1: I; Gin or A MANUAL FOR COURTS-MARTIAL COURTS OF INQUIRY AND OF OTHER PROCEDURE UNDER MILITARY LAW REVISED IN THE JUDGE ADVOCATE GENERALS OFFICE AND PUBLISHED BY AUTHORITY OF THE SECRETARY OF WAA CORRECTED TO AUGUST 1, 1918 (CHANGES, NOS. 1 TO 4) WASHINGTON GOVERNMENT PRINTING OFFICE 1918 * \Y NT, Document Office of the Judge Advocate General £' War Department, Office of the Chief of Staff, Washington, November 29, 1916. The Manual for Courts-Martial, Courts of Inquiry, and of other Procedure under Military Lavr, prepared by direction of the Secre- tary of War in the Office of the Judge Advocate General for use in the Army of the United States, is approved, and will be published for the information and guidance of all concerned, including all courts-martial in the National Guard of the several States and Ter- ritories and the District of Columbia not in the service of the United States, in so far as applicable, under section 102 of the national- defense act f approved June 3, 1916. The provisions of this Manual will be in force and effect on and after March 1, 1017. By order of the Secretary of War : H. L. Scott, Major General, Chief of Staff. TABLE OF CONTENTS. Page. Introduction 1X Chapter. I. Military jurisdiction Section I. Source and kinds of military jurisdiction 1 Section II. Exercise of military jurisdiction 2 Section III. Persons subject to military law 2 Chapter II. Courts-martial— Classification— Composition 5 Section. I. Classification 5 Section II. Composition 6 Chapter III. Courts-martial— By whom appointed 9 Section I. General courts-martial 9 Section II. Special courts-martial 12 Section III. Summary courts-martial 13 Section IV. Judge advocate 15 Chapter IV. Courts-martial— Jurisdiction 17 Section I. Jurisdiction in general 17 Section II. Jurisdiction of general courts-martial 21 Section III. Jurisdiction of special courts-martial 22 Section IV. Jurisdiction of summary courts-martial 22 Section V. Jurisdiction of other military tribunals 23 Chapter V. Courts-niartial— Procedure prior to trial 25 Section I. Arrest and confinement 25 Section II. Arrest of deserters by civil authorities 28 Chapter VI. Courts-martial— Procedure prior to trial (continued) 31 Section I. Preparation of charges 31 Section II. Action upon charges 40 Chapter VII. Courts-martial— Organization 43 Section I. The members 44 Section II. The judge advocate 47 Section III. Assistant judge advocate 51 Section IV. Counsel 51 Section V. Reporter 52 Section VI. Interpreter 55 Chapter VIII. Courts-martial— Organization (continued) 57 Section I. Challenges 57 Section II. Oaths 61 Section III. Continuances 63 Section IV. Completion of organization 64 Chapter IX. Courts-martial— Procedure during trial 65 Section I. Arraignment Section II. Pleas. (if. Section III. Refusal to plead 73 Section IV. Motions J_4 Chapter X. Courts-martial— Witnesses and depositions 77 Section I. Attendance of witnesses 7S Section II. Depositions °4 Section III. Fees, mileage, and expenses of witnesses 88 v VI CONTENTS. Pago. Chapter X I. Courts-martial- Evidence 91 Section I. Introductory pro\ ifdona 93 mstantial evidence 99 imonial evidence 101 m IV. Documents 1 19 d V. Examination of witnesses 122 Section VI. Credibility of witnesses L25 a VII. Depositions and former testimony 127 Lon VIII. Presumptions 130 a IX. Judicial notice 137 Chapter XI r. CourtB-martial— Concluding incidents of the trial 139 ion I. Statements and arguments 140 Section II. Findings 141 ion HI. l'ri'\ious convictions 14 1 ■uces 145 Chapter XI IT. Courts-martial — Punishments 151 Section I. Disciplinary power of commanding officer 151 Section II. Confinement in a penitentiary L53 Section III. War Department policy regarding punishments 156 Section IV. Prohibited punishments 159 Section V. Death — Cowardice — Fraud 100 Section VI. Maximum limits 1(J1 Chapter XIV. Courts-martial — Procedure of special and summary courts and procedure on revision 171 Section I. Special courts-martial 171 Section II. Summary courts-martial 171 Section III. Procedure on revision 1 72 Chapter XV. Courts-martial — Records of trial 173 Section I. General courts-martial 173 Section II. Special courts-martial 177 Section III. Summary courts-martial 178 Section IV. Correction of records of trial 178 Section V. Disposition of records of trial 179 Section VI. Loss of records of trial ] SO Chapter XVI. Courts-martial — Action by appointing or superior authority 181 Section I. Action on the proceedings L82 Section II. Action after promulgation of sentence 190 Chapter XVII. Punitive articles 193 Section I. Enlistment — Muster — Returns 196 Section II. Desertion — Absence without leave. 201 Section III. Disrespect — Insubordination — Mutiny Section IV. Arrest — Confinement 218 Section V. War offenses 225 Section A I. \Ii-< ellaneous crimes and offenses 237 Chapter XVIII. Courts of inquiry Section I. Constitution L's? n II. Jurisdiction 288 m III. Composition 288 ion IV. Powers 289 Section V. Procedure 290 Section VI. Record* 292 CONTENTS. VII Page. Chapter XIX. Habeas corpus 293 Section I. Purpose of the writ 293 Section II. "Where restraint is by the United States 293 Section III. Return to writ issued by State court 294 Section IV. Return to writ issued by United States court 295 Section V. Writ issued in the Philippine Islands 295 Chapter XX. Miscellaneous and transitory provisions 297 Section I. Miscellaneous provisions 297 Section II. Transitory provision 3 °1 Appendices: 1. The Articles of War 305 2. System of courts-martial for National Guard not in the service of the United States 331 2a. Form of order appointing a General court-martial 332a ■2\>. Form of order appointing a Special court-martial 332b 3. Charge sheel 333 4. Forms for charges 335 4a. Forms for synopses of convictions by court-martial (lor entry in service record) 352b 5. Suggestions for trial judge advocates 353 6. Form for record— General court-martial and revision proceedings 357 7. Form for record — Special court-martial 365 8. Form for record— Summary court-martial 367 9. Forms for sentences 9a. Forms for synopses of sentences 370a 10. Forms lor action by reviewing authority 371 11. Court-martial orders 375 (a) General court-martial ; j~5 (b) Special court-martial 376 12. Form for interrogatories and deposition 379 13. Subpoena for civilian witness 383 14. Warrant of attachment 387 ] 5. Returns and briefs in habeas corpus proceedings 389 16. Voucher (Form 338): Civilian witness not in Government employ.. . 397 17. Voucher (Form 350A): Civilian witness in Government employ 401 18. Voucher (Form 339): Personal services, reporter 405 1!). Reporl of inquesl 409 20. General I <• . War Department, 1918, and procedure there- under 41 1 INTRODUCTION TO THE FIRST EDITION. This Manual introduces and interprets to the Military Establish- ment the revised Articles of War which become effective March 1, 1917. The revision supersedes the existing articles, sometimes desig- nated the Code of 1874, and repeals all other laws and parts of laws inconsistent therewith. It will facilitate an understanding of the scope and effect of the revision to refer to the history and develop- ment of the amended Code of 1874, indicate briefly its most serious defects, and summarize the principal changes introduced by the revision. HISTORY OF UNITED STATES ARTICLES OF WAR PRIOR TO 191G. Passing over the earlier enactments of the American Colonies of Articles of War for the government of their respective forces, ex- amples of which are found in the articles adopted by the Provisional Congress of Massachusetts Bay, April 5, 1775 (Am. Archives, 4th series, vol. 1, p. 1350), and the similar articles adopted in May and June of that year by the Provincial Assemblies of Connecticut and Ehode Island and the Congress of New Hampshire (idem, vol. 2, pp. 565, 1153, 1180), we come (a) to the first American articles enacted by the Second Continental Congress June 30, 1775, and copied largely from the British Code of 1765 and the Massachusetts Code; (b) the Code of 1776, an enlargement and modification of the Code of 1775; and (c) the supplemental Code of 1786, regulating the composition of courts-martial and generally the administration of military justice. The articles in force on the adoption of the Constitution of the United States were, by act of the First Congress, made to apply to the then existing Army " so far as the same are ap- plicable" and were continued in force by successive enactments until April 10, 1806, when, by act of Congress of that date, revised articles, adapted to the changed form of government, were enacted, superseding all other enactments on the same subject. Thus the Oxle of 1806 was, in effect, a reenactment of the articles in force during and immediately following the period of the Eevolutionary War, with only such modifications as were necessary to adapt them to the Constitution of the United States. It comprised 101 articles, with an additional provision relating to spies. During the War of 1812 four of the articles of this code were amended, during the Seminole wars three articles were amended and one new article added, and during the Civil War seventeen articles were amended and eight X Mi : COURTS-MABTIAL. new article- added. All of these new articles and amendments wen} gathered int<> the restatement of the articles which appears in the Revised Statutes <»f L874, making a code of 128 articles, with the additional provision Delating to spies. Between tluu year and 1912, when this revision was submitted to Congress, the more important amendments have been the summary court and maximum punishment of L890; the repeal of articles 80 and 110 in 1898; (he repeal of article L23 and the amendment of articles 122 and L24 in l!>10. DEFECTS OF ARTICLES PRIOR TO 1916 REVISION. The more serious defects of the Code of 1874 were those incident to its development by compilation from a now obsolete and replaced foreign code, and by piecemeal amendment made during periods of war and under the stress of war conditions. Eighty-seven articles of the Code of 1806 survived in the amended Code of 187-i without change or with only minor changes of style, and most of the remain- ing articles of that code without substantial change, with the result thai the latter code was unscientific in its arrangement and contained many provisions either wholly obsolete or illy adapted to present sen ice conditions. We may cite as examples illustrating its archaic character the following of its provisions: The fifty-fourth and fifty-fifth articles prohibited any kind of riot t<> the disquieting of "citizens of the United States," and article 59 made mandatory the turning over to a civil magistrate of officers and soldiers accused of an offense against the person or property of any " citizen of the United States," but only " upon application duly made by or in behalf of the party injured," ignoring the more modern doctrine that all persons residing within the United States are entitled to the equal protection of the laws, and that crimes are now punished, not at the instance of an individual but at the instance of the public. Article 126 regulated administration upon the effects of decease,] soldiers and devolved the duties incident thereto upon the commanding officer of the troop, battery, or company to which the deceased soldier belonged, but made no provision for similar arising among the large class of soldiers who, under the present- day organization, do not belong to troops, batteries, or companies; and similar instances might be multiplied indefinitely. I M r<;i; r.\N I < HANGE8 IN REVISION. The limits assignable to this introduction permit only the follow- ing brief summary of the more important changes introduced by the I articles: I. Certain provisionf of the Revised Statutes and of the Statutes at Large in the nature of Articles of War, and proper for this reason to be incorporated in a military code, are reenacted in their proper INTRODUCTION. XI places in the revised articles, and certain other statutes relating to the procedure and practice of the criminal courts of the United States are made the basis of new articles. Examples of legislation incor- porated and of new articles suggested are found in revised artielea 2, 4, 7, 8, 22, 23, 25, 30, 34, 36, 37, 38, 42, 45, 48, 52, 80, 82, 106, 107, 108, 112, 114, 117, 118, and 11 s>. 2. Articles 1, 10, 11. 3G, 37, 52, 53, 76, 87, and 101 of the Code of 1874, either wholly obsolete or embracing only matters properly within the field of Army Regulations, have been dropped. 3. Related provisions have been brought together under five sepa- rate headings, and where subheads would serve a useful purpose they have been employed to complete the classification. 4. Provisions relating to the same subject-matter have been con- solidated into a single article. Examples of such consolidation may bs found in revised article 48, which reenacts with modifications the substantial provisions of four articles of the Code of 1874 and one section of the Revised Statutes, all relating to the confirmation of sentences of courts-martial; and in revised article 61, which re- enacts in brief form the material provisions of six of the existing articles of that code relating to unauthorized absences. 5. The authority to convene general courts-martial has been ex- tended to include " the commanding officer of any district or of any force or body of troops " when empowered by the President, thus providing for the case of expeditionary forces not the equivalent of a brigade or higher unit, and other emergent services, and permitting general court-martial jurisdictions to be multiplied as the exigencies of the service may require. (Art. 8.) 6. The jurisdiction of the general court-martial is made concur- rent with that of the military commission and other war tribunals in the trial of offenses against the laws of war, and further extended to include the capital offenses of murder and rape when committed in time of peace at places outside the geographical limits of the States of the Union and the District of Columbia. (Arts. 12, 15, and 92.) 7. Authority is granted for the detail of one or more assistant trial judge advocates few each general court-martial, with power to act for the judge advocate, thus largely increasing the capacity of these courts in the disposition of cases. (Arts. 11 and 116.) 8. The provision of the Code of 1874 making regular officers incom- petent to sit on courts-martial for the trial of officers and soldiers of other forces is abolished, and all distinctions as to eligibility of officers of the several forces for the performance of court-martial duty is removed. (Art. 4.) 9. A disciplinary court, intermediate between the general and stmv mary court, with adequate power to impose disciplinary punishments but without the power to adjudge dishonorable discharge, is provided XII MANUAL FOR COURTS-MARTIAL. for th( trial of offenses where the retention of the offender with his command, to be disciplined rather than his dishonorable discharge, is contemplated, leaving the general court-martial with its extended jurisdiction to be resorted to in grave cases calling for discipline, dis- honorable discharge, or prolonged detention in confinement with or without dishonorable discharge, and the summary court for the trial of minor offenses calling for light punishments of confinement and forfeiture. LO. The power to prescribe the procedure, including modes of proof, in cases before courts-martial and other military tribunals has been expressly delegated to the President. (Art. 38.) 11. The statute of limitations of the Code of 1874 (art. 103, as amended by act of Apr. 11, 1890) fixed a uniform period of two years of liability to trial and punishment by general court-martial (not expressly excepting any capital offenses), to be reckoned from the da to of the commission of the offense to the date of the issuing of the order for trial, except in case of peace desertion, when the period was required to be reckoned from the date of expiration of enlistment from which the soldier deserted to the date of his arraignment. Xo period of limitation was prescribed in the case of inferior courts. The new military statute of limitations (art. 39) expressly excepts from its operation the capital offenses of desertion committed in time of war, mutiny; and murder, fixes the period of limitation at three years for the graver common law and statutory felonies denounced and punished in revised articles 93 and 94, conforming to the rule governing Federal civil courts with concurrent jurisdiction of these offenses; and the same period for the offense of desertion in time of peace, a study of statistics having shown that few, if any, deserters of this class are arrested after three years from date of desertion. The two-year period of limitation prescribed by the Code of 1874 is re- tained in the revised articles for all other offenses than those above named, and the uniform rule is established that all these periods shall be reckoned from the date of commission of the offense to the date of arraignment. The new statute covers trials by any court-martial. 12. The right of persons in the military service to remove to a Federal court all suits and prosecutions brought against them in a State court for acts done under the color of military status is secured by article 117 of the revised code. L8. The rigid of the reviewing or confirming authority to mitigate a finding of guilty by a court-martial to a finding of guilty of any lesser included offense is conferred by articles 17 and 10 of the revised code. 1 1. The article of the Code of 1874 respecting the taking of deposi- tions (art. 91) has proved in practice unsatisfactory, in that it authorized the OSS of a deposition when the witness resided just INTRODUCTION'. XIH outside the State in which the court was in session, though perhaps only a few miles from the place of its sessions, but did not permit the use of a deposition when the witness resided in the State, even though his place of residence was remote' from the place of meeting; and further unsatisfactory in that it made no provision for the tak- ing of a deposition when a witness was about to go beyond the State, Territory, or District in which the court was sitting, or when, by reason of age, sickness, bodily infirmity, or other reasonable cause, he was unable to appear and testify in person at the place of trial. These deficiencies are supplied in article 25 of the new code, which is drawn so as to conform, in the main, to the provisions of section 863 of the Eevised Statutes regulating the taking of depositions for use in civil suits. 15. Under a provision of the Code of 1874 (art. 9G) no person might be sentenced to suffer death except by the concurrence of two- thirds of the members of a general court-martial, but it was open to a bare majority -of the court to find an accused guilty of an offense for which the death sentence was mandatory ; so that the article did not, as a matter of fact, furnish any special protection to an accused in a case of that kind, in view of the obvious duty the court had to impose the sentence required by law upon a legal conviction. In revised article 43 the requirement is imposed that two-thirds of the members of the court shall concur in the conviction of an accused of an offense for which the death penalty is made mandatory by law, as well as in the imposition of the sentence of death. The foregoing list of important changes introduced by the revised articles is by no means complete, as there has been a general recast- ing of the articles; but it embraces those to which it is desirable that the special attention of the service be invited. The complete recasting of the articles has not extended to changing language de- fective in form, but to which settled construction has assigned a definite meaning. SCOPE OF PRESENT MANUAL. The term " military law " is frequently used in a wide sense to include, not only the disciplinary, but also the administrative law of the military establishment, as, for instance, the whole range of the Army Regulations. But in distinguishing military from civil law we say that military law is the law relating to, and administered by, military courts. Military law, in this sense, concerns itself with the trial and punishment of persons subject to it. This is the dis- ciplinary aspect of the subject, and while officers, as such, must have a knowledge of military law in the broader definition, the proper functions of a court-martial manual are confined to the law of mili- tary discipline. XIV MANUAL FOR COURTS MARTIAL. Earlier manuals have functioned in this field, but they have, ui general, purported t<> be only compilations of pertinent .statutes ano regulations, thus furnishing officers and oourts-martia] with the framework of the law which they are required to administer, bu leaving them to a search of texts and authorities for the fullness oi the principles applicable to oven the most familiar and elementary questions. AVhile the present work confines itself to the disciplinary aspect of the subject, and thus makes no profession to be a manual of military law. it ia intended to cover its appropriate field as fully as is possible under the restrictive definition of a manual, and thus to place in the hands of officers a guide that shall be reasonably sufficient in all the ordinary exigencies of service. The Manual in its arrangement of subject matter follows, as far as has been found practicable, the arrangement of the new code. In scope it has been extended to include chapters on "Evidence" and • Punitive articles." In the preparation of the former chapter this office has had the assistance of Prof. Wigmore of the Northwestern University, recently commissioned a major and judge advocate in the Oflicers , Reserve Corps. Prof. Wigmore has given liberally of his time in the preparation of this chapter, has lent the authority of his name to what appears therein, and has performed a work of great value for which appreciation will be general throughout the service. In the chapter on " Punitive articles " an effort has been made to meet what is conceived to be a very urgent need in our serv- ice, namely, a statement of the essentials of proof under the more important offenses denounced and punished by the new code, for the guidance of trial judge advocates. Due to the brief interval between the enactment of the new code ami the date when the Manual had to go to the printer in order to be available for troops on foreign .station prior to the taking effect of the new code, the preparation of the Manual has necessarily been done with a haste which in a work of such importance it would have been desirable to avoid. It is hoped, however, that no fundamental errors appear therein. In using the Manual it should be borne in mind (hat over attention to technicalities represents a failure to grasp l Ik- spirit of the revision ami will lead to requests for interpretation which may usually be avoided by the application of broad principle B It is hoped that by the amplification of chapters of this Manual and tie- inelusion of new chapters on such subjects as "The law of ri< duty." -.Martial law," and "Military government M future edil may he made to embrace all that is accessary to the service at large regarding the general subject of military law. i 1, 1917. ABBREVIATIONS. A. R Army Regulations, 1913. A. W Articles of War, Code of 1916. Bishop Bishop's New Criminal Law, 8th edition. Clark Clark's Criminal Law, 2d edition. Clark and Marshall The Law of Crimes, 2d edition. Cyc Cyclopedia of Law and Procedure. Davis A Treatise on the Military Law of the United States, 2d edition. Digest Digest of Opinions of Judge Advocates General of the Army, 1912. Dudley Military Law and Procedure of Courts-Martial, 1910. Greenleaf Law of Evidence, 16th edition. R. S Revised Statutes of the United States, 1878. Thompson Law of Trials. Wharton Criminal Law, 9th edition. Wigmore Law of Evidence. Wigmore, P. C Pocket Code of Evidence. Winthrop Military Law and Precedents, 2d edition, 1896. xv The discipline and reputation of the Army arc deeply in- volved in the manner in which military courts are conducted and justice administered. The duties, therefore, that de- volve on officers appointed to sit as members of courts-mar- tial are of the most grave and important character. That these duties may be discharged with justice and propriety it is incumbent on all officers to apply themselves diligently to the acquirement of a competent knowledge of military law, to make themselves perfectly acquainted with all orders and regulations, and with the practice of military courts. — Army Kegulations, 1835, Article XXXV, paragraph 1. CHAPTEE I. MILITARY JURISDICTION. Fagot Section I : Source and kinds of military jurisdiction 1 1. Source 1 2. Kinds 1 (a) Military government 1 (b) Martial law at home 1 (c) Martial law applied to the Army 2 Id) Military law 2 Section II: Exercise of military jurisdiction 2 3. Military tribunals 2 (a) Military commissions and provost courts 2 (b) Courts-martial, general, special, and summary 2 (c) Courts of inquiry 2 Section III: Persons subject to military law 2 4. Classes enumerated 2 (a) Regular Army, National Guard, and Volunteers 3 (6) Cadets 4 (c) Marine Corps 4 (d) Medical Department of Navy serving with detached marines 4 (e) Retainers to the camp and others 4 (/") Persons serving sentence of court-martial „ 4 (<7) Army field clerks 4 (/;) Field clerks, Quartermaster Corps 4 Section I. SOURCE AND KINDS OF MILITARY JURISDICTION. « 1. Source. — The source of military jurisdiction is the Constitution, the specific provisions relating to it being found in powers granted to Congress, in the authority vested in the President, and in a pro- vision of the fifth amendment. 2. Kinds. — Military jurisdiction is of four kinds, viz: (a) Military government (the law of hostile occupation) ; that is, military power exercised by a belligerent by virture 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. (b) Martial law at home (or, as a domestic fact) ; by which is meant military power exercised in time of war, insurrection, or re- bellion in parts of the country retaining their allegiance, and over persons and things not ordinarily subjected to it. 53910°— IS 2 1 2 MANUAL FOB COUBTS-MABTIAL. (c) Maitial law applied to the Army; that is, military power extend Lug in time of war, insurrection, or rebellion over persons in the mili- tary service, as to obligations arising out of such emergency and not falling within the domain of military law, nor otherwise regulated by law. The last two divisions (h) and (c) are applications of the doctrine of necessity to a condition of war. They spring from the right of national self-preservation. - (d) Military law; which is the legal system that regulates the gov- ernment of the military establishment. It is a branch of the mn oicipal law. and in the United States derives its existence from special consti- tutional grants of power. It is both written and unwritten. The sources of written military law are the Articles of War enacted bj Congress August 29, 1016; other statutory enactments relating to the military service; the Arm}' Regulations; and general and special orders and decisions promulgated by the War Department and by department, post, and other commanders. The unwritten military law is the " custom of war," consisting of customs of service, both in and war. This Manual deals primarily with military law. Section II. EXERCISE OF MILITARY JURISDICTION. 3. Military tribunals. — Military jurisdiction is exercised through the following military tribunals: (a) Military commissions and provost courts, for the trial of offenders against the laws of war and under martial law. (b) Courts-martial — general, special, and summary — for the trial of offenders against military law. (A. W. 3.) [Note 1. — The general court-martial has concurrent jurisdiction with military commissions and provost courts to try offenders against the laws of war (A. W. 12.) Note 2. — For the authority to appoint courts-martial in the National Guard not in the service of the United States, and the jurisdiction and powers of such cuuits. Bee sections 102-108, act of June 3, 1916, 39 Stat., 208, 209; Appendix 2. post.] (c) Courts of inquiry, for the examination of transactions of or accusations or imputations against officers or soldiers. (A. W. 97.) [Notb. — Tin- composition, jurisdiction, procedure, etc., of these tribunals are treated in the succeeding chapters of this Manual.] Section III. PERSONS SUBJECT TO MILITARY LAW. 4. Classes enumerated. — The following persons are subject to the Articles of War (A. W. 2): [Notb.— Wherever tin" following words nn> used in the Articles of War or this Manual, they are t<> be construed in the sense Indicated below, unless the MILITARY JURISDICTION. S context shows that a different sense is intended, viz: (a) The word "officer" shall be construed to refer to a commissioned officer; (b) the word "soldier''' shall be construed as including a noncommissioned officer, a private, or any other enlisted man; (c) the word "company" shall be understood as including a troop or battery ; and (d) the word " battalion " shall be understood as includ- ing a squadron. (A. W. 1.)] (a) All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted, or ordered into, or to duty, or for training in the said service, from the dates they are required by the terms of the call, draft, or order to obey the same. [Note. — (a) Regular Army. — The Regular Army of the United States, includ- ing the existing organizations, shall consist of sixty-four regiments of Infantry, twenty-five regiments of Cavalry, twenty-one regiments of Field Artillery, a Coast Artillery Corps, the brigade, division, army corps, and army headquar- ters, with their detachments and troops, a General Staff Corps, an Adjutant General's Department, an Inspector General's Department, a Judge Advocate General's Department, a Quartermaster Corps, a Medical Department, a Corps of Engineers, an Ordnance Department, a Signal Corps, the officers of the Bureau of Insular Affairs, the Militia Bureau, the detached officers, the detached noncommissioned officers, the chaplains, the Regular Army Reserve, all organized as hereinafter provided, and the following as now authorized by law: The officers and enlisted men on the retired list; the additional officers; the professors, the Corps of Cadets, the general army service detachment, and detachments of Cavalry, Field Artillery, and Engineers, and the band of the United States Military Academy; the post noncommissioned staff officers; the recruiting parties, the recruit depot detachments, and unassigned recruits ; the service school detachments ; the disciplinary guards ; the disciplinary organiza- tions ; the Indian Scouts ; and such other officers and enlisted men as are now or may be hereafter provided for. (Sec. 2, act of June 3, 1916, 39 Stat., 166.) (b) Volunteers. — The volunteer forces shall be subject to the laws, orders, and regulations governing the Regular Army in so far as such laws, orders, and regulations are applicable to officers or enlisted men whose permanent retention in the military service, either on the active list or on the retired list, Is not contemplated by existing law. (Sec. 4, act of Apr. 25, 1914, 38 Stat., 347.) (c) National Guard. — The National Guard, when called as such into the service of the United States, shall, from the time they are required by the cerrns of the call to respond thereto, be subject to the laws and regulations governing the Regular Army, so far as such laws and regulations are applicable to officers and enlisted men whose permanent retention in the military service, either on the active list or on the retired list, is not contemplated by existing law. (Sec. 101, act of June 3, 1916, 39 Stat, 208.) [Note. — The militia when called into the service of the United States is also lubject to military law. (85 Stat.. 399.)] (tf) National Guard when drafted into Federal service, — Members of the National (Juard and the National Guard Reserve drafted into the military service of the United States shall, from the date of their draft, stand dis- charged from the militia, and shall from said date be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Volunteer Army. (Sec. Ill, act .of June 3, 1916, 39 Stat., 211.) (e) Officer? Reserve Corps. — Any officer who, while holding a commission in the Officers' Reserve Corps, shall be ordered to active service by the Secretary^ of War shall, from the time he shall be required by the terms of his order to* obey the same, be subject to the laws and regulations for the government of Lrmy of the Dnited States, in so far as they are applicable to officers whose permanent retention in the military service is not contemplated. (Sec. 38, act of June 3, 1916, 39 Stat., 190.) (/) The Enlisted Reserve Corps. — Any enlisted man of the Enlisted Reserve >3orps ordered to active service or for purposes of Instruction or training shall, ;rom the time he is required by tin 1 terms of the order to obey the same, be subject to the laws and regulations for the government of the Army of the United States. (Sec. 55, act of June 3, 1916, 39 Stat, 195.) ] i MANUAL FOR OOURTB-MABTIAL. (M Cad (c)0 Ld soldiers <>f the Marine Corps when detached for service witn the armies of the United States by order of the (A. W. 2.) (J) Officers and enlisted men of the Medical Department of the ring with a body of marines detached for service with the rdance with the provisions of section sixteen hundred and twenty-one of the Revised Statutes, shall, while so serving, be and articles of ^ar prescribed for the govern- or the Army in the same manner as the officers and men of the Marine Corps while so serving. (Act of Aug. 29, 1916, 39 Stat., 573.) [Note. — ("> Except as provided In (c) and (d) supra or otherwise spe- cifically provided l>y law, Hie Articles of War do not apply i" any person under the United States naval jurisdiction. (6) An officer or soldier of the Marine Corps detached Cor service with the Army may be tried by military court-martial for an offense committed against the laws f<>r the government <>f the naval service prior to his detachment and for an offense committed against the Articles of War he may be tried by a naval court-martial after such detach- ment ceases. (A. AY. 2.)] Vil retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such re- tain* rs and persons accompanying or serving with the armies of the United States in the field, both within and without the terri- torial jurisdiction of the United States though not otherwise subject to the Articles of War. [Note. — In addition to the two classes (a) "retainers to the ramp"' and (&) "persons serving with the armies of the United States in the Held" who were BUbject to military jurisdiction by A. W. 60 of the code of 180G (A. W. 63 of the revision of 1874 I, A. W. 2 of the code of 101G includes a third class,, viz, in •• persons accompanying the armies of the United States."] (/) All persons under sentence adjudged by courts-martial. (g) Army field clerks. [Note.— Hereafter headquarters clerks shall be known as Army field clerks and shall * * * be subject to the rules and Articles of War. (Sec. 1, act of Aug. 29, 1916, 39 Stat, 625.)] (h) Field clerks, Quartermaster Corps. [N( ed two hundred clerks, Quartermaster Corps, * * * shall be known as field dork-;. Quartermaster Corps, * * * and be subject to the rules and Articles of War. (Act of Aug. 29, 1916, :.. 626.)] . [Note 2. — Inmates of the Soldiers' Homo (R. S. 4824), the National Homo for Disabled Volunteer Soldiers (R. s. is:;r>), all persons admitted to treatment in I Hospital :•! Fori Bayard, New Mexico, while patients In said hos- ] ■■ of June 12, )'"»'<. 34 Stat., 255), and all persons admitted to treat- In the Army and Navy General Hospital at Hoi Springs, Arkansas, while os iii said hospital (ad of Mar. :'.. 1909, 35 Stat, 7is>. are by th< statutes Bubjecl i" the rules and articles for the governmenl of the armies of martial jurisdiction over them ha.s rarely, if ever, ed. I CHAPTER II. COURTS-MARTIAL— CLASSIFICATION— COMPOSITION. Paga Section I : Classification 5 5. Kinds 5 («) General courts-martial 5 (b) Special courts-martial 5 (c) Summary courts-martial 5 Section II: Composition 6 6. Who competent to serve 6 Exceptions — (a) Accuser or witness for prosecution 6 (6) Officers excepted by custom 6 7. Number of members 6 (a) General courts-martial 6 Reduction below quorum — Report by judge advocate 6 (b) Special courts-martial 7 Reduction below quorum 7 (c) Summary courts-martial 7 8. "Officer" defined 7 9. "In the military service of the United States " 7 (a) Officer suspended from rank 7 (6) Retired officers 7 (c) Volunteers. Officers' Reserve Corps, persons called, drafted, or ordered into service 7 10. Marine officers 8 11. No distinction between Regulars and other forces 8 12. Rank of members 8 (a) Trial by inferiors in rank 8 (6) Determination of rank among Regulars and other forces 8 13. Who may be tried 8 Section I. CLASSIFICATION. 5. Kinds. — Courts-martial shall be of three kinds (A. W. 3), viz: (a) General courts-martial; (h) Special courts-martial ; and (c) Summary courts-martial. [Note.— The classification of courts-martial adopted by the code of 1916 Is Identical with that made by the act of March l ( , 1913 (37 Statu, 721), which abolished garrison and regimental courts-martial and created special courts- martial ] 5 6 MANUAL FOR COURTS-MARTIAL. Section II. COMPOSITION. 6. Who competent to serve. — All officers in the military service of the United States, and officers of the Marine Corps when detached for c with the Army by order of the President, shall be com- t (d Berve on courts-martial for the trial of any who may lawfully he brought before such courts for trial. (A. W. 4.) Exceptions. — (a) No officer shall be eligible to sit as a member of a general <>r special court-martial when he is the accuser or a witness for the prosecution (A. W. 8, 9) ; but when there is only one officer present with a command he shall l>e the summary court-martial of that command and shall hear and determine cases brought before him (A. W. 10). [See chapter 8, sec. 1, par. 129.] (b) Chaplains, reterinarians, dental surgeons, and second lieutenants in the Quarter- master Corps are not in practice detailed as members of courts- martial. 7. Number of members. — Courts-martial shall be composed of the following number of officers (A. W. 5, 6, 7), viz: (a) General courts-martial. — Any number from 5 to 13, inclusive. A general court-martial shall not consist of less than 13 officers when that number can be convened without manifest injury to the service. (A. W. 5.) The Articles of War (A. W. 5, 6) governing the number of members which may sit upon a general or a special court-martial are merely directory to the officer appointing the court, and his de- cision as to the number which can be convened without manifest injury totheservice (within the maximum and minimum limits prescribed by law), being a matter submitted to his sound discretion, must be conclu- sive. (Martin /•. Molt. 1:2 Wheaton, 35; see also Mullan v. U. S., 140 U. S., 240.) "While a number less than five can not be organized general court-martial or proceed with a trial, they may perforin such acts as are preliminary to the organization and action of the court. than five members may adjourn from day to day, and where five are present and one of them is challenged, the remaining four may determine upon the sufficiency of the objection. A court reduced t<> four members and thereupon adjourning for an indefi- period does not dissolve itself. The appointing authority may at any time complete it by the addition of a new member or mem- bers and order il to reassemble for business. (Digest, p. 158, LXX V I'. -". i. but if any evidence has been taken before the court is reduced below five, it should be dissolved and a new one ordered. If for any reason a general court-martial is reduced below five members it will direct the judge advocate to report the facts to the convening authority and wait his orders. The report by the judge advocate will, in all cases, be made through the commanding officer COURTS-MABTIAL CLASSIFICATION COMPOSITION. r ? of tin- post, command, or station where the court is setting, who w3I indorse thereon the names of a sufficient number of available officers whom he recommends be detailed on the court to enable it to proceed, More than enough to make a quorum should be recommended where practicable in order to provide for future contingencies, and so far as can be foreseen the officers recommended should not be liable to challenge in any case to be tried. If there be no such officer or officers available, the commanding officer will so state. This report will be made by wire whenever deemed advisable in order to prevent unneces- sary delay in trying cases. Similar action will be taken before trial by the judge advocate and commanding officer whenever the former knows or has good reason to believe that the court will be reduced below a quorum at the time of trial. It is the duty of commanding officers to keep in touch with the business before general courts- martial being held within the limits of their commands and from time to time to take the initiative in making recommendations to the appointing authority as to relieving or adding members, changing the judge advocate, or appointing a new court, and as to other mat- ters relating to such courts, so that they may proceed expeditiously and in cooperation with other official business. (b) Special courts-martial. — Any number of officers from three to five, inclusive. The remarks under (a) ante apply equally to a special court-mar- tial where its membership is reduced below the minimum required by law, except that in the case of special court-martial the report by the judge advocate will be made to the convening authority, who will, without unnecessary delay, detail a sufficient number of qualified ' :s to enable it to proceed or appoint a new court. (c) Summary courts-martial. — A summary court-martial shall con- sist of one officer. (C. M. C. M., No. 1.) 8. " Officer" defined. — The word " officer" when used in the Articles of War or this Manual means commissioned officer. (A. W. 1.) 9. " In the military service of the United States." — (a) An officer sus- pended from rank should not be detailed to sit as a member of a court-martial during the period of suspension. (h) A retired officer may be assigned with his consent to active duty upon courts-martial in time of peace (act of Apr. 23, 1904, 33 Stat,, 264), and if employed on active duty in time of war in the discretion of ihc President (sec. 24, act of June 3, 191*6, 39 Stat., 183), he is eligible for court-martial duty. At other times he is not available for such duty except that when placed in command of a post under the act of August 29, 1916 (39 Stat., 627), or when assigned to recruiting duty he may act as summary court-martial when he is the only officer 26 and 27.) (c) Volunteers become eligible for duty as members of courts- martial from the dates of their muster or acceptance into the military service of the United States (A. W. 2), members of the Officers' Reserve Corps ordered to active service by the Secretary of War (sec 8 MANUAL FOR COURTS-MARTIAL. S8, ad of June 8, L916, 39 Stat, 191), and all other officers lawfully called, drafted, or ordered into, or to duty or for training in, the said Lee, from the date they are required b3' the terms of the call, draft, or order t<> obey the same (A. W. 2). 10. Marine officers. — Marine officers can be detached for duty with the Army only by order of the President (11. S. 1619, 1621), and their eligibility to sit as members of courts-martial to try persons subject to military law continues only during the time they are serv- ing under Mich order. When any part of the Marine Corps is pres- > ith the Army and engaged in a common enterprise with it, without an order of the President detaching it for service with the Army, the case is one of cooperation and not of incorporation, and •h a case no officer of the Marine Corps can exercise command the Army any more than a naval officer can when some part of NTavy is cooperating with the Army, and the converse is true of Army officers cooperating with the Marine Corps. (28 Op. Atty. Gen., 15.) 11. No distinction between Regulars and other forces. — No distinction s in the matter of eligibility for court-martial duty among the various classes of officers in the military service of the United States for the trial of any person subject to military law. (Act of Apr. 25, 1014, 38 Stat., 348; A. W. 4.) 12. Rank of members. — (a) The order appointing a general or a ,1 court-martial should name the members in order of rank, and they will sit according to rank. In no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank. (A. "VV. 16.) This provision (like that in reference to the number of members of a general or special court-martial considered in paragraph 7, ante) is not prohibitory but directory only upon the convening authority. Its effect is to leave to the discretion of that officer, as the conclusive authority and judge, the determination of the question of the rank of the members, with only the general instruction that superiors in rank to the accused shall be selected, so far as the exigencies and interests of the sen Lee vv ill permit. (Mullan y. IT. S., 140 U. S., 240.) (b) Rank among officers of the Regular Army, Eorces drafted or called into the ser\ ice of the United States, and Volunteers is deter- mined according to the rules laid down in A. W. 110. 13. Who may be tried. — (a) For the jurisdiction of general, special, and summary courts-martial as to persons see Chapter IV, Juris- diction. (b) In addition to the persons subject to military law enumerated in Chapt Ion II T. ante, the general court-martial also has jurisdiction over any other person who by the law of war is subject to trial bj military tribunals (A. W. 12 ; see Chap. IV, Jurisdiction.) CHAPTER III. COURTS-MARTIAL— BY WHOM APPOINTED. Page. Section I: General courts-martial 9 14. Authorities enumerated, (a) to (i) _. 9 Exceptions — (1) Appointing authority as accuser or prosecutor 10 (2) Superintendent of Military Academy 10 15. Tower of President to appoint 10 16. Same for Superintendent of Military Academy 10 17. "Accuser " or "prosecutor " defined 10 18. Power to appoint an attribute of command 11 19. Punk of appointing authority 12 20. Tower of appointing authority — How limited 12 Section II : Special courts-martial 12 21. Authorities enumerated, (a) to (i) 12 Exception — Appointing authority a3 accuser or prosecutor 12 22. Commanding officer as accuser or prosecutor 12 23. Tank of appointing authority 13 24. Commanding officer as member 13 Section III: Summary courts-martial 13 25. Authorities enumerated, (a) to (/j) 13 26. "When more than one officer present 13 27. When but one officer present 14 28. "Detachment" defined 14 29. Power of brigade commanders 14 Section IV: Judge Advocate. 30. Power to appoint 15 31. Duties 15 Section I. GENERAL COURTS-MARTIAL. 14. Authorities enumerated. — General courts-martial may be ap- pointed by the following authorities (A. "W. 8), viz: (a) The President of the United States. (b) The commanding officer of a territorial division. (c) The commanding officer of a territorial department. ('/) The Superintendent of the Military Academy. (e) The commanding officer of an army. (/) The commanding officer of an army corps. 10 MANUAL FOR COT7BTS-MABTIAL. (,/) The i ing officer of a (tactical) division, manding officer of a separate brigade. The commanding officer of any district or of any force or body of troops, when empowered by the President to d< Exceptions. — (1) When any of the foregoing commanders is th® ■v or the prosecutor, of the person or persons to be tried, the court Bhall be appointed by superior competent authority; (2) the Superintendent of the Military Academy is not empowered to con- vene a general court-martial for the trial of an officer. (A. W. 12.) [Note.— For the authority to appoint general court-martial in the National cot in Uk" service of the United States, see see. K>3 act of June 3, 1016, [>0**.] 15. Power of the President to appoint.— In addition to the general statutory authority conferred upon the President by A. W. 8 to ap- point general courts-martial he is also empowered to do so by virtue of I »eing Commander in Chief of the Army (Swain v. U. S., 165 U. S., and in the particular case provided for by R. S. 1230. [Note.— When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he lias been jfully dismissed, the President shall, as soon as the necessities of the ■ may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed. And if a court-martial is not mvened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death aa of such officer, the order of dismissal by the President shall be veld. (B. S. 1230.) See also A. W. 118.] 16. Superintendent of the Military Academy. — The Superintendent of the Military Academy was authorized by R. S. 1326 to convene gen- eral courts-martial for the trial of cadets only; the act of March 2, 1913 (37 Stat., 722), extended this authority to include all persons pt officers) subject to military law under his command. Thi* authority « as continued in the Code of 1916. (A. W. 8, 12.) 17. "Accuser " or " prosecutor." — Whether the commander who con- vened the court is to be regarded as the "accuser or prosecutor" where he has had to do with the preparing and preferring of the charges, is mainly to be determined by his animus in the mat- ter. He may, like any other officer, initiate an investigation of an officer's conduct and formally prefer, as his individual act, charges •licer; or by reason of a personal interest adverse to the accused he may adopt practically as his own charges initiated b; other; in which cases he is clearly the accuser or prosecutor within the article. On the other hand, it is his duty to determine, when the facts are brought to his knowledge, whether an officer within his com- mand charged with a military offense shall in the interest of disci- pline and for the good of the service be brought to trial. To this end I >rmally refer or revise or cause to 1 d and then formally _es preferred against such officer by another; COUETS-MAKTIAL, BY WHOM APPOINTED. 11 or when the facts of an alleged offense are communicated to him, he may direct a suitable officer, as a member of his staff, or the proper commander of the accused, to investigate the matter, formulate and prefer such charges as the facts may warrant, and having been sub- mitted to him, he may revise and refer them for trial as in other cases; all this he may do in the proper performance of his official duty without becoming the accuser or prosecutor in the case. Of course, he can not be deemed such accuser or prosecutor where he causes charges to be preferred and proceeds to convene the court by direction of the Secretary of War or a competent military superior. (Digest, p. 154, LXXII, I, 1.) It is not essential that the commander who convenes the court-martial for the trial of an officer should sign the charges to make him the "accuser or prosecutor" within the meaning of this article. Nor is the fact that they have been signed by another con- clusive on the question whether the convening commander is the actual accuser or prosecutor. The objection that such commander is such, calls in question the legal constitution of the court, and while such objection, if known or believed to exist, should regularly be in- terposed at or before the arraignment it may be taken during the trial at any stage of the proceedings. If not admitted by the prosecution to exist, the accused is entitled to prove it like any other issue. (For decisions as to when the convening authority is the accuser or prose- cutor, see Digest, p. 155, LXXII, I, 1, a; p. 155, LXXII, I, 2; p. 156, LXXII, I, 3, a; p. 156, LXXII, I, 3 a (1).) 18. Power to appoint an attribute of command. — As the authority to appoint general courts-martial is an attribute of command, a com- manding officer can not delegate to another officer such as his adju- tant or any other staff officer or subordinate the authority to appoint a court, detail an additional member, or relieve a member. If the authority to appoint a general court-martial is vested by law in a commanding officer he retains that authority, wherever he may be, so long as he continues to be such commanding officer. In the absence of orders or legislation, personal presence within the territorial limits of his department is not essential to the validity of commands given by a department commander to be executed within the department. Therefore he may appoint a court-martial while absent from his department if he continues to exercise command. But a depart- ment commander detached and absent from his command for any considerable period by reason of having received a leave of absence (whether of a formal or informal character), or having been placed upon a distinct and separate duty, is held to be in a status incom- patible with a full and legal exercise of such authority and therefore Incompetent during such absence to order a general court-martial as department commander, even though no other officer has been 12 MWL FOR COUBIS-MABTIAL. med or has succeeded to the command of the department. 5t,p. 153, LXXII, A.) 19. Rank of appointing authority. — The power of the various com- manders enumerated in paragraph 11. supra, to appoint genera] courts-martial is independent of their rank, but no officer other than those enumerated can appoint a general court-martial no matter what his rank may be. An officer who succeeds to any command or duly stands in regard to his duties in the same situation as his predecessor. (A. R. 17.) In the event of the death or disability of tlie permanent commander of a territorial department, or his temporary absence from the limits of his command, the senior line and on duty therein will exercise the command of the department, unless otherwise ordered, until relieved by proper au- thority. (A. R. 1'. »('..) 20. Power of appointing authority, how limited. — An officer who has power to appoint a court-martial may control its existence, dissolve it. and determine the cases to be referred to it for trial, but he can not control the exercise by the court, of powers vested in it by law. Section II. SPECIAL COURTS-MARTIAL. 21. Authorities enumerated. — Special courts-martial may be ap- pointed by the following authorities (A. W. 0), viz: (a) The commanding officer of a district. (b) The commanding officer of a garrison. (c) The commanding officer of a fort. (<7) The commanding ofiicer of a camp. (e) The commanding officer of any place other than (a), (?>),( ap clal courts-martial in Hie National Guard aol in th< the United suites, sec sec. 104, art of June ::. 1316, € ; Appendix 2, poi i.\ 22. Commanding' officer as "accuser or prosecutor." — The rules laid dov ii in Section 1. paragraph 17 9 8upra, for determining when a com- mander is the accuser or prosecutor apply equally to trials by special COURTS-MARTIAL BY WHOM APPOINTED. 13 courts-martial. When a superior appoints a court because of such disqualification on the part of a subordinate commanding officer, he will specify in the order the names of the person or persons to be tried, and the court will adjourn sine die upon the completion of the last case which it is ordered to try. 23. Sank of appointing authority. — As in the case of general courts- martial, the test of the power to appoint a special court-martial is whether the officer is one of the commanders designated in A. "VV. 9. Such authority is an incident of his power to command, and is in- dependent of his rank. 24. Commanding officer as member. — When but two officers in addition to the commanding officer are available for detail on a special court- martial, the commanding officer will not detail himself as a member of such court. In such a case, if superior authority desires to ap- point a special court-martial for such command, the commanding officer, if otherwise eligible, may be appointed as a member thereof. Section III. SUMMARY COURTS-MARTIAL. 25. Authorities enumerated- — Summary courts-martial may be ap- pointed by the following authorities (A. W. 10), viz: (a) The commanding officer of a garrison. (b) The commanding officer of a fort. (e) The commanding officer of a camp. (d) The commanding officer of any other place not enumerated in (a), (5), and (c) where troops are on duty. (e) The commanding officer of a regiment. (/) The commanding officer of a detached battalion. (g) The commanding officer of a detached company. (A) The commanding officer of any other detachment not enumer- ated in (/) and (g). A summary court-martial may in any case be appointed by su- perior authority when by the latter deemed desirable. [Note. — For the authority to appoint summary courts-martial in the National Guard not in the service of the United States, see sec. 105, act of June 3, 1916, 39 Stat, 208; Appendix 2, post.] 26. When more than one officer present. — When more than one officer is present the summary court-martial will be appointed from staff officers or available line officers junior to the commanding officer. The commanding officer will not in such cases designate himself as the summary court-martial. The senior officer on duty at a recruit- ing station is a " commanding officer " in the sense of the last pre- ceding sentence when there is another officer present at the same station, even though the latter may be serving at an auxiliary or branch station. (Bui. 40, War Dept, Oct. 24, 1914.) l[ MANUAL FOE COniT.S -MAUJ 1AL. 27. When but one officer present. — When but one officer is present with b command tie shall he the summary court-martial of thai com- , and shall hear and determine cases brought before him. (A. W. in. i in B uch a case, no order appointing the court will be issued i he officer will enter on the record that he is the ' c only office] I with the command." (As to retired officers, see pur. 9, h.) 28. " Detachment " denned. — A battalion or other unit is " detached " when isolated <>r removed from the immediate disciplinary control of a superior of the same branch of the service in such a manner i make its commander primarily the one to be looked to by superior authority as the officer responsible for the administration of the dis- cipline of the enlisted men composing the same. The term is used in a disciplinary sense, and is not necessarily limited to what con- stitutes detachment in a physical or tactical sense. The commanding officers of such units as field signal battalions, aero squadrons, field bakeries, and ammunition, engineer, or sanitary trains, if their re- spective commands are independent, except in so far as they consti- tute parts of a division, and if their commanders are responsible directly to the division commander for the maintenance of discipline in those commands, are competent to appoint summary courts for the same, subject to the power of the division commander to appoint summary courts for all subordinate organizations and detachments under his command if by him deemed advisable. So likewise the various service schools, such as the Mounted Service School at Fort Riley, though they may be located within the imme- diate limits of higher commands, constitute "detachments" wuthin the meaning of A. W. 10, and the commandants thereof have power to appoint summary courts-martial for the trial of enlisted men connected with such schools, subject to the right of the commanding officer «d' the garrison or fort to appoint such courts when by him deemed desirable. ( BuL 13, War Dept.. 1913, p. 7.) 29. Power of brigade commanders. — A brigade commander is respon- sible for the instruction, tactical efficiency and preparedness for war Lee of his brigade. ( A. R. 194.) If the brigade is serving at one garrison or post he lias, by virtue of his power as such garrison or po i commander, authority to retain within himself the appointing power <>f all summary courts w [thin his command, but if he does not exercise the authority which is vested in him by statute he allows the appointing power, including the power of review, to pass to regi- mental (and detachment) commanders. (Digest, p. 580, XVI, E, 7.) If the brigade is acting as a tactical unit in the field, lie may as su- »r authority, appoint summary courts-martial for his command whenever he deems it desirable, but such authority will ordinarily be exercised by the regimental commanders. COURTS-MARTIAL BY WHOM APPOINTED. 15 Section IV. JUDGE ADVOCATE. 30. Power to appoint. — For each general or special court-martial the authority appointing the court shall appoint a judge advocate, and for each general court-martial one or more assistant judge advocates when necessary. (A. W. 11.) 31. Duties of judge advocate and assistant judge advocates. — For dis- cussion of the duties of the judge advocate and his assistants see Chapter VII, Sections II and III. CHAPTER IV. COURTS-MARTIAL— JURISDICTION. Page. Section I : Jurisdiction in general 17 32. Jurisdiction denned 17 33. Courts-martial not part of Federal judicial system 18 34. Conditions necessary to show jurisdiction 18 35. Procedure when military and civil jurisdiction concurrent 19 36. Can not be divested by act of accused 20 37. Not territorial 20 38. When terminated— Rule stated 20 Exceptions (a) to (e) 20 Section II : Jurisdiction of general courts-martial 21 39. Persons and offenses 21 40. Limits of punishment — Exception 21 Section III: Jurisdiction of special courts-martial 22 41. Persons and offenses 22 42. limits of punishment 22 Section IV: Jurisdiction of summary courts-martial 22 43. Persons and offenses 22 44. Limits of punishment 23 Section V: Jurisdiction cf other military tribunals 23 4'j. When concurrent with corals-martial 23 Section I. JURISDICTION IN GENERAL. 32. Jurisdiction defined— The jurisdiction of a court-martial is its power to try and determine cases legally referred to it and, in case of a rinding of guilty, to award a punishment for the offense within its prescribed limits. Being courts of special and limited jurisdiction their organization, powers, nnd mode of procedure must conform to all the statutory provisions relating to their jurisdiction. (For the source and kinds of military jurisdiction and persons subject to mili- tary !: *ap. I, Sees. I and III.) L5°— 18 3 17 18 MANUAL FOB COURTS- MAKTIAL. 33. Courts-martial not part of Federal judicial system. — "While courts- tial have do pari of the jurisdiction set apart under the art of the Constitution which relates to the judicial power of the United a they have an equally certain constitutional source. The Lished under the constitutional power of Congress to make ' : le government and regulation of the land forces of the Ui •-. and are recognized in the provisions of the fifth amendment 3sl exempting "ci ig in the land and naval for© the requirement as to : >t and indictment by grand v tribunals appointed by military orders issued under authority of law. The power to appoint them, as well as the power ; upon their proceedings, is vested by law in certain command- rs. Their jurisdiction is entire/;/ criminal. They have no r to adjudge damage for personal injuries or private wrongs, nor to collect private debts. Their judgments upon subjects within their limited jurisdiction, when duly approved or confirmed, are as 1 as those of any other tribunals. No appeal can be • them, nor can they be set aside, or reviewed by the courts of the United States, nor of any State, but United States courts may, rit of habeas corpus, inquire into the legality of detention of a on held by military authority, at any time, either before or during trial or while serving sentence, and will order him discharged if it appears to the satisfaction of the court that any of the statutory rements conferring jurisdiction have not been fulfilled. Their sentences have in themselves no legal effect until they have received the approval or confirmation of the proper commanding officer. With such approval or confirmation, however, their sentences become itive and are as effective as the sentences of civil courts having criminal jurisdiction, and are entitled to the same Legal consideration. 34- Conditions necessary to show jurisdiction. — The jurisdiction of i-wry court-martial, and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: rhat it was convened by an officer empowered by statute to appoint it. (b) That the persons who sat upon the court were legally com- petent to do so. (c) That the court thus constituted was invested by the acts of less with power to try the person and the offense charged. ) That its sentence was in accordance with law. •• Persons, then, belonging to the Army and the Navy are not sub- to illegal or irresponsible courts-martial, when the law for con- vening them and directing their proceedings of organization and for trial have been disregarded. In such cases, everything which may be done is void— not voidable, but void; and civil courts have never failed, upon a proper suit, to give a party redress, who has been COURTS-MARTIAL JURISDICTION". 19 injured by a void process or void judgment. * * * When we speak of 'proceedings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on ths trial, or any mistaken rulings in respect to evidence or law, but a dis- regard of the essentials required by the statute under which th& court has been convened to try and to punish an offender for an imputed violation of the law." (Dynes v. Hoover, 01 U. S-, 81 ; see also Doming v. McClaughry, 113 Fed. Rep., 050; McClaugLr Deming, ISO U. S., 03; Mullan v. United States, 140 U. S„ 240; Ex parte Tucker, 212 Fed. Rep., 509; and A. W. 37.) 35. Procedure when military and civil jurisdiction concurrent. — Courts- martial have exclusive jurisdiction to try persons subject to military law for all purely military crimes and offenses; they have concurrent jurisdiction with the proper civil courts to try such persons for civil crimes and offenses denounced and punished under A. W. 92, 93, 91, and 90. (For limitation as to the crimes of murder and rape, see A. W. 92.) In accordance with a principle of comit between the civil and military tribunals in cases of concurrent jurisdiction the jurisdiction which first attaches in a particular ease is entitled to proceed to its termination. This is, however, not an inflexible rule and need not govern the action of the military authori- ties in the case of an accused person demanded by the civil authorities to answer for an offense which is primarily one against the civil community. When any person subject to military law, except (a) one who is held by the military authorities to answer, or (b) who is awaiting trial, or (c) result of trial, or (d) who is undergoing sentence for a crime or offense punishable by the Articles of War, is accused of a crime or offense committed within the geographical limits of the States of the Union and the District of Columbia, and punishable by the laws of the land, the commanding officer is required, except in time of war, upon application duly made, to use his utmost en- deavor to deliver over such accused person to the civil authorities, or to aid the officers of justice in apprehending and securing him, in order that he may be brought to trial. Any commanding officer who upon such application refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil authorities or to aid the officers of justice in apprehending and securing hira shall be dismissed from the service or suffer such other punishment ourt-martial may direct. When, under the provisions of this article, delivery is m the civil authorities of an offender ^undergoing sentence of a c< martial, such delivery, if followed by conviction, shall be held U interrupt the execution of the sentence of the court-martial, and the offender shall be returned to military custody, after hi 20 MANUAL FOR COURTS-MARTIAL. •red t<> the civil authorities for his offense, for the completion of the said court-martial sentence. (A. W. 74.) When offenses against the peace and good order of < ivil communities are committed • •l'sons subject to military law, the proper military authorities will be prompt in the preferring of charges and the arraignment of offenders, having due regard for arrangements existing for the purpose of securing between the authorities of the two jurisdictions, civil and military, mutual aid and cooperation in the administration of justice. In such cases, if, after charges are preferred, the officer petent to order trial by the proper court-martial deems it inad- visable to bring the case to trial, he will hold the offender and for ward the charges, with his views thereon, to The Adjutant General of the Army. 36. Can not be divested by act of accused. — A court-martial having once duly assumed jurisdiction of a ease, can not, by any wrongful act of the accused, be ousted of its authority or discharged from its duty to proceed fully to try and determine according to law and its oath. Thus the fact that, after arraignment and during the trial, the accused has escaped from military custodj 7, 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. During such absence it is proper for his counsel to continue to represent him in all respects as though present. 37. Not territorial. — Military jurisdiction is not territorial. It ex- tends as to persons legally subject to it to offenses committed by them in any place whatsoever, whether within or beyond the territorial jurisdiction of the United States. 38. When terminated — Rule stated. — The jurisdiction of courts-mar- tial over officers, cadets, and soldiers ordinarily ends when they me separated from the service. The following are, however, • ''//(. s- to this gem re' i < /L : (a) If any person, being guilty of any of the offenses of fraud, embezzlement, etc., against the United States, while in the military 3ervice of the United States, receives his discharge or is fron ce, he shall continue to be liable lobe arrested and. held for trial and sentence by a court-martial in the same manner and to Hi'- same extent as if he had not received such discharge nor been dismi --d. (A. \V. 94.) {!>) When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he has been wrongfully dismissed, the President shall, as soon as the - of the service may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed, ami if a court-martial is not so convened within six months from the date of making of such application for trial, or if such court, being COURTS-MARTIAL JURISDICTION. 21 convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. (E. S. 1230.) [Note. — In time of peace no officer shall be dismissed excepl in pursuance of the sentence of a court-martial or In mitigation thereof. (A. \v. lis.) An officer discharged from bis office by the President under section 9 of the selec- tive-draft acl is nol entitled to demand a trial by court-martial. (Dig. Ops. J. A. <;.. May. 1918, Office IV E.)] (c) All persons under sentence adjudged by courts-martial remain subject to military law, while under such sentence. (A. W. 2.) (d) "Where a soldier obtains his discharge by fraud, the discharge may be canceled and the soldier arrested and returned to military control. He may also be required to serve out his enlistment and may be tried for his fraud. (Digest, p. 457, XVI, A. 3.) (e) An honorable discharge releases from the particular contract and term of enlistment to which it relates, and does not therefore relieve the soldier from the consequences of a desertion committed during a prior enlistment. (Digest, p. 462, XXII, A.) A dishonor- able discharge does not relate to any particular contract or term of enlistment; it is a discharge from the military service as a punish- ment — a complete expulsion from the Army — and covers all unex- pired enlistments. A soldier thus dishonorably discharged can not be made amenable for a desertion or other military offense committed under a prior enlistment except as provided in A. W. 94. Nor would a subsequent enlistment after such dishonorable discharge operate to revive the amenability of the soldier for such offenses. (Digest, p. 462, XXII, B.) [Note. — For an offense committed prior to the expiration of his term of en- listment, a soldier may be held in the service and tried after the expiration of his term. So, also, a soldier may be tried for offenses committed while making good time lost through desertion, through absence without leave, through dis- ult of his own misconduct, etc., under A. W. 107.] (C. M. • /■! Section II. JURISDICTION OF GENERAL COURTS-MARTIAL. 39. Persons and offenses — General courts-martial have power (A. TV. 12) to try — person subject to military law, for (h) Any crime or offense made punishable by the Articles of War. [Note. — No officer slinl! be brought 1<> trial before a general court-martial appointed by the Superintendent of the Military Academy. < \. W. 12.)] In addition they have power to try- Any person othet than (f spies (A. W. 82) ; dis- missal is mandatory For conduct unbecoming an officer and gentleman (A. W. either death <>r Imprisonment (or life is mandatory Cor murder and rape i a. w . 92); punlshmenl is mandatory in part and discretionary in part for muster (A. W. 66), false returns (A. W. 57), officer drunk on duty in time r i a. \v. B5), and personal Interest in the sale of provisions (A. \v. 87). For limits ot' punishment fixed by the President under a. w. XIII, post, Punishments.] Section III. JURISDICTION OF SPECIAL COURTS-MARTIAL. 41. Persons and offenses. — Special courts-martial shall have power «'A. W. 13) to try— (1) Any person subject to military law, except — (a) An officer; (b) Any person subject to military law belonging to a class or classes excepted by the President, for (2) Any crime or offense (not capital) made punishable by the Articles of War. [Note. — Cadets ami soldiers holding a certificate of eligibility for promotion re excepted from tlie jurisdiction of Special Courts-martial.] The following are capital crimes and offenses under the Articles of War, viz: (1) At all times. — (a) Assaulting or disobeying a superior officer (A. W. 64) ; (b) mutiny or sedition (A. W. 66) : (V) failure to sup- press mutiny or sedition (A. W. 67) : (d) murder, rape (A. W. 92). (2) War offenses. — (a) Desertion (A. W. 58); (&) advising or aiding another to desert (A. W. 59); (c) misbehavior before the try (A. W. 7"> ) ; (d) subordinates compelling commander to ender (A. W. 76) : ' er use of countersign (A. W. 77) : (/) forcii guard (A. W. 78) ; (g) relieving, corresponding . or aiding the enemy (A. W. 81); (h) spies (A. V. bavior of sentinel (A. W. 86). {('. M. C. J/., No8. 1 and I) 42. Limits of punishment. — A special court-martial shall not have power to adjudge — (, r*,,n subject to military law, except — (a) An officer; COURTS-MARTIAL JURISDICTION. 23 (b) A cadet; (c) A soldier holding the privilege of a certificate of eligibility to promotion ; (d) A noncommissioned officer who objects thereto (without the authority of the officer competent to bring him to trial before a gen- eral court-martial) ; (e) Any person belonging to a class or classes excepted from the jurisdiction of summary courts-martial by the President. (2) Any crime or offense (not capital) made punishable by the Articles of War. [Note. — For list of capital crimes under the Articles of War see Sec. Ill, par. 41, supra.] 44. Limits of punishment. — A summary court-martial shall not have power to adjudge — (a) Dishonorable discharge, (5) Confinement in excess of three months, nor (c) Forfeiture of more than three months' pay. Exception. — When the summary court officer is also the command- ing officer, no sentence of such summary court-martial adjudging confinement at hard labor or forfeiture of pay, or both, for a period in excess of one month shall be earned into execution until the same shall have been approved by superior authority. (A. W. 14.) [Note. — (a) Reduction to the ranks in the case of noncommissioned officers and {b) reduction in classification in the cases of first-class privates are within the limits of the punishing power of summary courts-martial. (Act of Mar. 2, 1913, 37 Stat, 723.)] Section V. JURISDICTION OF OTHER MILITARY TRIBUNALS. 45. When concurrent with courts-martial. — The provisions of the Articles of War conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect to offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals. (A. W. 15.) CHAPTER V. COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. Page. •Section I : Arrest and confinement 25 4C>. Arrest or confinement of accused persons 25 47. Who may order arrests 26 (a) Commmanding officers 26 (6) Judge advocates 26 (c) Courts-martial 26 48. Arrest, how executed 26 49. Status of officer in arrest 26 50. Arrest of officer without preferring charges 26 51. Arrest of medical officer 27 52. Arrest and confinement of soldiers 27 53. Status of noncommissioned officers in arrest 27 54. Abuse of authority to arrest 27 55. Refusal to receive and keep prisoners 28 56. Placing prisoners in irons 28 57. Releasing prisoners without proper authority 28 Section II : Arrest of deserters by civil authorities 28 58. Authority for apprehension 28 59. Authority of citizens other than peace officers to arrest deserters 28 60. Minority of deserter 29 Section I. ARREST AND CONFINEMENT. 46. Arrest or confinement of accused persons. — (a) An officer charged with crime or with a serious offense under the articles of war shall be placed in arrest by the commanding officer, and in exceptional cases an officer so charged may be placed in confinement by the same authority. (b) A soldier charged with crime or with a serious offense under the articles of war shall be placed in confinement, and when charged with a minor offense he may be placed in arrest. (c) Any other person subject to military law charged with crime or with a serious offense under the articles of war shall be placed in confinement or in arrest, as circumstances may require; and when charged with a minor offense such person may be placed in arrest. Any person placed in arrest under the provisions of this article 25 26 LNUAL FOR COURTS-MAKTIAI.. icted to his barracks, quarters, or tent, unit >s such Limits shall be enlarged by proper authority. Any ipes from confinement before he is set i by proper authority shall be dismissed from the : suffer such other punishment as a court-martial may direct • and any i □ subject io military law who escapes from con- ,. nt or v. ho breaks his arrest before he is set at liberty by proper authority shall be punished as a court-martial may direct. (A.W.69.) [Note. — A fall e a person subject to military law in arrest or con- finement <>r the disregard of any custom or Cormalil sd therewith does ffecl the jurisdiction of a court 1 47. Who may order arrests. — (a) Only commanding officers have power to place officers in arrest, except as provided in A. W. 68. [Note. — The "commanding officer" tluis authorized is the commander of the regiment, separate company, detachment, post, department, etc., in which the officer is serving. Digest, p. 481, I D. 1.] (b) A jui.\ ite of a court-martial has no authority to place in arrest an officer or soldier about to be tried by the court, or to com- ance of the accused before the court by requiring a non- idssioned officer to bring him, or otherwise. These are duties which devolve, upon the convening authority or upon the post com- mander or other proper officer in whose custody or command the ac- cused is at the time. (Digest, p. 498, IV, B, 5.) (c) A court-martial has no control over the nature of the arrest or other status of restraint of a prisoner except as regards his personal freedom in its presence. It cannot place an accused person in arrest or confinement nor can the court, even with a view to facilitate his de- . interfere to cause a close arrest to be enlarged. The officer in command is alone responsible for the prisoners in his charge. (Davis, p. 62.) 48. Arrest, how executed. — An officer is placed in arrest by his com- manding officer in person or through another officer, by a verbal or written order or communication, advising him that he is placed in :. or will consider himself in arrest, or words to that effect. 49. Status of officer in arrest. — An officer in arrest can not exercise tnand of any kind. He will not wear a sword nor visit officially his commanding or other superior officer, unless directed to do so. applications and requests of every nature will be made in writing. (A. R. 026.) 50. Arrest of officer without preferring charges. — Officers will m led in arrest for light offenses. For these the censure of the nanding < • generally answer the purpose of discipline. \\ henever a commanding officer places an officer in arrest without : ring charges, he will make a written report of his action to the brigade or < loasl Artillery district commander, stating the cause, brigade or Coast Artillery district commander, if he thinks the COURTS-MARTIAL PROCEDURE PEIOR TO TRIAL.. 27 occasion requires, -will call on the officer arrested for any explanation he may desire to make, and take such other action within his au- thority as he may think necessary, forwarding the papers, with hig recommendation, to the department commander, who will, in case a trial is not deemed advisable, forward the papers to The Adjutant General of the Army for file with the officer's record, or for further action. In the case of officers belonging to organizations not attached or belonging to a brigade or Coast Artillery district, the report will be sent directly to the officer exercising general court-martial juris- diction. (A. E. 924.) 51. Arrest of medical officer. — 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. (A. E. 925.) 52. Arrest and confinement of soldiers. — Except as provided in A. W. or when restraint is necessary, no soldier will be confined without order of an officer, who shall previously inquire into his offense t A. 11. 930) ; it is proper, however, for a company commander to gate to noncommissioned officers of his company the power to place enlisted men in arrest as a means of restraint at the instant when restraint is necessary, but such action must be reported to the company commander at once. (Digest, p. 481, 1, E, 1.) 53. Status of noncommissioned officer in arrest. — Noncommissioned officers will not be confined in company with privates if it can be avoided. When placed in arrest, they will not be required to perform any duty in which they may be called upon to exercise authority or control over others, and when placed in confinement, they will not be sent out to work. 54. Abuse of authority to arrest. — The fact that cases of officers put in arrest "at remote military posts or stations" are excepted from the application of A. W. 70 does not authorize an abuse of the power of arrest in these cases. And where, in such a case, an arrest, con- sidering the facilities of communication with the department head- quarters and other circumstances, is in fact unreasonably protracted without trial the officer is entitled to be released from arrest upon a proper application submitted for the purpose'. (Digest, p. 152, LXXI, C.) Though an officer, in whose case the provisions of A. W. TO in regard to service of charges and trial have not been complied with, is entitled to be released from arrest, he is not author- ized to release himself therefrom. If he be not released in accordance with the article he should apply for his discharge from arrest. through the proper channels, to the authority by whoso order the ! was imposed, or other proper superior. (Digest, p. 153 y LXXI, D.) When an offieer is placed in arrest in the operation of \. W. 69 and subsequently tried he is not entitled to be released from 28 MANUAL FOR COURTS-MARTIAL. arrest, Eta a right, until the proper reviewing authority has acted on the record of hia case. ( Digest, p. L52, LXV, ('.) 55. Refusal to receive and keep prisoners. — No provost marshal or commander of ■ guard shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United Slates, provided the officer committing shall, at the time, deliver an account in writing, signed by himself, of the crime or I against the prisoner. Any officer or soldier so refus- ing shall be punished as a court-martial may direct. (A. YV. 71.) [Note. — A. W. 72 requires every commander of a guard to submil a report in writing to his commanding officer within twenty-four hours after (he confine- ment ef a prisoner (or as soon as he la relieved from his guard) showing (.) So where the exact time or place of the commission of the offense is not known it 38 MANUAL FOB COURTS-MARTIAL. is frequently preferable to allege it as having occurred " <>n or about" : .in date or time, or " at or oe : am Locality, rather I to aver it as committed on a particular day or between two specified or at a particular place. Ther L< fined construction to be i apon the words "on or about" as used in the allegation of cification. The phrase can not be said to cover any precise number of days or Latitude in time. It is ordinarily used in military pleading for the purpose of indicating some period, af nearly as can be ascertained and set forth, at or during which the targed are believed to have been committed — in cases where day can hot well be named. And the same is to be said as • use of the words " at or near " in connection with the averment of place. ( Digest, p. 485, II, D, 9, a.) If the specification alleges the offense to have been committed " on " a certain date or " at " a the court in its findings may, by exceptions and substi- tutions, find another date or place if the evidence supports such ulments, provided the new date or place is sufficiently near the one alleged that an injustice is not done the accused. In preparing several specifications under one charge, the time and place of the alleged offense will be given in each specification. (h) Christian name. — The Christian name of an accused should be used in preparing charges, but where there are one or more middle names they may be indicated by the initials only. In the case of a person in the military service the name used in the charges should correspond to that borne by the accused on the muster rolls or the Army register. (I) Charging under "alias." — If the accused is known by two names, as where a soldier enlists under a name different from that under which he was known in his prior enlistment, both the heading of the charge and the specification will describe him under his true name and also under his assumed name as an alias. (j) General prisoners. — In charging a general prisoner with an offense, the form of the charge will not be changed but the specifica- tion will read as follows: Tn thai General Prisoner A B did [here allege the offense in the language prescribed when it is committed by an officer or soldier]. It is not i to allege in the specification that the genera! prisoner was formerly a soldier, was tried by a general cour and sentenced to dishonorable discharge and a term of coni and that he committed the offense while serving such confine; The words " general prisoner" necessarily import such facts. [N( 1 1 prisoners are persons sentenced to dismissal or dishonor- able discharge and to terms of confinement al military posts or elsewhere I COURTS-MARTIAL — PROCEDURE PRIOR TO TRIAL. 39 (&) Change of rani'. — Where the rank of the accused has changed since the commission of an offense, the specification will read as fol- lows : In that Private A B , Company , Infantry, then sergeant, Company , Infantry, did, etc. (I) Written papers and oral statements. — A specification in alleg- ing the violation of an order which has been given in writing, or of any written obligation — as an oath of allegiance, parole, etc. — should preferably set forth the writing verbatim, or at least state fully its substance, and then clearly specify the act or acts which constitute its alleged violation. Oral statements should be alleged in as nearly the exact words as possible, but should always be qualified by the words "or words to that effect," or some similar expression, since proof will generally vary as to some word or words, particularly if some time has elapsed since the incident. A similar rule obtains in cases involving insubordinate or disrespectful language. (m) Scandalous and disgraceful offenses. — In framing charges it is permissible, under the custom of the service, after alleging the facts in the specification, to add, " This to the scandal and disgrace of the military service.'' This form of charge is appropriate in c of particularly disgraceful conduct committed in the presence of a number of persons, especially civilians, or while the offender was in uniform, or under other circumstances resulting in publicity. (n) Desertion followed by fraudulent enlistment. — Enlistment by a soldier in desertion is fraudulent. Such soldier should be charged with desertion under A. W. 58, and with fraudulent enlistment under A. W. 54. (Cir. 28, TVar Dept., 1908.) A fraudulent enlist- ment is no defense to a charge of desertion but is proof of such deser- tion, for a soldier can not be excused from repudiating a pending contract by substituting another in its place. In such a case the status of desertion remains, notwithstanding the deserter's presence in the military service under a fraudulent enlistment, until he sur- renders as a deserter or is apprehended as such. For a single deser- tion followed by a fraudulent enlistment, but one specification for wiU be preferred, in addition to the specification for fraud- ulent enlistment. [Note.— A. W. 2ti ((institutes a rule of evidence aud is not a punitive article.] (o) Larceny and sale of public property. — In cases of larceny of property (not described in A. W. 94) where the accused has sold the stolen property, the charges should not include specifications alleg- ing the sale except where the same has been made to an innocent party and constitutes such a fraud upon the purchaser as to warrant the preferment of a specification based upon such fraud. Proof of 40 MANUAL FOR COURTS-MARTIAL. a subsequent sale of stolen property goes to show intent to steal, and, therefore, evidence of such sale should be introduced to support charges of larceny, wherever available. Larceny and sale of United States property in violation of A. \V. 94 si;- uld each be charged in b ■ h it article denounces both offenses. (//) Wording of statute to he followed. — Wherever practicable th i exacl words of the articles of war will be followed. A person under the influi ace of liquor which incapacitates him mentally or physically for the proper performance of duty is " drunk." There- fore, under A. W. 85 the word " drunk" will be used. So in charg- ing other offenses involving drunkenness no other word or phrase will be used as a substitute for " drunk." Under such charges the court should not in its findings substitute such phrases as " under the inl ■■ eating liquor" and '*' intoxicated " for "drunk." . ¥., .v.. ;.) Section II. ACTION UPON CHARGES. 75. Submission of charges.— All charges for trial by court-martial will be prepared in triplicate, using the prescribed charge sheet as a first sheet and using such additional sheets of ordinary paper as are red. They will be accompanied — (a) Except when trial is to be had by summary court, by a brief statement of the substance of all material testimony expected from each material witness, both those for the prosecution and those for the defense, together with all available and necessary information as to any other actual or probable testimony or evidence in the case ; and (b) In the case of a soldier, by properly authenticated evidence of convictions, if any, of an offense or offenses committed by him during bis current enlistment and within one year next preceding the date of the alleged commission by him of any offenses set forth in the j;es. They will be forwarded by the officer preferring them to the officer immediately exercising summary court-martial jurisdiction over the command to which the accused belongs, and will by him and by each superior commander into whose hands they may come either be re- 1 to a court-martial within his jurisdiction for trial, forwarded to the next superior authority exercising court-martial jurisdiction the command to which the accused belongs or pertains, or other- wise disposed of as circumstances ar to require. 76. Investigation of charges.— If the officer immediately exercising summary court-martial jurisdiction over the command to which the ed belongs or pertains decides to forward the charges to superior autl, ill, before so doing, either carefully investigate them COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. 41 himself or will cause an officer other than the officer preferring the charges to investigate them carefully and to report to him, orally or otherwise, the result of such investigation. The officer investigating the charges will afford to the accused an opportunity to make any statement, offer any evidence, or present any matter in extenuation that he may desire to have considered in connection with the accusa- tion against him. (See par. 225 (b), p. 112.) If the accused de- sires to submit nothing, the indorsement will so state. In his indorsement forwarding the charges to superior authority the com- manding officer will include: (a) The name of the officer who investigated the charges; (I) The opinion of both such officer and himself as to whether the several charges can be sustained; (r) The substance of such material statement, if any, as the ac- cused may have voluntarily made in connection with the case during the investigation thereof; (d) A summary of the extenuating circumstances, if any, con- nected with the case; (e) His recommendation of action to be taken. 77. Prompt action required. — No person put in arrest shall be con- tinued in confinement more than eight days, or until such time as a court-martial can be assembled. When any person is put in arrest for the purpose of trial, except at remote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried is served upon him within eight days after liis arrest, and that he is brought to trial within ten days there- after, 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 ar- rested person be not brought to trial, as herein required, the arrest shall cease. But persons released from arrest, under the provisions of A. W. TO. may be tried whenever the exigencies of the service shall permit, within twelve months after such release from arrest. (A.W.70.) 78. Determination of proper trial court- — When an officer who exer- cises court-martial jurisdiction receives charges against an enlisted man it is his duty to consider whether they shall be tried by gen- eral, special, or summary court-martial. He should not withhold charges from trial by special or summary court solely for the rea- son that the maximum limit of punishment is beyond the juris- diction of such courts to impose. On the other hand, he should not refer to a special or summary court-martial offenses which by reason of their inherent gravity or of the circumstances surrounding their commission merit greater formality of trial or more condign punishment than is found in the procedure or jurisdiction of such courts. No fixed rule can be laid down and the matter must be de- 42 MANUAL FOR COURTS-MARTIAL. the careful consideration of commanders subject to limitations that while, in a proper rase, desertion may be tried fore a special court, felonies and C olving moral turpi* mould not be. am! capital crimes can not be tried by special or Bum niaiy courts-martial. (A. W. 13, lb For list of capital crij offenses see Chap. 1 V, Sec III.) 79. Disposition of copies of charges. — (a) When trial is to be bad by summary court the original charge sheet will be completed as the record of trial. This record will he delivered to the personnel ad- jutant, who will, after noting necessary data on the pay card of the accused, initial it in the place provided ami transmit same to the company or other commander, who will, after making the I entries on the service record, initial and return it to the command- ing officer who appointed the court, in whose office it will be care-i fully preserved for a period of two years, at the end of which' time it may be destroyed. A copy thereof will be retained in the office of the commanding officer who appointed the court until the original record has been returned for file, when this copy may be destroyed. The other copy will, with the least practicable delay, be transmitted as the required report of trial to the officer exercising general court- martial jurisdiction over the command, there to be filed in the office of the judge advocate until the statistical information required for tin' annual report of the judge advocate has been secured, when it may be destroyed. (7)) When trial is to be had by special or general court-martial the charges and one copy thereof will be referred to the trial judge advo- cate, the copy to be furnished by him to the accused or his counsel, and the other copy will be used for record purposes in the office of the officer appointing the trial court, the top fold of this copy of the charge sheet, in case of trial by general court-martial, being detached at the proper time and forwarded with the record of trial to the Judge Advocate General of the Army. (< '. M. I '. Jf.. Xo. 4.) 80. Service of charges upon accused. — In order that the accused may have, sufficient time to prepare for his defense it is provided by A. TV. TO that in time of peace no person shall, against his objection, be ght to trial before a general court-martial within a period of ubsequent to the service of charges upon him. CHAPTEK VII. COURTS-MARTIAL— ORGANIZATION. Paget Section I: The members i4 81. Place of meeting — Duties of members 44 82. Uniform 44 8:}. Seating of court 44 84. Roll call 44 absence of member 44 86. Decorum to be observed 4 5 87. Control of court over accused 45 88. Accused not to be tried in irons 45 89. Duties of the president 45 90. Voting 46 91. Closed sessions 46 92. Sitting with closed doors 47 93. Change in membership 47 Section II: The judge advocate 47 94. Selection 47 95. General duties 48 96. Duty toward accused 48 97. Examination of charges 49 98. Whole truth to be presented 49 99. Legal adviser of the court 49 100. Freedom in conducting case 49 101. Closed sessions 50 102. Accuser or prosecutor 50 103. Expediting trials 50 104. Weekly reports 50 105. Detail of orderly 50 Section III: Assistant judge advocate 51 106. Appointment 51 107. Duties 51 Section IV: Counsel 51 108. Appointment - 51 109. Duty of officer as counsel 52 110. Right to interview the accused 52 111. Witnesses, how questioned during trial 52 Section V: Reporter 52 112. Employment 52 113. Compensation 53 Decisions (a) to (/) 53 114. Disposition of vouchers . 54 115. Detail of soldier 54 116. Time limi t, for completing record 54 1 1 7. ( larl .on copies of the record 5* 118. Extra compensation for clerical duties 5£ Section VI: [nterpreter 5l 119. Employment and pay 55 43 44 MANUAL FOR COURTS-MARTTAL. Section I. THE MEMBERS. 81. Place of meeting: — Duties of members. — The authority appointing ;i general or special court-martial designates the place for holding ourt, hour of meeting, the members of the court, and the judge advocate. A general or special court-martial assembles at its first session in accordance with the order convening it ; thereafter, accord- ing to adjournment. Courts will be assembled at posts or stations where trial will be attended with the least expense. A member sta- tioned at the place where the court sits is liable to duty with his command during adjournment from day to day. Subject to any in- structions that may be given by the authority that appoints the court, the court "will determine the hours of holding its sessions. 82. Uniform. — For regulations regarding uniform to be worn by members of courts-martial, the judge advocate, the accused, and wit- nesses see Regulations for the Uniform of the United States Army. In any case of doubt (as where the court consists of members but recently mustered into the service), the president of the court will designate the uniform in the notice sent to members notifying them of the place and hour of meeting of the first session. 83. Seating of court. — When the court is ready to proceed it is called to order by the president. Members will be seated according to rank, alternately to the right and left of the president. The judge advocate, the accused, and his counsel are seated so as to be most easily seen and heard by all the members of the court. The reporter should be seated near the judge advocate. 84. Roll call. — At the beginning of each session the judge advocate verifies the presence or absence of the members of the court by calling each officer's name or by informally noting his presence or absence. This verification is noted in the record. (See Appendices 6, 7 for record of general and special courts-martial.) When the accused and his counsel appear before the court for the first time the judge advocate will announce their names to the court. [Note.— For number necessary to constitute a quorum of a general or special court-martial and the procedure to be taken when the number Is reduced below ee par. 7.] 85. Absence of member. — A member of a court-martial who knows, or has reason to believe, that he will, for a proper reason, be absent from a session of the court, will inform the judge advocate accord- ingly. When a member of a court-martial is absent from a session thereof, the judge advocate will cause that fact, together with the m for such absence i E known to him, to be shown in the record of 1 1' the reason for such absence is not known to the judge advocate, he will cause the record to show the member as absent, cause COURTS-MARTIAL ORGANIZATION. 45 unknown. In any event, the appointing authority will take such action, if any, relative to such absence as he may deem proper. 86. Decorum to be observed. — Trials before courts-martial will be conducted with the decorum observed in civil courts. The conduct of members should accordingly be dignified and attentive. Reading of newspapers or other evidence of inattention by members of a court-martial during its sessions constitutes a neglect of duty to the prejudice of good order and military discipline. It is the duty of the president of the court to admonish against such inattention, and charges may be preferred against a member who does not heed the admonition. A court-martial has no power to punish its members, but a member is liable to charges and trial for improper conduct as for any other offense against military discipline. Improper words used by a member should be taken down in writing and any dis- orderly conduct reported to the appointing authority. During the reading of the order appointing the court and the arraignment the judge advocate, the accused, and his counsel will stand; while the court and the judge advocate are being sworn all persons concerned with the trial, including any spectators present, will stand; when the. reporter, an interpreter, or a witness is being sworn he and the judge advocate will stand; and when the judge advocate, the accused, or his counsel addresses the court, he will rise. (For punishment for contempts, see Chapter X, Sec. I, par. 173.) 87. Control of court over accused. — A court-martial has no control over the nature of the arrest or other status of restraint of a prisoner except as regards his personal freedom in its presence. For the rela- tion between a court-martial and the accused during trial as regards arrest, see Chapter V, Section I. 88. Accused not to be tried in irons. — The accused should not be brought before the court in irons, unless there are good reasons to believe that he will attempt to escape or to conduct himself in a violent manner, but the fact that a prisoner has been tried in irons can not in any case affect the validity of the proceedings. 89. Duties of the president. — A president of the court will not be announced. The officer senior in rank present will act as such. The president does not by virtue of being such exercise command of any kind. He is in no sense the commanding officer of the court, and can not by virtue of being president give an order to a member. As the organ of the court he gives the directions necessary to the regular and proper conduct of the proceedings; but a failure to comply with a direction given by him, while it maj' constitute a neglect to the prejudice of good order and military discipline, can not properly be charged as a violation of the sixty-fourth article of war. (Digest, p. 508, VI, G, 3.) Neither the court nor the president is authorized to place the judge advocate in arrest. Only the proper commanding 40 MANUAL FOE COURTS-MARTIAL. officer can impose an arrest. It is the duty of the commanding officer to secure the attendance of the accused before the court. (Digest, p. VII, C, - ; id., VII, C, 3.) The president is the presiding officer of the court, and as -uch is the organ of the court to maintain order and conduct its business. In addition, he has the duties and privi- leges of oilier members. He has an equal vote with other members in deciding all questions, including challenges, findings, sentence, ac- quittal, and adjournments. He speaks and acts for the court in every instance where a rule of action has been prescribed by law, regulations, or its own resolution, and has no authority to open or close the court or make a ruling upon the admissibility of evidence, the competency of witnesses, or method of procedure without the acquiescence of the court or by custom of the service. He administers the oath to the judge advocate and authenticates by his signature all acts, orders, and proceedings of the court requiring it. (See Winthrop, p. 249.) It is his duty to take the proper steps to insure prompt trial and disposition of all charges referred for trial and to keep the court advised thereof. [Note.— For the duties of the president with respect to protecting the rights of the accused, see paragraphs 149 <::> (h), 154 (d), 154 (< I, and 215, and wit! respect to protecting an Ignorant witness, see paragraph 234.] (C. .!/. 0. M.. No. ',.) 90. Voting. — Members of a general or special court-martial, in giving their votes, shall begin with the junior in rank. (A. W. 31.) In all deliberations, including those on challenges, findings, sentence, acquittal, and adjournments, the law secures the absolute equality of the members, the president having no greater rights in such mat- ters than any other member. A tie vote on the findings is a vote of " not guilty " ; a tie vote on a proposed sentence or on a challenge or any objection or motion is a vote in the negative. The sentence is not adopted and the challenge, objection, or motion is not sustained. When the offense charged includes a minor offense, voting shall first be had upon the major offense. All convictions and sentences (other than those involving death), whether by general or special court-martial, may be determined by a majority of the members present. (A. W. 43.) Refusal to vote on any question arising during the proceedings constitutes a neglect to the prejudice of good order and military discipline punishable under A. W. Co. (For voting on findings and sentence, see Chap. XII, Sec. II.) 91. Closed sessions. — Members take an oath not to disclose or dis- cover the vote or opinion of any particular member of the court- martial. (See A. W. 19.) In order to avoid disclosing or discov- ering such vote or opinion the court is closed while voting upon any question. When the court is closed all persons (including the judge advocate) withdraw. In important cases, where delay would ensue Government. (Digest, p. r>0(>, V, G, 5.) Should the accuse ! i the appointment as his counsel of an officer .stationed at tl 52 MANUAL FOR COUR'I S- M AKT1AL. where the court sits, and such officer be not a member of the court, the commanding officer will appoint such officer as counsel if he is Qably available. Should the commanding officer decide that the officer desired by the accused is not reasonably available, the ac- ■:il to the officer appointing the court, whose decision shall be final. II" the counsel desired bj the accused is not ond< r the i ontrol of the commanding officer where the trial is held, application for counsel will be submitted by the accused in writing to the ap- pointing authority, whose decision as to whether the officer desired- is "reasonably available" is final. Officers of the Judge A.dvo General's Department are not available for appointment as counsel for the defense in trials by courts-martial. 109. Duty of officer as counsel. — An officer acting as counsel before a ,il or special court-martial should perform such duties as usually devolve upon the counsel for a defendant before civil courts in criminal cases. He should guard the interests of the accused by all honorable and legitimate means known to the law, but should not obstruct the proceedings with frivolous and manifestly useless ob- jections or discussions. 110. Right to interview the accused. — An accused, even if in close st, will be allowed to have such interviews with his counsel, mili- tary or civil, as may be required in order to prepare his defense. Counsel will also be permitted to have interviews with any other person who may be a witness for the accused, or whose knowledge of facts may be useful to the accused in preparing for trial. 111. Witnesses, how questioned during trial.— If the judge advocate personally prepares the record the counsel will be required to re- duce his questions and arguments to writing; but if the court has a stenographic reporter, the counsel will be allowed to question wit- ami address the court orally. Section V. REPORTER. 112. Employment.— Under such regulations as the Secretary of War may from time to time prescribe, the president of a court-martial or military commission, or a court of inquiry, shall have power to appoint a reporter, who shall record ih>' proceedings of and testi- mony taken before such court or commission and may set down the e, in the first instance, in shorthand. (A. W. L15.) Reporters will be employed onlj when authorized by the appointing authority. They will not be authorized for special courts-martial, except when the appointing authority directs that the testimony be reduced to w riting. [Notb.— For form "f oath for reporter see par. 131 I COURTS-MARTIAL ORGANIZATION. 53 113. Compensation — Decisions. — The reporter shall be paid at the following rates of compensation by the Quartermaster Corps on vouchers certified to be correct by the judge advocate or recorder: (a) For each case not to exceed $1 an hour for time actually spent in court during the trial or hearing, except when the court or com- mission sits less than three hours during the first day. when the allowance for such day shall be $3. Time will be reckoned to the nearest half of an hour. • (//) Fifteen cents for each 100 words for transcribing notes and making that portion of the original record which is typewritten; but no allowance shall he made for the first carbon copy of that portion of the record which is typewritten or for original papers which are appended as exhibits. (c) Ten cents for each 100 words for copying papers material to the inquiry, and 2 cents for each 100 words for each carbon copy of the same, when ordered by the court or commission for its use. (d) Two cents for each 100 words for the second and each addi- tional carbon copy of the record when authorized by the convening authority. (e) Except for such part of the journey as may be covered by Government transportation, mileage at the rate authorized for a civilian witness not in Government employ and $3 a day for ex- penses 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 referred to the court or commission, shall be allowed the reporter for himself, and, when ordered by the court or commission, for each necessary assistant. (/) "When a stenographic reporter is authorized for a special court-martial only one copy of the proceedings will be required, and for transcribing notes and making that part of the record of a trial by special court-martial which is typewritten, the reporter, other than an enlisted man. shall receive 13 cents for each 100 words. [Note. — The following decisions regarding compensation of reporters will be observed in preparing vouchers: i'i) The payment t<> a reporter of impleted by him is not authorized when more than one ease is disposed of in one day. each case re- quiring less than three hours in which to ho completed, but simply guarantees the reporter at least *■'*> for each day that the court or commission sits when a now ease is taken up for that day. (dr. 81, War Dept, 1908.) i'/i in determining tin- period for which a reporter is entitled to the allow- ance of $3 a day for expenses when kepi away from his usual place of employ- ment time should be counted from the date on which he is required to leave his usual place of business by the terms of his employment to the date of bis return thereto, provided there he no unnecessary delay in the travel to and from the place where the court meets. (Par. 1244, Manna! (}. M. Corps, 1916.) i' i The fact thai a reporter returns each uighi to his home doe- do! pre- clude the view that he was kept away from his place of business for 24 hours. not, however, entitled to mileage for such journeys unless the sessions of the court are held on noucousecutive days. (Op. J. A. C, Sept. 7, 1910.) 6-i -MAM'AL FOR COURTS-MA ItTIAL. I a reporter Bervlng two Beparate courts-martial on the same day is en- titled to have hla alio cept mileage) computed separately for each court (Op. J. a. <;.. Oct IB, L910.) (■ | a reporter duly employed, but who, after arrival at court, performs no service, owing to adjournment is entitled to mileage, $3 for constructive service, i the additional $3 if kepi away from place of business for 24 hours. (Op. .1. A. (,.. Feb. in LOU : June 4, 1914.) The abbreviations "Q., M standing for the word question, ami "A.," Btai.'linu' I'm- the word answer, ami ail dates as "25th" and " 1914" will each intcd as one w.>rd. Punctuation marks will not be counted as a word. It is nol necessary t'<>r (lie judge advocate to count the actual number <>f words on everj page to justify him in certifying the account of the reporter, lie may ascertain the total number of words by counting the words on a sufficient number of pages to enable him to ascertain a fair average of the number <>f words on a page ami then ascertain the total by multiplying this average by the number of pages. (Op. J. A. G., Oct. 22, 1909; Feb. S, 1915.)] 114. Disposition of vouchers. — The original voucher for payment of the reporter will lie properly completed and certified by the judge advocate ami will be sent for payment to the nearest disbursing quartermaster. A carbon copy of the voucher will be forwarded with the record for the information of the appointing authority. [Note. — For form of voucher for payment of reporter, see Appendix IS.] 115. Detail of soldier. — A soldier may be detailed to serve as a steno- graphic reporter for general courts-martial, courts of inquiry, and military commissions, and while so serving shall receive extra pay at the rate of not exceeding five cents for each one hundred words taken n shorthand and transcribed, such extra pay to be met from the annual appropriation for expenses of courts-martial. (Act of A.ug. L'k 1912, ."-7 Stat.. 575.) Such detail will be made only when a re- porter is authorized by the appointing authority. (CM. t '. J/...Y ■. .;. ) 116. Time limit for completing record. — The judge advocate or recorder shall require the reporter to furnish the typewritten record of the proceedings of each session of the court or commission (together with one carbon copy of the same) not later than twenty-four hours after the adjournment of that session. The complete record will be fn [shed, 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. 117. Carbon copies of the record. — Whenever a record of a trial of pal court-martial is to be typewritten by a reporter, the judge o ate will inform the accused of his right to demand a copy of the record, and will require of him a statement as to whether or not he desires a copy. II' the answer be in the affirmative, the judge ■■!•' will c reporter to prepare a carbon copy; this copy will be turned over to the accused. 11* the answer be in the negative, no carbon copy will be prepared. In either case, notation of the OCl ion takeii'will be made on the index sheet of the record. ( See form for record of general court-martial, Appendix 6.) In case of joint trials, the judge advocate will, in case a stenographer is employed, COURTS-MARTIAL — ORGANIZATION. 55. have one copy of the record ma.de for each of the accused requesting the same. When records of trial by general court-martial are type- written, the copyable ribbon will be used. (C. M. C. J/., No. 1.) 118. Extra compensation for clerical duties. — Xo person in the mili- tary or civil service of the Government can lawfully receive extra compensation for clerical duties performed for a military court, except as a reporter duly appointed or detailed as such, as provided in paragraphs 112 and 115, swpra; and, except as authorized in para- graph 115, no person in the civil or military service will be entitled to extra compensation for service as a reporter unless such service is rendered in time outside of the business hours of his regular em- ployment and does not interfere with his performance of his regular duties. {C. V. 0. V.,Xo. I) Section VI. INTERPRETER. 119. Employment and pay. — Under such regulations as the Secretary of "War may from time to time prescribe, the president of a court- martial or military commission, or court of inquiry, or a summary court, may appoint an interpreter, who shall interpret for the court or commission. (A. W. 115.) Interpreters may be employed when- ever necessary without application to the appointing authority. They will be allowed the pay and allowances of civilian witne which will be paid- by the Quartermaster Corps on vouchers certified by the judge advocate or recorder. [Note. — For oath of interpreter see par. 130. ] CHAPTER VIII. COURTS-MARTIAL— ORGANIZATION. (Continued.) Section I : Challenges '"J 120. Occasion for 57 L2 ! Grounds for challenge ^ 8 (a) Principal challenges, (1) to (8) 58 (b) Challenges for favor ;) 8 122. ( hallenge of new member ;j8 123. < hallenge by judge advocate ^ 9 124. Member can not challenge 59 125. Procedure upon challenges 59 V2<]. Member disqualified but not challenged 53 127. Waiver of objection 59 128. Liberality required ° 9 1 29 . Member as accuser or witness for the prosecution 60 130. Member signing charges — when accuser 60 131. Member of court as witness 60 Section T I : Oaths 61 132. < >ath of members G1 (a) Oath, (b) Affirmation, (c) Court sworn for each case, (rf) Addi- al ceremony, (e) Decorum in administering oath 61 133. Oath of judge advocate 62 134. Oath of witness 62 (a) Oath, (b) Swearing judge advocate 62 135. Oath of reporter 62 136. Oath of interpreter 62 137. Oath to test competency 62 138. Oaths for administrative purposes 63 ; S. 183, (6) A.W. 114 63 Section 111: Continuances 63 139. Authority for - 63 MO. Reason for application to be stated 63 141. Number of continuances ' Section IV: Completion of organization '■* 142. When accomplished 64 Section I. CHALLENGES. 120. Occasion for.— The composition of the court-martial havii made known to the accused by the reading of the appointing order, together with any orders which have operated. to modify the compo- 57 58 MANr.U. FOR COUBTB-MABTIAL. sition of the court as originally constituted, he is asked by the judge advocate whether he objects to being tried by any member present named in the order and modifying orders. If his reply be in the negative, the court and judge advocate are sworn: if, on the other hand, the accused has objection to a member, he exercises his right in this respect by challenging, in turn, each member to whom he objects Members of ageneral or special court-martial may be challenged by the accused, bul only for cause stated to the court. The court shall deter- mine the relevancy and validity thereof, and shall not receive a chal- lenge to more than one member at a time. (A. W. 18.) Neither a summary court officer nor the judge advocate of a general or special court-martial is subject to challenge. (Digest, p. 502, IV, X; Davis, p. 85, n, 3.) [Note. The various classes of challenges recognized at common law have been practically reduced In courts-martial practice to two, viz, (1) principal challenges or those where the member must be excused upon proof of the ground tor challenges as alleged; (2) for favor, where the court must decide whether the facts proved constitute cause to excuse the member.] 121. Grounds for challenge— (a) Principal challenges.— In the follow- ing cases a member will be excused when challenged upon proof of the fact as alleged: (1) That he sat as a member of a court of inquiry which investi- gated the charges. ( 2 ) That he has personally investigated the charges and expressed an opinion thereon, or that he has formed a positive and definite opinion as to the guilt or innocence of the accused. ( 3 ) That he is the accuser. i I ) That he will be a witness for the prosecution. ( :>) That (upon a rehearing of the case) he sat as a member on the former trial. (G) That, in the case of the trial of an officer, the member will be promoted by the dismissal of the accused. | 7 i That he is related by blood or marriage to the accused. (8) That he has a declared enmity against the accused. (b) Challenges for favor. — Where prejudice, hostility, bias, or inti- mate personal friendship are alleged it is for the court, after hearing the grounds for challenging stated and the reply, if any, of the chal- lenged member, as well as any other evidence presented, to determine whether the grounds stated and proved or admitted are sufficient in fact to disqualify a challenged member. 122. Challenge of new member. — Where new members join or are added to the court after its organization the order detailing such new members should be read to the accused and he should be given full opportunity to challenge. The record will show affirmatively that the right has been accorded the accused to challenge every member of the court. COURTS-MARTIAL ORGANIZATION. 59 123. Challenge by judge advocate. — There is no statutory authority for a challenge by the judge advocate, bat under the custom of the service after the accused has fully exercised his right of challenge the judge advocate may also challenge for cause in the same manner as the accused. (Digest, p. 502, IV, O.) 124. Member can not challenge. — There is no authority of law or cus- tom of the service for a member of a court-martial to challenge another member, but where one member has knowledge of the fact that another is the accuser in the case or will be a witness for the prosecution he will bring the fact to the attention of the court in order that proper action may be taken. (See par. 129, below.) 125. Procedure upon challenges. — A positive declaration by a member challenged on the ground of prejudice or interest that he is not prejudiced against the accused nor interested in the case is ordi- narily satisfactory to the accused, and, in the absence of material evidence in support of the objection, will justify the court in over- ruling it. If, however, the statement is unsatisfactory, or the mem- ber makes no response, the accused may offer testimony in support of his challenge or may subject the challenged member to an exami- nation under oath as to his competency as a member. In such a case the judge advocate administers the oath to the challenged member. The accused and other witnesses may be cross-examined, witnesses may be introduced in rebuttal by the judge advocate and arguments may be made. The whole proceedings, will, in the case of a general court-martial, appear in the record. During the deliberation of the court the challenged member will withdraw. If but four mem- bers remain they may pass upon the challenge. ( See Chap. II, Sec. II. ) [Note. — For form of oath to be administered to a challenged member see par. 137.] 126. Member disqualified but not challenged. — In the absence of a chal- lenge the court of itself can not excuse a member from sitting on the trial of a case, but a member not challenged, who thinks himself disqualified for reasons other than those indicated in paragraph 1 29, below, may announce in open court his supposed disqualification, in order that he may be challenged; or he may apply to the appoint- ing authority to be relieved. 127. Waiver of objection. — The rule is that challenges should be made before the arraignment, and if an objection to the comptency of a member was known at that time and not made, it will be considered as waived; but if the cause of a member's incompetency was net known at the time of arraignment or did not arise until later, court will entertain a challenge based on such cause, at any stage of the proceedings. 128. Liberality required.— Courts should be Liberal in passing upon challenges, but they will not entertain an objection that is not spe- 60 MANUAL FOR OOTTETB MABTIAL. cific, and they should be reluctant to sustain one upon the mere ikhi (it* the accused, except where it is admitted 1>\ the chal- : member. 129. Member as accuser or witness for the prosecution. — No officer shall be eligible to sit as a member of a general or special court-martial when he is the accuser or a witness for the prosecution. (A. W. I A.fter the accused is brought before the court, preferably before the court is -worn, any member thereof who is or believes himself to be the accuser in the case will formally announce that fact t-> the court, whereupon he will be excused. When the accused, his counsel, the judge advocate, or any member of the court, at any time before the finding, shall have reason to believe that any member thereof is the accuser in the case, or may be called as a witness for the prosecution, such belief shall be communicated to the court, and, if the court, after hearing the facts, find that such member is the accuser or is to be called as a witness for the prosecution, he shall be excused. If at any stage of the proceedings prior to the findings any member of the court be called as a witness for the prosecution, he shall, before qualifying as a witness, be excused from further duty as a member. 130. Member signing charges — When accuser.— Whether or not an officer is the accuser in a particular case is a question of fact. If. notwithstanding his ineligibility, he does sit as a member of a gen- eral or special court-martial, the proceedings are uecessarily invalid. (A. W. 8, 9; Op. J. A. G., Oct. 11. 