GIFT OF 1 Digitized by the Internet Archive in 2007 with funding from IVIicros^oft Corporation http://www.archive.org/details/courtsmartialOOunitrich A MANUAL FOR COURTS-MARTIAL COURTS OF iNQumy AND OF OTHER PROCEDURE UNDER MILITARY LAW REVISED IN THE JUDGE ADVOCATE GENERAL'S OFFICE AND PUBLISHED BY AUTHORITY OF THE SECRETARY OF WAR CORRECTED TO APRIL 15, 1917 (CHANGES, NO. 1) WASHINGTON GOVERNMENT PRINTING OFFICE 1917 ^^3 ^:f^ Wab Depaetment, Document No. 560. Office of the Judge Advocate General. War Department, Office of the Chief of Staff, 'Washington^' Novewher W^ 1916. The Manual for Courts-Martial, Courts of Inquiry, and of other Procedure under Military Law, 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, approved June 3, 1916. The provisions of this Manual will be in force and effect on and after March 1, 1917. By order of the Secretary of War : H. L. Scott, Major General^ Chief of Staff. UL 3G1339 TABLE OF CONTENTS. Page. Introduction ix Chapter. I. Military jurisdiction 1 Section I. Source and kinds of military jurisdiction 1 Section II. Exercise of military jurisdiction 2 Section III. Persons subject to military law ^ 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 coiu*ts-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-martial — 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 G4 Chapter IX. Courts-martial — Procedure during trial 65 Section I. Arraignment 65 Sectionll. Pleas..... . 66 Section III. Refusal to plead 73 Section IV. Motions • 74 Chapter X. Courts-martial — ^Witnesses and depositions • 77 Section I. Attendance of witnesses 78 Section II. Depositions 84 Section III. Fees, mileage, and expenses of witnesses 88 V VI CONTENTS. Page. Chapter XI. Courts-martial — Evidence 91 Section I. Introductory provisions 93 Section II. Circumstantial evidence 99 Section III. Testimonial evidence 101 Section IV. Documents 119 Section V. Examination of witnesses 122 Section VI. Credibility of witnesses 125 Section VII. Depositions and forpier testimony 127 Section VIII. Pr/ssumptions 130 Section IX. Judicial notice 137 Chapter XII. Courts-martial — Concluding incidents of the trial 139 Section I. Statements and arguments 140 Section II. Findings Ill Section III. Previous convictions 144 Section IV. Sentences , 145 Chapter XIII. Courts-martial — Punishments 151 Section I. Disciplinary power of commanding officer 151 Section II. Confinement in a penitentiary 153 Section III. War Department policy regarding punishments 156 Section IV. Prohibited punishments 160 Section V. Death — Cowardice — Fraud 160 Section VI. Maximum limits 161 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 : 172 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 180 Chapter XVI. Courts-martial — ^Action by appointing or superior authority 181 Section I. Action on the proceedings 182 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 206 Section IV. Arrest — Confinement 218 Section V. War offenses 225 Section VI. Miscellaneous crimes and offenses 237 Chapter XVIII. Courts of inquiry 287 Section I. Constitution 287 Section II. Jurisdiction 288 Section III. Composition 288 Section IV. Powers 289 Section V. Procedure , 290 Section VI. Records - 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. Mscellaneous and transitory provisions 297 Section I. Miscellaneous provisions 297 Section II. Transitory provision 301 Appendices: 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 t 373 (6) Special court-martial 374 12. Form for interrogatories and deposition 377 13. Subpoena 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): Civilian witness in Government employ 399 18. Voucher (Form 339): Personal services, reporter 403 19. Report of inquest 407 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 1916. 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 Rhode Island and the Congress of New Hampshire (idem, vol. 2, pp. 565, 1153, 1180), we come (a) to the first American articles enacted by the Second Continental Congress June 30, 1775, and copied largely from the British Code of 1765 and the Massachusetts Code; (h) 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 Code of 1806 was, in effect, a reenactment of the articles in force during and immediately following the period of the Revolutionary War, with only such 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 MANUAL FOR COURTS-MARTIAL. new articles added. All of these new articles and amendments were gathered into the restatement of the articles which appears in the Revised Statutes of 1874, making a code of 128 articles, with the additional provision relating to spies. Between that year and 1912, when this revision was submitted to Congress, the more important amendments have been the summary court and maximum punishment acts of 1890 ; the repeal of articles 80 and 110 in 1898 ; the repeal of article 123 and the amendment of articles 122 and 124 in 1910. DEFECTS OF ARTICLES PRIOR TO 1916 REVISION. The more serious defects of the Code of 1874 were those incident to its development by compilation from a now 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 1874 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 that the latter code was unscientific in its arrangement and contained many provisions either wholly obsolete or illy adapted to present service conditions. We may cite as examples illustrating its archaic character the following of its provisions: The fifty-fourth and fifty-fifth articles prohibited any kind of riot to the disquieting of " citizens of the United States," and article 59 made mandatory the turning over to a civil 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 deceased 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 cases 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. IMPORTANT CHANGES IN REVISION. The limits assignable to this introduction permit only the follow- ing brief summary of the more important changes introduced by the revised articles: 1. Certain provisions of the Revised Statutes and of the Statutes at Large in the nature of Articles of War, and proper for this reason to be incorporated in a military code, are reenacted in their proper 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 articles 2, 4, 7, 8, 22, 23, 25, 30, 34, 36, 37, 38, 42, 45, 48, 52, 80, 82, 106, 107, 108, 112, 114, 117, 118, and 119. 2. Articles 1, 10, 11, 36, 37, 52, 53, 76, 87, and 101 of the Code of 1874, either wholly obsolete or embracing only matters properly within the field of Army Kegulations, 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 be found in revised article 48, which reenacts with modifications the substantial provisions of four articles of the Code of 1874 and one section of the Revised Statutes, all relating to the confirmation of sentences of courts-martial; and in revised article 61, which 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 for 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 sum- mary court, with adequate power to impose disciplinary punishments but without the power to adjudge dishonorable discharge, is provided Xn MANUAL FOR COURTS-MARTTAL. for the 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. 10. The power to prescribe the procedure, including modes of proof, in cases before courts-martial and other military tribunals has been expressly delegated to the President. (Art. 38.) 11. The statute of limitations of the Code of 1874 (art. 103, as amended by act of Apr. 11, 1890) fixed a uniform period of two years of liability to trial and punishment by general court-martial (not expressly excepting any capital offenses), to be reckoned from the date of the commission of the offense to the date of the issuing of the order for trial, except in case of peace desertion, when the period was required to be reckoned from the date of expiration of enlistment from which the soldier deserted to the date of his arraignment. No 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. 13. The right 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 47 and 49 of the revised code. 14. 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 use of a deposition when the witness resided just INTRODUCTION. XIII 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 Kevised Statutes regulating the taking of depositions for use in civil suits. 15. Under a provision of the Code of 1874 (art. 96) 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 MAXUAL FOR COURTS-MARTIAL. Earlier manuals have functioned in this field, but they have, in general, purported to be only compilations of pertinent statutes and regulations, thus furnishing officers and courts-martial with the framework of the law which they are required to administer, but leaving them to a search of texts and authorities for the fullness of the principles applicable to even the most familiar and elementary questions. While 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 is 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 Officers' 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 and the date when the Manual had to go to the printer in order to be available for troops on foreign station prior to the taking effect of the new code, the preparation of the Manual has necessarily been done with a haste which in a work of such importance it would have been desirable to avoid. It is hoped, however, that no fundamental errors appear therein. In using the Manual it should be borne in mind that over attention to technicalities represents a failure to grasp the spirit of the revision and will lead to requests for interpretation which may usually be avoided by the application of broad principles. It is hoped that by the amplification of chapters of this Manual and the inclusion of new chapters on such subjects as " The law of riot duty," " Martial law," and " Military government " future editions may be made to embrace all that is necessary to the service at large regarding the general subject of military law. January 1, 1917. 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. Cj'-c 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. Wigniore, P. C Pocket Cod^ of Evidence. Winthrop Military Law and Precedents, 2d edition, 1896. XV The discipline and reputation of the Army are 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 Regulations, 1835, Article XXXV, paragraph 1. CHAPTER I. MILITARY JURISDICTION. Page. Section I: Source and kinds of military jurisdiction 1 1. Source 1 2. Kinds 1 (a) Military government 1 (6) Martial law at home 1 (c) Martial law applied to the Army .' 2 (d) Military law 2 Section II: Exercise of military jurisdiction 2 3. Military tribunals 2 (a) Military commissions and provost courts 2 (6) Coiu-ts-martial, general, special, and simimary 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 (&) 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 (g) Army field clerks 4 (h) 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. 91487°— 17 2 1 2 MANUAt FOR COUETS-MABTIAL. (c) Martial law applied to the Army ; that is, military power extend- ing 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 municipal 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 by Congress August 29, 1916; other statutory enactments relating to the military service ; the Army Regulations ; and general and special orders and decisions promulgated by the War Department and by department, post, and other commanders. The unwritten military law is the " custom of war," consisting of customs of service, both in peace and war. This Manual deals primarily with military law. Section II. EXERCISE OF MILITARY JURISDICTION. 3. Military tribunals. — ^Military jurisdiction is exercised through the following military tribunals : (a) Military commissions and provost courts, for the trial of offenders against the laws of war and under martial law. (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 courts, see 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.) [Note. — ^The composition, jurisdiction, procedure, etc., of these tribunals are treated in the succeeding chapters of this Manual.] Section III. PERSONS SUBJECT TO MILITARY LAW. 4. Classes enumerated. — ^The following persons are subject to the Articles of War (A. W. 2) : [Note. — Wherever the following words are used in the Articles of War or this Manual, they are to be construed in the sense indicated below, unless the MILITAKY JUKISDICTION", * 8 context shows that a different sense is intended, v^iz: (a) The word " officer " shall be construed to refer to a commissioned officev ; ( & ) 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.) (&) Volunteers. — The volunteer forces shall be subject to the laws, orders, and regulations governing the Regular Army in so far as such laws, orders, and regulations are applicable to officers or enlisted men whose permanent retention in the military service, either on the active list or on the retired list, is not contemplated by existing law. (Sec. 4, act of Apr. 25, 1914, 38 Stat, 347.) (c) National Guard. — The National Guard, when called as such' into the service of the United States, shall, from the time they are required by the terms of the call to respond thereto, be subject to the laws and regulations governing the Regular Army, so far as such laws and regulations are applicable to officers and enlisted men 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 subject to military law. (35 Stat, 399.)] (d) National Chiard when drafted into Federal service. — Members of the National Guard and the National Guard Reserve drafted into the military service of the United States shall, fronj 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) Officers' 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 the Army of the United 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 Corps ordered to active service or for purposes of instruction or training shall, from the time he is required by the 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.) ] 4 MANUAL. -FOB COUETS-MAETIAL. (h) Oadets; ' ; • (c) Officers and soldiers of the Marine Corps when detached for service witn the armies of the United States by order of the President. (A. W. 2.) (d) Officers and enlisted men of the Medical Department of the Navy, serving with a body of marines detached for service with the Army in accordance with the provisions of section sixteen hundred and twenty- one of the Revised Statutes, shall, while so serving, be subject to the rules and articles of war prescribed for the govern- ment of the Army in the same manner as the officers and men of the Marine Corps while so serving. (Act of Aug. 29, 1916, 39 Stat., 573.) [Note. — (a) Except as provided in (c) and (d) supra or otherwise spe- cifically provided by law, tlie Articles of War do not apply to any person under the United States naval jurisdiction. (6) An officer or soldier of the Marine Corps detached for service with the Army may be tried by military court-martial for an offense committed against the laws for the government of the naval service prior to his 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. W. 2.)] (e) 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 m time of war all such re- tainers and persons accompanying or serving with the armies of the United States in the field, both within amd 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 camp" and (&) " persons serving with the armies of the United States in the field " who were made subject to military jurisdiction by A. W. 60 of the code of 1806 (A. W. 63 of the revision of 1874), A. W. 2 of the code of 1916 includes a third class, viz, (c) "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 Ai-my field clerks and shall * * * be subject to the rules and Articles of War. (Sec. 1, act of Aug. 29, 1916, 39 Stat, 625.)] (A) Field clerks. Quartermaster Corps. [Note 1. — Hereafter not to exceed two hundred clerks, Quartermaster Corps, * * * shall be known as field clerks. Quartermaster Corps, * * * and shall be subject to the rules and Articles of War. (Act of Aug. 29, 1916, 39 Stat, 626.)] [Note 2. — Inmates of the Soldiers' Home (R. S. 4824), the National Home for Disabled Volunteer Soldiers (R. S. 4835), all persons admitted to treatment in the General Hospital at Fort Bayard, New Mexico, while patients in said hos- pital (act of June 12, 1906, 34 Stat., 255), and all persons admitted to treat- ment in the Army and Navy General Hospital at Hot Springs, Arkansas, while patients in said hospital (act of Mar. 3, 1909, 35 Stat., 748), are by the statutes cited made subject to the rules and articles for the government of the armies of the United States, but court-martial jurisdiction over them has rarely, if ever, been exercised.] CHAPTER 11. COURTS-MARTIAL— CLASSIFICATION— COMPOSITION. Page. Section I : Classification 5 5. Kinds 5 (a) General courts-martial 5 (6) Special courts-martial 5 (c) Summarj^ courts-martial 5 Section II: Composition 6 6. Who competCLJ, to serve 6 Exceptions — (a) Accuser or witness for prosecution 6 (6) Ofiicers excepted by custom 6 7. Number of members 6 (a) General courts-martial 6 Reduction below quorum — Report by judge advocate 6 (6) 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 2, 1913 (37 Stat., 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 service with the Army by order of the President, shall be com- petent to serve on courts-martial for the trial of any persons who may lawfully be brought before such courts for trial. (A. W. 4.) Exceptions. — (a) No officer shall be eligible to sit as a member of a general or special court-martial when he is the accuser or a witness for the prosecution (A. W. 8, 9) ; but when there is only one officer present with a command he shall be the summary court-martial of that command and shall hear and determine cases brought before him (A. W. 10). [See chapter 8, sec. 1, par. 129.] (h) Chaplains, veterinarians, 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 to the service (within the maximum and minimum limits prescribed by law) , being a matter submitted to his sound discretion, must be conclu- sive. (Martin v, Mott, 12 Wheaton, 35 ; see also MuUan v. U. S., 140 U. S., 240.) While a number less than five can not be organized as a general court-martial or proceed with a trial, they may perform such acts as are preliminary to the organization and action of the court. Less 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 to four members and thereupon adjourning for an indefi- nite 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 it to reassemble for business. (Digest, p. 158, LXXV, B, 3), 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-MARTIAL CLASSIFICATION COMPOSITION. 7 of the post, command, or station where the court is sitting, who will 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 su-fflcient nurriber of qualified officers 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. (&) 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 the President (sec. 24, act of June 3, 1916, 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 present. (See pars. 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. 38, act of June 3, 1916, 39 Stat., 191), and all other officers lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the date they are required by the terms of the call, draft, or order to obey the same (A. W. 2). 10. Marine officers. — ^Marine officers can be detached for duty with the Army only by order of the President (E. 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 such order. When any part of the Marine Corps is pres- ent with the Army and engaged in a common enterprise with it, without an order of the President detaching it for service with the Army, the case is one of cooperation and not of incorporation, and in such a case no officer of the Marine Corps can exercise command over the Army any more than a naval officer can when some part' of the Navy is cooperating with the Army, and the converse is true of Army officers cooperating with the Marine Corps. (28 Op. Atty. Gen., 15.) 11. No distinction between Regulars and other forces. — ^No distinction now exists in the matter of 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, 1914, 38 Stat., 348; A. W. 4.) 12. Rank of members. — (a) The order appointing a general or a special 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. W. 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 service will permit. (MuUan v. U. S., 140 U. S., 240.) (h) Rank among officers of the Regular Army, forces drafted or called into the service of the United States, and Volunteers is deter- mined according to the rules laid down in A. W. 119. 