilian has in his possession a book, docu- 
 ment, or paper desired to be introduced in evidence, a sub- 
 poena duces tecum will be prepared and issued by the trial 
 judge advocate directing the person to appear in court and 
 to bring with him such book, document, or paper, which 
 should be described in sufficient detail to enable it to be 
 readily identified. 
 
 NOTE. For form, see Appendix 19. 
 
 167. CIVILIAN WITNESS IN CONFINEMENT. The testimony 
 of a witness who is in confinement in the hands of the civil 
 authorities will ordinarily be obtained by means of a depo- 
 sition (A. W. 25), but if for any reason it is necessary that 
 such a witness testify in court, an endeavor should be made 
 by the trial judge advocate to make arrangements with the 
 civil authorities to obtain his appearance. 
 
 168. WARRANT OF ATTACHMENT. In view of the provi- 
 sions of A. W. 23 providing for the punishment on informa- 
 tion before a district court of the United States or in a court 
 of original criminal jurisdiction in any of the territorial 
 possessions of the United States of a civilian who willfully 
 neglects or refuses, after he has been duly subpoenaed, to ap- 
 pear as a witness before any military court, commission, 
 court of inquiry, or board, or before any officer, military or 
 civil, designated to take a deposition to be read in evidence 
 before such court, commission, court of inquiry, or board, cir- 
 cumstances requiring the issue of a warrant of attachment 
 will be very rare. (For form, see Appendix 20.) When- 
 
 137 
 
If 169 CHAPTER X. 
 
 ever it becomes necessary to issue a warrant of attachment, 
 the trial judge advocate or summary court-martial will 
 direct or deliver it for execution to an officer designated 
 by the area or department commander for the purpose. (12 
 Op. Atty. Gen., 501.) As the arrest of a person under a war- 
 rant ol attachment involves depriving him of his liberty, the 
 authority for such action may be inquired into by a writ of 
 habeas corpus. For this reason the officer executing the war- 
 rant of attachment should be provided with the following 
 papers to enable him to make a full return in case a writ of 
 habeas corpus is served upon him : 
 
 (a) A copy of the charges in the case, sworn to be a full 
 and true copy of the original by the trial judge advocate of 
 the court (or summary court-martial). 
 
 (b) A copy of the order appointing the court-martial, 
 sworn to be a full and true copy of the original by the trial 
 judge advocate of the court (or summary court-martial). 
 
 (c) A copy of the order referring the charges to the court for 
 trial, sworn to be a full and true copy of the original by the trial 
 judge advocate (or summary court-martial). 
 
 (d) The original subpoena, showing proof of service of 
 same. 
 
 (e) An affidavit of the trial judge advocate or summary 
 court-martial that the person being attached is a material 
 witness in the case; that he has failed and neglected to 
 appear, although sufficient time has elapsed for that pur- 
 pose; and that no valid excuse has been offered for such 
 failure to appear. 
 
 (/) The original warrant of attachment. 
 
 In executing such process it is lawful to use only such 
 force as may be necessary to bring the witness before the 
 court. Whenever force is actually required, the post com- 
 mander nearest the residence of the witness will furnish a 
 military detail sufficient to execute the process. 
 
 169. HABEAS CORPUS PROCEEDINGS IN CONNECTION WITH 
 ATTACHMENTS. (a) If, in executing a warrant of attach- 
 ment, the officer detailed for that purpose should be served 
 with a writ of habeas corpus from any United States court, 
 or by a United States judge, for the production of the wit- 
 
 138 
 
COURTS-MARTIAL WITNESSES AETD DEPOSITIONS. <j[ 170 
 
 ness, the writ will be promptly obeyed, and the person alleged 
 to be illegally restrained of his liberty will be taken before 
 the court from which the writ has issued and a return made 
 setting forth the reasons for his restraint. The officer upon 
 whom such a writ is served will at once report by telegraph 
 the fa<;t of such service direct to The Adjutant General of 
 the Army and to the commanding general of the division, 
 force, area, or department. (See Appendix 22, Form A.) 
 
 (b) If, however, the writ of habeas corpus is issued by 
 any State court (or a State judge), it will be the officer's 
 duty to make respectful return, in writing, informing the 
 court that he holds the person named in the writ by author- 
 ity of tho United States pursuant to a warrant of attach- 
 ment issued under Chapter II of the act of Congress approved 
 June 4, 1920 (A. W. 22), by a trial judge advocate of a law- 
 fully convened - general or special court-martial (or by a 
 summary court-martial), and that the Supreme Court of 
 the United States has decided that State courts and judges 
 are without jurisdiction in such cases. (See Appendix 22, 
 Form B.) After having made the above return to a writ 
 issued by a State court or judge, it is the duty of the officer 
 to hold the prisoner in custody under his warrant of attach- 
 ment and to refuse obedience to the mandate or process of 
 any government except that of the United States. Conse- 
 quently, it is his duty not to take the prisoner, nor suffer 
 him to be taken, before a State judge or court upon a writ of 
 habeas corpus issued under State authority. 
 
 170. PUNISHMENT FOR KEFUSAL TO APPEAR OR TESTIFY. 
 Although the attendance of a witness as above described can 
 be enforced, there is no power in a court-martial itself to 
 compel a witness to testify or to punish him for not testify- 
 ing. The only procedure is that provided in A. W. 23, as 
 follows : 
 
 Every person not subject to military law, who being duly 
 subpoenaed to appear as a witness before (a) any military 
 court, commission, court of inquiry, or board, or (&) any 
 officer, military or civil, designated to take a deposition to 
 be read in evidence before such court, commission, court of 
 inquiry, or board, willfully (a) neglects or refuses to appear, 
 
 139 
 
If 171 CHAPTER X. 
 
 or (b) refuses to qualify as a witness or to testify, or (c) 
 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, or in 
 a court of original criminal jurisdiction in any of the Ter- 
 ritorial possessions of the United States, jurisdiction being 
 hereby conferred upon such courts for such purpose; and 
 it shall be the duty of the United States district attorney or 
 the officer prosecuting for the Government in any such court 
 of original criminal jurisdiction, on the certification of the 
 facts to him by the military court, commission, court of in- 
 quiry, or board, to file an information against and prosecute 
 the person so offending, and the punishment of such person, 
 on conviction, shall be a fine of not more than $500, or im- 
 prisonment not to exceed six months, or both, at the discre- 
 tion of the court: Provided, That the .fees of such witness 
 and his mileage, at the rates allowed to witnesses attending 
 the courts of the United States, shall be duly paid or ten- 
 dered said witness, such amounts to be paid out of the appro- 
 priation for the compensation of witnesses. (A. W. 23.) 
 
 NOTE. If an officer who is charged with serving a subpoena pays the 
 necessary fees and mileage to a witness, taking a receipt therefor, he 
 is entitled to reimbursement. (Dec. Comp. Treas., Sept. 10, 1901, pub- 
 lished in Cir. 38, A. G. O. 1001.) 
 
 171. SAME IN PHILIPPINE ISLANDS. Every person not be- 
 longing to the Army of the United States, who, in the Philip- 
 pine Islands, being duly subpoenaed to appear therein as a 
 witness before a general court-martial of said Army (or 
 naval court), willfully neglects or refuses to appear, or re- 
 fuses 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 $500 United States currency, or imprisonment not 
 to exceed six months, or both, at the discretion of the court, 
 and it shall be the duty of the proper fiscal or prosecuting 
 officer, on the certification of the facts to him by the general 
 court-martial, to file in the proper court a complaint against 
 and prosecute the person so offending: Provided, That $1.50 
 United States currency for each day's attendance, and 5 cents 
 
 140 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS, ^f 172 
 
 United States currency per mile for going from his residence 
 to the place of trial or hearing, and 5 cents per mile for re- 
 turning, 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 in- 
 criminate him. (Acts 1130 and 1243, P. I. Commission.) 
 The provisions of this paragraph do not apply to witnesses 
 before special and summary courts. 
 
 NOTE. Employees of the civil government of the Philippine Islands, 
 paid from insular funds of the islands, are held not to be in the em- 
 ploy of the United States. (Dec. Comp. Treas., Aug. 20, 1902, pub- 
 lished in Cir. 45, A. G. O., 1902.) 
 
 172. TENDER or FEES PRELIMINARY TO PROSECUTION. In 
 case a civilian witness is duly subpoenaed under the authority 
 of A. W. 22 and willfully neglects or refuses to appear or 
 refuses to qualify as a witness, or to testify or produce docu- 
 mentary evidence which he may have been legally subpoenaed 
 to produce, he will at once be tendered or paid by the nearest 
 finance officer one day's fees and mileage for the journeys to 
 and from the court, and will thereupon be again called upon 
 to comply with the requirements of the law. Upon failing 
 the second time to comply with the requirements of the law a 
 complete report of the case will be made to the officer exercis- 
 ing general court-martial jurisdiction over the command 
 with a view to presenting the facts to the Department of 
 Justice for the punitive action contemplated in A. W. 23. 
 
 173. CONTEMPTS. (a) Authority to Punish. A military 
 tribunal may punish, as for contempt, any person who uses 
 any menacing words, signs, or gestures in its presence, or 
 who disturbs its proceedings by any riot or disorder: Pro- 
 vided, That such punishment shall in no case exceed one month's 
 confinement, or a fine of $100, or both. (A. W. 32.) The 
 power to so punish is vested in general, special, and sum- 
 mary courts-martial. Punishments adjudged for contempt, 
 like other punishments adjudged by courts-martial, require 
 the approval of the reviewing authority in order to be 
 effective. 
 
 (b) Persons Who May Be Punished for Contempt. The 
 words " any person," as used in A. W. 32, appear to include 
 
 141 
 
^[ 173 CHAPTER X. 
 
 civilians as well as military persons. In view, however, of 
 the embarrassment liable to attend the execution, through 
 military machinery, of a punishment adjudged against a 
 civilian for a contempt under the article, it would generally 
 be advisable for the court to confine itself to causing the 
 party to be removed as a disorderly person, and, in an aggra- 
 vated instance, to procure a complaint to be lodged against 
 him for breach of the public peace. (Winthrop, p. 462.) 
 
 (c) Direct and Constructive Contempts. A direct con- 
 tempt is one committed in the presence or immediate prox- 
 imity of a court while it is in session. An indirect or con- 
 structive contempt is one not so committed. The conduct 
 described in A. W. 32 constitutes direct contempt. But con- 
 duct on the part of a person subject to military law and 
 amounting to a constructive contempt may be punished like 
 any other conduct that is prejudicial to good order and mili- 
 tary discipline, by bringing the person to trial before an- 
 other court on charges under A. W. 96. 
 
 Constructive contempts by civilians are punishable as "of- 
 fenses against public justice," under A. W. 23, by proper pro- 
 ceedings in the United States courts. In such cases it is the duty 
 of the trial judge advocate of a general or special court-martial, 
 or of the summary court, to place the facts before the nearest 
 United States district attorney. 
 
 (d) Procedure. Where a contempt within the descrip- 
 tion of A. W. 32 has been committed and the court deems it 
 proper that the offender shall be punished, the proper course 
 is to suspend the regular business and, after giving the party 
 an opportunity to be heard in explanation, to proceed, if 
 the explanation is insufficient, to impose a punishment, re- 
 suming thereupon the original proceedings. The action 
 taken is properly summary, a formal trial not being called 
 for. Close confinement in quarters or in the guardhouse 
 during trial of the pending case or forfeiture of a reasonable 
 amount of pay, has been the more usual punishment. A full 
 record of the proceeding is at once made, not separate from, 
 but in and as a part of the regular record of the case on 
 trial, showing the occasion and circumstances of the con- 
 tempt, the words or acts which constituted it, the excuse 
 
 142 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS. ^ 174 
 
 or statement, if any, of the party, the action taken by the 
 court, its judgment and the disposition of the offender. 
 (Winthrop, p. 469.) Instead of proceeding against a mili- 
 tary person for contempt in the manner contemplated by 
 this article, the alternative course may be pursued of bring- 
 ing him to trial before a new court on a charge of a dis- 
 order under A. W. 96. 
 
 SECTION H. 
 DEPOSITIONS. 
 
 174. WHEN ADMISSIBLE. A duly authenticated deposition 
 taken upon reasonable notice to the opposite party may be 
 read in evidence before any military court or commission in 
 any case not capital, or in any proceeding before a court of 
 inquiry or a military board, if such deposition be taken when 
 the witness resides, is found, or is about to go beyond the 
 State, Territory, or District in which the court, commission, 
 or board is ordered to sit, or beyond the distance of 100 
 miles from the place of trial or hearing, or when it appears 
 to the satisfaction of the court, commission, board, or ap- 
 pointing authority that the witness, by reason of age, sick- 
 ness, bodily infirmity, imprisonment, or other reasonable 
 cause, is unable to appear and testify in person at the place 
 of trial or hearing : Provided, That testimony by deposition 
 may be adduced for the defense in capital cases. (A. W. 25.) 
 
 NOTE. For form for interrogatories and depositions, see Appen- 
 dix 17. 
 
 I74a. Depositions upon Oral Interrogatories. If reasonably 
 practicable, and upon request of the accused or his counsel, or of 
 the trial judge advocate, or upon the direction of the court, com- 
 mission, or board, depositions may be taken upon oral interroga- 
 tories and reduced to writing in the manner prescribed in para- 
 graph 18LJ, infra, and may be read in evidence in the same 
 manner and for the same purposes in like cases as depositions 
 taken upon written interrogatories under paragraphs 176 and 
 177 of this Manual. 
 
 175. BEFORE WHOM TAKEN. Depositions to be read in 
 evidence before military courts, commissions, courts of in- 
 
 143 
 
^[ 176 CHAPTER X. 
 
 quiry, or military boards, or for other use in military ad- 
 ministration, may be taken before and authenticated by any 
 officer, military or civil, authorized by the laws of the United 
 States or by the laws of the place where the deposition is 
 taken to administer oaths. (A. W. 26.) 
 
 176. INTERROGATORIES, How SUBMITTED. The procedure 
 for submitting interrogatories for a deposition is as follows : 
 
 (a) The party desiring the deposition submits to the op- 
 posite party the interrogatories which he wishes propounded 
 to the person whose deposition he desires, and the opposite 
 party then submits to him such cross-interrogatories, if any, 
 as he may desire. Such additional direct and cross-inter- 
 rogatories may be submitted as desired; or 
 
 (b) The party desiring the deposition submits to the court, 
 military commission, or board the interrogatories which he 
 wishes propounded to the person whose deposition he desires. 
 The opposite party then submits to the court, military com- 
 mission, or board such cross-interrogatories, if any, as he may 
 desire. The court, military commission, or board then sub- 
 mits such additional interrogatories as it may deem proper 
 and desirable, and such additional direct and cross-inter- 
 rogatories may be submitted as are desired. 
 
 (c) Where the court, military commission, or board de- 
 sires that the deposition of a particular person be obtained, 
 it will cause interrogatories to be prepared accordingly. The 
 prosecution and defense (or other party or parties in inter- 
 est) then submit such interrogatories as they may desire. 
 Such additional interrogatories may be included as are de- 
 sired by the court, military commission, or board, or by a 
 party in interest. 
 
 177. PROCEDURE TO OBTAIN DEPOSITION. (a) All the in- 
 terrogatories to be propounded to the person are entered 
 upon the form of interrogatories and deposition, and the trial 
 judge advocate, summary court, or recorder will take appro- 
 priate steps to cause the desired deposition to be taken with 
 the least practicable delay. In an ordinary case he will 
 either send the interrogatories to the commanding officer of 
 the post, recruiting station, or other military command at or 
 nearest which the person whose deposition is desired is 
 stationed, resides, or is understood to be, or will send them 
 
 144 
 
COUKTS-MARTIAL WITNESSES AND DEPOSITIONS. If 177 
 
 to some other responsible person, preferably a person com- 
 petent to administer oaths, at or near the place at which the 
 person whose deposition is desired is understood to be. In 
 a proper case the interrogatories may be sent to the division, 
 area, or department or other superior commander or to the 
 witness himself, and in any case they will, when necessary, 
 be accompanied by a proper explanatory letter. 
 
 (b) When interrogatories are received by a commanding 
 officer, he will either take or cause to be taken the deposition 
 thereon. He will send an intelligent person preferably an 
 officer, if available, or a person with legal training or ex- 
 perience if available, accompanied if practicable by a military 
 stenographic reporter or stenographer to the necessary place 
 for the purpose of obtaining the deposition, or he may 
 properly arrange by mail or otherwise that the deposition 
 be taken, if he can make such arrangements as to assure him- 
 self that the work will thus be properly done, The deposition 
 will be taken with the least practicable delay, and when 
 taken will be sent at once direct to the trial judge advocate 
 of the court-martial trying the case, or other proper person. 
 
 (c) If the witness whose deposition is desired is a civilian, 
 the trial judge advocate or other proper person sending 
 interrogatories as above will inclose with them a prepared 
 voucher for the fees and mileage of the witness, leaving 
 blank such spaces provided therein as it may be necessary 
 to leave blank, accompanied by the required number of 
 copies of the orders appointing the court, military commis- 
 sion, or board. The trial judge advocate, summary court, 
 or recorder will also send with the interrogatories duplicate 
 subpoena requiring the witness to appear in person at a time 
 and place to be fixed by the officer, military or civil, who is 
 to take the deposition. If the name of this officer is not 
 known, the space provided for it will be left blank. If a 
 military officer takes the deposition, he will complete the wit- 
 ness voucher, certify it, and transmit it to the nearest dis- 
 bursing finance officer for payment. When the deposition is 
 to be taken by a civil officer he will be asked to obtain and 
 furnish to the military officer requested or designated to 
 cause the deposition to be taken the necessary data for the 
 
 21358 20 10 
 
 145 
 
f 178 CHAPTER X. 
 
 completion- of the witness voucher, and the latter will com- 
 plete the voucher, certify it, and transmit it to the nearest 
 disbursing finance officer for payment. 
 
 In the case of a military witness subpoena will not ac- 
 company the interrogatories, but the officer before whom the 
 deposition is to be taken will take the necessary steps to have 
 the witness appear at the proper time and place. 
 
 ITS. TRACING DELAYED DEPOSITIONS. Trial judge advo- 
 cates and defense counsel will be prompt in preparing and 
 forwarding interrogatories. If the deposition is not re- 
 ceived within a reasonable time, a letter of inquiry will be 
 sent; and, if a prompt explanation of the delay is not re- 
 ceived, the area or department commander or other proper 
 superior will be advised. 
 
 179. DESIGNATION OF DEPONENT BY OFFICIAL TITLE. 
 Where it is desired to take the deposition of some person 
 holding a certain office or position, as, for instance, a troop 
 commander, master sergeant, first sergeant, cashier of a 
 bank, post exchange officer, etc., and the name of the person 
 is unknown, interrogatories may be prepared in the usual 
 way for submission to the person holding the office or posi- 
 tion, without naming him unless it shall appear that the 
 accused will be prejudiced thereby. 
 
 180. DEPONENT'S ANSWERS TO BE RESPONSIVE. Before a 
 witness gives his answers to the interrogatories they should 
 be read and, if necessary, be explained to him, or he should 
 be permitted to read them over in order that his answers 
 may be clear, full, and to the point. The person taking the 
 deposition should not advise the witness how he should an- 
 swer, but he should endeavor to see that the witness under- 
 stands the questions and what is desired to be brought out 
 by them, and that his answers are clear, full, and to the 
 point. 
 
 181. FEES FOR TAKING DEPOSITIONS. Civil officers before 
 whom depositions are taken for use before courts-martial 
 will be paid the fees allowed by the law of the place where 
 the depositions are taken. 
 
 181J. Depositions upon Oral Interrogatories Procedure. The 
 procedure for procuring depositions upon oral interrogatories is 
 as follows: 
 
 146 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS.^" 18 Ij 
 
 (a) The party desiring the deposition on oral interrogatories 
 will so notify the opposite party, and also the court, commis- 
 sion, or board, in writing, and may at the same time outline 
 the subject upon which he desires the witness interrogated and 
 the main questions which he wants propounded to him, at the 
 same time attaching a copy of the charges and specifications 
 (or, in case of a court of inquiry or other board, a brief state- 
 ment of the matter under investigation) so as to better enable 
 the counsel examining the witness to cover all the ground and 
 intelligently interrogate the witness upon the points upon which 
 information is desired. The opposite party may thereupon sub- 
 mit within 24 hours, if so desired, an outline of the points upon 
 which he particularly desires the witness cross-examined with 
 the main cross-interrogatories to be propounded. The court, 
 board, or commission may, if it desires, similarly outline any 
 matter or questions upon which, on its behalf, the witness shall 
 be interrogated. 
 
 (b) Where the court, commission, or board desires the deposi- 
 tion of a witness taken on its behalf, on oral interrogatories, the 
 same procedure will be followed; i. e., all parties will be given 
 an opportunity to participate in the deposition in the manner 
 hereinbefore prescribed. 
 
 (c) Such notice and all the accompanying papers, as pre- 
 scribed in the preceding subparagraph, including such charges 
 (or subject matter to be investigated by a court of inquiry or 
 board, as the case may be), will be sent by the trial judge ad- 
 vocate, summary court, recorder, or board to the commanding 
 officer of the post, recruiting station, or other military command 
 at or nearest which the person whose deposition is desired is 
 stationed, resides, or is understood to be. In case the witness is 
 a civilian, the papers will be accompanied by a subpoena and a 
 prepared voucher for his or her signature for witness fees and 
 mileage. Where requests for depositions upon oral interroga- 
 tories are sent to a commanding officer, such officer will cause 
 the deposition to be accomplished in the presence of a summary 
 court or other officer, civil or military, authorized by law to 
 administer oaths; and an available trial judge advocate of a 
 general or special court-martial will ordinarily be detailed to 
 represent the United States, and available defense counsel of a 
 
 147 
 
If 182 CHAPTER X. 
 
 general or special court-martial to represent the accused; but if 
 there be no such trial judge advocate or assistant or defense coun- 
 sel or assistant available, some other suitable person will be desig- 
 nated ; and in no case will an accused be deprived of the right to 
 be represented by counsel of his own selection, civil counsel if 
 he so provides, or military if such counsel be reasonably avail- 
 able. A military stenographer will, if practicable, be detailed 
 to take down and transcribe the deposition. In propounding 
 questions to the witness such trial judge advocate and defense 
 counsel (or other counsel retained or appointed or detailed for 
 such duty) will be careful to cover all the matters set out in 
 the outlines of the subjects upon which the witness is to be in- 
 terrogated, and to propound all the questions submitted by the 
 parties whom they represent, respectively (the trial judge ad- 
 vocate acting also for the court, commission, or board in so in- 
 terrogating the witness), and such additional questions as may 
 in the interests of justice appear desirable, having due regard 
 for the rules of evidence applicable before courts-martial. (For 
 method of completion and authentication, see form, Appendix 
 
 17.) 
 
 (d) The summary court officers, trial judge advocates, and 
 defense counsel called upon to take part in taking depositions 
 upon oral interrogatories hereunder will use their best efforts 
 to obtain from the witness the same results as though he had 
 been interrogated in the ordinary way in open court, and in no 
 case will such duty be permitted to be performed in a perfunc- 
 tory manner. 
 
 (e) Upon receipt of the accomplished deposition and signed 
 vouchers, the trial judge advocate, summary court, or recorder 
 will complete and certify such vouchers and send them to the 
 nearest finance office for payment. 
 
 182. TAKING DEPOSITIONS IN FOREIGN COUNTRY. If the 
 evidence desired from a witness residing in a foreign country 
 is necessary and material and is desired to be read before a 
 court-martial, military commission, court of inquiry, or 
 military board sitting within any of the States of the Union 
 or the District of Columbia, interrogatories (accompanied 
 by the necessary vouchers for fees and mileage) will ordi- 
 
 148 
 
COURTS-MAETIAL WITNESSES AND DEPOSITIONS, ^f 183 
 
 narily be forwarded through military channels to The Adju- 
 tant General of the Army. They will then be transmitted 
 by the Secretary of War to the Secretary of State, with the 
 request that they be sent to the proper consul of the United 
 States and the deposition of the witness be taken. In the 
 case of troops serving along the international boundaries, 
 outside of the United States proper, or in foreign countries, 
 the officer exercising general court-martial jurisdiction may, 
 in his discretion, detail an officer to take the deposition of a 
 civilian witness, or he may send the interrogatories direct 
 to the consul of the United States nearest the place of resi- 
 dence of the witness with the request that the deposition be 
 taken. In the latter case the interrogatories will be accom- 
 panied by the proper vouchers for the fees and mileage of 
 the witness. 
 
 NOTE. For use of depositions as evidence, see Chapter XI, Evi- 
 dence. 
 
 SECTION III. 
 
 FEES, MILEAGE, AND EXPENSES OF WITNESSES. 
 
 183. OFFICERS AND SOLDIERS, ACTIVE OR RETIRED. Officers 
 and soldiers on the active list required to attend a court- 
 martial as witnesses are not entitled to receive mileage and 
 fees like civilian witnesses, but are entitled to such travel 
 allowances as the law allows to officers and soldiers travel- 
 ing under orders ; but a retired officer, not assigned to active 
 duty, or a retired soldier is entitled to the per diem and 
 mileage provided for civilian witnesses not in Government 
 employ. 
 
 NOTE. The fees, mileage, and expenses of persons in the military 
 service or of civilians in the Government employ duly subpoenaed 
 and appearing before civil courts, whether State or Federal, are pay- 
 able by the civil authorities. 
 
 184. CIVILIANS IN GOVERNMENT EMPLOY. Civilians in the 
 employ of the Government when traveling upon summons as 
 witnesses before military courts are entitled to transportation 
 in kind from their place of residence to the place where the 
 court is in session and return. If no transportation be fur- 
 nished they are entitled to reimbursement of the cost of travel 
 
 149 
 
*[[ 185 CHAPTER X. 
 
 actually performed by the shortest usually traveled route, 
 including transfers to and from railway stations, at rates 
 not exceeding 50 cents for each transfer, and the cost of 
 sleeping-car accommodations to which entitled or steamer 
 berth when an extra charge is made therefor. They are 
 also entitled to reimbursement of the actual cost of meals 
 and rooms at a rate not exceeding $3 per day for each day 
 actually and unavoidably consumed in travel or in attend- 
 ance upon the court under the order or summons. No allow- 
 ance will be made to them when attendance upon court does 
 not require them to leave their stations. 
 
 185. CIVILIANS NOT IN GOVERNMENT EMFLOY. A civilian 
 not in Government employ duly summoned to appear as a 
 witness before a military court, commission, or board, or at 
 a place where his deposition is to be taken for use before 
 such court, commission, or board, will receive $1.50 for each 
 day of his actual attendance before such court, commission, 
 or board, or for the purpose of having his deposition taken, 
 and 5 cents a mile for going from his place of residence to 
 the place of trial or of the taking of his deposition, and 5 
 cents a mile for returning, except as follows : 
 
 (a) In Porto Eico and Cuba he will receive $1.50 a day 
 while in attendance as above stated and 15 cents for each 
 mile necessarily traveled over stage line or by private con- 
 veyance and 10 cents for each mile over any railway or 
 steamship line. 
 
 (ft) In Alaska, east of the one hundred and forty-first 
 degree of west longitude, he will receive $2 a day while in 
 attendance as above stated and 10 cents a mile, and west of 
 said degree $4 a day and 15 cents a mile. 
 
 (c) In the States of Wyoming, Montana, Washington, 
 Oregon, California, Nevada, Idaho, Colorado, Utah, New 
 Mexico, and Arizona, he will receive $5 a day for the time of 
 actual attendance as above stated, and for the time neces- 
 sarily occupied in going to and returning from the same, 
 and 15 cents for each mile necessarily traveled over any 
 stage line or by private conveyance and 5 cents for each mile 
 by any railway or steamship. 
 
 NOTE. 1. Travel must be estimated by the shortest usually traveled 
 route by established lines of railroad, stage, or steamer the time 
 
 150 
 
COURTS-MARTIAL WITNESSES Am> DEPOSITIONS. ^ 186 
 
 occupied to be determined by the official schedules, reasonable allow- 
 ance being made for unavoidable detention. 
 
 2. These rates apply to the Philippine Islands. (See Cir. 45, A, 
 G. O., 1902.) 
 
 3. A civilian not in Government employ, when furnished transporta 
 tion on transport or other Government conveyance, is entitled to 57.142 
 per cent of 5 cents per mile (equal to 2.857 cents per mile). (Cornp. 
 Dec., Aug. 20, 1902, published in Cir. 45, A. G. O., 1902.) 
 
 186. PAYMENT FOR RETURN JOURNEY. The charges for re- 
 turn journeys of witnesses will be made upon the basis of the 
 actual charges allowed for travel to the place of giving testi- 
 mony, and the entire amount thus completed will be paid 
 upon discharge from attendance, without waiting for com- 
 pletion of return travel. 
 
 187. CONTENTS OF VOUCHERS. The items of expenditure 
 authorized for civilian witnesses will be set forth in detail 
 and made a part of each voucher for reimbursement. No 
 other items will be allowed. 
 
 The certificate of the trial judge advocate, or other officer, 
 will be evidence of the fact and period of attendance, and 
 will be made upon the voucher. 
 
 When payment is made under the provisions of paragraph 
 184, the correctness of the items will be attested by the affi- 
 davit of the witness, to be made, when practicable, before the 
 officer who certifies the voucher. 
 
 188. WITNESS IN SEVERAL TRIALS ON SAME DAY. A civil- 
 ian attending as a witness in several court-martial trials on 
 the same day is entitled to a separate fee for attendance in 
 each case (Dig. Dec. Comp., 1894 to 1902, p. 476), but will 
 receive mileage in only one case. 
 
 189. VOUCHER TO BE DELIVERED TO WITNESS. A civilian 
 witness not in Government employ who appears to testify is 
 entitled, upon his discharge from attendance, to receive from 
 the trial judge advocate, if any (or summary court, recorder 
 of court of inquiry or board, etc.), his witness voucher prop- 
 erly filled out. If not practicable to deliver to the witness 
 his voucher at that time, his address will be obtained and his 
 witness voucher will be promptly forwarded to the nearest 
 disbursing finance officer. To entitle a witness to the pay- 
 ment of fees and mileage it is not essential that he should 
 produce a subpoena. 
 
 151 
 
^[ 190 CHAPTER X. 
 
 190. LOST VOUCHER. Where the voucher of a witness has 
 been lost, a new voucher may be issued by the trial judge 
 advocate upon a satisfactory showing of such loss, supported 
 by affidavit. The new voucher should be so noted as to in- 
 dicate its character and should be forwarded to the Chief of 
 Finance for settlement. 
 
 191. FEES FOR SERVICE OF SUBPCEXA. There is no fee or 
 compensation fixed by statute or regulation for the service 
 of subpoena to secure the attendance of witnesses before mili- 
 tary courts. Ordinarily service will be made by an officer or 
 soldier or other person subject to military law, but if service 
 by a civilian is deemed by the trial judge advocate or area or 
 department, division, camp, or other superior commander to be 
 preferable, the services of a civilian may be used, and the 
 fees and mileage allowed by law in that locality for similar 
 services may be paid by a finance officer from the appropria- 
 tion " for expenses of courts-martial, etc." 
 
 192. EMPLOYMENT OF EXPERTS. When the employment of 
 an expert is necessary during a trial by court-martial the 
 necessity for such employment should be made to appear by 
 a resolution of the court. This resolution will be forwarded 
 by the trial judge advocate, in advance of the employment, 
 to the authority appointing the court, with a request for 
 authority to employ the expert and for a decision as to the 
 compensation to be paid him. The request should, if practi- 
 cable, state the compensation that is recommended by the 
 trial judge advocate and the defense counsel. The compensa- 
 tion of the expert, including the compensation for photo- 
 graphs that may be necessary in connection with his testi- 
 mony, will be paid out of the appropriation " for expenses 
 of courts-martial, etc." 
 
 NOTE. Where, in advance of trial, the trial judge advocate or the 
 defense counsel knows that the employment of an expert will be 
 necessary, he should, without delay, apply to the appointing authority 
 for authority to employ the expert, stating the necessity therefor and 
 probable cost thereof. 
 
 193. EXPENSES or COURTS-MARTIAL, ETC., How PAYABLE. 
 The fees of civilian witnesses, the mileage of both civil and 
 militan' witnesses, the legal fee of the proper official for 
 certified copy of a marriage certificate, the expense of pro- 
 
 152 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS, ^f 193 
 
 curing a transcript of a stenographer's notes of testimony 
 taken before a United States commissioner, the fees of a 
 notary for swearing a witness, and the expenses (in- 
 cluding railway fare and hotel bills) of a United States 
 consul stationed in a foreign country in taking depositions, 
 when such items are incurred in connection with a trial be- 
 fore a court-martial or military commission, or investi- 
 gation before a court of inquiry, and other necessary expenses, 
 are paid by the Finance Department out of the annual appro- 
 priation " for expenses of courts-martial, etc." If no finance 
 officer be present at the place where the court it sitting, the 
 vouchers may be transmitted direct to any finance officer. 
 Such vouchers are not transferable. 
 
 NOTE. Blank vouchers may be procured from any disbursing 
 finance officer. 
 
 153 
 
CHAPTER XI. 
 COURTS-MARTIALEVIDENCE. 
 
 (Revised and approved by Professor Wigrnore, Colonel, Judge 
 Advocate, Reserve Corps.) 
 
 Section I. Introductory provisions: 
 
 194. General remarks 157 
 
 195. The issues 158 
 
 198. Analysis of evidence by trial judge advocate and 
 
 counsel 159 
 
 197. Duties of court Opening statements 160 
 
 198. Rules of evidence for courts-martial 161 
 
 199. Rules where found 162 
 
 200. Rules of evidence to be applied irrespective of rank 163 
 
 201. Protection of witnesses 163 
 
 202. Evidence must be material and relevant 163 
 
 202a. Court-martial should reject improper evidence al- 
 though not objected to 165 
 
 Section II. Circumstantial evidence : 
 
 203. Circumstantial evidence 165 
 
 204. Illustration of difference between good and bad circum- 
 
 stantial evidence 166 
 
 205. Accused's bad character 167 
 
 206. Same Exceptions 167 
 
 Section III. Testimonial evidence: 
 
 207. Testimonial evidence 169 
 
 208. Competency rule in general 169 
 
 209. Elements of competency of witness 169 
 
 210. General capacity of witness 169 
 
 210a. Children as witnesses 170 
 
 211. Moral incapacity of witness 170 
 
 212. Mental incapacity of witness 170 
 
 213. Interest or bias 170 
 
 214. Where accused is witness 171 
 
 215. Procedure where accused fails to testify or make a 
 
 statement 172 
 
 216. Effect of turning state's evidence 173 
 
 217. Competency of accused when testifying against an ac- 
 
 complice 173 
 
 218. Expert capacity 173 
 
 219. Insanity or mental defect or derangement of accused 174 
 
 220. Testimonial knowledge 179 
 
 221. Hearsay rule ISO 
 
 221a. Exceptions to the hearsay rule 1S1 
 
 222. Dying declarations 183 
 
 223. Res gestse 184 
 
 154 
 
COURTS-MARTIAL* EVIDENCE. 
 
 Section III. Testimonial evidence Continued. Page. 
 
 223a. Identification of the accused 185 
 
 224. Evidence of conspirators and accomplices 185 
 
 225. Confessions 186 
 
 226. Admissions against interest 190 
 
 227. Privileged communications 190 
 
 228. Privilege of wife and husband to testify 192 
 
 229. Telegrams not privileged 193 
 
 230. Confidential papers 193 
 
 231. Communications from officers or soldiers to medical 
 
 officer not privileged 193 
 
 232. Communications between civilian physicians and pa- 
 
 tients not privileged 194 
 
 233. Compulsory self-crimination prohibited 194 
 
 (a) Where privilege as to self-crimination ceases- 194 
 
 234. Privilege against self-crimination is a personal one 195 
 
 235. Procedure where alleged incriminating question is 
 
 asked 195 
 
 236. Not self-crimination to require accused to submit to 
 
 physical examination 195 
 
 Section IV. Documents: 
 
 236a. General rules applicable to documents 197 
 
 (1.) Rule 1. Production of the original 197 
 
 (2.) Rule 2. Giving testimonial status to a 
 
 writing 197 
 
 (3.) Rule 3. Hearsay rule exception for official 
 
 statements 197 
 
 (4) Rule ^Authentication 198 
 
 236b. Writings not in dispute 198 
 
 237. Manner of proving contents of writing 199 
 
 237a. Report of investigation officer Summary of evidence 
 
 of preliminary investigation 200 
 
 238. Public records 201 
 
 238a. Certain official writings are evidence of facts recited 
 
 therein 201 
 
 239. Authentication of writings 202 
 
 240. Comparison of handwriting 202 
 
 241. Use of memoranda 203 
 
 242. Memorandum as evidence 204 
 
 243. Memorandum for refreshing recollection 204 
 
 244. Books of account 204 
 
 245. Maps, photographs, etc ; 205 
 
 Section V. Examination of witnesses : 
 
 246. Witnesses examined apart from each other 205 
 
 247. Objections to competency; when made 205 
 
 248. Number of witnesses required 205 
 
 249. Order of examination of witnesses 206 
 
 250. Direct, examination Identification of accused 207 
 
 i 
 
 155 
 
CHAPTER XI. 
 
 flection V. Examination of witnesses Continued. Page. 
 
 251. Cross-examination 207 
 
 252. Redirect and recross examination 207 
 
 253. Examination by the court 207 
 
 253a. Questions by members of the court 208 
 
 254. Leading questions Double questions 208 
 
 255. Recalling of witnesses 211 
 
 Section VI. Credibility of witnesses : 
 
 256. What credibility consists in 211 
 
 257. Proof of character by general reputation 212 
 
 258. Conviction of crime 212 
 
 258a. Corroborative statements Identification of accused. 212 
 
 259. Contradiction by other witnesses 213 
 
 260. Inconsistent statements 214 
 
 261. Prejudice, bias, etc 215 
 
 262. Credibility of accused as a witness 215 
 
 262. Impeachment of one's own witness 215 
 
 Section VII. Depositions and former testimony: 
 
 263. Depositions admissible 216 
 
 264. Depositions for defense in capital cases 216 
 
 265. Objections as to competency of witness and adniissi- 
 
 bility of evidence 216 
 
 266. Examination of deposition by counsel 217 
 
 267. Reading of depositions 217 
 
 268. Miscellaneous provisions as to depositions 217 
 
 269. Affidavits not admissible 218 
 
 270. Certificate of discharge 218 
 
 271. Statement of service 218 
 
 272. Former testimony before csurt of inquiry 218 
 
 273. Evidence of pardon 219 
 
 274. Evidence of former trial by court-martial or civil 
 
 court 219 
 
 275. Former testimony in civil courts and courts-martial 220 
 
 Section VIII. Presumptions: 
 
 276. Presumptions 220 
 
 277. Presumptions of law 220 
 
 278. Presumptions of fact 221 
 
 279. Prima facie evidence 222 
 
 280. Intent in connection with crimes 222 
 
 281. Intent in military cases 223 
 
 282. Ignorance of law 224 
 
 283. Ignorance of fact 224 
 
 284. Evidence of desertion 225 
 
 (a) Statutory rules of evidence 227 
 
 285. Drunkenness as showing absence of intent 228 
 
 286. Drunkenness in military cases 229 
 
 287. Proof of drunkenness 229 
 
 288. Reasonable doubt and burden of proof 230 
 
 Section IX. Judicial notice: 
 
 289. Judicial notice 231 
 
 156 
 
COURTS-MARTIAL EVIDENCE. *f 194 
 
 SECTION I. 
 INTRODUCTORY PROVISIONS. 
 
 194. GENERAL REMARKS. The oath taken by members of 
 general and special courts requires them to try and determine 
 " according to evidence " the matter before them. A sum- 
 mary court, although it does not take such an oath, will also 
 determine the matter before it solely on the evidence in the 
 case, and no evidence would be admissible before a sum- 
 mary court that is not admissible before general and special 
 courts. The evidence thus referred to, according to which 
 the court must decide the case, means all the matters of 
 fact which the court permits to be introduced, or of which 
 it takes judicial notice, with a view to prove or disprove the 
 charges. Every item of this evidence must be introduced 
 in open court, and it would be seriously irregular and im- 
 proper for any member of the court to convey to other mem- 
 bers, or to consider himself, any personal information that 
 he possessed as to the merits of the case or the character of 
 the accused without stating it in open court and, if a wit- 
 ness for the prosecution, retiring as a member of the court, 
 as provided in A. W. 8 and 9. But while their knowledge of 
 the facts must come to them from the evidence, the members 
 are expected to utilize their common sense, their knowledge 
 of human nature, and the ways of the world in weighing 
 the evidence and arriving at a finding. In the light of all 
 the circumstances of the case, they should consider the in- 
 herent probability or improbability of the evidence given 
 by the several witnesses, and with this in mind the court 
 may properly believe one witness and disbelieve several 
 whose testimony is in conflict with that of the one. 
 
 The methods which are employed by courts of justice to 
 ascertain the facts that is, the truth respecting any past 
 transaction closely resemble those resorted to by an indi- 
 vidual for a similar purpose. If A desires to ascertain 
 whether a particular act did or did not take place, he ad- 
 dresses himself to those who were in a situation to observe 
 the occurrence itself, and so endeavors to obtain from each 
 person present his version of the occurrence. From the 
 
 157 
 
^f 195 CHAPTER XI. 
 
 testimony thus obtained he forms his conclusion as to 
 whether or not the act took place. In the course of his in- 
 vestigation, however, he finds that all who were present and 
 witnessed the occurrence as bystanders do not give testimony 
 of equal importance or value. Some having greater powers 
 of observation or better memories than others give in conse- 
 quence more valuable testimony. Some of the witnesses, 
 being children or persons of weak or unsound mind, are 
 without the requisite mental capacity to observe facts or to 
 appreciate their relations to each other; others, by reason 
 of their moral character, are not regarded as worthy of 
 belief by their fellow citizens; still others were insane or 
 quite under the influence of intoxicating liquor at the time 
 of the occurrence, and so were incapacitated from observing. 
 A, therefore, rejects some of the statements as entirely un- 
 trustworthy; to others he attaches weight in proportion to 
 their worthiness of belief, and so endeavors to reach a con- 
 clusion as to the truth of the occurrence or event which was 
 the original subject of his inquiry. (Davis, p. 244.) 
 
 195. THE ISSUES. It is well to understand, in the begin- 
 ning of this consideration of the rules of evidence, the 
 purpose for which the evidence is to be introduced in the 
 manner prescribed and laid down by the rules. The pur- 
 pose is to elucidate and settle the issues raised in the case 
 and to confine the evidence to such issues, under a well 
 devised and developed system of limitations that experience 
 has shown to best conserve the interests of all concerned. 
 
 In every criminal case the burden is on the prosecution 
 to prove, by relevant evidence, (a) that the offense charged 
 was really committed, (6) that the accused committed it, and 
 (c) that the accused had the requisite criminal intent at the 
 time. These three facts broadly constitute the issues in the 
 case. Incidental issues will be formed by the necessity for 
 proof of the essentials of an offense. Not only the allega- 
 tions set out in the charges and specifications, but the com- 
 ponent parts of such allegations as well, raise the issues to 
 be decided. For instance, in a case of larceny, where it is 
 charged that the accused " did take, steal, and carry away " 
 certain articles of value, the component parts of the alle- 
 
 153 
 
COTJRTS-MAKTIAL EVIDENCE. If 196 
 
 gallon not specifically set out are that such articles were 
 taken (a) fraudulently and (b) with the felonious intent 
 of depriving the owner of them. 
 
 196. ANALYSIS OF EVIDENCE BY Trial JUDGE ADVOCATE AND 
 COUNSEL. The ends of justice and saving of time of all con- 
 cerned imperatively demand careful analysis by both trial 
 judge advocate and counsel for accused of the evidence re- 
 quisite for proof of and defense against the offenses charged. 
 As a prerequisite to such analysis the law as to the offenses 
 charged should be studied with a view to determining the 
 essential elements of the offense ; that is, the things that must 
 be proved by the trial judge advocate in order to justify a 
 conviction and those that must be offered by the defense to 
 disprove or place in reasonable doubt the proof offered by the 
 prosecution. In other words, the prosecution and defense 
 should limit the proffer of testimony to that which is relevant 
 to these issue's, and these only, and should prepare the case 
 with only that in view. The essentials of the offense (see 
 Chap. XVII) should be so clearly defined in the preparation 
 of the case that both the trial judge advocate and counsel 
 for accused may be ready, by appropriate objections before 
 the court, to limit the introduction of evidence to relevant 
 matter only, bearing in mind that only the essentials of the 
 offense must be proved and that what may be properly con- 
 sidered surplusage may be disregarded. 
 
 Before trial an examination of all the sources of the evi- 
 dence to be submitted should be made by the trial judge 
 advocate and counsel for accused, and a determination as 
 to the order in which it will be introduced should be reached. 
 The case should be presented in sequence of events as nearly 
 as possible, just as a story would be told by one party who 
 had seen everything to which the different witnesses will 
 testify. When several offenses are charged, especially if un- 
 related, the evidence should be directed to the development 
 of their proof in the order charged, so that neither the court 
 nor the accused may be in doubt at any time as to the specific 
 offense to which the testimony being given refers. Counsel 
 for accused should adhere to the same principle in present- 
 ing evidence for the defense. 
 
 159 
 
T[ 197 CHAPTER XI. 
 
 NOTE 1. Wherever the phrase "counsel for the accused," or any 
 similar phrase, is used in this chapter, or elsewhere in this Manual, 
 it is to be understood, unless the context indicates otherwise, as 
 including both the defense counsel of the court and any individual 
 counsel for the accused. 
 
 NOTE 2. It is the duty of the defense counsel to begin the prep- 
 aration of the case for trial on behalf of the accused, immediately 
 upon charges being referred for trial to a court of which he is the 
 defense counsel, without waiting for the appointment or retaining of 
 any individual counsel; and, if individual counsel be afterwards 
 assigned or retained, to give him the benefit of such preparation. In 
 case individual counsel has been assigned or retained prior to the ref- 
 erence of the case for trial, the defense counsel will, if the accused 
 desires, cooperate in the preparation of the case for trial, in accord- 
 ance with the provisions of A. W. 17, as associate counsel for the 
 accused. 
 
 197. DUTIES OF COURT OPENING STATEMENTS. If the 
 court will augment the preparation invoked in the preceding 
 paragraph by constantly bearing in mind what the issues are 
 and holding the trial judge advocate and counsel strictly to 
 them, it will tend to the expedition of business, the securing 
 of justice, and the conservation of the interests of all con- 
 cerned. The court should have before it as a guide, always 
 by reference to this Manual in each case, the following essen- 
 tial considerations as to any evidence that may be tendered : 
 (1) That it is relevant to the issue; (2) that it is not within 
 the rule rejecting hearsay evidence; (3) that, if it is a con- 
 fession or admission, it is legally admissible ; (4) that where 
 documents are used the original should be obtained (except 
 when a copy is admissible) and that the genuineness should 
 be verified; (5) that any witnesses called are legally compe- 
 tent to give evidence; (6) that the examination of witnesses 
 is fairly and properly conducted. (Confer, Brit. M. M. M., 
 Ch. VI, par. 105.) 
 
 Further reference will always be had to the paragraphs 
 of the Manual that set out the gist of the offenses charged 
 (see Chap. XVII) , and these will be read to the court in each 
 case by the trial judge advocate immediately after the ac- 
 cused has pleaded to the charges and specifications. 
 
 It will be appropriate in all cases and in an important or 
 complicated case it will be required by the court for the 
 trial judge advocate, before proceeding with the introduc- 
 tion of evidence, to make a brief statement of " the nature 
 
 160 
 
COURTS -MARITAL EVIDENCE. ^f 198 
 
 of the issues to be tried and what he expects to prove" (1 
 Thompson on Trials, 246) to sustain them. Counsel for the 
 accused may also make an opening statement as to his de- 
 fense, either just following the statement of the trial judge 
 advocate or just after the trial judge advocate has rested his 
 case, as counsel deems better, but the latter course is cus- 
 tomary. It would be highly reprehensible for either trial 
 judge advocate or counsel to get before the court in such 
 opening statement, as a probable means of influencing its 
 judgment, matters as to which no evidence is intended to be 
 offered or as to which it is known that the evidence to be 
 offered is clearly inadmissible, just as it would be so repre- 
 hensible for either to suggest for the same purpose, by ques- 
 tions propounded to a witness, matters known not to exist 
 or that the rules of evidence clearly make inadmissible. 
 
 NOTE. A violation by the trial judge advocate of the rule stated in 
 the last sentence may require disapproval of the findings and sentence 
 of the court, particularly in a close case. 
 
 198. RULES OF EVIDENCE FOR COURTS-MARTIAL. Prior to 
 the acts of August 29, 1916, and June 4, 1920 (A. W., 38), 
 courts-martial followed in general the rules of evidence, in- 
 cluding the rules as to competency of witnesses to testify, 
 that are applied by Federal courts in criminal cases. These 
 consisted of the rules of the common law as they existed 
 in the several States at the adoption of the Federal Consti- 
 tution in 1789, as modified from time to time by subsequent 
 acts of Congress. But courts-martial were, however, not re- 
 quired by express statute to follow these rules, and had 
 always been allowed to pursue a more liberal course in re- 
 gard to the admission of testimony than do, habitually, the 
 civil tribunals. Their purpose was to do justice ; and if the 
 effect of a technical rule was found to be to exclude material 
 facts or otherwise obstruct a full investigation, it was deemed 
 that the rule may and should be departed from. Proper 
 occasions, however, for such departures were regarded as ex- 
 ceptional and unfrequent. (Winthrop, 473.) It was be- 
 lieved that " courts-martial had much better err on the side 
 of liberality toward a prisoner than, by endeavoring to 
 solve nice and technical refinements of the laws of evidence, 
 21358 20 11 
 
 161 
 
If 199 CHAPTER XI. 
 
 assume the risk of injuriously denying him a proper latitude 
 for defense." (G. C. M. O. 32, 1872; see 3 Grecnleaf, sees. 
 469, 476.) But now, by the provisions of the acts of August 
 29, 1916, and June 4, 1920 (A. W. 38) : 
 
 " The President may, by regulations, which he may modify from 
 time to time, prescribe the procedure, including modes of proof, in 
 cases before courts-martial, courts of inquiry, military commissions, 
 and other military tribunals, which regulations shall, in so far as he 
 shall deem practicable, apply the rules of evidence generally recog- 
 nized in the trial of criminal cases in the district courts of the 
 United States: Provided, That nothing contrary to or inconsistent 
 with these articles shall be so prescribed: Provided further, That all 
 rules made in pursuance of this article shall be laid before the Con- 
 gress annually." 
 
 The modes of proof, therefore, including the rules of 
 admissibility for testimony of witnesses and other evidence, 
 are now by express congressional enactment placed under 
 the authority of Executive regulation; and the rules laid 
 down in this Manual have the force of such regulation. 
 They therefore form the only binding rules, except such 
 rules of evidence as are expressly prescribed (1) in the 
 Articles of War; (2) in the Federal Constitution; and (3) 
 in such Federal statutes as expressly- mention courts-martial. 
 
 199. RULES, WHERE FOUND. The common-law rules of 
 evidence, with their legislative modifications, form the basis 
 of the present regulations. These rules have been the sub- 
 ject of much interpretation by the courts, which will be 
 found in the published decisions of such courts. While re- 
 sort to textbooks and decisions will sometimes be necessary in 
 the trial of an especially difficult case, it is the purpose of this 
 chapter to state the rules of evidence applicable to trials by 
 courts-martial in sufficient fullness to cover the field in prac- 
 tically all cases. Where the rule herein laid down is clear it 
 should be taken as law (subject to the discretionary relaxa- 
 tion noted in par. 198), unless modified by Federal statute or 
 some decision of the Federal courts thereunder made since 
 the date of the publication of this Manual. 
 
 Where, in the preparation of a case, the trial judge advo- 
 cate or counsel finds that the rules laid down in this chapter 
 are not sufficiently specific clearly to settle a specially impor- 
 tant question as to the competency of a witness to testify or 
 
 162 
 
COURTS-MARTIAL EVIDENCE. ^f 200 
 
 as to the admissibility of evidence intended to be introduced 
 or likely to be offered against him, he should secure in ad- 
 vance of the trial and have with him in court authorities to 
 sustain his contentions for such admission or exclusion. 
 
 But it should be kept in mind that the use of such au- 
 thorities is merely to inform the court of the reason of a 
 rule or the good sense and fairness of a proposed ruling, 
 and not to control the decision of the court with binding 
 effect. This caution rests on two grounds of principle : First, 
 because the State decisions and statutes and the writers of 
 treatises never have had any binding effect on courts-martial, 
 the Federal statutes and decisions being the only ones that 
 are entitled to such effect; and, secondly, because since the 
 Federal statutes -of August 29, 1916, and June 4, 1920 (A. 
 W. 38), the modes of proof in courts-martial are governed 
 by regulations -issued by presidential order, as explained in 
 paragraph 198, supra, 
 
 200. KULES OF EVIDENCE TO BE APPLIED IRRESPECTIVE OF 
 HANK. The rules of evidence should be applied by military 
 courts irrespective of the rank of the person to be affected. 
 Thus a witness for the prosecution, whatever be his rank or 
 office, may always be asked on cross-examination whether he 
 has not expressed animosity toward the accused, as well as 
 whether he has not on a previous occasion made a statement 
 contradictory to or materially different from that embraced 
 in his testimony. Such questions are admissible by the es- 
 tablished law of evidence and imply no disrespect to the 
 witness, nor can the witness properly decline to answer them 
 on the ground that it is disrespectful to him thus to attempt 
 to discredit him. (Digest, p. 529, XI, A, 3.) 
 
 201. PROTECTION OF WITNESSES. It is the duty of the court 
 to protect every witness from irrelevant, insulting, or im- 
 proper questions; from harsh or insulting treatment; and 
 from unnecessary inquiry into his private affairs. The court 
 must forbid any question which appears to be intended 
 merely to insult or annoy a witness, or which, though proper 
 in itself, appears- to be needlessly offensive in form. 
 
 202. EVIDENCE MUST BE MATERIAL AND RELEVANT. (1) 
 Evidence to be admissible must be not only competent and 
 
 163 
 
If 202 CHAPTER XI. 
 
 material, but relevant to the issues in the case. Evidence 
 is not material when the fact which it aims to prove is not 
 a part of the issues in the case. Evidence is not relevant 
 when, though the fact which it aims to prove is material, 
 yet the evidence itself is too remote or far-fetched to have 
 any probative value for that purpose. 
 
 (2) Where evidence is apparently irrelevant it may, how- 
 ever (but only rarely and under exceptional circumstances), be 
 admitted provisionally upon a statement of the trial judge 
 advocate or counsel that other facts later to be proved will 
 show its relevancy, but the court should afterwards exclude 
 it if its relevancy is not ultimately shown.. 
 
 NOTE. Resort should rarely be had to the practice of allowing 
 either side to introduce apparently irrelevant evidence, upon a promise 
 to connect it up later. It frequently leads to controversy as to whether 
 the promise has been made good, and often results in getting improper 
 matter into the record, which may sometimes require a disapproval of 
 the findings and sentence of the court. It is always safer, and will 
 usually be found to save time and shorten the record in the end, to 
 require the party offering the evidence to first prove the facts showing 
 its relevancy. He may, for that purpose, be permitted to temporarily 
 withdraw a witness or witnesses and to fecall one or more witnesses 
 who have been partially examined. 
 
 (3) Indirect evidence is known as circumstantial evidence, 
 and signifies merely any and all evidence which is not testi- 
 monial; i. e., the assertion of a witness or other person. 
 For example, on a charge of larceny of a wallet, the state- 
 ment of a witness that he saw the accused take the wallet 
 from the owner's overcoat is testimonial evidence ; the find- 
 ing of the wallet hidden in the blanket belonging to the 
 accused is circumstantial evidence. Obviously a fact consti- 
 tuting circumstantial evidence must itself usually be proved 
 in its turn by testimonial evidence ; for example, the finding 
 of the wallet as indicated above would be evidenced by a 
 sergeant's testimony that he searched the accused's blanket 
 and found the wallet. 
 
 (4) Testimonial evidence is thus classed by itself, because 
 the weight to be given to testimony is subject to a group of 
 considerations which affect all human assertions alike, as dis- 
 tinguished from circumstantial evidence which is of infinite 
 
 164 
 
COURTS-MARTIAL EVIDENCE. ^f 20 2 a 
 
 varieties having relatively few features in common with each 
 other. 
 
 202a. Court-Martial Should Reject Improper Evidence Al- 
 though Not Objected To. A court-martial should refuse to re- 
 ceive improper evidence, either testimonial or documentary, even 
 though not objected to by the accused. The reception of im- 
 proper evidence may be so injurious to the substantial rights 
 of the accused as to require disapproval of the findings and sen- 
 tence of the court, even though it was not objected to by the 
 defense. 
 
 (C. M. No. 134116, Woodland, Dec. 11, 1S19; C. M. No. 116667, 
 Partridge, July 11, 1918; C. M. No. 132922, Davis, Nov. 18, 1919; 
 C. M. No. 128323, Woodin, Apr. 16, 1919; C. M. No. 134057, Massey, 
 Sept. 20, 1919.) 
 
 SECTION II. 
 CIRCUMSTANTIAL EVIDENCE. 
 
 203. CIRCUMSTANTIAL EVIDENCE. Circumstantial evidence 
 is not resorted to as a secondary or inferior species; i. e., be- 
 cause there is an absence of direct or testimonial evidence. 
 It is introduced even when there is direct evidence. Cir- 
 cumstantial evidence may furnish a safe and satisfactory 
 ground for belief, while on the other hand direct or testi- 
 monial evidence may leave the court in doubt. The proper 
 effect of circumstantial as compared with direct evidence 
 has been stated as follows : 
 
 When circumstances connect themselves closely with each 
 other, when they form a large and strong body so as to 
 carry conviction to the minds of a jury, it may be proof of 
 equal or even more satisfactory sort than that which is direct. 
 In some lamentable instances it has been known that a 
 short story has been got by heart by two or three witnesses ; 
 they have been consistent with themselves, they have been 
 consistent with each other, swearing positively to a fact, 
 which fact has turned out afterwards not to be true. It is 
 almost impossible for a variety of witnesses, speaking to a 
 variety of circumstances, so to concoct a story as to impose 
 upon a jury by a fabrication of that sort, so that where a 
 chain of circumstances is cogent, strong, and powerful, where 
 
 165 
 
^204 CHAPTER XT. 
 
 the witnesses do not contradict each other or do not con- 
 tradict themselves, it may be evidence more satisf actory than 
 even direct evidence, and there are more instances than one 
 where that has been the case. (Wiginore, sec. 26.) In a 
 case depending upon circumstantial evidence the court, in 
 order to convict, must find the circumstances to be satisfac- 
 torily proved as facts, and must also find that those facts 
 clearly and unequivocally imply the guilt of the accused 
 and can not reasonably be reconciled with any hypothesis 
 of his innocence. (Davis, p. 265.) 
 
 204; ILLUSTRATION OF DIFFERENCE BETWEEN GOOD AND BAD 
 CIRCUMSTANTIAL EVIDENCE. The accused is charged with 
 stealing clothes from the locker of a comrade. The following 
 circumstances are not admissible as circumstantial evidence : 
 
 (1) The accused is very much disliked by other mem- 
 
 bers of his company. 
 
 (2) A number of thefts from comrades have taken 
 
 place in the company, and the general belief in 
 the company is that he was connected with 
 them. 
 
 (3) He was tried once before for larceny of clothes 
 
 from a comrade and was convicted. 
 
 (4) He is suspected of being a deserter from a foreign 
 
 army. 
 
 (5) He belongs to a race or enlisted in a locality that 
 
 does not entertain very strict notions of right 
 ' and wrong as to the manner of acquiring pos- 
 session of property. 
 
 But the following series of circumstances should be ad- 
 mitted in evidence : 
 
 (1) The clothes were taken while the company was at 
 
 drill, and there was no one known to have been 
 in the room where the locker was. 
 
 (2) The accused was not at drill, but was detailed as 
 
 kitchen police that day. 
 
 (3) He was absent from his duty as kitchen police a 
 
 short while during the time when the clothes 
 disappeared. 
 
 (4) One of the articles stolen was found in the locker 
 
 of the accused. 
 
 166 
 
COURTS-MARTIAL EVIDENCE. f 205 
 
 (5) The accused was known to be without money the 
 
 day before the larceny, and that evening left the 
 post with a bundle under his arm and was seen 
 to enter a certain house and the same night had 
 money in his possession. 
 
 (6) Upon the house being searched next day most of 
 
 the missing clothes were found there. 
 
 (7) The person found in the house identified the ac- 
 
 cused as the one from whom he had purchased 
 the missing clothes. 
 
 205. Accused's Bad Character. A fundamental rule is that 
 the prosecution may not evidence the doing of the act by invok- 
 ing the accused's bad moral character or former misdeeds as a 
 ground of probability for his guilt of the offense charged. This 
 forbids any resort to his bad character in any form, either by 
 general repute or by personal opinions of individuals who know 
 him. The rule is based on the well-known tendency of human 
 nature to find an accused guilty without positive belief in his 
 present guilt, but because of the prejudice caused by his former 
 bad record. This rule also forbids any reference in the evi- 
 dence to former specific offenses or other acts of misconduct, 
 whether he has or has not ever been tried and convicted of 
 their commission. All attempt to evidence guilt of the present 
 charge by resort to the accused's moral disposition, whether 
 shown by repute or by specific former misdeeds, must be rigor- 
 ously avoided. 
 
 206. Same Exceptions. There are, however, four contin- 
 gencies in which the prosecution may resort to the accused's bad 
 character or specific prior misdoings, partly by way of excep- 
 tion to the foregoing rule and partly as falling outside its scope : 
 
 1. If the accused offers his own good character to show 
 
 the probability of his innocence, the prosecution 
 may dispute the fact of such good character by offer- 
 ing in rebuttal the reputation of the accused in his 
 organization as to the bad quality in question. 
 
 2. If the accused takes the stand as a witness, his moral 
 
 character for credibility as a witness (par. 257) 
 may be evidenced in rebuttal. 
 
 3. If the accused is found guilty, then his service record 
 
 may be made known to the court, as provided in 
 
 167 
 
If 206 CHAPTER XI. 
 
 paragraphs 271, 306, and 307, subject to the provi- 
 sions of Article V of the Executive order concerning 
 maximum punishments (par. 349 infra). 
 4. If the intent or motive or plan or guilty knowledge 
 of the accused is material under the issues of the 
 case, all his prior conduct tending to show his mo- 
 tive or intent or other state of mind at the time 
 of the act charged becomes relevant; and thus this 
 conduct may include various acts which in them- 
 selves are immoral or criminal. In such case the 
 fact that such an act is criminal or immoral does 
 not prevent its admission, even though incidentally 
 the act might reflect upon the moral character of 
 the accused. The consideration of such conduct in 
 order to reach a conclusion as to the accused's in- 
 tent or motive is necessary; but the court should 
 reject from its mind any bearing of such conduct 
 on the accused's general trait of bad character. 
 This distinction is fundamental. It may be illustrated as 
 follows : 
 
 (a) On a charge of wrongfully disposing of Government 
 
 property, viz, one blanket, by selling it to a 
 civilian (the fact of the sale being proved), the 
 accused's conduct on recent former occasions in 
 offering for sale a pistol and a saddle to the same 
 or other persons may be offered to show his wrong- 
 ful intent at the time of the act charged. 
 
 (b) On a charge of assaulting a fellow soldier with 
 
 intent to wound, a former assault on another sol- 
 dier six months before and under entirely different 
 circumstances would not be admissible, having no 
 bearing on the intent in the case charged. 
 
 (c) On a charge of attempt to desert, the fact that the 
 
 accused had recently assaulted and beaten another 
 soldier and was under arrest awaiting trial would 
 be admissible to evidence a probable motive to 
 attempt to desert. 
 
 (d) On a charge of falsification of accounts of stores, 
 
 the fact that the accused had embezzled some of 
 the same stores, if offered to evidence a motive 
 
 168 
 
COUKTS-MAETIAL EVIDENCE. If 207 
 
 for concealing the embezzlement by falsifying ac- 
 counts, would be admissible; but a conviction of 
 falsification before enlistment in a totally distinct 
 transaction would be inadmissible as bearing 
 solely upon his general moral character and not 
 upon his present intent or motive. 
 
 SECTION III. 
 TESTIMONIAL EVIDENCE. 
 
 207. TESTIMONIAL EVIDENCE. Testimonial evidence is the 
 statement of some person offered as evidencing the fact 
 asserted by it. For example, a statement that a rifle was dis- 
 charged at a certain hour and place is testimonial evidence 
 that it was so discharged. 
 
 Such statements may be made either in court or out of 
 court. If made in court as a witness, then the witness must 
 be " competent." If made out of court, then even if the person 
 making it is competent, the statement is not admissible, be- 
 cause the hearsay rule forbids. (See par. 221 infra.) 
 
 The competency of the witness is therefore the important 
 thing to determine before admitting testimonal evidence. 
 
 208. COMPETENCY RULE IN GENERAL. The modern tend- 
 ency, as evidenced to a great extent by statutes of different 
 States, and to a limited extent by Federal statutes, is to 
 recognize practically no grounds for incompetency, but to 
 admit the material and relevant testimony of a witness 
 offered by either side and leave his credit to be estimated 
 according to all the circumstances. 
 
 209. Elements of COMPETENCY OF WITNESS. The compe- 
 tency of a witness depends upon several elements, which 
 may be divided thus: (1) His general moral and mental 
 capacity; (2) his special expertness in subjects on which ex- 
 pertness is required; (3) his knowledge of the specific facts 
 on which he testifies. 
 
 210. GENERAL CAPACITY OF WITNESS. The general capac- 
 ity, mental and moral, of an adult witness is always pre- 
 sumed; i. e., the party must always prove to the court the 
 specific ground of incapacity or else the witness should be 
 allowed to testify. 
 
 169 
 
f 210a CHAPTER xi. 
 
 210a. CHILDREN AS WITNESSES. The admissibility of chil- 
 dren as witnesses is not regulated by their age, but by their 
 apparent sense and understanding. The court may, in its dis- 
 cretion, receive the testimony of any child, regardless of age, 
 and give it such weight as it may appear to deserve; provided, 
 only that, in the opinion of the court, the child understands the 
 moral importance of telling the truth, for which purpose the 
 court may examine the child. 
 
 NOTE. This abolishes, for courts-martial, the technical common-law 
 rules as to the competency of children. The admission of the testi- 
 mony amounts to a statement of the court's opinion that the child 
 understands the moral importance of telling the truth, and makes tho 
 testimony prima facie competent. 
 
 211. MORAL INCAPACITY OF WITNESS. Moral incapacity 
 was recognized in the common-law rule that rendered in- 
 competent as a witness any person convicted of treason, 
 felony, or the crimen falsi. 
 
 But tliis incapacity has long been abolished in almost all 
 the States, except that several retain it with a restriction to 
 convictions for perjury. In courts-martial, conviction of 
 any offense does not disqualify a witness. But it may, of 
 course, be shown to dimmish his credit. (See "Credibility 
 of Witnesses, Sec, VI, infra.) 
 
 212. MENTAL INCAPACITY or WITNESS. Mental incapacity 
 is a disqualification, but only to a limited extent, as follows : 
 Insanity or intoxication may disqualify, but only to the ex- 
 tent to which they affect the subject of the testimony. For 
 example a religious hallucination as to angels saving a man 
 from bullets does not disqualify the person from testifying 
 us to the time of lighting a camp fire or the persons on duty 
 at a certain post. But such, hallucinations, like general inac- 
 curacy of memory ox comprehension, liability to occasional 
 lapses of memory, mental defect, and the like, may fee inquired 
 into, on cross-examination, as affecting the general accuracy and 
 credibility of the witness. 
 
 213. INTEREST OR BIAS. Interest or bias does not dis- 
 qualify; i. e., the fact that a person owes a party money or 
 has a property interest with or against a party does not 
 disqualify him from testifying for or against that party. 
 
 170 
 
COURTS-MARTIAL EVIDENCE. II 214 
 
 A person who is a relative or an avowed enemy of the accused 
 is not disqualified from testifying for or against the accused. 
 The weight of such testimony when admitted is a different 
 matter. (See "Credibility of Witnesses," Sec. VI, infra.) 
 
 Marital relationship was a disqualification at common 
 law. Except in certain cases, husband or wife could not 
 testify either for or against one another. This rule has been 
 abolished in most States. In courts-martial the rule is as 
 follows: 
 
 (1) Wife or husband of an accused may testify on 
 
 behalf of the accused without restriction. 
 
 (2) Wife or husband of an accused may not be called 
 
 to testify against the accused without the con- 
 sent of both accused and witness, unless on a 
 charge of an offense committed by the accused 
 against the witness. (See par. 228.) 
 
 (3) Wife or husband of any person may not testify 
 
 to confidential communications of the other, 
 unless the other give consent. 
 
 The last two rules are rules of privilege and are more 
 fully stated under " Privilege." (See pars. 227 et seq.) 
 
 214. WHEKE ACCTTSED Is WTTXESS. It was provided by act 
 of Congress of March 16, 1878 (20 Stat. 30), that in trials 
 by courts-martial and courts of inquiry as well as by United 
 States courts and Territorial courts, the accused " shall at 
 his own request^ but not otherwise, be a competent witness," 
 and that " his failure to make such request shall not create 
 any presumption against him." 
 
 (a) An accused person thus may, at his option, take the 
 stand as a witness, and in doing so he occupies no exceptional 
 status and becomes subject to cross-examination like any 
 other witness. The same rules as to the aclmissibility of evi- 
 dence, privilege of the witness, impeaching of his credit, etc., 
 will apply to him as to any other witness, and the only notice- 
 able difference between his examination and that of other 
 witnesses will be that he will in general, naturally and prop- 
 erly, be exposed to a more searching cross examination. 
 (Winthrop, 507.) So far as the latitude of the cross-ex- 
 amination is discretionary with the court, a greater lati- 
 
^f 215 CHAPTER XI. 
 
 tude may properly be allowed in his cross-examination than 
 in that of other witnesses. (Id., 545.) 
 
 (b) When the accused testifies in denial or explanation of 
 any offense, the scope of his direct examination (under para- 
 graph 251) is considered to be the whole subject of his guilt 
 or innocence of that offense. Any fact relevant to the issue 
 of his guilt or relevant to his credit as a witness, is properly 
 the subject of cross-examination. 
 
 (c) If he fails to take the stand at all, this failure must not 
 be commented on, for such comment would violate his privilege 
 to remain silent (par. 251). But if he testifies and if he fails 
 in such testimony to deny or explain specific facts of an in- 
 criminating nature that the evidence of the prosecution tends 
 to establish against him, such failure may not only be com- 
 mented upon by counsel, but may be considered by the court, 
 with all the other circumstances, in reaching their conclusion 
 as to his guilt or innocence. (Caminetti v. U. S., 242 U. S., 
 470, 493. ) Where, however, an accused is on trial for a num- 
 ber of offenses, and, taking the stand in his own defense, 
 testifies to one or more of them only, he can not be cross- 
 examined as to the others, and no comment can be made or 
 inference drawn from his failure to testify as to the others. 
 
 215. PROCEDURE WHERE ACCUSED FAILS TO TESTIFY OR 
 MAKE A STATEMENT. In each case tried by a court-martial 
 in which the accused does not testify or make any statement 
 in his own behalf, it shall appear on record that the presi- 
 dent or law member of the court (see pars. 89 and 89a), or the 
 summary court, explained to the accused that he may testify 
 in his own behalf if he so desire, or may make an unsworn 
 statement to the court in denial, in explanation, or in exten- 
 uation of the offense with which he stands charged. In every 
 case tried by general court-martial, or by special court-martial 
 where the evidence is recorded, the explanation by the presi- 
 dent or law member and the reply of the accused thereto shall 
 appear upon the record of trial. (See form, Appendix 9.) In 
 other cases tried by special court-martial, and in cases tried by 
 summary court-martial, the fact of such explanation being given 
 in the form prescribed in Appendix 9 to this Manual will be 
 noted in the record or report of trial. 
 
 172 
 
COURTS-MAKT1AL EVIDENCE. ^f 216 
 
 216. EFFECT OF TURNING STATE'S EVIDENCE. The fact that 
 an accomplice turns state's evidence does not make him im- 
 mune from trial, unless immunity has been promised him 
 by the authority competent to order his trial. But, if an 
 accomplice goes on the stand and makes a full and frank 
 statement of the circumstances of the offense, it is customary 
 to pardon his offense, or impose upon him a milder punish- 
 ment than upon his accomplices. 
 
 217. COMPETENCY OF ACCUSED WHEN TESTIFYING AGAINST 
 AN ACCOMPLICE. An accused who is one of two or more per- 
 sons concerned in an offense is always competent to testify, 
 whether he be charged jointly or separately, and whether he be 
 tried jointly or separately, and whether he be called for the 
 prosecution or for the defense. He can not, however, be called 
 except upon his own request, since he is privileged not to in- 
 criminate himself (par. 233), and therefore, unless he first 
 waives the privilege and elects to testify, can not be called or 
 used as a witness by either side. (See also par. 224, infra.) 
 
 NOTE 1. This abolishes, for courts-martial, the ancient common- 
 law rule that any person charged with complicity was interested in 
 the event of the trial, and was therefore disqualified, whether he 
 sought to testify for the prosecution or for the defense, under which 
 resort was formerly necessary to various expedients when the prosecu- 
 tion desired to use the testimony of an accused; e. g., entering a 
 nolle prosequi, directing an acquittal, or placing him on trial sepa- 
 rately. 
 
 NOTE 2. This does not prevent entering a nolle prosequi or a find- 
 ing of " not guilty " as to any particular accused in those exceptional 
 cases where it becomes necessary to call one of the oifenders, against 
 his will, and thus secure his testimony for the purpose of convicting 
 others. While this course will not be encouraged, and will not be 
 adopted without the authority of the convening authority, it may 
 sometimes be the only means of obtaining the necessary evidence to 
 convict the ringleaders in a conspiracy or other joint crime. 
 
 218. EXPERT CAPACITY. On most matters the ordinary ex- 
 perience of any adult qualifies him to observe and testify. 
 Hence, all persons are ordinarily qualified to testify on ordi- 
 nary matters. But, when the subject is one upon which 
 special experience is required, it will not be presumed that a 
 witness possesses such special experience, for ordinarily he 
 does not. Hence a witness called upon such a subject must 
 
 173 
 
^ 219 CHAPTER XI. 
 
 be shown to possess such special experience; he is therefore 
 called an "expert" on that subject. A person may be an 
 e-xpirt on one subject but not on another. Hence, whenever 
 such a topic calls for testimony, the witness's special expe- 
 rience in it must first be shown. Whether a piece of leather 
 has been recently tanned; whether a stain is human blood 
 or animal blood, are instances of topics which might well 
 require experts, if important to the issue. 
 
 In applying this rule pedantry would be out of place. 
 Experts on all subjects are seldom within reach of a court- 
 martial, and liberality of application is a necessity. Good 
 sense and ordinary caution will determine whether an expert 
 is needful for accurate discovery of the truth. For example, 
 an expert in alcohol would hardly be needed to testify to 
 whether the contents of a certain bottle were sufficiently 
 alcoholic to be intoxicating, but in a homicide case, where 
 the cause of death was disputed, obviously a medical man's 
 testimony should be secured. 
 
 219. Insanity or Mental Defect or Derangement of Accused. 
 (a) The questions whether (1) the accused was of such mental 
 condition as to be not legally responsible for the act or omission 
 charged, if committed, or (2) is mentally so defective or de- 
 ranged as to render inadvisable his punishment for crime, or as 
 to render him (3) mentally incapable of conducting his defense 
 intelligently, may be raised orally on the trial at any time before 
 sentence, without any special plea or other formality, either by 
 any member of the court, by the trial judge advocate, the de- 
 fense counsel or other counsel for the accused, or by the accused 
 himself. The court may then, in its discretion, suspend other 
 proceedings for the examination, hearing and consideration of 
 the matter of the mental condition of the accused, and proceed 
 to determine, in accordance with the thirty-first article of war 
 (see pars. 89 and 89a, supra), whether the existence of mental 
 disease or mental derangement on the part of the accused has 
 become an issue in the trial. 
 
 (b) Whenever it is so determined that such question has be- 
 come an issue in the trial, then upon such issue the burden of 
 proof is upon the prosecution to establish, to the satisfaction of 
 the court, the mental condition of the accused, both at the time 
 
 174 
 
COURTS-MARTIAL EVIDENCE. ^f 219 
 
 of the alleged offense and at the time of the trial, and the presi- 
 dent of a special court-martial or of a general court-martial in 
 the absence of the law member, or the law member of a general 
 court-martial if present, as the case may be, will so advise the 
 trial judge advocate; and, if there is in the case a report of a 
 medical board under paragraph 76c, supra, such report will bs 
 read in evidence on behalf of the court, and (unless the court, 
 and also both the trial judge advocate and cou]osel for the ac- 
 cused, as well as the accused himself, think it unnecessary, and 
 accordingly waive it) at least one of the members of such medi- 
 cal board will be called as a witness for the court, to be thor- 
 oughly examined, as if on cross-examination, by counsel for the 
 accused, and also by the trial judge advocate and by any mem- 
 bers of the court, as to any feature cf the report ; and on request 
 of the accused the remaining members of the board shall, if 
 available, likewise be called as witnesses for the court, for such 
 cross-examination. 
 
 (c) But if there is in the case no report of a medical board 
 under the previsions of paragraph 76c, supra, the court may, in 
 its discretion, and will in every case where it appears to the 
 court that there is reason to believe that the accused may be 
 (or may have been at the time of the alleged offense) mentally 
 defective or deranged, either temporarily or permanently, stop 
 the proceedings and continue the case, and immediately report 
 the facts to the convening authority with a request that a 
 medical board be convened. In considering the question of so 
 requesting a medical board, a court-martial may receive in evi- 
 dence the report cf the medical officer made to the investigating 
 officer under the provisions of paragraph 76a, supra, in case 
 such report, if any, be offered in evidence by the defense ; but not 
 otherwise. 
 
 (d) The convening authority, upon receiving such a request 
 from a court-martial, will convene a medical board in accord- 
 ance with the provisions of paragraph 76c, supra, which will 
 proceed and report in the same manner as though it had been 
 convened under the provisions of that paragraph before the 
 reference of the case for trial, and its report will be received, 
 referred to the staff judge advocate, and disposed of in the 
 same manner as therein directed, and the convening authority 
 
 175 
 
1) 219 CHAPTER XI. 
 
 may thereupon dispose of the case in any of the different ways 
 therein stated; except that, if he determines that the trial 
 should proceed, he will refer the report of the medical board to 
 the court with directions to proceed. If the convening authority 
 disposes of the case in any way without returning it to the 
 court, such action will be deemed a rescission of the order 
 referring the case for trial and a withdrawal of the charges 
 from the court-martial. 
 
 If the report is so referred to the court-martial by the con- 
 vening authority, the court will thereupon proceed in the same 
 manner hereinbefore directed in subparagTaph (b) of this para- 
 graph, as though the medical board had been convened under 
 paragraph 76c, supra, in advance of reference of the case for 
 trial. 
 
 (e) Whenever any question of mental defect or derangement 
 of the accused is raised or suggested in any manner, as con- 
 templated in any of the foregoing subparagraphs of this para- 
 graph, a court-martial may, in its discretion, either while con- 
 sidering the statutory question (A. W. 31) whether the existence 
 of mental disease or mental derangement on the part of the ac- 
 cused has become an issue in the trial, or upon a question of 
 continuing the case and requesting the convening authority to 
 appoint a medical board, or after receiving in evidence the re- 
 port of a medical board whether convened in advance of the 
 trial under the provisions of paragraph 76c, supra, or after the 
 trial has begun under the provisions of subparagraphs (c) and 
 (d) of this paragraph, call witnesses as to the mental condition 
 of the accused, either for the court or on motion of either of the 
 parties (including the medical officer who made the report, if 
 any, on the accused to the investigating officer under the pro- 
 visions of paragraph 76a, supra). 
 
 (f) If, at any time before a special court-martial or a general 
 court-martial is closed to consider its findings, it appears to the 
 president of a special court-martial or of a general court-martial 
 in the absence of the law member, or to the law member of a 
 general court-martial, as the case may be, that the accused is 
 not mentally capable of conducting his defense intelligently 
 (that is to say, is not mentally capable of communicating intelli- 
 gently with his counsel, of understanding the nature of the 
 
 170 
 
COUKTS-MARTIALr EVIDENCE. H 219 
 
 proceedings, and of doing the things necessary for an adequate 
 presentation of his defense), he will so rule, subject to the right 
 of any member to object to such ruling under the provisions of 
 A. W. 31 (see pars. 89 and 89a, supra) ; and if such ruling is so 
 made and not objected to (or is sustained by the court upon a 
 vote in accordance with the provisions of A. W. 31, in case of 
 objection), the trial will thereupon be discontinued and a record 
 of the proceedings will be prepared and forwarded to the con- 
 vening authority, together with the charges and all the papers 
 in the case, with a report by the court at the end of such record 
 to the effect that " the accused is not in proper mental condition 
 at this time to be brought to trial " ; whereupon the convening 
 authority will dispose of the case in any of the ways contem- 
 plated in paragraph 76c, supra, except reference of the case for 
 trial ; provided, however, that if the convening authority directs 
 that further action on the charges be suspended for the time 
 being pending such further action as he may afterwards deter- 
 mine, he may at any time thereafter, whenever he is of opinion 
 that the accused has become mentally capable of conducting his 
 defense intelligently, again refer the case for trial, either, to the 
 same or to another court-martial. 
 
 (g) In any case in which it has been determined as provided 
 in subparagraph (a) that the question of the existence of 
 mental disease or mental derangement on the part of the ac- 
 cused has become an issue in the trial, or in which a report of 
 a medical board has been received in evidence, as indicated in 
 subparagraphs (b) or (d), or a report has been made to the 
 appointing authority, as indicated in subparagraph (f), or the 
 question of the mental condition of the accused is raised by any 
 member of the court while in closed session to deliberate on the 
 findings, the court in balloting upon its findings in the case will 
 separate such question from all other questions in the case, and 
 will consider it by itself. 
 
 Thereupon the court will proceed to ballot, in the manner pre- 
 scribed in paragraph 294, infra, upon the questions: 
 
 (1) "Is the accused in proper mental condition at this 
 time to undergo trial ? " If upon such ballot the 
 court determines such question in the negative by 
 
 a majority vote (or by a tie vote, since a tie 
 
 i 
 
 21358" 20 12 
 
 177 
 
^[ 219 CHAPTER XI. 
 
 vote is a decision in the negative), then the court 
 will return a finding in this form : " The accused 
 is not in proper mental condition at this time to 
 undergo trial," and will forward the record of 
 trial with such finding to the convening au- 
 thority in the same manner and with the same 
 effect for all purposes as hereinbefore prescribed 
 in subparagraph (f) of this paragraph. Other- 
 wise, the court will then proceed to ballot in order 
 on the following further question: 
 (2) " Was the accused at the time of the commission of 
 the alleged offense so far free from mental defect, 
 mental disease, or mental derangement as to be 
 able, concerning the particular acts charged, both 
 (1) to distinguish right from wrong and (2) to 
 adhere to the right?" 
 
 This question will be balloted upon as to each 
 specification, and if answered negatively or by a 
 tie vote the court will acquit the accused as to 
 such specification. 
 
 If upon such ballots both of such questions are answered in the 
 negative, the court will then proceed to consider and ballot upon 
 the specifications and charges in the manner prescribed in para- 
 graph 294, infra, in the same manner as though no such question 
 of mental defect or derangement had been raised or suggested. 
 
 In determining the foregoing questions, the court will take 
 into consideration not only the medical evidence, but all the evi- 
 dence in the case. 
 
 (h) In any case of conviction of an accused by any court- 
 martial, whether or not any question of mental defect or 
 mental disease or derangement became an issue or was raised 
 or suggested at the trial (or if the question was raised or 
 suggested at the trial, but disregarded by the court), the 
 reviewing authority, or the confirming authority if there be 
 one, may of his own motion at any time before taking final 
 action on the record (and in cases forwarded for consideration 
 by the Board of Eeview and the Judge Advocate General 
 under A. W. 50J, either before or after such consideration, 
 or pending it), in his discretion, cause a medical board to be 
 
 178 
 
COURTS-MAKTIAL EVIDENCE. *J" 220 
 
 convened to examine the accused and report in the same man- 
 ner contemplated in paragraph 76c, supra, for the purpose of 
 advising and assisting him in his decision as to the proper 
 action to be taken upon the record. If, in view of such report 
 when made, he shall disapprove the, sentence in whole or in 
 part, or any finding either in whole or in part, he will state 
 in his action that such disapproval was on that ground; and 
 in case he disapproves the sentence on such ground he may prop- 
 erly take any such action concerning the accused as is con- 
 templated in paragraph 76c, supra. 
 
 NOTE. TTo findings or sentence of a court-martial need ever "be 
 disapproved solely because of failure to comply with any of the pro- 
 visions of this Paragraph, since the reviewing or confirming authority 
 may always remedy such defect by availing himself of the advice of 
 a medical board under subparagraph (h), supra. 
 
 220. TESTIMONIAL KNOW:LEDGE. A prime qualification in 
 a witness is that he should speak only of what he has ob- 
 served with his senses or had an opportunity to observe; 
 e. g., a witness on sentry post at night might testify that 
 he heard three shots and saw two persons running in the 
 distance, but should stop with telling what he heard and 
 saw. To proceed further and state that the shots killed a 
 mule, and that the accused was one of the persons running 
 (unless he saw the mule fall or recognized the accused at the 
 time) may involve beliefs of his that are based on rumors 
 and gossip picked up afterwards, beliefs for which he has no 
 status as a witness. An important feature of correct trial 
 methods is to summon every person who saw or heard any- 
 thing relevant, but to require every such person to limit his 
 testimony to what he himself saw or heard. In this way the 
 court arrives (if the testimony be credited) at the basic 
 circumstances on which the proof must be built up. 
 
 This rule also has, of course, its liberal side, based on 
 practical experience. For example, if the issue be as to a 
 stolen case of soap, and the quartermaster has an invoice 
 showing 400 cases received, and he is asked how many are 
 remaining in stock, it is not necessary that he should per- 
 sonally count every case; it might suffice if he ticked off 
 39 large bales of 10 cases, each intact, and then found a bale 
 of 9 with 1 missing. 
 
 179 
 
H 221 CHAPTER XI. 
 
 221. Hearsay Rule. This fundamental principle of requiring 
 personal knowledge (or opportunity to observe) leads up to the 
 hearsay rule, applicable to statements made by persons not in 
 court. The hearsay rule signifies that when a witness testifies 
 not to what he himself saw or heard, but to what he heard some 
 one else say, his testimony on that point shall be rejected, and 
 the person who said it shall be produced in the court to testify, 
 the object being to get at the first-hand source of knowledge. 
 Experience shows again and again that when that other person 
 is produced either what he actually said was something very dif- 
 ferent, or else when cross-examined he turns out to have only a 
 scanty trustworthiness. For example, if the sentry in the above 
 instance testifies that he did not identify the person running, but 
 afterwards in barracks Sergt. S said that it was X, the court 
 would exclude what Sergt. S said, would summon S to testify 
 in person, and then it might appear that all Sergt. S knows 
 about it is that X came into barracks half an hour later looking 
 as if he were out of breath, and this might be connected up 
 with an errand on which X had been sent, by testimony of 
 his captain. The hearsay rule, therefore, is a corollary of the 
 principle that a witness must testify from what he has himself 
 seen and heard, and not from what another person has told 
 him or written to him. 
 
 The following are familiar instances of hearsay in court- 
 martial cases : 
 
 (1) A soldier is being tried for desertion. Pvt. A is able 
 to testify that Pvt. B told Pvt. A that the accused told Pvt. 
 B that he (the accused) intended to desert at the first oppor- 
 tunity. Such testimony from Pvt. A would be hearsay and 
 would be inadmissible. Pvt. B himself should be called. 
 
 (2) A soldier is being tried for larceny of clothes from a 
 locker. Pvt. A is able to testify that Pvt. B told Pvt, A that 
 he (Pvt. B), about the time the clothes were stolen, saw the 
 accused leave the quarters with a bundle resembling clothes. 
 Such testimony from Pvt. A would be hearsay and would be 
 inadmissible. Pvt. B himself should be called. 
 
 (3) A soldier is being tried for selling clothing. Police- 
 man A is able to testify that, while on duty as policeman, he 
 saw the accused with a bundle under his arm go into a shop, 
 
 180 
 
COURTS-MARTIAL EVIDENCE. ^f 2 2 la 
 
 that Le (the policeman) entered the shop and the accused 
 ran away and the policeman was unable to catch him. The 
 policeman the next day asked the proprietor of the shop what 
 the accused was doing there, and the proprietor replied that 
 the accused sold him some clothes issued by the Government 
 and that he paid the accused $2.50 for them. The testimony 
 of the policeman as to the reply of the proprietor would be 
 hearsay and would be inadmissible. The fact that the police- 
 man was acting in the line of his duty at the time the pro- 
 prietor made the statement would not render the evidence 
 admissible. 
 
 In the foregoing instances the fact that the accused said he 
 intended to desert, that the accused left the quarters with a 
 bundle, and that the accused sold the proprietor the clothes, 
 constitute most important evidence and can be proved in the 
 first two instances by Pvt. B and in the third instance by the 
 proprietor, but they can not be proved by hearsay evidence. 
 
 If evidence is hearsay it does not become admissible be- 
 cause it was made to an officer in the course of an official in- 
 vestigation. For instance, in illustration (1), if Pvt. B had 
 made his statement to Capt. C in the course of an official in- 
 vestigation by Capt. C, the statement would still be hearsay 
 and inadmissible. 
 
 Official statements and opinions as to either guilt or inno- 
 cence expressed by an officer, as, for instance, a company, 
 regimental, or department commander, or by a staff officer, in 
 an indorsement, are not admissible in evidence by reason of 
 the official character of the indorsement or the rank or posi- 
 tion of the officer making it, as it would be hearsay. Nor 
 is such a statement- or opinion evidence because it is among 
 papers referred to the trial judge advocate with the charges. 
 It would be irregular to permit such statements or opinions 
 to come to the attention of the court. If they do become 
 known to the court they should, of course, not be considered 
 in arriving at a finding or sentence. 
 
 221a. Exceptions to the Hearsay Rule. The hearsay rule is 
 subject to some well-established exceptions; most of them are 
 based on the general principle that there is an unavoidable 
 necessity for using the hearsay, because the person is deceased 
 
 181 
 
If 2 2 la CHAPTER xi. 
 
 or for some other reason can not be secured as a witness. These 
 exceptions are now settled, however, into fixed rules, irrespec- 
 tive of the above principle. 
 
 The principal exceptions likely to be presented for applica- 
 tion in court-martial trials are the following (cross references 
 are given to those which are later more fully stated in this 
 Manual). 
 
 (1) Dying Declarations (par. 222). 
 
 (2) Statements of Facts Against Interest. A statement of a 
 fact against the pecuniary or proprietary interest of the declar- 
 ant is admissible; e. g., where he states he has received pay- 
 ment for a debt, or that he is not the owner but only bailee of 
 a chattel. But this exception applies only where the declarant 
 is deceased, or out of the jurisdiction, or otherwise unavailable 
 as a witness on the stand. 
 
 (3) Statements about Family History. A statement by a 
 family member, or the general family repute, about a fact of 
 family history, such as birth, parentage, relationship, marriage, 
 age, etc., or the date or place thereof, is admissible. But if the 
 statement is by an individual family member (and not general 
 family repute), the declarant must be shown to be deceased, out 
 of the jurisdiction, or otherwise unavailable as a witness on the 
 stand. 
 
 (4) Regular entries in a book of business transactions (par. 
 244). 
 
 (5) Official Statements in Writing. An official statement in 
 writing (whether in a regular series of records, or a report, or a 
 certificate) is admissible when the officer had the duty or au- 
 thority to do or to know the matter so stated (par. 238a) . 
 
 (6) Scientific Treatises. A treatise or essay on a subject of 
 science or art, composed by a person expert therein, is admissible. 
 But there should be usually preliminary testimony by a qualified 
 witness that the author is approved in his profession as an ex- 
 pert or that the treatise is a standard one. 
 
 (7) Commercial Lists, Registers, etc. A list or register or 
 report containing data of general interest to some commercial, 
 industrial, or professional occupation, and published for use 
 therein, is admissible. 
 
 182 
 
COURTS-MARTIAL EVIDENCE. 222 ^ 
 
 (8) Statements of Mental or Physical Condition. A person's 
 statements of his present mental condition or physical sensation 
 are admissible, without calling him to the stand or accounting 
 for his absence; but the statement must relate to his present 
 condition, and not to past external events ; e. g., a person's state- 
 ment that he has pains in his back, or that he intends to take 
 a certain train next day, or that he is angry with a certain 
 person, or that he refuses to go because he is afraid of some- 
 thing, is admissible. When interviewed by a physician, his 
 statement as to the cause of his suffering is admissible. State- 
 ments of an accused, when doing an act, as to his intent or 
 motive are admissible under this rule, even when they are 
 oifered in his own favor ; when offered against him, they are also 
 receivable as a party's admissions under par. 226. 
 
 (9) Statements, Exclamations, or Ees Gestae (par. 223). 
 
 (10) Statements of Deceased Persons in General. In courts- 
 martial the liberal principle, now adopted in one or two States, 
 may well be followed in extreme cases, viz, wherever the person, 
 whose statement is desired to be offered (whether written or 
 oral), is deceased at the time of the trial, and was a person having 
 personal knowledge of the facts, his statement may be admitted, 
 in the discretion of the court. 
 
 222. DYING DECLARATIONS. On trials for murder and 
 manslaughter, the law recognizes an exception to the rule 
 rejecting hearsay by allowing the dying declarations of the 
 victim of the crime, in regard to the circumstances which 
 produced his condition, and especially as to the person by 
 whom the violence was committed, to be detailed in evidence 
 by one who heard them. The reason for admitting such 
 declarations where the victim believes death is impending is 
 that his belief is equal to the sanctity of an oath in causing 
 him to tell the truth. It is no objection to their admissi- 
 bility that they were brought out in answer to leading ques- 
 tions or upon urgent solicitations addressed to him by any 
 person or persons ; and if, instead of speaking, he answered 
 the questions by intelligible signs these signs may equally be 
 testified to. Dying declarations are admissible as well in 
 favor of the accused as against him. It is to be remarked 
 
 183 
 
H" 223 CHAPTER XI. 
 
 that evidence of dying declarations made as such usually are 
 under circumstances of mental and physical collapse or ex- 
 treme weakness and without being subjected to the ordinary 
 legal tests are generally to be received with great caution. 
 (Winthrop, p. 493.) 
 
 223. RES GEST^:. Another exception to the hearsay rule 
 consists of the inculpatory or exculpatory declarations or 
 statements that constitute part of the res gestse. By the res 
 gestae is meant the circumstances and occurrences substan- 
 tially contemporaneous with the facts at issue that explain 
 and elucidate the character and quality of such facts. Such 
 are threats or declarations of the accused in connection with 
 his commission of the crime that indicate his intent or 
 knowledge; declarations or exclamations of a party injured 
 that go to indicate the nature of the violence and the parties 
 responsible; language of accomplices; cries of bystanders; 
 facts, circumstances, and declarations showing premedita- 
 tion and preparation for the crime. All such may be estab- 
 lished by the testimony of persons who heard the utterances, 
 etc. All such declarations and statements must be made so 
 near in time to the principal transaction as to preclude the 
 idea of deliberate design or afterthought in making them, 
 but it is not essential that they should have been made in the 
 presence or hearing of the accused. Where the crime com- 
 mitted is the culmination of a series of acts, such as in riots, 
 etc., the res gestae rule applies to all acts and declarations of 
 the rioters and of bystanders that would tend to indicate 
 purpose, motive, etc. 
 
 The res gestse is considered as an act connected with or 
 an incident of a main transaction, and not as testimony ; and 
 as soon as it assumes the character of a narration rather than 
 a spontaneous exclamation, there is probable ground for be- 
 lief that it was inspired by a desire to influence the case, and 
 it is then inadmissible, as falling under the hearsay rule. 
 The application of the rule of res gestae is not limited 
 strictly to circumstances and occurrences contemporaneous 
 with the principal facts at issue nor with the transactions 
 leading up to the principal facts. The following examples 
 illustrate what constitute the res gestse : 
 
 184 
 
COURTS-MARTIAL EVIDENCE. ^f 223a 
 
 Where a soldier is charged with murder, manslaughter, 
 or assault, and the party against whom the violence is offered 
 is another soldier, and the wife of the former, while walking 
 with the latter, exclaims, "Run! here comes my jealous 
 husband, and he will kill you!", her exclamations would 
 be admitted as part of the res gestae. If the soldier had then 
 fled to his house pursued by her husband and she had fol- 
 lowed to deter him from injuring the other party and later 
 had run from the house shouting, " My husband is killing 
 Jones !", or " has just killed Jones!", her exclamations would 
 be admissible as constituting part of the res gestse. If a 
 party in the next room had heard a shot and then a voice 
 that he recognized as Pvt. Jones's say, " You shot me for 
 revenge and nothing else,"^ the declaration would be con- 
 sidered as a part of the res gestse. 
 
 223a. Identification of the Accused. This identification of 
 the accused involves two distinct elements, viz: First, that the 
 person now in court as accused is the same person described in 
 the charges by name, rank, title, and organization; secondly, 
 that the person now in court as accused (irrespective of his name, 
 rank, etc,) is the very person who did the act charged and to 
 which act the witness's testimony will refer. The first of these 
 elements is usually proved by witnesses who know the accused and 
 the facts as to his rank and organization, and when necessary, by 
 official records or duly authenticated copies. The second element 
 involves the question whether the person now in court (his name, 
 rank, and organization being assumed to be otherwise duly evi- 
 denced) was the actual person who, e. g., took part in the affray 
 or the rape, or made the false pretenses, or did whatever is the 
 offense charged. Whenever this fact is disputed, care must be 
 taken to offer all available evidence that may serve to remove 
 doubt as to identity; for no injustice is more pronounced than 
 that of convicting an innocent person by reason of mistaken 
 identity. 
 
 224. EVIDENCE OF CONSPIRATORS AND ACCOMPLICES. In 
 cases where several persons join with a common design in 
 committing an offense all acts and statements of each of them 
 made in furtherance of the offense are admissible against 
 each of the others. Only where the statements of such con- 
 
 185 
 
^ 225 CHAPTER XT. 
 
 spirator fall within the rule laid down for admission of 
 evidence as a part of the res gestsG could such statements 
 be admissible for the defense. The acts and statements of a 
 conspirator, however, made after the common design is ac- 
 complished or abandoned, are not admissible against the others, 
 except acts and statements in furtherance of an escape. It 
 is immaterial whether such acts or statements were made in 
 the presence or hearing of the other parties. They are bind- 
 ing upon all parties if they are in furtherance of the common 
 design. Foundation must first be laid by either direct or 
 circumstantial evidence sufficient to establish prima facie the 
 fact of conspiracy between the parties. But as it sometimes 
 may interfere with the proper development of the case to re- 
 quire the trial to begin with proof of the conspiracy, in such 
 case the prosecution may, at the trial, prove the declarations and 
 acts of one made and done in the absence of the others, before 
 proving the conspiracy between the defendants, though such 
 proof will be treated as nugatory unless the conspiracy be after- 
 wards independently established. (See, however, note to sub- 
 paragraph (2) of paragraph 202, supra.) While in Federal 
 courts and courts-martial corroboration of the testimony of 
 a coconspirator, or accomplice, need not be required, yet from 
 the character of the associations formed the uncorroborated 
 testimony of a coconspirator, or accomplice, should be re- 
 ceived with great caution. 
 
 225. CONFESSIONS. Another exception to the rule exclud- 
 ing hearsay evidence is the rule that admits testimony as to 
 confessions of guilt made by the accused. The most common 
 form of confession is that contained in the plea of guilty 
 made by the accused in open court in answer to a charge. 
 This is not the kind of confession referred to as constituting 
 an exception to the hearsay rule. The confessions referred to 
 are those made out of court. The following rules limit the use 
 of such confessions: 
 
 (a) A confession must be offered in its entirety, so that the 
 accused receives the benefit of having all of his statements con- 
 strued together to reach their full and actual meaning. A con- 
 fession can not be used as evidence by taking only one or more 
 parts specially unfavorable to the accused. But this rule only 
 
 186 
 
COURTS-MARTIAL EVIDENCE. ^f 225 
 
 applies to all the statements made at a single interview or in a 
 single document; statements made by the accused at a separate 
 time or in another document need not be used. 
 
 (b) It must be shown, before admitting it, that the con- 
 fession was entirely voluntary on the part of the accused. 
 If the confession is voluntary on its face, the burden is on the 
 defendant to show that it was incompetent (Wharton Crim. 
 Ev., 1419; Underbill Crim. Ev. 127.) 
 
 A confession is, in a legal sense, " voluntary " when it is not 
 induced or materially influenced by hope of release or other 
 benefit or fear of punishment or in j ury induced or influenced 
 by words or acts, such as promises, assurances, threats, harsh 
 treatment, or the like, on the part of an official or other person 
 competent to effectuate what is promised, threatened, etc., or 
 at least believed to be thus competent by the party confessing. 
 And the reason of the rule is that where the confession is not 
 thus voluntary there is always ground to doubt whether it 
 be true. (Winthrop, p. 496.) In military cases, in view of 
 the authority and influence of superior rank, confessions 
 made by inferiors, especially when ignorant or inexperienced 
 and held in confinement or close arrest, should be regarded 
 as incompetent unless very clearly shown not to have been 
 unduly influenced. Statements, by way of confession, made 
 by an inferior under charges to a commanding officer, judge 
 advocate, trial judge advocate, or other superior whom the 
 accused could reasonably believe capable of making good his 
 words, upon even a slight assurance of relief or benefit by 
 such superior should not in general be admitted. Thus in a 
 case where a confession was made to his captain by a soldier 
 upon being told by the former that " matters would be easier 
 for him," or " as easy as possible," if he confessed, such con- 
 fession was held not to have been voluntary and therefore im- 
 properly admitted. And it has been similarly ruled in cases 
 of confessions made by soldiers upon assurances being held 
 out or intimidation resorted to by noncommissioned officers. 
 (Winthrop, p. 498.) Confessions made by private soldiers 
 to officers or noncommissioned officers, though not shown 
 to have been made under the influence of promises or threats, 
 etc., should, in view of the military relations of the parties, 
 
 187 
 
If 225 CHAPTER XI. 
 
 be received with caution. Of course, the above principles 
 apply to a written confession as well as to a verbal one. 
 In some cases before courts-martial it appears that the ac- 
 cused has signed a paper confessing his guilt, stating in the 
 paper that he confesses freely without hope of reward or fear 
 of punishment, etc. Such statements are not conclusive that 
 the confession was voluntary. Evidence may be introduced. 
 If the evidence shows the statement was not in fact voluntary, 
 it should not be considered by the court. 
 
 Where the confession was made to a civilian in authority, 
 such as a police officer making an arrest, the fact that the official 
 did not warn the person that he need not say anything to in- 
 criminate himself does not necessarily in itself prevent the con- 
 fession from being voluntary. But where the confession is made 
 to a military superior the case is different. Considering the 
 relation that exists between officers and enlisted men and 
 between an investigating officer and a person whose conduct 
 is being investigated, it devolves upon an investigating officer, 
 or other military superior, to warn the person investigated 
 that he need not answer any question that might tend to in- 
 criminate him. Hence, confessions made by soldiers to 
 officers or by persons under investigation to investigating 
 officers should not be received unless it is shown that the 
 accused was warned that his confession might be used against 
 him, or unless it is shown clearly in some other manner that 
 the confession was entirely voluntary. 
 
 (c) At some time during the trial, corroborating evidence 
 must be introduced either direct or circumstantial, outside of 
 the confession itself, that the crime charged has been com- 
 mitted. This is what is technically known as the rule re- 
 quiring proof of the corpus delicti; that is, some proof of 
 the fact that the crime charged has probably been committed 
 by some one, so that there will be some corroboration of the 
 confession. Usually the corpus delicti is evidenced before any 
 other main fact. But for the convenience of the court or wit- 
 nesses a confession may be received, subject to being stricken 
 out upon failure to prove the corpus delicti, and if the corpus 
 delicti is afterwards proven, the rights of the accused will not be 
 prejudiced. (But see note to subparagraph (2) of par. 202.) It 
 
 188 
 
COURTS-MARTIAL EVIDENCE. ^ 225 
 
 is not requisite that this outside evidence constituting proof 
 of the corpus delicti shall be sufficient to convince the court 
 beyond a reasonable doubt of the guilt of the accused, nor 
 need it cover every element contained in the charge. For 
 instance, where desertion is charged proof of absence with- 
 out leave would be considered as proving the corpus delicti ; 
 where the charge is that a sentinel had left his post before 
 being regularly relieved it would be sufficient to prove that 
 he was not on his post during his period of duty; where a 
 homicide is charged the proof of the death of the person 
 charged to have been killed amounts to proof of the corpus 
 delicti ; and in cases of larceny and selling clothing the fact 
 that the property alleged to have been stolen or sold was 
 missing is sufficient proof. 
 
 (d) In view of the peculiar conditions of mind and body 
 under which, accused persons are often placed when making 
 confessions, of the liability to mistake on the part of the wit- 
 nesses who repeat them when oral, and of the tendency of 
 these latter to exaggerate through a zeal for conviction, evi- 
 dence of confessions, unless corroborated by other reliable 
 evidence, is in general to be received with caution. Where, 
 however, a confession is explicit and deliberate as well as 
 voluntary, and, if oral, is proved by a witness or witnesses 
 by whom it has not been misunderstood and is not misrepre- 
 sented, it is indeed one of the strongest forms of proof known 
 to the law (Winthrop, p. 499). 
 
 Courts should bear in mind that mere silence on the part 
 of an accused when questioned as to his supposed offense is 
 not to be treated as a confession. 
 
 (e) Although the confession, because not voluntary, is 
 inadmissible, yet any information given in the confession 
 that leads to the discovery of relevant facts will not render 
 testimony of such facts inadmissible, and it may be further 
 shown, by way of corroboration of such facts, that the dis- 
 covery was either wholly or partially due to the information 
 thus obtained. 
 
 NOTE 1. It has been held that where alleged confessions were 
 offered in evidence and the court directed the trial judge advocate to 
 hand the statements to the accused and the accused was asked "if 
 that was his statement," this was an invasion of the substantial rights 
 
 189 
 
^[226 CHAPTER XI. 
 
 of the accused, in that it compelled him to give evidence against him- 
 self (even though not objected to by the defense), C. M. No. 135096, 
 Anderson, August 2, 1919. 
 
 226. ADMISSIONS AGAINST INTEREST. Somewhat connected 
 with the subject of confessions is that of declarations or ad- 
 missions against one's own interest. This constitutes an- 
 other exception to the rule excluding hearsay. The law makes 
 a distinction between mere admissions and complete confessions 
 of guilt, and there is no requirement that before an admission 
 can be received in evidence there must be an affirmative show- 
 ing that it was voluntary. In many instances the accused, 
 after the commission of an offense, makes statements which 
 fall short of a full confession of guilt but do constitute im- 
 portant admissions as to his connection with the offense. 
 The rule is that such admissions if against his own interest 
 may be admitted in evidence. For instance, in a case of 
 homicide in a dance hall, if the accused when arrested made 
 the statement that he was in the hall when the homicide took 
 place, such a statement is admissible as against his interest. 
 On a trial for desertion, a statement of the accused to the sheriff 
 that he was " tired of working for the Government," and that 
 he did not want to work for them any longer, was an admission 
 and not a confession. An admission does not necessarily involve 
 a criminal intent, while a confession is an acknowledment of 
 guilt. Instances of such admissions would be (a) concealment 
 by an alleged deserter when he knew he was being searched for ; 
 (b) destruction of, or an effort to destroy, documentary evidence 
 which an accused knew was to be used against him; (c) bribery 
 or attempted bribery of a prospective witness by the accused to 
 testify that the accused was at a certain place at a certain time 
 (when he was not). (See also Wigmore, Pocket Code, Ev., 
 641-665.) 
 
 227. PRIVILEGED COMMUNICATIONS. A privileged com- 
 munication is one that relates to matters occurring during a 
 confidential relation, which it is the public policy to protect. 
 A witness can, and usually should, decline to answer a ques- 
 tion touching such a communication, and where the privilege 
 is that of the accused, or of the Government, or of any person 
 other than the witness, the court will not permit the witness to 
 
 190 
 
COURTS-MARTIAL EVIDENCE. ^f 227 
 
 answer such question, except with the consent of the person 
 entitled to the benefit of the privilege or of the proper govern- 
 mental authorities, as the ease may be. The confidential rela- 
 tions that were protected at common law and which are met 
 with in court-martial practice are the following : 
 
 State Secrets. Communications made by informants to 
 public officers engaged in the discovery of crime are privi- 
 leged. The deliberations of courts and of grand and petit 
 juries are privileged, but the results of their deliberations 
 are not privileged. Diplomatic correspondence, and, in gen- 
 eral, all oral or written official communications which, in the 
 opinion of the President, would be detrimental to the public 
 interests, and official communications between the heads of 
 the departments of the Government and their subordinate 
 officers are privileged. Were it otherwise it would be im- 
 possible for such superiors to administer effectually the pub- 
 lic affairs with which they are intrusted. 
 
 Husband and Wife. Communications between husband 
 and wife are privileged. (But see par. 228, infra.) 
 
 Attorney and Client. The testimony of the attorney or 
 his interpreter or stenographer, as to communications be- 
 tween the client and the attorney, made while the relation of 
 attorney and client existed and in connection with the matter 
 for which the attorney was engaged, will not be received by 
 a court, unless such communications clearly contemplate the 
 commission of a crime; i. e., perjury, subornation of perjury, 
 etc. Of course, communications prior to or subsequent to the 
 relation are not privileged. The client, but not the attorney, 
 may waive this privilege. 
 
 Police secrets. The privilege that extends to communica- 
 tions made by informants to public officers engaged in the 
 discovery of crime should be given a common-sense interpre- 
 tation. The public interests would ordinarily be prejudiced 
 by reason of the disclosure of such communications in a case 
 as involved the identity of parties employed for the detection 
 of criminals or would endanger the party who made such 
 communication, or would injuriously affect the chances of 
 securing such agents for the detection of crime in the future. 
 But the material interests of the accused to vindicate his in- 
 
 191 
 
^| 228 CHAPTER XI. 
 
 nocence should not be allowed to suffer by reason of the 
 exclusion of such evidence. 
 
 The purpose of the privilege, extended to communications 
 between husband and wife and attorney and client, which 
 grows out of a recognition of the public advantage that ac- 
 crues from encouraging free communication in such circum- 
 stances, is not disregarded by allowing outside parties who 
 overhear such privileged communications to testify to what 
 they have overheard. It would not be permitted, however, 
 for one of the minor children of the parents, who might 
 reasonably be presumed by the parents not to understand 
 what they were talking about, to testify to communications 
 overheard by such child. 
 
 228. PRIVILEGE OF WIFE AND HUSBAND TO TESTIFT. At 
 common law the rule was that neither husband nor wife is 
 competent as a witness against the other, except in a case of 
 bodily injury inflicted by one of them upon the other. 
 
 A married woman is excluded as a witness from motives of 
 public policy. (Lucas v. Brooks, 18 Wall., 436, 453.) 
 
 Certain departures have been made from the common-law 
 rule by Federal statutes and decisions. 
 
 In any prosecution for bigamy, polygamy, or unlawful 
 cohabitation under any statute of the United States, the 
 lawful husband or wife of the accused shall be a competent 
 witness, and may be called, but shall not be compelled to 
 testify in such proceedings, and shall not be compelled to 
 testify * * * without the consent of the husband or wife, 
 as the case may be. (Act of Mar. 3, 1887, 24 Stat., 635.) 
 
 The wife should be permitted to testify against her hus- 
 band, even without his consent, whenever she is the par- 
 ticular individual directly injured by the crime committed 
 by her husband. It would, therefore, be appropriate in such 
 cases against a husband as bodily injury of any character 
 inflicted by him upon her, bigamy, polygamy, or unlawful 
 cohabitation, abandonment of wife and children, or failure to 
 support them, or designating another woman beneficiary under 
 the War Risk Insurance Act (C. M. 112488, McCollister, May 22, 
 1918), or using or transporting her for "white-slave" pur- 
 
 192 
 
COURTS-MARTIAL EVIDENCE. ^f 229 
 
 poses (C. M. 114676, Wilson, May 22, 1918), or immoral pur- 
 poses, for the wife to be permitted to testify against her 
 husband; but she can not be compelled to do so, and her state- 
 ment of her reason for declining to testify can not be treated as 
 proof of the marriage. (C. M. 121028, Dorton, Nov. 14, 1919.) 
 
 229. TELEGRAMS Nor PRIVILEGED. Neither private tele- 
 grams nor the information regarding them that comes to the 
 knowledge of telegraph operators, either military or civil, 
 are privileged. Telegraph operators, both military and civil, 
 may be subpoenaed to testify before a court-martial as to pri- 
 vate telegrams, and private telegrams may be brought before 
 a court-martial by the usual process. 
 
 230. CONFIDENTIAL PAPERS. The reports of special inspec- 
 tions by the Inspector General's Department are confidential 
 documents and the testimony taken is considered a part and 
 parcel of such reports. There is no law or regulation which 
 requires copies of the evidence contained in these confidential 
 reports to be furnished to officers whose conduct has been un- 
 der investigation. So also the reports of the Judge Advocate 
 General to the Secretary of War have always been regarded 
 as confidential communications and it has not been the prac- 
 tice to furnish copies of them to parties outside the depart- 
 ment in the absence of special authority from the Secretary 
 of War. If the prosecution has had access to any such docu- 
 ment, fairness requires that the accused should have eqnal 
 access to it. 
 
 231. COMMUNICATIONS FROM OFFICERS OR SOLDIERS TO MED- 
 ICAL OFFICERS NOT PRIVILEGED. It is the duty of medical 
 officers of the Army to attend officers and soldiers when sick, 
 to make the annual physical examination of officers, and ex- 
 amine recruits for enlistment, and they may be specially 
 directed to observe an officer or soldier or specially to examine 
 or attend them; such observations, examination, or attend- 
 ance would "be official and the information acquired would be 
 official. While the ethics of the medical profession forbid 
 them to divulge to unauthorized persons the information thus 
 obtained and the statements thus made to them, such in- 
 formation and statements do not possess the character of 
 privileged communications. If the medical officer, when 
 
 21358 20 13 
 
 193 
 
Tf 232 CHAPTER XI. 
 
 called as a witness before a court-martial, refuses to testify 
 to such matters, he is subject to charges under A. W. 96. 
 
 232. COMMUNICATIONS BETWEEN CIVILIAN PHYSICIANS AND 
 PATIENTS NOT PRIVILEGED. Neither are the communications 
 between civilian physician and patient privileged, and the 
 refusal of a physician to testify to such communications 
 would subject him to the prosecution provided by A. W. 23. 
 
 233. COMPULSORY SELF - CRIMINATION PROHIBITED. The 
 fifth amendment to the Constitution of the United States 
 provides that in a criminal case the person shall not be com- 
 pelled " to be a witness against himself." The principle em- 
 bodied in this provision applies to trials by courts-martial 
 and is not limited to the person on trial, but extends to any 
 person who may be called as a witness. A. W. 24 provides 
 that no witness before a military court, commission, court 
 of inquiry, or board, or before any officer, military or civil, 
 designated to take a deposition to be read in evidence be- 
 fore a military court, commission, court of inquiry, or board, 
 shall be compelled to incriminate himself or to answer any 
 question the answer to which may tend to incriminate him, 
 or to answer any question not material to the issue when such 
 answer might tend to degrade him. 
 
 Thus, it is error requiring a disapproval of the findings and 
 sentence of the court for the trial judge advocate to call the 
 accused as a witness against himself and thus elicit important 
 admissions from him (C. M. 108428, Hamilton, Jan. 5, 1918; C. M. 
 129804, Jones, May 20, 1919; C. M. 128735, Soldier, Apr. 23, 
 1919). 
 
 It must be noted that this rule draws a distinction between 
 questions that tend to criminate and those that tend to de- 
 grade, the constitutional protection extending in the first in- 
 stance against questions whether material or not, while in 
 the second instance the statutory protection extends only to 
 questions which are not material to the issue. 
 
 (a) Where privilege as to self -crimination ceases. As in 
 the following cases the witness would not be liable to the law's 
 punishment, his privilege as to self-incrimination ceases : 
 
 Conviction and the suffering of the punishment; acquittal; 
 former jeopardy (except a former trial, upon a rehearing or new 
 
 194 
 
COURTS-MARTIAL, EVIDENCE. If 234 
 
 trial, or where a rehearing or new trial has been or may be 
 ordered) ; abolition of the general crime, subsequent to its 
 commission (provided the rule of criminal law thereby exon- 
 erates prior offenders) ; lapse of time barring prosecution of 
 the particular offense; executive pardon for the particular 
 offense; statutory amnesty, before or after the act, for the 
 particular criminal act or for the offender. (Wigmore, p. 
 3163.) 
 
 234. PRIVILEGE AGAINST SELF- CRIMINATION is A PERSONAL 
 ONE. The privilege of a witness to refuse to respond to a 
 question, the answer to which may incriminate him, is a per- 
 sonal one, which the witness may exercise or waive as he may 
 see fit. It is not for the trial judge advocate or accused to 
 object to the question or to check the witness, or for the court 
 to exclude the question or direct the witness not to answer. 
 Where it appears that the witness is ignorant of his rights 
 and that the answer to a question might incriminate him, 
 the president of the court will inform him of his right to 
 decline to make any answer which might tend to incriminate 
 him. 
 
 235. PROCEDURE WHERE ALLEGED INCRIMINATING QUESTION 
 Is ASKED. Where the court overrules an objection made by 
 a witness that the answer to a question will incriminate him 
 the witness should answer the question. If he is a person 
 subject to military law and refuses to answer, charges may be 
 preferred against him under A. W. D6. If he is a civilian 
 witness the facts should be certified to the United States dis- 
 trict attorney by the court with a view to his prosecution as 
 provided in A. W. 23. (See A. W. 23 as to other tribunals 
 and agencies.) In any case of refusal to answer a question 
 after the court has held it to be a proper one, the refusal may 
 be commented on by the trial judge advocate or counsel in his 
 remarks to the court, 
 
 236. NOT SEIjF-CRIMINATION TO REQUIRE ACCUSED TO SuB- 
 
 MIT TO PHYSICAL EXAMINATION. "The prohibition of the 
 fifth amendment against compelling a man to give evidence 
 against himself is a prohibition of the use of physical or 
 moral compulsion to extort communications from him and 
 not an exclusion of his body as evidence when it is material." 
 (Holt v. U. S., 218 U. S., 245.) 
 
 195 
 
^f 236 CHAPTER XI. 
 
 The following are illustrations of what might be required 
 without violating the privilege contained in A. W. 24. or the 
 principle embodied in the fifth amendment: 
 
 (a) The admission of testimony as to marks and scars 
 found upon the person of a defendant, in a criminal prosecu- 
 tion, during a forcible examination of him with a view to 
 ascertaining his identity for the purpose of arresting him, is 
 not prohibited. (O'Brien v. Indiana, L. R. A., Book 9, 1890, 
 p. 323; see also 12 Cyc., 401.) 
 
 (b) Upon the trial, a question was raised as to the identity 
 of the defendant. One witness testified that he knew the de- 
 fendant, and knew that he had tattoo marks (a female head 
 and bust) on his right forearm. The court thereupon com- 
 pelled the defendant, against his objection, to exhibit his arm, 
 in such a manner as to show the marks to the jury. (State v. 
 Ah Chuey, alias Sam Good, 14 Nev., 79.) 
 
 (c) An officer of the Army was "ordered to a place for 
 identification by civilian witnesses in relation to charges 
 which were pending against the officer, and it was held that 
 such an order would not be in violation of the officer's privi- 
 lege, as it called for no testimonial communication from him. 
 
 It follows that it would be appropriate for the court to 
 order the accused to remove his clothing for the purpose of 
 examination by the court or by a surgeon who would later 
 testify as to the results of his examination ; and, upon refusal 
 to obey the order, the accused might have his v clothing re- 
 moved by force. The accused might likewise be compelled 
 to try on clothing or shoes or place his bare foot in tracks, 
 etc. But, where resort to extreme force would be necessary 
 to compel compliance in the presence of the court, it would 
 comport more with the dignity of the court to have a surgeon 
 make the examination out of the presence of the court and 
 testify as to the result of the examination, or to advise the 
 accused as to the purpose of the examination, and to warn 
 him that his refusal to obey would be considered as an ad- 
 mission on his part of what was sought to be ascertained 
 by the examination. This conclusion would be quite within 
 legal bounds as to presumption of facts. 
 
 196 
 
COUKTS-MAKTIAL EVIDENCE. ^ 236a 
 
 SECTION IV. 
 DOCUMENTS. 
 
 236a. General Rules Applicable to Documents. In the use of 
 documents (written or printed) in evidence, there are four 
 fundamental rules to be satisfied, each of them resting on ex- 
 perience demonstrating them to be necessary or useful, where 
 any real dispute exists. 
 
 (1) Rule 1. Production of the Original. When the con- 
 tents of a document are to be proved, the original should be 
 produced, if it can be obtained; if not, and then only, resort may 
 be had to a copy, or to oral testimony based on recollection. 
 
 (2) Rule 2. Giving Testimonial Status to a Writing. When 
 a document is not one having a per se legal effect (such as a 
 note, check, deed, or will) it is virtually written testimony. 
 Hence, it must be made a part of the testimony of some witness, 
 who on the stand adopts it and verifies it. Two common appli- 
 cations of this are the use of memoranda (par. 241) and maps, 
 etc. (par. 245). 
 
 (3) Rule 3. Hearsay 'Rule; Exception for Official State- 
 ments. When a document is of the foregoing sort, i. e., a testi- 
 monial writing requiring adoption by some witness, and if the 
 author of it does not appear as a witness, it remains only as a 
 hearsay statement, i. e., by some one not sworn or cross-examined ; 
 hence it can be received only under some exception to the hear- 
 say rule (par. 221). Entries in books of accounts of deceased 
 persons (par. 244) are an example of this. Official records and 
 certificates (pars. 238 and 238a) are another common example; 
 here the principle is that an official statement is admissible only 
 if the officer making it had the duty or authority to do or to 
 know the matter stated by him. 
 
 A principal application of this rule occurs where a purporting 
 copy is offered to prove the contents of an original not available 
 for production under Rule (1) above. Here the copy, being 
 somebody's testimony to the contents of the original, must be 
 verified by calling a witness to the stand; or else the statement 
 of the absent person signing it as a true copy must be received 
 under the exception to the hearsay rule for official statements 
 (pars. 238 and 238a). 
 
 197 
 
Tf 236b CHAPTER xi. 
 
 (4.) Rule 4. Authentication. Any and every document must 
 be authenticated; i. e., it must be shown to have been actually 
 made by the person who purports to have made it; in short, its 
 genuineness must be shown. This may be proved like any other 
 fact by calling a witness who saw it executed, or, specially, 
 by calling a witness to the style of handwriting (par. 240). 
 It may also be done by using the (hearsay) statement of an ab- 
 sent person, under the exception for official statements (pars. 238 
 and 238a), as where a notary's certificate of the party's acknowl- 
 edgment is used, or where an official copy by the custodian is 
 used. 
 
 In all such cases of the use of official documents, proof of 
 genuineness is facilitated by the presumption of genuineness 
 which attaches to an official seal or signature, with recital of 
 the official title of the person signing. No further evidence of 
 genuineness is needed, where this presumption applies. 
 
 The foregoing four principles are not all called into play for 
 every document, but sometimes one, sometimes two or more, are 
 concerned in using the same document. But all of the ensuing 
 specific rules are based on, and reducible to, one or another of 
 the foregoing four principles. Hence, the question will be, in 
 every case of objection to a document, which one or more of 
 these principles is at the root of the objection, and thus it may 
 be determined how to overcome the objection and satisfy the 
 requirement of the principle involved. 
 
 236b. Writings Not in Dispute. Where a document is offered 
 in evidence, the application of the foregoing principles, viz, that 
 the original be produced if available; that a testimonial writing 
 be verified on the stand, or, if not, that the document or entry 
 be made by an officer having a duty to make it; that an official 
 copy be shown to have been made by an officer having custody 
 of the original; and that the signature be authenticated; should 
 not be rigorously enforced where it appears to the court there is 
 no real issue or dispute as to the correctness or authenticity of 
 the document or entry. Unless such strict proof is called for, on 
 the request of the accused, or by reason of necessity of showing 
 in the record the facts giving jurisdiction or involving the sub- 
 stance of the offense, the observance of the general rules in every 
 detail will not ordinarily be deemed a requisite. 
 
 108 
 
COURTS-MARTIAL EVIDENCE. f 237 
 
 (RULE 1:) 
 
 237. MANNER OF PROVING CONTENTS OP WRITING. 
 A writing is the best evidence of its own contents 
 and must be introduced to prove its contents. But if 
 it has been lost or destroyed or it is otherwise satis- 
 factorily shown that the writing can not be produced, 
 then the contents may be proved by a copy or by oral 
 testimony of witnesses who have seen the writing. 
 Under this rule if it is desired to prove the contents of a 
 private letter or other unofficial paper, or an official 
 paper such as a pay voucher, written claim against the 
 Government, pay roll or muster roll, company morning 
 report, enlistment paper, etc., the strict and formal 
 method of doing so is to prove by proper evidence that 
 the writing is in fact what it purports to be, and then 
 introduce in evidence the original or a properly authen- 
 ticated copy. 
 
 When the original consists of numerous writings 
 which can not conveniently be examined by the court, 
 and the fact to be proved is the general result of the 
 whole collection, and that result is capable of being 
 ascertained by calculation, the calculation may be made 
 by some competent person and the result of the calcula- 
 tion testified to by him, as, for instance, if the fact to 
 be proved is the balance shown by account books. In 
 such case the opposite party should have access to the 
 books and papers from which the calculation is made. 
 
 It is customary for the party introducing a writing in 
 evidence to read it to the court. But unless the court 
 directs it to be read at once it may be read at any time. 
 NOTE. Care must be exercised in making use of the foregoing re- 
 laxation of the general rule relating to testimony resulting from ex- 
 amination of numerous writings. Thus, for example, where on a 
 prosecution for embezzlement of company funds the only evidence for 
 the prosecution of the amount which should have been in the fund, 
 was that of an officer who testified that he had examined the books 
 and found the shortage complained of, it was held that this evidence 
 was incompetent, and so much of the finding of guilty as was based on 
 that evidence was disapproved, because the books themselves, con- 
 stituting the best evidence, were not introduced in evidence; since, 
 while the rule is that where the originals consist of numerous docu- 
 
 199 
 
^ 237a CHAPTER xi. 
 
 ments which can not be conveniently examined in court, and the fact 
 to be proved is the general result of an examination of the whole col- 
 lection, evidence may be given of the result by any person who has. 
 examined the documents and who is skilled in such matters, provided 
 the result is capable of being ascertained by calculation, yet it was not 
 shown in that case (a) that the books could not have been conveniently 
 examined by the court, nor (b) that the officer testifying was " skilled 
 in such matters." (C. M. 130729, Tengler, June 4, 1919.) In such 
 cases it must be shown to the court that: 
 
 (a) The writings are so numerous or bulky that they can not con- 
 veniently be examined by the court. 
 
 (b) The fact to be proved is the general result of the whole collec- 
 tion. 
 
 (c) The result is capable of being ascertained by calculation. 
 
 (d) The witness is a person skilled in such matters, and capable of 
 making the calculation. 
 
 (e) He has examined the whole collection and has made such a 
 calculation. 
 
 (f) The opposite party has had access to the books and papers from 
 which the calculation is made. 
 
 (g) Opportunity is afforded the opposite party to cross-examine the 
 witness upon the books and papers in question, and to have them, or 
 such of them as the cross-examiner may desire (or properly authenti- 
 cated or proved copies), produced in court for the purposes of the 
 cross examination. 
 
 23 7a. Report of Investigating Officer Summary of Evidence 
 of Preliminary Investigation. Neither the report of an investi- 
 gating officer nor the summary of the testimony of a witness on a 
 preliminary investigation of a charge is competent evidence, 
 whether or not the investigating officer or the witness in question 
 be called as a witness at the trial. The witness should be re- 
 quired to testify personally to the facts, regardless of any former 
 statement. 
 
 NOTE 1. On cross-examination he may be asked if he did not say 
 such or such a thing or things in his former statement or report, for 
 the purpose of testing his memory, accuracy, or veracity, or of laying 
 a foundation to impeach him; and, if the cross-examiner reads any 
 part of the report or former statement into evidence in connection with 
 the cross-examination, the opposite party may offer in evidence so 
 much of the do'cument as bears upon 'the same immediate subject, for 
 the purpose of getting the whole former statement of the witrfess on 
 that immediate subject fairly before the court. 
 
 NOTE 2. The investigating office* can hot testify to any statements 
 made to him in the course of the investigation, since "his repetition 
 of such statements would be hearsay. The witness making the state- 
 
 200 
 
COURTS-MARTIAL EVIDENCE. ^f 238 
 
 ments must be called to testify to the facts. (See pars. 221 and 22Ia, 
 supra, " Hearsay.") 
 (RULE 1:) 
 
 238. PUBLIC RECORDS. An important exception to the 
 rule that the contents of a writing must be proved by the 
 writing itself is in the case of public records required 
 to be preserved on file in a public office, in which case 
 duly authenticated copies may be admitted in evidence 
 equally with originals without first proving that the 
 originals have been lost, destroyed, or their absence ac- 
 counted for in some other way. This exception is made 
 necessary by the inconvenience to the public business 
 that would result if such records were removed. 
 
 War Department and Army Kecords. Copies of any rec- 
 ords or papers in the War Department, in any of its 
 bureaus ; or in any office of any of the supply depart- 
 ments; or at the headquarters of an Army, field army, 
 corps, division, brigade, or regiment ; or of an army area, 
 corps area, territorial division, territorial department, or 
 post, if authenticated by the impressed stamp of the 
 bureau, office, or headquarters having custody of the 
 originals (for example, " The Adjutant General's Office, 
 official copy"), may be admitted in evidence equally 
 with the originals thereof before any military court, 
 commission, or board, or in any administrative matter 
 under the War Department, provided the originals would 
 be admissible under the rules of evidence. 
 
 NOTE. It is to be borne in mind that the mere fact that a docu- 
 ment is~an official report does not in itself make it admissible in evi- 
 dence. It must be admissible, if at all, either under the general rules 
 of evidence or under some specific provision of law or of this Manual. 
 
 RULE 3:) 
 
 238a. Certain Official Writings Are Evidence of Facts Re- 
 cited Therein. Where an official duty or authority exists to 
 record certain facts and events, the writing containing the 
 evidence is competent (i. e., prima facie) evidence of the 
 facts and events recorded in it, without calling to the stand 
 the officer who made it. For instance, the original of an en- 
 listment paper, the physical examination paper, outline- 
 figure and finger-print card, and the original morning re- 
 
 201 
 
^f 239 CHAPTER XI. 
 
 port sheet are competent evidence of the facts recited in 
 them. (A descriptive and assignment card, however, is 
 not an original paper. All the information it contains is 
 compiled from other original sources, and therefore it is 
 not evidence of the facts recited in it.) 
 (RULE 4:) 
 
 239. AUTHENTICATION OF WRITINGS. In order to 
 prove that a writing is what it purports to be, in case of 
 a private letter, the person who received the letter should 
 testify that he received it and he should identify it. Then 
 it should be proved that the signature is in the hand- 
 writing of the purported writer of the letter. But in 
 proving the genuineness of letters the rule is that the ar- 
 rival by mail of a reply purporting to be from the ad- 
 dressee of a prior letter duly addressed and mailed, is 
 sufficient evidence of the genuineness of the reply to jus- 
 tify its introduction in evidence. A similar rule prevails 
 as to telegrams purporting to be from the addressee of a 
 prior telegram or telephone message. 
 
 If the writing is an official document such as a pay 
 voucher, the person having official custody should pro- 
 duce it in court and testify that he is the custodian of the 
 writing and that it is the pay voucher of the person 
 whose name is signed. The signature to the voucher 
 should be proved to be genuine if that^is not admitted. 
 In court-martial practice the opposing party usually ad- 
 mits a public document without requiring such strict 
 proof. The entries in pay vouchers, muster and pay 
 rolls, company morning reports, and other public rec- 
 ords used in the Army, are open to inspection by both 
 parties, and contain numerous entries not pertaining to 
 the case being tried. It is the practice, in the absence of 
 an objection, to prove their contents by the oral testimony 
 of a witness, usually the custodian, reading the material 
 matter in court. 
 
 240. COMPARISON OF HANDWRITING. The common-law rule 
 of evidence would not permit a comparison of handwriting 
 unless the writing to be used as a standard was properly in 
 the case'for other purposes than mere comparison. This rule 
 
 202 
 
COURTS-MAKTIAL EVIDENCE. II 241 
 
 was changed by act of Congress approved February 26, 1913 
 (37 Stat., 683), which provides 
 
 That in any proceeding before a court or judicial officer of 
 the United States where the genuineness of the handwriting 
 of any person may be involved, any admitted or proved hand- 
 writing of such person shall be competent evidence as a basis 
 for comparison by witnesses, or by the jury, court, or officer 
 conducting such preceding, to prove or disprove such genu- 
 ineness. 
 
 But before admitting such specimens of handwriting, satis- 
 factory evidence should be offered as to the genuineness of 
 the same. 
 
 The rule prescribed by Congress will govern in court-mar- 
 tial procedure. 
 
 241. USE or MEMORANDA. Memoranda may be used to aid 
 the memory or to supply facts once known but now forgotten. 
 Memoranda are therefore of two sorts : First, if the witness 
 does not actually remember the facts but relies on the memo- 
 randum exclusively (as in the case of a bookkeeper using an 
 old account book) , then the witness must be able to guarantee 
 that the record accurately represented his knowledge and 
 recollection at the time of its making, but it is not necessary 
 that he should himself have made the record if he can state 
 from his present recollection that it was correct when made 
 and the entries must have been made at or near the time, and 
 the recollection at such time must have been fresh as to the 
 facts recorded. Second, if the witness can actually remember 
 the facts and merely needs the memorandum to stimulate 
 or revive his memory, or a part of it, then the above limita- 
 tions do not strictly apply. But the court should see to it 
 that no attempt is made to use such a paper to impose a false 
 memory on the court under guise of refreshing it. 
 
 The memorandum to be used must always, on demand, be 
 shown to the opponent for purposes of inspection and cross- 
 examination, and fairness and justice require that where a 
 memorandum is consulted before trial for refreshing a wit- 
 ness's recollection, statement should be made by the trial 
 judge advocate or counsel to that effect, and the memoran- 
 dum should be brought into court by the side whose wit- 
 ness has so consulted it. 
 
 203 
 
f 242 CHAPTER XI. 
 
 242. MEMORANDUM AS EVIDENCE. Where a memorandum 
 does not serve to refresh the recollection of the witness, but 
 he can state that it was made when his memory was fresh and 
 can give the guaranty of accuracy and recollection called for 
 by the preceding section, the memorandum itself will be 
 admissible. Where the witness's certainty rests on his usual 
 habit or course of business in making memoranda or records, 
 it is sufficient. 
 
 243. MEMORANDUM FOR REFRESHING RECOLLECTION. 
 Where a witness states that the memorandum to be used 
 refreshes his recollection to the extent of his now remember- 
 ing the data contained therein, the common rule is to have 
 him testify as to such facts without admitting in evidence the 
 memorandum itself. 
 
 244. BOOKS OF ACCOUNT. Entries in books of account, 
 where such books are proven to have been kept in the regular 
 course of business, and the entrant is dead, insane, out of the 
 jurisdiction of the court, or otherwise unavailable to testify, 
 are admissible as evidence. Also the lack of an entry in a 
 series of written entries is admissible as an implied state- 
 ment that no events occurred of the kind that would have 
 been recorded. 
 
 Where the entrant is available to testify in court, books 
 of account will be used, just as memoranda are used for the 
 purpose of refreshing the recollection of the witness, and 
 may be introduced in evidence in connection with his testi- 
 mony. 
 
 Where the entrant only records an oral report or written 
 memorandum made in the regular course of business by an- 
 other person or persons, such other person or persons, if 
 available, must be called to testify. 
 
 The original document of entry must be produced or ac- 
 counted for. W'here a composite entry is used, the extent to 
 which intermediate memoranda must be produced depends 
 on the circumstances of each case. As between ledger and 
 daybook or other kinds, the book required is that which con- 
 tains^the first regular and collected record of the transac- 
 tions. (Wigmore, sec. 1530.) 
 
 204 
 
COURTS-MARTIAL EVIDENCE. If 245 
 
 245. MAPS, PHOTOGRAPHS, .ETC. Maps, photographs, 
 sketches, etc., as to localities, wounds, etc., are admissible as 
 evidence when , properly verified by (1) the party that made 
 them, or (2) by anyone personally acquainted with the locality, 
 object, person, etc., thereby represented or pictured, and able to 
 state their correctness, from his own personal knowledge or 
 observation, or (3) when coming from official sources that are 
 a guaranty of truthfulness and accuracy. This character 
 of evidence is capable of gross misrepresentation of facts and 
 should be carefully scrutinized. Finger prints, upon such 
 verification or guaranty, are admissible. 
 
 SECTION V. 
 EXAMINATION OF WITNESSES. 
 
 246. WITNESSES EXAMINED APART FROM EACH OTHER. 
 Witnesses, after having been first sworn as provided in para- 
 graph 134, are usually examined apart from each other, no 
 witness being allowed to be present during the examination 
 of another who is called before him. But this rule is not 
 inflexible; it is in practice subject to the discretion of the 
 court, nor is it ever so rigidly observed as to exclude the tes- 
 timony of a person because he has been present at the ex- 
 amination of other witnesses ; but the fact of such presence may 
 be commented upon in argument by either party, in relation to 
 the weight to be given the evidence of 'the witness, 
 
 247. OBJECTIONS TO COMPETENCY ; WHEN MADE. Any ob- 
 jection to the witness's competency should be made before he 
 is sworn. If his incompetency should later appear, however, 
 a valid objection should be sustained, or the court, of its own 
 motion, should refuse to hear him further, and order that any 
 testimony he may have already given will be disregarded. 
 
 248. NUMBER OF WITNESSES KEQUIRED. Though there are 
 occasional dangers in trusting to a single witness, the testi- 
 mony of a single qualified witness to the facts in issue would 
 suffice to sustain a conviction, except as to (1) treason, where 
 there must be two witnesses testifying credibly to the same 
 overt act, or (2) perjury, where there must be either (a) a 
 
 205 
 
^[ 249 CHAPTER XI. 
 
 second witness to the falsity alleged or () a corroboration 
 of a single witness by some other form of evidence. The rule 
 as to perjury does not apply, however, where the falsity can 
 be inferred from a contradictory statement made by the ac- 
 cused. (Wigmore's P. C., 338, 339.) For instance, where a 
 person is charged with a perjury as to facts directly dis- 
 proved by documentary or written testimony springing from 
 himself, with circumstances showing the corrupt intent; in 
 cases where the perjury charged is contradicted by a public 
 record, proved to have been well known to the defendant 
 when he took the oath ; and in cases where the false swearing 
 can be proved by his own letters relating to the fact sworn 
 to, or by other written testimony existing and being found 
 in the possession of a defendant and which has been treated 
 by him as containing the evidence of the fact recited in it. 
 (U. S. v. Wood, 14 Pet., 430.) 
 
 (See par. 224 as to corroboration of an accomplice and see 
 par. 225 as to corroboration of a confession.) 
 
 249. ORDER OF EXAMINATION OF WITNESSES. The proper 
 and usual order and sequence of examination of witnesses 
 contemplates that the witnesses for the prosecution shall be 
 called first and then the witnesses for the accused, and after- 
 wards the witnesses for the prosecution in rebuttal of testi- 
 mony brought out by the accused, and then the witnesses for 
 the accused in rebuttal of those last introduced by the prose- 
 cution, and then witnesses by the court ; and that the method 
 of examining each witness shall be direct examination, cross- 
 examination, redirect examination, recross-examination, and 
 examination by the court. However, the court may, in the 
 interest of truth and justice, call or recall witnesses, or per- 
 mit their recall at any stage of the proceedings; it may 
 permit material testimony to be introduced by either party 
 quite out of its regular order and place, or permit a case once 
 closed by either or both sides to be reopened for the introduc- 
 tion of testimony previously omitted, if convinced that such 
 testimony is so material that its omission would leave the 
 investigation incomplete. In all such cases both parties must 
 be present, and any testimony thus received would be subject 
 to cross-examination and rebuttal by the party to whom it 
 may be adverse. 
 
 200 
 
COURTS-MARTIAL EVIDENCE. If 250 
 
 250. DIRECT EXAMINATION Identification of Accused. The 
 first question to be asked each witness, whether called for the 
 prosecution or defense or by the court, will be, whether he 
 knows the accused, and if he does to state who he is. This 
 question is always asked by the trial judge advocate. The 
 accused having been identified, the examination of the witness 
 is continued by the person calling him. All questions and 
 answers are recorded in full, and as far as possible in the 
 exact language of the witness. If an objection is made to a 
 question, the reason for the objection will be stated. 
 
 The identification of the accused should be carefully proved, 
 both for the establishment of the court's jurisdiction over him, 
 and also for the proof of his actual complicity in the offense 
 where any doubt is raised on this point. Attention is here called 
 to the specific modes mentioned in paragraph 223a supra (iden- 
 tification), and. paragraph 239 supra (documents), and to the 
 proof of the allegations required by paragraph 74b to be made 
 in the specifications, as to the accused's name, rank or grade, 
 title, and organization. 
 
 251. CROSS-EXAMINATION. In general the cross-examina- 
 tion will be limited to matters brought out by the direct ex- 
 amination of the witness, but in the discretion of the court 
 exceptions may be made to this rule. As it is the purpose of 
 the cross-examination to test the credibility of the witness 
 it is permissible to investigate the situation of the witness 
 with respect to the parties and to the subject of the litigation, 
 his interest, his motives, inclinations, and prejudices, his 
 means of obtaining a correct and certain knowledge of the 
 facts to which he bears testimony, the manner in which he 
 has used those means, his powers of discernment, memory, 
 and description. Leading questions may be freely used on 
 cross-examination. (Davis, p. 285.) 
 
 252. REDIRECT AND BECROSS-EXAMINATION. Ordinarily the 
 redirect examination will be confined to matters brought out 
 on the cross-examination, and the recross-examination will 
 be confined to matters brought out on the redirect examina- 
 tion. But in these matters the court, in the interest of truth 
 and justice, should be liberal in relaxing the rule. 
 
 253. EXAMINATION BY THE COURT. The court or a member 
 may ask questions of a witness when it is apparent that the 
 
 207 
 
Tf 253a CHAPTER xi. 
 
 examination of the witness already made has failed to bring 
 out matters material to the issues, and for the same reasons a 
 witness may be recalled or a new witness summoned by the 
 court. 
 
 253a. Questions by Members of the Court. Questions asked 
 by members of the court and testimony sought or elicited thereby 
 are subject to the same rules of evidence as though the questions 
 had been proposed by the trial judge advocate or counsel for the 
 accused, and are subject to objection by either party or by an- 
 other member of the court in the same manner as questions 
 asked by the trial judge advocate or the defense. No questions 
 should be asked by a member of the court of any witness called 
 by either party, nor permitted to be answered, which under the 
 rules of evidence, neither of the parties could ask. It is the duty 
 of members of the court to carefully observe the rules of evi- 
 dence in any questions they may ask, and the duty of the court 
 to enforce the rules, of its own motion, and without waiting for 
 objection from either party, more carefully, if anything, against 
 questions asked by the president or by any other member of the 
 court than against questions asked by the trial judge advocate 
 or counsel for the accused, because of the natural hesitancy of 
 the parties themselves to object to questions asked by a member of 
 the court, and because improper testimony elicited through ques- 
 tions by members of the court is likely to have more weight, and 
 any error in admitting it likely to be more seriously prejudicial 
 to the accused than if brought out by questions of the parties. 
 If new matter be elicited by questions of the court, the party 
 toward whom such new matter is unfavorable, will be permitted 
 to cross-examine" thereon, whether or not the witness was called 
 by him. 
 
 254. LEADING QUESTIONS Double Questions. (a) Leading 
 Questions. Leading questions ; that is, questions which either 
 (1) suggest the answer it is desired the witness shall make, 
 or (2) which, embodying a material fact, are susceptible of 
 being answered by a simple yes or no, must not be asked 
 on direct examination of a witness by the party calling him. 
 For example, the question, "Did you hear the accused say 
 he did not intend to come back?" would be leading. The 
 proper form of the question would be : " Did the accused say 
 
 208 
 
COURTS-MARTIAL EVIDENCE. ^[254 
 
 anything?" If the answer is in the affirmative, add " State 
 what he said." Or, where a knife is introduced in evidence 
 a witness should not be asked on direct examination whether 
 that is the knife he saw the accused stab Pvt. A. with, but he 
 should be asked first whether he recognizes the knife, and if 
 he answers that he does, then he may be asked where he saw 
 it, and what was done with it, etc. 
 
 (b) Double Questions. Double questions are questions embody- 
 ing two or more separate elements or questions. Double ques- 
 tions must not be asked either on direct or cross-examination, 
 since they are always confusing to a witness, frequently leading 
 to misunderstanding and unintentional misstatements by the 
 witness; and since, furthermore, particularly if asked on cross- 
 examination in the form of a leading question to which a direct 
 answer yes or no may be demanded, a double question may con- 
 stitute a trap for the witness. Such a question may, in fact, 
 not be susceptible of a categorical answer either yes or no. It 
 will therefore never be permitted to be asked. For example, the 
 question " Did you see the accused leave his quarters with a 
 bundle under his arm?" is, besides being leading, a double ques- 
 tion, and may not be susceptible of a categorical answer yes or 
 no. It consists, really, of three questions, viz: (1) Did you see 
 the accused? (2) If so, was lie leaving his quarters when you 
 saw him? and (3) if so, did he have a bundle under his arm? 
 Manifestly the witness may have seen the accused, at the partic- 
 ular time in question, and yet not have seen him leave Ms 
 quarters, and not have seen him with a bundle under his arm; 
 or he may have seen him leave his quarters but without a bundle 
 under his arm, or he may have seen him with a bundle under his 
 arm but not leaving his quarters ; or again he may have seen him 
 (either leaving his quarters or otherwise) with a bundle, but not 
 under his arm. Each of these various circumstances may, very 
 possibly, have a material bearing on the case. The injustice of 
 such a question, both to the witness and to the accused, and its 
 misleading effect, is apparent from a consideration of the fact 
 that if the witness be required to answer yes or no to such a 
 question he may, for instance, answer " no," meaning simply 
 that the accused when he saw him did not have a bundle under 
 his arm, or perhaps meaning that although he saw the accused 
 
 21358 20 14 
 
 209 
 
^ 254 CHAPTER XI. 
 
 with a bundle under his arm he was not then in the act of leav- 
 ing his quarters. But the negative answer may be construed as 
 a complete denial of having seen the accused at all. On the 
 other hand, if he should answer " yes " to the question, he might . 
 mean simply that he saw the accused at the time in question, 
 or saw him leaving his quarters, whereas his answer would be 
 quite properly construed as meaning that he not only saw him 
 at the time in question but also in the act of leaving his quarters, 
 and with a bundle, and also that the bundle was under his arm. 
 Such a question will never be permitted to be asked of a witness 
 at any time or under any circumstances. 
 
 (c) The following are exceptions to the rule that leading 
 questions will not be asked: 
 
 (1) Leading questions ma} 7 be asked on cross-examination. 
 
 (2) To abridge the proceedings, the witness may be led at 
 once to points 011 which he is to testify. The rule is there- 
 fore not applicable to that part of the examination of a wit- 
 ness which is purely introductory. For example, in a, deser- 
 tion case, a policeman, who apprehended the accused, may have 
 his attention directed at once to the occasion by such a ques- 
 tion as whether at a certain time and place he arrested the 
 accused, but it is improper to include in such a preliminary ques- 
 tion anything which may bear on the merits of the controversy, 
 as, e. g., that he arrested the accused as a deserter. (The grounds 
 of the arrest, if material, should be brought out by other not 
 leading questions, as, for example, "What did you say to the 
 accused when you arrested him?") The witness having an- 
 swered the question in the affirmative, in the next question he 
 might properly be asked to state the details connected with 
 the arrest. So a witness might properly be asked whether he 
 was present at a certain place where and time when the ac- 
 cused was placed in arrest by a certain officer (unless the fact 
 of the arrest be also disputed). The witness having answered 
 in the affirmative, he may be asked to state all the circum- 
 stances. 
 
 (3) When the witness appears to be hostile to the party 
 calling him or is manifestly unwilling to give evidence, the 
 court may, in its discretion, permit the party calling him to put 
 leading questions. 
 
 210 
 
COURTS-MAETIAL EVIDENCE. ^f 255 
 
 (4) When there is an erroneous statement in the testimony 
 of the witness, evidently caused by want of recollection, 
 which a suggestion may assist, as, for instance, where he mis- 
 states a date or an hour (provided, no attempt is made to get 
 him to change his mind, but only an opportunity offered to cor- 
 rect, if he desires, what appears manifestly to be a mere slip of 
 the tongue). 
 
 (5) Where, from the nature of the case, the mind of the 
 witness can not be directed to the subject of the inquiry with- 
 out a particular specification of it, as where he is called to 
 contradict another witness who has testified that the accused 
 made a certain statement on a certain occasion in the hearing 
 of a number of soldiers, each of them may be asked whether 
 he heard the accused make the statement. 
 
 The court, in its discretion, would be justified in allowing 
 liberal departures from the rule; but must always be careful, 
 in so doing (a) not to allow an untruthful witness an oppor- 
 tunity to reshape his testimony as he thinks counsel desires, or 
 the reverse, or to try to match it up with the testimony of other 
 witnesses, from suggestions he may gather during his examina- 
 tion, and (b) not to allow either the trial judge advocate or coun- 
 sel for the accused, on direct examination, to intimate to a wit- 
 ness that his testimony on a material point is wrong, or ought to 
 be changed (except within the limits of the rules above stated). 
 
 255. RECALLING or WITNESSES. Where a witness is re- 
 called to the witness stand he will not be sworn again, but will 
 be reminded that he has been sworn in the case and is still 
 under oath. A failure to so remind him, however, does not 
 affect the validity of the trial and will not be ground for re- 
 jecting the testimony. 
 
 SECTION VI. 
 CREDIBILITY OF WITNESSES. 
 
 256. WHAT CREDIBILITY CONSISTS IN. The credibility of 
 a witness is his worthiness of belief, and is determined by his 
 character, by the acuteness of his powers of observation, the 
 Mccuracy and retentiveness of his memory, by his general 
 manner is giving evidence, his relation to the matter in issue, 
 
 211 
 
If 257 CHAPTER XI. 
 
 his appearance and deportment, prejudices, by his general 
 reputation for truth and veracity in the community where he 
 lives, by comparison of his testimony with other statements 
 made by him out of court, by comparison of his testimony 
 with that of others, etc. From all these the court will draw 
 its own conclusions as to the credibilty of the witness, attach- 
 ing only such weight to his evidence as all the facts seem to 
 warrant. There may even be cases in which the court 
 will reject all the testimony of a witness. This may be for 
 any of the reasons set forth above. No statement will be 
 made by the court of the weight given to any testimony or 
 the amount rejected, except as it may desire to inform the 
 reviewing authority of the reasons which have led to its 
 findings. 
 
 257. PROOF OF CHARACTER BY GENERAL REPUTATION. 
 Where impeachment of a witness for bad character is under- 
 taken it must be limited to proof of his general reputation 
 for truth and veracity in the community in which he lives 
 or pursues his ordinary vocation. For a military man this 
 would mean the reputation that he bore amongst the mem- 
 bers of his regiment or company, or organization or command, 
 or amongst those stationed at a post, or, if stationed at or 
 near a town, amongst the residents of the town. Personal 
 opinion as to his character is not admissible, except that a 
 witness may, after testifying that he knows the reputation of the 
 person in question as to truth and veracity in the community in 
 which he so resides or pursues his ordinary avocation, and that 
 such reputation is bad, be further asked whether or not from his 
 knowledge of such reputation he would believe the person in 
 question on oath. 
 
 258. CONVICTION OF CRIME. Evidence of the conviction of 
 any crime, even by a foreign tribunal and whether felony or 
 misdemeanor, is admissible for the purpose of diminishing 
 the credit due to his testimony. (1 Greenleaf, sec. 376.) It 
 is allowable to ask a witness on cross-examination whether he 
 has ever been convicted of a crime, but if he denies it, proof 
 may only be made by copy of the record of his conviction. 
 
 258a. Corroborative Statements Identification of Accused. 
 In general, a witness gains no corroboration merely by repeat- 
 
 212 
 
COURTS-MAKTIAL EVIDENCE. ^f 259 
 
 ing his statements a number of times to the same effect. Hence, 
 similar statements made by a witness prior to the trial consistent 
 with his present testimony are in general not admissible to cor- 
 roborate him. But this is only a general rule, and there are some 
 situations in which such statements, having a real evidential 
 value, are admissible. For example, if a witness's testimony is 
 impeached on the ground of bias due to a quarrel with the ac- 
 cused, the fact that he made an assertion similar to his present 
 testimony before the date of the quarrel tends to show that his 
 present testimony is not due to bias. So, also, where his testi- 
 mony is sought to be impeached on the ground of collusion or 
 corruption, the circumstances of the case may show whether such 
 statements should be admissible as having such evidential value. 
 
 259. Contradiction by Other Witnesses. A witness may be im- 
 peached by calling other witnesses to contradict some part of his 
 testimony. How seriously this may affect his credibility is a mat- 
 ter to be determined by the tribunal upon weighing all the cir- 
 cumstances. Assuming that the tribunal believes the fact to be 
 as asserted by the contradicting witness, it does not follow that 
 the contradicted witness is to be wholly discredited ; his misstate- 
 ment may have been due to error of memory or observation on 
 that particular point, and not necessarily to deliberate falsehood; 
 and he may even have falsified on that particular point and still 
 be speaking the truth on other points. So that no general rule 
 can be laid down as to the effect to be given to a proved error on 
 one point; the court is to determine the credibility of the witness 
 on other points in the light of all the circumstances. 
 
 But this mode of impeachment by calling other witnesses to 
 contradict is subject to one important limitation, viz, the matter 
 upon which the contradiction is offered must not be a collateral 
 one. The object of this rule is to prevent the prolongation of 
 the trial and the confusion of the main issues by entering into 
 numerous controversies on minor matters which are not material 
 to the case and do not throw substantial light on the credibility 
 of the witnesses as to the main issues. Whether a matter is thus 
 " collateral " depends largely on the circumstances of each case. 
 For example, in a trial for escape, where a witness for the prose- 
 cution incidentally states that he had seen the accused and two 
 others, naming them, buying cigarettes at the post exchange at 4 
 
 213 
 
^f 260 CHAPTER XI. 
 
 p. m. the day before the alleged escape, contradiction as to the 
 purchase being of cigars and not cigarettes would ordinarily be 
 deemed collateral. 
 
 But if the case was one of conspiracy to escape, and the iden- 
 tity of one of the conspirators was in dispute, and a certain brand 
 of cigarettes was found in the possession of all three accused, then 
 presumably the contradiction as to the purchase being of cigars 
 and not cigarettes would cease to be collateral. The court's dis- 
 cretion must here be used to allow such liberality in construing 
 " collateral " as will best tend to reveal the credibility of the wit- 
 ness in all its aspects. 
 
 NOTE. By "collateral facts" is meant facts not material to any 
 issne in the case on trial. As to facts material to tlie issues in the 
 case, any contradictory statements made by the witness out of court 
 may be shown by the testimony of other witnesses. (See par. 282, 
 infra.) 
 
 260. Inconsistent Statements. A witness may be impeached 
 by showing that he has made elsewhere statements inconsistent 
 with his testimony on the stand. Such inconsistent statements 
 may be evidenced by asking the accused on cross examination to 
 state whether he made them, or by calling other witnesses who 
 will testify to them. 
 
 But if the proof is desired to be made in the second manner 
 mentioned, the following two limitations apply and must be 
 strictly observed: 
 
 (a) The matter to which the self -contradictory statement 
 refers must not be a collateral one : " collateral " here being con- 
 strued in the same sense as in paragraph 259, the same policy 
 being involved. 
 
 (b) While the witness desired to be impeached is on the stand 
 for cross-examination his attention must be called to the sup- 
 posed statement, by mention of the time, place, person addressed, 
 and subject, so that he may then and there have an opportunity 
 to deny it or to explain it, if he sees fit. For the purpose of thus 
 calling his attention, he may be recalled to the stand if he 
 had already left it. If the supposed statement is contained in 
 a writing, this also must be mentioned, and he may be asked 
 to identify his signature on it, and thus save calling another 
 witness to prove the signature. But it is not necessary in thus 
 calling his attention to a writing to show him the contents of 
 
 214 
 
COURTS-MARTIAL EVIDENCE. ^f 261 
 
 the writing or any part of it other than the signature. If he then 
 admits the signature, or if the signature is later proved hy 
 another witness, the writing is to be introduced at the proper 
 time later, when the cross-examiner is putting in his own case. 
 
 The witness may of course make any explanation he desires 
 as to the supposed statement, either on cross-examination when 
 his attention is called to it, or on recall for the purpose when 
 it has been evidenced by calling other witnesses. 
 
 261. PREJUDICE, BIAS, ETC. Prejudice, bias, relationship, 
 etc., may be shown to diminish the credibility of the witness, 
 either by the testimony of other witnesses or by cross-exami- 
 nation of the witness himself. Such matters are never re- 
 garded as collateral. 
 
 262. CREDIBILITY OF ACCUSED AS A WITNESS. If the ac- 
 cused testifies, his credibility as a witness may be attacked 
 on any of the grounds stated in the preceding paragraphs. 
 
 NOTE. If the contradictory statement was made in the course of 
 another trial, so much only of the testimony or record of such other 
 trial should be offered as shows the contradictory statement; it would 
 not ordinarily be proper to offer the whole record of that case. (C. M. 
 134184, Benson, June 25, 1919; C. M. 134*268, Shannahan, June 26, 
 1919.) 
 
 262^. IMPEACHMENT or ONE'S OWN WITNESS. The general 
 rule is that a party can not impeach his own witness. This 
 is subject to but few exceptions; as, where a party is com- 
 pelled to call a witness whom the law, or circumstances of the 
 case, make indispensable, or where a witness proves unexpect- 
 edly hostile in his testimony on the stand. In such excepted 
 cases the impeaching party must first show that the evidence 
 as given has taken him by surprise, and that the witness is 
 hostile. The witness may then be asked if he has made con- 
 tradictory statements out of court, the time, place, and cir- 
 cumstances of the statement being described to him in detail, 
 and upon his denial witnesses may be called in proof that ha 
 did make them. In order that one's own witness may be con- 
 tradicted, mere silence or ignorance on his part is not suffi- 
 cient. While a party taken by surprise may impeach his own 
 witness in the cases indicated, he is not permitted to attack his 
 reputation by showing that his general character is bad. 
 
 215 
 
^[ 263" CHAPTER XI. 
 
 SECTION VII. 
 DEPOSITIONS AND FORMER TESTIMONY. 
 
 263. DEPOSITIONS ADMISSIBLE. Depositions taken under 
 the provisions of A. W. 25 and 26 " may be read in evidence 
 before any military court or commission in any case not capi- 
 tal, or in any proceeding before a court of inquiry or military 
 board." (A. W. 25.) 
 
 NOTE. A case referred to a special court-martial for trial under 
 the second proviso of A. W. 12 is not "a capital case " within the 
 meaning of this paragraph or of A. W. 25, since the special court- 
 martial has no power to impose the death penalty. 
 
 264. DEPOSITIONS FOR DEFENSE IN CAPITAL CASES. Depo- 
 sition testimony may be adduced for the defense in capital 
 cases. (A. W. 25.) Where the defense calls for such testi- 
 mony in capital cases the witnesses may be cross-examined 
 as fully as witnesses in a case not capital. 
 
 265. OBJECTIONS AS TO COMPETENCY OF WITNESS AND AD- 
 MISSIBILITY OF EVIDENCE. The same rules as to competency 
 of witnesses and admissibility of evidence apply in the taking 
 of evidence by deposition that apply in the examination of a 
 witness before the court, except that a wider latitude than 
 usual should be allowed as to leading questions. 
 
 If the interrogatories and cross-interrogatories for deposi- 
 tions are prepared for acceptance by the court, in open ses- 
 sion, objection to the competency of the deponent, if grounds 
 of objection are known at the time, as well as objections to 
 questions, should be raised at such session, and ordinarily be 
 passed upon by the court at that time. The court should, 
 however, in the interests of justice, entertain such objections 
 when the depositions are offered in evidence, but might in a 
 proper case call upon the trial judge advocate or counsel for 
 explanation as to why they had failed to make the objection 
 at the proper time. 
 
 If the interrogatories and cross-interrogatories are agreed 
 upon by both parties in advance of the assembling of the 
 court and this is the usual practice objections to questions 
 and to the admissibility of evidence will be made when the 
 depositions are offered in evidence. 
 
 216 
 
COURTS-M MJTIAL EVIDENCE. ^f 266 
 
 2G6. EXAMINATION OF DEPOSITION BY COUNSEL. Upon re- 
 ceipt of the deposition the trial judge advocate will advise 
 the accused or his counsel of that fact and will give them an 
 opportunity to examine the deposition before the trial. 
 
 267. READING OF DEPOSITIONS. Ordinarily depositions will 
 be read to the court by the party in whose behalf they are 
 taken, but if the accused is not represented by counsel the 
 trial judge advocate will read to the court the deposition 
 taken on his behalf, unless the accused requests to read them, 
 or does not desire to offer them. (See par. 268, infra.) After 
 being read to the court a deposition will be properly marked 
 for identification purposes and attached to the record, and 
 the record will show that it has been introduced and read to 
 the court. 
 
 268. MISCELLANEOUS PROVISIONS AS TO DEPOSITIONS. The 
 party at whose instance a deposition has been taken is not 
 required to offer it, unless he sees fit to do so. If the party at 
 whose instance a deposition has been taken decides not to 
 put it in, the opposite party may (subject to the general rules 
 as to competency, materiality, and relevancy of evidence) offer 
 in evidence either the whole or any competent or relevant part 
 of it which is not clearly fragmentary and misleading, as lie 
 may see fit, and in such case the party on whose behalf it was 
 taken may put in evidence any other like part. 
 
 The trial judge advocate should not be permitted (except as 
 stated in the last clause of the preceding sentence) to introduce 
 only such parts of a deposition taken at his instance as are 
 favorable to him or as he may elect to use; he must offer such 
 a deposition in evidence as a whole or not offer it at all; the 
 accused, however, will be permitted to offer either the whole of 
 a deposition taken on his behalf or any competent or relevant 
 part of it which is not clearly fragmentary and misleading, as 
 he may see fit, and in such case the trial judge advocate may put 
 in evidence any other like part. The court may direct either 
 the whole or any competent part of a deposition, not clearly 
 fragmentary and misleading, if not offered in evidence by either 
 party, to be read as evidence for the court and not on behalf 
 of either party, and in such case either party may offer and put 
 in evidence any other like part or parts. 
 
 217 
 
^f 269 CHAPTER XI. 
 
 NOTE. "Upon the reading of a deposition or any part of it offered in 
 evidence by either party, or on behalf of the court, under any of the 
 provisions of this paragraph, any question or answer or exhibit or 
 any part thereof, which may not be properly admissible under the 
 general rules of evidence, may be omitted, or ordered suppressed and 
 disregarded either upon the motion or the objection of the party offer- 
 ing it, or of the opposite party, or of any member of the court. 
 
 269. AFFIDAVITS NOT ADMISSIBLE. Affidavits taken with- 
 out notice and not as depositions under the provisions of A. 
 W. 25 and 26 are in no case admissible as evidence unless ex- 
 pressly consented to by the trial judge advocate and the 
 accused with full knowledge of his rights. 
 
 270. CERTIFICATE OF DISCHARGE. The " certificate of dis- 
 charge " may be used by the defense, either before or after 
 the findings, for proof of good character. 
 
 271. STATEMENT OF SERVICE. The statement of service of 
 the accused, as found on the front page of the charge sheet, 
 will not be permitted to be seen or examined by members of 
 the general or special court-martial trying him until after 
 they have reached their findings. In the event of conviction 
 the accused will be asked whether such statement of service 
 is correct, and such statement will be examined and con- 
 sidered by the court, together with the evidence of previous 
 convictions of the accused, if any, for the purpose of deter- 
 mining proper punishment in view of length of service. 
 (See pars. 306 and 307 infra.) 
 
 The statement of service may, nevertheless, be used by the 
 defense, either before or after the findings, for proof of good 
 character. 
 
 272. FORMER TESTIMONY BEFORE COURT OF INQUIRY. The 
 record of the proceedings of a court of inquiry may, with the 
 consent of the accused, be read in evidence before any court- 
 martial or military commission in any case not capital nor 
 extending to the dismissal of an officer, and may also be read 
 in evidence in any proceeding before a court of inquiry or 
 a military board: Provided, That such evidence may be 
 adduced by the defense in capital cases or cases extending to 
 the dismissal of an officer. (A. W. 27.) 
 
 The same tests of admissibility laid down in paragraph 275, 
 infra, as to examination and cross-examination on the same 
 
 218 
 
COURTS-MARTIAL EVIDENCE. ^f 273 
 
 issues, and as to correctness and completeness of the record, 
 where former testimony before civil courts and courts- 
 martial is offered, will be applied where a record of a court 
 of inquiry is offered. 
 
 NOTE. "Any Case Not Capital nor Extending to the Dismissal of 
 an Officer." No case referred to a special court-martial for trial under 
 the provisions of the second proviso to A. W. 12 as amended by the 
 code of 1920 is within the meaning of this phrase as used ia. this para- 
 graph, since the special court-martial has no power either to impose 
 a death sentence or to sentence an officer to dismissal. 
 
 273. EVIDENCE OF PARDON. When a special plea in bar of 
 trial, based on a pardon, is offered by the defense, the best 
 evidence of such pardon, if in the nature of an individual 
 pardon, will be the document signed by the President him- 
 self, and, if in the nature of a general amnesty, by an official 
 copy of the proclamation or order publishing such amnesty. 
 If such document or order is not sufficiently explicit to de- 
 termine whether or not the offense for which the accused is 
 on trial is the same as that covered by the pardon, then other 
 evidence must be introduced to fill the gap. Where the par- 
 don is in the nature of a constructive pardon, the evidence 
 will be of such facts and circumstances as it is contended 
 constitute such pardon. 
 
 274. EVIDENCE OF FORMER TRIAL BY COURT-MARTIAL OR 
 CIVIL COURT. Where a plea in bar of trial, based on a former 
 trial by court-martial for the same offense and conviction 
 or acquittal of the same, is offered for the defense the best 
 evidence of such conviction or acquittal will be the order of 
 the reviewing authority publishing the case. Where such 
 order is not sufficiently explicit to determine whether or not 
 the offense for which the accused is on trial is the same as 
 that the conviction or acquittal of which he pleads in bar, 
 then the original court-martial record should be offered in 
 evidence. 
 
 Where a plea in bar is on a former trial and conviction or 
 acquittal by a Federal court the action of a State or any 
 other than a Federal court does not operate as a bar to second 
 trial the best evidence of such conviction or acquittal will 
 be a duly certified copy of the indictment and findings and 
 conviction or acquittal, given by the public officer whose duty 
 it is to keep the original. 
 
 219 
 
"ft 275 CHAPTER XI. 
 
 275. Former testimony in civil courts and courts-martial. 
 Where a witness, who has testified in either a Federal or 
 State court at a former trial of the same person, on the same 
 issues raised in the case on trial, and was fully examined and 
 cross-examined, is dead or is beyond reach of the process of 
 the court and his personal attendance can not be secured, 
 then the stenographic report of his testimony, if proven to 
 be correct and complete by the person by whom it was re- 
 ported, will be admissible and may very properly be accorded 
 the same weight as a deposition duly taken on notice. (Ey. 
 Co. v. Myers, 80 Fed. Rep., 361, 365.) Ordinarily, however, 
 this situation should be met by the trial judge advocate and 
 counsel for accused procuring in advance of trial a transcript 
 of the stenographer's notes, duly sworn to by him as correct 
 and complete, and submitting it to the opposite party for 
 his inspection. If acknowledged to be correct and complete, 
 then such transcript will be received in evidence. 
 
 Where the testimony desired is of a witness who had testi- 
 fied in a former trial by court-martial, all conditions being 
 approximately the same as those cited in the first paragraph 
 of this section, so much of the original court-martial record 
 itself as contains the desired testimony may be read in evi- 
 dence, subject in all cases to the provisions of paragraph 377a 
 infra, and the stenographic reporter will only be called 
 where a question is raised as to the correctness or complete- 
 ness of the recorded testimony. 
 
 SECTION VIII. 
 PRESUMPTION. 
 
 276. PRESUMPTIONS. Presumptions constitute a large part 
 of the law of evidence. They are of two kinds presumptions 
 of law and presumptions of fact. 
 
 277. PRESUMPTIONS OF LAW. Broadly speaking, a pre- 
 sumption of law is a rule of law that when certain circum- 
 stances exist the court must presume certain other circum- 
 stances. Presumptions of law are divided into conclusive 
 and disputable presumptions. In case of a conclusive pre- 
 
 220 
 
COURTS-MARTIAL EVIDENCE. If 278 
 
 sumption of law the presumption can not be contradicted. 
 For example, all residents of a country are conclusively pre- 
 sumed to know its laws. This presumption is in force in the 
 practice of courts-martial so far as concerns offenses that con- 
 stitute civil crimes. (As to the modification of the rule as 
 regards knowledge of the Articles of War in case of re- 
 cruits, see par. 282 ; as to intent, par. 281 ; as to ignorance of 
 law, par. 282.) In case of a disputable presumption of law, 
 the presumption can be contradicted. For example, it is pre- 
 sumed that a sane person intends the natural and probable 
 consequences of his acts ; a person is presumed to be innocent 
 until proven guilty ; all persons are presumed to be sane ; per- 
 sons acting as public officers are presumed to be legally in 
 office and to properly perform their duties; and malice is 
 presumed from the use of a deadly weapon. Evidence may 
 be introduced to rebut such presumptions. 
 
 278. PRESUMPTIONS OF FACT. Presumptions of fact are 
 nothing more than logical inferences, from facts already 
 proved, as to the existence of other facts. This kind of a pre- 
 sumption is not made as a rule of law but as a matter of 
 human reason. All evidence in a case, except that which di- 
 rectly proves the allegations in the specifications, leads at 
 once to presumptions of fact. Such presumptions are the 
 basis of all circumstantial evidence. (See pars. 203 and 204.) 
 It is in making such presumptions that the members of the 
 court should especially exercise their common sense and their 
 knowledge of human nature and the ways of the world. 
 Facts in evidence showing a motive or absence of motive on 
 the part of the accused, preparations, or the absence of prep- 
 arations for the commission of crime, a failure to account for 
 suspicious circumstances, acts showing a criminal conscious- 
 ness (as concealment, disguise, or flight), the suppression of 
 evidence, the possession of weapons or instruments that 
 might have been used in the commission of the offense, the 
 possession soon after larceny or embezzlement of the articles 
 stolen or embezzled, are a proper basis for presumptions of 
 fact. 
 