1913; id.. Nov. 13, 1913, Bull. War Dept., L913, p. 6.) An officer may he ordered by superior authority to prefer and sign ;. charge. The action of the officer preferring and signing the charge may be purely ministerial and represent no conviction whatever on his part that an offense has been committed, or that if an offense has been committed it was committed by the person charged. In such a case the accuser is not, in fact, the officer signing the charge, but the officer who directs the preparation and signing of the charge. The former is, therefore, not within the prohibition of the statute. The officer who has signed the charge in a particular case is. however, prima fa iccuser in thai case, and therefore ineligible to sit as a member of the trial court. (Op. J.A.G., Feb. 20, L91 '. Bull. 8, War Dept., L91 t,p.6.) If in such a case the court should decide that he is eligible, a!! the c idence upon which the COUrt reached its decision will, in the case of a <: N Vol court- martial, be made of record, and in the case of a si»'-/'u> case is tried by tin 1 same court, the oath mus1 he administered anew Poi each case. 62 MAXl'AL FOR COUirrS-MAP.TIAL. (d) The oaths or affirmations prescribed in A. W. 19 for the members, the judge advocate, a witness, and others will always be administere i. but in addition there may be such additional ceremony or acts as will make the oath or affirmation binding on the conscience of the person taking it. (e) For decorum to be observed during the administration of oaths, see Chapter VII, Section I. 133. Oath of judge advocate.— When the oath or affirmation has been administered to the members of a general or special court-martial, the president of the court shall administer to the judge advocate and to each assistant judge advocate, if any, an oath or affirmation in the following form (A. W. 19) : You, A. B., do swear (or affirm) that you will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed by the same. So help you God. 134. Oath of witness.— (a) All persons who give evidence before a court-martial shall be examined on oath or affirmation in the follow- ing form (A. W. 19), administered by the judge advocate: You swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God. (b) If either the judge advocate or assistant judge advocate is to testify, the oath or affirmation will be administered by the other or by the president. 135. Oath of reporter. — (a) Every reporter of the proceedings of a court-martial shall, before entering upon his duties, make oath or affirmation in the following form (A. W. 19), administered by the judge advocate: You swear (or affirm) that you will faithfully perform the duties of reporter to this court. So help you God. (b) For authority for hiring reporters, and compensation, see Chapter VII, Section V. 136. Oath of interpreter. — Every interpreter in the trial of any case before a court-martial shall, before entering upon his duties, make oath or affirmation in the following form (A. W. 19), administered by the judge advocate : You swear (or affirm) that you will truly interpret in the case now in hearing. So help you God. 137. Oath to test competency.— When a member of a general or special court-martial is challenged and it is desired to question him regard- ing his eligibility to sit as a member in the trial of a case, the judge advocate will administer to him the following oath: You swear that you will true answers make to questions touching your competency as a member of the court in this case. So help you God. COURTS-MARTIAL ORGANIZATION. 63 138. Oaths for administrative purposes. — (a) 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, Navy, Marine Corps, or Revenue-Cutter Service de- tailed to conduct an investigation, and the recorder, and if there be none the presiding officer, of any military, naval, or Revenue-Cutter Service 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. (R. S. 1S3, as amended by the act of Feb. 13, 1911, 36 Stat., 898.) (b) Any judge advocate or acting judge advocate, the president of a general or special court-martial, any summary court-martial, the judge advocate or any assistant judge advocate of a general or spe- cial court-martial, the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conduct an investigation, and the adjutant of any command shall have power to administer oaths for the purposes of the administration of military justice and for other purposes of mili- tary administration; and in foreign places where the Army may be serving shall have the general powers of a notary public or of a consul of the United States in the administration of oaths, the execu- tion and acknowledgment of legal instruments, the attestation of documents, and all other forms of notarial acts to be executed by person.s subject to military law. (A. W. 111.) Section III. CONTINUANCES. 139. Authority for. — A court-martial may, for reasonable cause, grant a continuance to either party for such time and as often as may appear to be just. (A. W. 20.) If before the first meeting of the court a continuance is deemed necessary by either party, application therefor should be made to the appointing authority, but if made after assembling the application will be made to the court. When application is made to the court for an extended delay which appears to be well founded, it may be referred to the appointing authority in order that he may determine whether the court should grant it or whether he should dissolve the court. 140. Reason for application to be stated. — The party desiring a con tinuance must state the reasons upon which his application is ba When it is desired because of the absence of a wil tinctly show that the witness is material, that he has used due dili- gence to procure the testimony or attendance of the witness, and thai he has reasonable ground to believe that he will he able to pr< £4 • COURTS M.J.i I dance within a reasonable time, which time shall be stated. 141. Number of continuances.— Tl te number of continuances which may be granted is no1 Limited, but where extended delays will ensue the court will be justified in exacting proof of due diligence on the of the party requesting the same, and may even require the rea- ider oath if it has reason to suspect that the in- tention is merely to delay the proceedings. Section IV. COMPLETION OF ORGANIZATION. 142. When accomplished. — The court hu\ ing met, the accused and his counsel having been introduced, the reportei sworn, the convening order read, the right of challenge accorded, and the court ar-d judge advocate sworn, the organization of the court is complete for the trial of the case. CHAPTER IX. COURTS-MARTIAL— PROCEDURE DURING TRIAL. rage. Section I: Arraignment 65 143. When made 65 144. Procedure 66 Section 1 1 : Pleas 66 145. Kinds of pica-' 66 Lction; (b) in abatement; (c) in bar of trial; (d) to the general issue C6 146. Plea to the jurisdiction 66 Grounds for, enumerated, (a) to (d) 66 147. Pica in abatement 67 148. Pica in bar of trial 67 149. Statute of limitations 67 1 . Definition 67 2. I. imitations as to time, (a) to (d) 67 3. Limitation a> to number of trials, (a) to (h) 68 150. Pardon "0 i ondonation 70 Lai pleas 70 (a) Former punishment 70 (b) Illegal enlistment 70 (c) Release from arrest 70 (J) Other forms of inadmissible pleas 71 1 pleas 71 Procedure, (a) to (d) 71 154 . Plea3 to the general issue 72 Di - ■!. (a)to(<7) 72 : a! to plead 73 Action » 73 ii IV: Motions 74 156. Motion to sever : 74 157. Motion to elect 74 74 Section I. ARRAIGNMENT. 143. When made. — On the shearing in of the members and the judge •ion of the court is complete for the trial of n before the court. In each case ti ointing order must be read anew, a new opportunity 66 66 MANUAL FOR COURTS-MARTIAL. to challei be given, and the members, judge advocate, re- porter, and interpreter must be sw< in anew. In each case the pro- la- complete \\ ithout reference to any other case. 144. Procedure. — The court being organized, and both parties ready to idvocate will read tl and specifications, lately ;nul in order, to the accused and ask him how he pleads to each. The older pursued, in case of several charges or specifica- tions, will be to arraign on the first, second, etc, specif to the first charge, th< n on the first charge, and so on with the rest. The reading of the charges and specifications and the pleas of the accused in answer thereto constitute the arraignment of the accused. In Lng the charges the judge advocate will also read the name and rank of the officer preferring them. [For decorum to be observed daring the arraignment see par. S6.] Section II. PLEAS. 145. Kinds of pleas. — In court-martial procedure the usual pleas are the following: (a) Pleas to the jurisdiction; (b) pleas in abate- ment; (c) pleas in bar of trial; and (d) pleas to the general issue. The first three mentioned are also known as special pleas. These pleas should be made in the order named. (Dudley, p. 93; Bouvier's Law Dictionary, Rawle, 3d Eev., p. 2G03.) 146. Plea to the jurisdiction. — A plea to the jurisdiction denies tha right of the court to try the case. The following are grounds for a plea to the jurisdiction of a court: (a) That it was appointed by an officer who did not have the legal authority to do so (see Chap. Ill, Courts-martial — By whom ap- pointed) : (b) That it is composed wholly or in part of members not author- ized by law to sit upon such court-martial (see Chap. II, Courts- martial — Composition) ; (c) That the accused is not subject to its jurisdiction (see Chap. 1 . sons subject to military law) ; or ('/) That it has not legal power to try the oiTense charged (see Chap. XVII, Punitive articles). -V plea to the jurisdiction, if well grounded and sustained, by the coin-,. cution before the court. If well grounded and not sustained by tie' court, the proceedings may be disapproved by the appointing authority, or, even though approved, ma reviewed <>n writ of habeas corpus by a United States court, which will cause the proceedings to be set aside as illegal and void. Waiver of objection will never avail to'confer jurisdiction upon a court not COURTS-MARTIAL PROCEDURE DURING TRIAL. 67 legally possessing it, even though the accused fails to submit a plea to the jurisdiction at the proper time. 147. Plea in abatement. — A plea in abatement is based upon some defect in the charge or specification and is one that operates merely to delay the trial, such as an error in the name, rank, or organization of the accused or in the allegation as to time and place in the specifi- cation. An accused who submits a plea in abatement must show how the error may be amended. When a plea in abatment is sustained, the judge advocate will correct the charge and specifica- tion objected to so as to meet the objection, and the trial will proceed on the corrected charges. To enable him to make the correction a continuance may be granted. Matters which might have been ob- jected to by a plea in abatement will be considered as waived by pleading to the general issue. 148. Plea in bar of trial. — A plea in bar of trial, if sustained, is a sub- stantial and conclusive answer to the charge or specification to which it is addressed. Such a plea may be made on the grounds set forth in pars. 149, 150, and 151. 149. The statute of limitations. — (1) Definition. — Statutes of limita tion in criminal law are statutes of which the accused may take advantage and deprive the Government of the power to try and punish him after the lapse of a specific period since the offense was committed. They are enacted to secure the prompt punishment of criminal offenses and with a view to obtain the attendance of the witnesses at the trial while the recollection of the event is still fresh in their minds. In court-martial practice prosecutions are limited both as to time and as to number. (A. W. 39, 40.) (2) Limitations as to time. — (a) In the following cases there is no limitation as to time upon trial by court-martial (A. W. 39) viz: (1) Desertion committed in time of war; (2) Mutiny; or (3) Murder. (b) The period of limitation upon trial and punishment by court- martial shall be three (3) years in the following cases (A. W. 39) viz. : (1) Desertion in time of peace; (2) Any crime or oll'ense punishable under A. W. 93; or (3) Any crime or offense punishable under A. W. 94. (c) No person subject to military law shall be liable to be tried or punished by a court-martial for any crime or offense not enumer- ated in paragraph (a) or paragraph (5), supra, committed more thai W8 before the arraignna at of such person (A. W. 39). (d) ( : >>n of the period of limitation. — The point at and from which the period of limitation is to begin to run is the date o£ 68 MANUAL FOB I \'.. the commissi* n of the offense. The point at which the period of limi- tation is to terminate and from which said period is to be reckoned back is the date of arraignment of the accused. There must be ex- cluded in computing this period — (1) Tin f any absence of the accused from the jurisdiction of the United States; and (2) Any period during which by reason of some manifest impedi- ment the ac< used shall not have been amenable to military justice. [Notes. — "Manifest Impediment" means only such Impediments as operate to M the court rom exercising its jurisdiction, and J h con- ditio) held as u prisoner of war in the bands of the enemy, or being lmprls r the sentence of a civil court upon conviction I [n re Davison, 4 Fed. Rep., 510) ; but any eon C the evidence of their guilt or other like fraud <>n their part while they remain within the jurisdiction of the ! i States, by which the prosecution is delayed until the time the bar lias run. did uo1 d< prive them of the benefit of the statute. (14 Op. Any. Gen., 268.) i thirty-ninth article o£ war did not hav< I to authorize trial or i any crime or offense barred by the provisions of law existing at the date of its enactment, August 29, 191C] (3) Limitation as to number of trials. — (a) Xo person shall be tried a second time for the same offense. (A. W. 40.) (I) Where a person subject to military law has been once f it. The defense may be made by entering a plea in bar, or it may be made after a plea of not guilty by introducing evidence showing the facta that entitle him to the exemption. (h) In each case tried by general court-martial in which, upon the face of the record, it appears that the accused might successfully plead the statute of limitations but in which he has not interposed such plea, it shall bfl made to appear of record that the president of the court advised the accused of his legal rights in the premises. 150. Pardon. — A pardon is an act of the President which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. (See Words and Phi; vol. 6, p. 5168, and authorities there cited.) 151. Constructive condonation. — Where a deserter has been restored to duty without trial by authority competent to order his trial, this action is regarded as a constructive condonation of the offense and may be pleaded in bar of trial subsequently ordered. (Digest, p. 839, XV, D, 4.) 152. Inadmissible special pleas — (a) Former punishment.— The plea of former punishment, i. e., that he has already been adequately pun- ished for his offense by his commanding officer, is not recognized by our military law, and, when made in our military trials, has been properly overruled; but where an accused has, prior to trial, been subjected, on account of his offense, to any physical punishment, or to reduction to the ranks, or to protracted arrest, or to reprimand, or other unusual or unauthorized discipline, he may properly show the fact in evidence on the general issue in mitigation of such sentence as the court, in the event of his conviction, may impose. Except in this form, he can not avail himself of such circumstances upon his trial. (Winthrop, p. 411; 25 Op. Atty. Gen., 623 ; 28 idem., G22.) (b) Illegal enlistment. — The accused ; upon arraignment, has some- times pleaded that on account of some illegality in his enlistment, as that he was under age, or that he was enlisted for a shorter period than the law required, etc., he was not amenable to trial. But no such form of special plea is recognized in our law. If the accused, by reason of his invalid enlistment, is not duly or legally in the Army, he should, regularly, offer the facts in evidence under a plea to the jurisdiction, or bring them out under the general i.sstie. (Winthrop, p. 411.) (c) Release from arrest.— Release from arrest upon the charges and restoration to duty before trial— already noticed as not a ground for a plea of pardon or condonation (except in case of a deserter restored COURTS-MARTIAL — PROCEDURE DURING TRIAL. 71 to duty without trial) — is. similarly, no ground for a special plea in bar of trial. (Idem, p. 412.) (d) Other forms of inadmissible pleas. — Such objections (which have been taken in some cases) as that the accused, at the time of the arraignment, is undergoing a sentence of general court-martial, or that, owing to the long delay in bringing him to trial, lie is ''unable to disprove the charge or defend himself"; or that his is ac- tuated by malice or is a person of bad character — are, it need hardly be said, not proper subjects for special pleas, however much they may constitute ground for continuance, or affect the question of the meas- ure of punishment. So, as to all such objections as are properly mat- ters of defense under the general issue — for example, that the accused committed the offense charged when insane, or intoxicated, or in obedience to a military order, or under a mistake of fact or law, e t c ._these are not within the scope or purpose of special pleas in bar, nor can they properly be raised in an interlocutory form, or otherwise than upon the trial and by the testimony, being, as they are, of the very substance of the defense. (Idem. p. 412.) 153. Action upon special pleas. — (a) Each special plea should be stated briefly and clearly. It must also be supported by evidence or legal argument to show that it is well taken. The burden of sup- porting a special plea by a preponderance of proof rests on the accused. Both sides should be heard and the proceedings and argu- ments under the plea in trial by general or special court-martial led. The accused may make several special pleas to any charge ■ifieation. (b) When a special plea to the jurisdiction or in bar of trial as to all the charges and specifications has been sustained by a court, the record of the proceedings as far as had will be forwarded to the reviewing authority with a statement of reasons which, in the opinion of the court, sustain its action. If the reviewing authority is in disagreement with the court in respect of the validity of the pie;', the proceedings will be returned by him to the court, with reasons for such disagreement and with instructions to the court to reconvene and reconsider its action. To the extent that such s present issues of law, the court properly defers to the views of tli«- reviewing authority. The order returning the procedings for ration should direct the court, upon vacating its prior act; seed with the trial of the case. If the reviewing author- ity approves the action of the court in sustaining such pleas his •i will be indorsed on the proceedings and published in the final v of the case. (■ ) It" the and specification to which a special plea has I arc not capable of amendment and there are other charges and specifications in the case, the trial may proceed on the other charges and specifications. (G. O. 28, W. D., 1905.) 72 MANUAL FOB COUETS-MABTIAL. When all th< ; leas (<» a given charge or specification are overruled, the accused must plead to the general issue as to that < harge or specification. 154. Pleas to the general issue. — (a) Usually the plea of the accused "not guilty" to each charge and specification : or, guilty to a specification excepting certain words, and to the excepted words guilty; or, as when charged with an offense which includes a •: one of a kindred o Ity to the specificatii cer- words, substituting therefor certain others, to the excepted words " ii.it guilty," to the substituted words " guilty," and to tin' charge not guilty, but guilty of the lesser included offense. (5) A court-martial is authorized, in any case, in its discretion, rmit an accused to withdraw a plea of not guilty, and substi- tute one of guilty, and vice versa, or to withdraw either of these a] pleas and substitute a special plea. And wherever tli cused applies to be allowed to change or modify his plea, the court should, in general, consent, provided the application is made in faith and not for the purpose of delay. (/) A plea of guilty does not necessarily exclude the taking of evidence, on behalf of either the accused or the prosecution, or at the request of the court. In cases where tliv punishment is discretionary a full knowdedge of the circumstances attending the offense is es- ial to the court in measuring the punishment, and to the review- ing authority in acting on the sentence. In cases where the punish- ment is mandatory^ a full knowledge of the attendant circumstances is necessary to tin- reviewing authority to enable him to comprehend the entiie case and correctly judge whether the sentence should be approved or disapproved or clemency granted. The court should therefore take evidence after a plea of guilty, except when the specification is so descriptive as to disclose all the circumstances of mitigation or aggravation. When evidence is taken after a plea of "guilty"', the witnesses may be cross examined, evidence may be pro- I to rebut their testimony, and the court may be addressed by the prosecution or defense on the merits of the evidence and in ex- tenuation of the offense or in mitigation of punishment. After a plea of guilty the accused will always be given an opportunity to offer evidence in mitigation of the offense charged if he desires to do so. ('/) In each case tried by a general court-martial in which the accused enters a plea of guilty in whole or in part as to any charge or specification the president of the court shall explain to him as to thai pari : . The various elements which constitute the offense charged, i forth in Chapter XVII, defining the punitive articles of war; and COURTS-MARTIAL — PROCEDURE DURING TRIAL. 73 Second. The maximum punishment which may be adjudged by the court for the offense to which he has pleaded guilty. The accused will then be asked whether he fully understands that by pleading guilty to such a charge or specification he admits having committed all the elements of the crime or offense charged and that he may be punished as stated. If he replies in the affirmative, the plea of guilty will stand ; otherwise a plea of not guilty will be entered. The explanation of the president and the reply of the accused thereto shall appear in the record. The same rule will apply in cases tried by special court-martial when the evidence heard is made of record. (e) When the accused pleads "guilty," and, without any evidence being introduced, makes a statement inconsistent 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. The most frequent instances of inconsistency are in cases involving a specific intent, as in desertion, larceny, etc. In such cases, where after a plea of guilty the accused makes a statement, the latter should be carefully scrutinized by the court, and if in the case of desertion in any part there is a statement that the ac- cused had no intention of remaining away, that he expected to re- turn when he had earned some money, or that when arrested he was on his way back to his organization, etc.; or, in the case of larceny, that he intended to return the property alleged to have been stolen, etc., the court should direct the entry of a plea of " not guilty," but the criminality of an intent once formed is not affected by a subse- quent change of intent. (/) A plea of "guilty without criminality" is irregular and con- tradictory. (Winthrop, p. 414.) It is practically equivalent to a plea of " not guilty " and the court and judge advocate should pro- ceed as if that plea were entered. Unless a plea of guilty is unquali- the prosecution must prove all allegations that are not specifi- cally admitted by the accused. (g) Insanity at the time of the commission of the acts charged is a defense which may be properly made under a plea of not guilty. Insanity at the time of arraignment, or at a later stage of the trial, proper ground for the arrest of further proceedings on the charges. (See par. 219.) Section III. ■ REFUSAL TO PLEAD. 155. Action. — When the accused, arraigned before a court-martial, from obstinacy and deliberate design stands mute or answers for- eign to the purpose, the court may proceed to trial and judgment as if he had pleaded not guilty. (A. W. 21.) If the court finds that the failure to plead is the result of insanity, it will proceed as indi- cated in Section II, paragraph 154 (g) , supra. 74 MANUAL FOB COURTS-MARTIAL. noN rv. MOTIONS. 156. Motion to sever. — A motion to sever la a motion by one of two or more ;'( •! to be tried separately from the other or othei -. li '.ill regularly be made ai the arraignment. Except where the ice of the charge is combination between the parties (as in mutiny), the motion may properly be granted for good cause shown. The more common grounds of motions for severance are that the mover desires to avail himself on his trial of the testimony of one or Hi accused, or of the testimony of the wife of one. or that the defenses of the other accused are antagonistic to his own. or that the evidence as to them will in some manner prejudice his defense. This motion has rarely been presented to the court in our military practice. Where the prosecution desires to use one of two or more joint accused as a witness against another or others, the practice is not to move to sever, but. by order of the convening authority, to withdraw charges as to such one. (See Winthrop, p. md authorities there quoted.) 157. Motion to elect. — The prosecution is at liberty to charge an act under two or more forms, where it is doubtful under which it will more properly be brought by the testimony. 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> (Digest, p. 504, V, F.) 158. Nolle prosequi. — A nolle pros* qui is a declaration of record on the part of the prosecution that it withdraws a charge or specifica- tion from the investigation and will not pursue the same furthei at the present trial. This authority can only be exercised by the superior who, as the representative of the United States, ordered the court, and in a proper case he may, on his own initiative or on appli- cation duly made to him, instruct the judge advocate to enter a nolle The principal grounds for this proceeding when duly authorized will be — (a) The fact that the charge or specification is discovered to be mtially defective and insufficient in law, or ('V) That it is ascertained that the allegations can not be proved, or (c) That the testimony available is not sufficient to sustain them, or t Issue of such, process by a judge advocate, a summary court-martial will be understood to he Included.] J P 0. Service of subpoena. — A subpoena for the attendance of a civilian witness is issued in duplicate. It may be legally served by either a person in the military service or a civilian. Usually, service is made by an officer or noncommissioned officer. Service is made by personal delivery of one of the copies to the witness. The proof of service is made by indorsing on the remaining copy a sworn statement that service was made. (For service by mail and acceptance of same, see par. 104, below.) After making service a copy of the subpeena will be promptly returned to the judge advocate of the court, with the proof of service. If the witness can not be found, the judge advocate should be promptly so informed. A judge advocate can not subpoena a civilian witness to appear before himself for preliminary examina- tion. —For form of subpoena and proof of service, see Appendix 13.] 161. Summoning of witnesses. — The judge advocate will summon the necessary witnesses for the trial, but will not summon witnesses at the expense of the ( rovernment without the order of the court, unless Bed that their testimony is material and necessary. In order that I may no! be denied a full opportunity to make his def< any witness requested by him is usually summoned. But a reason- able discretion should be exercised where the summoning of the nim> COUETS-MAETIAL WITNESSES AND DEPOSITIONS. 79 ber of witnesses requested by the defense would result in an unreason- able inconvenience or expense to the Government. In such instances the judge advocate should ascertain whether the testimony required of the witness is not merely cumulative, or as to an unimportant point that one witness would be sufficient to render conclusive, or as to which the judge advocate would be willing to admit the facts ex- ported from the witness's testimony. 162. Advance notice to witnesses. — The judge advocate will endeavor to issue subpoenas to civilian witnesses and to make request for the attendance of military witnesses at such time as will give each witness at least 24 hours' notice before starting to attend the meeting of the court. 163. Attendance of military witnesses. — The attendance of persons in the military service stationed at the place of meeting of the court, or so near that no expense of transportation will be involved, will ordinarily be obtained by informal notice served by the judge advo- cate on the person concerned that his attendance as a witness is desired. If for any reason formal notice is required, the judge advocate will request the proper commanding officer to order him to attend; but, if mileage is involved, the department commander or other proper superior will be requested to issue the necessary order. Fees will not be paid to military witnesses on the active list, and they are entitled only to the mileage allowances due them under their travel orders. The attendance as witnesses of persons on the retired list (not assigned to active duty) should be obtained in the same manner, and they are entitled to the same fees and mileage as civilian witnesses not in the Government employ. No travel order will be issued in such cases. 164. Procedure to secure attendance of civilian witness. — Unless he has reason to believe that a formal service of subpoena will be required, the judge advocate will endeavor to secure the attendance of a civilian witness by correspondence with him, sending him duplicate subpoena properly filled out, with a request to accept service on one tg the printed statement, "I hereb; service of the ab<>'. ia," and to return same to the judge advocate. for which purpose a return ad envelope should be inclosed. Ordinarily there will be no difficulty in securing the vol- untary attendance of a civilian witness if he is informed that his and mileage will not be reduced by reason of his voluntary attendance, and that a voucher for his fees and mileage going to and r,>t ' ' the place of the sitting of the court-martial will be delivered to him promptly on being discharged from attendant the court. If such informal methods arc ineffective, formal dupli- cate subpoena will be issued by the judge advocate with a view to service on the witness. If the witness is at or D post where 80 OB COURTS-MARTIAL. ervice will be by the judge advocate or by ii designated by him. If the witness is not at or near the :i is sitting, but or near another military command, or detachment, the judge advocate will send the duplicate subpoena direct to the commanding officer of such post, command, or detachment, requesting service of the same. CTpon receipt of the request the officer receiving it will serve the subpoena or cause it to 1" -.rvr.1. The service will be made without delay, and the retained copy of the subpoena, with proof of service indorsed od it. will be senl at once direct to the judge advocate. If in any instance travel is necessary to serve the subpoena, a request will promptly be made by the commanding officer of the post, command, or detachment, on the proper authority for travel orders. If the witni act reside near a post, command, or detachment, the subpoena will be sent direct to the department or other proper commander requesting service of the same. 165. When accused must be confronted with witness. — Depositions can not be introduced by the prosecution in capital cases. (See A. W. 25, Chap. XT. Evidence, and Chap. IV, Sec. III.) In such cases, fc] fore, as well as in others in which the judge advocate believes that the interests of justice demand that the accused be confronted by a witness against him, or believes that for any reason a witness should testify in the presence of the court, he will take the necessary steps to secure the attendance of such witness or witnesses. 166. Procedure to obtain books, documents, or papers. — If a civilian has in his possession a book, document, or paper desired to be introduced in evidence, a subpoena duces tecum will be prepared and issued by advocate, directing the person to appear in court and to v with him such book, document, or paper, which should be de- scribed in sufficient detail to enable it to be readily identified. [Note. — r<>r form, see Appendix 13.] 167. Civilian witness in confinement. — The testimony of a witness who is in confinement in the hands of the civil authorities will ordinarily be obtained by means of a deposition (A. W. 25), but if for any rea- son it is necessary that such a witness testify in court, an endeavor should be •• advocate to make arrangements with the civil authorities to obtain his appearance. 168. Warrant of attachment. — In view of the provisions of A. W. 23 providing for the punishment on information before a district court of the United States or in a court of original criminal jurisdiction in any of (lie territorial p< ssessions of the I Fnited State: of a civilian who willfully neglects or refuses, after he hi luly subpoenaed} COURTS-MARTTAL WITNESSES AND DEPOSITIONS. 81 to appear as a witness before any military court, commission, court of inquiry, or board, circumstances requiring the issue of a warrant of attachment will be very rare. (For form, see Appendix 11.) Whenever it becomes necessary to issue a warrant of attachment, the judge advocate or summary court-martial will direct or deliver it for execution to an officer designated by the department commander for the purpose. (12 Op. Atty. Gen., 501.) As the arrest of a per- son under a warrant of attachment involves depriving him of his liberty, the authority for such action may be inquired into by a writ of habeas corpus. For this reason the officer executing the war- rant of attachment should be provided with the following papers to enable him to make a full return in case a writ of habeas corpus is served upon him : (a) A copy of the charges in the case, sworn to be a full and true copy of the original by the judge advocate of the court (or summary court-martial). (b) A copy of the order appointing the court-martial, sworn t<> be a fall and true copy of the original by the judge advocate of the court (or summary court-martial). (c) The original subpoena, showing proof of service of same. (d) An affidavit of the judge advocate or summary court-martial that the person being attached is a material witness in the case; that he has failed and neglected to appear, although sufficient time has elapse! for that purpose; and that no valid excuse has been offered for such failure to appear. (e) The original warrant of attachment. In executing such process it is lawful to use only such force as may be necessary to bring the witness before the court. Whenever force is actually required the post commander nearest the residence of the ness will furnish a military detail sufficient to execute the process. 169. Habeas corpus proceedings in connection with attachments.— If, in executing a warrant of attachment, the officer detailed for that purpose should be served with a writ of habeas corpus from any United States court, or by a United States judge, for the production of the witness, 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 serv- lirect to The Adjutant General of the Army and to the command- general of the department. (See Appendix 15, Form A.) (b) If, however, the writ of habeas corpus is issued by any State court (or a State judge) it will be the officer's duty to make respectful return, in writing, informing the court that he holds the person named in the writ by authority of the United States pursuant to a warrant of attachment issued under section 3 of the act of Congress . ;°— 18 7 82 MANUAL FOB COUKXS-MABTIAL. approved August 29, L916 (A. W. 22), by a judge advocate of a law- fully convened general or special court-martial (or by a summary court-martial), and that the Supreme Court of the United States has decided that State courts and judges are without jurisdiction in such cases, (See Appendix 15, Form B.) After having made the above return to a \\ rit issued by a State court or judge, it is the duty of the officer to hold the prisoner in custody under his warrant of attachment, and to i dience to the mandate or process of any government except that of the United States. 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. 170. Punishment for refusal to appear or testify. — Although the of a \\ itness as above described can be enforced, there is nc power in a court-martial itself to compel a witness to testify or to punish him for not testifying. The only procedure is that provided in A. W. 23, as follows: Every person not subject to military law, who being duly sub o appear as a witness before (a) any military court, com- sion, court of inquiry, or board, or (b) any officer, military or civil, designated to take a deposition to be read in evidence In such court, commission, court of inquiry, or board, willfully (a) neglects or refuses to appear, or (b) refuses to qualify as a witness, or to testify, or (c) produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States, or in a court of original criminal jurisdiction in any of the Territorial possessions of the United States, jurisdiction being hereby conferred upon such courts for such purpose; and it shall be the duty of the United States district attorney or the oflicer prosecuting for the Government in any such court of original criminal jurisdiction, on the certification of the facts to him by the military court, commission, court of inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shall be a fine of not more than $500. or imprisonment not to exceed six months, or both, at the discretion of the court: Provided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the United States, shall be duly paid or tendered said witness, such amounts to be paid out of the appropria- tion for the compensation of witnesses. (A. W. 23.) [Nora, ir :m officer who is charged with serving a subpoena pays the neces- s:iry fees and mileage to a witness, taking a receipt therefor, lie is entitled to reimbursement. (Dec. Comp. Treas., Sept. 10, 1901, published in Cir. 38, A. e <)., 1901.)] COURTS-MARTIAL WITNESSES AXD DEPOSITIONS. 83 171. Same in Philippine Islands. — Every person not belonging to the Army of the United States, who, in the Philippine Islands, being duly subpoenaed to appear therein as a witness before a general court- martial of said Army (or naval court), 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 punished by a fine of not more than $500, United States currency, or imprisonment not to exceed six months, or both, at the discretion of the court, and it shall be the duty of the proper fiscal or prosecuting officer, on the certification of the facts to him by the general court-martial, to file in the proper court a complaint against and prosecute the person so offending: Pro ruled, That $1.50, United States currency, for each day's attend- ance, and 5 cents, United States currency, per mile for going from his residence to the place of trial or hearing, and 5 cents per mile for returning, shall be duly tendered to said witness: Provided further, That no witness shall be compelled to incriminate himself or to answer any question which may tend to incriminate him. (Acts 1130 and 1243, P. I. Commission.) The provisions of this paragraph do not apply to witnesses before special and summary courts. [Note. — Employees of the civil government of the Philippine Islands, paid from Insular funds of the islands, are held not to he in the employ of the 1 States. (Dec. Comp. Treas., Aug. 20, 1902, published in Cir. 45, A. G. O., 1902. I i 172. Tender of fees preliminary to prosecution. — In case a civilian wit- ness is duly subpoenaed under the authority of A. W. 22 and willfully neglects or refuses to appear or refuses to qualify as a witness, or to testify or produce documentary evidence which he may have been Legally subpoenaed to produce, he will at once be tendered or paid by the nearest quartermaster one day's fees and mileage for the journeys to and from the court, and will thereupon be again called upon to comply with the requirements of the law. Upon failing the second time to comply with the requirements of the law a complete report of the* case will be made to the officer exercising general court- martial jurisdiction over the command with a view to presenting the facts to the Department of Justice for the punitive action contem- plated in A. W. 23. 173. Contempts — (a) Authority to punish. — A court-martial may punish, at discretion, subject to the limitations contained in A. W. 14 any person who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder i A. W. 32.) The power to so punish is vested in general, special, and summary courts-martial. Punishments adjudged for contempt, like other punishments adjudged by courts-martial, require the* approval of the reviewing authority in order to be effective. 34 MANUAL F( B COTJETS-MABTTAL. (b) Persons who may be punished for contempt. — The words " any ii." as used in A. AY. 32, appear to include civilians as well as military j .In view. ' E the embarrassment liable to attend th< i. through military machinery, of a punishment adjud ' civilian for a. contempt under the article, it would generally be ad\ [sable art to confine itself to causing the party to be removed as a disorderly person, and, in an aggra- de procure a complaint to be lodged against him for h of the public peace. (Winthrop, p. -10:2.) (c) Direct and constructive contempts. — A direct contempt is one committed in the presence or immediate proximity of a court while it is in session. An indirect or constructive contempt is one not so mitted. The conduct described in A. W. 32 constitutes direct con- tempt. But conduct on the part of a person subject to military law and amounting to a constructive contempt may be punished like any ether conduct that is prejudicial to good order and military discipline, by bringing th ■ to trial before another court on charges under A. W. 96. (d) Procedure. — "Where a contempt within the description of A. W. 32 has been committed and the court deems it proper that the offender shall be punished, the proper course is to suspend the busi- ness and, after giving the party an opportunity to be heard in ex- planation, to proceed, if the explanation is insufficient, to impose a punishment, resuming thereupon the original proceedings. The action taken is proper!}' summary, a formal trial not being called for. Close confinement in quarters or in the guardhouse during trial of the pending case or forfeiture of a reasonable amount of pay, has been the more usual punishment. A full record of the proceeding is at once made, not separate from, but in and as a part of the regular record of the case on trial, showing the occasion and circumstances of the contempt, the words or acts which constituted it, the excuse or statement, if any, of the party, the action taken by the court, its ■ nent and the disposition of the offender. (Wintlrrop, p. 469.) ling against a military person for contempt in the manner contemplated by this article, the alternative course may be pursued of bringing him to trial before a new court on a charge of a ler under A. W. 96. tion IT. DEPOSITIONS. 174. When admissible. — A duly authenticated deposition taken upon reasonable notice to the opposite partj may be read in evidence be- fore any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such COUETS-MATtTIAL WITNESSES AND DEPOSITIONS. 85 deposition be taken when the witness resides, is found, or is about to go beyond the State, Territory, or District in which the court, com- mission, or board is ordered to sit, or beyond the distance of 100 miles from the place of trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, impris- onment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases. (A. W. 25.) [Note. — For form for interrogatories and depositions, sc<> Appendix 12.] 175. Before whom taken. — Depositions to be read in evidence before military courts, commissions, courts of inquiry, or military boards, or for other use in military administration, may be taken before and authenticated by any officer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths. (A. W. 26.) 176. Interrogatories, how submitted. — The procedure for submitting interrogatories for a deposition is as foil (a) The party desiring the deposition submits to the opposite party the interrogatories which he wishes propounded to the p< whose deposition he desires, and the opposite party then submits to him such cross-interrogatories, if any, as he may desire. Such addi- tional direct and cross-interrogatories may be submitted as desired; or (h) The party desiring the deposition submits to the court, mili- tary commission, or board the interrogatories which he wishes pro- pounded to the person whose deposition he desires. The opposite party then submits to the court, military commission, or board such cros— interrogatories, if any, as he may desire. The court, military commission, or board then submits such additional interrogatories Lay deem proper and desirable, and such additional direct and cross-interrogatories may be submitted as are desired. (r) Where the court, military commission, or board desires that the deposition of a particular person be obtained, it will cause in- terrogatories to be prepared accordingly. The prosecution and de- fense (or other party or parties in interest) then submit such inter- they may desire. Such additional interrogatories may d by the court, military commission or board, or by a party in interest. 177. Procedure to obtain deposition. — (a) All the interrogatories to be propounded to the person are entered upon the form for interroga- tories and deposition, and the trial judge advocate, summary court, 86 MANUAL FOB OOUBTS-MABTIAL. or recorder will take appropriate steps to cause the desired deposition to be taken with the Least practicable delay. In an ordinary case be will either send the interrogatories to the commanding officer of the post, recruiting station, or other military command at or nearest which the person whose deposition is desired is stationed, resides, or is understood to be, or will send them to some other responsible per- son, preferably a person competent to administer oaths, at or near at which the person whose deposition is desired is under- tone, !.. » the interrogatories may be sent to the department or other superior commander or to the witness himself, and in any rase they will, when necessary, be accompanied by a proper explanatory letter. (b) When interrogatories are received by a commanding officer he will either take or cause to be taken the deposition thereon. He may send an intelligent enlisted man — preferably a noncommissioned officer, if available — to the necessary place for the purpose of ob- taining the deposition, or he may properly arrange by mail or other- wise that the deposition be taken. The deposition will be taken with the least practicable delay, and when taken will be sent atonce direct to the judge advocate of the court-martial trying the case or other proper person. (c) If the witness whose deposition is desired is a civilian, the judge advocate or other proper person sending interrogatories as above will inclose with them a prepared voucher for the fees and mile- age of the witness, leaving blank such spaces provided therein as it may be necessary to leave blank, accompanied by the required number of copies of the orders appointing the court, military commission, or board. The judge advocate, summary court, or recorder will also send with the interrogatories duplicate subpoena requiring the witness to appear in person at a time and place to be fixed by the officier, mili- tary or civil, who is to take the deposition. If the name of this officer is not known, the space provided for it will be left blank. If a mili- tary officer takes the deposition, be will complete the witness voucher, certify it, and transmit it to the nearest disbursing quartermaster for payment. Winn the deposition is to be taken by a civil officer he will be asked to obtain and furnish to the military officer, requested or designated to cause the deposition to be taken, the necessary data for the completion of the witness voucher, and the latter will com- plete the voucher, certify it. and transmit it to the nearest disburs- ing quartermaster for payment. In the ease of a military witness subpoena will not accompany the interrogatories, but the officer before whom the deposition is to be taken will take the steps to have the witness appear at the proper time and place. COURTS-MARTIAL WITNESSES AND DEPOSITIONS. 87 178. Tracing delayed depositions. — Judge advocates will be prompl in preparing and forwarding interrogatories. If the deposition is not received within a reasonable time, a letter of inquiry will be sent; and, if a prompt explanation of the delay is not received, the dep art ment commander or other proper superior will be advised. 179. Designation of deponent by official title. — Where it is desired to take the deposition of some person holding a certain office or as, for instance, a troop commander, first sergeant, quartermaster ser- geant, cashier of a bank, post exchange officer, etc., and the name of the person is unknown, interrogatories may be prepared in the usual way for submission to the person holding the office or position, with- out naming him unless it shall appear that the accused will be preju- diced thereby. 180. Deponent's answer to be responsive. — Before a witness gives hi? answers to the interrogatories they should be read and, if necessary explained to him, or he should be permitted to read them over in order that his answers may be clear, full, and to the point. The per- son taking the deposition should not advise the witness how he should answer, but he should endeavor to see that the witness understands the questions, and what is desired to be brought out by them, and that! his answers are clear, full, and to the point. 181. Fees for taking depositions. — Civil officers before whom depo- sitions are taken for use before courts-martial will be paid the feea allowed by the law of the place where the depositions are taken. 182. Taking depositions in foreign country. — If the evidence desired from a witness residing in a foreign country is necessary and mate rial and is desired to be read before a court-martial, military commis- sion, court of inquiry, or military board sitting within any of tL: States of the Union or the District of Columbia, interrogatories (accompanied by the necessary vouchers for fees and mileage) will ordinarily be forwarded through military channels to The Adjutant General of the Army. They will then be transmitted by the Secre- tary of War to the Secretary of State, with the request that they be sent to the proper consul of the United States and tiie deposition of the witness he taken. In the case of troops serving along the inter- national boundaries, outside of the United States proper, or in foreign countries, the officer exercising general court-martial juris- diction may. in his discretion, detail an officer to take the deposition of a civilian witness, or In- may send the interrogatories direct to the consul of the United States nearest the place of residence of the witness with the request that the deposition be taken. In the latter case the interrogatories will be accompanied by the proper vouc for the fees and mileage of the wit ; [Note.— For use of depositions ;is evidence, see < !hap. XI. Evidence.] 38 MANUAL POB COURTS MABT1 : l<\ TIT. FEES, MILEAGE, AND EXPENSES OF WITNESSES. 183. Officers and soldiers, active or retired. — Officers and soldiers on list required to attend a court-martial as witnesses are ititled t< receive mileage and fees like civilian witnesses but ttitled to such travel allowances as the law allows to officers and soldiers traveling under orders; but a retired officer, not assigned stive duty, or a retired soldier, is entitled to the per diem and mileage provided for civilian witnesses not in Government employ. e.— The r. les of persons In the military service or of civilians In the Government employ duly subpoenaed and appearing b civil courts whether State or I payable by the civil authorities.] 184. Civilians in Government employ. — Civilians in the employ of the eminent 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 short- est usually traveled route, including transfers to and from railway stations, at rates not exceeding 50 cents for each transfer, and the cost of sleeping-car accommodations to which entitled or steamer berth when an extra charge is made therefor. They are also en- titled 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 unmons. No allowance will be made to them when attendance upon court does not require them to leave their stations. 185. Civilians not in Government employ. — A civilian, not in Govern- ment employ, duly summoned to appear as a witness before a mili- tary court, commission, or board or at a place where his deposition is to be taken for use before such court, commission, or board, will receive $1.50 for each day of his actual attendance before such court, on, or board or for the purpose of having his deposition taken, and 5 cents a mile for going from his place of residence to the place of trial or of the taking of his deposition, and 5 cents a mile for returning, except as follows: (a) In Porto Rico and Cuba he will receive $1.50 a day while in idance as above stated and 15 cents for each mile necessarily (raveled over stage line or by private conveyance and 10 cents for each mile over any railway or steamship line. (M In Alaska, east of (he one hundred and forty-hrst degree of longitude, he will receive $2 a day while in attendance as above stated and L0 cents a mile, and west of said degree $4 a day and 15 cents a mile. COURTS-MARTIAL — WITNESSES AND DEPOSITIONS. 89 (c) In the States of Wyoming, Montana, Washington, Oregon, California. Nevada. Idaho, Colorado, Utah, New* Mexico, and Ari- zona will receive $3 a day for the time of actual attendance as above stated, and for the time necessarily occupied in going to and return- ing from the same, and 15 cents for each mile necessarily traveled over any stage line or by private conveyance and 5 cents for each mile by any railway or steamship. [Xoie.— I. Travel must be • by the shortest usually travel-: rcra te — tablished lines of railroad, - earner — the time occu] by the official schedules, reasonable allowance b e for unavoidable detention. 2. These rates apply to the Philippine Islands. (SeeCir. 45, ;'02.) 3. A civilian not in Government employ, when furnished tri < on transport or other Government conveyance, is entitled to r>7.i4:i per cent of 5 cents'per mile (equal to 2.857 cents per mile). (Comp. Dec, Aug. 20, 1902, published in Cir. 45, A. G. O., 1902.)] 186. Payment for return journey. — The charges for return journeys of witnesses will be made upon the basis of the actual charges allowed for travel to the place of giving testimony, and the entire account thus completed will be paid upon discharge from attendance, without waiting for completion of return travel. 187. Contents of vouchers. — The items of expenditure authorized for civilian witnesses will be set forth in detail and made a part of each voucher for reimbursement. No other items will be allowed. The certificate of the judge advocate, or other officer, will be evi- dence of the fact and period of attendance, and will be made upon the voucher. When payment is made under the provisions of paragraph isl, the correctness of the items will be attested by the affidavit of the ess, to be made, when practicable, before the officer who certifies t}\(^ voucher. 188. Witness in several trials on same day. — A civilian attending as a Hess in several court-martial trials on the same day is entitled to a separate fee tor attendance in each case (Dig. Dec. Comp., 1894 to t will receive mileage in only one case. 189. Voucher to be delivered to witness. — A civilian witness not in mploy who appears to testify is entith d, upon his dis- charge from attendance, to receive from the judge advocate, if any rder of court of inquiry or board, etc.), his witness voucher properly filled out. If not practicable to deliver to the \ at that time his address will be obtained and his witne si will be promptly forwarded to the nearest ang quartermaster. To entitle a witness to the payment of ■and □ I essential that he should prod 190. Lost voucher.— -Where the voucher • - has been Lost, a new voucher may be issued by the judge advocate upon a satisfa< 90 ICAKUAL FOR COTJBTB-MABTIAL. showing of such Loss, supported by affidavit. The new voucher should be so noted as to indicate its character and should he for- ward d to the Quartermaster < reneral Cor settlement. 191. Fees for service of subpoena*.— There is ao fee or compensation fixed by statute or regulatioD for the service of subpoenas to secure the attendance of witnesses before military courts. Ordinarily serv- il be made by an officer or soldier, but if service by a civilian eemed by the judge advocate or department commander to be preferable, the services of a civilian may be used, and the fees and mileage allowed by law in that locality for similar services may be paid by a quartermaster from the appropriation "for expenses of courts-martial, etc." 192. Employment of experts.— "When the employment of an ex; is necessary during a trial by court-martial the necessity for such em- ployment should be made to appear by a resolution of the court. This resolution will be forwarded by the judge advocate, in advance ,,!' the employment." to the authority appointing the court, with a re- quesl for authority to employ the expert and for a decision as to the compensation to be paid him. The requesl should, if practicable, the compensation that is recommended by the judge advo The compensation of the expert, including the compensation for photographs that may be necessary in connection with his testimony, will be paid out of the appropriation "for expenses of courts-mar- tial, [Note.— Where, in advance of trial, the judge advocate knows thai the em- ployment of an expert will be necessary, he should, without delay, apply i<> the appointing authority for authority to employ the expert, statin- the necessity therefor and probable cost thereof.] (C. M. C.J/.Xo.J.) 193. Expenses of courts-martial, etc., how payable.— The fees of civil- ian witnesses, the mileage of both civil and military witnesses, the i fee of the proper official for certified copy of a marriage certifi- cate, the expense of procuring a transcript of a stenographer's of testimony taken before a United States commissioner, the f< itary for swearing a witness, and the expenses (including rail- way fare and hotel bills) of a United States r:,!-ul stationed in a ign country in taking depositions, when such items are incurred in connection with a trial before a court-martial or military commi - sion, or investigation before a court of inquiry, are paid by the r Cups out of the annual appropriation " for expenses of courts-martial, etc." If no quartermaster be present at the place w | e re the courl is sitting the vouchers may be transmitted dii any quartermaster. Such vouchers are nol transferable. I Note.— Blanfe vouchers may be procured from any disbursing quartermaster.] CHAPTER XI. COURTS-MARTIAL— EVIDENCE. (Revised and approved by Professor Wigmore.) Section I. Introductory provisions : Pa36 - 194. ( leneral remarks 195. The issues 94 196. Analysis of evidence by judge advocate and counsel 95 197. Duties of court — Opening statements 95 198. Rules of evidence for courts-martial 96 199. Rules -where found 97 200. Rules of evidence to be applied irrespective of rank 98 201. Protection of witnesses 98 202. Evidence must be material and relevant 98 Section II. Circumstantial evidence: 203. Circumstantial evidence 99 204. Illustration of difference between good and bad circumstantial evidence 99 205. Evidence of character of accused, and of Ms services 100 206. Motive, etc 100 Section III. Testimonial evidence: 207. Testimonial evidence 101 208. Competency rule in general 101 209. Competency of witness 102 210. General capacity of witness 102 211. Moral incapacity of witness 102 212. Mental incapacity of witness 102 213 . Interest or bias. 102 214. Where accused is witness.' 103 215. Procedure where accused fails to testify or make a statement 103 216. Effect of turning state's evidence 104 217 . Competency of accused when testifying against an accomplice 104 218. Expert capacity 104 219. Insanity of accused 104 220. Testimonial knowledge 1° 6 221 . ITearsay evidence 107 222. Dying declarations 108 223. Res gestae ] ° 8 22 1 . Evidence of conspirators and accomplices 119 225. Confessions H° 226. Admissions against interest H2 227. Privileged communications US 22S. Privilege of wife and husband to testify 114 229. Telegrams not privileged 115 230. Confidential papers li5 91 02 " COTJBTS-MABTIJtL. Lnued. rage. . Oommuni aot privi- - • 115 ; i;iu and patients not privi- 115 tion prohibited 115 bending to d grade 116 o aelf-crimination ceases 116 dnatiorj is a] 116 incriminating question is asked 117 If-criminati ised to submit to p imi- iiit.t i< .ti 117 mting 118 . IV. Documents: ablic records 119 l official writings are evidence oi I d therein 120 rison of handwriting 1 20 241. Use of memoranda 121 e 121 ■ indum for refreshing recollection 121 244. Books of account L21 2 15. Maps, photographs, etc 122 of witnesses: iVitnesses examined apart from each other - 122 • ibjeclions to competency; when made 122 'umber of witnesses required 122 219. Order of examination of witnesses 123 250. Direct examination 123 examination 123 252. Redirect and o Lnation 124 253. Examination by the court 124 I ions 124 1-5 VI. Credibil Whal credibilty consists in 125 257. Proofofchai ral reputation 126 258. C E crime 126 •ntradicl ion 126 ice, bias, etc 120 126 radictory statements out of court 126 ible 127 264. D •: capital cases 127 d admissibility of evidence 127 ination of deposition by counsel 127 127 Miscellaneoi Ions 128 Ufidavita nol admissible 128 128 1 28 urt of inquiry 128 Evidence of pardon 128 rtial or civil a urf 129 mony in civil courts and courts-martial 129 EVIDENCE. 93 Section VIII. Presumptions: Ta ^ 276. Presumptions 130 277. Presumptions of law 130 278. Presumptions of tact 130 270. Prima facie evidence 131 280. Intent in connection with crime 131 281. Intent in military case.-; 131 282. Ignorance of law 132 283 . Ignorance of fact 133 284. Evidence of desertion 133 (a) Statutory rules of evidence 134 285. Drunl i i >wing absence of intent 135 280. Drunkenness in military cases 136 287 . Proof of drunkenness 136 288. Reasonable doubt and burden of proof 136 Section IX. Judicial notice: 289. Judicial notice 137 Section I. INTRODUCTORY PROVISIONS. 194. General remarks. — The oath taken by members of general and special courts require them to try and determine "according to evidence" the matter before them. A summary court, although it does not take such an oath, will also determine the matter before it solely on the evidence in the case, and no evidence would be admis- sible before a summary court that is not admissible before general and special courts. The evidence thus referred to, according to which the court must decide the case, means all the matters of fact which the court permits to be introduced, or of which it takes judicial notice, with a view to prove or disprove the charges. Every item of this evidence must be introduced in open court, and it would be seriously irregular and improper for any member of the court to convey to other members, or to consider himself, any personal in- formation that he possessed as to the merits of the ease or the charac- ter of the accused, without stating it in open court and, if a witness for the prosecution, retiring as a member of the court, as provided in A. W. 8. But while their knowledge of the facts must come to them from the evidence, the members are expected to utilize their common sense, their knowledge of human nature and the ways of the world in weighing the evidence and arriving at a finding. In the light of all the circumstances of the case they should consider the inherent probability or improbability of the evidence given by the several witnesses, and with this in mind the court may properly believe one witness and disbelieve several whose testimony is in conflict with that of the one. 94 MANUAL FOR COURTS-MARTIAL. The methods which are employed by courts of justice to ascertain the facts that is. the truth— respecting any past transaction closely tble those resorted to by an individual for a similar purpose. If A desires to ascertain wheth r a particular act did or did not take place, lie addresses himself to those who were in a situation to witness the occurrence itself, and so endeavors to obtain from each person nt his version of the occurrence. From the testimony thus ob- tained lie forms his conclusion as to whether or not the act took ■. In the course of his investigation, however, he finds that all who were present and witnessed the occurrence as bystanders do not testimony of equal importance or value. Some having greater powers of observation or better memories than others give in conse- quence more valuable testimony. Some of the witnesses, being chil- dren or persons of weak or unsound mind, are without the requisite mental capacity to observe facts or to appreciate their relations to each other; others, by reason of their bad character, are not regarded as worthy of belief by their fellow citizens; still others were insane or quite under the influence of intoxicating liquor at the time of the occurrence, and so were incapacitated from observing. A, therefore, rejects some of the statements as entirely untrustworthy; to others he attaches weight in proportion to their worthiness of belief, and so endeavors to reach a conclusion as to the truth of the occurrence or event which was the original subject of his inquiry. (Davis, p. -244.) 195. The issues. — It is well to understand, in the beginning of this consideration of the rules of evidence, the purpose for which the evi- dence is to be introduced in the manner prescribed and laid dow-n by the rules. The purpose is to elucidate and settle the issues raised in the case and to confine, under a well devised and developed system of limitations that experience has shown to best conserve the inter- ests of all concerned, the evidence to such issues. In every criminal case the burden is on the prosecution to prove, by relevant evidence, (a) that the oifense charged was really com- mitted, (h) that the accused committed it, and (c) that the accused had the requisite criminal intent at the time. These three facts broadly constitute the issues in the case. Incidental issues will be formed by the necessity for proof of the essentials — that is, the gist— of an offense and as to character. Not only the allegations set out in the charges and specifications, but the component parts of such allegations as well, raise the issues to be decided. For instance, in a of larceny, where it is charged that the accused "did take, steal and carry a \\av r certain articles of value, the component parts of the allegation not specifically set out are that such articles were taken fraudulently and (b) with the felonious intent of depriving the owner of 1 hem. EVIDENCE. 9f 196. Analysis of evidence by judge advocate and counsel. — The ends of justice and saving of time of all concerned imperatively dems careful analysis by both judge advocate and counsel for accused of the evidence requisite for proof of and defense against the offenses charged. As a prerequisite to such analysis the law as to the offenses charged should be studied with a view to determining the essential elements of the offense; that is, the things that must be proved by the judge advocate in order to justify a conviction and those that must be proved by the defense to disprove or place in reasonable doubt the proof offered by the prosecution. In other words, the prosecution and defense should limit the proffer of testimony to that which is relevant to these issues, and these only, and should prepare the case with only that in view. The essentials or gist of the offense (see Chap. XVII) should be so clearly denned in the preparation of the case that both the judge advocate and counsel for accused may be ready, by appropriate objections before the court, to limit the introduction of evidence to relevant matter only, bearing in mind that only the essentials of the offense must be proved and that what may be properly considered surplusage may be disregarded. Before trial an examination of all the sources of the evidence to be submitted should be made by the judge advocate and counsel for accused and a determination as to the order in which it will be intro- 1 1 should be reached. The case should be presented in sequence of events as nearly as possible, just as a story would be told by on€ party who had seen everything to which the different witnesses will testify. When several offenses are charged, especially if unrelated, the evidence should be directed to the development of their proof in the order charged, so that neither the court nor the accused may be in doubt at any time as to the specific offense to which the testimony being given refers. Counsel for accused should adhere to the same principle in presenting evidence for the defense. 197. Duties of court — Opening statements. — If the court will augment the preparation invoked in the preceding paragraph by constantly bearing in mind what the issues are and holding judge advocate mid counsel strictly to them, it will tend to the expedition of business, the securing of justice, and the conservation of the interests of all concerned. The court should have before it as a guide, always by reference to this manual in each case, the following essential con- siderations as to any evidence that may be tendered: (1) That it is relevant t<> the issue; (2) that it is not within the rule rejecting hearsay evidence; (3) that, if it is a confession or admission, it is legally admissible; (-4) that where docume;.' 1 the original should be obtained (except when a copy is admissible) and that tli- genuineness should be verified; (5) that any witnesses called are 90 MAX TAT. FOR COURTS- MARTIAL. Qy compefc ■ e; (6) thai the examination of irly and properly conduct i tish Manual.) • will always be had to the paragraph of the manual thai sets out the gist of the offenses charged (see Chap. XVII), and this wil] be read to the court in each case by the ji advocate immediately after the accused has pleaded to the charges fications. It will 1 • i iate in all cases — and in an important or compli- cated case it will be required by the court — for the judge advocate, oceeding with the introduction of evidence, to make a brief :nent of " the nature of the issues to be tried and what he i xpects to prove" (1 Thompson on Trials. 246) to sustain them. Counsel 1 may also make an opening statement as to his de- ■. either just following the statement of the judge advocate or just after the judge advocate has rested his case, as counsel deems i etter, but the latter course is customary. It would be highly repre- hensible for either judge advocate or counsel to get before the court in such opening statement, as a probable means of influencing its judgment, matters as to which no evidence is intrude. 1 to be offered or as to which it is known that the evidence to be offered is clearly inadmissible, just as it would be so reprehensible for either to suggest for the same purpose, by questions propounded to a witness, matters known not to exist or that the rules of evidence clearly make inad- ible. 198. Rules of evidence for courts-inartial. — Prior to the act of August 29,1916 (A.W.,38), courts-martial followed in general the rules of evidence, including the rules as to competency of witnesses to testify, that are applied by Federal courts in criminal cases. These consisted be rules of the common law as they existed in the several St at the adoption of the Federal Constitution- in 1789, as modified a time to time by subsequent acts of Congress. But courts- martial were, however, not required by express statute to follow these rules, and have always been allowed to pursue a more liberal course in regard to the admission of testimony than do, habitually, the civil tribunals. Their purpose was to do justice; and if the effect i technical rule was found to be to exclude material facts or otherwise obstruct a full investigation, it was deemed that the rule and should be departed from. Proper occa ever, for departure s were regarded as exceptional and unfrequent. (Win- p,473.) It was believed that "courts-martial had much better Brr on the side of liberality toward a prisoner than, by endeavoring to solve nice and technical refinements of the laws of evidence, assume the risk of injuriously denying him a proper latitude for defense." (G. C. M. O. 32, L872; see 3 Greenleaf, sees. 469, 476.) And now, by the pro the act of August 29, 1916 (38 A. W.) : EVID! 97 The President may, by regulations which he may modify from time to time, proscribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals: Provided, That nothing contrary to or inconsistent with these articles shall be so prescribed: Provided fur- th, /■. That all rules made in pursuance of this article shall be laid before the Congress annually. The modes of proof, therefore, including the rules of admissibility for witnesses and other evidence, are now by express congressional, enactment placed under the authority of Executive regulation; and the rules laid down in this Manual have the force of such regula- tion. They therefore form the only binding rules, except such rules of evidence as are expressly prescribed (1) in the Articles of War; (2) in the Federal Constitution; and (3) in such Federal statutes as expressly mention courts-martial. 199. Rules, where found. — The common-law rules, with their legis- lative modifications, will be found in the various textbooks on the subject of evidence. These rules have been the subject of much in- terpretation by the courts, which will be found in the published de- cisions of such courts. While resort to textbooks and decisions will sometimes be necessary in the trial of an especially difficult case, it is the purpose of this chapter to state the rules of evidence applicable to trials by courts-martial in sufficient fullness to cover the field in practically all cases. Where the rule herein laid down is clear it should be taken as law (subject to the discretionary relaxation noted in par. 108) , unless modified by Federal statute or some decision of the era] courts made since the date of the publication of the Manual. Where, in the preparation of a case, the judge advocate or counsel finds that the rules laid down in this chapter are not sufficiently specific clearly to settle a specially important question as to the com- I n tency of a witness to testify or as to the admissibility of evidence intended to be introduced or the exclusion of such as the nature of the or other information indicates will be offered, he should secure in advance of the trial and have with him in court authorities to sustain his contentions for such admission or exclusion. But it should be kept in mind that the use of such authorities is merely to inform the court of the reason of a rule or the good sense and fairness of a proposed ruling, and not to control the decision of the court with binding effect. This caution rests on the two grounds of principle: First, because the State decisions and statutes, and the writers of treatises, never have had any binding effect on courts- martial, the Federal statutes and decisions being tin' only ones that are entitled to such effect; and, secondly, because since the Federal statute of August 29, I.'IO (A. W.. 38), the modes of proof in courts- L8 8 98 MANUAL FOB COURTS-MARTIAL, martial are governed by regulations issued by presidential order, as explained in par. 198. 200. Rules of evidence to be applied irrespective of rank. — The rules of evidence should be applied by military courts Irrespective of the rank of the person to be affected. Thus a witness for the prosecu- tion, whatever be his rank or office, may always he asked on cross- examination whether he has not expressed animosity toward the accused, as well as whether he has not on a previous occasion made a statement contradictory to or materially different from that em- braced In his testimony. Such questions are admissible by the estab- lished law of evidence and imply no disrespect to the witness, nor can the witness properly decline to answer them on the ground that it is disrespectful to him thus to attempt to discredit him. (Digest, p. 529, XI, A, a.) 201. Protection cf witnesses. — It is the duty of the court to protect every witness from irrelevant, insulting, or improper questions; from harsh or insulting treatment; and from unnecessary inquiry into his private affairs. The court must forbid any question which appears to be intended merely to insult or annoy a witness, or which, though :• in itself, appears to be needlessly offensive in form. (Pro- posed codification, X. Y. Rules.) 202. Evidence must be material and relevant. — Evidence to be admis- sible must be not only material but relevant to the issues in the case. Evidence is not material when the fact which it aims to prove is not a part of the issues in the case. Evidence is not relevant when, though the fact which it aims to prove is material, yet the evidence itself is too remote or far-fetched to have any probative value for that purpose. Where evidence is apparently irrelevant it may, how- ever, be admitted provisionally upon a statement of the judge advo- cate or counsel that other facts to be proved will show its relevancy, but the court should afterwards exclude it, if its relevancy is not shown. Indirect evidence is known as circumstantial evidence, and signilies merely any and all evidence which is not testimonial; i. e., the assertion of a witness or other person. For example, on a charge of larceny of a wallet, the statement of a witness that he saw the ac- < used take the wallet from the owner's overcoat is testimonial evi- dence; the finding of the wallet hidden in the blanket belonging to the accused is circumstantial evidence. Obviously, a fact constituting circumstantial evidence must itself usually be proved in its turn by testimonial evidence; lor example, the finding of the wallet as indi- cated above would be evidenced by a sergeant's testimoiw that lie searched the accused's blanket and found the wallet. Testimonial evidence is thus classed by itself, because the weight to be given t<» teed imony is subject to a group of considerations which affect all human assertions alike. EVIDENCE. '.>9 Section- II. CIRCUMSTANTIAL EVIDENCE. 203. Circumstantial evidence. — Circumstantial evidence is not resorted to because there is an absence of direct or testimonial evidence. Ii i- introduced even when there is direct evidence; nor is it an inferior substitute for direct evidence. Circumstantial evidence may furnish a safe and satisfactory ground for belief, while on the other h direct or testimonial evidence may leave the court in doubt. The proper effect of circumstantial as compared with direct evidence lias been stated as follows: When circumstances connect themselves closely with each other 5 when they form a large and strong body so as to carry conviction tc the minds of a jury, it may be proof of a more satisfactory sort than that which is direct. In some lamentable instances it has been known that a short story has been got by heart by two or three witnesses ; they have been consistent with themselves, they have been consistent with each other, swearing positively to a fact, which fact has turned out afterwards not to be true. It is almost impossible for a variety of witnesses, speaking to a variety of circumstances, so to concoct a story as to impose upon a jury by a fabrication of that sort, so that where it is cogent, strong, and powerful, where the witnesses do not contradict each other or do not contradict themselves, it may be evidence more satisfactory than even direct evidence, and there are more instances than one where that has been the case. ("Wigmore, 2G.) In a case depending upon circumstantial evidence the court, in order to convict, must find the circumstances to be satisfactorily proved as facts, and must also find that those facts clearly and un- equivocally imply the guilt of the accused and can not reasonably be reconciled with any hypothesis of his innocence. (Davis, p. 265.) 204. Illustration of difference between good and bad circumstantial evi- dence. — The accused is charged with stealing clothes from the locker of a comrade. The following circumstances are not admissible as circumstantial evidence: (1) The accused is very much disliked by other members of hi? company. i J | A number of thefts from comrades have taken place in the company, and the general belief in the company is that he was con- nected with them. (3) He was tried once before for larceny of clothes from a com- rade and was convicted. (0 Ho is suspected of being a deserter from a foreign army. (5) lie belongs to a race or enlisted in a locality that does no* entertain very strict notions of right and wrong as to the manner o^r acquiring possession of property. 100 MANUAL FOR COURTS-MARTIAL. But the following scries of circumstances should be admitted in evidei (1 ) The clothes were taken while the company was at drill, and there was no one known to have been in the room where the locker was. (2) The accused was not at drill, but was detailed as kitchen police that day. (3) He was absent from his duty as kitchen police a short while during the time when the clothes disappeared. ( )ne of the articles stolen was found in the locker of the accused. ( 5 I The accused was known to be without money the day before the larceny, and that evening left the post with a bundle under his arm and was seen to enter a certain house and the same night had money in his possession. (6) Upon the house being searched next day most of the missing clothes were found there. (7) The person found in the house identified the accused as the one from whom he had purchased the missing clothes. 205. Evidence of character of accused and of his services. — In trials by court-martial the good character of the accused, as evidenced by his reputation, may become of importance in four classes of cases , First, when the evidence of guilt is not strong evidence of the good reputation of the accused will strengthen the presumption of inno- cence; second, when the punishment is discretionary such evidence may be introduced with a view to inducing the court to impose a milder sentence in the case of a plea of guilty or a conviction; third, when the punishment is mandatory such evidence maj^ be introduced with a view to inducing the court to recommend clemency; fourth, in any case such evidence may be introduced with a view to inducing the reviewing authority to extend clemency. An accused may also intro- duce evidence of his character and services. In any such case, if the accused offers evidence as to character, record, or services, as shown by statement of service or otherwise, the prosecution may re- but -well evidence. (See 1, 2, 4, and 5, par. 204, p. f>9. for illustrations of what may uot be used in rebuttal to evidence bad character.) Evi- dence as to the bad character of an accused, offered by the prosecution or at the*solicitation of the court prior to the introduction by the accused of evidence as to his good character, is inadmissible. Not even the fact thai before the introduction of such evidence the ac- cused consented to its introduction will make it any the less irregular. If, however, the accused takes the witness stand his character for veracity as a witness may be attacked as in the case of any other w i 1 1 , • 206. Motive, etc. — Motive or lack of motive as impelling the accused toward or against the act charged or thai class of acts often throws EVIDENCE. • 101 a flood of light upon the issue as to guilt or innocence, So important has it been deemed for the ascertainment of truth that it has invoked exceptions to the character rule. Thus the doing of another crim- inal act, not a part of the issue, while not admissible as evidence of the doing of the criminal act charged, or of the bad moral char- acter of the accused, is admissible when offered for the specific pur- pose of evidencing design, plan, motive, identity, knowledge, or other relevant facts distinct from moral character. (Wigmore's P. C. 64, 65.) Illustrations. — (1) In a trial for arson of a barn, the defendant's attempt on two former occasions to burn houses in other parts of the town is not admissible, unless for the purpose of evidencing intent or motive. (2) On a charge of murder by poison, the defendant's murders of other members of the same family by poison, if admissible to show motive or intent, are not excluded because they are criminal acts and might cause undue prejudice. (AYigmore's P. C. 64, 65.) (3) The declarations, threats— especially his other similar criminal acts — of the accused are admissible. (4) When the accused is charged with having knowingly com- mitted an offense or having knowledge of the essence of the offense, prior similar acts that would probably have led to some knowledge or warning would be admissible. Sectiox III. TESTIMONIAL EVIDENCE. 207. Testimonial evidence. — Testimonial evidence is the statement of some person offered as evidencing the fact asserted by it. For ex- ample, a statement that a rifle was discharged at a certain hour and place is testimonial evidence that it was so discharged. Such statements may be made either in court or out of court. If made in court as a witness, then the witness must be " competent." 1 1 made out of court, then even if he is competent, the statement is not admissible, because the hearsay rule forbids. The competency of the witness is therefore the important thing to determine before admitting testimonial evidence. 208. Competency rule in general. — The modern tendency, as evidenced to a great extent by statutes of different States, and to a limited ut by Federal statutes, is to recognize practically no grounds for incompetency, but to admit the material and relevant testimony of a witness offered by either side and leave his credit to be estimated ac- cording to all the circumstances. Among the few common-law grounds of incompetency (sec par. ]'.»- ) now remaining in some States, but no Ion--. :• to be recognized in 102 MAI. FOR COURTS-MARTIAL. courts-martial, are (1) conviction of felony and of misdemeanors involving dishonesty ("crimen falsi"), especially perjury; (2) re- lationship, as wife or husband of the accused. (See pars. 211 and 813.) 209. Competency of witness. — The competency of a witness depends upon several elements, which may be divided thus: (1) His general moral and mental capacity; (2) his special ixpertness in subjects on which expertness is required; (3) his knowledge of the specific facts on which he testifies. 210. General capacity of witness. — The general capacity of an adult witness is always presumed; i. e., the party disputing it must always prove to the court the specific ground of incapacity or else the witness should be allowed to testify. The admissibility of children as wit- is not regulated by their age, but by their apparent sense and understanding. Children, therefore, of any age, may be examined, if capable of distinguishing between good and evil, but always under oath. There are very few grounds of incapacity to-day recognized by the law. 211. Moral incapacity of witness. — Moral incapacity was recognized in the common-law rule that rendered incompetent as a witness any person convicted of treason, felony, or the crimen falsi. But this incapacity has been abolished in almost all States, except that several retain it with a restriction to convictions for perjury. In courts-martial, conviction of any offense does not disqualify a witness. But it may, of course, be shown to diminish his credit. (See Credibility of witnesses, Sec. VI, post.) 212. Mental incapacity of witness. — Mental incapacity is a disquali- fication, but only to a limited extent, as follows: Insanity or intoxi- cation may disqualify, but only to the extent to which they affect the subject of the testimony. For example, a religious hallucination as to angels saving a man from bullets does not disqualify the person from testifying as to the time of lighting a camp fire or the persons on duty at a certain post. Intoxication would disqualify only if it was so complete as to render the person senseless at the time of the event to be t est i lied to. 213. Interest or bias. — Interest or bias does not disqualify ; i. e., the fact that a person owes a party money or has a property interest with or against a party, does not disqualify him from testifying for or against that party. A person who is a relative or an avowed enemy of the accused is not disqualified from testifying for or against the accused. The weight of such testimony when admitted is a different matter. (Sec Credibility <>1* witnesses. Sec. VI. post.) Marital relationship was a disqualification at common law. Except in certain cases, husband or wife could not testify either for or EV1D1 103 against one another. This rule has been abolished in most Sta In courts-martial the rule is as follows: (1) Wife or husband of an accused may testify on behalf of the accused without restriction. (2) Wife or husband of an accused may not be called to I 8t the accused without the consent of bath accused and witn unless on a charge of an offense committed by the ace:..- I i witness. (See par. 228.) (3) Wife or husband of any person may not testify to confidential communications of the other, unless the other give consent. The last two rules are rules of privilege, and are more fully stated under « Privilege." {I '. 21. C. 21. No. 40 214. Where accused is witness. — It was provided by act of Cong] of March lG, 1878 (20 Stat., 30), that in trials by courts-martial and courts <>f inquiry a- well as by United States courts and Territorial courts, the accused "shall at his own request, but not otherwise, be a competent witness," and that "his failure to make such request shall not create any presumption against him." An accused person thus may, at his option, take the stand as a witness, but in so doing ha occupies no exceptional status and becomes subject to cross-examina- tion like any other witness. The same rules as to the admissibility of evidence, privilege of the witness, impeaching of his credit, etc., will apply to him as to any other witness, and the only noticeable difference between his examination and that of other witnesses will be that he will in general, naturally and properly, be exposed to a more searching cross-examination. (Winthrop, 508.) So far as the latitude of the cross-examination is discretionary with the court, a greater latitude may properly be allowed in his cross-examination than in that of other witnesses (id., 515). When the accused testifies in denial or explanation of any offense, the scope of his direct exami- nation is considered to be the whole subject of his guilt or innocence of that offense, and any fact relevant to the issue of his guilt, or rele- vant to his credit as a witness, is properly the subject of cross- examination, and if he fails to deny or explain act- of an incriminat- ing nature that the evidence of the prosecution tends to establish against him. such failure may not only be commented upon by coun- sel, but may be considered by the court, with all the other circum- stance-, in reaching their conclusions as to his guilt or uonoo ti v. TJ. S., 242 T. S., 170, 103) ; where, however, an accused i- on trial for a number of offenses, and, taking the .-land in his own defense, testifies a- to one or more of them only, he can not be cross- examined as to the others, and no comment can be made or Lnfer< drawn from hi- failure to testify as to the other.-*, (t . 21. C . 21 ., No. ;.) 215. Procedure where accused fails to testify or make a statement.- - In each case tried by a general court-martial in which the not testify or make any Statement in his own behalf, it shall ap- 104 MANUAL FOB COT7BTS-MABTTAL. pear on record that the president of the court explained to the ac- cused thai he may testify in his own behalf if he so desire, or may make an unsworn statement to the court in denial, in explanation, or in extenuation of the offense with which he stands charged. The explanation by the president and the reply of the accused thereto shall appear upon the record of trial. The same rule will apply in tried by special court-martial when the evidence heard is made of record. 216. Effect of turning state's evidence. — The fact that an accomplice I urns stair's evidence does not make him immune from trial, unless immunity has been promised him by the authority competent to order his trial. But, if an accomplice goes on the stand and makes a full and frank statement of the circumstances of the offense, it is customary to pardon his offense, or impose upon him a milder pun- ishment than upon his accomplices. 217. Competency of accused when testifying against an accomplice.— The rule of the common law was that an accused person was in- competent to testify for or against his accomplices. This rule is nullified by the act making the accused a competent witness when testi lying at his own request. The rule now is that when an accused chooses to testify he may do so, and that it does not matter whether his testimony is" for or against himself or for or against his code- int. ( Wolf son v. U. S., 101 Fed. Eep., 436.) 218. Expert capacity.— On most matters, the ordinary experience of any adult qualifies him to observe and testify. Hence, all persons ►rdinarily qualified to testify on ordinary matter. But, when the subject is one upon which special experience is required, it will not be presumed that a witness possesses such special experience, for. ordi- narily he does not. Hence, a witness called upon such a subject must [lawn to possess such special experience; he is therefore called expert'' on that subject. A person may be an expert on one subject, but not on another. Hence, whenever such a topic calls for testimony, the witness' special experience in it must first be shown. Whether a piece of leather has been recently tanned : whether a stain is human blood or animal blood, are instances of topics which might well require experts, if important to the issue. In applying this rule, pedantry would be out of place. Experts on all subjects are seldom within reach of a court-martial, and liber- ality of application is a necessity. Good sense and ordinary caution will del ermine whether an expert is needful for accurate discovery he truth. For example, an expert in alcohol would hardly be ' ,i to testify to whether the contents of a certain bottle were ^'A'- ficiently alcoholic to be intoxicating, but in a homicide case, where, the cause of death was disputed, obviously a medical man's testimony should be secured. 219. Insanity of accused. — Where the existence of mental disease or derangement on the part of the accused, either at the time of the trial or at the time of the commission of the alleged wrongful act, EVIDENCE. 105 becomes an issue in the trial of the case, the court -will stop its pro- ceedings and immediately report the fact to the convening au- thority. The convening authority will forthwith order a board of medical officers to take the accused under their personal observation for such length of time as may be sufficient to determine the nature and extent of the disease or derangement, if any, and to extend their examination, in a case of any doubt, to written inquiries di- rected to probation officers, physicians, clergymen, school and prison authorities, mayors, postmasters, etc., for the purpose of fully de- veloping, from any trustworthy sources, the question as to any men- tal, moral, or physical defects of childhood, or later, that may throw light upon the question as to whether the accused at the time of the wrongful act had the necessary criminal mind to commit the wrongful act charged. Where the information from any source in- dicates the absence of insanity, the accused will be entitled to cross- examine the party giving such information. Such information and its source will be brought to the attention of the judge advocate, who will confer with the counsel for the accused for the purpose of securing the presence of the informant for cross-examination before the court, or his deposition if he is not available to testify. The medical board will make a written circumstantial report as to the character of their observations, attach thereto such written evidence as may have been considered, and state their opinion as a board, or individually if there is any difference of opinion, as to whether or not the accused had at the time of their report sufficient mental capacity to justify his being brought to trial, or had at the time of the wrongful act the necessary criminal mind to commit the wrongful act charged, and will further state their opinion, if it. is found that the accused did not have the necessary criminal mind to commit the wrongful act charged, as to whether the accused would be now a menace to the public safety. The medical report as a whole will be admissible in evidence, and when admitted the court will have called as a witness for the courl at least one of the members of the board to be thoroughly examined, as if on cross-examination, by counsel for the accused, the ! ■■ advocate or the court, as to any feature of the report, and on request of the accused the remaining members of the board shall be called for cross-examination. If insanity is indicated to cither judge advocate or counsel for accused prior to the assembling of the court it would be appropriate for the judge advocate, at request of counsel for accused or of his own motion, to report such indications to the reviewing authority with the idea of obviating the necessity for the assembling of the court until a medical board had been convened and reported as outlined 1 1 i In any case where the convening authority accept- the finding ot the board on the question as to necessary criminal mind and decides 106 MAM Al. FOB I OXJB.1 3-MAB1 LAL. to withdraw the case from consideration of the court-martial it would accord with modern ideas of justice, if any doubt whatsoever ted as to the accused having committed the wrongful ad charg< d against him, to grant, upon request of counsel or a meml accused'e family, ;i trial upon the charge with a view to relieving him, though Insane, of the stigma attached to the accusation. In such instance the case should be proceeded with, and if the court deter- mines that the accused committed the wrongful act charged but was insane at the time oi its commission or at the time of trial the find- ings will be to that effect. And in any case where a finding by the court of "not guilty" would be based upon lack of criminal mind, the findings should be in accordance with tho.se prescribed by the ling sentence. 220. Testimonial knowledge. — A prime qualification in a witnes that he should speak only of what he has observed with his senses, or had an opportunity to observe. E. g., a witness on sentry pos night might testify that he heard three shots and saw two per- sons running in tin' distance, but should stop with telling what he heard and saw. To proceed further and slate that the shot.-, killed a mule ami that the accused was one of the persons running may in- volve beliefs of his that are based on rumors and gossip picked up afterwards, beliefs for which he has no status as a witness. An im- portant feature of correct trial methods is to summon every person who saw or heard anything relevant, but to require every such per- son to limit his testimony to what he himself saw or heard. In this way the court arrives (if the testimony be credited) at the basic cir- cumstances on which the proof must be built tip. This rule also has. of course, its liberal side, based on practical experience. For example, if the issue be as to a stolen case of soap, and the quartermaster has an invoice showing 400 cases received, and he is asked how many are remaining in stock, it is not necessary that he should personally count every case; it might suffice if he ticked off 39 large bales of 10 cases, each intact, and then found a bale of 9 with 1 missing. This fundamental principle of requiring personal knowledge (or opportunity to observe) leads up to the hearsay rule, applicable to statements made by persons not in court. The hearsay rule signifies that when a witness testifies not to what he himself saw or heard but to what he heard some one else say, his testimony on that point, shall be rejected, and the person who said it shall In- produced in the COUrt to testify, the object being to get at the first-hand source of knowledge. Experience shows again and again that when that other person is produced either what he actually said was something very different or else when cross-examined he turns out to have only a scanty trustworthiness. For example, if the sentry in the above in- stance testifies that he did not identify the person running, but after- wards in barracks Sergt. S said that it was X. the court would ex- Evro !■:>.• 107 elude what Sergt. S said, would summon S fco testify in poison, and then it might appear that all Sergt. S knows aboul it is that X came into barracks halt' an hour later looking as if he were out of breath, and this might be connected up with an errand on which X had B sent, b t y testimony of his captain. The hearsay ride, therefore, is a corollary ol' the principle that a witness must ; rom what he has himself seen and heard, and not from what a. fther person has told him or written to him. 221. Hearsay evidence. — The hearsay rule is subject to some well- established exceptions: most of them are based on the general prin- ciple that there is an unavoidable necessity for using die hearsay, because the person is deceased or for some other reason can not be secured as a witness. These exceptions are now settled, however, into fixed rules, irrespective of the above principle. Nevertheless, in courts-martial the liberal principle, now adopted in one or two States, may well be followed in extreme cases, viz, wherever the person, whose statement is desired to be off ered (whether written or oral), is deceased at the time of the trial, and was a per- son having personal knowledge of the facts, his statement may be admitted, in the discretion of the court. The following are familiar instances of hearsay in court-martial cases: (1) A soldier is being tried for desertion. Pvt. A is able to testify that Pvt. B told Pvt. A that the accused told Pvt. B that he (the accused) intended to desert at the first opportunity. Such testimony froni Pet. A would be hearsay and would be inadmissible. (2) A soldier is bein. and 108 MANUAL FOB COTJBTB M UtTIAl . e third instance by the proprietor, but they can not be proved by say evidence. If i>\ idence is hearsay it does aot become admissible because it was made to an officer in the course of an official investigation. For in- • •. in illustration (1), if Pvt. B had made his statement to Capt. C in the course of an official investigation by Capt. C, the statement would still be hearsay and inadmissible. Official statements and opinions as to either guilt or innocence expressed by an officer, as, for instance, a company, regimental, or department commander, or by a stair officer, in an indorsement, is not admissible in evidence by reason of its official character or the rank or position of the officer making it, as it would be hearsay. Xor is such a statement or opinion evidence because it is among papers r> ferred to the trial judge advocate with the charges. It would be i: regular to permit such statements or opinions to come to the atten- tion of the court. If they do become known to the court they should, of course, not be considered in arriving at a finding or sentence. 222. Dying declarations. — On trials for murder and manslaughter, the law recognizes an exception to the rule rejecting hearsay by allowing the dying declarations of the victim of the crime, in regard to the circumstances which produced his condition, and especially as to the person by whom the violence was committed, to be detailed in evidence by one who heard them. The reason for admitting such declarations where the victim believes death is impending is that his belief is equal to the sanctity of an oath in causing him to tell the truth. It is no objection to their admissibility that they were brought out in answer to leading questions or upon urgent solicita- tions addressed to him by any person or persons; and if, instead of. speaking, he answered the questions by intelligible signs these signs may equally be testified to. Dying declarations are admissible as well in favor of the accused as against him. It is to be remarked that evidence of dying declarations made as such usually are under circumstances of mental and physical depreciation and without being subjected to the ordinary legal tests are generally to be received with great caution. (Winthrop, p. 493.) 223. Res gestae. — Another exception to the hearsay rule consists of the inculpatory or exculpatory declarations or statements that con- stitute part of the res gestae. By the res gestae is meant the cir- cumstances and occurrences substantially contemporaneous with the facts at issue that explain and elucidate the character and quality of such facts. Such arc threats or declarations of the accused in connection with his commission of the crime that indicate his intent or knowledge; declarations or exclamations of a party injured that go to indicate tin' nature of the violence and the parties responsible; language of accomplices; cries of bystanders; facts, circumstances, EVIDENCE. 109 and declarations shewing premeditation and preparation for the crime. All such may be established by the testimony of persons who heard the utterances, etc. All such declarations and statements must be made so near in time to the principal transaction as to preclude the idea of deliberate design or afterthought in making them, but it is not essential that they should have been made in the presence or hearing of the accused. Nor does it matter that the party mak- ing them would be incompetent to testify in the case. For instance, the statements of a wife under such circumstances would be admissible against her husband. Where the crime committed is the culmination of a series of acts, such as in riots, etc., the res gestae rule applies to all acts and declarations of the rioters and of bystanders that would tend to indicate purpose, motive^etc. For instance, the exclamation of a bystander who was witnessing the building of barricades in a street : " My God, they arc getting ready to resist the police ! " would be admissible as tending to indicate the purpose of that transaction where the killing of certain of the police resulted from a fire directed from such barricades, though the killing did not occur until the next day. The res gestae is considered as an act connected with or an incident of a main transaction, and not as testimony, and, as soon as it assumes the character of a narra- tion, rather than a spontaneous exclamation that there is no probable ground for belief was inspired by a desire to influence the case, it is inadmissible as falling under the hearsay rule. The application of the rule of res gestae is not limited strictly to circumstances and occurrences contemporaneous with the principal facts at issue nor with the transactions leading up to the principal facts but would extend to a case of identification, as when, for instance, a party who has seen the commission of a crime and afterwards sees the accused and spontaneously identifies him by some such exclamation as " There's the man that did the killing,*' although such statement as to identification may have been made days after the principal act was committed. The following examples illustrate what constitute the res gestae: Where the accused is charged with sleeping on post, and it appears that the officer of the day or corporal of the guard, in searching for the accused, found him sitting down with his rifle across his knees and his chin on his chest, what they did and said to each other and to the accused, and the accused to them, in what led up to and imme- diately followed their efforts to ascertain whether or not he was asleep, all constitute parts of the res gestae. Where a soldier is charged with murder, man-laughter, or assault, and the party against whom the violence is offered is another soldier, and the wife of the former, while walking with the Latter, exclaims, "Run! here comes my jealous husband, and he will kill you!" her 110 MANUAL FOB GGUBXS-MARTIAL. exclamations would be admitted as part of the res gesta?. If the sol- dier had then fled to his house pursued by her husband, and she had followed to deter him from injuring the other party and later had run from the house shouting, "My husband is killing Jones!" or "ha- just killed Jones!" her exclamations would be admissible as constituting part of the res gestae. If a party in the next room had heard a shot and then a voice that he recognized as Pvt. Joneb's " ^ ou shot in" lor i' renge and nothing else," the declaration would be considered as a part of the res gestae. A liberal use of this exception may well be made. 224. Evidence of conspirators and accomplices. — In cases where several persons join with a common design in committing an offense all acts and statements of each of them made in furtherance of the offense are admissible against each of the others. Only where the state- ments of such conspirator fall within the rule laid down for admis- sion of evidence as a part of the res gestae could such statements be admissible for the defense. The declaration of a conspirator, how- ever, made after the common design is accomplished or abandoned, is not admissible against the others. Such accomplishment or aban- donment, however, should be considered as extending to any acts and statements in furtherance of an escape. It is immaterial whether such acts or statements were made in the presence or hearing of the other parties. They are binding upon all parties if they are in fur- therance of the common design. Foundation must first be laid by either direct or circumstantial evidence sufficient to establish prim* facie the fact of conspiracy between the parties, unless the judge advocate states that the conspiracy will later appear from evidence to be adduced. While in Federal courts and courts-martial corrobo- ration of the testimony of a coconspirator, or accomplice, need not be required, yet from the character of the associations formed the uncorroborated testimony of a coconspirator, or accomplice, should be received with great caution. 225. Confessions. — Another exception to the rule excluding hearsay evidence is the rule that admits testimony as to confessions of guilt made by the accused. The most common form of confession is that contained in the plea of guilty made by the accused in open court in answer to a charge. This is not the kind of confession referred to as constituting an exception to the hearsay rule. The confessions referred to are those made out of court, and to be admissible must be offered in their entirety and not merely the parts disadvantageous to the accused. Before a confession of the accused not made in open court can be testified to the following foundations must be laid by the judge advocate: (a) There must be corroborating evidence, either direct or circum- stantial, outside of the confession itself, that the crime charged has- EVIDENCE. Ill been committed. This is what is technically known as the rule requiring proof of the corpus delicti,' that is. some proof of the fact thai the crime charged has probably been committed by some one, so that there will be some, corroboration of the confession. It is not requisite that this outside evidence constituting proof of the corpm H shall be sufficient to convince the court beyond a reasonable doubt of the guilt of the accused, nor need it cover every clement contained in the charge. For instance, where desertion is charged proof of absence without leave would be considered as proving the corpus delicti; where the charge is that a sentinel had left his post before being regularly relieved it would be sufficient to prove that he was not on his post during his period of duty; where a homicide is charged the proof of the death of the person charged to have been killed amounts to proof of the corpus delicti; and in cases of lar- ceny and selling clothing the fact that the property alleged to have been stolen or sold was missing is sufficient proof. (o) It must be affirmatively shown that the confession was entirely voluntary on the part of the accused. A confession is, in a legal sense, " voluntary " when it is not induced or materially influenced by hope of release or other benefit or fear of punishment or injury inspired by one in authority, or, more specifically, where it is not induced or influenced by words or acts, such as promises, assurances, threats, harsh treatment, or the like, on the part of an official or other person competent to effectuate what is promised, threatened, etc.. or at least believed to be thus competent by the party confessing. And the reason of the rule is that where the confession is not thus voluntary there is always ground to believe that it may not be true. (Winthrop, p. 496.) In military cases, in view of the authority and influence of superior rank, confessions made by inferiors, es- pecially when ignorant or inexperienced and held in confinement or close arrest, should be regarded as incompetent unless very clearly shown not to have been unduly influenced. Statements, by way of confession, made by an inferior under charges to a com- manding officer, judge advocate, or other superior whom the accused could reasonably believe capable of making good his words upon even a slight assurance of relief or benefit by such superior should not in general he admitted. Thus in a case where a confession was made to his captain by a soldier upon being told by the former that "matters would be easier for him," or "as easy as possible, 33 if he confessed, such confession was held not to have been voluntary and therefore improperly admitted. And it has been similarly ruled in cases of confessions made by soldiers upon assurances being held out or intimidation resorted to by noncommissioned officers. (Wir- throp. p. 498.) But confessions made by private soldiers to officers or noncommissioned officers, though ^>ot =ho^ +o have 112 MANUAL FOR COURTS-MARTIAL. been made under the influence of promises or threats, etc., should, l \ ii'\v of the military relations of the parties, be received with caution. Of course, the above principles apply to a written confes- sion as well as to a verbal one. In some cases before courts-martial it appears that the accused has signed a paper confessing his guilt, stating in the paper that he confesses freely without hope of reward or fear of punishment, etc. Such statements are not conclusive that the confession was voluntary. Evidence may be introduced. If the evidence shows the statement was not in fact voluntary, it should not be considered by the court, Considering, however, the relation that exists between officers and enlisted men and between an investigating officer and a person whose conduct is being investigated, and the obligation devolving upon an investigating officer to warn the person investigated that he need not answer any question that might tend to incriminate him, con- fessions made by soldiers to officers or by persons under investigation to investigating officers should not be received unless it is shown that the accused was warned that his confession might be used against him or it is shown clearly in some other manner that the confession was entirely voluntary. In view of the peculiar conditions of mind and body under which accused persons are often placed when making confessions, of the liability to mistake on the part of the witnesses who repeat them when oral, and of the tendency of these latter to exaggerate through a zeal for conviction, evidence of confessions, unless corroborated by other reliable evidence, is in general to be received with caution. Where, however, a confession is explicit and deliberate as well as voluntary, and, if oral, is proved by a witness or witnesses by whom it has not been misunderstood and is not misrepresented, it is indeed one of the strongest forms of proof known to the law (Winthrop, p. 499). Courts should bear in mind that mere silence on the part of an accused when questioned as to his supposed offense is not to be treated as a confession. Although the confession, because not voluntary, is inadmissible, yel any information given in the confession that leads to the dis- covery of relevant facts will not render testimony of such facts inadmissible, and it may be further shown, by way of corroboration of such facts, that the discovery was either wholly or partially due to the information thus obtained. 226. Admissions against interest. — Somewhat connected with the sub- ject of confessions is that of declarations or admissions against one's own interest. This constitutes another exception to the rule exclud- ing hearsay. In many instances the accused, after the commission of an offense, makes statements which fall short of a full confession of guilt but do constitute important admissions as to his connection EVIDENCE. 113 ■with the offense. The rule is that such admissions if against his own interest may be admitted in evidence. For instance, in a case of homicide in a dance hall, if the accused when arrested made the statement that he was in the hall when the homicide took place, such a statement is admissible as against his interest. Admissions against penal interests of parties other than the ac- cused or those connected with him in the commission of the crime charged, are not admissible as evidence. Such persons ought to be summoned as witnesses and examined as to such supposed admis- sions or confessions. 227. Privileged communications. — A privileged communication is one that relates to matters occurring during a confidential relation, which it is the public policy to protect. A witness can decline to answer a question touching such a communication. The confidential relations that were protected at common law and which are met with in court- martial practice are the following: State secrets. — Communications made by informants to public offi- cers engaged in the discovery of crime are privileged. The delib- erations of courts and of grand and petit juries are privileged, but the results of their deliberations are not privileged. Diplomatic cor- respondence, and, in general, all oral or written official communi- cations which, in the opinion of the President, would be detrimental to the public interests, and official communications between the heads of the departments of the Government and their subordinate officers are privileged. Were it otherwise it would be impossible for such superiors to administer effectually the public affairs with which they are intrusted. Husband and wife. — Communications between husband and wife are privileged. Attorney and client. — The testimony of the attorney, his clerk, interpreter, stenographer, agent, or other employee as to communi- cations between the client and the attorney, made while the relation of attorney and client existed and in connection with the matter for which the attorney was engaged, will not be received by a court, un- less siuh communications clearly contemplate the commission of a crime; i. e., perjury, subornation of perjury, etc. Of course, com- munications prior to or subsequent to the relation are not privileged. The client, but not the attorney, may waive this privilege. Police secrets. — The privilege that extends to communications made by informants to public officers engaged in the discovery of crime should be given a common-sense interpretation. The public interests would ordinarily be prejudiced by reason of the disclosure of such communications in a case — and tins might very reasonably occur where, for instance, the admission of such communications would . —is 9 114 MANUAL FOR COUBTS-MAKTIAL. disclose the identity of parties employed for the detection of crimi- nals or would endanger the party who made such communication, or would injuriously affect the chances <.i securing such agents for the tion of crime in the future. But the material interests of the ed to vindicate his innocence should not he allowed to suffer lusion of such evidence. The purpose of the privilege, extended to communications between Ji.a.sh, attorney and client, which grows out of a recognition of the public advantage that accrues from encouraging free communication in such circumstances, is not disregarded by allowing outside parties who overhear such privileged communica- tion to testify to what they have overheard. It would not be per- mitted, however, for one of the minor children of the parents, who might reasonably be presumed by the parents not to understand what talking about, to testify to communications overheard by such child. 228. Privilege of wife and husband to testify. — At common law the early rule was that neither husband nor wife is competent as a wit- ness against the other, but later admitted an exception in a case of bodily injury indicted by one of them upon the other. Certain departures have been made from the common-law rule by i -a I statutes and decisions of the courts which, giving considera- tion to the reasons — i. e., the necessities of justice that demand relax- ation of the rule in cases of bodily injury — have extended the field of instances to which the necessities of justice must necessarily apply In any prosecution for bigamy, polygamy, or unlawful cohabita- tion under any statute of the United States, the lawful husband or of the accused shall be a competent witness, and may be called but shall not be compelled to testify in such proceedings, and shall be compelled to testify * * * without the consent of the husband or wife, as the case may be. (Act of Mar. 3, 1887, 24 Stat., i A married woman is excluded as a witness from motives of public policy. (Lucas v. Brooks, 18 Wall., 436, 453.) The wife should be permitted to testify against her husband, even without his consent, whenever she is the particular individual directly injured by i he crime committed by her husband and the facts are peculiarly within her knowledge and impossible or difficult of proof by any witness other than the wife. (State (Ma) v. Bean, 78 S. W., 640.) It would therefore be appropriate m Buch cases against a husband as bodily injury of any character Inflicted by him upon her, bigamy, polygamy, or unlawful cohabitation, abandonment of wife children, or failure to support them, for the wife to be permitted to testify against her husband. EVIDENCE. 115 The principle enunciated above as to permission of the wife to testify should be extended to a husband in analogous cases. (<". M. ( . .!/'.. No. ' } .) 229. Telegrams not privileged. — Neither private telegrams nor the information regarding them that comes to the knowledge of telegraph operators, either military or civil, are privileged. Telegraph opera- tors, both military and civil, may be subpoenaed to testify before a court-martial as to private telegrams, and private telegrams may be brought before a court-martial by the usual process. 230. Confidential papers. — The reports of special inspections by the Inspector General's Department are confidential documents and the testimony taken is considered a part and parcel of such reports. There is no law or regulation which requires copies of the evidence contained in these confidential reports to be furnished to officers whose conduct has been under investigation. So also the reports of the Judge Advocate General to the Secretary of War have always been regarded as confidential communications and it has not been the practice to furnish copies of them to parties outside the department in the absence of special authority from the Secretary of War. If the prosecution has had access to any such document, fairness re- quires that the accused should have equal access to it. 231. Communications from officers or soldiers to medical officers not privileged. — It is the duty of medical officers of the Army to attend officers and soldiers when sick, to make the annual physical examina- tion of officers, and examine recruits for enlistment, and they may be specially directed to observe an officer or soldier or specially to examine or attend them; such observations, examination, or at- tendance would be official and the information acquired would be official While the ethics of the medical profession forbid them to divulge to unauthorized persons the information thus obtained and the statements thus made to them, such information and statements do not possess the character of privileged communications. If the medical officer, when called as a witness before a court-martial, refuses to testify to such matters, he is subject to charges under A. W. 96. 232. Communications between civilian physicians and patients not priv- ileged. — Neither are the communications between civilian physician and patient privileged, and the refusal of a physician to testily to such communications would subject him to the prosecution provided by A. W. 23. 