13. Who may be tried. — (a) For the jurisdiction of general, special, and summary courts-martial as to persons see Chapter IV, Juris- diction. (h) In addition to the persons subject to military law enumerated in Chapter I, Section III, a/nte, the general court-martial also has jurisdiction over any other person who by the law of Avar is subject to trial by 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. Power 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. Rank of appointing authority 12 20. Power of appointing authority — How limited 12 Section II : Special courts-martial 12 21. Authorities enumerated, (a) to (i) 12 Exception — Appointing authority as accuser or prosecutor 12 22. Commanding officer as accuser or prosecutor 12 23. Rank of appointing authority 13 24. Commanding officer as member ] 3 Section III: Summary courts-martial 13 25. Authorities enumerated, (a) to (A) 13 26. "When more than one officer present 13 27. When but one officer present 11 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. (h) The commanding officer of a territorial division. (c) The commanding officer of a territorial department. (d) The Superintendent of the Military Academy. (e) The commanding officer of an army. (/) The commanding officer of an army corps. 10 MANUAL FOR COURTS-MABTIAL. (g) The commanding officer of a (tactical) division. (h) The commanding 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 do so. Exceptions. — (1) When any of the foregoing commanders is the accuser or the prosecutor of the person or persons to be tried, the court shall 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 Guard not in the service of the United States, see sec. 103 act of June 3, 1916, 39 Stat, 208; Appendix 2, post.^ 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 being Commander in Chief of the Army (Swain v. U. S., 165 XJ. S., 663) and in the particular case provided for by R. S. 1230. [Note. — When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed. And if a court-martial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. (R. 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., T22), extended this authority to include all persons (except officers) subject to military law under his command. This authority was 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 anvmus 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 against such officer ; or by reason of a personal interest adverse to the accused he may adopt practically as his own charges initiated by an- 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 he may formally refer or revise or cause to be revised and then formally referred, charges preferred against such officer by another; COUKTS-MARTIAIi 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 com/mand, 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 MANUAL FOR COURTS-MABTIAL. assigned or has succeeded to the command of the department. (Digest, p. 153, LXXII, A.) 19. Rank of appointing' authority — The power of the various com- manders enumerated in paragraph 14, supra^ to appoint general courts-martial is independent of their rank, but no officer other than those enumerated can appoint a general court-martial no matter what his rank may be. An officer who succeeds to any command or duty stands in regard to his duties in the same situation as his predecessor. (A. R. IT.) In the event of the death or disability of the permanent commander of a territorial department, or his temporary absence from the limits of his command, the senior line officer present and on duty therein will exercise the command of the department, unless otherwise ordered, until relieved by proper au- thority. (A. E. 196.) 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- pointe.d by the following authorities (A. W. 9), viz: {a) The commanding officer of a district. (b) The commanding officer of a garrison. {g) The commanding officer of a fort. {d) The commanding officer of a camp. {e) The commanding officer of any place other than («), (5), (c), and (d) where troops are on duty. (/) The commanding officer of a brigade. {g) The commanding officer of a regiment. (A) The commanding officer of a detached battalion. {i) The commanding officer of any other detached command. Exception. — ^When any one of the foregoing commanding officers is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior authority. When any superior authority deems it desirable, he may appoint a special court-martial for any part of his command. [Note. — For the authority to appoint special courts-martial in the National Guard not in the service of the United States, see sec. 104, act of June 3, 1316, 39 Stat, 208; Appendix 2, post.'] 22. Commanding officer as " accuser or prosecutor." — The rules laid down in Section I, paragraph IT, supra^ for determining when a com- mander is the accuser or prosecutor apply equally to trials by special COUBTS-MAKTIAL 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. Rank of appointing authority. — As in the case of general courts- martial, the test of the power to appoint a special court-martial is whether the officer is one of the commanders designated in A. W. 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. {h) The commanding officer of a fort. {c) 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. {h) 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. 46, War Dept., Oct. 24, 1914.) 14 MANUAL FOB COURTS-MABTIAL. 27. When but one officer present. — When but one officer is present with a command he shall be the summary court-martial of that com- mand and shall hear and determine cases brought before him. (A. W. 10.) In such a case, no order appointing the court will be issued but the officer will enter on the record that he is the "only officer present with the command." (As to retired officers, see par. 9, h.) 28. " Detachment " defined. — ^A battalion or other unit is " detached " when isolated or removed from the immediate disciplinary control of a superior of the same branch of the service in such a manner as to make its commander primarily the one to be looked to by superior authority as the officer responsible for the administration of the dis- cipline of the enlisted men composing the same. The term 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" within 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 of the garrison or fort to appoint such courts when by him deemed desirable. (Bui. 13, War Dept., 1913, p. 7.) 29. Power of brigade commanders. — A brigade commander is respon- sible for the instruction, tactical efficiency and preparedness for war service of his brigade. (A. R. 194.) If the brigade is serving at one garrison or post he has, by virtue of his power as such garrison or post commander, authority to retain within himself the appointing power of all summary courts within his command, but if he does not exercise the authority which is vested in him by statute he allows the appointing power, including the power of review, to pass to regi- mental (and detachment) commanders. (Digest, p. 580, XVI, E, 7.) If the brigade is acting as a tactical unit in the field, he may as su- perior authority, appoint summary courts-martial for his command whenever he deems it desirable, but such authority will ordinarily be exercised jby the regimental commanders. COUBTS-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. CHAPTEE ly. COURTS-MARTIAL— JURISDICTION. Page. Section I : Jurisdiction in general 17 32. Jurisdiction defined 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 of other military tribunals 23 45. When concurrent with courts-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 finding of guilty, to award a punishment for the offense within its prescribed limits. Being courts of special and limited jurisdiction their organization, powers, and mode of procedure must conform to all the statutory provisions relating to their jurisdiction. (For the source and kinds of military jurisdiction and persons subject to mili- tary law see Chap. I, Sees. I and III.) 91487°— 17 3 - 17 18 MANUAL FOB COURTS- MARTIAL. 33. Courts-martial not part of Federal judicial system. — ^While courts- martial have no part of the jurisdiction set apart under the article of the Constitution which relates to the judicial power of the United States they have an equally certain constitutional source. They are established under the constitutional power of Congress to make rules for the government and regulation of the land forces of the United States, and are recognized in the provisions of the fifth amendment expressly exempting "cases arising in the land and naval forces" from the requirement as to presentment and indictment by grand jury. They are tribunals appointed by military orders issued under authority of law. The power to appoint them, as well as the power to act upon their proceedings, is vested by law in certain comimand- ing officers. Their jurisdiction is entirely crirmruil. They have no power 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 legal and valid as those of any other tribunals. No appeal can be taken from them, nor can they be set aside, or reviewed by the courts of the United States, nor of any State, but United States courts may, on writ of habeas corpus, inquire into the legality of detention of a .person held by military authority, at any time, either before or during trial or while serving sentence, and will order him discharged if it appears to the satisfaction of the court that any of the statutory requirements conferring jurisdiction have not been fulfilled. Their sentences have in themselves no legal effect until they have received the approval or confirmation of the proper commanding officer. With such approval or confirmation, however, their sentences become operative 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 every court-martial, and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: {a) That it was convened by an officer empowered by statute to appoint it. {h) That the persons who sat upon the court were legally com- petent to do so. () , supra^ committed more than two {2) years before the arraignment of such person (A. W. 39). {d) Computation of the period of Ivmitation. — The point at and from which the period of limitation is to begin to run is the date of 68 MANUAL FOR COUETS- MARTIAL. the commission 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) The period of any absence of the accused from the jurisdiction of the United States ; and (2) Any period during which by reason of some manifest impedi- ment the accused shall not have been amenable to military justice. [Notes. — "Manifest impediment" means only such impediments as operate to prevent the court-martial from exercising its jurisdiction, and includes such con- ditions as being held as a prisoner of war in the hands of the enemy, or being imprisoned under the sentence of a civil court upon conviction of crime (In re Davison, 4 Fed. Rep., 510) ; but any concealment of the evidence of their guilt or other like fraud on their part while they remain within the jurisdiction of the United States, by which the prosecution is delayed until the time the bar has run, did not deprive them of the benefit of the statute. (14 Op. Atty. Gen., 268.) The thirty-ninth article of war did not have the effect to authorize trial or punishment for any crime or offense barred by the provisions of law existing at the date of its enactment, August 29, 1916.] (3) Limitation as to numher of trials. — (a) No person shall be tried a second time for the same offense. (A. W. 40.) (b) Where a person subject to military law has been once duly convicted or acquitted by a court-martial he has been " tried " in the sense of the article, and can not be tried again, against his will, for the same offense, or for any included offense and it is immaterial Avhether the conviction or acquittal has been approved or disap- proved. ((?) A person subject to military law has not been " tried " in the sense of A. W. 40 in any of the following cases : Where the party, after being arraigned or tried before a court which was illegally constituted or composed, or was without jurisdic- tion, was again brought to trial before a, con\petent tribunal; where the accused, having been arraigned upon and having pleaded to cer- tain charges, was rearraigned upon a new set of charges substituted for the others which were withdrawn; where one of the several dis- tinct charges upon which the accused had been arraigned was with- drawn pending the trial, and the accused, after a trial and finding by the court upon the other charges, was brought to trial anew upon the charge thus withdrawn; where, after proceedings commenced, but discontinued without a finding, the accused was brought to trial anew upon the same charge; where, after having been acquitted or convicted upon a certain charge which did not in fact state the real offense committed, the accused was brought to trial for the same act, but upon a charge setting forth the true offense; where the court was not sworn; where the first court was dissolved because reduced below five members by the casualties of the service pending the trial ; where, for any cause, without fault of the prosecution, there was a COUKTS-MAKTIAL PKOCEDURE DUKING TRIAL. 69 "mistrial," or the trial first entered upon was terminated, or the court dissolved, at any stage of the proceedings before a final ac- quittal or conviction. (Digest, p. 167, C, II, B.) {d) The same acts constituting a crime against the United States can not, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or mili- tary, of the same government. Although the same act when committed in a State might constitute two distinct offenses, one against the United States and the other against the State, for both of which the accused might be tried, that rule does not apply to acts committed in the Philippine Islands. The government of a State does not derive its powers from the United States, while that of the Philippine Islands does owe its existence wholly to the United States. A soldier in the Army, having been acquitted of the crime of homicide, alleged to have been committed by him in the Philippine Islands, by a military court-martial of competent jurisdiction pro- ceeding under authority of the United States, can not be subse- quently tried for the same offense in a civil court exercising authority in that Territory. (Grafton v. U. S., 206 U. S., 333.) A similar rule applies in Alaska, Hawaii, Porto Rico, The Panama Canal Zone, or any other locality where the civil courts derive their authority from the United States. {e) There can not be a second trial where the offense is really the same though it may be charged under a different description and under a different article of war. Thus, where the Government elects to try a soldier under A. W. 61 for absence without leave, and the testimony introduced develops the fact that the offense was desertion, the accused, after an acquittal or conviction, can not legally be brought a second time to trial for the same absence charged as de- sertion. (Digest, p. 169, C, II, D.) (/) It is not misrepresentation or concealment by an applicant for enlistment, but the procuring of his enlistment by means of misrepresentation or concealment, together with the receipt of pay or allowances, which constitutes the military offense of fraudulent enlistment under A. W. 54. Therefore, where a soldier was tried for and convicted of fraudulent enlistment in procuring his enlist- ment by means of a misrepresentation or concealment, to try him again for the same enlistment on account of another misrepresenta- tion or concealment subsequently discovered would be a second trial for the same offense. (Digest, p. 169, C, II, E, 1.) {g) The thirty-ninth article of war does not deprive a court- martial of jurisdiction of an offense after the periods prescribed. The court still has jurisdiction. The article gives the accused a right 70 MANUAL FOR COURTS-MARTIAL. of exemption from trial if the accused claims the exemption and proves it. In other words, the exemption from trial is a defense that the accused must assert in order to take advantage of it. The defense may be made by entering a plea in bar, or it may be made after a plea of not guilty by introducing evidence showing the facts that entitle him to the exemption. (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 be 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 Phrases, vol. 6, p. 5168, and authorities there cited.) 151. Constructive condonation. — Where a deserter has been restored to duty without trial by authority competent to order his trial, this action is regarded as a constructive condonation of the offense and may be pleaded in bar of trial subsequently ordered. (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., 622.) (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 issue. (Winthrop, p. 411.) (c) Eelease 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-MAKTIAL 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, he is " unable to disprove the charge or defend himself " ; or that his accuser 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, etc. — ^these are not within the scope or purpose of special pleas in bar, nor can they properly be raised in an interlocutory form, or otherwise than upon the trial and by the testimony, being, as they are, of the very substance of the defense. (Idem, p. 412.) 163. 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 recorded. The accused may make several special pleas to any charge or specification, (h) 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 plea, the proceedings will be returned by him to the court, with reasons for such disagreement »and with instructions to the court to reconvene and reconsider its action. To the extent that such pleas present issues of law, the court properly defers to the views of the reviewing authority. The order returning the procedings for reconsideration should direct the court, upon vacating its prior action, to proceed with the trial of the case. If the reviewing author- ity approves the action of the court in sustaining such pleas his action will be indorsed on the proceedings and published in the final review of the case. (c) If the charge and specification to which a special plea has been sustained are not capable of amendment and 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 FOR COURTS- MARTIAL. {d) When all the special pleas to a given charge or specification are overruled, the accused must plead to the general issue as to that charge or specification. 154. Pleas to the general issue. — {a) Usually the plea of the accused is "guilty" or "not guilty" to each charge and specification ; or, guilty to a specification excepting certain words, and to the excepted words not guilty; or, as when charged with an offense which includes a lesser one of a kindred nature, guilty to the specification except cer- tain words, substituting therefor certain others, to the excepted words " not guilty," to the substituted words " guilty," and to the charge not guilty, but guilty of the lesser included offense. {h) A court-martial is authorized, in any case, in its discretion, to permit an accused to withdraw a plea of not guilty, and substi- tute one of guilty, and vice versa, or to withdraw either of these general pleas and substitute a special plea. And wherever the ac- cused applies to be allowed to change or modify his plea, the court should, in general, consent, provided the application is made in good faith and not for the purpose of delay. ((?) 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 the punishment is discretionary a full knowledge of the circumstances attending the offense is es- sential 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 maThdatory^ a full knowledge of the attendant circumstances is necessary to the reviewing authority to enable him to comprehend the entire case and correctly judge whether the sentence should be approved or disapproved or clemency granted. The court should therefore take 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* duced 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. {d) 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 that part : First. The various elements which constitute the offense charged, as set forth in Chapter XVII, defining the punitive articles of war; and COUBTS-MARTIAL PROCEDUBE DUBING TBIAL. 