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 LIBRARY 
 
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 University of California. 
 
 GIFT OF 
 
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" The 
 
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A MANUAL 
 
 FOR 
 
 COURTS-MARTIAL, 
 
 COURTS OF INQUIRY. AND 
 RETIRING BOARDS. 
 
 AND OF OTHER 
 
 PROCEDURE UNDER MILITARY LAWc 
 
 Revised in the Judge-Advocate General's Office, and published 
 by authority of the Secretary of War, 
 
 USE IN THE ARMY OF THE UNITED STATES. 
 
 V OF THE 
 
 UNIVERSITY 
 
 OF . r, 
 
 ^CAi.tFOJ^^»^( Corrected to August, 1910.; 
 
 WASHINGTON: 
 
 GOVERNMENT PRINTING OFFICE. 
 
 1910. 
 
u^. 
 
 
 Qd^^ 
 
 War Department, 
 
 Document No. 370. 
 Office of the Judge-Advocate-General. 
 
 ABBREVIATIONS. 
 
 A. R.— United States Army Regulations of. 1908. 
 A. W. — Articles of War. 
 R. S. — Revised Statutes. 
 
 (2) 
 
>/ 
 
 War Department, 
 Office of the Chief of Staff, 
 
 Washington, December 15, 1908. 
 The Manual for Courts-Martial, Courts of Inquiry, 
 and Retiring Boards, and of other Procedure under 
 Military Law, prepared by direction of the Secretary of 
 War for use in the Army of the United States, is ap- 
 proved and will be published for the information and 
 guidance of all concerned. 
 By order of the Secretary of War: 
 
 J. Franklin Bell, 
 Major-General, Chief of Staff. 
 
 (3) 
 
 2049^1 
 
Digitized by the Internet Archive 
 
 in 2007 with funding from 
 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/armylawOOunitrich 
 
MANUAL FOR COURTS-MARTIAL, COURTS OF 
 INQUIRY, AND RETIRING BOARDS, AND 
 OF OTHER PROCEDURE UNDER 
 MILITARY LAW. 
 
 INTRODUCTION. 
 
 MILITARY JURISDICTION. 
 
 Sec. I. Military Jurisdiction is of four kinds: 
 
 1. Military Law; which is the legal system that reg- 
 ulates the government of the military establishment. 
 It is a branch of the municipal law, and in the United 
 States derives its existence from special constitutional 
 grants of power. 
 
 2. The Law of Hostile Occupation (Military Govern- 
 ment) ; that is, military power exercised by a belliger- 
 ent by virtue of his occupation of an enemy's territory, 
 over such territory and its inhabitants. This belongs 
 to the Law of War and therefore to the Law of Nations. 
 When a conquered territory is ceded to the conqueror, 
 military government continues until civil government 
 is established by the new sovereign. 
 
 3. Martial Law at Home (or, as a domestic fact) ; by 
 which is meant, military power exercised in time of 
 war, insurrection, or rebellion, in parts of the country 
 retaining their allegiance, and over persons and things 
 not ordinarily subjected to it. 
 
 4. Martial Law applied to the Army; that is, mili- 
 tary power extending in time of war, insurrection, or 
 rebellion over persons in the military service, as to obli- 
 gations arising out of such emergency and not falling 
 within the domain of military law, nor otherwise regu- 
 lated by law. 
 
 (5) 
 
6 ARREST AND CONFINEMENT. 
 
 The last two divisions are applications of the doctrine 
 of necessity to a condition of war. They spring from 
 the right of national self-preservation. 
 
 Sec. II. The Source of Military Jurisdiction is 
 the Constitution; the specific provisions relating to it 
 being found in the powers granted to Congress, in the 
 authority vested in the President, and in a provision of 
 the Fifth Amendment. 
 
 2. Military Law is derived from both Written and 
 Univritten Sources. 
 
 The Written Sources are the Articles of War, adopted 
 as a part of the Revised Statutes of the United States 
 in 1874 and since amended in some particulars; other 
 statutory enactments relating to the military service; 
 the Army Regulations; and general and special orders, 
 and decisions promulgated by the War Department and 
 by department, post, and other commanders. 
 
 The Umvritten So2irce is the "custom of war," con- 
 sisting of the customs of the service both in peace and 
 in war. 
 
 Sec. III. Military Tribunals are of three kinds, viz: 
 
 1. Courts-Martial (including summary courts), for 
 the trial of offenders against military law. 
 
 2. Courts of Inquiry, for examining transactions of, 
 or accusations or imputations against, officers or sol- 
 diers. 
 
 3. Military Cominissions, for the trial of offenders 
 against the laws of war and under martial law founded 
 in necessity. 
 
 ARREST AND CON^FIIVEMENT BEFORE TRIAE.i 
 
 Sec. I. Arrest of Officers. — "Officers charged with 
 crime shall be arrested and confined in their barracks, 
 quarters, or tents, and deprived of their swords by the 
 commanding officer." - 
 
 1 Omission of arrest does not affect the jurisdiction of a court. 
 
 2 65th A. W. 
 
ARREST AND CONFINEMENT. 7 
 
 2. " Only commanding officers have power to place 
 officers in arrest, except as provided in the twenty- 
 fourth Article of War. An arrest may be ordered by 
 the commanding officer, in person or through a staff 
 officer, orally or in writing." ^ 
 
 3. "An officer arrested will repair at once to his tent 
 or quarters, and there remain until more extended 
 limits have been granted by the commanding officer. 
 Close confinement will not be enforced except- in cases 
 of a serious nature." - 
 
 4. "An officer in arrest will not wear a sword nor 
 visit officially his commanding or other superior officer, 
 unless directed to do so. His applications and requests 
 of every nature will be made in writing."' 
 
 5. "Officers will not be placed in arrest for light 
 offenses. For these the censure of the commanding 
 officer will generally answer the purpose of discipline. 
 Whenever a commanding officer places an officer in 
 arrest and releases him without preferring charges he 
 will make a written report of his action to the depart- 
 ment commander, stating the cause. The department 
 commander, if he thinks the occasion requires, will call 
 on the officer arrested for any explanation he may desire 
 to make, and take such other action as he may think 
 necessary, forwarding the papers to The Adjutant Gen- 
 eral of the Army for file with the officer's record, or 
 for further action." ■* 
 
 6. "In ordinary cases where inconvenience to the 
 service would result from it, a medical officer will not 
 be placed in arrest until the court-martial for his trial 
 convenes."^ 
 
 7. " When an officer is put in arrest for the purpose 
 of trial, except at remote military posts or stations, the 
 officer by whose order he is arrested shall see that a 
 copy of the charges on which he is to be tried is served 
 
 1 Par. 930, A. R. The commanding officer of a regiment is a " command- 
 ing officer" within the meaning of the 65th A. W., even thoiigh the regi- 
 ment is a constituent part of a brigade post in peace or a brigade in war, and 
 he does not cease to be such commanding officer while part of his regiment 
 is detached from the brigade post or brigade except only as to officers of the 
 detached portion. (Opinion J. A. G., Jan. 29, 1910.) 
 
 2 J<i., 931. 3jc/„934. ^Id., 932. a/d., 933. 
 
8 ARREST AND CONFINEMENT. 
 
 upon hiin within eight days after his arrest, and that he 
 is brought to trial within ten days thereafter, unless the 
 necessities of the service prevent such trial; and then 
 he shall be brought to trial within thirty days after the 
 expiration of said ten days. - If a copy of the charges be 
 not served, or the arrested officer be not brought to 
 trial, as herein required, the arrest shall cease. But 
 officers released from arrest, under the provisions of this 
 article, may be tried, whenever the exigencies of the 
 service shall permit, within twelve months after such 
 release from arrest.''^ 
 
 Sec. II. Arrest and Confinement of Soldiers. 
 
 1. Noncommissioned officers against whom charges 
 may be preferred for trial will be placed in arrest in 
 their barracks or quarters. They will not be confined 
 in the guardhouse in company with privates, except in 
 aggravated cases or where escape is feared.^ 
 
 2. Noncommissioned officers in arrest will not be re- 
 quired to perform any duty in which they may be called 
 upon to exercise command. Noncommissioned officers 
 in confinement will not be sent out to work, 
 
 3. Soldiers against whom charges may be preferred 
 for trial by summary court will not be confined in the 
 guardhouse, but will be placed in arrest in quarters, 
 before and during trial and while awaiting sentence, 
 except when in particular cases restraint may be 
 necessary."^ 
 
 4. Privates against whom charges may be preferred 
 for trial by general court-martial will be confined in the 
 guardhouse before and during trial. While awaiting 
 trial and sentence, or undergoing sentence, they will, if 
 practicable, be kept apart from privates confined for 
 minor offenses or by sentence of an Inferior court.'* 
 
 1 71st A. W. 
 
 2 Par. 937, A. \i. As to placing soldiers in irons, st-o pui^c ()9, par. ',\,pi)sl. 
 3 Par. 941, A. K. 4 /</., 940. 
 
ARREST AND CONFINEMENT. 9 
 
 5. Privates in confinement awaiting trial will not be 
 sent to work with prisoners undergoing sentence if it 
 can be avoided; but may, in the discretion of the com- 
 manding officer, be required to attend drills or be sent 
 to work during the usual working hours under charge 
 of a special sentinel.' 
 
 6. Privates in arrest may, in the discretion of the 
 commanding officer, be required to attend parades, 
 inspections, drills, school, or other military duties and 
 to assist in policing in and around their barracks. 
 
 7. Except as provided in the 24th Article of War, or 
 when restraint is necessarj^ no soldier will be c6nfined 
 without the order of an officer, who shall previously 
 inquire into his offense. Arrest or confinement without 
 trial as a punishment for an offense is forbidden. An 
 officer authorizing the arrest or confinement of a soldier 
 will, as soon as practicable, report the fact to his com- 
 pany or detachment commander.'^ 
 
 Sec. III. General Provisions Relating to the 
 Arrest of Officers and Soldiers. 
 
 1. "No * * * officer commanding a guard shall 
 refuse to receive or keep any prisoner committed to his 
 charge by an officer belonging to the forces of the 
 United States; provided the officer committing shall, at 
 the same time, deliver an account in writing, signed by 
 himself, of the crime charged against the prisoner."-^ 
 ' ' Every officer to whose charge a prisoner is committed 
 shall, within twenty-four hours after such commitment, 
 or as soon as he is relieved from his guard, report in 
 writing,-* to the commanding officer, the name of such 
 prisoner, the crime charged against him, and the name 
 of the officer committing him. * * * "^ 
 
 2. ' ' If there are any prisoners with no record of charges 
 against them, the old officer of the day will report that 
 
 1 Par. 940, A. R. 2 7,7.^ 937 and 938. 3 67th A. W. 
 
 4 Thi* report is usually written in the "Guard Report," and presented to 
 the commanding officer by the old officer of the day at guard mounting, 
 £-68th A. W. 
 
10 
 
 ARREST AND CONFINEMENT. 
 
 fact to the commanding officer, who will give the nec- 
 essary instructions."^ No officer or soldier put in ar- 
 rest or confinement will be so restrained more than 
 eight days, or until such time as a court-martial can be 
 assembled."^ 
 
 1 Par. 942, A. R. 
 
 !70tb A. W. 
 
COURTS-MARTIAL. 
 
 COMPOSITION. 
 
 1. Courts-Martial are composed of commissioned 
 officers only. All officers of the Regular Army, except 
 those on the retired list,^ are eligible for detail for the 
 trial of offenders belonging to the Regular Army; - but 
 no officer will be detailed for the trial of an officer 
 superior to himself in rank when it can be avoided.^ 
 
 2. Officers of the Regular Army and of the Marine 
 Corps, detached for service with the Army by order of 
 the President, may be associated together for the trial 
 of offenders belonging to either of these bodies.^ But 
 with this exception officers of the Regular Army are 
 not competent to sit on courts for the trial of offenders 
 belonging to other forces.^ 
 
 3. Officers of volunteers and of the militia, when the 
 latter are called into the service of the United States, 
 are competent to act as members of courts for the trial 
 of regular officers or soldiers. Militia officers are also 
 competent to sit upon courts for the trial of volunteers. 
 But the majority membership of courts-martial for the 
 trial of the militia must be composed of militia officers.*' 
 
 4. In the United States military ser^dce, the follow- 
 ing-named courts-martial are authorized: 1st, the ' ' Gen- 
 eral Court-martial;" 2d, the "Summary Court;" 
 3d, the "Garrison Court-martial;" 4th, the "Regi- 
 mental Court-martial." 
 
 1 Sec. 1259, R. S. But the Secretary of War may assign retired officers, 
 with their consent, upon courts-martial, courts of inquiry, and boards. 
 Act of April 23, 1904. (33 Stat. L., 264.) 
 
 2 Contract surgeons, dental surgeons, and veterinarians are not eligible to 
 sit, and chaplains are not in practice detailed as members of general courts- 
 martial. 
 
 3 79th A. W. i 78th A. W. » 77th A. W. 
 
 632 Stat., 776, sec. 8, as amended by sec. 6, Act of May 27, 1908 (G. 0. 99 
 A. G. 0., 1908). However, in view of the provisions of the 77th A. W. offi- 
 cers of the Regular Army are not competent to sit on courts-martial for the 
 trial of militia officers. 
 
 (11) 
 
12 CONSTITUTION. 
 
 5. The General Court-martial, being the most impor- 
 tant, "will be first considered — the others, ordinarily 
 called " Inferior Courts-martial," in the order named. 
 But, as all courts-martial have much in common in 
 regard to their jurisdiction, procedure, punishment, 
 etc., the text may, as a rule, be regarded as apposite to 
 all, unless the general court is specially mentioned. 
 Exceptions in regard to jurisdiction, etc., will be made 
 as each inferior court is considered. 
 
 6. A General Court-martial may consist of any num- 
 ber of members from five to thirteen, inclusive, and a 
 judge-advocate; but of not less than thirteen members 
 when this number can be convened without manifest 
 injury to the service.^ When, in the course of a trial, 
 the court is reduced in number by reason of absence, 
 challenge, or the relieving of members, it may proceed 
 with business so long as five members remain. When 
 from any cause a general court is reduced below the 
 minimum, five, it can transact no other business than 
 to direct the judge-advocate to report the fact to the 
 convening authority and to adjourn to await further 
 orders. In such a case, if the trial has not been entered 
 upon, new members may be added; but if any testimony 
 has been taken, the court should preferably be dissolved 
 and a new one ordered.^ 
 
 CO^fSTITUTION. 
 
 1. The President is empowered to institute general 
 courts-martial — 1st, as Commander-in-Chief of the 
 Army, under the Constitution; 2d, in the special con- 
 tingency mentioned in the next paragraph; 3d, in the 
 particular cases provided for by section 1230, Revised 
 Statutes. 
 
 2. Any general officer commanding an army, a terri- 
 torial division, or a department, or colonel commanding 
 a separate department, may appoint a general court- 
 martial whenever necessary.^ But when any such com- 
 
 1 75th A. W. "A decision of the appointing authority as to the number 
 that can be assembled without injury to the service is conclusive." (Par. 
 952, A. R.) 
 
 2 For form of order for general court, see page 147, post. 
 8 See par. 4, this article, 
 
JURISDICTION. 13 
 
 mander is the accuser or prosecutor of any officer under 
 his command the court must be appointed by the Presi- 
 dent} In time of war this power is extended to the 
 commander of a tactical division or of a separate bri- 
 gade; but in this case when such commander is the 
 accuser of any person under his command the court 
 must be appointed by the next higher commander.- 
 
 3. The Superintendent of the United States Military 
 Academy has power to convene general courts-martial 
 for the trial of cadets, subject to the same limitations 
 and conditions now existing as toother courts-martial.^ 
 
 4. The officer who appoints a court-martial — general, 
 garrison, or regimental — may dissolve it, and control 
 its existence, but not the subject-matter of its delibera- 
 tions. In the absence of special orders or legislation to 
 that effect, personal presence within the territorial 
 limits of his department is not essential to the validity 
 of commands given by a department commander to be 
 executed within such limits, such, for instance, as the 
 appointment of a court-martial.'* 
 
 JURISDICTION. 
 
 Sec. I. Courts-martial derive their existence solely 
 from acts of Congress, and their jurisdiction is limited 
 to the purpose of the maintenance of military disci- 
 pline. Their decisions, within their jurisdiction, are 
 not reviewable by any courts whatever.^ The 30th 
 Article of War relates to an exceptional procedure, not 
 necessary to consider in this connection. 
 
 2. Courts-martial have exclusive jurisdiction to try 
 acts constituting military offenses only, and also juris- 
 diction to try acts which, besides constituting military 
 offenses, are civil crimes. In the latter case the military 
 
 i72d A. W. As to when a commander is " the accuser or prosecutor," 
 see Digest Opin. J. A. G., §§ 186, 187, 188. 
 
 2 73d A. W. 
 
 3 Sec. 1326, R. S. 
 
 4 See par. 193, A. R. The authority to fionvene a court-martial or to 
 relieve or detail members, etc., can not be delegated to a staff officer during 
 the absence from his department of the commander (Digest Opin. J. A. G., 
 § 185). 
 
 5 See Digest Opin. J. A. G., § 992, and note. 
 
14 JURISDICTION. 
 
 ordinarily gives precedence to the civil court; in general, 
 however, that jurisdiction which has first fully attached 
 is properly allowed to have the precedence, and when 
 an officer or a soldier has been arraigned before a duly 
 constituted court-martial for an offense triable by it, 
 the jurisdiction thus attached can not be set aside by 
 the process of a State court.^ 
 
 3. As regards persons, courts-martial have jurisdic- 
 tion, at all times and in all places, over officers and sol- 
 diers of any troops, whether militia or others, mustered 
 and in pay of the United States.- over officers and sol- 
 diers of the marines, when detached for service with 
 the Army,'^ over persons who fraudulently enlist in the 
 service of the United States and receive pay or allow- 
 ance thereunder,* and over offenders, in general, to 
 whom, owing to the commission of a crime, military 
 jurisdiction has legally attached — as by an arrest or 
 confinement — before expiration of term of service, pro- 
 vided such jurisdiction is not terminated by their dis- 
 charge. This jurisdiction over persons in the military 
 service covers all military offenses committed by them, 
 whether within or beyond the territorial jurisdiction of 
 the United States. Military offenses are not territorial. 
 
 4. As a rule, military jurisdiction ends when a sol- 
 dier is discharged. The present exceptions to this rule 
 are, discharged officers and soldiers guilty of fraud 
 against the United States under the 60th Article of 
 War; discharged officers granted trial after summary 
 dismissal, under section 1230, Revised Statutes; and 
 military convicts.^ 
 
 iSee Digest Opin. J. A. G., § 1036, and notes. Par. 963, A. R., provides 
 that "in order that military jurisdiction may promi)tly vest, charges will 
 be preferred immediately in every case that is subject to military jurisdic- 
 tion but in which the offense is of such a nature that it is possible for the 
 civil courts also to claim jurisdiction." 
 
 - 64th A. W. This includes retired officers and soldiers. 
 
 3 Sec. 1621, K. S. 
 
 4 Act of July 27, 1892; see G. 0. 57, A. G. 0. 1892. A fraiididoit cvllstment 
 is an enlistment procured by means of a willful misrepresentation in regard 
 to a qualification or dis(iualification for enlistment, or by intentional con- 
 cealment of a disqualification, which has had the effect of causing the en- 
 listment of a man not qualified to be a soldier, and who but for such false 
 representation or concealment would have been rejected. 
 
 6 Act approved June 18, 1898, page 1^0, post. 
 
f UNIVERSITY I 
 
 [G^. OF fd 
 
 JURISDICTK 
 
 5. In time of war this jurisdiction extends to " all re- 
 tainers to the camp and all jDersons serving with the 
 armies of the United States in the field, though not 
 enlisted soldiers;"^ to any person who "relieves the 
 enemy with money, victuals, or ammunition, or know- 
 ingly harbors or protects an enemy ; " ^ or who ' ' holds cor- 
 respondence with, or gives intelligence to, the enemy, 
 either directly or indirectly; '"^ and to spies. ^ 
 
 6. As regards offenses, the jurisdiction embraces, the 
 offenses specifically defined in the Articles of War, or 
 included under the general terms of the 61st and 62d 
 articles; the offense of military persons trading with 
 the enemy ,^ and that of fraudulently enlisting in the 
 service of the United States.^ 
 
 7. A court having once duly assumed jurisdiction of 
 an offense and person, can not, by any wrongful act of 
 the accused, be ousted of its authority or discharged 
 from its duty to proceed fully to try and determine, 
 according to law and its oath. Thus the fact that, 
 pending the trial, the accused has escaped from mili- 
 tary custody, furnishes no ground for not proceeding to 
 a finding, and, in the event of conviction, to a sentence, 
 in the case; and the court may and should find and 
 sentence as in any other case. 
 
 Sec. II. General Courts-Martial have, as regarclsper- 
 S071S and u'ith reference to other courts-martial, exclusive 
 jnrisdictio7i over officers,'' cadets,^ and " candidates for 
 promotion. ' ' ^ Over enlisted men, other than candidates 
 for promotion, and military convicts, they have concur- 
 rent jurisdiction with the Inferior courts'" in cases cogni- 
 zable by the latter. '^ 
 
 I 63d A. W. 2 45th A. W. 3 46th A. W. 
 
 4 Sec. 1343, R. S. a Sees. 5306 and 5313, 11. S. 
 
 6 Act of July 27, 1892; see G. 0. 57, A. G. 0., 1892. For definition of 
 fraudulent enlistment, see page 14, note 4, ante. 
 1 83d A. W. . 8 Sec. 1326, R. S. 
 
 9 Act of July 30, 1892; G. 0. 79, A. G. 0., 1903. 
 
 10 They have concurrent jurisdiction with garrison and regimental courts- 
 martial in time of war over the persons mentioned in the 63d A. W. 
 
 II Par. 967, A. R., prescribes that noncommissionedofficers will not, if they 
 object thereto, be brought to trial before regimental, garrison, or summary 
 court-martial without the authority of the officer competent to order their trial 
 by general court-martial. See also act approved June 18,1898, page 130,i)os^ 
 
16 CHARGES AND SPECIFICATIONS. 
 
 2. As regards offenses,^ they have exclusive jurisdic- 
 tion over all offenses punishable capitally,^ and over 
 those set forth in the 58th Article, when committed in 
 time of war. Over other offenses they have concurrent 
 jurisdiction with the inferior courts; but all offenses 
 for which the limit of punishment is in excess of the 
 limits of the punishing power of an inferior court, as 
 well as all serious noncapital offenses for which limits 
 of punishment have not been prescribed, will, when 
 practicable, be tried by general court-martial. 
 
 CHARGES AND SPECIFICATIONS. 
 
 Sec. I. A military charg'e corresponds to a eivilindict- 
 vient. It consists of two parts — the technical ' ' charge,' ' 
 which designates the alleged offense in general terms, 
 and the " specification,'' which sets forth the facts con- 
 stituting the same. The requisite of a charge is, that it 
 shall be laid under the proper Article of War or other 
 statute; of a specification, that it shall set forth facts 
 sufficient to constitute the particular offense. Under 
 the general term " charges, " any number of technical 
 charges and their specifications may be included. 
 
 2. When an Article of War relates to but one kind of 
 offense, the charge may be laid as a violation of such 
 article. If the offense has a technical name or descrip- 
 tion known to the service, such as "Desertion," "Ab- 
 sence- without-leave," " Sleeping^on post," etc., it may 
 be charged simply as such, or, preferably, also laid 
 under the appropriate Article of War. A charge laid 
 under the 61st Article of War will properly describe 
 the offense as " conduct unbecoming an officer and a 
 gentleman." A charge laid under the 62d Article of 
 War may give the name or description of the offense, 
 alleging it to be " in violation of the C2d Article of 
 War," or may describe it as "conduct to the prejudice 
 of good order and military discipline." 
 
 1 Military offenses, wheresoever comniitted, are punishable under the 
 Articles (jf War; see page 14, par. 3, ante. 
 
 2 83d A. W. 
 
CHARGES AND SPECIFICATIONS. 17 
 
 3. When an offense is specifically provided for in an 
 Article of War the charge will be laid under that article 
 and not under the 6'2d Article. Especially is it wrong to 
 lay a charge under the 62d Article when the offense falls 
 under an article which prescribes a fixed punishment. 
 
 4. In case of an absence from any appointed parade, 
 drill, or other exercise, but not from the limits of the 
 post, the charge should be laid under the 33d Article of 
 War; in case of absence from the post, or command, 
 under the 32d; and sometimes, in order that the court 
 may be able to judge of the full nature of the offense, 
 under both, as when some duty, other than an ordinary 
 roll call, is neglected; e. g., when a soldier, regularly 
 detailed for guard, absents himself not only from guard 
 mounting but also from his post. 
 
 5. Soldiers found drunk on any guard, party, or other 
 duty after having actually entered upon such duty, but 
 not until then discovered to be drunk, should be 
 charged with violation of the 38th Article of War. 
 
 6. In preferring charges against an enlisted man who 
 has coupled with desertion a later fraudulent enlistment, 
 there will be added to the usual specification setting 
 forth the desertion, an additional one setting forth the 
 offense of desertion by reenlisting without a regular dis- 
 charge from his former regiment, troop, battery, or com- 
 pany. The specifications to the charges of desertion and 
 fraudulent enlistment will set forth the offenses under 
 the original name and organization, and include the 
 other name, etc., under an alias.^ 
 
 7. Accused persons will not be joined in the same 
 charge, nor tried on joint charges, unless for concert 
 of action in an offense. To warrant the joining of 
 several persons in the same charge, the offense must be 
 such as requires for its commission a comVjination and 
 must have been committed in concert, in pursuance of 
 a common intent. 
 
 8. As to whether an act which is a civil crime is also 
 a military offense no rule can be laid down which will 
 cover all cases, for the reason that what may be a 
 military offense under certain circumstances may lose 
 
 ICir. 76, W. D., lf<08. See forms for cli:irgeH, pages !»« aii'l 142, jtonl. 
 5(»(»03 2 
 
18 CHARGES AND SPECIFICATIONS. 
 
 that character under others. For instance, larceny by 
 a soldier from a civilian is not always a military crime, 
 but it may become such in consequence of the particu- 
 lar features, surroundings, or locality of the act. What 
 these may be can not be anticipated with a sweeping 
 rule, comiDrehensive enough to provide for every possi- 
 ble conjunction of circumstances. Each case must be 
 considered on its own facts. But if the act be com- 
 mitted on a military reservation, or other ground occu- 
 pied by the army, or in its neighborhood, so as to be in 
 the constructive presence of the army; or if committed 
 while on duty, particularly if the injury be to a mem- 
 ber of the community whom it is the offender's duty to 
 protect: or if committed in the presence of other sol- 
 diers, or while in uniform; or if the offender use his 
 military position, or that of another, for the purpose of 
 intimidation or other unlawful influence or object- 
 such facts would be sufficient to make it prejudicial to 
 military discipline within the meaning of the 62d 
 Article of War. 
 
 Sec. II. The specification need not possess the tech- 
 nical nicety of an indictment at common law. A bald 
 statement of facts is sufficient, provided the legal 
 offense itself be distinctly and accurately described.' 
 
 2. In order that the accused may be left in no doubt 
 as to the precise offense with which he is charged, the 
 ti7ne and j^lftce of the commission of the offense should 
 be stated as accurately as possible. When any doubt 
 exists as to the exact date and locality, it may be stated 
 that the act specified was committed " on or about" a 
 certain time, or "at or near" a given place. In pre- 
 paring several specifications under one charge, the time 
 and place of the alleged offense should be given in each. 
 
 Sec. III. Many of the Articles of War include two or 
 more offenses. When a charge is to be laid under such 
 an article, the particular offense committed should be 
 stated. A specification in an alternative form is bad 
 
 1 Digest Opin. J. A G., § 695, and note. 
 
CHARGES AND SPECIFICATIONS. ' 19 
 
 pleading. For example, it is wrong to allege ''selling 
 ov through neglect losing," in violation of the 17th 
 Article of War. 
 
 2. The prosecution is at liberty to charge an act 
 under two or more forms, when it is doubtful under 
 which it will more properly be brought by the testi- 
 mony. In the military practice, the accused is not 
 entitled to call upon the prosecution to elect under 
 which charge it will proceed in such, or indeed in any, 
 case. 
 
 Sec. IV. "Before forwarding charges they will be 
 carefully investigated by the commanding officer, or an 
 officer designated by him, other than the officer prefer- 
 ring the charges, and in forwarding the charges the 
 name of the officer making the investigation will be 
 noted in the commanding officer's indorsement. The 
 commanding officer will state in his indorsement 
 whether or not, in his opinion, the charges can be sus- 
 tained." ' Before referring to summary courts charges 
 for which the maximum limit of punishment that may 
 be awarded is greater than one month's forfeiture and 
 confinement, commanding officers will cause the accused 
 to sign a statement on the charge sheet as to whether 
 or not he consents to trial by summary court. A note 
 of this statement in each case will also be entered on 
 the monthly report of trials by such court. 
 
 2. Charges against an enlisted man forwarded to the 
 authority ordering a general court-martial, or sub- 
 mitted to a summary, garrison, or regimental court, 
 must be accompanied by the proper evidence of previ- 
 ous convictions.- "General courts-martial will con- 
 sider only such evidence of previous convictions as is 
 referred to them by the convening authority."'^ 
 
 3. Charges against an enlisted man forwarded to the 
 authority competent to order a general court-martial 
 for his trial will also be accompanied by a statement of 
 
 1 Par. 963,A. K. - Id., 962 aud 964; see page 48, par. 2, jjos<. 3 /j.^ 971. 
 
'2^ ORGAXIZATION. 
 
 service^ in accordance with the form given on page 145, 
 post. In case of a deserter the surgeon's report required 
 by paragraph 125, Army Regulations, will also be for- 
 warded with the charges. - 
 
 Sec. V. After charges have been formally referred by 
 competent authority to a court-martial for trial, the 
 court is not authorized in its discretion and upon its 
 own motion, to strike out a charge or specification, or 
 to direct or permit the judge-advocate to drop, or with- 
 draw, such charge or specification, or to enter a nolle 
 prosequi as to the same. For such action the authority 
 of the convening officer is requisite. Where, however, 
 by a special plea or objection, an issue is made by the 
 accused as to the sufficiency of any charge and specifica- 
 tion, the court, without referring the question to the 
 convening officer, is empowered to sustain the plea or 
 objection, and quash or strike out the charge. 
 
 2. Charges should be signed by a commissioned offi- 
 cer, but a contract surgeon or dental surgeon may sign 
 charges against an enlisted man.^ 
 
 ADDITIOXAL CHARGES. 
 
 1. «After the accused has been arraigned upon certain 
 charges, has pleaded thereto, and the trial on the same 
 has been entered upon, new and additional charges, 
 which the accused has had no notice to defend, can not 
 be introduced or the accused required to plead thereto. 
 Such charges should be made the subject of a separate 
 trial, upon which the accused may be enabled properly 
 to exercise the right of challenge to the members of the 
 court and effectively to plead and defend. 
 
 ORGAXIZATIOX. 
 
 1 . The authority appointing a court-martial designates 
 the place for holding the court, the hour of meeting, 
 the members of the court, and a judge-advocate.^ 
 
 1 See pas^e 64, par. 7, jios/, ami par. 902, A. K. 
 
 - For form, see page 145, post. 
 
 sPar. 1413, A. K. 4 Pars. 952 and 953, A. R. 
 
ORGANIZATION. 21 
 
 2. Courts will be assembled at posts or stations where 
 trial or examination will be attended with the least 
 expense. They will, as far as practicable, hold their 
 sessions so as to interfere least with ordinary routine 
 duties. 
 
 3. A general court-martial assembles at its first ses- 
 sion in accordance with the order convening it; there- 
 after, according to adjournment. The members wear 
 dress uniform, or service uniform in commands not 
 pro\aded with dress uniform, with their sabers; the 
 judge-advocate and the accused appear in the same 
 uniform as the court without side arms. Military wit- 
 nesses wear the same uniform as the court with side 
 arms. The accused should not be brought before the 
 court in irons, unless there are good reasons to believe 
 that he will attempt to escape or to conduct himself in 
 a violent manner; but the fact that a prisoner has been 
 tried in irons can not, in any case, affect the validity of 
 the proceedings. 
 
 4. When the court is ready to proceed, the members 
 take seats at a table provided for their use; the presi- 
 dent sits at the head of the table and the other members 
 at his right and left alternately, according to rank. 
 The judge-advocate sits at the foot of the table or at a 
 separate table; the accused and his counsel at a table 
 provided for them and placed in a convenient position. 
 A witness, when testifying, is seated near the judge- 
 advocate, and the reporter at a table placed near the 
 witness' chair. 
 
 5. The order of procedure is given in detail in the 
 " form for record of a general court-martial," page 144, 
 post. During the reading of the order convening the 
 court and the arraignment, the judge-advocate and the 
 accused should stand; while the court and the judge- 
 advocate are being sworn, all stand; when a reporter, an 
 interpreter, or a witness is being sworn, he and the 
 judge-advocate should stand; and when the judge-advo- 
 cate, the accused, or his counsel addresses the court, he 
 should rise. 
 
22 THE MEMBERS. 
 
 6. The organization of the court is complete on the 
 swearing in of the members and the judge-advocate. 
 
 THE MEMBERS. 
 
 1. Members of a conrt-martial will be named in the 
 order appointing it, in accordance with their rank. 
 They will sit according to rank as announced, and will 
 ' ' behave with decency and calmness . " ' A court-martial 
 has no power to punish its members, but a member is 
 liable for improper conduct as for any other offense 
 against military discipline. Improper words used by a 
 member should be taken down in writing, and any dis- 
 orderly conduct reported to the appointing authority.'^ 
 
 Reading of newspapers or other evidence of inatten- 
 tion by members of a court-martial during its sessions 
 constitutes a violation of duty to the prejudice of good 
 order and military discipline. It is the duty of the 
 -president of the court to admonish against such inatten- 
 tion, and charges may be preferred against a member 
 who does not heed the admonition. 
 
 2. " Members of a court-martial, in giving their votes, 
 shall begin with the youngest in commission."^ In all 
 deliberations the law secures the equality of the 
 members. 
 
 3. When a member is prevented from attending a 
 session of the court he will communicate the cause to 
 the judge-advocate, so that the same may be entered in 
 the record of proceedings. If he fails to do so it is the 
 duty of the president at the next meeting of the court 
 to call upon him for such explanation as he may desire 
 to make. 
 
 4. A member stationed at the place where a court- 
 martial sits is liable to duty with his command during 
 adjournment of the court from day to day.* 
 
 1 Par. 952, A. R., aud the 87th A. W. 
 
 2 Par. 955, A. R. 
 
 3 95th A. W. A tie vote on the findings is a vote of "not guilty;" a tie 
 vote on a proposed sentence or on any objection or motion is a vote in the 
 negative. The sentence is not adopted, and the objection or motion is not 
 sustained. "iPar. 953, A. R. 
 
THE JUDGE-ADVOCATE. 23 
 
 THE PRESIDENT. 
 
 1. "A president of the court will not be announced. 
 
 The officer highest in rank present will act as presi- 
 dent."^ Besides his duties and privileges as a member, 
 the president is the organ of the court to maintain 
 order and conduct its business. He speaks and acts for 
 the court in every instance where a rule of action has 
 been prescribed by law, regulations, or its own resolu- 
 tion. He administers the oath to the judge-advocate 
 and authenticates by his signature all acts, orders, and 
 proceedings of the court requiring it. 
 
 THE JUDGE- ADVOCATE. 
 
 1. ."The judge-advocate * * shall prosecute in the 
 name of the United States, but when the prisoner has 
 made his plea he shall so far consider himself counsel 
 for the prisoner as to object to any leading question to 
 any of the witnesses, and to any question to the pris- 
 oner, the answer to which might tend to criminate 
 himself."' 
 
 2. Before the court assembles the judge-advocate should 
 note and report to the convening authority any irregu- 
 larity in the order convening the court and see that the 
 charges are technically and correctly drawn. He may 
 ordinarily correct obvious mistakes of form, or slight 
 errors in name, dates, amounts, etc., but he should not, 
 without the authority of the convening officer, make 
 substantial amendments in the allegations, or — least of 
 all — reject or withdraw a charge or specification, or en- 
 ter a nolle prosequi as to the same, or substitute a new 
 and distinct charge for one transmitted to him for trial. 
 
 3. The judge-advocate should acquaint the prisoner 
 with the accusations against him, inform him of his right 
 to have counsel, '^ and to testify in his own behalf, and 
 furnish him with a copy of the charges, if desired. He 
 may ask a prisoner how he intends to plead; but, when 
 the accused is an enlisted man, he should in no case try 
 
 1 Par. 954, A. E. 290th A. W. '^ See i>a.se 2o, post. 
 
24 THE JUDGE-ADVOCATE. 
 
 to induce him to plead guilty or leave him to infer that 
 if he does so his punishment will be lighter. When the 
 accused determines to plead guilty the judge-advocate 
 should advise him of his right to introduce evidence in 
 explanation of his offense, and should assist him in secur- 
 ing it; and if the charge be desertion, the judge-advocate 
 should satisfy himself that the accused understands 
 that such plea will be an admission of his unauthorized 
 absence with the intention of not returning. 
 
 4. The judge-advocate should also, before the court 
 assembles, obtain a suitable room for the court, see that 
 it is in order, procure the requisite stationery, summon 
 necessary witnesses,' make a preliminary examination 
 of the latter, and as far as possible systematize his plans 
 for conducting the case. 
 
 5. Diiinng the trial the judge-advocate conducts the 
 case for the Government. He executes all orders of 
 the court; reads the convening order to the accused; 
 swears the members of the court, the reporter, inter- 
 preter, and all witnesses; arraigns the accused; exam- 
 ines witnesses; keeps, or superintends the keeping of, a 
 complete and accurate record of the proceedings,- and 
 affixes his signature to each day's proceedings.^ In con- 
 junction with the president of the court he authenticates 
 the record by his signature, ^ and at the end of the trial 
 transmits the same to the convening authority.^ When- 
 ever, by reason of the death or disability of the judge- 
 advocate occurring after the court has decided on the 
 sentence, the record can not be authenticated by his 
 signature, it must show that it has been formally ap- 
 proved by the court and must be authenticated by the 
 signature of the president.^ 
 
 6. While the court is in open session the judge-advo- 
 cate should respectfully call the attention of the court 
 
 1 See page 34, 'poxt. 
 
 2 For form for record, see page 146, poRt. 
 spar. 988, A. R. 
 
 * Id., 990. The proceedings of all courts api)ointe(l by the President will 
 be sent direct to the Secretary of War. (Par. 925, A. I\.) 
 5 Id., 988. 
 
COUNSEL. 25 
 
 to any illegalities in its action, and to any irregularities 
 in its proceedings. He should act as legal adviser of 
 the court so far as to give his opinion upon any point 
 of law arising during the trial, when it is asked for by 
 the court, but not otherwise. 
 
 7. When a court sits in closed session the judge- 
 advocate will withdraw, and when his legal advice or 
 assistance is required, it will be obtained in open court. ^ 
 
 8. Throughout the trial the judge-advocate should do 
 his utmost to present the whole truth of the matter in 
 question. He should oppose every attempt to suppress 
 facts or to torture them into false shapes, to the end 
 that the evidence may so exhibit the case that the court 
 may render impartial justice. 
 
 9. The judge-advocate should regard his duty toward 
 the accused as not strictly limited by the 90th Article 
 of War, and when the latter is ignorant and without 
 counsel the judge-advocate should take care that he 
 does not suffer upon the trial from any ignorance or 
 misconception of his legal rights, and has full oppor- 
 tunity to interpose such pleas and make such defense 
 as may best bring out the facts, the merits, or the ex- 
 tenuating circumstances of his case. 
 
 10. Whenever the court adjourns to meet at the call 
 of the president, the judge-advocate will notify the 
 members of the time designated by the president for 
 reassembling. 
 
 COUNSEL. 
 
 1. The accused is not of right entitled to counsel, but 
 the privilege is almost invariably conceded, and if re- 
 fused, such refusal may be ground for the disapproval 
 of the proceedings. - 
 
 2. The commanding officer of a post where a general 
 court-martial is convened will, at the request of any 
 prisoner who is to be arraigned, detail a suitable officer 
 as counsel for the defense. If there be no such officer 
 
 1 Par. 956, A. R. 2 Digest Opins. J. A. G., § 984. 
 
26 REPORTER. 
 
 available for detail the fact will be reported to the 
 authority appointing the court for his action.^ 
 
 3. An officer detailed as counsel for a soldier before 
 a general court-martial should guard the interests of 
 the accused by all honorable and legitimate means 
 known to the law, so far as they are not inconsistent 
 with military relations.- He should not obstruct the 
 proceedings with frivolous or manifestly useless ob- 
 jections. 
 
 4. If the judge-advocate keeps the record in longhand 
 the counsel will be required to reduce his questions and 
 arguments to writing; but if the court has a steno- 
 graphic reporter the counsel will be allowed to question 
 witnesses and address the court orally. 
 
 REPORTER. 
 
 1. " The commanding officer will detail, when neces- 
 sary, a suitable enlisted man as clerk to assist the judge- 
 advocate of a general court-martial, or military com- 
 mission, or the recorder of a court of inquiry.^ 
 
 2. " A judge-advocate of a general court-martial or 
 military commission, and a recorder of a court of in- 
 quiry, when appointed by a general officer or a colonel 
 exercising the command of a general officer, may employ 
 when authorized by the convening authority, a steno- 
 graphic reporter, who shall be paid at the following rates 
 of compensation by the Pay Department on vouchers 
 certified to be correct by the judge-advocate or recorder, 
 who will forward a copy of the same with the record : 
 
 "For each case not to exceed one dollar ($1.00) a,n 
 hour for time actually spent in court during the trial or 
 hearing, except when the court or commission sits less 
 than three hours during the first day,* when the allow- 
 
 1 Par. 970, A. K. This privilege of being represented by counsel does not 
 apply to cases before inferior courts. 
 "'Id. 
 
 3/(Z., 995. 
 4SeeCir. 81, W. D.. 1908. 
 
REPORTER. 27 
 
 ance for such day shall be three dollars ($3.00). Time 
 will be reckoned to the nearest half of an hour. 
 
 " Fifteen (15) cents for each 100 words for transcrib- 
 ing notes and making that portion of the original record^ 
 which is typewritten; but no allowance shall be made 
 for the first carbon copy of that portion of the record 
 which is typewritten or for original papers which are 
 appended as exhibits.^ 
 
 "Ten (10) cents for each 100 words for copying 
 papers material to the inquiry, and two (2) cents for 
 each 100 words for each carbon copy of the same, when 
 ordered by the court or commission for its use. 
 
 " Two (2) cents for each 100 words for the second and 
 each additional carbon copy of the record when author- 
 ized by the convening authority. 
 
 " Except for such part of the journey as may be cov- 
 ered by Government transportation, mileage at the rate 
 authorized for a civilian witness not in Government 
 employ, and three (S3. 00) dollars a day for expenses 
 when the judge-advocate or recorder keeps him at his 
 own expense, away from his usual place of employment 
 for twenty-four hours or more, on public business re- 
 ferred to the court or commission, shall be allowed the 
 reporter for himself, and when ordered by the court 
 or commission, for each necessary assistant. 
 
 "The judge-advocate or recorder shall require the 
 reporter to furnish the typewritten record of the pro- 
 ceedings of each session of the court or commission with 
 one carbon copy of the same not later than twenty-four 
 hours after the adjournment of that session. The com- 
 plete record to be finished, indexed, bound, and ready 
 for authentication not later than forty-eight hours after 
 the completion of its action by the court or commission 
 on the merits of the case or hearing." ^ 
 
 1 Original record includes exhibits. 
 
 - The carbon copy is for use of the judge-advocate and the court during the 
 trial, and, if accused desires, it should, after being corrected, completed 
 and certified as a true copy, except as to findings, sentence, and exhibits not 
 copied, be furnished to him. When this is done a certificate to that effect 
 will accompany the record. If not furnished to the accused it will be trans- 
 mitted direct to the Judge- Advocate-General of the Army. 
 
 3 Par. 996, A. K. For form for index, see page lie, post. 
 
28 INTERPRETER — CHALLENGE. 
 
 3. Reporters are selected and employed by the judge- 
 advocate of the court, and will be paid by the Pay 
 Department on the certificate of the judge-advocate.^ 
 
 4. "No person in the military or civil service of the 
 Government can lawfully receive extra compensation 
 for clerical duties performed for a military court. "^ 
 
 INTERPRETER. 
 
 1. " Interpreters to courts-martial are paid by the Pay 
 Department upon the certificate of the judge-advocate 
 that they were employed by order of the court. They 
 will be allowed the pay and allowances of civilian wit- 
 nesses."^ 
 
 CHALLENGE. 
 
 1. "Members of a court-martial maybe challenged 
 by a prisoner, but only for cause stated to the court. 
 The court shall determine the relevancy and validity 
 thereof, and shall not receive a challenge to more than 
 one member at a time. ' ' * Under the custom of the serv- 
 ice the judge-advocate may also challenge for cause. 
 
 2. A positive declaration by the challenged member 
 that he is not prejudiced against the accused, nor inter- 
 ested in the case, is ordinarily satisfactory to the accused, 
 and, in the absence of material evidence in support of 
 the objection, will justify the court in overruling it. If, 
 however, the statement is unsatisfactory, or the member 
 makes no response, the accused may offer testimony in 
 support of his objection or may subject the challenged 
 
 1 Par. 99G, A. R. For form of voucher for payment of reporter, see page 
 184, post. 
 
 ^Id., 997. 
 
 3J(Z., 998. As to pay, etc., of civilian witness, see pai^o 43, ^jos^ Inter- 
 preters are paid on tlie blank forms used for civilian witnesses not in Gov- 
 ernment employ. 
 
 4 88th A. W. This Article of War authorizes the exercise of the right of 
 challenge before all courts except summary courts. 
 
OF THE 
 
 UNIVERSITY 
 
 OATHSX cz. ^^ ^ /^9 
 
 member to an examination by interrogatories in the 
 same manner that a juror is examined in criminal courts. 
 If the accused desires that the challenged member be 
 put on his voii' dire, the judge-advocate w411 administer 
 the oath before the court is sworn. 
 
 3. Courts should be liberal in passing upon challenges, 
 but they will not entertain an objection that is not spe- 
 cific, nor one upon the mere assertion of the accused, if 
 it is not admitted by the challenged member. A chal- 
 lenge upon the ground, admitted or proven, that a 
 member preferred the charges or is a material witness 
 in support thereof, or that he has investigated the 
 charges and expressed the opinion that they can be 
 established, should be sustained by the court. 
 
 4. The court of itself can not excuse a member in the 
 absence of a challenge. A member, not challenged, 
 who thinks himself disqualified, can be relieved only 
 by application to the convening authority. No member 
 who has been absent during the taking of evidence shall 
 thereafter take part in the trial; but this provision shall 
 not be construed as invalidating the proceedings of 
 courts-martial if no objection is made, and the court 
 permits the member to sit, but is to be regarded as a 
 requirement which should always be complied with 
 when practicable. Especially should a member who 
 has been absent during an important part of the pro- 
 ceedings not be permitted to resume his seat. 
 
 5. The judge-advocate is not challengeable; but in 
 case of personal interest in the trial he should apply to 
 the convening authority to be relieved. 
 
 OATHS. 1 
 
 Of Members. — The judge-advocate shall administer 
 to each member before the court proceeds upon any 
 
 1 Whenever the same court-martial tries more than one prisoner on 
 separate and distinct charges, the oaths herein prescribed will be admin- 
 istered anew. 
 
30 OATHS. 
 
 trial, the following oath, which shall also be taken by- 
 all members of regimental and garrison courts-martial: 
 " You, A B, do swear that you will well and truly try 
 and detei-mine, according to evidence, the matter now 
 before you, between the United States of America and 
 the prisoner to be tried, and that you will duly admin- 
 ister justice, without partiality, favor, or affection, 
 according to the provisions of the r^les and articles for 
 the government of the armies of the United States, and 
 if any doubt should arise, not explained by said articles, 
 then according to your conscience, the best of your 
 understanding, and the custom of war in like cases; 
 and you do further swear that you will not divulge the 
 sentence of the court until it shall be published by the 
 proper authority, except to the judge-advocate; neither 
 will you disclose or discover the vote or opinion of any 
 particular member of the court-martial, unless required 
 to give evidence thereof, as a witness, by a court of 
 justice, in a due course of law. So help you God." ^ 
 
 2. Of the Judge-Advocate. — When the oath has been 
 administered to the members of a court-martial, the 
 president of the court shall administer to the judge- 
 advocate, or person officiating as such, an oath in the 
 following form:'- 
 
 " You, A B, do swear that you will not disclose or dis- 
 cover the vote or opinion of any particular member of 
 the court-martial, unless required to give evidence 
 thereof, as a witness, by a court of justice, in due course 
 of law; nor divulge the sentence of the court to any but 
 the proper authority, until it shall be duly disclosed by 
 the same. So help you God." ^ 
 
 3. Of Witness. — All persons who give evidence before 
 a court-martial shall be examined on oath, or affirma- 
 tion, in the following form: 
 
 "You swear (or affirm) that the evidence you shall 
 give, in the case now in hearing, shall be the truth, the 
 
 1 84th A. w. 
 
 2 During tilt' administration of the oaths to the court and the judge-advo- 
 cate, all members of the court, the judge-advocate, and the accused stand. 
 3 85th A. W. 
 
POSTPONEMENT. 31 
 
 whole truth, and nothing but the truth. So help you 
 God."i 
 
 4. Of Reporter. — "You swear that you will faithfully 
 perform the duties of reporter to this court. So help 
 you God." 
 
 5. Of Interpreter. — " You swear that you will truly 
 interpret in the case now in hearing. So help you 
 God." 
 
 G. Voir Dire. — "You swear that you will true an- 
 swers make to questions touching your competency as 
 a member of the court (or witness) in this case. So 
 help you God." 
 
 7. Judge-advocates of departments and of courts- 
 martial, and the trial officers of summary courts, are 
 authorized to administer oaths for the purposes of mili- 
 tary justice, and for other purposes of military admin- 
 istration. - 
 
 8, "Any officer or clerk of any of the departments 
 lawfully detailed to investigate frauds on, or attempts 
 to defraud, the Government, or any irregularity or mis- 
 conduct of any officer or agent of the United States, and 
 any officer of the Army detailed to conduct an investi- 
 gation, and the recorder, and if there be none the pre- 
 siding officer of any military board appointed for such 
 purpose, shall have authority to administer an oath to 
 any witness attending to testify or depose in the course 
 of such investigation." ■' 
 
 POSTPONEMENT. 
 
 1. If , before the accused is arraigned, a postponement 
 is necessary, application therefor should properly be 
 made to the convening authority. The court may, dur- 
 ing trial, "for reasonable cause, grant a continuance to 
 either party, for such time, and as often as may appear 
 to be just: Provided, That if the prisoner be in close 
 
 1 92d A. W. 
 
 2 Act of July 27, 1892; see O. O. 57, A. G. 0., 1892. 
 
 3 Sec. 183, K. S., aa ameuded by act of March 2, 1901, p. lZ2,po8L 
 
32 ARRAIGNMENT — PLEAS. 
 
 confinement, the trial shall not be delayed for a period 
 longer than sixty days."' 
 
 2. Upon application by the accused for a postpone- 
 ment or a continuance because of the absence of a wit- 
 ness, it should distinctly appear, on his oath, that the 
 witness is material, and why, and that the accused has 
 used due diligence to procure his attendance, and has 
 reasonable ground to believe, and does believe, that he 
 will be able to procure such attendance within a reason- 
 able time stated. 
 