 Also where the existence at one time of a certain condition 
 or state of things of a continuing nature is shown, the general 
 
 221 
 
^[ 279 CHAPTER XI. 
 
 presumption arises that such condition or state continues to 
 exist, until the contrary is shown, so long as is usual with con- 
 ditions or things of that particular nature. For example, 
 there is a presumption of continuance as to one's residence, 
 until a change is shown, also that one holding an office con- 
 tinues to hold it until the end of the term for which appointed 
 or elected and that personal habits have not changed. There 
 is a presumption of fact from the regular course of business 
 in the Post Office Department that a letter when properly 
 deposited in a post-office box or in the place in which letters 
 for mailing are usually deposited, postage prepaid, is received 
 by the addressee. The presumption with regard to the de- 
 livery of letters duly posted has been extended and applied 
 to the delivery of telegrams deposited with a telegraph com- 
 pany for transmission; but delivery of the message to the 
 telegraph company must of course be shown. There is also 
 a presumption of fact that persons of the same name are the 
 same person. The strength of this presumption will of 
 course depend upon how common the name is and other cir- 
 cumstances. 
 
 279. PRIMA FACIE EVIDENCE. Prima facie evidence is that 
 which suffices for the proof of a particular fact until con- 
 tradicted and overcome by other evidence. In other words, 
 prima facie evidence justifies the court in finding the facts 
 presumed, but in view of the doctrine of reasonable doubt that 
 always inures to the benefit of the accused from a considera- 
 tion of all of the evidence presented the court is not required 
 to find the facts presumed. The court may decide, for in- 
 stance, that the prima facie evidence presented does not 
 outweigh the presumption of innocence. 
 
 280. INTENT IN CONNECTION WITH CROIES. In respect to 
 the element of intent, crimes are distinguished as follows: 
 Those in which a distinct and specific intent, independent of 
 the mere act, is essential to constitute the offense, as murder, 
 larceny, burglary, desertion, and mutiny; and those in 
 which the act is the principal feature, the existence of the 
 wrongful intent being simply inferable therefrom, as rape, 
 perjury, sleeping on post, drunkenness on duty, neglect of 
 duty. In cases of the former class the characteristic intent 
 
 222 
 
COURTS-MARTIAL EVIDENCE. IF 281 
 
 must be established affirmatively as a separate fact; in the 
 latter class of ases it is only necessary to prove the unlawful 
 act, for every man is presumed in law to have intended to do 
 what he actually does, and the burden of proof is upon him 
 to show the contrary. (Winthrop, p. 475.) 
 
 281. INTENT IN MILITARY CASES. Military offenses being 
 created by statute, the peculiar statutory intent described in 
 the article, if there be one, must be alleged in the specification. 
 The enlistments prohibited in A. W. 54, for example, must 
 have been knowingly made in order to constitute an of- 
 fense under the statute. It is similarly essential to some of 
 the offenses described in A. W. 55, 56, and 57 that they be 
 knowingly committed; offenses under A. W. 83 and 84 
 must have been committed "willfully " or " through neglect" ; 
 an officer quitting his post on tender of resignation must do so 
 " with intent to absent himself permanently therefrom " to be 
 triable for the offense described in A W. 28 ; and an officer 
 who refuses or " willfully neglects " to deliver an offender to 
 the civil authorities upon application duly made by such au- 
 thorities subjects himself by such refusal or willful neglect 
 to the penalties set forth in A. W. 74. (Davis, 642.) 
 
 In some instances, however, as in the offenses described in 
 A. W. 61 and 86, no statutory intent is set forth in the article, 
 and none need be alleged in the specifications. 
 
 In still other cases, while no intent is expressed in the 
 article, a particular intent is, nevertheless, implied, and is, 
 therefore, an essential element of the offense, and though not 
 required to be alleged in the specification, must be established 
 in evidence. Such is the case with respect to the offense 
 of desertion, the requisite intent being either not to return, 
 to avoid hazardous duty, or to shirk important service. 
 
 But whether the intent is that presumed from the com- 
 mission of an unlawful act or is the specific one express or 
 implied in the article in either ca&e the prosecution must prove 
 such actual intent. If the evidence does not substantiate such 
 intent, the accused must be acquitted, or the grade of the 
 offense reduced, as, for instance, from assault with intent to 
 kill, to assault. (See also pars. 74b, 158a, and 158b, supra.) 
 
^j 282 CHAPTER XI. 
 
 282. IGNORANCE OF LAW. Every person is usually pre- 
 sumed to know the provisions of Federal, State, and munici- 
 pal law applicable to the community in which he lives, and a 
 person subject to military law is presumed, in addition 
 thereto, to know the statute law, as particularly applicable 
 to the Army, as well as Army regulations, the different manu- 
 als, orders, and circulars issued for the information and 
 government of the Army. This really means that on grounds 
 of public policy a person is responsible whether he knows the 
 law or not. His ignorance is immaterial. 
 
 An exception may sometimes be made where enlisted men 
 are charged with the knowledge of the Articles of War. This 
 exception would be based primarily upon the fact that A. W. 
 110 makes it one of the features of enlistments into the mili- 
 tary service that certain of the " Articles of War shall be read 
 to every enlisted man at the time of, or within six days after, 
 his enlistment." A. W. 109 enjoins that he shall take an en- 
 listment oath in which, among other things, he swears that 
 he will observe and obey military orders " according to the 
 ules and Articles of War." While in the case of an old or 
 reenlisted soldier, or one who had been for a considerable 
 period in the service and had had a sufficient opportunity to 
 inform himself as to the provisions of the code, a failure to 
 have complied with the injunction of this article could 
 scarcely constitute a defense, such failure might perhaps nave 
 this effect, or should usually at least act as an extenuation in 
 the case of a recruit, especially one imperfectly acquainted 
 with the English language. In such a case it would cer- 
 tainly be admissible for the accused to show the fact, and if 
 the offense charged was one of the criminality of which he 
 could not, in his ignorance of military law, have been aware, 
 or the gravity of which he could not have appreciated, the 
 omission of the reading of the articles upon his enlistment 
 would properly be regarded by the court, if not as a defense, 
 certainly as a palliation of his misconduct. (Winthrop, 
 p. 438.) 
 
 283. IGNORANCE OF FACT. It is generally laid down that 
 ignorance of fact excuses crime. But this must be an honest 
 or innocent ignorance and not an ignorance which is the result 
 
 224 
 
COURTS-MARTIAL EVIDENCE. If 284 
 
 of carelessness or fault. The theory, of course, is that where 
 a bona fide ignorance of fact exists there would be an absence 
 of the requisite wrongful intent. The general rule applies 
 equally to military cases, and the ignorance, to constitute a 
 defense therein, must appear not to have proceeded from any 
 want of vigilance, or from failure to make the inquiries or 
 obtain the information reasonably called for by the obliga- 
 tions and usages of the service. Thus a soldier who neglects 
 to report for guard or other duty because ignorant of the fact 
 that he has been duly detailed therefor is not guilty of a 
 breach of A. W. 61 unless his ignorance is a result of his own 
 neglect or wrongdoing (Winthrop, p. 436) ; and if the soldier 
 should disobey an order given to him by an officer in civilian 
 clothing without the officer having first stated to the soldier 
 that he was an officer, where the soldier did not know that he 
 was an officer-nor have reason to believe that he was an officer, 
 then his ignorance would be an excuse for his act of disobedi- 
 ence which might otherwise have been a very serious offense. 
 Of course, a soldier is presumed it is his duty to know the 
 officers of his command where reasonable time and oppor- 
 tunity after joining the command are shown to have existed 
 for this purpose. 
 
 NOTE. See Insanity of accused, paragraph 219. 
 
 284. EVIDENCE OF DESERTION. Absence without leave is 
 usually proved by the evidence of an officer or noncommis- 
 sioned officer of the company of the accused to the effect that 
 he was absent from his organization without authority for a 
 certain period, but if such witnesses are not available it may 
 be proved by the entries on the morning reports. In making 
 the latter kind of proof, that portion of the morning report 
 (or reports) relating to the accused, or a copy of it certified 
 by the officer having official custody thereof, showing the 
 accused was absent without leave, beginning a certain date, 
 and (if such is the case) was dropped as a deserter, should 
 be attached to the proceedings as an exhibit. But the morn- 
 ing report, even though it refers to the accused as a " de- 
 serter," is not complete evidence of desertion; it is evidence 
 only of absence without leave, and it is still necessary for the 
 trial judge advocate to prove an intent to remain perina- 
 
 21358 20 15 
 
 225 
 
^[284 CHAPTER XI. 
 
 nently absent, or else to avoid hazardous duty or to shirk im- 
 portant service (A. W. 28) ; that is, to desert. 
 
 The condition of absence without leave having once been 
 shown to exist will be presumed to continue in the absence of 
 evidence to the contrary until the accused came again under 
 military control. It is therefore necessary to prove only that 
 the accused went absent without leave a certain date and 
 came under military control a certain date. During the inter- 
 mediate time it is presumed he was absent without leave. 
 
 If the condition of absence without leave is much pro- 
 longed, and there is no satisfactory explanation of it, the 
 court may be justified in presuming from that alone an intent 
 to remain permanently absent. The presumption of such 
 intent will be strengthened by such circumstances as that 
 the accused attempted to dispose of his uniform or other 
 property ; that substantially all his clothes were missing from 
 his locker when his absence was discovered; that his civilian 
 clothes were missing; that he attempted to board a train 
 that took him away from his station; that he purchased a 
 ticket for a distant point or was arrested or surrendered at 
 a considerable distance from his station; that while absent 
 he was in the neighborhood of military posts and did not 
 surrender to the military authorities ; that he was dissatisfied 
 in his company or with the military service; that he had 
 made remarks indicating an intention to desert the service; 
 that he was under charges or had escaped from confinement 
 at the time he absented himself; that just previous to ab- 
 senting himself he stole or took without authority money, 
 civilian clothes, or other property that would assist him in 
 getting away, etc. 
 
 On the other hand, such incidents are not always incon- 
 sistent with a guilt of mere absence without leave. They 
 should be carefully weighed by the court. Previous excellent 
 and long service, the fact that none of the property of the ac- 
 cused was missing from his locker, and the fact that he was 
 under the influence of intoxicating liquor or drugs when he 
 absented himself, and that he continued for some time under 
 their influence, etc., are incidents going to show there was 
 not an intent to remain permanently absent. 
 
 226 
 
COURTS-MAETIAL EVIDENCE. ^f 284 
 
 NOTE. Where, to a charge of desertion, accused files a plea deny- 
 ing desertion but admitting absence without leave, and pleading, by 
 exception and substitution, not guilty of violation of the fifty-eighth 
 article of -war, but guilty of violation of the sixty-first article of war, 
 such plea of guilty is net in itself sufficient basis for a conviction of 
 desertion, no matter how long the absence without leave thereby 
 admitted; since the plea, which mast be taken as a whole, expressly 
 negatives the intent to desert. In case of such a plea the court should 
 receive evidence of the facts and circumstances and determine from 
 the evidence before it, as upon a plea of not guilty, whether or not 
 the accused is in fact guilty of desertion or nly of the lesser included 
 offense of absence without leave. 
 
 The fact that a reward has been paid for the apprehension 
 of the accused as a deserter neither proves nor disproves an 
 intent to desert, and is not admissible in evidence on that issue. 
 
 So also the opinions of witnesses as to whether the accused 
 intended to desert and statements from them that the ac- 
 cused is a " deserter " or " deserted " are not only incompetent, 
 but are valueless for any purpose to prove desertion. 
 
 (a) Statutw^y Rules of Evidence. (1) A. W. 8 provides 
 that it shall be sufficient proof of the offense of desertion by 
 an officer that, having tendered his resignation and prior to 
 due notice of the acceptance of the same, he quits his post or 
 proper duties without leave and with intent to absent himself 
 permanently therefrom. 
 
 (2) And similarly in the case of a soldier, A. W. 28 pro- 
 vides that it shall be sufficient proof of desertion in his case 
 when it is proved that, without having first received a regu- 
 lar discharge, he again enlists in the Army or in the militia 
 when in the service of the United States, or in the Navy or 
 Marine Corps of the United States, or in any foreign army, 
 and shall, further, be proof of fraudulent enlistment where 
 the enlistment is in one of the forces of the United States 
 mentioned above. 
 
 (3) And also, in case of any person subject to military law, 
 A. W. 28 provides that it shall be sufficient proof of desertion 
 when the evidence siiows he quit his organization or place of 
 duty with the intent to avoid hazardous duty or to shirk im- 
 portant service. 
 
 170TE. Subparagraphs "(1)" and "(2)" supra, do not apply to (1) 
 warrant officers, (2) members of the Army Nurse Corps, (3) Army field 
 clerks, nor (4) field clerks, Quartermaster Corps. 
 
 227 
 
^f 285 CHAPTER XI. 
 
 285. DRUNKENNESS AS SHOWING ABSENCE or INTENT. It 
 is a general rule of law that voluntary drunkenness is not an 
 excuse for crime committed in that condition. But the ques- 
 tion whether or not the accused was drunk at the time of the 
 commission of the criminal act may be material as going to 
 indicate what species or kind of offense was actually com- 
 mitted. Thus, there are crimes which can be consummated 
 only where a peculiar and distinctive intent or a conscious 
 deliberation or premeditation has concurred with the act 
 which could not well be possessed or entertained by an intoxi- 
 cated person. In such cases evidence of the drunken condi- 
 tion of the party at the time of the commission of the alleged 
 crime is held admissible, not to excuse or extenuate the act as 
 such, but to aid in determining whether, in view of the state 
 of his mind, such act amounted to the specific crime charged 
 or which of two or more crimes similar but distinguished in 
 degree it really was in law. Thus, in cases of such offenses as 
 larceny, robbery, burglary, and passing counterfeit money, 
 which require for their commission a certain specific intent, 
 evidence of drunkenness is admissible as indicating whether 
 the offender was capable of entertaining this intent or 
 whether his act was anything more than a mere battery, 
 trespass, or mistake. So, upon an indictment for murder, 
 testimony as to the drunkenness of the accused at the time of 
 the killing may ordinarily be admitted as indicating a mental 
 excitement, confusion, or unconsciousness incompatible under 
 the circumstances of the case with premeditation or a deliber- 
 ate intent to take life and as reducing the crime to the grade 
 of manslaughter. On the other hand, where, to constitute the 
 legal crime, there is required no peculiar intent no wrongful 
 intent other than that inferable from the act itself as in 
 cases of assault and battery, rape, or arson, evidence that the 
 offender was intoxicated would, strictly, not be admissible in 
 defense. (Winthrop, p. 440.) 
 
 Where drunkenness is pleaded as an excuse for crime such 
 excuse should be received with caution. Drunkenness is 
 easily simulated. It is sometimes resorted to for the purpose 
 of stimulating the nerves to the point of committing the act. 
 Where premeditation and intent first exist, followed by vol- 
 
 228 
 
COURTS-MARTIAL EVIDENCE. ^f 286 
 
 untary drunkenness and the commission of the crime during 
 such state of drunkenness, the necessary intent to commit the 
 crime will be presumed, whatever the state of drunkenness 
 at the time of its commission may have been. 
 
 286. DRUNKENNESS IN MILITARY CASES. In military cases, 
 evidence of drunkenness of the accused, as indicating his 
 state of mind at the time of the alleged offense, whether it 
 may be considered as properly affecting the issue to be tried, 
 or only the measure of punishment to be adjudged in the 
 event of conviction, is in practice always admitted in evi- 
 dence. And where a certain knowledge or a deliberate pur- 
 pose or specific intent is necessary to constitute the offense, 
 as in cases of violations of A. W. 63 or A. W. 64, or of deser- 
 tion, mutiny, or cowardice, or of fraud in violation of A. W. 
 94, the drunkenness, if clearly shown in evidence to have 
 been such as to have incapacitated the accused from having 
 that knowledge or entertaining that purpose or intent, as, for 
 example, in cases under A. W. 63 or A. W. 64 from recognizing 
 his superior officer to be such, or from entertaining the specific 
 intent to disobey a lawful command, will ordinarily be treated 
 as constituting a legal defense to the specific act charged. 
 
 In such cases, however, if the drunken act has involved a 
 disorder or neglect of duty prejudicial to good order and 
 military discipline, the accused may be convicted of that 
 offense under A. W. 96. (Winthrop, p. 441.) 
 
 " It is to be noted that drunkenness, to be admitted in evidence 
 or to constitute a defense, need not be caused by indulgence in 
 spirituous liquors, but may, with the same effect, result from the 
 voluntary excessive use of an intoxicating drug." (Winthrop, 
 pp. 441-442.) 
 
 287. PROOF or DRUNKENNESS. Upon a trial for drunken- 
 ness it is not essential to confine the testimony to a description 
 of the conduct and demeanor of the accused, but it is ad- 
 missible to ask a witness directly if the accused " was drunk," 
 or for a witness to state that the accused " was drunk," on the 
 occasion or under the circumstances charged. Such a state- 
 ment is not viewed by the authorities as of the class of ex- 
 pressions of opinion which are properly ruled out on objec- 
 tion unless given by experts, but as a mere statement of a 
 
 229 
 
^[288 CHAPTER XI. 
 
 matter of observation, palpable to persons in general, and 
 so, proper to be given by any witness as a fact in his know- 
 ledge. It is preferable that all witnesses introduced to prove 
 drunkenness should describe the conduct and demeanor of 
 the accused in addition to giving their opinion as to whether 
 the accused was drunk, but in every ease the witness will also 
 be asked the direct question whether the accused was or was not 
 drunk. 
 
 288. REASONABLE DOUBT AND BURDEN OF PROOF. In order 
 to convict, the court must be satisfied, beyond a reasonable 
 doubt, that the accused is guilty as charged. 
 
 By "reasonable doubt" is intended not fanciful or in- 
 genious doubt or conjecture but substantial, honest, consci- 
 entious doubt suggested by the material evidence in the case. 
 It is an honest, substantial misgiving, generated by insuffi- 
 ciency of proof. It is not a captious doubt, nor a doubt sug- 
 gested by the ingenuity of counsel or court and unwarranted 
 by the testimony ; nor is it a doubt born of a merciful inclina- 
 tion to permit the defendant to escape conviction, nor 
 prompted by sympathy for him or those connected with him. 
 The meaning of the rule is that the proof must be such as to 
 exclude not every hypothesis or possibility of innocence but 
 any fair and rational hypothesis except that of guilt ; what is 
 required being not an absolute or mathematical but a moral 
 certainty. A court-martial which acquits because, upon the 
 evidence, tke accused may possibly be innocent falls as far 
 short of appreciating the proper amount of proof required in 
 a criminal trial as does a court which convicts because the 
 accused is probably guilty. (Winthrop, p. 476.) 
 
 In trials before courts-martial the prosecution has upon it 
 the burden of proving the guilt of the accused beyond a 
 reasonable doubt, and, whatever the defense of the accused 
 may be, this burden never changes. After the evidence is 
 all in the court must be convinced beyond a reasonable doubt 
 of every element necessary to constitute the offense in order 
 to justify it in convicting the accused of the offense charged. 
 
 In collateral issues arising in the course of the trial as to 
 the competency of witnesses, the admissibility of testimony, 
 and the like, the burden of proof rests upon the party who 
 
 230 
 
COURTS-MARTIAL EVIDENCE. ^ 289 
 
 alleges incompetency or objects to the admission of particu- 
 lar testimony. (Davis, p. 267.) 
 
 SECTION IX. 
 JUDICIAL NOTICE. 
 
 289. JUDICIAL NOTICE. Certain kinds of facts do not need 
 to be evidenced by the parties, because the court is empowered 
 to recognize the existence of the facts without any formal offer 
 of evidence. This recognition of the facts by the court, dispensing 
 with the introduction of evidence thereon, is termed "Judicial 
 notice." 
 
 1. In general, the matters to which the principle applies are 
 of three sorts, viz, matters which a court is officially bound to 
 know as a part of its own special duty and function; matters 
 which are so notorious in common knowledge of all intelligent 
 persons that a requirement of evidence thereon would be super- 
 fluous; matters which are so easily ascertainable in authentic 
 form that the court may readily inform itself by reference to 
 some accessible and authentic source of information. Of the first 
 sort, an example is the law itself, of which the court naturally 
 requires no proof. Of the second sort, an example would be the 
 fact that the Philippine Islands are located in the tropics. Of 
 the third sort, an example would be the date of the adoption of 
 the United States Constitution, or the name of the present incum- 
 bent of the post of United States ambassador to Italy, either of 
 which could be ascertained by consulting a reliable book of refer- 
 ence. 
 
 2. The principal matters upon which the court may thus be 
 asked to take judicial notice may be listed as follows : 
 
 (1) The Constitution, treaties, and other general laws of 
 the United States; the law of nations; the common law; 
 the laws of the State in which the court is sitting. 
 
 (2) The great seal of the United States, and those of the 
 several States; the seals of all Federal and State courts of 
 record; the seal of a notary public. 
 
 (3) The ordinary divisions of time, as to years, months, 
 weeks, days, and hours ; general facts and laws of nature^ in- 
 
 231 
 
^289 CHAPTER XI. 
 
 eluding their ordinary operations and effects; and general 
 facts of American history and world history. 
 
 (4) The political organization of the Government of the 
 United States and of the several States, and their chief offi- 
 cials; and current political conditions of war and peace. 
 
 (5) The organization of the Army, including the statutes 
 and regulations relating thereto, the bulletins or circulars 
 of the War Department, the Army Regulations, the provi- 
 sions of this Manual and of the several other official man- 
 uals, the existence and location of military departments or 
 corps areas, reservations, posts, and stations of troops, as 
 published to the Army ; the fact that an officer belongs to a 
 certain organization, etc. 
 
 (6) General and special orders of the War Department; 
 general court-martial orders ; general and special orders and 
 bulletins and circulars of the department or corps area, or 
 other command in which the court is sitting; special and 
 summary courts taking notice of the orders, bulletins and 
 circulars of the commander appointing them and of all higher 
 authority. 
 
 (7) Price of articles furnished by the Government when 
 published to the Army in orders, bulletins, or price lists. 
 
 3. The principle of judicial notice does not require the court to 
 take notice of all such matters of the above sorts, but authorizes 
 the court to do so. When in a specific case the court is not en- 
 tirely satisfied as to the precise tenor of the fact to be noticed, it 
 therefore may satisfy its mind by resort to any authentic and 
 available source of information, such as a book of statutes or 
 regulations, a collection of general or special orders or bulletins, 
 a dictionary, a standard work of history, or the like. This resort 
 to authentic sources enables the court, in using the principle of 
 judicial notice, to satisfy itself completely, where otherwise it 
 might feel disinclined to notice the fact. For example, where the 
 terms of a general order of a department are material, the court, 
 though not having actually in mind the precise terms of the 
 order, will send for and refer to the published order and thus 
 take judicial notice of its terms. So also where a special order of 
 the post or other command in which the court is sitting is mate- 
 rial, the court may secure from the files of the adjutant the orig- 
 
 232 
 
COUKTS-MARTIAL EVIDENCE. ^f 289 
 
 inal order, though not published, and satisfy itself of the exact 
 terms, On this principle the court may enable itself to take ju- 
 dicial notice of numerous facts, within the above classes, on 
 which it does not have any actual knowledge until it has re- 
 sorted to a suitable authentic source of information. 
 
 The general principle underlying the foregoing instances is 
 that the court is authorized in these general classes of matters to 
 take judicial notice, but that it is not required to do so in a spe- 
 cific instance where its mind is actually in doubt as to the pre- 
 cise terms of the fact; and that in such a case it is at liberty to 
 resort to an authentic source of information for the purpose of 
 removing its doubt and of taking judicial notice. Where, for 
 example, a general order is material, and no authentic source of 
 information happens to be accessible, the court is not required to 
 notice what it actually does not know and can not ascertain. On 
 the other hand, where a special order of a post command is mate- 
 rial, and some adequate source of information is available, such 
 order may be judicially noticed, even though the order may not 
 have been published in printed form so as to be available to the 
 command at large. 
 
 In all these cases the trial judge advocate and defense counsel 
 should endeavor to provide, ready at the trial, such authentic 
 sources as the court may have occasion to refer to. 
 
 233 
 
CHAPTER XIL 
 
 COURTS-MARTIALCONCLUDING INCIDENTS OF 
 THE TRIAL. 
 
 Section I: Statements and arguments: Page. 
 
 290. Scope of statement 235 
 
 291. Freedom of expression 235 
 
 292. Admissions 236 
 
 293. Arguments 236 
 
 Section II: Findings: 
 
 294. Voting 236 
 
 295. Number of votes necessary to conviction and sentence. 237 
 
 296. Reasonable doubt 238 
 
 297. General principles controlling findings 239 
 
 298. Guilty of a lesser included offense 239 
 
 299. Guilty with exceptions and substitutions 239 
 
 300. Finding of guilty of lesser included offense Substi- 
 
 tutions of the general or other special article 240 
 
 301. Joint charges 241 
 
 302. Reasons for findings 241 
 
 303. Findings where no criminality is involved 241 
 
 304. Findings under charge of drunkenness 241 
 
 305. Recording of finding or sentence by reporter 242 
 
 Section III : Previous convictions : 
 
 306. Procedure as to previous convictions 242 
 
 307. Character of previous convictions 243 
 
 Section IV: Sentences: 
 
 308. Voting on sentences 244 
 
 309. Mandatory and discretionary punishments 246 
 
 310. Sentences for officers 247 
 
 310a. Sentences for members of Army Nurse Corps, warrant 
 
 Officers, Army field clerks, and field clerks, Quarter- 
 master Corps 248 
 
 811. Sentences for soldiers 248 
 
 312. Dismissal 249 
 
 313. Loss of rank or files 249 
 
 314. Suspension from rank 250 
 
 315. Suspension from command 250 
 
 316. Suspension from duty 250 
 
 317. Fine 250 
 
 818. Reprimand 251 
 
 319. Restriction to limits 251 
 
 820. Dishonorable discharge 251 
 
 821. Suspension of dishonorable discharge 251 
 
 234 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^f 290 
 
 lection IV : Sentences Continued. Page. 
 
 322. Confinement *it hard labor 251 
 
 823. Hard labor without confinement 252 
 
 324. Forfeiture of pay and allowances 252 
 
 325. Courts can not stop pay in favor of Government or an 
 
 individual 252 
 
 326. Forfeiture of deposits 253 
 
 327. Reduction of noncommissioned officer : 253 
 
 328. Detention of pay or of part of pay 253 
 
 329. When reward for apprehending deserter not to be 
 
 stopped 253 
 
 330. Sentences of general prisoners 253 
 
 331. Reasons for sentence 254 
 
 332. Recommendations to clemency 254 
 
 332a. Announcement of sentence or acquittal in open court- 254 
 
 SECTION I. 
 STATEMENTS AND ARGUMENTS. 
 
 290. SCOPE OF STATEMENT. After the introduction of evi- 
 dence hns been completed the accused, personally or by coun- 
 sel, and whether or not he has testified as a witness, may make 
 an unsworn verbal or written statement as to the case. If the 
 statement is in writing it should be signed by the accused, or 
 by counsel in his behalf, and appended to the record. The 
 statement may consist of a brief summary or version of the 
 evidence, with such explanation or allegation of motive, ex- 
 cuse, matter of extenuation, etc., as the party may desire to 
 offer, or it may embrace, with the facts, a presentation also of 
 the law of the case and an argument both upon the facts and 
 the law. (Winthrop, p. 450.) Such statement is not testi- 
 mony and, therefore, is not subject to cross-examination, but 
 as a personal defense or argument, however, it may and prop- 
 erly should be taken into consideration by the court. (Digest, 
 p. 506V, ILL) 
 
 291. FREEDOM or EXPRESSION, Eatire freedom of expres- 
 sion in his statement to the court is allowable to an accused, 
 and his counsel, within the bounds of courtesy and ordinary pro- 
 priety, especially in his comments upon the evidence. So, an 
 accused may be permitted to reflect within reasonable limits 
 npon the apparent animus of his accuser or prosecutor, 
 though a superior officer or of high rank. But an attack upon 
 
 235 
 
^[ 292 CHAPTER XII. 
 
 such a superior of a personal character and not apposite to 
 the facts of the case is not legitimate; nor is language of 
 marked disrespect employed toward the court. Matter of 
 this description may indeed be required by the court to be 
 omitted by the accused as a condition to his continuing his 
 address or filing it with the record. (Digest, p. 506, V, H, 3.) 
 
 292. ADMISSIONS. While the statement proper can not, as 
 previously stated, be regarded as evidence, and the accused 
 is not in general to be held bound by the argumentative decla- 
 rations it contains, yet if he, in a statement made by him person- 
 ally, not by counsel, clearly and unequivocally admits in his 
 statement certain facts material to the prosecution, such may 
 properly be viewed by the court and reviewing authority in 
 the case. Such facts must, of course, not be inconsistent with 
 the plea. But admissions of this sort can scarcely in any 
 event constitute a sufficient basis for a conviction unless sup- 
 ported by material testimony on the trial. 
 
 NOTE. See Chapter IX, paragraph 154, as to procedure where, after 
 a plea of guilty, the accused makes a statement inconsistent with his 
 plea. 
 
 293. ARGUMENTS. After the accused has made a state- 
 ment, if any, arguments may be presented to the court by 
 the trial judge advocate, the accused, and his counsel. The 
 trial judge advocate has the right to make the opening and 
 closing argument, but the court, in its discretion, may permit 
 the defense to answer any new matter brought up in the clos- 
 ing argument of the trial judge advocate. 
 
 SECTION II. 
 FINDINGS. 
 
 294. VOTING. After the statements and arguments, if any 
 are made, have been concluded, the court will proceed to its 
 judgment, which consists of the findings and sentence. Vot- 
 ing by members of a general or special court-martial, on the 
 findings, shall be by secret written ballot, and the junior member 
 of the court shall in each case count the votes, and the president 
 shall verify the count and announce the result of the ballot to 
 the members of the court. (A. W. 31). If the ballots are in 
 
 236 
 
COURTS-MAETIAL CONCLUDING INCIDENTS OF TRIAL.^f 295 
 
 excess of or less than the number of members of the court present 
 at the time the vote is taken, the result will not be announced, 
 and a new. ballot will be taken. The votes of the members 
 must be based upon and governed by the testimony in the 
 case considered in connection with the pleadings, The 
 charges and specifications will be voted upon in the same 
 order that is followed in arraigning the accused, the first 
 specification to the first charge being first voted upon, then 
 the second, third, and thereafter in order, followed by a vote 
 upon the charge itself; and so on with the other charges. 
 Each member will write on his ballot, without signature, as 
 to each specification, either (1) "guilty," or (2) "not guilty," 
 or (3) " guilty, with exceptions or substitutions " (setting them 
 out in full on the ballot) ; and as to each charge (1) "guilty," 
 (2) " not guilty," or (3) " Not guilty, but guilty of violation 
 
 of the article of war," (setting it out). If the requisite 
 
 number of votes of " guilty " without qualification is not re- 
 ceived to convict the accused of the specification or charge, as 
 prescribed in paragraph 295, infra, the accused will be found 
 acquitted of the specification or charge; unless one or more such 
 exceptions or substitutions have been so proposed on the ballots, 
 in which case the president shall read all such proposals to the 
 members of the court, together with any others which may 
 then be proposed, and the members will then vote (each ballot 
 to be written, without signature, " guilty," or " not guilty ") 
 on each such proposed finding with exception or substitution, 
 in order, beginning with the one which the president considers 
 the severest, until all have been so voted on, or one has received 
 the requisite number of votes prescribed in paragraph 295. If 
 none of such proposed exceptions or substitutions is adopted by 
 the requisite number of votes prescribed, the accused shall be 
 deemed entirely acquitted of that specification or charge. All 
 ballots will be destroyed as soon as the result is announced, 
 unless some member of the court desires first to verify the count, 
 when they will be destroyed immediately after such verification. 
 
 NOTE. For refusal to vote a member is chargeable under A. W. 96, 
 see Chapter VII, paragraph 90a. 
 
 295. Number of Votes Necessary to Conviction and Sentence. 
 (a) Convictions. All convictions, whether by general or spe- 
 
 237 
 
IF 296 CHAPTER xii. 
 
 cial court-martial may be determined by a two-thirds vote of 
 those members present at the time the vote is taken (see par. 
 294, supra, and 308, infra, and notes thereto), except that no 
 person shall by general court-martial be convicted of an 
 offense for which the death penalty is made mandatory by 
 law (i. e., either upon the specification or the charge), except 
 by the concurrence of all the members of said court-martial 
 present at the time the vote is taken. Where the death pen- 
 alty is not mandatory but is discretionary a conviction may 
 be determined by a two-thirds vote, but all of the members 
 present at the time the vote is taken must concur in the death 
 penalty before it can be imposed. (A. W. 43.) 
 (b) Sentences: 
 
 (1) Death sentence. No person shall by general court- 
 martial be sentenced to suffer death, except by the concur- 
 rence of all the members of said court-inartial present at the 
 time the vote is taken, and for an offense expressly made 
 punishable by death by the articles of war. (A. W, 43.) 
 
 (2) Life imprisonment Confinement for more than 10 
 years. No person shall by general court-martial be sen- 
 tenced to life imprisonment, nor to confinement for more 
 than 10 years, except by the concurrence of three-fourths 
 of all of the members present at the time the vote is taken. 
 (A. W. 43.) 
 
 (3) All other sentences. All other sentences, whether 
 by general or special court-martial, may be determined by 
 a two-thirds vote of those members present at the time the 
 vote is taken. (A. W. 43.) 
 
 NOTE. All other questions arising during the trial will be de- 
 termined by a majority vote. (A. W. 43.) 
 
 296. KEASONABLE DOUBT. Where issues arise during the 
 progress of a trial, as for instance as to the competency of 
 members or witnesses, and evidence is taken, the question at 
 issue is determined by preponderance of evidence; but in 
 order to convict of the charges and specifications or any part 
 of them the court must be satisfied of the guilt of the accused 
 beyond a reasonable doubt. 
 
 NOTE, For description of reasonable doubt, see Chapter XI, para- 
 graph 288. 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^j" 297 
 
 297. GENERAL PRINCIPLES CONTROLLING FINDINGS. The 
 finding on the charge should be supported by the finding on 
 the specification (or specifications), and the two findings 
 should be consistent with each other. A finding of guilty on 
 the charge would be quite inconsistent with a finding of not 
 guilty on the specification. So a finding of guilty on a well- 
 pleaded specification apposite to the charge, not followed by 
 a finding of guilty either of the article charged or of some 
 other proper article, would be incongruous. No matter how 
 many specifications there may be, it requires a finding of 
 guilty on but one specification (apposite to the charge) to 
 support a similar finding upon the charge. (Digest, p. 536, 
 XII, A. 2.) Evidence can not be taken after a finding has 
 been readied (except as provided in par. 154 (e), supra). 
 
 298. GUILTY OF A LESSER INCLUDED OFFENSE, If the evi- 
 dence proves the commission of an offense which is included 
 in that with wliich the accused is charged the court may ex- 
 cept words of the specification, and if necessary substitute 
 others instead, pronounce the innocence and guilt of the ex- 
 cepted and substituted words, respectively, and then find the 
 accused either guilty of the charge or not guilty of the charge, 
 but guilty of a violation of another proper article of war as 
 the finding on the specification may require. Of this form 
 of verdict the most familiar is the finding of guilty of absence 
 without leave under a charge of desertion. In such a case the 
 court should find as follows where the charges are in the 
 usual form : 
 
 Of the specification, guilty except the words " desert " and 
 " in desertion " substituting therefor respectively the words 
 " absent himself without leave from " and " without leave," 
 of the exeepted words not guilty, of the substituted words 
 guilty. 
 
 Of the charge, not guilty but guilty of violation of the 
 sixty-first article of war. 
 
 NOTE. For a discussion of the incidental power of appointing and 
 confirming authorities to approve and confirm a finding of guilty of a 
 lesser included offense see Chapter XVI, paragraphs 377 and 379. 
 
 299. GUILTY WITH EXCEPTIONS AND SUBSTITUTIONS. It is 
 a peculiarity of the finding at military law that a court- 
 
 239 
 
If 300 CHAPTER XII. 
 
 martial, where of opinion that any portion of the allegations 
 in a specification is not proved, is authorized to find the ac- 
 cused guilty of a part of a specification only, excepting the 
 remainder; or, in finding him guilty of the whole (or any 
 part) , to substitute correct words or allegations in the place 
 of such as are shown by the evidence to be incorrect. And 
 provided the exceptions or substitutions leave the specifica- 
 tion still appropriate to the charge and legally sufficient 
 thereunder, the court may then properly find the accused 
 guilty of the charge in the usual manner. Familiar instances 
 of the exercise of the authority to except and substitute in a 
 finding of guilty occur in cases where, in the specification, 
 the name or rank of the accused or some other person is 
 erroneously designated, or there is an erroneous averment of 
 time or place, or a mistaken date, or an incorrect statement 
 as to amount, quantity, quality, or other particular, of funds 
 or other property. But the authority to find guilty of a lesser 
 included offense, or otherwise to make exceptions and substi- 
 tutions in the findings, does not justify the conviction of the 
 accused of an offense entirely separate and distinct in its na- 
 ture from that charged, thus " selling " and " through neglect 
 losing '' property are separate offenses though each is a viola- 
 tion of A. \V . 84. 
 
 300. Finding of Guilty of Lesser Included Offense. Substitu- 
 tion of the General Article or Other Special Article. The specifi- 
 cation apprises the accused of the allegations against him. He is 
 therefore put on trial as to all the allegations in the specification. 
 If but a part of such allegations be proved he may be found guilty 
 of such part, provided it constitutes an offense at military law. 
 Thus, on a specification alleging desertion for a certain period, 
 where the evidence proves an absence without leave for all or a 
 part of such period, but does not prove desertion or an attempt to 
 desert, the court may find the accused guilty of absence without 
 leave for such period or part thereof as may be proved. Like- 
 wise, where a specification of misbehavior before the enemy 
 under the seventy-fifth article alleges that the accused was ab- 
 sent without authority from his organization or post of duty for 
 a certain period and the evidence proves that he was so absent 
 but does not prove the other elements necessary to constitute the 
 
 240 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL, ^f 301 
 
 misbehavior denounced in the seventy-fifth article of war, the 
 accused may be found guilty of absence without leave for the 
 period charged and proved. And on the same principle man- 
 daughter or assault and battery may be found on trial for mur- 
 der (Par. 377). Indeed, in any case where such parts of the 
 specification as are proved constitute an offense denounced in a 
 special article of war, or a disorder or neglect to the prejudice 
 of good order and military discipline as denounced in the general 
 (ninety-sixth) article of war or a crime or offense punishable 
 under that article, a finding of guilt may be made under the ap- 
 propriate article. An attempt to commit a crime, since it is an 
 element of the crime, may be found on a specification alleging 
 such crime. 
 
 NOTE 1. " The prisoner may be convicted not merely of the offense 
 with which he is charged, but of any lesser offense that can be carved 
 out of the indictment." (May's Grim. Law, 93.) 
 
 NOTE 2. Where the article of war does not include " attempt " 
 in its express terms, the attempt should be found as a violation of the 
 general article. 
 
 301. JOINT CHARGES. Where joint charges are tried, if 
 one or more of the accused persons is acquitted and one or 
 more is convicted, the findings should by proper exceptions 
 eliminate the words showing that the acquitted person or 
 persons was a joint participant in the offense, and should 
 expressly acquit those persons whom it finds not guilty. 
 
 302. REASONS FOR FINDINGS. A court-martial may spread 
 upon the record of trial a brief statement of reasons upon 
 which its findings are based. In many cases such a statement 
 will aid the reviewing authority in determining the action 
 to be taken by him. 
 
 303. FINDINGS WHERE No CRIMINALITY Is INVOLVED. A 
 finding of " guilty without criminality " is not consistent and 
 should not be made. If the accused is found to have com- 
 mitted the act and done the things alleged in the specification, 
 but without the guilty intent or knowledge essential to con- 
 stitute the offense, the court should, as to the specification, 
 find the accused " not guilty." 
 
 304. FINDINGS UNDER CHARGE OF DRUNKENNESS. A per- 
 son "under the influence of intoxicating liquor " or " intoxi- 
 
 21358 20 16 
 
 241 
 
If 305 CHAPTER XII. 
 
 cated " is " drunk." Therefore, under the eighty-fifth article 
 of war, in charging that the accused was found " drunk " the 
 word " drunk " will be used. So, in charging other offenses 
 involving drunkenness, no other word or phrase will be used 
 as a substitute for " drunk." Under such charges the court 
 should not in its findings substitute such phrases as " under 
 the influence of intoxicating liquor " and " intoxicated " for 
 "drunk." 
 
 305. RECORDING OF FINDING OR SENTENCE BY REPORTER. A 
 court-martial, member of court, or trial judge advocate can 
 not, of course, lawfully communicate to a reporter or clerk, 
 by allowing him to record the same or otherwise, the finding 
 or sentence of the court unless the sentence or acquittal has been 
 announced in open court. But the fact that the finding or sen- 
 tence or both may have been made known to a reporter or 
 clerk can not affect the legality of the proceedings or sen- 
 tence. (Digest, p. 558, XIV, E, 7, g.) 
 
 SECTION III. 
 PREVIOUS CONVICTIONS. 
 
 306. Procedure as to Previous Convictions. Courts-martial 
 will, after a finding of guilty, be opened for the purpose of ascer- 
 taining whether evidence of previous convictions has been re- 
 ferred to the court by the appointing authority, and, if so, of re- 
 ceiving it. The introduction and use of evidence of previous con- 
 victions in the case of officers, warrant officers, members of the 
 Army Nurse Corps, Army field clerks, and field clerks Quarter- 
 master Corps, will be limited to that pertaining to convictions by 
 court-martial of an oifense or offenses committed by the accused 
 during his status as such officer, warrant officer, member of the 
 Army Nurse corps, Army field clerk, or field clerk Quartermaster 
 Corps, and within three years next preceding the commission of 
 any of the offenses of which he stands convicted before the court. 
 In the case of soldiers it will be limited to that pertaining to con- 
 victions by courts-martial of an offense or offenses committed by 
 the accused during the current enlistment and within one year 
 next preceding the commission of any of the offenses of which he 
 stands convicted before the court. These convictions may be 
 
 242 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL, ^f 307 
 
 proved only by the records of previous trials and convictions or 
 by duly authenticated copies of such records, or by duly authenti- 
 cated copies of orders promulgating such trials and convictions. 
 Copies of such records or orders promulgating trials and convic- 
 tions are duly authenticated when impressed with the stamp of 
 the bureau, office, or headquarters having custody of the original, 
 or when certified as a true copy by an officer having custody of 
 such records. 
 
 An entry of a fact of a previous conviction in the service record 
 of the accused is prima facie evidence, a duly authenticated copy 
 of which may be accepted ; unless the accused denies the correct- 
 ness of the entry, or objects to it as not fairly representing the 
 nature of the previous conviction. On such denial, or objection, 
 the court may, in its discretion, suspend proceedings until a duly 
 authenticated copy of the court-martial order or trial record is 
 obtained; otherwise it will not consider the entry in the service 
 record whose correctness is denied, or whose fairness is objected to 
 by the accused. The record of previous convictions, as shown by 
 the service record, is duly authenticated when certified as a true 
 copy by the officer having custody of such service record. 
 
 In a trial by general court-martial, when the proof is the copy 
 of the record or of the order promulgating the sentence furnished 
 to the regimental or other commander, it will be returned to him, 
 and a certified copy will be attached to the record of trial. When 
 the proof is a copy of the entries of previous convictions in the 
 service record, such copy will be attached to the record of trial. 
 The evidence of previous convictions referred to a special or sum- 
 mary court will, after trial, be returned to the appointing author- 
 ity and will, after action by the latter on the case, be returned to 
 the command to which it pertains. 
 
 307. CHARACTER or PREVIOUS CONVICTIONS. By " previous 
 conviction " is meant a previous conviction by a court-martial 
 where the sentence has been approved, and confirmed if con- 
 firmation be necessary, and ordered executed by competent author- 
 ity, or which has received such final approval or confirmation 
 (after examination by the Board of Review and the Judge Advo- 
 cate General in cases where so required by A. W. 50y 2 ) as may be 
 necessary to its execution. Such previous conviction may be ad- 
 
 243 
 
Tf 308 CHAPTER XII. 
 
 mitted even where the whole sentence was remitted. A previous 
 conviction by a civil or naval court, an acquittal, or an ap- 
 proved conviction by a court-martial that has been set aside 
 as illegal, is not a "previous conviction" as the phrase is 
 used here. Previous convictions are not limited to those for 
 offenses similar to the one for which the accused is on trial. 
 The object is to see if the accused is an old offender and 
 therefore less entitled to leniency than if on trial for his first 
 offense. This information might not be fully obtained if 
 evidence of previous convictions of similar offenses only were 
 laid before the court. -The consideration of previous con- 
 victions has 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. They are not considered 
 until after the findings have been reached. 
 
 SECTION IV. 
 SENTENCES. 
 
 308. VOTING on Sentences. After the findings have been 
 determined upon and resulted in conviction upon the charge, 
 or some one at least of the charges when there are several, or 
 in a conviction of a lesser offense included in one charge, and 
 evidence of previous convictions, if any, has been introduced, 
 the court proceeds to adjudge the sentence. In voting, the 
 thirty-first article of war requires that the voting shall be by 
 secret written ballot, and that the junior member of the court 
 shall in each case count the votes, which count shall be checked 
 by the president, who will forthwith announce the result of the 
 ballot to the members of the court. The balloting will be (except 
 as in this paragraph otherwise directed) in the same manner pre- 
 scribed for voting upon findings in paragraph 294, supra. Be- 
 fore the voting begins, any member desiring to propose a sen- 
 tence will write it on a slip of paper without signature and 
 hand it to the president. The president, before the voting be- 
 gins, will read the proposed sentences to the court and the 
 members will vote on them in order, beginning with the 
 lightest, until a sentence has been agreed upon by the number 
 of members required by the forty-third article of war. 
 
 244 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^f 308 
 
 A. W. 43 requires : 
 
 (a) For a death sentence, the concurrence of all the mem- 
 bers of the court-martial present at the time the vote is 
 taken (and for an offense expressly made punishable by 
 death by the Articles of War) ; 
 
 (b) For a sentence to life imprisonment or to confine- 
 ment for more than 10 years, the concurrence of three-fourths 
 of all the members of the court-martial present at the time 
 the vote is taken; 
 
 (c) For all other sentences, whether by general or special 
 court-martial, the concurrence of a two-thirds vote of those 
 members present at the time the vote is taken. 
 
 When a sentence of death is proposed all of the members 
 present at the time the vote is taken must agree upon the 
 death sentence before it can be adopted, regardless of 
 whether the death penalty is mandatory or merely discre- 
 tionary in the case on trial. Even in a case where the pun- 
 ishment is fixed, as for instance, under the eighty-second 
 article, where the punishment for lurking or acting as a 
 spy is death, and under the ninety-fifth article, where the 
 punishment is dismissal, the members must by vote impose 
 this punishment. All the members of the court present at 
 the time the vote is taken those, if any, who voted for an 
 acquittal equally with those who voted for conviction will 
 vote for some sentence. 
 
 A proposed sentence which does not receive the number of 
 ballots requisite for its adoption is rejected, and a ballot will 
 then be taken upon the next heavier proposed sentence, and so 
 on until a sentence has been adopted or until each proposed 
 sentence has been balloted upon. If, after all the proposed sen- 
 tences suggested in the first instance have been voted upon, none 
 has received the number of ballots requisite for its adoption, 
 then each member will make a new proposal of a sentence, in 
 the same manner as in the first instance, and these new pro- 
 posals will be balloted upon in the same order and manner as 
 before. This procedure will be continued until some sentence 
 is legally adopted. The written ballot on each proposed sen- 
 tence will be without signature and may be expressed " For " 
 or "Against." The ballots will be destroyed as soon as the 
 
 245 
 
IT 309 CHAPTER XII. 
 
 result of the ballot is announced, unless some member of the 
 court desires first to verify the count, when they will be de- 
 stroyed immediately after such verification. 
 
 NOTE 1. In determining whether a two-thirds or three-fourths 
 vote, as the case may require, has been cast in favor of any sentence, 
 wherever the mathematical two-thirds or three-fourths, as the case 
 may be, of the number of members present, includes a fraction, one 
 vote will be required to represent such fraction. Thus, for example, 
 since two-thirds of eight is five and one-third, in case eight members 
 are present, five votes not constituting the full statutory two-thirds 
 required, the ballots of six members will be required to agree upon a 
 sentence. Similarly, in a court where seven members are present, a 
 sentence requiring a three-fourths vote will require the votes of six 
 members. 
 
 NOTE 2. If a question arises as to which of two or more proposed 
 sentences is the lightest, the president will determine the question 
 (with the benefit of the advice of the law member of the court, if 
 present) and will direct the order in which the proposed sentences 
 shall be balloted upon. 
 
 309. MANDATORY AND DISCRETIONARY PUNISHMENTS. 
 Punishment, under the Articles of War, is either manda- 
 tory that is, a certain punishment is prescribed by the terms 
 of the article or is discretionary that is, it is left to the 
 discretion of the court-martial. If the punishment is pre- 
 scribed in the article violated, any other punishment than 
 that prescribed is illegal. For instance, the punishment 
 imposed by a court for a violation of the ninety-fifth article 
 of war must be dismissal ; it can not be less and it can not 
 be more, though a conviction under other articles at the same 
 trial might authorize the inclusion of other forms of pun- 
 ishment in the sentence. Before pronouncing sentence the 
 court should, therefore, examine the article violated to see 
 what punishment may be legally awarded. As to discre- 
 tionary punishments, the President, by virtue of an act of 
 Congress, has by Executive order prescribed maximum lim- 
 its of punishment for certain offenses. The latest order is 
 found in Chapter XIII, paragraph 349. If the punishment 
 is discretionary the court, before proceeding to award a 
 punishment, will ascertain whether a limit is fixed in the 
 order, and if no limit is fixed the court may impose any 
 punishment that is sanctioned by the custom of the service, 
 except that, in time of peace, the period of confinement in a 
 
 246 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^f 310 
 
 penitentiary must in no case exceed the maximum period pre- 
 scribed by the law which, under A. W. 42, permits confinement 
 in a penitentiary, unless, in addition to the offense so punishable 
 under such law, the accused shall have been convicted at the 
 same time of one or more other offenses. (A. W. 45.) 
 
 NOTE 1. See mandatory and discretionary punishment, Chapter IV, 
 Section II, paragraph 40. 
 
 NOTE 2. If a general court-martial, after finding an accused guilty 
 of an offense for which a mandatory punishment such as death, dis- 
 missal, or dishonorable discharge is prescribed by the Articles of War, 
 shall find upon a ballot being taken upon the question of imposition 
 of such mandatory sentence that the number of votes required by 
 A. W. 43 for the imposition of such sentence have not been cast in its 
 favor, then a second ballot shall be taken upon the same question. If 
 upon such second ballot the requisite number of votes for imposition 
 of such sentence is still lacking, the court will reconsider its findings 
 in the case, and may revoke its former findings and find the accused 
 not guilty, or "guilty of a lesser included offense. 
 
 NOTE 3. The fact that but one or two punishments are mentioned 
 as the maximum for a specified offense in the maximum punishment 
 order does not preclude awarding a lesser punishment of a different 
 kind. The maximum punishment order is not to be treated as a state- 
 ment of the punishments to be awarded for specified offenses, but only 
 as a limitation upon the extreme penalty. 
 
 310. SENTENCES FOR OFFICERS. For officers the legal sen- 
 tences by court-martial, depending on the nature of the 
 offense and the jurisdiction and punishing power of the court, 
 include death; dismissal with confinement at hard labor; 
 dismissal; loss of rank or files; suspension from rank, com- 
 mand, or duty, with or without loss or detention of pay or 
 part of pay; fine; forfeiture of pay or part of pay; detention 
 of pay or part of pay; restriction to limits; reprimand; and 
 admonition; but if tried by special court-martial the limita- 
 tions upon the punishing power of the court set out in A. W. 13 
 will be observed. (A. W. 12, 13.) 
 
 NOTE. Immediately upon the promulgation of any sentence of court- 
 martial in the case of a commissioned officer involving suspension from 
 rank and command, confinement, reduction in lineal rank, or any other 
 material change in the officer's status, the commander who has author- 
 ity to approve such sentence and carry it into execution will advise 
 The Adjutant General of the Army, by telegraph, of the sentence im- 
 posed as approved or mitigated and the date of promulgation thereof. 
 (G. O. No. 6, War Dept., 1910.) 
 
 247 
 
*H 311 CHAPTER XII. 
 
 310a. Sentences for Members of Army Nurse Corps, Warrant 
 Officers, Army Field Clerks, and Field Clerks Quartermaster 
 Corps. Members of the Army Nurse Corps have relative rank 
 (act of June 4, 1920, 41 Stat. 767-768), and are officers of the 
 Army, although not commissioned officers. Warrant officers, 
 Army field clerks, and field clerks Quartermaster Corps are like- 
 wise officers, although not commissioned officers. Therefore the 
 punishments prescribed in paragraph 310, supra, as appropriate 
 for commissioned officers are those appropriate for these classes 
 of persons subject to military law. Being officers of the Army 
 and no part of the enlisted personnel, they can not be reduced 
 to the ranks, nor to the grade or status of a noncommissioned 
 officer. A dismissal from the service, however, does not require 
 confirmation under A. W. 48. 
 
 311. SENTENCES FOR SOLDIERS. For soldiers, the legal sen- 
 tences, depending on the nature of the offense and the juris- 
 diction of the court, include death ; dishonorable discharge ; 
 confinement at hard labor; hard labor without confinement, 
 with or without restrictions to limits; restrictions to limits of 
 command, post, camp, or reservation; forfeiture of pay, or of 
 part of pay; detention of pay, or of part of pay; and repri- 
 mand ; for enlisted men of the sixth or of any higher grade, re- 
 duction to the seventh grade; for specialists; loss of specialist 
 rating, with or without reduction to the seventh grade; and 
 for those holding a certificate of eligibility to promotion, 
 deprivation of all rights and privileges arising from 
 such certificate. That portion of pay which is required to 
 be allotted to dependent relatives of class A, under the 
 provisions of Article II of the War Risk Insurance Act 
 of October 6, 1917, as amended by the act of December 24, 
 1919 (41 Stat. 372), is not subject to be detained or for- 
 feited by sentence of court-martial. Similarly the Comp- 
 troller of the Treasury has held (a) that portion of pay 
 voluntarily allotted for the support of dependent rela- 
 tives of class B under said War Risk Insurance Act; (5) 
 
 248 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^f 312 
 
 that portion of pay allotted for the payment of insurance 
 premiums under said act; and (c) that portion allotted for 
 the purchase of liberty loan bonds are not disturbed or 
 affected by a sentence of court-martial imposing a forfeiture 
 of pay (24 Comp. Dec. 621), and such allotments will be 
 excluded from the effect of any sentence of detention or for- 
 feiture of pay or part of pay. A sentence imposing detention 
 or forfeiture of a part of pay means the detention or forfei- 
 ture of the specified part of that portion of the pay which 
 is not so allotted. 
 
 NOTE 1. Confinement without hard labor should never be imposed. 
 
 NOTE 2. For forms of sentence see Appendix 13. 
 
 NOTE 3. For limitations on punishing powers of special and sum- 
 mary courts-martial, see A. W. 13 and 14, and paragraphs 42 and 44, 
 supra, and Appendix 21. 
 
 NOTE 4. For War Department policy respecting punishments, see 
 infra, paragraphs 340-345. 
 
 NOTE 5. As to punishments generally, see infra, Chapter XIII, 
 paragraphs 333-349. 
 
 312. DISMISSAL. Under the ninety-fifth article of war 
 which prescribes the mandatory sentence of dismissal upon 
 conviction " of conduct unbecoming an officer and a gentleman," 
 no punishment in addition to dismissal is authorized. 
 Therefore no punishment in addition to dismissal can legally 
 be imposed upon conviction of an offense under the ninety- 
 fifty article of war alone. 
 
 NOTE. For statement by whom a sentence of dismissal or dishon- 
 orable discharge imposed by National Guard courts-martial, not in the 
 service of the United States, must be approved, see section 107, act of 
 June 3, 1916, 39 Stat, 166 ; Appendix 2, infra. 
 
 313. Loss OF RANK or Files. Loss of rank or files is ac- 
 complished by a sentence directing that an accused be placed 
 at the foot of the list of officers of his grade on the promotion 
 list of the Army, or of his department, branch, or service, if he 
 belongs to a department, branch, or service, not carried on the 
 general promotion list of the Army, or that he remain at the 
 foot of such list for his grade until he shall have lost a cer- 
 tain number of files, or for a certain length of time, or that 
 he lose a certain number of files, or that his name shall appear 
 in the lineal list of officers of his grade on the general promo- 
 
 249 
 
f 314 CHAPTER xn. 
 
 tion list of the Army, or on the promotion list of his department, 
 branch, or service, as the case may be, below that of a certain 
 officer named. 
 
 314. SUSPENSION FROM RANK. Suspension from rank in- 
 cludes suspension from command. It deprives an officer of 
 the right to promotion to a vacancy in a higher grade occur- 
 ring pending the term of suspension and which he would 
 have been entitled to receive by virtue of seniority had he 
 not been suspended. It does not, however, deprive the officer 
 of the right to rise in files in his grade. Suspension from 
 rank also makes an officer ineligible to sit upon a court- 
 martial, court of inquiry, or military board, and deprives 
 him of privileges that depend on rank, such as the selection 
 of quarters. 
 
 315. SUSPENSION FROM COMMAND. This punishment 
 merely deprives the officer of authority to exercise his proper 
 military command, and consequently of his right to give 
 orders to or exact obedience from his juniors or perform any 
 other duties that go with the exercise of command. It does 
 not affect his right of promotion or any military rights or 
 privileges other than those attaching to command. It is 
 therefore not an appropriate punishment for a staff officer. 
 
 316. SUSPENSION FROM DUTY. Suspension from duty is 
 practically equivalent to a sentence of suspension from com- 
 mand. It is appropriate in the case of an officer holding a 
 position involving the performance of administrative duty, 
 as distinguished from actual military command, as in the 
 case of officers of the staff. 
 
 317. FINE. A fine is distinguished from a forfeiture in 
 that it is a punishment which imposes a pecuniary liability 
 in general, not necessarily affecting pay. It is especially 
 recognized as a form of punishment in the ninety- fourth 
 article of war. It is usually accompanied in the sentence 
 by a provision, in order to enforce collection, that the person 
 fined shall be imprisoned until the fine is paid or until a 
 fixed portion of time considered as an equivalent punish- 
 ment has expired. Fines as well as forfeitures accrue to the 
 United States and can not be imposed or collected for the 
 benefit of any individual. 
 
 250 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^f 318 
 
 318. REPRIMAND. This sentence is usually awarded to 
 officers for minor offenses where a mild penalty is to be in- 
 flicted. It may be awarded to any other person subject to 
 military law under appropriate circumstances where other 
 penalties are not necessary. A summary court-martial may im- 
 pose this punishment where it is believed it will be more effec- 
 tive than a forfeiture or other punishment. The proper au- 
 thority to administer the reprimand is the reviewing au- 
 thority, and he may administer it orally or in writing, vary- 
 ing it in severity or mildness according to his views in the 
 case. 
 
 319. Restriction TO LOUTS. This form of punishment is 
 rather a deprivation of privileges than confinement. It will 
 usually be so qualified as to enable the person upon whom it is 
 imposed to perform his military duties. 
 
 320. DISHONORABJLE DISCHARGE. A dishonorable dis- 
 charge can be imposed only pursuant to a sentence of a gen- 
 eral court-martial. (A. W. 108.) The discharge should be 
 dated as of the day on which the order promulgating such 
 approval is received at the post where the soldier is held. 
 A sentence adjudging a dishonorable discharge to take effect 
 at such period during a term of confinement as may be desig- 
 nated by the reviewing authority is illegal. 
 
 321. SUSPENSION OF DISHONORABLE DISCHARGE. Members 
 of a court-martial may properly recommend, in a commu- 
 nication made separately but forwarded to the reviewing 
 authority with the record, that sentence of dishonorable dis- 
 charge be suspended. (See par. 332.) 
 
 322. CONFINEMENT AT HARD LABOR. In the case of officers 
 this punishment is imposed only in connection with a sen- 
 tence of dismissal. Where " hard labor " is intended, it 
 should be stated in the sentence, but the omission of these 
 words will not prevent such punishment being required 
 where it is authorized in the maximum-punishment order. 
 (See A. W. 37.) 
 
 NOTE. Chapter XVI, Section I, paragraphs 396-398, state the rules 
 as to whether a post, the United States Disciplinary Barracks or one 
 of its branches, or a penitentiary shall be designated as the place of 
 confinement. 
 
 251 
 
Tf 323 CHAPTER XII. 
 
 323. HARD LABOR WITHOUT CONFINEMENT. This punish- 
 ment is regulated by the provisions of the Executive order 
 fixing the maximum limits of punishment, Chapter XIII, 
 Section VI, paragraph 349. 
 
 It is the policy of the War Department to encourage the use 
 of this punishment, wherever practicable, in lieu of confine- 
 ment at the post or in a guardhouse. 
 
 324. FORFEITURE OF PAY AND ALLOWANCES. Pay and 
 allowances can not be forfeited in a sentence by implication. 
 If the court intends to forfeit pay or pay and allowances, 
 the penalty of forfeiture will be adjudged in express terms 
 in the sentence. No other punishment imposable by court- 
 martial not even a sentence of death, dismissal, suspension, 
 dishonorable discharge, or imprisonment involves of itself 
 a forfeiture or deprivation of any part of the pay or allow- 
 ances due to the party at the time of the approval or taking 
 effect of the sentence. It is not customary to provide in 
 sentences for a forfeiture of allowances unless the sentence 
 also imposes forfeiture of pay. A sentence of forfeiture of 
 pay, without mention of allowances, does not forfeit allowances, 
 and a sentence of forfeiture of a certain number of days' 
 pay, or two-thirds of a soldier's pay for a certain period, 
 does not forfeit extra -duty pay. (Digest, p. 544, XII, 
 B, 3, e (1) ; Bui. 18, War Dept., 1915, pp. 8, 9.) 
 
 325. COURTS CAN NOT STOP PAY IN FAVOR OF GOVERNMENT 
 OR AN INDIVIDUAL. A court-martial can direct a forfeiture 
 only in favor of the United States, and can not assign the 
 pay of a soldier to -any other person ; nor can a soldier be re- 
 quired to receipt for money paid without his consent. A sen- 
 tence can not appropriate or stop pay for the reimburse- 
 ment or benefit of the Government or a Government agency, 
 such as a company fund, post fund, hospital fund, nor of an 
 individual, civil or military, however justly the same may 
 be due him, either for money borrowed, stolen, or embezzled 
 by the accused or to satisfy any other pecuniary liability 
 of the accused, whether in the nature of debt or damages. 
 The " stoppage " of pay to reimburse the Government or a 
 Government agency on account of losses for which officers 
 and enlisted men are responsible is purely an administra- 
 
 252 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^f 326 
 
 tive matter with which courts-martial have nothing to do. 
 Sentences providing that a soldier shall be dishonorably dis- 
 charged, forfeiting all pay and allowances due or to become 
 due, " except such amounts as may be due the post exchange, 
 
 Fort , and the company fund, Company , 
 
 Infantry," in no way hasten or facilitate the settle- 
 ment of the debts due the exchange or company fund. Such 
 matters in a sentence are mere surplusage. 
 
 326. FORFEITURE OF DEPOSITS. Deposits of soldiers and 
 interest thereon are forfeited by desertion, but the forfeiture 
 can not be imposed by sentence of a court-martial. They are 
 exempt from liability to meet a sentence of a court-martial 
 imposing forfeiture of pay or allowances. A sentence that 
 a soldier shall deposit a certain part of his pay is illegal. 
 (Digest, p. 547, XII, B, 4, c.) 
 
 327. REDUCTION OF NONCOMMISSIONED OFFICER. This 
 punishment is regulated by the provisions of the Executive 
 order fixing maximum limits of punishment, Chapter XIII, 
 Section VI, paragraph 349, and by General Orders No. 71, War 
 Department, December 1, 1920 (Appendix 21). 
 
 328. DETENTION OF PAY or of Part of Pay. This punish- 
 ment was revived by the Executive order of September 5, 
 1914, fixing the maximum limits of punishment, and is recog- 
 nized now by statute (A. W. 14), and is regulated by A. W. 
 14 and the provisions of the Executive order contained in 
 Chapter XIII, Section VI, paragraph 349, infra. 
 
 It is the policy of the War Department to encourage the use 
 of this punishment, where applicable, instead of forfeiture of 
 pay. 
 
 329. WHEN REWARD FOR APPREHENDING DESERTER NOT TO 
 BE STOPPED. If a soldier be brought to trial under a charge 
 of desertion and acquitted, or convicted of absence without 
 leave only, any amount paid as a reward for his arrest will 
 not be stopped against his pay, and a sentence providing for 
 such a stoppage is not authorized. 
 
 330. SENTENCES OF GENERAL PRISONERS. Courts-martial 
 in imposing sentences upon general prisoners are restricted 
 to imposing additional confinement at hard labor to be 
 served upon the completion or termination of their existing 
 
 253 
 
f 331 CHAPTER XII. 
 
 sentences, and will not interfere with the manner of execut- 
 ing such sentences by prescribing loss of good-conduct time, 
 solitary confinement, or confinement on bread-and-water 
 diet, leaving all such punishments to be imposed by the com- 
 manding officer as the ordinary means of enforcing dis- 
 cipline. 
 
 331. REASONS FOR SENTENCE. A court-martial may spread 
 upon the record of trial a brief statement of reasons upon 
 which its sentence is based. In many cases such a statement 
 will aid the reviewing authority in determining the action 
 to be taken by him. 
 
 332. RECOMMENDATIONS TO CLEMENCY. When a court- 
 martial, or any member thereof, desires to submit a recom- 
 mendation to clemency, including a recommendation for 
 the suspension of the whole or of any part of the sentence 
 imposed by the court, such recommendation will be signed by 
 each member of the court desiring to participate therein. 
 The communication carrying the recommendation will in- 
 clude a statement in succinct form of the reasons upon which 
 the recommendation is based, and of the specific amount and 
 character of clemency recommended, and will be appended to 
 the record of trial. (See par. 357 (d).) 
 
 NOTE. It is extremely annoying to a reviewing authority to re- 
 ceive a vague, indefinite recommendation to clemency. Both he and 
 his staff judge advocate, in advising him, desire, and should have, 
 the benefit of the specific opinion and recommendations of the mem- 
 bers of the court recommending clemency as to the amount and 
 character of the clemency which should be extended. 
 
 332a. Announcement of Sentence or Acquittal in Open 
 Court. Whenever the court has acquitted the accused upon all 
 specifications and charges, the court shall at once announce such 
 result in open court. (A. W. 29.) 
 
 Whenever a general or special court-martial has sentenced the 
 accused, the court shall at once announce the findings and 
 sentence in open court, unless, in the court's opinion, for reasons 
 that will he stated in the record, the findings and sentence 
 should not he made puhlic at that time. 
 
 Immediately upon the announcement of the sentence or ac- 
 quittal (or in case the court directs, as ahove, that the sentence 
 be not announced in open court, immediately thereupon) the 
 
 254 
 
COURTS-MARTIAL CONCLUDING INCIDENTS OF TRIAL.^[332a 
 
 trial judge advocate will notify the commanding officer in writ- 
 ing, direct, whereupon, if the accused has been acquitted, or if 
 he has been convicted and the sentence does not include con- 
 finement, the commanding officer will at once, if the accused is 
 in arrest or confinement, release him from such arrest or con- 
 finement, unless he is awaiting trial or the action of the review- 
 ing or confirming authority upon conviction under other charges, 
 on account of which the commanding officer deems it necessary 
 to continue him in such arrest or confinement. No person sub- 
 ject to military law convicted by a general or special court- 
 martial shall be ordered to duty outside of the jurisdiction of the 
 reviewing authority until the case has been finally disposed of, 
 except by the authority of the Secretary of War. 
 
 255 
 
CHAPTER XIII. 
 COURTS-MARTIALPUNISHMENTS. 
 
 Section I : Disciplinary power of commanding officer : Pa?e. 
 
 333. Authority for 256 
 
 834. Record of punishment 259 
 
 335. Appeals 259 
 
 336. Not limited to soldiers 259 
 
 336a. War Department policy Disciplinary punishment 
 
 preferred to court-martial 260 
 
 336b. As to officers in time of war or emergency 260 
 
 336c. Procedure 261 
 
 336d. In case accused demands trial 261 
 
 Section II : Confinement in a penitentiary : 
 
 337. When authorized 261 
 
 338. Classes of sentences to be executed in a penitentiary. 262 
 
 339. Authority for penitentiary sentence to be cited 264 
 
 Section III : War Department policyl regarding punishments : 
 
 340. Desertion 264 
 
 341. Segregation of prisoners 267 
 
 342. Adaptation of punishments 267 
 
 342a. Same subject Penitentiary confinement 268 
 
 343. Relative severity of punishments 269 
 
 343a. Limits of punishments upon rehearing 269 
 
 Section IV: Prohibited punishments: 
 
 344. By statute 273 
 
 345. By custom and regulations 273 
 
 Section V: Death Cowardice Fraud: 
 
 346. Death penalty 273 
 
 347. Cowardice Fraud Accessory penalty 274 
 
 Section VI : Maximum limits : 
 
 348. By whom prescribed When applicable 275 
 
 349. Executive order 277 
 
 SECTION I. 
 DISCIPLINARY POWER OF COMMANDING OFFICER. 
 
 333. AUTHORITY FOR. While courts-martial are the judi- 
 cial machinery provided by law for the trial of military 
 offenses, the law also recognizes that the legal power of com- 
 
 256 
 
COURTS-MARTIAL PUNISHMENT. ^f 333 
 
 mand, when wisely and justly exercised to that end, is a 
 powerful agency for the maintenance of discipline. Courts- 
 martial and the disciplinary powers of commanding officers 
 have their respective fields in which they most effectually 
 function. The tendency, however, is to resort unnecessarily 
 to courts-martial. To invoke court-martial jurisdiction 
 rather than to exercise this power of command in matters 
 to which it is peculiarly applicable and effective, is to choose 
 the wrong instrument, disturb unnecessarily military func- 
 tions, injure rather than maintain discipline, and fail to 
 exercise an authority the use of which develops and increases 
 the capacity for command. 
 
 Legal sanction is now given to the exercise of such discipli- 
 nary power by the following article of war : 
 
 "ART. 104. Under such regulations as the President may 
 prescribe, the commanding officer of any detachment, com- 
 pany, or higher command may, for minor offenses, impose 
 disciplinary punishments upon persons of his command 
 without the intervention of a court-martial, unless the ac- 
 cused demands trial by court-martial." 
 
 The disciplinary punishments authorized by this article 
 may include admonition, reprimand, withholding of privi- 
 leges for not exceeding one week, extra fatigue for not exceed- 
 ing one week, and restriction to certain specified limits for 
 not exceeding one week, and hard labor without confinement 
 for not exceeding one week, but shall not include forfeiture of 
 pay or confinement under guard ; except that in time of war 
 or grave public emergency a commanding officer of the grade 
 of brigadier general or of higher grade may, under the provi- 
 sions of this article, also impose upon an officer of his command 
 below the grade of major a forfeiture of not more than one- 
 half of such officer's monthly pay for one month. 
 
 A person punished under authority of this article who 
 deems his punishment unjust or disproportionate to the 
 offense may, through the proper channel, appeal to the next 
 superior authority, but may in the meantime be required 
 to undergo the punishment adjudged. The commanding 
 officer who imposes the punishment, his successor in com- 
 mand, and superior authority shall have power to mitigate 
 21358 20 17 
 
 257 
 
^[333 CHAPTER xm. 
 
 or remit any unexecuted portion of the punishment. The 
 imposition and enforcement of disciplinary punishment 
 under authority of this article for any act or omission shall 
 not be a bar to trial by court-martial for a crime or offense 
 growing out of the same act or omission; but the fact that 
 a disciplinary punishment has been enforced may be shown 
 by the accused upon trial, and when so shown shall be con- 
 sidered in determining the measure of punishment to be ad- 
 judged in the event of a finding of guilty. (But see par. 
 l$2(a) supra. 
 
 While commanding officers should always use their utmost 
 influence to prevent breaches of discipline and compose con- 
 ditions likely to give rise to such breaches, they should also 
 impose and enforce the disciplinary punishment authorized 
 by the above article. This authority, involving the power, 
 judgment, and discretion of the commander, can not be dele- 
 gated to or in any manner participated in by others, but 
 must be exercised by the commander upon his own judgment 
 and in strict compliance with the article and the regulations 
 prescribed by the President pursuant thereto. Accordingly, 
 the commanding officer of a detachment, company,, or higher 
 command will usually dispose of, and may award disciplin- 
 ary punishment for, any offense committed by any enlisted 
 man of his command which would ordinarily be disposed 
 of by summary court-martial, when the accused does not 
 demand trial by court-martial before the commanding officer has 
 made and announced his decision in the case. 
 
 As remarked by the major general commanding in G. 0. 73, 
 W. D., 1892: 
 
 " The increasing number of trials by summary court and the 
 trivial character of many of the offences tried indicate that com- 
 manding officers frequently fail to make use of this power. They 
 are therefore reminded that it is their duty to use all reason- 
 able means to prevent the occurrence of delinquencies rather 
 than to punish them. In the discharge of this duty they may 
 not only deprive unworthy soldiers of privileges but take such, 
 steps as may be necessary to enforce their orders. It is believed 
 that the proper use of this power will make it unnecessary to 
 bring before the summary court many of the trifling delinquen- 
 cies which are now made the subject of trial; indeed, that such 
 
 258 
 
COTJRTS-MAKTIAL PUNISHMENT. If 334 
 
 trifling delinquencies will in great measure be prevented. De- 
 partment commanders will see that their subordinate command- 
 ing officers fulfill their duties in this regard." 
 
 334. RECORD OF PUNISHMENT. For each punishment 
 awarded the commander will cause to be made in the com- 
 pany punishment book a brief statement showing 
 
 (a) The offense, including date. 
 
 (b) Punishment, if any, with date on which awarded. 
 
 (c) Decision of higher authority, if appeal is made; 
 but will not make any entry thereof on the service record of the 
 accused. 
 
 335. APPEALS. If an appeal is made to the next superior 
 authority, it shall be in writing through the immediate com- 
 mander awarding the punishment or his successor, who will 
 immediately forward it to the superior with a copy of the 
 record. An appeal shall consist of a brief statement signed 
 by the accused, giving his reasons for regarding the punish- 
 ment as unjust or disproportionate, and shall be accom- 
 panied by a like brief statement by the commander in sup- 
 port of the punishment awarded. The superior will, in 
 passing upon the appeal, hear no witnesses and will con- 
 sider no statements other than those forwarded with the 
 appeal, but will be limited strictly to the consideration of 
 the punishment awarded. When justice requires such ac- 
 tion he will modify the punishment or set it aside, but will 
 not increase it, and will in no case award a different kind of 
 punishment. After having considered the appeal he will 
 return the record to the commanding officer from whom 
 received, with a statement of his disposition of the case. 
 
 336. NOT LIMITED TO SOLDIERS. The power is not limited 
 in its application, either in law or principle, to enlisted men, 
 but may with propriety be applied as well to any other per- 
 son subject to military law, including commissioned officers, 
 especially those of junior grades. Obviously, in the case 
 of officers the occasion for such action will be less frequent, 
 the variety of punishment available more restricted, and 
 the selection of the most effectual punishment more perplex- 
 ing, but when the best interests of discipline require such 
 action will be taken with firmness, and in no wise restrained 
 
 259 
 
If 336a CHAPTEK xiii. 
 
 by an unwarranted regard for the commissioned grade of the 
 offender. 
 
 336a. War Department Policy Disciplinary Punishment Pre- 
 ferred to Court-Martial. It is the policy of the War Depart- 
 ment that commanding officers should resort to their disciplinary 
 powers under A. W. 104 in preference to employing courts-mar- 
 tial, and more especially summary courts-martial. In accord- 
 ance with this policy trials by court-martial, and particularly 
 by summary courts-martial, will usually be resorted to only 
 where disciplinary punishments have failed to prevent infrac- 
 tions of discipline, and in consequence the instances of disci- 
 plinary punishment should far exceed the number of trials. It 
 should be a very rare case where a soldier is tried by summary 
 courts-martial without having previously been repeatedly sub- 
 jected to disciplinary punishment. 
 
 This policy does not leave it optional with the commanding 
 officer of the detachment, company, or higher command to 
 either impose disciplinary punishment or prefer charges in his 
 discretion. On the contrary, it requires him to resort first to 
 disciplinary punishment. Inability to maintain discipline with- 
 out frequent resort to court-martial, and particularly to trials 
 by summary courts-martial, strongly suggests inefficiency, unless 
 the circumstances be very exceptional. As it is the duty of a 
 senior commanding officer to see that subordinate commanders 
 follow this policy, he must accept the ultimate responsibility 
 for the number of inferior court trials in the commands of his 
 subordinate commanding officers. No commanding officer exer- 
 cising court-martial jurisdiction can escape responsibility for 
 an excessive number of such trials by the excuse that organiza- 
 tion . commanders have represented that trials are necessary to 
 maintain discipline. Discipline must be maintained subject to 
 this War Department policy, which commanding officers will 
 rigidly enforce. 
 
 336b. As to Officers, in Time of War or Emergency. It is 
 notable that in time of war or great public emergency the 
 power of punishment by a commanding officer of the grade of 
 brigadier general or of higher grade extends (under the one 
 hundred and fourth article of war, as amended by the code of 
 1920), as to officers of his command below the grade of major, to 
 
 2GO 
 
COURTS-MARTIAL PUNISHMENT. ^f 336C 
 
 forfeiture of not more than one-half of such officer's monthly 
 pay for one month. 
 
 336c. Procedure. It is not necessary that formal charges be 
 filed. But the accused will be informed orally or in writing of 
 the accusation, and, where he does not admit the commission 
 of the offense, the commanding officer will carefully investigate 
 the case in the same manner as a summary court-martial, ad- 
 ministering oaths to all persons testifying for the prosecution 
 or defense. (But see par. 76a.) The investigation will in all 
 ordinary cases be held at the office of the commanding officer. 
 
 336d. In Case Accused Demands Trial. If the accused de- 
 mands trial by court-martial, then (a) if charges have been 
 filed steps will promptly be taken to investigate the charges 
 in the usual manner, or (b) if charges have not been filed the 
 commanding officer may himself prefer charges or may direct an 
 investigation to be made to determine whether charges should 
 be preferred, and, in either case, if formal charges are preferred 
 they will be investigated in the usual manner. No notation or 
 memorandum of any kind of accused's demand for trial by 
 court-martial will appear upon the charges. 
 
 SECTION II. 
 CONFINEMENT IN A PENITENTIARY. 
 
 337. WHEN AUTHORIZED. The forty-second article of war 
 follows the rules of the Federal Penal Code and practice 
 respecting the imposition of penitentiary confinement in so 
 far as they can be applied to court-martial procedure. 
 Under the Federal Penal Code any offense is a felony which 
 is punishable under the code or other statute of the United 
 States by death, or by imprisonment for a term exceeding one 
 year. (Sec. 335, Fed. Pen. Code of 1910.) But no person may 
 be confined in a penitentiary unless the punishment actually 
 adjudged for an offense of which he has been convicted 
 exceeds one year. Under civil procedure it is not permissible 
 to join in a single indictment and trial offenses of a different 
 nature. As a matter of practice, also, confinement is never 
 ordered to be executed in a penitentiary unless among the 
 offenses upon which the sentence is awarded is found a 
 felony ; that is to say, an offense of a civil nature, separately 
 
 261 
 
^ 338 CHAPTER xm. 
 
 punishable by confinement to exceed one year. The practical 
 result is that no person is confined in a penitentiary unless 
 both o-f the following conditions subsist : 
 
 (1) The confinement that could lawfully be awarded as 
 punishment of some one of the offenses of which he stands 
 convicted (if that conviction stood alone) would exceed one 
 year. 
 
 (2) The confinement actually adjudged exceeds one year. 
 The ninet}'-third and ninety-sixth articles of war now 
 
 confer upon courts-martial jurisdiction to try all crimes and 
 offenses, not capital,, of which persons subject to military 
 law may be guilty. Under the military practice, dissimilar 
 offenses may be joined in the same set of charges ; convictions 
 may be had on one set of charges joining crimes of a civil 
 nature with purely military offenses, and a single sentence 
 may be adjudged on all the convictions. Also, there are 
 certain purely military offenses which are by statute made 
 punishable by confinement in a penitentiary, regardless of 
 the term of confinement imposed. Notwithstanding these 
 departures from the practice of Federal courts,, the juris- 
 diction granted to courts-martial to punish offenses of a 
 civil nature is not to be exercised with greater harshness 
 than is practiced under the criminal jurisdiction of United 
 States courts, and the analogies with the penal rules of those 
 courts are maintained, as far as they can be preserved under 
 court-martial procedure, by the forty-second article of war 
 and the following rules of practice, which result from that 
 article. 
 
 338. CLASSES OF SENTENCES TO BE EXECUTED IN A PENI- 
 TENTIARY. Sentences of the following classes may be exe- 
 cuted in a penitentiary : 
 
 Glass 1 Commutation of death sentence. Any confine- 
 ment, whether more or less than a year, awarded by way of 
 commutation of a death sentence^ may be executed in a peni- 
 tentiary; and this is true whether the offense for which the 
 sentence of death was awarded was of a military or of a 
 civil nature, and whether the sentence was awarded on con- 
 viction of a capital charge alone or on conviction on a 
 capital charge coupled with conviction on other charges not 
 capital. 
 
 262 
 
COURTS-MARTIAL, PUNISHMENT. ^[ 338 
 
 Class % Military offenses. A sentence of confinement 
 awarded upon conviction of one or more of the military 
 offenses enumerated in this class may be executed in a peni- 
 tentiary, regardless of the length of the sentence imposed, 
 but in practice a penitentiary should not be designated un- 
 less the confinement adjudged exceeds one year. However, 
 if a conviction is had on several offenses, either military or 
 civil in nature, one of which is included in this class, and 
 the sentence adjudged on all the convictions together ex- 
 ceeds one year, the confinement may be executed in a peni- 
 tentiary. The military offenses comprised in this class are : 
 
 (a) Desertion in time of war. 
 
 (b) Repeated desertion in time of peace. 
 
 (c) Mutiny. 
 
 Class 3 Offenses of a civil nature. A sentence exceeding 
 one year's confinement, awarded, either on conviction of any 
 one or more of the several offenses of a civil nature de- 
 scribed below, or on conviction of any one or more of such 
 civil offenses coupled with a conviction or convictions of one 
 or more military offenses, may be executed in a penitentiary, 
 if any one of such several offenses of a civil nature standing 
 alone would be punishable by penitentiary confinement for 
 more than one year, by some statute of the United States, of 
 general application within the continental United States (ex- 
 cepting section 289, Penal Code of the United States, 1910), or by 
 the law of the District of Columbia, 
 
 The civil offenses contemplated in class 3 are: 
 
 (a) An act or omission specified and denounced as an 
 offense in the Penal Code of the United States (Federal 
 Penal Code of 1910, except section 289 thereof), and made 
 punishable thereby by confinement in a penitentiary for 
 more than one year. 
 
 (b) An act or omission specified and denounced as an 
 offense in any other statute of the United States, of 
 general application within the continental United States 
 (always excepting, however, section 289 of the Federal Penal 
 Code), and made punishable thereby by confinement in a 
 penitentiary for more than one year. This heading has 
 reference particularly to penal provisions not properly 
 
 263 
 
If 339 CHAPTER XIII. 
 
 separable from the administrative laws of the several 
 branches and departments of Government, and not in- 
 cluded in the Penal Code. Such offenses will rarely 
 be encountered in court-martial practice. 
 
 (c) An act or omission recognized as an offense by 
 the law of the District of Columbia, wherever committed 
 or omitted, and made punishable thereby by confinement in 
 a penitentiary for more than one year. 
 
 By the phrase " the law of the District of Columbia " is meant 
 the entire body of law, both statutory and common law, in force 
 in the District of Columbia on the date of the commission of the 
 offense. 
 
 Offenses under this head that may be encountered in court- 
 martial practice include the offense of sodomy. 
 
 339. AUTHORITY FOR PENITENTIARY SENTENCE TO BE 
 CITED. In each case tried by general court-martial in which 
 a penitentiary is designated as the place of confinement of 
 the person tried, the record of trial, when forwarded to the 
 Judge Advocate General of the Army, will be accompanied 
 by a signed statement indicating the law or laws authoriz- 
 ing the confinement in a penitentiary of the person sentenced. 
 
 If the law relied upon as authorizing confinement in a 
 penitentiary be a Federal statute, an accurate citation will 
 be regarded as sufficient to indicate the law, but if any other 
 law is relied upon as authorizing such confinement, the 
 law will be quoted in full in the required statement. 
 
 SECTION III. 
 WAR DEPARTMENT POLICY REGARDING PUNISHMENTS. 
 
 340. DESERTION. The policy of the War Department re- 
 specting punishment for desertion was announced in Gen- 
 eral Orders, No. 77, War Department, June 10, 1911. Cor- 
 rective confinement and forfeiture were suggested in cases 
 of inexperienced soldiers who by surrender manifested a 
 disposition to atone for their offenses. The number so pun- 
 ished and saved to the service has so increased each year 
 that this policy has been enforced with fairly satisfactory 
 results. In addition a limited number of this class of of- 
 
 264 
 
COURTS-MARTIAL PUNISHMENT. ^f 340 
 
 fenders has been restored to duty without trial under the 
 provisions of A. R. 131. 
 
 Since that order was issued important changes have been 
 introduced in our military penology. Purely military of- 
 fenders serving sentences in the United States Disciplinary 
 Barracks at Fort Leavenworth and its branches may be re- 
 stored to an honorable status and complete their enlistment. 
 By the act of August 22, 1912 (37 Stat. 356), reenlistment 
 of this class of offenders is authorized with the approval, in 
 each case, of the 'Secretary of War. Under the provisions 
 of the act of April 27, 1914 (38 Stat. 354), dishonorable 
 discharge may be suspended with a view to restoration to 
 duty by remission thereof should the conduct of the offender 
 v\ T arrant. There are now additional means of saving men 
 to the colors men whose offenses are thoughtless acts due 
 to youth or inexperience or committed under some special 
 stress, and for these reasons have in them less of the element 
 of culpability. Supplementing these methods is the estab- 
 lishment of disciplinary organizations at the United States 
 Disciplinary Barracks, where the offenders of this class who 
 desire reenlistment or restoration may receive an intensive 
 practical training to fit them for efficient service from the 
 moment of rejoining. 
 
 These periods of confinement are graduated so as to pre- 
 vent inequalities of punishment for like degrees of culpabil- 
 ity and are sufficient, it is believed, to meet the ends of pun- 
 ishment where restoration to duty is not in contemplation. 
 Where restoration is in contemplation, as in case of purely 
 military offenders, including deserters, the period of con- 
 finement imposed is, under the new policy, in practical effect 
 the maximum of an indeterminate sentence. In other words, 
 the period for which the offender is held depends entirely 
 upon himself. With good conduct and proper progress to- 
 ward reform evidencing efficiency in training and fitness 
 to resume service relations the sentence of confinement ter- 
 minates and the honorable status of duty with the colors is 
 resumed. 
 
 While it is the effect of this policy to mitigate the condi- 
 tion of the peace deserter who desires to redeem his record 
 and earn an honorable restoration to duty with the colors, 
 
 265 
 
If 340 CHAPTER xm. 
 
 it carries no substantial mitigation as to other classes of 
 deserters. Experience has not thus far demonstrated the 
 wisdom of any change in the policy of severe punishment 
 for this latter class. An engagement for military service 
 has little in common with an ordinary private contract for 
 personal service, and the fact that an individual may aban- 
 don such a contract with only minor consequences to himself 
 furnishes no suggestion that a corresponding rule may be 
 properly adopted in the Army. Nor does the fact that the 
 early requirement of the common law that a call to civil 
 office or civil employment under the Government could not 
 be disregarded by the citizen, nor the obligations of such 
 office or employment be laid down at his will, no longer 
 obtains, furnish any such suggestion. An engagement for 
 military service creates a special status, and many obliga- 
 tions flow from that status which are not obligations of the 
 citizen in the civil service of the Government or under a 
 private contract for personal service. Other closely related 
 considerations inherent in the nature of military service sup- 
 port this view. The Army is an emergent arm of the public 
 service which the Nation holds ready for a time of great 
 peril. Military service is an obligation which every citizen 
 owes the Government. It is settled law that such service 
 may be compelled, if necessary, by draft. Nor is the obli- 
 gation of the soldier who volunteers for a fixed period dif- 
 ferent from that of the drafted soldier. By his act of volun- 
 teering he consecrates himself to the military service. His 
 engagement, supported by an oath of allegiance, is that the 
 Nation may depend upon him for such service during the 
 fixed period, whatever may be the emergency. When this 
 engagement is breached a high obligation to the Nation is 
 disregarded, a solemn oath of allegiance is violated, and 
 the Government is defrauded in the amount of its outlay 
 incident to inducting the soldier into the military service, 
 training, clothing, and caring for him while he remains in 
 that service, and transporting him to the station from which 
 he deserts. Desertion is thus seen to be, not simply a breach 
 of contract for personal service, but a grave crime against 
 the Government; in time of war perhaps the gravest that 
 
 266 
 
COURTS-MABTIAL PUNISHMENT. If 341 
 
 a soldier can commit^ and at such times punishable with 
 death. These facts furnish ample justification for a con- 
 tinuance of the policy of severe punishment for the offense 
 of desertion in time of peace, subject only to the qualification 
 that it should not be severe to the degree of barring an 
 honorable restoration to duty of the thoughtless, young, or 
 inexperienced offenders who desert and who, on return, 
 manifest a desire to atone for their desertions and qualify 
 themselves in character and training for such restoration 
 by service in the disciplinary battalions and companies now 
 organized at the United States Disciplinary Barracks. 
 
 341. SEGREGATION OP PKISONERS. It is the policy of the 
 War Department to separate, so far as practicable, general 
 prisoners co/nvieted of offenses punishable by penitentiary 
 confinement from general prisoners convicted of purely mili- 
 tary offenses or- of misdemeanors in connection with purely 
 military offenses. In furtherance of this policy, reviewing 
 authorities will designate a penitentiary as the place of con- 
 finement of general prisoners sentenced to be confined for 
 more than one year according to the rules laid down in Sec- 
 tion II, supra, except in individual cases in which the proved 
 circumstances show that the holding of the prisoners so 
 convicted in barracks associations with misdemeanants and 
 military offenders will not be to the detriment of the latter. 
 Instructions will be issued from time to time by the War 
 Department to commanders having general court-martial 
 jurisdiction regarding the place of confinement for general 
 prisoners sentenced to confinement in penitentiaries. 
 
 342. ADAPTATION OF PUNISHMENTS. In cases where the 
 punishment is discretionary the best interests of the service 
 and of society demand thoughtful application of the fol- 
 lowing principles : That because of the effect of confinement 
 upon the soldier's self-respect confinement is not to be 
 ordered when the interests of the service permit it to be 
 avoided; that a man against whom there is no evidence of 
 previous convictions for the same or similar offenses should 
 be punished less severely than oe who has offended re- 
 peatedly; that the presence or absence of extenuating or 
 aggravating circumstances should be taken into considera- 
 
 267 
 
If 342a ' '"CHAPTER "xm.' 
 
 tion in determining the measure of punishment in any case ; 
 that the maximum limits of punishment authorized are to 
 be applied only in cases in which, from the nature and cir- 
 cumstances of the offense and the general conduct of the 
 offender, severe punishment appears to be necessary to meet 
 the ends of discipline; and that in adjudging punishment 
 the court should take into consideration the individual char- 
 acteristics of the accused, with a view to determining the 
 nature of the punishment best suited to produce the desired 
 results in the case in question, as the individual factor in one 
 case may be such that punishment of one kind would serve 
 the ends of discipline, while in another case punishment of 
 a different kind would be required. As an instance of the 
 necessity for adapting punishment to the particular case 
 under consideration, it is to be noted that prior experience 
 with detention of pay by sentence of court-martial indicates 
 that this form of punishment, while not generally applicable, 
 w r as nevertheless found to be an effective means of restraint 
 and discipline for a considerable number of offenders. 
 
 342a. Same Subject Penitentiary Confinement. For exam- 
 ple, in accordance with the principles of the preceding para- 
 graph, by no means every offense that is legally punishable by 
 confinement in a penitentiary need be so punished in order to 
 uphold justice and discipline in the Army. The dividing line be- 
 tween offenses legally punishable by penitentiary confinement 
 and those which are not so punishable is necessarily, in many 
 cases, more or less arbitrary. For instance, the difference of a 
 single cent in the value of two articles stolen may make the 
 offense in one case grand larceny, legally punishable by peni- 
 tentiary confinement, and in the other case petty larceny not 
 legally punishable by confinement in such an institution. Ac- 
 cordingly, in considering the place of confinement to be desig- 
 nated, the reviewing authority should take into consideration 
 all of the circumstances, the nature of the offense, the offender's 
 age, his mental condition and development, and his prior civil 
 and military record, with a view to determining whether the 
 interests of justice and discipline demand confinement in a peni- 
 tentiary where such confinement may be legally directed, or 
 whether confinement in a disciplinary barracks would serve to 
 
 268 
 
COURTS-MARTIAL PUNISHMENT. ^f 343 
 
 vindicate the law and not violate the reformatory character of 
 the disciplinary barracks, or whether any other disposition 
 should be made of the case. 
 
 In the cases of youthful offenders, who have not exhibited 
 fixed criminal tendencies and whose offenses are not of such a 
 character as to endanger the future of the disciplinary barracks 
 as a reformatory institution, the propriety of designating the 
 disciplinary barracks, instead of a penitentiary, as the place of 
 confinement should always be carefully considered. 
 
 343. Relative severity of punishments. The usual punish- 
 ments imposed upon soldiers are the following, beginning 
 with the le.^st severe : 
 
 (1) Detention of pay, 
 
 (2) Forfeiture of pay, 
 
 (3) Reduction, 
 
 (4) Ha^d labor without confinement, 
 
 (5) Confinement at hard labor, and 
 
 (6) Dishonorable discharge. 
 
 In the absence of evidence of two or more previous convic- 
 tions, a minor offense, the nature of which appears to de- 
 mand punishment by hard labor, should ordinarily be pun- 
 ished by hard labor without confinement, rather than by con- 
 finement at hard labor. For offenses properly punishable by 
 detention of pay, forfeiture of pay, reduction, or hard labor 
 without confinement, those forms of punishment should, as a 
 rule, be resorted to before confinement at hard labor is 
 imposed. 
 
 343a. Limits of punishments upon reheari^igs. In determining 
 whether or not a punishment adjudged upon a rehearing is in ex- 
 cess of or more severe than a punishment adjudged at the orig- 
 inal hearing within the meaning of A. W. 50Vi, reviewing 
 authorities will be guided by the following, none of fche punish- 
 ments enumerated in any one of the following groups to be re- 
 garded as in excess of or more severe than the first punishment 
 mentioned in the same group : 
 
 WHEN ACCUSED IS AN OFFICER. 
 GROUP A. 
 
 (1) Death. 
 
 (2) All other legal punishments. 
 
*f 34 3a CHAPTER xiii. 
 
 GROUP , 
 
 (1) Dismissal with Confinement at Hard Labor. 
 
 (2) Dismissal. 
 
 (3) Loss of rank or suspension from rank, command, or duty, 
 and fine or forfeiture not in excess of what accused's pay would 
 have been during the period of confinement provided in original 
 sentence and confinement to limits of posts or reservation for 
 period not in excess of period of confinement provided in original 
 sentence and reprimand or admonition; or any one or more of 
 said punishments. 
 
 GROUP C. 
 
 (1) Dismissal. 
 
 (2) Loss of rank or suspension from rank, command, or duty, 
 and fine or forfeiture not to exceed half of one year's pay of the 
 accused and confinement to limits of posts or reservation not to 
 exceed six months and reprimand or admonition; or any one or 
 more of said punishments. 
 
 GROUP D. 
 
 (1) Loss of rank. 
 
 NOTE. This punishment varies so much that its equivalents can 
 not be stated in the abstract. 
 
 GROUP B. 
 
 (1) Suspension from Eank, Command, or Duty with Loss of 
 Pay or Part of Pay. 
 
 (2) Fine or forfeiture not in excess of loss of pay provided in 
 original sentence and confinement to limits of post or reservation 
 for period not exceeding period of suspension adjudged in origi- 
 nal sentence and reprimand or admonition; or any one or more 
 of said punishments. 
 
 GROUP F. 
 
 (1) Suspension from Bank, Command, or Duty without Loss 
 of Pay. 
 
 (2) Confinement to limits of posts or reservation for period not 
 exceeding period of suspension adjudged in original sentence and 
 reprimand or admonition; or any one or more of said punish- 
 ments. 
 
 270 
 
COURTS-MARTIAL PUNISHMENT. ^f 343a 
 
 GROUP G. 
 
 (1) Fine or Forfeiture of Pay. 
 
 (2) Confinement to limits of post or reservation for such num- 
 ber of months as shall result from dividing the fine or forfeiture 
 adjudged in the original sentence by one-fourth of the monthly 
 pay of the accused and reprimand or admonition; or any one or 
 more of said punishments. 
 
 GROUP II. 
 
 (1) Confinement to Limits of Post or Reservation. 
 
 (2) Reprimand or admonition. 
 
 GROUP I. 
 
 (1) Reprimand. 
 
 (2) Admonition. 
 
 NOTE. The foregoing scale applies also to warrant officers, mem- 
 bers of the Army Nurse Corps, and field clerks, so far as practicable. 
 
 WHEN ACCUSED IS A SOLDIEB. 
 GROUP A. 
 
 (1) Death. 
 
 (2) All other legal punishments. 
 
 GROUP B. 
 
 (1) Dishonorable Discharge with Confinement at Hard Labor. 
 
 (2) Dishonorable discharge. 
 
 (3) Reduction and deprivation of rating and deprivation of 
 rights and privileges arising from certificate of eligibility to 
 promotion, and confinement at hard labor or hard labor without 
 confinement for period not exceeding period of confinement pro- 
 vided in original sentence, and forfeiture or detention of pay 
 not in excess of what accused's pay would have been for period 
 of confinement in original sentence, and reprimand or admoni- 
 tion; or any one or more of said punishments. 
 
 GROUP C. 
 
 (1) Dishonorable Discharge. 
 
 (2) Reduction and deprivation of rating and deprivation of 
 rights and privileges arising from certificate of eligibility to 
 
 271 
 
^[ 34 3a CHAPTER xiii. 
 
 promotion, and confinement at hard labor or hard labor without 
 confinement for a period not exceeding six months, and forfei- 
 ture or detention of pay for a period not exceeding six months, 
 and reprimand or admonition ; or any one or more of said punish- 
 ments. 
 
 GROUP D. 
 
 (1) Reduction or Deprivation of Eating or Both of Said Pun- 
 ishments. 
 
 (2) Forfeiture or detention of pay for period not in excess of 
 three months and reprimand or admonition. 
 
 GROUP E. 
 
 (1) Confinement at Hard Labor. 
 
 (2) Hard labor without confinement. (See table of equiva- 
 lents in Executive order.) 
 
 (3) Forfeiture or detention of pay. (See table of equivalents 
 in Executive order.) 
 
 (4) Reduction and deprivation of rating if period of confine- 
 ment in original sentence exceeded three months. 
 
 (5) Reprimand or admonition. 
 
 GROUP F. 
 
 (1) Hard Labor without Confinement. 
 
 (2) Confinement at hard labor, (See table of equivalents in 
 Executive order.) 
 
 (3) Forfeiture or detention of pay. (See table of equivalents 
 in Executive order.) 
 
 (4) Reprimand or admonition. 
 
 GROUP G. 
 
 (1) Forfeiture of Pay. 
 
 (2) Confinement at hard labor or hard labor without confine- 
 ment. (See table of equivalents in Executive order.) 
 
 (3) Detention of pay. (See table of equivalents in Executive 
 order.) 
 
 (4) Reprimand or admonition. 
 
 272 
 
COURTS-MARTIAL, -PUNISHMENT. ^ 346 
 
 GROUP H. 
 
 (1) Detention of Pay. 
 
 (2) Confinement at hard labor or hard labor without confine- 
 ment or forfeiture of pay. (See table of equivalents in Execu- 
 tive order.) 
 
 (3) Reprimand or admonition. 
 
 GROUP I. 
 
 (1) Reprimand. 
 
 (2) Admonition. 
 
 SECTION IV. 
 
 PROHIBITED PUNISHMENTS. 
 
 344. BY STATUTE. Cruel and unusual punishments of every 
 kind, including flogging, branding, marking, or tattooing on 
 the body, are prohibited. (A. W. 41.) 
 
 345. BY CUSTOM AND REGULATIONS. Many punishments 
 formerly sanctioned have now, under a more enlightened 
 spirit of penology, become so obsolete as to be effectually 
 prohibited by custom without the necessity of regulations; 
 among these are carrying a loaded knapsack, wearing irons 
 (both handcuffs and leg irons these are now used only in 
 exceptional cases for the purpose of preventing escape and 
 not as a punishment), shaving the head, placarding, pillory, 
 stocks, and tying up by the thumbs. To impose military 
 duty in any form as a punishment must tend to degrade it, 
 to the prejudice of the best interests of the service. Such 
 punishments, therefore, as imposing tours of guard duty or 
 requiring a soldier to sound all calls at the post for a cer- 
 tain period are forbidden. 'Solitary confinement on a bread 
 and water diet and the placing of a prisoner in irons are 
 regarded as means of enforcing prison discipline. They will 
 not be imposed as a punishment by a court-martial. 
 
 SECTION Y. 
 DEATH COWARDICE FRAUD. 
 
 346. DEATH PENALTY. Xo person shall, by general court- 
 martial, be convicted of an offense for which the death 
 penalty is made mandatory by law, nor sentenced to suffer 
 
 21358 20 18 
 
 273 
 
<[[ 846 CHAPTER xm. 
 
 death, except by the concurrence of all of the members of 
 said court-martial present at the time the vote is taken. Where 
 the death penalty is not mandatory but is discretionary, a 
 conviction may be determined by a two-thirds vote of those 
 members present at the time the vote is taken; but all of the 
 members present at the time the vote is taken on the sentence, 
 must concur in imposing the death sentence. 
 
 Courts-martial have no power to impose the death penalty, 
 except for offenses expressly made punishable by death by 
 the Articles of War. (A. W. 43.) A court-martial, in im- 
 posing the sentence of death, should not designate the time 
 and place for its execution, such designation not being 
 within its province, but pertaining to that of the reviewing 
 or confirming authority. If it does so designate, this part 
 of the sentence may be disregarded and a different time and 
 place be fixed by the reviewing or confirming authority. 
 (Digest, p. 165, XCVI, B.) If the designated day passes 
 without execution, the same authority or his superior may 
 name another day. Death by hanging is considered more 
 ignominious than death by shooting and is the usual method 
 of execution designated in the case of spies, of persons guilty 
 of murder in connection with mutiny, or sometimes for de- 
 sertion in the face of the enemy; but in case of a purely 
 military offense, as sleeping on post, such sentence when 
 imposed is usually "to be shot to death with musketry." 
 Hanging is the proper method of executing a death sentence 
 when imposed for violation of A. W. 92. For the sake of 
 example and to deter others from committing like offenses, 
 the death sentence may, when deemed advisable, be executed 
 in the presence of the troops of the command. 
 
 347. COWARDICE FRAUD ACCESSORY PENALTY. When an 
 officer is dismissed from the service for cowardice or fraud, 
 the crime, punishment, name, and place of abode of the 
 delinquent shall be published in the newspapers in and 
 about the camp and in the State from which the offender 
 came or where he usually resides ; and after such publication 
 it shall be scandalous for an officer to associate with him. 
 (A. W. 44.) 
 
 The terms " cowardice " and " fraud " as employed in this 
 article refer mainly to the offenses made punishable by A. 
 
 274 
 
COURTS-MARTIAL PUNISHMENT. ^ 348 
 
 W. 75 and 94. With these, however, may be regarded as 
 included all offenses in which fraud or cowardice is neces- 
 sarily involved, though the same be not expressed in terms 
 in the charge or specification. (Digest, p. 166, C, A.) The 
 publication throughout the United States in press dispatches 
 of " the crime, punishment, name, and place of abode " of 
 the accused is a sufficient compliance with the article. (See 
 Digest, p. 167, C, B.) 
 
 SECTION VI. 
 MAXIMUM LIMITS. 
 
 348. BY WHOM PRESCRIBED WHEN APPLICABLE. When- 
 ever the punishment for a crime or offense made punishable 
 by these articles is left to the discretion of the court-martial, 
 the punishment shall not exceed such limit as the President 
 may from time to time prescribe: Provided, that in time of 
 peace the period of confinement in a penitentiary shall in no 
 case exceed the maximum period prescribed by the law which, 
 under article 42 of these articles, permits confinement in a 
 penitentiary, unless in addition to the offense so punishable 
 under such law the accused has been convicted at the same time 
 of one or more other offenses. (A. W. 45.) 
 
 275 
 
EXECUTIVE ORDER. 
 
 MAXIMUM PUNISHMENT. 
 
 276 
 
349. Executive order, The following Executive order becomes 
 operative on February 4, 1921. (See, as to offenses prior to that 
 
 date, Article IX of the order.) 
 
 THE WHITE HOUSE, 
 
 December 10, 1920. 
 
 Under authority of Article of War No. 45, as amended by an act of 
 Congress approved June 4, 1920, the following maximum limits of 
 punishments of soldiers are prescribed: 
 
 AETICLE I. 
 
 Article of War. f 
 
 Oflenses. 
 
 Punishments. 
 
 Dis- 
 honor- 
 able dis- 
 charge, 
 forfeit- 
 ure of all 
 pay and 
 allow- 
 ances 
 due and 
 4j become 
 due. 
 
 Confine- 
 ment at 
 hard labor, 
 not to ex- 
 exceed 
 
 For- 
 feiture 
 of two- 
 thirds 
 pay 
 per 
 month, 
 not 
 to ex- 
 ceed 
 
 Forfeit- 
 ure of 
 
 pay. 
 
 not 
 to ex- 
 ceed 
 
 
 
 Months. 
 
 i 
 
 Q 
 
 Months. 
 
 | 
 
 54 
 
 m 
 
 c 
 
 58 
 
 
 
 e 
 
 c 
 c 
 
 9 
 
 1 
 
 
 
 
 
 Enlistment, fraudulent: 
 Procured by means of willful misrepre- 
 sentation or concealment of a fact in re- 
 gard to a prior enlistment or discharge, 
 or in regard to a conviction of a civil or 
 military offense, or in regard to imprison- 
 ment under sentence of a court. 
 Other cases of 
 
 Yes 
 
 
 6 
 
 
 
 
 Yes 
 
 
 3 
 
 
 
 
 Attempting to desert: 
 After not more than six months in service. . 
 After more than six months in service 
 In execution of a conspiracy or in the 
 presence of an unlawful assemblage 
 which the troops may be opposing. 
 Desertion: 
 Terminated by apprehension 
 Not more than 6 months in service at 
 time of desertion. 
 More than 6 months in service at time 
 of desertion. 
 Terminated by surrender- 
 After absence of not more than 60 days. 
 After absence of more than 60 days . . . 
 
 Yes 
 
 
 fi 
 
 
 
 
 Yes 
 Yes 
 
 3 
 
 9 
 
 .... 
 
 
 
 
 
 Yes 
 
 1 
 
 
 
 
 
 Yes 
 
 ?. 
 
 
 
 
 
 Yes... 
 
 
 fl 
 
 
 
 
 Yes .... 
 
 1 
 
 
 
 
 
 In the execution of a conspiracy or in 
 the presence of an unlawful assem- 
 blage which the troops may be oppos- 
 ing. 
 Advising another to desert 
 
 Yes 
 
 | 
 
 
 
 
 
 
 
 | 
 
 
 6 
 
 
 Assisting knowingly, or persuading another to 
 desert. 
 Absence without leave: 
 From command, quarters, station, or 
 camp 
 For not more than 60 days, for each day 
 or fraction of a day of absence. 
 For more than 60 days 
 
 Yes 
 
 1 
 
 
 
 
 
 
 
 
 3 
 
 
 2 
 
 Yes 
 
 
 A 
 
 
 
 From guard 
 
 
 
 
 
 
 15 
 
 For more than 1 hour.. . 
 
 
 
 3 
 
 
 3 
 
 * The letter "c" in the margin indicates thit the former limit of punishment is changed 
 by this order. 
 
 2T7 
 
EXECUTIVE ORDER. 
 
 Articles of War. 
 
 Offenses. 
 
 * 
 
 Punishments. 
 
 Dis- 
 honor- 
 able dis- 
 charge, 
 forfeit- 
 ure of all 
 pay and 
 allow- 
 ances 
 due and 
 to become 
 due. 
 
 Confine- 
 ment at 
 hard labor, 
 not to ex- 
 exceed 
 
 For- 
 feiture 
 of two- 
 thirds 
 pay 
 per 
 month, 
 not 
 to ex- 
 ceed 
 
 Forfeit- 
 ure of 
 pay, 
 
 not 
 to ex- 
 ceed 
 
 
 
 Months. 
 
 1 
 ft 
 
 Months. 
 
 1 
 
 62 
 63 
 65 
 
 Failing to repair at the fixed time to the prop- 
 erly appointed place of assembly for, or 
 place for: 
 
 
 
 
 
 
 Z 
 
 Brill 
 
 Fatigue 
 
 
 Gallerv practice 
 
 Guard mounting 
 
 
 Inspection 
 
 Instruction 
 
 
 
 ? 
 
 
 2 
 
 Parade 
 
 Prison guard 
 
 Review 
 
 School 
 
 Stable duty 
 
 Target practice 
 
 March ' 
 
 Reveille or retreat roll call 1 
 
 
 
 
 1 
 
 5 
 
 2 
 
 Leaving without permission the properly 
 appointed place of assembly for, or place for: 
 Athletic exercise 
 
 
 
 
 
 
 Drill 
 
 Fatigue 
 
 Field exercise .... 
 
 Gallery practice 
 
 Guard mounting 
 
 Horse exercise 
 
 Inspection. 
 
 Instruction 
 
 Muster 
 
 
 
 
 
 
 Parade 
 
 Prison guard .... 
 
 Review 
 
 School 
 
 Stable duty 
 
 Target practice . ' . 
 
 Reveille or retreat roll call 
 
 Using contemptuous or disrespectful words 
 against the President, Vice President, etc. 
 Behaving with disrespect toward his superior 
 officer. 
 Attempting to strike or attempting otherwise 
 to assault a warrant officer or a noncommis- 
 sioned officer in the execution of his office. 
 Behaving in an insubordinate or disrespectful 
 manner toward a warrant officer or a non- 
 commissioned officer in the execution of his 
 office. 
 Disobedience, willful, of the lawful order of a 
 warrant officer or a noncommissioned officer 
 in the execution of his office. 
 Striking or otherwise assaulting a warrant 
 officer or a noncommissioned officer in the 
 execution of his office. 
 
 Yes 
 
 i 
 
 
 
 
 
 
 fi 
 
 
 6 
 6 
 
 2 
 
 6 
 
 
 
 
 6 
 
 
 
 
 
 ? 
 
 
 
 
 
 fi 
 
 
 
 Yes 
 
 i 
 
 
 
 
 
 
 
 
 
 
 278 
 
EXECUTIVE ORDER. 
 
 Articles of War. 
 
 Offenses. 
 
 Punishments. 
 
 Dis- 
 honor- 
 able dis- 
 charge, 
 forfeit- 
 ure of all 
 pay and 
 allow- 
 ances 
 due and 
 to become 
 due. 
 
 Confine- 
 ment at 
 hard labor, 
 not to ex- 
 exceed 
 
 For- 
 feiture 
 of two- 
 thirds 
 pay 
 per 
 month, 
 not 
 to ex- 
 ceed 
 
 Forfeit- 
 ure of 
 pay, 
 not 
 to ex- 
 ceed 
 
 
 
 Months. 
 
 OT 
 
 % 
 
 
 Months. 
 
 1 
 
 ft 
 
 68 
 
 c 
 
 c 
 c 
 
 69 
 73 
 
 83 
 
 84 
 
 Threatening to strike or otherwise assault, or 
 using other threatening language toward a 
 warrant officer or a noncommissioned officer 
 in the execution of his office. 
 Using insulting language toward a warrant offi- 
 cer or a noncommissioned officer in the exe- 
 cution of his office. 
 Drawing a weapon upon a nurse, band leader, 
 warrant officer, field clerk, or a noncommis- 
 sioned officer quelling a quarrel, fray, or dis- 
 order. 
 Refusing to obey a nurse, band leader, warrant 
 officer, field clerk, or a noncommissioned offi- 
 cer quelling a quarrel, frav, or disorder. 
 Threatening a nurse, band leader, warrant offi- 
 cer, field clerk, or a noncommissioned officer 
 quelling a quarrel, fray, or disorder. 
 
 
 
 4 
 
 
 4 
 2 
 
 
 
 
 2 
 
 
 
 Yes 
 
 3 
 
 
 
 
 Yes 
 
 1 
 
 
 
 
 
 
 
 fi 
 
 
 6 
 
 1 
 
 
 
 
 1 
 
 
 
 Escaping from confinement 
 
 Yes .. 
 
 1 
 
 
 
 
 Releasing, without proper authority, a prisoner 
 committed to his charge. 
 Suffering a prisoner committed to his charge to 
 escape: 
 
 Yes 
 
 1 
 
 
 
 
 
 Yes 
 
 1 
 
 
 
 
 
 
 
 
 6 
 
 
 6 
 
 3 
 6 
 
 
 Suffering, through neglect, military property to 
 be damaged, lost, spoiled, or wrongfully dis- 
 posed of: 
 O f a value of $20 or less 
 
 
 
 T 
 
 
 
 Of a value of $50 or less and more than $20 . 
 Of a value of more than $50 
 
 
 
 ft 
 
 
 
 Yes 
 
 1 
 
 
 
 
 Suffering, willfully, military property to be 
 damaged, lost, spoiled, or wrongfully dis- 
 posed of: 
 Of a value of $20 or less 
 
 
 
 6 
 
 
 6 
 
 
 Of a value of $50 or less and more than $20 . 
 Of a value of more than $50 
 
 Yes .. 
 
 
 6 
 
 
 
 Yes 
 
 2 
 
 
 
 
 
 Injuring or losing, through-neglect, horse, arms, 
 ammunition, accouterments, equipment, 
 clothing, or other property issued for use in 
 the military service, or items belonging to 
 two or more of said classes: 
 Of a value of $20 or less 
 
 
 
 3 
 
 
 3 
 6 
 
 
 Of a value of $50 or less and more than 820. 
 Of a value of more than $50 
 
 
 
 
 
 
 
 Yes 
 
 1 
 
 
 
 
 Injuring or losing, willfully, horse, arms, 
 ammunition, accouterments, equipment, 
 clothing, or other property issued for use in 
 the military service, or items belonging to 
 two or more of said classes: 
 Of a value of $20 or less. . . ... 
 
 
 
 6 
 
 
 6 
 
 
 Of a value of $50 or less and more than $20 . 
 Of a value of more than $50 
 
 Yes 
 
 
 6 
 
 
 
 Yes 
 
 ? 
 
 
 
 
 
 Selling or otherwise wrongfully disposing of 
 horse, arms, ammunition, accouterments, 
 equipment, clothing, or other property issued 
 for use in the military service, or items belong- 
 ing to two or more of said classes: 
 Of a value of $20 or less 
 
 Yes... 
 
 
 6 
 
 
 
 
 Of a value of $50 or less and more than $20 . 
 
 Yes 
 
 1 
 
 
 
 
 
 Yes... 
 
 6 
 
 
 
 
 
 279 
 
EXECUTIVE ORDER. 
 
 Articles of War. ( 
 
 
 Punishments. 
 
 Offenses. 
 
 Dis- 
 honor- 
 able dia- 
 charge, 
 forfeit- 
 ure of all 
 pay and 
 allow- 
 ances 
 
 Confine- 
 ment at 
 Lard labor, 
 not to ex- 
 exceed 
 
 For- 
 feiture 
 of two- 
 thirds 
 
 P&7 
 per 
 month, 
 not 
 to ex- 
 ceed 
 
 Forfeit- 
 ure of 
 pay, 
 not 
 to ex- 
 ceed 
 
 ;o become 
 due. 
 
 {H 
 
 j 
 
 | 
 
 | 
 
 4 
 
 
 
 85 
 
 8Gc 
 
 90 
 
 93 
 c 
 c 
 
 Found drunk: 
 At formation for or at 
 Athletic exercise 
 
 
 
 
 
 
 20 
 6 
 
 Drill . . 
 
 Fatigue . .... 
 
 Field exercise 
 
 Gallery practice 
 
 Guard mounting 
 
 Horse exercise 
 
 Inspection 
 
 Instruction 
 March 
 
 
 
 
 
 
 Muster 
 
 Parade 
 
 Review 
 
 School. 
 
 Stable duty . . 
 
 Target practice 
 
 
 
 
 
 ft 
 
 
 8 
 
 On duty as 
 
 
 
 
 
 
 20 
 
 Company clerk .. .. ..... 
 
 Cook 
 
 T)iruTip room orderly 
 
 Farrier. . 
 
 Horseshoer 
 
 Kitchen police 
 
 Mechanic 
 
 Mess sergeant . 
 
 Yes. 
 Yes. 
 
 
 fi 
 
 
 
 Noncommissioned officer in charge of quar- 
 ters 
 
 Saddler 
 
 Stable sergeant . . 
 
 Supply sergeant 
 
 Wagoner . . ' 
 
 Found sleeping or drunk on post, sentinel 
 Leaving post before regularly relieved from, 
 sentinel. 
 Using a provoking or reproachful speech or 
 gesture to another. 
 Arson 
 
 1 
 
 
 
 
 
 3 
 
 
 3 
 
 
 Yes. 
 
 Yes. 
 Yes. 
 
 Yes. 
 
 Yes. 
 Yes. 
 
 Yes . 
 
 20 
 5 
 
 10 
 
 20 
 10 
 
 
 
 
 Assault: 
 With intent to do bodily harm. . 
 
 
 
 
 
 With intent to do bodily harm with a 
 dangerous weapon, instrument, or other 
 thing. 
 With intent to commit any felony except 
 murder or rape. 
 With intent to commit murder or rap* 
 Burphiry 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Embezzlement or larceny: 
 Of property of a value of $20 or Jess . 
 
 6 
 
 
 
 
 Of property of a value of $50 or less, and 
 more than $20. 
 Of property of a value of more than $50 ... 
 
 Yes 
 
 1 
 
 
 
 
 
 Yes 
 
 5 
 
 ... 
 
 ... 
 
 ... 
 
 ... 
 
 280 
 
EXECUTIVE OKDER. 
 
 Offenses. 
 
 Punishments. 
 
 Dis- 
 honor- 
 able dis- 
 charge, 
 forfeit- 
 ure of all 
 pay and 
 allow- 
 ances 
 due and 
 to become 
 due. 
 
 Confine- 
 ment at 
 hard labor, 
 not to ex- 
 exceed 
 
 For- 
 feiture 
 of two- 
 thirds 
 pay 
 per 
 month, 
 not 
 to ex- 
 ceed 
 
 Forfeit- 
 ure of 
 pav, 
 not 
 to ex- 
 ceed 
 
 E 
 
 Months. 
 
 1 
 
 Months. 
 
 1 
 
 
 
 Forgery ... ........ 
 
 Yes... 
 
 5 
 
 
 
 
 
 
 Yes .. 
 
 in 
 
 
 
 
 
 Manslaughter: 
 Involuntary, in the commission of an un- 
 lawful act not amounting to a felony, or 
 in the commission of a lawful act which 
 might produce death, in an unlawful 
 manner, or without due caution or cir- 
 cumspection. 
 Voluntary, upon a sudden quarrel or heat 
 of passion. 
 Perjury 
 
 Yes 
 
 3 
 
 
 
 
 
 Yes... 
 
 10 
 
 
 
 
 
 Yes... 
 
 5 
 
 
 
 
 
 Robbery 
 
 Yes... 
 
 10 
 
 
 
 
 
 Sodomy . . 
 
 Yes... 
 
 5 
 
 
 
 
 
 Forging or counterfeiting a signature, making 
 a false oath, and offenses related to either of 
 these. 
 Other cases: 
 When the amount involved is $20 or less . 
 
 Yes . 
 
 ft 
 
 
 
 
 
 Yes . 
 
 
 6 
 
 
 
 
 When the amount involved is $50 or less, 
 and more than S20. 
 When the amount involved is more than $50. 
 Abandoning gnard, by member thereof 
 
 Yes 
 
 1 
 
 
 
 
 
 Yes 
 
 fi 
 
 
 
 
 
 
 
 6 
 
 
 6 
 3 
 3 
 
 
 4 busing ft piiblic afii'iTval 
 
 
 
 a 
 
 
 
 Allowing a prisoner to receive or obtain intoxi- 
 cating liquor. 
 Appearing in civilian dothing without author- 
 ity. 
 Appearing in unclean uniform, or not in pre- 
 scribed uniform, or in uniform worn other- 
 wise than in manner prescribed. 
 Assault... 
 
 
 
 3 
 
 
 
 
 
 
 
 10 
 
 
 
 i 
 
 
 1 
 3 
 
 
 
 R 
 
 
 
 Assault and battery 
 
 
 
 6 
 
 
 6 
 
 
 Attempting to escape from confinement 
 
 Yes 
 
 
 B 
 
 
 
 Attempting to strike or attempting otherwise 
 to assault a sentinel in the execution of his 
 duty. 
 Behaving in an insubordinate or disrespectful 
 manner toward a sentinel in the execution of 
 his duty. 
 Breach of restriction (other than quarantine) 
 to command, quarters, station, or camp. 
 Carrying a concealed weapon 
 
 
 
 6 
 
 
 6 
 
 
 
 
 1 
 
 
 1 
 
 
 
 
 1 
 
 
 1 
 
 3 
 3 
 
 
 
 
 3 
 
 
 
 Committing a nuisance ........... 
 
 
 
 K 
 
 
 
 Concealing," destroying mutilating, obliterat- 
 ing, or removing willfully and unlawfully a 
 public record, or taking and carrying away 
 a public record with intent to coneal, destroy, 
 mutilate, obliterate, remove, or steal the 
 same. 
 Conspiring to escape from confinement 
 Destroying willfully, public property: 
 Of a value of $20 or less 
 
 Yes 
 
 ^ 
 
 
 
 
 Yes 
 
 Yes 
 
 
 6 
 
 6 
 
 
 
 
 ff 
 
 Of a value of $50 or less, and more than $20. 
 
 Of a valjip nfmoro t^a^J $50 
 
 Yes 
 
 1 
 
 
 
 
 
 Yes 
 
 5 
 
 
 
 
 
 Discharging, through carelessness, a firearm.... 
 Disobedience, willful, of the lawful order of a 
 sentinel in the execution of his duty. 
 
 
 
 3 
 
 
 3 
 
 
 Yes . 
 
 1 
 
 
 
 
 
 
 
 
 
 
 281 
 
EXECUTIVE ORDER. 
 
 Articles of War. 1 
 
 Offenses. 
 
 Punishments. 
 
 Dis- 
 honor- 
 able dis- 
 charge, 
 forfeit- 
 ure of all 
 pay and 
 allow- 
 ances 
 due and 
 to become 
 due. 
 
 Confine- 
 ment at 
 hard labor, 
 not to ex- 
 ceed 
 
 For- 
 feiture 
 of two- 
 thirds 
 Pay 
 per 
 month, 
 not 
 to ex- 
 ceed 
 
 Forfeit- 
 ure of 
 Pay, 
 not 
 to ex- 
 ceed- 
 
 
 
 1 
 
 Months. 
 
 6 
 
 5 
 
 Months. 
 
 * 
 & 
 
 c 
 
 c 
 c 
 
 c 
 
 Disorderly in command, quarters, station, or 
 camp. 
 Disorderly under such circumstances as to 
 bring discredit upon the military service. 
 
 
 
 1 
 
 
 1 
 4 
 
 
 
 
 4 
 
 
 
 
 
 ? 
 
 
 2 
 3 
 
 6 
 
 
 Drunk and disorderly in command, quarters, 
 station, or camp. 
 : Drunk and disorderly under such circum- 
 stances as to bring discredit upon the mili- 
 tary service. 
 Drunk in command, quarters, station, or camp. 
 
 
 
 3 
 
 
 
 
 
 6 
 
 
 
 
 
 
 
 15 
 
 Drunk under such circumstances as to bring 
 discredit upon the military service. 
 
 
 
 1 
 
 
 3 
 3 
 
 6 
 3 
 
 3 
 
 
 
 s 
 
 
 
 Failing to obey a lawful order: 
 
 
 
 6 
 
 
 
 
 
 
 3 
 
 
 
 
 
 
 3 
 
 
 
 Failing to pay a just debt under such circum- 
 stances as to bring discredit upon the mili- 
 tary service. 
 False official report or statement knowingly 
 made: 
 By a noncommissioned officer . ..... 
 
 Yes... . 
 
 
 fi 
 
 
 
 
 
 3 
 
 
 3 
 
 1 
 
 
 
 
 
 1 
 
 
 
 False swearing 
 
 Yes 
 
 3 
 
 
 
 
 Gambling: 
 By a noncommissioned officer with a per- 
 son of lower military rank or grade. 
 In command, quarters, station, or camp 
 in violation of orders. 
 Indecent exposure of person ... 
 
 
 
 
 
 3 
 2 
 3 
 
 
 
 
 
 ? 
 
 
 
 
 3 
 
 
 Introducing a habit-forming narcotic drug into 
 command, quarters, station, or camp: 
 For sale 
 
 ?es... 
 
 ? 
 
 
 
 
 All other cases 
 
 es 
 
 1 
 
 
 
 
 
 Introducing intoxicating liquor into com- 
 mand, quarters, station, or camp: 
 
 
 
 fi 
 
 
 6 
 3 
 3 
 
 1 
 
 
 All other cises 
 
 
 
 3 
 
 
 
 Loaning money, either as principal or agent, 
 , at an usurious rate of interest to another in 
 th military service. 
 Loitering or sitting down on duty by sentinel 
 
 
 
 
 
 
 
 
 1 
 
 
 
 Obtaining money or other property under false 
 pretenses: 
 When the amount obtained is $20 or less.. 
 
 Yes... 
 
 
 6 
 
 
 
 When the amount obtained is $50 or less 
 and more than $20. 
 When the amount obtained is more than 
 $50. 
 Refusing to submit to medical or dental 
 treatment. 
 Refusing to submit to a surgical operation 
 
 Yes 
 
 1 
 
 
 
 
 
 Yes 
 
 3 
 
 
 
 
 
 Yes.... 
 
 6 
 
 
 
 
 
 Yes. 
 
 1 
 
 
 
 
 
 Unnatural crimes 
 
 Yes 
 
 ft 
 
 
 
 
 
 Straggling 
 
 
 
 3 
 
 
 3 
 
 
 282 
 
EXECUTIVE OKDER. 
 
 Articles of War. 
 
 Offenses. 
 
 Punishments. 
 
 Dis- 
 honor- 
 able dis- 
 
 forfeft- 
 ureofall 
 pay and 
 allow- 
 ances 
 due and 
 to become 
 due. 
 
 Confine- 
 ment at 
 hard labor, 
 not to ex- 
 ceed 
 
 For- 
 feiture 
 of two- 
 thirds 
 Pay 
 per 
 month, 
 not 
 to ex- 
 ceed 
 
 Forfeit- 
 ure of 
 Pay, 
 not 
 to ex- 
 ceed 
 
 >< 
 
 I Months. 
 
 
 
 3 
 
 Months. 
 
 I 
 
 
 Striking or otherwise assaulting a sentinel in 
 the execution of his duty. 
 
 Yes... 
 
 1 
 
 
 
 Yes 
 
 i 
 
 
 
 
 
 Threatening to strike or otherwise assault or 
 using other threatening language toward a 
 sentinel in the execution of his duty. 
 Unclean accouterment, arm, clothing, equip- 
 ment, or other military property, found with. 
 Using insulting language toward a sentinel in 
 the execution of his duty. 
 Violation of condition of parole by general 
 prisoner. 
 
 
 
 4 
 
 
 4 
 
 
 
 
 1 
 
 
 1 
 3 
 
 
 
 
 T 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 
 ARTICLE II. 
 
 EQUIVALENTS. 
 
 Subject to the limitations set forth elsewhere In this order, sub- 
 stitutions for punishments specified in Article I thereof are authorized 
 at the discretion of the court, at the rates indicated in the following 
 table of equivalents : 
 
 Forfeiture. 
 
 Confinement 
 at 
 hard labor. 
 
 Detention. 
 
 Hard labor 
 without 
 confinement. 
 
 1 day's pay. 
 
 Iday. 
 
 1$ days' pay. 
 
 li days. 
 
 ARTICLE III. 
 
 GENERAL LIMITATIONS. 
 
 SECTION 1. A court shall not, by a single sentence which does not 
 include dishonorable discharge, adjudge against a soldier: 
 
 (a) Forfeiture of pay at a rate greater than two-thirds of his pay 
 per month. 
 
 (&) Forfeiture of pay in an amount greater than two-thirds of his 
 pay for six months. 
 
 (c) Confinement at hard labor for a period greater than six months. 
 
 SEC. 2. A court shall not, by a single sentence, adjudge against a 
 soldier : 
 
 283 
 
EXECUTIVE ORDER. 
 
 (a) Detention of pay at a rate greater tban two-thirds of his 
 pay per month. 
 
 (6) Detention of pay in an amount greater than two-thirds of his 
 pay for three months. 
 
 <c) Hard labor without confinement for a period greater than 
 three months. 
 
 ARTICLE IV. 
 
 NONCOMMISSIONED OFFICERS. 
 
 SECTION 1. No court shall adjudge confinement at hard labor or 
 hard labor without confinement against a noncommissioned officer 
 unless in the same sentence reduction to the grade of private shall 
 aLso be adjudged. 
 
 SEC. 2. Upon the conviction of a noncommissioned officer or a pri- 
 vate first class, of an offense or offenses for which confinement at 
 hard labor for a period of more than five days, authorized substitu- 
 tions considered, may be adjudged the court may, in addition to the 
 punishments otherwise authorized, adjudge reduction to the grade of 
 private, 
 
 ARTICLE V. 
 
 PREVIOUS CONVICTIONS. 
 
 SECTION 1. A general or special court shall, upon conviction of the 
 accused, be opened and shall thereupon ascertain whether there is 
 evidence of a previous conviction or convictions, which has been 
 referred to the court by the convening authority, and, if there be such 
 evidence, shall receive it. 
 
 SEC. 2. A court may, under the authority contained io section l of 
 this article, receive evidence, In the cases of officers, warrant officers, 
 members of the Army Nurse Corps, and field clerks, only of convictions 
 by court-martial of an offense or offenses committed by the accused 
 during his status as such officer, warrant officer, member of the Army 
 Nurse Corps, or field clerks, and within three years next preceding 
 the commission by him of an offense of which, he stands convicted 
 before the court. In the case of soldiers it will be limited to that 
 pertaining to convictions by courts-martial of an offense or offenses 
 committed during his current enlistment and within one year next 
 preceding the commission by him of an offense of which he stands 
 convicted before the court. These convictions may be proved only by 
 the records of the trials in which they were had, or by duly authenti- 
 cated copies of such records, or by duly authenticated copies of orders 
 promulgating such convictions. 
 
 ARTICLB VL 
 
 DISHONORABLE DISCHARGE. 
 
 SECTION L. A court may, upon his conviction of an offense or 
 offenses for none of which dishonorable discharge and forfeiture of 
 
EXECUTIVE ORDER. 
 
 all pay and allowances due and to become due Is, In Article I of this 
 order or by the custom of the service, authorized, upon proof of five 
 or more previous convictions, adjudge against a soldier, in addition 
 to the confinement at hard labor without substitution authorized in 
 said article or by the custom of the service for the offense or offenses 
 of which he is convicted, dishonorable discharge and forfeiture of all 
 pay and allowances due and to become due, and, in any such case in 
 which such confinement so authorized is less than three months, a 
 court may adjudge, in addition to such discharge and forfeiture, 
 confinement at hard labor for three months. 
 
 SEC. 2. A court may, upon his conviction upon one arraignment of 
 two or more offenses for none of which dishonorable discharge, con- 
 finement at hard labor and forfeiture of all pay and allowances due 
 and to become due is in Article I of this order or by the custom of 
 the service authorized, but the aggregate term of confinement at hard 
 labor for which, as authorized in said article or by the custom of the 
 service, without substitution, equals or exceeds six months, adjudge 
 against a soldier, in addition to the confinement at hard labor, without 
 substitution^ authorized in said article or by the custom of the service 
 for the offense or offenses of which he is convicted, dishonorable dis- 
 charge aacl forfeiture of all pay and allowances due and to become due, 
 
 ARTICLE VII. 
 
 EFFECT AND APPUCATIQN OF THIS OEDEB. 
 
 SECTION 1. This order prescribes the maximum limit of punishment 
 for each of the offenses therein specified, and thus indicates an ap- 
 propriate punishment for an offense which is attended by aggravating 
 circumstances. Evidence of previous convictions admitted under Ar- 
 ticle V of this order may always be considered in determining the 
 proper measure of punishment ; but evidence of previous convictions of 
 offenses materially less grave than the offense or offenses for which 
 sentence is to be adjudged is not to be regarded as in itself justifying 
 a sentence of maximum severity. In every case in which the pre- 
 scribed or customary maximum penalty exceeds confinement at hard 
 labor or forfeiture of pay for 10 days and in which the offense is 
 not attended by aggravating circumstances the punishment will be 
 graded down according to the circumstances of the offense ; and if 
 for any reason the court-martial fails so to grade down the punish- 
 ment, it will be the duty of the reviewing authority to do so. 
 
 SEC. 2. Offenses not herein provided for remain punishable as au- 
 thorized by statute or the custom of the service ; but, in cases for which 
 maximum punishments are not prescribed, courts will be guided by the 
 limits of punishment prescribed for closely related offenses. 
 
 SEC. 3. Dishonorable discharge, in itself a severe punishment, should 
 be adjudged and approved only when it is clear that the accused should 
 be separated from the service or that he should be required to undergo 
 a period of reformatory discipline before he can again be permitted to 
 
EXECUTIVE ORDER. 
 
 serve In an organization composed of honorable men. When the ac- 
 cused is relatively young and his record, except for the offense of 
 which he stands convicted, is good, the reviewing authority should, in 
 the exercise of his sound discretion, suspend the execution of the dis- 
 honorable discharge, to the end that the offender may have an oppor- 
 tunity to redeem himself in the military service; but he should not 
 suspend the execution of the dishonorable discharge in any case of 
 conviction of an offense involving that degree of moral turpitude which 
 disqualifies for further military service. 
 
 SEC. 4. The reviewing authority should suspend the whole of a 
 sentence when it appears to him that such action will promote the dis- 
 cipline of his command. 
 
 ARTICLE VIII. 
 
 ADMINISTRATIVE RULES. 
 
 SECTION 1. Hard labor without confinement, when imposed as a pun> 
 ishment, shall be performed in addition to other duties which fall to 
 the soldier, and no soldier shall be excused or relieved from any mili- 
 tary duty for the purpose of performing hard labor without confine- 
 ment which has been imposed as a punishment, but a sentence imposing 
 such punishment shall be considered as satisfied when the soldier shall 
 have performed hard labor during available time in addition to per- 
 forming his military duties. 
 
 SEC. 2. Pay detained pursuant to the sentence of a court-martial 
 will be detained by the Government until the soldier is discharged 
 from the service or mustered out of active Federal service. 
 
 ARTICLE IX. 
 
 DATE ON WHICH OPERATIVE. 
 
 This order shall become operative on February 4, 1921, as to 
 offenses committed on and after that date and as to criminal acts 
 committed prior to that date whose maximum punishment was not 
 prescribed in the Executive order of December 15, 1916. The Execu- 
 tive order of December 16, 1916, published in the Manual for Courts- 
 Martial, 1917, prescribing limits of punishment, shall remain operative 
 as to offenses committed before February 4, 1921, except as to criminal 
 acts whose maximum punishment has been decreased by this order, 
 which will not be followed by severer punishment than is hereinbefore 
 prescribed. 
 
 WOODROW WILSON. 
 
 THE WHITE HOUSE, 
 
 December 10, 1920. 
 
 286 
 
CHAPTER XIV. 
 
 COURTS-MARTIALPROCEDURE OF SPECIAL AND 
 SUMMARY COURTS AND PROCEDURE ON REVI- 
 SION. 
 
 Section I. courts-martial : -age. 
 
 350. Procedure - 287 
 
 Section II. Summary courts-martial: 
 
 351. Procedure (a) to (;) 287 
 
 Section III. Procedure n revision: 
 
 352. Of general or special courts-martial 289 
 
 353. Of summary courts-martial 290 
 
 SECTION I. 
 SPECIAL COURTS-MARTIAL. 
 
 350. PROCEDURE. The procedure of and before special 
 courts-martial will, so far as practicable, be identical with 
 that prescribed for general courts-martial. 
 
 SECTION II. 
 SUMMARY COURTS-MARTIAL. 
 
 351. PROCEDURE. (a) The summary court will be opened 
 at a stated hour daily, except Sundays, for the trial of such 
 cases as have been properly referred to it for trial. Trials 
 will be had on Sunday only when the exigencies of the 
 service make it necessary. 
 
 (b) The summary court will at the beginning of each 
 trial, in the order of such trial, give to and enter in the 
 proper place on the charges in the case a serial number. 
 
 (c) The procedure of and before summary courts-martial 
 will, so far as practicable, be identical with that prescribed 
 for general courts-martial. In the trial of a case the sum- 
 mary court represents both the Government and the accused. 
 He will see to it that the interests of both are fully con- 
 served. 
 
 21358 20 19 
 
 287 
 
Tf 351 CHAPTEK xrv. 
 
 (d) When the accused pleads guilty he will 
 
 (1) Explain to him (a) the elements constituting the 
 offense to which he has pleaded guilty, and (>) the max- 
 imum punishment therefor. 
 
 (2) Ask him whether he fully understands (a) that 
 by pleading guilty thereto he admits all the elements 
 of the crime or offense, and (>) that he may be punished 
 as explained to him. (For form see Appendix 9, infra.) 
 The report of trial will show that such explanation was 
 made, (See Appendix 12, infra.) 
 
 In any such case he will also, in the manner below stated, 
 make such impartial investigation as the doing of justice 
 may appear to require. 
 
 (e) In the absence of a plea of guilty he will make a full, 
 thorough, and impartial investigation of both sides of the 
 entire matter before him. On behalf of the accused he will 
 obtain the attendance of, swear, and examine such witnesses, 
 and will obtain such other evidence, documentary and other, 
 as may tend to disprove or negative guilt of such allega- 
 tions, or explain the acts or omissions charged, or show ex- 
 tenuating circumstances or establish good character. He 
 will permit the accused fully to examine all witnesses that 
 appear, and will, to the fullest extent, aid him in making 
 such examination. He will, in every proper way, encourage 
 and aid the accused in making his defense. In all cases he 
 will extend to the accused full opportunity to testify in 
 his own behalf and to make a statement in denial, in ex- 
 planation, or in extenuation, and will, before arriving at a 
 finding, assure himself, by inquiry of the accused, that he 
 has no further testimony to offer and no further statement 
 to make. 
 
 (f ) If the accused does not testify or make any statement in 
 his own behalf, the summary court will explain to him that he 
 may testify in hi* own behalf if he so desire, or may make an un- 
 sworn statement to the court in denial, in explanation, or in ex- 
 tenuation of the offense with which lie stands charged. (See 
 Porm 4, Appendix 9.) The report of trial will show that such 
 explanation was made. (Par. 215, infra.) 
 
 288 
 
COURTS-MARTIAL, PROCEDURE OF COURTS, ^f 352 
 
 (g) Having done so, he will, as soon as the trial is con- 
 cluded, arrive at his findings and record them in the proper 
 place on the charges. 
 
 (h) In the event of conviction he will consider the evi- 
 dence of previous convictions, if any, referred to him. 
 
 (i) In any case of conviction he will, as soon as trial is 
 concluded, impose sentence and record it in the proper place 
 upon the charges. 
 
 (j) In the event of a finding of not guilty of all the 
 charges and specifications he will record an acquittal instead 
 of a sentence, and immediately announce it in open court. 
 (A. W. 29.) 
 
 (k) Having recorded his findings and an acquittal or sen- 
 tence, he will subscribe his name, rank, and organization 
 as summary court, and then without delay transmit the 
 record of trial to the appointing authority. 
 
 SECTION III. 
 PROCEDURE ON REVISION. 
 
 352. OF GENERAL OR SPECIAL COURTS-MARTIAL. The pro- 
 cedure of general or special courts-martial when reconvened 
 for the purpose of revising their action or correcting their 
 records will in general be as indicated by the form of record 
 of proceedings on revision. (See Appendix 10 and par. 364, 
 infra.) The members of the court who participated in the 
 findings and sentence, together with the trial judge advocate 
 and assistant trial judge advocate, if any, and except in 
 those rare cases where a sentence which, under paragraph 332a, 
 supra, was not announced in open court is directed to be recon- 
 sidered by the court the defense counsel of the court and as- 
 sistant defense counsel, if any, will assemble and the court 
 will meet. It is not ordinarily necessary that the accused 
 or his individual counsel, if any, be present, but except in rare 
 cases there is no objection to their presence, and there may 
 be cases in which the presence of the accused and of his indi- 
 vidual counsel, if any, should be required by the court. The 
 trial judge advocate will read to the court the indorsement 
 of the appointing authority returning the record and di- 
 
 289 
 
If 353 CHAPTER XIV. 
 
 recting the reconvening, or if the record of trial by a 
 special court-martial has been returned to him orally for 
 revision, may state briefly to the court the views of the 
 appointing authority as communicated to him. The court 
 is then closed, considers and takes action upon the matter 
 before it, is opened, and adjourns. As the action so taken 
 is entirely corrective, a case will not be reopened by the 
 calling or recalling of witnesses or otherwise. 
 
 "No authority shall return a record of trial to any court- 
 martial for reconsideration of 
 
 (a) An acquittal; or 
 
 (b) A finding of not guilty of any specification; or 
 
 (c) A finding of not guilty of any charge, unless the 
 
 record shows a finding of guilty under a specifica- 
 tion laid under that charge, which sufficiently 
 alleges a violation of some article of war; or 
 
 (d) The sentence originally imposed, with a view to in- 
 
 creasing its severity, unless such sentence is less 
 than the mandatory sentence fixed by law for the 
 offense or offenses upon which a conviction has 
 been had. 
 
 And no court-martial, in any proceedings on revision, shall re- 
 consider its findings or sentence in any particular in which a 
 return of the record of trial for such reconsideration is herein- 
 before prohibited." (A. W. 40.) 
 
 353. OF SUMMARY COURTS-MARTIAL. What has been said 
 in respect to the procedure on revision by general or special 
 courts-martial will, so far as applicable, govern such proce- 
 dure by summary courts-martial. (See also par. 365, infra.) 
 
 290 
 
CHAPTER XV. 
 COURTS-MARTIALRECORDS OF TRIAL. 
 
 Section I. General courts-martial: Page. 
 
 354. Record required How authenticated 291 
 
 355. What the record is and by whom prepared 292 
 
 355a. Carbon copy of the record 292 
 
 356. Separate record 292 
 
 357. Contents of record 292 
 
 (a) In general 292 
 
 (&) In detail 293 
 
 (c) Record of revision 300 
 
 (d) Clemency recommendation 800 
 
 Section II. Special courts-martial: 
 
 358. Form and substance, (a) to (h) 800 
 
 359. Number of copies 801 
 
 360. Not indexed Exceptions 301 
 
 361. Briefed 802 
 
 361a. Recording testimony . 802 
 
 362. Bound _ 302 
 
 Section III. Summary courts-martial: 
 
 363. Form and substance 302 
 
 Section IV. Correction of records of trial: 
 
 364. Records of general or special courts-martial 802 
 
 365. Records of summary courts-martial 303 
 
 Section V. Disposition of records of trial: 
 
 366. By trial judge advocate 303 
 
 (a) Original record 803 
 
 (&) Carboncopy 803 
 
 867. By appointing authority 304 
 
 (a) Records of trial by general courts-martial 304 
 
 (&) Records of trial by special courts-martial 304 
 
 (c) Records of trial by summary courts-martial 805 
 
 (d) Reports of trial by summary courts-martial 305 
 Section VI. Loss of records of trial: 
 
 368. Action to be taken__ 805 
 
 SECTION I. 
 GENERAL COURTS-MARTIAL. 
 
 354. RECORD REQUIRED How AUTHENTICATED. Each gen- 
 eral court-martial shall keep a separate record of its pro- 
 ceedings in the trial of each case brought before it, and such 
 
 291 
 
Tf 355 CHAPTER XV. 
 
 record shall be authenticated by the signature of the presi- 
 dent and the trial judge advocate, bat in case the record can 
 not be authenticated by the president and the trial judge advo- 
 cate, by reason of the death, disability, or absence of either 
 or both of them, it shall be signed by a member in lieu of the 
 president, and by an assistant trial judge advocate, if there is 
 one, in lieu of the trial judge advocate, otherwise by another 
 member of the court. (A. W. 33.) 
 
 355. WHAT THE RECORD Is AND BY WHOM PREPARED. The 
 legal record of a court-martial is that record which is finally 
 approved and adopted by the court as a body and authenti- 
 cated by the signatures of its president and the trial judge 
 advocate. The record is prepared by the trial judge advo- 
 cate under the direction of the court, and in consultation with 
 the defense counsel of the court te whom it is subriitted (except 
 finding* and sentence- in cases where the same are not an- 
 nounced) for examination before signature, but the court as a 
 whole is responsible for it, and the instrument which it 
 approves as such is its record, however the same may have 
 been made up. It is immaterial to the sufficiency of a record 
 whether the same was kept or written by the trial fudge 
 advocate or by a clerk or a reporter acting under his 
 direction. 
 
 355a. Carbon Copy of the BecorxL Whenever a record of a 
 trial by general court-martial is to be typewritten by a reporter 
 (see Par. 117, swipra), a carbon copy will always be jnrepared, and, 
 if not desired by the accused: (see Par. 3'86 (b), infra), will be 
 forwarded, with, the record, to the reviewing authority. 
 
 356. SEPARATE HECORD. Where several cases are tried by 
 the same court the record of each case should not only be 
 complete and independent in itself and as much an entirety, 
 both in form and in substance, as if it were the only case 
 tried, but should contain all that is essential to an original 
 and independent official paper, and should be so perfected 
 as to leave no material detail to be supplied from any pre- 
 vious or other record. Where sentence is pronounced the 
 record should contain everything necessary to sustain it in 
 fact and in law. 
 
 357. CONTENTS OF BECom?. (&) In G-eneral. The record 
 of proceedings of a general court-martial will in each case 
 
 282 
 
COURTS-MARTIAL RECORDS OF TRIAL. ^ 357 
 
 show that all statutory requirements incident to that case 
 have been complied with ; will state a complete history of the 
 proceedings, regular and irregular, had in open court in that 
 case; and will set forth the material conclusions arrived at 
 in both open and closed sessions. The only acts of the court 
 or members not properly stated or set forth in the record 
 of trial are the discussions, votes, etc., had while the court 
 was closed for deliberation upon a challenge, or upon the 
 findings or sentence. Such discussions, etc., are no part of 
 the formal record, and, as to votes and opinions of particular 
 members upon a challe-nge or upon the Sndings or sentence, a 
 statement of these is precluded by A. W. 19. It is, in fact, 
 only the result of a deliberation in closed session that is to 
 be entered upon the record ; except that it must appear there- 
 from that such result was reached by the concurrence of the 
 number of votes required, as the ease may be, by the forty-third 
 article of war. 
 
 (b) In Detail. The record of proceedings in each case 
 will show, among other things, each in its proper place : 
 
 1. A brief of itself in the prescribed form. (See Appendix 
 10, infra.) 
 
 2. An index of itself in the prescribed form. (See Appen- 
 dix 10, infra.) 
 
 3. Whether a carbon copy of the record of trial was pre- 
 pared and, if so, the disposition made thereof. (See pars. 117 
 and 355.a, supra, and 366 (b), infra.) 
 
 4. The place and date of each meeting of the court. 
 
 5. The fact and hour of each meeting. 
 
 6. The number, date, source, and a copy of the order ap- 
 pointing the court, and of each amendatory order, each 
 stated at the proper place in the record of trial. 
 
 7. The fact of the presence und the name, rank, and or- 
 ganization of each member, including (and so designating) 
 the law member, if present, the trial judge advocate, the as- 
 sistant trial judge advocate, the defense counsel, the assistant 
 defense counsel, and the individual counsel for the accused, if 
 there be one, present at the assembling of the court, and at 
 any proceedings in revision. 
 
 8. The fact of the presence and the name, rank, and or- 
 ganization of each new member (including law member), new 
 
 293 
 
^f 357 CHAPTER XV. 
 
 trial judge advocate or assistant trial judge advocate, or new 
 defense counsel or assistant defense counsel, who begins to 
 participate therein, together with citation of the authority 
 for his so doing. 
 
 9. The fact of the absence and the name, rank, and or- 
 ganization of each member, including the law member, and of 
 the trial judge advocate or assistant trial judge advocate, or 
 defense counsel or assistant defense counsel, absent at the as- 
 sembling of the court or at any reassembly after recess or 
 adjournment, or at any proceedings in revision, together 
 with a statement of the reason for such absence. 
 
 10. That the accused was given opportunity to introduce 
 individual counsel, and the action thereon. 
 
 11. That the defense counsel and assistant defense counsel (or 
 at least one of them at all times) were present during all the 
 open sessions of the court in the case (unless excused at the ex- 
 press request of the accused, under par. 107 (b), supra, in 
 which case that fact will be stated in the record) ; and that the 
 accused and his individual counsel, if any, were present dur- 
 ing all the open sessions of the court in his case (except 
 during proceedings in revision in which it will be shown 
 whether or not they were present; and, in those rare cases in 
 which, under paragraph 352 supra, their presence is improper 
 during revision proceedings, the record will show their absence 
 during such proceedings). 
 
 12. The name (and if in the military service, grade, and or- 
 ganization) of each person who acted as reporter during any 
 part of the trial, and that each such person was sworn. 
 
 13. The name, rank, and organization of each member 
 present who, during the trial, was challenged by either party, 
 or who announced himself as, or was alleged to be, ineligible 
 to sit as a member, together with the alleged reason therefor, 
 and the action had thereon. 
 
 14. The name of each person, if any, who acted as inter- 
 preter during any part of the trial, and that each such 
 person was sworn. 
 
 15. That the accused was informed of his right to demand 
 a copy of the record of his trial, and was asked whether or 
 not he desired a copy thereof, together with his answer 
 thereto. 
 
 294 
 
COURTS- MARTIAL RECORDS OF TRIAL. ^f 357 
 
 16. That the order appointing the court and each amend- 
 atory order was read to the accused in court, and that he 
 was given opportunity to challenge each member of the 
 court (including an opportunity to exercise his right to one 
 peremptory challenge in accordance with the provisions of A. W. 
 18) who sat as such during any part of the trial in his case, 
 and the action had thereon. 
 
 17. That each member of the court who sat as such during 
 any part of the trial of the case and each trial judge advo- 
 cate and assistant trial judge advocate who appeared before 
 the court in the case was sworn. 
 
 18. The several charges and specifications upon which the 
 accused was arraigned, including the signature and the oath 
 thereto, by the person preferring them, required by A. W. 70. 
 
 19. The name, grade, and organization of the person who 
 subscribed the charges and swore to them. 
 
 20. The pleas of the accused to the several specifications 
 and charges upon which he was arraigned. 
 
 21. In a proper case, that the law member if present, or 
 otherwise the president, advised the accused of his legal right 
 to plead the statute of limitations. 
 
 22. That after a plea of guilty the law member if present, 
 or otherwise the president, in substance in the form prescribed 
 in Appendix 9, infra 
 
 (a) Explained to the accused (1) the elements con- 
 
 stituting the offenses to which he pleaded 
 guilty; and (2) the maximum punishment for 
 each such offense ; and also 
 
 (b) Asked the accused if he fully understood (1) that 
 
 by pleading guilty thereto he admitted all the 
 elements of the crime or offense; and (2) that 
 he may be punished as explained to him. 
 
 23. The answers of the accused thereto, and the action, if 
 an}*, had thereon. 
 
 24. That the trial judge advocate read to the court the 
 paragraphs of the Manual for Courts-Martial that set out 
 the gist of the offense or offenses charged (stating specifically 
 which paragraphs and parts of paragraphs were so read). 
 
 25. That the several witnesses were sworn. 
 
 295 
 
^[357 CHAPTER XV. 
 
 26. In a proper case, that the law member if present, or 
 otherwise the president, advised a witness ignorant of his 
 rights that he might decline to answer any question where 
 his answer might tend to incriminate him, or to answer any 
 question not material to the issue when such answer might tend 
 to degrade him. (A. W. 24.) 
 
 27. That each witness recalled to testify was cautioned, 
 upon being so recalled, that he was still under oath. 
 
 28. That, if the accused was sworn as a witness, he was 
 so sworn at his own request. 
 
 29. The questions propounded and the answers given by 
 each of the several witnesses, as nearly as possible in the 
 language used. 
 
 30. That the accused was given full opportunity to ex- 
 amine each witness called or recalled for the defense, and to 
 cross-examine each witness called or recalled by the prosecution 
 or by the court. 
 
 31. The fact of the introduction of each deposition and 
 other paper received in evidence by the court and what parts 
 were offered by either side, or were not offered, or were ex- 
 cluded, and that it is appended to the record properly marked. 
 
 32. The exact and entire text read to the court by the 
 prosecution or defense from any publication, together with 
 the title of the publication, the edition thereof, and the 
 proper page (or paragraph or section) number. 
 
 33. In a proper case, that the accused had no testimony, 
 or no further testimony, to offer, or no statement to make, 
 or both. 
 
 34. That when the accused did not testify or make a 
 statement the law member if present, or otherwise the presi- 
 dent, explained to him in open court in substantially the form 
 prescribed in Appendix 9, infra, that he might testify in his 
 own behalf if he so desired; or might, without being sworn, 
 make a statement in denial, in explanation, or in extenuation ; 
 or might do both. 
 
 35. Each motion, objection, argument, statement, etc., 
 made in open court, and the action, if any, had thereon. 
 
 36. The fact of each closing of the court. 
 
 29G 
 
COURTS-MARTIAL RECORDS OF TRIAL. ^f 357 
 
 37. The fact of each opening of the court, and that the 
 members (including; and so designating, the law member), trial 
 judge advocate, assistant trial judge advocate, defense counsel, 
 assistant defense counsel, the accused and his individual coun- 
 sel,- if any, and tke reporter, if any, were present when the 
 court was opened (without, however, repeating their names, in 
 
 any reopening, except where necessary because of 
 or absences). 
 
 38. If a note was made of recess taken, that the members 
 (including, and so designating, tfee law member) , tbe trial judge 
 advocate, assistant trial judge advocate, defense counsel, as- 
 sistant defeBse counsel, the accused and his individual counsel, 
 an-d the reporter, if any, were present when the court again 
 proceeded to business* 
 
 39. In a joint trial, that each and every one of the several 
 accused was accorded each and every right and privilege 
 he would enjoy if tried separately; and, as to each accused,, 
 proper findings and sentence or acquits!. (The erf here 
 sought, however, will, so far as practicable, be attained by 
 the use oi appropriate general language without unduly 
 burdening tbe reeord with repetitions.) 
 
 40. The findings on each of the several specifications and 
 charges not disposed of as a result of a special plea. 
 
 41. The fact that each finding, as to each speeiieation, and 
 also as to each charge, was determined by secret written ballot. 
 (A. W. 31.) 
 
 42. That,, after the findings y the court was opened lor the 
 purpose of receiving evidence of previous convictions, and 
 its action. 
 
 43. That the statement of accused's service, as shown on the 
 clarge sheet, was; thereupon read to him by the trial judge advo- 
 cate, and he was asked whether it was correct, or whether fee bad 
 any statement, ar correction, to make concerning it, and his 
 answers thereto, 
 
 44. In case of receipt by th court of evidence of previous 
 convictions, that a copy of each is appended to the record, 
 properly marked. 
 
 45. In case of the receipt of evidence of previous convictions, 
 that the accused was asked whether the evidence of such- 
 
 297 
 
^[ 357 CHAPTER XV. 
 
 previous convictions was correct, and whether he had any 
 statement to make in explanation or extenuation thereof, or in 
 relation thereto, and his answers. 
 
 46. The sentence, acquittal, or other action finally taken, 
 and that the same were (or were not) announced in open court; 
 and, if not so announced, the reasons therefor. 
 
 47. In case of conviction of an offense for which the death 
 penalty is made mandatory by law, that all of the members 
 of the court present at the time the vote was taken concurred 
 in such findings of guilty, both as to the specification and also 
 as to the charge. (A. W. 43.) 
 
 48. As to every other finding of guilty, whether upon a specifi- 
 cation or a charge, that two-thirds of the members of the court 
 present at the time the vote was taken concurred therein. 
 (A. W. 43.) 
 
 49. In case of a sentence to suffer death, that all of the 
 members of the court present at the time the vote was taken 
 concurred in the sentence. (A. W. 43.) 
 
 50. In case of sentence of life imprisonment or to confinement 
 for more than 10 years, that three-fourths of the members of the 
 court present at the time the vote was taken concurred therein. 
 
 51. In case of any sentence other than death, life imprison- 
 ment, or confinement for more than 10 years, that two-thirds of 
 the members of the court present at the time the vote was taken 
 concurred therein. (A. W. 43.) 
 
 52. The adjournment. 
 
 53. That the trial judge advocate, or in a proper case, the 
 assistant trial judge advocate, subscribed each day's pro- 
 ceedings. 
 
 54. That the president and the trial judge advocate; or, in 
 a proper case, the president and an assistant trial judge ad- 
 vocate; or, in a proper case, a member in lieu of the president, 
 and the trial judge advocate; or, in a proper case, a member in 
 lieu of the president, and the assistant trial judge advocate; or, 
 in a proper case, a member in lieu of the president, and another 
 member in lieu of the trial judge advocate if there is no assist- 
 ant trial judge advocate; or, in a proper case, a member in lieu 
 of the president, and another member in lieu of both the trial 
 judge advocate and assistant trial judge advocate if both are 
 
 298 
 
COURTS-MARTIAL RECORDS OF TRIAL. ^f 357 
 
 unable to authenticate the record, subscribed the record. In any 
 case where the record is subscribed by a member in lieu of the 
 president, or by the assistant trial judge advocate or another 
 member in lieu of the trial judge advocate, or by another member 
 in lieu of both the trial judge advocate and assistant trial judge 
 advocate, the facts which make such action proper will appear in 
 the record by the signature, as follows : 
 
 Name and rank. A member in lieu of the president, be- 
 cause of his (death) (disability) (absence). 
 
 Name and rank. Assistant trial judge advocate, because 
 of (death) (disability) (absence) of trial judge advo- 
 cate. 
 
 Name and rank. A member in lieu of trial judge advo- 
 cate, because of his (death) (disability) (absence). 
 (This to be used where no assistant trial judge advocate 
 was appointed for the court.) 
 
 Name and rank. A member in lieu of trial judge advo- 
 cate and assistant trial judge advocate, because of 
 (death) (disability) (absence) of trial judge advocate, 
 and of (death) (disability) (absence) of assistant trial 
 judge advocate. 
 
 55. In case the trial judge advocate has recorded the find- 
 ings and sentence with a typewriter, then a certificate that 
 he recorded the findings and sentence of the court, in those 
 exceptional cases only, where the sentence has, under the pro- 
 visions of paragraph 332a, supra, been directed by the court 
 not to be announced in open court. 
 
 56. Appended to the record (but not as exhibits, except where 
 received in evidence at the trial), and securely bound with it, 
 will be 
 
 (1) The original counterpart of the charges upon which 
 
 is indorsed 
 
 (2) The order referring the case for trial; together with 
 
 one copy of each of 
 
 (3) The report of the investigating officer, with 
 
 (4) The summaries of the testimony of the witnesses, 
 
 and the report, if any, of the medical officer, on the 
 preliminary investigation, and all other accompany- 
 
 299 
 
*f 858 CHAPTER XV. 
 
 ing documents and inclosures and indorsements 
 thereon, and including 
 
 (5) The report of the staff judge advocate under para- 
 
 graph 76b, snpra, and 
 
 (6) The report of any medical board convened either 
 
 nnder paragraph 76c or paragraph 219d, supra. 
 57. Where the trial was a rehearing of the case there will 
 also be similarly appended the record of trial on the prior hear- 
 ing or hearing's, including the original order referring the case 
 for such rehearing, together with all other papers and docu- 
 ments referred to the trial judge advocate under paragraph 
 377a, infra. 
 
 (c) Record of Revision. Subject to the modifications in- 
 dicated by the form of proceedings in revision, Appendix 10, 
 infra, the foregoing will, so far as applicable, govern in re- 
 spect to such proceedings. 
 
 (d) Clemency Recommendation. A recommendation to 
 clemency will not be embodied in the record proper, but 
 will be bound into the record immediately after the exhibits. 
 (See par. 332.) 
 
 SECTION II. 
 SPECIAL COURTS-MARTIAL. 
 
 358. FORM AND SUBSTANCE. (a) Except as otherwise in- 
 dicated by the form for record of trial by special court, or 
 elsewhere, the requirements in respect of the form and sub- 
 stance of such -records are in general the same as for records 
 of trial by general courts-martial. (See form, Appendix 11.) 
 
 (b) Neither oral testimony received by the court nor state- 
 ments or arguments made will be recorded unless herein spe- 
 cifically required, -or ordered by competent authority (see 
 par. 154 (d) ) ; but (except in cases where the testimony is 
 ordered recorded) a brief written summary of the testimony 
 (including at length any questions to which objection is made, 
 and the action of the court thereon, whether sustaining or over- 
 ruling the objection, and the answers thereto, if answered) of 
 each witness (and of the accused, if sworn as a witness), and 
 
 300 
 
COURTS-MARTIAL RECORDS OF TRIAL. ^f 359 
 
 also of any statements or arguments, will be made in open court 
 by the president, or by one of the other members under the direc- 
 tion of the president, and will be made a part of the record. 
 
 (c) Documentary evidence received by the court, the orig- 
 inals of which can properly be appended to the record, such 
 as depositions, letters, canceled checks, if not required else- 
 where, and other documents, and also any written statement or 
 argument made by or on behalf of the accused, and any rec- 
 ommendations to clemency, and other similar papers, will 
 be so appended. 
 
 (d) Copies of writings received in evidence, the originals 
 of which can not properly be appended to the record, such 
 as certificates of discharge, recommendations as to character, 
 and similar papers will be so appended. 
 
 (e) If a special plea is made, and upon any challenge or 
 motion, the record will set out in full the proceedings had 
 thereon, including all testimony taken thereon and state- 
 ments made relative thereto, as well as the disposition 
 thereof made by the court. 
 
 (/) Evidence of previous convictions, if any, will not be 
 appended to the record, but will be returned by the trial 
 judge advocate with the record of trial to the appointing 
 authority. 
 
 (g) If the findings and sentence or acquittal are announced in 
 open court no certificate that the trial judge advocate recorded 
 typewritten findings or sentence is required. 
 
 (h) The record will, at the end, contain sufficient space 
 for the action of the reviewing authority. If necessary for 
 this purpose, an extra sheet will be included. ^ 
 
 359. NUMBER OF COPIES. One copy only of the record will 
 be prepared, except in cases where the testimony is ordered 
 recorded, when a carbon copy will be prepared for, and de- 
 livered to, the accused, upon his request, in the same manner 
 prescribed in the case of a general court-martial. (See pars. 
 117 and 357 (b) 3, supra, and 366 (b), infra.) 
 
 360. NOT INDEXED Exceptions. The record will not be 
 indexed, except in cases where the testimony is ordered re- 
 corded, when it will be indexed in the same manner as the record 
 of a general court-martial. (See par. 357 (b) 2, supra.) 
 
f 360a CHAPTER xv. 
 
 360a. The testimony will ordinarily be ordered recorded, and 
 the employment of a reporter authorized, in cases where the 
 seriousness of the charges, or other circumstances, such as the 
 liability of the accused to be deprived of a valuable military 
 status, warrant it in the opinion of the appointing authority. 
 
 361. BRIEFED. The record will be briefed as prescribed 
 for the record of a general court-martial. 
 
 362. BOUND. The record will be securely bound. The 
 method of binding is not prescribed, but it must be such as 
 will securely fasten together all the leaves and parts that 
 comprise the record. Easily removable clips or paper fas- 
 teners will not be used for this purpose. 
 
 SECTION III. 
 SUMMARY COURTS-MARTIAL. 
 
 363. FORM AND SUBSTANCE. The requirements in respect 
 of the form and substance of records of trial by summary 
 court are indicated in the form for record of trial by sum- 
 mary court. (See Appendix 12, infra.) Except as otherwise re- 
 quired by Paragraphs 215 and 351 (d) and (f), supra, and by the 
 note to Paragraph 43, supra, or indicated by the form of record of 
 trial in Appendix 12, the pleas, findings and sentence or ac- 
 quittal only are required to be recorded and subscribed by 
 the summary court as such. The action of the commanding 
 officer on the record, with date and his signature, completes 
 the record. 
 
 ^ SECTION IV. 
 
 CORRECTION OF RECORDS OF TRIAL. 
 
 364. RECORDS OF GENERAL OR SPECIAL COURTS-MARTIAL. 
 A record of trial by general or special court-martial, which 
 by reason of omission, error, or other defect is substantially 
 incomplete or incorrect, or which in the opinion of the ap- 
 pointing authority shows improper action by the court, may 
 be returned by the appointing authority to the president of 
 the court (but see A. W. 40, and par. 352, supra), directing 
 that the court be reconvened for such action as may be ap- 
 propriate. In any such case the defective part of the record 
 
 302 
 
COURTS-MARTIAL RECORDS OF TRIAL. "If 365 
 
 will be left unchanged and without erasure or interlinea- 
 tion, and the record of proceedings in revision will show 
 specifically, ordinarily by page and line, the part of the 
 original record that is changed and the change made. (See 
 par. 352, and Form for Revision of Record, Appendix 10, infra.) 
 
 365. KECORDS OF SUMMARY COURTS-MARTIAL. A record of 
 trial by summary court which by reason of omission, error, 
 or other defect, is substantially incomplete or incorrect, or 
 which, in the opinion of the appointing authority, shows 
 improper action by the court (but see A. W. 40, and par. 352, 
 supra), may be returned by the appointing authority to the 
 summary court for such action as may be appropriate. ( See 
 par. 353.) 
 
 SECTION V. 
 DISPOSITION OF RECORDS OF TRIAL. 
 
 366. BY TRIAL JUDGE ADVOCATE. (a) Original Record. 
 The trial judge advocate of a court-martial shall, with such 
 expedition as circumstances may permit, forward to the 
 appointing authority, or to his successor in command, the 
 original record of the proceedings of the court in the trial 
 of each case. The. record should be forwarded as an inclo- 
 sure to a letter of transmittal from the trial judge advocate, 
 returning to the appointing authority the charges and other 
 papers referred to him, and forwarding at the same time the 
 required copy of the reporter's voucher. The original record 
 of the proceedings of a general court-martial appointed by 
 the President will be sent by the trial judge advocate directly 
 to the Judge Advocate General of the Army. 
 
 (b) Carbon Copy. The trial judge advocate of a general 
 court-martial, or of a special court-martial where the testimony 
 has been ordered recorded, shall, if the accused so desires, de- 
 liver or cause to be delivered to the accused personally, the car- 
 bon copy, when one is prepared (see pars. 355a and 359, supra), 
 of the record of his trial, after it has been corrected, com- 
 pleted, and certified as a true copy (except as to findings and 
 sentence, in the exceptional cases where the same are not an- 
 nounced in open court); and except as to exhibits not copied; 
 and will take, and forward to the convening authority with the 
 21358 20 20 
 
 303 
 
^f 367 CHAPTER XV. 
 
 record of trial, the receipt of the accused therefor; or, in case the 
 accused declines to sign such receipt, the affidavit thereto of the 
 person making such delivery, stating the time and place thereof, 
 and that the accused personally declined to sign such receipt, will 
 be so forwarded to the convening authority. 
 
 367. BY APPOINTING AUTHORITY. (a) Records of Trial 
 ~by General Courts-Martial. After having been acted upon 
 by the officer appointing the court, or by the officer com- 
 manding for the time being, and by the confirming authority, 
 if there be one, the record of each trial by general court- 
 martial, with the decisions and orders of the appointing 
 authority made thereon, and of the confirming authority, if 
 any, will be transmitted direct to the Judge Advocate Gen- 
 eral of the Army, accompanied by the statement of service, 
 if there be any, and by the receipt of the accused, if any, for a 
 copy of the record, or affidavit, if any, of delivery of a copy to him, 
 and one original counterpart of the charges ; the report, if any, of 
 the psychiatrist or medical officer under paragraph 76a, supra; 
 the report of the medical board, if any; the summaries of the 
 evidence on preliminary investigation, and the report of the 
 investigating officer with all indorsements thereon, including 
 forwarding indorsements of the commanding officer and of all 
 intermediate commanders ; the report of the staff judge advocate 
 to the appointing authority, under A. W. 70, and the order of 
 reference for trial; and also by the report or review of the staff 
 judge advocate upon the record of trial under A. W. 46, and by 
 five copies of the order, if there be any, promulgating the 
 result of the trial. 
 
 (b) Records of Trial ~by Special Courts-Martial. After 
 having been acted upon by the officer appointing the court, 
 or by the officer commanding for the time being, the record 
 of each trial by special court-martial, accompanied by an 
 order publishing the result of the trial, and by one original 
 counterpart of the charges ; the report of the investigating officer, 
 with the summary of the evidence on the preliminary investiga- 
 tion; the report, if any, of the psychiatrist or medical officer; the 
 report, if any, of any medical board and all indorsements and 
 other accompanying papers; and the order of reference for trial; 
 and, if any, the receipt of the accused for (or affidavit of delivery 
 
 304 
 
COURTS-MARTIAL RECORDS OF TRIAL. ^] 368 
 
 to him of) a copy of the record, will be forwarded ordinarily 
 without indorsement or letter of transmittal, to the officer 
 exercising general court-martial jurisdiction over the com- 
 mand, there to be filed in the office of the staff judge advocate 
 until the completion of the accused's sentence, whereupon it will 
 be forwarded by the staff judge advocate direct to' the Judge 
 Advocate General for permanent file. (A. W. 36, ) 
 
 (c) Records of Trial ~by Summary Courts-Martial. The 
 several records of trial by summary courts-martial within a 
 command shall be filed together in the office of the com- 
 manding officer and shall constitute the summary -court rec- 
 ord of the command. 
 