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 pl^a, 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- fied 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, is a 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 (^), supra. 74 MANUAL FOR COUBTS-MAETIAL,. Section IV. MOTIONS. 156. Motion to sever. — A motion to seA^er is a motion by one of two or more joint accused to be tried separately from the other or others. It will regularly be made at the arraignment. Except where the essence 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 more of his coaccused, or of the testimony of the wife of one, or that the defenses of the other accused are antagonistic to his own, or that the evidence as to them will in some manner prejudice his defense. This motion has rarely been presented to the court in our military practice. Where the prosecution desires to use one of two or more joint accused as a witness against another or others, the practice is not to move to sever, but, by order of the convening authority, to withdraw charges as to such one. (See Winthrop, p. 379, and authorities there quoted.) 157. Motion to elect. — The prosecution is at liberty to charge an act under two or more forms, where it is doubtful under which it will more properly be brought by the 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 prosequi 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 further 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 prosequi. The principal grounds for this proceeding when duly authorized will be — {a) The fact that the charge or specification is discovered to be substantially defective and insufficient in law, or {h) That it is ascertained that the allegations can not be proved, or {c) That the testimony available is not sufficient to sustain them, or {d) That the criminality of one of the accused, where there are several, can not be established, or {e) That it is proposed to use one of the accused as a witness. The withdrawal of such a charge or specification is not in itself equivalent to an acquittal or to a grant of pardon and can not be so pleaded. It simply removes from the pending case a particular COURTS-MARTIAIi — PROCEDURE DURING TRIAL. 75 charge or specification without prejudice to its being subsequently renewed in its original or a revised form. In court-martial practice when authorized by the appointing authority a nolle prosequi may be entered either before or after arraignment and plea. If after ar- raignment it is found that a charge or specification can not be sus- tained or it is determined for other reasons that the same shall not 'be pursued, while it would be legal to enter a nolle prosequi thereto, it will be the preferable course, as well as most just to the accused, not to do so, but to allow the accused to be formally acquitted thereon at the finding. (See Winthrop, pp. 369-371.) CHAPTEK X. COURTS-MARTIAL— WITNESSES AND DEPOSITIONS. Section I, Attendance of witnesses: Pago. 159. Process to obtain witnesses 78 160. Service of subpoena 78 161. Summoning of witnesses 78 162. Advance notice to witnesses 79 163. Attendance of military witnesses 79 164. Procedure to secure attendance of civilian witness 79 165. When accused must be confronted with witness 80 166. Procedure to obtain books, documents, or papers 80 167. Civilian witness in confinement 80 168. Warrant of attachment 80 169. Habeas corpus proceedings in connection with attachments 81 170. Punishment for refusal to appear or testify 82 171. Same in Philippine Islands 83 172. Tender of fees preliminary to prosecution 83 173. Contempts 83 (a) Authority to punish 83 (6) Persons who may be punished for contempt 84 (c) Direct and constructive contempts 84 (d) Procedure 84 Section II. Depositions: 174. When admissible 84 175. Before whom taken 85 176. Interrogatories, how submitted 35 177. Procedure to obtain deposition 85 178. Tracing delayed depositions 87 179. Designation of deponent by official title 87 180. Deponent's answers to be responsive 87 181. Fees for taking depositions ■ 87 182. Taking depositions in foreign country 87 Section III. Fees, mileage, and expenses of witnesses: 183. Officers and soldiers, active or retired 88 184. Civilians in Government employ 88 185. Civilians not in Government employ 88 186. Payment for return journey 89 187. Contents of vouchers 89 188. Witness in several trials on same day 89 189. Voucher to be delivered to witness 89 190. Lost voucher 89 191. Fees for service of subpoenas 90 192. Employment of experts 90 193. Expenses of courts-martial, how payable 90 77 78 MANUAL FOB COURTS- MARTIAL. Section I. ATTENDANCE OF WITNESSES. 159. Process to obtain witnesses. — Every judge advocate of a general or special court-martial, and every summary court-martial shall have power to issue the like process to compel witnesses to appear and testify which courts of the 'United States, having criminal jurisdic- tion, may lawfully issue; but such process shall run to any part of the United States, its Territories, and possessions. (A. W. 22.) The authority to issue such process is in terms vested solely in the judge advocate of a general or special court-martial and in a summary court- martial, and it is by them alone that the process can be initiated. The judge advocate, however, will sometimes properly consult the court as to the desirability of resorting to an attachment; especially where any considerable time may be required for the service and return of the same, and an unusual adjournment may thus be necessitated. He will also properly resort to it whenever the court in its desire to secure the best or material evidence not otherwise procurable calls upon him for the purpose. ( Winthrop, p. 298. ) {CM. C. M.^ No. 1.) [Note. — ^1. For power to issue process to secure the attendance and testimony of witnesses before courts-martial in tlie National Guard, not in the service of the United States, see sec. 108, act of June 3, 1916, 39 Stat., 209, Appendix 2. 2. Wherever in this section reference is made to issue of such process by a judge advocate, a summary court-martial will be understood to be included.] 160. 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. 164, below.) After making service a copy of the subpoena 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. [Note. — 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 sunmion witnesses at the expense of the Government without the order of the court, unless satisfied that their testimony is material and necessary. In order that the accused may not be denied a full opportunity to make his defense any witness requested by him is usually summoned. But a reason- able discretion should be exercised where the summoning of the num- COURTS-MARTIAL 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- pected 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 by signing the printed statement, " I hereby accept service of the above subpoena," and to return same to the judge advocate, for which purpose a return addressed penalty 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 fees and mileage will not be reduced by reason of his voluntary attendance, and that a voucher for his fees and mileage going to and returning from the place of the sitting of the court-martial will be delivered to him promptly on being discharged from attendance on the court. If such informal methods are 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 near the post where 80 MANUAL FOR COURTS- MABTIAL. the court is sitting, the service will be by the judge advocate or by some person designated by him. If the witness is not at or near the post where the court is sitting, but is at or near another military post, command, or detachment, the judge advocate will send the duplicate subpoena direct to the commanding officer of such post, command, or detachment, requesting service of the same. Upon receipt of the request the officer receiving it will serve the subpoena or cause it to be served. The service will be made without delay, and the retained copy of the subpoena, with proof of service indorsed on it, will be sent at once direct to the 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 witness does not 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. XI, Evidence, and Chap. lY, Sec. III.) In such cases, there- 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 the judge advocate, directing the person to appear in court and to bring with him such book, document, or paper, which should be de- scribed in sufficient detail to enable it to be readily identified. [Note. — For 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 made by the judge 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 the territorial possessions of the United States of a civilian who willfully neglects or refuses, after he has been duly subpoenaed, COUETS-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 14.) 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 to be a full 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 elapsed 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 witness will furnish a military detail sufficient to execute the process. 169. Habeas corpus proceedings in connection with attachments. — {a) If, in executing a warrant of 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- ice direct to The Adjutant General of the Army and to the command- ing 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 91487°— 17 7 82 MAK-UAL FOR COURTS-MARTIAL. approved August 29, 1916 (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 writ issued by a State court or judge, it is the duty of the officer to hold the prisoner in custody under his warrant of attachment, and to refuse obedience 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 attendance of a witness as above described can be enforced, there is no power in a court-martial itself to compel a witness to testify or to punish him for not testifying. The only procedure is that provided in A. W. 23, as follows: Every person not subject to rmlitary law^ who being duly sub- poenaed to appear as a witness before {a) any military court, com- mission, court of inquiry, or board, or {b) any officer, military or civil, designated to take a deposition to be read in evidence before such court, commission, court of inquiry, or board, willfully {a) neglects or refuses to appear, or (&) refuses to qualify as a witness, or to testify, or (ilpfir> fiTArr>lf inft ...... TTnr<3« AYArfisft - ...... 3 Tn^^T»^1f»t.^f^n . . . .... 2 2 Muster Pricnn iniarH School Hta'hlQ /Jntir March Reveille or retreat roll call - • 1 COURTS-MARTIAL PUNISHMENTS. Article I — Continued. 163 Offenses. Punishments. i 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 pay per month. For- feituftt of pay. i Years. Months. Days. Months. Days. ei Leaving without permission the properly appointed place of assembly for, or place for: Athletic exercise Drill Fatigue Field exercise Gallery practice .. .... Horse exercise Inspection 5 Instruction Muster Parade Prison guard . School Stable duty Reveille or retreat roll call £ 6? Using contemptuous or disrespectful words against the President, Vice President, etc. Behaving with disrespect toward his supe- rior officer. Attempting to strike or attempting other- wise to assault a noncommissioned officer in the execution of his office. Behaving in an insubordinate or disrespect- ful manner toward a noncommissioned officer hx the execution of his office. Disobedience, willful, of the lawful order of a noncommissioned officer in the execution of his office. Striking or otherwise assaulting a noncom- missioned officer in the execution of his office. Threatening to strike or otherwise assault, a noncommissioned officer in the execution of his office. Using insvilting language toward a noncom- missioned officer in the execution of his office. Drawing a weapon upon a noncommis- sioned officer quelling a quarrel, fray, or disorder. Refusing to obey a noncommissioned officer quelling a quarrel, fray, or disorder. Threatening a noncommissioned officer quelling a quarrel, fray, or disorder Breach of arrest Yes 1 en 6 6 2 6 6 6 2 6 6^ Yes 1 4 2 4 2 m Yes Yes 2 6 1 6 1 f» Escaping from confinement Yes Yes Yes 1 1 1 'n Releasing, without proper authority, a prisoner committed to his charge Suffering a prisoner committed to his charge to escape: Through design Through neglect 6 3 6 6 3 6 83 Suffering, through neglect, military prop- erty to be damaged, lost, spoiled, or wrongfully disposed or: Of a value of $20 or less Of a value of $50 or less and more than $20. Of a value of more than $50 Yes 1 164 MANUAL FOR COURTS-MARTIAL. Article I — Continued. Offenses. Punishments, 1 J2 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 pay per month. For- feituw of pay. Years. Months. Days. Months. Days. 83 Suffering, willfully, military property to be damaged, lost, si)oiled, or wrongfully dis- posed of : 6 6 6 Of a value of $50 or less and more than $20. Of a value of more than $50 Yes Yes....: 2 84 Injuring or losing, through neglect, horse, arms, ammimition, accouterments, equip- ment, clothing, or other property issued for use in the military service, or items belonging to two or more of said classes: Of a value of $20 or less 3 6 3 5 Of a value of $50 or less and more than $20. Of a value of more than $50 Yes 1 Injuring or losing, willfully, horse^ arms, rjnmunition, accouterments, equipment, clothing, or other property issued for use In the military service, or items belonging to two or more of said classes: Of a value of $20 or less 6 6 6 Of a value of $50 or less and more than $20. Of a value of more than $50 Yes Yes Yes 2 SeUtng or otherwise wrongfully disposing of horse, arms, ammunition, accouterments, equipment, clothing, or other property Issued for use in the military service, or it^ims belonging to two or more of said classes: Of a value of $20 or less 6 ' Of a value of $50 or less and more than $20 Of a value of more than $50 Yes Yes 1 5 85 Fotind drunk: At formation for or at— Athletic exercise . Drill Fatigue GaUer V practice Inspection 20 Instruction March Muster Parade . Review School. Stable duty . . Reveille or retreat roll call 5 On guard 6 6 On duty as— Barrack orderly Cook . . .■."■":::::::::::::::: Dining room orderlv- Farrier Horseshoer Kitchen police 20 Mess sergeant Noncommissioned officer in charge of quarters. Saddler Supply sergeant Wagoner i COURTS-MARTTAL PUNISHMENTS. Article I — Continued. 165 Offenses. Punishments. i « Dis- honor- able dis- charge, forfeitiure of all pay and allow- ances due and to become due. Confinement at hard labor. For- feiture of two- thirds pay per month. For- feiture of pay. 4 ^ Years. Months. Days. Months. Days. 86 Found drunk on post, sentinel ... Yes .. . 6 1 3 Leaving before regularly relieved from or sleeping on post, sentinel. Using a provoking or reproachful speech or gesture to another. Arson ....... Yes 1 90 3 0? Yes Yes Yes Yes Yes Yes 20 5 10 20 10 Assault: With intent to do bodily harm With intent to commit any felony ex- cept murder or rape. With intent to commit murder or rape. . Embezzlement or larceny: Of property of a value of $20 or less Of property of a value of $50 or less, and more than $20. Of property of a value of more than $50. . . Manslaughtex: 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. Perjury 6 Yes Yes Yes Yes Yes Yes Yes Yes Yes 1 5 3 10 5 10 6 1 5 Robbery 94 Forging or counterfeiting a signattu'e, mak- ing a false oath, and offenses related to either of these. Other cases: When the amount involved is $50 or less . When the amount involved is more than $50. 96 6 3 3 ::;::::: 6 3 3 Abusing a public animal ... Allowing a prisoner to receive or obtain intoxicating liquor. Appearing in civilian clothfaig without authority. Appearing in unclean uniform, or not in prescribed uniform, or in uniform worn otherwise than in manner prescribed. Assault. 10 1 3 6 6 6 1 1 3 3 1 3 6 Assault and battery Attempting to escape from confinement Attempting to strike or attempting other- wise to assult a sentinel in the execution of his duty. Behaving in an insubordinate or disresi)ect- ful manner toward a sentinel in the execu- tion of his duty. Breach of restriction (other than quarantine) to command, quarters, station, or camp. Carrying a concealed weapon Yes... 6 1 1 3 3 Concealing, destroying, mutilating, obliter- ating, or removingwiilfullyandunlawfully a pubUc record, or taking and carrying away a public record with intent to con- ceal, destroy, mutilate, obliterate, remove, or steal the same. Conspiring to escape from confinement Destroying, willfully, public property: Yes Yes . 3 6 6 Yes... Of a value of $50 or less, and more than $20. Of a value of more than $50 Yes Yes 1 5 166 MANUAL FOR COURTS-MARTIAL. Article I — Continued. Punishments. Offenses. Dis- honor- able dis- charge, forfeiture of all pay and allow- ances due and to become due. Confinement at hard labor. Years. Months. Days For- feittore of two- thirds pay per month. Months. For- feiture of pay. Days. Discharging, through carelessness, a firearm . Disobedience, willful, of the lawful order of a sentinel in the execution of his duty. Disorderly in command, quarters, station, or camp. Disorderly under such circumstances as to bring discredit upon the military service. Drinking liquor with prisoner Drunk and disorderly in command, quar- ters, station^ or camp. Drunk and disorderly under such circum- stances as to bring discredit upon the military service. Drunk in command, quarters, station or camp. Drunk under such circumstances as to bring discredit upon the military service. Dnuik, prisoner foimd Failing to obey a lawful order: O fa superior ofBcer Of a noncommissioned officer Of a sentinel Failing to pay a just debt imder such cir- cumstances as to bring discredit upon the military service. False official report or statement knowingly made: By a noncommissioned officer By any other soldier False swearing Forgery Gambling: By a noncommissioned officer with a per- son of lower military rank or grade. In command, quarters, station or camp in violation of orders. Indecent exposure of person Introducing a habit-forming narcotic drug into command, quarters, station or camp: For sale All other cases Introducing intoxicating liquor into com- mand, quarters, station or camp: For sale All other cases Loaning money, either as principal or agent, at an usurious rate of interest to another in the military service. Loitering or sitting down on duty by senti- nel. Obtaining money or other property under Yes. IS Yes. Yes. Yes. Yes. Yes. When the amount obtained Is $20 or less. Wlien the amount obtained is $50 or less and more than $20. When the amount obtained is more than $50. Refusing to submit to medical or dental treatment. Refusing to submit to a surgical operation. . Sodomy and other unnatural crimes Straggling Striking or otherwise assaulting a sentinel in the execution of his duty. Subornation of perjury Threatening to strike or otherwise assault or using other threatening language toward a sentinel in the execution of his duty. Yes. Yes. Yes. Yes. Yes. Yes. Yes. Yes. OOUETS-MARTIAL — PUNISHMENTS. Article I — Continued.. 167 Punishments. Dis- honor- able dis- charge, forfeiture ofaU pay and aflow- ances due and to become due. Confinement at hard labor. Years. Months. Days. For- feiture of two- thirds pay per month. Months. For- feiturs of pay. Days, Unclean accouterment, arm, clothing, equipment, or other military property, found with. Using insulting language toward a sentinel in the execution of his duty. Uttering a forged instrument Violation of condition of parole by general prisoner. Yes. Abticle 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 discretion of the court, at the rates indicated in the following table of equivalents : Forfeiture. CJonflnement at hard labor. Detention. Hard labor without con- finement. 1 day's pay... Iday li days' pay... IJ days. Article III. GENERAL LIMITATIONS. Section 1. A court shall not, by a single sentence which does not include dis- honorable discharge, adjudge against a soldier : (a) Forfeiture of pay at a rate greater than two-thirds of his pay per month. (&) Forfeiture of pay in an amount greater than two-thirds of his pay for six months. (c) Confinement at hard labor for a period greater than six months. Sec 2. A court shall not, by a single sentence, adjudge against a soldier : (a) Detention of pay at a rate greater than two-thirds of his pay per month. (&) Detention of pay in an amount greater than two-thirds of his pay for three months. (c) Hard labor without confinement for a period greater than three months. Article IV. NONCOMMISSIONED OFFICERS. Section 1. A court shall not, unless they in the same sentence adjudge reduction to the ranks, adjudge against a noncommissioned officer confinement at hard labor, nor hard labor without confinement. 