 3. Application for extended delay will, when practi- 
 cable, be made to the authority appointing the court. 
 When made to the court, if in the opinion of the court 
 it is well founded, it will be referred to the convening 
 authority to decide whether the court shall be adjourned 
 or dissolved. 
 
 ARRAIGIS^MENT. 
 
 1. The court being organized, and both parties ready 
 to proceed, the judge-advocate will read the charges 
 and specifications, separately and in order, to the ac- 
 cused, and ask him how he pleads to each — "guilty," or 
 "not guilty." The order pursued, in case of several 
 charges or specifications, will be to arraign on the first, 
 second, etc., specifications to the first charge, then on 
 the first charge, and so on with the rest.-' 
 
 PLEAS. 
 
 1. Ordinarily the plea of the accused is "guilty" or 
 "not guilty " to each charge and specification; or, guilty 
 of a specification excepting certain words, and of the 
 excepted words not guilty; or, as when charged with an 
 offense which includes a lesser one of kindred degree, 
 guilty to the specification except certain words, substi- 
 tuting therefor certain others, and to the charge not 
 guilty, but guilty of the lesser kindred offense.^ 
 
 1 93d A. w. 
 
 2 During the. arraigninent the judge-advocate and the accused stand. 
 
 3 See page 46, par. 3, posl. 
 
• PLEAS. 33 
 
 2. A plea of guilty does not necessarily exclude evi- 
 dence. In cases of discretionary punishment,^ a full 
 knowledge of the circumstances attending the offense is 
 essential to the court in measuring the punishment, and 
 to the convening authority in acting on the sentence. 
 It is, therefore, proper for the court to take evidence 
 after a plea of guilty, except when the specification is 
 so descriptive as to disclose all the circumstances of 
 mitigation or aggravation. 
 
 3. In all cases after a plea of guilty, the accused will 
 be permitted to offer evidence in mitigation of the 
 offense charged ; and if the offense be desertion, it 
 should appear of record that he understood his plea to 
 admit the intention to abandon his enlistment and not 
 merely an unauthorized absence.^ 
 
 4. When testimony is heard after a plea of ' ' guilty," 
 the witnesses may be cross-examined, evidence may be 
 produced to rebut their testimony, evidence as to charac- 
 ter may be offered, and the court may be addressed in ex- 
 tenuation of the offense or in mitigation of punishment. 
 
 5. When the accused pleads "guilty" and, without 
 any evidence being introduced, makes a statement in- 
 consistent with his plea, the statement and plea will be 
 considered together, and if guilt is not conclusively 
 admitted, the court will direct the entry of a plea of 
 "not guilty," and proceed to try the case on the general 
 issue thus made. 
 
 6. If the prisoner, from obstinacy or deliberate de- 
 sign, stands mute, or answers foreign to the purpose, 
 the court will proceed to trial and judgment as if the 
 prisoner had pleaded "not guilty."^ 
 
 7. Instead of pleading to the general issue, the ac- 
 cused may interpose a special ple^ either to the jurisdic- 
 tion, in abatement, or in bar of trial,* or he may make 
 either of these special pleas to any specification, pre- 
 senting reasons why he should not be tried on it. The 
 
 1 See page 47, imst. 
 
 2G. O.No.91, A.G. 0.,1881,audCir. (;6,W. D.,1908. ' sggth A. W. 
 * As to plea of autrefois ac(/uU in a case iuvolviug both a civil and a mili- 
 tary offense, see Digest Opiu. J. A. G., §§ 306, 103(3, and notes. 
 50063 3 
 
34 ATTENDANCE OF WITNESSES. 
 
 burden of substantiating such pleas rests on the ac- 
 cused. Both sides should be heard, and the proceed- 
 ings under the plea recorded. If the plea in bar of 
 trial be found valid, the court will report its decision 
 to the convening authority and await further instruc- 
 tions; if, by the special plea, an issue is made, the 
 court is empowered to sustain or overrule the plea;^ 
 when a special plea is made and overruled, the accused 
 will be required to plead to the general issue. 
 
 8. A second enlistment in the service of the United 
 States, when the first has not been fulfilled, is not void, 
 but voidable at the option of the United States only; so 
 that a man who, whilst serving under such a second 
 enlistment, commits an offense, can not successfully 
 plead the fraudulent character of his second enlistment 
 in bar of trial. Paragraph 132, Army Regulations, re- 
 lates to soldiers 7iof charged with crime who are dis- 
 covered to be deserters from the Navy or Marine Corps, 
 and does not interpose any obstacle to trial by court- 
 martial for offenses committed while in the military 
 service. 
 
 9. The statute of Umitation (103d Article of War) is 
 not prohibitory as to jurisdiction,- but is properly a 
 matter of defense, which, to be effective, must be 
 pleaded and proved, or, in some express manner, taken 
 advantage of on the evidence. 
 
 ATTENDANCE OF WITNESSES. 
 
 Sec. I. "The judge-advocate will summon the neces- 
 sary witnesses for the trial, but will not summon wit- 
 nesses at the expense of the Government without the 
 order of the court unless satisfied that their testimony 
 is material and necessary."^ 
 
 2. The accused is, in general, entitled to have all the 
 material witnesses for his defense summoned; except 
 when their testimony would be merely cumulative, and 
 evidently add nothing to the strength of his case. As 
 
 ^See page 20, Sec. V, ante; also, page 155, uote 2, pod. 
 2See Digest Opiu. J. A. G., §320, and note. 
 
 ^Par. 957, A. It. All witnesses for both the prosecution uiid the defense 
 are summoned or subpoenaed by the judge-advocate. 
 
ATTENDANCE OF WITNESSES. 35 
 
 far as possible, he should be allowed a full and free de- 
 fense, as the least denial to him of any proper facility, 
 opportunity, or latitude for it may serve to defeat the 
 ends of justice. 
 
 Sec. II. To procure the attendance of witnesses sta- 
 tioned or residing ivitJdn the State, Territory, or Dis- 
 trict in which the court is ordered to sit, and to compel 
 them to testify, etc., the judge-advocate will proceed as 
 follows: 
 
 1. Judge-advocates of courts-martial will, whenever 
 it is possible, send subpoenas through military channels.^ 
 In case a civilian witness duly subpoenaed before a gen- 
 eral court-martial refuses to appear or qualify as a wit- 
 ness, or to testify or produce documentary evidence, as 
 required by law, he will at once be tendered or paid by 
 the nearest paymaster one day's fees and mileage for 
 the journeys to and from the court, and will thereupon 
 be again called upon to comply with the requirements 
 of the law. The fees and mileage of civilian witnesses 
 residing beyond the limits of the State, Territory, or 
 District in which the court-martial is held will not be 
 paid in advance, as such witnesses can not be punished 
 if they refuse to obey the summons. - 
 
 2. If the desired witness is a civilian, living near the 
 post where the court is convened, duplicate subpoenas" 
 will be prepared, one of which will be served upon the 
 witness by the judge-advocate or by any person in- 
 structed by him ; if the residence of the witness wanted 
 is not near the post, but still within the State, etc., the 
 judge-advocate will send the duplicate subpcenas direct 
 to the convening authority, requesting service of the 
 same. 
 
 3. Service on a civilian witness is made, under court- 
 martial practice, by a personal delivery of the subpoena 
 to the witness; and proof of service by returning the 
 
 iPar. 958, A. R. 
 
 2 See act of Congress approved March 2, 1901, page ISljjjos^, aud par, 
 1001, A. K. See, also, page ^9., post, note 1. 
 3 For forms, see pages 172 and 173, post. 
 
36 ATTENDANCE OF WITNESSES. 
 
 duplicate original to the judge-advocate, indorsed as ex- 
 plained in the form published on page 178, post. Any 
 person may serve the subpoena,' bnt the service rmist be 
 personal. 
 
 4. Should a civilian witness fail to appear ^ after due 
 and reasonable notice, after having been served with a 
 subpoena, the judge-advocate has power to issue the 
 like process to compel him to appear and testify which 
 courts of criminal jurisdiction within the State, Ter- 
 ritory, or District where such court shall be ordered to 
 sit may lawfully issue. -^ This power also includes the 
 power to execute such process through an officer, who 
 shall be specially charged with its execution.-* 
 
 5. Whenever it becomes necessary to enforce the at- 
 tendance of a civilian witness, as provided in the pre- 
 ceding paragraph, the judge-advocate will issue a 
 warrant of attachment^ directing and delivering it for 
 execution to an officer designated by the department 
 commander for the purpose. He will also deliver to 
 this officer the subpoena, indorsed with affidavit of 
 service (to be returned when the warrant is executed), 
 and a certified copy of the order appointing the court- 
 martial. 
 
 6. In executing such process it is lawful to use only 
 such force as may be necessary to bring the witness 
 before the court. Whenever force is actually required, 
 the post commander nearest witness's residence will 
 furnish a military detail sufficient to execute the pro- 
 cess. "^ 
 
 7. If, in executing this legal process, the officer de- 
 tailed for that purpose should be served with a writ of 
 habeas corpus from any United States court, or by a 
 United States judge, for the production of the witness, 
 
 iPar. 957, A. K. 
 
 2 Such witness may also be prosecuted under act uf Congress approved 
 Ma'-ch 2, 1901; see page 131, ^wsf. 
 3 Sec. 1202, K. S. 
 412 Opins. Atty. Gen., r,{)\. 
 ■> For form, see page 174, ^lost. 
 '•'Par. 9G0, A. U. 
 
ATTENDANCE OF WITNESSES. 37 
 
 the writ will be promptly obeyed and "the person 
 alleged to be illegally restrained of his liberty will be 
 taken before the court from which the writ has issued, 
 and a return made setting forth the reasons for his 
 restraint. The officer upon whom such a writ is served 
 will at once report, by telegraph, the fact of such service 
 direct to The Adjutant-General of the Army and to the 
 commanding general of the department." ^ 
 
 8. If , however, the writ of habeas corpus is issued by 
 any State court (or a State judge) it will be the officer's 
 duty to make respectful return, in writing, informing 
 the court that he holds the person named in the writ by 
 authority of the United States pursuant to a warrant of 
 attachment issued under section 1202 of the Revised 
 Statutes of the United States by a judge-advocate of a 
 lawfully convened court-martial, and that the Supreme 
 Court of the United States has decided that State courts 
 and judges are without jurisdiction in such cases. - 
 
 9. After having made the above return, it is the duty 
 of the officer to obey the process of the United States, 
 to hold the prisoner in custody under it, and to refuse 
 obedience to the mandate or process of any other gov- 
 ernment. And, consequently, it is his duty not to take 
 the prisoner, nor suffer him to be taken, before a State 
 judge or court upon a writ of habeas corpus issued 
 under State authority.^ 
 
 10. " Every person not belonging to the Army of the 
 United States who, being duly subpoenaed to appear as 
 a witness before a general court-martial of the Army, 
 willfully neglects or refuses to appear, or refuses to 
 qualify as a witness or to testify or produce documentary 
 evidence which such person may have been legally sub- 
 poenaed to produce, shall be deemed guilty of a misde- 
 meanor, for which such person shall be punished on 
 information in the district court of the United States; 
 and it shall be the duty of the United States district 
 
 1 Par. 1009, A. R. For general form for return, see page 190, post. 
 
 2 Pars. 1007 and 1008, A. R. Fur form for return, see page 192, post. 
 
 3 See cases cited in " Form B," page 192, pvat. 
 
38 ATTENDANCE OF WITNESSES. 
 
 attorney, on the certification of the facts to him by the 
 general court-martial, to file an information against 
 and prosecute the person so offending, and the punish- 
 ment of such person, on conviction, shall be a fine of 
 not more than five hundred dollars or imprisonment not 
 to exceed six months, or both, at the discretion of the 
 court: Provided, That this shall not apply to persons 
 residing beyond the State, Territory, or District in 
 which such general court-martial is held, and that the 
 fees of such witness, and his mileage at the rates pro- 
 vided for witnesses in the United States district court 
 for said State, Territory, or District shall be duly 
 paid or tendered said witness, such amounts to be paid 
 by the Pay Department of the Army out of the appro- 
 priation for compensation of witnesses: Provided, That 
 no witness shall be compelled to incriminate himself or 
 to answer any questions which may tend to incriminate 
 or degrade him." ^ 
 
 11. If the attendance of a military witness, stationed 
 at the post where the court is convened, is desired, and 
 a formal notification is necessary, a summons in the 
 form set out on page 169, posf, will be transmitted to the 
 witness through the post commander. If the military 
 witness is stationed at another post the department 
 commander will be requested to order the witness to 
 attend. 
 
 12. "Every person not belonging to the Army of the 
 United States,- who, in the Philippine Islands, being 
 duly subpoenaed to appear therein as a witness before a 
 general court-martial of said Army, willfully neglects 
 or refuses to appear, or refuses to qualify as a witness 
 or to testify or produce documentary evidence which 
 
 lAct of Congress approved March 2, 1901, sec. 1, page 131, jmftt. If an 
 officer who is charged with serving a subpo'na pays the necessary fees and 
 mileage to a witness, taking a receipt therefor, he is entitled to reimburse- 
 ment. (Cir. 38, A. G.0.,196l.) 
 
 2 Employees of the civil government of the Philippine Islands, paid from 
 insular funds of the Islands, are held not to be in the employ of the Uuited 
 States. (Dec. Compt. Treas., Aug. 20, 1902; Cir. 45, A. G. 0., 1902.) 
 
ATTENDANCE OF WITNESSES. 39 
 
 such person may have been legally subpoenaed to pro- 
 duce, shall be punished by a fine of not more than five 
 hundred dollars, United States currency, or imprison- 
 ment not to exceed six months, or both, at the discretion 
 of the court, and it shall be the duty of the proper 
 fiscal or prosecuting officer, on the certification of the 
 facts to him by the general court-martial, to file in the 
 proper court a complaint against and prosecute the per- 
 son so offending: Provided, That one dollar and fifty 
 cents, United States currency, for each day's attend- 
 ance, and five cents. United States currency, per mile 
 for going from his place of residence to the place of 
 trial or hearing and five cents per mile for returning, 
 shall be duly tendered to said witness: Provided fur- 
 ther, That no witness shall be compelled to incriminate 
 himself or to answer any question which may tend to 
 incriminate him." ^ 
 
 13. With the consent of both parties the deposition of a 
 military or civilian witness residing or stationed within 
 the State, Territory, or District in which the court sits 
 may be taken and read in evidence. 
 
 Sec. III. To procure the testimony of ivitnesses sta- 
 tioned or residing without the State, etc., the following 
 practice will he observed: 
 
 1. A writ of attachment does not run beyond the 
 State, Territory, or District in which the court-martial 
 sits. The testimony of civilian witnesses residing be- 
 yond such State, Territory, or District will ordinarily 
 be taken by deposition under the 91st Article of War; 
 but this can not be done when it is necessary that they 
 should be confronted with the accused. In such cases 
 their testimony can only be taken on their voluntarily 
 appearing before the court. 
 
 The testimony of military witnesses stationed or re- 
 siding beyond"^ the State, Territory, or District in which 
 the court sits will also ordinarily be taken by deposition. 
 
 1 Act of the Philippine Commission (No. 1130), dated April 28, 1904; see 
 also Cir 45, A. G. 0., 1902. 
 - See page 175, uote 2, post. 
 
40 ATTENDANCE OF WITNESSES. 
 
 2. The method of procedure to obtain a deposition ^ 
 is as follows: 
 
 The party, prosecutor or defendant, desiring the depo- 
 sition, submits to the court a list of interrogatories to 
 be propounded to the absent witness; the opposite party 
 then prepares and submits a list of cross-interrogatories, 
 a reasonable time being allowed for this purpose; redi- 
 rect and recross-interrogatories are added, if desired; 
 finally the court, having assented to the interrogatories 
 thus submitted, adds such as, in its judgment, may be 
 necessary to elucidate the whole of the witn^ss's testi- 
 mony. 
 
 The interrogatories having been accepted by the court, 
 the judge-advocate will, if the witness is a civilian, pre- 
 pare duplicate subpoenas"^ requiring the witness to 
 appear in person, at a time and place to be fixed by the 
 officer, military or civil, who is to take the deposition. 
 If the name of this officer is not known, the space for it 
 will be left blank. 
 
 The judge-advocate will then send the interrogatories 
 and subpoenas and proper account for civilian witness^ 
 to the commanding general of the department within 
 the territorial limits of which the witness resides, with 
 request that the deposition be secured, the required data 
 supplied in the account for civilian witness, and the 
 post-office address given, so that the account may be 
 certified by the judge-advocate and transmitted to the 
 proper paymaster for payment. In the case of an 
 officer or enlisted man serving at a place excepted from 
 the jurisdiction of a department commander, the inter- 
 rogatories, subpoenas, and account will be forwarded to 
 The Adjutant-General of the Army. 
 
 Depositions may also be taken before the assembling 
 of the court-martial, on interrogatories and cross-inter- 
 rogatories or on reasonable notice, subject to exceptions 
 when read in court. 
 
 3. If the deposition of a military witness is required, 
 subpoenas will not be inclosed with the interrogatories, 
 but the officer before whom the deposition is to be taken, 
 
 1 For form, set; pa^t' l"'^', j»>st. - For form, see page 173, poxt, 
 
 3See forms 13 C and l:i 1!, I'ay Department, pages 178 and \S2, j)ost.. 
 
ATTENDANCE OF WITNESSES. 41 
 
 or the officer who causes it to be taken, will direct the 
 witness to appear at the proper time and place. 
 
 4. Judge-advocates of departments and of courts-mar- 
 tial, and the trial officers of summary courts, are author- 
 ized to administer oaths and take depositions. ^ If none 
 of these officers are available, any other Army officer 
 may be designated to see that the deposition is properly 
 taken; 2 or the deposition may be referred to a notary 
 public, or other civil officer empowered to administer 
 oaths for general purposes (his name and official char- 
 acter being inserted in the designation), with request 
 that he will take the deposition and return it with his 
 certificate that it was duly made and taken under oath. 
 In either case, the oath must be administered and the 
 jurat {i. e. , the certificate that the deposition was ' ' sub- 
 scribed and sworn to ") subscribed by a civil officer em- 
 powered to administer oaths for general purposes. 
 
 5. Persons before whom depositions of civilian wit- 
 nesses are taken for use before courts-martial will be 
 paid the fees allowed by the law of the place where the 
 depositions are taken. ^ 
 
 6. Upon the return of the interrogatories and deposi- 
 tion they will be submitted to the court by the president 
 or judge-advocate. The papers will then be properly 
 marked, appended to the record, and referred to in the 
 proceedings, where all action upon the subject neces- 
 sary for the information of the reviewing authority 
 will be recorded. 
 
 7. Upon the receipt of the deposition, the judge-advo- 
 cate will also complete and sign the ordinary ' ' account 
 for a civilian witness," •* certifying that the witness duly 
 attended as a witness at a certain time and place and 
 duly gave his deposition before a certain official named, 
 and then transmit the account to the proper paymaster 
 with a copy of the order convening the court. 
 
 1 Sec. 4, act of July 27, 1892; see G. 0. 57, A. G. 0., 1892. 
 
 2 An oflficer so designated will, before serving the subpoena, complete it if 
 necessary by inserting the name and official designation of the notary (or 
 other official having authority to administer the oaths), before whom it is 
 to be taken and the date on which and place where it is proposed to take it. 
 When the deposition has been duly taken, he will certify to this fact and 
 transmit it direct to the president of the court. 
 
 3Cir. 12, A. G. 0., 1901. 
 
 * For foi-ms, see pages 178 and 182, post. 
 
42 ATTENDANCE OF WITNESSES. 
 
 8. In capital cases (i. e., those in which the offense is 
 punishable by death )i or in cases where the judge- 
 advocate can certify " that the interests of justice de- 
 mand that the witness shall testify in the presence of 
 the court," the regular subpoenas will be made out by 
 the judge-advocate, certified to as above, if necessary, 
 and transmitted to the department commander of the 
 department where the court is convened, with a request 
 that they be duly served on the witness, if a civilian. 
 If the witness is in the military service the department 
 commander will be requested to order him, or cause 
 him to be ordered, to attend before the court. 
 
 9. "An officer or enlisted man who receives a summons 
 or subpoena to attend as a witness before any military 
 court, board, civil court, or other competent tribunal, 
 which is sitting beyond the limits of the department 
 where he is serving, will, before starting to obey the 
 same, forward it through the proper channel to his 
 department commander, that necessary orders, or au- 
 thority to obey such process, may be given. In urgent 
 cases, or when the public interest would be liable to 
 suffer by delay, a post commander may authorize im- 
 mediate departure, reporting his action and the reasons 
 therefor to the department commander." ^ 
 
 10. " Officers and enlisted men reporting as witnesses 
 before a civil court should receive from the civil 
 authorities the necessary expenses incurred in travel 
 and attendance; neither mileage nor travel allowances 
 will be paid in such cases by the War Department. 
 If, however, it is absolutely necessary to furnish them 
 transportation in kind to enable them . to appear, as 
 witnesses for the Government, before a civil court 
 of the United States, an account of such expenditure, 
 together with the evidence that they were properly sub- 
 poenaed and did attend the court, will be forwarded to 
 the War Department for presentation to the Department 
 of Justice. Officers providing such transportation will 
 notify the court, or the marshal thereof, that it was fur- 
 nished to enable the witnesses to perform the requisite 
 journeys in obedience to the summons.""' 
 
 1 In time of peace desertiou is not a capital offense. 
 
 2 Par. 959, A. K. ■ild.,lb. 
 
FEES OF WITNESSES. 43 
 
 FEES OF AVITNESSES.i 
 
 1. A civilian witnesn before a court-martial is entitled, 
 upon his discharge, to receive from the judge-advocate- 
 a certificate, setting forth the fact of his having been 
 summoned as a witness in the case, and the number of 
 days of his attendance in that capacity before the court. 
 To entitle a witness to the payment of fees, it is not 
 essential that he should produce a formal subpoena, ad- 
 dressed to and complied with by him, or that he should 
 have been formally summoned in the case. A strict 
 observance, however, of section I, page 34, ante, would 
 require the issue of formal subpoenas to witnesses on 
 both sides, and it is the better practice for the judge- 
 advocate to cause such to be served in each instance.^ 
 
 2. " Civilians in the employ of the Government when 
 traveling upon summons as witnesses before military 
 courts are entitled to transportation in kind from their 
 place of residence to the place where the court is in 
 session and return. If no transportation be furnished, 
 they are entitled to reimbursement of the cost of travel 
 actually performed by the shortest usually traveled 
 route, including transfers to and from railway stations, 
 at rates not exceeding 50 cents for each transfer, and 
 the cost of a double berth in a sleeping car or steamer 
 when an extra charge is made therefor. They are also 
 entitled to reimbursement of the actual cost of meals 
 and rooms at a rate not exceeding $3 per day for each 
 day actually and unavoidably consumed in travel or in 
 attendance upon the court under the order or summons. 
 No allowance will be made to them when attendance 
 upon court does not require them to leave their sta- 
 tions."^ 
 
 1 When the employment of experts is necessary in a trial by court-martial, 
 the judge-advocate will apply to the Secretary of War for authority to em- 
 ploy them and for a decision as to the compensation to be paid them. 
 
 2 Or the summary court officer if the witness be before a summary court. 
 
 3 A civilian witness must be duly subpoenaed and tendered fees under the 
 act of Congress approved March 2, 1901, in order to maintain the prosecu- 
 tion authorized by that act. See page 37, par. 10, ante. 
 
 ■iPar. yyy, a. k. 
 
44 FEES OF WITNESSES. 
 
 'i. "A fnvilian, not in Govfirnmerit fimx>loy, duly Hum- 
 TMoriod to Hppoar aH a witnosH y>oforo a military court or 
 at a i>laco whoro liis dojiosition in \a> >>o taken for uhc 
 \><ii'or(i Huch court, will receive $1 .50 for each day of IiIh 
 actual atU^ndance before Huch court or for the i^urpose 
 of haviij/^ hiH dfjpoHition taken, and 5 centn a mile for 
 ^fjin^ from hiH i)laceof renidenr^e to the jAaceof trial or 
 of the takin;^ of hiH deiJOHition, and o centH a mile for 
 returnin;^, except a.s followH:' 
 
 "fa) In Porto Kico and Cuba, he will receive $1.50 a 
 day while in attendance as above ntaUid, and fifteen 
 centH for each mile neccHHarily traveled over Htage line 
 or by private conveyance, and 10 cents for each mile 
 over any railway or HteamHhij) line. 
 
 "(b) in Alaska, (;ast of the one hundred and forty-firHt 
 degree of west longitude, he will receive 9^2 a day whil*; 
 in attendanf;e aH above Htated, and 10 cents a mile, and 
 went of Haid d<;gree .84 a day and 15 cents a mile. 
 
 "(c) hi the States of Wyoming, Montana, Washington, 
 Oregon, (Jalifornia, Nevada, Idaho, (Colorado, and Utah, 
 and in tin; Territories of New Mexico and Arizona, he 
 will re<-eive .$'} a day for the time of actual attendanr^e 
 an above stated, and for the time necessarily occux^ed 
 in going to and returning frrjm 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 stearnshij)."^ 
 
 4. "The charges for return joumeysof witnesses will 
 bf} made upon the basis of thfj actual charges allowed 
 for travel to thfj court, and the entire account thus 
 cf>mplet<;d will be paid upondiscliarge from attendance, 
 without waiting for completion of return travel."'* 
 
 5. "The items of exi)enditure authorized in x^^ra- 
 grai)hs 'M) and 1000 (Army Regulations) will be set 
 forth in detail and madf; a i)art of eac^h voucher for 
 nsimbursement. No other items will bo allowed. The 
 (certificate of the judge -advocate will bo evidence of th<j 
 fac,t and x>e'riod of attendancf; and will be made upon the 
 voucher. ' ' * The correctness of the items as Uj civilians 
 
 I Th'tH<! riiU-M apply t<. th*; I'hilippifi<; fHlanrlH. H<-o CIr. 4r, A. 0, O., HK)2. 
 
 '^Vnv. UJOO, a. It. A clviliafi not in (i(i\uruini:ut «anpl(>y, wlicri fiirnlMh<-<l 
 »,tatiM|iortatiori on InitiMpoi t or otlior (;oviTnni<:nt con vriytinc*;, in •■nfillcd to 
 rn.\\2 \>iv v.ftd of r, rcntn per tnil<^ f.Minal to '2.Kr.7 v.i-utM per mile). (<'onip 
 I>i-<., AiiK. '^", \:)iri, j.iil.lihiicd in CAr. i',, A. C. O., I!)02.) 
 
 ■Vnr. 1002, A. II. •»/'/., \W-''. 
 
KXAMINAIION Oir W I'I'N KSSMS. 45 
 
 in Govcirniiuait employ will bo uttcfstcMl by 1.1m afliduvit 
 of tho wiiiicas, to bo luudo vvlion ])nicticablo Ixdonj Uh) 
 judge-advoc-Jito.' 
 
 7. " Comix iTirtatioTi lo (nviliaiis in or oiil. of (Jovoru- 
 mentmiiploy for attondaiico upon (-ivil coiirtH is ])aya,bln 
 by tlio civil aiil,lioriti«vs. " ' 
 
 H. Tbo f(!(ia of civilian witiUiSScH, and t,h(( milcaKo of 
 wiincHsoH and foes of civil of(i(U)rs taking' dcpo.sitions, 
 will b(! paid by tbo Pay Dcparlmont. 
 
 EXAMINATION <>!' W ITN i;ssi<:s. 
 
 1. Witnesses are usually cxaniincd <i fuirt from cacli 
 other, no witness bcinj^ allowed to b»^ ])resent during the 
 examination of anotlun- who is callinl befoi-(! him. lint 
 this rnlo is not inllexible; it is in modern practici? snb- 
 j((ct to the discri^tion of the court, nor is it (iver so rig 
 idly observed as to (exclude th<^ tcistimony of a pisrson who 
 has beciii i)res(ait at tlm examination of other witnessc^s. 
 
 2. Courts-martial follow in gcsnc^ral, so far as apposite, 
 the common-law rules of evidiiuco-' as obsiTVcid by tin* 
 Unitiid Stat<!S courts in criminal cas(is, but they are not 
 re(iuir(ul by statute to do so, and a ccirtain latitude in 
 the introduction of (evidence and the examination of 
 witn(!sses, l)y an avoidance of tcu-hnical and restrictive 
 rules, is permissible when it is in the interest of the 
 administration of military justice;, but no witness shall 
 be comixdled to incriminate himscilf or to answer any 
 (pieistion which may tend to incriminate or degrade him. ' 
 The ac(;used at his own reciuest, but not otlK^rwisi!, is 
 comi)et(mt to testify. His failure to mak(5 such a r<'- 
 <iu<!st shall not cnnite any presumption against him.'^ 
 
 U. While the i)rop(!r and usual order and scMjuenete t)f 
 examination of witnesses is outlined in the " form for 
 rcicord of a Gemiral ('ourt-Martial," page 11(5, j)ost, the 
 
 1 I'm. 1()(«, A. K. -/</., 1001. 
 
 •'Copii's (if iiii.v iccor'clH or piijicin in IIki War l)i'|iai liiiciit ur iiiiy (if iln 
 ItiircaiiN, (I I' III I he licu(l(|iiiii'lci'H (if ill! a liny, i'<ii'|ih, (li\ isidii, (ir lii'i);a(l(', or (if 
 a t<*n'it()i'ial iliviMion (ir (li'|iarliii(wit,, if aiitli('iili( iitcd \i\ tin- iiniiicNMitil Mlain|i 
 (.f Mi« liiiicau or (.lllco of tint War l)(|.arliiH-nl, .ir of U.clicadiiuni Iciw has in^ 
 ciiMfoil.v of tlicoriuiiialH (»■.;/.," Tin' Adjnlanl -(JciiciMi'hOllicc, Ollicial ( '(i|i.v "), 
 may hit ailinitlol in cviilcnco (-(inally snIIIi tint (iiJKiiials llicroof hcfoi c' aii> 
 military coiiif, (-oinini.SHion or hoani, or in any inliniiiiMlrali vc tnaltii iiinici 
 Mitt War Dciiartim-nl. ((J. ). I'.m. A. ('.. O, MtOH.) Am Io (liH|.oHili(in <<< 
 oriKitials loaned for nut-, hcc (i. O. :<2, VV. I)., Ili0:i. 
 
 '.\(l (if <'iin;4lCHH a|ililcivcd Rlai(h 2, I'Jdl , hcc. I, pane \:\\,i„,hI. Sec alM» 
 Cir. II, \V. !>., I'.KW. "iJO l. S. SdilM.. :{0. 
 
46 FINDINGS. 
 
 court may, in the interest of truth and justice, call or 
 recall witnesses, or permit their recall at any stage of 
 the proceedings; it may permit material testimony to 
 be introduced by either party quite out of its regular 
 order and place, or permit a case once closed by either 
 or both sides to be reopened for the introduction of 
 testimony previously omitted, if convinced that such 
 testimony is so material that its omission would leave 
 the investigation incomplete. In all such cases both 
 ])arties must be present, and any testimony thus received 
 would be subject to cross-examination and rebuttal by 
 the party to whom it may be adverse. 
 
 4. Affidavits taken ex parte and not as depositions 
 under the 91st Article of War are in no case admissible 
 as evidence unless expressly consented to by the accused 
 with full knowledge of his rights. 
 
 5. The accused, in addition to his own testimony, or 
 where he has not testified, may make a verbal or written 
 statement as to the case. The statement should not be 
 sworn to, and if sworn to should not be received as evi- 
 dence by the court. 
 
 FINDINGS. 
 
 1. The findings of the court will be governed by the 
 evidence considered in connection with the pleas. The 
 finding upon the charge should be consistent with that 
 upon the specification. 
 
 2. The accused may be found guilty of parts of the speci - 
 fication , not guilty of the remainder , and then , if the speci- 
 fication still supports the charge, guilty of the charge. 
 
 3. If the evidence proves the commission of an offense 
 less in degree than that specified, yet kindred to it, the 
 court may except words of the specification, substitute 
 others instead, pronounce the guilt and innocence of the 
 substituted and excepted words, respectively, and then 
 find the accused not guilty of the charge but guilty of 
 the lesser kindred offense. Of this form of verdict the 
 most familiar is the finding of guilty of absence with- 
 out leave under a charge of desertion. In such a case, 
 in its finding of guilty upon the specification, the court 
 should in terms except the words " did desert, " and " in 
 desertion," and substitute therefor, respectively, the 
 words "did absent himself without leave from," and 
 
PREVIOUS CONVICTIONS. 
 
 47 
 
 "without leave." The finding npon the charge should 
 regularly be "not guilty, but guilty of absence without 
 leave, in violation of the 32d Article of War." ' 
 
 4. Another legal and now common form of finding is 
 where an accused is charged with a specific offense, 
 made punishable by an Article of War, other than the 
 62d, and the court is of the opinion that, while the 
 material allegations in the specification are proved, they 
 do not fully sustain the charge as laid, but do clearly 
 establish a breach of military discipline; in this case the 
 accused may properly be found guilty of the specifica- 
 tion, and not guilty of the charge, but guilty of " con- 
 duct to the prejudice of good order and militar 
 discipluie.'" It should be remembered, however, that 
 the court can not in its finding legally substitute the 62d 
 Article of War for any other, unless the proof fails to 
 substantiate the specification under the original charge. 
 The reverse of this form of finding has never been sanc- 
 tioned. Thus where a charge is laid under the general 
 article, a finding under any other article, or, where a 
 charge is laid under a specific article, a finding under 
 any other specific article, would be illegal. 
 
 5. In a case .of virtual acquittal, to use the term 
 "guilty " is improper; the correct expression is, "find 
 the facts as charged, but attach no criminality thereto." 
 "Guilty" should be employed only when the accused 
 has been convicted of a crime deserving punishment. 
 
 PREVIOUS COJfVICTIONS.2 
 
 1. Whenever a soldier is convicted of an offense for 
 which a discretionary punishment is authorized, the 
 
 1 It i§ beyond the power of a reviewing officer to change a finding by his 
 own action. Thus where, in a case of desertion, the reviewing authority 
 approved "so much only of the finding of guilty of desertion as convicted 
 the accused of absence without leave," it was held that he thus substituted 
 a finding of his owu for that of the court, and that his action was unau- 
 thorized. 
 
 2 By "previous conviction" is meant a conviction where the sentence 
 has been approved by competent authority. This refers to all trials except 
 where the only officer present sits as a summary court, when no approval 
 of the sentence is required by law. 
 
48 PREVIOUS CONVICTIONS. 
 
 court will receive evidence of previous convictions, If 
 there be any; sucli evidence being limited, except as 
 provided in sec. 5, page 69, post, to previous convictions 
 by courts-martial ^ of an offense or offenses within one 
 year preceding the date of any offense charged and dur- 
 ing the current enlistment. General, regimental, and 
 garrison courts-martial will, after a finding of guilty, 
 be opened for the purpose of ascertaining whether there 
 is such evidence and, if so, of receiving it."^ These courts 
 will consider only such evidence of previous convictions 
 as is referred to them by the convening authority. 
 
 2. Previous convictions by courts-martial must be 
 proved by the records of previous trials and convictions, 
 or by duly authenticated copies of such records, or by 
 duly authenticated copies of the orders promulgating 
 such trials.^ The usual evidence of previous convictions 
 by summary court is the copy of a summary court 
 record furnished to company and other commanders, as 
 required by paragraph 965, Army Regulations, or one 
 furnished for the purpose and- certified to be a true 
 copy by the commanding oflS.cer or adjutant (at the 
 headquarters where the original record of the summary 
 court which tried the case is kept). When the proof 
 produced is the copy furnished to the company or other 
 commander, it will be returned to him and a copy of it 
 attached to the record.'* 
 
 3. The previous convictions are not limited to those 
 for offenses similar to the one for which the accused is 
 on trial. The object is " to see if the prisoner is an old 
 offender, and therefore less entitled to leniency than if 
 on trial for his first offense.'" This information might 
 not be fully obtained if evidence of previous convictions 
 of similar offenses only were laid before the court. It 
 has no bearing upon the question of guilt of the par- 
 ticular charge on trial, but only upon the amount and 
 
 iThe introduction of evidence of convictions by civil courts is not 
 iiiitliorized. 
 
 - Executive order of Nov. 25, 1908, pai^e 58, Art. 1 IT, sec. 2, post. 
 
 3 /(/., page 58, Art. Ill, sec I, post. 
 
 •*Par. 971, A. li., iiml "Instructions" un Summary Court IJecord, jmge 
 160, i)ost. 
 
PUNISHMENT. 49 
 
 kind of punishment to be awarded, and to this end it is 
 proper that all previous convictions should be known. 
 
 PUXISIIMENT. 
 
 1. Punishment, under the Articles of War, is either 
 fixed or is left to the discretion of a court-martial. If 
 the punishment is prescribed in the article violated, any 
 other punishment than that prescribed is illegal. Before 
 pronouncing sentence, the court should, therefore, in 
 case of any uncertainty, examine the article violated to 
 see what punishment may be legally awarded, and in 
 awarding punishment it should be remembered that 
 the proper amount of punishment is the least by which 
 discipline can be efficiently maintained. . 
 
 2. For officers, the legal punishments by courts- 
 martial, depending on the nature of the offense, are 
 death, dismissal, suspension from rank, command, or 
 duty, with or without loss of pay or part of pay, loss of 
 rank, imprisonment, fine or forfeiture of pay, repri- 
 mand, and confinement to limits of post or reservation. 
 
 3. For soldiers, the legal punishments, depending on 
 the character of the offense and the jurisdiction of the 
 court, are, death, confinement,^ confinement on bread- 
 and- water diet, solitary confinement, hard labor, ball 
 and chain, forfeiture of pay and allowances, dishonor- 
 able discharge from service,- for first-class privates re- 
 duction to second-class privates, and reprimand: for 
 noncommissioned officers, reduction to the ranks also,^ 
 and for '"candidates for promotion,"" deprivation of all 
 rights and privileges arising from a certificate of 
 eligibility.^ 
 
 4. "No person in the military service shall be pun- 
 ished by flogging, or by branding, marking, or tattooing 
 on the body."'^ 
 
 1 Confinement without hard labor should never be imposed. 
 
 2 A dishonorable discharge is an entire expulsion from the Army and 
 covers all unexpired enlistments. 
 
 3 " Post noncommissioned staff oflficers and hospital sergeants (1st class), 
 though liable to discharge for inefficienc\' or misconduct, will not be re- 
 duced." (Pars. 102 and 1426, A. R.) 
 
 4 Act of July 30, 1892; see G. 0. 79, A. G. 0., 1892. 
 6 98th A. W. 
 
 6096? 1 
 
50 PUNISHMENT. 
 
 5. Military prisoners will not be punished by being 
 required to carry a heavy log. Some other punishment 
 can be found equally effective and not open to the 
 objections urged against this method. 
 
 6. Punishment by ball and chain will be imposed only 
 in extreme cases. ^ 
 
 7. "Sentences imposing tours of guard duty are for- 
 bidden.'"- 
 
 8. Solitary confinement, or confinement on bread-and- 
 water diet, shall not exceed fourteen days at a time, nor 
 be again enforced until a period of fourteen days has 
 elapsed. Nor shall such confinement exceed eighty- four 
 days in any one year.-^ 
 
 9. A court-martial can direct a forfeiture only in favor 
 of the United States, and can not assign the pay of a 
 soldier to any other person; nor can a soldier be required 
 to receipt for money paid without his consent. 
 
 10. If a soldier be brought to trial for absence without 
 leave and convicted, or for desertion and is convicted 
 of absence without leave only, the soldier will be 
 charged with the expense of transportation of himself 
 and guard to his proper station. It is not necessary for 
 the court to include this charge in its sentence. The 
 company commander will make the charge without the 
 action of the court. ^ 
 
 11. "If a soldier be brought to trial under a charge 
 of desertion and acquitted, or convicted of absence 
 without leave only, any amount paid as a reward for 
 his arrest will not be stopped against his pay unless, in 
 case of conviction of absence without leave, the sen- 
 tence of the court shall so direct. The sentence in such 
 case should direct the charge to take the form of a stop- 
 page, not a forfeiture, thus allowing the amounts to be 
 credited as a reimbursement." ^ 
 
 1 See page 70, par. 3, post. 3 gee page 60, post. 
 
 '-' Par. 973, A. R. i Par. 126, A. E. 
 
 5 Par. 127, A. R. This paragraph is not affected by tlie order of tlie Presi- 
 dent prescribing the limit of punishment. See page 53, post, note. 
 
LIMITS OF PUNISHMENT. 51 
 
 12. "No person in the military service shall, under 
 the sentence of a court-martial, be punished by confine- 
 ment in a penitentiary, unless the offense of which he 
 may be convicted would, by some statute of the United 
 States, or by some statute of the State, Territory, or Dis- 
 trict in which such offense may be committed, or by 
 the common law, as the same exists in such State, 
 Territory, or District, subject such convict to such 
 punishment." ^ 
 
 13. The 9Tth Article of War limits the discretion of 
 the court only as "to imprisonment in the peniten- 
 tiary, and it has been nowhere provided that the pun- 
 ishment may not in other respects be greater than the 
 civil courts could inflict."- Notwithstanding this, a 
 court-martial should properly consult the statute gov- 
 erning the civil courts, in order to determine a reason- 
 able measure of punishment for the offense. 
 
 14. The most common offenses punishable by confine- 
 ment in a penitentiary are those mentioned in Article 
 60, and robbery, grand larceny, embezzlement, forgery, 
 burglary, arson, mayhem, manslaughter, assault with 
 intent to kill, rape, or assault with intent to commit 
 rape. Any of these offenses, when committed to the 
 prejudice of good order and military discipline, either 
 in time of peace or war, are punishable as stated. 
 
 MAXIMUM LIMITS OF PUXISHMENT.^ 
 
 The act of September 27, 1890, provides: " That when- 
 ever by any of the Articles of War for the government 
 of the Army the punishment on conviction of any mili- 
 
 1 97th A. W. The Philippine Islands are construed to be a Territory within 
 the meaning of the Articles of War. 
 i^ Ex parte Mason, 105 U. S., 696. See G. 0. 61, A. G. 0., 1882. 
 3 These limits apply to the punishment of enlisted men only, 183 U. S., 365. 
 
52 LIMITS OF PUNISHMENT. 
 
 tary offense is left to the discretion of the court-martial, 
 the punishment therefor shall not, in time of peace, be 
 in excess of a limit which the President may prescribe."' 
 
 The last order of the President prescribing limits of 
 punishment is as follows: 
 
 EXECUTIVE ORDER. 
 
 The Executive Order, dated June 12, 1905, establish- 
 ing limits of punishment for enlisted men of the Army, 
 under an act of Congress approved September 27, 1890, 
 and which was published in General Orders, No. 96, 
 War Department, Washington, June 19, 1905, is amended 
 so as to prescribe, for time of peace, as follows:^ 
 
 Article I. 
 
 In all cases of desertion the sentence may include dis- 
 honorable discharge and forfeiture of pay and allow- 
 ances. 
 
 Section 1. Subject to the modifications authorized in 
 section 2 of this article, the maximum limit of the terai 
 of confinement (at hard labor) for desertion committed 
 in time of peace shall be three (3) years. 
 
 Sec. 2. The foregoing limitations are subject to modi- 
 fication under the following conditions: 
 
 (a) The punishment of a deserter may be increased 
 by one year of confinement at hard labor in considera- 
 tion of each previous conviction of desertion. 
 
 (b) The punishment for desertion when joined in by 
 two or more soldiers in the execution of a conspiracy, or 
 for desertion in the presence of an outbreak of Indians 
 or of any unlawful assemblage which the troops may 
 be opposing, shall not exceed dishonorable discharge, 
 forfeiture of all pay and allowances, and confinement 
 at hard labor for five years. 
 
 1 This order is published iu G. O. 204, War Dept., December 15, 1908. 
 
LIMITS OF PUNISHMENT. 
 
 Article II. 
 
 53 
 
 Except as herein otherwise indicated, punishments 
 shall not exceed the limits prescribed in the following 
 table: 
 
 Offenses. 
 
 Limits of punishment. 
 
 Under 17th Article of 
 
 Wae. 
 
 Selling liorsc or arms, or both. 
 
 Selling accouterments or 
 clothing. 
 
 Losing or spoiling horse or 
 arms through neglect. 
 
 Losing or spoiling accouter- 
 ments or clothing through 
 neglect. 
 
 Under 20th Article of 
 War. 
 
 Behaving himself with dis- 
 respect to his commanding 
 officer. 
 
 Under 24th Article of 
 War. 
 
 Refusal to obey or using vio- 
 lence to officer or non- 
 commissioned officer while 
 quelling quarrels or dis- 
 orders. 
 
 Under 32i) Article of 
 War. 
 
 Absence without leave i — 
 For not more than six 
 hours. 
 
 For more than six to 
 twenty-four hours, in- 
 clusive. 
 
 J'ur more than one to 
 ten days, inclusive. 
 
 For more than ten days.. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and confinement at hard 
 labor for three years. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and confinement at hard 
 labor for one year. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 Three months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 Dishonorable discharge, with forfeiture of all 
 pay and allowances and confinement at 
 hard labor for two years. 
 
 Forfeiture of $2; corporal, $3; sergeant, $4; 
 
 1st sergeant or noncommissioned officer of 
 
 higher grade, $5. 
 Forfeiture of $5; corporal, $6; sergeant, $7; 
 
 1st sergeant or noncommissioned officer of 
 
 higher grade, $10. 
 Forfeiture of $10 and ten days' confinement 
 
 at hard labor; for noncommissioned officer, 
 
 reduction in addition thereto. 
 Dishonorable discharge and forfeiture of all 
 
 pay and allowances and six months' con- 
 finement at hard labor. 
 
 1 Upon trial for desertion and conviction of absence without leave only, 
 the court may, in addition to the limit prescribed for such absence, award a 
 stoppage of the amount paid as reward for the apprehension and delivery of 
 the accused to the military authorities. See par. 11, page 50, atUe. 
 
54 
 
 LIMITS OF PUNISHMENT. 
 
 Offenses. 
 
 Limits of punishment. 
 
 Undeu 33d Article of 
 
 
 War. 
 
 
 Failure to repair at the time 
 
 
 fixed, to the place appoint- 
 
 
 ed, etc.— 
 
 
 For reveille or retreat 
 
 Forfeiture of 81; corporal, 8'2; sergeant, S3; 
 
 roll call and 11 p. m. 
 
 1st sergeant, $4. 
 
 inspection. 
 
 
 For assembly of gnard 
 
 
 detail. 
 
 
 For guard mounting (by 
 
 Forfeiture of $5; corporal, $8; sergeant, $10. 
 
 musician detailed for 
 
 
 guard) 
 
 
 For guard mounting (by 
 
 
 musician not detailed 
 
 
 for guard). 
 
 
 For assembly of fatigue 
 
 
 detail. 
 
 
 For parade 
 
 
 For inspection and mus- 
 ter, weekly or monthly 
 
 •Forfeiture of $2; corporal, $3; sergeant, $5. 
 
 inspection. 
 
 
 For target practice 
 
 
 For drill. _■ 
 
 
 For stable duty 
 
 
 For athletic exercises 
 
 
 For post school 
 
 
 Under 38th Article of 
 
 
 War. 
 
 
 Found drunk — 
 
 
 On guard 
 
 Six months' cnnfinempnt nt harit \aUrtr nnr! 
 
 
 forfeiture of $10 per month for the same 
 
 
 period; for noncommissioned officer, reduc- 
 
 
 tion in addition thereto. 
 
 On duty as head cook .__ 
 
 Forfeiture of $20. 
 
 On extra or special duty. 
 
 
 At formation of company 
 
 
 for drill or on drill. 
 
 
 At target practice 
 
 
 At formation of company 
 
 
 for dress parade or on 
 
 
 dress parade. 
 
 
 At reveille or retreat roll 
 
 call. 
 At inspection and mus- 
 
 Forfeiture of $12; for noncommissioned officer 
 reduction and forfeiture of $20. 
 
 ter, weekly or month- 
 
 
 ly inspection. 
 
 
 At inspection of com- 
 
 
 pany guard detail or at 
 
 
 guard mounting. 
 
 
 At stable duty 
 
 
 On fatigue 
 
 
LIMITS OF PUNISHMENT. 
 
 55 
 
 Offenses. 
 
 Uni>kk 40th Article of 
 War. 
 
 Quitting guard. 
 
 Under 51st Article of 
 War. 
 
 lading soldiers to de.sert. 
 
 U.NnER60TH Article OF War. 
 
 Under 62d Article of 
 War. 
 
 Manslaiigliter 
 
 Assault, witli intent to kil 
 
 Burglary 
 
 Forgery 
 
 Perjury 
 
 False swearing 
 
 Robbery 
 
 Larceny or embezzlement of 
 property ^ — 
 
 Of the value of more than 
 $100, 
 
 Of the value of glOO or 
 less and more than $50. 
 
 Of the value of $50 or less 
 and more than $20. 
 
 Of the value of $20 or less 
 
 Limits (if i)unishment. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and one, year's confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and four years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and ten years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and ten years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and seven years' confine- 
 ment at hard labor 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and four years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and four years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and two years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and seven years' confine- 
 ment at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and four years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and three years' confine- 
 ment at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and two years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and one year's confinement 
 at hard labor. 
 
 1 In specifications to charges of larceny or embezzlement the value of the 
 property shall be stated. 
 
56 
 
 LIMITS OF PUNISHMENT. 
 
 Offenses. 
 
 Limits of ixuiislimeiit. 
 
 Under 62d Article of 
 War — Continued. 
 
 Fraudulent enlistment, pro- 
 cured by false representa- 
 tion or concealment of a 
 fact in regard to a prior 
 enlistment or discharge, or 
 in regard to conviction of 
 a civil or military crime. 
 
 Fraudulent enlistment, other 
 cases of. 
 
 Disobedience of orders, in- 
 volving willful defiance of 
 the authority of a noncom- 
 missioned officer in the 
 execution of his office. 
 
 Using threatening or insult- 
 ing language or behaving 
 in an insubordinate man- 
 ner to a noncommissioned 
 officer while in the execu- 
 tion of his office. 
 
 Absence from fatigue duty__. 
 
 Absence from extra or special 
 duty. 
 
 Absence from duty as com- 
 pany, general mess, or hos- 
 pital head cook. 
 
 Introducing liquor into post, 
 camp, or quarters in viola- 
 tion of standing orders. 
 
 Drunkenness at post or in 
 quarters. 
 
 Drunkeuness and disorderly 
 conduct, causing the of- 
 fender's arrest and convic- 
 tion by civil authorities at 
 a place within ten miles of 
 his station. 
 
 Noisy or disorderly conduct 
 in quarters. 
 
 Drunk and disorderly in post 
 or quarters. 
 
 Abuse by noncommissioned 
 officer of his authority over 
 an inferior. 
 
 Noncommissioned officer en- 
 couraging gambling. 
 
 Noncommissioued officer 
 making false report. 
 
 Sentinel allowing a prisoner 
 under his charge to escape 
 through neglect. 
 
 Sentinel willfully suffering 
 prisoner under his charge 
 to escape. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and confinement at hard 
 labor for one year. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and confinement at hard 
 labor for six months. 
 
 Six mouths' confinement at hai'd labor and 
 forfeiture of flO per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in additioo thereto. 
 
 Two months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 Forfeiture of $4; corporal, $5; sergeant, $6. 
 Forfeiture of |4; corporal, $5; sergeant, $6 . 
 
 Forfeiture of $10. 
 
 Forfeiture of $3; for noncommissioned offi- 
 cer, reduction and forfeiture of $5. 
 
 Forfeiture of $3; for noncommissioned offi- 
 cer, reduction and forfeiture of $5. 
 
