I INSTRUCTIONS FOR COURTS-MARTIAL AND JUDGE ADVOCATES. PREPARED BY Major THOMAS F. BARR, Judge Advocate, U. S. A. SAINT I'M I.. MINN-: HEADQUARTERS DEPARTMENT &B DAKOTA, DBOEMBBK 1.'', 1ST9. 6 j Ac IWl-£(> HEADQUARTERS DEPARTMENT OF DAKOTA, Saint Paul, Minn., December 15, 1879. Cihculah: The following formulas for the record of proceedings of General Courts-Martial, and of Garrison Courts, and Instructions for Courts and Judge Advocates, are published for the information and guidance of officers serving in this Department: Page 1. Case 1. Proceedings of a General Court-Martial which convened at pursuant to the following order : HEADQUARTERS DEPARTMENT OF DAKOTA, 18... SrECIAT, Okoers I No S A General Court-Martial is hereby appointed to convene at Fort Snelling, Minn., on the of at in o'clock a. m\, or as soon thereafter as practicable, for the trial of such persons as may be brought before it by authority from these Headquarters. Detail for the Coukt. 1. Colonel U. S. Infantry, 2. Major U. S. Cavalry, 3. Major U. S. Cavalry, 4. Captain U. S. Infantry, 5. Captain U. S. Cavalry, 6. Captain U. S. Infantry, 7. Assistant Surgeon U. S. Army, 8. First Lieutenant V. S. Infantry, First Lieutenant U. S. ( 'avalry, is appointed Judge Advocate of the Court. No other officers than those named can he assemhled without man- ifest injury to the service. By Okder of Brigadier General Terry: Commanding the Department. i GEO. ]). iuoolks, .<'.:,.. . . Assistant Adjutant General. FORT SNELLING, MINN. > : is..: The Court met, pursuant to. the foregoing order, at 10 o'clock a. *l ' Pkesknt: 1. Colonel :..../ IT. & Infantry, 2. Major U. S. Cavalry, 3. Major U.S. Cavalry, 4. , "Captain .. U: !S. Iwfantry, 5. Captain U. S. Cavalry, 6. Captain.. - .'.".... v.. ...... .. -...-..IT. S. Infantry, 7. Assistant Surgeon U. S. Army, « First Lieutenant V. S. Cavalry, Judge Advocate. ;.- .;-,. , Absent r 1. First Lieutenant U. S. Infantry. (Here set forth tin cause of absence "fan// absent meiriber, ifthesamts Is known. It is the duty of. cj. Judge Advocate to ascertain if possible, the cause of absence and record it, and in cases >>/ sickness, medical ,-, rtijiriiLs in '/st />, fur'niahed'by tin abs\ rit mania H\ Und dppi tided to the record.) ' • ■ • ... i • t • • The Court then proceeded to the trial of » Regiment, U. IS. Infantry, who thereupon came before t lie Court, and having heard the order appointing it read, was asked if be had any olijeclion to any member present, named in the order; to which lie replied in the negative, (or) the accused submitted the following objection to ~. . , (Here insert tlie objection.) 3 r The challenged member stated that : {Tfere insert the statement of the challenged member, who should always be required to respond to the challenge and inform the Court uponHts merits. ) The Court was thereupon closed, the challenged member and the- accused retiring, and, after due deliberation, the Court having re- opened, I be challenged member and the accused resumed their seats; when the decision of tbe Court was announced by the Judge Advocate, that the objection of the accused is sustained, and (here insert chal- lenged member's name ami rank,) is therefore excused from serving as a member of the Court in this case; (»/■) that the" objection of the accused is over-ruled. (Objection can only be ttrr/cd 1<> one member at a time, and a record as above mvst be made in each instance. If the person on trial has no farther objection to offer, the record will continue as ft dimes :) The accused having no further objection to offer, the members of^ the Court were then severally duly sworn by the Judge Advocate, and t lie. Judge Advocate was then duly sworn by the President of the Court : all Of wbich oaths were administered in the presence of the accused. (For form of oaths see 84£h and 85th Articles of War.) If a clerk is introduced, the following form of oath will be admin- istered to him by the Judge Advocate: * You, A. — 15. — , do swear that you will faithfully perform the duties of a clerk of this Court, and make true record of the proceed- ings bad in the cause now on trial, so help you God. Tbe record will state as follows: The Judge Advocate bcrc requested authority to employ a citizen clerk (or permission to introduce an enlisted man as Clerk of the Court,) which was granted, and A. 15. was thereupon duly sworn by t-lie Judge Advocate to faithfully perform the duties of his office,; which oath was administered in presence of tbe accused. , Should the person on trial-desire to introduce counsel, he should now make application, and the record will continue as follows: . — :* . * Note - a citizen olei k cam onlj !