233. Compulsory self-crimination prohibited. — The fifth amendment to the Constitution of the United States provides that in a criminal case the person shall not be compelled "to be a witness against himself." The principle embodied in this provision applies to trials by courts-martial and is not limited to the person on trial, but ex- 116 MANUAL FOR COURTS-MARTIAL. tends to any person who may be called as a witness; A. W. 24, in furtherance of this principle, provides thai no witness before a mili- tary court, commission, court of inquiry, or board, or before any •. military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board, shall be compelled to incriminate himself or to answer any questions which may tend to incriminate or degrade him. The constitutional guaranty contained in the fifth amendment is predicated upon the "well established and universally accepted maxim of the common law that a witness shall not be compelled to answer any question that tends to criminate him or to expose him to criminal prosecution or to a penalty" (Rice, p. 298), nor to an- swer any question not material to the issue that may tend to degrade him. It must be noted that this rule draws a distinction between questions that tend to criminate and those that tend to degrade, the protection extending in the first instance against questions whether material or not, while in the second instance it extends only to ques- tions which are not material to the issue. And this is not limited to the main issues in the case; for instance, "as the credibility of a witness is always an issue, he must, therefore, answer questions which are no other way material than as affecting his credibility." (Roscoe, p. 149.) (a) Rule as to questions tending to degrade. — Where common-law rules have been written into our Constitution and laws they have been given the construction that attach to them under common-law practice, and so the provisions of A. W. 24 must be presumed to have been declaratory of the common-law protection afforded witnesses and, as to questions tending to "degrade," must be accepted with the distinction drawn by the common law — that is, as extending only to questions, not material to the issue, that tend to " degrade." (b) Where privilege as to self -crimination ceases. — As in the fol- lowing cases the witness would not be liable to the law's punishment, his privilege as to self-incrimination ceases: Conviction and the suffering of the punishment; acquittal, or other former jeopardy; abolition of the general crime, subsequent to its commission (provided the rule of criminal law thereby exonerates prior offenders) ; lapse of time barring prosecution of the particular offense; executive pardon for the particular offense; statutory am- nesty, before or after the act, for the particular criminal act or for the offender. (Wigmore, p. 31G3.) 234. Privilege against self-crimination is a personal one. — The privi- lege of a witness to refuse to respond to a question, the answer to which may incriminate him, is a personal one, which the witness may exercise or waive as he. may see fit. It is not for the judge advocate or accused to object to the question or to check the witness, or for EVIDENCE. 117 the court to exclude the question or direct the witness not to answer. Where it appears that the witness is ignorant of his rights and that the answer to a question might incriminate him, the president of the court will inform him of his right to decline to make any answer which might tend to incriminate him. 235. Procedure where alleged incriminating question is asked. — Where the court overrules an objection made by a witness that the answer to a question will incriminate him the witness should answer the question. If he is a person subject to military law ami refuses to answer, charges may be preferred against him under A. W. 96. If he is a civilian witness the facts should be certified to the United States district atttorney by the court with a view to his prosecution as provided in A. W. 23. (See A. W. 23 as to other tribunals and agencies.) In any case of refusal to answer a question after the court has held it to be a proper one, the refusal may be commented on by the judge advocate or counsel in his remarks to the court. As to civilians, as well as those in the military service, the national- defense act (sec. 108, Act June 3, 1916, 39 Stat., 209) provides that presidents of courts-martial and summary court officers of the Na- tional Guard, not in the service of the United States, shall have power " to issue subpcenas and subpcenas duces tecum and to enforce by attachment attendance of witnesses and production of books and papers and to sentence for refusal to be sworn or to answer as pro- vided in actions before civil courts." In such cases the punishment would be for contempt of court. 236. Not self-crimination to require accused to submit to physical examination. — " The prohibition of the fifth amendment against com- pelling a man to give evidence against himself is a prohibition of the use of physical or moral compulsion to extort communications from him and not an exclusion of his body as evidence when it is material." (Holt v. U. S., 218 U. S., 245.) In addition to this rule of general application in the Federal courts it has been decided that: When a person enlists in the military service he waives or surren- ders, during the period of his enlistment, some of the rights which he possessed as a citizen. He does this without compulsion, the sur- render resulting from his voluntary enlistment in the military serv- ice. (U. S. v. Grimley, 137 U. S., 147.) Among other incidents of the military status to which he volun- tarily submits himself is that of physical examination by proper military authority such, for example, as is required by regulation when he enlists in the military establishment, at which time his linger and thumb prints are takeu, and any marks <>r sears which appear on any part of his body are made the subjed <>!' official record on a card provided for that purpose by The Adjutanl General, and the right to impose, and the corresponding duty to submit to, a proper llg MANUAL FOR COURTS-MARTIAL. icaJ examination, a* the discretion and upon the order of a com- : military superior, continues to exist so long as be remains Loe in the operation of hi I of enlistment. ..- ar e illusl £ what might b I without violating the privilege contai] &&h amendment: The admission of testimony as to marks and scars found u. ttdant, in a criminal prosecution, during a forei- him with a view to aseertauaing his identity for the purpose of im, is not prohibited. (< Indiana, L. R. A.. B ' Cye^ 4<>D Upon the trial, a question was rai the identit itmess testified that he knew the defendant, and knew that he had tattoo marks (a female head and bust) on right forearm. The court thereupon compelled the defendant, against his objection, to exhibit his arm, in such a manner as to show 3 to the jury. (State v. All Chuey, alias Sam Good, 14 I An officer also of the Army was ordered to a place tor Ldenti- fieat i tan witnesses in relation to charges which were pend- st the officer, and it was held that such an order would not ation of the officer's privilege, as it called for no testimonial communication from him. It follows that it would be appropriate for the court to order the accused to remove his clothing for the purpose of examination by the or by a surgeon who would later testify as to the results of his ■:nation and, upon refusal to obey the order, might have his doth ed by force. The accused might likewise be com- pelled lo try on clothing or shoes or place his bare foot in tracks, etc., but where resort to extreme force would be necessary to compel com- pliance in the presence of the court it would comport more with the dignity of the court to have a surgeon make the examination out of the presence of the court and testify as to b urina- tion, or toad\ i.-e the accused aslothe purpose of the examination and to warn him that his refusal to obey would he considered as an admission on his part of what was sought to be ascertained by the examination, This conclusion would be quite within Legail bounds as to presumption of : 237. Manner of proving contents of writing.— A writing is the best evidence of its own contents and must be introduced to prove its contend . Bid ifii hasbeenlosi or destroyed or ii is otherwise satis- factorily shown that the writing can not be produced, then the con- tents may be proved bj a copy or by oral testimony of witnesses who have seeii the writing. Under this rule if it is desired to prove the contents of ;L private letter or other unofficial paper, or an ollicial paper such as a pay voucher, written claim against the Government, EVIDENCE. 119 pay roll or muster roll, company morning report, enlistment pa etc., the strict and formal method of doing so is to prove by proper evidence that the writing is in fact what it purports to be, and I introduce in evidence the original or a properly authenticated i • In order to prove that a writing is what it purports to be, in of a private letter, the person who received the letter should testify that he received it and he should identify it. Then it should b< proved that the signature is in the handwriting of the purported writer of the letter. But in proving the genuineness of letters the rule is that the arrival by mail of a reply purporting to be from the addressee of a prior letter duly addressed and mailed, is sufficient evi- dence of the genuineness of the reply to justify its introduction in evidence. A similar rule prevails as to telegrams purporting to be from the addressee of a prior telegram or telephone message. If the writing is an official document such as a pay voucher, the person having official custody should produce it in court and testify that he is the custodian of the writing and that it is the pay voucher of the person whose name is signed. The signature to the voucher should be proved to be genuine if that is not admitted. In court- martial practice the opposing party usually admits a public document without requiring such strict proof. The entries in pay vouchers, muster and pay rolls, company morning reports, and other public records used in the Army, are open to inspection by both parties, and contain numerous entries not pertaining to the case being tried. Ii is the practice, in the absence of an objection, to prove their contents by the oral testimony of a witness, usually the custodian, reading the material matter in court. When the original consists of numerous writings which can not conveniently be examined by the court, and the fact to be proved is the general result of the whole collection, and that result is capable of being ascertained by calculation, the calculation may be made bj some competent person and the result of the calculation testified to by him, as, for instance, if the fact to be proved is the balance shown by account books. In such case the opposite party should have access to the books and papers from which the calculation is made. It is customary for the party introducing a writing in evidence to read it to the court. But unless the court directs it to be read at once it may be read at any time. Section TV. DOCUMENTS. 238. Public records. — An important exception to the rule that the contents of a writing must be proved by the writing itself is in the case of public records required to be preserved on file in a public 120 MANUAL FOR COURTS-MARTIAL. . in which case duly authenticated copies may be admitted in evidence equally with originals without first proving that the origi- nals have been lost, destroyed, or their absence accounted for in some other way. This exception is made necessary by the inconvenience to public business thai would result if such records were removed. ["•>. • following order covers this exception so far as concerns records papers in the War Department and its bureaus and in military offices: Copies of any records or papers in the War Department, in any of iireaus, or in an office of any of the supply departments; or at the headquarters of an army, field army, division, brigade, or regi- ment; or of a territorial division, territorial department, or post, if authenticated by the impressed stamp of the bureau, office, or head- quarters having custody of the originals (for example, "The Adju- tant General's Office, official copy"), may be admitted in evidence equally with the originals thereof before any military court, commis- sion, or board, or in any administrative matter under the "War Department. (G. O. 16, W. D., 1912.) 239. Certain official writings are evidence of facts recited therein. — Where the law requires that the evidence of certain facts and events shall be recorded in certain writings, the original writing containing this evidence is competent, i. e., prima facie evidence of the facts and \ents recorded in it. For instance, the original of an enlistment paper, the physical examination paper, outline figure card and finger-print card, and the original morning report sheet are com- petent evidence of the facts recited in them. By authorit}^ of the War Department order, properly authenticated copies of these papers may be admitted in evidence equally with the original. (See par. 238.) A descriptive and assignment card, however, is not an original paper. All the information it contains is compiled from other origi- nal sources, and therefore it is not evidence of the facts recited in it. 240. Comparison of handwriting. — The common-law rule of evidence would not permit a comparison of handwriting unless the writing to be used as a standard was properly in the case for other purposes than mere comparison. This rule was changed by act of Congress approved February 26, 1913 (37 Stat, 683), which provides— That in any proceeding before a court or judicial officer of the United States where the genuineness of the handwriting of any per- son may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by wit- nesses, or by the jury, court, or officer conducting such proceeding to prove or disprove such genuineness. But before admitting such specimens of handwriting, satisfactory evidence should be offered as to the genuineness of the same. EVIDENCE. 121 The rule prescribed by Congress will govern in courts-martial procedure. 241. Use of memoranda. — Memoranda may be used to aid the memory or to supply facts once known but now forgotten. Memoranda are therefore of two sorts: First, if the Avitness does not actually re- member the facts but relies on the memorandum exclusively (as in the case of a bookkeeper using an old account book), then the wit- ness must be able to guarantee that the record accurately represented his knowledge and recollection at the time of its making, but it is not necessary that he should himself have made the record if he can state from his present recollection that it was correct when made and the entries must have been made at or near the time, and the recollection at such time must have been fresh as to the i led. Second, if the witness can actually remember the facts and merely needs the memorandum to stimulate or revive his memory, or a part of it, then the above limitations do not strictly apply. But the court should see to it that no attempt is made to use such a paper to impose a false memory on the court under guise of refreshing it. The memorandum to be used must always, on demand, be shown to the opponent for purposes of inspection and cross-examination, and fairness and justice require that where a memorandum is con- sulted before trial for refreshing a witness's recollection, statement should be made by the judge advocate or counsel to that effect, and the memorandum should be brought into court by the side whose witness has so consulted it. 242. Memorandum as evidence. — Where a memorandum does not serve to refresh the recollection of the witness, but he can state that it was made when his memory was fresh and can give the guaranty of accuracy and recollection called for by the preceding section, the memorandum itself will be admissible. Where the witness's cer- tainty rests on his usual habit or course of business in making mem- oranda or records, it is sufficient. 243. Memorandum for refreshing recollection. — Where a witness states that the memorandum to be used refreshes his recollection to the extent of his now remembering the data contained therein, the common rule is to have him testify as to such facts without admit- ting in evidence the memorandum itself. 244. Books of account. — Entries in books of account, where such books are. proven to have been kept in the regular course of lius'mess, and the entrant is dead, insane, out of the jurisdiction of the court, or otherwise unavailable to testify, are admissible as evidence. Also the lack of an entry in a series of written entries is admissible as an implied statement that no events occurred of the kind that would have been recorded. 122 MANUAL FOR COURTS- MARTIAL. Where the entrant i to testify in court, books of account ■will be used, just as memoranda are used for the purpose of refresh- tiou of the ■ 'ence in eo] • ith his testimony. Where the entrant only records an oral report or writ randum made in the regular course of business by another person or persons, such other person or persons, if available, nausl be called tify. The ocument of entry must be produced or accounted for. Where a composite entry is used, the extent to which inter- medj i anda must be produced depends on the circumstances of each case. As between ledger and daybook or other kinds, the hook- required is that which contains the first regular and collected ; of the transactions. (Wigmore, sec. 1530.) 245. Maps, photographs, etc. — Maps, photographs, sketches, etc., as to localities, wounds, etc., are admissible as evidence when properly led by the party that made them or when coming from official sources that are a guaranty of truthfulness and accuracy. This r of evidence is capable of gross misrepresentation of facts and should be carefully scrutinized. Finger prints, upon such veri- !i or guaranty, are admis Section V. EXAMINATION OF WITNESSES. 246. Witnesses examined apart from each other. — "Witnesses, after having been first sworn as provided in par. 134, are usualty examined t from each other, no witness being allowed to be present during the examination of another who is called before him. But this rule is not inflexible; it is in practice subject to the discretion of the court, nor is it ever so rigidly observed as to exclude the testimony of a person because he has been present at the examination of other witnesses. 247. Objections to competency; when made. — Any objection to the witness's competency should be made before he is sworn. If his in- competency should later appear, however, a valid objection should be sustained. 248. Number of witnesses required. — Though there are occasional dangers in trusting to a single witness, the testimony of a single qualified witness to the facts in issue would suffice to sustain a con- viction, except as to (1) treason, where there must be two witnesses Eying credibly to the same, overt act, or (2) perjury, where there must b" either (a) a second witness to the falsity alleged or (b) a cor- roboration of a single witness by some other form of evidence. The EVIDENCE. rule as to perjury does not apply, however, \ Q be inferred from a contradictory statem more's P. C, 338, 339.) For with a perjury as to facts di <>r written testimony springing from himself, with ei ing the corrupt intent; in cases where the perjury icted by a public record, proved to have been well know] the defendant when he took the oath; and swearing can be proved by his own letters relating to the fact s\. to. or by other written testimony existing and being found in the possession of a defendant and which has been treated by him containing the evidence of the fact recited in it. (U. S. v. Wood, 14 Pet., 430.) (See par. -224 as to corroboration of an accomplice and see par. 225 as to corroboration of a confession.) 249. Order of examination of witnesses. — While the proper and usual order and sequence of examination of witnesses contemplates that the -sses for the prosecution shall be called first and then the wit- s for the accused, and afterwards the witnesses for the prosecu- tion in rebuttal of testimony brought out by the accused, and then the witnesses for the accused in rebuttal of those last introduced by the prosecution, and then witnesses by the court; and that the method of examining each witness shall be direct examination, cross-examina- tion, redirect examination, recross-examination, and examination by the court, the court may, in the interest of truth and justice, call or recall witnesses, or permit their recall at any stage of the pro- ceedings; 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 om ould leave the investigation incom- plete. In all such cases both parties must be present, and any I mony thus received would be subject to cross-examination and re- buttal by the party to whom it may be adverse. 250. Direct examination.— The first question to be asked each wit- ness, whether called for the prosecution or defense or by the 1 1 will be, whether he knows the accused and if he does to state who he is. This question is always asked by the judge advocate. The ac- cused having been identified the examination of the witness is con- tinued by the person railing him. All questions and answers are ■ i ded in full, and as far as possible in the exact language of the witness. If an objection is made bo a question, the reason for the objection will be stated. 251. Cross-examination.— 1 n general the cross-eocaminatioD must be limited to matters brought out by the direct examina tion of the wit- 124 MANUAL FOR COURTS-MARTIAL. ness, but in the discretion of the court exceptions may be made to this rule. As it is the purpose of the cross-examination to test the credibility of the witness it is permissible to investigate the situation of the witness with respect t<> the parties and t«> the subject of the litigation, his interest, his motives, inclinations, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description. Lead- ing questions may be freely used on cross-examination. (Davis, p. 285.) 252. Redirect and recross-examination. — Ordinarily the redirect ex- amination will be confined to matters brought out on the cross- examination, and the recross-examination will be confined to matters brought out on the redirect examination. But in these matters the court, in the interest of truth and justice, should be liberal in relax- ing the rule. 253. Examination by the' conrt. — The court or a member may ask questions of a witness when it is apparent that the examination of the witness already made has failed to bring out matters material to the issues, and for the same reasons a witness may be recalled or a new witness summoned by the court. 254. Leading questions. — Leading questions, that is, questions which suggest the answer it is desired the witness shall make, or which, embodying a material fact, are susceptible of being answered by a simple yes or no, should not be asked. For example, "Did you not see the accused leave his quarters with a bundle under his arm?"' is a leading question. In such case the question should be "Did you see the accused?" If the answer is in the affirmative, add "What was he doing?" Again, for example, the question, "Did you hear the accused say he did not intend to come back?" would be leading. The proper form of the question should be: "Did the accused say anything?" If the answer is in the affirmative, add " State what he said." So, where a knife is introduced in evidence a witness should not be asked whether that is the knife he saw the accused stab Pvt. A with, but he should be asked whether he recog- nizes the knife, and if he does, where he saw it and what was done with it, etc. The following are the exceptions to the rule that lead- ing questions will not be asked : (1) Leading questions may be asked on cross-examination. (2) To abridge the proceedings, the witness may be led at once to points on which he is to testify, and the admitted facts in the case may be recapitulated to him. The rule is therefore not applicable to that part of the examination of a witness which is merely intro- ductory. For example, in a desertion case where the accused admits that on a certain day at a certain place he was apprehended as a EVIDENCE. 125 deserter by a policeman, the hitter when on the stand may have his attention directed at once to the occasion by such a question as whether at a certain time and place he arrested the accused as a deserter. The witness having answered the question in the affirm- ative, in the next question lie might properly be asked to state the de- tails connected with the arrest. So in a case of disobedience of orders where there is no dispute that the alleged disobedience took place at a certain time and place and that it involved certain persons, the witness might properly be asked whether he was present at the place where and time when the accused was placed in arrest by a cer- tain officer for not carrying out a certain order. The witness having answered in the affirmative, he may be asked to state all the cir- cumstances. (3) When the witness appears to be hostile to the party calling him or is manifestly unwilling to give evidence. (■4) "When there is an erroneous statement in the testimony of the witness, evidently caused by want of recollection, which a suggestion may assist, as, for instance, where he misstates a date or an hour. (5) Where, from the nature of the case, the mind of the witness can not be directed to the subject of the inquiry without a particular specification of it as where he is called to contradict another witness who has testified that the accused made a certain statement on a certain occasion in the hearing of a number of soldiers, each of them may "be asked whether he heard the accused make the statement. The court, in its discretion, would be justified in allowing liberal departures from the rule. 255. Recalling' of witnesses. — Where a witness is recalled to the wit- ness stand he will not be sworn again, but will be reminded that he has been sworn in the case and is still under oath. A failure to so remind him, however, does not affect the validity of the trial and will not be ground for rejecting the testimony. Section VI. CREDIBILITY OF WITNESSES. 256. What credibility consists in. — The credibility of a witness is his worthiness of belief, and is determined by his character.' by the acute- ness of his powers of observation, the accuracy and retentiveness of his memory, by his general manner in giving evidence, his relation to the matter in issue, his appearance and deportment, prejudices, by his general reputation for truth and veracity in the community where he lives, by comparison of his testimony with other statements made by him out of court, by comparison of his testimony with that of others, etc. From all these the court will draw its own conclusions as 126 MANUAL FOB OOUTLTS-MABTIAL. to the credibility of the witness, attaching only such weight to his ,- all fche fa to warrant. There may even be cases in court will reject all the testimony of a witness. This i set forth above. No statement will be made lurt of the weight given to any testimony or the amount re- • inform the reviewing authority of which have led to its findings. 257. Proof of character by general reputation. — Where impeachment witness for bad character is undertaken it must be limited to eneral reputation for truth and v< the com- munity in which he lives. For a military man this would mean the t he bore amongst the a of his regiment or com- pnn; mgst those stationed at a • if stationed at or gst the residents of the town. Personal observa- tion as to his character is not admissible. 258. Conviction of crime. — Evidence of the conviction of any cri even by a tribunal and whether felony or misdemeanor, is admi the purpose of diminishing the credit due to his testi- mony. (1 Greenleaf, sec. 876.) It is allowable to ask a witness on cross-examination whether he has ever been convicted of a crime, but if he denies it, proof may only be made by copy of the record of hie conviction. 259. Self-contradiction. — Proof may be offered of inconsistent state- ments made by the witness on specific facts, but on collateral facts the inconsistency can not be evidenced by calling other witnesses to ; P-contradictory assertion. Where, on cross-examination, a witness is questioned as to his self- contradictory statements, his attention should be called to the time, place, and surrounding circumstances and to the person to whom he ■ lined to have made the contradictory statements. Where the contradictory statement is contained in a writing, it need not be shown to the witness before questioning him about it. 260. Prejudice, bias, etc. — Prejudice, bias, relationship, etc., may be shown to diminish the credibility of the witness, cither by the testi- mony of other witnesses or by cross-examination of the witness him- . Such matters are never regarded as collateral. 261. Credibility of accused as a witness. — If the accused testifies, his credibility ' 88 may be attacked on any of the grounds stated in the preceding paragraphs. 262. Proof of contradictory statements out of court. — The strict rule is that, before testimony can be admitted to prove that a witness ha* made out of court statements that are in conflict with his testimony in court, a foundation therefor must be laid by asking the witness on cross-examination whether he has not made on a certain occasion at a certain time or under certain circumstances the alleged contra- EVIDENCE. 127 dictory statement. If the witness admits making such a contradic- tory statement he will be permitted to explain it. If he denies mak- ing it, evidence may be introduced to prove it. 262J-. Impeachment of one's own witness. — The general ride is that a party can not impeach his own witness. This is subject to but few ptions; as, where a party is compelled to call a witness whom the law makes indispensable, or where a witness proves unexpectedly tile or treacherous in his testimony on the stand. Tu pted 3 the impeaching party must first, show that the evidence as £ ,. has taken him by surprise, and that the witness is hostile. The wit- may then be asked if he has made contradictory statements out of court, the time, place, and circumstances of the statement being de- scribed to him in detail, and upon his denial, witnesses may he called in proof that he did make them. In order that one's own witness may Qtradicted, mere silence or ignorance on his part is not sufficient. While a party taken by surprise may impeach his own witness in the cases indicated, he is not permitted to attack his reputation by show- ing that his general character is bad. (C. 3f. C. J/., No. 4-) Section VII. DEPOSITIONS AND FORMER TESTIMONY. 263. Depositions admissible. — Depositions taken under the provision of A. W. 25 and 26 "may be read in evidence before any military court or commission in any case not capital or in any proceeding before a court of inquiry or a military court." 264. Depositions for defense in capital cases. — Deposition testimony may be adduced for the defense in capital cases. (A. W. 2G.) Where the defense calls for imbny in capital cases the witnesses may Eamined as fully as witnesses in a case not capital. 265. Objections as to competency of witness and admissibility of evi- dence. — The same rules as to competency of witnesses and admis- sibility of evidence apply in the taking of evidence by deposition that apply in the examination of a witness before the court, except that a wider latitude than usual should be allowed as to leading ions. If the interrogatories and cross-interrogatories for depositions are prepared for acceptance by the court, in open session, objection to the competency of the deponent, if grounds of objection are known at the time, as well as objections to questions, should be raised at such session, and ordinarily be passed upon by the court at that time. The court should, however, in the interests of justice, entertain such objections when the depositions are offered in evidence, but might in :i proper case call upon judge advocate or counsel for explanation as to why they had failed to make the objection at the proper time. If the interrogatories and cross-interrogatories are agreed upon by both parties in advance of the assembling of the court—and this is 128 manual i <»i: conns maktiai.. tlic usual practice — objections to questions and to the admissibility of evidence "will be made when the depositions are offered in evidence. 266. Examination of deposition by counsel. — Upon receipt of the deposition the judge advocate will advise the accused or his counsel of that faci and will give them an opportunity to examine the deposi- tion before the trial. 267. Heading of depositions. — Ordinarily depositions will be read to the court by the party in whose behalf they are taken, but if the accused is not represented by counsel the judge advocate will read to the court the deposition taken on his behalf, unless the accused requests i<> read them. After being read to the court a deposition ■will be properly marked for identification purposes and attached to the record, and the record will show that it has been introduced and read to the court. 268. Miscellaneous provisions as to depositions. — The party at whose instance a deposition has been taken should not be permitted to introduce only such parts of the deposit ion as are favorable to him or a- he may elect to use: he must offer the deposition in evidence as a whole or not offer it at all. If the party at whose instance a deposition has been taken decides not to put it in, it may be put in e\ idence by the other party. 269. Affidavits not admissible. — Affidavits taken without notice and not as depositions under the provisions of A. W. 25 and 20 arc in no case admissible as evidence unless expressly consented to b} T the judge advocate and the accused with full knowledge of his rights. 270. Certificate of discharge. — The " certificate of discharge " may be used by the defense, either before or after the findings, for proof of good character. 271. Statement of service. — The statement of service and number of previous convictions of the accused, as found in the upper quarter of the front page of the charge sheet, will not be permitted to be seen or examined by members of the general or special court-martial try- ing a soldier until after they have reached their findings. In the event of conviction the accused, if a soldier, will be asked whether such statement of service is correct, and such statement will be examined and considered by the court for the purpose of determining proper punishment in view of length of service. The statement of service may lie used by the defense, either before or after the findings, for proof of good character. 272. Former testir. any before court of inquiry. — The record of the proceedings of a <••" -i of inquiry may be read in evidence before any court-martial or military commission in any case not capital nor extending to the dismissal of an officer, and may also be read in evi- dence in any proceeding before a court of inquiry or a military board: Provided, Thai such evidence may be adduced by the defense in capita] cases or cases extending to the dismissal of an officer. (A. W. 27.) EVIDENCE. 129 The ends of justice would require that the reasonable tests for admissibility laid down in par. 275, as to examination and cross- examination on th.e same issues and as to correctness and complete- ness of the record where former testimony before civil court- and courts-martial is offered, should be applied as to the admission of the record of a court of inquiry. 273. Evidence of pardon. — When a special plea, in bar of trial, based on a pardon, is ottered by the defense, the best evidence of such par- don, if in the nature of an individual pardon, will be the document signed by the President himself, and, if in the nature of a general amnesty, by an official copy of the proclamation or order publishing such amnesty. If such document or order is not sufficiently explicit to determine whether or not the offense for which the accused is on trial is the same as that covered by the pardon, then other evidence must be introduced to fill the gap. Where the pardon is in the nature of a constructive pardon, the evidence will be of such facts and cir- cumstances as it is contended constitute such pardon. 274. Evidence of former trial by court-martial or civil court. — Where a plea in bar of trial, based on a former trial by court-martial for the same offense and conviction or acquittal of the same, is offered for the defense the best evidence of such conviction or acquittal will be the order of the reviewing authority publishing the case. Where such order is not biifficiently explicit to determine whether or not the offense for which the accused is on trial is the same as that the con- viction or acquittal of which he pleads in bar, then the original court- martial record should be offered in evidence. Where a plea in bar is on a former trial and conviction or acquittal by a. Federal court — the action of a State or any other than a Federal court does not operate as a bar to second trial — the best evidence of such conviction or acquittal will be a duly certified copy of the in- dictment and findings and conviction or acquittal, given by the pub- lic officer wlipse duty it is to keep the original. 275. Former testimony in civil courts and courts-martial. — Where a witness, wh/> has testified in either a Federal or State court at a former trial on the same issues raised in the case on trial and was fully examined and cross-examined, is dead or is beyond the reach be process of the court and his personal attendance can not be secured, then the stenographic repori of bis testimony, if proven to be correct and complete by the person by whom it was reported, will ible and may very properly be accorded the same weight as a deposition duly taken on notice. (Chicago, St. P., M. &-0. Ry. I !o. [yers, SO Fed Rep., 361, 365.) Ordinarily, hov situation should be met by the judge advocate and couns< 1 for accused procur- ing in advance of trial a rapher's notes, duly sworn toby him as corred and complete, and submitting it to the opposite party for his inspection. J i' acknowledged to be corred and complete, then such transcript will be received in evidence, 53915°— IS 10 130 MANUAL FOB OOUBTS MARTIAL. Where the testimony d who had testified in a former trial by court-martial, all conditions being approximately the as those cited in the firs! paragraph of this section, the original court-martial record itself will be admissible, and the stenographic reporter will only be called where a question is raised as to the cor- rectness or completeness of the recorded testimony.' [ON VIII. PRESUMPTIONS. 276. Presumptions. — Presumptions constitute a large part of tho law of evidence. They are of two kinds — presumptions of Law and presumptions of fact. 277. Presumptions of law. — Broadly speaking, a presumption of law is a rule of law that when certain circumstai the court must me certain other circumstances. Presumptions of law are di- vided into conclusive and disputable presumptions. In case of a con- clusive presumption of law the presumption can not be contradicted. For example, all residents of a country are conclusively presumed to know its laws. This presumption is in force in the practice of courts-martial so far as concerns offenses that constitute civil crh (As to the modification of the rule as regards knowledge of the Articles of War in case of recruits, see par. 282 ; as to intent, par. 281 ; i ignorance of law, par. 2*2.) In case of a disputable presumption of law, the presumption can be contradicted. For example, it is presumed that a sane person intends the natural and probable conse- quences oi • a person is presumed to be innocent until proven guilty; all persons are presumed to be sane; persons acting as public rs are presumed to be legally in office and to properly perform their duties; and malice is presumed from the use of a deadly weapon. Evidence may be introduced to rebut such presumptions. 278. Presumptions of fact. — Presumptions of fact arc nothing more than logical inferences, from facts already proved, as to the existence of other facts. This kind of a presumption is not made as a rule of law but as a matter of human reason. All evidence in a ca.-e, ex- cept that which directly proves the allegations in the specifications, at once to presumptions of fact. Such presumptions are the ■ of all circumstantial evidence. (Sec par. 204.) It is in mak- ing such presumptions that the members of the court should espe- cial! their common sense and their knowledge of human nature and the E the world. Facts in evidence showing a i,k tive or absence oi" motive on the part of the accused, preparations or the absence of preparations Tor the commission of crime, a failure to account for suspicious cir< showing a criminal con- usness (as concealment, disguise, or flight), the suppression of evidence, the possession of weapons or instruments that might have used in the commission of the offense, the possession soon after larceny or embezzlement of the articles stolen or embezzled, are a proper basis for presumptions of fact. EVID1 131 Also where the existence at one time of a certain condition or shite of t ilings of a continuing nature is shown, the general] presumption S that such condition or state coiuinues to exist, until the i trarv is shown, so long as is usual with conditions or things of thai particular nature. For example, bere is a presumption of continu- ance as to one's residence, until a change is shown, also that one holding an office continues to hold it until the end of the term Ear which appointed or elected and that personal habits have not changed. There is a presumption of fact from the regular course of business in the Post Office Department that a letter when properly deposited in a post-office box or in the place in which letters for mail- ing arc usually deposited, postage prepaid, is received by the ad- see. The presumption w^th regard to the delivery of letters duly posted has been extended and applied to the delivery of tele- grams deposited with a telegraph company for transmission; but delivery of the message to the telegraph company must of coi be shown. There is also a presumption of fact that persons of the same name are the same person. The strength of this presumption will of course depend upon how common the name is and other cir- cumstances. 279. Prima facie evidence. — Prima facie evidence is that which suf- fices for the proof of a particular fact until contradicted and over- come by other evidence. In other words, prima facie evidence justi- fies the court in finding the facts presumed, but in view of the doc- trine of reasonable doubt that always inures to the benefit of the accused from a consideration of all of the evidence presented the court is not required to find the facts presumed. The court i decide, for instance, that the prima facie evidence presented docs not outweigh the presumption of innocence. 280. Intent in connection with crimes. — In respect to the element of intent, crimes are distinguished as follows r Those in which a dis- tinct and specific intent, independent of the mea mtia! to constitute the oifensc, as murder, larceny, burglary, desertion, and mutiny : and those in which the act is the pri I ure. the exi^t- of the wrongful intent being simply inferable therefrom, as rape, perjury, sleeping on post, drunkenness on duty, neglect of duty. In cases of the former class the characteristic intent ran established affirmatively as ■ fact; in the bitter class of y to prove the unlawful act, tor every man is presumed in lav; to 1. -led to do what he actually and the burden of proof is upon him to -how the contrary. I Win- throp, p. i i 881. Intent in military cases.— Military offenses being created by statute, the peculiar statutory intent described in the article, if there 1- one, must be alleged in the specification. The enlistments pro- hibited in A. AV. .".I. Jo,- example, must have heen " knowingly •' made in order to constitute an offense under the statute, ll is simi- 132 MANUAL FOB OOUKTS-MAETIAL. larly essential to some of the offenses described in .'v. W. 55, §6, and 57 that thej be "knowingly" committed; offenses under A. W. 83 and 84 must have been committed "willfully "or " through neglect '; an officer quitting his post on tender of resignation must do so " with intent tn absent himself permanently therefrom" to be triable for the offense described in A. W. 28; and an officer who refuses or "willfully neglects" to deliver an offender to the civil authorities upon application duly made by such authorities subjects himself by such refusal or willful neglect to the penalties set Eorth in A. W. 74. (Davis, 642.) In some instances, however, as in the offenses described in A. W. 61 and 86, no statutory intent is set forth in the article, and none need be alleged in the specifications. In other cases, while no intent is embodied in the article, a particular intent is necessary to the completeness of the offense, and though not set forth in the specification must be established in evidence. Such is the case with respeel to the offense of desertion, the intent being not to return. But whether the intent that is presumed from the commission of an unlawful act or the specific one that mil. proved raises a point in issue the accused in his defense may prove there was actually no intent. If the accused can substantiate such a defense, he must be acquitted or the grade of th^ offense reduced, For instance, from assault with intent to kill to assault. The usual defenses of this character in military practice ranee of military law. ignorance, of fact, drunkenness, and insanity. 282. Ignorance cf law. — Every person is usually presumed to know the ; of Federal, State, and municipal law applicable to the community in which he lives, and a person subject to military law resumed, in addition thereto, to know the statute law. as particu- larly applicable to the Army, a- well as Army regulations, the differ- ent manuals, orders, and circulars issued for the information and eminent of the Army. This reallj means that on grounds of public policy a person is responsible whether he knows the law or not. His ignorance is immaterial. An exception may .sometimes be made where enlisted men are charged with the knowledge of the Articles of War. This exception would be based primarily upon- the fact that A. AV. 110 makes i of the features of enlistments into the military service that certain of i lie "Articles of War shall be read to every enlisted man at the time of, or within six days after, his enlistment." A. TV. 109 enjoins that he shall take an enlistment oath in which, among other thing-. he -wears that he will observe and obey military orders "according to the rules and Articles of War."* While in the case of an old or who had been for a considerable period in the service and had had a sufficient opportunity to inform himself as to tic provisions of the code, a failure to have complied with the injunction of this article could scarcely constitute a defense, such EVIDENCE. 133 failure might perhaps have this effect, or should usually at least act as an extenuation in the case of a recruit, especially one imperfectly acquainted with the English language. In such a case it would cer- tainly be admissible for the accused to show the fact, and if the offense charged was one of the criminality of which he could not, in his ignorance of military law, have been aware, or the gravity of which ho could not have appreciated, the omission of the reading of the articles upon his enlistment would properly be regarded by the court, if not as a defense, certainly as a palliation of his misconduct. (Winthrop, p. 438.) 283. Ignorance of fact. — It is generally laid down that ignorance of fact excuses crime. But this must be an honest or innocent ignor- ance and not an ignorance which is the result of carelessness or fault. The theory, of course, is that where a bona fide ignorance of fact exists there would be an absence of the requisite wrongful intent. The general rule applies equally to military cases, and the ignorance, to constitute a defense therein, must appear not to have proceeded from any want of vigilance, or from failure to make the inquiries or obtain the information reasonably called for by the obligations and usages of the service. Thus a soldier who neglects to report for guard or other duty because ignorant of the fact that he has been duly detailed therefor is not guilty of a breach of A. W. 61 unless his ignorance is a result of his own neglect or wrongdoing (Win- throp, p. 436) ; and if the soldier should disobey an order given to him by an officer in civilian clothing without the officer having first stated to the soldier that he was an officer, where the soldier did not know that he was an officer nor have reason to believe that he was an officer, then his ignorance would be excuse for his act of diso- bedience which might otherwise have been a very serious offense. Of course, a soldier is presumed — it is his duty — to know the officers of his command where reasonable time and opportunity after joining the command are shown to have existed for this purpose. [Note. — See Insanity of accused, par. 219.] 284. Evidence of desertion. — Absence without leave is usually proved by the evidence of an officer or noncommissioned officer of the com- pany of the accused to the effect that he was absent from his organi- zation without authority for a certain period, but if such witn< are not available it may be proved by the entries on the muster toils. [n making the hitter kind of proof, that portion of the muster roll relating to the accused, or a copy of it certified by the officer having official custody thereof, showing the accused was absent without leave, beginning a certain date, and (if such is the case) was dropped as a deserter, should be attached to the proceedings as an exhibit. But the muster roll, even though it refers t-> the accused as a - de- serter," is not complete evidence of desertion; it is evidence only of 134 MANUAL FOR COURTS-MARTIAL. ■bsence without leave, and it is still necessary for the judge advocate to prove an intent be remain permanently absent; that is. to desert. The eondhion of absence without leave having once been shown to will be presumed to continue in the absence of evidence to the contrary until the ; oe again under military control. It is to prove only that the accused went abeenl with out leave a certain date and came under military control a certain date. During the intermediate time it is presumed he was absent without leave. II* th«' condition of absence without, leave is much prolonged, and there is no otismctory explanation of it, the court may be justi in presuming from that alone an intent to remain permanently ab- sent. The presumption of suoh intent will b gthened by such circumstances as that the accused attempted to dispose of his uni- form or other property; that substantially all his clothes were miss- ing from his locker when his absence was discovered ; that his civilian clothes were missing; that he attempted to board a train that took him away from his station; that he purchased a ticket for a distant point or was arrested or surrendered at a considerable distance from his station; that while absent he was in the neighborhood of military posts and did not surrender to the military authorities; that he was dissatisfied in his company or with the military service; that he had made remarks indicating an intention to desert the service; that he v. as under charges or had escaped from confinement at the time he absented himself; that just previous to absenting himself he stole or took without authority money, civilian clothes, or other property that would assist him in getting away. etc. On the other hand, such incidents are not always inconsistent with a guilt of mere absence without leave. They should be carefully weighed by the court. Previous excellent and long service, the fact that none of the property of the accused was missing from his locker, and the fact that he was under the influence of intoxicating liquor or drugs when 1m- absented himself, and that he continued for some time under their influence, etc., are incidents geing to show there was not an intent to remain permanently absent. The fact that .1 reward has been paid for the apprehension of the accused as b deserter neither proves nor disproves an intent to desert. So idso the opinions of witnesses as to whether the accused intended to desert and. statements from them that the accused is a " deserter " or "deserted" are not only incompetent, but are valueless for any purpose (o prove desertion. (a) Statutory rules < . — A. YV. 28 provides that it shall be sufficient proof of the offense of desertion by an officer that, having tendered his resignation and prior to due notice of the acceptance of the same, he quits his post or proper duties without leave and with intent to absent himself permanently therefrom. And similarly in EVIDENCE. 135 the case of a soldier, A. W. "20 provides that it shall be sufficient proof of desertion in his case when it is proved that, without having first received a regular discharge, he again enlists in the Army or in the militia when in the service of the United States, or in the Navy or Marine Corps of the United Sfcato S, or in any foreign army; and shall be further proof of fraudulent enlistment where the enlistment is in one of the forces of the United States mentioned above. 285. Drunkenness as showing- absence of intent. — It is a general rule of law that voluntary drunkenness is oot an excuse for crime- com- mitted in that condition. But the question whether or not the ac- cused was drunk at the time of the commission of the criminal act may be material as going to indicate what species or kind of offense was actually committed. Thus, there are crimes which can be con- summated only where a peculiar and distinctive intent or a conscious deliberation or premeditation has concurred with the act which could not well be possessed or entertained by an intoxicated person. In such cases evidence of the drunken condition of the party at the time of the commission of the alleged crime is held admissible, not to excuse or extenuate the act as such, but to aid in determining whether, in view of the state of his mind, such act amounted to the specific crime charged or which of two or more crimes similar but distin- guished in degree it really was in law. Thus, in cases of such offenses as larceny, robbery, burglary, and passing counterfeit money, which require for their commission a certain specific intent, evidence of drunkenness is admissible as indicating whether the offender was capable of entertaining this intent or whether his act was anything more than a mere battery, trespass, or mistake. So, upon an indict- ment for murder, testimony as to the drunkenness of the accused at the time of the killing may ordinarily be admitted as indicating a mental excitement, confusion, or unconsciousness incompatible under the circumstances of the case with premeditation or a deliberate in- tent to take life and as reducing the crime to the grade of man- slaughter. On the other hand, where, to constitute the legal crime, there is required no peculiar intent — no wrongful intent other than that inferable from the act itself— as in cases of assault and battery, rape, or arson, evidence that the offender was intoxicated would, strictly, not be admissible in defense. (Winthrop, p. 440.) Where drunkenness is pleaded as an excuse for crime Buch excuse should be received with caution. Drunkenness is easily simulated. It is sometimes resorted to for the purpose of stimulating the oi to the point of committing the act. Where premutation and intent first exist, followed by voluntary drunkenness and the oommif of the crime during such state of dmnkannesB, the accessary u to commit the crime will be presumed, whatever the state of drunk enness at the time of its commission may have been. 136 MANUAL FOR COURTS- MARTIAL. 286. Drunkenness in military cases. — In military cases, the fact of the drunkenness of the accused, as indicating his state of mind at the time of the alleged offense, whether it may be considered as properly affecting the issue to be tried, or only the measure of punishment to be adjudged in the event of conviction, is in practice always admitted in evidence. And where a deliberate purpose or specific intent is necessary to constitute the offense, as in cases of dis- obedience of orders in violation of A. W. 64, desertion, mutiny, cowardice, or fraud in violation of A. W. 94, the drunkenness, if ilearly shown in evidence to have been such as to have incapacitated the party from entertaining such purpose or intent, will ordinarily be treated as constituting a legal defense to the specific act charged. In such cases, however, if the drunken act has involved a disorder or neglect of duty prejudicial to good order and military discipline the accused may be convicted of that offense under A. W. 9G. (Win throp, p. 411.) 287. Proof of drunkenness. — Upon a trial for drunkenness it is not essential to confine the testimony to a description of the conduct and demeanor of the accused, but it is admissible to ask a witness directly if the accused " was drunk," or for a witness to state that the accused " was drunk," on the occasion or under the circumstances charged. Such a statement is not viewed by the authorities as of the class of expressions of opinion which are properly ruled out on objection unless given by experts, but as a mere statement of a matter of observation, palpable to persons in general, and so, proper to be given by any witness as a fact in his knowledge. It is preferable that all witnesses introduced to prove drunkenness should describe the conduct and demeanor of the accused in addition to giving their opinion as to whether tlie accused ivas drunk. 288. Reasonable doubt and burden of proof. — In order to convict, the court must be satisfied, beyond a reasonable doubt, that the accused is guilty as charged. By " reasonable doubt " is intended not fanciful or ingenius doubt or conjecture but substantial, honest, conscientious doubt suggested by the material evidence in the case. It is an honest, substantial mis- giving, generated by insufficiency of proof. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or jury and unwarranted by the testimony; nor is it a doubt born of a merci- ful inclination {<> permit the defendant to escape conviction, nor prompted by sympathy for him or those connected with him. The meaning of the rule is that the proof must be such as to exclude not every hypothesis or possibility of innocence but any fair and rational hyp. ept that of guilt; what is required being not an abso- lute or mathematical but a moral certainty. A court-martial which acquits because, upon the evidence, the accused may possibly be inno- EVIDENCE. 137 cent falls as far short of appreciating the proper amount of proof required in a criminal trial as does a court which convicts because the accused is probably guilty. (Winthrop, p. 47G.) In trials before courts-martial the prosecution has upon it the burden of proving the guilt of the accused beyond a reasonable doubt, and, whatever the defense of the accused may be, this burden never changes. After the evidence is all in the court must be convinced beyond a reasonable doubt of every element necessary to constitute the offense in order to justify it in convicting the accused of the offense charged. In collateral issues arising in the course of the trial as to the com- petency of witnesses, the admissibility of testimony, and the like, the burden of proof rests upon the party who alleges incompetency or objects to the admission of particular testimony. (Davis, p. 267.) Section IX. JUDICIAL NOTICE. 289. Judicial notice. — Courts will recognize the existence and truth of certain matters bearing upon the issue before them of their own motion and without requiring the production of evidence. Such acceptance is known as "taking judicial notice" of them. This is done as to all matters of law and all facts which are so notorious as to need no evidence. To the former class belong the laws which the court applies in the decision of the cases before it, including the Constitution, laws, and treaties of the United States, those of the State in which it sits, the common law, and the law of nations. They also take notice of the great seal of the United States, those of the several States, the seal of courts of record, notaries public, etc. Under the latter head they will take judicial notice of the ordinary divisions of time, of calendar and lunar months, of weeks and days, and of the hours of the day; of astronomical and physical facts; of the laws of nature, including their ordinary operations and consequences; of the Government of the United States and those of the several States and their heads; of war and peace; and of the great facts of history as recorded in the works of writers of st ard authority. So in addition all courts-martini will take jn notice of the organization of the Army, the statutes relating to the Army, the Army Regulations, the contents of the several man issued, the existence and situation of military departments tions, and posts, and the stations of troops as published to the A the fact that an officer belongs to 8 certain organization, i ©ral and special orders, general court-martial orders, and bull< of the War Department and the headquarte] reral military departments may ordinarily be proved by printed official copi 138 MANUAL FOR (/OrilTS-MAlITTAL. the usual form. A court-martial will in general properly I judicial notice of the printed order as genuine and correct. A court martial, however, should not in general accept in evidence, if obje i printed or written order which ! i ten made • the Army without esa and official char Bcter. Special and courts will take judicial notice of published ' and post commander. "Where the price of an article furnished by the Government is published to the Army in orders, bulletins, or price lists, it will not be necessary to e the price, as the court will take, judicial notice of it. It is proper, although not necessary, for the judge advocate to state to (ourt that the price as set out in the charges is the same as that fixed by the order, bulletin, or price list. If the court is uncertain as to the fact which it is called upon to notice judicially, it may refer to any person or to any document or book of reference to Iv itself with regard thereto, or it may refuse to take judicial notice of the fact unless and until the party calling upon it to do so (shall produce such, document or book of reference. CHAPTER XII. COURTS-MARTIAL— CONCLUDING INCIDENTS OF THE TRIAL. Section I: Statements and arguments: Pago. 290. Scope of statement 140 291. Freedom of expression 140 292. Admissions 140 293. Arguments 141 Section II: Findings: 294: Voting 141 29"). Majority necessary to convict — Exception 141 296. Reasonable doubt 141 297. General principles controlling findings 141 298. Guilty of a lesser included offense 142 299. Guilty with exceptions and substitutions 142 300. Substitution of general for specific article in the charge 143 301. Joint charges 143 302. Reasons for findings 143 303. Findings where no criminality is involved 143 304. Findings under charge of drunkenness 1 13 305. Recording of finding or sentence by reporter 144 Section III: Previous convictions : 306. Procedure as to previous convictions 144 307. Character of previous convictions 144 Section IV: Sentences: 308. Voting 145 309. Mandatory and discretionary punishments 145 310. Sentences for officers 1 16 311 . Sentences for soldiers 146 312. Dismissal 146 313. Loss of rank 146 314 . Suspension from rank 147 315. Suspension from command 147 316. Suspension from duty 147 317. lino 147 I eprimand 147 319. < 'onfinement to limits of post or reservation 147 320. Dishonorable discharge 143 uspension of dishonorable discharge 148 onfinement at hard labor 1 18 323. Hard labor without confinement 148 324. Forfeiture of pay and alio ancee 148 325. Courts can not stop ] c of Government or an individual 118 326. Forfeiture of deposits 1 19 139 140 MANUAL FOR COURTS-MARTIAL. I tV: Si snces • tontinued. Page. Reduction "f noncommissioned officer 149 Detention ot pay 149 :;l"j. when reward for apprehending deserter aol to be stopped MO 330. Sentences of general prisoners 149 331. Reasons for sentence 149 Recommendations to clemency 149 Report to commanding officer ol result of trial— when iuade__ 150 Section I. STATEMENTS AND ARGUMENTS. 290. Scope of statement. — After the introduction of evidence has been completed the accused, personally or by counsel, and whether or not he has testified as a witness, may make an unsworn verbal or written statement as to the case. If the statement is in writing it should be signed by the accused, or by counsel in his behalf, and appended to the record. The statement may consist of a brief summary or version of the evidence, with such explanation or allegation of motive, excuse, matter of extenuation, etc., as the party may desire to offer, or it may embrace, with the facts, a presentation also of- the law of the case and an argument both upon the facts and the law. (Winthrop, p. 450.) Such statement is not testimony and, therefore, is not subject to cross-examination, but as a personal defense or argument, how- ever, it may and properly should be taken into consideration by the court. (Digest, p. 506 V, H, 1.) 291. Freedom of expression. — A large freedom of expression in his Statement to the court is allowable to an accused, especially in his comments upon the evidence. So, an accused may be permitted to reflect within reasonable limits upon the apparent animus of his accuser or prosecutor, though a superior officer and of high rank. But an attack upon such a superior of a personal character and not apposite to the facts of the case is not legitimate; nor is language of marked disrespect employed toward the court. Matter of this de- scription may indeed be required by the court to be omitted by the ised as a condition to his continuing his address or filing it with the record. (Digest, p. 500, V, II, 3.) 292. Admissions. — While tin 1 statement proper ran not, as previously stated, be regarded as evidence, and the accused is not in general to bo hold bound by the argumentative declarations it contains, yet if he clearly and unequivocally admits in his statement certain facts material to the prosecution, such may properly be viewed by the court and reviewing authority in the case. Such facts must, of course, not I lent with the plea. But admissions of this sort can COURTS-MARTIAL — CONCLUDING INCIDENTS OF THE TRIAL, 141 scarcely in any event constitute a sufficient basis for a conviction un- less supported by material testimony on the trial. [Note. — See Chap. IX. par. l"">4. as to procedure where, aft< r a plea of guilty, the ace-used makes a statement Inconsistent with his plea.] 293. Arguments. — After the accused has made a statement, ii" any, arguments may be presented to the court by the judge advocate, the accused, and his counsel. The judge advocate has the right to make the opening and closing argument, but the court, in its discretion, may permit the defense to answer any new matter in the closing argument of the judge advocate. Section II. FINDINGS. 294. Voting. — After the statements and arguments, if any are made, have been concluded the court will proceed to its judgment which consists of the findings and sentence. Members of a general or spe- cial court-martial, in giving their votes, shall begin with the junior in rank. (A. W. 31.) The votes of the members must bo based upon and governed by the testimony in the case considered in connection with the plea. The charges and specifications are voted upon in the same order that is followed in arraigning the accused, the first speci- fication to the first charge being voted upon, then the second, third, and thereafter in order, followed by a vote upon the charge itself; and so on with the other charges. A tie vote on a finding is a finding of not guilty. [Note. — For refusal t<> vote a member Ls chargeable under A. W. 00, see VII, par. 00.] 295. Majority necessary to convict — Exception. — All convictions, whether by general or special court-martial, may he determined by a majority of the members present, except that no person shall by general court-martial be convicted of an offense for which the death penalty is made mandatory by law, unless by the concurrence of two- thirds of the members of said court-martial. Where the death pen- alty is not mandatory but is discretionary a conviction may be deter- mined by a majority vote, but two-thirds of the members must concur in the death penalty before it can be imposed. (A.W.43.) (0. M. C.M.,No.&.) 296. Reasonable doubt.— Whore issues arise during ; trial, as for instance as to the competency of members or witn and evidence is taken, the question at issue is determined by pre- ponderence of evidence; but in order to convict of the charge- and specifications or any part of them the court must be satisfied of the guilt of t : a reas liable doubt. [Note.— For description of reasonable d< ap. XT. par. 288 I 297. General principles controlling findings.— The on the charge should be supported by the finding on the specification (or specifications), and the two finding- should be co with each 112 MANUAL FOR COURTS-MARTIAL. other. A finding of guilty on the charge would be quite inconsistent with a finding of not guilty on the specification. So a finding of guilty on a well-pleaded specification apposite to the charge, followed by a finding oi not guilty either of the article charged or of some other proper article, would he an incongruous verdict, Xo matter how many specifications there may be, it requires a iinding of guilty on but one specification (apposite to the charge) to support a similar Iinding upon the charge. (Digest, p. 536, XII, A. 2) Evidence can not be taken a iter :i Iinding has been reached. 298. Guilty of a lesser included offense. — If the evidence proves the commission of an offense which is included in that with which the accused is charged the court may except words of the specification, and if necessary substitute others instead, pronounce the inno. and guilt of the excepted and substituted words, respectively, and then find the accused either guilty of the charge or not guilty of the charge, but guilty of a violation of another proper article of war as the finding on the specification may require. Of this form of verdict the most familiar is the finding of guilty of absence without leave under a charge of desertion. In such a case the court should find as follows where the charges are in the usual form : Of the specification, guilty except the words "desert" and "in desertion " substituting therefor respectively the words " absent him- self without leave from " and " without leave," of the excepted words not guilty, of the substituted words guilty. Of the charge, not guilty but guilty of violation of the sixty-first article of war. [Note. — For a discussion <>!' the incidental power of appointing and confirm- iiii,' authorities t<> approve and confirm a tinding of guilty of a lesser included offense see Chap. XVI, pars. 877 and 379.] 295. Guilty with exceptions and substitutions. — It is a peculiarity of the finding at military law that a court-martial, where of opinion that any portion of the allegations in a specification is not proved, is authorized to find the accused guilty of a part of a specification only, excepting the remainder; or, in finding him guilty of the whole (or any part), to substitute correct words or allegations in the place of such as are shown by the evidence to be incorrect. And provided the exceptions or substitutions leave the specification still appropriate to the charge and legally sufficient thereunder, the court may then prop- erly find the a< cused guilty of the charge in the usual manner. Fa- miliar instances of the exercise of the authority to except and sub- stitute in a finding of guilty occur in cases where, in the specihVa t ion, the name or rank of the accused or some other person is errone- ously designated, or there is an erroneous averment of time or place, or a mistaken date, or an incorrect statement as to amount, quantity, COURTS-MARTIAL CONCLUDING INCIDENTS OF THE TRIAL. 143 quality, or other particular, of funds or other property. But the authority to iind guilty of a lesser included offense, or otherwise to make exceptions and substitutions in the findings, does not justify the conviction of the accused of an offense entirely separate and distinct in its nature from that charged, thus "selling" and "through neg- lect losing" property are separate offenses though each is a violation of A. W. 84. 300. Substitution of general for specific article in the charge. — Another legal and now common form of finding is where an accused is charged with an offense, made punishable by an article of war other than the ninety-sixth (as for instance the ninety-fifth article), and the court is of the opinion that, w T hile the material allegations in the specifi- cation are proved, they do not fully sustain the charge as laid, but do clearly constitute a violation of the ninety-sixth article of war. In this case the accused may properly be found guilty of the speci- fication and not guilty of the charge, but guilty of " violation of the ninety-sixth article of war." It should be remembered, however, that the court can not in its findings legally substitute the ninety-sixth article of war for any other, unless the proof fails to substantiate the specification under the original charge. 301. Joint charges. — Where joint charges are tried, if one or more of the accused persons is acquitted and one or more is convicted, the findings should by proper exceptions eliminate the words showing that the acquitted person or persons was a joint participant in the offense, and should expressly acquit those persons whom it finds not guilty. 302. Reasons for findings. — A court-martial may spread upon the record of trial a brief statement of reasons upon which its findings are based. In many cases such a statement will aid the reviewing authority in determining the action to be taken by him. 303. Findings where no criminality is involved. — A finding of " guilty without criminality " is not consistent and should not be made. If the accused is found to have committed the act and done the things alleged in the specification, but without the guilty intent or knowl- edge essential to constitute the offense, the court should, as to the specification, find the accused "not guilty." 304. Fiidings under ckarge of drunkenness. — A person " under the in- fluence of intoxicating liquor " or " intoxicated " is " drunk." There- fore, under the eighty-fifth article of war. in charging that the accused was found " drunk" the word " drunk " will be used. So in charging other offenses involving drunkenness no other word or phrase will be used as a substitute for " drunk.'' Under such charges the court should not in its findings substitute such phrases a.s " undo. the influence of intoxicating liquor " and " intoxicated " for " drunk. 144 MANTJAIi FOR COUKTs-MAKTIAL. 305. Recording of finding or sentence by reporter.— A court-martial, member of court, or judge advocate can not, of course, lawfully com- municate to a reporter or clerk, by allowing him to record the same or < therwise, the finding or sentence of the court. Bui the fad that the finding or sentence or both may have been made known to a re- porter or clerk can not affect the legality of its proceedings or sentence. (Digest, p. 558, XIV, E, 7. g.) Section III. PREVIOUS CONVICTIONS. 306. Procedure as to previous convictions. — Courts-martial will, in the ■■. after a. finding of guilty, be opened for the -purpose of ascertaining whether evidence of previous convictions ha.- been referred to the court by the appointing authority, and, if so. of re- ceiving it. The introduction and u lence of previous convic- tions will he limited to that pertaining to convictions by courts- mart!:.! of an offense or offenses committed by the accused during the curr< tnent and within one year next preceding the commis- of any of the offenses of which he stands convicted before the . These convictions may be proved only by the records of previous trials and convictions, or by duly authenticated copies of such records, or by duly authenticated copies of orders promulgating such trials and convictions, or by a duly authenticated copy of the record of pro ; 'ctions as shown by the service record of the su< h records and orders promulgating such trials and convictions are duly authenticated when impressed with the ,, of the bureau, office, or headquarters having custody of the original, or when certified as a true copy by an officer having custody ds. The record of previous convictions, as shown by »rd, is duly authenticated when certified as a true copy by \\.^ officer having custody of such service record. In a trial by court-martial, when the proof is the copy of the record or of the order promulgating the sentence furnished to the regimental her commander, it will be returned to him, and a certified copy will be attached to the record of trial. When the proof is a copy of the record of previous convictions, as .shown by the service record, will be attached to the record of trial. The evidence of previous convictions referred to a special or summary court will, after trial, be returned to the appointing authority and will, after mi by the latter on the case, be returned to the command to which it pertains. (/'. M. C M., Noa, I and 40 307. Character of previous convictions.— l>y "previous conviction" is meanl a previous conviction by a court-martial where the sen has been approved by competent authority. A previous conviction l.». b ci\ il or naval court, an acquittal, or an approved conviction by a : martial that hash. ide as illegal is not a wi previous con- Lon" as the phrase is used here. Previous convictions are not COURTS-MARTIAL — CONCLUDING INCIDENTS OF THE TRIAL. 145 limited to those for offenses similar to the one for which the accused is on trial. The object is to sen- if the accused is an old offender and therefore less entitled to leniency than if on trial Cor his first off This information might not be fully obtained if evidence of pre- vious convictions of similar offenses only were laid before the court. The consideration of previous convictions has no bearing upon the question of guilt of the particular charge on trial, but only upon the amount and kind of punishment to be awarded. They are not con- sidered until after the findings have been reached. Section IV. SENTENCES. 308. Voting.— After the findings have been determined upon and resulted in a conviction noon the charge, or some one at least of the charges when there are several, or in a conviction of a lesser offense included in the one charged:, and. in the case of a soldier, the evidence of previous convictions, if any. have been introduced, the coma pro- ceeds to adjudge the sentence. In voting, the thirty-first article of war requires that the junior in rank .-hall vote first, and the vote therefore taken in the inverse order of rank. Those members desir- ing to propose a sentence usually write it on a slip of paper and I. it to the president. The president reads the proposed >entences to the court and the members vote on them in order, beginning with the lightest, until a majority present, unless the sentence proposes the death penalty, agree upon a sentence. When a sentence of death is osed two-thirds of the members must agree noon the sentence. before it can be adopted regardless of whether the death penalty is mandatory or merely discretionary in the case on. trial. Even in a where the puni fixed, as, for instance hty- rticle, where the punishment for lurking or acting ninety-fifth article, where the punishment J, the members rote impose this punishment. All (1... meml court, those who voted for an acquital equally witli those who voted for conviction, should vote iov some sentence. (A. W. 13.) {V. M. G. M.,No.2.) 309. Mandatory and discretionary punishments. — Punishment, under the Articles of War, is either mandatory, that is, a certain punish- I re cribed by the terms of the article, or is discretionary, i b is, i : Left to the discretion of the court-martial. If the punisl prescribed in the article violated, any other punish- ment than that pi .scribed is illegal. For instance the punishment imposed by a court for a violation of the ninety-fifth article of war mmt be dismissal, it can no! be less and it can no1 be more, thou conviction under other articles at the same trial might authorize the , -48 — n 146 MANUAL FOR OOOBTS-MABXIAL. inclusion of other forms of punishment in the sentence. Before pro- nouncing sentence, the court should, therefore, examine the article violated to see what punishment may be legally awarded. As to discretionary punishments the President, by virtue of an act of Congress, lias by executive order prescribed maximum limit punishment for certain offenses when committed by soldiers. The ; order is found in Chapter XIII. par. 349. If the punish- ment is discretionary the court, before proceeding to award a punish- :. will ascertain whether a limit is fixed in the order, and if no limit is fixed the court may impose any punishment that is sanc- tioned by the custom of the service. [Note.- See mandatory and discretionary punishment, Chap. IV, Sec. II, K).] 310. Sentences for officers. — For officers the legal sentences by court- martial, depending on the nature of the offense, include death, dis- missal with confinement at hard labor, dismissal, loss of rank, sus- pension from rank, command, or duty, with or without loss of pay or part of pay, fine or forfeiture of pay, confinement to limits of post or reservation, reprimand, and admonition. [Note.— Immediately npon the promulgation of any sentence oil court-martial in the caa lissioned officer Involving suspension from rank and com- mand, confinement, reduction in lineal rank, or any other material change in officer's status, the commander who aas authority to approve such sentence and carry it into execution will advise The Adjutanl General of the Army, by telegraph, of the sentence imposed as approved or mitigated and the , War Dept, 1910.)] 311. Sentences for soldiers. — For soldiers, the legal sentences, de- pending on the nature, of the offense and the jurisdiction of the court, include death, dishonorable discharge, confinement at hard Labor, hard labor without confinement, forfeiture of pay. detention of pay. and reprimand; for noncommissioned officers, reduction to the ranks; for privates, first class, reduction to second-class privates and privates; for cooks of the Quartermaster Corps (where sentence is imposed by a genera] court-martial), reduction to the ranks: and for those hold- certificate of eligibility to promotion, deprivation of all rights and privileges arising from such a certificate. That portion of pay !i is required to be allotted to dependenl relatives of class A. under the provisions of Article II of the Avar risk insurance act of October 6, 1917, is not subject to he forfeited by sentence of courts- martial. Similarly, the Comptroller of the Treasury has held that (") that portion of pay voluntarily allotted for the support of de- pendent relati lass B under said war insurance act; (h) (hat portion of pay allotted for the payment of insurance premiums under said act; and (c) that portion allotted for the purchase of liberty loan bonds are not disturbed or affected by a sentence of court- martial imposing a forfeiture of pay. (24 Coin]). Dec., 621.) A sen- tence imposing forfeiture of a pari of pay means the forfeiture of the specified part of that portion of tin- pay which is not so allotted. [Note.— 1. Confinement without hard labor sin. aid never be Imposed. 2. For forms of sentences, gee Appendix D.J (('. .1/. ('. .1/., N08. j and //.) COURTS-MARTIAL 0ONOL.UBING lNi CEDENTS OF THE TRIAL. 147 312. Dismissal. — Under the article of war which pr< trace oJ dismissal upon conviction, no punishment in addition to dismissal is authorized. Therefore no punishment in addition i<> dis- missal can legally be imposed upon com iction of an offense under the ninety-fifth article of war alone. For statement by whom a sentence of dismissal or dishonorable dis- charge Imposed by National Guard courts-martial, not in the service of the ■ i Suites, must ii" approved, see sec. i<>7, act of June :>. 1916; .".'.i Stat. Appendix 2, post.] 313. Loss of rank. — Loss of tank is accomplished by ;i sentence direct- ing that an accused be placed at the foot of the list of officers of his £t -a de and arm. or that he remain at the foot of such list until he shall have test a certain number of fifes, or for a certain Length of time, or that he lose a certain number of files, or that his name shall appeal- in the lineal list of officers of his arm next below that of a certain r named. 314. Suspension from rank. — Suspension from rank includes suspen- from command. It deprives an officer of the right to promotion \acaney in a higher grade occurring pending the term of sion and which he would have been entitled to receive by virtue uiority had he n<>t been suspended. It does not, however, de- prive tin officer of the right to rise in files in his grade. Suspension from rank also make- an officer ineligible to sit upon a court-martial, court of inquiry, or military board, and deprives him of privileges that depend on rank, such as the selection of quarti 315. Suspension from command. — This punishment merely deprives deer of authority to exercise his proper military command and, [uently, of his right' to give orders to or exact obedience from his juniors or perform any other duties that go with the exercise of command. It does not affect his right of promotion or any military rights or privileges other than those attaching to command. It is therefore not an appropriate punishment for a stall' officer. 316. Suspension from duty. — Suspension from duty i> practically equivalent to a sentence of suspension from command. It is appro- priate in the case of an officer holding a position involving the per- form tive duty, as distinguished from actual mili- tary command, as in the ease of officers of the - 317. Fine. — A fine is distinguished from a forfeiture in that it is a punishment which imposes a pecuniary liability in general, not n< sarily affecting pay. It is especially recognized as a form of punish- ment in the ninety-fourth article of war. It is usually ttied in the Bentence by a provision, in order to enforce collection, thai >D lined -hall be imprisoned until th( | aid or until a ; portion of time considered as an equivalent punishment has expired. Fines as well as forfeitures accrue to the United State- and can not be imposed or collected for the benefit of any individual. 148 MANUAL FOR COURTS-M AKTIA L. 318. Reprimand. — This sentence is usually awarded to officers only and for minor offenses where b mild penalty is to be inflicted. In il it is not appropriate for enlisted men, but is authorized in the i <>f noncommissioned officers. The proper authority to admin- the reprimand is the iv- iewing authority, and he may vary it in severity or mildness, according to his views of the case. 319. Confinement to limits of post or reservation. — This form of pun- Lent is rather a deprivation of a privilege than confinement. Where it is imposed on an officer on duty with troops it is customary to so qualify it as to enable him to take part in maneuvers, practice marches, and perform other duties connected with his command. 320. Dishonorable discharge. — A dishonorable discharge can he im- posed only pursuant to a sentence of a general court-martiaL The discharge should he dated as of the day on which the order promul- gating such approval is received at the post where the soldier is held. ttence adjudging a dishonorable discharge to take effect at such period during a term of confinement, as may he designated by the reviewing authority i.- illegal. 321. Suspension of dishonorable discharge. — Members of a court-mar- tial may properly recommend, in a communication made separately hut forwarded to the reviewing authority with the record, that sen- tence of dishonorable discharge be suspended. (See par. 332.) 322. Confinement at hard labor. — In the case of officers this punish- ment is imposed only in connection with a sentence of dismissal. Where "hard labor" is intended, it should be stated in the sentence, but the omission of these words will not prevent such punishment be- required where it is authorized in the maximum-punishment order. (Sec. A. AY. 37.) OTE>-Chap. XVI, Sec. I. park 396-398, stale the rules as to whether a post, the United States Disciplinary Barracks or one of its branches, or a peniten- tiary shall ed as the place of confinement.] 323. Hard labor without confinement. — This punishment is regulated by the provisions of the Executive order fixing the maximum limits of punishment. Chapter XT1T, Section \I. par. 310. 324. Forfeiture of pay and allowances. — Pay and allowances can not be forfeited in a sentence by implication. If the court intends to forfeit pay or pay and. allowances, the penalty of forfeiture should be adjudged in terms in the sentence. No other punishment imposable by court-martial — not even a sentence of death, dismissal, suspension, dishonorable discharge, or imprisonment— involves of itself a forfeiture or deprivation of any part of the pay or allow- - due the party at the time of the approval or taking effect of the sentence. It is not customary to provide in sentences for a for- feiture of allowances unless the sentence also imposes a dishonorable discharge and forfeiture of pay. A sentence of forfeiture of a cer- tain number of days" pay, or two-thirds of a soldier's pa} 7 for a COTJBTS-MABTIAL — CONCLTJDIN< ; [NOIDENTS OP THE TBIAL. 149 : ii period does not Forfeit extra-duty pay. (Digest, p. 544, XII, B,3,e (1) : Bui 18, War Dept, L915, pp. 8,9.) 325. Courts can not stop pay in favor of Government or an individual. — A court-martial can direct a forfeiture only in favor of the United States, and can not assign the pay of a soldier to any other person; nor can a soldier be required to receipt for money paid without hi i nt. A sentence can not appropriate, or stop pay for the reim- bursement or benefit of the Government or a Government agency, such as a company fund, post fund, hospital fund, nor of an m- civil or military, however justly the same may be due him, either for money borrowed, stolen, or embezzled by the accused or to satisfy any other pecuniary liability of the accused, whether in the nature oi debt or damages. The "stoppage" of pay to reim- burse the Government or a Government agency on account of losses for which officers and enlisted men are responsible is purely an ad- ministrative matter with which courts-martial have nothing to do. Sentences providing that a soldier shall be dishonorably discharj forfeiting all pay and allowances due or to becom. scept suck amounts as may ho due the post exchange, Fort , and the company fund. Company , Infantry," in no way hasten or facilitate the settlement of the debts duo the exchange or company fund. Such matters in. a sentence, are mere surplusage. 32G. Forfeiture of deposits. — Deposits of soldiers and interest thereon arc : ton, but the forfeiture can not be imposed lurt-martial. They arc exempt from liability, to • a sentence of a court-martial imposing forfeiture of pa allowances. A sentence that a soldier shall deposit a certain part of hi- pay is illegal. (Digest, p. 5 IT. XII, B, 4. c.) 327. Reduction of noncommissioned officer. — This punishment i the provisions of the Executive order fixing maximum limits of punishment, Chapter X11L Section VI. par. 340. 328. Detention of pay. — This punishment was reviv< I by tin tive order of Septa I I. fixing the maximum limits of pun- ishment, and is regulated by the provisions of the Executive order \ ; ! - (ction VI,] 329. When reward for apprehending deserter not to be stopped. — If a soldier he brought to trial under a charge of desertion and acquitted, evicted i I hout leave only, any amount paid as a ird for his I ill not he stopped against his pay, and a oviding for such a stoppage is not authorized. 330. Sentences of general prisoners. — Courts-martial in imposi] i . upon general pri om rs are restricted I • '<■■■ iposing additional confinement at hard labor to ! i upon the completion or termi- nation of their existing • and will not interfere with the manner of executing such sentences by prescribing loss of aood- 150 MAX I Al. i;l>-.MAi;TIAL. Conduct time, solitary confinement, or confinement on bread-and- water diet, leaving all such punishments to lie imposed by tin- com-' manding officer as the ordinary means of enforcing discipline. 331. Reasons for sentence. — A court-martial may spread upon tin" :.| of trial a brief statement of reasons upon which its sent* is based. In many rases such a statement will aid the reviei authority in determining the action to be taken by him. 332. Recommendations to clemency. — When a court-martial, or any member thereof, desires to submit a recommendation to clemency, including a recommendation for the suspension of the whole or of any part of the sentence imposed by the court, such recommendation will be signed by each member of the court desiring to participate therein. The communication carrying the recommendation* will in- clude a statement in succinct, form of the reasons- upon' which the recommendation is based and will be appended to the record (See par. S57 {d).) 332a. Report to commanding officer of result of trial — When made.— When an enlisted man has been tried by a general court-martial and acquitted, or has been convicted and the sentence does not include dishonorable discharge or confinement, the judge advocate will at once notify the commanding officer in writing, direct, of the fact that the prisoner has not been sentenced to dishonorable discharge or confinement, whereupon the commanding officer will at once release the 'prisoner from confinement or arrest, provided he is not awaiting trial or result of trial under other charges. Since an acquittal or a conviction is not effective until acted upon by the proper reviewing authority (see par. 371) it follows that such release of the accused from confinement or arrest, pending action by the reviewing author- ity, docs not prevent the court, upon reconsideration of its sentence, from imposing a sentence involving imprisonment. Con the eidi.ted man so released shall not be ordered to duty outside of the jurisdiction of the reviewing authority until the case shall have been finally disposed of by proceedings in revision or otherwise. r. Ops, J. A. G., May. 1918, p. 29,-) (/'. J/. C. J/., Nob. 1 and .',.) CHAPTER XTTT. COURTS-MARTIAL— PUNISHMENTS. BectionI: Disciplinary power of command] pag* Authority for : I hi punishment N 153 Not limited :■ II: Confinement in a penitenl When authorized ited in a penitentiary Authority fox prnitentiary sentence to be cited ing punishments: ion 34 L. £ of prisoners 3-12. Adaptation of punishments I ishmenta 159 IV: Prohibited puni.-lnuents: ilations 160 B< • ath — Cowardice — Fraud: i toath penalty 160 oaaer y penalty 1C1 . VI: Maximum limits: : 161 Section I. DISCIPLINARY POWER OF COMMANDING OFFICER. 333. Authority for. — While courts-martial are the judicial machinery by law for the trial of military offenses, the I nizes i power of command, when wisely and justly • is a powerful agency for the maintenance of cipline. Courts-martial and the disciplinary powers of commanding fields in which, they mi 1 1 1 v dency, however, le .-'Mi. To invoke court-martial jurisdiction rather than to of command Ul matters to which it is • appl . is to ch<" ong insl i unnecessarily military functions, injure rather than maintain cipli ::i authority the use of which and increases t! for command. given to the exercise of such d rticle of war : ch regulal i< ns as thi which he may from time to time Iter, or ad command of any detachment, company, or hi: 151 152 MANUAL FOR COURTS-MARTIAL. may, for minor offenses not denied by the accused, impose dis- ciplinary punishments upon persons of his command without the intervention of a court-martial, unless the accused demands trial by court-martial. The disciplinary punishments authorized by this article may in- elude admonition, reprimand, withholding of privileges, extra fatigue, and restriction to certain specified limits, but shall not in- clude forfeiture of pay or confinement under guard. A person punished under authority of this article who deems his punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority, but may in the mean- time be required to undergo the punishment adjudged. The com- manding officer who imposes the punishment, his successor in com- mand, and superior authority shall have power to mitigate or remit any unexecuted portion of the punishment, The imposition and en- forcement of disciplinary punishment under authority of this article for any act or omission shall not be a bar to trial by court-martial for a crime or offense growing out of the same act or omission ; but the fact that a disciplinary punishment has been enforced may be shown by t\\e accused upon trial, and when so shown shall be con- sidered in determining the measure of punishment to be adjudged in the event of a finding of guilty." While commanding officers should always use their utmost influ- ence to prevent breaches of discipline and compose conditions likely to give rise to such breaches, they should also impose and enforce the disciplinary punishment authorized by the above article. This authority, involving the power, judgment, and discretion of the commander, can not be delegated to or in any manner participated in by others, but must be exercised by the commander upon his own judgment and in strict compliance with the article and the regula- tions prescribed by the President pursuant thereto. Accordingly, the commanding officer of a detachment, company, or higher com- mand will usually dispose of, and may award disciplinary punish- ment for, any offense committed by any enlisted man of his com- mand which would ordinarily be disposed of by summary court- martial, when the accused does not deny that he committed the offense and does not demand trial by court-martial before the com- nanding officer has made and announced his decision in the case. 334. Record of punishment. — For each punishment awarded, the lander will cause to be made in the service record of the accused a brief statement showing — I'iie offense, including d COURTS-MARTIAL PUNISHMENTS. 153 (b) Punishment, if any. with date on which awarded. (c) Decision of higher authority, if appeal is made. (CM. C M.,No.4-) 335. Appeals. — If an appeal is made to the next superior authority it shall be in writing through the immediate commander awarding the punishment or his successor, wdio will immediately forward it to the superior with a copy of the record. An appeal shall consist of a brief statement signed by the accused, giving his reasons for regard- ing the punishment as unjust or disproportionate, and shall be ac- companied by a like brief statement by the commander in support of the punishment awarded. The superior will, in passing upon the ap- peal, hear no witnesses and will consider no statements other than those forwarded with the appeal, but will be limited strictly to the consideration of the punishment awarded. He will be reluctant to disturb the award of punishment, but when justice clearly requires such action he may modify, set aside, or even increase the punish- ment awarded, but in no case will he award a different kind of pun- ishment. After having considered the appeal he will return the record to the commanding officer from whom received, with a state- ment of his disposition of the case. 336. Not limited to soldiers. — The power is not limited in its applica- tion, either in law or principle, to enlisted men, but may with pro- priety be applied as well to commissioned officers, especially those of junior grades. Obviously in the case of officers the occasion for such action will be less frequent, the variety of punishment available more restricted, and the selection of the most effectual punishment more perplexing, but when the best interests of discipline require such action it shall be taken with firmness and in no wise restrained by an unwarranted regard for the commissioned grade of the offender. If the accused demands a court-martial, steps will promptly be taken to bring him to trial and notation of the demand will appear upon the charges. Section II. CONFINEMENT IN A PENITENTIARY. 337. When authorized. — The forty-second article of war follows the rules of the Federal Penal Code and practice respecting the impo- sition of penitentiary confinement in so far as they can be applied to court-martial procedure. Under the Federal Penal Code any offense is a felony which is punishable under the code or other statute of the United States by confinement in excess of one year. Buib 15-i MANUAL FOE COURTS-MARTIAL. no person may be confined h, / uuless the punishment ■ '!>/ adjudged Ear an offense of which be bas been convicted ne year. Under civil procedure it is not permissible to join in a single Indictment and trial offenses of a different nature t practice, also, confinement is never ordered to be ited in a penitentiary unless among the offenses upon which the sentence ; .- awarded is found a felony; that is to .say. an offense of it civil nal rately punishable by confinement to exceed one The pi.. ilt is that no person is confined in a peni- tentiary wdes8 both of the following conditions subsist: (1) The confinement that could lawfully be awarded as punish- ment of some one of the offenses of which he stands convicted (if that conviction stood alone) would exceed one year. The confinement actually adjudged exceeds one year. The ninety-third and ninety-sixth articles of Avar now confer upon courts-martial jurisdiction to try all crimes and offenses, not capital, of which persons subject to military law may be guilty. Under the military practice, dissimilar offenses may be joined in the same set- of charges; convictions may be had on one set of charges joining crimes of a civil nature with purely military offenses, and a single sentence may be adjudged on all the convictions. Also, there are certain purely military offenses which are by statute made punish- able by confinement in a penitentiary, -regardless of the term of con- finement imposed. Notwithstanding these departures from the prac- tice of Federal courts, the jurisdiction granted to courts-martial to punish offenses of a civil nature ought not to be exercised with greater harshness than is practiced under the criminal jurisdiction of United States courts, and the analogies with the penal rules of those courts ought carefully to be maintained. The forty-second article of war and the following rules of practice which result from that article preserve these analogies as far as they can be preserved under court-martial procedure. 338. Classes of sentences to be executed in a penitentiary. — Sentences of the following classes may be executed in a penitentiary : Class 1 : Commutation of death sentence. Any confinement, whether more or less than a year, awarded by way of commutation of a death sentence, may be executed in a penitentiary; and this is true whether the offense for which the sentence of death was awarded waa of a military or of a civil nature, and whether the sentence was awarded on conviction of a capita] charge alone or on conviction on a capital charge coupled \\ itl> conviction on other charges not cai Class 2 : Military offenses. A sentence of confinement awarded upon conviction of one or more of the military offenses enumer in this class may he executed in a penitentiary, regardless of the COURTS-MARTIAL PUNISHMENTS. 155 length of the sentence imposed, but, in practice, a penitentiary sL not be designated unless the confinement adjudged exceeds one year. However, if a conviction is had on several offenses, either nailitaa civil in nature, one of which is included in this class, and the tence adjudged on all the convictions together exceeds one year, the confinement may lie executed in a penitentiary. The military of- fenses comprised in this class are: (a) Desertion in time of war. (b) Repeated desertion in time of peace. (c) Mutiny. Class 3: Offenses of a civil nature. A sentence * one i confinement, awarded, either on conviction of any one or more of the several offenses of a civil nature described below, or on con- viction of any one or more of the several offenses of a civil nature described below, coupled with a conviction or convictions of one or more military offenses, may be executed in a penitentiary, if any one of the several offenses of a civil nature standing alone would be punishable by confinement exceeding one year by the limits of pun- ishment order, or, if not covered by said order, then by the law denouncing the offense, or by any other Federal statute. The civil offenses contemplated in class 3 are : (a) An act or omission specified and denounced as an offense in the Penal Code of the United States. (b) An act or omission specified and denounced as an offense in any other statute of the United States. This heading has reference particularly to penal provisions not properly separable from the ad- ministrative laws of the several branches and departments of gov- ernment, and not included in the Penal Code. Such offen-es will rarely be encountered in court-martial practice. (c) An act or omission recognized as an offense at the common law as the same exists in the District of Columbia, wherever com- mitted or omitted. The offenses under this head that may be en- countered in court-martial practice include the offense of sodomy. (CM.CM.NQ.Jk.) 339. Authority for penitentiary sentence to be cited. — In each case tried by general court-martial in which a penitentiary is designated as the place of confinement of the person tried, the record of trial, when for- warded to the Judge Advocate General of the Army, will be accom- panied by a signed statement indicating the lav or laws authorizing the confinement in a penitentiary of the person sentenced. In each case tried by general court-martial in which the confine- ment of the offender in a penitentiary is authorized by law, bi which a place other than a penitentiary is designated as the place of confinement, the record of trial, when forwarded to the Judge Advo- cate General of the Army, will be accompanied by a signed statement 15G M.\>.r\L rOB CQUBTS-MABTTAL. indicating the law authorizing the confinement in a penitentiary of the person sentenced and the reasons, briefly expressed, Eor desig- nating a place other than a penitentiary, instead of a penitentiary, as the place of confinement in the particular case. If the law relied upon as authorizing confinement in a peniten- tiary be a Federal statute an accurate citation will be regarded as sufficient to indicate the law. but if any other lli< y of the War Department respecting pun- ishment for desertion was announced in General Orders, No. 77. War rtment, June 10, 1911. Corrective confinement and forfeiture were i in cases of inexperienced soldiers who by surrender manifested a disposition to atone for their offenses. The number so punished and saved to the service has so increased each year that this policy has been enforced with fairly satisfactory results. In addi- tion a limited number of this class of offenders lias been restored to duty without trial under the provisions of A. R. 131. Since that order was issued important changes have been intro- duced in our military penology. Purely military oil' rving sentences in (he United States Disciplinary Barracks at Fort Leaven- worth and its branches may be restored to an honorable status and their enlistment. By the act of August 'l-l. L912 (37 Stat., . reenlistment of this class of offenders is authorized with the approval, in each case, of the Secretary of War; [Jnder 'he provisions ■ of April 27, 1914 (38 S I dishonorable discharge with a view to restoration to duty by remi thereof should the conduct of the offender warrant. There are now additi ms of saving men to the colors — men wh 5 are thou/ ts due to youth or inexperience or committed under .:id for tl have in them less of the ele- • of culpability. Supplementing these method- is tin- establish- ment of disciplinary organizations at the United State- Disciplinary icks where the offenders of this class who desire reenlistment or restoration may receive an intensive practical training to fit them for efficient service from the moment of rejoining, li i confidently be- lieved that in. • ! in this way will make better soldiers than those restored by tin- old methods, \ i/. without trial under A. !•!. L31 or with trial and a short period of corrective punishment. These old methods may he continued in the Limited number of where there are good grounds for belief that a soldier restored by such methods will creditably complete his enlistment period, but COURTS-MARTIAL PUNISHMENTS. 157 all doubtful cases should be sent before a court competent to adjudge dishonorable discharge and the longer periods of confinement, to the end that advantage may be taken of the more effective methods of reformation and training by hard labor and intensive practical military instruction now provided at the United States Disciplinary Barracks. These periods of confinement are graduated so as to prevent inequalities of punishment for like degrees of culpability and are sufficient, it is believed, to meet the ends of punishment where restoration to duty is not in contemplation. Where restoration is in contemplation, as in case of purely military offenders, including deserters, the period of confinement imposed is, under the new policy, in practical effect the maximum of an indeterminate sentence. In other words, the period for which the offender is held depends en- tirely upon himself. With good conduct and proper progress toward reform evidencing efficiencj in training and fitness to resume service relations the sentence of confinement terminates and the honorable stains of duty with the colors is resumed. While it is the effect of this policy to mitigate the condition of the peace deserter who desires to redeem his record and earn an honorable restoration to duty with the colors, it carries no substantial mitiga- tion as to other classes of deserters. Experience has not thus far demonstrated the wisdom of any change in the policy of severe punishment for this latter class. An engagement for military service has little in common with an ordinary private contract for personal service, and the fact that an individual may abandon such a con- tract with only minor consequences to himself furnishes no suggestion that a corresponding rule may be properly adopted in the Army. Nor does the fact that the early requirement of the common law that a call to civil office or civil employment under the Government could not be disregarded by the citizen, nor the obligations of such office or employment be laid down at his will, no longer obtains, furnish any suggestion. An engagement for military service creates a special .status, and many obligations flow from that status which are not obligations of the citizen in the civil service of the Government or under a private contracts for personal service. Other closely re- ■>\ considerations inherent in the nature of military service support this view. The Army is an emergent arm of the public service which the Nation holds ready for a time of great peril. Military service is an obligation which every citizen owes' the Government. It is settled law that such, service may be compelled, if necessary, by draft. Nor is the obligation? of the soldier who volunteers for a fixed period dif- ferent from that of the drafted soldier. By his ad of volunteering he consecrates himself to the military service. His engagement, sup- ported by an oath of allegiance, is thai the Nation may depend upon him for such service during the fixed period, whatever may be the 10S MANUAL FOB ( OUBT&-M \i:n u.. emergency. When this engagement ia breached a high obligation to Nation is disregarded, a solemn oath of allegiance is violated, and the Government is defrauded in the amount of its outlay incident to inducting the soldier into the military service, training, clothing, and caring for him while he remains in that sen ice, and transport ing him to the station from which he Desertion is thus seen to be, not simply a breach of contract for personal service, but a grave crime against the Government; in time of war perhaps the gravest that a soldier can commit, and at such times punishable with death. These facts furnish ample justification for a continuance of the poliey of severe punishment for the offense of desertion in time of peace, sub- ject only to the qualification that it should not be severe to the d\ of barring an honorable restorat ion to duly of the thoughtless, young, ox inexperienced offenders who desert and who, on return, manifest a de-ire to atone for their desertions and qualify themselves in character and training for such restoration by service in the dis- ciplinary battalions and companies now organized at the United States Disciplinary Barr 341. Segregation of prisoners. — It is the policy of the War Depart- ment to separate, ^<> far as practicable, general prisoners convicted of offenses punishable by penitentiary confinement from general pris- - convicted of purely military offenses or of misdemeanors in connection with purely military offense& In furtherance of this policy, reviewing authorities will designate a p the place id' confinement of general prisoners sentenced to he confined for more according to the rules laid down in Sec- tion II. v // form as a pwrmlmu ni must tend to degrade it.t<> the prejudice of the l. • terest of the service; such punishments, therefore, as impos- ing tours of guard duty <>r requiring ;i soldier to sound all calls' at the post for a certain period, arc forbidden. Solitary confinement on a bread and water dici and the placing of a prisoner in irons are regarded as means of enforcing prison discipline. They will not be imposed as a punishment by a court-martial. Si (i ion A'. DEATH— COWARDICE— FRAUD. 346. Death penalty. — No person shall, by general court-martial, be convicted of an offense for which the death penalty i^ made manda- tory by law. nor sentenced to sutler death, except by the concurrence of two-thirds of the members of said court-martial. Where the death penalty is uot mandatory but is discretionary a conviction may be mined by a majority vote, but two-third- of the members must concur in imposing the death sentence. Courts-martial have no power" to impose the death penalty, except for offenses expressly made punishable by death by the Articles of War. (A. W. 43.) A court-martial, in imposing the sentence of death, should not designate the i ime and place for its execut ion, such designation not being within its province, but pertaining to that of the reviewing or confirming authority. If it doe- so designate, this part of the sentence may be garded and a different time and place be fixed by the reviewing or confirming authority. (Digest, p. 10."), XCVI, B.) If the desig- ! day passes without execution, the same authority or his su- or may name another day. Death by hanging is considered more minious than death by shooting and is the usual method of execu- tion designated in the case of spies, of persons guilty of murder in connection with mutiny, or sometimes for desertion in the face of the : but in case. of a purely military offense, as sleeping on post, : snee when imposed is usually "to be -hot to death with musketry." Hanging is the proper method of executing a death sen- when imposed for violation of A. W. 92. For the sake of pie and to deter others from committing like offenses the death sentence may, when deemed advisable, be executed in the presence of the troops of the command. (A. W. 43.) (C. M. C. M.,No. 2.) 347. Cowardice — Fraud — Accessory penalty. — When an officer is dis- 1 from the service for cowardice or fraud, the crime, punish- t, name, and place of abode of the delinquent -hall be published in thi >ers in ami about the camp and in the State from which the offender came or where, he usually resides; and after such publi- n it shall be scandalous for an oflicer to associate with him. COL'BTS-MARTIAL PUNISHMENTS. 161 The terms "cowardice " and " fraud " as employed in this article refer mainly to the offenses made punishable by A. W. 75 and 94. With these, however, may be regarded as included all offenses in which fraud or cowardice is necessarily involved^ though the same be not expressed in terms in the charge or specification. (Digest, p. 166, C, A.) The publication throughout the United States in press dispatches of "the crime, punishment, name, and place of abode*' of the accused is a sufficient compliance with the article. (See Digest, p. 167, C,B.) Section VI. MAXIMUM LIMITS. 348. By whom prescribed — When applicable. — Whenever the punish- ment for a crime or offense made punishable by these articles is left to the discretion of the court-martial, the punishment shall not, in turn of peace, exceed such limit or limits as the President may from time to time prescribe. (A. W. 45.) The President has no authority to prescribe the maximum limits of punishment to be imposed for offenses committed in time of war. (C. M. C. M., No. 4-) 349. Executive order. — The following Executive order becomes op- erative on March 1, 1917, as to offenses committed on and after that date and as to criminal acts, committed prior to that date, whose maximum punishment was not prescribed in the Executive order of September 5. 1914. The Executive order of September 5, 1914, pub- lished in General Orders, No. 70, War Department, 1914, prescribing limits of punishment, remains operative as to offenses committed before March 1, 1917. except as to criminal acts whose maximum punishment has been decreased by this order, which will not be fol- lowed by severer punishment than is hereinafter prescribed. [Note. — 1. Only articles V and VIII are operative in time of war. (Ops. J. A. (I. 250.4, Feb. 20, 1918.) -. An offense committed prior to the declaration of war, but tried thereafter, comes within the Executive order prescribing the maximum limits of punishment; the order does not apply to offenses com- mitted in time of war. whether sneh offenses be tried during time of war or not until time of peace after the termination of the war. (Ops. J. A. G. 30-S23, Aug. -J'.». 1917. il Executive Oedeb. Under authority of an act of Congress approved September 27, 1890 (26 Stat., 491), as reenacted in article 45 of section 3 of an act of Congress approved Augusl 29, 1916 (39 Stat.. 657), the following maximum Limits, in time of peace, of punishmenl of soldiers are prescribed: 53915°— 18 12 162 MANUAL F011 col 1M S-MARTIAL. i.k r. OiTenses. Punishments. ■3 Dis- honor- able dis- forfeiture ..1 all pav and ancesdoe and to become due. Confinement at hard labor. feiture of two- t birds month. For- feiture of pay. s Years. Months. Days. Days. 54 Enlistment , fraudulent : Procured bj means of willful misrepre- sentation or concealment of regard to a prior enlistment or dis- avictlon i ii or military offense, or in re nil to Imprisonment under sen- tence of a court. Yes Ves .. 1 6 6 68 Attempting todi After not more than six months in . After more than sjx months in service.. In tho execution of a conspiracy or in of an unlawful asscm- a bleb the troops may bo oppos- ing. ■ I Ion: Terminated by apprehension— Not more than <> months in service at time of de-ertion. Mere than 8 months in service at time of desertion. Terminated by surra After absence of not more than 30 days. A fterabsen-c of more than 30 days.. In the execution ol a congpiracy or in the presence of an unlawful "assem- blage, wluch the troops may be oppos- ing. Yes Yes Ves Yes Yes Yes Yes Yes 1 3 U 2} 1 li 5 lig 6 6 tag knowingly, or persuading another tent. ■ ithout leave: From command, quarters, station, or camp — 1 61 3 2 ton of a day of absence. Fes 6 From guard— For not more t ban 1 hour 15 3 . .. 3 Patting to repair at the fixed time to the pointed place ol assembly for, .- tor: I .. 3 2 2 "II call 1 COURTS-MARTIAL PUNISHMENTS. Article I— Continued. 163 Offenses. Leaving without permission the properly appointed place of assembly for, or place Pis- honor- able dis- charge. forfeiture of all pay and allow- ances due and to become due. Athletic exercise. Drill Fatigue ■ erase. .. Gallery practice. Guard mounting exercise.. Inspection Instruction Prison guard Review School Stable duty Target practice Reveille or retreat roll call Using contemptuous or disrespectful words oe President, Vice President, etc. . it li disrespect toward his supe- rior i Attempting to strike or attempting other- •uilt a noncommissioned officer in the execution of his office. Behaving in an insubordinate or disrespect- ful manner toward a noncommissioned in the execution of his o Bee. '!•!>, willful, of the lawful order of a noncommissioned officer in the execution of his Striking or otherwise assaulting a noneom- . .1 officer in the execution of his office. Threatening to strike or otherwise assault, or using other threatening language to- ward a noncommissioned officer in the execution of his office. Using Insulting language toward a noncom- missioned officer in the execution of his office. Drawing a weapon upon a noncommis- ■ i 'idling a quarrel, fray, or disorder. i i obey a noncommissioned officer quellii order. mg a noncommissioBi irrel, fray, or disorder. I g from confinement Releasing, without proper authority, a ii committed to Bis el) i i prisoner committed to his charge Through desien Through neglect Suffering, through neglect, military prop- be damaged, lost, spoiled, or wrongfully disposed of: |20 or less i and more than $20. Of a value of more than $.">0 Confinement at hard labor. Years. Months. Days Yes. For- feiture of two- thirds For- feiture ol pay. Months. Days. 164 IWAXIAL FOB < <>l KTS-MAKTIAL. Abticj b 1 Conl inued. Offenses. I'uii: !: 1 - - Dis- honor- able dia- charge, forfeiture ofall pay and allow- ances due and lei become due. Confinement at hard labor. For- feiture of two- thirdfl paj per month. For- feiture of pay. - Years. Months. Months. Days. Eta Buffering, willfully, military property to be damaged, lost, spoiled, >>r wrongfully dis- l >< ■ ed of: 6 6 6 Of a value of $50 or less and m $20. Yes Yes 2 M injuring or losing, through neglect, horse, arms, ammuniaon,aocouterments, equip- ment, clothing, or other property issued fur use in ilie military service, or items ine i" two or men- of said cli 3 6 3 6 Of a I alue of $50 or less and more than $20. Yes 1 Injuring or losing, willfully, horse, arms, ammunition, accoutt nnents, equipment, clothing, or other property issued for use ; n th ice, or items belonging to t wo or more of said classes: 6 6 6 Of a \alue of $50 or less and more than $20. Yes... . Yes Yes . . 2 r\vi.-e wrongfullj disposing of borse, arms, ammunition, accouterments, equipment, clothing, or other property 1 for use in the military service, or ■ belonging to two or more of said ( I . es: 6 Of a value of $50 or less and more than $20 Yes.... Yes 1 5 ..:::::::: B5 drunk: At formation for or at— . ... i 5 6 G ■ 20 • hi quarters. COURTS-MARTIAL PUNISHMENTS. Article I — Continued. 165 Offenses. Punishments. i a Dis- honor- able dis- charge, forfeiture of all pay and allow- ances due and to become due. Confinement at hard labor. For- feiture of two- thirds |Kl\ per month. For- feiture of pay. < Years. Months. Days. Months. Days. Yes 6 1 3 OJ Leaving before regularly relieved from or deeping on post, sentinel. Using a provoking or reproachful speech or gesi are to another. Yes 1 3 Yes Yes Yes Yes Yes 20 5 10 20 10 Assault: With intent io commit any felony ex- cept murder or rape. With intent to commit murder or rape. . Embezzlement or larceny: of property of a value of S20or less Of property of a value of S50 or less, and more than $20. Of property of a value of more than $50 . Manslaughter: Involuntary, in the commission of an un- lawful act not amounting to a felony. or in the commission of a lawful act which might produce death, in an un- lawful manner, or without due cau- tion or circumspection. Voluntary, upon a sudden quarrel or heat of passion. 6 Yes Yes Yes Yes Yes Yes Yes 5 3 10 5 10 5 1 5 Forging or counterfeiting a signature, mak- ing a false oath, and offenses related to either of these. Other i $50. 6 3 3 6 3 3 Allowing a prisoner to receive or obtain intoxicating liquor. Appearing in civilian clothing without Appearing in unclean uniform, or not in prescribed uniform, or in uniform worn otherwise than in manner prescribed. 10 1 3 6 6 1 1 3 3 3 6 attempting to escape from confinemenl Attempting to strike or attempting other- wise to assault a sentinel in the execution of his duty. Behaving in an insubordinate or disrt fill manner toward a sentinel in the execu- tion of his duty. Breach of restriction (ot her t ban quarantine) to command, quarters, station, or camp. G 1 3 3 . mutilating, obliter- ating, or removing willfully and unlawfully a public record, or taking and carrying away a public record with intent to eon- destroy, mutilate, obliterate, remove, or steal the same. Conspiring to escape from confinement Destroying, willfully, public property: Of a value of $20 or less .' Yes 3 6 Y $20. Of a value of more than $50 1 Yes 1 5 1G6 MAXrAL FOR COURTS-MARTIAL. Article I -Continued. Offenses. Punishments. 3 -■ "3 - honor- able dis- forfeiturc ofall pay and afiow- aucwdue and to become due. Confinement at hard labor. feiture of two- thirds For- feiture S < Years. Months. oe 3 Disobedience, willful, of the lawful order of a sentinel In the e cecution of his doty. ily in command, quarters, station, or camp. Disorderly under such circumstances as to .11 upon the military sen Ice. 1 1 4 2 ■'. 6 • 1 ■1 2 8 6 Drunk and disorderly in command, quar- on. oi camp. Drunk and disorderly under such circum- stances as to bring di.-n.iii upon the military service. Drunk in command, quarters, station, or camp. Drunk under such circumstances as to bring m upon the military service. 