 Forfeiture of $10 and seven days' confine- 
 ment at hard labor; for noncommissioned 
 officer, reduction and forfeiture of $12. 
 
 Forfeiture of $1; corporal, $7; sergeant, $10. 
 
 Forfeiture of $7; for noncommissioned offi- 
 cer, reduction and forfeiture of $10. 
 
 Reduction, three months' confinement at 
 hard labor, and forfeiture of $10 per month 
 for the same period. 
 
 Reduction and forfeiture of $5. 
 
 Reduction, forfeiture of $8, and ten days' 
 confinement at hard labor. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month' for the same 
 period. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and one year's confine- 
 ment at hard labor. 
 
LIMITS OF PUNISHMENT. 
 
 Offenses. 
 
 Limits of punishment. 
 
 Under 62d Article of 
 War — Continued. 
 
 Sentinel allowing a prisoner 
 under his charge to obtain 
 liquor. 
 
 Sentinel or member of guard 
 drinking liquor with pris- 
 oners. 
 
 Disrespect or affront to a sen- 
 tinel. 
 
 Resisting or disobeying sen- 
 tinel in lawful execution 
 of his duty. 
 
 Lewd or indecent exposure 
 
 of person. 
 Committing nuisance in or 
 
 about quarters. 
 Breach of arrest in quarters.. 
 
 Two months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period. 
 
 Two months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period. 
 
 Two months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 Three months' confinement at hard labor and 
 forfeiture of $10 per mouth for the same 
 period; for noncommissioned officer, reduc- 
 tion in addition thereto. 
 
 One month's confinement at hard labor and 
 forfeiture of $10; for noncommissioned 
 officer, reduction in addition thereto. 
 
 Article III. 
 
 The introduction and use of evidence of previous con- 
 victions is subject to the following regulations: 
 
 Section 1. Such evidence shall be limited, except as 
 provided in section 5 of this article, to previous convic- 
 
 EXECtJTIVE ORDER. 
 
 The Executive Order dated November 25, 1908, establishing limits of 
 punishment for enlisted men of the Army, under Act of Congress approved 
 September 27, 1890, which order was published in General Orders No. 204, 
 War Department, December 15, 1908, is amended by adding thereto maxi- 
 mum limits for certain offenses committed by military prisoners held in 
 confinement under sentences involving dishonorable discharge, as follows: 
 
 Offenses. 
 
 Limits of punishment. 
 
 Under 6M Article of War. 
 («) Attempt to escape 
 
 Six months' confinement at hard 
 labor. 
 
 (6) Conspiring with others to escape.- Six months' confinement at hard 
 
 labor. 
 
 (c) Escape from sentry or guard or 
 from place of confinement or 
 while on parole. 
 
 One year's confinement at hard 
 labor. 
 
 The Vhite House, March 3, 1910. 
 
 WM. H. TAFT. 
 
58 LIMITS OF PUNISHMENT. 
 
 tions by court-martial of an offense or offenses within 
 one year preceding the date of commission of any 
 offense charged and during the current enlistment. 
 These convictions must be proved by the records of 
 previous trials and convictions, or by duly authenticated 
 copies of such records, or by duly authenticated copies 
 of the orders promulgating such trials and convictions. 
 Charges forwarded to the authority competent to order 
 a general court-martial, or submitted to a summary, 
 garrison, or regimental court-martial, must be accom- 
 panied by the proper evidence of previous convictions. 
 
 Sec. 2. Whenever a soldier is convicted of an offense 
 for which a discretionary punishment is authorized, the 
 court will receive evidence of previous convictions (see 
 section 1 of this article) , if there be any. General, regi- 
 mental, and garrison courts-martial will, after a finding 
 of guilty, be opened for the purpose of ascertaining 
 whether there is such evidence and, if so, of receiving it. 
 
 Sec. 3. Previous convictions in connection with in- 
 ferior court offenses. — When a soldier is convicted of an 
 offense the punishment for which under Article II of 
 this order or the custom of the service does not exceed 
 three months' confinement at hard labor and forfeiture 
 of three months' pay, the punishment so authorized 
 may, upon proof of previous convictions (see section 1 
 of this article) be increased one-half for each of such 
 convictions up to the limit of three months' confinement 
 at hard labor and forfeiture of three months' pay, and, 
 for noncommissioned officer or first-class private, re- 
 duction in addition thereto. In case of a soldier whose 
 total length of service does not exceed one year, upon 
 proof of five or more of such convictions, if the total 
 of the sentences, substitutions considered (see Article 
 VII), equals or exceeds forfeiture of $50 or confinement 
 at hard labor for 100 days, the limit of punishment 
 shall be dishonorable discharge, forfeiture of all pay 
 and allowances, and confinement at hard labor for 
 three months ; but in cases where the length of service 
 exceeds one year, the limit of punishment shall be as 
 just stated upon proof of five or more previous convic- 
 tions, whatever the character of the sentences may 
 have been, but if dishonorable discharge be not ad- 
 judged, the limit shall be three months' confinement at 
 hard labor and forfeiture of three months' pay, and, 
 for a noncommissioned officer or first-class private, 
 reduction in addition thereto. 
 
 Sec. 4. Previous convictions in connection with gen- 
 eral court-martial off'enses. — When the conviction is for 
 
LIMITS OF PUNISHMENT. 59 
 
 an offense punishable under Article II of this order or 
 the custom of the service with a greater punishment 
 than three months' confinement at hard labor and for- 
 feiture of three months' pay, such punishment shall not 
 be increased by reason of previous convictions, except 
 as hereinafter specified ; but evidence of those described 
 in section 1 of this article will be submitted to the court 
 to aid it to determine upon the proper measure of pun- 
 ishment subject to the limit already authorized. In the 
 case of a soldier whose total length of service does not 
 exceed one year, upon proof of five or more of such con- 
 victions, if the total of the sentences, substitutions con- 
 sidered (see Article VII) , equals or exceeds forfeiture 
 of $50 or confinement at hard labor for 100 days, the 
 court may, if the authorized limit does not include dis- 
 honorable discharge, adjudge dishonorable discharge 
 and forfeiture of all pay and allowances with the author- 
 ized confinement ; but in cases where the length of service 
 exceeds one year, the limit of punishment shall be as just 
 stated, upon proof of five or more previous convictions, 
 whatever the character of the sentences may have been. 
 
 Sec. 5. On a conviction of desertion evidence of con- 
 victions of previous desertions may also be introduced, 
 irrespective of the enlistment or of the period which 
 may have elapsed since such conviction or convictions. 
 
 Sec. 6. When a noncommissioned officer is convicted 
 of an offense not punishable with reduction, he may, 
 upon proof of one previous conviction within the pre- 
 scribed period (see section 1 of this article) , be sentenced 
 to reduction in addition to the punishment already 
 authorized. 
 
 Sec. 7. First-class privates may be reduced to second- 
 class privates in all cases where for like offenses on the 
 part of noncommissioned officers their reduction in 
 grade is now authorized. 
 
 Article IV. 
 
 When a soldier shall, on one arraignment, be con- 
 victed of two or more offenses, none of which is punish- 
 able under Article II of this order or the custom of the 
 service with dishonorable discharge, but the aggregate 
 term of confinement for which, as specified in said 
 article, may exceed six months, dishonorable discharge 
 with forfeiture of pay and allowances may be awarded 
 in addition to the authorized confinement. 
 
60 SENTENCE. 
 
 Article V. 
 
 If, in any case where the limit of punishment is dis- 
 honorable discharge, forfeiture of ail pay and allow- 
 ances, and confinement at hard labor for a stated 
 number of months, dishonorable discharge be not ad- 
 judged, the limit of forfeiture shall be all pay due and to 
 become due during the prescribed limit of confinement. 
 
 Article VI. 
 
 This order prescribes the maximum limit of punish- 
 ment for the offenses named, and this limit is intended 
 for those cases in which the severest punishment should 
 be awarded. In other cases the punishment should be 
 graded down according to the extenuating circum- 
 stances. Offenses not herein provided for remain pun- 
 ishable as authorized by the Articles of War and the 
 custom of the service. 
 
 Article VII. 
 
 Substitutions for punishment named in Article II of 
 this order are authorized at the discretion of the courts 
 at the following rates : 
 
 Two days' confinement at hard labor for one dollar 
 forfeiture, or the reverse; one day's solitary confine- 
 ment on bread and water diet for two days' confinement 
 at hard labor or for one dollar forfeiture; provided that 
 a noncommissioned officer not sentenced to reduction 
 shall not be subject to confinement;^ and provided that 
 solitary confinement shall not exceed fourteen days at one 
 time, nor be repeated until fourteen days have elapsed, 
 and shall not exceed eighty-four days in one year. 
 
 This order shall become operative in the United States 
 and contiguous Territories thirty days after its date, 
 and elsewhere within the jurisdiction of the United 
 States sixty days from its date. 
 
 THEODORE ROOSEVELT. 
 The White House, 
 
 November 25, 1908. 
 
 \ 
 
 SENTENCE. 2 
 
 1. When in any case the punishment is, by the Arti- 
 cles of War, left to the discretion of the court-martial, 
 
 1 Forfeiture may be substituted for the coufiuenient in tlie prescribed 
 limit. 
 
 2 For forms for sentences see page 170, post. 
 
SENTENCE. 61 
 
 the court will, before proceeding to award the punish- 
 ment, ascertain whether a limit has been fixed by the 
 foregoing executive order. ^ Those members desiring to 
 propose a sentence usually write it on a slip of paper 
 and hand it to the president. The president reads the 
 proposed sentences to the court and the members vote 
 on them in order, beginning with the lightest, until a 
 majority agree upon a sentence. In a case where a pun- 
 ishment is fixed, the members vote upon a sentence 
 awarding this punishment. Upon a death sentence 
 two-thirds of the members must concur (the record so 
 explicitly stating) , and no person can be sentenced to 
 death except in cases expressly mentioned in the Arti- 
 cles of War, or in section 1343, Revised Statutes, as 
 thus punishable. - 
 
 2. Courts -martial in awarding sentences upon mili- 
 tary convicts are restricted to imposing additional con- 
 finement to be served upon the completion or termina- 
 tion of their existing sentences, and will not interfere 
 with the manner of executing such sentences by pre- 
 scribing loss of good-conduct time, solitary confinement, 
 or confinement on bread and water diet, leaving all such 
 punishments to be imposed by the commanding officer 
 as the ordinary means of enforcing discipline.^ 
 
 3. A general court-martial may sentence a soldier to 
 confinement in a penitentiary for any offense which 
 may be thus punished "by some statute of the United 
 States, or by some statute of the State, Territory, or 
 District in which such offense may be committed, or by 
 the common law, as the same exists in such State, Ter- 
 ritory, or District."^ When, therefore, the sentence of 
 such a court-martial prescribes imprisonment, the court 
 ' ' will state therein whether the prisoner shall be con- 
 
 i"Wlieii a sentence of confinement or forfeiture is in excess of the 
 legal limit, the part within the limit is legal and may be executed." 
 (Par. 977, A. R.) 
 
 2 96th A. W. 
 
 3G. 0. 42, W.D., 1910. 
 
 '♦97th A. W. See note 1, page 51, a>i^e. 
 
62 SENTENCE. 
 
 fined in a penitentiary ^ or in some place under military 
 jurisdiction, being guided in its determination by the 
 97tli Article of War. Where from any cause there is a 
 doubt in the mind of the court whether the offense is 
 punishable by penitentiary confinement, such words as 
 'in such place as the reviewing authority may direct' 
 will be used in the sentence." -^ 
 
 4. "When a sentence imposes forfeiture of pay, or 
 of a stated portion thereof, for a certain number of 
 months, it stops for each of those months the amount 
 stated. Thus: 'Ten dollars of monthly pay for one 
 year' would be a stoppage of $120. When the sentence 
 is silent as to the date of commencement of forfeiture of 
 pay, the forfeiture will begin with the period for which 
 pay has accrued since last payment. A forfeiture not 
 limited by the sentence to any particular month or 
 months or other space of time, but expressed simply as 
 a forfeiture of so many months' pay, or of a certain 
 amount of pay, is legally chargeable against the pay 
 due and payable at the next payment, and the balance,, 
 if any, against pay accruing thereafter, until the for- 
 feiture is fully satisfied, but the rate of forfeiture will 
 be the rate of pay the soldier is entitled to receive at 
 the date of the promulgation of the sentence." ^ 
 
 5. "Notwithstanding a sentence contemplates pay- 
 ment of a stated sum to a soldier upon his release from 
 confinement, it can not be made unless there is a suffi- 
 cient balance to his credit after all authorized stoppages 
 are deducted." "* 
 
 6. "A sentence adjudging a dishonorable discharge 
 to take effect at such period during a term of confine- 
 
 1 Unless the laws of the State, Territory, etc., in which the court is con- 
 vened are at hand, it is impossible for the court to determine in all cases 
 whether or not under the 97th Article of War, the offender is punishable 
 by penitentiary confinement. 
 
 2Par. 974, A. R. 
 
 3 Id., 985. 
 
 4/(«., 987. 
 
RECORD OF PR0rEET)TNr4,^. 63 
 
 ment as may be designated by the reviewing authority 
 is illegal."^ 
 
 RECORB OF PROCEEDINGS. 2 
 
 1. Every court-martial will keep an accurate record^ 
 of its proceedings. The record in each case will be 
 complete in itself, and will contain a copy of the order 
 appointing the court. It will be authenticated by the 
 signatures of the president and judge-advocate, the 
 latter affixing his signature to each day's proceedings. 
 Whenever, by reason of the death or disability of the 
 judge-advocate occurring after the court has decided 
 on the sentence, the record can not be authenticated by 
 his signature, it must show that it has been formally 
 approved by the court and must be authenticated by 
 the signature of the president.^ The record must show 
 that the court was organized as the law requires, that 
 the prisoner was asked if he wished to object to any 
 member and his answer to such question, and that the 
 members of the court and the judge-advocate were duly 
 sworn. 
 
 2. The reading of previous proceedings and of testi- 
 mony for approval will be dispensed with, unless for 
 special reason considered necessary by the court, or a 
 witness desires to have certain testimony read for cor- 
 rection. ^ 
 
 3. All orders modifying the detail of the court and 
 issued after its original organization must be incorpo- 
 rated in the record. The record should also note the 
 fact of a new member taking his seat, or a new judge- 
 advocate commencing to officiate, according to orders, 
 on a certain day. (But, see page 29, par. A, ante.) 
 
 iPar. 983, A. R. 
 
 - For form of record for general court-martial see page 146, post. 
 
 3 " When records of trial by general court-martial are written on the type- 
 writer, the copyable ribbon will be used when practicable." (Par. 989, A. R.) 
 
 4 Par. 988, A. R. 
 
 5 0ir. No. 27, A. G. 0.,1897. 
 
64 RECORD OF PROCEEDINGS. 
 
 4. The entire proceedings will be spread npon the 
 record; all orders and rulings of the court; all motions, 
 propositions, objections, arguments, statements, etc., 
 of the judge-advocate or the accused; the testimony of 
 each witness, as nearly as possible in his own language; 
 in short, every feature of the proceedings material to a 
 complete history of the case and to a correct under- 
 standing of every point of the same by the reviewing 
 authority will be recorded at length. Testimony taken 
 before regimental or garrison courts-martial will not be 
 reduced to writing.^ 
 
 5. Where a soldier deserts and, without a discharge 
 from his original term, enlists under a different name, 
 the specifications to the charges of desertion and fraudu- 
 lent enlistment will set forth the offenses under the origi- 
 nal name and organization, and include the other name, 
 etc., under an alias, and the arraignment, findings, sen- 
 tence, and action of the reviewing authority will also 
 give the original name and organization, followed by 
 the other name, etc., under an alias, e. g., Private 
 
 A B , Troop , U. S. Cavalry {original 
 
 name, etc.), alias Private C D , Co. , , 
 
 U. S. Infantry (other name, etc.)^ 
 
 6. Although, since the passage of the act of Congress 
 of July 27, 1892, "to amend the Articles of War, etc.," 
 it is desirable that the record of a court-martial should 
 show that when it sat in closed session the judge- 
 advocate withdrew, it will not vitiate the proceedings if 
 this is not expressly stated. When the record shows 
 that the court was closed, the presumption is that it 
 was closed in accordance with the requirements of law. 
 
 7. The "statement of service " referred to on page 19, 
 paragraph 3, ante, will not be introduced in evidence 
 nor made a part of the record of the trial, but will be 
 considered by the court and shown to the accused, with 
 
 1 Par. 988, A. R. 
 
 2 Cir. No. 76, W. D., 1908. See form for Kf'i'eral order proluulgating trial 
 and sentence, page 188, post. 
 
REVISION OF RECORD. 65 
 
 a view to its correction by the introduction of evidence 
 should it be required. The statement will be forwarded 
 with the record for file in the office of the Judge- Advo- 
 cate-General.^ 
 
 8. A recommendation to clemency will not be em- 
 braced in the body of the sentence; but will be ap- 
 pended to the record after any exhibits referred to in 
 the proceedings. Only those members who concur in 
 a recommendation should sign it. 
 
 REVISION OF RECORD.2 h 
 
 1. "When the record of a court exhibits error in 
 preparation, or seemingly erroneous conclusions, the 
 reviewing authority may reconvene the court for a re 
 consideration of its action, pointing out defects. Should' 
 the court concur in the views submitted, it will proceed 
 by amendment to correct its error, and may modify or 
 completely change its findings. A reopening of the 
 case, by calling or recalling witnesses, is illegal.""^ 
 
 2. An amendment can be made by the court only 
 when duly reconvened for the purpose, and when made 
 must be the act of the court as such.^ A correction made 
 by the president or other member, or by the judge- 
 advocate independently of the court, and by means of 
 an erasure or otherwise, is unauthorized. If omissions 
 in the record are to be supplied, the page and line on 
 which they occur will be stated and the corrections 
 given in full. The original record will not be interlined 
 nor altered in any way. 
 
 REVIEIVING AUTHORITY. 
 
 1. "No sentence of a court-martial shall be carried 
 into execution until the same shall have been approved 
 by the officer ordering the court, or by the officer com- 
 manding for the time being." ^ 
 
 ^See note 1, page 138, post, as to use of statement of service. 
 2 For form for revision see jiage 158, post. 
 3 Par. 992, A. R. 
 
 4-23 Opin. Atty. Genl., 23; see G. O. 21, A. G. O., 19CK). 
 5104th A. W.; see par. 193, A. K. 
 50963 5 
 
 ,v. 2 
 
66 REVIEAVING AUTHORITY. 
 
 2. The officer having authority to confirm the sen- 
 tence of a court-martial will state at the end of the 
 proceedings in each case his decisions and orders.^ 
 
 3. ' 'Air sentences of a court-martial may be confirmed 
 and carried into execution by the officer ordering the 
 court, or by the officer commanding for the time being, 
 where confirmation by the President, or by the com- 
 manding general in the field, or commander of the 
 department," is not required by the Articles of War.- 
 In time of peace, sentences directing the dismissal of 
 an officer or inflicting the punishment of death require 
 confirmation by the President.''' Proceedings involving 
 either dismissal or death will therefore (except in time 
 of war, in cases mentioned in the 105th and 107th Arti- 
 cles of War) be forwarded by the convening authority, 
 after approval,^ direct to the Judge-Advocate-General 
 for the action of the President. 
 
 4. A military commander can not delegate to an infe- 
 rior or other officer his function as reviewing authority 
 as conferred by the 104th and 109th Articles of War. 
 Nor can he authorize a staff or other officer to subscribe 
 for him his decision and orders on the proceedings. 
 
 5. Every officer authorized to order a court-martial 
 has power to pardon or mitigate any punishment ad- 
 judged by it,^ except that of death,** or the dismissal of 
 an officer.'' 
 
 6. "The power to remit or mitigate punishment im- 
 posed by a court-martial, vested in the authority who 
 appointed the court or the corresponding authority 
 under whose jurisdiction the sentence is being executed, 
 
 1 Par. 990, A. K. 
 
 2109th A. W. For requirement of regulations as to " Officer commanding 
 for the time being," see par. 193, A. K. 
 
 3 105th, 106th, and 108th i(?. 
 
 4 The convening authority, before forwarding the case, should complete 
 the sentence by designating the place of confinement, where confinement is 
 imposed by the sentence, as in cases where no confirmation is required. 
 
 5112th A. W. 
 c 105th id. 
 7 lOGth id. 
 
REVIEWING AUTHORITY. 07 
 
 extends only to unexecuted portions of a sentence. If 
 the punishment be one imposed by a general court- 
 martial, it may be remitted or mitigated only by an 
 officer competent to order a general court-martial and 
 under whose jurisdiction the sentence is being executed. 
 The fact that a soldier has been dishonorably discharged 
 through his sentence does not affect this power. An ap • 
 plication for clemency in case of a prisoner sentenced to 
 confinement in a penitentiary , or in the United States 
 Military Prison or any branch thereof, will be for- 
 warded to the Secretary of War for the action of the 
 President. A military prisoner sentenced to confine- 
 ment in a penitentiary, or in the United States Military 
 Prison or any branch thereof, will, so far as concerns 
 the exercise of clemency, be considered to have passed 
 beyond the jurisdiction of a division or department com- 
 mander from the date of the approval of his sentence, 
 without regard to the fact of his being temporarily re- 
 tained within the command of the division or depart- 
 ment commander pending transfer to a penitentiary, or 
 the United States Military Prison or any branch thereof. 
 The power to commute sentences imposed by military 
 tribunals, not being vested in military commanders, can 
 be exercised by the President only." ^ 
 
 7. "Any officer who has authority to carry into exe- 
 cutton the sentence of death, or of dismissal of an 
 officer, may suspend the same until the pleasure of the 
 President shall be known: and, in such case, he shall 
 immediately transmit to the President a copy of the 
 order of suspension, together with a copy of the pro- 
 ceedings of the court. "-^ 
 
 1 Par. 951, A. R. 
 
 2111th A. W. 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 authority 
 to approve such sentence and carry it into execution will advise The Adju- 
 tant-General of the Army by telegraph of the sentence imposed as approved 
 or mitigated and the date of promulgation thereof. (G. 0. 6, W. D., 1910.) 
 
68 REVIEWING AUTHORITY. 
 
 8. While a reviewing authority may remit or miti- 
 gate a sentence, he can not change it so as to impose a 
 punishment of a different nature; thus, he can not 
 change a sentence of dishonorable discharge awarded 
 an enlisted man to confinement at hard labor; ^ but a 
 legal sentence of dishonorable discharge, forfeiture of 
 all pay and allowances due, and confinement at hard 
 labor for a definite period may be mitigated by the 
 authority designated in paragraph 6, page 66, ante, to 
 confinement at hard labor and forfeiture of all pay and 
 allowances for a period not to exceed the period of con- 
 finement awarded in the sentence.- 
 
 9. " The authority which has designated the place of 
 confinement, or higher authority, may change the place 
 of confinement of any prisoner under the jurisdiction of 
 such authority;"'^ but " when the court has sentenced 
 a prisoner to confinement at a post, no power is compe- 
 tent to increase the punishment by designating a peni- 
 tentiary as the place of confinement."^ When a peni- 
 tentiary has been erroneously designated the reviewing 
 authority may disapprove it and designate a proper 
 place. 
 
 10. When general courts-martial have properly sen- 
 tenced soldiers to confinement in a penitentiary,^ "de- 
 partment commanders will designate the United States 
 Penitentiary at Leavenworth, Kans., as the place of 
 such execution of sentence, in cases in which the term 
 of confinement imposed is more than one year. If 
 any State or Territory within a military department 
 has made provision by law for the confinement of such 
 prisoners in its penitentiaries, the department com- 
 mander, with the approval of the Secretary of War, 
 may designate one as the place of execution of sentence. '"* 
 
 1 As to authority of reviewing officer to change finding, see page 47, note 
 1, ante. 
 2Cir. 48, A. G. 0., 1900. 
 
 3 Par. 980, A. R. 
 
 4 Id., 976. A punishment of confinomcnt in a penitentiary, whon legal, 
 may be mitigated to conJinement at a military post. 
 
 ^See page 51, i)ar. 12, ante. 
 e Par. 975, A. E. 
 
REVIEWING AUTHORITY. 69 
 
 11. ""When a sentence of confinement or forfeiture is 
 in excess of the legal limit, the part within the limit is 
 legal and may be executed." ^ 
 
 12. "The time at which a dishonorable discharge is 
 to take effect, as fixed by a sentence, can not be post- 
 poned by the reviewing officer." - 
 
 13. "A sentence to confinement, with or without for- 
 feiture of pay, can not become operative prior to the 
 date of confirmation. If it be proper to take into con- 
 sideration the length of confinement to which the pris- 
 oner has been subjected previous to such confirmation, 
 it may be done by mitigation of sentence." ^ 
 
 14. "An order remitting a forfeiture of pay operates 
 only on the pay to become due on and after the date of 
 the order."-* 
 
 15. "The order promulgating the proceedings of a 
 court and the action of the reviewing authority will, 
 when practicable, be of the same date. When this is 
 not practicable, the order will give the date of the action 
 of the reviewing authority as the date of the beginning 
 of the sentence. This does not apply to sentences of 
 forfeiture of all pay and allowances. A soldier await- 
 ing result of trial will not be paid before the result is 
 known." = 
 
 16. "Trials by general courts-martial, including so 
 much of the proceedings as will give the charges and 
 specifications, the pleadings, findings, and sentence, and 
 the action and remarks of the reviewing authority, will 
 be announced in general orders issued from the War 
 Department or from the proper division or department 
 headquarters. If the charges contain matter which for 
 any reason is unfit for publication, such matter will be 
 omitted from the order, but a copy thereof will be 
 promptly furnished by the reviewing authority to the 
 commanding officer of the post at which the officer or 
 soldier is confined, to be included with the papers re- 
 
 iPar. 977, A. li. ^Id., 984. ^ Id., 981. 
 
 i Id., 986. ^ Id., 919. 
 
70 CONFINEMENT AFTER TRIAL. 
 
 quired by paragraph 946 to be sent to the commanding 
 officer of the post or military prison where the sentence 
 of confinement is to be executed." ^ 
 
 CONFINEMENT AFTER TRIAE. 
 
 1. "Enlisted men * * * who have been tried will, 
 prior to the promulgation of the result, be designated 
 as ' awaiting result of trial; ' enlisted men serving sen- 
 tences of confinement, not involving dishonorable dis- 
 charge, will be designated as 'garrison prisoners;' 
 those sentenced to dishonorable discharge and to terms 
 of confinement at military posts or elsewhere will be 
 designated as 'military convicts.' "- 
 
 2. " Prisoners awaiting trial by, or undergoing sen- 
 tence of, general court-martial and those confined for 
 serious offenses will, if practicable, be kept apart from 
 those confined by sentence of an inferior court, or for 
 minor offenses. Enlisted men awaiting trial or awaiting 
 result of trial will not be sent to work with garrison 
 prisoners or military convicts if it can be avoided, and 
 may, in the discretion of the commanding officer, be re- 
 quired to attend drills, or sent to work under charge of a 
 sentinel , during the usual working hours. Military con- 
 victs will not be confined with other prisoners except in 
 cases of necessity." '^ 
 
 3. " Prisoners will not be placed in irons except pur- 
 suant to sentence of a court-martial, or in the extraor- 
 dinary case of a prisoner who, in the judgment of the 
 commanding officer, is a desperate or dangerous char- 
 acter, in which case report of action and the circum- 
 stances will be immediately made to the department 
 commander. A prisoner may be shackled or handcuffed 
 while being transported from one post to another, or 
 from a post to a penitentiary when, in the judgment of 
 
 1 Par. 993, A. R. For form for general order, see page 188, pout. 
 2i(L, 936. 
 
 •^ Id., 9iU. For bpecial rules relating to i)ri.soiiers, see G. O. \r,'>, W. I). 
 1908. 
 
CONFINEMENT AFTER TRIAL. 71 
 
 the officer in charge, the escape of the prisoner can not 
 otherwise be prevented." ' 
 
 4. " Prisoners will be forwarded from places of trial 
 to posts at which they are sentenced to serve confine- 
 ment only on orders of department commanders or 
 higher authority. The strength of guards to accom- 
 pany them will be limited to the necessities of safe 
 delivery. Orders detailing guards in charge of military 
 prisoners will provide for the return journey of the 
 guard and for commutation of rations, when such com- 
 mutation is necessary. The commanding officer of a 
 post from which a prisoner is transferred will send under 
 seal, to the commanding officer of the post where the 
 sentence of confinement is to be executed, the following 
 papers in his case, viz: Discharge papers, if discharged, 
 descriptive list, orders promulgating and modifying 
 sentences, statement of conduct while under sentence to 
 date of transfer, and a list of clothing in possession of 
 the prisoner when forwarded."'^ 
 
 5. "All serviceable clothing which belongs to a pris- 
 oner, and his blankets, will accompany him to the post 
 designated for his confinement, and will be fully item- 
 ized on the clothing list mentioned in the preceding- 
 paragraph. The guard in charge of the prisoner during 
 transfer will be furnished with a duplicate of this list 
 and will be held responsible for the delivery of all arti- 
 cles itemized therein, with the prisoner. At least one 
 serviceable woolen blanket will be sent with every such 
 prisoner so transferred. "^ 
 
 6. "The personal effects of military prisoners who 
 have escaped from confinement, except such as possess 
 some special value as keepsakes, may be disposed of by 
 sale as in the case of effects of deceased soldiers, and 
 the proceeds thereof, together with any money left by 
 
 1 Par. 943, A. K. 
 
 2W.,94C. This list of dothins will show the particuhir kinds of cloth- 
 ing and the i)rices thereof as set forth on the annual clothing; jirice list. 
 (Cir. 47, \V. D., 1909.) 
 
 3/,?., 947. 
 
72 CONFINEMENT AFTER TRIAL. 
 
 the prisoner in the hands of the company commander, 
 be turned over to a paymaster, who shouhl account for 
 the same in the manner provided for paymaster's col- 
 lections. The officer will take the paymaster's receipt 
 for the amount paid him and forward the same to the 
 Auditor for the War Department."^ 
 
 7. "Military convicts, other than those confined in 
 penitentiaries, will be allowed in abatement of their 
 terms of confinement when serving sentences of over 
 three months and not over twelve months five days for 
 each complete period of twenty-five days during the 
 whole of which their conduct has been good; but the 
 abatement of five days so authorized shall not have 
 the effect in any case of reducing the confinement below 
 three months. On sentences exceeding one year they 
 will be allowed the foregoing abatement for the first 
 year of the sentence including abatement, and there- 
 after ten days for each complete period of twenty days 
 during the whole of which their conduct has been good. 
 Abatements thus authorized may be forfeited, wholly 
 or in part, by subsequent misconduct, such forfeiture 
 to be determined by the commanding officer of the post 
 where the prisoner is confined. A military convict serv- 
 ing sentence in a penitentiary will be allowed the abate- 
 ment authorized for convicts in that penitentiary. "^ 
 
 8. " When the date for the commencement of a term 
 of confinement imposed by sentence of a court-martial 
 is not expressly fixed by the sentence, the term of con- 
 finement begins on the date of the order promulgating 
 it. The sentence is continuous until the term expires, 
 except when the person sentenced is absent without 
 authority."^ The word days in a sentence of confine- 
 ment means periods of twenty-four hours, counting from 
 guard-mounting on the first day of the sentence.^ 
 
 1 Par. !M.S, A. 11. - /(/., 950. :</</., !I78. 
 
 ■Trisoiicrs anf rclea8c<l at guar(i-iuuuiitiiij.C uii day of oxpiratiuii of soi 
 tt'ijce. 
 
HABEAS CORPUS. 73 
 
 9. "When soldiers awaiting result of trial or under- 
 going sentence commit offenses for which they are 
 tried, the second sentence will be executed upon the 
 expiration of the first." ^ 
 
 10. Where a soldier, while undergoing sentence of 
 confinement imposed without dishonorable discharge, 
 is tried for a further offense and sentenced to dis- 
 honorable discharge and confinement, the period of 
 confinement under his prior sentence will terminate 
 upon the date of his dishonorable discharge, leaving to 
 be executed only the confinement imposed by the second 
 sentence. 
 
 11. "No military convict will be released from con- 
 finement except on an order communicated by the com- 
 manding officer, who, before giving such order, will 
 himself verify the date of expiration of the convict's 
 sentence by examining all orders fixing or modifying 
 his term of confinement." - 
 
 HABEAS CORPUS. 
 
 1. "Officers will make respectful returns, in writing, 
 to all writs of habeas corpus served on them. When 
 the writ is issued by a State court or judge, and the 
 person held by the army officer is a civilian who has 
 been apprehended under a warrant of attachment to be 
 taken before a court-martial to testify as a witness, the 
 officer will not produce the body, but will, by his return, 
 set forth fully the authority by which he holds the per- 
 son, and allege that the State authority is without juris- 
 diction to issue the writ of habeas corpus, and ask to 
 have the same dismissed. He will also exhibit to the 
 court or officer issuing the writ of habeas corpus the 
 warrant of attachment and the subpoena (and the proof 
 of the service of the subpoena) on which the warrant of 
 attachment was based, and also a certified copy of the 
 order convening the court-martial before which he had 
 been commanded to take the person." ^ 
 
 1 Par. 982, A. R. 2 il., 949. 3 j,i io07. 
 
74 HABEAS CORPUS. 
 
 2. " Should a writ of habeas corpus issued by a State 
 court or judge be served upon an army officer, com- 
 manding him to produce an enlisted man or military 
 convict, and show cause for his detention, the officer 
 will decline to produce in court the body of the person 
 named in the writ, but will make respectful return ^ in 
 writing to the effect that the man is a duly enlisted sol- 
 dier of the United States or a military convict under 
 sentence of court-martial, as the case may be, and that 
 the Supreme Court of the United States has decided 
 that a magistrate or court of a State has no jurisdiction 
 in such a case."- 
 
 3. No writ of habeas corpus shall be issued against a 
 military officer or soldier who is detaining a prisoner in 
 any unorganized province or territory of the Philippine 
 Islands. •■ 
 
 4. It shall be a conclusive answer to a writ of habeas 
 corpus against a military officer or soldier, and a suffi- 
 cient excuse for not producing the prisoner in all organ- 
 ized provinces of the Philippine Islands, if the Com- 
 manding General or any general officer in command of 
 the department or district shall certify that the prisoner 
 is held by him either — 
 
 (1) As a prisoner of war; 
 
 (2) As a member of the Army, a civilian employee 
 
 thereof, or a camp follower and subject to its 
 discipline; but this paragraph shall not apply 
 to pending^ cases; or 
 
 1 For form, see page 192, jJo.^^ A deserter, apprehended by a civil officer 
 authorized by 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. 
 (Cir. 53, W. D., 1007.) 
 
 2 Par. 1008, A. R. 
 
 3 Acts of the Philippine Commission of October 1, 1901, and June 23,1902. 
 Respectful return in writing will be made in the case of i)risoners who may 
 be exempted from jurisdiction by the provisions of the acts above cited, 
 stating the facts of the case, but the body of the prisoner will not be pro- 
 duced. In all other cases the return will be made and the body produced 
 before the proper tribunal. 
 
 1 0ctober 1, 1901. 
 
DISPOSITION OF RECORDS. 75 
 
 (3) As a prisoner committed by a military court or 
 
 commission prior to October 1, 1901: or 
 
 (4) As a prisoner arrested and held for trial before 
 
 a military court or commission before October 
 15, 1901, for a violation of the laws of war com- 
 mitted before the same date ; or 
 
 (5) As a prisoner guilty of violations 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.^ 
 
 5. 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 a 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 department. '• 
 
 DISPOSITION^ OF RECORDS. 
 
 1. The Judge-Advocate-General revises and is the 
 custodian of the records of the proceedings of all gen- 
 eral courts-martial.^ The original records of proceed- 
 ings, with the decisions and orders of the reviewing 
 authorities made thereon, and also the records of pro- 
 ceedings of all general courts which require confirma- 
 
 lActs of the Philippine Commission of October 1, 1901, and .Tune 23, 1902. 
 Respectful return in writing will be made in the case of prisoners wlio may 
 be exempted from jurisdiction by the provisions of the act above cited, 
 stating the facts of the case, but the body of the prisoner will not be pro- 
 duced, lu all other cases the return will be made and the body produced 
 before the proper tribunal. 
 
 - For form, see page 190, post. For brief of authorities, when the writ is 
 applied for ou the ground of minority, see page 193, post. 
 
 ^'Par. 1009, A. K. 
 
 ■iSec. 1199, R. S.; jiar. 923, A. U. 
 
76 DISPOSITION OF RECORDS. 
 
 tion by the President but which have not been appointed 
 by him, will be forwarded direct to the Judge- Advocate- 
 General. One copy of the order promulgating the ac- 
 tion of the court, and a copy of every subsequent order 
 affecting the case, will be forwarded to the Judge- Advo- 
 cate-General, for file with the record of each case. When 
 more than one case is embraced in a single order, a 
 sufficient number of copies will be forwarded to enable 
 one to be filed with each record. The proceedings of 
 all courts appointed by the President will be sent direct 
 to the Secretary of War.^ 
 
 2. "Applications of officers, enlisted men, and mili- 
 tary prisoners for copies of proceedings of general 
 courts-martial, to be furnished them under the one 
 hundred and fourteenth Article of War, will, when 
 received by post or other commanders, be forwarded 
 direct to the Judge- Ad vocate-General."- 
 
 3. " Communications relating to proceedings of mili- 
 tary courts on file in the Judge-Advocate-General's 
 Department will be addressed and forwarded direct by 
 department commanders to the Judge-Advocate-Gen- 
 eral. In routine matters the Judge-Advocate-General 
 and judge-advocates may correspond with each other 
 direct. ' ' ^ 
 
 4. Judge-advocates of departments are the custodians 
 of the reports of cases tried by siimmary courts ^ and of 
 all proceedings of garrison or regimental courts-martial.'^ 
 
 5. Post commanders will, on the last day of each 
 month, make a report to the department headquarters 
 of the number of cases determined by summary court 
 during the month, setting forth the offenses committed 
 and the penalties awarded. '^ ' ' The complete proceedings 
 
 1 Par. 925, A. R. 
 
 ^ Id., 921. 
 
 3 Id., 928. 
 
 * Act of June 18, 1898, esttiblishiiig tlie summary court; see page ISO, pofit. 
 
 5 Act of March 3, 1877. 
 
 G Act of June 18, 1898, sec. 4, page 130, post. 
 
DISPOSITION OF RECORDS. 77 
 
 of a garrison or regimental court will be transmitted 
 without delay by the post or regimental commander 
 to department headquarters." ^ 
 
 6. The reports of cases tried by summary courts and 
 the records of garrison and other inferior courts, except 
 when convened at recruit depots and recruiting stations 
 and other places exempted from the jurisdiction of com- 
 manders of territorial divisions and departments by par- 
 agraph 187, Army Regulations, will be filed in the office 
 of the judge-advocate at the headquarters of the depart- 
 ment commander in whose department the courts were 
 held for two years, at the end of which time they may 
 be destroyed.^ Where such courts were convened at re- 
 cruit depots and. recruiting stations and other exempted 
 places, the reports and records of such courts will be 
 forwarded direct to The Adjutant-General of the Army. 
 
 1 Par. 991, A. R. 
 2Actof March3, 1877. 
 
INFERIOR COURTS-MARTIAL. 
 
 THE SUMMARY COURT.i 
 
 1. Composition, "etc. — The summary court is com- 
 posed of one officer, designated by the commanding 
 officer of a garrison, fort, or other place, regiment or 
 corps, detached battalion or company, or other detach- 
 ment, for such place or command, or for each battalion 
 of a command. When more than one officer is present 
 with a command, the commanding officer should, not 
 designate himself as a summary court. But the sum- 
 mary court may be appointed and the officer designated 
 by superior authority when by him deemed desirable. 
 
 2. When but one commissioned officer is present with 
 a command, he is a summary court and finally deter- 
 mines the cases tried by him. In such case no order 
 appointing the court will be issued, but the officer will 
 enter on the record that he is the " only officer present 
 with the command.'"- In all other cases the sentences 
 must, before they can be executed, be approved by the 
 officer appointing the court or the officer commanding 
 for the time being. 
 
 3. The summary-court act does not give the accused 
 the right to object to trial by summary court, except as 
 stated in the next paragraph, nor does it require that 
 when the trial officer is the accuser the case shall be 
 tried by another court. A summary court can not, 
 however, adjudge confinement and forfeiture in excess 
 of a period of one month, unless the accused shall before 
 trial consent in writing to trial by said court, but in 
 
 1 Established by act of June 18, 1898, and recognized by the 83d A. W. 
 See pages 129 and 132, i^ost. 
 2 Par. 966, A. R. 
 
 (78) 
 
THE SUMMARY COURT. 79 
 
 any case of refusal to so consent, the trial may be had 
 either by general, regimental, or garrison court-martial, 
 or by said summary court, but in case of trial by said 
 summary court without consent as aforesaid, the court 
 shall not adjudge confinement or forfeiture of pay for 
 more than one month. ^ 
 
 4. Noncommissioned officers can not, if they object 
 thereto, be brought to trial before summary courts 
 without the authority of the officer competent to order 
 their trial by general court-martial, but shall, in such 
 cases, be brought to trial before garrison, regimental, 
 or general courts -martial, as the case may be.- 
 
 5. Jurisdiction. — The summary court has jurisdiction 
 both in time of peace and of war. 
 
 6. As regards persons, the summary court can not 
 legally try officers, cadets, candidates for promotion, or 
 the civilians mentioned in the 63d Article of War. As 
 to noncommissioned officers, see paragraph 4, ante. 
 Over all other enlisted men and over general prisoners 
 the summary court has jurisdiction. 
 
 7. As regards time of trial, the jurisdiction of a sum- 
 mary court is not affected by the time when cases are 
 brought before it, the requirement of the law as to time 
 being directory only. The commanding officer, and not 
 the court, will determine when and what cases will be 
 brought before it. Delay in the trial of a soldier does 
 not invalidate the proceedings, but may be considered 
 by the court in awarding sentence.^ 
 
 8. Power.— Summary courts have power to adminis- 
 ter oaths ;^ to hear and determine cases; and, when 
 
 183d A. W., as amended by act approved March 2, liiOl, page 132, post. 
 
 2 Summary Court Act, page 130, post. 
 
 3 Par. 968, A. R. 
 
 4 This refers to oaths of witnesses. The trial officer himself is not sworn. 
 The trial officers of summary courts, judge-advocates of courts-martial, and 
 judge-advocates of departments have power to administer oaths for pui-poses 
 of military justice and for other purposes of military administration. (See 
 act of July 27, 1892, page 121, post.) A summary court is not empowered to 
 issue process of attachment to compel the attendance of a civilian witness. 
 
80 THE SUMMARY COURT. 
 
 satisfied of the guilt of an accused party, to adjudge the 
 punishment to be inflicted.^ 
 
 9. Procedure. — The accused will be arraigned and 
 allowed to plead, according to court-martial practice. 
 When the accused pleads not guilty, witnesses will be 
 sworn and evidence received, the accused being per- 
 mitted to testify in his own behalf and make a state- 
 ment, but the evidence and statement will not be 
 recorded. 
 
 10. The summary court, as soon as trial is concluded, 
 will record its findings and sentence ^ in the summary 
 court record and submit it to the officer appointing the 
 court, who will record thereon his approval or disap- 
 proval, in part or in whole, with date and signature. 
 Should the only officer present with the command sit 
 as summary court, the findings and sentence will be 
 recorded in like manner.^ No other records of the pro- 
 ceedings will be kept, and such trials will not be pub- 
 lished in orders. 
 
 11. Previous Convictions.— Charges submitted for 
 trial by a summary court will be accompanied by the 
 certified copies of previous convictions on file with the 
 company records, which copies will be returned to the 
 company records immediately after trial. If this evi- 
 dence is not submitted, the summary court may take 
 judicial notice of any such evidence which that record 
 contains. If the charges be referred to a garrison or 
 regimental court-martial, the copies of previous con- 
 victions will accompany them, but will be returned to 
 the company records immediately after trial. ^ 
 
 12. Whenever, in determining on its sentence, a sum- 
 mary court shall take into consideration previous 
 
 1 Act of June 18, 1898; see page 129, post; and 83d A. W., as amended by 
 act approved March 2, 1901, page 132, post. 
 - For forms for sentences, see page 170, pout. 
 
 3 See page 161, jjosA. 
 
 4 Par. 9(54, A. 11., and "Instructions" on Summary Couit Kecord, page 
 
 ^^.o,iH>.s^ 
 
THE SUMMARY COURT. 81 
 
 convictions, a note of the number of sticli previous 
 convictions will be made on the summary court record. 
 
 13. Limit of Punishing Power.— Summary courts are 
 subject to the restrictions of the 83d Article of War, 
 
 Under this . article inferior courts-martial "have 
 power to award punishment not to exceed confinement 
 at hard labor for three months or forfeiture of three 
 months' pay, or both, and in addition thereto, in the 
 case of noncommissioned officers, reduction to the 
 ranks, and in the case of first-class privates reduction 
 to second-class privates: Provided, That a summary 
 court shall not adjudge confinement and forfeiture in 
 excess of a period of one month unless the accused shall 
 before trial consent- in writing to trial by said court, 
 but in any case of refusal to so consent the trial may 
 be had either by general, regimental, or garrison court- 
 martial, or by said summary court, but in case of trial 
 by said summary court without consent as aforesaid, 
 the court shall not adjudge confinement or forfeiture 
 of pay for more than one month." This is the limit of 
 their punishing poiL'er . For those offenses for which a 
 limit of punishment has been prescribed, a summary 
 court is restricted to the kinda of punishment named, 
 except as to the substitutions in the settled ratio given 
 on page 60, ante. 
 
 14. Record. — "There shall be a summary court rec- 
 ord kept at each military post, and in the field at the 
 headquarters of the proper command, in which shall be 
 entered a record of all cases heard and determined and 
 the action had thereon." ^ 
 
 15. Clemency. — The commanding officers authorized 
 to approve the sentences of summary courts and supe- 
 rior authority have power to remit or mitigate the 
 same. 2 
 
 1 Act of June 1«, ISitS; see page 130, jjost. For form for record, see page 
 159, post. 
 ^Id., sec. 3, page l'.iO,post. 
 
 50963 6 
 
82 THE SUMTVIARY COURT. 
 
 16. "When the only officer present with a command 
 sits as a summary court, no approval of the sentence is 
 required by law, but he should sign the sentence as 
 such officer and date his signature." ^ 
 
 17. Instructions for Post and Other Commanders, 
 relating to Summary Courts. — Charges for offenses 
 cognizable by inferior courts will be laid before the 
 proper commander, who, if he thinks the accused 
 should be tried, will cause him to be brought before 
 the summary court '-^ or garrison or regimental court- 
 martial. Before referring to summary courts charges 
 for which the maximum limit of punishment that may 
 be awarded is greater than one month's forfeiture and 
 confinement, commanding officers will cause the ac- 
 cused to sign a statement on the original charges as to 
 whether or not he consents to trial by summary court, 
 which statement, along with the charges, becomes a 
 part of the summary court record. A note of this state- 
 ment in each case will also be entered on the monthly 
 report of trials by such court. ^ 
 
 18. "Commanding officers are not required to bring 
 every dereliction of duty before a court for trial, but 
 will endeavor to prevent their recurrence by admoni- 
 tions, withholding of privileges, and taking such steps 
 as may be necessary to enforce their orders."'^ In 
 accordance with the spirit of the foregoing, company 
 commanders are authorized, subject to the control of 
 the commanding officer of the post, to dispose of cases 
 of derelictions of duty in their commands which would 
 be within the jurisdiction of inferior courts-martial by 
 requiring extra tours of fatigue, unless the soldier con- 
 cerned demands a trial. This right to demand a trial 
 must be made known to him.^ 
 
 19. " The summary court will be opened at a stated 
 hour every day except Sunday,*^ for the trial of such 
 
 » Par. 966, A. R. ^Td., 965. 
 
 3 Id., 963. Sec forms, pages 159 and 161, post. *Td., 961, 
 
 6 Id , and Cir. No. 5, A. G. 0., March 14, 1898. 
 
 cjf it be understood that tlie court shall not sit on Sunday, the officer 
 charged with the duty of bringing offenders before it will comply with his 
 duty by doing so at the first session of the court thereafter. 
 
THE GARRISON COURT-MARTIAL. 83 
 
 cases as may properly be brought before it. Trials 
 will be had on Sunday only when the exigencies of the 
 service make it necessary." ^ 
 
 20. Commanding officers will furnish company and 
 other commanders with copies of the summary court 
 record relating to men of their commands, said copies to 
 be certified to be true copies by the commanding officer 
 or adjutant.' 
 
 21. The name of each officer at a post who has acted 
 as a summary court will be reported on the post return 
 with dates. 
 
 THE GARRISOX COURT-MARTIAL. 
 
 1. Composition. — A garrison court-martial is com' 
 posed of three members '' and a judge-advocate. The^ 
 remarks regarding the eligibility of officers for court- 
 martial duty, on page 11, paragraphs 1-3, ante, apply 
 to garrison courts. 
 
 2. Constitution. — Every officer commanding a garri- 
 son, fort, or other place where the troops consist of dif- 
 ferent corps may appoint garrison courts.^ The term 
 ' ' other place ' ' includes any locality whatever where the 
 command may be, whether in garrison or in the field. 
 To fulfill the requirement regarding " different corps," 
 it is sufficient if there be on duty in the command a 
 single officer or soldier of another arm of service than 
 that of which the main body is composed. 
 
 3. Jurisdiction, etc.— The summary court act has 
 expressly abolished the field officer's court, and has 
 practically substituted the summary court for the gar- 
 rison and regimental courts-martial, both in time of 
 peace and war, subject to the provisions that noncom- 
 missioned officers shall not, if they object thereto, be 
 brought to trial before summary courts without the 
 authority of the officer competent to order their trial 
 by general court-martial, but shall in such cases be 
 
 1 Par. 968, A. R. 2 u., 965. 3 82d A. W. ^Id. 
 
84 THE GARRISON COURT-MARTIAL. 
 
 brought to trial before garrison, regimental, or general 
 courts-martial, as the case may be ; ^ and the 83d Article 
 of War provides that a summary court shall not adjudge 
 confinement and forfeiture in excess of a period of one 
 month unless the accused shall before trial consent in 
 writing to trial by said court, but in any case of refusal 
 to so consent the trial may be had either by general, 
 regimental, or garrison court-martial. 
 
 4. The garrison court-martial can not try capital 
 cases, nor commissioned officers, cadets, or candidates 
 for promotion; but it has jurisdiction over all other 
 enlisted men,- military convicts, and, in time of war, 
 over the persons described in the 63d Article of War. 
 
 5. A garrison court-martial may be convened under 
 the following circumstances: 
 
 (a) Where the accused, not being an enlisted man or 
 a military convict, is not subject to the jurisdiction of 
 a summary court, although he is subject to the jurisdic- 
 tion of other inferior courts-martial. 
 
 (b) In case the accused, before trial, refuses to con- 
 sent in writing to trial by summary court, the case 
 being one which a summary court can not, under these 
 circumstances, adequately punish. 
 
 (c) When the accused, being a noncommissioned offi- 
 cer, objects to trial by summary court. 
 
 6. Whenever under the summary court act or the 
 8Sd Article of War it becomes necessary to convene a 
 garrison or regimental court, the order appointing it 
 will state the facts which bring the cases to be tried 
 within the exceptions of those laws. ^ 
 
 7. The general remarks heretofore made regarding 
 the president, members, judge-advocate, organization, 
 order of procedure,^ etc. , of courts-martial apply to gar- 
 rison courts, except when the general court is specifi- 
 cally mentioned. 
 