><■ employed i>\ the Judge Advocate by order ol tlic (on; t. when it is not practicable to procure tlw services pi an enlisted man; such employment should only be authorized in case's of importance, ami when an extended record la probable. The accused now requested permission of the Court to introduce , ; , as his counsel, which request was granted. - (If any deUty in the trial is desired, application should now be made f and in passing upon the request, the Court should be governed by para- graphs SS6 and 887, Revised Army Regulations of 1863.) . The accused was then duly arraigned upon the following charge and specification : CHANGE. Specification . — To winch the accused pleaded as follows : To the Specification, "Guilty," (or) " Not (iuilty." To the Charge, "Guilty," (or) "Not Guilty." (Or the accused may, in lieu of pleading to the merits, put in a special plea in bar of trial, to (he jurisdiction, or autrefois convict, or other recognized plea. If he stands mute the plea of not guilty should be entered on the record with a statement of his refusal to plead.) Captain of the U. S. Infantry, a witness for the prosecution, was then duly sworn hy the Judge Advo- cate, and testified as follows: (For form of oath see 92rf Article of War.) Question, hy the Judge Advocate : * * Ansicer: * * * * * # * * * * * Cross-Examination. Question, hy accused : * * * Answer: * * * * * (If the accused declines ts> cross-examine the witness, it should so appear on (lie record. If new matter has been elicited in (lie cross-examina- tion, bearing upon the issue of the trial, tlie Judge Advocate will re- examine the witness, should the facts require it.) (After the exnmination-in-chief, the cross-examination and re-exam- ination, (lie Court can ask such questions as it may deem necessary. A question by a member of tlie Court, if objected to and rejected, must be recorded as "by a member.' 1 If not objected to tlie record will continue as follows :) 5 . Question, by the Court: * * Answer: * * * * * * * * * ( After nil the testimony for the prdsecution lias been adduced, the record will continue as follows. The testimony of the witness was then read to him by the Judge Advocate, (or the clerk), and pronounced by hi)ii cor- rectly recorded : * The Judge advocate then announced that the prosecution rested, The Court then at. . . .o'clock p. m., adjourned to meet to-morrow at 10 o'clock a. M. 1st Lieutenant U. 8. Cavalry, Jud"c Advocate. *6* Second Day. FORT SNELLING, MINK, 18 ... The Court met, pursuant to adjournment, at 10 o'clock A. m. Phesent : {Here give names, rank, dc, of member's present and of Judge Advocate.) Absent : (Names, rank, and cause of absence.) The accused and his counsel, (and clerk of Court,) also present. The proceedings of the instant were then read and approved. Sergeant of the U. S. Infantry, a witness for the defence, was then duly sworn and testified as follows : Question, by the accused : * * * Answer : * * * * * * * * * Ckoss-Examinatton. Question, by Judge Advocate : * * * •Note.— This course should be pursued and record made at the close of the examination of each witness. ■ (5 *: <• -. Answer : * * # ♦ * # * Questurn t by tbe Court: # * ^Ansicer: * * * - # ■ # * # The accused having no further testimony to offer, made the follow-' ing statement in his defence, (or) submitted a written statement in ids defence, which was read to tho Court by. the accused, (or by the Judge Advocate,) and is hereto annexed marked "A."* The Judge Advocate replied as follows': • (Here insert the remarks of me Judge Advocate if verbal; if written, they should be read and annexed, q§ in the ease of the defence,) (or) the Judge Advocate submitted the case without remark. The Court was then clearOd and closed for deliberation, and hav- ing maturely considered the evidence adduced, finds the accused. . . U. S. Infantry : Of the Specification, " Guilty," (or) "Not Guilty." Of the Charge, ' "Guilty," (or) " Not Guilty." And the Court does therefore sentence him, of .(: ..... .Regiment U. S. Infantry, to. . , . . . : , (or) And the Court does therefo're acquit him, of Regiment U. S. Infantry. .Colonel U. S. Infantry, President. 1st Lieutenant U. S. pavalry, Judge Advocate. ( The following will be added to tlie, record of the last ease brought before the Court.) »Note. — The statement of the accused, when in writing or argument in liis de- fence, and all pleas in bar of trial or abatement, should be signed bj himself anJ appended to the record,' and referred to in the proceedings as haying been sub- mitted by him, whether he is defended by counsel or not. There being no further business before it, the Court then, at. o'clock m., adjourned sine dte. ••••• Colonel U. S. Infantry, ■ President. v . - 1 1st Lieutenant U.S. Cavalry, j Judge Advocate. (.1 space of at le vst tpo p ig<* skoyld be left at pie close of each record, for the demion and orders of tin reviewing authority. All Exhibit* and tlie recommendation of the Court, if any is made, should be appealed afi r {he s#aa left for recording tjn: action ofjfie rqtm icing affilwrity.) The proceedings should be recorded on Legal Cap ]>aper, each record folded in four folds, and endorsed on the hist fold as follows; iin ii i >ii^^^ -^^-^j-_^_m^JTt^ ^■i i i. jJ iaiy w FORT'SNELUXG.jriXX., ' \ ■ In. . . ;•; ..- . .i Proceedings of .a General. Court-martial, appointed by Special Orders Xo , dated Headquarters Department oi Dakota Is. . . . ■■ Colonel. U. S. Infantry, . President. 1st Lieutenant XT. S. Camden, Judffe Advocate. Pi ivate. . . • Cask Tlltitl). .Infantry. When a record is returned to t lie Court by the reviewing authority for revision, the subsequent proceedings thereon should be recorded asfol,mvs: *j 8 Revision. FORT SNELLING, MINN., 18... The Court re-convened with closed doors, pursuant to the follow- ing order, (or instructions,) at 10 o'clock A. >r.: (Here insert copy of order, or instructions. ) Present. # # * * * Absent. ***** The communication from the Adjutant General, Department of Dakota, of date 18 .... , (or memorandum containing the instructions to the Court, and the reasons of the reviewing authority for requiring a re-consideration of the findings, or sen- tence, or correction of the record,) was then read to the Court by the Judge Advocate, and is attached to the record and marked, " " The Court having carefully considered the whole of the proceed- ings and the reasons set forth for revision : a. Do now revoke their former findings, and find, &c, &c. or, b. Do now revoke their former sentence, and do sentence, &c. , &c. or, c. Do now respectfully adhere to their former findings and sen- tence. or, d. Do now amend the record by, &c, &c. Colonel U. 8. Infantry, President. 