168 MANUAL FOB COURTS-MARTIAL. Sec. 2. A court may, upon his conviction of an offense or offenses for which they may adjudge confinement at hard labor for a period of five or more dayi, authorized substitution considered, adjudge, in addition to the punishments otherwise authorized, reduction against a noncommissioned oflScer or against a private, first class. Aeticle V. PBEVIOTJS CONVICTIONS. Section 1. A general or special court shall, upon conviction of a soldier, be opened and shall thereupon ascertain whether there is evidence of a previous conviction or convictions, w^hich has been referred to the court by the con- vening authority, and, if there be such evidence, shall receive it. Sec. 2. A court may, under the authority contained in section 1 of this article, receive evidence only of convictions by court-martial of an offense or offenses committed by the accused during his current enlistment and within one year next preceding the commission by him of an offense of which he stands convicted before the court. These convictions may be proved only by the records of the trials in which they were had, or by duly authenticated copies of such records, or by duly authenticated copies of orders promulgating such trials and convictions. Aeticue VI. DISHONOBABLE DISCHABGE. Section 1. 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, in Article I of this order or by the custom of the service, authorized, but the aggregate term of confinement at hard labor for which, as authorized in said article or by the custom of the service, without substitution, equals or exceeds six months, adjudge against a soldier, in addition to the confinement at hard labor, without substitution, authorized in said article or by the custom of the service for the offense or offenses of which he is convicted, dishonorable discharge and forfeiture of all pay and allowances due and to become due. Abticle VII. EFFECT AND APPLICATION OF THIS OBDEB. Section 1. This order prescribes the maximum limit of punishment for each of the offenses therein specified, and thus indicates an appropriate punishment for an offense which is attended by aggravating circumstances, or after convic- tion of which there is received by the court evidence of several previous con- COURTS-MARTIAL PUNISHMENTS. 169 victions. In other cases the punishment will be graded down according to the circumstances thereof. Sec. 2. Offenses not herein provided for remain punishable as authorized by statute or the custom of the service, but, in cases for which maximum punish- ments are not prescribed, courts will be guided by limits of punishment pre- scribed for closely related offenses. Aeticue VIII. ADMINISTBATIVE BULES. 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. Abticle IX. DATE ON WHICH OPERATIVE. This order shall become operative 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, 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- before prescribed. WooDEOW Wilson. The White House, 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).] CHAPTER XIV. COURTS-MARTIAL— PROCEDURE OF SPECIAL AND SUMMARY COURTS AND PROCEDURE ON REVISION. Section I: Special courts-martial: Page. 350. Procedure 171 Section II: Summary courts-martial: 351. Procedure (a) to (^) 171. Section III: Procedure on revision: 352. Of general or special courts-martial 172 353. Of summary courts-martial 172 Section I. SPECIAL COURTS-MARTIAL. 350. Procedure. — The procedure of and before special courts-martial will, so far as practicable, be identical with that prescribed for gen- eral courts-martial. Section II. SUMMARY COURTS-MARTIAL. 351. Procedure. — (a) The summary court will be opened at a stated hour daily, except Sundays, for the trial of such cases as have been properly referred to it for trial. Trials will be had on Sunday only when the exigencies of the service make it necessary. (b) The summary court will at the beginning of each trial, iri' 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 represents 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 to him (a) the elements constituting the offense to which he has pleaded guilty, and (b) 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 or offense, 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 inve^igation, if any, as the doing of justice may ap- pear to require. (g) 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 Government he will obtain the attendance of, swear, and 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, swear, and examine such witnesses, and will obtain 171 172 MANUAL FOB COURTS-MAETIAL. Bucli other evidence, documentary and other, as may tend to disprove or negative guilt of such allegations, or explain the acts or omissions charged, or show extenuating circumstances or establish good charac- ter. He will permit the accused fully to examine all witnesses that appear, and will, to the fullest extent, aid him in making such exami- nation. He will, in every proper way, encourage and aid the accused in making his defense. In all cases he will extend to the accused full opportunity to testify in his own behalf and to make a statement in denial, in explanation, or in extenuation, and will, hef ore arriving at * a finding, assure himself, by inquiry of the accused, that he has no further testimony to offer and no further statement to make. (/) Having done so, he will, as soon as the trial is concluded, arrive at his findings and record them in the proper place on the charges. (g) In the event of the conviction of a soldier he will consider the evidence of previous convictions, if any, referred to him. • (A) 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. (i) In the event of a finding of not guilty of all the charges and specifications he will record an acquittal instead of a sentence. (k) Having recorded his findings and an acquittal or sentence, he will subscribe his name, rank, and organization assummary 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 6.) The members of the court who participated in the findings 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 trial by a special court-martial has been returned to him orally for revi- sion, may state briefly 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 been said 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: Tag^ 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 (b) In detail.' 174 (c) Record of revision 177 (d) Clemency recommendation 177 Section II: Special courts-martial: 358. Form and substance, (a) to (A) ., 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 178 365. 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 (d) 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 of the president and the judge advocate, but in case the record can not be authenticated by th6 judge advo- :173 174 MANUAL FOR COURTS-MARTTAL. cate, by reason of his death, disability, or absence, it shall be signed by the president and assistant judge advocate, if any ; and if there be no assistant judge advocate, or in case of his death, disability, or absence, then by the president and one other member of the court. (A. W. 33.) 355. What the record is and by whom prepared. — The legal record of a court-martial is that record which is finally approved and adopted by the court as a body and authenticated by the signatures of its president and judge advocate. The record is prepared by the judge advocate under the direction of the court, but the court as a whole is responsible for it, and the instrument which it approves as such is its record, however the same may have been made up. It is imma- terial to the sufficiency of a record whether the same was kept or written 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 case 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 be supplied from any previous 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 these is precluded by A. W. 19. It is, in fact, only the result of a deliberation in closed session that is to be entered upon the record. {!)) In detail. — The record of proceedings in each case will show, among other things, each in its proper place : 1. A brief of itself in the prescribed form. 2. An index of itself in the prescribed form. 3. Whether a carbon copy of the record of trial was prepared, and if so, the disposition made thereof. 4. The place and date of each meeting of the court. COURTS-MARTIAL RECORDS OF TRIAL. 175 6. The fact and hour of each meeting. 6. The number, date, and source of the order appointing the court and of each 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 present at the assembling of the court or at any proceedings in revision. 8. The fact of the presence and the name, rank, and organization 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. 9. 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 revision, 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. 14. The name of each person, if any, who acted as interpreter during any part of the trial, and that each such person was sworn. 15. That the accused was informed of his right to demand a copy of the record of his trial, and was asked whether or not he de- sired a copy thereof, together with his answer thereto. 16. 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. 18. The several charges and specifications upon which the ac- cused was arraigned. 19. The name, rank, and organization of the officer who sub- scribed the charges. 20. The pleas of the accused to the several specifications and charges upon which he was arraigned. 176 MANUAL FOB COUBTS-MABTIAL. 21. That after a plea of guilty the president — (a) Explained to the accused (1) the elements constituting the offense to which he had pleaded guilty; (2) the maximum punish- ment for such offense; (h) Asked the 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 be punished as explained to him. 22. The answer of the accused thereto and the action, if any, had thereon. 23. That the several witnesses were sworn. 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 prosecution or defense from any pujblication 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 explana- tion, or in extenuation. 32. Each motion, objection, argument, statement, etc., made in open court and the action, if any, had thereon. 33. 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. If 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 business. 36. In a joint trial, that each and every one of the several accused was accorded each and every right and privilege he would enjoy if tried separately, and, as to each accused, proper findings and sentence or 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.) COURTS-MARTIAL — RECORDS OF TRIAL. 177 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 action. 39. In case of receipt by the court of evidence of previous convic- tions, 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, was 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. 42. 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 court concurred in the finding. 43. In case of a sentence to suffer 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.) 47. 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 revision, — 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. (d) Clemency recommendation. — A recommendation to clemency will not be embodied in the record proper, but will be bound into the record immediately after the exhibits. (See par. 332.) Section II. SPECIAL COURTS-MARTIAL. 368. Form and substance. — (a) Except as otherwise indicated by the form for record of trial by special court, or elsewhere, the require- ments in respect of the form and substance of such records are in gen- eral the same as for records of trial by general courts-martial. (h) Neither 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).) 91487°— 17 13 178 MANUAL FOE COURTS-MARTIAL. (c) Documentary evidence received by the court, the originals of which can properly be appended to the record, such as depositions, certain letters, recommendations to clemency, and other similar papers, will be so appended. (d) Neither the originals nor copies of writings, the originals of which can not properly be appended to the record, such as certificates of discharge, recommendations as to character, and similar papers, need be so appended. (e) 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 be 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. (h) The record will, at the end, contain sufficient ^ace 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- pared. 360. Not indexed. — The record will not be indexed. 361. Briefed. — The record wiU be briefed as prescribed for the record of a general court-martial. 362. Bound. — The record will be securely bound. The method of binding is not prescribed, but it must be such as will securely fasten together all the leaves and parts that comprise the record. Easily removable clips or paper fasteners will not be used for this purpose. Section III. SUMMARY COURTS-MARTIAL. 363. Form and substance. — The requirements in respect of the form and substance of records of trial by summary court are indicated in the form for record of trial by summary court. The findings and sentence or acquittal only are required to be recorded and subscribed by the summary court as such. The action of the commanding officer on the record, with date and his signature, completes the record, except when approval by superior authority is required. Section IV. CORRECTION OF RECORDS OF TRIAL. 364. Records of general or special courts-martial. — A record of trial by general or special court-martial which by reason of omission, error, or other defect is substantially incomplete or incorrect, or which 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.) 365. 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 circumstances may permit, forward to the appointing authority, or to his successor in command, the original record of the proceedings of the court in the trial of each case. The record should be forwarded as an in- closure to an indorsement by the judge advocate, returning to the appointing authority the charges and other papers referred to him, and forwarding at the same time the required copy of the reporter's voucher. The original record of the proceedings of a general court- martial appointed by the President will be sent by the trial judge advocate directly to the Judge Advocate General of the Army. (6) Carbon copy. — The judge advocate of a general court-martial 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- ings, sentence, and exhibits not copied, the carbon copy, when one is prepared, of the record of his trial. 367. By appointing authority. — (a) Records of trial by general courts-nbartial. — After having been acted upon by the officer appoint- ing the court, or by the officer commanding for the time being, the record of each trial by general court-martial, with the decisions and orders of the appointing authority made thereon, accompanied by the statement of service, if there be any, and five copies of the order, if there be any, promulgating the case, will be transmitted directly to the Judge Advocate General of the Army. {b) Records of trial 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 by special 180 MANUAL FOB COURTS-MARTIAL. court-martial, accompanied by a copy of the order publishing the case, will be forwarded, ordinarily without indorsement or letter of transmittal, to the officer exercising general court-martial jurisdiction over the conmiand, there to be filed in the office of the judge advocate for a period of two years, at the end of which time it may be de- stroyed. (c) Records of trial hy summary courts-martial. — The several rec- ords of 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 hy summary courts-maHial, — The report of trial by summary court (copy of record of trial) w^ill, 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 be filed in the office of the judge advocate for a period of two years, at the end of which time it may be destroyed. Section VI. LOSS OF RECORDS OF TRIAL. 368. Action to be taken. — When, prior to miction 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. CHAPTEE XVI. COURTS-MARTIAL— ACTION BY APPOINTING OR SUPERIOR AUTHORITY. Section I: Action on the proceedings: Page. 360. 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 184 378. Confirmation of sentences 185 379. Powers incident to power to confirm 185 380. Mtigation of punishment — definition 186 381. Mitigation or remission of sentences 186 382. 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 be known 188 392. Suspension of sentences not involving 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 191 404. Clemency applications limited to one in six months 191 181 182 MANUAL FOR COURTS-MARTXAL. Section I. ACTION ON THE PROCEEDINGS. 369. Appointing authority. — The term appointing authority 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 same are terminated, and, when the record is transmitted to him for such ac- tion, to approve or disapprove the sentence or acquittal. 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 proceedings and order the execution of the sentence in a case of conviction. (Digest, p. 554, XIV, A, 1.) 370. Record of action by appointing authority. — ^Upon the receipt of the proceedings by the appointing authority, he will state at the end thereof in each case his decisions and orders. 371. Sentence not effective until approved. — ^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. (A. W. 46.) The acquittal of the accused does not entitle him to be released at once from confinement as in cases before civil courts. The acquittal is not effective until it has been acted on by the proper reviewing authority. But the announcement of the result of trial in orders is not essential to the validity of the sentence or acquittal. It is not necessary for the reviewing authority to approve the -findings and proceedmgs, 372. Effect of approval and disapproval. — While approval gives life and operation to a sentence, disapproval, on the other hand, nullifies 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 determinate act putting an end to the proceedings in the particular case and rendering them entirely nugatory and inoperative ; and the legal effect of a disapproval is the same whether or not the officer disapproving is authorized finally to confirm the sentence. But to be thus operative a disapproval should be expressed. The effect of the entire disapproval of a sentence is not merely to annul the same as such but also to prevent the accruing of any disability or for- feiture, which would have been incidental upon an approval. (Di- gest, p. 563, XIV, E, 9, b, (1).) 373. Manner of approval. — The approval of the sentence should prop- erly be of a formal character. The article requires the sentence to be approved. A formal approval of the findings only does not meet the requirement of the article. The sentence should be 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, p. 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 who has been tried by general court-martial pro- ceeds with his command, from the department in which he has been tried to another department, before action has been taken on his case by the reviewing authority, the commanding general of the depart- ment in which he has been tried is the proper reviewing authority of the case. (Digest, p. 554, XIV, A, 3.) 376. Appointing authority must act in person. — The appointing au- thority can not delegate to an inferior or other officer his function as reviewing authority as conferred by the forty-sixth article of war; nor can he authorize a staff or other officer to subscribe for him his decision and orders on the proceedings. He will sign in his own hand the action taken by him on the proceedings, his rank and the fact that he is the commanding officer appearing after his signature. 