 1 Act of June 18, 1898; see page 130,^)o.s<. 
 
 2 But see par. 967, A. R., as to noncommissioned officers. 
 
 3 Par. 969, A. II. For form for order and record, see page 162, post. 
 
 * Testimony taken before a garrison or regimental court-martial will no 
 be reduced to writing. (l*ur. 988, A. R. ) 
 
THE REGIMENTAL COURT-MARTIAL. 85 
 
 THE REGIMENTAL COURT-MARTIAL.' 
 
 1. Composition.— The regimental, like the garrison 
 court-martial, is composed of three members and a 
 judge-advocate; but in case of the regimental court 
 only officers of the offender's regiment or corps are 
 eligible for detail on the court.- 
 
 2. Constitution. — Every officer commanding a regi- 
 ment or corps may appoint a regimental court-martial. - 
 The word "corps" includes the Corps of Engineers, 
 the Ordnance, and the Signal Corps. 
 
 3. Jurisdiction.— With the exception that the regi- 
 mental court-martial has jurisdiction only over offend- 
 ers belonging to the regiment or corps from which the 
 court is composed, and over civilians attached thereto, 
 as contemplated in the 63d Article of War, what has 
 been said of the jurisdiction, punishing power, and pro- 
 cedure of garrison courts applies equally to regimental 
 courts.^ 
 
 The regimental court-martial also has the jurisdiction 
 conferred upon it by the 30th Article of War.^ 
 
 1 See page 108, post, note. 
 
 2 81st A. W. 
 
 SKegarding order for regimental court, see par. 969, A. H.; and for form 
 for record, see page 165, post. 
 
COURTS OF INQUIRY. 
 
 1. Constitution. — A court of inquiry may be ordered, 
 that is, convened, by the President or by any command- 
 ing oflScer, but shall never be ordered by a commanding 
 officer except upon a demand by the officer or soldier 
 whose conduct is to be inquired of.^ 
 
 2. There is no statutory restriction to the meaning of 
 the term " commanding officer," consequently any com- 
 mander of the officer or soldier who makes the request 
 would have authority to convene the court, but if the 
 charge to be inquired into is beyond the jurisdiction of 
 a court-martial which such commander can convene, 
 he would not, by analogies of the service in the admin- 
 istration of military justice, be the proper convening 
 authority in such case. It is the offense charged which 
 should give the jurisdiction to convene and not the status 
 of the party in service.'^ 
 
 3. Jurisdiction. — A court of inquiry is convened to 
 examine into the nature of any transaction of, or accusa- 
 tion or imputation against, any officer or soldier,^ and 
 the inquiry is confined to those actually in the service.^ 
 It will not give an opinion on the merits of the case 
 inquired of unless specially ordered to. do so.^ The 
 opinion may not be unanimous and a dissenting opinion 
 is therefore authorized. The court is not barred by any 
 statute of limitation in its investigation,'* 
 
 1 115th A. w. 
 
 2 0pin. J. A. G., approved by Secretary of War, September 19, 1874. 
 
 3115th A. W. 
 
 ^Digest Opin. J. A. G., § 366. 
 
 s 119th A. W. 
 
 61)igest Opiu. J. A. G., § 318. 
 
 (86) 
 
COURTS OF INQUIRY. 87 
 
 4. Composition.— "A court of inquiry shall consist of 
 one or more officers, not exceeding three, and a recorder, 
 to reduce the proceedings and evidence to writing." ' 
 
 5. The form of the convening order is similar to that 
 for a court-martial. It details the members and recorder 
 by name, and specifies the subject-matter of inquiry, and 
 directs a report of the facts only, or of the facts with 
 an opinion. 
 
 6. Where the court is composed of two or more mem- 
 bers and the number is reduced by casualty or challenge, 
 the court may proceed with the reduced number, but the 
 convening authority should be notified, as a new mem- 
 ber may be detailed and take his seat during the inquiry. 
 
 ?. Organization. — It is the custom of the service to 
 allow the same right of challenge of members as in 
 courts-martial. 
 
 8. The oath of the members of the court is adminis- 
 tered by the recorder and that of the recorder by the 
 president of the court. The oaths are those prescribed 
 by the 117th Article of War. 
 
 9. A reporter for a court of inquiry is allowed to be 
 paid under current appropriation acts for the support of 
 the army. The employment and rate of compensation is 
 in the discretion of the Secretary of War only. Reporters 
 are usually paid at the rates fixed by army regulations 
 for those of general courts-martial. 
 
 10. Procedure. — A court of inquiry is governed by the 
 general principles of military law, applying the analo- 
 gies of a court-martial where they are applicable, and 
 recurring to adjudged cases, precedents, rules, authori- 
 tative legal opinions and approved books of legal expo- 
 sition, where there is no pertinent paramount stated 
 rule.- 
 
 11 . "A court of inquiry, and the recorder thereof, have 
 the same power to summon and examine witnesses as is 
 given to courts-martial and the judge-advocates thereof. 
 Such witnesses shall take the same oath which is taken 
 
 1 116th A. W, •- 8 Opin. Atty. Geu., 34G. 
 
88 COURTS OF INQUIRY. 
 
 by witnesses before courts-martial, and the party ac- 
 cused shall be permitted to examine and cross-examine 
 them, so as fully to investigate the circumstances in 
 question."^ 
 
 12. The examination of witnesses may be by the court, 
 by a member thereof, or by the recorder, in the discre- 
 tion of the court. " The recorder is not an adviser of 
 the court, nor a prosecutor before it, but must assist the 
 court, if it so desires, in all matters leading to correct 
 conclusions of fact and law. 
 
 13. The court must give its conclusions as to the facts 
 as a finding, and, when ordered, give an opinion on the 
 merits of the case. 
 
 14. "The proceedings of a court of inquiry must be 
 authenticated by the signatures of the recorder and the 
 president thereof, and delivered to the commanding 
 ofScer."'^ The form for the record of a general court- 
 martial should be followed in making up the record of 
 the court. 
 
 1 118th A. W. 2 I20tb id. 
 
RETIRING BOARDS. 
 
 1. Constitution and Composition. — "The Secretary 
 of War, under the direction of the President, shall, from 
 time to time, assemble an Army retiring board, ^ con- 
 sisting of not more than nine nor less than five officers, 
 two-fifths of whom shall be selected from the Medical 
 Corps. The board, excepting the officers selected from 
 the Medical Corps, shall be composed, as far as may be, 
 of seniors in rank to the officer whose disability is in- 
 quired of. ' ' '^ 
 
 2. The provision of the statute as to the rank of the 
 members is directory only, and the decision of the con- 
 vening authority, as evidenced by the selection of the 
 members of the board, is conclusive. 
 
 3. Retiring boards are convened by the Secretary of 
 War, who, in the absence of any statutory authority, 
 under the custom of the service, appoints a recorder. 
 The recorder is not charged with any specific function 
 other than to record the proceedings of the board. He 
 will, however, carry out such instructions as may be 
 given him by the board and may be required by the 
 latter to collect evidence, present it to the board, exam- 
 ine the witnesses and, generally speaking, conduct the 
 case for the Government. 
 
 A stenographic reporter for a retiring board can only 
 be employed on the authority of the Secretary of War 
 obtained in advance of the employment. The authority 
 must be filed with the voucher on which payment is 
 made. The form of voucher used will be that provided 
 
 1 For procedure as to retirement on examination for promotion see page 
 97, and for form for record of retiring board see page 166, post. 
 
 2 Sec. 1246, K. S. 
 
 (89) 
 
90 RETIRING BOARDS. 
 
 for the payment of reporters for general courts-martial 
 with the necessary changes in the wording of the form.^ 
 
 4. Right to a Hearing. — " Except in cases where an 
 officer may be retired by the President upon his own 
 application, or by reason of his having served forty-five 
 years, or of his being sixty-two years old, no officer shall 
 be retired from active service, nor shall an officer, in 
 any case, be wholly retired from the service, without a 
 full and fair hearing before an Army retiring board, if, 
 upon due summons, he demands it." '^ 
 
 5. This entitles an officer subject to be thus retired, to 
 appear before the board, with counsel if desired, and to 
 introduce testimony of his own, and to cross-examine 
 the witnesses examined by the board, including the 
 medical members of the board who may have taken 
 part in the medical examination and have stated or re- 
 ported to the board the result of the same. If the officer 
 does not elect to appear before the board when sum- 
 moned, he waives the right to a hearing, and can not 
 properly take exception to a conclusion arrived at in 
 his absence.^ 
 
 6. Section 1253, Revised Statutes, does not authorize 
 the President to send a case back to a retiring board 
 after he has once approved and acted upon its report; 
 such approval and action determines that the officer 
 has had " a full and fair hearing."-' 
 
 1 For form of voucher see page 186, post. 
 
 2 Sec. 1253, R. S.; sec. 17, act August 13, 1861. 
 « Digest Opin. J. A. G., § 2197. 
 
 4 Miller's Case, 19 Ct. Cls., 338; McBlair's case, id., 528. In both of these 
 cases the officers had been wholly retired, and their successors had been 
 appointed and confirmed. 
 
 Attorney General Devens held where a naval officer having appeared 
 before an examining board (organized under sees. 1493-1505, R. S.), and, 
 the examination being temporarily suspended, was granted permission to 
 go home and to be absent until notified by the board to appear, and he 
 failed to receive this notice until after the examination, which was re- 
 sumed during his absence, had been concluded, and the proceedings and 
 findings of the board were approved by the President and his order in the 
 case duly executed by the retirement of the officer (under sec. 1447, K. S.), 
 but the vacancy created by such retirement remained unfilled, and no rights 
 of any other person had intervened, that the action of the Tiesident could 
 be revoked and the officer allowed a hearing. (10 Opin., 2U.) 
 
RETIRING BOARDS. 91 
 
 7. Challenge.— The statutory right to a " fair hear- 
 ing" includes the right to a hearing by an impartial 
 board, and therefore the right to challenge for cause. 
 
 8. Oaths.— The members of a retiring board " shall be 
 sworn in every case to discharge their duties honestly 
 and impartially.'"' The oath is administered by the 
 recorder. 
 
 The following form of oath complies with the statute: 
 " You [naming the members] do swear that you will 
 honestly and impartially discharge your duties as mem- 
 bers of this board in the matter now before you. So 
 help you God." 
 
 9. The presiding officer of the board administers the 
 following oath to the recorder: 
 
 "You [naming him] do swear that you will, accord- 
 ing to your best ability, accurately and impartially 
 record the proceedings of the board and the evidence to 
 be given in the case in hearing. So help you God." 
 
 10. Powers. — A retiring board may inquire into and 
 determine the facts touching the nature and occasion of 
 the disability of any officer who appears to be incapable 
 of performing the duties of his office, and shall have 
 such powers of a court-martial and of a court of inquiry 
 as may be necessary for that purpose. "In the execu- 
 tion of the duty thus imposed by law, the board is re- 
 quired to ascertain the nature and extent of the dis- 
 ability and its character and effect, as temporary or 
 permanent. The evidence upon which to base its find- 
 ings in this regard should be derived chiefly but not 
 exclusively from the report of the medical officers and 
 from the authenticated extracts from the departmental 
 records which show the cases in which the officer has 
 received medical or surgical treatment during his con- 
 nection with the military service.""^ 
 
 11. The investigation of a retiring board is not re- 
 stricted by any statute of limitation. It may inquire 
 
 iSec. 1247, K. S. "- Cir., W. D., Feb. 27, 1904. 
 
92 RETIRING BOARDS. 
 
 into the matter of a disability, however long since it 
 may have originated.^ 
 
 12. "The provision (of section 1248, Revised Statutes) 
 that the board ' shall have such powers of a court- 
 martial and of a court of inquiry as may be necessary,' 
 etc., is indefinite, but has given rise to but little ques- 
 tion in practice. Construing it in connection with the 
 other provisions cited, its evident intention is seen to 
 be that the board shall have and exercise such powers 
 of a ' court ' as may be requisite to insure a full inves- 
 tigation, to afford a fair hearing, and to enable it satis- 
 factorily to determine the questions referred. Thus it 
 is properly authorized and empowered to call for and 
 entertain such testimony of witnesses, depositions, docu- 
 ments, or papers, as may be material to establish or 
 illustrate the nature or extent of the disability, to pass 
 upon questions of admissibility of evidence, to grant 
 continuances, to give the officer ordered before it a rea- 
 sonable opportunity of defense if desired, to find and 
 report in his absence if he fail to appear; and further to 
 determine the relevancy and validity of challenges to 
 its members and punish acts in the nature of contempt, 
 according to Arts. 86 and 88 (A. W.), if necessary to an 
 impartial and complete inquiry. But the board can not 
 entertain a charge of a military offense as such, nor 
 assume to try. The disability which it is to inquire into 
 is an existing physical or mental incapacity, not a moral 
 defect or a criminal amenability. If the case be one 
 calling for trial and punishment, it should be referred 
 to a court-martial."' 
 
 13. "The board having established the fact of inca- 
 pacity for active service must seek the cause of such 
 incapacity and determine whether the cause so ascer- 
 tained is an incident of service; that is, a thing which 
 inseparably belongs to, is connected with, or inheres in 
 the military service. Battles, marches, the perform- 
 ance of the several duties in garrison or in the field which 
 
 1 Digest Opin. J. A. G., § 2193. 
 
 2 Wiuthrop's Military Law and Precedents, page 765; Digest Opin. J. A. 
 G., § 2192. 
 
RETIRING BOARDS. 93 
 
 are imposed upon officers of the line or staff by law, 
 regulations, the lawful orders of competent military- 
 superiors, by an established custom, or by the exigen- 
 cies or necessities of the military service; all these make 
 up and constitute the ' incidents of service,' one or more 
 of which must be ascertained by the board as the deter- 
 mining cause of an incapacitating disability. If the 
 disabling cause be a wound or injury, the wound or in- 
 jury must have resulted from an incident of the service; 
 if it be a disease, the disease must have been the result 
 of an incident or a succession or aggregation of incidents 
 of the service; in other words, the board must pass from 
 the disability to the occasion or circumstance of which 
 it is the direct result, and that occasion or circumstance 
 must be a thing so inseparably associated with the mili- 
 tary service, so directly connected with it and growing 
 out of it as to entitle it to be regarded as an incident of 
 the service. 
 
 "If an officer participates in military operations, or 
 serves in a locality where the climatic or other causes 
 are such as to induce a particular form of disease, and 
 having taken due and reasonable precautions to prevent 
 it contracts such disease, then if disability results its 
 cause would properly be regarded as an incident of serv- 
 ice within the meaning of the statute. But when a 
 disease is contracted, not due to exposure or to the exist- 
 ence of conditions such as have been described, the board 
 will require the production of testimony showing that 
 it is not due to vicious or irregular habits, and that there 
 has been neither carelessness nor contributory negli- 
 gence on the part of the officer, who is bound as a pru- 
 dent man and a conscientious public officer to use every 
 proper means at his command to preserve his health and 
 to maintain his physical efficiency under all conditions 
 of service."^ 
 
 14. When the retirement is desired by the officer be- 
 fore the board, it is proper, at the beginning of the hear- 
 ing, for him to state under oath the nature and cause of 
 
 iCir., W, D., Feb. 27 1904. 
 
94 RETIRING BOARDS. 
 
 his disability, the recorder or board asking such ques- 
 tions as will help to bring out the facts. He may also 
 be interrogated as to his military history, if it be deemed 
 desirable to do so. When the retirement is opposed by 
 him, he can not be required to testify against himself. 
 
 15. The senior medical officer of the board is the next 
 witness. He is called on to submit the result {reduced 
 to writing and signed by the medical officers) of the 
 medical examination of the officer before the board, and 
 is interrogated as to the cause and permanency of the 
 disability and the degree of incapacity for active service. 
 The other medical officer or officers (if there be more 
 than two) are similarly examined. Whether the disa- 
 bility is an incident of service,^ is a question for the 
 board to determine on the facts. 
 
 16. The recorder then submits the documentary evi- 
 dence which hs has received from The Adjutant- G-en- 
 eral's Office. It is not the practice of retiring boards to 
 verify the correctness of these records under oath. Other 
 evidence may then be introduced. The officer before 
 the board has the right, as above stated, to object to 
 improper evidence and to interrogate the witnesses, and 
 may himself introduce evidence, if legal, material, and 
 relevant, and may submit a statement in writing, if he 
 desires to do so. 
 
 17. Finding. — " When the board finds an officer inca- 
 pacitated for active service, it shall also find and report 
 the cause '^ which, in its judgment, has produced his 
 
 1 As to what "incident to the service" means, see also page 97, post, 
 note 3. 
 
 - It has been held that the "cause" of "incapacity" intended in section 
 1249, Revised Statutes, is a physical cause; that moral obliquity was not had 
 in view; and that the matter of the financial integrity of the oflicer was 
 beyond the jurisdiction of the board. So, held that the board was not 
 authorized to recommend the retirement of an officer because he did not 
 pay his debts. Held also that the inability of a disbursing officer to furnish 
 a bond when duly required to do so was not sufficient ground for his retire- 
 ment. (Digest Opin. J. A. G., § 2203.) 
 
 Held that the law — sections 1248 and 1249, Revised Statutes — contemplated 
 an existing aTid not a purely prospective and contingent incapacity; and 
 that an inquiry into an officer's general efficiency could be pertinent only 
 in so far as it could be regarded as going to show that his inetliciency, if 
 found was the result of an iropuirment o* health. {Id., § 2204.) 
 
RETIRING BOARDS. 95 
 
 incapacity, and whether such cause is an incident of 
 service." ^ 
 
 18. The board is closed for deliberation and deter- 
 mines whether the officer before it for examination is 
 incapacitated for active service or not. (It is not neces- 
 sary that the recorder retire. ) When it finds the officer 
 incapacitated for active service, it must also find and 
 report the cause which, in its judgment, has produced 
 the incapacity, and whether such cause is an incident 
 of service.^ The board may modify its findings ana 
 decision at any time before forwarding its record of 
 proceedings. The finding should be framed in narrative 
 
 ■ form, and should not embrace any recommendation. 
 
 19. Action on Finding. — " The proceedings and deci- 
 sion of the board shall be transmitted to the Secretary of 
 War, and shall be laid by him before the President for 
 his approval or disapproval and orders in the case." '^ 
 
 20. In any case in which, in the President's judgment, 
 the investigation has not been complete, " or the finding 
 is not justified by the facts, he may, before acting there- 
 on, return the proceedings to the board for a further 
 inquiry or hearing, or a correction of its conclusions, as- 
 in a case of a court-martial. But not being a court, and 
 the inquiry not being a triaJ, the board, upon such 
 revision, may, and should if so directed, reexamine 
 former witnesses or take new testimony. 
 
 21. "It is now fully settled that where the President 
 has finally approved the finding of a retiring board, and 
 has acted thereupon by making his order retiring the 
 officer in one of the forms authorized by the statute, his 
 power is exhausted. He can not then reopen the case, 
 nor, though the order made was mistaken or unjust, can 
 he revoke it and substitute another otherwise retiring 
 the officer. If he does so, the second order will be void 
 and inoperative. The action of the President, whose 
 authority in such a case is, in the language of the 
 Supreme Court, ' wholly dependent upon the letter of 
 
 1 Sec. 1249, R. S. - Sec. 1250, K. S. 
 
96 RETIREMENT. 
 
 positive enactment,' is ' equivalent to the judgment of 
 an appropriate tribunal upon the facts as found, and 
 can not be disturbed.' If injustice has been done, 
 relief can be afforded by Congress alone." ^ 
 
 22. " The finding of a retiring board, approved by the 
 President, is conclusive as to the facts. The board finds 
 the facts and the President approves or disapproves the 
 finding, but the law does not empower him to modify 
 the finding or to substitute a different one. There is 
 here a judicial power vested in the two, and not in the 
 President acting singly, and when the power has been 
 once fully exercised it is exhausted as to the case." ^ 
 
 RETIREMENT. 
 
 1. "When any officer has become incapable of per- 
 forming the duties of his ofifice, he shall be either retired 
 from active service, or wholly retired from the service, 
 by the President, as hereinafter provided. "^ 
 
 iWinthrop's Military Law and Precedents, page 767; United States r. 
 Burchard, 125 U. S., 179, 180; BurcUard v. United States, 19 Ct. CIs., 137; 
 Potts *•. United States, 125 U. S., 175; Miller v. United States, 19 Ct. CIs., 
 338; McBlair v. United States, id., 528; 19 Opin. Atty. Gen., 203. "The 
 finding of the retiring board, approved by the President, is the judgment 
 of the tribunal created under the law to determine such questions." (Potts v. 
 United States, supra.) 
 
 " The finding, approved by the President, fixes the fact that an officer's 
 incapacity was or was not caused by the service, and the fact once fixed can 
 not be reviewed." (Burchard v. United States, supra.) 
 
 " Upou the report of the board, the President had the right to adopt one 
 of three coursfes with the claimant; he could disapprove the finding, and 
 thereby retain the claimant in the active service; retire him from active 
 service, or wholly retire him from the Army, as he might determine. He 
 had a power to exercise in the disposition of the report, and his action 
 thereon made, in law, the complete exercise of the full measure of authority 
 provided by the statute. It is not a continuing power, but is perfonned to 
 the extent of its existence by the one act of the President." (McBlair v. 
 United States, mpra. And compare E.t parte Ilandolph, 2 Brock., 473; 
 People V. Wayuesville, 88 111., 470, cited in 19 Opin. Atty. Gen., 209.) 
 
 2 Digest Opin. J. A. G., § 2206. See U. S. r. Burchard, 125 U. S., 179. 
 
 3 Sec. 1245, K. S. (see sees. 1246 to 1258, R. S., inclusive). This section 
 is taken from sec. 16 of " an act providing for the better organization of the 
 Military Establishment," approved August 3, 1861, which prescribed, "that 
 if any commissioned officer of the Army, or of the Marine Corps, shall have 
 become, or shall hereafter become, incapable of performing the duties of 
 his office, he shall be placed upon the retired list and withdrawn from active 
 service and command and from the line of promotion." 
 
RETIREMENT. 97 
 
 2. ' ' When a retiring board finds that an officer is inca- 
 pacitated for active service, and that his incapacity is 
 the result of an incident of service, and such decision is 
 approved by the President, said officer shall be retired 
 from active service and placed on the list of retired 
 officers." ^ 
 
 3. "When the board finds that an officer is incapaci- 
 tated for active service, and that his incapacity is not 
 the result of any incident of service, and its decision is 
 approved by the President, the officer shall be retired 
 from active service, or wholly retired from the service, 
 as the President may determine." - 
 
 RETIREMENT UNDER ACT OF OCTOBER 1, 1890 
 
 1. The act of October 1, 1890, providing for examina^ 
 tion for promotion in the Army directs: "That should 
 the officer fail in his physical examination and be found 
 incapacitated for service by reason of physical disability 
 contracted in line'' of duty, he shall be retired with the 
 
 1 Sec. 1251, R. S. It does not affect the authority to retire under sec. 1251," 
 R. S., that the incapacity of the officer may have been found to have re- 
 sulted from a wouud received by him while in the volunteer service before 
 entering the Regular Army. 
 
 -Sec. 1252, R. S. Under sec. 1252, R. S., an officer may, in the discretion 
 of the President, legally be retired by reason of an incapacity resulting 
 from habitual drunkenness. 
 
 Sees. 1251 and 1252, R. S., are based on sec. 17 of the act cited in note 3, 
 page 94, ante, which prescribed as follows: " The board, whenever it finds an 
 oflRcer incapacitated for active service, will report whether, in its judgment, 
 the said incapacity result from long and faithful service, from wounds or injury 
 received in the line of duty, from sickness or exposure therein, or from any 
 other incident of service. If so, and the President approve such judgment, 
 the disabled officer shall thereupon be placed upon the list of retired officers, 
 according to the provisions of this act. If otherwise, and if the President 
 concur in opinion with the board, the officer shall be retired as above, 
 either with his pay proper alone, or with his service rations alone, at the 
 discretion of the President, or he shall be wholly retired from the service, 
 with one year's pay and allowances." 
 
 The incapacity mentioned is a physical incapacity. (Digest Opiu. J. A. G., 
 §§2203,2208.) 
 
 3The phrase "in line of duty," as used in this act, should be construed 
 as having the same meaning with " incident of service," as used in sec. 1249, 
 R. S. 
 
 The following is an extract from a report of the Judge- Advocate-General 
 which, although relating to enlisted men, is in principle applicable in the 
 50963 7 
 
98 RETIREMENT. 
 
 rank to which his seniority entitled him to be promoted; 
 but if he should fail for any other reason he shall be 
 suspended from promotion for one year, when he shall 
 
 case of commissioned officers. The action of the War Department on this 
 report was in effect a confirmation of the conclusion arrived at: 
 
 " Formerly the expression 'line of duty' was much more strictly con- 
 strued than now. Attorney General Cushing explained it thus: 
 
 " ' The phrase " line of duty " is an apt one, to denote that an act of duty 
 performed must have relation of causation, mediate or immediate, to the 
 wound, the casualty, the injury, or the disease, producing disability or 
 death. 
 
 ***** 
 
 " ' Every person who enters the military service of the country — officer, 
 soldier, sailor, or marine — takes upon himself certain moral and legal en- 
 gagements of duty, which constitute his official or professional obligations. 
 While in the performance of those things, which the law requires of him 
 as military duty, he is in the line of his duty. But, at the same time, though 
 a soldier or sailor, he is not the less a man and a citizen, with private rights 
 to exercise and duties to perform ; and, while attending to these things, he 
 is not in the line of his public duty. In addition to this, a soldier or sailor, 
 like any other man, has the physical faculty of doing many things, which 
 are in violation of duties, either general or special; and in doing these 
 things he is not acting in the line of his duty. Around all those acts of the 
 soldier or sailor which are official in their nature, the pension law draws a 
 legislative line, and then they say to the soldier or sailor: If, while per- 
 forming acts which are within that line, you thereby incur disability or 
 death, you, or your widow or children, as the case may be, shall receive a 
 pension or other allowance; but not if the disability or death arise from acts 
 performed outside of that line, that is, absolutely disconnected from, and 
 wholly independent of, the performance of duty. Was the cause of dis- 
 ability or death a cause within the line of duty or outside of it ? Was that 
 cause appertaining to, dependent upon, or otherwise necessarily and essen- 
 tially connected with, duty within the line, or was it unappurtenant, inde- 
 pendent, and not of necessary and essential connection ? That, in my 
 judgment, is the true test-criterion of the class of pension cases under con- 
 sideration.' (7 Opiu. Atty. Gen., 161, 162.) 
 
 "A more liberal construction was the earlier one of Attorney General 
 Rush. Upon this point he said: — 
 
 " 'I should presume, however, that every officer in full commission, and 
 not on furlough, must be considered in the line of his duty, although, at 
 the moment, no particular or active employment is devolved upon him. 
 The same of a soldier who is kept in pay, for it is presupposed of both the 
 one and the other that they are at all times prepared for duty; and it is 
 surely of indispensable obligation upon them to keep themselves detached 
 from other pursuits, so as to be ready at a moment to answer any call 
 emanating from those who may be authorized to command them.' (1 Opin. 
 Atty. Gen., 182.) 
 
 " But neither of these views has been found to be sufficient, and there- 
 fore neither has been followed in practice. 
 
 " By (the fourth section of) an act of March 3, 1865 (13 Stat., 488), it was 
 provided: — 
 
 " ' That every noncommissioned officer, private, or other person, who 
 has been, or shall hereafter be, discharged from the army of the United 
 
RETIREMENT. 99 
 
 be reexamined, and in case of failure on such reexami- 
 nation he shall be honorably discharged, with one year's 
 pay, from the Army.'' 
 
 2. All questions relating to the physical condition of 
 an officer shall be determined by the full board. 
 
 The physical examination will be thorough, and will 
 include the ordinary analysis of the urine. 
 
 states by reason of wouuds received in battle, on skirmish, on picket, or in 
 action, or in the line of dutj', shall be entitled to receive the same bounty 
 as if he had served out his full term.' 
 
 " And by an act approved April 12, 1866 (14 Stat., 352), it was declared — 
 
 " ' That the true intent and meaning of the words " or in the line of 
 duty," used in the fourth section of the act approved March 3, 1865, * * * 
 requires that the benefit of the provision of said section shall be extended 
 to any enlisted man or other person entitled by law to bounty who has 
 been or may be discharged by reason of a wound received while actually in 
 service under military orders, not at the time on furlough or leave of 
 absence, nor engaged in any unlawful or unauthorized act or pursuit.' 
 
 " In this enactment we have a legislative construction of the expression 
 ' in the line of duty,' as used in the earlier legislation cited. To be in the 
 line of duty, in the sense of that legislation, the soldier must be actually in 
 service under military orders, and he must not be on furlough nor engaged 
 in any unlawful or unauthorized act or pursuit. For the purpose of that 
 legislation this legislative construction would be conclusive, but it is not 
 necessarily so in determining the soldier's condition in other connections — 
 his right of admission to the Soldiers' Home, for example. In determining 
 his general military status or condition in respect to the question under 
 consideration a further limitation has in practice been recognized, namely, 
 that the disability must not be the result of the unlawful or unauthorized 
 act, as a direct or a contributory cause. A circular of the Surgeon Gen- 
 eral's Office, dated May 11, 1893, approved by the Secretary of War, states 
 the matter as follows: 
 
 " ' It is just to assume that all diseases coutracted or injuries received 
 while an officer or soldier is in the military service of the United States 
 occur in the line of duty unless the surgeon knows, first, that the disease 
 or injury existed before entering the service; second, that it was contracted 
 while absent from duty on furlough or otherwise; or, third, that it occurred 
 in consequence of willful neglect or immoral conduct of the sick man 
 himself.' 
 
 " I am inclined to believe that the principle as stated in the act of April 
 12, 1866, modified by the limitation indicated, is as accurate a general 
 statement of the meaning in military administration of the expression 'in 
 the line of duty' as can be given. It is, however, subject to exceptions. 
 Thus a soldier may be on furlough and yet in the line of duty, as when he 
 is en route to his station at the expiration of his furlough, or when during 
 his furlough he is, in compliance with orders, on his way to a place to 
 report his whereabouts. So, certain acts may in a measure be contributory 
 causes of disability, and yet not to such a degree as to bring the case 
 within the general rule, as when the disability is the result of negligence, 
 but the negligence is not of such a degree as to amount to culpable con- 
 tributory negligence. Such cases can only be properly decided on their 
 own merits." 
 
100 RETIREMENT. 
 
 Defects of vision, resulting from errors of refraction, 
 that are not excessive, and that may be entirely cor- 
 rected by glasses, do not disqualify, unless they are due 
 to or are accompanied by organic disease. 
 
 3. When the board finds an officer physically inca- 
 pacitated for service, it shall conclude the examination 
 by finding and reporting the cause which, in its judg- 
 ment, has produced his disability, and whether such 
 disability was contracted in the line of duty. 
 
 4. The record in each case where an officer is found 
 physically disqualified shall be authenticated by all the 
 members, including medical officers, and the recorder. 
 In all other cases the medical officer will not be required 
 to sign the proceedings. If any member dissents from 
 the opinion of the board, it will be so stated. 
 
 5. Any officer reported by a retiring board as inca- 
 pacitated by reason of physical disability, the result of 
 an incident of service, shall, if the proceedings of said 
 board are approved by the President, be regarded as 
 physically unfit for promotion within the meaning of 
 section 3 of the act of October 1, 1890, and will be retired 
 with the rank to which his seniority entitles him when- 
 ever a vacancy occurs that otherwise would result in 
 his promotion on the active list; provided, that before 
 the occurrence of such vacancy he shall not have been 
 placed on the retired list.^ 
 
 6. The finding of the board of examination that the 
 officer is incapacitated for duty is not per se final, but 
 must be reported for the action of the Secretary of War 
 and passed upon by him. Where the finding and report 
 of the board have been approved but not yet executed 
 by actual retirement, there may intervene contingencies 
 which would supersede such proceeding— as the trial 
 and dismissal of the officer by court-martial, or the 
 arising of new causes which might make proper that the 
 question of his disability be inquired into by a retiring 
 
 ^G. 0. 41, A. G. 0., 1897, which also contains detailed instructions as to 
 procedure of board of examinations in general. 
 
RETIREMENT. 101 
 
 board convened under section 1246, Revised Statutes. 
 But unless some such new occasion and ground of dis- 
 qualification be presented, the action of the Secretary 
 of War, in approving the report, remains final and ex- 
 haustive, and the officer is entitled to be retired under 
 the act of 1890, and can not legally be ordered before 
 such retiring board. ^ 
 
 . 1 Digest Opin. J. A. G., § 2207. 
 
ARTICLES OF WAR 
 
 Section 1342, R, S. The armies of the United States 
 shall be governed by the following rules and articles. 
 The word officer, as used therein, shall be understood to 
 designate commissioned officers, the word soldier shall be 
 understood to include noncommissioned officers, musi- 
 cians, artificers, and privates, and other enlisted men, 
 and the convictions mentioned therein shall be under- 
 stood to be convictions by court-martial. 
 
 Article 1. Every officer now in the Army of the 
 United States shall, wjthin six months from the passing 
 of this act, and every officer hereafter appointed shall, 
 before he enters upon the duties of his office, subscribe 
 these rules and articles. 
 
 Art. 2. These rules and articles shall be read to every 
 enlisted man at the time of, or within six days after, his 
 enlistment, and he shall thereupon take an oath or affir- 
 mation, in the following form: ''I, A.B.,do solemnly 
 swear (or affirm) that I will bear true faith and alle- 
 giance to the United States of America: that I will serve 
 them honestly and faithfully against all their enemies 
 whomsoever; and that I will- obey the orders of the 
 President of the United States and the orders of the 
 officers appointed over me, according to the rules and 
 articles of war." This oath may be taken before any 
 commissioned officer of the Army. 
 
 Art. 3. Every officer who knowingly enlists or mus- 
 ters into the military service any minor over the age of 
 16 years without the written consent of his parents or 
 guardians, or any minor under the age of 10 years, or 
 any insane or intoxicated persons, or any deserter from 
 the military or naval service of the United States, or 
 any person who has been convicted of any infamous 
 
 (102) 
 
UNIVERSITY 
 
 OF 
 
 " ARTICLES OF WAR. 103 
 
 criminal offense, shall, upon conviction, be dismissed 
 from the service, or suffer such other punishment as a 
 court-martial may direct. 
 
 Art. 4. No enlisted man, duly sworn, shall be dis- 
 charged from the service without a discharge in writing, 
 signed by a field officer of the regiment to which he 
 belongs, or by the commanding officer, when no field 
 officer is present; and no discharge shall be given to any 
 enlisted man before his term of service has expired, 
 except by order of the President, the Secretary of War, 
 the commanding officer of a department, or by sentence 
 of a general court-martial. 
 
 Art. 5. Any officer who knowingly musters as a soldier 
 a person who is not a soldier shall be deemed guilty of 
 knowingly making a false muster, and punished accord- 
 ingly. 
 
 Art. 6. Any officer who takes money, or other thing, 
 by way of gratification, on mustering any regiment, 
 troop, battery, or company, or on signing muster rolls, 
 shall be dismissed from the service, and shall thereby be 
 disabled to hold any office or employment in the service 
 of the United States. 
 
 Art. 7. Every officer commanding a regiment, an in- 
 dependent troop, battery, or company, or a garrison, 
 shall, in the beginning of every month, transmit through 
 the proper channels, to the Department of War, an 
 exact return of the same, specifying the names of the 
 officers then absent from their posts, with the reasons 
 for and the time of their absence. And any officer who, 
 through neglect or design, omits to send such returns, 
 shall, on conviction thereof, be punished as a court- 
 martial may direct. 
 
 Art. 8. Every officer who knowingly makes a false 
 return to the Department of War, or to any of his supe- 
 rior officers, authorized to call for such returns, of 
 the state of the regiment, troop, or company, or garri- 
 son under his command; or of the arms, ammunition, 
 
104 ARTICLES OF WAR. 
 
 clothing, or other stores thereunto belonging, shall, on 
 conviction thereof before a court-martial, be cashiered.^ 
 
 Art. 9. All public stores taken from the enemy shall 
 be secured for the service of the United States; and 
 for neglect thereof the commanding officer shall be 
 answerable. 
 
 Art. 10. Every officer commanding a troop, battery, 
 or company, is charged with the arms, accouterments, 
 ammunition, clothing, or other military stores belong- 
 ing to his command, and is accountable to his colonel 
 in case of their being lost, spoiled, or damaged other- 
 wise than by unavoidable accident, or on actual service. 
 
 Art. 11. Every officer commanding a regiment or an 
 independent troop, battery, or company, not in the 
 field, may, when actually quartered vdth such com- 
 mand, grant furloughs to the enlisted men, in such 
 numbers and for such time as he shall deem consistent 
 with the good of the service. Every officer command- 
 ing a regiment, or an independent troop, battery, or 
 company, in the field, may grant furloughs not exceed- 
 ing thirty days at one time, to five per cent of the 
 enlisted men, for good conduct in the line of duty, but 
 subject to the approval of the commander of the forces 
 of which said enlisted men form a part. Every com- 
 pany officer of a regiment, commanding any troop, 
 battery, or company not in the field, or commanding in 
 any garrison, fort, post, or barrack, may, in the absence 
 of his field officer, grant furloughs to the enlisted men, 
 for a time not exceeding twenty days in six months, 
 and not to more than two persons to be absent at the 
 same time. 
 
 Art. 12. At every muster of a regiment, troop, bat- 
 tery, or company, the commanding officer thereof shall 
 give to the mustering officer certificates, signed by him- 
 self, stating how long absent officers have been absent 
 and the reasons of their absence. And the commanding 
 officer of every troop, battery, or company shall give 
 
 1" Cashiered" and "dismissed I'rom the service" are now considered 
 practically synonymous. 
 
ARTICLES OF WAR. 105 
 
 like certificates, stating how long absent noncommis- 
 sioned officers and private soldiers have been absent 
 and the reasons of their absence. Such reasons and 
 time of absence shall be inserted in the muster rolls 
 opposite the names of the respective absent officers and 
 soldiers, and the certificates, together with the muster 
 rolls, shall be transmitted by the mustering officer to 
 the Department of War as speedily as the distance of 
 the place and muster will admit. 
 
 Art. 13. Every officer who signs a false certificate, 
 relating to the absence or pay of an officer or soldier, 
 shall be dismissed from the service. 
 
 Art. 14. Any officer who knowingly makes a false 
 muster of man or horse, or who signs, or directs, or 
 allows the signing of any muster roll, knowing the 
 same to contain a false muster, shall, upon proof thereof 
 by two witnesses, before a court-martial, be dismissed 
 from the service, and shall thereby be disabled to hold 
 any office or employment in the service of the United 
 States. 
 
 Art. 15. Any officer who, willfully or through neg- 
 lect, suffers to be lost, spoiled, or damaged, any military 
 stores belonging to the United States, shall make good 
 the loss or damage, and be dismissed from the service. 
 
 Art. 16. Any enlisted man who sells, or willfully or 
 through neglect wastes the ammunition delivered out 
 to him, shall be punished as a court-martial may direct. 
 
 Art. 17. Any soldier who sells, or through neglect 
 loses or spoils his horse, arms, clothing, or accouter- 
 ments, shall be punished as a court-martial may ad- 
 judge, subject to such limitations as may be prescribed 
 by the President by virtue of the power vested in him.^ 
 
 Art. 18. Any officer commanding in any garrison, 
 fort, or barracks of the United States who, for his pri- 
 vate advantage, lays any duty or imposition upon or is 
 interested in, the sale of any victuals, liquors, or other 
 
 1 17th A. W., as amended by act of July 27, 1892; see G. 0. 57, A. G. 0., 
 1892. 
 
106 ARTICLES OF WAR. 
 
 necessaries of life, brought into such garrison, fort, or 
 barracks, for the use of the soldiers, shall be dismissed 
 from the service. 
 
 Art. 19. Any officer who uses contemptuous or disre- 
 spectful words against the President, the Vice-President, 
 the Congress of the United States, or the chief magis- 
 trate or legislature of any of the United States in which 
 he is quartered, shall be dismissed from the service, or 
 otherwise punished, as a court-martial may direct. 
 Any soldier who so offends shall be punished as a court- 
 martial may direct. 
 
 Art. 20. Any officer or soldier who behaves himself 
 with disrespect toward his commanding officer shall be 
 punished as a court-martial may direct. 
 
 Art. 21. Any officer or soldier who, on any pretense 
 whatsoever, strikes his superior officer, or draws or lifts 
 up any weapon, or offers any violence against him, being 
 in the execution of his office, or disobeys any lawful com- 
 mand of his superior officer,^ shall suffer death, or such 
 other punishment as a court-martial may direct. 
 
 Art. 22. Any officer or soldier who begins, excites, 
 causes, or joins in any mutiny or sedition, in any troop, 
 battery, company, party, post, detachment, or guard, 
 shall suffer death, or such other punishment as a court- 
 martial may direct. 
 
 Art. 23. Any officer or soldier who, being present at 
 any mutiny or sedition, does not use his utmost endeavor 
 to suppress the same , or having knowledge of any in- 
 tended mutiny or sedition, does not, without delay, give 
 information thereof to his commanding officer, shall 
 suffer death, or such other punishment as a court-martial 
 may direct. 
 
 Art. 24. All officers, of what condition soever, have 
 power to part and quell all quarrels, frays, and disorders, 
 whether among persons belonging to his- own or to 
 
 1 Disobedience of an order of a-contract surgeon, of a dental surgeon, of a 
 veterinarian, and a noncommissioned officer should be charged under the 62d 
 Article of War; see Form d, page 1^1, pod. Disobedience of an order by a 
 military convict should also be charged under the 62d Article of War. 
 
 2 Sic in Revised Statutes. 
 
ARTICLES OF WAR. 107 
 
 another corps, regiment, troop, battery, or company, and 
 to order officers into arrest, and noncommissioned offi- 
 cers and soldiers into confinement, who take part in the 
 same, until their proper superior officer is acquainted 
 therewith. A nd whosoever, being so ordered , refuses to 
 obey such officer or noncommissioned officer, or draws 
 a weapon upon him, shall be punished as a court-martial 
 may direct. 
 
 Art. 25. No officer or soldier shall use any reproachful 
 or provoking speeches or gestures to another. Any offi- 
 cer who so offends shall be put in arrest. Any soldier 
 who so offends shall be confined, and required to ask 
 pardon of the party offended in the presence of his com- 
 manding officer. 
 
 Art. 26. No officer or soldier shall send a challenge to 
 another officer or soldier to fight a duel, or accept a 
 challenge so sent. Any officer who so offends shall be 
 dismissed from the service. Any soldier who so offends 
 shall suffer such punishment as a court-martial may 
 direct. 
 
 Art. 27. Any officer or noncommissioned officer, com- 
 manding a guard, who, knowingly and willingly, suffers 
 any person to go forth to fight a duel shall be punished 
 as a challenger; and all seconds or promoters of duels, 
 and carriers of challenges to fight duels, shall be deemed 
 principals, and punished accordingly. It shall be the 
 duty of any officer commanding an army, regiment, 
 troop, battery, company, post, or detachment, who 
 knows or has reason to believe that a challenge has 
 been given or accepted by any officer or enlisted man 
 under his command, immediately to arrest the offender 
 and bring him to trial. 
 
 Art. 28. Any officer or soldier who upbraids another 
 officer or soldier for refusing a challenge shall himself 
 be punished as a challenger; and all officers and soldiers 
 are hereby discharged from any disgrace or opinion of 
 disadvantage which might arise from their having re- 
 fused to accept challenges, as they will only have acted 
 
108 ARTICLES OF WAR. 
 
 in obedience to the law, and have done their duty as 
 good soldiers, who subject themselves to discipline. 
 
 Art. 29. Any officer who thinks himself wronged by 
 the commanding officer of his regiment, and, upon due 
 application to such commander, is refused redress, may 
 complain to the general commanding in the State or 
 Territory where such regiment is stationed. The gen- 
 eral shall examine into said complaint and take proper 
 measures for redressing the wrong complained of; and 
 he shall, as soon as possible, transmit to the Depart- 
 ment of War a true statement of such complaint, with 
 the proceedings had thereon. 
 
 Art. 30. Any soldier who thinks himself wronged by 
 any officer may complain to the commanding officer of 
 his regiment, who shall summon a regimental court- 
 martial for the doing of justice to the complainant. 
 Either party may appeal from such regimental court- 
 martial to a general court-martial; but if, upon such 
 second hearing, the appeal appears to be groundless and 
 vexatious, the party appealing shall be punished at the 
 discretion of said general court-martial.^ 
 
 Art. 31. Any officer or soldier who lies out of his 
 quarters, garrison, or camp, without leave from his 
 
 1 The " regimental court-martial," under the 30th A. W., can not be used 
 as a substitute for a general court-martial or court of inquiry, for it can not 
 try an officer nor make an investigation for the purpose of determining 
 whether he shall be brought to trial. When, if the soldier's complaint 
 should be sustained, the only redress would be a reprimand to the officer, 
 the matter would not be within the jurisdiction of this court. It can only 
 investigate such matters as are susceptible to redress by the doing of justice 
 to the complainant; that is, when in some way he can be set right by put- 
 ting a stop to t-he wrongful condition which the officer has caused to exist. 
 Erroneous stoppages of pay, irregularity of detail, the apparent requirement 
 of more labor than from any other soldiers, and the like, might in this way 
 be investigated and the wrongful condition put an end to. The court will 
 in such cases record the evidence and its conclusions of fact, and recommend 
 the action to be taken. The members of the court (and the judge-advocate) 
 will be sworn faithfully to perform their duties as members (and judge- 
 advocate) of the court, and the proceedings will be recorded, as nearly as 
 practicable, in the same manner as the proceedings of ordinary courts- 
 martial. 
 
ARTICLES OF WAR. 109 
 
 superior officer, shall T)e punished as a court-martial 
 may direct. 
 
 Art. 32. Any soldier who absents himself from his 
 troop, battery, company, or detachment, without leave 
 from his commanding officer, shall be punished as a 
 court-martial may direct. 
 
 Art. 33. Any officer or soldier who fails, except when 
 prevented by sickness or other necessity, to repair, at 
 the fixed time, to the place of parade, exercise or other 
 rendezvous appointed by his commanding officer, or goes 
 from the same, without leave from his commanding of- 
 ficer, before he is dismissed or relieved, shall be punished 
 as a court-martial may direct. 
 
 Art. 34. Any soldier who is found one mile from camp, 
 without leave in writing from his commanding officer, 
 shall be punished as a court-martial may direct. 
 
 Art. 35. Any soldier who fails to retire to his quar- 
 ters or tent at the beating of retreat, shall be punished 
 according to the nature of his offense. 
 
 Art. 36. No soldier belonging to any regiment, troop, 
 battery, or company shall hire another to do his duty for 
 him, or be excused from duty, except in cases of sick- 
 ness, disability, or leave of absence. Every such soldier 
 found guilty of hiring his duty, and the person so hired 
 to do another's duty, shall be punished as a court- 
 martial may direct. 
 
 Art. 37. Every noncommissioned officer who connives 
 at such hiring of duty shall be reduced. Every officer 
 who knows and allows such practices shall be punished 
 as a court-martial may direct. 
 
 Art. 38. Any officer who is found drunk on his guard, 
 party, or other duty, shall be dismissed from the service. 
 Any soldier who so offends shall suffer such punishment 
 as a court-martial may direct. No court-martial shall 
 sentence any soldier to be branded, marked, or tattooed. 
 
 Art. 39. Any sentinel who is found sleeping upon his 
 post, or who leaves it before he is regularly relieved, 
 
110 ARTICLES OF WAR. 
 
 shall suffer death or such other punishment as a court- 
 martial may direct. 
 
 Art. 40. Any officer or soldier who quits his guard, 
 platoon, or division, without leave from his superior 
 officer, except in a case of urgent necessity, shall be 
 punished as a court-martial may direct. 
 
 Art. 41. Any officer who, by any means whatsoever, 
 occasions false alarms in camp, garrison, or quarters, 
 shall suffer death, or such other punishment as a court- 
 martial may direct. 
 
 Art. 42. Any officer or soldier who misbehaves him- 
 self before the enemy, runs away, or shamefully aban- 
 dons any fort, post, or guard, which he is commanded 
 to defend, or speaks words inducing others to do the 
 like, or casts away his arms or ammunition, or quits his 
 post or colors to plunder or pillage, shall suffer death, 
 or such other punishment as a court-martial may direct. 
 
 Art. 43. If any commander of any garrison, fortress, 
 or post is compelled, by the officers and soldiers under 
 his command, to give up to the enemy or to abandon 
 it, the officers or soldiers so offending shall suffer death, 
 or such other punishment as a court-martial may direct. 
 
 Art. 44. Any person belonging to the armies of the 
 United States who makes known the watchword to any 
 person not entitled to receive it, according to the rules 
 and discipline of war, or presumes to give a parole or 
 watchword different from that which he received, shall 
 suffer death, or such other punishment as a court- 
 martial may direct. 
 
 Art. 45. Whosoever relieves the enemy with money, 
 victuals, or ammunition, or knowingly harbors or pro- 
 tects an enemy, shall suffer death, or such other pimish- 
 ment as a court-martial may direct. 
 
 Art. 46. Whosoever holds correspondence with, or 
 gives intelligence to, the enemy, either directly or indi- 
 rectly, shall suffer death, or such other punishment as 
 a court-martial may direct. 
 
 Art. 47. Any officer or soldier who, having received 
 pay, or having been duly enlisted in the service of the 
 
ARTICLES OF WAR. HI 
 
 ITnited States, deserts the same, shall, in time of war, 
 suffer death, or such other punishment as a court-martial 
 may direct; and in time of peace, any punishment, ex- 
 cepting death, which a court-martial may direct. 
 
 Art. 48. Every soldier who deserts the service of the 
 United States shall be liable to serve for such period as 
 shall, with the time he may have served previous to his 
 desertion, amount to the full term of his enlistment; 
 and such soldier shall be tried by a court-martial and 
 punished, although the term of his enlistment may have 
 elapsed previous to his being apprehended and tried. 
 
 Art. 49. Any officer who, having tendered his resigna- 
 tion, quits his post or proper duties, without leave and 
 with intent to remain permanently absent therefrom, 
 prior to due notice of the acceptance of the same, shall 
 be deemed and punished as a deserter. 
 
 Art." 50. No noncommissioned officer or soldier shall 
 enlist himself in any other regiment, troop, or company, 
 without a regular discharge from the regiment, troop, 
 or company in which he last served, on a penalty of 
 being reputed a deserter, and suffering accordingly. 
 And in case any officer shall knowingly receive and 
 entertain such noncommissioned officer or soldier, or 
 shall not, after his being discovered to be a deserter, 
 immediately confine him and give notice thereof to the 
 corps in which he last served, the said officer shall, by a 
 court-martial, be cashiered. 
 
 Art. 51. Any officer or soldier who advises or per- 
 suades any other officer or soldier to desert the service 
 of the United States shall, in time of war, suffer death, 
 or such other punishment as a court-martial may direct; 
 and, in time of peace, any punishment, excepting death, 
 which a court-martial may direct. 
 
 Ajrt. 52. It is earnestly recommended to all officers and 
 soldiers diligently to attend divine service. Any officer 
 who behaves indecently or irreverently at any place of 
 divine worship shall be brought before a general court- 
 martial, there to be publicly and severely reprimanded 
 by the president thereof. Any soldier who so offends 
 
113 ARTICLES OF WAR. 
 
 shall, for his first offense, forfeit one-sixth of a dollar; 
 for each further offense he shall forfeit a like sum, and 
 shall be confined twenty-four hours. The money so for- 
 feited shall be deducted from his next pay, and shall be 
 applied, by the captain or senior officer of his troop, 
 battery, or company, to the use of the sick soldiers of 
 the same. 
 