1st Lieutenant U. S. Cavalry, Judge Advocate. GARRISON COURTS-MARTIAL. Ptrbt Day. Proceedings of a Garrison Court- Martial held at Fort Ellis, M. T. pursuant to the following order: 9 HEADQUARTERS FORT ELLIS, M. T., 18 Post Orders ) No f A Garrison Court-Martial will convene at this Post on the IS , at 10 o'clock a. m., or as soon thereafter as practicable, for the trial of such prisoners as may properly be brought before it. Detail for the Court. 1. First Lieutenant A. B., 2d Cavalry. 2. First Lieutenant C. D., 2d Cavalry. 3. Second Lieutenant E. P., 2d Cavalry. Second Lieutenant G. II., 2d Cavalry, is appointed Judge Advocate.* By Order of (Signed) 1st Lieutenant Infantry, Post Adjutant. FORT ELLIS, M. T., 18 The Court met, pursuant to the foregoing order, at o'clock a.m. Present : First Lieutenant A. B., 2d Cavalry. First Lieutenant C. D., 2d Cavalry. Second Lieutenant E. F., 2d Cavalry. Second Lieutenant G. II., 2d Cavalry, Judge Advocate. The Court then proceeded to the trial of Private Company Regiment U. S. Infantry, who was then brought before the Court, and having heard the order convening it read, was asked if he had any objection to being tried by any member named therein; to which he replied in the negative. The members of the Court were then severally duly sworn by the Judge Advocate, and the Judge Advocate was then duly sworu by the President of the Court, all of which oaths were administered in the presence of the accused. *Thr iiru 74tti Article <>f War gives authority to appoint a Judge Advocate for Garrison and Regimental courts. 10 ( The record will be made up in the same general manner as indicated for the proceedings of General Courts.) The decision and orders of the Reviewing Officer, confirming, dis-- approving, or remitting the sentence, should follow immediately after the signatures of the President and Judge Advocate, and be 6igtied by him and then forwarded, without delay, together with a. copy of his Post or Regimental Order promulgating the proceedings,. to Department Headquarters, for the supervision of luo Department Commander. [See paragraph b'JS Army Regulations.) GENERAL INSTRUCTIONS. ClIAKGES AND SPECIFICATIONS. In preferring charges, care should he used to specify the date and locality of the alleged offence. When doubt exists, it ma}' be al- leged that the act specified was committed "at or near" a certain place and "on or about" a certain date. Before charges are for- warded to Department Headquarters for trial 1))' a General Court, Post Commanders should investigate the character and force of the testimony on which they are based, .-md be assured that the alleged facts can be fully established ; and also, that the offences charged are of so grave a nature that a Garrison Court cannot adjudge a sufficient penalty. Charges should be laid under the specific article of war pertaining to the offence. Charges cannot be legally preferred under the G2d Article of War when the offence committed is in violation of an}' other article. In an absence from any appointed parade, drill, or other exercise, hut not from the limits of the post, the specification should usually le charged under the 33d Article of War— but otherwise under the 32d, and somct imes under both. Soldiers found drunk on any guard, party, or other duty, after having been actually placed on such duty', and in the ranks, and not until then discovered to be drunk, should "be charged with violation of the 3Sth Article of War — but other- wise, under the (52d Article, as when unable to turn out for, orattend, guard-mounting. Charges laid under Articles of War which prescribe possible cap- ital punishment, such as Ihe 21st or 3!>th Articles, are not properly cognizable by a Garrison or Regimental Court, nor should degrading 11 crimes— like theft, to the prejudice of good order, &c— he tried be- ■ fore such tribunals! In preparing several specifications under a charge, the date and place of the alleged offence should be set foifttt in each, and not merely in the final specification. A charge of "Violation of the 62d Article of War," is bad. Any ■ of the" crimes, disorders and neglects, not mentioned in other artic- les," should be Charged as " Conduct to the prejudice of good order aud luiht. ry discipline," Arraignment. The following is the form of arraignment: The accused standing, the charge and specifications, should be read to him by the Judge Advocate, who then should say : " You hive beard the charge and specifications preferred against . you. What say you to the (1st) specification— guilty, or not guilty? What say you to the charge— guilty or not guilty?" The pleading should be to the specifications in their order, and lastly to the charge. (See S9th Article of War.) Evidence. When the accused has entered a plea in bar of trial, the Coyrt . should, if the plea is prima facie tenable, receive