15 3 3 3 3 Failing to obey a lawful order: Yes 1 6 6 6 3 1 6 Failing to pay a just debt under such cir- niiii (amis as to bring discredit upon the military service. official report or statement knowingly made: Yes.. 3 1 Yes Yes 3 5 Gambling: noncommissioned officer with a i of lower military rank or grade. In command, quarters, station, or camp in piol 3 2 3 2 3 Introducing a habit-forming narcotic drug tote command, quarters, station, or camp: Yes Yes 2 1 Dntrodui in^i intoxicating liquor into com- mand, quarters, station, or camp: 6 3 6 3 l Loan. ter as principal or agent, .nother Ing or Bitting down on duty by senti- Obtainlng money or other property under When the amount obtained is?20orless. When the amount obtained 1 and more than $20. When the amount obtained is more than MO. Refusing to submit to medical or dental mi ni. i:. in Ing to ni. mil i.. : :ion. . . i other unnatural crlmea 1 6 Yes Yes Ye 1 5 6 Yes 1 5 3 3 Ing a -.'Illillrl in i he execution of his duly. Yes 5 or e ! - mil or using other threatening language • mine! in the execution duty. 4 | •1 COURTS-MARTIAL PUNISHMENTS. Aiitiii.i: I— Continued. 167 Offenses. Punishments. i Dis- honor- able dis- charge, forfeiture ofall pay and allow- ances due and to become due. Confinement at hard labor. For- feiture of two- third* pay per month. For- feiture ol pay. Years. Months. Days. Months. Days. Unclean accontcrraent, arm, clothing, equipment, or other military property, found with. Dsme iaaulUug langnage toward a sentinel in tilt' execution of his duty. 1 3 1 3 Yes 5 Violation of condition of parole by general oner. 3 Article II. EQUIVALENTS. Section 1. Subject to the limitations set forth elsewhere in this order, sub- stitutions for punishments specified in Article I thereof are authorized at the tioi) <>f ihe court, at the rates indicated in the following table of equivalents : Forfeiture. Confinement at hard labor. Detention. TTard labor without con- finement. 1 day's pay.. 1J days' pay... 1J days. Aktici.e III. GENEBAX LIMITATIONS. i now 1. A court shall not, by a single sentence which does net include dis- .. discharge, adjudge against a soldier: (« i Forfeiture of pay at a rate greater than two-thirds of his pay per month. (6) Forfeiture of pay in an amount greater than two-thirds of his pay for six months. (i i ( V litiiieinent at hard labor for a period greater than six months. J A court shall not. by a single sentence, adjudge against a soldier: («) Detention of pay at a rate greater than two-thirds of his pay per month. (In Detention of pay in an amount greater than t\vo-thirf an offense or offenses for which they may adjudge confinement at bard labor for a period of five or more days. authorized substitution considered, adjudge, In addition to the punishments otherwise authorized, reduction against a aoncommlssloned officer <>r against :i private, Oral class. ARTICLE y. PREVIOUS CONVICTIONS. Si , i. a general or special court shall, upon conviction of a soldier, he opened and shall thereupon ascertain whether there is evident f a previous conviction or convict ions, which has heen referred to the court hy the con- vening' authority, and. if there he such evidence, shall receive it. SEC. 2. A court may. under the authority contained in section 1 of this arti- cle, receive evidence only of convictions by court-martial of an offense or of- fenses committed hy the accused during his current enlistment and within one year next preceding the commission hy him of an offense of which he stands convicted before the court. These convictions may be proved only by the records of previous trials and convictions or hy duly authenticated copies of such records or hy duly authenticated copies of orders promulgating such trials and convictions or hy a duly authenticated copy of the record of previous convictions as shown hy the service record of the accused. Abttcle VI. DISHONORABLE DISCHARGE. PTONl. A court may, upon his conviction of an offense or offenses for none of which dishonorable discharge and forfeiture of all pay and allow- ances due and to become due is, in Article I of this order or by the cus- tom of the service, authorized, upon proof of five or more previous convic- tions, adjudge against a soldier, in addition to the confinement at hard labor without substitution authorized in said article or by the custom of the service for the offense or offenses of which he is convicted, dishonorable discharge and forfeiture Of all pay and allowances due and to become due, and, in any such case in which such confinement so authorized is less than three months, a court may adjudge, in addition to such discharge and forfeiture, confinement at hard labor for three months. Sec. 2. A court may. upon his conviction upon one arraignment of two or more offenses for none of which dishonorable discharge, confinement at hard labor and forfeiture Of all pay and allowances due and to become due is. ; n Article I of this order or hy the custom of the service, authorized, hut the aggregate term of confinement at hard labor for which, as authorized in said article or by the CUStom of the service, without Substitution, equals or exceeds six months, adjudge against a soldier. In addition to the confinement al hard labor, without substitution, authorized in said article or hy the custom Of the service for the offense or offenses of which lie is convicted, dishonorable discharge and forfeiture of all paj and allowances duo and to become due. Article VII. mm. r and AI'IM.K vi [ON OF i i: [8 ORDER. Section i. This order prescribes the maximum limit of punishment for each oi the offenses therein specified, and thus indicates an appropriate punishment for an offense which is attended hy aggravating circumstances, or sifter convic- tion of which there is received by the court evidence of several previous C0U- COURTS-MARTIAL PUNISHMENTS. 169 victions. In other cases the punishment will be mailed down according to the circumstances thereof. SBC. 2. Offenses not herein provided for remain punishable as authorized by statute or the custom of the service, but, in casus for which maximum punish- ments are not prescribed, rourts will he guided by limits of punishment pre- scribed for closely related offenses. Aktki.i: VIII. A D M IMS 1 1 J A T I V I : B ULES. Section 1. Hard labor without confinement, when imposed as a punishment, Shall be performed in addition to other duties which fall to the soldier, and no soldier shall be excused or relieved from any military duty for the purpose of performing hard labor without confinement which has been imposed as a pun- ishment, but a sentence imposing such punishment shall be considered as satis- fied when the soldier shall have performed hard labor during available time in addition to performing his military duties. Sec. 2. Pay detained pursuant to the sentence of a court-martial will be detained by the Government until the soldier is furloughed to the reserve, dis- charged from the service, or mustered out of active Federal service. Article IX. DATE ON WHICH OPERATIVE. This order shall become operative on March 1. 1017. as to offenses committed on and after that date and as to criminal acts, committed prior to that date, whose maximum punishment was not prescribed in the Executive order of ;nber 5, 1914. The Executive order of September 5, 1914, published in General Orders, No. 70, War Department, 1914, prescribing limits of punish- ment, .shall remain operative as to offenses committed before March 1, 1917, except as to criminal acts whose maximum punishment has been decreased by this order, which will not be followed by severer punishment than is herein- prescribed. Woodbow Wilson. The White Hot-se, December 15, 1916. [Note.— Nothing in the foregoing Executive order is applicable to the National Guard not in the service of the United States. Sec. 102, act of June 3, 1916, (39 Stat., 208).] (C. J/. C. M., \o. J,.) CHAPTER XIV. COURTS-MARTIAL— PROCEDURE OF SPECIAL AND SUMMARY COURTS AND PROCEDURE ON REVISION. Section I: Special courts-martial: p aR9 350. Procedure i !1: Summary court-martial: 351 . Procedure (a) to (£•) 1 7 I Ejection HI* Procedase on revision: 352. Of general or special courts-martial 353. Of summary courts-martial Section I. SPECIAL COURTS-MARTIAL. 350. Procedure. — The procedure of and before special courts-man will, so far as practicable, be identical with that prescribed for g eral courts-martial. Section II. SUMMARY COURTS-MARTIAL. 351. Procedure. — (a) The summary court will be opened at a stat- hour daily, except Sundays, for the trial of such cases as have been properly referred to it for trial. Trials will be had on Sunday only when the exigencies of the service make it necessary. (b) The summary court will at the beginning of each trial, in the order of such trial, give to and enter in the proper place on the charges in the case a serial number. (c) The procedure of and before summary courts-martial will, so far as practicable, be identical with that prescribed for general courts-martial. In the trial of a case the summary court repres< both the Government and the accused. He will see to it that the interests of both are fully conserved. (d) When the accused pleads guilty he will — (1) Explain tohim (a) the elements constituting the offense to which he has pleaded guilty, and (o) the maximum punishment therefor; (2) Ask him whether he fully understands (a) that by pleading guilty thereto he admits all the elements of the crime oi off* and ( b ) that he may be punished as explained to him. In any such case he will also, in the manner below stated, make such impartial investigation, if any, as the doing of justice may ap- pear to require. (e) In the absence of a plea of guilty he will make a full, thorough, and impartial investigation of both sides of the entire matter before him. On behalf of the (Jovernnient he will obtain the attendance of, Mvi'ar. aaid examine such witnesses, and will obtain such other evidence, documentary and other, as may tend or may appear likely to tend to establish the allegations before him against the accused. On behalf of the accused he will, in the absence of a plea of guilty, obtain the attendance of, .-wear, and examine such witnesses, and will obtain 171 1 7l } MAM i \l. FOB COinW B-MABTIAL, such other ei idence, documentary and other, as may tend to disprove or aegative guiH of such allegations, or explain the acts or omissions charged, or show extenuating circumstances or establish good charao- He will permit the accused fully to examine all witnesses that appear, and will, t<> tin- fullest extent, aid him in making such exami- nation. He will, in every proper way, encourage and aid the accussed in making his defense. In :ill cases he will extend to the accused full opportunity to testify in his own behalf and to make a. statement in denial, in explanation, or in extenuation, and will, before arriving at ;, finding, assure himself, by inquiry of the accused, that he has no further testimony to offer and no further statement to make. (/) Having done so. he will, as SOOD as the trial is concluded, arrive a; bis findings and record them in the proper place on the charges. ) In the event of the conviction of a soldier he will consider the evidence of previous convictions, if any, referred to him. (/,' ) In any case of conviction he will, as soon as trial is concluded, impose sentence and record it in the proper place upon the charges. [;) In the event of a. finding of not guilty of all the charges and specifications he will record an acquittal instead of a sentence. (/,•) Having recorded his findings and an acquittal or sentence, he will subscribe his name, rank, and organization as summary court, and then without delay transmit the record of trial to the appointing authority. Section III. PROCEDURE ON REVISION. 352. Of general or special courts-martial.— The procedure of general or special courts-martial when reconvened for the purpose of revising their action or correcting their records will in general be as indicated by the form of record of proceedings on revision. (Appendix C>.) The members of the court who participated in the fundings and sen- tence or acquittal, together with the judge advocate and assistant judge advocate, if any, will assemble and the court will meet. It is not ordinarily necessary or proper that the accused be present, but there may be rare cases in which he should be present. The judge advocate will read to the court the indorsement of the appointing authority re- turning the record and. directing the reconvening, or, if the record of !.;. a special court-martial has been returned to him orally for revi- sion, may state brielh to the court the views and desires of the ap- pointing authority as communicated to him. The.court is then closed, considers and takes action upon the matter before it, is opened,and ad- journs. As the action so to be taken is entirely corrective, a case will not be reopened by the calling or recalling of witnesses or otherwise. 353. Of summary courts-martial.— What has hen -aid in respect to the procedure on revision by general or special courts-martial will, so far as applicable, govern such procedure by summary courts-martial. CHAPTER XV. COURTS-MARTIAL- RECORDS OF TRIAL. Section I: General courts-martial: Page. 354. Record required — how authenticated 173 355. What the record is and by whom prepared 174 356. Separate record 174 357. Contents of record 174 (a) In general 174 (6) In detail ] 74 (c) Record of revision 177 (d) Clemency recommendation 177 Section II: Special courts-martial: 358. Form and substance, (a) to (h) ■ 177 359. Number of copies 178 360. Not indexed 178 361. Briefed 178 362. Bound 178 Section III: Summary courts-martial . 363. Form and substance 178 Section IV: Correction of records of trial: 364. Records of general or special courts-martial ITS 365. Records of summary courts-martial 179 Section V : Disposition of records of trial 179 366. By trial judge-advocate 179 (a) Original record 179 (6) Carbon copy 179 367. By appointing authority 179 (a) Records of trial by general courts-martial 179 (6) Records of trial by special courts-martial 179 (c) Records of trial by summary courts-martial 180 ((/) Reports of trial by summary courts-martial 180 Section VI: Loss of records of trial: 368. Action to be taken 180 Section I. GENERAL COURTS-MARTIAL. 354. Record required — how authenticated. — Each general court- martial shall keep a separate record of its proceedings in the trial of each case brought before it, and such record shall be authenti- cated by the signature ol the president and the judge advocate, but in case the record can not be authenticated by the judge advo- 173 171:' MANUAL FOB COURTS-MARTIAL. cate, by reason of his death, disability, or absence, it shall ho signed by the president and assistant judge advocate, if any: and if there he no assistant judge advocate, or in case of bis death, disability, or absence, then by the president and one other member of the court. (A. W 355. What the record is and by whom prepared. — The legal record of a court-martial is that record which is finally approved and adopted by the court as a body and authenticated by the signatures of its president and judge advocate. The record is prepared bv the judge, advocate under the direction of the court, hut the eoiirt as a whole i- responsible for it. and the instrument which it approves as such is it- record, however the same may have been made up. It is imma- terial to the siifliciency of a record whether the same was kept or v> ritten by the judge advocate or by a clerk or a reporter acting under his direction. 356. Separate record. — Where several cases are tried by the same court the record of each ease should not only be complete and inde- pendent in itself and as much an entirety, both in form and in sub- stance, as if it were the only case tried, but should contain all that is essential to an original and independent official paper, and should be so perfected as to leave no material detail to he supplied from any pre\ ions or other record. Where sentence is pronounced the record should contain everything necessary to sustain it in fact and in law. 357. Contents of record.— (a) In general— The record of proceed- ings of a general court-martial will in each case show that all statutory requirements incident to that case have been complied with ; will state a complete history of the proceedings, regular and irregular, had in open court in that case; and will set forth the material conclusions arrived at in both open and closed sessions. The only acts of the court or members not properly stated or set forth in the record of trial are the discussions, votes, etc., had while the court was closed for deliberation upon some matter such as a challenge, an objection, find- ings, sentence, etc. Such discussions, etc., are no part of the formal record, and, as to votes and opinions of particular members, a state- ment of the>e is precluded by A. W. 19. It is, in fact, only the U of a deliberation in closed session that is to be entered upon the record. (A) ///. detail. — The record of proceedings in each case will show, among other thing-, each in its proper place: 1. A brief of itself in the prescribed form. 2. An index of itself in the prescribed form. :;. Whether a carbon copy of the record of trial was prepared, and i f so, the disposition made thereof. 4. The place and dale of each meeting of the court. COURTS-MARTIAL, RECORDS OF TRIAL. 175 T>. The fact and hour of each meeting. 6. The number, date, and source of the order appointing the court and of eacli amendatory order, each stated at the proper place in the record of trial. 7. The fact of the presence and the name. rank, and organization of each member, judge advocate and assistant judge advocate pn at the assembling of the court or at any proceedings in revision. -. The fact of the presence and the name, rank, and organizat of each new member, new judge advocate, or assistant judge advocate who begins to participate therein, together with citation of the au- thority for his so doing. 0. The fact of the absence and the name, rank, and organization of each member and the judge advocate or assistant judge advocate ab- sent at the assembling of the court or at any proceedings in revi- together with a statement of the reason for such absence. 10. That the accused was given opportunity to introduce counsel, and the action thereon. 11. That the accused and his counsel, if any, were present during all the open sessions of the court in his case except during such pro- ceedings in revision as did not so require. 12. The name of each person, if any. who acted as reporter during any part of the trial, and that each such person was sworn. 13. The name, rank, and organization of each member present who, during the trial, announced himself as, or was alleged to be, ineligible to sit as a member, together with the alleged reason- for such ineligibility, and the action had thereon. 11. The name of each person, if any, who acted as interpreter during any part of the trial, and that each such person was sworn. 1."). That the accused was informed of his right to demand a copy of the record of his trial, and was asked whether or not he de- sired a copy thereof, together with his answer thereto. 10. That the order appointing the court and each amendatory order was read to the accused in court and that he was given oppor- tunity to challenge each member of the court who sat as such during any part of the trial in his case, and the action, if any, had thereon, 17. That each member of the court who sat as such during any part of the trial of the case and each judge advocate and assistant judge advocate who appeared before the court in the case was sworn. 1^. The several charges and specifications upon which the ac- cused was arraigned. l->. The name, rank, and organization of the officer who sub- scribed the charges. •_'". The pleas of the accused to the several specifications and charges upon which he was arraigned. 17G MAMAl. FOB 0OUBT6-MABTIAL. 20$. Tn a proper case, that the president advised the accused of his legal right to plead the statute of Limitations. 21. That after a plea of guilty the president — - Explained to the accused (1.) the elements constituting the offense to which he had pleaded guilty; (•-') the maximum punish- ment for such nihil {!>) Asked tin' accused whether he fully understood (1) that by pleading guilty thereto he admitted all the elements of the crime or offense; (2) that he may he punished as explained to him. 22. The answer of the accused thereto and the action, if any, had tlnreon. 22$. That the judge advocate read (<» the court the paragraphs of the Manual for Courts-Martial that set out the gist of the offense or offenses charged. 23. That the several witnesses were sworn. 23$. In a proper case, that the president advised a witness ignorant of his rights that he might decline to answer any question where his answer might tend to incriminate him. 24. That each witness recalled to testify was cautioned, upon being so recalled, that he was still under oath. 25. That if the accused was sworn as a witness he was so sworn at his own request. 26. The questions propounded and the answers given by each of the several witnesses as nearly as possible in the language used, 27. That the accused was given full opportunity to examine each witness who gave testimony. 28. The fact of the introduction of each deposition and other paper received in evidence by the court, and that it is appended to the record properly marked. 29. The exact and entire text read by the pro-ecution or defense from any publication to the court, together with the title of the publication, the edition thereof, and the proper page number. 30. In a proper case, that the accused had no testimony, or no further testimony, to offer or no statement to make, or both. 31. That when the accused did not testify or make a statement the president explained to him in court that he might testify in his own behalf if he so desired, or make a statement in denial, in expla- nation, or in extenuation. Hi'. Each motion, objection, argument, statement, etc. made in open court and the action, if any, had thereon. ;;:;. The fact of each closing of the court. 34. The fact of each opening of the court and that the accused and his counsel, if any. were present when the court was opened. 35. I f a note was made of recess taken, that the members, the judge advocate, assistant judge advocate, the accused and his counsel, if any. and the reporter, if any. were present when the court again proceeded to busine 36. In a joint trial, that each and every one of the several accused A\as accorded each and every right and privilege he would enjoy if tried separately, and. as to each accused, proper findings and sentence COUBT&-MARTTAL — REC0BD9 OF TRIAL. 177 or acquittal. (The end here sought, however, will so far as prac- ticable be attained by the use of appropriate general language with- out unduly burdening the record with repetitions.) 37. The findings of each of the several specifications and charges not disposed of as a result of a special plea. 38. In case of the conviction of a soldier, that the court was opened for the purpose of receiving evidence of previous convictions, and its aei ion. 30. In case of receipt by the court of evidence of previous convic- tion-, that a copy of each is appended to the record, properly marked. 40. In case of the conviction of a soldier, that the accused was asked whether the evidence of previous convictions, if any, Avas correct and whether the statement of his service, as shown on the charge sheet, was correct, and his answers' thereto. 41. The sentence, acquittal, or other action finally taken. -1:2. In case of conviction of an offense for which the death pen- alty is made mandatory by law, that two-thirds of the members of the coma concurred in the finding. 43. In case of a sentence to sutler 'death, that two-thirds of the members of the court concurred in the sentence. 44. The adjournment. 45. That the judge advocate, or. in a proper case, the assistant judge advocate, subscribed each day's proceedings. 46. That the president and the judge advocate, or, in a proper case, the president and an assistant judge advocate, or, in a proper case, the president and one other member, subscribed the record. (In any case in which a person other than the judge advocate subscribes the record in lieu of the judge advocate, the facts which make such action necessary will appear.) -17. In case the judge advocate has recorded the findings and sen- tence with a typewriter, a certificate that he recorded the findings and sentence of the court. (c) Record of <■ vision.— Subject to the modifications indicated by the form for proceedings in revision, the foregoing will, so far as applicable, govern in respect to such proceedings. ' <,/) ,• ■/?.— A. recommendation to clemency will nof be embodied in the record proper, but will be bound into the recordim • the exhibits. (See par. 332.) {CM. CM., ;) C TT : ion II. SPECIAL COURTS-MARTIAL. 358. Form and substance.— (a) Except as otherwise indicated by the form for record of trial by special court, or elsewhere, the require- ment i of the form and substance of such records: are in gen- eral the same as for records of trial by general courts-martial. (M NTeither oral testimony received by the court nor statements nor arguments made will be recorded unless herein specifically re- quired or ordered by competent authority. (See par. 154 (d).) 13 178 MANUAL FOR COURTS-MARTIAL. ('■) Documentary eviderj . the originals of Avhit It can properly be appended to the record, such as depositions, certain I I mmendations to cl er similar papers, will be so appended. (d) Neither th( Is nor copies of writings, the originals of which can not properly be appended to the record, such as certifi of discharge, recommend to character, and similar papers, need be so appei (c) If a special plea is made, the record will set out in full the proceedings had thereon, including all testimony taken thereon and statements made relative thereto, as well as the disposition thereof made by the court. (/) Evidence of previous convictions, if any, will not be appended to the record, but will he returned by the trial judge advocate with the record of trial to the appointing authority. (g) No certificate that the judge advocate recorded typewritten findings or sentence is required. (//) The record will, at the end, contain sufficient space for the action of the reviewing authority. If necessary for this purpose, an extra sheet will be included. 359. Number of copies. — One copy only of the record will be pre- 360. Not indexed. — The record will not be indexed. 361. Briefed. — The record will be briefed as prescribed for the record of a general court-martiaL 362. Bound. — The record will be securely bound. The method of binding is not prescribed, but it must be such as will securely fasten bher all th< and parts that comprise the record. Easily removable clips or paper fasteners will not be used for this purpose. TTON III. SUMMARY COURTS-MARTIAL. 363. Form and substance. — The requirements in respect of the form and substance of records of trial by summary court are indicated in the form for record of trial by summary court. The findings and [uittal only are required to be recorded and subscribed by the summary court as such. The action of the commanding officer on the record, with dale and his signature, completes the record s except when approval by superior authority is required. i iox IV. CORRECTION OF RECORDS OF TRIAL. 364. Records of general or special courts-martial. A record of trial by general or ial which by reason of omission, error, or other defect i- substantially incomplete or incorrect, or which COURTS-MARTIAL RECORDS OF TRIAL. 179 in the opinion of the appointing authority shows improper action by the court, may be returned by the appointing authority to the.- president of the court, directing that the court be reconvened for such action as may be appropriate. In any such case the defective part of the record will be left unchanged and without erasure or interlineation, and the record of proceedings in revision will show specifically, ordinarily by page and line, the part of the original record that is changed and the change made. (See par. 352.) 3G5. Records of summary courts-martial. — A record of trial by sum- mary court which by reason of omission, error, or other defect, is sub- stantially incomplete or incorrect, or which, in the opinion of the ap- pointing authority, shows improper action by the court, may be re- turned by the appointing authority to the summary court for such action as may be appropriate. (See par. 353.) Section V. DISPOSITION OF RECORDS OF TRIAL. 366. By trial judge advocate. — (a) Original record. — The judge advo= cate of a court-martial shall, with such expedition as circumstance- may permit, forward to the appointing authority, or to his successo: in command, the original record of the proceedings of the court ii the trial of each case. The record should be forwarded as an in closure to an indorsement by the judge advocate, returning to tin appointing authority the charges and other papers referred to him and forwarding at the same time the required copy of the reporter's voucher. The original record of the proceedings of a general court- martial appointed by the President will be sent by the trial judge advocate directly to the Judge Advocate General of the Army. (b) Carbon copy. — The judge advocate of a general court-martia' shall, if the accused so desires, deliver to the accused, after it has been corrected, completed, and certified as a true copy except as to find- . sentence, and exhibits not copied, the carboncopy, when one is prepared, of the record of his trial. 367. By appointing authority. — (a) Records of trial by general irtial. — After having been acted upon by the officer appoint ing the court, or by the officer commanding for the time being, tin record of each trial by general court-martial, with the decisions air orders <>!' the appointing authority made thereon, accompanied i the statement of service, if there be any, and five copies of the ordei if there be any, promulgating the case, will be transmitted dir< to the Judge Advocate General of the Army. (b) Records of trod by special courts-martial. — After having been acted upon by the officer appointing the court, or by the officer com manding for the time being, the record of each trial 1>; 180 MANUAL FOR COUBTS-MABT] court-martial, accompanied by a copy of the order publishing the orwarded, ordinarily without indorsement or letter of transmittal, to the officei g general court-martial jurisdic- tion over the command, there to be fried In the office of the judge ad- ,. until th( il information in it required for the annual report of the judge advocate has been secured, when it may be de- stroy (, i . t of trial by summary courts-martial. — The several rec- .f trial by summary courts-martial within a command shall be filed together in the office of the commanding officer and shall consti- tute the summary-court record of the command. (d) Reports of trial by summary courts-martial. — The report of trial by summary court (copy of record of trial) will, with the least practicable delay after action has been taken on the sentence, be com- pleted and transmitted to the officer exercising general court-martial jurisdiction over the command, there to he filed in the office of the judge advocate until the statistical information in it required for the annual report of the judge advocate has been secured, when it may be destroyed. (C. M. C. M., No. I) Section VI. LOSS OF RECORDS OF TRIAL. 368. Action to be taken.— When, prior to action by the reviewing authority, a record of trial by court-martial is lost or destroyed, a new record of trial in the case will, if practicable, be prepared and will become the record of trial in the case. Such new record will, however, only be prepared when the extant original notes or other sources are such as to enable the preparation of a complete and ac- curate record of the case. In any case of loss of a record of trial by court-martial the summary court, judge advocate, or other proper person will fully inform the appointing authority as to the facts and as to the action, if any, taken. CHAPTER XVI. COURTS-MARTIAL— ACTION BY APPOINTING OR SUPERIOR AUTHORITY. Section I: Action on the proceedings: Page. 369. Appointing authority 182 370. Record of action by appointing authority 182 371 . Sentence not effective until approved 182 372. Effect of approval and disapproval 182 373. Manner of approval 182 374. The officer commanding for the time being 183 375. Action when accused is transferred to another department 183 376. Appointing authority must act in person 183 377. Powers incident to power to approve 184 37S. Confirmation of sentences 185 379. Powers incident to power to confirm 185 3S0. Mitigation of punishment — definition 186 381 . Mitigation or remission of sentences 186 3S2. Mitigation, when permissible 186 383. Effect of remission at time of approval 186 384. Commutation of sentences 186 385. Adding to sentences 187 386. Sentences in excess of legal limit 187 387. Action on sentence may be modified before publication 187 388. Where conviction of desertion is disapproved grounds to be stated 187 389. Place of confinement- change of .". . . .'. '. . . 187 390. Loss of files 187 391. Suspension of sentences until pleasure of President lie known 188 392. Suspension of sentences pot invoh ing dishonorable' discharge 188 393. Suspension of sentences of dishonorable discharge 188 394. Place of confinement to be designated by reviewing authority 189 395. Forms for action on sentence by reviewing authority 189 396. When confinement in a penitentiary may be directed 189 397. When confinement in disciplinary barracks will be directed 189 398. When confinement in post will be directed 190 399. Cooperation of reviewing authorities 190 400. Court-martial orders 190 Section II: Action after promulgation of sentence: 401. Date of beginning of sentence 190 402. Applications for clemency 191 403. Remission of suspended sentence of dishonorable discharge 191 40-1. Clemency applications limited to one in six months 191 181 182 MANUAL noN T. ACTION ON THE PROCEEDINGS. 369. Reviewing authority. — The term reviewing ity is em- ployed to designate the officer whose province and duty it is to take action upon the proceedings of a court-martial after the - are terminated, and, when tl ted to him Eor such action, to approve or disapprove the tal. This officer is ordinarily the commander who has convened the court. In his absence, however, or where the command has been otherwise changed, his successor in command, or, in the Language of A. W. 46, "the officer commanding for the time being" is invested (by that, article) with the same authority to pass upon the pro* and order the execution of the sentence in a case of con- viction. (Digest, j>. 554, XIV. A, 1.) The term "appointing au- thority*'' is sometimes employed 1<> denote the reviewing authority, but the Ian i he more correct one. {C. M.C. M., No. 370. "Record of action by reviewing authority. — Upon the receipt of the proceedings by the reviewing authority he will state at the end there* f in each ease his decisions and orders. (^'. M. C. J/.. .V,;. ;.) 371. Sentence not effective until approved. — No sentence of a court- la] shall be carried into execution until the same shall have been approved by the reviewing authority as defined in paragraphs B69 and 374. Upon acquittal, or upon conviction where th< does include dishonorable di.-charge or confinement, the ■ Lould be released from confinement or arrest as provided in paragraph The acquittal is not effective until it has been acted on by the proper reviewing authority. But the announcement of the result ial in orders is not essential to the validity of the sentenc acquittal, it is not necessary for the reviewing authority to approve the -findings and proa < dings. {('. M. C. M, 9 No. 4-) 372. Effect of approval and disapproval. — While approval gives life and operation to a sentence, disapproval, on the other hand, nullities it. A disapproval of the sentence of a court-martial by the reviewing authority is not -a mere expression of disapprobation but is a final ing end to i in the particular ring them entirely nugatory and inoperative; and the effect <>f a disapproval is the same whether or not the officer disapproving is authorized finally to confirm the •■ But to be thus operative a disapproval should be expressed. The effect i £ the entire disapproval of a sentence is not merely to annul the same . prevent the accruing < I ability or I'eil ure, which woidd have been incidental upon an approval. (Di- gest , p. 563, XI \ . . (1).) 373. Manner of approval. — The approval of the sentence should prop- erly be of a formal chanu b p. The article requires the >■ be approved. A formal approval of the findings only does not meet the requirement of the article. The sentence should be ap- COURTS-MARTIAL — APPOINTING OR SUPERIOR AUTHORITY. 183 proved by " the officer appointing the court," or the officer command ing for the time being, although — as in a case of a sentence of dis- missal in time of peace — he may not be empowered finally to confirm and give effect to the sentence. His approval is required as showing that he does not, as he is authorized to do, disapprove. (Digest, f 174. CIV, A, 1, and A, 2.) 374. The officer commanding for the time being. — The " officer com- manding for the time being," indicated in A. W. 46, is an officer who has succeeded to the command of the officer who appointed the court; as where the latter has been regularly relieved and another officer as- signed to the command; or where the command of the appointing officer has been discontinued, and merged in a larger or other com- mand, at some time before the proceedings of the court are com- pleted and required to be acted upon. Thus where, under these cir- cumstances, a separate brigade has ceased to exist as a distinctive or- ganization and been merged in a division, or a division has been simi- larly merged in an army or department, the commander of the di- vision in the one case and of the army or department in the other, is " the officer commanding for the time being," in the sense of the ar- ticle. So where a court was convened by a division commander, but before the reviewing authority had acted upon the sentence the di- vision was discontinued and the organizations composing it were dis- tributed among the divisions of another corps, it was held that the commander of this other corps was the officer " commanding for the time being." So, where, before the proceedings of a special court convened by a post commander were completed, the post command had ceased to exist and the command became distributed in the de- partment, it was held that the department commander, as the legal successor of the post commander, was the proper authority to approve the sentence. (Digest, p. 174, CIV, C, 1 ; p. 175, CIV, C, 2, and see C,4.) 375. Action when accused is transferred to another department. — . [Where an accused avIio has been tried by general court-martial pro ceeds with his command, from the department in which he has tried to another department, before action has been taken on 1 case by the reviewing authority, the commanding general of the d< | ment in which he has been tried is the proper reviewing author] the case. (Digest, p. 554, XIV, A, 3.) 376. Reviewing authority must act in person. — The reviewing it y can not delegate to an inferior or other officer his h reviewing authority as conferred by the fori nor can he authorize a staff or other officer I ion and orders on the proceedings, lie will hand the action taken by him on the proceedii gs, his rank fact that he is the commanding officer appearing after h {CM. CM., No. 40 184 MANUAL FOR COURTS-MARTTAL. 377. Powers incident to power to approve. — The power to approve the sentence of a court-martial shall be held to include: (a) The power to approve or disapprove a finding and to ap- prove only so much of a finding of guilty of a particular offense as involves a rinding of guilty of a lesser included offense when, in . pinion of the authority having power to approve, the evidence of record requires a finding of only the lesser degree of guilt; and (b) The power to approve or disapprove the whole or any part of the sentence. (A. W. 47.) The authority here conferred to a/pprovi only so much of a find- ing of guilty as involves a finding of guilty of a lesser included of- is coextensive with the power of courts-martial to convict of lesser included offenses. The more frequent occasions for the ex- i of this authority are indicated below. (1) Affray. (a) Assault. (b) Breach of peace (disorder). (2) Assault with intent to commit murder. (a) Any of the minor degrees of assault. (3) Battery. (a) Assault. (4) Murder. (a) Manslaughter. Voluntary. Involuntary. (b) Attempt to commit. (c) Felonious assault. (d) Assault and battery. (5) Mayhem. (a) Assault with intent to commit. {b) Assault and battery. (6) Eape. (a) Assault with intent to commit rape. (b) Assault and battery. (c) Assault. (7) Robbery. (a) Assault with intent to rob. (b) Larceny from the person. (( ;it hard labor for a definite period may be mitigated to confinement at hard labor and a forfeiture of two-thirds of the pay per month for a period not exceeding that prescribed in tit. 3S3. Effect of remission at time of approval.— The action of a review- ing authority in approving a sentence and simultaneously remitting a portion thereof is legally equivalent to approving only the sentence L (Bui. 1". p. .\ AVarDept., 1912.) 384. Commutation of sentences. — The power to commute sentences imposed by military tribunals, not being vested in military com- manders, can be by the President alone. Therefore a department commander can not commute to confinement at hard laboi •<•• of dishonorable discharge awarded an enlisted man. COURTS-MARTIAL — APPOINTING OR SUPERIOR AUTHORITY. 18? 385. Adding- to sentences. — Neither the reviewing authority nor an;- other officer is authorized to add to the punishment imposed by i court-martial. Where post orders classify all soldiers at a post according to their conduct, and provide that soldiers undergoing sentence of a court-martial will be denied pass privileges until the sentence is completed, such a provision adds to the punishment and is unlawful. (Bui. 4G, p. 7, War Dept., 1914.) 386. Sentences in excess of legal limit. — Where a sentence in excess of igal limit is divisible, such part as is legal may be approved and executed. (Digest, p. 5G1, XIV, E, 9, c.) Thus: When a sentence to confinement, hard labor without confinement, forfeiture, or de- tention of pay is in excess of the legal limit, the part within the limit is legal and may be executed. 387. Action on sentence may be modified before publication. — Action taken by a reviewing officer upon the proceedings and sentence of a court-martial may be recalled and modified before it has been published and the party to be affected has been duly notified of the same. After such notice the action is beyond recall. An approval can not then be substituted for a disapproval or vice versa. (Digest^ p. 565, XIV, E, 9 e.) 388. Where conviction of desertion is disapproved — Grounds to be stated. — Where the reviewing authority disapproves a sentence for desertion he should indicate in his review whether his disapproval is based upon his belief that the evidence does not show an intent to desert, or is for some other reason that assumes the accused was guilty as charged. The reason for so indicating the grounds of his disapproval is to enable the Quartermaster Corps to decide whether the pay and allowances due at date of alleged desertion should be forfeited and whether the reward paid for apprehending the deserter and the expenses incurred by the Government in transporting him from point of apprehension, delivery, or surrender to the station of his company or detachment or to the place of trial, including the cost of transportation of the guard, should be set against the alleged deserters pay, under A. R. 127, 1913. (12 Comp., 328; 15 idi ///., 661.) 389. Place of confinement— Change of.— The authority which designated the place of confinement or higher authority may chi the place of confinement of any prisoner under the jurisdicti.-: such authority: but when a military prison or post has been d< nated as the place of confinement of a prisoner under sentena power is competent to increase the punishment by designate penitentiary as the place of confinement. 390. Loss of files. — Where a court-martial convened by a depart m commander for the trial of an officer sentences the accused to the 188 MANUAL TOR COURTS-MAETIAL. punishment of a loss of files, the approval of the appointing authority is sufficient to give full effect to the sentence, and no action by superior authority can add anything to its effect or conclusiveness. Confirmation by the President is not .essential to the execution of such a sentence; and the fact that the same involves a change in the Army Register does not make requisite or proper a revision of the case by the "War Department. The department commander, however, can not restore the files, such action can be taken only by the President. {See A. W. 50.) 391. Suspension of sentences until pleasure of President be known. — Any officer who has authority to carry into execution the sentence of death, or of dismissal of an officer, may suspend the same until the pleasure of the President shall be known; and in such case, he shall immediately transmit to the President a copy of the order of sus- ion, together with a copy of the proceedings of the court. (A. W. 51.) 392. Suspension of sentences. — The authority competent to order the execution of the s< ntence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as docs not extend to death, and may re (he person under sentence to duty during such suspension. A sentence, or any part thereof, which has been so suspended may he remitted, in whole or in part, except in cases of persons confined in the United States Disciplinary Barracks or its branches, by the officer who suspended the same, by his successor in office, or by any officer exercising appropriate court-martial jurisdiction over the command in which the person under sentence may he serving at the time, and, subject to the foregoing exceptions, the same authority may vacate rder of suspension at any time and order the execution of the entence or the suspended pari thereof in so far a- the same shall not ■ heen previously remitted. The death or honorable disci person under suspended -entence shall operate as a complete remission of any unexecuted or unremitted pari of such sentence. (A. W. 52.) (See Ch. X, Army appropriation act of duly 9, 1918: Public N T o. L9a, 65th Cong.) (C. M. C. J/.. No. ',.) 393. Execution or remission — Confinement in disciplinary barracks.— When a sentence of dishonorable discharge has heen suspended until the soldier's release from confinement, the execution or remission <>f ; .n't of hi- sentence shall, i f (he soldier he confined in the United Disciplinary Barracks or any branch thereof, be directed by the Secretary of War. | A. W. 53.) (See Ch. X. Army appropria- tion aet of d'nly o. 1918: Public No. l r >:h 65th Cong.) A. W. 52 and 53 embody in court-martial practice the modern prin- ciple of the suspended sentence. This principle is of peculiar signifi- COURTS-MARTIAL APPOINTING OR SUPERIOR AUTHORITY. 189 cance in Army administration in time of war, since it not only enables the reviewing authority to extend to soldiers an opportunity to re- deem themselves bu1 also serves to save for the Army the highest possible percentage of the man power of the Nation. (( . M. 0. J/., No. 4-) 394. Place of confinement to be designated by reviewing- authority. — When the sentence of a general court-martial prescribes dishonor- able discharge and confinement, so much of the sentence as relates to confinement will be expressed in substantially the following form: To be confined at hard labor at such place as the reviewing authority may direct for [leaving to the reviewing authority the designation of the place of confinement.] 395. Forms for action on sentence by reviewing authority. — (See Appendix 10.) 396. When confinement in a penitentiary may be directed. — Except for desertion in time of war, repeated desertion in time of peace, and mutiny, no person shall under the sentence of a court-martial be punished by confinement in a penitentiary unless an act or omission of which he is convicted is recognized as an offense of a civil nature by some statute of the United States, or at the common law as the same exists in the District of Columbia, or by way of commutation of a death sentence, and unless also the period of confinement author- ized and adjudged by such court-martial is one year or more: Pro- vided, That when a sentence of confinement is adjudged by a court- martial upon conviction of two or more acts or omissions any one of which is punishable under these articles by confinement in a peni- tentiary, the entire sentence of confinement may be executed in a penitentiary : Provided further, That penitentiary confinement here- by authorized may be served in any penitentiary directly or indi- rectly under the jurisdiction of the United States: Provided further, That persons sentenced to dishonorable discharge and to confine- ment not in a penitentiary shall be confined in the United States Disciplinary Barracks or elsewhere as the Secretary of "War or the re- viewing authority may direct, but not in a penitentiary. (A. W. 42.) [Note. — For a full statement of the law relating to penitentiary confinement, the War Department policy with reference to the segregation of general prison- ers convicted of offenses punishable with penitentiary confinement and require- ments placed upon appointing authorities in stating the law applicable where such confinement is directed, see Chap. XIII, Sec. II, pars. 337, 339, and 341.] 397. When confinement in Disciplinary Barracks will be directed. — The United States Disciplinary Barracks at Fort Leavenworth, Ivans., or one of its branches will be designated as the place of con- finement of all general prisoners other than residents of Porto Rico, the Canal Zone. Hawaiian Islands, or the Philippine Islands who are to be confined for six months or more and who arc not to be con- fined in a penitentiary pursuant to the preceding paragraph. From time to time detailed instructions will be issued as to which of the 190 MANUAL FOR COURTS-MARTIAL. hall be designated and as to when the prisoners shall tw : to them. 398. When confinement in post will be directed. — A military post, m, or camp will be designate of confinement of any general prisoner whose case does not come within the terms of paragraphs 396 and 897 of this section. 399. Cooperation of reviewing authorities. — The successful segrega- tion of genera] prisoners according to the grade of their offense as ribed by the three preceding paragraphs must depend to a con- ible extent upon the cooperation of officers exercising general court-martial jurisdiction. The demand for prison Labor at posts is not deemed a sufficient reason for a departure from the rule of segre- gation prescribed. 400. Court-martial orders. — Trials by general courts-martial, in- cluding so much of the proceedings as will givi and specifications, the pleas, findings, and sentence, and the action and remarks of the reviewing authority, will be announced in general court-martial order- issued from the War Department or from other headquarters exercising general court-martial jurisdiction. If ilie charges contain matter which for any reason is unfit for publica- tion, such matter will be omitted from the order, but a copy thereof will be promptly furnished by the reviewing authority to the com- manding officer of the post at which the officer or soldier is confined, to be included with the paper- required to be sent to the commanding !■ of the post or other places of confinemenl where the sente ilinenient is to be executed. Trials by special courts-martial will also be published in orders similar in form to general court-martial orders. ( For form-, see Appendix 11.) (C. M. C. M .. No. 3.) Section II. ACTION AFTER PROMULGATION OF SENTENCE. 401. Date of beginning of sentence. — The order promulgating the proceedings of a court and the action of the reviewing authorit} 7 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, which date will be the beginning of a sentence of confinement, as well where dishonorable discharge is imposed as where it is not. A sentence of confinement is continuous until the term expires,, except where the prisoner is absent without authority or under a parole which proper authority revofo I livered to the civil authorities under A. W. 74. It is appropriate for the appointing authority to at the time of approval, confinement served by an accused prior thereto, and in a proper ease make it the basis of mitigation of the sentence. COURTS-MARTIAL APPOINTING OR SUPERIOR AUTHORITY. 191 When soldiers awaiting the result of trial or undergoing sentence commit offenses for which they are tried, the second sentence will be executed upon the expiration of the first, except that when the first sentence involves hard labor without confinement, and the second sentence hard labor with confinement, the second sentence will take precedence. If a soldier, while awaiting the result of a trial that terminates in a sentence of confinement without dishonorable dis- charge, or while undergoing a sentence of confinement without dis- honorable discharge, is tried for a further offense and sentenced to confinement without dishonorable discharge, the period of confine- ment imposed by the second sentence will be executed upon the ex- piration of the period of confinement imposed by the first; but -if the second sentence imposes confinement with dishonorable disc L. the period of confinement on the first sentence will terminate upon the date of the approval of the second sentence, leaving to be ex- alted only the confinement imposed by the second sentence. {('. .'/. C. 31.. No. 1.) 402. Applications for clemency. — The power to remit or mitigate punishment imposed by a court-martial, vested in the authority who appointed the court or the corresponding authority under whose jurisdiction the sentence is being executed, extends onl}' to unexecuted portions of a sentence. If the punisliment be one imposed by a era! court-martial, it may be remitted or mitigated only by an oiiicer competent to order a general court-martial and under whose jurisdic- tion the sentence is being executed. The fact that a soldier has been dis- honorably discharged through his sentence does not affect this power,, An application for clemency in case of a prisoner sentenced to con- finement in a penitentiary or in the United States Disciplinary Bar- racks or any branch thereof will be forwarded to The Adjutant General of the Army for the action of the Secretary of War and the President. A military prisoner sentenced to confinement in a penitentiary or in the United States Disciplinary Barracks or any branch thereof will, so far as concerns the exercise of clemency, be considered to have passed beyond the jurisdiction of the department or otKer commander from the date of the approval of his sentence. The power to commute sentences imposed by military tribunals, not being vested in military commanders, can be exercised by the Presi- dent only. 403. Remission of suspended sentence of dishonorable discharge. — lie* quests to remit the dishonorable discharge under a suspended sen tence of dishonorable discharge are requests for clemency, and will le to the authority empowered to extend clem 404. Clemency applications limited to one in six months. — It appea that the expenditure of much unnecessary time and labor is ; ::-- • in the reexamination in i\^- War Department upon further applica- 192 MANUAL FOR COURTS-MARTIAL. for clemency of caa s relating to military prisoners which have ived recent and thorough consideration m connection with prior applications, the Secretary of War has directed that where such further application is received at the War Department within six months of Buch prior consideration the case will not be reexamined unless there be set forth in the application new and material reasons for the granting of clemency, but that the applicant will be advised of the recent consideration and of the action had thereon. CHAPTER XVII. PUNITIVE ARTICLES. I: Enlistment: Muster: Returns: Page. 405. Fifty-fourth article 106 I. Fraudulent enlistment 107 40G. Fifty-fifth article 107 I. Unlawful enlistment or muster in 108 407. Fifty-sixth article 108 I. Making false muster 100 II. Signing, etc., false muster rolls 199 III. Taking money, etc., on muster or signing muster rolls 100 IV. Mustering as an officer or soldier one who is not 109 408. Fifty-seventh article 200 I. Making false returns 200 II. Omitting to render returns 200 Section IT: Desertion: Absence loithout leave: 400. Fifty-eighth article 201 I. Desertion 202 II. Attempting to desert 202 410. Fifty-ninth article 202 I. Advising desertion 203 II. Persuading desertion 203 III. Assisting desertion 203 411. Sixtieth article 204 I. Retaining a deserter 204 412. Sixty-first article 204 I. Absence without leave 205 Section III: Disrespect: Insubordination: Mutiny: 413. Sixty-second article 206 I. Disrespect toward the President, etc ^ 207 414. Sixty-third article 207 I. Disrespect toward superior officer 208 415. Sixty-fourth article 208 I. Assaulting superior officer 200 II. Disobeying superior officer 200 416. Sixty-fifth article 211 I. Assaulting a noncommissioned officer 212 II. Disobeying a noncommissioned officer 212 III. Using threatening or Insulting language or behaving in an insubordinate or disrespectful manner toward a non- commissioned officer 212 417. Sixty-sixth article 213 I. Attempting to create a mutiny (or sedition) 213 II. Beginning a mutiny (or sedition) 214 53915°— 18 11 193 194 MANUAL FOE COURTS-MARTIAL. Section Hi: Dim ipect: Insubordination: Mutiny— Continued, 417. sixty-sixth article Continued. Pag". III. Joining in n mutiny (or sedition) 214*. i\. Exciting a mutiny (or sedition) 21-a v. Causing a mutiny (or sedition) 214 41S. Sixty-seventh article 215 l i are mutiny (or sedition) 215 11. Fafiure to give information of mutiny (or sedition) 216 419. Sixty-eighth article 216 i iv. Refusing to obey or assaulting, ete., officer or non- commissioned officer who is attempting to suppress a quarrel, fray, or disorder 217 Section IV: Ancst: Confinement: 420. Sixty-ninth article 218 I. Breach of arrest 218 II. Escape horn confinement 219 421. Seventy-lirst article 219 I. Kef using to receive or keep prisoners 220 •ILiL!. Seventy-second article 220 I. Failure to render report as prescribed 220 423. Seventy-third article 1. Releasing prisoner without proper authority 222 II. Suffering prisoner to escape through neglect ^l'l' III. Suffering prisoner to escape through design i!u:; 42 1. Seventy-fourth article I. Refusing to deliver accused pe rso ns 'S-l~> II. Refusing to aid in apprehend ing accused persons '--i~> Section V: War offenses: 425. Seventy-fifth article 225 I. Misbehavior before the enemy II. Running away before the enemy 226 III. Shamefully abandoning or delivering up any command- --& IV. Speaking words inducing these acts i2_'7 A". Casting away arms or ammunition 228 VI. Quitting post or colors to plunder or pillage 22£ VII. Occasioning false alarms 228 42G. Seventy-sixth article 229 I. Subordinates compelling connn. 427. Seventy-seventh article 22fl I. Making known parole or countersign 23( II. Giving different parole or countersign 23( 428. Seventy-eighth article 230 I. Forcing a safeguard 231 Seventy-ninth article 231 I. Neglecting t<> secure captured public property 232 II. Wrongful appropriation of captured public property 430. Eightieth article I. Dealing in captured or abandoned property II. Failure or delay in reporting receipt of cap! ured or aban- doned property PUNITIVE ARTICLES. 195 Section V: War offenses— Continued. Page, 431. Eighty-first article 234 I. Relieving the enemy 234 II. Harboring or protecting the enemy 234 III. Holding correspondence with the enemy 235 IV. Giving intelligence to the enemy 235 432. Eighty-second article 236 I. Being a spy 23G Section VI: Miscellaneous crimes and offenses: Eighty-third article 237 I. Suffering military property to be lost, etc 238 434. Eighty-fourth article 238 I. Selling or wrongfully disposing of military property. 239 II. Willfully or through neglect injuring or losing mili- tary property. 239 435. Eighty-fifth article 239 I. Being found drunk on duty 241 436. Eighty-sixth article 242 I. Being found drunk on post 242 II. Being found sleeping on post 242 III. Leaving post before being relieved 242 437. Eighty-seventh article 243 I. Laying a duty or imposition upon the bringing in of victuals, etc 243 II. Being interested in the sale of victuals, etc 243 438. Eighty-eighth article 241 I. Intimidating, etc., persons bringing necessaries 245 439. Eighty-ninth article 245 I. Committing waste or spoil 245 II. Willfully destroying property — 246 III. Committing depredation or riot 246 IV. Refusing or omitting to see reparation made 246 440. Nineteenth article 24€ I. Using provoking speeches or gestures 247 441. Ninety-first article 247 I. Fighting or promoting a duel 24S II. Being concerned in or conniving at fighting a dm i-_ 24S III. Failing to report knowledge of a challenge 248 442. Ninety-second article 248 I. Murder 249 II. Rape 413. Ninety-third article 252 I. Manslaughter 25S II. Mayhem 254 III. Arson IV. Burglary 25! V. Larceny 25^ VI. Robbery 265 VII. Embezzlement 264 VIII. Perjury 264 IX. Assault witli intent to commit any felony 206 1. Assault with intent to murder 268 2. Assault with Intent to commit manslaughter.- 269 3. Assault with intent to commit rape 270 iy6 MANUAL FOR COUBTS-MABTIAL. 71: Miscellam ) That the muster was false as alleged. (c) That the accused officer knew this at the time of making the muster. II. SIGNING, DIRECTING, OR ALLOWING THE SIGNING OF FALSE MUSTER ROLLS. (a) That the accused officer signed the muster roll or directed or allowed the signing of the muster roll as alleged. (b) That such muster roll was false in certain particulars as alleged, (c) That the accused officer knew this at the time he signed the roll or directed or allowed it to be signed as alleged. III. TAKING MONET OR OTHER CONSIDERATION ON MUSTER OR SIGNING MUSTER ROLLS. PROOF. (a) That the accused officer made the muster of the organization or signed the muster rolls as alleged. (b) That he accepted money or other consideration as a compensa- tion or reward for making the muster or signing the muster rolls. (c) That the taking of such money or other consideration was wrongful — that is, without legal excuse. IV. MUSTERING AS AN OFFICER OR SOLDIER ONE WHO IS NOT. rnooF. (a) That the accused officer mustered as an officer or soldier a certain person, as alleged. 200 MANUAL FOR COURTS-MARTIAL. (b) Thai the person so mustered was not such officer or soldier. ( ) That the accused knew this when he made the muster. FIFTY-Sr.YI.NTII ARTICLE. 408. Every officer commanding i an Independent troop, battery, or company, or a garrison shall, in the beginning of every n th, transmit through the proper channels, to the Departmeni of War, an exact return of the same. Every officer whose duty it is to render to the War Department or other superior authority a return of the state of the troops under his com- mand, or of the arms, ammunition, clothing, funds, or other property thereunto who knowingly mi e return thereof si tissed from the service and suffer such other punishment as a court-martial may direct. And any officer who. through neglect or design, omits to render such return shall be punished as j ( court-martial may direct. ("See Ch. X. Army appro- 1918: Public No. 193, 65th C< < Definitions and Principles. See the terms of the article, the penal part of which applies broadly to "every officer whose duty it is to render to the War Department or other superior authority a return of the state of the troops under his command, or of the arms, ammunition, clothing, funds, or other property thereunto belonging." Analysis and Proof. The article applies to commanding officers only. The article defines two offenses : I. Making false returns. II. Omitting to render returns. I. MAKING FALSE RETURNS. As to knowingly, see remarks under fifty-fifth article. PBOOF. (a) That the accused officer was a commanding officer, as alleged. (b) That it became his duty as such to render to a certain superior authority a certain return as specified. (c) That he complied with such duty, and that the return so made was false in certain particulars, as alleged. (d) That the accused officer knew that the return was false at the time of making it. II. OMITTING TO BENDER RETURNS. The term "neglect" involves the idea of culpability and includes ,.- ease of an officer who, knowing the return to be due, fails to render it through remissness or procrastination. PUNITIVE ARTICLES. 201 (a) That the accused officer was a commanding officer as alleged. (b) That it became his duty as such to render to a certain superior authority a certain return as specified. (r) That he omitted through neglect or design to render such . (C. M. 0. J/.. No. 40 Section II. DESERTION— ABSENCE WITHOUT LEAVE. FIFTY-EIGHTH ARTICLE. 409. Any person subject to military law who deserts or attempts to desert the service of the United States shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct, and, if the offense be committed at any other time, any punishment, excepting death, that a court-martial may direct. Definitions and Principles. Desertion is absence without leave accompanied by the intention not to return. Both elements are essential to the offense. The offense becomes complete when the person absents himself without authority from his place of service with intent not co return thereto. A prompt repentance and return are no defense, nor is it a defense that the deserter at the time of departure intended to report for duty else- where. Thus, where a soldier leaves his post intending never to go back unless a certain event happe7is, or leaves his post with such intent and reports at another post, he is a deserter; but unless such intent exists at some time the soldier can not be a deserter whether his purpose is to stay away a definite or indefinite length of time. Where a soldier, without having been discharged, again enlists in the Army or in the Militia in the service of the United States, such enlistment is, by the twenty-ninth. article, made sufficient evidence of desertion. In such a case, proof of the intent permanently to stay away from his former place of service and of the status of absence without leave therefrom are unnecessary. Analysis and Proof. The article includes all persons subject to military law. See Article 2. The article defines two offenses, as follows: I. Desertion. II. Attempting to desert. 202 MANUAL FOR COURTS- MARTIAL. I. DESERTION. (a) That the accused absented himself, or remained absent with- out authority, from his place of service, as alleged. (b) That he intended, at the time of absenting himself or at some time during his absence, to remain away permanently from Mich place. I ■•) That his absence was of a duration and was terminated as alleged. (d) That his act was done, if so alleged, in the execution of a certain conspiracy, or in the presence of a certain outbreak of Indians, or of a certain unlawful assemblage which his organization was opposing, or in time of war where the court will not take judi- cial notice of the existence of a status of war. (r (e) Where the soldier enlisted without a discharge (see twenty- ninth article), that the accused was a soldier in a certain organiza- tion of the Army as alleged; and that, without being discharged from such organization, he again enlisted in the Army, Navy. Marine Corps, or some foreign army as alleged. In this case proof of the absence without; leave and of the intention not to return become unnecessary. II. ATTEMPTING TO DESERT. An attempt to desert is an overt act other than mere preparation toward accomplishing a purpose to desert. Usually the endeavor of the accused toward getting away will be frustrated by an agency independent of his own will ; but once the attempt is made a turning back by the accused of his own accord does not obliterate the offense. An instance of the offense is: A soldier intending to desert hides himself in an empty freight car on the post, intending to effect his escape from the post by being taken out in the car. PROOF. (a) That the accused made the attempt by doing the overt act or acts alleged. (b) That he intended to desert at the time of doing such act or acts. (c) That his act was done, if so allegi d, in the execution of a cer- tain conspiracy, or in the presence of a certain outbreak of Indians, or a certain unlawful assemblage which his organization was oppos- ing, or in time of war where the court will not take judicial notice of the existence of the status specified. FIFTY-NINTH ARTICLE. 410. Any person Bubjed to military law who advises or persuades or know- ingly assists another to desert the service of the United .states Bhall, if thfc PUNITIVE ARTICLES- 203 offense be committed in time of war. Buffer death, <>r such other punishment as a court-martial may direct, and, If the offense be committed at any other time, any punishment, excepting death, that a court-martial may direct. Definitions and Principles. See the definition of desertion under the next preceding article. As to knowingly, see remarks under the fifty-fifth article. The offenses of persuading and assisting desertion are not com- plete unless the desertion occurs; but the offense of advising is com- plete when the advice is given, whether the person advised deserts or not. It is not necessary that the accused act alone in giving the advice or assistance, or in the persuasion; and he may act through other persons in committing the offenses. Analysis and Proof. The article applies to all persons subject to military law. See article 2. The article defines three offenses, as follows: I. Advising desertion. II. Persuading desertion. III. Assisting desertion. i. advising desertion. (a) That the accused advised a person subject to military law to desert the service as alleged. (b) That the act was done, if so alleged, in time of war, where the court will not take judicial notice of the status of war. II. persuading desertion. (a) That the accused used persuasion to induce a person subject to military law to desert the service as alleged. (0) That the person whom he persuaded deserted as alleged, and was induced to do so by such persuasion. See proof of desc in the next preceding article, items (a) and (b). (c) That the act was done, if so alleged, in time of war, where the court will not take judicial notice of the status of war. III. ASSISTING DESERTION. (a) That the accused knowingly assisted a person subject to mil- itary law to desert the service as alleged. 204 MANUAL FOR COUNTS-MARTIAL. (I) That the person given such assistance deserted as alleged. See proof of desertion in the next preceding article, items (a) and (5). (c) That the act was done, if so alleged, in time of war, where the court will not take judicial notice of the status of war. SIXTIETH ARTICLE. 411. Any officer who, after having discovered that a soldier in his command is a deserter from the military or naval service or from the Marine Corps, retains such deserter In his command without Informing superior authority or the com- the organization to which the deserter belongs shall be punished as a court -martial may direct. Definitions and Principles. definition of desertion under article 58. Discovered does not imply a certainty on the one hand or a mere suspicion on the other. It implies such a belief as the ordinarily prudent officer would act upon. Analysis and Proof. The article applies only to commanding officers. The article defines one offense: I. RETAINING A DESERTER. (a) That the accused officer exercised a certain command as al- leged. (b) That while so in command he discovered that a certain soldier in his command was a deserter from the military or naval service, or from the Marine Corps, as alleged. (c) That such soldier was in fact such a deserter. See proof of desertion under fifty-eighth article, items (a) and (b). (-/) That he retained such deserter in his command without in- forming superior authority or the commanding officer of the organi- zation to which the deserter belongs, as alleged. SIXTY-FIRST ARTICLE. 412. Any person subject to military law who Calls to repair at the fixed time to the properly appointed place of duty, or goes from the same without proper leave, or absents himself from his command, guard, quarters, station, or camp without proper leave, Shall be punished as a court-martial may direct. PUNITIVE ARTICLES. 205 DEFINITION'; AND PrINCEPIJ I. The article is designed to cover every case not elsewhere provided for where any person subject to military law is through his own fault not at the place where he is required to be at a time when he should be there. The first part of the article — that relating to properly appointed place of duty— applies whether such place is appointed as a rendez- vous for several or for one only. Thus, it would apply in the case of a soldier failing to report as the kitchen police or leaving such duty after reporting. A soldier turned over to the civil authorities upon application is not punishable under this article for the period he is held by them under such delivery. So, also, where a soldier is absent with leave and is hold, tried, and acquitted by the civil authorities, his status d< es not change to absence without leave. But where the soldier is absent without leave when tried, although acquitted, or being absent with leave is convicted and held beyond the expiration of his pass, or being absent without leave is unable to return through sickness or lack of transportation facilities, or other disabilities, the period of the absence without leave will include the time he is so detained; but, in view of the fact that the absence during such time is enforced, it would be appropriate not to consider the length of such detention for the purpose of administering punishment in the case. In computing the length in days of a period of absence for the purpose of determining the maximum punishment for an absence without leave under this article periods of 24 hours are considered one day. Thus, a soldier who absents himself from 11.59 p. m. one day id 1-2.01 a. m. the next is absent only a fraction of a day as far as the maximum punishment order is concerned, although the period of absence cover parts of two calendar days. Analysis and Proof. The article applies to any person subject to military law. See Articli The article defines a number of offenses which may be treated under the general term "Absence without leave." I. ABSENCE WITHOUT LEAVE. PROOF. (1) Where the accused fails to appear at or goes from a place of duty. (a) That a certain authority appointed a certain time and place for a certain duty by the accused, as alleged. 206 MANUAL FOR COURTS-MARTIAL. (b) That he failed to report to such place at the proper time, or having so reported went from the same without authority from any- one competent to give him leave to do bo. (2) Where the accused is charged with absenting himself without proper leave. That the accused absented himself from his command, guard, quarters, station, or camp for a certain period, as alleged. (b) That such absence was without authority from any one com- petent to give him leave. Section III. DISRESPECT— INSUBORDINATION— MUTINY. SIXTY-SECOND ARTICLE. 413. Any officer who uses contemptuous or disrespectful words against the President, Vice President, the Congress of the United States, the Secretary of War, or the governor or legislature of any State, Territory, or other possession of the United States in which he is quartered shall he dismissed from the serv- ice or suffer such other punishment as a court-martial may direct. Any other person suhject to military law who so offends shall be punished as a court- martial may direct. Definitions and Principles. The contemptuous or disrespectful words, as used in this article, cover language disrespectful and contemptuous in themselves, such as abusive epithets, denunciatory or contumelious expressions, or intemperate or malevolent comments upon official or personal acts, etc.. or words disrespectful or contemptuous because of the connec- tion in which and the circumstances under which they arc used. It is essential that a person against whom such words are used be in one of the offices named at the time; but it is immaterial whether the words arc spoken against him in his official or private capacity. The truth or falsity of the statements is, as a rule, immaterial. Trials for offenses covered by this article have usually been for the use of "contemptuous or disrespectful words against the Presi- dent," or the Government mainly as represented by the President. The deliberate employment of denunciatory or contumelious lan- ■1 to the President, whether spoken in public or pub lished, or conveyed in a communication designed to be made publi< has, in repeated cases, been made the subject of charges and tria under this article. (Digest, |>. 120; Winthrop, p. 872.) The Language used must be disrespectful or contemptuous. Adverse criticism of the Executive expressed in emphatic language in the hea - . of political disi ussion, but not apparently intended to be personally • spectful, should not be made the basis of trial under this article. (Idem.) PUNITIVE ARTICLES. 207 Analysis and Proof. The article applies to any person subject to military law. The article defines a number of offenses which may be treated under the general term of " disrespect toward the President, etc." I. DISRESPECT TOWARD TJLE PRESIDENT, ETC. (a) That the accused used certain contemptuous or disrespectful words against the President, or other of the authorities mentioned in the article, as alleged. (b) Where such words are not contemptuous or disrespectful in themselves that the words were used under certain circumstances or in a certain connection, or that a certain intended meaning gave them the character of contemptuous or disrespectful words, as alleged. SIXTY-THIRD ARTICLE. 414. Any person subject to military law who behaves himself with disrespect toward his superior officer shall be punished as a court-martial may direct. Definitions and Principles. The disrespectful behavior contemplated by this article is such as detracts from the respect due to the authority and person of a superior officer. It may consist in acts or language, however expressed. It is not essential that the disrespectful behavior be in the presence of the superior, but in general it is considered objectionable to hold one accountable under this article for what was said or done by him in a purely private conversation. The officer toward whom the disrespectful behavior was directed must have been the superior of the accused at the time of the acts charged; but by superior is not necessarily meant a superior in rank, as a line officer, though inferior in rank, may be the commanding officer, and thus the superior of a staff officer, such as a surgeon. Disrespect by words may be conveyed by opprobrious epithets or i contumelious or denunciatory language. (Winthrop, p. 874.) Disrespect by acts may be exhibited in a variety of modes — as neg lecting the customary salute, by a marked disdain, indifference, inso lence, impertinence, undue familiarity, or other rudeness in the pres ence of the superior officer. (Winthrop, p. 875.) It is not essential that the behavior be intentional, and it is imma terial that only facts were stated; but where the person who did tl acts or spoke the words did not know that the person against whoi they were directed was his superior officer, such ignorance defense. 208 IsT AN UAL FOR COTJXtTS-MABTIAL. A WAIiTSIS AND PitOOF. The article applies to any person subject to military law. See Article 2. The article defines one offense, that is, disrespect toward a superior officer. I. DISRESPECT TOWARD A BTJPERIOB OFFICES. (a) That th< ! did or omitted to do certain acts or spoke certain words toward a certain officer, as alleged. (l>) That the behavior involved in such acts, omissions, or words was that under certain circumstance or in a certain connection or with a certain meaning, as alleged. (c) That the officer toward whom the acts, omissions, or words were directed was the accused's superior officer. SIXTY-FOURTH ARTICLE. 415. Any person subject to military law who, on any pretense whatsoever, strikes his superior officer or draws or lifts up any weapon or offers any violence against him, being in the execution of his office, or willfully disobeys any law- ful command of his superior officer, shall suffer death or such other punishment as a court-martial may direct. Definitions and Principles. The phrase " on any pretense whatsoever " is not to be understood as excluding as a defense the fact that the striking was done in legitimate self-defense or in the discharge of some duty, such as is enjoined by the sixty-seventh article. By " superior officer " is meant not only the commanding officer of the accused, whatever may be the relative rank of the two, but any other commissioned officer of rank superior to that of the accused. That the accused did not know the officer to be his superior is available as a defense. Analysis and Proof. The article applies to any person subject to military law. See Article 2. Tin- article embraces offenses indicated by the following diagram: Si ri Ices Any i Bubjecl to military law who or Draws On any pretense or [ Any weapon against or iy violence a or Willfully disobeys any lawful command of bia Buperior office Ilis superior offici a being in the ex ecution of hit office. PUNITIVE ARTICLES. 209 Those offenses may be treated under the following heads: I. Assaulting superior officer. II. Disobeying superior officer. I. ASSAULTING SUPERIOR OFFICER. The word "strikes'* means an intentional blow with anything by which a blow can be given. The phrase "draws or lifts up any weapon against'' covers any simple assault committed in the manner stated. The offense consisting either in a mere threatening of violence without anything further being proposed, or in an attempt to do violence which is not effectuated. The weapon chiefly had in view by the word " draw " is no doubt the sword; the term might, however, apply to a bayonet in a sheath, or to a pistol; and the drawing of either in an agj manner, or the raising or brandishing of the same minaciously in the presence of the superior and at him is the sort of act contemplated. The raising in a threatening manner of a firearm (whether or not loaded) or of a club, or any implement or tiling by which a serious blow could be given, would be within the I'tioii — "'lifts up."' (Winthrop, p. S79.) The phrase " offers any violence against him " es any form of battery or of mere assault not embraced in the preceding more i tie terms "strikes"' and " draws or lifts up." But the violence where not executed must be physically attempted or menaced. A mere threatening in words would not be an offering of violence in the of the article. (Winthrop, pp. 879 and 880.) An officer is in the execution of his office "when engaged in any act or service required or authorized to be done by him by statute, lation, the order of a superior or military usage.*' (Winthrop, si.) PROOF. («) That the accused struck a certain officer with or without a in thing or weapon or drew or lifted up a certain weapon -t him or offered violence against him, as alleged. (b) That such officer was the accused's superior officer at the time. i hat such superior officer was in the execution of his office at the time, as alleged. II. DISOBEYING SETERIOR OFFICER. The willful disobedience contemplated is such as shows an inten- tional defiance of authority, as wher< .< soldier is given an order 15 210 MAM AL FOR COURTS-MARTIAL. by an officer to do or cease from doing a particular thing at one- ami refuses to do what is ordered or simply omits to do it. Where the order is operative in futuro a mere neglect to comply with it "through heedlessness, remissness, or forget fulness is an offense chargeable not in general under this article, but under the "general article" (Winthrop, p. 884), and the same is true of a mere refusal to obey such an order before the time set for its execution. The order must relate to military duty and be one which the superior officer is authorized under the circumstances to give the accused. Disobedience of an order which has for its sole object the attainment of some private end or which is given for the sole pur- pose of increasing the penalty for an offense which it is expected the accused may commit is not punishable under this article. An accused can not be convicted of a violation of this article if the orden was in fact unlawful; but, unless the order is plainly illegal, the disobedience of it is punishable under the general article, i. e., the ninety-sixth article. To justify from a military point of view a military inferior in disobeying the order of a superior, the order must be one requiring something to be done which is palpably a breach of law and a crime or an injury to a third person, or is of a serious character (not in- volving unimportant -consequences only) and if done would not be susceptible of being righted. An order requiring the performance of a military duty or act can not be disobeyed with impunity unless it has one of these characteristics. That obedience to a command involved a violation of the accused's religious scruples is not a defense. Failure to comply with the general or standing orders of a depart- ment, district, post, etc., or with the Army Regulations, is not an offense under this article, but under the ninety-sixth article; and so of a nonperformance by a subordinate of any mere routine duty. The form of the order is immaterial as is the method by which it is transmitted to the accused; but the communication must amount to an order and the accused must know that it is from his superior officer; that is, a commissioned officer who is authorized to give the order whether he is superior in rank to the accused or not. (a) That the accused received a certain command from a certain officer as alleged. (I>) That such officer was the accused's superior officer. (c) That the accused willfully disobeyed such command. PUNITIVE ARTICLES. 211 SIXTY-FIFTH ARTICLE. 416. Any soldier who strikes or assaults, or who attempts or threatens to strike or assault, or willfully disobeys the lawful order of a noncommissioned office" while in the execution of his office, or uses threatening or Insulting Language, or behaves in an insubordinate or disrespectful manner toward a noncommls sioned officer while in the execution of his office, shall be punished as a court martial may direct . Definitions and Principles. This article has the same general objects with respect to noncom- missioned officers as the sixty-third and sixty-fourth articles have with respect to commissioned officers, namely, to insure obedience to their lawful orders, and to protect them from violence, insult, or disrespect. The t irms " willful disobedience," " lawful order," and " in the ex= ecution of his office" are used in the same sense as in the sixty-fourth article. Analysis and Proof. The article applies to enlisted men only. The article embraces offenses indicated by the following diagram: Any soldier who Strikes or Assaults or Attempts 1 [ Strike or \ to I or Threatens ] { Assault or Willfully disobeys the lawful order of or Tlireatening language or Insulting language A noncommissioned officer while in the execution of his office. or Behaves in an f Insubordinate manner or Disrespectfal manner Toward a noncommis- sioned officer while in the execution of his office. These offenses may be briefly treated under the following headings: I. Assaulting a noncommissioned officer. II. Disobe} r ing a noncommissioned officer. III. Using threating or insulting language or behaving in an. insubordinate or disrespectful manner toward a noncommissioned officer. 212 MANUAL FOR COURTS-MARTIAL. I. ASSAULTING A NONCOMISSIONED OFFICER. For definition of the offense, see ninety-third article, item IX. The part of the article relating to assaults covers any unlawful violence against a noncommissi med officer in the execution of his office, whether such violence is merely threatened or is advanced in any degree toward actual application. () That during the disorder a certain officer or noncommissioned • !• ordered the accused into arrest I is an officer) or info arrest or confin< ed is a person subject to military law other than an officer), with a view to quell or part the disorder. That the accused refused to obey. H, ill. IV. Till ; A WEAPON I PON, OB OFFERING VIO- The proof of the second, third, and fourth crimes defined by the article should follow in form and essentials the proof required under the first crime (disobedience of order into arresl or confinement, gupra), except that in-trad of proving a refusal to obey (par. 3, apon, making a threat, or doing violence musl be proved as the consummation of the particular offense. The ed includ • nacing action, either by gesture or I y 218 MANUAL FOR COUK'I 'S- M Alt 1 I Al.. S» iiu.N IV— Abbbstj Confinement. SIXTY-NINTH ARTICLE. 420. An officer charged with crime or with ;i serious offense cinder these arti- cles shall be placed In arresl by the commanding offl< «r, and in exceptional oases an officer so charged may be placed In confinement by the same authority, A soldier charged with crime or with b serious offense under these articles shall be placed In confinement, and when charged with a minor offense he may tx placed in arrest. Aia Other person Subject to military law charged With crime or with a serious offense under these articles shall he placed in confine- ment or in aire-:, as circumstances may require; and when charged with a minor offense such person may be placed in arrest Any person placed In ar- rest under the provisions of this article shall thereby be restricted to his bar- racks, quarters, or tent, unless such limits shall be enlarged by proper authority. Any officer who breaks his arrest or who escapes from Confinement before he 19 Bet at liberty by proper authority shall lie dismissed from the service or suffer such other punishment as a conn -martial may direct; and any oilier person suhject to military law who escapes from confinement or who breaks his arrest before he is set at liberty by proper authority shall he. punished as a court- martial may direct. DEFINITIONS AND PRINCIPLES. The arrest of an officer has been compared to an enlargement on bail, the security being the officer's commission. It is for this rea- son that the punishment may include dismissal. The distinction be- tween arrest and confinement lies in the difference between the kinds of restraint imposed. In arrest the restraint is moral restraint im- posed by the orders fixing the limits of arrest, or by the terms of the article. Confinement imports some physical restraint. Analysis and Proof. The article applies to all persons subject to military law. The article defines two crimes: I. Breach of arrest. II. Escape from confinement. I. BREACH OF ARREST. The offense is committed when the person restrained infrin| limits set by orders, or by the sixty-ninth article of war. and the intention or motive that actuated him is immaterial to the issue of guilt, though, of course, proof of inadvertence or bona fide mistake is admissible to guide the court in assessing punishment. The un- lawfulness of the arrest is a valid defense, but innocence of the ac- tion upon which the arresl is imposed is entirely irrelevant. PUNITIVE ARTICLES. 219 (a) That the accused was duly placed in arrest. (b) That before he was set at liberty by proper authority he trans- gressed the limits fixed by the sixty-ninth article of war or by the orders of proper authority. II. ESCAPE FROM CONFINEMENT. An escape may be either with or without force or artifice, and either with or without the consent of the custodian. Any com- pleted casting off of the restraint of confinement, before being set at liberty by proper authority, is an escape from confinement, and a lack of effectiveness of the physical restraint imposed is immaterial to the issue of guilt. It seems, however, that an escape is not com- plete until the prisoner has, momentarily at least, freed himself from the restraint of his confinement, so. if the movement toward escape is opposed, or before it is completed an immediate pursuit ensues, there will be no escape until opposition is overcome, or pursuit is shaken off. In cases where the escape is not completed the offense should be charged as an attempt under the ninety-sixth article of war. PROOF. (a) That the accused was placed in confinement. (b) That he freed himself from the restraint of his confinement before he had been set at liberty by proper authority. SEVENTY-FIRST ARTICLE. 421. No provost marshal or commander of a guard shall refuse to receive or keep nay prisoner committed to his charge by an officer belonging to the forces of the United States, provided the officer committing shall, at the time, deliver an account in writing, signed by himself, of the crime or offense charged against the prisoner. Any officer or soldier so refusing shall be punished as a court- martial may direct. Definitions and Pi;ixnn.:>. The words "commander of a guard"' include a commander of any rank or grade, and hence a noncommissioned officer or private. The term "any prisoner' 1 includes civil as well as military prisoners who are committed according to the terms of the article. A provost marshal or commander of a guard may receive a prisoner without an account of the charge against him or other due formality of com- mitment, but he must receive the prisoner where i lie required ac- count in writing accompanies the commitment. A mere name or description of the offense charged in common par- Lance when written and signed by the committing office] is a suffi- cient "account in writing." 220 MANUAL FOR COUBTS-MABTIAL, " Anai.yhs a\d Proof. The article applies to officer and soldi The article defines one crime : I. B] l USING TO RECEIVE OB B "' '■' A PRISONER COMMITTED WITH A WRITTEN ACCOUNT OF THE OFFENSE CHARGED AGAIN8T HIM SIGNED BY THE 01 in BR COMMITTING THE PRISONER. ili.it the accused was a provost marshal or commander of a guard. (M That a certain prisoner was committed to his charge by a in officer belonging to the forces of the United States. (c) That, at the time of commitment, the committing officer de- livered to the accused a written account of the crime or offense charged against the prisoner, Avhich account was signed by the committing officer. (d) That the accused refused to receive or keep the prisoner. SEVENTY-SECOND ARTICLE. 422. Every commander of a guard to whose charge a prisoner is committed shall, within twenty-four hours after such confinement, or as soon as he is re- lieved from his guard, report in writing to the commanding oflicer (lie name of such prisoner, the offense charged against him, and the name of the oflicer com- mitting him; and if he fails to make such report he shall be punished as a court-martial may direct. Definitions and Principles. The term " commander of a guard " includes commanders of any rank or grade. The term " prisoner " includes civilian as well as military prisoners. The term " commanding oflicer " imports the commander to whom the guard report is properly made. Analysis and Proof. The article applies to officers and soldiers. It defines one offense: 1. lAll.t RE TO RENDER A REPORT AS PRESCRIBED. (a) That the accused was commander of a certain guard. (A) That a prisoner was committed to his charge. (c) That the accused — 1. Failed to make any report at all. or, 2. That the report rendered was not in writing, or. PUXITIVE ARTICLES. 221 3. That no report was rendered within -24 hours after confinement) or as soon as accused was relieved from his guard, or, t. That the report failed to set forth one or more of the particulars prescribed. SEVENTY-THIRD ARTICLE. 423. Any person subject to military law who, without proper authority, re- any prisoner duly committed to his charge, or who through neglect <>r design suffers any prisoner bo committed to escape, shall be punished as a court- martial may d I >i : [nitions and PrinctpiiES. The article describes three long-recognized common-law crimes. It looks to the punishment of any person who is responsible for the unauthorized release 'or escape of a prisoner duly committed to his charge, and hence any member of a guard, party, escort, and convoy, or any person subject to military law to whose charge a >ner is committed may be guilty of an offense under this article. Where a prisoner is committed to the commander of a guard, party, rt, or convoy, and is released by, or escapes from, a subordinate or subordinates to whom the commander has duly delegated custody of the prisoner, or to whom that custody duly falls as an incident of duty, all will be responsible under this article, except those who can show that the escape or release occurred under nces hich they could not reasonably guard. The words "any prisoner"' import both military and civilian tiers. A person may receive a prisoner in his capacity as commander or I a guard, or he may be burdened with such a responsibility t. In the former case, the lowest authority compe- tent to release the prisoner is the chief of the command, of the guard hich the | held, in i!"' latter case, the authority who sed the trust, and who was competent to do so, is the lowest "proper authority" to order a release. While inder of the guard must receive n prisoner properly nutted by r the power of the committing officer ceases -in as he has committed the prisoner, and he is not a '"proper authority " to ord< r a release. ponsible under this article unless the prisoner 1 out in the discussion of the -i article, an officer may receive a prisoner not committed in strict compliance with the terms of that article or other law. and if. having so received ;i prisoner, he releases such prisoner, or suffers him t" escape, he may be held to answer, under the ninety-sixth article, for any dereliction of duty that may be predicated on his conduct in the I 222 MANUAL FOR COURTS-MARTIAL. Analysis and Proof. The article applies to any person subject to military law. The article defines three crimes: T. Releasing a prisoner without proper authority. II. Suffering a prisoner to escape through neglect. III. Suffering a prisoner to escape through design. T. RELEASING A PRISONER "WITHOUT PROPER AUTHORITY. A release imports a removal of restraint from the prisoner in which the custodian is the sole actor, and in which the prisoner takes no initiative. TROOF. (a) That a certain prisoner was duly committed to the charge of the accused. (b) That the accused released him without proper authority. II. SUFFERING A PRISONER TO ESCAPE THROUGH NEGLECT. The word "neglect'' is here used in the sense of the word "negli- gence." Xegligenee is a relative term. It is defined in law as the absence of due care. The legal standard of care is that which would have been taken by a reasonably prudent man in the same or similar circum- stances. This test looks to the standard required of persons acting in the capacity in which the accused was acting. Thus, if the accused is an officer, the test will be, "How would a reasonably prudent officer have acted?" If the circumstances were such as would have indicated to a reasonably prudent officer that a very high order of care was required to prevent escape, then the accused must be held to a very high order of care. The test is thus elastic, logical, and just. A prisoner can not be said to have escaped until he has overcome the opposition that restrained him, and shaken off immediate pur- suit. Once he has done these things, the fact that he returns, is taken in a fresh pursuit, is killed, or dies, will not relieve the person accused of guilt under this article. (a) That a certain prisoner was duly committed to the charge of the accused. (h) That the prisoner escaped. (e) Thai the accused did not take such care to prevent escape a a reasonably prudent person, acting in the capacity in which the PUNITIVE ARTICLES. 228 accused was acting, would have taken in the same or similar circum- stances. (This constitutes neglect.) (d) That the escape was the proximate result of the neglect of ;he accused. III. SUFFERING A PRISONER TO ESCAPE THROUGH DESIGN. In law a wrongful act is designed when it is intended or when it results from conduct so shockingly and grossly devoid of care as to leave room for no inference but that the act was contemplated as an extremely probable result of the course of conduct followed. Thus, on a charge of suffering a prisoner to escape through design, evidence of gross negligence may be received as probative of design. It sometimes happens that a prisoner has been permitted larger limits than should have been allowed, and an escape is consummated without hindrance. It does not at all follow that such an escape is to be considered as designed. The conduct of the responsible cus- todian is to be examined in the light of all the circumstances of the case, the heinousness of the crime with which the prisoner is charged, the notoriety of the prisoner's guilt, the probability of his return, and the intention and motives of the custodian. (a) That a certain prisoner was duly committed to the charge of the accused. (5) That the prisoner escaped. (c) 1. Acts of the accused tending to permit escape. . 2. Acts of the accused probative of a design to suffer the escape. (d) That as a result of these acts and of this design the prisoner escaped. SEVENTY-FOURTH ARTICLE. 424. When any person subject to military law, except one who is held by the military authorities to answer, or who is awaiting trial or result of trial, or who is undergoing sentence for a crime or offense punishable under these articles, Ls accused of a crime or offense committed within the geographical limits of the States of the Union and the District of Columbia, and punishable l.y the laws of the land, the commanding officer is required, except in time of war. upon application duly made, to use his utmost endeavor to deliver over Bach accused person to the civil authorities, or to aid the officers of justice in apprehending and securing him, in order that he may be brought to trial Any commanding officer who upon such application refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil au- thorities or to aid the officers of justice in apprehending and securing him shall be dismissed from the service or suffer such other punishment as a court- martial may direct. When, under the provisions of this article, delivery Is made to (he civil authorities of an offender undergoing sentence of a eonrt-martlal, such delivery, if followed by conviction, shall be held to interrupt the execution of the sen- 224 MANUAL FOR COURTS-MARTIAL. ten« i' the court-martial, and the offender ^hail be retained to military cus- tody, after having answered to the civil authorities for his offense, for the completion of the ^aii i iMiiiixs and Principles. I. REFUSING TO DELIVER ACCUSED PEBSONS. The words "commanding officer," as here used, import the officer who is chief of the complete integral place, body of troops, or de- tachment, wherein the person accused is serving at the time appli- ii is duly made. The words '"upon application duly made" ndition precedent to responsibility. They are inserted l > prevent the possibility of false arrests, and to enable the com- manding officer to satisfy himself of the true official character of him who makes the application, of the subsistence of an actual accu- sation against the person sought, and of the locus of the charged crime or offense. The commanding officer should require that the application show that the. crime or offense is alleged to have been committed within the geographical limits of the States of the Union and the District of Columbia. A sufficient form of application will be a written com- munication setting forth the fact of such an accusation of a crime unitted within the prescribed limits, as would subject the accused person to arrest by the civil authorities for the pur- -> of trial, or that a warrant for such arrest has issued, and a request that the commanding officer deliver the person accused to the civil authorities or assist them in apprehending or securing him. When the military jurisdiction has actively attached in any of the . 1 in the article, the commanding officer may, but he is d to make the prescribed delivery. AID IN APPREHENDING ACCUSED TERSONS. The commanding officer is required not only to deliver the person accused but to aid in apprehending and securing him. The article therefore contemplates cases where, after apprehension by either the military or civil authorities, an application is duly made to a commanding officer for his assistance in securing a person subject to military law and accused of crime. "Utmost endeavor" is to be understood in a reasonable sense with reference to the circumstances of the particular case. Thus, if the accused is not within military control, as where he is absent as a deserter, nothing more can be required of a commander than to fur- nish civil authority such information of his whereabouts and the prospect of his return as may be available. Wnile commanding officers are enjoined to use their utmost en- deavor in carrying out the provisions of this law, a mere inadvertent neglect to lake some necessary step toward delivery, apprehension, or securing of the person accused will not constitute an offense under this article, which contemplates onlj refusals and willful neglects to act. punitive articles. 225 Analysis and Proof. The punitive portion of the article applies only to officers, but the obligation to deliver or assist in apprehending and securing rests on all persons subject to military law. The article defines two offenses: I. Refusing or willfully neglecting to deliver an accused person. II. Refusing or willfully neglecting to aid in apprehending and securing an accused person. The essentials of proof are similar in both cases. (a) That the accused was the commanding officer of a certain integral place, body of troops, or detachment. (b) That a certain person under his command stood accused of a certain crime or offense, committed within the geographical limits of the States of the Union and the District of Columbia. (c) That application was duly made to the accused officer by a person in proper civil authority — 1. To deliver the accused person to the civil authorities; or 2. To aid the officers of justice in apprehending and securing, or either, the accused person. (d) Acts or omissions of the accused officer which constitute a refusal or a willful neglect to deliver the accused person or to aid in apprehending or securing him. Section V. WAR OFFENSES. SEVENTY-FIFTH ARTICLE. 425. Any officer or soldier who misbehaves himself before the enemy, runs away, or shamefully abandons or delivers up any fort, post, camp, guard, or other command which it is his duty to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, or by any means whatsoever occasions false alarms in camp, garrison, <>r quarters, Bhall suffer death or such other punishment as a court-martial may direct. Definitions and Principles. Misbehavior is by no means confined to acts of cowardice. It is a general term, and as here used it renders culpable under this cle any conduct by an officer or soldier not conformable to the lard of behavior before the enemy set by the history of our arms. Running away is bnt a particular form of misbehavior specifically made punishable by this article. 53915°— 18 1*3 226 MANUAL FOR COURTS- MARTIAL. "The enemy"' imports any hostile body that our forces may be opposing and well includes a rebellious mob, a band of renegades, or ■ tribe of India ANALT8I8 AND PbOOF. The article applies only to officers and soldiers. It defines seven offenses : T. Misbehavior before the en IT. Running away before the enemy. III. Shamefully abandoning or delivering up any command. IV. Speaking words inducing others to misbehave, run away, or abandon or deliver up any command. V. Casting away arms or ammunition. VI. Quitting post or colors to plunder or pillage. AMI. Occasioning false alarms. I. MISBEHAVIOR BEFORE TIIE ENEMY. Under this clause may be charged any act of treason, cowardice., insubordination, or other unsoldierly conduct committed in the pres- ence of the enemy. PBOOF. (a) That the accused was serving in the presence of an eneim-. (b) Acts or omissions of the accused not conformable to the stand- ard of soldierly conduct set by the history of our arms. n. RUNNING AWAY BEFORE THE ENEMY. (a) That the accused was serving in the presence of an enemy. (b) That he misbehaved himself by running away. III. SHAMEFULLY ABANDONING OR DELIVERING UP ANY COMMAND. While the word "abandon" is broad enough to include a case in which a soldier or a subordinate officer leaves a fort, post, guard, or command which it is his duty to defend, it is probable that this clause of the article looks only to offenses by the commanding officers of such commands, and that abandonment by a subordinate should be charged as misbehavior or running away. The words "deliver up" arc synonymous with the word "sur- render." The surrender or abandonment of a command by an officer charged with its defense can only be justified by the utmost necessity and extremity, such as the exhaustion of provisions or water, the ab- sence of hope of relief, and the certainty or extreme probability PUNITIVE ARTICLES. 227 that no further effort could prevent the place, with its garrison, their arms, and magazines, from presently falling into the hands ol the enemy. Unless such absolute necessity is shown, the conclusion must be that the surrender or abandonment was shameful within the meaning of this article. An officer's duty to defend may be imposed by orders or by the circumstances in which he finds himself at a particular stage of operations; but an officer will find less justification in abandoning a post that he has been ordered to defend than in abandoning one that he has decided to defend. He will have less justification in deliver- ing up a post than in abandoning it, and in delivering up a post that he has been ordered to defend he will have no justification at all except such as can be found in proof that no further resistance was possible. (a) That the accused was charged by orders or by circumstances with a duty to defend a certain fort, post, camp, guard, or other command. (b) That without justification he abandoned it or surrendered it. IV. SPEAKING WORDS INDUCING OTHERS TO MISBEHAVE, RUN AWAY, OR TO ABANDON OR DELIVER UP ANY COMMAND. The words "to do the like" refer to the offenses of misbehavior and running away, as well as to abandoning or delivering up a command. The inducement contemplated is verbal only, but it may include any argument, persuasion, threat, language of discouragement or alarm, or false or incorrect statement which may avail to bring about an unnecessary surrender, retreat, or any misbehavior before the enemy. The offense will not be complete, however, unless the words spoken do induce some person other than the accused to misbehave, run away, or abandon or surrender a command. . It is to be noted, however, that speaking words whose natural tendency is to induce others to do anj r of these things may in itself constitute misbehavior of the speaker within the meaning of the article, although the words spoken induce no misconduct on the part of others. (a) That some person other than the accused misbehaved in the presence of the enemy or ran away or abandoned or delivered up any command which it was his duty to defend. (b) Words spoken by the accused which induced such action. 228 MANUAL FOR COURTS-MARTIAL. V. CASTING AWAY ARMS OB AMMUNITION. (a) That the accused cast away certain arms or ammunition as ified. VI. QUITTING POST OR COLORS TO PLUNDER OR PILLAGE. The word " post" includes any place of duty, whether permanently or temporarily fixed. The term "colors" was used to include cases where the offender's organization is moving, but the words "quits his post," as here used, import any unauthorized leaving of that place where the accused should be. In proving this crime an intent to pillage or plunder must be shown. The words " to pillage or plunder" may be properly para- phrased " to seize and appropriate public or private property." The offense is do less committed, though the quitting is by quasi authority, as where soldiers quit the place where they should be to go forth and maraud in company with an officer or noncommissioned officer. The act is complete when the accused has left his post with the described intent, although he may never have consummated his design. PROOF. (a) That the accused left his post of duty. (b) That the intention of the accused in leaving was to seize and appropriate private or public property. VII. OCCASIONING FALSE ALARMS. The article is intended as well to guard the repose and tranquillity of troops as to avoid the ill effect on morale which must inevitably follow needless excursions and alarms. The article contemplates the spreading of false and disturbing rumors and reports as well as the needless giving of such alarm signals as the beating of drums and the blowing of trumpets. The intent is immaterial. If the alai m was given, and it appears that there was no material cause or occasion which should reasonably justify a general alarm, the offense is complete. (a) That an alarm was occasioned in a certain camp, garrison, or quarters. (b) Conduct of the accused which occasioned the alarm. (c) That there was no reasonable or sufficient justification in fact for occasioning the alarm. PUNITIVE ARTICLES. 229 SEVENTY-SIXTII ARTICLE. 426. If any commander of any garrison, fort, post, camp, guard, or other com- mand Is compelled, by the officers or soldiers under his command, to give it up to the enemy or to abandon It, the officers or soldiers so offeudiug shall suffer death or such other punishment as a court-martial may direct. Definitions and Principles. When the surrender or abandonment of a command is induced by words spoken, the offense should be charged under the seventy- fifth article. Where the surrender or abandonment is compelled by acts rather than words, the charge should be laid under the present article. The offense here contemplated is very like that of a mutiny which results in the surrender or abandonment of any command, but, unlike mutiny, no concert of action is an essential element of this offense. The offense is not complete until the command is abandoned or given up to the enemy. The compulsion need not consist in the use of actual violence or force. A refusal to obey orders or to do duty or to participate in measures of defense would be as effective compul- sion as if forcible restraint were resorted to. Analysis and Proof. The article applies to officers and soldiers. The article defines one crime. i. subordinates compelling commander to surrender. (a) That a certain commander has abandoned his command or given it up to the enemy. (b) That the accused was under the command of this commander. ( Proof.- The article applies to any person subject to military law. It defines two offenses: I. Making known the parole or countersign. II. Giving a parole or countersign different from that received. I. MAKING KNOWN THE PAEOLE OK COUNTERSIGN. The class of persons entitled to receive the countersign will expand and contract under the varying circumstances of war. Who these persons are will be determined largely, in any particular case, by the general or special orders under which the accused was acting. It is no defense under the terms of this law that the accused did not know that the person to whom he communicated the countersign or parole was not entitled to receive it. Before imparting such a word it behooves a person subject to military law to determine at his peril that the person to whom he presumes to make known the word is a person authorized to receive it. The intent or motive that actuated the accused is immaterial to the issue of guilt, as would also be the circumstance that the imparting was negligent or inadvertent. It is likewise immaterial whether the accused had himself received the password in the regular course of duty or whether he obtained it in some other way. (a) That the accused made known the countersign or parole to a certain person, known or unknown. (b) That the person was not entitled to receive it. II. GIVING A PAROLE OR COUNTERSIGN DIFFERENT FROM THAT RECEIVED. The intent or motive that actuated the accused is immaterial to the issue of guilt. PROOF. (#) That the accused received a certain countersign or parole. (b) That he gave a parole or countersign different from that which he received. SEVENTY-EIGHTH ARTICLE. 428. Any person subject to military law who, In time of war, forces a safe- guard shall sutler death or such other punishment as a court-martial may direct* PUNITIVE ARTICLES. 231 Definitions and Principles. A safeguard is a detachment, guard, or detail posted by a com- mander for the purpose of protecting some person or persons, place, or property. The term also imports a written order left by a com- mander with an enemy subject or posted upon enemy property for the protection of the individual or property concerned. Any trespass on the protection of the safeguard will constitute an offense under the article, provided that the accused was aware of the existence of the safeguard. Analysis and Proof. The article applies to all persons subject to military law. It defines one offense : I. FORCING A SAFEGUARD. (a) That a safeguard had been issued or posted for the protection of a certain person or persons, place, or property. (I/) That, with knowledge of the safeguard, or under circum- stances that charged him with notice of the safeguard, the accused trespassed upon its protection. SEVENTY-NINTH ARTICLE. 429. All public property taken from the enemy is the property of the United States and shall be secured for the service of the United States, and any person subject to military law who neglects to secure such property or is guilty of wrongful appropriation thereof shall be punished as a court-martial may direct. Definitions and Principles. Immediately upon its capture from the enemy public property becomes the property of the United States. Neither the individual who takes it nor any other person has any private right in such property. On the contrary, every person subject to military law has an immediate duty to take such steps as are within his powers and functions to secure such property to the service of the United States and to protect it from destruction or loss. Analysis and Proof. The article applies to all persons subject to military law. See A. W. 2. It defines two offenses : I. Neglecting to secure captured public property. II. Wrongful appropriation of captured public property. 232 MANUAL FOR COURTS- MARTIAL. T. NEGLECTING TO SECURE CAPTURED PUBLIC PROPERTY. The neglect will consist in a failure to take such steps as a reason- ably prudent man acting in the capacity in which accused was acting would have taken in the same or similar circumstances to secure the property in question to the service of the United States. (a) That certain public property was captured from the enemy. (b) That the functions of the accused vested him with a certain power and imposed on him a certain duty to secure such property to the service of the United States. (c) Acts or omissions of the accused which evidence a failure to take such steps to secure the property to the service of the United States as would have been taken by a reasonably prudent person acting in the capacity in which the accused was acting and in the same or similar circumstances. II. WRONGFUL APPROPRIATION OF CAPTURED PUBLIC PROPERTY. Any unauthorized and unjustified act in disposition of property which is inconsistent with the true owner's right of complete domin- ion over it is a wrongful appropriation of it. A wrongful appropria- tion is distinguished from a neglect in that it presumes some act while a neglect may consist solely in an omission. (a) That certain public property was captured from the enemy. (b) Acts of the accused in disposition of the captured public prop- erty, inconsistent with the United States right of complete dominion over that property. EIGHTIETH ARTICLE. 430. Any person subject to military law who buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he shall receive or expect any profit, benefit, or advantage to himself or t«> any other per- son directly or indirectly connected with himself, or who fails, whenever such property comes into his possession or custody or within his control to give notice thereof to the proper authority and to turn over such property to the proper authority without delay, shall, on conviction thereof, be punished by tine or imprisonment, or by such other punishment as a court-martial, military com- mission, or other military tribunal may adjudge, or by any or all of said penalties. Definitions and Principles. This article is broader than the preceding one in the following particulars: It protects abandoned as well as captured property and private as well as public captured or abandoned property. PUNITIVE ARTICLES. 233 Unless the captured or abandoned property is private, or unless the acts charged fall within the descriptions of this article, the offense should be charged under article 79, supra. Analysis and Proof. The article applies to all persons subject to military law. See A. W. 2. It defines a number of offenses which may be treated as follows: I. Any dealing in or disposition of captured or abandoned property whereby the accused receives or expects to receive an advantage. II. Failure or delay in reporting the receipt of and in turning over to proper authority captured or abandoned property. I. DEALING IN CAPTURED OR ABANDONED PROPERTY. This portion of the article addresses itself to several specific acts of wrongful dealings and looks especially to cases where, in- stead of appropriating the property to his own use in kind, the accused in any other way deals with it to advantage. The article prohibits receipt as well as disposition of captured or abandoned property by barter, gift, pledge, lease, or loan. It lies against the destruction or abandonment of such property if any of these acts are done in the receipt or expectation of profit, benefit, or advantage to the actor or to any other person directly or indirectly connected with himself. The expectation of profit need not be founded on contract ; it is enough if the prohibited act be done for the purpose, or in the hope, of benefit or advantage, pecuniary or otherwise. (a) That the accused has disposed of, dealt in, received, etc., cer- tain public or private captured or abandoned property. (b) That by so doing the accused received or expected some profit or advantage to himself or to a certain person connected in a certain manner with himself. II. FAILURE OK DELAY IN REPORTING Till". RECEIPT OF CAPTURED OR ABAN- DONED PROPERTY. Proper authority is any authority competent to order the disposi- tion of the property' in question, and the required report should be direct or through such channels as the customs and rules of the service prescribe. FROor. (a) That certain captured or abandoned property came into the possession, custody, or control of the accused. 23-4 MANUAL FOR COURTS-MARTIAL. (b) Acts or omissions of the accused which evidence his failure in reporting the receipt of, and in turning over without delay, such property to proper authority. EIGHTY-FIRST ARTICLE. 431. Who my with arms, ammunition, supplies, money, or oilier thing, or know Lnglj protects or holds correspondence with or gives Lntellij Lther directly or Indirectly, shall suffer death, or such other punlshmenl as a conrt-martia] <»r military commission may dh Definitions and Pbin< d u Enemy" imports enemy citizens as well as soldiers and does not restrict itself to the enemy government or its army. All the citi- zens of one belligerent are enemies of the Government and of all the citizens of the other. Analysis and Proof. This article describes, in nearly every phrase, an overt act of on, The word whosoever, as it is here used, subjects to the juris- diction of courts-martial and military commissions all persons, either military or civil, who, in the theater of operations and during the continuance of war traffic with the enemy in any of the ways herein denouix ; armies <>t' the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, Definitions and Principles. See below. Analysis and Proof. The words " any person " bring within the jurisdiction of courts- martial and military commissions all persons of whatever nationality or civil status who may be accused of the offense denounced by the article. The article defines one crime — being a spy. I. BEING A SPY. The principal characteristic of this offense is a clandestine dissimu- lation of the true object sought, which object is an endeavor to obtain information with the intention of communicating it to the hostile party. Thus, soldiers not wearing disguise, dispatch riders, whether sol- diers or civilians, and persons in aircraft who carry out their mis- sions openly and who have penetrated hostile lines are not to be considered spies, for the reason that, while they may have resorted to concealment, they have practiced no dissimulation. It is necessary to prove an intent to communicate information to the hostile party. This intent will very readily be presumed on proof of a deceptive insinuation of the accused among our forces, but this presumption may be rebutted by very clear evidence that the on had come within the lines for a comparatively innocent pur- pose, as to visit his family or that he has assumed a disguise to enable him to reach his own lines. It is not essential that the accused obtain the information sought or that he communicate it. The offense is complete with the lurking or dissimulation with intent to accomplish these objects. An act of espionage completed by the escape of the accused to his own lines can not be the subject of trial if the quondam spy is later captured. A person living in occupied territory who. without dissimulation, merely reports what he sees or what he hear- through agents to the PUNITIVE ARTICLES. 