 Art. 53. Any officer who uses any profane oath or 
 execration shall, for each offense, forfeit and pay one 
 dollar. Any soldier who so offends shall incur the pen- 
 alties provided in the preceding article; and all moneys 
 forfeited for such offenses shall be applied as therein 
 provided. 
 
 Art. 54. Every officer commanding in quarters, garri- 
 son, or on the march, shall keep good order, and, to the 
 utmost of his power, redress all abuses or disorders 
 which may be committed by any officer or soldier under 
 his command; and if, upon complaint made to him of 
 officers or soldiers beating or otherwise ill-treating any 
 person, disturbing fairs or markets, or committing any 
 kind of riot, to the disquieting of the citizens of the 
 United States, he refuses or omits to see justice done to 
 the offender, and reparation made to the party injured, 
 so far as part of the offender's pay shall go toward such 
 reparation, he shall be dismissed from the service, or 
 otherwise punished as a court-martial may direct. 
 
 Art. 55. All officers and soldiers are to behave them- 
 selves orderly in quarters and on the march; and who- 
 ever commits any waste or spoil, either in walks or trees, 
 parks, warrens, fish ponds, houses, gardens, grain fields, 
 inclosures, or meadows, or maliciously destroys any prop- 
 erty whatsoever belonging to inhabitants of the United 
 States (unless by order of a general officer commanding 
 a separate army in the field) , shall, besides such penalties 
 as he may be liable to by law, be punished as a court- 
 martial may direct. 
 
 Art. 56. Any officer or soldier who does violence to 
 any person bringing provisions or other necessaries to 
 
ARTICLES OF WAR. 113 
 
 the camp, garrison, or quarters of the forces of the 
 United States in foreign parts, shall suffer death, or such 
 other punishment as a court-martial may direct. 
 
 Art. 57. Whosoever, belonging to the armies of the 
 United States in foreign parts, or at any place within 
 the United States or their Territories during rebellion 
 against the supreme authority of the United States, 
 forces a safe-guard, shall suffer death. 
 
 Art. 58. In time of war, insurrection, or rebellion, 
 larceny, robbery, burglary, arson, mayhem, manslaugh- 
 ter, murder, assault and battery with intent to kill, 
 wounding, by shooting or stabbing, with an intent to 
 commit murder, rape, or an assault and battery with an 
 intent to commit rape, shall be punishable by the sen- 
 tence of a general court-martial, when committed by 
 persons in the military service of the United States, and 
 the punishment in any such case shall not be less than 
 the punishment provided, for the like offense, by the laws 
 of the State, Territory, or District in which such offense 
 may have been committed. 
 
 Art. 59. When any officer or soldier is accused of a 
 capital crime, or of any offense against the person or 
 property of any citizen of any of the United States 
 which is punishable by the laws of the land, the com- 
 manding officer and the officers of the regiment, troop, 
 battery, company, or detachment to which the person 
 so accused belongs are required, except in time of war, 
 upon application duly made by or in behalf of the party 
 injured, to use their utmost endeavors to deliver him 
 over to the civil magistrate, and to aid the officers of 
 justice in apprehending and securing him, in order to 
 bring him to trial. If, upon such application, any officer 
 refuses or willfully neglects, except in time of war, to 
 deliver over such accused person to the civil magistrates. 
 or to aid the officers of justice in apprehending him, he 
 shall be dismissed from the service.^ 
 
 1 Municipal ordinances and by-laws are part of the "laws of the land" 
 within the meaning of the phrase as used in the 59th A. W. (Opiu. of 
 Atty. Gen.; see cir. 15, A. G. 0., 1894.) 
 
 50963 8 
 
114 ARTICLES OF WAR. 
 
 Art. 60. Any person in the military service of the 
 United States who makes or causes to be made any claim 
 against the United States, or any officer thereof, know- 
 ing such claim to be false or fraudulent; or 
 
 [2] Who presents or causes to be presented to any per- 
 son in the civil or military service thereof, for approval 
 or payment, any claim against the United States or any 
 officer thereof, knowing such claim to be false or fraudu- 
 lent; or 
 
 [3] Who enters into any agreement or conspiracy to 
 defraud the United States by obtaining, or aiding others 
 to obtain, the allowance or payment of any false or 
 fraudulent claim; or 
 
 [4] Who, for the purpose of obtaining or aiding others 
 to obtain, the approval, allowance, or payment of any 
 claim against the United States, or against any officer 
 thereof, makes or uses, or procures or advises the making 
 or use of, any writing or other paper, knowing the same 
 to contain any false or fraudulent statement; or 
 
 [5] Who, for the purpose of obtaining, or aiding others 
 to obtain, the approval, allowance, or payment of any 
 claim against the United States or any officer thereof, 
 makes, or procures or advises the making of, any oath 
 to any fact or to any writing or other paper, knowing 
 such oath to be false; or 
 
 [6] Who, for the purpose of obtaining, or aiding others 
 to obtain, the approval, allowance, or payment of any 
 claim against the United States or any officer thereof, 
 forges or counterfeits, or procures or advises the forging 
 or counterfeiting of, any signature upon any writing or 
 other paper, or uses, or procures or advises the use of, 
 any such signature, knowing the same to be forged or 
 counterfeited; or 
 
 [7] Who , having charge , possession , custody , or control 
 of any money or other property of the United States, 
 furnished or intended for the military service thereof, 
 knowingly delivers, or causes to be delivered, to any per- 
 son having authority to receive the same, any amount 
 
ARTICLES OF WAR. 115 
 
 thereof less than that for which he receives a certificate 
 or receipt; or 
 
 [8] Who, being authorized to make or deliver any 
 paper certifying the receipt of any property of the 
 United States, furnished or intended for the military 
 service thereof, makes or delivers to any person such 
 writing, without having full knowledge of the truth of 
 the statements therein contained, and with intent to 
 defraud the United States; or 
 
 [9] Who, steals, embezzles, knowingly and willfully 
 misappropriates, applies to his own use or benefit, or 
 wrongfully or knowingly sells or disposes of any ord- 
 nance, arms, equipments, ammunition, clothing, sub- 
 sistence stores, money, or other property of the United 
 States, furnished or intended for the military service 
 thereof; or 
 
 [10] Who knowingly purchases, or receives in pledge 
 for any obligation or indebtedness, from any soldier, 
 officer, or other person who is a part of or employed in said 
 forces or service, any ordnance, arms, equipments, am- 
 munition, clothing, subsistence stores, or other property 
 of the United States, such soldier, officer, or other person 
 not having lawful right to sell or pledge the same, 
 
 Shall, on conviction thereof, be punished by fine or 
 imprisonment, or by such other punishment as a court- 
 martial may adjudge, or by any or all of said penalties.^ 
 And if any person, being guilty of any of the offenses 
 aforesaid, while in the military service of the United 
 States, receives his discharge, or is dismissed from the 
 service, he shall continue to be liable to be arrested and 
 held for trial and sentence by a court-martial, in the 
 same manner and to the same extent as if he had not 
 received such discharge nor been dismissed. 
 
 Art. 61. Any officer who is convicted of conduct un- 
 becoming an officer and a gentleman shall be dismissed 
 from the service. 
 
 Art. 62. All crimes not capital, and all disorders and 
 
 iThe words in italics were added by act of March "2, 1901, page VS.i^^jost. 
 
116 ARTICLES OF WAR. 
 
 neglects, which officers and soldiers may be guilty of, 
 to the prejudice of good order and military discipline, 
 though not mentioned in the foregoing Articles of War, 
 are to be taken cognizance of by a general, or a regi- 
 mental, garrison, or field officers' ^ court-martial, accord- 
 ing to the nature and degree of the offense, -and punished 
 at the discretion of such court. - 
 
 Art. 63. All retainers to the camp, and all persons 
 serving with the armies of the United States in the field, 
 though not enlisted soldiers, are to be subject to orders 
 according to the rules and discipline of war. 
 
 Art. 64. The officers and soldiers of any troops, 
 whether militia or others, mustered and in pay of the 
 United States, shall, at all times and in all places, be 
 governed by the Articles of War, and shall be subject 
 to be tried by courts-martial. 
 
 Art. 65. Officers charged with crime shall be arrested 
 and confined in their barracks, quarters, or tents, and 
 deprived of their swords by the commanding officer. 
 And any officer who leaves his confinement before he is 
 set at liberty by his commanding officer shall be dis- 
 missed from the service. 
 
 Art. 66. Soldiers charged with crimes shall be con- 
 fined until tried by court-martial, or released by proper 
 authority. 
 
 Art. 67. No provost marshal, or officer commanding 
 a guard, shall refuse to receive or keep any prisoner 
 committed to his charge by an officer belonging to the 
 forces of the United States; provided the officer com- 
 mitting shall, at the same time, deliver an account in 
 writing, signed by himself, of the crime charged against 
 the prisoner. 
 
 1 The "field officer's " court was abolished by sec. 2 of the summary court 
 act of June 18, 1898, page 130, post. 
 
 2 " Sec. 3. Tliat fraudulent enlistment, and the receipt of any pay or allow- 
 ance thereunder, is hereby declared a military offense and made punishable 
 by court-martial, under the 02d Article of War." (Act of July 27, 1892; see 
 G. 0. 57, A. G. 0., 1892.) For definition of fraudulent enlistment, see page 
 14, note 4, ante, and for forms for charges see page li2, post. 
 
ARTICLES OF WAR. 117 
 
 Art. 68. Every officer to whose charge a prisoner is 
 committed shall, within twenty-four hours after such 
 commitment, or as soon as he is relieved from his guard, 
 report in writing, to the commanding officer, the name 
 of such prisoner, the crime charged against him, and 
 the name of the officer committing him; and if he fails 
 to make such report, he shall be punished as a court- 
 martial may direct. 
 
 Art. 69. Any officer who presumes, without proper 
 authority, to release any prisoner committed to his 
 charge, or suffers any prisoner so committed to escape, 
 shall be punished as a court-martial may direct. 
 
 Art. 70. No officer or soldier put in arrest shall be 
 continued in confinement more than eight days, or until 
 such time as a court-martial can be assembled. 
 
 Art. 71. When an officer is put in arrest for the pur- 
 pose of trial, except at remote military posts or stations, 
 the officer by whose order he is arrested shall see that a 
 copy of the charges on which he is to be tried is served 
 upon him within eight days after his arrest, and that he 
 is brought to trial within ten days thereafter, unless the 
 necessities of the service prevent such trial; and then 
 he shall be brought to trial within thirty days after the 
 expiration of said ten days. If a copy of the charges be 
 not served, or the arrested officer be not brought to trial, 
 as herein required, the arrest shall cease. But officers 
 released from arrest, under the provisions of this article, 
 may be tried, whenever the exigencies of the service 
 shall permit, within twelve months after such release 
 from arrest. 
 
 Art. 72. Any general officer commanding an army, a 
 Territorial division or a department, or colonel com- 
 manding a separate department, may appoint general 
 courts-martial whenever necessary. But when any such 
 commander is the accuser or prosecutor of any officer 
 under his command the court shall be appointed by the 
 President; and its proceedings and sentence shall be 
 sent directly to the Secretary of War, by whom the)/ 
 
118 ARTICLES OF WAR. 
 
 shall be laid before the President for his approval or 
 orders in the case.^ 
 
 Art. 73. In time of war the commander of a division, 
 or of a separate brigade of troops, shall be competent to 
 appoint a general court-martial. But when such com- 
 mander is the accuser or prosecutor of any person under 
 his command, the court shall be appointed by the next 
 higher commander. 
 
 Art. 74. Officers who may appoint a court-martial 
 shall be competent to appoint a judge-advocate for the 
 same. 
 
 Art. 75. General courts-martial may consist of any 
 number of officers from five to thirteen, inclusive; but 
 they shall not consist of less than thirteen, when that 
 number can be convened without manifest injury to 
 the service. 
 
 Art. 76. When the requisite number of officers to 
 form a general court-martial is not present in any post 
 or detachment, the commanding officer shall, in cases 
 which require the cognizance of such a court, report to 
 the commanding officer of the department, who shall 
 thereupon order a court to be assembled at the nearest 
 post or department at which there may be such a 
 requisite number of officers, and shall order the party 
 accused, with necessary witnesses to be transported to 
 the place where the said court shall be assembled. 
 
 Art. 77. Officers of the Regular Army shall not be 
 competent to sit on courts-martial to try the officers or 
 soldiers of other forces, except as provided in Article 78. 
 
 Art. 78. Officers of the Marine Corps, detached for 
 service with the Army by order of the President,. may 
 be associated with officers of the Regular Army on 
 courts-martial for the trial of offenders belonging to 
 the Regular Army, or to forces of the Marine Corps so 
 detached; and in such cases the orders of the senior 
 officer of either corps, who may be present and duly 
 authorized, shall be obeyed. 
 
 Act of July 5, 1884; see G. 0. 73, A. G. 0., 1884. 
 
ARTICLES OF WAR. 119 
 
 Art. 79. Officers shall be tried only by general courts- 
 martial; and no officer shall, when it can be avoided, be 
 tried by officers inferior to him in rank.^ 
 
 Art. 81. Every officer commanding aregiment or corps 
 shall, subject to the provisions of Article 80, be com- 
 petent to appoint, for his own regiment or corps, courts- 
 martial, consisting of three officers, to try offenses not 
 capital. 
 
 Art. 82. Every officer commanding a garrison, fort, or 
 other place, where the troops consist of different corps, 
 shall, subject to the xirovisions of Article 80, be compe- 
 tent to appoint, for such garrison or other place, courts- 
 martial, consisting of three officers, to try offenses not 
 capital. 
 
 Art. 83. Regimental and garrison courts-martial and 
 summary courts, detailed under existing laws to try 
 enlisted men, shall not have power to try capital cases 
 or commissioned officers, but shall have power to award 
 punishment not to exceed confinement at hard labor for 
 three months or forfeiture of three months' pay, or both, 
 and in addition thereto, in the case of noncommissioned 
 officers, reduction to the ranks, and in the case of first- 
 class privates reduction to second-class privates: Pro- 
 vided, That a summary court shall not adjudge confine- 
 ment and forfeiture in excess of a period of one month 
 unless the accused shall before trial consent in writing 
 to trial by said court, but in any case of refusal to so 
 consent the trial may be had either by general, regi- 
 mental, or garrison court-martial, or by said summary 
 court, but in case of trial by said summary court with- 
 out consent as aforesaid the court shall not adjudge 
 confinement or forfeiture of pay for more than one 
 month. - 
 
 Art. 84. The judge-advocate shall administer to each 
 member of the court, before they proceed upon any trial, 
 the following oath, which shall also be taken by all mem- 
 bers of regimental and garrison courts-martial: " You, 
 
 1 Art. 80 lepejiled l.y art uf Jinio 18, 1898, sec. 2, paj;.' 130, post. 
 -83.1 A. W., Ks aiiiciided by ait of iAIarch 2, 1901, page n2,piM. 
 
120 ARTICLES OF WAR. 
 
 A B. do swear that you will well and truly try and 
 detennine, according to evidence, the matter now before 
 you, between the United States of America and the 
 prisoner to be tried, and that you will duly administer 
 justice, without partiality, favor, or affection, accord- 
 ing to the provisions of the rules and articles for the 
 government of the armies of the United States, and if 
 any doubt should arise, B*ot explained by said articles, 
 then according to your conscience, the best of your 
 understanding, and the custom of war in like cases: and 
 you do further swear that you will not divulge the 
 sentence of the court until it shall be published by the 
 proper authority, except to the judge-advocate; neither 
 will you disclose or discover the vote or opinion of any 
 particular member of the court-martial, unless required 
 to give evidence thereof, as a witness, by a court of 
 justice, in due course of law. So help you God." 
 
 Art. 85. When the oath has been administered to the 
 members of a court-martial, the president of the court 
 shall administer to the judge-advocate, or person 
 officiating as such, an oath in the following form: " ' You, 
 A B, do swear that you will not disclose or discover the 
 vote or opinion of any particular member of the court- 
 martial, unless required to give evidence thereof, as a 
 witness, by a court of justice, in due course of law; nor 
 divulge the sentence of the court to any but the proper 
 authority, until it shall be duly disclosed by the same. 
 So help you God." 
 
 Art. 86. A court-martial may punish, at discretion, 
 any person who uses any menacing words, signs, or 
 gestures, in its presence, or who disturbs its proceedings 
 by any riot or disorder. 
 
 Art. 87. All members of a court-martial are to behave 
 with decency and calmness. 
 
 Art. 88. Members of a court-martial may be chal- 
 lenged by a prisoner, but only for cause stated to the 
 court. The court shall determine the relevancy and 
 validity thereof, and shall not receive a challenge to 
 more than one member at a time. 
 
ARTICLES OP WAR. 121 
 
 Art. 89. When a prisoner, arraigned before a general 
 court-martial, from obstinacy and deliberate design, 
 stands mute or answers foreign to the purpose, the 
 court may proceed to trial and judgment as if the pris- 
 oner had pleaded not guilty. 
 
 Art. 90. The judge-advocate, or some person deputed 
 by him, or by the general or officer commanding the 
 Army, detachment, or garrison, shall prosecute in the 
 name of the United States, but when the prisoner has 
 made his plea, he shall so far consider himself counsel 
 for the prisoner as to object to any leading question to 
 any of the witnesses, and to any question to the prisoner 
 the answer to which might tend to criminate himself. 
 
 Art. 91. The depositions of witnesses residing beyond 
 the limits of the State, Territory, or District in which 
 any military court may be ordered to sit, if taken on 
 reasonable notice to the opposite party and duly authen- 
 ticated, may be read in evidence before such court in 
 cases not capital.^ 
 
 Art. 92. All persons who give evidence before a court- 
 martial shall be examined on oath, or affirmation, in the 
 following form: "You swear (or affirm) that the evi- 
 dence you shall give, in the case now in hearing, shall 
 be the truth, the whole truth, and nothing but the 
 truth. So help you God." 
 
 Art. 93. A court-martial shall, for reasonable cause, 
 grant a continuance to either party, for such time, and 
 as often, as may appear to be just: Provided, That if 
 the prisoner be in close confinement, the trial shall not 
 be delayed for a period longer than sixty days.^ 
 
 Art. 95. Members of a court-martial, in giving their 
 votes, shall begin with the youngest in commission. 
 
 1"Sec. 4. That judge-advocates of departments and of courts-martial, 
 and the trial officers of summary courts, are hereby authorized to adminis- 
 ter oaths for the purposes of the administration of military justice, and for 
 other purposes of military administration." (Act of July 27, 1892; see 
 G. 0. 57, A.G.O., 1892.) 
 
 -'Art. 91 repealed by act of March 2, 1901, sec. 2, page 132, pud. 
 
122 ARTICLES OF WAR. 
 
 Art. 96. No person shall be sentenced to suffer death, 
 except by the concurrence of two-thirds of the members 
 of a general court-martial, and in the cases herein 
 expressly mentioned. 
 
 Art. 97. No person in the military service shall, under 
 the sentence of a court-martial, be punished by confine- 
 ment in a penitentiary, unless the offense of which he 
 may be convicted would, by some statute of the United 
 States, or by some statute of the State, Territory, or 
 District in which such offense may be committed, or 
 by the common law, as the same exists in such State, 
 Territory, or District, subject such convict to such 
 punishment. 
 
 Art. 98. No person in the military service shall be 
 punished by flogging, or by branding, marking, or tat- 
 tooing on the body. 
 
 Art. 99. No officer shall be discharged or dismissed 
 from the service, except by order of the President, or 
 by sentence of a general court-martial; and in time of 
 peace no officer shall be dismissed, except in pursuance 
 of the sentence of a court-martial, or in mitigation 
 thereof. 
 
 Art. 100. When an officer is dismissed from the serv- 
 ice for cowardice or fraud, the sentence shall further 
 direct that the crime, punishment, name and place of 
 abode of the delinquent shall be published in the news- 
 papers in and about the camp, and in the State from 
 which the offender came, or where he usually resides; 
 and after such publication it shall be scandalous for an 
 officer to associate with him. 
 
 Art. 101. When a court-martial suspends an officer 
 from command it may also suspend his pay and emolu- 
 ments for the same time, according to the nature of his 
 offense. 
 
 Art. 102. No person shall be tried a second time for 
 the same offense. 
 
 ■ Art. 103. No person shall be liable to be tried and 
 punished by a general court-martial for any offense 
 
ARTICLES OF WAR. 123 
 
 which appears to have been committed more than two 
 years before the issuing of the order for such trial, 
 unless, by reason of having absented himself, or of some 
 other manifest impediment, he shall not have been 
 amenable to justice within that period. 
 
 No person shall be tried or punished by a court- 
 martial for desertion in time of peace and not in the 
 face of an enemy, committed more than two years 
 before the arraignment of such person for such offense, 
 unless he shall meanwhile have absented himself from 
 the United States, in which case the time of his absence 
 shall be excluded in computing the period of the limi- 
 tation: Provided, That said limitation shall not begin 
 until the end of the term for which said person was 
 mustered into the service.^ 
 
 Art. 104. No sentence of a court-martial shall be 
 carried into execution until the same shall have been 
 approved by the officer ordering the court, or by the 
 officer commanding for the time being. - 
 
 Art. 105. No sentence of a court-martial, inflicting 
 the punishment of death, shall be carried into execution 
 until it shall have been confirmed by the President; 
 except in the cases of persons convicted in time of war, 
 as spies, mutineers, deserters, or murderers, and in the 
 cases of guerrilla marauders, convicted in time of war, 
 of robbery, burglary, arson, rape, assault with intent 
 to commit rape, or of violation of the laws and customs 
 of war; and in such excepted cases the sentence of death 
 may be carried into execution upon confirmation by 
 the commanding general in the field, or the commander 
 of the department, as the case may be. 
 
 Art. 106. In time of peace no sentence of a court- 
 martial, directing the dismissal of an officer, shall be 
 carried into execution, until it shall have been con- 
 firmed by the President. 
 
 1 103d A. W., as amended by act of April 11, 1890; see G. 0. 45, A. C. O., 
 1890. 
 
 •- 101th A. W., as amended by act of July 27, 1S92; see G. O. 37, A. G. O., 
 1892. 
 
124 ARTICLES OF WAR. 
 
 Art. 107. No sentence of a court-martial appointed 
 by the commander of a division or of a separate brigade 
 of troops, directing the dismissal of an officer, shall be 
 carried into execution until it shall have been confirmed 
 by the general commanding the army in the field to 
 which the division or brigade belongs. 
 
 Art. 108. No sentence of a court-martial, either in 
 time of peace or in time of war, respecting a general 
 officer, shall be carried into execution until it shall have 
 been confirmed by the President. 
 
 Art. 109. All sentences of a court-martial may be 
 confirmed and carried into execution by the officer 
 ordering the court, or by the officer commanding for 
 the time being, where confirmation by the President or 
 by the commanding general in the field, or commander 
 of the department, is not required by these articles.^ 
 
 Art. 111. Any officer who has authority to carry into 
 execution the sentence of death, or of dismissal of an 
 officer, may suspend the same until the pleasure of the 
 President shall be known; and, in such case, he shall 
 immediately transmit to the President a copy of the 
 order of suspension, together with a copy of the pro- 
 ceedings of the court. 
 
 Art. 112. Every officer who is authorized to order a 
 general court-martial shall have power to pardon or 
 mitigate any punishment adjudged by it, except the 
 punishment of death or of dismissal of an officer. Every 
 officer commanding a regiment or garrison in which a 
 regimental or garrison court-martial may be held shall 
 have power to pardon or mitigate any punishment which 
 such court may ad judge. - 
 
 Art. 113. Every judge-advocate, or person acting as 
 such, at any general court-martial, shall, with as much 
 expedition as the opportunity of time and distance of 
 place may admit, forward the original proceedings and 
 sentence of such court to the Judge- Advocate-General 
 
 1 Article 110 repealed by act of Juue 18, 1898, sec. 2, page 1^0, post. 
 2 See par. 951, A. R. 
 
ARTICLES OF WAR. 12i> 
 
 of the Army, in whose office they shall be carefully 
 preserved. 
 
 Art. 114. Every party tried by a general court-martial 
 shall, upon demand thereof made by himself or by any 
 person in his behalf, be entitled to a copy of the proceed- 
 ings and sentence of such court. 
 
 Art. 115. A court of inquiry to examine into the 
 nature of any transaction of, or accusation or imputa- 
 tion against, any officer or soldier, may be ordered by 
 the President or by any commanding officer; but, as 
 courts of inquiry may be perverted to dishonorable pur- 
 poses, and may be employed, in the hands of weak and 
 envious commandants, as engines for the destruction of 
 military merit, they shall never be ordered by any com- 
 manding officer except upon a demand by the officer or 
 soldier whose conduct is to be inquired of. 
 
 Art. 116. A court of inquiry shall consist of one or 
 more officers, not exceeding three, and a recorder, to 
 reduce the proceedings and evidence to writing. 
 
 Art. 117. The recorder of a court of inquiry shall 
 administer to the members the following oath: "'You 
 shall well and truly examine and inquire, according to 
 the evidence, into the matter now before you, without 
 partiality, favor, affection, prejudice, or hope of reward. 
 So help you God." After which the president of the 
 court shall administer to the recorder the following 
 oath: " You, A B, do swear that you will, according to 
 your best abilities, accurately and impartially record 
 the proceedings of the court and the evidence to be 
 given in the case in hearing. So help you God." 
 
 Art. 1 18. A court of inquiry, and the recorder thereof, 
 shall have the same power to summon and examine 
 witnesses as is given to courts-martial and the judge- 
 advocates thereof. Such witnesses shall take the same 
 oath which is taken by witnesses before courts-martial, 
 and the party accused shall be permitted to examine and 
 cross-examine them, so as fully to investigate the cir- 
 cumstances in question. 
 
126 ARTICLES OF WAR. 
 
 Art. 119. A court of inquiry shall not give an opinion 
 on the merits of the case inquired of unless specially 
 ordered to do so. 
 
 Art. 120. The proceedings of a court of inquiry 
 must be authenticated by the signatures of the recorder 
 and the president thereof, and delivered to the com- 
 manding officer. 
 
 Art. 121. The proceedings of a court of inquiry may 
 be admitted as evidence by a court-martial, in cases 
 not capital nor extending to the dismissal of an officer: 
 Provided, That the circumstances are such that oral 
 testimony can not be obtained. 
 
 Art. 122. If, upon marches, guards, or in quarters, 
 different corps of the army happen to join or do duty 
 together, the officer highest in rank of the line of the 
 Army, Marine Corps, organized militia, or volunteers, 
 by commission, there on duty or in quarters, shall com- 
 mand the whole, and give orders for what is needful in 
 the service, unless otherwise specially directed by the 
 President, according to the nature of the case.^ 
 
 Art. 124. Officers of the organized militia of the 
 several States, when called into the service of the United 
 States, shall on all detachments, courts-martial, and 
 other duty, wherein they maybe employed in conjunc- 
 tion with the regular or volunteer forces of the United 
 States, take rank next after all officers of the like grade 
 in said regular forces, and shall take precedence of all 
 officers of volunteers of equal or inferior rank, notwith- 
 standing the commissions of such militia officers may 
 be older than the commissions of the said officers of the 
 regular forces of the United States. ^ 
 
 Art, 125. In case of the death of any officer, the ma- 
 jor of his regiment, or the officer doing the major's duty, 
 or the second officer in command at any post or garrison, 
 as the case may be, shall immediately secure all his 
 
 il22d A. W., as amended by act of March 8, iniO; see G. 0. 43, W. D., 
 1910. Article 123 repealed by same act. 
 2124th A. W., as amended by act of March 8, 1910, 
 
OTHER STATUTORY PROVISIONS. 127 
 
 effects then in camp or quarters, and shall make, and 
 transmit to the office of the Department of War, an 
 inventory thereof. 
 
 Art. 126. In case of the death of any soldier, the com- 
 manding officer of his troop, battery, or company shall 
 immediately secure all his effects then in camp or quar- 
 ters, and shall, in the presence of two other officers, 
 make an inventory thereof, which he shall transmit to 
 the office of the Department of War. 
 
 Art. 127. Officers charged with the care of the effects 
 of deceased officers or soldiers shall account for and de- 
 liver the same, or the proceeds thereof, to the legal rep- 
 resentatives of such deceased officers or soldiers. And 
 no officer so charged shall be permitted to quit the regi- 
 ment or post until he has deposited in the hands of the 
 commanding officer all the effects of such deceased offi- 
 cers or soldiers not so accounted for and delivered. 
 
 Art. 128. The foregoing articles shall be read and 
 published, once in every six months, to every garrison 
 regiment, troop, or company in the service of the Unites 
 States, and shall be duly observed and obeyed by 
 officers and soldiers in said service. 
 
 OTHER STATUTORY PROVISIONS DEFINIJiG ^^ 
 COURT-MARTIAU OFFEXSES. 
 
 Sec. 1343, R. S. "All persons who, in time of war, or 
 of rebellion against the supreme authority of the United 
 States, shall be found lurking or acting as spies, in or 
 about any of the fortifications, posts, quarters, or en- 
 campments of any of the armies of the United States, or 
 elsewhere, shall be triable by a general court-martial, 
 or by a military commission, and shall, on conviction 
 thereof, suffer death." 
 
 Sec. 5306, R. S. " Every officer of the United States, 
 civil, military, or naval, and every sutler, soldier , marine, 
 or other person, who takes, or causes to be taken into 
 a State declared to be in insurrection, or to any other 
 point to be thence taken into such State, or who trans- 
 ports or sells, or otherwise disposes of therein, any goods. 
 
128 OTHER STATUTORY PROVISIONS. 
 
 wares, or merchandise whatsoever, except in pursuance 
 of license and authority of the President, as provided in 
 this title [see sec. 5304 J , or who makes any false state- 
 ment or representation upon which license and authority 
 is granted for such transportation, sale, or other disposi- 
 tion, or who, under any license or authority obtained, 
 willfully and knowingly transports, sells, or otherwise 
 disposes of any other goods, wares, or merchandise than 
 such as are in good faith so licensed and authorized, or 
 who willfully and knowingly transports, sells, or dis- 
 poses of the same, or any portion thereof, in violation of 
 the terms of such license or authority, or of any rule or 
 regulation prescribed by the Secretary of the Treasury 
 concerning the same, or who is guilty of any act of em- 
 bezzlement, of willful misappropriation of public or pri- 
 vate money or property, of keeping false accounts, or of 
 willfully making any false returns, shall be deemed 
 guilty of a misdemeanor, and shall be fined not more 
 than five thousand dollars, and imprisoned in the peni- 
 tentiary not more than three years. Violations of this 
 section shall be cognizable before any court, civil or 
 military, competent to try the same." 
 
 Sec. 5313, R. S. "All persons in the military or naval 
 service of the United States are prohibited from buying 
 or selling, trading, or in any way dealing in captured 
 or abandoned property, whereby they shall receive or 
 expect any profit, benefit, or advantage to themselves, or 
 any other person, directly or indirectly connected with 
 them, and it shall be the duty of such person whenever 
 such property comes into his possession or custody, or 
 within his control, to give notice thereof to some agent, 
 appointed by virtue of this title [see sec. 5305] , and to 
 turn the same over to such agent without delay. Any 
 officer of the United States, civil, military, or naval, or 
 any sutler, soldier, or marine, or other person who shall 
 violate any provision of this section shall be deemed 
 guilty of a misdemeanor, and shall be fined not more 
 than five thousand dollars, and imprisoned in the pen- 
 itentiary not more than three years. Violations of this 
 
SUMMARY COURT ACT. 139 
 
 section shall be cognizable before any court, civil or 
 military, competent to try the same." 
 
 ACT ESTABLISHING THE SUMMARY COURT. 
 
 Be it enacted, etc., That the Act entitled " An act to 
 promote the administration of justice in the Army," 
 approved October first, eighteen hundred and ninety, as 
 supplemented and amended by subsequent legislation, 
 be, and the same is hereby, amended so as to read as 
 follows: 
 
 " That the commanding officer of each garrison, fort, 
 or other place, regiment or corps, detached battalion, or 
 company, or other detachment in the Army, shall have 
 power to appoint for such place or command, or in his 
 discretion for each battalion thereof, a summary court 
 to consist of one officer to be designated by him, before 
 whom enlisted men ^ who are to be tried for offenses, 
 such as were prior to the passage of the Act 'to promote 
 the administration of justice in the Army,' approved 
 October first, eighteen hundred and ninety, cognizable 
 by garrison or regimental courts-martial, and offenses 
 cognizable by field officers detailed to try offenders under 
 the provisions of the eightieth and one hundred and 
 tenth articles of war, shall be brought to trial within 
 twenty-four hours of the time of the arrest, or as soon 
 thereafter as practicable, except when the accused is to 
 be tried by general court-martial; but such summary 
 court may be appointed and the officer designated by 
 superior authority when by him deemed desirable; and 
 the officer holding the summary court shall have power 
 to administer oaths and to hear and determine such 
 cases, and when satisfied of the guilt of the accused ad- 
 judge the punishment to be infiicted, which said pun- 
 ishment shall not exceed confinement at hard labor for 
 one month and forfeiture of one month's pay, and, in 
 the case of a noncommissioned officer, reduction to the 
 
 1 Retainers to the camp and other chisses of persons mentioned in the 63d 
 A. W. are not triable by summary court. 
 
130 SUMMARY COURT ACT. 
 
 ranks in addition thereto; that there shall be a summary 
 court record kept at each military post and in the field 
 at the headquarters of the proper command, in which 
 shall be entered a record of all cases heard and deter- 
 mined and the action had thereon; and no sentence ad- 
 judged by said summary court shall be executed until 
 it shall have been approved by the officer appointing the 
 court, or by the officer commanding for the time being: 
 Provided, That when but one commissioned officer is 
 present with a command he shall hear and finally deter- 
 mine such cases: And provided further, That no one 
 while holding the privileges of a certificate of eligibility 
 to promotion shall be brought before a summary court, 
 and that noncommissioned officers shall not, if they ob- 
 ject thereto, be brought to trial before summary courts 
 without the authority of the officer competent to order 
 their trial by general court-martial, but shall in such 
 cases be brought to trial before garrison, regimental, or 
 general courts-martial, as the case may be." 
 
 Sec. 2. That articles eighty and one hundred and ten 
 of the Rules and Articles for the Government of the 
 Armies of the United States be, and the same are hereby, 
 repealed. 
 
 Sec. 3. That the commanding officers authorized to 
 approve the sentences of summary courts and superior 
 authority shall have power to remit or mitigate the same. 
 
 Sec. 4. That post and other commanders shall, in time 
 of peace, on the last day of each month, make a report 
 to the department headquarters of the number of cases 
 determined by summary court during the month, setting 
 forth the offenses committed and the penalties awarded, 
 which report shall be filed in the office of the judge- 
 advocate of the department, and may be destroyed when 
 no longer of use. 
 
 Sec. 5. That soldiers sentenced by court-martial to 
 dishonorable discharge and confinement shall, until dis- 
 charged from such confinement, remain subject to the 
 Articles of War and other laws relating to the adminis- 
 tration of military justice. 
 
ACT OF MARCH 2, 1901. 131 
 
 Sec. 6. That it shall be lawful for any civil officer 
 having authority under the laws of the United States, or 
 of any State, Territory, or District, to arrest offenders, 
 to summarily arrest a deserter from the military service 
 of the United States and deliver him into the custody of 
 the military authority of the General Government. 
 
 Sec. 7. That this Act shall take effect sixty days 
 after its passage. 
 
 Approved June 18, 
 
 ACT TO PREVENT THE FAILURE OF MILITARY 
 JUSTICE. 
 
 Be it enacted, etc., That every person not belonging 
 to the Army of the United States who, being duly sub- 
 poenaed to appear as a witness before a general court- 
 martial of the Army, willfully neglects or refuses to 
 appear, or refuses to qualify as a witness or to testify or 
 produce documentary evidence which such person may 
 have been legally subpoenaed to produce, shall be deemed 
 guilty of a misdemeanor, for which such person shall be 
 punished on information in the district court of the 
 United States; and it shall be the duty of the United 
 States district attorney, on the certification of the facts 
 to him by the general court-martial, to file an informa- 
 tion against and prosecute the person so offending, and 
 the punishment of such person, on conviction, shall be a 
 fine of not more than five hundred dollars or imprison- 
 ment not to exceed six months , or both , at the discretion of 
 the court: Provided, That this shall not apply to persons 
 residing beyond the State, Territory, or District in which 
 such general court-martial is held, and that the fees of 
 such witness, and his mileage at the rates provided for 
 witnesses in the United States district court for said 
 State, Territory , or District shall be duly paid or tendered 
 said witness, such amounts to be paid by the Pay Depart- 
 ment of the Army out of the appropriation for compen- 
 sation of witnesses: Provided, That no witness shall be 
 compelled to incriminate himself or to answer any ques- 
 tions which may tend to incriminate or degrade him. 
 
i;)-2 ACT OF MARCH 2, 1901. 
 
 Sec. 2. That article ninety-four, section thirteen hun- 
 dred and forty- two, of the Revised Statutes of the United 
 States be, and the same is hereby, repealed. 
 
 Sec. 3. That section one hundred and eighty -three of 
 the Revised Statutes of the United States be, and the 
 same is hereby, amended so as to read as follows: 
 
 "Sec. 183. Any officer or clerk of any of the depart- 
 ments lawfully detailed to investigate frauds on, or at- 
 tempts to defraud, the Government, or any irregularity 
 or misconduct of any officer or agent of the United States, 
 and any officer of the Army detailed to conduct an in- 
 vestigation, and the recorder, and, if there be none, the 
 presiding officer of any military board appointed for 
 such purpose, shall have authority to administer an oath 
 to any witness attending to testify or depose in the course 
 of such investigation." 
 
 Sec. 4. That article eighty- three, section thirteen 
 hundred and forty-two, of the Revised Statutes of the 
 United States be, and the same is hereby, amended to 
 read as follows: 
 
 ' 'Article 83. Regimental and garrison courts-martial 
 and summary courts detailed under existing laws to try 
 enlisted men shall not have power to try capital cases 
 or commissioned officers, but shall have power to award 
 punishment not to exceed confinement at hard labor for 
 three months or forfeiture of three months' pay, or both, 
 and in addition thereto, in the case of noncommissioned 
 officers reduction to the ranks and in the case of first- 
 class privates reduction to second-class privates: Pro- 
 vided, That a summary court shall not adjudge confine- 
 ment and forfeiture in excess of a period of one month, 
 unless the accused shall before trial consent in writing 
 to trial by said court, but in any case of refusal to so 
 consent, the trial may be had either by general, regi- 
 mental, or garrison court-martial, or by said summary 
 court, but in case of trial by said summary court with- 
 out consent as aforesaid, the court shall not adjudge con- 
 finement or forfeiture of pay for more than one month." 
 
ACT OF MARCH 2, 1901. ] :):> 
 
 Sec. 5. That article sixty, section thirteen hundred 
 and forty-two, of the Revised Statutes of the United 
 States be, and the same is hereby, amei^ded by inserting 
 after the words "shall, on conviction thereof, be .pun- 
 ished by fine or imprisonment, or by such other punish- 
 ment as a court-martial may adjudge," the words "or 
 by any or all of said penalties." 
 
 Approved, Marcn 2, 1901. 
 
GENERAL FORMS. 
 
 FORMS FOR CHARGES. 
 
 Charge and specification preferred against Private 
 A B , Co. , U. S. Infantry. 
 
 Article 17. 
 
 (a) Charge: "Selling clothing,^ in violation of the 
 17th Article of War." 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, did sell the following articles of his 
 
 uniform clothing, issued to him, viz: One (1) forage cap, 
 
 value $ ; one (1) overcoat, made, value | ; and 
 
 one (1) blanket, woolen, value $ ; total value of ar- 
 ticles sold $ . 
 
 " This at , on the of , 19—." 
 
 C D , 
 
 Captain, Infantry, 
 
 Officer Preferring Charge. 
 Witnesses: 
 
 1st Sergeant E F , Co. , Infantry. 
 
 Private G H , Troop , Cavalry. 
 
 Mr. I K , citizen. 
 
 (b) "Losing accouterments, in violation of the 17th 
 Article of War."^ 
 
 1 See page 18, Sec. Ill, ante. 
 
 2 The loss or sale of ammunition should be charged under the 62d A. W. 
 
 ^ If a soldier is known to have unlawfully disposed of his clothing or ac- 
 couterments in a way not mentioned in the 17th Article, the charge should 
 be laid under the 62d Article. 
 
 (134) 
 
FORMS FOR CHARGES. 135 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, did, through neglect, lose the fol- 
 lowing articles of his acconterments, issued to him, viz: 
 
 One (1) , value $ ; and one (1) , value $ ; 
 
 total value of articles lost, $ . 
 
 " This at on the of , 19—." 
 
 Article 20. 
 
 Charge: '"Behaving with disrespect toward his com- 
 manding officer, in violation of the 20th Article of War. ' ' 
 
 Specification : '"In that Private A B , Co. , 
 
 U. S. Infantry, did behave himself with disrespect 
 
 toward his commanding officer. Captain C D , 
 
 U. S. Infantry, by {here insert language or describe 
 
 the conduct) . 
 
 " This at on the of , 19—." 
 
 Article 21. 
 
 (a) Charge: "Disobedience of orders,^ in violation 
 of the 21st Article of War." 
 
 Specificatio7i : "In that Private A B , Co. , 
 
 U. S Infantry, having received a lawful command 
 
 from his superior officer, 2d Lieut. C D , 
 
 U. S. Infantry, to {insert order), did willfully disobey 
 the same. 
 
 " This at , on the of , 19—." 
 
 (6) "Striking his superior officer, in violation of the 
 21st Article of War." 
 
 Specification : " In that Private A B , Co. , 
 
 U. S. Infantry, did strike his superior officer, 2d 
 
 Lieut. C D , U. S. Infantry, with {here 
 
 1 A noncompliance by a soldier with an order emanating from a contract 
 surgeon, a dental surgeon, a veterinarian, or noncommissioned officer 
 is not an offense under this article, but one to be charged, in general, 
 under the 62d. A simple neglect to comply with a standing order is an 
 offense under the 62d Article, and not uuder the 21st, which implies a will- 
 ful defiancp of authority. See note page lOB, ante, as to disobedience of an 
 order l)y a military convict. 
 
13G FORMS FOR CHARGES. 
 
 describe tlte offense) the said lieutenant being in the 
 execution of his office. 
 " This at , on the of , 19—." 
 
 Article 24. 
 
 Charge : " Disobedience of orders, in violation of the 
 24th Article of War." 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, being present and taking part in a 
 
 (quarrel, fray or disorder) among enlisted men of , 
 
 and having been duly ordered by {insert name and rank 
 of officer or noncommissioned officer) into confinement 
 {or arrest) did refuse to obey and did disobey said order. 
 
 "This at , on the of , 19—." 
 
 Article 32. 
 
 Charge : "Absence without leave, in violation of the 
 32d Article of War." 
 
 Specification : ' ' In that Private A B , Co. , 
 
 U. S. Infantry, did absent himself from his com- 
 pany, without leave from his commanding officer, from 
 
 , on the of , 19 — , until , on the 
 
 of , 19—. 
 
 "This at ." 
 
 Article 33. 
 
 (a) Charge: "Absence from parade, in violation of 
 the33d Article of War." 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, not being prevented by sickness or 
 
 other necessity, did fail to repair, at the fixed time, to 
 the place of parade appointed by his commanding officer. 
 
 "This at , on the of , 19 — ." 
 
 or, 
 
 (&) "Absence from 11 p. m. inspection, in violation of 
 the 33d Article of War." 
 
 Specification : "In that private A B , Co. , 
 
 U. S. Infantry, not being prevented by sickness or 
 
FORMS FOR CHARGES. 137 
 
 other necessity, did fail to repair, at the fixed time, to 
 the place appointed by his commanding officer for 11 
 o'clock p. m. inspection of his company. 
 "This at , on the of , 19—." 
 
 Article 38. 
 
 (a) Charge: "Drunkenness on duty, in violation of 
 the 38th Article of War." 
 
 Specification: "In that Private A B , Troop 
 
 , U. S. Cavalry, while on duty on stable guard, 
 
 was found drunk. 
 
 "This at , on the of , 19—." 
 
 or, 
 
 {h) "In that Private A B , Co. , U. S. 
 
 Infantry, while on duty at drill, was found drunk. 
 
 " This at , on the of , 19—." 
 
 Article 39. 
 
 . (a) Charge: "Sleeping on post, in violation of the 
 39th Article of War." 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, being on guard and posted as a sen- 
 tinel, was found sleeping on his post. 
 
 "This at , on the of , 19—." 
 
 or, 
 
 (b) " Leaving post, in violation of the 39th Article of 
 War." 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, being on guard and posted as a sen- 
 tinel, did leave his post before he was regularly relieved. 
 
 " This at , on the of , 19—." 
 
 Article 40. 
 
 Charge: "Quitting guard, in violation of the 40th 
 Article of War." 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, being on guard, did. without urgent 
 
 necessity, quit his guard without leave from his superior 
 officer. 
 
 " This at , on the of , 19 — ." 
 
138 FORMS FOR CHARGES. 
 
 Article 47. 
 
 (a) Charge : "Desertion, in violation of the 47th Arti- 
 cle of War." 
 
 Specification: "In that Private A B , Co. , 
 
 U. S. Infantry, a soldier in the service of the United 
 
 States/ did desert the same at on or about the 
 
 of , 19 — , and did remain absent in desertion until 
 
 he was apprehended {or until he surrendered himself), 
 at , on or about the of , 19 — ." 
 
 {If a soldier deserts and enlists in another company, he 
 shoidd be charged with desertion under the 4'^th Article, 
 and also ivith ''fraudulent enlistment, to the prejudice 
 of good order and jnilitary discipline,'^ under the 6 M.'^ 
 An additional specification to the charge of desertion 
 should set forth the offense as follows :) 
 
 Specification 2: " In that Private A B , Troop 
 
 , U. S. Cavalry, alias Private C D , 
 
 Company , U. S. Infantry, a soldier in the 
 
 service of the United States, did desert the same at 
 
 on or about ' the of , 19 — , as evidenced by the 
 
 fact that he did enlist at on or about the day 
 
 of , 19 — , under the name C D , in Company 
 
 , U, S. Infantry, without a regular discharge 
 
 from said Troop , Cavalry." 
 
 Article 51. 
 
 Charge: "Advising (or persuading) a soldier to desert, 
 in violation of the 51st Article of War." 
 
 Specification: "In that Private A B , 
 
 U. S. Infantry, did advise {or persuade) Private A 
 
 B , U. S. Infantry, to desert the service of the 
 
 United States {if desertion occurred, state the fact). 
 
 " This at , on the of , 19—." 
 
 1 This form is applicable either in case a soldier has " received pay" or 
 has been "duly enlisted." In either case the " statement of service " will 
 enable the court to determine as to the statute of liinitatidii and jjroper pun- 
 ishment. (See page 34, par. 9, and page 52, atih'.) 
 
 2See 50th A. W. Forform for "fraudulent enlistment," seepage 142, j)Os/. 
 
 3 Give date of original absence without authority. See Cir. No. 46, W. D., 
 •luly 13, 1010. 
 
FORMS FOR CHARGES. 139 
 
 Article 58. 
 
 Charge: " Murder, in violation of the 58th Article of 
 War." 
 
 Specification ; " In that Private A B , Co. , 
 
 U. S. Infantry, did in time of (war, insurrection, or 
 
 rebellion) willfully, unlawfully, feloniously and with 
 
 malice aforethought murder and kill by {here 
 
 set forth the manner of killing). 
 
 " This at , on or about the of , 19 — ." 
 
 Article 60. 
 
 (a) Charge: " Causing to be presented to the United 
 States authorities for payment a false and fraudulent 
 claim against the United States, knowing such claim to 
 be false and fraudulent, in violation of the 60th Article 
 of War." 
 
 Specification: "In that 1st Lieut. A B , 
 
 U. S. Infantry, having duly assigned to and 
 
 caused to be presented for payment to , Deputy 
 
 Paymaster General, U.S. Army, by , his official 
 
 pay account and claim against the United States for pay 
 
 in full for the month of , 19—, amounting to the sum 
 
 of ($ ) , and the same having been duly satisfied 
 
 and paid on such presentation, on or about , 19 — , 
 
 did subsequently cause to be presented for payment by 
 his assignee, , to the said , Deputy Pay- 
 master General, another, and a false and fraudulent, 
 official pay account and claim against the United States 
 for pay for the same month and in the same amount, he, 
 the said Lieut. A B , well knowing that this sub- 
 sequent account and claim was false and fraudulent. 
 
 " This at , on or about the of , 19—." 
 
 (b) Charge: '• Larceny, in violation of the 60th Article 
 of War." 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, did feloniously take, steal, and carry 
 
 away , of the value of $ , the property of the 
 
140 FORMS FOR CHARGES. 
 
 United States, furnished and intended for the military 
 service thereof. 
 
 " This at , on the of, 19 — ." 
 
 Article 61. 
 
 Charge: " Conduct unbecoming an officer and a gen- 
 tleman, in violation of the 61st Article of War." 
 
 Specification 1 : "In that 1st Lieut. A B , 
 
 U. S. Infantry, having, for value received, assigned to 
 
 , his official pay account and claim for pay in 
 
 full against the United States for the month of , 
 
 19 — , which said account was made and executed by 
 him in due manner and form., did, nevertheless, for a 
 
 valuable consideration, assign to , another and 
 
 a second pay account and claim of the same nature 
 and form, and for the same amount and period, he, the 
 
 said Lieut. A B , well knowing at the time he 
 
 made such assignment that the second account and claim 
 was false and fraudulent. 
 
 '• This at , on or about the of , 19 — ." 
 
 Specification 2: "In that 1st Lieut. A B , 
 
 U. S. Infantry, having made and executed in due form 
 his certain pay account as an officer in the army for the 
 
 month of , 19 — , and having duly assigned the said 
 
 account to , thereby parting with all individual 
 
 title and interest therein, and without having redeemed 
 the same, and while it remained in full force and effect, 
 did falsely certify with his official signature to the cor- 
 rectness of another official pay account for pay for the 
 said month of , 19—, duly made, executed, and as- 
 signed to , which said certificate was in words 
 
 as follows: 'I certify that the foregoing statement is 
 correct.' 
 
 " This at , on or about the of , 19 — ." 
 
 Article 62. 
 
 (a) Charge: "Neglect of duty, to the prejudice of 
 good order and military discipline. ' ' 
 
FORMS FOR CHARGES. 141 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, being on duty as , and it being 
 
 his dnty as such to , did fail and neglect to perform 
 
 said duty. 
 
 " This at , on the of , 19—." 
 
 (5) Charge: " Drunkenness" and disorderly conduct, 
 to the prejudice of good order and military discipline." 
 
 Specification : '* In that Private A B , Co. , 
 
 U. S. Infantry, was drunk and disorderly in . 
 
 " This at , on the of , 19—." 
 
 (e) Charge: "Suffering a prisoner to escape, to the 
 prejudice of good order and military discipline." 
 
 Specification : ' ' In that Private A B , Co. , 
 
 U. S. Infantry, while on duty as a sentinel, did, 
 
 through neglect, suffer Private C D , Co. , 
 
 — — U. S. Infantry, a prisoner under his charge, to escape. 
 
 "This at , on the of ,19—." 
 
 or, 
 
 Specification : "In that Private A B , Co. , 
 
 U. S. Infantry, while on duty as a sentinel, did will- 
 fully suffer Private C D , Co. , U. S. 
 
 Infantry, a prisoner under his charge, to escape. 
 
 " This at , on the of , 19—." 
 
 {d) Charge: " Conduct to the prejudice of good order 
 and military discipline." 
 