184 MANUAL FOR COUBTS-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 finding of guilty of a lesser included offense when, in the opinion of the authority having power to approve, the evidence of record requires a finding of only the lesser degree of guilt ; and (h) The power to approve or disapprove the whole or any part of the sentence. (A. W. 47.) The authority here conferred to approve only so much of a find- ing of guilty as involves a finding of guilty of a lesser included of- fense is coextensive with the power of courts-martial to convict of lesser included offenses. The more frequent occasions for the ex- ercise of this authority are indicated below. (1) Affray. (a) Assault. (h) 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. (h) Attempt to commit. (c) Felonious assault. (d) Assault and battery. (5) Mayhem. (a) Assault with intent to commit. (h) Assault and battery. (6) Eape. (a) Assault with intent to commit rape. (h) Assault and battery. (c) Assault. (7) Eobbery. (a) Assault with intent to rob. (h) Larceny from the person. (c) Assault and battery. (d) Assault. (8) Desertion. (a) Attempt to desert. (&) Absence without leave. (9) Willful disobedience of superior officer^ (a) Failure to obey. COURTS-MARTIAL — APPOINTING OR SUPERIOR AUTHORITY. 185 (10) Willful disobedience of noncommissioned officer. (a) Failure to obey. (11) Eefusal to receive and keep prisoners. (a) Failure to receive and keep. (12) Quitting post to plunder or pillage. (a) Quitting post. (13) Drunk on duty. (a) Drunk. (14) Conduct unbecoming an officer and gentleman. (a) Conduct to the prejudice of good order and military discipline. 378. Confirmation of sentences. — ^In the following cases confirmation by the President is required before the sentence of a court-martial is carried into execution: (a) Any sentence respecting a general officer. (h) 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 a brigadier general 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. (g) Any sentence extending to the suspension or dismissal of a cadet, and (d) Any sentence of death, except in the cases of persons convicted in time of war of murder, rape, mutiny, desertion, or as spies, and in such excepted cases a sentence of death may be carried into execution upon confirmation of 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. (A. W. 48.) [Note. — For statement by whom a sentence of dismissal from service or dis- honorable discharge imposed by National Guard courts-martial, not in the serv- ice of the United States, must be approved before its execution, see sec. 107, act of June 3, 1916, 39 Stat., 166, Appendix 2, post.^ 379. Powers incident to power to confirm. — The power to confirm the sentence of a court-martial shall be held to include — (a) The power to confirm or disapprove a finding, and to confirm so much only of a finding of guilty of a particular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the authority having power to confirm, the evidence of record requires a finding of only the lesser degree of guilt ; and (h) The power to confirm or disapprove the whole or any part of the sentence. (A. W. 49.) . 186 MANUAL FOR COURTS-MARTIAL, The manner of the exercise of the power conferred upon confirm- ing authorities is indicated in the remarks in paragraph 377 relating to the power incident to approve a sentence as provided for under A. W. 47. 380. Mitigation of punishment — ^Definition. — By mitigating a punish- ment is meant a reduction in quantity or quality, the general nature of the punishment remaining the same. (Digest, p. 177, CXII, B.) 381. Mitigation or remission of sentences. — The power to order the execution of the sentence adjudged by a court-martial shall be held to include inter alia the power to mitigate or remit the whole or any part of the sentence, but no sentence of dismissal of an officer and no sentence of death shall be mitigated or remitted by any authority inferior to the President. Any unexecuted portion of a sentence adjudged by a court-martial may be mitigated or remitted by the military authority competent to appoint, for the command, exclusive of penitentiaries and the United States Disciplinary Bar- racks, in which the person under sentence is held, a court of the kind that imposed the sentence, and the same power may be exer- cised by superior military authority; but no sentence extending to the dismissal of an officer or loss of files, no sentence of death, and no sentence approved or confirmed by the President shall be remitted or mitigated by any other authority. The power of remission and mitigation extends to all uncollected forfeitures adjudged by sen- tence of a court-martial. (A. W. 50.) 382. Mitigation, when permissible. — A sentence providing for dis- honorable discharge only can not be mitigated. Subject to the limi- tations expressed in the Executive order prescribing maximum limits of punishment, forfeiture of pay adjudged by a court-martial may be mitigated to detention of pay for a like period, or less, and confine- ment at hard labor may be mitigated to hard labor without confine- ment for a like period or less. A sentence of dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for a definite period may be mitigated to confinement at hard labor and a forfeiture of two-thirds of the soldier's pay per month for a period not exceeding that prescribed in the sentence. 383. 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 as reduced. (Bui. 12, p. 5, War Dept., 1912.) 384. Commutation of sentences. — The power to commute sentencea imposed by military tribunals, not being vested in military com- manders, can be exercised by the President alone. Therefore a department commander can not commute to confinement at hard labor a sentence of dishonorable discharge awarded an enlisted man. COURTS-MARTIAL — ^APPOINTING OR SUPERIOR AUTHORITY. 187 386. Adding to sentences. — Neither the reviewing authority nor any other officer is authorized to add to the punishment imposed by a court-martial. Where post orders classify all soldiers at a post according to their conduct, and provide that soldiers undergoing sentence of a court-martial will be denied pass privileges until the sentence is completed, such a provision adds to the punishment and is unlawful. (Bui. 46, p. 7, War Dept., 1914.) 386. Sentences in excess of legal limit. — Where a sentence in excess of the legal limit is divisible, such part as is legal may be approved and executed. (Digest, p. 564, XIV, E, 9, c.) Thus: 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 itated. — ^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 deseiii, 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 deserter's pay, under A. K. 127, 1913. (12 Comp., 328; 15 idem., 661.) 389. Place of confinement — Change of. — The authority which has designated the place of confinement or higher authority may change the place of confinement of any prisoner under the jurisdiction of such authority; but when a military prison or post has been desig- nated as the place of confinement of a prisoner under sentence, no power is competent to increase the punishment by designating a penitentiary as the place of confinement. 390. Loss of files. — Where a court-martial convened by a department commander for the trial of an officer sentences the accused to the 188 MANUAL FOE COURTS-MARTIAL. 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- pension, together with a copy of the proceedings of the court. (A. W. 51.) 392. Suspension of sentences not involving dishonorable discharge. — The authority competent to order the execution of a sentence ad- judged by a court-martial may, if the sentence involve neither dis- missal nor dishonorable discharge, suspend the execution of the sentence in so far as it relates to the forfeiture of pay or to con- finement, or to both ; and the person under sentence may be restored to duty during the suspension of confinement. At any time within one year after the date of the order of suspension such order may, for sufficient cause, be vacated and the execution of the sentence directed by the military authority competent to order the execution of like sentences in the command, exclusive of penitentiaries and the United States Disciplinary Barracks, to which the person under sentence belongs or in which he may be found; but if the order of suspension be not vacated within one year after the date thereof the suspended sentence shall be held to have been remitted. (A. W. 53.) 393. Suspension of sentences of dishonorable discharge. — The authority competent to order the execution of a sentence including dishonor- able discharge may suspend the execution of the dishonorable dis- charge until the soldier's release from confinement ; but the order of suspension may be vacated at any time and the execution of the dishonorable discharge directed by the officer having general court- martial jurisdiction over the command, exclusive of penitentiaries and the United States Disciplinary Barracks in which the soldier is held, or by the Secretary of War. (A. W. 52.) The object in seeking the legislation contained in A. W. 52 was to further the plan of giving soldiers convicted of purely military offenses an oppor- tunity to reclaim themselves and gain restoration to the colors COURTS-MARTIAL — APPOINTING OR SUPERIOR AUTHORITY. 189 through service in disciplinary companies. Reviewing authorities will aid in the accomplishment of this object by discriminating action in passing upon sentences. 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 j)lace 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- mded^ 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, Kans., or one of its branches will be designated as the place of con- finement of all general prisoners other than residents of Porto Kico, the Canal Zone, Hawaiian Islands, or the Philippine Islands who are to be confined for six months or more and who are not to be con- fined in a penitentiary pursuant to the preceding paragraph. From time to time detailed instructions will be issued as to which of the 190 MANUAL FOR COURTS-MARTIAL. barracks shall be designated and as to when the prisoners shall be transferred to them. 398. When confinement in post will be directed. — ^A military post, station, or camp will be designated as the place of confinement of any general prisoner whose case does not come within the terms of paragraphs 396 and 397 of this section. 399. Cooperation of reviewing authorities. — The successful segrega- tion of general prisoners according to the grade of their offense as prescribed by the three preceding paragraphs must depend to a con- siderable 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, includ- ing so much of the proceedings as will give the charges and specifi- cations, the pleas, findings, and sentence, and the action and remarks of the reviewing authority will be announced in general orders issued from the War Department or in general court-martial orders from the headquarters exercising general court-martial jurisdiction. If the 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 papers required to be sent to the commanding officer of the post or other places of confinement where the sentence of confinement is to be executed. Trials by special courts-martial will also be published in orders similar in form to general court-martial orders. (For forms, see Appendix 11.) 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 authority will, when practicable, be of the same date. When this is not practicable,^ the order will give the date of the action of the reviewing authority, 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 parol© which proper authority revokes or is delivered to the civil authorities under A. W. 74. It is appropriate for the appointing authority to consider, at the time of approval, confinement served by an accused prior thereto, and in a proper case 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 discharge, the period of confinement on the first sentence will terminate upon the date of the approval of the second sentence, leaving to be ex- cuted only the confinement imposed by the second sentence. {O, M, C, M., 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 only to unexecuted portions of a sentence. If the punishment be one imposed by a gen- eral court-martial, it may be remitted or mitigated only by an officer 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 other 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. — Re- quests to remit the dishonorable discharge under a suspended sen- tence of dishonorable discharge are requests for clemency, and will be made to the authority empowered to extend clemency. 404. Clemency applications limited to one in six months. — It appearing that the expenditure of much unnecessary time and labor is involved in the reexamination in the War Department upon further applica- 192 MANUAL FOR COUETS-MARTIAL. tions for clemency of cases relating to military prisoners which have received recent and thorough consideration in connection with prior applications, the Secretary of War has directed that where such further application is received at the War Department within six months of such prior consideration the case will not be reexamined unless there be set forth in the application new and material reasons for the granting of clemency, but that the applicant will be advised of the recent consideration arid of the action had thereon. CHAPTER XVII. PUNITIVE ARTICLES. Section I: Enlistment: Muster: Returns: Page. 405. Fifty-fourth article 196 I. Fraudulent enlistment . 197 406. Fifty-fifth article 197 I. Unlawful enlistment or muster in 198 407. Fifty-sixth article 198 I. Making false muster 199 II. Signing, etc., false muster rolls 199 III. Taking money, etc., on muster or signing muster rolls 199 IV. Mustering as an officer or soldier one who is not 199 408. Fifty-seventh article 200 I. Making false returns 200 II. Omitting to render returns 200 Section II: Desertion: Absence toithout leave: 409. Fifty-eighth article 201 I. Desertion 202 II. Attempting to desert 202 410. Fifty-ninth article 1 202 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 209 II. Disobeying superior officer 209 416. 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 91487°— 17 14 193 194 MANUAL FOE COURTS-MARTIAL. Section III: Disrespect: Insuhordination : Mutiny — Continued. 417. Sixty-sixth article — Continued. III. Joining in a mutiny (or sedition) 214 IV. Exciting a mutiny (or sedition) 214 V. Causing a mutiny (or sedition) 214 418. Sixty-seventh article 215 I. Failure to suppress mutiny (or sedition) 215 II. Failure to give information of mutiny (or sedition) 216 419. Sixty-eighth article 216 I-IV. Refusing to obey or assaulting, etc., officer or non- commissioned officer who is attempting to suppress a quarrel, fray, or disorder 217 Section IV: Arrest: Confinement: 420. Sixty-ninth article 218 I. Breach of arrest 218 II. Escape from confinement 219 421. Seventy-first article 219 I. Refusing to receive or keep prisoners 220 422. Seventy-second article 220 I. Failure to render report as prescribed 220 423. Seventy-third article 221 I. Releasing prisoner without proper authority 222 II. Suffering prisoner to escape through neglect 222 III. Suffering prisoner to escape through design 223 424. Seventy-fourth article 223 I. Refusing to deliver accused persons 225 II. Refusing to aid in apprehending accused persons 225 Section V: War offenses: 425. Seventy-fifth article 225 I. Misbehavior before the enemy , 226 II. Running away before the enemy 226 III. Shamefully abandoning or delivering up any command. 226 IV. Speaking words Inducing these acts 227 V. Casting away arms or ammunition 228 VI. Quitting post or colors to plunder or pillage 228 VII. Occasioning false alarms 228 426. Seventy-sixth article , 229 I. Subordinates compelling commander to surrender 229 427. Seventy-seventh article 229 I. Making known parole or countersign 230 II. Giving different parole or countersign 230 428. Seventy-eighth article 230 I. Forcing a safeguard 231 429. Seventy-ninth article 231 I. Neglecting to secure captured public property 232 II. Wrongful appropriation of captured public property 232 430. Eightieth article 232 I. Dealing in captured or abandoned property 233 II. Failure or delay in reporting receipt of captured or aban- doned property 233 PUNITIVE ARTICLES. 195 Section V: War offenses — Continued. Pag«. 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 236 Section VI: Miscellaneous crimes and offenses: 433. 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 244 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 246 I. Using provoking speeches or gestures 247 441. Ninety-first article 247 I. Fighting or promoting a duel 248 II. Being concerned in or conniving at fighting a duel__ 248 III. Failing to report knowledge of a challenge 248 442. Ninety-second article 248 I. Murder 249 IL Rape 251 443. Ninety-third article .^ 252 I. Manslaughter 253 II. Mayhem 254 III. Arson 254 IV. Burglary 255 V. Larceny 257 VI. Robbery 262 VII. Embezzlement 264 VIII. Perjury 264 IX. Assault with intent to commit any felony 266 1. Assault with intent to murder 268 2. Assault with intent to commit manslaughter 269 3. Assault with intent to commit rape 270 196 MANUAL FOE COUBTS-MAKTIAL. Section VI: Miscellaneous crimes and offenses — Continued. Page. 443. Ninety-third article — Continued. IX. Assault with intent to commit any felony — Continued. 4. Assault with intent to rob 270 5. Assault with intent to commit sodomy 271 X. Assault with intent to do bodily harm 272 444. Ninety-fourth article 272 I. Making or causing to be made a false or fraudulent claim ^ 274 II. Presenting or causing to be presented for approval or payment a false or fraudulent claim 275 III. Entering into an agreement or conspiracy to defraud the United States through false claims 275 IV. Making, using, procuring, or advising the making or use of a false writing or other paper in connection with claims 276 V. False oath in connection with claims 277 VI. Forgery, etc., of signature in connection with claims. 277 VII. Delivering less than amount called for by receipt 277 VIII. Making or delivering receipt without having knowl- edge that the same is true 278 IX. Embezzlement, misappropriation, sale, etc., of military property . 278 X. Purchasing or receiving in pledge of military property. 280 445. Ninety-fifth article 280 I. Conduct unbecoming an officer and gentleman 281 446. Ninety-sixth article 281 I, Disorders and neglects to the prejudice of good order and military discipline 282 II. Conduct of a nature to bring discredit upon the mili- tary service 283 III. Crimes or offenses not capital 283 Section I. ENLISTMENT— MUSTER— RETURNS. FIFTY-FOURTH ARTICLE. 405. Any person who shall procure himself to be enlisted in the military serv- ice 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. Definitions and Principles. A fraudulent enlistment is an enlistment procured by means of a wiflful misrepresentation in regard to a qualification or disqualifica- tion for enlistment, or by intentional concealment of a disqualifica- tion which has had the effect of causing the enlistment of a man not qualified to be a soldier and who but for such false representation or concealment would have been rejected. PUNITIVE ARTICLES. 197 'Willful means intentional, thus excluding cases of mistake or for- getfulness. Misrepresentation and concealment include any act, statement, or omission, however made, which has the effect of conveying an untruth or concealing the truth concerning the applicant's qualifications or disqualifications for enlistment. The misrepresentation or concealment may be in matters which are designed to open the door to inquiry concerning the qualifications or disqualifications for enlistment, such as questions as to previous service, previous applications for enlistment, etc. The qualifications or disqualifications may be prescribed by law, regulations, or orders. Answers to questions having no bearing on the applicant's quali- fications for enlistment, such as questions as to applicant's name, address, or immaterial statements as to age, are not sufficient. Analysis and Proof. The article applies only to enlisted men. The article defines one offense, i. e., fraudulent enlistment. I. FRAXTDULENT ENLISTMENT. PBOOF. {a) The enlistment of the accused in the military service as alleged. (b) That the accused willfully misrepresented a certain fact or facts regarding his qualifications or disqualifications for enlistment, or willfully — that is, intentionally — concealed a disqualification, as alleged. ( Suffers to be Lost, Spoiled, Damaged, or Wrongfully disposed of tary prop- erty be- longing to the United States. 238 MANUAL FOB COUBTS-MARTIAL. These offenses may be briefly treated under the heading " Suffering military property to be lost, etc." PEOOF. (a) That certain military property was lost, spoiled, damaged, or wrongfully disposed of in the nianner alleged. (h) 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 alleged. EIGHTY-FOURTH ARTICLE. 