237 enemy mav be charged under the preceding article with communi- cating or giving intelligence to the enemy, but he may not be charged under this article with being a spy. (a) That the accused was found at a certain place within our lines, acting clandestinely, or under false pretenses. (b) That he was obtaining, or endeavoring to obtain, information with intent to communicate the same to the enemy. Section VI. MISCELLANEOUS CRIMES AND OFFENSES. EIGHTY-THIRD ARTICLE. 433. Any person subject to military law who willfully, or through neglect, Buffers to be lost, spoiled, damaged, or wrongfully disposed of, any military property belonging t" the United States shall make good the loss or damage fer such punishment as a court-martial may direct. Definitions and Principles. The -loss, etc., may be said to be willfully suffered when the accused knowing the loss, etc., to be imminent or actually going on, takes no steps to prevent it, as where a sentinel seeing a small and readily extmguishable fire in a stack of hay on his post allows it to burn up. A suffering through neglect implies an omission to take such meas- ures as were appropriate under the circumstances to prevent a probable loss, damage, etc. The willful or neglectful sufferance specified by the article may 1st in a deliberate violation or positive disregard of some specific injunction of law, regulations, or orders; or it may be evidenced by such circumstances as a reckless or unwarranted personal use of the property; causing or allowing it to remain exposed to the weather, insecurely housed or not guarded; permitting it to be consumed, wasted, or injured by other persons; loaning it to an irresponsible person by wdiom it is damaged, etc. (Winthrop, p. 862.) Analysis and Proof. The article applies to any one .subject to military law. See article 2. The article embraces eight offenses, indicated by the following liagram : Any mill £bM~y 1 military f , or , \ law who j Through neglect j Lost, Spoiled, Damaged, or Wrongfully die] erty be- longing to the United States. 238 MANUAL FOB COUBTS-MAETTAL. offenses may be briefly treated under the heading " Suffering military property t<» !'(• lost, etc. " I. SUFFERING BIILITAItY PROPERTY TO BE LOST, ETC. (< i That certain military property was lost, spoiled, damaged, or wrongfully disposed of in the manner alleged. (M That such loss, spoiling, damage, or wrongful disposition was suffered by the accused through a certain omission of duty on his part. (c) That such omission was willful, or negligent, as alleged. (d) The value of the property, as all. EIGHTY-FOURTH ARTICLE. 434. Any soldier who sells or wrongfully disposes of or willfully or through neglect, injures or loses any horse, arms, ammunition, aeeouterments, equip- . clothing, or other property Issued for use in the military service, shall be punished as a court-marl ial may direct. Definitions and Principlks. See definitions under A. W. 80, pages 232, 233. Aeeouterments applies in the military sense to those parts of the soldier's equipment which are issued by the Ordnance Depart- ment * * * in connection with his arms and ammunition, si for example, as belts and cartridge pouches. (Digest, p. lOS-i.) Clothing includes all articles of clothing whether issued under s clothing allowance or otherwise, for example, overcoats and sweater? as now issued are articles of clothing. That the property sold, dis- posed of, lost, or injured was issued to someone other than the ac- cused is immaterial ; the article applies to any property issued for use in the military service. Analysis and Proof. This article applies to enlisted men only. The article defines a number of offenses, indicated by the following diagram: Sells or Wrongfully disposes of Any soldier win. or Willfully ' Injures or or Through neglect Any Horse, Arms, Ammunition, Accoutei Equipment, CI. .tiling, or other property Issued for use in the military service. PUNITIVE ARTICLES. 239 These offenses may be treated under the following heads: I. Selling or wrongfully disposing of military property. II. Willfully or through neglect injuring or losing military property. I. SELLING OR WRONGFULLY DISPOSING OF MILITARY PBQPERTY. See matter under A. W. 80, Item I. (a) That the accused soldier sold or otherwise disposed of cer- tain property in the manner alleged. (b) That such disposition was wrongful. (c) That the property was issued for use in the military service. (d) The value of the property as alleged. n. WILLFULLY OR THROUGH NEGLECT INJURING OR LOSING MILITARY PROPERTY. A wtUftiZ injury or loss is one that is intentionally occasioned. A loss or injury is occasioned through neglect when it is the result of a want of such attention to the nature or probable consequences of an act or omission as was appropriate under the circumstances. Accouterments applies in the military sense to those parts of the soldier's equipment which are issued by the Ordnance Depart- ment in connection with his arms and ammunition, such for example as belts and cartridge pouches. (Digest, p. 1084.) \mg includes oil articles of clothing, whether issued under a clothing allowance or otherwise; for example, overcoats and sweaters as now issued are articles of clothing. That the property sold, disposed of, lost, or injured was issued to some one other than the accused is immaterial; the article applies to any property issued for use in the miiitarv service. That certain property was injured in a certain way or lost, as alleged. ( b ) That such property was issued for use in the military service. (c) That such injury or loss was willfully caused by the accused in a certain manner, as alleged; or that such injury or loss was the result of certain neglect on the part of the accused. (d) The value of the property, as alleged. EIGHTY-FIFTH ARTICLE. 435. Any officer who is found drunk on duty shall, if iho offense be committed In time of war, he dismissed from the service and Buffer bui b other punishment as a court-martial may direct: and if the offense be committed in time of peace, 240 MANUAL FOR C< TKTS MARTIAL. he shall be punished as :i court-martial may direct. Any person subject to mili- tary law, except an officer, who is found drunk on duty shall be punished as a court-martial may direct I h finitions and Pw n< rpi bs. The article does not require that the accused shall have become (hunk, but that he shall have been found, i. e., discovered or per- ceived, to be drunk, when on duty, and it does not therefore neces- sarily follow that his drunkenness shall have commenced after the duty has been entered upon. To permit an officer or soldier, when tted, to go upon any duty of importance, while in general in- volving an injustice to the individual, is also a reprehensible act and o military offense in the superior who knowingly suffers it. But the fact that he was already intoxicated can not render the party himself any the less legally liable under the article, if, after having entered upon the duty, his intoxication continues and his condition is de- tected. But, on the other hand, a soldier (or officer), is not " found" drunk in the sense of the article, if he is simply discovered to be drunk when ordered, or otherwise required, to go upon the duty, upon which, because of his condition, he does not enter at all. (Winthrop, pp. 9M, 945.) Whether the drunkenness was caused by Liquor or drugs is imma- terial, but where the sole cause was a liquor or drug duly prescribed by a medical officer of the Army or a civil physician and taken in good faith according to the prescription no offense is committed. The fact that the accused, owing to an unsuspected susceptibility, permanent or temporary, was made drunk by indulging in a very small amount of intoxicant is not a defense. Any intoxication which is sufficient to sensibly impair the rational and full exercise of the mental and physical faculties is drunkenness within the meaning of the article. (Digest, p. 540.) Where the accused is charged under this article, a conviction under the general article of being under the influence of liquor is wholly inconsistent if he was found in such condition while on duty. The le requires no particular degree of drunkenness, and if the ac- m. ed was found so far under the influence of liquor as to be punish- able at all he was found drunk on duty within the meaning of this article. The term '•duty '" as used in this article, means of course military duty. But — it is important to note — every duty which an officer or soldier is legally required, by superior military authority, to execute, and for the proper execution of which he is answerable to such au- thority, is ; . a military duty. (Winthrop, p. 049.) PUNITIVE 241 The words "on duly." as used in this article, have also received an authoritative interpretation. As applied to the commanding officer of a post, or oi' an organization, or detachment in the field, the senior officer present, in the actual exercise of command, is constantly on duty; the term being here used in contradistinction to "on leave." In the rase of other officers, or of enlisted men, the term " on duty " has been held to relate to the performance of duties of routine or detail, in garrison or in the field; the words "off duty."' in respect to such persons, relating to such periods or occasions when, no duty being required of them by orders or regulations, officers and men are said to occupy that status of leisure known to the service as being "off dm v.- (Davis, p. 408.) In time of war and in a region of active hostilities the circum- stances are often such that all members of a command may properly be considered as being continuously on duty within the meaning of this article. A medical officer of a post, where there are constantly sick persons under his charge who may at any moment require his attendance, may, generally speaking, be deemed to be " on duty " in the sense of the article during the whole day and not merely during the hours regularly occupied by sick call, visiting the sick, or attending hos- pital. If found drunk at any other hour lie may in general be charged with an offense under this article. (Digest, p. 127. 1 So, also, an officer of the day and members of the guard are on duty during their entire tour within the meaning of this article, but a sentinel found drunk on post is chargeable under the next suc- ceeding article. The article also applies to cases where the duty being performed is merely a preliminary one, such as a reporting for inspection by a soldier designated for guard or a reporting under orders for duty at a post to the commanding officer. The offense of a person who absents himself from his duty and is found drunk while so absent, or wdio is relieved from duty at a post and ordered to remain there to await orders, and is found drunk during such status, is not chargeable under this article. An UiYSiS ami Proof. This article applies to any person subject to military law. See artic] The article defi] flense, namely, being found drunk on duty. I. BEING FOUND DRUNK ON DUTY. (a) That the accused was on a certain duty, as all ged. (M That he was found drunk while on BUCb duty. — 17 242 MANUAL FOE COURTS-MARTIAL. EIGHTY-SIXTH ARTICLE. 436. Any sentinel who i> found drunk or sleeping upon lii-< post, or who leaves it before he Is regularly relieved, shall, If the offense be committed in time of war. suffer death or such other punlshmenl as a court-martial may direct; and offense be committed In time of peace, be shall Buffer any punishment, except death, that a court-martial may direct Definitions and Principles. As to drunkenness, see matter under eighty-fifth article page 240. The term " sentinel " does not include a watchmcun. A sentinel is on post within the meaning of this article not only when he is walking a duly designated sentinel's post, as is ordinarily the case in garrison, but also "when be may be stationed in observa- tion against the approach of an enemy, or on post to maintain in- ternal discipline, or to guard stores, or to guard prisoners while in confinement or at work."' (Digest, p. 128.) The fact that the sentinel was not posted in the regular way is not a defense. Analysis and Proof. The article applies only to sentinels. The article defines three offenses, namely: I. Being found drunk on post. II. Being found sleeping on post. III. Leaving post before being relieved. T. BEING FOUND DRUNK ON POST. As to drunkenness, see matter under eighty-fifth article, page 240. PKOOF. (a) That the accused soldier was posted as a sentinel on a certain post, as alleged. (0) That he was found drunk while on such post. II. IJEING FOUND SLEEPING ON FOST. The fact that the accused had been previously overtaxed by exces- sive guard duty is not a defense, although evidence to that effect may be recei , ed in extenuation of the offense. (a) That the accused soldier was posted as a sentinel on a certain - alleged. ( h ) That he was found sleeping while on such post. III. LEAVING FOST BEFORE BEING RELIEVED. The offense of leaving post is not committed when a sentinel goes an immaterial distance from the point, path, area, or object which was presci Lbed as his post. PUNITIVE ARTICLES. 243 ('MTl .M.S. ETC. The interest need not be a direct interest, such as that attaching tc a partnership, or part ownership, of the articles introduced for but may be one of an indirect or contingent character, is, for in stance, an interest arising from an agreement or mutual understand- 244 MANUAL FOR 00TJBTS-MABT1AL, bag between the officer and the owner of the supplies that the former shall receive a percentage on the Bales, <>r a commission on all profits above a certain sum, or some present of money or goods in return for bis sanction of the speculation or promotion of the business. (Win- throp, p. STO.) Thus a commanding officer commits this offense when he agrees with a peddler to exclude others in consideration of -Mine advantage to himself. A commanding officer might become interested in the sale of ar- ticles by the post exchange within the meaning of this article. (a) That the accused officer was in command of a certain place where troops of the United States were serving, as alleged. (b) That he became pecuniarily interested in a certain way in the sale of certain victuals or other necessaries of life to such troops, as alleged. (c) That he so became interested for his own private advantage. EIGHTY-EIGHTH ARTICLE. 438. Any person subject to military law who abuses, intimidates, (iocs violence to, or wrongfully interferes with any person bringing provisions, supplies, or other necessaries t Proof. This article applies to any person subject to military law. The article defines a number of offenses which may be briefly treated under one head, as follows: PUNITIVE LRTK 245 I, INTIMIDATING, DOING VIOl •• OH WRONGFULLY INTBBPBBING WITH PEB80N8 I RI2 (a) That a certain person named or described was bringing pro- visions, supplies, or other necessaries to a certain camp, garrison, or quarters of the forces of the United States, as alleged. (h) That the accused abused, intimidated, did violence to, or wrongfully interfered with such person while so engaged and in the manner alleged. EIGHTY-NINTH ARTICLE. 439. All persons subject to military law are to behave themselves orderly in quarters, garrison, camp, and on the march; and any person subject to military hiw who commits any waste or spoil, or willfully destroys any property what- r (unless by order of his commanding officer), or commits any kind of depredation or riot shall be punished as a court-martial may direct. Any commanding officer who, upon complaint made to him, refuses or omits to see reparation made to the party Injured, in so far as the offender's pay shall go toward such reparation, as provided for in article one hundred and live, shall be dismissed from the service, or otherwise punished, as a court-martial may direct Definitions and Principles. See the terms of the article and the definitions under the respective offenses as given below. Analysis and Proof. This article divides itself into two parts, one embracing all persons subject to military law. and the other commanding officers only. The article defines a number of offenses which may be briefly treated under the following headings: I. Committing any waste or spoil. IT. Willfully destroying property. III. Committing depredation or riot IV. Refusing or omitting to see reparation made. I. COMMTTTINO ANY WASTE OB SPOIL. The ten " or " spoil " as used in this article refer to such arts of voluntary destruction of or permanent damage to real prop- erty as burning down buildings, tearing down fences, cutting down shade or fruit trees, and the like. psoor. (a) That the accused bring with a certain command in quarters, camp, garrison, or on th ommitted waste or spoil on certain property in the manner allege. I. {b) That such aets were not ordered by his commanding officer. ! 2-46 1LLNTAL rOl C0UET8- 11. WIM i I I.I V DBA R0PSRT1 . To be destroyed it is not accessary that the property be coni- ely demolished or annihilated. It is sufficient it* it is so fur injured as to be useless for the purpose for which it was intended. (a) That the accused being with a certain command in quarters, camp, garrison, or on the march, destroyed certain property, as alleged. (6) That such destruction was willful and was not ordered by his commanding officer. III. COMMITTING l'!.li:i.l'A'J 1< >X OK RIOT. The terms "any kind of depredation or riot," include plundering, pillaging, robbing, and any other willful damage to property not included in the preceding specific terms of the article. Injuries to persons are not made punishable by this article. (a) That the accused being with a certain command in quarters, camp, garrison, or on the march, committed certain acts of depreda- tion on certain property, or certain acts of rioting resulting in injury to certain property, as alleged. IV. REFUSING OR OMITTING TO SEE REPARATION MADE. Refusing to entertain a proper complaint at all; refusing or omit- ting to convene a board for the assessment of damage; or to act on such proceedings, or to direct the proper stoppages are instances of this oll'ense. (a) That the accused was the commanding officer of a certain com- mand in quarters, garrison, camp, or on the march, as alleged. (&) That a complaint was duly made to him by a certain | of damage to or loss of certain property occasioned by troops of the Muniand. as alleged, I That the accused either refused to see reparation made or omitted in the maimer alleged to see reparation made to the party injured in so far as the offender's pay would go toward such repara- tion. NINETIETH ARTICLE. 440. NO person subjecl t<> military law shall use any reproachful » provoking ties or gestures (<> another; and any person subject to military law who offends against Hi" provisions <»r this article shall be punished as a court- martiaJ dm; PUNITIVE ARTICLES. 247 Definitions and Principles. See the terms of the article. The article is intended to prevent what frequently are the first steps toward quarrels, fights, or serious offenses. Reproachful speeches and gestures are such as involve censorious comment on the actions or opinions of another. Provoking speeches and gestur.es are such as tend to exasperate or to arouse anger and resentment. Analysis and Proof. This article applies to any person subject to military law. The irticle defines offenses which may be treated under one heading, as follows : I. USING PROVOKING SPEECHES OR GESTURES. (a) That the accused used certain speeches or gestures to a certain person, as alleged. (b) That the speeches or gestures were reproachful or provoking. (c) That the person to whom such speeches or gestures were ad- dressed is in one of the classes of persons subject to military law. NINETY-FIRST ARTICLE. 441. Any person subject to military law who fights or promotes or is concerned In or connives at fighting a duel, or who having knowledge of a challenge sent or about to be. sent fails to report the fact promptly to the proper authority shall, if an officer, be dismissed from the service or suffer such other punish- ment as a court-martial may direct ; and if any other person subject to military law. shall suffer such punishment as a court-martial may direct. Definitions and Principles. See the terms of the article. A duel is a concerted fight between two persons with deadly weapons, the object of which is claimed to be the satisfaction of wounded honor. (Wharton, vol. 2, p. 555.) [Note.— The offenses made punishable by this article are of such infrequent occurrence that it is considered inadvisable to comment more fully upon them. In a case of doubt, works on military law should be consulted.] Analysis and Proof. This article applies to any person subject to military law. The article embraces a number of offenses which may be briefly treated under the following headil I. Fighting or promoting a duel. II. Being concerned in or conniving at fighting a duel. III. Failing to report knowledge of a challenge. 248 MANUAL FOB OOUETS-MABTIAL. l. ! oilTING OB PROMOTING A DI EL. 1- i irl i t i 1 1 *_r or promoting a duel would include such acts as the send- ing, giving, or accepting a challenge, or the carrying of a challenge or acceptance, the arrangement of the preliminaries, and, in general, any ad by which a duel is intentionally furthered, encouraged, or incited, whether the duel takes place or not. (a) That the accused fought a duel with a certain person as alleged, or that he promoted a duel between certain persons in the manner alleged. II. BEING CONCERNED IN OR CONNIVING AT FIGHTING A DUEL. Being concerned in or conniving at fighting a duel would include the being present thereat in some capacity other than a principal, as in the case of seconds and doctors. (a) That the accused was concerned in or connived at fighting a certain duel in the maimer alleged. DJ. FAILING TO REPORT KNOWLEDGE OF A CHALLENGE. A challenge is a written or verbal demand, request, or invitation to another to fight a duel. To constitute a challenge no particular form is necessary. It 'v enough if what was sent or about to be sent, considered in connec- tion with the circumstances, amounts to such a demand, request or invitation. However, an effort to provoke a challenge or an an- nouncement of a willingness to accept one is not a challenge. As to knowledge, see matter under fifty-fifth article. (a) That the accused knew that a certain challenge had been sent, or was about to be sent, as alleged. (&) That he either did not report the fact to the proper authority at all, or that he unnecessarily delayed making such report, as alleged. NINETY-SECOND ARTICLE. 442. Any person subject i<« military law who commits murder or rape shall Buffer death or Imprisonment for life, as a court-martial may direct; but no a si,;, ii i„. tried by court-martial for murder or rape committed within the geographical limits of the stales of the Union and the District <»f Columbia in time of peace. PUNITIVE AETICLES. 249 Definitions and Principles. See the terms of the article and the matter under the treatment of the several offenses defined therein. Analysis and Proof. The article applies to any person subject to military law. Sec article 2. The article defines two offenses, as follows: I. Murder. II. Rape. I. MURDER. Murder is the unlawful killing of a human being with malice aforethought. (Federal Penal Code, 1910, sec. 273.) " Unlawfully " as used in the definition of murder means without legal justification or excuse. A homicide done in the proper performance of a legal duty is justifiable. Thus, executing a person pursuant to a sentence of death ; killing in suppressing a mutiny or in preventing the escape of a prisoner where no other available means are adequate; killing an enemy in battle; and killing to prevent the commission of a felony attempted by force or surprise, such as murder, burglary, or arson, are cases of justifiable homicide. The right and duty of a sentinel over a prisoner in his charge in case of attempted escape is discussed in the Manual of Interior Guard Duty, 1914. This right and duty extends to other members of the guard whose duties include the safe-keeping of such prisoner. (Digest, 1912, p. 583.) The same principles apply to the arrest of a soldier by officers or soldiers authorized to make the particular arrest. A party of soldiers left their camp at night in time of war without leave contrary to positive orders and proceeded to a neighboring town, where they created a disturbance. Their commanding officer followed them, found them in a saloon, and was about to arrest them, when they broke from him, and knowing who he was disre- garded his order to halt and ran away from him. He repeated his order, and not being obeyed and having no other means of detaining them, fired upon them while fleeing with a pistol, and shot and killed one of them. Held, that he did not use undue force in endeavoring to maintain discipline and to arrest the offenders whom he was en- deavoring to return to their stations, and that he was not guilty of an offense requiring punishment, and that his conduct under the circum- stances in which he was placed was justified. (Digest, p. 480.) 250 MANUAL FOR COURTS MARTIAL. The general rule is that "The acts of a subordinate officer or sol- dier, in compliance with his supposed duly, or of superior orders, are justifiable, and lie will lie protected against the consequences, unless they are manifestly beyond the scope of his authority, and such that a man of ordinary sense and understanding would know to be illegal, where he acts in good faith and without malice." (Whar- ton on Homicide, 3d ed., p. 731.) The foregoing principles should not be construed as conferring immunity on an officer or soldier who willfully or through culpable negligence does acts endangering the lives of innocent third parties in the. discharge of his duiy t<> prevent esca'pe or effect an arrest But where a guard fired on a prisoner fleeing down a public street which was apparently clear, under circumstances that would have justified the homicide of the prisoner, and thereby accidentally killed a young woman whom he did not see at the time he shot, it was held that the homicide was excusable. A homicide which is the result of an accident or misadventure in doing a lawful act in a. lawful manner, or which, is done in self- defense on a sudden affray, is excusable. Thus, where a lawful operation, performed with due care and skill, causes the death of the patient, the homicide is excusable. To excuse a killing on the ground of self-defense upon a sudden affray, the killing must have been necessary to save the person's life or the lives of those whom he is bound to protect, or to prevent great bodily harm to himself or them. The danger must be believed on reasonable grounds to bo imminent, and no necessity will exist until the person, if not in his own house, has retreated as far as he safely can. The person doing the killing must not have been the aggressor and intentionally pro- voked the difficulty; but if he withdraws in good faith and his adversary follows and renews the fight, the latter becomes the sor. The death must take place within a year and a day of the act or omission that caused it, and the offense is committed at the place of such act or omission although the victim may have died elsewhere. Malice does not necessarily mean hatred or personal ill will to- ward the person killed, nor an actual intent to take his life, or even to take anyone's life. The use of the word "aforethought'' does not mean that the malice must exist for any particular time before com- mission of the aet. or that the intention to kill must have previously existed. It is sufficient that it exist at the time the act is committed. (Clark, pi-. 1ST. : Malice aforethought may exist, when (lie act is unpremeditated. It may mean any one or more of the following states of mind preceding or coexisting with the net or omission by which death is caused; (a) An intention to cause the death of, or grievous bodily harm to, any PUNITIVE \nl i 251 person, whether such person U n actually killed or not (ex- cept when death is inflicted in the heat of a sudden pa rased by adequate provocation) ; (M knowledge thai the act which ca tiie death will probaJ the death of, or grievous b -lily harm to, any person, whether such person is the person actually killed or not, although such I is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (>) intent to commit any felony (d) an intent to oppose, force to an officer of other person law- fully engaged in the duty of arresting, keeping in custody, or im- prisoning any poison, or the duty of keeping the peace, or dispersing an unlawful assembly, provided the offender has notice that the person killed is such officer or other person so employed. (Clark, p. 187.) PBOOF. (a) That the accused killed a certain person named or described by certain means, as alleged. This involves proof — (1) That the person alleged to have been killed is dead. (•2) That he died in consequence of an injury received by him. (3) That such injury was the result of the act of the accused. (4) That the death took place within a year and a day of such act. (M That such killing was with malice aforethought: that is. that the accused was in one or more of the states of mind described above, II. RAPE. Rape is the having of unlawful carnal knowledge of a woman by force and without her consent. As the carnal knowledge must be unlawfully had. a husband who has carnal knowledge of his wife forcibly where she does not con*< at is not guilty of this offense; but he is guilty wdien he assists another man in having such carnal knowledge. Any penetration, however slight, of the woman's genitals is suffi- cient carnal knowL dge, whether emission occurs or not. The offense may be committed on a female of any age, on a man's mistress, or on a common harlot. Force, actual or constructive, ami a want of consent are indis- pensable in rape, but the \\. <■<■<■ involved in the act of penetration is alone sufficient force where there is in fact no consent. i! consent to t ''Mm though such con- be obtained by fraud, there is no pap here a woman n with a physician on his false representation that tl„. .. ., is part ,.f the required treatment, or where a man successfully passes h mself "if t<. a woman as her husband and is admitted by her to connection as Mich, the "rime of LOt committed. "252 MANUAL FOB COURTS MARTIAL. There is no consent where the woman is bo idiotic as to be in- capable of consenting, and ;i man having c< onection with her not believing that he has her conseni is guilty of rape. So also where the woman is insensible, unconscious, or asleep, or where her apparent conseni was extorted by violence to her person or fear of sudden violence. A child under the age of 10 is presumed incapable of consenting. Men* verbal protestations and a pretense of resistance do not of course show a want of consent, but the contrary, and where a woman fails to take such measures to frustrate the execution of the man's design as she is able to and are called for by the circumstances the same conclusion may be drawn. It has been said of this offense that " it is true that rape is a most detestable crime * * * ; but it must be remembered that it is an accusation easy to be mad*', hard to be proved, but harder to be de- fended by the party accused, though innocent." (a) That the accused had carnal knowledge of a certain female, as alleged ; (b) That the act was done by force and without her consent; or that the female was under the age of 10 years. NINETY-THIRD ARTICLE. 443. Any person .subject to military law who commits manslaughter, mayhem, arson, burglary, robbery, larceny, embezzlement, perjury, assault with intent to commit any felony, or assault with intent to do bodily harm, shall be punished as a court-martial may direct. Definitions and Principles. See matter under several offenses listed in the article. Analysis and Proof. This article applies to any person' subject to military law. The article defines the following offenses, namely: I. Manslaughter. II. Mayhem. III. Arson. IV. Burglary. Y. Larceny. VI. Robbery. Yll. Embezzlement. VIII. Perjury. IX. A.ssauH with intent to commit any felony. X. Assault with intent to do bodily harm. PUNITIVE aim 253 I. BIANSLA1 i.ll l 1 B. daughter is unlawful homicide without malice aforethought and is either voluntary or involuntary. Voluntary manslaughter is where the act causing tin' death is committed in the heat of sudden passion caused by provocation. Involuntary manslaughter is homicide unintentionally can the commission of an unlawful act not amounting to a felony, nor likely to endanger life, or by culpable uegligence in performing a lawful act, or in performing an act required by law. (Clark, pp. L97, 204.) Id voluntary manslaughter the provocation must he such law deems adequate to excite uncontrollable passion in the mind of a reasonable man; the act must be committed under and because of the passion, and the provocation must not be sought or induced as an excuse for killing or doing bodily harm. (Clark, p. l!>7.) The killing may be manslaughter only even if intentional, but where sufficient cooling time elapses between the provocation and the blow the killing is murder, even if the passion persists. Instances of adequate provocation are: Assault and battery, indicting actual bodily harm or a gross insult; an unlawful imprisonment: and the sight by a husband of an act of adultery committed by hi- wife. If the person so assaulted or imprisoned, or the husband so situated at kills the offender or offenders in a heat of a sudden passion caused by their acts, manslaughter only has been committed. Instances of inadequate provocation are: Knowledge by the brother of a female of her seduction; insulting or abusive words or gestures; and injuries to property. In involuntary manslaughter in the commission of an unlaw ftil act the act must be malum in se and not merely malum prohibtiwn. Thus the driving of an automobile in slight excess of the speed limit fixed by ordinance is not the kind of unlawful act contemplated, but voluntarily engaging in an affray is such an act. To use an immod- erate amount of force in suppressing a mutiny is an unlawful act, and if death is caused thereby the one using such force i- guilty of manslaughter at Least. Instances of culpable uegligence in performing a lawful ad are: Negligently conducting target practice so that the bullets go in the direction of an inhabited house within range: pointing a pistol in fun at another and pulling the trigger, believing, but without tak- ing reasonable precautio certain, that it would not be dis- charged; carelessly Leaving poisons or dangerous drugs where they may endanger life. of culpable negligence in performing an act requi l aVl ape; i ., .• or inattention by those in charge of con- 254 MANUAL F01 trolling or operating trains in of their duties: culpable failure on the part of a parent to provide food, shelter, and medical attendance for his helpless child v\ here able to do so. Where there is qo legal duty to act there can, of course, be no lect. Thus where a stranger makes no effort to save a drowning man, or a person allows a mendicant to freeze or starve to death, no crime is committed. (a) See item (a) under "Proof of murder'- under ninety-second article. (6) The facts and circumstances of the case, as alleged, indicat- ing that the homicide amounted in law to manslaughter. II. MAYHEM. Mayhem at common law is " a hurt of any part of a man's body whereby he is rendered less aide, in fighting, either to defend himself or t<> annoy his adversary." (Bishop, vol. 2, p. 579.) The offense at common law did not include such injuries which merely disfigure, such as cutting off the nose or ear; but did include such injuries as knocking out a front tooth, or castration, which were supposed to weaken a man's fighting ability. The injury must be willfully and maliciously done, but need not be premeditated. If the hurt is done under circumstances which would excuse or justify a homicide, no offense is committed. A person inflicting such a hurt upon himself is guilty of this offense, and if another does it at his request, both are so guilty. ( pay a bill which he owes the clerk's employer, and the clerk, instead of putt] into lii- employ er's safe or other proper place, puts it into !>is < wn pocket ;,,,(! it, or hides it on the premise: and afterwards car- ries it off, he >loes not commit 1 money has not reached its destination, but is merely in transit, the master has not obtained possession, either actual or constructive. If, however, the PUNITIVE ARTICLES. 259 clerk puts the moneys in the safe, it is in his employer's constructive possession; and if he takes it out again and converts it, he is guilty of larceny. If it is not the duty of the clerk to put the money in the safe, but he is required to keep it on his person for his master, then, as soon as he received the money, it has readied its ultimate destination, and he will be guilty if he appropriates it, instead of holding it for his master. If a master gives his servant a check to take to the bank and get cashed he has mere custody of the check '. and commits larceny if he appropriates it; but if he cashes the check and appropriates the money he commits embezzlement only, as the money has never been in the master's possession. (Clark, pp. 285, 286.) Where the owner of an article delivers it to another, intending at the time an unconditional passing of the property as well as the possession, the other can not be guilty of larceny, whatever the in ducement employed b} 7 him. Thus where property is obtained from a dealer on the false pretense of being sent for it by a regular chi customer, or where property is bought on credit with no intention of paying, or where a bogus check is given in payment of goods or in exchange for money, or where money is borrowed on false pre- tenses with the understanding that different coins or bills are to be returned there is no larceny. In the case of property delivered by servants or agents, such delivery can not go beyond the actual or apparent authority of the ant or agent. So where a master sends his servant with a c. o. d. package, and the purchaser induces the servant to give him the package without payment or pays with a worthless check, intend- . ; keep the package, it is larceny. The reason for the rule above stated as to an intention to pass the property preventing the taking from amounting to larceny is that the consent of the owner precludes the existence of an essential element of larceny, viz, a trespass. But where the taking overlaps (he consent given it is pro tanto a trespass and where the other ele- ments of larceny are present, he who does the taking is guilty of the Thus where one gets candy from a slot machine by using rfeit coin, or where a customer after buying a cigar takes the whole box of matches provided by owner of the store for the use of hi -. the act in each case is a trespass, and the offenders . iilty of larceny if the other elements of that offense are present. :atioD of the rule that the consent must be as as the taking is ma owner's intent is to the property in the goods only when a condition is fulfilled. Thus re handed to a purchaser on sale the title is not inten ul the price is paid; and if the person re- 200 MA. a COUETS-MAM ' em runs of! with tlu goods without paying for them and with the required b guilty of larceny. This rule applies in many analagoi t is lar- ceny " for a man to whom money is handed to be changed to run off with it or keep it, 1 refuse to give th< though the intention may be that he" shall keep part of it as payment - a loan, for there is no consent to part with the money without receiving the ((lark and Marshal, p. In the £ conditional delivery (he recipient has only the ba ly and it is theref rial whether the in to steal existed at the time of the delivery, or was formed la1 The taking may be from any one having possession of the prop- erty; hence, property may be stolen from one who himself stolen it, and the owner of goods may steal them from a bailee with a sp( rty in them. One retains the constructive possession of property although it is actually out of his control until some one else takes possession, except in the case of abandoned property. So where a desk was sold and coins were afterwards found by the purchaser in a secret drawer and taken by him, he takes it from the possession of the owner. Where a person finds property he has a right to take it and examine it. If the circumstances give him no clue to the ownership he can rightfully appropriate it and this act or a subsequent refusal to give it up to the owner will not be a larceny, as there was no trespass in the taking. If the circumstances do give him such a clue he can right- fully assume possession for the owner and a subsequent change of intent and an appropriation of the property would not be a lar but where he intends to appropriate it at the time he assumes pos- >n he is guilty of larceny, and none the less so if he intends to return it in the event that a reward is • In larceny, as in other crimes, the evil intent and the act must it ; that is, as stated in the definition of larceny, the taking and removing by trespass must be with the particular intent described. But where the possession of property is obtained by a tresps subsequent retention of the property without right is a continuing . iss, and however innocent the original intent of the trespa . if while wrongfully retaining possession he has teal. Thus where an animal belonging to one person erd of another and is driven oil' by mis- v.lihout the know] ither person, there is a continuing tres] I' on discovering his mistake the owner of the herd i Is the animal to hi - <•••.. >, n e he is guilty of larceny. The felonious intent in >.. thai entertained by a thief: i. e., a fraudulent intent to deprive the owner permanently of his prop- erty in tii" good or of their value or a part of their value. Unless pi'm 261 -■ with the taking and carrying away by trespass committed where the taking was without any intent at the property, as in the cas iken accidentally; or where th<> intent was to take "tic's own pro] in the case of property taken und claim of right, however unfounded; or where the intent was to take anoi out of curi i, or to deprive him of th« power of using it. Thus if one takes len prop- . or takes nil iu order to prc\ iking a cudgel out of the owner's hand to prevent a beating there is no larcei Whether the required intent exists where property is taken to pawn up >n the circii: es of pledge would come within the above rule as to temp where the intent is in good faith to redeem and return it; but in the absence of such intent th( Win iv the taking is with the design of returning it to the owner. in the hope of obtaining a reward, it is not larceny; but if the v until a reward is offered it is. Tal with the intent to sell it back to the owner or return it to him for some other consideration is, of course, more indicative of than inconsistent with the existence of the required intent. Thus, ig a railroad ticket is none the less stealing because it was in- to ■■ railroad when made use of. goods are taken and removed with the felonious intent use is complete and is none the less a Ian y have had in mind without benefit or i ; t'. Thus, an in ive it to another or ' evi- dence or othei ; mself or anoth »t prevent tho dous taking of another's property from I ay. rinciple it has I that a servant who took his master's oats for the purpose of feeding them When a 1 ' commits by the arty or paym< at for it, is no amon law personal property only can be Tin it down o ! immedi I ay by him. there is no But should tli fter cut! in] i for '■ Fallen timber and relinquish his possession, 262 MANUAL VQB COUB 1 S-; MARTIAL. the posseesioi] of the owner attaches to the property in its new char- acter as personal property, and a subsequent taking by the trespasser with intent to steal is Larceny. At common law a piece of paper may be stolen, though its vali Less than that of the smallest coin: but if the paper is so written upon . \ Ldence of valid and subsisting agreement, it loses its value as a piece of paper and is no longer a subject of larceny. Thus, a promissory note, a bank note or a post-exchange check or other writing evidencing a chose in action is not a subject of : common law. But oited States Penal Code, chai this rule ke written instruments subject to theft and to their value as the amount of money due thereon. Many of the States atute have so changed the rule. {€. M. C. AT., No. 1.) PROOF. (a) The taking by the accused of the property as alleged. (b) The carrying* away by the accused of such prop, (c) That such property belonged to a certain other person named or described. ((f) That such property was of the value alleged, or of some \ a (e) The facts and circumstances of the case indicating that the taking and carrying away were by trespass and with a fraudulent intent to deprive the owner permanently of his property or interest in the goods or of their value or a part of their value. VI. ROBBERY. Robbery at common law is the taking, with intent to steal, of the mal property of another, from his person or in his violence or intimidation. (Clark, p. 323.) The felonious and forcible taking from the person of another goods or money to any value by violence or putting him in fear. (Bouvier's Law Dictionary, 13th ed., vol. 2, p. 601.) Robbery includes larceny and the elements of that offense must always be present. See matter under heading " V " under this article. Thus it is not robbery to take one's own property, unless the person from whom it is taken has a special property in the goods and the right to possession ; nor is it robbery to take property that is honestly believed to be one's own or to take it for a merely temporary use. It is not necessary that the person from whom the property is taken be the actual owner — it is enough if he have a possession or a tody that is good against the taker. The property must be taken from the person or in his pr but i ae presence it is that the owner be within any certain distance of his : it is enough if he be near in control of hi y. Thus where some persons red i hoof d the on oer by threats to disclose the hiding place of valuables in an adjoining room, and then, leaving the owner PUNITIVE ARTICLES. 263 tied, went into such room and stole the valuables their offense was held to be robbery. The taking must be against the owner's will by means of violence or intimidation. The violence or intimidation must precede or ac- company the taking. Thus where property is taken by stealth from the person of its owner it is not robbery in case the thief overcomes a forcible effort to retake it; or the owner is deterred by the threats of the thief from making an attempt to retake it. The violence must be actual violence to the person, but the amount of violence used is immaterial. It is enough where it overcomes the actual resistance of the person robbed, or puts him in such a posi- tion that he makes no resistance, or suffices to overcome the resistance offered by a chain or other fastening by which the article is at- tached to the person. Where an article is merely snatched out of another's hand or a pocket is picked by stealth and no other force is used and the owner is not put in fear, the offense is not robbery. But if in snatching the article resistance is overcome, there is sufficient violence, as where a woman's earring is torn from her ear or a hair ornament entangled in her hair is snatched away. So, also, when a person's attention is diverted by being jostled by a confederate of a pickpocket, who is thus enabled to steal the person's watch, it is a robbery. Other instances of robbery by violence are where a man is knocked insensible and his pockets rifled, and where an officer steals property from the person of a prisoner in his charge after hand- cuffing him on the pretext of preventing his escape. It is equally robbery whether the robber prevents resistance by rendering his victim physically incapable of making any, or by put- ting him, by threat or menaces, in such fear that he is warranted in making none. The fear must be a reasonably well-founded appre- hension of present or future danger, and the goods must be taken while such apprehension exists. The danger apprehended may be, for instance, his own death or some bodily injury to him, or the de- struction of his habitation, or a prosecution for sodomy. In the last case it is immaterial whether the person threatened with the prosecution is innocent or guilty of the offense. A danger of being prosecuted for any other offense is held not to be sufficient. b and Marshall, p. 8G5.) (a) The larceny of the property. See proof under larceny above. (M That such larceny was from the person or in the pre.-' the person alleged to have been robl (c) That the taking was by violence or putting in fear, as alleged. 264 MAM AT, FOR COURTS-MARTTAL. VII. EMBEZZLEMES I'. Embezzler fraudulent appropriation of another's pi \>\ a person to whom it has been intrusted or into whose hands it fully come. It differs from Larceny in that the original _■• of (he prop i the consent of th" owner, while in Is felonious intent mi I at the time of •1. 15, p. 188.) Embezzlement is not a common law but a statuto The purpose of embe: statutes is to meet the case of a ant, clerk, bailee, or other person to whom the possession of prop- erty is intrusted by or for the owner, and who fraudulently misap- propriates it to his own use or otherwise, the circumstances being such that th it larceny. The gist of th( a breach of trust, and can not be com- mitted unless some fiduciary relationship exists between the owner and the person in possession of the property and unless such pos- D was taken by virtue of such relationship. (a) That the as the clerk or servant of a certain other person or stood in some other fiduciary relationship to that per- son, as alleged. (b) That in such fiduciary capacity the accused received into iris possession certain money or property of such person, as alleg (c) Thai he fraudulently converted or appropriated to his own use such money or property. (J) "\ and circum liowing that such convei opriation was with fraudulent intent. Mil. PERJURY. Perjury, at common law, is the willful and corrupt giving, upon a lawful oath, or in any form allowed by law to be substituted for an oath, in a judicial proceeding or course of justice, of Ealse tes- timony materia] to the issue or matter of inquiry. (Clark, p. 3S5.) The false testimony must be willfully and corruptly given ; that is, with a deliberate intent to testify fa It is not perjury to testify by mistake to what is believed to be true, however unfounded the belief may be; hence, a witnes atra- dict under oath testimony formerly given by him without commit- ting perjury, since he may on each occasion have believed his testi- mony to be true. On the other hand, a witness may commit perjury rUNITTTT. ARTICLES. 2G5 by testifying that he knows a thing to be true when in fact he cither knows nothing about it at all or is not sure about it. and this is so fcher the thing he true or false- in fact So, also, a witness may commit perjury in te. tifying falsely as to his belief, remembrai . or as to his judgment or opinion on matters of fact. Thus where a witne that he does not remember certain f when in fact he does he commits perjury, if the oth ts of the ■ where a \ stifled that in drunk when in fact he entertains i.ioll. The oath must ' quired or -authorized by law and must he duly administered by one authorized to administer it. If no particu- lar form of oath is prescribed by statu rm of oath is imma- ■!. but " tb be in some form, in the presence of an officer authorized to administer it, an unequivocal and present ad by which the affiant takes upon himself the obligation of an oath." (Clark and Marshal, p. 863.) Thus, where a person merely delivers an affidavit signed by him to an officer authorized to administer the oath thereto, and without anything more being said or done the i jurat, no oath has been administei Where a form of oath has been p] a literal following of the statute is m>t essential. It is sufficient if the oath administered conforms in substance to the statutory form. An oath includes an affirmation where the latter is authorized in lieu of an oath. It is no defense that the witness voluntarily appeared, or that he was incompetent as a witness, or that his _ r i\en in response to questions that he could have declined to answer, even if he w;h forced claim of privilej Tt Le . " , if the tribunal « ad no juris- diction of the cause in which the false testimony was given. The false testimony must be material to the i itter of in- quiry, or matte:- of inquiry may be a collateral one. ury may I iterial false testimony with i ial witness, or in an affidavit in support of well as by gh ing i which a legitii be drawn as to e that such testimony would have been ex. luded i: or that it \ '. or that it did esult in ndered it 2G6 ■•'' 'AL FOR COUETS-MARTIAL. pboov. (a) That a certain judicial proceeding or course of justice was pending. (b) That the accused was sworn in such proceeding. i That such oatli was administered to the accused in a matte" where an oath was required or authorized by law, as alleged. (d) That such oath was administered by a person having author- ity to do so. (e) That upon such oath he gave the testimony alleged. (/) That such testimony was false, and material to the issue or matter of inquiry. (g) The facts and circumstances indicating that such false tes- timony was willfully and corruptly given. IX. ASSAULT WITH INTENT TO COMMIT ANY FELONY. An assault with intent to commit any felony is an assault m with a specific intent to murder, rape, rob, or to commit man slaughter, sodomy, or other common-law felony. An assault is an attempt or offer with unlawful force or violence to do a corporal hurt to another. (Clark and Marshall, p. 271.) Raising a stick oyer another's head as if to strike him, presenting a firearm ready for use within range of another, striking at another with a cane or fist, assuming a threatening attitude and hurrying toward another are examples of assaults. Some overt act is necessary in any assault. Mere preparation, such as unfastening the catch on a pistol holster in order that the pistol may be drawn, or picking up a stone at a considerable distance from another without making any attempt or offer to throw it, is not an assault. The force or violence must be physical; mere words, however threatening, or insulting gestures are not b}' themselves sufficient tc constitute an assault. Furthermore, in an assault there must be an intent, actual or ap parent, to inflict corporal hurt on another. Where the circumstances known to the person menaced clc negative such intent there is no assault. Thus, where a person accom panics an apparent attempt to strike another by an unequivocal an- nouncement in some form of his intention not to strike, there is no assault. This principle was applied in a case where the defendant raised his whip and shook it at the presecutor within striking dis tance saying, " If you weren't an old man, I would knock you down.' Viewed solely as an attempt to commit a battery there must be an actual or constructive intent to do a corporal hurt to another, and an IMMilVi; ARTICLES. 267 act of unlawful violence or force begun to be executed with a view to indicting such hurt. How such purpose is defeated is Immaterial. The following have been he'd to be assaults: Riding after a person so as to compel him to seek safety in an inclosure to avoid a beating, though the assailant was never near enough to hit him; rushing upon another in a threatening attitude although before quite close enough to strike, the person threatened strikes in self-defense or the attack is frustrated by a third person. It is also an assault where the person in order to avert the taking effect of the unlawful violence yields to a demand of his assailant. Thus, where A, being within striking distance of B, raises a weapon for the purpose of unlawfully striking him, stating that he will strike unless B does a certain thing, and B does that thing, thereby averting the hlow, A commits an assault. It is not a defense to a charge of assault that for some reason unknown to the assailant his attempt was bound to fail. Thus, where a soldier loads his rifle with what he believes to be a good cartridge and, pointing it at a person, pulls the trigger, he is guilty of assault although the cartridge was so defective that it could not be used. The same principle was applied to a case where a person in a house shoots through the roof at a place where he supposed a policeman was concealed, though the policeman was at another place en the roof. The intent need not be to injure a particular person, and mere recklessness may supply the place of intent. Thus, where one strikes at A believing him to be B, he is guilty of assaulting A ; and where one fires a loaded and capped pistol at another recklessly, and not knowing or seeking to know whether it is loaded or not, he commits a lilt. To constitute an assault, however, it is unnecessary that there be an actual or constructive intent to hurt anyone or a believed ability to inflict such hurt. If there be to the person set upon an apparent present intent to injure, coupled with an < ut ability to do so, it is suih- cient. The better opinion, however, is to the eff< a jverson pre- sents a gun at another, or threatens him with a stick or other weapon, and thereby reasonably puts him in fear and causes him to act on the defensive, or I . there is an assault, whether I • injure or not. In a comparatively late BCassaehuE it was held that a man who pointed an un- loaded gun at and It, although he may have known that it was not loaded and may have had no intention to injure. "It is not th* bent of tl ag party," said the court, "nor the undisclosed fact of his ability or inability to 208 ' \L FOR COUBTS-MAETIAL. commit a battery, that is material, but what his conduct and the attending circumstances denote at the time t<> the party assaulted. 1 f to him they indicate an attack, he is justified in resorting to defen- sive action. The same rule applies to the proof necessary to sustain iplaint for an assault. It is the outward demonstration that mischief which is punished as a breach of the • (Clark and .Marshall, pp. 277, l>78.) If the] ' tion of violence, coupled with an ap- flict the injury, so as tat whom it is directed reasonably to fear the injury unless he retreat to secure afety, and. under such circumstances he -led to retreat oid an impending danger, the assault is complete, though the assailant may never have, been within the actual striking distance of the person assailed. (Clark and Marshall, p. 281. note.) There must, however, be an apparent present ability. To aim a ■•: at a man at such a distance that it clearly could not injure would not be an assault. A battery is an assault in which force is applied, by material agencies, to the person of another, either mediately or immediately. Thus, it is a battery to spit on another; to push a third person inst him; to set a dog at him which bites him; to cut his dress while he is wearing it, though without touching or intending to touch his person; to shoot him; and to cause him to take poison. So it is a battery for a man to fondle against her will a woman not his wife. The force may be applied through conductors more or less close. Thus, to strike the dress of the person assailed, or the horse on which he is riding, or the house in which he resides, may be as much a battery as to strike his face; and sending an explosive machine by express from New York to San Francisco be as much a battery as taking it to San Francisco in person. It is not, however, a battery to lay hands on another to attract his attention, or in a party falling to seize another for support. Send- ing a missile into a crowd also is a battery on anyone whom the ile hits; and so is the use, on the part of one who is excused in i . of more force than is required. (Wharton, vol. 1, pp. 566, 567.) 1. Assault With Intent TO MUEDEB. This is an assault aggravated by the concurrence of a specific intent to murder; in other words, it is an attempt to murder. As in other attempts there must he an overt act. beyond mere prep- aration or threats, or an attempt to make an attempt. •Id not an assault with intent to murder where the • lant drew a pistol from his hip pocket, but because of its be- coming caught in the lining of his coat, did not make any actual PUNITIVE ARTICLES. 209 attempt to inflict an injury with the pistol on the person alleged to have been assaulted. To constitute an assault with intent to murder by firearms it is not necessary that the weapon be discharged; and in no case is the actual infliction of injury necessary. Thus, where a man with intent to murder another deliberately assaults him by shooting at him the fact that lie misses does not alter the character of the offense. Where the intent to murder exists, the fact that for some reason unknown the actual consummation of the murder is impossible by the means employed does not prevent the person using them from being guilty of an assault with intent to commit murder where the means are apparently adapted to the end in view. Thus, where a soldier intending to murder another loads his rifle with what he be- lieves to be a good cartridge and aims and discharges his rifle at the other, it is no defense that he, by accident, got hold of a cartridge so defectively loaded that the bullet did not leave the gun. In order to constitute this offense the specific intent to murder must exist, and the facts must be such that had death been caused by the act the offense would have been murder, but the converse of this latter proposition is not always true, as a man may be guilty of murder without intending .to kill. Thus, where a workman recklessly throws a heavy object from the roof of a building into a street where he knows people are likely to be passing and thereby kills a person, he may be guilty of murder: but where the person is merely injured, the offense of assault with intent to commit murder is not committed. To constitute this offense there must be a specific intent to murder the person assaulted and this intent must exist at the time of the It. A general felonious intent of a specific design to commit another felony is not sufficient, and where a person is too drunk to entertain the specific intent the offense is not murder. But where th intending to murder A shoots at and wounds B. mistaking him for A. he is guilt 5 'ting B with intent to murder him; so where a man fires into a group with intent to murder some one he :ilty of an assault with intent to murder each member of the group. 2. ' - mlt with intent to murder in the lack -r\ to constitute the latter I* is an attempt to take human life in a sudd f passion. 'I • specific intent to kill i and the act must b und< ■ ; . at had dei offense v. • : 270 MANUAL FOE COURTS-MARTIAL. "What has been said un< !■ alt with intent to commit murder applies to the offense of assault with intent to commit man- slaughter. 3. Assavit with Intent to Commit RAfe. This is an attempt to oommit rape in which the overt act amounts to an assault upon the woman intended to be ravished. Indecent advances, importunities however earnest; mere threats; and actual attempts to rape wherein the overt act is not an assault do not am to this offense. Thus, where a man, intending to rape a woman, stealthily concealed himself in her room to await a favorable oppor- tune ite his design but was discovered and lied, it was held that he was not guilty of an assault with intent to commit rape. No actual touching is necessary. Thus where a man entered a woman's room and got in the bed whore she was and within reach of her person for the purpose of ravishing her he commits the offense, although he did not touch the woman. This offense may be committed on a woman who is insane or an imbecile, or while she is dragged or intoxicated, or asleep, provided the offense would be rape if the purpose was carried out. But where an attempt to have connection with a woman capable of consenting and whose consent thereto has been obtained by fraud there can be no assault with intent to commit rape. Thus an attempt to have connection with, a woman who has con sented thereto in the belief that one personating her husband is her husband can not be an assault with intent to commit rape. The intent to have carnal knowledge of the woman assaulted by force and without her consent must exist and concur with the assault. In other words, the man must intend to overcome any resistance by force, actual or constructive, and penetrate the woman's person. Any less intent will not suffice. Thus where a man assaults a « ■■ his purpose being to seduce her, the offense is not committed. Once an assault with intent to commit rape is made it is no defi that the man voluntarily desisted or that the woman yields her sent to the connection, so that no rape is committed. 4. Assavit WITH INTENT to Bob. This is an attempt to commit robbery wherein the overt act ] assault and the concurrent intent is forcibly tc take and carry a property of the per lied from his person or in his presence •lence or putting him in fear. The accused can not set up as a. defense that he intended to take only money and that the person ho attempt d to rob had no PUNITIVE ARTICLES. 271 5. Assault With 1- •umit Sodomy. Sodomy consists in sexual connection with any brnte animal, or in sexual connection, per anum, by a man with any man or woman. (Wharton, voL 2, p. < ration of the mouth <>!' the person constitutes th Both parties are liable as principals if each is adult an but if either be a boy of tender age the adult alone is liable, and although the boy consent the act is still by force. Penetration alone is sufficient. An assault with intent to commit this offense consists of an assault on a human being with intent to penetrate his or her person per anum. That which has been before stated, with regard to the evidence and manner of proof in cases of rape, ought especially to be observed upon a trial for this heinous offense. When strictly and impartially proved the offense well merits strict and impartial punishment; but it is from its nature so easily charged and the negative so difficult to be proved that the accusation ought clearly to be made out. The evidence shoidd be plain and satisfactory in proportion as the crime is detestable. — 4 Bla. Com., 215. (Archbold's Criminal Practice ami Pleading. Tth ed., roL 2, pp. L85, L86, note.) (1) Assault with intent to murder: (a) That the accused assaulted a certain person, as alleged. (b) The facts and circumstances of the case indicating the exist- ence at the time of the assault of the specific intent of the accused to kill such person, and that the killing would have been murder had death resulted. [Nona. — Both the specific intent and the malice man be Inferred from t 1 of a deadly weapon in a way calculated to cause death, or from other deliberate acts of violence likely to result in death or great bodily harm.] (2) Assault with intent to commit manslaughter: (a) That the accused assaulted a certain person, as alleged. (b) The facts and circumstances of the case indicating the exist- ence at the time of the assault of the specific intent of the accused to kill such person and that the killing would have been \ ! Laughter had death resulted. i ult with intent to commit rape: (a) That the led. (&) 'i ind circumstances of the case indicating the exist- the intent of the accused to p h female at all events by overcoming any tance on her part by actual or constructive force; and 272 MANUAL POB COVKTS-MAKTIAL. and cir< umstances indicating that the offense of rape would have committed had the accused succeeded in carrying* out his purp< ( 1 1 Assault with intent to roh: (a) That the accused assaulted as alleged. (b) ': drcumstances of the case indicating the exist- at the time of the assault of the intent on the part of the accused :i property of such person from his person or in his • violence or putting him in fear. lilt with intent to commit sodomy: (a) That the accused assaulted a certain person, as alleged. (b) The facts and circumstances of the case indicating the con- ent intent to commit the offense on such person. : B INTENT TO DO BODILY HARM. This is an assault aggravated by the specific present intent to do bodily harm to the person assaulted by means of the force employed. It is not necessary that any battery actually ensue, or, if bodily liana is actually inflicted, that it be of the kind intended. Where the accused acts in reckless disregard for the safety of others it is not a defense that he did not have in mind the particular person injured. PBOOF. (a) That the accused assaulted a certain person, as alleged. (&) The facts and circumstances of the case indicating the con- current intenl thereby (<> do bodily harm to such person. (/'. M, < . M.,No. I) NINETY-FOURTH ARTICLE. 444. Any person subject to military law who- makes or causes to lie made any claim against the United Stares, or any officer thereof, knowing such claim to be false or fraudulent; or [21 Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States, or any offl '. knowing such claim to be false or fraudulent; or [3] Who enters Into any agreement or conspiracy to defraud the United a by obtaining, or aiding others to obtain, the allowance or payment of any false or fraudulent claim; or [4] Who, for the purpose <>f obtaining, or aiding others to obtain, the ap- proval, allowance, or payment of any claim against the United States or y officer thereof, makes or esc-., or procures, or advises the making of, any writing or Other paper, knowing (lie same to contain any false or fraudulent statements ; or [5] Who, f>>\- ill- purpose of - tiers to obtain, the ap- proval, allowance, or payment of any claim againsl the United states or any officer thereof, makes, or procures, or advises the making of, any oath to any ■ to any writing or "tli defraud the United States by means of a padded voucher t<> be c< rtified as correct by the officer. I I That the accused and one or more other persons named or bed entered into an agreement, i That the object of the agreement was to defraud the United (c) That the means by which the fraud was to be effected were to obtain or assist certain other persons to obtain the allowance or payment of a certain false or fraudulent claim, as specified. {<>') The amount involved, as alleged. IV. MAKING, USING, PROCURING, OK ADVISING THE MAKING OR USE OF A I AL8E WRITING OK OTHER PAPER IN CONNECTION WIT li CLAIMS. See the fourth paragraph of the article, and matter under head- ings -I" and "II." It is not necessary to the offense of making a writing knowing it to contain false or fraudulent statements that such writing be used or attempted to be used, or that the claim in support of which it was made be presented for approval, allowance, or payment. The false or fraudulent statement should, however, be material. In the offense of procuring the making or use of the writing or other paper, the paper must be made or used; but in the offense of advising such acts the making or use of the paper is not necessary. Examples of offenses under this paragraph are: Willfully inducing another to make to the United States a lease of premises containing a false and fraudulent statement with a view of obtaining the allow- ance of a false claim for rent against the United States; falsification by a soldier of an entry in the company clothing book for the pur- pose described in this paragraph of the article; and the making by an officer in his pay account of false and fraudulent statements with a view to securing the payment of such account. ((/.) Thai the accused made or used or procured or advised the making or use of a certain writing or other paper, as alleged. ( i> ) That certain statements in such writing or other papers were false or fraudulent , as alleged. (< ) That the accused knew this. (d) The facts and circumstances indicating that the act of the ac- cused was for the purpose of obtaining or aiding certain others to ney than was actually due. received a receipt; signed in blank by i\w creditor, ■which he afterwards completed by writing the true amount due. (i<-i of a nature to bring discredit upon the military service, and ;•:! i oof capital* 282 MANUAL FOR COURTS-MARTIAL. of which persons subject t<» military law may be guilty, shall be taken cognl- zance of by a general or special or summary court-martial, according to the nature and degr t and punished at the discretion of such court. Definitions and Principles. See matter under the respective headings under which the offenses are treated. Analysis and Proof. The article applies to any person subject to military law. See article 2. The article embraces offenses falling within the classes described therein, and not mentioned in the other punitive articles. The offenses may be treated under the following headings: I. Disorders and neglects to the prejudice of good order and mili- tary discipline. II. Conduct of a nature to bring discredit upon the military service. III. Crimes or offenses not capital. I. DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND MILI- TARY DISCIPLINE. The disorders and neglects include all acts or omissions to the prejudice of good order and military discipline not made punishable by any of the preceding articles. By the term " to the prejudice," etc., is to be understood directly prejudicial, not indirectly or remotely merely. An irregular or improper act on the part of an officer or soldier can scarcely be con- ceived which may not be regarded as in some indirect or remote sense prejudicing military discipline; but it is hardly to be sup- posed that the article contemplated such distant effects, and the same is, therefore, deemed properly to be confined to cases in which the prejudice is reasonably direct and palpable. ( Winthrop, p. 1123.) Instances of such disorders and neglects in the case of officers are: Disobedience of standing orders, or of the orders of an officer when the offense is not chargeable under a specific article; allowing a sol- dier to go on duty knowing him to be drunk; rendering himself unfit for duty by excessive use of intoxicants; drunkenness. Instances of such disorders and neglects in the cases of enlisted men are: Failing to appear on duty with a proper uniform; appear- ing with dirty clothing; malingering; abusing public animals; refus- ing to submit to treatment necessary to render him fit for duty ; re- Fusing to submit to a necessary and proper operation not endangering life (see G. O. 43, W. D., 1906) ; careless discharge of firearms; personating an officer; making false statements to an officer in regard to matters of duty. PUNITIVE ARTICLES. 288 (a) That the accused did or failed to do the acts alleged. (b) The circumstances, intent, etc.. as specified. n. conduct or a nature to bring discredit upon the military SERVICE. "Discredit," as here used, means to injure the reputation of. The principal object of including this phrase in the general article was to make military offenses those acts or omissions of retired sol- - which were not elsewhere made punishable by the Articles of «\ r ar but which are of a nature to bring discredit on the service, such. ■8 a failure to pay debts. There is, however, a limited field for the application of this part cf the general article to soldiers on the active list in cases where their discreditable conduct is not made punishable by any specific article or by the other parts of the general article. (a) That the accused did or failed to do the acts alleged. (b) The circumstances, intent, etc., as specified. III. CRIMES OR OFFENSES NOT CAPITAL. Til.' crimes referred to in A. W. 96 manifestly embrace those not capital committed in violation of public law as enforced by the civil power. (U. S. v. Grafton, 206 U. S., 348.) All crimes or offenses wherever committed that are not made punishable by death are included, except such as are specifically in- cluded in some other article and (in view of the ninety-second ar- ticle) except murder or rape committed in time of peace within the geographical limits of the States of the Union and the District olumbia. Within this description would be a noncapital crime which, al- though designated by the laws of the jurisdiction where committed vrith one of the names used, for instance, in the ninety-third article, is not within the common-law definition of the offense. Thus section 90 of the Federal Penal Code of 1910 provides that * failure by an officer to render accounts for public money received ft>y him unless authorized to retain it as salary, pay, or emolument an embezzlement of such funds. Such an embezzlement not 1 thin the definition of embezzlement as the term is used in tha Dety-third and ninety-fourth articles would be chargeable under genera] article. The elements of some of the more common crimes that are charge* I Die under this article will now be discussed. <2S4 MANUAL TOR C0T7BTS-MABTIAL. (1) Assault. (2) Assault and tottery. — See matter under heading "IX" under ninety-third article. A battery is any unlawful touching or injury, however slight, to the person of another directly or indirectly 'lone in an angry, re- vengeful, rude or insolent manner. Throwing water or spitting in a person's face is a battery. So, merely taking hold of another's clothing, or pushing another against him. or striking a horse on which he is riding causing him to be thrown: striking his cane while in his hand, is a battery when done unlawfully and in the manner described. If the injury is accidentally inflicted in doing a law fid act without culpable negligence the offense is not committed: but where personal injury results from the reckless doing of an act likely to result in such injury, the offense is committed. It is no defense that the injury took place on a person for which it was not intended, or that the injury was not the immediate result of the defendant's acts. Thus, if a person throws a firecracker in a crowd where it is tossed from hand to hand and finally explodes and puts out a man's eye, the offense is committed. (3.) Assault with a dangerous weapon, instrument, or other thing. — See matter under heading " IX," under Ninety-third article. Weapons, etc., are dangerous when they are used in such manner that they arc likely to produce death or great bodily harm. Mere capability of being so used is not enough. Boiling water may be so used as to be a dangerous thing, and a pistol may be so used as not to be a dangerous weapon. (4.) Forgery. — At common law "forgery is the fraudulent mak-> ing of a false writing which, if genuine, would be apparently of some legal efficacy." (Bishop, vol. 2. p. 301.) Some of the instruments that are subjects of forgery are checks, indorsements, orders for the delivery of money or goods, railroad tickets, and receipts. A false writing includes a false instrument that is in part or en- tirely printed, engraved, written with a pencil, or made by photog- raphy or other device. A false writing may be made by materially altering an existing writing, by rilling in a paper signed in blank, or by signing an instru- ment already written. The writing must be false — must purport to be what it is not. Thus, signing another's name to a check with intent to defraud is forgery, as the instrument purports on its face to be what it is not. But \\ here, after the false signal ure of such person is added the word by and the signature of the person making the check, Jhus indicat- CTVE ABTTCLES. 285 ing an authority to sign, the offense is not forgery even if no such authority exists, as the check on its face is what it purports to be. Forgery may be committed by signing one's own name to an instru- ment. Thus, where a check payable to the order of a certain person comes into the hands of another of the same name, he commits for- gery, when, knowing the check to be another's, lie indorses it with his own name, intending to defraud. Forgery may also be committed by signing a fictitious name, as where a person signs a check payable to himself with a fictitious name: but when he passes a check signed by him with a fictitious name, credit being extended to Mm without regard to his name, forgery is not committed. To constitute a forgery the instrument must have apparent legal efficacy. The fraudulent making of an instrument affirmatively in- valid on its face is not a forgery. But this requirement does not ordinarily prevent the fraudulent making of a signature on a check, for instance, from being a forgery even if there be no resemblance to the genuine .signature and the name is misspelled. The false writing must be made with intent to defraud. A per- son who signs another's name to an instrument believing that he has authority to do so does not commit a forgery. It is immaterial, however, that anyone be actually defrauded or that no further .-tcp be made toward carrying out the intent to defraud than the making of the false writing. (5) Sudani/. — See assault with intent to commit sodomy under heading " IX." under ninety-third article. PBOOF. Crimes in general: : That the accused did or failed to do the acts alleged. ( I ) The circumstances, intent, etc., as specified. (1) Assault: That the accused did the overt act alleged. (I) The facts and cii vimistances of the case indicating either that such an act was an actual attempt with force and violence to do a corpora] hurt to a certain person or that such act was apparently ■ the mind of the person set upon a well-grounded apprehension of such injury, cj | A -- lull and bal (a) Tli ! Ited B certain person, as alleged. (b) Thai an ilted to such p< It with a weapon, instrument, or other thing: (a i That the accused assauh with a • weapon, insti ument, or t ; . 2bG MANUAL W>B c (»r UTS- MARTIAL. (b) That facts and circumstances oi the case indicating that such weapon, instrument, <>r thing was used id a manner likely to produce death or great bodily harm. i 1 1 Forgery: (a) That a certain instrument was made. (The instrument itself should be produced, if available.) {b) That such instrument is a forgery. (c) That the accused forged it. (d) The facts and circumstances of the case indicating the intent of the accused thereby to defraud a certain person. (5) Sodomy: See proof under heading " IX," under ninety-third article. CHAPTER XVIII. COURTS OF INQUIRY. :iion: Page. 447 . When and by whom ordered 448. Limitation upon power to convene 288 449. Discretion as to ordering court 288 Section II: Jurisdiction: 450. As to persons 288 451 . As to time 288 452. As to subject matter 288 Section TIT: Composition: 453. Members 288 454. Recorder 289 455. Convening order 289 456. Hank of members 289 457. Reporter and interpreter 289 I V: Powers: 458. To summon and examine witnesses 289 459. Refusal to appear or testify 289 460. ( iontempt '• 289 Section V: Procedure: 461. General principles 290 I rn sence of party whose conduct is being investigated 290 463. Counsel 290 464. Challenge 290 4G5. Reduced numbers 200 466. Oaths 290 467. Examination oi witnesses 291 468. Depositions 291 469. Conclusions 291 470. Obligation of secrecy 291 471. Revision by court - 1 ' 1 472. Publication of proceedings - !, 2 Section VI: Record: 473. How authenticated 292 474. Disposition of 292 475. Admissible in evidence 292 Section L CONSTITUTION. 447. When and by whom ordered.— A court of inquiry to examine into the nature of any transaction isation or imputation against any officer or soldier may be ordered by the President or by 287 2SS MANUAL FOR COUETS MARTIAL. m.;. con manding officer, but a court of inquiry shall not bo ordered by any commanding officer except upon the request of the officer or soldier whose conduct is to be inquired into. (A. AY. 97.) 448. Limitation upon power to convene. — There butory re- striction to the meaning of the term "commanding officer," conse- quently any commander 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 mander can appoint, he would not. by analogies of the service in administration of military justice, be the proper convening au- ty in such case. (Op. J. A. G., approved by Secretary of War, Sept. 19, L874.) 449. Discretion as to ordering court. — Neither the President nor a manding officer is obliged to order a court of inquiry on demand of an officer <>r soldier. Where the facts are thoroughly understood thority who is requested to order a court of inquiry or can be Factorily ascertained by an investigating officer, the command- officer may, in his discretion, refuse the application; but in the 1 the party, if not satisfied, may appeal to higher authority. (Winthrop, p. 805.) Section II. JURISDICTION. 450. As to persons. — A court of inquiry may examine into the con- duct of officers « r soldiers only (A. W. 97), and the inquiry is con- fined to those actually in the service. (Digest, p. 586, XVIII, I'..) 451. As to time.— The statute of limitations (A. W. 39) does not apply to courts of inquiry. There is no legal objection therefore to tigating transactions that are remote in time. 452. As to subject matter.— The inquiry is limited to transactions of or accusations or imputations against officers or soldiers. (A. W. 97.) Tin- principal uses which courts of inquiry are expected to serve are: For determining whether there should be a trial by court-martial in a particular instance; (&) for informing and advi perior authority in cases which appear not to call for trial by court-martial, but for some other military or administrative action; and (c) for the vindication of character or conduct. (Winthrop. p. 805.) Se< no\ III. COMPOSITION. 453. Members.— A court of inquiry shall consist of three or more officers. (A. W. 98.) The Secretary of War may assign retired officers, with their consent, upon courts of inquiry. (Act of Apr. COURTS OF INQUIRY. 289 23, 1904.) In time of war retired officers may be employed on active duty in the discretion of the President. (Act of June 3, 191G.) 454. Recorder. — For each court of inquiry the authority appointing the court shall appoint a recorder. (A. W. 98.) The recorder is not an adviser of tho court nor a prosecutor before it, but will assist the court, if it so desires, in all matters leading to correct conclu- sions of fact and law. 455. Convening order. — The form of the convening order is similar to that for a court-martial. It details the members and recorder by name, fixes the time and place of meeting, specifies the subject matter of inquiry, and directs a report of the facts only, or of the facts with an opinion on the merits of the case. 456. Rank of members. — There is no statute prescribing the rank of members, but when it can be avoided they should not be inferior in rank to the officer whose conduct is being inquired into. The decision of the appointing authority, as indicated by the order convening the court, is conclusive as to whether or not it can be avoided. 457. Reporter and interpreter. — The president of a court of inquiry has the same power to appoint reporters and interpreters as is dele- gated to the president of a court-martial. (A. W. 115.) They are usually paid at the rates fixed by Army regulations for those of courts-martial. (A. E. 986-988.) An enlisted man may be detailed to serve as stenographic reporter and will receive extra pay as pro- vided in A. R. 986. Section IV. POWERS. 458. To summon and examine witnesses. — A court of inquiry and the recorder thereof shall have the same power to summon and examine witnesses as is given to a court-martial and the judge advocate thereof. (A. W. 101.) 459. Refusal to appear or testify. — Any person not subject to military law who. being duly subpoenaed to appear as a witness before a court of inquiry or before- any officer, military or civil, designated to take a deposition to be read in evidence before such court, willfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify, or to produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor and punished as in like offenses with respect to courts- martial. (A. W. 23.) 460. Contempt. — A court of inquiry has no authority to punish for contempt, but any conduct before it to the prejudice of good order and military discipline by persons subject to military law may be made the subject of charges against the offender. i 20 290 MANUAL FOR COURTS-MARTIAL. Section V. PROCEDURE. 461. General principles. — A court of inquiry is governed by the gen- oral principles of military law, applying the analogies of a court- martial where they arc applicable, and recurring to adjudged cases, precedents, rules, authoritative Legal opinions, and approved books of legal exposition where there is no pertinent paramount stated ride. (28 Op. Attv. Gen., 864*) A court of inquiry is not really a court in the Legal sense of the term, for no criminal issue is formed before it, it arraigns no accused, receives do plea, makes no findings of guilt or innocence, awards no punishment, and expresses no opinion unless specially ordered to do so. 462. Presence of party whose conduct is being investigated. — The pres- ence of the party whose conduct is being investigated is not essential and his absence does not affect the authority of the court to proceed with the hearing. 463. Counsel. — The party whose conduct is being inquired into shall have the right to be represented before the court by counsel of his own selection, if such counsel be reasonably available. (A. W. 99.) So also the accuser, where there is one, should usually be allowed to bo present with counsel, and a similar privilege may properly be ex- tended to any oflicer who will be materially involved in the inquiry. (Winthrop, p. 812.) 464. Challenge. — Members of a court of inquiry may be challenged by tin' party whose conduct is being inquired into, but only for cause stated to the court. The court shall determine the relevancy and validity of any challenge, and shall not receive a challenge to more than one member at a time. (A. W. 99.) 465. Reduced numbers. — Where the number of members is reduced by casualty or challenge, the court may proceed with the reduced num- ber, if not below the minimum, but the appointing authority should be notified in order that he may detail new members if he desires to do so. If any testimony has been taken before a new member is added, it should be read to him in the presence of the other members. In the absence of the recorder the junior member can not act as recorder. The proper procedure is to notify the convening authority and adjourn to await the appointment of another recorder. 466. Oaths. — The reorder of a court of inquiry shall administer to the members the following oath: Ynu, a. I'.., do swear (or affirm) that you will well and truly examine and Inquire, according to the evidence, Into the matter now before you, without partiality, favor, aff< ctlon, prejudice, or hope of reward. So help yon God. COURTS OF INQUIRY. 291 After which the president of the court shall administer to the recorder the following oath : You, A. B., do swear (or affirm) that you will, according to your best abili- ties, accurately and impartially record the proceedings of the court and the evidence to be given in the case in hearing. So help you God. In case of affirmation the closing sentence of adjuration will be omitted. (A. W. 100.) AVitnesses shall take the same oath or affirmation that is taken by witnesses before courts-martial, and a reporter or interpreter shall, before entering upon his duties, take the oath or affirmation required of a reporter or an interpreter for a court-martial. (A. W. 101.) 467. Examination of witnesses. — The examination of witnesses may be by the court, by a member thereof, or by the recorder, in the discre- tion of the court. The party whose conduct is being inquired into or his counsel, if any, shall be permitted to examine and cross- examine witnesses so as fully to investigate the circumstances in ques- tion. (A. W. 101.) A witness may not be compelled to answer any question which would tend to incriminate or degrade him. (A. W. 24.) 468. Depositions. — Depositions to be read in evidence before courts of inquiry are taken and admitted in evidence under the same rules governing their taking and admissibility in evidence before courts- martial. ' (A. W. 25, 26.) 469. Conclusions. — The court must, as a finding, give its conclusions as to the facts, and, when ordered, must also give an opinion on the merits of the case. The conclusions or opinion may not be unani- mous, in which case a dissenting conclusion or opinion is authorized. 470. Obligation of secrecy. — The oath of members of a court of in- quiry, unlike that of members of a court-martial, does not enjoin upon them secrecy as to the votes and opinions of members, but under the custom of the service it would be conduct prejudicial to disci- pline to-divulge the recommendation or opinion of the court until an- nounced by the appointing authority, or to disclose the vote or opin- ion of a member unless legally required to do so. 471. Revision by court. — If not satisfied with the investigation, or with the report or opinion, the reviewing authority may reassemble the court, in the same manner as a court-martial, and return the pro- ceedings with direction either to have the investigation pursued further and completed, or the report of the facts made more detn i !< ' and comprehensive, or the opinion expressed in terms more definite and unequivocal or more responsive to the original instructions, or tc correct or supply some other error or defect. The inquiry not being I trial but an investigation merely, the court may properly be required, upon revision, to reexamine witnesses or to take entirely new testi- MANUAL ror cor mony, or it i owi d< re in connec- tion with I •'!. (Winthrop, p. 819.) I. Publication of proceedings. — The reviewing authority, having , q] on ill" report or opinion, may publish in orders, or in part, or in substance, the report of the court upon the I the inquiry, with the opinion, ii any, and the determina- . Upon considerations, however, of justice, the President or commander may, in his discretion, delay the publication, or omit altogether the publication of, the may publish the result alone, as, for example, that it is ceedings are called for in the case. Section VI. RECORD. 473. How authenticated. — Each court of inquiry shall keep a record ings, which shall be authenticated b}^ the signature Oi the president and the recorder thereof. In case the record can not be authenticated by the recorder, by reason of his death, disability, or absence, it shall be signed by the president and by one other mem- the court. (A. W. L03.) 474. Disposition of. — The record shall be forwarded to the reviewing authority. (A. W. 103.) Should the court be appointed by the Pn ident the proceedings will be sent direct to the Judge Advo- General of the Army. To his office will be forwarded the original proceedings <>f all courts of inquiry with the decisions and oniric of the reviewing authority made thereon, accompanied by five copies of lln' order publishing the ease, if there be any, also a copy of every subsequent order affecting the case. When more than one case abraced in a single order, a sufficient number of copies will be forwarded to enable our to be filed with each record. (A. R. 917.) 475. Admissible in evidence. — The record of the proceedings of a i our! of inquiry may be read in evidence before any court-martial or military commission in any case not capital nor extending to the dismissal <»f an officer, and may also be read in evidence in any pro- ceeding before a court of inquiry or a military board: Provided, Th.it Mich evidence may he adduced by the defense in capita] cases or a ding t<> the dismissal of an officer. (A. W. 27. See 272.) CHAPTER XIX. HABEAS CORPUS. Page. Section I: Purpose of writ 293 47G. To determine legality of restraint 293 Section II: Where restraint is by the United States 293 477. State court without authority 293 Section III: Return to writ issued by State court 294 478. To show authority for restraint 294 (o) Witness held under warrant of attachment 294 (6) Enlisted man or general prisoner 294 in IV: Return to writ issued by a United States court 295 479. Contents 295 an V: Writ issued in the Philippine Islands 295 480. When return conclusive 295 Section I. PURPOSE OF WRIT. 476. To determine legality of restraint. — The purpose of the writ of habeas corpus is to bring the person seeking the benefit of it before the court or judge to determine whether or not he is illegally re- strained of his liberty. It is a summary remedy for unlawful re- straint of liberty and it can not be made use of to perform the func- tion of a writ of error or an appeal. Where it is decided that the restraint is unlawful he is ordered released, but if the restraint is lawful the writ is dismissed. If the restraint be by virtue of legal process, the validity and present force of such process are the only subjects of investigation. Section II. WHERE RESTRAINT IS BY THE UNITED STATES. 477. State court without authority.— A State court is without authority to inquire into the legality of the restraint where it appears that the custody is by virtue " of the authority of the United States," the principle being that no State can authorize one of its judges or courts to exercise judicial power, by habeas corpus, within the jurisdiction of another and independent government. No State judge or court, after they are judicially informed that the party is held under the authority of the "United States, has any right to interfere with him or to require him to be brought before them. (Bobb v. Connolly, 111 U. S., 024, 632; Ableman v. Booth, 21 How.. 506, 514; Tarble's case, 203 29 | i \i. l OB I OUSTS M \t: I I.M.. L8 Wall., 397, W9.) If d party thus held be illegally imprisoned, it i the courts or judicial officers of the United States, and those courts or officers alone, to grant him release. (Tarble's case, t3 Wall., 11.) S» no» ill. RETURN TO WRIT ISSUED BY STATE COURT. 478. To show authority for restraint.— The return should be suffi- - in its detail of fads to show distinctly that the imprisonment is under the authority, or claim and color of the authority, of the i States and to exclude the suspicion of imposition or oppres- sion on the part of the officer making the return. The process or orders under which the petitioner is held should be produced with the return and submitted to inspection in order that the court or the judge issuing the h rit may see that the officer is acting in good faith, under the authority or claim and color of authority of the United States, and not under the mere pretense of having such authority. (Tarble's case, 13 Wall., 307, -409; Covell v. Herman, 111 U. S., . 83. ) (a) Witness held under warrant of attachment. — Where the petitioner is a civilian who has been apprehended under a warrant of attach- ment to be taken before a court-martial to testify as a witness, the officer making the return to the writ issued by a State court or judge will not. produce the bodj r , but will, by his return, set forth fully the authority by which he holds the person and allege that the State court, or judge, issuing the writ is without jurisdiction to issue the same and ask to have it dismissed. He will exhibit to the court or judge issuing the writ of habeas corpus the warrant of attachment and the subpoena (and the proof of service of the subpoena) on which the warrant of attachment was based, and also a certified copy of the order convening the court-martial before which the wit- •. as subpoenaed to testify, together with a copy of the charges and specifications in the case in which he was subpamaed to testify, and an affidavit showing that the witness has failed to appear in use to such subpeena. I Nora.— See A. R. 997. For form of return, see Form B, Appendix 15.] (b) Enlisted man or general prisoner. — The return to a writ of habeas corpus issued by a State court or judge to produce an enlisted man or a general prisoner and show cause for his detention will show in writing that the subject of the writ is a duly enlisted soldier of the United State- or a genera] prisoner, as the case may be, and set fi fully the cause of his detention, hut the officer making the return will decline to produce in court the body of the prisoner named in th« HABEAS CORPUS. 295 writ, giving as a reason for such refusal the fact that the Supreme Court of the United States has decided that a State court or judge has no jurisdiction in such a case. [Note. — See A. R. 99S. For form of return, see Form D, Appendix 15. A deserter apprehended by a civil officer authorized by a statute of the United States to apprehend deserters is in the custody of the United States. See D. S. v. Reaves, 126 Fed. Rep., 127.] Section IV. RETURN TO WRIT ISSUED BY A UNITED STATES COURT. 479. Contents. — A writ of habeas corpus issued by a United States court or judge will be promptly obeyed. The person alleged to be illegally restrained of his liberty will be taken before the court from which the writ has issued and a return made, setting forth the reasons for his restraint. The officer upon whom such writ is served will at once report the fact of such service by telegraph direct to The Adju- tant General of the Army and the commanding general of the depart- ment, stating briefly the grounds on which the release of the party is sought. [Note. — See A. R. 999. For form where a civilian witness is held under war- rant of attachment, see Form A, Appendix 15. For form whei-e an enlisted man or general prisoner is held, see Form C, Appendix 15. For brief of authori- ties when writ is applied for on grounds of age, see Appendix 15.] Section V. WRIT ISSUED IN THE PHILIPPINE ISLANDS. 480. When return conclusive. — It shall be a conclusive answer to a writ of habeas corpus against a military officer or soldier and a suffi- cient excuse for not producing the prisoner if the commanding gen- eral or any general officer in command of the department or district shall certify that the prisoner is held by him either — {a) As a prisoner of war ; or (b) As a member of the Army, civilian employee thereof, or a camp follower and subject to its discipline : or (c) As a prisoner guilty of violation of the laws of war commit- ted in any unpacified province or territory and who has escaped into provinces officially declared to be under civil control and has been there 1 captured by military authorities and is held for trial for such violations of the laws of war. rXoTK.— Sec. 1, Act. No. 272, Philippine Commission, Oct. 21. 1901. and sec. 4, Act No. 421, id.. June 23, 1902. Respectful return in writing will be made iD the ease of prisoners who may be exempted from jurisdiction by the provision? of these acts stating the facts of the east-, but the body of tin 1 prisoner will not be produced. In all other eases the return will be made and the body produced before the proper tribunal.] CHAPTER XX. MISCELLANEOUS AND TRANSITORY PROVISIONS. . in I: Miscellaneous provisions 297 481. Injuries to persons or pr. | Effects of d< 298 - - 299 Removal of . ivil suits 300 485. Complaints of wrongs 300 \ 1 1 Lcles of War— When effecl Lve 301 on I ! : Transitory provision 301 4S7. Prior offenses subje us laws 301 Section I. MISCELLANEOUS PROVISIONS. 481. Injuries to persons or property — Redress. — Article 105 imposes upon a commanding officer, upon receipt of a complaint that damage !>a- been done to the property of any person, or that his property has been wrongfully taken, by any person subject to military law, the duty to convene a board of officers consisting of any number from one to three to investigate the complaint. The article provides the administrative machinery by which money reparation for acts of waste, spoil, destruction, or depredation, denounced in A. W. 89 as offenses, shall be made effective. The article is not limited to the injuries covered by A. W. 89, but includes also other forms of dam- age to, and wrongful taking of, property, including negligent in- juries thereto. (Dig. Ops. J. A. G., April, 1918, p. 8.) The com- plaint will more properly be made in writing by the injured party or his representative, and should set forth the details of the injury and be sustained by evidence showing it to be meritorious and well founded; and this evidence may also properly be required to be ex- hibited in the form of affidavits or written statements. It is com- petent, however, for a commanding officer, apprised by the report of any person in the military service, or by the oral complaint of the party injured, of any such damage, to proceed with the investigation as here outlined in case of written complaint submitted by or in be- half of the party injured and supported by affidavits or written statement. The board will be convened with the least practicable delay, is empowered to summon witnesses, examine them under oath or affirmation, receive depositions or other documentary evidence. and assess the damages against the person or persons determined to be responsible for the damage or wrongful taking. The board's ssmeni of damages is subject t<> the approval of the commanding officer and an assessment thus approved will be stopped against the pay of the offender. The order of the commanding officer directing stoppages authorized by the article i- conclusive on any disbursing officer for the payment by him to the injured party of the stopp 297 MANUAL FOB < 0TJBTS-MAB1 I \l.. The • >rting to the procedure under this article are more frequent in a period pending or immediately succeeding a time of war, or during field operations and maneuvers. Aj3 the abso- lute identity of the guilty parties can not always be determined, the article further provides that in such :t case, and when the organiza- tion or detachment to which they belong is known, stoppages to the amount of damages inflicted may be made and assessed in such pro- portion as may be deemed just upon the individual members thereof who are shown to have been present with such organization, or de- tachment at the time the damages complained of were indicted, as determined by the approved findings of the board. The guilty parties may be tried and punished for the military offense involved in his and their act under A. W. 89, quite irrespec- tively of any proceeding for the reparation of the parties injured had under this article. A trial, however, will preferably be first ordered, since, if reparation be subsequently sought to be made, the commander and the board will have the benefit of any material facts developed upon the original investigation. So, if the accused be acquitted, such acquittal will furnish persuasive but not necessarily conclusive ground for not favorably entertaining the complaint or for reducing the amount to be assessed. (('. M. 0. M.,No. 4-) 482. Effects of deceased person — Disposition of. — In case of the death of any person subject to military law, the commanding officer of the place of command will permit the legal representative or widow of the deceased, if present, to take possession of all his effects then in camp or quarters, and if no Legal representative or widow be present, the commanding officer shall direct a summary court to secure all such effects; and said summary pourt shall have authority to" collect and receive any debts due decedent's estate by local debtors; and as soon as practicable after the collection of such effects said summary court shall transmit such effects, and any money collected, through the Quartermaster 1 department, at Government expense, to the widow or legal representative of the deceased, if such be found by said court, or to his son, daughter, father, mother, brother, or Bister, in the order named, if such be found by said court, or to the beneficiary named by the deceased, if such 1"' found by said court, and such court shall thereupon make to the War Department a full report of it> transac- tions; but if there be none of the persons hereinabove named, or such ons <>r their addresses are not known to. or readily ascertainable by, said court, and the court shall so limb said summary court shall have authority to convert into cash, by public or private sale, not earlier than 30 daj after the death of the deceased, all effects of the deceased, except sabers, insignia, decorations, medals, watches, trin- . manuscripts, and other articles valuable chiefly as keepsakes; and a-. 3oon a- practicable after converting such effects into cash said summary court -hall deposit with the proper officer, to be desig- nated in regulations, any cash belonging to decedent's estate, and shall transmit a receipt for such deposits, any will or other papers of value MISCELLANEOUS AND TRANSITORY PROVISIONS. 299 belonging to the deceased, any sabers, insignia, decorations, medal.-, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes, together with an inventory of the effects secured by said summary court, and a full account of its transactions to the War Department for transmission to the Auditor for the War Depart- ment for action as authorized by law in the settlement of the accounts of deceased officers and enlisted men of the Army. The provisions of this article shall be applicable to inmates of the United States Soldiers' Home who die in any United Slates military^ hospital outside of the District of Columbia where sent from the homo for treatment. (See Ch. X, Army appropriation act of July 9, 1918 : Public Xo. 193, 65th Cong.) (C. M. ( '. J/.. No. I) 483. Inquests. — Article 113 imposes upon the summary court-martial the principal duties of the office of coroner at common law, viz, to investigate the cause of sudden, violent, and unnatural deaths. When a person is found dead at a place described in the article, and there is reasonable belief that his death has occurred from violence or. other unlawful means, the commanding officer will immediately designate and direct a summary court-martial to investigate the cir- cumstances of the death, to the end that the cause thereof may be determined and the persons criminally responsible therefor may be brought to justice. The summary court-martial will with the least practicable delay view the body of the deceased and summon and examine, under oath or affirmation, such witnesses as may have knowl- edge of the cause and circumstances of the death. The summary court-martial should warn every person testifying at the inquest who is accused or suspected that he is not required to give evidence incriminating himself, and that any statement or evidence he gives may be used against him in the event of any further proceedings be- ing* instituted. If expert medical testimony is necessary, the com- manding officer will, at the request of the summary court-martial, direct a medical officer to make such examination of the body of the deceased as may bo necessary and to appear as a witness at the in- quest. The testimony of each witness will be reduced to writing, and will, except when stenographically reported, be subscribed by him. and will bo appended to the report of the inquest. If the body of the deceased shows wounds or bruises such as to indicate or create suspicion that he came to his death by violent means, it shall be the duty of the summary court-martial to ascer- tain with as much exactness as possible the precise nature of the wounds or blows and the character <>t* the instrument by which the wounds were inflicted: the person or persons by whom the fatal blow or blows were dealt: if there were any aiders or abettors; and such other particulars as may afford the means of drawing up. with the precision required by law. the necessary charges and specifications against the person or persons accused of the homicide. The summary court officer will render a written report of his investigation to the commanding officer, which report will state his MANUAL FOB MARTIAL. f M „i;, to I e death and the names of the persons L ally responsible therefor, if in his opinion there be any such. Such gh not subject to military law, may. if found at United States has exclusive jurisdiction* be y th e C omn , for such time as may be necessary for their delivery to the ci\ il authorities. If such persons are subject to military law and y of an offense not triable by : I ;. . sn ill be confined by the commanding officer, who will immediately furnish the proper United States district attorney with a copy of the findings of the summary court officer. If the person over whose body the inq id is not identified as an officer or soldier, the report of the summary court-martial shall scription of the deceased, which shall specify the name, if known, the apparent age, the sex, the color of the eyes and hair, and all marks or other particulars which may assist in the identification of the person. or form of reporl of Inquest see Appendix 19.] 484. Removal of civil suits. — When any civil suit or criminal prosecu- i ommenced in any court of a State against any officer, soldier, or other person in the military service of the United States on ac- count of any act done under color of his office or status, or in respect to which he claims any right, title, or authority under any law of the United States respecting the military forces thereof, or under the law of war. such suit or prosecution may at any time before the trial or final healing thereof be removed for trial into the district court of the United States in the district where the same is pending in the manner prescribed in section 33 of the act entitled "An Act to codify, n amend the laws relating to the judiciary,'' ap- ed March. 3, 1911 (36 Stat,, 1097), and the cause shall thereupon be entered on the docket of said district court and shall proceed therein as if the cause had been originally commenced in said dis- trict court and the same proceedings had been taken in such suit ution in said district court as shall have been had therein in said State court prior to its removal, and said district court shall ha\e full power to hear and determine said cause. (A. W. 117.) 485. Complaints of wrongs. — Any officer or soldier who believes him- self wronged by his commanding officer, and, upon due application to uch commander, is refused redress, may complain to the general commanding in the locality where the officer against whom the coin- ationed. The general shall examine into said com- plainl and take proper measures for redressing the wrong complained of; and lie shall, as soon as possible, transmit to the Department of War a true statement of such complaint, with the proceedings had thereon. (A. W. 121. ) MISCELLANEOUS AND TRANSITORY PROVISIONS. 301 486. Articles of War— When effective. — Section 3 of the Act of Con- gress entitled "An Act making appropriations for the support of the Army for the fiscal year ending June 30, 1917, and for other purposes," approved August 29, 1916 (39 Stat, 650-GT0), amends section 1342, Revised Statutes of the United States, and contains the Articles of War. It is provided by section 4 of the act cited that the Articles of War will be in force and effect on and after March 1, 1917, except that articles 4, 13, 14, 15, 29, 47, 49, and 92 became effec- tive upon the approval of the act, August 29, 1916. Section II. TRANSITORY PROVISION. 487. Prior offenses subject to previous laws. — It is provided by sec- tion 5 of the act of Congress entitled "An Act making appropriations for the support of the Army for the fiscal year ending June 30, 1917, and for other purposes," approved August 29, 1916 (39 Stat., 670), that all offenses committed and all penalties, forfeitures, fines, or liabilities incurred prior to the taking effect of that act under any law embraced in or modified, changed, or repealed by that act may be prosecuted, punished, and enforced in the same manner and with the same effect as if that act had not been passed. APPENDICES. No, FagP- 1. The Articles of War 305 2. System of courts-martial for National Guard not in the service of the United "States 331 3. Charge sheet 333 4. Forms for charges 335 5. Suggestions for trial judge advocates 351 6. Form for record — General court-martial and revision proceedings 355 7. Form for record — Special court-martial 363 8. Form for record — Summary court-martial 365 9. Forms for sentences 367 10. Forms for action by reviewing authority 369 11. Court-martial orders 373 (a) General court-martial 373 (b) Special court-martial 374 12. Form for interrogatories and deposition 377 13. Subpcena for civilian witness 381 14. Warrant of attachment 385 15. Returns and briefs in habeas corpus proceedings 387 16. Voucher (Form 338): Civilian witness not in Government employ 395 17 . Voucher (Form 350A) : Chilian witness in Government employ 399 18. Voucher (Form 339) : Personal sen-ices, reporter 403 19. Report of inquest 407 303 APPENDIX I. THE ARTICLES OF WAR. TABLE OF CONTENTS. I. Preliminary Provisions : Sec. 1342, Revised Statutes. Art. 1. Definitions. Art. 2. Persons subject to military law. II. Courts-Martial: Art. 3. Courts-martial classified, (a.) Composition — Art. 4. Who may serve on courts-martial. Art. 5. General courts-martial. Art. 6. Special courts-martial. Art. 7. Summary courts-martial. (b) By whom appointed — Art S. General courts-martial. Art. 9. Special courts-martial. Art. 10. Summary courts-martial. Art. 11. Appointment of judge advocates. (c) Jurisdiction — Art. 12. General courts-martial. Art. 13. Special courts-martial. Art. 14. Summary courts-martial. Art. 15. Not exclusive. Art. 16. Officers, how triable. (d) Procedure — Art. 17. Judge advocate to prosecute. Art IS. Challenges. Art. 19. Oaths. Art. 20. Continuances. Art. 21. Refusal to plead. Art. 22. Process to obtain witnesses. Art. 23. Refusal to apf>ear or testify. Art 24. Compulsory self-incrimination prohibited. Art. 25. Depositions — when admissible. Art. 20. Depositions— before whom taken. Ait. 27. Courts of Inquiry — records of— when admissible. Art 28. Resignation without acceptance does not release officer. Art. 29. Enlistment without discharge. Art. 30. Closed sessions. Art 31. Order of voting. Art. 32. Contempts. Art. 33. Records general courts-martiaL Art. 3!. Records— special and summary courts-martial. 53915°— 18 21 305 306 MANUAL FOR OOTJBTB MABTIAL. II. i \.i bts-Mabtial Continued. ,,/ 1 p Continued An .,;, f recoi courts-martial. \n. . •:';. Disposition of records Bpedal and Bummary courts- m ar t ial. Art. :jt. [rregularttlea An. 8fi P ' may prescribe rules. i. i Limitation* upon prosecutions — Art 89. As to time Art 40. A- to number. (/) Punishments— Art ii. Certain kinds prohibited. Art. 42. Places of confinement — when lawful. A,!, i:;. Death sentence— when lawful. Art 44. Cowardice; fraud: accessor; penalty. Art. 45. Maximum limits. (g) Action by appointing or superior authority— Art 46. Approval and execution of situ Art 47. Powers incident to power to approve. Art 48. Confirmation— when required. Art 49. Powers incident to power to confirm. Art 50. Mitigation or remission of sentences. Art.51. Suspension Of sentences of dismissal or death. 52. Suspension of sentence of dishonorable discharge. Art. 53. Suspension of sentences of forfeiture or confinement. III. 1'tNii ivi: Aim i< LES : (a) Enlistment; muster; returns — Art. 54. Fraudulent enlistment. Art 55. Officer making unlawful enlistment. Art..".';. Muster rolls— false muster. Art. .",7. False returns — omission t<> render returns. 1 1, i Desertion; absence int leave — An. 58. 1 ►esertioa Art. 59. Advising <>r aiding another to desert. Art. 80. Entertaining a deserter. Art. id. Absence without leave. (o) Disrespect; Insubordination; mutiny — Art 62. Disrespect toward the President, Vice President, Congress, Secretary of War, governors, legislatures. Art. 63. Disresped toward superior officers. Art 64. Assaulting or willfully disobeying superior officer. Art 65. Iiisulmrdiiiat. nduct toward lio'icommissioned officer. Ait 86. Mutlnj or sedition. 67. Failure to suppress mutiny or sedition. Art 68. Quarrels; frays; disorders, t */ 1 Am st ; oon fin- mrnt — Art 69. Arrest or confinement of accused persons. Art. To. Investigation of and action upon charges. Art. 71. Refusal to receive and keep prisoners. Art.7"_'. Report of prisoners received. Art. 7.".. Releasing prisoner without proper authority. Art 74. Delivery of offenders to civil authorities. (c) War offensi * Art 75. Misbehavior before the enemy. Art. 7t'.. Subordinates compelling commander to surrender, APPENDICES. 307 III Punitive Articles — Continued, (e) War offenses — Continued. Art. 77. Improper use of countersign. Art. 78. Forcing a safeguard. Art. 79. Captured property to be secured for public service. Art. 80. Dealing in captured or abandoned property. Art. 81. Relieving, corresponding with, or aiding the enemy. Art. 82. Spies. (/) Miscellaneous crimes and offenses — Art. S3. Military property— willful or negligent loss, damage, or wrongful disposition of. Art. 84. Waste or unlawful disposition of military property issued to soldiers. Art. 85. Drunk on duty. Art. 86. Misbehavior of sentinel. Art. 87. Personal interest in sale of provisions. Art. 88. Intimidation of persons bringing provisions. Art. 89. Good order to be maintained and wrongs redressed. Art. 90. Provoking speeches or gestures. Art. 91. Dueling. Art. 92. Murder — rape. Art. 93. Various crimes. Art. 94. Frauds against the Government. Art. 95. Conduct unbecoming an officer and gentleman. Art. 96. General article. IV. Coubts of Inquiry : Art. 07. When and by whom ordered. Art. 98. Composition. Art. 99. Challenges. Art. 100. Oath of members and recorder. Art. 101. Powers ; procedure. Art. 102. Opinion on merits of case. Art. 103. Record of proceedings— how authenticated. V. Miscellaneous Provisions: Art. 104. Disciplinary powers of commanding officers. Art. 105. Injuries to person or property— redress of. Art. 106. Arrest of deserters by civil officials. Art. 107. Soldiers to make good time lost. Art. 108. Soldiers— separation from the service. Are. 109. Oath of enlistment. Art. 110. Certain articles to be read and explained. Art. 111. Copy of record of trial. Art. 112. Effects of deceased persons — disposition of. Art. 113. Inquests. Art. 114. Authority to administer oaths. Art. 115. Appointment of reporters and interpreters. Art. lli".. lowers of assistant judge advocates. Art. 117. Removal of civil suits. Art. 118. Officers — separation from service. Art. 119. Rank and precedence among Regulars. Militia, and Volun- Art.120. Command when different corps or commands happen to join. Art. 121. Complaints of wrongs. 308 M AXIAL FOR COURTS-MARTIAL. Table showing Humbert of <>i< 1- 13 56 41 77 >75 . 5 48 It 56 46 Bl 76 109 46 83 46 81 77 4' 111 51 16 84 47 58 7^ t 112 50 17 48 107 79 1.1 113 18 87 4 it 28 1 81 6,9,13 114 111 50 29,00 i 82 6,9,13 115 20 51 59 183 13,14 116 98 21 23 66 67 52 53 54 84 85 86 19 19 117 11s 119 100 101 102 89,'i6o' 24 68 89,105 88 87 120 103 90 88 is' 121 27 91 57 78 89 21 122 12(1 91 58 92,93 90 17 124 119 28 91 59 74 91 25 125 112 29 121 60 2,94 92 19 120 112 30 121 61 95 93 20,70 127 112 31 61 62 93,96 95 31 128 110 81, 82, and 83 were replaced by the act of Mar. 2, 1913 (37 , 1913. specified herein this code becomes effective on » Old articles Tii. 73, 75, siat.. 728), effective July I Note. Except as otherwi March 1, 1917.] /:. it enacted by the Senate ">"' Bouse of Representatives of the United of Aim rial in Congress assembled. ******* si.< . .",. Thai 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: . L342. The articles Included In this section shall be known as the Ar- ticles Of War and shall at all times and in all places govern the armies of the : States. " 1. I'KKI.IMINAKY PROVISIONS. "Ahi nil: 1. I'r The following words when used in these articles shall he construed in the sensr indicated in this Article, unless the context a that a different sense is Intended, namely: i The word • officer' shall be construed i" refer to a commissioned officer; "(lit The word 'soldier' shall he .oust rued as including a noncommissioned Officer, a private, "i- any other enlisted man; "(c) The w.ud 'company' shall he understood as including a troop <>r bat- ti rj : and "(d) The word ' battalion ' shall he underst I as including a squadron. "A1.1. 'J.. I'm;-.. i.iiaky law. — Tin- following persons are sub- Jed t.. these articles and shall he understood as included in the term 'any per- son subject to military law,' or 'persons SUbJed to military law.' whenever used In thi Provided, That nothing COntaJ 1 in this Act, except as specifi- APPENDICES. 309 cally provided in Article two. subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction, unless otherwise specifi- cally provided by law. "(a) All officers and soldiers belonging to the Regular Army of the United Stares; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or-order to obey the same; "(b) Cadets; "(c) Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an Officer or soldier of the Marine Corps when so detached may be tried by military court-martial for an offense committed against the laws for the government of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court-martial after such detachment ceases; '•(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles; "(e) All persons under sentence adjudged by courts-martial; "(f) All persons admitted into the Regular Army Soldiers' Home at Washing- ton, District of Columbia. " II. COURTS-MARTIAL. "Aht. 3. Coukts-martial classified. — Courts-martial shall be of three kinds, namely : " First, general courts-martial ; " Second, special courts-martial ; and " Third, summary courts-martial. "a. composition. "Abt. 4. Who may serve on courts-martial. — All officers in the military service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on rtial for the trial of any persons who may lawfully be brought before such courts for trial. [Note. — This article became effective on August 29, 191G.] i. coi bti -martial. — General courts-martial may consist of any Dumber 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. "Abt. 0. Special cotjbts-mabtial.— Special courts-martial may consist of any number of officers from three to five, inclusive. "Aut. 7. Siwimary courts-martial.— A summary court-martial shall consisl of one of!",' " I). BT WHOM APPOINTED. "Art. 8. Genebal c duets-martial.— The President of the United States, the commanding officer of a territorial division or department, the Superintendent of the Military Academy, the commanding officer of an army, an army corps, a 310 MANUAL FOR OOX7BT8-MABTIAL. division, or de, and, when empowered by tit.