 (d) Reports of Trial ~by Summary Courts-Martial. The 
 report of trial by summary court (copy of record of trial) 
 will, with the least practicable delay after action has been 
 taken on the sentence, be completed and transmitted to the 
 officer exercising general court-martial jurisdiction over 
 the command, there to be filed in the office of the staff judge 
 advocate until the statistical information in it required for 
 the annual report of the staff judge advocate have been se- 
 cured, when it may be destroy ed. {A. W. 36.) 
 
 SECTION VI. 
 LOSS OF RECORDS OF TRIAL. 
 
 368. ACTION TO BE TAKEN. When, prior to action by the 
 reviewing authority, a record of trial by court-martial is 
 lost or destroyed, a new record of trial in the case will, if 
 practicable, be prepared and will become the record of trial 
 in the case. Such new record will, however, only be pre- 
 pared when the extant original notes or other sources are 
 such as to enable the preparation of a complete and accurate 
 record of the case. In any case of loss of a record of trial 
 by court-martial the summary court, trial judge advocate, 
 or other proper person will fully inform the appointing 
 authority as to the facts and as to the action, if any, taken* 
 
 305 
 
CHAPTER XVI. 
 
 COURTS-MARTIALACTION BY APPOINTING OR 
 SUPERIOR AUTHORITY APPELLATE REYIEW. 
 
 Section I : Action on the proceedings : Page. 
 
 369. Reviewing authority 307 
 
 370. Review by Staff Judge Advocate 307 
 
 371. Sentence not effective until approved 310 
 
 372. Effect of approval and disapproval 310 
 
 873. Manner of approval 311 
 
 374. The officer commanding for the time being 811 
 
 375. Action where accused is transferred to another depart- 
 
 ment 312 
 
 376. Reviewing authority must act in person 312 
 
 376a. Error Effect of Article of War 37 313 
 
 377. Powers incident to power to approve 313 
 
 377a. Rehearing 315 
 
 378. Confirmation of sentences 317 
 
 379. Powers incident to power to confirm 318 
 
 380. Mitigation of punishment Definition 318 
 
 381. Mitigation or remission of sentences 318 
 
 382. Mitigation when permissible 819 
 
 383. Effect of remission at time of approval 320 
 
 384. Commutation of sentences 320 
 
 385. Adding to sentences 320 
 
 386. Sentences in excess of legal limit 320 
 
 387. Action on sentence may be modified before publication- 320 
 
 388. Where conviction or desertion is disapproved Grounds 
 
 to be stated 320 
 
 389. Place of confinement Change of 321 
 
 390. Loss of files 821 
 
 391. Suspension of sentences until pleasure of President be 
 
 known 821 
 
 392. Suspension of sentences 822 
 
 893. Execution or remission Confinement in disciplinary 
 
 barracks 822 
 
 394. Place of confinement to be designated by reviewing au- 
 thority 823 
 
 895. Forms for action on sentence by reviewing authority 823 
 
 896. When confinement in a penitentiary may be directed.. 323 
 
 897. When confinement in disciplinary barracks will be 
 
 directed .. 324 
 
 398. When confinement in post will be directed 324 
 
 899. Cooperation of reviewing authorities 324 
 
 306 
 
COURTS-MARTIAL ACTION. If 369 
 
 Section II : Appellate review : 
 
 399a. Review of general court-martial cases under Article Page, 
 
 of War 50* 324 
 
 400. Court-martial orders 329 
 
 Section III : Action after promulgation of sentence : 
 
 401. Date of beginning of sentence 829 
 
 402. Applications for clemency 330 
 
 403. Remission of suspended sentence of dishonorable dis- 
 
 charge - 331 
 
 404. Clemency applications limited to one in six months 831 
 
 SECTION I. 
 ACTION ON THE PROCEEDINGS. 
 
 369. REVIEWING AUTHORITY. The term reviewing au- 
 thority is employed to designate the officer whose province 
 and duty it is to take action upon the proceedings of a court- 
 martial after the same are terminated, and, when the record 
 is transmitted to him for such action, to approve or disap- 
 prove the sentence. This officer is ordinarily the com- 
 mander who has convened the court. In his absence, 
 however, or where the command has been otherwise changed, 
 his successor in command, or, in the language of A. W. 46, 
 " the officer commanding for the time being " is invested (by 
 that article) with the same authority to pass upon the pro- 
 ceedings and order the execution of the sentence in a case of 
 conviction. (Digest, p. 554, XIV, A, 1.) The term "ap- 
 pointing authority" is sometimes employed to denote the 
 reviewing authority, but the latter term is the more correct 
 one. 
 
 370. Review by Staff Judge Advocate. " Under such regu- 
 lations as may be prescribed by the President, every record of 
 trial by general court-martial or military commission received 
 by a reviewing or confirming authority shall be referred by him, 
 before he acts thereon, to his staff judge advocate or to the Judge 
 Advocate General." (A. W. 46.) The staff judge advocate or 
 one of his assistants will prepare a written review, or report, as 
 circumstances may require, in each case of conviction by gen- 
 eral court-martial or military commission. Such review or re- 
 port is intended primarily to advise the reviewing or confirming 
 authority as to the essential features of the case and as to the 
 action that he should take thereon. Where the evidence in 
 
 307 
 
Tf 570 CHAPTER XVI. 
 
 support of each specification upon which the accused is convicted 
 is clear and conclusive and there are no errors or irregularities 
 which may be regarded as affecting the substantial rights of the 
 accused or as invalidating the sentence in whole or in part, a 
 review will not be required, but a report to that effect will be 
 sufficient. When the evidence in support of a specification is 
 weak or conflicting, or where the evidence for the defense tends 
 to weaken the evidence for the prosecution or to disprove the 
 allegations in the specification, a review will be prepared and 
 all the material evidence relating to the specification will be 
 weighed; and the reviewer will state his opinion, both as to 
 the weight of evidence and any error or irregularity that may 
 be involved, and as to whether or not the finding of guilty should 
 be approved, together with his reasons for such opinion. Where 
 the accused has been convicted, however, upon other specifica- 
 tions upon clear and conclusive evidence it is sufficient that the 
 reviewer state that fact with reference to such specifications in 
 the review. 
 
 The review will contain a statement of such errors as may 
 have been committed to the prejudice of the accused in the 
 course of the trial or in the preparation of the record, and all 
 such irregularities as may have affected the validity of the 
 proceedings or sentence. Each of such errors or irregularities 
 will be carefully weighed in the review for the purpose of in- 
 forming the reviewing authority whether he should or should 
 not, in view of the provisions of the thirty-seventh article of 
 war, hold the sentence invalid or direct a rehearing; and the 
 reviewer will expressly state as to such errors or irregularities 
 whether or not in his opinion the sentence or any part thereof 
 should be held invalid or whether or not in his opinion a rehear- 
 ing should be directed. When reference is made to any error 
 the page of the record which discloses such error will be cited, 
 and, when testimony is referred to, the name of the witness giv- 
 ing such testimony and the page on which the same is recorded 
 will be cited. 
 
 The judge advocate making a report or review will begin the 
 same by stating the place and dates at which the accused (stat- 
 ing his name and age) was tried, and the sentence that was 
 adjudged, and will then set forth the charges and specifications, 
 
 808 
 
COURTS-MARTIAL ACTION". If 370 ' 
 
 either verbatim or in substance, as may be thought best, upon 
 which the accused was convicted. After such remarks as may be 
 necessary in view of the above paragraphs of this regulation the 
 officer making the review or report will make specific recom- 
 mendation as to the sentence, either (a) that the sentence be 
 approved or disapproved in whole, or (b) that it be approved in 
 part, or (c) that a rehearing be directed, giving his reasons for 
 his recommendation in each case; and the report or review will 
 conclude with a draft of the action to be taken by the reviewing 
 authority which the officer making the report or review rec- 
 ommends. (See par. 339.) The report or review will be signed 
 by the officer making the same. If signed by an assistant staff 
 judge advocate, the staff judge advocate will indorse thereon 
 either (a) his approval or (b) his disapproval, with his reasons 
 therefor, and will incorporate in his indorsement of disapproval 
 a draft of the action to be taken by the reviewing authority 
 which he recommends. 
 
 The signed copy of the report or review will be transmitted 
 with the record of trial to the Judge Advocate General. 
 
 The reviewing authority will state at the end of the record 
 of trial in each case his decisions and orders. 
 
 NOTE 1. The review or report is intended to supplement, not to 
 replace, the personal interview which the reviewing authority has 
 with the staff judge advocate or the assistant who studies the case. 
 This interview should toe had in all cases where the reviewing 
 authority does not regard the review or report as giving all tne 
 information or advice required, or where he differs from the officer 
 making the same as to any statement or recommendation. 
 
 NOTE 2. The regulations in this Manual specifying the contents 
 of a review or report will not preclude the reviewing authority 
 from directing in any case that a more complete review or report 
 be prepared than the regulation requires. 
 
 NOTE 3. Should the reviewing authority after receiving the 
 advice of his staff judge advocate still be in doubt as to the action 
 that lie may or should take upon the sentence he may transmit the 
 record to the Judge Advocate General with request for advice either 
 (a) as to the whole case, or (b) as to any particular matter in- 
 volved in the case; and will so transmit it for advice on the whole 
 case before acting on it, if there be no staff judge advocate or 
 officer acting as such on duty with his command. 
 
 NOTE 4. The duties herein defined for a staff judge advocate will 
 be performed by the officer acting as such, if no judge advocate is on 
 duty on the staff of the reviewing authority. 
 
Tf 371 CHAPTER XVI. 
 
 371. SENTENCE NOT EFFECTIVE UNTIL APPROVED. No sen- 
 tence of a court-martial shall be carried into execution, or 
 ordered executed, until the same shall have been approved by 
 the reviewing authority as defined in paragraphs 369 and 
 374, and confirmed if confirmation be necessary (see par. 378, 
 infra), and until, also, if it be a sentence of a general court- 
 martial involving the penalty of death, dismissal not suspended, 
 or any sentence (not based solely upon findings of guilty of all 
 specifications and charges, all supported by pleas of guilty) in- 
 volving dishonorable discharge not suspended, or confinement 
 in a penitentiary, or requiring the approval or confirmation of 
 the President under A. W. 46, 48, or 51, it shall have been 
 examined and acted upon by the board of review and the Judge 
 Advocate General as required by Article of War 50 ^. 
 
 Upon acquittal, or upon conviction where the sentence 
 does not include confinement, the accused, if in confinement or 
 arrest, shall be released from confinement or arrest as pro- 
 vided in paragraph 332a. The announcement of the result 
 of trial in orders is not necessary to the validity of the 
 sentence or acquittal. It is not necessary for the review- 
 ing authority to approve the findings and proceedings. 
 
 372. EFFECT OF APPROVAL AND DISAPPROVAL. (a) While 
 approval gives life and operation to a sentence, disapproval, 
 on the other hand, nullifies it. A disapproval of the sen- 
 tence of a court-martial by the reviewing authority is not a 
 mere expression of disapprobation but is a final determinate 
 act putting an end to the disapproved sentence (or findings) 
 and rendering them entirely nugatory and inoperative ; and 
 the legal effect of a disapproval is the same whether or not 
 the officer disapproving is authorized finally to confirm the 
 sentence. But to be thus operative a disapproval should 
 be expressed. The effect of the entire disapproval of a 
 sentence is not merely to annul the same as such but also 
 to prevent the accruing of any disability or forfeiture which 
 would have been incidental upon an approval. (Digest, 
 p. 563, XIV, E, 9, b, (1).) 
 
 (b) An acquittal is not a " sentence " within the meaning of 
 the Articles of War, or of this Manual, and does not require 
 approval or confirmation. It will not be either approved or 
 
 310 
 
COURTS-MAKTIAL ACTION. ^f 373 
 
 disapproved; but will merely be promulgated in a court-martial 
 order, 
 
 The same rule applies to any finding of " not guilty " of any 
 charge or specification. 
 
 (c) "No authority will disapprove or return for reconsidera- 
 tion either 
 
 (a) An acquittal; or 
 
 (b) A finding of not guilty of any specification; or 
 
 (c) A finding of not guilty of any charge, unless the 
 
 record shows a finding of guilty under a specifica- 
 tion laid under that charge, which sufficiently 
 alleges a violation of some article of war; or 
 
 (d) The sentence originally imposed, with a view to in- 
 
 creasing its severity, unless such sentence is less 
 than the mandatory sentence fixed by law for the 
 offense or offenses upon which a conviction has 
 been had. 
 
 And no court-martial, in any proceedings on revision, shall 
 reconsider its findings or sentence in any particular in which a 
 return of the record of trial for such reconsideration is herein- 
 before prohibited." (A. W. 40.) 
 
 373. MANNER OF APPROVAL. The approval of the sen- 
 tence should properly be of a formal character. The article 
 requires the sentence to be approved. A formal approval 
 of the findings only does not meet the requirement of the 
 article. The sentence should be approved by "the officer 
 appointing the court," or the officer commanding for the 
 time being, although as in a case of a sentence of dismissal 
 in time of peace he may not be empowered finally to 
 confirm and give effect to the sentence. His approval is 
 required as showing that he does not, as he is authorized 
 to do, disapprove. (Digest, p. 174, CIV, A, 1, and A, 2.) 
 
 374. THE OFFICER COMMANDING FOR THE TIME BEING. 
 The " officer commanding for the time being," indicated in 
 A. W. 46, is an officer who has succeeded to the command 
 of the officer who appointed the court; as where the latter 
 has been regularly relieved and another officer assigned to 
 the command ; or where the command of the appointing 
 officer has been discontinued, and merged in a larger or other 
 command, at some time before the proceedings of the court 
 
 311 
 
^ 376 CHAPTER XVI. 
 
 are completed and required to be acted upon. Thus where, 
 under these circumstances, a separate brigade has ceased to 
 exist as a distinctive organization and been merged in a 
 division, or a division has been similarly merged in 'an army 
 or department, the commander of the division in the one 
 case and of the army or department in the other, is "the 
 officer commanding for the time being," in the sense of the 
 article. 'So, where a court was convened by a division com- 
 mander, but before the reviewing authority had acted upon 
 the sentence the division was discontinued and the organiza- 
 tions composing it were distributed among the divisions of 
 another corps, it was held that the commander of this other 
 corps was the officer " commanding for the time being." So, 
 where, before the proceedings of a special court convened 
 by a post commander were completed, the post command had 
 ceased to exist and the command became distributed in the 
 department, it was held that the department commander, as 
 the legal successor of the post commander, was the proper 
 authority to approve the sentence. (Digest, p. 174, CIV, C, 
 1 ; p. 175, CIV, C, 2, and see C, 4.) 
 
 375. ACTION WHERE ACCUSED Is TRANSFERRED TO ANOTHER 
 DEPARTMENT. Where an accused who has been tried by 
 general court-martial proceeds with his command, from the 
 division, army, or force, or corps or army area or department 
 or other general court-martial jurisdiction in which he has been 
 tried to another division, army, or force, or corps or army area 
 or department, or other general court-martial jurisdiction, be- 
 fore action has been taken on his case by the reviewing au- 
 thority, the commanding general of the division, army, or 
 force, or corps or army area, or department or other general 
 court-martial jurisdiction in which he has been tried, is the 
 proper reviewing authority of the case. (Digest, p. 554, 
 XIV, A, 3.) 
 
 376. REVIEWING AUTHORITY MUST ACT IN PERSON. The 
 reviewing authority can not delegate to an inferior or other 
 officer his function as reviewing authority as conferred by 
 the forty-sixth article of war; nor can he authorize a staff 
 or other officer to subscribe for him his decision and orders 
 on the proceedings. He will sign in his own hand the action 
 
 812 
 
COURTS-MARTIAL, ACTION. ^[ 376a 
 
 taken by him on the proceedings, his rank and the fact that 
 he is the commanding officer appearing after his signature. 
 
 376a. Error Effect of Article of War 37. "The proceed- 
 ings of a court-martial shall not be held invalid, nor the find- 
 ings or sentence disapproved, in any case on the ground of im- 
 proper admission or rejection of evidence or for any error as to 
 any matter of pleading or procedure unless in the opinion of the 
 reviewing or confirming authority, after an examination of the 
 entire proceedings, it shall appear that the error complained of has 
 injuriously affected the substantial rights of an accused: Pro- 
 vided, That the act or omission upon which the accused has been 
 tried constitutes an offense denounced and made punishable by 
 one or more of these articles." (A. W. 37.) 
 
 The thirty-seventh article of war vests a sound legal discretion 
 in the reviewing authority to the end that substantial justice may 
 be done. It directs him to disregard the improper admission or 
 rejection of evidence or errors in pleading or procedure, unless 
 such erroneous action by the court appears to him to have oper- 
 ated to the substantial injury of the accused. The effect of the 
 erroneous action of the court should be weighed by him in the 
 light of all the facts as shown by the record, and, if it appears 
 to him that the court was materially influenced in its finding 
 or sentence by its erroneous action, he should disapprove the 
 findings and sentence, in whole or in part, as circumstances may 
 require. The review by the staff judge advocate will be espe- 
 cially thorough as to the effect, in his opinion, of any error 
 which the court may have made to the prejudice of the accused. 
 
 377. POWERS INCIDENT TO POWER TO APPROVE. The power 
 to approve the sentence of a court-martial shall be held to 
 include : 
 
 (a) The power to approve or disapprove a finding and to 
 approve only so much of a finding of guilty of a particular 
 offense as involves a finding of guilty of a lesser included 
 offense when, in the opinion of the authority having power 
 to approve, the evidence of record requires a finding of 
 only the lesser degree of guilt. 
 
 The authority here conferred to approve only so much 
 of a finding of guilty as involves a finding of guilty of a 
 lesser included offense is coextensive with the power of 
 
 813 
 
Tf 377 CHAPTER XVI. 
 
 courts-martial to convict of lesser included offenses. The 
 more frequent occasions for the exercise of this authority are 
 indicated below. 
 
 (1) Affray. 
 
 (a) Assault. 
 
 (b) Breach of peace (disorder). 
 
 (2) Assault with intent to commit murder. 
 
 (a) Any of the minor degrees of assault. 
 
 (3) Battery. 
 
 (a) Assault. 
 
 (4) Murder. 
 
 (a) Manslaughter. 
 
 Voluntary. 
 Involuntary. 
 
 (b) Attempt to commit. 
 
 (c) Felonious assault. 
 
 (d) Assault and battery. 
 
 (e) Assault, bodily harm. 
 
 (5) Mayhem. 
 
 (a) Assault with intent to commit. 
 
 (b) Assault and battery. 
 
 (c) Assault, bodily harm. 
 
 (6) Rape. 
 
 (a) Assault with intent to commit rape. 
 
 (b) Assault and battery. 
 
 (c) Assault. 
 
 (7) Robbery. 
 
 (a) Assault with intent to rob. 
 
 (b) Larceny from the person. 
 
 (c) Assault and battery. 
 
 (d) Assault. 
 
 (8) Desertion. 
 
 (a) Attempt to desert. 
 
 (b) Absence without leave. 
 
 (9) Willful disobedience of superior officer, 
 
 (a) Failure to obey. 
 
 (10) Willful disobedience of noncommissioned officer. 
 (a) Failure to obey. 
 
 314 
 
COURTS-MARTIAL* ACTION. ^f 377a 
 
 (11) Refusal to receive and keep prisoners. 
 
 (a) Failure to receive and keep. 
 
 (12) Quitting post to plunder or pillage. 
 
 (a) Quitting post. 
 
 (13) Drunk on duty. 
 
 (a) Drunk. 
 
 (14) Conduct unbecoming an officer and gentleman. 
 
 (a) Conduct to the prejudice of good order 
 
 and military discipline. 
 
 () The power to approve or disapprove the whole or any- 
 part of the sentence. 
 
 (c) The power to remand a case for rehearing-, under the pro- 
 visions of A. W. 50y 2 . (See par. 377a, infra.) 
 
 NOTE. The reviewing authority (A. W. 47) may approve, or the 
 confirming authority (A. W. 49) may confirm, so much of a finding 
 of guilty as involves an attempt to commit the offense alleged. 
 
 377a. Rehearing. "When the President or any reviewing 
 or confirming authority disapproves or vacates a sentence, the 
 execution of which has not theretofore been duly ordered, he 
 may authorize or direct a rehearing. Such rehearing shall take 
 place before a court composed of officers not members of the 
 court which first heard the case. Upon such rehearing the ac- 
 cused shall not be tried for any offense of which he was found not 
 guilty by the first court, and no sentence in excess of, or more 
 severe than, the original sentence shall be enforced unless the 
 sentence be based upon a finding of guilty of an offense not 
 considered upon the merits in the original proceedings." (A. W. 
 50%.) 
 
 When a rehearing is directed the record of the former pro- 
 ceedings and the other papers mentioned in paragraphs 77b and 
 79b, supra, will be referred with the charges to the trial judge 
 advocate, who will permit the defense counsel and other counsel 
 for the accused to examine them equally with himself. No 
 member of the court which rehears the case should be permitted 
 to examine such record, or other documents (other than the 
 charges), except if and when (if at all) received in evidence at 
 the rehearing in accordance with law or some provision of this 
 Manual. 
 
 315 
 
5[ S77a CHAPTER 
 
 If a witness at the former hearing is dead, or too old or infirm 
 to attend at the rehearing, or resides, or is stationed, more than 
 100 miles from the place where the rehearing is had, or can not 
 be found, his testimony at the former hearing, or any part of 
 such testimony, will, in cases not capital, be admissible in evi- 
 dence at the rehearing, subject, however, to the same objections 
 as it would be were the witness present and testifying at the 
 rehearing; provided, that in capital cases also, on motion of the 
 accused or his counsel, the testimony at the former hearing of a 
 witness thus absent may be so received in evidence at the re- 
 hearing, and when, in a capital case, a part of the testimony of 
 a witness thus absent is received in evidence on motion of the 
 accused or his counsel, the remainder of the testimony of such 
 witness will thereby be rendered admissible in evidence subject 
 to objections as aforesaid. 
 
 But when a rehearing is ordered because of an error in the 
 admission or rejection of the testimony of a witness, or other 
 error in his examination, his testimony given at the former 
 hearing should not be received in evidence at the rehearing if it 
 is reasonably practicable for him to appear as a witness before 
 the court. In the evnt that his testimony at the former hear- 
 ing is received, extreme care must be taken by the trial judge 
 advocate that the errors made at the former hearing be not 
 repeated. To that end, the reviewing authority will in all cases 
 refer to the trial judge advocate with the record of the former 
 hearing, a copy of the holding of the board of review or the 
 review by the staif judge advocate or such other opinion or 
 holding as may inform the trial judge advocate of the errors 
 made at the former hearing which necessitated a rehearing. 
 The papers thus referred to the trial judge advocate will be ac- 
 cessible to the defense counsel and any other counsel for the 
 accused, and such parts thereof as relate to the errors com- 
 mitted at the former hearing may be examined by the law mem- 
 ber when necessary to enable him to decide upon the admis- 
 sibility of testimony or other questions of law involved ; and may 
 be read to the court when necessary for the court to decide such 
 questions under the provisions of A. W. 31. 
 
 When a rehearing is directed neither the action of the court 
 at the former proceeding nor the action of the reviewing or 
 
 816 
 
COURTS-MARTIAL ACTION. * 378 
 
 confirming authority thereon will be published in orders, but 
 the general court-martial order promulgating the final action 
 in the case will in a separate paragraph publish such charges 
 and specifications at the former hearing as may not have been 
 referred for rehearing, together with the action of the court 
 and reviewing authority thereon. The record of the former 
 hearing will be forwarded to the Judge Advocate General with 
 the record of the rehearing. 
 
 NOTE 1. These regulations authorizing the receipt of testimony 
 given at a former hearing to be received at a rehearing shall not 
 be construed as preventing the calling of the witness to testify in 
 person, or the taking of his deposition, either in lieu of or in addition 
 to his testimony at the former hearing. 
 
 NOTE 2. A rehearing may be directed either before a new court 
 especially convened for that purpose, or before some other court 
 already in existence, or before members of the original court who 
 did not sit on the prior hearing. Ordinarily it will be preferable 
 to detail the same trial judge advocate and defense counsel who 
 served as such at the former hearing, if they are available, because 
 of their familiarity with the case. 
 
 378. CONFIRMATION OF SENTENCES. In the following cases 
 confirmation by the President is required before the sentence 
 of a court-martial is carried into execution: 
 
 (a) Any sentence respecting a general officer. 
 
 (&.) Any sentence extending to the dismissal of an officer 
 except that in time of war a sentence extending to the dis- 
 missal of an officer below the grade of a brigadier general 
 may be carried into execution upon confirmation by the 
 commanding general of the Army in the field or by the com- 
 manding general of the territorial department or division. 
 
 (c) Any sentence extending to the suspension or dismissal 
 of a cadet, and 
 
 (d) Any sentence of death, except in the cases of persons 
 convicted in time of war of murder, rape, mutiny, desertion, 
 or as spies, and in such excepted cases a sentence of death 
 may be carried into execution subject to the provisions of 
 Article of War 50J, upon confirmation of the commanding 
 general of the Army in the field or by the commanding gen- 
 eral of the territorial department or division. 
 
 317 
 
If 379 CHAPTER XVI. 
 
 When the authority competent to confirm the sentence has 
 already acted as the approving authority no additional con- 
 firmation by him is necessary. (A. W. 48.) 
 
 NOTE 1. The power of confirmation of certain sentences in time 
 of war, conferred by A. W. 48 upon the commanding general " of 
 the territorial department or division ", can not be exercised by the 
 commanding general of a corps area or Army area. 
 
 NOTE 2. For statement by whom a sentence of dismissal from 
 service or dishonorable discharge imposed by National Guard courts- 
 martial, not in the service of the United States, must be approved 
 before its execution, see section 107, act of June 3, 1916, 39 Stat. 
 166, Appendix 2, infra. 
 
 379. POWERS INCIDENT TO POWER TO CONFIRM. The power 
 to confirm the sentence of a court-martial shall be held to 
 include 
 
 (a) The power to confirm or disapprove a finding, and to 
 confirm so much only of a finding of guilty of a particular 
 offense as involves a finding of guilty of a lesser included 
 offense when, in the opinion of the authority having power 
 to confirm, the evidence of record requires a finding of only 
 the lesser degree of guilt ; 
 
 (b) The power to confirm or disapprove the whole or any 
 part of the sentence ; and 
 
 (c) The power to remand a case for rehearing, under the pro- 
 visions of Article of War 50^. (A. W. 49.) (See par. 377a, 
 supra.) 
 
 The manner of the exercise of the power conferred upon 
 confirming authorities is indicated in the remarks in para- 
 graph 377 and the subparagraphs thereunder, relating to the 
 powers incident to the power to approve a sentence as pro- 
 vided for under A. W. 47. 
 
 380. MITIGATION or PUNISHMENT DEFINITION. By miti- 
 gating a punishment is meant a reduction in quantity or 
 quality, the general nature of the punishment remaining 
 the same. (Digest, p. 177, CXII, B.) 
 
 381. MITIGATION OR REMISSION OF SENTENCES. The power 
 to order the execution of the sentence adjudged by a court- 
 martial shall be held to include, inter alia, the power to 
 mitigate or remit the whole or any part of the sentence. 
 Any unexecuted portion of a sentence adjudged by a court- 
 martial may be mitigated or remitted by the military 
 
 318 
 
COURTS-MARTIAL ACTION. ^f 382 
 
 authority competent to appoint, for the command, exclusive 
 of penitentiaries and the United States Disciplinary Bar- 
 racks, in which the person under sentence is held, a court of 
 the kind that imposed the sentence, and the same power may 
 be exercised by superior military authority; but no sen- 
 tence approved or confirmed by the President shall be re- 
 mitted or mitigated by any other authority, and no approved 
 sentence of loss of files by an officer shall be remitted or miti- 
 gated by any authority inferior to the President, except as pro- 
 vided in the fifty-second article of war. 
 
 When empowered by the President so to do, the commanding 
 general of the Army in the field, or the commanding general 
 of the territorial department or division, may approve or con- 
 firm and commute (but not approve or confirm without com- 
 muting), mitigate, or remit, and then order executed as com- 
 muted, mitigated, or remitted, any sentence which under the 
 Articles of War requires the confirmation of the President 
 before the same may be executed. 
 
 The power of remission or mitigation extends to all un- 
 collected forfeitures adjudged by sentence of court-martial. 
 (A. W. 50.) 
 
 382. MITIGATION WHEN PERMISSIBLE. A sentence provid- 
 ing for dishonorable discharge only can not be mitigated; 
 although it may be commuted by the President. Subject to the 
 limitations expressed in the Executive order prescribing 
 maximum limits of punishment, forfeiture of pay adjudged 
 by a court-martial may be mitigated to detention of pay for 
 a like period, or less, and confinement at hard labor may be 
 mitigated to hard labor without confinement for a like 
 period, or less. A sentence of dishonorable discharge, for- 
 feiture of all pay and allowances due and to become due, 
 and confinement at hard labor for a definite period may be 
 mitigated to a lesser punishment, for example, to confinement 
 at hard labor and a forfeiture of a specified portion, for ex- 
 ample, two-thirds of the soldiers' pay per month for a period 
 not exceeding that prescribed in the sentence, or to hard labor 
 without confinement for a definite period not exceeding the 
 period prescribed in the sentence, and forfeiture of any portion 
 not exceeding two-thirds of the soldier's pay per month for a 
 period not exceeding that prescribed in the sentence. 
 
 21358 8 20 21 
 
 319 
 
^ 383 CHAPTER XVI. 
 
 383. EFFECT OF REMISSION AT TIME or APPROVAL. The 
 action of a reviewing authority in approving a sentence and 
 simultaneously remitting a portion thereof is legally equiva- 
 lent to approving only the sentence as reduced. (Bui. 12, 
 p. 5, War Dept., 1912.) 
 
 384. COMMUTATION OF SENTENCES. The power to com- 
 mute sentences imposed by military tribunals, not being 
 vested in military commanders, can be exercised by the Presi- 
 dent alone, except when the President has empowered a com- 
 manding general of the Army in the field or the commanding 
 general of the territorial department or division so to do under 
 A. W. 50 in certain cases. (See par. 382.) 
 
 385. ADDING TO SENTENCES. Neither the reviewing au- 
 thority nor any other officer is authorized to add to the 
 punishment imposed by a court-martial. Where post orders 
 classify all soldiers at a post according to their conduct, and 
 provide that soldiers undergoing sentence of a court-martial 
 will be denied pass privileges until the sentence is completed, 
 such a provision adds to the punishment and is unlawful. 
 (BuL 46, p. 7, War Dept., 1914.) 
 
 386. SENTENCES IN EXCESS OF LEGAL, LIMIT. Where a 
 sentence in excess of the legal limit is divisible, such part 
 as is legal may be approved and executed. (Digest, p. 564, 
 XIV, E, 9 c.) Thus: W T hen a sentence to confinement, 
 hard labor without confinement, forfeiture, or detention of 
 pay is in excess of the legal limit, the part within the limit 
 is legal and may be executed. 
 
 387. ACTION ON SENTENCE MAY BE MODIFIED BEFORE PUB- 
 LICATION. Action taken by a reviewing officer upon the 
 proceedings and sentence of a court-martial may be recalled 
 and modified before it has been published and the party to 
 be affected has been duly notified of the same. After such 
 notice the action is beyond recall. An approval can not 
 then be substituted for a disapproval or vice versa. (Digest, 
 p. 565, XIV, E, 9 e.) 
 
 388. WHERE CONVICTION OF DESERTION Is DISAPPROVED, 
 GROUNDS TO BE STATED. Where the reviewing authority dis- 
 approves a sentence for desertion he should indicate in his 
 review whether his disapproval is based upon his belief that 
 the evidence does not show an intent to desert, or is for 
 
 320 
 
COURTS-MARTIAL ACTION. ^f 391 
 
 some other reason that assumes the accused was guilty as 
 charged. The reason for so indicating the grounds of his 
 disapproval is to enable the Finance Department to decide 
 whether the pay and allowances due at date of alleged de- 
 sertion should be forfeited and whether the reward paid 
 for apprehending the deserter and the expenses incurred 
 by the Government in transporting him from point of ap- 
 prehension, delivery, or surrender to the station of his 
 company or detachment or to the place of trial, including 
 the cost of transportation of the guard, should be set 
 against the alleged deserter's pay, under A. E. 127, 1913. 
 (12 Comp. Dec. 328; 15 idem., 661.) 
 
 389. PLACE OF CONFINEMENT CHANGE OF. The authority 
 which has designated the place of confinement or higher 
 authority may change the place of confinement of any pris- 
 oner under the jurisdiction of such authority; but when a 
 military prison or post has been designated as the place of 
 confinement of a prisoner under sentence, no power is com- 
 petent to increase the punishment by designating a peniten- 
 tiary as the place of confinement. 
 
 390. Loss OF FILES. Where a court-martial convened by 
 a corps area commander or other officer exercising general 
 court-martial jurisdiction, for the trial of an officer sentences 
 the accused to the punishment of a loss of files, the approval 
 of the appointing authority is sufficient to give full effect 
 to the sentence, and no action by superior authority can 
 add anything to its effect or conclusiveness. Confirmation 
 by the President is not essential to the execution of such a 
 sentence; and the fact that the same involves a change in 
 the Army Register does not make requisite or proper a 
 revision of the case by the War Department, except as pro- 
 vided by A. W. 50y 2 . The corps area, or other commander, 
 however, can not restore the files; such action can be taken 
 only by the President. (See A. W. 50.) 
 
 &91. SUSPENSION OF SENTENCES UNTIL PLEASURE OF PRESI- 
 DENT BE KNOWN. 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 Presi- 
 dent shall be known j and in such case, he shall immediately 
 
 321 
 
If 392 CHAPTER XVI. 
 
 transmit to the President a copy of the order of suspension, 
 together with a copy of the proceedings of the court. (A. 
 W. 51.) 
 
 392. SUSPENSION OF SENTENCES. The authority compe- 
 tent to order the execution of the sentence of a court-martial 
 may, at the time of the approval of such sentence, suspend 
 the execution, in whole or in part, of any such sentence as 
 does not extend to death, and may restore the person under 
 sentence to duty during such suspension; and the Secretary 
 of War or the commanding officer holding general court-martial 
 jurisdiction over any such offender may, at any time thereafter, 
 while the sentence is being served, suspend the execution, in 
 whole or in part, of the balance of such sentence and restore 
 the person under sentence to duty during such suspension. A 
 sentence, or any part thereof, which has been so suspended 
 may be remitted, in whole or in part, except in cases of per- 
 sons confined in the United States Disciplinary Barracks or 
 its branches, by the officer who suspended the same, by his 
 successor in office, or by any officer exercising appropriate 
 court-martial jurisdiction over the command in which the 
 person under sentence may be serving at the time, and, 
 subject to the foregoing exceptions, the same authority may 
 vacate the order of suspension at any time and order the 
 execution of the sentence or the suspended part thereof in 
 so far as the same shall not have been previously remitted, 
 subject to like power of suspension. The death or honorable 
 discharge of a person under suspended sentence shall operate 
 as a complete remission of any unexecuted or unremitted 
 part of such sentence. (A. W. 52.) 
 
 393. EXECUTION OR REMISSION CONFINEMENT IN DISCI- 
 PLINARY BARRACKS. When a sentence of dishonorable dis- 
 charge has been suspended until the soldier's release from 
 confinement, the execution or remission of any part of his 
 sentence shall, if the soldier be confined in the United States 
 Disciplinary Barracks or any branch thereof, be directed by 
 the Secretary of War. (A. W. 53.) (See Ch. X, Army ap- 
 propriation act of July 9, 1918; 40 Stat., 883.) 
 
 A. W. 52 and 53 embody in court-martial practice the 
 modern principle of the suspended sentence. This principle 
 
 322 
 
COURTS-MARTIAL ACTION. ^f 396 
 
 is of peculiar significance in Army administration in time 
 of war, since it not only enables the reviewing authority to 
 extend to soldiers an opportunity to redeem themselves but 
 also serves to save for the Army the highest possible per- 
 centage of the man power of the Nation. 
 
 394. PLACE or CONFINEMENT TO BE DESIGNATED BY REVIEW- 
 ING AUTHORITY. When the sentence of a general court- 
 martial prescribes dishonorable discharge and confinement, 
 so much of the sentence as relates to confinement will be 
 expressed in substantially the following form: 
 
 To be confined at hard labor at such place as the reviewing au- 
 thority may direct for [leaving to the reviewing authority the 
 
 designation of the place of confinement]. 
 
 395. FORMS FOR ACTION ON SENTENCE BY REVIEWING AU- 
 THORITY. (See Appendix 15.) 
 
 396. WHEN CONFINEMENT IN A PENITENTIARY MAY BE 
 DIRECTED. Except for desertion in time of war, repeated 
 desertion in time of peace, and mutiny, no person shall under 
 the sentence of a court-martial be punished by confinement 
 in a penitentiary unless an act or omission of which he is 
 convicted is recognized as an offense of a civil nature and 
 so punishable by penitentiary confinement for more than one 
 year by some statute of the United States, of general applica- 
 tion within the continental United States, excepting section 289, 
 Penal Code of the "United States, 1910, or by the law of the 
 District of Columbia, or by way of commutation of a death 
 sentence, and unless, also, the period of confinement author- 
 ized and adjudged by such court-martial is more than one 
 year: Provided, That when a sentence of confinement is 
 adjudged by a court-martial upon conviction of two or more 
 acts or omissions any one of which is punishable under these 
 articles by confinement in a penitentiary, the entire sentence 
 of confinement may be executed in a penitentiary : Provided 
 further, That penitentiary confinement hereby authorized 
 may be served in any penitentiary directly or indirectly 
 under the jurisdiction of the United States: Provided fur- 
 ther, That persons sentenced to dishonorable discharge and 
 to confinement not in a penitentiary shall be confined in the 
 United States Disciplinary Barracks or elsewhere as the 
 
 323 
 
f 397 CHAPTER XVI. 
 
 Secretary of War or the reviewing authority may direct, 
 but not in a penitentiary. (A. W. 42.) 
 
 NOTE. For a full statement of the law relating to penitentiary con- 
 finement, the War Department policy with reference to the segregation 
 of general prisoners convicted of offenses punishable with penitentiary 
 confinement and requirements placed upon appointing authorities in 
 stating the law applicable where such confinement is directed, see 
 Chapter XIII, Section II, paragraphs 337, 339, and 341. 
 
 397. WHEN CONFINEMENT IN DISCIPLINARY BARRACKS 
 WILL BE DIRECTED. The United States Disciplinary Bar- 
 racks at Fort Leavenworth, Kans., or one of its branches will 
 be designated as the place of confinement of all general pris- 
 oners other than residents of Porto Kico, the Canal Zone, 
 Hawaiian Islands, or the Philippine Islands who are to be 
 confined for six months or more and who are not to be con- 
 fined in a penitentiary pursuant to the preceding paragraph. 
 From time to time detailed instructions will be issued as 
 to which of the barracks shall be designated and as to when 
 the prisoners shall be transferred to them. 
 
 398. WHEN CONFINEMENT IN POST WILL BE DIRECTED. 
 A military post, station, or camp will be designated as the 
 place of confinement of any general prisoner whose case does 
 not come within the terms of paragraphs 396 and 397 of 
 this section. 
 
 399. COOPERATION OF REVIEWING AUTHORITIES. The suc- 
 cessful segregation of general prisoners according to the 
 grade of their offense as prescribed by the three preceding 
 paragraphs must depend to a considerable extent upon the 
 cooperation of officers exercising general court-martial juris- 
 diction. The demand for prison labor at posts is not deemed 
 a sufficient reason for a departure from the rule of segre- 
 gation prescribed. 
 
 SECTION II. 
 
 APPELLATE REVIEW. 
 
 399a. Review of General Court-Martial Cases under Article of 
 War 50%. (a) Sentences not effective until acted upon by 
 Board of Review and Judge Advocate General. No sentence 
 requiring approval or confirmation by the President under the 
 provisions of Article of War 46, 48, or 51, and, except as here- 
 inafter provided, no other sentence, which, as approved or con- 
 
 324 
 
COURTS-MARTIAL ACTION". ^f 399a 
 
 firmed by the authority having power to direct its execution, 
 involves the penalty of death, dismissal not suspended, dishonor- 
 able discharge not suspended, or confinement in a penitentiary, 
 shall be carried into execution or ordered executed unless and 
 until the record of trial has been acted upon by the Board of 
 Review and the Judge Advocate General, as provided in Article 
 of War 5Q l /%', except that the proper reviewing or confirming 
 authority may, upon his approval or confirmation of a sentence 
 involving dishonorable discharge or confinement in a peniten- 
 tiary, order its execution if it be based solely upon findings of 
 guilty all supported by pleas of guilty. 
 
 (b) Cases requiring approval or confirmation by the President 
 under Articles of War 48, 48, and 51. In every case in which 
 a sentence requires approval or confirmation by the President 
 under the provisions of Article of War 46, 48, or 51, the record 
 of trial, transmitted with the other papers in the case as pro- 
 vided in paragraphs 366 and 367, supra, will be examined by 
 the Board of Review. The opinion of the Board of Review will 
 be submitted in writing to the Judge Advocate General, who 
 will transmit the record and the Board's opinion, with his recom- 
 mendations, directly to the Secretary of War for the action 
 of the President as reviewing or confirming authority as the 
 case may be. (See pars. 377 and 379, supra.) 
 
 (c) Death, dismissal, dishonorable discharge, and peniten- 
 tiary cases not included in subparagraph (b). In every case, 
 not included in the provisions of the preceding subparagraph 
 (b), in which a sentence, as approved or confirmed by the 
 authority having power to direct its execution, involves the 
 penalty of death, dismissal not suspended, dishonorable dis- 
 charge not suspended, or confinement in a penitentiary, such 
 authority, in entering in the record of trial his action thereon 
 approving or confirming such sentence, in whole or in part, 
 will, except as hereinafter provided, withhold the order of 
 execution until after the Board of Review and the Judge Advo- 
 cate General shall have passed upon the legal sufficiency of the 
 record to support the sentence as thus approved or confirmed; 
 except that such authority may, upon his approval or confirma- 
 tion of a sentence involving dishonorable discharge or confine- 
 ment in a penitentiary, order its execution if it be based solely 
 
 325 
 
If 399a CHAPTER xvi. 
 
 upon findings of guilty all supported by pleas of guilty. Such 
 action approving or confirming the sentence in whole or in part 
 and withholding the order of execution will be entered in the 
 record of trial in substantially the following form, the necessary 
 changes being made to conform the action to the facts of each 
 particular case: 
 
 Headquarters 
 
 (Place) 
 
 (Date) 
 
 In the foregoing case of the sentence is ap- 
 proved (or confirmed), (but the period of confinement is 
 
 reduced to ). The is designated as the place 
 
 of confinement. Pursuant to the provisions of Article of War 
 50} applying to this case, the execution of the sentence will 
 not be ordered until the Board of Review and the Judge 
 Advocate General shall have passed upon the legal sufficiency 
 of the record to support the sentence. 
 
 (Signature) 
 
 (Rank) 
 
 Commanding. 
 
 The record of trial will thereupon be transmitted with the 
 other papers in the case, as provided in paragraph 367, supra, 
 directly to the Judge Advocate General. 
 
 Should the Board of Review, with the approval of the Judge 
 Advocate General, hold the record of trial legally sufficient to 
 support the findings and sentence, as approved or confirmed, the 
 Judge Advocate General will so advise the reviewing or con- 
 firming authority from whom the record was received, who may 
 thereupon order the execution of such sentence (with such miti- 
 gation, remission, suspension, or commutation, if any, as he may 
 have theretofore directed or may then direct under A. W. 47, 49, 
 50, or 52), and will publish the general court-martial order. 
 (See par. 400, infra.) 
 
 Should the Board of Review, with the concurrence of the 
 Judge Advocate General, hold the record of trial legally insuffi- 
 cient to support the findings or sentence in whole or in part, or 
 that errors of law have been committed injuriously affecting 
 the substantial rights of the accused, the Judge Advocate Gen- 
 eral will so advise the convening authority to whom the record 
 shall be transmitted through the proper channels for vacation of 
 such findings and sentence in whole or in part by such convening 
 
 326 
 
COURTS-MARTIAL ACTION. ^ 399a 
 
 authority in accord with such holding and the recommendations 
 of the Judge Advocate General thereon, and for a rehearing (see 
 par. 379%) r Slic ^ other action as may be proper; and such 
 authority will, unless he directs a rehearing, publish the general 
 court-martial order (see par. 400, infra). 
 
 Should the Judge Advocate General not concur in the holding 
 of the Board of Review, he will forward the record of trial and 
 all other papers in the case, including the opinion of the Board 
 of Eeview and his own dissent therefrom, directly to the Secre- 
 tary of War for the action of the President, who may confirm the 
 action of the reviewing authority or confirming authority below, 
 in whole or in part, with or without remission, mitigation, or com- 
 mutation, or may disapprove, in whole or in part, any finding of 
 guilty, and may disapprove or vacate the sentence, in whole or in 
 part (A. W. 50y 2 ), and will order accordingly; and, in the event 
 the President shall disapprove the sentence, he may authorize or 
 direct a rehearing in accordance with the provisions of Article of 
 War 50^. (See pars. 377 (c) and 379 (c), supra.) 
 
 After such action of the President shall have been taken, the 
 record of trial, together with such action, will be returned to the 
 Judge Advocate General, who will, unless a rehearing has been 
 authorized or directed by the President, notify the reviewing or 
 confirming authority of the President's action, and the review- 
 ing or confirming authority will thereupon promulgate the action 
 of the President, and direct execution accordingly. If the Presi- 
 dent authorizes or directs a rehearing, the Judge Advocate Gen- 
 eral will also transmit the record of trial to the reviewing or con- 
 firming authority for his further proper action in accordance 
 with the action of the President. 
 
 (d) All other cases. Every record of trial by general court- 
 martial, examination of which by the Board of Review is not in 
 this paragraph hereinbefore provided for, shall be examined in 
 the Judge Advocate General's office and, if found legally insuffi- 
 cient to support the findings of guilty and the sentence, in whole 
 or in part, shall be examined by the Board of Eeview. The Board 
 of Eeview, if it also finds that such record is legally insufficient to 
 support the findings of guilty and the sentence, in whole or in 
 part, shall submit its opinion in writing to the Judge Advocate 
 General, who shall transmit the record and the Board's opinion, 
 
 327 
 
If 399a CHAPTER xvi. 
 
 with his recommendations, directly to the Secretary of War, for 
 the action of the President. In any such case the President may 
 approve, disapprove, or vacate, in whole or in part, any findings 
 of guilty, or confirm, mitigate, commute, remit, or vacate any 
 sentence in whole or in part, and direct the execution of the 
 sentence as confirmed or modified ; and he may restore the accused 
 to all rights affected by the findings and sentence or part thereof 
 held by him to be invalid ; and the President's necessary orders to 
 this end shall be binding upon all dspartments and ofiicers of the 
 government (A. W. 50y 2 ). 
 
 NOTE. Article of War 50% provides that the Judge Advocate 
 General shall constitute in his office a Board of Review consisting of 
 not less than three officers of the Judge Advocate General's Depart- 
 ment; that, whenever necessary, the Judge Advocate General may 
 constitute two or more Boards of Review in his office, with equal 
 powers and duties; that the President, whenever he deems such 
 action necessary, may direct the Judge Advocate General to establish 
 a branch of his office, under an assistant Judge Advocate General, 
 with any distant command, and to establish in such branch office a 
 Board of Review or more than one; and that such assistant Judge 
 Advocate General and such Board or Boards of Review in a branch 
 office shall be empowered to perform for that command, under the 
 general supervision of the Judge Advocate General, the duties which 
 the Judge Advocate General and the Board or Boards of Review in 
 his office would otherwise be required to perform in respect of all 
 cases involving sentences not requiring approval or confirmation by 
 the President. The words " Board of Review " and " Judge Advo- 
 cate General " as used in this Manual will be deemed to refer, re- 
 spectively, to a Board of Review established in a branch of the office 
 of the Judge Advocate General and to an Assistant Judge Advocate 
 General, in cases within a command where such branch office is 
 established, except cases requiring approval or confirmation by the 
 President. 
 
 NOTE 1. In all cases in which the order of execution is with- 
 held under any of the provisions of Article of War 50^, the staff 
 Judge advocate, before transmitting the record of trial to the Judge 
 Advocate General, will take therefrom the data necessary for draft- 
 ing a general court-martial order. 
 
 NOTE 2. When under the provisions of A. W. 50^ the Judge 
 Advocate General advises the reviewing or confirming authority of 
 the holding of the Board of Review, and his concurrence therein, he 
 may in a separate communication, for reasons stated therein, advise 
 such reviewing or confirming authority (1) that he deems the sen- 
 tence unnecessarily severe, or (2) that in his opinion one or more of 
 the findings of guilty should be disapproved. 
 
 328 
 
COURTS-MARTIAL ACTION". ^f 401 
 
 400. COURT-MARTIAL ORDERS. Trials by general courts- 
 martial, including so much of the proceedings as will give 
 the charges and specifications, the pleas, findings, and sen- 
 tence, or acquittal, and the action of the reviewing authority, 
 and of the confirming authority, if any, and also of the Board of 
 Review and the Judge Advocate General, in cases requiring their 
 action under A. W. 50%, and of the President if his action 
 thereon be required by A. W. 48, 50y 2 , or 51, will be announced 
 in general court-martial orders issued from the War De- 
 partment or from other headquarters exercising general 
 court-martial jurisdiction. If the charges contain matter 
 which for any reason is unfit for publication, such matter 
 will be omitted from the order, but," in case of final convic- 
 tion, a copy thereof will be promptly furnished by the re- 
 viewing authority to the commanding officer of the post at 
 which the accused is stationed (or, if in arrest or confine- 
 ment, at which lie is being so held in arrest or confinement), 
 to be included with the papers required to be sent to the 
 commanding officer of the post or other place where the sen- 
 tence is to be executed. Trials by special courts-martial will 
 also be published in orders similar in form to general court- 
 martial orders. (For forms, see Appendix 11.) 
 
 A copy of the special court-martial order will be for- 
 warded to The Adjutant General of the Army by the adju- 
 tant of the command with the memorandum of transmittal of 
 report of changes for the day upon which the order is pub- 
 lished, for file with the "record of the accused. 
 
 SECTION III. 
 ACTION AFTER PROMULGATION OF SENTENCE. 
 
 401. DATE OF BEGINNING or SENTENCE. (a) The order pro- 
 mulgating the proceedings of the court will be of the date that the 
 reviewing or confirming authority takes final action on the case. 
 The order of promulgation of a sentence of confinement ordered to 
 be executed will state the date upon which such sentence was an- 
 nounced in open court; or where, in exceptional cases, the same 
 was not announced, the order will state the date upon which the 
 sentence of confinement was adjudged by the court. Such date 
 
 329 
 
^f 402 CHAPTER XVI. 
 
 will mark the beginning of the sentence of confinement, whether 
 the accused had then been placed in confinement or not. A sen- 
 tence of confinement, hard labor without confinement, restriction 
 to limits, or deprivation of privileges, is continuous until the 
 term expires, except where the person undergoing such sent- 
 ence is absent without authority, or under a parole which 
 proper authority has revoked, or is delivered to the civil 
 authorities under A. W. 74. When the reviewing or confirming 
 authority takes final action upon the case it is proper for him to 
 consider any period of confinement served by the accused prior 
 to and during the trial, and in a proper case to make it the basis 
 of mitigation of the sentence. 
 
 (b) When soldiers, or other persons subject to military law, 
 awaiting the result of trial or undergoing sentence, commit 
 offenses for which they are tried, the second sentence will be 
 executed upon the expiration of the first, except that when 
 the first sentence does not involve confinement, and the second 
 sentence does involve hard labor with confinement, the second 
 sentence will take precedence. If a soldier, while awaiting 
 the result of a trial that terminates in a sentence of confine- 
 ment without dishonorable discharge, or while undergoing 
 a sentence of confinement without dishonorable discharge, 
 is tried for a further offense and sentenced to confinement 
 without dishonorable discharge, the period of confinement 
 imposed by the second sentence will be executed upon the 
 expiration of the period of confinement imposed by the first ; 
 but if the second sentence imposed confinement with dishon- 
 orable discharge (whether or not the dishonorable discharge 
 be suspended), the period of confinement on the first sen- 
 tence will be regarded as having terminated upon the date 
 the second sentence takes effect, leaving to be executed only 
 the confinement imposed by the second sentence. 
 
 402. APPLICATIONS FOR CLEMENCY. The power to remit or 
 mitigate punishment imposed by a court-martial, vested in 
 the authority who appointed the court or the corresponding 
 authority under whose jurisdiction the sentence is being exe- 
 cuted, extends only to unexecuted portions of a sentence. If 
 the punishment be one imposed by a general court-martial, it 
 may be remitted or mitigated only by an officer competent to 
 
 330 
 
COURTS-MARTIAL ACTION. ^f 404 
 
 order a general court-martial and under whose jurisdiction 
 the sentence is being executed, exclusive of penitentiaries and 
 the United States Disciplinary Barracks, or any branch thereof, 
 or by superior military authority. (A. W. 50, and see pars. 381- 
 383, supra.) The fact that a soldier or other person subject to 
 military law has been dishonorably discharged or dismissed 
 through his sentence does not affect this power. An appli- 
 cation for clemency in case of a prisoner sentenced to con- 
 finement in a penitentiary or in the United States Disciplin- 
 ary Barracks or any branch thereof will be forwarded to The 
 Adjutant General of the Army for the action of the Secre- 
 tary of War and the President. A military prisoner sen- 
 tenced to confinement in a penitentiary or in the United 
 States Disciplinary Barracks or any branch thereof will, so 
 far as concerns the exercise of clemency, be considered to 
 have passed beyond the jurisdiction of the department or 
 other commander from the date of the approval of his sen- 
 tence. 
 
 NOTE. For power to commute sentences, see paragraph 384, 
 supra. 
 
 403. REMISSION OF SUSPENDED SENTENCE OF DISHONOR- 
 ABLE DISCHARGE. Requests to remit the dishonorable dis- 
 charge under a suspended sentence of dishonorable discharge 
 are requests for clemency, and will be made to the authority 
 empowered to extend clemency. 
 
 404. CLEMENCY APPLICATIONS LIMITED TO ONE IN Six 
 MONTHS. It appearing that the expenditure of much un- 
 necessary time and labor is involved in the reexamination in 
 the War Department upon further applications for clemency 
 of cases relating to military prisoners which have received 
 recent and thorough consideration in connection with prior 
 applications, the Secretary of War has directed that where 
 such further application is received at the War Department 
 within six months of such prior consideration the case will 
 not be reexamined unless there be set forth in the application 
 new and material reasons for the granting of clemency, but 
 that the applicant will be advised of the recent consideration 
 and of the action had thereon. 
 
 331 
 
CHAPTER XVII. 
 PUNITIVE ARTICLES OF WAR. 
 
 Section I. Enlistment Muster Returns: 
 
 405. Fifty-fourth article of war 337 
 
 I. Fraudulent enlistment . . 338 
 
 406. Fifty-fifth article of war 3HS 
 
 I. Officers making unlawful enlistment or muster in 339 
 
 407. Fifty-sixth article of war 339 
 
 I. Making false muster 340 
 
 II. Signing, etc., false muster rolls 340 
 
 III. Taking money, etc., on muster or signing muster 
 
 rolls 340 
 
 IV. Mustering as an officer or soldier one who is not 341 
 
 408. Fifty-seventh article of war 341 
 
 I. Making false returns 342 
 
 II. Omitting to render returns- 342 
 
 Section II. Desertion Absence without leave: 
 
 409. Fifty-eighth article of war 342 
 
 I. Desertion 344 
 
 II. Attempting to desert - 345 
 
 410. Fifty-ninth article of war__ 346 
 
 I. Advising desertion 347 
 
 II. Persuading desertion 347 
 
 III. Assisting desertion 347 
 
 411. Sixtieth article of war 348 
 
 I. Retaining a deserter 348 
 
 412. Sixty-first article of war. 348 
 
 I. Absence without leave 349 
 
 Section III. Disrespect Insubordination Mutiny : 
 
 413. Sixty-second article of war 350 
 
 I. Disrespect toward the President, etc 331 
 
 414. Sixty-third article of war 351 
 
 I. Disrespect toward a superior officer 352 
 
 415. Sixty-fourth article of war 353 
 
 I. Assaulting a superior officer 354 
 
 II. Disobeying a superior officer 355 
 
 332 
 
PUNITIVE ARTICLES OF WAR. 
 
 Section III. Disrespect Insubordination Mutiny Continued, page. 
 
 416. Sixty-fifth article of war 356 
 
 I. Assaulting a warrant officer or a noncommissioned 
 
 officer 357 
 
 II. Disobeying a warrant officer or a noncommissioned 
 
 officer 358 
 
 III. Using threatening or insulting language or behav- 
 ing in an insubordinate or disrespectful manner 
 toward a warrant officer or a noncommissioned 
 
 officer 358 
 
 417. Sixty-sixth article of war 359 
 
 I. Attempting to create a mutiny (or sedition) 359 
 
 II. Beginning a mutiny or sedition 360 
 
 III. Joining in a mutiny or sedition 360 
 
 IV. Exciting a mutiny or sedition 361 
 
 V. Causing a mutiny or sedition 361 
 
 418. Sixty-seventh article of war 361 
 
 I. Failure to suppress mutiny or sedition 361 
 
 II. Failure to give information of mutiny or sedition. 362 
 
 419. Sixty-eighth article of war 363 
 
 I. Disobedience of orders into arrest or confinement- 364 
 
 II, III, IV. Threatening, drawing a weapon upon, or 
 
 offering violence to, an officer, member of the 
 
 Army Nurse Corps, warrant officer, Army field 
 
 clerk, field clerk Quartermaster Corps, band 
 
 leader, or noncommissioned officer 365 
 
 Section IV. Arrest Confinement: 
 
 420. Sixty-ninth article of war 365 
 
 I. Breach of arrest 366 
 
 II. Escape from confinement 366 
 
 420}. Seventieth article of war 367 
 
 I, Unnecessary delay in investigating charges against 
 
 an accused in arrest or confinement 368 
 
 II. Unnecessary delay in carrying a case to a final con- 
 clusion where an accused is placed in arrest or 
 
 confinement 369 
 
 421. Seventy-first article of war 369 
 
 I. Refusing to receive or keep prisoners 370 
 
 422. Seventy-second article of war 370 
 
 I. Failure to render report as prescribed 371 
 
 423. Seventy-third article of war 371 
 
 I. Releasing a prisoner without proper authority 372 
 
 II. Suffering a prisoner to escape through neglect 373 
 
 III. Suffering a prisoner to escape through design 373 
 
 333 
 
CHAPTER XVII. 
 
 Section IV. Arrest Confinement Continued. Page. 
 
 424. Seventy-fourth article of war 374 
 
 I. Refusing or willfully neglecting to deliver an ac- 
 cused person 374 
 
 II. Refusing or willfully neglecting to aid in appre- 
 hending and securing an accused person 375 
 
 Section V. War offenses: 
 
 425. Seventy-fifth article of war 377 
 
 I. Misbehavior before the enemy 378 
 
 II. Running away before the enemy ; 378 
 
 III. Shamefully abandoning or delivering up any com- 
 
 mand 878 
 
 IV. Endangering the safety of any command by any (1) 
 
 misconduct, (2> disobedience, or (3) neglect 379 
 
 V. Speaking words inducing others to so misbehave, 
 run away, or abandon or deliver up, or endanger 
 
 the safety of any command 379 
 
 VI. Casting away arms or ammunition 380 
 
 VII. Quitting post or colors to plunder or pillage 380 
 
 VIII. Occasioning false alarms 381 
 
 426. Seventy-sixth article of war 382 
 
 I. Compelling commander to surrender 382 
 
 II. Attempting to compel commander to surrender 883 
 
 427. Seventy-seventh article of war 883 
 
 I. Making known parole or countersign 383 
 
 II. Giving different parole or countersign 384 
 
 428. Seventy-eighth article of war 384 
 
 I. Forcing a safeguard 885 
 
 429. Seventy-ninth article of war 385 
 
 I. Neglecting to secure captured public property 385 
 
 II. Wrongful appropriation of captured public 
 
 property 886 
 
 430. Eightieth article of war 386 
 
 I. Dealing in captured or abandoned property 887 
 
 II. Failure or delay in reporting receipt of captured 
 
 or abandoned property 888 
 
 431. Eighty-first article of war 888 
 
 I. Relieving the enemy 889 
 
 II. Attempting to relieve the enemy 889 
 
 III. Harboring or protecting the enemy 389 
 
 IV. Holding correspondence with the enemy 390 
 
 V. Giving intelligence to the enemy 890 
 
 432. Eighty-second article of war 391 
 
 I. Being a spy 891 
 
 Section VI. Miscellaneous crimes and offenses: 
 
 433. Eighty-third article of war 392 
 
 I. Suffering military property to be lost, etc 893 
 
 334 
 
PUNITIVE ARTICLES OF WAR. 
 
 Section VI. Miscellaneous crimes and offenses Continued. 
 
 434. Eighty-fourth article of war 394 
 
 I. Selling or wrongfully disposing of military 
 
 property 395 
 
 II. Willfully or through neglect injuring or losing mili- 
 tary property 395 
 
 435. Eighty-fifth article of war 396 
 
 I. Being found drunk on duty 398 
 
 436. Eighty-sixth article of war 398 
 
 I. Being found drunk on post 399 
 
 II. Being found sleeping on post 399 
 
 III. Leaving post before being relieved 400 
 
 437. Eighty-seventh article of war 400 
 
 I. Laying a duty or imposition upon the bringing in 
 
 of victuals, etc 401 
 
 II. Being interested in the sale of victuals, etc 401 
 
 438. Eighty-eighth article of war 402 
 
 I. Intimidating, etc., persons bringing necessaries 402 
 
 439. Eighty-ninth article of war 403 
 
 I. Committing waste or spoil 403 
 
 II. Willfully destroying property 404 
 
 III. Committing depredation or riot 404 
 
 IV. Refusing or omitting to see reparation made 405 
 
 440. Ninetieth article of war 405 
 
 I. Using provoking speeches or gestures 405 
 
 441. Ninety-first article of 'war 406 
 
 I. Fighting or promoting a duel 406 
 
 II. Being concerned in or conniving at fighting a duel- 407 
 
 III. Failing to report knowledge of a challenge 407 
 
 442. Ninety-second article of war 407 
 
 I. Murder 408 
 
 II. Rape 411 
 
 443. Ninety-third article of war 413 
 
 I. Manslaughter ._ 414 
 
 II. Mayhem 415 
 
 III. Arson 416 
 
 IV. Burglary 418 
 
 V. Housebreaking 420 
 
 VI. Robbery 422 
 
 VII. Larceny 424 
 
 VIII. Embezzlement 430 
 
 IX. Perjury 432 
 
 X. Forgery 435 
 
 XL Sodomy 439 
 
 21358 20 22 
 
 835 
 
CHAPTER XVH. 
 
 Section VI. Miscellaneous crimes and offenses Continued. 
 
 443. Ninety-third article of warContinued, rage. 
 XII. Assault with intent to commit any felony 435) 
 
 1. Assault with intent to murder 443 
 
 2. Assault with intent to commit manslaugh- 
 
 ter 444 
 
 3. Assault with intent to commit rape 444 
 
 4. Assault with intent to rob 44." 
 
 5. Assault with intent to commit sodomy 415 
 
 XIII. Assault with intent to do bodily harm with a dan- 
 
 gerous weapon, instrument, or other thing 447 
 
 XIV. Assault with intent to do bodily harm 447 
 
 444. Ninety-fourth article of war 448 
 
 I. Making or causing to be made a false or fraud- 
 ulent claim 450 
 
 II. Presenting or causing to be presented for ap- 
 proval or payment a false or fraudulent 
 
 claim 451 
 
 III. Entering into an agreement or conspiracy to de- 
 fraud the United States through false claims. 452 
 IV. Making, using, procuring, or advising the mak- 
 ing or use of a false writing or other paper in 
 
 connection with claims 453 
 
 V. False oath in connection with claims 454 
 
 VI. Forgery, etc., of signature in connection with 
 
 claims 454 
 
 VII. Delivering less than amount called for by re- 
 ceipt 454 
 
 VIII. Making or delivering receipt without having 
 
 knowledge that the same is true 455 
 
 IX. Embezzlement, misappropriation, sale, etc., of 
 
 military property 456 
 
 X. Purchasing or receiving in pledge of military 
 
 property - 458 
 
 XI. Former officer guilty, while he was in service, 
 of embezzlement of ration savings, post ex- 
 change, company, or other like funds, or of 
 money or other property entrusted to him by 
 enlisted men 459 
 
 445. Ninety-fifth article of war ! 459 
 
 I. Conduct unbecoming an officer and a gentleman 461 
 
 446. Ninety-sixth article of war 461 
 
 I. Disorders and neglects to the prejudice of good or- 
 der and military discipline 461 
 
 ..II. Conduct of a nature to bring discredit upon the 
 
 military service 462 
 
 III. Crimes or offenses not capital 463 
 
 336 
 
PUNITIVE ARTICLES OF WAR. ^ 405 
 
 SECTION I. 
 ENLISTMENT MUSTER RETURNS. 
 
 405. Fifty- fourth Article of War: 
 
 Any person who shall procure himself to be enlisted in the military 
 service of. the United States by means of willful misrepresentation 
 or concealment as to his qualifications for enlistment, and shall re- 
 veive pay or allowance* under irach. enlistment, shall be imalshed as a 
 court -tuartial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 A fraudulent enlistment is an enlistment procured by 
 means of a willful misrepresentation in regard to a quali- 
 fication or disqualification for enlistment, or by intentional 
 concealment of a disqualification which has had the effect 
 of causing the enlistment of a man not qualified to be a sol- 
 dier and who but for such false representation or conceal- 
 ment would have been rejected. 
 
 Willful means intentional, thus excluding cases of mis- 
 take or forgetfulness. 
 
 Misrepresentation and concealment include any act, state- 
 ment, or omission, however made, which has the effect of 
 conveying an untruth or concealing the truth concerning the 
 applicant's qualifications or disqualifications for enlistment. 
 
 The misrepresentation or concealment may be in mat- 
 ters which are designed to open the door to inquiry concern- 
 ing the qualifications or disqualifications for enlistment, such 
 as questions aa to previous service, previous applications for 
 enlistment, etc. 
 
 The qualifications or disqualifications may be prescribed 
 by iaw, regulations, or orders. 
 
 Answers to questions having no bearing on the appli- 
 cant's qualifications for enlistment, such as questions as to 
 applicant's name, address, or immaterial statements as to 
 age, are not sufficient. 
 
 ANALYSIS AND PROOF. 
 
 The article applies only to enlisted men. 
 
 The article defines one offense, i. e., fraudulent enlistment. 
 
 337 
 
Tf 406 CHAPTER XVII. 
 
 I. FRAUDULENT ENLISTMENT. 
 PROOF. 
 
 (a) The enlistment of the accused in the military service 
 as alleged. 
 
 (&) That the accused willfully misrepresented a certain 
 fact or facts regarding his qualifications or disqualifications 
 for enlistment, or willfully that is, intentionally con- 
 cealed a disqualification, as alleged. 
 
 (c) That enlistment was procured by such misrepresenta- 
 tion or concealment. 
 
 (d) That under such enlistment the accused received either 
 pay or allowances, or both, as alleged. 
 
 (e) Where a soldier enlists without a discharge (see 
 A. W. 28), the proof should include the fact that at the time 
 of the alleged enlistment the accused was a soldier, and that 
 the enlistment was entered into without a regular discharge 
 from the former enlistment. 
 
 406. Fifty-fifth Article of War: 
 
 Any officer who knowingly enlists or musters into the military 
 service any person whose enlistment or muster in is prohibited by 
 law, regulations, or orders shall be dismissed from the service or 
 suffer such, other punishment as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the terms of the article. 
 
 The prohibited enlistment must be knowingly made, i. e., 
 it must be shown that the accused knew that the person en- 
 listed or mustered in by him was within the prohibited class. 
 
 Knowingly includes not only a certainty of belief but also 
 such a degree of belief as the ordinarily prudent man acts 
 upon. 
 
 The enlistment or muster in of the person must be at the 
 time prohibited by law or by regulations or orders that were 
 operative as to the accused. 
 
 This excludes cases where the enlistment or muster in was 
 prohibited by regulations or orders of the existence of which 
 the accused was not aware or at the time chargeable with 
 knowledge. 
 
 338 
 
PUNITIVE ARTICLES OF WAR. ^f 407 
 
 ANALYSIS AND PKOOF. 
 
 The article applies only to commissioned officers. While 
 members of the Army Nurse Corps, warrant officers, Army field 
 clerks, and field clerks Quartermaster Corps are officers, they 
 are not commissioned officers, and hence, as the word " officer " 
 used in this article is used in a penal statute, it must be con- 
 strued strictly to mean a commissioned officer. Should any of 
 the aforementioned persons subject to military law commit acts 
 which if done by a commissioned officer would be an offense 
 under this article, they should be charged under A. W. &6. 
 
 The article defines two offenses which may be treated under 
 one heading, as follows : 
 
 i. Officer making UNLAWFUL ENLISTMENT (OR MUSTER IN). 
 
 PROOF. 
 
 (a) The enlistment or muster in by the accused commis- 
 sioned officer of the person named, as alleged. 
 
 (b) That such person was within the classes whose enlist- 
 ment or muster in were prohibited at the time of such enlist- 
 ment or muster in. 
 
 (c) That the accused knew this at the time of the enlist- 
 ment or muster in of such person. 
 
 407. Fifty-sixth Article of War. 
 
 Any officer who knowingly makes a false muster of man or animal, 
 or who signs or directs or allows the signing of any master roll 
 knowing the same to contain a false master or false statement as to 
 the absence or pay of an officer or soldier, or who wrongfully takes 
 money or other consideration on mastering in a regiment, company, 
 or other organization, or on signing master rolls, er who knowingly 
 musters as an officer or soldier a person who is not such officer or 
 soldier, shall be dismissed from the service and suffer such other 
 punishment as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the terms of the article for requirements as to muster 
 rolls and definition of the offenses. 
 
 Muster has been defined as the assembling, inspecting, en- 
 tering upon the formal rolls, and officially reporting as a 
 component part of the command of persons or public ani- 
 mals. (Winthrop, p. 852.) 
 
^[407 CHAPTEE XVII. 
 
 ANALYSIS AND PROOF. 
 
 The article .applies only to commissioned officers. (See com- 
 ments tinder A. W. 55.) 
 
 The article defines a number of offenses which may be 
 treated under the following heads : 
 
 I. Making false muster. 
 
 II. Signing, directing, or allowing the signing of false 
 muster rolls. 
 
 III. Taking money or other consideration on muster or 
 signing muster rolls. 
 
 IV. Mustering as an officer or soldier one who is not. 
 
 I. MAKING FALSE MUSTER. 
 PROOF. 
 
 (a) That the muster of a certain man or animal was made 
 by the accused officer, as alleged. 
 
 ( b) That the muster was false as alleged. 
 
 (c) That the accused officer knew this at the time of mak- 
 ing the muster. 
 
 n. SIGNING, DIRECTING, OR ALLOWING THE SIGNING OF FALSE 
 MUSTER ROLLS. 
 
 PEOOF. 
 
 (a) That the accused officer signed the muster roll or di- 
 rected or allowed the signing of the muster roll as alleged. 
 
 (&) That such muster roll was false in certain particulars 
 as alleged. 
 
 (c) That the accused officer knew this at the time he signed 
 the roll or directed or allowed it to be signed as alleged. 
 
 III. TAKING MONEY OR OTHER CONSIDERATION ON MUSTER OR 
 SIGNING MUSTER ROLLS. 
 
 PEOOF. 
 
 (a) That the accused officer made the muster of the or- 
 ganization or signed the muster rolls as alleged. 
 
 340 
 
PUNITIVE ARTICLES OF WAR. * 408 
 
 (5) That he accepted money or other consideration as a 
 compensation or reward for making the muster or signing the 
 muster rolls. 
 
 (c) That the taking of such money or other consideration 
 was wrongful that is, without legal excuse. 
 
 IV. MUSTERING AS AN OFFICER OR SOLDIER ONE WHO IS NOT. 
 
 PEOOP. 
 
 (a) That the accused officer mustered as an officer or soldier 
 a certain person, as alleged. 
 
 (b) That the person so mustered was not such officer or 
 soldier. 
 
 (c) That the accused knew this when he made the muster. 
 
 408. Fifty-seventh Article of War: 
 
 Every officer whose fluty ft is to render to the War Depart- 
 ment or ether superior authority a return of the state of the 
 troops natter his command, or of the arms*, ammunition, cloth- 
 ing;, fund*, or other property thereunto belonging, who knowingly 
 mi'.kes a false return thereof shall he dismissed from the service and 
 suffer such other punishment as a court-martial may direct. And any 
 officer whe, thrnffh effect w fteslgrn, omits to render such return 
 shall be pujaisfced a orart-cnartial may direct. 
 
 DEFINITIONS AND PRINCIFIJES. 
 
 See the terms of the article, the penal part of which ap- 
 plies broadly to " every officer whose duty it is to render to 
 the War Department or other superior authority a return 
 of the state of the troops under his command, or of the arms, 
 ammunition, clothing, funds, or other property thereunto 
 belonging." 
 
 ANALYSIS AND PROOF. 
 
 The article applies to commanding officers only. 
 The article defines two offenses : 
 
 I. Making false returns. 
 
 II. Omitting to render returns. 
 
If 409 CHAPTER xvn. 
 
 I. MAKING FALSE RETURNS. 
 
 As to knowingly, see remarks under fifty-fifth article, 
 (Par. 406, supra.) 
 
 PROOF. 
 
 (a) That the accused officer was a commanding officer, as 
 alleged. 
 
 (b) That it became his duty as such to render to a certain 
 superior authority a certain return as specified. 
 
 (c) That he complied with such duty, and that the return 
 so made was false in certain particulars, as alleged. 
 
 (d) That the accused officer knew that the return was 
 false at the time of making it. 
 
 II. OMITTING TO RENDER RETURNS. 
 
 The term "neglect" involves the idea of culpability and 
 includes the case of an officer who, knowing the return to 
 be due, fails to render it through remissness or procrasti- 
 nation. 
 
 PROOF. 
 
 (a) That the accused officer was a commanding officer as 
 alleged. 
 
 (5) That it became his duty as such to render to a certain 
 superior authority a certain return as specified. 
 
 (c) That he omitted through neglect or design to render 
 such return. 
 
 SECTION II. 
 
 DESERTION ABSENCE WITHOUT LEAVE. 
 
 409. Fifty-eighth Article of War: 
 
 Any person subject to military law who deserts or attempts to de- 
 sert the service of the United States shall, if the offense be com- 
 mitted in time of war, suffer death or such other punishment s ;i 
 court-martial may direct, and, if the offense be committed at any 
 other time, any punishment, excepting; death, that a court -martial 
 may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 Desertion is absence without leave accompanied by the in- 
 tention, either (a) not to return, (b) to avoid hazardous duty, 
 or (c) to shirk important service. (A. W. 28.) 
 
 342 
 
PUNITIVE ARTICLES OF WAR. ^f 409 
 
 A. Absence Without Leave, with Intent Not to Return. 
 
 Both elements are essential to the offense. The offense be- 
 comes complete when the person absents himself without au- 
 thority from his place of service with intent not to return 
 thereto. A prompt repentance and return are no defense, 
 nor is it a defense that the deserter at the time of departure 
 intended to report for duty elsewhere. Thus, where a soldier 
 leaves his post intending never to go back unless a certain 
 event happens, or leaves his post with such intent and reports 
 at another post, he is a deserter ; but unless such intent exists 
 at some time the soldier can not be a deserter whether his 
 purpose is to stay away a definite or indefinite length of time. 
 
 Where a soldier, without having been discharged, again 
 enlists in the Army or in the Militia in the service of the 
 United States, such enlistment is, by the twenty-eighth 
 article of war made sufficient evidence of desertion. In such 
 a case, other proof of the intent permanently to stay away 
 from his former place of service and of the status of absence 
 without leave therefrom are unnecessary. 
 
 B. Absence Without Leave, with Intent to Avoid Hazardous 
 
 Duty. 
 
 C. Absence Without Leave, with Intent to to Shirk Important 
 
 Service. 
 
 " Short desertion." Under the twenty-eighth article of war 
 as amended by the code of 1920 any person subject to military 
 law who " quits his organization or place of duty with the intent 
 to avoid hazardous duty or to shirk important service shall be 
 deemed a deserter." Congress thereby adopted the principle 
 that willful absence from dangerous or hazardous duty is deser- 
 tion, as it is in the British service (" short desertion "). Tinder 
 this article a man who absents himself in a deliberate or clandes- 
 tine manner, with, a view of (1) avoiding some hazardous duty 
 or (2) of shirking some important service, though he may in- 
 tend to return when the evasion of the duty or the service is 
 accomplished, is liable to be convicted of desertion, just as if 
 an intention never to return had been proved against him. 
 
 343 
 
^[409 * CHAPTER XVII, 
 
 (Brit. M. M. M., Chap. HI, sec. 16, pp. 18-19). Thus, if a 
 man on the eve of the embarkation of his regiment for overseas 
 service, or when ordered to aid in the suppression of riot or 
 insurrection, or on strike duty, conceals himself in barracks, or 
 is absent without leave, the court may be quite justified in 
 presuming an intention to escape the hazardous duty or impor- 
 tant service on which he was ordered, and in convicting him of 
 desertion. 
 
 ANALYSIS AND PROOF. 
 
 The article includes all persons subject to military law. 
 The article covers two offenses, as follows: 
 
 I. Desertion. 
 
 II. Attempting to desert. 
 
 I. DESERTION. 
 FROOF. 
 
 (a) That the accused absented himself, or remained ab- 
 sent without authority, from his place of service, as alleged. 
 
 (b) That, either, 
 
 1. He intended, at the time of absenting himself or 
 at some time during his absence, to remain away perma- 
 nently from such place: or, 
 
 2. That at the time he absented himself either the or- 
 ganization to which he belonged, or he himself, was under 
 
 "orders or anticipated orders involving either (a) hazardous 
 duty or (b) some important service, and that Ms absence 
 without leave was so timed as to appear calculated to 
 enable him to avoid such hazardous duty or to shirk such 
 important service, as the case may be. 
 
 (c) That his absence was of a duration and was termi- 
 nated as alleged. 
 
 (d) That his act was done, if so alleged, in the execution 
 of a certain conspiracy, or in the presence of a certain out- 
 break of Indians, or of a certain unlawful assemblage which 
 his organization was opposing, or in time of war where the 
 court will not take judicial notice of the existence of a status 
 of war. 
 
 344 
 
PUNITIVE ARTICLES OF WAR. ^f 409 
 
 (e) Where the soldier enlisted without a discharge (see 
 A. W. 28), that the accused was a soldier in a certain organi- 
 zation of the Army as alleged ; and that, without being dis- 
 charged from such organization, he again enlisted in the 
 Army, or in the militia when in the service of the United 
 States, or in the Navy, or the Marine Corps of the United 
 States, or in some foreign army, as alleged. In this case 
 proof of the absence without leave and of the intention not 
 to return become unnecessary. 
 
 (f) When an officer, having tendered his resignation, and 
 prior to due notice of the acceptance of the same, quits his 
 post, etc. (see A. W. 28), that the accused was a commissioned 
 officer of the Army as alleged; that he has tendered his resig- 
 nation; and that, prior to due notice of acceptance thereof, 
 he did quit his post or proper duties without leave ; and that he 
 did so with intent to absent himself permanently from his post 
 or proper duties. 
 
 HOTE. In proving a specification alleging that the accused quit 
 his organization or place of duty with the intent to avoid hazardous 
 duty, or with the intent to shirk important service, the trial judge 
 advocate should offer in evidence proof of facts tending to show that 
 the accused knew with reasonable certainty that he would be required 
 for such hazardous duty or important service, as the case may be. To 
 prove this the prosecution should show (a) that the accused was 
 warned; or (b) that the organization, as a whole, was warned, if 
 possible on parade at which the roll was called and the accused was 
 present; or (c) that, having regard to the orders, or the usual cus- 
 toms of reliefs, the accused must have known that the turn of his 
 company, etc., was imminent (an officer or senior noncommissioned 
 officer should give evidence of the usual custom of reliefs, and of 
 the dates of the hazardous duties or important service which the 
 accused missed or which his absence was timed to miss) ; or (d) 
 that the period of absence was so long that the accused must have 
 known that he would miss hazardous duty or important service. 
 
 H. ATTEMPTING TO DESERT. 
 
 An attempt to desert is an overt act other than mere prep- 
 aration toward accomplishing a purpose to desert. 
 
 Usually the endeavor of the accused toward getting away 
 will be frustrated by an agency independent of his own will ; 
 but once the attempt is made a turning back by the accused 
 
 345 
 
If 410 CHAPTER XVII. 
 
 of his own accord does not obliterate the offense. An in- 
 stance of the offense is : A soldier intending to desert hides 
 himself in an empty freight car on the post, intending to 
 effect his escape from the post by being taken out in the car. 
 
 PBOOF. 
 
 (a) That the accused made the attempt by doing the overt 
 act or acts alleged. 
 
 (b) That he intended to desert at the time of doing such 
 act or acts. 
 
 (c) That his act was done, if so alleged, in the execution 
 of a certain conspiracy, or in the presence of a certain out- 
 break of Indians, or a certain unlawful assemblage which his 
 organization was opposing, or in time of war where the court 
 will not take judicial notice of the existence of the status 
 specified. 
 
 NOTE. The attempt to desert may be with the intent either (a) 
 not to return, (b) to avoid hazardous duty, or (c) to shirk important 
 service. (See subpar. I of this paragraph, supra.) The proof should 
 correspond to the allegations of the specification, as the case may be. 
 
 410. Fifty-ninth Article of War: 
 
 Any person subject to military law who advises or persuades 
 or knowingly assists another to desert the service of the United 
 States shall, if the offense he committed in time of war, suffer 
 death or such other punishment as a court-martial may direct, 
 and, if the offense he committed at any other time, any punish- 
 ment, excepting; death, that a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the definition of desertion under the next preceding 
 article. 
 
 As to knowingly, see remarks under the fifty-fifth article. 
 
 The offenses of persuading and assisting desertion are not 
 complete unless the desertion occurs; but the offense of ad- 
 vising is complete when the advice is given, whether the 
 person advised deserts or not. 
 
 It is not necessary that the accused act alone in giving the 
 advice or assistance, or in the persuasion; and he may act 
 through other persons in committing the offenses. 
 
 846 
 
PUNITIVE ARTICLES OF WAR. ^ 410 
 
 ANALYSIS AND PROOF. 
 
 The article applies to all persons subject to military law. 
 See article 2. 
 The article defines three offenses, as follows : 
 
 I. Advising desertion. 
 
 II. Persuading desertion. 
 
 III. Assisting desertion. 
 
 I. ADVISING DESERTION. 
 PEOOF. 
 
 (a) That the accused advised a person subject to military- 
 law to desert the service as alleged. 
 
 (b] That the act was done, if so alleged, in time of war, 
 where the court will not take judicial notice of the status 
 of war. 
 
 II. PERSUADING DESERTION. 
 PROOF. 
 
 (a) That the accused used persuasion to induce a person 
 subject to military law to desert the service as alleged. 
 
 (b) That the person whom he persuaded deserted as 
 alleged, and was induced to do so by such persuasion. See 
 proof of desertion in the next preceding article. 
 
 (c) That the act was done, if so alleged, in time of war, 
 where the court will not take judicial notice of the status 
 of war. 
 
 in. ASSISTING DESERTION. 
 PROOF. 
 
 (a) That the accused knowingly assisted a person subject 
 to military law to desert the service as alleged. 
 
 (b) That the person given such assistance deserted as al- 
 leged. See proof of desertion in the next preceding article. 
 
 (c) That the act was done, if so alleged, in time of war, 
 where the court will not take judicial notice of the status of 
 war. 
 
 347 
 
fl 411 OHAPTES XVII. 
 
 411. Sixtieth Article of War: 
 
 Any officer who, after having discovered that a soldier in his com- 
 mand is a deserter from the military or navl service or from the 
 Marine Corps, retains such deserter in his command without inform- 
 ing superior authority or the commander of the organization to 
 which the deserter belongs, shall be punished as a court-martial may 
 direct. 
 
 DEFINITIONS AND PRINCIPLES, 
 
 See definition of desertion under article 58. 
 
 Discovered does not imply a certainty on the one hand or a 
 mere suspicion on the other. It implies such a belief as the 
 ordinarily prudent officer would act upon. 
 
 ANALYSIS AND PROOF. 
 
 The article applies only to commanding officers. 
 The article defines one offense: 
 
 I. RETAINING A DESERTER. 
 PBOOF. 
 
 (a) That the accused officer exercised a certain command 
 as alleged. 
 
 (5) That white so in command he discovered that a certain 
 soldier in his command was a deserter from the military or 
 naval service, or from the Marine Corps, as alleged. 
 
 (c) That such soldier was in fact such a deserter. See 
 proof of desertion under fifty -eighth article. 
 
 (d) That he retained such deserter in his command with- 
 out informing superior authority or the commanding officer 
 of the organization to which the deserter belongs, as alleged. 
 
 412. Sixty-first Article of War: 
 
 Any person snfcject to military law who fails to repair at the fixed 
 tine to the properly appointed place of duty, or goes from the snme 
 without proper leave, or absents himself from his command, guard, 
 quarters, station, or camp without proper leave* shall be punished as 
 a court-martial *aey direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The article is designed to cover every case not elsewhere 
 provided for where any person subject to military law ia 
 through his own fault not at the place where he is required 
 to be at a time when he should be there. 
 
 84S 
 
PUNITIVE ARTICLES OF WAE. * 412 
 
 The first part of the article that relating to properly ap- 
 pointed place of duty applies whether such place is ap- 
 pointed as a rendezvous for several or for one only. Thus, it 
 would apply in the case of a soldier failing to report as the 
 kitchen police or leaving such duty after reporting. 
 
 A soldier turned over to the civil authorities upon appli- 
 cation is not punishable under this article for the period he 
 is held by them under such delivery. So, also, where a sol- 
 dier is absent with leave and is held, tried, and acquitted by 
 the civil authorities, his status does not change to absence 
 without leave. But where the soldier is absent without leave 
 when tried, although acquitted, or being absent with leave 
 is convicted and held beyond the expiration of his pass, or 
 being absent without leave is unable to return through sick- 
 ness or lack of transportation facilities, or other disabilities, 
 the period of the absence without leave will include the time 
 he is so detained j but, in view of the fact that the absence 
 during such time is enforced, it would be appropriate not 
 to consider the length of such detention for the purpose of 
 administering punishment in the case. 
 
 In computing the length in days of a period of absence for 
 the purpose of determining the maximum punishment for 
 an absence without leave under this article, periods of 24 
 hours are considered one day. Thus, a soldier who absents 
 himself from 11.59 p. m. one day to 12.01 a. m. the next is 
 absent only a fraction of a day as far as the maximum pun- 
 ishment order is concerned, although the period of absence 
 cover parts of two calendar days. 
 
 ANALYSIS AND PEOOF. 
 
 The article applies to any person subject to military law. 
 See Article 2. 
 
 The article defines a number of offenses which may be 
 treated under the general term "Absence without leave." 
 
 I. ABSENCE WITHOUT LEAVE. 
 PROOF. 
 
 (1) Where the accused fails to appear at or goes from a 
 place of duty. 
 
 (a) That a certain authority appointed a certain time and 
 place for a certain duty by the accused, as alleged. 
 
 349 
 
If 413 CHAPTER XVII. 
 
 (b) That he failed to report to such place at the proper 
 time, or having so reported went from the same without 
 authority from any one competent to give him leave to do so. 
 
 (2) Where the accused is charged with absenting himself 
 without proper leave. 
 
 (a) That the accused absented himself from his command, 
 guard, quarters, station, or camp for a certain period, as 
 alleged. 
 
 (b) That such absence was without authority from any 
 one competent to give him leave. 
 
 SECTION III. 
 DISRESPECT INSUBORDINATION MUTINY. 
 
 413. Sixty -second Article of War: 
 
 Any officer who uses contemptuous or disespectful words against 
 the President, Vice President, the Congress of the United States, the 
 Secretary of "War, or the governor or legislature of any State, Terri- 
 tory, or other possession of the United States in which he is quar- 
 tered shall be dismissed from the service or suffer such other punish- 
 ment as a court-martial may direct. Any other person subject to 
 military law who so offends shall be punished as a court-martial 
 may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The contemptuous or disrespectful words, as used in this 
 article, cover language disrespectful and contemptuous in 
 themselves, such as abusive epithets, denunciatory or con- 
 tumelious expressions, or intemperate or malevolent com- 
 ments upon official or personal acts, etc., or words disre- 
 spectful or contemptuous because of the connection in 
 which and the circumstances under which they are used. 
 
 It is essential that a person against whom such words 
 are used be in one of the offices named at the time ; but it is 
 immaterial whether the words are spoken against him in his 
 official or private capacity. 
 
 The truth or falsity of the statements is, as a rule, imma- 
 terial. 
 
 Trials for offenses covered by this article have usually been 
 for the use of " contemptuous or disrespectful words against 
 the President," or the Government mainly as represented by 
 
 350 
 
PUNITIVE ARTICLES OF WAR. 
 
 the President. The deliberate employment of denunciatory 
 or contumelious language in regard to the President, whether 
 spoken in public or published, or conveyed in a communica- 
 tion designed to be made public, has, in repeated cases, been 
 made the subject of charges and trial under this article, 
 (Digest, p. 120 ; Winthrop, p. 872.) 
 
 The language used must be disrespectful or contemptuous. 
 Adverse criticism of the Executive expressed in emphatic 
 language in the heat of political discussion, but not ap- 
 parently intended to be personally disrespectful, should not 
 be made the basis of trial under this article. (Idem.) 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 
 The article defines a number of offenses which may be 
 treated under the general term of " disrespect toward the 
 President, etc." 
 
 PEOOF. 
 
 (a) That the accused used certain contemptuous or dis- 
 respectful words against the President, or other of the au- 
 thorities mentioned in the article, as alleged. 
 
 ( b ) Where such words are not contemptuous or disrespect- 
 ful in themselves, that the words were used under certain cir- 
 cumstances or in a certain connection, or that a certain in- 
 tended meaning gave them the character of contemptuous or 
 disrespectful words, as alleged. 
 
 414. Sixty-third Article of War: 
 
 Any person subject to military law who behaves himself with dis- 
 respect toward his superior officer shall be punished as a court- 
 martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The disrespectful behavior contemplated by this article is 
 such as detracts from the respect due to the authority and 
 person of a superior officer. It may consist in acts or lan- 
 guage, however expressed. 
 
 21358 20 23 
 
 351 
 
^ 414 CHAPTER XVII. 
 
 It is not essential that the disrespectful behavior be in the 
 presence of the superior, but in general it is considered objec- 
 tionable to hold one accountable under this article for what 
 was said OF done by him in a purely private conversation. 
 
 The officer toward whom the disrespectful behavior was 
 directed must have been the superior of the accused at the 
 time of the acts charged; but by superior is not necessarily 
 meant a superior in rank, as a line officer, though inferior in 
 rank, may be the commanding officer, and thus the superior 
 of a staff officer, such as a surgeon. 
 
 Disrespect by words may be conveyed by opprobrious epi- 
 thets or other contumelious or denunciatory language. (Win- 
 throp, p. 874.) 
 
 Disrespect by acts may be exhibited in a variety of modes 
 as neglecting the customary salute, by a marked disdain, in- 
 difference, insolence, impertinence, undue familiarity, or 
 other rudeness in the presence of the superior officer. (Win- 
 throp, p. 875.) 
 
 It is not essential that the behavior be intentional, and it is 
 immaterial that only facts were stated ; but where the person 
 who did the acts or spoke the words did not know that the 
 person against whom they were directed was his superior offi- 
 *ier, such ignorance is a defense. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 See Article 2. 
 
 The article defines one offense, that is, disrespect toward a 
 superior officer. 
 
 I. DISRESPECT TOWARD A SUPERIOR OFFICER. 
 
 PROOF. 
 
 r 
 
 (a) That the accused did or omitted to do certain acts or 
 spoke certain words toward a certain officer, as alleged. 
 
 (5) That the behavior involved in such acts, omissions, or 
 words was. under certain circumstance, or in a certain con- 
 nection or with a certain meaning, as aEeged. 
 
 352 
 
PUNITIVE ARTICLES OF WAR. 
 
 415 
 
 (c) That the officer toward whom the acts, omissions, or 
 words were directed was the accused's superior officer. 
 
 415. Sixty-fourth Article of War: 
 
 Any person swfojeet tx military law wlie> on any pretense whatso- 
 ever, strikes his superior officer or draws or lifts up any weapon or 
 offers any violence against him, being: in the execution of his office, 
 or willfully disobeys any lawful command of his sttperfor officer, shall 
 s-.:lTcr death or such other punishment as a court -martial m:ty direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The phrase "on any pretense whatsoever" is not to be 
 understood as excluding as a defense the fact that the strik- 
 ing was done in legitimate self-defense or in the discharge 
 of some duty, such as is enjoined by the sixty-seventh article. 
 
 By " superior officer " is meant not only the commanding 
 officer of the. accused, whatever may be the relative rank of 
 the two, but any other commissioned officer of rank supe- 
 rior to that of the accused. That the accused did not know 
 the officer to be his superior is available as a defense. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 See Article 2. 
 
 The article embraces ofi'enses indicated by the following 
 diagram : 
 
 Any person 
 subject to 
 military 
 law who 
 
 Strikes 
 
 
 or 
 
 
 Draws ) 
 1 Any weapon 
 
 Lifts up] a ^ inst 
 
 His superior officer 
 being in the ex- 
 ecution of his 
 
 or 
 
 office. 
 
 Offers any violence 
 
 
 against 
 
 
 or 
 
 On any pretense 
 whatsoever 
 
 Willfully disobeys any lawful command of his- superior 
 officer. 
 
 These offenses may be treated under the following heads: 
 
 I. Assaulting superior officer. 
 
 II, Disobeying superior officer. 
 
 353 
 
^j 415 CHAPTER XVII. 
 
 I. ASSAULTING SUPERIOR OFFICER. 
 
 The word " strikes " means an intentional blow with any- 
 thing by which a blow can be given. 
 
 The phrase " draws or lifts up any weapon against " covers 
 any simple assault committed in the manner stated. 
 
 The offense consisting either in a mere threatening of vio- 
 lence without anything further being proposed, or in an 
 attempt to do violence which is not effectuated. The weapon 
 chiefly had in view by the word " draw " is no doubt the 
 sword; the term might, however, apply to a bayonet in a 
 sheath, or to a pistol; and the drawing of either in an 
 aggressive manner, or the raising or brandishing of the same 
 minaciously in the presence of the superior and at him is 
 the sort of act contemplated. The raising in a threatening 
 manner of a firearm (whether or not loaded) or of a club, or 
 any implement or thing by which a serious blow could be 
 given, would be within the description " lifts up." (Win- 
 throp, p. 879.) 
 
 The phrase "offers any violence against him" comprises 
 any form of battery or of mere assault not embraced in the 
 preceding more specific terms " strikes " and " draws or lifts 
 up." But the violence where not executed must be physically 
 attempted or menaced. A mere threatening in words would 
 not be an offering of violence in the sense of the article. 
 (Winthrop, pp. 879 and 880.) 
 
 An officer is in the execution of his office " when engaged in 
 any act or service required or authorized to be done by him 
 by statute, regulation, the order of a superior, or military 
 usage." (Winthrop, p. 881.) 
 
 PROOF. 
 
 (a) That the accused struck a certain officer with or with- 
 out a certain thing or weapon or drew or lifted up a certain 
 weapon against him or offered violence against him, as 
 alleged. 
 
 (I)) That such officer was the accused's superior officer at 
 the time. 
 
 (c) That such superior officer was in the execution of his 
 office at the time, as alleged. 
 
 354 
 
PUNITIVE AKTICLES OF WAR. ^f 415 
 
 II. DISOBEYING SUFERIOR OFFICER. 
 
 The willful disobedience contemplated is such as shows an 
 intentional defiance of authority, as where a soldier is given 
 an order by an officer to do or cease from doing a particular 
 thing at once and refuses to do what is ordered or simply 
 omits to do it. 
 
 Where the order is operative in futuro, a mere neglect to 
 comply with it " through heedlessness, remissness, or forget- 
 f ulness is an offense chargeable not in general under this 
 article, but under the general article" (Winthrop, p. 884), 
 and the same is true of a mere refusal to obey such an order 
 before the time set for its execution. 
 
 The order must relate to military duty and be one which 
 the superior officer is authorized under the circumstances to 
 give the accused. Disobedience of an order which has for 
 its sole object the attainment of some priv.ate end, or which is 
 given for the sole purpose of increasing the penalty for an 
 offense which it is expected the accused may commit, is not 
 punishable under this article. 
 
 An accused can not be convicted of a violation of this 
 article if the order was in fact unlawful ; but, unless the order 
 is plainly illegal, the disobedience of it is punishable under 
 the general article, i. e., the ninety-sixth article. 
 
 To justify from a military point of view a military in- 
 ferior in disobeying the order of a superior, the order must 
 be one requiring something to be done which is palpably a 
 breach of law and a crime or an injury to a third person, or 
 is of a serious character (not involving unimportant conse- 
 quences only) and if done would not be susceptible of being 
 righted. An order requiring the performance of a military 
 duty or act can not be disobeyed with impunity unless it has 
 one of these characteristics. 
 
 That obedience to a command involved a violation of the 
 accused's religious scruples is not a defense. 
 
 Failure to comply with the general or standing orders of a 
 corps area, department, division, district, post, etc., or with the 
 Army Regulations, is not an offense under this article, but 
 
 355 
 
f 416 CHAPTER XVII. 
 
 under the ninety-sixth article; and so of a nonperformance 
 by a subordinate of any mere routine duty. 
 
 The form of the order is immaterial, as is the method by 
 which it is transmitted to the accused; but the communica- 
 tion must amount to an order and the accused must know 
 that it is from his superior officer; that is, a commissioned 
 officer who is authorized to give the order whether he is su- 
 perior in rank to the accused or not. 
 
 PEOOF. 
 
 (a) That the accused received a certain command from a 
 certain officer as alleged. 
 
 (b) That such officer was the accused's superior officer. 
 
 (c) That the accused willfully disobeyed such command. 
 
 416. Sixty-fifth Article of War: 
 
 Any soldier who strikes or assaults, or who attempts or threatens 
 to strike or assault, or willfully disobeys the lawful order of a war- 
 rant officer or a noncommissioned officer while in the execution of 
 his office, or uses threatening or insulting language, or behaves in n 
 insubordinate or disrespectful manner toward a warrant officer or a 
 noncommissioned officer while in the execution of his ofiice, shall be 
 punished as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 This article has the same general objects with respect to 
 warrant officers and noncommissioned officers as the sixty- 
 third and sixty-fourth articles have with respect to commis- 
 sioned officers, namel} 7 , to insure obedience to their lawful 
 orders, and to protect them from violence, insult, or dis- 
 respect. 
 
 The terms " wiHful disobedience," "lawful order," and " in 
 the execution of his office " are used in the same sense as in 
 the sixty- fourth article. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to enlisted men only. 
 The article embraces offenses indicated by the following 
 diagram : 
 
 356 
 
PUNITIVE ARTICLES OF WAK. 
 
 416 
 
 Any soldier who 
 
 Strikes 
 or 
 Assaults 
 
 or 
 Attempts 1 rStrike 
 
 or !to | or 
 Threatens J [Assault 
 
 or 
 
 Willfully disobeys the 
 lawful order of 
 or 
 
 (Threatening language 
 Uses J or 
 
 [insulting language 
 or 
 
 [Insubordinate manner 
 Behaves in an < or 
 
 [Disrespectful manner 
 
 A warrant officer or a noncom- 
 missioned officer while iu 
 the execution of his office. 
 
 ("Toward a war- 
 rant officer or 
 a noncommis- 
 sioned officer 
 while in the 
 execution of 
 his office. 
 
 These offenses may be briefly treated under the following 
 headings : 
 
 I. Assaulting a warrant officer or a noncommissioned 
 officer, 
 
 IL Disobeying a warrant officer or a noncommissioned 
 officer. 
 
 III. Using threatening or insulting language or behaving 
 in an insubordinate or disrespectful manner toward a warrant 
 officer or a noncommissioned officer. 
 
 i. ASSAULTING A warrant officer or a NONCOMMISSIONED 
 
 OFFICER. 
 
 For definition of the offense, see ninety-third article. (Di- 
 vision XII, par. 443, infra.) 
 
 The part of the article relating to assaults covers any 
 unlawful violence against a warrant officer or a noncommis- 
 sioned officer in the execution of his office, whether such vio- 
 lence is merely threatened or is advanced in any degree tow- 
 ard application. 
 
 PROOF. 
 
 (a) That the accused soldier struck a certain warrant 
 officer or noncommissioned officer as alleged, with a certain 
 
 357 
 
^f 416 CHAPTER XVII. 
 
 thing, or assaulted or attempted or threatened to strike or 
 assault him in a certain manner, as alleged. 
 
 (b) That such warrant officer or noncommissioned officer 
 was at the time in the execution of his office, as alleged. 
 
 ii. DISOBEYING A warrant officer or a NONCOMMISSIONED 
 
 OFFICER. 
 
 
 
 PBOOF. 
 
 (a) That the accused soldier received a certain command 
 from a certain warrant officer or noncommissioned officer, as 
 alleged. 
 
 (b) That the warrant officer or noncommissioned officer 
 was in the execution of his office. 
 
 (c) That the accused soldier willfully disobeyed such com- 
 mand. 
 
 III. USING THREATENING OR INSULTING LANGUAGE OR BEHAV- 
 ING IN AN INSUBORDINATE OR DISRESPECTFUL MANNER TO- 
 WARD A warrant officer or a NONCOMMISSIONED OFFICER. 
 
 The phrase " while in the execution of his office " limits the 
 application of this part of the article to language and be- 
 havior within sight or hearing of the warrant officer or non- 
 commissioned officer toward whom it is used; the word 
 " toward " not being used in the same sense as in the sixty- 
 third article of war. 
 
 PKOOF. 
 
 (a) That the accused used certain language or did or 
 omitted to do certain acts under certain circumstances, or 
 in a certain manner or with a certain intended meaning, as 
 alleged. 
 
 (b) That such language or behavior was used toward a 
 certain warrant officer or noncommissioned officer. 
 
 (c) That such warrant officer or noncommissioned officer 
 was at the time in the execution of his office, as alleged. 
 
 358 
 
PUNITIVE ARTICLES OF WAR. ^f 417 
 
 417. Sixty-sixth Article of Wur: 
 
 Any person subject to military law who attempts to create or wh 
 begins, excites, causes, or joins in any mutiny or sedition in any 
 company, party, post, camp, detachment, guard, or other command 
 shall suffer death or such other punishment as a court-martial may 
 direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 Mutiny imports collective insubordination, and necessarily 
 includes some combination of two or more persons in resisting 
 lawful military authority. 
 
 Sedition implies the raising of commotion or disturbance 
 against the State ; it is a revolt against legitimate authority 
 and differs from mutiny in that it implies a resistance to law- 
 ful civil power. 
 
 The concert of insubordination contemplated in mutiny or 
 sedition need not be preconceived nor is it necessary that the 
 act of insubordination be active or violent. It may consist 
 simply in a persistent and concerted refusal or omission to 
 obey orders or to do duty with an insubordinate intent. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 The article defines five offenses relating to mutiny and five 
 relating to sedition. 
 
 I. Attempting to create a mutiny (or sedition). 
 
 II. Beginning a mutiny (or sedition). 
 
 III. Joining in a mutiny (or sedition). 
 
 IV. Exciting a mutiny (or sedition). 
 
 V. Causing a mutiny (or sedition). 
 
 I. ATTEMPTING TO CREATE A MUTINY GC SEDITION. 
 
 An attempt to commit a crime is an act done with specific 
 intent to commit the particular crime and proximately tend- 
 ing to, but falling short of, its consummation. There must 
 be an apparent possibility to commit the crime in the manner 
 specified. Voluntary abandonment of purpose after an act 
 constituting an attempt is not a defense. 
 
 The intent which distinguishes mutiny or sedition is the 
 intent to resist lawful authority in combination with others, 
 
 359 
 
^f 417 CHAPTER XYH, 
 
 The intent to create a mutiny or sedition may be declared in 
 words, or, as in all other cases, it may be inferred from acts 
 done or from the surrounding circumstances. 
 
 A single individual may harbor an intent to create a 
 mutiny and may commit some overt act tending to create 
 a mutiny or sedition and so be guilty of an attempt to create 
 a mutiny or sedition, alike whether he was joined by others 
 or not, or whether a mutiny or sedition actually followed 
 or not. 
 
 PROOF. 
 
 (a) An act or acts of accused which approximately tended 
 to create a certain intended (or actual) collective insubordi- 
 nation. 
 
 (&) A specific intent to create a certain intended (or 
 actual) collective insubordination. 
 
 (c) That the insubordination occurred or was intended to 
 occur in a company, party, post, camp, detachment, guard, 
 or other command in the Army of the United States. 
 
 II-III. BEGINNING OR JOINING IN A MUTINY OR SEDITION. 
 
 There can be no actual mutiny or sedition until there has 
 been an overt act of insubordination joined in by two or 
 more persons, and so no person can be guilty of beginning 
 or joining in a mutiny unless an overt act of mutiny is 
 proved. A person can not be guilty of beginning a mutiny 
 unless he is the first, or among the first, to commit an overt 
 act of mutiny; a person can not join in a mutiny without 
 joining in some overt act. Hence presence of the accused at 
 the scene of mutiny is necessary in these two cases. 
 
 PROOF. 
 
 (a) The occurrence of certain collective insubordination 
 in a company, party, post, camp, detachment, or other com- 
 mand in the Army of the United States. 
 
 (5) That the accused began or joined in the certain collec- 
 tive insubordination. 
 
 360 
 
PUNITIVE ARTICLES OF WAR. ^f 418 
 
 IV-V. CAUSING OK EXCITING A MUTINY OR SEDITION. 
 
 As in II and III, supra, no person can be guilty of causing 
 or exciting a mutiny unless an overt act of mutiny follows 
 his efforts. But a person may excite or cause a mutiny with- 
 out taking personal part in or being present at the demon- 
 strations of mutiny which result from his activities. 
 
 PROOF. 
 
 (a) The occurrence of certain collective insubordination 
 in a certain company, party, post, camp, detachment, or 
 guard, or other command in the Army of the United States. 
 
 (b) Acts of the accused tending to cause or excite the cer- 
 tain collective insubordination. 
 
 418. Sixty-seventh Article of War: 
 
 Any officer or soldier who, being present at any mutiny or sedition, 
 does not use his utmost endeavor to suppress the same, or knowing 
 or having reason to believe that a mutiny or sedition is to take place, 
 does not without delay give information thereof to his commanding 
 officer shall suiter death or such other punishment as a court-martial 
 may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 See " Mutiny and Sedition," paragraph 417, supra. 
 ANALYSIS AND PROOF. 
 
 The article applies only to officers and soldiers. It does not 
 apply to members of the Army Nurse Corps, warrant officers, 
 Army field clerks, field clerks Quartermaster Corps, or any other 
 persons subject to military law, except officers and enlisted men. 
 
 It defines two offenses relating to mutiny and two relating 
 to sedition. 
 
 I. Being present at a mutiny (or sedition), failing to use 
 the utmost endeavor to suppress it. 
 
 II. Having knowledge or reason to believe that a mutiny 
 (or sedition) is to take place, failing to give information 
 thereof to his commanding officer without delay. 
 
 I. FAILURE TO SUPPRESS MUTINY ( OR SEDITION ) . 
 
 Mere presence countenancing such collective insubordina- 
 tions and disturbances as mutinies, riots, and seditions has 
 been considered criminal for over a century. The article 
 
 361 
 
^ 418 CHAPTER XVII. 
 
 goes a step further and requires of officers and soldiers their 
 utmost endeavors to suppress such disorders. 
 
 One is not present at a mutiny unless an act or acts of col- 
 lective insubordination occur in his presence. 
 
 Utmost endeavor is a relative term. The rule governing 
 the lawful use of force to suppress crime or arrest wrong- 
 doers is that as much force may be used as is reasonably neces- 
 sary to accomplish the desired purpose, and no more. This 
 article has been construed as authorizing and requiring the 
 most extreme measures even to the using of a dangerous 
 weapon and the taking of life where such extreme measures 
 are reasonably necessary. But all the circumstances of neces- 
 sity are to be considered. Means which in war and before 
 the enemy would be not only justified but laudable, might, 
 in time of peace, render the person employing them crim- 
 inally and civilly liable for abuse of authority. 
 
 PROOF. 
 
 (a) The occurrence of an act or acts of collective insubor- 
 dination in the presence of the accused. 
 
 (b) Acts or omissions of the accused which constitute a 
 failure to use his utmost endeavor to suppress such acts. 
 
 II. FAILURE TO GIVE INFORMATION OF MUTINY (OR SEDITION.) 
 
 Where circumstances known to the accused are such as 
 would have caused a reasonable man in the same or similar 
 circumstances to believe that a mutiny or sedition was im- 
 pending, these circumstances will be sufficient to charge the 
 accused with such reason to believe as will render him cul- 
 pable under the article. 
 
 It is not a necessary element of the crime that the im- 
 pending mutiny or sedition materialize. 
 
 " Delay " imports the lapse of an unreasonable time with- 
 out action. 
 
 The expression " commanding officer " here includes in its 
 meaning any officer having a military command over the 
 person who has knowledge or reason to believe that a mu- 
 tiny or sedition is impending. 
 
 302 
 
PUNITIVE ARTICLES OF WAR. If 419 
 
 PEOOF. 
 
 (a) That the accused knew that a mutiny or sedition was 
 impending or that he knew of circumstances that would 
 have induced, in a reasonable man, a belief that a mutiny or 
 sedition was impending. 
 
 (b) Acts or omissions of the accused which constitute a 
 failure or unreasonable delay in informing his commanding 
 officer of his knowledge or belief. 
 
 NOTE. Similar acts or omissions by a member of the Army Nurse 
 Corps, a warrant officer, an Army field clerk, a field clerk Quarter- 
 master Corps, or any other person subject to military law, except a 
 commissioned officer or an enlisted man, are chargeable under 
 A. W. 96. 
 
 419. Sixty-eighth Article of War: 
 
 All officers., members of the Army Nurse Corps, warrant officers, Array 
 field clerks, field clerks Quartermaster Corps, and noncommissioned offi- 
 cers have power to part and quell all quarrels, frays, and dis- 
 orders among? persons subject to military law and to order offi- 
 cers who take part in the same into arrest, and other persons 
 abject to military law who take part in the same into arrest or 
 confinement, as circumstances may require, until their proper 
 superior officer is acquainted therewith. And whosoever, being 
 so ordered, refuses to obey such officer, nurse, band leader, warrant 
 officer, field clerk, or noncommissioned officer, or draws a weapon 
 upon or otherwise threatens or does violence to him, shall he 
 punished as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 A fray is a fight in a public place to the terror of the 
 people, in which acts of violence occur or dangerous weapons 
 are exhibited or threatened to be used. All persons aiding 
 or abetting a fray are principals. The word " frays " is thus 
 seen to be somewhat restrictive, but the words " quarrels " 
 and " disorders " include any disturbance of a contentious 
 character from a mere war of words to a rout or riot. 
 
 To quell is to quiet, allay, abate, or put down. 
 
 It is immaterial under the article whether the officer, mem- 
 ber of the Army Nurse Corps, warrant officer, Army field clerk, 
 field clerk Quartermaster Corps, noncommissioned officer or 
 other person authorized by the article so to do who essays to 
 part or quell quarrels, frays, and disorders is on a duty status 
 or not, as it is immaterial whether the persons engaged in 
 the disorder are superior to him in rank or not. 
 
 363 
 
*y 419 CHAPTER XVII. 
 
 ANALYSIS AND PROOF. 
 
 The punitive portion of the article applies to all persons 
 subject to military law. It is designed to enforce the au- 
 thority of officers and noncommisisoned officers, and the other 
 persons so authorized in the article, to part arid quell certain 
 disorders and to order the participants into confinement or 
 arrest. 
 
 The article defines four crimes : 
 
 I. Refusal to obey an order of an officer, member of the 
 Army Nurse Corps, warrant officer, Army field clerk, field clerk 
 Quartermaster Corps, band leader, or noncommissioned officer 
 placing the accused in arrest or confinement. 
 
 II. Upon being ordered into arrest or confinement, draw- 
 ing a weapon on the officer, member of the Army Nurse Corps, 
 warrant officer, Army field clerk, field clerk Quartermaster 
 Corps, band leader, or noncommissioned officer giving the 
 order. 
 
 III. Upon being ordered into arrest or confinement, threat- 
 ening the officer, member of the Army Nurse Corps, warrant 
 officer, Army field clerk, field clerk Quartermaster Corps, band 
 leader, or noncommissioned officer giving the order. 
 
 IV. Upon being ordered into arrest or confinement, doing 
 violence to the officer, member of the Army Nurse Corps, war- 
 rant officer, Army field clerk, field clerk Quartermaster Corps, 
 band leader, or noncommissioned officer giving the order. 
 
 I. DISOBEDIENCE OF ORDERS INTO ARREST OR CONFINEMENT. 
 
 It should appear that the power conferred by the article 
 was being exercised for the purpose stated, and therefore the 
 charges and proof should refer to the order given during the 
 disorder. It should be made to appear that the accused heard 
 or understood the order and knew that the person giving it 
 was an officer or noncommissioned officer, or other person 
 thereunto authorized by the article. 
 
 PROOF. 
 
 (a) That the accused was a participant in a certain quarrel, 
 fra} T , or disorder occurring among persons subject to mili- 
 tary law. 
 
 364 
 
PUNITIVE ARTICLES OF WAR. *J 420 
 
 (l>) That, during, the disorder a certain officer, member of 
 the Army Nurse Corps, warrant officer, Army fie]4 clerk, field 
 clerk Quartermaster Corps, band leader, or noncommissioned 
 officer ordered the accused into arrest (if accused is an offi- 
 cer) or into arrest or confinement (if accused is a person 
 subject to military law other than an officer), with a view 
 to quell or part the disorder. 
 
 (c) That the accused refused to obey. 
 
 II, III, IV. THREATENING, DRAWING A WEAPON UPON, OR OFFER- 
 ING VIOLENCE TO, AN OFFICER, member of the Army Nurse 
 Corps, warrant officer, Army field clerk, field clerk Quarter- 
 master Corps, band leader, OR NONCOMMISSIONED OFFICER. 
 
 The proof of the second, third, and fourth crimes -defined 
 b v the article should follow in form and essentials the proof 
 required under the first crime (disobedience of order inta 
 arrest or confinement, supra), except that instead of proving 
 a refusal to obey (clause "(c)", supra), drawing a weapon, 
 making a threat, or doing violence must be proved as the 
 consummation of the particular offense. The word threat as 
 here used includes any menacing action, either by gesture or 
 by words. 
 
 SECTION IT. 
 
 ARREST CONFINEMENT. 
 
 420. Sixty -ninth Article of War: 
 
 Any person ul>ject to military law chargred with crime OP 
 with a serious offense under these articles shall be placed in 
 confinement or in arrest as circumstances may require; but 
 when charged wttli a minor effene only such person shall not ordi- 
 narily be placed in confinement. Any person placed in arrest under 
 the provisions o this article shall thereby he restricted to his 
 Imrraefcs, quarters, or- ten4, unless such limits shall fo enlarged 
 by proyer authority. Aiy officer or cadet who brealts his arrest 
 or who escapes from confinement, whether before or after trial or 
 sentence and ?efore he I set at liber-ty Uy proper authority, shall 
 be dismissed from the service or suffer such other punishment 
 ;;s a court-martial may direct; and any other person subject to 
 military Law who escapes from conituement or who bi-eaJks his 
 arrest, whether before or after trial, or sentence and before he i set at 
 liberty by proper authority, shall be punished as a court- 
 martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The distinction between arrest and confinement lies in the 
 difference between the kinds of restraint imposed. In arrest 
 
 3C5 
 
If 420 CHAPTER XVII. 
 
 the restraint is moral restraint imposed by the orders fixing 
 the limits of'arrest, or by the terms of the article. Confine- 
 ment imports some physical restraint. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to all persons subject to military law. 
 The article defines two crimes : 
 
 I. Breach of arrest. 
 
 II. Escape from confinement. 
 
 I. BREACH OF ARREST. 
 
 The offense is committed when the person restrained in- 
 fringes the limits set by orders, or. by the sixty-ninth article 
 of war, and the intention or motive that actuated him is im- 
 material to the issue of guilt, though, of course, proof of in- 
 advertence or bona fide mistake is admissible to guide the 
 court in assessing punishment. The unlawfulness of the 
 arrest is a valid defense, but innocence of the accusation upon 
 which the arrest is imposed is entirely irrelevant. 
 
 PEOOF. 
 
 (a) That the accused was duly placed in arrest. 
 
 (5) That before he was set at liberty by proper authority, 
 whether before or after trial or sentence, he transgressed the 
 limits fixed by the sixty-ninth article of war or by the orders 
 of proper authority. 
 
 II. ESCAPE FROM CONFINEMENT. 
 
 An escape may be either with or without force or artifice, 
 and either with or without the consent of the custodian. Any 
 completed casting off of the restraint of confinement, before 
 being set at liberty by proper authority, is an escape from 
 confinement, and a lack of effectiveness of the physical re- 
 straint imposed is immaterial to the issue of guilt. It seems, 
 however, that an escape is not complete until the prisoner has, 
 momentarily at least, freed himself from the restraint of his 
 confinement, so, if the movement toward escape is opposed, 
 or before it is completed an immediate pursuit ensues, there 
 will be no escape until opposition is overcome, or pursuit is 
 
 3G6 
 
PUNITIVE ARTICLES OF WAR. ^[ 42 Oj 
 
 shaken off. In cases where the escape is not completed the 
 offense should be charged as an attempt under the ninety- 
 sixth article of war. 
 
 PBOOF. 
 
 (a) That the accused was placed in confinement. 
 
 (b) That he freed himself from the restraint of his confine- 
 ment before he had been set at liberty by proper authority, 
 whether before or after trial or sentence. 
 
 420. Seventieth Article of War: 
 
 Charges and specification* must be signed by a person subject to 
 military law, and under oath either that he has personal knowledge 
 of, or has investigated, the matters set forth therein, and that the 
 same are true in fact, to the best of his knowledge and belief. 
 
 No charge will be referred for trial until after a thorough and 
 impartial investigation thereof shall have been mad*. This investi- 
 gation will include inquiries as to the truth of the matter set forth 
 in said charges, form of charges, and what disposition of the case 
 should be made in the interest of justice and discipline. At such 
 investigation full opportunity shall be given to the accused to cross- 
 examine witnesses against him if they are available and to present 
 anything he may desire in his own behalf, either in defense or miti- 
 gation, and the investigating officer shall examine available wit- 
 nesses requested by the accused. If the charges are forwarded after 
 such investigation, they shall be accompanied by a statement of the 
 substance of the testimony taken on both sides. 
 
 Before directing the trial of any charge by general court-martial 
 the appointing authority will refer it to his staff judge advocate for 
 consideration and advice. 
 
 When any person subject to military law is placed in arrest or con- 
 finement immediate steps Trill be taken to try the person accused or 
 to dismiss the charge and release him. Any officer who is responsi- 
 ble for unnecessary delay in investigating or carrying the case to a 
 final conclusion shall be punished as a court-martial may direct. 
 When a person is held for trial by general court-martial the com- 
 manding officer will, within eight days after the accused is arrested 
 or confined, if practicable, forward the charges to the officer exercis- 
 ing general court-martial jurisdiction and furnish the accused a 
 copy of such charges. If the same be not practicable, he will report 
 to superior authority the reasons for delay. The trial judge advo- 
 cate -will cause to be served upon the accused a copy of the charges 
 upon which trial is to be had, and a failure so to serve such charges 
 will be ground for a continuance unless the trial be had on the 
 charges furnished the accused as hereinbefore provided. In time of 
 pence no person shall, against his objection, be brought to trial be- 
 fore a general court-martial within a period of five days subsequent 
 to the service of charges upon him. 
 
 Definitions and Principles. 
 
 As to distinction between " arrest " and " confinement " see 
 the preceding article. 
 
 21358 20 24 
 
 367 
 
^f 42 Oi CHAPTEE XVII. 
 
 The punitive clause of this article, above quoted, has no ap- 
 plication, except in cases where the accused is placed either 
 in arrest or confinement. But in cases where the accused is not 
 arrested or confined,- an officer responsible for unnecessary and 
 unusual delay, either in investigating the charges or in carrying 
 the case to a final conclusion, may be charged with neglect to 
 the prejudice of good order and military discipline under the 
 ninety-sixth article of war. 
 
 The purpose of the provision above quoted, which was in- 
 troduced into the seventieth article of war by the code of 1920. 
 is to insure expedition in disposing of charges, and the punish- 
 ment of officers responsible for unnecessary delay in connection 
 therewith. 
 
 Analysis and Proof. 
 
 The article applies only to officers. 
 The article defines two offenses: 
 
 I. Unnecessary delay in investigating charges against an 
 accused in arrest or confinement. 
 
 II. Unnecessary delay in carrying a case to a final conclusion 
 where an accused is placed in arrest or confinement. 
 
 I. Unnecessary Delay in Investigating Charges Against an Accused 
 in Arrest or Confinement. 
 
 PROOF. 
 
 (a) That the accused is an officer. 
 
 (b) That, as alleged in the specification, the accused was, as 
 such officer, charged with the duty of makiag or directing, or 
 assisting in, or some other duty in connection with, the investi- 
 gation of charges against an accused who was at the time in 
 arrest or in confinement, as the case may be. 
 
 (c) That in such investigation there was unnecessary delay, 
 as alleged in the specification. 
 
 (d) Facts and circumstances indicating that the accused was 
 responsible for such unnecessary delay, as alleged in the specifi- 
 cation. 
 
 80S 
 
PUNITIVE ARTICLES OF WAR, ^ 421 
 
 II. Unnecessary Belay in Carrying a Case to a Final Conclusion 
 Where an Accused Is Placed in Arrest or Confinement. 
 
 PROOF. 
 
 (a) That the accused is an officer. 
 
 (b) That the accused, as such officer, was charged with a 
 certain duty, as alleged in the specification, in connection with 
 the case of an accused person who was placed either in arrest 
 or in confinement. 
 
 (c) That a certain unnecessary delay, as alleged in the specifi- 
 cation, occurred in carrying the case of such accused to a final 
 conclusion. 
 
 (d) Facts and circumstances indicating that the accused was 
 responsible for such unnecessary delay. 
 
 421. Seventy --first Article of War: 
 
 No provost marshal or commander of a gruard shall refuse to re- 
 ceive or keep any prisoner committed to his ehnrgc by an officer be- 
 longing to the forces of the United States, provided the officer com- 
 mittiiu; shall, at the time, deliver an account in writing, signed by 
 himself, of the crime or offense charged ugrainst the prisoner. Any 
 officer or soldier so refusing shall be punished as a court-martial may 
 direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The words " commander of a guard " include a commander 
 of any rank or grade, and hence a noncommissioned officer or 
 private. The term " any prisoner " includes civil as well as 
 military prisoners who are committed according to the terms 
 of the article. A provost marshal or commander of a guard 
 may receive a prisoner without an account of the charge 
 against him or other due formality of commitment, but he 
 must receive the prisoner where the required account in writ- 
 ing accompanies the commitment. 
 
 A mere name or description of the offense charged in com- 
 mon parlance when written and signed by the committing 
 officer is a sufficient " account in writing." 
 
^f 422 CHAPTER xvn. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to officers and soldiers. 
 The article defines one crime : 
 
 I. REFUSING TO RECEIVE OR KEEP A PRISONER COMMITTED WITH A 
 WRITTEN ACCOUNT OF THE OFFENSE CHARGED AGAINST HIM 
 SIGNED BY THE OFFICER COMMITTING THE PRISONER. 
 
 PEOOF. 
 
 (a) That the accused was a provost marshal or com- 
 mander of a guard in the military forces of the United States. 
 
 (6) That a certain prisoner was committed to his charge 
 by a certain officer belonging to the forces of the United 
 States. 
 
 (c) That at the time of commitment the committing officer 
 delivered to the accused a written account of the crime or 
 offense charged against the prisoner, which account was 
 signed by the committing officer. 
 
 (d) That the accused refused to receive or keep the pris- 
 oner. 
 
 422. Seventy-second Article of War: 
 
 Kvery commander of a guard to whose charge a prisoner is com- 
 mitted shall, within twenty-four hours after such confinement, or 
 as soon as he is relieved from his guard, report in writing- to the 
 commanding officer the name of such prisoner, the offense charged 
 against him, and the name of the officer committing him; and if he 
 fails to make sucli report, he shall be punished as a court-martial 
 may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The term " commander of a guard " includes commanders 
 of any rank or grade. 
 
 The term " prisoner " includes civilian as well as military 
 prisoners. 
 
 The term " commanding officer " imports the commander 
 to whom the guard report is properly made. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to all persons subject to military law. 
 It defines one offense: 
 
 370 
 
PUNITIVE ARTICLES OF WAR. ^f 423 
 
 I. FAILURE TO RENDER A REPORT AS PRESCRIBED. 
 PEOOF. 
 
 (a) That the accused was commander of a certain guard 
 in the military forces of the United States. 
 
 (I) That a prisoner was committed to his charge. 
 (c) That the accused 
 
 1. Failed to make any report at all, or, 
 
 2. That the report rendered was not in writing, or, 
 
 3. That no report was rendered within 24 hours after con- 
 finement, or as soon as accused was relieved from his guard, 
 or. 
 
 4. That the report failed to set forth one or more of the 
 particulars prescribed. 
 
 423. Seventy -third Article of War: 
 
 Any person subject to military law who, without proper authority, 
 releases any prisoner duly committed to his charge, or who through 
 neglect or design suffers any prisoner so committed to escape, shall 
 be punished as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The article describes three long-recognized common-law 
 crimes. 
 
 It looks to the punishment of any person who is respon- 
 sible for the unauthorized release or escape of a prisoner 
 duly committed to his charge, and hence any member of 
 a guard, party, escort, and convoy, or any person subject 
 to military law to whose charge a prisoner is committed 
 may be guilty of an offense under this article. Where a 
 prisoner is committed to the commander of a guard, party, 
 escort, or convoy, and is released by, or escapes from, a 
 subordinate or subordinates to whom the commander has 
 duly delegated custody of the prisoner, or to whom that 
 custody duly falls as an incident of duty, ;ill will be re- 
 sponsible under this article, except those who can show that 
 the escape or release occurred under circumstances against 
 which they could not reasonably guard. 
 
 371 
 
^f 423 CHAPTER XVII. 
 
 The words "any prisoner" import both military and 
 civilian prisoners. 
 
 A person may receive a prisoner in his capacity as com- 
 mander or member of a guard, or he may be burdened with 
 such a responsibility as a personal trust. In the former 
 case, the lowest authority competent to release the prisoner 
 is the chief of the command of the guard by which the pris- 
 oner is held. In the latter case, the authority who has im- 
 posed the trust, and who was competent to do so, is the 
 lowest " proper authority " to order a release. 
 
 While a commander of the guard must receive a prisoner 
 properly committed by any officer, the power of the commit- 
 ting officer ceases as soon as he has committed the prisoner, 
 and he is not a " proper authority " to order a release. 
 
 An officer is not responsible under this article unless the 
 prisoner was duly committed, but, as was pointed out in 
 the discussion of the seventy-first article, an officer may 
 receive a prisoner not committed in strict compliance with 
 the terms of that article or other law, and if, having so 
 received a prisoner, he releases such prisoner, or suffers him 
 to escape, he may be held to answer, under the ninety-sixth 
 article, for any dereliction of duty that may be predicated 
 on his conduct in the case. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 The article defines three crimes: 
 
 I. Releasing a prisoner without proper authority. 
 
 II. Suffering a prisoner to escape through neglect. 
 
 III. Suffering a prisoner to escape through design. 
 
 I. RELEASING A PRISONER WITHOUT PROPER AUTHORITY. 
 
 A release imports a removal of restraint from the prisoner 
 in which the custodian is the sole actor, and in which the pris- 
 oner takes no initiative. 
 
 PROOF. 
 
 (a) That a certain prisoner was duly committed to the 
 charge of the accused. 
 
 (fr) That the accused released him without proper au- 
 thority. 
 
 372 
 
PUNITIVE ARTICLES OF WAR. *[f 423 
 
 II. SUFFERING A PRISONER TO ESCAPE THROUGH NEGLECT. 
 
 The word " neglect " is here used in the sense of the word 
 " negligence," 
 
 Negligence is a relative term. It is denned in law as the 
 absence of due care. The legal standard of care is that which 
 would have been taken by a reasonably prudent man in the 
 same or similar circumstances. This test looks to the stand- 
 ard required of persons acting in the capacity in which the 
 accused was acting. Thus, if the accused is an officer, the test 
 will be, "How would a reasonably prudent officer have 
 acted?" If the circumstances were such as would have indi- 
 cated to a reasonably prudent officer that a very high order 
 of care was required to prevent escape, then the accused must 
 be held to a very high order of care. The test is thus elastic, 
 logical, and just. 
 
 A prisoner can not be said to have escaped until he has 
 overcome the opposition that restrained him and shaken off 
 immediate pursuit. Once he has done these things, the fact 
 that he returns, is taken in a fresh pursuit, is killed, or dies, 
 will not relieve the person accused of guilt under this article. 
 
 PROOF. 
 
 (a) That a, certain prisoner was duly committed to the 
 charge of the accused. 
 
 (ft) That the prisoner escaped. 
 
 (c) That the accused did not take such care to prevent 
 escape as a reasonably prudent person, acting in the capacity 
 in which the accused was acting, would have taken in the 
 same or similar circumstances. (This constitutes neglect.) 
 
 (d] That the escape was the proximate result of the neg- 
 lect of the accused. 
 
 Til. SUFFERING A PRISONER TO ESCAPE THROUGH DESIGN. 
 
 In law a wrongful act is designed when it is intended or 
 when it results from conduct so shockingly and grossly de- 
 void of care as to leave room for no inference but that the 
 act was contemplated as an extremely probable result of the 
 course of conduct followed. Thus, on a charge of suffering 
 a prisoner to escape through design, evidence of gross negli- 
 gence may be received as probative of design. 
 
 373 
 
^ 424 CHAPTER XVII. 
 
 It sometimes happens that a prisoner has been permitted 
 larger limits than should have been allowed, and an escape 
 is consummated without hindrance. It does not at all follow 
 that such an escape is to be considered as designed. The con- 
 duct of the responsible custodian is to be examined in the 
 light of all the circumstances of the case, the heinousness of 
 the crime with which the prisoner is charged, the notoriety 
 of the prisoner's guilt, the probability of his return, and the 
 intention and motives of the custodian. 
 
 PROOF. 
 
 (a) That a certain prisoner was duly committed to the 
 charge of the accused. 
 
 (5) That the prisoner escaped. 
 
 (c) 1. Acts of the accused tending to permit escape. 2. 
 Acts of the accused probative of a design to suffer the escape. 
 
 (d) That as a result of these acts and of this design the 
 prisoner escaped. 
 
 424. Seventy- fourth Article of War: 
 
 When any person subject to military law, except one -who is held 
 by the military authorities to answer, or who is awaiting trial or 
 result of trial, or who is undergoing sentence for a crime or offense 
 punishable under these articles, is accused of a crime or offense com- 
 mitted within the geographical limits of the States of the Union and 
 the District of Columbia, and punishable by the laws of the land, the 
 commanding officer is required, except in time of war, upon applica- 
 tion duly made, to use his utmost endeavor to deliver over such 
 accused person to the civil authorities, or to aid the officers of 
 justice in apprehending and securing him, in order that he may be 
 brought to trial. Any commanding officer who upon such applica- 
 tion refuses or willfully neglects, except in time of war, to deliver 
 over such accused person to the civil authorities or to aid the oflicers 
 of justice in apprehending and securing him shall be dismissed from 
 the service or suffer such other punishment as a court-martial ma) 
 direct. 
 
 "When, under the provisions of this article, delivery is made to the 
 civil authorities of an offender undergoing sentence of . court- 
 martial, such delivery, if followed by conviction, shall be held to 
 interrupt the execution of the sentence of the court-martial, and the 
 offender shall be returned to military custody, after having an- 
 swered to the civil authorities for his offense, for the completion 
 of the said court-martial sentence. 
 
 DEFINITIONS AND PRINCIPLES. 
 I. REFUSING TO DELIVER ACCUSED PERSONS. 
 
 The words "commanding officer," as here used, import 
 the officer who is chief of the complete integral place, body 
 
 374 
 
PUNITIVE ARTICLES OF WAR. If 424 
 
 of troops, or detachment, wherein the person accused is 
 serving at the time application is duly made. The words 
 " upon application duly made " prescribe a condition prece- 
 dent to responsibility. They are inserted to prevent the 
 possibility of false arrests, and to enable the commanding 
 officer to satisfy himself of the true official character of 
 him who makes the application, of the subsistence of an 
 actual accusation against the person sought, and of the locus 
 of the charged crime or offense. 
 
 The commanding officer should require that the applica- 
 tion show that the crime or offense is alleged to have been 
 committed within the geographical limits of the States of 
 the Union and the District of Columbia. A sufficient form 
 of application will be a written communication setting forth 
 the fact of such an accusation of a crime or offense com- 
 mitted within the prescribed limits as would subject the 
 accused person to arrest by the civil authorities for the pur- 
 poses of trial, or that a warrant for such arrest has issued, 
 and a request that the commanding officer deliver the per- 
 son accused to the civil authorities or assist them in ap- 
 prehending or securing him. When the military jurisdic- 
 tion has actively attached in any of the ways prescribed 
 in the article, the commanding officer may, but he is not 
 required to, make the prescribed delivery. 
 
 II. REFUSING TO AID IN APPREHENDING ACCUSED PERSONS. 
 
 The commanding officer is required not only to deliver the 
 person accused but to aid in apprehending and securing 
 him. The article therefore contemplates cases where, after 
 apprehension by either the military or civil authorities, an 
 application is duly made to a commanding officer for his 
 assistance in securing a person subject to military law and 
 accused of crime. 
 
 " Utmost endeavor " is to be understood in a reasonable 
 sense with reference to the circumstances of the particular 
 case. Thus, if the accused is not within military control, 
 as where he is absent as a deserter, nothing more can be 
 required of a commander than to furnish civil authority 
 
 375 
 
^f 424 CHAPTER xvn. 
 
 such information of his whereabouts and the prospect of 
 his return as may be available. 
 
 While commanding officers are enjoined to use their ut- 
 most endeavor in carrying out the provisions of this law, 
 a mere inadvertent neglect to take some necessary step toward 
 delivery, apprehension, or securing of the person accused 
 will not constitute an offense under this article, which con- 
 templates only refusals and willful neglects to act. 
 
 ANALYSIS AND PROOF. 
 
 The punitive portion of the article applies only to officers, 
 but the obligation to deliver or assist in apprehending and 
 securing rests on all persons subject to military law. 
 
 The article defines two offenses : 
 
 I. Refusing or willfully neglecting to deliver an accused 
 person. 
 
 II. Refusing or willfully neglecting to aid in apprehend- 
 ing and securing an accused person. 
 
 The essentials of proof are similar in both cases. 
 
 PEOOF, 
 
 (a) That the accused was the commanding officer of a 
 certain integral place, body of troops, or detachment. 
 
 (b) That a certain person subject to military law under his 
 command stood accused of a certain crime or offense, commit- 
 ted within the geographical limits of the States of the 
 Union and the District of Columbia. 
 
 (c) That application was duly made to the accused offi- 
 cer by a person in proper civil authority 
 
 1. To deliver the accused person to the civil authori- 
 
 ties ; or 
 
 2. To aid the officers of justice in apprehending and 
 
 securing, or either, the accused person. 
 
 (d) Acts or omissions of the accused officer which consti- 
 tute a refusal or a willful neglect to deliver the accused per- 
 son or to aid in apprehending or securing him. 
 
 870 
 
PUNITIVE ARTICLES OF WAR. ^ 425 
 
 SECTION V. 
 WAR OFFENSES. 
 
 425. Seventy --fifth Article of War: 
 
 Any officer or soldier who, before the enemy, misbehaves himself, 
 runs away, or shamefully abandons or delivers up or by any mis- 
 conduct, disobedience, er neglect endangers the safety of any fort, post, 
 camp, guard, or other command which it is his duty to defend, 
 or speaks words inducing others to do the like, or casts away 
 his arms or ammunition, or quits his post or colors to plunder 
 or pillage, or by any means whatsoever occasions false alarms 
 in camp, garrison, or quarters, shall suffer death or such other 
 punishment as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 Misbehavior is by no means confined to acts of cowardice. 
 It is a general term, and as here used it renders culpable 
 under the article any conduct by an officer or soldier not con- 
 formable to the standard of behavior before the enemy set 
 by the history of our arms. Running away is but a particu- 
 lar form of misbehavior specifically made punishable by this 
 article. 
 
 " The enemy " imports any hostile body that our forces 
 may be opposing and well includes a rebellious mob, a band 
 of renegades, or a tribe of Indians. 
 
 ANALYSIS AND PROOF. 
 
 The article applies only to officers and soldiers. It defines 
 eight offenses : 
 
 I. Misbehavior before the enemy. 
 
 II. Running away before the enemy. 
 
 III. Shamefully abandoning or delivering up any com- 
 mand. 
 
 IV. Endangering the safety of any command by any (1) 
 misconduct, (2) disobedience, or (3) neglect. 
 
 V. Speaking words inducing others to so misbehave, run 
 away, or abandon or deliver up or endanger the safety of 
 any command. 
 
 VI. Casting away arms or ammunition. 
 
 VII. Quitting post or colors to plunder or pillage. 
 
 VIII. Occasioning false alarms. 
 
 377 
 
^ 425 CHAPTER XVII. 
 
 I. MISBEHAVIOR BEFORE THE ENEMY. 
 
 Under this clause may be charged any act of treason, cow- 
 ardice, insubordination, or other unsoldierly conduct com- 
 mitted in the presence of the enemy. 
 
 PROOF. 
 
 (a) That the accused was serving in the presence of an 
 enemy. 
 
 (b) Acts or omissions of the accused not conformable to 
 the standard of soldierly conduct set by the history of our 
 arms. 
 
 II. RUNNING AWAT BEFORE THE ENEMY. 
 
 (a) That the accused was serving in the presence of an 
 enemy. 
 
 (5) That he misbehaved himself by running away. 
 
 III. SHAMEFULLY ABANDONING OR DELIVERING UP ANY 
 COMMAND. 
 
 While the word " abandon " is broad enough to include a 
 case in which a soldier or a subordinate officer leaves a fort, 
 post, guard, or command which it is his duty to defend, it 
 is probable that this clause of the article looks only to offenses 
 by the commanding officers of such commands, and that 
 abandonment by a subordinate should be charged as misbe- 
 havior or running away. 
 
 The words " deliver up " are synonymous with the word 
 " surrender." 
 
 The surrender or abandonment of a command by an officer 
 charged with its defense can only be justified by the utmost 
 necessity and extremity, such as the exhaustion of provisions 
 or water, the absence of hope of relief, and the certainty or 
 extreme probability that no further effort could prevent the 
 place, with its garrison, their arms, and magazines, from 
 presently falling into the hands of the enemy. Unless such 
 absolute necessity is shown, the conclusion must be that the 
 surrender or abandonment was shameful within the mean- 
 ing of this article. 
 
 An officer's duty to defend may be imposed by orders or by 
 the circumstances in which he finds himself at a particular 
 
 878 
 
PUNITIVE ARTICLES OF WAR. ^f 425 
 
 stage of operations; but an officer will find less justification 
 in abandoning a post that he has been ordered to defend than 
 in abandoning one that he has decided to defend. He will 
 have less justification in delivering up a post than in abandon- 
 ing it, and in delivering up a post that he has been ordered 
 to defend he will have no justification at all except such as 
 can be found in proof that no further resistance was possible. 
 
 PEOOF. 
 
 (a) That the accused was charged by orders or by circum- 
 stances with a duty to defend a certain fort, post, camp, 
 guard, or other command. 
 
 (b) That without justification he abandoned it or surren- 
 dered it. 
 
 IV. Endangering the Safety of Any Command by Any (1) Misconduct, 
 
 (2) Disobedience, or (3) Neglect. 
 
 " Misconduct," like misbehavior, implies a wrongful inten- 
 tion, and not a mere error of judgment. It means in general " a 
 transgression of some established and definite rule of action, 
 where no discretion is left, except what necessity may de- 
 mand " ; whereas on the other hand carelessness and negligence 
 and unskillfullness are transgressions of some established, but 
 indefinite rule of action where some discretion is necessarily left to 
 the actor. " Misconduct " is a violation of definite law ; " care- 
 lessness a forbidden quality of an act and is necessarily in- 
 definite." (Vol. 5, " Words and Phrases," p. 4531.) 
 
 As to " disobedience," see Subparagraph II, paragraph 415, 
 supra, under A. W. 64. 
 
 PROOF. 
 
 Facts and circumstances showing that the accused endangered 
 the safety of a certain command, as alleged, by certain (1) mis- 
 conduct, (2) disobedience, or (3) neglect, as alleged (as the 
 case may be). 
 
 V. SPEAKING WORDS INDUCING OTHERS TO MISBEHAVE, RUN 
 
 AWAY, OR ABANDON OR DELIVER UP or endanger the safety of 
 
 ANY COMMAND. 
 
 The words "to do the like" refer to the offenses of mis- 
 behavior and running away, as well as to abandoning or 
 delivering up or endangering the safety of a command. 
 
 379 
 
^f 425 CHAPTER XVII. 
 
 The inducement contemplated is verbal only, but it may 
 include any argument, persuasion, threat, language of dis- 
 couragement or alarm, or false or incorrect statement which 
 may avail to bring about an unnecessary surrender, retreat, 
 or any misbehavior, or endanger the safety of the command, 
 before the enemy. The offense will not be complete, hovv T - 
 ever, unless the words spoken do induce some person other 
 than tfie accused to misbehave, run away, or abandon or 
 surrender, or by some misconduct, disobedience, or neglect 
 endanger the safety of, a command. It is to be noted, how- 
 ever, that speaking words whose natural tendency is to in- 
 duce others to do any of these things may in itself constitute 
 misbehavior of the speaker within the meaning of the article, 
 although the words spoken induce no misconduct on the part 
 of others. 
 
 PROOF. 
 
 (a) That some person other than the accused misbehaved 
 in the presence of the enemy or ran away or abandoned or 
 delivered up, or by some misconduct, disobedience, or neglect 
 endangered the safety of, any command which it was his duty 
 to defend. 
 
 (b) Words spoken by the accused which induced such 
 action. 
 
 VI. CASTING AWAY ARMS OR AMMUNITION. 
 PBOOF. 
 
 (a) That the accused cast away certain arms or ammuni- 
 tion as specified. 
 
 VII. QUITTING POST OR COLORS TO PLUNDER Olt PILLAGE. 
 
 The word " post " includes any place of duty, whether per- 
 manently or temporarily fixed. The term " colors " was used 
 to include cases where the offender's organization is moving, 
 but the words " quits his post," as here used, import any un- 
 authorized leaving of that place where the accused should be. 
 
 In proving this crime an intent to pillage or plunder must 
 be shown. The words " to pillage or plunder " may be prop- 
 erly paraphrased " to seize and appropriate public or pri- 
 vate property." The offense is no less committed, though 
 
 3SO 
 
PUNITIVE ARTICLES OF WAR. ^f 425 
 
 the quitting is by quasi authority, as where soldiers quit the 
 place where they should be to go forth and maraud in com- 
 pany with an officer or noncommissioned officer. 
 
 The act is complete when the accused has left his post with 
 the described intent, although he may never have consum- 
 mated his design. 
 
 (a) That the accused left his post of duty. 
 (6) That the intention of the accused in leaving was to 
 seize and appropriate private or public property. 
 
 VIH. OCCASIONING FALSE ALARMS. 
 
 The article is intended as well to guard the repose and 
 tranquillity of troops as to avoid the ill effect or morale 
 which must" inevitably follow needless excursions and alarms. 
 The article contemplates the spreading of false and disturb- 
 ing rumors and reports as well as the needless giving of such 
 alarm signals as the beating of drums and the blowing of 
 trumpets. 
 
 The intent is immaterial. If the alarm was given, and it 
 appears that there was no material cause or occasion which 
 should reasonably justify a general alarm, the offense is com- 
 plete. 
 
 PROOF. 
 
 (a) That an alarm was occasioned in a certain camp, gar- 
 rison, or quarters. 
 
 (&) Conduct of the accused which occasioned the alarm. 
 
 (c) That there was no reasonable or sufficient justification 
 in fact for occasioning the alarm. 
 
 NOTE. " Officer or Soldier." No one except a commissioned officer 
 or an enlisted man can be tried under the seventy-fifth article of 
 war. Any other person subject to military law, such as a member of 
 the Army Nurse Corps, a warrant officer, an Army field clerk, or a 
 field clerk Quartermaster Corps, can not be charged under this 
 article, but for the offenses denounced in this article may be tried 
 under the ninety-sixth article of war, under which, however, the 
 death penalty can not be inflicted. 
 
 381 
 
f 426 CHAPTER XVII. 
 
 426. Seventy-sixth Article of War: 
 
 Any person subject to military lavr who compels or attempts to 
 compel any commander of any garrison, fort, post, camp, guard, 
 or other command, to give it up to the enemy or to abandon it 
 shall be punishable with death or such other punishment as a 
 court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 When the surrender or abandonment of a command is 
 induced or attempted to be brought about by words spoken, 
 the offense should be charged under the seventy-fifth article. 
 Where the surrender or abandonment is compelled or at- 
 tempted to be compelled by acts rather than words, the charge 
 should be laid under the present article. 
 
 The offenses here contemplated are very like that of a 
 mutiny which results in the surrender or abandonment of 
 any command, or like an attempt to mutiny, but, unlike 
 mutiny, no concert of action is an essential element of these 
 offenses. The offense of compelling the giving up or abandon- 
 ment of the garrison, etc., is not complete until the command 
 is abandoned or given up to the enemy. The offense of at- 
 tempting to compel any commander of any garrison, etc., to 
 give it up to the enemy or to abandon it does not require an 
 actual abandonment or giving up of the garrison, etc., to the 
 enemy; but there must be some act done with this purpose in 
 view, but which falls short of an actual accomplishment of the 
 purpose. See paragraph 425 for meaning of abandon; to 
 " give up " is to be interpreted as meaning the same as " de- 
 livers up " in paragraph 425. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 The article defines two crimes. 
 
 I. COMPELLING COMMANDER TO SURRENDER. 
 
 (a) That a certain commander has abandoned his com- 
 mand or given it up to the enemy. 
 
 (5) Acts or omissions of the accused that compelled the 
 commander to abandon his command or give it up to the 
 enemy. 
 
 882 
 
PUNITIVE ARTICLES OF WAR. ^f 427 
 
 II. Attempting- to Compel Commander to Surrender. 
 
 TROOP. 
 
 (a) That a certain commander was in command of a garrison, 
 fort, post, camp, guard, or other command. 
 
 (b) Acts or omissions of the accused done or omitted with the 
 intent or purpose of compelling such commander to abandon it 
 or give it up to the enemy. 
 
 427. Seventy -seventh Article of War: 
 
 Any person subject to military law who makes known the 
 parole or countersign to any person not entitled to receive it 
 according to the rnles and discipline of war, or gives a parole 
 or countersign different from that which he received, shn.ll, if 
 the offense be committed in time of war, suffer death or such 
 other punishment as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 A countersign is a word given from the principal head- 
 quarters of a command to aid guards and sentinels in their 
 scrutiny of persons who apply to pass the lines. 
 
 A parole is a word used as a check on the countersign. It 
 is imparted only to those who are entitled to inspect guards 
 and to commanders of guards. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 It defines two offenses : 
 
 I. Making known the parole or countersign. 
 
 II. Giving a parole or countersign different from that re- 
 ceived. 
 
 I. MAKING KNOWN THE PAROLE OR COUNTERSIGN. 
 
 The class of persons entitled to receive the countersign will 
 expand and contract under the varying circumstances of war. 
 Who these-persons are will be determined largely, in any par- 
 ticular case, by the general or special orders under which the 
 accused was acting. It is no defense under the terms of this 
 law that the accused did not know that the person to whom 
 he communicated the countersign or parole was not entitled 
 to receive it. Before imparting such a word it behooves a 
 person subject to military law to determine at his peril that 
 
 21358 20 25 
 
 383 
 
CHAPTER XVII. 
 
 the person to whom he presumes to make known the word 
 is a person authorized to receive it. 
 
 The intent or motive that actuated the accused is imma- 
 terial to the issue of guilt, as would also be the circumstance 
 that the imparting was negligent or inadvertent. It is like- 
 wise immaterial whether the accused had himself received the 
 password in the regular course of duty or whether he obtained 
 it in some other way. 
 
 PROOF. 
 
 (a) That the accused made known the countersign or 
 parole to a certain person, known or unknown. 
 
 ( b ) That the person was not entitled to receive it. 
 
 II. GIVING A PAROLE OR COUNTERSIGN DIFFERENT FROM THAT 
 
 RECEIVED. 
 
 The intent or motive that actuated the accused is imma- 
 terial to the issue of guilt. 
 
 PROOF, 
 
 (a) That the accused received a certain countersign or 
 parole. 
 
 (b) That he gave a parole or countersign different from 
 that which he received. 
 
 428. Seventy -eighth Article of War: 
 
 Any person subject to military law who, In time of war, forces 
 a *afernarl ahull suffer death, or anch other puiiiMliment an a 
 conrt-mnrtinl may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 A safeguard is a detachment, guard, or detail posted by a 
 commander for the purpose of protecting some person or per- 
 sons, place, or property. The term also imports a written 
 order left by a commander with an enemy subject or posted 
 upon enemy property for the protection of the individual or 
 property concerned. 
 
 Any trespass on the protection of the safeguard will con- 
 stitute an offense under the article, provided that the accused 
 was aware of the existence of the safeguard. 
 
PUNITIVE ARTICLES OF WAR. ^f 429 
 
 ANALYSIS AND PROOF. 
 
 The article applies to all persons subject to military law. 
 It defines one offense: 
 
 I. FORCING A SAFEGUARD. 
 PROOF. 
 
 (a) That a safeguard had been issued or posted for the 
 protection of a certain person or persons, place, or property. 
 
 (7)) That, with knowledge of the safeguard, or under cir- 
 cumstances that charged him with notice of the safeguard, 
 the accused trespassed upon its protection. 
 
 429. Seventy-ninth Article of War: 
 
 All pnbllc property taken from the enemy la the property of 
 the United' States and shall be secured for the service of the 
 United Stntes, and any person subject to military law who neg- 
 lects to seenre such property or is guilty of wrongful appropria- 
 tion thereof shall be punished as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES, 
 
 Immediately upon its capture from the enemy public prop- 
 erty becomes the property of the United States. Neither the 
 individual who takes it nor any other person has any private 
 right in such property. On the contrary, every person subject 
 to military law has an immediate duty to take such steps as 
 are within his powers and functions to secure such property 
 to the service of the United States. and to protect it from 
 destruction or loss. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to all persons subject to military law. 
 (See A. W. 2.) 
 It defines two offenses: 
 
 I. Neglecting to secure captured public property. 
 
 II. Wrongful appropriation of captured public property. 
 
 I. NEGLECTING TO SECURE CAPTURED PUBLIC PROPERTY. 
 
 The neglect will consist in a failure to take such steps as a 
 reasonably prudent man acting in the capacity in which ac- 
 
 385 
 
If 430 CHAPTER XVII. 
 
 cused was acting would have taken in the same or similar 
 circumstances to secure the property in question to the 
 service of the United States. 
 
 PROOF. 
 
 (a) That certain public property was captured from the 
 enemy. 
 
 (b) That the functions of the accused vested him with a 
 certain power and imposed on him a certain duty to secure 
 such property to the service of the United States. 
 
 (c) Acts or omissions of the accused which evidence a 
 failure to take such steps to secure the property to the serv- 
 ice of the United States as would have been taken by a rea- 
 sonably prudent person acting in the capacity in which the 
 accused was acting and in the same or similar circumstances. 
 
 II. WRONGFUL APPROPRIATION OF CAPTURED PUBLIC PROPERTY. 
 
 Any unauthorized and unjustified act in disposition of 
 property which is inconsistent with the true owner's right 
 of complete dominion over it is a wrongful appropriation 
 of it. A wrongful appropriation is distinguished from a 
 neglect in that it presumes some act, while a neglect may 
 consist solely in an omission. 
 
 PROOF. 
 
 (a) That certain public property was captured from the 
 enemy. 
 
 ( ~b ) Acts of the accused in disposition of the captured public 
 property, inconsistent with the United States right of com- 
 plete dominion over that property. 
 
 430. Eightieth Article of War: 
 
 Any person subject to military law who buys, sells, trades, or 
 in any way deals in or disposes of captnred or abandoned prop- 
 erty, whereby he shall receive or expect any profit, benefit, or 
 advantage to himself or to any other person directly or indi- 
 rectly connected with himself, or who fails whenever such 
 property comes into his possession or custody or within his con- 
 trol to R-ive notice thereof to the proper authority and to turn 
 over such property to the proper authority without delay, shall, 
 on conviction thereof, be punished by fine or imprisonment, or 
 by such other punishment as a court-martial, military commis- 
 sion, or other military tribunal may adjudge, or by any or all 
 of said penalties. 
 
PUNITIVE ARTICLES OF WAR. ^f 430 
 
 DEFINITIONS AND PRINCIPLES. 
 
 This article is broader than the preceding one in the fol- 
 lowing particulars: It protects abandoned as well as cap- 
 tured property, and private as well as public captured or 
 abandoned property. 
 
 Unless the captured or abandoned property is private, or 
 unless the acts charged fall within the descriptions of this 
 article, the offense should be charged under article 79, supra. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to all persons subject to military law. 
 (See A. W. 2.) 
 
 It defines a number of offenses which may be treated as 
 follows : 
 
 I. Any dealing in or disposition of captured or abandoned 
 property whereby the accused receives or expects to receive 
 an advantage. 
 
 II. Failure or delay in reporting the receipt of and in turn- 
 ing over to proper authority captured or abandoned prop- 
 erty. 
 
 I. DEALING IN CAPTURED OR ABANDONED PROPERTY. 
 
 This portion of the article addresses itself to several spe- 
 cific acts of wrongful dealings and looks especially to cases 
 where, instead of appropriating the property to his own use 
 in kind, the accused in any other way deals with it to ad- 
 vantage. The article prohibits receipt as well as disposition 
 of captured or abandoned property by barter, gift, pledge, 
 lease, or loan. It lies against the destruction or abandon- 
 ment of such property if any of these acts are done in the re- 
 ceipt or expectation of profit, benefit, or advantage to the 
 actor or to any other person directly or indirectly connected 
 with himself. The expectation of profit need not be founded 
 on contract ; it is enough if the prohibited act be done for the 
 purpose, or in the hope, of benefit or advantage, pecuniary or 
 otherwise. 
 
 PROOF. 
 
 (a) That the accused has disposed of, dealt in, received, 
 etc., certain public or private captured or abandoned prop- 
 erty. 
 
 387 
 
If 431 CHAPTER XVIL 
 
 (b) That by so doing the accused received or expected 
 some profit or advantage to himself or to a certain person 
 connected in a certain manner with himself. 
 
 II. FAILURE OR DELAY IN REPORTING THE RECEIPT OF CAPTURED 
 OR ABANDONED PROPERTY, 
 
 Proper authority is any authority competent to order the 
 disposition of the property in question, and the required re- 
 port should be direct or through such channels as the cus- 
 toms and rules of the service prescribe. 
 
 PROOF. 
 
 (a) That certain captured or abandoned property came 
 into the possession, custody, or control of the accused. 
 
 (b) Acts or omissions of the accused which evidence his 
 failure in reporting the receipt of, and in turning over with- 
 out delay, such property to proper authority. 
 
 431. Eighty-first Article of War: 
 
 Whosoever relieves or attempts to relieve the enemy with nrniM, 
 ammunition, supplies, money, or other thing, or knowingly 
 harbors or protects or holds correspondence with or gives intel- 
 ligence to the enemy, either directly or indirectly, shall suffer 
 death or such other punishment us a. court-martial or military 
 commission may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 " Enemy " imports enemy citizens as well as soldiers and 
 does not restrict itself to the enemy government or its army. 
 All the citizens of one belligerent are enemies of the Gov- 
 ernment and of all the citizens of the other. 
 
 ANALYSIS AND PROOF. 
 
 This article describes, in nearly every phrase, an overt 
 act of treason. The word whosoever, as it is here used, sub- 
 jects to the jurisdiction of courts-martial and military com- 
 missions all persons, either military or civil, who, in the the- 
 ater of operations and during the continuance of war, traffic 
 with the enemy in any of the ways herein denounced. 
 
PUNITIVE ARTICLES OF WAR. <|j 431 
 
 The article defines five offenses: 
 
 I. Relieving the enemy. 
 
 II. Attempting to relieve the enemy. 
 
 III. Harboring or protecting the enemy. 
 
 IV. Holding correspondence with the enemy. 
 
 V. Giving intelligence to the enemy. 
 
 I. BELIEVING THE ENEMY. 
 
 " Relieves," in the sense here used, is substantially equiva- 
 lent to furnishes or supplies. It is immaterial whether the 
 articles furnished are needed by the enemy or whether the 
 transaction is a donation or sale. Knowledge or intent is 
 not an essential in proof of this offense. 
 
 PROGS'. 
 
 (a) That the accused either directly or indirectly fur- 
 nished the enemy with a certain article or articles. 
 
 EL Attempting to Believe the EjLemy. 
 
 As to the meaning of " attempting " see paragraph 426, supra, 
 under A. W. 76. 
 
 PROOF. 
 
 That the accused committed some act done with the purpose 
 in view of either directly or indirectly furnishing the enemy 
 with a certain article or articles, whether or not the articles 
 actually reached the enemy. 
 
 III. HARBORING OR PROTECTING THE ENEMY. 
 
 An enemy is harbored or protected when he is shielded either 
 physically or by use of any artifice, aid, or representation 
 from any injury or misfortune which in the chance of war 
 may befall him. It must appear that the offense is know- 
 ingly committed. But, as in all other cases where knowledge 
 must be proved, circumstances sufficient to put a reasonable 
 man on notice will be sufficient to charge the accused with 
 notice. 
 
^[ 431 CHAPTER XVII. 
 
 PROOF. 
 
 (a) That the accused harbored or protected a certain 
 person. 
 
 (b) That the person so protected was an enemy, and that 
 the accused had notice or is chargeable with notice of this 
 fact. 
 
 IV. HOLDING CORRESPONDENCE WITH THE ENEMY. 
 
 Correspondence does not necessarily import a mutual ex- 
 change of communication. The rule requires absolute non- 
 intercourse, and any communication, no matter what may be 
 its tenor or intent, is here denounced. The prohibition lies 
 against any method of communication whatsoever, from the 
 winking of an eye to the sending of script, and the offense 
 is complete the moment the communication emanates from 
 the accused whether it reaches its destination or not. The 
 words " directly or indirectly " are construed as applying to 
 this offense, and they include within the prohibition com- 
 munications printed in newspapers and intended for the 
 enemy and communications conveyed to the enemy through 
 friendly or neutral hands. It is essential to prove that the 
 offense was knowingly committed. 
 
 Citizens of neutral powers resident in or visiting invaded 
 or occupied territory can claim no immunity from the cus- 
 tomary laws of war which threaten punishment for communi- 
 cation with the enemy. The offense of communicating with 
 the enemy when committed by a resident of occupied terri- 
 tory constitutes war treason and is properly charged under 
 this article. 
 
 PBOOP. 
 
 (a) That the accused uttered a certain communication. 
 
 (&) That the communication was intended for a certain 
 person, and that the accused had notice or is chargeable with 
 notice that this person was an enemy. 
 
 V. GIVING INTELLIGENCE TO THE ENEMY. 
 
 This is a particular case of corresponding with the enemy, 
 rendered more heinous by the fact that the communication 
 
 390 
 
PUNITIVE ARTICLES OF WAR. ^f 432 
 
 contains intelligence that may be useful to the enemy for any 
 of the multifarious reasons that make information valuable 
 to belligerents. As in the preceding case, knowledge must be 
 proved, and it is immaterial to the issue of guilt whether the 
 intelligence was conveyed by direct or indirect means. The 
 word " intelligence " imports that the information conveyed 
 is true, at least in part. 
 
 (a) That the accused knowingly conveyed to the enemy 
 certain information. 
 
 (b) That the information was true, at least in part. 
 
 432. Eighty -second Article of War: 
 
 Any person who in time of war shall be found lurking or acting as 
 a spy in or about any of the fortifications, posts, quarters, or en- 
 camyments of any of the armies of the United States, or elsewhere* 
 shall be tried by a general court-martial or by a military commis- 
 sion, and shall, on conviction thereof, suffer death. 
 
 DEFINITIONS AND PRINCIPLES. 
 See below. 
 
 ANALYSIS AND PROOF. 
 
 The words " any person " bring within the jurisdiction of 
 courts-martial and military commissions all persons of what- 
 ever nationality or civil status who may be accused of the 
 offense denounced by the article. 
 
 The article defines one crime being a spy. 
 
 I. BEING A SPY. 
 
 The principal characteristic of this offense is a clandestine 
 dissimulation of the true object sought, which object is an 
 endeavor to obtain information with the intention of com- 
 municating it to the hostile party. 
 
 Thus, soldiers not wearing disguise, dispatch riders, 
 whether soldiers or civilians, and persons in aircraft who 
 carry out their missions openly and who have penetrated 
 hostile lines are not to be considered spies, for the reason that, 
 while they may have resorted to concealment, they have prac- 
 ticed no dissimulation. 
 
 391 
 
*J 433 CHAPTER xvn. 
 
 It is necessary to prove an intent to communicate informa- 
 tion to the hostile party. This intent will very readily be 
 presumed on proof of a deceptive insinuation of the accused 
 among our forces, but this presumption may be rebutted by 
 very clear evidence that the person had come within the 
 lines for a comparatively innocent purpose, as to visit his 
 family or that he has assumed a disguise to enable him to 
 reach his own lines. 
 
 It is not essential that the accused obtain the information 
 sought or that he communicate it. The offense is complete 
 with the lurking or dissimulation with intent to accomplish 
 these objects. 
 
 An act of espionage completed by the escape of the accused 
 to his own lines can not be the subject of trial if the quondam 
 spy is later captured. 
 
 A person living in occupied territory who, without dis- 
 simulation, merely reports what he sees or what he hears 
 through agents to the enemy may be charged under the pre- 
 ceding article with communicating or giving intelligence to 
 the enemy, but he may not be charged under this article with 
 being a spy. 
 
 PROOF. 
 
 (a) That the accused was found at a certain place within 
 our lines, acting clandestinely, or under false pretenses. 
 
 (>) That ho was obtaining, or endeavoring to obtain, in- 
 formation with intent to communicate the same to the enemy. 
 
 SECTION VI. 
 MISCELLANEOUS CRIMES AND OFFENSES. 
 
 433. Eighty-third Article of War: 
 
 Any person subject to military law rvko willfully, or through 
 neglect, suffers to be lost, spoiled, damaged, or wrongfully disposed 
 of, any military property belonging to the United Stnte* shall make 
 good the IO*A or damage find suffer such punishment as a court- 
 martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The loss, etc., may be said to be willfully suffered when the 
 accused knowing the loss, etc., to be imminent or actually go- 
 
 892 
 
PUNITIVE ARTICLES OF WAR. ^J 433 
 
 ing on, takes no steps to prevent it, as where a sentinel seeing 
 a small and readily extinguishable fire in a stack of hay on 
 his post allows it to burn up. A suffering through neglect 
 implies an omission to take such measures as were appropriate 
 under the circumstances to prevent a probable loss, dam- 
 age, etc. 
 
 The willful or neglectful sufferance specified by the article 
 may consist in a deliberate violation or positive disregard of 
 some specific injunction of law, regulations, or orders ; or it 
 may be evidenced by such circumstances as a reckless or un- 
 warranted personal use of the property ; causing or allowing 
 it to remain exposed to the weather, insecurely housed or not 
 guarded; permitting it to be consumed, wasted, or injured 
 by other persons; loaning it to an irresponsible person by 
 whom it is damaged, etc. (Winthrop, p. 862,) 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any one subject to military law. See 
 article 2. 
 
 The article embraces eight off enses, indicated by the follow- 
 ing diagram : 
 
 Any person 
 subject 
 military 
 
 ^Willfully 
 
 or > Suffers to be 
 
 [Lost, 
 Spoiled, 
 Damaged, 
 
 Through neglect 
 law who J J 
 
 or 
 
 Wrongfully 
 disposed of 
 
 Any mili- 
 tary prop- 
 erty be- 
 longing to 
 the United 
 States. 
 
 These offenses may be briefly treated under the heading 
 " Suffering military property to be lost, etc." 
 
 I. SUFFERING MILITARY PROPERTY TO BE LOST, ETC. 
 PEOOF. 
 
 (a) That certain military property was lost, spoiled, dam- 
 aged, or wrongfully disposed of in the manner alleged. 
 
 (b) That such loss, spoiling, damage, or wrongful dispo- 
 sition was suffered by the accused through a certain omis- 
 sion of duty on his part. 
 
II 434 
 
 CHAPTER XVII. 
 
 (c) That such omission was willful, or negligent, as al- 
 leged. 
 
 (d) The value of the property, as alleged. 
 
 434. Eighty-fourth Article of War: 
 
 Any Holdier who sells or wrongfully disposes of or willfully or 
 through neglect injures or loses any horse, arms, ammunition, ac- 
 coutennents, equipment, clothing, or other property issued for use 
 in the military service shall be punished as a court-martial may 
 direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See definitions under A. W. 80, paragraph 430, supra. 
 
 Accouterments applies in the military sense to those parts 
 of the soldier's equipment which are issued by the Ordnance 
 Department * * * in connection with his arms and am- 
 munition, such, for example, as belts and cartridge pouches. 
 (Digest, p. 1084.) 
 
 Clothing includes all articles of clothing whether issued 
 under a clothing allowance or otherwise, for example, over- 
 coats and sweaters as now issued are articles of clothing. 
 
 D 
 
 That the property sold, disposed of, lost, or injured was 
 issued to someone other than the accused is immaterial ; the 
 article applies to any property issued for use in the military 
 service. 
 
 ANALYSIS AND PROOF. 
 
 This article applies to enlisted men only. 
 The article defines a number of offenses, indicated by the 
 following diagram: 
 
 Any soldier 
 who 
 
 Sells 
 
 or 
 Wrongfully disposes of 
 
 or 
 
 Willfully 
 
 fin lures 
 or 
 
 Through 
 neglect 
 
 I Loses 
 
 
 Horse, 
 
 
 
 Arms, 
 
 
 
 Ammunition, 
 
 Issued for 
 
 
 Accouterrnents, 
 
 use in the 
 
 Any 
 
 Equipment, 
 
 milita ry 
 
 
 Clothing, 
 
 service. 
 
 
 or 
 
 
 
 other property 
 
 
 394 
 
PUNITIVE AKTICLES OF WAR. If 434 
 
 These offenses may be treated under the following heads : 
 
 I. Selling or wrongfully disposing of military property. 
 
 II. Willfully or through neglect injuring or losing military 
 property. 
 
 I. SELLING OR WRONGFULLY DISPOSING OF MILITARY PROPERTY. 
 
 See matter under A. W. 80, Item I. 
 
 PEOOF. 
 
 (a) That the accused soldier sold or otherwise disposed of 
 certain property in the manner alleged. 
 
 (b) That such disposition was wrongful. 
 
 (c) That the property was issued for use in the military 
 service. 
 
 (d) The value of the property as alleged. 
 
 II. WILLFULLY OR THROUGH NEGLECT INJURING OR LOSING MILI- 
 
 TARY PROPERTY. 
 
 A willful injury or loss is one that is intentionally occa- 
 sioned. A loss or injury is occasioned through neglect when 
 it is the result of a want of such attention to the nature or 
 probable consequences of an act or omission as was appro- 
 priate under the circumstances. 
 
 PROOF. 
 
 (a) That certain property was injured in a certain way or 
 lost, as alleged. 
 
 (b) That such property was issued for use in the military 
 service. 
 
 (<?) That such injury or loss was willfully caused by the 
 accused in a certain manner, as alleged; or that such injury 
 or loss was the result of certain neglect on the part of the ac- 
 cused. 
 
 (d) The value of the property, as alleged. 
 
 395 
 
If 435 CHAPTER XVII. 
 
 435. Eighty-fifth Article of War: 
 
 Any officer who Is found drunk on duty shall, If the offense be o-'>m- 
 mitted in time of war, be dismissed from the service and suffer such 
 other punishment a a court-martial may directs and if the offense 
 he committed in time of pesce, he Khali be punished an a court- 
 martial may direct. Any person subject to military law, except an 
 officer, who is found drunk on duty shall be punished as a eauvt- 
 uiurtial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The article does not require that the accused shall have 
 become drunk, but that he shall have been found, i. e., dis- 
 covered or perceived, to be drunk, when on duty, and it does 
 not therefore necessarily follow that his drunkenness shall 
 have commenced after the duty has been entered upon. To 
 permit an officer or soldier, when inebriated, to go upon any 
 duty of importance, while in general involving an injustice 
 to the individual, is also a reprehensible act and a military 
 offense in the superior who knowingly suffers it. But the 
 fact that he was already intoxicated can not render the 
 party himself any the less legally liable under the article, if, 
 after having entered upon the duty, his intoxication con- 
 tinues and his condition is detected. But, on the other hand, 
 a soldier (or officer) is not "found" drunk in the sense of 
 the article, if he is simply discovered to be drunk when or- 
 dered, or otherwise required, to go upon the duty, upon which, 
 because of his condition, he does not enter at all. (Winthrop, 
 pp. 944, 945.) 
 
 Whether the drunkenness was caused by liquor or drugs 
 is immaterial, but where the sole cause was a liquor or drug 
 duly prescribed by a medical officer of the Army or a civil 
 physician and taken in good faith according to the prescrip- 
 tion no offense is committed. 
 
 The fact that the accused, owing to an unsuspected sus- 
 ceptibility, permanent or temporary, was made drunk by in- 
 dulging in a very small amount of intoxicant is not a defense. 
 
 Any intoxication which is sufficient to sensibly impair the 
 rational and full exercise of the mental and physical faculties 
 is drunkenness within the meaning of the article. (Digest, 
 p. 540.) 
 
 S96 
 
PUNITIVE ARTICLES OF WAR. <[[ 485 
 
 Where the accused is charged under this article, a convic- 
 tion under the general article of l>eing under the influence of 
 liquor is wholly inconsistent if he was found in such condi- 
 tion while on duty. The article requires no particular degree 
 of drunkenness, and if the accused was found so far under 
 the influence of liquor as to be punishable at all he was 
 found drunk on duty within the meaning of this article. 
 