434. Any soldier who sells or wrongfully disposes of or willfully or through neglect injures or loses any horse, arms, ammunition, aceouterments, equip- ment, clothing, or other property issued for use in the military service, shall be punished as a court-martial may direct. Definitions and Principles. See definitions under A. W. 80, pages 232, 233. Aceouterments applies in the military sense to those parts of the soldier's equipment which are issued by the Ordnance Depart- ment * * * iix connection with his arms and ammunition, such, for example, as belts and cartridge pouches. (Digest, p. 1084.) Clothing includes all articles of clothing whether issued under a clothing allowance or otherwise, for example, overcoats and sweaters 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 : \iiy soldier who Sells or Wrongfully disposes of or Willfully f Injures Through neglect or Loses Any Horse, Arms, Ammunition, Aceouterments, Equipment, Clothing, or other property Issued foe 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. SEUDING OR WRONGFULLY DISPOSING OF MILITARY PROPERTY. See matter under A. W. 80, Item I. PBOOF. {a) That the accused soldier sold or otherwise disposed of cer tain property in the maimer 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. U. WII4LFUL1LY OR THROUGH NEGLECT INJURING OR LOSING MILITARY PROPERTY. A wUlful mjury or loss is one that is irUentionally occasioned. A loss or injury is occasioned throujgh 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.) Clothing includes all 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 military service. PEOOF. {a) That certain property was injured in a certain way or lost, as alleged. {h) 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 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, 240 MANUAL FOR COURTS-MAETIAL. he shall be punished as a 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. Definitions and Principles. The article does not require that the accused shall have become drunk, 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 inebriated, to go upon any duty of importance, while in general in- volving an injustice to the individual, is also a reprehensible act and a military offense in the superior who knowingly suffers it. But the fact that he was already intoxicated can not render the party himself any the less legally liable under the article, if, after having entered upon the duty, his intoxication 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. 944, 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 article requires no particular degree of drunkenness, and if the ac- cused 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 necessarily a military duty. (Winthrop, p. 949.) PUNITIVE ARTICLES. 241 The words '' on duty," as used in this article, have also received an authoritative interpretation. As applied to the commanding officer of a post, or of 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 case of other officers, or of enlisted men, the term " on duty " has been held to relate to the performance of duties of routine or detail, in garrison or in the field ; the words " off duty," in respect to such persons, relating to such periods or occasions when, no duty being required of them by orders or regulations, officers and men are said to occupy that status of leisure known to the service as being " off duty." (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 he may in general be charged with an offense under this article. (Digest, p. 127.) 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 who is relieved from duty at a post and ordered to remain there to await orders, and is found drunk during such status, is not chargeable under this article. Analysis and Proof. This article applies to any person subject to military law. See article 2. The article defines one offense, namely, being found drunk on duty. I. BEING FOUND DRUNK ON DUTY. (a) That the accused was on a certain duty, as alleged. (h) That he was found drunk while on such duty. 91487^—17 17 242 MANUAL FOR COUETS-MARTIAL. EIGHTY-SIXTH ARTICLE. 436. Any sentinel who is found drunk or sleeping upon his post, or who leaves it before he is regularly relieved, shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct ; and if the offense be committed in time of peace, he shall suffer any punishment, except death, that a court-martial may direct. Definitions and Principles. As to drunkenness, see matter under eighty-fifth article, page 240. The term " sentinel " does not include a loatcJinmri, A sentinel is on post within the meaning of this article not only when he is walking a duly designated sentinel's post, as is ordinarily the case in garrison, but also " when he may be stationed in 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. PEOOF. {a) That the accused soldier was posted as a sentinel on a certain post, as alleged. (&) That he was found drunk while on such post. II. BEING FOUND SLEEPING ON POST. The fact that the accused had been previously overtaxed by exces- sive guard duty is not a defense, although evidence to that effect may be received in extenuation of the offense. PROOF. {a) That the accused soldier was posted as a sentinel on a certain post, as alleged. (b) That he was found sleeping while on such post. III. LEAVING POST BEFOltE BEING RELIEVED. The offense of leaving post is not committed when a sentinel goes an immaterial distance from the point, path, area, or object which was prescribed as his post. PUNITIVE ARTICLES. 243 PROOF. (a) That the accused soldier was posted as a sentinel on a certain post, as alleged. (b) That he left such post without being regularly relieved. EIGHTY-SEVENTH ARTICLE. 437. Any officer commanding in any garrison, fort, barracks, camp, or other place where troops of the United States may be serving who, for his private advantage, lays any duty or imposition upon or is interested in the sale of any victuals or other necessaries of life brought into such garrison, fort, barracks, camp, or other place for the use of the troops, shall be dismissed from the service and suffer such other punishment as a court-martial may direct. Definitions and Principles. See the terms of the article. Analysis and Proof. This article applies to commanding officers only. The article defines offenses which may be treated under two heads, as follows: I. Laying a duty or imposition upon the bringing in of victuals, etc. II. Being interested in the sale of victuals, etc. I. LAYING A DUTY OR IMPOSITION UPON THE BRINGING IN OF A commanding officer who should prohibit the entry into his camp of peddlers of vegetables for the troops, permitting it only if the peddlers pay him for the privilege, would be guilty of this offense whether any money was actually paid or not. PROOF. (a) That the accused officer was in command of a certain place where troops of the United States were serving, as alleged. (h) That he laid a certain duty or imposition upon the bringing into such command of victuals or other necessaries of life for the use of such troops, as alleged. (c) That such duty or imposition was laid for his own private advantage. TJie interest need not be a direct interest, such as that attaching to a partnership, or part ownership, of the articles introduced for sale, but may be one of an indirect or contingent character, as, for in- stance, an interest arising from an agreement or mutual understand- 244 MANUAL FOR COURTS-MARTIAL. ing between the officer and the owner of the supplies that the former shall receive a percentage on the sales, or a commission on all profits above a certain sum, or some present of money or goods in return for his sanction of the speculation or promotion of the business. (Win- throp, p. 870.) Thus a commanding officer commits this offense when he agrees with a peddler to exclude others in consideration of some advantage to himself. A commanding officer might become interested in the sale of ar- ticles by the post exchange within the meaning of this article. PROOF. {a) That the accused officer was in command of a certain place where troops of the United States were serving, as alleged. {h) 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, does violence to, or wrongfully interferes with any person bringing provisions, supplies, or other necessaries to the camp, garrison, or quarters of the forces of the United States shall suffer such punishment as a court-martial may direct. Definitions and Principles. See the terms of the article. This article in no way interferes with the lawful powers of a military commander to exclude persons or supplies inimical to health or good order of his command. The purpose of this article is to prevent the diminishing or cutting off of the supply of necessaries brought in by private persons through any abuse, intimidation, doing violence to, or wrongfully interfering with such persons. The prohibition against interference, etc., therefore, applies not only while such persons are coming to the camp, etc., but also while they remain and during their return therefrom. The wrongful interference contemplated would include not only any wrongful act not included in the terms " abuse, etc.," which prevents, obstructs, or delays the movements of the person, but any wrongful interference with the supplies themselves, such as stealing or destroying them. Analysis and Proof. This article applies to any person subject to military law. The article defines a number of offenses which may be briefly treated under one head, as follows: PUNITIVE ARTICLES. 245 I. INTIMIDATING, DOING VIOLENCE TO, OR WRONGFULLY INTERFERING WITH PERSONS BRINGING NECESSARIES. PROOF. (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 law who commits any waste or spoil, or willfully destroys any property what- soever (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 five, shall be dismissed from the service, or otherwise punished, as a court-martial may direct. Definitions and Principles. See the terms of the article and the definitions under the respective offenses as given below. Analysis and Proof. This article divides itself into two parts, one embracing all persons subject to military law, and the other commanding officers only. The article defines a number of offenses which may be briefly treated under the following headings: I. Committing any waste or spoil. II. Willfully destroying property. III. Committing depredation or riot. IV. Refusing or omitting to see reparation made. I. COMMITTING ANY WASTE OR SPOIL. The terms " waste " or " spoil " as used in this article refer to such acts 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. PROOF. (a) That the accused being with a certain command in quarters, camp, garrison, or on the march, committed waste or spoil on certain property in the manner alleged. (b) That such acts were not ordered by his commanding officer. 246 MANUAL FOR COURTS-MAETIAL. II. WILLFULLY DESTROYING PROPERTY. To be destroyed it is not necessary that the property be com- pletely demolished or annihilated. It is sufficient if it is so far injured as to be useless for the purpose for which it was intended. PROOF, {a) That the accused being with a certain command in quarters, camp, garrison, or on the march, destroyed certain property, as alleged. {h) That such destruction was willful and was not ordered by his commanding officer. in. COMMITTING DEPREDATION OR RIOT. The terms " any kind of depredation or riot," include plundering, pillaging, robbing, and any other willful damage to property jiot included in the preceding specific terms of the article. Injuries to persons are not made punishable by this article. PEOOF. («) 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 offense. PROOF. . (^) That the accused was the commanding officer of a certain com- mand in quarters, garrison, camp, or on the march, as alleged. (h) That a complaint was duly made to him by a certain person of damage to or loss of certain property occasioned by troops of the accused's command, as alleged. {c) That the accused either refused to see reparation made or omitted in the manner alleged to see reparation made to the party injured in so far as the offender's pay would go toward such repara- tion. NINETIETH ARTICLE. 440. No person subject to military law shall use any reproachful ^ provoking speeches or gestures to another ; and any person subject to military law who offends against the provisions of this article shall be punished as a court- marti&l may direct. 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 gestures are such as tend to exasperate or to arouse anger and resentment. Analysis and Proof. This article applies to any person subject to military law. The article defines offenses which may be treated under one heading, as follows : I. USING PROVOKING SPEECHES OR GESTURES. PROOF. (a) That the accused used certain speeches or gestures to a certain person, as alleged. (h) 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 headings : 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 FOR COURTS- MARTIAL. I. FIGHTING OR PROMOTING A DUEL. Fighting 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 act by which a duel is intentionally furthered, encouraged, or incited, whether the duel takes place or not. PROOF. (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. PROOF. (a) That the accused was concerned in or connived at fighting a certain duel in the mamier alleged. in. 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 is 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. PROOF. (a) That the accused knew that a certain challenge had been sent, or was about to be sent, as alleged. (h) 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 to military law who commits murder or rape shall suffer death or imprisonment for life, as a court-martial may direct; but no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace. PUNITIVE ARTICLES. 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. See article 2. The article defines two offenses, as follows : I. Murder. II. Kape. 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. 683.) The same principles apply to the arrest of a soldier by ofiicers or soldiers authorized to make the particular arrest. A party of soldiers left their caftlp 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 duty, or of superior orders, are justifiable, and he will be protected against the consequences, unless they are manifestly beyond the scope of his authority, and such that a man of ordinary sense and understanding would know to be illegal, where he acts in good faith and without malice." (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 duty to prevent escape 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 be imminent, and no necessity will exist until the person, if not in his own house, has retreated as far as he safely can. The person doing the killing must not have been the aggressor and intentionally pro- voked the difficulty; but if he withdraws in good faith and his adversary follows and renews the fight, the latter becomes the aggressor. The death must take place within a year and a day of the act or omission that caused it, and the offense is committed at the place of such act or omission although the victim may have died elsewhere. Malice does not necessarily mean hatred or personal ill will 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 act, or that the intention to kill must have previously existed. It is sufficient that it exist at the time the act is committed. (Clark, pp. 187, 188.) Malice aforethought may exist when the act is unpremeditated. It may mean any one or more of the following states of mind preceding or coexisting with the act or omission by which death is caused; (a) An intention to cause the death of, or grievous bodily harm to, any PUNITIVE ARTICLES. 251 person, whether such person is the person actually killed or not (ex- cept when death is inflicted in the heat of a sudden passion, caused by adequate provocation) ; (b) knowledge that the act which causes the death will probably cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) intent to commit any felony (d) an intent to oppose^ force to an officer or other person law- fully engaged in the duty of arresting, keeping in custody, or im- prisoning any person, 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.) "proof. (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. (b) 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 consent is not guilty of this offense ; but he is guilty when he assists another man in having such carnal knowledge. Any penetration, however slight, of the woman's genitals is suffi- cient carnal knowledge, whether emission occurs or not. The offense may be committed on a female of any age, on a man's mistress, or on a common harlot. Force, actual or constructive, and a want of consent are indis- pensable in rape, but the force involved in the act of penetration is alone sufficient force where there is in fact no consent. Where there is actual consent to the connection, though such con- sent be obtained by fraud, there is no rape; thus, where a woman agrees to connection with a physician on his false representation that the act is part of the required treatment, or where a man successfully passes himself off to a woman as her husband and is admitted by her to connection as such, the crime of rape is not committed. 252 MANUAL FOR COURTS-MARTIAL. There is no consent where the woman is so idiotic as to be in- capable of consenting, and a man having connection w^ith her not believing that he has her consent is guilty of rape. So also where the woman is insensible, unconscious, or asleep, or where her apparent consent was extorted by violence to her person or fear of sudden violence. A child under the age of 10 is presumed incapable of consenting. Mere verbal protestations and a pretense of resistance do not of course show a want of consent, but the contrary, and where a woman fails to take such measures to frustrate the execution of the man's design as she is able to and are called for by the circumstances the same conclusion may be drawn. It has been said of this offense that " it is true that rape is a most detestable crime * * * ; but it must be remembered that it is an accusation easy to be made, hard to be proved, but harder to be de- fended by the party accused, though innocent." (a) That the accused had carnal knowledge of a certain female, as alleged ; (h) 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. V. Larceny. VI. Eobbery. VII. Embezzlement. VIII. Perjury. IX. Assault with intent to commit any felony. X. Assault with intent to do bodily harm. PUNITIVE ARTICLES. 253 I. MANSLAUGHTER. Manslaughter is unlawful homicide without malice aforethought and is either voluntary or involuntary. Voluntary manslaughter is where the act causing the death is committed in the heat of sudden passion caused by provocation. Involuntary manslaughter is homicide unintentionally caused in the commission of an unlawful act not amounting to a felony, nor likely to endanger life, or by culpable negligence in performing a lawful act, or in performing an act required by law. (Clark, pp. 197, 204.) In voluntary manslaughter the provocation must be such as the law deems adequate to excite uncontrollable passion in the mind of a reasonable man; the act must be committed under and because of the passion, and the provocation must not be sought or induced as an excuse for killing or doing bodily harm. (Clark, p. 197.) The killing may be manslaughter only even if intentional, but where sufficient cooling time elapses between the provocation and the blow the killing is murder, even if the passion persists. Instances of adequate provocation are: Assault and battery, inflicting actual bodily harm or a gross insult; an unlawful imprisonment; and the sight by a husband of an act of adultery committed by his wife. If the person so assaulted or imprisoned, or the husband so situated at once kills the offender or offenders in a heat of a sudden passion caused by their acts, manslaughter only has been committed. Instances of inadequate provocation are: Knowledge by the brother of a female of her seduction; insulting or abusive words or gestures; and injuries to property. In involuntary manslaughter in the commission of an unlawful act the act must be malum in se and not Tnerely malum^ prohibitum. 