evidence of the l facts therein stated, and if the plea be found valid, should postpone further consideration of the case and report its decision to the con- vening authority. When the accused has plead guilty, and, with no evidence taken, has made a statement to the Court inconsistent with his plea, the statement and plea should be considered together, and if guilt is not conclusively admitted, the Court should direct the entry of a plea o not guilty and proceed with the trial on its merits. In all cases subject to a discretionary punishment, a full know- ledge of the circumstances attending the olVcnse is essential for the information of t lie reviewing authority, and to an enlightened exercise of the discretion of the Court in measuring the punishment — except where the specification issodescriptive, as to disclose all the circum- stances of mitigation or aggravation which accompanied the offense. When the Court takes evidence after a plea of "guilty,'.' the accused may MOSS -examine the witnesses, and he may produce 12 evidence to rebut their testimony, and evidence as to character, and may address the Court in extenuation of the offense or in mitigation of punishment. The best attainable evidence should always be adduced, and should be confined to the allegations at issue. Hearsay testimony is inadmissible; as also are opinion* of wit- nesses, except upon questions where wilnesses are called to testify as experts, and the fact that they are such, clearly shown. In allegations of drunkenness, witnesses, in other respects com- petent, can give their opinion and belief as to the state of sobriety of t he accused at the times specified. Documentary evidence is only admissible when its authenticity has been established by sworn testimony, or under the seal of a court of record. When original documents are introduced, and are of such a cha- racter that the originals cannot lie retained, copies, certiiied as cor- rect by the Judge Advocate, may be attached to the record. When transcripts from the records of any of the Executive Depart- ments of the Government are used, they should lie certified to by the chief officer of the bureau in which the originals are riled, and the authenticity of the certification verified under the seal of the Depart- ment, b)' the Secretary thereof. The entry on the descriptive list of a soldier, that he has deserted, is not proof of the offense, but merely evidence that he has been charged with its commission. Courts- .Martial are governed by the Common Law Rules of Evidence, except where such rules have been modified by Acts of Congress. As members of Courts-Martial cannot, however, be expected to be familiar with all the rules governing the admission of testimony, it is at all times advisable to permit the accused party the utmost lati- tude in submitting his defence, though not, of course, to the extent of permitting heresay testimony to be introduced. ( See General Court- Martial Order* No. 32, War Department, October 31, 1872.) Examination of Witnesses. After a witness has been sworn, the first question should be as to his own name and rank, and the second so framed as to elicit an answer embracing the recognition of the accused, including rank, company, regiment, &c. The third in such form that the answer 13 may show that the witness has been so placed as to have knowledge of the circumstances set forth in the pleadings. The fourth and subsequent interrogatories to he framed so as to elicit all the facts material to the nutter at issue. Care should lie taken in the direct examination to prove, as nearly as possible, t lie averments of time and place laid down in the specifications. Leading questions, or such as, from their construction, plainly suggest to the witness the desired answer, are not admissible in an examination -in-chief. Tins rule, however, admits of exceptions. As, for instance, when a witmss appeal's to be hostile to the party who produces him; when he is unwilling to give his testimony, or where, from the situation of the witness as regards the case, his interest is adverse to the party calling him. In all these cases leading questions may be put in the direct examination. Leading questions may be addressed to a wit- ness in cross examination in all cases, with a single exception. "When a witness undergoing cross-examination, manifests unmis- takeable hostility to the parly who produces him, or bias in favor of the party cross-examining him, the Court may prohibit leading ques- tions. In the trial of a case, the Court should usually defer questioning a witness until after his examination by the Judge Advocate and the accused, has been completed. Such questions should be for the purpose of clearing doubts in the minds of members, or of recon- ciling discrepancies. The cross-examination should be confined to testimony elicited in the examination-in-chief, and not run into a general defense involv- ing new matter. When facts are to be elicited from witnesses for the prosecution, advantageous to the accused, such witnesses can be recalled by the defense for that purpose. Re-examination is only for the purpose ol explaining any new facts that may come out in the cross-examination, and should, as a general rule, be confined to this. Witnesses may be recalled by the Court at any stage in the pro- ceedings, lor such examination as may be deemed necessary, in which case both parties must be present. The Court may also call before it, witnesses not summoned by either the prosecution or defense. Alter a witness has given his evidence in full, it should he read over to him, that he ma}' see whether it has been recorded as ho gave it, and that he may make corrections, if necessary. 