 Specification : "In that Private A B- , Co. , 
 
 U. S. Infantry, having received a lawful order 
 
 from 1st Sergt. C D . Co. , U. S. Infan- 
 try, the said sergeant being in the execution of his office, 
 to {insert order), did willfully disobey the same. 
 
 <' This at , on the of , 19—." 
 
 {If any person not a soldier ^ fraudidently enlist in the 
 United States service, the cliarge and specification should 
 read:'^) 
 
 iFor case of fraudulent enlistment by a soldier, see page 142, form (</), 
 post ; and for definition of " fraudulent enlistment," see page 14, note 4, 
 ante. 
 
 2See sec. 3 of the act of July 27, 1.S92; page 116, note 2, ante. 
 
142 FORMS FOR CHARGES. 
 
 (e) Charge: " Fraudulent enlistment, in violation of 
 the 62d Article of War." 
 
 Specification: " In that Private A B , Co. , 
 
 U. S. Infantry, did, at^ , on the of ,19 — , 
 
 being then a minor, fraudulently enlist as a soldier in the 
 service of the United States by falsely representing him- 
 self to be over 21 years of age, to wit, years and 
 
 months of age; and that he has at , since said enlist- 
 ment, received pay and allowances thereunder." 
 or, 
 
 (/) Specification: "In that Private A B , Co. 
 
 , U. S. Infantry, did, at , on the of , 
 
 19 — , fraudulently enlist as a soldier in the service of the 
 United States, by falsely representing that he had never 
 been discharged from the United States service by sen- 
 tence of a military court and by deliberately and will- 
 fully concealing from the recruiting officer, , the 
 
 fact of his dishonorable discharge from , on , 
 
 pursuant to sentence of court-martial; and that he has 
 at , since said enlistment, received pay and allow- 
 ances thereunder." 
 
 {or) if a soldier enlists without a discharge from a prior 
 enlistment. ^ 
 
 (g) Specification: "In that Private A B , Troop 
 
 , U. S. Cavalry, alias Private C D , 
 
 Co. , U. S. Infantry, a soldier in the service of 
 
 the United States, did, without a discharge from said 
 
 regiment of cavalry, fraudulently enlist in Co. , 
 
 U.S. Infantry, at , on the day of ,19 — , 
 
 under the name of C D ." 
 
 (h) Charge : ' ' Manslaughter, to the prejudice of good 
 order and military discipline, in violation of the 62d 
 Article of War." 
 
 Specification: " In that Private A B , Co. , 
 
 U. S. Infantry, did unlawfully, willfully and feloni- 
 
 1 lu such cases it is not necessary to allege receipt of pay or allowance, as 
 the soldier being already in the service, his enlisting again without a dis- 
 charge is punishable as fraudulent enlistment without regard to the act of 
 July 27, 1892. See Digest Opiu. J. A. G., § 1418. 
 
FORMS FOR CHARGES. 143 
 
 ously kill Private C D , Co. , U. S. In- 
 fantry, by {here insert manner of killing). 
 
 '• This at , on the of , 19—." 
 
 (i) Charge: "Assault (or, assault and battery)^ with 
 intent to kill, to the prejudice of good order and mili- 
 tary discipline.'' 
 
 Specification: " In that Private A B , Co. , 
 
 U. S. Infantry, did feloniously assault Sergeant 
 
 , Co. , U. S. Infantry, by shooting at 
 
 him with a pistol {or by stabbing him with a knife, 
 etc., etc.) with intent to kill. 
 
 " This at , on the of , 19—." 
 
 {J) Charge: " Burglary, to the prejudice of good order j 
 and military discipline." 
 
 Specification: " In that Private A B , Co. — 
 
 U. S. Infantry, did, in the night time, break into 
 
 and enter the quarters of 1st Lieut. C D , 
 
 U. S. Cavalry, with intent to commit a felony, to wit: 
 {here describe the felony) . 
 
 " This at , about o'clock — . m. on the 
 
 of , 19—." 
 
 {k) Charge: " Larceny, to the prejudice of good order 
 and military discipline." 
 
 Specification: ' ' In that Private A B , Co. , 
 
 U. S. Infantry, did feloniously take, steal, and carry 
 
 away , of the value of dollars ($ ) , the prop- 
 erty of Corporal , Co. , U. S. Infantry. 
 
 " This at , on the of , 19 — ." 
 
 {I) Charge: " Embezzlement, as defined in section 
 5488, Revised Statutes of the United States, in violation 
 of the 62d Article of War." 
 
 Specification: "In that , U. S. Army, being 
 
 the officer in charge for the United States of , and, 
 
 as such officer in charge of said , being a disbursing 
 
 officer of the United States, and having intrusted to him 
 large amounts of public money of the United States, 
 did willfully and knowingly apply for a purpose not 
 authorized by law a large sum of the said moneys so 
 
 llf there be any unlawful touching of the person of another by the 
 aggressor himself or any other substance put in motion by him, battery 
 should be charged. 
 
 /' 
 
 >. 
 
 ll'^ 
 
 K 
 
 
 ' ^ 
 
 
 3 
 
 > 
 
 \^ 
 
 •» 
 
 i\A 
 
 ^ 
 
14:4 FORMS FOR CHARGES. 
 
 intrusted to him, by willfully and knowingly causing 
 the amount hereinafter named to be paid out of the 
 said moneys which were subject to his order and control 
 
 as such officer in charge of said , the account on 
 
 which the same was paid being false, the amount paid 
 not being due or owing from the United States to the 
 
 party paid, or to anyone, and he, the said ■ — , well 
 
 knowing this to be the case; the said account, the 
 amount paid, and the payment being that designated by 
 the following voucher (and the entries therein and the 
 
 indorsements thereon) , submitted by the said , 
 
 with his accounts and marked 'Appropriation for .' 
 
 Voucher No. , $ -, dated , the said payment 
 
 having been caused to be made on or about , by 
 
 the said drawing and delivering a check, as 
 
 such officer in charge of , by which the payment 
 
 was ordered and directed to be made out of moneys of 
 the United States under his control as such officer. 
 
 " This at , on or about the of , 19—." 
 
 (m) Charge: "Perjury,^ to the prejudice of good 
 order and military discipline. ' ' 
 
 Specification: "In that Private A B ,Co. , 
 
 U. S, Infantry, having been duly sworn, at his own 
 
 request, as a witness in his own defense before a 
 
 court-martial, convened at , by order No. , 
 
 dated ■ ■, 19 — , for his trial, did willfully, falsely, and 
 
 corruptly testify as follows: 
 
 "Question by judge-advocate: ? 
 
 "Answer: . 
 
 " Which testimony was false in i\i2d, {specify in what re- 
 spects) . and which testimony was known by him, the said 
 
 A B , to be false, was material to the issue then 
 
 being tried , and was given with intent to deceive the court. 
 
 "This at , on the ■ day of , 19—." 
 
 1 Wharton says (Criminal Law, § 1259)": " Perjury before courts-martial is 
 by statute made indictable in most jurisdictions; but even when a statute 
 does not apply, the weight of authority is that it is perjury at common law." 
 It is a statutory ci-ime, under sec. 6392, R, S. So that false swearing before 
 a court-martial, if it possesses the other elements of perjury, is perjury, and 
 can be tried as such by court-martial under the 62d A. W. The rules of 
 evidence in regard to perjury will then apply. When any of the elements 
 of perjury are lacking the offense will properly be charged as " false swear- 
 ing; " e. y., when the matter is not material to the issue. 
 
surgeon's report. 145 
 
 STATEMENT OF SERVICE. i 
 
 (Surname.) (Christian name.) 
 
 (Rank and organization.) 
 
 {Statement of service required by paragraph 962, Army 
 Regulations.) 
 
 FORMER SERVICE. 
 
 Date of enlistment Date of discharge. Character given on discharge, 
 
 Date of present enlistment -, 19 — . 
 
 Date of confinement under present charges , 19 
 
 (Station.) Commanding . 
 
 (Date.) 
 
 SURGEON'S REPORT OX ALT^EGED DESERTER. 
 
 Fort , 
 
 , 19—. 
 
 Sir: In compliance with par. 125, A. R. , I have the 
 
 honor to report that I have critically examined , 
 
 an alleged deserter, and find him fit for service {or, unfit 
 for service on account of ). 
 
 To the Surgeon. 
 
 Post Adjutant. 
 
 1 See page 64, par. 7, ante. When possible the name of the organization 
 or organizations in which the soldier formerly served should be given. 
 
146 RECORD OF GENERAL COURT-MARTIAL. 
 RECORD OF A GENERAL COURT-MARTIAI..1 
 
 Sec. I —Form for Record.' 
 Case 1. 
 
 INDEX. ^ 
 
 Page. 
 
 Convening order . 1 
 
 Organization of court, etc 2 
 
 Accused (Private , Co., C. A.) introduced 3 
 
 Counsel introduced 3 
 
 Reporter sworn 3 
 
 Convening order read 3 
 
 Challenge, right accorded 3 
 
 Court and judge-advocate sworn 4 
 
 Interpreter sworn 4 
 
 Continuance (if desii-ed) 4 
 
 Adjournment 7,11 
 
 Recess 9 
 
 Court reconvened 7 
 
 Arraignment 4 
 
 Pleas 5 
 
 Evidence: 
 
 For prosecution — 
 
 Sergeant John Jones . 5 
 
 Prosecution rests 7 
 
 For defense — 
 
 Corporal John Smith 8 
 
 Accused testifies 8 
 
 Statement by accused 9 
 
 Address by counsel 9 
 
 Reply by judge-advocate 9 
 
 Findings 9 
 
 Previous convictions submitted 10 
 
 Sentence {or acquittal) 10 
 
 Revision of record 12 
 
 iSee " Record of proceedings," page 63, ante. The record will be clear 
 and legible, and, if practicable, without erasure or interlineation. Any 
 erasure or interlineation made must be authenticated by the initials of the 
 president or of the judge-advocate. In case the record is typewritten a 
 copyable ribbon will be used. 
 
 2 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. 
 
 3 The index will refer to everything essential to the organization and 
 jurisdiction of the court and the regularity of its proceedings. It will also 
 refer to the pages where each witness was sworn and recalled, and the pages 
 where each document was introduced and appended. 
 
RECORD OF GENERAL COURT-MARTIAL. 147 
 
 Proceedings ^ of a general court-martial which con- 
 vened at , , pursuant to the following order: 
 
 {Here insert a literal copy of the order appointing the 
 court, and folloiving it, copies of any orders modifying 
 the detail. ) ^ 
 
 Headquarters Department of , 
 
 Special Orders, 
 
 No.—. 
 
 A general court-martial is appointed to meet at , 
 
 , at . m., on , 19 — , or as soon there- 
 after as practicable, for the trial of such persons as 
 may be properly brought before it. 
 
 DETAIL FOR THE COUKT. 
 
 Major , 5th Cavalry." 
 
 Captain , Coast Artillery Corps. 
 
 Captain , Medical Corps. 
 
 1st Lieutenant , lOtli Infantry. 
 
 1st Lieutenant , 5th Cavalry. 
 
 2d Lieutenant , Coast Artillery Corps. 
 
 2d Lieutenant , 10th Infantry. 
 
 1st Lieutenant , 5th Cavalry, judge-advocate. 
 
 {If less than thirteen members are detailed, the order 
 will state:) 
 
 A greater number of officers can not be assembled 
 without manifest injury to the service. 
 (Pagel.) 
 
 1" Every party tried by a general court-martial shall, upon demand 
 thereof, made by himself or by any person in his behalf, be entitled to a 
 copy of the proceedings and sentence of such court." (114th A. AY.) Ap- 
 plications for copies under this article, will, when received bj* post or other 
 commanders, be forwarded direct to the Judge-Advocate-General. (Par. 
 927, A. E.) 
 
 2 Words inclosed in parentheses, ( ), or brackets, [ ], are simply explana- 
 tory, and will not be copied in the record. 
 
148 RECORD OF GENERAL COURT-MARTIAL. 
 
 {hi case ti^avel is necessary, the following sentence will 
 he added:) 
 
 The journeys required in complying with this order 
 are necessary in the military service. 
 
 By command of Brigadier General : 
 
 (Signed) , 
 
 Adjutant-General, 
 
 Fort , 
 
 , 19-. 
 
 The court met pursuant to the foregoing order at 
 o'clock — . m. 
 
 PKESENT.l 
 
 Major , 5th Cavalry. 
 
 Captain , Medical Corps. 
 
 1st Lieutenant , 10th Infantry. 
 
 1st Lieutenant , 5th Cavalry, 
 
 2d Lieutenant , Coast Artillery Corps. 
 
 1st Lieutenant , 5th Cavalry, judge-advocate. 
 
 Captain , Coast Artillery Corps. 
 
 2d Lieutenant , 10th Infantry. 
 
 {If the cause of absence is known, it will he recorded: 
 if unknown, it will he so stated.y 
 
 (Page 2.) 
 
 1 In the record of the proceedings of a court-martial, at its organization 
 for the trial of a case, the officers detailed as members and judge-advocate 
 will be noted by name as present or absent. In the record of the proceed- 
 ings of subsequent sessions in the same case, the following form of words 
 will be used, subject to such modifications as the facts may require: " Pres- 
 ent, all the members of the court and the judge-advocate." When the ab- 
 sence of an officer who has not qualified, or who has been relieved or excused 
 as a member, has been accounted for, no further note will be made of it. 
 
 2 It is the duty of a judge-advocate to ascertain, if possible, the cause of 
 absence. If a member is absent by order, the number and date of order will 
 be given if the order emanate from the convening or higher authority; but 
 if absent by telegraphic authority, a post order, etc., a copy of the authority 
 should be appended to the record; if absent sick, a surgeon's certificate of 
 sickness and inability to attend will be furnished by the absent member, 
 and appended to the record. 
 
RECORD OF GENERAL COURT-MARTIAL. 149 
 
 The court then proceeded to the trial of Private • 
 
 , th Company, Coast Artillery Corps, who, hav- 
 ing been brought before the court, stated that he did not 
 desire counsel; (or) introduced as counsel. 
 
 [Reporter] ^ 
 
 I was duly sworn as reporter.- 
 
 The order convening the court (and the order or or- 
 ders modifying the detail, if any) was (or were) read to 
 the accused, and he was asked if he objected to being 
 tried by any member present named therein; to which 
 he replied in the negative. 
 
 [Challenges.] 
 
 (or) that he objected to on the following 
 
 grounds: 
 
 {Insert objections. ) 
 
 The challenged member stated: 
 
 {Insert the statement of the challenged member, icho 
 should always be requested to respond to the challenge 
 and inform the court upon its merits. Should the 
 accused, after the statement, desire to put the chal- 
 lenged member upon his voir dire, the record should 
 continue:) 
 
 The accused having requested that the challenged 
 
 member be sworn upon his voir dire,^ was 
 
 duly sworn by the judge-advocate, and testified as 
 follows:^ 
 
 (Page 3.) 
 
 iTo facilitate use of form, subheads "reporter," " challenges," etc., are 
 inserted and followed by marginal lines. To use form in case no reporter is 
 employed, follow form to " reporter," and then omit as far as marginal line 
 under " reporter " extends. In like manner omit when necessary for other 
 subheads. 
 
 2 The reporter must be sworn in each case. For form of oath, see page 
 31, par. 4, ante. 
 
 3 For form of oath, see page 31 , par. 6, ante. 
 
 * The form of examination should be similar to that given for witness for 
 the defense, page 154, post. The accused should first ask his questions, and 
 then the judge-advocate and court such as they may deem pertinent. 
 
150 RECORD OF GENERAL COURT-MARTIAL. 
 
 The challenged member, the accused, (his counsel,) 
 (the reporter,) and judge-advocate then withdrew,^ 
 and the court was closed, and on being opened the 
 president announced in their presence that the objec- 
 tion of the accused was not sustained^ (or) that the 
 objection was sustained. then withdrew. 
 
 The accused was asked if he objected to any other 
 member present ; ^ to which he replied in the nega- 
 tive, (or) that he objected to on the follow- 
 ing grounds: 
 
 (Insert objection in full and 7^ecord as before.) 
 
 The members of the court and the judge-advocate 
 were then duly sworn."* 
 
 [Interpreter.] 
 
 I (If an interpreter is required, lie should now be 
 sworn.)^ 
 
 [Delay.] 
 
 (If delay is desired for cause known, application 
 should now be made and tJie proceedings of the court 
 recorded.*^ If no delay is requested, the record should 
 continue:) 
 
 The accused was then arraigned upon the following 
 charges and specifications:^ 
 
 Charge I: . 
 
 Specification 1st: . 
 
 Specification 2d: . 
 
 (Page 4.) 
 
 1 See page 25, par. 7, ante. 
 
 2 In case of a tie vote see page 22, note 3, ante. 
 
 3 Only one member at a time can be challenged, and a record of tlie pro- 
 ceedings in each case must be made. 
 
 * Whenever the same court-martial tries more than one prisoner on sepa- 
 rate and distinct charges, the court will be sworn at the commencement of 
 each trial and separate proceedings in each case prepared. For forms of 
 oaths see page 30, ante. 
 
 5 For form of oaths see page 31, ante. 
 
 6 See page 32, ante. 
 
 1 The signature and rank of the officer preferring tlie cliarge is not a part 
 of the charge and should not be copied into the record. 
 
RECORD OF GENERAL COURT-MARTIAL. 151 
 
 Charge II: . 
 
 [Plea to the jurisdiction, in abatement or in bar.] 
 To which the accused submitted the following 
 special plea to the jurisdiction {or in abatement, or 
 in bar of trial) : ^ 
 (or) 
 
 To which the accused pleaded^ as follows: 
 To the 1st specification, tst charge, "Guilty;" (or) 
 "Not guilty."* 
 
 To the 2d specification, 1st charge, "Guilty;" (or) 
 "Not guilty." 
 To the 1st charge, " Guilty; " (or) " Not guilty." 
 To the 1st specification, 2d charge, etc. 
 Sergeant John Jones, Co. , Infantry, a wit- 
 ness for the prosecution, was duly sworn, and testified 
 as follows: 
 
 Direct examination: 
 Questions by the judge-advocate:^ 
 Q. Do you know the accused? If so, state who he is. 
 
 A. I do; Private , th Company, Coast 
 
 Artillery. 
 
 {TTie succeeding questions of the judge-advocate and 
 their answers should follow in order. Y 
 Cross-examination : 
 Questions by the accused: 
 g. ? 
 
 {If the accused declines to cross-examine the witness 
 the record shoidd state:) 
 The accused declined to cross-examine the witness. 
 (Page 5.) 
 
 1 If a special plea is made, the plea, the reply of the judge-advocate, and 
 the action of the court thereon will be fully stated; seepage 33, par. 7, ante, 
 and page 155, note 2, post. 
 
 2 See page 33, par. 3, ante, as to admission of intention to desert. 
 
 3 When considered desirable the first question may be as to the identity of 
 the witness. 
 
 •*The record should set forth fully all the teMlmony introduced upon the 
 trial, the oral portion as near as practicable in the precise words of the 
 witness. If the court should decide to expunge any part, it will not be 
 literally expunged or omitted from the record but will not be thereafter 
 considered as part of the evidence. 
 
152 RECORD OF GENERAL COURT-MARTIAL. 
 
 Redirect examination: 
 Questions by the judge-advocate: 
 
 Recross-examination : 
 
 Examination by the court: 
 
 A. 
 
 [Objection to question.] ^ 
 
 Question by a member: ? 
 
 To this question the accused (or party objecting) 
 objected as follows: 
 {Insert objection.) 
 To which the member replied: 
 {Insert reply.) 
 
 The accused (his counsel,) (the reporter,) and 
 judge-advocate withdrew and the court was closed, 
 and on being opened the president announced in 
 their presence that the objection was sustained. 
 {or) was not sustained. 
 {In the latter case the record should continue:) 
 The question was then repeated by the judge- 
 advocate as a question of the court. 
 
 A. . 
 
 {If the court considers it necessary to hear the testi- 
 mony of the witness read or the witness desires to have 
 certain testimony read for correction the record will 
 shotv the fact and the corrections, if any.) '^ 
 (Page 6.) 
 
 1 If a question put by a member, is objected to by another member, the 
 judge-advocate, or the accused, and the objection is sustained, it will be 
 recorded as a question by a member, and tiot answered. If the objection is not 
 sustained it will be recorded as a question by the court, repeated by the judge- 
 advocate, and must be answered. If a question is objected to by anyone, at 
 any time during the trial, the above method of recording the action of the 
 court will be followed. 
 
 2 Should a witness be recalled and again placed on the stand, he will be 
 reminded that he has been sworn in the case and is still under oatlu-. 
 
RECORD OF GENERAL COURT-MARTIAL. 153 
 
 (At the close of the prosecution the record should con- 
 tinue:) 
 
 The judge-advocate announced that the prosecution 
 here rested. 
 
 {If the court adjourns to meet another day the record 
 shoidd continue:) 
 
 The court then, at o'clock — m., adjourned to 
 
 meet at o'clock — m., on . 
 
 » 
 1st Lieut., 5th Cavalry, 
 
 Judge-Advocate.^ 
 
 Fort , 
 
 , 19— 
 
 The court met pursuant to adjournment, at 
 
 o'clock — m. 
 
 PRESENT. ■- 
 
 All the members of the court and the judge-advocate.^ 
 
 The accused, his counsel, and the reporter were also 
 present. 
 
 {If the proceedings of the previous day are required 
 by the court to be read, the fact will be recorded in the 
 folio icing form:) 
 
 The proceedings of were read^ and approved. 
 
 {or) corrected as follows: 
 
 {In latter case, enumerate corrections, giving page 
 and line on which they occur. ) 
 
 (Page?.) 
 
 1 The judge-advocate should sign each day's proceedings. (Par. 988, 
 A. R.) 
 
 ' See page 148, note 1, ante. 
 
 3 If any member is absent, if not already accounted for, ^d except 
 
 {giving cause of absence, if kyioivn). 
 
 4 The reading of previous proceedings will be dispensed with, unless for 
 special reason considered necessary by the court. See page 63, par. 2, ante. 
 
154 RECORD OF GENERAL COURT-MARTIAL. 
 
 Corporal John Smith, Co. , Infantry, a wit- 
 ness for the defense, was duly sworn and testified as 
 follows: 
 
 Direct examination: 
 Question by the judge-advocate: ^ Do you know the 
 accused? If so, state who he is, 
 
 A. . 
 
 Questions by the accused: 
 Q. ? 
 
 ( The examination should be conducted as in case of a 
 witness for the prosecution, the judge-advocate cross- 
 examiningy and the accused, if he so desires, reexamin- 
 ing the witness.) 
 
 (Should the accused wish to testify in his own behalf, 
 the record will continue-.y 
 
 The accused, at his own request, was duly sworn as a 
 witness, and testified as follows: 
 
 Questions by the. accused: 
 
 Q- ? 
 
 {The examination of the accused should be conducted 
 in the same manner as that of any other witness.) 
 
 {If the accused has no other witness to call, the record 
 should continue:) 
 
 The accused had no further testimony to offer and no 
 statement to make. 
 
 {or) having no further testimony to offer, made the 
 following verbal statement in his defense. 
 (Pages.) 
 
 1 Though this is a witness for the defense, the judge-advocate will ask the 
 preliminary question for the purpose of determining his identification of 
 the accused. When considered desirable, the first (juestion may be as to the 
 identity of the witness. 
 
 2 Should the accused not wish to testify in his own behalf the fact may 
 not be animadverted upon. 
 
RECORD OF GENERAL COURT-MAfeTlAL. 155 
 
 (o7^) having no further testimony to offer, submitted a 
 written statement in his defense, which was read to the 
 court, and is hereto appended and marked A.^ 
 
 (or) requested until o'clock — . m. to prepare his 
 
 defense. 
 
 (If the court takes a recess during the time asked for, 
 the record will continue:) 
 
 The court then took a recess until o'clock — . m.; 
 
 at which hour the members of the court, the judge- 
 advocate, the accused, his counsel, and the reporter 
 resumed their seats. 
 
 {Or, if the court has other business before it, the record 
 may continue:) 
 
 The court then proceeded to other business, and at 
 
 o'clock — . m. resumed the trial of this case; at which 
 hour, etc. 
 
 The accused submitted his defense, which was read to 
 the court, and is hereto appended and marked B.- 
 The judge-advocate submitted the case without remark. 
 (or) replied as follows: ^ 
 
 (Insert reply. ) 
 (or) submitted and read to the court a written reply, 
 which is hereto appended and marked C. 
 
 The accused (his counsel,) (the reporter,) and judge- 
 advocate then withdrew and the court was closed, and 
 
 finds the accused. Private , th Company, 
 
 Coast Artillery: 
 
 Of the 1st specification, 1st charge: "Guilty;" (or) 
 "Not guilty." (Page 9.) 
 
 1 All documents and papers made part of the proceedings, or copies of 
 them, will be appended to the record, in the order of their introduction, 
 after the space left for the remarks of the reviewing authority, and marked 
 in such a manner as to afford easy reference. It is not necessary to encum- 
 ber a record by spreading upon it documents or other writings, or matter 
 excluded by the court. The record should simply specify the character of 
 the writings and the grounds upon which they were ruled out. 
 
 2 The statement of the accused, or argument in his defense, and all pleas 
 to the jurisdiction in bar of trial or in abatement, when in writing, should 
 be signed by the accused, referred to in proceedings as having been sub- 
 mitted by him, and appended to the record, whether he is defended by counsel 
 or not. 
 
 3 The judge-advocate is entitled by usage to sum up the case and present 
 an argument at the conclusion of the trial, even though the accused declines 
 to make argument or statement. 
 
156 RECORD OF GENERAL COURT-MARTIAL. 
 
 Of the 2d specification, 1st charge: ''Guilty, except 
 
 the words ' ,' and of the excepted words 'Not 
 
 guilty.'" 
 
 Of the first charge: "Guilty;" {or) "Not guilty;" 
 {or) " Not guilty, but guilty of, etc., ." 
 
 Of the 1st specification, 2d charge, etc. 
 [Previous convictions when accused is found 
 
 GUILTY.] 
 
 {If the accused is found guilty a7id the punishment 
 is discretionary,^ the record should continue: 
 
 The judge-advocate and accused were then recalled 
 and the court opened, and the judge-advocate stated 
 that he had no evidence of previous convictions to 
 submit. 
 
 {or) read the evidence of previous convictions,^ 
 
 copies of which are hereto appended and marked 
 "D," "E,"etc. 
 
 {If the accused has any statement to make in re- 
 gard to his previous convictions, it will he recorded.) 
 
 The accused (his counsel,) (the reporter,) and 
 judge-advocate then withdrew and the court was 
 
 closed, and sentences him, Private , th 
 
 Company, Coast Artillery, . 
 
 [No PREVIOUS CONVICTIONS, OR ACCUSED ACQUITTED.] 
 
 {If the punishment is not discretionary , or the ac- 
 cused is acquitted, the record, after the findings are 
 stated, should continue:) 
 
 And the court does therefore sentence him ;2 etc. 
 
 (or) does therefore acquit him. Private , 
 
 th Company, Coast Artillery. 
 
 (Page 10.) 
 
 1 See page 58, sec. 2, ante. 
 
 2 See "Previous convictions," page 47, ante. When the proof produced 
 is the copy furnished to the company or other commander, in accordance 
 with par. 965, A. E., it will be returned to him and a copy of it attached to 
 the record, if the trial be by general court-martial. (Par. 971, A. R.) The 
 copy should bo bound with the record, as an exhibit, by means of the mar- 
 gin provided for the purpose. 
 
 3 When the judge-advocate records the findings and sentence bj^ the use of 
 a typewriting machine he will certify immediately after the authentication 
 of the record as follows: 
 
 " I certify that I recorded the findings and sentence of the court. 
 
 Jnihjc- Advocate.''^ 
 
RECORD OF GENERAL COURT-MARTIAL. 157 
 
 The judge-advocate was then recalled, and the court 
 
 at . m. proceeded to other business. 
 
 (or) adjourned until . m., the inst. 
 
 {or) adjourned to meet at the call of the president. 
 (or, on completion of the trial of the last case before 
 the court) adjourned sine die. 
 
 Major, 5th Cavalry, 
 
 President. 
 
 1st Lieut. , 5th Cavalry, 
 
 Judge- Advocate.^ 
 {At least two blank pages tvill be left after the ad- 
 journment, and before the exhibits, for the decision and 
 orders of the reviewing authority.) 
 
 FORM OF BRIEF. 
 
 {The papers forming the complete record will be 
 fastened together at the top, and the record folded in 
 four folds, and briefed on the first fold as follows:)^ 
 
 Private, — th Co. Coast Artillery Corps. 
 Trial by general court-martial 
 
 at ; 
 
 Commencing , 19 — ; 
 
 Ending , 19—. 
 
 President: 
 
 Major , 
 
 5th Cavalry. 
 Judge- Advocate: 
 
 1st Lieut. , 
 
 5th Cavalry. 
 (Page 11.) 
 
 1 In case of the death or disability of the judge-advocate see par. 988, A. R. 
 
 2 When the record is completed, the judge-advocate will forward it with- 
 out delay to the convening authority as an inclosure to the indorsement of 
 the judge-advocate returning the original charges. (Par. 990, A. R.) See 
 also page 66, par, 3, and page 75, par. 1, ante. 
 
158 RECORD OF GENERAL COURT-MARTIAL. 
 
 Sec. II.— Form for Revision of Record.^ 
 
 Fort , , 
 
 , 190—. 
 
 The court reconvened at o'clock — . m,, pursuant 
 
 to the following order: 
 
 (Insert copy of order. ) 
 (or) pursuant to the following indorsements: 
 (Insert copies of all indorsements.) 
 
 PEESENT.2 
 
 {Insert names of absentees, arid state cause of absence^ 
 if known.) 
 
 The judge-advocate read to the court the foregoing 
 order. 
 
 (or) the foregoing indorsement of the convening au- 
 thority.^ 
 
 The judge-advocate then withdrew, and the court 
 was closed and revokes its former findings and sentence, 
 and finds the accused, etc. 
 
 (or) revokes its former sentence, and sentences the 
 accused, etc. 
 
 (or) respectfully adheres to its former findings and 
 sentence. 
 
 (or) amends the record by, etc.^ 
 (Page 12.) 
 
 1 See " Revision of record," piige &5, ante. The court is usually recou- 
 vened by indorsement on the original record, returning it to the president 
 of the court with the directions of the convening authority. 
 
 2 If the findings and sentence are to be considered, all the members who 
 voted on them should, if possible, be present. At least five members of the 
 court, who acted upon the trial, must, and the judge-advocate should, be 
 present at a revision; but it is in general neither necessary nor desirable 
 that the accused should bo present. 
 
 3 The judge-advocate will also read any other indorsements there may be 
 connected with the proceedings in revision. 
 
 4 See page 65, par. 2, ante. 
 
RECORD OF SUMMARY COURT. 159 
 
 The judge-advocate was then recalled and the court 
 at . m., etc. 
 
 , Major, 5th Cavalry, 
 
 1st Lieut., 5th Cavalry, President. 
 
 Judge-Advocate. 
 ( The record of revision will be appended to the original 
 proceedings, folloiving them immediately, before the ex- 
 hibits, and the ivhole indorsed by the president of the 
 court and forwarded to the convening authority.) 
 
 RECORD OF A SUMMART COURT. 
 
 Sec. I.— Form for Record.^ 
 
 (Surname.) (Christiau name.) 
 
 Co — -, 
 
 (Rank.) (Regiment or corps.) 
 
 Number of case . 
 
 RECORD OF SUMMARY COURT. 
 
 Trial of the man named above by court appointed by 
 Orders, No. , Headquarters , , 190 — . 
 
 FORMER SERVICE. 
 
 Date of enlistment. Date of discharge. Character given on discharge 
 
 Date of present enlistment, , 190 — . 
 
 Rate of pay per month, . 
 
 In arrest or confinement under present charges since 
 , 190—. 
 
 Dates and serial numbers of previous convictions with 
 sentences within one year preceding commission of 
 offense and during current enlistment: . 
 
 1 Blank forms for summary court record and for monthly report of cases 
 tried (page 161, post), size 3% by 83^ inches, will be furnished by The Adju- 
 tant-General of the Army. The form for summary court record is also in- 
 tended for use in furnishing copies of the record, the same to be certified to 
 be " a true copy " by the commanding officer or adjutant. 
 
160 RECORD OF SUMMARY COURT. 
 
 Charge : Violation Article of War. 
 
 Specification: In that he did . 
 
 Witnesses: 
 
 Officer preferring charges. 
 I hereby consent to trial by summary court on these 
 charges. 
 
 Co. . 
 
 Respectfully referred to the summary court for trial. 
 By order of : 
 
 Adjutant. 
 Findings: 
 
 Of specification : . 
 
 Of charge : . 
 
 Sentence: . 
 
 Number of previous convictions considered, . 
 
 Summary court. 
 Approved , 190 — . 
 
 Commanding Officer. 
 Sec. II. — Instructions. 
 
 (On back of form.) 
 
 The charges and data, as called for on pages 1 and 2 
 of this form, will be prepared in duplicate by the officer 
 preferring the charges — one copy for completion as the 
 record of trial, and the other as the copy for the com- 
 pany records, the latter to be certified to be "a true 
 copy " by the commanding officer or adjutant. 
 
 Each case will be given a serial number in the order 
 of trial, hy the trial officer, and bound in its numerical 
 order in a book of convenient size, each case, when com- 
 pleted, being added to the book by pasting or other 
 
REPORT OF SUMMARY COURT CASES. 161 
 
 metliod. Paper binding will be sufficient, a good qual- 
 ity of tough paper being used for this purpose. 
 
 Charges will be accompanied by the certified copies 
 of previous convictions ' on file with the company rec- 
 ords. If the charges be referred to the summary court 
 for trial, the copies will be returned to the company 
 records immediately after trial. If the charges be re- 
 ferred to a garrison or regimental court-martial (this 
 form being used as a charge sheet), the copies of pre- 
 vious convictions will accompany them, but will be 
 returned to the company records immediately after 
 trial. When the copies of previous convictions accom- 
 pany charges referred to a general court-martial for 
 trial they will be returned to the company records im- 
 mediately after trial, and copies thereof, made and cer- 
 tified by the judge-advocate, will be attached to the 
 record of trial. 
 
 If the only officer present with command sits as sum- 
 mary court no approval of sentence is required, but he 
 will sign the sentence as such officer and affix the date 
 of signature. - 
 
 This form is printed in copying ink, and when filled 
 in on the typewriter a copyable ribbon will be used. 
 
 MONTHLY REPORT OF SUMMARY COURT CASES. 
 
 FORM FOR REPORT. 
 
 (Surname.) (Cbristiau name.) 
 
 ,Co.. , 
 
 (Rank.) (Regiment or corps.) 
 
 REPOKT OF TRIALS BY SIJIMARY COURT. 
 
 At . 
 
 During the month of , 190 — . 
 
 Number of case . 
 
 Charge : Violation Article of War. 
 
 Synopsis of specification or of specifications: 
 
 1 See page 48, par. 2, and page 80, pur. 11, ante. 
 
 2 Par. 966, A. R. 
 
 50963 11 
 
162 RECORD OF GARRISON COURT-MARTIAL. 
 
 Finding : . 
 
 Number of previous convictions considered . 
 
 Rate of pay per month . 
 
 Consent in writing to trial. (" Yes " or " No ") . 
 
 Sentence: (If mitigated, give sentence as mitigated 
 only. Signature of trial officer not to be copied.) 
 
 Date of approval or, if there be no approval, of sen- 
 tence, , 190—. 
 
 INSTRl'CTIONS. 
 
 This report covers one case only and, with other re- 
 ports covering the cases tried during the month, will 
 be transmitted to department headquarters on the last 
 day of the month for file (after examination) in the 
 office of the judge-advocate of the department in alpha- 
 betical order under the name of party tried. At recruit 
 depots and recruiting stations and other places exempted 
 from the jurisdiction of commanders of territorial divi- 
 sions and departments the reports will be forwarded 
 directly to The Adjutant-General of the Army. After 
 having been retained on file for two years the reports 
 may be destroyed. 
 
 RECORD OF A GARRISOX COURT- MARTIAL. i 
 
 Sec. I.— Form for Record. 
 
 Case . 
 
 Proceedings of a garrison court-martial convened at 
 
 , pursuant to the following order: 
 
 Fort , 
 
 ,19-. 
 
 Orders, ) 
 No. . ) 
 
 A garrison court-martial will convene at this post at 
 o'clock a. m., on , 19 — , or as soon there- 
 
 1 The form of record for a garrison court-martial differs from that for a 
 general court-martial onlj' in respect to the form of the order appointing tlie 
 court. The form here given is that for a case in which a plea of " Guilty ' ' 
 is entered; if the prisoner pleads " Not guilty," or makes a special plea, the 
 form for record of a general court will be followed. 
 
RECORD OF GARRISON COURT-MARTIAL. 163 
 
 after as practicable, for the trial of (such persons as 
 have refused to consent in writing to trial by summary- 
 court) . ' 
 
 DETAIL FOR THE COUET. 
 
 Captain . 
 
 1st Lieutenant . 
 
 2d Lieutenant . 
 
 2d Lieutenant , judge-advocate. 
 
 By order of : 
 
 (Signed) , 
 
 1st Lieutenant , 
 
 Adjutant. 
 
 Fort , 
 
 ,19-. 
 
 The court met, pursuant to the foregoing order, at 
 o'clock — . m. 
 
 PRESENT. 
 
 Captain . 
 
 1st Lieutenant . 
 
 2d Lieutenant . 
 
 2d Lieutenant , judge-advocate. 
 
 The court then proceeded to the trial of Private 
 
 , Company , Infantry, who, having refused 
 
 to consent in writing to trial by summary court, was 
 brought before the court, and ha\'ing heard the order 
 convening it read, was asked if he had any objection to 
 being tried by any member named therein; to which he 
 replied in the negative. 
 
 The members of the court and the judge-advocate 
 were then duly sworn, and the accused was arraigned 
 upon the following charge and specification : 
 
 Charge: ^ . 
 
 Specification: . 
 
 To which the prisoner pleaded: 
 
 To the specification, " Guilty." 
 
 To the charge, " Guilty." 
 
 1 See page 84, par. 6, lude. 
 
 2Tbe sisruature of the otticer pieferriiig the chaige will uot be entered iu 
 the record. 
 
1G4 RECORD OF GARRISON COURT-MARTIAL. 
 
 {In case testimony is taken, it is not recorded.') 
 
 The judge-advocate announced that the prosecution 
 here rested. 
 
 The prisoner stated that he had no testimony to offer 
 or statement^ to make. 
 
 The accused and judge-advocate then withdrew, and 
 
 the court was closed and finds the accused, Private 
 
 , Company , Infantry. 
 
 Of the specification, "Guilty." 
 
 Of the charge, " Guilty." 
 
 The judge-advocate and the accused were then recalled 
 and the court opened; and the judge-advocate stated 
 that he had no evidence of previous convictions to 
 submit, {or) read the evidence of previous con- 
 victions. 
 
 The accused and judge-advocate then withdrew, and 
 
 the court was closed and sentences him, Private 
 
 , Company , Infantry, etc. 
 
 The judge-advocate was then recalled and the court 
 at . m., etc. 
 
 Captain , 
 
 President. 
 
 Sd Lieut. , 
 
 Judge- Advocate. 
 {A sine die adjournment will he added to the last case 
 before the court, and the record of each case folded and 
 indorsed in the same manner as that for a general 
 court martial.) 
 
 1 Piir 988, A. R. The record must give, tho names of witnesses examined, 
 both for the prosecution and defense, and will state the fact as to their 
 having been duly sworn. If the accused be sworu as a witness the record 
 should show that it was at his own request. 
 
 -Statements and arguments will not be reduced to writing in the record. 
 
RECORD OF REGIMENTAL COURT-MARTIAL. 1G5 
 
 Sec. IL— Remarks on the Record. 
 
 1. The decision and orders of the post commander, 
 properly dated and over his official signature, will follow 
 immediately after the sentence, adjournment^ or other 
 final proceeding of the court in the case. 
 
 2, " The complete proceedings of a garrison or regi- 
 mental court, except when convened at recruit depots 
 and recruiting stations and other places exempted from 
 the jurisdiction of commanders of territorial divisions 
 and departments by paragraph 187, will be transmitted 
 without delay by the post or regimental commander to 
 department headquarters. Where such courts were 
 convened at recruit depots, recruiting stations, and 
 other exempted places, the reports and records of such 
 courts will be forwarded directly to The Adjutant-Gen- 
 eral of the Army." ^ 
 
 RECORD OF A REGIMENTAL COURT- MARTI AL.2 
 
 Case . 
 
 Proceedings of a regimental court-martial convened 
 
 at , pursuant to the following order: 
 
 Fort , 
 
 , , 19-. 
 
 Orders, 
 
 No. 
 
 A regimental court-martial will convene at this post 
 at o'clock a. m., on , , 19—, or as soon there- 
 after as practicable, for the trial of (such persons as 
 have refused to consent in writing to trial by summary 
 court).^ 
 
 DETAIL FOR THE COURT. < 
 
 {Complete record as in case of garrison court-martial.) 
 
 iPar. 991, A, R. 
 
 2 The form of record for a regimental court differs from that for a garrison 
 or a general court only in respect to the order conveuing the court. 
 
 3 See page 85, par. 3, ante. 
 
 *See page 85, par. 2, and page 108, note 1, ante. 
 
166 PROCEEDINGS OF RETIRING BOARD. 
 
 Case No. . 
 
 proceedings of a retiring board. 
 
 Proceedings of an Army retiring board convened at 
 by virtue of the following orders : 
 
 Special Orders, | WAR DEPARTMENT, 
 
 No. . f Washington, , 190-. 
 
 10. Under instructions from the President, and in 
 accordance with section 1246, Revised Statutes, an army- 
 retiring board is appointed to meet at , , from 
 
 time to time, at the call of the president of the board, 
 for the examination of such officers as may be ordered 
 before it. 
 
 DETAIL FOR THE BOARD. 
 
 Colonel , — Infantry. 
 
 Lieutenant Colonel , adjutant general. 
 
 Major ■ , Medical Corps. 
 
 Major , — Infantry. 
 
 First Lieutenant , Medical Corps. 
 
 First Lieutenant , — Infantry, recorder. 
 
 Such journeys as it may be necessary for the mem- 
 bers and recorder of the board to make in attending its 
 sessions and returning to their proper stations are neces- 
 sary for the public service. 
 
 ***** 
 By order of the Secretary of War: 
 
 Major General, Chief of Staff. 
 Official : 
 
 Adjutant General. 
 
PROCEEDINGS OF RETIRING BOARD. 167 
 
 , , 19-. 
 
 The board met pursuant to the foregoing order at 11 
 o'clock a. m. 
 
 PKESENT, 
 
 Colonel , — Infantry. 
 
 Lieutenant Colonel , adjutant general. 
 
 Major , Medical Corps. 
 
 Major , — Infantry. 
 
 1st Lieutenant . Medical Corps. 
 
 1st Lieutenant , — Infantry, recorder. 
 
 Captain , , appeared before the board 
 
 pursuant to par. , Special Orders No. , War 
 
 Department, dated , 19 — , and stated that he did 
 
 not desire counsel; (or, introduced as counsel. ) 
 
 The order convening the board was then read, and 
 
 Captain was asked if he had any objection to 
 
 offer to any member present; to which he replied in the 
 negative. 
 
 (or) that he objected to on the following 
 
 grounds: 
 
 {Insert objections.) 
 
 The challenged member stated. 
 
 {Insert the statement of the challenged member, who 
 should be requested to respond to the challenge and in- 
 form the board upon its merits. Should the officer before 
 the board for examination desire to put the challenged 
 member on his voir dire, the record should continue:) 
 
 Captain , having requested that the chal- 
 lenged member be sworn' on his voir dire, ■ 
 
 was duly sworn by the recorder, and testified as follows: 
 
 Question by Captain : 
 
 * * * * * 
 
 The board was then closed, and, on being opened, its 
 decision was announced that the objection was not sus- 
 tained, {or) that the objection was sustained. {In the 
 
 1 For form of oath see page 31, ante. 
 
168 PROCEEDINGS OF RETIRING BOARD. 
 
 latter case the record should state that the challenged 
 member then withdi^ew.) 
 
 Captain was then asked whether he objected 
 
 to any other member; to which, etc., as before.^ 
 
 The members of the board and the recorder ^ were 
 then duly sworn. 
 
 {If the officer desires to be retired, the record will con- 
 tinue:) 
 
 Captain was then asked whether he desired 
 
 to be retired, and answered in the affirmative. He was 
 then duly sworn as a witness, and testified as follows: 
 
 Question by the recorder (or by the board): 
 
 Q. Please state the nature of your disability and its 
 cause, and how long you have suffered from it? 
 
 A. ( The officer can here make an oral statement or sub- 
 mit a ivritten one. If a ivritten statement is submitted 
 the record will state:) 
 
 The witness submitted a written statement, which was 
 read to the board, and is hereto attached marked "A." 
 
 Q. Is the statement submitted by you correct? 
 
 A. Yes. 
 
 {The board may then ask further questions.) 
 
 Q. Do you desire to make any further statement ? 
 
 A. . 
 
 ( When the officer objects to retirement, he will not be 
 examined at this stage of the proceedings, but may intro- 
 duce evidence or make a statement, as hereinafter indi- 
 cated.) 
 
 iRve being, under sec. 1246, R. S., the minimum number of members of 
 a retiring board, it must, when reduced below that number by challenge, or 
 if the board is left without the proportion of medical officers required by 
 said section, adjourn and report the facts to the convening authority. When 
 the board again meets the officer being examined will be accorded the right 
 of challenge as before. 
 
 2 If there be a reporter, he will also be sworn. For form of oath see page 
 U,ante. 
 
PROCEEDINGS OF RETIRING BOARD. 169 
 
 Major , surgeon, a member of the board,was 
 
 then duly sworn, and testified as follows: 
 
 Q. Please submit to the board the result of your ex- 
 amination of Captain . 
 
 The witness submitted a written report signed by him- 
 self and Assistant Surgeon , also a member of 
 
 the board, which was read to the board and is attached, 
 marked " B." 
 
 Q. From what cause does Captain — 's disa- 
 bility proceed ? 
 
 A. . 
 
 Q. Is the disability permanent? 
 . A. . 
 
 Q. Is Captain 's disability such as to incapacitate 
 
 him for active service ? 
 
 A. . 
 
 ***** 
 
 {The examination of the witness should he conducted 
 so as to bring out all material facts on the lines indi- 
 cated.) 
 
 Captain stated that he had no question to 
 
 ask, {or) asked the following questions: 
 
 ***** 
 
 ( The other medical member of the hoard should then 
 he similarly interrogated.) 
 
 The recorder then submitted certain papers referred 
 to the board from the Office of The Adjutant General 
 of the Army, which were read to the board, and are at- 
 tached, marked . 
 
 Captain had no further evidence to submit 
 
 nor statement to make. {When there is such evidence 
 or statement, the record will didy set it forth.) 
 
 The board was then closed for deliberation, and, hav- 
 ing maturely considered the case, finds that Captain 
 
 is incapacitated for active service and that the 
 
 cause of said incapac'ty is . And the board further 
 
170 FORMS FOR SENTENCES. 
 
 finds that said incapacity is {or is not) an incident of 
 service. 
 The board then adjourned. ^ 
 
 -, President of the Board. ^ 
 
 Recorder. 
 
 FORMS FOR SENTENCES. 
 
 In sentences imposing a loss of rank or files upon an 
 officer the court may fix a place on the army list where 
 the name of the accused will be placed as a result of the 
 sentence, as, for instance, at the foot of the list of first 
 lieutenants of infantry, or the court may mention the 
 number of files to be lost, as, for instance, to lose ten 
 files in military rank. In this case the court should not 
 undertake to state where on the army list the name of 
 the ficcused will appear. 
 
 Yoriail. Reduction: * * * " to be reduced to the 
 ranks." ^ 
 
 1 {Or ivhen the board wishes to hear the record read:) 
 
 The board then adjourned to meet at o'clock — . m. 
 
 Recorder. 
 
 SECOND day's proceedings. 
 
 The board met pursuant to adjournment. 
 
 Present: All the members and the recorder. 
 
 The foregoing proceedings were then read and approved. 
 
 The board then adjourned. 
 
 , President of the Board. 
 
 Recorder. 
 
 2 It is not necessary that the proceedings should be authenticated by the 
 signatures of all the members of the board. 
 
 3 See pages 50 and (>(», and page 81, par. 13, (uite. 
 
SUMMONS FOR MILITARY WITNESS. 171 
 
 Form 2. Confinement: * * * " to be confined at 
 
 hard labor, ^ under charge of the post guard, for ( — ) 
 
 days." 
 
 Forms. Forfeiture: * * * "to forfeit (— ) 
 
 dollars of his pay,"^ now due or to become due." ^ 
 
 Form 4. Confinement and forfeiture: * * * "to 
 be confined at hard labor, under charge of the post guard, 
 
 for ( — ) months, and to forfeit ( — ) dollars per 
 
 month for the same period." 
 
 Form 5. Dishonorable discharge and forfeiture of pay 
 and allowances: * * * " to be dishonorably dis- 
 charged the service of the United States, forfeiting all 
 pay and allowances due him." 
 
 Form 6. Dishonorabledischarge,forfeitureofpayand. 
 allouxinces, and confinement : * * * " to be dishon- 
 orably discharged the service of the United States, for- 
 feiting all pay and allowances due him, and to be confined 
 at hard labor at such post {or, in such penitentiary) 
 {or, at such place) as the reviewing authority may direct, 
 for ( — ) years." 
 
 SUMMONS FOR MILITARY TVITNESS.* 
 
 To 
 
 You are hereby summoned to appear on the day 
 
 of , 19 — , at o'clock — . m. , before a general 
 
 court-martial, convened at , by Special Orders, 
 
 1 Unless hard labor be imposed by a sentence it can not be required of the 
 prisoner. 
 
 ^Detention of pay is no longer authorized; and under the acts of February 
 12, 1895 (28 Stat. L., 655), and March 16, 1896 (28 Stat. L., 60), pay can no 
 longer be retained. 
 
 3 By adding the words "now due or to become due" the pay rolls will 
 generally be simplified, by permitting all of the forfeiture to be collected at 
 the next payment. 
 
 •^See par. 11, page 38, ante. 
 
172 SUBPCENA DUCES TECUM. 
 
 No. , Headquarters , dated , 19 — , as 
 
 a witness for the in the case of . 
 
 Judge- Advocate of the Court- Martial. 
 
 SUBPCENA^ FOR CIVILIAN WITNESS. 
 
 United States ) 
 
 vs. [• Subpoena. 
 
 The President of the United States, to , greeting: 
 
 You are hereby summoned and required to be and 
 
 appear in person on the day of , 19 — , at 
 
 o'clock — . m., before a general court-martial of the 
 
 United States, convened at , by Special Orders, 
 
 No. , Headquarters , dated , 19 — , 
 
 then and there to testify and give evidence as a witness 
 
 for the in the above-named case. And have you 
 
 then and there this precept. 
 Dated at , this day of , 19 — . 
 
 Judge-Advocate of the Court-Martial. 
 
 SUBPCENA 1 DUCES TECUM. 
 
 {Civilian witness.) 
 
 United States 
 
 vs. )■ Subpoena. 
 
 The President of the United States, to , greeting: 
 
 You are hereby summoned and required to be and 
 
 appear in person on the day of , 19 — , at 
 
 o'clock — . m., before a general court-martial of the 
 
 United States, convened at , by Special Orders, 
 
 No. , Headquarters , dated , 19—, 
 
 then and there to testify and give evidence as a witness 
 
 1 Fees must be tendered or paid under act of March 2, 1901, page 131, 
 ante. See also par. 1, pa^e 43. auff. 
 
SUBPCENA FOR DEPOSITION. 173 
 
 for the in the above-named case; and you are hereby- 
 required to bring with you, to be used in evidence in 
 said case, the following-described documents, to wit: 
 
 . And have you then and there this precept. 
 