 The term " duty " as used in this article, means of course 
 military duty. But it is important to note every duty 
 which an officer or soldier is legally required, by superior 
 military authority, to execute, and for the proper execution 
 of which he is answerable to such authority, is necessarily 
 a military duty. (Winthrop, p. 949.) 
 
 The words " on duty," as used in this article, have also re- 
 ceived an authoritative interpretation. As applied to the 
 commanding officer of a post, or of an organization, or de- 
 tachment in the field, the senior officer present, in the actual 
 exercise of command, is constantly on duty; the term being 
 here used in contradistinction to " on leave." In the case of 
 other officers, or of enlisted men. the term " on duty " has 
 been held to relate to the performance of duties of routine or 
 detail, in garrison or in the field ; the words " off duty," in 
 respect to such persons, relating to such periods or occasions 
 when, no duty being required of them by orders or regula- 
 tions, officers and men are said to occupy that status of leis- 
 ure known to the service as being u off duty." (Davis, 
 p. 408.) 
 
 In time of war and in a region of active hostilities the cir- 
 cumstances are often such that all members of a command 
 may properly be considered as being continuously on duty 
 within the meaning of this article. 
 
 A medical officer of a post, where there are constantly sick 
 persons under his charge who may at any moment require 
 his attendance, may, generally speaking, be deemed to be 
 " on duty " in the sense of the article during the whole day 
 and not merely during the hours regularly occupied by sick 
 call, visiting the sick, or attending hospital. If found drunk 
 at any other hour he may in general be charged with an 
 offense under this article. (Digest, p. 127.) 
 
 397 
 
T| 436 CHAPTER XVII. 
 
 So, also, an officer of the day and members of the guard are 
 on duty during their entire tour within the meaning of this 
 article, but a sentinel found drunk on post is chargeable under 
 the next succeeding article. The article also applies to cases 
 where the duty being performed is merely a preliminary one, 
 such as a reporting for inspection by a soldier designated for 
 guard or a reporting under orders for duty at a post to the 
 commanding officer. 
 
 The offense of a person who absents himself from his duty 
 and is found drunk while so absent, or who is relieved from 
 duty at a post and ordered to remain there to await orders, 
 and is found drunk during such status, is not chargeable un- 
 der this article. 
 
 ANALYSIS AND PROOF. 
 
 This article applies to any person subject to military law. 
 See article 2. 
 
 The article defines one offense, namely, being found drunk 
 on duty. 
 
 I. BEING FOUND DRUNK ON DUTY. 
 
 PROOF. 
 
 (a) That the accused was on a certain duty, as alleged. 
 
 (b) That he was found drunk while on such duty. 
 
 436. Eighty -sixth Article of War: 
 
 Any sentinel who is found drunk or sleeping upon his post, or 
 who leaves it before he is regularly relieved, shall, if the offense be 
 committed in time of war, suffer death or such other punishment as a 
 court-martial may direct; and if the offense be committed in time of 
 peace, he shall suffer any punishment, except death, that a court- 
 martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 As to drunkenness, see matter under eighty-fifth article, 
 supra. 
 
 The term " sentinel " does not include a watchman. 
 
PUNITIVE ARTICLES OF WAR. ^f 436 
 
 A sentinel is on post within the meaning of this article not 
 only when he is walking a duly designated sentinel's post, as 
 is ordinarily the case in garrison, but also " when he may be 
 stationed in observation against the approach of an enemy, 
 or on post to maintain internal discipline, or to guard stores, 
 or to guard prisoners while in confinement or at work." (Di- 
 gest, p. 128.) 
 
 A sentinel's post is not limited to an imaginary line, but in- 
 cludes, according to orders or circumstances, such contiguous 
 area within which he may walk as may be necessary for the 
 protection of property committed to Ms charge or for the dis- 
 charge of such other duties as may be required by general or 
 special orders. The sentinel who goes anywhere within such 
 area for the discharge of his duties does not leave his post, but if 
 found drunk or sleeping within such area he may be convicted 
 of a violation of this article. 
 
 The fact that the sentinel was not posted in the regular 
 way is not a defense. 
 
 ANALYSIS AND PROOF. 
 
 The article applies only to sentinels. 
 The article defines three offenses, namely : 
 
 I. Being found drunk on post. 
 
 II. Being found sleeping on post. 
 
 III. Leaving post before being relieved. 
 
 I. BEING FOUND DRUNK ON POST. 
 
 As to drunkenness, see matter under eighty-fifth article, 
 paragraph 435, supra. 
 
 PBOOF. 
 
 (a) That the accused soldier was posted as a sentinel on a 
 certain post, as alleged. 
 
 (Z>) That he was found drunk while on such post. 
 
 II. BEING FOUND SLEEPING ON POST. 
 
 The fact that the accused had been previously overtaxed 
 by excessive guard duty is not a defense, although evidence 
 to that effect may be received in extenuation of the offense. 
 21358 20 26 
 
If 437 CHAPTER xvn. 
 
 PBOOF. 
 
 (a) That the accused soldier was posted as a sentinel on a 
 certain post, as alleged. 
 
 ( b) That he was found sleeping while on such post. 
 
 m. LEAVING POST BEFORE BEING RELIEVED. 
 
 The offense of leaving post is not committed when a sentinel 
 goes an immaterial distance from the point, path, area, or 
 object which was prescribed as his post. 
 
 PBOOF. 
 
 (a) That the accused soldier was posted as a sentinel on 
 a certain post, as alleged. 
 
 (b) That he left such post without being regularly re- 
 lieved. 
 
 437. Eighty-seventh Article of War: 
 
 Any officer commanding: in any garrison, fort, barracks, camp, or 
 other place where troops of the United States may be serving; who, 
 for his private advantage, lays any duty or imposition upon or Is 
 interested in the sale of any victuals or other necessaries of life 
 brought into such garrison, fort, barracks, camp, or other place for 
 the use of the troops, shall be dismissed from the service and 
 suffer such other punishment as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 See the terms of the article. 
 
 ANALYSIS OF PROOF. 
 
 This article applies to commanding officers only. 
 The article defines offenses which may be treated under two 
 heads, as follows: 
 
 I. Laying a duty or imposition upon the bringing in of 
 victuals, etc. 
 
 II. Being interested in the sale of victuals, etc. 
 
 400 
 
PUNITIVE ARTICLES OF WAR. ^f 437 
 
 I. LAYING A DUTY OR IMPOSITION UPON THE BRINGING IN OF 
 VICTUALS, ETC. 
 
 A commanding officer who should prohibit the entry into 
 his camp of peddlers of vegetables for the troops, permitting 
 it only if the peddlers pay him for the privilege, would be 
 guilty of this offense whether any money was actually paid 
 or not. 
 
 PROOF. 
 
 (a) That the accused officer was in command of a certain 
 place where troops of the United States were serving, as 
 alleged. 
 
 (b) That he laid a certain duty or imposition upon the 
 bringing into such command of victuals or other necessaries 
 of life for the use of such troops, as alleged. 
 
 (c) That such duty or imposition was laid for his own 
 private advantage. 
 
 II. BEING INTERESTED IN THE SALE OF VICTUALS, ETC. 
 
 The interest need not be a direct interest, such as that 
 attaching to a partnership, or part ownership, of the articles 
 introduced for sale, but may be one of an indirect or contin- 
 gent character, as for instance, an interest arising from an 
 agreement or mutual understanding between the officer and 
 the owner of the supplies that the former shall receive a per- 
 centage on the sales, or a commission on all profits above a 
 certain sum, or some present of money or goods in return for 
 his sanction of the speculation or promotion of the business. 
 (Winthrop, p. 870.) 
 
 Thus a commanding officer commits this offense when he 
 agrees with a peddler to exclude others in consideration of 
 some advantage to himself. 
 
 A commanding officer might become interested in the sale 
 of articles by the post exchange within the meaning of this 
 article. 
 
 PROOF. 
 
 (a) That the accused officer was in command of a certain 
 place where troops of the United States were serving, as 
 alleged. 
 
 401 
 
If 438 CHAPTER XVII. 
 
 (b) That he became pecuniarily interested in a certain way 
 in the sale of certain victuals or other necessaries of life to 
 such troops, as alleged. 
 
 (c) The he so became interested for his own private 
 advantage. 
 
 438. Eighty-eighth Article of War: 
 
 Any person subject to military law who abuses, intimidates, does 
 violence to, or wrongfully interferes with any person bringing pro- 
 visions, supplies, or other necessaries to the camp, garrison, or quar- 
 ters of the forces of the United States shall suffler such punishment 
 as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the terms of the article. 
 
 This article in no way interferes with the lawful powers of 
 a military commander to exclude persons or supplies inimi- 
 cal to health or good order of his command. The purpose of 
 this article is to prevent the diminishing or cutting off of the 
 supply of necessaries brought in by private persons through 
 any abuse, intimidation, doing violence to, or wrongfully in- 
 terfering with such persons. The prohibition against inter- 
 ference, etc., therefore, applies not only while such persons 
 are coming to the camp, etc., but also while they remain and 
 during their return therefrom. 
 
 The wrongful interference contemplated would include not 
 only any wrongful act not included in the terms " abuse, etc.," 
 which prevents, obstructs, or delays the movements of the per- 
 son, but any wrongful interference with the supplies them- 
 selves, such as stealing or destroying them. 
 
 ANALYSIS AND PROOF. 
 
 This article applies to any person subject to military law. 
 The article defines a number of offenses which may be briefly 
 treated under one head, as follows : 
 
 I. INTIMIDATING, DOING VIOLENCE TO, OR WRONGFULLY INTER- 
 FERING WITH PERSONS BRINGING NECESSARIES. 
 
 PROOF. 
 
 (a) That a certain person named or described was bring- 
 ing provisions, supplies, or other necessaries to a certain 
 
 402 
 
PUNITIVE AKTICLES OF WAK. ^f 439 
 
 camp, garrison, or quarters of the forces of the United States, 
 as alleged. 
 
 (b) That the accused abused, intimidated, did violence to, 
 or wrongfully interfered with such person while so engaged 
 and in the manner alleged. 
 
 439. Eighty-ninth Article of War: 
 
 All persons subject to military law are to behave themselves or- 
 derly in quarters, garrison, camp, and on the march; and any person 
 subject to military law who commits any waste or spoil, or willfully 
 destroys any property whatsoever (unless by order of his commanding 
 officer), or commits any kind of depredation or riot shall be pun- 
 ished as a court-martial may direct. Any commanding officer who, 
 upon complaint made to him, refuses or omits to see reparation made 
 to the party injured, in so far as the offender's pay shall go* toward 
 such reparation, as provided for in article one hundred and flve, shall 
 be dismissed from the service, or otherwise punished, as a court- 
 martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the terms of the article and the definitions under the 
 respective offenses as given below. 
 
 ANALYSIS AND PROOF. 
 
 This article divides itself into two parts, one embracing all 
 persons subject to military law, and the other commanding 
 officers only. 
 
 The article defines a number of offenses which may be 
 briefly treated under the following headings : 
 
 I. Committing any waste or spoil. 
 
 II. Willfully destroying property. 
 
 III. Committing depredation or riot. 
 
 IV. Refusing or omitting to see reparation made. 
 
 I. COMMITTING ANY WASTE OR SPOIL. 
 
 The terms " waste " or " spoil " as used in this article re- 
 fer to such acts of voluntary destruction of or permanent 
 damage to real property as burning down buildings, tearing 
 down fences, cutting down shade or fruit trees, and the like. 
 
If 439 CHAPTER XVII. 
 
 PROOF. 
 
 (a) That the accused being with a certain command in 
 quarters, camp, garrison, or on the march, committed waste 
 or spoil on certain property in the manner alleged. 
 
 (b) That such acts were not ordered by his commanding 
 officer. 
 
 II. WILLFULLY DESTROYING PROPERTY. 
 
 To be destroyed it is not necessary that the property be 
 completely demolished or annihilated. It is sufficient if it is 
 so far injured as to be useless for the purpose for which it was 
 intended. 
 
 PBOOF. 
 
 (a) That the accused being with a certain command in 
 quarters, camp, garrison, or on the march, destroyed cer- 
 tain property, as alleged. 
 
 (b) That such destruction was willful and was not 
 ordered by his commanding officer. 
 
 III. COMMITTING DEPREDATION OR RIOT. 
 
 The term " any kind of depredation " includes plundering, 
 pillaging, robbing, and any other willful damage to property 
 not included in the preceding specific terms of the article. 
 
 A riot is a tumultuous disturbance of the peace by three or 
 more persons assembled together of their own authority, with 
 the intent mutually to assist one another against anyone who 
 shall oppose them in the execution of some enterprise of a 
 private nature, and who afterwards actually execute the same 
 in a violent and turbulent manner, to the terror of the people, 
 whether the act intended was of itself lawful or unlawful, 
 (McClain, Grim. Law, sec. 992.) 
 
 PBOOF. 
 
 (a) That the accused being with a certain command in 
 quarters, camp, garrison, or on the march, committed certain 
 acts of depredation on certain property, or certain acts of 
 rioting, as alleged. 
 
 404 
 
PUNITIVE ARTICLES OF WAR. ^f 440 
 
 IV. REFUSING OR OMITTING TO SEE REPARATION MADE. 
 
 Refusing to entertain a proper complaint at all ; refusing 
 or omitting to convene a board for the assessment of damage ; 
 or to act on such proceedings, or to direct the proper stop- 
 pages, are instances of this offense. 
 
 PROOF. 
 
 (a) That the accused was the commanding officer of a cer- 
 tain command in quarters, garrison, camp, or on the march, 
 as alleged. 
 
 (6) That a complaint was duly made to him by a certain 
 person of damage to or loss of certain property occasioned by 
 troops of the accused's command, as alleged. 
 
 (c) That the accused either refused to see reparation made 
 or omitted in the manner alleged to see reparation made to 
 the party injured in so far as the offender's pay would go 
 toward such reparation. 
 
 440. Ninetieth Article of War: 
 
 No person (subject to military law shall use any reproachful 
 or provoking 1 speeches or prestures to another; and any person 
 subject to military law who offends against the provisions of 
 this article shall he pnnished as a court-martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the terms of the article. 
 
 The article is intended to prevent what frequently are the 
 first steps toward quarrels, fights, or serious offenses. 
 
 Reproachful speeches and gestures are such as involve cen- 
 sorious comment on the actions or opinions of another. Pro- 
 voking speeches and gestures are such as tend to exasperate 
 or to arouse anger and resentment. 
 
 ANALYSIS AND PROOF. 
 
 This article applies to any person subject to military law. 
 The article defines offenses which may be treated under one 
 heading, as follows : 
 
 I. USING PROVOKING SPEECHES OR GESTURES. 
 
 PBOOF. 
 
 (a) That the accused used certain speeches or gestures to 
 a certain person, as alleged. 
 
 405 
 
^f 441 CHAPTER XVII. 
 
 (&) That the speeches or gestures were reproachful or pro- 
 voking. 
 
 (c) That the person to whom such speeches or gestures 
 were addressed is in one of the classes of persons subject to 
 military law. 
 
 441. Ninety-first Article of War: 
 
 Any person subject to military law vrlio fights or promotes or 
 is concerned in or connives at fighting? a duel, or who having; 
 knowledge of a challenge sent or about to be sent fails to report 
 the fact promptly to the proper authority shall, if an officer, be 
 dismissed from the service or suffer such other punishment as a 
 court-martial may direct; and if any other -person subject to 
 military lair, shall suffer such punishment as a court-martial 
 may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the terms of the article. 
 
 A duel is a concerted fight between two persons with 
 deadly weapons, the object of which is claimed to be the sat- 
 isfaction of wounded honor. (Wharton, vol. 2, p. 2283.) 
 
 NOTE. The offenses made punishable by this article are of such in- 
 frequent occurrence that it is considered inadvisable to comment more 
 fully upon them. In a case of doubt, works on military law should 
 be consulted. 
 
 ANALYSIS AND PROOF. 
 
 This article applies to any person subject to military law. 
 The article embraces a number of offenses which may be 
 briefly treated under the following headings : 
 I. Fighting or promoting a duel. 
 IT. Being concerned in or conniving at fighting a duel. 
 III. Failing to report knowledge of a challenge. 
 
 I. FIGHTING OR PROMOTING A DUEL. 
 
 Fighting or promoting a duel would include such acts as 
 the sending, giving, or accepting a challenge, or the carrying 
 of a challenge or acceptance, the arrangement of the pre- 
 liminaries, and, in general, any act by which a duel is inten- 
 tionally furthered, encouraged, or incited, whether the duel 
 takes place or not. 
 
 406 
 
PUNITIVE AKTICLES OF WAR. ^f 442 
 
 PROOF. 
 
 (a) That the accused fought a duel with a certain person 
 as alleged, or that he promoted a duel between certain per- 
 sons in the manner alleged. 
 
 II. BEING CONCERNED IN OR CONNIVING AT FIGHTING A DUEL. 
 
 Being concerned in or conniving at fighting a duel would 
 include the being present thereat in some capacity other than 
 a principal, as in the case of seconds and doctors. 
 
 PROOF. 
 
 (a) That the accused was concerned in or connived at 
 fighting a certain duel in the manner alleged. 
 
 III. FAILING TO REPORT KNOWLEDGE OF A CHALLENGE. 
 
 A challenge is a written or verbal demand, request, or in- 
 vitation to another to fight a duel. 
 
 To constitute a challenge no particular form is necessary. 
 It is enough if what was sent or about to be sent, considered 
 in connection with the circumstances, amounts to such a de- 
 mand, request, or invitation. However, an effort to provoke 
 a challenge or an announcement of a willingness to accept 
 one is not a challenge. 
 
 As to knowledge, see matter under fifty-fifth article. 
 
 PROOF. 
 
 (a) That the accused knew that a certain challenge had 
 been sent, or was about to be sent, as alleged. 
 
 (5) That he either did not report the fact to the proper 
 authority at all, or that he unnecessarily delayed making such 
 report, as alleged. 
 
 442. Ninety-second Article of War: 
 
 Any person subject to military law who commits murder or 
 rape shall suffer death or imprisonment for life, as a court- 
 martial may direct; but no person shall be tried by court- 
 martial for murder or rape committed within the geographical 
 limits of the States of the Union and the District of Columbia 
 in time of peace. 
 
 407 
 
Tf 442 CHAPTEK XVII, 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The crimes and offenses of which courts-martial are given 
 jurisdiction by the ninety-second and ninety-third articles of 
 war, and by the phrase " and all crimes or offenses not capital " 
 in the ninety-sixth article, are the same " offenses of a civil 
 nature " mentioned in the forty-second article of war. Their 
 definition is, therefore, to be sought, as the forty-second article 
 prescribes, (1) in the "statutes of the United States of general 
 application within the continental United States, excepting sec- 
 tion 289, Penal Code of the United States, 1910;" and (2) 
 where not defined in such statutes then " in the law of the 
 District of Columbia," i. e., if defined by a statute in force in 
 the District of Columbia, e. g., the Code of the District of Colum- 
 bia, then in that statute, otherwise in the common law as in 
 force and recognized in the District of Columbia. Where an 
 offense is defined by the Federal Penal Code or other statute of 
 general application throughout the continental United States, 
 such definition will govern courts-martial and military tribunals, 
 although there may be a different definition in the Code of the 
 District of Columbia; the principle being that, wherever the 
 general statutes conflict with any statute ef the District of 
 Columbia, the latter must give way, since resort is to be had 
 to the law of the District of Columbia only where the general 
 Federal statutes are silent. 
 
 ANAL* sis AND PROOF. 
 
 The article applies to any person subject to military law. 
 See articles. 
 The article defines two offenses, as follows : 
 
 I. Murder. 
 
 II. Rape. 
 
 I. MURDER. 
 
 Murder is the unlawful killing of a human being with 
 malice aforethought. (Federal Penal Code, 1910, sec. 273.) 
 
 " Unlawfully " as used in the definition of murder means 
 without legal justification or excuse. 
 
 A homicide done in the proper performance of a legal duty 
 is justifiable. Thus, executing a person pursuant to a sen- 
 
 408 
 
PUNITIVE ABTICLES OF WAE. ^f 442 
 
 tence of death ; killing in suppressing a mutiny or in prevent- 
 ing the escape of a prisoner where no other available means 
 are adequate; killing an enemy in battle; and killing to pre- 
 vent the commission of a felony attempted by force or sur- 
 prise, such as murder, burglary, or arson, are cases of justifi- 
 able homicide. 
 
 The right and duty of a sentinel over a prisoner in his 
 charge in case of attempted escape is discussed in the Manual 
 of Interior Guard Duty, 1914. 
 
 This right and duty extends to other members of the guard 
 whose duties include the safe-keeping of such prisoner. (Di- 
 gest, p. 583.) 
 
 The same principles apply to the arrest of a soldier by offi- 
 cers or soldiers authorized to make the particular arrest. 
 
 A party of soldiers left their camp at night in time of war 
 without leave contrary to positive orders and proceeded to a 
 neighboring town, where they created a disturbance. Their 
 commanding officer followed them, found them in a saloon, 
 and was about to arrest them, when they broke from him, and 
 knowing who he was disregarded his order to halt and ran 
 away from him. He repeated his order, and not being obeyed 
 and having no other means of detaining them, fired upon 
 them while fleeing with a pistol, and shot and killed one 
 of them. Held) that he did nx)t use undue force in endeavor- 
 ing to maintain discipline and to arrest the offenders whom 
 he was endeavoring to return to their stations, and that he 
 was not guilty of an offense requiring punishment, and that 
 his conduct under the circumstances in which he was placed 
 was justified. (Digest, p. 480.) 
 
 The general rule is that " The acts of a subordinate officer 
 or soldier, in compliance with his supposed duty, or of su- 
 perior orders, are justifiable, and he will be protected against 
 the consequences, unless they are manifestly beyond the 
 scope of his authority, and such that a man of ordinary sense 
 and understanding would know to be illegal, where he acts 
 in good faith and without malice." (Wharton on Homicide, 
 3d ed., p. 731.) 
 
 The foregoing principles should not be construed as con- 
 ferring immunity on an officer or soldier who willfully or 
 
 409 
 
If 442 CHAPTER XVII. 
 
 through culpable negligence does acts endangering the lives 
 of innocent third parties in the discharge of his duty to pre- 
 vent escape or effect an arrest. 
 
 But where a guard fired on a prisoner fleeing down a pub- 
 lic street which was apparently clear, under circumstances 
 that would have justified the homicide of the prisoner, and 
 thereby accidentally killed a young woman whom he did not 
 see at the time he shot, it was held that the homicide was 
 excusable. 
 
 A homicide which is the result of an accident or misadven- 
 ture in doing a lawful act in a lawful manner, or which is 
 done in self-defense on a sudden affray, is excusable. Thus, 
 where a lawful operation, performed with due care and skill, 
 causes the death of the patient, the homicide is excusable. 
 To excuse a killing on the ground of self-defense upon a sud- 
 den affray, the killing must have been necessary to save tho 
 person's life or the lives of those whom he is bound to pro- 
 tect, or to prevent great bodily harm to himself or them. 
 The danger must be believed on reasonable grounds to be 
 imminent, and no necessity will exist until the person, if not 
 in his own house, has retreated as far as he safely can. The 
 person doing the killing must not have been the aggressor 
 and intentionally provoked the difficulty; but if he with- 
 draws in good faith and his adversary follows and renews 
 the fight, the latter becomes the aggressor. 
 
 The death must take place within a year and a day of the 
 act or omission that caused it, and the offense is committed 
 at the place of such act or omission although the victim may 
 have died elsewhere. 
 
 Malice does not necessarily mean hatred or personal ill 
 will toward the person killed, nor an actual intent to take his 
 life, or even to take anyone's life. The use of the word 
 " aforethought " does not mean that the malice must exist for 
 any particular time before commission of the act, or that the 
 intention to kill must have previously existed. It is suffi- 
 cient that it exist at the time the act is committed. (Clark, 
 pp. 187, 188.) 
 
 Malice aforethought may exist when the act is unpremedi- 
 tated. It may mean any one or more of the following states 
 
 410 
 
PUNITIVE AET1CLES OF WAK. ^f 442 
 
 of mind preceding or coexisting with the act or omission by 
 which death is caused; (a) An intention to cause the death 
 of, or grievous bodily harm to, any person, whether such per- 
 son is the person actually killed or not (except when death 
 is inflicted in the heat of a sudden passion, caused by adequate 
 provocation) ; (5) knowledge that the act which causes the 
 death will probably cause the death of, or grievous bodily 
 harm to, any person, whether such person is the person actu- 
 ally killed or not, although such knowledge is accompanied 
 by indifference whether death or grievous bodily harm is 
 caused or not, or by a wish that it may not be caused ; (<?) 
 intent to commit any felony; (d) an intent to oppose force 
 to an officer or other person lawfully engaged in the duty of 
 arresting, keeping in custody, or imprisoning any person, or 
 the duty of keeping the peace, or dispersing an unlawful as- 
 sembly, provided the offender has notice that the person 
 killed is such officer or other person so employed. (.Clark 
 p. 1ST.) 
 
 PEOOF. 
 
 (a) That the accused killed a certain person named or 
 described by certain means, as alleged. This involves proof 
 
 (1) That the person alleged to have been killed is 
 
 dead. 
 
 (2) That he died in consequence of an injury received 
 
 by him. 
 
 (3) That such injury was the result of the act of the 
 
 accused. 
 
 (4) That the death took place within a year and a 
 
 day of such act. 
 
 (Z>) That such killing was with malice aforethought; that 
 is, that the accused was in one or more of the states of mind 
 described above. 
 
 II. RAPE. 
 
 Rape at common law is the having of unlawful carnal 
 knowledge of a woman by force and without her consent. 
 The Federal Penal Code provides (Federal Penal Code, 1910, sec. 
 278), "Whoever shall commit the crime of rape shall suffer 
 death " ; but does not define the crime, thereby adopting the 
 common law definition, which governs conrts-martial. 
 
 411 
 
If 442 CHAPTER XVII. 
 
 As the carnal knowledge must be unlawfully had, a hus- 
 band who has carnal knowledge of his wife forcibly where 
 she does not consent is not guilty of this offense; but he is 
 guilty when he assists another man in having such carnal 
 knowledge. 
 
 Any penetration, however slight, of a woman's genitals is 
 sufficient carnal knowledge, whether emission occurs or not. 
 
 The offense may be committed on a female of any age, on 
 a man's mistress, or on a common harlot. 
 
 Force and want of consent are indispensable in rape ; but 
 the force involved in the act of penetration is alone sufficient 
 force where there is in fact no consent. 
 
 Where there is actual consent to the connection, though 
 such consent be obtained by fraud, there is no rape; thus, 
 where a woman agrees to connection with a physician on his 
 false representation that the act is part of the required treat- 
 ment, or where a man successfully passes himself off to a 
 woman as her husband and is admitted by her to connection 
 as such, the crime of rape is not committed. 
 
 There is no consent where the woman is so idiotic as to be 
 incapable of consenting, and a man having connection with 
 her not believing that he has her consent is guilty of rape. 
 So also where the woman is insensible, unconscious, or asleep, 
 or where her apparent consent was extorted by violence to 
 her person or fear of sudden violence. 
 
 Mere verbal protestations and a pretense of resistance do 
 not of course show a want of consent, but the contrary, and 
 where a woman fails to take such measures to frustrate the 
 execution of the man's design as she is able to, and are called 
 for by the circumstances, the same conclusion may be drawn. 
 
 If the girl is very young, and not enlightened on the ques- 
 tion, the court will demand less clear opposition than in the 
 case of an older and intelligent female, (Bishop's New Criminal 
 law, sec. 1124, subsec. 1.) 
 
 It has been said of this offense that " it is true that rape is 
 a most detestable crime * * * ; but it must be remembered 
 that it is an accusation easy to be made, hard to be proved, 
 but harder to be defended by the party accused, though in- 
 nocent," 
 
 412 
 
PUNITIVE ARTICLES OF WAR. ^f 443 
 
 PROOF. 
 
 (a) That the accused had carnal knowledge of a certain fe- 
 male, as alleged ; 
 
 (b) That the act was done by force and without her 
 consent. 
 
 NOTE. As to carnal knowledge of a female under the age of con- 
 sent, see under A. W. 96, par. 446, Division III (4), infra. 
 
 443. Ninety-third Article of War: 
 
 Any person subject to military law who commits manslaughter, 
 mayhem, arson, burglary, housebreaking, robbery, larceny, em- 
 bezzlement, perjury, forgery, sodomy, assault with intent to commit 
 any felony, assault with Intent to do bodily harm with a dangerous weapon, 
 Instrument, or other thing, or assault with intent to do bodily harm, 
 shall be punished as a court-martial may direct. 
 
 . DEFINITIONS AND PRINCIPLES. 
 
 See matter under several offenses listed in the article. 
 And see the remarks under "Definitions and Principles," para- 
 graph 442, supra, concerning the definitions of offenses under 
 A. W. 92, 93, and 96. 
 
 ANALYSIS AND PROOF. 
 
 This article applies to any person subject to military law 
 The article embraces the following offenses, namely ; 
 
 I. Manslaughter. 
 
 II. Mayhem. 
 
 III. Arson. 
 
 IV. Burglary. 
 
 V. Housebreaking. 
 
 VI. Bobbery. 
 
 VII. Larceny. 
 
 VIII. Embezzlement. 
 
 IX. Perjury. 
 
 X. Forgery. 
 
 XI. Sodomy. 
 
 XII. Assault with intent to commit any felony. 
 
 XIII. Assault with intent to do bodily harm with a dangerous 
 weapon, instrument, or other thing. 
 
 XIV. Assault with intent to do bodily harm. 
 
 413 
 
^[ 443 CHAPTER XVII. 
 
 I. MANSLAUGHTER* 
 
 Manslaughter at common law is unlawful homicide with- 
 out malice aforethought and is either voluntary or invol- 
 untary. 
 
 The Federal Penal Code provides (Federal Penal Code, 1910, 
 sec. 274), "Manslaughter is the unlawful killing of a human 
 being without malice. It is of two kinds: 
 
 "First Voluntary. Upon a sudden quarrel or heat of pas- 
 sion. 
 
 " Second Involuntary. In the commission of an unlawful 
 act not amounting to a felony, or the commission of a lawful 
 act which might produce death, in an unlawful manner, or 
 without due caution and circumspection." 
 
 This statutory definition governs courts-martial. It is, how- 
 ever, declaratory of the common law, to which, therefore, ref- 
 erence may be had for the principles underlying the statutory 
 definitions. 
 
 In voluntary manslaughter the provocation must be such 
 as the law deems adequate to excite uncontrollable passion 
 in the mind of a reasonable man ; the act must be committed 
 under and because of the passion, and the provocation must 
 not be sought or induced as an excuse for killing or doing 
 bodily harm. (Clark, p. 197.) 
 
 The killing may be manslaughter only, even if intentional ; 
 but where sufficient cooling time elapses between the provo- 
 cation and the blow the killing is murder, even if the passion 
 persists. Instances of adequate provocation are: Assault 
 and battery, inflicting actual bodily harm or a gross insult ; 
 an unlawful imprisonment ; and the sight by a husband of an 
 act of adultery committed by his wife. If the person so as- 
 saulted or imprisoned, or the husband so situated at once 
 kills the offender or offenders in a heat of a sudden passion 
 caused by their acts, manslaughter only has been committed. 
 
 Instances of inadequate provocation are : Knowledge by the 
 brother of a female of her seduction; insulting or abusive 
 words or gestures ; and injuries to property. 
 
 In involuntary manslaughter in the commission of an un- 
 lawful act the act must be malum in se and not merely malum 
 prohibitum. Thus the driving of an automobile in slight 
 
 414 
 
PUNITJVE ARTICLES OF WAR. ^ 443 
 
 excess of the speed limit fixed by ordinance is not the kind of 
 unlawful act contemplated, but voluntarily engaging in an 
 affray is such an act. To use an immoderate amount of 
 force in suppressing a mutiny is an unlawful act, and if death 
 is caused thereby the one using such force is guilty of man- 
 slaughter at least, 
 
 Instances of culpable negligence in performing a lawful 
 act are : Negligently conducting target practice so that the 
 bullets go in the direction of an inhabited house within 
 range; pointing a pistol in fun at another and pulling the 
 trigger, believing, but without taking reasonable precautions 
 to ascertain, that it would not be discharged : carelessly leav- 
 ing poisons or dangerous drugs where they may endanger 
 life. 
 
 Instances of culpable negligence in performing an act re- 
 quired by law are : Gross negligence or inattention by those 
 in charge of controlling or operating trains in the discharge 
 of their duties ; culpable failure on the part of a parent to 
 provide food, shelter, and medical attendance for his help- 
 less child where able to do so. 
 
 Where there is no legal duty to act there can, of course, be 
 no neglect. Thus where a stranger makes no effort to save a 
 drowning man, or a person allows a mendicant to freeze or 
 starve to death, no crime is committed. 
 
 PROOF. 
 
 (a) See item (a) under " Proof of murder " under ninety- 
 second article. 
 
 (b) The facts and circumstances of the case, as alleged, 
 indicating that the homicide amounted in law to man- 
 slaughter. 
 
 II. MAYHEM. 
 
 The Federal Penal Code does not recognize the crime of 
 mayhem. (The offense of " maiming," denounced by section 
 283, Federal Penal Code, is a different offense; see par. 446, 
 infra, " maiming.") The Code of the District of Columbia pre- 
 scribing a punishment for mayhem (D. C. Code, sec. 807) does 
 21358 20 27 
 
 415 
 
^f 443 CHAPTER XVII. 
 
 not define the offense, thereby adopting the common-law defini- 
 tion, which will govern courts-martial. 
 
 Mayhem at common law is " a hurt of any part of a man's 
 body whereby he is rendered less able, in fighting, either to 
 defend himself or to annoy his adversary." (Bishop, vol. 2, 
 p. 579.) 
 
 The offense at common law did not include such injuries 
 which merely disfigure, such as cutting off the nose or ear; 
 but did include such injuries as knocking out a front tooth, 
 or castration, which were supposed to weaken a man's fight- 
 ing ability. 
 
 The injury must be willfully and maliciously done, but 
 need not be premeditated. If the hurt is done under circum- 
 stances which would excuse or justify a homicide, no offense 
 is committed. 
 
 A person inflicting such a hurt upon himself is guilty of 
 this offense, and if another does it at his request, both are so 
 guilty. 
 
 PROOF. 
 
 (a) That the accused inflicted on a certain person a certain 
 injury in the manner alleged. 
 
 (&) The facts and circumstances of the act showing such 
 injury to have been inflicted intentionally and maliciously. 
 
 III. AKSON. 
 
 Arson, at the common law, is the malicious burning of an- 
 other's house. (Bishop, vol. 2, p. 5.) 
 
 The Federal Penal Code provides (Federal Penal Code, 1910, 
 sec. 285), "whoever shall willfully and maliciously set fire to, 
 burn, or attempt to burn, or by means of a dangerous explosive 
 destroy, or attempt to destroy, any dwelling house, or any store, 
 barn, stable, or other building, parcel of a dwelling house, shall 
 be imprisoned not more than twenty years." 
 
 The crime denounced in this statute, which governs courts- 
 martial, is substantially the common law crime of arson (TJ. S. 
 v. Cardish, 143 Fed., 640), and is the crime punishable as such 
 under A. W, 93. 
 
 41G 
 
PUNITIVE AKTICLES OF WAR. If 443 
 
 The house must be the dwelling house of another, as the 
 offense is against the habitation, not against property as 
 such. 
 
 The term " dwelling house " includes, as laid down in the 
 Federal statute quoted, outbuildings that form part of the 
 cluster of buildings used as a residence. A mere scorching 
 is not a burning. To constitute a burning some part, how- 
 ever small, of the house must be actually consumed or dis- 
 integrated by charring or by a blaze. 
 
 A shop or store is not the subject of arson unless occupied 
 as a dwelling. It is not arson to burn a house that has never 
 been occupied or which has been permanently abandoned; 
 but it is arson if the occupant is merely temporarily absent. 
 It is not arson to burn one's own dwelling, whoever owns it, 
 or even the dwelling of another at his request, and this is so 
 even if there is an intent to burn an adjoining house belong- 
 ing to a third party ; but it is arson if such house is actually 
 burned. A house occupied by another than the owner is a 
 subject of arson by the owner. 
 
 The burning must be willful and malicious, which excludes 
 a burning arising from negligence or mischance, unless the 
 accused was engaged in the commission of a felony. Where 
 a man, who, in setting fire to his own house to get the insur- 
 ance, burns his neighbor's, he is guilty of arson in burning 
 the neighbor's house. 
 
 PKOOF. 
 
 (a) That the accused either: 
 
 (1) burned, 
 
 (2) set fire to, 
 
 (3) attempted to burn, 
 
 (4) destroyed by means of a dangerous explosive, or 
 
 (5) attempted to destroy by means of a dangerous ex- 
 
 plosive, 
 a certain dwelling house of another, as alleged. 
 
 (7>) Facts and circumstances indicating that the act was 
 willful and malicious. 
 
 NOTE. The offense of burning other buildings, denounced by sec- 
 tion 286, Federal Penal Code, is not arson, but another offense 
 (U. S. v. Cardish, 143 Fed., 640), and is not punishable under A. W. 
 93, but under A. W. 96. (See par. 446, infra.) 
 
 417 
 
TI 443 CHAPTER XVII. 
 
 IV. BURGLARY. 
 
 Burglary is not defined either by the Federal Penal Code or 
 by the Code of the District of Columbia. Therefore the offense 
 made punishable under that name by A. W. 93 is the common 
 law crime of burglary. 
 
 Burglary at common law is the breaking and entering, in 
 the night, of another's dwelling house, with intent to commit 
 a felony therein. (Bishop, vol. 2, p. 56.) 
 
 To constitute burglary the house must be a dwelling house 
 of another, the term " dwelling house *' including outhouses, 
 within the curtilage or the common inclosure ; there must be 
 an actual breaking, or there must be the constructive break- 
 ing involved where an entry is effected by fraud or false pre- 
 tenses, by intimidation, by conspiracy with a servant or other 
 inmate, or by descent of a chimney ; there must be an entry ; 
 the breaking and entry must both be at night, but not nec- 
 essarily on the same night; and there must be an intent to 
 commit a felony in the house at the time of the breaking and 
 of the entering, but the felony need not be committed. (Clark 
 and Marshall, pp. 595, 596.) 
 
 A store is not a subject of burglary unless part of or used 
 also as a dwelling house, as where the occupant uses another 
 part of the same building as his dwelling ; or where the store 
 is habitually slept in by his servants or members of his 
 family. 
 
 The house must be in the status of being occupied at the 
 time of the breaking and entering. It is not necessary to this 
 status that anyone actually be in it; but if the house has 
 never been occupied at all or has been left without any in- 
 tention of returning to it this status does not exist. Separate 
 dwellings within the same building, as a flat in an apartment 
 house or a room in a hotel, are subjects of burglary by other 
 tenants or guests, and in general by the owner of the build- 
 ing himself. At common law a tent is not a subject of bur- 
 glary. 
 
 There must be a breaking, actual or constructive. Merely 
 to enter through a hole left in the wall or roof or through 
 an open window or door, even if left only slightly open and 
 pushed farther open by the person entering, will not consti- 
 
 418 
 
PUNITIVE ARTICLES OF WAR. U 443 
 
 tute an actual breaking; but where there is any removal of 
 any part of the house designed to prevent entry, other than 
 the moving of a partly open door or window, it is sufficient. 
 Thus opening a closed door or window or other similar fixture, 
 or cutting out the glass of a window or the netting of the 
 screen is a sufficient breaking. So also the breaking of an 
 inner door by one who has entered the house without break- 
 ing, or by a servant lawfully within the house, but who has 
 no authority to enter the particular room, is a sufficient break- 
 ing, but unless such a breaking is followed by an entry into 
 the particular room with intent to commit a felony therein, 
 burglary is not committed. 
 
 There is a constructive breaking when the entry is gained by 
 a trick, such as concealing oneself in a box; or under false 
 pretense, such as personating a gas or telephone inspector ; or 
 by intimidating the inmates through violence or threats into 
 opening the door; or through collusion with a confederate, 
 an inmate of the house ; or by descending a chimney, even if 
 only a partial descent is made, and no room is entered. An 
 entry must be effected before the offense is complete ; but the 
 entry of any part of the body, even a finger, is sufficient ; and 
 an insertion into the house of an instrument, except merely 
 to facilitate further entrance, is a sufficient entry. 
 
 Both the breaking and entry must be in the nighttime, 
 which at common law was the period between sunset and sun- 
 rise, when there is not sufficient daylight to discern a man's 
 face, and both must be done with the intent to commit a 
 felony in the house. It is immaterial whether the felony be 
 committed or even attempted, and where a felony is actually 
 intended it is no defense that its commission was impossible. 
 The felony intended may be a statutory felony. 
 
 PBOOF. 
 
 (a) That the accused broke and entered a certain dwelling 
 house of a certain other person, as specified. 
 
 (b) That such breaking and entering was done in the 
 nighttime. 
 
 (c) The facts and circumstances of the case (for instance, 
 the actual commission of the felony) which indicate that 
 
 419 
 
If 443 CHAPTER XVII. 
 
 such breaking and entering were done with the intent to com- 
 mit the alleged felony therein. 
 
 NOTE. When, in charging burglary, it is expected that the evi- 
 dence will show that larceny was also committed, a separate specifica- 
 tion charging larceny should always be inserted in the charges, so 
 that, if the court does not find that a burglary has been committed, but 
 that the accused is guilty of larceny, it can find the accused guilty of 
 the larceny, or the reviewing authority can approve only so much of 
 the findings of guilty as find the accused guilty of the larceny. 
 
 V. Housebreaking. 
 
 The common law does not recognize any offense known by the 
 designation of " housebreaking." Such an offense is, however, 
 recognized and made punishable by section 823 of the Penal 
 Code of the District of Columbia which was in force at the 
 time of the enactment of the revision of the Articles of War of 
 1920, and is the offense made punishable as " housebreaking " 
 by the ninety-third article of war. 
 
 Section 823, Penal Code of the District of Columbia, provides: 
 
 Housebreaking. Whoever shall, either in the night or in the day 
 time, break and enter, or enter without breaking, any dwelling, 
 bank, store, warehouse, shop, stable, or other building, or any apart- 
 ment or room, whether at the time occupied or not, or any steam- 
 boat, canal boat, vessel, or other water craft, or railroad car, or any 
 yard where any lumber, coal, or other goods or chattels are deposited 
 and kept for the purpose of trade, with intent to break and carry 
 away any part thereof or any fixture or other thing attached to or 
 connected with the same, or to commit any criminal offense, shall be 
 imprisoned for not more than fifteen years. 
 
 The offense is akin to burglary at common law, but differs 
 therefrom principally in these five particulars : 
 
 (1) The house is not required to be a dwelling house; 
 but may be a bank, store, or other building, boat, car, etc., 
 named in the statute. 
 
 (2) It is not necessary that the house, bank, store, 
 apartment, room, etc., be occupied at the time of the break- 
 ing and entering, or entering without breaking. 
 
 (3) It is not essential that there be a breaking, as an 
 entry without breaking, if made with the required intent, 
 also constitutes the offense. 
 
 420 
 
PUNITIVE ARTICLES OF WAR. ^f 443 
 
 (4) The breaking and entering, or the entry without 
 breaking, may be either in the night or in the day time. 
 
 (5) The intent need not be to commit a felony, but may 
 be (a) to commit any criminal offense (misdemeanor or 
 felony), or (b) to break and carry away any part of the 
 building (etc.) or any fixture or other thing attached to or 
 connected with the same (but such intent is an essential 
 element of the offense, and must therefore be alleged and 
 proved, in order to support a conviction of this offense). 
 
 The caution in the Note under " burglary," supra, as to plead- 
 ing, where larceny has actually been committed, applies here 
 also. 
 
 PROOF. 
 
 (a) That the accused broke and entered, or entered without 
 breaking, as alleged 
 
 A dwelling 1 , 
 
 A bank, 
 
 A store, 
 
 A warehouse, 
 
 A shop, 
 
 A stable, 
 
 A building of any other kind, 
 
 An apartment, 
 
 A room, 
 
 A steamboat, 
 
 A canal boat, 
 
 A vessel or other water craft, 
 
 A railroad car, or 
 
 A yard where any lumber or coal or other goods or chat- 
 tels were at the time deposited and kept for the pur- 
 pose of trade. 
 
 (b) The facts and circumstances of the case (as, for instance, 
 the actual commission of a felony or of petit larceny) which 
 indicate that the intent was, as alleged, to commit some crimi- 
 nal offense (whether felony or misdemeanor), or to break and 
 carry away some part of the building, etc., or some fixture or 
 other thing attached to or connected with the same. 
 
 421 
 
^ 443 CHAPTER xvii. 
 
 VI. ROBBERY. 
 
 Section 284 of the Federal Penal Code of 1910 provides: 
 
 Whoever, by force and violence, or by putting in fear, shall felon- 
 iously take from the person or presence of another anything of 
 value, shall be imprisoned not more than fifteen years. 
 
 This statute governs court-martial. 
 
 Robbery at common law is the taking, with intent to steal, 
 of the personal property of another, from his person or in 
 his presence, against his will, by violence or intimidation. 
 (Clark, p. 323.) 
 
 The felonious and forcible taking from the person of an- 
 other goods or money to any value by violence or putting 
 him in fear. (Bouvier's Law Dictionary, Rawle's 3rd Re- 
 vision, vol. 3, p. 2971.) 
 
 Robbery includes larceny and the elements of that offense 
 must always be present and must be alleged in the specification 
 and proved at the trial. See matter under heading "VII" 
 under this article. 
 
 Thus it is not robbery to take one's own property, unless 
 the person from whom it is taken has a special property in 
 the goods and the right to possession; nor is it robbery to 
 take property that is honestly believed to be one's own or to 
 take it for a merely temporary use. 
 
 It is not necessary that the person from whom the prop- 
 erty is taken be the actual owner it is enough if he have a 
 possession or a custody that is good against the taker. 
 
 .The property must be taken from the person or in his 
 presence; but to be in the presence it is not necessary that 
 the owner be within any certain distance of his property ; it 
 is enough if he be near enough to be in control of his prop- 
 erty. Thus where some persons entered a house and forced 
 the owner by threats to disclose the hiding place of valuables 
 in an adjoining room, and then, leaving the owner tied, went 
 into such room and stole the valuables their offense was held 
 to be robbery. 
 
 The taking must be against the owner's will by means of 
 violence or intimidation. The violence or intimidation must 
 precede or accompany the taking. Thus where property is 
 
 422 
 
PUNITIVE ARTICLES OF WAR. If 443 
 
 taken by stealth from the person of its owner it is not rob- 
 bery in case the thief overcomes a forcible effort to retake it ; 
 or the owner is deterred by the threats of the thief from mak- 
 ing an attempt to retake it. 
 
 The violence must be actual violence to the person, but the 
 amount of violence used is immaterial. It is enough where 
 it overcomes the actual resistance of the person robbed, or 
 puts him in such a position that he makes no resistance, or 
 suffices to overcome the resistance offered by a chain or other 
 fastening by which the article is attached to the person. 
 Where an article is merely snatched out of another's hand or 
 a pocket is picked by stealth and no other force is used and 
 the owner is not put in fear, the offense is not robbery. But 
 if in snatching the article resistance is overcome, there is 
 sufficient violence, as where a woman's earring is torn from 
 her ear or a hair ornament entangled in her hair is snatched 
 away. So, also, when a person's attention is diverted by be- 
 ing jostled by a confederate of a pickpocket, who is thus en- 
 abled to steal the person's watch, it is a robbery. 
 
 Other instances of robbery by violence are where a man is 
 knocked insensible and his pockets rifled, and where an officer 
 steals property from the person of a prisoner in his charge 
 after handcuffing him on the pretext of preventing his escape. 
 
 It is equally robbery whether the robber prevents resist- 
 ance by rendering his victim physically incapable of making 
 any, or by putting him, by threat or menaces, in such fear 
 that he is warranted in making none. The fear must be a 
 reasonably well-founded apprehension of present or future 
 clanger, and the goods must be taken while such apprehen- 
 sion exists. The danger apprehended may be, for instance, 
 his own death or some bodily injury to him, or the destruction 
 of his habitation, or a prosecution for sodomy. 
 
 In the last case it is immaterial whether the person threat- 
 ened with the prosecution is innocent or guilty of the offense. 
 A danger of being prosecuted for any other offense is held 
 not to be sufficient. (Clark and Marshall, p. 556.) 
 
 When the evidence falls short of proving the force or fear, or 
 other facts, necessary to robbery, the accused, "by proper ex- 
 ceptions, may be found guilty of larceny, when properly alleged. 
 
 423 
 
^ 443 CHAPTER XVII. 
 
 PBOOF. 
 
 (a) The larceny of the property. See proof under larceny 
 infra. 
 
 (b) That such larceny was from the person or in the pres- 
 ence of the person alleged to have been robbed. 
 
 (c) That the taking was by violence or putting in fear, as 
 alleged. 
 
 VII. LARCENY. 
 
 Section 287 of the Federal Penal Code of 1910 provides: 
 Whoever shall take and cany away, with intent to steal or pur- 
 loin, any personal property of another, shall be punished as follows: 
 If the property taken is of a value exceeding fifty dollars, or is taken 
 from the person of another, by a fine of not more than ten thousand 
 dollars or imprisonment for not more than ten years, or both; in all 
 other cases, by a fine of not more than one thousand dollars or by 
 imprisonment not more than one year, or both. If the property 
 stolen consists of any evidence of debt, or other written instrument, 
 the amount of money due thereon, or secured to be paid thereby, 
 and remaining unsatisfied, or which in any contingency might be 
 collected thereon, or the value of the property the title to which is 
 shown thereby, or the sum which might be recovered in the absence 
 thereof, shall be deemed to be the value of the property stolen. 
 
 This is substantially the common-law offense of larceny. 
 
 In larceny there must be a taking and carrying away. 
 When actual physical possession is obtained and the property 
 moved the least distance, the taking and carrying away is 
 complete. Such possession must, however, be complete; 
 thus, enticing a domestic animal a short distance, or seizing 
 property secured by a chain, or causing another to drop prop- 
 erty by knocking his hand is not a taking of such property. 
 The taking need not be by the hands of the thief. Thus, 
 where one, having the required intent to steal, entices a horse 
 into his own stable without touching him, or procures an in- 
 sane person to take the goods, or procures a railroad com- 
 pany to deliver another's trunk by changing the check on it, 
 he is guilty of larceny. 
 
 The taking must be from the actual or constructive posses- 
 sion of the owner without his consent. 
 
 One who has a lawful right to the possession of the prop- 
 erty of another can not steal it. Thus where an article is bor- 
 
 424 
 
PUNITIVE AKTICLES OF WAR. f 443 
 
 rowed or hired in good faith the bailee does not commit lar- 
 ceny if he subsequently during the bailment decides to and 
 does convert the article to his own use. But if at the time 
 the article is borrowed, etc., the borrower intends to convert 
 it, such a taking is larceny. And where the possession of an 
 article is obtained by fraud, although no intent to steal ex- 
 isted at the time, a subsequent forming and carrying out of 
 such intent is a larceny. Thus acceptance of the possession, 
 knowing of the mistake and with the required intent, is a 
 larceny ; but if he accepts it in ignorance of the mistake and 
 in good faith as intended for him, his subsequent appropriat- 
 ing to his own use is not a larceny. 
 
 This same rule applies where a person is paid by mistake 
 more money than he is entitled to. 
 
 The possession of goods may be in one person although 
 the goods themselves be in the actual manual control of an- 
 other, who is said to have the custody of them. Thus, where 
 the owner of a coin gives it to a friend to examine on the spot, 
 he still retains the possession, and if the recipient goes away 
 with the coin intending to steal it he is guilty of larceny. So, 
 too, a guest at a hotel or a private house has the bare custody 
 of articles such as those in his room or given him for use at 
 the table and can commit a larceny of such articles. 
 
 Where a servant receives goods or coins from his master 
 to use, care for, or employ for a specific purpose in his service, 
 the master retains possession and the servant has the eustody 
 only and may commit larceny of them. The fact of the ex- 
 istence of the relationship of master and servant does not 
 prevent the latter from being a bailee of the former's prop- 
 erty, in which case the rules as to bailees apply; for instance, 
 a master might lend his servant a horse to use on the latter's 
 own business. Where, however, a servant receives goods or 
 coins from a third person on behalf of his master he has the 
 possession of the goods or coins and can not commit a larceny 
 of them until they have reached the possession of his master, 
 which they do when delivered into his hands or deposited in 
 the receptacle or place provided for the purpose. Thus, if a 
 clerk receive some coins for his master in the course of busi- 
 ness and place them in the cash drawer or safe belonging to 
 
 425 
 
*[[ 443 CHAPTER XVII. 
 
 the master, he no longer has the possession of the coins and 
 his taking of them with the requisite intent would be larceny ; 
 but he does not relinquish possession if, merely for his own 
 convenience, he uses the safe or drawer as a hiding place. 
 His subsequent taking of the coins would not, therefore, be 
 larceny. 
 
 The distinction between custody and possession is of the 
 utmost importance, for it is often very difficult to determine 
 whether the crime is larceny or embezzlement, each particular 
 case depending upon the peculiar circumstances. To illus- 
 trate the doctrine : Where a third person hands a clerk money 
 to pay a bill which he owes the clerk's employer, and the 
 clerk, instead of putting the money into his employer's safe 
 or other proper place, puts it into his own pocket and appro- 
 priates it, or hides it on the premises and afterwards carries 
 it off, he does not commit larceny, for, as the money has not 
 reached its destination, but is merely in transit, the master 
 has not obtained'possession, either actual or constructive. If, 
 however, the clerk puts the moneys in the safe, it is in his 
 employer's constructive possession; and if he takes it out 
 again and converts it, he is guilty of larceny. If it is not the 
 duty of the clerk to put the money in the safe, but he is re- 
 quired to keep it on his person for his master, then, as soon 
 as he received the money, it has reached its ultimate destina- 
 tion, and he will be guilty if he appropriates it, instead of 
 holding it for his master. If a -master gives his servant a 
 check to take to the bank and get cashed he has mere custody 
 of the check itself, and commits larceny if he appropriates it ; 
 but if he cashes the check and appropriates the money he 
 commits embezzlement only, as the money has never been in 
 the master's possession. (Clark, pp. 285, 286.) 
 
 Where the owner of an article delivers ifc to another, in- 
 tending at the time an unconditional passing of the property 
 as well as the possession, the other can not be guilty of larceny, 
 whatever the inducement employed by him. Thus where 
 property is obtained from a dealer on the false pretense of 
 being sent for it by a regular charge customer, or where 
 property is bought on credit with no intention of paying, or 
 where a bogus check is given in payment of goods or in ex- 
 
 426 
 
PUNITIVE ARTICLES OF WAK. ^f 443 
 
 change for money, or where money is borrowed on false pre- 
 tenses with the understanding that different coins or bills 
 are to be returned, there is no larceny. 
 
 In the case of property delivered by servants or agents, 
 such delivery can not go beyond the actual or apparent au- 
 thority of the servant or agent. So where a master sends his 
 servant with a c. o. d. package, and the purchaser induces the 
 servant to give him the package without payment or pays 
 with a worthless check, intending to keep the package, it is 
 larceny. 
 
 The reason for the rule above stated, as to an intention to 
 pass the property preventing the taking from amounting to 
 larceny, is that the consent of the owner precludes the exist- 
 ence of an essential element of larceny. But where the taking 
 overlaps the consent given, and where the other elements of 
 larceny are present, he who does the taking is guilty of the 
 offense. Thus where one gets candy from a slot machine 
 by using a counterfeit coin, or where a customer after buying 
 a cigar takes the whole box of matches provided by owner of 
 the store for the use of his customer, the offenders are guilty 
 of larceny if the other elements of that offense are present. 
 
 Another application of the rule that the consent must be as 
 broad as the taking is made in cases where the owner's intent 
 is to pass the property in the goods only when a condition is 
 fulfilled. Thus where goods are handed to a purchaser on a 
 cash sale the title is not intended to pass until the price is 
 paid; and if the person receiving them runs off with the 
 goods without paying for them and with the required intent 
 he is guilty of larceny. 
 
 This rule applies in many analagous cases. For instance, 
 it is larceny " for a man to whom money is handed to be 
 changed to run off with it or keep it, animo furandi, and re- 
 fuse to give the change, though the intention may be that he 
 shall keep part of it as pajment for goods purchased or as 
 a loan, for there is no consent to part with the money without 
 receiving the change." (Clark and Marshal, p. 467.) In 
 these cases of conditional delivery the recipient has only the 
 bare custody, and it is therefore immaterial whether the in- 
 tent to steal existed at the time of the delivery, or was formed 
 later. 
 
 427 
 
^[443 CHAPTER XVII. 
 
 The taking may be from any one having possession of the 
 property; hence, property may be stolen from one who him- 
 self has stolen it, and the owner of goods may steal them 
 from a bailee with a special property in them. 
 
 One retains the constructive possession of property al- 
 though it is actually out of his control until some one else 
 takes possession, except in the case of abandoned property. 
 So where a desk was sold and coins were afterwards found 
 by the purchaser in a secret drawer and taken by him, he 
 takes it from the possession of the owner. Where a person 
 finds property he has a right to take it and examine it. If 
 the circumstances give him no clue to the ownership he can 
 rightfully appropriate it, and this act or a subsequent refusal 
 to give it up to the owner will not be a larceny. If the cir- 
 cumstances do give him such a clue he can rightfully assume 
 possession for the owner and a subsequent change of intent 
 and an appropriation of the property would not be a larceny, 
 but where he intends to appropriate it at the time he assumes 
 possession he is guilty of larceny, and none the less so if he 
 intends to return it in the event that a reward is given. 
 
 In larceny, as in other crimes, the evil intent and the act 
 must coexist; that is, as stated in the definition of larceny, 
 the taking and removing must be with the particular intent 
 described. 
 
 Where the original taking was wrongful, there a subsequent 
 felonious intent makes the offense larceny in all cases in which 
 there is concurrently with such intent, although subsequent to 
 the taking, a fraudulent conversion or transmutation of the 
 goods. Thus it has been held that where a man, driving away a 
 flock of lambs, negligently took a lamb belonging to a third 
 party, and then, upon subsequently finding out the fact of the 
 true ownership, fraudulently converted the lamb to his own 
 use, taking it from the rest of the flock, that this was larceny. 
 (Keg. v. Riley, 14 Eng. L. & Eq. Rep. 566; 6 Cox, C. C. 88.) 
 
 The felonious intent in larceny is that entertained by a 
 thief; i. e., a fraudulent intent to deprive the owner perma- 
 nently of his property in the goods or of their value or a part 
 of their value. Unless such a purpose exist with the taking 
 and carrying away there is no larceny. 
 
 428 
 
PUNITIVE ARTICLES OF WAR. ^f 443 
 
 Thus larceny is not committed where the taking was with- 
 out any intent at all as regards the property, as in the case 
 of property taken by mistake or accidentally; or where the 
 intent was to take one's own property, as in the case of prop- 
 erty taken under a bona fide claim of right, however un- 
 founded ; or where the intent was to take another's property 
 temporarily from his possession, as in the case of property 
 taken for a temporary use, or in fun, or out of curiosity, or 
 to keep for him, or to deprive him of the power of using it. 
 Thus if one takes a horse merely to enable him to escape with 
 stolen property, or takes property from a drunken friend in 
 order to prevent him from losing it, or taking a cudgel out 
 of the owner's hand to prevent a beating there is no larceny. 
 
 Whether the required intent exists where property is taken 
 to pawn or hold for a reward depends upon the circumstances. 
 Some cases of taking property to pledge would come within 
 the above rule as to temporary use, as where the intent is 
 in good faith to redeem and return it ; but in the absence of 
 such intent the taking is larceny. 
 
 Where the taking is with the design of returning it to the 
 owner, but in the hope of obtaining a reward, it is not lar- 
 ceny ; but if the purpose is to keep the property until a re- 
 ward is offered it is. Taking property with the intent to 
 sell it back to the owner or return it to him for some other 
 consideration is, of course, more indicative of than incon- 
 sistent with the existence of the required intent. Thus, steal- 
 ing a railroad ticket is none the less stealing because it was 
 intended to be returned to the railroad when made use of. 
 
 Once the goods are taken and removed with the felonious 
 intent above described the offense is complete and is none 
 the less a larceny because the thief may have had in mind a 
 disposition of the property without benefit or advantage to 
 himself. Thus, an intent to give it to another or to destroy 
 it out of revenge, or to prevent its use as evidence or other- 
 wise against himself or another, does not prevent the felon- 
 ious taking of another's property from being larceny. 
 
 In line with this principle it has been held that a servant 
 who clandestinely took his master's oats for the purpose of 
 feeding them to his master's horse was guilty of larceny. 
 
 420 
 
TJ 443 CHAPTER XVII. 
 
 When a larceny has been committed a prompt repentance 
 by the thief, followed by a return of the property or pay- 
 ment for it, is no defense. 
 
 Personal property only can be stolen. Thus, where trees, 
 fences, crops, or fixtures are cut down or severed by a tres- 
 passer and immediately taken away by him, there is no 
 larceny. But should the trespasser, after cutting down some 
 trees, for instance, leave the fallen timber and relinquish his 
 possession, the possession of the owner attaches to the prop- 
 erty in its new character as personal property, and a sub- 
 sequent taking by the trespasser with intent to steal is 
 larceny. 
 
 A piece of paper may be stolen, though its value is less 
 than that of the smallest coin. A promissory note, a bank 
 note, or a post-exchange check or other writing evidencing 
 a chose in action is, under section 287, Federal Penal Code, 
 supra, subject to theft and is to be deemed of the value of the 
 amount of money due thereon, or secured to be paid thereby and 
 remaining unsatisfied, or which in any contingency might be 
 collected thereon, or the value of the property the title to which 
 is shown thereby, or the sum which might be recovered in the 
 absence thereof. 
 
 PEOOF. 
 
 (a) The taking by the accused of the property as alleged. 
 
 (b) The carrying away by the accused of such property. 
 
 (c) That such property belonged to a certain other per- 
 son named or described. 
 
 (d) That such property was of the value alleged, or of 
 some value. 
 
 (e) The facts and circumstances of the case indicating 
 that the taking and carrying away were with a fraudulent 
 intent to deprive the owner permanently of his property or 
 interest in the goods or of their value or a part of their value. 
 
 VIII. EMBEZZLEMENT. 
 
 There is no section of the Federal Penal Code defining, for 
 general purposes, the crime of embezzlement. Therefore, courts- 
 martial will be governed by sections 834, 835, and 85 Ib of the 
 Code of the District of Columbia, which provide : 
 
 430 
 
FUGITIVE AKTICLES OF WAR. H 443 
 
 Sec. 834. Embezzlement by Agent, Attorney, Clerk, or Servant. 
 If any agent, attorney, clerk, or servant of a private person or co- 
 partnership, or any officer, attorney, t agent, clerk, or servant of any 
 association or incorporated company, shall wrongfully convert to 
 his own use, or fraudulently take, make way with, or secrete, with 
 intent to convert to his own use, anything of value which shall come 
 into his possession or under his care by virtue of his employment 
 or office, whether the thing so converted be the property of his 
 master or employer or that of any other person, copartnership, asso- 
 ciation, or corporation, he shall be deemed guilty of embezzlement, 
 and shall be punished by a fine not exceeding one thousand dollars 
 or imprisonment for not more than ten years, o* both. 
 
 Sec. 835. Embezzlement of Note Not Delivered. Every embezzle- 
 ment of any evidence of debt negotiable by delivery only, actually 
 executed by the master or employer of any such clerk, attorney, 
 agent, officer, or servant, but not delivered or issued as a valid in- 
 strument, shall be deemed an offense within the meaning of the last 
 preceding section. 
 
 Sec. 851b. That if any person intrusted with the possession of any- 
 thing of value, including things savoring of the realty, for the purpose 
 of applying the same for the use and benefit of the owner or person so 
 delivering it, shall fraudulently convert the same to his own use he 
 shall, where the value of the thing so converted is $35 or more, be 
 punished by imprisonment for not less than 1 nor more than 10 years, 
 or by a fine of not more than $1,000, or both; and where the value of 
 the thing so converted is less than $35 he shall be punished by im- 
 prisonment for not more than 1 year or by a fine of not more than 
 $500, or both: Provided, That nothing contained in this section shall 
 be construed to alter or repeal the foregoing sections contained in 
 Subchapter II .of Chapter XIX of this code. Act approved March 3, 
 1913 (37 Stat. 727.) 
 
 Embezzlement differs from larceny in that the original 
 taking of the property was lawful or with the consent 6f the 
 owner, while in larceny the felonious intent must have existed 
 at the time of the taking. (Cyc., vol. 15, p. 488.) 
 
 Embezzlement is not a common law but a statutory of- 
 fense. 
 
 The purpose of embezzlement statutes is to meet the case 
 of a servant, clerk, bailee, or other person to whom the pos- 
 session of property is intrusted by or for the owner, and who 
 misappropriates it to his own use or otherwise, the circum- 
 stances being such that the act is not larceny. 
 
 The gist of the offense is a breach of trust, and can not be 
 committed unless some fiduciary relationship exists between 
 the owner and the person in possession of the property and 
 
 21358 20 28 431 
 
^443 CHAPTER XVII. 
 
 unless such possession was taken by virtue of such relation- 
 ship. 
 
 PKOOF. 
 
 (a) That the accused was the clerk or servant of a certain 
 other person or stood in some other fiduciary relationship to 
 that person, as alleged. 
 
 (b) That in such fiduciary capacity the accused received 
 into his possession certain money or property of such per- 
 son, as alleged. 
 
 (c) That he fraudulently converted or appropriated to his 
 own use such money or property. 
 
 (d) The facts and circumstances showing that such conver- 
 sion or appropriation was with fraudulent intent. 
 
 NOTE 1. Section 905 of the Code of the District of Columbia pro- 
 vides: 
 
 " Sec. 905. The words ' anything of value,' wherever they occur in 
 this chapter, shall be held to include not only things possessing in- 
 trinsic value, but bank notes and other forms of paper money, and 
 commercial paper and other writings which represent value." 
 
 IX. PERJURY. 
 
 Section 125 of the Federal Penal Code of 1910 provides: 
 Whoever, having taken an oath before a competent tribunal, officer, 
 or person, in any case in which a law of the United States authorizes 
 aa oath to be administered, that he will testify, declare, depose, or 
 certify truly, or that any written testimony, declaration, deposition, 
 or certificate by him subscribed is true, shall willfully and contrary to 
 such oath state or subscribe any material matter which he does not 
 believe to be true, is guilty of perjury, and shall b fined not more 
 than two thousand dollars and imprisoned not more than five years. 
 
 The words "competent tribunal, officer, or person" do not 
 necessarily mean that the tribunal by which the oath is adminis- 
 tered shall have been created by the Government which required 
 it to be taken, nor that the officer who administers it shall be 
 an officer of that Government. But the statute means that the 
 oath must, at any rate, be permitted or required by some law of 
 the "United States, and be administered by some tribunal, officer, 
 or person authorized by a law of the United States to administer 
 oaths in respect of the particular matters to which it relates, 
 (United States v. Curtis, 107 U. S., 671, 673.) 
 
 432 
 
PUNITIVE ARTICLES OF "WAK. '[f 443 
 
 The usual and ordinary meaning: of the word "deposition" 
 is written testimony in legal proceedings. The words " declara- 
 tion " and " certificate " are used in the statute in the ordinary 
 and popular sense, and signify any statement of material mat- 
 ters of fact sworn to and signed by the party charged. (United 
 States v. Ambrose, 108 IT. S., 336, 340.) 
 
 To constitute perjury it is not sufficient that the oath taken 
 be false and untrue as to some material matter, but it must 
 further appear that the party knew at the time of taking the 
 oath that the same was false and untrue, or else that he swore 
 to his knowledge as of a fact, knowing that he had no such 
 knowledge. 
 
 Perjury may be committed either by swearing to a fact which 
 the witness knows is untrue or by swearing to his knowledge 
 of the fact when he knows that he has no such knowledge. So 
 also a witness may commit perjury in testifying falsely as to 
 his belief, remembrance, or impression, or as to his judgment or 
 opinion on matters of fact. Thus, where a witness swears that 
 he does not remember certain facts, when in fact he does, he 
 commits perjury, if the other elements of the offense are present. 
 So, also, where a witness testified that in his opinion a certain 
 person was drunk, when in fact he entertains the contrary 
 opinion. 
 
 It is not necessary that the proceeding in which the oath is 
 taken should be a judicial proceeding. (United States v. Eardi- 
 son, 135 Fed. Hep., 419, 423.) 
 
 Thus perjury is committed where a false oath is taken as to 
 a pension claim before a justice of the peace; where one inten- 
 tionally swears falsely in making return of his income, although 
 the statute imposing a tax upon income does not provide for 
 compulsory disclosure under oath; where one testifies falsely to 
 the credibility of a witness, such credibility being material; or 
 where one testifies that he has never been in prison, the fact 
 being otherwise ; and where statements which the deponent does 
 not, believe to be true are made on a justification as bail. Per- 
 jury committed at an examination before a United States com- 
 missioner, under an act of Congress, is within this section. (Ex 
 parte Bridges, Brown v. United States, 4 Fed. Gas., 99, 105.) 
 
^[ 443 CHAPTER XVII. 
 
 It is not perjury to testify by mistake to what is really be- 
 lieved to be true, however unfounded the belief may be; hence 
 a witness may contradict under oath testimony formally given 
 by him without committing perjury, since he may on such occa- 
 sion have believed his testimony to be true. 
 
 Where a form of oath has been prescribed, a literal follow- 
 ing of the statute is not essential. It is sufficient if the oath 
 administered conforms in substance to the statutory form. 
 
 An oath includes affirmation, where the latter is authorized 
 in lieu of an oath. 
 
 It is no defense that the witness voluntarily appeared, or 
 that he was an incompetent witness, or that his testimony 
 was given in response to questions that he could have de- 
 clined to answer, even if he was forced to answer it over his 
 claim of privilege. 
 
 It is a defense, however, if the tribunal or magistrate had 
 no jurisdiction of the cause in which the false testimony was 
 given. 
 
 The false testimony must be material to the issue or matter of 
 inquiry, but the issue or matter of inquiry may be a collateral 
 one. The issue may be proved by that part of the record of trial 
 showing the pleadings, or by a duly authenticated copy thereof, 
 or by a properly authenticated copy of the general court-martial 
 order promulgating the proceedings of such trial, or in case of 
 the loss or destruction of such evidence by secondary evidence 
 thereof. It is for the court to determine whether or not the 
 perjured testimony was in fact material to those issues properly 
 established. 
 
 To constitute perjury an oath must be taken under or required 
 by some law of the United States. A voluntary or extrajudicial 
 oath, though false, is not perjury ; neither is an oath taken under 
 a departmental regulation for the enforcement of the oleomar- 
 garine law (no statute authorizing it) ; but where the depart- 
 mental rules requiring the affidavit are in accord with the re- 
 quirements of a statute a false affidavit constitutes perjury. 
 (Van Gesner v. United States, 153 Fed. Rep., 46, 53.) 
 
 The authority of the officer who administers the oath upon 
 which perjury is predicated is sufficiently alleged by stating that 
 such officer was then and there a person having authority to 
 administer such oath. A notary public is authorized to admin- 
 
 434 
 
PUNITIVE ARTICLES OF WAR. ^[443 
 
 ister oaths in affidavits required by the Secretary of War under 
 the act of March 3, 1863, and false swearing in reference to facts 
 so required is perjury. (United States v. Sonachall, 27 Fed. Gas., 
 1259.) 
 
 The specification need not allege that the false oath was taken 
 deliberately and corruptly, or otherwise than as indicated by the 
 language of the statute. But the oath must be willfully taken. 
 (United States v. Edwards, 43 Fed. Rep., 67; United States v. 
 Lake, 129 Fed. Rep., 499, 502.) And the fact that the accused 
 was sworn must be distinctly stated. 
 
 There can be no conviction for perjury unless the false oath 
 or affidavit was taken, or made with a corrupt intent, and this 
 is a question for the jury. (United States v. Smith, 27 Fed. Cas., 
 1175, 1183.) 
 
 It is not necessary that the false affidavit should have been 
 used. (Noah v. United States, 128 Fed. Rep., 270, 272.) The 
 unsupported testimony of a single witness is insufficient to con- 
 vict. (United States v. Hall, 44 Fed. Rep., 864, 868.) But oral 
 evidence is unnecessary if the jury believes documentary evi- 
 dence. (United States v. Wood, 14 Pet., 430, 444.) 
 
 NOTE. For false swearing, see paragraph 446 II, infra, " False 
 swearing." 
 
 PROOF. 
 
 (a) That the accused took an oath in any of the cases pro- 
 vided in section 125, Federal Penal Code, 1910, as alleged in the 
 specification. 
 
 (b) That such oath was administered by a person having au- 
 thority to do so. 
 
 (c) That upon such oath accused testified, declared, deposed, 
 or certified as alleged. 
 
 (d) That such testimony, declaration, deposition, or certificate 
 was false and material to the inquiry as alleged. 
 
 (e) The facts and circumstances showing that such testimony, 
 declaration, deposition, or certificate was taken or made willfully 
 with a corrupt intent. 
 
 NOTE 2. Falsely certifying to a claim or document under the War 
 Eisk Insurance Act (sec. 25, as amended by the act of Oct. 6, 1917 (40 
 Stat. 402)), is not perjury within the meaning of that term as used 
 in the ninety-third article of war, but is chargeable under A. W. 96. 
 
 435 
 
^[ 443 CHAPTER XVII. 
 
 X. Forgery. 
 
 Forgery is not defined by the Federal Penal Code; but sec- 
 tion 843 of the Code of the District of Columbia provides: 
 
 Whoever, with intent to defraud or injure another, falsely makes 
 or alters any writing of a public or private nature, which might 
 operate to the prejudice of another, or passes, utters, or publishes, or 
 attempts to pass, utter, or publish as true and genuine, any paper so 
 falsely made or altered, knowing the same to be false or forged, with 
 the intent to defraud or prejudice the right of another, shall be im- 
 prisoned for not less than one year nor more than ten. 
 
 This statute will govern courts-martial, as to the definition 
 of this offense. 
 
 Some of the instruments that are subjects of forgery are 
 checks, indorsements, orders for the delivery of money or 
 goods, railroad tickets, and receipts. 
 
 A writing falsely made includes a false instrument that 
 is in part or entirely printed, engraved, written with a pencil, 
 or made by photography or other device. 
 
 A writing may be made falsely by filling in a paper signed 
 in blank, or by signing an instrument already written. 
 
 The writing must be false must purport to be what it 
 is not. 
 
 Thus, signing another's name to a check with intent to 
 defraud is forgery, as the instrument purports on its face to 
 be what it is not. But where, after the false signature of such 
 person is added the word by, and the signature of the person 
 making the check, thus indicating an authority to sign, the 
 offense is not forgery even if no such authority exists, as the 
 check on its face is what it purports to be. 
 
 Forgery may be committed by signing one's own name to 
 an instrument. Thus, where a check payable to the order 
 of a certain person comes into the hands of another of the 
 same name, he commits forgery, when, knowing the check 
 to be another's, he indorses it with his own name, intending 
 to defraud. 
 
 Forgery may also be committed by signing a fictitious 
 name, as where a person signs a check payable to himself with 
 a fictitious name ; but when he passes a check signed by him 
 with a fictitious name, credit being extended to him without 
 regard to his name, forgery is not committed. 
 
 436 
 
PUNITIVE ARTICLES OF WAR. ^f 443 
 
 To constitute a forgery the instrument must have apparent 
 legal efficacy. The fraudulent making of an instrument 
 affirmatively invalid on its face is not a forgery. But this 
 requirement does not ordinarily prevent the fraudulent mak- 
 ing of a signature on a check, for instance, from being a 
 forgery even if there be no resemblance to the genuine signa- 
 ture and the name is misspelled. 
 
 The false writing must be made with intent to defraud or 
 injure another. A person who signs another's name to an 
 instrument believing that he has authority to do so does not 
 commit a forgery. 
 
 It is immaterial, however, that anyone be actually de- 
 frauded or injured, or that no further step be made toward 
 carrying out the intent to defraud than the making of the 
 false writing. 
 
 Analysis and Proof. 
 
 Section 843 of the Code of the District of Columbia defines 
 four crimes: 
 
 I. Falsely making a writing. 
 
 II. Falsely altering a writing. 
 
 III. Uttering a paper falsely made or falsely altered. 
 
 IV. Attempting to utter a paper falsely made or falsely 
 altered. 
 
 PROOF. 
 I. Falsely Mkingr a Writing. 
 
 (a) That a certain writing was falsely made, as alleged in 
 the specification. (The instrument itself should be produced, if 
 available.) 
 
 (b) That such writing was of a nature which might operate 
 to the prejudice of another. (This will usually, but not always, 
 appear from the face of the paper itself.) 
 
 (c) That it was the accused who so falsely made it. 
 
 (d) The facts and circumstances of the case, as alleged in the 
 specification, indicating the intent of the accused thereby to 
 either, as the case may be, (1) defraud or (2) injure another 
 certain person. 
 
 IT. Falsely Altering: a Writing-. 
 
 (a) That a certain writing was falsely altered, as alleged in 
 the specification. (The instrument itself should be produced, if 
 available.) 
 
 437 
 
^[443 CHAPTER XVII. 
 
 (b) That such writing was of a nature which might operate 
 to the prejudice of another. (This will usually, hut not always, 
 appear from the face of the paper itself.) 
 
 (c) That it was the accused who so falsely altered it. 
 
 (d) The facts and circumstances of the case, as alleged in the 
 specification indicating the intent of the accused tKejeby to, as 
 the case may be, (1) defraud or (2) injure another certain 
 person. 
 
 III. Uttering a Paper Falsely Made or Falsely Altered. 
 
 (a) That, as alleged in the specification, a certain paper was 
 (1) falsely made or (2) falsely altered. (The instrument itself 
 should be produced, if available.) 
 
 (b) That such writing was of a nature which might operate 
 to the prejudice of another. (This will usually, but not always, 
 appear from the face of the paper itself.) 
 
 (c) That the accused, as alleged in the specification, passed or 
 uttered or published such paper as true and genuine. 
 
 (d) That the accused, when so doing, knew said paper to have 
 been falsely made or falsely altered as alleged in the specifi- 
 cation. 
 
 (e) The facts and circumstances of the case indicating the in- 
 tent of the accused in so doing to either (1) defraud or (2) preju- 
 dice the right of a certain other person, as alleged in the speci- 
 fication. 
 
 IV. Attempting: to Utter a Paper Falsely Made or Falsely Altered. 
 
 (a) That, as alleged in the specification, a certain paper was 
 (1) falsely made or (2) falsely altered. (The instrument itself 
 should be produced, if available.) 
 
 (b) That such writing was of a nature which might operate 
 to the prejudice of another. (This will usually, but not always, 
 appear from the face of the paper itself.) 
 
 (c) The facts and circumstances of the case showing that, as 
 alleged in the specification, the accused attempted to pass or utter 
 or publish such paper as true and genuine. 
 
 (d) That the accused, when so doing, knew said paper to have 
 been falsely made or falsely altered, as alleged in the specification. 
 
 (e) The facts and circumstances of the case indicating the in- 
 tent of the accused in so doing to either (1) defraud or (2) preju- 
 dice the right of a certain other person, as alleged in the speci- 
 fication. 
 
PUNITIVE AKTICLES OF WAR. ^f 443 
 
 XI. Sodomy. 
 
 Neither the Federal Penal Code nor the Code of the District of 
 Columbia defines sodomy. Courts-martial are therefore governed 
 by the common-law definition of this offense. 
 
 Sodomy at common law consists in sexual connection with 
 any brute animal, or in sexual connection, per anum, by a man 
 with any man or woman. (Wharton, vol. 1, p. 965.) 
 
 Penetration of the mouth of the person also constitutes this 
 offense. 
 
 Both parties are liable as principals if each is adult and 
 consents ; but if either be a boy of tender age the adult alone 
 is liable, and although the boy consent the act is still by force. 
 
 Penetration alone is sufficient. 
 
 An assault with intent to commit this offense consists of 
 an assault on a human being with intent to penetrate his or 
 her person per anum. 
 
 That which has been before stated, with regard to the evi- 
 dence and manner of proof in cases of rape, ought especially 
 to be observed upon a trial for this heinous offense. When 
 strictly and impartially proved the offense well merits strict 
 and impartial punishment ; but it is from its nature so easily 
 charged and the negative so difficult to be proved that the ac- 
 cusation ought clearly to be made out. The evidence should 
 be plain and satisfactory in proportion as the crime is detest- 
 able. 4 Bl. Com., 215 (Archbold's Criminal Practice and 
 Pleading, 8th ed., vol. 1, p. 1016.) 
 
 PROOF. 
 
 That the accused had sexual connection with a certain brute 
 animal, or had sexual connection per anum, or by the mouth, 
 with a certain man or woman, as the case may be, as alleged in 
 the specification. 
 
 XII. ASSAULT WITH INTENT TO COMMIT ANY FELONY. 
 
 An assault with intent to commit any felony is an assault 
 made with a specific intent to murder, rape, rob, or to commit 
 manslaughter, sodomy, or other common-law or statutory 
 felony. 
 
 439 
 
CHAPTER xvn. 
 
 An assault is an attempt or offer with unlawful force or 
 violence to do a corporal hurt to another. (Clark and Mar- 
 shall, p. 271.) 
 
 Raising a stick over another's head as if to strike him, pre- 
 senting a firearm ready for use within range of another, strik- 
 ing at another with a cane or fist, assuming a threatening atti- 
 tude and hurrying toward another, are examples of assaults. 
 
 Some overt act is necessary in any assault. Mere prepara- 
 tion, such as unfastening the catch on a pistol holster in order 
 that the pistol may be drawn, or picking up a stone at a con- 
 siderable distance from another without making any attempt 
 or offer to throw it, is not an assault. 
 
 The force or violence must be physical ; mere words, how- 
 ever threatening, or insulting gestures are not by themselves 
 sufficient to constitute an assault. 
 
 Furthermore, in an assault there must be an intent, actual 
 or apparent, to inflict corporal hurt on another. 
 
 Where the circumstances known to the person menaced 
 clearly negative such intent there is no assault. Thus, where 
 a person accompanies an apparent attempt to strike another 
 by an unequivocal announcement in some form of his inten- 
 tion not te strike, there is no assault. This principle was ap- 
 plied in a case where the defendant raised his whip and shook 
 it at the prosecutor within striking distance saying, " If you 
 weren't an old man, I would knock you down." 
 
 Viewed solely as an attempt to commit a battery there must 
 be an actual or constructive intent to do a corporal hurt to 
 another, and an act of unlawful violence or force begun to be 
 executed with a view to inflicting such hurt. How such pur- 
 pose is defeated is immaterial. 
 
 The following have been held to be assaults : Riding after a 
 person so as to compel him to seek safety in an inclosure to 
 avoid a beating, though the assailant was never near enough 
 to hit him; rushing upon another in a threatening attitude 
 although before quite close enough to strike, the person 
 threatened strikes in self-defense or the attack is frustrated 
 by a third person. 
 
 It is also an assault where the person in order to avert the 
 taking effect of the unlawful violence yields to a demand of 
 
 440 
 
PUNITIVE ARTICLES OF WAR. If 443 
 
 his assailant. Thus, where A, being within striking distance 
 of B, raises a weapon for the purpose of unlawfully striking 
 him, stating that he will strike unless B does a certain thing, 
 and B does that thing, thereby averting the blow, A commits 
 an assault. 
 
 It is not a defense to a charge of assault that for some 
 reason unknown to the assailant his attempt was bound to fail. 
 Thus, where a soldier loads his rifle with what he believes to 
 be a good cartridge and, pointing it at a person, pulls the 
 trigger, he is guilty of assault although the cartridge was so 
 defective that it could not be used. The same principle was 
 applied to a case where a person in a house shoots through 
 the roof at a place where he supposed a policeman was con- 
 cealed, though the policeman was at another place on the 
 roof. 
 
 The intent need not be to injure a particular person, and 
 mere recklessness may supply the place of intent. Thus, 
 where one strikes at A believing him to be B, he is guilty of 
 assaulting A ; and where one fires a loaded and capped pistol 
 at another recklessly, and not knowing or seeking to know 
 whether it is loaded or not, he commits an assault. 
 
 To constitute an assault, however, it is unnecessary that 
 there be an actual or constructive intent to hurt anyone or a 
 believed ability to inflict such hurt 
 
 If there be, to the person set upon, an apparent present in- 
 tent to injure, coupled with an apparent present ability to do 
 so, it is sufficient. 
 
 The better opinion, however, is to the effect that if a person 
 presents a gun at another, or threatens him with a stick or 
 other weapon, and thereby reasonably puts him in fear and 
 causes him to act on the defensive, or to retreat, there is an 
 assault, whether there is any actual intention to injure or not. 
 In a comparatively late Massachusetts case it was held that a 
 man who pointed an unloaded gun at another was guilty of 
 an assault, although he may have known that it was not 
 loaded and may have had no intention to injure. " It is not 
 the secret intent of the assaulting party," said the court, " nor 
 the undisclosed fact of his ability or inability to commit a 
 
 441 
 
If 443 CHAPTER XVII. 
 
 battery, that is material, but what his conduct and the attend- 
 ing circumstances denote at the time to the party assaulted. 
 If t him they indicate an attack, he is justified in resorting 
 to defensive action. The same rule applies to the proof neces- 
 sary to sustain a criminal complaint for an assault. It is the 
 outward demonstration that constitutes the mischief which is 
 punished as a breach of the peace." (Clark and Marshall, 
 pp. 277, 278.) 
 
 If there be such a demonstration of violence, coupled with 
 an apparent ability to inflict the injury, so as to cause the 
 person at whom it is directed reasonably to fear the injury 
 unless he retreat to secure his safety, and under such cir- 
 cumstances he is compelled to retreat to avoid any impending 
 danger, the assault is complete, though the assailant may 
 never have been within the actual striking distance of the 
 person assailed. (Clark and Marshal, p. 281, note.) 
 
 There must, however, be an apparent present ability. To 
 aim a pistol at a man at such a distance that it clearly could 
 not injure would not be an assault. 
 
 A battery is an assault in which force is applied, by ma- 
 terial agencies, to the person of aiiother, either mediately or 
 immediately. Thus, it is a battery to spit on another ; to push 
 a third person against him ; to set a dog at him which bites 
 him ; to cut his dress while he is wearing it, though without 
 touching or intending to touch his person ; to shoot him ; and 
 to cause him to take poison. So it is a battery for a man to 
 fondle against her will a woman not his wife. The force may 
 be applied through conductors more or less close. Thus, to 
 strike the dress of the person assailed, or the horse on which 
 he is riding, or the house in which he resides, may be as much 
 a battery as to strike his face ; and sending an explosive ma- 
 chine by express from New York to San Francisco may be as 
 much a battery as taking it to San Francisco in person. It 
 is not, however, a battery to lay hands on another to attract 
 his attention, or in a party falling to seize another for sup- 
 port. Sending a missile into a crowd also is a battery on any- 
 one whom the missile hits ; and so is the use, on the part of 
 one who is excused in using force, of more force than is 
 required. 
 
 442 
 
PUNITIVE ARTICLES OF WAR. ^f 443 
 
 1. ASSAULT WITH INTENT TO MUEDEB. 
 
 This is an assault aggravated by the eoncurrence of a 
 specific intent to murder ; in other words, it is an attempt to 
 murder. 
 
 As in other attempts there must be an overt act, beyond 
 mere preparation or threats, or an attempt to make an at- 
 tempt. 
 
 Thus, it was held not an assault with intent to murder 
 where the defendant drew a pistol from his hip pocket, but 
 because of its becoming caught in the lining of his coat, did 
 not make any actual attempt to inflict an injury with the 
 pistol on the person alleged to have been assaulted. 
 
 To constitute an assault with intent to murder by firearms 
 it is not necessary that the weapon be discharged ; and in no 
 case is the actual infliction of injury necessary. Thus, where 
 a man with intent to murder another deliberately assaults 
 him by shooting at him, the fact that he misses does not alter 
 the character of the offense. 
 
 Where the intent to murder exists, the fact that for some 
 reason unknown the actual consummation of the murder is 
 impossible by the means employed does not prevent the per- 
 son using them from being guilty of an assault with intent to 
 commit murder where the means are apparently adapted to 
 the end in view. Thus, where a soldier intending to murder 
 another loads his rifle with what he believed to be a good 
 cartridge and aims and discharges his rifle at the other, it is 
 no defense that he, by accident, got hold of a cartridge so 
 defectively loaded that the bullet did not leave the gun. 
 
 In order to constitute this offense the specific intent to 
 murder must exist, and the facts must be such that had 
 death been caused by the act the offense would have been 
 murder, but the converse of this latter proposition is not 
 always true, as a man may be guilty of murder without in- 
 tending to kill. Thus, where a workman recklessly throws 
 a heavy object from the roof of a building into a street where 
 he knows people are likely to be passing and thereby kills a 
 person, he may be guilty of murder ; but where the person is 
 merely injured, the offense of assault with intent to commit 
 murder is not committed. 
 
 443 
 
^[443 CHAPTER XVII. 
 
 To constitute this offense there must be a specific intent to 
 murder the person assaulted and this intent must exist at the 
 time of the assault. 
 
 A general felonious intent of a specific design to commit 
 another felony is not sufficient, and where a person is too 
 drunk to entertain the specific intent the offense is not 
 murder. But where the accused intending to murder A 
 shoots at and wounds B, mistaking him for A, he is guilty of 
 assaulting B with intent to murder him ; so also where a man 
 fires into a group with intent to murder some one he is 
 guilty of an assault with intent to murder each member of 
 the group. 
 
 2. ASSAULT WITH INTENT TO COMMIT MANSLAUGHTER. 
 
 This offense differs from assault with intent to murder in 
 the lack of the elements of malice necessary to constitute the 
 latter crime. 
 
 It is an attempt to take human life in a sudden heat of pas- 
 sion. 
 
 The specific intent to kill is necessary and the act must be 
 done under such circumstances that had death ensued the 
 offense would have been manslaughter. 
 
 What has been said under the head of assault with intent 
 to commit murder applies to the offense of assault with intent 
 to commit manslaughter. 
 
 3. ASSAULT WITH INTENT TO COMMIT RAPE. 
 
 This is an attempt to commit rape in which the overt act 
 amounts to an assault upon the woman intended to be rav- 
 ished. Indecent advances, importunities however earnest; 
 mere threats; and actual attempts to rape wherein the overt 
 act is not an assault do not amount to this offense. Thus, 
 where a man, intending to rape a woman, stealthily concealed 
 himself in her room to await a favorable opportunity to exe- 
 cute his design but was discovered and fled, it was held that 
 he was not guilty of an assault with intent to commit rape. 
 
 No actual touching is necessary. Thus where a man entered 
 a woman's room and got in the bed where she was and within 
 
 444 
 
PUNITIVE ARTICLES OF WAR. If 443 
 
 reach of her person for the purpose of raping her he commits 
 the offense, although he did not touch the woman. 
 
 This offense may be committed on a woman who is insane 
 or an imbecile, or while she is drugged or intoxicated, or 
 asleep, provided the offense would be rape if the purpose was 
 carried out. But an attempt to have connection with a woman 
 capable of consenting and whose consent thereto has been ob- 
 tained by fraud is not an assault with intent to commit rape. 
 
 1 hus an attempt to have connection with a woman who has 
 consented thereto in the belief that one personating her 
 husband is her husband can not be an assault with intent to 
 commit rape. 
 
 The intent to have carnal knowledge of the woman assaulted 
 by force and without her consent must exist and concur with 
 the assault. In other words, the man must intend to over- 
 come any resistance by force, actual or constructive, and 
 penetrate the woman's person. Any less intent will not suffice. 
 Thus where a man assaults a woman, his purpose being to 
 seduce her, the offense is not committed. 
 
 Once an assault with intent to commit rape is made, it is 
 no defense that the man voluntarily desisted or that the 
 woman yields her consent to the connection, so that no rape 
 is committed. 
 
 4. ASSAULT WITH INTENT TO ROB. 
 
 This is an attempt to commit robbery wherein the overt act 
 is an assault and the concurrent intent is forcibly to take and 
 carry away property of the person assaulted from his per- 
 son or in his presence by violence or putting him in fear. 
 
 The accused can not set up as a defense that he intended to 
 take only money and that the person he attempted to rob had 
 none. 
 
 5. Assault with Intent to Commit Sodomy. 
 
 For definition of sodomy, see Division XI of this paragraph, 
 " sodomy," supra. 
 
 For definition of assault, see supra, this Division XII of this 
 paragraph. 
 
 The assault must be against a human being, and must be with 
 the specific intent to commit sodomy. Any less intent, or differ- 
 
 445 
 
If 443 CHAPTER XVII. 
 
 cnt intent, will not suffice. (Compare, as to the requirements 
 of the intent, which must be proved, the preceding subdivision! 
 of this division of this paragraph.) 
 
 PEOOF. 
 
 (1) Assault with intent to murder: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (5) The facts and circumstances of the case indicating 
 the existence at the time of the assault of the specific intent 
 of the accused to kill such person and that the killing would 
 have been murder had death resulted. 
 
 NOTE. Both the specific intent and the malice may be inferred from 
 the deliberate use of a deadly weapon in a way calculated to cause 
 death, or from other deliberate acts of violence likely to result in death 
 or great bodily harm. 
 
 (2) Assault with intent to commit manslaughter: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (>) The facts and circumstances of the case indicating 
 the existence at the time of the assault of the specific intent 
 of the accused to kill such person and that the killing would 
 have been voluntary manslaughter had death resulted. 
 
 (3) Assault with intent to commit rape : 
 
 (a) That the accused assaulted a certain female, as speci- 
 fied. 
 
 (b) The facts and circumstances of the case indicating the 
 existence at the time of the assault of the intent of the accused 
 to penetrate the person of such female at all events by over- 
 coming any resistance on her part by actual or constructive 
 force; and the facts and circumstances indicating that the 
 offense of rape would have been committed had the accused 
 succeeded in carrying out his purpose. 
 
 (4) Assault with intent to rob: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (b) The facts and circumstances of the case indicating the 
 existence at the time of the assault of the intent on the part 
 of the accused forcibly to steal property of such person from 
 his person or in his presence by violence or putting him in 
 fear. 
 
 446 
 
PUNITIVE ARTICLES OF WAR. ^f 443 
 
 (5) Assault with intent to commit sodomy: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (b) The facts and circumstances of the case indicating the 
 concurrent intent to commit the offense on such person. 
 
 XIII. Assault with intent to do bodily harm with a dangerous 
 weapon, instrument, or other thing. 
 
 The offense denounced in this article as an assault with intent 
 to do bodily harm with a dangerous weapon, instrument, or other 
 thing was, by Congress, meant to describe the offense of that 
 nature, denounced in section 276, Federal Penal Code of 1910, as 
 follows : 
 
 Whoever, with intent to do bodily harm, and without just cause or 
 excuse, shall assault another with a dangerous weapon, instrument, 
 or other thing- shall be fined not more than one thousand dollars 
 or imprisoned not more than five years, or both. 
 
 Weapons, etc., are dangerous when they are used in such a 
 manner that they are likely to produce death or great bodily 
 harm. Mere capability of being so used is not enough. 
 
 Boiling water may be so used as to be a dangerous thing, and 
 a pistol may be so used as not to be a dangerous weapon. 
 
 PROOF. 
 
 (a) That the accused assaulted a certain person with a certain 
 weapon, instrument, or thing. 
 
 (b) The facts and circumstances of the case indicating that 
 such weapon, instrument, or thing was used in a manner likely to 
 produce death or great bodily harm. 
 
 (c) The facts and circumstances of the case indicating that 
 the assault was without just cause or excuse. 
 
 XIV. ASSAULT WITH INTENT TO DO BODILY HARM. 
 
 This is an assault aggravated by the specific present intent 
 to do bodily harm to the person assaulted by means of the 
 force employed. 
 
 It is not necessary that any battery actually ensue, or, if 
 bodily harm is actually inflicted, that it be of the kind 
 intended. Where the accused acts in reckless disregard for 
 the safety of others it is not a defense that he did not have 
 in mind the particular person injured. 
 
 21358 20 29 
 
 447 
 
If 444 CHAPTEB xvru 
 
 PEOOF. 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (&) The facts and circumstances of the case indicating the 
 
 concurrent intent thereby to do bodily harm to such person. 
 
 444. Ninety -fourth Article of War: 
 
 [1] Any person subject to military law who makes or causes to be 
 made any claim ngjiinst the United States, or any officer thereof, 
 knowing; such claim to be false or fraudulent; or 
 
 [2] "Who presents or causes to be presented to any person in 
 the civil or military service thereof, for approval or payment, 
 any claim against the United States, or any officer thereof, know- 
 ing? such claim to be false or fraudulent; or 
 
 [3] Who enters into any agreement or conspiracy to defraud 
 the United States by obtaining:, or aiding; others to obtain, the 
 allowance or payment of any false or fraudulent claim; or 
 
 [4] Who, for the purpose of obtaining, or aiding; others to 
 obtain, the approval, allowance, or payment of a-ny claim 
 against the United States or against any officer thereof, makes 
 or uses, or procures, or advises the making; or use of, any writ- 
 ing: or other paper, knowing; the same to contain any false or 
 fraudulent statements; or 
 
 [5] Who, for the purpose of obtaining, or aiding* others to 
 obtain, the approval, allowance, or payment of any claim 
 agrainst the United States or any officer thereof, makes or pro- 
 cures, or advises the making; of, any oath to any fact or to any 
 writing: or other paper knowing: such oath to be false; or 
 
 [6] Who, for the purpose of obtaining:, or aiding; others to 
 obtain, the approval, allowance, or payment of any claim 
 against the United States or any officer thereof, forges or coun- 
 terfeits, or procures, or advises the forging: or counterfeiting: of 
 any signature upon any writing: or other paper, or uses, or pro- 
 cures, or advises the use of any such signature, knowing; the 
 same to be forged or counterfeited; or 
 
 [7] Who, having: charge, possession, custody, or control of any 
 money or other property of the United States, furnished or in- 
 tended for the military service thereof, knowingly delivers, or 
 causes to be delivered, to any person having authority to receive 
 the same, any amount thereof less than that for which he re- 
 ceives a certificate or receipt; or 
 
 [8] Who, being authorized to make or deliver any paper cer- 
 tifying the receipt of any property of the United States furnished 
 or intended for the military service thereof, makes or delivers 
 to any person such writing, without having full knowledge of 
 the truth of the statements therein contained and with intent to 
 defraud the United States; or 
 
 [9] Who steals, embezzles; knowingly and willfully misappro- 
 priates, applies to his own use or benefit, or wrongfully or 
 knowingly sells or disposes of any ordnance, arms, equipments, 
 HIII munition, clothing, subsistence stores, money, or other prop- 
 erty of the United States furnished or intended for the military 
 service thereof; or 
 
 [1O] Who knowingly purchases or receives in pledge for any 
 obligation or indebtedness from any soldier, officer, or other 
 person who Is a part of or employed 1m said force* or aerviee. 
 
 448 
 
PUNITIVE ARTICLES OF WAR. If 444 
 
 any ordnance, arms, equipment, ammunition, clothing:, srbsist- 
 ence stores, or other property of the United States, such soldier, 
 nicer, or other person not having: lawful right to sell or pledge 
 the same: 
 
 Shall, on conviction thereof, he punished hy fine or imprison- 
 ment, or by snch other punishment as a coiirt-martial may ad- 
 judge, or by any or all of said* penalties. And if any person, 
 being: guilty of any of the offenses aforesaid while in the mili- 
 tary service of the United States, receives his discharge or is 
 dismissed from the service, he shall continne to be liable to be 
 arrested and held for trial and sentence by a court-martial in 
 the same manner and to the same extent as if he had not 
 received such discharge nor been dismissed. 
 
 [11] And if any officer, being guilty, while in the military service 
 f the United States, of embezzlement of ration savings, post ex- 
 ciiange, company, or other like funds, or of embezzlement of 
 money or other property intrnsted to his charge by an enlisted 
 man or men, receives his discharge, or is dismissed, or is dropped 
 from the rolls, he shall continue to be liable to be arrested and 
 held for trial and sentence by a court-martial in the same man- 
 ner and to the same extent as if he had not been so discharged, 
 dismissed, or dropped from the rolls. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See the respective headings under which the offenses de- 
 fined by this article are treated below. 
 
 ANALYSIS AND PROOF. 
 
 The article applies to any person subject to military law, 
 except that the last sentence is applicable solely to an officer who 
 has been in the military service of the TJnited States. See ar- 
 ticle 2. 
 
 The article embraces a large number of offenses which may 
 be treated under headings, corresponding to the paragraphs 
 of the article, as follows : 
 
 I. Making or causing to be made a false or fraudulent 
 claim. 
 
 II. Presenting or causing to be presented for approval or 
 payment a false or fraudulent claim. 
 
 III. Entering into an agreement or conspiracy to defraud 
 the United States through false claims. 
 
 IV. Making, using, procuring, or advising the making or 
 use of a false writing or other paper in connection with 
 claims. 
 
 449 
 
TJ 444 CHAPTER XVII. 
 
 V. False oath in connection with claims. 
 
 VI. Forgery, etc., of signature in connection with claims. 
 
 VII. Delivering less than amount called for by receipt. 
 
 VIII. Making or delivering receipt without having knowl- 
 edge that the same is true. 
 
 . IX. Embezzlement, misappropriation, sale, etc., of mili- 
 tary property. 
 
 X. Purchasing or receiving in pledge of military property. 
 
 XI. Former officer guilty, while he was in service, of embezzle- 
 ment of ration savings, post exchange, company, or other like 
 funds, or of money or other property entrusted to him by enlisted 
 man. 
 
 I. MAKING OR CAUSING TO BE 'MADE A FALSE OR FRAUDULENT 
 
 CLAIM. 
 
 Making a claim is a distinct act from presenting it. A 
 claim may be made in one place and presented in another. 
 This section does not relate to personal claims against an 
 officer of the United States, but to claims against the United 
 States made to such officer or otherwise. It is not necessary 
 that the claim be allowed or paid nor that it be made by the 
 person to be benefited by the allowance or payment. The 
 claim must be made or caused to be made with knowledge of 
 its fictitious or dishonest character. This does not include 
 claims, however groundless they may be, that are honestly be- 
 lieved by the maker to be valid, nor claims that are merely 
 made negligently or without ordinary prudence, but it does 
 include claims made by a person who has the belief of the 
 false character of the claim that the ordinarily prudent man 
 would have entertained under the circumstances. (See also 
 the discussion under " II " of this article.) 
 
 An instance of making a false claim would be where an 
 officer having a claim respecting property lost in the military 
 service knowingly includes articles that were not in fact lost 
 and submits such claim to his commanding officer for the 
 action of the board. 
 
 450 
 
PUNITIVE ARTICLES OF WAK, ^f 444 
 
 PHOOF. 
 
 (ct) That the accused made or caused to be made a certain 
 claim against the United States, as alleged. 
 
 (b) That such claim was false or fraudulent in the par- 
 ticulars specified. 
 
 (c) That when the accused made the claim or caused it to 
 be made he knew that it was false or fraudulent in such par- 
 ticulars. 
 
 (d) The amount involved, as alleged. 
 
 II. PRESENTING OR CAUSING TO BE PRESENTED FOR APPROVAL OR 
 PAYMENT A FALSE OR FRAUDULENT CLAIM. 
 
 See second paragraph of the article and matter under head- 
 *ig "I." 
 
 The claim must be presented to some person having au- 
 thority to approve or pay it. False and fraudulent claims 
 include not only those containing some material false state- 
 ment, but also claims that the person presenting knows to 
 have been paid, or for some other reason knows he is not au- 
 thorized to present or receive money on. 
 
 Where an officer knows that a certain duly assigned pay 
 account of his is outstanding and that the assignee can collect 
 on it if he chooses to do so, it is no defense to a charge against 
 such officer of presenting for payment a second account cov- 
 ering the same period as the assigned account, that the second 
 account was presented relying on the assignee's statement 
 that he would not present the first. But where the accused 
 has good grounds to believe and actually does believe when 
 he presents the second account that the assigned account had 
 been canceled or surrendered by the assignee, his presentation 
 of the second claim does not constitute this offense. A can- 
 cellation or surrender of the first account after the presenta- 
 tion of the second account is, of course, no defense to the 
 charge. 
 
 Presenting to a paymaster a false final statement, knowing 
 it to be false, is an example of an offense under this para- 
 graph. 
 
 451 
 
^[ 444 CHAPTER XVII. 
 
 PROOF. 
 
 (a) That the accused presented or caused to be presented 
 for approval or payment to a certain person in the civil or 
 military service of the United States a certain claim against 
 the United States, as alleged. 
 
 (b) That such claim was false or fraudulent in the par- 
 ticulars alleged. 
 
 (c) That when the accused presented the claim or caused 
 it to be presented he knew it was fictitious or dishonest in 
 such particulars. 
 
 (d) The amount involved, as alleged. 
 
 III. ENTERING INTO AN AGREEMENT OR CONSPIRACY TO DEFRAUD 
 TIIE UNITED STATES THROUGH FALSE CLAIMS. 
 
 See the third paragraph of this article. 
 
 A conspiracy is the corrupt agreeing together of two or 
 more persons to do by concerted action something unlawful 
 either as a means or an end. (Bishop, vol. 2, p. 98.) 
 
 The mere entry into a corrupt agreement for the purpose 
 of defrauding the United States through any of the means 
 specified constitutes the offense. An example of this offense 
 is an agreement between a contractor and an officer to de- 
 fraud the United States by means of a padded voucher to be 
 certified as correct by the officer. 
 
 PEOOF. 
 
 (a) That the accused and one or more other persons 
 named or described entered into an agreement. 
 
 () That the object of the agreement was to defraud the 
 United States. 
 
 (c) That the means by which the fraud was to be effected 
 were to obtain or assist certain other persons to obtain the 
 allowance or payment of a certain false or fraudulent claim, 
 as specified. 
 
 (d) The amount involved, as alleged. 
 
PUNITIVE AETICLES OF WAR. ^ 444 
 
 IV, MAKING, USING, PROCURING, OR ADVISING THE MAKING OR 
 USE OF A FALSE WRITING .OR OTHER PAPER IN CONNECTION WITH 
 CLAIMS. 
 
 See the fourth paragraph of the article, and matter under 
 headings "I" and "II." 
 
 It is not necessary to the offense of making a writing know- 
 ing it to contain false or fraudulent statements that such 
 writing be used or attempted to be used, or that the claim in 
 support of which it was made be presented for approval, al- 
 lowance, or payment. The false or fraudulent statement 
 should, however, be material. 
 
 In the offense of procuring the making or use of the writing 
 or other paper, the paper must be made or used ; but in the 
 offense of advising such acts the making or use of the paper 
 is not necessary. Examples of offenses under this paragraph 
 are : Willfully inducing another to make to the United Stales 
 a lease of premises containing a false and fraudulent state- 
 ment with a view of obtaining the allowance of a false claim 
 for rent against the United States ; falsification by a soldier 
 of an entry in the company clothing book for the purpose 
 described in this paragraph of the article; and the making 
 by an officer in his pay account of false and fraudulent state- 
 ments with a view to securing the payment of such account. 
 
 PEOOF. 
 
 (a) That the accused made or used or procured or advised 
 the making or use of a certain writing or other paper, as 
 alleged. 
 
 (b) That certain statements in such writing or other 
 papers were false or fraudulent, as alleged. 
 
 (c) That the accused knew this. 
 
 (d) The facts and circumstances indicating that the act 
 of the accused was for the purpose of obtaining or aiding 
 certain others to obtain the approval, allowance, or payment 
 of a certain claim or claims against the United States, as 
 specified. 
 
 (e) The amount involved, as alleged. 
 
^f 444 CHAPTER XVII. 
 
 V. FALSE OATH IN CONNECTION WITH CLAIMS. 
 
 See the fifth paragraph of the article and matter under 
 headings "I," "II," and "IV." 
 
 PKOOF. 
 
 (a) That the accused made or procured or advised the 
 making of an oath to a certain fact or to a certain writing 
 or other paper, as alleged. 
 
 (b) That such oath was false, as alleged. 
 
 (c) That the accused knew it was false. 
 
 (d) The facts and circumstances of the case indicating 
 that the act was for the purpose of obtaining or aiding certain 
 others to obtain the approval, allowance, or payment of a 
 certain claim or claims against the United States, as alleged. 
 
 VI. FORGERY, ETC., OF SIGNATURE IN CONNECTION WITH CLAIMS. 
 
 See the sixth paragraph of the article and matter under 
 headings " I " and " II " above. 
 
 The term " forges or counterfeits " includes any fraudu- 
 lent making of another's signature, whether an attempt is 
 made to imitate the handwriting or not. 
 
 PKOOF. 
 
 (a) That the accused forged or counterfeited the signature 
 of a certain person on a certain writing or other paper or 
 that he procured or advised the act as specified; or that he 
 used the forged or counterfeited signature of a certain person 
 or procured or advised its use, knowing such signature to be 
 forged or counterfeited, as alleged. 
 
 (&) The facts and circumstances of the case indicating 
 that his act was for the purpose of obtaining or aiding cer- 
 tain others to obtain the approval, allowance, or payment of 
 a certain claim or claims against the United States, as alleged. 
 
 VII. DELIVERING LESS THAN AMOUNT CALLED FOR BY RECEIPT. 
 
 See the seventh paragraph of the article. 
 
 It is immaterial in this offense by what means, whether by 
 deceit, collusion, or otherwise, the accused effected the trans- 
 action, or what his purpose was in so doing. 
 
 454 
 
PUNITIVE ARTICLES OF WAR. ^f 444 
 
 Instances of this offense are : 
 
 A contractor gave a receipt for a greater amount than was 
 due him from the United States. Thereupon the disbursing 
 officer gave him the full amount called for by the receipt, but 
 received back from the contractor the excess over the amount 
 actually due. 
 
 A disbursing officer, having delivered to a creditor of the 
 United States less money than was actually due, received a 
 receipt signed in blank by the creditor, which he afterwards 
 completed by writing the true amount due. 
 
 PROOF. 
 
 (a) That the accused had charge, possession, custody, or 
 control of certain money or property of the United States 
 furnished or, intended for the military service thereof, as al- 
 leged. 
 
 (b) That he obtained a receipt for a certain amount or 
 quantity of such money or property, as alleged. 
 
 (c) That for such -receipt he knowingly delivered, or 
 caused to be delivered, to a certain person having authority to 
 receive it an amount or quantity of such money or property 
 less than the amount or quantity thereof specified in such re- 
 ceipt. 
 
 (d) The value of the undelivered money or property, as 
 alleged. 
 
 VIII. MAKING OR DELIVERING RECEIPT WITHOUT HAVING FULL 
 KNOWLEDGE THAT THE SAME IS TRUE. 
 
 See the eighth paragraph of the article. 
 
 Where, for instance, an officer, or other person subject to mili- 
 tary law, is authorized to make or deliver any paper certifying 
 the receipt of any property of the United States furnished or in- 
 tended for the military service thereof, and a receipt or other 
 paper is presented to him for signature, stating that a certain 
 amount of supplies has been furnished by a certain contractor, 
 it becomes his imperative duty before signing the paper to have 
 full knowledge that the full amount of supplies therein stated 
 to have been furnished has in effect been furnished, and that the 
 statements contained in the paper are true. If he signs the 
 
 455 
 
If 444 CHAPTER XVII. 
 
 paper without such full knowledge, then he is guilty of a viola- 
 tion of this clause of the article, whether or not he knows or 
 has reason to know that the statements in the paper are untrue, 
 since it is his duty to know that they are true before signing it. 
 If in fact he knows that a less amount of supplies has actually 
 been furnished than the amount stated in the receipt, then of 
 course such definite knowledge of the falsity of the paper makes 
 it impossible for him to have full knowledge that the amount 
 stated in the receipt to have been furnished is true, and there- 
 fore makes him guilty of a violation of this clause of the article ; 
 but he is equally guilty under this clause if in fact he does not 
 know whether or not the statement in the paper is true and signs 
 it without first taking the necessary steps to procure full knowl- 
 edge on the subject and without actually having full knowledge 
 that it is true. If he fails in that duty, and signs the paper 
 without taking the proper steps to procure knowledge of the 
 facts, his action in so signing without full knowledge of the facts 
 will be deemed prima facie evidence of an intent to defraud the 
 United States, and the burden of proof is on him to show, if he 
 can, that he did not in fact have such intent, if it turns out 
 afterwards that the paper was in fact false. 
 
 PROOF. 
 
 (a) That the accused was authorized to make or deliver 
 a certificate of the receipt from a certain person of certain 
 property of the United States furnished or intended for the 
 military service thereof, as alleged. 
 
 (>) That he made or delivered to such person such cer- 
 tificate, as alleged. 
 
 (c) That such certificate was made or delivered without 
 the accused having full knowledge of the truth of a certain 
 material statement or statements therein. 
 
 (d) The facts and circumstances indicating that his act 
 was done with intent to defraud the United States. 
 
 (e) The amount involved, as alleged. 
 
 IX. EMBEZZLEMENT, MISAPPROPRIATION, SALE, ETC., OF MILITARY 
 
 PROPERTY. 
 
 For definitions and principles respecting larceny and em- 
 bezzlement, see headings "VII" and "VIII" under the 
 ninety- third article. 
 
 456 
 
PUNITIVE ARTICLES OF WAR. ^f 444 
 
 Misappropriating is devoting to any unauthorized purpose. 
 The misapplication meant is where such purpose is for the 
 party's own use or benefit. 
 
 For the definition of " disposes of," see heading " I " under 
 the eightieth article. 
 
 The larceny, embezzlement, etc., must be of the particular 
 kind of property mentioned in the article. Post exchange 
 and company funds and money appropriated for other than 
 the military service do not come within the description 
 " money of the United States furnished or intended for the 
 military service thereof." The term " embezzlement " as used 
 in this article does not include acts or omissions not within 
 the definition of embezzlement under sections 834 and 835, or 
 851b, of tlie Code of the District of Columbia (see " Embezzlement, 
 Division VIII, par. 443, supra), but which may be expressly de- 
 clared by some other special statute to be embezzlements. 
 Such other statutory embezzlements are chargeable, however, 
 under the ninety-sixth article. 
 
 The misappropriation of the property or money need not 
 be for the benefit of the accused ; the words " to his own use 
 or benefit " qualify the word " applies " only. 
 
 Instances of misappropriation are: 
 
 An officer of the Quartermaster's Department used teams, 
 tools, and other public property in his possession as such 
 officer in erecting buildings, etc., for the beneft of an associa- 
 tion composed mainly of civilians, of which he was a member. 
 
 An officer of the Quartermaster's Department loaned public 
 property (corn) to a contractor for the purpose of enabling 
 him to fill a contract made with the United States through 
 another officer. 
 
 An instance of misapplication is the temporary use by a 
 quartermaster of Government horses in his charge to draw 
 hie private carriage on nonpublic business. 
 
 PBOOF. 
 
 In larceny and embezzlement : 
 
 (a) See proof under headings " VII " and " VIII " under 
 the ninety-third article. 
 
 (>) That the property belonged to the United States and 
 that it was furnished or intended for the military service 
 thereof. 
 
 457 
 
^f 444 CHAPTER XVII. 
 
 In misappropriation and misapplication: 
 
 (a) That the accused misappropriated or applied to his 
 own use certain property in the manner alleged. 
 
 (&) That such property belonged to the United States 
 and that it was furnished or intended for the military serv- 
 ice thereof. 
 
 (c) The facts and circumstances of the case indicating that 
 the act of the accused was willfully and knowingly done. 
 
 (d) The value of the property, as specified. 
 
 X. PURCHASING OR RECEIVING IN PLEDGE OF MILITARY PROPERTY. 
 
 See the tenth paragraph of the article and matter under 
 fifty-ninth article. 
 
 To constitute this offense the accused must know not only 
 (1) that the person selling or pawning the property was in 
 one of the specified classes and (2) that the property was the 
 property of the United States, but also (3) that the person so 
 selling x>r pawning it had no lawful right so to do. 
 
 As to " knowingly " see " Definitions and principles " under 
 fifty-fifth article. 
 
 PROOF. 
 
 (a) That the accused purchased, or received in pledge, 
 for a certain obligation or indebtedness certain military prop- 
 erty of the United States, as alleged, knowing it to be such 
 property. 
 
 (b) That such property was purchased or so received in 
 pledge from a certain soldier, officer, or other person who 
 was a part of or employed in the military service of the 
 United States, as alleged, and that the accused knew the 
 person selling or pledging the property to be such soldier, 
 officer, or other person. 
 
 (c) That such soldier, officer, or other person had not the 
 lawful right to sell or pledge such property. 
 
 (d) That the accused knew, at the time of such lack of lawful 
 right in such soldier, officer, or other person, to so sell or pledge 
 such property. 
 
 (e) The value of the property, as alleged.' 
 
 458 
 
PUNITIVE ARTICLES OF WAR. ^f 445 
 
 XI. Former officer guilty, while he was in service, of embezzlement of 
 ration savings, post exchange, company, or other like funds, or of 
 money or other property entrusted to him by enlisted men. 
 
 See the last sentence of the article and see also " Embezzle- 
 ment," Division VIII, paragraph 443, supra, and also Division IX 
 of this paragraph, supra. No one can be tried under this paragraph 
 of the article except a person who was formerly an officer of the 
 Army and who has been discharged, dismissed, or dropped from 
 the rolls, and for one of the offenses mentioned in this paragraph, 
 committed while the accused was in the military service of the 
 United States, and within the limitation of time fixed by the 
 thirty-ninth article of war, that is to say, committed within 
 three years before arraignment. 
 
 PROOF. 
 
 (a) That the accused was formerly an officer of the Army of 
 the United States. 
 
 (b) That the accused has received his discharge from the 
 Army or has been dismissed or dropped from the rolls. 
 
 (c) That the accused, while in the military service of the 
 United States, was guilty, as alleged in the specification, of em- 
 bezzlement of (1) ration savings, (2) post exchange funds, (3) 
 company funds, (4) other like funds, or (5) of money or other 
 property entrusted to his charge by an enlisted man or men. 
 (For proof of embezzlement see under " Embezzlement," supra, 
 Division VIII, par. 443.) 
 
 445. Ninety-fifth Article of War: 
 
 Any officer or cadet who is convicted of conduct unbecoming an 
 officer and a gentleman shall be dismissed from the service. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The conduct contemplated is action or behavior in an of- 
 ficial capacity which, in dishonoring or disgracing the in- 
 dividual as an officer, seriously compromises his character 
 and standing as a gentleman, or action or behavior in an un- 
 official or private capacity which, in dishonoring or disgrac- 
 ing the individual personally as a gentleman, seriously 
 compromises his position as an officer and exhibits him as 
 
 459 
 
^[445 CHAPTER XVII. 
 
 morally unworthy to remain a member of the honorable pro- 
 fession of arms. (Winthrop, p. 1106.) 
 
 There are certain moral attributes common to the ideal of- 
 ficer and the perfect gentleman, a lack of which is indicated 
 by acts of dishonesty or unfair dealing ; of indecency or in- 
 decorum; or lawlessness, injustice, or cruelty. 
 
 Not every one is or can be expected to meet ideal stand- 
 ards or to possess the attributes in the exact degree demanded 
 by the standards of his own time; but there is a limit of 
 tolerance below which the individual standards in these re- 
 spects of an officer or cadet can not fall without his being 
 morally unfit to be an officer or cadet or to be considered a 
 gentleman. 
 
 This article contemplates such conduct by an officer or 
 cadet which, taking all the circumstances into consideration, 
 satisfactorily shows such moral unfitness. 
 
 This article includes acts made punishable by any other 
 article of war, provided such acts amount to conduct unbe- 
 coming an officer and a gentleman ; thus, an officer who em- 
 bezzles military property violates both this and the preced- 
 ing article. 
 
 Instances of violation of this article are : 
 
 Knowingly making a false official statement ; dishonorable 
 neglect to pay debts ; opening and reading another's letters ; 
 giving a check on a bank where there were no funds to meet 
 it, and without intending that there should be ; using insult- 
 ing or defamatory language to another officer in his presence, 
 or about him to other military persons ; being grossly drunk 
 and conspicuously disorderly in a public place ; public asso- 
 ciation with notorious prostitutes; cruel treatment of sol- 
 diers ; committing or attempting to commit a crime involving 
 moral turpitude ; failing without a good cause to support his 
 family. 
 
 For other instances, see Digest, pages 140-143, and Win- 
 throp, pages 1107-1115. 
 
 ANALYSIS AND PROOF. 
 
 This article applies to officers and cadets only. 
 The article defines one offense, viz: 
 
PUNITIVE ARTICLES OF WAR. ^[446 
 
 I. CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN. 
 
 PROOF. 
 
 (a) That the accused did or omitted to do the acts as 
 alleged. 
 
 (b) The circumstances, intent, motive, etc., as specified. 
 
 446. Ninety-sixth Article of War. 
 
 not mentioned in these articles, all disorders and neglects 
 to the prejudice of good order and military discipline, all conduct of 
 a nature to bring discredit upon the military service, and ail crimes 
 or offenses not capital, of which persons subject to military law may 
 he guilty, shall be taken cognizance of by a general or special or 
 summary court-martial, according to the Mature and degree of the 
 offense, and punished at the discretion of such court. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 See matter under the respective headings under which the 
 offenses are treated. 
 
 ANALTSIS AND PROOF. 
 
 The article applies to any person subject to military law. 
 See article 2. The article embraces offenses falling within the 
 classes described therein, and not mentioned in the other 
 punitive articles. The offenses may be treated under the fol- 
 lowing headings: 
 
 I. Disorders and neglects to the prejudice of good order 
 and military discipline. 
 
 II. Conduct of a nature to bring discredit upon the** mili- 
 tary service. 
 
 III. Crimes or offenses not capital. 
 
 I. DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER 
 AND MILITARY DISCIPLINE. 
 
 The disorders and neglects include all acts or omissions 
 to the prejudice of good order and military discipline not 
 made punishable by any of the preceding articles. 
 
 By the term "to the prejudice," etc., is to be understood 
 directly prejudicial, not indirectly or remotely merely. An 
 irregular or improper act pn the part of an officer or soldier 
 
 4G1 
 
If 446 CHAPTER XVIJ. 
 
 can scarcely be conceived which may not be regarded as in 
 some indirect or remote sense prejudicing military dis- 
 cipline ; but it is hardly to be supposed that the article con- 
 templated such distant effects, and the same is, therefore, 
 deemed properly to be confined to cases in which the preju- 
 dice is reasonably direct and palpable. (Winthrop, p. 1123.) 
 
 Instances of such disorders and neglects in the case of 
 officers are : Disobedience of standing orders, or of the orders 
 of an officer when the offense is not chargeable under a spe- 
 cific article; allowing a soldier to go on duty knowing him 
 to be drunk; rendering himself unfit for duty by excessive 
 use of intoxicants or drugs; drunkenness. 
 
 Instances of such disorders and neglects in the cases of 
 enlisted men are : Failing to appear on duty with a proper 
 uniform ; appearing with dirty clothing ; malingering ; abus- 
 ing public animals ; refusing to submit to treatment necessary 
 to render him fit for duty ; refusing to submit to a necessary 
 and proper operation not endangering life (see par. 53, C. of 
 O., 1881-1915) ; careless discharge of firearms; personating 
 an officer; making false statements to an officer in regard to 
 matters of duty. 
 
 PEOOF. 
 
 (a) That the accused did or failed to do the acts alleged. 
 
 (b) The circumstances, intent, etc., as specified. 
 
 II. CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE 
 MILITAY SERVICE. 
 
 Instances of such conduct on the part of persons subject to 
 military law are unlawful violations of local State statutes (not 
 enacted by authority of any law of the United States), or mu- 
 nicipal ordinances or regulations, or of the laws of friendly 
 foreign countries; or where they are guilty of any other dis- 
 creditable conduct not made punishable by any specific articles, 
 or by the other parts of the ninety-sixth (the general) article. 
 
 " Discredit," as here used, means to injure the reputation of. 
 
 Another principal object of including this phrase in the 
 general article was to make military offenses those acts or 
 omissions of retired soldiers which were not elsewhere made 
 
 462 
 
PUNITIVE ARTICLES OF WAR. ^f 446 
 
 punishable by the Articles of War but which are of a nature 
 to bring discredit on the service, such as a failure to pay debts. 
 False Swearing. Giving false testimony before State courts 
 and other tribunals not organized or acting under any law 
 of the United States, and making false oaths or affidavits in 
 any other case in which no law of the United States author- 
 izes an oath to be administered, is not perjury under section 125 
 of the Federal Penal Code of 1910 (see " Perjury," Division IX, 
 par. 443, supra), and is, therefore, not punishable as perjury 
 under the ninety-third article of war. Such false swearing is 
 chargeable as conduct of a nature to bring discredit upon the 
 military service under the ninety-sixth article of war. 
 
 PKOOP. 
 
 (a) That the accused did or failed to do the acts alleged. 
 
 (b) The circumstances, intent, etc., as specified. 
 
 III. CRIMES OR OFFENSES NOT CAPITAL. 
 
 The crimes referred to in A. W. 96 manifestly embrace those 
 not capital committed in violation of public law as enforced 
 by the civil power (U. S. v. Grafton, 206 U. S. 348), the 
 " public law " here in contemplation being that of the United 
 States; that is, that enacted or adopted by the authority of the 
 Government of the United States. This includes the laws of the 
 District of Columbia and of the several Territories and posses- 
 sions of the United States as well as all laws of the United 
 States; but it excludes city ordinances and regulations and State 
 statutes, as well as the laws of friendly foreign countries (vio- 
 lations of which are, however, chargeable as conduct of a nature 
 to bring discredit upon the military service. (See, supra, Divi- 
 sion II of this paragraph.) 
 
 All crimes or offenses in violation of such public law of the 
 United States, wherever committed, that are not thereby made 
 punishable by death, are excluded, except such as are specifi- 
 cally included in some other article. 
 
 Within this description would be a noncapital crime 
 which, although designated by some special enactment for 
 some special purpose, or if committed by some special person or 
 
 21358 20- 30 
 
 463 
 
f 446 CHAPTER XVII. 
 
 class of persons, or under some special circumstance, with one 
 of the names used, for instance, in the ninety-third article, 
 is not within the general definition of the offense. 
 
 Thus section 90 of the Federal Penal Code of 1910 provides 
 that a failure by an officer to render accounts for public 
 money received by him unless authorized to retain it as sal- 
 ary, pay, or emolument is an embezzlement of such funds. 
 Such an embezzlement not being within the general definition 
 of embezzlement as the term is used in the ninety-third and 
 ninety- fourth articles would be chargeable under the general 
 article. 
 
 The elements of some of the more common crimes that are 
 chargeable under this article will now be discussed. 
 
 (1) Assault. 
 
 (2) Assault and battery. See matter under heading 
 " XII " under ninety-third article. 
 
 A battery is any unlawful touching or injury, however 
 slight, to the person of another directly or indirectly done 
 in an angry, revengeful, rude, or insolent manner. Throw- 
 ing water or spitting in a person's face is a battery. So, 
 merely taking hold of another's clothing, or pushing another 
 against him, or striking a horse on which he is riding caus- 
 ing him to be thrown; striking his cane while in his hand, 
 is a battery when done unlawfully and in the manner de- 
 scribed. 
 
 If the injury is accidentally inflicted in doing a lawful act 
 without culpable negligence the offense is not committed ; but 
 where personal injury results from the reckless doing of an 
 act likely to result in such injury, the offense is committed. 
 
 It is no defense that the injury took place on a person for 
 which it was not intended, or that the injury was not the im- 
 mediate result of the defendant's acts. Thus, if a person 
 throws a firecracker in a crowd where it is tossed from hand 
 to hand and finally explodes and puts out a man's eye, the 
 offense is committed. 
 
 (3) Maiming.- Section 283 of the Federal Penal Code of 1910 
 provides : 
 
 Whoever, with intent to maim or disfigure, shall cut, bite, or slit 
 the nose, ear, or lip, or cut out or disable the tongue, or put out or 
 destroy an eye, or cut off or disable a limb or any member of another 
 
 464 
 
PUNITIVE ARTICLES OF WAR. *[[ 446 
 
 person; or whoever, with like intent, shall throw or pour upon another 
 person any scalding hot water, vitriol or other corrosive acid, or 
 caustic substance whatever, shall be fined not more than one thousand 
 dollars or imprisoned not more than seven years, or both. 
 
 This is more inclusive than the common-law mayhem punish- 
 able under A. W. 93 (see "Mayhem," Division II, par. 443, 
 supra) in that mayhem only includes such hurts as render a 
 man " less able, in fighting, either to defend himself or to annoy 
 his adversary/' and does not include such injuries as merely 
 disfigure. Injuries of the latter class, therefore, together with 
 such injuries as scalding with hot water, vitriol or other cor- 
 rosive acid, or a caustic substance, which constitute violations 
 of section 283 of the Federal Penal Code above quoted, should 
 be charged as maiming, under A. W. 96. (See also "Assault 
 with a dangerous weapon, instrument, or other thing," Division 
 XIII, par. 443, supra.) 
 
 (4) Carnal Knowledge of Female under Sixteen. Section 279 
 of the Federal Penal Code of 1910 provides: 
 
 Whoever shall carnally and unlawfully know any female under the 
 age of sixteen years, or shall be accessory to such carnal and unlawful 
 knowledge "before the fact, shall, for a first offense, be imprisoned for 
 not more than fifteen years, and for a subsequent offense be impris- 
 oned not more than thirty years. 
 
 This offense is not rape and, therefore, it is not punishable 
 with death, and can not be charged under the ninety-second 
 article of war. (As to rape, see Division II, par. 442, supra.) 
 
 Neither force nor absence of consent of the female is essential 
 to be proved in a prosecution under this section, but evidence of 
 absence of consent is admissible as affecting the measure of 
 punishment. 
 
 The essential elements of the offense are (1) the carnal knowl- 
 edge and (2) that the female was under 16 years of age, and 
 was not the lawful wife of the accused. (As to carnal knowl- 
 edge, see, supra, " Rape," Division II, par. 442.) 
 
 (5) Burning Buildings, Vessels, Lumber, Stores, Arms, Ammu- 
 nition, etc. Section 286 of the Federal Penal Code of 1910 
 provides : 
 
 Sec. 286. Whoever shall maliciously set fire to, burn, or attempt to 
 burn, or by any means destroy or injure, or attempt to destroy or in- 
 jure, any arsenal, armory, magazine, ropewalk, shiphouse, warehouse, 
 
^[ 446 CHAPTER xvn. 
 
 blockhouse, or barrack, or any storehouse, barn, or stable not parcel 
 of a dwelling house, or any other building not mentioned in the sec- 
 tion last preceding, or any vessel built, building, or undergoing repair, 
 or any lighthouse, or beacon, or any machinery, timber, cables, rig- 
 ring, or other materials or appliances for building, repairing, or fitting 
 out vessels, or any pile of wood, boards, or other lumber, or any mili- 
 tary, naval, or victualing stores, arms, or other munitions of war, shall 
 be fined not more than five thousand dollars and imprisoned not more 
 than twenty years. 
 
 This section covers the burning and destruction of buildings 
 which are not the subject of arson. (IT. S. v. Cardish, 143 Fed. 
 Hep., 640.) (As to arson, see Division III, par. 443, supra.) 
 
 This section of the Penal Code is broad enough to cover any 
 burning or destruction or injury, or attempt to burn, destroy, or 
 injure any structure, machinery, appliances, equipment or stores, 
 or arms or ammunition of any kind whatever. 
 
 PEOOF. 
 
 Crimes in general: 
 
 (a) That the accused did, or failed to do, the acts 
 
 alleged. 
 (5) The circumstances, intent, etc., as alleged. 
 
 466 
 
CHAPTER XVIII. 
 
 COURTS OF INQUIRY. 
 
 Section I. Constitution : Page. 
 
 447. When and by whom ordered 468 
 
 447a. Retention of officers in the service 468 
 
 448. Limitation upon power to convene 468 
 
 449. Discretion as to ordering court 468 
 
 Section II. Jurisdiction: 
 
 450. As to persons 468 
 
 451. As to time _, 469 
 
 452. As to subject matter 469 
 
 Section III. Composition: 
 
 453. Members 469 
 
 454. Recorder 469 
 
 455. Convening order 469 
 
 456. Rank of members 470 
 
 457. Reporter and interpreter 470 
 
 Section IV. Powers: 
 
 458. To summon and examine witnesses 470 
 
 459. Refusal to appear or testify 470 
 
 Section V. Procedure : 
 
 461. General principles 470 
 
 462. Presence of party whose conduct is being investigated- 471 
 
 463. Counsel 471 
 
 464. Challenge 471 
 
 465. Reduced numbers 471 
 
 466. Oaths 472 
 
 467. Examination of witnesses 472 
 
 468. Depositions 472 
 
 469. Conclusions 473 
 
 470. Obligation of secrecy 473 
 
 471. Revision by court 473 
 
 472. Publication of proceedings 473 
 
 Section VI. Record: 
 
 473. How authenticated 474 
 
 474. Disposition of 474 
 
 475. Admissible in evidence. 474 
 
 467 
 
1f 447 CHAPTER XVIII. 
 
 SECTION I. 
 CONSTITUTION. 
 
 447. WHEN AND BY WHOM ORDERED. 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 a court 
 of inquiry shall not be ordered by any commanding officer 
 except upon the request of the officer or soldier whose conduct 
 is to be inquired into. (A. W. 97.) 
 
 447a. Retention of Officers in the Service. A court of inquiry 
 may also be ordered to inquire into the propriety of the action of 
 a classification board in classifying an officer in class B, " officers 
 who should not be retained in the service." (Sec. 24b, act of 
 June 4, 1920, 41 Stat. 773.) 
 
 448. LIMITATION UPON POWER TO CONVENE. There is no 
 statutory restriction to the meaning of the term "command- 
 ing officer," consequently any commander of the officer or 
 soldier who makes the request would have authority to con- 
 vene the court, but if the charge to be inquired into is beyond 
 the jurisdiction of a court-martial which such commander 
 can appoint, he would not, by analogies of the service in the 
 administration of military justice, be the proper convening 
 authority in such case. (Op. J. A. G., approved by Secre- 
 tary of War, Sept. 19, 1874.) 
 
 449. DISCRETION AS TO ORDERING COURT. Neither the Pres- 
 ident nor a commanding officer is obliged to order a court of 
 inquiry on demand of an officer or soldier. Where the facts 
 are thoroughly understood by the authority who is requested 
 to order a court of inquiry or can be satisfactorily ascer- 
 tained by an investigating officer, the commanding officer 
 may, in his discretion, refuse the application; but in the 
 event of such refusal the party, if not satisfied, may appeal 
 to higher authority. (Winthrop, p. 803.) 
 
 SECTION II. 
 JURISDICTION. 
 
 450. As TO PERSONS. A court of inquiry may examine 
 into the conduct of officers or soldiers only (A. W. 97), and 
 the inquiry is confined to those actually in the service. (Di- 
 gest, p. 586, XVIII, B.) 
 
 468 
 
COURTS OF INQUIRY. If 451 
 
 451. As TO TIME. The statute of limitations (A. W. 39) 
 does not apply to courts of inquiry. There is no legal objec- 
 tion therefore to investigating transactions that are remote 
 in time. 
 
 452. As TO SUBJECT MATTER. The inquiry is limited to 
 transactions of or accusations or imputations against officers 
 or soldiers. (A. W. 97.) The principal uses which courts 
 of inquiry are expected to serve are: (a) For determining 
 whether there should be a trial by court-martial in a par- 
 ticular instance; () for informing and advising superior 
 authority in cases which appear not to call for trial by court- 
 martial, but for some other military or administrative ac- 
 tion; (c) for the vindication of character or conduct (Win- 
 throp, p. 805) ; and (d) for inquiring into the correctness of the 
 action of classification boards in classifying officers in class B 
 as not to be retained in the service, under the provisions of 
 section 24b of the Army Reorganization Act of June 4, 1920 
 (41 Stat., 773). 
 
 SECTION III. 
 
 COMPOSITION. 
 
 453. MEMBERS. A court of inquiry shall consist of three or 
 more officers. (A. W. 98.) The Secretary of War may 
 assign retired officers, with their consent, upon courts of 
 inquiry. (Act of Apr. 23, 1904.) In time of war retired 
 officers may be employed on active duty in the discretion of 
 the President. (Sec. 127a, subpar. 3, act of June 4, 1920; 41 
 Stat., 773.) 
 
 454. RECORDER. For each court of inquiry the authority 
 appointing the court shall appoint a recorder. (A. W. 98.) 
 The recorder is not an adviser of the court nor a prosecutor 
 before it, but will assist the court, if it so desires, in all 
 matters leading to correct conclusions of fact and law. 
 
 455. CONVENING ORDER. The form of the convening order 
 is similar to that for a court-martial. It details the members 
 and recorder by name, fixes the time and place of meeting, 
 specifies the subject matter of inquiry, and directs a report 
 of the facts only, or of the facts with an opinion on the 
 merits of the case. 
 
^[456 CHAPTER XVIII. 
 
 456. RANK OF MEMBERS. There is no statute prescribing 
 the rank of members, but when it can be avoided they should 
 not be inferior in rank to the officer whose conduct is being 
 inquired into. The decision of the appointing authority, 
 as indicated by the order convening the court, is conclusive 
 as to whether or not it can be avoided. 
 
 457. REPORTER AND INTERPRETER. The president of a court 
 of inquiry has the same power to appoint reporters and in- 
 terpreters as is delegated to the president of a court-martial. 
 (A. W. 115.) They will be paid at the rates fixed by para- 
 graph 113, supra. An enlisted man may be detailed to serve 
 as stenographic reporter and will receive extra pay as pro- 
 vided by paragraph 115, supra. (Act of Aug. 24, 1912, 37 
 Stat., 575.) 
 
 A reporter will always be appointed for a court of inquiry 
 convened to consider the classification of an officer in class B, 
 under section 24b of the Army Reorganization Act of June 4, 
 1920, 41 Stat., 773. 
 
 SECTION IV. 
 POWERS. 
 
 458. To SUMMON AND EXAMINE WITNESSES. A court of 
 inquiry and the recorder thereof shall have the same power 
 to summon and examine witnesses as is given to a court- 
 martial and the trial judge advocate thereof. (A. W. 101.) 
 
 459. REFUSAL TO APPEAR OR TESTIFY. Any person not sub- 
 ject to military law who, being duly subpoenaed to appear as 
 a witness before a court of inquiry or before any officer, mili- 
 tary or civil, designated to take a deposition to be read in 
 evidence before such court, willfully neglects or refuses to 
 appear, or refuses to qualify as a witness, or to testify, or to 
 produce documentary evidence which such person may have 
 been legally subpoenaed to produce, shall be deemed guilty of 
 a misdemeanor and punished as in like offenses with respect 
 to courts-martial. (A. W. 23.) 
 
 [Note. Paragraph 460 is omitted in this revision.] 
 SECTION V. 
 PROCEDURE. 
 
 461. GENERAL PRINCIPLES. A court of inquiry is governed 
 by the general principles of military law, applying the 
 
 470 
 
COURTS OF INQUIRY. *[[ 462 
 
 analogies of a court-martial where they are applicable, and 
 recurring to adjudged cases, precedents, rules, authoritative 
 legal opinions, and approved books of legal exposition where 
 there is no pertinent paramount stated rule. A court of 
 inquiry is not really a court in the legal sense of the term, 
 for no criminal issue is formed before it, it arraigns no 
 accused, receives no plea, makes no findings of guilt or in- 
 nocence, awards no punishment, and expresses no opinion 
 unless specially ordered to do so. 
 
 462. PRESENCE or PARTY WHOSE CONDUCT Is BEING IN- 
 VESTIGATED. The presence of the party whose conduct is 
 being investigated is not essential and his absence does not 
 affect the authority of the court to proceed with the hearing ; 
 but nevertheless lie will ordinarily, in all cases (and always in 
 cases of courts of inquiry convened to consider the classification 
 of an officer in class B, under section 24b of the Army Reorgani- 
 zation Act of June 4, 1920, 41 Stat., 773) be given an opportunity 
 to be present. 
 
 463. COUNSEL. The party whose conduct is being inquired 
 into shall have the right to be represented before the court 
 by counsel of his own selection, if such counsel be reasonably 
 available. (A. W. 99.) So also the accuser, where there is 
 one, should usually be allowed to be present with counsel, and 
 a similar privilege may properly be extended to any officer 
 who will be materially involved in the inquiry. (Winthrop, 
 p. 812.) 
 
 464. CHALLENGE. Members of a court of inquiry may be 
 challenged by the party whose conduct is being inquired into, 
 but only for cause stated to the court. The court shall deter- 
 mine the relevancy and validity of any challenge, and shall 
 not receive a challenge to more than one member at a time. 
 (A. W. 99.) 
 
 465. REDUCED NUMBERS. Where the number of members 
 is reduced by casualty or challenge, the court may proceed 
 with the reduced number, if not below the minimum, but the 
 appointing authority should be notified in order that he may 
 detail new members if he desires to do so. If any testimony 
 has been taken before a new member is added, it should be 
 
 473 
 
T[ 466 CHAPTER XVIII. 
 
 read to him in the presence of the other members. In the 
 absence of the recorder the junior member can not act as 
 recorder. The proper procedure is to notify the convening 
 authority and adjourn to await the appointment of another 
 recorder. 
 
 466. OATHS. The recorder of a court of inquiry shall ad- 
 minister to the members the following oath : 
 
 You, A. B., do swear (or affirm) that you will well and truly examine 
 and inquire, according to the evidence, into the matter now befoi'e 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 (or affirm) that you will, according to your 
 best abilities, accurately and impartially record the proceedings of 
 the court and the evidence to be given in the case in hearing. So help 
 you God. 
 
 In case of affirmation the closing sentence of adjuration 
 will be omitted. (A. W. 100.) 
 
 Witnesses shall take the same oath or affirmation that is 
 taken by witnesses before courts-martial, and a reporter 
 or interpreter shall, before entering upon his duties, take 
 the oath or affirmation required of a reporter or an inter- 
 preter for a court-martial. (A. W. 101.) 
 
 467. EXAMINATION OF WITNESSES. The examination of 
 witnesses may be by the court, by a member thereof, or by 
 the recorder, in the discretion of the court. The party whose 
 conduct is being inquired into or his counsel, if any, shall be 
 permitted to examine and cross-examine witnesses so as fully 
 to investigate the circumstances in question. (A. W. 101.) 
 A witness may not be compelled to answer any question the 
 answer to which may tend to incriminate him, or any question 
 not material to the issue when such answer might tend to 
 degrade him. (A. W. 24.) 
 
 468. DEPOSITIONS. Depositions to be read in evidence be- 
 fore courts of inquiry are taken and admitted in evidence 
 under the same rules governing their taking and admissi- 
 bility in evidence before courts-martial. (A. W. 25, 26.) 
 
 472 
 
COURTS OF INQUIRY. f 469 
 
 469. CONCLUSIONS. The court must, as a finding, give its 
 conclusions as to the facts, and, when ordered, must also 
 give an opinion on the merits of the case. The conclusions 
 or opinion may not be unanimous, in which case a dissenting 
 conclusion or opinion is authorized. 
 
 470. OBLIGATION OF SECRECY. The oath of members of a 
 court of inquiry, unlike that of members of a court-martial, 
 does not enjoin upon them secrecy as to the votes and opinions 
 of members, but under the custom of the service it would be 
 conduct prejudicial to discipline to divulge the recommenda- 
 tion or opinion of the court until announced by the appoint- 
 ing authority, or to disclose the vote or opinion of a member 
 unless legally required to do so. 
 
 471. REVISION BY COURT. If not satisfied with the investi- 
 gation, or with the report or opinion, the reviewing authority 
 may reassemble the court, in the same manner as a court- 
 martial, and return the proceedings with direction either to 
 have the investigation pursued further and completed, or the 
 report of the facts made more detailed and comprehensive, 
 or the opinion expressed in terms more definite and unequivo- 
 cal or more responsive to the original instructions, or to 
 correct or supply some other error or defect. The inquiry 
 not being a trial but an investigation merely, the court may 
 properly be required, upon revision, to reexamine witnesses 
 or to take entirely new testimony, or it may do so of its 
 own motion without orders in connection with the revision. 
 (Winthrop, p. 819.) 
 
 472. PUBLICATION OF PROCEEDINGS. The reviewing author- 
 ity, having taken final action upon the report or opinion, may 
 publish in orders, in whole or in part, or in substance, the re- 
 port of the court upon the subject of the inquiry, with the 
 opinion, if any, and the determination had or action taken 
 thereon. Upon considerations, however, of policy or justice, 
 the President or commander may, in his discretion, delay the 
 publication, or omit altogether the publication of, the report, 
 etc., or may publish the result alone, as, for example, that it 
 is determined that no further proceedings are called for in 
 the case. 
 
 473 
 
If 473 CHAPTER XVIII. 
 
 SECTION VI. 
 RECORD. 
 
 473. How AUTHENTICATED. Each court of inquiry shall 
 keep a record of its proceedings, which shall be authenticated 
 by the signature of the president and the recorder thereof. 
 In case the record can not be authenticated by the recorder, 
 by reason of his death, disability, or absence, it shall be 
 signed by the president and by one other member of the court. 
 (A. W. 103.) 
 
 474. DISPOSITION OF. The record shall be forwarded to the 
 reviewing authority. (A. W. 103.) Should the court be 
 appointed by the President the proceedings will be sent direct 
 to the Judge Advocate General of the Army. To his office 
 will be forwarded the original proceedings of all courts of in- 
 quiry with the decisions and orders of the reviewing authority 
 made thereon, accompanied by five copies of the order pub- 
 lishing the case, if there be any, also a copy of every subse- 
 quent order affecting the case. When more than one case is 
 embraced in a single order, a sufficient number of copies will 
 be forwarded to enable one to be filed with each record. 
 
 475. ADMISSIBLE IN EVIDENCE. The record of the proceed- 
 ings of a court of inquiry may be read in evidence before any 
 court-martial or military commission in any case not capital 
 nor extending to the dismissal of an officer, and may also be 
 read in evidence in any proceeding before a court of inquiry 
 or a military board: Provided, That such evidence may be 
 adduced by the defense in capital cases or cases extending to 
 the dismissal of an officer. (A. W. 27. See par. 272.) 
 
 474 
 
CHAPTER XIX. 
 
 HABEAS CORPUS. 
 
 Section I. Purpose of writ: Pag. 
 
 476. To determine legality of restraint 475 
 
 Section II. Where restraint is by the United States: 
 
 477. State court without authority 475 
 
 Section III. Return to writ issued by State court: 
 
 478. To show authority for restraint 476 
 
 (a) Witness held under warrant of attachment 476 
 
 (&) Enlisted man or general prisoner 477 
 
 Section IV. Return to writ issued by a United States court : 
 
 479. Contents . 477 
 
 Section V. Writ issued in the Philippine Islands: 
 
 480. When return conclusive 478 
 
 SECTION I. 
 PURPOSE OF WRIT. 
 
 476. To DETERMINE LEGALITY OF RESTRAINT. The purpose 
 of the writ of habeas corpus is to bring the person seeking 
 the benefit of it before the court or judge to determine 
 whether or not he is illegally restrained of his liberty. It is 
 a summary remedy for unlawful restraint of liberty and 
 it can not be made use of to perform the function of a writ 
 of error or an appeal. Where it is decided that the restraint 
 is unlawful he is ordered released, but if the restraint is 
 lawful the writ is dismissed. If the restraint be by virtue 
 of legal process, the validity and present force of such 
 process are the only subjects of investigation. 
 
 SECTION II. 
 WHERE RESTRAINT IS BY THE UNITED STATES. 
 
 477. STATE COURT WITHOUT AUTHORITY. A State court la 
 without authority to inquire into the legality of the restraint 
 
 475 
 
1f 478 CHAPTER XIX. 
 
 where it appears that the custody is by virtue " of the 
 authority of the United States," the principle being that no 
 State can authorize one of its judges or courts to exercise 
 judicial power, by habeas corpus, within the jurisdiction 
 of another and independent government. No State judge 
 or court, after they are judicially informed that the party 
 is held under the authority of the United States, has any 
 right to interfere with him or to require him to be brought 
 before them. (Robb v. Connolly, 111 U. S., 624, 632; Able- 
 man v. Booth, 21 How., 506, 514; Tarble's case, 13 Wall, 397, 
 409.) If a party thus held be illegally imprisoned, it is for 
 the courts or judicial officers of the United States, and those 
 courts or officers alone, to grant him release. (Tarble's case, 
 13 Wall., 397, 411.) 
 
 SECTION III. 
 
 RETURN TO WRIT ISSUED BY STATE COURT. 
 
 478. To SHOW AUTHORITY FOR RESTRAINT. The return 
 should be sufficient in its detail of facts to show distinctly 
 that the imprisonment is under the authority, or claim and 
 color of the authority, of the United States and to exclude 
 the suspicion of imposition or oppression on the part of the 
 officer making the return. The process or orders under 
 which the petitioner is held should be produced with the 
 return and submitted to inspection in order that the court 
 ox the jucjge issuing the writ may see that the officer is 
 Acting in good faith, under the authority or claim and color 
 of authority of the United States, and not under the mere 
 pretense of having such authority. (Tarble's case, 13 WalL, 
 397, 409 ; Covell v. Heyinan, 111 U. S., 176, 183.) 
 
 (a) Witness Held Under ~W arrant of Attachment. Where 
 the petitioner is a civilian who has been apprehended under 
 a warrant of attachment to be taken before a court-martial 
 U> testify as a witness, the officer making the return to the 
 writ issued by a State court or judge will not produce the 
 body, but will, by his return, set forth fully the authority 
 by which he holds the person and allege that the State 
 court, or judge, issuing the writ is without jurisdiction to 
 
 476 
 
HABEAS CORPUS. If 479 
 
 issue the same and ask to have it dismissed. He will ex- 
 hibit to the court or judge issuing the writ of habeas corpus 
 the warrant of attachment and the subpoena (and the proof 
 of service of the subpoena) on which the warrant of at- 
 tachment was based, and also a certified copy of the order 
 convening the court-martial before which the witness was 
 subpoenaed to testify, together with a copy of the charges 
 and specifications in the case in which he was subpoenaed 
 to testify, and an affidavit showing that the witness has 
 failed to appear in response to such subpoena. 
 
 NOTE. For form of return see Form B, Appendix 22. 
 (b) Enlisted Man or General Prisoner. The return to 
 a writ of habeas corpus issued by a State court or judge to 
 produce an enlisted man or a general prisoner and show cause 
 for his detention will show in writing that the subject of 
 the writ is a duly enlisted soldier of the United States or a 
 general prisoner, as the case may be, and set forth fully 
 the cause of his detention, but the officer making the return 
 will decline to produce in court the body of the prisoner 
 named in the writ, giving as a reason for such refusal the 
 fact that the Supreme Court of the United States has de- 
 cided that a State court or judge has no jurisdiction in such 
 a case. 
 
 NOTE. For form of return see Form D, Appendix 22. A deserter 
 apprehended by a civil officer authorized by a statute of the United 
 States to apprehend deserters is in the custody of the United States. 
 (See U. S. v. Reaves, 126 Fed. Rep., 127.) 
 
 SECTION IV. 
 RETURN TO WRIT ISSUED BY A UNITED STATES COURT. 
 
 479. CONTENTS. A writ of habeas corpus issued by a 
 United States court or judge will be promptly obeyed. The 
 person alleged to be illegally restrained of his liberty will be 
 taken before the court from which the writ has issued and a 
 return made, setting forth the reasons for his restraint. The 
 officer upon whom such writ is served will at once report the 
 fact of such service by telegraph direct to The Adjutant 
 General of the Army and the commanding general of the 
 
 477 
 
^f 480 CHAPTER XIX. 
 
 corps area or department, stating briefly the grounds on 
 which the release of the party is sought. 
 
 NOTE. For form where a civilian witness is held under warrant of 
 attachment, see Form A, Appendix 22. For form where an enlisted 
 man or general prisoner is held, see Form G, Appendix 22. For brief 
 of authorities when writ is applied for on grounds of age, see Ap- 
 pendix 22. 
 
 SECTION V. 
 WRIT ISSUED IN THE PHILIPPINE ISLANDS. 
 
 480. WHEN RETURN CONCLUSIVE. It shall be a conclusive 
 answer to a writ of habeas corpus against a military officer or 
 soldier and a sufficient excuse for not producing the prisoner 
 if the commanding general or any general officer in command 
 of the department or district shall certify that the prisoner 
 is held by him either 
 
 (a) As a prisoner of war; or 
 
 (b) As a member of the Army, civilian employee thereof, 
 or a camp follower and subject to its discipline ; or 
 
 (c) As a prisoner guilty of violation of the laws of war 
 committed in any unpacified province or territory and who 
 has escaped into provinces officially declared to be under civil 
 control and has been there captured by military authorities 
 and is held for trial for such violations of the laws of war. 
 
 NOTE. Section 1, Act No. 272, Philippine Commission, October 21, 
 1901, and section 4, Act No. 421, id., June 23, 1902. Respectful return 
 in writing will be made in the case of prisoners who may be exempted 
 from jurisdiction by the provisions of these acts 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. 
 
 478 
 
CHAPTER XX. 
 
 MISCELLANEOUS AND TRANSITORY PROVISIONS. 
 
 Section I. Miscellaneous provisions: Page. 
 
 481. Injuries to persons or property Redress 479 
 
 482. Effects of deceased persons Disposition 481 
 
 483. Inquests 482 
 
 484. Removal of civil suits 483 
 
 485. Complaints of wrongs 484 
 
 486. Articles of War When effective 484 
 
 Section II. Transitory provision: 
 
 487. Prior offenses subject to previous laws 484 
 
 SECTION I. 
 MISCELLANEOUS PROVISIONS. 
 
 481. INJURIES TO PERSONS OR PROPERTY REDRESS. Article 
 105 imposes upon a commanding officer, upon receipt of a 
 complaint that damage has been done to the property of any 
 person, or that his property has been wrongfully taken, by 
 any person subject to military law, the duty to convene a 
 board of officers consisting of any number from one to three 
 to investigate the complaint. The article provides the ad- 
 ministrative machinery by which money reparation for acts 
 of waste, spoil, destruction, or depredation, denounced in 
 A. W. 89 as offenses, shall be made effective. The article is 
 not limited to the injuries covered by A. W. 89, but includes 
 also other forms of damage to, and wrongful taking of, prop- 
 erty, including negligent injuries thereto. (Dig. Ops. J. A. 
 Cr., April, 1918, p. 8.) The complaint will more properly be 
 made in writing by the injured party or his representative, 
 and should set forth the details of the injury and be sus- 
 tained by evidence showing it to be meritorious and well 
 founded; and this evidence may also properly be required 
 to be exhibited in the form of affidavits or written statements. 
 It is competent, however, for a commanding officer, apprised 
 
 21358 20 31 
 
 479 
 
[[ 481 CHAPTER XX. 
 
 by the report of any person in the military service, or by the 
 oral complaint of the party injured, of any such damage, to 
 proceed with the investigation as here outlined in case of 
 written complaint submitted by or in behalf of the party in- 
 injured and supported by affidavits or written statement. 
 The board will be convened with the least practicable delay, 
 is empowered to summon witnesses, examine them under oath 
 or affirmation, receive depositions or other documentary evi- 
 dence, and assess the damages against the person or persons 
 determined to be responsible for the damage or wrongful 
 taking. The board's assessment of damages is subject to the 
 approval of the commanding officer and an assessment thus 
 approved will be stopped against the pay of the offender. 
 The order of the commanding officer directing stoppages 
 authorized by the article is conclusive on any disbursing 
 officer for the payment by him to the injured party of the 
 stoppages. 
 
 The occasions for resorting to the procedure under this 
 article are more frequent in a period pending or immediately 
 succeeding a time of war, or during field operations and 
 maneuvers. As the absolute identity of the guilty parties 
 can not always be determined, the article further provides 
 that in such a case, and when the organization or detachment 
 to which they belong is known, stoppages to the amount of 
 damages inflicted may be made and assessed in such propor- 
 tion as may be deemed just upon the individual members 
 thereof who are shown to have been present with such or- 
 ganization, or detachment at the time the damages com- 
 plained of were inflicted, as determined by the approved 
 findings of the board. 
 
 The guilty parties may be tried and punished for the mili- 
 tary offense involved in his and their act under A. W. 89, 
 quite irrespectively of any proceeding for the reparation of 
 the parties injured had under this article. A trial, however, 
 will preferably be first ordered, since, if reparation be sub- 
 sequently sought to be made, the commander and the board 
 will have the benefit of any material facts developed upon 
 the original investigation. So, if the accused be acquitted, 
 such acquittal will furnish persuasive but not necessarily 
 
 480 
 
MISCELLANEOUS AND TRANSITORY PROVISIONS. 5 482 
 
 conclusive ground for not favorably entertaining the com- 
 plaint or for reducing the amount to be assessed. 
 
 482. EFFECTS OF DECEASED PERSON DISPOSITION OF. In 
 case of the death of any person subject to military law, the 
 commanding officer of the place of command will permit the 
 legal representative or widow of the deceased, if present, to 
 take possession of all his effects then in camp or quarters; 
 and if no legal representative or widow be present, the com- 
 manding officer shall direct a summary court to secure all 
 such effects, and said summary court shall have authority to 
 collect and receive any debts due decedent's estate by local 
 debtors and to pay the undisputed local creditors of decedent in 
 so far as any money belonging to tire deceased which may come 
 into said summary court's possession under this article will per- 
 mit, taking receipts therefor for file with said court's final report 
 upon its transactions to the War Department; and as soon as 
 practicable after the collection of such effects said summary 
 court shall transmit such effects and any money collected, 
 through the Quartermaster Department, at Government ex- 
 pense, to the widow or legal representative of the deceased, if 
 such be found by said court or to the son, daughter, father, 
 provided the father has not abandoned the support of his family, 
 mother, brother, sister, or next of kin in the order named, if 
 such be found by said court, or the beneficiary named in the 
 will of the deceased, if such be found by said court, and said 
 court shall thereupon make to the War Department a full re- 
 port of its transactions ; but if there be none of the persons 
 hereinabove named, or such persons or their addresses are not 
 known to, or readily ascertainable by said court, and the said 
 court shall so find, said summary court shall have authority 
 to convert into cash, by public or private sale, not earlier than 
 thirty days after the death of the deceased, all effects of the 
 deceased except sabers, insignia, decorations, medals, watches, 
 trinkets, manuscripts, and other articles valuable chiefly as 
 keepsakes; and as soon as practicable after converting such 
 effects into cash said summary court shall deposit with the 
 proper officer, to be designated in regulations, any cash be- 
 longing to decedent's estate, and shall transmit a receipt for 
 such deposits, any will or other papers of value belonging to 
 
 481 
 
^ 483 CHAPTER XX. 
 
 the deceased, any sabers, insignia, decorations, medals, 
 watches, trinkets, manuscripts, and other articles valuable 
 chiefly as keepsakes, together with an inventory of the ef- 
 fects secured by said summary court, and a full account of its 
 transactions, to the War Department for transmission to the 
 Auditor for the War Department for action as authorized by 
 law in the settlement of the accounts of deceased officers and 
 enlisted men of the Army. 
 
 The provisions of this article shall be applicable to inmates 
 of the United States Soldiers' Home who die in any United 
 States military hospital outside of the District of Columbia 
 where sent from the home for treatment. (A. W. 112.) 
 
 483. INQUESTS. Article 113 imposes upon the summary 
 court-martial the principal duties of the office of coroner at 
 common law, viz, to investigate the cause of sudden, violent, 
 and unnatural deaths. When a person is found dead at a 
 place described in the article, and there is reasonable belief 
 that his death has occurred from violence or other unlawful 
 means, the commanding officer will immediately designate 
 and direct a summary court-martial to investigate the cir- 
 cumstances attending the death, to the end that the cause 
 thereof may be determined and the persons criminally re- 
 sponsible therefor may be brought to justice. The summary 
 court-martial will with the least practicable delay view the 
 body of the deceased and summon and examine, under oath or 
 affirmation, such witnesses as may have knowledge of the 
 cause and circumstances of the death. The summary court- 
 martial should warn every person testifying at the inquest 
 who is accused or suspected that he is not required to give evi- 
 dence incriminating himself, and that any statement or evi- 
 dence he gives may be used against him in the event of any 
 further proceedings being instituted. If expert medical 
 testimony is necessary, the commanding officer will, at the 
 request of the summary court-martial, direct a medical 
 officer to make such examination of the body of the deceased 
 as may be necessary and to appear as a witness at the inquest. 
 The testimony of each witness will be reduced to writing, and 
 will, except when stenographically reported, be subscribed 
 by him, and will be appended to the report of the inquest. 
 
 482 
 
MISCELLANEOUS AND TRANSITORY PROVISIONS. ^ 484 
 
 If the body of the deceased shows wounds or bruises such 
 as to indicate or create suspicion that he came to his death 
 by violent means, it shall be the duty of the summary court- 
 martial to ascertain with as much exactness as possible the 
 precise nature of the wounds or blows and the character of 
 the instrument by which the wounds were inflicted ; the per- 
 son or persons by whom the fatal blow or blows were dealt ; 
 if there were any aiders or abettors ; and such other particu- 
 lars as may afford the means of drawing up, with the pre- 
 cision required by law, the necessary charges and specifica- 
 tions against the person or persons accused of the homicide. 
 
 The summary court officer will render a written report of 
 his investigation to the post or other commanding officer, 
 which report will state his finding as to the cause of the death 
 and the names of the persons criminally responsible therefor, 
 if in his opinion there be any such. Such persons, though 
 not subject to military law, may, if found at any post over 
 which the United States has exclusive jurisdiction, be con- 
 fined by the commanding officer for such time as may be neces- 
 sary for their delivery to the civil authorities. If such per- 
 sons are subject to military law and appear to be guilty of an 
 offense not triable by court-martial, they will be confined by 
 the commanding officer, who will immediately furnish the 
 proper United States district attorney with a copy of the 
 findings of the summary court officer. 
 
 If the person over whose body the inquest is held is not 
 identified as an officer or soldier, the report of the summary 
 court-martial shall give a description of the deceased, which 
 shall specify the name, if known, the apparent age, the sex, 
 the color of the eyes and hair, and all marks or other par- 
 ticulars which may assist in the identification of the person. 
 
 NOTE. For form of report of inquest see Appendix 26. 
 
 484. REMOVAL OF CIVIL SUITS. When any civil suit or 
 criminal prosecution is commenced in any court of a State 
 against any officer, soldier, or other person in the military 
 service of the United States on account of any act done under 
 color of his office or status, or in respect to which he claims 
 any right, title, or authority under any law of the United 
 States respecting the military forces thereof, or under the 
 
 483 
 
If 485 CHAPTER XX. 
 
 law of war, such suit or prosecution may at any time before 
 the trial or final hearing thereof be removed for trial into the 
 district court of the United States in the district where the 
 same is pending in the manner prescribed in section 33 of the 
 act entitled "An act to codify, revise, and amend the laws 
 relating to the judiciary," approved March 3, 1911 (36 Stat. 
 1097), and the cause shall thereupon be entered on the docket 
 of said district court and shall proceed therein as if the cause 
 had been originally commenced in said district court- and the 
 same proceedings had been taken in such suit or prosecution 
 in said district court as shall have been had therein in said 
 State court prior to its removal, and said district court 
 shall have full power to hear and determine said cause. 
 (A. W. 117.) 
 
 485. COMPLAINTS OF WRONGS. Any officer or soldier who 
 believes himself wronged by his commanding officer, and, 
 upon due application to such commander, is refused redress, 
 may complain to the general commanding in the locality 
 where the officer against whom the complaint is made is sta- 
 tioned. The general shall examine into said complaint and 
 take proper measures for redressing the wrong complained 
 of; and he shall, as soon as possible, transmit to the Depart- 
 ment of War a true statement of such complaint, with the 
 proceedings had thereon. (A. W. 121.) 
 
 486. ARTICLES OF WAR WHEN EFFECTIVE. Chapter II of 
 the act of Congress entitled "An act to amend an act entitled 
 'An act for making further and more effectual provision for the 
 national defense, and for other purposes,' approved June 3, 1916, 
 and to establish military justice," approved June 4, 1920, repeals 
 section 1342 of the Revised Statntes of the United States and 
 contains the Articles of War. It is provided by section 2 of the 
 act cited that the provisions of Chapter II of that act shall take 
 effect and be in force eight months after the approval of that 
 act: Provided, That articles 2, 23, and 45 shall take effect 
 immediately. 
 
 SECTION II. 
 
 TRANSITORY PROVISION. 
 
 487. PRIOR OFFENSES SUBJECT TO PREVIOUS LAWS. It is 
 provided by section 3 of the act of Congress entitled "An act to 
 
 484 
 
MISCELLANEOUS AND TRANSITORY PROVISIONS. ^ 487 
 
 amend an act entitled 'An act for making further and more 
 effectual provision for the national defense and for other pur- 
 poses,' approved June 3, 1916, and to establish military justice," 
 approved June 4, 1920, that all offenses committed and all penal- 
 ties, forfeitures, fines, or liabilities incurred prior to the taking 
 effect of Chapter II of that act, under any law embraced in or 
 modified, changed, or repealed by Chapter II of that act, may be 
 prosecuted, punished, and enforced in the same manner and with 
 the same effect as if that act had not been passed. 
 
 485 
 
APPENDICES. 
 
 1. THE ARTICLES OF WAR. 
 
 2. SYSTEM OF COURTS-MARTIAL FOB NATIONAL GUARD NOT IN TEM 
 
 SERVICE OF THE UNITED STATES. 
 
 3. FORM OF ORDER APPOINTING A GENERAL COURT-MARTIAL. 
 
 4. FORM OF ORDER APPOINTING A SPECIAL COURT-MARTIAL. 
 
 5. CHARGE SHEET. 
 
 6. FORMS OF CHARGES. 
 
 7. FORMS FOR SYNOPSES OF CONVICTIONS BY COURT-MARTIAL (FO 
 
 ENTRY IN SERVICE RECORD). 
 
 8. SUGGESTIONS FOR TRIAL JUDGE ADVOCATES. 
 
 9. FORMS FOR USE OF PRESIDENT AND LAW MEMBER. 
 
 10. FORM FOB RECORD GENERAL COURT-MARTIAL AND REVISION PBO- 
 
 CEEDINGS. 
 
 11. FORM FOR RECORD SPECIAL COURT-MARTIAL. 
 
 12. FORM FOR RECORD SUMMARY COURT-MARTIAL. 
 
 13. FORMS FOR SENTENCES. 
 
 14. FORMS FOR SYNOPSES OF SENTENCES. 
 
 15. FORMS FOR ACTION BY REVIEWING AUTHORITY. 
 
 16. COURT-MARTIAL ORDERS: 
 
 (a) GENERAL COURT-MARTIAL. 
 (&) SPECIAL COURT-MARTIAL. 
 
 17. FORM FOR INTERROGATORIES AND DEPOSITION. 
 
 18. FORM OF REPORT OF INVESTIGATING OFFICER. 
 
 19. SUBPCENA FOR CIVILIAN WITNESS. 
 
 20. WARRANT OF ATTACHMENT. 
 
 21. GENERAL ORDER No. 1, WAR DEPARTMENT, DECEMBEB 1, 1920 EX- 
 
 EMPTIONS OF CERTAIN CLASSES FROM JURISDICTION OF SPECIAL AND 
 SUMMARY COURTS-MARTIAL. 
 
 22. RETURNS AND BRIEFS IN HABEAS CORPUS PROCEEDINGS. 
 
 23. VOUCHER: CIVILIAN WITNESS NOT IN GOVERNMENT EMPLOY. 
 
 24. VOUCHER : CIVILIAN WITNESS IN GOVERNMENT EMPLOY. 
 
 25. VOUCHER: PERSONAL SERVICES, REPORTER. 
 
 26. REPORT OF INQUEST. 
 
 27. LIST OF COMMON ERRORS TO BE AVOIDED. 
 
 486a 
 
APPENDIX 1. 
 THE ARTICLES OF WAR. 
 
 (CHAPTER II. ACT OF JUNE 4, 1920, 41 STAT. 787.) 
 
 TABLE OF CONTENTS. 
 
 I. PRELIMINABY PROVISIONS: 
 
 Art. 1. Definitions. 
 
 Art. 2. Persons subject to military law. 
 II. COUBTS-MABTIAJL : 
 
 Art 3. Courts-martial classified. 
 (a) Composition 
 
 Art. 4. Who may serve on courts-martial. 
 
 Art. 5. General courts-martial. 
 
 Art 6. Special courts-martial. 
 
 Art. 7. Summary courts-martiaL 
 (6) By whom appointed 
 
 Art. 8. General courts-martial. 
 
 Art. 9. Special courts-martial. 
 
 Art 10. Summary courts-martial. 
 
 Art. 11. Appointment of trial judge advocates and counsel. 
 
 (c) Jurisdiction 
 
 Art 12. General courts-martial. 
 Art. 13. Special courts-martial. 
 Art 14. Summary courts-martial. 
 Art. 15. Not exclusive. 
 Art. 16. Officers, how triable. 
 
 (d) Procedure 
 
 Art 17. Trial judge advocate to prosecute; counsel to de- 
 fend. 
 
 Art. 18. Challenges. 
 Art 19. Oaths. 
 Art 20. Continuances. 
 Art. 21. Refusal or failure to plead. 
 Art. 22. Process to obtain witnesses. 
 Art. 23. Refusal to appear or testify. 
 Art. 24. Compulsory self-mcrimination prohibited. 
 Art. 25. Depositions when admissible. 
 Art. 26. Depositions before whom taken. 
 Art 27. Courts of inquiry records of when admissible. 
 Art. 28. Certain acts to constitute desertion. 
 Art 29. Court to announce action. 
 Art. 30. Closed sessions. 
 
 487 
 
APPENDIX 1. 
 
 II. COURTS-MARTIAL Continued. 
 
 (d) Procedure Continued. 
 
 Art. 31. Method of voting. 
 Art. 32. Contempts. 
 
 Art. 33. Records general courts-martial. 
 Art. 34. Records special and summary courts-martial. 
 Art. 35. Disposition of records General courts-martial. 
 Art. 36. Disposition of records special and summary courts- 
 martial. 
 
 Art. 37. Irregularities effect of. 
 Art. 38. President may prescribe rules. 
 
 (e) Limitations upon prosecutions 
 
 Art. 39. As to time. 
 
 Art. 40. As to number. 
 (/) Punishments 
 
 Art. 41. Cruel and unusual punishments prohibited. 
 
 Art. 42. Places of confinement when lawful. 
 
 Art. 43. Death sentence when lawful. 
 
 Art. 44. Cowardice; fraud; accessory penalty. 
 
 Art. 45. Maximum limits. 
 (g) Action by appointing or superior authority 
 
 Art. 46. Action by convening authority. 
 
 Art. 47. Powers incident to power to approve. 
 
 Art. 48. Confirmation when required. 
 
 Art. 49. Powers incident to power to confirm. 
 
 Art. 50. Mitigation or remission of sentences. 
 
 Art. 50^. Review; rehearing. 
 
 Art. 51. Suspension of sentences of dismissal or death. 
 
 Art. 52. Suspension of sentences. 
 