14 - If u witness desires to make corrections after hearing his testimony . read, his statement in explanation should he recorded — changes in the testimony as originally given should not he permitted — as thereby the benefit derived from cross-examination might be lost. Findings. When the proof adduced sustains the pleadings in a partial form only, the Court should acquit of the unproven portion in express terms ; and where the alleged date and place of offence is found to be erroneous, the proper corrections should be made in the findings. A Court cannot in its finding, legally substitute a finding under the 62d Article of War for any other — when the specification and testimony sustain the particular article under which the specification is laid. It is only when the proof under the specification does not sustain . the charge, that the Court may, in its discretion, substitute the ; charge of " Conduct to the prejudice of good order and military dis- . cipline." Sentence. The following numbered Articles of War are mandatory as to the I Bentence to be adjudged for their violation ; Articles (5, 8, 13, 14, 15, 17, 18, 26, 38, 57, 61, 65, and section 1343, Revised Statutes. Any other than the prescribed sentence would be illegal. The legal punishment which may be inflicted by sentence of a Court-Martial will be found under paragraph 895, Army Regulations. In cases of acquittal, and those in which tlie sentences adjudge for- feiture only, the President of the Court will in writing notify the Commanding Officer of the prisoner, that there is no longer any necessity for keeping the man in confinement. (See Department General Orders No. 18, October 4, 1878, and paragraph 2, Department General Orders No. 10, August 1, 1879.) Recokd. All orders which have been issued, modifying the detail of a Court, after its original organization, should be included in the record of every case. The entire proceedings of the Court in each case should be fully set forth in the record. All orders, motions, or rulings of the Court itself — all motions, propositions, objections, arguments, statements, &c, of the Judge Advocate and the accused — the entire testimony o r each witness, given in his own language — and, indeed, every feature of the proceedings material to a complete history of the case, and to a correct understanding of every point of the same by the' reviewing authority— should be recorded at length. The record of proceedings, and the final defense of the accused, should lie written upon Legal Cap paper of uniform size. The proceedings in each completed case should be immediately signed by the President and Judge Advocate. Recommendations to clemency shou d not be placed in connection with the sentence, but should be appended to the record. All documentary evidence submitted to the Court must be at- tached to the record, lettered in the order of submission, as " A," r "B,"tfcc. . The hour at which the Court meets and adjourns each day should be stated in the record, in order that it miy be determined by the re- viewing authority, whether the Court sit during leg d hours, and the' record of the close of each day's proceedings authenticated by the sign Lture of the Judge Advocate. The record should show that the accused had an opportunity offered him to cross-examine the witnesses for the prosecution. When an interpreter is necessary, the record must show that he was duly sworn, in open C mil, to faithfully perform such duties. If a reporter or clerk is appointed by proper authority, according to existing law and orders, t he record must show that he was duly sworn in open Court and in the presence of the accused, faithfully to perforin his duty and record the proceedings of, and testimony to be taken, before the Court, in the particular case. ' The. attention of Courts-Martial is invited, in this connection, to the published decisions of the Judge Advocate General of the Army, under the title of '* Court- Martial — Finding — and Record." In forwarding records of trial to Department Headquarters, Judge Advocates of General Courts- Martial will accompany them with the •original charges upon which trial was had. (See General Orders JVtf. 75, Department of DaJcuta, J¥ov. 14, lbll ) Witnesses. To secure the attendance of necessary and material witnesses be- fore a General Court-Martial, the Judge Advocate should usually proceed as follows : 1st. If the witness is an enlisted man, and stationed in the par- 16 ticular Department, the summons should be addressed to his Post Commander, by whom an order should then be issued for compliance therewith. 2d If the desired witness is an officer so stationed, the summons Bhould be sent to him through his Post Commander, by whom an order should also be issued to enable him to attend, but in military emergencies, the Post Commander may, in either of these cases, first refer the matter to Department Headquarters. 