- President, the com- piflnfjing officer of any dlstrld or <•!' any force or body of troops may appoint general courts-martial; bul when any sucli commander is the accuser or the cutor of the person <»r persons to be tried, the courl shall be appointed by Buperlor competent authority, and m> officer shall be eligible t<> sit as a member of such court when in- is the accuser <>r a witness fur the prosecution. •w -mm. The commanding officer of a district, gar- . fort, try any person subject to military law for any crime or offense made pun Ishahle by those articles and any other person who by the law of war is subject to trial by military tribunals: Provided, That no officer shall be brought to trial general court-martial appointed by the Superintendent of the Military my. "Art. 18. Special courts-martial. — Special courts-martial shall have power to try any person subject to military law. except an officer, for any crime or capital made punishable by these articles: Provided, That the I'resi dent may, by regulations, which he may modify from time to time, except from the jurisdiction of special courts-martial any class or classes of persons subject CO military law. "Special courts-martial shall not have power to adjudge dishonorable dis- charge, nor confinement in excess of six months, nor to adjudge forfeiture of more than six months' pay. — This article became effective on August 29, 191C] "Art. 11. Summary courts-martial.— Summary courts-martial shall have to try any person subject to military law, except an officer, a cadet, or a soldier holding the pri\ iierres of a certificate of eligibility to promotion, for any .•rime or offense not capital made punishable by these articles: Provided, That noncommissioned officers shall not. if they object thereto, be brought to trial a summary court-martial without the authority of the officer competent to bring them t.» trial before a general court-martial: Provided further, That the President may, by regulations, which he may modify from time to time, ex- APPENDICES. 311 cept from the jurisdiction of summary courts-martial any class or classes of persons subject to military law. " Summary courts-martial shall not have power to adjudge confinement In excess of throe months, nor to adjudge the forfeiture of more than three months' pay: Provided, That when the summary court officer is also the commanding officer no sentence of such summary court-martial adjudging confinement at hard labor or forfeiture of pay, or both, for a period in excess of one month shall he carried into execution until the same shall have been approved by superior authority. [Note. — This article became effective on August 29, 1916.] "Abt.15. Not exclusive. — The provisions of these articles conferring jurisdic- tion upon courts-martial shall not be construed as depriving military com- missions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals. [Note. — This article became effective on August 29, 1916.] "Art. 1C. Officers; how triable. — Officers shall be triable only by general courts-martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank. " D. PROCEDURE. "Art. 17. Judge advocate to prosecute. — The judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented before the court by counsel of his own selection for his defense, if such counsel be reasonably available, but should he, for any reason, be unrepresented by counsel, the judge advocate shall from time to time throughout the proceedings advise the accused of his legal rights. "Art. 18. Challenges. — Members of a general or special court-martial may be challenged by the accused, 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. "Art. 19. Oaths. — The judge advocate of a general or special court-martial shall administer to the members of the court, before they proceed upon any trial, the following oath or affirmation: 'You, A. B., do swear (or affirm) that you will well and truly try and determine, according to the evidence, the matter now before you, between the United States of America and the person to be tried, and that you will duly administer justice, without partiality, favor, or affection, according to the provisions of the rules and articles for the govern- ment of the armies of the United States, and if any doubt should arise, not ex- plained by said articles, thou according to your conscience, the best of your un- derstanding, and the custom of war in like cases; and you do further swear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority, except to the judge advocate and assistant 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.' "When the oath or affirmation has been administered to the members of a general or special court-martial, the president of the court shall administer to the Judge advocate and to each assistant judge advocate, if any. an oath or affirmation in the following form: * You, A. B., do swear (or affirm) that you 312 MANUAL FOR COURTS- M AHTI A I.. will not divulge the findings or sentence of the courl to any but the proper au- thority until they shall be duly disclosed by the same. Bo help you God.' ••Ail persona who give evidence before a court-martial shall be examined on or affirmation In the following Conn: 'Ton Bwear (or affirm) thai the evidence you shall give In the case now in hearing shall be the truth, the whole truth, and oothlng bul the truth. So help you God.' ery reporter of the proceedlnga of a court-martial shall, before entering upon his duties, make oath or affirmation In the following form: Toil swear (or affirm) thai yon will faithfully perform the dutiea of reporter to this help yon God.' ,ry Interpreter In the trial of any case before a court-martial shall, be- i Qterlng upon his duties, make oath or affirmation In the following form: •Yon Bwear (or affirm) thai yon will truly Interprel In the case now In hear- ing. So help yon God. 1 •• in case of affirmation the closing sentence of adjuration will be omitted. .. Al: m amis. A court-martial may, for reasonable cause, grant a continuance to either party for such time and as often as may appear to be Just. "Aim. 21. Refusal TO PLEAD. — When the accused, arraigned before a court- martial, from obstinacy and deliberate design stands mute or answers foreign to the purpose, the courl may proceed to trial and Judgment as if he had pleaded iilty. "Abt.22. Process to obtahs witnesses.— Every Judge advocate of a general <.r special court-martial and every summary court-martial shall have power to the like process to compel witnesses to appear and testify which courts Of the United States, having criminal jurisdiction, may lawfully issue; but such process shall run to any part of the United States, its Territories, and DOS • 8- sions. "Am. 23. Refusal to appeab ob testify.— Every person not subject to mill- Law who, being duly subpoenaed to appear as a witness before any military court, commission, court of inquiry, or hoard, or before any officer, military or civil, designated to take a deposition to be read in evidence before such court, COmn Inquiry, or board, willfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify, or produce documentary evi- dence which such person may have been legally subpoenaed to produce, shall be detuned guilty of a misdemeanor, for which such person shall be punished Oil information In the district court of the United States or in a court of original criminal Jurisdiction In anyof the territorial possessions of the United states, jur- isdiction being hereby conferred upon such courts for such purpose; and it shall e duty of the United States district attorney or the officer prosecuting for men) in any such courl of original criminal jurisdicton. on the certi- fication of the facts to him by the military court, commission, court of Inquiry, ..r hoard, to file an information agalnsl and prosecute the person so offending, and punishmenl of such person, on conviction, shall be a fine of nol more than or imprisonment DOl I months, or both, at the discretion of the court: Provided, Thai the fees of such witness and his mileage, at the allowed to witnesses attending the courts of the United states, shall be duly paid or tendered said witness, BUCh amounts to he paid out of the appro- priation for the compensation of witne "Al • PROHIBITED.- NO witness before a military court, commission, court of Inquiry, or board, «>r before any officer, military <>r civil, designated to take a deposition to be read In evidence before a military court, commit Ion, courl of Inquiry, or hoard, shall be compelled to APPENDICES. 313 incriminate himself or to answer any questions which may tend to Incriminate or degrade him. "Abt. 25. — Depositions — When admissible. — A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence be- fore any military court or commission in any case not capital, or in any pro- ceeding before a court of inquiry or a military board, if such deposition be taken when Che witness resides, is found, or is about to go beyond the State, Territory, or District in which the court, commission, or board is ordered to sit, or beyond the distance of one hundred miles from the place of trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing au- thority that the witness, by reason of age, sickness, bodily infirmity, imprison- ment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases. "Abt. 20. Depositions — Before whom taken. — Depositions to be read in evi- dence before military courts, commissions, courts of inquiry, or military boards, or for other use in military administration, may be taken before and authenti- cated by any officer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths. "Abt. 27. Courts of inquiry — Records of, when admissible. — The record of the proceedings of a court of inquiry may be read in evidence before any court- martial or military commission in any case not capital nor extending to the dis- missal of an officer, and may also be read in evidence in any proceeding before a court of inquiry or a military board: Provided, That such evidence may be adduced by the defense in capital cases or cases extending to the dismissal of an officer. "Abt. 28. Resignation without acceptance does not release officer. — Any officer who, having tendered his resignation and prior to due notice of the acceptance of the same, quits his post or proper duties without leave and with intent to absent himself permanently therefrom shall be deemed a deserter. "Abt. 20. Enlistment without discharge. — Any soldier who, without having first received a regular discharge, again enlists in the Army, or in the militia when in the service of the United States, or in the Navy or Marine Corps of the United States, or in any foreign army, shall be deemed to have deserted the service of the United States; and. where the enlistment Is in one of the forces of the United States mentioned above, to have fraudulently enlisted therein. [Note. — This article became effective on August 29, 1916.] "Art. 30. CLOSED sessions.— Whenever a general or special court-martial shall sit in closed session, the judge advocate and the assistant judge advocate, if any. shall withdraw; and when their legal advice or their assistance in referring to the recorded evidence is required, it shall be obtained in open court and in the presence of the accused and of his counsel if there be any. ••A OTTNG. — Members of a general or special court-martial, in giving their votes, shall begin with the junior in rank. "Abt. 32. I I. — A court-mart iai may punish at discretion, subject to the limitations contained in Article fourteen, any person who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder. "Art. 33. Records — General cxnJBTe-itABTiAL.— Each general court-martial shall keep a separate record of its proceedings in the trial of each rase brought b.-fore it, and such record shall be authenticated by the signature of the presi- dent and the judge advocate; but in cast the record can not be authenticated 314 MANUAL FOB COURTS-MARTIAL. e Judge advocate, by reason of his death, disability, or absence, it shall be -ill. •m and an assistant Judge advocate, if any; and if there ludge advocate, or In case of his death, disability, or absence, t: en bj the president and one other member <>f the court "Ast. 84. Re© v.aky ooubts-mabtiai. — Each special martial and each summary court-martial shall keep a record of its proceed- Beparate tor each case, which record shall contain such matter and h> authenticated In Buch manner as may be required by regulations which the enl may from ii to time prescribe. ••A • TiAT.. — The judge advo- ral court-martial shall, with such expedition as circumstances permit, forward to the appointing authority or to his successor in com- mand the original record of the proceedings of such court in the trial of each da of such proceedings shall, after having been finally acted upon, be transmitted to the Judge Advocate General of the Army. -Aim. .".<;. Disposition of beoobds — Spkhm. and bummary cqtjbts-mabttat. — having horn acted upon hy the officer appointing the court, or by the officer anding for the time being, the record of each trial by special court-martial i report of each trial by summary court-martial shall be transmitted t< d readquarters as the Presidenl may designate in regulations, there to be Bled In the office of the Judge advocate. When no longer of use, records i.d and summary courts-martial may be destroyed. 'Aim. .".7. Irregular] i n .s- -Ki i kct ok. — The proceedings of a court-martial shall not be hold Invalid, nor the findings or sentence disapproved, in any case on the ground of improper admission or rejection of evidence or for any error any matter of pleading or procedure unless in the opinion of the reviewing inflrming authority, after an examination of the entire proceedings, it Bhall appear thai the error complained of has injuriously affected the substan- tial rights of an accused: Provided, Thai the act or omission upon which tin •d has been tried constitutes an offense denounced and made punishable • or more of these articles: Provided further, That the omission of the - 'hard labor' in any sentence of a court-martial adjudging imprisonment mfinemenl shall not he construed as depriving the authorities executing sentence Of imprisonment or confinement of the power to require bard Inbor as a part of the punishment in any case where it is authorized by the \e order prescribing maximum punishments. "A o.kvi may prescribe BtrLEs. — The President may by regula- lo.h be may modify from time 1o time, prescribe the procedure, Includ- ing modes Of proof, In cases before courts-martial, courts of inquiry, militarj commissions, and other military tribunals: Provided, That nothing contrary to Or inconsistent with these articles shall be SO prescribed: Provided further That all rules made in pursuance of this article shall he laid before the Congress annually. LIMITATIONS UPON PROSECUTIONS. "Aim. 89. As to TIME, — Except for desertion committed in time of war. or for mutiny or murder, no person subject to military law shall be liable to be tried or punished by a court-martial tor any crime or offense committed mow than two years before the arraignmenl of such person: Provided, That for de- sertion in time of peace or for any crime or offense punishable under articles ninety-three and ninety-four of this code the period Of limitations upon trial and hmenl by court-martial shall be three years: Provided further, That the of the accused from the jurisdiction of the United States, APPENDICES. 315 « and also any period during which by reason of some manifest impediment the accused shall not have been amenable to military just ire, shall be excluded in computing the aforesaid periods of limitation: And provided further, That this article shall not have the effect to authorize the trial or punishment for any crime or offense barred by the provisions of existing law. "Art. 40. As to number. — No person shall be tried a second time for the same offense. " F. PUNISHMENTS. "Art. 41. Certain kinds prohibited.— Punishment by flogging, or by brand- ing, marking, or tattooing on the body is prohibited. "Art. 42. Places of confinement — When lawful. — Except for desertion in time of war, repeated desertion in time of peace, and mutiny, no person shall under the sentence of a court-martial be punished by confinement in a peni- tentiary unless an act or omission of which he is convicted is recognized as an offense of a civil nature by some statute of the United States, or at the common law as the same exists in the District of Columbia, or by way of commutation of a death sentence, and unless, also, the period of confinement authorized and adjudged by such court-martial is one year or more: Provided, That when a sentence of confinement is adjudged by a court-martial upon conviction of two or more acts or omissions any one of which is punishable under these articles by confinement in a penitentiary, the entire sentence of confinement may be executed in a penitentiary: Provided further, That penitentiary confinement hereby authorized may be served in any penitentiary directly or indirectly under the jurisdiction of the United States: Provided further, That persons sentenced to dishonorable discharge and to confinement not in a penitentiary shall be confined in the United States Disciplinary Barracks or elsewhere as the Secretary of War or the reviewing authority may direct, but not in a penitentiary. "Akt. 43. Death sentence: — When lawful. — No person shall, by general court-martial, be convicted of an offense for which the death penalty is made mandatory by law, nor sentenced to suffer death, except by the concurrence of two-thirds of the members of said court-martial and for an offense in these articles expressly made punishable by death. All other convictions and sen- tences, whether by general or special court-martial, may be determined by a majority of the members present. "Art. 44. Cowardice ; fraud — Accessory penalty. — When an officer is dis- missed from the servce for cowardice or fraud, the crime, punishment, name, and place of abode of the delinquent shall be published in the newspapers in and about the camp and in the State from which the offender came or where he usually resides; and after such publication it shall be scandalous for an officer to associate with him. "Art. 45. Maximum limits. — Whenever the punishment for a crime or offense made punishable by these articles is left to the discretion of the court-martial, the punishment shall not, in time of peace, exceed such limit or limits as the President may from time to time prescribe. " g. action by appointing or superior authority. "Art. 46. Approval and execution of sentence. — No sentence of a court- martial shall be carried into execution until the same shall have been approved by the officer appointing the court or by the officer commanding for the time being. 316 MANT.M. FOB OOUBTB-MABTIAL. "Art. -17. Powers in< ii'i.Ni ro power to approve. The power to approve the sentence of b court-martial shall be held to Include: "(a) The power to approve or disapprove a finding and to approve only so much of a finding <>f guilty of a particular offense ms involves :i finding of guilt; of a lesser Included offense when, in the opinion of the authority having power i" approve, the evidence of record requires a finding of only the Lesser . iiilt ; and "(b) The power 1" approve or disapprove the whole or any part of the sentence. [Note — This article became effective on August 29, ion;.] "Aim. is. Confirmation- When required. — In addition to the approval re- quired by article forty-six, confirmation by the President Is required In the following eases before the sentence of a court-martial is carried into execution, namely : M (a) Any sentence respecting a general officer; ••id) Any sentence extending to the dismissal of an officer, except that in time of war a sentence extending to the dismissal of an officer below the grade of brigadier general may be carried Into execution upon continuation by the commanding general of the Army In the field or by the commanding general of the territorial department or division; "(c) Any sentence extending to the suspension or dismissal of a cadet; and " (d) Any sentence of death, except in the cases of persons convicted in time Of war of murder, rape, mutiny, desertion, or as spies; and in such excepted B Sentence Of death may be carried into execution upon confirmation by the commanding general of the Army in the field or by the commanding general of the territorial department or division. " When the authority competent to confirm the sentence has already acted as the approving authority no additional confirmation by him Is necessary. "Art. -1!>. POWERS INCIDENT TO POWER to CONFIRM. — The power to confirm the sentence of a court-martial shall be held to include: "(a) The power to confirm or disapprove a finding, and to confirm so much only of a finding of guilty of a particular offense as involves a finding of guilty lesser included offense when, in the opinion of the authority having power to confirm, the evidence of record requires a finding of only the les of guilt ; and "(b) The power to confirm or disapprove the Whole or any part of the sen- tence. [Note. — This article became effective on August 29, 1910.] "Art. .".o. Mitigation ob remission of sentences.— The power to order the ttlon of the sentence adjudged by a court-martial shall he held to include, inter alia, the power to mitigate or remit the whole or any pari of the sentence, but no sentence of dismiss! of an officer and no sentence of death shall he mitigated or remitted by any authority inferior to the President "Any unexecuted portion of a sentence adjudged by a court-martial may he mitigated or remitted bj the military authority competent to appoint, for the command, exclusive <\ any other authority. ••The power of remission and mitigation shall extend to all uncollected for- feitures adj ntence of a court-martial. APPENDICES. 317 "Art. 51. Suspension of sentences of dismissal oe death. — The authority competent to order the execution of a sentence of dismissal of an officer or a sentence of death may suspend such sentence until the pleasure of the President be known, and in ease of such suspension a copy of the order of suspension, together with a copy of the record of trial, shall immediately be transmitted to the President. "Art. ~>2. Suspension of sentences. — The authority competent to order the execution of the sentence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as does cot extend to death, and may restore the person under sentence to duty during such suspension. A sentence, or any part thereof, winch has been so suspended may be remitted, in whole or in part, except in eases of persons confined in the United States Disciplinary Barracks or its branches, by the officer who suspended the same, by his successor in office, or by any officer exer- cising appropriate court-martial jurisdiction over the command in which the person* under sentence may be serving at the time, and, subject to the foregoing exceptions, tin- same authority may vacate the order of suspension at any time and order the execution of the sentence or the suspended part thereof in so far as the same shall not have been previously remitted. The death or honor- able discharge of a person under suspended sentence shall operate as a complete remission of any unexecuted or unremitted part of such sentence. (See Ch. X, Army appropriation act of July 9, 1918: Public" No. 193, 65th Cong.) "Art. 53. Execution or remission — Confinement in disciplinary bab- backs. — When a sentence of dishonorable discharge has been suspended until the soldier's release from confinement, the execution or remission of any part of his sentence shall, if the soldier be confined in the United States Disciplinary Barracks, or any branch thereof, be directed by the Secretary of War. (See Ch. X, Army appropriation act of July 9, 1918: Public No. 193, 65th Cong.) " III. Punitive Articles. "a. enlistment; muster; returns. "Art. 54. Fraudulent enlistment. — Any person who shall procure himself to he enlisted in the military service of the United States by means of willful misrepresentation or concealment as to his qualifications for enlistment, and shall receive pay or allowances under such enlistment, shall be punished as a court-martial may direct. "Abt. 55. Officer making unlawful enlistment. — Any officer who know- ingly enlists or musters into the military service any person whose enlistment or muster in is prohibited by law, regulations, or orders shall be dismissed from the service or suffer such other punishment as a court-martial may direct. "Art. 56. Muster rolls — False muster. — At every muster of a regiment, troop, battery, or company the commanding officer thereof shall give to the mustering officer certificates, signed by himself, stating how long absent officers have been absent and the reasons of their ahsence. And the commanding officer r.v troop, battery, or company shall give like certificates, stating how long absent noncommissioned officers and private soldiers have been absent and the reasons of their absence. Such reasons and time of absence Shall be in- serted in the muster rolls opposite the names of the respective absent officers and soldiers, and the certificates, together with the muster rolls, shall be trans- d by the mustering officer to the Department of War as speedily as the distance of the place and muster will admit. Any officer who knowingly makes a false muster of man or animal, or who signs or directs or allows the signing 318 MANUAL FOB COURTS- MARTIAL. of any mustier roll knowing the same to contain a false muster or false state- ment as i" the absence or pay of an officer <>r soldier, <>r who wrongfully takes or other consideration on mustering In a regiment, company, or other ,. or on Blgnlng muster rolls, or who knowingly musters as an officer person who is not such officer or Boldler, shall be dismissed from rtce and Buffer such other punishment as a court-martial may direct •• \ Omissus to bendeb betorns. — Every officer corn- man, □ Independent troop, battery, or company, or a garrison shall, in the beginning of every month, transmit through the proper channels, • Department of War, an exact return of the same. Every officer whose duty it is to render to the War Department or other superior authority a return of the stato of the troops under his command, or of the arms, ammunition, r property thereunto belonging, who knowingly ma ..•turn thereof shall be dismissed from the service and suffer such other punishment as a court-martial may direct. And any officer who. through neglect Ign, omits to render such return shall be punished as a court-martial may ee Ch. X. Army appropriation act of July <). 1918: Public No. 193, 66th Cong.) " It. DESERTION ; ABSENCE WITHOUT LEAVE. "Art. 68. Desertion. — Any person subject to military law who deserts or attempts to desert the service of'the United States shall, if the offense be com- mitted in time of war, suffer death or such other punishment as a court-martial may direct, and, If the offense be committed at any other time, any punish- ment, excepting death, that a court-martial may direct. "Ast. 59. Advising ok aiding another to desebt. — Any person subject to military law who advises or persuades or knowingly assists another to desert the service of the United States shall, if the offense be committed in time of war, suffer death, or such other punishment as a court-martial may direct, and, if the offense he committed at any other time, any punishment, excepting death, that a court-martial may direct. "AST. 80. Ek ii kiaimm; a i Any officer who, after having discovered thai a soldier in his command is a deserter from the military or naval service or from the Marine Corps, retains such deserter in his command without in- forming superior authority or the commander of the organization to which th< ter belongs, Shall he punished as a court-martial may direct. "Abt. 61. Absence without leave. — Any person subject to military law who fails to repair at the ii\ed time to the properly appointed place of duty, or from the same without proper Leave, or absents himself from his command guard, quarters, station, or camp without proper leave, shall be punished as a court-martial may direct. "o. disrespect; insubordination; mutiny. ••A' toward the President, Vice President, Congress, OVEBNORS, LEGISLATURES. Any oflicer who uses contemptu- ous or disrespectful words agalnsl the President, Nice President, the Congress of the United states, ihe Secretary of War, or the governor or Legislature of any State, Territory, or other possession of the United Stales in which he is quartered shall he dismissed from the service or suffer such other punishment as a court-martial may direct Anj other person Bubject to military law who uds shall i.e punished as a court-martial may direct. APPENDICES. 319 "Art. 63. Disrespect toward superior officer. — Any person subject to mili- tary law who behaves himself with disrespect toward his superior officer shall be punished as a court-martial may direct "Art. 64. Assaulting ob willfully disobeying superior officer. — Any person subject to military law who, on any pretense whatsover, strikes his superior officer or draws or lilts up any weapon or offers any violence against him, being in the execution of his office, or willfully disobeys any lawful command of his superior officer, shall suffer death or such other punishment as a court-martial may direct. "Art. 65. Insubordinate conduct toward noncommissioned officer. — Any soldier who strikes or assaults, or who attempts or threatens to strike or assault, or willfully disobeys the lawful order of a noncommissioned officer while in the execution of his office, or uses threatening or insulting language, or behaves in an insubordinate or disrespectful manner toward a noncommis- sioned officer while in the execution of his office, shall be punished as a court- martial may direct. "Art. 66. Mutiny or sedition. — Any person subject to military law win . attempts to create or who begins, excites, causes, or joins in any mutiny oi sedition in any company, party, post, camp, detachment, guard, or other com- mand shall suffer death or such other punishment as a court-martial may direct. "Art. 67. Failure to suppress mutiny or sedition. — Any officer or soldier who. being present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or knowing or having reason to believe that a mutiny or sedition is to take place, does not without delay give information thereof to his commanding officer shall suffer death or such other punishment as a court-martial may direct. •Art. 68. Quarrels; frays; disorders. — All officers and noncommissioned officers have power to part and quell all quarrels, frays, and disorders among persons subject to military law and to order officers who take part in the same into arrest, and other persons subject to military law who take part in the same into arrest or confinement, as circumstances may require, until their proper superior officer is acquainted therewith. And whosoever, being so ordered refuses to obey such officer or .noncommissioned officer or draws a weapon upon or otherwise threatens or does violence to him shall be punished as a court-martial may direct. " D. ARREST ; CONFINEMENT. "Art. 69. Arrest or confinement of accused persons. — An officer charged with crime or with a serious offense under these articles shall be placed in arrest by the commanding officer, and in exceptional cases an officer so charged may l.e placed in confinement by the. same authority. A soldier charged with crime or with a serious offense under these articles shall be placed in confine- ment, and when charged with a minor offense he may be placed in arrest. Any other person subject to military law charged with crime or with a serious offense under these articles shall be placed in confinement or in arrest, as circumstances may require; and when charged with a minor offense such person may be placed in arrest. Any person placed in arrest under the pro- visions of this article shall thereby be restricted to his barracks, quarters, or tent, unless such limits shall be enlarged by proper authority. Any officer who breaks his arrest or who escapes from confinement before he is set at liberty by proper authority shall he dismissed from the service or suffer such other punishment as a court-martial may direct ; and any other person subject to military law who escapes from confinement or who breaks his arrest before 320 MANUAL FOB OOUBTS-MABTIAL. be i> Kl in liberty by proper authority shall be punished as a court-martial may direct •• \ flOATION 01 AMI ACTION UPON CHABGKS. No person put in arreei shall be continued in confinement hh.it than eight days, or until such court-martial can he assembled. When any person is put in arrest f,.r the purpose of trial, except at remote military posts <»• stations, the officer by whose order he is arrested shall Bee that a copy of the charges on which be is to be tried is served apon him within eight days after his arrest, ami that trial within ten days thereafter, unless the necessities of the ■ .(„•), trial; and then he shall he brought to trial within thirty ■ he expiration or said ten days, if a copy of the charges he not , : ,,,. ,!„. arrested person be nol broughl to trial, as herein required, the arrest B ha ' persons released from arrest, under the provisions of tins article, may he tried, whenever the exigencies of the service shall permit, within twelve months after such release from arrest: Provided, That in time of peace no person shall, against his objection, be brought to trial before a general court-martial within a period of live days subsequent to the service of charges upon him. "Art. 71. Refusal to receive ami keep prisoners- No provost marshal or commander of a guard shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United States, provided the officer committing shall, at the time, deliver an account in writing, signed by himself, of the crime or offense charged against the prisoner. Any officer Idler so refusing shall he punished as a court-martial may direct. "Art. 72. EIepobt of pbisokbbs received.— Every commander of a guard to Whose Charge a prisoner is committed shall, within twenty-four hours after such confinement, or as SOOn as he is relieved from his guard, report in writing ti commanding officer the name of such prisoner, the offense charged against him, and the name of the officer committing him; and if he fails to make such report he shall he punished as a court-martial may direct. - A sim; prisoner without proper authority;— Any person sub- ject to military law who. without proper authority, releases any prisoner > uly committed to his charge, or who through neglect or design suffers any prisoner ;.,, committed to escape, shall he punished as. a court-martial may direct. "Art. 7-t. Deliver! or offenders to civil authorities. — When any person BUbjed to military law. except one who is held by the military authorities to answer, or who is awaiting trial or result of trial, or who is undergoing sentence B crime or offense punishable under these articles, is accused of a crime or offense committed within the geographical limits of the States of the Union the District of Columbia, ami punishable h> the laws of the land, the commanding officer is required, except in time of war, upon application duly made, to use his utmosl endeavor to deliver over such accused person to the authorities, or to aid the officers of justice in apprehending and securing him. in order that lie may he broughl to trial. Any commanding officer who upon such application refuses or willfully m spl in time of war. to deliver* over Buch accused person to the civil authorities or to aid the officers m, apprehending and securing him shall he dismissed from the service or suffer such other punishment as a court-martial may direct. "When, under the provisions of this article, delivery Is made to the civil authorities of an offender undergoing sentence of a court-martial, such delivery, i onvictlon, shall in- held to interrupt the execution of the sentence of the court-martial, and the offender shall he returned to military custody, having answered to the civil authorities for his offense, for the co tion of the said court -mart ial sentence. APPENDICES. 321 " E. WAR OFFENSES. "Abt. 75. — Misbehavior before the enemy. — Any officer or soldier who mis- behaves himself before the enemy, runs away, or shamefully abandons or delivers up any fort, post, camp, guard, or other command which it is his duty to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, or by any means whatsoever occasions false alarms in camp, garrison, or quarters, shall suffer death or such other punishment as a court-martial may direct. "Art. 76. Subordinates compelling commander to surrender. — If any com- mander of any garrison, fort, post, camp, guard, or other command is com- pelled, by the officers or soldiers under his command, to give it up to the enemy or i" abandon it, the officers or soldiers so offending shall suffer death or such other punishment as a court-martial may direct. "Art. 77. Improper use of countersign. — Any person subject to military law Who makes known the parole or countersign to any person not entitled to re- ceive it according to the rules and discipline of war, or gives a parole or countersign different from that which he received, shall, if the offense be com- mitted in time of war, suffer death or such other punishment as a court- martial may direct. "Art. 78. Forcing a safeguard. — Any person subject to military law who, in time of war, forces a safeguard shall suffer death or such other punishment as a court-martial may direct. "Art. 79. Captured property to be secured for public service. — All public property taken from the enemy is the property of the United States and shall be secured for the service of the United States, and any person subject to military law who neglects to secure such property or is guilty of wrongful appropriation thereof shall be punished as a court-martial may direct. "Art. 80. Dealing in captured or abandoned property. — Any person subject to military law who buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he shall receive or expect any profit, benefit, or advantage to himself or to any other person directly or in- directly connected with himself, or who fails whenever such property comes into his possession or custody or within his control to give notice thereof to the proper authority and to turn over such property to the proper authority without delay, shall, on conviction thereof, be punished by fine or imprison- ment, or by such other punishment as a court-martial, military commission, or other military tribunal may adjudge, or by any or all of said penalties. "Art. 81. Relieving, corresponding with, or aiding the enemy. — Whosoever relieves the enemy with arms, ammunition, supplies, money, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelli- gence to the enemy, either directly or indirectly, shall suffer death, or such other punishment as a court-martial or military commission may direct. "Art. 82. Spies. — Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encamp- ments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death. "f. miscellaneous crimes AM) offenses. "Art. 83. Military property — Willful or negligent loss, damage, ob wrongful disposition — Any person subject to military law who willfully, or through neglect, Buffers to be lost, spoiled, damaged, or wrongfully disposed of, 53915°— 18 22 MANUAL FOB COURTS MARTIAL. any military property belonging to the United States shall make good the loss <>r damage and suffer such punishment as a court-martial may direct ■•Am B4. Waste ob i wiawtul disposition oj mhjtabx pbopebty issued to \n\ Boldler who Bells or wrongfully disposes of or willfully or through neglect injures or loses any horse, arms, ammunition, accoutermenta, equipment, clothing, or other properly Issued Cor use In the military service, shall i>e punished as a court-martial may direct •Aim. 85. DRUNE on di nr. Any officer who is found drunk on duty shall, if the offense be committed in time of war. be dismissed from the service and suffer such other punishment as a court-martial may direct; and if the offense be committed in time of peace, la- shall lie punished as a court-martial may direct Any person subject to military law, except an officer, who is found drunk on duty shall he punished as a court-martial may direct. "Abt. 86. Misbehaviob oi skxtinel. — Any sentinel who is found drunk or Bleeping upon his post or who leaves it before he is regularly relieved, shall, if the offense !»<■ committed in time of war, suffer death or such other punish- ment as a court-martial may direct; and if the offense be committed in time of peace, he shall suffer any punishment, except death, that a court-martial may direct. "Abt. 87. Personal interest in sale of provisions. — Any officer command- ing in any garrison, fort, barracks, camp, or other place where troops of the United States may he serving who, for his private advantage, lays any duty or imposition upon or is interested in the sale of any victuals or other neces- of lite brought into such garrison, fort, barracks, camp, or other place for the use of the troops, shall be dismissed from the service and suffer such other punishment as a court-martial may direct. "Abt. 88. Intimidation of persons bringing provisions. — Any person subject to military law who abuses, intimidates, does violence to, or wrongfully inter- feres with any person bringing provisions, supplies, or other necessaries to the camp, garrison, or quarters of the forces of the United states shall suffer such punishment as a court-martial may direct. "Art. 89. Good order to be maintained and wrongs redressed. — All persons subject to military law are to behave themselves orderly in quarters, garrison, camp, and on the march; and any person subject to military law who com- mits any waste or spoil, or willfully destroys any property whatsoever (unless by order of his commanding officer), or commits any kind of depreciation or riot, shall In" punished as a court-martial may direct. Any commanding officer who, upon complaint made to him, refuses or omits to see reparation made to the party injured, in so far as the offender's pay shall go toward such repara- tion. :is provided for in article one hundred and five, shall be dismissed from the Service, or Otherwise punished, as a court-martial may direct. "Abt. 90. Provoking speeches or gestures. — No person subject to military law shall use any reproachful or provoking speeches or gestures to another; ami any person subject to military law who offends against the provisions of this article shall be punished as a court-martial may direct. "ART. 91. In elino. An\ person subject to military law who fights or pro- motes or is concerned in or connives at fighting a duel, or who having knowl- edge of ,i challenge sent or about to be sent Calls to report the fact promptly to the proper authority shall, if an officer, be dismissed from the service or suffer such other punishment as a COUrt-martla] may direct; and if any other person subject to military law, shall Buffer such punishment as a court-martial may direct. "Abt. '■»'-'. Mt rdeb Rape. Any person subject to military law who commits murder or rap" -hall Buffer death or imprisonment for life, as a court-martial APPENDICES. 323 may direct; but no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace. [Note. — This article became effective on August 29, 191G.] "Art. 93. Various crimes. — Any person subject to military law who commits manslaughter, mayhem, arson, burglary, robbery, larceny, embezzlement, per- jury, assault with intent to commit any felony, or assault with intent to do bodily harm, shall be punished as a court-martial may direct. "Abt. 04. Frauds against the Government. — Any person subject to military law who makes or causes to be made any claim against the United States or any officer thereof, knowing such claim to be false or fraudulent ; or " Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States, or any officer thereof, knowing such claim to be false or fraudulent ; or " Mho enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or payment of any false or fraudulent claim ; or " Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or against any officer thereof, makes or uses, or procures, or advises the making or use of, any writing or other paper knowing the same to contain any false or fraudu- lent statements ; or " Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or 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 " 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 coun- terfeiting of any signature upon any writing or other paper, or uses, or pro- cures, or advises the use of any such signature, knowing the same to be forged or counterfeited ; or " Who, having charge, possession, custody, or control of any money or other property of the United States, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any person having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt ; or " Who, being authorized to make or deliver any paper 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 in- tent to defraud the United States ; or "Who steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the United States furnished or intended for the military service thereof; or " Who knowingly purchases or receives in pledge for any obligation or in- debtedness from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipment, ammuni- tion, clothing, BnbSlStence stores, or oilier property Of the United States, such soldier, officer, or other person not having lawful right to sell or pledge the same; MANUAL FOB OOUBTS MARTIAL, ■•shall, on conviction thereof; be punished by fine or Imprisonment, or by Midi other punishment as a court-martial may adjudge, or by any or all of S :ii,i . \ 1 1 . i it" any person, being guilty of any of tiu- offenses aforesaid while in the military service of the United states, receives his discharge or is dismissed from the Bervice, 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 extent as if he had ool received such discharge nor been dismissed. ••.\ mini; an OFFIOTH iman. — Any officer or ; who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. "ABT. 98. Cimkm UtTICXE. — Though not mentioned in these articles, all dis- orders and DeglectS to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon tbe military service, and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court-martial, ding to the nature and degree of the offense, and punished at the dis- cretion of such court. " IV. COURTS OF INQUIRY. "Ai:r. !i7. When and bt whom ordered. — A court of inquiry to examine into the nature of any transaction of or accusation or imputation against any officer or soldier may be ordered by the President or by any commanding officer; but a court of Inquiry shall not be ordered by any commanding officer except upon [uesl of the officer or soldier whose conduct is to be inquired into. \!:r. 98. Composition. — A court of inquiry shall consist of three or more I or each court of inquiry the authority appointing the court shall appoint a recorder. "Art. 99. Challenges. — Members of a court of Inquiry may be challenged by the party whose conduct is to be inquired into, but only for cause stated to the court. The court shall determine the relevancy and validity of any challenge, and shall not receive a challenge to more than one member at a time. The party whose conduct is being inquired into shall have the right to be repre- sented before tbe court by counsel of his own selection, if such counsel be reasonably available. "Akt. 100. Oath op members and recorders. — The recorder of a court of Inquiry shall administer to the members the following oath: * You, A. 15.. do swear (or affirm) that you will well and truly examine and inquire, according to the evidence, into the matter now before you, without partiality, favor, affection, prejudice, or hope of reward. So help you God.' After which the .ni of the curt shall administer to the recorder the following oath: ' Ymi. A. I'... do swear (or affirm) that you will, according to your best abilities. accurately and Impartially record the proceedings of the court and the evidence to be given in the case iii bearing. So help you God.' " In case of affirmation the closing sentence of adjuration will be omitted. "A . A courl of inquiry and the recorder thereof ■hall have the same power to summon and examine witnesses as is given to courts -martial and the judge advocate thereof. Such witnesses shall take the oath or affirmation that is taken by witnesses before courts-martial. A re- porter or an Interpreter for a court of inquiry shall, before entering upon his • ii ath or affirmation required of a reporter or an interpreter for a court-martial. The party whose conduct is being inquired into or his counsel, If any. shall he permitted to examine am] cross-examine witnesses so as fully to Investigate the circumstances in question APPENDICES. 325 "Art. 102. Opinion oh mkkits of cask. — A court of inquiry shall not give an opinion on the merits of the case inquired into unless specially ordered to do so. "Abt. 103. Record of proceedings— How authenticated.— Each court of in- quiry shall keep a record of its proceedings, which shall be authenticated by the signature of the president and the recorder thereof, and he forwarded to the convening authority. In case the record can not be authenticated by the recorder, by reason of his death, disability, or absence, it shall be signed by the president and by one other member of the court. " v. miscellaneous provisions. "Art. 104. Disciplinary powers of commanding officers. — Under such regu- lations as the President may prescribe, and which he may from time to time revoke, alter, or add to, the commanding officer of any detachment, company, or higher command may, for minor offenses not denied by the accused, impose disciplinary punishments upon persons of his command without the inter- vention of a court-martial, unless the accused demands trial by court-martial. "The disciplinary punishments authorized by this article may include admonition, reprimand, withholding of privileges, extra fatigue, and restriction to certain specified limits, but shall not include forfeiture of pay or confine- ment under guard. A person punished under authority of this article, who deems his punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority, but may in the meantime be required to undergo the punishment adjudged. The commanding officer who imposes the punishment, his successor in command, and superior authority shall have power to mitigate or remit any unexecuted portion of the punishment. The imposition and enforcement of disciplinary punishment under authority of this article for any act or omission shall not be a bar to trial by court-martial for a crime or offense growing out of the same act or omission; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty. "Abt. 105. Injuries to person of property — Redress of. — Whenever com- plaint is made to any commanding officer that damage has been done to the property of any person or that his property has been wrongfully taken by per- sons subject to military law, such complaint shall be investigated by a board consisting of any number of officers from one to three, which board shall be convened by the commanding officer and shall have, for the purpose of such investigation, power to summon witnesses and examine them upon oath or affirmation, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by such board shall be subject to the approval of the command- ing officer, and in the amount approved by him shall he stopped against the pay of the offenders. And the order of such commanding officer directing stoppages herein authorized shall he conclusive on any disbursing officer for the payment by him to the injured parties of the stoppages so ordered. " Where the offenders can not be ascertained, but the organization or detach- ment to which they belong is known, stoppages to the amount of damages inflicted may be made and assessed in such proportion as may be deemed just upon the individual members thereof who are shown to have heen present with such organization or detachment at the time the damages complained of were inflicted as determined by the approved findings of the hoard. 826 MANUAL FOR COURTS-MA I: I 1AL. •■Ai.r. L06. Abb bi i nn. w i icialb. It shall be lawful for any civil officer baring authority under the laws of the United States, or of any trlct, or possession of th<- United states, to arrest of- Minarily t.» aireel B deserter from the military service of the United and deliver him Into the Custody Of the military authorities of the United st;. "Abt. I117. Sni dtj us 10 xt \ir criminal prosecu- tion is commenced In any court of a State agalnsl any officer, soldier, or other a in the military Bervlce of the United States on accounl of any ad done under color of bis office or Mams, or In reaped to which be claims any right, title, or authority under any law of the United States respecting the military thereof, or under the law of war, such suit or prosecution may at any time before the trial or final hearing thereof be removed for trial Into the distrid courl of the United States in the district where the same is pending In the manner prescribed in section thirty-three of the Ad entitled 'An Ad to codify, revise, and amend the laws relating to the judiciary,' approved March three, nineteen hundred and eleven, and the cause .shall thereupon he entered on the docket of said district court and shall proceed therein as if the cause hail been originally commenced in said district court and the same proceedings had been taken in such suit or prosecution in said district court as shall have been had therein in sai.l Slate court prior to its removal, and said district court shall have full power to hear and determine said cause. •• Art. 11^. Ofj icebs, sepab \ i com i row beevice. — No officer shall be discharged or dismissed from the service except by order of the President or by sentence of eral 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; hut the Presidenl may at any time drop from the rolls of the Army any officer who has been absent from duty three months without leave or who has been absent iii confinement in a prison or penitentiary for three months after final conviction by a courl of competent jurisdiction. "ART. ll'.i. RANB AM) PRECEDENCI \\tov<; ReOTTLABS, MlllliA. A1TO Voi.rv- That in time of war or public danger, when two or more officers of the same grade are mi duty in the same field, department, or command, or of or- ganizations thereof, the Presidenl may assign the command of the forces of such held, depart at, or command, or of any organization thereof, without ; t.i seniority of rank in the same grade. In the absence of Such assign- ment by the President, officers of the same grade shall rank and have precedence in the following order, without regard to dale of rank or commission as be- tween officers of different classes, namely: First, officers of the Regular Army Mid officers of the .Marine Corps detached for service with the Army by order of the Preslden Becond, officers of forces drafted or called into the service of the United si.ncv; and, third, officers of the volunteer forces: Provided, That officers of the Regular Army holding commissions in forces drafted or called into the service of the United Stales or In the volunteer forces shall rank and have precedence under said Commissions as if they were commissions in the lar Army: the rank ot officers of the Regular Army under commissions in the National Guard as such shall not, for the purposes of this article, he held to antedate the acceptance of such officers into the servh f the United states under said commissions. •• \ • WHEN DIFFERENT 00BP8 OR COMMANDS HAPPEN TO JOTN. When different corps or commands of the military forces of 1 he United States happen to join or do duty together the Officer hlghesl in rank of the line of the Regular Army, Marine Corps, forces drafted or called into the service of the United States, or Volunteers, there on duty, shall, Bubjed to the provisions of APPENDICES. 329 the last preceding article, command the whole and give orders for what is needful in the service, unless otherwise directed by the President. ■• Akt. 121. Complaints ok wbongs. — Any officer or soldier who believes himself wronged by his commanding officer, and, upon duo application to such com- mander, is refused redress, may complain to the general commanding in the locality whole the officer against whom the complainl is made is stationed. The general shall examine inio said complaint and take proper measures for redress- ing the wrong complained of; and he shall, as soon as possible, transmit to the Department of War a true statement of such complaint, with the proceedings had thereon." Sec. 4. The provisions of section three of this Act shall take effect and he in force on and after the first day of March, nineteen hundred and seventeen: Provided,, That articles four, thirteen, fourteen, fifteen, twenty-nine, forty- seven, forty-nine, and ninety-two shall take effect immediately upon the ap- proval of this Act. Se< . 5. That all offenses committed and all penalties, forfeitures, fines, or lia- bilities Incurred prior to the taking effect of this Act, under any law embraced in or modified, changed, or repealed by this Act. may he prosecuted, punished, and enforced in the same manner and with the same effect as if this Act had not been passed. Sec 6. All laws and parts of laws in so far as they are inconsistent with this Act are hereby repealed. Act of August 29, 1916 (39 Stat., 650-670). C. M. C. M., No. //. APPENDIX 2. SYSTEM OF COURTS-MARTIAL FOR NATIONAL GUARD NOT IN THE SERVICE OF THE UNITED STATES. Sec. 102. Except in organizations in the service of the United States, courts- martial in the National Guard shall be of three kinds, namely, general courts- martial, special courts-martial, and summary courts-martial. They shall be constituted like, and have cognizance of the same subjects, and possess like powers, except as to punishments, as similar courts provided for by the laws and regulations governing the Army of the United States, and the proceedings of courts-martial of the National Guard shall follow the* forms and modes of procedure prescribed for said similar courts. Sec. 103. General courts-martial of the National Guard not in the service of the United States may be convened by orders of the President, or of the gov- ernors of the respective States and Territories, or by the commanding general of the National Guard of the District of Columbia, and such courts shall have the power to impose fines not exceeding $200 ; to sentence to forfeiture of pay and allowances; to a reprimand; to dismissal or dishonorable discharge from the service; to reduction of noncommissioned officers to the ranks; or any two or more of such punishments may be combined in the sentences imposed by such courts. Sec 104. In the National Guard, not in the service of the United States, the commanding officer of each garrison, fort, post, camp, or other place, brigade, regiment, detached battalion,. or other detached command, may appoint special courts-martial for his command; but such special courts-martial may in any case be appointed by superior authority when by the latter deemed desirable. Special courts-martial shall have power to try any person subject to military law, except a commissioned officer, for any crime or offense made punishable by the military laws of the United States, and such special courts-martial shall have the same powers of punishment as do general courts-martial, except that 4nes imposed by such courts shall not exceed $100. Sec 105. In the National Guard, not in the service of the United States, the commanding officer of each garrison, ■ fort, post, or other place, regiment or corps, detached battalion, company, or other detachment of the National Guard may appoint for such place or command a summary court to consist of one officer, who shall have power to administer oaths and to try the enlisted men of such place or command for breaches of discipline and violations of laws gov- erning such organizations; and said court, when satisfied of the guilt of such BOldier, may impose fines not exceeding $25 for any single offense ; may sentence noncommissioned officers to reduction to the ranks; may sentence to forfeiture of pay and allowances. The proceedings of such court shall be informal, and the minutes thereof shall be the same as prescribed for summary courts of the Army of the United Si: Sec 100. All courts-martial of the National Guard, aol In the service of the United States, Including summary courts, shall have power to sentence to con- 331 332 MANUAL FOR COURTS- MARTIAL. i ilea <>r Ones authorised to be Imposed: Provided, That such sen- infinemenl siiail doI exceed one day for each dollar of fine authorized. entence of dismissal from the Bervice or dishonorable discharge, Imposed by b National Guard court-martial, not in the service of the United States, Bhi tod untU approved l>y the governor of the State or Terri- tory concerned, or by the commanding general of the National Guard of the D Columbia. 108. in the National Guard, not in the service of the United States, i . courts-martial and summary court officers shall have power to warrants to arrest accused persons and to bring them before the court fur trial whenever such persons shall have disobeyed an order in writing from onvening authority to appear before such court, a copy of the charge or charges having been delivered to the accused with such order, and to issue subpoenas and subpoenas duces tecum and to enforce by attachment attendance of witnesses and the production of books and papers, and to sentence for a refusal to be sworn or to answer as provided in actions before civil courts. All pro© sentences of said courts shall be executed by such civil may be prescribed by the laws of the several States and Terri- tories, and in any State where no provision shall have been made for such action, and in the Territories and the District of Columbia, such processes and sentences Bhall be executed by a United States marshal or his duly appointed deputy, and it shall he the duty of any United States marshal to execute all such processes and sentences and make return thereof to the officer issuing or og the same. (Act of June 3, 1916, 39 Stat., 208, 209.) APPENDIX 2a. FORM OF ORDER APPOINTING A GENERAL COURT-MARTIAL. Headquarters Department (Division) , , , 19—. Special < >rders, I No. — . f A general court-martial is appointed to meet at , , at , on . 19 — . or as soon thereafter as practicable, for the trial of such per- sons as may be properly brought before it. DETAIL FOB THE COVRT. Col. , 5th Cavalry. Lieut. Col. , 1st Infantry. Lieut. Col. . 3d Artillery. Maj. , 4th Infantry. Maj. . 3d Artillery. Capt. , 4th Infantry. Capt. . 5th Cavalry. Capt . 1st Infantry. Capt. , 3d Artillery. Capt. , 5th Cavalry, judge advocate. First Lieut. , 3d Artillery, assistant judge advocate. The president is authorized to employ a reporter. (If less than 13 members are detailed on a general court-martial the order will state:) A greater number of officers can not be convened without manifest injury to the service. (In case travel is necessary, the following sentence will be added:) The travel directed in compliance with this order is necessary in the military service. By command of Maj. Gen. : Department (Division) Adjutant. (C. M. C. M., No. J,.) 332a APPENDIX 2b. FORM OF ORDER APPOINTING A SPECIAL COURT-MARTIAL Headquarters . . 19—. Special < >rders, 1 No.—. f A special court-martial is appointed to meel at . — a1 , on . 19—, or as soon thereafter as practicable, for the trial of such persons as may be properly brought before it. DETAIL FOR THE COURT. Ma.i. , 1st Infantry. Capt. — , 3d Cavalry. Capt , 4th Artillery. First Lieut. . 3d Cavalry. First Lieut. . 1st Infantry. , 4th Artillery, judge advocate. (In case the appointing authority desires that the testimony be reduced to writing, the following sentence will be added:) The testimony will be reduced to writing, and the president is authorized to employ a reporter. By order of Col. : Idjutant. (C. M. C. M., No. 4.) mB APPENDIX 3. I 1 KO.VI. | Charge sheet. Number < In Bummarj courl record.) , 19—. (Surname.) (Christian name.) (Number. ) (Grade.) (Company and regiment, or corps, or department.) Date of current enlistment, , 10—: age at enlistment, years months. Rate of pay. $ . Class A allotment, $ per month. Class B allotment, $ per month. Allotment for insurance premium, $ per month. Liberty loan allot- ments, $ per month. Prior service, — — • (Give dates, with character given on each discharge.) Number of previous convictions, . Date of arrest, , 19 — , or confinement, , 19- Place where accused is now in arrest or confinement. Witnesses ; Chasqe: Violation of the Article of War. Specification: Form No. 594, A. <:. O. | HACK.] Pleas Findings Sentence Findings in arresl ( or confinement ), ; maximum punishment, Remarks : Entered on pay card" (forfeiture only) and on repori of changes structions), . (Initials of personnel adjutant.) Entered on service record in cases of conviction (see Instructions), . i Initials of company or detachment commander.) Note.— Except as noted in the Instructions, the above spares are Intended only for use for record purposes at the headquarters of the officer appointing the special or general court-martial, ami it is nol Intended that they shall lie filled in by summary courts, trial judge advocates, etc. 53915°_18 23 333 ;;;; 1 MANUAL FOB C0TJBT8-MABTIAL. l \si l;i ' riONS. fore preparing charges on this form the Instructions given In Appendix 3, Manual for Courts-Martial, will be carefullj considered". The Initials of the personnel adjutant Indicating entry on pay card when for- feiture is awarded and on report of changes In case of conviction, and the Initials of ti' mpanj or detachment commander Indicating entry on Bervice conviction, will be placed on the original charge sheet of sum- mary courts-martial completed as the record of trial. (See par. 3 (a), [nstruc- 3 M. C. M.) ! RU< 1 KINS. The following Instructions will be carefully considered In connection with the preparation of charges to be tried before courts-martial: 1. Submission of charges.— All charges for trial by cowt-martial will be red in triplicate, using the prescribed charge sheet as a first sheet and additional sheets of ordinary paper as ate required. They will be apanied — I,.- I Except when trial is to he had by summary court, by a brief statement of the substance of all material testimony expected from each material witness, both those for the prosecution ami those for the defense, together with all available and necessary information ;is to any other actual or probable testi- mony or evidence in the case; and (6) in the case ..f a soldier, by properly authenticated evidence of convic- tions, if any. of an offense or offenses committed by him during his current enlistment and within one year next preceding the date of the alleged commis- sion by him of any offenses set forth in the charges. They will he forwarded by the officer preferring them to the officer Imme- diatelj exercising summary court-martial jurisdiction over the command to which the accused belongs and will by him and by each superior commander int.. whose hands they may come either he referred to a court-martial within his jurisdiction for trial, forwarded to the next superior authority exercising court-martial jurisdiction over the command to which the accused belongs or pertains, or otherwise disposed of as circumstances may appear to require. (M.C. M.. par. 75.) 2. Investigation of charges.— Tf the officer immediately exercising summary court-martial jurisdiction over the command to which the accused belongs or pertains decides to forward the charges to superior authority, he will, before so doing, either carefully Investigate them himself or will cause an officer other than the officer preferring the charges to Investigate them carefully ami to report to him. orally or otherwise, the result of such investigation. The officer Investigating the charges will afford to the accused an opportunity to make any statement, offer any evidence, or present any matter in extenuation that lie may desire to have considered in connection with the accusation against him. If the aCCU8ed desires to submit nothing, the indorsement will so stale. Iii his indorsement forwarding the charges to superior authority the command- ing Officer will include : i f the officer who Investigated the charges; he opinion of both such officer and himself as to whether the several • he sustained ; I be substance of such material statement, if any, as the accused may have voluntarily made in connection with the ease during the investigation thereof; APPENDICES. 334A (d) A summary of the extenuating circumstances, if any, connected with the case ■S. Disposition of copies of charges. — (a > When trial is to be had by summary court the original charge sheet will be completed as the record of trial. This record will be delivered to the personnel adjutant who will, after noting neces- sary data on the pay card of the accused, initial it in the plate provided and transmit same to the company or other commander who will, after making the 3sary entries on the service record, initial and return it to the commanding officer who appointed the court, in* whose office it will be carefully preserved for a period of two years, at the end of which time it may be destroyed. A copy thereof will be retained in the office of the commanding officer who ap- pointed the court until the original record has been returned for file, when this copy may be destroyed. The other copy will, with the least practicable delay, be transmitted as the required report of trial to the officer exercising general court-martial jurisdiction over the command, there to be filed in the office of the judge advocate until the statistical information required for the annual report of the judge advocate has been secured, when- it may be destroyed. (b) When trial is to he had by special or general court-martial the charges and one copy thereof will be referred to the trial judge advocate, the copy to be furnished by him to the accused or his counsel, and the other copy will be used for record purposes in the office of the officer appointing the trial court, the top fold of this copy of the charge sheet, in case of trial by general court-martial, being detached at the proper time and forwarded with the record of trial to the Judge Advocate of the Army. (M. C. M., par. 79.) 4. Disposition of evidence of previous convictions. — (a) The evidence of a previous conviction referred to a summary court or to the judge advocate of a special court will, after trial, be returned by him to the appointing authority and will, after action by the latter on the case, be returned to the command to which it pertains. (6) The evidence of a previous conviction referred to the judge advocate of a general court-martial will, after trial, be returned by him direct to the regi- ment or other command to which it pertains, and a certified copy thereof will he attached to the record of trial. (See M. C. M., par. 306.) (O. M. ('. M., No. :,.) APPENDIX 4. FORMS FOR CHARGES AND SPECIFICATIONS. INSTRUCTIONS. The forms for charges and specifications set forth below constitute a general guulo for use in the drafting of charges and specifications under the several es of war. not only for offenses specifically provided for in the forms but also for like offenses not specifically mentioned therein. In preparing charges the following general rules should be observed : (a) When there is more than one charge the charges will be numbered, using the Roman numerals, viz, I, II, etc. (b) When there is more than one specification under a charge the specifica- tions under that charge will be numbered, using the Arabic numerals, viz, 1, 2, etc. (c) The form provided for the charge will not in any case be abbreviated, added to, or deviated from. (d) The several forms provided for specifications will be added to or devi- ated from when circumstances require such addition or deviation, and in charg- ing minor offenses with a view to trial by summary court they may in proper I >e abbreviated. (c) The words inclosed in parentheses or brackets, or both, in the forms for specifications may or may not be used, as circumstances require. (/) The blanks inclosed in parentheses in the forms for specifications indi- cate that a proper substitute may be used. {g) The name of the accused as entered in the specification should, except in a case in which the jurisdiction of the court over the person is not dependent upon his being a person subject to military law (e. g. see A. W., 81 and 82), be accompanied by such descriptive language as will show that he is a person subject: to military law and therefore subject to the jurisdiction of the court. as " Pvt. John Doe, Company , Infantry " ; " Pvt. John Doe, United States Marine Corps, detached for service with the Army, by order of the President"; "John Doe, a retainer to the camp"; "John Doe, a :: accompanying the Army of the United States without the territorial jurisdiction of the United States " ; " John Doe, a person serving with the Army of the United States in the field " ; " John Doe. a general prisoner " ; " John Doe, a person under a sentence adjudged by a court-martial."' i. i The place and date of the commission of the alleged offense will ordi- narily be <:aie.l in the body of the specification and not in a separate line at the end thi (0 The words "officer preferring charge," or words of similar import, will not be used in connection with the signature of the officer who subscribes the charges. SPECIMEN CHARGES. [To be placed on charge sheet. Appendix 3.] CHARGE I: Violation of the 54th Article of War. Specification: In that Pvt. Richard Roe. Company A, Second Infantry, alias* Pvt John Doe, Company F. Twenty-ninth infantry, did, without a discharge from said Company A, Second Infantry, procure himself to be enlisted in the 335 MANUAL i OB 0OUBT8 MARTIAL. military service of the United States al Fori Jay, N. v.. on the 24th day of July. v.»i7. under the nam.- of John Doe, by willfully concealing from Capt. Willi) Medical Corps, a recruiting officer, the fad of his prior enlist- ment in said Company A. Second Infantry, and has al Fdrt -lay. N. v.. since aald date, received allowances under said enlistment CH \K<;K II: Violation of the 58th Article of War. to thai Pvt Richard Roe, Company A. Second Infantry, alias Company F, Twenty-ninth Infantry, did, al Fori Jay, N. v.. on it the 6th day of March, 1917, desert the Bervice of the United states, and did remain absenl In desertion until he was apprehended al Fori Jay. N. Y., on or about July 24, 1917. CHARGE III: Violation of the 96th Article of War. dfication I: In thai Pvt. Richard Roe, Company A. Second Infantry, alias I'M. j onn D ■ Twenty-ninth Infantry, did, at Fort Jay. N. V.. on Or al..>ut Mar.h 6, 1917, Strike iii the face with his list Pvt John \Y. 1 'avis Third Company, Fort Hamilton, then a sentinel In the execution of his duty. Specification 2: In that Pvt Richard Roe, Company A. Second Infantry, alias Pvt J I ompany F, Twenty-ninth Infantry, having at Fort Jay. N. Y., on or about the 6th day of March, 1917, received a lawful order to halt from Third Company, Fort Hamilton, then a sentinel in the execution of his duty, did willfully disobey the same. John Jones, Captain, C. t. 0. FORMS. [See instructions on p. 335.] CHARGE: Violation of the 54th Article of War. 1. Specification: In that Pvt. . Company , Infantry, alio*, Company , Infantry, did. without a discharge from : utry, procure himself to be enlisted in the military service of United States, al . on the day of , 19—, under the name -, i by willfully and falsely representing to — . a recruiting office] that he ha.i never been enlisted in the service of the United states and) by willfully concealing from i , a) (said) recruiting officer (,) the fact of his prior enlistment in said Infantry: and has. at and since said date, received (pay) (allowances) (pay and allowances) under said 2. Specification: In that did procure himself to be enlisted in the mill tary service of the United states, at , on the day of , 19--, (by willfully and falsely representing to , a recruiting officer, that he had been discharged from the service of the United states and) by willfully Baling from t , a) (said) recruiting officer the fact that (. under thi name i ,) he had been discharged [(dishonorably from , on . pursuant to sentence of court-martial) (from , on . bj :, of I ! [convicted of a felony, to wit, 1 [ ] ; and has. at and since Bald enlistment received (pay) (allowances) (pay and allow- thereunder. ::. Specification: In thai - did procure himself to be enlisted in the military service of the United Slater, at — , on the day of , [by willfully and falsely representing to , a recruiting officer, that he had never been Imprisoned in any (jail) (reformatory) (penitentiary) audi by willfully concealing from (— - Id) recruiting officer (.) the fact that (, under the name of . ) he had been imprisoned in a ( reform- at. »ry) (jail) (penitentiary) under a sentence of a civil court; and has, at APPENDICES. 337 and since said enlistment, received (pay) (allowances) (pay and allow- ances) thereunder. 4. Specification: In that did procure himself to be enlisted in the military service of the United States, at , on the day of , 19 — , (by willfully and falsely representing to , a recruiting officer, that he was years of age and) by willfully concealing from ( , a) (said) recruiting officer (,) the fact that he was then (under the age of eighteen years) (a married man) ( ) ; and has, at and since said enlistment, received (pay) (allowances) (pay and allowances) thereunder. CHARGE: Violation of the 55th Article of War. 5. Specification: In that did at , on , unlawfully (enlist) (muster) into the military service of the United States one , who, as he, the said , then well knew, was (a) (an) (insane) (intoxicated) ( ) person (who had been convicted of a felony) (under the age of 16 years) ( ). CHARGE: Violation of the 56th Article of War. 6. Specification: In that ■ did, at , on the day of , 19 — , (sign) (allow to sign) (direct to sign) the muster roll of , for the period to , 19 — , he, the said , then well knowing that the said muster roll contained the name of as soldier and a member of said company and as present for duty therewith, and that the said was (not a soldier) (not a member of said company) (not present for duty) but (a civilian) (a member of company ) (wholly absent from military duty). 7. Specification: In that did, at , on the day of , 19 — , (sign) (allow to sign) (direct to sign) the muster roll of , for the period to , 19 — , he, the said , then well knowing that said muster roll contained a statement that , a private of said , was present and mustered, and that said statement was false in that said was then absent without leave. 8. Specification: In that did, at , on the day of , 19 — , falsely muster as (present) ( ) , when he well knew that said was not (present) ( ), but (absent with leave) ( ). 9. Specification: In that did, at , on the day of , 19 — , falsely muster as a of Company , th Infantry, one , who, as he, the said , then well knew, was not a soldier, but (a civilian) ( ). 10. Specification: In that did, at , on the day of , 19 — , sign the muster roll of , for the period to , 19 — , know- ing at the time that said muster roll contained a statement that was (present) ( ), and knowing at the time that said was not (pres- ent) ( ), but (absent with leave) ( ). 11. Specification: In that did, at , on or about the day of , 19 — , wrongfully take from (the sum of $ ) ( ), as a consideration to him , for knowingly permitting the muster-in roll of on the mustering in of that to falsely show as (mus- tered in) ( ), , who, as he, the said , (ben well knew, was (were) not (mustered in) ( ). 12. Specification: In that did, at , on or about the day of , 19—, wrongfully take from the sum of $ , as a consid- eration to him , for allowing the muster roll of , for the period of to , 19 — , to show as (presenl and mustered) ( ), when, as he, the said , (hen well knew, he (they) was (were) not present and mustered a> shown on said muster roll. 338 MAMA!. FOB 0OURT8 M ARTTAL. ( II URGE: Violation of (he 57th Article of War. ation: in that , being In command of , and it being hi; duty i.. render t<> the a return <>f the state of (the troops under his com- mand i nil-' thereto belonging) for the period to , did, at . on tin' day of , 19 — , make a return of for said I, which in- then knew t-> he false in thai it showed as (absent with •i ( ), whereas Hie said — was, as lie. the said . then well knew, (absent without leave) ( ). n. Specification: in that , being in command of . and it being his duty to render to the a return of the state of (the troops under his command) (the thereto belonging) for the period to , did (on and alter the day of , 19 — ) (from until ), through (neglect : " render such return. CHARGE: Violation of the 58th Article of War. in. Specification: In that did, at , on or about the day . 19 . attempt to desert the service of the Tinted States by (seeking ■ to on the steamship ) ( ). ition: In that did, at , on or ahout the day . 19 — , in the (execution of ,i conspiracy to desert the service of the United States previously entered into with and ) (presence of — . which the forces of which he was a member were then oppoE attempt to desert the service of the United States by (seeking passage to steamship ) ( ). (C. M. C. M. No. — , Apr. — .1917.) 17. Specification: In that did, at , on or about the day of . in — . desert the service of the United States, and did remain absent in lion until he (was apprehended) (surrendered himself) at on or ahout the day of , 19 — , Specification: In that did, at on or ahout the day of . 1!( . in the (execution of a conspiracy to desert the service of the I States previously entered into with and ) (presence of , which tii'' forces of which the accuse/l was a member were then oppos- ing), desert the service of the United States and did remain absent in desertion until he (was apprehended) (surrendered himself) at on or ahout the day of , 19—. 19. Specification: In that and did, at , on or about the day of , 19 — , acting jointly, in pursuance of a common Intent and in the execution of a conspiracy to desert the service of the United states prevl- entered into by them (and in the presence of , which the forces of Which they were members were then opposing), desert the service of the United Stat.', ami did remain absent in desertion until they (were apprehended) (sur- ed themselves i at on or about the • — day of , 19 — . CHARGE: Violation of the 59th Article of War. 20, Specification: In that did, at , on or ahout the day of . L9 . (advise) (persuade) to desert the service of the United by (saying In him , or words to that (offering him a position as at ). '_'i. Specification: In that ■ did, at , on or ahout the day of . 19 . knowinglj assist — to desert the Bervice of the United (by supplying him with a railroad ticket from to ) ( ), he, the said , then well knowing that the said intended to use the (railroad ticket) ( ) so supplied him in furtherance of his to desert APPENDICES. 33S CHARGE: Violation of the 60th Article of War. 22. Specification: In that , having discovered that , a soldier in his command, was a deserter from the (military service) (naval service) (Marine Corps) did, at , from about the day of , to about the day of , 19 — , retain said deserter in his command without informing superior authority or the commander of the organization to which the deserter belonged of the presence of said deserter in his command. CHARGE: Violation of the 61st Article of War. 23. Specification: In that , did, at , without proper leave, absent himself iron, his from about , 19 — , to about , 19 — . 24. Specification: In that did, at , on or about the day of , 19 — , fail to repair at the fixed time to the properly appointed place (of assembly) for . 25. Specification: In that did, at , on or about the day of , 19—, without proper leave, go from the properly appointed place (of assembly) for , after having repaired thereto for the performance of said duty. CHARGE: Violation of the 62d Article of War. 26. Specification: In that did, at , on or about the day of , 19—, use (orally and publicly) ( ) the following (contemptu- ous) (disrespectful) (contemptuous and disrespectful) words against the of the (United States) ( in which he was then quartered), to wit : , or words to that effect. CHARGE: Violation of the 63d Article of War. 27. Specification: in that did, at , on or about the day of , 19—, behave himself with disrespect toward , his superior officer, by (saying to him ; , or words to that effect) (contemptuously turning from and leaving him while he was talking to him the said ) ( ). CHARGE: Violation of the 64th Article of War. 2S. Specification: In that . having received a lawful command from , his superior officer, to , did at , on or about the day f 1 19 — , willfully disobey the same. 29. Specification: In that did, at , on or about the ,1;,.. of , 19—, willfully (draw) (lift up) a : against , his superior officer, who was then in the execution of his office. 30. m: In that did, at , on or about the day f f 19_ willfully strike , his superior officer, who was then in the execution of his office, (in) (on) the , with (a) (his) . [Note.— For assaults upon officers amounting to felonies see A. W. 93.] CHARGE: Violation of the 65th Article of War. 31. Specification: In that , bavin- received a lawful order from . who was then in the execution of his office, to , did at , on or ftD0Ut the day of , 19—, willfully disobey the sa.no. 32. Specification: In that did. at . on or about the daj f ,19—. (attempt) (threaten) to (strike) ( ) t(in) (on) the j with m i (his) , while said was in tin- execution o* his office. 33. Specification: In that did, at . on or about the daj of , ]£_ behave in an (insubordinate) (disrespectful) (InsubordlnaU and disrespectful) manner toward , who was then in the execution o* his office, by (saying to him , or words to that effect I ( ). MAM \i I mi; 001 BTB-MABTIAL. Specification: En thai did, at . on or aboul the day i!» . willfully (strike) (assault i , who was then in the execu- ,„,„ . by bim (ini cut the. with (a) (his) . Bsaults ui»"" noncommissioned officers amounting to felonies (II IRGE: Violation of the 66th Article of War. flection: in that did, at , on or about the day f attempt to create a mutiny in by urging the members of refuse to obey the order of , their (commanding) — • n: In thai did, at , on or about the ■ day o mutiny In by unlawfully assuming control over about - - soldiers of said command, and in the execution of such control causing said Boldlers to disregard and defy the lawful orders of , their (commanding) (superior) officer, to (assemble for drill) ( ). flcation: In that did, at , or on about the .lay , 19 — , voluntarily join in a mutiny which bad been begun in agalnsl the authority of , the commanding officer thereof, and did, in combination with sundry other members <>f said assembled on the (parade ground) ( : — ), refuse to (disperse) (do any farther duty) (as- semble for drill) ( ). CHARGE: Violation of the 67th Article of War. ::s. >•/,, ■rjiicatiim: In tbai , being at and knowing on the ,1. IV ,,f 1 19 — p that certain members of proposed and intended to begin and join in a mutiny against the commanding officer of that , at o'clock (a.) (p.) m. on the. following day, did fail (wholly) to give information of said Intended mutiny to his commanding officer (until the hour of on the day of , 19—). Specification: In thai did, at , on or about the day ( ,f , T.i , join with other members Of the and sundry citizens in sin attempt to break into a Jail and release a prisoner, did assault and beat the police officers and other civil authorities, and did commit other disorders until overpowered and restrained by a detachment of sent from the post of and compelled to return to bis quarters. in. Specification: In thai . being present at a mutiny among the sol- - - against the authority of . the commanding officer thereof, did fail to use bis Utmosl endeavor to suppress the same, in that, having com- manded the men of bis own company to return to their quarters, he took no means t«. compel their obedience or reduce them to discipline upon their refusal said command. (II IRGE: Violation of the 68th Article of War. ;i. Specification: in thai . being engaged In a (quarrel) (fray) (dis- order) and bavin- 1 n ordered into (arrest) (confinement) by , did, , on or aboul the - day of , 19—, [(refuse to obey) (draw B upon) the said 1 I threaten the said by (saying to him , or Words t0 thai effect) ( )]. CH IRGE: Violation of the 69th Article of War. Specification: In thai . having been placed in (arrest) (confine- neni ) by his (commanding officer) ( ) on account of being charged with ei. did at- - . on or aboul the daj of , 19 — , : his arresl > (escape from said confinemenl i before he was set at llbei y by proper authority. APPENDICES. 341 CHARGE: Violation of the 71st Article of War. 43. Specification: In that , being on duty as at on or about, the day of , 19—, did refuse to (receive) (keep) one , a prisoner duly committed to his charge by . who, at the time of com- mitting said prisoner, delivered to the said an account in writing, signed by himself, of the (crime) (offense) charged against said prisoner. CHARGE: Violation of the 72d Article of War. 44. Specification: In that — , (having been) (being) on duty as com- mander of the guard at , did, on or about the day of , 19—, fail to report in writing to the commanding officer of that (as soon as reliev-d from his guard) (within 124 hours after the confinement of said prisoner) the name of , a prisoner committed to his charge, the offense charged against him. and the name of the officer committing him. CHARGE: Violation of the 73d Article of War. 45. Specification: In that did, at , on or about the day of ,19—, [without proper authority release] [through (design) (neglect) (suffer) ] , a prisoner duly committed to his charge to escape. CHARGE: Violation of the 74th Article of War. 46. Specification: In that , being at the time the commanding officer at , and an application having been duly made to him by the of for the (delivery) (apprehension and securing) of , a (soldier) (officer) under his command, who was accused of a (crime) (offense) com- mitted against the laws of , did, at , on the day of , !9_ refuse to (deliver said to said of ) (aid the said of in apprehending and securing the said ). CHARGE: Violation of the 75th Article of War. 47. Specification: In that did, at , on or about the day of , 19 — , in disregard of his duty and shamefully (abandon) (deliver up to the enemy) .which (it was his duty) (he had been ordered by , his proper superior officer), to defend. 48. Specification.- In that , while on duty before the enemy, did at ( on the day of , 19 — , cast away his (rifle) (ammunition) ( )• 49. Specification; In that , being (present with) (in command of) his while it was engaged with the enemy, did at , on or abont the day f ( i9_ abandon the said and (seek safety in the rear ) ( ), and did fail to rejoin it until (the engagement was concluded) ( )• 50. Specification: In that did, while on duty before the enemy, cause a false alarm in the (camp) (garrison) (quarters) ( ) at , on or about the day of , 19 — , by needlessly and srithoul authority caus- ing the call to arms to he sounded. 51. Specification; In that did, while on duty before the enemy, quit his (company I ( post ) ( ), at , on the day of the purpose of (pillaging) (plundering) (pillaging and plundering), and did com- mit plunder and pillage on the property of one , a citizen, by forcibly en- tering the house oT said .against his will, and taking therefrom and appro- priating money and effects of the said of the value of $ — . 52. Specification; In thai did, at , on or about the day of , It)—, run away from his (company) ( ), which was then en- MANUAL l'"i: I OUBTS M \l;l IAL. . witii the enemy, and i return thereto until (after tin- engagement I i concluded) ( ). m: in thai . being an (officer) (soldier) of a flora charged with the duty of defending againsl an enemy then before it did at , on or about the day of , 19 — , (induce) (seek n Induce) (soldiers) (soldiers and officers) of that force to shamefully (abandon) (deliver up) t" the enemy that , which it was their duty to defend, i>\ savin.: t<» said (soldiers) (soldiers and officers) , or words to that effect. :. i on; in thai did, at , on or about the day of , 19 , say td , who was then, with his company, engaged with . or words to that effect, thereby (inducing) (seeking to induce! said to [(run away from) (shamefully abandon) his (post)] ( — .• In thai did, at — '■ , on or about the day , 19 say to . who was then on outpost duty before the enemy, , or words to that effect, thereby (inducing) (seeking to induce) the [run away from) (abandon) his (post)] ( ). CHARGE: Violation of the 76th Article of War. ".■ In that ■ , being an (officer) (soldier) under the eom- — . commanding the (fort) (post) (camp) (guard) ( ) of . which was then threatened by the enemy, did, at , on or about day of , 19 — . in combination with other (officers) (soldiers) d soldiers) of said command, by compel said to (sur- rendi on > said (fort) (post) (camp) (guard) ( ) .of to • my. 57. on: In thai , , and , being (officers) (sol- diers) (officers and soldiers) under the command of , who was then commanding the (fort) (post) (camp) (guard) ( ) of , whirl. then threatened by the enemy, did. at , on or aboul the day of . I:- . acting Jointly ami in concert, refuse to perform further duty in said (fort) (post) (guard) ( ) of , and thereby compel the said to (abandon it) (give it up i to the enemy. CHARGE: Violation of the 77th Article of War. Iflcation: in that . having received as the proper (countersign) (parole) the word . did at . on or about the day of , to , a person to whom he knew it was his duty to give the parole), the different word as the proper (counter- ation: In that did. at , on or about the day of . 19—, make known the (countersign) (parole), to wit. , to , by him, . to lie ,-i person not entitled t.. receive it. Violation of the 78th Article of War. n: In that did. at , on or about the day of L9 . Violate a Bafeguard, known by him to have been placed over the I bj , at . by (overwhelming the guard posted for the protection of the same and violently entering said premises and committing and plunder therein) ( ). • ii IRGE: Violation of the 79th Article of War. C!. Sp* ( ifloatiOti: In that did. at , on or ahotil the day of , 19—. wrongfully appropriate to (his own use) ( ) the following APPENDICES. 343 public property taken from the enemy, viz: of the value of about % and of the value of about $ , and all of the total value of about $ . 02. Specification: In that did, at , on or about the day of . 1!) . neglect to secure for the service of the United States the following public property, which bad been taken from the enemy, viz, of the value of aboul $ — and of the value of about $ , and all Of the total value of about $ . CHARGE: Violation of the 80th Article of War. 63. Specification: In that did, at , or about the day of , 19 — , unlawfully (buy) (sell) ( ) the following articles of (captured) (abandoned) property, namely: of the value of about $ and — of the value of about $ , and all of the total value of about $ , thereby [(accepting) (receiving) (accepting and receiving)] [(profit) (benefit) (advantage) (profit, benefit and advantage)] to (himself) [ , his (brother) ( )]. 64. Specification: In that did, at , on or about the day of , 19 — , fail to give notice to proper authority that the following (captured) (abandoned) property had come into his (possession) (custody) (control), namely: of the value of about $ and of the value of about $ , and all of the total value of about $ ■ — . 65. Specification: In that did, at , on or about the day of , 19 — , fail to turn over to the proper authority without delay the following (captured) (abandoned) property which had come into his (posses- sion) (custody) (control), namely: of the value of about $ and of the value of about $ , and all of the total value of about $ . CHARGE: Violation of the 81st Article of War. 66. Specification: In that did, at , on or about the day of , 19 — , inform a patrol of the enemy's forces of the whereabouts of a military patrol of the United States forces. 67. Specification: In that did, at , on or about the day of . 19 — , knowingly (harbor) (protect) (harbor and protect) , a person whom he, the said , then knew to be a member of the enemy's forces, and who was then being sought by a patrol of the United States forces, by (concealing the said member of the enemy's forces in his house) ( ). 6S. Specification: In that did, at , on or about the day of , 19 — , directly (hold correspondence with) (give intelligence to) (hold correspondence with and give intelligence to) the enemy by writing and transmitting secretly through the lines to one , whom he, the said , then knew to be an (officer) ( ) of the enemy's army, a communication (in words and figures as follows) (substantially as follows), to wit. 69. Specification: In that did, at , on or about the day of , 19 — , furnish and deliver to certain members of the enemy's army , of the value of about $ , and , of the value of about $ , all of the total value of $ , he then well knowing Unit the persons to whom said goods were furnished and delivered were enemies of the United States. CHARGE: Violation of the 82d Article of War. 70. Specification: In that did, at , on or about the day of , 19 — , (lurk) (act) (lurk and act) as a spy in and about , the (fortification) (post) (quarters) (encampment) of the Army of the United States there situated, and did there (collect) (attempt to collect) material infor- mation in regard to the (numbers) (resources) (operations) ( ) of the •\ \ \ MAMA!. FOR COURTS-MARTIAL. military forces of ili<- United states, with Intent to impart the same to the enemy. ( I! IRGE: Violation of the 83d Article of War. 71. Specification: In thai - ■ did, at , on or about the day ( ,f , i:> (through neglect) (willfully) Buffer , of the value of .«: , military property belonging t<> the CTnlted States, to be (lost) (spoiled by ) (damaged by ) [wrongfully disposed of by (sale to ) (' )]• CHARGE: Violation of the 84th Article of War. 72, Spa \flcation: In that . Specification: In that , being on guard and posted as a sentinel (in time of war), at , on or about the day of , 19—, was found sleeping on his post. 76. Specification: In that — : , being on guard and posted as a sentinel I in time of war), at , on or about the day of , 19 — , left his post before he was regularly relieved. CHARGE: Violation of the 87th Article of War. 77. Specification: In that , who was thou commanding , did on or aboul the day of , 19 — , become financially interested in the Bale ,,f 1 brought into said for the use of the troops thereat by , by (receiving) (entering into an agreement to receive) from the s;i j,l (_ per have been (lost) (destroyed) in the military service) ( ), which claim was (false) (fraudulent) (false and fraudu- lent) in that and was then known by the said to be (false) (fraudulent) (false and fraudulent). APPENDICES. 347 104. Specification: In that did, at , on or about the day of , 19 — , (present) (cause to be presented by ) for (approval) (payment) (approval and payment) a claim against the (United States) (Quartermaster at ) ( ) in the amount of $ , for (services alleged to have been rendered to the United States by ) ( ), which claim was (false) (fraudulent) (false and fraudulent) in that and was then known by the said to be (false) (fraudulent) (false and fraudu- lent). K)."). Specification: In that did, at , on or about the day of , 19 — , enter into an (agreement) (conspiracy) (agreement and con- spiracy) with , to defraud the United States by (obtaining) (aiding to obtain) the (allowance) (payment) (allowance and payment) of a (false) (fraudulent) (false and fraudulent) claim against the United States in the amount of $ , for (supplies) .( ) alleged to have been fur- nished to the United States by , which claim was (false) (fraudulent) (false and frudulent) in that and was the known by the said to be (false) (fraudulent) (false and fraudulent). 100. Specification: In that , for the purpose of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment) (approval, allowance, and payment.) of a claim against the (United States) (Quartermaster at ) ( ), did, at , on or about the ■ — day of , 19 — , (make) (use) (make and use) a , which said , as he, , then knew contained a statement that , which statement was (false) (fraudulent) (false and fraudulent) in that and was then known by the said to be (false) (fraudulent) (false and fraudulent). 107. Specification: In that , for the purpose of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment) (approval, allow- ance, and payment) of a claim against the (United States) (Quartermaster at ) ( ), did, at , on or about the day of , 19 — , (advise) (procure) (advise and procure) the (making) (use) (making and use) of a by , which said , as he then knew, contained a statement that , which statement was (false) (fraudulent) (false and fraudulent) in that , and was then known by the said to be (false) (fraudulent) (false and fraudulent). 108. Specification: In that , for the purpose, of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the (United States) (Quartermaster at ) ( ), did, at , on or about the day of , 19 — , (make) (procure the making of) (advise the making of) (advise and procure the making of) an oath by that , which said oath was false in that , and was then known by the said to be false. 109. Specification: In that , for the purpose of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment) (approval, allow- ance, and payment) of a claim against the (United States) (Quartermaster at ) ( ), did, at , on or about the day of , 19 — , (forge) (counterfeit) (forge and counterfeit) (the signature of upon a ) (a ) in words and figures as follows: . 110. Specification: In that , for the purpose of (obtaining) (aiding to obtain) the (approval) (allowance) (payment) (approval, allowance. and payment) of a claim against the (United States) (Quartermaster at ) ( ), did, at , on or about the day of , 19—, (advise) (procure) (advise and procure) the (forging) (counterfeiting) (forging and counterfeiting) by of (the signature of upon a ) (a ) in words and figures as follows: . 53915°— 18 24 MAN i " \ i VOB 0OUBT8 M LB I I.M.. in. Specification: in thai , for the purpose of (obtaining) (aiding a in obtain) the (approval) (allowance) (payment) (approval, allow- and payment) of :i claim againsl the (United States) (qaartermaster — ) ( ), did, at , on or about tin* day of , 19 — , (advise the ose of) (procure the use of) a In words and figures its follows : esame) (the signature thereon) being (forged) (counter- I (forged and counterfeited), and then known by the said to be (forged) (counterfeited) (forged and counterfeited). 112. Specification: In that , having (charge) (possession) (custody) (control) of (money) ( ) of the United states, (furnished) (intended) (furnished and Intended) for the military service thereof, did. at , on or aliout the day of 19 — , knowingly (deliver) (cause to be dellverel ) to , the said , having authority to receive the same, (an) i.i'i (amount) (number) (quantity) which, as he, , then knew was ( dollars cents) ( ) less than the (amount) (number) (quantity) f"r which he received a (certificate) (receipt), from the said . 113. Specification: In that , being authorized to (make) (deliver) (make and deliver) a paper certifying the receipt of property of the United (furnished) (intended) (furnished and intended) for the military serv- ice the]-,. >!". did. at , on or about the day of , 19 — , (make) (deliver) (make and deliver) to a writing in words and figures as fol- lows: , without having full knowledge of the truth of the statements therein contained and with the intent to defraud the United States. 111. specification: In that did, at , on or about the day of , 19 — (feloniously take, steal, and carry away) (embezzle) (knowingly and wilfully misappropriate) (apply to his own use) (apply to his own benefit) (apply to his own use and benefit) (wrongfully sell) (knowingly and without proper authority sell) (wrongfully and knowingly sell), of the value of about $ — ■ . property of the United States (furnished) (intended) (furnished and intended) for the military service thereof. 1 1",. Specification: In that did, at , on or about the day of , 19 — , knowingly (purchase) (receive in pledge) from , (in i (employed in) the military service of the United States for an (obliga- tion) (Indebtedness) , of the value of about $ , property of the United States, the said not having the lawful right to (sell) (pledge) the same. CHARGE: Violation of the 95th Article of War. ip;. Specification: In that , being Indebted to various creditors in the sum of about $ and being without either means or probable means with which to liquidate within a reasonable time said Indebtedness, did, at , on or about the day of , 19 — , unnecessarily contract with a further Indebtedness of about $ . 117. Specification: In that was, at , on or about the day of , 19--, so (drunk) (disorderly) (drunk and disorderly) while in uni- form, in the presence and bearing of several persons, as to disgrace the military ■en ice. lis. Specification: In that , having assigned to his claim (againsl the United states) for pay in full for the month of , 19 — , did, at — . <>n or about the — day of - , 19- -. assign to a second claim againsl the United Stales for pay in full for the said month of , 19 — , Which second claim was by him known to he false and fraudulent. 11'.). Specification: In that . being indebted to in the sum of I for , Which amount became due and payable (on) (about) (on or about i . did, at , on or about the day of , 19 — , APPENDICES. 349 without due cause fail and neglect to pay said debt, notwithstanding the fact that he had been repeatedly requested by the said to pay the amount thereof, thereby bringing discredit upon the military service. 120. Specification: In that , having on or about the day of 19 — become indebted to in the sum of about $ for , and having failed without due cause to liquidate said indebtedness, and having on or about the day of , 19 — , promised in writing to said that he would on or about the day of , 19—, (settle such indebtedness in full) (pay on such indebtedness the sum of $ ), did, without due cause, at , on or about the day of 19—, to the disgrace of the military service, fail to keep said promise. 121. Specification: In that , having made and executed in due form his voucher for pay as for the month of , 19 — , and having duly assigned the said voucher to , did at on or about the day of , 19 — , while the said voucher and the assignment thereof remained in force and effect, falsely certify with his official signature, to the correctness of another voucher for pay for the said month of , 19 — , duly made, exe- cuted, and assigned to , which said certificate was in words as fol- lows: . 122. Specification: In that did, at , on or about the day of , 19 — , with intent to deceive , officially (report) (state) to the said , that , which (report) (statement) was (known by the said to be untrue) (believed by the said to be untrue) (made by the said W ith disregard of a knowledge of the facts) (made by the said as true when he did not know it to be true) in that . 123. Specification: In that , with intent to defraud , did, at , on or about the day of , 19 — , unlawfully pretend to that , well knowing that said pretenses were false, and by means thereof did fraudulently obtain from the said (the sum of $ ) (mer- chandise of the value of $ ) ( ). 124. Specification: In that , having at , on or about the day of , 19 — , voluntarily given his pledge in words and figures as fol- lows : , which pledge was accepted by his commanding officer , did, at , on or about the day of , 19 — , in disregard of his honor violate said pledge by . CHARGE: Violation of the 96th Article of War. 125. Specification: In that , being on guard as a , did, at , on or about the day of , 19 — , abandon his guard. [Note. — This form will be used only in case where absence from guard is coupled with an intent not to return during the tour of duty. Ordinary absence from guard duty will be charged under A. W. 61.) 126. Specification: In that did, at , on or about the day of , 19—, [kick a public (horse) ( ) in the belly] ( ). 127. Specification: In that , a (sentinel) (overseer) ( ), being in charge of prisoners, did, at , on or about the day of , 19 — , allow , a prisoner under his charge, to (go to) (enter) (go to and enter) an unauthorized place, to wit: . 128. Specification: In that -, a (sentinel) (overseer) ( ), being in charge of prisoners, did, at , on or about the day of , 19 — , allow , a prisoner under his charge, to (hold unauthorized conversation with ) (loiter) (neglect his task by ) (obtain ) ( ). 129. Specification: In that , a (sentinel) (overseer) ( ), being in charge of prisoners and having received a lawful order from , to 350 MANUAL FOR COURTS-MARTIAL. require :i prisoner under hlfl charge to , did, at , on or alms t i u . ,iuy of , 10— , tail to obey the same. flcation: In (hat did, at , on or about the d;< of . 19 -. without authority, appear in civilian clothing. i:;i. Specification: In that did, at , on or about the daj ppear (at) ton) (withouthis ) (with his do! buttoned) (in an andean ) ( ). 132, Specification: In that ■ did, at , on or about the day of . 10—, attempt to (strike) ( ) (in) (on) the with . [Note. — FV>r assaults upon officers and noncommissioned officers amounting to : A. W. 98.] 13a Specification: in that did, at , on or about the day of , 10—, (strike) ( ) (in) (on) the with . [Xotk. — See note under Specification 132.] 13 I. Bpi ciflcotion: In that did, at (on or about the day of , 19 — ), (between and ), with the intention of evading duty) ( ) as a (soldier) ( ), feign (illness), (disability!. (insanity), ( ). 136, Specification: In that did, at , on or about the day of , 19— (attempt to), (threaten to) (strike) ( ) , a sentinel in tin execution of his duty, [ (in) (on) the ] with . 136. Specification: In that did, at , on or about the day of , 19 — , strike ( ) , a sentinel in the execution of his duty, (in) (on) the with . 137. Specification: In that , a prisoner in confinement serving sentence in the post guardhouse, ( ), did, at , on or about the day of , 19 — , (escape) (attempt to escape) from such confinement. 13S. Specification: In that , a prisoner, did, at , on or about the day of , 19 — , use the following disrespectful language to , n sentinel in the execution of his duty: " ," or words to that effect. l",!t. Specification: In that , having been restricted to the limits of , did, at , on or about the day of , 19 — , break the same by poing to . 140. Specification: In that did, at , on or about the day of , 19 — , unlawfully carry a concealed weapon, viz, a . 1 II. Specification: In that , did. at , on or about the day of , 19 — , (urinate) (defecate) ( ) (on the floor of the squad room) ( )• 1 (2. Specification: In that did, at , on or about the day of , 19— , willfully and unlawfully [(conceal) (remove) mutilate) (ob- literate) (destroy)] [attempt to (conceal) (remove) (mutilate) (obliterate) (destroy)] [take and carry away with intent to (conceal) (remove) (mutilate) (obliterate) (destroy) (steal)] a public record, to wit: (the descriptive list of ) ( )• 143. Specification: In that , a prisoner in confinement in the post guard house. ( ), did, at , on or about the day of lit . conspire with and to escape from such confinement. (Fo: joint charge so.- par. 60.) 1 1 1. Specification: Tn that did, at , on or about the day of , 19 — , willfully destroy , value about $ , property of the United Btat 146. Specification: In that did. at , on or about the da' Of , 10 . through carelessness, discharge a (service rifle) ( ) in hie (squad room) (In his tent) < ). APPENDICES. 351 146. Specification: In that , having received a lawful order from • a sentinel in the execution of his duty, to , did, at , on or about the day of , 19—, (fail to obey) (willfully disobey) the same. 147. Specification: In that was, at , on or about the day of ,19 — , (drunk) (disorderly) (drunk and disorderly) in (camp) (post) (quarters) ( ). 14S. Specification: In that was, at , on or about the day of , 19 — , (drunk) (disorderly) (drunk and disorderly) in uniform and did thereby bring discredit upon the military service. 1-10. Specification: In that , a sentinel ( ) in charge of prisoners, (lid at 1 on or about the day of , 19—, drink intoxicating liquor with , a prisoner under his charge. 150. Specification: In that , a prisoner, was, at , on or about the day of , 19 — , found drunk. 151. Specification: In that , having received a lawful order from to , the said being in the execution of his office, did, at , on or about the day of , 19—, fail to obey the same. 152. Specification: In that did, at , on or about the ■ day of , 19 — , violate (standing orders) (regulations) of by . 153. Specification: In that did, at , on or about the day of , 19 — , wrongfully use , a narcotic drug. 154. Specification: In that , being indebted to in the sum of $ , which amount became due and payable (on) (about) , did, at , on or about the day of , 19 — , without due cause, fail and neglect to pay said debt, notwithstanding the fact that he had been repeatedly requested by the said to pay the amount thereof, thereby bringing discredit upon the military service. 155. 'Specification: In that , having been directed to report for prophy- lactic treatment at (the post hospital) ( ) did, at , on or about the day of , 19 — , fail to report as directed. 156. Specification: In that did, at , on or about the day of , 19 — , with intent to deceive , officially (report) (state) to the said 1 that , which (report) (statement) was (known by the said to be untrue) (believed by the said to be untrue) (made by the said with disregard of a knowledge of the facts) (made by the said as true when he did not know it to be true) in that . 157. Specification: In that , (having) (did on the day of , 19 — ) in a (trial by court-martial of ) (deposition for use in a trial by court-martial of ) ( ) (taken) (take) an oath, before a competent (tribunal) (officer) (person) that [(he would testify) (declare) (depose) (— , loan to $ . under an agreement whereby he, tin- said . was* to receive for tin' a* of ioney for (months) (days) Interest ;U the rate <>f per cent in. nun (month) (the sum of $ ), thereby (demanding) (receiving) (demanding and receiving) an usurious rate of Interesl for said loan. L63. Specification: In that , while posted :is a sentinel, did, at . mi .n' about the day of , 19 — , loiter on his post. L64. Specification: In that , with intent to defraud, did. at . on or aDOUt the day of , 19 — , unlawfully pretend to that , well knowing that said pretenses were false and hy means thereof did fraudulently obtain from the said (the sum of $ ) (merchandise of the value of $ ) ( ). 165. Specification: In that , while suffering (with) (from) , did. at , on or about the clay of , 19 — . refuse to suhinit to the (denial or medical treatment) (surgical operation) prescribed hy , the attending (dental) surgeon for the (disease) (injury), the said (treat- ment) (operation) consisting in , (said operation having been certified hy the attending surgeon as) being necessary (for the removal of a disability thai prevents Hie full performance <>f military duty) and without risk to his life (and the accused having I d advised that such certificate had been made). (< . l/. C. l/.. No. ',.) Specification: In thai (private) , having been found to be Buffering from ami having been notified hy , (Medical) (Dental i Corps, that (an operation) (medical treatment) (dental treatment) consisting of was lessarj to enable him to perform properly his military duties did. at , on or about , 19 — . refuse (<» submit to such" (operation) (medical treatment) (denial treatment); thai after such refusal the said (pri- - examined by a board convened under authority of section IV, <;. I ». is. War Department, 1918; that the said board found that the (operation > (medical treatment) (denial treatment) advised by the said . (Medical) (Dental) Corps, was necessary to enable the said (private) properly to perform his military duties; that the said (private) was. at , on or about , 19 — , not died of the findings of the said board and that thereafter he persisted in his refusal and still persists in his refusal to submit to such (operation) (medical treatment) (dental treatment). (C. M. C. M., Wo. }.i L66. Specification: In that — did, at , on or about the day of , 19 — , willfully mahn himself in the ■ — hy (shooting himself with ) ( -), thereby unfitting himself for the full performance of military service. 167. Specification: In that , while posted as a sentinel, did. at . on or about the day of , 19 — . sit down on his post L6& Specification: In that did, at , on or about the day of . }'.' , commit sodomy upon the person of one . I Noii.. If the acts alleged do uo1 amount to sodomy as defined in par. 443, the act-; committed will be accurately described in the specification.] L69. Specification: in that - - did. at . on or aboui Hi,' day of , id . while accompanying his organization on (a practice march) i maneuvers I Btraggle. APPENDICES. 352A 170. Specification: In that , knowing that would corruptly and willfully (give false testimony) (make a false declaration, etc.), did, at , on or about the day of , 19 — , procure the said to commit perjury, by inducing him, the said , to take an oath before a competent (tribunal) (officer) (person) in a (trial by court-martial of ) that [he, the said , would (testify) (declare) (depose) (certify) truly] [a (decla- ration) (deposition) (certificate) subscribed, by him was true] and, willfully, corruptly, and contrary to such oath, to (testify) (declare) (depose) (certify) as follows: , which (testimony) (declaration, deposition, etc.) was false, was (material) (a material matter) and was known by the said and the said to be false. (C. M. C. M., No. 1.) 171. Specification: In that did, at , on , with intent to defraud, feloniously utter to as true a certain (written instrument) ( ), in the following words and figures, " ," the said well knowing that the said (instrument) ( ) was forged. 172. Specification: In that — , a prisoner on parole, did, at , on or about the day of , 19 — , break his parole by . 173. Specification : In that did, at , on or about the day of , 19 — , with intent to (maim) (disfigure) , willfully and feloni- ously [(cut) (bite) ( ) the (nose) (ear) ( ) of] [(throw) (pour) corrosive acid ( ) upon] the said . (For. mayhem, see Specification No. 100.) 174. Specification: In that did, at , on or about felo- niously receive, have, and conceal (describe property as in larceny), of the goods and chattels of (name owner), then lately before feloniously stolen, taken, and carried away; he, the said (accused), then well knowing the said goods and chat i els to have been so feloniously stolen, taken, and carried away. ( C. M. C. M. No. J,.) APPENDIX 4a. FORMS FOR SYNOPSES OF CONVICTIONS BY COURT-MARTIAL (for entry in service record). INSTRUCTIONS. The forms for recording the synopses of convictions by court-martial as set forth blow constitute a general guide for use in entering convictions on the service record, the synopsis of the record being entered in the following sequence in each case: ( induce) soldiers (and officers) to (abandon) (deliver up) to the enemy , which it was their duty to defend, /18. 54. (Inducing) (seeking to induce) , then with his company en- gaged with the enemy, to (run away from) (abandon) his (post) ( ), AS. 55. (Inducing) (seeking to induce) , on outpost duty before the enemy to (run away from) (abandon) his (post) ( ), /18. CHARGE: 76 AW. 5ft In combination with others of his command compelled the commander to (surrender) (abandon) , to the enemy, /IS. o7. Jointly with others refusing to perform further duty in defense of , thereby compelling the commander thereof to (abandon) (surrender) said (fort) (post) (camp) (guard) ( ), /18. CHARGE: 77 AW. 58. Giving to a person entitled thereto the wrong (countersign) (parole), /18. 59. Making known the (countersign) (parole) to a person not entitled thereto, /18. CHARGE: 78 AW. 60. Violating a safeguard, /18. CHARGE: 79 AW. Gl. Appropriating to (his own use) ( ), public property taken from the enemy, viz, of the value of $ , /IS. 62. Neglecting to secure for the service of the United States public prop- erty taken from the enemy, viz, , of the value o'f $ , /18. CHARGE: 80 AW. 63. (Buying) (selling) ( ) (captured) (abandoned) property, viz, . of the value of $ , /18. 64. Failing to report (captured) (abandoned) property coming into his (possession) (custody) (control), viz, , of the value of $ , /18. 65. Palling to turn over (captured) (abandoned) property coming into .his (possession) (custody) (control), viz, , of the value of $ , /18. CHARGE: 81 AW. 66. informing an enemy patrol of the whereabouts of a United States patrol, /18. U7. Knowingly (harboring) (protecting) (harboring and protecting) a member of the enemy's forces who was then being sought by a United States patrol, /18. 68. (Holding correspondence with) (giving Intelligence to) I holding corre- spondence with and giving intelligence to) the enemy, /18. 60. Furnishing and delivering to members of the enemy's army, to the value of I , /18. CHARGE: 82 AW. 70. Acting as a spy, /18. MANUAL l OB « OURTS-MABTIAIi. CHARGE: 83 AW. 71. (Through neglecl i (willfullj I Buffering , of the value of $ , military property of the United sun.-, to be (lost) (spoiled by i (damaged by ) [wrongfully disposed of by (sale to ) ( )],- 18. CHARGE: 84 AW. 72. (Through neglect) (willfully) (injuring) (losing) , of the value . issued for use In the military service of the United States, - 18. 78. (Unlawfully selling to ) (wrongfully disposing of by ) -.. of the value of $ , issued for use In the military service of the United states. /18. CHARGE: 85 AW. 7 1. Pound drunk while n post, /18. Leaving post before being regularly relieved, /18. CHARGE: 87 AW. 77 and 78 omitted ; refer to officers only. CHARGE: 88 AW. 79. Doing violence to, by striking and beating, an inhabitant bring- big (supplies) (provisions) to (camp) (garrison) (quarters), /18. 80. Acting Jointly with (another) (others) interfered with an inhabitant bringing (supplies) (provisions) to (camp) (garrison) (quarters), Si. Intimidating an Inhabitant, bringing (provisions) (supplies) ( ) Into (camp) (garrison) (quarters), by threatening to kill If he continued to bring (provisions) (supplies) ( ) into (ramp) rlson) (quarters) ( ). 18. CHARGE: 89 AW. 82. Committing a depredation upon (an orchard) ( ) by entering same without authority and (removing fruit from trees) ( ), /18. BS. Rioting in the public streets of . by (resisting and fighting against the peace officers of ) ( ), /IS. 84. Willfully destroying a growing crop (of oats) I I by (permitting the horses of his troop to graze therein ( ), /IS. 85. Unauthorized (destruction of) ( ) (a building) ( ), 'is. 86. < Unilled : refers to Officers only. CHARGE: 90 AW. 87. Using a (reproachful) (provoking) (reproachful and provoking) speech agalnsl (accompanied with a provoking gesture), is. CHARGE: 91 AW. 88 and 89 omitted; vU-r to officers only. 90. Fighting a duel. 91. Promoting n duel. L8. .CHARGE: 92 AW. Pi' Murder, killing . by (shooting him with a rifle) ( ), /18. APPENDICES. 352F CHARGE: 93 AW. i»4. Arson, burning a (dwelling house) ( ), /IS. 95. With intent to (do him bodily harm) (commit a felony, viz, ) striking ( ) (in) (on) the with a , /18. 96. Burglary, /IS. 97. Embezzlement of , of the value of $ , /18. 98. Larceny of , of the value of $ , /IS. 99. Manslaughter, /IS. 100. Mayhem, cutting off the (hand) (arm) ( ) of , /IS. 101. Perjury, in a (trial by court-martial of ) (deposition for use in a trial by conrt-martial of ) (military investigation) (civil suit) ( ), /18. 102. Robbery by (force and violence) (putting in fear) of of the value of $ (from ), /18. CHARGE: 94 AW. 103. (Making) (causing to be made by ) a (false) (fraudulent) (false and fraudulent) claim against the (U. S.) (Q. M. at ) ( ), in the amount of $ , for (private property alleged to have been [lost] [destroyed] in the military service) ( ), AS. 104. (Presenting) (causing to be presented by ) for (approval) (payment) (approval and payment) a (false) (fraudulent) (false and fraudulent), claim against the (U. S.) (Q. M. at ) ( ), in the amount of $ , for (services alleged to have been rendered to the U. S. by ) ( ), /18. 105. Entering into an (agreement) (conspiracy) (agreement and con- spiracy) with , to defraud the U. S. by (obtaining) (aiding to obtain) the (allowance) (payment) (allowance and pay- ment) of a (false) (fraudulent) (false and fraudulent) claim against the U. S., in the amount of $ , for (supplies) ( ) alleged to have been furnished the U. S. by , /18. 106. (Making) (using) (making and using) a (false) (fraudulent) (false and fraudulent) statement for the purpose of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim, against the (U. S.) .0 M. at ) ( ), /IS. 107. (Advising) (procuring) (advising and procuring) the making o^ a (false) (fraudulent) (false and fraudulent) statement for the pur- pose of (obtaining) (aiding others to obtain) the (approval) (allow- ance) (payment) (approval, allowance, and payment) of a claim against the (U.S.) (Q. M. at ) ( ), /18. 108. (Making) (advising the making of) (procuring the making of) (advising and procuring the making of) a false oath by that , for the purpose of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment) (approval, allowance, and payment J of a claim against the (U. S.) (Q. M. at ) ( ), /IS. 109. (Forging) counterfeiting) (forging and counterfeiting) (the sig- nature of upon 'a ) (a ) for the purpose of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment) (approval, allowance', ami payment) of .-i claim against the (U. S.) (Q. M. at ) ( ), /18. MAN I'M. FOR TOT UTS-MARTIAL.. CHARGE: 94 aw Continued. 110. (Advising) (procuring) (advising and procuring) the (forging) (counterfeiting) (forging and counterfeiting) by , of (Hie lire of upon a ) (a ) for the purpose of (obtaining) (aiding others to obtain) the (approval) (allowance) (payment ((approval, allowance, and payment) of a claim against tli.- (U. s.i (Q. M. at ) ( ), /18. 111. (Using) (advising the us.