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 is guilty of manslaughter at least. Instances of culpable negligence in performing a lawful act are: Negligently conducting target practice so that the bullets go in the direction of an inhabited house within range; pointing a pistol in fun at another and pulling the trigger, believing, but without tak- ing reasonable precautions to ascertain, that it would not be dis- charged; carelessly leaving poisons or dangerous drugs where they may endanger life. Instances of culpable negligence in performing an act required by law are : Gross negligence or inattention by those in charge of con- 254 MAl^UAL FOR COURTS-MARTIAL. trolling or operating trains in the discharge of their duties ; culpable failure on the part of a parent to provide food, shelter, and medical attendance for his helpless child where able to do so. Where there is no legal duty to act there can, of course, be no neglect. Thus where a stranger makes no effort to save a drowning man, or a person allows a mendicant to freeze or starve to death, no crime is committed. PBOOF. (a) See item (a) under "Proof of murder" under ninety-second article. (h) The facts and circumstances of the case, as alleged, indicat- ing that the homicide amounted in law to manslaughter. n. MAYHEM. Mayhem at common law is " a hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary." (Bishop, vol. 2, p. 579.) The offense at common law did not include such injuries which merely disfigure, such as cutting off the nose or ear; but did include such injuries as knocking out a front tooth, or castration, which were supposed to weaken a man's 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. (a) That the accused inflicted on a certain person a certain injury in the manner alleged. (h) The facts and circumstances of tlie act showing such injury to have been inflicted intentionally and maliciously. III. ARSON. Arson, at the common law, is the malicious burning of another's house. (Bishop, vol. 2, p. 5.) The house must be the dwelling house of another, as the offense is against the habitation, not against property as such. The term " dwelling house " includes outbuildings that form part of the cluster of buildings used as a residence. A mere scorching is not a burning. To constitute a burning some part, however small, of the house must be actually consumed or disintegrated by charring or by a blaze. PUNITIVE ARTICLES. 255 A shop or store is not the subject of arson unless occupied as a dwelling. It is not arson to burn a house that has never been occu- pied or which has been permanently abandoned; but it is arson if the occupant is merely temporarily absent. It is not arson to burn one's own dwelling, whoever owns it, or even the dwelling of another at his request, and this is so even if there is an intent to burn an ad- joining house belonging to a third party ; but it is arson if such house is actually burned. A house occupied by another than the owner is a subject of arson by the owner. The burning must be willful and malicious, which excludes a burn- ing arising from negligence or mischance, unless the accused was en- gaged in the commission of a felony. Where a man, who, in setting fire to his own house to get the insurance, burns his neighbor's, he is guilty of arson in burning the neighbor's house. PROOF. (a) That the accused burned a certain dwelling house of another, as alleged. (b) Facts and circumstances indicating that the act was willful and malicious. IV. BURGLARY. Burglary at common law is the brealdng and entering, in the night, of another's dwelling house, with intent to commit a felony therein. (Bishop, vol. 2, p. 56.) To constitute burglary the house mitst be a dwelling hoiose of an- other, dwelling house including outhouses within the curtilage or the common inclosure; there must be an actual breaking, or there must be the constructive breaking involved where an entry is effected by fraud or false pretenses, by intimidation, by conspiracy with a servant or other inmate, or by descent of a chimney; there must be an entry ; the breaking and entry must both be at night ; but not nec- essarily on the same night, and there must be an intent to commit a felony in the house at the time of the breaking and of the entering, but the felony need not be committed. (Clark and Marshal, pp. 595, 596.) A store is not a subject of burglary unless part of or used also as a dwelling house as where the occupant uses another part of the same building as his dwelling ; or where the store is habitually slept in by his servants or members of his family. The house must be in the status of being occupied at the time of the breaking and entering. It is not necessary to this status that any one actually be in it; but if the house has never been occupied at all or has been left without any intention of returning to it this 256 MANUAL FOR COURTS- MABTIAL. status does not exist. Separate dwellings within the same building as a flat in an apartment house or a room in a hotel are subjects of burglary by other tenants or guests, and in general by the owner of the building himself. At common law a tent is not a subject of burglary. There must be a breaking, actual or constructive. Merely to enter through a hole left in the wall or roof or through an open window or door, even if left only slightly open and pushed farther open by the person entering, will not constitute an actual breaking ; but where there is any removal of any part of the house designed to prevent entry, other than the moving of a partly open door or window, it is sufficient. Thus opening a closed door or window or other similar fixture, or cutting out the glass of a window or the netting of the screen is a sufficient breaking. So also the breaking of an inner door by one who has entered the house without breaking, or by a servant lawfully within the house, but who has no authority to enter the par- ticular room is a sufficient breaking, but unless such a breaking is fol- lowed by an entry into the particular room with intent to commit a felony therein, burglary is not committed. There is a constructive breaking when the entry is gained by a trick, such as concealing oneself in a box ; or under false pretense, such as personating a gas or telephone inspector; or by intimidating the inmates through violence or threats into opening the door ; or through collusion with a confederate, an inmate of the house ; or by descending a chimney, even if only a partial descent is made, and no room is entered. An entry must be effected before the offense is complete; but the entry of any part of the body, even a finger, is sufficient ; and an insertion into the house of an instrument, except merely to facili- tate further entrance, is a sufficient entry. Both the breaking and entry must be in the nighttime, which at common law was the period between sunset and sunrise when there is not sufficient daylight to discern a man's fac^, and both must be done with the intent to commit a felony in the house. It is immaterial whether the felony be committed or even attempted, and where a fel- ony is actually intended it is no defense that its commission was impossible. The felony intended may be a statutory felony. {a) That the accused broke and entered a certain dwelling house of a certain other person, as specified. (h) That such breaking and entering was done in the nighttime. ((?) The facts and circumstances of the case (for instance, the actual commission of the felony) which indicate that such breaking and entering were done with the intent to commit the alleged felony therein. PUNITIVE ARTICLES. 257 V. LARCENY. Larceny at comman law is the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership therein. (Bishop, vol. 2, p. 440.) In larceny there must be a taking and carrying away. When actual physical possession is obtained and the property moved the least distance, the taking and carrying away is complete. Such possession must, however, be complete; thus, enticing a domestic animal a short distance, or seizing property secured by a chain, or causing another to drop property by knocking his hand is not a taking of such property. The taking need not be by the hands of the thief. Thus, where one, having the required intent to steal, entices a horse into his own stable without touching him, or procures an insane person to take the goods, or procures a railroad company to deliver another's trunk by changing the check on it, he is guilty of larceny. The taking must be by trespass; that is, the property must be taken from the actual or constructive possession of the owner with- out his consent. One who has a lawful right to the possession of the property of another can not steal it. Thus where an article is borrowed or hired in good faith the bailee does not commit larceny if he sub- sequently during the bailment decides to and does convert the article to his own use. But if at the time the article is borrowed, etc., the borrower intends to convert it, such a taking is by trespass and his act a larceny. And where the possession of an article is obtained by fraud, although no intent to steal existed at the time, a subsequent forming and carrying out of such intent is a larceny, as the taking and keeping possession in such a case is a continuing trespass. Thus where a horse was hired by one who really intended to go farther than he stated to the owner, but who did not intend to steal the horse, it was held that his subsequent conversion of the animal was a larceny. These rules apply to any case of hailment^ but do not apply where the owner intends to part with the ownership of the property. Wliere a carrier of goods in a bale, or a person intrusted with a trunk for safekeeping breaks bulk and appropriates part or all of the contents, he is guilty of larceny regardless of what his intention was when he received the property. The principle of the rules as to a bailee who accepts the possession of property in good faith, or who intends at the time to steal it, applies to cases of property delivered by mistake. Thus, where an article intended for one is delivered to another by mistake the latter's 91487°— 17 18 258 MANUAL FOE COURTS- MARTIAL. acceptance of the possession, knowing of the mistake and with the required intent, is a larceny ; but if he accepts it in ignorance of the mistake and in good faith as intended for him, his subsequent appro- priating to his own use is not a larceny, as there was no trespass in the taking. This same rule applies where a person is paid by mistake more money than he is entitled to. The possession of goods may be in one person although the goods themselves be in the actual manual control of another, who is said to have the custody of them. Thus, where the owner of a coin gives it to a friend to examine on the spot, he still retains the possession, and if the recipient goes away with the coin intending to steal it he is guilty of larceny. So, too, a guest at a hotel or a private house has the bare custody of articles such as those in .his room or given him for use at the table and can commit a larceny of such articles. Where a servant receives goods or coins from his master to use, care for, or employ for a specific purpose in his service, the master retains possession and the servant has the custody only and may commit larceny of them. The fact of the existence of the relation- ship of master and servant does not prevent the latter from being a bailee of the former's property, in which case the rules as to bailees apply ; for instance, a master might lend his servant a horse to use on the latter's own business. Where, however, a servant receives goods or coins from a third person on behalf of his master he has the possession of the goods or coins and can not commit a larceny of them until they have reached the possession of his master, which they do when delivered into his hands or deposited in the receptacle or place provided for the purpose. Thus, if a clerk receive some coins for his master in the course of business and places in the cash drawer or safe belonging to the master he no longer has the posses- sion of the coins and his taking of them with the requisite intent would be larceny; but he does not relinquish possession if, merely for his own convenience, he uses the safe or drawer as a hiding place. His subsequent taking of the coins would not, therefore, be larceny. . This distinction between custody and possession is of the utmost importance, for it is often very difficult to determine whether the crime is larceny or embezzlement, each particular case depending upon the peculiar circumstances. To illustrate the doctrine : Where a third person hands a clerk money to pay a bill which he owes the clerk's employer, and the clerk, instead of putting the money into bis employer's safe or other proper place, puts it into his own pocket and appropriates it, or hides it on the premises and afterwards car- ries it off, he does not commit larceny, for, as the money has not reached its destination, but is merely in transit, the master has not obtained possession, either actual or constructive. If, however, the 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 reached 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 itself, and commits larceny if he appropriates it; but if he cashes the check and appropriates the money he commits embezzlement only, as the money has never been in the master's possession. (Clark, pp. 285, 286.) Where the owner of an article delivers 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 by him. Thus where property is obtained from a dealer on the false pretense of being sent for it by a regular charge customer, or where property is bought on credit with no intention of paying, or where a bogus check is given in payment of goods or in 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 servant or agent. So where a master sends his servant with a c. o. d. package, and the purchaser induces the servant to give him the package without payment or pays with a worthless check, intend- ing to keep the package, it is larceny. The reason for the rule above stated as to an intention to pass the property preventing the taking from amounting to larceny is that the consent of the owner precludes the existence of an essential element of larceny, viz, a trespass. But where the taking overlaps the 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 offense. Thus where one gets candy from a slot machine by using a counterfeit coin, or where a customer after buying a cigar takes the whole box of matches provided by owner of the store for the use of his customer, the act in each case is a trespass, and the offenders are guilty of larceny if the other elements of that offense are present. Another application of the rule that the consent must be as broad as the taking is made in cases where the owner's intent is to pass the property in the goods only when a condition is fulfilled. Thus where goods are handed to a purchaser on a cash sale the title is not intended to pass until the price is paid; and if the person re- 260 MANUAL FOR COUBTS-MARTIAL. ceiving them runs off with the goods without paying for them and with the required intent, he is guilty of larceny. This rule applies in many analagous cases. For instance it is lar- ceny " for a man to whom money is handed to be changed to run off with it or keep it, animo furandi^ and refuse to give the change, though the intention may be that he shall keep part of it as payment for goods purchased or as a loan, for there is no consent to part with the money without receiving the change." (Clark and Marshal, p. 467.) In these cases of conditional delivery the recipient has only the bare custody and it is therefore immaterial w^heth^r the intent to steal existed at the time of the delivery, or "was formed later. The taking may be from any one having possession of the prop- erty ; hence, property may be stolen from one who himself has stolen it, and the owner of goods may steal them from a bailee with a special property in them. One retains the constructive possession of property 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 larceny, but where he intends to appropriate it at the time he assimies pos- session he is guilty of larceny, and none the less so if he intends to return it in the event that a reward is given. In larceny, as in other crimes, the evil intent and the act must coexist ; that is, as stated in the definition of larceny, the taking and removing by trespass must be with the particular intent described. But where the possession of property is obtained by a trespass the subsequent retention of the property without right is a continuing trespass, and however innocent the original intent of the trespasser, he commits larceny if while wrongfully retaining possession he has the intent to steal. Thus where an animal belonging to one person becomes mingled with the herd of another and is driven off by mis- take, without the knowledge of either person, there is a continuing trespass, and if on discovering his mistake the owner of the herd converts the animal to his own use he is guilty of larceny. The felonious intent in larceny is that entertained by a thief ; i. e., a fraudulent intent to deprive the owner permanently of his prop- erty in the goods or of their value or a part of their value. Unless PUNITIVE ARTICLES. 261 such a purpose exist with the taking and carrying away by trespass there is no-larceny. Thus j^rcj^y is not committed where the taking was without any intent at alll®ards the property, as in the case of property taken by mistake or accidentally; or where the intent was to take one's own property, as in the case of property taken under a hond fide claim of right, however unfounded ; or where the intent was to take another's property temporarily from his possession, as in the case of property taken for a temporary use, or in fun, or out of curiosity, or to keep for him, or to deprive him of the power of using it. Thus if one takes a horse merely to enable him to escape with stolen prop- erty, or takes property from a drunken friend in order to prevent him from losing it, or taking a cudgel out of the owner's hand to prevent a beating there is no larceny. Whether the required intent exists where property is taken to pawn or hold for a reward depends upon the circumstances. Some cases of taking property to pledge would come within the above rule as to temporary use, as where the intent is in good faith to redeem and return it ; but in the absence of such intent the taking is larceny. Where the taking is with the design of returning it to the owner, but in the hope of obtaining a reward, it is not larceny ; but if the purpose is to keep the property until a reward is offered it is. Taking property with the intent to sell it back to the owner or return it to him for some other consideration is, of course, more indicative of than inconsistent with the existence of the required intent. Thus, stealing a railroad ticket is none the less stealing because it was in- tended to be returned to the railroad when made use of. Once the goods are taken and removed with the felonious intent above described the offense is complete and is none the less a larceny because the thief may have had in mind a disposition of the property without benefit or advantage to himself. Thus, an intent to give it to another or to destroy it out of revenge, or to prevent its use as evi- dence or otherwise against himself or another, does not prevent the felonious taking of another's property from being larceny. In line with this principle it has been held that a servant who clandestinely took his master's oats for the purpose of feeding them to his master's horse was guilty of larceny. When a larceny has been committed a prompt repentance by the thief, followed by a return of the property or payment for it, is no defense. Under the common law personal property only can be stolen. Thus, where trees, fences, crops, or fixtures are cut down or severed by a trespasser and immediately taken away by him, there is no larceny. But should the trespasser, after cutting down some trees, for instance, leave the fallen timber and relinquish his possession. 