3d. The testimony of military witnesses without the particular Department should, except in capital cases, he taken by deposition, unless the Judge x\dvocatc is prepared to certify that "under the peculiar circumstances of the case, and to administer justice, it is not practicable to take the desired testimony by deposition under the 91st Article of War." In such case, the summons and application of the Judge Advocate thus certified will be sent through Depart- ment Headquarters. 4th. The testimony of citizens residing beyond the limits of the State or Territory where a court is convened, should, except in capital cases, be taken by deposition when practicable, to save expense to the Government. In order to subpcena a citizen witness, it must be made to appear to the satisfaction of the Court, that his testimony is " material and necessary," and the fact entered on the record.* Duplicate subpienas should then be sent to the nearest Post Com- mander for service, if the witness resides within the Department, or else to Department Headquarters, unless otherwise specially directed by the Department Commander. Service is made, under the laws of the United States, by deliver- ing the subpoena to the witness, and proof of service, by returning the duplicate original to the Judge Advocate, with an affidavit en- dorsed, to the effect, that on such a day, date, and place, the affiant *It usually happens that a Judge Advocate receives the "charge and specifics* tions," (which stand in place of an indictment in the Civil Courts.) prior to the assembling of the Court: and that, to prevent delay in the trial, it becomes neces- sary to summon or subpoena the military or civilian witnesses, whose names are attached. In such case the subpoena (in duplicate) for the citizen witness may be issued, pro foima, as above indicated— Without, of necessity, waiting for the Court to as- semble; but in the event of the witness not Obeying it, the Judge Advocate, upon moving for a writ of attachment, must show to the Court additionally, and have It entered on the record— "Ma; the witnas is a material and neressary one." 17 person, tlh/ servedthe within named witness, by delivering to him, a subpoena, of which the within is a complete copy. Such affidavit can he taken in the manner provided by paragraph 1031, Army Regulations. Any person, instructed by the Judge Advocate or Post Commander, can serve the subpoena ; but service by mail is not a legal service. Should the witness fail to appear on due and reasonable notice, the .Indue Advocate lias, by the provisions of section 12<»2, Revised Statutes, power to issue like process, to compel any witness to appear and testify, as the Courts of criminal jurisdiction within the State, Territory or District where such Court may lie convened. This power includes also the power to execute such process through some officer, who shall lie specially charged with its execution. (12 Vol. Opinions I'. 8. Attorney* General, <>f L868, p. 581.) The .Indue Advocate should, therefore, present and have attached to the record, and therein noted, the duplicate subpoen;i and affidavit of service, and formally move t lie Court for a writ of attachment against the contumacious witness. If the motion is granted, the record should show it ; and the Judge Advocate should then apply to the Department Commander for the name of some military officer to serve the process, and formally direct the writ of attachment to him, and attach thereto a certified copy of the order conveningthe Court, and copies also of the original subpoena and charges and specifications. The Post Commander will thereupon furnish the officer a sufficient force for the execution of the process* whenever such force shall he actually required. ♦Tin- Following forma should tic used : (Subpana ) General Court-Martial Rooms. (Station of Court.) THE PRESIDENT OP THE UNITED STATES OF AMERICA: Tof < i K KKTINO : Pursuant to the provisions of Section 1208, Revised Statutes of the tinted stales, you are hereby required to be and appear, in your own proper person, on the day of 18..., at ...o'clock in tin- noon, before a General Courl-Martlal of the United States, convened at said by virtue ,,i Special Orders Number .. , of 18. ..., from the Headquarters of the Department of .totestifj and give evidence :iii thai you may know concerning the pending case then and there to be tried, of the United states IS If the witness resides without the limits of the Department, the Judge Advocate should transmit the writ of attachment, with its. annexed certified copies of orders convening Court, subpoena, and charges, to these Headquarters, properly signed and tilled in, except as to the name of the olticer who may be subsequently designated to serve the writ. versus /accused of under the laws of the United States, and have yon then and there this precept. Witness : ( Same of Presiding Offlier.) President of said Court, this day of is ( Xame) (Rank) (f Insert name and address of witness.) Judge Advocate. (Process of Attachment ) THE PRESIDENT OF Tar. UNITED S i'ATES OF AMERICA: To Stationed at Greeting , Whereas, a General Court-Martial of the United States was duly convened at on the ... day of 18 , pursuant to Special Ordeis No of is , from Headquarters a copy of which said order is hereto annexed marked " A," and Whereas, on the day of 18...., at . . ... me said General Court-Martial having been first duly sworn .of the United States Army, was duly arraigned and his trial pioceeded with on a certain charge, instituted at the prosecution of the United States, for the offense of under the laws of the United States, a copy of which is hereto annexed, marked "R," and Whereas, one* , of in the was, on the day of IS. .