- of) (procuring the use of) a (forged) (counterfeited) (forged and counterfeited) for the purpose of (obtaining) (aiding others to obtain) the (approval) (allow- ance) (payment) (approval, allowance, and payment) of a claim against the (U. S.) (Q. M. at ) ( ), AS. 112. Saving (charge) (possession) (custody) (control) of (money) ( ) (furnished) (intended) (furnished and Intended) for the military service, knowingly (delivered) (caused to be delivered i to , (an) (a) (amount) (number) (quantity) less than the (am-. unt) (number) (quantity) for which he received a (certifi- cate) (receipt I. at , /18. 113. (Making) (delivering) (making and delivering) a paper certifying the receipt of picpeny of the U. S. (furnished) (intended) (furnished and intended) for the military service, without having full knowl- edge of the truth of the statements therein contained and with the Intenl to defraud the U. S., /IS. 114. (Stealing) (embezzling) (misappropriating) (applying to his own use (applying to his own benefit) (applying to his own use and benefit) (wrongfully selling) (knowingly and without proper au- thority selling) (wrongfully and knowingly selling) . Of the value of about .$ , property of the U. S., /18. 116. Wrongfully and knowingly (purchasing) (receiving in pledge) from (in) (employed in) the military service for an (ob- ligation) (indebtedness) , of the value of about $ , property of the U. S., A8. CHARGE: 95 AW. 116 to 124 omitted; refer to officers only. CHARGE: 96 AW. 11'.". Abandoning his guard. - ■— /18. 126. Kicking a public (horse) ( ) (in the belly) ( ), AS. 127. As (sentinel) (overseer) ( ). in charge of prisoners, allowing a prisoner to I go to) (enter) (go to and enter) an unauthorized ]. lace, /iS. 12S. As (sentinel) (overseer) ( ) In charge of prisoners, allowing a prisoner to (hold unauthorized conversation with ) (loiter) (neglect bis tasfc by ) (obtain ) ( ), /!%. 128. As (sentinel) (overseer) ( ) being in Charge Of prisoners, and having received B lawful order from , to require a prisoner to . failed to obey 1 he same. /18. 180. Appearing In civilian clothing without authority, /18. 181 Appearing (at) (without his ) (with his not buttoiie.il (in an unclean ) ( ), /IS. 182. Attempting to (strike) ( ) (in) (on) the with , , '18. 188. Striking I — ) (in) (on) tin with , /18. 184. with Intenl to evade (duty) ( ) feigning (illness) (disability) (Insanity) ( ), /18. APPENDICES. 352H , CHARGE 96 AW— Continued. 135. (Attempting) (threatening) to (strike) ( ) a sentinel (in) (on) the with , /18. 136. (Striking) ( ) a sentinel (in) (on) the with , /IS. 137. (Escaping) (attempting to escape) from confinement, /18. 138. As a prisoner, using disrespectful language to a sentinel, /18. 139. Having been restricted to the limits of , did break same, /IS. 140. Unlawfully carrying a concealed weapon, /IS. 141. (Urinating) (defecating) ( ) (on the floor of the squad room) , • /18. 142. Willfully did, [ (conceal) (remove) (mutilate) (obliterate) (destroy)] [attempt to (conceal) (remove) (mutilate) (obliterate) (destroy)] [take and carry away with intent to (conceal) (remove) (mutilate) (obliterate) (destroy) (steal)] a public record, viz, (the descriptive list of ) ( ), /18. 143. As a prisoner conspiring with and to escape from con- finement, /18. 144. Willfully destroying , property of the U. S., value about $ , /18. 145. Through carelessness, discharging a (service rifle) ( ) in his (squad room) (tent) ( ), /18. 146. (Failing to obey) (willfully disobeying) orders from a sentinel, m. 147. (Drunk) (disorderly) (drunk and disorderly) in (camp) (post) (quarters) ( ), /18. 148. (Drunk) (disorderly) (drunk and disorderly) in uniform, /IS. 149. As a sentinel, drinking intoxicating liquor with a prisoner under his charge, /18. 150. While a prisoner, was found drunk, /18. 151. Failing to obey a lawful order, /IS. 152. Violating (standing orders) (regulations), /18. 153. Wrongfully using a narcotic drug, /18. 154. Failing to pay a just debt, /IS. 155. Failing to report for prophylactic treatment, /IS. 156. Making a false official (report) (statement), — /18. 1~>7. False swearing, /18. 158. Forging (in its entirety) [by (altering ) (erasing ) (add- ing )] a certain (check) ( ), /18. 159. As (sergeant) (corporal) gambling with privates, /18. 1G0. Gambling in quarters in violation of orders, /18. 161. Indecent exposure, /18. 162. ((Mi behalf of another) loaning $ for (months) (days) per cent per (annum) (month), an usurious rate of interest, /IS. 163. While ,-i sentinel, loitered on his post, /IS. 1G4. Obtaining. by false pretenses (from ) (the sum) (merchandise of the value) of $ ( ), /18. 165. Refusing to submit to (medical treatment) (dental treatment) (a Burgical operation), /is. 166. Willfully maiming himself (by shooting himself with ) ( ), /18. 352l MANUAL FOB 0OX7BTS-MABTIAL. charge: 96 AW— Continued. 167. While a sentinel, Bitting down on his ]«'st. /18. 168. Sodomy committed upon ,,|t ' person of <»no , /18. 169. Straggling while (on practice march) (a1 maneuvers >, /18. L70. Knowingly procuring to commil perjury, by Inducing him knowingly to (give false testimony) make a false (declaration) (certificate) (deposition) as i" a material matter In a trial (by court-martial) ( ). /18. iTi. Willi Intenl to defraud, knowingly uttering to a forged (writ- ten instrument) ( ), /IS. 172. Breach of parole, while a prisoner, /18. 173. With Intenl to (malm) (disfigure) willfully [(cutting) (bit- ing) ( ) the (uose) (ear) ( ) of ] [(throwing) (pouring) corrosive acid upon] the said , /18. 17 1. Knowlnglj receiving stolen goods of the value of $ , /IS. . ( . i/.. No. -'/.) APPENDIX 5. SUGGESTIONS FOR TRIAL JUDGE ADVOCATES. The judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, pre- pare the record of its proceedings. (A. W. 17.) The following notes, indicating more or less in proper sequence certain action usually proper to be taken by a trial judge advocate, may be found useful : I. UPON RECEIPT BY AN OFFICER OF AN ORDER APPOINTING HIM JUDGE ADVOCATE OF A COURT-MARTIAL. (a) Examine the order carefully and take appropriate action to cause the correction of any substantial irregularity therein. (b) Examine and study such portions of the Manual for Courts-Martial, Digest of Opinions of the Judge Advocates General, Army Regulations, and War Department or other orders affecting courts-martial as may appear desirable. He should, in this connection, give particular attention to the duties of trial judge advocates, to the procedure of courts-martial, and to the matter of evi- dence. 2. UPON RECEIPT OF CHARGES IN A CASE. (a) Prepare an envelope to contain the papers pertaining thereto. ( b ) Examine the charges and all papers received to see that none appear to be missing, that the charges appear to be correctly drawn, that the evidence of previous convictions is complete and correct, especially as to dates, authentica- tion, proper signatures, etc. (c) Make authorized necessary changes in charges and take proper action in connection with defects, if any, found in evidence of previous convictions. (d) Report to the appointing authority necessary or desirable changes which the judge advocate is not authorized to make. (e) Furnish the accused, if he so desires, a copy of the charges; and, if he desires to state, ascertain from him how he intends to plead. (/) Ascertain whether accused desires counsel; and if so, ascertain whether he wishes a particular person ; and if so, whom. (.'/) Arrange for counsel, if desired to do so. (/() Prepare case for trial, investigating it thoroughly, and determining upon plan of prosecution. (i) Arrange with president date and time of meeting of court. (j) Arrange for court-martial room, see that it is in order, provided with necessary tables, chairs., stationery, and room to be heated, if necessary. (k) Notify all members of date and time of meeting and arrange for presence of other necessary persons, including the accused and his counsel, reporter, in- terpreter, if required, and witnesses. 53915°— is 25 353 M ,-. U i OB I 01 BI6 * LRTIAL. i/) Arrange i<> have al trial Bucb books, etc, as maj be required. The fol lowing are frequently found necessary <>r useful: Manual tor Courts- M a rtial. : of Opinions, Judge Advocates General Standard Text on Ifllltars Law. Ordnance Price List, king Price I (m) Determine maximum punishment, if any, imposable upon conviction of each of the several offenses charged, and note same on slip for use of court in the event of a conviction. 3. UPON THE ASSEMBLING OF THE COURT. (.i) Note officers present and absent. | When court appears to be ready to proceed, announce the readiness of the prosecution to proceed with trial of , who desires to introduce knseL or does not desire to introduce counsel. Swear reporter, if any. (d) If a general eourt-inartial, ask accused if he desires a copy of the record of his trial If he does not, do not have copy made; if he wishes copy, direct reporter to prepare one. 1 1 ) Read aloud to accused the order appointing the court and each modi- fying order. i / ) Ask accused if he objects to being tried by any member present named in the order or orders. ('/> After action on challenge, if any made, has been had, again ask the accused whether he objects as above. Continue this until accused has no fur- ther objection. I h i Swear members of court. (t) Be sworn by president. I Read charges and specifications aloud slowly to the accused, and, having done so, ask him how he pleads to the first specification, first charge — if neces- sary rereading t<> him the specification; then how he pleads to the second specification, first charge, etc. ; then to the first charge, etc. (In If there be a plea of guilty, the president makes to accused the required explanations and asks him the required questions. [I) Bead to court from chapter on punitive articles the gist of each of the several offenses charged. im) Introduce and swear witnesses for the prosecution. In some cases ir may be desirable to acquaint the court with the particular specification with which the testimony of a particular witness is connected. in) In all cases attempt to establish by evidence each of the several speci- fications, except such elements as max be the subjects of judicial notice or as admitted. b witness, having careful regard for the rules of evidence. i /, > Offer opportunity tO cress-examine. 1 7 1 Reexamine, if desirable. (/) Ask court if there are any questions by the court. ( * ) If any Witness Is recalled, remind him that lie is still under oath. it) When I he prosecution has nothing further to offer for the time, announce that the prosecution rests. i ;/ ) Swear witnesses lor defense, in succession, and cross-examine so far ns desirable APPENDICES. 355 (v) after defense rests, swear and examine witnesses, if any, in rebuttal for prcsecution. (w) If the accused neither testifies nor makes a statement, the president makes to him the required explanation and asks him the required questions. (x) Offer accused opportunity to make a statement. (y) Make closing statement, if any. 4. ADJOURNMENT DURING TRIAL. (a) Note time of adjournment. (ft) Arrange, if practicable, to have completed record of proceedings to date ready before next assembling of court. (c) Subscribe the record of proceedings for the day. 5. FINDINGS. (a) After both prosecution and defense have concluded, the court closes ft. findings, and in the case of a person not a soldier to award sentence upon coi viction. (b) Upon conviction of a soldier, the court opens for the purpose of receiv ing evidence of previous convictions, if there be any. (1) Read aloud duly authenticated evidence of previous convictions referreo to the court by the appointing authority. (2) Invite attention of court to any apparent irregularity in the evidence ei previous convictions. (3) Ask the accused whether the evidence of the several previous convi. lions and the statement of service as shown on the charge sheet are correct. (4) Invite the attention of the court to any apparent irregularity in the findings. 6. SENTENCE. (/i) The court will then close to determine upon and award the sentence (6) After awarding sentence the court notifies the judge advocate of tf same. (c) Invite the attention of the court to any apparent irregularity in the sei. tence. 7. ADJOURNMENT AT CLOSE OF TRIAL. (a) After sentence has been awarded the court either proceeds to oth. business or adjourns. (b) Note time of proceeding to other business or of adjournment 8. AFTER TRIAL. (a) Complete vouchers for civilian witnesses and deliver same, if practicabl. before the witness leaves. ( 6 ) Take proper measures to Insure the security of the findings and senteno if recorded, and that they are not disclosed to any but the proper authoriT> (c) When record is received back from reporter: (1) Examine carefully to see thai it is in proper form, complete, and correci as to both form and substance. (2) Make proper notation on index sheet as to copy of record. (3) See that copies of evidence of previous convictions are correct, certify same, and return originals to organizations. MANUAL FOR COURTS-MARTIAL. n qo4 m attached, attach Indi i Bhee4 and all exhibits. m /// hound. (./ 1 Enter findings and sentence, r, i \\ findings and sentence are typewritten, add proper certificate. (/) Authenticate record. (0) Have president authenticate record. Certify original voucher and Bend LI i<> reporter or to a near disbursing quartermaster, and Inclose copy with record. in Verity completeness and correctness of record by stein- that, so far as In 'lie particular h requirement stated in Chapter XV, Section i. paragraph 857 (o) has been complied with. i } , [ndorse and forward charges, accompanied by record of trial and all s, to the appointing authority. 9. WEEKLY REPORT. Bach Saturday report through the president of the court and the commanding ail charges which have not been returned to the appointing authority ■bowing date of receipt of cadi and reasons for delay in trial. 10. RECORD WHICH MAY BE KEPT. It is Suggested thai when deemed desirable at least the following record be kept by the trial Judge advocate in each case. This record may be conveniently on an envelope to be used as a container for the charges and various papers : • t receipl by him of charges or other papers. Date of preliminary consultation by him with the accused. How accused intends to plead, if stated by him. Counsel : 1 >esir.-dV If so, name. If so, date <>n which commanding officer so informed. Date ' n Which judge advocate informed of appointment of counsel. ilt of examination in preparing for trial, and dates and other necessary pertaining to each other incident connected with the case, such as mailing Intern Bubpcenalng witnesses, etc. Date of trial. Date and hour record received back- from reporter. Date and Ik. iir record forwarded to appointing authority. Date of return to commanding officer of evidence of previous convictions, if I l.i- N returned. APPENDIX 6. FORM FOR RECORD OF TRIAL BY GENERAL COURT-MARTIAL AND REVISION PROCEEDINGS. Record of Trial by General Coubt-Mabtiai, * of INDEX. Page. Arraignment Pleas Statement by accused . Address by counsel - Reply by judge advocate Findings Previous convictions submitted Sentence (or acquittal) . Proceedings in revision Testimony. Name of witness. Direct. Cross. Redirect. Examina- tion by court. Recalled. Page. Page ' Page. 1 Page. Page. Exhibits. Number. £»££>£ Deposition oiCapt. Deposition of Pvt. - Letter of fnot desired by accused. 2 Carbon copy of the record furnlshed the accusetl . 1 See " Courts-martial, Records of trial, Cbap. XV." The record will be clear and legible and, if practicable, without erasure or Interlineation. Erasures or interlineations will be authenticated by the initials of the judge advocate or of the president, or, in a proper case, of the assistant judge advocate. The pages of the record will be numbered at the bottom, and margins of 1 inch will be left at the top, bottom, and left side of each page. a Line out inappropriate words. 357 irt martial which convened at r-lt-r : " defoH.) :,t to the I l«J ../.,, „/ //„■ or* r appoint**/ the oouri and, foUowtna it, — t . ., the foregoing order al o'clock . m. i valry. 10th Infantry. ' ArtlUerj Corns. , 5th Cavalry. \rtiller\ Corps. . r.tli Cavalry, Judge itdvocate . -jmiIi Infantry, assistant Judge advocate. Opt, tml Artillery Corps (detached servl , in ,i i. ,,. m. . iOth infantry i leave of absence) ii„. court proceeded to the trial of Private* . Company try, who, on appearing before the court, stated that he did not desire counsel or Introduced was sworn as reporter. : .t. announced that he was the accuser and was excused and withdrew. \i\ an Interpretci fa t-> '••■ used he thould be tworn when /n. ire 1 in the record of the ; i of a court-martial at its organization for ,1 ..i a case the officers detailed aa members, Judge advocate, and idvocate will be noted by name as present <>r absent. In the r subsequent sessions in the same case (except in pn I following form of words will be used, subject to suca modification as the facts may require: "Present, ail the members of the i ie. and the assistant Judge advocate." When the absei an Officer Who has not qualified <>r Who has been relieved or eXCUSed as a mem I inted lor. no further note will he made of it. court-martla] who Knows, or lias reason to believe, that in absent from a session ,,i- the COUrt, will inform tlif when a member of a court-martla] is absent advocate will cause that fad. together with the known to him. to be shown in the record o for Buch absence is not known to the Judge advo- the record to Bhow tin- member as absent, cause unknown. yjll hot he (-Opted into 'I,.' reeord. :ii number. APPENDICES. 859 The order appointing the court (and the order or orders 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 ii> the negative; or Defense: {Insert statement.) Captain : (Insert the statement of the challenged member, who ordinarily should re- spond to the challenge by briefly admitting or denying the grounds of the chat- lenge. Should the accused, after the statement, desire to call upon the member to testify as to his competency, the record should continue:) The accused having requested that the challenged member be sworn as to his competency to act as a member of the court, was sworn by the Judge advocate and testified as follows: The challenged member withdrew, the court was closed, and on being opened the president announced in the presence of the accused and his counsel that the challenge was not sustained or that the challenge was sustained. If the challenge is sustained: then withdrew. The accused was asked if he objected to any other member present, to whicl he replied in the negative or Defense : (Insert objection in full, record, and continue as before until accused replies in the negative.) The members of the court, the judge advocate, and the assistant judge advo eate were then sworn. (// delay is desired, request should now be made and the proceedings re corded. If no continuance is requested, the record should continue:) The accused was then arraigned upon the following charges and specifica tions : a Chabuk 1 : Violation of the Article of War. Specification: In that, etc. Chabge II: Violation of the Article of War. Specification 1: In that, etc. Specification 2: In that, etc. , Capt. Infantry. To which the accused pleaded : 2 To the specification, Charge I : Guilty or Not guilty. To Charge I : Guilty or Not guilty. To Specification 1, Charge II : Guilty or Not guilty. To Specification 2, Charge II : Guilty or Not guilty. To Charge II : Guilty or Not guilty. The paragraphs of the Manual for Courts-Martial that set out the gist of each of the several offenses were read to the court by the judge advocate. 'All words that precede the charge proper are not parts of the charges and irill not t>e copied into the record, but the uame, rank, and organization of the officer subscribing the charges will be copied into the record after the charges and specifications. 1 In case the accused pleads guilty in whole or in part to any charge oi specification, the record will show the explanation of the president and the reply of the accused required by par. 154 (d). MAM A! FOB COURTS-MARTIAL. . Company , infai.tr>. a witness tor the prose- cull.,: ■ d and testified as folkn know the a© a» dl if bo, state who he is. .,; Pvt . Company , Infantry. . Ung questions of ti<> pi < noers should follow \. . (// the defense decline* to cross-examine the witness, the record should .• ii... , Lned to cross-examine the witness. .lion: (». ? — . tions by de Q. ? ons by court Q. ? A. . Prosecution: [Insert objection.) Member : < Insert reply, etc. i (// the accused or another member object, the record would proceed in a eor- nf the accused and his counsel that the objection was sustained or was ■ I stained. (In the latter 0086 th< record should continue:) The question was then repeated: A. . (// tin ast<•/ ). Or, The defense read to the COUrl a statement, which is hereto appended and marked — .* The prosecution: (Insert statement). Or, The prosecution read to the court a statement, which is hereto appended and marked — . The court was dosed, and finds the accused: of the specification, Charge I: Guilty or, Not guilty. of Charge I: Guilty or Not guilty. Specification l, Charge IT: Guilty, except the words " ," substitut- ing therefor the tvords " "; of the excepted words, "Not guilty" and of tbstltuted words " Guilty." of Specification 2, Charge n : Guilty or Not guilty. .live II : Guilty or Not guilty, or Not guilty, but guilty of . i // a soldier Is found guilty, the record should continue.) The court was opened ami the Judge advocate stated, in the presence of the aCCUSed and his counsel, thai he had no evidence of previous convictions to submit. read the evidence of previous convictions, 1 copies of which are hereto ppended ami marked "4," ".">."' etc. i if tic it, (ms, ■ iti/.s liny statement to make in regard to the previous oonvio statement of service, it trill b< recorded.) Th< >ur1 was closed, ami sentences the accused to . ons, or accuse,/ acquitted, i Th urt sentences the accused. Private , Infantry, to — . etc., "/ acquits the accused. atement "i the accused, or argument in his defense, and till pleas to tli'' ' idictloi] in bar of trial or in abatement, when in writing, should be • by the accused himself, referred to in proceedings as having been sub : bj him, and appended In the record. 'When the proof produced Is the copy furnished to the company or other it win he returned to him and a copy of it attached to the record, if Hie 'rial he h> general court -martial. The copy should be bound with the record ■ 3 an exhibit 363 APPENDICES. The court, at — m., was opened and proceeded to other business. Or, adjourned until — m„ the instant. Or. adjourned to meet at the call of the president. Major, 5th Cavalry, President. First Lieutenant, 5th Cavalry, Judge Advocate. . (At least tiro blank sheets toill be inserted after the adjournment md before the exhibits for the decision and orders of the reviewing authority.) BINDING AND BRIEF. {The papers forming the complete record will be securely bound together at the top (easily removed clips or paper fasteners will not be used) and the record folded in four folds and briefed on the first fold, as follows: Private, Company , Infantry. Trial by general court-martial. Form for Revision of Record. 2 Fort i&— . The court reconrened at o'clock — . m., pursuant to the following in- dorsement : (Insert copy of indorsement.) Maj. , 5th Cavalry. Capt. , Medical Corps. First Lieut. , 10th Infantry. First Lieut , 5th Cavalry. Second Lieut. , Coast Artillery Corps. First Lieut. , 5th Cavalry, judge advocate. Second Lieut. , 29th Infantry, assistant judge advocate. (Insert names of absentees and state cause of absence, if known.) The judge advocate read to the court the foregoing indorsement of the con- vening authority.* 1 In case of the death, disability, or absence of the judge advocate. Bee A. W. 33. When the judge advocate records the findings and sentence by tb> use of a typewriting medium he will certify immediately after the authentic;, tion of the record as follows: il I certify that I recorded the findings and Bei tence of the court." When the record is completed the judge advocate will fo r ward it without delay to the appointing authority as an inclosure to the In- dorsement <>f the Judge advocate, returning the original charges. J See " Record of revision," par. 357, ante. The court is usually reconvened by Indorsement on the charges returning them to the president of the court with the directions of the appointing authority. ■The record should show the name of each member of the court present dur- ing the proceedings in revision. 4 The judge advocate will also read any other indorsements that may be con- j nected with the proceedings in revision. 'Inserl name and Army serial number. mamai | OB • "i B CB M \r:i iAL. ■ urt was dosed and revokes Ita former findings and sentence, and tm. is the accue id, < tc ur, !■• the accnsed ; fully adheres to its former findlo - and sento menda the record by, etc' The Ued and the conrt at . m.. Major, 5th Cavalry, President. ■'< nant, 6th Cavalry, J ate. ■ uoitt b( appended to the original proceedings, folloio- tng tin in immediately, before the exhibits, and roill be forwarded by indorse- on tit< charges i<> the appointing authority.) {O. M. C. '' 1 See par. 3G4. APPENDIX 7. FORM FOR RECORD OF TRIAL BY A SPECIAL COURT-MARTIAL. Proceedings of a special court-martial which convened at , pursuant to the following order: | Here insert a literal copy of the order appointing the court and, following it. copies of any orders modifying the detail.] Fort , , 19—. The court met pursuant to the foregoing order at — o'clock, — in. Mnj. , 5th Cavalry. Capt. , 1st Field Artillery. Capt. , Medical Corps. First Lieut. , 10th Infantry. First Lieut. , 5th Cavalry. Second Lieut. , 29th Cavalry, judge advocate. Capt. , Coast Artillery Corps. The court proceeded to the trial of Private 3 — — , Company Infantry, who, on appearing before the court 4 (stated that, he did not desire counsel) (introduced as counsel). ( was sworn as reporter.) 5 (Capt. , because ineligible, was excused and withdrew.) (First Lieut. was, upon challenge, excused and withdrew.) The accused stated that he had no objection to trial by any member (remain- ing ') present. The members of the court and the judge advocate were sworn. The accused was arranged upon the following charges and specifications: Charge I: Violation of the Article of War. Specification: In that, etc. Chajbge II: Violation of the Article of War. Specification 1: In that, etc. Specification 2: In that, etc. Captain, Infantry. 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 ami judge advocate will be noted by name as present or absent. "Statement of neither reason nor authority for the absence is required. 'Insert name and Army serial number. 4 Words inclosed In parentheses will In a proper case be omitted. 6 A judge advocate of a special COUrl may. when authorized h.v the appointing authority, employ a stenographic reporter, to be paid at the rates lixed in par- agraph 113. 365 fUAL KOR COl R1 S-MAB n vi To all tin' -! ■ ■ Lficatioue aud • I . cifleatlon, < 'barge I : i . Specification l, Charge 1 1 : . i Specification ! • II: . II: . following-named persons were Bworn and testified: i . — infantry. Infantry IM. , Infantry. fiven full opportunity to examine each witness of the following-named persons were received in evidence :m• accused stated thai he had nothing further to offer. The court was closed and finds the accused : Of .ill specifications and charges: * Of ilif Spe< Hcations, Charge I: . Charge I: . Of Specification 1, Charge II: . Specification •_*. Charge II: . Of Charge n : . (The <'<>uri therefore acquits him.) The court was opened and the judge advocate, in the presence of the accused (and his counsel) (staled that he had no evidence of previous convictions to submit I (read the evidence <>!' previous convictions). ■ COUrl was closed and sentences the accused to . ) opened and (proceeded to other business) (adjourned).' Major, - I n I'm) try. President. First 1. 1< utenant, Infantry, .in.ied. Bee par. 154 (d). 'This or similar language will be used when the findings of the court on all eclfleatlons and charges are the same. !> of the record will be made, it will nol be indexed, will be bri< ed as is it general court martial record, and will be securely bound. [0. M. No. /.• APPENDIX 8. FORM FOR RECORD OF TRIAL BY SUMMARY COURT. Charge sheet. Number (Place.) (Date.) (In summary court record. ) -, 19 . (Surname.) (Christian name.) (Number.) (Grade.) (Company and regiment, or corps, or department.) Date of current enlistment, , 19 — ; age at enlist- ment. — — years months. Rate of pay, $ . Class A allotment, $ per month. Class B allotment, $ per month. Allotment for insurance premium, $ per month. Liberty loan allot- ments, $ per month. Prior service, (Give dates, with character given on each discharge.) Number of previous convictions, . Date of arrest, , 19 — , or confinement, , 19 — . Place where accused is now in arrest or confinement, ■ . Witnesses : First Sergt. , Company . Infantry. Private , Company , Infantry. Charge I : Violation of the Article of War. Specification: In that, etc. Charge II: Violation of the Article of War. Specification 1: In that, etc. Specification 2: In that, etc. [1st Ind.] Headquarters , , 19 — . To Capt. . Infantry. Sum- mary Court, for trial. By order of Col. . Captain, Infantry, Adjutant. Findings: (If the findings as to all the specifications and charges arc the .sunn, a single proper entry, such as "Guilty," or "Not guilty," trill be made. If necessary, however, m order to show the facts, detailed entries will be made. I Sentence: . Captain, Infantry, Summary Court. Approved, . 19 — . Colonel, Infantry, Commanding. (C. 1/. C. V/., No. >t.) 367 APPENDIX 9. FORMS FOR SENTENCES. (For forms for action by reviewing authority on sentences by courts-martiala see Appendix 10.) A sentence adjudged by a court-martial will, in a proper case, be expressed substantially in one or another of the forms following. When desirable, in a proper case, two or more of the forms may be combined. 1. To have his pay for days detained. 2. To have two-thirds (or other fraction) of his pay per month for months detained. 3. To forfeit days' pay. 4. To forfeit two-thirds (or other fraction) of his pay per month for months. 5. To perform hard labor for days (or months). 6. To be confined at hard labor for days (or months). 7. To be confined at hard labor, at such place as the reviewing authority may direct, for days (or months or years). 8. To be confined at hard labor, at such place as the reviewing authority may direct, for months and to forfeit two-thirds (or other fraction) of his pay per month for a like period. 9. To be dishonorably discharged the service and to forfeit all pay and allow- ances due or to become due. 10. To be dishonorably discharged the service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor, at such place as the reviewing authority may direct, for days (or months or yeors). (C. II. C. M., No. 1.) 11. To be reduced to the ranks. 12. To vacate all rights and privileges arising from his certificate of eligibility. 13. To be admonished. 14. To be reprimanded. 15. To be restricted to the limits of his post (or other place) for — months. 16. To be suspended from duty for months. 17. To be suspended from command for months. 18. To be suspended from rank for months. 19. To be reduced in rank files. 20. To be reduced in rank so that his name shall appear in the lineal list of officers of his arm next below that of . 21. To be dismissed the service. 22. To pay to the United States a fine of dollars and to be confined at hard labor, at such place as the reviewing authority may direct, until said fine is so paid, but for not more than months (or years). r,. o ,01 .") °— 1 8 26 369 MANUAL FOR COURTS-MARTIAL. to the United States a fine of dollars, to be confined at bait labor, at such place as the reviewing authority may direct, for mo ;in ,i to be further confined al hard labor until said fine Is so paio „• do! more than months (or years), in addition to the months (or years) hereinbefore adjudged. tinned at hard labor, at such place as the reviewing author direct, tor the term of his natural life. . o be abot to death with musketry. . j by the neck until dead. APPENDIX 9a. FORMS FOR SYNOPSES OF SENTENCES. I For entry in service record. J INSTRUCTIONS. The forms for recording the synopses of sentences adjudged by court-martial, as set forth below, constitute a general guide for use in entering the sentences on the service record, the entries being made in the following sequence in each case: (o)Seutence as appro veil ; (b) date of approval of sentence. (These forms cover the forms for sentences given on pages 369 and 370.) 1. Pay for 10 days detained, /18. 2. § pay per mo. for 2 inos. detained, /18. 3. Forfeit 10 days' pay, /18. 4. Forfeit § pay per mo. for 2 mos., /18. 5. Hard labor for 5 days, /18. 6. Confmt. 10 days, /18. 7. Confmt. 2 mos., /18. 8. Confmt. 2 mos. Forfeit § pay for like period. 9. Dishon. disch., /18. 10. Dishon. disch. conf. 6 mos., /18. 11. Reduced, /18. 12. Loss of privileges of certificate of eligibility, /18. 13 and 14 omitted ; refer to officers only. 15. Restricted to limits of post for 6 mos., /18. 16 to 24 omitted ; refer to officers only. 25. To be shot, /IS. 26. To be hanged, /18. (C. M. C. M., No. J,.) APPENDIX 10. FORMS FOR ACTION BY REVIEWING AUTHORITY. (For forms for sentences see Appendix 9.) The following forms will serve as a general guide for reviewing authorities in recording, in cases in which such forms are appropriate, their action on sentences imposed by courts-martial. In a proper case the substance of twc or more of the forms may be combined. Likewise, the action as recorded may contain proper matter additional to that set out in any of the several forms. A. FORMS FOR ORIGINAL ACTION. 1 Approved (or disapproved) , 191 — . Colonel — Infantry, Commanding. Headquarters , , 191 — . Approved (or disapproved). Colonel, 3 Approved and suspended , 191 — Colonel, Infantry, Commanding. — Infantry, Commanding. 4 Approved, and forfeiture (or confinement) suspended, , 191 — . Colonel, Infantry, Commanding. Headquarters 191- In the foregoing case of — executed (or is disapproved). In the foregoing case of the sentence is approved and will be duly Colonel, Infantry, Commanding. Headquarters 191- - the sentence is approved, but owing to the length of time the accused has been in confinement days (or months) of the confinement imposed are remitted. As thus modified the sentence will be duly executed. Colonel, Infantry, Commanding. Headquarters 191- In the foregoing case of — II, are disapproved. The sentence is approved :m — . terminated by apprehension («./• surrender) is approved. Only so mucb of the sentence as provides for is approved ami will be dulj executed. Colonel, Infantry, Commanding Beadquarters , , 191 — . in tin- foregoing case of the sentence is approved, but the execution thereof Is suspended. Colonel, Infantry, Commanding. l" Headquarters , , 191 — . in the foregoing case <»f the sentence is approved but the execution thereof, In so far as it relates t'> forfeiture of pay {or to confinement) is suspended Colonel, Infantry, Commanding. ii Headquarters - , 191 — . in the foregoing case of the sentence is approved and will be duly ted I'm the execution of that portion i hereof adjudging dishonorable dis charge is suspended until the soldier's release from confinement. is designated as the place of confinement. Colonel, Infantry, Commanding. L2 Headquarters , , 191—. in the foregoing case of the sentence Is approved and will be duly mated as the place of confinement. Colonel, Infantry, Commanding. IS Headquarters , , 191 — . In the foregoing ease of it appears from the record of trial that the officer who had subscribed the charges participated as a member of the courl In the findings and sentence As such officer Is prima fade the accuser in thi case, and as the r. rd of trial contains nothing to Indicate that the court upon Investigation arrived ;it a finding thai be was not in fact such accuser, the proceedings are. in view of the provisions of the article of war Colonel, Infantry, Commanding. ii Headquarters , , 191—. in the foregoing case of it appears from the record of trial that an officer wim testified as & witness for the prosecution participated as a member of the court in the findings and sentence in view of the provisions of the article of war the proceedings are invalid. infinity)/. Commanding. APPENDICES. 373 15 Headquarters , — , 191—. To . In the foregoing case of the sentence is approved and the record of trial is forwarded for action under the forty-eighth article of war. Colonel, Infantry, Commanding. 16 Headquarters , , 191 — . To the Judge Advocate General of the Army. In the foregoing case of the sentence is approved, but the execution thereof is suspended until the pleasure of the President be known, and the record of trial is forwarded for action under the fifty-first article of war. Colonel, Infantry, Commanding. 17 Headquarters , , 191 — . In the foregoing case of the sentence is approved and will be duly executed at on , 191 — , under the direction of the commanding Colonel, Infantry, Commanding. 18 Headquarters , , 191 — . In the foregoing case the sentence is confirmed and will be duly executed at on . 191 — , under the direction of the commanding Colonel, Infantry, Commanding. B. FORMS FOR ORDERS VACATING SUSPENSIONS. Headquarters , , 191 — . 1 So much of the order published in Court-Martial Order No. — , , 191 — , these headquarters, , 191 — (or found in a record of trial by summary court approved , 191 — ), as suspends execution of sentence in the case of is vacated and said sentence will be carried into execution. By order of Col. . Adjutant. Headquarters , , 191 — . _' So much of the order published in Court-Martial Order No. — , , 191 — , these headquarters, , 191 — (or found in a record of trial l>y summary court approved , 191 — ), as suspends execution of sentence to confinement (or forfeiture of pay) in the case of is vacated and that part of said sentence will be carried into execution. By order of Col. . , Adjutant. Headquarters , , 191 — . 3 So much of the order published in General Court-Martial Order No. — , , 191 — , these headquarters, as suspends execution of sentence to dis- honorable discharge in the case of is vacated and that part of said sentence will be carried into execution. By order of Col. . , Adjutant. APPENDIX 11. COURT-MARTIAL ORDERS. A. FORM FOR GENERAL COURT-MARTIAL ORDER. General Court-Martial, Order No. 447. Headquarters Eastern Department, Governors Island, N. Y., July 21, 1919. Before a general court-martial which convened at Fort Hamilton, N. Y.„ pursuant to paragraph 6, Special Orders, No. 93, Headquarters Eastern De- partment, April 24, 1919, 1 as modified by paragraph 7, Special Orders, No. 101, Headquarters Eastern Department, May 26, 1919, was arraigned and tried : Private John Doe, 1,682,364, Company F, 29th Infantry. Charge I : Violation of the 58th Article of War. Specification: In that Private John Doe, Company F, 29th Infantry, did at Fort Jay, N. Y., on or about March 27, 1917, desert the service of the United States and did remain absent in desertion until he was apprehended at Brook- lyn, N. Y., on or about June 30, 1919. Charge II : Violation of the 84th Article of War. Specification: In that Private John Doe, Company F, 29th Infantry, did at Fort Jay, N. Y., on or about March 27 1917, through neglect, lose one overcoat, olive drab, value $14.84, and one blanket, light weight, value $3.79, issued for use in the military service. PLEAS. To the specification, Charge I : " Not guilty." To Charge I : " Not guilty." To the specification, Charge II : " Not guilty." To Charge II : " Not guilty." Or To all the specifications and charges : " Not guilty.** FINDINGS. Of the specification, Charge I : " Guilty." * Of Charge I : " Guilty." Of the specification, Charge II : " Guilty." The orders appointing the court and all orders modifying the convening order will be cited. 1 Where the accused pleads guilty or not guilty to all the specifications, or ia found guilty or not guilty of all, the form may be abbreviated as indicated. If a special plea has been made and sustained by the court, the wording will be : " Plea in ( ) sustained by the court." 375 87G MANUAL FOB COURTS-MARTIAL. Of Charge II: "Guilty." Or Of nil the specifications and charges: "Guilty."' BENT! To bt dishonorably discharge* the service ; to forfeit all pay and .alloicances ilur, or to beoonu >iuc; and to be confined n> years. (Four previous convictions consldi The sentence Is : 1 1 »i »««»>■*-« 1 and will be duly executed. The United States Dis- ciplinary Barracks Is designated as the place of confinement By command of ■. Colonel, General Staff, Chief of Staff. Offlciul: Adjutant General, Adjutant. I I . .1/. 0. M., No. 1.) B. FORM FOR SPECIAL COURT-MARTIAL ORDER. Special Court-Martial Order No. 43. Headquarters Fort Jay, N. Y., July 27, 1919. Before a special court-martial which convened at Fort Jay, N. Y., pursuant to paragraph 6, Special Orders, No. 93, these headquarters, April 24, 1919, as modified by paragraph 7, Special Orders, No. 101, these headquarters, May 26, 1919, was arraigned and tried: Private John I 1,682,364, Company F. 29th Infantry. Charge I: Violation of the 58th Article of War. Specification: In that Private John Doe, Company F, 29th Infantry, did at Fort Jay, N. Y.. on or about March 27, 1917, desert the service of the United States and did remain absent In desertion until he was apprehended at Brook- lyn, N. Y., on or about June 30, 1919. Charge II: Violation of the 84th Article of War. Iflcation: In that Private John Doe, Company F, 29th Infantry, did at Fori Jay, N. Y., on or about March 27, 1917, through neglect, lose one overcoat, olive drab, value $14.84, and one blanket, light weight, value $3.29, issued for use in the military service. To the specification, Charge I : " Not guilty." To i ' rge I : ' Not guilty." To the specification, Charge n : " Not guilty." To < lharge II : " Not guilty." Or the specifications and charges: "Nol guilty. 'Where the accused pleads guilty or not guilty to all the specifications or is found guilty or not guilty of all, the form may be abbreviated as indicated. •if a special plea has been made and sustained by the court, the wording will be: " Plea in ( ) sustained by the court." APPENDICES. 377 FINDINGS. Of the specification, Charge I: "Guilty." 1 Of Charge I : " Guilty." Of the specification, Charge II : " Guilty." Of Charge II: "Guilty. - ' Or Of all the specifications and charges: "Guilty." 1 SENTKNC'K. To be confined at hard labor for six months and to forfeit two-thirds of hif pay per month for a like period. (Two previous convictions considered.) The sentence is approved. By order of . Official : , — , Adjutant. Adjutant. 1 If a special plea has been made and sustained by the court, the wording will be: " Plea in ( ) sustained by the court." "Where the accused pleads guilty or not guilty to all the specifications or is found guilty or not guilty of all, the form may be abbreviated as indicated. (P. M. c M.. Vo. >,.) APPENDIX 12. INTERROGATORIES AND DEPOSITION. To be read in evidence before a * , United States Army, appointed to meet at , by paragraph — , Special Orders, No. — , Headquarters , i , 191 — , in the case of (in the matter of )' . -, 191—. To Please cause to be taken on the interrogatories herein contained the deposi- tion of , to be found at . Headquarters , 191 — . To who will take or cause to be taken * the deposition of the person named above on the interrogatories herein contained. 8 By of : , Adjutant. First interrogatory: Are you in the military service of the United States? If so, what is your full name, rank, organization and station? If not, what is your full name, occupation and residence? Answer : 9 . Second interrogatory : . Answer : . First cross-interrogatory : . Answer : . First interrogatory by the : Answer : . (Witness sign here) . 1 certify that the above deposition was duly taken by me, and that the above- named witness, having been first duly sworn by me, gave the foregoing answers General (or special or summary) court-martial, or military commission, or court of inquiry, or military board. 2 Name, rank, and organization of the accused, or other proper words identify- ing the particular matter in which the deposition is desired to be used. •To be subscribed by the trial judge advocate or other proper person with his name, rank, organization, and official title, as " judge advocate," " summary court," " recorder," etc. * Strike out word or words not used. 8 If it is desired to give special instructions, or if a travel order is necessary, the remaining space will be used for the purpose. "If the spaces for answers are not sufficient, extra sheets may be inserted by the officer taking the deposition. In such case he will rewrite the Interroga- tories, writing the answers immediately below the respective interrogatories. 379 380 MANUAL FOR OOT7BTS-MABTIAL. to the several Interrogatories, and thai he subscribed the foregoing deposition in my presence al — - — , this day of , 191 — . ( Name) , (Bank and organization) . (Official character, as "summary court," "officer designated to take the depo- sit inn." " notary public," etc. ) [hack.] Instructions. 1. Interrogatories, how submitted. — («> The imrty desiring the deposition Bubmits to the opposite party the Interrogatories which he wishes propounded to tin- person whose deposition he desires, and the opposite party then submits to him such croSS-lnterrogatorles, if any. as he may desire. Such additional direct and cross interrogatories may be submitted as desired; or (b) The party desiring the deposition submits to the court, military commls sion. or board the Interrogatories which he wishes propounded to the person whose deposition he desires. The opposite party then submits to the court, military commission, or board such cross-interrogatories, if any, as he may desire. The court, military commission, or board then submits such additional interrogatories as they may deem proper and desirable, and such additional direct and cross interrogatories may be submitted as are desired ; or (e) Where the court, military commission, or hoard desires that the depo- sition of a particular person be obtained it will cause interrogatories to be prepared accordingly. The prosecution and defense (or other party or parties in interest) then submit such interrogatories as they may desire. Such addi- tional Interrogatories may be included as are desired by the court, military commission, or board, or by a party in Interest. I M. C. M. par. 176.) 2. Procedure to obtain deposition. — (a) All the interrogatories to be pro- pounded to the person are entered upon the form for interrogatories and deposition, and the trial .indue advocate, summary court, or recorder will take appropriate steps to cause the desired deposition to be taken with the least practicable delay. In the ordinary case he will either send the interrogatories to the commanding officer of the post, recruiting station, or other military com- mand at or nearest which the person whose deposition is desired is stationed, resides, or is understood to be, or will send them to some other responsible person, preferably a person competent to administer oaths, at or near the place at Which the person whose deposition is desired is understood to be. In a proper case the Interrogatories may be sent to the department or other superior commander, OT to the witness himself, and in any case they will, when neces- sary, be accompanied by a proper explanatory letter. (b) When Interrogatories are received by a commanding officer he will either take or cause to be taken the deposition thereon. He may send an In- telligent enlisted man- preferably a noncommissioned officer, if available — to the uecessarj pace tor the purpose of obtaining the deposition, or he may properly arrange by mail or otherwise that the deposition be taken. The dep ositi'.n will be taken with the least practicable delay, and when taken will be sent al once direct to tin- Judge advocate of the court-martial trying the case, or other proper person, (C) If the witness whose deposition is desired is a civilian, the judge advo- cate or other proper person Bending Interrogatories as above, will inclose with APPENDICES. 381 them a prepared Voucher tor the fees and mileage of the witness, Leaving blank such spaces provided (herein as It may be necessary to leave blank, accom- panied by the required number of copies of the orders appointing the court, military commission, or board. The judge advocate, summary court, or recorder will also send with the interrogatories duplicate subpoena requiring the witness to appear in person at a time and place to be fixed by the officer, military or civil, who is to take the deposition. If the name of this oflicer is not known, the space provided for it will be left blank. If a military oflicer takes the depo- sition, he will complete the witness voucher, certify it, and transmit it to the nearest disbursing quartermaster for payment. When the deposition is to be taken by a civil oflicer, lie will be asked to obtain and furnish to the military oflicer requested or designated to cause the deposition to be taken the neces sary data for the completion of the witness voucher, and the latter will com- plete the voucher, certify it, and transmit it to the nearest disbursing quarter- master for payment. In the case of a military witness, a subpoena will not ac- company the interrogatories, but the oflicer before whom the deposition is to be taken will take the necessary steps to have the witness appear at the proper time and place. (M. C. M., par. 177.) 3. Payment of civilian witnesses, etc. — (a) A civilian, not in Government employ, duly summoned to appear as a witness before a military court, com- mission or board, or at a place where his deposition is to be taken for use before such military court, commission or board, will receive $1.50 for each day of his actual attendance before such military court, commission or board, or for the purpose of having his deposition taken, and 5 cents a mile for going from his place of residence to the place of trial or of the taking of his deposition, and 5 cents a mile for returning, except as follows : (1) In Porto Rico and Cuba he will receive $1.50 a day while in attendance as above stated, and 15 cents for each mile necessarily traveled over stage line or by private conveyance, and 10 cents for each mile over any railway or steamship line. (2) In Alaska, east of the one hundred and forty -first degree of west longi- tude, he will receive $2 a day while in attendance as above stated, and 10 cents a mile ; and west of said degree $4 a day and 15 cents a mile. (3) In the States of Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, Colorado, Utah, New Mexico, and Arizona he will receive $3 a day for the time of actual attendance as above stated, and for the time neces- sarily occupied in going to and returning from the same, and 15 cents for each mile necessarily traveled over any stage line or by private conveyance, and 5 cents for each mile by any railway or steamship. (M. C. M., par. 185.) (0) Civil officers before whom depositions are taken for use in the military service will be paid the fees allowed by the law of the place where the deposi- tions are taken. (M. C. M., par. 181.) 4. Articles of War. Abt. 2G. Depositions — before whom taken. — Depositions to be read in evi- dence before military courts, commissions, courts of inquiry, or military boards, or for other use in military administration, may be taken before and authenti- cated by any oflicer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths. Abt. 114. Authority to administer oaths. — Any judge advocate or acting judge advocate, the president of a general or special court-martial, any summary ^court-martial, the judge advocate or any assistant judge advocate of a general or special court-martial, the president or the recorder of a court of inquiry or 882 MANUAL FOR COURTS- MARTIAL. of a military board, any officer designated to take a deposition, any officer de- tails! to conduct an Investigation, and the adjutant of any command shall have power to administer oaths tor the purposes of the administration of military justice and for other purposes of military administration ; and in foreign places where the Army may be serving shall have the general powers of a notary public or of a consul of the United States in the administration of oaths, the execution and acknowledgment of legal instruments, the attestation of documents, and all other forms of notarial acts to be executed by persons sub- ject to military law. 5. Taking depositions in foreign country. — If the evidence desired from a Witness residing in a foreign country is necessary and material and is desired to be read before a court-martial, military commission, court of inquiry, or military board sitting within any of the States of the Union or the District of Columbia, interrogatories (accompanied by the necessary vouchers for fees and mileage) will ordinarily be forwarded through military channels to The Adjutant General of the Army. They will then be transmitted by the Secretary of War to the Secretory of State with the request that they be sent to the proper consul of the United States and the deposition of the witness taken. In the case of troops serving along the international boundaries outside of the United States proper, or in foreign countries, the officer exercising general court-martial jurisdiction may, in his discretion, detail an officer to take the deposition of a civilian witness or he may send the interrogatories direct to the consul of the United States nearest the place of residence of the witness with the request that the deposition be taken. In the latter case the interrogatories will be accompanied by the proper vouchers for the fees and mileage of the witness. (M. C. M., par. 182.) APPENDIX 13. SUBPOENA FOR CIVILIAN WITNESS. The President of the United States to , greeting : You are hereby summoned and required to be and appear in person on the day of , 191 — , at o'clock — m., 1 before ,' a , 8 designated to take your deposition to be read in evidence before a * of the United States, at , appointed to meet by paragraph , Special Orders, No. , Headquarters , dated , 191—, then and there to testify and give evidence as a witness for the in the case of 8 , * and you are hereby required to bring with you, to be used in evidence in said case, the following described documents, to wit : . And have you then and there this precept. Dated at this day of , 191 — . (To be subscribed by judge advocate, recorder, etc.) The icitness is requested to subscribe oh one copy of the subpoena the follow- ing and to return to the person serving the subpoena the copy thereof so subscribed. , 191- I hereby accept service of the above subpoena. Form No. 76, A. G. O. (Signature of witness.) [BACK.] Personally appeared before me the undersigned authority, , who, being first duly sworn according to law, deposes and says that at on , 191 — , he personally delivered to in person a duplicate of .the within subpoena. Subscribed and sworn to before me at this day of , 191- (Rank, organization, and ofiicial character.) 1 I. ; iic mil when inappropriate "before , a designated to take your deposition to be read in evidence." 2 When used, enter name, rank, and organization, if any. ' When used, enter official character, if any, such as judge advocate, sum- mary court, notary public, etc. 'General (or special, or summary) court-martial, 6 Kntcr name, etc., of accused or other subject of investigation, "Line out when inappropriate "and you are hereby required to bring with you, to be read in evidence in said case, the following described documents, to wit" 53915 884 MANUAL FOR 0OUBT8-MABTIAL. I Sffl i:i I I ions. 1. Articles of war. — (a > Prooesa to obtain witnesses. — Every Judge adv. ..i' a general or special court-martial ami every summary court-martial aha! have power (<• issue the like process to compel witnesses to appear and lest if > which courts of the United Stales, having criminal jurisdiction, may lawfully Issue; hut such process shall run to any part of the United States, its Ter ritorles, and possessions. (A. W. 22.) (b) Refusal to appear or testify. — Every person aol subject to military law wh>>, being duly BUbpamaed to appear as a witness before any military court. commission, court of inquiry, or hoard, or before any officer, military or civil designated t<> take a deposition to be read in evidence before such court, com mission, court of Inquiry, <>r hoard, willfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify, or produce documentary evidence b smii person may have been legally subpoenaed to produce, shall b» •1 guilty of a misdemeanor, for which such person shall be punished on information In the district court of the United States or in a court of original criminal jurisdiction in any of the territorial possessions of the United Slates, jurisdiction being hereby conferred upon such courts for such purpose, and it shall be the duty of the United States district attorney or the officer prosecuting for the Government in any such court of original criminal juris- diction, on the certification of the facts to him by the military court, com mission, court of Inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shah be a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court : Provided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the United states, shall be duly paid or tendered said witness, such amounts to be paid out of the appropriation for the compensation of witnesses. (A. W. 23.) 2. Tender of fees preliminary to prosecution. — In case a civilian witness is duly Subpoenaed under the authority of A. W. 22 and willfully neglects or refuses to appear or refuses to qualify as a witness, or to testify or produce documentary evidence, which he may have been legally subpoenaed to produce he will at once be tendered or paid by the nearest quartermaster one day's fees i ud mileage for the Journeys to and from the court, and will thereupon be again called upon to comply with the requirements of the law. Upon failing the second time to comply with the requirements of the law, a complete report of the case will be made to the officer exercising general court-martial jurisdiction over the command with a view to presenting the tacts to the Department ol Justice for the punitive action contemplated in A. W. 2::. (M. C. M. 172.) 3. Civilians not in Government employ. — A civilian not in Government employ, duly summoned to appear as a witness before a military court, commission, or board, <>r at a place where his deposition is to be taken for use before such court, commission, or board, will receive $1.50 for each day of his actual attendance before such court, commission, or hoard, or for the purpose of having his deposi- tion taken, and 5 cents a mile for going from his place <>f residence to the place rial <>r of the taking of his deposition, and 5 cents a mile for returning, as follows: (a) In I'orto Rico and Cuba he will receive $1.50 a day while in attendance, as above stated, and 15 cents for each mile necessarily traveled over Stage line or by private conveyance, and 10 cents for each mile over any railway 'or steamship line. APPENDICES. 385 (&) In Alaska east of the one hundred and forty-first degree of west longi- tude he will receive $2 a day while in attendance as above slated and 10 cents a mile, and west of said degree $4 a day and 15 cents a mile. (o) In the States of Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, Colorado, Utah, New Mexico, and Arizona, will receive $3 a day for the time of actual attendance as above stated and for the time necessarily occupied in going to and returning from the same, and 15 cents for each mile necessarily traveled over any stage line or by private conveyance, and 5 cents for each mile by any railway or steamship. (M. C. M., par. 1S5.) [Note. — 1. Travel must be estimated by the shortest usually traveled route — by established lines of railroad, stage, or steamer — the time occupied to be determined by the official schedules, reasonable allowance being made for un- avoidable detention. 2. These rates apply to the Philippine Islands. (See Cir. 45, A. G. O., 1902.) 3. A civilian not in Government employ, when furnished transportation on transport or other Government conveyance, is entitled to 57.142 per cent of 5 cents per mile (equal to 2.857 cents per mile). (Comp. Dec., Aug. 20, 1902, pub- lished in Cir. 45, A. G. O., 1902.)] 4. Civilians in Government employ. — Civilians in the employ of the Govern ment when traveling upon summons as witnesses before military courts are entitled lo 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 sleeping-car accommodations to which entitled or steamer berth when an extra charge is made therefor. They are also entitled to reimbursement of the actual cost of meals and rooms at a rate not exceeding $3 per day for each day actually and unavoidably consumed in travel or in 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 stations. (M. C. M., par. 184.) APPENDIX 14. WARRANT OF ATTACHMENT. United States vs. The President of the United States to , greeting : WHEREAS , of , was on the day of 191—, at , duly subpoenaed to appear and attend at , on the day of , 191 — , at o'clock — m., before a court-martial duly appointed by paragraph — , Special Orders, No. — , dated Headquarters , , 191 — . to testify on the part of the in the above-entitled case; and whereas he has failed to appear and attend before said court-martial to testify. as by said subpoena required, and whereas he is a necessary and material wit« ness in behalf of the in the above-entitled case : NOW, THEREFORE, by virtue of the power vested in me, the undersigned, as judge advocate of 1 said court-martial, by article 22 of section 1342 ol the Revised Statutes of the United States (39 Stat., 650), you are hereby com- manded and empowered to apprehend and attach the said wherever he may be found within the United States, its Territories, or possessions and forth with bring him before the said court-martial at to testify a<- required by said subpoena. Judge Advocate of said Court-Martial. Dated — , , 191- Form No. 272, A. G. 0. 1 If a summary court-martial, line out the words "judge advocate of." 2 If a summary court-martial, line out and substitute the necessary words. 387 APPENDIX 15. Form A. HABEAS CORPUS BY UNITED STATES COURT (WHERE A WITNESS IS HELD UNDER A WARRANT OF ATTACHMENT). RETURN TO WRIT. In re (name of party held). (Writ of habeas corpus — Return of respondent.) To the (court or judge) : The respondent, Maj. , United States Infantry, upon whom has been served a writ of habeas corpus for the production of , respectfully makes return and states that he holds the said by authority of the United States, pursuant to a warrant of attachment issued under section 3, act of August 29, 1916, twenty-second Article of War, by a judge advocate of a lawfully convened general (or "special ") court-martial (or "by a summary court-martial ") and duly directed to him, the said respondent, for execution; that he is diligently and in good faith engaged in executing said warrant of attachment, and that he respectfully submits the same for the inspection of the court, together with the original subpoena and proof of service of the same, a copy 1 of the order appointing the court-martial, sworn to as sudi. before which the said has been subpoenaed to testify, a copy of the charges and specifications in the case, sworn to as such, in which said is a witness, and an affidavit of ; : showing that said is a material witness in the case; that he has failed to appear and has offered DO valid excuse for such failure. 1 The copy of the order appointing the court and of the charges will be sworn to by the judge advocate (or summary court-martial) before an officer author- ized to administer oaths. 390 MANUAL FOR COURTS-MARTIAL. In obedience, however, to the sahl writ of habeas corpus the respondent herewith produces before the court the body of the said , and Box the reasons Bet forth in this return prays this honorable court to dismiss the said writ. Major, United States Infantry. Dated , , , 101—. Form B. HABEAS CORPUS BY STATE COURT (WHERE WITNESS IS HELD UNDER A WARRANT OF ATTACHMENT). RETURN TO WRIT. , !/ said was duly enlisted as a BOldler in the service of the tinted States at , , on , 101— for a term of '//• the offense Is fraudulent enlistment, this recital should be omitted.) APPENDICES. 391 (Here state the offense. If it is fraudulent enlistment by representing himself to be of the required age, it may be stated as folloios:) That on the day of , 191—, at the said , being under 18 years of age, did fradulently enlist in the military service of the United States for the term of years, by falsely representing him- self to be over 18 years of age, to wit, years and months; and has, since said enlistment, received pay and allowances (or either) there- under. (// the offense is desertion, it may be stated substantially as follows:) That the said deserted said service at , , on , 191 — , and remained absent in desertion until he was apprehended at , , on , 191 — , 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 map be), and formal charges have been preferred against him for said offense, a copy of which, duly certified and verified, 1 is hereto annexed ; and that he will be brought to trial thereon as soon as practicable before a court- martial, to be convened by the commanding general of the Department (or "convened by Special Orders, No. — , dated Headquarters Depart- ment, 191 — , a copy of which, duly certified and verified, 1 is herein annexed"). (// the party held is a general prisoner, the following paragraph should be substituted for the preceding paragraph:) That the said was duly arraigned for said offense before a general court-martial, convened by Special Orders, No. , dated Head- quarters Department, 191 — , was convicted thereof by said court, and was sentenced to be , which sentence was duly approved on the day of , 191 — , by the officer ordering the court (or "by the officer command- ing said Department for the time being") as required by the ■ article of war. A copy of the order promulgating said sentence, duly certified and vertified, 1 is hereto attached. In obedience, however, to the said writ of habeas corpus the respondent here- with produces before the court the body of the said , respectfully refers to the decisions cited in the annexed brief (if the case docs not involve a minor under the required age the words "respectfully refers to the decisions cited in the annexed brief" will be omitted), and for the reasons set forth in this retain prays this honorable court to dismiss the said writ. Major, United States Infantry. Dated , . 191- 'I ho copy of the charges will be certified by the adjutant ami sworn to before an officer authorized to administer oaths for military administration, in the following form: I hereby certify that the foregoing is. a full and true copy of the original charges preferred against , and that the same are in (lie usual form of military charges and conform to the rules regulating military pro- cedure. A'! jut > last paragraph, for vohioh substitute the paragraph set out in Form /.', ippendia 15.) [NBTBUCTIONfl StS TO BBTUKNH To \vi:i is nr BABJ9A6 I orpun. 'ill.' Following instructions in regard to returns under a. k. 998 and O'.t'.t, In tin' cases of soldiers who have committed military offenses and arc held for trial or punishment therefor, and of general prisoners, are for the information an). but a oopy Of the brief of authorities is not intended to be attached to the returns to writs of habeas corpus issuing from a state court. (C. '•• C. M., No. J,.) BRIEF TO BE FILED WITH A RETURN TO A WRIT OF HABEAS CORPUS ISSUED BY A UNITED STATES COURT IN THE CASE OF A SOLDIER WHOSE DISCHARGE IS SOUGHT ON THE GROUND OF MINORITY. The right to avoid the contract of enlistment of a soldier on the ground of minority will be considered under the following heads: I. Under the common law; II. Under the statutes; III. Where the minor is held for punishment. I. UNDER THE COMMON LAW. The enUstnu lit of a minor is not avoidable by the minor nor by his parent or guardian at common lair, but is only avoidable where the right to avoid it is conferred by statute. This proposition is clearly established by the decision of the Supreme Court (In re Morrissey, 137 U. S., 157, 159), where the court said: An enlistment is not a contract only, but effects a change of status. (QrinUey's case, 137 U. S., 147.) It is not, therefore, like an ordinary contract, voidable by the infant. At common law an enlistment was not voidable either by the infant or by his parents or guardians. The court cites, in support of these statements, Rex v. Rother field Greys (1 Barn. & Cress., 345, 350; 8 Eng. C. L., 149) ; Rex v. Lytchet Matraverse (7 Barn. & Cress., 226, 231; 14 Eng. C. L., 107) ; Commonwealth v. Gamble (11 Serg. & Bawle (Pa. R.), 93) ; U. 8. v. Blalceney (3 Grattan, 387, 405). In Rex v. Rotherfield Greys, supra, it was said by Best, J. : By the general policy of the law of England the parental authority continues until the child attains the age of twenty-one years; but the same policy also requires that a minor shall be at liberty to contract an engagement to serve the State. When such an engagement is contracted it becomes inconsistent with the duty which he owes to the public that the parental authority should continue. The parental authority, however, is suspended, but not destroyed. When the reason for its suspension ceases the parental authority returns. In Rex v. Lytchet Matraverse, supra. Bayley, J., after quoting these views Of Best, J., says : Lawrence, J., in Rex v. Roach (6 T. R., 254), seems to take the same view of the subject and to consider the authority of the State paramount to that of the parent so long as the minor continues in the public service, but as soon as he leaves it then the parental authority is restored. It is clear from these authorities and others which could be cited that at common law the enlistment of a minor of sufficient capacity to bear arms was valid regardless of age. The right of the State to the services of such minors is forcefully laid down in Lanahan v. Birge (30 Conn., 438). See also Coo-ley's Constitutional Law, page 99, where on the authority of Ex parte Brown (5 Cranch, C. C, 554), and United States v. Bainbridgc (1 Mason, 71), it is said: Minors may be enlisted without the consent of their parents or guardians when the law fails to require such consent. II. UNDER THE STATUTES. The pertinent statutes are the following: Sec. mo, r. s. Recruits enlisting in i h«- Army musl be effective and able-bodied men, and between the ages of sixteen and thirty-five years at the time of their enlistment. This limitation as to age shall not apply to soldiers reenlisted. 394 MANUAL FOE COUKTS-MART1AL. This section was modified by the ad of March 2, L899 (80 Stat, 978), which provides: That the limits of age for original enlistments in the Army shall be eighteen and thirty-five years; and again modified by section 7 of the selective draft acl <>f May is, 1917 (40 Stat, 76, 81), and by Chapter xm of the Army Appropriation act of July 9, 1018, providing: That the qualifications and conditions for voluntary enlistment as herein provided shall be the same as those prescribed by existin g law Cor enlistments In the Regular Army, except that recruits for service In the* staff corps and departments may be accepted who arc between the ages Of forty-one and tit'ly-tive years, both inclusive, at the time of their enlistment, and that all other recruits must be between the ages of eighteen and forty years, both Inclusive, at the time of their enlistment SEC. HIT. K. S. No person under the age Of twenty-one years shall be enlisted <>r mustered into the military service of the United States without the written consent of his parents <»r guardians: Provided, That such minor has such parents or guardians entitled to his custody and control. Tins section is replaced by the provision of section 27, national defense act of June :;. L918 (89 Slat., 186), which reenacts Lt in the same words, substituting the age of IS years for the age of 21. SEC. 1118, R. S. No minor under the age Of sixteen years, no insane or intoxicated person, no deserter from the military service of the United States, and no person who lias been convicted of a felony shall be enlisted or mustered into the military service. 1. The statutes confer no right upon the minor to avoid his enlistment, cer- tainly not if he be 16 years of ago or over. No case lias been found directly in point holding that a minor under 16 pears- of age, if of sufficient capacity to bear arms, may avoid his enlistment. Section lilG, R. S., as amended, prescribing the age limits of original enlist- ment, was made for the benefit of the Government and not the minor. (In re Morrissey, 137 r. s., 157; In re Qrimley, 137 U. S., 147; In re Wall, 8 Fed. Rep., 85; Tn re Davison, 23 Fed Rep., 618; Tn re Zimmerman, 30 Fed. Rep., 176; In re Spericer, 40 VM. Rep., 149; In re Latoler, 40 Va\. Rep., 233; Solomon v. Daven- port, 87 Fed. Rep- 318; Wagner v. Gibbon, 24 Fed. Rep., 135.) Section L117, R. S., as amended, while recognizing the right of the parent lo the services of the minor, confers no right in the minor to avoid his enlist- ment. See the cases cited above. In the Morrissey ease the Supreme Court of the United States said that the |.ro\ Lsion Of section 1 1 L6, R. S.. is for the benefit of the parent or guardian * * * but it gives no privilege to the minor * * * an enlistment Is not a contract only, but effects a change Of status. It is not. therefore, like an ordinary contract. voidable by the infant * * *. The contract of enlistment was good, so far as the petitioner is concerned. He was not only de, facto but de jtn< a soldier amenable to military Jurisdiction. Whether the designation of the age limit of i<"> years In section HIS, R. S., is such as p> make the enlistment of the minor under 16 years of age void or voidable by the minor has not been decided. On principle, the ml \ If of sufficient capacity to render military service, should not he permitted to avoid his enlistment obtained through his fraudulent statements as to his age. HOW- this may be. If the minor continued to serve and receive pay after passing thai age he — acquires the status of a soldier like one who was enlisted when over 16 years without the consent of his parents, and a court-martial has jurisdiction to try and sentence him to punishment for desertion, from which sentence be can not be discharged on habeas corpus on petition of himself or his parents. {Ex parte Hubbard, 182 Fed, Rep., 76.) APPENDICES. 395 2. Tht statutes requiring the consent of tin parent or guardian of a minor to his enlistment (section 1117, B. 8., amended by section 27, act of June S, t916) impliedly confer upon the parent or guardian the right to avoid an en- listment entered into by a minor under the prescribed age without the required ent, where the minor is not held for trial or punishment for a military offi nse. In support of this proposition see the cases cited under II, proposition 1. 3. A parent or guardian with knowledge of the enlistment of a minor under the prescribed age and acquiescing therein for a considerable period, may be held to be estopped from asserting the right to avoid the enlistment. In support of this proposition see Ex parte Dunakin (202. Fed. Rep., 290), where it was held, quoting from the syllabi : Where a minor enlisted without the consent of his parent or guardian, and his mother, who was his surviving parent, on learning of his en- listment shortly thereafter, did nothing to repudiate the same or to secure his release, and testified that she would have been reconciled to it, had he remained in the Army and not deserted, but that after his desertion she wanted to keep him out of the Army, her acts constituted an implied consent to his enlistment. 4. A minor fraudulently enlisting and remaining in the service after attain- ing the legal age of enlistment, or the age beyond which parental consent is not required, thereby validates his enlistment. In support of this proposition see the case of Ex parte Hubbard (182 Fed. Rep., 76), where the court held, quoting the syllabus: A minor enlisted in the Army when under the age of 16, who has continued to serve and receive pay after passing that age, acquires the status of a soldier like one who was enlisted when over 16 without the consent of his parents, and a court-martial has jurisdiction to try and sentence him to punishment for desertion, from which sentence he can not he discharged on habeas corpus on petition of himself or his parents. (C. M. C. M., No. .'/.) III. WHERE THE MINOR IS HELD FOR' PUNISHMENT. Neither the minor nor his parent nor guardian may avoid the enlistment \he sold it r is held for trial or under sentence for a military offense. In support of this proposition see the cases cited above under II, proposi- tion 1, and also the following: In re Kaufman (-11 Fed. Rep., 876) ; In re Dohrendorf (40 Fed. Rep., 148) ; In re Cosenow (37 Fed. Rep., 668) ; In re Dowd (00 Fed. Rep., 71S) ; In re Miller (114 Fed. Rep., 83S) ; United States v. Reaves (126 Fed. Rep., 127) ; In re Lessard (134 Fed. Rep., 305) ; Ex parte And* rson 1 16 Iowa, 595) : MeConologue's case (107 .Mass., 154, 170) : In re Car- ver (142 Fed. Rep., 623) ; In re Scott (144 Fed. Rep., 79) ; Dillingham v. Booker (163 Fed Rep., 696) ; Ex parte Rock dli Fed. Rep., 240) ; Ex parte Hubbard I L82 Fed. Rep., 76) : Ex parte Lewkcnoitz < L63 Fed. Rep., 646) ; United States v. Williford (220 Fed. Rep., 291). The reasons given for these decisions are that the enlistment of a minor in ill" Army without the consent of his parenl or guardian required by section 1117. K. S., "is not void, but voidable only"; that the soldier being nol onh ado but de jure a soldier, he is BUbjed to the Articles of War and may commit a military offense; and that If held for trial or punishment for a military offense, the interests of the public in the administration of justice ar.- paramount to the righl of the parenl or guardian, and require that the soldier abide the consequences of his offense before the question of his dis- charge will be considered by the court. In the Miller ease (114 Fed. Rep., MANUA1 I OB '••■'•■■ i \; . the court supported Its holding by the analogy of h minor held for pun- tor a i i\ 11 offense, saj Ing : The common law, unaided by Btatute, Cully recognizes the parents' rlghl to the custody and services of their minor child; but it has been held thai they could, bj the writ of habeas corpus or otherwise, obtain his custody and his Immunity when he was held by an ..nicer of a civil court of competenl jurisdiction to answer a charge of orlme. His enlistment having made the prisoner a soldier notwithstanding his mi- nority, he is amenable to tin* military lour just as the citizen who is « niinor is amenable to the civil law. 77m- parents can not prevent the lauf 8 enforcement in either case * * *. cited were approved in the Reaves case (126 Fed. Rep., 127), • upon full consideration of the authorities the Circuit Court of Appeals ided Reaves, a minor, who had deserted from the Navy, to custodj naval authorities :is represented by the chief of police who had apprehended bJm. lu tin- Carver cast (142 Fed. Rep., 623), the sylldbus. Is as follows: A minor under the age of 18 years who unlawfully enlisted in the Army wlthoul 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 be Is under arrest for desertion- nor until he has been discharged from such custody or has Berved the sentence Imposed on him t>y the military tribunal. In the Lewkowitz cast (163 Fed. Rep., 646), theeyllabus roads: A minor who by misrepresenting his age has fraudulently enlisted In the Army without the consent of his parents and thereby subjected liimscii to punishment under military law will not he relieved from such punishment by the civil courts by discharging him on a writ of habeas corpus on the application of his parents, i wen though the military prose- cution is not instituted until after the writ was i This was followed by the unanimous opinion in the Circuit Court of Appeals cast (United States v. Wllliford, 220 Fed. Rep., 291), In which the court expressly approved the views stated in the Lewkowitz <■,/.<«■, quoting in Tin, it. S., relating to procedure under writs of habeas corpus, which is follows: The court, or justice, <»r judge shall proceed in a summary way to determine the facts of the case by hearing the testimony and arguments and thereupon to dispose of the party as law and justice require. The court added : Law and justice do not, In our opinion, require Love to be withdrawn from the militarj authorities and relieved of liability for his offense In favor of his mother's rlghl to his custody. By act Of July 27, 1892 (27 Stat, 278), "fraudulent enlistment and the re- ceipt of pay or allowance thereunder" was .made a military offense, punishable under the sixty-second article of war. The offense is now defined In article 54, tides of War. approved Augusl 29, L916 (39 Stat, 669), which pro- vider thai the offense "shall "be punished as a court-martial may direct." A ■ who procures his enllstmenl by willful misrepresentation or concealment as I • his qualifications for enlistment commits this offense, and the statute au- thorizes his punishment therefor. In general, it may be stated that where .. minor has committed a military offense the interests of the public in the admin- 1..11 of jii-t ice are pa ra mount to the rlghl Of the parent and require that the soldier shall abide the consequences of his offense before the rlghl to his dis* lassed u] The soldier should nol be allowed i<> escape punlshmi al though his parents assert their rlghl to his services. A in civil life is liable m punishment for a crime or misdemeanor, even h his confinement may interfere with the rights of his parents; and the ah • authorities clearly apply the same nule to a minor held for trial or pun- isbmeiit for a military, offense. \C M . ('. M .. Vo. ',.) APPENDIX 16. [Sheet 1.] WAR DEPARTMENT WAR DEPARTMENT Form No. 33S. Approved by the Comptroller of the quartermaster corps Treasury April 29, 1914 PUBLIC VOUCHER Voucher No General Account. Detail Account. . COMPENSATION, CIVILIAN WITNESS APPROPRIATION: PAY, ETC., OP THE ARMY, 191 Symbol The United States to , Dr. Address : Object Symbol Amount U.S. Notations For mileage as a witness from to and For allowance as a witness while in attendance — Giving deposition at for use before a court-martial from 191 ,to ,191 , as per I certify that, as stated above, I attended as a witness for the period named, and as such the travel between the places named was required. (Payee) (Do not sign in duplicate) Examined by (Account to be completely Oiled in before certification, and no alteration or erasure to be made thereafter) I certify that , a civilian not in Government employ, has been in attendance from , 191 , to , 191 , inclusive j 3 ? a . mater ial witness before a court-martial duly convened at this place, \ \giving deposition for use of a court-martial convened under attached orders, J and that he was duly summoned thereto from , and was not furnished transportation by the Government for any portion of the journey. Place Date 191 (Title) Paid by check No , dated favor of payee named above for $ . 191 , of on ., in 397 MANUAL FOR COURTS-MARTIAL. aived , 191 , of , in cash, the sum of ilollai* an«l cents, in full payment of the above account. (This form to be used only for payment of civilian witnesses not in Government employ) ►»i o *v M o & 2 5 ►cJ g D" 2 p n (V 4 o B p 5 o s & P O* ll si 1 c n V n CD O s f P o a 3 1 1 3 | "Si n> w ra P a. 3 3" a> Bfl CO § r 5£ oa WAR DEPARTMENT Form No. 338. Approved l>v the Comptroller of the Treasury April 29, 1914 Voucher No General Account , Detail Account .. [Sheet 2.] WAR DEPARTMENT QUARTERMASTER CORPS PUBLIC VOUCHER COMPENSATION, CHILIAN WITNESS appropriation: pay, etc., op the army, 191 Symbol The United States To , Dr. Object ■Symbol Amount U.S. Notations For mileage as a witness from to and return, being miles, at cents per mile For allowance as a witness while in attendance— from ,191 , to , 191 , as per oartUtoate hereon, <'■':•'*, at $ per day Total . EXAMINE! BY APPENDICES. 309 MEMORANDUM VOUCHER (To be filled in and retained by paying officer) Voucher certified by . Voucher approved by- Paid by check No , dated . . . in favor of payee named above for $. 191 , of on Paid in cash by (Date) Funds derived from check No on $ dollars and cents. (This form to be used only for payment of civilian witnesses not in Government employ) 1 - 1 5 1. 1 0> 1 ■'-> 1 >> 1 «3 1 A ! © 1 4) |a in m a s 1 '> o pf o xn a O O u o ACCOUNTS OF (Name of disbursing officer) (Official designation) - (Place where located) (Period for which voucher is rendered) APPENDIX 17. WAR DEPARTMENT Form No 350 a. Approved bv the Comptroller of the Treasury April 29, 1914. [Sheet 1.] WAR DEPARTMENT (Bureau or Office.) PUBLIC VOUCHER REIMBURSEMENT OF TRAVELING EXPENSES Appropriation Appropriation Appropriation The United States, to. Symbol. Symbol . Symbol. Dr. Voucher No General Account. Detail Account.. Address: For reimbursement of traveling expenses incurred In the discharge of official duty from , 191 , to ,191 , under writ tea authorization from the , dated ,191 , a copy of which is as per itemized schedule below Amount claimed, $ U.S. notations Object symbol Schedule of expenditures Sub- voucher No. U.S. notations MEMORANDUM OF TRAVEL PERFORMED UPON TRANSPORTATION REQUESTS Examined by Date of travel No. of ranspcr tation U.S. notations I do solemnly * that the above account and schedule are correct in all respects; that the distances as charged have been actually and necessarily traveled by me on the dates therein specified; that the amounts as charged have been actually paid by me for traveling expenses; that no part of the account has been paid by the United States, but the full amount is due; that all expenditures included in said •li)l 402 MANUAL FOR COURTS-MARTIAL. account other than my own personal traveling expenses were made under urgent and unforseen public necessity; and that it was not, for the reasons stated herein, feasible to have such expenditures paid directly by a disbursing officer. Payee: (Do not sign in duplicate) Subscribed and f of , A. D. 191 to before me at , this. .day or aflirm. t Sworn to or affirmed. I certify that the above account is correct, that the travel was performed, and that it was necessary for the public service. Approved for $. Date: Tide: Title: Taid by check No. . . ., dated ,191 , of . of payee named above, f or $ .on , in favor OB Received of in cash, the sum of. (Date) cents in full payment of the above account. .dollars and. H g 8 B 1 W Q a 2 2 S | i s « 1 < 3 * ! S Si * 0) \ £ • ►J W !& > < '■§ § a ■a !l ! «r fa h S o 53 i u >> i « w HOT O Si & | 1 o 1 p lO 1 o IS ZS5 otH I o o m a> 9 ■a 4) 1 ^ 1* IS ifc 3 5 i a) ! * w 3 M o fa S S a) o fa Is ifa APPENDICES. 403 WAR DEPARTMENT Form No. 350 a. Approved by the Comptroller of the Treasury April 20, 1914. [Sheet 2.] WAR DEPARTMENT (Bureau or Office.) PUBLIC VOUCHER. Voucher No General Account. Detail Account . . REIMBURSEMENT OF TRAVELING EXPENSES Appropriatioii Symbol $ . Appropriation Symbol $ . Appropriation Symbol $ . The United States, To , Dr. Address: For reimbursement of traveling expenses incurred in the discharge of offi- cial duty from ,191 , to ,191 , under written authoriza- tion from the , dated ,191 , a copy of which is as per itemized schedule below Amount claimed, S U.S. notations Object symbol Date 101 Schedule of expenditures Sub- voucher No. Amount U.S. notations memorandum of travel performed upon transportation requests Examined by Date of travel No. of transpor- tation request U.S. notations MEMORANDUM VOUCHER. (To be filled in and retained by paying officer) Vouchor certified by . Voucher approved by Paid by check No , dated favor of payee named above, for $. 191 , of on Paid in cash by , dollars and (Date) Funds derived from check No on 404 MANUAL FOR COURTS-MARTIAL. o V. 9 •O W s ,-. •a a 3 H 0) a •o B 1 . ; ad i °> 1 |a ■ W o w W H91 XZ WW w^ CAW h o CO P o u o a o bC a 2 3 a> 3 o g 1 a> 3 i A it 3 O s g < o Q o £ n I £ a "3 y, _C w s a> m M 1 "-' o i w APPENDIX 18. [Sheet 1] WAR DEPARTMENT WAR DEPARTMENT Form No. 339. Approved bv the Comptroller of the QUARTERMASTER CORPS Treasury April 29, iyi4 PUBLIC VOUCHER Voucher No General Account. Detail Account.. PERSONAL SERVICES— REPORTER APPROPRIATION : PA V. ETC. , OF THE ARMY, 191 Symbol The United States to , Dr. address : Object Symbol Date 191 Amount U.S. Notations For services as a reporter before a convened at , pursuant to Special Orders (Court, board, or commission.) days in going to, in attendance on, and return- (Court, board, or commission.) in going to and returning from the court, being miles, Total I certify that as s Dlaces named was re bove stated I rendered the services named, and the travel between tho quired. (Payee) EXAMINED BY (Do not sign in duplicate) (Account to bo completely filled in before certification, and no alteration or erasure to be made ther 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 correct. (Title). Paid by check No , dated ,191 , of favor of payee named above, for $ Received , 191 , of , in cash, the sum of md cents, in full payment of the above account . dollars 406 MANUAL FOR COURTS-MARTIAL. 9 o -i «»s 1 *t o g o p 1 a to O 4 p r, E * o | > &!! c E&l t» IB 1 2 B 1 2 1 o I C n D" fD (V ft f p o D CO . |l a! ■ o 5 P << fB 1 o. w ! »CJ 1 o. 3- ►1 WAB DEPARTMENT Form > Approved by i he Comptroller of the Treasury April i".>, 1914 [Sheet 2] WAR DEPARTMENT QUARTERMASTER CORPS PUBLIC VOUCHER Voucher No General Account . Detail Account.. PERSONAL SERVICES— REPORTER Symbol. appropriation: pay, etc., of THE ARMY, 191 The United States to , Dr. address: Object Btmbol DVTE 191 Amount B. Notations For services as a roportcr bofore a convened at , pursuant to Special Orders No , Department ,191 : (Court, board, or commission.) days in going to, in attendanceon, and returning (Court, board, or commission.) In going to and returning from the court, boing Total MEMORANDUM VOUCHER (To bo filled in ami retained by paying officer.) EXAMINED IV Voucher certified by. . Voucher approved by . Paid by check No , dated ... ., 191 payee named above, f or $ APPENDICES, of.. 407 on , in favor of Paid in cash by , dollars and cents. (Date) Funds derived from check No on $ 5? 2 H o" Hd & 2 c •3 o p B o 3 p B re t* <-kI tr < re S3 n 5 H C« 2! p B re i Q v. f P a n O 1 r. V re O 1 re d -» , re D C re n <-> o B. 2 APPENDIX 19. REPORT OF INQUEST. , 191—. From : summary court-martial. To: Commanding officer. Subject : Report of inquest over body of , deceased. 1. Pursuant to your letter (or, your oral instructions) of , I viewed on the day Of , the body of , found dead at this post, and have examined the following witnesses, whose testimony is appended to this report : 2. From a view of the body and from the evidence before me I find that at or about m., on the day of (or, on or about the day of ), , a of , Regiment of (or, a civilian), died a natural death (or, committed suicide; or, was accidentally killed in manner and circumstances as follows; or, was killed by or by some person or persons unknown, in manner and circumstances as follows : (or otherwise, as the case may be). 409 APPENDIX 20. GENERAL ORDERS, NO. 7, WAR DEPARTMENT, 1918, AND PROCEDURE THEREUNDER. run from a specified date, which date, In any given case, will be ilic date of original action by the reviewing authority. 5. The procedure prescribed in rules l and 2 shall apply to any commanding general In the Beld whenever the Secretary of War shall so decide and shall direct Buch c manding general to send records of courts-martial Involving the 'lass of cases and the character of punishmenl covered by the said rules, either to the office of the Judge Advocate General at Washington, I >. <'.. or to anj branch thereof which the Secretary of War may establish, for final review, before the sentence shall be finally executed. c>. whenever, in the judgment of the Secretary of War, the expeditious re df i rials by general courts-martial occurring In certain commands requires the Lshmenl of a branch of the .Indue Advocate General's office at some con- venient point near the said commands, he may establish such branch office and direct the sending of general court-martial records thereto. Such branch • when so established, shall be wholly detached from the command of any com- ing general In the field, or of any territorial, department, or division com- mander, and shall he responsible fur the performance of its duties to the Judge Advocate General. [250.4, A. (i. o.| II There is hereby established, in aid of the revisory power conferred on the Advocate General of the Army by section 1199, Revised Statu) the office of the Judge Advocate General, at Paris, Prance, i ither point convenient to the headquarters of the American Expedition- orces in Prance, to be selected by the officer detailed as the head of such branch office, after conference with the commanding general of the American Expeditionary Forces in Prance. The officer so detailed shall be the Acting Judge Advocate General of the American Expeditionary Porces In Europe, and shall report to and be controlled in the performance of his duties by the Judge Advocate General of the Army. The records <>f all general courts-martial in which is imposed a sentence of death, dismissal, or dishonorable discharge, and of all military commissions originating in the said expeditionary forces, will be forwarded to the Bald branch Office for review, and it -hall be the duty of the said Acting Judge Advocate General to examine and review such records, to return t<> the proper command- ing officer for correction such as are Incomplete, and to report to the proper Officer any defect or irregularity which renders the findings or sentence invalid or i id. in whole or in part, to the end that any such sentence or any part thereof so found to be invalid or void shall not be carried into effect The said Acting .Indue Advocate General will forward all records in which action is complete, together with his review thereof and all proceedings thereon, to the Judge Advocate General of the Army for permanent file (<'■ If. C. \£.,No.4.) [250.4, a. <;. o.] B ORDEB ok I in; Si < ki;i \i:\ 01 W w: \ JOHN BIDDLH, i/'//o/ General, Voting Chief of Staff. OfFICIA] : II. I'. .\li CAIN, The idjutant General. APPENDICES. 4 1 3 PROCEDURE UNDER GENERAL ORDERS, NO. 7. (Extract from a letter of Instructions from the Judge Advocate General to all department and division Judge advocates.) The procedure under General Orders, No. 7, War Department, 1918, was es- tablished to enable the War Department to do substantial justice In those cases in which it is found, on reviewing, in this office, the records of trial by general court-martial, that persons have been Improperly or Insufficiently charged with, or convicted without substantial evidence or upon illegal evidence of serious crimes or offenses, before dishonorable discharge or dismissal lias become an ac- complished fact. Cases of this character are not numerous, but a case occasion- ally arises in which remedial action by way of remission of sentence with an offer of restoration to duty or reenlistment is, at best, but a futile attempt to do jus! ice so long as a discharge or dismissal which has been finally executed can not be reached and set aside or reversed, but must remain standing forever against the record of the accused. Cases where the death sentence is imposed also fall within this class. Croat embarrassment would result if it should be held that a death sentence was illegal after the same had been executed. In order to bring about the necessary cooperation in the enforcement of Gen- eral Orders, No. 7, War Department, 1918, the following suggestions are made: (a) In all records of trial by general court-martial falling within the pur- view of General Orders, No. 7, War Department, 1918, to wit: Cases involving a sentence of death, dismissal of an officer, or dishonorable discharge of an en- listed man, in which it is not intended to suspend the dishonorable discharge, the department or division judge advocate should prepare a review of the evi- dence in the case. This should be as brief and concise as possible, but should outline clearly the evidence upon which the conviction must rest. A copy of this review or summary of the evidence should be attached to the record to which it pertains and forwarded for lile therewith in this office. (6) In all cases in which the execution of sentence is deferred until the record of trial is reviewed iu this office, judge advocates, prior to forwarding the record of trial, will take the necessary data from the same, draft the general court-martial order, give it the date of action by the reviewing authority, and, upon receiving notice from the office of the Judge Advocate General, or any branch thereof, that the record is legally sufficient to support, the findings and sentence, cause the general court-martial order to be published in the usual form. This will make unnecessary the return of the record. (c) The action of a reviewing authority upon a record of trial which is to be forwarded to this office for review before the execution of sentence should be entered in substantially the following form, the necessary changes being made to conform the action to the facts of each particular case: (Place and date.) In the foregoing case of the sentence is approved (but the period of confinement Is reduced to ). The is designated as the place of confinement. The execution of the sentence will he directed in orders as of this dale after the record of trial has been reviewed in the office of the Judge Advocate General, or a branch thereof, and its Legality there determined. Juris- diction is retained to take any additional or corrective action that may be found necessary prior to or at the time of the publication of the general court-martial order in this case. Commanding. 414 MANUAL FOR COURTS-MARTIAL. (d) when the record of tri;ii in any case is found Legally Insufficient to sup- porl Un- findings and sentence, th>> record will be returned for the necessary correOTve action, which will be entered on the record in substantially the fol- lowing form, the* necessary changes being made to conform the action to the facts of the particular case : ( Place and date.) In the foregoing case of under the jurisdiction retained in the action dated - — , the following corrective action Is taken. (Action.) As thus modified the sentence will be duly executed, , is designated as the place of confinement (Or such final order by way of dis- posing Of the case as the action may require.) Commanding. When the additional or corrective action outlined above has been taken, the necessary changes will he made in the general court-martial order prior to the publication of the same. It is needless to say that any prior action which has been changed or nullified by subsequent action will not be included in the general court-martial order as puhlished. (/) The letter of advice sent from this office will give in each case the court- martial record number given the record upon its receipt in this office.' It is desired that the printed copy of the court-martial order he made to carry at the end thereof, in brackets, the number reported by this office, thus: [J, a. G. O. No. .| live copies of the general court-martial order in each case will, when published, he forwarded to this office as promptly as possible. (£'. J/. <'. .1/.. No. ',.) INDEX. [References are to paragraphs, except who ! by the letter "P" preceding tko number, and Art. !es ol War are indicated by the letters "A. W." preceding the number.] Par. Abandon, defined p. 226 Abandoned propi rty, dealing in 430; A. W. 80 Abandoning command to enemy -125; A. W. 75 Abandonment of command by commander, subordinates forcing 426; A. W. 76 Abatement, Pleas in. See Courts-martial, Pleas. Absence: Effect of absence of member of court-martial 93 Of appointing authority, who may act during 369 Of member of court-martial , procedure with reference to 85 Absence wi tli leave, effect of, on power of commanding officer to appoint general court-martial 18 Absence withoul leave 412; A. W. 61 Continuance of, presumption as to 284 Continued, presumption as to intent 2S4 Failure to rep rl for routine duty during absence without leave, how charged 66 How proved 284 Punishment for 66, 149, 281, 283-284, 412; A. W. 61 Specifications for p. 339 Time lost to be made good 38n; A. W. 107 Abuse, defined p. 244 Accomplice: Competency 1 >f accused when testifying against 217 • of turning State's e"\ Ldence 216 Accomplices, statements of conspirators and, when admissible 224 Account. Si . Books of Account; Evidence, Documentary. Accounts, how proved 237 Accouterments, losing, spoiling, etc 74 (c), 281, 299, 434 ; p. 344 ; A . W. 84 • officers or soldiers, triable by court of inquiry 452 Accused: ittal of, by summary court-martial, record of 351 (i) Acquittal of, release from confinement :'.. Action by reviewing authority when accused is transferred to another department 375 Admissions by, of facts material to prosecution, use of by court 292 Appeal by, contents of Appeal by, to superior authority 333, 335; A. W. 104 Am -t of 54, 120; A. W. 69 Aswi; iwn behalf 214 Challenge by, only for cause stated to court li'ii -. time limit for serving 54, 77, SO; A. W. 70 Competency of, when testifying against an accomplice 217 ■ t of, during trial 86 Confession to superior inadmissible unless accused previously warned Confinement of 420: A. W. 69 Confronted with witness, whoa to be 165; A. W. 25 Control of, bj court-martial during trial 53915°— IS 29 415 41G ex. I letter "V" preceding the m mber.] ■ court-mart u 123; A. W. 17 courl of inquiry amary court i i:il by court-martial 80 eked examination of -1-1 90 214 menl 111. 155; A. W. 21 of turning S1 ite't e> idence 216 Entitled to copy of record of trial by general court-martial. .117. 354-357; A. W. 1 1 1 avictionsof 349; p. L68 lartial p. ; dnatioD of witnesses by, in summary court Freedom ofej pr< ssion in Btatemenl to court 291 hed beyond reasonable doubt 296 Guilty of general rather than specific article • to prepare for trial by general court-martial 80 How brought before the courl vS How described in charge and specification 7 1 II. •.. name should be pleaded. 74 ity, procedut te 219 no1 ordinarily to be tried in ^ s Person in sale of provisions 437; A. W. 87 mber of court-martial as witness alter 131 (d) 'unary court tatemenl 216 lure where he fails to testify ■ 1 ' W. 21 Re] •' arrest, when acquitted, or when convicted qoI include dishonorable disci nfinement... 332 a ixed to Bubmil to physical « samination, not self-crimination. . . . 236 (a-c) i opy of charges 79 Righl of, to copy of proc lings, where there is joint trial i ^08 Right of , to demand trial martial 333, 334; A. W. L04 i onfidential to which prosecution has - •"• ■ lunsel and witnesses U0 i mi I... In... character evidence ■ 205 of, upon investigation of charges 76 . ill, referent e to <-\ id< ■ porl of medical board re nity 219 Second trial of, for same offense ' 19; A. W. io Selection of ]08 ' Si tementsand arguments of, at close of trial To be inform ord 117 i Mil. .ri 1 1 to be worn in court s: ' When be may be tried in uon oS Where seated in courl 83 INDEX. 417 [References are to paragraphs, except where paces :a. ing the number, and Articles of War are Iodic irs "A. W." preceding the number.] Accused persons: Par. Refusal to aid in apprehending p. 224 Refusal to deliver to civil authorities p. 224- Convening authority of general or special court-martial must no1 be ac- 14, 21 Counsel for, before court of inquiry 463 1 17, 22 inelligible as member of < ourt-martial, general or spe< ial 6, 129; A. W. 8, 9 . Judge advocate should not be 102 .May be summary court-martial when only officer present with a command. 6 May not appoint general or special court-martial to try accused 14, 21 Not to be member of court-martial, general or special 6, I i L9,2] 24, 129-131, A.W.8,9 Whether < onvening authority is, how raised and determined 17 Wheti % authority is, is question of fact 17 Whether member is. how raised and determined I :;0 Whether member is, is question of fact 130 Acquittal: A pproval or disapproval of, by appointing authority 369 Former, for same offense, how proved 274 ( >f accused when jointly tried 301 Record of, genera! and special courts-martial p. 177 (41), 358 summary court 351 (j) judge :'dvc Administration of oaths for military purposes, etc 13S (6); A. \Y. 1 L4 Powers of notary public in foreign {daces where A rmy is serving ' W. 1 14 Action: After promulgation of sentence of general or special court-martial 101-404 hority, must be in person 376 By reviewing authority, record of 370 By reviewing authority, when accused is transferred to another depart- ment Additional cl I 73 1 distinguished from consolidated charges 73 When tried separately 73 When tried with original charges 73 Adjournment of court-martial 81; p. 355 At close of 1 rial 7l 355 During trial Adjutanl of any command: Administration of oathsfor military purposes, etc 188 (6) ; A. W. 114 ublic in foreign places where Army is serving. L38(i ; LW, 114 Administrative rules, under Executive order, prescribing maximum pui 349; p. 169 Admissions: Against i 226 Against penal interests of parties other than accused 226 cused 226 292 Advisi to desert 410; A. W. 59 418 INDEX. Indlcab d by ' ; » a&xx, w ■■ preceding the Dumber.] Par. [uadron, when a detachmenl for discipline 28 Affidavits, not admissibL - ,i!l Affirmation. men! todefraud United Stater through false claims 144 p.2 5;A.W.94 Alarm- false, by officer or soldier in camp, garrison, or quartera 347, ;n : A.W.75 civilian witnesses in 185 (6) i in either military or civil courts in, is bar to trial in other for same i bo* pleaded 71 W Allotments, compulsory, can not be affected by court-martial sentence 311 Allowances, forfeiture of pay and 324 Alternat ive pleading, improper dments, of i barge by judge advocate, when proper 97 Ammunition: away 425 : p. 228 ; A. W. 75 Wasting of 434; p. 344; A.W.84 Ammunition train, when a di tac'iiucni i"o; f pari of finding of guilty- lesser included offense 377 (a) atence 371 . effect of : 372 - ace, manner of t '" -5 Of a atence of summary court, when necessary 44; A. W. 14 < »i sentences Ln v. hole or in part '■'"''■ A- "■ '' ' Powei incident to power of, of sentences 377 Approval of trial cases. Set Reviewing authority. Appro> Lng authority, power of to confirm sentence 3/8 Arguments: By accused to court 293 By accused, contents of I'. , coun ■ I to courl - K:> Bj judge advocate to court ~"^ Argument, to court, when required to be written Ill !,;■, fees and mileage of civilian witnesses in 93 INDEX. 419 [References arc to paragraphs, except where p ted by the letter " P r& ling the number, and Articles of War are indicated by the letters "A. W." preceding the number.] Pa;. Arms, casting away ;25: p. 228; a. W. 75 Army field cl< rks, subjeel to Articles of War Arraignment: Pleas or refusal of accused to plead 144, 145, L55; A. W. 21 Time of, on additional charges T3 Arrest: Abuse of authority to arrest 51 Authority of president of court-martial to order 89 Brea* hof 420; p. 2 L8; A. W. 69 Control of court-martial as to 47 (c) Defined 46 (c); p. 218; A. W. 69 Disobedience of order into, by one engaged in quarrel, fray, or disorder p. 217; A.W.68 Duration of 54, 77, 80; A. W. 70 Effect of failure to arrest upon j urisdiction of court 46 (n) How effected 48 Limit of duration of, without trial 77: A. \Y. 70 Limits of 46 (c); A. W. 69 Of accused 420; A. W. 69 Of civilian charged with offense, when proper 420; A. W. 69 Officer in, may prefer charges 63 Of medical officer, when authorized 51 < »f offit er charged with offense when proper 420; A. W. 69 Of officer without preferring charges, procedure on 50 Of ethers than officers or soldiers, when authorized 46 (c), A. YV. 69 Of soldier charged with offense, when proper 420; A. W. 69 Of soldiers, when and how authorized 52 Penalty for breaking 46 (c) ; A. W. 69 Persons accused of an offense under Articles of War 46-57, 420; p. 340; A.W. 69 Procedure where officer improperly held in 54 Release from, does not prevent trial 77; A. W. 70 ise from, of officer, when required 54; A. W. 70 Status of noncommissioned officer in 53 Beer in 49 When arrest of officer authorized 46 (a); A. W. 69 When arrest of soldier authorized 46 (6); A. W. 69 When authorized 46; A. W. 69 Who may order -17 Arson: Defined p. 254 Offense of 35, 4 1:5: p. 346; A. W. 93 Punishment for 443; A.W 93 Statutes of Limitations as to L49 Arii< lee of War: I ertain articles to be read to enlisted men 282; A. W. 1 10 I arm and pine, .lure where several specifications under one article 72 Form of charges and specifications for violation of the following articles: 54th to 69th and 71st to 9Gth pp.335 352A Interpretation of A. W. 29 as prescribing rule of evidence 7 I ins i. how charged 7 1 (p) Persons subject to 4 Persons subject to naval jurisdiction not usually subject to 1 (d) n 420 Bdby thi niraber, ■ •■ •■ War Continued. Par. W. 5 and 6 rtial Wl P ' ,!l ii. -i 416; pp.211-212; A..W. 65 Lor officer, how punished 41,415; A ment, etc W. 96 Wit! 443; p. 266; A. W. 93 With intent to commit manslaughter With intent to commit murder With intent to commit rape p. 270 With intent to commit sodomy With intent to do bodily harm J 43; p. 272; A. W. 93 With intent to roh P- 27 ° I and battery 5; A. W. 96 ment of pay, courts-martial can not order 325 lit judge adv ite. Administration of < ■ W. 114 of lo: of W. 11G public in foreign places where \.rmy is Berving. k. v |nr,: ; ( Whenandhi I Ii: ' ; ' *•• W. 11 rt •'• |M • - - - 159; A. W. 22 Warrant of , form P :1>: Win, .procedure »rpus issuing out of State court. 478(a) mp1 : I p- 213 To create mutiny 417; A. W. 66 dition 417; A. W. 66 '" W. 58 Attend luctis being investigated by court of inquiry.... 462 Attei Bow procured if civilian 164; pp. 384 385 procured if military "'■' Attorn' Authentication of n ( )t .curt of inquiry ' ;•* neral courts-martial, by whom made 354 Autrefois acquit, < rapport plea of d imed ^( n ): A - w - l INDEX. 421 and Articles of War a W. 1 ' preceding the number.] ; ■ ed p. 284 Included in term '•company" 1 (n); A. \V. 1 Beginning mutiny or sedition, denned | idence rule 237 In proof of former acquittal or conviction 274 1 n proof of pardon 273 as affecting compel libility of witness 213 -jl to appear or testify, punishment for 170; A. "W. 23 -. civilian witness, procedure to obtain ! 66 Books of account: Admissibility as evidence, rule as to 244 Foundation necessary for introduction of 244 Branding, prohibition of, as punishment : A . W. 41 h of arresl 420: p. 218; A. W. 69 Breaking, defined p. 256 . wrongful taking of money, etc., on muster 281, 407 ; pp. 197, 337; A. W. 56 Brief: Form of, to be filed with return to writ of habea p. 393 ( >f record of general and special court-martial 3 Brigade commander, powers and responsibilities of 29 Burden oi pi Iso E\ idence. -;ies - 288 ! irosecution War Department, evidence # Burglary: Delined ]'■ 255 iseof 143; A. W. 93 443; p. 346; A. W. 93 te of limitations, as to 149 Cadets: uiation of sentence, when required 378; A. W. 48 martial ' 41 n Not triable by summary court 43; A. W. 14 ar military low 4, 13, 38; A. W. 2 Calif' n nia, fees and mileage of civilian witnesses in 185 (c) subject to military law 4, 9-10, 13, 3S, 74 fj");A.W. 2 . trial in either military or civil courts of, is bar to trial in other for 149 (3d); p. G9 • ;i| dti A. (used must be confronted with wit lialfor 165; A. W. 25 Dep ritions, introduction of by defense, in trial for 264; \ . W. 25 Dep< aitions may not be introduced by prosecution in trial for 263; A. W. 25 !;. cords of courts of inquiry admissible for defense only,in trial for. 272; A.W. 27 I rider Arfei lea of War, enumerated Captured property, dealing in 430; A. W. 80 Capturrd public property: To bee ice 4 -->- A - Vv • 7 '' Wrongful appropriation of ^- !l ; A. W. i 9 4 2 2 INDEX. Casting away ammunition 425; p. 228; 425; v- 228 ; -'■• w. 75 i oga mutiny, defined i . defense.. 270 Challi »f tie vote 90 Of judge advocate not permissible 102 Of members of court-martial by accused L20 L31.137; A. T Of members i f courl of inquiry • joint charges preferred ,; '> Challenge to duel: Defined I'- ~^ Qowredgeof p. 248 hment for taking part in or promoting 441; p. 345; A. \V. 91 Chaplains, n 1 usually detailed as member of court-martial G Charai I ■ f discharge as proof of good charai fcer i How affected by the rule as to motive Received by summary court 351 (e) . ire, to prove good character 271 When of value 205 I rges: Additional charges; Pleading. nutation of I " ) onal ■ ";; isheet,formof P- ■'"' lidation of charges distinguished from additional charges 73 Ldation of, for Berious and min advisable 67 LdatioB of, when advisable 67 i 73 indorsement I'm warding ^ < (> <\ py to be furnished accused 54,77,79,80; A. VY. 70 i upon accused within eight days 77; A. W. 70 i ns and amendments of, by judge advocate 97 Defined 61 Different aspects of same act or omission charged as two or more offences, how punishmenl imposed --■ 66 Disposition of -..pics of ,:i Duplicate d of, for same act, to be avoided 66 Duties of judge advocate as to drawing and correcting ■■ o , statementof, when. to accompany 7 ' >: P- 333 7,/ ; A,,r :;':' 1 ".;! rticlee of War P- 33 ° ■■■'- md by whom forwarded to superior authority 75, 76; p. 333, 334 l _ ii . bated ''' W submitted ""» a of and action upon 7(l ' " ; P- A - A Of drunkenness, findingsunder _ " ( " Memb d signing, when accuser L30; V.w.8,9 ,. Laid undera specii c article of war, whenever posaib e --• 74 (e) pared in triplicate 75 S P- 333 INDEX. 423 [■References are to paragraphs, except where pages are indicated by the letter " P" preceding the Dumber, and Articles of War are indicated bj the letters " A. w." preceding the number.i Charges— Continued. r ; . r . Numbering of 72 Pleading came of accused in 74 (h-i) Procedure for submitting. 75 Procedure on arrest of ofheer without preferring 50 Procedure when, made by civilian < an 62 Receipt of and inspection by judge advocate -p 353 Relation of specifications to 61, 74 (6) Sen ice of, upon accused 80 Signature of i ifficer preferring, to be copied into record 64 Sub mission of 75 Sul anission of, form for p .333 To be accompanied by evidence of prior convictions within one year past p. 333 Trial upon consolidated 67 Upon confession, when to be made 70 When accumulation of, advisable 65 When original and additional should be consolidated 73 When required to be served five days before trial 80 \\ hen to be accompanied by statement of evidence p. 333 Who may initiate 62 Who may prefer 63 Charge sheet , to be used in preparation of charges 75; p. 333 Child . when competent as witness 210 Circumstantial evidence: <> Evidence: Defined 202, 203 Civil authorities: Vrrest of deserters, delivery into custody of military authorities. . 58-59; A. W. 106 Authority to arrest deserters 58; A. \V. 106 eration with, by military authorities 35 Delivery of accused persons to 35. 424 ; A . \Y. 74 Delivery of persons subject to military law to 35 Effecl 1 if delivery of military offender to 35 Civil courts: ( !oncurrent jurisdiction with military courts 35 Former testimony in, proof of 275 Forumr trial in. when bar to second trial 274 Plea of former trial in, evidence of 149(3), 274; A. W. 40 Powers of, over judgments of courts-martial ;;.; When accorded priority of jurisdiction 35 ( Jivilian witnesses. See Witnesses. Chili I n ( lovernment employ, as witnesses I - 1 May initiate charges t\l \..t in ( lovernment employ, as witnesses Witnesses, aliidavit as to correctness of voucher L87 W'ii ih sscs. contents of vouchers for payment of 187 Witnesses form of subpoena summoning Witnesses in several dials on Bame day 188 Wiiti. - ahfrs 190 Witnesses, payment for return journey 186 424 in] i g the number.] Witn< Win;. delivered to ISO I mil Eicei or otto ; am (1 for acl done 184; A. W. 1 17 I M 1: p. 277; ' in< onnecl ion with 444; p. 276; A. W. 94 a with 44 !: p. 277; .' l ' pplication for i ! martial or meml 1220 Dutj dkeep prisoners and toreporl thereon 55; A. \Y. 7 1, 72 or keep prisoners 421; A. W. 71 ire i" i mi i inn sentence of dismissal In time of war. . . pp.41] 111 i and proced ate death sentence in i une of war pp.41] 111 Return to .mm of habeas i orpus issued in Philippine Islands 480 Commanding offi 26,448; pp. 216 Disciplinary power of 333-386; A. \V. mi Disn i -l II: 1>. 339; A. W. 63 Di i rati, ii ol power t') appoint general court-martial 18 index. 425 [References are to paragraphs, except where | | he Letter "P" preceding the number, and Articles of War are indicated by the letters ' A. W." , i Commandii mtinued. Par- Duties of , where general com is, or is likely low a quorum 7 (a) Duty to make recommendations to appointing authoj '1 courts-martial Duty with respect to appointment of members of genera] < m .7 (a) Eligibility for appointm mmary court-martial Eligibility for membership in special court-martial 24 c to place officers in an isl 47 Reparation for damage, duty to provide for 4:;'.); p. 246; A. W. 89, 105 Report of, upon arrest of officer without charges 50 Sale of victuals or other necessaries, not to be personally interested in p. 314; A. W. 87 Commitment of prisoner to provost marshal or commander of guard, procedure W. 7 1 . Common law. rules of evidence, how far applicable to courts-martial 198,199 utation of sentences 384 Company, defined 4 n- A. W. 1 Conn Extra for clerical duties, when forbidden 118 porter of court-martial 113 < 'oujj.laint of wrongs to officer or soldier by commanding officer, procedure for. . . 485 alment, defined p. 197 Concurrent jurisdiction. See Jurisdiction. Condonation: ( k>nsl motive, defined 151 Constructive, plea of in bar of trial 1 51 Conduct: Discrediting the military service 446 ; \ . W. 96 Insubordinate, toward noncommissioned officer 416 Prejudicial to good order, .-to 35,71,74 (e), 90. 17:;. 2:;: > In, 415, 423, 446, 160; p i; A. \V. 96 Unbecoming an officer and gentleman 4o a . 71 308- PP- - Conf< ace. Privileged communicatio Confinement: 46-67,77, 120-422; 0. 340-341; A. W. 69-73 At hard labor iceof i beginning sentence of 401 Defined. p. 218 p of, by whom lience of order into, by one engaged in quarrel, fray, or di order.. 119; p. 217; A. W. 68 of failure to arrest or confine upon jurisdiction .4* courl 46 n • from p o|g Bard labor without In disciplinary barracks, of gei 397 In disciplinary barracks of ] enced to di 1 and to confinement oot in a ] 398 In penitentiary, when authorized In post, when directed 426 INDEX. bted by tlie letter "P" preceding ttonamber, itedbj the letters "A. W." preceding the number.] i nued. v -'- r - Limit of < of , without trial 77; A. W. 70 i 382 lian charged with offense 120; A. W. 69 130 46 (a), 420; A. W. 69 < )f pen on Bubjecl to military law, when authorized 46 (c); A. W. <;;> Of soldier charged with off ense , 120; A. W. 69 iier, when and how authorized 52 16 c); A. W. <;:» Place of , change in 389 l'i:i< f, designation of 394 m 332 (a) To limits "i post or reservation 319 • onfinement of < >f li<<-r authorized 46 (a); A. W. 69 When confinement of soldier authorized •!<; (6); A. W. 69 Without hard labor, .should not be imposed 31 1 n Confirm; by approving authority, effect of 378 ■ of death itence of dismissal of officer Oft wer to confirm that part of finding of guilty of a particular lvi Lves Sndingof guilty of lesser included offense.. ::77 (a), 379 (a) . power to confirm the whole or any part thereof — 377 (6), 379 (6) is required, powers incident to. 377-379, 3S6, 388; A. W. 48, 49 tful words concerning 113; p. 339; A. \Y. 62 Conspiracy: fraud United States through false claims -Ml: p. 275; A. W.94 To desert, triable on joint charges (i!) oaents of accomplices and, when admissible 224 LCtive breaking, d< 'lined p. 256 < tractive condonation. (See Condonation. pardon; evidence to support plea of , in bar of trial 273 Jar officers of United States, powers of, when granted to Army officers.. I A. W. 1 11 ('• atempl : irity of con its of inquiry to punish for 460 Authority of courts-martial to punish 173 (a) active, defined 173 (c) . 1 of witness to answer 235 : , punishment for 17:'.; A. W. 32 lefoT J 7:i yii) for punishment for L73 I) Toward Federal or State officials by officera or soldiers 413; A. W. <;2 rds: Defined 413; p. 206 Relating to Federal officers, punishment 413; p. 339; A. W. 62 i . . S& this tiil<- Courts-martials. : ■ rsonal interest of officer in, forbidden 40 n, 137; A. W. 87 I • 'i. 8 ■ K\ idence; Trial; Witnt authority: 8a Appointing authority. Sec <• ' general, special, summary. INDEX. 427 (References are to paragraph*, except where p ag M MC indic-i'ed by the utter " 1"' preceding the number, and Articles of War are indicated by the letters "A. W." preceding the number.] •'ar. Convening order of court of inquiry 455 Conviction: ■Former, for same offense, how proved 274 Of accused, vote necessary and how taken 90, 295; A. \V. 31, 43 Of lesser included offense by courts-martial 298, 299, of court-m irtia] to convict where accused deserts during trial 36 Sentence upon, by Bummary court 35 1 i ; I When authorized by the evidence 296 Convictions of soldier for prior offenses, when evidence to accompany charges. . 75 (b) Conviction of crime: See also Evidence; Witnesses. Effect upon competency of witness 211 Copies: Certified, authenticated or official, as evidence. See Evidence. Of records, writings, etc. See Evidence, documentary. Corpus delicti: Defined 225 (a) Proof of, required 225 Correction of record of court-martial (general or special | 3G4 Corroborative evidence defined 248 Counsel : Duties of counsel for defense 109 Examination of depositions before trial 2G6 For accused, court of inquiry 463 For accused, how selected 108 For accused, summary court-martial 351 (c) For accuser, court of inquiry 463 For defense, right to interview accused and witnesses 1 i Who is eligible for appointment as counsel for accused 1 08 Countersign: Defined p. 229 Disclosure of 41,427; p. 3-12; A. W. 77 Improper use of 41, 127 ; A . W. 77 Courts-martial — First examine titles lender the general hea "ts-martial, u tl,,n ■ ' '■ heading of the particular court, viz: "Courts- martial (g ial)";"Couri immary)": nee of appointing authority, who may act 369 Absence of member during part of trial, effect of 93 .ce of member, to be noted on record 85 Accuser, eligibility to sit as member of court 6,17,64, 129, L30; A. \V. 8,9,10 Action by re , tewing authority on proceedings of ActsperlormaMe by court whose members are below statutory minimum. ! Addi; ion of new member during trial, effect of 93 Appointing authority 14, 19,21,23,25; A. W. baring authority, accuser or prosecutor, how determined 17,22 Appointment of officer as judge advocate P- 353 Approval of sentences, execution, confirmation, etc 369, 404; pp. 371 373; A. W. 46 53 Arraignment, challenge, right of, on each arraignment 143 Arraignment , convening order to be read anew for each case 143 Arraignment, procedure on 144 A rraignment, proceedings must be complete in each case — 143 ; the number.] i-niartial Co nmcnt, when made ' ,;? 120-131, 137; A. W. 18 ]-'); \. \'. Challi ' Chall< < hallenge, groundsof, foi lalbi rounds for principal '- 1 (°) Challenge joinl charges, righl Challenge, judge advi Lberality reqi ing upon 128 Chall< uge, member as accuser - 129 V,'. 8, 9 I lalined but not challenged --'J r may n< ■ ; r L3I Challenge, new member subject to initymust besivenou each arraignment 143 Challenge, oath to tesl competency of member upon L37 Challenge, procedure on failure of accused t rightof 120 procedure upon LD ' L01 J -° . making •• • - '-[ a1 "i' L27 i permitted 93 I form of P- 3 ^3 • • Charges. 5 i doors, sitting with "- '- 1 ' ■ • as to 101 : A. w . 30 ■ edings ; 6~12 Concurrenl jurisdiction ourts. :;; ' aembers during trial sr ' n ice 271 '•' Continuances, application for to whom made 1:; '' Continuances, application, musl state reasons for ' !() Continuances, authority for granting 139; A. W. 20 Continuances, grant of, to ty 1::!) I united ' '• I of judge advocati !•.< 1°° Control of nature i 47 (c) ra ed Lonol record :;: '-- ■I, analysis ol e\ Ldence by ,: "' i ninai ion of Bources of e\ Ldence by 196 el, opening statemenl l>y 197 429 [Reterei unber, and Articles oi War are indicated by the letters "A thennml>er.) iontinued. Par. Court of inquiry record, admission as evidi n - 2 an to be based solely upon e~\ i 'iiri L94 Decorum to be observed during sessions s, i i iii jurisdiction rendering judgment void s Depositions. Determination of proper trial court 78 Discretion of appointing authority as to number of members within au- thorized limits 7 Discretion of court as to leading questions 254 Disposition of record of trial, by appointing authority eition of record of trial, by trial judge advocate 366 Dut Les of, as to sel f-crimination by witness Duties of members ■ of president 89,97, I 19 (3ft), L54 (rf), 215, 234 Duties accused is found insane 219 - of. where insanity of accused becomes an issue 219 Effect on jurisdiction of desertion or absconding of accused 36 i jurisdiction of reduction of number i T iry limit 7 Evi< Evidence. Examination of witnesses by members of court • pproval of pp. 371 373; A. V* Expenses of. how payable Extra pay for clerical duties for. when forbidden 118 Eacilities for holding, to be procured by judge advocate 95 I ;1 judicial system does not include 33 E< -r service of subpoenas 19l Eindings of i in 'i ral principles Finality of judgments an 33 in, and in civil coi i of order appointing court-martial, general or special 12 {a ) Functions of 3 (b) Hew members are seated Intel | oyment and pay 119; A.. W. 115 136; A. W. 19 Judgi of. See Judge advocate. Judgmenl of, void for defect ixi jurisdiction 34 Judicial notice taken by 289 Jurisdiction Jurisdiction, criminal only :'.:; liction, defect in, renders judgment void :'. 1 Jurisdiction, effect of desertion or absconding of accused 36 Jurisdiction, how divested Jurisdiction, uot territorial .".7 Jurisdiction, special and limited 32 Jurisdiction, when exclusive and when concurrent with civil courts :!