 Dated at , this day of , 19 — . 
 
 Judge-Advocate of the Court-Martial. 
 
 SUBPCENA FOR CIVILIAN AVITNESS. 
 
 {For deposition.) 
 United States j 
 
 vs. - Suhpcena. 
 
 The President of the United States, to , greeting: 
 
 You are hereby summoned and required to be and 
 
 appear in person on the day of , 19 — , at 
 
 o'clock — , m., before at , detailed to take 
 
 your deposition for use before a general court-martial 
 
 of the United States, convened at , by Special 
 
 Orders, No. , Headquarters , dated 
 
 , 19—, then and there to testify and give evidence 
 
 as a witness for the in the above-named case. And 
 
 have you then and there this precept. 
 Dated at , this day of , 19—. 
 
 Judge-Advocate of the Court-Martial. 
 
 RETURN OF SERVICE. 
 
 {Indorsement of preceding writs.y 
 United States 
 
 , 19-. 
 
 I certify that I made service of the within subpoena 
 on , the witness named therein, by personally 
 
 lOn the back of each form of writ are forms for both certificate and 
 affidavit. 
 
174 WARRANT OF ATTACHMENT. 
 
 delivering to him in person a duplicate of the same at 
 , on the day of , 19—. 
 
 ' I ss. 
 
 , being duly sworn, on his oath states that 
 
 the foregoing certificate is true. 
 
 Subscribed and sworn to this day of . 19 — , 
 
 before me.^ 
 
 WARRANT OF ATTACHMENT. 
 
 United States 
 vs. 
 
 The President of the United States, to , greeting: 
 
 Whereas, , of , was on the day 
 
 of , 19 — , at , duly subpoenaed to appear and at- 
 tend at , , on the day of , at o'clock 
 
 — . m., before a general court-martial duly convened by 
 Special Orders, No. , dated Headquarters Depart- 
 ment of , , 19 — , to testify on the part of 
 
 the in the above-entitled case; and whereas he has 
 
 failed to appear and attend before said general court- 
 martial to testify as by said subpoena required, and 
 whereas he is a necessary and material witness in behalf 
 
 of the in the above-entitled case. 
 
 NoWy therefore, by virtue of the power vested in me, 
 the undersigned, as judge-advocate of said general court- 
 martial, by section 1202 of the Revised Statutes of the 
 United States, you are hereby commanded and empow- 
 ered to apprehend and attach the said , wher- 
 ever he may be found within the of ,^ and 
 
 1 After service, as above indicated, the original subpoena should be at once 
 returned to the judge-advocate of the court; if the \vitness can not be found, 
 the judge-advocate should be so informed. 
 
 2 State, Territory, or District where the court sits. 
 
INTERROGATORIES AND DEPOSITION. 175 
 
 forthwith bring him before the said general court- 
 martial assembled at , to testify as required by- 
 said subpcBna. 
 
 Judge- Advocate of said 
 General Court-Martial. 
 Dated , , 19—. 
 
 INTERROGATORIES AND DEPOSITION.^ 
 
 INTERROGATORIES. 
 
 The United States ) 
 vs. 
 
 The following interrogatories and cross-interrogatories 
 
 to be propounded under the 91st Article of War, to 
 
 , stationed {or residing)'- at , a witness for 
 
 the prosecution (or defense)"^ in the above -entitled case 
 now pending and to be tried before the general court- 
 martial convened at , by paragraph , Special 
 
 Orders No. — , Headquarters Department of , dated 
 
 ^ f. \ accepted by the court in open session, 
 
 ' ' ^^^ ) agreed upon by both parties in ad- 
 the — having been given reasonable opportunity to sub- 
 vance of the assembling of the court and subject to excep- 
 
 mit cross-interrogatories I ,^^^ ^^^ respectfully for- 
 tions when read m court ) ^ •' 
 
 warded to the convening authority with the request that 
 some suitable officer may be designated to take, or cause 
 to be taken, the deposition of said witness thereon: 
 
 First interrogatory: Are you in the military service of 
 the United States? If yea, w^hat is your full name, rank, 
 
 1 See page 40, ante. 
 
 - Erase the word inappropriate to the case. With the consent of the oppo- 
 site party the deposition of a witness residing within the State, Territory, 
 or District in which the court sits may be taken and read in evidence. A 
 written stipulation signed by both parties should, in such a case, be attached 
 to this paper before it is signed. 
 
 3 Erase the line inappropriate to the case. 
 
176 INTERROGATORIES AND DEPOSITION. 
 
 organization, and station? If nay, what is your full 
 name, occupation, and residence? 
 
 Second interrogatory: Do you know the accused, a 
 
 in ? If yea, how long have you known him? 
 
 Third interrogatory: ■ ? 
 
 Etc. 
 
 First cross-interrogatory: ? 
 
 Etc. 
 
 First interrogatory by the Court: ? 
 
 Etc. 
 Dated at , this day of , 19—. 
 
 Judge-Advocate. President.^ 
 
 Headquarters Department of . 
 
 , 19-. 
 
 , stationed {or residing) ^ at , is 
 
 hereby designated to take, or cause to be taken, the 
 
 deposition of the said , a witness on the part of 
 
 the in the case of the United States against 
 
 , now pending before a general court-martial at 
 
 . The deposition, when taken, to be sent by 
 
 him to , the president of said court at . 
 
 By command of General . 
 
 Adjutant-General. 
 
 DEPOSITION. 
 
 , the witness above named, having been first 
 
 duly sworn by me, , a^ , stationed {or 
 
 1 If taken in advance of the assembling of the court, the interrogatories 
 should be signed by the judge-advocate and the accused instead of the 
 president and judge-advocate. 
 
 2 Erase the word inappropriate to the case. 
 
 •'^Insert official character: as "Trial Officer Summary Court," "Notary 
 Public," etc. 
 
ACCOUNT OF 'CIVILIAN WITNESS. 177 
 
 residing)' at , doth depose and say for full 
 
 answers to the foregoing interrogatories, as follows: 
 
 To the first interrogatory : . 
 
 Etc. . 
 
 (Signature of witness.) 
 
 Subscribed and sworn to before me this day of 
 
 , 19-. 
 
 I, , the oflBcer designated to cause the depo- 
 sition of the said to be taken on the foregoing 
 
 interrogatories and cross-interrogatories, do certify that 
 it was duly made and taken under oath. 
 
 ACCOUXT OF CIVILIAN^ WITNESS^ NOT IN 
 GOVERNMENT EMPLOY. 
 
 Form 13A— Pay Department. 
 
 Voucher No. . Pay, 190— 
 
 The United States to , Civilian witness. Dr. 
 
 From , 190—, to , 190—: 
 
 For mileage from to and return, being 
 
 miles, at five cents per mile 
 
 For allowance while in attendance on said court, 
 
 from , 190—. to , 190—, as per certificate 
 
 of Judge-Advocate hereon, days, at $ — per 
 
 day 
 
 TotaL 
 
 Cts. 
 
 1 Erase the word inappropriate to the case. 
 
 2 The jurat to be signed by the officer administering the oath, who will 
 add his official designation. (See page 40, par. 4, uute.) If the oath is ad- 
 ministered by a notary public, his seal will be affixed to the deposition. 
 
 3 This certificate, regarded as the formal return, will be signed by the officer, 
 civil or military, who has been designated to take, or cause to be taken, the 
 deposition ; and will be signed by him whether or not he is the officer who 
 administered the oath. 
 
 4 The forms for " Summons for a military witness," for " Subpoenas for a 
 civilian witness," for a " Warrant of attachment," and for a deposition are 
 obtained from The Adjutant-General. The forms for accounts of civilian 
 witnesses and of reporters are obtained from the Paymaster-General. 
 509G3 12 
 
178 ACCOUNT OF CIVILIAN WITNESS. 
 
 (Certification and account to be completely filled in by Judge- Advocate, or 
 before signature by Judge-Advocate, without alteration or erasure thereafter.) 
 
 I certify that , a civilian not in Govern- 
 ment employ, has been in attendance as a material 
 witness from , 190—, to , 190 — , inclusive, be- 
 fore a. court-martial, duly convened at this place, 
 
 and that he was duly summoned thereto from and 
 
 was not furnished transportation by the Government 
 for any portion of the journey. 
 
 (XOT TO BE SIGNED IN DUPLICATE.) 
 
 Place, . , 
 
 Judge- Advocate.^ 
 
 Paid by Check No. , on , dated , 190—, 
 
 for $ . 
 
 (To be completely filled in before signature by payee without alteration 
 or erasure thereafter.) 
 
 Received , 190—, of , Paymaster, U. S. 
 
 Army, m cash ^^j^ dollars, in full of above account. 
 
 (not to BE SIGNED IN DVPLICATE.) 
 
 , Witness. 
 
 (The claimant will not sign the above receipt except when the payment ia 
 made in cash.) 
 
 ACCOUNT OF CIVILIAN WITNESS (BY DEPOSI- 
 TION) NOT IN GOVERNMENT EMPLOY. 
 
 Form 13C— Pay Department. 
 
 Voucher No. . Pay, 190 — 
 
 TJie United States, to , Dr. 
 
 
 Dollars, 
 
 Ots. 
 
 From , 190—, to , 190—: 
 
 For mileage from to and return, being 
 
 
 
 For allowance while in attendance, giving deposition 
 
 for use before said court, from , 190 — , to , 
 
 190—, as per certificate hereon, days, atg 
 
 per day _ 
 
 
 
 
 
 
 Total 
 
 
 
 
 
 
 1 If the witness be summoned for attendance before a summary court, the 
 summary court officer will make the necessary certificate. (Digest Opin. 
 J. A. G., sec. 2406.) 
 
ACCOUNT OF CIVILIAN WITNESS. 179 
 
 (Certification and account to be completely filled in by officer, or before 
 signature by officer, without alteration or erasure thereafter.) 
 
 I certify that , a civilian not in Govern- 
 ment employ, has been in attendance giving deposition 
 for tise of a court-martial convened under attached 
 
 orders from , 190—, to , 190—, inclusive, and 
 
 that he was duly summoned thereto from , and 
 
 was not furnished transportation by the Government 
 for any portion of the journey. 
 
 (not to be signed in duplicate. ) 
 
 Place, . 5 
 
 Date, . , 
 
 Judge-Advocate or other commis.sioned officer. 
 
 Paid by Check No. , on , dated , 190—, 
 
 for $ . 
 
 (To be completely filled in before signature by payee without alteration 
 or erasure thereafter.) 
 
 Received , 190—, of , Paymaster, U. S. 
 
 Army, in cash yoo dollars, in full of above account. 
 
 (not to be signed in duplicate.) 
 
 , Witness. 
 
 (The claimant will not sign the above receipt except when the payment is 
 made in cash.) 
 
 NOTES ON FORMS 13A AND 13C. 
 
 The Paymaster is, under paragraphs 999 to 1003, 
 Army Regulations, 1908, governed by the following 
 rules in the treatment of voucher for travel expenses of 
 civilian witnesses before military courts: 
 
 1. The voucher must be accompanied by authenti- 
 cated copy of the order convening the court or appoint- 
 ing summary court. 
 
 2. The certificate of the jndge-advocate or summary 
 court officer (on face of voucher) is required in all 
 cases. 
 
 3. A civilian not in Government employ, duly sum- 
 moned to appear as a witness before a military court, 
 
180 ACCOUNT OF CIVILIAN WITNESS. 
 
 or at a place where his deposition is to be taken for use 
 before such court, will receive $1.50 a day for each day 
 of actual attendance for such purpose, and 5 cents a 
 mile from place of residence to place of trial or taking 
 deposition, and return, except as follows: 
 
 Porto Rico and Cuba, $1.50 a day, 15 cents a mile for 
 necessary travel by stage or private conveyance and 10 
 cents by railway or steamship line. 
 
 Alaska, east of one hundred and forty-first degree 
 west longitude, $2 a day and 10 cents a mile; west of 
 that degree, $4 a day and 15 cents a mile. 
 
 Montana, Wyoming, Colorado, New Mexico, Arizona, 
 Utah, Idaho, Washington, Oregon, Nevada, California, 
 $3 a day, 15 cents a mile for necessary travel by stage 
 or private conveyance, 5 cents by railway or steamship 
 line, and $3 a day for the time necessarily occupied in 
 such travel. (See A. R., 1000, amended by G. O. 128, 
 1908. Also R. S., 848; sec. 30, act June 6, 1900, 31 Stat., 
 332; act Mar. 2, 1901, 31 Stat., 954; act June 13, 1902, 32 
 Stat., 35; Regs. Atty. Gen., July 21, 1902; act May 27, 
 1908, Public 141.) 
 
 A retired army officer is a civilian not in Govern- 
 ment employ in contemplation of Army Regulation 
 1000. (lOComp.,51.) 
 
 Civilian witnesses, not in Government employ, sum- 
 moned to attend courts-martial in the Philippine 
 Islands, are entitled to the per diem and mileage 
 allowed witnesses in attendance upon United States 
 courts, i. e., $1.50 per day for each day in attendance 
 on the court, and 5 cents per mile for the distance 
 traveled to and from the court. If furnished with 
 transportation by the Government, 42.858 per cent of 
 the 5 cents per mile will be deducted as cost of trans- 
 portation furnished and 57.142 per cent allowed for 
 subsistence and other expenses of the witness. 
 
 An employee of the civil government of the Philip- 
 pine Islands, paid from insular funds, is not in the 
 employ of the Government within the meaning of 
 Army Regulation 999. 
 
ACCOUNT OF CIVILIAN WITNESS. 181 
 
 In case a witness duly subpoenaed before a general 
 court-martial refuses to appear or qualify as a witness 
 or to testify or produce documentary evidence as re- 
 quired by law, he will at once be tendered or paid by 
 the nearest paymaster these fees and mileage and will 
 thereupon be again called upon to comply with the re- 
 quirements of law. Civilian witnesses will be paid by 
 the Pay Department. (A. R., 1001.) 
 
 4. The certificate of the judge-advocate will be evi- 
 dence of the fact and period of attendance and place 
 from which summoned, and will be made on the voucher. 
 
 5. Upon execution of the certificate the witness will 
 be paid upon his discharge from attendance, without 
 awaiting performance of return travel. The charges 
 for return journeys will be made upon the basis of the 
 actual charges allowed for travel to the court. 
 
 No other items will be allowed. 
 
 6. Travel must be estimated by the shortest usually 
 traveled route — by established lines of railroad, stage, 
 or steamer — the time occupied to be determined by the 
 official schedules, reasonable allowance being made for 
 unavoidable detention. 
 
 7. Whenever needed, judge-advocates can procure 
 blank accounts for civilian witnesses from any army 
 paymaster or the Paymaster-General's office. The ac- 
 counts may then be made out upon the witness's dis- 
 charge from attendance. If no paymaster be present 
 at the place where the court sits, the accounts, authen- 
 ticated as above directed, may be transmitted to any 
 paymaster with confidence that the witness will receive 
 his pay without unnecessary delay. 
 
 8. Accounts of citizen witnesses are not transferable. 
 (See Circular 13, A. G. O.. 1895.) 
 
 9. Signature of witnesses when signed by mark must 
 be witnessed. 
 
182 ACCOUNT OF CIVILIAN WITNESS. 
 
 ACCOUNT OF CIVILIAN WITNESS IN GOVERN- 
 MENT EMPLOY. 
 
 Form 13B— Pay Department. 
 
 Voucher No. . Pay, 190 — . 
 
 The United States, to , Civilian witness, Dr. 
 
 From , 190—, to , 190—: 
 
 For actual cost of travel from to and return, 
 
 as per memorandum attached 
 
 For actual cost of meals and rooms while traveling to 
 and from said court between above dates, inclu- 
 sive, days 
 
 For actual cost of meals and rooms while in attend- 
 ance on said court from , 190 — , to , 190 — , 
 
 as per certificate of the Judge-Advocate hereon, 
 
 days (see note 7, post) 
 
 Total. 
 
 I solemnly swear that the above account is correct; 
 that I have not been furnished with Government trans- 
 portation for any part of the journey for which travel 
 fare is charged; and that the journey was performed 
 without unnecessary or avoidable delay. 
 
 , Witness. 
 
 Sworn to and subscribed before me at , on this 
 
 day of , 190—. 
 
 Judge- Advocate. 
 Paid by Check No. , on , dated , 190—, for 
 
 (To be completely filled in before signature by payee without alteration or 
 erasure thereafter.) 
 
 Received , 190 — , of , Paymaster, U. S. Army, 
 
 in cash j^-^ dollars, in full of above account. 
 
 (Not to be signed in duplicate.) 
 
 , Witness. 
 
 (The claimant will not sign the above receipt except when the payment is 
 made in cash. ) 
 
ACCOUNT OF CIVILIAN WITNESS. 183 
 
 (Certification and account to be completely filled in by Judge-Advocate, or 
 before signature by Judge-Advocate, without alteration or erasure thereafter. ) 
 
 I certify that , a civilian in Government 
 
 employ, has been in attendance as a material witness 
 
 fiom , 190—, to , 190—, inclusive, before a 
 
 court-martial, duly convened at this place, and that he 
 was duly summoned thereto from . 
 
 (not to be signed in duplicate.) 
 
 Judge- Advocate. ^ 
 
 Place . 
 
 Date , 190—. 
 
 NOTES ON FORM 13B. 
 
 The Paymaster is, under paragraphs 999 to 1003, Army 
 Regulations, 1908, governed by the following rules in 
 the treatment of voucher for travel expenses of civilian 
 witnesses before military courts: 
 
 1. The voucher must be accompanied by authenticated 
 copy of the order convening the court or appointing 
 summary court. 
 
 2. The affidavit of witness and judge-advocate's or 
 summary court officer's certificate are required in all 
 cases. 
 
 3. A retired army officer is a civilian not in Govern- 
 ment employ in contemplation of Army Regulation 
 1000. (10Comp.,"51.) 
 
 In case a witness duly subpoenaed before a general 
 court-martial refuses to appear or qualify as a witness 
 or to testify or produce documentary evidence as re- 
 quired by law, he will at once be tendered or paid by 
 the nearest paymaster these fees and mileage and will 
 thereupon be again called upon to comply with the 
 requirements of law. Civilian witnesses will be paid 
 by the Pay Department. (A. R. , 1001 . ) 
 
 4. The items of expenditure authorized in paragraphs 
 999 to 1003, Army Regulations, will be set forth in 
 detail in a memorandum which will be attached to each 
 
 1 See note 1, page 178, ante. 
 
184 ACCOUNT OF CIVILIAN WITNESS. 
 
 voucher. The correctness of the items will be attested 
 by the affidavit of the witness, to be made, when practi- 
 cable, before the judge-advocate. 
 
 5. The certificate of the judge-advocate will be evi- 
 dence of the fact and period of attendance and show 
 place from which summoned, and will be made on the 
 voucher. 
 
 6. Upon execution of the affidavit and certificate the 
 witness will be paid upon his discharge from attend- 
 ance, without awaiting performance of return travel. 
 The charges for return journeys will be made upon the 
 basis of the actual charges allowed for travel to the 
 court. 
 
 No other items will be allowed. 
 
 7. Civilian witnesses in Government employ will 
 receive as follows: 
 
 (a) Amount actually paid for cost of transportation 
 or travel fare. 
 
 {h) Amount actually paid for cost of transfers to and 
 from railway stations, not exceeding 50 cents for each 
 transfer. 
 
 (c) Amount actually paid for cost of one double berth 
 in sleeping car or on steamers where an extra charge 
 is made therefor. 
 
 (d) The actual cost of meals and rooms at a rate not 
 exceeding $3 per day for each day unavoidably consumed 
 in travel or in attendance on the court. 
 
 8. Travel must be estimated by the shortest available 
 usually traveled route ; the charge for cost of travel — 
 items (a), (h), (c) — by established lines of railroad, 
 stage, or steamer should not exceed the usual rates in 
 like cases; the time occupied to be determined by the 
 official schedules, reasonable allowance being made for 
 unavoidable detention. 
 
 9. The voucher, or the order for attendance, will be 
 presumed to show in all cases, by indorsement or other- 
 wise, if transportation in kind or commutation of rations 
 has been furnished. 
 
ACCOUNT OF CIVILIAN WITNESS. 185 
 
 Transportation in kind will, for any distance covered 
 thereby, be a bar to payment of item (a). 
 
 Indorsements of transportation furnished are scru- 
 tinized to ascertain if any part of item (c) has been 
 included. 
 
 Commutation of rations will be a bar to payment of 
 item (d). 
 
 Transportation and commutation of rations will be a 
 bar to any payment. 
 
 10. No per diem allowance can be made where the 
 attendance upon court does not require the witness to 
 leave his station. (This applies only to civilians in 
 Government employ.) 
 
 11 . Compensation to civilians in or out of Government 
 employ, for attendance upon civil courts, is payable by 
 the civil authorities. (A. R., 1004.) 
 
 12. If the witness is in Government employ the judge- 
 advocate will state the fact. If it does not appear in 
 the certificate or elsewhere in the papers, and is not 
 known to the pajTuaster, it will be assumed that the 
 witness is not in Government employ. 
 
 13. Whenever needed, judge-advocate can procure 
 blank accounts for civilian witnesses from any army 
 paymaster or the Paymaster-General's office. The ac- 
 counts may then be made out upon the witness's dis- 
 charge from attendance. If no paymaster be present at 
 the place where the court sits, the accounts, authenti- 
 cated as above directed, may be transmitted to any pay- 
 master, with confidence that the witness will receive 
 his pay without unnecessary delay. 
 
 14. Accounts of citizen witnesses are not transferable. 
 (See Circular 13, A. G. O., 1895.) 
 
 15. Signature of witnesses when signed by mark must 
 be witnessed. 
 
186 
 
 ACCOUNT OF REPORTER. 
 
 ACCOUNT OF REPORTER.! 
 Form 27— Pay Department. 
 
 Voucher No. — . 
 
 The United States, to 
 
 Pay, 19- 
 
 Eeporter, Dr, 
 
 Date. 
 190—. 
 
 To services as a reporter before a con- 
 vened at , puisuant to Special Orders, 
 
 No. , Department , , 190 — : 
 
 To hours before the , at 
 
 (Court, board, or commission.) 
 
 fl per hour 
 
 To words, at 15 cents per 100 words 
 
 To words, at 10 cents per 100 words 
 
 To words, carbon copies, at 2 cents per 
 
 100 words 
 
 To days in going to, in attendance on, 
 
 and returning from said , at 
 
 (Court, board, or commission.) 
 $3 per day 
 
 To mileage for travel between and 
 
 in going to and returning from the court 
 being miles, at — cents a mile 
 
 Total 
 
 Dollars. 
 
 Cents. 
 
 (Certification and account to be completely filled in by Judge-Advocate, 
 before signature by Judge- Advocate, without alteration or erasure thereafter.) 
 
 I CERTIFY that was employed by me as a 
 
 reporter for a , under the annexed authority, and 
 
 that the account for his services as stated above is cor- 
 rect and just. 
 
 (not to be signed in nUPLICATE.) 
 
 (Judge-Advocate or Recorder.) 
 
 Paid by check No. 
 
 on , dated 
 
 -, 19—, for 
 
 iThe judge-advocate of a court-martial in any important case will confer 
 with the officer of the Pay Department, whose duty it is to pay the judge- 
 advocate's vouchers in behalf of reporters and witnesses, as to the adoption 
 of measures with a view to prevent fraud in the payments for services 
 rendered by reporters and witnesses. (Cir. No. 74, W. I)., 1!»09.) 
 
ACCOUNT OF REPORTER. 187 
 
 Notes on Form 27— Pay Department. 
 
 1. The method of employment of stenographic re- 
 reporters for courts-martial, military commissions, or 
 courts of inquiry, and their compensation as provided 
 by paragraph 996, Army Regulations, amended by Gen- 
 eral Order 132, War Department, 1908, are as follows: 
 
 (Here follows paragraph 996, Army Regulations, 1908, 
 as given in paragraph 2, pages 26 and 27, ante, except 
 the last paragraph on page 27.) 
 
 2. Stenographic reporters for retiring boards can only 
 be employed on the authority of the Secretary of War 
 obtained in advance of the employment. The authority 
 must be filed with the voucher on which payment is 
 made. (Decision of the Secretary of War, April 24, 
 1879.) 
 
 3. The authority for the employment of a reporter for 
 court-martial, court of inquiry, military commission, or 
 retiring board, and for carbon copies of proceedings, 
 must be filed with the voucher on which payment is 
 made. 
 
 4. The mileage for a reporter is the same as is allowed 
 for civilian witnesses not in Government employ, except 
 that when Government transportation is furnished no 
 mileage is allowed. 
 
 5. Copies of the order appointing court-martial, court 
 of inquiry, military commission, or retiring board must 
 be filed with the voucher. 
 
188 FORM FOR GENERAL ORDERS. 
 FORM FOR GEXERAI^ ORDERS. 
 
 Headquarters Department of , 
 
 General Orders, / 
 No. . \ 
 
 I. Before a general court-martial which, convened at 
 
 Fort , , pursuant to Special Orders, No. , 
 
 Headquarters Department of , , 19 — , were ar- 
 raigned and tried — . 
 
 1. Private A B , Troop , U. S. Cav- 
 alry, alias Private C D , Company , U. 
 
 S. Infantry. 
 
 CHAKGES. 
 
 Charge I: Desertion, in violation of the 47th Article 
 of War. 
 
 Specification 1: In that Private A B , Troop 
 
 , U. S. Cavalry, alias Private C D , Com- 
 pany , U. S. Infantry, a soldier in the service 
 
 of the United States, did desert the same at on or 
 
 about the of , 19 — , and did remain absent in 
 
 desertion until he was apprehended at , on or about 
 
 the of , 19—. 
 
 Specification 2: In that Private A B , Troop 
 
 , U. S. Cavalry, alias Private C D , 
 
 Company , U. S. Infantry, a soldier in the 
 
 service of the United States, did desert the same at 
 
 on or about the of , 19 — , by enlisting under 
 
 the name of C. D , in Company , U. S. 
 
 Infantry, v^ithout a regular discharge from said Troop 
 , — ^ U. S. Cavalry. 
 
 Charge II: Fraudulent enlistment, in violation of the 
 62d Article of War. 
 
 Specification: In that Private A B , Troop , 
 
 U. S. Cavalry, alias Private C D , Com- 
 pany , U. S. Infantry, a soldier in the service 
 
 of the United States, did, without a discharge from 
 said regiment of cavalry, fraudulently enlist in Com- 
 pany , U. S. Infantry, at , on the of 
 
 , 19 — , under tlie name of C D . 
 
FORM FOR GENERAL ORDERS. 189 
 
 To the 1st Specification, Charge I: " Not Guilty." 
 To the 2d Specification, Charge I: " Not Guilty." 
 To Charge I: " Not Guilty. '' 
 To the Specification, Charge II: " Not Guilty." 
 To Charge II: " Not Guilty." 
 
 FINDINGS. 
 
 Of the 1st Specification, Charge I: " Guilty." 
 Of the 2(1 Specification, Charge I: " Guilty." 
 Of Charge I: "Guilty." 
 Of the Specification, Charge II: " Guilty. " 
 Of Charge II: "Guilty." 
 
 SENTENCE. 
 
 To be dishonorably discharged the service of the 
 United States, forfeiting all pay and allowances due 
 him, and to be confined at hard labor in the United 
 States Military Prison, Fort Leavenworth, Kans., for 
 (— ) years. 
 
 ACTION.l 
 
 The sentence in the foregoing case of Private A 
 
 B , Troop , U. S. Cavalry, alias Private 
 
 C D , Company , U. S. Infantry, is ap- 
 proved and will be duly executed. 
 
 ******* 
 
 By command of Brigadier General : 
 
 Adjutant- General. 
 
 1 Where the sentence requires the confirmation of the President, the action 
 of the convening authority and the confirmation of the sentence may be 
 stated briefly, varying with the facts, substantially as follows: 
 
 " The finding of guilty of the specification, charge, was disap- 
 proved by the convening authority. The sentence having been approved 
 by him and the record of trial forwarded for the action of the President, 
 under the 106th Article of War, the following are his orders 
 thereon * * *" 
 or {if there be no disapproval of any finding) : 
 
 "The sentence having been approved by the convening authority and 
 the record of trial forwarded for the action of the President, under the 106th 
 Article of War, the following are his orders thereon * * *." 
 
190 HABEAS CORPUS — RETURN. 
 
 Form A. 
 HABEAS CORPUS BY UNIT:p:D STATES COURT. 
 
 KETUBN TO WRIT. 
 
 In re . {Name of party held.) 
 
 ( Writ of habeas corpus — Return of respondent.) 
 To the . {Court or judge.) 
 
 The respondent, Major , U.S. Infantry, upon 
 
 whom has been served a writ of habeas corpus for the 
 
 production of -, respectfully makes return and 
 
 states that he holds the said by authority of 
 
 the United States as a soldier in the United States Army 
 (o?' " as a military convict under sentence of general 
 court-martial '*) under the following circumstances: 
 
 That the said was duly enlisted as a soldier 
 
 in the service of the United States at , , on 
 
 , 19 — , for a term of years. {If the offense 
 
 is fraudulent enlistment this recital should be omitted.) 
 
 {Here state the offense. If it isfraudident enlistment 
 by representing hi7nself to be of age, it may be stated as 
 follows: ) 
 
 That on the day of , 19 — , at , , the 
 
 said , being then a minor, did fraudulently 
 
 enlist in the military service of the United States for 
 
 the term of years, by falsely representing himself 
 
 to be over twenty-one years of age, to wit, years 
 
 and months; and has, since said enlistment, received 
 
 pay and allowances {or either^) thereunder. 
 
 {If the offense is desertion, it may be stated substan- 
 tially as follows:) 
 
 That the said deserted said service at , 
 
 , on , 19 — , and remained absent in desertion 
 
 until he was apprehended at , , on , 
 
 19 — , by , and was thereupon committed to the 
 
 custody of the respondent as commanding officer of the 
 post of . 
 
 The said has been placed in confinement {or 
 
 "arrest," as the case may be), and formal charges have 
 been preferred against him for said offense, a copy of 
 
HABEAS CORPUS — RETURN. 191 
 
 which, duly certified and verified/ is hereto annexed; 
 and that he will be brought to trial thereon as soon as 
 practicable before a court-martial, to be convened by 
 
 the commanding general of the Department of 
 
 (or "convened by Special Orders, No. , dated 
 
 Headquarters Department of , 19 — , a copy of 
 
 which, duly certified and verified,^ is hereto an- 
 nexed"). 
 
 {If the party held is a military convict, the following 
 paragraph should he substituted for the preceding par- 
 agraph:) 
 
 That the said was duly arraigned for said 
 
 offense before a general court-martial, convened by 
 Special Orders, No. , dated Headquarters Depart- 
 ment of , , 19 — , was convicted thereof by 
 
 said court, and was sentenced to be , which sentence 
 
 was duly approved on the day of , 19—, by the 
 
 officer ordering the court (or " by the officer command- 
 ing said Department of for the time being ") as re- 
 quired by the 104th Article of War. A copy of the order 
 promulgating said sentence, duly certified and verified,^ 
 is hereto attached. 
 
 In obedience, however, to the said writ of habeas cor- 
 pus the respondent herewith produces before the court 
 
 the body of the said , respectfully refers to the 
 
 decisions cited in the annexed brief, and for the reasons 
 
 1 The copy of the charges will be certified by the post adjutant and sworn 
 to before an officer authorized to administer oaths for military administra- 
 tion, in the following form: 
 
 I hereby certify that the foregoing is a full and true copy of the original 
 
 charges preferred against , and that the same are in the usual 
 
 form of military charges, and conform to the rules regulating military pro- 
 cedure. 
 
 I'uxl Adjutant. 
 Sworn to and subscribed before iiic this of , 19 — . 
 
 J II dcje- Advocate of Court-martial. 
 {Or '^ Trial Officer of Summary Court"). 
 The copy of the order convening the court, or publishing the senttmce, 
 will be certified and verified in a similar manner. 
 
192 HABEAS CORPUS — RETURN. 
 
 set forth in this return prays this honorable court to 
 dismiss the said writ. 
 
 Major, U. S. Infantry. 
 
 Dated , , 
 
 , 19—. 
 
 rorm B. 
 HABEAS COKPUS BY STATE COURT. 
 
 RETURN TO WRIT, 
 
 (3Iake return as in case of writ by a United States 
 court, except as to last paragraph, for which substitute 
 as foUoivs:) 
 
 And said respondent further makes return that he has 
 
 not produced the body of the said — , because he 
 
 holds him by authority of the United States as above 
 set forth, and that this court (or '' your honor," as the 
 case may be) is without jurisdiction in the premises, and 
 he respectfully refers to the decisions of the Supreme 
 Court of the United States in Ableman v. Booth, 21 
 Howard, 506, and Tarble's case, 13 Wallace, 397, as au- 
 thority for his action, and prays this court {or "your 
 honor ") to dismiss the writ. 
 
 » 
 Major, U. S. Infantry. 
 
 Dated , , 
 
 , 19-. 
 
 INSTRUCTIONS AS TO RETURNS TO WRITS OP 
 HABEAS CORPUS. 
 
 The following instructions is regard to returns under 
 paragraphs 1008 and 1009, Army Regulations, in the 
 cases of soldiers who have committed military offenses 
 and are held for trial or punishment therefor, and of 
 military convicts, are for the information and guidance 
 of all concerned : 
 
 1. The return under paragraph 1009, Army Regula- 
 tions, will be made in accordance with Form A (see 
 page 190, ante), and will refer, as in last paragraph of 
 
HABEAS CORPUS — BRIEF. 193 
 
 that form, to the brief of authorities which follows 
 these instructions, and a copy of that brief will be an- 
 nexed to the return. Should the court order the dis- 
 charge of the party, the officer making the return, or 
 counsel, should note an appeal pending instructions 
 from the War Department, and he will report to The 
 Adjutant-General of the Army the action taken by the 
 court and forward a copy of the opinion of the court as 
 soon as it can be obtained. 
 
 2. The return under paragraph 1008, Army Regula- 
 tions, w-ill be made in accordance with Form B (see 
 page 192, ante) , but a copy of the brief of authorities is 
 not intended to be attached to the returns to writ of 
 habeas corpus issuing from a State court. 
 
 BRIEF TO BE FILED WITH RETURN TO A WRIT 
 OF HABEAS CORPUS ISSUED BY UNITED 
 STATES COURT IN CASE OF A SOLDIER WHOSE 
 DISCHARGE IS SOUGHT UNDER SECTION 1117, 
 REVISED STATUTES. 
 
 If a minor sixteen years old or over claims to be 
 twenty-one years of age or over and enlists without the 
 consent required by section 1117, Revised Statutes, the 
 contract of enlistment is not voidable by the minor, nor 
 by his parents or guardian, if at the time of the filing 
 of the petition the soldier is held in pursuance of a sen- 
 tence of a court-martial, or any step has been taken 
 with a view to bringing him before such court. 
 
 1. Contract not voidable by minor. 
 
 (a) When soldier is not in confinement. — United States 
 ex rel. Wagner v. Gibbon, 24 Federal Reporter, 135. In 
 this case Wagner, becoming "tired of the service," 
 sought his discharge from the Army "solely on the 
 ground of minority at the time of enlistment." This 
 the court refused to grant, holding that section 1117, 
 Revised Statutes, "was made for the exclusive benefit 
 
194 HABEAS CORPUS — BRIEF. 
 
 of parents and guardians," and that, quoting from the 
 syllabus — 
 
 A minor over sixteen years of age, who at the time of his enlistment 
 makes affidavit that he is twenty-one years of age, will not, on his own ap- 
 plication, be released on hahens corpus on the ground that he was a minor 
 at the time of his enlistment, and that the written consent of his gnardian 
 was not obtained. 
 
 (6) When soldier is in confinement. — In re Morrissey, 
 137 United States, 157 ; In re Grimley, 137 United States, 
 147; In re Wall, 8 Federal Reporter, 85; In re Davison, 
 21 Federal Reporter, 618; In re Zimmerman, 30 Federal 
 Reporter, 176; In re Hearn, 32 Federal Reporter, 141; 
 In re Spencer, 40 Federal Reporter, 149; Li re Lawler, 
 40 Federal Reporter, 233; Solomon v. Davenport, 87 
 Federal Reporter, 318. 
 
 In the Morrissey case the Supreme Court of the United 
 States settles this beyond question. Morrissey, a minor 
 of seventeen years of age, enlisted without the consent 
 of his mother, who was living. He deserted, remained 
 in concealment until he reached his majority, and then 
 presented himself before a recruiting officer and de- 
 manded his discharge from the Army on the ground 
 that he was a minor when enlisted. The court said 
 that the provij^ion of section 1117, Revised Statutes — 
 
 is for the benefit of tbe parent or guardian, * * * but it gives no privi- 
 lege to the minor. * * * An enlistment is not a contract only, but effects 
 a change of status. It is not, therefore, like an ordinary contract, voidable 
 by the infant. * * * The contract of enlistment was good so far as the 
 petitioner is concerned. He was not only dc facto, but dejure, a soldier — 
 amenable to military jurisdiction. 
 
 All the cases cited are instructive as illustrative of the 
 different circumstances under which this principle has 
 been declared. 
 
 In the Lawler case the deserter was arrested and 
 "held as such awaiting trial, which will be as soon as a 
 court-martial can be convened and organized for that 
 purpose." 
 
 In the case of Solomon v. Davenport, the deserter was 
 held by a sheriff under a warrant of a United States 
 commissioner. 
 
HABEAS CORPUS — BRIEF. 195 
 
 In the Spencer case the court said: 
 
 The authorities which have beeu read to me seem to establish very con- 
 clusively this rule — that the enlistment of a minor is voidable, not neces- 
 sarily void; and that he does really become by such enlistment, although 
 under age, engaged in the service of the United States, and subject to the 
 povyer and jurisdiction of the military authorities; and, such being the case, 
 the court-martial had jurisdiction to arrest and try him for the charge of 
 desertion. 
 
 2. Contract not voidable by parents or guardians 
 
 if the soldier is held pursuant to a sentence 
 
 of a court-martial or any step has been taken 
 
 with a view to bringing him before such court. 
 
 In re Kaufman, 41 Federal Reporter, 876; In re Dohren- 
 
 dorf, et aZ., 40 Federal Reporter, 148; In re Cosenow, 37 
 
 Federal Reporter, 668; In re Dowd, 90 Federal Reporter, 
 
 718; In re Miller, 114 Federal Reporter, 838; U. S. us. 
 
 Reaves, 126 Federal Reporter, 127; In re Lessard, 134 
 
 Federal Reporter, 305; Ex parte Anderson, 16 Iowa, 
 
 595; McConologue's case, 107 Massachusetts, 170; In re 
 
 Carver, 142 Federal Reporter, 623. 
 
 In the Kaufman case, the father sought the discharge 
 of his son, who was held by the military authorities and 
 had been ordered before a military court for trial as a 
 deserter. Quoting from the syllabus: 
 
 A minor who enlists in the United States Army upon his representation 
 that he is of age, and receives pay and clothing and afterwards deserts and 
 is arrested as a deserter, and at the time of his petition is held by the United 
 states awaiting trial by a court-martial for the crime of desertion, will not 
 be released under a writ of huhens corpus upon the ground that being a minor 
 his enlistment was unlawful and contrary to the Revised Statutes of the 
 United States. 
 
 In the Cosenow case the minor swore that he was 
 twenty-one years and seven months old at the time of 
 enlistment. He deserted, and at the time of the filing 
 of the petition was held in custody awaiting the action 
 of the reviewing authority on the proceedings of the 
 court-martial. His father sought the discharge of his 
 son on the ground of infancy at the time of enlistment. 
 The court refused to discharge him, holding that "an 
 enlistment contrary to law is not void, but voidable;", 
 that the court-martial had jurisdiction of the offense, 
 
196 HABEAS CORPUS — BRIEF. 
 
 and the soldier ' ' must be remanded to await the result 
 of his trial." 
 
 The Dowd case arose on the application of the mother 
 for the release of her son, who was held under sentence 
 of a summary court. The court held, quoting from the 
 syllabus: 
 
 The enlistment of a minor in the Army without the consent of his parents 
 or guardian, required by Kevised Statutes, section 1117, is not void, but 
 voidable only, and while he remains in the service under such enlistment 
 the minor is amenable to the Articles of War, and can not be remanded to 
 the custody of his parents by a civil court on a writ of habeas corpus while 
 undergoing a sentence imposed on him by a court-martial for a violation of 
 such articles. 
 
 In the Anderson case it appears that a minor enlisted 
 without his father's consent, and being held for trial 
 before a court-martial for desertion, his father sought 
 his discharge on habeas corpus. The court refused to 
 discharge the soldier, saying "he must abide by the 
 decision of the latter court (court-martial) before the 
 question of the validity of his enlistment can be deter- 
 mined in the civil courts on habeas corpus.'" 
 
 In McConologue's case the court said: 
 
 A minor's contract of enlistment is indeed voidable only and not void, 
 and if, before a writ of habeas corpus is sued out to avoid it, he is arrested 
 on charges of desertion, he should not be released by the court while 
 proceedings for his trial by the military authorities are pending. 
 
 By act of July 27, 1892, " fraudulent enlistment, and 
 the receipt of any pay or allowance thereunder, is . . . 
 declared a military offense and made punishable by 
 court-martial under the 62d Article of War." A minor 
 who procures his enlistment by representing himself to 
 be over age commits this offense, and the statute au- 
 thorizes his punishment therefor. In general it may be 
 stated that where a minor has committed a military 
 olf ense the interests of the public in the administration 
 of justice are paramount to the right of the parent and 
 require that the soldier shall abide the consequences of 
 his offense before the right to his discharge be passed 
 upon. (Digest Opin. J. A. G., sees. 1258 and 1264, and 
 notes.) 
 
HABEAS CORPUS— BRIEF. 197 
 
 The soldier should not be allowed to escape punish- 
 ment for his offense, even 1 hough his par n:s assert 
 their right to his services. A minor in civil life is liable 
 to punishment for a crime or misdemeanor, even though 
 his confinement may interfere with the rights of his 
 parents. In re Miller (114 Fed. Rep., 838), it was held 
 that a minor 16 years old or over '"enlisting without 
 the consent of his parents, on representation that he is 
 of age, becomes a soldier amenable to military jurisdic- 
 tion for military offenses, and subject to release from 
 service only on application from his parents, who can 
 not prevent his court-mai'tial for past military offenses."" 
 In the opinion of the court (page 842) it is said: 
 
 The common law, unaided by statute, fully rocognized the parents' rights 
 to the custody and services of their minor child; but it has never been held 
 that they could, by the writ of habeas corpus or otherwise, obtain his 
 custody and his immunity when he was held by an officer of a civil court of 
 competent jurisdiction to answer a charge of crime. His enlistment having 
 ma^le the prisoner a soldier notwithstanding his minority, he is answerable 
 to the military law just us the citizen who is a minor is answerahle to the civil 
 laiv. TJte parents can not prevent the law's enforcement in either case. * * * 
 
 These views were cited with approval in U. S. v. 
 Reaves (126 Fed. Rep., 127), where, upon full consid- 
 eration of the authorities, the circuit court of appeals 
 remanded Reaves, a minor who had deserted from the 
 Navy, to the custody of the naval authorities as repre- 
 sented by the chief of police who had apprehended him. 
 
 See also in re Carver (142 Fed. Rep., 623), where the 
 case of U. S. v. Reaves, supra, was followed, the 
 decision of the court, as stated in the syllabus, being as 
 follows: 
 
 "A minor under the age of 18 years, who unlawfully 
 enlisted in the Army without the consent of his father, 
 can not be discharged from the service on a writ of 
 habeas corpus sued out by his father so long as he is 
 under arrest for desertion, nor until he has been dis- 
 charged from such custody or has served the sentence 
 imposed on him by the military tribunal." 
 
INDEX 
 
 Abatement of punishment : Page. 
 
 for good conduct in confinement 72 
 
 Abatement : 
 
 plea in o3 
 
 Absence : 
 
 of member from meeting of court 22. 144 
 
 »S'ee Department commander. 
 
 Absence without leave : 
 
 effect of conviction of, on reward for aitprehensiou r»0 
 
 effect on cost of transportation 50 
 
 finding of, under charge of desertion 46 
 
 from camp, 1 mile 109 
 
 from duty as company or hospital cook 50 
 
 from fatigue, extra, or special duty 51 
 
 from parade, etc., forms for charges 136 
 
 from parade, etc., limit of punishment 54 
 
 from parade, etc., offense of 109 
 
 from troop, etc., form for charge 136 
 
 from troop, etc., limit of punishment 53 
 
 from troop, etc., offense of 109 
 
 Abuse of authority: 
 
 by noncommissioned officer, limit of punishm(>nt 56 
 
 Accounts : 
 
 of reporter, form for 186 
 
 of witness, forms for 177, 182 
 
 of witness, rules governing 179-185 
 
 of witness, to deposition 41, 178 
 
 Accouterments : 
 
 accountability for 104 
 
 selling, losing, etc., form for charge 134 
 
 selling, losing, etc., limits of punishment 53 
 
 selling, losing, etc., offense of 105 
 
 Accused : 
 
 arraignment of 32, 119 
 
 challenge by, how allowable 28 
 
 challenge by, how recorded 149, 150 
 
 consent of, to trial by summary court 19, 82 
 
 entitled to counsel before general court 25 
 
 entitled to have witnesses summoned 34 
 
 entitled to testify 45 
 
 (199) 
 
200 INDEX. 
 
 Accused — Continued. Page. 
 
 judge-advocate, how far counsel 23 
 
 may submit statement, etc 46 
 
 stands mute 3.3 
 
 to be advised of liis rights 23 
 
 uniform of, before court 21 
 
 will not appear in irons 21 
 
 Accuser : 
 
 can not convene general court 13 
 
 can act as summary court 78 
 
 challenge of member on ground of being 29 
 
 should not act as judge-advocate 29 
 
 Acquittal : 
 
 effect of, on reward for apprehension 50 
 
 finding in case of virtual 47 
 
 form for recording 156 
 
 Action on proceedings. See Proceedings. 
 
 Additional charges: 
 
 can not be introduced after arraignment, etc 20 
 
 Adjournment : 
 
 daily, signed by judge-advocate 24 
 
 final, signed by president and judge-advocate 24 
 
 form for recording 153 
 
 Advising desertion: 
 
 offense of 111 
 
 Alarms : 
 
 false, offense of occasioning 110 
 
 Ammunition: 
 
 offense of purchasing, from soldier, etc 115 
 
 offense of wasting, selling, etc 105 
 
 Appeal : 
 
 from regimental to general court lOS 
 
 Appointing authority. See Convenimi author it if. 
 
 Arms : 
 
 accountability for 104 
 
 offense of casting away 110 
 
 offense of making false return of 103 
 
 offense of selling, losing, etc 105 
 
 offense of selling, losing, etc., limits of punishment 53 
 
 Arraignment : 
 
 accused and judge-advocate stand •"»2 
 
 accused not to be in irons at 21 
 
 accused stands mute at, action by court 33 
 
 additional charges not introduc(»d after 20 
 
 form for i*ecording 150 
 
 procedure for 24, 32 
 
INDEX. 201 
 
 Arrest : Page. 
 
 applications of officers in 7 
 
 breach of, by officers 116 
 
 general provisions regarding 9 
 
 of deserters, reward for 50 
 
 of officers 6, 116 
 
 of soldiers 8 
 
 omission of, as affecting jurisdiction 6, 8 
 
 protracted, a ground for mitigation 69 
 
 Arson : 
 
 offense of, in time of war 113 
 
 Articles of war: 
 
 armies of United States governed by 102 
 
 officers sliall subscribe 102 
 
 read once in six months to troops 127 
 
 read to recruits 102 
 
 Assault with intent to kill: 
 
 form for charge 143 
 
 limit of punishment 55 
 
 Assembling of court : 
 
 procedure on 21 
 
 Attachment of witness. See Witness and Warrant of 
 attachment. 
 
 Attendance of witness: See Witness. 
 
 Authentication of proceeding. See Proceedings. 
 
 Authority : 
 
 abuse of, by noncommissioned officers 56 
 
 Autrefois acquit: 
 
 plea of 33 
 
 Ball and chain: 
 
 as punishment 49 
 
 punishment by, in extreme cases only 50 
 
 report of use to department commander 70 
 
 Blanks : 
 
 accounts for civilian witnesses, where obtained — 177 
 summons, subpoenas, etc 175 
 
 Branding of soldiers: 
 
 forbidden 122 
 
 Breach of arrest: 
 
 by officers 116 
 
 Bread and water diet: 
 
 confinement on, as punishment 49 
 
 Bribes : 
 
 officer taking 103 
 
202 INDEX. 
 
 Burglary : Page. 
 
 offense of, in time of war 113 
 
 under 62d Article, form for charge 143 
 
 under 62d Article, limit of punishment 55 
 
 Cadets. See Military Academy. 
 
 Camp: 
 
 introducing liquor into, limit of punishment : 56 
 
 lying out of, without leave ________i._\__ 108, 109 
 
 retainers of, jurisdiction over 15 
 
 soldiers 1 mile from, without leave i-_ 109 
 
 violence to persons bringing provisions to 112, 113 
 
 Candidate for promotiou: 
 
 punishment of . 49 
 
 triable by general court only 15 
 
 Capital crime: 
 
 desertion in time of peace not a 42 
 
 meaning of : 42 
 
 Captured stores: 
 
 disposition of 104 
 
 Cashiering : 
 
 meaning of 104 
 
 Certificates : 
 
 penalty for signing false 105 
 
 Challenge (of memher of court) : 
 
 court determines validity of 28 
 
 grounds for 28, 29 
 
 in absence of, member how excused 29 
 
 judge-advocate not challengeable 29 
 
 record in case of 149, 150 
 
 summary court not subject to 28 
 
 Challenge (to fight duel) : 
 
 duty to refuse 107 
 
 sending, accepting, etc 107 
 
 upbraiding for refusing 107 
 
 Chaplains : 
 
 not detailed as members of courts 11 
 
 Character : 
 
 evidence of 33 
 
 Charges : 
 
 accompanied by what 19, 20, 80 
 
 act charged under two or more forms 19 
 
 additional 20 
 
 consideration of, by post commander 19 
 
 correction of, by judge-advocate 23 
 
INDEX. 203 
 
 Charges — Continued. Page. 
 
 delay in trial bj- sumninry court on 70 
 
 forms for i:>4 
 
 instructions for drawins^ lG-2(t 
 
 investigation of 19 
 
 joint, when 17 
 
 prisoners witliout written, when released 9, 10 
 
 requisites of 10 
 
 service of, upon officer arrested 7, 8 
 
 specifications, how drawn 17, 18 
 
 specifications, not in alternative __- 18, 19 
 
 striking out, withdrawing, etc 20 
 
 to show consent to trial hy summary court 19, 82 
 
 to whom submitted 19 
 
 when and )iy whom sul>mitted 9 
 
 Civil court : 
 
 can not review proceedings of military 1:5 
 
 military, ordinarily, gives precedence to 14 
 
 previous convictions l)y, inadmissil)le 48 
 
 Civil crime: 
 
 act as being both military offense and 14 
 
 Civil magistrate: 
 
 delivery of accused officer or soldier to llfi 
 
 Clemency : 
 
 certain applications for 67 
 
 recommendation to 65 
 
 Clothing: 
 
 form for charge for selling 134 
 
 limit of punishment for selling 53 
 
 limit of punishment for losing or spoiling 53 
 
 offense of selling, losing, etc _-l 19, 105 
 
 Closed session: 
 
 judge-advocate excluded 25 
 
 Company commander: 
 
 arrest or confinement of soldiers reported to 9 
 
 copy of summary court record furnished to 83 
 
 Commanding officer: 
 
 disrespect to, limit of punishment 53 
 
 disrespect to, offense of 106 
 
 instructions to, regarding summary courts 82 
 
 may authorize departure of certain witnesses 42 
 
 must investigate charges 19 
 
 power to order court of inquiry 125 
 
 refers or forwards charges 19 
 
 report of prisoners to 9 
 
204 INDEX. 
 
 Command : Page. 
 
 suspension from, as punishment 49 
 
 wlien different corps join 126 
 
 Commands : 
 
 officers to keep good order in 112 
 
 Commutation of punishment: 
 
 power of reviewing autliority 67 
 
 Company cook: 
 
 limit of punisliment for absence from duty as .56 
 
 limit of punishment for drunkenness on duty as 54 
 
 Composition of courts-martial. See Couits-martial. 
 