^per- sonally served with a subpoena (a duplicate of which is hereto annexed, marked "C,") directing him to appear and testify in said cause at the time and place therein commanded; and Whereas, the said" did, on the... day of 18 , fail and negiect to appear before said Court or testify in said cause, as required by said subpoena, and still fails and neglects to appea; or testify in said cause, he being a necessary and material witness theiein, and no just excuse has beeu offered for such neglect: . Now THEREFORE, under and by virtue of the provisions of the l','02d section of pie Revised Statutes of the United states, yon are hereby commanded that yjou take the said" wherever he may be found within the United States, and him safely keep, and bring you his body without delay before the said General Court-Martial convened at said Fort and of which United States Army, is i resident, at the Court Room thereof on the — day of ,18...., at o'clock in the forenoon, at the opening of said Court, to then and there test if \ in the said cause of the United states ver- (1 in In executing such process, it is lawful to use only just the neces- sary amount of force to bring the witness according 'o its tenor. If, in executing this legal process, the officer should be served v iili a writ of habeas corpus from any State Court (or btate Judge) for the production of the witness, it will he his duty to endorse and re- turn such writ, respectfully informing the Court (or Judge) that " he "holds the within named prisoner pursuant to the writ of amen- dment, of which a copy, with accompanying orders convening " Court, subpoena, and charges, are annexed, and that he is dili- " gently and in good faith engaged in executing said writ of at- " tachment according to its commands. That he respectfully, u submits for the inspection of the Court, (or Judge) the original process under which he is acting: hut, that as he holds the pris- f'oner under and by color of the authority of the United States, " respectfully denies the jurisdiction of the Honorable Court, (or "Judge) to proceed further in the premises, but requests the dis- "missalof the writ of habeas corpus for such cause, and invites "attention to the decisions of the Supreme Court of the United " States on this subject." ( Vide : Ableman vs. Booth, 21, Howard's U. S. lop. p. 506,) ( Vidi : l\ S. vs. Tarble, 13 Wallace's U. 8. Rep. p. oT.7,) promulgated in General Orders No. 16, War Department, Adjutant 0' nr r/ " ntumm tovs wiln 20 the prisoner produced with the orders or process under which he may be held. 5th. Depositions of witnesses cannot lie taken nor read in evi- dence where military offenders are charged with t lie violation of an Article of War, the penalty for which, may be death. In time of peace the crime of desertion is not a capital one. In order to ascertain as to the competency of a witness, the oppo- site party, whether Judge Advocate or accused, is cut [tied, on request, to examine him upon the subject before he is examined in chief. This is termed an examinitaion on the voir dire; but if the incom- petency appear at any period during the trial, the Court will give the opposite party the benefit of it, by ruling, on motion, not to con- sider the testimony of the witness. His competency, when thus impeached on the voir dire, may how- ever he restored by cross examination, by the party calling him, or by introducing other evidence thereto. All this must become matter of record. The following oath should be used on the voir dire : " You do solemnly swear that you will true answers make to such '/"< 81 lions us may be here put to you, touching your competency to nerve as a witness, in this cause. £k> help you (Jod." "The duties devolved upon officers appointed to sit as members of Courts-Martial, are of the most grave and important character, and that these duties may be discharged with justice and propriety, it is incumbent on all officers to apply themselves diligently to the ac- quirement of a competent knowledge of Military Law, and to make themselves perfectly acquainted with all orders and regulations, and with the practice of Military Courts." (Order JS'<>. 23, A. G. 0., MayS, 1830.) FORMS OF PLEADINGS IN CASES OF ENLISTED MEN. Charge and Specification Preferred against Private A. — B. — , Company , ....Regiment U. S. Cavalry. CHARGE.—" Violation of the 16th Article of War." Specification. — " In that he, Private A. — 7?. — , Company. . . ., .... Regiment U. S. Cavalry, did sell a certain quantity of aimnu- 21 nition delivered out to him for use, valued at This at on or about the day of IS...." (Or the specification should allege that the accused "did willfully waste,'" or "did through neglect waste," &c, as the facts in the case may be. It should not he alleged in a specification, that the accused did sell, or willfully, or through neglect waste, &c. This remark applies to specifications laid under all Articles of War, which describe several distinct offences.) Charge.— " Violation of the 17th Article of War." Specification,.—" In that he, Private A. — 7?.—, Company , Regiment U. S. Cavalry, did, through neglect, lose the gov- ernment horse which had been entrusted to his care; or, did, through neglect, spoil the government horse, &c; or, did, through neglect, lose the clothing (or arms, or accoutre- ments) which had been issued to him. This at on or about the day of 18. . . ." CHARGE.