•"> Jurisdiction, v. hen terminated 38 Kinds of 3 (6), 5 Leading questions, discretion of court as to 254 Liability to service as member of 81 430 INDEX. e letter " P" preceding the number, ; the number.] • - martial Continued. Par. Limits of punishment 40,42, 14,309 349; pp. 369 370,375 377; \.W. IS Members accusers, when 129, L30; A. W. 8,9 Members, affirmatiorj administered anew in each case Members, affirmation or oath, form of L32 (a-6); A. W. 10 Members, as witnesses 13] Members challenged, withdrawal of, during procedure t<> determine com- acy '- ' Mi mbers, decorum during administration of oaths t<> 86, 132 (e) Members disqualified but not challenged 12G Members, duties of 81 Membi re, expecting to be absent, should ootify judge advocate M. mbers aew.subjed to challenge 122 Members, oath, additional ceremony to bind conscienceof 132 (d) Members, oath administered anew for each cane 132 (c); A. W. 10 ■re, oath oraffinnation, form of - 132 (a o); A. W. 10 Members, oath to tesl competency of 137 Members righl to challenge a '-' Meml barges, when accuser 130; A. W. 8, 9 Members, sworn anew on arraignmenl of cadi case. 143 rotingby 90,294,308; A. W. 31 Members, witnesses for defense 131 (b) Members, witnesses for prosecution L29, L31 (a); A. \Y. s. 9 Members witnesses, when accused pleads guilty 131 (d) Members witnesses, when called by court 133 (c) Method of voting by members 90,294; A. W. 31 ■:-. nolle prosequi, grounds for and effect of entering 158 Motions, to elect . act charged under two or more forms 157 one of two or more joint accused 156 ial Guard nol in Federal Bervice, system for pp. 331-332 Opening of proceedings 83, 84 Order convening court, duties of judge advocate as to correction of 97 < hrders, form of PP- 375-377 Ord( re, information contained in 400 Organization of, when completed 142, L43 Pardon and mitigation, power of 380 385,390, 102 403; A. W. 50 is competent to Berve as members G, 8-11 8i i former trial, evidence of -''' . ■ tion upon special, procedure, etc 153 Pleas, burden of proof, etc., as to special 153 (a) constructive condonation 151 Pleas, constructive pardon no bar of trial, evidence ol 273 Pleas, desertion, statute of limitations 149 (2) double jeopardy ' l! ' t -' ,) Pleas, former punishment by commanding officer 152 (a) Pleat former trial by civil courts, evidence of -. 274 former trial b} courts-martial, e\ idence of 274 Pleas, former trial in courts of Alasl.a, ('anal Zone, Hawaii. Philippines, to Rico 149 (3d) Pl< . former trial, when a defense 149 (3) INDEX. 431 [■Referents are (o paragraphs, except where pages are indicated by the letter " P " preceding the number, -ides of War are indicate! by the letters "A. \\ ." preceding tho number. 1 Courts-martial Continued. Par. Pleas, former trial, wh< a no defense where same act constitutes two of- fenses 1-19 (3d) Pleas, former trial, when not sustained L49 (3c) Pleas, frauds against the Government, statutes of limitations as to 149 (2) Pleas, fraudulent enlistment, second trial for as to misrepresentation dis- covery subsequent to first 149 (3/); A. W. 54 Pleas, general issue 1 45, 1 54 Pleas, general issue, change of plea under 154 (6) Pleas, general issue, substitution of special plea for 154 (b) Pleas, general issue, usual form of plea 154 (a) Pleas, how stated 153 (a) Pleas, illegal enlistment 152 (b) Pleas, in abatement 147 Pleas, inadmissible special pleas 1 52 Pleas, in bar of trial 148-151 Pleas, insanity provable under general issue 154 (g), 219 Pleas, kinds of pleas 145 Pleas, lack of jurisdiction 146 (c-d) Pleas, limitations as to time 149 (2) Pleas, manslaughter, etc., statutes of limitations as to 149 (2) Pleas of guilty, accused to be advised as to maximum punishment for of- fense 154 (d) Pleas of guilty, accused to be advised of elements constituting offense 154 (d) Pleas of guilty, followed by statement of accused inconsistent with 154 (e) Pleas of guilty not to exclude taking of evidence 154 (c) Pleas of guilty, record must show explanation by president of elements of offense and maximum punishment and reply of accused thereto. . . . 154 (d) Pleas of guilty without criminality, irregular 154 (/) Pleas, overruled special, accused must plead general issue 153 (d) Pleas, pardon in bar of trial, evidence of 273 Pleas, pardon, scope of 150 Pleas, president to advise accused in certain cases of legal rights to plead statutes of limitations 149 (SA); A . W. 39 Pleas, release from arrest 152 (c) Pleas, restoration to duty before trial 152 (c) Pleas, several pleas to each charge or specification allowable 153 (a) Pleas, special, and general issue L45 Pleas, special, burden of proof 153 (a) Pleas, special, how stated 153 («) Pleas, special, sustained as to jurisdiction or in bar, action of reviewing authority on 153 (6) Pleas, special, sustained as to jurisdiction or in bar, record of Pleas, statute of limitations 149; A. \Y. 39,40 Pleas, statute of limitations must be pleaded, etc., to deprive court of jurisdiction of offense 149 (Bg), (3); A. W. 39 Pleas, sustained as to some of the charges, trial on the others 153 (c) Pleas, to the jurisdiction, grounds for, and effect of 146 Pleas, unauthorized, or ineligible members on court 146 • b I Power of accused to demand trial by 333, 334, 336; A. V. . L0 I Power of appointing authority over 20 Power of convening authority to add new members to court whose numbers are below statutory limit 7 53915°— 18 30 [Rof.v- nawptwharapa . -mbor, I \V:ir:ir<- Indicated by Uio l.-:tor^ " A. W." prt iber.) Court otinued. p ar . ivening authority 20 . as i" npA"»"g and i Losing 89 in favor of Government or individual 325 75 of jurisdiction ;; | President of, duties of 89,97, 1 19 215,234 ■ ml of, dutj to advise accused of his rights L49(3A),15 uunine indorsement referred for trial 97 ■ •Hi of United States maj prea ribe procedure for 198; A V. . 38 Dnvictions, procedure as to 306 ii- convictions, what constitutes 307 i- (ions .'. . . 306 Procedure during trial. 8a this title, Arraignment; Moti Re- I i" plead. Lure of , may be prescribed by President of United Stati L< • LW. 38 Lure of, upon revision Lure of, with reference to judicial notice 2S9 Procedure upon addition of member of court during trial 93 Procedure where special plea sustained as to some charges only L53 c) of, void for defects in jurisdiction Rank of appointing authority !!i, 23 Record, authentication of 354, 358; A. W. 33, 3 I I. by whom prepared 95, 107, ! Record, correction of error or omission in 364 rd, disposition of 366, 367; A. V □ of, by appointing authority 367 Record, disposition of , by trial judgi . 366 R< crd, explanations to accused to appear in 149 (3 rd, loss of, what action to be taken 368 Record must be complete for each case, wit bout reference toanyot her disc. 143 Record, separate, for each case 356, 358 Record, to be prepared by judge advocate 95 ismitted to appointing authority 366 I. to contain charges and signatures thereto 64 i! to plead, action to be taken L55 Reporter, oath, form of 135 a); A. W. L9 Right of, to proceed with trial of accused who absconds or deserts 36 Rule for determining whether accused should be tried by general, Bpecial, or Bummary court-martial 78 idence. Sei E\ idence. era 83 tnenl of service of accused, when considered 271 Tim' : SI I iiii'onn of mend . , and accused 82 Voting by members of 9< L W. 31 When appointed by superior authority 14,21 When closed -• ions required 9i When dissolution mould be ordered 7 When to report as to weighl given certain e\ idence Witn Witnesses. Who may be tried by 13; A. W. 2, 12 INl'KX. 433 [References are to paragraphs, except whoro , number, and Articles ai War are indicated by < he lei teie "A. w." preceding * i i*^ im Couxta-martial (general) — First examine titles under tfu general heading, "t ourts- martial," ■■' titles under the heading of the pan "Courts-martial [general)"; " Courts-martial (specuil)"; "Courts-martial sum- mary)": Par. Appointing authorities enumerated 14, 16; A. W. 8 Appointing authority of President of I'nited States 15 Appointing authority, rank of I'.t Appointing authority's power over 20 Appointing power is attribute of command 18 Appointment, ollicers eligible for 6, 9, 11, 129-131 ; A. W. 8 Assistant*] udge advocate, appointment, powers.. 30, 31, 94, 100, 107; A. W. 11. L16 Authentication of record : 154 By whom appointed 14-20; . ( lharges, service of, upon accused 80; A. \V. 70 Composition 6, 7 (a), 9-12: A. W. 4. 5, 8 Confinement in disciplinary barrack.-, when proper Confinement in penitentiary, when lawful 337-339, 34 1, 396; A . \\ 12 Contents of record of Death sentence by 16 Dismissal of officers, confirmation, suspension, etc 15, 378, 3S2, 391, 392; A. W. 48, 51, 118 Duration of power of commanding officer to appoint 18 Form for appointing p. 332 (a) Form for order of p. 375 Form of record of trial of pp. 357-304 Form of revision of. record of pp. 363, 364 ral officers, sentences respecting 378; A. W. 43 Jurisdiction, powers 3,4,13,32-10,78,173,320; A. W. 12 Limits of punishment by 40 Number of officers required for 7 (a) ; A. W. 5 [lenses punishable by 39 Penitentiary sentence, record must show authority for qs triable by 39 Preparal ion for trial, time allowed accused 80; A. W. 70 Punishment which may be imposed by : 40 Record, contents of Record, copy to be delivered to accused rd, form and contents of 357; pp. 3 . authority for penitential 339 ings, form of record of pp. What offenses should be tried by 78 Court-martial (special) — First examine titles martial" then examine till- s una\ rthe heading of the particular court, viz: martial ( App luting authority, rank of 22 Appointing authority where subordinate disqualified 22 Appointment, officers eligible for 6,9-11,24, 129 L31; A. W. 9 Brief of ri cord of • Binding of record of By whom appointed 21 -23 ; A . W . 9 434 ix!»kx. : the number, : War are indicated by tbelettera "A. \v." preceding the aumber.] i -martial Continued. Par. a of 6, 7 (6), 9 L2; A.. W. 4,6,9 Contente of record "f Form ;ui■ 376 II.. w appointed by superior authority because of disqualification < )" sub- ordinate authority 22 Jurisdiction, powers 3,4,32 38, H,42,78, L73,320; A. \V. 1:1 Limits of punish men I by 42 Number of copies ■•!" record of Number of officers required for 7 (6); A. W. 6 (M'fi n--. ■•■ punishable bj 41 Persons triable by 41 dure of 350 Procedure of , on revision 352 Punishments imposable by 42 Record, form and substance of 358; pp. 365-366 Rei <>rd, not to be indexed 360 Record, number of copies of 359 Record, requirements for 358 R cord, to be bound 362 Record, to be briefed 361 Whal offenses should be tried by 78 When commanding officer eligible for membership 24 Courts-martial (summary) — First > xammt titles undertiu <:• neral heading, "Courts' martial" tin n examiru Hth s und\ rtiu h ading of tin particular court, viz: "Courts- martial {general)"; "Courts-martial (specia s-martiai (summary)": Acquittal, record of 351 (0 Appointing authorities enumerated 25; A. W. 4,7,10 Appointment, officers eligible for 6,9,11 26,27; A. W. L0 Attendance of witnesses 351 (c) Challenge of court '- Composition 6,7,9 12,26 27; A. W. 4,7,10 Composition of, where but one officer presenl 27 Composition of, where more than one officer presenl 26 Conviction, record of 351 (A) Effects of deceased persons, how disposed of 482; A. \V. 1 12 K\ Ldence of good character, etc 351 (e) I pre\ ious con\ Lctions : ] {g) Findings of 351 (/) Form and substance of record of 363; p 36* Inquests by 483; p. 409; A. W. L13 Jurisdiction of 3, 1,32 38, 13 44,78, L73,482,483; p. 409; A. \\ I I Limits of punishment by 44 Number >>f officers required — ». 7 (c) Offenses triable by .' - ,: ' ibleby 43(7); A. \Y. II Pi cedure for appointment where bul one officer presenl 27 dure of 351 Procedure on r< vision 353 lice. >r.l .if, correel ion of error m omission in 365 Record of, form and substance of 36:$; p. 367; A. V* . 34 INDEX. 435 [References are to paragraphs, except whe-o p the letter «• P" pri rnber, a id Articles of War are indicated by thelettera"A. \V." preceding the numlip'-.] Courts-martial— Continued. II ■! ■■ m i ■:' '• 365 Sentence, record of ns of 351 i a ) Sunday sessions, when permissible 351 (a) Time; of holding sessions 351 (a) To hold inquests to investigate the cause of sudden, violent, and unnatural deaths 483 Transmission of record to appointing authority When accuser or witness for prosecution may ac1 as G When commanding officer is eligible for appointment as summary court 27 Courts of inquiry : ce of recorder Accuser, counsel for. 463 Admission of depositions in 468 Analogies of a court-martial govern, whom applicable 461 Appointtnenl of reporter and interpreter 457 Assignment of retired oGicers upon 453 Attendance of party whose conducl is being invest Lgated 462 Authentication of proceedings 272,473 475; A. W. L03 Authority to punish for contempt 460 Challenge of members of court of inquiry 46 1 Composition of ■ ;A.W. 98 Conclusions of fact of 469 ( !ontemp1 . power to punish for 460 Counsel for accused, selection of 463 Convening order 455 ( Convening power, how limited ( ration and functions of 3l c\ 447-52 ; p. 287; A. W. 97 Depositions in 468 Discretion as to ordering court 449 I dsposition of record -174 Examination of witnesses Findings of 469 Functions of '.. 3 (c), 447, 150 52 : A . W. 97 In general 272. 117 475; pp. 287 292; A. W. 97-103 Interpreter, appointment of Jurisdiction of ! governing - '' ; ' Limitation upon power to convene 1 ' s Members of New member to hear testimony read Oath of interpreter 466 Oath of recorder Oath of reporter Oath of witnesses Oaths of members 466; A. W. LOO Opinion; when furnished " ; '': A. W. L02 Persons subjecL to ' , '" Powers of 458 472 ; A . W. 101 t to Bummon and examine witnesses 458 President, power to adminster oath and acl 436 i- Xi i n dica t ed bj the letter' P"pre ediog the number . . ; inquiry — Continued. Procedure of 458-472; A W. L01 ire where new member added I ;r.- with reduced Dumber of members 465 Publication of proceedings of 472 Rank of members 458 I as . vidence, when admissible 272, 17.">: A. W. 27 I of ; I of, admissible for defense in capital cases 272; A. W. 27 »rd of, admissible tor defense in cases extending to dismissal officers 272;A.W.27 ."ii J 74 I of, how authenticated 473 rder entitled to have soldiers detailed as clerks or orderlies 105 , r Eor each courl 454 ler power to administer oaths and act as-notary 138(6); A. \V. 114 Reduced Dumber of members by casualty or challenge 465 Refusal of witnesses to appear <>r testify 170,459 Reporter appointment of ! -' 7 Reporter, detail of enlisted man as 457 on of investigation 471 Secrecy as to votes and opinions of members 170 as a COUrt 4G1 Statute of limitations not applicable ! Subjecl matter triable by ,; '' J Testimony taken before addition of new member 465 v whom ordered 117; A. W. 97 Witnesses, power to summon and examine 458-460, 4G7, 468; A. W. 101 Witness, refusal to appear or testify, punishment for 170,459; A. W. 23 < rdice: Dismissal for, publication 347; \ aavior before enemy in time of war 41,347,425; p. 341- 342; A. \V. 75 imentfor :; ' 7 Credibility: See also Wit Defined 256 Of aci impeachable 205 may be attacked irrespective of rank 200 Particular offenses by Dame. liction of eivil and military courts : ' ,;> ipital -1 ■»« ; A. W. 96 Presumption of in tent Ln connection with '- Criminal prosecution, removal of, when instituted againsl officer or other member of military service ,M lamination, s,, Trial. Cuba, fees and mileage, civilian witnesses in 185(a) m. punishments prohibited by military property 281, 133; p. 344; A. \\ . 83 weapon denned p. 284 a, investigation of, bj ummary court 4S3; p. 400; A. \\ .113 IN] [Rofereooea are- to paragraphs, except . mid Articles of ^'ar are Indicated by the Letters "A. w." pre edlngthenu ice: Par. Commuted to imprisonment . execution of, in penitentiary 338 m of, when required 378; A. W. IS Execution of, by commanding general in time of war in certain cases 378 (VZ); pp. 411-4] 1; A. Suspension of 391 ; pp. 411-4L4; A. W. •">! Vote upon 308 When authorized 191 ; pp. 411-414; A. W. 43 Debts, failure of officer or soldier to pay. when basis f< >r ehanros under A . W. 95, 96. . 71 Deceased persons, disposition of effects of 4S2; A. \V. 1 12 Declaraii-iiis against interest as evidence 226 Decorum to be observed at court-martial trials 86, 132 (e) 1 Ignorance of fact, when available as '. . . . 283 Ignorance of law, when available as 282 Members of court-martial as witnesses for 131 (6) Definitions: Abandon p. 226 Abuse p. 2 ! I Accuser 17,22 Additional charges 73 Appointing authority 369 46 in; p. 218; A. W. 69 Arson p. 254 Assault p. 266 1 1 with a dangerou - 11 with intent to commit a felony p. 266 Assault with intent to commit manslaughter p. 269 It with intent to commit rape p. 270 1 1 with intent to commit sodomy p. 27 1 Assault with intent to do bodily harm p. 272 Assault with intent to murder p. 268 tit with intent, to rob 270 Articles of War. for purposes of 4.8: A. W. 1 At or near : 7 1 g) Attempt p. 213 • a mutiny or sedition p. 213; A. W. 66 Att. mp1 to desert p. 202; A. W. 58 :er p. 211; A. W. 65 Attempt to slrike superior officer p. 209; A. W, 64 ! n; A. W. 1 • pp.2 Be inni 5 a mutiny p. 214 p. 2:.<; try p. 255 1 11 tiny ]>. 21 1 a duel p. 248 ill 61 ostantial evidence 202, 203 '.I I < lothing p. 239 i n i • i : \ . m!>cr, thenumborj T:ir. - : >7 ( lomm ird pp. 219, 220 Comma u •■ cer pp.216,: ( lommanding officer for th<' time being 374 quiry lis (Commanding officer, with reference to Bummary courts-martiaJ l'<; iany 4n; A. \V. 1 ilmenl p. 197 ind gentleman p.280 aemenl p. 218 Constructive breaking p. 256 fuctive condonation 151 ■ contempl 173 (r) mpl • iptuoue words p. 206 • < i< li< t i 225 (a) orative oviilence 248 Countersign p. 229 Credibility 256 Dangerous weapon : p. 284 p. 216 Depredation p 846 rtion 284(a); pp. 201, 202; A. W. 28, 29, 58 l>. iched battalion 28 i ►eteclxed unit 28 Detachmenl 28 Direcl contempl 173 (r) Direct evidence 202 evered Disobedience p. 209 lei p. 216 Disrespectful behavior p. 207 pectful words p. 206 Drunk 74 (p), p. 240 Di -'.kenness p. 240 Dud p. 247 Duty P-240 Dwelling house I 1 !'- 254 -255 Bmbezzlemenl p. 264 ty pp. 226, 234 Excil ing a mutiny p. 214 Execul Ion <>f office p. 211 Expert witness 218 writing p. 284 ry 1» 284 Pound drunk <>n duty p. 240 Fraudulenl enli I nl 149 (3) (/>, p. L96 Pray P- 216 < reneral prisoner 74 (.;') n Indirect evidence 202 Interested pp. 243, 244 INDEX. 439 [References are exoeptwherep the letter "P" preceding the number, niiljer.] Definiti aued. Par. in the military Ben ice of the I 9 Joining in p. L'i 1 Joint offense 09 e Advocate 107 Judicial notice 289 Knowingly ' p. L98 Knowledge p. 248 Larceny p. 257 [.awful order p. 210 Leading question 254 Loss ■ pp. 237, 239 p. 250 Malic< aforethought p. 250 Manslaughter p. 253 Martial law as applied to Army 2 (r) Martial law at home 2 (b) Mai i rial evidence 202 Mayhem p. 254 Military Government 2 (a) Military Law 2(d) Misappropriation p. 279 Misbehavior p. 225 Misrepresentation p. 197 Mil igation of punishment 380 Murder p. 249 Muster p. 198 Mutinv p. 213 Oath p. 2«6 Officer 4n; A.W. 1 Officer commanding for the time being 374 On duty p. 241 On or about 74 (p) Pardon 150 Parole P- 230 Perjury P- 264 Presumption of fact 278 i'ri sumption of law 277 Pretense P- - (,s Previous conviction 307 Prima facie <\ idence 279 Pri * »ner PP- 219, 220, 221 Privileged communications '-"-' 7 I ■ utor 17,22 Provoking speeches and Qua rrel P- 216 Rape uabledoubl 288 Relevant evidence 202 Reproachful Bpe sches and gestures Res gestae Reviewing authority a(i ' J 440 on tod by thclottor "P" preceding tlieuumbor, m.l Irtjclea of war are fauMoated bj tha letters "A. W."pn amber.] Lonfl Continued. Par. Riot V Bobbery P-262 Routine duty 66 Saf V Scandalous and disgraceful offenses 74 Sedition - P- 213 Sentinel P [dier 4 n; A. W. I ' ' 11 !' ' P-236 ' limitations ' •" Suffering militarj property p.237 Su] PP- 207 > 208 T( timonial evidence 202,207 P- 257 Trial "» Tried 1! '' I olawful Voluntary confession 225 i V) Waste.... Weapon, dan P 284 Willful Willful disobedience P- 209 Willful injury P 239 Willful lot PP- : Degra i tending to 233 (a) Delivery: ml called lot by receipt : : p. 277; A. W. 94 il authorities 35,281,401,424; p.224; A.W.74 I to submit lo 68 rial departments. 138,165,167,174-182,263-269;] A.W.25,26 objection to when 165, 167, 174,263 269; pp.379 382; A. \\ arts of inquiry 168 Alii,!. 269 at to be responsive |s,) ;. 175; \. W.26 in evidence 2(58 rocedure to obtain, of 177 (c) ( lompetency of witne ses, objections to 265 i 1, how traced 17if, at trial 267, 268 Taken before whom 175; A. W. 26, 114 Taking in foreign country 182; A. W. 114 Tracing delayed 178 When admissible 165,167,174,263-269,275; pp. 379-382; A. R When admissible by defense 263,264; A. V,'. 25,26 When : 3ecution 268 ; A . \Y. 25, 26 Depredation, defined p. 246 Desertion 41,60, , J 19, 281, 284-286, 338, 340, 409-411;. pp ; 336j 338-339, 393-396; A. W. 28,58-60 Absence without leave, presumption from continuing 2s4 Advising, aiding, persuading, or assisting another to desert 41, 410; p.:;: Authority of citizen to arrest for 5!) ; A. W. 106 Authority of civil authorities to arrest for 56; A . \V. L08 By what courts-martial triable 78 Confinement in penitentiary for, when authorized Constructive condonation, pleaded in bar of trial 151 Conviction of, disapproval by reviewing authority 58 Defined 284 (a); pp. 201-202; A. W. 28-29, 58 Entertaining and retaining of deserter by officer 411; p. 3:;y; A. W. 60 Evidence to prove Followed by fraudulent enlistment 74 (n), 284, 409; A. \V. 29 Forfeiture of deposi ts In time of peace, punj hment for 3 10; A. W. 58 In time of]" imitations 149; A.. W. 39 In lime of war, not barred by statutes of limitations 149; 1 I In time of war, punishment for 338,340; A. W. 58 Minority of < set of 60 Of accused during trial, effect upon jurisdiction of court-martial i Offict r g and retaining deserter 411; A. W. 00 Officer quit ore resignation accepted 281, 284(a); A. W. 28 Persuading another to desert 4 10; . ited, in t inns of peace, punishmenl for ration to duty without trial is constructive i 151 Statutory rules of evidence as to enlisted men 284 (a); A. W . 29 Statutory ruJ nee as to officers 284 (a); A. i Sufficiency of proof - I Time lost to be made good 38n;A. When chargeable as a joint offense 69 •! 12 i.m . ted by the letter " P" pre c edi n g the number, ihenumber.l ■ ion of prop '' ,r - !• ni hmeni For 439; A. V. . 89 for 481; A. W. 105 . 1 28 From command; effect of, on power t'> appoinl general court-martial.. — 18 defined P- - 1,; Dental .- irgeon, oot usually detailed as member (if court-martial 6 rfeitureof 326 Detached battalion, defined 28 efined Detention of pay, punishmenl by Direcl defined 202 toy al of sentence, effect of 372 1 '»> habeas corpus, brief to be filed with return to writ norable ; upon jurisdiction of court-martial 38 (a, d, e) Of soldier, how effected 42,-14, 320, 382, 393, 403; A. W. 10b Discipline: See also Disciplinary barracks; Disciplinary punishments. Conduct prejudicial to good order and 35, 71, 74 (e), 90, 173, 23 1 . 235, 286, 294, 300, 415, 420, 423, 440, 4G0j p." 336, 349-352A; A. W. 96 Maintenance of, on march and in quarters 439, 481; p. 345; A. W. 89 lading officers 320, 333-336; A. "\\ . 104 i , means of enforcing 345 Disciplinary barracks: ( Jonfinemenl in 337-341, 396-399; A. W. 42 General prisoners ,l '' I', rspns sentenced to dishonorable discharge 396 , Unary power. See Disciplinary punishments. linary punishments 333- 336; A. \\ . 104 St • also Discipline. Appealsfrom 333,335;A.W. L04 Limitations on power to impose ■•■' ' of commanding officer to impose 333 336;A.W. L04 Power to impose, cannot be delegated '••' A:] * A. W. 104 R( col ! of, to be kept by commander 334 Discovered, defined p. 204 1 1 edit, conduct tending to bring, upon the military Bervice 446;. A. W. 96 i he service, how pleaded ' 4 ("0 Dishonorable disci Mitigation of sentence of 382 On account of previous convictions 349 (Art. VI) p. 168 Etemi don of suspended sentence of ,( '-' - S 20 ' 343 of entenceof 321, 340, 393 lension of .entenceof, with * iration to duty, status by re- mi ion thereof Disini I on jurisdiction of court-martial 38 For what offenses mandatory !<) n > A ■ ^ ■ !, ° INDEX. 443 [References are to paras*raphs, except where p ited by the letter " P" pre edim,' the number, and Articles of War are Indicated bj the letters" \. w." preceding the number.] Dismissal -Continued. Par. Of cadet, confirmation of sentence of Of officer, confirmation of sentence of :i7S (a), (b) Of officer, for cowardice or fraud, publication thereof 347 Of officer, for disrespect, toward Federal or State officials 413 Of officer, how effected 15, 38, 41, 43, 378, 391-392, A. W. IS, 51, 118 Of officer, under A. W. 95, no additional punishment allowable 312 Right of officer dismissed by President to trial by court-martial 38 (6) Disobedience: Defined p. 209 Of order into arrest and confinement of one engaged in quarrel, fray, or disorder 419; A. W. 68 Of order of noncommissioned officer, by soldier 416; pp. 339-340; A. \Y. 65 Of order of president of court-martial, how punished 89 Of order of superior officer 41, 415; p. 339; A. W. 64 Disorders: Defined p. 216 Power of officers and noncommissioned officers to quell 46, 47, 52. 419; p. 340; A. W. 68 To the prejudice of good order and military discipline. 446; pp. 349-352A; A. W. 96 Disposition: Of effects of deceased officers and soldiers 482; A. W. 112 Of military property, wrongful 433, 444 ; p. 344; A. W. 83, 84 Of record of court of inquiry 474 Of record of trial by appointing authority 367 Of record of trial, by trial judge advocate 366 Disrespectful behavior: Denned p. 207 Toward superior officer 414 ; p. 339; A..W. 63 Disrespectful words: A ga i nst Federal or State officials 4 1 3 ; p. 339 ; A.W. 62 Defi ned p. 206 Divisions: See Territorial divisions. Documentary evidence. See Evidence, documentary. Double jeopardy: where no former trial within in meaning of A. W. 40 149 (3c) Evidence to prove 274 Fraudulent enlistment, second trial for misrepresentation dicsovered sub- sequent to first 149 (3/) Limitation as to number of trials 149 (:',); A. \V. 10 Same act may constitute two offenses, one against State, one against United States 149 (3d) Same acts not subject to second trial in another court of same govern- ment ! Same offense can not be charged under another article and description for nd trial I I Trial defined as to 149 (3c) Trial in either military or civil courts in Alaska, Canal Zone, Hawaii. Phil- ippine [glands, or PortO Rico is bar to trial in other tribunal for same acts 149 (3d) 444 INDEX. ted by theletl ' P' ( preoed number, vindicated by the letters "A. W." p imber.] Draft: Par < Officers drafted are eligible for memb irrt-martial When -law t a); A.W.2 ing weapon upon officer or ncncominissioned officer. . 419; pp.217, 340; A. W. 68 j>r-ink, defined v Drunkenness: A - a defense, how considered 285 I tefined P- 24 ° Findings under charge of 304 How proved 287 Officer found drank on duty 40 n, 135; p. 344; A. W. 85 S.-nniM-l found drank on post 281,436; p. 344; A. W. 86 When a defense When a violation of A. W. 95 P- 28] When a \ iolation of A. W. 96 p. 282 Doling 378, 441; p. 345; A. W. 91 i defined P- 24 ° Officer found drunk on 435; A. W. 85 Suspension from, effect of 316 Dwelling house, defined P- 254-255 tral ions, admissibility of, as evidence 222 Eligibility, for service as member of court-martial, persons eligible 6, 9, 10, 11 Embezzlement: Commission of, by person subject to military law 35, 38 (a), 280, 285, 347,443-444; pp. 264, 278; 348,348; A. W. 03, 94 Defined P 264 Of military property 444: P- 278; 4,,,W. 94 Trial for, statute of limitations 149 Enemy: Defined pp. 226,234 Misbehavior before 41 425; pp. 341, 342; A. W. 75 Relieving, aiding, harboring, protecting, corresponding with, or giving 41, «31;p.343; A.W.81 hen a detachment for disciplinary purposes 28 Knli ti d men: o officer by, when authorized 47; A - W. 68 • of, when authorized ;r > ' ' • 52; A - W. 68, 69 . %, may initiate 62 prefer 62 • . n moval of 484 '. A. W. 117 Confinemenl of, when authorized 46(6), 52; A. W. 68, 69 Communications from, to medical officers not privileged 231 a al prosecution against, removal of 484; A. W. 117 Disciplinary power of ci i over ■ | Federal or State officials 413; p. 339; A. W. 63 ment, time lost to *>d 38 (e) n, 340; A. W. 107 Puni bmentsof, relative sev< rity of Reporter of court-martial ] ' r> Reporter of courl of inquiry 457 d, subject to military law 4(a) n, 13; A. W. 2 OX wrongful disposition of military property by 434; p. 344; A. W. 84 INDEX. 445 I'.: [ : ' ■ L by the letter "P :' War are indicated by the letters " A. w." preceding tlu v number.] Enlisted c Par. if, various kinds 311 Suffering Lobs of, damage to, or wrongful disposition of military prop< i by... 433; p. 344; A. W. 83 Enlisted Reserve < 'orps, when subject to la ay 4 (a) n Enlistment: Procuring, by misrepresentation or concealment concerning qualifications for......... 281,405; pp. 336 337; A. W.r.i Time lost to be made good ' 38 (e) n, 340; A. \V. L07 Unlawful, by officer 406; p. 337; A. W. 55 Without discharge 74 (n), 284 (a); A. W. 29 Enlistment, fraudulent , S* e Fraudulent enlistment. Equivalent punishments, table of 349; p. 107 Equivalents, for maximum punishment of offenses 349; p. 167 Error: In record of general court-martial, correction of 364 In record of special court-martial, correction of 364 In record of summary court-martial, return to court 365 Escape: From confinement 420; p. 340; A. W. 69 Suffering, of prisoner through design or neglect 57: 423; p. 341; A. W. 73 Espionage, punishable by death 432; p. 3 13; A. W. 82 Accomplices and co-conspirators, testimony of 224 Evidence 194-289 Admi- haracter evidence 205 Admissibility of depo Admissibility of record of proceedings of court of inquiry as 475 Admissions against penal interests of parties other than accused 226 Admissions or declarations against interest 226 Affidavits not admissible as 26!) Analysis of, by counsel for accused 196 Analysis of, by Judge-Advocal e 196 Articles of War 28 and 29 prescribes rules of 74 (n) n, 284 (a) Best evidence rule 237 ■f witness, how proved 260 Bias.' s affecting admissibility and weight 213 Binding force of common law rules upon courts-martial 199 Burden of proof rests with prosecut ion ; I icate of discharge admissible to prove good 270 ible 205 istantial, evidence of ch I 2()7> ( Lrcumstantial, evidence of services of accused 205 ( io tunstantial, illustral ions bel w< en good and bad 204 Circumstantial, introduction of, where there is direcl 203 atisfactory than direct 203 ( Lrcumstantial, motive or lac! of, illustrations 206 Circumstantial, o ? desertion 284 Co-conspirators and accomplices, testimony of 224 Comments by accused on ■ Common law rules of, when applicable to conn i-martial L98 Competency of witnesses. Set Witn Compulsory self-crimination prohibited 446 INLT X. amber, ■ the Dumber.] I i • ■niinued. ,. Inadmissibility of, aa a ilitj of facta discovered by reason of 2 ion, musl be corroborated 225 (o) ( sion, musl be voluntary to be admissible 235 (o) dasion, admissibility of 197 i Ion for admission in evidence 225 225 Confession, uncorroborated, not to be basis for charges 70 weight of , as 225 w hen admissible » iictive pardon in bar of (rial 273 ements out of court, proof of 262 C<>n\ i te, 1 1 « > w proved 258 Conviction of crime, when admissible 258 Courts-martial required to try matter before it according to 194 Courl of inquiry, testimony taken before addition of new members, pro- cedure as to 465 Credibility of accused as a witness, how attacked 261 Deceased witness, evidence of at former trial, admissibility of 275 Depositions. See Depositions. . Documentary, admitted or proved handwriting admissible for comparison. . 210 Documentary, authenticated copies of documents at headquarters of Army, department, division, brigade, etc., admissible Documentary, books of account, rub as to 244 Documentary, books of account where entrant is available to testify 244 umentary, certified copies of documents, expenses of obtaining, how ble I 93 mentary, civilian witness, procedure to obtain from 106 Db< uinentary, comparison of handwriting, rule as to 240 l ry, copies when admissible 238 Documentary, exceptions to best evidence rule 238 Documentary, manner of proving contents of writing 237 tentary, maps, photographs, sketches, etc, a* evidence 245 Documentary, memoranda, introduction as evidence, rujeasto 242 Documentary, memoranda, us.' of, to aid memory, etc 241, 243 Documentary, official documents, production in court 237 Documentary, official writings 238 . oiiici.dwriiiJi-~.ceri.iin. are evidence of facts recited therein. 239 Documentary, original, consisting of numerous writings 237 Documentary, originals 197 Documentary, procedure for introducing where original consists of numerous 237 Documentary, public records, official copy as evidence 238 Documentary, War Department records, authenticated copies, admissible. . 238 Documentary, when copies admissible 238 Documentary, when memoranda admissible 242 Documentary, when writings are evidence of facts stated therein 238 Drunkenness a,s showing absence of Lntenl 285 Druid;, onese in military cases as indicating La< b of intent 286 Drunkenness, proof of 287 Drunkenness, when admissible as defense 285, 286 Duties of court as to relevancy, etc., of, tendered 197 INDEX. 447 [References are to paragraphs, except where pages are indicated by the letter " P" preceding the number, and Articles of War are indicated by the lotters "A. \V." preceding the number.] Evidence — Continued. Par. Dying declarations, rule as to 222 Examination of sources of, by counsel 196 Examination of sources of, by judge advocate 196 Expert, foundation for 218 Facts of which courts take judicial notice 289 Former testimony, before courts-martial, proof of 275 Former testimony in civil courts and courts-martial, when admissible 275 Former testimony, in civil courts, proof of 275 Former t ssl imony in court of inquiry, when admissible 272; A. AY. 27 Foundation for admission of confession 225 Foundation for admission of statements of co- conspirators 224 Foundation for introducing contradictory statements 262 Foundation for introduction of writings 237 General remarks as to 194 Gist of offenses charged, reading to court 197 Handwriting ' 240 Hearsay, admissibility of 197 Hearsay, effect of rank upon rule 221 Hearsay, exceptions 221 Hearsay, inadmissible, illustrations as to 221 I 1-3) Improper questions, protection of witnesses from 201 Includes all matters of fact introduced, etc 194 Incriminating questions, proceedure when asked 235 Insanity of accused, procedure to determine 219 • Interest or bias as affecting admissibility or weight > 213 Introduction of all items of, in open court 194 Issues raised in case to be elucidated and settled by 195 Judicial notice 289 Leading questions, grounds for 254(1-5) Lost or destroyed writings, maimer of proving 2:;7 Manner of proving contents of writing * 237 Marital relationship, rule as to courts-martial procedure 213 1 3) Materiality and relevancy of. '. 202 Memoranda to refresh recollection 241, 243 Must be materia] and relevant 202 Necessary to sustain charge of absence without have p Necessary to sustain charge of advising another to desert p Necessary to sustain charge of agreement or conspiracy to defraud Ohito d States through false claims p Necessary to sustain charge of arson P Necessary to sustain charge of assault p Necessary to sustain charge of assault and battery p Necessary to sustain charge of assaulting noncommissioned officer p Necessary to sustain charge of assaulting superior officer p Necessary to sustain charge of assault willi intent tocommil manslaughter. . p Necessary to sustain charge of assault with intent tocommil rape p Necessa in charge of assaull withintenl to commit sodomy p Necessary to sustain charge of assaull with intent to do bodily harm p ■i charge of assaull with intent to murder p ■ Necessary to sustain charge of assault with intent to rob p Necessary to sustain charge of assisting another to desert p 53915°— 18 31 205 203 L'.).) 2*5 212 209 271 271 272 271 272 203 448 imt.x. ed by the letter "P" preceding the number and Articles ol War are Indie tted bj the letters " a. \\ ." preceding the aua Par . lustain charge of attempting t mutiny p. 214 je of attem] Bate Beditioo p. 214 ,M_v to sustain chargi ■ deserl p. 202 ary to sustain charge of 1 r joining in a mutiny p. 214 try to sustain charge of being :i spy p. '-'■'•" ary to sustain charge of being found drunk on duty p. 241 . sustain charge of being found drunk on post p. 242 in charge of being found sleeping >>n post ■ susti lin charg P- 219 burglary p- 256 i i charge of casting awaj i uunition • sustain charge of causing or exciting a mutiny p. 214 . to sustain charge of commanding officer being interested in the ol victuals, etc > try in sustain charge of committing depredation or riot p. 216 im charge of committing v LI p. 245 Necessary to Bustain charge of condud of a nature to bring discredit upon the military Bervice : • sustain charge of condud unbecoming an officer and gentleman, p. 28 L jlec< tain charge of crime or offense nol capital under general article (A. W. 96) PP- 2* Necessary to Bustain charge of dealing in captured oi abandoned my P 233 Necessary to sustain charge of delivery of a less amount than thai called for by receipt - P- 278 Necessary to sustain charge of desertion 284 (a Necessary to sustain charge of disobedience of order into arrest or con- finement p. 21? Necessary to sustain charge of disorders and neglects to the prejudice of good order and military discipline P- 283 Neci istain charge of disrespectful behavior toward superior • r. ;--■ 1' 208 Necessary to sustain charges of disrespect toward Federal or State officials. p. 207 Necessary to sustain charge of drawing weapon, doing violence or threat- ening upon being ordered into arrest or confinement p. 217 hi charge of dueling or aiding in , p. 2 18 ary to sustain charge of embezzlement X,.,, of embezzlement, larceny, misappropriation, sale, etc., of military property PP- 279 280 Necessary to sustain charge of entering into agreement or conspiracy to defraud United States through false claims p. 276 Necessary to sustain charge of entertaining deserter by officer p. 204 ■ from confinement p. 219 Necessary to Bustain charge of failure or delay in reporting the receipl of captured or abandoned property pp. 23 Necessary to . B of failure to give information of mutiny or ion ; P- 216 if failure to report prisoners received — pp.220 121 Nece mutiny or sedition p. 215 false muster P- 199 Necessary to sustain charge of false outh iu connection with claims p. 277 INDEX. 449 [References are to paragraphs, except where pages are indicated by the letter " P" preceding tho number, ami Articles at War are indicated by the letters "A. \V." preceding the number.] Evidence — Continued. Par. Necessary to sustain charge of false returns p. 200 Necessary to sustain charge of forcing a safeguard p. 23] B iu charge of forgery p. 286 Necessary bo sustain charge oi forgery of signature in connection with claims p. 277 Necessary to sustain charge of fraud against the Government pp. 273-280 Necessary to BUStain charge of fraudulent enlistment p. 197 Necessary to sustain charge of giving intelligence to the enemy Necessary to sustain charge of giving parole or countersign different from that received p. 230 Necessary to sustain charge of harboring or protecting the enemy p. 235 Necessary to sustain charge of holding correspondence with the enemy. . p. 235 Necessary to sustain charge of improper use of countersign p. 230 Necessary to sustain charge of inducing abandonment or delivery up of command p. 227 Necessary to sustain charge of inducing misbehavior before the enemy. . p. 227 Necessary to sustain charge of insubordinate conduct toward noncom- missioned officer p. 212 Necessary to sustain charge of intimidation, etc., of persona bringing provisions to camp, etc p. 245 Necessary to sustain charge of joining in a mutiny p. 214 asary to sustain charge of larceny p. 262 Necessary to sustain charge of laying of duty or impost by commanding office! upon the bringing of victuals, etc., into fort, camp, etc p. 243 • ary to sustain charge of making known parole or countersign p. 230 Necessary to sustain charge of making or delivering receipt without hav- ing knowledge that it is true p. 278 Necessary to sustain charge of making or presenting for approval a false or fraudulent claim against the Government pp. 274-275 Necessary to sustain charge of making, using, etc., false writings or other papers in connection with claims p. 276 - sustain charge of manslaughter p. 254 Necessary to sustain charge of mayhem p. 254 Nece . n charge of misbehavior before (iuuny p. 226 Necessary to sustain charge of misbehavior of sentinel pp. 242 2 13 Necessary to sustain charge of murder p. 251 Necessary to sustain charge of mutiny and sedition p. 2 1 3 Accessary to sustain charge of neglect to secure captured public property for public service p. 232 Necessary to sustain charge of occasioning false alarms p. 228 » sustain charge of offense under general article (A. W. 96). pp. to sustain charge of omitting to render returns p. 201 -ary to sustain eharge of perjury p. 266 Necessary to sustain charge oi personal interest by commanding officer in sale of provisions. ; Necessary to sustain charge of persuading another to desert Necessary to sustain charge of presenting or causing to be presented for approval Or payment a false or fraudulent claim p. 275 Necessary to sustain charge oi purchase in pledge of military property p. 280 Necessary to sustain charge of quitting post to plunder or pillage p. -:* 450 iniu-.x. iRofer,, be letter"? "preceding the nnmrjer, I u u :ir«> badloated by the letters "A. W." preoedinfl tho Dumber.] Evidence Continued. Necessary to sustai rape p. 252 Bury to sustain charge of recoil ing in pledge military property p. 280 Necessary to sustain charge oi refusal or omission by c ommanding officer to Bee reparation made for damage done to property by persons in military service P- 2 "*6 to sustain charge of refusal to deliver accused persons to civil authorities P- 2 -5 X. essary to sustain charge of refusal to "hey order placing accused in nfinemenl under A. W. 68 217 uy to sustain charge of refusal to receive ami keep prisoners p. 220 Necessary to sustain charge of refusing to aid civil authorities in appre- h( ading accused persons - - -- P- 226 ,ry to sustain charge of releasing prisoner without proper authority, p. 222 ary to Bustain charge of relieving or aiding enemy pp. 234-236 uy to sustain charge of retaining deserter by officer p. 204 ary to sustain charge of robbery ]>• 263 essary to sustain charge of sale or wrongful disposition of military property p. 239 sustain charge of sedition p. 213 sustain charge of sentinel leaving post before being relieved . p. 2 13 in charge of shamefully abandoning command p. 227 . to sustain charge of shamefully delivering up a command to the enemy P- — - 7 ary to sustain charge of sleeping on post p. 242 ary to l ustain < barge of striking noncommissioned officer p. 212 • ■ i sustain charge of striking superior officer : p. 209 Necessary to sustain charge of subordinates compelling commander to •or al landon command to -ustain charge of spoliation, etc., of military property i sustain charge of suffering prisoner to escape through design, p. 223 try to sustain charge of suffering prisoner to escape through neglecl . p. 222 Necessary to sustain charge of threatening, drawing weapon upon, or offering violence to officer or noncommissioned officer ordering per- a into arrest or confinement ]'• 217 to sustain charge of unlawful enlistment by officer p. L98 I unlawful muster in, by officer p. L98 to sustain charge of using provoking or reproachful speeches or ues p. 247 of wilful or negligent injury to, or loss of, military property - • P- 239 to su tain charge of wrongful appropriation of captured public proper! y P- 232 E wilfully destroying property p. 246 to sustain charge of wilfully disobeying superior officer p. 210 >;,,: to l e pleaded 7 ' ''\ Lon of other clinics, when adnii.-sil.lc 206 always admitted in military cases - s <> ( if former acquittal or conviction 274 Of former convictions, v. hen to accompany charges 75(5) Of form.r trial by court-martial or civil < ourt - 274 Of general orders, special orders, etc 289 INDEX. 451 [References ure (o paragraphs, except where pa.ws arc indicated by the letter " P" preceding the number, and Articles of War are indicated by the loiters " A. W." preceding the number.] Evidence Continued. Par. Of good character— summary court 351 (e) Of handwriting 240 Of intent in military cases, when required 281 Of pardon 273 Of previous com ictions, disposition of p. 334 Of previous convictions of soldier —summary courts-martial 351 (g) Of previous conviction to accompany charges 75 . p. 333 Of previous convictions, use of 30G, 307 Of reputation, when admissible 257 Opening statement by counsel and judge advocate 197 Opinion, where experts' required 218 1 'a ymenl of reward as, of desertion 284 Plea of guilty not to exclude taking of 154 (c) Prejudice of witness, how proved 2G0 Presumptions as to intent in connection with crimes 2^0 Presumptions of fact, defined and illustrated 278 Presumption of fact, effect of 278 Presumptions of law denned 277 Presumption of law, effect of 277 Prima facie, effect on doctrine of reasonable doubt 279 Privileged communications 227- 2. .2 Privileged communications, attorney and client, communications between. 227 Privileged communications, attorney and client, outside parties who over- hear may testify 227 Privileged communications, communications between civilian physicia*ns and patients not 232 Privileged communications, communications from officers or soldiers to medical officers not 231 Privileged communications, confidential papers, reports, etc 230 Privileged communications, defined 227 Privileged communications, defined as protected at common law, etc 227 Privileged communications, deliberations of courts 227 Privileged communications, grand juries, deliberations of 227 Privileged communications, heads of departments, official communications hot ween 227 Privileged communications, husband and wife, communications between. 227, 228 Privileged communications, husband and wife, outside parties who over- hear may testily Privileged communications, inspection reports, special, by Inspector Gen- eral's Department 230 Privileged communications, juries, grand and petit, deliberations of 227 Privileged communications, official communications between heads of de- partments 227 Privileged communications, police secrets 227 Privileged communications, prh ilegeofwifeand husband to testify 228 Privileged communications, repot a of rudge Advocate General to Secre- tary of War 230 Privileged communicat ions, statesecrets, communical ions classed as 227 Privileged communications, U legrams are not 229 Privilege L communications, wife to testify in prosecution for bigamy, etc.. 228 Procedure where alleged incriminating question is asked 235 ]Ni>i;\. 1'i.li 1 1 '-« i liv I ho lot t it ■• 1'" prf-.-.iiii.; tha ■ . • .• Die iiamlior.l Evidence Continued. P • Procedure where testimony in Conner trial of witness now dead or beyond fered 275 Proof of contradictory Btatemen >url 2G2 Eoundatii a for introduction of writings 237 ■ ion of witnesses from improper questions 201 Questions tending to degrade not material to the issue — 233, 233 (a ; A. Vi Record of courl of inquiry nol admissible in cases capital <>r those extend- ing to dismissal "i" officer Relationship of witness, how proved 260 ancy and materiality oi 195, 196 I ions as to whal constitutes 223 Elesgesta, rule as to 223 ted i" thai which is competent, relevant, and nun (.'rial L97 Rule absolute as to Belf-crimination Rule as to questions tending to degrade - Rule forbidding hearsay 220 ■martial 1!,s - l:;:) stolen property as evidence of Larceny Secondary, when admissible -' :7 Self-contradiction, how proved Self-crimination, privilege against, a persona] one 234; A. \\ . ill Self-crimination, requiring accused te submil bo physical examinati on is 236 accused 205 . conspirato] - and accomplices, when admissible Statemenl of Ben i I, examination by court, time of 271 Statement oi service, use for proof oi good character Statutory rules as to desertion oi officer 284 a); A. W. 28 ory rules as to desertion of soldier 284 (a); A. W. 29 ency of, to sustain conviction 24 Summary oi anticipated evidence, when to accompany eharges Tendered, duties oi court as to I: ' : Testimonial, definition and illustration oi Testimonial knowledge, rule as to 220 Lonial, oi v, i 1 to facts within his i uov ledge 220 Weight given to testimony ol witnesses '■' • W. iu'lit of, direel and circumstantial compared 203, 204 Weighl oi, how determined Weight t" be given confessions '-"-• > When corroborative, required 248 When statement of, bo accompany charges "■'» (a : !'• :;:;:; Witnessea Set Witnee Writings. 8ee Documentary, this title. Bxc< p1 ion« and substitui Findings varying from specifications as to date or place 7 1 9) Guill " Luded offence 298 with 299 aoi oeral for specific article in the charge 300 inga mutiny, denned !'• '-' [ Execution: Bfined P- 2° 9 Of sentences in penitentiary *38 ixdex. 453 [Refer. (graphs, except where pages are indicated by the letter •• P" preceding the Dumber, imd Article. s of War are indicated by the letters " \. \Y." preceding the number ] Par. Executive ord it prescribing maximum limits of punishment 349 Administrative rules 349; p. 10!) Articles 5 and 8 in force during time of war pp. L68, L69 Dishonorable discharge upon five or more previous convictions p. 168 Effect and application of 343 ; p. 1 i;s Limits of. not applicable in time of war 348 President authorized to prescribe 348 When effective 349 Expenses: ( )f court-martial reporter 1 1:5 Voucher for reimbursement of traveling p. ,n\ Experts: Capacity to testify as 218 Employment of, as witnesses L92 Expert witness, defined 218 False alarms, occasioning 41, 347, 425; pp. 228, 341-342; A. W. 75 False claims against the Government 444; pp. 346-348: A. W. 94 False muster 40 n. 281, 407 ; p. 337 ; A. W. 56 False oath, in connection with claims 444; pp. 277, 347-348; A. W. 94 False returns 40 n. 281, 408; p. 338; A. W. 57 False testimony p. 264 False writing: Defined p. 284 In connection with claims 444; pp. 276, 347-3 48; A. W. 94 Fees: For service of subpoenas L91 F< >r taking depositions 1-1 Fees of witnesses 17©, 172, 1 83 185, 1 93 Civilians in Government employ, transportation in kind, etc 184 Chilians not in Government employ 185 Enlisted men. active 183 Enlisted men. retired 183 oses of. how payable 193 In Alaska, mileage and 185 (6) In Cuba, mileage and In Philippine Islands, mileage and In Porto Rico, mileage and 185 (a) In Western States, mileage and L85 (c) Officers, active L83 ( officers, retired L83 Tender of, preliminary to prosecution of civilian witness for failure to appear, ete 170,172 Felony: Assault with intent to commit pp. 266, 346, 443; A. W. 93 By persons subject to military law ; p. 346; A.. W. 93 Should not be tried by special or summary courts-martial 78 Field bakery, when a detachment for disciplinary purposes 28 Field clerks. Army, BUbject to Articles of War Field clerks, Quartermaster Corps. subject to Articles of War Field signal battalion, when a detachment for disciplinary purposes 28 Files: .;'. power of court-martial to impose, as punishment 390 Power of President to restore, when sentence of court-martial is loss of 390! A. W. 50 454 INDEX. ptpba, exoept wt Indicated by the totter "P"- preceding the mnahy , i War an Indicated by the letters "A. W." preoeding the number.] Findings 90, 294-306, 351 if), :>:: (o) 401, 169 Closing of court for P Duties of trial judge advocates as to P Effect of tie vote 90 General principleB as to Guilty of general rather than Bpecific article 300 included offense ' Of court of inq tdry " i ' ■ 469 Of courts-marl ial 294-305 Ofguiltj Of guilty of Lesser included offense of summary court-martial 351 (/) Reasons for. may be Bpr< ad on record 302 Record of. by reporter 305 Substitution of ueneral for specific article 300 Tie vote, effecl of 90 Under charge of drunkenness 304 Where no criminality is involved 303 With exec] >t ions and sul ist it ut ions 299 Fine, punishment by -•-■ '''; Finger prints, introduction of as evidence 256, 239,245 Lng, punishment by, prohibited 344; A. \\ . 41 Foreign country: Powers of consular officers granted to certain Army officers where Army is serving 138(6); A. V. 114 Powers of notary public granted to certain Army officers where Army is aervingin.... 133(6); A. W. lit Taking depositions in Forfeiture: Of deposits '^' ( )f pay and allowances 32 I Sentence of, against soldier does not include class A allotment under war risk insurance act and whenever practicable should not. include class B allotmenl 311, 311 d For ery 11,i - pp. 284, 286, 352 ; A. W. 96 [n connection with claims 444; pp. 277,347 348; A. \Y. 94 ■ Action on sentence by reviewing authority 395; pp.371 373 Char i aeral prisoner - fications under Articles of War 74 • 352A I 1 ' 333 itions taken upon interrogatories P '^ rt-martia] order p. 375 General court martial, order appointing P- 332 a II. beae corpus by s rite court, for prisoner, return to writ P-392 Eabeas corpus by State court, for witness, return to writ pp. 389, 390 Habeas i orpus by United States court, for prisoner, return to writ., pp. 390-391 Habea United States court, for witness, return to writ p. 389 Inquest, report of P; *"** [nterrogatories and depositions P- 379 Pleading change of rank 74 (a-) Elecord of trial by general curt martial, and revision proceedings... pp. ! Record of trial by special court-martial PP- 365-366 INDEX. 455 [Reference arc to paragraphs, except where pages are indicated by the letter ■' P " preredinp the number, and Articles of War are indicated by the letters "A. W." preceding the number.] Forms — Continued. Par Record of trial by summary court p. 367 Report of inquest p. 409 Reviewing authority, orders vacating suspension of sentence I>. :;::; Reviewing authority, original action by p. 371 Revision of record of general court-martial pp. 363-364 Sentences by courts-martial pp. 369-370 Special court-martial order p. 375 Special court-martial, order appointing p. 332 a Suspensions, orders vacating by reviewing authority p. 373 Vouch* r for compensation of civilian witness p. 397 Voucher for personal services of reporter p. 405 Voucher for reimbursement of traveling expenses of civilian witness p. 401 Warrant of attachment p. 387 Forwarding of charges 76 Fraud: See also Fraudulent enlistment. Against the Government or officers thereof 35, 38, 74 (o), 149, 286, 347, 444; pp. 346-34S; A. W. 94 Against the Government, oaths in connection with investigation of, by whom administered ' 13s ( a ) ost the Government, statutes of limitations as to 149 (2) 1 tischarge obtained by. effect of 3s (d) Publication of dismissal of officer for 347 Fraudulent enlistment 60, 74 (n). 149, 281, 405; pp. 335-337, 393-396; A. W. 54 By deserter, how charged 74 (n) Confession uncorroborated not basis for charges 70 Defined 149 (3/); pp. 196, 197 Elements of p. 197 Misrepresentation or concealment of qualifications 405; A. W. 5-i "When second trial for, is double jeopardy 149 (3/) Fra\ : Defined p 216 Power of officers and noncommissioned officers to stop 47, 52, 419; pp. 216, 340, A. W. 68 Garrison courts-martial, abolished 5 n Genera artial. See Courts-martial, general. General issue. See Pleading. General officer, confirmation of sentence of 378 (a), A. W. 48 General Order No. 7, 1918, explained pp. 411-414 General Orders, how proved 289 General prisoner: • Confinement in disciplinary barracks, when proper 397 Confinement in penitentiary, when proper 396 Confim menl in post, when proper 398 Defined by 71 m Pleading of feci thai accused is 74 (j) Return towril of habeas corpus issuing oul of State court to produce. 478 (b); p. 393 Return to writ of habeas corpus issuing out of United States court to produce 479; p. 390 Segtt ation oi aeral prisoners 399 Sentence of, restricted to additional confinement at hard labor 330 456 INDEX. u-osareto par i - the ruimlwr, and IrttolM of War u»indlcatad bj tba letters •• a. (y."preaadiag the number.] Par. eman, conduct unbecoming an officer and 445; pp.348 849! A.. W. 96 Gestures, reproachful Maintenance of, redTeea of wrongs 481; A W. 105 I rnmenl empl Witnesses. rnment, frauds against 35, 38, 74(o)i L48 286,347, HI; pp. 346-348; A. W. 94 (irand juries, deliberations of. See Evidence-, privileged communical Gratuity, wrongful taking of money, etc., on muster 281 UK: p 337; A i Guard, absence from, without leav tin. L49 (3) (e), 281, 283-28!. 412; p. 3:5!); A. \Y. 01 Guilty: Finding of 297 Finding of, oi lesser included offense 298 Finding of, power to approve in whole or in part 377 (a) Finding of. with exceptions and substitutions 299 Plea of. effect to be explained to accused 99 Plea of, in summary court, explanation to accused 351 (d) Habeas corpus 33, 476-480, pp. 389-396 See also Warrant oi atta< bment. Brief to he Hied with return to writ issued by United stut-^ court to obtain discharge of minor p. 393 Contents of return to writ by State Court 478 Contents of return to writ by United States court 479 Form of return to writ issued by State court to obtain release of prisoner. . p. 3!)2 Form of return to writ issued by State court to obtain release of witness... p. 3!>0 Form of return to writ issued by United States court to obtain release of prisoner p. 389 Form of return to writ issued by United States court to obtain release of witness p. 389 Is8ue of writ in Philippine Islands 4^-0 Jurisdiction of State courts to is^ue writ 477 Purpose of writ 476 Return of commanding general to writ issued in Philippine Islands when conclush e 480 Return to writ issued by State court 478 Return to writ issued by United Stales court 479 Rel urn to w lit issuing out of State court in case of an enlisted man -178 (b) Return to writ issuing out of state court in aeral prisoner. . . Return to writ issuing out of State court when witness held under warrant oi attachment 478 (<>) To review judgmenl of courts-martial 33 Where restraint i., by United States, State court without authority 477 Hand ■•■Hi ing, comparison of. documentary evidence 240 Hard labor: Confinement at 322 Without confinement 32:;, 349; p. L69 Hawaiian Territory, trial in either military or civil courts in, is bar to trial in other ior same acta 14!) ('.id) index. 457 [References are to pnraenphs, except where pages, are Indicated by (he letter "P" preceding than and Articles of War are indicated by the letters " A. \\V preceding the number.] Homicide: Par A ccidental p. 250 By sentinel to prevent escape of prisoner p Death must result within year and a day p In compliance with orders or supposed duty p In seli'-.i 250 p. 250 Justifiahle p. 249 Horses, losing, injuring, etc 74 (<•), 281, 299, 434; p. 344; A. \V. M W id and wife: Competency of, as witnesses 213 Idaho, fees and mileage of civilian witnesses in 1 85 (c) Identification: ( 'ompeUing accused to exhibit body for purpose of 236 Proper procedure to establish identity of accused by examination of his person Ignorance oi fact as a defense ; Ignorance of law: Art ides of war, certain to be read to enlisted men 2s2 Responsibility of person, notwithstanding 282 Incriminating questions, prohibition of 214-215, 233-236; A. W. J 4 Incrimination. See Self-crimination. Indirect, evidence deft tied 202 Inducing misbehavior before the enemy, etc 425; p. 342; A . W. 75 Injury to person or property, redress for 481; A. W. 105 Innocence, presumption of, evidence to overcome 279 In- 1 Lesta, duties of summary court to investigate sudden, violent, and unnat- ural deaths 483; p. 409; A. W. L13 it, form of report p. 109 Insanity: As affecting competency of witness 212 At time offenses were committed, defense under general issue J 54 (g) Duty of judge advocate where accused insane 2 1 9 Failure to plead as result of, action to be taken 155 Of accused, procedure to determine, where it becomes issue 219 moral's Department, special inspection reports. See Evident,., privileged communications. Insubordination toward nonceinmissioned officers 443 (IX); pp. 339 340; A. W. 65 Insubordination toward superior officer 415. t43 (IX); p. 339; A. W. 6 \ Insular . fees and mileage, civilian witnesses in 185 (a-c) ! De-ertion, presumption as to continued absence without leave 284 I drunkenness as showing absence ef 285 Drunkenness in military cases as Indicating lack of 286 '-hnient in evidence, when required Presumption of. in connection with crime I To commit a felony, assault with pp. 266, 346, W3; A. W. 93 When • plead When required to lie proved I ■ Interest, as affecting competency or credibility of witness Interested, defined pp. 243-244 458 INDEX. [Reference* are to para ted by the letter "P"pr 'irUs of \\';ir .ire indi< ited by the letters " \. \v." preceding tbe number.] Interpreter: par. Appointment of 119, 136, 457; A. \Y. L9, L15 Appointment of, for court of inquiry 457 Courl 'if inquiry, oath of 4GG Courts-martial, oath of 136; A. W. 19 Courts-martial, pay of 119; A. W. i 15 Lnterro atories. Set Depositions. [ntimidat ion of pens >na bringing provisions to camp, etc. .438; pp. 33 I 335; \ . W. ^8 I competency of witness 212 I igation: :>■{ of inquiry 1 !7 175 lit of inquiry, attendance of person being investigated 462 By com t "i" inquiry, revision of 471 ( )i charge b, procedure for 76 Officers detailed to make, may administer oaths for military purposes, etc L38(o) (6) Iden, violent, and unnatural deaths by summary court 483 Irons: ■ I tried in i'-ons, effect of 88 When accused may be tried in .- 88 When tay be placed in 56 Jeopardy, double. See Double jeopard} . Joining in. defined p.. 214 Joint accused: Motion to sever by one of two or more 156 ! se of one of the accused as witness by prosecution 156 Joint cha Acquittal or conviction on, effect of 301 Lof 69 Joint offense: Defined 69 Joinl trial permitted 69 Separate trials permitted 69 Joint pr eecution, when permissible 69 Joihl trial, extra copies of record 117 .in. I-, a Administration of oaths by 91, L33-138; A. W. 19. II i Advice to accused 96; A. W. 17 Advice to curt 99,101; A. W. 30 Analysis of evidence by 196 Appointment of 30,94, L06; A. W. II ml 30,94, 106 107; A. W. 11,116 Authentication of record 95 Certify voucher of ci\ ilian v. itness 187 ( !hallenge by 133 < Jhallenge of 120 Conduct of, during trial 86 Death, disability, or absence of , during trial; authenticated record 95 Denned L07 Detail of soldiers to as.si.st 105 Dm i iter 9". L03, L23, L33, pp. 353 356; A. W. 17. 116 Duties of 31,84,94 Kit. i :.':;. L32 137,219,266; pp. 353 356; A. W. 11.17 INDEX. 459 [References are to paragraphs, except where pages are indicated by the letter " P" preceding the number, and Articles of War aro indicated by the letters "A. W." preceding the number.] Judge advocate— Continued. Par. Duties toward accused 96 Duty as to absence of member of court-martial 85 Duty as to findings p. 355 Duty as to order convening court 97 Duty as to preparation of case 196 Duty as to roll call 84 Duty as to self-crimination by witness 234 Duty to expedite trials 103 Duty to notify court-martial of illegalities or irregularities in its proceed- ings 99 Duty to present wbole truth of case 98 Duty upon receipt of depositions 266 Duty where accused is or appears to be insane 219 Duty where general court-martial is, or is likely to be, reduced below a quorum 7 (a) Duty where membership of special court-martial is reduced below mini- mum 7(6) Duty where personally interested or hostile toward accused 102 Examination of sources of evidence 196 Has right to challenge 123 How appointed 30; A. W. 81 How far controlled by court 100 Legal adviser of court-martial 99, 101 May act as notary public in foreign places where Army is serving . 138 (6); A. W. 114 May administer oaths for military purposes 138 (b)\ A. W. 114 Notary, right to act as in foreign places 138(6); A. W. 114 Not subject to challenge 120 Oath, additional ceremony to bind conscience of 132 (d) Oath of 133; A. W. 19 Oaths, administration of, by : 91,132,138; A. W. 19,114 Opening statement by 197 Power of, as to arrests 47 Preparation for trial, as to admissibility of evidence 199 Qualifications of 94 Record of proceedings 95,354-368; pp. 353 356; A. W. 17,33-36 Report of result of trial to commanding officer 332 a Right to administer oath or act as notary 138 (6); A. \V. 1 1 i Selection of 94 Suggestions for preparation of cases for trial pp. 353-356 im to be worn at trial 82 Weekly report 104; p. 356 Where seated in court 83 .Indue Advocate General: Reports to Secretary of War. See Privileged c omm un i cations. To review all cases involving punishment by death or dismissal before exe- cution of sentence— G. O. 7, W. D., 1918, and regulations there- under PP- 41 1> 4 1 4 Judicial notice: I ». sfined 289 Facts of which courts-martial take 289 Facts of which courts take, to be considered as evid< nee 194 Procedure of court-martial as to 289 4ti() INDEX. idicated by ; : and article* ol War are Indicated by the letters "A. W." preceding the number.] Juriadiction: |,,r Military, ool territorial :;7 Military, when exclusive 35 ( M" ch il and military courts, when i oncurrenl ( if emu ts martial Of courtB-martial, as affected by maximum punishmei I e 78 <»f court-martial, how affei • ence of judge advocate in cl - u "" Of courtB-martial, bow divested Of courts-martial, is exclusively criminal 33 Of courts-martial, requisites of ■ '■ ( »f courts-martial, termination of 38 < tf courts-martial, when concurrent with other military tribunals 45 < if courts-martial, when terminated < if courts of inquiry ' Of departmenl commander o> er accused after approval of sentence 402 Procedure whene concurrent, military and civil Knowingly, denned P- 1!IS Knowledge, defined PP- ''■- Larceny. 149,280,285, 143; p. 346; A. W. 93 And sale of public property, how charged 7 1 o); A. W. 94 Defined P- 257 Evidence of M Of military property : 444; p. 279; A. W. 94 Statute of limitations ' 1: ' Lawful order defined p. 210 Leading questions Lesser included offenses. ; Sentences, approval of lesser in- cluded offenses; Sentences, power to confirm part of finding. Power to approve Power to confirm Power toconvid of Limitation as to number of trials for .-ame offense. See Double jeopardy. Limitations: Upon applications for clemency 404 Upon power to convene court of inquiry 448 Limitations of disciplinary power 333 Limitations, Btatuteof 149,451; A. W. 39 Application to trial by court of inquiry Limits of punishment 40, 42, 44. 30 • 330-333,340-349; pp. 3G9-370, 375-377 ; A U Lose, defined PP* 23 I pay, mitigation of sentence of oi records of trial before re\ Lowing authority has acted Malice aforethought, defined P- -■■" Malice defined P- -'" Manslaughter 35, 1 19, 280, 2s:.. ! i:; : ,,. :; n; ; A W 93 It with intent to commit 443; p.269.; A. W.93 ed 1' - ;,:; Statute of limitations 1J 167 General limitations upon 349 ; p \q-j Mayhem 35, 443 ; pp. 254, 346; A. W. 93 p. 254 runishment for 443; A. W. 93 Statute of limitations 149 Medical Board: Observation and report of accused where insanity is an issue 219 Medical 1 >epartment of Na\ y, when members of. subject to Articles of War 4(d) Medical officers, communications from officers or soldiers to, not privileged . . . 231 Medical officer, when arrest authorized 51 Medical treatment, refusal to submit to gg Memoranda. See this title, Evidence. Members, of Courts-Martial. See this title, Courts-martial. Mileage : Civilian witnesses, expenses of, from what appropriation payable 193 < 'i vilian witnesses, payment for return journey 186 Civilian witnesses, rales 1§5 Civilian witnesses, rates in insular possessions 185 < u - c ) Ci\ ilian witnesses, rales in Western States 185 ( c ). Civilian witnesses, tender of, preliminary to prosecution for failure to obey subpoena 170 170 Court-martial reporter ] ] 3 ( e ) Military Academy: Authority of superintendent to convene court-martial 14. It!; A.W.8 L2 Jurisdiction of courts-martial appointed by superintendent... 14, 16; A. W. s. 12 Military boards: President and recorder of, administration of oaths for military purposes, etc 138(6); A. W. 114 President and recorder of, powers of notary public in foreign places where Army is serving 138 (6); A. W. 114 Military commission : Concurrent jurisdiction with court-martial 2,3, 46: A. W. r> Record of court of inquiry admissible as evidence before 272; A. W. 27 Witnesses, refusal to appear or testify, punishment for 170; A. W. 23 Military discipline, conduct prejudicial to 35, 71, 7 1 1. . 90, L73, 231,23?^ 286, 294, 300, 415, 420. 423, 446. 460; pp. 282, 336 W. 462 INDEX. [Reference rn-r to pnrnrroph 5 , except where pages ere Indicated b the letter "P" preceding the number, end \ n i- -I.--. if War are Indicated by theletters"A. W." preceding the number.] Military governm< Par. I defined 2 (n) Duration <>>' 2 («) Military jurisdiction: , rurisdiction; « ' i - it courts; Civil authorities; Civil offenses. Courts exercising 3 Kinds of 2 Nol territorial 37 Source of 1 'I hrough what tribunals exercised 3 Military law: 1 2(rf) Persons subject to 4 Sources of - " !) Military prisoner: Exercise of clemency in case of 402 cl to military law 4,13,38,74 fj ; A. W. 2. L2 Military property: damage or wrongful disposition of 281, 433, p. 344; A. W. 83 Loffl, waste or ■wrongful disposition of, issued to soldiers. 281,434, p. 344; A. W. 8 1 Purchasing or receiving in pledge 444. pp. 280, 348; A. W. 94 Military Bervice: tdingto bring discredit upon 446, pp. 283, 349-852; A. W. 96 nto, subject to military law Military tribunals: Kinds of 3 Other than courte-martial, jurisdiction of 45; A. W. L5 Military witnesses: Attendance of, how secured L63 Retired, attendance of, how secured 163 Militia, when Bubject to military law 4 (a) n; 9; A. \Y. 2 Minority, of deserter, effect of 60 Misappropriation: 1 lefined P- 279 Of military property 444; pp. 278,348; A. V\" ill Misbehi Before enemy 41,347, 125; pp. 341 342; A. W. 75 Denned ■.-•-•■ P-225 Inducing, before enemy 425; A. W. 75 Of sentinel 436; p. 344; A. W. 86 Miscellaneous provisions 481 486 Misrepresentation, defined P- 197 Mitigation: < if punishment, defined 380 ntence 381 le 382 Modification of sentence, before publication 387 M oing of muster roll 407;p.337;A V • tana, fee and mileage, civilian witnesses in 185 (c) INDEX. 463 [Poforen-es arc to paragraphs, except where pages are Indicated by t he letter "P" preceding the number, and Articles of War are indicated by the loiters- A. W." preceding the number.] Motions: Par. Nolle prosequi, grounds for entering 158 (a-b) Nolle prosequi, is a withdrawal of existing charges and not acquittal or pardon L58 To elect, act charged under two or more tonus 157 To sever, by one of two or more joint accused L56 Motive, evidence of 206 Murder 35,40,346,378, 142; p. 346; A. \V. 92 Assault with intent to p. 268 Defined p. 249 Puniahment for 40 n; A . \Y. 92 Trial for, not barred by statutes of limitations 149 Muster: Defined p. 198 False 281, 320, 378, 407; p. 337; A. W. 56 Muster in, unlawful 406; A. W. 55 Mutiny 41,338,378,417; p. 340; A. W. 66 Attempt to create 417; A. W. 66 Defined ... p. 213 Failure to give information of 418; A. W. 67 failure to suppress 41, 378, 418; p. 340; A. W. 67 Trial for, not barred by statutes of limitations 149 Name: How pleaded 74 (h-i) How pleaded, where accused known by more than one name 74 (h-i) National Guard: Courts-martial system for, not in Federal service pp. 331-332 Subject to military law 4,9-13,38,74 (j); A. W. 2 When subject to laws, etc., governing Regular Army 4 («) n National Guard Reserve, when subject to laws applicable to volunteers. ... 4 (a) n Navy, when medical officers of, subject to articles of war 4 (ft 7 ) Neglect of duty, prejudicial to good order and military discipline. . . 35, 71, 74 (e), 90, 173, 231, 235, 286, 294n, 300, 415, 420, 423, 446, 460; pp. 336, 349-352A; A. W. 96 Neglect to secure captured public property 429; A. W. 79 Nevada, fees and mileage, civilian witnesses in 185 (c) New Mexico, fees and mileage, civilian witnesses in 185 (c) Nolle prosequi: t of 158 Grounds for 158 (a-b) mmissioned offi< er: [ncluded in term soldier in A. W. 1 4 n lui ! toward 416; A. \\ . 65 Nol triable by summary court, unless he consents 43 Punishable by reprimand 318 Punishment of 349, p. 167 ace of, to reduction 327 Status of, in arrest 53 Notary public, general powers of, grant to certain Army officers in foreign places where \v.:>- is serving 138 (6); A. W . 114 53915°— IS ■ 464 INDEX. [Roferc. ' nl by the letter "P" p ml>er, • re indicated bj the letters "A. W7' preceding the number.] Par. Atruiiiau.ii. form oi 132 (o, 6) Authority to administer t38; A.W. III i lert of department investigating fraud.-, administration of 138(a) ji, observed during administration of, to members, judge ad- tte, etc sl> - ' Defined !' - ,,; ' • section with claims 444; p. 277; A W. 94 For administrative purposes, who may administer form of ] ' M >'- A - ^ ■ l!) ■, of frauds, etc., who riiay administer 138 (a) Judge advocate, form of Military administration, officers authorized to administer for purposi A. W. Ill :e, officers authorized to administer for purposes of 138 (ft); A. W. 114 Ofenliatmenl 282; A. W. 109 rpreter, court <>f inquiry 466 Of jud ■ additional ceremony to bind conscience of Of members of courts-martial, additional ceremony to hind conscienceof. Of members of courts-martial, administration of by judge advocate 91, L32 L36; A. \\ . 19 of courts-martial, form of 132 (a); A.W. 19 Of membersof courts-martial no1 findings, sentence, votes and opinions of members 91; A. W. 19 abersofcourts-martial'to be administered anew in each case. 132(c); A.W . 19 Of members of courts-martial to tef ■ form ( u' members of courts of inquiry, administration of, by recorder. . -1W3; A. \V. loo in reporter of court of inquiry _ •--■ 466 of v itnesses in court-martial, additional ceremony to hind conscienceof.. Of witnesses of, in court of inquiry - ll " ) r of department investigating frauds, etc., administration of 138(a) rmof 135 (»); A - W - l9 Witnesses, by whom administered in certain cases 134(6) Witnesses form of 134(a); A.W. Lfl Offenders, delivery of, to civil authorities 424; A. W. i I < > n't • i : \Uo Sentences, power to confirm part of finding. Againsl specific articles of war should be so charged 7 1 i< ) Approval of thai part of finding of particular offense 377 (a) Committed after arrest or confinement on original charges, how charged. . 73 Committed in past and doI specified in original charges, how charged. ... 73 included offense Lesser included ofl to< onfirm : ' ,!l Requisites of proof of ""* Scandalous and di graceful, bow (.leaded Trial. I.- h ■■en.-ral r,.urt -mart ial 39,40 Triable by special courts-martial 41 Triable by summary court I:; '-' ral article ' " i; A u ' i,; Officer: Commanding for the time being, approval of sentence by 374 Commanding for the time being, defined 3 '4 ixdex. 465 [References Me M paragraphs, except where page • are indicated by 'lie loiter " P " preceding I ho number, and Articles of War are indicated by the letters "A. W." preceding the number.] Officer — Continued. i' :r Gonducl unbecoming.. 40n, 71, 300, 308 309,312,378, 145; pp. 348-349; A. W. 95 Court of inquiry record admissible as evidence for, in case extending to dismissal of 27 J; A. W. 27 Defined 4 n, 8; A. W. 1 Disciplinary punishments, liability to '. 336 Dismissal of, for cowardice or fraud 347 Disrespect, toward Federal or State officials 413 Drafted, eligible for memberships on court-man ial 9 (c) Drunk on duty 435; A. W. 85 False muster by p. 199 Found drunk on duty 435 • A . W. 85 How placed in arrest 48 May p - 03 Medical, communication from, not privileged 231 No1 to beplai din arrest for light offense 50 Not triable by court-martial appointed by Superintendent of Military Academy 14 Not triable by special court-martial 41 Nol t riable by summary court 43 Power to order into arrest 47 Procedure for arrest of, without preferring (barges 50 Punishment by reprimand 318 Retired, active duty in time of war 453 Retired, assignment upon courts of imp dry ! :,:•; Retired, subject to military law •!,!).!: A . W. 2 Retired, when eligible for membership on court-martial 9 {b) Right of dismissed officer to trial by court-inartial J5n. :;^ b) Sentences of 310 Stat us of, in arrest 19 fcoxy rules of evidence, as to desertion 284 (a) ; A . W. 28 Triable by general courts-martial only 12; A. W. 16 Trial of, by inferiors in rank not usually permitted 12 («>; A. \Y. lb' Unlawful enlistment by 406; A. W. 7,5 Unlawful muster in by - 406; A. W. 55 When arrest or confinement authorized 46 (a); A. W. 69 Who may arrest 47; A. YY. 68 Witness fees and mileage 183 Officers' Reserve Corps: When n aer e officers are eligible for membership on court-martial 9 (c) \\ hen subject to laws, etc., governing Army Official documents, foundation for introduction of 237 Omission: In record of general court-martial, correction of In record of special court-martial, collection of In record of summary court-martial, return to court Open session, advice of judge advocate i" he obtained in 99, 101 Operation, refusal to submit to Opinion e\ Ld< ace: As to drunkenness 287 When admissible 218 Oral statements, how pleaded 74 {I) 4 C,G INDEX. IRcforencos are to paragraphs, except where paces are indicated by the letter "P" preceding the number, ■ ' \\ or are Indicated bj the letters "A. w." preceding the number.] , ■ Par. Court-martial, form of P- '■'•~ iJ Court-martial, information contained in '100 [nto arrei I and confinement, disobedience of ]»■ -17 ii. when it may be vacated 393 pensions bj n vi< wing authority p. 373 ind mileage, civilian witnesses in 185 (c) Papers, < i\ ilian witness, procedure to obtain 166 Pardon: Denned 150 K\ idence to support plea of, in bar of trial -■ :; to mitigate or remil sentences 380 385,390, 102 103; A. W. 50 of LS0 Parents, right of parents of minor deserters 60 Parole: Defined ••— P- 23 ° ( lr countersign, making known 427; A. \\ . 77 Pay: Courts-martial withoul power to order assignment of 325, 329 3-martial without power to stop, in favor of government or individual. 3 Detention of ^ :'■;.. ii ,.;'. punishment by 328 Extra for clerical duties, when forbidden 118 Forfeiture of 124,343 Stoppage of, when unauthorized 325, 329 Penal I bast, punishment for 338 Application for clemency by prisoner confined in 402 Confii at in * 337-339,341,396 399; A. W. 42 tion of sentences in 338 . commission of 35. 149,443, p. 346;A.W.93 iniflhable by confinement in 338 Senten ority for, to be shown in record 339 Perjury: Commission of 35, 149, 443, p. 346; A. W. 93 Corrobor itive ■ Ldence required 248 Defined P- 264 Numbi r of w Ltnesses required to sustain conviction of 248 Trial for, statutes of limitations I 49 Compulsory examination of, not self-crimi nation 236 Injury to, redr< - for 481 p. 1 1 in mmanding officer, in sale of provisions 437; A. W. 87 form of voucher for payment to reporter p. 405 1 military law 4,9 10, 13,38,74 fj); A. W. 2 Pi therto desert 4I ° p ( i n r Eor writ of habea 1 corpus. S« Habeas corpus. juriee deliberationffof. See Privileged communications. Philippine I civilian witnesses in 165 (c) n Habeas 1 ra pus, issuance of writ of, in _ !su u Return by commanding general to writ of habeas corpus, when conclusive. - 480 n INDEX. 467 [References are to paragraphs, except where pages are Indicated by the letter "P" preceding the number, and Articles of War are indicated by the letters "A. \V." preceding the number.) Philippine Islands— Continued. Par. Trial iii either military or civil courts in, is bar to trial in other tor .same acts 1-19 (3(7) Witnesses, punishment for refusal to appear or testify 1 7 L Photographs, as evidence 245 Physicial examination; requiring accused to submit to is not self-incrimination. 236 Physicians, civilian and military, communications between patients and, not privilege d 231, 232 Tillage, quitting post to 425; p. 228; A. W.75 Place: Of meeting of courts-martial, how determined 81 Plea: Of guilty by accused before summary court, effect of 351 (d) Pleading: A lias 74 (i) Allegations of time and place Alternative, forbidden 74 (c) ( hange of rank 74 (k) Description of accused 74 (b) Desertion followed by fraudulent enlistment 74 (n) Disgraceful offenses 71 (to) Evidence not advisable 74 (d) Fraudulent enlistment by deserter 74 (n) General issue, accused must plead on overruling special plea 153 (d) General issue, change of plea under 154 (b) General issue, insanity at time offenses were committed .is defense under 154 . I issue substitution of special plea for 154 (b) General issue, usual form of plea 154 (a) General prisoner 74 (j) In words of statute 74 (p) Larceny and sale of public property 74 (o) Name of accused 74 (h, i) Necessity of all* ging intent 2S1 ainst specific articles of war 74 (e) Oral statements 74 (I) Place 74 (g) Plea of guilty, accused to be advised of elements constituting offense 154 (d) PL a of J uilty, accused to be advised of maximum punishment for offense. 154 (d) Plea of guil I by statement of accused inconsistent with 154 (e) Plea of guilty not to exclude taking of evidence 154 (c) Plea of guilty, record must show explanation by president of elements of offense and maximum punishment, and reply of accused thereto 154 (d) Plea of guilty without criminality is irregular, etc 154 (/) Refusal of accused to plead 144-1 15; A. W. 21 Refusal to i plead, action 155 ];. quisites of charge and specifications against a general prisoner '< ' > Requisites of proper charge and specification 74 Sale of Btol< n public property 74 (o) 74 (to) Time 74(g) Written instrument 74 (I) 468 ini'Kx. QMmNHn a dl c ated by the letter "P" preccd tot gtha number, . i In- ininil.«T. ] •uili\ , procedure'dn ' '' IS perty in 444; ]>. 280; A. W. !» 1 Plunder, quit W. 75 o punishments 84J Porto ' . i\ ilian witnesses in L85 a) Trial in either military or civil courts in, is bar to trial in other for same arts J Poet: Confinement to limits of :; ' ,;) Quitting, to plunder or pillage 425; p. 228; A. W. 75 Sentinel drunk on 436; A. W. 86 relieved 438; A. W. 86 Si ntinel Bleeping on 436; A. W. 86 Presidential pardon. See Pardon. President: tins title, Courts-martial (general and special); Courts of inquiry; Military boards. < »i court-martial, etc., duties, powers, and rights of 89 trt-martial, etc., may appoint into rpreter 119 ■ n-iuanial, etc., 1" tppoii t reporter 112 court-martial, to authenti p. 356 denl of United States: Authority to appoint general court-martial M mptuoue oi disrespectfu] words concerning 413; p. 339; A. \\ . 62 . ,., |, t classes oi persons Erom trial by summary court 43; A. W. 11 be modes of proof for courts-martial, etc 198; A. W. 38 May prescribe procedure for I ourts-martial, etc 198; A. W. 38 iption of fa* t, defined tption of law, defined 277 I in connection with crime 280 of 276 Of desertion, from absence without leave 284 efined p. 208 I'm ious con ■ iction: i • ■' ' ' Defined 307 Effect on question of guilt of particular charge 307 : upon dishonorable discharge 349; p. L68 nee of 349; P.- l68 re summary court :;: ' 1 ace of, when and how used : - . 306 306, 307 Prima facie evidence, defined ~' 1 ' Prior offenses, subjecl to pre^ ious laws 487 ■ r: Absence of, effei t of on date of beginning sentence of confinem< at 401 Change of place of confinement of 389 INDEX. 469 [References are to paragraphs, except where pases arc LndJ sated by the letter "P" preceding the number, and Articles of War are indicated by the letters " A. W." preceding the number.] Prisoner— Continued. Par. es against, investigation of 54,77,80; A. W. 70 eonfinement of accused 46-57,420; p. 340; A. \Y. 09 I tefined pp: 219-221 Escape of, through design or neglect pp. 222, 223 Form of return to writ of habeas corpus for pp. Persons under sentence adjudged by court-martial subject to Articles of War 4, 9-10, 13, 38; 74 (j); A. W. 2 Refusal of commander of guard to receive 55, 421; p. 341n; A. W. 7L Refusal to receive and keep, how punished 55, 421 ; A. W. 71 Release of, without proper authority 57,423; A. W. 73 Report as to prisoners received, by commander of guard. . . 55 n, 422; A. W. 72 Report of, by commander of guard 55 n, 422; p. 341 ; A. W. 72 Return by commanding general to writ of habeas corpus issued in Philip- pine Islands 480 Sentenced to confinement in penitentiary, application for clemency in case of 402 Buffering prisoners to escape, punishment for 57; A. W. 73 Unauthorized release of 423; A. W. 73. When may be placed in irons p. 56 When to be shackled or handcuffed 56 Prisoners, segregation of 341 Prison discipline, means of enforcing >45 Prisoner of war, return by commanding general to writ of habeas corpus issued in Philippine Islands 480 Private claims, against officers and soldiers, when matter for discipline 71 Privileged communications. See Evidence. Proceedings: Action on 369-400 Publication of, of court of inquiry 472 Record of general court-martial 357 Record of must be complete in each case arraigned 143 Procedure: As to previous convictions 306-307 Of courts of inquiry '• p. 290 < If courl 3 of inquiry with reduced number of members 465 Of general courts-martial. (See Courts-martial; Courts-martial (general), etc. Of special courts-martial 350 Of summary courts-martial 35 1 On revision, by general court-martial 352 On revision, by special court-martial 352 On revision, by summary court-martial 353 Process 'I - ,, be produced with return of writ of habeas corpus issued by State court to issue to obtain witnesses 159-169,172; pp. 383 390; A.W.l'J Prohibited, punishments 344 3 15 Promotion: Of I lember of court-martial during trial, effect of 93 Soldier holding certificate of eligibility to, not triable by summary court- martial 43 Promulgation of sentence, action after 401-404 470 iNPi.x. meferei '■' totter "P" preceding the number, and Articles ol War are Ladl< i mber.] I Sa I'.' Ldence. Par. ■ nee without leave P- 205 ising another to desert P 203 ; .,; con piracy to defraud United States through false claims.. . p. 275 D PP- 254 255 ■ ilt PP- 284-285 .ill and battery P- 284-285 mltingnonc ed officer P- 212 mlting or willfully disobeying superior officer pp. 20 • 210 aultwithinl ater p.271 Of assaull with intent to commil rape p. 271 ii Bodomy p. 272 Of assaull with intenl to do bodily harm p. 272 Of assaull with intent to murder p. 271 ih v. iili intent to rob P- 272 jting another to deserl P- 203 Ofatte) create a mutiny p.213 Of attempting to deserl p. 202 Of attempt to cr< ate Bedition P 213 Of beginning or joining in a mutiny p. 214 Of being a spy P -■''' Of being found drunk on duty p. 241 Of breach of arrest p. 218 Of burg lary P- 256 Of castinj away arms or ammunition P- 228 Of causing or exciting a mutiny p. 214 Of commanding officer being interested in the sale of victuals, etc., in fort, camp, i tc p. 244 Of commission of waste or spoil P- - '•"> Of committing depredation or riot p. 246 Of conduct of nature to bring discredit upon the milita - p.283 < if conduct unbecoming an officer ami gentleman p. 281 of crimee or offenses not capital under general article (A. W. 96). . . pp I < if dealing in captured or abandoned property p. 233 of delivery of a less amount than that called for by receipt p. 278 Of depredation or riot p. 246 ertion PP-20] 202 Of disobedience of order into arrest or confinement p. 217 Of disorders and negl< cts to the prejudice of good ordei and military dis- cipline P-282 ml behavior toward superior officer !'• 208 Of disrespect toward Federal or State officials 413 Of dueling or aiding in p. 247 Of embezzlement I' - ,,,! Of embezzlement, larceny, misappropriation, sale, , rop- P- 279 I P- 204 mfinement p. 219 ; ■ r through design P- 223 aer through neglect P- 222 ( )f excit in'.- a mutiny P- 214 < >f fail nr delay in repoi tin- receipt of captured or abandoned property., p. 233 INDEX. 471 [Reference are to paragraphs, except where pages are indicated by the letter "P" preceding the number, and drticles of War are indicated bj theletten "A. \\V" preceding the number.) Proof— Continued. Par. Of failure to give information of mutiny or sedition p. 216 Of failure to report prisoners received p 220 Of failure to suppress mutiny or sedition p. 215 Of Ealse oath in connection with claims P- 277 < >i false muster by officer P- 199 Of false or fraudulent claim against the Government p. 274 Of forcing a safeguard p. 231 Of forgery P- 286 Of forgery of signature in connection with claims p. 277 Of frauds against the Government pp. 273-280 Of fraudulent enlistment - p. 197 Of good character, etc., before summary court 351 (e) Of giving intelligence to the enemy p. 235 Of giving parole or countersign different from that received p. 230 Of harboring or protecting the enemy p. 234 Of holding correspondence with the enemy p. 235 Of improper use of countersign p. 230 Of inducing abandonment or delivery up of command p. 227 Of inducing misbehavior before the enemy p. 227 ( )t insubordinate conduct toward noncommissioned officer p. 211 Of intimidation, etc., of persons bringing provisions to camp, etc p. 2-14 Of joining in a mutiny p. 21 4 Of larceny pp. 257-262 Of laying of duty or imposition by commanding officer upon the bringing of \ ictuals, etc., into fort, camp, etc p. 2 13 Of making, etc., false writings or other papers in connection with claims. . p. 276 Of making known parole or countersign p. 230 Of making or delivering receipt without having knowledge that it is true . . p. 2 78 Of manslaughter P- - 54 Of mayhem p. 254 Of misbehavior before enemy p. 226 Of misbehavior of sentinel p. 242 < tf murder P- 251 Of mutiny - P- 213 Of neglect to secure captured public property for public sen-ice p 232 Of occasioning false alarms p. 228 Of offense undergeneral article (A. W. 96) pp. - Of perjury pp. 264-266 Of personal interest of commanding officer in sale of provisions p. 243 Of persuading another to desert p 203 Of | t causing to be presented for approval or payment a false or fraudulent claim < >i previous convictions Of purchase or receipt oi military prop cty in pledge p. 280 Of quarrel, fray, or disorder p. 217 Of (putting post to plunder or pillage pe pp. 251-252 Of receiving in pledge military property p. -' M > Of refusal or omission by commanding officer to see reparation made for 1 damage done to property by person! in military sen ice p. 246 Of refusal to aid civil authorities La apprehending accua d person p. 224 Of refusal to deliver accused persons to civil authorities p. 224 -172 IN.'KX. IRpfomnrps nrp lo pnrofmphs, exrvpt when pagse an Indicated in ih.> totter " P" preeediag Uie number, re indicated bj thelettere"A. w . preceding the number.) Proof— Continued. Par. Of refusal to receive and keep prisoners p. 220 ( >f releasing prisoner wil a ithority p. 222 Of relies ing or aiding enemy p "" ! ter by officer p. 204 ■ ox depredation p. 246 pp. oi military property p. 239 '. - p. 2 ! 3 ■ i,.. I being bund drunk on posl - -- p. 242 itinel being found sleeping on post p. 242 I atinel lea\ ing posl before being relieved p. 242 unefully abandoning rnrnmarwl p. 227 Of shamefullj delivering up a command to the eaemj p. 226 Of striking noncon fficar p. 212 Of striking superior officer p. 209 Of subordinates compelling commander to surrender or abandon command, p. 220 Of suffering loss, spoliation, damage, or wrongful disposition of military propert y '- - - - p. 237 Of threatening, drawing weapon upon, or offering violence to oilicer or aoni i officer ordering person, into arresl or confinement p. 217 Of unlawful enlistmenl by officer p. 198 Of unlawful muster-in by officer p. 198 (M using provoking or reproachful speeches or gestures p. 247 Of willfully destroying property p. 246 Of willfully disobej ing superior oilicer p. 210 Of wilful or negligent injury to, or loss of, military property p. 239 Of wrongful appropriation of captured public property p. 232 Property: ublic property taken from enemy 429; pp. 342-343; A. W. 70 Dealing in captured or abandoned 430; A.. W. 80 Failin captured public property 429; A. W. 70 Injury to, redress Eor 481 Misappropriating captured public properly 479; A. W. 70 Public nred, to be secured for public service 429; A. W. 70 Unlawful taking | larceny I of pp. 267 262 Waste or unlawful disposition of military property issued to soldiers 7! (c), 281,299, 134; p. 344; A. W. si Willful destruction of, by persons subject to military law 439; A. W. 89 i or negligeni lossol 281, 133; p. 344; A. W. 83 Mini!, members of court-martial as witnesses for 120. 131 (a) i tor: Defined 17,22 May doI appoinl general or Bpecial court-martial to try accused 14,21 one: [ntimid ition, etc., of persons bringing, to camp, etc 438; A. W. 88 Sale of, persona] interesl of commanding officer in 437; A. W. 87 iking speed aed p. '_• 17; A. W. 90 Provosl court, concurrenl jurisdiction with court-martial 2 3,45; A. W. L6 motions of 3 ( a ) Provo mi; bal: Duty ad keep prisoners 55;A.W.71 Refusal to receh e and keep prisoners 421; A. W. 71 INDEX. 473 [References are to para.sraphs, except where pages are indicated by the letter " P" preceding the number; and Articles of War are indicated by th<> letters "A. w." preceding the number.) Par. Public trial, when proper 92 Publication: Of court-martial orders 100 missal of officer foT cowardice or fraud 347; A. W. 44 Of proceedings of court of inquiry 472 Of sentence, effect of 387 Of sentence, power of reviewing officer to modify before 387 Punishment: Adaptation of, to best interests of service 342 By branding, prohibited 344 By confinement at hard labor 322, 343 By confinement in a penitentiary 337 -339 By confinement to limits of post or reservation 319 By confinement, when lawful 337-339, 34 1 . 396- 399 : A . W. 42 By death 303 By detention of pay 328, 343 By disciplinary power 333-336 By dishonorable discharge 343 By dismissal 308. 312 By fine, distinguished from forfeiture 317 . By flogging, prohibited 344 By forfeiture of pay 343 By hard labor without confinement 323 1 ty marking, prohibited : 344 iprimand 318 By tattooing, prohibited 344 ( bwardice or fraud 347; A. W. 44 3 of 343 Confinement without hard labor not to be imposed 311 n Death penalty, when authorized 346 Death sentence, when lawful 40-41. 90,295, 308, 34G, 378. 391; A. W. 93 Discretionary 309 Dishonorable discharge 320 Dishonorable discharge, suspension of sentence 321 Effect of previous convictions on '. 307 Equivalents, table of 349; p. L67 Executive order, articles 5 and 8 in force during time of war (Ops. J. A. G. 20, 1918.) 349 Executive order, not in force during time of war except articles 5 and 8. (Ops. J. A.. G. 250.4; Feb. 20, 1918) 349 Executive order prescribing maximum limits of punishment 349 For contempt by court of inquiry 460 For cowardice 347 For desertion 340 Forfeiture distinguished from fine :;| 7 Forfeiture of pay and allowances 324 Forfeiture of pay by soldier docs nol include Class A allotment under War "Risk I : :t and whenever practicable should ool include CI allotment :; 'l For felonies :;:;7 ;:;s For fraud For offences committed before Articles of War became effective 4b7 4 74 IN; n indli ated by the letter " P" preceding the number, and Arti ilee ol War arc indicated i>> the letters •■ \. w '.■■ preceding toe number.) Punishmenl Continued. i' ; ' r - ral Limitations upon maximum 349; P- |li7 .when 309 d by genera] court-martial 40 I courts-martial 42 imposed by summary courts-martial 44; A. V. . it .■,1 upon finding of guilty of several charges, charging sam fense.. 66 I ;,,,;,, f 40, 12, 1 1. 306 307, 309-328, 330-:;:'.::.:'. 10- 349, 400; pp. 369 370,375 377; A.. \ I pay. paymenl of reward, for return of soldier absenl without leave. 329 ' 313 Mandatory . 309 Maximum, adniinistrative rules under Executive order prescribing.. 349; p. 169 Maximum, ae a Eactor in determining proper court-martial for trial 78 Maximum, equivalents of 349 Maximum limit of, for noncommissioned officers 349; ]>. Ki7 Maximum limits 309,348 Mitigation of, defined 3S0 Mitigation i f, extends to unexecuted portions of sentence only 402 ts-martial for inattention to dutj 86 Of Qoncommissioned officers 349; P- 167 ' kinds of 310 Of soldiers, various kinds of 31 1 Lnsl military law 4(M2, 44, 90, 295, 306-328, 330 333, 337 349,378,391,396 399, 100; pp. < 377; A. W. -11 45 Office by confinement in penitentiary 338 of War I >epartment regarding 340 343 IV Lous convicti us, effeel upon punishment 349; p. 168 Prison discipline 345 Prohibited by custom and regulation ■"''• , Prohibited bj statute 344 Prohibition of certain kinds of 344 345; A. W. 41 Reduction in rank 343 Reduction of non< ommissioned officers •'-' Relativ of Remission of extends to unexecuted portions of sentence only 402 ration of prisoners > "■ general prisoners - 330 mc immand 314,315 Suspension from duty 316 ion Eromrani 3 1 4 Punitive articles PP- '"'; 286 Pure! i!l; P' 28 °i A - Wl !M ', defined P- 216 Quarrels power of officers and uoncommis ioned officers to stop -17, 52, 11!'; p. 340; \. W. 68 Quartermaster Co] p Field derki . subjeel to Articles of War _ 4(A) ,1 Unit, nanl in, not usuallj detailed as member of court-martial 6 Quittingguard 66,149,281,283 284, 112; p. 339; A. W. 61 Quitting posl l" ] 'I under or pillage 425; p. 228; A. W. 75 • * INDEX. 475 [References are lo paragraphs, except where i the letter "P" preceding the number, and Articles of War are indicated by the tetters " A. w." preceding the number.] Hank: Par. Change in, how pleaded 74 (ife) Determined by rules laid down in (A. W. L19) L2(6); A. \V. II!) Loss of, by sentence 313 Of appointing authority of general court-martial 19 Pi' appointing authority of special court martial 23 Of members of court determines Beating 83 Of members of court of inquiry 456 Of narrator does not make hearsay statements admissible 221 Precedence among regulars, militia, and volunteers 10-12; A. \Y. 119 Reduction in 313 Rules of evidence to be applied to witness irrespective of 200 Suspension from, effect of 314 Rape 35, 40n, 346, 378, 442; p. 346; A. W. 92 Assault with intent to commit p. 270 Commission of crime 4 12; A. W. 92 Defined p. 251 Punishment for 40 (n) ; A. W. 92 Real evidence, exhibition of body of accused 236 Reasonable doubt: Conviction of accused , facts must warrant guilt beyond 296 Defined 288 Effect of prima facie evidence in removing 279 Receipt: Delivery of less than amount called for by 44 4; p. 277; A. W. 94 Making or delivering, without knowledge that it is true. . . 444; p. 278; A. YV. 94 Recollection, refreshing, by memoranda 241,243 Recommendation: For clemency by court-martial or member thereof 332 For suspension of dishonorable discharge 321 Record : 1 binding of 362 By trial judge advocate of detailed \^<-i^ of case pp. it ion of by appointing authority 367 Disposition of by trial judge advocate 366 ( If action by appointing authority 370 Of court-martial as to absence of member 85 Of court-martial, authentication of 95 Of court-martial, direct examination, how recorded 250 Of court-martial, disposition of Of court-martial, effect of irregularities :' !. 74(c), 101. 165; A. W. 37 Of court-martial, findings of, by reporter 305 Of courts-martial, loss of before reviewing authority has acted upon 368 Of court-martial on plea of guilty, requisites of 154 Of court-martial, questions and Lng.... 249 Of court-martial, reasons for sentence may be spread upon 331 Of court-martial, revision of courts-martial trials 36 I Of court-martial; sentence of, by reporter i5 Of court-martial, signature of officer pn i'< rring charges to be copied into. . 64 Of court-martial to note withdrawal or absence of judge advocate or assistant judge advocate 107 476 iNM.x. , except where p tedbj the letter "P" preceding the number* I rttcleeol \\':ir:ire Indicated by the letters "JL W."pr< umber.] I ontinued. Par. irt-martial, to show introduction of depositions 267 ( H court-martial, transmission of, to appointing authority 336 irl martial, typewritten, of pro ime limit for completion of . ]IG Of court-maxtial, typewritten, of pr urniahed 1 1 G ( h court of inquiry p. 292 Of court of inquiry , aduussion 175 Of court of inquiry, authenticatiori of 1 7:3 irt of inquiry, cCispi 474 ( )i' disciplinary punishment awarded by commander 334 Of former trial to prove conviction or acquittal 274 leral court-martial 95, lor, 1". 00; pp. 357 384,375; A. W. 33,35 neraJ court-martial, adjournmenl p. 355 mi-in:irtial, authentication 354 < )i general court-martial, carbon copies to be prepared 117 • I neral court-martial, contents 357 I i ourt-martial, correction of 3G4 Of general com fc-martial, index required 357(62) Of genera] court-martial on plea of guilty, requisites of 154 ((/) aeral court-martial, party entitled to copy 117,354 357; A. W. 1 11 martial, preparation of 355 Of genera] court-martial, revision of proceedings, form of pp. ( >f i q( raJ court-martial sentence to confinemenl in penitentiary . authority appear 339 Of general court-martial separate record for each case tried before 356 da 1 a lurts-man ial 154 (f 304 scial court-martial, form and substance of 358 Lai court-martial, form of pp. 965-366 i.il court-martial, index, not required cial court-martial, number of copies 359 Of summary courts-martial 358 363,366 368, 100; pp.365 367,376 377; A. W. 34,36 ( >f summary court-martial, form and substance of 303 < if summary court, form of p. 367 rt-martial, return of. for error, omission, etc 365 marj court-martial, transmission of, to appointing authority ler: court of inquiry 4G5 A < I in ini- 1 1 ;ii i< .ii of oath by, court of inquiry 466 A ppointment of, f<>r court of inquiry 454 its, Articles of War to be read to 282; A. W. 110 For injury to person 481 For injury to property 181 Fur wrong to person or property km, 481, 485; A. W. 105, 121 For wrongs to officers or soldiers 485 Of wrongs, duty of comnianding officer 439, 181; A. W. 89 INDEX. 477 [References are to paragraphs, except where pages are Indicated by the letter " P " preceding the number, end Articles of War are indicated bj L W." preceding the number.] Par. Reduction to ranks, sentence of 327 Regimental commanders, as appointing authority of summary court-martial 28 I'" imental courts-martial abolished 5n Regular Army: I 'omposition Officers and soldiers subject to military law 4 (a) Release: From arrest does not prevent trial 77; A. W. 70 < )f accused upon acquittal or conviction, when proper 332 n ( If prisoner without pro)>er authority 57, 423; A. W. 7:; Relevancy, of evidence, defined 202 Relieving enemy or corresponding with 41, 378, 431, p. 343: A. \\ . Si Remission: i ences 381 I If sentence, effect of, at time of approval 383 ( If suspended sentence of dishonorable discharge 403 Removal of causes: Civil suits, when removable 484 t Criminal prosecutions, when removable 484 Reparation, refusal or omission by commanding officer to make 439; A. W. 89 Repeal of Articles of War shall not affect prior offenses 487 Report: Official. Set Evidence, privileged communication. Of inquesl , form of p. 409 Of judge ah ocate of acquittal or conviction of soldier 332 a Of judge advocates to appointing authority 104 Of prisoners received 55, 422 ; p. 341; A. W. 72 Of receipt of captured or abandoned propertv, failure or delay in making. . 430, A. W. 80 Weekly, showing charges not returned to appointing authority p. 356 Reporter: Appointment of 112-11!), 135-136, 457; A. W. 115 Oath to be administered t" '■''. 132-136,466; A. W. 19 ( If court-martial, compensation of 113 • if court-martial decisions of Judge Advocate General with reference to pay of H3 n Of court-martial, detail of enlisted m&u toi 115 Of court -martial, vouchers for pay of 114 Seat in court s -' Voucher for pay of personal sen ices, form of p. 405 When authorized - 1 - 1 - Reprimand. punishment by 318 Reproachful: Defined P- 247 Speeches oi ' w - !, ° Res gestae, denned Retainers, to camp, serving with Army 4,9 10,13,1 ■ . \\ . 2 Retired enlisted men. Set I '.n listed men. Retired list, military witnesses on, attendance of Bel Lred officers. See « ifficers. Return, to writ of habeas corpus 47 ' s 480| pp. 38 478 INDEX. excepl where pages are Indicated by the letter "P" pi umber, and Arti. lea ol Wai u • the Dumber.] Par. Returns, fab* ntorender i p. 338; A. W. 67 . I.\ judge advocate general before execution of sentence of death or dismissal PP- 41 1-414 mthoritj : i Appointing authority. Absence of, action by officer commanding for the i Lme being 369 Action by, must be in person 376 Action by, when s edto another departmenl 375 Action on acquittal by 371 Action "ii sustained Bpecial plea i<» jurisdiction or in l>ar 153(6) Approval of Lesser included offense - 377(a) Approval of sentence by 372 Approval of sentence, form of 373 Approval of sentence* in whole or in part 377 Approval or disapproval of acquittal 369 Approval or disapproval of sentence by 369 Change of place of confinement by 389 ration of, in designating place of confinement 399 I action by 401 nation of place of confinement by 394 1 -.- -■ 369 Disapproval of sentence by 372 Disapproval of sentence of conviction of d< ect 388 Disposition ol record of trial by 367 Duty of, where court -martial acts improperly in imposing sentence on finding of guilty under several ohar.e, f. »r -unc ct'mnse 66 of remission of sentence at time of approval Form for action by :; ' ,:,; IT- :;:1 373 Function of, can nol be delegated 376 t included officer, approval of power to change sentence 390 Power to add to sentences 3S5 Power to approve loss of files as punishment 390 Power to ch of confinement 389 r to consider prior confinement of accused 401 Record of acl Lon by : " ,) Record of trial to be forwarded to :;,; 6 Igation by court of inquiry i! of record of summary court to 351 (i) Revi( modif; jenteni befon publication 387 Revisi Accused, pn actings in 352 ,,n of inquiry of h ■ • - '■ ' martial, procedure on 352 •dure on 352 rtial, procedure on 353 Effect of presence of new member is in : '-' Revi ion proceedin] - . form of record of pp. 363-364 Reward: r, stoppage of pay 329 ant of for deserter aol proof of intent L ' sl Riot, defined P - i,,; A - w - 89 INDEX. 479 [References are to paragraphs, except where pages are indicated by the letter " P" preceding the number, and Articles of War are indicated by the letters " A. W." preceding the number.] Robbery : Par. Assault with intent to rob p. 270 Commission of offense 35, 149, 280, 285, 443; p. 346; A. \Y. 93 Defined p. 262 Trial for, statutes of limitations 149 Roll-call of members of court, how taken 84 Routine duties, defined 66 Rules of evidence. See Evidence. Safeguard : Defined p. 231 Forcing of 41, 428; A. W. 78 Sale: As evidence of larceny 74 (o) Of military property 444, p. 278; A. W. 94 Of provisions, personal interest of commanding officer in 437; A. W. 87 Of stolen public property, how charged 74 (o) Sanitary train, when a detachment for disciplinary purposes 28 Saving clause, repeal of Articles of War 487 Scandal to the service, how pleaded 74 (m) Secondary evidence, when admissible 237 Second lieutenant, Quartermaster Corps, not usually detailed as member of court-martial 6 Second trial see also Double jeopardy 149 (3) ; A. W. 40 Secrecy : As to votes and deliberations of members, courts-martial 91 As to votes and deliberations of members, courts of inquiry ; 470 Sedition 41, 417, p. 340; A. W. 66 Defined P- 213 Failure to give information ol 41, 418; A. W. 67 Failure to suppress 41, 418; A. W. 67 Segregation, of general prisoners 341, 396-399 Self-contradiction. -See Evidence; Witnesses. Self-crimination: Compulsory, prohibited 233 Physical examination, requiring accused to submit to 236 (a-c) Privilege against is personal 234 Procedure where alleged incriminating r j uest ion is asked 235 Rule not affected by materiality of question 233 \\ here privilege ceases 233 (b) Senteme: Action after promulgation of 401-404 Action by reviewing authority, form of 395; pp. 371-374 Adding to, unlawful 385 Adjudgment of, vote of members of court martial 308 Application for clemency, effect of 402 Approval of 869-377, pp. 371 373; A W.46, 17 Approval of, by oflicer commanding for the time being 374 Approval of, by whom 373 Approval of, in excess of legal limit, effect of 386 Approval of, form of 373 Approv.d of leaser included offense 377 (a) Approval of whole or any part of 377 (6) 53915°— 18 33 480 INDKX. [References are to par.i, ; 4 by Uw letter "E" preceding the number, urul Articles of War are indicated by tlio letters " \. W." preceding the number.] Benlence O atinued. Par - Approval of whole or pari of finding of guilty 377 (b) A] approval of, by appointing authority 369 Award of P- 355 By whal vote impoBed eath , when authorized 346 Detention of pay 328 Dishonorable discharge 320 Dishonorable discharge, can not be mitigated 382 Dishonorable discharge, suspension of 321, 393 Dismissal 15 n, 38, 42, 44, 312, 320, 378, 382, 391-30;], 103; A. W. 48, 51, 118 Dismissal, authority to suspend until pleasure of President is known 391 Dismissal, cases to be reviewed in Judge Advocate General's Office before execution of PP- «1-*12 Dismissal, confirmation of 3<8 (6) Dismissal of cadet, confirmation of 378 (c) Dismissal, procedure in cases involving PP- 413-114 Dismissal, publication of, in cases of cowardice and fraud 347; A. YV. -14 Dismissal, when exclusive 312 Effect of approval of 372 Effeel of disapproval of 372 Effect of tie vote on 90 Exceeding legal limit, effect of approval 386 Execution of 3/1 Execution of, in penitentiary 338 Forfeil ure of pay and allowances 324 Forfeiture of pay, effect on allotments under war risk insurance act 311 tor, by courts-martial PP- 369-370 General Limitations on maximum punishments 349 General officers, confirmation of 378; A. W. 48 Hard labor withoul confinement - 323 flW l lose of pay In paymenl of reward for ret urn of soldier absent without : 329 Iih leasing on review unlawful 385 Tn excess of legal limit, effeel of approval 386 Manner of approval 373 rank, effeel of 313 Maximum limits of punishment 40,42,44, 306-307, 309-328, 330-333, 340-349, 400; pp. 369-370, 375-377; A. W, 45 INDEX. 481 [References are to paragraphs, except where paws are indicated by the letter " P" precedinR the number, and Articles of War are indicated by theletturs "A. \\ . " preceding the number. J Sentence — Continued. Par. Mil igation of .- 381 Mil igation of, when permissible 382 Modification of action before publication of 387 No power in courts-mart ial to stop pay to Governmenl or individual 325 Of court-martial, effect upon jurisdiction of court-martial 38 (c) Of court-martini, interrupted by delivery to civil authorities, procedure in such cases. 35 Of court-martial, persons under, subject to military law 4 (/) Of general officer, confirmation of 378 (a) Of general prisoners 330 Of officers, various kinds of 310 Of soldiers, various kinds of 311 Pardon, mitigation or remission of 380-385, 390, 402-403; A. W . 50 Penitentiary 337-339, 341, 396-399 Penitentiary, authority for, to be shown in record 339 Power of President to commute 402 Power to confirm part of finding of guilty— lesser included offense 379 (a) Powers incident to power to confirm 379 Prescribing dishonorable discharge and confinement 394 Prohibition of certain kinds of 344-345; A. W. 41 Publication of dismissal in cases of cowardice and fraud 347; A. W. 44 Publication of, effect of 387 Punishment by fine 317 Reasons for, may be spread upon the record 331 Recommendation to clemency by court-martial, or member thereof 332 Record of, by reporter 305 Reduction of noncommissioned officers. .; 327 Remission of 381 Remission of, effect of, at time of approval 383 Suspension from command 315 Suspension from duty 316 Suspension from rank 314 Suspension from rank includes suspension from command 314 Suspension of cadet, confirmation of 378 (c) Suspension of 392, 393; p. 373; A. W. 52, 53 Suspension of, in cases of death or dismissal, till reviewed by judge advo- cate general pp. 411-412 Suspension of, of dishonorable discharge 392, 393; p. 373; A. \\ . 52 Suspension of, ot dismissal or death, until pleasure of President is known 391; p. 373; A. W. 51 Suspension of , of forfeiture or confinement 392; p. 373; A. AY. .".3 When effective 371 •Sentinel : Defined p. 242 Drunk or sleeping on post 41,281,436; p. 344; A. W. 86 Service of charges five days before trial by general court-martial 80 ice school, when a detachment for disciplinary purpose* 28 Sessions of summary court 351 (a) Shorthand, use of, authorized in taking testimony 112 482 inpkx. [References are to parnpuih . txeepl whan pagw are indicated by the letter "P" preceding the number, and Articles .,f Warm Indicated by the letters "A. \Y." precedinp the number.) Par. Silence, nol treated as confeaaioD 226 Bketchee as evidence, when admissible 246 Bleepin 41,281,436; p.344; A.W.86 Bodomj 443,446; pp.271,285; A. W. 93, 06 Assault with intent to commit P- - 71 Soldier: Sei Enlisted men. Defined 4n > 8 J A - W - 1 Soldiers' Home, inmates of, subjecl to military law.. 4(h) n 2, 9-13, 38, 74 (i); A. \\ .2 Special court-martial. Set Courts-martial and Courts-martial, special. ; inspection reports, Inspector General's Department. See Privileged communications. 8p< «ial orders, how proved 289 Special pleas. See Court-martial, pleas. ation: Defined G1 Finding of guilty of part of 299 Form of, against general prisoner 74 (j) n Form of, under Articles of War pp. 335-352A How stated 74 ( b ) Must allege a single offense 74 (c) Numbering of _ ' - Procedure where several specifications under one Article of War 72 Relation of, to charge 61,74 (b) Speeches, reproachful or provoking 440; A. W. 90 Spoil: By persons subject to military law 439; A. \\ . 89 Defined P- 245 Spy: Defined P- 236 Punishment of 40 n, 41; A. W. 82 Suspicion persons around camps, etc 432; A. W. 82 Triable by general court-martial.. 13,39-41,308,378,432; pp. 343-344; A.W.82 Squadron, included in term "battalion" in A.W.I 4 n State court : Authority to inquire into legality of restraint by United States 477 Return to writ of habeas corpus issued by 478; pp. 390,392 Statement of accused, contents and scope of 290 Statement of Ben ice: Examination by court, time for 271 i character, use by defense as 271 secrets. See Privileged communications. Statutes of limital i Forva triable by courts-martial 149 (1,2); A. W. 39 Must be pleaded 149(3$); A.W.39 Not applicable to trial by court of inquiry 451 President of court to advise an-us^l in certain cases of right to plead... 149 (3ft) Stoppage of pay. See Pay. Striking superior officer 41,) 5 A - w - 64 Subordinates, compelling commander to surrender or abandon command 426; A. W. 76 INDEX. 483 [References are to paragraphs, except where pages are indicated by the letter " P " preceding the number, and Articles of War are indicated by the letters "A. W." preceding the number.] Subpoena: p ar . Fees for service of 101 Form of p. 383 Service of, civilian witness 100 Subpoena duces tecum, to obtain books, documents, etc., of civilian witness. . 166 Substitution of general for specific article 300 Substitutions, power to find guilty with exceptions and. See Exceptions and substitutions. Summary conrt-martial. See Courts-martial and Courts-martial, summary. Superior oflicer: Aseaulting or willfully disobeying 41. 74 (7/), 286, 41o; p. 339; A. VY. (14 Defined * pp. 207, 208 Disrespect toward 414; A . W . 63 Surgical operation, refusal to submit to 68 Surrender of command to enemy 41, 425; p. 341; A. W. 75 Surrender of command to enemy, subordinates compelling 41, 426; p. 342; A. W. 76 Suspension : From command 315 From duty 316 From rank 314 From rank, effect of, upon eligibility of officer for membership in court- martial 9 (a) Of cadet, confirmation of sentence of 378 (c) Of sentence. See Sentence. Tattooing, punishment by. prohibited 344-345; A. W. 41 Telegrams, not privileged communications 229 Territorial departments; copies of records as evidence authenticated as official copy 238 Territorial divisions, copies of records as evidence authenticated as official copy . 238 Testimonial evidence: Defined 202, 207 When hearsay 207 Testimony, false or mistaken p. 264 Threats toward an officer or noncommissioned officer 416, 419; pp. 211, 217; A. W. 65, 68 Time: For holding sessions of courts-martial, how determined 81 How pleaded 7 1-/1 Transcribing of record of proceedingsof court-martial, time limit (or completing. 116 Transfer of accused to another department, action by reviewing authority 375 Travel allowances: Witnesses, how payable I!»:i Witnesses, payment for return journey 186 Traveling expenses, form of voucher for reimbursement of p. 401 Treason, number of witnesses required to sustain conviction of Trespass, defined p. 257 Trial: See also Courts-martial, arraignment; Pleas; Eb Eusal to plead; Motion- Accused, freedom of expression at 201 Adjournment at close of p. 355 Adjournment during p. 355 4g4 INI'KX. [Uefereuees are to paragraphs, except where pages are indicated by the letter " P " preceding the number, and Articles Ol Wat ■« Indicated by Uteletten "A. \\." preceding the number.) Trial— Continued. ?<"• Arguments to court 293 Competency of witnesses, objection to, when made 247 Concluding incidents of 290-332 Conduct of dimd examination 250 Control of court over conduct of 249 Cross-examination, scope of 251 Defined ^(3) Deposition, how introduced -''• 268 I>. tail matters to be attended to after P- 355 Duty of judge advocate to expedite l°3 ination of witnesses apart from each other •. 24G nation of witnesses by court 253 Examination of witnesses, met hod of HI Findings of court-martial 294-305 Finding of guilty - 299 Freedom of judge advocate in conducting 100 Judge advocates, suggestions for pp. 353-356 og questions, 'rules as to 254 Loss of records of before reviewing authority ha* acted upon 368 Objection to competency of witnesses, when made 247 ( )] .filing statement by counsel and judge advocate 197 ( >rdcr of examination of witnesses 249 Preparation for, as to admissibility of evidence 199 Preparation for by judge advocate and counsel for accused 196 Preparation for, time allowed accused 80 Procedure, as to precedents and authorities on evidence 199 Procedure, as to statement of service 271 Procedure for proving contradictory statements out of court 262 Procedure in introducing deposition 267, 268 Procedure to show self-contradiction -' ,!) Procedure where vi Ltness refuses to answer 235 Procedure where writings are introduced in evidence 237 Protection afforded v. Ltnesses 201 Questions and answers, form of recording 249 Recalled witness bo be reminded that he has been sworn 255 Record of, by general court-martial and revision of proceedings, form f mmm pp. 357-364 ope of. 252 Redirect examination, scope of 252 to answer, procedure 235 to use memoranda to refresh recollection 241,243 Rules as to uniform to be worn, as to Beating of court, roll call, etc Second for same offense 11! ' (3)» A. W. 40 i ria I required 77; A. W. . Statemenl of accused 290 forjudge advocates PP- 353-356 Tim- for - ", SO: A. W.JO Use of admissions of accused by court 292 When public 92 Within five days alter service of charges, when forbidden 80 Within ten days after arrest " 7 ; A - w - 70 Tri.,1. defined 149 < 3c > INDEX. 485 [References are to paragraphs, except where pages are Indicated by the letter "P" preceding (he nti nilior, and Articles of War are indicated by the letters "A. \v." preceding the Dumber.] Par. Troops, certain Articles of War to be read to 282; A. W. Ill) Troop, included in term ' 'company "' in A . \V. I In Twice in jeopardy. See Double jeopardy. Unclassified offenses, general article 446; A. W. 96 Uniform to be worn by members of court-martial, judge advocate, and accused. 82 United States courts, effect of trial in, for .same act 149 (3d); p. y the letter.- ■■ \. w." preceding the number.] Par. Washington, fees and mileage, civilian witnesses in I ■ Waste: By persons Bubjed to military law 430; A. \V. 89 1 p. 245 Watchword, disclosure Of 41, 4l'7; p. mil'; A. W. 77 Weap is, defined p. 284 Westt esand mileage of civilian witnesses in 1S5 (a) Wife. Sa Husband and wife. Willful, defined p. 197 Willi ul disobedience, defined pp. 209, 211 Willful injury, defined p. 239 -ses: - Civilians; Evidence. Accused as witness 214 Accused musl be confronted with, when 185; A. W. 25 Advance notice to 162 Application of rules of evidence irrespective of rank of 200 Attachments to compel attendance of 159; A. W. 22 Attendance of military, how secured 163 Attendance of, summary court 351 (c) Bias or interest as affecting competency or credibility 213 Capital cases, accused must be confronted with, in 165; A. W. 25 Civilian, contents of voucher for payment of 187 Civilian, form of subpoena summoning p. 383 Civilian in confinement, obtaining testimony of 167 Civilian in Government employ, transportation in kind, etc 184 Civilian, in several trials on same day 188 Civilian not in Government employ, fees and mileage 185, 186 Civilian, procedure to obtain books, documents, etc 166 Civilian, procedure to secure attendance of 164 Civilian, procedure where alleged incriminating question is asked 235 Civilian, service of subpoenas on 160 Competency of 209 Competency of accused when testifying againsl an accomplice 217 Comp - affecting res gestae statements 223 Competency of, how determined 198, 199 Li y of husband and wife to testify against each other in certain • in inns 228 Competency <>f mental or moral defectives 211, 212 Competency of, not affected by rank 200 Competency of, objection to, when made 247 Competency of, rules as to 208-214,217,218 Contempts — Authority to punish 17 Direct and constructive 173 (c) -us who may be punished 173 (b) ■ 'lure for punishment of 173 (d) Corroboration of single, offenses requiring 224, 225, 248 Courts of inquiry 458-160,466,467; A. W. 101 Credibility as affected by prejudice, bias, relationship 260 Credibility as affected by self-contradiction 259 INDEX. 487 [References are to paragraphs, except where pages are indicated by the letter " P " preceding the number, and Articles of War are indicated by the letters "A. W." preceding the number.) Witnesses— Continued. p ar . Credibility of accused as a 2G1 Credibility of, conviction of crime 258 Credibility of, how dei ermined 256 Credibility of, impeachable irrespective of rank 200 Credibility of, proof of character by general reputation 257 Credibility of, proof of contradictory statements out of court 262 Credibility of, self-contradiction, rule as to 259 Cross-examination of 251 Depositions. See Depositions. Direct examination of 250 Employment of experts 192 Enlisted men, active, travel allowances 183 Enlisted men, retired, mileage, and per diem 183 Examination of 246-255 Examination of, court of inquiry 458-460, 467 Examined apart from each other 246 Expert, defined 218 Experts, employment of 192 Experts, procedure to obtain 192 For accused, summoned by judge advocate 161 Form of habeas corpus for pp. 389-390 For prosecution ineligible as member of court-martial, general or special. . 6 For prosecution may be summary court-martial when only officer present with a command 6 General capacity of 210 Held under warrant of attachment, procedure on habeas corpus issuing out of State court 47S (a) Hostile, may be examined by leading questions 254 How questioned during trial Ill Impeachment of. by evidence of reputation 257 Impeachment of one's own 262£ Incriminating questions prohibited 233-236; A. W. 21 Inquests 4S3; p. 409; A. W. 113 Interest or bias as affecting competency or credibility 213 Investigation of frauds, etc. . administration of oaths 138 (a) Leading questions, grounds for 254 (1-5) Members of court-martial as. for the defense 131 (b) Members of courts-martial as. for prosecution 129, 131 (a); A . W. 8, 9 Members of courts-martial as, when accused pleads guilty 131 (d) Members of court-martial as, when called by court 131 (e) Mental incapacity of 212 Mileage o£ Set Mileage. Moral incupacit y of 211 Number required to sustain conviction 248 Number required to sustain conviction of perjury or treason 248 Oath, additional ceremony to bind conscience of 132 i) Oath, authority to administer to 91,132-138; A. \\ . J9 Oath, by whom administered in certain cases oath, form of 134 (a); A. W. 19 Oath, in court of inquiry 466 488 antEZ. .to paragraphs, except where pagee are indicated by the I.-tt.-r "P" prpwliiiR the number, •nd Article of War are indicated by the letter! "A. W." preceding the number.] Witnesses Continued. Par - action to competency of, where evidence taken by deposition, when made ** otiiccrs. active, travel allowances 183 ired, mileage and per diem 183 ( frder ol ezaminatioii ' Philippine [slands, punishment for refusal to appear or testify 171 Power of court of inquiry to summon and examine 158 Privileged communications between husband and wife 213 lure to obtain t ks, documents, or papers L66 ure where accused tails to make Btatemenl 215 jtoohtain L59 L69, L72; pp. 383-890; A. W. 22 Procuring attendance of, if civilians pp. 384-385 [on ..:'. Erom improper questions f 201 Puni hmenl tor refusal to appear or testify 170,171; A. W. 23 Recalled to be reminded thai they have been sworn 255 Refusal i" answer, how treated - 235 Refusal to appear or testify when summoned before court of inquiry 459 I to testify. .. 168, L70 L72, L83-188, L92, 232, 235; pp. 383-390; A. W. 23 Retired military, attendance of 163 hi hi of members of court to examine 100 Self-erimination by compulsory examination of person 236 Self-crimination, privilege against personal 234 State's evidence, effeel of turning -'16 Summoning of, necessary Jl »l Tender of fees preliminary to prosecution 170, 172 Testimonial knowledge, rule as to 220 Testimony at former trial, proof of 275 Use of one joint accused by prosecution 156 Vouchers for civilian, contents 187 Vouchers for compensation of civilian, form of p. 397 Vouchers, lost ' ! J° Vouchers to be delivered to 189 Warrant of attachment— < ircumstances requiring issue of rare 159, 168 Force, use of necessary in execution of 168 Habeas corpus proceeding in connection with, Federal courts 169 (a) Habeas corpus proceedings in connection with, state courts 169 (6) Papers to accompany, to make return to writ of habeas corpus 168 (a-e) Words and phrases. Set Definitions. Writings. Set Evidence, documentary. Written instruments, how pleaded M (t) Wrongs Buffered by officers and soldiers, redress of 485; A. W. 121 Wynn Lvilian witnesses in 185 (c) ADDITIONAL COPIES DF THIS PUBLICATION MAY HE PROCURED FROM THE SUPERINTENDENT OF DOCUMENTS GOVERNMENT PRINTING OFFICE WASHINGTON, D. C. AT 65 CENTS PER COPY UNIVERSITY OF CALIFORNIA LIBRA KY BERKELEY THIS BOOK IS DTjT^ THE LAST DATE STAMPED BELOW Books not r,.««r„o,J on tim. «J .U«g 50C P« ' ' f r MN U d*y. Hooks not in ||i||tinn ^i«2»j|Priod. -, MAY 9 1519 IMS* 6 MAY 31 1919 SEP 1 191V rtt Vb 191* jmixo #m 50m-7,'16 YC 36410