 Conduct to the prejudice, etc.: 
 
 forms for charges 140-144 
 
 instruction regarding charges 17 
 
 limits of punishment 55-57 
 
 Conduct unl)ecoming, etc.: 
 
 forms for charges 140 
 
 instructions regarding charges of 17 
 
 Confinement before trial: 
 
 enlisted men in, how designated 8 
 
 general provisions regarding 9 
 
 long, a ground for mitigation 70 
 
 of officers 7 
 
 of soldiers 8 
 
 report of, to soldier's company commander 9 
 
 Confinement after trial: 
 
 abatement allowed 7o 
 
 enlisted men in, how designated 71 
 
 forms for sentence to 170 
 
 on bread and water diet 49, 60 
 
 personal effects of escaped prisoners 71 
 
 prisoners forwarded to place of 71 
 
 prisoners put in irons, report made 70 
 
 second sentence to, begins when 73 
 
 sentence to, begins when 72 
 
 sentence, expiration of, to be verified : 73 
 
 separation of prisoners in 70 
 
 solitary, duration of 60 
 
 without hard labor not to be imposed 49 
 
 Constitution of courts-martial. See Conrls-martioL 
 
 Contempt : 
 
 courts-martial may punish for 120 
 
 Continuance. See Postponement. 
 
 Contract surgeon, etc.: 
 
 authority to sign charges 20 
 
 disobedience of orders of 106, 135 
 
 ineligible as member of court 11 
 
INDEX. ' 205 
 
 Convening authority: Page. 
 
 control of, over court lo 
 
 decision of, as to numl)er of members 12 
 
 effect of absence on appointing power 13 
 
 of garrison court 83 
 
 of general court 12, 13 
 
 of regimental court 8") 
 
 of summary court 78 
 
 prosecutor can not convene general courts 13 
 
 report to, when court is below minimum 12 
 
 the President as 12 
 
 the Superintendent, T^. S. Military Academy, as __ 13 
 
 Conyening order: 
 
 for garrison court 162 
 
 for general court 147 
 
 for regimental court ^ 165 
 
 Convictions. See Previous convictions. 
 
 Correction of proceedings. See Revifiion of record. 
 
 Correspondence : 
 
 with the Judge-Advocate General 76 
 
 with the enemy 110 
 
 Counsel for accused : 
 
 arguments of, oral or written 26 
 
 before inferior courts 26 
 
 by whom detailed 25 
 
 duties of 26 
 
 introduction of, before court 149 
 
 judge-advocate, how far 23 
 
 questions of, oral or written 26 
 
 Courts-martial : 
 
 all troops subject to trial by 14 
 
 assembling of 21 
 
 authority over charges 20 
 
 can not excuse member 29 
 
 can not order nolle prosequi 20 
 
 civil courts can not review proceedings of 13 
 
 classification of 11, 12 
 
 composition of 11 
 
 control of convening authority over 13 
 
 hours of session repealed 121 
 
 inferior 11, 12 
 
 jurisdiction of, as affected by act of accused 15 
 
 jurisdiction of, derived from acts of Congress 13 
 
 jurisdiction of, exclusive over military offenses 14 
 
 jurisdiction of, how extended in time of war 15 
 
 jurisdiction of, not affected by territoriality 14 
 
206 INDEX. 
 
 Courts-martial — Continued. Pa^'o. 
 
 jurisdiction of, over acts botli civil crimes and 
 
 military offenses 14 
 
 jurisdiction of, over offenses 14 
 
 jurisdiction of, over persons 14 
 
 jurisdiction of, statute of limitation as affecting 34 
 
 jurisdiction of, when ended 14 
 
 may punish for contempt 120 
 
 object of, as military tribunal 6 
 
 organization of 20 
 
 Garrison courts-martial — 
 
 appointed in what commands 83 
 
 appointed when 84 
 
 composition, etc., of 8o 
 
 counsel before 26 
 
 disposition of proceedings of 76 
 
 form for order and record 162 
 
 jurisdiction of 8."> 
 
 limit of punishing power 84, 119 
 
 testimony, etc., will not be recorded ' 84, 164 
 
 General courts-martial — 
 
 appeal from regimental court to 108 
 
 closed session of 25 
 
 composition of 11 
 
 constituted by whom 12. 13 
 
 counsel. See Counsel for accused. 
 
 disposition of proceedings of TH 
 
 form for order and record 147 
 
 jurisdiction of 15 
 
 procedure of 21 
 
 record of, copy furnished accused 76, 125 
 
 record of proceedings 63 
 
 revision of record 65 
 
 Regimental courts-martial — 
 
 composition, etc., of 85 
 
 counsel before 26 
 
 disposition of proceedings of 76 
 
 form for order and record 165 
 
 jurisdiction of 85 
 
 limit of punishing power 84. 11J> 
 
 testimony will not bo recorded 84 
 
 under 30th Article of War 108 
 
 Summary courts — 
 
 accuser can act as 78 
 
 act establishing 120 
 
 appointment of 78 
 
INDEX. • 207 
 
 Courts-martial — Continued. Pago. 
 Nummary courts — Continued. 
 
 composition, etc, of 78 
 
 consent to trial by 82 
 
 copies of record, furnislied company commanders 83 
 
 counsel before 26 
 
 delay in trial by 79 
 
 discretion as to trial by 7!i 
 
 general instructions regarding 82 
 
 hours of session 82 
 
 jurisdiction of 79 
 
 limit of punishing power 79, 82, 119 
 
 may be held on Sunday in emergency 82, 8:> 
 
 monthly report of cases tried, form for 161 
 
 names of officers who act as, reported 83 
 
 not challengeable 28 
 
 power of 79 
 
 previous convictions considered by 80 
 
 procedure of 80 
 
 record, form for 159 
 
 report of cases tried by, to be made monthly 19, 76 
 
 reviewing authority of 81 
 
 Courts of inquiry: 
 
 authentication of proceedings of 88, 126 
 
 composition of 87, 125 
 
 constituted by whom 86, 125 
 
 form of convening order 87 
 
 how ordered 125 
 
 jurisdiction of 86 
 
 oath of members and recorder 87, 125 
 
 object of, as a military tribunal 6 
 
 opinion of, when given 87, 120 
 
 organization of 87 
 
 procedure of 87 
 
 proceedings, carbon copy, disposition of 27 
 
 record of, as evidence 126 
 
 record of proceedings 88 
 
 reporter for, employment of 87 
 
 witnesses before 87, 125 
 
 Cowardice : 
 
 offense of 110 
 
 sentence for, how published 1.22 
 
 Crime : 
 
 act as being both military offense and civil 14 
 
 capital, desertion in time of peace not a 41 
 
 capital, offender delivered to civil magistrate 113 
 
 during rebellion, etc 113 
 
208 INDEX. 
 
 Crime — C'ontinuod. Page. 
 
 officers accused of, subject to arrest 110 
 
 of fraud against the United States 114, 115 
 
 soldiers accused of 116 
 
 to the prejudice, etc li;>, IIG 
 
 Criminals : 
 
 enlistment of, prohibited 102, lO."] 
 
 Customs of war or service: 
 
 as affecting punishment 00 
 
 as part of unwritten military law 
 
 Days : 
 
 meaning of word in sentence 72 
 
 Death, sentence of: 
 
 confirmation of 12.*> 
 
 suspension of 07, 124 
 
 vote upon 01 
 
 Deceased soldiers: 
 
 disposition of effects of 127 
 
 Defects in proceedings. See Revision of record. 
 
 Defense : 
 
 how far assisted by judge-advocate 2r> 
 
 Delay : 
 
 in trial by summary court 70 
 
 when and by whom granted 'M 
 
 Dental surgeon. See Contract surgeon, etc. 
 
 Department commander: 
 
 as accuser or prosecutor ir; 
 
 authorized to convene courts l.'i 
 
 authorized to review proceedings 0,1, 00 
 
 can not delegate his function as reviewing au- 
 thority 06 
 
 charges forwarded to 19 
 
 effect of absence of, on appointing power 13 
 
 may permit trial of n. c. o. by inferior courts 16 
 
 report of irons on prisoner to 70 
 
 Deposition : 
 
 duty of officer ordered to obtain 40 
 
 fees of civil officer taking 41, 45 
 
 fees of witness giving deposition 41 
 
 ■ form for _ 177 
 
 may be taken before court assembles 40 
 
 oath to, by whom administered 40 
 
 pay accounts of witness giving 41 
 
 procedure to obtain 40 
 
 submission to court 40 
 
INDEX. 209 
 
 Deposition — Continued. Pago, 
 
 taken by consent where witness resides in State _ 39, 175 
 
 when admissible 39, 121, 175 
 
 when not admissible 39, 41 
 
 Deprivation of privileges: 
 
 of " candidate for promotion " 49 
 
 Deserter : 
 
 enlistment of, prohibited 102 
 
 from Navy or Marine Corps 102 
 
 harboring, offense of 111 
 
 surgeon's report to accompany charges against 20, 145 
 
 to serve full term 111 
 
 limits of punishment of 52 
 
 Desertion : 
 
 after tendering resignation 111 
 
 by enlistment in another regiment 111 
 
 evidence of, after plea of guilty 32, 33 
 
 form for charge of 138 
 
 in time of peace, not a capital offense 41, 110 
 
 judge-advocate's duty 24 
 
 limits of punishment 52 
 
 offense of 110, 111 
 
 offense of advising or persuading 111 
 
 previous convictions of 52, 59 
 
 statute of limitation for 34, 123 
 
 Discharge, dislionoral)lo : 
 
 form for sentence of 171 
 
 of an officer for cowardice or fraud 122 
 
 of post noncommissioned staff and hospital steward 49 
 
 on account of conviction of two or more offenses — 59 
 
 on account of previous convictions 59 
 
 postponement of date fixed by sentence 69 
 
 Discharge from service: 
 
 how made 103 
 
 Dismissal : 
 
 by court-martial, appointed by division or brigade 
 
 commander 124 
 
 for cowardice, etc., where published 122 
 
 in time of peace, sentence confirmed 123 
 
 of general officers 124 
 
 suspension of sentence of 67, 124 
 
 Disobedience of orders: 
 
 involving defiance of noncommissioned officer 56 
 
 of a contract surgeon, etc 135 
 
 of a noncommissioned officer, form for charge 141 
 
 50963 14 
 
210 INDEX. 
 
 Disobedience of orders — Continued. Page, 
 
 of a noncommissioned officer, offense under 62d 
 
 Article 13r> 
 
 of a sentinel, limit of punishment 57 
 
 of an officer, etc., quelling fray, limit of punishment 5:> 
 
 of an officer, etc., quelling fray, offense of 106 
 
 of an officer, form for charge l.'Jf) 
 
 of an officer, offense of 10(5 
 
 simple neglect of standing order i;ir» 
 
 Disorderly coiuliict in quarters: 
 
 limit of punishment 50 
 
 Disorders and neglects: 
 
 offenses under 62d Article 115 
 
 Disposition of records: 
 
 of general courts 75 
 
 of inferior courts ^ 70 
 
 Disrespect : 
 
 regarding President, etc., offense of 100 
 
 to commanding officer, limit of punishment 5.'5 
 
 to commanding officer, offense of 100 
 
 to sentinel, limit of punishment 57 
 
 Divine service : 
 
 irreverent behavior at ^ 111 
 
 officers, etc., recommended to attend 111 
 
 Double amenability: 
 
 in case of disorder near post 50 
 
 to civil and military jurisdictions 14 
 
 Drunkenness : 
 
 at guard mounting 17 
 
 at post or in quarters, limit of punishment 56 
 
 on duty, form for charge l;'»7 
 
 on duty, limits of punishment 54 
 
 on duty, offense under o8th Article 17, 10".) 
 
 Drunkenness and disorderly conduct : 
 
 form for Charge 141 
 
 limits of punishment 50 
 
 near post, causing conviction by civil authorities __ 56 
 
 Duel: 
 
 challenge to light 107 
 
 sending, accepting challenge, etc 107 
 
 upbraiding for refusing challenge 107 
 
 Duty : 
 
 conniving at hiring 10?) 
 
 hiring 10*» 
 
INDEX. 211 
 
 Effects : Page. 
 
 of deceased officers and soldiers 120, 127 
 
 of escaped prisoners 71 
 
 Embezzlement : 
 
 of Ignited States property 55, 115 
 
 offense under 62d Article, limit of punishment 55 
 
 specifications for, to state value of property 55 
 
 Enemy : 
 
 correspondence with 110 
 
 misbehavior before 110 
 
 relieving, harboring, etc 110 
 
 trading with 127 
 
 Enlistment : 
 
 fraudulent, definition of 14 
 
 fraudulent, forms for charges 142 
 
 fraudulent, limits of punishment 56 
 
 fraudulent, offense under 62d Article 116 
 
 oath of 102 
 
 of certain classes prohibited 102 
 
 unlawful, penalty for making 102 
 
 Escape of prisoner: 
 
 disposal of effects of prisoner 71 
 
 effect on jurisdiction of court 15 
 
 form for charge for suffering 141 
 
 limit for suffering 56 
 
 Evidence : 
 
 common-law rules of, ordinarily followed 45 
 
 proceedings of court of inquiry as 126 
 
 Examination of witness. See Witness. 
 
 Experts : 
 
 employment and pay of 43 
 
 Exposure of person: 
 
 limit of punishment 57 
 
 False alarms : 
 
 penalty for creating 110 
 
 False certificate: 
 
 penalty for signing 105 
 
 False muster: 
 
 penalty for making 103, 105 
 
 penalty for signing, etc., roll containing 105 
 
 False report: 
 
 by noncommissioned officer, limit of punishment — 56 
 
 False return: 
 
 penalty for making 103 
 
212 INDEX. 
 
 False swearing: Page. 
 
 distinguished from perjury 144 
 
 limit of punishment 55 
 
 Fees of witness. See Witness. 
 
 Finding: 
 
 in case of virtual acquittal 47 
 
 of guilty of lesser kindred offense 46 
 
 of guilty of part of specification 46 
 
 of guilty under general instead of specific article 47 
 
 reviewing authority can not change 47 
 
 Fine: 
 
 as a punishment 49 
 
 See Forfeiture of pay. 
 
 Flogging: 
 
 prohibited 49, 122 
 
 Forcing a safeguard: 
 
 offense of 11,3 
 
 Forfeiture of pay: 
 
 as a punishment 49 
 
 can be made only in favor of United States 50 
 
 for irreverent behavior 111, 112 
 
 for profanity 112 
 
 forms for sentences to 171 
 
 of amount paid for apprehension 50 
 
 remission of sentence 69 
 
 Forgery : 
 
 under 60th Article, limit of punishment 55 
 
 under 62d Article, limit of punishment 55 
 
 Former trial: 
 
 plea of 33 
 
 Forms : 
 
 for accounts of civilian witnesses 177-185 
 
 for accounts of reporters 186 
 
 for charges 134 
 
 for interrogatories and deposition 175, 176 
 
 for monthly report of summary court cases 161 
 
 for record of summary court 159 
 
 for record of garrison court 162 
 
 for record of general court 146 
 
 for record of regimental court 165 
 
 for return to habeas corpus of State court 192 
 
 for return to habeas corpus of United States court 190 
 
 for revision of record, general court 158 
 
 for sentences 170 
 
 for general order publisliing procei>tlings 188 
 
INDEX. 213 
 
 Forms — Continued. Page. 
 
 for statement of service 145 
 
 for subpoena duces tecum 172 
 
 for subpoena for civilian witness 172 
 
 for subpoena for deposition 173 
 
 for summons for military witness 171 
 
 for surgeon's report on alleged deserter 145 
 
 for warrant of attachment 174 
 
 Fort Leavenworth, Kans. : 
 
 United States military prison and branches 67 
 
 penitentiary at, designation of 68 
 
 Fraud : 
 
 administration of oaths in investigation of 31, 132 
 
 offenses of, under 60th Article 114 
 
 oflacer dismissed for 122 
 
 Fraudulent enlistment. See Enlistment. 
 
 Frays : 
 
 power to quell 106 
 
 refusing to obey officer, etc., quelling, limit of pun- 
 ishment 53 
 
 Gambling : 
 
 encouragement of, by noncommissioned officer, limit 
 
 of punishment 56 
 
 Garrison court-martial. See Courts-martial. 
 
 Garrison prisoners: 
 
 who designated as 70 
 
 General and special orders: 
 
 as part of written military law 6 
 
 publishing proceedings '_ . 60 
 
 General court-martial. See Courts-marl Uil. 
 
 General officers: 
 
 power of, to convene courts 13 
 
 sentences regarding 124 
 
 Good conduct in confinement: 
 
 abatement for 72 
 
 Good order: 
 
 officers to keep, in their commands 112 
 
 Grievances : 
 
 of officers 108 
 
 of soldiers 108 
 
 redress for 108 
 
 Guard : 
 
 drunkenness on, form for charge 137 
 
 drunkenness on, limit of punishment . 54 
 
 drunkenness on, offense of 109 
 
214 INDEX. 
 
 (Juard — Continued. Pa^e. 
 
 for nrisoners conveyed to place of confinement 71 
 
 member of, drinking witli prisoner, limit of punish- 
 ment ilT 
 
 prisoners delivered to, charges against J) 
 
 prisoners under charge of, when released 
 
 quitting, form for charge IMT 
 
 quitting, limit of punishment ;")."» 
 
 quitting, offense of 110 
 
 (juard duty: 
 
 as a punishment, forbidden 50 
 
 Guard mounting: 
 
 drunk at, limit of punishment ,54 
 
 Habeas corpus: 
 
 forms for return to writ of 190-11);! 
 
 instructions as to returns :!G, To, 192 
 
 minority as a ground for, brief 19:'. 
 
 officers served with, action required oG, 7o 
 
 writ issued by State court ;;T, 74, 192 
 
 writ issued by United States court ^6, 75, 190 
 
 writ issued in IMiilippines, etc 74 
 
 Harboring : 
 
 deserter 111 
 
 enemy 110 
 
 Hard labor: 
 
 as a punishment 49 
 
 forms for sentences to 171 
 
 power of inferior court to award 119 
 
 Hiring duty. See Duty. 
 
 Horse : 
 
 limit of punishment for losing or spoiling 5.'i 
 
 limit of punishment for selling 5.'> 
 
 ofEense of selling, etc 105 
 
 Hospital cook: 
 
 limit of punishment for absence from duty as 50 
 
 Hospital sergeants, 1st class: 
 
 arrest of 8 
 
 confinement of 8 
 
 jurisdiction over 15 
 
 may be discharged, but not reduced 4!t 
 
 punishment of 49 
 
 Hours of session: 
 
 article prescril)ing, repealed 121 
 
 not to interfere with routine duties 21 
 
 of summary court S2 
 
 record of 147 
 
INDEX. 215 
 
 Indeceut exposure: Page. 
 
 limit of punishment 57 
 
 Inferior courts-martial : 
 
 courts so designated 12 
 
 disposition of records of 76, 77 
 
 instructions regarding 12 
 
 punishing power 119 
 
 Inquiry, Courts of. See Courts of inquinj. 
 
 Insane or intoxicated person: 
 
 enlistment of 102 
 
 Insubordination : 
 
 toward noncommissioned officer, limit of punish- 
 ment 56 
 
 Interpreter : 
 
 employed by order of court 28 
 
 oath of 24, 31 
 
 pay of 28 
 
 record relating to 150 
 
 Interrogatories and deposition. See Deposition. 
 
 Introducing liquor into camp, etc.: 
 
 limit of punishment 56 
 
 Irons on prisoner: 
 
 as a punishment 49, 50 
 
 removed on arraignment 21 
 
 reported to department commander 70 
 
 Irreverent behavior: 
 
 at divine service 111 
 
 Joint charges: 
 
 when allowed 17 
 
 Judge-Adrocate-General : 
 
 applications to, for copies of records 76 
 
 correspondence with 76 
 
 proceedings in certain cases forwarded direct to 76 
 
 revises and preserves records of general courts 75 
 
 Judge-advocate of court-martial: 
 
 appointed by whom 20, 118 
 
 assistance in preparing record 26 
 
 authorized to administer certain oaths 24, 29, 121 
 
 challenge of member of court-martial by 28 
 
 correction of chai'ges by 23 
 
 death or disability of 24, 63 
 
 duties of 23 
 
 new judge-advocate, i-ecord regarding 63 
 
 not challengeable 29 
 
 oath of 30 
 
16 INDEX. 
 
 Judge-advocate of court-martial — Continued. Page. 
 
 subpoenas by, how sent 35 
 
 subscribes daily record, etc 24 
 
 warrant of attachment Issued by 36 
 
 withdraws when court is closed 25 
 
 witnesses summoned by 34 
 
 Judge-adrocate of department: 
 
 authorized to administer certain oatl.s 31. 121 
 
 custodian of records of inferior courts 77 
 
 Jurisdiction of courts-martial. See Courts-martial. 
 
 Larceny : 
 
 by soldier from civilian 18 
 
 forms for charges of 139, 143 
 
 offense of, in time of war 113 
 
 offense under 62d Article, limits of punishment 55 
 
 specifications for, to state value of property 55 
 
 Law of liostile occupation: 
 
 definition of 5 
 
 Laws of the land : 
 
 municipal ordinances, part of 113 
 
 Leaving post: 
 
 form for charge 137 
 
 offense of 109 
 
 Lewd exposure: 
 
 limit of punishment 57 
 
 Limitation, Statute of: 
 
 advantage of, how taken 34 
 
 effect of, on jurisdiction 34 
 
 Limits of punishment. See Maximum limits of punishment. 
 Liquor : 
 
 introducing into camp, etc., limit of punishment — 5G 
 
 Log: 
 
 punishment by carrying heavy, prohibited 50 
 
 Losing or spoiling: 
 
 accouterments or clotliing, througli neglect, limit 
 
 of punishment 53 
 
 accouterments or clothing, through neglect, offense 
 
 of 105 
 
 horse or arms, through neglect, limit of punish- 
 ment 53 
 
 horse or arms, through neglect, offense of 105 
 
 Loss of rank : 
 
 as a punishment 49 
 
 Lying out of quarters: 
 
 offense of 10H 
 
INDEX. 217 
 
 Manslaughter: Page. 
 
 ofiEense of, in time of war llo 
 
 under 62d Article, limit of punishment 55 
 
 March : 
 
 different corps, etc., on the 126 
 
 Marine Corps: 
 
 deserter from 34 
 
 officers of, as members of courts 11 
 
 Marking : 
 
 as a punishment, forbidden 49, 122 
 
 Martial law: 
 
 as a domestic fact, definition of 5 
 
 as applied to the Army, definition of 5 
 
 Maximum limit of punishment : 
 
 by whom prescribed 51 
 
 effect of previous convictions on 58, 59 
 
 for desertion 52 
 
 for offenses in general 53 
 
 of noncommissioned officer 59 
 
 of soldier convicted of several offenses 59 
 
 offenses not mentioned 60 
 
 Mayhem : 
 
 offense of, in time of war : 113 
 
 Medical officer: 
 
 arrest of 7 
 
 report of, in case of deserter 20 
 
 report of, form for 145 
 
 Members of courts-martial: 
 
 absent, communicate cause to judge-advocate 22 
 
 absent during evidence, not to sit 29 
 
 assembling of 21 
 
 behavior of 22 
 
 court can not excuse from sitting 29 
 
 duty of judge-advocate to ascertain cause of ab- 
 sence of duty 148 
 
 liable for other duty 22 
 
 named in order of rank 22 
 
 new member 63 
 
 oath of 24, 30 
 
 questions by, how recorded 152 
 
 quorum for general court 12 
 
 seating of 22 
 
 uniform of 21 
 
 votes of, how given 22 
 
 who are eligible as 11 
 
 who believe themselves disqualified 29 
 
218 INDEX. 
 
 Member of ^uard: I'age. 
 
 drinking liquor with prisoner, limit of punishment 57 
 
 Military Academy: 
 
 cadets not triable by inferior courts 15 
 
 superintendent may convene courts for cadets 13 
 
 Military commission: 
 
 object of as military tribunal 6 
 
 reporter for 26, 187 
 
 Military convicts: 
 
 disobedience of orders by 106, 135 
 
 sentence, examination of 73 
 
 jurisdiction over 3 5, 61, 79, 84, 130 
 
 punishment for escape 57 
 
 who designated as 70 
 
 Military discipline: 
 
 conduct to prejudice of, forms for charges 141 
 
 conduct to prejudice of, how charged 17 
 
 conduct to prejudice of, limits of punishment 55-57 
 
 crimes, disorders, and neglects to the prejudice of 115 
 
 Military government : 
 
 definition of 5 
 
 Military jurisdiction : 
 
 how subdivided 5 
 
 source of 6 
 
 Military law: 
 
 definition of 5 
 
 sources of 5, 6 
 
 Military tribunals: 
 
 classification of 6 
 
 Militia : 
 
 not triable by officers of Regular Army 11 
 
 officers as members of courts 11 
 
 officers in United States service, rank of 126 
 
 Minimum: 
 
 report if court is below 12 
 
 Minors : 
 
 offense of enlisting, without consent of parents __ 102 
 See Habeas corpus. 
 
 Misbehavior before enemy: 
 
 offense of llo 
 
 Misconduct in time of war: 
 
 abandoning post, etc 110 
 
 casting away arms, etc 110 
 
 chnnging parole or watchword 110 
 
INDEX. 219 
 
 Misconduct in time of Tvar — Continued. Page. 
 
 correspondence with enemy 110 
 
 cowardice 110. 122 
 
 disclosing parole or watchword, etc 110 
 
 false alarms 110 
 
 forcing safeguard 113 
 
 intelligence to enemj- 110 
 
 misbehavior before enemy 110 
 
 pillage 110 
 
 quitting colors 110 
 
 relieving or harboring enemy 110 
 
 various crimes 113 
 
 Mitigation of sentence: 
 
 of garrison or regimental court 66, 67 
 
 of general court 66, 67 
 
 of prisoner long confined before trial 69 
 
 of summary court 81 
 
 Motion to strike out: 
 
 action of court in case of 20 
 
 Municipal ordinances: 
 
 part of " laws of the land " 113 
 
 Murder : 
 
 offense of, in time of war 113 
 
 Muster, false: 
 
 offense of making 103, 105 
 
 offense of signing, etc., roll containing 105 
 
 Mustering: 
 
 persons not soldiers as soldiers 10.3 
 
 receiving money, etc., for 103 
 
 Mutiny : 
 
 beginning, exciting, etc 106 
 
 compelling commander to surrender 110 
 
 failing to report and suppress 106 
 
 Nayy: 
 
 deserter from 34 
 
 Neglect of duty: 
 
 by sentinel, limit of punishment 57 
 
 causing damage to public property 105 
 
 form for charge of 141 
 
 in failing to care for captured property 104 
 
 in failing to surrender criminals 113 
 
 to the prejudice of good order, etc 115 
 
 New member: 
 
 if evidence in, not to sit 29 
 
 record regarding 63 
 
220 INDEX. 
 
 Noisy or disorderly conduct in quarters: Page. 
 
 limit of punisliment 50 
 
 Nolle prosequi: 
 
 court can not order 20 
 
 23 
 
 judge-advocate can not enter 
 
 Noncommissioned officer: 
 
 abuse of authority by, limit of punishment 56 
 
 arrest by, under 24th Article : 100 
 
 arrest of 8 
 
 confinement of 8 
 
 disobedience of orders of, charged under C2d Article 135 
 
 disobedience of orders of, form for charge 141 
 
 disobedience of orders of, limit of punishment 56 
 
 encouraging gambling, limit of punishment 56 
 
 insubordination to, limit of punishment 56 
 
 jurisdiction over, by general court 15 
 
 jurisdiction over, by inferior court 16, 130 
 
 limit of punishment of 59 
 
 making false report, limit of punishment 56 
 
 punishments for 49 
 
 reduction of, by summary court 81 
 
 reduction of, post noncommissioned staff, etc 49 
 
 using threatening or insulting language to 56 
 
 using violence to, etc., when quelling quarrel 53 
 
 Oaths : 
 
 court must be sworn at each trial 29 
 
 for purposes of military administration .'51, 121 
 
 in investigation of frauds, etc .".1, 132 
 
 of enlistment 102 
 
 of members, judge-advocate, etc., of courts-martial 29-31 
 of members, recorder, etc., of courts of inquiry __ 87, 125 
 
 procedure during administration of 30 
 
 profane, penalty for using 112 
 
 to deposition 40 
 
 Objection : 
 
 to question, how recorded 152 
 
 Offense : 
 
 act as both civil crime and military 14 
 
 against person or property of civilian 113 
 
 joint cliarges for 17 
 
 jurisdiction as regards 15 
 
 no person tried twice for same 122 
 
 not capital and to the prejudice, etc 113 
 
 penitentiary 51, 122 
 
 statute of limitation for 34, 122 
 
INDEX. 221 
 
 Officer: Page. 
 
 charged with crime to be arrested 6, 116 
 
 in arrest furnished copy of charges 7, 117 
 
 jurisdiction over retired 14 
 
 meaning of word in Articles of War 102 
 
 retirement of. See Retirement of officers. 
 
 to keep good order in his command 112 
 
 Officer of day: 
 
 duties respecting prisoners and charges 9 
 
 Orders : 
 
 convening. See Convening orler. 
 
 general, publishing proceedings 69 
 
 neglect to comply with standing 135 
 
 of contract surgeon, etc., disobedience of 135 
 
 of a noncommissioned officer, disobedience of 135, 142 
 
 of an officer, disobedience of 106 
 
 of an officer, disobedience of, form for charge 135 
 
 trials by summary court not published in 80 
 
 Organization : 
 
 of courts-martial _ 20 
 
 Pardon : 
 
 by the President 67 
 
 by the reviewing authority 66, 67, 81, 124 
 
 of penitentiary prisoners 67 
 
 Parole : 
 
 penalty for changing 110 
 
 Pay: 
 
 false certificate relating to, penalty for signing 105 
 
 forfeiture of, as a punishment 49 
 
 forfeiture of, only in favor of United States 50 
 
 of civilian witness, giving deposition 41 
 
 of civilian witness 43, 131 
 
 of civilian witness, tender of 35, 38, 43, 131 
 
 of interpreter 28 
 
 of officer, suspension of 122 
 
 of reporter 28 
 
 of reporter, form for 186 
 
 of soldier awaiting sentence 69 
 
 of soldier can not be assigned by sentence 50 
 
 of soldier, detention and retention not authorized 171 
 Pay Department: 
 
 civilian witness paid by 38, 45, 131, 176, 179 
 
 forms of, for account of civilian witness 177-185 
 
 form for account of reporter 186 
 
 Instructions regarding payment of witness 179, 183 
 
 interpreter and reporter paid by 28 
 
222 INDEX. 
 
 Penitentiary : Page. 
 
 clemency for prisoner confined in 67 
 
 confinement in, limit of 51 
 
 confinement in, offenses punishable by 51, 122 
 
 erroneously designated in sentence 68 
 
 for military convicts, at Fort Leavenworth, Kans. 67 
 
 sentence of confinement in, mitigation of 67 
 
 sentence to confinement in, what to state 61 
 
 sentence to confinement in, when legal 61 
 
 unless sentence authorizes, confinement in, illegal 68 
 
 when department commanders may designate 68 
 
 Perjury : 
 
 false swearing distinguished from 144 
 
 form for charge 144 
 
 limit of punishment 55 
 
 Persuading soldier to desert: 
 
 limit of punishment 55 
 
 offense of 111 
 
 Plea : 
 
 accused stands mute 33, 121 
 
 of guilty, statement inconsistent with 33 
 
 of guilty, testimony after 33 
 
 special, of second enlistment 34 
 
 special, of statute of limitation 34 
 
 special, procedure in case of 33, 34 
 
 special, to the jurisdiction, etc 33 
 
 special, in abatement or in bar 33 
 
 Post: 
 
 abandoning, etc 110 
 
 sentinel sleeping on or leaving 109 
 
 sentinel sleeping on or leaving, forms for charges 137 
 
 Post commander: 
 
 charges laid before the 19 
 
 charges usually presented to, by old ofiicer of day 9 
 determines when and what cases go to summary 
 
 court 79, 82 
 
 forwards charges for serious offenses 19 
 
 forwards completed proceedings of certain courts 76 
 furnishes company commanders copies of summary 
 
 court record 83 
 
 furnishes detail to execute warrant of attachment 36 
 
 may use discretion regarding trial for minor offenses 82 
 
 must act as summary court in certain cases 78 
 
 must personally investigate charges forwarded 19 
 
 refers charges for minor offenses to summary court 19 
 
 reports number of cases tried by summary court 76 
 
INDEX. 223 
 
 Post noncommissioned staff : Page. 
 
 may bo discliarj,^ed but not reduced 49 
 
 unless they object, may be tried by inferior courts 16, 1^.0 
 See also Noncomtnissioned officer. 
 
 Postponement : 
 
 application for, when made 31 
 
 extended delay wanted 32 
 
 on account of absent witness 32 
 
 Post return: 
 
 officers who act as summary court, reported on 83 
 
 Precedence : 
 
 military ordinarily gives, to civil court 14 
 
 President of a court-martial: 
 
 duties of 23 
 
 the officer highest in rank on court 23 
 
 President of the Tnited States: 
 
 as confirming authority 66, 76 
 
 as convening authority 12, 13 
 
 as reviewing authority 66 
 
 limits of punishment prescribed by 51 
 
 may order courts of inquiry 125 
 
 must appoint court in certain cases 13 
 
 pardoning power of 67 
 
 proceedings of courts appointed by, forwarded to 
 
 Secretary of War 76 
 
 proceedings of courts to be confirmed by, forwarded 
 
 to Judge-Advocate-General 66, 76 
 
 using contemptuous words regarding 106 
 
 PrcTious convictions: 
 
 by civil court, inadmissible 48 
 
 by courts-martial, evidence of 47, 57 
 
 consideration of 19 
 
 consideration of, by summary court 80 
 
 effect on punishment 48, 58 
 
 evidence of, how recorded 156, 159 
 
 evidence of, submitted with charges 19, 58, 80 
 
 evidence of, when admissible 57 
 
 evidence of, when received by court 48 
 
 meaning of 47 
 
 not limited to those for similar offenses 48 
 
 proper evidence of 48, 58 
 
 Prisoners : 
 
 abatement allowed 72 
 
 confinement of, after trial 70 
 
 confinement of, before trial 8 
 
 counsel for 25 
 
224 INDEX. 
 
 Prisoners — Continued. Paj;e. 
 
 duty of officer receiving 9 
 
 escaped, effects of 71 
 
 forwarded to place of confinement 71 
 
 not to be arraigned in irons 21 
 
 penitentiary, clemency for 67 
 
 placed in irons, report regarding 70 
 
 releasing without authority, offense of 117 
 
 report of, when and by whom made 9 
 
 suffering to escape, form for charge 141 
 
 suffering to escape, limit of punishment for 5G 
 
 when to be separated 8, 9 
 
 without charges against, when released 9 
 
 Procedure of courts-martial. See Couris-martial. 
 
 Proceedings of courts-martial: 
 
 action on, by reviewing authority 65 
 
 application for copy of 27, 76, 145 
 
 appointed by the President 76 
 
 authentication of 24, 63 
 
 communications relating to 76 
 
 general, revised by Judge-Advocate-Gencral 75 
 
 general, where filed and kept 75 
 
 inferior, where filed and kept 77 
 
 orders, general, publishing 69 
 
 orders, publishing, how dated 69 
 
 requiring confirmation by the President 66, 75 
 
 See also Record of proceedings. 
 
 Proceedings of courts of inquiry: 
 
 authentication of 126 
 
 record of, as evidence 126 
 
 Profanity : 
 
 penalty for using 112 
 
 Prosecutor : 
 
 can not convene general court 13 
 
 Provisions : 
 
 violence to persons bringing, to camp 112 
 
 Public stores: 
 
 taken from enemy, secured for United States 104 
 
 Punishment: 
 
 ball and chain 49 
 
 branding prohibited 49, 122 
 
 by carrying heavy log forbidden 50 
 
 discretionary or fixed 49 
 
 effect of previous convictions on 58, 59 
 
 flogging forbidden 49, 122 
 
 for contempt of court 122 
 
INDEX. 225 
 
 Punishment — Continued. Pago. 
 
 forfeiture, in favor of T'nited States oulj- HO 
 
 for officers 49 
 
 for soldiers 40 
 
 guard duty, as, forbidden 50 
 
 imprisonment beyond term of enlistment 14, i:50 
 
 limits of. See Maximum limits of. 
 of post noncommissioned staff and hospital ser- 
 geants (1st class) 49 
 
 proper amount of 49 
 
 penitentiary 51, 122 
 
 power of reviewing authority respecting CT 
 
 solitary confinement 50. 60 
 
 substitutions for prescribed 60 
 
 tattooing forbidden 49, 122 
 
 Quarrels : 
 
 authority to quell 106 
 
 refusing to obey noncom. otficer quelling, limit 5.') 
 
 Quarters : 
 
 lying out of, without leave lOS 
 
 Quitting guard: 
 
 form for charge 137 
 
 limit of punishment 55 
 
 offense of 110 
 
 Quorum: 
 
 for general court 12 
 
 Rank: 
 
 loss of, as punishment . 49 
 
 of members of courts 22 
 
 of militia officers on duty with regulars 126 
 
 of regular and volunteer officers 126 
 
 suspension from 49 
 
 Rape: 
 
 offense of, in time of war ll.'J 
 
 Recommendation to clemency: 
 
 not to be embraced in sentence 65 
 
 who should sign 65 
 
 Recess : 
 
 form for recording 155 
 
 Record of proceedings : 
 
 accurate, to be kept 63 
 
 accused entitled to copy of 125 
 
 application for copy of 76 
 
 authentication of 24, 63, 126 
 
 copy, if furnished during trial 27 
 
 copy, carbon, disposition of 27 
 
 50963 15 
 
226 INDEX. 
 
 Record of proceedings — Couliiiiu d. Page. 
 
 copyable ribbon to be used ^_ G'A, 147. 
 
 daily, subscribed by judge-advocate 24, 0:5 
 
 disposition of 75 
 
 documents made part of IZto 
 
 forms for. See Forms. 
 
 forwarded to reviewing autliority 24 
 
 hours of session noted in 148, 157, 158 
 
 loan for use 45 
 
 must contain a complete history of case 64 
 
 of closed session 64 
 
 of summary courts, copies furnished 83 
 
 pi'esence of members, how recorded 148 
 
 previous convictions, evidence of, recorded 156, 159 
 
 reading of record of preceding day 63 
 
 recommendation, where recorded 65 
 
 revision of 65 
 
 statement of accused, when written, signed, etc 155 
 
 statement of service — not part of record 64 
 
 See also Proceedings of courts-martial. 
 
 Recruits : 
 
 articles of war to be read to 102 
 
 Redress of irrongs: 
 
 of citizens 112 
 
 of officers 108 
 
 of soldiers lOS 
 
 Reduction to ranlts: 
 
 as a punishment 40 
 
 by summary court 1 81 
 
 form for sentence for 170 
 
 in case of previous convictions 59 
 
 of first-class privates 59 
 
 of noncommissioned officers 59 
 
 prohibited as to post noncommissioned staff and 
 
 hospital sergeants (1st class) 49 
 
 Regimental courts-martial. See Courls-mariiaJ. 
 
 Regulations : 
 
 part of written militarj^ law 6 
 
 Relieving the enemy : 
 
 offense of 110 
 
 Remission: 
 
 of forfeiture 69 
 
 of sentence 67, 81, 124 
 
 Reporter : 
 
 how authorized 26, 87, 89, 187 
 
 mileage — 185 
 
INDEX. 227 
 
 Reporter — Continued. Page, 
 
 no compensation for, if in Government service — 28 
 
 oath of '■ 31 
 
 pay of 27, 90 
 
 pay of, form for account 180 
 
 sworn in eacli case 'sO 
 
 Report, false: 
 
 by noncommissioned officer, limit of punisliment — 56 
 
 Report of summary court cases : 
 
 form for 161 
 
 forwarded montlily 77, 130 
 
 where filed — 77, 130 
 
 Report of surgeon ou deserter: 
 
 form for 145 
 
 Reprimand : 
 
 as a punishment 49 
 
 Reproachful language: 
 
 penalty for using 107 
 
 Retainers to camp: 
 
 jurisdiction over ^ 15 
 
 Retired officers: 
 
 ineligible as members of courts 11 
 
 jurisdiction over _. 14 
 
 Retired soldiers: 
 
 jurisdiction over 14 
 
 Retirement of officers: 
 
 on finding of retiring board. See ReUring hoards. 
 On promotion examination (act of October 1, 1890) — 
 
 disability in line of duty, with higher rank 97-101 
 
 finding by board 97 
 
 finding of board, action on 100, 101 
 
 line of duty, meaning of 97, 98 
 
 record, authentication of 100 
 
 Retiring boards: 
 
 challenge for cause 91, 92 
 
 constitution and composition 89 
 
 counsel before 90 
 
 finding 94 
 
 finding, action on 95 
 
 finding, cause of disability 92, 93 
 
 finding, conclusive 95, 96 
 
 form for order and record : 166 
 
 hearing, right of officer to 90 
 
 oath of members 91 
 
 oath of recorder 91 
 
228 INDEX. 
 
 Retiring boards — Continued. Pago. 
 
 powers of 01 
 
 procedure of 1)1. 1)2 
 
 proceedings, record of KJO 
 
 recorder of 81) 
 
 stenograpliic reporter for 81), 187 
 
 See Retirement. 
 
 Kotreat : 
 
 failing to retire at, offense of 109 
 
 Returns : 
 
 false, penalty for making 10:5 
 
 of regiments, etc., made monthly 10;> 
 
 penalty for not making lOo 
 
 Reviemng authority : 
 
 action of the President as CO 
 
 approval of sentence Gr> 
 
 can not change finding 47 
 
 can not change sentence 08 
 
 can not delegate authority 00 
 
 can not increase punishment awarded 08 
 
 can not postpone sentence of dishonorable discharge 01) 
 
 may change place of confinement 08 
 
 may direct revision of record 0") 
 
 mitigation by 07, 81. 124 
 
 mitigation by, for long confinement before trial -_ 00 
 
 of garrison court 84 
 
 of general court 05 
 
 of regimental court 8.5 
 
 of summary court 81 
 
 orders of, publishing proceedings GO 
 
 orders of, remitting forfeiture 00 
 
 pardoning power of 07 
 
 suspension of sentence by 07 
 
 Revised Statutes: 
 
 certain, part of written military law 
 
 section i;{4;5, as to spies l-'7 
 
 sections HiiOO and 5;51.j, as to trading with enemy ll!7, 128 
 
 Revision of record : 
 
 by whom directed 0.5 
 
 can only be made by court 05 
 
 form for 158 
 
 Reward for apprehension: 
 
 when slopped against soldier's pay 50 
 
 Rohber y : 
 
 offense of, time of war H-*^ 
 
 to the prejudice of, etc., limit of punishment 55 
 
INDEX. 229 
 
 Safeguard : Page. 
 
 penally lur forcing ll.'i 
 
 Sale of victuals, etc.: 
 
 duty, etc., upon or interest in 105 
 
 Seating of court: 
 
 arrangement of seats 21 
 
 members sit in order of ranli 22 
 
 Secretary of AVar: 
 
 application for clemency forwarded to 07 
 
 applied to when expert witnesses are necessary __ 4;'> 
 
 approval of, for confinement in State penitentiary G8 
 
 certain proceedings forwarded direct to 24 
 
 Sedition: 
 
 beginning, exciting, etc 106 
 
 failure to report or suppress 106 
 
 Selling clothing, etc. See Clothiiifj, etc. 
 
 Sentence : 
 
 abatement of, for good conduct 72 
 
 approval by reviewing authority 65, 66 
 
 confirmation by the President 66 
 
 contemplating payment of stated sum 62 
 
 date of commencement of 69, 72 
 
 dishonorable discharge, effect on unserved confine- 
 ment 73 
 
 forfeiture for certain number of months 62 
 
 forms for 170 
 
 imposing tours of guard duty, forbiddtni 50 
 
 in excess of -legal limit 61) 
 
 meaning of word days in 72 
 
 mitigation for confinement before trial 69 
 
 not operative before confirmation 69 
 
 of an officer for cowardice or fraud 122 
 
 of death, confirmation of 123 
 
 of death, suspension of 67, 124 
 
 of death, vote upon 61, 122 
 
 of dismissal in time of peace . 123 
 
 of dismissal in time of war 124 
 
 of dismissal, suspension of 67 
 
 pardon or mitigation of GO. 81, 124 
 
 penitentiary erroneously designated in 68 
 
 procedure when awarding 61 
 
 punishment discretionary, limit ascertained 60 
 
 recommendations not embraced in 65 
 
 respecting general oflBcers ; 124 
 
 reviewing authority can not change 68 
 
 second, begins when 73 
 
2:]0 INDEX. 
 
 Heutence — Continued. I'sige. 
 
 to confinement at post (Jl, 62 
 
 to confinement, bej,nns wlien ('/.), 71 
 
 to confinement in penitentiary for over one year __ QH 
 
 Sentinel: 
 
 allowing prisoners to olitain liquor, limit of pun- 
 ishment r»T 
 
 disclosing or changing watchword 110 
 
 disrespect to, limit of punishment 57 
 
 drinking with prisoner, limit of punishment 57 
 
 leaving post before being relieved 100 
 
 quitting post to pillage 110 
 
 resisting or disobeying, limit of punishment 57 
 
 sleeping on post, form of charge 1M7 
 
 sleeping on post, offense of 100 
 
 suffering prisoner to escape, form of charge 141 
 
 suffering prisoner to escape, limits of punishment 5G 
 
 Soldier : 
 
 charged with crimes to be conlined llO 
 
 effects of deceased, disposition of 127 
 
 jurisdiction over retired 14 
 
 meaning of word in Articles of War 102 
 
 Solitary confinement: 
 
 limit of 50, (50 
 
 Special orders. See General and special orders. 
 
 Specification: 
 
 instructions for drawing 18 
 
 Spy: 
 
 confirmation of sentence of 12r» 
 
 jurisdiction over 15 
 
 statute relating to 127 
 
 Standing mute. See Plea. 
 
 Standing order: 
 
 neglect to comply with ];*.5 
 
 Statement : 
 
 accused may sul)mit 40 
 
 inconsistent with plea 8.S 
 
 record of 155 
 
 Statement of service: 
 
 form for 145 
 
 not part of record 64 
 
 to accompany charges 19 
 
 Statute of limitation. See LuiiUation, tilatulc of. 
 
INDEX. 231 
 
 Stores : Pago. 
 
 accountability for military 104 
 
 military, lost, spoiled, etc 105 
 
 public, taken from the enemy 104 
 
 Striking superior officer: 
 
 form for charge 135 
 
 ofifense of 106 
 
 Subpoena (or Summons) : 
 
 by civil court 42 
 
 forms for 171-173 
 
 officer or soldier receiving 42 
 
 proof of service 35 
 
 sent through military channels 35 
 
 sent with interrogatories 40 
 
 service of 35, 3G 
 
 Substitution of punishment: 
 
 rule for 60 
 
 Suffering prisoners to escape: 
 
 forms for charges 141 
 
 limits of punishment 56 
 
 Summary court. See Courts-martial. 
 
 Sunday : 
 
 trials on, by summary court 82 
 
 Superintendent, U. S. Military Academy: 
 
 convenes courts for trial of cadets 13 
 
 Surgeon : 
 
 contract, ineligible as member of court 11 
 
 report of, to accompany charges 20 
 
 report of, to accompany charges, form for 145 
 
 Surrender : 
 
 compelling commander to 110 
 
 Suspension: 
 
 as a punishment 49 
 
 from rank and command 49 
 
 of pay and emoluments 122 
 
 of sentence of death or dismissal 67, 123, 124 
 
 Tattooing: 
 
 as a punishment, forbidden 49, 122 
 
 Territoriality : 
 
 as affecting jurisdiction 14 
 
 Testimony : 
 
 corrections in 63, 152 
 
 reading of 63. 152 
 
232 INDEX. 
 
 Threatening and insuUinsr languase : Page. 
 
 limit of punishment for usinj,', to noncom. officer 56 
 
 Trading with the enemy: 
 
 statutes relating to 127, 128 
 
 Trial : 
 
 delay in, by summary court 79 
 
 for officers summarily dismissed 15 
 
 hours of. See Hours of session. 
 
 on Sunday, by summary court 82 
 
 postponement of 31, 121 
 
 second, for same offense 122 
 
 Typewriter : 
 
 copyal)le ribbon to be used in court-martial records G3, 147 
 
 Uniform : 
 
 of accused • 21 
 
 of judge-advocate 21 
 
 of members- 21 
 
 of military witnesses 21 
 
 Veterinarians. See Contract surgeon, etc. 
 
 Victuals, etc.: 
 
 duty upon or interest in 105 
 
 Voire dire: 
 
 examination on 29, 149 
 
 Volunteers : 
 
 officers of, as members of court 11 
 
 regular officers can not try 11, 118 
 
 Vote : 
 
 method of taking 22, 61 
 
 tie 22 
 
 upon death sentence Gl, 122 
 
 Warrant of attachment: 
 
 by whom issued 36 
 
 force necessary to execute 36 
 
 form for 174 
 
 officer executing, served with writ of habeas 
 
 corpus 36 
 
 procedure in issuing 36, 37 
 
 summary court can not issue 79 
 
 Watchword : 
 
 penalty for disclosing or changing 110 
 
 Witness : 
 
 accused as 45 
 
 attachment of. See Warrant of attachment. 
 
 attendance of, civilian, how procured 36 
 
 attendance of, in capital or special cases 41 
 
INDEX. 233 
 
 Witness — Continued. Page. 
 
 attendance of military, how procured 38, 40, 42 
 
 attendance of, witliout State, etc o9, 41 
 
 civilian, refusing to appear or testify, punishable 37, 43, 131 
 
 departure of 42 
 
 deposition of. See Deposition. 
 
 examination of, manner of 46 
 
 examination of, rules to be followed 45 
 
 examination of, witnesses separated 45 
 
 experts, employment and pay of 43 
 
 fees of, before civil court 43-44 
 
 fees, etc., of, payable by Pay Department 45 
 
 fees of, certificate of attendance 44 
 
 fees of civilian, in Government employ 43 
 
 fees of civilian, not in Government employ 44 
 
 fees of civilian, payment or tender of 35, 43, 131 
 
 fees of, forms for accounts 177-182 
 
 fees of, instructions regarding 179-185 
 
 oath of 24, 30 
 
 privilege of 39, 45, 131 
 
 uniform of 21 
 
 Wounding: 
 
 with intent to kill, etc., in time of war 113 
 
 Wrongs: See Redress of wrongs. 
 
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