—" Violation of the 21st Article of War." Specification. — " In that he, Private A — B. — , Company , Regiment U. S. Cavalry, did, with his fist, strike his superior officer, Lieutenant 0. — D. — , Regiment U. S. Cavalry, the said Lieutenaut C— D. — being at the lime in the execu- tion of his office ; or, did draw a revolver and threaten to shoot, etc.; or, did lift up a sword (or musket, or club) and threaten to strike, etc.; or, having been commanded by his superior officer, Lieutenant C. — D. — , Regiment U. S. Cavalry, in the execution of his office, to did disobey said order. This at , ou or about the. . . .day of IS...." Chakok.—" Violation of the 22d Article of War." 22 Specification. — " In that he, Private .1. — B. — , Company . . ., Regiment U. S. Cavalry, did begin (or excite, or cause) a mutiny against lawful military authority, by [here set forth the acta of the accused); or, did join with Privates E. — F. — , 0. — //. — and /. — K. — , all of t oinpany . . . . , .... kcginient U. S. Cavalry, in a mutiny against lawful military authority, and did, (here set forth the acta of tlie accused). This at on or about the dav of IS. . .." Charge.— " Violation of the 32d Article of War." Specif cation. — "In that he, Private .1. — />. — , Company Regiment U. IS. Cavalry, did absent himself from his detach- ment, without leave from his Commanding Oflicer, from , until This at , on or about the day of , IS. . .." Chakge.—" Violation of the 33d Article of War." Specification. — •' In that he, Private A. — B. — , Company , .... Regiment U. S. Cavalry, did fail to repair to the place ap- pointed by bis Commanding Officer for dress parade, (or other rendezvous,) not having been prevented by sickness or other necessity, nor excused by proper authority. This at on or about the day of , 18. . .." Charge.— " Violation of the 3bth Article of War." Specification. — " In that he, Private A. — B. — , Company , Regiment U. S. Cavalry, having been regularly mounted, and on duty as a member of the post guard, was found drunk, or, being on duty with a detachment escorting Major , a Paymaster in the U. S. Arm}', was found drunk. This at , on or about the day of IS " CHARGE.— " Violation of the 39th Article of War." Specification. — "In this, that he, Private .1. — B. — , Company 23 Regiment U. S. Infantry, having been regularly posted as a sentinel on post N , was found asleep on his post, or, did leave his post without having been regularly relieved. This at on or about tlie day of ,18 " CHARGE.— " Violation of the 40th Article of War." Specification. — "In that lie, Private A. — B. — , Company. .. ,, Regiment U. 8. Infantry, having been regularly mounted as a member of the post guard, did quit his guard without leave from his superior officer, and without urgent necessity, or, did quit his platoon or division. This at , on or about the da}- of , 18 " Charge. — " Desertion." Specification. — " In that he, Private A — B. — , Company , .... Regiment U. 8. Infantry, having been duly enlisted as a sol? dier in the service of the United States, at on the day of IS , did desert said service, on or about the day of 18. . . ., at or near , and did remain absent ira desertion until he was apprehended (or "surrendered himself") at on the day of IS...." Ciiahge.— " Violation of the 60th Article of War." Specification. — "In this, that he, Private A. — B. — , Company.' , . . . .Regiment U. S. Cavalry, did steal one horse, of the value of , the property of the United States, and furnished for use in the military service thereof. This at . . . , on or about the day of 1C t) ....•••• Io . . . . or, In this, that he, Private A. — B. — , Company , Regiment U. S. Cavalry, did steal the following described property of the United States, furnished for use in the military service thereof. (/Arc net forth an iinni-ed description of the 24 property alleged to be stolen.) This at , on or about the dav of 18. . . ." Change. — " Conduct to the prejudice of good order and military dis- cipline." Specification. — " In that he, Private A. — B. — , Company. . . ., Regiment U. S. Cavalry, having been ordered by his superior non-commissioned officer, , the said non-commissioned officer being at the time in the execu- tion of his office, to , did willfully disobey said order. This at on or about the day of IS .... " (Atcticle 62. — All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the fore- going articles of war, are to be taken cognizance of by a general, or a regimental, garrison or field officers' court-martial, according to the nature and degree of the offense, and punished at the discretion of such court.) The foregoing forms, applicable to a majority of the cases brought before Courts-Martial, afford, it is believed, a basis for all pleadings under the Aiticles of War. It is to be borne in mind, that the offense charged, must be described in accurate language, "suffi- ciently clear to inform the accused of the military offense for which he is to be tried, and to enable lam to prepare his defense." (Attorney General Wirt, 1 opinions, 286.) By Command op Bkigadieu Genekal Teuky: GEO. 1>. HAGGLES, Assistant Adjutant General. official: Major and Judge Advocate, U. 8. Army. Cjaxflord === PAMPHLET BINDER Syracuse, N. Y. Stockton, Calif. ^ SOUTHERN REGIONAL LIBRARY FACI A A 000 222 302