 Art. 53. Execution or remission; confinement in disciplin- 
 ary barracks. 
 Ill, PUNITIVE ARTICLES: 
 
 (a) Enlistments; muster; returns-* 
 
 Art. 54. Fraudulent enlistment. 
 
 Art. 55. Officer making unlawful enlistment. 
 
 Art. 56. False muster. 
 
 Art. 57. False returns omission to render returns. 
 (&) Desertion; absence without leave 
 
 Art. 58. Desertion. 
 
 Art. 59. Advising or aiding another to desert. 
 
 Art. 60. Entertaining a deserter. 
 
 Art. 61. Absence without leave, 
 (c) Disrespect; insubordination; mutiny 
 
 Art. 62. Disrespect toward the President, Vice President, 
 Congress, Secretary of War, governors, legisla- 
 tures. 
 
 Art. 63. Disrespect toward superior officers. 
 
 Art 64. Assaulting or willfully disobeying superior officer. 
 
 488 
 
THE ARTICLES OF WAR. 
 
 III. PUNITIVE ARTICLES Continued. 
 
 (c) Disrespect; insubordination; Mutiny Continued. 
 
 Art. 65. Insubordinate conduct toward noncommissioned 
 
 officer. 
 
 Art. 66. Mutiny or sedition. 
 Art. 67. Failure to suppress mutiny or sedition. 
 Art. 68. Quarrels ; frays ; disorders. 
 
 (d) Arrest; confinement 
 
 Art. 69. Arrest or confinement. 
 
 Art. 70. Charges ; action upon. 
 
 Art. 71. Refusal to receive and keep prisoners. 
 
 Art. 72. Report of prisoners received. 
 
 Art. 73. Releasing prisoner without proper authority. 
 
 Art. 74. Delivery of offenders to civil authorities. 
 
 (e) War offenses 
 
 Art. 75. Misbehavior before the enemy. 
 Art. 76. Compelling commander to surrender. 
 Art. 77. Improper use of countersign. 
 Art. 78. Forcing a safeguard. 
 
 Art. 79. Captured property to be secured for public service. 
 Art 80. Dealing in captured or abandoned property. 
 Art. 81. Relieving, corresponding with, or aiding the enemy. 
 Art. 82. Spies. 
 {/) Miscellaneous crimes and offenses 
 
 Art. 83. Military property willful or negligent loss, damage, 
 
 or wrongful disposition. 
 Art. 84. Waste or unlawful disposition of military property 
 
 issued to soldiers. 
 Art. 85. Drunk on duty. 
 Art. 86. Misbehavior of sentinel. 
 Art. 87. Personal interest in sale of provisions. 
 Art. 88. Intimidation of persons bringing provisions. 
 Art. 89. Good order to be maintained and wrongs redressed. 
 Art. 90. Provoking speeches or gestures. 
 Art. 91. Dueling. 
 Art. 92. Murder rape. 
 Art. 93. Various crimes. 
 Art. 94. Frauds against the Government. 
 Art. 95. Conduct unbecoming an officer and gentleman. 
 Art. 96. General article. 
 
 IV. COURTS OF INQUIRY: 
 
 Art. 97. When and by whom ordered. 
 
 Art. 98. Composition. 
 
 Art. 99. Challenges. 
 
 Art. 100. Oath of members and recorder. 
 
 Art. 101. Powers ; procedure. 
 
 Art 102. Opinion on merits of case. 
 
 Art. 103. Record of proceedings how authenticated. 
 
 489 
 
APPENDIX 1. 
 
 V. MISCELLANEOUS 
 Art. 104. 
 Art. 105. 
 Art. 106. 
 Art. 107. 
 Art. 108. 
 Art. 109. 
 Art. 110. 
 Art. 111. 
 Art. 112. 
 Art. 113. 
 Art. 114. 
 Art. 115. 
 Art. 116, 
 
 Art. 117. 
 
 Art. 118. 
 Art. 119. 
 
 Art. 120. 
 Art. 121. 
 
 PROVISIONS : 
 
 Diselipinary powers of commanding officers. 
 Injuries to property redress of. 
 Arrest of deserters by civil officials. 
 Soldiers to make good time lost. 
 Soldiers separation from the service. 
 Oatli of enlistment. 
 
 Certain articles to he read arid explained. 
 Copy of record of trial. 
 
 Effects of deceased persons disposition of. 
 Inquests. 
 
 Authority to administer oaths. 
 Appointment of reporters and interpreters. 
 Powers of assistant trial judge advocate and of 
 assistant defense counsel. 
 Removal of civil suits. 
 Officers separation from service. 
 Rank and precedence among Regulars, Militia, 
 and Volunteers. 
 
 Command when different corps or commands hap- 
 pen to join. 
 Complaints of wrongs. 
 
 NUMBERING OF ARTICLES OF WAR CODE OF 1920 AND EARLIER 
 
 CODES. 
 
 The present Articles of War are herein referred to as the Code 
 of 1920. 
 
 (a) Code of 1920 and code of 191. 
 
 The Code of 1920 retains the numbering of the Articles of 
 War contained in the code of 1916, except that: 
 
 (1) Article 29 of the code of 1916 is the second para- 
 
 graph of article 28 of the code of 1920. 
 
 (2) Article 29 of the code of 1920 is new. (" Court to 
 
 announce action.") 
 
 (3) Article 50-J of code of 1920 is new. (" Review; re- 
 
 hearing.") 
 
 NOTE. The following articles contain new matter of substance not 
 in Articles of 1916 or omit similar matter which was therein : 
 
 2 
 
 21 
 
 38 
 
 67 
 
 94 
 
 4 
 
 23 
 
 40-43 
 
 C8-70 
 
 104 
 
 5 
 
 24 
 
 45-50 
 
 75 
 
 112 
 
 6 
 
 27 
 
 50i 
 
 76 
 
 116 
 
 8 
 
 28-33 
 
 52 
 
 81 
 
 119 
 
 11-19 
 
 36 
 
 66 
 
 93 
 
 
 490 
 
THE ARTICLES OF WAR. 
 
 Articles not appearing in the above list are either identical with the 
 corresponding articles iu the Code of 1916 or merely differ in details 
 not affecting the substance (e. g., the word " trial " has been inserted 
 in several sections before the words " judge advocate " for the sake 
 of clarity). 
 
 (b) The relationship of the numbering of the articles in the 
 code of 1916 to the prior code of 1874 and its various amend- 
 ments is shown in the following table : 
 
 TABLE SHOWING NUMBERS OF ARTICLES IN THE CODE OF 
 1874 AND AMENDMENTS (OLD CODE), AND OF CORRESPOND- 
 ING ARTICLES IN THE CODE OF 1916. 
 
 ouo CODE: AND CODE OF i9ic. 
 
 Old 
 number. 
 
 Code of 
 1916. 
 
 Old 
 number. 
 
 Code of 
 1916. 
 
 Old 
 number. 
 
 Code of 
 1916. 
 
 Old 
 
 number. 
 
 Code of 
 1916. 
 
 1 
 
 
 H 
 
 61 
 
 63 
 
 2 
 
 96 
 
 43 
 
 2 
 3 
 
 4 
 5 
 
 109,110 . 
 55 
 108 
 56 
 
 33 
 34 
 
 35 
 36 
 
 61 
 61 
 61 
 
 64 
 65 
 66 
 67 
 
 2 
 69 
 69 
 71 
 
 97 
 
 98 
 99 
 
 100 
 
 42 
 41 
 118 
 44 
 
 6 
 
 56 
 
 37 
 
 
 68 
 
 72 
 
 101 
 
 
 7 
 8 
 9 
 10 
 
 57 
 57 
 79 
 
 38 
 39 
 40 
 41 
 
 41, 85 
 86 
 61 
 75 
 
 69 
 70 
 71 
 172 
 
 73 
 70 
 70 
 8 
 
 102 
 103 
 104 
 105 
 
 40 
 39 
 46 
 48 
 
 11 
 
 
 42 
 
 75 
 
 173 
 
 8 
 
 106 
 
 48 
 
 12 
 13 
 
 14 
 
 56 
 56 
 56 
 
 43 
 44 
 45 
 
 76 
 77 
 81 
 
 74 
 
 '75 
 76 
 
 11 
 5 
 
 107 
 108 
 109 
 
 48 
 48 
 46 
 
 15 
 16 
 17 
 M 
 19 
 20 
 21 
 
 83 
 
 84 
 84 
 87 
 62 
 G3 
 64 
 
 46 
 47 
 
 48 
 49 
 50 
 51 
 52 
 
 81 
 
 58 
 107 
 28 
 29,60 
 59 
 
 77 
 
 78 
 79 
 181 
 182 
 183 
 84 
 
 4 
 4 
 16 
 6,9,13 
 6,9 13 
 13 14 
 19 
 
 111 
 112 
 113 
 114 
 115 
 116 
 117 
 
 51 
 50 
 
 35 
 111 
 97 
 98 
 100 
 
 22 
 
 66 
 
 53 
 
 
 85 
 
 19 
 
 118 
 
 101 
 
 23 
 
 24 
 
 67 
 
 68 
 
 54 
 55 
 
 89,105 
 89 105 
 
 86 
 87 
 
 82 
 
 119 
 120 
 
 102 
 103 
 
 25 
 26 
 27 
 28 
 29 
 30 
 31 
 
 90 
 91 
 91 
 91 
 121 
 121 
 61 
 
 56 
 57 
 58 
 59 
 60 
 61 
 62 
 
 88 
 78 
 92,93 
 74 
 2,94 
 95 
 93,96 
 
 88 
 89 
 90 
 91 
 92 
 93 
 95 
 
 18 
 21 
 17 
 25 
 19 
 20,70 
 31 
 
 121 
 122 
 124 
 125 
 126 
 127 
 128 
 
 27 
 120 
 119 
 112 
 112 
 112 
 110 
 
 * Old articles 72, 73, 75, 81, 82, and 83 were replaced by the act of Mar. 2. 1913 (37 Stat., 723), 
 effective July 1, 1913. 
 
 NOTE. The Code of 1920 (except arts. 2, 23, and 45, which took 
 effect on June 4, 1920) becomes effective on February 4, 1921. 
 
 ARTICLES OF WAR. 
 
 These new Articles of War comprise, as above stated, the substance 
 of the former Articles of War, as revised by the act approved August 
 29, 1916 (39 Stat 619), referred to as the Code of 1916, as amended 
 by the acts of Congress approved July 9, 1918 (40 Stat. 882), with 
 reference to articles 52, 53, and 57; February 28, 1919 (40 Stat. 
 
 491 
 
APPENDIX 1. 
 
 1211), with reference to article 50; and November 19, 1919 (41 Stat 
 356), with reference to article 112; all of which were repealed by the 
 present code (see sec. 4, Chap. II, act of June 4,1920; 41 Stat. 812). 
 
 The existing amendments to the Code of 1916 as set forth in the 
 acts approved July 9, 1918 (arts. 52, 53, 57), February 28, 1919 (art 
 50), and November 19, 1919 (art. 112), are printed in italics, and the 
 changes made by the Code of 1920 are printed in bold-faced type. 
 The matter existing as contained in the Code of 1916 is printed in 
 the ordinary roman type. 
 
 Where matter appearing in a former article has been omitted in the 
 new article, reference is made thereto in a note following the new 
 article, and where the new article is so changed in substance or form 
 that it is impossible clearly to indicate the changes in this matter, the 
 old article, or as much of it as necessary, is reproduced in the note. It 
 is therefore possible in every case where the former article, as it existed 
 immediately prior to the taking effect of the Code of 1920, is not given 
 in a note, to reconstruct the same by omitting the matter in bold-faced 
 type in the new article and making the changes to the remaining text 
 called for by the note. 
 
 The article numbers in the new code correspond to those of the Code 
 of 1916, except that, as above stated, article 29, Code of 1916, is in 
 new article 28, and articles 29 and 50J, Code of 1920, are entirely 
 new. 
 
 An index follows the text of the articles. 
 
 An Act To amend an Act entitled "An Act for making further and 
 more effectual provision for the national defense, and for other 
 purposes," approved June 3, 1916, and to establish military justice. 
 
 Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled. 
 
 CHAPTER II. 
 
 The articles included in this section shall bo known as the 
 Articles of War and shall at all times and in all places govern 
 the armies of the United States. 
 
 I. PRELIMINARY PROVISIONS. 
 
 ARTICLE 1. DEFINITIONS. The following words when used 
 in these articles shall be construed in the sense indicated in 
 this article, unless the context shows that a different sense is 
 intended, namely : 
 
 (a) The word "officer" shall be construed to refer to a 
 commissioned officer ; 
 
 492 
 
THE ARTICLES OF WAR. ART. 2 
 
 (b) The word "soldier" shall be construed as including 
 a noncommissioned officer, a private, or any other enlisted 
 man; 
 
 (c) The word " company " shall be understood as includ- 
 ing a troop or battery ; and 
 
 (d) The word "battalion" shall be understood as includ- 
 ing a squadron. 
 
 ART. 2. PERSONS SUBJECT TO MILITARY LAW. The follow- 
 ing persons are subject to these articles and shall be under- 
 stood as included in the term " any person subject to military 
 law," or " persons subject to military law," whenever used in 
 these articles : Provided, That nothing contained in this Act, 
 except as specifically provided in Article 2, subparagraph 
 (c), shall be construed to apply to any person under the 
 United States "naval jurisdiction unless otherwise specifically 
 provided by law. 
 
 (a) All officers, members of the Army Nurse Corps, warrant 
 officers, Army field clerks, field clerks Quartermaster Corps, and 
 soldiers belonging to the Regular Army of the United States ; 
 all volunteers, from the dates of their muster or acceptance 
 into the military service of the United States; and 
 all other persons lawfully called, drafted, or ordered into, or 
 to duty or for training in, the said service, from the dates 
 they are required by the terms of the call, draft or order to 
 obey the same ; 
 
 (b) Cadets; 
 
 (c) Officers and soldiers of the Marine Corps when de- 
 tached for service with the armies of the United States by 
 order of the President: Provided, That an officer or soldier 
 of the Marine Corps when so detached may be tried by mili- 
 tary court-martial for an offense committed against the laws 
 for the government of the naval service prior to his detach- 
 ment, and for an offense committed against these articles he 
 may be tried by a naval court-martial after such detachment 
 ceases ; 
 
 (d) All retainers to the camp and all persons accompany- 
 ing or serving with the armies of the United States without 
 the territorial jurisdiction of the United States, and in time 
 of war all such retainers and persons accompanying or serv- 
 ing with the armies of the United States in the field, both 
 
 21358 20 32 
 
ART. 3 APPENDIX 1. 
 
 within and without the territorial jurisdiction of the United 
 States, though not otherwise subject to these articles; 
 
 (e) All persons under sentence adjudged by courts- 
 martial ; 
 
 (f ) All persons admitted into the Regular Army Soldiers' 
 Home at Washington, District of Columbia. 
 
 This article became effective on June 4, 1920. 
 
 II. COURTS-MARTIAL. 
 
 ART. 3. COURTS-MARTIAL CLASSIFIED. Courts-martial shall 
 be of three kinds, namely : 
 First, general courts-martial; 
 Second, special courts-martial; and 
 Third, summary courts-martial. 
 
 A. COMPOSITION. 
 
 ART. 4% WHO MAY SERVE ON COURTS-MARTIAL. All officers 
 in the military service of the United States, and officers of 
 the Marine Corps when detached for service with the Army 
 by order of the President, shall be competent to serve on 
 courts-martial for the trial of any persons who may law- 
 fully be brought before such courts for trial. When appoint- 
 ing courts-martial the appointing authority shall detail as mem- 
 bers thereof those officers of the command who, in his opinion, 
 are best qualified for the duty by reason of age, training, experi- 
 ence, and judicial temperament; and officers having less than 
 two years' service shall not, if it can be avoided without mani- 
 fest injury to the service, be appointed as members of courts- 
 martial in excess of the minority membership thereof. 
 
 ART. 5. GENERAL COURTS- MARTIAL. General courts-martial 
 may consist of any number of officers not less than five. 
 
 Art. 5, Code of 1916, read following word " officers " : " from five to thirteen, 
 Inclusive; but they shall not consist of les%. than thirteen, when that number 
 can be convened without manifest injury to the service." 
 
 ART. 6. SPECIAL COURTS-MARTIAL. Special courts-martial 
 may consist of tiny number of officers not less than three. 
 
 Art. 6, Code of 1916, read following word " officers " : " from three to five, 
 inclusive." 
 
 ART. 7, SUMMARY COURTS-MARTIAL. A summary court- 
 martial shall consist of one officer. 
 
 494 
 
THE ARTICLES OF WAR. ART. 10 
 
 B. BY WHOM APPOINTED. 
 
 ART. 8. GENERAL, COURT-MARTIAL. The President of the 
 United States, the commanding officer of a territorial division 
 or department, the Superintendent of the Military Academy, 
 the commanding officer of an army, an army corps, a division, 
 or a separate brigade, and, when empowered by the President, 
 the commanding officer of any district or of any force or body 
 of troops may appoint general courts-martial ; but when any 
 such commander is the accuser or the prosecutor of the per- 
 son or persons to be tried, the court shall be appointed by su- 
 perior competent authority, and no officer shall be eligible to 
 sit as a member of such court when he is the accuser or a wit- 
 ness for the prosecution. 
 
 The authority appointing 1 a general court-martial shall detail 
 as one of the members thereof a law member, who shall be an 
 officer of the Judge Advocate General's Department, except that 
 when an officer of that department is not available for the pur- 
 pose the appointing authority shall detail instead an officer of 
 some other branch of the service selected by the appointing au- 
 thority as specially qualified to perform the duties of law mem- 
 ber. The law member, in addition to his duties as a member, 
 shall perform such, other duties as the President may by regula- 
 lations prescribe. 
 
 ART. 9. SPECIAL COURTS-MARTIAL. The commanding officer 
 of a district, garrison, fort, camp, or other place where 
 troops are on duty, and the commanding officer of a brigade, 
 regiment, detached battalion, or other detached command 
 may appoint special courts-martial ; but when any such com- 
 manding officer is the accuser or the prosecutor of the person 
 or persons to be tried, the court shall be appointed by su- 
 perior authority, and may in any case be appointed by su- 
 perior authority when by the latter deemed desirable; and 
 no officer shall be eligible to sit as a member of such court 
 when he is the accuser or a witness for the prosecution. 
 
 ART. 10. SUMMARY COURTS-MARTIAL. The commanding of- 
 ficer of a garrison, fort, camp, or other place where troops 
 are on duty, and the commanding officer of a regiment, de- 
 tached battalion, detached company, or other detachment may 
 appoint summary courts-martial; but such summary courts- 
 
ART. 11 APPENDIX 1. 
 
 martial may in any case be appointed by superior authority 
 when by the latter deemed desirable : Provided, That when 
 but one officer is present with a command he shall be the sum- 
 mary court-martial of that command and shall hear and de- 
 termine cases brought before him. 
 
 ART. 11. APPOINTMENT OF TRIAL JUDGE ADVOCATES AND 
 COUNSEL. For each general or special court-martial the 
 authority appointing the court shall appoint a trial judge 
 advocate and a defense counsel, and for each general court- 
 martial one or more assistant trial judge advocates and one 
 or more assistant defense counsel when necessary: Provided, 
 however, That no officer who has acted as member, trial judge 
 advocate, assistant trial judge advocate, defense counsel, or as- 
 sistant defense counsel in any case shall subsequently act as staff 
 judge advocate to the reviewing or confirming authority upon 
 the same case. 
 
 c. JURISDICTION. 
 
 ART. 12. GENERAL COURTS-MARTIAL. General courts-mar- 
 tial shall have power to try any person subject to military 
 law for any crime or offense made punishable by these arti- 
 cles, and any other person who by the law of war is subject 
 to trial by military tribunals : Provided, That no officer shall 
 be brought to trial before a general court-martial appointed 
 by the Superintendent of the Military Academy: Provided 
 further, That the officer competent to appoint a general court- 
 martial for the trial of any particular case may, when in his 
 judgment the interest of the service shall so require, cause any 
 case to be tried by a special court-martial notwithstanding the 
 limitations upon the jurisdiction of the special court-martial as 
 to offenses set out in article 13; but the limitations upon jurisdic- 
 tion as to persons and upon punishing power set out in said ar- 
 ticle shall be observed. 
 
 ART. 13. SPECIAL COURTS-MARTIAL. Special courts-martial 
 shall have power to try any person subject to military law 
 for any crime or offense not capital made punishable by 
 these articles: Provided, That the President may, by regu- 
 lations, except from the jurisdiction of special courts-martial 
 any class or classes of persons subject to military law. 
 
 496 
 
THE ARTICLES OF WAR. ART. 15 
 
 Special courts-martial shall not have power to adjudge 
 confinement in excess of six months, nor to adjudge forfei- 
 ture of more than two-thirds pay per month for a period of not 
 exceeding six months. 
 
 Art. 13, Code of 1916, read as follows : 
 
 " ART. 13. SPECIAL COURTS-MARTIAL. Special courts-martial shall have 
 power to try any person subject to military law, except an officer, for any 
 crime or offense not capital made punishable by these articles : Provided, That 
 the President may, by regulations, which he may modify from time to time, 
 except from the jurisdiction of special courts-martial any class or classes of 
 persons subject to military law. 
 
 " Special courts-martial shall not have power to adjudge dishonorable dis- 
 charge, nor confinement in excess of six months, nor to adjudge forfeiture of 
 more than six months' pay." 
 
 ART. 14. SUMMARY COURTS-MARTIAL. Summary courts- 
 martial shall have power to try any person subject to mili- 
 tary law, except an officer, a member of the Army Nurse Corps, 
 a warrant officer, an Army field clerk, a field clerk Quartermaster 
 Corps, a cadet, or a soldier holding the privileges of a certifi- 
 cate of eligibility to promotion, for any crime or offense not 
 capital made punishable by these articles: Provided, That 
 noncommissioner officers shall not, if they object thereto, be 
 brought to trial before a summary court-martial without 
 the authority of the officer competent to bring them to trial 
 before a general court-martial : Provided further, That the 
 President may, by regulations, except from the jurisdiction 
 of summary courts-martial any class or classes of persons 
 subject to military law. 
 
 Summary courts-martial shall not have power to adjudge 
 confinement in excess of one month, restriction to limits for 
 more than three months, or forfeiture or detention of more than 
 two-thirds of one month's pay. 
 
 The words " which he may modify from time to time," which followed the 
 word " regulations," in the second proviso of the first paragraph, have been 
 omitted. The second paragraph of art. 14, Code of 1916, read as follows : 
 
 " Summary courts-martial shall not have power to adjudge confinement In 
 excess of three months, nor to adjudge the forfeiture of more than three 
 months' pay : Provided, That when the summary court officer is also the com- 
 manding officer no sentence of such summary court-martial adjudging confine- 
 ment at hard labor or forfeiture of pay, or both, for a period in excess of one 
 month shall be carried into execution until the same shall have been approved 
 by superior authority." 
 
 ART. 15. JURISDICTION NOT EXCLUSIVE. The provisions 
 of these articles conferring jurisdiction upon courts-martial 
 shall not be construed as depriving military commissions, 
 
 497 
 
ART. 1G APPENDIX 1. 
 
 provost courts, or other military tribunals of concurrent 
 jurisdiction in respect of offenders or offenses that by statute 
 or by the law of war be triable by such- military commis- 
 sions, provost courts, or other military tribunals. 
 
 The word " lawfully " appeared in the former article, preceding the word 
 " triable." 
 
 ART. 16. OFFICERS ; HOW TRIABLE. Officers shall be triable 
 only by general and special courts-martial, and in no case 
 shall an officer, when it can be avoided, be tried by officers 
 inferior to him in rank. 
 
 D. PKOCEDUEE.. 
 
 ART. 17. THAI JUDGE ADVOCATE TO PROSECUTE; COUNSEL 
 TO DEFEND. The trial judge advocate of a general or spe- 
 cial court-martial shall prosecute in the name of the United 
 States, and shall, under the direction of the court, prepare 
 the record of its proceedings. The accused shall have the 
 right to be represented in his defense before the court by coun- 
 sel of his own selection, civil counsel if he so provides, or mili- 
 tary if such counsel be reasonably available, otherwise by the 
 defense counsel duly appointed for the court pursuant to article 
 11. Should the accused have counsel of his own selection, the 
 defense counsel and assistant defense counsel, if any, of the court, 
 shall, if the accused so desires, act as his associate counsel. 
 
 Article 17, Code of 1916, read as follows : 
 
 " ART. 17. JUDGE ADVOCATE TO PROSECUTE. The judge advocate of a gen- 
 eral or special court-martial shall prosecute in the name of the United States, 
 and shall, under the direction of the court, prepare the record of its proceed- 
 ings. The accused shall have the right to be represented before the court by 
 counsel of his own selection for his defense, if such counsel be reasonably 
 available, but should he, for any reason, be unrepresented by counsel, the 
 judge advocate shall from time to time throughout the proceedings advise the 
 accused of his legal rights." 
 
 ART. 18. CHALLENGES. Members- of a general or special 
 court-martial may be challenged by the accused or the trial 
 judge advocate for cause stated to the court. The court shall 
 determine the relevancy and validity thereof, and shall not. 
 receive a challenge to more than one member at a time. Chal- 
 lenges by the trial judge advocate shall ordinarily be presented 
 and decided before those by the accused are offered. Each side 
 
 493 
 
THE ARTICLES OF WAR. ART. 19 
 
 shall be entitled to one peremptory challenge ; but the law mem- 
 ber of the court shall not be challenged except for cause. 
 
 The words " but only " appeared in the former article, preceding the words 
 " for cause " in the first sentence. 
 
 ART. 19. OATHS. The trial judge ach r ocate of a general or 
 special court-martial shall administer to the members of the 
 court, before they proceed upon any trial, the following oath 
 or affirmation : " You, A. B., do swear (or affipm) that you 
 will well and truly try and determine, according to the evi- 
 dence, the matter now before you, between the United States 
 of America and the person to be tried, and that you will duly 
 administer justice, without partiality, favor, or affection, 
 according to the provisions of the rules and articles for the 
 government of the armies of the United States, and if any 
 doubt should arise, not explained by said articles, then ac- 
 cording to your conscience, the best of your understanding, 
 and the custom of war in like cases ; and you do further swear 
 (or affirm) that you will not divulge the findings or sentence 
 of the court until they shall be published by the proper au- 
 thority or duly announced by the court, except to the trial 
 judge advocate and assistant trial judge advocate; neither 
 will you disclose or discover the vote or opinion of any par- 
 ticular member of the court-martial upon a challenge or upon 
 the findings or sentence, unless required to give evidence 
 thereof as a witness by a court of justice in due course of law. 
 So help you God." 
 
 When the oath or affirmation has been administered to tha 
 members of a general or special court-martial, the president 
 of the court shall administer to the trial judge advocate and 
 to each assistant trial judge advocate, if airy, an oath or 
 affirmation in the following form : " You A. B., do swear (or 
 affirm) that you will faithfully and impartially perform the 
 duties of a trial judge advocate, and will not divulge the find- 
 ings or sentence of the court to any but the proper authority 
 until they shall be duly disclosed. So help you God." 
 
 All persons who give evidence before a court-martial shall 
 be examined on oath or affirmation in the following form: 
 " You swear (or affirm) that the 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." 
 
 499 
 
ART. 20 APPENDIX 1. 
 
 Every reporter of the proceedings of a court-martial shall, 
 before entering upon his duties, make oath or affirmation in 
 the following form: " You swear (or affirm) that you will 
 faithfully perform the duties of reported to this court. So 
 help you God." 
 
 Every interpreter in the trial of any case before a court- 
 martial shall, before entering upon his duties, make oath or 
 affirmation in the following form: " You swear (or affirm) 
 that you will truly interpret in the case now in hearing. So 
 help you God." 
 
 In case of affirmation the closing sentence of adjuration 
 will be omitted. 
 
 The words " by the same," concluded the first sentence of the second para- 
 graph of the former article. 
 
 ART. 20. CONTINUANCES. A court-martial may, for rea- 
 sonable cause, grant a continuance to either party for such 
 time and as often as may appear to be just. 
 
 ART. 21. REFUSAL OR FAILURE TO PLEAD. When an accused 
 arraigned before a court-martial fails or refuses to plead, or 
 answers foreign to the purpose, or after a plea of guilty makes 
 a statement inconsistent with the plea, or when it appears to the 
 court that he entered a plea of guilty improvidently or through 
 lack of understanding of its meaning and effect, the court shall 
 proceed to trial and judgment as if he had pleaded not guilty. 
 
 Art 21, Code of 1916, read as follows : 
 
 " ART. 21. REFUSAL TO PLEAD. When the accused, arraigned before a court- 
 martial, from obstinacy and deliberate design stands mute or answers foreign 
 to the purpose, the court may proceed to trial and judgment as if he had 
 pleaded not guilty." 
 
 ART. 22. PROCESS TO OBTAIN WITNESSES. Every trial judge 
 advocate of a general or special court-martial and every sum- 
 mary court-martial shall have power to issue the like process 
 to compel witnesses to appear and testify which courts of the 
 United States, having criminal jurisdcition, may lawfully 
 issue ; but such process shall run to any part of the United 
 States, its Territories, and possessions. 
 
 ART. 23. REFUSAL TO APPEAR OR TESTIFY. Every person not 
 subject to military law who, being duly subprcnaed to appear 
 as a witness before any military court, commission, court of 
 inquiry, or board, or before any officer, military or civil, 
 
 500 
 
THE ARTICLES OF WAR. ART. 24 
 
 designated to take a deposition to be read in evidence before 
 such court, commission, court of inquiry, or board, willfully 
 neglects or refuses to appear, or refuses to qualify as a wit- 
 ness, 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 per- 
 son shall be punished on information in the district court of 
 the United States or in a court of original criminal jurisdic- 
 tion in any of the territorial possessions of the United States, 
 jurisdiction being hereby conferred upon such courts for 
 such purpose; and it shall be the duty of the United States 
 district attorney or the officer prosecuting for the Govern- 
 ment in any such court of original criminal jurisdiction, on 
 the certification of the facts to him by the military court, 
 commission, court of inquiry, or board, to file an information 
 against and prosecute the person so offending, and the pun- 
 ishment of such person, on conviction, shall be a fine of not 
 more than $500 or imprisonment not to exceed six months, or 
 both, at the discretion of the court: Provided, That the fees 
 of such witness and his mileage, at the rates allowed to wit- 
 nesses attending the courts of the United States, shall be duly 
 paid or tendered said witness, such amounts to be paid out 
 of the appropriation for the compensation of witnesses: 
 Provided further, That every person not subject to military law, 
 who before any court-martial, military tribunal, or military 
 board, or in connection with, or in relation to any proceedings 
 or investigation before it or had under any of the provisions of 
 this act, is guilty of any of the acts made punishable as offenses 
 against public justice by any provision of chapter 6 of the Act 
 of March 4, 1909, entitled " An Act to codify, revise, and amend 
 the penal laws of the United States " (volume 35, United States 
 Statutes at Large, page 1088), or any amendment thereof, shall 
 be punished as therein provided. 
 
 This article became effective on June 4, 1920. 
 
 ART. 24. COMPULSORY SELF-INCRIMINATION PROHIBITED. 
 No witness before a military court, commission, court of in- 
 quiry, or board, or before any officer conducting an investiga- 
 tion, or before any officer, military or civil, designated to take 
 a deposition to be read in evidence before a military court, 
 
 501 
 
ART. 25 APPENDIX 1* 
 
 commission, court of inquiry, or board, or before an officer 
 conducting an investigation, shall be compelled to incriminate 
 himself or to answer any question the answer to which nuiy 
 tend to incriminate him, or to answer any question not ma- 
 terial to the issue when such answer might tend to degrade 
 him. 
 
 Art. 24, Code of 1916, read as follows : 
 
 "AnT. 24. COMPULSORY SELF-INCBIMINATION PROHIBITED. No witness be- 
 fore a military court, commission, court of Inquiry, or board, or before any 
 officer, military or civil, designated to take a deposition to be read in evidence 
 before a military court, commission, court of inquiry, or board, shall be com- 
 pelled to incriminate himself or to answer any questions which may tend to 
 incriminate or degrade him." 
 
 ART. 25. DEPOSITIONS WHEN ADMISSIBLE. A duly au- 
 thenticated deposition taken upon reasonable notice to the 
 opposite party may be read in evidence before any military 
 court or commission in any case not capital, or in any pro- 
 ceeding before a court of inquiry or a military board, if 
 such deposition be taken when the witness resides, is found, 
 or is about to go beyond the State, Territory, or District in 
 which the court, commission, or board is ordered to sit, or 
 beyond the distance of one hundred miles from the place of 
 trial or hearing, or when it appears to the satisfaction of the 
 court, commission, board, or appointing authority that the 
 witness, by reason of age, sickness, bodily infirmity, im- 
 prisonment, or other reasonable cause, is unable to appenr 
 and testify in person at the place of trial or hearing : Pro- 
 vided, That testimony by deposition may be adduced for the 
 defense in capital cases. 
 
 ART. 26. DEPOSITIONS BEFORE WHOM TAKEN. Depositions 
 to be read in evidence before military courts, commissions, 
 courts of inqury. or military boards, or for other use in mili- 
 tary administration, may be taken before and authenticated 
 by any officer, military or civil, authorized by the laws of the 
 Tinted States or by the laws of the place where the deposition 
 is taken to administer oaths. 
 
 ART. 27. COURTS OF INQUIRY RECORDS OF, WHEN ADMIS- 
 SIBLE. The record of the proceedings of a court of in- 
 quiry may, with the consent of the accused, be read in evi- 
 dence before any court-martial or military commission in 
 any case not capital nor extending to the dismissal of an 
 
 502 
 
THE ARTICLES OF WAR. ART. 31 
 
 officer, and may also be read in evidence in any proceeding 
 before a court of inquiry or a military board: Provided, 
 That such evidence may be adduced by the defense in capital 
 cases or cases extending to the dismissal of an officer. 
 
 ART. 28. CERTAIN ACTS TO CONSTITUTE DESERTION. 
 Any officer who, having tendered his resignation and prior 
 to due notice of the acceptance of the same, quits his post or 
 proper duties without leave and with intent to absent him- 
 self permanently therefrom shall be deemed a deserter. 
 
 Any soldier who, without having first received a regular 
 discharge, again enlists in the Army, or in the militia when 
 in the service of the United States, or in the Navy or Marine 
 Corps of the United States, or in any foreign army, shall be 
 deemed to have deserted the service of the United States ; and 
 where the enlistment is in one of the forces of the United 
 States mentioned above, to have fraudulently enlisted therein. 
 
 Any person subject to military law who quits his organiza- 
 tion or place of duty with the intent to avoid hazardous duty or 
 to shirk important service shall be deemed a deserter. 
 
 The first paragraph is the same as art. 28, Code of 1916, except that the 
 former title of that article was " Resignation without acceptance does not 
 release officer." The second paragraph is the same as art. 29, Code of 1916. 
 The third paragraph is new. 
 
 ART. 29. COURT TO ANNOUNCE ACTION. Whenever* the 
 court has acquitted the accused upon all specifications and 
 charges, the court sJiall at once announce such result in open 
 court. Under such regulations as the President may prescribe, the 
 findings and sentence in other cases may be similarly announced. 
 
 ART. 30. CLOSED SESSIONS. Whenever a general or special 
 court-martial shall sit in closed session, the trial judge advo- 
 cate and the assistant trial judge advocate, if any, shall with- 
 draw ; and when their assistance in referring to the recorded 
 evidence is required, it shall be obtained in open court, and in 
 the presence of the accused and of his counsel, if there be any. 
 
 The words " their legal advice or " appeared in the former article, follow- 
 ing the word "when." 
 
 ART. 31. METHOD OF VOTING. Voting by members of a gen- 
 eral or special court-martial upon questions of challenge, on the 
 findings, and on the sentence shall be by secret written ballot. 
 The junior member of the court shall in each, case count the votes, 
 
 603 
 
ART. 31 APPENDIX 1. 
 
 which count shall be checked by the president, who will forth- 
 with announce the result of the ballot to the members of the 
 court. The law member of the court, if any, or if there be no 
 law member of the court, then the president, may rule in open 
 court upon interlocutory questions, other than challenges, aris- 
 ing during the proceedings : Provided, That unless such ruling 
 be made by the law member of the court if any member object 
 thereto the court shall be cleared and closed and the question 
 decided by a majority vote, viva voce, beginning with the junior 
 in rank: And provided further, That if any such ruling be 
 made by the law member of the court upon any interlocutory 
 question other than an objection to the admissibility of evidence 
 offered during the trial, and any member object to the ruling, 
 the court shall likewise be cleared and closed and the question 
 decided by a majority vote, viva voce, beginning with the junior 
 in rank : Provided further, however, That the phrase, " objec- 
 tion to the admissibility of evidence offered during the trial," 
 as used in the next preceding proviso hereof, shall not be con- 
 strued to include questions as to the order of the introduction 
 of witnesses or other evidence, nor of the recall of witnesses for 
 further examination, nor as to whether expert witnesses shall be 
 admitted or called upon any question, nor as to whether the 
 court shall view the premises where an offense is alleged to have 
 been committed, nor as to the competency of witnesses, as, for 
 instance, of children, witnesses alleged to be mentally incom- 
 petent, and the like, nor as to the insanity of accused, or 
 whether the existence of mental disease or mental derangement 
 on the part of the accused has become an issue in the trial, or 
 accused required to submit to physical examination, nor whether 
 any argument or statement of counsel for the accused or of the 
 trial judge advocate is improper, nor any ruling in a case involv- 
 ing military strategy or tactics or correct military action; but, 
 upon all these questions arising on the trial, if any member ob- 
 ject to any ruling of the law member, the court shall be cleared 
 and closed and the question decided by majority vote of the 
 members in the manner aforesaid. 
 
 Art. 31, Code of 1916, read as follows : 
 
 " ART. 31. ORDER OF VOTING. Members of a general or special court-martial, 
 in giving their votes, shall begin with the junior in rank." 
 
 504 
 
THE ARTICLES OF WAR. ART. 35 
 
 ART. 32. CONTEMPTS. A military tribunal may punish as 
 for contempt any person who uses any menacing words, signs, 
 or gestures in its presence, or who disturbs its proceedings 
 by any riot or disorder : Provided, That such punishment shall 
 in no case exceed one month's confinement, or a fine of $100, or 
 both, 
 
 Art. 32, Code of 1916, read as follows : 
 
 "ART. 32. CONTEMPTS. A court-martial may punish at discretion, subject 
 to the limitations contained in article fourteen, any person who uses any 
 menacing words, signs, or gestures in its presence, or who disturbs its pro- 
 ceedings by any riot or disorder." 
 
 ART. 33. RECORDS GENERAL COURTS-MARTIAL. Each gen- 
 eral court-martial shall keep a separate record of its pro- 
 ceedings in the trial of each case brought before it, and such 
 record shall be authenticated by the signature of the presi- 
 dent and the trial judge advocate; but in case the record can 
 not be authenticated by the president and trial judge advocate, 
 by reason of the death, disability, or absence of either or both 
 of them, it shall be signed by a member in lieu of the president 
 and by an assistant trial judge advocate, if there be one, in 
 lieu of the trial judge advocate; otherwise by another member 
 of the court. 
 
 Art. 33, Code of 1916, following the semicolon, read as follows: 
 " but in case the record can not be authenticated by the judge advocate, by 
 reason of his death, disability, or absence, it shall be signed by the president 
 and an assistant judge advocate, if any ; and if there be no assistant Judge 
 advocate, or in case of his death, disability, or absence, then by the president 
 and one other member of the court." 
 
 ART. 34. RECORDS SPECIAL AND SUMMARY COURTS-MAR- 
 TIAL. Each special court-martial and each summary court- 
 martial shall keep a record of its proceedings, separate for 
 each case, which record shall contain such matter and be 
 authenticated in such manner as may be required by regu- 
 lations which the President may from time to time prescribe. 
 
 ART. 35. DISPOSITION OF RECORDS GENERAL COURTS-MAR- 
 TIAL. The trial judge advocate of each general court-mar- 
 tial shall, with such expedition as circumstances may permit, 
 forward to the appointing authority or to his successor in 
 command the original record of the proceedings of such 
 court in the trial of each case. All records of such proceed- 
 
 605 
 
ART. 36 APPENDIX 1. 
 
 ings shall, after having been acted upon, be transmitted to 
 the Judge Advocate General of the Army. 
 
 The -word " finally " appeared in the former article, preceding tiie word 
 " acted." 
 
 ART. 36. DISPOSITION or RECORDS SPECIAL AXD SUMMARY 
 COURTS-MARTIAL. After having been acted upon by the officer 
 appointing the court, or by the officer commanding for the 
 time being, the record of each trial by special court-martial 
 and a report of each trial by summary court-martial shall 
 be transmitted to such general headquarters as the President 
 may designate in regulations, there to be filed in the office 
 of the judge advocate. When no longer of use, records of 
 summary courts-martial may be destroyed. 
 
 The -words " special and " appeared in the former article, preceding the 
 word " summary " in the last sentence. 
 
 ART. 37. IRREGULARITIES EFFECT OF. The proceedings of 
 a court-martial shall not be held invalid, nor the findings or 
 sentence disapproved, in any case on the ground of improper 
 admission or rejection of evidence or for any error as to any 
 matter of pleading or procedure unless in the opinion of the 
 reviewing or confirming authority, after an examination of 
 the entire proceedings, it shall appear that the error coai- 
 plained of has injuriously affected the substantial rights of 
 an accused: Provided, That the act or omission upon which 
 the accused has been tried constitutes an offense denounced 
 and made punishable by one or more of these articles : Pro- 
 vided further, That the omission of the words " hard labor " 
 in any sentence of a court-martial adjudging imprisonment 
 or confinement shall not be construed as depriving the au- 
 thorities executing such sentence of imprisonment or confine- 
 ment of the power to require hard labor as a part of the 
 punishment in any case where it is authorized by the Execu- 
 tive order prescribing maximum punishments. 
 
 ART. 38. PRESIDENT MAY PRESCRIBE RULES. The President 
 may, by regulations, which he may modify from time to 
 time, prescribe the proceedure, including modes of proof, in 
 cases before courts-martial, courts of inquiry, military com- 
 missions, and other military tribunals, which regulations 
 shall, in so far as he shall deem practicable, apply the rules of 
 
 506 
 
THE ARTICLES OF WAR. ART. 4Q 
 
 evidence generally recognized in the trial of criminal cases in 
 the district courts of the United States: Provided, That noth- 
 ing contrary to or inconsistent with these articles shall be 
 so prescribed : Provided further, That all rules made in pur- 
 suance of this article shall be laid before the Congress 
 annually. 
 
 E. LIMITATIONS UPON PROSECUTIONS. 
 
 ART. 39. As TO TIME. Except for desertion committed in 
 time of war, or for mutiny or murder, no person subject to 
 military law shall be liable to be tried or punished by a 
 court-martial for any crime or offense committed more than 
 two years before the arraignment of such person : Provided, 
 That for desertion in time of peace or for any crime or offense 
 punishable under articles ninety-three and ninety-four of 
 this code the period of limitations upon trial and punishment 
 by court-martial shall be three years : Provided further, That 
 the period of any absence of the accused from the jurisdiction 
 of the United States, and also any period during which by 
 reason of some manifest impediment the accused shall not 
 have been amenable to military justice, shall be excluded in 
 computing the aforesaid periods of limitation : And provided 
 further, That this article shall not have the effect to authorize 
 the trial or punishment for any crime or offense barred by 
 the provisions of existing law. 
 
 ART. 40. As TO NUMBER. No person shall, without his con- 
 sent, be tried a second time for the same offense ; but no pro- 
 ceeding in which an accused has been found guilty by a court- 
 martial upon any charge or specification shall be held to be a 
 trial in the sense of this article until the reviewing and, if there 
 be one, the confirming authority shall have taken final action 
 upon the case. 
 
 No authority shall return a record of trial to any court-mar- 
 tial for reconsideration of 
 
 (a) An acquittal; or 
 
 (b) A finding of not guilty of any specification; or 
 
 (c) A finding of not guilty of any charge, unless the record 
 shows a finding of guilty under a specification laid under that 
 charge, which sufficiently alleges a violation of some article of 
 war; or 
 
 507 
 
ART. 41 APPENDIX 1. 
 
 (d) The sentence originally imposed, with a view to increasing 
 its severity, unless such sentence is less than the mandatory sen- 
 tence fixed by law for the offense or offenses upon which a convic- 
 tion has been had. 
 
 And no court-martial, in any proceedings on revision, shall re- 
 consider its finding or sentence in any particular in which a re- 
 turn of the record of trial for such reconsideration is hereinbefore 
 prohibited. 
 
 F. PUNISHMENTS. 
 
 ART. 41. CRUEL AND UNUSUAL PUNISHMENTS PROHIB- 
 ITED. Cruel and unusual punishments of every kind, including 
 flogging, branding, marking, or tattooing on the body, are 
 prohibited. 
 
 Art. 41, Code of 1916, read as follows : 
 
 " ART. 41. CERTAIN KINDS PROHIBITED. Punishment by flogging, or by 
 branding, marking, or tattooing on the body is prohibited." 
 
 ART. 42. PLACES OF CONFINEMENT WHEN LAWFUL. Ex- 
 cept for desertion in time of war, repeated desertion in time of 
 peace, and mutiny, no person shall under the sentence of a 
 court-martial be punished by confinement in a penitentiary 
 unless an act or omission of which he is convicted is recog- 
 nized as an offense of a civil nature and so punishable by pen- 
 itentiary confinement for more than one year by some statute of 
 the United States, of general application within the continental 
 United States, excepting section 289, Penal Code of the United 
 States, 1910, or by the law of the District of Columbia, or by way 
 of commutation of a death sentence, and unless, also the period 
 of confinement authorized and adjudged by such court-martial is 
 more than one year: Provided, That when a sentence of con- 
 finement is adjudged by a court-martial upon conviction of 
 two or more acts or omissions any one of which is punishable 
 under these articles by confinement in a penitentiary, the 
 entire sentence of confinement may be executed in a peni- 
 tentiary: Provided further, That penitentiary confinement 
 hereby authorized may be served in any penitentiary directly 
 or indirectly under the jurisdiction of the United States: 
 Provided further, That persons sentenced to dishonorable 
 discharge and to confinement not in a penitentiary shall be 
 confined in the United States Disciplinary Barracks or else- 
 
 508 
 
THE ARTICLES OF WAR. ART. 45 
 
 where as the Secretary of War or the reviewing authority 
 may direct, but not in a penitentiary. 
 
 The language between the words " offense of a civil nature " and the first 
 proviso in Art. 42, Code of 1916, read as follows : " by some statute of the 
 United States, or at the common law as the same exists in the District of 
 Columbia, or by way of commutation of a death sentence, and unless, also, 
 the period of confinement authorized and adjudged by such court-martial is 
 one year or more : " 
 
 ART. 43. DEATH SENTENCE WHEN LAWFUL. No person 
 shall, by general court-martial, be convicted of an offense for 
 which the death penalty is made mandatory by law, nor sen- 
 tenced to suffer death, except by the -concurrence of all the 
 members of said court-martial present at the time the vote is 
 taken, and for an offense in these articles expressly made 
 punishable by death ; nor sentence to life imprisonment, nor to 
 confinement for more than ten years, except by the concurrence 
 of three-fourths of all of the members present at the time the 
 vote is taken. All other convictions and sentences, whether 
 by general or special court-martial, may be determined by a 
 two-thirds vote of those members present at the time the 
 vote is taken. All other questions shall be determined by a ma- 
 jority vote. 
 
 Art. 43, Code of 1916, read as follows : 
 
 " ART. 43. DEATH SENTENCE WHEN LAWFUL. No person shall, by general 
 court-martial, be convicted of an offense for which the death penalty is made 
 mandatory by law, nor sentenced to suffer death, except by the concurrence 
 of two-thirds of the members of said court-martial and for an offense in these 
 articles expressly made punishable by death. All other convictions and sen- 
 tences, whether by general or special court-martial, may be determined by a 
 majority of the members present." 
 
 ART. 44. COWARDICE; FRAUD ACCESSORY PENALTY. When 
 an officer is dismissed from the service for cowardice or fraud, 
 the crime, punishment, name, and place of abode of the de- 
 linquent shall be published in the newspapers in and about the 
 camp and in the State from which the offender came or where 
 he usually resides; and after such publication it shall be 
 scandalous for an officer to associate with him. 
 
 ART. 45. MAXIMUM LIMITS. Whenever the punishment for 
 a crime or offense made punishable by these articles is left 
 to the discretion of the court-martial the punishment shall 
 not exceed such limit or limits as the President may from 
 time to time prescribe: Provided, That in time of peace the 
 period of confinement, in a penitentiary shall in no case exceed 
 
 21358 20 33 
 
 509 
 
ART. 46 APPENDIX 1. 
 
 the maximum period prescribed by the law which, under article 
 42 of these articles, permits confinement in a penitentiary, unless 
 in addition to the offense so punishable under such law the ac- 
 cused shall have been convicted at the same time of one or more 
 other offenses. 
 
 This article became effective on June 4, 1920. The words " In time of 
 peace " appeared in the former article, preceding the word " exceed." 
 
 O. ACTION BY APPOINTING OR SUPERIOR AUTHORITY. 
 
 ART. 46. ACTION BY CONVENING AUTHORITY. Under 
 such regulations as may be prescribed by the President every 
 record of trial by general court-martial or military commission 
 received by a reviewing or confirming authority shall be re- 
 ferred by him, before he acts thereon, to his staff judge advocate 
 or to the Judge Advocate General. No sentence of a court- 
 martial shall be carried into execution until the same shall 
 have been approved by the officer appointing the court or by 
 the officer commanding for the time being. 
 
 The former article was entitled, " Approval and execution of sentence." 
 
 ART. 47. POWERS INCIDENT TO POWER TO APPROVE. The 
 power to approve the sentence of a court-martial shall be 
 held to include: 
 
 (a) The power to approve or disapprove a rinding and to 
 approve only so much of a rinding of guilty of a particular 
 offense as involves a finding of guilty of a lesser included 
 offense when, in the opinion of the authority having power to 
 approve, the evidence of record requires a finding of only 
 the lesser degree of guilt ; and 
 
 (b) The power to approve or disapprove the whole or any 
 part of the sentence. 
 
 (c) The power to remand a case for rehearing, under the pro- 
 visions of article 5Q l / z . 
 
 ART. 48. CONFIRMATION WHEN REQUIRED. In addition to 
 the approval required by article forty-six, confirmation by 
 the President is required in the following cases before the 
 sentence of a court-martial is carried into execution, namely : 
 
 (a) Any sentence respecting a general officer; 
 
 (b) Any sentence extending to the dismissal of an officer, 
 except that in time of war a sentence extending to the dis- 
 
 510 
 
THE ARTICLES OF WAR. ART. 50 
 
 missal of an officer below the grade of brigadier general may 
 be carried into execution upon confirmation by the command- 
 ing general of the Army in the field or by the commanding 
 general of the territorial department or division : 
 
 (c) Any sentence extending to the suspension or dismissal 
 of a cadet; and 
 
 (d) Any sentence of death, except in the cases of persons 
 convicted in time of war of murder, rape, mutiny, desertion, 
 or as spies; and in such excepted cases a sentence of death 
 may be carried into execution, subject to the provisions of 
 article 50 1 / 2 , upon confirmation by the commanding general of 
 the Army in the field or by the commanding general of the 
 territorial department or division. 
 
 When the authority competent to confirm the sentence has 
 already acted .as the approving authority no additional con- 
 firmation by him is necessary. 
 
 ART. 49. POWERS INCIDENT TO POWER TO CONFIRM. The 
 power to confirm the sentence of a court-martial shall b? 
 held to include : 
 
 (a) The power to confirm or disapprove a finding, and to 
 confirm so much only of a finding of guilty of a particular 
 offense as involves a finding of guilty of a lesser included 
 offense when, in the opinion of the authority having power 
 to confirm, the evidence of record requires a finding of only 
 the lesser degree of guilt ; and 
 
 (b) The power to confirm or disapprove the whole or any 
 part of the sentence. 
 
 (c) The power to remand a case for rehearing, under the 
 provisions of article 50J. 
 
 ART. 50. MITIGATION or REMISSION OF SENTENCES. The 
 power to order the execution of the sentence adjudged by a 
 court-martial shall be held to include, inter alia, the power to 
 mitigate or remit the whole or any part of the sentence. 
 
 Any unexecuted portion of a sentence adjudged by a court- 
 martial may be mitigated or remitted by the military author- 
 ity competent to appoint, for the command, exclusive of pen- 
 itentiaries and the United States Disciplinary Barracks, 
 in which the person under sentence is held, a court of the 
 kind that imposed the sentence, and the same power may be 
 
 511 
 
ART. 50 \ APPENDIX 1. 
 
 exercised by superior military authority; but no sentence 
 approved or confirmed by the President shall be remitted or 
 mitigated by any other authority, and no approved 
 sentence of loss of -files by an officer shall be remitted or miti- 
 gated by any authority inferior to the President, except as 
 provided in the -fifty-second article. 
 
 When empowered by the President so to do, the command- 
 ing general of the Army in the field or the commanding gen- 
 eral of the territorial department or division, may approve 
 or confirm and commute (but not approve or confirm without 
 commuting), mitigate, or remit and then order executed as 
 commuted, mitigated, or remitted any sentence which under 
 these articles requires the confirmation of the President be- 
 fore the same may be executed. 
 
 The power of remission on mitigation shall extend to all 
 uncollected forfeitures adjudged by sentence of court- 
 martial. 
 
 The last sentence of the former article read : " The po^er of remission and 
 mitigation shall extend to all uncollected forfeitures adjudged by sentence of 
 a court-martial." 
 
 ART. 50J. REVIEW; REHEARING. The Judge Advocate 
 General shall constitute, in his office, a board of review consist- 
 ing of not less than three officers of the Judge Advocate Gen- 
 eral's Department. 
 
 Before any record of trial in which there has been adjudged 
 a sentence requiring approval or confirmation by the President 
 under the provisions of article 46, article 48, or article 51 is 
 submitted to the President, such record shall be examined by the 
 board of review. The board shall submit its opinion, in writing, 
 to the Judge Advocate General, who shall, except as herein other- 
 wise provided, transmit the record and the board's opinion, with 
 his recommendations, directly to the Secretary of War for the 
 action of the President. 
 
 Except as herein provided, no authority shall order the execu- 
 tion of any other sentence of a general court-martial involving 
 the penalty of death, dismissal not suspended, dishonorable dis- 
 charge not suspended, or confinement in a penitentiary, unless 
 and until the board of review shall, with the approval of the 
 Judge Advocate General, have held the record of trial upon 
 which such sentence is based legally sufficient to support the 
 
 512 
 
THE ARTICLES OF WAR. ART. 
 
 sentence ; except that the proper reviewing or confirming author- 
 ity may upon his approval of a sentence involving dishonorable 
 discharge or confinement in a penitentiary order its execution if it 
 is based solely upon findings of guilty of a charge or charges 
 and a specification or specifications to which the accused has 
 pleaded guilty. When the board of review, with the approval 
 of the Judge Advocate General, holds the record in a case in 
 which the order of execution has been withheld under the pro- 
 visions of this paragraph legally sufficient to support the findings 
 and sentence, the Judge Advocate General shall so advise the 
 reviewing or confirming authority from whom the record was 
 received, who may thereupon order the execution of the sen- 
 tence. When in a case in which the order of execution has 
 been withheld under the provisions of this paragraph, the board 
 of review holds the record of trial legally insufficient to support 
 the findings or sentence, either in whole or in part, or that 
 errors of law have been committed injuriously affecting the sub- 
 stantial rights of the accused, and the Judge Advocate General 
 concurs in such holding of the board of review, such findings 
 and sentence shall be vacated in whole or in part in accord with 
 such holding and the recommendations of the Judge Advocate 
 General thereon, and the record shall be transmitted through 
 the proper channels to the convening authority for a rehearing 
 or such other action as may be proper. In the event that the 
 Judge Advocate General shall not concur in the holding of the 
 board of review, the Judge Advocate General shall forward all 
 the papers in the case, including the opinion of the board of 
 review and his own dissent therefrom, directly to the Secretary 
 of War for the action of the President, who may confirm the 
 action of the reviewing authority or confirming authority below, 
 in whole or in part, with or without remission, mitigation, or 
 commutation, or may disapprove, in whole or in part, any find- 
 ing of guilty, and may disapprove or vacate the sentence, in 
 whole or in part. 
 
 When the President or any reviewing or confirming authority 
 disapproves or vacates a sentence the execution of which has not 
 theretofore been duly ordered, he may authorize or direct a re- 
 hearing. Such rehearing shall take place before a court com- 
 posed of officers not members of the court which first heard the 
 
 513 
 
ART. 50 J APPEITDIX L. 
 
 case. Upon such rehearing the accused shall not be tried for any 
 offense of which he was found not guilty by the first court, and 
 no sentence in excess of or more severe than the original sen- 
 tence shall be enforced unless the sentence be based upon a find- 
 ing of guilty of an offense not considered upon the merits in the 
 original proceeding : Provided, That such rehearing shall be had 
 in all cases where a finding and sentence have been vacated by 
 reason of the action of the board of review approved by the Judge 
 Advocate General holding the record of trial legally insufficient 
 to support the findings or sentence or that errors of law have 
 been committed injuriously affecting the substantial rights of the 
 accused, unless, in accord with such action, and the recommen- 
 dations of the Judge Advocate General thereon, the findings or 
 sentence are approved in part only, or the record is returned for 
 revision, or unless the case is dismissed by order of the reviewing 
 or confirming authority. After any such rehearing had on the 
 order of the President, the record of trial shall, after examination 
 by the board of review, be transmitted by the Judge Advocate 
 General, with the board's opinion and his recommendations, 
 directly to the Secretary of War for the action of the President. 
 Every record of trial by general court-martial, examination of 
 which by the board of review is not hereinbefore in this article 
 provided for, shall nevertheless be examined in the Judge Advo- 
 cate General's Office; and if found legally insufficient to support 
 the findings and sentence, in whole or in part, shall be examined 
 by the board of review, and the board, if it also finds that such 
 record is legally insufficient to support the findings and sentence, 
 in whole or in part, shall, in writing, submit its opinion to the 
 Judge Advocate General, who shall transmit the record and the 
 board's opinion, with his recommendations, directly to the Secre- 
 tary of War for the action of the President. In any such case 
 the President may approve, disapprove, or vacate, in whole or in 
 part, any findings of guilty, or confirm, mitigate, commute, re- 
 mit, or vacate any sentence, in whole or in part, and direct the 
 execution of the sentence as confirmed or modified, and he may 
 restore the accused to all rights affected by the findings and sen- 
 tence, or part thereof, held to be invalid; and the President's 
 necessary orders to this end shall be binding upon all depart- 
 ments and officers of the Government. 
 
 514 
 
THE ARTICLES OF WAR. ART. 52 
 
 Whenever necessary, the Judge Advocate General may consti- 
 tute two or more boards of review in his office, with equal powers 
 and duties. 
 
 Whenever the President deems such action necessary, he may 
 direct the Judge Advocate General to establish a branch of his 
 office, under an Assistant Judge Advocate General, with any dis- 
 tant command, and to establish in such branch office a board of 
 review, or more than one. Such Assistant Judge Advocate Gen- 
 eral and such board or boards of review shall be empowered to 
 perform for that command, under the general supervision of the 
 Judge Advocate General, the duties which the Judge Advocate 
 General and the board or boards of review in his office would 
 otherwise be required to perform in respect of all cases involving 
 sentences not requiring approval or confirmation by the Presi- 
 dent. 
 
 ART. 51. SUSPENSION OF SENTENCES OF DISMISSAL OR DEATH. 
 The authority competent to order the execution of a sentence 
 of dismissal of an officer or a sentence of death may suspend 
 such sentence until the pleasure of the President be known, 
 and in case of such suspension a copy of the order of suspen- 
 sion, together with a copy of the record of trial, shall im- 
 mediately be transmitted to the President. 
 
 ART. 52. SUSPENSION OF SENTENCES. The authority compe- 
 tent to order the execution of the sentence of a court-martial 
 may, at the time of the approval of such sentence, suspend 
 the execution, in whole or in part, of any such sentence as 
 does not extend to death, and may restore the person under 
 sentence to duty during such suspension; and the Secretary of 
 War or the commanding officer holding general court-martial 
 jurisdiction over any such offender, may at any time thereafter, 
 while the sentence is being served, suspend the execution, in 
 whole or in part, of the balance of such sentence and restore the 
 person under sentence to duty during such suspension. A sen- 
 tence, or any part thereof, which has been so suspended may 
 be remitted, in whole or in part, except in cases of persons 
 confined in the United /States Disciplinary Barracks or its 
 branches, by the officer who suspended the same, by his suc- 
 cessor in office, or by any officer exercising appropriate court- 
 martial jurisdiction over the command in which the person 
 
 515 
 
ART. 53 APPENDIX 1. 
 
 under sentence may be serving at the time, and, subject to the 
 foregoing exceptions, the same authority may vacate the 
 order of suspension at any time and order the execution of 
 the sentence or the suspended part thereof in so far as the 
 same shall not have been previously remitted, subject to like 
 power of suspension. The death or honorable discharge of a 
 person under a suspended sentence shall operate as a complete 
 remission of any unexecuted or unremitted part of such sen- 
 tence. 
 
 ART. 53. EXECUTION OR REMISSION CONFINE- 
 MENT IN DISCIPLINARY BARRACKS. When a sen- 
 tence of dishonorable discharge has been suspended until the 
 soldier's release from confinement , the execution or remission 
 of any part of his sentence shall, if the soldier ~be confined in 
 the United States Disciplinary Barracks, or any branch 
 thereof, be directed by the Secretary of War. 
 
 III. PUNITIVE ARTICLES. 
 A. ENLISTMENT; MUSTER; RETURNS. 
 
 ART. 54. FRAUDULENT ENLISTMENT. Any person who 
 shall procure himself to be enlisted in the military service of 
 the United States by means of willful misrepresentation or 
 concealment as to his qualifications for enlistment, and shall 
 receive pay or allowances under such enlistment, shall be pun- 
 ished as a court-martial may direct. 
 
 ART. 55. OFFICER MAKING UNLAWFUL ENLISTMENT. Any 
 officer who knowingly enlists or musters into the military 
 service any person whose enlistment or muster in is prohibited 
 by law, regulations, or orders shall be dismissed from the 
 service or suffer such other punishment as a court-martial 
 may direct. 
 
 ART. 56. FALSE MUSTER. Any officer who knowingly 
 makes a false muster of man or animal, or who signs or directs 
 or allows the signing of any muster roll knowing the same to 
 contain a false muster or false statement as to the absence or 
 pay of an officer or soldier, or who wrongfully takes money 
 or other consideration on mustering in a regiment, company, 
 
 616 
 
THE ARTICLES OF WAB. ART. 59 
 
 or other organization, or on signing muster rolls, or who 
 knowingly musters as an officer or soldier a person who is not 
 such officer or soldier, shall be dismissed from the service and 
 suffer such other punishment as a court-martial may direct. 
 
 This article is the same as the last sentence of art. 56, Code of 1916. The 
 portion of the former article not retained read as follows : 
 
 " ART. 56. MUSTER ROLLS FALSE MUSTER. At every muster of a regi- 
 ment, troop, battery, or company the commanding officer thereof shall give to 
 the mustering officer certificates, signed by himself, stating how long absent 
 officers have been absent and the reasons of their absence. And the com- 
 manding officer of every troop, battery, or company shall give like certificates, 
 stating how long absent noncommissioned officers and private soldiers have 
 been absent and the reasons of their absence. Such reasons and time of 
 absence shall be inserted in the muster rolls opposite the names of the respec- 
 tive absent officers and soldiers, and the certificates, together with the muster 
 rolls, shall be transmitted by the mustering officer to the Department of War 
 as speedily as the distance of the place and muster will admit." 
 
 ART. 57. FALSE RETURNS OMISSION TO RENDER RETURNS. 
 Every officer whose duty it is to render to the War Depart- 
 ment or other superior authority a return of the state of the 
 troops under his command, or of the arms, ammunition, 
 clothing, funds, or other property thereunto belonging, who 
 knowingly makes a false return thereof shall be dismissed 
 from the service and suffer such other punishment as a court- 
 martial may direct. And any officer who, through neglect or 
 design, omits to render such return shall be punished as a 
 court-martial may direct. 
 
 This article is the same as art. 57, Code of 1916, except that the first sen- 
 tence of the former article, reading as follows, has been omitted: 
 
 "ART. 57. FALSE RETURNS OMISSION TO RENDER RETURNS. Every officer 
 commanding a regiment, an independent troop, battery, or company, or a 
 garrison shall, in the beginning of every month, transmit through the proper 
 channels, to the Department of War, an exact return of the same." 
 
 B. DESERTION; ABSENCE WITHOUT LEAVE. 
 
 ART. 58. DESERTION. Any person subject to military law 
 who deserts or attempts to desert the service of the United 
 States shall, if the offense be committed in time of war, suffer 
 death or such other punishment as a court-martial may di- 
 rect, and, if the offense be committed at any other time, any 
 punishment, excepting death, that a court-martial may direct. 
 
 ART. 59. ADVISING OR AIDING ANOTHER TO DESERT. Any per- 
 son subject to military law who advises or persuades or 
 knowingly assists another to desert the service of the United 
 
 517 
 
ART. 60 APPENDIX 1. 
 
 States shall, if the offense be committed in time of war, suffer 
 death or such other punishment as a court-martial may di- 
 rect, and, if the offense be committed at any other time, any 
 punishment, excepting death, that a court-martial may direct. 
 
 ART. 60. ENTERTAINING A DESERTER. Any officer who, after 
 having discovered that a soldier in his command is a deserter 
 from the military or naval service or from the Marine Corps, 
 retains such deserter in his command without informing su- 
 perior authority or the commander of the organization to 
 which the deserter belongs, shall be punished as a court- 
 martial may direct. 
 
 ART. 61. ABSENCE WITHOUT LEAVE. Any person subject to 
 military law who fails to repair at the fixed time to the 
 properly appointed place of duty, or goes from the same 
 without proper leave, or absents himself from his command, 
 guard, quarters, station, or camp without proper leave, shall 
 be punished as a court-martial may direct, 
 
 C. DISRESPECT ; INSUBORDINATION ; MUTINY. 
 
 ART. 62. DISRESPECT TOWARD THE PRESIDENT, VICE PRESI- 
 DENT, CONGRESS, SECRETARY or WAR, GOVERNORS, LEGISLA- 
 TURES. Any officer who uses contemptuous or disrespectful 
 words against the President, Vice President, the Congress of 
 the United States, the Secretary of War, or the governor or 
 legislature of any State, Territory, or other possession of the 
 United States in which he is quartered shall be dismissed 
 from the service or suffer such other punishment as a court- 
 martial may direct. Any other person subject to military 
 law who so offends shall be punished as a court-martial may 
 direct. 
 
 ART. 63. DISRESPECT TOWARD SUPERIOR OFFICER. Any per- 
 son subject to military law who behaves himself with disre- 
 spect toward his superior officer shall be punished as a court- 
 martial may direct. 
 
 ART. 64. ASSAULTING OR WILLFULLY DISOBEYING SUPERIOR 
 OFFICER. Arty person subject to military law who, on any 
 pretense whatsoever, strikes his superior officer or draws or 
 lifts up any weapon or offers any violence against him, 
 
 518 
 
THE ARTICLES OF WAR. ART. 68 
 
 being in the execution of his office, or willfully disobeys any 
 lawful command of his superior officer, shall suffer death or 
 such other punishment as a court-martial may direct. 
 
 ART. 65. INSUBORDINATE CONDUCT TOWARD NONCOMMIS- 
 SIONED OFFICER. Any soldier who strikes or assaults, or 
 who attempts or threatens to strike or assault, or willfully 
 disobeys the lawful order of a warrant officer or a noncom- 
 missioned officer while in the execution of his office, or uses 
 threatening or insulting language, or behaves in an insub- 
 ordinate or disrespectful manner toward a warrant officer or 
 a noncommissioned officer while in the execution of his office, 
 shall be punished as a court-martial may direct. 
 
 ART. 66. MUTINY OR SEDITION. Any person subject to 
 military law who attempts to create or who begins, excites, 
 causes, or joins in any mutiny or sedition in any company, 
 party, post, camp, detachment, guard, or other command 
 shall suffer death or such other punishment as a court-martial 
 may direct. 
 
 ART. 67. FAILURE TO SUPPRESS MUTINY OR SEDITION. Any 
 officer or soldier who, being present at any mutiny or sedition, 
 does not use his utmost endeavor to suppress the same, or 
 knowing or having reason to believe that a mutiny or sedition 
 is to take place, does not without delay give information 
 thereof to his commanding officer shall suffer death or such 
 other punishment as a court-martial may direct. 
 
 ART. 68. QUARRELS; FRAYS; DISORDERS. All officers, mem- 
 bers of the Army Nurse Corps, warrant officers, Army field clerks, 
 field clerks, Quartermaster Corps, and noncommissioned officers 
 have power to part and quell all quarrels, frays, and dis- 
 orders among persons subject to military law and to order 
 officers who take part in the same into arrest, and other per- 
 sons subject to military law who take part in the same into 
 arrest or confinement, as circumstances may require, until 
 their proper superior officer is acquainted therewith. And 
 whosoever, being so ordered, refuses to obey such officer, 
 nurse, band leader, warrant officer, field clerk, or noncommis- 
 sioned officer, or draws a weapon upon or otherwise threatens 
 or does violence to him, shall be punished as a court-martial 
 may direct. 
 
 519 
 
ART. 69 APPENDIX 1. 
 
 ART. 69. ARREST OR CONFINEMENT. Any person subject to 
 military law charged with crime or with a serious offense 
 under these articles shall be placed in confinement or in 
 arrest as circumstances may require; but when charged with a 
 minor offense only such person shall not ordinarily be placed in 
 confinement. Any person placed in arrest under the provi- 
 sions of this article shall thereby be restricted to his bar- 
 racks, quarters, or tent, unless such limits shall be enlarged 
 by proper authority. Any officer or cadet who breaks his 
 arrest or who escapes from confinement, whether before or 
 after trial or sentence and before he is set at liberty by 
 proper authority, shall be dismissed from the service or 
 suffer such other punishment as a court-martial may direct; 
 and any other person subject to military law who escapes 
 from confinement or who breaks his arrest, whether before 
 or after trial or sentence and before he is set at liberty by 
 proper authority, shall be punished as a court-martial may 
 direct. 
 
 Art. 69, Code of 1916, reads as follows : 
 
 " ART. 69. ARREST OR CONFINEMENT OP ACCUSED PERSONS. An officer charged 
 with crime or with a serious offense under these articles shall be placed in 
 arrest by the commanding officer, and in exceptional cases an officer so charged 
 may be placed in confinement by the same authority. A soldier charged with 
 crime or with a serious offense under these articles shall be placed in confine 
 ment, and when charged with a minor offense he may be placed in arrest. Any 
 other person subject to military law charged with crime or with a serious 
 offense under these articles shall be placed in confinement or in arrest, as 
 circumstances may require ; and when charged with a minor offense such 
 person may be placed in arrest. Any person placed in arrest under the provi- 
 sions of this article shall thereby be restricted to his barracks, quarters, or 
 tent, unless such limits shall be enlarged by proper authority. Any officer 
 who breaks his arrest or who escapes from confinement before he is set at 
 liberty by proper authority shall be dismissed from the service or suffer such 
 other punishment as a court-martial may direct, and any other person subject 
 to military law who escapes from confinement or who breaks his arrest before 
 he is set at liberty by proper authority shall be punished as a court-martial 
 may direct." 
 
 ART. 70. CHARGES; ACTION UPON. Charges and specifica- 
 tions must be signed by a person subject to military law, and 
 under oath either that he has personal knowledge of, or has 
 investigated, the matters set forth therein, and that the same 
 are true in fact, to the best of his knowledge and belief. 
 
 No charge will be referred for trial until after a thorough and 
 impartial investigation thereof shall have been made. This in- 
 
 520 
 
THE ARTICLES OF WAR. ART. 70 
 
 vestigation will include inquiries as to the truth of the matter 
 set forth in said charges, form of charges, and what disposition 
 of the case should be made in the interest of justice and disci- 
 pline. At such investigation full opportunity shall be given to 
 the accused to cross-examine witnesses against him if they are 
 available and to present anything he may desire in his own 
 behalf either in defense or mitigation, and the investigating 
 officer shall examine available witnesses requested by the ac- 
 cused. If the charges are forwarded after such investigation, 
 they shall be accompanied by a statement of the substance of 
 the testimony taken on both sides. 
 
 Before directing the trial of any charge by general court- 
 martial the appointing authority will refer it to his staff judge 
 advocate for consideration and advice. 
 
 When any person subject to military law is placed in arrest 
 or confinement immediate steps will be taken to try the person 
 accused or to dismiss the charge and release him. Any officer 
 who is responsible for unnecessary delay in investigating or 
 carrying the case to a final conclusion shall be punished as a 
 court-martial may direct. When a person is held for trial by 
 general court-martial the commanding officer will, within eight 
 days after the accused is arrested or confined, if practicable, 
 forward < the charges to the officer exercising general court- 
 martial jurisdiction and furnish the accused a copy of such 
 charges. If the same be not practicable, he will report to su- 
 perior authority the reasons for delay. The trial judge advocate 
 will cause to be served upon the accused a copy of the charges 
 upon which trial is to be had, and a failure so to serve such 
 charges will be ground for a continuance unless the trial be had 
 on the charges furnished the accused as hereinbefore provided. 
 In time of peace no person shall, against his objection, be 
 brought to trial before a general court-martial within a 
 period of five days subsequent to the service of charges 
 upon him. 
 
 Art. 70, Code of 1916, read as follows : 
 
 " ART. 70. INVESTIGATION OF AND ACTION UPON CHARGES. No person put In 
 arrest shall be continued in confinement more than 8 days, or until such 
 time as a court-martial can be assembled. When any person 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 8 days after his arrest, 
 and that he is brought to trial within ten days thereafter, unless the necessi- 
 
 521 
 
ART. 71 APPENDIX 1. 
 
 ties 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 person be not brought to trial, as 
 herein required, the arrest shall cease. But persons released from arrest, 
 under the provisions of this article, may be tried, whenever the exigencies of 
 the service shall permit, within twelve months after such release from arrest : 
 Provided, That in time of peace no person shall, against his objection, be 
 brought to trial before a general court-martial within a period of five days 
 subsequent to the service of charges upon him." 
 
 ART. 71. REFUSAL TO RECEIVE AND KEEP PRISONERS. No pro- 
 vost marshal or commander of a guard shall refuse to re- 
 ceive or keep any prisoner committed to his charge by an 
 officer belonging to the forces of the United States, provided 
 the officer committing shall, at the time, deliver an account 
 in writing, signed by himself, of the crime or offense charged 
 against the prisoner. Any officer or soldier so refusing shall 
 be punished as a court-martial may direct. 
 
 ART. 72. REPORT or PRISONERS RECEIVED. Every com- 
 mander of a guard to whose charge a prisoner is committed 
 shall, within twenty-four hours after such confinement, or as 
 soon as he is relieved from his guard, report in writing to the 
 commanding officer the name of such prisoner, the offense 
 charged against him, and the name of the officer committing 
 him ; and if he fails to make such report, he shall be punished 
 as a court-martial may direct. 
 
 ART. 73. RELEASING PRISONER WITHOUT PROPER AUTHOR- 
 ITY. Any person subject to military law who, without 
 proper authority, releases any prisoner duly committed to his 
 charge, or who through neglect or design suffers any pris- 
 oner so committed to escape, shall be punished as a court- 
 martial may direct. 
 
 ART. 74. DELIVERY OF OFFENDERS TO CIVIL AUTHORITIES. 
 When any person subject to military law, except one who is 
 held by the military authorities to answer, or who is awaiting 
 trial or result of trial, or who is undergoing sentence for a 
 crime or offense punishable under these articles, is accused 
 of a crime or offense committed within the geographical 
 limits of the States of the Union and the District of Colum- 
 bia, and punishable by the laws of the land, the commanding 
 officer is required, except in time of war, upon application 
 duly made, to use his utmost endeavor to deliver over such 
 accused person to the civil authorities, or to aid the officers of 
 
 522 
 
THE ARTICLES OF WAR. ART. 76 
 
 justice in apprehending and securing him, in order that he 
 may be brought to trial. Any commanding officer who upon 
 such application refuses or willfully neglects, except in time 
 of war, to deliver over such accused person to the civil 
 authorities or to aid the officers of justice in apprehending 
 and securing him shall be dismissed from the service or 
 suffer such other punishment as a court-martial may direct. 
 When, under the provisions of this article, delivery is made 
 to the civil authorities of an offender undergoing sentence of 
 a court-martial, such delivery, if followed by conviction, shall 
 be held to interrupt the execution of the sentence of the court- 
 martial, and the offender shall be returned to military cus- 
 tody, after having answered to the civil authorities for his 
 oifense, for the completion of the said court-martial sentence. 
 
 E. WAR OFFENSES. 
 
 ART. 75. MISBEHAVIOR BEFORE THE ENEMY. Any officer or 
 soldier who, before the enemy, misbehaves himself, rims 
 away, or shamefully abandons or delivers up or by any mis- 
 conduct, disobedience, or neglect endangers the safety of any 
 fort, post, camp, guard, or other command which it is his 
 duty to defend, or speaks words inducing others to do the like, 
 or casts away his arms or ammunition, or quits his post or 
 colors to plunder or pillage, or by any means whatsoever oc- 
 casions false alarms in camp, garrison, or quarters, shall suf- 
 fer death or such other punishment as a court-martial may 
 direct. 
 
 The words preceding the word " fort " in art. 75, Code of 1916, were as 
 follows : " Any officer or soldier who misbehaves himself before the enemy, 
 runs away, or shamefully abandons or delivers up any " ; otherwise the same. 
 
 ART. 76. SUBORDINATES COMPELLING COMMANDER TO SUR- 
 RENDER. Any person subject to military law who compels or 
 attempts to compel any commander of any garrison, fort, post, 
 camp, guard, or other command, to give it up to the enemy 
 or to abandon it shall be punishable with death or such other 
 punishment as a court-martial may direct. 
 
 Art. 76, Code of 1916, read as follows : 
 
 "ART. 76. SUBORDINATES COMPELLING COMMANDER TO SCRRENDER. If any 
 commander of any garrison, fort, post, camp, guard, or other command is 
 compelled, by the officers or soldiers under his command, to give it up to the 
 enemy or to abandon it, the officers or soldiers so offending shall suffer death 
 or such other punishment as a court-martial may direct." 
 
ART. 77 APPENDIX l. 
 
 ART. 77. IMPROPER USE OF COUNTERSIGN. Any person sub- 
 ject to military law who makes known the parole or counter- 
 sign to any person not entitled to receive it according to the 
 rules and discipline of war. or gives a parole or countersign 
 different from that which he received, shall, if the offense be 
 committed in time of war, suffer death or such other punish- 
 ment as a court-martial may direct. 
 
 ART. 78. FORCING A SAFEGUARD. Any person subject to 
 military law who, in time of war, forces a safeguard shall 
 suffer death or such other punishment as a court-martial may 
 direct, 
 
 ART. 79. CAPTURED PROPERTY TO BE SECURED FOR PUBLIC 
 SERVICE. All public property taken from the enemy is the 
 property of the United States and shall be secured for the 
 service of the United States, and any person subject to mili- 
 tary law who neglects to secure such property or is guilty of 
 wrongful appropriation thereof shall be punished as a court- 
 martial may direct. 
 
 ART. 80. DEALING IN CAPTURED OR ABANDONED PROPERTY. 
 Any person subject to military law who buys, sells, trades, or 
 in any way deals in or disposes of captured or abandoned 
 property, whereby he shall receive or expect any profit, ben- 
 efit, or advantage to himself or to any other person directly 
 or indirectly connected with himself, or who fails whenever 
 such property comes into his possession or custody or within 
 his control to give notice thereof to the proper authority and 
 to turn over such property to the proper authority without 
 delay, shall, on conviction thereof, be punished by fine or im- 
 prisonment, or by such other punishment as a court-martial, 
 military commission, or other military tribunal may adjudge, 
 or by any or all of said penalties. 
 
 ART. 81. KELIEVING, CORRESPONDENCE WITH, OR AIDING THE 
 ENEMY. Whosoever relieves or attempts to relieve the enemy 
 with arms, ammunition, supplies, money, or other thing, or 
 knowingly harbors or protects or holds correspondence with 
 or gives intelligence to the enemy, either directly or indirectly, 
 shall suffer death or such other punishment as a court-martial 
 or military commission may direct. 
 
 ART. 82. SPIES. Any person who in time of war shall be 
 found lurking or acting as a spy in or about any of the fortifi- 
 
 624 
 
THE ARTICLES OF WAR. ART. 87 
 
 cations, posts, quarters, or encampments of any of the armies 
 of the United States, or elsewhere, shall be tried by a general 
 court-martial or by a military commission, and shall, on con- 
 viction thereof, suffer death. 
 
 F. MISCELLANEOUS CRIMES AND OFFENSES. 
 
 ART. 83. MILITARY PROPERTY WILLFUL OR NEGLIGENT LOSS, 
 DAMAGE, OR WRONGFUL DISPOSITION. Any person subject to 
 military law who willfully, or through neglect, suffers to be 
 lost, spoiled, damaged, or wrongfully disposed of, any mili- 
 tary property belonging to the United States shall make good 
 the loss or damage and suffer such punishment as a court- 
 martial may direct. 
 
 ART 84. WASTE OR UNLAWFUL DISPOSITION OF MILITARY 
 PROPERTY ISSUED TO SOLDIERS. Any soldier who sells or 
 wrongfully disposes of or willfully or through neglect in- 
 jures or loses any horse, arms, ammunition, accouterments, 
 equipment, clothing, or other property issued for use in the 
 military service, shall be punished as a court-martial may 
 direct. 
 
 ART. 85. DRUNK ON DUTY. Any officer who is found drunk 
 on duty shall, if the offense be committed in time of war, 
 be dismissed from the service and suffer such other punish- 
 ment as a court-martial may direct; and if the offense be 
 committed in time of peace, he shall be punished as a oourt- 
 martial may direct. Any person subject to military law, 
 except an officer, who is found drunk on duty shall be pun- 
 ished as a court-martial may direct. 
 
 ART. 86. MISBEHAVIOR OF SENTINEL. Any sentinel who is 
 found drunk or sleeping upon his post, or who leaves it 
 before he is regularly relieved, shall, if the offense be com- 
 mitted in time of war, suffer death or such other punishment 
 as a court-martial may direct; and if the offense be com- 
 mitted in time of peace, he shall suffer any punishment, ex- 
 cept death, that a court-martial may direct. 
 
 ART. 87. PERSONAL INTEREST IN SALE OF PROVISIONS. Any 
 officer commanding in any garrison, fort, barracks, camp, or 
 other place where troops of the United States may be serv- 
 
 21358 20 34 
 
 525 
 
ART. 88 APPENDIX t, 
 
 ing who, for his private advantage, lays any duty or imposi- 
 tion upon or is interested in the sale of any victuals or other 
 necessaries of life brought into such garrison, fort, barracks, 
 camp, or other place for the use of the troops, shall be dis- 
 missed from the service and suffer such other punishment as 
 a court-martial may direct. 
 
 ART. 88. INTIMIDATION or PERSONS BRINGING PROVISIONS. 
 Any person subject to military law who abuses, intimidates, 
 does violence to, or wrongfully interferes with any person 
 bringing provisions, supplies, or other necessaries to the 
 camp, garrison, or quarters of the forces of the United 
 States shall suffer such punishment as a court-martial may 
 direct. 
 
 ART. 89. GOOD ORDER TO BE MAINTAINED AND WRONGS RE- 
 DRESSED. All persons subject to military law are to behave 
 themselves orderly in quarters, garrison, camp, and on the 
 march ; and any person subject to military law who commits 
 any waste or spoil, or willfully destroys any property what- 
 soever (unless by order of his commanding officer), or com- 
 mits any kind of depredation or riot, shall be punished as 
 a court-martial may direct. Any commanding officer who, 
 upon complaint made to him, refuses or omits to see repara- 
 tion made to the party injured, in so far as the offender's pay 
 shall go toward such reparation, as provideo for in article 
 105, shall be dismissed from the service, or otherwise pun- 
 ished, as a court-martial may direct. 
 
 ART. 90. PROVOKING SPEECHES OR GESTURES. No person sub- 
 ject to military law shall use any reproachful or provoking 
 speeches or gestures to another; and any person subject to 
 military law who offends against the provisions of this 
 article shall be punished as a court-martial may direct. 
 
 ART. 91. DUELING. Any person subject to military law 
 who fights or promotes or is concerned in or connives at 
 fighting a duel, or who, having knowledge of a challenge sent 
 or about to be sent, fails to report the fact promptly to the 
 proper authority, shall, if an officer, be dismissed from the 
 service or suffer such other punishment as a court-martial 
 may direct; and if any other person subject to military law, 
 bhall suffer such punishment as a court-martial may direct. 
 
 526 
 
THE ARTICLES OF WAR. ART. 94 
 
 ART. 92. MURDER RAPE. Any person subject to military 
 law who commits murder or rape shall suffer death or impris- 
 onment for life, as a court-martial may direct ; but no person 
 shall be tried by court-martial for murder or rape committed 
 within the geographical limits of the States of the Union and 
 the District of Columbia in time of peace. 
 
 ART. 93. VARIOUS CRIMES. Any person subject to military 
 law who commits manslaughter, mayhem, arson, burglary, 
 housebreaking, robbery, larceny, embezzlement, perjury, for- 
 gery, sodomy, assault with intent to commit any felony, as- 
 sault with intent to do bodily harm with a dangerous weapon, 
 instrument, or other thing, or assault with intent to do bodily 
 harm, shall be punished as a court-martial may direct. 
 
 ART. 94. FRAUDS AGAINST THE GOVERNMENT. Any person 
 subject to -military law who makes or causes to be made any 
 claim against the United States or any officer thereof, know- 
 ing such claim to be false or fraudulent ; or 
 
 Who presents or causes to be presented to any person in the 
 civil or military service thereof, for approval or payment, 
 any claim against the United States, or any officer thereof, 
 knowing such claim to be false or fraudulent ; or 
 
 Who enters into any agreement or conspiracy to defraud 
 the United States by obtaining, or aiding others to obtain, the 
 allowance or payment of any false or fraudulent claim ; or 
 
 Who, for the purpose of obtaining, or aiding others to 
 obtain, the approval, allowance, or payment of any claim 
 against the United States or against any officer thereof, makes 
 or uses, or procures, or advises the making or use of, any 
 writing or other paper knowing the same to contain any false 
 or fraudulent statements ; or 
 
 Who, for the purpose of obtaining, or aiding others to ob- 
 tain, the approval, allowance, or payment of any claim- 
 against the United States or any officer thereof, makes or pro- 
 cures, or advises the making of, any oath to any fact or to any 
 writing or other paper knowing such oath to be false ; or 
 
 Who, for the purpose of obtaining, or aiding others to ob- 
 tain, the approval, allowance, or payment of any claim 
 against the United States or any officer thereof, forges or 
 counterfeits, or procures, or advises the forging or counter- 
 
 r>27 
 
ART. 94 APPENDIX 1. 
 
 feiting of any signature upon any writing or other paper, or 
 uses, or procures, or advises the use of any such signature, 
 knowing the same to be forged or counterfeited ; or 
 
 Who, having charge, possession, custody, or control of any 
 money or other property of the United States, furnished or 
 intended for the military service thereof, knowingly delivers, 
 or causes to be delivered, to any person having authority to 
 receive the same, any amount thereof less than that for which 
 he receives a certificate or receipt; or 
 
 Who, being authorized to make or deliver any paper certi- 
 fying the receipt of any property of the United States fur- 
 nished or intended for the military service thereof, makes or 
 delivers to any person such writing, without having full 
 knowledge of the truth of the statements therein contained 
 and with intent to defraud the United States ; or 
 
 Who steals, embezzles, knowingly and willfully misap- 
 propriates, applies to his own use or benefit, or wrongfully 
 or knowingly sells or disposes of any ordnance, arms, equip- 
 ments, ammunition, clothing, subsistence stores, mone}^ or 
 other property of the United States furnished or intended 
 for the military service thereof; or 
 
 Who knowingly purchases or receives in pledge for any ob- 
 ligation or indebtedness from any soldier, officer, or other per- 
 son who is a part of or employed in said forces or service, any 
 ordnance, arms, equipment, ammunition, clothing, sub- 
 sistence stores, or other property of the United States, such 
 soldier, officer, or other person not having lawful right to sell 
 or pledge the same ; 
 
 Shall, on conviction thereof, be punished by fine or impris- 
 onment, or by such other punishment as a court-martial may 
 adjudge, or by any or all of said penalties. And if any per- 
 son, being guilty of any of the offenses aforesaid while in the 
 military service of the United States, receives his discharge 
 or is dismissed from the service, he shall continue to be liable 
 to be arrested and held for trial and sentence by a court- 
 martial in the same manner and to the same extent as if he 
 had not received such discharge nor been dismissed. And if 
 any officer, being guilty, while in the military service of the 
 
 528 
 
THE ARTICLES OF WAR. ART. 99 
 
 United States, of embezzlement of ration savings, post exchange, 
 company, or other like funds, or of embezzlement of money or 
 other property intrusted to his charge by an enlisted man or men, 
 receives his discharge, or is dismissed, or is dropped from the 
 rolls, he shall continue to be liable to be arrested and held for 
 trial and sentence by a court martial in the same manner and to 
 the same extent as if he had not been so discharged, dismissed, 
 or dropped from the rolls. 
 
 ART. 95. CONDUCT UNBECOMING AN OFFICER AND GENTLE- 
 MAN. Any officer or cadet who is convicted of conduct un- 
 becoming an officer and a gentleman shall be dismissed from 
 the service. . 
 
 ART. 96. GENERAL ARTICLE. Though not mentioned in 
 these articles, all disorders and neglects to the prejudice of 
 good order and military discipline, all conduct of a nature 
 to bring discredit upon the military service, and all crimes or 
 offenses not capital, of which persons subject to military law 
 may be guilty, shall be taken cognizance of by a general or 
 special or summary court-martial, according to the nature 
 and degree of the offense, and punished at the discretion of 
 such court. 
 
 IV. COURTS OF INQUIRY. 
 
 ART. 97. WHEN AND BY WHOM ORDERED. A court of in- 
 quiry to examine into the nature of any transaction of or ac- 
 cusation or imputation against any officer or soldier may be 
 ordered by the President or by any commanding officer ; but 
 a court of inquiry shall not be ordered by any commanding 
 officer except upon the request of the officer or soldier whose 
 conduct is to be inquired into. 
 
 ART. 98. COMPOSITION. A court of injuiry shall consist of 
 three or more officers. For each court of inquiry the au- 
 thority appointing the court shall appoint a recorder. 
 
 ART. 99. CHALLENGES. Members of a court of inquiry 
 may be challenged by the party whose conduct is to be in- 
 quired into, but only for cause stated to the court. The court 
 shall determine the relevancy and validity of any challenge, 
 and shall not receive a challenge to more than one member at 
 
 529 
 
ART. 100 APPENDIX 1. 
 
 a time. The party whose conduct is being inquired into shall 
 have the right to be represented before the court by counsel 
 of his own selection, if such counsel be reasonably available. 
 
 ART. 100. OATH OF MEMBERS AND RECORDERS. The recorder 
 of a court of inquiry shall administer to the members the fol- 
 lowing oath: "You, A. B., do swear (or affirm) that you 
 will well and truly examine and inquire, according to the 
 evidence, into the matter now before you without partiality, 
 favor, affection, prejudice, or hope of reward. So help you 
 God." After which the president of the court shall admin- 
 ister to the recorder the following oath : " You, A. B., do 
 swear (or affirm) 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." 
 
 In case of affirmation the closing sentence of adjuration 
 will be omitted. 
 
 ART. 101. POWERS; PROCEDURE. A court inquiry and 
 the recorder thereof shall have the same power to summon 
 and examine witnesses as is given to courts-martial and the 
 trial judge advocate thereof. Such witnesses shall take the 
 same oath or affirmation that is taken by witnesses before 
 courts-martial. A reporter or an interpreter for a court of 
 inquiry shall, before entering upon his duties, take the oath 
 or affirmation required of a reporter or an interpreter for a 
 court-martial. The party whose conduct is being inquired 
 into or his counsel, if any, shall be permitted to examine and 
 cross-examine witnesses so as fully to investigate the cir- 
 cumstances in question. 
 
 ART. 102. OPINION ON MERITS OF CASE. A court of inquiry 
 shall not give an opinion on the merits of the case inquired 
 into unless specially ordered to do so. 
 
 ART. 103. RECORD OF PROCEEDINGS How AUTHENTICATED. 
 Each court of inquiry shall keep a record of its proceedings, 
 which shall be authenticated by the signature of the presi- 
 dent and the recorder thereof, and be forwarded to the con- 
 vening authority. In case the record can not be authenti- 
 cated by the recorder, by reason of his death, disability, or 
 
 530 
 
THE ARTICLES OF WAR. ART. 104 
 
 absence, it shall be signed by the president and by one other 
 member of the court. 
 
 V. MISCELLANEOUS PROVISIONS. 
 
 ART. 104. DISCIPLINARY POWERS OF COMMANDING OFFICERS. 
 Under such regulations as the President may prescribe, the 
 .commanding officer of any detachment, company, or higher 
 command may, for minor offenses, impose disciplinary pun- 
 ishments upon persons of his command without the interven- 
 tion of a court-martial, unless the accused demands trial by 
 court-martial. 
 
 The disciplinary punishments authorized by this article 
 may include admonition, reprimand, withholding of privi- 
 leges for not exceeding one week, extra fatigue for not exceed- 
 ing one week, restriction to certain specified limits for not ex- 
 ceeding one week, and hard labor without confinement for not 
 exceeding one week, but shall not include forfeiture of pay or 
 confinement under guard ; except that in time of war or grave 
 public emergency a commanding officer of the grade of brigadier 
 general or of higher grade may, under the provisions of this 
 article also impose upon an officer of his command below the 
 grade of a major a forfeiture of not more than one-half of such 
 officer's monthly pay for one month. A person punished under 
 authority of this article, who deems his punishment unjust 
 or disproportionate to the offense, may, through the proper 
 channel, appeal to the next superior authority, but may in 
 the meantime be required to undergo the punishment ad- 
 judged. The commanding officer who imposes the punish- 
 ment, his successor in command, and superior authority shall 
 have power to mitigate or remit any unexecuted portion of 
 the punishment. The imposition and enforcement of dis- 
 ciplinary punishment under authority of this article for any 
 act or omission shall not be a bar to trial by court-martial 
 for a crime or offense growing out of the same act or omis- 
 sion; but the fact that a disciplinary punishment has been 
 enforced may be shown by the accused upon trial, and when 
 
 531 
 
ART. 105 APPENDIX 1. 
 
 so shown shall be considered in determining the measure of 
 punishment to be adjudged in the event of a finding of guilty. 
 
 This article omits matter which appeared in the first paragraph of art. 104, 
 Code of 1916, as follows : After the words " President may prescribe," the 
 words " and which he may from time to time revoke, alter, or add to," and 
 after the words " minor offenses " the words " not denied by the accused." 
 The first sentence of the second paragraph of the former article read as fol- 
 lows: 
 
 " The disciplinary punishments authorized by this article may include admo- 
 nition, reprimand, withholding of privileges, extra fatigue, and restriction to 
 certain specified limits, but shall not include forfeiture of pay or confinement 
 under guard. 
 
 ART. 105. INJURIES TO PROPERTY REDRESS OF. Whenever 
 complaint is made to any commanding officer that damage 
 has been done to the property of any person or that his prop- 
 erty has been wrongfully taken by persons subject to military 
 law, such complaint shall be investigated by a board consist- 
 ing of any number of officers from one to three, which board 
 shall be convened by the commanding officer and shall have, 
 for the purpose of such investigation, power to summon wit- 
 nesses and examine them upon oath or affirmation, to receive 
 depositions or other documentary evidence, and to assess the 
 damages sustained against the responsible parties. The as- 
 sessment of damages made by such board shall be subject to 
 the approval of the commanding officer, and in the amount 
 approved by him shall be stopped against the pay of the of- 
 fenders. And the order of such commanding officer directing 
 stoppages herein authorized shall be conclusive on any dis- 
 bursing officer for the payment by him to the injured parties 
 of the stoppages so ordered. 
 
 Where the offenders can not be ascertained, but the or- 
 ganization or detachment to which they belong is known, 
 stoppages to the amount of damages inflicted may be made 
 and assessed in such proportion as may be deemed just upon 
 the individual members thereof who are shown to have been 
 present with such organization or detachment at the time the 
 damages complained of were inflicted as determined by the 
 approved findings of the board. 
 
 The words " person of " appeared in the title of the former article, preced- 
 ing the word " property." 
 
 ART. 106. ARREST OF DESERTERS BY CIVIL OFFICIALS. It shall 
 be lawful for any civil officer having authority under the 
 laws of the United States, or of any State, Territory, District, 
 
 532 
 
THE ARTICLES OF WAR. ART. 109 
 
 or possession of the United States, to arrest offenders, sum- 
 marily to arrest a deserter from the military service of the 
 United States and deliver him into the custody of the military 
 authorities of the United States. 
 
 ART. 107. SOLDIERS TO MAKE GOOD TIME LOST. Every soldier 
 who in an existing or subsequent enlistment deserts the service 
 of the United States or without proper authority absents 
 himself from his organization, station, or duty for more than 
 one day, or who is confined for more than one day under sen- 
 tence, or while awaiting trial and disposition of his case, if 
 the trial results in conviction, or through the intemperate use 
 of drugs or alcoholic liquor, or through disease or injury the 
 result of his own misconduct, renders himself unable for 
 more than one day to perform duty, shall be liable to serve, 
 after his return to a full-duty status, for such period as shall, 
 with the time he may have served prior to such desertion, un- 
 authorized absence, confinement, or inability to perform duty, 
 amount to the full term of that part of his enlistment period 
 which he is required to serve with his organization before be- 
 ing furloughed to the Army reserve. 
 
 ART. 108. SOLDIERS SEPARATION FROM THE SERVICE. No 
 enlisted man, lawfully inducted into the military service of 
 the United States, shall be discharged from said service with- 
 out a certificate of discharge, signed by a field officer of the 
 regiment or other organization to which the enlisted man 
 belongs or by the commanding officer when no such field officer 
 is present ; and no enlisted man shall be discharged from said 
 service before his term of service has expired, except by order 
 of the President, the Secretary of War, the commanding of- 
 ficer of a department, or by sentence of a general court- 
 martial. 
 
 ART. 109. OATH OF ENLISTMENT. At the time of his enlist- 
 ment every soldier shall take the following oath or affirma- 
 tion: "I, , do solemnly swear (or affirm) that I will 
 
 bear true faith and allegiance to the United States of Amer- 
 ica; that I will serve them honestly and faithfully against 
 all their enemies whomsoever ; and that I will obey the orders 
 of the President of the United States and the orders of the 
 officers appointed over me, according to the Rules and Arti- 
 
 533 
 
ART. HO APPENDIX 1. 
 
 cles of War." This oath or affirmation may be taken before 
 any officer. 
 
 ART. 110. CERTAIN ARTICLES TO BE READ AND EXPLAINED. 
 Articles 1, 2, and 29, 54 to 96, inclusive, and 104 to 109, in- 
 clusive, shall be read and explained to every soldier at the 
 time of his enlistment or muster in, or within six days there- 
 after, and shall be read and explained once every six months 
 to the soldiers of every garrison, regiment, or company in 
 the service of the United States. 
 
 ART. 111. COPY OF RECORD OF TRIAL. Every person tried 
 by a general court-martial shall, on demand therefor, made 
 by himself or by any person in his behalf, be entitled to a 
 copy of the record of the trial. 
 
 ART. 112. EFFECTS OF DECEASED PERSONS DISPOSITION OF. 
 In case of the death of any person subject to military law 
 the commanding officer of the place of command will permit 
 the legal representative or widow of the deceased, if present, 
 to take possession of all his effects then in camp or quarters ; 
 and if no legal representative or widow be present, the com- 
 manding officer shall direct a summary court to secure all 
 such effects, and said summary court shall have authority to 
 collect and receive any debts due decedent's estate by local 
 debtors and to pay the undisputed local creditors of decedent in 
 so far as any money belonging to the deceased which may come 
 into said summary court's possession under this article will per- 
 mit, taking receipts therefor for file with said court's final report 
 upon its transactions to the War Department; and as soon as 
 practicable after the collection of such effects said summary 
 court shall transmit such effects and any money collected, 
 through the Quartermaster Department, at Government 
 expense, to the widow or legal representative of the deceased, 
 if such l>e found by said court, or to the son, daughter, father, 
 provided the father has not abandoned the support of his 
 family, mother, brother, sister, or the next of kin in the 
 order named, if such be found by said court, or the beneficiary 
 named in the will of the deceased, if such be found by said 
 court, and said court shall thereupon make to the War De- 
 partment a full report of its transactions; but if there be 
 none of the persons herein-above named, or such persons or 
 
THE ARTICLES OF WAR. ART. 114 
 
 their addresses are not known to or readily a-scertainable 
 by said court, and the said court shall so find, said summary 
 court shall have authority to convert into cash, by public 
 or private sale, not earlier than thirty days after the death 
 of the deceased, all effects of deceased except sabers, insignia, 
 decorations, medals, watches, trinkets, manuscripts, and other 
 articles valued chiefly as keepsakes; and as soon as prac- 
 ticable after converting such effects into cash said summary 
 court shall deposit with the proper officer, to be designated 
 in regulations, any cash belonging to decedent's estate, and 
 shall transmit a receipt for such deposits, any will or other 
 papers of value belonging to the deceased, any sabers, in- 
 signia, decorations, medals, watches, trinkets, manuscripts, 
 and other articles valuable chiefly as keepsakes, together with 
 an inventory of the effects secured by said summary court, 
 and a full account of its transactions, to the War Department 
 for transmission to the Auditor for the War Department for 
 action as authorized by law in the settlement of accounts of 
 deceased officers and enlisted men of the Army. 
 
 The provisions of this article shall be applicable to inmates 
 of the United States Soldiers' Home who die in any United 
 States military hospital outside of the District of Columbia 
 where sent from the home for treatment. 
 
 ART. 113. INQUESTS. When at any post, fort, camp, or 
 other place garrisoned by the military forces of the United 
 States and under the exclusive jurisdiction of the United 
 States, any person shall have been found dead under cir- 
 cumstances which appear to require investigation, the com- 
 manding officer will designate and direct a summary court- 
 martial to investigate the circumstances attending the death ; 
 and, for this purpose, such summary court-martial shall have 
 power to summon witnesses and examine them upon oath or 
 affirmation. He shall promptly transmit to the post or other 
 commander a report of his investigation and of his findings 
 as to the cause of the death. 
 
 ART. 114. AUTHORITY TO ADMINISTER OATHS. Any judge 
 advocate or acting judge advocate, the president of a general 
 or special court-martial, any summary court-martial, the 
 trial judge advocate or any assistant trial judge advocate 
 
 535 
 
ART. 115 APPENDIX 1. 
 
 of a general or special court-martial, the president or the 
 recorder of a court of inquiry or of a military board, any 
 officer designated to take a deposition, any officer detailed to 
 conduct an investigation, and the adjutant of any command 
 shall have power to administer oaths for the purposes of 
 the administration of military justice and for other purposes 
 of military administration ; and in foreign places where the 
 Army may be serving shall have the general powers of a 
 notary public or of a consul of the United States in the 
 administration of oaths, the execution and acknowledgment 
 of legal instruments, the attestation of documents, and all 
 other forms of notarial acts to be executed by persons sub- 
 ject to military law. 
 
 ART. 115. APPOINTMENT or REPORTERS AND INTERPRETERS. 
 Under such regulations as the Secretary of War may from 
 time to time prescribe, the president of a court-martial or 
 military commission or a court of inquiry shall have power 
 to appoint a reporter, who shall record the proceedings of 
 and testimony taken before such court or commission and 
 may set down the same, in the first instance, in shorthand. 
 Under like regulations the president of a court-martial or 
 military commission, or court of inquiry, or a summary court, 
 may appoint an interpreter, who shall interpret for the court 
 or commission. 
 
 ART: 116. POWERS OF ASSISTANT TRIAL JUDGE ADVOCATE 
 AND OF ASSISTANT DEFENSE COUNSEL. An assistant trial 
 judge advocate of a general court-martial shall be competent 
 to perform any duty devolved by law, regulation, or the cus- 
 tom of the service upon the trial judge advocate of the court. 
 An assistant defense counsel shall be competent likewise to per- 
 form any duty devolved by law, regulation, or the custom of 
 the service upon counsel for the accused. 
 
 ART. 117. KEMOVAL OF CIVIL SUITS. When any civil or 
 criminal prosecution is commenced in any court of a State 
 against any officer, soldier, or other person in the military 
 service of the United States on account of any act done under 
 color of his office or status, or in respect to which he claims 
 any right, title, or authority under any law of the United 
 States respecting the military forces thereof, or under the law 
 of war, such suit or prosecution may at any time before the 
 
 536 
 
THE ARTICLES OF WAR. ART. H9 
 
 trial or final hearing thereof be removed for trial into the 
 district court of the United States in the district where the 
 same is pending in the manner prescribed in section 33 of the 
 Act entitled "An Act to codify, revise, and amend the laws 
 relating to the judiciary," approved March 3, 1911, and the 
 cause shall thereupon be entered on the docket of said dis- 
 trict court and shall proceed therein as if the cause had been 
 originally commenced in said district court and the same 
 proceedings had been taken in such suit or prosecution in 
 said district court as shall have been had therein in said State 
 court prior to its removal, and said district court shall have 
 full power to hear and determine said cause. 
 
 ART. 118. OFFICERS, SEPARATION FROM SERVICE. No officer 
 shall be discharged or dismissed from the service except by 
 order of the President or by sentence of a general court- 
 martial; and in time of peace no officer shall be dismissed 
 except in pursuance of the sentence of a general court-martial 
 or in mitigation thereof ; but the President may at any time 
 drop from the rolls of the Army any officer who has been 
 absent from duty three months without leave or who has been 
 absent in confinement in a prison or penitentiary for three 
 months after final conviction by a court of competent juris- 
 diction. 
 
 ART. 119. RANK AND PRECEDENCE AMONG REGULARS, MILITIA, 
 AND VOLUNTEERS. That in time of war or public danger, 
 when two or more officers of the same grade are on duty in 
 the same field, department, or command, or of organizations 
 thereof, the President may assign the command of the forces 
 of such field, department, or command, or of any organization 
 thereof, without regard to seniority of rank in the same grade. 
 
 Same as first sentence of art. 119, Code of 1916. The omitted portion read 
 as follows : 
 
 " In the absence of such assignment by the President, officers of the same 
 grade shall rank and have precedence in the following order, without regard to 
 date of rank or commission as between officers of different classes, namely : 
 First, officers of the Regular Army and officers of the Marine Corps detached 
 for service with the Army by order of the President ; second, officers of forces 
 drafted or called into service of the United States ; and, third, officers of the 
 volunteer forces : Provided, That officers of the Regular Army holding com- 
 missions in forces drafted or called into the service of the United States or in 
 the volunteer forces shall rank and have precedence under said commissions as 
 if they were commissions in the Regular Army ; the rank of officers of the 
 Regular Army under commissions in the National Guard as such shall not, for 
 the purposes of this article, be held to antedate the acceptance of such officers 
 into the service of the United States under said commissions." 
 
 537 
 
ART. 120 APPENDIX 1. 
 
 ART. 120. COMMAND WHEN DIFFERENT CORPS OR COMMANDS 
 HAPPEN TO JOIN. When different corps or commands of the 
 military forces of the United States happen to join or do 
 duty together, the officer highest in rank of the line of the 
 Regular Army, Marine Corps, forces drafted or called into 
 the service of the United States, or Volunteers, there on duty, 
 shall, subject to the provisions of the last preceding article, 
 command the whole and give orders for what is needful in the 
 service, unless otherwise directed by the President. 
 
 ART. 121. COMPLAINTS OF WRONGS. Any officer or soldier 
 who believes himself wronged by his commanding officer, and, 
 upon due application to such commander, is refused redress, 
 may complain to the general commanding in the locality 
 where the officer against whom the complaint is made is sta- 
 tioned. The general shall examine into said complaint and 
 take proper measures for redressing the wrong complained 
 of ; and he shall, as soon as possible, transmit to the Depart- 
 ment of War a true statement of such complaint, with the 
 proceedings had thereon. 
 
 Sec. 2. That the provisions of Chapter II of this Act shall take 
 effect and be in force eight months after the approval of this 
 Act : Provided, That articles 2, 23, and 45 shall take effect im- 
 mediately. 
 
 Sec. 3. That all offenses committed and all penalties, forfei- 
 tures, fines, or liabilities incurred prior to the taking effect of 
 Chapter II of this Act, under any law embraced in or modified, 
 changed, or repealed by Chapter II of this Act, may be prose- 
 cuted, punished, and enforced in the same manner and with the 
 same effect as if this Act had not been passed. 
 
 See, 4. That section 1342 of the Revised Statutes of the United 
 States be, and the same is hereby, repealed, and all laws and 
 parts of laws in so far as they are inconsistent with this Act are 
 hereby repealed. 
 
 R. S. 1342 contained the former Articles of War. 
 
 633 
 
INDEX TO ARTICLES OF WAR. 
 
 Art. 
 
 Abandoned property, dealing in 80 
 
 Abandonment, of command to enemy 75 
 
 Absence without leave : 
 
 Officer dropped from rolls for 118 
 
 Punishment for 61 
 
 Time lost to be made good 107 
 
 Abuse of persons bringing in provisions 88 
 
 Accouterments, wasting, injuring, or losing 84 
 
 Accused : 
 
 Appeal to superior authority by 104 
 
 Copy of charges furnished to 70 
 
 Counsel for 17 
 
 Refusal or failure to plead 21 
 
 Right to copy of record of trial 111 
 
 Right to cross-examine witnesses 70 
 
 Right to trial by court-martial . 104 
 
 Rights prejudiced by irregularities 37 
 
 Acquittal : 
 
 Announcement by court 29 
 
 Reconsideration of 40 
 
 Acting judge advocates: 
 
 Oaths administered by 114 
 
 Power to act as notary public in foreign places 114 
 
 Adjutants : 
 
 Oaths administered by 114 
 
 Powers of notary public in foreign places 114 
 
 Ammunition : 
 
 Casting away 75 
 
 Wasting or unlawfully disposing of 84 
 
 Appeal from disciplinary punishment 104 
 
 Appointing authority. See Convening authority. 
 
 Approval : 
 
 Powers incident to power of 47 
 
 Sentences, by convening authority 46 
 
 Sentences, in whole or part 47b 
 
 Arms: 
 
 Casting away 75 
 
 Wasting or unlawfully disposing of . 84 
 
 539 
 
APPENDIX 1. 
 
 Army field clerks: Art. 
 
 Not triable by summary courts-martial 14 
 
 Power to stop quarrels, frays, disorders 68 
 
 Subject to military law 2a 
 
 Army Nurse Corps: 
 
 Members not triable by summary courts-martial 14 
 
 Power to stop quarrels, frays, disorders 68 
 
 Subject to military law 2a 
 
 Army of the United States, Articles of War govern 2 
 
 Arrest : 
 
 Breaking, punishment for 69 
 
 Deserters, by civil officials 106 
 
 Disobedience of order of 68 
 
 Duration of 70 
 
 Of accused - 69 
 
 Officers charged with offense 69 
 
 Soldiers charged with offense 69 
 
 Arson, punishment for 93 
 
 Articles of War: 
 
 Army of the United States governed by 2 
 
 Certain to be read to enlisted men 110 
 
 Jurisdiction 2 
 
 Persons subject to 2 
 
 Assault : 
 
 Upon superior officer, punishment for 64 
 
 With intent to commit felony 93 
 
 With intent to do bodily harm 93 
 
 Assistant defense counsel: 
 
 Associate counsel with civil counsel 17 
 
 One or more with each general or special court-martial 11 
 
 Powers and duties of 116 
 
 Assistant judge advocate : 
 
 Oaths administered by 114 
 
 Powers and duties of 116 
 
 Powers of notary public in foreign places 114 
 
 B. 
 
 Battalion, definition of term Id 
 
 Board of Review : 
 
 Constituted by Judge Advocate General 50J 
 
 Duties 501 
 
 Rehearing ordered by 50$ 
 
 Branding prohibited 41 
 
 Bribes, taking of, on muster 56 
 
 Burglary, punishment for 93 
 
 540 
 
INDEX TO ARTICLES OF WAR. 
 C. 
 
 Cadets. See United States Military Academy. Art. 
 
 Camp retainers subject to military law . 2d 
 
 Capital offenses : 
 
 Depositions, use of in trials for 25 
 
 Records of courts of inquiry adduced by defense in trial for_ 27 
 See also Death sentence. 
 
 Captured property: 
 
 Dealing in 80 
 
 Secured for public service 79 
 
 Wrongful appropriation of 79 
 
 Certificate of discharge, compulsory for enlisted men 108 
 
 Challenge : 
 
 Member of court of inquiry 99 
 
 Method of voting on 81 
 
 Procedure 18 
 
 Challenge to duel, knowledge of, or aiding 91 
 
 Charges : 
 
 Copy furnished to accused ! 70 
 
 Investigation of 70 
 
 Referred to staff judge advocate 70 
 
 Who may sign 70 
 
 Civil authorities: 
 
 Arrest of deserters by 106 
 
 Conviction by, effect on courts-martial sentence 74 
 
 Delivery by, of persons subject to military law 74 
 
 Delivery of offenders to 74 
 
 Civil suits, removal of, instituted against members of military 
 
 forces 117 
 
 Claims: 
 
 False, against Government 94 
 
 False oaths in connection with 94 
 
 False writings or papers in connection with 94 
 
 Clothing, wasting or unlawfully disposing of 84 
 
 Command, when different corps or commands join 120 
 
 Commander compelled by subordinates to surrender 76 
 
 Commander of guard: 
 
 Refusal to receive or keep prisoners 71 
 
 Report on prisoners by 72 
 
 Commanding general, complaint of wrongs made to 121 
 
 Commanding officers : 
 
 Disciplinary powers of 104 
 
 Duty in connection with redress of injuries to property 105 
 
 Refusal to see reparation of wrongs made 89 
 
 Company, definition of term Ic 
 
 21358 20 35 
 
 641 
 
APPENDIX t, 
 
 Conduct: Art. 
 
 Prejudicial to good order and discipline 96 
 
 Unbecoming an officer and gentleman 95 
 
 Confinement : 
 
 Escaping punishment 69 
 
 Officer charged with offense 69 
 
 Officer in prison or penitentiary, dropped from rolls 118 
 
 Places of, when lawful 42 
 
 Soldier charged with offense 69 
 
 Special courts-martial, power of 13 
 
 Summary courts-martial, power of 14 
 
 Confirmation : 
 
 Sentences, by President 48 
 
 Sentences, powers incident to power of 49 
 
 Confirming authority, action by, required 40 
 
 Congress of the United States, disrespect toward, punishment 
 
 for 62 
 
 Conspiracy, to defraud the United States by false claims 94 
 
 Consuls of United States, powers of, when granted to Army 
 
 officers 114 
 
 Contempts, punishment for, by military tribunals 82 
 
 Continuances, courts-martial may grant 20 
 
 Convening authority : 
 
 Action by 46 
 
 Power of approval 46, 47 
 
 Referring of charges before trial 70 
 
 Conviction, civil, effect on courts-martial sentence . 74 
 
 Counsel : 
 
 Appointment of, for courts-martial 11 
 
 For accused 17 
 
 For accused before court of inquiry 99 
 
 Powers of assistant defense counsel 116 
 
 Countersign : 
 
 Divulging of 77 
 
 Improper use of 77 
 
 Courts-martial : 
 
 Charges. See Charges. 
 
 Classified 3 
 
 Evidence. See Evidence. 
 General 
 
 Accused entitled to copy of record of trial-- 111 
 
 Accuser may not sit on 8 
 
 By whom appointed 8 
 
 Closed sessions 30 
 
 Composition 5 
 
 Disposition of records 85 
 
 542 
 
INDEX TO ARTICLES OF WAR. 
 
 Courts-martial Continued. 
 
 General Art. 
 
 Examination of records 501 
 
 Jurisdiction 12 
 
 Records 33 
 
 Witness for prosecution may not sit on 8 
 
 Interpreters, appointment of 115 
 
 Irregularities, effect of 37 
 
 Judge Advocate. See Judge Advocate. 
 Jurisdiction 
 
 Not exclusive 15 
 
 Limitations as to number of trials 40 
 
 Limitations as to time 39 
 
 Military 
 
 Detached members of Marine Corps triable by 2c 
 
 Naval- 
 Detached members of Marine Corps triable by 2o 
 
 Persons under sentence subject to military law 2e 
 
 Procedure , 17 
 
 Proceedings 
 
 Effect of irregularities 37 
 
 Qualification of members 4 
 
 Records returned for reconsideration 40 
 
 Right of accused to demand trial by 104 
 
 Rules prescribed by President 38 
 
 Special 
 
 Accuser may not sit on 9 
 
 Closed sessions 30 
 
 Composition 6 
 
 Disposition of records 36 
 
 Jurisdiction 13 
 
 Limitation of punishment 13 
 
 Records 34 
 
 Who may appoint _ 9 
 
 Witness for prosecution may not sit on 9 
 
 Summary 
 
 Composition 7 
 
 Disposition of records 36 
 
 Effects of deceased persons, dispositions of 112 
 
 Investigation of death by 113 
 
 Jurisdiction 14 
 
 Records 34 
 
 Wljo may appoint 10 
 
 Trial by, for murder or rape , 92 
 
 Who may serve 4 
 
 Witnesses. See Witnesses. 
 
 543 
 
APPENDIX 1. 
 
 Courts of Inquiry: Art. 
 
 Authentication of proceedings - 103 
 
 Challenge of member 99 
 
 Composition of 98 
 
 Functions of 97 
 
 Interpreters, appointment of 115 
 
 Oath of members and recorders 100 
 
 Opinion, when given 102 
 
 Powers 101 
 
 Procedure 101 
 
 Recorder of, powers 101 
 
 Records as evidence 27 
 
 When and by whom ordered 97 
 
 Witnesses for _' 101 
 
 Cowardice, accessory penalty 44 
 
 Crimes not capital 96 
 
 Cross-examination, witnesses for courts of inquiry, by accused 101 
 
 D. 
 
 Damages : 
 
 To military property 83 
 
 To property, redress of 105 
 
 Dangerous weapon, assault with 93 
 
 Death: 
 
 Investigation by summary court-martial 113 
 
 Remission of suspended sentence by 52 
 
 Death sentence: 
 
 Advising or aiding desertion 59 
 
 Assaulting or willfully disobeying superior officers 64 
 
 Confirmation of, by President 48d 
 
 Desertion in time of war 58 
 
 Failure to suppress mutiny or sedition 67 
 
 Forcing a safeguard 78 
 
 Improper use of countersign 77 
 
 Misbehavior before the enemy 75 
 
 Murder 92 
 
 Mutiny 66 
 
 Rape 92 
 
 Relieving, corresponding with, or aiding enemy 81 
 
 Sedition 66 
 
 Sentinel drunk or sleeping on post 86 
 
 Spies 82 
 
 Subordinates compelling commander to surrender , 76 
 
 Suspension of 51 
 
 When lawful 43 
 
 Deceased persons, disposition of effects of 112 
 
 544 
 
INDEX TO ARTICLES OF WAR. 
 
 Defense counsel : Art. 
 
 Accused's rights as to 17 
 
 Appointed for each general or special court-martial 11 
 
 Associate counsel with civil counsel 17 
 
 Definitions : 
 
 Any person subject to military law 2 
 
 Battalion Id 
 
 Company lc 
 
 Officer la 
 
 Persons subject to military law- 2 
 
 Soldier Ib 
 
 Delivery : 
 
 Less than amount receipted for 94 
 
 Offenders to civil authorities 74 
 
 Depositions: 
 
 Before whom taken 26 
 
 When admissible 25 
 
 Desertion : 
 
 Advising or aiding 59 
 
 Arrest of deserters by civil officials 106 
 
 Enlistment before regularly discharged 28 
 
 Quitting organization to avoid duty 28 
 
 Officer entertaining and retaining deserter 60 
 
 Officer leaving before resignation accepted 28 
 
 Punishment for 42, 58 
 
 Destruction of property : 
 
 Punishment for , 89 
 
 Redress for 105 
 
 Detached enlisted men: 
 
 Marine Corps, when subject to military law 2c 
 
 Detached officers: 
 
 Marine Corps, when subject to military law 2c 
 
 Discharge : 
 
 Before expiration of term 108 
 
 Officers 118 
 
 Remissions of suspended sentence by honorable 52 
 
 Soldiers' 108 
 
 Disciplinary punishment : 
 
 Appeal from 104 
 
 Imposition by commanding officer 104 
 
 Dismissal : 
 Cadets- 
 Breaking arrest or escaping confinement 69 
 
 Confirmation by President 48c 
 
 Officers 
 
 Breaking arrest or escaping confinement 69 
 
 Conduct unbecoming 95 
 
 545 
 
APPENDIX 1. 
 
 Dismissal Continued 
 
 Officers Continued Art 
 
 Confirmation by President 48b 
 
 Cowardice 44 
 
 Disrespect toward President or other officials 62 
 
 Drunk on duty 85 
 
 False returns 57 
 
 Fighting or promoting a duel 91 
 
 Fraud 44 
 
 How effected 118 
 
 Making false muster 56 
 
 Making unlawful enlistment 55 
 
 Personal interest in sale of provisions 87 
 
 Kefusal to deliver offenders to civil authorities 74 
 
 Refusal to have reparation of wrongs made 89 
 
 Suspension of sentence 51 
 
 Disobedience, command of superior officer, punishment for 64 
 
 Disorders : 
 
 Prejudicial to good order and military discipline 96 
 
 Who may stop 68 
 
 Disrespect : 
 
 Toward President or other officials 62 
 
 Toward superior officer (53 
 
 Double jeopardy, limitation as to number of trials 40 
 
 Drafted men, subject to military law 2a 
 
 Drunkenness : 
 
 Officer drunk on duty 85 
 
 Sentinel drunk on post 86 
 
 Dueling, fighting or promoting 91 
 
 Duty, officer found drunk on 85 
 
 BL 
 
 Effects of deceased persons, disposition of 112 
 
 Embezzlement : 
 
 Military property 94 
 
 Punishment for . 93 
 
 Enemy, relieving, corresponding with or aiding 81 
 
 Enlisted men: 
 
 Definition of "soldier" lb 
 
 Marine Corps. See Marine Corps. 
 
 Oath of enlistment 109 
 
 Separation from the service 108 
 
 Time lost to be made good 107 
 
 Enlistment : 
 
 Certain articles of war to be read on 110 
 
 Fraudulent 
 
 Misrepresentation or concealment of qualifications 54 
 
 Reenlistment before regularly discharged 28 
 
 546 
 
INDEX TO ARTICLES OF WAB. 
 
 Enlistment Continued Art. 
 
 Oath of 109 
 
 Time lost to be made good 107 
 
 Unlawful, making of punishable 55 
 
 Equipment, wasting or unlawfully disposing of 84 
 
 Escape : 
 
 From confinement, punishment . 69 
 
 Suffering prisoner to escape 73 
 
 Evidence : 
 
 Depositions, before whom taken 26 
 
 Depositions, when admissible 25 
 
 Records of courts of inquiry 27 
 
 Execution of sentences: 
 
 In disciplinary barracks 53 
 
 Order withheld 50* 
 
 F. 
 
 False muster, punishment for 56 
 
 False returns, punishment for ' 57 
 
 False writings, in connection with claims 94 
 
 Felony, assault with intent to commit 93 
 
 Field clerks: 
 Army 
 
 Not triable by summary courts-martial 14 
 
 Power to stop quarrels, frays, disorders 68 
 
 Subject to military law 2a 
 
 Quartermaster Corps 
 
 Not triable by summary courts-martial 14 
 
 Power to stop quarrels, frays, disorders 68 
 
 Subject to military law 2a 
 
 Findings : 
 
 Irregularities, effect on * 37 
 
 Method of voting on 31 
 
 Reconsideration of 40 
 
 Flogging prohibited 41 
 
 Forgery : 
 
 In connection with claims 94 
 
 Punishment for 93 
 
 Fraud : 
 
 Accessory penalty 44 
 
 Against Government, or officers thereof 94 
 
 Fraudulent enlistment, by misrepresentation or concealment of 
 
 qualifications . 54 
 
 Frays, who may quell 68 
 
 547 
 
APPENDIX 1. 
 
 G. 
 
 Art 
 
 General officers, confirmation of sentence of 48a 
 
 Gentleman, conduct unbecoming an officer and 95 
 
 Gestures, reproachful or provoking 90 
 
 Good order : 
 
 Conduct prejudicial to 9G 
 
 Maintenance of 89 
 
 H. 
 
 Horses, Injuring or losing 84 
 
 Housebreaking, punishment for 93 
 
 L 
 
 Inquests, by summary courts-martial 113 
 
 Insubordination toward noncommissioned officers, punishment 65 
 
 Intent to commit a felony 93 
 
 Interpreters : 
 
 Appointment of 115 
 
 Courts of inquiry 101 
 
 Oath administered to 19 
 
 Intimidation of persons bringing in provisions 88 
 
 Investigation : 
 
 Charges 70 
 
 Death^by summary courts-martial 113 
 
 Delay in, punishment 70 
 
 Injuries to property 105 
 
 Irregularities, effect on courts-martial proceedings! 37 
 
 J. 
 
 Judge Advocate : 
 
 Oaths administered by 114 
 
 Power to act as notary public in foreign places 114 
 
 Staff, charges referred to, before trial 70 
 
 Staff, restrictions on officer who may act as 11 
 
 Judge Advocate General : 
 
 Board of review constituted by 50J 
 
 Branch offices established by 50$ 
 
 Review of records of trial 46 
 
 Judge Advocate General's Department : 
 
 Board of review in 50$ 
 
 Officer detailed to general courts-martial 8 
 
 Judge Advocates. See Acting Judge Advocates, Assistant Judge 
 Advocates, Trial Judge Advocates. 
 
 548 
 
INDEX TO ARTICLES OF WAR. 
 
 I* 
 
 Larceny: Art. 
 
 Military property 94 
 
 Punishment for 93 
 
 Law member: 
 
 Appointment 8 
 
 Rulings 81 
 
 Life imprisonment: 
 
 Murder 92 
 
 Rape 92 
 
 Limitations : 
 
 Maximum limits of punishment 45 
 
 Upon prosecutions, as to number 40 
 
 Upon prosecutions, as to time 39 
 
 M. 
 
 Manslaughter, punishment for 93 
 
 Marine Corps :- 
 
 Enlisted men, subject to military law when detached 2c 
 
 Officers, subject to military law when detached 2c 
 
 Mayhem, punishment for 93 
 
 Military commissions: 
 
 Court of inquiry records admissible before 27 
 
 Jurisdiction, concurrent with courts-martial 15 
 
 Military instruction, persons in training subject to military law_ 2a 
 
 Military law. See Articles of War. 
 
 Military property: 
 
 Loss, damage, or wrongful disposition of 83 
 
 Purchasing or receiA 7 ing in pledge 94 
 
 Waste or unlawful disposition of, issued to soldiers 84 
 
 Military tribunals: 
 
 Contempts punished by 32 
 
 Jurisdiction concurrent with courts-martial 15 
 
 Militia, rank and precedence among regulars, volunteers and 119 
 
 Misappropriation of military property 94 
 
 Misbehavior : 
 
 Before the enemy, inducing 75 
 
 Before the enemy, punishment 75 
 
 Sentinel 86 
 
 Misrepresentation, fraudulent enlistment 54 
 
 Mitigation of sentences 50 
 
 Money, taking of, on muster 56 
 
 Murder : 
 
 Punishment for 92 
 
 Trial by courts-martial 92 
 
 Muster, false 56 
 
 549 
 
APPENDIX 1. 
 
 Muster In: Art 
 
 Certain articles of war to be read on 110 
 
 Unlawful 55 
 
 Mutiny : 
 
 Failure to suppress, punishment 67 
 
 Punishment for 42, 66 
 
 N. 
 
 Navy, articles of war not applicable to ; exception 2 
 
 Neglect of duty, prejudicial to good order and discipline 96 
 
 Noncommissioned officers : 
 
 Insubordinate conduct toward, punishment 65 
 
 Power to stop quarrels, frays, disorders 68 
 
 Notary public, powers of, when granted to Army officers 114 
 
 o. 
 
 Oaths: 
 
 Administration of, in eourts-inartia! 19 
 
 Authority to administer 114 
 
 False, in connection with claims 94 
 
 Members and recorders of courts of inquiry 100 
 
 Of enlistment 109 
 
 Offenders, delivery of, to civil authorities 74 
 
 Offenses : 
 
 Minor, confinement for 69 
 
 Minor, disciplinary punishment for 104 
 
 Not capital 96 
 
 Officers : 
 
 Arrest of, who may order 68 
 
 Assaulting or willfully disobeying superior (54 
 
 Conduct unbecoming 95 
 
 Definition of term la 
 
 Dismissal. See Dismissal. 
 
 Disrespect toward Federal or State 62 
 
 Disrespect toward superior 63 
 
 Drunk on duty 85 
 
 General, sentences respecting, to be confirmed by President 48a 
 
 How triable 16 
 
 Marine Corps, when members subject to articles of war 2c 
 
 Separation from the service 118 
 
 Subject to military law 
 
 Trial by inferiors 16 
 
 Opinions by courts of inquiry 102 
 
 550 
 
INDEX TO ARTICLES OF WAR, 
 
 P. 
 
 Art, 
 
 Parole, divulging 77 
 
 Pay: 
 
 Forfeiture 
 
 Special courts-martial, power of 13 
 
 Summary courts-martial, power of , 14 
 
 Stoppage for damage to property 105 
 
 Penitentiary : 
 
 Confinement in, when lawful 42 
 
 Officer confined in, dropped from rolls 118 
 
 Power to mitigate or remit sentence does not extend to 50 
 
 Perjury, punishment for 93 
 
 Pillage, quitting post to 75 
 
 Pleading, error in, effect on proceedings 37 
 
 Pleas, refusal or failure to plead 21 
 
 Pledge, receiving military property in 94 
 
 Plunder, quitting post to 75 
 
 President of the United States : 
 
 Action on rehearing 50$ 
 
 Confirmation of sentences, when required 48 
 
 Dismissal or discharge of officer by 118 
 
 Disrespect toward, punishment for 62 
 
 General courts-martial appointed by 8 
 
 Persons excepted from summary courts-martial jurisdic- 
 tion by 14 
 
 Prescribes rules for courts-martial procedure 38 
 
 Prisoners : 
 
 Refusal to receive or keep 71 
 
 Releasing, without proper authority 73 
 
 Report on, by commander of guard 72 
 
 Property : 
 
 Abandoned, dealing in 80 
 
 Captured, dealing in 80 
 
 Captured, failure to secure 79 
 
 Captured, misappropriation of 79 
 
 Captured, securing for public service 79 
 
 Injuries to, redress of 105 
 
 Willful destruction of, by persons in military service 89 
 
 Provisions : 
 
 Intimidation of persons bringing in 88 
 
 Sale of, officer's personal interest in 87 
 
 Provost courts, jurisdiction concurrent with courts-martial 15 
 
 Provost marshal, refusal of, to receive or keep prisoners 71 
 
 Punishment : 
 
 Cowardice - 44 
 
 Cruel and unusual, prohibited 41 
 
 Disciplinary powers of commanding officer 104 
 
APPENDIX 1. 
 
 Punishment Continued. Art. 
 
 Fraud 44 
 
 Maximum limits 45 
 
 Places of confinement, when lawful 42 
 
 Special courts-martial, power of 13 
 
 Summary courts-martial, power of 14 
 
 Q,. 
 
 Quarrels, who may stop 68 
 
 Quartermaster Corps, field clerks: 
 
 Not triable by summary courts-martial 14 
 
 Power to stop quarrels, frays, disorders 68 
 
 Subject to military law 2a 
 
 R. 
 
 Rank, precedence among regulars, militia, and volunteers 119 
 
 Rape: 
 
 Punishment for 92 
 
 Trial by courts-martial 92 
 
 Receipt : 
 
 Delivery of less than amount specified 94 
 
 Making or delivering, with fraudulent intent 94 
 
 Reconsideration of courts-martial records 40 
 
 Records : 
 
 Courts-martial, reconsideration 40 
 
 Courts of inquiry . 103 
 
 General courts-martial, keeping and authentication of 33 
 
 General courts-martial, disposition of 35 
 
 General courts-martial, examination of 50i 
 
 Of trial, copy of, for accused 111 
 
 Special courts-martial, keeping and authentication of 34 
 
 Special courts-martial, disposition of 36 
 
 Summary courts-martial, keeping and authentication of 34 
 
 Summary courts-martial, disposition of 86 
 
 Recorder : 
 
 For court of inquiry 98 
 
 For courts of inquiry, oath of 100 
 
 Redress : 
 
 For wrong to person 121 
 
 Of wrongs, by commanding officer 89 
 
 Regular Army: 
 
 Inmates of Soldiers' Home, Washington, D. C., subject to 
 
 military law 2b 
 
 Rank and precedence among volunteers, militia, and mem- 
 bers of 119 
 
 Soldiers subject to military law 2a 
 
 Rehearing : 
 
 Procedure 50i 
 
 Who may authorize 50J 
 
 552 
 
INDEX TO ARTICLES OF WAR. 
 
 Art. 
 
 Release of prisoners without proper authority 73 
 
 Relieving enemy, punishment 81 
 
 Remission : 
 
 Sentences 50 
 
 Sentences, in disciplinary barracks 53 
 
 Unexecuted sentence . 52 
 
 Reporters : 
 
 Appointment of 115 
 
 Courts of inquiry 101 
 
 Oath administered to . 19 
 
 Retainers, camp, subject to military law 3d 
 
 Returns : 
 
 False, punishment for 57 
 
 Omission to render 57 
 
 Reviewing authority, action by, necessary 40 
 
 Revision, reconsideration of finding or sentence 40 
 
 Riot, punishment for 89 
 
 Robbery, punishment for 1 93 
 
 s. 
 
 Safeguard, forcing 78 
 
 Safety of command, endangering 75 
 
 Sales : 
 
 Military property 94 
 
 Provisions, officer's personal interest in 87 
 
 Unlawful sale of military property 84 
 
 Sedition : 
 
 Failure to suppress, punishment 67 
 
 Punishment for 66 
 
 Self-incrimination, compulsory, prohibited 24 
 
 Sentences : 
 
 Approval by convening authority 46 
 
 Approval or disapproval by appointing authority 47b 
 
 Confirmation, powers incident to power of 49 
 
 Courts-martial, effect of civil conviction on 74 
 
 Execution of, in disciplinary barracks 53 
 
 Irregularities, effect on 87 
 
 Mitigation of, in whole or part 50 
 
 Powers incident to power tp approve 47 
 
 Reconsideration of 40 
 
 Remission of, in disciplinary barracks 53 
 
 Remission of, in whole or part 50 
 
 Suspension of, until pleasure of President is known 51 
 
 Suspension of, who may order 52 
 
 Sentinel: 
 
 Drunk on post 86 
 
 Sleeping on post 86 
 
 553 
 
APPEBTDIX L 
 
 Separation from service. See Discharge; Dismissal. Art 
 
 Sessions, closed 30 
 
 Signatures, forging, in connection with claims 94 
 
 Sleeping on post, by sentinel ' 86 
 
 Sodomy, punishment for 93 
 
 Soldiers. See Enlisted men. 
 
 Soldiers' Home, Regular Army, Washington, D. C., members sub- 
 ject to military law 3b 
 
 Specifications, who may sign 70 
 
 Speeches, reproachful or provoking 90 
 
 Spies : 
 
 Lurking about fortifications 82 
 
 Punishment for 82 
 
 Squadron included in " battalion " 1 
 
 Staff judge advocate: 
 
 Review of records of trial 46 
 
 Statute of limitations 39 
 
 Stoppage of pay. See Pay. 
 
 Subordinates : 
 
 Commander compelled to surrender by 76 
 
 Insubordinate conduct toward noncommissioned officer 1_ 65 
 
 Superior officer: 
 
 Assaulting, punishment for 64 
 
 Disrespect toward, punishment for 63 
 
 Willfully disobeying, punishment for 64 
 
 Surrender, subordinates compelling commander to 76 
 
 Suspension : 
 Cadets 
 
 Confirmation by President 48c 
 
 Sentence, See Sentences. 
 
 T. * 
 
 Tattooing as punishment prohibited 41 
 
 Testimony : 
 
 Compulsory self-incrimination prohibited 24 
 
 Depositions. See Depositions. 
 Witnesses. See Witnesses. 
 
 Threats against warrant or noncommissioned officers 65 
 
 Trial: 
 
 Copy of record of, for accused , 111 
 
 Delay in bringing, punishment 70 
 
 Second for same offense 40 
 
 Speedy trial required 70 
 
 Time for 70 
 
 Trial judge advocates: 
 
 Appointment of 11 
 
 Assistant, powers and duties of 116 
 
 554 
 
INDEX TO ARTICLES OF WAR. 
 
 Trial judge advocates Continued. Art. 
 
 Assistant, qualifications 116 
 
 Duties 17 
 
 Oaths administered by 114 
 
 Powers of notary public in foreign places 114 
 
 Withdrawal at closed session 30 
 
 IT. 
 
 United States Disciplinary Barracks: 
 
 Confinement in 42 
 
 Execution of sentence when confined in 53 
 
 Power to mitigate or remit sentence does not extend to 50 
 
 Remission of sentence when confined in 53 
 
 United States Military Academy : 
 
 Cadets breaking arrest or escaping confinement 69 
 
 Cadets' dismissal or suspension 48c 
 
 Cadets not triable by summary courts-martial 14 
 
 Cadets subject to military law 2b 
 
 Dismissal of cadets 69 
 
 General courts-martial appointed by Superintendent 8, 12 
 
 Verdict: 
 
 Announcement by court 29 
 
 Volunteers : 
 
 Rank and precedence among regulars, militia, and 119 
 
 Subject to military law 2a 
 
 Voting : 
 
 Method of 31 
 
 On convictions and sentences 43 
 
 w. 
 
 Warrant officers : 
 
 Insubordinate conduct toward 65 
 
 Not triable by summary courts-martial 14 
 
 Power to stop quarrels, frays, disorders 68 
 
 Subject to military law 2a 
 
 Waste : 
 
 Military property issued to soldiers 84 
 
 Property 89 
 
 Weapon, assault with dangerous 93 
 
 Witnesses : 
 
 Compulsory self-incriminatiou prohibited 24 
 
 Courts of inquiry 101 
 
 Inquests 113 
 
 Oaths administered to . 19 
 
 Process to obtain 22 
 
 Refusal to appear or testify 23 
 
 Wrongs : 
 
 Redress of 89 
 
 Redress, refusal of, procedure on 121 
 
 555 
 
APPENDIX 2. 
 
 SYSTEM OF COURTS-MARTIAL FOR NATIONAL 
 GUARD NOT IN THE SERVICE OF THE UNITED 
 STATES. 
 
 SEC. 102. Except in organizations in the service of the United 
 States, courts-martial in the National Guard shall be of three kinds, 
 namely, general courts-martial, special courts-martial, and summary 
 courts-martial. They shall be constituted like, and have cognizance 
 of the same subjects, and possess like powers, except as to punish- 
 ments, as similar courts provided for by the laws and regulations 
 governing the Army of the United States, and the proceedings of 
 courts-martial of the National Guard shall follow the forms and 
 modes of procedure prescribed for said similar courts. 
 
 SEC. 103. General courts-martial of the National Guard not in the 
 service of the United States may be convened by orders of the Presi- 
 dent, or of the governors of the respective States and Territories, or 
 by the commanding general of the National Guard of the District of 
 Columbia, and such courts shall have the power to impose fines not 
 exceeding $200 ; to sentence to forfeiture of pay and allowances ; to a 
 reprimand; to dismissal or dishonorable discharge from the service; 
 to reduction of noncommissioned officers to the ranks ; or any two or 
 more of such punishments may be combined in the sentences imposed 
 by such courts. 
 
 SEC. 104. In the National Guard not in the service of the United 
 States the commanding officer of each garrison, fort, post, camp, or 
 other place, brigade, regiment, detached battalion, or other detached 
 command, may appoint special courts-martial for his command; but 
 such special courts-martial may in any case be appointed by superior 
 authority when by the latter deemed desirable. Special courts-mar- 
 tial shall have power to try any person subject to military law, ex- 
 cept a commissioned officer, for any crime or offense made punish- 
 able by the military laws of the United States, and such special 
 courts-martial shall have the same powers of punishment as do gen- 
 eral courts-martial, except that fines imposed by such courts shall 
 not exceed $100. 
 
 SEC. 105. In the National Guard, not in the service of the United 
 States, the commanding officer of each garrison, fort, post, or other 
 place, regiment or corps, detached battalion, company, or other de- 
 tachment of the National Guard may appoint for such place or com- 
 mand a summary court to consist of one officer, who shall have power 
 to administer oaths and to try the enlisted men of such place or com- 
 mand for breaches of discipline and violations of laws governing such 
 
 556 
 
COURTS-MARTIAL FOR NATIONAL GUARD. 
 
 organizations ; and said court, when satisfied of the guilt of such sol- 
 dier, may impose fines not exceeding $25 for any single offense ; may 
 sentence noncommissioned officers to reduction to the ranks ; may sen- 
 tence to forfeiture of pay and allowances. The proceedings of such 
 court shall be informal, and the minutes thereof shall be the same as 
 prescribed for summary courts of the Army of the United States. 
 
 SEC. 106. All courts-martial of the National Guard, not in the serv- 
 ice of the United States, including summary courts, shall have power 
 to sentence to confinement in lieu of fines authorized to be imposed: 
 Provided, That such sentences of confinement shall not exceed one 
 day for each dollar of fine authorized. 
 
 SEC. 107. No sentence of dismissal from the service or dishonorable 
 discharge, imposed by a National Guard court-martial, not in the 
 service of the United States, shall be executed until approved by the 
 governor of the State or Territory concerned, or by the commanding 
 general of the National Guard of the District of Columbia. 
 
 SEC. 108. In the National Guard, not in the service of the United 
 States, presidents of courts-martial and summary court officers shall 
 have power to issue warrants to arrest accused persons and to bring 
 them before the court for trial whenever such persons shall have dis- 
 obeyed an order in writing from the convening authority to appear 
 before such court, a copy of the charge or charges having been de- 
 livered to the accused with such order, and to issue subpoenas and 
 subpoenas duces tecum and to enforce by attachment attendance of 
 witnesses and the production of books and papers, and to sentence 
 for a refusal to be sworn or to answer as provided in actions before 
 civil courts. 
 
 All processes and sentences of said courts shall be executed by 
 such civil officers as may be prescribed by the laws of the several States 
 and Territories, and in any State where no provision shall have been 
 made for such action, and in the Territories and the District of Co- 
 lumbia, such processes and sentences shall be executed by a United 
 States marshal or his duly appointed deputy, and it shall be the duty 
 of any United States marshal to execute all such processes and sen- 
 tences and make return thereof to the officer issuing or imposing the 
 same, (Act of June 3, 1916, 39 Stat, 208, 209.) 
 
 21358 20 36 
 
 557 
 
APPENDIX 3. 
 
 FORM OF ORDER APPOINTING A 
 COURT-MARTIAL. 
 
 GENERAL 
 
 Headquarters 
 
 (Corps Area) (Division) (Department). 
 
 (Place) - 
 SPECIAL ORDERS, 1 
 
 No. j 
 
 A general court-martial is appointed 
 at , on 
 
 (Date) 
 
 19 
 
 to meet at 
 19 , or as soon thereafter as practicable, 
 
 for the trial of such persons as may be properly brought before it, 
 
 Col. 
 
 DETAIL FOR THE COURT. 
 
 5th Cavalry. 
 
 , 1st Infantry. 
 , 3d Field Artillery. 
 
 J. A. G. D., law member. 
 3d Field Artillery. 
 4th Infantry. 
 5th Cavalry. 
 1st Infantry. 
 3d Field Artillery. 
 5th Cavalry, trial judge advocate. 
 
 First Lieut. , 3d Field Artillery, assistant trial judge advocate. 
 
 Capt. , 4th Infantry, defense counsel. 
 
 ^ First Lieut. , 4th Infantry, assistant defense counsel. 
 
 (In case travel is necessary, the following sentence will be added:) 
 The travel directed in compliance with this order is necessary In 
 the military service. 
 
 By command of Maj. Gen. . 
 
 (name), 
 
 Official : 
 
 Adjutant 
 
 (rank) (General Staff), 
 
 Chief of Staff. 
 
 NOTE. A succession of orders modifying an order appointing a 
 court-martial is liable to result in serious errors. When practicable 
 it should be avoided by appointing a new court 
 
 558 
 
APPENDIX 4. 
 
 FORM OF ORDER APPOINTING A SPECIAL COURT- 
 
 MARTIAL. 
 
 f SPECIAL OBDEES, Headquarters 
 
 No. - . (Place) - (Date) - 19 
 
 A special court-martial is appointed to meet at - , - at 
 -- , - , 19 - , or as soon thereafter as practicable, for 
 
 the trial of such persons as may be properly brought before it. 
 
 DETAIL FOB THE COUBT. 
 
 Maj. - , 1st Cavalry. 
 
 Capt. - , 3d Cavalry. 
 
 Capt. - , 4th Coast Artillery Company. 
 
 First Lieut. - , 3d Cavalry. 
 
 First Lieut. - , 1st Infantry. 
 
 Capt. - , 4th Coast Artillery Company, trial judge advocate. 
 
 Capt. - , 3d Cavalry, defense counsel. 
 
 (In case the appointing authority desires that the testimony be re- 
 duced to writing, the following sentence will be added:) 
 
 The testimony will be reduced to writing, and the president is 
 authorized to employ a reporter. 
 
 By order of Colonel - : 
 
 Adjutant. 
 
 659 
 
Form No. 594, A. G. O. 
 December 8, 1920. 
 
 APPENDIX 5. 
 CHARGE SHEET. 
 
 (See Instructions on page 4.) 
 No. 
 
 (In summary court record.) 
 
 (Place.) 
 
 (Date.) 
 
 (Surname of accused. (Christian name.) (Army serial No.) (Grade,) 
 
 (Company and regiment, or corps, or department.) 
 
 Date of current enlistment, , 19 ; age at enlist- 
 ment, years months. 
 
 Term of current enlistment years. 
 
 Rate of pay, $ Class A allotment, 
 B allotment, $ per month. 
 
 Allotment for insurance premium, $ per month. 
 
 Prior service, 
 
 per month. Class 
 
 (Give dates, with character given on each discharge.) 
 Witnesses, both for and against the accused, so far as known, are 
 as follows (see Instruction 4) ; 
 
 Against the accused 
 
 To be found at 
 
 For the accused 
 
 To be found at 
 
 Memorandum of documentary evidence bearing on the case (see In- 
 structions 4 and 9) : 
 
 List of documents. 
 
 Original 
 ap- 
 pended. 
 
 Copy ap- 
 pended. 
 
 If original is not appended, state place 
 where it may be found. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 Is accused now in arrest ?- 
 If so, date of arrest 
 
 or in confinement ?- 
 
 -, 19 , or confinement 
 
 If so, place where accused is now in arrest or confinement 
 
 -,19- 
 
 560 
 
CHARGE SHEET. 
 
 CHARGE : Violation of the Article of War. 
 
 Specification: 
 
 (Signature of accuser) 
 
 ( Grade and organization and arm, or 
 staff corps, or department.) 
 
 (Additional sheets; if necessary, for charges and specifications will 
 be attached here. Ordinary 8 ly 12 inch paper loill be used for ad- 
 ditional sheets.) 
 
 AFFIDAVIT. 
 
 Before me, the undersigned, authorized by law to administer 
 oaths in cases of this character, personally appeared the above- 
 named accuser this day of , 19 , and made 
 
 oath that he is a person subject to military law and that he per- 
 sonally signed the foregoing charges and specifications, and further 
 that he * has personal knowledge of the matters set forth in 
 
 specifications" ; and * has 
 
 (Indicate by specification and charge numbers.) 
 
 investigated the matters set forth in specifications 
 
 (Indicate 
 
 -, and that the same are true 
 
 by specification and charge numbers.) 
 in fact, to the best of his knowledge and belief. 
 (Name) 
 
 (Rank and organization.) 
 
 (Official character, as summary court, notary public, etc.) 
 
 NOTES. (1) At (*) strike out words not applicable. 
 
 (2) If the accuser has personal knowledge of the facts stated in one or more 
 specifications or parts thereof, and his knowledge as to other specifications or 
 parts thereof is derived from investigation of the facts, the form of the oath 
 will be varied accordingly. In no case will he be permitted to state alter- 
 natively, as to any particular charge or specification, that he either has 
 personal knowledge or has investigated. (See note to par. 75, M. C. M.) 
 
 (3) If the oath is administered by a civil officer having a seal, his official 
 seal should be affixed. 
 
 IST IND. 
 (See Instruction 6.) 
 
 Headquarters , , , 19 . 
 
 (Place.) (Date.) 
 
 Referred for trial to 
 
 (Rank, name, and organization. Summary court, trial 
 
 court-martial ap- 
 
 Judge advocate. ) ( Summary, special, or general. ) 
 
 pointed by paragraph Special Orders, No. 
 
 Headquarters , 19 . 
 
 of 
 
 (Command or order.) (Rank and name of commanding officer.) 
 
 , Adjutant. 
 
 561 
 
APPENDIX 5. 
 
 I have semed copies hereof and of accompanying papers, in accord- 
 ance with the requirements of paragraph 77&, Manual for Courts- 
 Martial, on the above-named accused, this day of , 
 
 19 
 
 {Name) , Trial Judge Advocate. 
 
 (Rank and organization.) 
 
 Pleas : 
 
 Findings : 
 
 Sentence : 
 
 Days in arrest (or confiement), ; maximum punish- 
 ment, 
 
 Remarks: 
 
 NOTE. The foregoing blank spaces will be filled Jn. by summary courts. 
 In other cases they will not be filled In by trial Judge advocates or otbera 
 at the trial, but will be reserved for use for record purposes at the head- 
 quarters of the officer appointing the special or general court-martial. 
 
 Entered oo pay card (forfeiture only). (See Instruction 8) 
 
 (Initials of adjutant.) 
 
 Entered on service record in cases of conviction (see Instruc- 
 tion 8) 
 
 (Initials of company or detachment commander.) 
 DESTRUCTIONS. 
 
 L Before preparing charges on tliis form the provisions of the 
 seventieth article of war and of paragraph 75, Manual for Courts- 
 Martial, and the note thereunder, together with paragraphs 62, <33, 64, 
 65, 66, and 67, Manual for Courts-Martial, and of the particular article 
 or articles of war alleged to have been violated, and the paragraphs of 
 the Manual for Courts-Martial relating .thereto, will be carefully con- 
 sidered. 
 
 2. Charges for trial by courts-mnrtial may be preferred by any 
 person subject to military law. All charges and specifications must be 
 signed by a person subject to military law, and under oath either that 
 he has personal knowledge of or has investigated the matters set forth 
 therein, and that the same are true in fact to the best of his knowledge 
 and belief. (A. W. 70.) 
 
 Charges will be preferred only when the person preferring them 
 either has personal knowledge of or has Investigated the matters set 
 forth therein, and from such knowledge or investigation is of the 
 opinion that there is reasonable ground for believing that the offense 
 has been committed, that the accused Is guilty of the offense, and that 
 the offense can not be properly or adequately dealt with in any other 
 manner. (Par. 75, M. C. M.) 
 
 562 
 
CHARGE SHEET. 
 
 3. All charges for trial by courts-martial will be is triplicate and 
 may be prepared by carbon process. This charge sheet form will be 
 used for each of the three copies, and all copies will be signed by the 
 accuser and the officer administering the oath. Should the space on 
 this form be insufficient to accommodate ail the charges and specifica- 
 tions proposed, such additional sheets of ordinary paper will be used 
 for that purpose as may be required. The charges and specifications 
 will be signed as indicated on this prescribed form and the affidavit 
 thereto, in substantially the form hereon prescribed, will be sworn to 
 before any officer, civil or military, authorized to administer oaths in 
 cases of this character (see as to the competency of military officers 
 to administer oaths, par. 138, M. C. M.), and will be forwarded to the 
 commanding officer immediately exercising summary court-martial 
 jurisdiction over the command to which the accused belongs or 
 pertains, 
 
 4. All known witnesses, both for and against the accused, will be 
 listed in the prescribed place on this charge sheet, mentioning where 
 they may be found; and all documents bearing upon the case which 
 may be obtainable will be listed in the prescribed place under " Mem- 
 orandum of documentary evidence bearing on the case " above. 
 Wherever available, original documents which may be useful as evi- 
 dence will be appended and securely fastened hereto. If the originals 
 are not available, copies will, if available, be so appended. In any 
 case where the originals are not so appended (whether or not copies 
 are appended), the place where the originals may be found will be 
 noted in the appropriate place under " Memorandum of documentary 
 evidence bearing on the case " above. . 
 
 5. The affidavit to the charges must state positively either that 
 (1) the affiant preferring the charges has personal knowledge of the 
 matters set forth therein, or else, (2) that he has investigated them 
 and has thus satisfied himself of the facts. It must clearly appear 
 upon which ground he places his statement of the truth of the facts 
 alleged in the charges and specifications. He is not to be permitted 
 to say alternatively, as to any particular charge or specification, that 
 he either has personal knowledge or has investigated. Such an in- 
 definite statement is wholly insufficient to satisfy the requirements 
 of the seventieth article of war, and will not be accepted. 
 
 He may, however, base some of the allegations in a specification, 
 or some of the specifications, on his personal knowledge, and others 
 upon his investigation of the facts. In such cases he will, in the affi- 
 davit, state which are based upon personal knowledge and which upon 
 investigation. ( See note to par. 75, M. C. M. ) 
 
 6. If trial is ordered, the order of reference for trial will be in- 
 dorsed on one original counterpart hereof, as " 1st Ind.," in the form 
 hereon prescribed. 
 
 The counterpart on which such order is indorsed will be the one 
 retained by the trial judge advocate during trial and returned by him 
 
 563 
 
APPENDIX 5. 
 
 with the record of trial to the convening authority. (See par. 796, 
 M. C. M.) 
 
 7. The trial judge advocate will also enter on this same counter- 
 part, in substantially the form hereon prescribed, his certificate of 
 service of the charges and accompanying documents on the accused, 
 as required by paragraph 77&, M. C. M. 
 
 8. The initials of the adjutant indicating entry on pay card when 
 forfeiture is awarded, and the initials of the company or detachment 
 commander indicating entry on service record in case of conviction, 
 will be placed on the original charge sheet of summary courts-martial, 
 completed as the record of trial. 
 
 9. Bulky reports or official documents will not ordinarily be ap- 
 pended or copied, but listed, and the place where they may be found 
 stated in the column so headed, on page I. 1 
 
 * " Page 1 " of A. G. O. Form 594, Is page 560 supra. 
 
 564 
 
APPENDIX 6. 
 FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 INSTRUCTIONS. 
 
 The forms for charges and specifications set forth below constitute 
 a general guide for use in the drafting of charges and specifications 
 under the several articles of war, not only for offenses specifically 
 provided for in the forms but also for like offenses not specifically 
 mentioned therein. In preparing charges the following general rules 
 should be observed: 
 
 (a) When there is more than one charge the charges will be num- 
 bered, using the Roman numerals, viz, I, II, etc. 
 
 (&) When there is more than one specification under a charge the 
 specifications under that charge will be numbered, using the Arabic 
 numerals, viz, 1, 2, etc. 
 
 (c) The form provided for the charge will not in any case be ab- 
 breviated, added to, or deviated from. 
 
 (d) The several forms provided for specifications will be added to 
 or deviated from when circumstances require such addition or de- 
 viation. 
 
 (e) The words inclosed in parentheses or brackets, or both, in the 
 forms for specifications may or may not be used, as circumstances 
 require. 
 
 (f) The blanks inclosed in parentheses in the forms for specifica- 
 tions, indicate that a proper substitute may be used. 
 
 (g) The name of the accused as stated in the specification should, 
 except in a case in which the jurisdiction of the court over the per- 
 son is not dependent upon his being a person subject to military law 
 (e. g., see A. W. 81 and 82), be accompanied by such descriptive lan- 
 guage as will show that he is a person subject to military law and 
 therefore subject to the jurisdiction of the court. Thus, in the ordi- 
 nary case of an officer or soldier in the service, the specification 
 should read " In that Captain John Smith, Field Artillery, did," etc., 
 or " In that Private John Smith, Company A, 7th Infantry, did," etc. 
 These forms are applicable for all persons in the military service 
 whether members of the Regular Army or volunteer forces accepted 
 or mustered into the military service of the United States or members 
 of the National Guard or of other forces which may have been 
 drafted, called or ordered into, or to duty or for training in, the 
 military service of the United States, provided the accused has ac- 
 tually answered such call, draft or order; if, however, the accused 
 has not obeyed the call, draft, or order, his name should be followed 
 
 565 
 
APPENDIX 6. 
 
 by the words "lawfully called (drafted) or (ordered) into the 
 military service of the United States." If the accused has not been 
 assigned to an organization, the word " unassigned " may be employed. 
 In the case of a cadet, the specification should read " In that Cadet 
 John Smith, United States Military Academy, did," etc. In the case 
 of a member of the Marine Corps detached for service with the Armies 
 of the United States by order of the President, the words " detached 
 for service with the Armies of the United States by order of the 
 President" should follow 'the other words of identification and de- 
 scription. When the accused is an officer or enlisted man of the 
 Medical Department of the Navy, serving with a body of Marines 
 detached for service with the Armies of the United States by order 
 of the President, this fact should be alleged as follows : " In that 
 , Medical Department of the Navy, serving with a body of 
 Marines detached for service with the Armies of the United States 
 by order of the President, did," etc. As to the persons subjected to 
 military jurisdiction by paragraph (d) of Article of War 2, the words 
 " a retainer to the camp of United States troops without the terri- 
 torial jurisdiction of the United States," or " a person accompanying 
 the Armies of the United States without the territorial jurisdiction 
 of the United States," or " a person serving with the Armies of the 
 United States without the territorial jurisdiction of the United 
 States," should be employed, unless it be in time of war, when the 
 words " a retainer to the camp of United States troops in the field," 
 or " a person accompanying the Armies of the United States in the 
 field," or "a person serving with the Armies of the United States 
 in the field," should be used, according to the circumstances of each 
 case. As to the persons designated in paragraph (e) of Article of 
 War 2, the name of the accused should be followed by the words " a 
 person. under sentence adjudged by court-martial." 
 
 (7i) The place and date of the commission of the alleged offense 
 will ordinarily be stated in the body of the specification and not in 
 a separate line at the end thereof. 
 
 () The words "officer preferring charge," or words of similar 
 import, will not be used in connection with the signature of the 
 person who subscribes the charges. 
 
 SPECIMEN CHARGES. 
 
 I To be placed on charge sheet, Appendix 5.] 
 CHAEGE I: Violation of the 54th Article of War. 
 
 Specification: In that Pvt. Richard Roe T Company A, Second In- 
 fantry, alias Pvt. John Doe, Company F, Twenty-ninth Infantry, did, 
 without a discharge from said Company A, Second Infantry, procure 
 himself to be enlisted in the military service of the United States at 
 Fort Jay, N. Y., on the 24th day of July, 1917, under the name of 
 John Doe, by willfully concealing from Capt. William White, Medical 
 
 566 
 
FORMS FOR CHARGES A3SV SPECIFICATIONS. 
 
 Corps, a recruiting officer, the fact of his prior enlistment in said 
 Company A, Second Infantry, and has at Fort Jay, N. Y., since said 
 date, received allowances under said enlistment 
 
 CHARGE II: Violation of the 58th Article of War. 
 
 Specification: In that Pvt. Richard Roe, Company A, Second In- 
 fantry, alias Pvt. John Doe, Company F, Twenty-ninth Infantry, did, 
 at Fort Jay, N. Y., on or about the 6th day of March, 1917, desert the 
 service of the United States, and did remain absent in desertion until 
 he was apprehended at Fort Jay, N. Y., on or about July 24, 1917. 
 
 CHARGE III: Violation of the 8th Article of War. 
 
 Specification 1: In that Pvt. Richard Roe, Company A, Second In- 
 fantry, alias Pvt. John Doe, Company F, Twenty-ninth Infantry, did, 
 at Fort Jay, N. Y., on or about March 6, 1917, wrongfully strike in the 
 face with his fist Pvt. John W. Davis, Third Company, Fort Hamilton, 
 then a sentinel in the execution of his duty. 
 
 Specification 2: In that Pvt. Richard Roe, Company A, Second In- 
 fantry, alias Pvt." John Doe, Company F, Twenty-ninth Infantry, hav- 
 ing at Fort Jay, N. Y., on or about the 6th day of March, 1917, re- 
 ceived a lawful order to halt from Pvt. John W. Davis, Third Com- 
 pany, Fort Hamilton, then a sentinel in the execution of his duty, did 
 willfully disobey the same. 
 
 JOHN JONES, 
 
 Captain, C. A. C. 
 
 FORMS. 
 
 [See instructions at the beginning of this appendix,] 
 CHAKGE: Violation of the 54th Article of War. 
 
 1. Specification: In that Pvt. , Company , In- 
 fantry, alia-s Pvt. , Company , Infantry, did, 
 
 without a discharge from said Infantry, procure himself to be 
 
 enlisted in the military service of the United States at , on 
 
 the day of , 19 , under the name of , (by means 
 
 of willfully misrepresenting to , a recruiting officer that he had 
 
 never been enlisted in the service of the United States and) by 
 
 means of willfully concealing from (said) ( , a) recruiting 
 
 officer, the fact of his prior enlistment in said Infantry; 
 
 and has, at and since said date, received (pay) (allowances) 
 
 (pay and allowances) under said enlistment. 
 
 2. Specification: In that - did procure himself to be enlisted 
 
 in the military service of the United States, at , on the 
 
 day of , 19 , [by means of willfully misrepresenting to , 
 
 a recruiting officer, that he had never been discharged from the 
 service of the United States (on account of disability) (ou account 
 
APPENDIX 6. 
 
 of a sentence imposed by a civil court) (pursuant to the sentence of 
 a general court-martial) (except with good character) and] by means 
 
 of willfully concealing from (said) ( , a) recruiting officer the 
 
 fact that (under the name of ) he had been discharged 
 
 at on the day of , 19 , from (on ac- 
 count of disability) (on account of a sentence imposed by a civil 
 court) (pursuant to the sentence of a general court-martial) (not 
 with good character) when, except for such (misrepresentation) 
 
 (concealment) he would not have been enlisted; and has, at 
 
 and since said enlistment received (pay) (allowances) (pay and al- 
 lowances) thereunder. 
 
 3. Specification: In that did procure himself to be enlisted 
 
 in the military service of the United States, at , on the 
 
 day of , 19 , [by means of willfully misrepresenting to , 
 
 a recruiting officer, that he had never been (convicted of a felony) 
 (imprisoned) in a (reformatory) (jail) (penitentiary) and] by means 
 
 of willfully concealing from (said) ( , a) recruiting officer, the 
 
 fact that (under the name of ) (he had been convicted of a 
 
 felony, to wit, by the court in and for ,) (had 
 
 been imprisoned In a (reformatory) (jail) (penitentiary) under a 
 sentence of a civil court) when, except for such (misrepresentation) 
 
 (concealment) he would not have been enlisted; and has, at 
 
 and since said enlistment received (pay) (allowances) (pay and allow- 
 ances) thereunder. 
 
 4. Specification: In that did procure himself to be enlisted 
 
 in the military service of the United States at , on the 
 
 day of , 19 , [by means of willfully misrepresenting to , 
 
 a recruiting officer, that he was ( years of age) (un- 
 married) ( ) and] by means of willfully concealing from 
 
 (said) ( , a) recruiting officer, the fact that he was then 
 
 (under the age of eighteen years) (a married man) ( ), when, 
 
 except for such (misrepresentation) (concealment) he would not have 
 
 been enlisted ; and has, at and since said enlistment, received 
 
 (pay) (allowances) (pay and allowances) thereunder. 
 
 CHARGE: Violation of the 55th Article of War. 
 
 5. Specification: In that - - did at , on the day 
 
 of , 19 , knowingly (enlist) (muster) into the military service 
 
 of the United States one , who, as he, the said , then 
 
 well knew, was (an) (insane) (intoxicated) ( ) (a) person 
 
 (who had been convicted of a felony) (under the age of sixteen (16) 
 years) ( ), whose (enlistment) (muster) was prohibited by 
 
 (law) (regulations) (orders). 
 
 CHARGE: Violation of the 56th Article of War. 
 
 6. Specification: In that , did, at , on the day 
 
 of , 19 , knowingly make a false muster of ( ) as 
 
 568 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 (present) ( ) when the said - , as he, the said - , then 
 well knew, was not (present) ( - ), but was (absent with 
 leave) ( - ). 
 
 7. Specification: In that - did, at - , on the - day 
 of - , 19 , knowingly make a false muster of ( - ) as a 
 soldier and a member of ( - ), when the said - , as he, the 
 said -- then well knew, was not a soldier and a member of 
 said ( - ) but was a (civilian) ( - ). 
 
 8. Specification: In that - did, at - , on the - day 
 of -- , 19 , (sign) (direct - to sign) (allow - to sign) 
 the muster roll of - , for the period -- to - , 19 , he, 
 the said - , then well knowing that the said muster roll con- 
 tained the name of - as (a soldier and a member of said - ) 
 (an officer of said - ) (and as present for duty therewith), and 
 that the said - was not (a soldier) (a member of said - ) 
 (an officer of said - ) (present for duty) but was then (a civilian) 
 (a member of company - ) (wholly absent from military duty) 
 
 9. Specification: In that - did, at - , on the - day of 
 , 19 , (sign) (direct - to sign) (allow - to sign) the 
 
 muster roll of - , for the period - to - , 19 , he the 
 said - , then well knowing that the said muster roll contained a 
 false statement that - (a) (private) ( - ) of said - ) 
 was (present) (present and mustered) ( - ), and that said state- 
 ment was false, in that the said - was not (present) (present 
 and mustered) ( - ) but was then (absent with leave) (absent 
 without leave) ( - ). 
 
 10. Specification: In that - did, at - , on or about the 
 day of - , 19 , wrongfully take from - (the sum of 
 
 $ - ) ( - ), as a consideration to him - , for knowingly 
 permitting the muster-in roll of -- on the mustering in of 
 that falsely to show as (mustered in) ( - ), - , who, 
 as he, the said - , then well knew, was (were) not (mustered in) 
 
 11. Specification: In that - did, at - , on or about the 
 - day of - , 19 , wrongfully take from - the sum of 
 $ - , ( -- ) as a consideration to him - , for allowing the 
 muster roll of - , for the period of -- to - , 19 , to 
 show - as (present and mustered) ( - ), when, as he, the 
 said - , then well knew, he (they) was (were) not present and 
 mustered as shown on said muster roll. 
 
 12. Specification: In that - did, at - , on the - day 
 of - , 19 , knowingly muster one - as (an officer) (a sol- 
 dier) of , when the said -- , as he, the said , then well 
 knew was not (an officer) (a soldier) of - , but was then a 
 (civilian) ( - ). 
 
 569 
 
APPENDIX 6. 
 
 CHARGE: Violation of the 57th Article of War. 
 
 13. Specification: In that , being in command of , and 
 
 it being his duty to render to a return of the state of (the 
 
 troops under his command) (the thereunto belonging) for the 
 
 period to , 19 , did, at on the day of 
 
 , 19 , knowingly make a false return for said period, which 
 
 return was false in that it showed (one as absent with leave) 
 
 ( ), when as he, the said , then well knew (the said 
 
 was absent without leave) ( ). 
 
 14. Specification: In that , being in command of , and 
 
 it being his duty to render to the a return of the state of (the 
 
 troops under his command) (the thereto belonging) for the 
 
 period to , did (on and after the day of , 
 
 19 ) (from until ), through (neglect) (design), omit 
 
 to render such return. 
 
 CHARGE: Violation of the 58th Article of War. 
 
 15. Specification: In that did, at , on or about the 
 
 day of , 19 , desert the service of the United States, and 
 
 did remain absent in desertion until he (was apprehended) (surren- 
 dered himself) at on or about the day of , 19 . 
 
 16. Specification: In that did, at on or about the 
 
 day of , 19 , in the (execution of a conspiracy to desert 
 
 the service of the United States previously entered into with 
 
 and ) (presence of , which the forces, of which the ac- 
 cused was a member, were then opposing), desert the service of the 
 United States and did remain absent in desertion until he (was ap- 
 prehended) (surrendered himself) at on or about the - 
 
 day of , 19 . 
 
 17. Specification: In that and did, at , on or 
 
 about the day of , 19 , acting jointly, in pursuance of a 
 
 common intent and in the execution of a conspiracy to desert the 
 service of the United States previously entered into by them (and 
 in the presence of , which the forces, of which they were mem- 
 bers, were then opposing), desert the service of the United States and 
 did remain absent in desertion until they (were apprehended) (sur- 
 rendered themselves) at on or about the day of -, 
 
 19. 
 
 18. Specification: In that did, at , on or about the 
 
 day of , 19 , desert the service of the United States, in 
 
 that he, having tendered his resignation as an officer of the Army, 
 did, prior to due notice of the acceptance of said resignation, and 
 with the intent to absent himself permanently therefrom, quit his 
 (post) (proper duties) without leave. 
 
 [NOTE. See A. W. 28.] 
 
 19. Specification: In that did, at , on or about the 
 
 day of , 19 , desert the service of the Unk^d States, in 
 
 that he, without having first received a regular discharge from the 
 
 570 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 military service, did, again enlist in the (Army) (militia, in the 
 service of the United States) (Navy) (Marine Corps of the United 
 
 States) (Army of ). 
 
 [NOTE. See A. W. 28.1 
 
 20. Specification: In that did, at , on or about the 
 
 day of , 19 , desert the service of the United States, by 
 
 quitting his (organization) (place of duty), with the intent (to avoid 
 hazardous duty, to wit: ) (to shirk important service, to wit: 
 
 ______, \ 
 
 [NOTE. See A. W. 28.] 
 
 21. Specification: In that did, at , on or about the 
 
 day of , 19 , attempt to desert the service of the 
 
 United States by (seeking passage to on the steamship ) 
 
 ( ), with intent permanently to remain away from the military 
 service. 
 
 22. Specification: In that did, at , on or about the 
 
 day of , 19 , in the (execution of a conspiracy to desert 
 
 the service of the United States previously entered into with 
 
 and ) (presence of , which the forces of which he was a 
 
 member were then opposing) attempt to desert the service of the 
 
 United States by (seeking passage to on the steamship ) 
 
 ( ), with intent permanently to remain away from the military 
 
 service. 
 
 CHARGE: Violation of the 59th Article of War. 
 
 23. Specification: In that did, at , on or about 
 
 the day of , 19 , (advise) (persuade) to desert 
 
 the service of the United States by (saying to him 
 
 , or words to that effect) ( ). 
 