262 MANUAL FOR COURTS- MARTIAL. the possession 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, thougfins value is less than that of the smallest coin; but if the paper is so written upon as to be evidence 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 larceny at common law. But section 287, United States Penal Code, changes this rule so as to make written instruments subject to theft and to fix their value as the amount of money due thereon. Many of the States by statute have so changed the rule. {C. M, C. J/., No. 1.) PROOF. {a) The taking by the accused of the property as alleged. (5) The carrying away by the accused of such property. {c) That such property belonged to a certain other person named or described. {d) That such property was of the value alleged, or of some value. {e) The facts and circumstances of the case indicating that the taking and carrying away were 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. Eobbery at common law is the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. (Clark, p. 323.) The felonious and forcible taking from the person of another goods or money to any value by violence or putting him in fear. (Bouvier's Law Dictionary, 15th 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 temj)orary use. It is not necessary that the person from whom the jDroperty is taken be the actual owner — it is enough if he have a possession or a cus- tody that is good against the taker. The property must be taken from the person or in his presence; but to be in the presence it is not necessary that the owner be within any certain distance of his property; it is enough if he be near enough to be in control of his property. Thus where some persons entered a house and forced the owner by threats to disclose the hiding place of valuables in an adjoining room, and then, leaving the owner 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, fiut 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. (Clark and Marshall, p. 865.) PEOOF. {a) The larceny of the property. See proof under larceny above. (b) That such larceny was from the person or in the presence of the person alleged to have been robbed. (:S TO WRITS OF HABEAS CORPUS, The following instructions in regard to returns under A. R. 998 and 999, in the cases of soldiers who have committed military offenses and are held for trial or punishment therefor, and of general prisoners, are for the information and guidance of all concerned: 1. The return under A. R. 999 will be made in accordance with Form G (Appendix 15), and if the person whose release is sought has committed the offense of fraudulent enlistment by representing himself to be of the required age, will refer, as in last paragraph of that form, to the brief of authorities which follows these instructions, and a copy of that brief will be annexed to the return. Should the court order the discharge of the party, the officer making the return, or counsel, should note an appeal pending instructions from the War Department, and he will report to The Adjutant General of the A^my the action taken by the court and forward a copy of the opinion of the court as soon as it can be obtained. 2. The return under A. R. 998 will be made in accordance with Form D (Appendix 15), but a copy of the brief of authorities is not intended to be attached to the returns to icrits of habeas corpus issuing from a State court. 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 commoa law ; II. Under the statutes ; III. Where the minor is held for punishment. I. UNDER THE COAtMON LAW. The enlistment of a minor is not avoidahle hy the minor nor 'by his parent or guardian at common law, hut is only avoidahle ivhere the right to avoid it is conferred hy 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. (Grijnley'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. Bother 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. GamUe (11 Serg. & Rawle (Pa. R.), 93) ; U. S. v. Blakeney (3 Grattan, 387, 405). In Rex v. Rothcrfield 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 viev/ 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 hear 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 Cooley's Constitutional Law, page 99, where on the authority of Ex parte Broivn (5 Cranch, C. C, 554), and United States v. Bainhridge (1 Mason, 71), it is said: Minors may be enlisted without the consent of their parents or guardians tvhen the law fails to require such consent. 393 394 MANUAL FOE COUKTS-MARTIAL. II. UNDER THE STATUTES. The pertinent statutes are the following: Sec. 1116, R. S. Recruits enlisting in the Army must 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. This section was modified by the act of March 2, 1899 (30 Stat., 978), which provides : That the limits of age for original enlistments in the Army shall be eighteen and thirty-five years. Sec. 1117, R. S. No person under the age of twenty-one years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians: Provided, That such minor has such parents or guardians entitled to his custody and control. This section is replaced by the provision of section 27, National-Defense Act of June 3, 1916 (39 Stat. 186), which reenacts it in the same words, substituting the age of 18 years for the age of 21. Sec. 1118, R. S. No minor under the age of sixteen years, no insane or intoxicated person, no deserter from the military service of the United States, and no person who has been convicted of a felony shall be enlisted or mustered into the military service. 1. The statutes confer no right upom the minor to avoid his enlistment, cer- tainly not if he be 16 years of age or over. No case has been found directly in point holding that a minor under 16 years of age, if of sufficient capacity to bear arms, may avoid his enlistment. Section 1116, 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 U. S., 157 ; In re Grimley, 137 U. S., 147 ; in re Wall, 8 Fed. Rep., 85 ; In re Davison, 21 Fed. Rep., 618 ; In re Zimmerman, 30 Fed. Rep., 176 ; In re Spencer, 40 Fed. Rep., 149 ; In re Lawler, 40 Fed. Rep., 233 ; Solomon v. Daven- port, 87 Fed. Rep., 318; Wagner v. Gibbon, 24 Fed. Rep., 135.) Section 1117, R. S., as amended, while recognizing the right of the parent to the services of the minor, confers no right in the minor to avoid his enlist- ment. See the cases cited above. In the Morrissey case the Supreme Court of the United States said that the provision of section 1116, R. S., is for the benefit of the parent or guardian * * * ly^^ ^ 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 jure a soldier — amenable to military jurisdiction. Whether the designation of the age limit of 16 years in section 1118, R. S., is such as to make the enlistment of the minor under 16 years of age void or voidable by the minor has not been decided. On principle, the minor, if of sufl^cient capacity to render military service, should not be permitted to avoid his enlistment obtained through his fraudulent statements as to his age. How- ever this may be, if the minor continued to serve and receive pay after passing that age he — acquires the status of a soldier like one who was enlisted when over 16 years without the consent of his parents, and a court-martial has jurisdiction to try and sentence him to punishment for desertion, from which sentence he can not be discharged on habeas corpus on petition of himself or his parents. (Eae parte Hubbard, 182 Fed. Rep., 76.) APPENDICES. 395 2. The statutes requiring the consent of the parent or guardian of a minor to his enlistment {seetiqn 1117, R. S., amended by section 27, act of June 3, 1916) 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 consent, where the minor is not held for trial or punishment for a military offense. In support of this proposition see the cases cited under II, proposition 1. 3. A parent or guardian ivith 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 10, who has continued to serve and receive pay after pa&sing that age, acquires the status of a soldier like one who was enlisted when over 16 without the consent of his parents, and a court-martial has jurisdiction to try and sentence him to punishment for desertion from which sentence he can not be discharged on habeas corpus on petition of himself or his parents. III. WHERE THE MINOR IS HELD FOR PUNISHMENT. Neither the minor nor his parent nor guardian may avoid the enlistment where the soldier is held for trial or under sentence for a military offense. In support of this proposition see the cases cited above under II, proposi- tion 1, and also the following: In re Kaufman (41 Fed. Rep., 876) ; In re Dohrendorf (40 Fed. Rep., 148) ; In re Cosenow (37 Fed. Rep., 668) ; In re Dowd (90 Fed. Rep., 718) ; In re Miller (114 Fed. Rep., 838) ; United States V. Reaves (126 Fed. Rep., 127) ; In re Lessard (134 Fed. Rep., 305) ; Ex parte Anderson (16 Iowa, 595) ; McConologue'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) ; Ese parte Rock (171 Fed. Rep., 240) ; Ex parte Hubbard (182 Fed. Rep., 76) ; Ex parte Lewkowitz (163 Fed. Rep., 646) ; United States V. WilUford (220 Fed. Rep., 291). . The reasons given for these decisions are that the enlistment of a minor in the Army without the consent of his parent or guardian required by section 1117, R. S., " is not void, but voidable only " ; that the soldier being not only de facto but de jure a soldier, he is subject to the Articles of War and may commit a military offense; and that if held for trial or punishment for a military offense, the interests of the public in the administration of justice are paramount to the right of the parent or guardian, and require that the soldier abide the consequences of his offense before the question of his dis- charge will be considered by the court. In the Miller Case (114 Fed. Rep., 396 MAXUAL FOR COUETS-MAETIAL. 842), the court supported its holding by the analogy of a minor held for pun- ishment for a civil offense, saying: , The common law, unaided by statute, fully recognizes the parents' right. to the custody and services of their minor child; but it has never been held that they could, by the writ of habeas corpus or otherwise, obtain his custody and his immunity when he was held by an officer of a civil court of competent jurisdiction to answer a charge of crime. His enlistment having made the prisoner a soldier notwithstanding his mi- nority, he is amenable to the military lata just as the citizen who is a minor is amenahle to the civil law. The parents can not prevent the law's enforcement in either case * * *. The views here cited were approved in the Reaves case (126 Fed. Rep., 127), where upon full consideration of the authorities the Circuit Court of Appeals remanded Reaves, a minor, who had deserted from the Navy, to custody of the naval authorities as represented by the chief of police who had apprehended him. In the Carver case (142 Fed. Rep., 623), the syllabus is as follows: A minor under the age of 18 years who unlawfully enlisted in the Army without the consent of his father can not be discharged from the service on a writ of habeas corpus sued out by his father so' long as he is under arrest for desertion nor until he has been discharged from such custody or has served the sentence imposed on him by the military tribunal. In the Leivkowitz case (163 Fed. Rep., 646), the syllabus reads: A minor who by misrepresenting his age has fraudulently enlisted in the Army without the consent of his parents and thereby subjected himself to punishment under military law will not be relieved from such punishment by the civil courts by discharging him on a writ of habeas corpus on the application of his parents, even though the military prose- cution is not instituted until after the writ was issued. This was followed by the unanimous opinion in the Circuit Court of Appeals in the Love case (United States v. AVilliford, 220 Fed. Rep., 291), in which the court expressly approved the views stated in the Lewkowits case, quoting section 761, R. S., relating to procedure under writs of habens corpus, which reads as follows: The court, or justice, or judge shall proceed in a summary way to determine the facts of the case by hearing the 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 military authorities and relieved of liability for his offense in favor of his mother's right to his custody. By act of July 27, 1892 (27 Stat., 278), "fraudulent enlistment and the 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, revised Articles of War, approved August 29, 1916 (39 Stat., 659), which provides that the offense "shall be punished as a court-martial may direct." A minor who procures his enlistment by wilful misrepresentation or concealment as to his qualifications for enlistment commits this offense, and the statute authorizes his punishment therefor. In general, it may be stated that where a minor has committed a military offense the interests of the public in the administration of justice are paramount to the right of the parent and require that the soldier shall abide the consequences of his offense before the right to his discharge be passed upon. The soldier should not be allowed to escape punishment for his offense, even though his parents assert their right to his services. A minor in civil life is liable to punishment for a crime or misdemeanor, even though his confinement may interfere with the rights of his parents; and the above au- thorities clearly apply the same rule to a minor held for trial or punishment /or a military offense. APPENDIX 16. ^ [Sheet 1.] WAR DEPARTMENT WAR DEPARTMENT Form No. 338. Approved by the Comptroller of the quartermaster corps Treasury April 29, 1914 PUBLIC VOUCHER Voucher No General Account. Detail Account.. COMPENSATION, CIVILIAN WITNESS APPROPRIATION I PAY, ETC. , OF THE ARMY, 191 Symbol. The United States to , Dr. Address: 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 ^vitness while in attendance- Giving deposition at for use before a court-martial from 191 ,to ,191 ,asper oprtifipatp horoon flnvs at Si "nGr dav '.. Total I CERTIFY that, as stated above, I attended as a witness for the period named, and as such the tra\ el between the places named was required. (Payee) (Do not sign in duplicate) Examined by (Account to be completely filled 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 , . 1 • fas a material witness before a court-martial duly convened at this place, "1 inclusive, jgiyi^g deposition for use of a court-martial convened under attached orders, / 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 , 191 , of favor of payee named above f or $ 397 398 MANUAL FOR COURTS-MARTIAL. OR Received ,191 , of , in cash, the sum of dollara and cents, in full payment of the above account. (This form to be used only for payment of civilian witnesses not in Government employ) »^ ~ 1 "»? S Ci !::;• o ^ a S 2 p 2 O 6 >• S E ^1 o tr < 1 pi § § B 1 a> 1 O 1 o <-t tn ci •^ 1 o 1 o 2. o B g § (0 11 1 3-' CO CO I M [Sheet 2.1 WAR DEPARTMENT WAR DEPARTMENT Voucher No Form No. 338. Approved by the Comptroller of the quartermaster CORPS General Account Treasury April 29, 1914 PUBLIC VOUCHER Detail Account.. COMPENSATION, CIVIUAN WITNESS appropriation: pay, etc., of the army, 191 Symbol The United States To , Dr. address: Object Symbol Amount U.S. Notations For mileage as a witness from to and retmn, being miles, at cents per mile For allowance as a witness while in attendance— On a court-martial at Giving deposition at for use before a court-martial from , 191 , to , 191, as per certificate hereon, days, at$ per day Total EXAMINED BY APPENDICES. 399 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) dollars and cents. Funds derived from check No on (This form to be used only for payment of civilian witnesses not in Government employ) & '< H^ tH } ^ 0) rt rQ ^ 0) •d a pj M ^ ^ r, cd o fj •o 1 s ^ ;^ 6 o o « p 11 > '3 o to a CD 1 4) 1 1-1 s o 1 o '5 o P4 1 "-d o fe o 3 s % « g _^ ^ 'S H « >► s < "u a 1 03 1 A 1 ^ h Hen I 8 1 o a o "S U) "So ■2 1 2 1 1 o E3 1 o •a 1 ^ ^» u f) A 1^ < § s 1* a S e3 iri H ^ o « ^ tf o Cx APPENDICES. 4oa WAR DEPARTMENT Form No. 350 a. Approved by the Comptroller of the Treasury April 29, 1914. [Sheet 2.] WAR DEPARTMENT (Bureau or dffice!) PUBLIC VOUCHER. Voucher No General Account. Detail Account . . REIMBURSEMENT OF TRAVELING EXPENSES Appropriation Symbol Appropriation Symbol Appropriation Symbol The United States, To , Dr. Address: For reimbursement op 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 ner itemized schftdulp. hfilow U.S. notations '■ Amount claimed, $ Object symbol Date 191 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 From— To- Via R. R. Amount. U.S. notations MEMORANDUM VOUCHER. (To be filled in and retained by paying officer) Voucher certified by . Voucher approved by Paid by check No , dated ,191 , of favor of payee named above, for $ on m Paid in cash by , (Date) Funds derived from check No on dollars and cents. 404 MANUAL FOR COUETS-MARTIAL. a 6 g ^ ^ tf » M W o o 1^ P » o ^ >■ o l_] g (l4 o ^ H > ^ « H 1 Cl> b 1 ^ 1 >> Ow 1 <^ , w 1 n HOT '•y J? 12; 1 o HH 1 ' APPENDIX 18. WAR DEPARTMENT Form No. 339. Approved by tho Comptroller of tho Treasury April 29, 1914 [Sheet 1.] WAR DEPARTMENT QUARTERMASTER CORPS PUBLIC VOUCHER PERSONAL SERVICES— REPORTER appropriation: pay, etc., of the army, 191 Symbol The United States to , Dr. address : Voucher No General Account. Detail Account.. (^3JECT Symbol Date 191 Amount U.S. Notations For services as a reporter before a convened at 1 , pursuant to Special Orders No , Department ,191 : Cases of hoiU'S before tho , at $1 per hour. . (Court, board, or commission.) . . . words, at 15 cents per 100 words words, at 10 cents per 100 words words, carbon copies, at 2 cents per 100 words. . days in going to, in attendance on, and return- (Court, board, or commission.) in going to and returning from the cotirt, being miles, at cents a mile . . . Total I CERTIFY that as i places named was re ibove stated I rendered the services named, and the travel between the quired. (Payee) EXAMINED BY (Do not sign in duplicate) (Accotmt to be completely filled in before certification, and no alteration or erasure to be made thereafter.) I CERTIFY that was employed by me as a reporter for a under the annexed authority, and that the account for his services as stated above is correct. (Title). Paid by check No , dated , 191 , of favor of payee named above, for | OR Beceived , 191 , of , in cash, the sum of dollars and cents, in full payment of the above account. 405 406 MANUAL FOR COURTS-MARTIAL. >TJ /~» o ►Tj l-i 1 y: Offense of, defined 432 Standing mute. (See Accused.) Statement : Inconsistent with plea 154 Scope of closing 290 Statement of service. (See Charge sheet.) Use of ^ 271 Statute of limitations: See Limitation on actions. Stoppage of pay: Not function of court-martial 325 Subpoena : Service of 100 Duces tecum 166 Fees for serving 191 Form for civilian witness .* p. 383 Substitution of punishment. (See Equivalents.) 422 INDEX. [References are to paragraphs except where pages are indicated by the letter "p" pre- ceding the number.] Summary court-martial: Par, Consist of one officer 7 By whom appointed 25 When one officer present : - 27 Jurisdiction 43 Limit of punishment 44 Procedure 351 Record of trial 363 Form for record 1 j p. 367 Superintendent, Military Academy: May appoint general court-martial '. . 16 Surrender : Abandoning or delivering up command 425 Subordinates compelling 426 Suspended sentence: Recommendation in case of dishonorable discharge ^ 321 May be remitted . 403 To await pleasure of President 391 When authorized . 392 Dishonorable discharge 393 Trial: When second trial authorized 149 For officer summarily dismissed 38 Tribunals, military: Kinds 3 Uniform : Kind worn by members of court 82 Veterinarians : Not available for court-martial duty 6 Victuals : Offenses concerning 437, 438 Voir dire. (/Sfee Oath to test competency.) Volunteers : Subject to military law 4 When available for court-martial duty __ 9 May be tried by Regulars : : 11 Vote: General or special court-martial ' 90 Refusal to 90 Tie 90 On finding 294 Majority only required 295 Exception in case of death penalty 295 On sentence '. 308 Vouchers, forms for; Civilian witness p. 397 Reimbursement Government employee p. 401 Reporter I p. 405 Warrant of attachment: When issued 168 Form for p. 387 INDEX. 423 [References are to paragraphs except where pages are indicated by the letter " p " pre- ceding the number.] Witnesses. {8ee Evidence.) ' Par. Process to obtain 159 Subpoenas . 160 Military 163 Civilian 164 In confinement 167 Refusal to appear or testify 170 Fees, mileage, and expenses of 183-193 Experts 192,218 Examination of 246-255 Credibility 256-262 Competency 209 Witness for prosecution: Member of court as 129, 131 ADDITIONAL COPIES OF THIS PUBUCATION MAY BE PROCUKED FROM THE SUPERINTENDENT OF DOCUMENTS GOVERNMENT PRINTING OFFICE WASHINGTON, D. C. AT 66 CENTS PER COPY V K 364 1 i -^ 'Mmm wm tM#N< l*>,*l(lt> H ) j > ,H j U •WiMMWifM* i « i 'l i li-ll l ) i l>j )(l !t |l | ! J[| 1! ; : : • : i ; i [ \ • \ i 'i i i { \ > \ 1 ■ m mM i i t u mw t w \ '"'ii ii l il i i i l i. ii i il l iii(li | iiiiijili ill i f Bli! ! !|i|! ^ IK« imj ' UMBIU| i