 24. Specification: In that did, at , on or about 
 
 the day of , 19 , knowingly assist to desert 
 
 the service of the United States (by supplying him with a railroad 
 
 ticket from to ) ( ), he, the said , then 
 
 well knowing that the said intended to use the (railroad 
 
 ticket) ( ) so supplied him in furtherance of his plan to desert 
 
 CHARGE: Violation of the 60th Article of War. 
 
 25. Specification: In that , having discovered that , a 
 
 soldier in his command, was a deserter from the (military service) 
 
 (naval service) (Marine Corps) did, at , from about the 
 
 day of , to about the day of , 19 , retain said 
 
 deserter in his command without informing superior authority or the 
 commander of the organization to which the deserter belonged of 
 the presence of said deserter in his command. 
 
 CHARGE: Violation of the 61st Article of War. 
 
 26. Specification: In that did, at - , on or about 
 
 the day of , 19 , fail to repair at the fixed time to the 
 properly appointed place (of assembly) for . 
 
 571 
 
APPENDIX 6. 
 
 27. Specification: In that did, at , on or about 
 
 the day of , 19 , without proper leave, go from the 
 
 properly appointed place (of assembly) for , after having re- 
 paired thereto for the performance of said duty. 
 
 28. Specification: In that , did at , without proper 
 
 leave, absent himself from his from about , 19 , to 
 
 about , 19 . 
 
 CHARGE: Violation of the 62d Article of War. 
 
 29. Specification: In that did, at , on or about 
 
 the day of , 19 , use (orally and publicly) ( ) the 
 
 following (contemptuous) (disrespectful) (contemptuous and disre- 
 spectful) words against the (President) (Vice President) (the Con- 
 gress of the United States) (Secretary of War) [(Governor) (Legis- 
 lature) of the (State of ) (Territory of ) ( , a 
 
 possession of the United States), in which he, the said - was 
 then quartered] to wit : , or words to that effect. 
 
 CHARGE: Violation of the 63d Article of War. 
 
 30. Specification: In that did, at , on or about the 
 
 day of , 19 , behave himself with disrespect toward 
 
 , his superior officer, by (saying to him , 
 
 or words to that effect) (contemptuously turning from and leaving 
 him while he was talking to him the said ) ( ). 
 
 CHARGE: Violation of the 64th Article of War. 
 
 31. Specification: In that - did, at , on or about the 
 
 day of , 19 , strike , his superior officer, who 
 
 was then in the execution of his office, (in) (on) the with 
 
 (a) (his) . 
 
 [NOTE. For assaults upon officers amounting to felonies see A. W. 93.] 
 82. Specification: In that did, at ? on or about the 
 
 day of , 19 , (draw) (lift up) a weapon, to wit, 
 
 a against , his superior officer, who was then in the 
 
 execution of his office. 
 
 33. Specification: In that - did, at , on or about the 
 
 day of , 19 , offer violence against , his superior 
 
 officer, who was then in the execution of his office, in that he, the 
 said , did . 
 
 34. Specification: In that , having received a lawful command 
 
 from , his superior officer, to , did at , on or about 
 
 the day of , 19 , willfully disobey the same. 
 
 CHARGE: Violation of the 65th Article of War. 
 
 35. Specification: In that - did, at , on or about the 
 
 day of , 19 , (strike) (assault) , a (war- 
 rant officer) (noncommissioned officer) who was then in the execu- 
 
 572 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 tion of his office, by him (in) (on) the with (a) 
 
 (his) . 
 
 [NOTE. For assaults upon warrant and noncommissioned officers amounting 
 to felonies see A. W. 93.] 
 
 36. Specification: In that did, at , on or about the 
 
 day of , 19 , (attempt) (threaten) to (strike) (as- 
 sault) , a (warrant officer) (noncommissioned officer) [(in) 
 
 (on) the ] with (a) (his) , while said was in the 
 
 execution of his office. 
 
 37. Specification: In that , having received a lawful order 
 
 from , a (warrant officer) (noncommissioned officer) who was 
 
 then in the execution of his office, to , did at , on or 
 
 about the day of , 19 , willfully disobey the same. 
 
 38. Specification: In that did, at , on or about the 
 
 day of , 19 , [use (threatening) (insulting) (threaten- 
 ing and insulting) language,] [behave in an '(insubordinate) (disre- 
 spectful) (insubordinate and direspectful) manner] toward , 
 
 a (warrant officer) (noncommissioned officer) who was then in the 
 
 execution of his office, by (saying to him , or words to that 
 
 effect) ( ). 
 
 CHARGE: Violation of the 66th Article of War. 
 
 39. Specification: In that did, at , on the day 
 
 of , 19 , (attempt to create) (begin) (excite) (cause) a 
 
 mutiny in by [urging the members of said concertedly 
 
 to refuse to obey the lawful orders of , their (commanding) 
 
 (superior) officer, to ] [unlawfully assuming control over 
 
 about soldiers of said (command) ( ), and in the execu- 
 tion of such control causing said soldiers concertedly to disregard and 
 
 defy the lawful orders of , their (commanding) (superior) 
 
 officer to (assemble for drill) ( ),] [ ], with the intent 
 
 to (usurp) (subvert) (override) (neutralize) (usurp, subvert, over- 
 ride and neutralize), for the time being, lawful military authority. 
 
 40. Specification: In that did, at , on or about 
 
 the day of , 19 , voluntarily join in a mutiny which 
 
 had been begun in against the lawful military authority 
 
 of - , the commanding officer thereof, and did, with intent to 
 
 (usurp) (subvert) (override) (neutralize) (usurp, subvert, over- 
 ride, and neutralize) for the time being, in concert with sundry other 
 
 members of said assembled on the (parade ground) ( ), 
 
 refuse to (disperse) (do any further duty) (assemble for 
 drill) ( ). 
 
 CHARGE: Violation of the 67th Article of War. 
 
 41. Specification: In that , being present at a (mutiny) 
 
 (sedition) among the soldiers of , did fail to use his utmost 
 
 endeavor to suppress the same, in that, (having commanded the 
 
 21358 20 37 
 
 573 
 
APPENDIX 6. 
 
 men of his own company to return to their quarters, he took no 
 means to compel their obedience or reduce them to discipline upon 
 their refusal to obey said command) ( ). 
 
 42. Specification: In that , being at and (knowing) 
 
 (having reason to believe) on the day of , 19 , that 
 
 a (mutiny) (sedition) was to take place in , on or about 
 
 the day of , 19 , did fail to give without delay in- 
 formation of said intended mutiny to his commanding officer. 
 
 CHARGE: Violation of the 68th Article of War. 
 
 43. Specification: In that , being engaged in a (quarrel) 
 
 (fray) (disorder) among persons subject to military law, and hav- 
 ing been ordered into (arrest) (confinement) by , did, at , 
 
 on or about the day of , 19 , [(refuse to obey) (draw 
 
 a weapon, to wit a - upon) the said ] [threaten the 
 
 said hy (saying to him (her) , or words to that effect) 
 
 ( )] [do violence to the said , by ]. 
 
 CHARGE: Violation of the 69th Article of War. 
 
 44. Specification: In that , having been lawfully placed In 
 
 (arrest at ) (confinement in ) on or about the 
 
 day of , 19 , did at on or about the day of 
 
 , 19 , (break his said arrest) (escape from said confinement) 
 
 before he was set at liberty by proper authority. 
 
 CHARGE: Violation of the 70th Article of War. 
 
 45. Specification: In that , being then charged with the duty 
 
 of investigating charges preferred against , a person subject 
 
 to military law, who had been placed in (arrest) (confinement), was 
 
 at ? on or about , 19, responsible for unnecessary delay 
 
 in investigating said charges, in that he (did ) (failed to 
 
 CHARGE: Violation of the 71st Article of War. 
 
 46. Specification: In that , being on duty as (provost mar- 
 shal) (commander of the guard) at on or about the - 
 
 day of - , 19 , did refuse to (receive) (keep) one - , a 
 
 prisoner duly committed to his charge by , an officer belonging 
 
 to the forces of the United States who, at the time of committing 
 
 said prisoner, delivered to the said an account in writing, 
 
 signed by himself, of the (crime) (offense) charged against said 
 prisoner. 
 
 CHARGE: Violation of the 72d Article of War. 
 
 47. Specification: In that , (having been) (being) on duty 
 
 as commander of the guard at , did, on or about the day 
 
 f , 19, fail to report in writing to the commanding officer 
 
 574 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 of that (as soon as relieved from his guard) (within 24 hours 
 
 after the confinement of said prisoner) the name of , a prisoner 
 
 committed to his charge, the offense charged against him, and the 
 name of the officer committing him. 
 
 CHARGE: Violation of the 73d Article of War. 
 
 48. Specification: In that did, at , on or about the 
 
 day of , 19 , [without proper authority release] 
 
 [through (neglect) (design) (suffer)] , a prisoner duly com- 
 mitted to his charge (to escape). 
 
 CHARGE: Violation of the 74th Article of War. 
 
 49. Specification: In that , being at the time the command- 
 ing officer at , and an application having been duly made to 
 
 him by the of for the (delivery) (apprehension and 
 
 securing) of , a (soldier) (officer) under his command, who 
 
 was accused of a (crime) (offense) committed against the laws 
 
 of , in order that the said might be brought to trial did, 
 
 at - , on the day of , 19 , (refuse) (willfully 
 
 neglect) to (deliver said to said of ) (aid the 
 
 said of in apprehending and securing the said ). 
 
 CHARGE: Violation of the 75th Article of War. 
 
 50. Specification: In that did, at , on the day 
 
 of , 19, misbehave himself before the enewv, (by (refusing) 
 
 (failing) to advance with his command, which ;l then been or- 
 dered forward by to engage with , which forces, the 
 
 said command was then opposing) ( ). 
 
 51. Specification: In that did, at , on or about the 
 
 day of , 19 , run away from his (company) ( ), 
 
 which was then engaged with the enemy, and did not return thereto 
 until (after the engagement had been concluded) ( ). 
 
 52. Specification: In that - , being present with his 
 
 while it was engaged with the enemy, did at , on or about 
 
 the day of , 19 , shamefully abandon the said 
 
 and (seek safety in the rear) ( ), and did fail to rejoin it 
 
 until (the engagement was concluded) ( ). 
 
 53. Specification: In that did, at , on or about the 
 
 day of , 19 , while before the enemy shamefully (deliver up) 
 
 (abandon) to the enemy , which it was his duty to defend. 
 
 54. Specification: In that did, at , on or about 
 
 the day of , 19 , while before the enemy, by his (mis- 
 conduct) (disobedience) (neglect) endanger the safety of , 
 
 which it was his duty to defend, in that he ( ) ( ) (failed 
 
 and neglected f> post a sufficient number of sentinels). 
 
 55. Specification: In that did, at , on or about the 
 
 day of , 19 , while before the enemy, speak words in- 
 
 575 
 
APPENDIX 6. 
 
 ducing [(the officers) (the soldiers) (the officers and soldic-fcs) of 
 
 ] [ ] (to misbehave themselves before the enemy) (to 
 
 run away from , which was then before the enemy) (shame- 
 fully to abandon their command, which was then engaged with the 
 
 enemy) (shamefully, to deliver up to the enemy, , which it was 
 
 their duty to defend), to wit or words to that effect. 
 
 56. Specification: In that did, at , on or about 
 
 the day of , 19 , while before the enemy speak words 
 
 inducing - - who was then on outpost duty, (shamefully to aban- 
 don his post) ( ), to wit - or words to that effect. 
 
 57. Specification: In that , while before the enemy, did at 
 
 , on the day of , 19 , unlawfully cast away his 
 
 (rifle) (ammunition) ( ). 
 
 58. Specification: In that did, while before the enemy, quit 
 
 his (post) (colors) at , on the day of , 19 , for 
 
 the purpose of (plundering) (pillaging) (plundering and pillaging) 
 
 ( ). 
 
 59. Specification: In that did, while on duty before the 
 
 enemy, occasion a false alarm in the (camp) (garrison) (quarters) 
 
 ( ) at , on or about the day of , 19 , by 
 
 (needlessly and without authority causing the call to arms to be 
 sounded) ( ). 
 
 CHARGE: Violation of the 76th Article of War. 
 
 60. Specification: In that did, at , on or about the 
 
 day of , 19 , (compel) (attempt to compel) , the 
 
 commanding officer of , (to give it up to the enemy) (to 
 
 abandon said ), by . 
 
 CHARGE: Violation of the 77th Article of War. 
 
 61. Specification: In that did, at , on or about the 
 
 day of , 19 , make known the (parole) (countersign), 
 
 to wit, - , to - , a person who, according to the rules and 
 discipline of war, was not entitled to receive it. 
 
 62. Specification: In that - , having received as the proper 
 (parole) (countersign) the word - , did at - , on or about 
 the - day of , 19 , give to - , a person to whom he 
 knew it was his duty to give the proper (parole) (countersign), a 
 (parole) (countersign) different from that which he had received, 
 to wit - . 
 
 CHARGE: Violation of the 78th Article of War. 
 
 63. Specification: In that - did, at - , on or about the 
 - day of - , 19 , force a safeguard, known by him to have 
 been placed over the premises occupied by - , at , by 
 (overwhelming the guard posted for the protection of the same) 
 
 576 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 CHARGE: Violation of the 79th Article of War. 
 
 64. Specification: In that did, at , on or about the 
 
 - day of , 19 , neglect to secure the following public 
 
 property of the United States, which had been taken from the enemy, 
 
 viz, of the value of about $ and of the value of 
 
 about $ , and all of the total value of about $ . 
 
 65. Specification: In that did, at , on or about the 
 
 day of , 19 , wrongfully appropriate to (his own use) 
 
 ( ) the following public property of the United States, taken 
 
 from the enemy, viz : of the value of about $ and 
 
 of the value of about S , and all of the total value of about 
 
 CHARGE: Violation of the 80th Article of War. 
 
 66. Specification: In that did, at , on about the 
 
 day of , 19 , unlawfully (buy) (sell) (trade in) (deal in) 
 
 (dispose of) the following (captured) (abandoned) property of the 
 United States-, namely: of the value of about $ and 
 
 of the value of about $ , and all of the total value of 
 
 about $ , thereby (receiving) (expecting) as (profit) (benefit) 
 
 (advantage) (profit, benefit and advantage) to (himself) , his 
 
 (brother) ( ), (the sum of ) ( of the value ). 
 
 67. Specification: In that did, at , on or about the 
 
 day of , 19 , fail to give notice of and to turn over 
 
 without delay to proper authority the following (captured) (aban- 
 doned) property of the United States, which had come into his (pos- 
 session) (custody) (control), namely: of the value of about 
 
 $ and of the value of about $ , and all of the total 
 
 value of about $ . 
 
 CHARGE: Violation of the 81st Article of War. 
 
 68. Specification: In that did, at , on or about the 
 
 day of , 19 , (relieve) (attempt to relieve) the enemy 
 
 with (arms) (ammunition) (supplies) (money) ( ), by fur- 
 nishing and delivering to certain members of the enemy's army , 
 
 of the value of about $ , and , of the value of about 
 
 $ , all of the total value of $ . 
 
 69. Specification: In that did, at , on or about the 
 
 day of , 19 , knowingly (harbor) (protect) (harbor and 
 
 protect) , a person whom he, the said , then knew to be 
 
 a member of the enemy's forces (and who was then being sought by 
 a patrol of the United States forces), by (concealing the said member 
 of the enemy's forces in his house) ( ). 
 
 70. Specification: In that did, at , on or about the 
 
 day of , 19 , knowingly give intelligence to the enemy, (by in- 
 forming a patrol of the enemy's forces of the whereabouts of a military 
 patrol of the United States forces) (by ). 
 
 577 
 
APPENDIX 6. 
 
 71. Specification: In that did, at , on or about the 
 
 day of , 19 , knowingly (hold correspondence with) 
 
 (give intelligence to) (hold correspondence with and give intelligence 
 to) the enemy (directly by writing and transmitting secretly through 
 
 the lines to one , whom he, the said , then knew to be an 
 
 (officer) ( ) of the enemy's army, a communication (in woids 
 
 and figures as follows) (substantially as follows) (indirectly by pub- 
 lishing in - , a newspaper published at , a communication 
 
 in words and figures as follows) (substantially as follows), to wit: 
 , and which communication was intended to reach the enemy. 
 
 CHARGE: Violation of the 82d Article of War. 
 
 72. Specification: In that was, at , on or about the 
 
 - day of , 19 , found (lurking) (acting) (lurking and 
 
 acting) as a spy in and about , the (fortification) (post) (quar- 
 ters) (encampment) of the Armies of the United States there situ- 
 ated, ( ) for the purpose of (collecting) (attempting to collect) 
 
 material information in regard to the (numbers) (resources) (op- 
 erations) ( ) of the military forces of the United States, with 
 
 intent to impart the same to the enemy. 
 
 CHARGE: Violation of the 83d Article of War. 
 
 73. Specification: In that did, at , on or about the 
 
 day of , 19 , (willfully) (through neglect) suffer , 
 
 of the value of $ , military property belonging to the United 
 
 States, to be (lost) (spoiled by = ) (damaged by ) [wrong- 
 fully disposed of by (sale to ) ( )]. 
 
 CHARGE: Violation of the 84th Article of War. 
 
 74. Specification: In that - did, at , on or about the 
 
 day of , 19 , (unlawfully sell to ) (wrongfully 
 
 dispose of by ) of the value of $ , issued for use 
 
 in the military service of the United States. 
 
 75. Specification: In that did, at , on or about the 
 
 day of , 19 , (willfully) (through neglect) (injure by 
 
 ) (lose) , of the value of $ , issued for use in the 
 
 military service of the United States. 
 
 CHARGE: Violation of the 85th Article of War. 
 
 76. Specification: In that was, at , on or about the 
 
 day of , 19 , found drunk while on duty as . 
 
 CHARGE: Violation of the 86th Article of War. 
 
 77. Specification: In that , being on guard and posted as a 
 
 sentinel, at , on or about the day of , 19 , was 
 
 found (drunk) (sleeping) upon his post. 
 
 78. Specification: In that , being on guard and posted as a 
 
 sentinel, at - , on or about the day of , 19 , did 
 
 leave his post before he was regularly relieved. 
 
 578 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 CHARGE: Violation of the 87th Article of War. 
 
 79. Specification: In that , who was then commanding in 
 
 , where troops of the United States were serving, did, on or 
 
 about the day of , 19 , for his private advantage, lay 
 
 a (duty)' (imposition) (duty ami imposition) of ( per cent) 
 
 ( ) upon the sales of (victuals) (certain necessaries of life, to 
 
 wit, ) brought into said , for the use of the troops thereat. 
 
 80. Specification: In that , who was then commanding , 
 
 where troops of the United States were serving, did on or about the 
 
 - day of , 19 , for his private advantage, become inter- 
 ested in the sale of (victuals) (certain necessaries of life, to wit 
 
 ) ( ), brought into said for the use of the troops 
 
 thereat by - , by (receiving) (entering into an agreement to re- 
 ceive) from the said - ( per cent of the profits on said sales) 
 (the sum of $ ) as a consideration for the privilege (of ) ex- 
 tended by him to said . 
 
 CHARGE: Violation of the 88th Article of War. 
 
 81. Specification: In that did, at , on or about 
 
 the day of , 19 , unlawfully (abuse) (intimidate) (do 
 
 violence to) (and wrongfully interfere with) , a person bring- 
 ing (provisions) (supplies) (certain necessaries) to wit - , to 
 
 the (camp) (garrison) (quarters) of the forces of the United States 
 
 at - by [striking and beating the said ] [threatening to 
 
 kill the said if he continued to bring such (provisions) (sup- 
 plies) (necessaries) into said (camp) (garrison) (quarters)] [ ] 
 
 [preventing the said from passing over a road leading into 
 
 said - ] [ ]. 
 
 CHARGE: Violation of the 89th Article of War. 
 
 82. Specification: In that , being with , (in the (quar- 
 ters) (garrison) (camp) at ) (while on the march from- 
 
 to ) did, at , on or about the day of , 19, 
 
 commit (waste) (spoil) upon the property of , by . 
 
 83. Specification: In that , being with , (in the (quar- 
 ters) (garrison) (camp) at ) (while on the march from 
 
 to ) did, at , on or about the day of , 19 , 
 
 willfully and unlawfully, and without having been ordered by his 
 commanding officer so to do, destroy - the property of - , 
 of the value of . 
 
 84. Specification: In that . being with , (in the (quar- 
 ters) (garrison) (camp) at ) (while on the march from - 
 
 to ) did, at , on or about the day of , 19 , 
 
 commit a depredation upon (an) (a) (orchard) ( ) belonging 
 
 to , and situated at or near , by unlawfully (entering the 
 
 same and removing growing fruit from the trees of said orchard) 
 
 579 
 
APPENDIX 6. 
 
 85. Specification: In that , and , being with 
 
 (in the (quarters) (garrison) (camp) at ) (while on 
 
 the march from to ) did, at , on or about the 
 
 day of ~, 19 , commit a riot, in that they, together 
 
 with certain other (soldiers) (persons) to the number of - , 
 whose names are unknown, did, (with force and arms) unlawfully 
 and riotously, and in a, violent and tumultuous manner, assemble to 
 disturb the peace of , and having so assembled, did (unlaw- 
 fully, riotously and in a violent and tumultuous manner disturb, enter 
 and break up ) (unlawfully and riotously assault by 
 
 ,) to the terror and disturbance of . 
 
 86. Specification: In that - , who was then the commanding 
 
 officer of , at , did, on the - day of , 19, 
 
 complaint having been made to him that (damage had been done to 
 
 , the property of ) ( , the property of , had 
 
 been taken by) ( , a ) ( soldiers) of his 
 
 command, (a) person (s) subject to military law, , (refuse) 
 
 (omit) to see reparation made to the said so far as said 's 
 
 pay would go toward such reparation and as provided for in the 105th 
 Article of War, by . 
 
 CHARGE: Violation of the 90th Article of War. 
 
 87. Specification: In that did at , on or about 
 
 the day of , 19 , wrongfully use a (reproachful) (pro- 
 voking) (reproachful and provoking) (speech to wit: - - or 
 
 words to that effect, against) (gesture to ) (by shaking his 
 
 closed fist in the face of the said ) ( ). 
 
 CHARGE: Violation of the 91st Article of War. 
 
 88. Specification: In that (and ) did at , on 
 
 or about the day of , 19 , fight a duel, (with ) 
 
 using, as weapons therefor, (swords) (pistols) ( ). 
 
 89. Specification: In that did, at , on or about 
 
 the day of , 19 , promote a duel between 
 
 and by knowingly acting as a messenger for and 
 
 knowingly carrying from said to said a challenge to 
 
 fight a duel. 
 
 90. Specification: In that , being officer of the day at - 
 
 and having knowledge that and intended and were 
 
 about to engage in a duel near that , did on or about the 
 
 day of , 19 , connive at the fighting of said duel by knowingly 
 permitting , one of the parties to said proposed duel, to leave 
 the post and go toward the place appointed for said duel and at the 
 time and at the hour which he, , then knew had been appointed 
 therefor. 
 
 91. Specification: In that , being officer of the day at , 
 
 and having knowledge on or about the day of , 19 
 
 580 
 
FORMS FOB CHARGES AND SPECIFICATIONS. 
 
 that a challenge to fight a duel (had been sent) (was about to be 
 sent) by - to - , did fail to report that fact promptly to 
 the proper authority. 
 
 CHARGE: Violation of the 92d Article of War. 
 
 92. Specification: In that did, at , on or about 
 
 the day of , 19 , with malice aforethought, willfully, 
 
 deliberately, feloniously, unlawfully, and with premeditation kill 
 one , a human being by (shooting him with a rifle) ( ). 
 
 93. Specification: In that did, at , on or about 
 
 the day of , 19 , forcibly and feloniously, against her 
 
 will, have carnal knowledge of . 
 
 [NOTE. For charging the offense denounced by section 279, Federal 
 Penal Code (having carnal knowledge of female uuder 16), see Form 178. 
 infra.] 
 
 CHARGE: Violation of the 93d Article of War. 
 
 94. Specification: In that did, at , on or about the 
 
 day of , 19 , willfully, feloniously, and unlawfully kill 
 
 , a human being by him (in) (on) the with 
 
 95. Specification: In that did, at , on or about the 
 
 day of , 19 , unlawfully, willfully, and feloniously cut 
 
 off the (hand) (arm) ( ) of . 
 
 [NOTE. For the offense of maiming, see Form No. 170, infra.] 
 
 96. Specification: In that did, at , on or about the 
 
 day of , 19 , willfully, maliciously, unlawfully and 
 
 feloniously [(set fire to) (burn) (attempt to burn)] [by means of a 
 dangerous explosive, to wit (destroy) (attempt to destroy) ] the 
 
 (dwelling house) (store) (barn) (stable) (a building, to wit: , 
 
 parcel of the dwelling house) of . 
 
 97. Specification: In that did, at , on or about the 
 
 day of , 19 , in the nighttime feloniously and burglari- 
 ously break and enter the (dwelling house) ( within the curtil- 
 age) of , with intent to commit a felony, viz, (larceny) (rape) 
 
 (murder) ( ). 
 
 98. Specification: In that did, at , on or about the 
 
 day of 19 , unlawfully and feloniously (break and 
 
 enter) (enter without breaking) the (dwelling) (bank) (store) 
 (warehouse) (shop) (stable) ( ) (apartment) (room) (steam- 
 boat) (canal boat) (vessel) ( ) (railroad car) (yard, where 
 
 Oumber) (coal) ( ) was deposited and kept for the purpose of 
 
 trade) with intent (to break and carry away a part thereof, to wit, 
 
 ) (to break and carry away a (fixture, thereof, to wit, )' 
 
 ( , a thing (attached to) (connected with said ) (to com- 
 mit a criminal offense, to wit, ). 
 
 581 
 
APPENDIX 6. 
 
 99. Specification: In that did, at , on or about the 
 
 day of , 19 , by force and violence and by putting him 
 
 in fear feloniously take, steal and carry away from the (person) 
 
 (presence) of , , the property of , value about 
 
 $ . 
 
 [NOTE. While under section 284 of the Federal Penal Code a specification 
 in the following form (No. 99) is sufficient, it is generally preferable to follow 
 Form No. 98, in order that the court may make a finding of guilty of the 
 lesser included offense of larceny should only this offense be proved.] 
 
 100. Specification: In that - did, at , on or about the 
 day of , 19 , by force and violence and by putting him 
 
 in fear, feloniously take from the (person) (presence) of , 
 
 , value about $ . 
 
 101. Specification: In that did, at , on or about the 
 
 - day of , 19 , feloniously take, steal, and carry away 
 
 , value about $ , the property of . 
 
 102. Specification: In that did, at , on or about the 
 
 day of , 19 , fraudulently convert to his own use and 
 
 benefit , value about $ , the property of , intrusted 
 
 to him (by the said ) (for by ), for the purpose 
 
 of applying the same to the use and benefit of the said , (the 
 
 owner) (the person so delivering) said property. 
 
 103. Specification: In that , being at the time the (agent) 
 
 (attorney) (clerk) (servant) ( , an officer) of ( ) (an 
 
 association) (an incorporated company) did [wrongfully convert to 
 his own use] [fraudulently (take) (make way with) (secrete) with 
 intent to convert the same to his own use] , of the value of 
 
 , the property of - , which came (into his possession) 
 (under his care) by virtue of his (employment) (office). 
 
 104. Specification: In that , having taken an oath in a (trial 
 
 by court-martial of ) (deposition for use in a trial by 
 
 court-martial of ) ( ), a case in which a law of 
 
 the United States authorizes an oath to be administered, before 
 , a competent (tribunal) (officer) (person) that [he w r ould 
 (testify) (declare) (depose) (certify) truly] [(certain written tes- 
 timony) a (declaration) (deposition) (certificate) subscribed by him 
 
 was true] did, at , on or about the day of , 19 , 
 
 willfully, corruptly, and contrary to such oath, (state) (subscribe 
 
 said - , stating) in substance that ] which (statement) 
 
 (declaration) (deposition) (certificate) was a material matter and 
 which statement he did not believe to be true. 
 
 [NOTE. For perjury under Section 25 of the War Risk Insurance Act, see 
 Form No. 178.] 
 
 105. Specification: In that did, at , on or about the 
 
 day of , 19, with intent to (defraud) (injure) (de- 
 fraud and injure) falsely (make) [alter] (in its entirety) a certain 
 (check) ( ) in the following words and figures, to-wit: 
 
 582 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 [by - ] which said (check) ( - ) was a writing of a (public) 
 (private) nature, which might operate to the prejudice of another. 
 
 106. Specification: In that - did, at - , on or about the 
 
 - day of - , 19 , with Intent to (defraud) (prejudice the 
 right of another) (defraud and prejudice the right of another) will- 
 fully, unlawfully and feloniously, (pass) (utter) (publish) [attempt 
 to (pass) (utter) (publish)] as true and genuine a certain - in 
 words and figures as follows: - , a writing of a (public) (pri- 
 vate) nature, which might operate to the prejudice of another, which 
 said - was, as he, the said - then well knew, falsely (made) 
 (altered) and forged. 
 
 107. Specification: In that - did, at - , on or about the 
 
 - day of - , 19 , commit the crime of sodomy, by feloni- 
 ously and against the order of nature having carnal connection with 
 ( - ) (a mare, the same being a beast) ( - ). 
 
 108. Specification: In that - did, at - , on or about 
 the day of - , 19 , with intent to (commit a felony, viz, 
 
 ) (do him bodily harm), commit an assault upon - , by 
 willfully and feloniously (striking) ( - ) the said - (in) 
 (on) the - with a - . 
 
 109. Specification: In that - did, at - , on or about 
 the -- day of - , 19 , with intent to do him bodily harm, 
 commit an assault upon - , by (shooting) (striking) (cutting) 
 ( - ) him (in) (on) the - , with a dangerous (weapon) 
 (instrument) (thing) to wit, a (pistol) (a pickax) (bayonet) 
 
 CHAEGE: Violation of the 94th Article of War. 
 110. Specification: In that - did, at - , on or about the 
 day of - 19 , (make) (cause to be made by ) a claim 
 
 against the [United States by presenting to - ,] [(Finance 
 Officer at - ) ( - )] an officer of the United States, duly 
 authorized to (approve) (allow) (pay) (approve, allow and pay) 
 such claims, in the amount of $ - for (private property alleged 
 to have been (lost) (destroyed) in the military service) ( ), 
 which claim was (false) (fraudulent) (false and fraudulent) in 
 that - , and was then known by said -- to be (false) 
 (fraudulent) (false and fraudulent). 
 
 111. Specification: In that - did, at - , on or about 
 the - - day of - , 19 , (present) (cause to be presented by 
 - ) for (approval) (payment) (approval and payment) a claim 
 against the [United States by (presenting) (causing to be presented) 
 to ,] [(Finance Officer at ) ( ) an officer of the 
 United States, duly authorized to (approve) (pay) (approve and 
 pay)] such claims, in the amount of $ , for (services alleged to 
 have been rendered to the United States by - ) ( - ), which 
 claim was (false) (fraudulent) (false and fraudulent) in that - , 
 and was then known by the said - - to be (false) (fraudulent) 
 (false and fraudulent). 
 
 583 
 
APPENDIX 6. 
 
 112. Specification: In that did, at , on or about 
 
 the day of , 19 , enter into an (agreement) (con- 
 spiracy) (agreement and conspiracy) with , to defraud the 
 
 United States by (obtaining) (aiding - to obtain) the (allow- 
 ance) (payment) (allowance and payment) of a (false) (fraudulent) 
 (false and fraudulent) claim against the United States in the 
 amount of $ , for (supplies) ( ) alleged to have been fur- 
 nished to the United States by , which claim was (false) 
 
 (fraudulent) (false and fraudulent) in that , and was then 
 
 known by the said to be (false) (fraudulent) (false and 
 
 fraudulent). 
 
 113. Specification: In that , for the purpose of (obtaining) 
 
 (aiding others, viz, , to obtain) the (approval) (allowance) 
 
 (payment) (approval, allowance, and payment) of a claim against 
 the [United States, by presenting to - ] [(Finance Officer at 
 
 ) ( ), an officer of the United States duly authorized to 
 
 (approve) (pay) (allow) (approve, pay and allow) such claims] did. 
 
 at , on or about the day of , 19 , (make) (use) 
 
 (make and use) [(procure) (advise) the (making) (use) (making 
 
 and use) of] a certain (writing) (paper) to wit: , which said 
 
 , as he, the said , then knew contained a statement that 
 
 , which statement was (false) (fraudulent) (false and fraud- 
 ulent) in that , and was then known by the said to be 
 
 (false) (fraudulent) (false and fraudulent). 
 
 114. Specification: In that , for the purpose of (obtaining) 
 
 (aiding others, viz, to obtain) the (approval) (allowance) 
 
 (payment) (approval, allowance, and payment) of a claim against 
 the [United States by presenting to - ,] [(Finance Officer at 
 
 ) ( ), an officer of the United States duly authorized to 
 
 (approve) (allow) (pay) (approve, allow and pay) such claims] did, 
 at , on or about the day of , 19 , (make) [(pro- 
 cure) (advise) (advise and procure) the making of] an oath (by 
 
 ) to (the fact that ) (to a certain (writing) (paper) 
 
 to wit , to the effect that ) which said oath was false in 
 
 that , and was then known by the said to be false. 
 
 115. Specification: In that , for the purpose of (obtaining) 
 
 (aiding others, viz, to obtain) the (approval) (allowance) 
 
 (payment) (approval, allowance and payment) of a claim against 
 the [United States by presenting to ,] [(Finance Officer at 
 
 ) ( ) an officer of the United States, duly authorized to 
 
 (approve) (allow) (pay) (approve, allow and pay) such claims] did, 
 
 at , on or about the day of , 19 , (forge) 
 
 (counterfeit) (forge and counterfeit) [(procure) (advise) (procure 
 and advise) the (forging) (counterfeiting) (forging and counter- 
 feiting) of] the signature of upon a , ( ) 
 
 [by ] in words and figures as follows : . 
 
 584 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 116. Specification: In that , for the purpose of (obtaining) 
 
 (aiding others to obtain) the (approval) (allowance) (payment) 
 (approval, allowance, and payment) of a claim against the [United 
 
 States by presenting to ] [ (Finance Officer at ) ( ), 
 
 an officer of the United States, duly authorized to (approve) (allow) 
 
 (pay) (approve, allow and pay) such claims] did, at , on or 
 
 about the day of , 19 , (use) (advise the use of) 
 
 (procure the use of) the signature of on a certain (writing) 
 
 (paper) to wit, such signature, being (forged) (counterfeited) 
 
 (forged and counterfeited), and then known by the said to be 
 
 (forged) (counterfeited) (forged and counterfeited). 
 
 117. Specification: In that , having (charge) (possession) 
 
 (custody) (control) of (money) ( ) of the United States, (fur- 
 nished) (intended) (furnished and intended) for the military service 
 
 thereof, did, at , on or about the day of , 19 , 
 
 knowingly (deliver) (cause to be delivered) to , the said , 
 
 having authority to receive the same, (an amount) which, as he, 
 
 , then knew was ( dollars cents) ( ) less 
 
 than the (amount) for which he received a (certificate) (receipt), 
 from the said . 
 
 118. Specification: In that , being authorized to (make) (de- 
 liver) (make and deliver) a paper certifying the receipt of property 
 of the United States (furnished) (intended) (furnished and intended) 
 
 for the military service thereof, did, at , on or about the 
 
 day of , 19 , (make) (deliver) (make and deliver) to a 
 
 writing in words and figures as follows: , without having full 
 
 knowledge of the truth of the statements therein contained and with 
 the intent to defraud the United States. 
 
 119. Specification: In that did, at , on or about the 
 
 day of , 19 , feloniously take, steal, and carry away 
 
 of the value of about $ , property of the United States 
 
 (furnished) (intended) (furnished and intended) for the military 
 service thereof. 
 
 120. Specification: In that , being at the time - , did, on 
 
 the day of , 19 , feloniously embezzle by fraudulently 
 
 converting to his own use and benefit, of the value of 1 
 
 the property of the United States, (furnished) (intended) (furnished 
 and intended) for the military service thereof, intrusted to him the 
 
 said by for the purpose of applying the same to the use 
 
 and benefit of the United States. 
 
 121. Specification: In that did, at , on or about the 
 
 day of , 19 , (knowingly and willfully misappropriate) 
 
 (knowingly and willfully apply to his own use) (knowingly and will- 
 fully apply to his own benefit) (knowingly and willfully apply to his 
 own use and benefit) [(wrongfuly) (knowingly and without proper 
 authority) (wrongfully and knowingly) (sell) (dispose of by )] 
 
 of the value of about $ , property of the United 
 
 585 
 
APPENDIX 6. 
 
 States (furnished) (intended) (furnished and Intended) for the mili- 
 tary service thereof. 
 
 122. Specification: In that did, at , on or about the 
 
 day of , 19 , knowingly (purchase) (receive in pledge 
 
 for an (obligation) (indebtedness) ) from -, (in) (em- 
 ployed in) the military (service) (forces) of the United States , 
 
 of the value of about $ , property of the United States, the said 
 
 not having the lawful right to (sell) (pledge) the same. 
 
 CHARGE: Violation of the 95th Article of War. 
 
 123. Specification: In that did, at , on or about the 
 
 - day of , 19 , [with intent to defraud] [with intent to 
 
 (deceive) (injure) (deceive and injure)] wrongfully and unlaw- 
 fully make and utter to , a certain check, in words and figures 
 
 as follows, to wit: , [and by means thereof, did fraudulently 
 
 obtain from ($ ) ( of the value of about $ ) ] 
 
 [in payment of ], he, the said , then well knowing that 
 
 he did not have and not intending that he should have (any account 
 
 with) (sufficient funds in) the Bank for the payment of said 
 
 check. 
 
 124. Specification: In that was, at , on or about 
 
 the day of , 19 , so (drunk) (disorderly) (drunk and 
 
 disorderly) while in uniform, in the presence and hearing of several 
 persons, as to disgrace the military service. 
 
 125. Specification: In that , having assigned to his 
 
 claim (against the United States) for pay in full for the month of 
 
 , 19 , did, at , on or about the day of , 19 , 
 
 again assign to said claim (or for the use of) against the 
 
 United States for pay in full for the said month of , 19 , 
 
 which second assignment was by him known to be false and fraudu- 
 lent. 
 
 126. Specification: In that , being indebted to in the 
 
 sum of $ for , which amount became due and payable 
 
 (on) (about) (on or about) , did, at , from , 19 , 
 
 to , 19 , without due cause, fail and neglect to pay said debt, 
 
 notwithstanding the fact that heshad been repeatedly requested by the 
 
 said to pay the amount thereof, thereby bringing discredit upon 
 
 the military service. 
 
 127. Specification: In that , having on or about the day 
 
 of 19 become indebted to in the sum of about $ for 
 
 , and having failed without due cause to liquidate said In- 
 debtedness, and having on or about the day of , 19 , 
 
 promised in writing to said that he would on or about the 
 
 day of , 19 , (settle such indebtedness in full) (pay 
 
 on such indebtedness the sum of $ ), did, without due cause, at 
 
 , on or about the day of 19 , to tiie disgrace of the 
 
 military service, fail to keep said promise. 
 
 686 
 
FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 128. Specification: In that did, at , on or about 
 
 the day of , 19 , with intent to deceive .officially 
 
 (report) (state) to the said , that , which (report) 
 
 (statement) was (known by the said to be untrue) (believed 
 
 by the said to be untrue) (made by the said with dis- 
 regard of a knowledge of the facts) (made by the said as 
 
 true when he did not know it to be true) in that . 
 
 129. Specification: In that , with intent to defraud , 
 
 did, at , on or about the day of , 19 , unlaw- 
 fully pretend to that , well knowing that said pretenses 
 
 were false, and by means thereof did fraudulently obtain from the 
 said (the sum of $ ) (merchandise of the value of 
 
 130. Specification: In that , having at -, on or about 
 
 the day of , 19 , voluntarily given his pledge in words 
 
 and figures as follows : , which pledge was accepted by his com- 
 manding officer , did, at , on or about the day 
 
 of , 19 , in disregard of his honor violate said pledge 
 
 by . 
 
 CHARGE: Violation of the 86th Article of War. 
 
 131. Specification: In that , being on guard as a , did, 
 
 at - , on or about the day of , 19 , abandon his 
 
 guard. 
 
 [NOTE.- This form will be used only in case -where absence from guard is 
 coupled with an intent not to return during the tour of duty. Ordinary 
 absence from guard duty will be charged under X W. 61.) 
 
 132. Specification: In that did, at , on or about the 
 
 day of , 19 , wrongfully [kick a public (horse) in 
 
 the belly] ( ). 
 
 133. Specification: In that , a (sentinel) (overseer) ( ), 
 
 being in charge of prisoners, did, at , on or about the 
 
 day of , 19 , wrongfully allow , a prisoner under his 
 
 charge, to (go to) (enter) (go to and enter) an unauthorized place, 
 to wit: . 
 
 134. Specification: In that , a (sentinel) (overseer) (- ), 
 
 being in charge of prisoners, did, at , on or about the 
 
 day of , 19 , wrongfully allow , a prisoner under his 
 
 charge, to (hold unauthorized conversation with ) (loiter) 
 
 (neglect his task by ) (obtain ) ( ). 
 
 135. Specification: In that , a (sentinel) (overseer) ( ), 
 
 being in charge of prisoners and having received a lawful order from 
 
 , to require a prisoner under his charge to , did, at ( 
 
 on or about the day of , 19 , fail to obey the same. 
 
 136. Specification: In that did, at , on or about the 
 
 day of , 19 , without authority, appear -in civilian 
 
 clothing. 
 
 587 
 
APPENDIX 6. 
 
 137. Specification: In that did, at , on or about the 
 
 day of , 19 , wrongfully appear (at) (on) - 
 
 (without his ) (with his not buttoned) (in an unclean 
 
 138. Specification: In that did, at , on or about the 
 
 day of , 19 , wrongfully attempt to (strike) ( ) 
 
 (in) (on) the with . 
 
 [NOTE. For assaults upon officers, warrant officers, and noncommissioned 
 officers amounting to felonies see A. W. 93.] 
 
 139. Specification: In that did, at , on or about the 
 
 day of , 19 , commit an assault upon by wrong- 
 fully (striking) ( ) - (in) (on) the with . 
 
 [NOTE. See note under Specification 138.] 
 
 140. Specification: In that - did, at (on or about the 
 
 day of , 19 ), (between and ), with the 
 
 intention of evading his (duty) ( ) as a (soldier) ( ), 
 
 feign (illness), (disability), (insanity), ( ). 
 
 141. Specification: In that did, at , on or about the 
 
 day of , 19 , unlawfully (attempt to) (threaten to) 
 
 (strike) ( ) , a sentinel in the execution of his duty, [ (in) 
 
 (on) the ] with . 
 
 142. Specification: In that did, at , on or about the 
 
 day of , 19 , wrongfully strike ( ) - , a sen- 
 tinel in the execution of his duty, (in) (on) the with . 
 
 143. Specification: In that , a prisoner lawfully in confine- 
 ment in the post guardhouse, ( ), did, at , on or about 
 
 the day of , 19 , attempt to escape from such confine- 
 ment. 
 
 144. Specification: In that , a prisoner, did, at , on or 
 
 about the day of , 19 , use the following disrespectful 
 
 language to , a sentinel in the execution of his duty : *' ," 
 
 or words to that effect. 
 
 145. Specification: In that , having been restricted to the 
 
 limits of , did, at , on or about the day of , 
 
 19 , break said restriction by going to . 
 
 146. Specification: In that did, at , on or about 
 
 the day of , 19 , unlawfully carry a concealed weapon, 
 
 viz, a . 
 
 147. Specification: In that did, at - , on or about the 
 
 day of , 19 , wrongfully (urinate) (defecate) ( ) 
 
 (on the floor of the squad room) ( ). 
 
 148. Specification: In that did, at , or or about 
 
 the day of , 19 , willfully and unlawfully [(conceal) 
 
 (remove) (mutilate) (obliterate) (destroy)] [attempt to (conceal) 
 (remove) (mutilate) (obliterate) (destroy)] [take and carry away 
 with intent 'to (conceal) (remove) (mutilate) (obliterate) (destroy) 
 (steal)] a public record, to wit: (the descriptive list of ) 
 
 5S8 
 
FORMS FOB CHARGES AND SPECIFICATIONS. 
 
 149. Specification: In that , a prisoner lawfully in confine- 
 ment in the post guard house, ( ), did at , on or about 
 
 the day of , 19 , conspire with and to 
 
 escape from such confinement. (For joint charge see par. 69.) 
 
 150. Specification: In that did, at , on or about 
 
 the day of , 19 , willfully, wrongfully, and unlawfully 
 
 destroy , value about $ , property of the United States. 
 
 151. Specification: In that did, at , on or about 
 
 the - - day of , 19 , through carelessness, discharge a 
 (service rifle) ( ) in his (squad room), (in his tent) ( ). 
 
 152. Specification: In that , having received a lawful order 
 
 from - , a sentinel in the execution of his duty, to , did, 
 
 at , on or about the day of , 19 , (fail to obey) 
 
 (willfully disobey) the same. 
 
 153. Specification: In that was, at , on or about the 
 
 day of - , 19 , (drunk) (disorderly) (drunk and dis- 
 orderly) in (camp) (post) (quarters) ( ). 
 
 154. Specification: In that was, at , on or about the 
 
 - day of , 19 , (drunk) (disorderly) (drunk and dis- 
 orderly) in uniform and did thereby bring discredit upon the military 
 service. 
 
 155. Specification: In that , a sentinel ( ) in charge of 
 
 prisoners, did, at , on or about the day of , 19 , 
 
 drink intoxicating liquor with , a prisoner under his charge. 
 
 156. Specification: In that , a prisoner, was, at , on or 
 
 about the day of , 19 , found drunk. 
 
 157. Specification: In that , having received a lawful order 
 
 from - - to - , the said being in the execution of his 
 
 office, did, at , on or about the day of , 19 , fail 
 
 to obey the same. 
 
 158. Specification: In that did, at , on or about the 
 
 day of , 19 , violate (standing orders) (regulations) of 
 by . 
 
 159. Specification: In that did, at , on or about the 
 
 day of , 19 , wrongfully use , a narcotic drug. 
 
 160. Specification: In that , being indebted to in the 
 
 sum of $ , which amount became due and payable (on) (about) 
 
 , did, at - , on or about the day of , 19 , 
 
 without due cause, fail and neglect to pay said debt, notwithstanding 
 
 the fact that he had been repeatedly requested by the said to 
 
 pay the amount thereof, thereby bringing discredit upon the military 
 service. 
 
 161. Specification: In that , having been directed to report for 
 
 prophylactic treatment at (the post hospital) ( ) did, at , 
 
 on or about the day of , 19, fail and neglect to report as 
 
 directed. 
 
 21358 20 38 
 
 589 
 
APPENDIX 6. 
 
 162. Specification: In that did, at , on or about the 
 
 day of , 19 , with intent to deceive , officially 
 
 (report) (state) to the said , that , which (report) 
 
 (statement) was (known by the said to be untrue) (believed 
 
 by the said to be untrue) (made by the said with disre- 
 gard of a knowledge of the facts) (made by the said as true 
 
 when he did not know it to be true) in that . 
 
 163. Specification: In that (Sergeant) (Corporal) did, at 
 
 on or about the day of , 19, gamble with Pri- 
 
 and , 
 
 Specification: In that did, at , on or about the 
 
 day of , 19 , gamble in quarters, in violation of orders. 
 
 165. Specification: In that did, at , on or about the 
 
 - day of , 19 , while (at a barrack window) ( ) 
 
 willfully and wrongfully expose in an iadecent manner to public view 
 his ( ). 
 
 166. Specification: In that (for and in behalf of one ) 
 
 did, at , on or about the day of , 19 , loan to 
 
 $ , under an agreement whereby he, the said , was 
 
 to receive for the use of said money for (months) (days) 
 
 interest at the rate of per cent per (annum) (month) (the sum 
 
 of $ ), thereby (demanding) (receiving) (demanding and re- 
 ceiving) an usurious rate of interest for said loan. 
 
 167. Specification: In that , while posted as a sentinel, did, 
 
 at , on or about the day of , 19 , loiter on his 
 
 post. 
 
 168. Specification: In that , with intent to defraud, did, at 
 
 , on or about the day of , 19 , unlawfully pretend 
 
 to that , well knowing that said pretenses were false and 
 
 by means thereof did fraudulently obtain from the said (the 
 
 sum of $ ) (merchandise of the value of $ ) ( ). 
 
 169. Specification: In that , while suffering (with) (from) 
 
 , did, at , on or about the day of , 19 , 
 
 refuse to submit to the (dental or medical treatment) (surgical opera- 
 tion) prescribed by , the attending (dental) surgeon for the 
 
 (disease) (injury), the said (treatment) (operation) consisting in 
 
 , (said operation having been certified by the attending surgeon 
 
 as) being necessary (for the removal of a disability that prevents the 
 full performance of military duty) and without risk to his life (and 
 the accused having been advised that such certificate had been made). 
 
 170. Specification: In that did, at , on or about the 
 
 day of , 19 , willfully maim himself in the by 
 
 (shooting himself with ) ( ), thereby unfitting himself for 
 
 the full performance of military service. 
 
 171. Specification: In that did, at , on or about the 
 
 day of , 19 , with Intent to (maim) (disfigure) (maim 
 and disfigure), willfully, unlawfuHy, and feloniously [(cut) (bite) 
 
FORMS FOB CHARGES AND SPECIFICATIONS. 
 
 (slit) the (nose) (ear) (lip)] [(cut out) (disable) the tongue] 
 [(put out) (destroy) the eye] [(cut off) (disable) the (limb) 
 ( , the member)] of by . 
 
 172. Specification: In that did, at , on or about the 
 
 day of , 19 , with intent to (maim) (disfigure) (maim 
 
 and disfigure), willfully, unlawfully, and feloniously, (throw) (pour) 
 
 upon -, (scalding hot water) (vitriol) , a corrosive acid) 
 
 ( a caustic substance). 
 
 173. Specification: In that - , while posted as a sentinel, did, 
 at - , on or about the - day of - , 19 , wrongfully 
 sit down on his post. 
 
 174. Specification: In that did, at , on or about the 
 
 - day of , 19 , while accompanying his organization oil 
 
 (a practice march) (maneuvers) without just cause straggle. 
 
 175. Specification: In that - - did, at , on or about 
 
 the - day of , 19 , procure to commit per- 
 jury, by inducing him, the said , to take an oath before 
 
 a competent (tribunal) (officer) (person) in a (trial by court- 
 martial of ) ( ), a case in which a law of the 
 
 United States authorizes an oath to be administered that [he, the 
 said - , would (testify) (declare) (depose) (certify) truly] 
 [(certain written testimony) a (declaration) (deposition) (certificate) 
 subscribed by him was true] and, willfully, corruptly, and contrary 
 to such oath, to (testify) (declare) (depose) (certify) as follows: 
 
 , which (testimony) (declaration, deposition, etc,) was 
 
 false, was (material) (a material matter) and was known by the 
 said : and the said to be false, 
 
 176. Specification: In that , a prisoner on parole, did, at 
 
 , on or about the day of , 19 , break his parole 
 
 by . 
 
 177. Specification: In that did, at , on or about 
 
 feloniously receive, have, and conceal (describe property as in lar- 
 ceny), of the goods and chattels of (name owner), then lately before 
 feloniously stolen, taken, and carried away; he, the said (accused), 
 then well knowing the said goods and chattels to have been so felo- 
 niously stolen, taken, and carried away. 
 
 178. Specification: In that - - did, at - , on or about the 
 
 day of , 19 , in a claim for (family allowance) (com- 
 pensation) (insurance) [in , a document required by (regula- 
 tions made under) the War Risk Insurance Act, in the making of a 
 claim for (family allowance) (compensation) (insurance), to wit 
 
 ] willfully and unlawfully make a statement that which 
 
 statement was a material fact, and known by the said to be 
 
 false, in that . 
 
 179. Specification: In that did, at , on or about the 
 
 day of , 19 , carnally and unlawfully know a 
 
 female under the age of sixteen years. 
 
 591 
 
APPENDIX 7. 
 
 FORMS FOR SYNOPSES OF CONVICTIONS BY 
 COURT-MARTIAL. 
 
 (For Entry in Service Record.) 
 
 INSTRUCTIONS. 
 
 The forms for recording the synopses of convictions by court-martial 
 as set forth below constitute a general guide for use in entering con- 
 victions on the service record, the synopsis of the record being entered 
 in the following sequence in each case: 
 
 (a) Article of War; (&) synopsis of specification; (e) date of com- 
 mission of offense. 
 
 (See forms for synopses of sentences, Appendix 14.) 
 
 [The figures " /18," at the end of each form, indicate the place to 
 fill in the year. Thus, e. g., for 1921, write " /21."] 
 
 FORMS. 
 
 These forms cover the charges and specifications given in Appen- 
 dix 6. 
 CHARGE: 54 AW. 
 
 1. Fraud, enl. while already in service, /18. 
 
 2. Fraud, enl. after (dishonorable discharge) (conviction of fel- 
 
 ony) ( ), /18. 
 
 8. Fraud, enl. after imprisonment in (jail) (reformatory) (peni- 
 tentiary), /18. 
 
 4. Fraud, enl. while (under 18) (married) ( ), /18. 
 
 CHARGE: 55 AW. 
 
 5. Omitted; refer to officers only. 
 CHARGE: 56 AW. 
 
 6 to 12, inclusive, omitted ; refer to officers only. 
 CHARGE: 57 AW. 
 
 13 and 14 omitted; refer to officers only. 
 CHARGE: 58 AW. 
 
 15. Attempting to desert, /18. 
 
 16. In the (execution of a conspiracy with - ) (presence of 
 
 the enemy) attempting to desert, /18. 
 
 17. Desertion from until (apprehended) (he surrendered 
 
 himself) on , /18. 
 
 18. In the (execution of a conspiracy with ) (presence of 
 
 the enemy) desertion from until (apprehended) (he 
 
 surrendered himself) on , /IB. 
 
 592 
 
APPENDIX 7. 
 
 19. Jointly with others in the execution of a conspiracy (arid in 
 
 the presence of the enemy) deserted from until they 
 
 (were apprehended) (surrendered themselves) on f 
 
 /18. 
 
 CHARGE: 59 AW. 
 
 20. (Advising) (persuading) to desert, 
 
 21. Knowingly assisting to desert, 
 
 CHARGE: 60 AW. 
 
 22. Omitted ; refer to officers only. 
 CHARGE: 61 AW. 
 
 23. Awol., from - to, /IS. 
 
 24. Absent from (retreat) ( ), 718. 
 
 25. Leaving place (of assembly) for (retreat) ( ), 
 
 718. 
 
 CHARGE: 62 AW. 
 
 26. Using (contemptuous) (disrespectful) (contemptuous and dis- 
 
 respectful) words against the of the (United States) 
 
 ( ), /To. 
 
 CHARGE: 63 AW. 
 
 27. Disrespect toward his superior officer, /18. 
 
 CHARGE: 64 AW. 
 
 28. Willfully disobeying a lawful command of his superior officer, 
 
 /18. 
 
 29. Willfully, (drawing) (lifting up) a against his supe- 
 
 rior officer, /18. 
 
 30. Willfully striking his superior officer, /18. 
 
 CHARGE: 65 AW. 
 
 31. Willful disobedience of a lawful order of a NCO, /18. 
 
 32. (Attempting) (threatening) to (strike) (assault) NCO, 
 
 718. 
 
 33. (Insubordinate) (disrespectful) (insubordinate and disre- 
 
 spectful) behavior toward NCO, 718. 
 
 34. Willfully (striking) (assaulting NCO, 718. 
 
 CHARGE: 66 AW. 
 
 35. Attempting to create a mutiny, 718. 
 
 36. Causing a mutiny, 718. 
 
 37. Joining in a mutiny, /18. 
 
 CHARGE: 67 AW. 
 
 38. Failing to give information of an intended mutiny, 718. 
 
 39. With others attempting to break into a jail and release a 
 
 prisoner, 718 
 
 40. Not using his utmost endeavor to suppress a mutiny, 
 
 718. 
 
SYNOPSES OF CONVICTIONS BY COURT-MARTIAL. 
 
 CHARGE: 68 AW. 
 
 41* Being engaged in a (quarrel) (fray) (disorder) and having 
 been ordered into (arrest) (confinement) by (re- 
 fused to obey (drew a upon) (threatened) him, 
 
 /18. 
 
 CHARGE: 69 AW. 
 
 42. (Breach of arrest) (escape from confinement), /18. 
 
 CHARGE: 71 AW. 
 
 43. Refusing to (receive) (keep) a prisoner, while on duty as 
 
 /-IQ 
 
 , ~~" / --O. 
 
 CHARGE: 72 AW. 
 
 44. As commander of the guard failed to report the name of a 
 
 prisoner committed to his charge, /IS. 
 
 CHARGE: 73 AW. 
 
 45. [Without proper authority releasing prisoner] [suffering 
 
 through (design) (neglect) prisoner to escape], /IS. 
 
 CHARGE: 74 AW. 
 
 46. Omitted; refers to officers only. 
 
 CHARGE: 75 AW. 
 
 47. (Abandoning) (delivering up to the enemy) , which (it 
 
 was his duty) (he had been ordered) to defend, /18. 
 
 48. Casting away his (rifle) (ammunition) while on duty before 
 
 the enemy, /18. 
 
 49. Being (present with) (in command of his ) abandoned 
 
 said , and (sought safety in the rear) ( ), while 
 
 engaged with the enemy, A8. 
 
 50. Causing a false alarm in the (camp) (garrison) (quarters) 
 
 ( ), at , while on duty before the enemy, 
 
 /18. 
 
 51. Quitting his (company) (post) ( ), at , to (pil- 
 
 lage) (plunder) (pillage and plunder) while on duty before 
 the enemy, /18. 
 
 52. Running away from his (company) ( ), which was then 
 
 engaged with the enemy, /18. 
 
 53. (Inducing) (seeking to induce) soldiers (and officers) to 
 
 (abandon) (deliver up) to the enemy , which it was 
 
 their duty to defend, - /18. 
 
 54. (Inducing) (seeking to induce) , then with his company 
 
 engaged with the enemy, to (run away from) (abandon) 
 his (post) ( ), /18. 
 
 55. (Inducing) (seeking to induce) , on outpost duty before 
 
 the enemy to (run away from) (abandon) his (post) 
 ( ), AS. 
 
 594 
 
APPENDIX 7. 
 
 CHARGE: 76 AW. 
 
 56. In combination with others of his command compelled the 
 
 commander to (surrender) (abandon) , to the enemy, 
 
 718. 
 
 57. Jointly with others refusing to perform further duty in de- 
 
 fense of , thereby compelling the commander thereof 
 
 to (abandon) (surrender) said (fort) (post) (camp) 
 (guard) ( ), /IS. 
 
 CHARGE: 77 AW. 
 
 58. Giving to a person entitled thereto the wrong (countersign) 
 
 (parole), - /18. 
 
 59. Making known the (countersign) (parole) to a person not en- 
 
 titled thereto, /18. 
 
 CHARGE: 78 AW. 
 
 60. Violating a safeguard, /18. 
 
 CHARGE: 79 AW. 
 
 61. Appropriating to (his own use) ( ), public property 
 
 taken from the enemy, viz, of the value of $ , 
 
 /18. 
 
 62. Neglecting to secure for the service of the United States public 
 
 property taken from the enemy, viz, , of the value 
 
 of $ , /18. 
 
 CHARGE: 80 AW. 
 
 63. (Buying) (selling) < ) (captured) (abandoned) prop- 
 
 erty, viz, , of the value of $ , /18. 
 
 64. Failing to report (captured) (abandoned) property coming 
 
 into his (possession) (custody) (control), viz, , of 
 
 the value of $ , /18. 
 
 65. Failing to turn over (captured) (abandoned) property coming 
 
 into his (possession) (custody) (control), viz, , of 
 
 the value of $ , /18. 
 
 CHARGE: 81 AW. 
 
 66. Informing an enemy patrol of the whereabouts of a United 
 
 States patrol, /18. 
 
 67. Knowingly (harboring) (protecting) (harboring and protect- 
 
 ing) a member of the enemy's forces who was then being 
 sought by a United States patrol, /IS. 
 
 68. (Holding correspondence with) (giving intelligence to) (hold- 
 
 ing correspondence with and giving intelligence to) the 
 enemy, /18. 
 
 69. Furnishing and delivering to members of the eaeiny'a 
 
 army, to the value of $ , /18. 
 
 CHARGE: 82 AW. 
 
 70. Acting as- a spy, /18. 
 
SYNOPSES OF CONVICTIONS BY COURT-MARTIAL. 
 
 CHARGE: 83 AW. 
 
 71. (Through neglect) (willfully) suffering , of the value 
 
 of $ , military property of the United States, to be 
 
 (lost) (spoiled by ) (damaged by ) [wrong- 
 fully disposed of by (sale to - ) ( ) ], /18. 
 
 CHARGE: 84 AW. 
 
 72. [(Through neglect) (willfully)] [(injuring) (losing)] , 
 
 of the value of $ , issued for use in the military 
 
 service of the United States, /18. 
 
 73. (Unlawfully selling to ) (wrongfully disposing of by 
 
 ) , of the value of $ , issued for use in 
 
 the military service of the United States, 718. 
 
 CHARGE: 85 AW. 
 
 74. Found drunk while on duty as , /18. 
 
 CHARGE: 86 AW. 
 
 75. Sleeping on post, /18. 
 
 76. Leaving post before being regularly relieved, /18. 
 
 CHARGE: 87 AW. 
 
 77 and 78 omitted ; refer to officers only. 
 CHARGE: 88 AW. 
 
 79. Doing violence to, by striking and beating, an inhabitant 
 
 bringing (supplies) (provisions) to (camp) (garrison) 
 (quarters), /18. 
 
 80. Acting jointly with (another) (others) interfered with an in- 
 
 habitant bringing (supplies) (provisions) to (camp) (garri- 
 son) (quarters), /18. 
 
 81. Intimidating an inhabitant, bringing (provisions) (supplies) 
 
 ( ) into (camp) (garrison) (quarters), by threaten- 
 ing to kill if he continued to bring (provisions) (sup- 
 plies) ( ) into (camp) (garrison) (quarters) ( ), 
 
 718. 
 
 CHARGE: 89 AW. 
 
 82. Committing a depredation upon (an orchard) ( ) by en- 
 
 tering same without authority and (removing fruit from 
 trees) ( ), /18. 
 
 83. Rioting in the public streets of , by (resisting and fight- 
 
 ing against the peace officers of ) ( ), 
 
 /18. 
 
 84. Willfully destroying a growing crop (of oats) ( ) by 
 
 (permitting the horses of his troop to graze therein) 
 ( ), 718. 
 
 85. Unauthorized (destruction of) ( ) (a building) ( ), 
 
 718. 
 
 86. Omitted ; refers to officers only. 
 CHARGE: 90 AW. 
 
 87. Using a (reproachful) (provoking) (reproachful and provok- 
 
 ing) speech against - (accompanied with a provoking 
 gesture), /IS. 
 
 596 
 
APPENDIX 7. 
 
 CHARGE: 91 AW. 
 
 88 and 89 omitted ; refer to officers only. 
 
 90. Fighting a duel, 
 
 91. Promoting a duel, 
 CHARGE: 92 AW. 
 
 92. Murder, killing , by (shooting him with a rifle) ( ), 
 
 718. 
 
 93. Rape, 718. 
 CHARGE: 93 AW. 
 
 94. Arson, burning a (dwelling house) ( ), /18. 
 
 95. With intent to (do him bodily harm) (commit a felony, viz, 
 
 ) striking ( ) (in) (on) the with 
 
 a , /18. 
 
 96. Burglary, /18. 
 
 97. Embezzlement of , of the value of $ , /18. 
 
 98. Larceny of , of the value of $ , /18. 
 
 99. Manslaughter, /18. 
 
 100. Mayhem, cutting off the (hand) (arm) ( ) of , 
 
 /18. 
 
 101. Perjury, in a (trial by court-martial of ) (deposition 
 
 for use in a trial by court-martial of ) (military in- 
 vestigation) (civil suit) ( -), 718. 
 
 102. Robbery by (force and violence) (putting in fear) of 
 
 of the value of $ (from ), 718. 
 
 CHARGE: 94 AW. 
 
 103. (Making) (causing to be made by ) a (false) (fraudu- 
 
 lent) (false and fraudulent) claim against the (U. S.) 
 
 ( at ) ( ), in the amount of $ , 
 
 for (private property alleged to have been [lost] 
 [destroyed] in the military service) ( ), /18. 
 
 104. (Presenting) (causing to be presented by ) for (ap- 
 
 proval) (payment) (approval and payment) a (false) 
 (fraudulent) (false and fraudulent) claim against the 
 
 (U. S.) ( at ) ( ), in the amount of 
 
 $ , for (services alleged to have been rendered to the 
 U. S. by ) ( ), - 718. 
 
 105. Entering into an (agreement) (conspiracy) (agreement and 
 
 conspiracy) with , to defraud the U. S. by (obtain- 
 ing) (aiding to obtain) the (allowance) (payment) 
 
 (allowance and payment) of a (false) (fraudulent) (false 
 and fraudulent) claim against the U. S., in the amount of 
 $ , for (supplies) ( ) alleged to have been fur- 
 nished to the U. S. by - , 718. 
 
 106. (Making) (using) (making and using) a (false) (fraudu- 
 
 lent) (false and fraudulent) statement for the purpose of 
 (obtaining) (aiding others to obtain) the (approval) (al- 
 
 597 
 
SYNOPSES OF CONVICTIONS BY COURT-MAKTIAL. 
 
 lowance) (payment) (approval, allowance, and payment) 
 
 of a claim against the (U. S.) ( at ) ( ), 
 
 718. 
 
 107. (Advising) (procuring) (ad vising and procuring) the making 
 
 of a (false) (fraudulent) (false and fraudulent) state- 
 ment for the purpose of (obtaining) (aiding others to ob- 
 tain) the (approval) (allowance) (payment) (approval, 
 allowance, and payment) of a claim against the (D. S.) 
 ( at ) ( ), /18. . 
 
 108. (Making) (advising the making of) (procuring the making 
 
 of) (advising and procuring the making of) a false oath 
 
 by that , for the purpose of (obtaining) 
 
 (aiding others to obtain) the (approval) (allowance) (pay- 
 ment) (approval, allowance, and payment) of a claim 
 against the (U. S.) ( at ) ( ), /18. 
 
 109. (Forging) (counterfeiting) (forging and counterfeiting) (the 
 
 signature of upon a ) (a ) for the pur- 
 pose of (obtaining) (aiding others to obtain) the (ap- 
 proval) (allowance) (payment) (approval, allowance, and 
 payment) of a claim against the (U. S.) ( at ) 
 
 ( ), /lo. 
 
 110. (Advising) (procuring) (advising and procuring) the (forg- 
 
 ing) (counterfeiting) (forging and counterfeiting) by 
 
 , of (the signature of upon a ) (a 
 
 ) for the purpose of (obtaining) (aiding others to 
 obtain) the (approval) (allowance) (payment) (approval, 
 allowance, and payment) of a claim against the (U. S.) 
 ( at ) ( ), /IS. 
 
 111. (Using) (advising the use of) (procuring the use of) a 
 
 (forged) (counterfeited) (forged and counterfeited) 
 
 for the purpose of (obtaining) (aiding others to obtain) 
 the (approval) (allowance) (payment) (approval, allow- 
 ance, and payment) of a claim against the (U. S.) ( 
 at ) ( ), /18. 
 
 112. Having (charge) (possession) (custody) (control) of 
 
 (money) ( ) (furnished) (intended) (furnished and 
 
 intended) for the military service, knowingly (delivered) 
 
 (caused to be delivered) to , (an) (a) (amount) 
 
 (number) (quantity) less than the (amount) (number) 
 (quantity) for which he received a (certificate) (receipt), 
 at , /18. 
 
 113. (Making) (delivering) (making and delivering) a paper 
 
 certifying the receipt of property of the U. S. (furnished) 
 (intended) (furnished and intended) for the military serv- 
 ice, without having full knowledge of the truth of the 
 statements therein contained and with the intent to defraud 
 the U. S., 718. 
 
APPENDIX 7. 
 
 114. (Stealing) (embezzling) (misappropriating) (applying to 
 
 his own use) (applying to his own benefit) (applying to his 
 own use and benefit) (wrongfully selling) (knowingly and 
 without proper authority selling) (wrongfully and know- 
 ingly selling) , of the value of about $ , 
 
 property of the U. S., /18. 
 
 115. Wrongfully and knowingly (purchasing) (receiving in 
 
 pledge) from (in) (employed in) the mili- 
 tary service for an (obligation) (indebtedness) , of 
 
 the value of about $ , property of the U. S., 
 
 718. 
 
 CHARGE: 95 AW. 
 
 116 to 124 omitted ; refer to officers only. 
 
 CHARGE: 96 AW. 
 
 125. Abandoning his guard, /18. 
 
 126. Kicking a public (horse) ( ) (in the belly) ( ), 
 
 /IS. 
 
 127. As (sentinel) (overseer) ( ), in charge of prisoners, 
 
 allowing a prisoner t^ (go to) (enter) (go to and enter) 
 an unauthorized place, /18. 
 
 128. As (sentinel) (overseer) ( ) in charge of prisoners, 
 
 allowing a prisoner to (hold unauthorized conversation 
 with ) (loiter) (neglect his task by ) (ob- 
 tain ) ( ), /18. 
 
 129. As (sentinel) (overseer) ( ) being in charge of prison- 
 
 ers, and having received a lawful order from - , to 
 
 require a prisoner to , failed to obey the same, 
 
 718. 
 
 130. Appearing in civilian clothing without authority, 718. 
 
 131. Appearing (at) (on) (without his ) <with his 
 
 - not buttoned) (in an unclean ) ( ), 
 
 718. 
 
 132. Attempting to (strike) ( ) (in) (on) the 
 
 with , 718. 
 
 133. Striking ( ) (in) (on) the with . 
 
 718. 
 
 134. With intent to evade (duty) ( ) feigning (illness) 
 
 (disability) (insanity) ( ), 7l& 
 
 135. (Attempting) (threatening) to (strike) ( ) - - a 
 
 sentinel (in) (on) the with , /18. 
 
 136. (Striking) ( ) a sentinel (in) (on) the 
 
 with , 718. 
 
 137. (Escaping) (attempting to escape) from confinement, 
 
 718. 
 
 138. As a prisoner, using disrespectful language to a sentinel, 
 
 . 718. 
 
 139. Having been restricted to the limits of , did break 
 
 same, 718- 
 
 599 
 
SYNOPSES OF CONVICTIONS BY COURT-MARTIAL. 
 
 140. Unlawfully carrying a concealed weapon, /IS. 
 
 141. (Urinating) (defecating) ( ) (on the floor of the squad 
 
 room) , /18. 
 
 142. Willfully did, [(conceal) (remove) (mutilate) (obliterate) 
 
 (destroy)] [attempt to (conceal) (remove) (mutilate) ob- 
 literate) (destroy)] [take and carry away with intent to 
 (conceal) (remove) (mutilate) (obliterate) (destroy) 
 (steal)] a public record, viz, (the descriptive list of 
 ) ( ), /is. 
 
 143. As a prisoner conspiring with and to escape 
 
 from confinement, /18. 
 
 144. Willfully destroying - , property of the U. S., value 
 
 about $ , 718. 
 
 145. Through carelessness, discharging a (service rifle) ( ) 
 
 in his (squad room) (tent) ( ), /18. 
 
 146. (Failing to obey) (willfully disobeying) orders from a senti- 
 
 nel, 718. 
 
 147. (Drunk) (disorderly) (drunk and disorderly) in (camp) 
 
 (post) (quarters) ( ), 718. 
 
 148. (Drunk) (disorderly) (drunk and disorderly) in uniform, 
 
 718. 
 
 149. As a sentinel, drinking intoxicating liquor with a prisoner 
 
 under his charge, 718. 
 
 150. While a prisoner, was found drunk, /IS. 
 
 151. Failing to obey a lawful order, /IS. 
 
 152. Violating (standing orders) (regulations), /IS. 
 
 153. Wrongfully using a narcotic drug, /18. 
 
 154. Failing to pay a just debt, /18. 
 
 155. Failing to report for prophylactic treatment, /IS. 
 
 156. Making a false official (report) (statement), /IS. 
 
 157. False swearing, /IS. 
 
 158. Forging (in its entirety) [by (altering ) (erasing 
 
 ) (adding )] a certain (check) ( ), 
 
 /18. 
 
 159. As (sergeant) (corporal) gambling with privates, /IS. 
 
 160. Gambling in quarters in violation of orders, /IS. 
 
 161. Indecent exposure, /18. 
 
 162. (On behalf of another) loaning $ for (months) 
 
 (days) per cent per (annum) (month), an usurious rate 
 of interest, /18. 
 
 163. While a sentinel, loitered on his post, /IS. 
 
 164. Obtaining by false pretenses (from ) (the sum) (mer- 
 
 chandise of the value) of $ ( ), /IS. 
 
 165. Refusing to submit to (medical treatment) (dental treat- 
 
 ment) (a surgical operation), /18. 
 
 166. Willfully maiming himself (by shooting himself with ) 
 
 ( ) /1. 8. 
 
 COO 
 
APPENDIX 7. 
 
 167. While a sentinel, sitting down on his post, - /18. 
 
 168. Sodomy committed upon the person of one - , - /18. 
 
 169. Straggling while (on practice march) (at maneuvers), 
 
 170. Knowingly procuring - to commit perjury, by inducing 
 
 him knowingly to (give false testimony) (make a false 
 [declaration] [certificate] [deposition]) as to a material 
 matter in a trial (by court-martial) ( - ), - /18. 
 
 171. With intent to defraud, knowingly uttering to - a forged 
 
 (written instrument) ( - ), - /18. 
 
 172. Breach of parole, while a prisoner, - /18. 
 
 173. With intent to (maim) (disfigure) - willfully [(cut- 
 
 ting) (biting) ( - ) the (nose) (ear) ( - ) of 
 - ] [(throwing) (pouring) corrosive acid upon] the 
 said - , - /18. 
 
 174. Knowingly receiving stolen goods of the value of $ - , 
 
 601 
 
APPENDIX 8. 
 SUGGESTIONS FOR TRIAL JUDGE ADVOCATES. 
 
 The trial judge advocate of a general or special court-martial shall 
 prosecute in the name of the United States, and shall, under the direc- 
 tion of the court, prepare the record of its proceedings. (A. W. 17.) 
 
 The following notes, indicating more or less in proper sequence cer- 
 tain action usually proper to be taken by a trial judge advocate, may 
 be found useful: 
 
 1. UPON RECEIPT BY AN OFFICER OF AN ORDER APPOINTING 
 HIM TRIAL JUDGE ADVOCATE OF A COURT-MARTIAL. 
 
 1. Examine the order and any amendatory orders carefully and 
 take appropriate action to cause the correction of any substantial 
 irregularity therein. 
 
 2. Examine and study such portions of the Manual for Courts- 
 Martial, Digest of Opinions of the Judge Advocates General, Army 
 Regulations, and War Department or other orders affecting courts- 
 martial as may appear desirable. He should, in this connection, give 
 particular attention to the duties of trial judge advocates, to the pro- 
 cedure of courts-martial, and to the matter of evidence. 
 
 2. UPON RECEIPT OF CHARGES IN A CASE. 
 
 1. Prepare an envelope to contain the papers pertaining thereto. 
 
 2. Examine the charges and all papers received to see that none 
 appear to be missing ; that the charges appear to be correctly drawn ; 
 that the summaries of the statements of the witnesses on the pre- 
 liminary investigation and the other accompanying documents men- 
 tioned in paragraph 77 (ft), M. C. M., are all in order; that the order 
 of reference for trial is indorsed in the prescribed form on one 
 original counterpart of the charges ; that the evidence of previous con- 
 victions, if any, is complete and correct, especially as to dates, authen- 
 tication, proper signatures, etc. 
 
 3. Make (taking care to initial each) any authorized necessary 
 changes in charges; and take proper action in connection with de- 
 fects, if any, found in evidence of previous convictions. 
 
 4. Report to the appointing authority necessary or desirable changes 
 which the trial judge advocate is not authorized to make. 
 
 5. Serve the accused with a copy of the charges and of the other 
 papers required by paragraph 77 (&), M. C. M., and sign certificate 
 of such service in the prescribed form on the same counterpart of the 
 charges upon which the order of reference for trial is indorsed (which 
 is the counterpart to be retained by the trial judge advocate during 
 the trial and returned to the convening authority with the record of 
 trial). 
 
 602 
 
SUGGESTIONS FOR TRIAL JUDGE ADVOCATES. 
 
 6. Consult the defense counsel of the court and ascertain from him 
 whether the accused desires individual counsel, and, if asked to do so, 
 assist in arranging for such individual counsel as the accused may 
 desire. 
 
 7. Prepare case for trial, investigating it thoroughly, and determin- 
 ing upon plan of prosecution. 
 
 8. Arrange with president date and time of meeting of court 
 
 9. Arrange for court-martial room, see that it is in order, provided 
 with necessary tables, chairs, stationery, and room to be heated, if 
 necessary. 
 
 10. Notify all members of date and time of meeting and arrange 
 for presence of other necessary persons, including the defense coun- 
 sel, the accused, and his individual counsel, reporter, interpreter, if 
 required, and witnesses. 
 
 11. Arrange to have at trial such books, etc., as may be required. 
 The following are frequently found necessary or useful : 
 
 Manual for Courts-Martial. 
 
 Digest of -Opinions, Judge Advocates General. 
 
 Standard Text on Military Law. 
 
 Ordnance Price List. 
 
 Clothing Price List. 
 
 12. Determine maximum punishment, if any, imposable upon con- 
 viction of each of the several offenses charged, and be prepared to 
 advise the court thereof. 
 
 3. UPON THE ASSEMBLING OF THE COURT. 
 
 1. Note officers present and absent, members of the court including 
 the law member, trial judge advocate and assistants, defense counsel 
 and assistants. 
 
 2. When the court appears ready to proceed, announce the readiness 
 
 of the prosecution to proceed with the trial of , and the 
 
 presence of the defense counsel, and inquire of the defense counsel 
 and the accused whether the accused desires to introduce any indi- 
 vidual counsel (to be ordinarily introduced, if there be individual 
 counsel, by the defense counsel). 
 
 3. Swear reporter, if any. 
 
 4. Before a general court-martial, or a special court-martial where 
 the evidence is to be recorded, ask accused if he desires a copy of 
 the record of his trial, and see that his answer appears in the record. 
 If he does not, do not have carbon copy of the record of trial of a 
 special court-martial made ; if he wishes copy, direct reporter to pre- 
 pare one. (Pars. 359 and 366 (b), M. C. M.) ; and direct reporter to 
 prepare a carbon copy of record of general court-martial trial in any 
 case (par. 355a, M. C. M.). 
 
 5. Read aloud to accused the order appointing the court and each 
 modifying order. 
 
 603 
 
APPENDIX 8. 
 
 6. If it is expected to call any member of the court as a witness, 
 or if any member is known to be an accuser, announce that fact 
 and request the court to excuse such member. 
 
 7. Request that any member of the court who has formed an 
 opinion concerning the case or any of the material facts, or who for 
 any other reason thinks himself disqualified, or is aware of any facts 
 which he believes might cause either party to desire to challenge 
 him, to so announce (see par. 126, M. C. M.) in order that he may 
 be excused or challenged. In a proper case, request the court to 
 excuse any member upon such announcement. 
 
 8. Exercise the right of challenge in a proper case. (See par. 120, 
 M. C. M.) 
 
 9. After concluding challenges for the prosecution, ask accused if 
 he objects to being tried by any member present named in the order 
 convening the court and in the modifying orders, if any. 
 
 10. After action on a challenge by the accused, if any is made, has 
 been had, again ask the accused if he objects, as above. Continue this 
 until accused has no further objection. 
 
 11. Ask the accused (if the accused has not exercised his right of 
 peremptory challenge) whether he desires to challenge any member 
 of the court present peremptorily. 
 
 12. Swear members of the court. 
 
 13. Be sworn by the president. 
 
 14. Read charges and specifications, including the signature and 
 the oath thereto, and the order of reference for trial, aloud slowly to 
 the accused, and, having done so, ask him how he pleads to the first 
 specification, first charge if necessary, rereading to him the specifica- 
 tion ; then how he pleads to the second specification, first charge, etc. ; 
 then to the first charge, etc. 
 
 15. If there be any special pleas, e. g., to the jurisdiction of the 
 court, of a pardon, of the statute of limitations, or the like, they 
 will properly be interposed at this point. 
 
 16. If it appears on the face of the record that the accused might 
 successfully plead the statute of limitations, the law member of a 
 general court-martial, if present, or otherwise the president, or the 
 president of a special court-martial, will at this point advise the 
 accused of his legal right to plead the statute of limitations, and 
 that, if he does not plead it, it will be considered as waived. (See 
 par. 149 (ft), M. C. M., and form Appendix 9.) 
 
 17. Read to the court from the chapter on punitive articles, M. C. M., 
 the paragraph or paragraphs, or parts of paragraphs, that set out the 
 gist of each offense charged, stating for the record which paragraphs, 
 or parts of paragraphs, are read. 
 
 18. If there be a plea of guilty, the law member, or president, as 
 the case may be, makes to accused the required explanations and 
 asks him the required questions. (See par. 154 (d) t M. 0. M., and 
 form Appendix 9.) 
 
 604 
 
SUGGESTIONS FOR TRIAL JUDGE ADVOCATES. 
 
 In case accused lets a plea of guilty stand, then warn the accused 
 in open court of his right to introduce evidence under such plea in 
 explanation of his offense. (Par. 96, M. C. M.) 
 
 19. If desired, make at this point a brief opening statement, out- 
 lining the case to the court. (See par. 197, M. C. M.) 
 
 20. Introduce and swear witnesses for the prosecution. In some 
 cases it may be desirable to acquaint the court with the particular 
 specification with which the testimony of a particular witness is con- 
 nected. 
 
 21. In all cases attempt to establish by evidence each of the sev- 
 eral specifications, except such elements as may be the subjects of 
 judicial notice or as are formally admitted. 
 
 22. Examine each witness, having careful regard for the rules of 
 evidence. 
 
 By your first questions carefully identify the accused by his: 
 
 (1) Name, 
 
 (2) Army serial number, if an enlisted man, and 
 
 (3) Grade and organization; and also 
 
 (4) That the accused person present in court is the very same 
 
 person about whom the witness is testifying 
 
 23. Offer opportunity to cross-examine. 
 2,4. Reexamine, if desirable. 
 
 25. Ask court if there are any questions by the court. 
 
 26. If any witness is recalled, remind him that he is still under oath. 
 
 27. When the prosecution has nothing further to offer for the time, 
 announce that the prosecution rests. 
 
 28. Ask defense counsel, or other counsel for the accused, whether 
 he desires to make an opening statement. 
 
 29. Swear witnesses for defense, in succev^sion, and cross-examine 
 so far as desirable. 
 
 30. If the accused testifies in his own b//half, make sure that he 
 does so at his own request, and that the record so shows. 
 
 31. If the accused does not request to b* sworn as a witness, he 
 may make an unsworn statement to the co*M*t. Make sure that the 
 record is clear as to what the accused does ).w this respect. 
 
 32. If the accused does not testify or make any statement in his 
 own behalf, invite the attention of the court to the explanation re- 
 quired to be made to the accused under pai^graph 215, M. C. M., and 
 make sure that the explanation is properly made; and that it, to- 
 gether with the answers of the accused thereto, As noted in the record. 
 (For form see Appendix 9.) 
 
 33. After defense rests, swear and examine witnesses, if any, in 
 rebuttal for prosecution. 
 
 34. Ask the court whether any witnesses are> to be called for the 
 court. 
 
 35. Offer accused opportunity to make a statement and argwmont 
 21358 20 39 
 
 05 
 
APPENDIX 8. 
 
 36. Make sure, and see that it appears in the record when the time 
 comes, that the accused has no further evidence to offer, testimony 
 to give, or statement or argument to make. 
 
 37. Make closing statement or argument. 
 
 4. ADJOURNMENT BTTHING TEIAL. 
 
 * 
 
 1. Note time of adjournment (hour and date). 
 
 2. Arrange, if practicable, to have completed record of proceedings 
 to date ready before next assembling of court. 
 
 3. Subscribe the record of proceedings for the day. 
 
 5. FINDINGS. 
 
 1. After both prosecution and defense have concluded the court 
 closes for findings. 
 
 2. After making its findings the court is reopened, and in case of 
 acquittal the president announces the acquittal in open court. 
 
 Otherwise, the court will ask for the evidence of previous convic- 
 tions, if any, in which case the trial judge advocate will read aloud 
 duly authenticated evidence of any previous convictions referred to 
 the court by the appointing authority, or (if such be the fact) state 
 that there is no such evidence to be presented. 
 
 3. Invite the attention of the court to any apparent irregularity 
 in the evidence of previous convictions. 
 
 4. In case such evidence of previous convictions is offered, ask the 
 accused whether the evidence of such previous convictions Is correct 
 and whether he has any statement to make in explanation or exten- 
 uation thereof or in relation thereto. 
 
 5. Read aloud the statement of service of the accused as shown on 
 the charge sheet, and ask the accused whether the same is correct 
 and whether he has any corrections to state or any statement to 
 make in relation thereto. 
 
 6. SENTENCE. 
 
 1. The court will then close to determine upon and award sentence 
 (except in case of acquittal). 
 
 2. After awarding the sentence the court is opened and the president 
 announces the findings and sentence in open court (except in those 
 rare cases where the court has ordered, under paragraph 332a, M. G. 
 M., that the findings and sentence should not be announced, In which 
 case the president announces that fact). 
 
 3. Invite the attention of the court to any apparent irregularity in 
 the findings or sentence. 
 
 600 
 
SUGGESTIONS FOE TRIAL, JUDGE ADVOCATES. 
 7. ADJOURNMENT AT CLOSE OF TRIAL. 
 
 1. After acquittal or sentence has been announced the court either 
 proceeds to other business or adjourns. 
 
 2. Note time (hour and date) of proceeding to other business or 
 of adjournment. 
 
 3. Notify commanding officer in writing, direct, of result of trial. 
 (See Par. 332a, M. C. M.) 
 
 8. AFTER TRIAL. 
 
 1. Complete vouchers for civilian witnesses and deliver same if 
 practicable before the witnesses leave. 
 
 2. In those rare cases where the court has not announced the sen- 
 tence, but has ordered that it be not announced, under paragraph 
 332a, M. C. M., take proper measures to insure the security of the 
 findings and sentence, and that they are not disclosed to any but the 
 proper authority. 
 
 3. When record is received back from reporter: 
 
 (a) Examine carefully to see that it is in proper form, com- 
 plete, and correct as to both form and substance. 
 
 (&) Make proper notation on index sheet as to copy of record. 
 Deliver copy (if any) to accused personally, and get his receipt 
 (or make affidavit of delivery) and attach same to record. 
 
 (c) See that copies of evidence of previous convictions, if any, 
 are correct, certify same, and return originals to organizations. 
 
 (d) If not so attached, attach index sheet and all exhibits. 
 
 {e) Attach charges and all other papers received from the con- 
 vening authority, as required by paragraphs 79 and 357 (b) (or 
 358), M. C. M. 
 
 (/) See that record is securely bound. 
 
 4. See that findings and sentence are properly transcribed. (In 
 those rare cases where under paragraph 332a, M. C. M., the findings 
 and sentence have not been announced in open court, enter findings 
 and sentence, and if so entered in typewriting add proper certificate.) 
 (See par, 357 (b), item 55, M. O. M.) 
 
 5. Authenticate record. 
 
 6. Have president (or in his absence a member) authenticate 
 record. 
 
 7. Certify original voucher and send it to reporter or to a near by 
 disbursing finance officer, and inclose copy with record of trial. 
 
 8. Verify completeness and correctness of record by making sure 
 that, so far as necessary in the particular case, each requirement 
 stated in Chapter XV, Section I, paragraph 357(&), (or 358) M. C. M., 
 has been complied with. 
 
 9. By separate letter of transmittal, placed on the front of (and 
 bound with) the record of trial, forward charges with record of trial, 
 with original charge sheet and all other papers received with the 
 
 GOT 
 
APPENDIX 8. 
 
 case, to the appointing authority ; and also, if the trial was by general 
 court-martial, the carbon copy of the record, if not desired or accepted 
 by accused. 
 
 9. WEEKLY REPORT. 
 
 Each Saturday, report through the president of the court and the 
 commanding officer all charges, if any, which have been on hand more 
 than two weeks, and which have not been returned to the appointing 
 authority, showing date of receipt of each and reasons for delay in 
 trial. 
 
 10. RECORD WHICH MAY BE KEPT. 
 
 It is suggested that when deemed desirable at least the following 
 record be kept by the trial judge advocate in each case. This record 
 may be conveniently kept on an envelope to be used as a container 
 for the charges and various papers: 
 
 Date of receipt by him of charges or other papers. 
 Date of service of charges and other papers on accused. 
 Date of preliminary consultation with defense counsel. 
 How accused intends to plead, if stated by defense counsel. 
 Individual counsel for accused: 
 Desired? If so, name? 
 
 If so, date on which commanding officer was in- 
 formed. 
 Date on which trial judge advocate was informed of 
 
 appointment of individual counsel. 
 
 Result of examination in preparing for trial, and dates and other 
 necessary facts pertaining to each other incident connected with the 
 case, such as mailing interrogatories, subpoenaing witnesses, etc. 
 Date of trial. 
 
 Date and hour commanding officer was notified of result of trial. 
 (See par. 332a, M. C. M.) 
 
 Date and hour record received back from reporter. 
 Date and hour record forwarded to appointing authority. 
 Date of return to commanding officer of evidence of previous con- 
 victions, if any, to be so returned. 
 
APPENDIX 9. 
 FORMS FOR USE OF PRESIDENT OR LAW MEMBER. 
 
 FORM I. 
 FORM OF RULING IN OPEN COURT. 
 
 1. Ruling by president of special court-martial or by president of 
 general court-martial in absence of law member, on any question aris- 
 inff during the trial, except on (1) a challenge, (2) the findings of the 
 court, and (3) the sentence. 
 
 The ruling may be substantially in this form: 
 
 It is the opinion of the president that (stating his opinion) 
 and such will be the ruling of the court unless some member 
 objects. Are there any objections? (Pausing for objections.) 
 (If there are no objections, add:) 
 
 " No member objecting, the ruling of the court is that the 
 objection (is or is not sustained) and that the question (will 
 or will not) be answered" (or whatever the ruling may be). 
 
 If any member objects, the court will close to consider and 
 vote on the question. (A. W. 31, and par. 89, M. C. If.). 
 
 2. Ruling by law member of a general court-martial. (Whenever 
 present, the law member of a yeneral court-martial rules in open 
 court on all questions arising during the trial, accept on (1) a chal- 
 lenge, (2) the findings of the court, and (3) the sentence.) 
 
 It frs the opinion of the law member that (stating his opinion). 
 It is therefore recommended that the objection be (sustained 
 or 7ioi sustained) and that the question (be or not be) an- 
 swered. (Addressing the president.) 
 
 (The record will slioio that the president thereupon announced the 
 opinion of the law member as the ruling of the court. Such announce- 
 ment may be substantially in this form:) 
 
 Under the thirty-first article of war the recommendation of 
 the law member is the ruling of the court. Accordingly the 
 objection is (sustained or not sustained) and the question will 
 (be or not be) answered. 
 
 3. (If the ruling by the laic member be upon any question other than 
 the admissibility of evidence, so that under the provisions of A. W. 
 31, and of paragraphs 89 and 89a, M. C. If., it is subject to objection 
 by a member of the court, the president will announce the ruling in 
 the folloiving form:) 
 
 Under the thirty-first article of war the opinion and recom- 
 mendation of the law member is made the ruling of the court 
 and will stand as such, unless any member object thereto. Are 
 there any objections? 
 
APPENDIX 9. 
 
 (// no member objects the president will announce:) 
 
 There being no objection the recommendation of the law mem- 
 ber is, under the thirty-first article of war, the ruling of the 
 court, and the objection is (sustained or not sustained) and the 
 question will (be or not be) answered (or whatever the ruling 
 may be). 
 
 If, however, in such a case, any member objects to the ruling, the 
 court will be closed and proceed to consider and vote upon the ques- 
 tion. (See A. W. 81; and par. 89a, M. C. M.) 
 
 FORM II. 
 
 EXPLANATION OF THE RIGHT OF ACCUSED TO PLEAD THE 
 STATUTE OF LIMITATIONS. (See Par. 149 (h), M. C. M.) 
 
 (To be made by the president of a special court-martial, or by the 
 president of a general court-martial in, the absence of the law member, 
 or by the law member of a general court-martial whenever present.) 
 
 (Private Doe), it appears on the face of these charges that 
 the offenses with which you are charged (or, the offenses alleged 
 in specification - under charge - , as the case may 
 be) were committed more than (two years or three years) 
 ago. It, therefore, appears that if you wish to do so you are 
 legally entitled to plead what is known as the statute of 
 limitations, that is, that under the thirty-ninth article of war 
 you are not now liable to be tried or punished therefor, because 
 of the time that has gone by. If you take advantage of your 
 rights under the thirty-ninth article of war by pleading it at 
 this time you can not be tried for such offenses, unless the 
 prosecution can show some legal justification for the delay in 
 bringing you to trial; but you do not have to take advantage 
 of this statutory time limit unless you desire to do so. But, 
 if you do not do so, and do not raise this objection that is, 
 unless you plead the statute of limitations, as it is called, or 
 raise this objection to being tried on account of the delay 
 in bringing you to trial this court will proceed to try you, 
 and if you should be found guilty will have power to punish 
 you for such offenses, regardless of how long ago the offenses 
 were committed. Do you understand all I have said to you? 
 
 Q. Do you understand what I mean? That if you do not 
 take advantage of this right you will lose it? 
 
 Q. Knowing your rights, do you not want to object to this 
 trial proceeding because of the length of time that has gone by 
 since the commission of the acts charged against you ; that 
 Is, do you not desire to plead the statute of limitations? 
 
 610 
 
FORMS FOR USE OF PRESIDENT OR LAW MEMBER. 
 
 FOEM III. 
 EXPLANATION TO THE ACCUSED OF PLEA OF GUILTY. 
 
 (To be made by a summary court (see par. 351 (d), M. C. M.), by 
 the president of a special court-martial, or by the president of a gen- 
 eral court-martial in the absence of the law member, or by the law 
 member of a general court-martial whenever present. (See par. 15% 
 (d), M. C. M.) 
 
 Such explanations and questions may be in substantially the fol- 
 lowing form, varied to suit the particular charges and specifications; 
 but the lain member or president will not confine himself to a stereo- 
 typed statement in this form, but will in all cases elaborate it suffi- 
 ciently io assure himself (as well as to make it appear in the record) 
 that the accused actually understands all the essential elements of 
 each offense to which he has offered a plea of guilty and understands 
 what the specifications allege, and also clearly understands the maxi- 
 mum punishment that may be adjudged thereon, and actually com- 
 prehends that by pleading guilty he admits having committed all of 
 the various elements of the crimes or offenses charged, and under- 
 stands that he may, upon a plea of guilty, actually be punished as 
 stated. The explanation should include at least substantially what 
 follows: 
 
 THE LAW MEMBER (or the president, in the absence of the law 
 member) : 
 
 (Private Doe), it is my duty to tell you that in pleading 
 guilty to (Specification or Charge , insert the num- 
 ber of the specification or of the charge, as the case may be) 
 you are admitting that you are actually guilty of all of the 
 things that are charged against you in that (Specification or 
 Charge) ; that is, that you actually committed all the elements 
 of the offense charged. Those elements or parts of the of- 
 fense consist of certain acts committed with a certain intent. 
 The elemental acts charged and which you admit by pleading 
 guilty are (here read over the specification or specifications to 
 which the plea of guilty is offered, phrase by phrase, each 
 phrase being an elemental fact, if the specification is properly 
 drawn, and explain them carefully in simple language, making 
 sure that the accused actually understands them. Then con- 
 tinue:) As to the intent with which the acts were committed, 
 you admit by your plea of guilty that you knowingly did these 
 things ; that is, you knowingly committed those acts as charged 
 and of which you plead guilty, and that you were conscious and 
 knew what yon were doing and that you intentionally com- 
 mitted those acts; that is, that you had the intention to com- 
 mit the offense of (desertion, larceny, burglary, etc.), with 
 which you stand charged here; that no one forced you to do it, 
 or any part of it, but that you did those acts all of your own 
 
 611 
 
APPENDIX 9. 
 
 free will, not under any compulsion nor misunderstanding of the 
 facts or innocently, but with the intention ot committing this 
 (crime or offense). (If desertion, add) : and you are further 
 informed that the word " desert " includes the charge that, 
 either at the time you left or at some time during your ab- 
 sence, you had the intention not to return to your proper sta- 
 tion, or else that you left for the purpose of avoiding hazardous 
 duty or shirking important service, as stated in the specifica- 
 tions to which you are pleading guilty; and you are further 
 informed that the maximum penalty which the court may im- 
 pose upon you under your pleas of guilty is (be sure to state 
 all of the elements of the maximum punishment which may be 
 awarded, including, if imposable, dishonorable discharge, for- 
 feiture or detention of pay and allowances, as well as confine- 
 ment or other punishment). (In a proper case, add:) If evi- 
 dence is presented to the court, which it can properly consider, 
 of five or more previous convictions against you, you may, in 
 addition, be dishonorably discharged from the service and 
 
 months' confinement at hard labor may be adjudged 
 
 against you. Do you fully understand all that I have said to 
 you? 
 
 A. 
 
 Q. Do you also fully understand that by pleading guilty to 
 
 Specification (or Charge , as the case may be), you 
 
 admit having committed all of the elements of the crime or 
 offense charged, as I have explained them to you? 
 
 A. . 
 
 Q. Do you also understand fully that upon your plea of guilty 
 you may be punished as I have stated? 
 
 A. . 
 
 Q. You may either let your pleas of guilty stand, or you may 
 now, if you wish, change them or any of them to " not guilty." 
 If you change them to " not guilty," then the prosecution will 
 have to present the necessary evidence to prove you guilty 
 before the court can find you guilty or punish you. 
 
 Now, knowing all this do you still want your pleas of guilty 
 to stand, or do you want to change them or any of them to 
 " not guilty " ? 
 
 FORM IV. 
 EXPLANATION TO THE ACCUSED OF HIS EIGHTS AS A WITNESS. 
 
 (To be made by a summary court, or by the president of a special 
 court-martial, or by the president of a general court-martial in the 
 absence of the law member, or by the law member of a general court- 
 martial whenever present; see par. 215, M. C. M.). 
 
 (Private Doe), it is my duty to tell you that you have the 
 legal right now to do any one of several things, just as you 
 
 612 
 
FORMS FOR USE OF PRESIDENT OR LAW MEMBER. 
 
 choose. First, if you want to do so, you may be sworn as a 
 witness and testify under oath in this case like any other 
 witness ; or second, if you do not want to be sworn as a witness 
 you may, without being sworn, say anything about the case to 
 the court which you desire that is, make what is called an 
 unsworn statement or you may, if you wish, file a written 
 statement with the court ; or third, you may, if you wish, keep 
 silent and say nothing at all. I will explain these rights to 
 you in order: 
 
 First. If you desire to be sworn as a witness and testify in 
 your own behalf, you may do so, but you are not required to 
 do so, and you can not be sworn unless you ask it. If you are 
 sworn as a witness in your own behalf that means that you take 
 the witness stand like any other witness and promise, under 
 oath, that you will tell the truth, the whole truth, and nothing 
 but the truth, about this case. If you do that, whatever you say 
 will be considered and weighed as evidence by the court just 
 like the testimony of any other witness, and you can be cross- 
 examined like any other witness that is, the trial judge ad- 
 vocate 1 and any member of the court can question you to find 
 out whether or not you are telling the truth and what weight 
 should be given to your testimony. Their questions will not be 
 confined to just that part of your denial or explanation which 
 you may give while testifying yourself under the guidance of 
 your counsel, but they can question you about the whole subject 
 of the offense charged against you, and may also ask you ques- 
 tions to test your worthiness of belief; (if, as is usually the 
 case, there are more than one specification) but if your testi- 
 mony should only be in denial or explanation of any statement 
 about just one or two of the offenses charged against you 
 here, and not about the others, and you should not say anything 
 about the others, then they can question you about the whole 
 subject of those offenses concerning which you testify, but they 
 can not question you about any offenses concerning which you 
 do not testify. 
 
 If you do take the witness stand and fail to deny or satis- 
 factorily explain any of the alleged wrongful acts about which 
 you testify at all, and about which any evidence has been 
 presented against you here, such failure on your part may be 
 commented on to the court by the trial judge advocate when 
 he presents his argument to the court at the end of the trial, 
 and the court can take it into consideration in determining 
 whether you are guilty or innocent of the offenses. Do you 
 understand fully all that I have said to you so far? If not, 
 tell me and I will try to make it clearer. 
 
 A. . 
 
 1 Summary court will omit inapplicable words and phrases. 
 613 
 
APPENDIX 9. 
 
 {If the accused says that he does not understand it fully, or if he 
 does not appear fully to understand all that has been said, go over it 
 attain and elaborate it until he does fully understand it, then proceed:) 
 
 Second. Your second choice is, that if you do not want to 
 testify under oath you may, without being sworn, say anything 
 you desire to the court as an unsworn statement, denying, 
 explaining, or excusing any of the acts charged against you 
 here. You can do this yourself, or you can have your counsel 
 do it for you, or you can do both; that is, you may say any- 
 thing yon desire yourself in this way, and have your counsel 
 add anything else for you which you want him to do. In 
 making such a statement you are not a witness and do not have 
 to take an oath and can not be questioned or cross-questioned 
 by anyone. If you wish you can file your statement in writing, 
 or have your counsel file a written statement for you, or you 
 may both make an oral statement and also file a written 
 statement, if you want to do so. In such statement you can 
 refer to the evidence produced against you here and you can 
 explain your motive in doing anything you may have done, or 
 you can deny or contradict any of the testimony given or offer 
 any excuse or explanation you see fit, and you may also, if you 
 wish, discuss the legal principles applying to your case and 
 make an argument to the court, both upon the facts of the 
 case and upon the law. Since such a statement is not given 
 under oath, and you can not be cross-examined upon it, it can 
 not be given the same weight with the court as sworn testimony 
 under oath, but it will be considered by the court and given 
 such weight as it may seem to deserve. Furthermore, even 
 though you may be sworn as a witness you may also, if you 
 wish, afterwards make a statement of this kind, not under oath, 
 either verbally or in writing. Do you understand clearly all 
 that I have said thus far? If not, tell me and I will explain 
 it again and try to make it clearer. 
 
 A. . 
 
 (As before make sure that the accused understands, and then pro- 
 ceed:) 
 
 Third. Your third choice, if you do not want to testify as 
 a witness in your own behalf, and do not desire to make an un- 
 sworn statement, either orally or in writing, is, if you so wish, 
 to remain silent ; to say nothing at all. You have a perfect 
 right to do this if you wish, and if you do so the fact that you 
 stand on your legal rights and do not take the witness stand 
 yourself, or make any statement, will not count against you 
 in any way with the court. It will not be considered by the 
 court as any admission that you are guilty, nor can it be com- 
 mented on in any way by the trial judge advocate in addressing 
 the court. It is your legal right to remain silent if you wisli 
 
 614 
 
FORMS FOR USE OF PRESIDENT OR LAW MEMBER. 
 
 to do so. Do you now understand all that I have said? If not, 
 tell me and I will explain it more fully and try to make it clear 
 to you? 
 A 
 
 (Make sure as before that the accused fully understands, then pro- 
 ceed:) 
 
 Q. Do you understand now your right to do any one of 
 these different things as I have explained them 1 to you ; that is, 
 first, to testify as a witness, if you wish ; second, to make an 
 unsworn statement, either verbally or written, as you wish, 
 or hoth, either without having been sworn as a witness or in 
 addition to your testimony if you shall be sworn; and third, 
 your right to remain silent and say nothing at all? 
 
 Knowing these various rights, take time to consult with your coun- 
 ^el and then state to the court which you will do. 
 
 615 
 
APPENDIX 10. 
 
 FORM FOR RECORD OF TRIAL BY GENERAL 
 COURT-MARTIAL, AND REVISION PROCEED- 
 INGS. 
 
 Record of Trial by General Court-martial * of 
 
 PBIVATE , A. S. No. , COMPANY , INFANTRY. 
 
 INDEX. 
 
 Page. 
 
 Arraignment 
 
 Pleas 
 
 Statement by accused 
 
 Address by counsel 
 
 Reply by trial judge advocate- 
 Findings 
 
 Previous convictions submitted. 
 
 Sentence (or acquittal) 
 
 Proceedings in revision 
 
 TESTIMONY. 
 
 Name of witness. 
 
 Direct. 
 
 Cross. 
 
 Redirect. 
 
 Exam- 
 ination 
 by court. 
 
 Recalled. 
 
 
 Page. 
 
 Page. 
 
 Page. 
 
 Page. 
 
 Page. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 See " Courts-martial, Records of trial, Chap. XV." The record will be 
 clear and legible and, if practicable, without erasure or interlineation. 
 
 Erasures or interlineations will be authenticated by the initials of the trial 
 judge advocate or of the president, or, in a proper case, of the assistant trial 
 judge advocate. 
 
 The pages of the record will be numbered at the bottom, and margins of 
 1 inch will be left at the top, bottom, and left side of each page. 
 
 616 
 
RECORD OF TRIAL BY GENERAL COURT-MARTIAL. 
 EXHIBITS. 
 
 
 Number. 
 
 Page 
 where in- 
 troduced. 
 
 Deposition of Capt. . 
 
 
 
 D eoosition of P v t. 
 
 
 
 Letterof 
 
 
 
 
 
 
 Knife . 
 
 
 
 
 
 
 !not desired by accused | 
 and forwarded here- 1 Receipt (or) \ Attached to 
 
 with a | Affidavit of delivery./ record, 
 
 furnishe^ the accused] 
 
 Proceedings of a general court-martial which convened at 
 , pursuant to the following order (or orders) : 
 
 (Here insert a literal copy of the order appointing the court and, 
 foUoiwng it, copies of any orders modifying the detail.) 3 
 
 Fort - , , 
 
 -jo 
 
 , , -Lt> . 
 
 The court met pursuant to the foregoing order (or orders) at 
 
 o'clock . 
 
 Col. - , 5th Cavalry. 
 Lieut. Col. - , 1st Infantry. 
 Lieut. Col. - , 3d Field Artillery. 
 f j. A. G. D., law member. 
 
 Mnj. , 3d Field Artillery. 
 
 Capt. - , 4th Infantry. 
 
 Capt. - , 5th Cavalry. 
 
 Capt. - , 5th Cavalry, trial judge advocate. 
 
 First Lieut. - , 3d Field Artillery, assistant trial judge advocate. 
 
 Capt. - , 4th Infantry, defense counsel. 
 
 Gapt. , 4th Infantry, assistant defense counsel. 
 
 A carbon copy will always be prepared whenever the record is to be type- 
 written by a reporter. (See pars. 355a, 357 (b), and 366 (b), M. C. M.) 
 
 2 Line out Inappropriate words. 
 
 9 Words in italics will not be copied into the record. 
 
 * In the record of the proceedings of a court-martial at its organization for 
 the trial of a case the officers detailed as members (including, and so designat- 
 ing, the law member), trial judge advocate, assistant trial judge advocate, 
 defense counsel and assistant defense counsel, will be noted by name as 
 present or absent. In the record of the proceedings of subsequent sessions In 
 the same case (except in proceedings in revision) the following form of words 
 will be used, subject to such modification as the facts may require : " Present, 
 all the members of the court, the trial judge advocate, the assistant trial 
 judge advocate, the defense counsel, and the assistant defense counsel." 
 
 617 
 
APPENDIX 10. 
 
 ABSENT.* 
 
 Capt. , 1st Infantry (detached service). 
 
 Gapt. , 3d Field Artillery (leave of absence). 
 
 The court proceeded to the trial of Private - , Array Serial 
 Number , Company - , Infantry, who, on appearing be- 
 fore the court (introduced as his individual counsel) or 
 
 (stated, upon being asked by the defense counsel in open court, that 
 he did not desire to introduce any individual counsel, and was de- 
 fended by the defense counsel). 
 
 was sworn as reporter. 
 
 (If an interpreter is to be used lie should be sworn ivhen his services 
 are required.) 
 
 The order appointing the court (and tfce order or orders modifying 
 the detail, if any) was (or were) read to the accused. 
 
 Capt. , 4th Infantry, announced that he was the accuser in 
 
 the case and was excused and withdrew. 
 
 (Insert here any challenge by ihe trial judge advocate, and the 
 action thereon; see par. 120, M. C. M.) 
 
 The accused was asked if he objected to being tried by any member 
 present named in the order or modifying orders appointing the court, 
 or desired to exercise his right to one peremptory challenge against 
 any member except the law member; to which (after being in open 
 court advised of his right to do both or either, if he desired) he replied 
 in the negative; or 
 
 Defense: (Insert statement.) 
 
 (In case of a peremptory challenge by either side the challenged, 
 member will be excused by the president and forthwith withdraw. ) 
 
 (Except in case of a peremptory challenge insert the statement of 
 the challenged member, who ordinarily should respond to the challenge 
 by briefly admitting or denying the grounds of the challenge. Should 
 the accused, after the statement, desire to call upon the member to 
 testify as to his competency, the record should continue:) 
 
 The accused having requested that the challenged member be sworn 
 
 as to his competency to act as a member of the court, was 
 
 sworn by the trial judge advocate, and testified as follows : 
 
 (Evidence pro and con may be introduced, and, except in cases 
 where the member is the accuser or a witness for the prosecution, 
 and such fact is admitted, challenges which are not withdrawn must 
 be passed upon by the court. In such case the record ivill proceed:) 
 
 The challenged member withdrew, the court was closed and voted 
 upon the challenge by secret written ballot, and, upon being opened, 
 
 A member of a court-martial, or a defense counsel, who knows, or has 
 reason to believe, that he will, for proper reason, be absent from a session of the 
 court, will inform the trial judge advocate accordingly. When a member of a 
 court-martial, or a defense counsel, is absent from a session thereof, the trial 
 Judge advocate will cause that fact, together with the reason for such absence, 
 if known to him, to be shown in the record of the proceedings. If the reason 
 for such absence is not known to the trial judge advotate, he will cause the 
 record to show the member as absent, cause unknowo. 
 
 618 
 
RECORD OF TRIAL BY GENERAL COURT-MARTIAL. 
 
 the president announced in the presence of the trial judge advocate, 
 the assistant trial judge advocate, the defense counsel and the assist- 
 ant defense counsel, the accused and individual counsel, if any, for 
 the accused, that the challenge was (not sustained) or (sustained}. 
 
 (If the challenge is sustained:) then withdrew. 
 
 The accused was asked if he objected to any other member present, 
 to which he replied in the negative, or 
 
 Defense : 
 
 (Insert objection or peremptory challenge, as the case may be m 
 full in the record, and continue as before until accused replies in the 
 negative.) 
 
 The members of the court, the trial judge advocate, and the as- 
 sistant trial judge advocate were then sworn. 
 
 (A nolle proscqwi may be entered either before or after arraignment 
 and plea; par. 15S, M. C. M.) (The foUou'iny form may be used:) 
 
 Prosecution: By direction of , the officer who ordered this 
 
 court, the prosecution withdraws the following charges and specifica- 
 tions and will not pursue the same further at the present trial. 
 
 (If delay is desired, request should now be made and the proceedings 
 recorded. If no continuance is requested, the record should continue:} 
 
 The accused was then arraigned upon the following charges and 
 specifications : 8 
 
 CHARGE I : Violation of the Article of War. 
 
 Specification: In that, etc. 
 
 CHARGE II : Violation of the Article of War. 
 
 Specification 1: In that, etc. 
 
 Specification 2: In that, etc. 
 
 (Signature of accuser) 
 
 (Name and grade.) 
 
 (Organization and corps, service or department) 
 
 AFFIDAVIT. 3 
 
 Before me, the undersigned, authorized by law to administer 
 oaths in cases of this character, personally appeared the above- 
 warned accuser this day of , 19 , and, made 
 
 6 All words that precede the charge proper are not parts of the charges 
 and will not ~be copied into the record, but the name, grade, and organization 
 of the person subscribing the charges and the affidavit thereto, and the order 
 of reference for trial, will be copied fnto the record after the charges and 
 specifications. 
 
 (1) At (*) strike out words not applicable. 
 
 (2) If the accuser has personal knowledge of the facts stated in one or more 
 specifications or parts thereof, and his knowledge as to other specifications or 
 parts thereof is derived from investigation of the facts, the form of the oatli 
 will be varied accordingly. In no case will he be permitted to state alter- 
 natively, as to any particular charge or specification, that he either has 
 personal knowledge or has investigated. (See note to par. 75, M. C. M.) 
 
 (3) If the oath is administered by a civil officer having a seal, his official 
 seal should be affixed. 
 
 619 
 
APPENDIX 10. 
 
 oath that he is a person subject to military law and that he per- 
 sonally signed the foregoing charges and specifications, and further 
 that he * has personal knowledge of the matters set forth In 
 
 specifications ; and * has 
 
 (Indicate by specification and charge numbers.) 
 
 investigated the matters set forth in specifications 
 
 (Indicate 
 
 , and that the same are true 
 
 by specification and charge numbers.) 
 in fact, to the best of his knowledge and belief. 
 (Name) 
 
 (Rank and organization.) 
 
 (Official character, as summary court, notary public, etc.) 
 
 (Copy in here also showing that it was read to the accused as a 
 part of the arraignment the order referring the case for trial.) 
 
 (In the case of a plea to the jurisdiction or of the statute of limi~ 
 tations, or other special plea, the record will show it fully and the 
 action thereon, after which it will show the pleas on the general issue 
 [guilty or not guilty].) 
 
 The accused then pleaded as follows: 
 
 To the Specification, Charge I : Guilty or Not guilty. 
 
 To Charge I : Guilty or Not guilty. 
 
 To Specification 1, Charge II : Guilty or Not guilty. 
 
 To Specification 2, Charge II : Guilty or Not guilty. 
 
 To Charge II : Guilty or Not guilty. 
 
 The following paragraphs or parts of paragraphs of the Manual for 
 Courts-Martial that set out the gist of each of the several offenses 
 charged were read to the court by the trial judge advocate, to wit : 
 
 (If it appears upon the face of the charges that the accused might 
 successfully plead the statute of limitations thereto, or to any specifi- 
 cation or charge, but has not interposed such a plea, the record will 
 show at this point that the law member, if present or in the absence 
 of the law member the president advised the accused of his legal 
 rights in the premises (par. 149 (h), H. G. M.) t and such advice and 
 the response of the accused thereto will appear in full in the record at 
 this point. Such advice may be substantially in the form set forth 
 in Appendix 9, Form II.) 
 
 (In case the accused pleads guilty in whole or in part to any charge 
 or specification, the record will show that the laio member, if present, 
 or in his absence the president of the court, made to the accused the 
 explanation and asked him the questions required by paragraph 15 
 (d), H. C. M., and the answers of the accused to such questions. 
 Such explanations and questions may be substantially in the form set 
 forth in Appendix 9, Form HI.) 
 
 (If the accused then abides by a plea of guilty, the trial judge advo- 
 cate icill formally advise him in open court of his right to introduce 
 evidence in explanation or extenuation of his offense and should assist 
 
 620 
 
RECORD OF TRIAL BY GENERAL COURT-MARTIAL. 
 
 him and the defense counsel and any other counsel for the accused in 
 securing it; par. 96, M. C. M.) 
 
 (The opening statement of the trial judge advocate will be inserted 
 in the record at this point.) 
 
 Sergt. John Jones, Company - , - Infantry, a witness for 
 the prosecution, was sworn and testified as follows : 
 
 Q. Do you know the accused? If so, state who he is. 
 
 A. I do ; Private - . 
 
 Q. Is he in the military service of the United States? 
 
 (If accused is not in the military service of the United States, show 
 how otherwise subject to military laiv.) 
 
 Q. What is his grade and organization ? 
 
 A 
 
 Q. What is his Army serial number? 1 
 
 A. - . 
 
 (The succeeding questions of the prosecution and their answers 
 should follow in order.)* 
 
 CBOSS-EXAMINATION. 
 
 Questions by defense: 
 Q. - ? 
 
 (// the defense declines to cross-examine the witness the record 
 should state:) 
 The defense declined to cross-examine the witness. 
 
 KEDIRECT EXAMINATION. 
 
 Questions by prosecution: 
 Q. - ? 
 
 KECEOSS EXAMINATION. 
 
 Questions by defense : 
 Q. - ? 
 A. - . 
 
 Q. - ? 
 
 Prosecution: (Insert objection.) 
 
 Defense: (Insert reply, etc.) 
 
 The law member (or the president in the absence of the Taw mem- 
 ber) ruled (insert here ruling in full). (See Appendix 9, Form 7, 
 pars. 2 and 3.) 
 
 7 It is not necessary to ask every witness as to the serial number of the 
 eccused. But it should be established by the testimony of one witness, at 
 least, who knows it. 
 
 & The record should set forth fully all the testimony introduced upon the 
 trial, the oral portion as nearly as practicable in the precise words of the 
 witness. If the court should decide to strike out any part, it will not be 
 literally stricken out or omitted from the record, but will not be thereafter 
 considered as part of the evidence. 
 
 21358 20 - 40 621 
 
APPENDIX 10. 
 
 (If the ruling by the law member be upon any question other than 
 the admissibility of evidence, so that under tlie provisions of A. W. 
 St, and of paragraphs 89 and 89a, M. C. M., it is subject to objection 
 by a member of the court, and in such case a>ny member objects to 
 the ruling, the court will be closed and proceed to consider and vote 
 upon the question.) (See A. W. SI; and par. 89a, M. C. M., and 
 Appendix 9, Form I, par. S.) 
 
 (If the ruling be by the president in the absence of the law member, 
 the record icill read:) 
 
 "The president (in the absence of the law member) ruled (insert 
 here the ruling in full)" (See Appendix 9, Form I, par. 1.) 
 
 (If any member objects to any ruling by the president, the court 
 will close to consider and vote on the question.) (A. W. 31, and par. 
 89, M. C. M.) 
 
 (Whenever the court closes to vote on any question, except on a 
 challenge, on the findings, or on the sentence, upon opening the record 
 will continue:) 
 
 The court was closed, and upon being opened, the president, in the 
 presence of the accused and his counsel, announced 
 
 (If the objection is not sustained the record will continue as m a 
 case where there is no objection. If the objection is sustained there 
 will be no further entry about the matter of that objection.) 
 
 (If the objection be by the defense or a member of the court the 
 record will proceed in a corresponding way.) 
 
 EXAMINATION BY THE COURT. 
 Q. ? 
 
 (// the court considers it necessary to hear the testimony of a 
 icitncss read, or the witness desires to have any part of his testimony 
 read for correction, the record will show that fact and the correc- 
 tions, if any.) 
 
 (After the proper foundation for the introduction of a icriting is 
 laid, the record will continue:) 
 
 Prosecution: "I offer in evidence the (describing the writing 
 
 or other proposed exhibit)." 
 
 Defense: (Insert his reply.) (If there is no objection the record 
 will continue:) 
 
 The paper (or oilier proposed exhibit) was then received and read 
 in evidence and marked exhibit .* 
 
 All documents and papers made part of the proceedings, or copies of them, 
 will be securely fastened (6f not pasted) to th record, in the order of their 
 introduction, after the space left for the remarks of the reviewing authority, 
 and marked " 1," " 2," " 3," etc., so as to afford easy reference. Documents or 
 other writings, or matter excluded by the court will not ordinarily be appended 
 to the record, except documents excluded and marked for identification, but 
 the record should simply specify the character of the writings and the grounds 
 upon which they were ruled out. 
 
RECORD OF TRIAL BY GENERAL COURT-MARTIAL. 
 
 (If there is objection, the record will continue by stating any fur- 
 ther remarks of the prosecution:) (Show ruling d% outlined above.) 
 
 (If it is the defense that seeks to introduce the writing, the record 
 will proceed in a corresponding manner, except that if the objection 
 to the paper be sustained the defense coun-sel or counsel for the 
 accused may, if he thinks the ruling of the court wrong, and con- 
 siders it material to the rights of the accused that the paper should 
 be brought to the attention of the reviewing authority, ask that the 
 paper be marked for identification and appended to the record, in 
 which case the paper w-ill be marked with the initials of the trial 
 judge advocate and appended to the record as a " paper marked for 
 identification." ) 
 
 (At the close of the prosecution, the record will continue:) 
 
 " Prosecution : The prosecution rests." 
 
 (If upon the close of the case for the prosecution or at any time 
 therafter during the trial, before the close of the evidence the court 
 should under the provisions of par. 158c, M. C. M., consider whether 
 the evidence, introduced by the prosecution, or before the court, is 
 legally sufficient to support a finding of guilty either as to all of the 
 specifications and charges before the court, or as to any particular 
 one or more thereof, such question wiU be determined, in the first 
 instance, by the law member of the court, if any, or if there be no 
 law member of the court, then by the president, by his ruling in open 
 court upon the question.) (Insert here ruling in full.) (A. W. 31.) 
 
 (If, however, in such a case, any member of the court objects to such 
 ruling, the court will close and vote by secret written ballot on the 
 question.) (A. W. 81, and par. 158c, M. C. M.) 
 
 (If the court should so determine that the evidence then before the 
 court in favor of the prosecution is not legally sufficient to sustain the 
 specifications and charges, or any particular one or more thereof, then, 
 in any such case, the court will forthwith direct and the president will 
 on the opening of the court announce in open court a finding of not 
 guilty, either of all the specifications and charges, or of such particular 
 specification and charges, if any, as the court shall so find not to be 
 supported by legally sufficient evidence.) 
 
 (If the court adjourns to meet another day, the record should con- 
 tinue:) 
 
 " The court then, at o'clock . m., on , 19 , adjourned 
 
 to meet at o'clock . m., on . 
 
 Captain t 5th Cavalry, Trial Judge Advocate, 
 
 C23 
 
APPENDIX 10. 
 
 Fort, - , , 19 . 
 
 The court met, pursuant to adjournment, at o'clock . in. 
 
 Present : 
 
 All the members of the court, the trial judge advocate, the assistant 
 trial judge advocate, the defense counsel and the assistant defense 
 counsel. 
 
 (The record also should shoiv the names of all absentees, if any in- 
 cluding those absent at preceding sessions; the cause of absence of 
 each absent member shall appear in the record.) 
 
 The accused, his individual counsel (if any), and the reporter were 
 also present. 
 
 (If the proceedings of the previous day are required to be read, that 
 fact will be recorded in the following form:) 
 
 The proceedings of were read and approved or corrected, as 
 
 follows: (Date.) 
 
 (In the latter case enumerate corrections for insertion in the record 
 at this point, giving page and line on which they occur; and then indi- 
 cate them in their proper places on the face of the record, the trial 
 judge advocate initialing each place.) 
 
 (Insert at this point the opening statement of the defense counsel or 
 counsel for the accused in full.) 
 
 Corpl. John Smith, Company , Infantry, a witness for 
 
 the defense, was sworn and testified as follows : 
 
 QTTESTION BY THE TRIAL JUDGE ADVOCATE. 
 
 Q. Do you know the accused? If so, state who he is. 
 A. I do ; Private . 
 
 QUESTIONS BY THE DEFENSE. 
 
 Q. ? 
 
 (The succeeding questions of the defense and their answers should 
 follow in order.) 
 
 CROSS-EXAMINATION. 
 
 Questions by prosecution: 
 Q. ? 
 
 REDIRECT EXAMINATION. 
 
 Questions by defense: 
 
 Q. ? 
 
 A. . 
 
 (Should the accused test.ify in his own behalf the record will con- 
 tinue:) 
 
 EXAMINATION OF THE ACCUSED. 
 
 The accused, at his own request, was sworn and testified as follows : 
 Questions by defense: 
 
 Q. ? 
 
 A. . 
 
 624 
 
RECORD OF TRIAL BY GENERAL COURT-MARTIAL. 
 
 CROSS-EXAMINATION. 
 
 Questions by prosecution : 
 Q. ? 
 
 REDIRECT EXAMINATION. 
 
 Questions by defense : 
 
 Q. - -? 
 
 A. . 
 
 (Should the accused make an unsworn oral statement, it will be 
 inserted in full.) 
 
 (If the accused does not testify or make any statement in his own 
 behalf, the record will show at this point the explanation of his rights 
 and the questions asked him by the law member (or, in the absence of 
 the law member, the president) as required by par. 215, M. C. M., and 
 his answers thereto.) (Sec Appendix 9, Form IV.) 
 
 (If the defense offers no other witness, the record should co-ntinue:) 
 
 The defense had no further testimony to offer and no statement to 
 make or having no further testimony to offer, made the following 
 oral statement, 
 
 Or, having no further testimony to offer, submitted a written state- 
 ment, which was read to the court, and is hereto appended and 
 marked . 30 
 
 Or, requested until o'clock . m., to prepare his defense. 
 
 (// the court takes a recess during the time asked for, the record 
 will continue:) 
 
 The court then took a recess until - o'clock . m., at which 
 hour the members of the court, the trial judge advocate, the assistant 
 trial judge advocate, the defense counsel, the assistant defense 
 counsel, the accused, his individual counsel (if any), and the reporter 
 resumed their seats. 
 
 (Or, if the court has other business before it, the record may 
 continue:) 
 
 The court then proceeded to other business, and at o'clock 
 
 . m. resumed the trial of this case, at which hour, etc. 
 
 Defense: (Insert statement.) 
 
 -Or, the defense read to the court a statement, which is hereto 
 appended and marked . 
 
 The prosecution: (Insert statement.) 
 
 Or, the prosecution read to the court a statement, which is hereto 
 appended and marked - . 
 
 The court was closed, and upon secret written ballot, two-thirds 
 of the members present at the time the vote was taken concurring in 
 each finding of guilty (if any), finds the accused: 
 
 10 The statement of the accused, or argument in his defense, and all pleas to 
 the jurisdiction, in bar of trial, or in abatement, when in writing, should be 
 sijrned by the accused himself, referred to in proceedings as having been sub- 
 mitted by him, and appended to the record. 
 
 625 
 
APPENDIX 10. 
 
 Of the Specification, Charge I : Guilty or Not guilty. 
 
 Of Charge I : Guilty or Not guilty. 
 
 Of Specification 1, Charge II: Guilty, except the words ** 
 
 substituting therefor the words " " ; of the excepted words, 
 
 " Not guilty " and of the substituted words " Guilty." 
 
 Of Specification 2, Charge II : Guilty or Not guilty. 
 
 Of Charge II: Guilty or Not guilty; or Not guilty, but guilty of 
 violation of the Article of War. 
 
 (If the accused is found not guilty upon all specifications and 
 charges, the record will continue:) 
 
 The court was opened, and, in the presence of the accused and his 
 counsel, the president announced in open court that the accused was 
 acquitted upon all specifications and charges. 
 
 (In case of a finding of guilty upon a specification charging an 
 offense for which the death penalty is made mandatory by law, or 
 upon the charge under which such specification is laid, the record will 
 shoio at this point that all the members of the court present at the 
 time the vote was taken concurred therein.) 
 
 (If the accused is found guilty, the record should continue:) 
 
 The court was opened and the trial judge advocate stated, in the 
 presence of the accused and his counsel, that he had no evidence of 
 previous convictions to submit. 
 
 Or, read the evidence of previous convictions" (copies of 
 
 which are hereto appended and marked "4," "5," etc), or (the 
 accused having first stated that he did not object to the fairjiess or 
 correctness of the summaries, from the service record of the accused, 
 
 synopses of previous convictions, as follows: - ), and 
 
 thereupon asked the accused whether the evidence of such previous 
 convictions was correct^ and whether he had any statement to make in 
 explanation or extenuation thereof, or in relation thereto, to which 
 the accused answered . 
 
 Thereupon the trial judge advocate read to the accused the state- 
 ment of accused's service, as shown on the charge sheet, and asked 
 him whether it was correct, and whether he had any statement or 
 correction to make concerning it, to which the accused answered 
 
 The court was closed, and upon secret written ballot sentences the 
 
 accused to (%or % or all) of the members present at the 
 
 time the vote was taken, concurring. See A. W. 4$, and pars. 29J f and 
 808, M. C. M.) 
 
 The court was opened, and in the presence of the accused and his 
 counsel the president announced the findings and sentence in open 
 court." 
 
 11 For form of evidence of previous conviction, see par. 306, M. C. M. 
 " To be omitted in those rare cases where under the provisions of par. 332a, 
 M. C. M., the court directs that the sentence be not announced in open court. 
 
 626 
 
RECORD OF TRIAL BY GENERAL COURT-MARTIAL. 
 
 The court then, at . m., proceeded to other business. 
 
 Or, adjourned until . m., the instant. 
 
 Or, adjourned to meet at the call of the president. 
 
 ~~~i 
 
 Colonel, 5th Cavalry, President. 
 
 Captain, 5th Cavalry," Trial Judge Advocate." 
 (At least two blank sheets will be inserted after the 
 and before the exhibits for the decision and orders of the reviewing 
 authority.) 
 
 BINDING AND BRIEF. 
 
 (The papers forming the complete record, together with those re- 
 quired to be appended thereto (see clause 56 of subpar. (&), par. 357, 
 M. C. M.), will be securely bound together at the top, leaving a margin 
 of at least 2% inches at the top of each page (easily removed 
 clips or paper fasteners will not be used) and briefed on the back, 
 as follows: 
 
 Private , A. S. No. 
 
 Company , Infantry. 
 
 Trial by General Court-MartiaL 
 FORM FOR REVISION OF RECORD." 
 
 Fort . 
 
 -, 19. 
 
 The court reconvened at o'clock . m., pursuant to the fol- 
 lowing indorsement: 
 
 (Insert copy of indorsement.) 
 
 TEESENT. 
 
 Col. - , 5th Cavalry. 
 
 Lieut. Col. , 1st Infantry. 
 
 13 In case of the death, disability, or absence of the president or the trial 
 judge advocate, gee A. W. 33 and par. 357b, M. C. M. When the record is 
 completed the trial judge advocate will forward it without delay to the ap- 
 pointing authority. 
 
 11 In those rare cases in which, under par. 332a, M. C. M., the court has 
 directed that the sentence be not announced in open court, if the trial judge 
 advocate records the findings and sentence by the use of a typewriter medium, 
 he will certify immediately after the authentication of the record as follows : 
 " I certify that I recorded the findings and sentence of the court." 
 
 16 See " Record of revision," par. 357, supra. The court is usually recon- 
 vened by indorsement on the charges returning them to the president of the 
 court with the directions of the appointing authority. 
 
 The record should show the name of each member of the court present 
 during the proceedings in revision. Care must be taken that no member of 
 the detail for the court is present except those who were present at the former 
 proceedings and voting on the original findings and sentence. 
 
 627 
 
APPENDIX 10. 
 
 Lieut. Col. , 3d Field Artillery. 
 
 Maj. , J. A. G. D., law member. 
 
 Maj. , 3d Field Artillery. 
 
 Capt. , 5th Cavalry. . 
 
 Capt. , 5th Cavalry, trial judge advocate. 
 
 First Lieut. , 3d Field Artillery, assistant trial Judge advo- 
 cate. 
 
 Capt. , 4th Infantry, defense counsel. 
 
 Capt. , 4th Infantry, assistant defense counsel. 
 
 ABSENT. 
 
 Capt. , 1st Infantry (detached service). 
 
 Capt. , 3d Field Artillery (leave of absence). 
 
 Capt. - , 4th Infantry (did not participate in findings or sen- 
 tence). 
 
 (Insert names of absentees and state cause of absence, if knoivn.) 
 
 The trial judge advocate read to the court the foregoing indorsement 
 of the convening authority. 11 
 
 The court was closed and revokes its former findings and sentence, 
 and by secret written ballot, two-thirds of the members present at the 
 time the vote was taken concurring in the findings of guilty (if any), 
 finds the accused, etc. 
 
 Or, revokes its former sentence and by secret written ballot, etc., 
 sentences the accused, etc. (See A. W. 40, and pars. 3o2 and 864, 
 M. C. M.) 
 (See A. W. 40, and pars. 352 and 364, M. C. H.) 
 
 Or, amends the record by, etc. 
 
 The trial judge advocate and assistant trial judge advocate and the 
 defense counsel and assistant defense counsel were then recalled and 
 
 the court at o'clock . m., etc. 
 
 > 
 Colonel, 5th Cavalry, President. 
 
 Captain, 5th Cavalry, Trial Judge Advocate. 
 
 (The record of revision will be appended to the original proceed- 
 ings, following them immediately, before the exhibits, and will be 
 returned to the appointing authority.) 
 
 17 The trial judge advocate will also read any other indorsements that may 
 be connected with the proceedings in revision. 
 
 628 
 
APPENDIX 11. 
 
 FORM FOR RECORD OF TRIAL BY SPECIAL 
 COURT-MARTIAL. 
 
 Proceedings of a special court-martial which convened at , 
 
 pursuant to the following order: 
 
 (Here insert a literal copy of the order appointing the court and, 
 following it, copies of any orders modifying the detail.) 
 
 FORT , 
 
 -1Q 
 
 , -LO . 
 
 The court met pursuant to the foregoing order at o'clock 
 
 . m. 
 
 PRESENT. 1 
 
 Maj. , 5th Cavalry. 
 
 Capt. , 1st Field Artillery. 
 
 Capt. , Medical Corps. 
 
 First Lieut. , 10th Infantry. 
 
 First Lieut. , 5th Cavalry. 
 
 First Lieut. , 29th Cavalry, trial judge advocate. 
 
 First Lieut. , 1st Field Artillery, defense counsel. 
 
 Capt. , Coast Artillery Corps. 
 
 The court proceeded to the trial of Private * , Company , 
 
 Infantry, who 4 (on appearing before the court introduced 
 as his individual counsel) (was defended by the defense 
 
 counsel). 
 
 ( was sworn as reporter.) 8 
 
 (Capt. , because ineligible, (being the accuser) (a witness 
 for the prosecution) ( ) was excused and withdrew.) 
 
 (First Lieut. was, upon (peremptory) challenge, 8 excused 
 
 and withdrew.) 
 
 "' In the record of the proceedings of a court-martial at its organization for 
 the trial of a case the officers detailed as members and as trial judge advocate 
 and defense counsel will be noted by name as present or absent. 
 
 2 Statement of neither reason nor authority for the absence is required. 
 
 * Insert name and Army serial number. 
 
 * Words inclosed in parentheses will in a proper case be omitted. 
 
 6 When authorized by the appointing authority, a stenographic reporter may 
 be employed for a special court-martial, to be paid at the rates fixed in par. 
 113. (See par. 112, M. C. M.) 
 
 Upon a challenge the record will set out in full the proceedings had thereon, 
 including all testimony taken and statements made relative thereto, as well a 
 the disposition thereof made by the court. 
 
 629 
 
APPENDIX 11. 
 
 The accused stated that he had no objection to trial by any member 
 (remaining) present. 
 
 The members of the court and the trial judge advocate were sworn. 
 
 The accused was arraigned upon the following charges and specifi- 
 cations : 
 
 CHARGE I : Violation of the Article of War. 
 
 Specification: In that, etc. 
 
 CHARGE II : Violation of the Article of War. 
 
 Specification 1: In that, etc. 
 
 Specification 2: In that, etc 
 
 Captain, Infantry. 
 
 AFFIDAVIT. 
 
 (See form, Appendix 10; page 619, supra.) 
 
 (Insert here also a copy of the order referring the case for trial.) 
 
 PLEAS. 
 
 To all the specifications and charges: . 
 
 To the Specification, Charge I: . 
 
 To Charge I : - . 
 
 To Specification 1, Charge II : . 
 
 To Specification 2, Charge II : . 
 
 To Charge II : - . 
 
 The following-named witnesses were sworn and testified : 
 
 (If a reporter has been authorized, or the testimony ordered re- 
 duced to writing, the record will be prepared in the same way a* the 
 record of a general court-martial. (See Appendix 10.) Otherwise 
 the record may be in substantially the following form:) 
 
 Sergt , Infantry. (Here insert brief written summary 
 
 of the testimony of the witness.) 
 
 Corpl. , - Infantry. (Here insert brief written summary 
 of the testimony of the witness.) 
 
 Pvt. , - Infantry. (Here insert brief written summary 
 
 of the testimony of the ivitness.) 
 
 (In case of any question to which objection is made such question 
 will be inserted at length and the action of the court thereon, whether 
 sustaining or overruling the objection; and, if the question be 
 answered, the answer of the witness, thereto; see par. 358 (6), 
 If. C. M. In sutfi case the ruling will be by the president in the form 
 shown in Appendix 9. The record may be in substantially the same 
 form as in the case of an objection to questions in a general court- 
 martial. See form, Appendix 10.) 
 
 The defense was given full opportunity to examine each witness. 
 
 (The depositions of the following-named persons were received in 
 evidence and are hereto appended, marked , - f .) 
 
 630 
 
RECORD OF TRIAL BY SPECIAL COURT- MARTIAL. 
 
 The accused (at his own request was sworn and testified) (made an 
 oral statement to the court, in substance as follows : here inserting 
 summary of the accused's statement) (submitted a statement in writ- 
 ing, which is hereto appended, marked .) 
 
 (The rights of the accuse'd as a witness were explained to him, as 
 required by par. 215, M. G. M., in the form prescribed in Appendix 9. ) T 
 
 The accused stated that he had nothing further to offer. 
 
 (An argument was made by counsel on behalf of the accused, in 
 substance as follows : ) 
 
 (The trial judge advocate made an argument In substance as fol- 
 lows : ) 
 
 (A written argument was submitted on behalf of the accused, and 
 is hereto appended, marked .) 
 
 The court was closed, and upon secret written ballot, two-thirds of 
 the members present at the time the vote was taken concurring in each 
 finding of guilty (if any) finds the accused.* 
 
 Of all specifications and charges : .' 
 
 Of the Specifications, Charge I : . 
 
 Of Charge I : . 
 
 Of Specification 1, Charge II : . 
 
 Of Specification 2, Charge II : . 
 
 Of Charge II : . 
 
 The court was opened and the president in open court in the pres- 
 ence of the accused and his counsel announced that the court (acquits 
 the accused on all specifications and charges) or (will receive evidence 
 of previous convictions of the accused, if any. In the latter case, the 
 record will continue in form similar to that of a general court-martial, 
 Appendix 10). 
 
 The court then, at o'clock . m. (proceeded to other business) 
 
 (adjourned). 10 
 
 Major, Infantry, President. 
 
 First Lieutenant, Infantry, Judge Advocate. 
 
 Approved, , 19 . 
 
 Colonel, Infantry, Commanding. 
 
 7 In a case where a stenographic reporter is employed or the evidence is 
 ordered recorded, the explanation of the president and the reply of the 
 accused thereto will appear in full in the record of trial. (See par. 215, 
 M. C. M., and form Appendix 10.) 
 
 8 See A. W. 43, and par. 294, M. C. M. 
 
 9 For action when the accused pleads guilty in whole or in part, see par. 
 154 (d), M. C. M. 
 
 10 One copy only of the record will be prepared, except in cases where the 
 testimony is ordered recorded, when a carbon copy will be prepared and 
 delivered to the accused, upon his request, in the same manner prescribed 
 in the case of a general court-martial. (See pars. 117, 357 (&), clause 3, and 
 359, M. C. M.) 
 
 631 
 
APPENDIX 12. 
 
 FORM FOR RECORD OF TRIAL BY SUMMARY 
 COURT. 
 
 Complete the original charge sheet (see form, Appendix 5) upon 
 which is indorsed the original order of reference for trial, as the 
 record of trial by summary court. (See pars. 79 (a) and 363, 
 M. G. M.) 
 
 (The indicated spaces on the third page of the charge sheet will be 
 utilized by the summary court for pleas, findings, and sentence. The 
 form may be substantially as follows :> 
 
 Findings: * (If the findings as to all the specifications and charges 
 are the same, a single proper entry, such as " Guilty " or " Not 
 guilty," will be made* If necessary, 3 however, in order to show the 
 facts, detailed entries will be made.) 
 
 Sentence : 4 . 
 
 Captain, Infantry, Summary Court. 
 
 Approved, , IP. 
 
 Colonel, Infantry, Commanding. 
 
 1 If a special plea is ma,4e the record will set out in full the proceedings 
 had thereon including tke substance of all testimony and statements made 
 relative thereto, as well as the disposition made thereof by the court. 
 
 2 For action in case the accused does not testify or make any statement 
 in his own behalf, see par. 215, M. C. M., and Form IV, Appendix 9. 
 
 3 In case the accused is a noncommis?ionsd officer (i. e., a corporal, see 
 Appendix 21), he will be asked, at the outset of the trial, whether he objects 
 to trial by summary court-martial ; and the fact of his being so asked, and 
 his answer to the question, will be written down in the record of tria?, and 
 also in the report of trial. (See "note" to par. 43(fe), M. C. M.) 
 
 4 For action in case accused pleads guilty, see par. 351 (d), M, C. M< and 
 Form III, Appendix 9. 
 
 632 
 
APPENDIX 13. 
 FORMS OF SENTENCES. 
 
 (For forms for action by reviewing authority on sentences by courts- 
 martial, see Appendix 15.) 
 
 A sentence adjudged by a court-martial will, in a proper case, be 
 expressed substantially in one or another of the forms following. 
 When desirable, in a proper case, two or more of the forms may be 
 combined. 
 
 1. To have his pay for days detained. 
 
 2. To have two-thirds (or oilier fraction) of his pay per month 
 for months detained. 
 
 3. To forfeit days' pay. 
 
 4. To forfeit two-thirds (or other fraction) of his pay per month 
 for months. 
 
 5. To perform hard labor for days (or months). 
 
 6. To be confined at hard labor for days (or months). 
 
 7. To be confined at hard labor, at such place as the reviewing 
 authority may direct, for days (or months or years). 
 
 8. To be confined at hard labor, at such place as the reviewing 
 
 authority may direct, for months and to forfeit two-thirds 
 
 (or other fraction) of his pay per month for a like period. 
 
 9. To be dishonorably discharged the service and to forfeit all pay 
 and allowances due or to become due. 
 
 10. To be dishonorably discharged the service, to forfeit all pay and 
 allowances due or to become due, and to be confined at hard labor, 
 
 at such place as the reviewing authority may direct, for days 
 
 (or months or years). 
 
 11. To be reduced to the grade of private. 
 
 12. To be deprived of all rights and privileges arising from his 
 certificate of eligibility to promotion. 
 
 13. To be admonished. 
 
 14. To be reprimanded. 
 
 15. To be restricted to the limits of his post (or other place) 
 for months. 
 
 16. To be suspended from duty for months. 
 
 17. To be suspended from command for month 
 
 18. To be suspended from rank for months. 
 
 19. To be reduced in rank files. 
 
 20. To be reduced in rank so that his name shall appear in the 
 lineal list of officers next below that of . 
 
 633 
 
APPENDIX 13. 
 
 21. To be dismissed the service and to forfeit all pay and allow- 
 ances due or to become due. 
 
 22. To pay to the United States a fine of dollars and to be 
 
 confined at hard'labor, at such place as the reviewing authority may 
 
 direct, until said fine is so paid, but for not more than months 
 
 (or years). 
 
 23. To pay to the United States a fine of dollars, to be con- 
 fined at hard labor, at such place as the reviewing authority may 
 
 direct, for months (or years), and to be further confined at 
 
 hard labor until said fine is so paid, but for not more than 
 
 months (or years), in addition to the months (or years) here- 
 inbefore adjudged. 
 
 24. To be dishonorably discharged the service of the United States, 
 to forfeit all pay and allowances due or to become due, and to be 
 confined at hard labor, at such place as the reviewing authority may 
 direct, for the term of his natural life. 
 
 25. To be shot to death with musketry. 
 
 26. To be hanged by the neck until dead. 
 
 634 
 
APPENDIX 14 
 FORMS FOR SYNOPSES OF SENTENCES. 
 
 [For Entry in Service Record.] 
 
 INSTRUCTIONS. 
 
 (See also "Instructions," Appendix 7.) 
 
 The forms for recording the synopses of sentences adjudged by 
 court-martial, as set forth below, constitute a general guide for use 
 in entering the sentences on the service record, the entries being 
 made in the following sequence in each case: 
 
 (a) Sentence as approved; (&) date of approval of sentence. 
 (These forms cover the forms for sentences given in Appendix 13.) 
 
 1. Pay for 10 days detained, /18. 
 
 2. | pay for mo. for 2 mos. detained, /18. 
 
 3> Forfeit 10 days' pay, /IS. 
 
 4. Forfeit pay per mo. for 2 mos., /18. 
 
 5. Hard labor for 5 days, /18. 
 
 6. Confrat 10 days, /18. 
 
 7. Confmt. 2 mos., /18. 
 
 8. Confmt, 2 mos. Forfeit $ pay for like period. 
 
 9. Dishon. disch., /18. 
 
 10. Dishon. disch. conf. 6 mos., A8. 
 
 11. Reduced, /18. 
 
 12. Loss of privileges of certificate of eligibility, /18w 
 
 13 and 14 omitted ; refer to officers only. 
 
 15. Restricted to limits of post for 6 mos., /18. 
 
 16 to 24 omitted; refer to officers only. 
 
 25. To be shot, /18. 
 
 26. To be hanged, /18. 
 
APPENDIX 15. 
 FORMS FOR ACTION BY REVIEWING AUTHORITY. 
 
 [For forms for sentences see Appendix 13.] 
 
 The following forms will serve as a general guide for reviewing 
 authorities in recording, in cases in which such forms are appropriate, 
 their action on sentences imposed by courts-martial. In a proper case 
 the substance of two or more of the forms may be combined. Like- 
 wise, the action as recorded may contain proper matter additional to 
 that set out in any of the several forms. 
 
 A. FORMS FOR ORIGINAL ACTION. 
 
 1 Approved and ordered executed (or disapproved) , 
 
 192. 
 
 Colonel, Infantry, Commanding. 
 
 2 Headquarters , , 192 . 
 
 Approved and ordered executed (or disapproved). 
 
 Colonel, Infantry, Commanding. 
 
 3 Approved and suspended , 192 . 
 
 Colonel, Infantry, Commanding. 
 
 4 Approved and ordered executed, but forfeiture (or confine- 
 ment) suspended, , 192 . 
 
 Colonel, Infantry, Commanding. 
 
 5 Headquarters , , 192 . 
 
 In the foregoing case of , the sentence is approved and will 
 
 be duly executed (or is disapproved). 
 
 Colonel, Infantry, Commanding. 
 
 6 Headquarters , , 192. 
 
 In the foregoing case of the sentence is approved, but owing 
 
 to the length of time the accused has been in confinement days 
 (or months) of the confinement imposed are remitted. As thus 
 modified the sentence will be duly executed. 
 
 Colonel, Infantry, Commanding. 
 
 636 
 
FORMS FOR ACTION BY REVIEWING AUTHORITY. 
 
 7 Headquarters , , 192 . 
 
 In the foregoing case of the findings of Specifications 1 and 2, 
 
 Charge II, are disapproved. The sentence is approved and will be 
 duly executed. 
 
 Colonel, Infantry, Commanding. 
 
 8 Headquarters , , 192 . 
 
 In the foregoing case of only so much of the findings of 
 
 guilty of the specification of Charge I and of Charge I as involves a 
 finding of guilty of absence without leave from to , ter- 
 minated by apprehension (or surrender) is approved. Only so much 
 
 of the sentence as provides for is approved and will be duly 
 
 executed. 
 
 Colonel, Infantry, Commanding. 
 
 9 Headquarters , , 192. 
 
 In the foregoing case of the sentence is approved, but the 
 
 execution thereof is suspended. 
 
 Colonel, Infantry, Commanding. 
 
 10 Headquarters , , 192 . 
 
 In the foregoing case of the sentence is approved, but the 
 
 execution thereof, in so far as it relates to forfeiture of pay (or to 
 confinement) is suspended. 
 
 Colonel, Infantry, Commanding. 
 
 11 Headquarters , , 192 . 
 
 In the foregoing case of the sentence is approved and will be 
 
 duly executed, but the execution of that portion thereof adjudging 
 dishonorable discharge is suspended until the soldier's release from 
 confinement. is designated as the place of confinement. 
 
 General, Commanding. 
 
 12 Headquarters , , 192. 
 
 In the foregoing case of the sentence is approved and will be 
 
 duly executed. is designated as the place of confinement. 
 
 General, Commanding. 
 
 13 Headquarters , , 192 . 
 
 In the foregoing case of it Appears from the record of trial 
 
 that the ofiicer who had subscribed the charges participated as a mem- 
 ber of the court in the findings and sentence. As such officer is prima 
 facie the accuser in the case, and as the record of trial contains noth- 
 
 21358 20 41 637 
 
APPENDIX 15. 
 
 ing to indicate that the court upon investigation arrived at a finding 
 that he was not in fact such accuser, the proceedings are, in view of 
 the provisions of the article of war, invalid. 
 
 General, Commanding. 
 
 14 Headquarters , f 192. 
 
 In the foregoing case of it appears from the record of trial 
 
 that an officer who testified as a witness for the prosecution partici- 
 pated as a member of the court in the findings and sentence. In view 
 
 of the provisions of the article of war the proceedings are 
 
 invalid. 
 
 General, Commanding. 
 
 15 Headquarters , , 192 . 
 
 To . 
 
 In the foregoing case of the sentence is approved and the 
 
 record of trial is forwarded for action under the forty-eighth article 
 of war. 
 
 General, Commanding. 
 
 16 Headquarters , , 192. 
 
 To the Judge Advocate General of the Army. 
 
 In the foregoing case of the sentence is approved, but the 
 
 execution thereof is suspended until the pleasure of the President be 
 known, and the record of trial is forwarded for action under the fifty- 
 first article of war. 
 
 General, Commanding. 
 
 17 Headquarters , , 192. 
 
 In the foregoing case of the sentence is approved and will be 
 
 duly executed at on , 192 , under the direction of the 
 
 commanding , 
 
 - General, Commanding. 
 
 18 Headquarters , , 192 . 
 
 In the foregoing case of the sentence is confirmed and will be 
 
 duly executed at on , 192 , under the direction of the 
 
 commanding . 
 
 , General, Commanding. 
 
 19 Headquarters , , 192 -. 
 
 In the foregoing case of the sentence Is approved (or -on- 
 firmed) (but the period of confinement is reduced to -). The 
 
 638 
 
FORMS FOR ORDERS VACATING SUSPENSIONS. 
 
 is designated as the place of confinement. Pursuant to the 
 
 provisions of Article of War 50 applying to this case, the execution 
 of the sentence will not be ordered until the Board of Review and the 
 Judge Advocate General shall have passed upon the legal sufficiency 
 of the record to support the sentence. 
 
 General, Commanding. 
 
 B. FORMS FOR ORDERS VACATING SUSPENSIONS. 
 
 1 Headquarters , , 192 . 
 
 So much of the order published in Court-Martial Order No. 
 
 f ^ 192 f these headquarters, , 192 (or found in a 
 
 record of trial by summary court approved , 192 ), as suspends 
 
 execution of sentence in the case of is vacated and said sen- 
 tence will be carried into execution. 
 By order of Col. ; 
 
 Adjutant. 
 
 2 Headquarters - , , 192. 
 So much of the order. published in Court-Martial Order No. 
 
 , - , 192 , these headquarters, , 192 (or found in a 
 
 r word of trial by summary court approved , 192 ), as suspends 
 
 execution of sentence to confinement (or forfeiture of pay) in the case 
 of - is vacated, and that part of said sentence will be carried 
 into execution. 
 
 By order of Col. : 
 
 Adjutant. 
 
 3 Headquarters , - , 192. 
 
 So much of the order published in General Court-Martial Order No. 
 
 , , 192, these headquarters, as suspends execution of sen- 
 tence to dishonorable discharge in the case of is vacated, and 
 
 that part of said sentence will be carried into execution. 
 By order of Col. >: 
 
 Adjutant. 
 
 639 
 
APPENDIX 16. 
 
 COURT-MARTIAL ORDERS. 
 
 A. FORM FOR GENERAL COURT-MARTIAL ORDER. 
 
 GENERAL COURT-MARTIALJHEADQUARTERS EASTERN DEPARTMENT, 
 
 ORDER No. 447. J Governors Island, N. Y., July 27, 1919. 
 
 Before a general court-martial which convened at Fort Hamilton, 
 N. Y., pursuant to paragraph 6, Special Orders, No. 93, Headquarters 
 Eastern Department, April 24, 1919, 1 as modified by paragraph 7, 
 Special Orders, No. 101, Headquarters Eastern Department, May 26, 
 1910, was arraigned and trie'd : 
 
 Private John Doe, 1,682,364, Company F, 29th Infantry. 
 
 CHARGE I : Violation of the 58th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th Infantry, 
 did at Fort Jay, N. Y., on or about March 27, 1917, desert the service 
 of the United States and did remain absent in desertion until he was 
 apprehended at Brooklyn, N. Y., on or about June 30, 1919. 
 
 CHARGE II : Violation of the 84th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th Infantry, 
 did at Fort Jay, N. Y., on or about March 27, 1917, through neglect, 
 lose one overcoat, olive drab, value $14.84, and one blanket, light 
 weight, value $3.79, issued for use in the military service. 
 
 PLEAS. 
 
 To the specification, Charge I : " Not guilty.'* 
 
 To Charge I : " Not guilty." 
 
 To the specification, Charge II : " Not guilty." 
 
 To Charge II : " Not guilty." 
 
 Or 
 
 To all the specifications and charges: "Not guilty."* 
 
 FINDINGS. 
 
 Of the specification, Charge I : " Guilty." * 
 
 Of Charge I : " Guilty." 
 
 Of the specification, Charge II : " Guilty." 
 
 Of Charge II : " Guilty." 
 
 Or 
 
 Of all the specifications and charges : " Guilty." * 
 
 1 The orders appointing the court and all orders modifying the convening 
 order will be cited. 
 
 3 Where the accused pleads guilty or not guilty to all the specifications, of 
 Is fouud guilty or not guilty of all, the form may be abbreviated as indicated, 
 
 * If a special plea has been made and sustained "by the court, the wording 
 will be : " Plea in ( '- ) sustained by the court" 
 
 C40 
 
COURT-MARTIAL ORDERS. 
 
 SENTENCE. 
 
 To be dishonorably discharged the service; to forfeit all pay and 
 allowances due, or to become due; and to be confined at hard labor 
 at such place as the reviewing authority may direct for two years. 
 (Four previous convictions considered.) 
 
 The sentence was adjudged on , 19 -. 
 
 The sentence is approved and will be duly executed. 
 
 (In cases where Article of War 50$ requires that before execution 
 of the sentence is ordered the record of trial be reviewed by the Board 
 of Review and the Judge Advocate General:) The record of trial 
 having been reviewed by the Board of Review and the Judge Advocate 
 General, as required by Article of War 50, and held legally* suffi- 
 cient to support the findings and sentence, the sentence is approved 
 and will be duly executed) ; or, from asterisk (insufficient to support 
 
 so much of the sentence as is in excess of (reciting the holding, 
 
 as the case may be), so much of the sentence is approved as does not 
 exceed .. As thus modified the sentence will be duly executed.) 
 
 The United States Disciplinary Barracks is designated as the place 
 of confinement. 
 
 By command of . 
 
 Colonel, General Staff, Chief of Staff. 
 Official. 
 
 Adjutant General, Adjutant. 
 B. FORM FOR SPECIAL COURT-MARTIAL ORDER. 
 
 SPECIAL COURT-MARTIAL! HEADQUARTERS FORT JAY, N. Y., 
 
 ORDER No. 43. J j u i y 27, 1919. 
 
 Before a special court-martial which convened at Fort Jay, N. Y., 
 pursuant to paragraph 6, Special Orders, No. 93, these headquarters, 
 April 24, 1919, as modified by paragraph 7, Special Orders, No. 101, 
 these headquarters, May 26, 1919, was arraigned and tried: 
 
 Private John Doe, Company F, 29th Infantry. 
 
 CHARGE I : Violation of the 58th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th In- 
 fantry, did at Fort Jay, N. Y., on or about March 27, 1917, desert the 
 service of the United States and did remain absent in desertion until 
 he was apprehended at Brooklyn, N. Y., on or about June 30, 1919. 
 
 CHARGE II : Violation of the 84th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th In- 
 fantry, did at Fort Jay, N. Y., on or about March 27, 1917, through 
 neglect, lose one overcoat, olive drab, value $14.84, and one blanket, 
 light weight, value $3.29, issued for use in the military service. 
 
 2 Where the accused pleads guilty or not guilty to all the specifications or is 
 found guilty or not guilty of all. the form may be abbreviated as indicated. 
 
 641 
 
APPENDIX 16. 
 
 PLEAS. 
 
 To the specification, Charge" I: " Not guilty'.** 
 
 To Charge I: "Not guilty." 
 
 To the specification, Charge II: "Not guilty.** 
 
 To Charge II : " Not guilty." 
 
 Or 
 
 To all the 'specifications arid charges: "Not guilty."' 
 
 FINDINGS. 
 
 Of the specification, Charge I: "Guilty."* 
 
 Of Charge I : " Guilty." 
 
 Of the specification, Charge II : " Guilty." 
 
 Of Charge II : " Guilty." 
 
 Or 
 
 Of all the specifications and charges : " Guilty]" * 
 
 To be confined at hard labor for six months and to forfeit two- 
 thirds of his pay per month for a like period. (Two previous con- 
 victions considered.) 
 
 The sentence is approved. 
 
 By order of -- . 
 
 Adjutant. 
 Official : 
 
 ~^ 
 Adjutant. 
 
 2 Where the accused pleads guilty or not guilty to all the specifications, or 
 is found guilty or not guilty of all/the form tnay be abbreviated aa indicated. 
 
 If a special plea lias been made and sustained by the court, the -wording 
 will be: "-Plea in - ( - ) sustained by the court." 
 
 642 
 
APPENDIX 17. 
 INTERROGATORIES AND DEPOSITION. 
 
 To be read in evidence before a 1 , United States Army, ap- 
 pointed to meet at - , by paragraph , Special Orders, No. , 
 
 Headquarters , , 191 , in the case of (in the matter 
 
 of)' . 
 
 To : 
 
 Please cause to be taken (on the interrogatories herein contained" 1 ) 
 the deposition of , to be found at . 
 
 HEADQUARTERS, , 191 . 
 
 To , 
 
 who will take or cause to be taken 4 the deposition of the person 
 named above (on the interrogatories* herein contained)* 
 
 By of 
 
 Adjutant. 
 
 First interrogatory:'' Are you in the military service of the United 
 States? If so, what is your full name, rank, organization, and station? 
 If not, what is your full name, occupation, and residence? 
 
 Answer : 9 . 
 
 Second interrogatory: . 
 
 Answer : . 
 
 First cross-interrogatory: 
 
 Answer : . 
 
 First interrogatory by the 
 Answer : . 
 
 (Witness sign here) 
 
 1 General (or special or summary) court-martial, or military commission, or 
 court of inquiry, or military board. 
 
 1 Name, rank, and organization of the accused, or other proper words identify- 
 ing the particular matter In which the deposition is desired to be used. 
 
 3 To be subscribed by the trial judge advocate or other proper person wiUi 
 his name, rank, organization, and official title, as " trial judge advocate," 
 " summary court," " recorder," etc. 
 
 * Strike out word or words not used. 
 
 * If it is desired to give special instructions, or if a travel order is necessary, 
 the remaining space will be used for the purpose. 
 
 6 If the spaces for answers are not sufficient, extra sheets may be inserted by 
 the officer taking the deposition. In such case he will rewrite the interroga- 
 tories, writing the answers immediately below the respective interrogatories. 
 
 ? If the deposition is to be taken on oral interrogatories (see pars. 174a and 
 . M. C. M.). this form will be changed accordingly. 
 
 643 
 
APPENDIX 17. 
 
 I certify that the above deposition was duly taken by me, and that 
 the above-named witness, having been first duly sworn by me, gave 
 the foregoing answers to the several interrogatories, and that he sub- 
 scribed the foregoing deposition in my presence at , this 
 
 day of , 191 . 
 
 (Name) , 
 
 (Rank and organization) 
 
 (Official character, as " summary court," "officer designated to take 
 the deposition," " notary public," etc. ) 
 
 [Back.] 
 INSTRUCTIONS. 
 
 1. Interrogatories, how submitted. (a) The party desiring the 
 deposition submits to the opposite party the interrogatories which he 
 wishes propounded to the person whose deposition he desires, and the 
 opposite party then submits to him such cross-interrogatories, if any, 
 as he may desire. Such additional direct and cross-interrogatories may 
 be submitted as desired ; or 
 
 (b) The party desiring the deposition submits to the court, military 
 commission, or board the interrogatories which he wishes propounded 
 to the person whose deposition he desires. The opposite party then 
 submits to the court, military commission, or board such cross-interrog- 
 atories, if any, as he may desire. The court, military commission, or 
 board then submits such additional interrogatories as they may deem 
 proper and desirable, and such additional direct and cross-interrog- 
 atories may be submitted as are desired ; or 
 
 (c) Where the court, military commission, or board desires that the 
 deposition of a particular person be obtained it will cause interroga- 
 tories to be prepared accordingly. The prosecution and defense (or 
 other party or parties in interest) then submit such interrogatories as 
 they may desire. Such additional interrogatories may be included as 
 are desired by the court, military commission, or board, or by a party 
 in interest. (M. C. M., par. 176.) 
 
 2. Procedure to obtain deposition on written interrogatories. (a) 
 All the interrogatories to be propounded to the person are entered 
 upon the form for interrogatories and deposition, and the trial judge 
 advocate, summary court, or recorder will take appropriate steps to 
 cause the desired deposition to be taken with the least practicable de- 
 lay. In the ordinary case he will either send the interrogatories to the 
 commanding officer of the post, recruiting station, or other military 
 command, at or nearest which the person whose deposition is desired 
 Is stationed, resides, or is understood to be, or will send them to some 
 other responsible person, preferably a person competent to administer 
 
 644 
 
INTERROGATORIES AND DEPOSITIONS. 
 
 oaths, at or near the place at which the person whose deposition Is 
 desired is understood to be. In a proper case the interrogatories may 
 be sent to the corps area or other superior commander, or to the wit- 
 ness himself, and in any case they will, when necessary, be accom- 
 panied by a proper explanatory letter. 
 
 (&) When interrogatories are received by a commanding officer he 
 will either take or cause to be taken the deposition thereon. He may 
 send an intelligent enlisted man preferably a noncommissioned officer, 
 if available to the necessary place for the purpose of obtaining the 
 deposition, or he may properly arrange by mail or otherwise that the 
 deposition be taken. The deposition will be taken with the least prac- 
 ticable delay, and when taken will be sent at once direct to the trial 
 judge advocate of the court-martial trying th case, or other proper 
 person. 
 
 (c) If the witness whose deposition is desired is a civilian, the trial 
 judge advocate, or other proper person sending interrogatories as above, 
 will inclose with them a prepared voucher for the fees and mileage of 
 the witness, leaving blank such spaces provided therein as it may be 
 necessary to leave blank, accompanied by the required number of copies 
 of the orders appointing the court, military commission, or board. The 
 trial judge advocate, summary court, or recorder will also send with the 
 interrogatories duplicate subpoena requiring the witness to appear in 
 person at a time and place to be fixed by the officer, military or civil, 
 who is to take the deposition. If the name of this officer is not known, 
 the space provided for it will be left blank. If a military officer takes 
 the deposition, he will complete the witness voucher, certify it, and 
 transmit it to the nearest disbursing finance officer for payment. 
 When the deposition is to be taken by a civil officer, he will be asked to 
 obtain and furnish to the military officer requested or designated to 
 cause the deposition to be taken the necessary data for the completion 
 of the witness voucher, and the latter will complete the voucher, 
 certify it, and transmit it to the nearest disbursing finance officer for 
 payment. In the case of a military witness, a subpoena will not accom- 
 pany the interrogatories, but the officer before whom the deposition is 
 to be taken will take the necessary steps to have the witness appear at 
 the proper time and place. (M. C. M., par. 177.) 
 
 3. Procedure to obtain deposition on oral interrogatories. Follow the 
 provisions of paragraph 181, M. C. M. 
 
 4. Payment of civilian witnesses, etc. (a) A civilian, not in Gov- 
 ernment employ, duly summoned to appear as a witness before a mili- 
 tary court, commission or board, or* at a place where his deposition is 
 to be taken for use before such military court, commission or board, 
 will receive $1.50 for each day of his actual attendance before such 
 military court, commission or board, or for the purpose of having his 
 deposition taken, and 5 cents a mile for going from his place of resi- 
 dence to the place of trial or of the taking of his deposition, and 5 
 cents a mile for returning, except as follows: 
 
 645 
 
APPENDIX 17. 
 
 (1) In Porto Rico and Cuba he will receive $1,50 a day while in 
 attendance as above stated, and 15 cents for eaca mite necessarily 
 traveled over stage line or by private conveyance, and 10 cents for 
 each mile over any railway or steamship line. 
 
 (2) In Alaska, east of the one hundred and forty-first degree of 
 west longitude, be will receive $2 a day while in attendance as above 
 stated, and 10 cents a mile; and west of said degree -$4 a day und 15 
 cents a mile. 
 
 (3) In tlic States of Wyoming, Montana, Washington, Oregon, 
 California, Nevada, Idaho, Colorado, Utah, New Mexico, and Arizona 
 he will receive $5 a day for the time of actual attendance as alvwe 
 stated, and for the time necessarily occupied in going to and return- 
 ing from the same, and 15 cents for each mile necessarily traveled 
 over any stage line or by private conveyance, and 5 cents for each 
 mile by any railway or steamship. (M. C. M., par. 185.) 
 
 (b) Civil officers before whom depositions are taken for use in 
 the military service will be paid the fees allowed by the law of the 
 place where the depositions are taken. (M. C. M., par. 181.) 
 
 5. Articles of War. 
 
 ART. 26. DEPOSITIONS BEFORE WHOM TAKEN. Depositions to be read 
 in evidence before military courts, commissions, courts of inquiry, or 
 military boards, or for other use in military administration, may be 
 taken before and authenticated by any officer, military or civil, author- 
 ized by the laws of the United States or by the laws of the place where 
 the deposition is taken to administer oaths, 
 
 ART. 114. AUTHORITY TO ADMINISTEB OATHS. Any judge advocate 
 or acting judge advocate, the president of a general or special court- 
 martial, any summary court-martial, the trial judge advocate or any 
 assistant trial judge advocate of a general or special court-martial, the 
 president or the recorder of a court of inquiry or of a military board, 
 any officer desi^aated to take a deposition, any officer detailed to con- 
 duct, an investigation, and the adjutant of any command shall have 
 power to administer oaths for the purposes of the administration of 
 military justice and for other purposes of military administration; 
 and in foreign places where the Army may be serving shall have the 
 general powers of a notary public or of a consul of the United States 
 in the administration of oaths, the execution and acknowledgment of 
 legal instruments, the attestation of documents, and all other forms 
 of notarial acts to be executed by persons subject to military law. 
 
 6. Taking depositions in foreign country. If the evidence de- 
 si rod from a witness residing in a foreign country 'is necessary and 
 material and is desired to be read before a court-martial, military 
 
 Mission, court of inquiry, or military board sitting within any of 
 the States of the Union or the District of Columbia, interrogatories 
 I :;<" > c t onapanted by the necessary vouchers for fees and mileage) will 
 ordinarily be forwarded through military channels to The Adjutant 
 General of the Army. They will then be transmitted by the Seere- 
 
 C46 
 
INTERROGATORIES AND DEPOSITIONS. 
 
 tary of War to the Secretary of State with the request that they 
 be sent to the proper consul of the United States and the deposition 
 of the witness taken. In the case of troops serving along the interna- 
 tional boundaries outside of the United States proper, or in foreign 
 countries, the officer exercising general court-martial jurisdiction 
 may, in his 'discretion, detail an officer to take the deposition of a 
 civilian witness or he may send the interrogatories direct to the 
 consul of the United States nearest the place of residence of the wit- 
 ness with the request that the deposition be taken. In the latter 
 case the interrogatories will be accompanied by the proper vouchers 
 for the fees and mileage of the witness. (M. 0. M., par, 182.) 
 
 847 
 
APPENDIX 18. 
 FORM OF REPORT OF INVESTIGATING OFFICER. 
 
 Under paragraph 76a, Manual for Courts-Martial. 
 
 Headquarters 
 
 (Place:) 
 
 (Date:) , 10. 
 
 To: 
 
 Subject: Inclosed charges. 
 
 1. I have investigated the inclosed charges, dated , 192 , 
 
 against (Private John Doe, Army Serial No. 235789, Machine Gun 
 Troop, 2nd Cavalry), in accordance with the provisions of paragraph 
 76a, Manual for Courts-Martial. I have, in the presence of the 
 accused, examined all available witnesses and documentary evidence, 
 and have reduced the material testimony given by each witness, on 
 direct examination and on cross-examination, to a clear, succinct state- 
 ment or summary which, in the presence of the accused, was read over 
 to the witness and signed by the witness and sworn to by him before 
 me. 1 Following is such summary of the material testimony given by 
 each witness. 8 
 
 Sergeant JAMES JONES, Machine Gun Troop, 2d Cavalry. 
 
 While on duty as stable sergeant, 12th May, 1920, about two o'clock, 
 I told accused, Private Doe, then working on stable police, to put out 
 the bedding hay. 
 
 About three o'clock that afternoon I missed accused. I searched fol 
 him, but could not find him ; but found that two horses were gone from 
 the corral, and two bridles were gone. I reported it to the first 
 sergeant. They were cavalry horses, Government horses, issued to Ma- 
 chine Gun Troop, 2d Cavalry, for drill purposes; and were valued at 
 $184.40 each. 
 
 CROSS-EXAMINATION. 
 
 I missed the horses about two o'clock or 2.30 in the afternoon, while I 
 was looking for the accused. I did not see the accused take them. 
 Horses sometimes get away from the troop; but I have never known 
 one to get out of the corral. 
 
 Sc/t., Machine Gun Troop, 2d Cavalry. 
 
 1 If any witness declines to sign or swear to his statement, that fact will be 
 noted. If a witness desires the statement changed before signing it, it will be 
 changed as desired. 
 
 2 For action when it is not practicable to obtain personal testimony from a 
 distant witness, see par. 76a, clause 8, M. C. M*. 
 
 C48 
 
FORM OF REPORT OF INVESTIGATING OFFICER. 
 
 First Sergeant WILLIAM K. BLACK, Machine Gun Troop, 2d Cavalry. 
 
 I was on duty as first sergeant of the Machine Gun Troop on May 12, 
 1920. I put the accused on stable police that morning. (Continue in 
 the same form as with the other witness:) 
 
 CROSS-EXAMINATION. 
 
 We knew the tracks were those of cavalry mounts by the marks of 
 the horseshoes. 
 
 1st Sgt., Machine Gun Troop, 2d Cavalry. 
 Corporal ALBERT M. YOUNG, Machine Gun Troop, 2d Cavalry. 
 (Same form as before.) 
 
 NO CROSS-EXAMINATION. 
 
 The accused " having been carefully warned by me that it was not 
 necessary for him to make any statement with reference to the charges 
 against him, but that if he did make one it might be used against him, 
 (said that he did not desire to make a statement) or (made the follow- 
 ing statement:) . 
 
 (// such be the case: " Appended is the report of examination of the 
 accused in accordance with paragraph 76c, Manual for Courts-Martial, 
 by Captain John Smith, Medical Corps.") 
 
 I have not examined any documentary evidence. 
 
 (Or, if such be the case: "The following documents have been ex- 
 amined and shown to the accused, 4 and (copies thereof) are ap- 
 pended.") 
 
 (If neither the documents nor copies of them can oe appended, then 
 list them, and state where they can be found.) 6 
 
 Evidence of two previous convictions of the accused is appended. 
 
 Explanatory or extenuating circumstances: (Here set out any such 
 circumstances which have come to the attention of the investigating 
 officer; see clause 10, par. 76a, M. C. M.) 
 
 Disposition of the case which is recommended : . 
 
 Captain, 2d Cavalry, 
 Investigating Officer* 
 
 8 The accused will not be sworn. If he makes a statement It will be read 
 over to him and he will be offered an opportunity to sign it if he so desires, but 
 will not be required to do so, and will be advised that it is not necessary for 
 him to do so. (See clause 8, par. 76a, M. C. M.) 
 
 4 See clause 8,' par. 76a, M. C. M. 
 
 6 Bulky documents or official reports will ordinarily not be appended or 
 copied, but listed and the place where they may be found stated. 
 
 While this form may be used by the investigating officer, it is to be regarded 
 as suggestive only, and not obligatory. 
 
 649 
 
APPENDIX 19. 
 SUBPGENA FOR CIVILIAN WITNESS. 
 
 The President of the United States to , greeting: 
 
 You are hereby summoned and required to be and appear in per- 
 son on the day of , 191 , at o'clock . in. 1 Ve- 
 
 f ore 1 a 1 designated to take your deposition to be read 
 
 In evidence before a * of the United States, at , appointed 
 
 to meet by paragraph , Special Orders, No. , Headquar- 
 ters - , dated , 191 , then and there to testify and give 
 
 evidence as a witness for the in the case of " , " and you 
 
 are hereby required to bring with you, to be used in evidence in said 
 
 case, the following described documents, to wit: . 
 
 And have you then and there this precept. 
 Dated at this day of , 191. 
 
 To be subscribed by trial judge 
 advocate, recorder, etc.) 
 
 The witness is requested to subscribe on one copy of the subpoena the follow- 
 ing and to return to the person serving the subpoena the copy thereof so 
 subscribed. 
 
 , -191. 
 
 I hereby accept service of the above subpoena. 
 
 Form No. 76, A. G. O. (Signature of witness.) 
 
 [Back.] 
 
 Personally appeared before me the undersigned authority, , 
 
 who, being first duly sworn according to law, deposes and says that 
 at on , 191 , he personally delivered to in per- 
 son a duplicate of the witiiin subpoena. 
 
 Subscribed and sworn to before me at this day of 
 
 , 191. 
 
 (Rank, organization, and official character.) 
 
 1 Line out when inappropriate "before , a :'.! to take 
 
 your deposition to be read in evidence." 
 
 2 When used, enter name, rank, and organization, if any. 
 
 8 When used, enter official chai^acter, if any, such as trial jud^e advocate, 
 summary court, notary public, etc. 
 
 <<i(>noral (or special, or summary) court-martial, etc. 
 
 * Enter name, etc., of accused or other subject c" investigation. 
 
 Line out when inappropriate " and you are hereby required to bring with 
 you. to be read in evidence in said case, the following described documents, 
 to wit." 
 
APPENDIX 19. 
 
 INSTRUCTIONS. 
 
 1. Articles of war. (a) Process to obtain witnesses. Every 
 trial judge advocate of a general or special court-martial and every 
 summary court-martial shall have power to issue the like process to 
 compel witnesses to appear and testify which courts of the United 
 States, having criminal jurisdiction, may lawfully issue; but such 
 process shall run to any part of the United States, its Territories, and 
 possessions. (A. W. 22.) 
 
 (b) Refusal to appear or testify. Every person not subject to mili- 
 tary law who, being duly subpoenaed to appear as a witness before 
 any military court, commission, court of inquiry, or board, or before 
 any officer, military or civil, designated to take a deposition to be 
 read in evidence before such court, commission, court of inquiry, or 
 board, willfully neglects or refuses to appear, or refuses to qualify 
 as a witness, or to testify, or produce documentary evidence which 
 such person may have been legally subpoenaed to produce, shall be 
 deemed guilty of a misdemeanor, for which such person shall be 
 punished on information in the district court of the United States or 
 in a court of original criminal jurisdiction in any of the territorial 
 possessions of the United States, jurisdiction being hereby conferred 
 upon such courts for such purpose; and it shall be the duty of the 
 United States district attorney or the officer prosecuting for the 
 Government in any such court of original criminal jurisdiction, on the 
 certification of the facts to him by the military court, commission, 
 court of inquiry, or board, to file an information against and prosecute 
 the person so offending, and the punishment of such person, on con- 
 viction, shall be a fine of not more than $500 or imprisonment not to 
 exceed six months, or both, at the discretion of the court : Provided, 
 That the fees of such witness and his mileage, at the rates allowed to 
 witnesses attending the courts of the United States, shall be duly paid 
 or tendered said witness, such amounts to be paid out of the appro- 
 priation for the compensation of witnesses; Proinded further, That 
 every person not subject to military law, who before any court-mar- 
 tial, military tribunal, or military board, or in connection with, or in 
 relation to any proceedings or investigation before it or had under any 
 of the provisions of this act, Is guilty of any of the acts made punish- 
 able as offenses against public justice by any provision of chapter G of 
 the act of March 4, 1909, entitled "An act to codify, revise, and amend 
 the penal laws of the United States" (volume 35, United States 
 Statutes at Large, page 1088), or any amendment thereof, shall be 
 punished as therein provided. (A. W. 23.) 
 
 2. Tender of fees preliminary to prosecution. In case a civilian 
 witness is duly subpoenaed under the authority of A. W. 22 and will- 
 fully neglects or refuses to appear or refuses to qualify as a witness, 
 or to testify or produce documentary evidence, which he may have 
 been legally subpoenaed to produce, he will at once be tendered or 
 
 G51 
 
APPENDIX 19. 
 
 paid by the nearest finance officer one day's fees and mileage for 
 the journeys to and from the court, and will thereupon be again called 
 upon to comply with the requirements of the law. Upon failing the 
 second time to comply with the requirements of the law, a complete 
 report of the case will be made to the officer exercising general court- 
 martial jurisdiction over the command with a view to presenting the 
 facts to the Department of Justice for the punitive action contem- 
 plated in A. W. 23. (M. C. M. 172.) 
 
 3. Civilians not in Government employ. A civilian not in Govern- 
 ment employ, duly summoned to appear as a witness before a mili- 
 tary court, commission, or board, or at a place where his deposition 
 is to be taken for use before such court, commission, or board, will 
 receive $1.50 for each day of his actual attendance before such court, 
 commission, or board, or for the purpose of having his deposition taken, 
 and 5 cents a mile for going from his place of residence to the place 
 of trial or of the taking of his deposition, and 5 cents a mile for 
 returning, except as follows: 
 
 (a) In Porto Rico and Cuba he will receive $1.50 a day while in 
 attendance, as above stated, and 15 cents for each mile necessarily 
 traveled over stage line or by private conveyance, and 10 cents for 
 each mile over any railway or steamship line. 
 
 (&) In Alaska east of the one hundred and forty-first degree of 
 west longitude he will receive $2 a day while in attendance as above 
 stated and 10 cents a mile, and west of said degree $4 a day and 15 
 cents a mile. 
 
 (c) In the States of Wyoming, Montana, Washington, Oregon, Cali- 
 fornia, Nevada, Idaho, Colorado, Utah, New Mexico, and Arizona, he will 
 receive $5 a day for the time of actual attendance as above stated and 
 for the time necessarily occupied in going to and returning from the 
 same, and 15 cents for each mile necessarily traveled over any stage 
 line or by private conveyance, and 5 cents for each mile by any railway 
 or steamship. (M. C. M., par. 185.) 
 
 [NOTE. 1. Travel must be estimated by the shortest usually traveled route 
 by established lines of railroad, stage, or steamer the time occupied to be 
 determined by the official schedules, reasonable allowance being made for un- 
 avoidable detention. 
 
 2. These rates apply to the Philippine Islands. (See Cir. 45, A. G. O., 1902.) 
 
 3. A civilian not in Government employ, when furnished transportation on 
 transport or other Government conveyance, is entitled to 57.142 per cent of 5 
 cents per mile (equal to 2.857 cents per mile). (Comp. Dec., Aug. 20, 1902, pub- 
 lished in Cir. 45, A. G. O., 1902.)] 
 
 4. Civilians in Government employ. Civilians in the employ of the 
 Government when traveling upon summons as witnesses before mili- 
 tary courts are entitled to transportation in kind from their place of 
 residence to the place where the court is in session and return. If no 
 transportation be furnished, they are entitled to reimbursement of the 
 cost of travel actually performed by the shortest usually traveled 
 route, including transfers to and from railway stations at rates not 
 
 652 
 
SUBPOENA FOR CIVILIAN WITNESS. 
 
 exceeding 50 cents for each transfer, and the cost of sleeping-car 
 accommodations to which entitled or steamer berth when an extra 
 charge is made therefor. They are also entitled to reimbursement >f 
 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 attend- 
 ance upon the court under the order or summons. No allowance will be 
 made to them when attendance upon court does not require them to 
 leave their stations. (M. C. M. t par. 184.) 
 
 21358 20 42 
 
 653 
 
APPENDIX 20. 
 WARRANT OF ATTACHMENT. 
 
 UNITED STATES] 
 
 I 
 
 The President of the United States to , greeting: 
 
 WHEREAS , of , was on the day of , 192 , 
 
 at , duly subpoenaed to appear and attend at , on the 
 
 day of , 192 , at o'clock m., before a 
 
 court-martial duly appointed by paragraph , Special Orders, No. , 
 
 dated Headquarters , , 192 , to testify on the part of the 
 
 in the above-entitled case ; and whereas he has failed to appear 
 
 and attend before said court-martial to testify, as by said 
 
 subpoena required, and whereas he is a necessary and material wit- 
 ness in behalf of the in the above-entitled case : 
 
 Now, THEREFORE, by virtue of the power vested in me, the under- 
 signed, as trial judge advocate of 1 said court-martial, by arti- 
 cle 22 of Chapter II of an act entitled "An act to amend an act 
 entitled 'An act for making further and more effectual provision for 
 the national defense, and for other purposes,' approved June 3, 1916, 
 and to establish military justice," approved June 4, 1920 (41 Stat 
 787), you are hereby commanded and empowered to apprehend and 
 
 attach the said wherever he may be found within the United 
 
 States, its Territories, or possessions, and forthwith bring him before 
 
 the said court-martial at to testify as required by said 
 
 subpoena. 
 
 "~~ 
 
 Trial Judge Advocate of said Court-Martial.' 
 
 Dated , 
 
 , 191 
 
 * If a summary court-martial, line out the words " trial Judge advocate of." 
 
 * If a summary court-martial, line out and substitute the necessary words. 
 
 654 
 
APPENDIX 21. 
 
 EXEMPTIONS FROM THE JURISDICTION OF SPE- 
 CIAL AND SUMMARY COURTS-MARTIAL. 
 
 GENERAL OEDEBS, "I WAR DEPARTMENT, 
 
 No. 71. Washington, December 1, 1920. 
 
 By direction of the President, under authority of the thirteenth and 
 fourteenth articles of war, Chapter II, section 1, act of Congress ap- 
 proved June 4, 1920, the following regulations exempting certain 
 classes of persons from the jurisdiction of special and summary 
 courts-martial, are published to the Army for the information and 
 guidance of all concerned : 
 
 1. Effective February 4, 1921, the following classes of persons are 
 excepted from the jurisdiction of special courts-martial : Officers, 
 members of the Army Nurse Corps, warrant officers, Army field clerks, 
 field clerks Quartermaster Corps, and cadets. 
 
 2. Effective February 4, 1921, the following classes of persons are 
 excepted from the jurisdiction of summary courts-martial : Noncom- 
 missioned officers above the rank of corporal ; that is, enlisted men of 
 a grade higher than the " fifth grade," as defined by section I, General 
 Orders, No. 36, War Department, 1920. 
 
 3. Noncommissioned officers sentenced to reduction will be reduced 
 to the grade of private, and not to the grade of private, first class. 
 
 (250.4, A. G. O.) 
 By order of the Secretary of War: 
 
 PEYTON C. MARCH, 
 Major General, Chief of Staff. 
 Official : 
 
 P. C. HARRIS, 
 
 The Adjutant General. 
 
APPENDIX 22. 
 
 FORM A. 
 
 HABEAS CORPUS BY UNITED STATES COURT (WHERE A WITNESS 
 IS HELD UNDER A WARRANT OF ATTACHMENT). 
 
 RETURN TO WRIT. 
 
 In re (name of party held). 
 
 (Writ of habeas corpus Return of respondent.) 
 
 To the (court or judge) : 
 
 The respondent, Maj. , United States 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, pursuant to 
 
 a warrant of attachment issued under Chapter II, act of June 4, 1920, 
 twenty-second Article of War, by a trial judge advocate of a lawfully 
 convened general (or "special") court-martial (or "by a summary 
 court-martial " ) and duly directed to him, the said respondent, for exe- 
 cution ; that he is diligently and in good faith engaged in executing said 
 warrant of attachment, and that he respectfully submits the same for 
 the inspection of the court, together with the original subpoena and 
 proof of service of the same, a copy 1 of the order appointing the court- 
 martial, sworn to as such, before which the said has 
 
 been subpoenaed to testify, a copy of the charges and specifications in 
 
 the case, sworn to as such, in which said is a witness, 
 
 a copy of the order referring the case to the court for trial, sworn to 
 
 as such, and an affidavit of showing that said 
 
 is a material witness in the case; that he has failed to appear 
 
 and has offered no valid excuse for such failure. 
 
 In obedience, however, to the said writ of Jialeas corpus the re- 
 spondent herewith produces before the court the body of the said 
 , and for the reasons set forth in this return prays this 
 honorable court to dismiss the said writ. 
 
 Major, United States Infantry. 
 
 Dated - , , 
 
 , 192. 
 
 1 The copy of the order appointing the court and of the charges, and of the 
 order referring the case for trial, will be sworn to by the triat judge advocate 
 (or summary court-martial) before an officer authorized to administer oaths. 
 
 656 
 
FORMS. 
 FORM B. 
 
 HABEAS CORPUS BY STATE COURT (WHERE WITNESS IS HELD 
 UNDER A WARRANT OF ATTACHMENT). 
 
 RETURN TO WRIT. 
 
 (Make return as in case of writ by a United States court, supra, 
 Form A, except as to the last paragraph, for which substitute as 
 follows:) 
 
 And said respondent further makes return that he has not produced 
 
 the body of the said , because he holds him by authority 
 
 of the United States as above set forth, and that this court (or " your 
 honor," as the case may be) is without jurisdiction in the premises, 
 and he respectfully refers to the decisions of the Supreme Court of the 
 United States in Ableman v. Booth, 21 Howard, 506, and Tarble's case, 
 13 Wallace, 397, as authority for his action, and prays this court (or 
 "your honor.") to dismiss the writ. 
 
 Major, United States Infantry. 
 
 Dated , , 
 
 FORM C. 
 
 HABEAS CORPUS BY UNITED STATES COURT (WHERE PRISONER 
 IS HELD FOR TRIAL OR UNDER SENTENCE). 
 
 RETURN TO WRIT. 
 
 In re (name of party held). 
 
 (Writ of habeas corpus Return of respondent.) 
 
 To the (court or judge) : 
 
 The respondent, Maj. , United States 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 gen- 
 eral court-martial " ) under the following circumstances : 
 
 That the said was duly enlisted as a soldier in the 
 
 service of the United States at , , on , 192, 
 
 for a term of years. (If the offense is fraudulent enlistment, 
 
 this recital should be omitted.) 
 
 (Here state the offense. If it is fraudulent enlistment by represent- 
 ing himself to be of the required age, it may be stated as follows:) 
 
 That on the - - day of , 192, at , the said 
 
 , being under 18 years of age, did fraudulently enlist in the mili- 
 
 657 
 
APPENDIX 22. 
 
 tary service of the United States for the term of years, by 
 
 falsely representing himself to be over 18 years of age, to wit, 
 
 years and months ; and has, since said enlistment, received pay 
 
 and allowances (or either) thereunder. 
 
 (If the offense be desertion, it may ~be stated substantially as 
 follows:) 
 
 That the said deserted said service at , , 
 
 on , 192 , and remained absent in desertion until he was 
 
 apprehended at - , , on , 192 , by - 
 
 , and was thereupon committed to the custody of the respondent 
 as commanding officer of the post of . 
 
 The said has been placed in confinement (or " arrest," 
 
 as the case may be), and formal charges have been preferred against 
 him for said offense, a copy of which charges, and of the order under 
 
 which said is held in confinement (or "arrest," as the 
 
 case may be), duly certified and verified,* are hereto annexed; and 
 that he will be brought to trial thereon as soon as practicable before 
 a court-niartial, to be convened by the commanding general of the 
 - Department (or "convened by Special Orders, No. , dated 
 Headquarters - Department, 192 , a copy of which, duly certi- 
 fied and verified, 8 is herein annexed"). 
 
 (If the party held is f a general prisoner, the folloiving 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, 192 , was convicted thereof 
 
 by said court, and was sentenced to be , which sentence was duly 
 
 approved on the day of , 192 , by the officer ordering the 
 
 court (or " by the officer commanding said Department for the 
 
 time being " ) as required by the article of war. A copy of the 
 order promulgating said sentence, duly certified and verified, 2 is hereto 
 attached. 
 
 1 The copies of the charges and of the order under which the accused is held 
 in arrest, or confinement, will be certified by the adjutant and sworn to before 
 an officer authorized to administer oaths for military administration, in the 
 following form : 
 
 I hereby certify that the foregoing is a full and true copy of the original 
 
 charges preferred against , and of the original order for his 
 
 arrest (or " confinement," aa the case may be), and that the same are in the 
 usual form of military charges, and that such charges and order conform to 
 the rules regulating military procedure, 
 
 , Adjutant. 
 
 Sworn to and subscribed before me this day of , 192 . 
 
 Trial Judge Advocate of Court-Martial 
 
 (Or "Summary Court-Martial"). 
 
 The copy of the order convening the court or publishing the sentence will be 
 certified and verified in a similar manner. 
 
FORMS. 
 
 In obedience, however, to the said writ of habeas corpus the respond- 
 ent herewith produces before the court the body of the said 
 
 , respectfully refers to the decisions cited in the annexed brief 
 
 (if the case does not involve a minor under the required age the words 
 " respectfully refers to the decisions cited in the annexed brief *' will 
 be omitted), and for the reasons set forth in this return prays this 
 honorable court to dismiss the said writ 
 
 United States Infantry. 
 Dated 
 
 FORM D. 
 
 HABEAS CORPUS BY STATE COURT (WHERE PRISONER IS HELD 
 FOR TRIAL OR UNDER SENTENCE). 
 
 BETUBN TO WRIT. 
 
 (Make return as in case a writ by a United States court, except as to 
 last paragraph, for which substitute the paragraph set out in Form B, 
 Appendix 22.) 
 
 INSTRUCTIONS AS TO RETUENS TO WRITS OF HABEAS CORPUS. 
 
 The following instructions in regard to returns under A. R. 998 and 
 999, in the cases of soldiers who have committed military offenses and 
 are held for trial or punishment therefor, and of general prisoners, are 
 for the information and guidance of all concerned : 
 
 1. The return under A. R. 999 will be made in accordance with Form 
 C (Appendix 22), and if the person whose release is sought has com- 
 mitted the offense of fraudulent enlistment by representing himself to 
 be of the required age, 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 report to The Adjutant General 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 A. R. 998 will be made in accordance with Form 
 D (Appendix 22), but a copy of the brief of authorities is not intended 
 to be attached to the returns to writs of habeas corpus issuing from a 
 State court. 
 
 C59 
 
APPENDIX 22. 
 
 BRIEF TO BE FILED WITH A RETURN TO A WRIT OF 
 HABEAS CORPUS ISSUED BY A UNITED STATES COURT 
 IN THE CASE OF A SOLDIER WHOSE DISCHARGE IS 
 SOUGHT ON THE GROUND OF MINORITY. 
 
 Tiie right to avoid the contract of enlistment of a soldier on the 
 ground of minority will be considered under the following heads: L 
 Under the common law ; II. Under the statutes ; III. Where the minor 
 is held for punishment. 
 
 I. 
 
 UNDER THE COMMON LAW. 
 
 The enlistment of a minor is not avoidable by the minor nor by his 
 parent or guardian at common law, but is only avoidable where the 
 right to avoid it is conferred by statute. 
 
 This proposition is clearly established by the decision of the Supreme 
 Court (In re Morrissey, 137 U. S., 157, 159), where the court said : 
 
 An enlistment is not a contract only, but effects a change of 
 status. ( Grimley's case, 137 U. S., 147. ) It is not, therefore, like 
 an ordinary contract, voidable by the infant. At common law 
 an enlistment was not voidable either by the infant or by his 
 parents or guardians. 
 
 The court cites, in support of these statements, Rex v. Rotherfield 
 Greys (1 Barn. & Cress., 345, 350; 8 Eng. C. L., 149) ; Rex v. Lytchet 
 Hatraverse (7 Barn. & Cress., 226, 231; 14 Eng. C. L., 107; Common- 
 wealth v. Gamble (11 Serg. & Rawle (Pa. R), 93) ; U. S. v. Blakeney 
 (3 Grattan, 387, 405.) 
 
 In Rex v. Rotherfield Greys, supra, it was said by Best, J. : 
 
 By the general policy of the law of England the parental au- 
 thority continues until the child attains the age of twenty-one 
 years ; but the same policy also requires that a minor shall be 
 at liberty to contract an engagement to serve the State. When 
 such an engagement is contracted it becomes inconsistent with 
 the duty which he owes to the public that the parental authority 
 should continue. The parental authority, however, is suspended, 
 but not destroyed. When the reason for its suspension ceases 
 the parental authority returns. 
 
 In Rex v. Lytchet Hatraverse, supra, Bayley, J., after quoting these 
 views of Best, J., says : 
 
 Lawrence, J., in Rex v. Roach (6 T. R., 254), seems to take the 
 same view of the subject and to consider the authority of the 
 State paramount to that of the parent so long as the minor con- 
 tinues in the public service, but as soon as he leaves it then the 
 parental authority is restored. 
 
 It is clear from these authorities and others which could be cited 
 that at common law the enlistment of a minor of sufficient capacity 
 to bear arms was valid regardless of age. The right of the State to the 
 services of such minors is forcefully laid down in Lanahan v. Biroe 
 (30 Conn., 438). See also Cooley's Constitutional Law, page 99, where 
 
 G60 
 
FORMS. 
 
 on the authority of Ex parte Broivn (5 Crunch, C. C., 554; Fed. Cas., 
 No. 1972), and United States v. Bainbridge (1 Mason, 71; Fed. Gas., 
 No. 14497), it is said: 
 
 Minors may be enlisted without the consent of their parents 
 or guardians when the law fails to require such consent. 
 
 II. 
 
 UNDER THE STATUTES. 
 
 The pertinent statutes are the following : 
 
 SEC. 1116, R. S. Recruits enlisting in the Army must be ef- 
 fective and able-bodied men, and between the ages of sixteen 
 and thirty-five years at the time of their enlistment. This limi- 
 tation as to age shall not apply to soldiers reenlisted. 
 
 This section was modified by the act of March 2, 1899 (30 Stat, 978), 
 which provides : 
 
 That the limits of age for original enlistments in the Army 
 shall be eighteen and thirty-five years : 
 
 and again modified by section 7 of the selective draft act of May 18, 
 1917 (40 Stat., 76, 81), and by Chapter XIII of the Army appropriation 
 act of July 9, 1918, providing : 
 
 That the qualifications and conditions for voluntary enlist- 
 ment as herein provided shall be the same as those prescribed by 
 existing law, for enlistments in the Regular Army, except that 
 recruits for service in the staff corps and departments may be 
 accepted who are between the ages of forty-one and fifty-five 
 years, both inclusive, at the time of their enlistment, and that 
 all other recruits must be between the ages of eighteen and forty 
 years, both inclusive, at the time of their enlistment. 
 
 SEC. 1117, R. S. No person under the age of twenty-one years 
 shall be enlisted or mustered into the military service of the 
 United States without the written consent of his parents or 
 guardians: Provided, That such minor has such parents or 
 guardians entitled to his custody and control. 
 
 This section is replaced by the provision of section 27, national de- 
 fense act of June 3, 1916 (39 Stat., 186), which reenacts it in the same 
 words, substituting the age of 18 years for the age of 21. 
 
 SEC. 1118, R. S. No minor under the age of sixteen years, no 
 insane or intoxicated person, no deserter from the military 
 service of the United States, and no person who has been con- 
 victed of a felony shall be enlisted or mustered into the military 
 service. 
 
 This proviso was not changed by the Army reorganization act of 
 June 4, 1920, which struck out of section 27 of the national defense 
 act (see 41 Stat. 775) only the first part of the section, up to and in- 
 cluding the third proviso, but did not affect the proviso (fifth proviso) 
 here in question. 
 
 1. The statutes confer no right upon the minor to avoid his enlist- 
 ment, certainly not if he be 16 years of age or over. No case has been 
 found directly in point holding that a minor under 16 years of aye, if 
 of sufficient capacity to bear arms, may avoid his enlistment. 
 
 661 
 
APPENDIX 22. 
 
 Section 1116, R. S., as amended, prescribing the age limits of original 
 enlistment, was made for the benefit of the Government, and not the 
 minor. (In re Morrissey, 137 U. S., 157 ; In re Grimley, 137 U. S., 147 ; 
 In re Wall, 8 Fed. Rep., 85 ; In re Davison, 21 Fed. Rep., 618 ; In re 
 Zimmerman, 30 Fed. Rep., 176 ; In re Spencer, 40 Fed. Rep., 149 ; In re 
 Lawler, 40 Fed. Rep., 233; Solomon v. Davenport, 87 Fed. Rep., 318; 
 Wagner v. Gibbon, 24 Fed. Rep., 135.) 
 
 Section 1117, R. S., as amended, while recognizing the right of the 
 parent to the services of the minor, confers no right in the minor to 
 avoid his enlistment See the cases cited above. 
 
 In the Morrissey case the Supreme Court of the United States said 
 that the provision of section 1116, R. S., 
 
 is for the benefit of the parent or guardian * * * but it gives 
 no privilege to the minor * * * an enlistment is not a con- 
 tract 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 con- 
 cerned. He was not only de facto but de jure a soldier amen- 
 able to military jurisdiction. 
 
 Whether the designation of the age limit of 16 years in section 1118, 
 R. S., is such as to make the enlistment of the minor under 16 years of 
 age void or voidable by the minor has not been decided. On principle, 
 the minor, if of sufficient capacity to render military service, should 
 not be permitted to avoid his enlistment obtained through his fraudu- 
 lent statements as to his age. However this may be, if the minor con- 
 tinued to serve and receive pay after passing that age he 
 
 acquires the status of a soldier like one who was enlisted when 
 over 16 years without the consent of his parents, and a court- 
 martial has jurisdiction to try and sentence him to punishment 
 for desertion, from which sentence he can not be discharged on 
 habeas corpus on petition of himself or his parents. (Ex parte 
 Hubbard, 182 Fed. Rep., 76.) 
 
 2. The statutes requiring the consent of the parent or guardian of 
 a minor to his enlistment (section 1117, R. S., amended by section 27, 
 act of June 3, 1916) impliedly confer upon the parent or guardian the 
 right to avoid an enlistment entered into by a minor under the pre- 
 scribed age 'without the required consent, where the minor is not held 
 for trial or punishment for a military offense. 
 
 In support of this proposition see the cases cited under II, propo- 
 sition 1. 
 
 3. A parent or guardian with knoioledge of the enlistment of a minor 
 under the prescribed age and acquiescing therein for a considerable 
 period, may be held to be estopped from asserting the right to avoid 
 the enlistment. 
 
 In support of this proposition see Ex parte Dunakin (202 Fed. Rep., 
 290), where it was held, quoting from the syllabi: 
 
 Where a minor enlisted without the consent of his parent or 
 guardian, and his mother, who was his surviving parent, on 
 
 662 
 
FORMS. 
 
 learning of his enlistment shortly thereafter, did nothing to 
 repudiate the same or to secure his release, and testified that 
 she would have been reconciled to it had he remained in the 
 Army and not deserted, hut that after his desertion she wanted 
 to keep him out of the Army, her acts constituted an implied 
 consent to his enlistment. 
 
 4. A minor fraudulently enlisting and remaining in the service after 
 alii.tining the legal age of enlistment, or the age beyond which parental 
 consent is not required, thereby validates his enlistment. 
 
 In support of this proposition see the case of Ex parte Ilubbard (182 
 Fed. Rep., 76), where the court held, quoting the syllabus: 
 
 A minor enlisted in the Army when under the age of 16, who 
 has continued to serve and receive pay after passing that age, 
 acquires the status of a soldier like one who was enlisted when 
 over 16 without the consent of his parents, and a court-martial 
 has jurisdiction to try and sentence him to punishment for 
 desertion, from which sentence he can not be discharged on 
 habeas corpus on petition of himself or Ms parents. 
 
 III. 
 
 WHERE THE MINOR IS HELD FOR PUNISHMENT. 
 
 Neither the minor nor his parent nor guardian may avoid the 
 enlistment where the soldier is held for trial or under sentence for a 
 military offense. 
 
 In support of this proposition see the cases cited above under II, 
 proposition 1, and also the following: In re Kaufman (41 Fed. Rep., 
 876) ; In re Dohrendorf (40 Fed. Rep., 148) ; In re Cosenow (37 Fed. 
 Rep., 668) ; In re Dowd (90 Fed. Rep., 718) ; In re Miller (114 Fed. 
 Rep., 838) ; United States v. Reaves, (126 Fed. Rep., 127) ; In re Les- 
 sard (134 Fed. Rep., 305) ; Ex parte Anderson (16 Iowa, 595) ; McCon- 
 ologues case (107 Mass., 154, 170) ; In re Carver (142 Fed. Rep., 623) ; 
 lit' re Scott (144 Fed. Rep., 79) ; DilUngham v. Booker (163 Fed. 
 Rep., 696) ; Ex parte Rock (171 Fed. Rep., 240) ; Ex parte Hubbard 
 (182 Fed. Rep., 76) ; Ex parte Lewkowitz (163 Fed. Rep., 646) ; 
 United States v. Williford <220 Fed. Rep., 291). 
 
 The reasons given for these decisions are that the enlistment of a 
 minor in the Army without the consent of his parent or guardian 
 required by section 1117, R. S., " is not void, but voidable only " ; that 
 the soldier being not only de facto but de jure a soldier, he is subject 
 to the Articles of War and may commit a military offense ; and that if 
 held for trial or punishment for a military offense, the interests of 
 the public in the administration of justice are paramount to the 
 right of the parent or guardian, and require that the soldier abide 
 the consequences of his offense before the question of his discharge 
 will be considered by the court. In the Miller case (114 Fed. Rep., 
 842), the court supported its holding by the analogy of a minor held 
 for punishment for a civil offense, saying: 
 
 663 
 
APPENDIX 22. 
 
 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 custody and his immunity when 
 he was held by an officer of a civil court of competent jurisdic- 
 tion to answer a charge of crime. His enlistment having made 
 the prisoner a soldier notwithstanding his minority, he is 
 amenable to the military law just as the citizen who is a minor 
 is amenable to the civil law. The parents can not prevent the 
 law's enforcement in either case * * *. 
 
 The views here cited were approved in the Reaves case (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 custody of the naval authorities as represented by the 
 chief of police who had apprehended him. In the Carver case (142 
 Fed. Rep., 623), the syllabus is as follows: 
 
 A minor under the age of 18 years who unlawfully enlisted 
 in the Army without the consent of his father can not be dis- 
 charged from the service on a writ of habeas corpus sued out 
 by his father so long as he is under arrest for desertion nor 
 until he has been discharged from such custody or has served 
 the sentence imposed on him by the military tribunal. 
 
 In the Lewkmvitz case (163 Fed. Rep., 646), the syllabus reads: 
 
 A minor who by misrepresenting his age has fraudulently en- 
 listed in the Army without the consent of his parents and 
 thereby subjected himself to punishment under military law will 
 not be relieved from such punishment by the civil courts by 
 discharging him on a writ of habeas corpus on the application 
 of his parents, even though the military prosecution is not 
 instituted until after the writ was issued. 
 
 This was followed by the unanimous opinion in the Circuit Court 
 of Apeals in the Love case (United States v. Williford, 220 Fed. Rep., 
 291), in which the court expressly approved the view stated in the 
 Lewkowitz case, quoting section 761, R. S., relating to procedure under 
 writs of habeas corpus, which reads as follows : 
 
 The court, or justice, or judge shall proceed in a summary 
 way to determine the facts of the case by hearing the testi- 
 mony and arguments and thereupon to dispose of the party as 
 law and justice require. 
 
 The court added : 
 
 Law and justice do not, in our opinion, require Love to be 
 withdrawn from the military authorities and relieved of liabil- 
 ity for his offense in favor of his mother's right to his custody. 
 
 By act of July 27, 1892 (27 Stat., 278), " fraudulent enlistment and 
 the receipt of pay or allowance thereunder " was made a military 
 offense, punishable under the sixty-second article of war. The offense 
 is now defined in article 54, revised Articles of War, approved June 
 4, 1920 (41 Stat., 800), which provides that the offense "shall be 
 punished as a court-martial may direct." A minor who procures his 
 
 G64 
 
FORMS. 
 
 enlistment by willful misrepresentation or concealment as to his quali- 
 fications for enlistment 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. 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 misdemeanor, even though 
 his confinement may interfere with the rights of his parents; and the 
 above authorities clearly apply the same rule to a minor held for trial 
 or punishment for a military offense. 
 
 665 
 
WAE DEPARTMENT, - 
 Form No. 338. 
 
 APPENDIX 23. 
 
 [Sheet 1.] 
 WAR DEPARTMENT. 
 
 PUBLIC VOUCHER. 
 
 COMPENSATION, CIVILIAN WITNESS. 
 Appropriation: Pay, etc., oj the Army, 192 
 
 THE UNITED STATES To , DR. 
 
 Address: 
 
 2 5 
 
 I I 
 
 o 
 
 Object 
 Symbol. 
 
 Amount. 
 
 U. S. 
 
 notations. 
 
 For mileage as a witness from to and 
 
 return, being miles, at cents per mile. . 
 
 For allowance as a witness while in attendance 
 
 On a court-martial at 
 
 Giving deposition at for use before a court- 
 martial from ,191 ,to ,191 , as per 
 
 certificate hereon, days, at $ per day 
 
 TOTAL 
 
 I CERTIFY that, as stated above, I attended as a witness for the period named, 
 and as such the travel between the places named was required. 
 
 (PAYEE) 
 
 (Do not sign in duplicate.) 
 
 EXAMINED 
 
 (Account to be completely filled in before certification, and no alteration or erasure to be 
 
 made thereafter.) 
 
 1 CERTIFY that , a civilian not in Government employ, 
 
 has been in attendance from , 191 , to , 191 . 
 
 ias a material witness before a court-martial duly ] 
 convened at this place, giving deposition for use of a I and 
 court-martial convened under attached orders, 
 that he was duly summoned thereto from M , , and waa 
 
 666 
 
FORMS. 
 
 not furnished transportation by the Government for any portion of the 
 
 journey. 
 
 PLACE, 
 
 DATE, , 191 
 
 (Title.) 
 
 Paid by check No , dated ,191 , of 
 
 on , in favor of payee named above for $ 
 
 OR 
 
 Received , 191 , of , IN CASH, the sum of 
 
 dollars and cents, in full payment of the above account. 
 
 $ 
 
 ( Thisjorm to be used only for payment of civilian witnesses not vn Government 
 
 employ.} 
 
WAR DEPARTMENT. 
 Form No. 338. 
 
 APPENDIX 23. 
 
 (Sheet 2.] 
 WAR DEPARTMENT. 
 
 PUBLIC VOUCHER. 
 
 COMPENSATION, CIVILIAN WITNESS. 
 
 Appropriation: Pay, etc., of the Army, 192 . & g, j 
 
 THE UNITED STATES, To , DR. '" 5 
 
 Address: e 
 
 Amount. __j 
 
 For mileage as a witness from to and 
 
 return, being miles, at cents per mile 
 
 For allowance as a witness while in attendance 
 
 On a court-martial at 
 
 Giving deposition at . . .for use before a court-martial 
 
 from ,191 ,to ,191 ,asper 
 
 certificate hereon, days, at $ per day.. 
 
 TOTAL 
 
 EXAMINED 
 BY 
 
 MEMORANDUM VOUCHER. 
 (To be filled in and retained by paying officer.) 
 
 Voucher certified by 
 
 Voucher approved by 
 
 Paid by check No , dated , 191 , of 
 
 on , in favor of payee named above for $ 
 
 OR 
 
 Paid in cash by dollars and cents 
 
 (Date.) 
 
 Funds derived from check No on 
 
 $.. 
 
 (This form to be. used only for payment of civilian witnesses not in Government 
 
 employ.) 
 
 668 
 
WAR DEPARTMENT. 
 
 Form No. 350. 
 
 A pproved by Comptroller of 
 Treasury July 25, 1919. 
 
 APPENDIX 24. 
 
 [Sheet 1.] 
 WAR DEPARTMENT. 
 
 PUBLIC VOUCHER. 
 
 REIMBURSEMENT OF TRAVEL EXPENSES. 
 
 Appropriation: Item No $ 
 
 Appropriation: Item No $ 
 
 Appropriation: Item No $ 
 
 THE UNITED STATES To , DR. 
 
 Address: . . 
 
 FOE REIMBURSEMENT OF TRAVEL EXPENSES incurred in the dis- 
 charge of official duty from , 19. ., to , 
 
 19- ., under written authorization from the , dated 
 
 , 19.., a copy of which is as per item- 
 ized statement on reverse hereof 
 
 AMOUNT CLAIMED, 
 
 DIFFER- 
 ENCES. 
 
 I DO SOLEMNLY * that the above account and EXAMINED BY 
 
 statement on reverse hereof are true and correct; that the 
 
 distances as charged have been actually and necessarily 
 
 traveled by me on the dates therein specified; that the 
 
 amounts as charged have been actually paid by me for 
 
 travel expenses; that no part of the account has been paid by the United 
 
 States, and the full amount is due; that all expenditures included in said 
 
 account other than my own personal travel expenses were made under 
 
 urgent and unforeseen public necessity, and that it was not, for the reasons 
 
 stated herein, feasible to have such expenditures paid directly by a 
 
 disbursing officer. 
 
 (PAYEE) 
 
 (Do not sign in duplicate.) 
 
 Subscribed and f 
 
 day of 
 
 to before me at 
 
 , A.D.19, 
 
 ., this 
 
 * Swear or affirm. 
 
 t Sworn to or affirmed. 
 
 21358 20 43 
 
 6G9 
 
APPENDIX 24. 
 
 I CERTIFY that the person rendering this account was traveling on public 
 business under proper authority, for the period covered by this account; 
 that I believe the expenses were necessarily incurred and paid as stated ; 
 and that I have examined the account which is hereby approved for $ 
 
 "("Title.")" 
 Paid by check No , dated , 19.., for $ 
 
 OR 
 
 Received , 19.., of in CASH, the sum 
 
 (Date.) 
 
 of dollars and cents, in full payment of the above account. 
 
 (Do not sign in duplicate.) 
 [Reverse side of sheet 1.] 
 
 Date, 19 Statement of expenditures. voucher No - Ajnount ' Differences 
 
 TOTAL, S 
 
 T - - -"-'- r--- 
 
 MEMORANDUM OF TRAVEL PERFORMED UPON TRANSPORTATION 
 
 REQUESTS. 
 
 No. of 
 
 From To Via R. R. Amount. Differences, 
 
 request. 
 
 670 
 
FORMS. 
 
 [Sheet 2.] 
 
 WA^M^RTMENT WAR DEPARTMENT. 
 
 Approved by Comptroller of 
 
 Treasury July 25, 1919. 
 
 PUBLIC VOUCHER. ^ , 
 
 REIMBURSEMENT OF TRAVEL EXPENSES. e 
 
 Appropriation: Item No $ .... i ' 
 
 Appropriation: Item No $ .... 
 
 Appropriation: Item No $ . 
 
 THE UNITED STATES To , DR. 
 
 Address : 
 
 For reimbursement of travel expenses incurred in the discharge of DIFFER- 
 
 official duty from ,19.., to ,19.., under 
 
 written authorization from the , dated , 
 
 19 . ., a copy of which is as per itemized statement on 
 
 reverse hereof 
 
 TOTAL, S 
 
 MEMORANDUM VOUCHER. EXAMINED 
 
 BY 
 
 (To be filled in and retained by paying officer.) 
 
 Voucher certified by 
 
 Voucher approved by 
 
 Paid by check No , dated , 19. ., for $ 
 
 OR 
 
 Paid in cash by , 
 
 (Date) 
 
 dollars and . , . . cents. 
 
 671 
 
APPENDIX 24. 
 (Reverse side of Sheet ?.) 
 
 Date, 
 19.... 
 
 Statement of expenditures. 
 
 Sub- 
 voucher 
 No. 
 
 Amount. 
 
 Differences. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 TOTAL, $ 
 
 
 : 
 
 
 
 
 
 MEMORANDUM OF TRAVEL PERFORMED UPON TRANSPORTATION 
 
 REQUESTS. 
 
 Date of 
 travel. 
 
 No. of 
 trans- 
 portation 
 request. 
 
 From 
 
 To 
 
 ViaR. R. 
 
 Amount. 
 
 Differences. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 672 
 
APPENDIX 25. 
 
 [Sheet 1.] 
 
 /TAR DEPARTMENT 
 
 Form 335. 
 
 Approved by Comptroller of Treasury 
 July 25, 1919. 
 
 WAR DEPARTMENT. 
 PUBLIC VOUCHER. 
 
 PEESONAL SEEVICES. 
 
 Appropriation: Item No $.... 
 
 Appropriation: Item No $ 
 
 THE UNITED STATES To , DR. 
 
 Address : 
 
 Desi 
 Dis 
 
 mp 
 tion, 
 
 sing 
 
 Date. 
 
 From To 
 
 Character of services. 
 
 Num- 
 ber of 
 days. 
 
 Rate. 
 
 Amount. 
 
 For. 
 
 Under authority of. 
 
 Dated ,19 
 
 Per attached certified statement, Form 
 335a, which is hereby made a part of this 
 voucher whenever used. 
 
 Less deduction for 
 
 NET AMOUNT OF THIS VOUCHER. 
 
 I CERTIFY that the above bill is true and correct, and that payment thereof 
 has not been received, or (that I am not related to the patient named on certifi- 
 
 cate;. 
 
 EXAMINED 
 
 BY 
 
 (Do not sign in duplicate.) . 
 
 673 
 
APPENDIX 25. 
 
 I CERTIFY that was employed by me as a reporter 
 
 for a , under the attached authority, and that the 
 
 account for his services as stated is correct. 
 
 (Official title.) 
 
 APPROVED for $ 
 
 (Title.) 
 
 Other certificates not appliea- 
 Date , 19 ble to reporter are omitted . 
 
 Paid by check No , dated , 19.., for $ 
 
 OR 
 
 Received , 19.., of , in CASH, the sum 
 
 of dollars and cents, in full payment of the above account. 
 
 (Do not sign in duplicate.') 
 * 
 
 674 
 
FORMS. 
 
 WAR DEPARTMENT. 
 Form 335. 
 
 (Sheet 2.) 
 
 Approved by Comptroller of Treasury 
 July 25, 1919 
 
 WAR DEPARTMENT, 
 
 PUBLIC VOUCHER. 
 
 PERSONAL SERVICES. 
 
 lation: Item No $ . 
 
 Item No $.. 
 
 THE UNITED STATES To , DR. 
 
 Address: . 
 
 5 
 
 f|I 
 n ! I 
 
 o 
 c 
 
 o 
 
 Date. 
 
 Fr om 
 
 Character of services. 
 
 Num- 
 ber of 
 days. 
 
 Rate. 
 
 Amount. 
 
 For 
 
 Under authority of. 
 
 Dated ,19.... 
 
 Per attached certified statement, Form 
 
 335a, which is hereby made a part of tbjs 
 
 voucher whenever used. 
 Less deduction for. . . . 
 
 NET AMOUNT OF THIS VOUCHER. 
 
 MEMORANDUM VOUCHER. 
 
 (To be filled in and retained by paying officer.) 
 
 Voucher certified by.. 
 Voucher approved by. 
 
 EXAMINED BY 
 
 Paid by check No , dated , 19 , for$ 
 
 673 
 
APPENDIX 25. 
 
 WAR DEPARTMENT , 
 Form 335-A. 
 
 Approved by Comptroller of Treasury 
 July 25, 1919. 
 
 WAR DEPARTMENT. 
 STATEMENT OF PERSONAL SERVICES. 
 
 
 RENDE1 
 
 THE UNIT* 
 
 IED AS SHOWN IN DETAIL BELOW. 
 :D STATES To , DR. 
 
 o 
 
 
 
 (i) 
 Date. 
 
 (2) 
 
 Character of services 
 rendered. 
 
 (3) 
 
 To whom rendered. 
 Disease or disability. 
 
 (4) 
 Rate. 
 
 (5) 
 Amount. 
 
 From 
 19 
 
 To 
 19 
 
 
 
 
 
 
 
 
 
 
 
 (This statement must be completely made out by payee before certification 
 and attached to voucher. There must be no alteration or erasure.} 
 
 I CERTIFY that the above statement is true and correct, and that the 
 amounts are the customary charges and not excessive. 
 
 See reverse side for information. 
 
 INSTRUCTIONS FOR PREPARING STATEMENT ON FORM 335-A. 
 
 This statement must be made in duplicate, showing in detail 
 Column 1. Inclusive dates of sarvices. 
 
 Column 2. To whom the services were rendered, giving rank, com- 
 pany, regiment, or organization, where necessary. 
 Column 3. Character of services. If for medical attendance of any 
 kind, or nursing, state necessity for such services, 
 also kind of disease or disability; if for clerical, tech- 
 nical, or professional services, state classification; if 
 for court reporting, give number of hours or number 
 of words in hundreds. 
 Column 4. Rate of pay for services when on per diem basis; per 
 
 hour or per hundred words if for official reporter. 
 Column 5. Total amount of compensation. 
 
 If this voucher is for payment of reward for apprehension and delivery of 
 deserter or escaped military prisoner, so state in column 2, and give full 
 name of deserter or escaped prisoner, also company, regiment, or organiza- 
 tion in column 3. 
 
 676 
 
APPENDIX 26. 
 REPORT OF INQUEST. 
 
 summary court-martial. 
 
 To : Commanding officer. 
 
 Subject : Report of inquest over body of , deceased. 
 
 1. Pursuant to your letter (or, your oral instructions) of , I 
 
 viewed on the - day of , the body of - , found dead 
 
 at this post, and have examined the following witnesses, whose testi- 
 mony is appended to this report : 
 
 2. From a view of the body and from the evidence before me I find 
 
 that at or about m., on the day of (or, on or about 
 
 the day of ) . , a of , Regiment 
 
 of (or, a civilian), died a natural death (or, committed sui- 
 cide ; or, was accidentally killed in manner and circumstances as fol- 
 lows ; or, was killed by or by some person or persons unknown, 
 in manner and circumstances as follows: (or otherwise, as the case 
 may be). 
 
 677 
 
APPENDIX 27. 
 
 IRREGULARITIES AND ERRORS IN COURT- 
 MARTIAL TRIALS. 
 
 The following list of irregularities and errors in records of proceed- 
 ings before courts-martial is not intended to be complete or exhaustive. 
 It is appended for the purpose of pointing out those irregularities and 
 errors that have been most common, and of specifically warning 
 against them. Most of the irregularities and errors contained in this 
 list result from carelessness or oversight. No attempt has been made 
 to classify them. Some of them are not serious ; but they should not 
 occur. 
 
 I. The record is not accompanied by the order referring the case to 
 the court for trial. 
 
 2. The record shows that the accused was tried by a different court 
 from that to which the case was referred by the convening authority. 
 
 3. No report of investigation of the charges accompanies the record. 
 
 4. Charge sheet missing. 
 
 5. Allotments not entered on charge sheet. 
 
 6. Record not briefed on back as required by Appendix 10, M. C. M. 
 
 7. Index incomplete or not in proper form. 
 
 8. Army serial number of accused omitted. 
 
 9. Variance between Army serial number of accused as shown in the 
 charge sheet and as shown in the record of trial. 
 
 10. Variance in initials or names of members of the court, the trial 
 judge advocate, assistant trial judge advocate, defense counsel, 
 assistant defense counsel, or witnesses, in different parts of the record. 
 
 II. The record shows that an officer who had officially recommended 
 that the accused be tried by court-martial sat as a member of the court 
 by which the accused was tried. 
 
 12. The record shows that an officer who subscribed the charges sat 
 as a member of the court by which the accused was tried. 
 
 13. The record shows that a member of the court who testified as a 
 witness for the prosecution continued to sit as a member of the court. 
 
 14. Variance in rank of members of the court shown in different 
 parts of the record, without any copy of, or reference to, any order 
 showing changes in rank. 
 
 15. The record does not show that the accused was informed of his 
 right to demand a copy of the record of his trial, or that he was asked 
 whether or not he desired a copy thereof. 
 
 16. No receipt of the accused for a copy of the record of trial, or 
 affidavit of delivery of it to him, is appended to the record. 
 
 678 
 
ERRORS IN COURT-MARTIAL TRIAL. 
 
 17. The record does not show that a member of the court who was 
 challenged withdrew when the vote on the challenge was taken by 
 the court. 
 
 18. The record does not show that the order appointing the court and 
 each amendatory order was read to the accused. 
 
 19. The record does not affirmatively show that the accused was 
 afforded the right to challenge each member of the court (including his 
 right to one peremptory challenge). 
 
 20. The record shows that an officer sat as a member of the court 
 without apparent authority, i. e., the record contains no order detailing 
 him as such. 
 
 21. The record does not show that all members of the court, the trial 
 judge advocate, the assistant trial judge advocate, the reporter, and 
 the interpreter were sworn. 
 
 22. Offenses charged under wrong Articles of War. 
 
 23. One or more specifications constitute unnecessary duplication of 
 charges. 
 
 24. The name of the person signing the charges is not shown by the 
 record. 
 
 25. The oath to the charges is not copied into the record. 
 
 26. The grade and organization of the person signing the charges are 
 not shown by the record. 
 
 27. The words " officer preferring charge," or " by order of " a com- 
 manding officer, or other unnecessary or prohibited words, are used in 
 connection with the signature of the person signing the charges. 
 
 28. The record does not show that the accused entered a separate 
 plea to each charge and specification. 
 
 29. The pleas of the accused are irregular in form, e. g., " not guilty 
 of desertion, but guilty of absence without leave." 
 
 30. The record does not show that the accused was properly or 
 sufficiently instructed in regard to the effect of a plea of guilty and the 
 maximum penalty for the offenses charged. 
 
 31. In a proper case, i. e., one in which the accused makes a state- 
 ment inconsistent with his plea of guilty, or qualifies his plea of 
 guilty, the record does not show that the court ordered the accused's 
 plea of guilty changed to a plea of not guilty. 
 
 32. The record does not show that the paragraphs of the Manual for 
 Courts-Martial that set out the gist of the offense or offenses charged 
 against the accused were read to the court by the trial judge advocate ; 
 or does not specifically show which paragraphs or parts of paragraphs 
 were read ; or shows that the wrong paragraphs were read. 
 
 33. The record fails to show that each witness was sworn. 
 
 34. The record does not show that, before testifying, each witness 
 for the prosecution was required by the trial judge advocate to 
 identify the accused, as required by paragraph 250, M. C. M. 
 
 35. The record fails to show that the accused is a person subject to 
 military law. 
 
 G79 
 
APPENDIX 27. 
 
 36. The record shows that a witness was recalled and permitted to 
 testify without being reminded that he was still under oath. 
 
 37. Clearly improper evidence admitted by the court, e. g., the ad- 
 mission of a confession without proper foundation, or the admission 
 of a deposition in a capital case. 
 
 38. The record does not show that the court ruled on an objection 
 to evidence. 
 
 39. The record fails to show that the law member (or the president 
 of the court) explained to the accused his rights as a witness; or that 
 he did so properly. 
 
 40. The record does not show that the prosecution rested. 
 
 41. The record shows that the trial judge advocate made use of 
 improper argument, e. g., that he commented upon the failure of the 
 accused to testify in his own behalf. 
 
 42. The record does not show that the court made any findings 
 upon one or more of the charges or specifications. 
 
 43. The findings of the court are not in proper form, e. g., "not 
 guilty of desertion, but guilty of absence without leave." 
 
 44. The record shows that evidence concerning previous convic- 
 tions of the accused was read to the court before the court's find- 
 ings were made. 
 
 45. Although the trial judge advocate was present at the trial, the 
 record is authenticated by the assistant trial judge advocate, and con- 
 tains no statement that the trial judge advocate could not authenti- 
 cate the record on account of his death, disability, or absence. 
 
 46. Interlineations or corrections in the record are not initialed by 
 the trial judge advocate or by the person by whom they were made. 
 
 47. Exhibits missing from record. 
 
 48. A specification is incomplete or legally insufficient because of the 
 omission of some necessary allegation, e. g., the allegation that the 
 act described was committed unlawfully or feloniously, or because 
 it does not allege every essential element of the offense sought to be 
 charged. 
 
 49. The record fails to show that the accused had (1) no evidence 
 (or no further evidence) to offer, or (2) no statement (or further 
 statement) to make, or (3) no argument (or further argument) to 
 offer. 
 
 NOTE. This appendix should be included in the courses of instruction in 
 the Manual for Courts-Martial at officers' schools. 
 
 C80 
 
INDEX. 
 
 [References are to paragraphs, except that the letter " p " Indicates page, 
 "A. W. ' indicates Articles of War, and " App." indicates Appendix.] 
 
 It being impossible to index every paragraph In every possible logical place, 
 the Index aims to be as specific as possible. Consult, therefore, the more 
 specific heads e. g., for Depositions, look under " Depositions," and not under 
 " Evidence." 
 
 Abandoned property. (See Property.) 
 
 Abandoning or delivering up command : Par. 
 
 Analysis and proof of offenses 425, p. 377 ; A. W. 75 
 
 Definitions and principles 425, p. 378 
 
 Forms for specifications App. 6 
 
 Abandonment of wife and children: 
 
 Wife may testify against husband accused of 228 
 
 Abatement, pleas in. (See Pleas.) 
 
 Abbreviations used in Manual for Courts-Martial xxvii 
 
 Absence : 
 
 Of appointing authority, who may act during 369 ; A. W. 46 
 
 Of area or department commander for any considerable 
 
 period, effect 18 
 
 Of member of court-martial 
 
 Excuse, report 85 
 
 Procedure upon his return 93 
 
 Absence with leave: 
 
 Of area or department commander, effect on appointing 
 
 powers 18 
 
 When converted into absence without leave because of civil 
 arrest 412 
 
 Absence without leave (see also Desertion) : 
 
 Analysis and proof of offense 412 ; A. W 7 . 61 
 
 As joint offense, proof necessary 69 
 
 Definitions and principles 412 
 
 Finding of, on charge of misbehavior before enemy 300 
 
 Forms for specifications App. 6 (26-28) 
 
 Ignorance of detail as defense for not reporting 283 
 
 Interrupts execution of sentence 401 
 
 Method of finding or pleading, on charge of desertion 298 
 
 Methods of proof of, enumerated 284 
 
 Morning report, entries in, as proof of 284 
 
 No statutory intent described in A. W. 61 nor to be alleged. 281 
 
 Periods of 24 hours equal 1 day 412 
 
 Presumption of continuance and of intent 284 
 
 Proof of, establishes corpus delicti of desertion 225 (c) 
 
 Routine duties missed during, not separately punishable 66 
 
 Time lost to be made good 38(note) ; A. W. 107 
 
 Trial for desertion after trial for 149(3) (e) 
 
 681 
 
682 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page. 
 " A. W." indicates Articles of War, ana " App." indicates Appendix.] 
 
 Par. 
 
 Abuse, defined 438 
 
 Accomplice (see also Conspiracy) : 
 
 Acts and statements, when admissible against each other_ 217, 224 
 
 Confession as ground for pardon or milder punishment 216 
 
 Must first waive his privilege before testifying 217 
 
 Nolle prosequi, to secure testimony of 217 (notes) 
 
 Account, books of: 
 
 Use; conditions, refreshing recollection, authentication, 
 
 originals 244 
 
 Accounts, proof of 237 
 
 Accouterments. (See Military property.) 
 
 Accused. (See also generally throughout index the more spe- 
 cific titles) : 
 
 Army serial number should be adduced at trial p. 605 (22) ; 
 
 p. 621 (note 7) 
 Arrest. (See Arrest.) 
 
 As witness for self, failure to take stand can not be com- 
 mented on 214 (c) 
 
 As witness for self, noted in record 357 (b) (28) 
 
 As witness for self, scope of cross-examination 214 
 
 As witness for self, status like any other witness 214 (a) 262 
 
 As witness for self, statute permitting cited 214 
 
 Asked as to desire to have defense counsel act 108 
 
 Character of. (See Character evidence.) 
 
 Charges. (See Charges.) 
 
 Civil authorities, delivery to; when required, penalty 
 
 for refusal 35, 424 ; A. W. 74 
 
 Confession. (See Confessions.) 
 Confinement. (See Confinement.) 
 
 Confronted with witnesses, when to be 165 ; A. W. 25 
 
 Considerations respecting, in determining place of con- 
 finement 342, 342a 
 
 Copy of record for; inquiry, receipt 117, 366 (b) 
 
 Counsel. (See Counsel; Defense counsel.) 
 
 Court-martial has no control of person of, except in 
 
 its presence 47(c),87 
 
 Cross-examination of witnesses, opportunity for, noted 
 
 in record 357 (b) (30) 
 
 Examination by medical board, when proper 76c 
 
 Explanation to, of right to testify or make state- 
 ment 215, 357 (b) ; (34) ; App. 9, p. 610 
 
 Freedom of expression in statement to court 291 
 
 How described in charge and specification 74 (b) (h) (i) 
 
 Identification 
 
 Care requisite; specific modes enumerated 250 
 
 Elements, care if disputed 223 (a) 
 
INDEX. 683 
 
 f References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Accused Continued. 
 
 Identification Continued. Par. 
 
 Prior to trial by witness of greatest value 223 (a) 
 
 Questions by trial judge advocate to establish p. 605 (22) 
 
 Informing court as to member being accuser or witness 129 
 
 Insanity. (See Insanity, etc., of accused.) 
 
 Interviews with counsel permitted 110 
 
 Investigation of charges, rights upon, in general 76a 
 
 Irons, not ordinarily to be tried in 88 
 
 Officer having custody or command responsible for 47(b,c) 
 
 Pleas. (See Pleas.) 
 
 Presence at open sessions to be shown in record 85, 357 (b) (11) 
 
 Presence or absence at proceedings in revision 352, 357 (b) (11) 
 
 Procedure where not testifying or making statement- 215 ; App. 6 
 
 Refusal to plead, procedure 155 ; A. W. 21 
 
 Self-crimination. (See Self -crimination.) 
 
 Trial judge advocate has no control of person of 47 (b) 
 
 Uniform to be worn at court 82 
 
 Where seated in court 83 
 
 Witnesses requested by, duties of defense counsel 161 
 
 Accuser : 
 
 Challenge, ground for 121,125 
 
 Convening authority as ; discussed, as defense, procedure- 17, 22 
 Convening authority of general or special court can not be_ 14, 21 
 
 Counsel for, should be allowed in court of inquiry 463 
 
 Form for affidavit on charge sheet App. 5, p. 561 
 
 Ineligible as member of general or specaal court-mar- 
 tial 6(a), 129; A.W.8,9 
 
 Member as ; ineligible, making fact known, excuse. 129 ; A. W. 8, 9 
 
 Member as, question of fact ; invalidity of proceedings 130 
 
 Member signing and swearing to charges; procedure 130 
 
 Trial judge advocate as, relief 102 
 
 Where only officer present with command, as summary 
 court 6 (a) ; A. W. 10 
 
 Acquittal: 
 
 Announcement in open court 332a 
 
 At close of prosecution's case ; procedure 158c 
 
 Former, for same offense, how proved 274 
 
 General principles applicable to findings 297 
 
 *' Guilty without criminality " equivalent to 303 
 
 Joint changes ; procedure where also conviction 301 
 
 Nolle prosequi is not equivalent to 158 
 
 Not a " sentence " nor approved, confirmed, or disapproved- 372 (b) 
 On lack of requisite number of votes required for conviction 294 
 
 Privilege of self -crimination ceases upon 233 (a) 
 
 Record, general and special courts-martial 357 (b) (46), 358 
 
 Record, summary court-martial 351 (i). 363 
 
 Release from confinement or arrest upon 332a, 371 
 
 Return of record for reconsideration prohibited- 352, 372 ; A. W. 40 
 
684 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Acting judge advocate : 
 
 Oaths for administrative purposes may be administered Par. 
 
 by 138 (b ); A.W. 114 
 
 Powers of notary public or consul in foreign places where 
 Army serving 138 (b) ; A. W. 114 
 
 Action by reviewing authority. (See Reviewing authority.) 
 
 Additional charges defined; when tried separately; when tried 
 
 with original charges 73 
 
 Adjournment of court-martial : 
 
 Duties of trial judge advocate during or at close of trial App. 8 
 
 Power of general or special court-martial to adjourn 81 
 
 Records of general and special courts to show 357 (b) (52) 
 
 Adjutant of a command : 
 
 Oaths for administrative purposes may be administered 
 
 by 138 (b) ; A. W. 114 
 
 Powers of notary public or consul in foreign places where 
 Army serving 138 (b) ; A. W. 114 
 
 Adjutant General, The. (See The Adjutant General, reports to.) 
 
 Admission against interest (see also Confessions) : 
 
 Distinguished from confession; examples 226 
 
 On statement of accused, how far considered 292 
 
 Admonition : 
 
 As disciplinary punishment, proper 333 ; A. W. 104 
 
 By president of court-martial to members 86 
 
 Legal sentence for officer 310 
 
 Advising desertion : 
 
 Analysis and proof of offense 410 ; A. W. 59 
 
 Capital offense in time of war; any other punishment in 
 
 peace 41 ; A. W. 59 
 
 Definitions and principles 410 
 
 Forms for specifications App. 6(23) 
 
 Lesser included offense in desertion 377 
 
 Aero squadron, when a detachment for disciplinary purposes 28 
 
 Affidavit (see also Oath) : 
 
 Not admissible as deposition unless expressly consented to_ 269 
 Person making in general court-martial charges named in 
 
 record 357(b) (19) 
 
 To charges and specifications ; who may administer ; form, 
 
 75, 75 (note) ; A. W. 70 ; App. 5, p. 561 
 
 To charges, copied into record 64 
 
 To charges, forms on charge sheet App. 5, p. 561 
 
 Affinity as ground for challenge 121 
 
 Affirmation (see also Oath) : 
 
 Closing sentence of adjuration in oath omitted in 132 ; A. W. 19 
 
 Oath includes, where affirmation authorized in lieu of 
 oath 443, p. 434 
 
INDEX. 685 
 
 [References are to paragraph^ except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Affray, lesser included offenses ; assault and breach of peace 377 
 
 Agreement, fraudulent. (See Conspiracy.) 
 
 Aider of defective specification 158a 
 
 Aiding desertion. (See Assisting desertion.) 
 
 Alaska : 
 
 Double jeopardy rule in 149 (3) (d) 
 
 Fees and mileage of civilian witnesses in 185 (b) 
 
 Trial in either civil or military court in, bar to trial in 
 other for same offense _ 149(3) (d) 
 
 Alias, how pleaded 74 (i) 
 
 Allotments : 
 
 Compulsory (Class A) may not be detained or forfeited 311 
 
 Voluntary (Class B) may not be detained or forfeited 811 
 
 Alternative pleading improper 74 (c) 
 
 Ammunition :. 
 
 Casting away ; offense stated, proof 425, p. 380; A. W. 75 
 
 Casting away ; form for specification : App. 6(57) 
 
 Wasting of, offense stated, proof 434 ; A. W. 84 
 
 Wasting of, form for specification App. 6(74) 
 
 Ammunition train, when a detachment for disciplinary pur- 
 poses 28 
 
 Amnesty (see also Pardon) : 
 
 Evidence of, as basis of plea in bar ; how offered, other evi- 
 dence 273 
 
 Privilege against self-crimination ceasing on 233 (a) 
 
 Appeal : 
 
 From courts-martial to civil courts not permitted 33, 33a 
 
 From disciplinary punishment ; effect, contents, procedure. 833, 
 
 335 ; A. W. 104 
 From disciplinary punishment ; no witnesses heard 335 
 
 Appointing authority (see also Reviewing authority). 
 
 Absence of law member, can direct to proceed in 85 
 
 Action as to offenders against laws of community 35 
 
 Adding to membership of general court-martial 7 (a) (notel) 
 
 Appointment of law member 81, 89 (a) ; A. W. 8 
 
 Appointment of medical board ; action thereon 76c 
 
 Appointment of trial judge advocate, defense counsel, and 
 
 their assistants 81 
 
 Arrest of officer without charges, report to 50 
 
 As " accuser " or " prosecutor " ; discussed, as defense, pro- 
 cedure 17, 22 
 
 Authority to add members to general court-martial- 7 (a) (note 3) 
 
 Authority to add members to special court-martial 7(b) 
 
 Change of membership of court during trial, power of 93 
 
 Consults staff judge advocate on questions raised by trial 
 
 judge advocate 158d 
 
 21358 20 44 
 
686 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates r 
 "A. W." indicates Articles of War, and " App." iudicat.es Appendix.] 
 
 Appointing authority Continued. rr. 
 
 Continuances, authority for, may be asked of 139 
 
 Designates first time and place of courts-martial 81 
 
 Duration of power to appoint general courts-martial 18 
 
 Final decision on availability of military counsel 108 
 
 For courts of inquiry 447-449; A. W. <> 7 
 
 For general courts-martial, who may be 14-16 ; A. W. 8 
 
 For special courts-martial, who. may be 21; A. W. 9 
 
 For summary courts-martial, who may be 25 ; A. W. 10 
 
 Insanity, etc., of accused raised at trial, duties 219 
 
 Judicial notice of orders appointing special or summary 
 
 courts 289 
 
 Limitation on powers over courts-martial 20 
 
 May refer any case to a special court-martial ; purpose of 
 
 article 41a ; A. W. 12 
 
 Membership of general court should be an odd number 7 (a) 
 
 (notel) 
 
 Membership of general court usually kept near mini- 
 mum : 7(a) (notel) 
 
 Power dependent on command or duty, not rank 18, 19, 23 
 
 Rank, may order trial by juniors to accused in__ 12 (a) ; A. W. 16 
 
 Records of general court-martial, how disposed of by 367 (a) 
 
 Records of general or special court forwarded to 366 (a) 
 
 Records of special courts-martial, how disposed of by 367 (b) 
 
 Records, receipt, or affidavit as to delivery to accused for- 
 warded to 866 (b) 
 
 Selection of best qualified officers for courts-martial. 6(c) ; A. W. 4 
 
 Use of term for " reviewing authority " 369 
 
 Variance, directions as to continuing case showing 158b 
 
 Appointing orders, judicial notice of 14 (notel) 
 
 Apprehension of accused persons, duty of commanding officer 
 
 in aid of civil authorities ; penalty for refusal 424 ; A. W. 74 
 
 Appropriation of property. ( See Property. ) 
 
 Approval of sentence. (See Sentence.) 
 
 Approving authority (see also Confirming authority; Reviewing 
 authority). 
 
 Power to confirm sentence "378 ; A. W. 49 
 
 Review of cases under A. W. 50$, duties in connection with. 399a 
 
 Area, corps. (See Corps area.) 
 
 Arguments to court: 
 
 By accused, trial judge advocate and counsel for accused 293 
 
 Freedom of expression; limitations 291 
 
 Statements of the accused 290-292 
 
 Trial judge advocate may open and close ; answer by de- 
 fense 293 
 
 Written by counsel for accused In absence of reporter ill 
 
INDEX. 687 
 
 r References are to paragraph*, except that the letter "p" indicates pa go, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Arizona, fees and mileage of civilian witnesses in 185 
 
 Arms : 
 
 Casting away, offense stated, proof 425, p. 380 ; A. W. 75 
 
 Casting away; form for specification . App. 6(74) 
 
 Army, judicial notice of organization, circulars, orders, location 
 
 of posts, troops, etc 289 
 
 Army (tactical), commanding officer may appoint general court- 
 martial 14 ; A. W. 8 
 
 Army areas, commanding officer without power to confirm sen- 
 
 tonces under A. W. 48 378 (notel) 
 
 Army corps, commanding officer may appoint general court-mar- 
 tial, 14 ; A. W. 8 
 
 Army field clerks. (See Field clerks Army and Quartermaster 
 
 Corps. ) 
 Army Nurse Corps, member of : 
 
 A. W. 55, 56, 67, and 75 not applicable to ; A. W. 96 proper 
 
 for such offenses 406, 407, 418, 425, p. 380 
 
 Compensation as reporter of court-martial, etc., not allowed- 113 (f) 
 Excepted from jurisdiction of special and summary courts- 
 martial by G. O. 71, W. D. 1920 p. 656 
 
 False muster, etc. ; A. W. 56 not applicable to 407 
 
 Misbehavior before enemy ; A. W. 75 not applicable to 425 
 
 Mutiny or sedition, not suppressing, etc., under A. W. 96 
 
 and not A. W. 67 418 (note) 
 
 Not eligible for courts-martial 6(c) 
 
 Not subject to summary court-martial 43 ; A. W. 14 
 
 Officer but not commissioned officer; use of term. 4 (note 2), 6(c) 
 
 Power to quell frays, disorders, etc. ; penalty 419 ; A. W. 63 
 
 Previous conviction, three-year limitation on introduction 
 
 of 306 
 
 Sentences legal for, enumerated 310a 
 
 Subject to Articles of War 4 (a) ; A. W.2(a) 
 
 Unlawful enlistment, etc. ; A. W. 55 not applicable to 406 
 
 Army Regulations : 
 
 A source of military law 2(d) 
 
 Judicial notice of 289 
 
 Military person presumed to know 282 
 
 Army serial number, identification of accused by p. 605(22), 
 
 p. 621 (note 7) 
 Ai raignment : 
 
 Defined ; procedure 144 
 
 Follows organization of court 143 
 
 Plea. (See Pleas.) 
 
 Time of, on additional charges 73 
 
688 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Arrest (see also Confinement) : Par. 
 
 Accused persons not to be placed in ; exceptions 46 (a) ; A. W. 69 
 
 Breach 
 
 Analysis and proof of offense 420 ; A. W. 69 
 
 Definitions and principles of offense 420 
 
 Forms for specifications App. 6(44) 
 
 Offense same before or after trial or sentence- 46 (b) , 420 ; A. W. 69 
 Punishment for officer or cadet, for others 40, 420 ; A. W. 69 
 Commanding officers only may place officers in, except 
 
 under A. W. 68 47 (a) 
 
 Court-martial has no control over nature of accused's 47 (c) 
 
 Defense counsel not subject to, by court or president 89 
 
 Disobedience of order into ; penalty 419 ; A. W. 68 
 
 Disobedience of order into; form for specification App. 6(43) 
 
 Distinguished from confinement 420 
 
 Jurisdiction of court-martial not affected by accused not 
 
 being in 46 (note) 
 
 Limits of ; punishment for breach 46 ; A, W. 69 
 
 Limits of restriction upon 40 ; A. W. 69 
 
 Of deserter 
 
 Authority of citizen 59 
 
 Authority of civil officer 58 ; A. W. 106 
 
 Of officer 
 
 By subordinate, when taking part in frays, etc 419 ; A. W. 68 
 
 How executed 48 
 
 Only by commanding officer, except under A. W. 68 47 (a) 
 
 Procedure where no charges preferred 50 
 
 Status in arrest, applications and requests in writing 49 
 
 Of soldier- 
 By noncommissioned officers, purpose, limitations 52 
 
 How effected 52 
 
 Only on order of officer ; exceptions 52 
 
 Release after trial, when required 332a, 371 
 
 Release from, and restoration to duty ; not ground for cer- 
 tain pleas 152 (c) ; A. W. 70 
 
 Status of officer in 49 
 
 Status of warrant or noncommissioned officer in 53 
 
 Trial judge advocate not subject to, by court or president 89 
 
 Trial judge advocate without authority to order 47 (b) 
 
 Who may order 47 
 
 Arson : 
 
 Burning and destruction of buildings not subject of, how 
 
 punishable 446, p. 465 
 
 Burning other building than dwelling house, punishable 
 
 under A. W. 96 443, p. 417 
 
 Definition and principles, proof, penalty 443, p. 416 ; A. W. 93 
 
INDEX. 689 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Arson Continued. Par. 
 
 Drunkenness not strictly a defense 285 
 
 Forms for specifications App. 6 (96) 
 
 Limitation of three years 149(2) 
 
 Articles of War: 
 
 Set out in full and indexed, see Appendix 1. " 
 
 A. W. 2, 23, 45, effective June 4, 1920 486 ; App. 1 
 
 As source of military law 2(d) 
 
 Certain read to enlisted men 282 ; A. W. 110 
 
 Effect of failing to read prescribed articles to enlisted men 
 
 discussed 282 
 
 Effective, except three, February 4, 1921 486 ; App. 1 
 
 Exact words followed in charges, if practicable 74 (p) 
 
 National Guard, applicable to, upon draft into service 4 (a) 
 
 (note d) ; App. 2 
 
 Offenses against, how charged 74 (p) 
 
 Persons subject to, enumerated 4 ; A. W. 2 
 
 Persons subject to naval jurisdiction not usually subject 
 
 to 4 (d) (note); A.W.2 
 
 Rules of evidence in, as binding 198 
 
 Specific article used where possible, not general article 74 (e) 
 
 Substitution of general or other specific article for article 
 named in charges ___ 300 
 
 Assault : 
 
 (See also the specific Jcinds of assault indexed immediately 
 'below.') 
 
 Defined ; examples 443, p. 440 ; A. W. 93 
 
 Forms for specifications App. 6 (108,109,138,139) 
 
 Lesser included offense in affray 377 
 
 Lesser included offense in assault with intent to murder, 
 
 rape, robbery 300, 377 
 
 Assault and battery : 
 
 Assault included in battery 377 
 
 Battery defined; examples 443, p. 442 ; 446, p. 464 
 
 Disorderly conduct consisting in not to be treated as 
 
 separate offense 66 
 
 Drunkenness not strictly a defense 285 
 
 Felonious assault, a lesser included offense in murder 377 
 
 Lesser included offense in murder, mayhem, rape, robbery 377 
 
 Assault with intent to commit any felony : 
 
 Definitions and principles _ 443, p. 439 ; A. W. 93 
 
 Limitation of three years 149(2) 
 
 Assault with intent to commit manslaughter : 
 
 Definitions and principles 443, p. 444 
 
 Limitation of three years 149(2) 
 
090 INDEX, 
 
 [Deferences arc to paragraphs, except that the letter "p" indicates 
 "A. W." indicates Articles f War, and " App." indicate* Appendix.] 
 
 Assault with intent to commit murder: Par. 
 
 Definitions and principles ; proof 443, p. 443 
 
 Limitation of three years 149(2) 
 
 Minor degrees of assault included in 377 
 
 Assault with intent to commit rape : 
 
 Definitions and principles 443, p. 444 
 
 Limitation of three years 149(2) 
 
 Assault with intent to commit sodomy: 
 
 Definitions ; specific intent required 443, p. 445 
 
 Limitation of three years 149(2) 
 
 Assault with intent to do bodily harm: 
 
 Definitions and principles : proof 443, p. 447 
 
 Evidence of similar act, example when inadmissible 206(4) 
 
 Lesser included offense in murder, mayhem 377 
 
 Limitation of three years 149(2) 
 
 Assault with intent to do bodily harm with a dangerous weapon, 
 etc.: 
 
 Definitions and principles ; proof 443, p. 447 ; A. W. 93 
 
 Limitation of three years 149(2) 
 
 Assault with intent to rob : 
 
 Definition ; defense, proof 443, p. 445 ; A. W. 93 
 
 Limitation of three years 149(2) 
 
 Assaulting superior officer : 
 
 Analysis and proof of offense 415 ; A. W. 64 
 
 Capital offense at all times 41 ; A. W. 64 
 
 Definitions and principles 415 
 
 Drunkenness as defense 286 
 
 Forms for specifications App. 6 (31-33) 
 
 Assaulting warrant or noncommissioned officer: 
 
 Analysis and proof of offense 416 ; A. W. 65 
 
 Definitions and principles 416 
 
 Forms for specifications App. 6 (35,36) 
 
 Assignment of pay, court-martial can not order 325 
 
 Assistant defense counsel (see also Defense counsel) : 
 
 Appointment for each general court-martial 31a, 107li ; A. W. 11 
 
 Closed sessions, not present at; duties in open court 101 
 
 Duties enumerated 107i 
 
 In general court-martial, one for each assistant trial judge 
 
 advocate, if possible . 31b, 107h 
 
 Name, presence, etc., in record 357 (b) (7-9, 11) 
 
 Power to appoint can not be delegated 18 
 
 Presence or absence at opening and after recess, in record 84, 
 
 357(b)(37,38) 
 
 Relation to individual counsel 108, 109 ; A. W. 17 
 
 Review proceedings, presence at 352 
 
INDEX. 691 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Ap[>eiidix.] 
 
 Assistant defense counsel Continued. P ar . 
 
 Usually present but .may be excused by court; noted in 
 
 record 107i 
 
 When included under term "Defense counsel " lOTi 
 
 Where seated in court 83 
 
 Assistant staff judge advocate (see also Staff judge advocate) : 
 
 Report or review of records 379 
 
 Assistant trial judge advocate (see also Trial judge advocate) : 
 
 Appointment ; duties 30, 106, 107 ; A. W. 11, 116 
 
 Authentication of general court-martial records, when 
 
 by 354, 357 (b) (54) ; A. W. 33 
 
 Closed sessions, not present at ; effect if present 101 
 
 Name, presence, etc., in record 357 (b) (7-9) 
 
 Oath administered to trial judge advocate as witness 134 (b) 
 
 Oath for administrative purposes administered by 138 (b) ; 
 
 A. W. 1U 
 
 Power to appoint can not be delegated 18 
 
 Presence or absence at opening and after recess, in 
 
 record 84,357(b) (37, 38) 
 
 Revision proceedings, presence at 352 
 
 Subscribing each day's proceedings, when shown in 
 
 record ._ 357(b) (53) 
 
 Taking of oath noted in record 357 (b) (17) 
 
 Trial of less important cases 107 
 
 Usually present but may be excused by court; noted in 
 
 record 107 
 
 When included under term trial judge advocate 107 
 
 Where seated in court 83 
 
 Assisting desertion : 
 
 Analysis and proof of offense 410; A. W. 59 
 
 Capital offense in time of war, any other punishment in 
 
 peace 61; A. W- 59 
 
 Definitions and principles 410 
 
 Forms for specifications App. 6(24) 
 
 Attachment of witness : 
 
 As process to obtain attendance; power, procedure, discre- 
 tion in exercise 159, 168 ; A. W. 22 
 
 Form for warrant App. 20 
 
 Papers to be used in making return, enumerated 168 (a f) 
 
 Procedure on habeas corpus out of Federal court 169 (a), 479; 
 
 App. 22 
 
 Procedure on habeas corpus out of State court 3 69 (b), 478 (a) ; 
 
 App. 22 
 Trial judge advocate's duties, how executed _ 168, 169 
 
692 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Attempt : 
 
 (See also the specific offense attempted.) rar. 
 
 A lesser included offense of offense alleged 300, 377 (note) 
 
 Conviction, when properly under general article 300 (note 2) 
 
 Defined 417 
 
 Attorney and client (see also Privileged communications) : 
 
 Communications are privileged; client only may waive; 
 
 third parties may testify 227 
 
 Auditor for the War Department : 
 
 Receives report on disposal of deceased person's effects 482 ; 
 
 A. W. 112 
 Authentication : 
 
 Court of inquiry records, by whom 473 
 
 Documentary evidence; fundamental requirement, pro- 
 cedure 236a 
 
 Documentary evidence; method; letters, telegrams, official 
 
 documents 239 
 
 Forms for, in absence of president or trial judge advo- 
 cate 357 (b) (54) 
 
 General court-martial records, by whom 354, 
 
 357(b) (54) ; A.W.33 
 
 Previous convictions ; how made for use at trial 306 
 
 Autrefois acquit, evidence to support plea of 274 
 
 (See also Former jeopardy.) 
 Bad character. (See Character evidence.) 
 Band leader, power to quell frays, disorders, etc.; pen- 
 alty 419; A. W. 68 
 
 Battalion : 
 
 Assignment to disciplinary, legal sentence for soldier 311 
 
 Detached; commanding officer may appoint special courts- 
 martial 21 ; A. W. 9 
 
 Detached ; commanding officer may appoint summary courts- 
 martial 25 ; A. W. 10 
 
 Detached; defined and discussed 28 
 
 Word includes squadron 4(note 1) ; A. W. l(d) 
 
 Battery : 
 
 Assault and. (See Assault and battery.) 
 
 Included under word "company" 4(notel) ; A.W. l(c) 
 
 Beginning mutiny or sedition, defined 417 
 
 Behaving in insubordinate or disrespectful manner to warrant 
 or noncommissioned officer : 
 
 Analysis and proof of offense 416; A. W. 65 
 
 Definitions and principles 416 
 
 Form for specification App. 6(38) 
 
INDEX. 693 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Best evidence : Par 
 
 General rule as to writings 236a(l),237 
 
 Of former trial by court-martial or civil court 274 
 
 Of pardon 273 
 
 Bias, hostility, etc.: 
 
 Challenge, ground of 121 
 
 Defense counsel may be excused from duty 107f 
 
 Of witness does not disqualify but affects weight of testi- 
 mony 213 
 
 Trial judge advocate may be excused from duty 102 
 
 Bigamy, wife may testify against husband accused of 228 
 
 Binding : 
 
 Records of general courts-martial; documents and papers, 
 
 App. 10, p. 627 
 
 Records of special courts-martial 362 
 
 Board of review: 
 
 Action on death, unsuspended dismissal or dishonorable 
 discharge, penitentiary cases and cases requiring Presi- 
 dent's approval or confirmation 371 ; A. W. 50$ 
 
 Duties under A. W. 50* described in detail 399a 
 
 Nonconcurrence of Judge Advocate General with ; procedure 
 
 399a(c),399(note2) 
 
 Board, refusal to appear before a 170 ; A. W. 23 
 
 Board to investigate injuries to property. (See Injury to prop- 
 erty, redress of.) 
 Bodily harm: 
 
 Assault. (See Assault with intent to commit bodily harm.) 
 
 Wife may testify against husband accused of inflicting 228 
 
 Books. (See Documentary evidence.) 
 
 Books of civilian witness; obtained by subpoena duces tecum, 
 
 form 166 ; App. 19, p. 651 
 
 Books of account, use; conditions, refreshing recollection, au- 
 thentication, originals 244 
 
 Branding prohibited 344 ; A. W. 41 
 
 Breach of arrest. (See Arrest.) 
 
 Breach of peace, lesser included offense in affray 377 
 
 Breaking defined 443, p. 418 
 
 Bribe : 
 
 Laying duty or imposition upon bringing in of victuals, etc. 437 ; 
 
 A. W. 87 
 
 Wrongful taking of money, etc., on muster 407 ; A. W. 56 
 
 Brief : 
 
 Records of general and special courts-martial 357 (b) (1), 361 
 
 To be filed with return to State court on habeas cor- 
 pus App. 22, p. 661 
 
694 INDEX. 
 
 [References are to paragraphs, except that the letter *'p" indicates page. 
 " A. W." indicates Articles of War, and " Appt" indicates Appendix.] 
 
 Brigade : Par. 
 
 Commander may appoint special courts-martial 21; A. W. 9 
 
 Commander's duties where officer arrested without charges 
 
 preferred 50 
 
 Detached ; defined and discussed 28 
 
 Powers of commander respecting summary courts-martial 29 
 
 Separate; commander may appoint general courts-mar- 
 tial 14 A. W. 8 
 
 Bulky reports not appended to record pp. 564 (9), 650 (5) 
 
 Burden of proof : 
 
 Finding of not guilty at close of prosecution's case lf>8c 
 
 In collateral issues 288 
 
 Mental condition of accused, on prosecution 219 (b) 
 
 On prosecution ; reasonable doubt defined 288 
 
 On special plea, rests with accused 153 (a) 
 
 Bureaus of War Department, copies of records as evidence 238 
 
 Burglary : 
 
 Definition and principles, proof, penalty. 443, pp. 413, 418 ; A. W. 93 
 Distinct and specific intent, independent of act, essential 280 
 
 Drunkenness as defense 285 
 
 Form for specifications App. 6(97) 
 
 Housebreaking distinguished 443, p. 420 
 
 Limitation of three years 149(2) 
 
 Specifications should set out facts as to any accompanying 
 larceny 443, p. 420 
 
 Burning buildings, vessels, stores, etc. (see also Arson) : 
 
 Arson distinguished from offense of 446, p. 4G6 
 
 Offense defined 446, p. 466 
 
 Cadet : 
 
 Conduct unbecoming officer and gentleman; offense de- 
 fined, proof 445 ; A. W. 95 
 
 Confirmation by President of sentence of suspension or dis- 
 missal 378(c) ; A. W. 48 
 
 Excepted from jurisdiction of special and summary court- 
 martial by G. O. 71, W. D., 1920 p. 656 
 
 Subject to Articles of War 4(b) ; A. W. 2(b) 
 
 Summary courts-martial, not triable by 43 ; A. W. 14 
 
 What article to be used in charging offenses 74 (e) (note) 
 
 When military jurisdiction over ceases 38 
 
 California, fees and mileage of civilian witnesses in 185 
 
 Call: 
 
 As subjecting person called to Articles of War__ 4(a) ; A. W. 2 (a.) 
 
 National Guard; laws and regulations applicable upon 4 (a) 
 
 (noted) 
 
INDEX. G95 
 
 I References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 As place of confinement of general prisoner _______________ 398 
 
 Camp followers subject to military law __________ 4(e) ; A. W. 2 
 
 Commanding officr may appoint special courts-martial _____ 21 ; 
 
 A. W. 9 
 
 Commanding officer may appoint summary courts-martial __ 25 ; 
 
 A. W. 10 
 Canal Zone: 
 
 Double jeopardy rule in ____________________________ 149(3) (d) 
 
 Trial in either civil or military court in, bar to trial in other 
 for same offense _________________________________ 149(3) (d) 
 
 Capital offenses (see also Death sentence) : 
 
 Accused must be confronted with witnesses against him__ 165; 
 
 A. W. 25 
 
 Case referred to special court-martial under A. W. 25 not 
 capital _____ _: _________________________________________ 263 
 
 Cross-examination permitted of witness deposing for de- 
 fense in ______________________________________________ 264 
 
 Court of inquiry records admissible for defense only. 272 ; A. W. 27 
 Depositions may be introduced by defense only_ 263, 264 ; A. W. 25 
 Enumerated ____________________________________________ 41 
 
 Former testimony, when admissible in __________________ 377a 
 
 Captured public property. (See Property.) 
 
 Carnal knowledge of female under 16 (see also Rape) : 
 
 Definition; distinguished from rape; essential ele- 
 
 ments ________________________________________ 446, p. 465 
 
 Form for specification _____________________________ App. 6(179) 
 
 Casting away arms or ammunition: 
 
 Analysis and proof of offense ______________ 425, p. 380 ; A. W. 75 
 
 Definitions and principles ______________________________ 425 
 
 Form for specifications _____________________________ App. 6 (57) 
 
 Certificate, use of typewriter in recording findings and sen- 
 tence _______________________________________________ 357 ( b ) ( 55 ) 
 
 Certificate of discharge, use as proof of good character before or 
 
 after findings _________________________________________ 270 
 
 Certificate of eligibility to promotion: 
 
 Deprivation of rights and privileges under, legal sentence by 
 general court-martial for enlisted men __________________ 311 
 
 Soldier holding not subject to summary court-martial. 43 ; A. W. 14 
 Challenge : 
 
 Classes, practically two; principal and for favor _____ 120 ( note 1) 
 
 Court of inquiry ; for cause only ________________ 464 ; A. W. 99 
 
 Defense counsel not challengeable ____________________ 107f 
 
 Defined; proof, penalty _________________________ 441 ; A, W. ft 
 
 Failure to report knowledge of _________________ 441 ; A. W. 91 
 
696 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Challenge Continued: Par. 
 
 For favor; enumerated, proof 121 (b) 
 
 Grounds enumerated 121 
 
 Joint offenses; each accused has one peremptory 69 
 
 Joint offenses; each accused may challenge 69 
 
 Law member challengeable only for cause 120 ; A. W. 18 
 
 Liberality in passing on 128 
 
 Medical board member 126(note2) 
 
 Member as accuser or witness for prosecution 129 ; A. W. 8, 9 
 
 Member as witness for either side, discussed 131 
 
 Member becoming witness; procedure 126 (b) 
 
 Member disqualified but not challenged; procedure 126 (a) 
 
 Member not to challenge another member ; procedure 124 
 
 Member signing charges 130 
 
 New member 122 
 
 Oath to test competency ; form 137 
 
 Opportunity to challenge noted in record 357 (b) (16) 
 
 Peremptory, each accused has one, in joint trials 120a ; A. W. 18 
 
 Peremptory ; may be used against new member 122 
 
 Peremptory, no reason need be stated 120a 
 
 Power of four members of general court-martial to pass on_ 7 (a) 
 
 Principal challenges enumerated, proof 121 (a) 
 
 Procedure in making described 120 ; A. W. 18 
 
 Procedure upon, detailed 125 
 
 Record to show who challenged and action thereon 357b(12) 
 
 Summary court officer not subject to 120 ; A. W. 18 
 
 Trial judge advocate not challengeable 120 
 
 Voting on ; method, secret written ballot 90a ; A. W. 31 
 
 Waiver of right, what action deemed 127 
 
 Chaplain, not usually detailed as member of court-martial 6(b) 
 
 Character evidence: 
 
 Accused as witness, character for credibility 206 
 
 Bad character of accused may not be shown ; exceptions- 205, 206 
 
 Certificate of discharge as proof of good character 270 
 
 How affected by rule as to motive 206 
 
 Service record of accused introduced after conviction 206 
 
 Statement of service as proof of good character 271 
 
 Charge sheet, form of App. 5 
 
 Charges : 
 
 (Of a particular offense, see the specific title.) 
 
 Accumulation usually improper; exception . 6c 
 
 Accused demanding trial in disciplinary punishment case 336of 
 
 Additional ; defined and discussed 73 
 
 Alias should be used in preparing 74 (i) 
 
 Charge sheet ; form, preparation, contents App. 5 
 
 Christian name should be used in preparing 74 (h) 
 
INDEX. 697 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Charges Continued. Pa^ 
 
 Consolidated distinguished from r dditional charges 73 
 
 Consolidation ; serious and minor offenses not to be joined- 67 
 
 Copies, disposition of 79 ; A. W. 70 
 
 Correction of defective, may be permitted by commanding 
 
 officer 76 
 
 Corrections and amendments of, by trial judge advocate 97 
 
 Definitions; charge and specification; requisites 61 
 
 Dismissal, after receipt, by commanding officer 76a( 1,11,12) 
 
 Disposed of by reference to special court in commanding 
 
 officer's discretion 76a(ll, 12) 
 
 Disposed of by reference to summary court in commanding 
 
 officer's discretion 76a(5,ll, 12) 
 
 Disposed of under A. W. 104 in commanding officer's discre- 
 tion 76a (2, 4, 7, 11, 12) 
 
 Disposition of, with accompanying papers, by trial judge 
 
 advocate 79 (b) 
 
 Duplication for same act usually improper ; when permitted- 66 
 
 Examination on receipt by trial judge advocate for errors 97 
 
 Finding of guilty on other charges than named 298, 300 
 
 Findings on, must be consistent with and supported by find- 
 ings on specifications 297 
 
 Formal, not required for disciplinary punishment 336c 
 
 Forms in Manual cover most offenses, but not mandatory.- 74 (f) 
 
 App. 6, p. 565 
 
 Forwarded in form of indorsement on letter of investigat- 
 ing officer 76a(ll) 
 
 Forwarded to commanding officer exercising summary- 
 court jurisdiction 75 
 
 Guilty of but one specification supports like finding upon 297 
 
 Initiation of, by civilians ; affidavits or other evidence 62 
 
 Investigation : 
 
 By staff judge advocate ; procedure in detail thereon 76b 
 
 Form; number of copies 76a(10 notes 2, 11) 
 
 Further, by return for that purpose 76b 
 
 Further, by staff judge advocate 76b 
 
 Informal, by commanding officer personally 76a(3-7) 
 
 Procedure in detail described 76a 
 
 Report of investigating officer; form, inclosure 76a(10) 
 
 Time limit after receipt 76a(3, 10) 
 
 Joint ; when may be preferred, form, challenges 69 
 
 List of witnesses for both sides forwarded with 75 
 
 Medical board, appointment in connection with; duties, 
 
 report, action thereon 76c 
 
 Memorandum of documentary evidence forwarded with 75 
 
 Method of voting on 294 
 
698 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates 
 "A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Charges Continued. Par. 
 
 Numbering 72 
 
 Oath to ; knowledge or investigation clearly set forth 75, 
 
 75 (note) ; A. W. 70 
 
 Offenders against laws of community ; procedure 35 
 
 Original counterpart appended to general court-martial 
 
 record 357 (b) (56) 
 
 Originals, with accompanying papers, disposition of 79 
 
 Pleading to, in what order 144 
 
 Preferred by any person subject to military law 63, 75 ; A. W. 70 
 
 Preference ; knowledge or investigation required 75, A. W. 70 
 
 Prepared in triplicate on prescribed form 75 ; App. 5 
 
 Private indebtedness ; when nonpayment an offense 71 
 
 Prompt action on; period; penalty for delay 77a; A. W. 70 
 
 Receipt by commanding officer, action upon described 76, 76a 
 
 Record of general court-martial to contain 357 (b) (18) 
 
 Record of general court-martial to contain name of person 
 
 subscribing and swearing to 367 (b) (19) 
 
 Return for correction or reconsideration 76 
 
 Return for reconsideration, when prohibited 352 ; A. W. 40 
 
 Service on accused 
 
 Failure to serve as ground for continuance 77b ; A. W. 70 
 
 Five days before trial, in peace time 77b, 80 ; A. W. 70 
 
 Of charges and other papers 77b ; A. W. 70 
 
 Signature and affidavit by person subject to military 
 
 law; forms 62; A. W. 70; App. 4 
 
 Signature and affidavit ; contents ; form of oath 75 ; 
 
 A. W. 70 ; App. 5, p. 561 
 Signature and affidavit; name, rank, organization, or rank 
 
 or status of person preferring 64 
 
 Signature and affidavit no part of 64 
 
 Signature " by order of " forbidden 64 
 
 Statement of article violated 74 (a) 
 
 Summary court; given serial number 351 (b) 
 
 Transfer to proper commanding officer 76 
 
 Triplicate; additional sheets; form 75 
 
 Uncorroborated confession not sufficient basis for 70 
 
 Witnesses, list of, forwarded with 75 
 
 Check-list, on record of trial 357 
 
 Child as witness: 
 
 Common-law rule abolished in courts-martial 210(a) (note) 
 
 Competency not regulated by age but by sense and under- 
 standing 210 (a) 
 
 Circumstantial evidence (see also Evidence) : 
 
 Defined and explained 202 (3), 203 
 
 Examples of admissible and inadmissible 204 
 
INDEX. 699 
 
 [References are to paragraphs, except tbat the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Citizen, right to arrest deserter ; reward 58, 59 ; A. W. 10G 
 
 Civil authorities : 
 
 Absence without leave as affected by detention by 412 
 
 Civil courts (see Civil courts). 
 
 Delivery of person found responsible on inquest for death 
 
 on post, etc., to 483; A. W. 113 
 
 Delivery to, as interrupting execution of sentence 401 ; A. W. 74 
 
 Depositions, when may be taken before 175 ; A. W. 26 
 
 Deserters, power to arrest and deliver to military authori- 
 ties 58 ; A. VV. 106 
 
 Refusal to deliver offender to, in peace time, offense ana- 
 lyzed, penalty 35, 424 ; A. W. 74 
 
 Refusal to deliver offender to, specific intent required 281 
 
 State courts. (See State courts.) 
 
 Witnesses in, confinement, attendance at court-martial 167 
 
 Civil courts : 
 
 Concurrent jurisdiction with military courts of certain 
 
 offenses 35 
 
 Federal ; habeas corpus in attachment proceedings, pro- 
 cedure 169 ( a ) 
 
 Federal ; power to inquire into legality of detention of per- 
 son in military control 33 
 
 Federal; punishment of recalcitrant witness before court- 
 martial by 170 
 
 Federal; removal to, of suit against member of military 
 
 service 484 ; A. W. 117 
 
 Former testimony in, when admissible in courts-martial 275 
 
 Former trial in, when bar to second trial 149(3), 274; A. W. 40 
 
 Powers of, over judgments of courts-martial 33 
 
 State courts. (See State courts.) 
 
 When accorded priority of jurisdiction 35 
 
 Civil offenses. (See Civil authorities; Civil courts.) 
 Civil officers (see also Civil authorities) : 
 
 Certain officers serving with Army abroad have powers of 
 
 notary public or consul 138 (b) ; A. W. 114 
 
 Fees for taking depositions 181 
 
 Civil suits, removal to Federal court of civil or criminal suit 
 
 against member of military service 484 ; A. W. 117 
 
 Civilian witnesses. (See Witnesses.) 
 Civilians : 
 
 May initiate court-martial charges 62 
 
 Warning by arresting civilian as to incrimi nation not nec- 
 essary 225 (b) 
 
 Claims, (See False claims against United States.) 
 
700 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Class A allotment not subject to detention or forfeiture 311 
 
 Class B allotment not subject to detention or forfeiture 311 
 
 Class B, officer placed in : 
 
 Court of inquiry may be ordered to inquire into correct- 
 ness 3(d) (note), 447a, 452 
 
 Discharged officer lias no right to trial under R. S. 
 
 1230 38 (b) (note) 
 
 Clemency : 
 
 Applications for, who may pass on ; excepted places 402 
 
 Applications limited to one in six months 404 
 
 Recommendation by court-martial; contents, form, specific 
 
 character 332 
 
 Recommendation in special court trial, appended to record- 358 (c) 
 Recommendation not embodied in but bound into record 
 
 of general court-martial 357(b) (57) 
 
 Remission of suspended sentence of dishonorable discharge, 
 
 a matter of 403 
 
 Clerk : 
 
 Extra compensation forbidden except to reporters 118 
 
 Finding or sentence not communicated to; legality unaf- 
 fected if done 305 
 
 For defense counsel 107g 
 
 For trial judge advocate 105 
 
 Record- may be prepared by 355 
 
 Closed sessions: 
 
 Effect of presence of trial judge advocate during 101 
 
 Sitting with closed doors, practice and propriety of 92 
 
 Trial judge advocate, defense counsel, etc., not present at 101 
 
 When voting on challenge, findings or sentence; pro- 
 cedure 91 ; A. W. 31 
 
 Clothing defined 434 
 
 Coast Artillery district commander: 
 
 Duties where officer arrested without charges preferred 50 
 
 Code of District of Columbia : 
 
 As guide for penitentiary sentence and duration of 
 
 same 40, 338 ; A. W. 42, 45 
 
 As source of definitions for offenses under A. W. 92 and 
 
 93, after Penal Code 442, p. 408 
 
 Collateral issues: 
 
 Burden of proof in 288 
 
 Limitations on contradiction or impeachment of witnesses 
 
 as to 259 
 
 Prejudice, bias, relationship, etc., never regarded as 260 
 
 Colorado, fees and mileage of civilian witnesses in 185 
 
INDEX. 701 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Command : Par 
 
 Assignment of, among regulars, militia, and volunteers 12; 
 
 A. W. 119 
 
 Authority to exercise in absence, etc., of area or depart- 
 ment commander 19 
 
 Compelling surrender; analysis, proof, penalty__ 426; A. W. 76 
 Detached; commanding officer may appoint special courts- 
 martial 21 ; A. W. 9 
 
 Detached; commanding officer may appoint summary 
 
 courts-martial 25 ; A. W. 10 
 
 Endangering safety of ; analysis, proof, penalty 425, p. 379 ; 
 
 A. W. 75 
 
 Officer in arrest may not exercise 49 
 
 Power to appoint general court-martial a personal attribute 
 
 of 18 
 
 President of court-martial does not exercise 89 
 
 Shamefully abandoning or delivering up; analysis, proof, 
 
 penalty 425, p. 378 ; A. W, 75 
 
 Suspension from. (See Suspension from command.) 
 
 When different corps or commands join 10, 11 ; A. W. 120 
 
 Commander of a guard : 
 
 May receive prisoner without account of charge, etc 421 
 
 Refusal to receive or keep prisoner, accompanied by written 
 
 account of offense ; penalty 55, 421 ; A. W. 71 
 
 Report on confinement of prisoners within 24 hours 55 (note) ; 
 
 A. W. 72 
 
 Term includes noncommissioned officer or private 421,422 
 
 Commanding general of Army in field: 
 
 Confirmation of sentences by, when sufficient 378(b) (d) ; 
 
 A.W.48 
 
 Mitigation or remission of sentences, when empowered 381; 
 
 A. W. 50 
 
 Commanding officer (see also Appointing authority; Confirming 
 authority; Reviewing authority): 
 
 Arrest of officer only ordered by; exceptions 47 (a) 
 
 Arrest of officer without preferring charges, duties on 50 
 
 As "accuser" or "prosecutor," discussed, as defense, pro- 
 cedure 17, 22 
 
 Being interested in sale of victuals, etc. ; offense described, 
 
 penalty 437 ; A. W. 87 
 
 Charges, action upon receipt of, described 76, 76a 
 
 Compelling surrender by, analysis, proof, penalty 426 ; A. W. 76 
 Complaints of wrongs alleged to have been done by; pro- 
 cedure 485 ; A. W. 121 
 
 Courts of inquiry, discretion as to publication of proceed- 
 ings of 472 
 
 21358" 20 45 
 
702 INDEX. 
 
 [References are to paragraphs, except that the letter "p** indicates page, 
 "A. W." Indicates Articles of War, and "App," indicates Appendix.] 
 
 Commanding officer Continued. Par. 
 
 Courts of inquiry, limitation upon power to appoint 447, 
 
 448 ; A. W. 97 
 
 Courts of Inquiry ; power to order, discretion 447, 449 ; A. W. 97 
 
 Deceased persons' effects, duties respecting 482 ; A. W. 112 
 
 Definition under A. W. 74 relating to delivery of accused 424 
 
 Definition under A. W. 67 relating to mutiny 418 
 
 Definition under A. W. 72 relating to report of prisoners.. 422 
 Delegation of appointing powers respecting courts-martial, 
 
 forbidden 18 
 
 Disciplinary powers defined and discussed 333 ; A. W. 104 
 
 Disciplinary punishment, responsibilities affecting 336a 
 
 Disrespect toward ; analysis and proof, penalty.- 414 ; A. W. G3 
 
 Duration of power to appoint general court-martial 18 
 
 Duties where general or special court-martial likely to 
 
 be reduced below quorum 7 (a) (b) 
 
 Eligibility for appointment as summary court-martial 26, 27 ; 
 
 A. W. 10 
 
 Eligibility for membership in special court-martial 24 
 
 Exercises military jurisdiction under A. W. 104 3 (c) 
 
 General court-martial, duration of power to appoint 18 
 
 General court-martial ; duties respecting quorum, new mem- 
 bers, officers thereof, etc 7 (a) 
 
 Injuries to property; duties under A. W. 105 481 
 
 Inquests, duties respecting holding of 483 ; A. W. 113 
 
 Interest in sale of victuals, etc., forbidden ; penalty- 437 ; A. W. 87 
 
 Interrogatories, duties as to securing 177 
 
 Laying a duty or imposition upon bringing in victuals, etc. ; 
 
 offense described, penalty 437 ; A. W. 87 
 
 Prompt action on charges ; duties, penalty 77a ; A. W. 70 
 
 Refusal to deliver offenders to civil authorities ; penalty. 35 ; 
 
 A. W. 74 
 
 Release of accused after trial, when required by ; 332a 
 
 Reparation for damage, duty to provide for; penalty for 
 
 failure 89, 439 ; A. W. 105 
 
 Report of, upon arrest of officer without preferring charges. 50 
 
 Senior officer on duty at recruiting sentence as 26 
 
 Special court-martial ; duties respecting quorum, new mem- 
 bers, officers thereof, etc 7(b) 
 
 Special court-martial, higher authority may appoint on 24 
 
 Special court-martial, not to appoint self on 24 
 
 Summary court-martial, defined with reference to appoint- 
 ing 26 
 
 Summary court-martial, when not to designate self as 26 
 
 Who may appoint general courts-martial 14 ; A. W. 8 
 
 Who may appoint special courts-martial 21 ; A. W. 9 
 
 Who may appoint summary courts-martial 25 ; A. W. 10 
 
INDEX. 703 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Comment by prosecution: Par. 
 
 Accused as witness silent on certain facts, permitted 214 (c) 
 
 Accused failing to take stand, no comment permitted 214 (c) 
 
 Commercial lists, registers, etc., admission as exception to 
 hearsay rule 221a(7) 
 
 Commission, military. (See Military commission.) 
 
 Committing any waste or spoil : 
 
 Analysis and proof of offense 439 ; A. W. 89 
 
 Definitions and principles 439 
 
 Forms for specifications App. 6 (82-84) 
 
 Committing depredation or riot : 
 
 Analysis and proof of offense 439 ; A. W. 89 
 
 Definitions and principles 439 
 
 Forms for specifications App. 6(82-85) 
 
 Common law : 
 
 Accomplices not disqualified as at 217 (note 1) 
 
 As applicable to the rules of evidence in courts-martial 198, 199 
 Competency of children in courts-martial not governed by_ 210 (a) 
 
 (note) 
 
 Judicial notice 289 
 
 Of District of Columbia 338 (c) 
 
 Commutation of sentences, President alone may exercise power 
 of, unless delegated under A. W. 50 384 
 
 Commuted death sentence may be executed in penitentiary 338 ; 
 
 A. W. 42 
 
 Company : 
 
 Company commander initials charge sheet of summary court 
 
 as to entries on service record App. 5(6) 
 
 Company commander's duties respecting record of summary 
 
 court conviction 79 (a) 
 
 Detached ; commanding officer may appoint summary courts- 
 martial 25 ; A. W. 10 
 
 Detached; defined and discussed 28 
 
 Disciplinary punishments entered in punishment book 334 
 
 Embezzlement by former officer of funds of, how punish- 
 able 444, p. 457 ; A. W. 94 
 
 Word includes troop or battery 4(notel) ; A. W. l(c) 
 
 Compelling commander to surrender: 
 
 Analysis and proof of offense 426 ; A. W. 76 
 
 Attempt a like offense ; analysis, proof, penalty 426 ; A. W. 76 
 
 Definitions and principles 426 ; A. W. 76 
 
 Form for specification App. 6(60) 
 
 Compensation : 
 
 Extra, for clerical duties ; when forbidden 118 
 
 Of reporter, (See Reporter.) 
 
704 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Competency of witnesses. (See Witnesses.) Par. 
 Complaint of wrongs, to general commanding in locality; pro- 
 cedure 485; A. W. 121 
 
 Concealment : 
 
 Defined, as to fraudulent enlistment 405 
 
 Presumption of fact arising from 278 
 
 Concurrent jurisdiction : 
 
 Of civil and military courts 35 
 
 Of other military tribunals with courts-martial 45 ; A. W. 15 
 
 Condonation, constructive, by restoration of deserter to duty 
 
 without trial ; as plea in bar 151 
 
 Conduct, insubordinate, toward warrant or noncommissioned 
 
 officer, definition and proof 416 ; A. W. 65 
 
 Conduct of a nature to bring discredit upon the military service : 
 
 Definitions and principles, instances, proof 446, p. 462 ; A. W. 96 
 
 Forms for specifications App. 6 
 
 Conduct prejudicial to good order, etc., offenses where drunken- 
 ness shows lack of intent 286 
 
 Conduct unbecoming an officer and gentleman : 
 
 Analysis and proof, instances 445 ; A. W. 95 
 
 Cadet may be guilty of 445 ; A. W. 95 
 
 Definitions and principles 445 
 
 Forms for specifications App. 6(123-130) 
 
 Lesser included offenses thereunder enumerated 377 
 
 Confession (see also Admission against interest) : 
 
 Accused can not be required to admit his statement 225 (note 1 ) 
 
 Admissions against interest distinguished 226 
 
 Affirmative showing that voluntary 225 (b) 
 
 Facts discovered from, admissible in evidence 225 (e) 
 
 Of accomplice as ground for milder punishment 216 
 
 Rules for admission of 225 
 
 Silence is not a confession 225 (d) 
 
 Uncorroborated, caution in receiving 225 (d) 
 
 Uncorroborated, not sufficient basis for charges 70 
 
 Confidential relations. (See Privileged communications.) 
 Confinement (see also Arrest) : 
 
 Accused persons not to be placed in ; exceptions 40 ; A. W. 69 
 
 At hard labor 
 
 Executive order limiting duration p. 283 
 
 For officers only to accompany sentence of dismissal 322 
 
 Legal sentence for officer 310 
 
 Legal sentence for soldier 311 
 
 May be mitigated ; how 382 
 
 Only proper sentence for general prisoners 330 
 
 Relative severity to other sentences 343 
 
 Statement in sentence, effect of omission 322 
 
INDEX. 705 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Confinement Continued. Tar. 
 
 Change of place of 389 
 
 Commanding officer's disciplinary power does not extend to_ 333 ; 
 
 A. W. 104 
 
 Consideration of past, in determining sentence proper 401 
 
 Court-martial without authority to order but may make 
 
 recommendations 47 (c) 
 
 Date of beginning sentence of 401 
 
 Designation of place of, by whom 394 
 
 Disobedience of orders ordering into ; penalty 419 ; A. W. 68 
 
 Distinguished from arrest 420 
 
 Escape 
 
 Analysis and proof of offense 420 ; A. W. 69 
 
 Definitions and principles of offense 420 
 
 Forms for specifications App. 6(43) 
 
 Offense same before or after trial or sentence 46 (b), 420; 
 
 A. W. 69 
 
 Punishment for officer or cadet, for others. 40, 420 ; A. W. 69 
 Exceeding six months, special court-martial can not ad- 
 judge 42 ; A. W. 13 
 
 Forfeiture of pay and allowances not implied from 324 
 
 Hard labor without, use of punishment encouraged 323 
 
 Imports some physical restraint 420 
 
 In post, when proper 398 
 
 In penitentiary, when proper 40, 337-339, 396 ; A. W. 42, 45 
 
 In disciplinary barracks, when proper 397 
 
 Jurisdiction of court unaffected by failure to place accused 
 
 in 46 (note) 
 
 Mitigation of sentence of 382 
 
 Of accused awaiting investigation or trial, no unnecessary 
 
 delay ; penalty 420* ; A. W. 70 
 
 Of soldier only on order of officer ; exceptions 52 
 
 Officer, sentence affecting, reported to The Adjutant Gen- 
 eral 310 (note) 
 
 Place : 
 
 Authority to change 389 
 
 Designated by reviewing authority 394 
 
 Disciplinary barracks as 397 
 
 Military post, station or camp as 398 
 
 Penitentiary as 396 ; A. W. 42 
 
 Release after trial, when required 332a, 371 
 
 Restriction to limits, nature of 319 
 
 Second sentence, when taking effect if first sentence in- 
 volves 401 (b) 
 
 Segregation of prisoners 341, 396-399 
 
 Sentence of, continuous; exceptions 401 
 
706 INDEX. 
 
 (References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." Indicates Articles of War, and " A pp." Indicates Appendix.] 
 
 Confinement Continued. Par. 
 
 Summary court-martial can not impose in excess of one 
 
 month 44, A. W. 14 
 
 Without hard labor should not be imposed 311 ( note 1) 
 
 Witness, civilian, in ; how testimony obtained 167, A. W. 25 
 
 Confirmation of sentence : 
 
 As affected by review by Board of Review and Judge Advo- 
 cate General 399a ; A. W. 50J 
 
 As necessary to validity 38, 33a 
 
 As unnecessary to validity 378 (d) 
 
 Manner of exercise of power ' 379 
 
 Powers incident to power to confirm 379 
 
 Sentence of death 378 (d) 
 
 Sentence of dismissal of a cadet 378 (c) 
 
 Sentence of dismissal of an officer 378 (b) 
 
 Sentence respecting a general officer 378 (a) 
 
 When by commanding general of Army in the field 378 (b) (d) ; 
 
 A. W. 48 
 
 When by the President 378 ; A. W. 48 
 
 Confirming authority (see also Commanding officer) : 
 
 Action by, as necessary to make sentence effective 371 
 
 Forwarding of records after action by 367 (a) 
 
 Medical board on insanity, etc., of accused may be convened 
 
 on own motion by 219 (h) (note) 
 
 Power as, under A. W. 48, not exercisable by corps or Army 
 
 area commanders 378(notel) 
 
 Review of cases under A. W. 50$, duties in connection with. 399a 
 
 Confrontation, right of 165 ; A. W. 25 
 
 Congress : 
 
 Disrespect toward Member of; penalty 413; A. W. 62 
 
 Powers granted to, as a source of military jurisdiction 1 
 
 Consanguinity as ground of challenge 121 
 
 Consent : 
 
 Admission of affidavit not taken in form of deposition, by_ 269 
 Trial by general court-martial within 5 days of service of 
 
 charges only, in time of peace, by 77b, 80, A. W. 70 
 
 Consequence of acts, presumption of law that sane person 
 
 knows 277 
 
 Conspiracy (see also Accomplice) : 
 
 Acts and statements of conspirators, when admissible 
 
 against each other 217,224 
 
 Conspirator must waive his privilege before testifying 217 
 
 Defined, when joint trial permitted, examples, challenge 69 
 
 Nolle prosequi; to secure testimony of conspirator 217 (notes) 
 
 Order of proof on trial 224 
 
 To defraud United States through false claims 444, p. 452 ; 
 
 A. W. 94 
 
INDEX. 707 
 
 [References are to paragraphs, except that the tetter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Constitution of United States: Par. 
 
 Judicial notice 289 
 
 Rules of evidence in, as binding 198 
 
 Source of military jurisdiction 1 
 
 Constructive breaking defined 443, p. 418 
 
 Constructive condonation, by restoration of deserter to duty 
 
 without trial; plea in bar 151 
 
 Constructive pardon, evidence to support plea of 273 
 
 Consul, general powers of, in certain named officers in foreign 
 places where Army serving 138 (b) ; A. W. 114 
 
 Contempt : 
 
 Action of district attorney on constructive 173 (c) 
 
 Authority of courts of inquiry to punish 460 
 
 Authority 'of military tribunal to punish, limits, ap- 
 proval 173(a) ; A. W. 32 
 
 Charge under A. W. 96 as substitute for proceedings in 173 (d) 
 
 Direct and constructive defined 173 (c) 
 
 Persons who may be punished; treatment of civilians 173 (b) 
 
 Procedure of court-martial in punishment of 173 (d) 
 
 Toward certain Federal or State officials by military 
 
 persons 413 ; A. W. 62 
 
 Contemptuous words. (See Disrespect toward President, etc.) 
 
 Continuance : 
 
 Authority for; when and how granted; reference to ap- 
 pointing authority 139; A. W. 20 
 
 Number not limited; extended delays 141 
 
 Of a condition or state, presumption as to 278 
 
 Plea in abatement as ground for 147 
 
 Reasons for required; absent witnesses 140 
 
 Contradiction of witness. (See Witnesses Contradiction.) 
 
 Convening authority. (See Appointing authority ; Reviewing 
 authority.) 
 
 Conviction : 
 
 As including lesser offense; cases enumerated 377 
 
 Former, for same offense, how proved 274 
 
 Forms for synopses of convictions App. 7 
 
 General principles applicable to findings 297 
 
 " Guilty without criminality " an improper finding 303 
 
 In courts-martial does not disqualify witness 211 
 
 Joint charges; procedure where also acquittal 301 
 
 Lesser included offense ; procedure for court 298, 300 
 
 Method of voting requisite to finding of 294 
 
 Not prevented by escape of accused during trial 36 
 
 Previous. (See Previous conviction.) 
 
 Privilege of self -crimination ceasing upon 233 (a) 
 
 Votes necessary to 295(a) 
 
 With exceptions or substitutions, described 299 
 
708 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Copies (see also Documentary evidence) : Par. 
 
 Charge sheets in triplicate; use of form App. 5(3) 
 
 Charges and accompanying papers for accused 77b ; A. W. 70 
 
 Court of inquiry, record of ; number 474 
 
 Of record; offer to accused noted in record 357(b) (15) 
 
 Of record of general court-martial when not desired by ac- 
 cused, disposition 355a 
 
 Record of general or special court-martial; preparation, 
 
 for accused 117, 357 (b) (3) , 359 
 
 Record of general or special court, to accused; receipt 366 (b) 
 
 Special courts-martial records, when appended to 358 (d) 
 
 Corps area: 
 
 Commander, successor on death or disability of 19 
 
 Commander without power to confirm sentences under 
 
 A. W. 48 378 (note 1) 
 
 Commander's duties when officer arrested without charges 
 
 preferred 50 
 
 Commander's power to appoint general courts, when termi- 
 nated or suspended 18 
 
 Habeas corpus, telegraphic report to commander on writ out 
 
 of Federal court 169(a),479 
 
 Judicial notice of existence 289 
 
 Judicial notice of general or special orders, discussed. 289 
 
 Witnesses, duties of commander respecting 163, 164 
 
 Corpus delicti, defined; proof; sufficiency 225(c) 
 
 Corroboration : 
 
 Admissions in statement before court-martial by accused 
 
 require 292 
 
 Confession, uncorroborated, not sufficient basis for charges. 70 
 
 Corpus delicti; nature and order of proof 225 (c) 
 
 Of coconspirator or accomplice not required but caution 
 
 necessary 224 
 
 Perjury ; by second witness or other form of evidence ; 
 
 exceptions 248 
 
 Prior statement as, usually not admissible ; exceptions 258a 
 
 Prior statement of identification of accused as 223 (a) 
 
 Single witness sufficient except in treason and certain 
 
 cases of perjury 248 
 
 Treason ; by two witnesses to overt act 248 
 
 Counsel (see also Defense counsel) : 
 
 Analysis of evidence by ; discussed 196 
 
 Appointment of, when selected by accused 108 ; A. W. 17 
 
 Civilian, not provided at Government expense 108; A. W. 17 
 
 Closed sessions, not present at ; duties in open court 101 
 
 Courts of inquiry 463; A. W. 99 
 
 Defense counsel. (See Defense counsel.) 
 
INDEX. 709 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Counsel Continued. Par 
 
 Depositions taken upon oral interrogatories 181i(c) 
 
 Examination of depositions before trial, permitted 266 
 
 Freedom of expression to the court ; limitations 107e, 291 
 
 Individual ; appointment and availability of 108 
 
 Individual; duties, defense counsel as associate. 109, 196 (note) ; 
 
 A. W. 17 
 
 Individual ; preparation for trial, excuse from other duties 109a 
 Individual ; presence or absence at opening and after recess, 
 
 in record 357(b) (37, 38) 
 
 Individual ; requesting witnesses ; duties of defense counsel- 161 
 
 Individual ; right to interview accused and witnesses 110 
 
 Informing court as to member being accuser or witness 129 
 
 Insanity, etc., of accused raised at trial, duties 219 
 
 Investigation of charges, when counsel permitted at 76a(3) 
 
 Opening statement as to defense; improprieties 197 
 
 Process to obtain witnesses, request for 159 
 
 Questions in writing, when required 111 
 
 Record to show opportunity to introduce individual.. 357(b) (10) 
 Record to show presence of individual, at all open ses- 
 sions 84, 357(b)(ll) 
 
 Rehearing, rights as to record, etc., on 377a 
 
 Represents an escaped accused as though he were present- 36 
 
 Summary court acts for both sides 351 (c) 
 
 Where seated in court 83 
 
 Counterfeit money, drunkenness as defense to passing 285 
 
 Countersign, improper use of: 
 
 Capital offense in time of war 41 ; A. W. 77 
 
 Giving different countersign ; analysis and proof of of- 
 fense 427 ; A. W. 77 
 
 Giving different countersigns; definitions and principles 427 
 Giving different countersign; form for specifications App. 6(62) 
 Making known countersign; analysis and proof of of- 
 fense 427 ; A. W. 77 
 
 Making known countersign; definitions and principles 427 
 
 Making known countersign; form for specifications App. 6(61) 
 
 Courts, civil. (See Civil courts.) 
 
 Court-martial orders. (See General court-martial orders; 
 
 Special court-martial orders.) 
 
 Courts-martial. (See also the specific court-martial.) 
 Jurisdiction 
 
 Control of person of accused; freedom in its pres- 
 ence 47(c),87 
 
 Conditions necessary to show, enumerated 34 
 
 Defined ; special and limited ; must conform to statute. 32 
 
710 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates pnge, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Court-martial Continued. 
 
 Jurisdiction Continued. p a r - 
 
 Entirely criminal; can not award damages or collect 
 debts 33 
 
 Escape during trial does not divest 36 
 
 In general, for trial of offenders against military law_ 3(b) 
 
 Nature of, discussed and defined 32, 33, 33a 
 
 Not territorial; difference from civil courts 37 
 
 Termination by separation from service; exceptions. 38 
 
 Wrongful act of accused can not divest 36 
 
 Members 
 
 Competency issue by preponderance of evidence 296 
 
 Detail of best qualified ; two years' experience. 6(c) ; A. W. 4 
 
 Marine Corps officers, when eligible 10 ; A. W. 2 
 
 No distinction between regular and other officers 11 
 
 Not to communicate finding or sentence to reporter or 
 
 clerk 305 
 
 Reserve officers eligible when ordered to active duty 6(c) 
 
 Retired officers, when eligible 9(b) 
 
 Suspended officer ineligible 9(a),314 
 
 Temporary officers, when eligible as 9(c) 
 
 Volunteers eligible from date of muster or acceptance. 9(c) 
 
 What officers competent and incompetent to serve 6; 
 
 A. W. 4, 8-10 
 
 Nature discussed 32, 33, 33a 
 
 Powers, appointing authority can not control exercise 20 
 
 Proper court for trial, considerations governing 78 
 
 Questions of witnesses 
 
 Court or a member may ask 253 
 
 Subject to rules of evidence ; care requisite 253a 
 
 Recommendation of suspension of dishonorable discharge 321 
 
 Records. (See Records of courts-martial.) 
 Revision proceedings. (See Revision.) 
 
 Three kinds general, special, and summary 5 ; A. W. 3 
 
 Courts of inquiry: 
 
 Challenges for cause only; one at a time 4G4; A. W. 99 
 
 Class B, to inquire into classification of officers as of_J_ 447a, 4;~2 
 
 Composition ; three or more officers 453 ; A. W. 98 
 
 Conclusions as to facts and, when ordered, opinion on 
 
 merits 469 
 
 Conclusion, dissenting, authorized 469 
 
 Convening order, contents 455 
 
 Counsel, privilege may be allowed accuser or any officer in- 
 volved 403 
 
 Counsel, right of, in party whose conduct being inquired 
 
 into 463 ; A. W. 99 
 
INDEX. 711 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Courts of inquiry Continued. Par. 
 
 Depositions ; same rules as for courts-martial 468 ; A. W. 25, 26 
 
 Exercise military jurisdiction . 8(d) 
 
 Information of superior officer, a proper subject for 452 
 
 Interpreter; appointment and compensation 457 
 
 Jurisdiction of conduct of officers and soldiers only, in 
 
 service 450; A. W. 97 
 
 Jurisdiction of subject matter; principal uses of 452 
 
 Limitation upon power to convene of commanding officer 448 
 
 Members; suspended officer ineligible 314 
 
 Membership in, as ground for challenge at court-martial 121 
 
 New member, testimony read to . 465 
 
 Oath of interpreter as in courts-martial 466 ; A. W. 101 
 
 Oath of members ; form, administered by recorder. 466 ; A. W. 100 
 Oath of recorder ; form, administered by president- 466 ; A. W. 100 
 
 Oath of reporter as in courts-martial , 466 ; A. W. 101 
 
 Oath of witnesses as in courts-martial 466 ; A. W. 101 
 
 Ordered to inquire into class B classification of offi- 
 cer 3(d) (note) 
 
 Presence of party whose conduct being investigated, not es- 
 sential but opportunity ordjnarily given 462 
 
 Presence, opportunity always given class B officer 462 
 
 President has power to appoint reporter and interpreter 457 
 
 President or recorder may administer certain oaths 138 (b) ; 
 
 A. W. 114 
 
 Propriety of court-martial, a proper subject for 452 
 
 Publication of proceedings permitted but not required 472 
 
 Rank of members to that of officer appearing before 456 
 
 Recorder, absence of, procedure 465 
 
 Recorder for each ; not adviser or prosecutor but may assist- 454 ; 
 
 A. W. 98 
 
 Record admissible in evidence, in what cases 475 
 
 Record, authentication of 473 
 
 Records, disposition of 474 
 
 Reduced membership of court; procedure 465 
 
 Reporter always appointed on class B classification in- 
 quiry 457 
 
 Reporter ; appointment, compensation, enlisted man eligible. 457 
 
 Retired officers on 453 
 
 Secrecy not enjoined but prejudicial conduct to divulge rec- 
 ommendations, etc 470 
 
 Statute of limitations not applicable to 451 
 
 Vindication of character, a proper subject for 452 
 
 When and by whom ordered 447; A. W. 97 
 
 Witnesses; examination, cross-examination, incriminating 
 questions 467 ; A. W. 24, 101 
 
712 INDEX. 
 
 [References are to paragraphs, except that the letter *'p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Courts of inquiry Continued. Par. 
 
 Witnesses ; refusal to appear or testify, penalty 459 ; A. W. 23 
 
 Witnesses; same powers to summon and examine as given 
 
 court-martial and trial judge advocate 458 ; A. W. 101 
 
 Cowardice : 
 
 Drunkenness as showing lack of knowledge or intent 286 
 
 Misbehavior before the enemy; defined, proof, pen- 
 alty 425, pp. 377, 378 ; A. W. 75 
 
 Publication of officer's sentence in newspapers; non-asso- 
 ciation with him 347 ; A. W. 44 
 
 Crimes and offenses: 
 
 (See the specific offense by name.) 
 
 Abolition as affecting privilege against self-crimination- 233 (a) 
 
 Conviction of attempt on specification alleging completed 
 
 crime, proper 300 
 
 Definitions and principles under A. W. 92, 93 442, p. 408 
 
 Evidence of conviction of crime to impeach witness 258 
 
 Executive order as to maximum punishment, etc 348, 349 
 
 General court-martial, how and when punishable by 40; 
 
 A. W. 42, 45 
 
 Intent in connection with ; discussed, examples 280, 281 
 
 Jurisdiction of civil and military courts 35 
 
 Military jurisdiction over, not territorial 37 
 
 Not capital and not elsewhere in Articles of War, punish- 
 able under A. W. 96 446, p. 463 
 
 Of civil nature, when executed in penitentiary ; described. 40, 338 ; 
 
 A. W. 42 
 
 Presumption of fact from preparation to commit 278 
 
 Specific article of war used where provided 74 (e) 
 
 Statute of limitations 149 
 
 Transitory provision concerning 487 
 
 Criminal prosecution, removal to Federal courts when against 
 
 member of military service 484 
 
 Cross-examination. (See Witnesses.) 
 Cross-interrogatories. (See Depositions.) 
 
 Cruel and unusual punishments prohibited 344 
 
 Cruelty, wife may testify against husband accused of 228 
 
 Cuba, fees and mileage of civilian witnesses in 185 
 
 Custody distinguished from possession 443, p. 426 
 
 Custom, punishments now obsolete by, enumerated 345 
 
 Custom of war as source of military law 2(d) 
 
 Damages : 
 
 Courts-martial can not award 33 
 
 Reparation ; duty of commanding officer, penalty 89, 439 
 
 A. W. 105 
 To military property as offense; analysis and proof. 433 ; A. W. 83 
 
INDEX. 713 
 
 LKefei-ences are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Dangerous weapon defined 443, p. 447 
 
 Deadly weapon, malice presumed from use of 277 
 
 Death, investigation of by summary court : 
 
 Persons suspected of criminal responsibility, disposition of_ 483 
 
 Procedure described , 483 ; A. W. 113 
 
 Death sentence (see also Capital offenses) : 
 
 Commuted sentence of, may be executed in penitentiary 338; 
 
 A. W. 42 
 
 Confirmation by President, when required 378 (d) ; A. W. 48 
 
 Execution. (See Execution of death sentence.) 
 
 Forfeiture of pay and allowances not implied from 324 
 
 Officers, may be imposed on 310 
 
 Procedure where insufficient votes to sustain mandatory 309 
 
 (note 2) 
 
 Record to show necessary concurrence 357 (b) (47) 
 
 Requires prior action of board of review and Judge Advo- 
 cate General 371 ; A. W. 50 
 
 Review by board of review and Judge Advocate General 399a ; 
 
 A. W. 50i 
 
 Soldiers, may be imposed on 311 
 
 Suspension of, until pleasure of President known 391 ; A. W. 51 
 
 Voting ; all members must agree whether mandatory or dis- 
 cretionary 308 
 
 Voting; number of votes required for conviction and sen- 
 tence 90a, 295, 308, 346 ; A. W. 43 
 
 Voting; -where mandatory, w r here discretionary 295 (a) (b) 
 
 When authorized ; when mandatory ; cases enumerated 40, 
 
 40(notel),41 
 Debts : 
 
 Courts-martial can not collect 33 
 
 Stoppage by courts-martial to pay, invalid 325 
 
 When nonpayment a military offense and when no action 
 
 taken 71 
 
 Deceased persons : 
 
 Dying declarations as exception to hearsay rule 221a(l),222 
 
 Disposition of effects of 482 ; A. W. 112 
 
 Statements of, in general, when admissible as hearsay ex- 
 ceptions 221a (10) 
 
 Declarations against interest as evidence 226 
 
 Decorum at courts-martial 86 
 
 Defense : 
 
 Convening authority alleged to be accuser, as 17 
 
 Ignorance of Articles of War as 282 
 
 Ignorance of fact as 283 
 
 Ignorance of law as 282 
 
 Member of court-martial as witness for 131 (b) 
 
714 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates pag, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Defense counsel (see also Counsel) : Par. 
 
 Aid in providing authentic sources for judicial notice 289 
 
 Appointment for each general or special court-martial 31a ; 
 
 A. W. 11 
 
 Arrest by court or president, not subject to 89 
 
 As associate counsel of accused 107b, 196 (note) ; A. W. 17 
 
 Assistant. (See Assistant defense counsel.) 
 
 Challenge, not subject to 107f, 120 
 
 Clerks or orderlies for 107g 
 
 Closed sessions, not present at ; duties in open court 101 
 
 Commanding officer to make recommendations as to chang- 
 ing, etc 7 (a) 
 
 Consulted in preparation of court-martial record 355 
 
 Depositions taken upon oral interrogatories, presence ISli(c) 
 
 Examination of order of reference for trial required 97 
 
 Excuse from attendance at court 107i 
 
 Excuse from part In trial, when allowed 107b 
 
 Excuse on account of interest or hostility 107f 
 
 Expert, duties relating to employment of 192 
 
 Freedom of expression to the court, limits 107e, 291 
 
 General duties enumerated 107b 
 
 Informing court as to member being accuser or witness 129 
 
 Interview with accused and witnesses, right of 110 
 
 Investigation of charges, when permitted at 76a(3) 
 
 Legal advice or assistance obtained in open court 107d 
 
 Legal adviser of court, with trial judge advocate 107d 
 
 Not challengeable ; relief in certain cases 107f 
 
 Plea of guilty, requesting explanation of 99 
 
 Preparation for trial ; excuse from other duties 109a 
 
 Presence or absence at opening and after recess, in record- 84, 
 
 357(b)(37,38) 
 
 Process to obtain witnesses, request for 159 
 
 Questions in writing, when required 111 
 
 Record to note name, presence, absence, etc 357 (b) (7-9, 11) 
 
 Rehearing; detail preferable of same 377a(note2) 
 
 Rehearing, rights as to record, etc., on 377a 
 
 Relation to individual counsel 108,109; A. W. 17 
 
 Revision proceedings, presence at 352 
 
 Selection, rank 107a 
 
 Term as including assistants 1071 
 
 Where seated in court - 83 
 
 Whole truth to be presented by 107c 
 
 Witnesses designated by, summoned 161 
 
 Definitions : 
 
 Abandon 42o, p. 378 
 
 Abuse 438 
 
INDEX. 715 
 
 I References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Definitions Continued. . Par. 
 
 Accuser 17, 22 
 
 Additional charges : 73 
 
 Appointing authority 369 
 
 Arrest 46c ; A. W. 69 
 
 Arson 443, p. 416 
 
 Articles of War, for purposes of 4, 8 ; A. W. 1 
 
 Assault 443, p. 440 
 
 Assault with a dangerous weapon, etc 443, p. 447 
 
 Assault with intent to commit a felony 443, p. 439 
 
 Assault with intent to commit manslaughter 443, p. 444 
 
 Assault with intent to commit rape 443, p. 444 
 
 Assault with intent to commit sodomy 443, p. 445 
 
 Assault with intent to do bodily harm 443, p. 447 
 
 Assault with intent to murder 443, p. 443 
 
 Assault with intent to rob 443, p. 445 
 
 At or near 74 (g) 
 
 Attempt 417 
 
 Attempt to create a mutiny or sedition 417 A. W. 66 
 
 Attempt to desert I 409 A. W. 58 
 
 Attempt to strike noncommissioned officer 416 A. W. 65 
 
 Attempt to strike superior officer 415 A. W. 64 
 
 Battalion 4 (note), A. W. 1 
 
 Beginning a mutiny : 417 
 
 Battery 443, p. 442 ; 446, p. 464 
 
 Breaking 443, p. 418 
 
 Burglary # 443, p. 418 
 
 "Capital case," under A. W. 12 263 
 
 Capital case, under A. W. 27 272 (note) 
 
 Causing a mutiny 417 
 
 Certificate 443, p. 433 
 
 Challenge to fight a duel 441 
 
 Character evidence 257 
 
 Charge 61 
 
 Charges 61 
 
 Circumstantial evidence 202(3)203 
 
 Closed session 91 
 
 Clothing 434 
 
 Collateral facts 259 (note) 
 
 Commander of guard 421-422 
 
 Commanding officer 418,422,424 
 
 Commanding officer for the time being 374 
 
 Commanding officer, with reference to court of inquiry.. 448 
 Commanding officer, with reference to summary court- 
 martial ,26 
 
 Company 4 (note), A. W. 1 
 
716 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Definitions Continued. Par. 
 
 Concealment 405 
 
 Conduct unbecoming officer and gentlemen 445 
 
 Confinement 218 
 
 Constructive breaking 443, p. 419 
 
 Constructive condonation 151 
 
 Constructive contempt 173 (c) 
 
 Contempt 173 (c) 
 
 Contemptuous words 413 
 
 Corpus delicti 225 (a) 
 
 Corroborative evidence 248 
 
 Counsel for the accused 196 (note) 
 
 Countersign 427 
 
 Credibility 256 
 
 Dangerous weapon :_ 443, p. 447 
 
 Declaration 443, p. 433 
 
 Delay 418 
 
 Deposition 443, p. 433 
 
 Depredation 439 
 
 Desertion 284 ( a ) 409 ; A. W. 28, 29, 58 
 
 Detached battalion 28 
 
 Detached unit 28 
 
 Detachment 28 
 
 Direct contempt 173 (c) 
 
 Direct evidence . 202 
 
 Discovered 411 
 
 " Dismissal of an officer " case, under A. W. 27 272 (note) 
 
 Disobedience '. 415 
 
 Disorder 419 
 
 Disrespectful behavior 414 
 
 Disrespectful words 413 
 
 Double questions 254 (b) 
 
 Drunk 74 
 
 Drunkenness 435 
 
 Duel 441 
 
 Duty 435 
 
 Dwelling house 443, p. 418 
 
 Embezzlement 443, p. 431 
 
 Enemy 425, p, 377 ; 431 
 
 Exciting a mutiny 417 
 
 Execution of office 416 
 
 Expert witness * 218 
 
 False writing 443, p. 436 
 
 Felony under Penal Code 337 
 
 Forgery 443, p. 435 
 
 Found drunk on duty ._ 435 
 
INDEX. 717 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Definitions Continued. Par. 
 
 Fraudulent enlistment 149(3) (f), 405 
 
 Fray 419 
 
 General prisoner 74 (j) 
 
 Hearsay rule 221 
 
 In the military service of the United States 9 
 
 Indirect evidence 202 
 
 Interested 437 
 
 Interlocutory questions 89a(5) 
 
 Joining in 417 
 
 Joint offense 69 
 
 Judicial notice 289 
 
 Jurisdiction of a court-martial 32 
 
 Knowingly 406 
 
 Knowledge 441 
 
 Larceny 443, p. 424 
 
 Law of the District of Columbia ! 338 (c) 
 
 Lawful order 415 
 
 Leading question 254 
 
 Legal record of a court-martial 355 
 
 Loss - 433, 434 
 
 Malice 442, p. 410 
 
 Malice aforethought 442, p. 410 
 
 Manslaughter 443, p. 414 
 
 Martial law as applied to Army 2(c) 
 
 Martial law at home 2(b) 
 
 Material evidence 202 
 
 Mayhem 443, p. 416 
 
 Military Government 2 (a) 
 
 Military law 2(d) 
 
 Misappropriation 444, p. 457 
 
 Misbehavior 425, p. 377 
 
 Misrepresentation 197 
 
 Mitigation of punishment 380 
 
 Motion to sever 156 
 
 Murder 442, p. 408 
 
 Muster 407 
 
 Mutiny 417 
 
 Negligence 423 
 
 Nolle prosequi 158 
 
 Oath 443 
 
 Officer 4 (note), A.W.I 
 
 Officer commanding for the time being 374 
 
 On duty 435 
 
 On or about 74 (g) 
 
 21358 20 46 
 
718 INDEX. 
 
 [References, are to paragraphs, except that the letter " p " indicates page, 
 "A. W." Indicates Articles of War, and M App." Indicates Appendix.] 
 
 Definitions Continued. Far. 
 
 Pardon 150 
 
 Parole 427 
 
 Perjury 443, p. 433 
 
 Person (as spy) 432 
 
 Persumption of fact 278 
 
 Presumption of law 277 
 
 Pretense 415 
 
 Previous conviction 307 
 
 Prima facie evidence 279 
 
 Prisoner 421, 422, 423 
 
 Privileged communications 227 
 
 Prosecutor 17, 22 
 
 Provoking speeches and gestures 440 
 
 Quarrel 419 
 
 Rape 442, p. 411 
 
 Reasonable doubt 288 
 
 Relevant evidence 202 
 
 Relieves (the enemy) 431 
 
 Reproachful speeches and gestures 440 
 
 Res gestre 223 
 
 Reviewing authority 369 
 
 Riot 439 
 
 Robbery 443, p, 422 
 
 Routine duty 66 
 
 Safeguard 428 
 
 Scandalous and disgraceful offenses 74 (m) 
 
 Sedition 417 
 
 Sentinel 436 
 
 Sentinel's post 436 
 
 Soldier 4 (note), A. W. 1 
 
 Specification 61 
 
 Spoil 439 
 
 Spy 432 
 
 Statute of limitations 149 
 
 Suffering loss, etc., of military property 433 
 
 Superior officer 414 
 
 Testimonial evidence 202, 207 
 
 Threat, under A. W, 68 419 
 
 Trespass 443, p. 430 
 
 Trial 149 (3c) 
 
 Tried 149 (3c) 
 
 Unlawfully (in definition of murder) 442, p. 408 
 
 Voluntary confession 225 (b) 
 
 Waste 439 
 
 Weapon, dangerous 443, p. 447 
 
INDEX. 719 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Definitions Continued. Par. 
 
 Willful 405 
 
 Willful disobedience 415 
 
 Willful injury 434 
 
 Willful loss 433, 434 
 
 Definitions of crimes and offenses under A. W. 92 and 93 442, 443 
 
 Degrading questions, can be asked if material; distinguished 
 from incriminating questions \ 233 
 
 Delay. (See Unnecessary delay.) 
 
 Delegation of powers: 
 
 Of disciplinary powers, not permitted . 333 
 
 Of power to appoint courts-martial, not permitted 18 
 
 Delivering less than amount called for by receipt, definitions, ex- 
 amples, proof 444, p. 454 ; A. W. 94 
 
 Delivery of offenders to civil authorities. (See Civil authori- 
 ties.) 
 
 Dental treatment, refusal to submit to; an offense, procedure 
 if doubt L 68 
 
 Department. ( See Military department.) 
 
 Deposit of pay : 
 
 Court-martial can not adjudge forfeiture 326 
 
 Desertion forfeits principal and interest 326 
 
 Depositions (see also Former testimony) : 
 
 Admissible under A. W. 25, when 263 
 
 Admissibility as evidence; same rules applicable, lead- 
 ing questions 265, 268 (note) 
 
 Affidavits not taken as, not admissible unless expressly 
 
 consented to 269 
 
 Before whom taken 137, 175 ; A. W. 26 
 
 Capital case, adduced for defense only 165, 174 ; A. W. 25 
 
 Case before special court-martial under A. W. 25 
 
 not " capital " 263 
 
 Certain officers authorized to take, under R. S. 188 138 
 
 Civilian witness in confinement 167 ; A. W. 25 
 
 Competency of witnesses, same rules applicable to 265 
 
 Courts of inquiry, same rules as for courts-martial 468; 
 
 A. W. 25, 26 
 
 Delayed, how traced 178 
 
 Designation of proposed deponent by official title 179 
 
 Examination before trial by accused or counsel 266 
 
 Fees of civil officers, law of place determines. 181 
 
 For defense in capital cases; cross-examination permitted- 264 
 
 Foreign country, taking in; procedure 182 
 
 Form for App. 17 
 
 Interrogatories, form for App. 17 
 
 Interrogatories, procedure for submitting 176 
 
 Interrogatories, voucher and subpoena to accompany 177 (c) 
 
720 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Depositions Continued. Par. 
 
 Interrogatories, when taken upon oral ; procedure 174a, 181i 
 
 Notation in records as to receipt, how offered, appending, 
 
 etc 357(b) (31) 
 
 Objections; method of making 265, 268 (note) 
 
 Offering in part ; procedure, court may direct reading 268 
 
 Officer designated to take, may administer oaths_ 138 (b) A. W. 114 
 
 Perfunctory examination to be prevented 181 (d) 
 
 Procedure at trial as to introduction of 267, 268 
 
 Procedure to obtain, in general, prescribed 174-182 
 
 Receipt and presentation of accomplished, with vouchers- 181 (e) 
 
 Responsiveness, care to secure 180 
 
 When admissible 174; A. W. 25 
 
 Depredation. (See Committing depredation or riot.) 
 
 Deprivation of privileges, sentence of, continuous, exceptions 401 
 
 Descriptive and assignment card : 
 
 Not original paper nor admissible in evidence as such 238a 
 
 Desertion : 
 
 Absence without leave, included offense 377 
 
 Absence without leave, presumption from continuing 284 
 
 Advising, aiding, etc., desertion; analysis and proof of of- 
 fense 410 ; A. W. 59 
 
 Advising, aiding, etc., desertion ; capital offense in war time_ 41 ; 
 
 A. W. 59 
 
 Analysis and proof of offense 409 ; A. W. 58 
 
 A. W. 28, a rule of evidence and not a punitive article 74 (n) 
 
 284(a) 
 
 As joint offense, proof necessary _ 69 
 
 Attempt to desert ; analysis and proof of offense 409 ; A. W. 58 
 
 Attempt to desert; forms for specifications App. 6(21,22) 
 
 Attempt to desert, included offense 377 
 
 Attempt to desert; nature of intent should be shown 409 (note) 
 
 Authority of citizen to arrest deserters 59 
 
 Authority of civil officer to arrest deserters-, 58, A. W. 106 
 
 Capital offense in time of war; punishable as court may 
 
 direct in peace ; Executive order 41 ; A. W. 58 ; p. 277 
 
 Constructive condonation in bar of trial 151 
 
 Conviction of, confirmation by whom required 378 (d) A. W. 48 
 
 Corpus delicti established by proof of desertion 225 (c) 
 
 Definitions and principles . 409 
 
 Disapproval of conviction ; grounds to be stated, purpose 388 
 
 Distinct and specific intent, independent of act, essential 280 
 
 Drunkenness as showing lack of intent 286 
 
 During trial, no effect on jurisdiction of court 36 
 
INDEX. 721 
 
 [References are to paragraphs, except that the letter " p ** Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Desertion Continued. Par. 
 
 Effect of honorable and dishonorable discharges on charge 
 
 of 38 (e) 
 
 Entertaining and retaining of deserter by officer 411 ; A. W. 60 
 
 Evidence to prove 284 
 
 Finding or pleading absence without leave under charge of 
 
 298, 300 
 
 Followed by fraudulent enlistment 74 (n) ; 284, 409, A. W. 29 
 
 Forfeiture of deposits 326 
 
 Forms for specifications App. 6(15-24) 
 
 Fraudulent enlistment, joinder with charge of 74 (n) 
 
 Hearsay evidence, instance of, in trial for : 221(1) 
 
 In peace time; three-year limitation 149(2) 
 
 In war time; no limitation of time 149(2) ; A. W. 39 
 
 In war time, penitentiary offense ; rule to be applied 40, 
 
 338 ; A. W. 42 
 
 Intent not expressed in A. W. 58 but to be proved 281 
 
 Joint offense, when chargeable as 69 
 
 Minor may be arrested and tried for : 60 
 
 Morning report, entries in, as proof of absence without leave. 284 
 Officer quitting post before resignation accepted, a deserter. 281, 
 
 284(a); A.W.28 
 
 Payment of reward for deserter no proof of intent 284 
 
 Repeated, in time of peace, penitentiary offense; rule to 
 
 be applied 40, 338, 396 ; A. W. 42 
 
 Requisite intent one of three enumerated kinds 281 
 
 Retaining a deserter. (See Retaining a deserter.) 
 
 " Short desertion " principle adopted in A. W. 28_ 284 (a) (3) ; 409 
 
 Statutory rules, in certain cases, as to 284 (a) ; A. W. 28 
 
 Time lost to be made good . 38 (note) ; A. W. 107 
 
 Trial for, after trial for absence without leave 149(3) (2) 
 
 Unsustained charge prevents stoppage of pay to collect 
 
 reward paid 329 
 
 War Department policy regarding punishments for 340 
 
 Destruction of records before action of reviewing authority 368 
 
 Detached enlisted men part of Regular Army 4 (a) (note a) 
 
 Detached officers part of Regular Army 4(a) (note a) 
 
 Detachment : 
 
 Commanding officer's summary court powers, although part 
 
 of brigade 29 
 
 From command, effect on power to appoint general courts- 
 martial 18 
 
 General courts-martial ; when appointed for 14 ; A. W. 8 
 
 Special courts-martial ; when appointed for 21 ; A. W. 9 
 
 Summary courts-martial ; when appointed for 25 ; A. W. 10 
 
 Term denned a*nd discussed 28 
 
722 INDEX. 
 
 [References are to paragraphs, except that tb letter ** p ** Indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Detention of pay: Par. 
 
 Executive order limiting amount. p. 283 
 
 Forfeiture of pay may be mitigated to 382 
 
 Found to be effective punishment 342 
 
 In whole or part; Executive order ; A. W. 14 ; policy of War 
 
 Department 328, 349 ; A. W. 14 
 
 In whole or part, legal sentence for officers 310 
 
 In whole or part, legal sentence for soldiers 311 
 
 Paid at time of discharge p. 286 (VIII) 
 
 Summary court limited to two-thirds of one month's pay 44 ; 
 
 A. W. 14 
 
 Direct evidence defined 202 
 
 Direct examination. (See Witnesses.) 
 
 Disapproval of sentence, effect of. (See also Sentence.) 372 (a) 
 
 Discharge : 
 
 Accused found abnormal mentally 76 (b) 
 
 (6,10); 76(c)(2); 76(note) 
 
 Before expiration of term, methods stated 320 ; A. W. 108 
 
 Certificate to be furnished enlisted man of A. W. 108 
 
 Dishonorable. (See Dishonorable discharge.) 
 
 Habeas corpus. (See Habeas corpus.) 
 
 Liability of officer for embezzling certain funds continues 
 
 after 444, p. 459 ; A. W. 94 
 
 Liability to trial by court-martial after ; cases enumerated 38 
 
 Obtained by fraud; cancellation, punishment 38(d) 
 
 Officer discharged under selective service act not entitled 
 to trial 38(b)(note) 
 
 Disciplinary barracks : 
 
 As place of confinement in place of penitentiary. 396, 397 ; A. W. 42 
 
 Clemency applications in case. of prisoners in 402 
 
 Propriety of designating as place of punishment discussed- 342a 
 
 Remission of suspended sentences by Secretary of War_ 392, 
 
 393; A.W.52 
 Treatment of deserters at 340 
 
 Disciplinary battalion : 
 
 Assignment to, as mitigated punishment 382 
 
 Assignment to, legal sentence for soldier 311 
 
 Disciplinary punishment : 
 
 Commanding officer may treat charges as involving case 
 
 only for 76a(2, 4, 7, 11, 12) 
 
 Disposal of case after charges received under A. W. 104 76a 
 
 (2, 4, 7, 11, 12) 
 
 Exercise of power an exercise of military jurisdiction 3(c) 
 
 Powers of commanding officer enumerated and discussed 333 ; 
 
 A. W. 104 
 Prison discipline, matters of, named * . 345 
 
USTDEX. 72 3 
 
 [References are to paragraphs, except that the letter "p** Indicates page, 
 "A. W." indicates Artietes of War, and " App." Indicates Appendix.] 
 
 Disciplinary punishment Continued. Par. 
 
 Sentence of general prisoner not to interfere with prison 
 
 discipline 330 
 
 Discovered, defined as to discovery that soldier a deserter 411 ; 
 
 A. W. GO 
 
 Discredit, conduct teading to bring, etc. (See Conduct of a na- 
 ture to bring discredit tipan the military service.) 
 Discretionary sentence. (See Sentence.) 
 
 Disgrace to service, how pleaded _, 74 (m) 
 
 Disguise, presumption of fact arising from 218 
 
 Dishonorable discharge: 
 
 Clemency power not affected by d 402 
 
 Executive order as to propriety of adjudging p. 285 (VII) 
 
 Forfeiture of pay and allowances not implied from 324 
 
 General cpurt-martial only may impose 320; A. W. 108 
 
 Legal sentence for soldiers-., 311 
 
 Not suspended; sentence requires prior action of board of 
 
 review and! Judge Advocate General 371; A. W. 50i 
 
 On account of previous convictions _ p. 284 
 
 Procedure where insufficient votes to adjudge mandatory. 309 
 
 (note 2) 
 
 Releases from all military offenses in any enlistment ; ex- 
 cept A. W. 94 38 (e) 
 
 Review by board of review and Judge Advocate General of 
 
 cases 399a ; A. W. 50* 
 
 Sentence may be commuted but not mitigated if providing 
 
 only , 382 
 
 Sentence providing, with other punishments, may be miti- 
 gated, how ' 382 
 
 Special court-martial can not adjudge 42 ; A. W. 108 
 
 Summary court-martial can not adjudge 44 ; A, W. 108 
 
 Suspension. (See Suspension of sentence.) 
 
 To take effect at date during confinement to be designated, 
 
 illegal 320 
 
 Dismissal : 
 
 Clemency power not affected by_ 402 
 
 Conviction under A. W. 95 precludes any other punishment- 312 
 
 For what offenses mandatory , 40 (note.) ; A. W. 95 
 
 Forfeiture of pay and allowances not implied from 324 
 
 Legal sentence, with or without confinement, for officers 310 
 
 Liability of officer for embezzling certain funds continues 
 
 after 444, p. 459 ; A. W. 94 
 
 Liability to trial by court-martial after ; cases enumerated- 38 
 No case referred to special court-martial is a case extending 
 
 to, under A. W. 27 272, 
 
724 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Dismissal Continued. Par. 
 
 Not suspended; sentence requires prior action of board of 
 
 review and Judge Advocate General 371 ; A. W. 50$ 
 
 Of cadet, confirmation by President required 378 (c) 
 
 Of charges, on investigation 76a(l, 6, 11, 12), 
 
 76b(l,6,10),76c(2, 3), 76 (note) 
 Of officer ; confirmation by President in time of peace ; rule 
 
 in time of war 378 (b) ; A. W, 48 
 
 Of officer for cowardice or fraud, publication thereof 347 ; 
 
 A. W. 44 
 
 Of officer, for disrespect toward President, Congress, gov- 
 ernors, etc : 413 ; A. W. 62 
 
 Of officer, in time of peace, only by sentence of court-mar- 
 tial 38 (b) (notes) ; A. W. 118 
 
 Of officer, special court-martial can not adjudge 42 ; A. W. 118 
 
 Of officer under A. W. 95, no additional punishment allow- 
 able 312 
 
 Of officer under R. S. 1230; right to court-martial 15, 38 (b) 
 
 Of officer under R. S. 1230; decision of Court of Claims. 15 (note) 
 
 Procedure where insufficient votes to adjudge mandatory 309 
 
 (note 2) 
 Promotion of member by dismissal of accused, ground for 
 
 challenge 121 
 
 Review by board of review and Judge Advocate General of 
 
 cases involving 399a;A. W. 50 
 
 Voting on mandatory penalty of 308 
 
 Disobedience of orders : 
 
 Failure to obey included in willful disobedience of superior 
 
 officer or of noncommissioned officer 377 
 
 Of officer, because of ignorance of officer's status, as de- 
 fense 283 
 
 Of president of court-martial, not chargeable under A. W. 
 
 64 but under A. W. 96 89 
 
 Of superior officer ; analysis and proof of offense ; definitions 
 
 and principles 415 ; A. W. 64 
 
 Of superior officer; capital offense at all times 41; A. W. 64 
 
 Of superior officer; drunkenness as defense 286 
 
 Of superior officer; form for specifications App. 6(34) 
 
 Of warrant or noncommissioned officer ; analysis and proof 
 
 of offense; definitions and principles 416; A. W. 65 
 
 Of warrant or noncommissioned officer ; forms for speci- 
 fications *. . App. 6 
 
 Disobedience of orders into arrest or confinement : 
 
 Analysis and proof of offense 419 ; A. W. 68 
 
 Forms for specifications App. 6(43) 
 
 Principles and definitions 419 
 
INDEX. 725 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 44 A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Disorderly conduct: P ar . 
 
 Contempt by military person may be charged as 173 (d) 
 
 When consisting of assault not to be punished in both 
 
 aspects 66 
 
 Who may quell disorders, etc., of military persons.. 419 ; A. W. 68 
 Disorders and neglects to the prejudice of good order and mili- 
 tary discipline: 
 
 Definitions and principles, instances, proof 446, p. 461 ; A. W. 96 
 
 Forms for specifications App. 6 
 
 Intent to neglect duty as inferable from act 280 
 
 Members of court-martial liable for inattention, etc., for 
 
 neglect of duty ^ 86 
 
 No negligence where no duty 443, p. 415 
 
 Disqualification of member. (See Challenge.) 
 Disrespect toward President, etc. : 
 
 Analysis and proof of offense 413 ; A. W. 62 
 
 Definitions and principles 413 
 
 Form for specification , App. 6(29) 
 
 Disrespect toward superior officer : 
 
 Analysis and proof of offense 414 ; A. W. 63 
 
 Definitions and principles 414 
 
 Drunkenness as showing lack of knowledge or intent 286 
 
 Form for specification App. 6(30) 
 
 District : 
 
 Coast Artillery; commanding officer's duties where officer 
 
 arrested without charges preferred 50 
 
 Commanding officer may appoint special courts-martial_21 ; A. W. 9 
 Commanding officer may be empowered to appoint general 
 
 courts-martial 14 ; A. W. 8 
 
 District attorney, United States: 
 
 Action on constructive attempts of courts-martial, etc 173 (c) 
 
 Duty to prosecute recalcitrant witnesses before courts- 
 martial 170 ; A. W. 23 
 
 Findings of inquest, when transmitted to 483 ; A. W. 113 
 
 Trial of certain suits against military persons removed 
 
 from State courts 484 ; A. W. 117 
 
 District of Columbia: 
 
 As source of definitions for offenses under A. W. 92 and 
 
 93, after Penal Code 442, p. 408 
 
 Code of, as guide for penitentiary sentence and duration 
 
 of same *- 40, 338 ; A. W. 42, 45 
 
 "Law of," defined 338 (c) 
 
 Division : 
 
 Dismissal of officers in time of war, confirmation by com- 
 manding officer of 378 (b) ; A. W. 48 
 
726 INDEX. 
 
 [References are to paragraphs, except that th letter ** p " indicates page, 
 " A. W." Indicates Artieles of War, and " App." indicates Appendix.] 
 
 Division Continued. Par. 
 
 Mitigation or remission of sentences, when by commanding 
 officer of 381 ; A. W. 50 
 
 Report to commanding general of habeas corpus in attach- 
 ment proceedings 169 (a) 
 
 Tactical division commander may appoint general courts- 
 martial 14 ; A. W. 8 
 
 Territorial division commander may appoint general 
 
 courts-martial 14; A. W. 8 
 
 Documentary evidence : 
 
 Authenticated copies of documents at certain headquarters, 
 
 admissible 238 
 
 Authentication, as fundamental rule 23Ga 
 
 Authentication of writings, method of 239 
 
 Before special courts, what and when appended to record. 358 (c-f) 
 Books of account; use, conditions, refreshing recollection, 
 
 originals 244 
 
 Bulky reports not appended to record; procedure pp. 564(9) ; 
 
 650(5) 
 
 Court of inquiry, record of, when and where admissible 272, 475 
 
 Exceptions to hearsay rule enumerated 221a 
 
 Expenses of obtaining certified copies, how paid 193 
 
 Four fundamental rules in use of, enumerated 23Ga 
 
 Handwriting comparison, statutory rule governing courts- 
 martial 240 
 
 Improper, rejected by court on own motion 202a 
 
 Investigation of charges, consideration upon 76a(3, 8, 10, 11) 
 
 Listed on charge sheets; appending of originals or 
 
 copies p. 563(4) 
 
 Manner of proving contents of writing 237 
 
 Maps, photographs, sketches, etc 245 
 
 Memoranda; kinds, use, proof, refreshing recollection 241-243 
 
 Memorandum of, forwarded with charges 75 
 
 Official documents not appended to record, procedure, pp. 564(9) ; 
 
 650(5) 
 
 Official documents recording certain facts admissible 238a 
 
 Official report not admissible because of that fact alone. 238 (note) 
 
 Originals 197 
 
 Pardon as basis of plea in bar, how proved 273 
 
 Procedure to obtain; subpcena duces tecum 166 
 
 Procedure where original consists of numerous writings 237, 
 
 2S7 note 
 
 Production of official documents in court 237 
 
 Production of original, as fundamental rule 236a 
 
 Public records; originals not required to be produced, 
 
 reason ___ 238 
 
INDEX. 727 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Documentary evidence Continued. Par. 
 
 Record of conviction necessary to impeach witness denying 
 
 same 258 
 
 Record of general court-martial, noted in: 357(b) (31, 32) 
 
 Strict proof of undisputed writings not ordinarily re- 
 quired 236b 
 
 Testimonial status to be given writing, as fundamental 
 
 rule 236u 
 
 War Department and Army records; when copies ad- 
 missible 238 
 
 Witness, procedure to obtain from civilian 166 
 
 Double jeopardy. (See Former jeopardy.) 
 
 Double questions : 
 
 Defined; examples 254 (b) 
 
 Draft : 
 
 Officer, drafted, eligible for membership on court-martial 9(c) 
 
 Persons subject to Articles of War under 4(a), 
 
 4(a)(noteg), A.W. 2(a) 
 
 Drawing weapon, etc., on order into arrest or confinement: 
 
 Analysis and proof of offenses 419 ; A. W. 6-8 
 
 Definitions and principles 419 
 
 Forms for specifications App. 6(43) 
 
 Dropping from rolls : 
 
 Liability under A. W. 94 for embezzlement of certain 
 
 funds continues after 444, p. 459 ; A. W. 94 
 
 Of officer absent three months; effect, R. S. 1230 38(b) 
 
 (note 3) ; A. W.I 18 
 
 Drunk on duty : 
 
 Analysis and proof of offense 435 ; A. W. So 
 
 Definitions and principles 435 
 
 Drunkenness, a lesser included offense 377 
 
 Form for specification App. 6(76) 
 
 Intent inferable from act 280 
 
 "On duty" defined, under A. W. 85 435 
 
 Drunk on post : 
 
 Analysis and proof of offense 436; A.W. 86 
 
 Definitions and principles 435, 436 
 
 Form for specification App. 6(77) 
 
 No statutory intent described in A. W. 86 nor to be alleged 281 
 
 Drunkenness : 
 
 As a defense; discussed, examples 285 
 
 As a defense in military cases 286,435 
 
 As violation of A. W. 95 445 
 
 As violation of A. W. 96 446, p. 462 
 
 Being drunk an Included offense under drunkenness on duty 377 
 
 " Drunk " defined 304 
 
 Manner of proof; direct question; describing conduct 287 
 
728 INDEX. 
 
 [References are to paragraphs, except tliat. the letter " p " Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Drunkenness Continued. Par. 
 
 May result from use of intoxicating drugs 286 
 
 Substitutes for word " drunk " not to be used iu charges or 
 
 findings 74(b) , 304 
 
 Duelling : 
 
 Being concerned in or conniving at duel ; offense described, 
 
 penalty, forms 441; A. W. 91; App. 6(91) 
 
 Failing to report knowledge of challenge ; offense described, 
 
 penalty, forms 411; A. W.91; App. 6 (91) 
 
 Fighting or promoting a duel; offense described, penalty, 
 
 forms 441 ; A. W. 91 ; App. 6(87) 
 
 Duty: 
 
 Acts in performance of, as justification or excuse for 
 
 homicide 442, p. 408 
 
 Drunk on. (See Drunk on duty.) 
 
 Restoration to, as condonation of desertion 151 
 
 Restoration to, during suspension 392 ; A. W. 52 
 
 Suspension from, effect 316 
 
 Duty, neglect of. (See Disorders and neglects, etc.) 
 Dying declaration: 
 
 Exception to hearsay rule in murder and manslaughter; 
 
 discussed 221a ( 1 ) , 222 
 
 Election, motion to require not permitted J. 157 
 
 Embezzlement : 
 
 Analysis and proof ; penalty 443, pp. 413, 430 ; A. W. 93 
 
 By former officer of funds of company, etc., or of enlisted 
 
 men ; limitations and proof 444, p. 459 ; A. W. 94 
 
 Definitions and principles 443, p. 413 
 
 Forms for specifications App. 6(102, 103) 
 
 Larceny distinguished 443, p. 431 
 
 Limitation of three years 149(2) 
 
 Of military property ; defined, proof 444, p. 457 ; A. W. 94 
 
 Presumption from possession of embezzled articles 278 
 
 Enemy : 
 
 Attempting to relieve; analysis and proof of offense, pen- 
 alty 431 ; A. W. 81 
 
 Giving intelligence to; analysis and proof of offense, pen- 
 alty 431 ; A. W. 81 
 
 Harboring or protecting ; analysis and proof of offense, pen- 
 alty 431 ; A. W. 81 
 
 Military government exercised over territory of 2 (a) 
 
 Misbehavior before ; offense defined, proof, penalty 425, p. 378 ; 
 
 A. W. 75 
 
 Relieving ; analysis and proof of offense, penalty 431 ; A. W. 81 
 
 Relieving, corresponding with, etc., or so attempting, capital 
 offense in time of war 41 ; A. W. 81 
 
INDEX. 729 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Engineer train, when a detachment for disciplinary purposes 28 
 
 Enlisted men (see also more specific titles) : 
 
 Funds of, embezzlement by former officer an offense__ 444, p. 459 ; 
 
 A. W. 94 
 
 Included under word " soldier " 4(notes 1, 2) ; A. W. 1 (b) 
 
 Reporter for court-martial, etc., detail of soldier as 115 
 
 Reporter for court of inquiry 457 
 
 Retired, subject to military law 4 (a) ; A. W.2 
 
 Sentences which may be imposed on soldiers enumerated 311 
 
 Soldier holding certificate of eligibility to promotion may 
 
 be sentenced to loss of privileges 311 
 
 Soldier holding certificate of eligibility to promotion not 
 
 subject to summary court-martial 43 ; A. W. 14 
 
 Soldiers of Regular Army subject to Articles of War 4 (a) ; 
 
 A. W.2 (a) 
 Enlisted Reserve Corps when on active duty subject to Articles 
 
 of War 4(a)(notef) 
 
 Enlistment : 
 
 After dishonorable discharge does not revive prior offenses. 38 (e) 
 Fraudulent. (See Fraudulent enlistment.) 
 
 Illegal, how pleaded 152 (b) 
 
 Original enlistment paper admissible without calling offi- 
 cer making 238a 
 
 Time lost to be made good 38 (e) (note) ; A. W. 107 
 
 Trial after expiration of term for offenses during 38 (e) (note) 
 
 Trial after expiration of term for offenses while making 
 
 good time 38 (e) (note) ; A. W. 107 
 
 Unlawful by officer 
 
 Analysis and proof of offense 406 
 
 Definitions and principles 406 ; A. W. 55 
 
 Forms for specifications App. 6(5) 
 
 Must be " knowingly " made 281 
 
 Entry into service as subjecting entrant to Articles of War 4 (a) ; 
 
 A. W.2 (a) 
 
 Equivalent punishments, table of 349 
 
 Errors, list of common % App. 27 
 
 Errors not invalidating trial 376a ; A. W. 37 
 
 Escape : 
 
 Acts and statements of conspirator in furtherance of 224 
 
 Does not divest court, during trial, of jurisdiction 36 
 
 From arrest or confinement. (See Arrest; Confinement.) 
 Suffering or permitting. (See Suffering a prisoner to 
 
 escape. ) 
 Espionage. (See Spying.) 
 
730 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page. 
 "A. W." Indicates Articles of War, and "App." indicates Appendix.] 
 
 Evidence : Par. 
 
 (In connection urith a particular subject, see the specific 
 title.) 
 
 Admissibility ; rulings by law member 89a ; A. W. 31 
 
 Admissibility ; rulings by president of court 89 ; A. W. 31 
 
 Aider of defective specification 158a 
 
 Analysis by trial judge advocate and counsel 196 
 
 A. W. 28 not a punitive article but prescribes rule of_ 74 (n) ; 284 (a) 
 
 Circumstantial, denned and explained 202(3), 203 
 
 Circumstantial, illustration of difference between admis- 
 sible and inadmissible 204 
 
 Corroboration. (See Corroboration. ) 
 
 Documentary evidence. (See Documentary evidence.) 
 
 Duties, in general, of court in consideration of 197 
 
 Findings preclude taking of further 297 
 
 General remarks concerning 194, 195 
 
 Identification of accused. (See Identification of accused.) 
 
 Improper, should be rejected by court on own motion. 202a 
 
 Indirect, defined and explained 202(3) 
 
 Irrelevant, inadmissible ; admitting conditionally 202(2) 
 
 Material to the issues; when not material 202(1) 
 
 Objections, reasons for, to be stated 250 
 
 Ortter of proof in presentation of. 196 
 
 Pleading, in specifications, improper; explained; effect 74 (d) 
 
 Record to show whether accused off ered testimony, etc_ 357 (b) (34) 
 
 Relevant to the issues; when not relevant 202(1) 
 
 Res gestae. (See Res gestae.) 
 
 Rules of, applicable irrespective of rank 200 
 
 Rules of, for courts-martial, where found 198, 199 
 
 Statement of accused is not 290, 292 
 
 Suppression of, as creating presumption of guilt 278 
 
 Taking after plea of guilty 154 (c) 
 
 Testimonial; defined, examples 207 
 
 Testimonial knowledge discussed 220 
 
 Testimonial, why classed by itself 202(4) 
 
 Use of texts and State decisions 199 
 
 Variance, procedure in case showing 158b 
 
 Witnesses. (See Witnesses.) 
 
 Exceptions and substitutions: 
 
 Findings varying from specifications as to date or place 74(g) 
 
 Guilty of lesser included offense , 298 
 
 Guilty with; power of court-martial to find- 299 
 
 Required when evidence improperly pleaded 74 (d) 
 
 Substitution of general for specific article in the charge 300 
 
 Excessive sentences, part approval of 386 
 
 Exclamations. (See Res gestae.) 
 
INDEX. 731 
 
 [References are to paragraphs, except tbat the letter " p Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Execution of death sentence. (See also Death sentence.) par. 
 
 Court-martial not concerned with time or place 346 
 
 In presence of troops as example 346 
 
 Manner of execution stated 346 
 
 New date fbred if date passed 346 
 
 Reviewing or confirming authority fixes time and place 346 
 
 Execution of sentence as affected by review of board of review 
 and Judge Advocate General 399a ; A. W. 50} 
 
 Executive order : 
 
 As to maximum punishments, etc. ; when effective 349 
 
 Maximum punishments named therein do not preclude less 
 
 punishments of different kind 309 (note 3) 
 
 Promulgation of Manual for Courts-Martial xxl 
 
 Reference to, to determine what is legal punishment 309 
 
 Expediting trials : 
 
 Duty of; penalty for unnecessary delay 103, 103a, 420; A. W. 70 
 
 Expert: 
 
 Capacity to testify as, discussed 218' 
 
 Employment of, as witness 102 
 
 Extenuation : 
 
 Drunkenness as matter of 285 
 
 Ignorance of articles of war as 282 
 
 Statement of accused as matter of 290 
 
 Statement of accused failing to testify at trial 215 
 
 Statement of accused on investigation 76a 
 
 Extra-duty pay, forfeiture of 324 
 
 Extra fatigue : 
 
 As disciplinary punishment ; one week limit 333; A. W. 104 
 
 Failure to obey standing orders : 
 
 Distinguished from willful disobedience of superior officer. 415 
 
 Failure to plead 155 ; A. W. 21 
 
 Failure to render report of prisoners by commander of a guard : 
 
 Analysis and proof of offense 55 (note), 422 ; A. W. 71 
 
 Definitions and principles 422 
 
 Form for specification App. 6(46) 
 
 False alarms, occasioning 425, p. 381 ; A. W. 75 
 
 False claims against United States: 
 
 Agreement or conspiracy ; defined, proof 444, p. 452 
 
 False oath in connection with claims ; proof. 444, p. 454 ; A. W. 94 
 Forgery, etc., of signature in connection with claims, proof, 
 
 444, p. 454 ; A. W. 94 
 
 Liability to trial by court-martial after discharge or dis- 
 missal 38(a) ; A. W. 94 
 
 Limitation of three years 149(2) 
 
 Making or causing to be made ; defined, proof. 444, p. 450 ; A. W. 94 
 
732 INDEX. 
 
 [References are to paragraphs, except that the letter " p " Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 False claims against United States Continued. Par. 
 Making, using, etc., false writing in connection with; de- 
 fined, proof __r 444, p. 453 ; A. W. 94 
 
 Offenses under A. W. 94 enumerated and classified 444, p. 448 
 
 Presenting or causing to be presented for approval or pay- 
 ment ; defined, proof 444, p. 451 ; A. W. 94 
 
 False muster: 
 
 Analysis and proof of offense 407 ; A. W. 56 
 
 Definitions and principles 407 
 
 Forms for specifications App. 6(6-12) 
 
 Must be made " knowingly " 281 
 
 False returns : 
 
 Analysis and proof of offense 408 ; A. W. 57 
 
 Definitions and principles 408 
 
 Forms for specifications App. 6(13-14) 
 
 False swearing (see also Perjury) : 
 
 Defined and distinguished from perjury 446, p. 463 
 
 False writing. (See Forgery.) 
 
 Falsification of accounts : 
 
 Evidence of similar occurrence, example of 206(4) 
 
 Family history, statements about: 
 
 Exception to hearsay rule; when applicable 221a(3) 
 
 Federal judicial system, courts-martial not part of 33, 33a 
 
 Fees of witnesses. (See Witnesses.) 
 
 Felonious assault. (See Assault, and references there given.) 
 
 Field bakery, when a detachment for disciplinary purposes 28 
 
 Field clerks (Army and Quartermaster Corps) : 
 
 A. W. 55, 56, 67, and 75 not applicable to ; A. W. 96 proper, 
 
 for such offenses 406, 407, 418, 425, p. 380 
 
 Compensation as reporters of courts-martial, etc., not al- 
 lowed 113 (f) 
 
 Excepted from jurisdiction of special and summary courts- 
 martial by G. O. 71, W. D., 1920 p. 656 
 
 False muster, etc. ; A. W. 56 not applicable to 407 
 
 Misbehavior, etc., before enemy ; A. W. 75 not applicable to_ 425 
 Mutiny or sedition, not suppressing, etc., under A. W. 96 and 
 
 not A. W. 67 418 (note) 
 
 Officers, but not commissioned; use of term 4(note2) 
 
 Power to quell frays, disorders, etc. ; penalty 419 ; A. W. 68 
 
 Previous conviction ; 3-year limitation 
 
 Subject to Articles of War 4 (a) ; A. W. 2 (a) 
 
 Summary court-martial, not subject to 43 ; A. W. 14 
 
 Unlawful enlistment, etc. ; A. W. 55 not applicable to 406 
 
 What sentences legal for 310a 
 
 Field signal battalion, when a detachment for disciplinary pur- 
 poses 28 
 
INDEX. 733 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Fifth Amendment (see also Self-crimination) : Par. 
 
 Accused can not be required to admit his statement 225 (note 1) 
 
 Applies to courts-martial, both accused and witnesses' 233 
 
 As a source of military jurisdiction 1 
 
 Compulsory submission to physical examination does not 
 
 violate 236, 236(a) 
 
 Files, loss of: 
 
 How accomplished 313 
 
 Legal sentence for officers 310 
 
 What approval necessary, President need not confirm but 
 
 alone can restore 390 ; A. W. 50 
 
 Finance Department: 
 
 Desertion disapproved, grounds stated for benefit of 388 
 
 Nearest finance officer to tender witness fees and mileage 
 
 172, 177 (c) 
 Payment of all necessary expenses of courts-martial, etc., 
 
 by 193 
 
 Payment of interpreters on certified vouchers 119 
 
 Payment of subpoena fees, appropriation for 191 
 
 Transmittal of effects and money of deceased person to 482 ; 
 
 A. W. 112 
 Findings: 
 
 Approval, powers incident to power of 377 
 
 At close of prosecution's case 158c 
 
 Communication to reporter or clerk improper ; legality un- 
 affected , 305 
 
 Court to be closed for 91 ; A. W. 19 
 
 Evidence can not be taken after 297 
 
 General principles applicable to 297 
 
 Guilty of but one specification supports like finding upon 
 
 charge 297 
 
 Guilty of general and not of specific article 300 
 
 Joint charges; form where both conviction and acquittal 301 
 
 Lesser included offenses 377 (a) 
 
 Of courts-martial 294-305 
 
 Of courts of inquiry 461,469 
 
 Of no criminality, equivalent to acquittal 303 
 
 Of not guilty not to be approved or disapproved but merely 
 
 promulgated in orders 372 (b) 
 
 On summary court record 363 
 
 Reasons for, may be spread upon record 302 
 
 Reconsideration where insufficient votes to sustain manda- 
 tory sentence 309 (note 2) 
 
 Record to show certain facts concerning 357b(40) 
 
 Recording by reporter ; communication to him 305 
 
 Return for reconsideration, when prohibited 352 ; A. W. 40 
 
 21358 20 47 
 
734 INDEX. 
 
 [References are to paragraphs, except that ths letter "p" Indicates page, 
 "A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Findings Continued. Par. 
 
 Voting. (See Voting.) 
 
 With exceptions and substitutions 299 
 
 Fine: 
 
 Accrues to United States and not to an individual 317 
 
 Denned ; alternative of imprisonment 317 
 
 Legal sentence for officers 310 
 
 Finger prints : 
 
 Conditions under which admissible 245 
 
 Original admissible without calling officer making card 238a 
 
 Flight, presumption of fact arising from 278 
 
 Flogging prohibited 344 ; A. W. 41 
 
 Force. (In rape, see Rape. In robbery, Robbery. In sodomy, 
 
 Sodomy. ) 
 Forcing a safeguard: 
 
 Analysis and proof of offense 428 ; A. W. 78 
 
 Capital offense in time of war 41 ; A. W. 78 
 
 Definitions and principles 428 
 
 Form for specification App. 6(63) 
 
 Foreign country: 
 
 Powers of notary public or consuls to certain officers where 
 
 Army is serving in 138 (b) ; A. W. 114 
 
 Procedure to obtain deposition in 182 
 
 Forfeiture : 
 Deposits 
 
 Court-martial can not adjudge forfeiture 326 
 
 Desertion forfeits principal and interest 326 
 
 Pay and allowances 
 
 Accrues to United States and not to an individual 317 
 
 Allowances, without pay, not customary 324 
 
 Class A allotments not forfeitable by court-martial 311 
 
 Class B allotments not forfeitable by court-martial 311 
 
 Deposits of soldier not forfeitable 326 
 
 Executive order limiting amount p. 283 
 
 Extra-duty pay, when not forfeited 324 
 
 Fine distinguished 317 
 
 In whole or part, legal sentence for soldiers 311 
 
 In whole or part, legal sentence for officers 310 
 
 Mitigation to detention of .pay 382 
 
 No forfeiture by implication ; express terms 324 
 
 Not within commanding officer's disciplinary powers; 
 
 exception 333 ; A. W. 104 
 
 Officer's pay as disciplinary punishment, when forfeit- 
 able 333 ; A. W. 104 
 
 Pay does not carry allowances 324 
 
 Power of remission or mitigation extends to un- 
 collected 381 ; A. W. 50 
 
INDEX. 735 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." Indicates Articles of War, and " App." Indicates Appendix.] 
 
 forfeiture Continued. 
 
 Pay and allowances Continued. Par. 
 
 Special court limited to two-thirds per month for not 
 
 over six months . 42 ; A. W. 13 
 
 Summary court limited to two-thirds of one month's 
 
 pay 44 ; A. W. 14 
 
 Forgery : 
 
 Analysis and proof; penalty 443, p. 435 ; A. W. 93 
 
 .Definitions and principles 443, p. 435 
 
 Falsely altering a writing ; proof 443, p. 438 
 
 Falsely making a writing ; proof 443, p. 437 
 
 Forms for specifications App. 6(105, 106) 
 
 In claims against United States 444, p. 454 ; A. W. 94 
 
 Uttering a paper falsely made or falsely altered ; attempt 
 
 to do so ; proof 443, p. 438 
 
 Former jeopardy: 
 
 Action of other than Federal court no bar to trial by court- 
 martial 274 
 
 Advice to accused as to right to plead, in record 149(3) (h) 
 
 Defense must be asserted to take advantage of it 149(3) (g) 
 
 Evidence of former trial by military or civil court, how 
 
 offered . 274 
 
 Former punishment, when having another trial 152 (a) 
 
 Fraudulent enlistment; example 149(3) (f) 
 
 Nolle prosequi is not a pardon or acquittal 158 
 
 Privilege against self-crimination as ceasing 233 (a) 
 
 Punishment as disciplinary measure, in bar or mitigation 333 ; 
 
 A.W. 104 
 Rehearing not allowed on offenses of which found not 
 
 guilty 377a ; A. W. 50* 
 
 Same acts, when trial on is or is not barred 149(3) (d) 
 
 Second trial where offense same but charged under different 
 
 description or article 149(3) (e) 
 
 Trial in either military or civil courts of certain territorial 
 
 possessions 149(3) (d) 
 
 "Tried" denned; cases where person not "tried" 149(3) (c) 
 
 Former testimony (see also Depositions) : 
 
 Before court of inquiry admissible by A. W. 27 if accused 
 
 consents ; exceptions 272, 475 
 
 Before court of inquiry ; same rules applicable as where tes- 
 timony of other courts offered 272 
 
 On rehearing, when admissible 377a 
 
 Former trial: 
 
 As double jeopardy; instances where no defense 149(3) (c) 
 
 Membership on, as ground for challenge 121 
 
736 INDEX. 
 
 {References are to paragraphs, except that the letter " p " Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Forms : Par. 
 
 Action on sentence by reviewing authority App. 15, p. 637 
 
 Brief on return to habeas corpus out of United States court 
 
 in minor's enlistment case App. 22, p. 661 
 
 Charges against general prisoner 74j 
 
 Charges and specifications under Articles of War 74 (f) ; 
 
 App. 6, p. 565 
 
 Charge sheet App. 5, p. 560 
 
 Depositions taken upon interrogatories App. 17, p. 644 
 
 Explanation to accused of his rights as witness App. 9, p. 612 
 
 Explanation to accused of plea of guilty App. 9, p. 611 
 
 Explanation to accused to right to plead statute of limita- 
 tions App. 9, p. 610 
 
 For offenses, use not mandatory 74(f) ; App. 6, p. 565 
 
 General court-martial order App. 16A, p. 641 
 
 General court-martial, order appointing ; App. 3, p. 558 
 
 Habeas corpus out of State court, for prisoner, return to 
 
 writ App. 22D, p. 660 
 
 Habeas corpus out of State court, for witness, return to 
 
 writ App. 22B, p. 658 
 
 Habeas corpus out of Unifed States court, for prisoner, re- 
 turn to writ App. 22C, p. 658 
 
 Habeas corpus out of United States court, for witness, re- 
 turn to writ App. 22A, p. 657 
 
 Inquest, report of App. 26, p. 678 
 
 Interrogatories and depositions App. 17, p. 644 
 
 Law member, for use of App. 9, p. 609 
 
 Pleading change of rank 74k 
 
 Pleading guilty to absence without leave on charge of de- 
 sertion 298 
 
 President of court-martial, for use of App. 9, p. 609 
 
 Record of trial by general court-martial and revision pro- 
 ceedings App. 10, p. 616 
 
 Record of trial by special court-martial App. 11, p. 629 
 
 Record of trial by summary court-martial App. 12, p. 633 
 
 Report of inquest App. 26, p. 678 
 
 Reviewing authority, orders of, vacating suspension of sen- 
 tence App. 15 B, p. 640 
 
 Reviewing authority, original action by App. 15A, p. 637 
 
 Revision of record of general court-martial App. 10, p. 616 
 
 Ruling in open court App. 9, p. 609 
 
 Sentences by court-martial App. 13, p. 634 
 
 Special court-martial order App. 16B, p. 642 
 
 Special court-martial, order appointing App. 4, p. 559 
 
 Subpoena for civilian witness App. 19, p. 651 
 
 Suspension of sentence, orders vacating App. 15B, p. 640 
 
 Synopses of convictions by court-martial App. 7, p. 592 
 
INDEX. 737 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Forms Continued. Par. 
 Voucher for compensation of civilian witness in Govern- 
 ment employ App. 24, p. C70 
 
 Voucher for compensation of civilian witness not in Govern- 
 ment employ App. 23, p. 667 
 
 Voucher for personal services of reporter App. 25, p. 674 
 
 Warrant of attachment App. 20, p. 655 
 
 Fort : 
 
 Commanding officer may appoint special courts-mar- 
 tial 21 ; A. W. 9 
 
 Commanding officer may appoint summary courts-mar- 
 tial 25 ; A. W. 10 
 
 Fraud : 
 
 Discharge obtained by; cancellation, arrest and court-mar- 
 tial 38(d) 
 
 Discharge obtained by ; serving out enlistment on cancella- 
 tion 38(d) 
 
 Drunkenness as showing lack of knowledge or intent 286 
 
 Publication of dismissal of officer for, in newspapers ; non- 
 association with him 347; A. W. 44 
 
 Fraud against United States. (See False claims against United 
 
 States.) 
 Fraudulent enlistment (see also Enlistment) : 
 
 Analysis and proof of offense 405 ; A. W. 54 
 
 Definitions and principles 405 
 
 Desertion ; A. W. 28, a rule of evidence and not a punitive 
 
 article 74 (n) 
 
 Desertion, joinder with charge of 74 (n) 
 
 Desertion, no defense to charge of 74 (n) 
 
 Double jeopardy, example of, in trial for 149 (3) (f) 
 
 Forms for specifications App. 6(1-4) 
 
 Uncorroborated confession insufficient 70 
 
 Willful intent must be alleged and proved under A. W. 54__ 281 
 Fray: 
 
 Defined 419 
 
 Power to quell, persons enumerated, penalty for dis- 
 obedience 419; A.W.68 
 
 Freedom in conducting case 100, 107e, 291 
 
 Funds : 
 
 Embezzlement of enlisted man's, by officer; liable after 
 
 discharge : 444, p. 459 ; A. W. 94 
 
 Embezzlement of ration savings, post exchange, company, 
 
 etc., by officer ; liable after discharge 444, p. 459 ; A. W. 94 
 
 Power of court-martial to correct averment as to 299 
 
738 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. w." indicates Articles of War, and " App." indicates Appendix.] 
 
 General article: Par. 
 
 Attempt, when conviction of, properly under 300 (note 2) 
 
 Members of Army Nurse Corps, warrant officers and field 
 clerks not included under A. W. 55, 56, 67, but for like 
 offense liable under 406, 407, 418 (note) 
 
 Offenses under, defined, instances, proof 446 ; A. W. 96 
 
 Specific article to be used for offense specifically pro- 
 vided for 75 fe) 
 
 Substitution of, by court, for article named in charges 300 
 
 General court-martial orders: 
 
 Form for App. 16 A, p. 641 
 
 Judicial notice 289 
 
 On rehearing; contents 377a 
 
 Publication, contents, copies, etc 400 ; App.16 
 
 Staff judge advocate, when to secure data for 399a(notel) 
 
 General courts-martial (see also Courts-martial and generally 
 throughout index) : 
 
 Adjournment, record to show 357 (b) (52) 
 
 Advice in open court 
 
 Of defense counsel 107d 
 
 Of trial judge advocate 09 
 
 Appointing order 
 
 Form App. 3 
 
 Reading to accused noted in record -357 (to) (16) 
 
 Appointment 
 
 By President of United States 14, 15 ; A. W. 8 
 
 By Superintendent of Military Academy, but not for 
 
 officers 16 ; A. W. 8 
 
 Duration of power to appoint 18 
 
 Each order affecting in record 357(b) (6) 
 
 Form for order of App.3 
 
 Who may appoint 14 ; A. W. 8 
 
 Challenge. (See Challenge.) 
 
 Charges. (See Charges.) 
 
 Closed sessions when required ; when not required 91 
 
 Composition, not less than five officers 7 (a) ; A. W. 5 
 
 Conduct of case 
 
 Freedom in 100, 107e, 291 
 
 Powers of trial judge advocate and court 100 
 
 Death sentence. (See Death sentence.) 
 
 Decorum, observation of; when standing required 86 
 
 Defense counsel. (See Defense counsel.) 
 
 Judicial notice. (See Judicial notice.) 
 
 Jurisdiction 
 
 Concurrent with military commissions under A. W. 
 12, 15, 80-82 3(b)(notel) 
 
ISTDEX. 739 
 
 [Bfernces are to paragraphs, except that the letter " p " Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix ] 
 
 General courts-martial Continued. 
 
 Jurisdiction Continued. Par. 
 
 Exclusive power to impose dishonorable discharge 320 ; 
 
 A. W. 108 
 
 Failure of record to show, ground for disapproval 146 
 
 Over pei-sons and offenses, enumerated 39; A. W. 12 
 
 Persons subject by law of war to trial by military 
 
 tribunals 13 ( b ) 
 
 Procedure on second trial when first trial vacated be- 
 cause of record not showing 146 (note 2) 
 
 Waiver of objection never confers 146 
 
 Law member. (See Law member.) 
 Meetings 
 
 Fact and hour in record 357 (b) (4) 
 
 Place and date in record 357 (b) (4) 
 
 Times and places 81 
 
 Members 
 
 Absence ; duty, noted in record, reason 85 
 
 Absence, procedure upon return after 93 
 
 Accuser or witness for prosecution ineligible 6 (a), 
 
 129 ; A. W. 8 
 As witness for prosecution, for defense or called by 
 
 court 131 
 
 Authentication of records, when by_ 354, 357 (b) (54) ; A. W. 33 
 Challenge. (See Challenge.) 
 
 Challenge or in eligibility noted in record 357 (b) (13) 
 
 Change in membership, rank, during trial ; effect 93 
 
 Closed session, right to require 91 ; A. W. 31 
 
 Duty with command during adjournment 81 
 
 Informing court as to member being accuser or witness. 129 
 
 Eligibility 6, 9, 11, 129-131 ; A. W. 4, 8 
 
 Informing court as to member being accuser or witness- 129 
 Law member. (See Law member.) 
 
 No maximum limitation 7 (a) (note 2) ; A. W. 5 
 
 Js T ot less than five; rules in determining number 7 (a) 
 
 (notel) ; A. W. 5 
 
 Oath; form, administration, when taken 132 (a) 
 
 Oath to test competency ; form 137 
 
 Organization completed for each case separately 142, 143 
 
 Presence or absence at opening and after recess, in 
 
 record 357b(37, 38) 
 
 Record to note names, presence, etc 357 (b) (7-9) 
 
 Taking of oath noted in record 357 (b) (17) 
 
 Taking seat after absence; advisability, procedure, 
 
 effect 93 
 
 Uniform 82 
 
 Usually near prescribed minimum ; odd aumber. 7 (a) (note 1) 
 
740 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 General courts-martial Continued. Par. 
 
 Offenses punishable by 39 ; A. W. 12 
 
 Order of appointment, contents 81 
 
 Order of reference 
 
 Appended to record of trial 357 (b) (56) 
 
 Examination for errors 97 
 
 Forwarded by appointing authority 367 (a) 
 
 Organization completed for each case separately 142, 143 
 
 Persons triable by 39 ; A. W. 12 
 
 Power of appointment 
 
 Officers who may appoint enumerated: 14 ; A. W. 8 
 
 President's power as Commander in Chief 15 
 
 President's power under A. W. 8 14 ; A. W. 8 
 
 President's power under R. S. 1230 15 
 
 President of general court-martial 
 
 Acts not by appointment but by seniority 89 
 
 Administers oath to trial judge advocate and assistants 
 
 as such or as witnesses 133 
 
 Advice to accused, as to limitations, in record 357(b) (21) 
 
 Advice to accused as to pleading limitations 149 (3). (b) 
 
 Advice to accused, ignorant of rights, in record 357b(26) 
 
 Authentication of records ; absence, etc 354, 
 
 357 (b) (54) ; A. W. 33 
 
 Duty to preserve decorum ; admonitions 86 
 
 Examination of order of reference for trial 97 
 
 Explanation to accused as to right to testify 215, 
 
 357(b)(34) ;App.9 
 
 Explanation to accused on plea of guilty 154 (d), 
 
 357 (b) (22, 23) 
 
 Explanation to accused on plea of guilty; record 154 (d) 
 
 Form for use of App. 9 
 
 Informs ignorant witness as to self-crimination 234 
 
 Insanity, etc., of accused raised during trial 219 (b) (f) 
 
 Oaths for administrative purposes 138 (b) ; A. W. 114 
 
 Powers and duties enumerated and discussed 89 
 
 Rulings on interlocutory questions, except challenges, 
 in absence of law member 89 ; A. W. 31 
 
 Punishment. (See also Punishment) 
 
 Limits; when mandatory, discretionary 40 
 
 Penitentiary sentence, when may be imposed- 40 ; A W. 42, 45 
 
 Quorum 
 
 Addition of members to secure ; procedure. 7(a),7(a) (note 3) 
 
 Addition of members to secure, when permitted 7 (a) 
 
 Powers of less than five members 7 (a) 
 
 Records. (See Records of courts-martial.) 
 Reporter. (See Reporter.) 
 
INDEX. 741 
 
 [References are to paragraphs, except tbat the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 General courts-martial Continued. Par. 
 
 Revision of proceedings 352, 364 ; App. 6 
 
 Rulings 
 
 Interlocutory questions 89, 89a; A. W. 31 
 
 Reliance on law member may be stated in record 89a(note 1) 
 
 Seating 
 
 According to rank; when changed, according to new 
 
 rank 12 (a), 83, 93 
 
 Of trial judge advocate, accused, counsel, reporter 83 
 
 Sentence. (See Sentence.) 
 
 Sessions, record to show opening, sessions, closing, etc., 357 (b) 
 
 (7-9,36-38,52) 
 
 Trial judge advocate. (See Trial judge advocate.) 
 Voting. (See Voting.) 
 
 What offenses should be tried by 78 
 
 General hospital : 
 
 Inmates, at Fort Bayard, N. Mex., subject to Articles of 
 
 War 4(f) (note 2) 
 
 Inmates, at Hot Springs, Ark., subject to Articles of 
 
 War 4(f) (note 2) 
 
 General issue. (See Pleas.) 
 
 General officer, confirmation of sentence of 378 (a) ; A. W. 348 
 
 General orders : 
 
 As source of military law 2(d) 
 
 Judicial notice of certain kinds enumerated 289 
 
 General prisoner. (See Prisoner.) 
 
 Gentleman, conduct unbecoming an officer and. (See Conduct 
 
 unbecoming an officer and gentleman.) 
 
 Gestures, reproachful or provoking. (See Reproachful or pro- 
 voking speeches or gestures.) 
 
 Gist of offense read to court after pleading 197, 357 (b) (24) 
 
 Giving intelligence to enemy. (See Enemy.) 
 Government employee as witness. (See Witnesses.) 
 Government, frauds against. (See False claims against United 
 States.) 
 
 Governor of State, etc., disrespect toward ; penalty 413 ; A. W. 62 
 
 Grade, reduction to seventh, of enlisted man, legal sentence 311 
 
 Grand jury deliberations privileged 227 
 
 Guilty. (See Conviction; Pleas.) 
 Habeas corpus : 
 
 Brief with return to writ out of Federal court to obtain 
 
 discharge of minor App. 22, p. 661 
 
 Forms for returns and briefs in App. 22, p. 657 
 
 From Federal court to review attachment of witness.. 169 (a) 
 
 From State court to review attachment of witness 169 (b) 
 
 Philippine Islands, procedure on writ in 480 
 
INDEX. 
 
 [RefertMices are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App," indicates Appendix.] 
 
 Habeas corpus Continued. Par. 
 
 Powers of Federal courts over courts-martial, in general 33, 33a 
 
 Purpose of writ, to determine legality of restraint 476 
 
 Review of plea to the jurisdiction by 146 
 
 State courts, return to writ; enlisted man or general 
 
 prisoner; form 478(b) ; App. 22, p. 660 
 
 State courts, return to writ ; witness held under attach- 
 ment 478 (a ); App. 22, p. 658 
 
 State courts without authority where restraint by United 
 
 States 477 
 
 To review proceedings of court-martial 33 
 
 United States Court ; return to writ, prompt obedience, pro- 
 cedure 479 
 
 Where restraint by United States, State court without 
 
 authority 477 
 
 Handwriting, statutory rule as to comparison of 240 
 
 Hanging (see also Execution of death sentence) : 
 
 More ignominious than shooting; for what offenses 346 
 
 Harboring or protecting the enemy. (See Enemy.) 
 Hard labor: 
 
 Confinement at; for officers only with dismissal 322 
 
 Confinement at, legal sentence for officer 310 
 
 Confinement at, legal sentence for soldier 311 
 
 Confinement at; statement in sentence, effect of omis- 
 sion 322 
 
 Without confinement as disciplinary punishment; one 
 
 week limit 333 ; A. W. 104 
 
 Without confinement, as mitigation from confinement at 
 
 hard labor 382 
 
 Without confinement; Executive order, War Department 
 
 policy p. 283(111) ; p. 286 (VII) ; 323 
 
 Without confinement, legal sentence for soldier 311 
 
 Without confinement ; sentence continuous, exceptions 401 
 
 Hawaii : 
 
 Double jeopardy rule in 149(3) (d) 
 
 Trial in either civil or military court in, bar to trial in other 
 
 for same offense 149 (3) (a) 
 
 Hazardous duty, absence with intent to avoid : 
 
 Analysis and proof of offense 409, 409 (note) ; A. W. 28, 58 
 
 A. W. 28, a rule of evidence and not a punitive article 74 (n) 
 
 Deemed desertion under A. W. 28 409 
 
 Form for specification App. 6(20) 
 
 Hearsay evidence: 
 
 Admissions. (See Admission against interest.) 
 
 Books of account 244 
 
 Confessions. (See Confession.) 
 
INDEX. 743 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App," indicates Appendix.] 
 
 Hearsay evidence Continued. 
 
 Exceptions Par 
 
 Commercial lists, registers, etc 221a(7) 
 
 Dying declarations 221a(l),222 
 
 Official statements in writing 221a ( 5 ) , 236a, 238a 
 
 Regular entries in a book of business transactions... 221a(4), 
 
 244 
 
 Statements concerning family history 221a(3) 
 
 Statements, explanations, res gestae 221a(9),22S 
 
 Statements of deceased persons, in general 221a(10) 
 
 Statements of fact against interest 221a(2) 
 
 Statements of mental or physical condition 221a(8), 226 
 
 Treatises or essays on subjects of science or art 221a(6) 
 
 Hearsay rule stated 221 
 
 On investigation, not admissible because so made 221 
 
 In official statements, etc., not admissible because so made- 221 
 
 Instances of, enumerated 221 
 
 Investigating officer, statements to 237a(note 2) 
 
 Memoranda. (See Memoranda.) 
 
 Rule defined; reasons for; discussed 221 
 
 Homicide : 
 
 By sentinel to prevent escape of prisoner 442, p. 409 
 
 Corpus delicti established by proof of death 225 (c) 
 
 Death must result within year and day 442, p. 410 
 
 Example of justification or excuse 442, p. 410 
 
 In compliance with orders or supposed duty 442, p. 408 
 
 In self-defense 442, p. 410 
 
 Manslaughter. (See Manslaughter.) 
 Murder. (See Murder.) 
 Honorable discharge (see also Discharge) : 
 
 Certificate to be furnished enlisted man A. W. 108 
 
 No release as to desertion in prior enlistment by 38 (e) 
 
 Horses, losing, injuring, etc: 
 
 Analysis and proof, definitions, penalty 434 ; A. W. 84 
 
 Form for specification App. 6(74) 
 
 Housebreaking (see also Burglary) : 
 
 Burglary distinguished 443, p. 420 
 
 Definitions and principles, proof, penalty 443, pp. 413, 420 ; 
 
 A. W. 93 
 
 Form for specification App. 6(98) 
 
 Limitation of three years 149(2) 
 
 Husband and wife: 
 
 Cases enumerated where wife may testify against husband. 228 
 Communications are privileged ; third parties may testify. 227, 
 
 228 
 Competency as witnesses for and against each other 213, 228 
 
744 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Idaho, fees and mileage of civilian witnesses in 185 
 
 Identification of accused. (See Accused.) 
 
 Identity, plea to specification as admission of 146 ( note 1) 
 
 Ignorance of fact, as defense 283 
 
 Ignorance of law: 
 
 All residents presumed to know law applicable to their resi- 
 dence 277, 282 
 
 Articles of War; effect of failing to read to enlisted men 
 
 discussed 282 
 
 Persons subject to military law presumed to know statute 
 law applicable to Army, regulations, manuals, orders, and 
 
 circulars 282 
 
 Immunity, promise of 216 
 
 Important service, absence with intent to shirk : 
 
 Analysis and proof of offense 409, 409 (note) ; A. W. 28, 58 
 
 A. W. 28, a rule of evidence and not a punitive article 74 (n) 
 
 Deemed desertion under A. W. 28 409 
 
 Incrimination. (See Self-crimination.) 
 Index : 
 
 Records of general and special courts-martial 357(b) (2), 360 
 
 Separate, of Articles of War App. 1, p. 539 
 
 Indirect evidence defined 202 
 
 Individual counsel. (See Counsel.) 
 Indorsement : 
 
 Certificate of service by trial judge advocate as second, on 
 
 charge sheet 77b; App. 5(7) 
 
 Order of reference for trial as first, on charge sheet App. 5(7) 
 To report of investigating officer as form for forwarding 
 
 charges 76a (11) 
 
 Inducing misbehavior before the enemy, etc.: 
 
 Analysis and proof of offenses 425, p. 377 
 
 Definitions and principles 425, p. 379 ; A. W. 75 
 
 Forms for specifications App. 6(55, 56) 
 
 Injury to property, redress of: 
 
 Assessment for damages; approval by commanding officer, 
 
 stoppage 481; A. W. 105 
 
 Board of officers ; scope of powers ; assessment of damages, 
 
 powers as to testimony, etc 481 ; A. W. 105 
 
 Trial under A. W. 89 proper and preferably before board's 
 
 investigation 481 
 
 Innocence : 
 
 Presumption of law until guilt proved 277 
 
 Prima facie evidence may be outweighed by presumption of_ 279 
 Inquest : 
 
 Form for report App. 26 
 
 Summary court to hold 483; A. W. 113 
 
INDEX. 745 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Inquest Continued. Par. 
 
 Procedure in case of sudden, violent or unnatural death on 
 post, etc 483; A. W. 113 
 
 Insanity, etc., of accused : 
 
 Action to be taken because of failure to plead as result of_ 155 
 
 At arraignment or later stage, arrest of proceedings 154 (g) 
 
 At time of commission of facts; plea of not guilty proper 154(g) 
 
 Medical board to examine accused, when 76b 
 
 Medical officer to examine accused, when 76a(9) 
 
 Procedure to determine when raised at any time in trial 219 
 
 Rulings on, in courts-martial ; by whom 89, 89a 
 
 Special plea not necessary; raised before sentence 148 (note) 
 
 Voting by court on question of, procedure 219 (g) 
 
 Witnesses may be called before court 219 (e) 
 
 Insanity of witness as affecting competency 212 
 
 Inspector General's Department, reports of special inspections 
 confidential 230 
 
 Insubordination : 
 
 Toward superior officer; offense defined, proof, penalty 415; 
 
 A. W. 64 
 
 Toward warrant or noncommissioned officer; offense de- 
 fined, proof, penalty 416 ; A. W. 65 
 
 Insular possessions, fees and mileage, civilian witnesses in 185a-c 
 
 Insurance premiums, war risk, pay of soldier alloted for, may 
 
 not be detained or forfeited 311 
 
 Intent : 
 
 Change by court of plea of guilty because accused denies, 154 (e) ; 
 
 A. W. 21 
 Character of accused, when admissible to show ; examples. 206 
 
 Crimes distinguished in respect to 280 
 
 Desertion not proved by payment of reward for deserter 284 
 
 Desertion, presumption as to continued absence without 
 
 leave 284 
 
 Drunkenness as showing absence of 284, 285 
 
 " Guilty without criminality " an improper finding 303 
 
 Ignorance of fact as showing lack of ; how far a defense 283 
 
 In homicide; malice aforethought 442 
 
 No statutory intent in A. W. 61 or 86 to be alleged or 
 
 proved 
 
 Prosecution must prove actual, to sustain conviction 281 
 
 Statutory intent described in certain articles must be alleged 
 
 arid proved 
 
 Statutory intent not expressed but matter of proof 281 
 
 Interest : 
 
 Does not disqualify, but affects weight of testimony 213 
 
 Statement against, as hearsay exception 221a(2) 
 
746 I2TDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Interest of commanding officer in sale of victuals, etc. : Par. 
 
 Analysis and proof of offense 437 ; A. W. 87 
 
 Form for specification App. 6(80) 
 
 Interlocutory questions : 
 
 Record to show ruling on certain 357 (b) (35) 
 
 Rulings on, by president of court 89 ; A. W. 31 
 
 Term defined 89a(5) 
 
 International law (see also War). 
 
 Definition of " enemy " 431 
 
 Judicial notice 289 
 
 Military government a part of law of nations 2 (a) 
 
 Interpreter : 
 
 For courts-martial, military commission or summary court ; 
 
 appointment, compensation 119 ; A. W. 115 
 
 For court of inquiry; appointment, compensation 119, 
 
 457 ; A. W. 115 
 
 For court of inquiry ; oath 466 ; A. W. 101 
 
 For courts-martial, oath 136 ; A. W. 19 
 
 Record to show who acted as, and oath 357b(14) 
 
 Interrogatories. (See Depositions.) 
 
 Intoxication of witness as limited disqualification 212 
 
 Introduction to Manual for Courts-Martial : 
 
 Edition of 1917 xiii 
 
 Edition of 1920 v 
 
 Investigating officer: 
 
 Accused furnished copy of report of 77b 
 
 Gross-examination as to report, when permitted at trial 237a 
 
 (notel) 
 
 Duties prescribed in detail; impartiality 76a(7-10) 
 
 Duty to warn accused as to incrimination 225 (b) 
 
 Form for report App. 18 
 
 Power to administer oaths 188 (a) ; A. W. 114 
 
 Report attached to record of trial 357 (b) (56) 
 
 Report forwarded by appointing authority 367 ( a, b) 
 
 Report not competent on trial ; personal testimony required 237a 
 Report on charges; form, inclosures 76a(10) 
 
 Investigation : 
 
 As ground for challenge 121 
 
 By court of inquiry. (See Courts of Inquiry.) 
 
 By summary court; how made 351 (e) 
 
 Disciplinary punishment cases ; manner, where held 336c 
 
 Hearsay evidence not admissible because made in 221 
 
 Of charges, (Bee Charges; Investigating officer.) 
 Of sudden, violent, and unnatural deaths, by summary 
 court 483 ; A. W. 113 
 
INDEX. 747 
 
 (References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Irons, placing in : Par. 
 Accused not tried in irons; exception, validity unaf- 
 fected 88 
 
 Forbidden ordinarily ; exceptions 36 
 
 Issues in a trial, deiined 195 
 
 Jeopardy, former. (See Former jeopardy.) 
 
 Joining in mutiny, defined 417 
 
 Joint offenses: 
 
 Effect of conviction or acquittal on joint charges 301 
 
 Form for charges ^_ 69 
 
 Motion to sever for trial by one or more of accused 156 
 
 Record to srhow each accused had rights as if tried alone. 357 (b) 
 
 (39) 
 
 Use of one of the accused as witness by prosecution 156 
 
 When joint charges proper ; right of challenge 69 
 
 Judge advocate: 
 
 Administration of oaths by 138 (b) ; A. W. 114 
 
 Staff. (See Staff judge advocate.) 
 Trial. (See Trial judge advocate.) 
 
 Judge Advocate General: 
 
 Action on death, unsuspeiided dismissal or dishonorable dis- 
 charge, penitentiary cases and cases requiring President's 
 
 approval or confirmation 371 ; A. W. 50J 
 
 Advice of reviewing authorities, when 370 (note 3) 
 
 Authority for penitentiary sentence to be stated in forward- 
 ing record to 339 
 
 Duties in cases requiring approval of President 399a(b) 
 
 Duties, in general, on review of cases under A. W. 50i 399a 
 
 Law member an officer in Judge Advocate General's Depart- 
 ment, when available 81 (a) 
 
 Nonconcurrence with board of review 399a(c) ; 399 (note 2) 
 
 Record of general court appointed by President directly to_ 366 (a) 
 Record of general courts from appointing authorities; pa- 
 pers therewith 79(b),267(a) 
 
 Rehearing, record of, with that of former hearing, to 377a 
 
 Reports to Secretary of War confidential; not furnished 
 
 without authority 230 
 
 Special court-martial records, permanent file of 367 (b) 
 
 Staff judge advocate's report or review to 367, 370 
 
 Judgment (see Findings; Sentence) 294 
 
 Judicial notice: 
 
 Defined ; cases enumerated ; general principles 289 
 
 Facts of which courts take, to be considered as evidence 194 
 
 General orders convening general courts in special juris- 
 dictions 14(notel) 
 
 Principles and limitations respecting doctrine 239 
 
748 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Par. 
 
 Juries, deliberations as privileged communications 227 
 
 Jurisdiction : 
 
 Concurrent with civil courts; rules, procedure 35 
 
 Military, not territorial 37 
 
 Of courts-martial. (See Courts-martial and the specific 
 
 court. ) 
 Of courts of inquiry. (See Courts of inquiry.) 
 
 Knowingly defined, as to making fraudulent enlistment 406 
 
 Larceny : 
 
 Corpus delicti established by proving articles missing 225 (c) 
 
 Definitions and principles 443, p. 413 
 
 Distinct and specific intent, independent of act, essential 280 
 
 Distinction between custody and possession, examples. 443, p. 426 
 
 Drunkenness as defense 285 
 
 Embezzlement distinguished 443, p. 426 
 
 Evil intent and act must coexist ; exception 443, p. 428 
 
 Forms for specifications App. 6 
 
 From person ; included in robbery 877 
 
 Hearsay evidence, instance of, in trial for 221(2) 
 
 Included in robbery 443, p. 423 
 
 Intent lacking, offense is not; examples 443, p. 428 
 
 Intent to return in some other form, examples 443, p. 429 
 
 Limitation of three years 149(2) 
 
 Of military property ; defined, proof 444, p. 456 ; A. W. 94 
 
 Of paper not valuable in itself, chose in action, etc 443, p. 430 
 
 Personal property only subject of; real becoming personal 
 
 property 443, p. 430 
 
 Presumption from possession of stolen articles 278 
 
 Repentance immediately after offense committed, no de- 
 fense 443, p. 430 
 
 Sale of same property as evidence of 74 (o) 
 
 Sale of same property, when joined 74 (o) 
 
 Taking and carrying away necessary, examples 443, p. 424 
 
 Taking from one having possession only, sufficient 443, p. 428 
 
 Taking from possession of owner without consent neces- 
 sary ; examples 443, p. 424 
 
 When committed in burglary, facts should be set out 443, p. 420 
 
 Lawful order, nature of 415 
 
 Law member: 
 
 Absence, procedure upon 85 
 
 Advises accused as to pleading limitations 149(3) (h) ; 
 
 357 (b) (21); App. 9, p. 610 
 
 Advises accused, ignorant of rights 357 (b) (26) 
 
 Advises accused of right to testify or make statement 89a(7) ; 
 
 215 ; 357b (34) ; App. 9, p. 612 
 
INDEX. 749 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Law member Continued. Par. 
 
 Appointment and rank 12 (c) ; 81 (a) ; 89 
 
 Challengeable only for cause 120 ; A. W. 18 
 
 Change of, during trial, procedure 93 
 
 Designated as such in order appointing court 12 (c) 
 
 Duties respecting insanity, etc., of accused raised during 
 
 trial 219 (b) (f) 
 
 Equal rights, in addition to special duties, with other mem- 
 bers 89a(6) 
 
 Explains effect of plea of guilty; shown in record 89a(7), 
 
 154 (d), 357b(22) ; App. 9, p. 611 
 
 Form for use of App. 9 
 
 Ordinarily of field rank 12 (c) 
 
 Overruling by court, effect to be considered. 89(a) (notel),90(b) 
 Presence or absence at opening and after recess, in rec- 
 ord 357(b) (37, 38) 
 
 President's duties in absence of. (See General courts-mar- 
 tial President of general court-martial.) 
 
 Procedure if no qualified officer available 12 (c) 
 
 Record to note name, presence, etc 357 (b) (7-9) 
 
 Rehearing, duties on 377a 
 
 Reliance on ruling of, may be stated in record 89(a) (notel) 
 
 Rulings on interlocutory questions 89a ; A. W. 31 
 
 Where seated in court 83 
 
 Law of nations. (See International law.) 
 
 Law of war. (See War.) 
 
 Laying a duty upon bringing in victuals, etc. : 
 
 Analysis and proof of offense 437 ; A. W. 87 
 
 Form for specification App. 6(79) 
 
 Leading questions: 
 
 Court has discretion to permit; care to be exercised 254 (c) 
 
 Defined; examples 254(a) 
 
 Exceptions permitting asking, enumerated 254 (c) 
 
 Permissible on cross-examination 251 
 
 Wide latitude allowed in depositions 265 
 
 Leaving post before being relieved: 
 
 Analysis and proof of offense 436 ; A. W. 86 
 
 Capital offense in time of war 41 ; A. W. 86 
 
 Corpus delicti, proof of 225 (c) 
 
 Definitions and principles 436 
 
 Form for specification App. 6(78) 
 
 Lesser included offense: 
 
 Conviction of separate and distinct offense not proper as a__ 299 
 
 Enumerated, in part 377 
 
 Method of pleading guilty of absence without leave only 298 
 
 Power to approve 377 (a) 
 
 21358 20 48 
 
750 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." Indicates Appendix.] 
 
 Lesser Included offense Continued. Par. 
 
 Power to confirm ,. 379 (a) 
 
 Power to convict of; procedure 377 
 
 Procedure to be followed by court on finding guilty of__ 208, 300 
 
 Letters. (See also Documentary evidence.) 
 
 Method of authenticating in trial 239 
 
 Presumption as to receipt of properly mailed 278 
 
 Liberty loan bonds, pay allotted for not subject to detention or 
 
 forfeiture 311 
 
 Life imprisonment: 
 
 Or death, mandatory for murder or rape 40 (note 1) 
 
 Sentence requires three-fourths vote 295, 308 ; A. W. 43 
 
 Sentence, record to show necessary concurrence 357 (b) (50) 
 
 Limitations : 
 
 Clemency applications, not more than one in six months 404 
 
 Of disciplinary power 333-336 ; A. W. 104 
 
 On punishment by general court-martial__ 40 ; A. W. 42, 45 
 
 On punishment by special court-martial 42; A. W. 13 
 
 On punishment by summary court-martial. 44 ; A. W. 14 
 
 Time. (See Statute of limitations.) 
 
 Trials. (See Former jeopardy.) 
 
 Upon power to convene court of inquiry ^_ 448 
 
 List of common errors , App. 27 
 
 Loss of military property defined 433, 434 
 
 Loss or destruction of records before action of reviewing 
 authority , 363 
 
 Mail, presumption as to receipt of 278 
 
 Maiming defined; distinguished from mayhem (see also May- 
 hem) _ 446, p. 464 
 
 Making false muster. (See False muster.) 
 
 Making false returns. (See False returns.) 
 
 Making or delivering receipt without knowing of its truth, 444, p. 455 ; 
 
 A. W. 94 
 
 Malice, definition of 442 
 
 Mandatory sentence (see also Death sentence; Dismissal): 
 
 As permitting return of record for reconsideration 352, 
 
 372 ; A. W. 40 
 Manslaughter (see also Homicide) : 
 
 Assault with intent to commit 443, p. 444 ; A. W. 93 
 
 Conviction of, under charge of murder 300, 377 
 
 Definitions and principles, voluntary and involuntary. 443, p. 413 
 
 Dying declaration, when receivable in trial for 222 
 
 Instances of adequate and inadequate provocation 443, p. 414 
 
 Instances of culpable negligence 443, p. 415 
 
 Lesser included offense in murder T 377 
 
 Limitation of three years ,. 149(2) 
 
INDEX. 751 
 
 [References arc to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Manual for Courts-Martial : Par. 
 
 A source of military law 2(d) 
 
 Executive order promulgating, xxi 
 
 Introduction to 1917 edition xiii 
 
 Introduction to 1920 edition v 
 
 Modes of proof prescribed in, force of regulation 198 
 
 Reading of pertinent paragraphs to general court- 
 martial 357 (b) (24) 
 
 Maps as evidence, when admissible -245 
 
 Marine Corps : 
 
 Distinction between cooperation with and incorporation 
 
 into Army 10 
 
 Members of Navy Medical Department serving with, when 
 
 subject to Articles of War 4(d) ;4(d)(note) 
 
 Officers of, when eligible as members of courts-martial 10 
 
 When officers and soldiers, triable by military court- 
 martial 4 (c) ; 4 (d) (note) ; A. W. 2. (c) 
 
 When officers and soldiers triable by naval court- 
 martial 4d (note) ; A. W. 2 (c) 
 
 Marking body prohibited 344 ; A. W. 41 
 
 Marital relationship. (See Husband and wife.) 
 Marriage, not proved by wife's refusal to testify against hus- 
 band (see also Husband arid wife) 228 
 
 Martial law, at home; defined, source 2(b) 
 
 Materiality of evidence: 
 
 Defined 202 
 
 In prosecution for perjury 443, p. 433 
 
 Maximum punishments: 
 
 Executive order effective February 4, 1921 349 
 
 In time of peace, limited as to penitentiary sentences 348; 
 
 A. W. 42 
 Limits prescribed by President in discretionary cases- 38 ; A. W. 45 
 
 Policy in applying, discussed 342 
 
 Mayhem : 
 
 Certain assaults included in offense of . 377 
 
 Definition and principles ; proof, penalty. 433, pp. 413, 415 ; A. W. 93 
 
 Limitation of three years 149(2) 
 
 Maiming distinguished 46G, p. 465(3) 
 
 Medical board: 
 
 Accused furnished copy of report of 77b 
 
 Appointment to examine accused before trial ; personnel ; 
 
 observation ; evidence considered ; report ; contents 76c 
 
 Challenge of member of 126 (note 2) 
 
 Convened when insanity, etc., of accused raised at trial, 
 procedure 219 (d) 
 
752 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Medical board Continued. rar. 
 
 Members, when called as witnesses at trial 219(b) 
 
 Report, action on, when insanity, etc., raised during trial- 219 
 Report and copy sent to trial judge advocate with charges- 76c(4) 
 Report appended to record of general court-martial 357 (b) (56) 
 Reviewing or confirming authority may have convened at 
 any time before final action to consider mental condi- 
 tion of accused (219 (h) (note) 
 
 Medical Department, Navy, when members subject to Articles 
 
 of War 4(d) ;4(d)(note) 
 
 Medical examination : 
 
 Compulsory submission to, not violation of self-crimination 
 
 rule 236, 236 (a) 
 
 Of accused as step in investigating charges; nature 76a(9) 
 
 Testimony as to scars, marks, etc., on accused not violation 
 
 of self -crimination rule 236 (a) 
 
 Medical officer: 
 
 Accused furnished copy of report of 77b 
 
 Examination of accused during investigation of charges 76a(9) 
 
 Examining accused as member of later appointed medical 
 
 board 76c 
 
 Report appended to record of general court-martial 357 (b) (56) 
 
 Report forwarded by appointing authority 367 ( a, b) 
 
 Report on insanity, etc., of accused may be offered by 
 
 defense 219 (c) 
 
 Statements to, not privileged 231 
 
 Medical treatment, refusal to submit to 68 
 
 Members of courts-martial. (See Courts-martial and the specific 
 
 courts.) 
 Memoranda (see also Documentary evidence) : 
 
 Two kinds as evidence; proof, refreshing recollection 241-243 
 
 Mileage : 
 
 Based on shortest usually traveled route 185 (note 1) 
 
 Of court-martial reporter 113 (e) 
 
 Of witnesses (see Witnesses). 
 Military Academy: 
 
 Professors and cadets, part of Regular Army 4(a) (note a) 
 
 Superintendent may appoint general court-martial, but not 
 
 for officers 14,16; A. W. 8, 12 
 
 Military board : 
 
 President and recorder have powers of notary public or con- 
 sul in foreign places where Army serving 138 (b) ; A. W. 114 
 
 President and recorder may administer oaths for military 
 
 purposes, etc 138 (b) ; A. W. 114 
 
 Suspended officer ineligible as member of 814 
 
INDEX. 753 
 
 [References are to paragraphs, except that the letter "p" Indicates pa^e, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Military commission : Par. 
 
 Concurrent jurisdiction with courts-martial 45 ; A. W. 15 
 
 Concurrent with general courts-martial under A. W. 15, 
 
 80-82 3(b)(note 1) 
 
 Investigation of charges by staff judge advocate 76b 
 
 Jurisdiction stated; where concurrent with general courts- 
 martial 3(a) ; 3(b)(notel) 
 
 Limitations on jurisdiction of military offenses discussed 8(b) 
 
 (note 2) 
 Military department: 
 
 Authenticated copies of records of, as evidence 238 
 
 Commander may appoint general court-martial 14 ; A. W. 8 
 
 Commander, successor on death or disability of 19 
 
 Commander's duties when officer arrested without charges 
 
 preferred 50 
 
 Commander's power to appoint general courts, when termi- 
 nated or suspended 18 
 
 Dismissal of officers in time of war, confirmation by com- 
 mander of 378(b); A. W. 48 
 
 Judicial notice of existence 289 
 
 Judicial notice of general or special orders of, discussed 289 
 
 Mitigation or remission of sentences, when by commander 
 
 of 381 ; A. W. 50 
 
 Report to commander of habeas corpus in attachment pro- 
 ceedings 169 (a) 
 
 Report to commander of habeas corpus out of Federal court, 
 
 by telegraph 479 
 
 Witnesses, duties of commander respecting 163, 164 
 
 Military discipline, conduct prejudicial to. (See Conduct preju- 
 dicial to good order, etc.) 
 
 Military duty as punishment, forbidden 345 
 
 Military government defined; kind of military jurisdiction, 
 
 part of law of nations 2 (a) 
 
 Military jurisdiction : 
 
 Exercised through certain enumerated military tribunals 3 
 
 Not territorial 37 
 
 Sources enumerated 1 
 
 Three kinds enumerated 2 
 
 Military law: 
 
 Defined; nature; written and unwritten; sources 2(d) 
 
 Persons subject to 4 ; A. W. 2 
 
 Unwritten military law is "custom of war"; source 2(d) 
 
 Military prisoner. (See Prisoner.) 
 Military property (see also Property) : 
 
 Embezzlement, misappropriation, sale, etc. ; definitions, ex- 
 amples, proof 444, p. 456 ; A. W. 94 
 
754 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Military property Continued. Par. 
 
 Offenses under A. W. 83 or 84 " willfully " or " through neg- 
 
 l^t" 281 
 
 Purchasing or receiving in pledge; offense defined, 
 
 proof 444, p. 548 ; A. W. 94 
 
 Sale, analysis and proof, penalty 444, pp. 449, 458 ; A. W. 94 
 
 Sale of stolen, how charged 74 (o) 
 
 Similar offense under A. W. 84, evidence of as bearing on 
 
 intent 206 (4) 
 
 Soldier selling; example of what would be hearsay evi- 
 dence 221(3) 
 
 Soldier selling, injuring, etc. ; analysis and proof of offense- 434 ; 
 
 A. W. 84 
 
 Soldier selling, injuring, etc. ; definitions and principles 434 
 
 Soldier selling, injuring, etc. ; forms for specifications App. 6 
 
 (74,75) 
 
 Suffering to be lost, etc. ; analysis and proof of offense 433 ; 
 
 A. W. 83 
 
 Suffering to be lost, etc. ; definitions and principles 433 
 
 Suffering to be lost, etc.; form for specification -App. 6(73) 
 
 Military service, conduct tending to bring discredit on. (See 
 Conduct of a nature to bring discredit upon the military 
 service. ) 
 Military tribunals: 
 
 Concurrent jurisdiction with courts-martial 45 ; A, W. 15 
 
 Kinds of, enumerated 3 
 
 Military witnesses. (See Witnesses.) 
 Militia (see also National Guard) : 
 
 When subject to Articles of War 4 (a) (noteg) ; A. W.2(a) 
 
 Minor : 
 
 Habeas corpus. (See Habeas corpus.) 
 
 Right to arrest and try deserter paramount to parent's 
 
 rights 60 
 
 Testimony of child; rule as to admissibility, change from 
 
 common law 210(a) 
 
 Misappropriation of military property 444, p. 456 ; A. W. 94 
 
 Misbehavior before the enemy: 
 
 Analysis and proof of offenses 425, p. 377 ; A. W. 75 
 
 Capital offense 41 ; A. W. 75 
 
 Definitions and principles 425, pp. 377, 378 
 
 . Finding of absence without leave under charge of 300 
 
 Forms for specifications App. 6(50-59) 
 
 Misbehavior of sentinel. (See Sentinel.) 
 
 Misrepresentation defined as to fraudulent enlistment 405 
 
 Mistrial not regarded as a trial 149(3) (c) 
 
INDEX. 755 
 
 CReferences are to paragraphs, eaccept that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Mitigation : Par. 
 
 Confinement already served as basis 401 
 
 Of punishment, denned ^ __^_, 380 
 
 Of sentence ; described ; by whom exercised ; extent. 381 ; A.W. 50 
 Of sentence ; officers who may be empowered by President. 381 ; 
 
 A. W. 50 
 Of sentence; when permissible.^. 382 
 
 Modification of sentence before publication ,. 387 
 
 Money, taking of. (See Bribe.) 
 
 Montana, fees and mileage of civilian witnesses in 185 
 
 Morning report: 
 
 Original admissible without calling officer making 238a 
 
 Proof of absence without leave from entries in , 284 
 
 Motion to elect not proper 157 
 
 Motion to sever in joint charges 156 
 
 Motive: 
 
 Admission of evidence to show, when proper 206 
 
 Proper presumptions of fact as to 278 
 
 Statement of accused in explanation of 290 
 
 Murder (see also Homicide) : 
 
 Analysis and proof 442, pp. 408, 411 ; A. W. 92 
 
 Assault and battery, conviction of, on trial for 300, 377 
 
 Attempt to murder, a lesser included offense in 377 
 
 Capital offense at all times 41 ; A. W. 92 
 
 Conviction of, by whom to be confirmed 378 (d) ; A. W. 48 
 
 Death by hanging, usual capital penalty . 346 
 
 Definitions and principles 442, p. 408 
 
 Distinct and specific intent, independent of act, essential 280 
 
 Drunkenness as defense 285 
 
 Dying declaration, when admissible in trial for 222 
 
 Form for specification App. 6(92) 
 
 Lesser included offenses enumerated 377 
 
 Manslaughter, conviction of, on trial for 300, 377 
 
 No limitation as to time of trial for 149(2) 
 
 Muster in, unlawful by officer : 
 
 Analysis and proof of offense 406 
 
 Definitions and principles 406 ; A. W. 55 
 
 Forms for specifications App. 6(5) 
 
 Muster, making false: 
 
 Analysis and proof of offense 407 ; A. W. 56 
 
 Definitions and principles 407 
 
 Forms for specifications App. 6(6-12) 
 
 Muster, taking money in connection with: 
 
 Analysis and proof of offense 407 ; A. W. 56 
 
 Definitions and principles 407 
 
 Forms for specifications App. 6(6-12) 
 
756 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Mustering false officer or soldier : Par. 
 
 Analysis and proof of offense 407 ; A. W. 56 
 
 Definitions and principles 407 
 
 Forms for specifications App. 6(6-12) 
 
 Mutiny : 
 
 Analysis and proof of offenses under A. W. 66 417 
 
 Analysis and proof of offenses under A. W. 67 418 
 
 Capital offense at all times 41 ; A. W. 66 
 
 Conviction of, whose confirmation required 378 (d) ; A. W. 48 
 
 Definitions and principles under A. W. 66, 67 417,418 
 
 Distinct and specific intent, independent of act, essential 280 
 
 Drunkenness as showing lack of knowledge or intent 286 
 
 Failure to suppress, capital offense at all times 41 ; A. W. 67 
 
 Five offenses under A. W. 66 : Attempting to create, begin- 
 ning, joining in, exciting, and causing 417 
 
 Forms for specifications under A. W. 66 App. 6 
 
 Forms for specifications under A. W. 67 App. 6 
 
 No limitation as to time of trial for 149(2) 
 
 Penitentiary offense ; rule to be applied 40, 338 ; A. W. 42 
 
 Two offenses under A. W. 67 : Failure to suppress, and fail- 
 ure to give information 418 
 
 Name: 
 
 Alias, use of, in preparing charges 74 (i) 
 
 Christian name used in preparing charges 74 (h) 
 
 Power of court-martial to correct, on conviction 299 
 
 Presumption from identity of names 278 
 
 National Guard: 
 
 Court-martial system for, when not in Federal service App. 2 
 
 When subject to military law 4 (a) (notes d, g) ; A. W. 2 
 
 National Home for Disabled Volunteer Soldiers : 
 
 Inmates subject to Articles of War 4(f) (note 2) 
 
 Naval court-martial, trial of Navy personnel for offenses against 
 Articles of War 4d(note) ; A. W. 2(c) 
 
 Navy, members of Medical Department serving with marines, 
 when subject to Articles of War 4(d) ; 4(d) (note) 
 
 Neglect of duty. (See Disorders and neglects, etc.) 
 
 Nevada, fees and mileage of civilian witnesses in 185 
 
 New Mexico, fees and mileage of civilian witnesses in 185 
 
 Nolle prosequi : 
 
 Acquittal as preferable to . 158 
 
 Definition, principal grounds, effect, when entered 158 
 
 Entering against accomplice, to secure his testimony __ 217 (notes) 
 Form for__ App. 10, p. 619 
 
 Noncapital offenses (see also Crimes and offenses) 446, p. 463; 
 
 A. W. 96 
 
INDEX. 757 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Noncommissioned officers : Par. 
 
 Arrest of enlisted men, as means of restraint, by, when 
 
 permitted 52 
 
 Arrest, status when in 53 
 
 Excepted, above rank of corporal, from jurisdiction of 
 
 summary courts-martial by G. O. 71, W. D., 1920 p. 656 
 
 Included under word "soldier" 4(notel) ; A.W.I (b) 
 
 Insubordinate conduct toward 416 ; A. W. 65 
 
 May be "commander of a guard" under A. W. 71 421 
 
 Members of Army Nurse Corps, warrant officers or field 
 
 clerks can not be reduced to grade of 310a 
 
 Offenses against in execution of office ; penalty 416 ; A. W. 65 
 
 Power to quell frays, disorders, etc. ; penalty 419 ; A. W. 68 
 
 Reduction to the ranks. (See Reduction to the ranks.) 
 
 Reprimand proper penalty for 318 
 
 Summary court-martial, not triable by, on objection; pro- 
 cedure 43 ; A. W. 14 
 
 Nonsupport of wife and children ; wife may testify against hus- 
 band accused of 228 
 
 Not guilty. (See Acquittal ; Pleas.) 
 Notary public: 
 
 Authorized to administer certain oaths for War Depart- 
 ment; perjury 443, p. 434 
 
 Certain officers have powers of, in foreign places where 
 
 Army Is serving 138 (b) ; A. W. 114 
 
 Oath (see also Affidavit) : 
 
 Additional ceremony permitted, to make binding 132 (d) 
 
 Administered anew for each case 132 (c) 
 
 Affirmation; closing sentence of adjuration omitted 132 (b) 
 
 Affirmation included in, if affirmation authorized 433, p. 434 
 
 Authority to administer, officials enumerated 138 ; A. W. 114 
 
 Decorum during administration of 86 
 
 Delivery of record of trial to accused 117, 366(b) 
 
 Depositions taken before military or civil officer authorized 
 
 to administer 175 
 
 False, in connection with claims against Government- 444, p. 454 ; 
 
 A. W. 94 
 
 For administrative purposes, who may administer 138 
 
 Forms for, enumerated 132-138 
 
 Includes affirmation, where affirmation authorized 443, p. 434 
 
 Of accuser ; form on charge sheet App. 5 
 
 Of allegiance, how violation pleaded 74(1) 
 
 Of enlistment ; failure to read Articles of War 282 ; A. W. 109 
 
 Of interpreter of court of inquiry, same as of court- 
 martial 466 ; A. W. 101 
 
 Of interpreter of court-martial ; form 136 ; A. W. 19 
 
758 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Oatli Continued. Par. 
 
 Of member of court-martial, form 132 ( a) ; A. W. 19 
 
 Of member of court of inquiry ; form 466 ; A. W. 100 
 
 Of members 'of general court-martial; taking, noted in 
 
 record 357(b) (17) 
 
 Of recorder of court of inquiry ; form 466 ; A. W. 100 
 
 Of reporter of court-martial ; form 135 ; A. W. 19 
 
 Of reporter of court of inquiry, same as of court- 
 martial 466; A. W. 101 
 
 Of trial judge advocate and assistants ; form 133, 134 (b) ; A. W. 19 
 
 Of witness before court-martial; form 134(a) 
 
 Of witness before court of inquiry, same as before court- 
 martial 466; A. W. 101 
 
 Of witness; form, administration 134 
 
 Of witness, general court-martial record to show 357(b)(25) 
 
 Recalled witness not resworn but warned ^ 255 
 
 Recalled witness warned as to; noted in record 357(b) (27) 
 
 Standing in court during administration of 86 
 
 Substance as in statutory form sufficient 443, p. 434 
 
 To test competency ; purpose, form____ 137 
 
 Trial judge advocate and assistant ; taking by, noted in 
 
 record , 357 (b) (m 
 
 Objections, reasons for, to be stated 250 
 
 Offenses. (See Crimes and offenses.) 
 Officer : 
 
 (In a particular capacity or icith a reference to a particular 
 
 offense, see the specific title.) 
 Arrest. (See Arrest.) 
 As witness. (See Witnesses.) 
 Conduct unbecoming ; offense defined, instances, proof 
 
 445 ; A. W. 95 
 
 Discharged under selective-service act; no right to court- 
 martial , 38 (b) (note 2) 
 
 Disciplinary punishment of ; forfeiture of pay- 333, 336 ; A. W. 104 
 Dismissal. (See Dismissal.) 
 
 Drunk on duty ; offense discussed, penalty 435 ; A. W. 85 
 
 Eligibility for court-martial duty 6, 9-11 ; A. W. 4 
 
 Excepted from jurisdiction of special and summary courts- 
 martial by G. O. 71, W. D., 1920 ^ p. 656 
 
 General officer, confirmation by President of sentence re- 
 specting 378 (a) ; A. W. 48 
 
 Investigation of charges as applicable to 76a (2,6,7,9) 
 
 Not triable by general court-martial appointed at Military 
 
 Academy 14; A. W. 12 
 
 Not triable by summary court-martial 43 ; A. W. 14 
 
 Previous convictions; 3 year limitation on introduction 306 
 
 Quitting post or duties before resignation accepted ; specific 
 
 intent 281 ; A. W. 28 
 
INDEX. 759 
 
 f References are to paragraphs, except that the letter w p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Officer Continued. Par. 
 Refusal or willful neglect to deliver offender to civil au- 
 thorities ; specific intent 281 ; A. W. 74 
 
 Reprimand proper punishment for 318 
 
 Retired. (See Retired officer.) 
 
 Sentence affecting status reported to The Adjutant General 
 
 310 (note) 
 
 Sentences which may be imposed on, enumerated 310 
 
 Status, when in arrest 49 
 
 Statutory rule of evidence as to desertion 284 (a) ; A. W. 28 
 
 Subject to Articles of War 4(a) ; A. W. 2(a) 
 
 Trial of, by inferiors in rank, not usually permitted ; how 
 
 decided 12 (a) ; A. W. 16 
 
 Who may arrest, if taking part in fray, etc 47; A. W. 68 
 
 Word as used in Manual for Courts-Martial 4 (notes 1, 2) 
 
 Word construed- as " commissioned officer " ; classes ex- 
 cluded enumerated 4 (notes 1,2) A. W. l(a) 
 
 Officer commanding for time being defined, powers, examples 
 
 369, 374 ; A. W. 46 
 
 Officer preferring charges (see also Accuser) : 
 
 Investigation when commanding officer is 76a(10) 
 
 Investigation when only officer with command is 76a(10) 
 
 Name and rank stated in reading charges to accused 144 
 
 Phrase not used in signing charges App. 6(i) 
 
 Right to prefer 63 
 
 Signature with rank and organization to be added 64 
 
 Officers' Reserve Corps: 
 
 When ordered to active duty 4 (a) (note) 
 
 When reserve officers eligible for membership on court- 
 martial 9(c) 
 
 Official documents: 
 
 Bulky, not appended to record; procedure pp. 564(9), 650(5) 
 
 Foundation for admission of 237 
 
 Omission in records of trial, correction of: 
 
 General and special courts-martial 364 
 
 Summary courts-martial 365 
 
 Omitting to render returns : 
 
 Analysis and proof of offense 408 ; A. W. 57 
 
 Definitions and principles 408 
 
 Form for specification App. 6(14) 
 
 Open court: 
 
 Advice of defense counsel obtained in 107d 
 
 Advice of trial judge advocate obtained in 99, 101 
 
 Announcement of complete acquittal, required 332a ; A. W. 29 
 Announcement of findings and sentence unless court deems 
 inadvisable 332(a) 
 
760 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Opening and closing, right of trial judge advocate 293 
 
 Opening statements to court 197 
 
 Operation, refusal to submit to, an offense 68 
 
 Opinion evidence (see also Expert; Hearsay evidence) : 
 
 As to drunkenness 287 
 
 Not admissible as to reputation of witness 257 
 
 Of expert 218 
 
 Permissible as to belief in veracity of impeached witness 257 
 
 Oral statements, how pleaded 74(1) 
 
 Orderly : 
 
 For defense counsel 107g 
 
 For trial judge advocate 105 
 
 Orders, court-martial : 
 
 Acquittal merely promulgated in 372 (b) 
 
 Announcement in, not necessary to validity of sentence or 
 
 acquittal 371 
 
 Date of beginning of sentence as indicated in 401 
 
 Oregon, fees and mileage of civilian witnesses in 185 
 
 Original documents 197 
 
 Panama Canal Zone. (See Canal Zone.) 
 
 Papers. (See Documentary evidence.) 
 
 Pardon : 
 
 Defined 150 
 
 Evidence of; how offered, other evidence, constructive par- 
 don 273 
 
 Nolle prosequi is not equivalent to 158 
 
 Power to mitigate or remit sentence 381 ; A. W. 50 
 
 Privilege against self-crimination ceases on 233 (a) 
 
 Parents of minor deserters, rights of 60 
 
 Parole : 
 
 Giving different parole; analysis and proof of offense 427; 
 
 A. W. 77 
 
 Giving different parole; definitions and principles 427 
 
 Giving different parole; form for specification App. 6(62) 
 
 Making known ; analysis and proof of offense 427 ; A. W. 77 
 
 Making known; definitions and principles 427 
 
 Making known; form for specification App. 6(61) 
 
 Revoked, interrupts execution of sentence 401 
 
 Violation of, how pleaded 74(1) 
 
 Patients, statements to military or civilian doctors not privi- 
 leged 231, 232 
 
 Pay and allowances : 
 
 Court-martial can not order assignment of 325, 329 
 
 Court-martial can not order deposit of 326 
 
 Detention. (See Detention of pay.) 
 
INDEX. 761 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Pay and allowances Continued. Par 
 
 Extra, for clerical duties, when forbidden 118 
 
 Forfeiture. (See Forfeiture.) 
 Stoppage. (See Stoppage of pay.) 
 
 Pay card of accused, data on 79(a) ; App. 5(6) 
 
 Pay voucher, authentication of 239 
 
 Peace : 
 
 Delivery of offenders to civil authorities in time of__ 35 ; A. W. 74 
 Desertion in time of; Department policy regarding pun- 
 ishments 340 
 
 Judicial notice of condition of 289 
 
 Maximum limits of punishment in penitentiary cases 348 
 
 Officer dismissed in time of, only by sentence of court- 
 martial 38 (b) (notes) ; A. W. 118 
 
 Repeated desertion in time of, penitentiary offense ; rule to 
 
 be applied 40, 337 ; A. W. 42 
 
 Penal code of United States : 
 
 As guide for penitentiary sentence and duration of same. 40, 338 ; 
 
 A. W. 42, 45 
 As source of definitions for crimes and offenses under A. W. 
 
 92, 93 442, p. 408 
 
 Penitentiary : 
 
 Authority for sentence to, cited in forwarding record 339 
 
 Classes of offenses to be executed in 40, 337, 338 ; A. W. 42 
 
 Clemency applications in cases of prisoners in 402 
 
 Directly or indirectly under Federal jurisdiction, as place of 
 
 punishment 396 ; A. W. 42 
 
 Instructions as to place of confinement by Department 341 
 
 Limits in peace time on sentence to 309 ; A. W. 42 
 
 Propriety of designating as place of punishment discussed 342a 
 Review by board of review and Judge Advocate General 
 
 of sentences to 371, 399a ; A. W. 50* 
 
 Segregation of classes of prisoners 341 
 
 Sentence to ; analogy to cases of a civil nature.. 337 
 
 When sentence in, may be imposed 40, 337, 396 ; A. W. 42, 45 
 
 Peremptory challenge, right of- - 120, 120a ; A. W. 18 
 
 Perjury (see also False swearing) : 
 
 Analysis and proof of offense . 443, p. 432 ; A. W. 93 
 
 Definitions and principles - 443, p. 413 
 
 Forms for specifications - App. 6 
 
 Intent inseparable from act 280 
 
 Limitation of three years 
 
 Number of witnesses required to sustain charge- 
 Personal interest of commanding officer in sale of provisions... 437; 
 
 A. W. 87 
 
762 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and ' App." indicates Appendix.] 
 
 Personnel adjutant : Par. 
 
 Duties respecting record of summary court conviction 79 (a) 
 
 Initials charge sheet of summary court as to pay card 
 
 entries App. 5(6) 
 
 Special court-martial order, forwarding by 400 
 
 Special court-martial records; delivery to and return by 367 (b) 
 
 Persons subject to military law , 4 ; A. W. 2 
 
 Persuading desertion : 
 
 Analysis and proof of offense 410 ; A. W. 59 
 
 Definitions and principles ^ 410 
 
 Form for specification App. 6(23) 
 
 Petit juries, deliberations as privileged communications 227 
 
 Petition for writ of habeas corpus. (See Habeas corpus.) 
 Philippine Islands: 
 
 Civilian employees in, when not Federal employees 171 (note) 
 
 Fees and mileage of civilian witnesses in 185 (note 2) 
 
 Trial in" either military or civil court in, is bar to trial in 
 
 other for same offense 149(3) (d) 
 
 Witnesses before general courts-martial, procedure to obtain 
 
 in 171 
 
 Witnesses; no provision as to special and summary courts 
 
 in 171 
 
 Writ of habeas corpus issued in , ,_ 480 
 
 Photographs as evidence 245 
 
 Physical examination : 
 
 Compulsory submission to, not self-crimination 236, 236 (a) 
 
 Paper containing, admissible without calling officer mak- 
 ing 238a 
 
 Rulings on, in courts-martial ; by whom 89, 89a 
 
 Physicians : 
 
 Statements to civilian, not privileged; penalty for refusal 
 
 to testify 232 
 
 Statements to military, not privileged; penalty for refusal 
 
 to testify 231 
 
 Pillage, quitting post to, analysis and proof, penalty, forms 425, 
 
 pp. 377, 380 ; A. W. 75 ; App. 6(58) 
 Place : 
 
 Allegations of in specifications discussed; exaiiip'.es.^ .. 74 (g) 
 
 Of meeting of courts-martial, how determined . 81 
 
 Where troops on duty, when commanding officer may ap- 
 point special courts-martial 21 ; A. W. 9 
 
 Where troops on duty, when commanding officer may ap- 
 point summary courts-martial 25 ; A. W. 10 
 
 Pleading (see also Pleas) : 
 
 Absence without leave to charge of desertion 298 
 
 Alias 74 (i) 
 
INDEX. 763 
 
 [References are to paragraph* except that the letter "p" Indicates page, 
 "A. W." indicate* Articles of War, and " App." Indicate* Appendix.] 
 
 Pleading Continued. Par. 
 
 Allegations of time and place 74 (g) 
 
 Alternative, forbidden 74 (c) 
 
 Change of rank 74 (k) 
 
 Charge should be limited to statement of article violated 74 (a) 
 
 Consideration of pleadings in voting on findings 294 
 
 Description of accused 74 (b) 
 
 Desertion followed by fraudulent enlistment 74 (n) 
 
 Disgraceful offenses 74 (m) 
 
 Evidence not proper 74 (d) 
 
 General prisoner, description of 74(j) 
 
 In words of statute 74 (p) 
 
 Larceny and sale of public property 74 (o) 
 
 Method of oral, to charges and specifications 144 
 
 Name of accused , 74(h, i) 
 
 Necessity of alleging intent 281 
 
 Offenses against specific articles 74 (e) 
 
 Oral statements 74(1) 
 
 Place ^ 74 (g) 
 
 Sale of stolen public property 74 (o) 
 
 Scandalous offenses 74 (m) 
 
 Specification must be appropriate to charge 74 (b) 
 
 Time . 74 (g) 
 
 Written instrument 74(1) 
 
 Pleas (see also Pleading) : 
 
 Change by permission of court 154 (b) 
 
 Guilty 
 
 Before summary court; procedure 351 (d) 
 
 Change to not guilty by court, when 154(d) (e) 
 
 Explanation to accused, what to contain 154 (d) 
 
 Explanation to and answers of accused, required in 
 
 record 357(b) (22, 23) ; App. 6 
 
 Taking evidence after; procedure; matter in mitiga- 
 tion 154(e) 
 
 "Without criminality," equivalent to not guilty 154(f) 
 
 In abatement- 
 
 Nature, error indicated, procedure, waiver 147 
 
 In bar of trial- 
 Constructive condonation of desertion 151 
 
 Disciplinary punishment 333; A. W. 104 
 
 Double jeopardy may be raised by 149(3) K 
 
 Former punishment 152(a) 
 
 Former trial as basis; proof required 274 
 
 Insanity, etc., need not be specially pleaded 148 (note) 
 
 Nature, grounds 148 
 
 Pardon, proof required 150, 273 
 
764 INDEX. 
 
 [References are to paragraphs, except that the letter "p M indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Pleas Continued. Par. 
 
 Kinds enumerated 145 
 
 Not guilty 
 
 Change by court of plea of guilty to : 154 (d) (e) 
 
 Fermer jeopardy may be raised by 149(3) (g) 
 
 Insanity, etc., at time of commission of acts 154 (g) 
 
 Record of general court-martial to contain 357 (b) (20) 
 
 Refusal to plead ; procedure ; insanity 155 ; A. W. 21 
 
 Special 
 
 Certain matters enumerated inadmissible under_ 152(b) (c) (d) 
 
 Illegal enlistment is not 152 (b) 
 
 In special court-martial ; record to set out in full 358 (e) . 
 
 Not necessary to raise question of insanity, etc., during 
 
 trial 219 (a) 
 
 Pleading to general issue when overruled 153 (d) 
 
 Procedure when sustained; action of reviewing au- 
 thority 153 (b) 
 
 Procedure when sustained as to certain charges and 
 
 specifications 153 (c) 
 
 Several, to any charge or specification permitted 153 (a) 
 
 Statement of, evidence, burden of proof, record 153 (a) 
 
 Three kinds of 145 
 
 To the general issue; usual form described 154 (a) 
 
 To the jurisdiction 
 
 Failure of record to show jurisdiction as invalidating 
 
 proceedings 146 
 
 Nature; grounds for; if sustained, bars further prose- 
 cution 146 
 
 Objection taken at any time 146 
 
 Pledge of military property, taking ; offense defined, proof. 444, p. 458 ; 
 
 A.W. 94 
 
 Plunder, quitting post to, analysis and proof, penalty, forms 425, 
 
 pp. 377, 380 ; A. W. 75 ; App. 6 (58) 
 
 Police secrets as privileged communications 227 
 
 Policy of War Department. (See War Department.) 
 
 Polygamy, wife may testify against husband accused of 228 
 
 Porto Rico: 
 
 Fees and mileage of civilian witnesses in 185 
 
 Trial in either civil or military court in, bar to trial in other 
 
 for same offense 149(3) (d) 
 
 Possession in larceny defined 443, p. 428 
 
 Post: 
 
 As place of confinement of general prisoner 398 
 
 Demand for prison labor not to affect segregation policy 399 
 
 Judicial notice of orders of 289 
 
 Quitting, to plunder or pillage 425, p. 380 ; A. W. 75 
 
INDEX. 765 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Post Continued. Par. 
 
 Restriction to limits, nature of punishment 319 
 
 Sentinel's misbehavior on 436 ; A. W. 86 
 
 Post exchange: 
 
 Commanding officer interested in sale of articles by, offense 
 under A. W. 87 437 
 
 Embezzlement by former officer of funds of 444, p. 459 ; A. W. 94 
 Post Office Department, presumption as to receipt of letters 
 
 from course of business in 278 
 
 Premeditation. (See Intent.) 
 
 Preponderance of evidence 296 
 
 President of United States : 
 
 Appointment of court-martial to try officer dismissed on 
 
 his order 15 (note) 
 
 Authority vested in, as a source of military jurisdiction 1 
 
 Clemency applications forwarded for action of ; six months' 
 
 interval 402, 404 
 
 Commutation of sentence of dishonorable discharge by 382 
 
 Commutation of sentences, sole power of, unless delegated 
 
 under A. W. 50 384 
 
 Confirmation of what sentences required by 378 ; A. W. 48 
 
 Courts of inquiry 
 
 Discretion as to publication of proceedings of 472 
 
 May be ordered by, in his discretion 447, 449 ; A. W. 97 
 
 Disrespect toward ; penalty 413 ; A. W. 62 
 
 Exception of classes from trial by special court by 41(1) ; 
 
 A. W. 13 ; App. 21, 656 
 
 Exception of classes from trial by summary court by 43(2) ; 
 
 A. W. 14 ; App. 21, p. 656 
 
 Limitations of punishment on order of 40 ; A. W. 45 
 
 Loss of files; confirmation not necessary, alone can restore 
 
 files 390 ; A. W. 50 
 
 Marine Corps officers on duty with Army by order of, 
 
 eligible for court-martial duty 6, 10 ; A. W. 4 
 
 May appoint general courts-martial as commander in chief. 15 
 
 May appoint general courts-martial under A. W. 8 14 ; A. W. 8 
 
 May appoint general courts-martial under R. S. 1230 15 
 
 May empower any commanding officer to appoint general 
 
 courts-martial 14 (note 1) A. W. 8 
 
 Mitigation or remission of sentences; powers, in general- 381; 
 
 A. W. 50 
 Officer discharged under selective draft act by, not entitled 
 
 to trial 38(b) (note2) 
 
 Pardon as act of, defined; how evidenced 150,273 
 
 Power to drop officers from the rolls 38(b) (note 3) 
 
 Power to prescribe maximum punishments- 309, 348, 349 ; A. W. 45 
 21358 20 49 
 
766 INDEX. 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 President of United States Continued. Par. 
 
 Power to prescribe modes of proof 198 ; A. W. 38 
 
 Procedure on sentences under A. W. 46, 48, 51, requiring 
 
 approval or confirmation by 399a, 400 ; A. W. 50} 
 
 Record of general court-martial appointed by, sent direct to 
 
 Judge Advocate General 366 (a) 
 
 Regulations as to disciplinary punishments 333 
 
 Regulations for review of general court or military commis- 
 sion records prescribed by 370 
 
 Rehearing of disapproved or vacated sentence may be di- 
 rected by : 377a ; A. W. 50} 
 
 Reserve officers ordered to active duty by, eligible for 
 
 court-martial duty 9(c) 
 
 Retired officers ordered to active duty by, eligible for court- 
 martial duty 9(b) 
 
 Review of cases under A. W. 50$, duties in connection with. 399a 
 Sentence requiring approval or confirmation of, requires 
 prior action of board of review and Judge Advocate Gen- 
 eral 371 ; A. W. 50} 
 
 Suspension of sentence until pleasure of, known 391 ; A. W. 51 
 
 Presumption : 
 
 Genuineness of document from official seal, signature, etc 236a 
 
 Intent in connection with crime 280 
 
 Of general capacity of witness 210 
 
 Of desertion, from absence without leave 284 
 
 Of fact- 
 Condition or state of things as continuing 278 
 
 Defined, nature, examples 278 
 
 Of law- 
 Defined, conclusive and disputable, examples 277 
 
 Knowledge of Federal, State, and municipal law 282 
 
 Knowledge of military law, regulations, orders, etc 282 
 
 Prima facie evidence, defined r 279 
 
 Prima facie evidence may be outweighed by presumption 
 
 of innocence 279 
 
 Soldier presumed to know officers of his command, when 283 
 
 Two kinds, of law and of fact 276 
 
 Pretense defined under A. W. 64 415 
 
 Previous convictions : 
 
 Accused asked concerning, shown in record 357 (b) (45) 
 
 Appending to record, shown in record 357 (b) (44) 
 
 As ground for dishonorable discharge 349 (VI), 284 
 
 Considered by court before determining sentence 271 
 
 Considered by summary court-martial 351 (g) 
 
 Defined; effect of remission; why considered 307 
 
INDEX. 767 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Previous convictions Continued. Par. 
 
 Not considered until after findings 271, 307 
 
 Not proof of present guilt 307 
 
 Opening of court to receive, shown in record 357 (b) (42) 
 
 Procedure as to consideration ; limitations of time p. 284 ( V) ; 306 
 
 Proof of ; how made, copies, disposal 306 
 
 Statement of, not shown court before findings 271 
 
 Prices, judicial notice of Government 289 
 
 Prima facie evidence defined (see also Presumption) 279 
 
 Prior offenses subject to previous laws 487 
 
 Prison discipline: 
 
 Means of enforcing 345 
 
 Sentence of court-martial not to interfere with 330 
 
 Prisoner (see also Accused) : 
 
 Absence of, effect on date of beginning sentence of confine- 
 ment 401 
 
 Change of place of confinement 389 
 
 Clemency applications ; who may pass on, when 402 
 
 Confinement. '(See Confinement.) 
 
 Escape through neglect or design; offense analyzed; pen- 
 alty 57, 423 ; A. W. 73 
 
 General; form of specification in charging 74(j) 
 
 Habeas corpus. (See Habeas corpus.) 
 Instructions by Department as to penitentiaries for con- 
 finement 341 
 
 Offense by, when second sentence takes effect 401 (b) 
 
 Placing in irons not permitted, exceptions ; shackles, hand- 
 cuffs 56 
 
 Refusal to receive or keep ; penalty 55, 421 ; A. W. 71 
 
 Release without proper authority ; offense analyzed ; pen- 
 alty 57, 423 ; A. W. 73 
 
 Remains subject to military law 38 (c) ; A. W. 2 
 
 Report by commander of a guard on receipt of- 55 (note) ; A. W. 72 
 
 Segregation by classes of offenses 341 
 
 Sentences legally imposable on general 330 
 
 Term includes civil or military prisoner under A. W. 71-73- 
 
 421-423 
 
 Prisoner of war : 
 
 Forcing a safeguard,; penalty 428; A. W. 78 
 
 Return to writ of habeas corpus in Philippine Islands con- 
 cerning 480 
 
 Private : 
 
 Included under word "soldier" 4 (note 1) ; A. W. l(b) 
 
 May be " commander of a guard " under A. W. 71 421 
 
 Reduction in classification may be made by special court 
 unless changed by Executive order 42 (note) 
 
768 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Private Continued. Par. 
 
 Reduction in classification may be made by summary court 
 
 unless changed by Executive order 44 (note) 
 
 Reduction of noncommissioned officer by sentence to be to 
 
 grade of p. 656 
 
 Private claims against officers and soldiers, when matter for 
 
 discipline 71 
 
 Privileged communications : 
 
 Attorney and client, communications between; third par- 
 ties may testify 227 
 
 Civilian physicians, statements to, not 232 
 
 Confidential papers, reports, etc 230 
 
 Defined ; w r hen privilege available 227 
 
 Deliberations of courts and juries, but not results thereof 227 
 
 Diplomatic correspondence 227 
 
 Husband and wife ; third party may testify 227, 228 
 
 Husband and wife; wife may testify in bigamy, etc., prose- 
 cution 228 
 
 Matter which President directs to be withheld 227 
 
 Medical officers, statements to, not 231 
 
 Official communications between heads of departments 227 
 
 Police secrets 227 
 
 Reports of Judge Advocate General to Secretary of War 230 
 
 Special inspection reports, Inspector General's Department- 230 
 
 Telegrams not, subject to usual process 229 
 
 Privileges, sentence of deprivation of, continuous, exceptions 401 
 
 Process. (See Witnesses.) 
 
 Prohibited punishments 344, 345 
 
 Promotion : 
 
 Of member of court by dismissal of accused, ground for chal- 
 lenge . 121(6) 
 
 Soldier holding certificate of eligibility to, may be sen- 
 tenced to loss of rights and privileges thereunder 311 
 
 Soldier holding certificate of eligibility to, not triable by 
 
 summary court-martial 43 ; A. W. 14 
 
 Suspension from rank deprives of right to 314 
 
 Prompt action on charges 77a; A. W. 70 
 
 Promulgation of Manual for Courts-Martial xxi 
 
 Promulgation of sentence, date of beginning of sentence from 
 
 order of 401 
 
 Proof : 
 
 (Required in a specific offense, see that offense ly name; 
 
 see Evidence.) 
 Property : 
 
 Captured or abandoned 
 
 Dealing in ; analysis and proof of offense, penalty 430 ; 
 
 A. W. 80 
 
INDEX. 769 
 
 [References are to paragraphs, except that the letter **p" Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Property Continued. 
 
 Captured or abandoned Continued. Par. 
 Dealing in or not reporting; forms for specifica- 
 tions App. 6(66,67) 
 
 Definitions and principles concerning 430 ; A. W. 80 
 
 Failure or delay in reporting receipt of; analysis and 
 
 proof of offense, penalty 430 ; A. W. 80 
 
 Captured public 
 
 Belongs to United States, misappropriation, penalty 429 ; 
 
 A. W. 79 
 
 Definitions and principles concerning 429 
 
 Neglecting to secure ; analysis and proof of offense, pen- 
 alty, form for specification 429; A. W. 79; App. 6 (64) 
 
 Wrongful appropriation of; analysis and proof of of- 
 fense, penalty, form for specification 429 ; 
 
 Injuries to A - w 79 > A PP- 6 < 65 > 
 Board of officers, scope, procedure, assessment of dam- 
 ages 481 
 
 Redress under A. W. 105, procedure 481 
 
 Larceny. (See Larceny.) 
 
 Military property. (See Military property.) 
 
 Personal property only subject of larceny 443, p. 430 
 
 " Selling " a distinct offense from " through neglect losing "_ 299 
 Willfully destroying 
 
 Analysis and proof of offense 439 ; A. W. 89 
 
 Definitions and principles 439 
 
 Forms for specifications App. 6(28-84) 
 
 Willfully or negligently losing 
 
 Analysis and proof of offense 433 ; A. W. 83 
 
 Definitions and principles 281, 433 
 
 Form for specification App. 6 (73) 
 
 Prosecutor (see also Accuser; Trial judge advocate) : 
 
 Defined and principles discussed 17, 22 
 
 May not appoint general or special court-martial to try ac- 
 cused 14, 21 ; A. W. 8, 9 
 
 Provisions for camp, post, etc. : 
 
 Abusing, intimidating, etc., person bringing; offense de- 
 scribed, penalty 438 ; A. W. 88 
 
 Commanding officer not to be interested in ; penalty- 437 ; A. W. 87 
 Commanding officer not to lay duty on entry into post, etc. ; 
 
 penalty 437 ; A. W. 87 
 
 Provoking speeches or gestures. (See Reproachful or provok- 
 ing speeches or gestures.) 
 Provost courts: 
 
 Concurrent jurisdiction with courts-martial 3 (a), 45; A. W. 15 
 
 Jurisdiction stated 3(a), 3(b) (notel) 
 
770 INDEX. 
 
 [Inferences are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Provost marshal: Par. 
 
 May receive prisoner without account of charge, etc 421 
 
 Refusal to receive or keep prisoner, accompanied by written 
 
 account of offense ; penalty 55, 421 ; A. W. 71 
 
 Psychiatrist : 
 
 Accused furnished copy of report of 77b 
 
 Examination of accused during investigation of charges 76a(9) 
 Examining accused may be member of later appointed med- 
 ical board 76c 
 
 Public officers: 
 
 Presumption as to holding to end of term 278 
 
 Presumption as to legality of appointment and of perform- 
 ance of duties 277 
 
 Public property. (See Property.) 
 
 Public records. (See Documentary evidence.) 
 
 Public trial, when proper 92 
 
 Publication : 
 
 In newspapers of officer's conviction of cowardice or fraud- 347 : 
 
 A. W. 44 
 
 Modification of sentence before 387 
 
 Of court-martial orders 400 
 
 Of court of inquiry proceedings ; discretion 472 
 
 Publications read to court-martial 357 (b) (32) 
 
 Punishment (see also Sentence) : 
 
 Of a particular kind; for more detailed treatment, see the 
 specific title.) 
 
 Adaptation to offenders discussed 342, 342a 
 
 Appeal from disciplinary ; effect, procedure, contents 333, 335 
 
 By general courts-martials ; penitentiary sentences, limits 40 ; 
 
 A. W. 42 
 
 Capital crimes and offenses enumerated 41 
 
 Classes of 343 
 
 Confinement at hard labor 322 
 
 (See also Confinement.) 
 
 Considerations governing selection of court for trial 78 
 
 Contempts; approval by reviewing authority 173 (a) ; A. W. 32 
 
 Cruel and unusual prohibited 344 ; A. W. 41 
 
 Death. (See Death sentence.) 
 
 Detention of pay or part of pay 328 
 
 Disciplinary 
 
 Applicable to any person subject to military law 336 
 
 As applicable to officers, discussed 336, 33Gb 
 
 Formal charges not neceisary ; procedure 33Cc 
 
 Procedure where accused demands trial 336d 
 
 Should be preferred to summary court-martial 336a 
 
 Discretionary, defined and discussed 309 
 
TKDEX. 771 
 
 [References are to paragraphs, except that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." Indicates Appendix.] 
 
 Punishment Continued. Par. 
 
 Dishonorable discharge 320 
 
 Dismissal 312 
 
 Effect of previous conviction on 307 
 
 Effect of turning State's evidence on 216 
 
 Executive order 348, 349 
 
 Proper construction of 309 (note 3) 
 
 Fine 317 
 
 For field clerks, Army or Quartermaster Corps 310a 
 
 For general prisoners 330 
 
 For members of Army Nurse Corps 310a 
 
 For officers 310 
 
 For same act, charged as two or more offenses improper 66 
 
 For soldiers 311 
 
 For warrant officers 310a 
 
 Forfeiture of pay and allowances 324 
 
 Hard labor without confinement 323 
 
 Limitations by Executive order 349 
 
 Limitations in peace time on penitentiary sentence. 309 ; A. W. 42 
 
 Loss of rank or files 
 
 Mandatory 
 
 Can not be varied 349 
 
 Defined and discussed 309 
 
 Maximum, as prescribed by Executive order 349 
 
 Military duty not to be imposed as 345 
 
 Mitigation. (See Mitigation.) 
 
 Obsolete enumerated 345 
 
 Offenses committed before present Articles of War effective- 487 
 
 Penitentiary sentence, when may be imposed 40 ; A. W. 42, 45 
 
 Policy of War Department regarding 340-343 
 
 Procedure to be followed by court in considering 349 
 
 Prohibited "kinds enumerated 344, 345 
 
 Proper as prison discipline 345 
 
 Pvecord of disciplinary, how kept 334 
 
 Reduction of noncommissioned officer 327 
 
 Reprimand 3lS 
 
 Restriction to limits 319 
 
 Severity can not be increased by reviewing or other officer 385 
 
 Suspension from command 315 
 
 Suspension from duty 316 
 
 Suspension from rank 314 
 
 Table of equivalents 349 ; p. 283 
 
 Table to determine relative severity 343 
 
 Punitive articles 405-446 
 
 Purchasing military property unlawfully; offense defined, 
 
 proof 444, p. 45S; A. W. 94 
 
772 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Par. 
 
 Quarrels, power to quell, persons enumerated, penalty for diso- 
 bedience 419 ; A. W. 68 
 
 Quartermaster Corps, field clerks. (See Field Clerks Army 
 
 and Quartermaster Corps.) 
 Questions and answers: 
 
 Set out in record of general court-martial 357 (b) (29) 
 
 When questions reduced to writing by counsel 111 
 
 Quitting guard. (See Absence without leave; Misbehavior of 
 
 sentinel. ) 
 Quitting post or colors to plunder or pillage : 
 
 Analysis and proof of offenses 425, pp. 377, 381 ; A. W. 75 
 
 Definitions and principles 425, pp. 377, 380 
 
 Form for specification App. 6(57) 
 
 Quitting post an included offense 377 
 
 Quitting post or duties before resignation accepted : 
 
 Analysis and proof of offense 409 ; A. W. 28, 58 
 
 A. W. 28, a rule of evidence and not a punitive article 74 (n) 
 
 Specific intent required 281 
 
 Form for specification App. 6(18) 
 
 Rank: 
 
 Arrest or confinement on orders of subordinate in__ 419 ; A. W. 68 
 
 Change during trial of member's 93 
 
 Change, how pleaded . 74 (k) 
 
 Court of inquiry, members of 456 
 
 Hearsay not cured by reason of rank of declarant 221 
 
 Loss of 
 
 How accomplished 313 
 
 Legal sentence for officers 310 
 
 Report of sentence affecting officer to The Adjutant 
 
 General 310 ( note ) 
 
 Members of a court of inquiry 456 
 
 Members of general and special courts-martial named and 
 
 sit in order of 12 (a) 
 
 Not to affect the rules of evidence 200 
 
 Of defense counsel, not below grade of captain if avoidable. 107a 
 Power of court-martial to correct designation of, on con- 
 viction 299 
 
 Power to appoint courts-martial not dependent on 19, 23 
 
 Precedence among regulars, militia and volunteers 
 
 10-12 ; A. W. 119 
 
 Rules for determination among officers 12 (b) ; A. W. 119 
 
 Seating of members of court-martial according to 83 
 
 Sentence to reduction in, of officer, illegal 40(note4) 
 
 Statement of in charge, when changed since offense 74 (k) 
 
 Suspension; effect 314 
 
INDEX. 773 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Rank Continued. Par. 
 Trial by juniors in, forbidden if avoidable ; question of dis- 
 cretion 12(a) ;A. W. 16 
 
 Rape: 
 
 Capital offense at all times 41 ; A. W. 92 
 
 Carnal knowledge of female under 16, distinguished 446(4) 
 
 Certain assaults included in offense of 377 
 
 Conviction of, confirmation required by whom 378 (d) A. W. 48 
 
 Definitions and principles, proof, penalty 442, pp. 408, 411 ; 
 
 A. W. 92 
 
 Drunkenness not strictly a defense 285 
 
 Form for specification App. 6(93) 
 
 Hanging, usual form of execution if death penalty imposed- 346 
 
 Intent inferable from act 280 
 
 Statutory, not included under offense of 446, p. 465 (4) 
 
 Rating, specialist, loss by sentence of general or special court- 
 martial, legal 311 
 
 Ration savings, embezzlement by former officer of_ 444, p. 459 ; A. W. 94 
 
 Real evidence, exhibition of body of accused 236 (a) 
 
 Reasonable doubt: 
 
 Corpus delicti need not be established beyond 225 (c) 
 
 Defined; burden of proof on prosecution 288 
 
 Issues arising during trial settled by preponderance of evi- 
 dence 296 
 
 Prima facie evidence as affecting doctrine of 279 
 
 Proof of guilt must be established beyond 296 
 
 Reasons : 
 
 For findings, may be spread on record 302 
 
 For sentence may be spread on record 331 
 
 For weight given testimony or amount rejected not stated ; 
 
 exception 256 
 
 Receipt : 
 
 Court-martial can not require soldier to give 325 
 
 Delivering of less than amount called for; examples, pen- 
 alty 444, p. 454 ; A. W. 94 
 
 Making or delivering without knowledge that it is true; 
 
 examples, penalty .- 444, p. 455 ; A. W. 94 
 
 Recollection. (See Refreshing recollection.) 
 
 Recommendation : 
 
 For clemency, by court-martial or member thereof 332 
 
 For suspension of dishonorable discharge 321 
 
 Reconsideration (see also Rehearing; Revision): 
 
 Of findings where insufficient votes to sustain mandatory 
 sentence 309 (note 2) 
 
 Recorder of court of inquiry. (See Court of inquiry.) 
 
774 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Records of courts-martial: Par. 
 
 Bulky documents not appended; procedure pp.564 (9), 650 (5) 
 
 Carbon copy for accused, when made 117, 3G6(b) 
 
 Contents of record stated generally and in detail 357 
 
 Defined, how prepared, by whom, supervision 355 
 
 Disrespectful or otherwise improper matter may be omitted. 291 
 General court-martial 
 
 Appendages to, enumerated 357 (b) 56 
 
 Carbon copy not desired by accused, disposition 355a 
 
 Disposition by trial judge advocate 366 (a) 
 
 Disposition, with accompanying papers, by appointing 
 
 authority 367 ( a ) 
 
 Form App. 10, p. 616 
 
 Record required in each case, authentication 354 ; A. W. 33 
 
 Return for correction of error, omission, etc.; restric- 
 tion 364 
 
 Signature and affidavit no part of charges but copied 
 
 into record 64 
 
 Legal record defined 355 
 
 Loss or destruction; procedure 368 
 
 Original as evidence of former trial 274 
 
 Prepared by trial judge advocate under direction of court 
 
 and in consultation with defense counsel 355 
 
 Previous convictions ; use on trial, disposal, return 306 
 
 Receipt of accused as to delivery of copy or affidavit of de- 
 livery 366(b) 
 
 Recommendation that dishonorable discharge be suspended 
 
 may accompany 321 
 
 Revision. (See Revision.) 
 
 Separate, complete, and independent for ench case 356 
 
 Special court-martial 
 
 Binding of records 3G2 
 
 Briefed as for a general court 361^ 
 
 Certain named data appended to 358 (b-f) 
 
 Disposition by trial judge advocate 366 (a) 
 
 Disposition, with accompanying papers, by appointing 
 
 authority 367 (b) 
 
 Form App. 11 
 
 Form and substance, in general, as for general court 358 
 
 Index not required 360 
 
 Number of copies 359 
 
 Space at end for action of reviewing authority 358 (h) 
 
 Oral testimony not recorded, exceptions, summary 358 (b) 
 
 Return for correction of error, omission, etc. ; restric- 
 tion 364 
 
 Signature and affidavit no part of charges but copied 
 into record _. 64 
 
INDEX. 775 
 
 [References are to paragraphs, cept that the letter "p" Indicates page, 
 " A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Records of courts-martial Continued. 
 
 Summary court-martial Par. 
 
 Company commander initials charge sheet as to service 
 
 record entries App. 5(6) 
 
 Disposition of copies of charges 79 (a) 
 
 Entry of " only officer " present with command 27 
 
 Form and substance of records 363 ; A. W. 12 
 
 Matter to be noted on, described 351(d) (f) (h) (i) (j) 
 
 Personal adjutant initials charge sheet as to pay-card 
 
 entries App. 5(6) 
 
 Records filed in office of commanding officer 367 (c) 
 
 Records of what action by court and commanding officer 
 
 required 363 
 
 Records transmitted to appointing authority 351(j) 
 
 Return- for correction of omission, error, etc 365 
 
 Time limit for preparation erf 116 
 
 Records of court of inquiry. (See Court of inquiry.) 
 
 Records of disciplinary punishment, how and where kept 334 
 
 Recross examination. (See Witnesses.) 
 Recruiting duty : 
 
 " Commanding officer " defined, with reference to appointing 
 
 summary court 26 
 
 Retired officer as summary court when on 9(b) 
 
 Recruits : 
 
 Articles of War read to 282 ; A. W. 110 
 
 Unassigned; part of Regular Army 4(a)(notea) 
 
 Redirect examination. (See Witnesses.) 
 Redress : 
 
 For injuries to property 481 ; A. W. 105 
 
 Of wrongs ; duty of commanding officer, penalty for refusal, 
 
 etc 439, 481 ; A. W. 89 
 
 Officer or soldier may seek of higher authority 485 ; A. W. 121 
 
 Reduction in classification of privates : 
 
 By special court-martial unless changed by Executive order. 42 
 
 (note) 
 By summary court-martial unless changed by Executive 
 
 order 44 (note) 
 
 Reduction in rank, sentence of officer to, illegal 40(note4) 
 
 Reduction to seventh grade, legal sentence for enlisted man of 
 
 sixth or higher grade 311 
 
 Reduction to the ranks : 
 
 Executive order as requiring in certain cases p. 2S4(IV) 
 
 By special court-martial, when legal sentence 42 (note) 
 
 By summary court-martial, when legal sentence 44 (note) 
 
 Of noncommissioned officer by special court unless changed 
 by Executive order 42 (note) 
 
776 INDEX. 
 
 [References are to paragraphs, except that the letter "p** Indicates page, 
 "A. W." Indicates Articles of War, and " App." Indicates Appendix.] 
 
 Reduction to the ranks Continued. Par. 
 
 Of noncommissioned officer by summary court unless 
 
 changed by Executive order 44 (note) 
 
 Punishment regulated by Executive order 827,849 
 
 Sentence improper for members of Army Nurse Corps, 
 
 warrant officers, or field clerks 310a 
 
 To be to grade of private and not private, first class p. 656 
 
 Refreshing recollection : 
 
 Books of account may be used for 244 
 
 Leading questions may be asked for purpose of 254 (c) 
 
 Memoranda used for purpose of 241-243 
 
 Refusal to aid in apprehending accused person : 
 
 Analysis and proof of offense 281, 424 ; A. W. 74 
 
 Definitions and principles 424 
 
 Form for specification App. 6(49) 
 
 Refusal to deliver accused person : 
 
 Analysis and proof of offense 281, 424 ; A. W. 74 
 
 Definitions and principles 424 
 
 Form for specification App. 6 (49) 
 
 Refusal to plead 155 ; A. W. 21 
 
 Refusal to receive or keep prisoner : 
 
 Analysis and proof of offense 421 ; A. W. 71 
 
 Definitions and principles 421 
 
 Failure to receive or keep, an included offense 377 
 
 Form for specification App. 6(46) 
 
 Regiment : 
 
 Commanding officer may appoint special courts-martial- 21 ; 
 
 A. W. 9 
 
 Commanding officer may appoint summary courts-martial. 25; 
 
 A. W. 10 
 
 Commanding officer's summary court powers, although part 
 of brigade 29 
 
 Regular Army : 
 
 Composition 4 (a) (note a) 
 
 Officers and soldiers in, subject to Articles of War 4 (a) ; 
 
 A. W. 2(a) 
 
 Rehearing : 
 
 Different court to hear ; what will satisfy A. W. 50*_ 377a(note2) 
 
 Double jeopardy rule as applicable to ' 149(3) (e) 
 
 Former witnesses, procedure as to testimony 377a 
 
 Power to remand a case of conduct unbecoming an officer 
 
 for : 377 
 
 Power to remand for, under power of confirmation 379 (c) 
 
 Privilege against self-incrimination continues on 233 (a) 
 
 Procedure described in detail 377a ; A. W. 50} 
 
 Record, appendages to 357 (b) (57) 
 
INDEX. 777 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Rehearing Continued. Par. 
 
 Records ; duties of trial judge advocate ; rights of counsel, 
 
 examination by members 377a 
 
 Review or opinion on errors ; duties of trial judge advocate, 
 
 rights of counsel 377a 
 
 Right to order ; new court ; limitation 377a ; A. W. 50i 
 
 Table to determine relative severity of punishments, for use 
 
 on 343; A. W. 40(d) 
 
 Witnesses may testify in person on 377a(notel) 
 
 Release of accused at conclusion of favorable trial 332a ; A. W. 29 
 
 Releasing a prisoner without proper authority : 
 
 Analysis and proof of offense 423 ; A. W. 73 
 
 Definitions and principles 423 
 
 Form for specification App. 6(48) 
 
 Relevancy of evidence defined 202 
 
 Relieving the enemy. (See Enemy.) 
 
 Reminder of recalled witness of oath 255 
 
 Remission of sentence (see also Sentence) : 
 
 At time of approval, effect 383 
 
 Commanding generals who may be empowered by President 
 
 to remit sentences 381; A. W. 50 
 
 Does not prevent use as previous conviction 307 
 
 During suspension 392 ; A. W. 52 
 
 Of suspended dishonorable discharge, a matter of clemency. 403 
 
 Removal of causes from State courts : 
 
 Civil suits against persons in military service 484 ; A. W. 117 
 
 Criminal prosecutions against persons in military service- 484; 
 
 A. W. 117 
 
 Reparation, refusing or omitting to see made : 
 
 Analysis and proof of offense 439 ; A. W. 89 
 
 Definitions and principles 439 
 
 Form for specification App. 6(86) 
 
 Repeal of former Articles of War not to affect prior offenses 487 
 
 Report : 
 
 Of inquest, form App. 26, p. 678 
 
 Of prisoners received ; penalty for failure 422 ; A. W. 72 
 
 Of receipt of captured or abandoned property, penalty for 
 
 failure 430; A. W. 80 
 
 Of trial judge advocate as to acquittal, etc., of accused 332a 
 Official. (See Privileged communications.) 
 
 Weekly, of trial judge advocate, of uodisposed-of cases 104; 
 
 p. 607 
 
 Reporter : 
 
 Appointment, when authorized 112 ; A. W. 115 
 
 Carbon copy of record, when prepared by 117 
 
 Compensation ; rates prescribed 113 
 
778 INDEX. 
 
 [References are to paragraphs, esrept that the letter "p" Indicates page, 
 "A. W." indicates Articles of War, and " App." Indicates Appendix.] 
 
 Reporter Continued. Par. 
 Compensation, when payable to person in Government serv- 
 ice 113 (b) ; 118 
 
 Court of inquiry ; always appointed on Class B classification 
 
 inquiry 457 
 
 Court of inquiry ; appointment, compensation, enlisted man 
 
 eligible 457 
 
 Detail of soldier as ; compensation 115 
 
 Duties enumerated 112a 
 
 Finding or sentence not communicated to; legality unaf- 
 fected 305 
 
 Oath; form, administration 135 A. W. 19 
 
 Omits nothing at direction of trial judge advocate or coun- 
 sel 112a 
 
 Questions asked witnesses may be oral where there is 111 
 
 Record may be prepared by 355 
 
 Record to show who acted as and oath 357b(12) 
 
 Takes down everything except as directed by court itself 112a 
 
 Voucher for pay of personal services, form App. 25 
 
 Voucher; original to disbursing finance officer, copy for- 
 warded with record 114, 366 (b) 
 
 When employed for special courts-martial 360a 
 
 When seated in court 83 
 
 Who can not receive compensation as 113 
 
 Reprimand : 
 
 As disciplinary punishment, proper 333, A, W. 104 
 
 Legal sentence for officer 310 
 
 Legal sentence for soldier 311 
 
 Usually for officers but may be administered to others 318 
 
 Reproachful or provoking speeches or gestures: 
 
 Analysis and proof of offense 440, A. W. 90 
 
 Definitions and principles 440 
 
 Form for specification App. 6(86) 
 
 Insulting gestures do not constitute assault 443, p. 440 
 
 Reputation : 
 
 Of accused, (See Character evidence.) 
 
 Of witness ; how proved, personal opinion 257 
 
 Res gestre: 
 
 Acts and statements of conspirators and accomplices must 
 
 be part of 224 
 
 Defined; exception to hearsay rule; discussed; examples. 221a(9), 
 
 223 
 
 Reserve officers: 
 
 On active duty 4(a) (notee) 
 
 When eligible for membership on court-martial 9(c) 
 
 Residence, presumption of continuance until change shown 278 
 
 Resignation, quitting post or duties before acceptance 281 
 
INDEX. 779 
 
 [References are to paragraphs, except that the letter **p** indicates page, 
 "A. W." indicates Articles of War, and " App." Indicates Appendix.] 
 
 Restoration to duty : Par. 
 
 Of deserter without trial, as constructive condonation 151 
 
 Release from arrest and; not ground for certain pleas 152 (c), 
 
 A. W. 70 
 
 Restriction to limits: 
 
 As disciplinary punishment ; one week limit 333 ; A. W. 104 
 
 Legal sentence for officers 310 
 
 Legal sentence for soldier 311 
 
 Nature of punishment ; not to conflict with duties 319 
 
 Sentence continuous ; exceptions 401 
 
 Summary court can not impose for over three months 44 ; 
 
 A. W. 14 
 
 Retainers to the camp subject to Articles of War 4<e) ; A. W. 2 
 
 Retaining a deserter : 
 
 Analysis and proof of offense 411 ; A. W. 60 
 
 Definitions and principles 411 
 
 Form for specification App. 6 (25) 
 
 Retired enlisted man : 
 
 Attendance as witness at court-martial 163 
 
 Part of Regular Army 4 (a) (note a) 
 
 Retired officer: 
 
 Attendance as witness at court-martial . 163 
 
 Court-martial duty, when eligible for 9(b) 
 
 On courts of inquiry 453 
 
 Part of Regular Army 4 (a) (note a) 
 
 Return : 
 
 Of record for revision. (See Revision.) 
 To habeas corpus. (See Habeas corpus.) 
 
 Returns, false, or omission to render: 
 
 Analysis and proof of offense 408 ; A. W. 57 
 
 Definitions and principles 408 
 
 False ; must be made " knowingly " 281- 
 
 Forms for specifications App. 6(13-14)- 
 
 Review, errors not substantial disregarded on 376 a ; A. W. 37 
 
 Review of record of trial : 
 
 By board of review. (See Board of review.) 
 
 By Judge Advocate General in conjunction with board of 
 
 review; duties prescribed 399 a ; A. W. 50} 
 
 By Judge Advocate General, reviewing authority's right, or 
 
 duty to seek 370 (note 3) 
 
 By staff judge advocate; prescribed, contents, form 370 
 
 Reviewing authority (see also Appointing authority) : 
 
 Absence of, action by officer commanding for the time be- 
 ing 369; A. W. 46 
 
 Acquittal, no action required on ; not to be approved or dis- 
 approved, but merely promulgated 372 (b) ; A. W. 40 
 
780 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." Indicates Articles of War, and " App." indicates Appendix.] 
 
 Reviewing authority Continued. Par. 
 
 Acts in person ; method of signature r 376 
 
 Adding to sentence by, illegal 385 
 
 Advice from Judge Advocate General, when may and when 
 
 required to seek 370 (note 3) 
 
 Approval, effect of 372 
 
 Approval not required of findings and proceedings 371 
 
 Approval of sentence by 371 
 
 Confinement, change of place of 389 
 
 Confinement, place of, designated by 394 
 
 Cooperation in segregation policy for general prisoners 399 
 
 Court of inquiry, may or may not publish proceedings 472 
 
 Date of action by 401 
 
 Decisions and orders stated at end of record 870 
 
 Defined; successor; distinguished from appointing au- 
 thority 369 
 
 Desertion, disapproval of sentence of conviction, grounds 
 
 to be stated 888 
 
 Designation of date during confinement for dishonorable 
 
 discharge to take effect, illegal 320 
 
 Designation of penitentiary by ; rules applicable 341 
 
 Disapproval, effect of 872 
 
 Disapproval or return for reconsideration forbidden, in cer- 
 tain cases 372 ; A. W. 40 
 
 Disposition of record of trial by 867 
 
 Duty where court-martial improperly imposes sentence on 
 
 several charges for same offense 66 
 
 Effect of remission of sentence at time of approval 383 
 
 Forms for action by App. 15 
 
 Lesser included offense, approval of 377 (a) 
 
 Loss of files, power to approve sentence of, but no power to 
 
 restore files 390 
 
 Medical board on insanity, etc., of accused may be convened 
 
 on own motion by 219(h) (note) 
 
 Modification of sentence before publication 387 
 
 No power to add to sentences 385 
 
 No power to return certain cases with a view to more severe 
 
 punishment 352, 372 ; A. W. 40 
 
 No trial until action of, in what cases 149(3) (c) 
 
 Proper authority to administer a sentence of reprimand 318 
 
 Record of summary court transmitted to 351 (k) 
 
 Record of trial to be forwarded to 366 
 
 Rehearing, duties on 377a 
 
 Revision of investigation by court of inquiry 471 
 
 Special pleas, action on 153 (b) 
 
 Transfer of accused before action by 375 
 
INDEX. 781 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Revision: Par. 
 
 Accused, presence of, at proceedings ln_.IL 352 
 
 By court of inquiry of investigation . 471 
 
 By general or special court-martial, procedure 352 
 
 By summary court-martial, procedure 353 
 
 Cases not returnable for, enumerated 352, 372 ; A. W. 40 
 
 Effect of presence of new member in proceedings in 93 
 
 Form for proceedings 352, 364 ; App. 10 
 
 Reconsideration by court on own motion, when prohib- 
 ited 352, 372 ; A. W. 40 
 
 Record of; rules applicable 357(b) (57) 
 
 Return of records for correction ; how change made 364, 365 
 
 Reward for deserter : 
 
 As affected by disapproval of conviction 388 
 
 As authority to citizen to make arrest ^ 59 
 
 T$o stoppage to collect if desertion charge unsustained 329 
 
 Payment of, not proof of intent 284 
 
 Riot defined 439, p. 404 
 
 Robbery : 
 
 Assault with intent to rob 443, p. 445 ; A. W. 93 
 
 Assaults, certain, included in 377 
 
 Definitions and principles, proof, penalty 443, pp. 413, 422 ; 
 
 A. W. 93 
 
 Drunkenness as defense 285 
 
 Examples of violence or intimidation 443, p. 423 
 
 Form of specification App. 6(99) 
 
 Larceny from person included in , 377 
 
 Larceny included in 443, p. 423 
 
 Limitation of three years 149(2) 
 
 Roll-call of members of court, how taken 84 
 
 Routine duties, absence without leave, punishment for, covers 66 
 
 Rules of evidence. (See Evidence.) 
 
 Running away before the enemy : 
 
 Analysis and proof of offenses 425, pp. 377, 378 
 
 Definitions and principles 425, p. 377 ;*A. W. 75 
 
 Forms for specifications App. 6(50-52) 
 
 Safeguard. (See Forcing a safeguard.) 
 
 St. Elizabeths Hospital, commitment of accused to, when ab- 
 normal 1 76c(2) 
 
 Sale: 
 
 Larceny of same property, when joined 74 (o) 
 
 Of military clothing; corpus delicti established by proving 
 
 articles missing 225(c) 
 
 Of stolen public property, how charged 74 (o) 
 
 Sanitary train, when a detachment for disciplinary purposes 28 
 
 Sanity, presumption of law as to 277 
 
 21358 20 50 
 
782 
 
 [References are to paragraphs, except that the letter M p M indicates pagf, 
 " A. W." indicates Articles of War, and " App." indicates Appendix. ] 
 
 iv r 
 
 Saving clause in repeal of former Articles of War 4S.T 
 
 Scandal to the service, how pleaded 74 
 
 Scientific treatises, admission of 221a(C) 
 
 Seals, judicial notice of great seals ; seals of courts, of notaries 
 
 public : i: :< 
 
 Seating of courts-martial S3 
 
 Second sentence, taking effect of 401 (b) 
 
 Second trial. (See Former jeopardy.) 
 
 Secondary evidence, when admissible 237 
 
 Secrecy : 
 
 As to votes and deliberations of courts of inquiry 470 
 
 As to votes on challenges, findings and sentence of courts- 
 martial 91 ; A. W. 19 
 
 Secretary of War (see also War Department) : 
 
 Alone may order an accused to duty outside jurisdiction of 
 
 reviewing authority 332 (a) 
 
 Assignment of retired officers to active duty with their con- 
 sent 9(b) 
 
 Clemency applications forwarded' for action of ; six months 
 
 interval 402, 404 
 
 Contemptuous or disrespectful words against 413; A. W. 62 
 
 Depositions to be taken in foreign countries, transmis- 
 sion of 182 
 
 Designation of place of confinement, in what cases. 396 ; A. W. 42 
 Execution of suspended sentence in Disciplinary Barracks- 393 
 
 Reenlistment of deserters only with approval of 340 
 
 Regulations as to appointment of interpreters 119 
 
 Regulations as to appointment of reporters 112 
 
 Reports of Judge Advocate General to, divulged only by 
 
 permission of 230 
 
 Retired officers on courts of inquiry, appointment of 453 
 
 Suspension of sentence, power of 392, 393 ; A. W. r>2 
 
 Transmission of cases from board of review and Judge Ad- 
 vocate General to 399 a (b) (c) (d) 
 
 Sedition : 
 
 Analysis and proof of offenses under A. W. 66 417 
 
 Analysis and proof of offenses under A. W. 67 418 
 
 Capital offense at all times 41 ; A. W. 66 
 
 Definitions and principles under A. W. 66, 67 417, 418 
 
 Failure to suppress, capital effense at all times 41 ; A. W. 07 
 
 Five offenses under A. W. 66 : Attempting to create, begin- 
 ning, joining in, exciting, and causing 417 
 
 Forms for specifications under A. W. 66 App. 6(39, 40) 
 
 Forms for specifications under A. W. 67 App. 6(41,42) 
 
 Two offenses under A. W. 67 : Failure to suppress and fail- 
 ure tO give infnrmnHnn 418 
 
INDEX. 783 
 
 [References are to paragraphs, except that the letter "p" indicates pag, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 
 Segregation of prisoners according to offenses 341, 396-399 
 
 Self-crimination (see also Fifth Amendment) : 
 
 Accomplice not called except at own request 217 
 
 Accused can not be required to admit his statement 225 (note 1) 
 
 Accused may uof be called as witness against himself 233 
 
 Cases where privilege ceases enumerated 233 (a) 
 
 Compulsory submission to physical examination is not- 236, 236 (a) 
 Person ordered to appear for identification can not claim 
 
 privilege 236 (a) 
 
 Privilege against applies to courts-martial, and to accused 
 
 and witnesses 233 
 
 Privilege is personal, to be asserted by witness; ignorant 
 
 witness 234 
 
 Procedure on objection to question ; punishment ; comment 
 
 on refusal to answer 235 
 
 Tending to criminate distinguished from tending to degrade- 233 
 Testimony as to scars, tattoo marks, etc., does not violate 
 
 privilege 236 (a) 
 
 Selling military property. (See Military property.) 
 Sentence (see also Punishment) : 
 
 (To a particular punishment or for a particular offense, 
 see the specific title.) 
 
 Action after promulgation of 401 
 
 Action by reviewing authority, forms for App. 15, p. 637 
 
 Adding to, by reviewing or other officer, illegal 385 
 
 Announcement in open court; when, procedure if not an- 
 nounced . 332a 
 
 Application for clemency, effect on 402 
 
 Approval 360-377 ; A. W. 46, 47, 50* 
 
 Approval ; action of board of review and Judge Advocate 
 
 General, when must precede 371 ; A. W. 50$ 
 
 Approval as including power to remand for rehearing 377 (c) ; 
 
 A. W. 47 
 
 Approval by officer commanding for time being 374 ; A. W. 46 
 
 Approval, formal, of findings, not sufficient 373 
 
 Approval; manner, by whom 373 
 
 Approval necessary to validity 33, 33a, 371 
 
 Approval of, forms App. 15, p. 637 
 
 Approval of, in excess of legal limit, effect 386 
 
 Approval of lesser included offense 377(a) ; A. W. 47 
 
 Approval of whole or any part of 377 (b) ; A. W. 47 
 
 Communication to reporter or clerk improper; legality un- 
 affected 305 
 
 Commutation. (See Commutation of sentence.) 
 
 Confinement already served as basis for mitigation 401 
 
784 INDEX. 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Sentence Continued. Par. 
 
 Confirmation, action of board of review and Judge Advocate 
 
 General, when must precede 371 ; A. W. 50$ 
 
 Confirmation, not effective (if confirmation necessary) 
 
 without 371 
 
 Date of beginning is date of announcement in court or when 
 
 sentence was adjudged by court 401 
 
 Death. (See Death sentence.) 
 
 Disapproval; effect as final determination 372 (a) 
 
 Effect of approval or disapproval of 372 
 
 Excess of legal limit, part legal may be approved and exe- 
 cuted 386 
 
 Execution on vacation of order of suspension 392 ; A. W. 52 
 
 For field clerks 310a 
 
 For member of Army Nurse Corps 310a 
 
 For officers 310 
 
 For soldiers 311 
 
 For warrant officers 310a 
 
 Forms for, by courts-martial App. 13, p. 634 
 
 Forms for synopses of App. 7, p. 592 
 
 Increasing on review unlawful 352, 385 ; A. W. 40 
 
 Interrupted by delivery to civil authorities; completion 
 
 of 35; A. W.74 
 
 Life sentence ; three-fourths vote required__ 90a, 295, 308 ; A. W. 43 
 
 Lightest sentence, how determined in voting 308, 308 (note 2) 
 
 Mandatory. (See Death sentence.) 
 Maximum punishment. (See Punishment.) 
 Mitigation. (See Mitigation.) 
 
 Modification of action before publication of 387 
 
 Number of votes necessary ; death sentence, life sentence, 
 
 over 10 years, under 10 years 90a, 295, 308 ; A. W. 43 
 
 Of courts-martial ; approval or confirmation necessary to 
 
 validity 33, 33a 
 
 Of courts-martial; when approved or confirmed, as effective 
 
 as in civil courts 33, 33a 
 
 On rehearing can not be more severe 377a ; A. W. 50i 
 
 On summary court record 363 
 
 Over 10 years; three-fourths yote required- 90a, 295, 308: A. W. 43 
 Penitentiary. (See Penitentiary.) 
 
 Persons under military, subject to court-martial 38 (c) ; A. W. 2 
 
 Powers incident to power to approve 377 
 
 Publication, modification before 387 
 
 Reasons for, may be spread on record 331 
 
 Record must be complete, to sustain 356 
 
 Record to show, and necessary concurrence therein 357 (b) 
 
 (46-51) 
 Remission at time of approval, effect 383 
 
INDEX. 785 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Sentence Continued. 
 
 Revision. (See Revision.) Par. 
 
 Second sentence, when taking effect 401 (b) 
 
 Statement of service to be considered in determining 271 
 
 Ten years or under ; two-thirds vote required 90a, 
 
 295, 308 ; A. W. 43 
 
 Term does not include acquittal 372 (b) 
 
 Voting on. (See Voting.) 
 
 When effective 371, 401 
 
 Sentinel : 
 
 Defined ; does not include " watchman " 436 
 
 Drunk on post ; analysis and proof of offense, penalty 436 ; 
 
 A. W. 86 
 
 Drunk on. post ; form for specification App. 6 (77) 
 
 Leaving post before relief; analysis and proof of offense, 
 
 penalty 436 ; A. W. 86 
 
 Leaving post; form for specification App. 6 (78) 
 
 Leaving post; proof of corpus delicti 225 (c) 
 
 Misbehavior, a capital offense in time of war 41 ; A. W. 86 
 
 Post of, defined 436 
 
 Right and duty over prisoner 442, p. 409 
 
 Sleeping on post ; analysis and proof of offense, penalty 436 ; 
 
 A. W. 86 
 
 Separate brigade, commanding officer may appoint general 
 court-martial 14; A. W. 8 
 
 Service of charges five days before trial by general court-mar- 
 tial SO; A. W. 70 
 
 Service of process. (See Witnesses.) 
 
 Service record: 
 
 Disciplinary punishment not entered on 334 
 
 Entries on, forms for synopses of convictions App. 7 
 
 Entries on, from summary court charge sheet 79 (a) ; App. 5(6) 
 
 Service schools, when detachments for disciplinary purposes 28 
 
 Severance, motion for; nature, grounds, procedure 156 
 
 Shirking important service as desertion under A. W. 28_ 409, 409 (note) 
 
 Shooting as mode of execution ; for what offenses 346 
 
 " Short desertion" (see also Desertion) : 
 
 A. W. 28, a rule of evidence and not a punitive article 74 (n) 
 
 Shorthand, use of, authorized in taking testimony 112 ; A. W. 115 
 
 Sickness as affecting absence without leave 412 
 
 Signature : 
 
 Comparison of handwriting 240 
 
 Of accused to his statement 290 
 
 To charges by person subject to military law 62 ; A. W. 70 
 
 Silence not treated as confession 225 (b) 
 
 Sketches, when admissible as evidence 245 
 
786 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Sleeping on post : Par. 
 
 Analysis and proof of offense 436 ; A. W. 86 
 
 Capital offense in time of war 41 ; A. W. 86 
 
 Definitions and principles 436; A. AY. 80 
 
 Form for specification App. 6(77) 
 
 Intent inferable from act 280 
 
 No statutory intent described in A. W. 86 nor to be alleged. 281 
 Sodomy : 
 
 Analysis and proof, penalty 443, pp. 413, 439 ; A. W. 93 
 
 As punishable by law of District of Columbia 338 (c) 
 
 Assault with intent to commit 443, p. 445 ; A. AY. 93 
 
 Definitions and principles 443, p. 413 
 
 Forms for specifications App. 6 (107) 
 
 Limitation of three years 149(2) 
 
 Soldier (see also Enlisted men) : 
 
 Includes noncommissioned officer, private, or any other en- 
 listed man 4 (notes 1,2) ; A. W.l(b) 
 
 Soldiers' Home, inmates as persons subject to military law; 
 
 constitutionality . 4(f)(note2); A.W.2(f) 
 
 Special court-martial orders: 
 
 Form for App. 16 B, p. 642 
 
 Publication in form similar to those for general courts 400; 
 
 App. 16 
 Special courts-martial (see also Courts-martial and generally 
 
 throughout index) : 
 Advice in open court 
 
 Of defense counsel 107d 
 
 Of trial judge advocate 99 
 
 Appointment : 
 
 Form for order of App. 4, p. 559 
 
 Who may appoint 21; A.W.9 
 
 Cases referred under A. W. 12 
 
 Limits on punishment still continue 41a ; A. W. 12 
 
 Not capital cases within A. W. 25, when referred 263 
 
 Not capital cases within A. W. 27, when referred 272 (note) 
 
 Not dismissal cases within A. W. 27, when referred 
 
 272 (note) 
 
 On investigation by commanding officer 76a( 11,12), 78 
 
 Challenge. (See Challenge.) 
 Charges. (See Charges.) 
 
 Closed sessions ; when required ; when not required 91 
 
 Composition, not less than three officers 7(b) ; A. W. 6 
 
 Conduct of case 
 
 Fveedom in 100, 107e, 291 
 
 Powers of trial judge advocate and court 100 
 
 Decorum, observation of; when standing required 86 
 
INDEX. 787 
 
 [References are to paragraphs, except that the letter "p" indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.! 
 
 Special courts-martial Continued. 
 
 Defense counsel. (See Defense counsel.) 
 Judicial notice, (See Judicial notice.) 
 
 Jurisdiction Par. 
 
 Cases specially referred by convening authority for 
 
 general courts-martial 41a, 76a(ll, 12), 78 ; A. W. 12 
 
 Certain classes of persons excepted by G. O. 71, W. D., 
 
 1920 p. 656 
 
 Failure of record to show, ground for disapproval 146 
 
 Over persons and offenses, enumerated 41 ; A. W. 13 
 
 Procedure on second trial where first trial vacated be- 
 cause of record not showing 146(note2) 
 
 Waiver of objection never confers 146 
 
 Meetings, times and places of 81 
 
 Members 
 
 Absence; duty, noted in record, reason 85 
 
 Absence, procedure upon return after 93 
 
 Accuser or witness for prosecution ineligible 6 (a), 
 
 129 ; A. W. 9 
 As witness for prosecution, for defense or called by 
 
 court 131 
 
 Challenge. (See Challenge.) 
 
 Change, in membership, rank, during trial ; effect 93 
 
 Closed session, right to require 91 ; A. W. 31 
 
 Commanding officer not to appoint self; higher au- 
 thority may appoint him 24 
 
 Duty with command during adjournment 81 
 
 Eligibility 6, 9, 11,129-131 ; A. W. 4, 9 
 
 Informing court as to member being accuser or witness. 129 
 
 .No maximum limitation 7(a)(note2) ; A. W. 6 
 
 Oath; form, administration, when taken 132 (a) 
 
 Oath to test competency ; form 137 
 
 Taking seat after absence; advisability, procedure, 
 
 effect 93 
 
 Uniform 82 
 
 Offenses punishable by 41 ; A. W. 13 
 
 Order of appointment, contents 81 
 
 Order of reference 
 
 Examination for errors 97 
 
 Forwarded by appointing authority 367 (b) 
 
 Organization completed for each case separately 142, 143 
 
 Persons triable by 41 ; A. W. 13 
 
 President- 
 Acts not by appointment but by by seniority 89 
 
 Administers oath to trial judge advocate and assist- 
 
 tants as such or as witnesses 133 
 
 Advice to accused as to pleading limitations 149(3) (h) 
 
788 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page. 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Special courts-martial Continued. 
 
 President Continued. Par. 
 
 Duty to preserve decorum ; admonitions Sft 
 
 Examination of order of reference for trial 97 
 
 Explanation to accused on plea of guilty; record 154 (d) 
 
 Explanation to accused as to right to testify 215 ; App. 9 
 
 Form for use of App. 9, p. GOO 
 
 Informs ignorant witness as to self-crimination 234 
 
 Insanity, etc., of accused raised during trial 219 (b) (f) 
 
 Oaths for administrative purposes 138 (b) ; A. W .114 
 
 Powers and duties enumerated and discussed 89 
 
 Rulings on interlocutory questions 89 ; A. W. ^1 
 
 Summary of testimony made by, in open court 358 (b) 
 
 Procedure identical, where practicable, with general courts- 350 
 
 Publication, similar to general court cases ; forwarding 400 ; 
 
 App. 11, p. 629 
 Punishment (see also Punishment) : 
 
 Limits as to nature, duration, and amounts 42 
 
 Limits of court not changed in cases specially referred- 41a ; 
 
 A. W. 12 
 
 Quorum, addition of members to secure; procedure 7 (a) 
 
 (note 3) 7(b) 
 
 Records. (See Records of courts-martial.) 
 Reporter. (See Reporter.) 
 
 Revision of proceedings 352, 364 ; App. 6 
 
 Rulings, interlocutory questions 89 ; A. W. 31 
 
 Seating- 
 According to rank ; when changed, according to new 
 
 rank 12 (a), S3, 93 
 
 Of trial judge advocate, accused, counsel, reporter ,._ S3 
 
 Sentence. (See Sentence.) 
 
 Trial judge advocate. (See Trial judge advocate.) 
 Trial of officers, limitations upon punishing po\ver_^ 310 ; A. W. 13 
 Voting. (See Voting.) 
 Special orders : 
 
 As source of military law 2{<1) 
 
 Judicial notice of certain kinds .. 289 
 
 Special pleas. (See Pleas.) 
 Specification : 
 
 Aider of defective 
 
 Finding of guilty as covering defective specification.- 158a 
 Objections of accused during trial ; courses open to 
 
 court 15Sa 
 
 Allegations of time and place in 1_ 74 (j,') 
 
 Alternative pleading in, improper 74 (c) 
 
 Defined; requisites 61, 61 (note 1) 
 
 Evidence not to be pleaded in ; explained ; effect 74 ( J) 
 
 Finding guilty on other specifications than named__ . 298, 300 
 
INDEX. 789 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 "A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Specification Continued. Par. 
 
 Forms under punitive articles App. 6 
 
 General prisoner, form for; allegation . 74(j) 
 
 Method of voting on 294 
 
 Names in; Christian, alias 74 (h, i) 
 
 Numbering 72 
 
 Order of pleading 144 
 
 Rank, change of, since offense committed 74 (k) 
 
 Record of general court-martial to contain 357 (b) (18) 
 
 Relation of, to charge . 61, 74(b) 
 
 Signature and affidavit ; contents ; form of oath 75 ; 
 
 A. W. 70 ; App. 5 
 
 Single desertion followed by fraudulent enlistment 74 (n) 
 
 Statement of; utmost care, essentials 74 (b) 
 
 Technical similarity to indictment at law not required 74 (b) 
 
 Two or more inconsistent offenses may be set forth in sep- 
 arate 74 (c) 
 
 Written papers and oral statements, when set forth in 74(1) 
 
 Speeches, reproachful or provoking. (See Reproachful or pro- 
 voking speeches or gestures.) 
 
 Spoil, committing 439 ; A. W. 89 
 
 Spying : 
 
 Analysis and proof of offense 432 ; A. W. 82 
 
 Capital offense in time of war 41 ; A. W. 82 
 
 Conviction of, confirmation by whom required 378 (d) ; A. W. 48 
 
 Death by hanging usual capital penalty 346 
 
 Definitions and principles 432 
 
 Form for specification App. 6(72) 
 
 Voting on mandatory penalty of 308 
 
 Squadron included under word "battalion" 4(note 1) ; A. W. l(d) 
 
 Staff judge advocate : 
 
 Accused furnished copy of report of 77b 
 
 Advice as to proper court for trial 78 
 
 Advice to appointing authorities on appointments to courts- 
 martial 6(c) (note 2) 
 
 Annual report, data for 3G7(b, d) 
 
 Assistant's report or review of record, action on 370 
 
 Consulted on questions raised by trial judge advocate 15Sd 
 
 Duties may be performed by an officer acting as such_ 370 (note 4) 
 General court-martial charges referred to, for consideration 
 
 and advice; procedure in detail 76b 
 
 Medical board's report referred to 76c 
 
 Order of execution withheld, secures data for order_ 399a(note 1) 
 
 Possible recommendations as to charges described 7Gb 
 
 Records of special courts-martial ; receipt, how long held, 
 
 forwarding 367 (b) 
 
 Report appended to record of general court martial 357 (b) (5G) 
 
790 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Staff judge advocate Continued. Far. 
 Report of medical board on insanity, consideration and re- 
 port -- 219 ( d ) 
 
 Report on investigation forwarded by appointing author- 
 ity 367 (a, b) 
 
 Reports of summary courts-martial ; receipt, data, destruc- 
 tion 367 (c) 
 
 Review or report, nature of; additional data 370 (notes 1,2) 
 
 Review, thorough, on whether errors affected substantial 
 
 rights _J 37Ga ; A. W. 37 
 
 Submits order to effect recommendations as to charges 76b 
 
 Summary court records; receipt, data, destruction 79 (a) 
 
 Staff officer : 
 
 Suspension from command not appropriate punishment 316 
 
 Suspension from duty appropriate punishment 316 
 
 Standing in court 86 
 
 State : 
 
 Civil authorities. (See Civil authorities.) 
 
 Courts. (See State courts.) 
 
 Same act as offense against United States and 149(3) (d) 
 
 State courts (see also Civil courts) : 
 
 Attachment of witnesses, no jurisdiction by habeas corpus_169(b) 
 Habeas corpus, can not interfere with Federal custody by_ 477 
 
 Habeas corpus in connection with attachment 169 (b) 
 
 Habeas corpus, return to writ of, issued by 478 ; App. 22 
 
 Removal of civil or criminal suits against military persons 
 
 in certain cases from 484 ; A. W. 117 
 
 Trial by, no bar to second trial by court-martial 274 
 
 Use of decisions as precedents in courts-martial 199 
 
 State laws, judicial notice ._ 289 
 
 State secrets as privileged communications 227 
 
 Statement by accused : 
 
 In special court trial, appended to record 358 (c) 
 
 Inconsistent with plea of guilty, action by court- 154 (e) ; A. W. 21 
 
 On investigation of charges; form, signature, warning 76a(S) 
 
 Right to make; when; forms; disposition; not evidence 290 
 
 Statement concerning family history, exception to hearsay rule ; 
 
 when applicable 221a(3) 
 
 Statement of accused, freedom of expression in making 291 
 
 Statement of fact against interest, exception to hearsay rule; 
 when applicable 221a(2) 
 
 Statement of mental or physical condition, admission as excep- 
 tion to hearsay rule; conditions 221a(8) 
 
 Statement of service : 
 
 Record to show procedure respecting 357(b)(43) 
 
 Shown court after, but never before, findings 206, 271 
 
 Use on conviction ; consideration in determining sentence 271 
 
INDEX. 791 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Par. 
 State's evidence 216 
 
 Station as place of confinement of general prisoner 398 
 
 Statute of limitations : 
 
 Advice to accused as to right to plead, in record 149(3) (h) 
 
 Computation ; excepted periods named and described 149(2) 
 
 For military offenses, enumerated^ 149(2), A. W. 39 
 
 For various offenses 149(1,2), A. W. 39 
 
 Form for explanation to accused App. 9, p. 610 
 
 Homicide; death within a year and a day 442, p. 410 
 
 Law member's advice to accused in record 357 (b) (21) 
 
 Must be pleaded to be of avail 149(3) (g) 
 
 Not applicable to courts of inquiry 451 
 
 Number of trials. (See Former jeopardy.) 
 
 Previous convictions 306 
 
 Privilege against self-crimination as ceasing because of of- 
 fense barred by 233 (a) 
 
 Purpose 149(1), A. W. 39, 40 
 
 Statutes : 
 
 Citation and quotation as authority for penitentiary sen- 
 tence 339 
 
 Judicial notice 289 
 
 Rules of evidence in, as source of authority 198 
 
 Statutes (United States) : 
 
 As guide for penitentiary sentence and duration of same. 40, 
 
 338, A. W. 42, 45 
 
 As source of military law 2(d) 
 
 Citation as authority for penitentiary sentence 339 
 
 Statutory rape. (See Carnal knowledge of female under 16; 
 Rape.) 
 
 Stoppage of pay : 
 
 An administrative matter ; court-martial without power 325 
 
 As affected by disapproval of conviction of desertion 388 
 
 For injuries to property under A. W. 105 481 
 
 Reward if desertion charged not sustained can not be col- 
 lected by ' 329 
 
 Strategy, questions of, rulings in courts-martial, by whom 89, 89a 
 
 Subpo2iia. (See Witnesses.) 
 
 Substantial rights, disregard of, errors not affecting 376a, A. W. 37 
 
 Substitution of general for specific article 300 
 
 Substitutions, guilty, with 299 
 
 Suffering a prisoner to escape : 
 Through design 
 
 Analysis and proof of offense 423, A. W. 73 
 
 Definitions and principles 423 
 
 Forms for specifications App. 6(47) 
 
792 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Suffering a prisoner to escape Continued. 
 
 Through neglect Par. 
 
 Analysis and proof of offense 423, A. W. 73 
 
 Definitions and principles 423 
 
 Forms for specifications App. 6(47) 
 
 Suffering military property to be lost, etc. : 
 
 Analysis and proof of offense 433, A. W. 83 
 
 Forms for specifications App. 6(72) 
 
 Principles and definitions 433 
 
 Suggestions : 
 
 By commanding officer as to membership, etc., of general 
 
 court-martial 7a 
 
 For law member ; forms for use at trial App. 9, p. 609 
 
 For president of court-martial ; forms for use at trial App. 9, 
 
 p. 609 
 
 For trial judge advocate App. 8, p. 602 
 
 Of common errors in records to be avoided App. 27, p. 679 
 
 Summary courts-martial (see also Courts-martial and generally 
 throughout index) : 
 
 Acquittal immediately announced and recorded 351 (i) 
 
 Appointing authorities enumerated 25, A. W. 10 
 
 Appointment by brigade commanders, discussed 29 
 
 Appointment by detached commanders, discussed 28 
 
 Attachment of witnesses 168,169 
 
 Attendance of witnesses 159(note2) ; 351(e) ; A. AV. 22 
 
 Cases specially referred by commanding officer 76 a (5, 11) 
 
 Challenge not allowed 120 
 
 Composition ; one officer 7(c) ; A. W. 7 
 
 Effects of deceased persons ; duties prescribed 482 ; A. W. 112 
 
 Explanation to accused of right to testify or make state- 
 ment 215 
 
 Findings at conclusion of trial; recorded on charges 351 (f) 
 
 Inquests, duties respecting 483 ; A. W. 113 
 
 Judicial notice 289 
 
 Jurisdiction over certain classes of persons excepted by 
 
 G. O. 71, W. D., 1920 p. 656 
 
 Jurisdiction over persons and offenses, enumerated 43 ; A. W. 14 
 
 Oaths for administrative purposes 138(b) ; A. W. 114 
 
 Only officer present; no order of appointment necessary, 
 
 procedure 27 ; A. W. 10 
 
 Previous convictfons, consideration of, on conviction 351 (g) 
 
 Previous convictions; use, return 306 
 
 Procedure described in detail 351 
 
 Procedure identical, where practicable, with general courts 
 
 351 (c) 
 
 Punishments, limits of 44; A. W. 14 
 
 Records. (See Records of courts-martial.) 
 
INDEX. 793 
 
 [References are to paragraphs, except that the letter " p " Indicates page, 
 " A. W." indicates Articles of War, and " App." Indicates Appendix.] 
 
 Summary courts-martial Continued. 
 
 Report of trial Par. 
 
 Form, contents 351 ; App. & 
 
 Forwarding, destruction 367 (d) 
 
 Reprimand, may impose as a punishment 318 
 
 Revision of proceedings 353,365 
 
 Sentence imposed and recorded when trial concluded 351 (h) 
 
 Sessions, stated time daily; when on Sundays 351 (a) 
 
 Superior authority may appoint when desirable 25 ; A. W. 10 
 
 When more than one officer present with command 26 
 
 When only officer with command is accuser or wit- 
 ness 6, 6(a) ; A. W. 10 
 
 Summary of evidence : 
 
 Appended to record of trial by general court-martial- 357 (b) (56) 
 
 Forwarded by appointing authority 367(a, b) 
 
 In preliminary investigation, not admissible on trial- 237a (note 2) 
 
 Incorporated in special court-martial record 358 (b) 
 
 On challenges in record^ 125 
 
 On investigation of charges 76a(8) 
 
 Special court case ; member as accuser 130 
 
 Sunday, when summary court-martial held on 351 (a) 
 
 Superior officer: 
 
 Assaulting or willfully disobeying 415 ; A. W. 64 
 
 Disrespect toward 414 ; A. W. 63 
 
 Forms under A. W. 63, 64 App. 6(30-34) 
 
 Surgical operation, refusal to submit, specification 68 ; App. 6 ( 167 ) 
 
 Surrender, compelling or attempting to compel : 
 
 Analysis and proof 426 ; A. W. 76 
 
 Capital offense 41 ; A. W. 76 
 
 Definitions and principles 426 
 
 Forms for specifications App. 6(59) 
 
 Suspension from command: 
 
 Effect; not appropriate punishment for staff officer 315 
 
 Included in suspension from rank 314 
 
 Suspension from duty : effect ; appropriate punishment for staff 
 officer 316 
 
 Suspension from rank: 
 
 Includes suspension from command 314 
 
 Officer, legal sentence for 310 
 
 Officer not to sit as court-martial member during 9 (a) 
 
 Officer; report to The Adjutant General 310 (note) 
 
 Suspension of sentence: 
 
 Disciplinary Barracks ; remission of suspended sentences 392, 
 
 393 ; A. W. 52 
 
 Of dishonorable discharge may be recommended by court- 
 martial 321 
 
794 INDEX. 
 
 [References are to paragraphs, except that the letter " p " Indicates pajre. 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Suspension of sentence Continued. Par 
 
 Power, in general ; who may exercise, restoration to duty_ 392 ; 
 
 A. W. 52 
 
 Principle involved 393 
 
 Suspended sentence of dishonorable discharge, remission of, 
 
 a matter of clemency 403 
 
 Until pleasure of President be known 391 ; A. W. 51 
 
 Suspension of cadet, confirmation of sentence of 378 (c) ; A. W. 48 
 
 Synopses of convictions, forms for App. 7, p. 592 
 
 Tables : 
 
 Contents of Manual xxiii 
 
 Corresponding sections of Codes of 1874 and 1916 App. 1, p. 491 
 
 Equivalent punishments 349 
 
 Maximum punishments (Executive order) 349 
 
 Relative severity of punishments 343 
 
 Tactics, questions of; rulings in courts-martial, by whom 89, 89a 
 
 Tattooing as punishment prohibited 344 ; A. W. 41 
 
 Telegrams (see also Documentary evidence) : 
 
 Method of authenticating 239 
 
 Not privileged; subject to usual process 229 
 
 Presumption as to receipt after delivery for transmission 278 
 
 Temporary officer : 
 
 No distinction from other officers in court-martial duty 11 
 
 When eligible as member of court-martial 9(c) 
 
 When subject to laws and regulations for Regular Army 4 (a) 
 
 (notesb-e) 
 
 Territorial department. (See Military department.) 
 
 Territorial division, copies of records authenticated as official 
 as evidence 238 
 
 Territorial jurisdiction, military jurisdiction is not 37 
 
 The Adjutant General, reports to : 
 
 Clemency applications in Disciplinary Barracks and peni- 
 tentiary cases 402 
 
 Copy of special court-martial order 400 
 
 Copy of summary court record 79 (a) 
 
 Court-martial sentence involving change in officer's status, 
 
 by telegraph 310 (note) 
 
 Data from special court records in reports of changes 307 (b) 
 
 Depositions to be taken in foreign country, when for- 
 warded 182 
 
 Discharge of accused for mental defect so relatives may be 
 
 notified 7Gc (note) 
 
 Habeas corpus in attachment proceedings, by telegraph 169 (a) 
 
 Habeas corpus out of Federal court, by telegraph 479 
 
 Law member of field rank not available 12 (c) 
 
 Officers in arrest not recommended for trial, with papers 50 
 
 Offenders against civil laws not recommended for trial, with 
 charges 35 
 
INDEX. 795 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Testimonial evidence: Pas. 
 
 Denned 202, 207 
 
 When hearsay 207 
 
 Testimony, false. (See False swearing; Perjury.) 
 Threatening, etc., on order into arrest or confinement : 
 
 Analysis and proof of offense 419 ; A. W. 68 
 
 Definitions and principles 419 
 
 Form for specification App. 6(42) 
 
 Threatening or insulting language to warrant or noncommis- 
 sioned officer: 
 
 Analysis and proof of offense 416 ; A. W. 65 
 
 Definitions and principles 416 
 
 Form for specification App. 6(37) 
 
 Time: 
 
 Allegations of, in specifications discussed; examples 74 (g) 
 
 For holding sessions of court-martial, how determined 81 
 
 Judicial notice of divisions of 289 
 
 Periods of 24 hours equal one day, for absence without 
 
 leave 412 
 
 Power of court-martial to correct averment of 299 
 
 Records of trial, when to be completed 116 
 
 Time lost, court-martial while making good, legal 38 (e) (note) 
 
 Trains, when detachments for disciplinary purposes 28 
 
 Transfer of accused to another jurisdiction 375 
 
 Transitory provision, prior offenses subject to previous laws 487 
 
 Travel allowance of witnesses. (See Witnesses.) 
 Treason : 
 
 Communicating with the enemy as war treason 431 
 
 Number of witnesses to sustain conviction of 248 
 
 Treaties, judicial notice of 289 
 
 Treatises, admission as exception to hearsay rule 221a(6) 
 
 Trespass defined 443, p. 424 
 
 Trial (see also more specific titles throughout the index) : 
 
 Counsel for both sides to have freedom of expression at 100, 291 
 
 Excuse of certain officers for preparation for 109a 
 
 Reopening to receive further testimony after close of case_ 249 
 Witnesses. (See Witnesses.) 
 Trial judge advocate: 
 
 Accused as witness failing to explain incriminating facts, 
 
 can comment on __ 214 (c) 
 
 Accused not taking stand, can not comment on 214 (c) 
 
 Accuser or prosecutor, relief when 102 
 
 Advises court only in open sessions in presence of accused 
 
 and counsel 101 
 
 Aid in providing authentic sources for judicial notice 289 
 
 Analysis of evidence by ; discussed 196 
 
796 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page. 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Trial judge advocate Continued. par. 
 
 Appointment for each general or special court-martial. 30 ; A. W. 11 
 
 Arguments to court; opens and closes 293 
 
 Arrest by court or president, not subject to SO 
 
 Arrest of officers or soldiers, no power to place in 47 (b) 
 
 Asks preliminary question as to identity of accused 250 ; 
 
 p. 605 (22) 
 Assistant. (See Assistant trial judge advocate.) 
 
 Attendance of civilian witnesses, how secured by 164 
 
 Attendance of military witnesses, how secured by 163 
 
 Authentication of general court-martial records; absence, 
 
 etc 354,357(b)(54); A. W. 33 
 
 Challenge, not subject to 120 
 
 Challenges for the prosecution ; procedure 120 
 
 Charge and accompanying documents; receipt, disposition 
 
 of original and copies 79 (b) 
 
 Clerks or orderlies for 105 
 
 Closed sessions, not present at ; effect if present 101 
 
 Commanding officer to make recommendations as to chang- 
 ing, etc 7 (a) 
 
 Communication of finding or sentence to reporter or clerk 
 
 improper 305 
 
 Convening authority consults staff judge advocate on ques- 
 tions raised by 158d 
 
 Depositions, duties as to obtaining 177 
 
 Depositions, permits accused or counsel to examine before 
 
 trial 266 
 
 Depositions ; when read to court by, limit on use 238, 267 
 
 Disposition of records of trial, manner 366 (a) 
 
 Duty toward accused, in general 96 
 
 Essential jurisdictional facts, imperative duty to estab- 
 lish 146(note 1) 
 
 Examination of charges; what errors he may correct 97 
 
 Examination of order of reference for trial incumbent on 97 
 
 Expedites trials 103 
 
 Expert, duties relating to employment of 192 
 
 Freedom in conducting case 100 
 
 General duties enumerated 95 
 
 Informing court as to member being accuser or witness 129 
 
 Insanity, etc., of accused raised at trial, duties 219 
 
 Investigation of charges, when permitted to act in hearing 
 
 on 76a (3) 
 
 Legal adviser of court; when to give opinion 99 
 
 Not challengable, relief in certain cases 102 
 
 Notification of commanding officer as to result of trial 332a 
 
 Oath administered to members by 132 (a) 
 
INDEX. 797 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Trial judge advocate Continued. Par. 
 
 Oath administered to witnesses by 134 (a) 
 
 Oath of; form, administration, when taken 133 
 
 Oaths for administrative purposes may be administered 
 
 by i 138 (b); A. W. 114 
 
 Opening statement; improprieties 197 
 
 Plea in abatement, duties on 147 
 
 Plea of guilty, requesting explanation of 99 
 
 Powers of notary public or consul in foreign places where 
 
 Army serving 138(b) ; A. W. 114 
 
 Preparation for trial ; excuse from other duties 109a 
 
 Presence or absence at opening and after recess, in record. 357 (b) 
 
 (37,38) 
 
 Process to obtain witnesses, rights and duties 159 
 
 Quorum of general court-martial, duties respecting obtain- 
 ing 7 ( a ) 
 
 Quorum of special court-martial, duties respecting obtain- 
 ing ,*_ 7(b) 
 
 Reading of paragraphs of Manual describing offense 357 (b) (24) 
 
 Record of court-martial prepared by ; consults defense coun- 
 sel , 355 
 
 Record to note name, presence, etc 357 (b) (7-9) 
 
 Rehearing; detail preferable of same 377a(note2) 
 
 Rehearing, duties as to record, etc., on . 377a 
 
 Revision proceedings; presence at, duties 352 
 
 Roll call or notation for record, each session 84 
 
 Selection, qualifications j 94 
 
 Service of charges, etc., on accused 77b ; A. W. 70 
 
 Subpoena, return to, after service 160, 164 
 
 Subpoena to appear before, improper 160 
 
 Subpoenas duces tecum 166 
 
 Subscribing each day's proceedings, shown in record 357b(53) 
 
 Suggestions for App. 8, p. 602 
 
 Summoning of witnesses ; duties, satisfied of necessity 161 
 
 Taking of oath noted in record 357 (b) (17) 
 
 Term as including assistants 107 
 
 Weekly reports of general court cases ; contents 104 ; p. 607 
 
 Where seated in court 83 
 
 Whole truth to be presented by 98 
 
 Witness's refusal to answer proper question may be com- 
 mented on 235 
 
 Witness's privilege against self-crimination can not be as- 
 serted by 234 
 
 Trial defined 149(3) (c) 
 
 Troop included under word " company " 4(note 1) ; A. W. l(c) 
 
 Twice in jeopardy. (See Former jeopardy.) 
 21358 20 51 
 
798 
 
 [References are to paragraphs, except that the letter " p " Indicates page, 
 " A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Par. 
 
 Typewriter, certificate as to use 357 (b) (54) ; 858 (g) 
 
 Unclassified offenses triable under general article 446 ; A, W. 96 
 
 Uniform for members and others at courts-martial 82 
 
 United States Soldiers' Home, A. W. 112, as to disposal of de- 
 cedent's effects, applicable, when 482 ; A, W. 112 
 
 United States : 
 
 Courts. (See Civil courts.) 
 Property of. (See Military property; Property.) 
 United States Disciplinary Barracks. (See Disciplinary bar- 
 racks. ) 
 
 Unlawful cohabitation, wife may testify against husband ac- 
 cused of 228 
 
 Unnecessary delay: 
 
 Carrying case to conclusion ; analysis and proof of offense 420i ; 
 
 A. W. 70 
 
 Carrying case to conclusion ; definitions and principles 420* 
 
 Form for specification App. 6(45) 
 
 Investigating charges ; analysis and proof of offense 420$ ; 
 
 A. W. 70 
 
 Investigating charges; definitions and principles 420* 
 
 Utah, fees and mileage of civilian witnesses in 185 
 
 Uttering forged writings. (See Forgery.) 
 Variance: 
 
 Between pleadings and findings as to date and place 74(8) 
 
 Courses open to court on discovery of 158b 
 
 Danger. of, by pleading evidence 74(d) 
 
 Of proof, from specifications as to elate and place, when 
 
 allowed 74(8) 
 
 Venue, rules of, not applicable in military courts 87 
 
 Vice President of United States, disrespect toward 413 ; A. W. 62 
 
 Victuals. (See Provisions for camp, post, etc.) 
 
 Viewing premises, rulings on, by whom 89, 89a 
 
 Violence (see also Assault) : 
 
 Assaulting superior officer 415 ; A. W. 64 
 
 To persons bringing In provisions 438 ; A. W. 88 
 
 Toward officer, warrant or noncommissioned officer ordering* 
 
 into arrest or confinement 419; A. W. 86 
 
 Voluntary confession, proof required to establish 225 (b) 
 
 Volunteers : 
 
 Laws, regulations, and orders applicable to 4 (a) (noteb) 
 
 Subject, from muster or acceptance, to Articles of War 4 (a) ; 
 
 A.W.2(a) 
 
 When eligible for membership in court-martial 9(c) 
 
 Toting : 
 
 Challenges 
 
 Secret written ballot 90 (b); A. W. 81 
 
 Tie vote a vote In negative 90 (b) ; A. W.31 
 
INDEX. 799 
 
 [References are to paragraphs, except that the letter " p " Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Voting Continued. Par. 
 
 Closed sessions on challenge, findings, or sentence 91 ; A. W. 19 
 
 Findings 
 
 Ballots destroyed after announcement or verification. 294 
 
 Method, in general, prescribed by A. W. 31 90 (b) ; 294 
 
 Method to be followed by each member 294 
 
 New ballot when votes not equal to number of members- 294 
 
 Procedure to secure requisite number of votes 294 
 
 Record to show use of secret written ballot 90 (b), 
 
 357 (b) (41) ; A. W. 31 
 
 Interlocutory questions, method of voting on 90 (a) 
 
 Interlocutory questions when law member rules 89a ; A. W. 31 
 
 Interlocutory questions when president of court rules 89a ; 
 
 A. W. 31 
 
 On mental condition of accused, procedure 219 (g) 
 
 Order of, by courts-martial 90, 308 ; A. W. 31 
 
 Refusal to vote as offense under A. W. 96 90a 
 
 Sentence 
 
 Ballots destroyed after announcement or verification 808 
 
 Fractional part of necessary vote must be represented 
 
 by one vote 1 308 ( note 1) 
 
 Lightest sentence first considered ; how determined 308, 
 
 308 (note 2) 
 
 Method, in general, prescribed by A. W. 31 90, 308 
 
 Procedure to secure legal adoption of 308 
 
 Votes necessary for sentence of death, life imprison- 
 ment, 10 years, less than 10 years 90a, 308 
 
 Tie vote, effect of 90 
 
 Vouchers : 
 
 Forms for App. 23-25 
 
 Reporter. (See Reporter.) 
 Witnesses. (See Witnesses.) 
 Waiver : 
 
 By plea to general issue, of possible plea in abatement 147 
 
 Jurisdiction can not be conferred by 146 
 
 War: 
 
 Capital crimes and offenses under Articles of War in time 
 
 of, enumerated 41(2) 
 
 Captured property. (See Property.) 
 
 Delivery of offenders to civil authorities not required in 
 
 time of 85 ; A. W. 74 
 
 Judicial notice of condition of 289 
 
 Law of, concurrent jurisdiction of offenses against, of gen- 
 eral courts-martial and military commissions and provost 
 courts 3 (note 1) ; A. W. 15 
 
800 INDEX. 
 
 [References are to paragraphs, except that the letter M p ** indicates page, 
 " A. W." indicates Articles of War, and " App." Indicates Appendix.] 
 
 War Continued. 
 
 Law of; correspondence with enemy, status of citizens of Par. 
 
 neutrals, war treason 431 
 
 Law of; jurisdiction of general court to try under 39 
 
 Law of, trial by general court-martial of persons subject 
 
 to 18 (b) ; A.W. 12 
 
 Law of, trial by military commissions and provost courts of 
 
 persons subject to 8 (a) 
 
 War Department (see also Secretary of War) : 
 
 Decisions as source of military law 2(d) 
 
 Instructions as to penitentiaries for confinement 341 
 
 Policy as respecting disciplinary punishment 836a 
 
 Policy as to detention of pay in whole or in part 328 
 
 Policy as to hard labor without confinement 823 
 
 Policy regarding punishments for desertion ; 340 
 
 Policy regarding segregation of prisoners 341 
 
 Public records of, use as evidence of authenticated official 
 
 copy of 238 
 
 Report by commanding general on wrongs complained of, 
 
 to 485 ; A. W. 117 
 
 Report to, concerning effects of deceased persons. 482 ; A. W. 112 
 War risk insurance premiums, pay of soldier allotted for, may 
 
 not be detained or forfeited 311 
 
 Warrant of attachment (See Attachment of witness.) 
 Warrant officers: 
 
 Arrest, status when in 53 
 
 A. W. 55, 56, 67 and 75 not applicable to ; A. W. 96 proper 
 
 for such offenses 406, 407, 418, 425 
 
 Compensation as reporter of court-martial, etc., not 
 
 allowed 118 (f) 
 
 Excepted from Jurisdiction of special and summary courts- 
 martial by G. O. 71, W. D., 1920 p. 656 
 
 False muster, etc. ; A. W. 56 not applicable to 407 
 
 Misbehavior, etc., before enemy; A. W. 75 not applicable 
 
 to 425, p. 380 
 
 Mutiny or sedition, not suppressing, etc.; under A. W. 96 
 
 and not A. W. 67 418(note) 
 
 Offenses against in execution of office ; penalty 416 ; A. W. 65 
 
 Officers but not commissioned officers; use of term 4 (note 2) 
 
 Power to quell frays, disorders, etc. ; penalty 419 ; A. W. 68 
 
 Previous convictions; 8 year limitation 306 
 
 Sentences legal for, enumerated 310a 
 
 Subject to Articles of War 4 (note 2) 
 
 Summary court-martial, not subject to 43 ; A. W. 14 
 
 Unlawful enlistment, etc., by, A. W. 55 not applicable to, 
 
 A. W. 96 proper 406 
 
INDEX. 801 
 
 [References are to paragraphs, except that the letter " p " indicates page; 
 " A. W." indicates Articles of War, and "App." indicates Appendix.] 
 
 Par. 
 
 Washington (State), fees and mileage of civilian witnesses in 185 
 
 Waste by persons subject to military law 439 ; A. W. 89 
 
 Watchword, disclosure of 427 ; A. W. 77 
 
 Weapon, dangerous, defined 443, p. 447 
 
 Weekly, reports of general court-martial cases 104, p. 607 
 
 Western States, fees and mileage of civilian witnesses in 
 
 certain 185 ( a ) 
 
 Whole truth to be presented 98, 107c 
 
 Wife. (See Husband and wife.) 
 
 Willful defined 405 
 
 Willful disobedience defined 415, p. 355 
 
 Willful injury defined^ 434 
 
 Willfully destroying property. (See Property.) 
 
 Withholding of privileges as disciplinary punishment ; one week 
 
 limit 333 ; A. W. 104 
 
 Witnesses. (See also Evidence) : 
 
 Absent; agreement as to testimony, effect 159 (note 3) 
 
 Accused for self. (See Accused.) 
 
 Accused must be confronted with, when 165 ; A. W. 25 
 
 Accused furnished copy of summary of testimony 77b 
 
 Advance notice given 162 
 
 Attachment 
 
 Form for warrant App. 20, p. 655 
 
 Habeas corpus on. (See Habeas corpus.) 
 Warrant to secure attendance; procedure, accompany- 
 ing papers 159, 168, A. W. 22 
 
 Attendance of military, how secured 163 
 
 Bias or interest as affecting competency or credibility 213 
 
 Challenge. (See Challenge.) 
 Civilian 
 
 Attendance, how secured; orders, mileage, fees 164 
 
 Books, papers, etc., of, how secured 166 
 
 In confinement ; obtaining testimony of 167 ; A. W. 25 
 
 In Government employ ; fees and mileage, form of 
 
 voucher 184 ; App. 24, p. 670 
 
 In Government employ, transportation in kind, etc 184 
 
 In several trials on same day 188 
 
 Incriminating questions of, procedure 235 
 
 Not in Government employ; fees and mileage, form 
 
 of voucher 185, 186 ; App. 23, p. 667 
 
 Subpoena, service and form 160 ; App. 19, p. 651 
 
 Competency 
 
 Conviction of any offense no disqualification, but matter 
 of weight 1 211 
 
802 INDEX. 
 
 [fieferencea are to paragraphs, except that the letter " p " indicates page, 
 " A. W." indicates Articles of War, and " App." Indicates Appendix.] 
 
 Witnesses Continued. 
 
 Competency Continued. 
 
 Depositions; same rules applicable, leading ques- Po- 
 tions 265,268; (note) 
 
 Determination, in general 207,208 
 
 Elements * 209 
 
 Husband and wife, testimony against each other 228 
 
 Issue during trial settled by preponderance of evidence. 296 
 Mental incapacity a disqualification to limited extent; 
 
 examples 212 
 
 Moral incapacity not recognized as disqualification 211 
 
 Of accomplice 217 
 
 Of adult always presumed , 210 
 
 Of child, not by age but by sense and understanding. 210 (a) 
 
 Of child, not governed by common-law rule 210 (a) 
 
 Rank without effect on 200 
 
 Rulings on, by whom 89, 89a 
 
 When objection made; later appearing incompetency_ 247 
 
 Confrontation; right in capital cases; in others cases 165; 
 
 A.W.25 
 
 Contempts 
 
 Authority to punish 173 (a) 
 
 Courts of inquiry 460 
 
 Direct and constructive 173 (c) 
 
 Persons who may be punished for 173(b) 
 
 Procedure for punishment of 173 (d) 
 
 Contradiction 
 
 Cross-examination as to former statement or re- 
 port 237a(note) 
 
 Inconsistent statements; how shown, limitations 260 
 
 Leading question to* effect contradiction of another 
 
 witness 254 (c) 
 
 Rule; collateral issues excepted 259 
 
 Contradicting statements made in other trials, how shown 
 
 262 (note) 
 
 Corroboration of single, offenses requiring 224, 225, 248 
 
 Court may ask questions of, call or recall, etc 100 
 
 Courts of inquiry 
 
 Examination, cross-examination, incriminating ques- 
 tions 467 ; A. W. 24, 101 
 
 Power to summon and examine 458 ; A. W. 101 
 
 Refusal to appear or testify 459 ; A. W. 23 
 
 Credibility 
 
 (See also above, this title Contradiction.) 
 
 Accused as witness subject 'to ordinary rules 262 
 
INDEX. 803 
 
 f References are to paragraphs, except that the letter * p " indicates page, 
 " A. W." Indicates Articles of War, and " App." Indicates Appendix.] 
 
 Wi tnesses Continued. 
 
 Credibility Continued. 
 
 Contradiction by other witnesses as affecting ; collateral Par - 
 
 issues L 259 
 
 Conviction of any offense merely affects 211 
 
 Conviction of crime ; question permissible, procedure If 
 
 denied 258 
 
 Defined ; weight given ; rejection of testimony 256 
 
 Impeachment of own witness not permitted ; exceptions. 262$ 
 
 Inconsistent statements; how shown, limitations 260 
 
 Prejudice, bias, relationship, etc., may be shown ; never 
 
 collateral 261 
 
 Proof of character by general reputation 257 
 
 Cross-examination 
 
 How limited; purposes, proper subjects 251 
 
 Leading questions may be asked 254 (c) 
 
 Of accused as witness, scope 214 
 
 On new matter brought out by court of own or ad- 
 verse witness 253a 
 
 Questions as to former statements or reports. 237 (a) (note 1) 
 
 Recalled witness subject to 249 
 
 Record of general court to show opportunity for, to 
 
 accused 357 (b) (80) 
 
 Statement of accused not subject to 290 
 
 Witness deposing for defense in capital case subject to_ 264 
 
 Direct examination 250 
 
 Examination apart as usual rule ; effect of nonobservance 246 
 
 Examination by court 
 
 Court or a member may ask questions 253 
 
 Subject to rules of evidence ; care requisite 253a 
 
 Expert 
 
 Capacity to testify as, discussed 218 
 
 Employment of 192 
 
 Rulings on calling or recalling 89 ; 89a 
 
 Fees 
 
 Civilians in Government employ 184 
 
 Civilians not in Government employ 185, 186 
 
 Civilians, not reduced by voluntary attendance 164 
 
 For one day, when paid 172 
 
 Officer serving subpuena may pay and be reimbursed 170 
 
 (note) 
 
 Officers and soldiers 163, 183 
 
 On interrogatories 177 (c) 
 
 Payment prior to prosecution for refusal to appear, etc_ 170, 
 
 172 ; A. W. 23 
 Several trials on same day 188 
 
804 INDEX. 
 
 [References are to paragraphs, except that the letter " p " indicates page, 
 *' A. W." Indicates Articles of War, and "App." indicates Appendix.] 
 
 Wi tnesses Continued. 
 
 For accused Par. 
 
 Members of courts-martial as 131 (b) 
 
 Summoned by trial judge advocate 161 
 
 For prosecution 
 
 Eligible as summary court if only officer present 6 (a) ; 
 
 A. W. 10 
 
 Ineligible as members of general or special court-mar- 
 tial 6 (a), 129; A. W. 8,9 
 
 Member ineligible making fact known, excuse. 129 ; A. W. 8, 9 
 
 Former trial, use of testimony at 275 
 
 Habeas corpus. (See Habeas corpus.) 
 
 Hostile, leading questions may be asked of 254 (c) 
 
 Impeachment. (See above, this title, Credibility.) 
 
 Inquests 488 ; A, W. 113 
 
 Interest, bias, etc., not disqualification but affects weight 213 
 
 Interviews with, by defense and other counsel 109, 110 
 
 Investigation of frauds, etc., administration of oaths 138 (a) 
 
 Leading questions, grounds for 254 
 
 List for both sides, forwarded with charges 75 
 
 Listed on charge sheets App. 5(4) 
 
 Materiality of testimony should be known in advance r _ 161 
 
 Mileage 
 
 For one day, when paid 172 
 
 Of civilian furnished transportation by Government 185 
 
 (note 3) 
 
 Of civilian witness not reduced by voluntary attend- 
 ance 164 
 
 Of military witness 163 
 
 Officer serving subpoena may pay and be reimbursed 
 
 170 (note) 
 
 On interrogatories 177 (c) 
 
 Payment prior to prosecution for refusal to appear, 
 
 etc 170, 172 ; A. W. 23 
 
 Military- 
 Attendance, how secured, orders, mileage, fees 163 
 
 Interrogatories, appearance to answer ;_ 177 (c) 
 
 When entitled to mileage 163 
 
 Number 
 
 Coconspirator or accomplice, second witness not re- 
 quired 224 
 
 Single witness sufficient except in treason and perjury ; 
 
 exception 248 
 
 Oath. (See Oath.) 
 
 On investigation of charges; oath, examination 76a(3, 8) 
 
 On rehearing 377a 
 
INDEX. 805 
 
 [References are to paragraphs, except that the letter " p " Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Witnesses Continued. Par. 
 
 Order of examination, usual ; exceptions and changes 249 
 
 Order of introduction, rulings on 89. 80a 
 
 Philippine Islands, before general courts-martial I 171 
 
 Process to obtain 
 
 Authority of trial Judge advocate, attachment.. 159 ; A .W. 22 
 For accused ; manner, propriety of attachment 159 
 
 Protection by court from improper questions 201 
 
 Questions and answers recorded in general court-martial 857 (b) 
 
 (29) 
 
 Rank of, without effect on rules of evidence 200 
 
 Recalcitrant 
 
 Attachment 168 
 
 Punishment by Federal courts -. 170; A. W. 23 
 
 Report for Department of Justice on 172 ; A. W. 23 
 
 Tender of fees preliminary to prosecution 170, 172 ; A. W. 23 
 
 Recall- 
 Not resworn on but reminded of previous oath; effect 
 
 of failure 255 
 
 Permitted at any stage of proceedings 249 
 
 Warning as to oath noted in record 357 (b) (27) 
 
 Recross-examination, how limited; relaxation of rule 252 
 
 Redirect examination, how limited ; relaxation of rule 252 
 
 Reputation 
 
 Proof of bad, not permitted, in impeaching own wit- 
 ness 262} 
 
 Proof of character by ; method, personal opinion 257 
 
 Rulings upon interlocutory questions by law member 89a ; 
 
 A. W. 31 
 
 Rulings upon interlocutory questions by president of court 89 ; 
 
 A. W. 31 
 
 Subpo?na 
 
 Form of App. 19, p. 651 
 
 Fees for service, how determined 191 
 
 Personal service ; by whom, how, proof, return 160, 164 
 
 Service by military person, where practicable 191 
 
 To appear before trial judge advocate, improper 160 
 
 Summoning of, how done 161 
 
 Tender of fees, preliminary to prosecution 170, 172 
 
 Trial judge advocate or assistants as; oath 134 (b) 
 
 Vouchers 
 
 Civilian witness, contents 187 
 
 Delivery to witness . 181 
 
 Forms App. 23. 24 
 
 Lost- 190 
 
 Warrant of attachment. (See above, this title, Attachment) 
 
806 INDEX. 
 
 [References are to paragraphs, except that the letter " p " Indicates page, 
 " A. W." indicates Articles of War, and " App." indicates Appendix.] 
 
 Words and phrases. (See Definitions.) Par. 
 
 Words not an assault-! 433, p. 440 
 
 Writings. (See Documentary evidence.) 
 
 Written instruments, how pleaded _^ 74(1) 
 
 Wrongs suffered by officers and soldiers, redress of 485 ; A. W. 121 
 
 Wyoming, fees and mileage of civilian witnesses in 185 
 
 O